FBI blames phone flap on mis­com­mu­ni­ca­tion

The Washington Times Weekly - - National - BY BEN CONERY

The FBI’s top lawyer said mis­com­mu­ni­ca­tion — not malev­o­lence — led the bureau in 2004 to im­prop­erly ob­tain the tele­phone records of news­pa­per re­porters writ­ing about Is­lamic ter­ror­ism in In­done­sia.

Va­lerie E. Caproni, the FBI’s gen­eral coun­sel, told The Wash­ing­ton Times in an in­ter­view that her ex­pla­na­tion was based on a pre­lim­i­nary re­view of e-mails sent among agents at the time.

It was the first time an FBI of­fi­cial de­scribed any cir­cum­stances sur­round­ing the sit­u­a­tion, though the ex­pla­na­tion seems un­likely to sway crit­ics.

A more de­fin­i­tive ac­count of the sit­u­a­tion is ex­pected to be in­cluded in a forth­com­ing re­port from the Jus­tice Depart­ment’s In­spec­tor Gen­eral (IG) into the use of so-called “ex­i­gent let­ters.”

The FBI used such let­ters to re­quest tele­phone toll-billing records and sub­scriber in­for­ma­tion, but not the con­tent of the calls. The let­ters sent to the phone com­pa­nies sim­ply stated the in- for­ma­tion was be­ing re­quested be­cause of an emer­gency.

“Ex­i­gent let­ters” are sim­i­lar to the con­tro­ver­sial Na­tional Se­cu­rity Let­ters (NSLs), which al­low agents to gather cer­tain in­for­ma­tion without nor­mal ju­di­cial over­sight.

In the case re­gard­ing the New York Times and The Wash­ing­ton Post, the FBI vi­o­lated a long­stand­ing Jus­tice Depart­ment pol­icy that re­quires high-level ap­proval be­fore seek­ing that type of in­for­ma­tion from jour­nal­ists.

FBI Di­rec­tor Robert S. Mueller III apol­o­gized to The Times and The Post ear­lier in Au­gust, and the case likely will be brought up Sept. 17, when he tes­ti­fies be­fore the Se­nate Ju­di­ciary Com­mit­tee.

Ms. Caproni said the case agent e-mailed an agent in the ter­ror­ism-in­ves­ti­gat­ing Com­mu­ni­ca­tions Anal­y­sis Unit (CAU) to sug­gest seek­ing Jus­tice Depart­ment per­mis­sion and a grand jury sub­poena to ob­tain the re­porters’ phone records.

Ms. Caproni said the case agent did not say it was an emer­gency, but the agent in CAU sent an “ex­i­gent let­ter” any­way.

While it is not known why the agent in CAU sent the let­ter, Ms. Caproni sug­gested the agent in CAU may have been try­ing to be help­ful. She also noted CAU is on the front lines of the fight against ter­ror­ism and that the unit was busy at the time.

Mike Ger­man, pol­icy coun­sel for the Amer­i­can Civil Lib­er­ties Union’s Wash­ing­ton leg­isla­tive of­fice, said he didn’t buy Ms. Caproni’s ar­gu­ment. “It’s clear the FBI wants to min­i­mize this as a mis­take and not abuse,” he said. “The facts are, there was a ridicu­lous amount of mis­use and abuse.”

Ms. Caproni said she does not want to min­i­mize the bureau’s mis­takes, but stressed changes made in re­cent years should pre­vent a sim­i­lar sit­u­a­tion in the fu­ture.

She said the bureau has banned the use of “ex­i­gent let­ters” and has a new process in place to ob­tain such in­for­ma­tion in an emer­gency.

An agent seek­ing emer­gency toll-billing in­for­ma­tion from a phone com­pany now must write a memo ex­plain­ing the emer­gency that makes such a re­quest nec­es­sary. Ms. Caproni said a su­per­vi­sor must ap­prove the re­quest.

In the past, phone com­pa­nies could refuse the re­quests made in an “ex­i­gent let­ter.” But they were in a dif­fi­cult po­si­tion to do so be­cause they didn’t know the cir­cum­stances of the ap­par­ent emer­gency.

Now, Ms. Caproni said, the let­ters sent to phone com­pa­nies must pro­vide more facts to help the com­pany de­ter­mine whether the emer­gency is se­ri­ous enough to turn over the records without first re­ceiv­ing a sub­poena.

“This, at least, cre­ates a fac­tual record,” Ms. Caproni said. “As­sum­ing it passes the ‘straight-face test,’ we don’t an­tic­i­pate any prob­lems with the phone com­pa­nies.”

Ac­cord­ing to a re­port from the Jus­tice Depart­ment’s in­spec­tor gen­eral, more than 700 “ex­i­gent let­ters” were sent from 2003 to 2006.

“The num­bers of true emer­gen­cies is far smaller than that,” Ms. Caproni said. “It’s a small num­ber of true emer­gen­cies, though there are some. There are times when we have true emer- gen­cies, and we need things quickly.”

She said she is not sure how many let­ters have been sent un­der the new stan­dards.

The up­com­ing IG re­port will be its third about the bureau’s ex­panded in­ves­tiga­tive power un­der the Patriot Act, which orig­i­nally was passed in re­sponse to the 2001 ter­ror­ist at­tacks.

The first two re­ports fo­cused mostly on NSLs, which al­low the bureau to act uni­lat­er­ally in de­mand­ing fi­nan­cial, phone and other records. Un­like typ­i­cal sub­poe­nas or search war­rants, NSLs do not need ju­di­cial ap­proval.

The re­ports found wide­spread abuses.

“Na­tional Se­cu­rity Let­ters can be a valu­able tool for the FBI to use in de­tect­ing and pre­vent­ing acts of ter­ror­ism. But abuses should not be tol­er­ated; there’s too much at stake for the FBI to get it wrong,” Sen. Charles E. Grass­ley, Iowa Repub­li­can and mem­ber of the Ju­di­ciary Com­mit­tee, said Aug. 25. “The FBI needs bet­ter trans­parency and ac­count­abil­ity, and those who broke the rules should be held ac­count­able.”

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