FBI Broke Law for Years in Phone Record Searches

Published on
by
The Washington Post

FBI Broke Law for Years in Phone Record Searches

by
John Solomon and Carrie Johnson

The FBI illegally collected more than 2,000 U.S. telephone call records
between 2002 and 2006 by invoking terrorism emergencies that did not
exist or simply persuading phone companies to provide records,
according to internal bureau memos and interviews. FBI officials issued
approvals after the fact to justify their actions.

E-mails obtained by The Washington Post detail how counterterrorism
officials inside FBI headquarters did not follow their own procedures
that were put in place to protect civil liberties. The stream of urgent
requests for phone records also overwhelmed the FBI communications
analysis unit with work that ultimately was not connected to imminent
threats.

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 records seen by The Post do 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.

FBI general counsel Valerie Caproni said in an interview Monday that
the FBI technically violated the Electronic Communications Privacy Act
when agents invoked nonexistent emergencies to collect records.

"We should have stopped those requests from being made that way,"
she said. The after-the-fact approvals were a "good-hearted but not
well-thought-out" solution to put phone carriers at ease, she said. In
true emergencies, Caproni said, agents always had the legal right to
get phone records, and lawyers have now concluded there was no need for
the after-the-fact approval process. "What this turned out to be was a
self-inflicted wound," she said.

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.

Documents show that senior FBI managers up to the assistant director
level approved the procedures for emergency requests of phone records
and that headquarters officials often made the requests, which
persisted for two years after bureau lawyers raised concerns and an FBI
official began pressing for changes.

"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 of early 2005 e-mails asking superiors to address the problem.

The FBI acknowledged in 2007 that one unit in the agency had improperly
gathered some phone records, and a Justice Department audit at the time
cited 22 inappropriate requests to phone companies for searches and
hundreds of questionable requests. But the latest revelations show that
the improper requests were much more numerous under the procedures
approved by the top level of the FBI.

FBI officials told The Post that their own review has found that
about half of the 4,400 toll 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. In some cases, agents broadened their searches to
gather numbers two and three degrees of separation from the original
request, documents show.

Bureau officials said 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.

The internal memos were obtained 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.

After the Sept. 11, 2001, attacks, the need to get information
quickly and connect the dots was considered paramount throughout the
federal government. The failure to obtain timely and actionable
information has been a recurrent theme in the U.S. counterterrorism
effort, up to and including the recent shootings at Fort Hood, Tex.

Before 9/11, FBI agents ordinarily gathered records of phone calls
through the use of grand jury subpoenas or through an instrument know
as a national security letter, issued for terrorism and espionage
cases. Such letters, signed by senior headquarters officials, carry the
weight of subpoenas with the firms that receive them.

The USA Patriot Act expanded the use of national security letters by
letting lower-level officials outside Washington approve them and
allowing them in wider circumstances. But the letters still required
the FBI to link a request to an open terrorism case before records
could be sought.

Shortly after the Patriot Act was passed in October 2001, FBI senior
managers devised their own system for gathering records in terrorism
emergencies.

A new device called an "exigent circumstances letter" was
authorized. It allowed a supervisor to declare an emergency and get the
records, then issue a national security letter after the fact.

The procedure was based on a system used in the FBI's New York
office in the days immediately after the Sept. 11 suicide hijackings,
officials said.

On Jan. 6, 2003, then-FBI Assistant Director for Counterterrorism Larry Mefford issued a bureau-wide communique authorizing the new tactic,
saying the bureau's telephone analysis unit was permitted in "exigent
circumstances . . . to obtain specialized toll records information for
international and domestic numbers which are linked to subjects of
pending terrorism investigations."

The e-mail called this new method of gathering phone records
"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.

The 2003 memo stated that the new method "has the potential of
generating an enormous amount of data in short order, much of which may
not actually be related to the terrorism activity under investigation."

Within a few years, hundreds of emergency requests were completed
and a few thousand phone records gathered. But many lacked the
follow-up: the required national security letters.

Two individuals began raising concerns.

Special Agent Bassem Youssef, the new supervisor of the
communications analysis unit that gathered the records, began to
receive complaints from phone companies that they had not received
documentation to show the searches were legal.

Youssef, a longtime counterterrorism investigator, had earlier
fallen out of favor with FBI management as he pursued a whistleblower
claim that he had been wrongly retaliated against and denied promotion
because of his ethnicity.

He raised questions in spring 2005 with his superiors and the FBI
general counsel's office about the failure to get national security
letters. E-mails show he pressed FBI managers, trying to "force their hand" to implement a solution.

Youssef's attorney, Stephen Kohn, said Monday that he could not discuss
the specifics of the investigation except to confirm that his client
cooperated with the inspector general. FBI officials said they could
not discuss the conduct of individual employees.

Separately, Kopistansky in the FBI general counsel's office learned in mid-December 2004 that toll records were being requested without national security letters.
She handled a request that originated from then-Executive Assistant
Director Gary Bald, who had "passed information regarding numbers
related to a terrorist organization with ties to the US" and obtained
toll records, the memos show.

The communications analysis unit asked Kopistansky to "draw up an
NSL" to cover the search, but she was unable to get superiors to tell
her which open terrorism case it involved. The request "has to specify
why the numbers are relevant to an authorized investigation," she said.

An employee in the communications analysis unit wrote back that most
of the emergency requests he received "come from upper mgmt. I don't
always receive documentation or know all the facts related to the
number, which is a problem for me when I try to get the NSL."

Kopistansky persisted, demanding an open terrorism case file for the
legal rationale. "I am sure you know it is true and Gary Bald knows
it's true, but it needs to be reflected on a piece of paper," she
wrote.

Two months later, Kopistansky was still unable to issue a national security letter to comply with the FBI rules.

She took note of the overall problem. The issuance of a national security letter after exigent searches "rarely happens,"
Kopistansky warned in a March 11, 2005, e-mail seeking the help of the
FBI's top national security lawyer and the deputy counsel.

By March 2005, Kopistansky and Youssef were discussing a worsening
"backlog" of other cases where no national security letters had been
issued and growing concerned that exigent letters were being abused, e-mails show.

"I also understand that some of these are being done as emergencies when they aren't necessarily emergencies," Kopistansky wrote in an April 26, 2005, e-mail to Youssef.

Kopistansky and the other FBI lawyers discussed a strategy to handle
the past emergency searches and to allow the practice to continue.

The e-mails show that they conceived the idea to open half a dozen "generic" or "broad" preliminary investigative (PI) case files to which all unauthorized emergency requests could be charged so a national security letter could be issued after the fact.

The generic files were to cover such broad topics as "threats
against transportation facilities," "threats against individuals" and
"threats against special events," the e-mails show.

Eventually, FBI officials shifted to a second strategy of crafting a
"blanket" national security letter to authorize all past searches that
had not been covered by open cases.

A November 2006 e-mail chain
indicates that then-FBI Assistant Director for Counterterrorism Joseph
Billy signed the blanket national security letter. But when FBI lawyers
raised concerns about it, he wrote back that he did not remember
signing.

"I have no recollection of signing anything blanket. NSLs are
individual as far as I always knew," Billy wrote Caproni on Nov. 7,
2006.

Billy did not immediately respond to a message left at his office on
Monday. Kopistansky and Bald, reached by phone Friday, said they could
not comment without FBI approval. Mefford did not return calls.

In all, FBI managers signed 11 "blanket" national security letters addressing past searches, officials told The Post.

Although concerns about their legality first arose in December 2004,
exigent searches continued for two more years. Youssef's unit began
limiting the number of exigent letters it signed between summer 2005
and spring 2006, seeking more assurances the requests could be covered
by a national security letter, the memos show.

Phone record searches covered by exigent letters ended in November 2006
as the Justice Department inspector general began investigating.

Among those whose phone records were searched improperly were
journalists for The Washington Post and the New York Times, according
to interviews with government officials.

The searches became public when Mueller, the FBI director, contacted
top editors at the two newspapers in August 2008 and apologized for the
breach of reporters' phone records. The reporters were Ellen Nakashima
of The Post, who had been based in Jakarta, Indonesia, and Raymond
Bonner and Jane Perlez of the Times, who had also been working in
Jakarta.

Solomon, a former Post reporter and Washington Times editor, is a freelance journalist. Johnson is a Post staff writer.

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