The FBI used faked terrorism emergencies to illegally obtain Americans' phone records: Report

The FBI used faked terrorism emergencies to illegally obtain Americans' phone records: Report
By Brian Kates
Tuesday, January 19th 2010, 10:44 AM

The FBI faked terrorism emergencies to illegally obtain more than 2,000 U.S. telephone records between 2002
and 2006, the Washington Post reported Tuesday.

FBI general counsel Valerie Caproni told the Washington Post that the FBI technically violated the Electronic Communications Privacy Act when agents invoked nonexistent emergencies to collect records.

A Justice Department inspector general's report due out this month is expected to conclude that the FBI frequently violated the law with its emergency requests, bureau officials confirmed.

The maneuver was based on a system used in the FBI's New York office in the aftermath of Sept. 11 attacks, officials said.

It involved use of an "exigent circumstances letter," a document that allowed a supervisor to declare an emergency and get the records and then - after the fact - issue a national security letter detailing the terrorism risk.

The required national security letters were sometimes concocted and covered by broadbrush generic phrases like "threats against transportation facilities," "threats against individuals" and "threats against special events," internal e-mails show.

Later FBI officials shifted to crafting "blanket" national security letters to authorize all past searches that had not been covered by open cases, the Post reported.

Caproni said called the process a "good-hearted but not well-thought-out" method to speed up collecting data. "We should have stopped those requests from being made that way," she said, calling the abuse, "a self-inflicted wound."

FBI officials told The Post that they found that about half of the 4,400 records collected in emergency situations or with after-the-fact approvals were done in technical violation of the law.

The searches involved only records of calls and not the content of the calls.

The records seen by The Post did not reveal the identities of the people whose phone call records were gathered, but FBI officials said they thought that nearly all of the requests involved terrorism investigations.

In some cases, agents broadened their searches to gather numbers that were two and three degrees of separation from the original request, documents show.

Among those whose phone records were searched improperly were Washington Post reporter Ellen Nakshima and New
York Times reporters Raymond Bonner and Jane Perlez, according to interviews with government officials. They had been working in Jakarta, Indonesia, at the time.

In 2003, a bureauwide communique authorizing the new tactic said it was "imperative to the continuing efforts by the FBI to protect our nation against future attacks," even as it acknowledged the phone records of many people not connected to a terrorism investigation were likely to be scooped up.

Caproni said FBI Director Robert S. Mueller III did not know about the problems until late 2006 or early 2007, after the inspector general's probe began.

As early as 2005, an FBI lawyer warned superiors that the process had potential for abuse.

"We have to make sure we are not taking advantage of this system, and that we are following the letter of the law without jeopardizing national security," FBI lawyer Patrice Kopistansky wrote in one of a series e-mails to her superiors.

"I also understand that some of these are being done as emergencies when they aren't necessarily emergencies," Kopistansky wrote in another email.

Yet documents show that the scheme persisted, and in 2007 a Justice Department audit cited 22 inappropriate requests to phone companies for searches and hundreds of questionable requests.

The latest revelations show that the improper requests were far more numerous.

The Post obtained the internal memos from a government employee outside the FBI, who gained access to them during the investigations of the searches. The employee spoke on the condition of anonymity because the release was unauthorized.

Bureau officials justified the abuse by saying agents were working quickly under the stress of trying to thwart the next terrorist attack and were not violating the law deliberately.

FBI officials said they are confident that the safeguards enacted in 2007 have ended the problems. Caproni said the bureau will use the inspector general's findings to determine whether discipline is warranted.


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