On Aug. 8, 2008, Federal Bureau of Investigation (FBI) Director Robert S. Mueller apologized to the executive editors of The Washington Post and The New York Times for obtaining the telephone records of some of the newspapers’ reporters in 2004 without following special procedures required by the Department of Justice.
The FBI requested the reporters’ toll phone records from telephone companies through “exigent circumstance” letters, which did not state the reasons for the FBI’s request or the nature of any investigation, according to an August 9 Washington Post story. Telephone toll records indicate the phone calls made from a particular telephone number, but they do not provide information about the content of telephone conversations, The New York Times reported August 8.
The FBI obtained phone records for Washington Post staff writer Ellen Nakashima and researcher Natasha Tampubolon and New York Times reporters Raymond Bonner and Jane Perlez. All four were based in the Jakarta, Indonesia bureaus of their newspapers in 2004. The Washington Post reported in its August 9 story that its reporters were writing about Islamic terrorism in Southeast Asia at the time.
The New York Times reported that the FBI did not adhere to the Attorney General’s guidelines in issuing its request to telephone companies for the reporters’ records. Those guidelines, codified at 28 C.F.R. section 50.10, require Attorney General approval for all subpoenas for telephone toll records directed to members of the news media, and must be followed by all members of the Justice Department. When deciding whether to issue subpoenas for journalists’ telephone toll records, the guidelines require the Attorney General to balance “the public’s interest in the free dissemination of ideas and information and the public’s interest in effective law enforcement and the fair administration of justice.” The regulations require the department to make attempts to obtain information from alternative sources, and the department must conduct negotiations with the news organization whose telephone records are to be subpoenaed. If no notice is provided before the subpoena is issued, notification must be provided as soon as it is determined that the notice will not be a clear and substantial threat to an investigation.
Mueller’s phone calls to Bill Keller, executive editor of The New York Times, and to Leonard Downie, Jr., executive editor of The Washington Post, were accompanied by a faxed letter from Valerie Caproni, general counsel for the FBI, the New York Times reported August 8. “The F.B.I. is committed to protecting the news media consistent with the First Amendment and Department of Justice policies, and we very much regret that this situation occurred,” the letter said.
Keller said, “we’d still like to know more about how this happened and how the bureau is securing against similar violations in the future,” according to the August 9 Washington Post story.
Caproni said obtaining the reporters’ phone records was a mistake caused by a miscommunication and not by “malevolence,” The Washington Times reported August 26. She said that an FBI case agent had e-mailed an individual within the Communications Analysis Unit (CAU) of the FBI, which sent an exigent circumstances letter to phone companies, despite the fact that the case agent did not say there was an emergency requiring the letter, according to The Washington Times.
FBI spokesman Michael P. Kortan said that the phone records obtained from the four journalists were not used for investigative purposes, and they have been removed from the FBI’s databases, The Washington Post reported August 9.
The Washington Post reported March 18, 2007 that exigent circumstance letters were created by the FBI’s New York office following the terrorist attacks of Sept. 11, 2001. The letters were written by the CAU, an approximately 12-member division that analyzes communications for counterterrorism information. The CAU sent 739 exigent circumstance letters between 2003 and 2005 to obtain records in connection with 3,000 phone numbers. The letters were sent to telephone companies AT&T, Verizon, and MCI.
The letters stated that “Due to exigent circumstances, it is requested that records for the attached list of telephone numbers be provided.” Several exigent circumstance letters were released by the FBI pursuant to a Freedom of Information Act request made by civil liberties group the Electronic Frontier Foundation (EFF) on June 15, 2007, and are available on the EFF’s Web site at http://www.eff.org/files/filenode/07656JDB/070507_nsl03.pdf.
Justice Department Inspector General Glenn A. Fine exposed FBI misuse of exigent circumstance letters in a March 2007 report. Fine concluded that there were sometimes no pending national security investigations linked to the records requests made by FBI agents, and although the exigent circumstance letters stated that subpoenas had been submitted to the U.S. Attorney’s office, often no subpoenas were requested before the letters were sent and agents did not file the requisite legal follow-up documents for each letter.
The FBI discontinued use of exigent circumstance letters after advocacy groups and internal watchdogs cited “hundreds of cases” in which agents did not file paperwork following issuance of the letters to explain the legal grounds for the request, The Washington Post reported August 9.
The FBI has developed a new process for agents seeking telephone toll records, according to The Washington Times. The agency now requires agents to write a memo detailing the grounds for the request, which must be approved by a supervisor. The memos provide more details regarding the request for phone companies, Caproni told the Washington Times, and allow the companies to determine whether the emergency warrants immediate turnover of the records before receipt of a subpoena. The new procedure for obtaining telephone toll records is not subject to judicial review.
Following press accounts of Mueller’s apology to The Washington Post and The New York Times, Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) and Ranking Member Arlen Specter (R-Pa.) called for a probe into the FBI’s policies with respect to exigent circumstance letters.
In an August 11 letter to Mueller, the Senators stated that the FBI should explain why it obtained the reporters’ phone records. “[W]e expect to receive a more complete accounting of this violation of the Justice Department’s guidelines intended to protect privacy and journalists’ First Amendment rights,” the letter said.
Leahy and Specter also said that the revelations about the FBI’s misuse of the letters suggest a need for passage of the federal journalists’ shield law bill, S. 2035, the “Free Flow of Information Act of 2008.” (See “Silha Bulletin Guide to Journalist’s Privilege” in the Spring 2008 issue of the Silha Bulletin.) The senators said the bill includes a provision that would limit the ability of the government to get reporters’ telephone records.
The FBI continues to use national security letters (NSLs), which allow the FBI to demand financial records and documents without prior judicial review, as an investigative tool. Caproni told the Washington Times that in 2007, the FBI increased training about NSLs for its employees, and it has created procedures that ensure a supervisor and an FBI lawyer reviews each letter that is sent.
– Amba Datta
Silha Research Assistant