FBI Illegally Collected Thousands of Phone Records Through Fake Terror Emergencies

The Washington Post has obtained FBI internal memos and e-mails showing that the FBI illegally collected thousands of phone records from 2002 to 2006 by lying to phone companies and inventing fake terror emergencies. From the memos, and through interviews, it has learned:

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.

FBI General Counsel Valerie Peroni tells the Post the FBI violated the Electronic Communications Privacy Actby invoking non-existent emergencies to obtain the records. [More...]

"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.

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.

Here's one of the emails raising concerns.

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.

The FBI says safeguards instituted in 2007 ended the practice.

The culprit before then: The Patriot Act.

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.

After the Patriot Act, the FBI created an "exceptional circumstances" letter.

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.

They were authorized at a high level:

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."

But, the Bureau didn't follow up with the required national security letter and phone companies began complaining. Enter the whistleblower, Special Agent Bassem Youssef. He began cooperating with the Inspector General.

Here's a telling e-mail, and another on the fake emergencies.

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 practice ended in 2006 when the 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 Post has put the documents it obtained online here.

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    WTF? (5.00 / 1) (#1)
    by kdog on Tue Jan 19, 2010 at 07:40:35 AM EST
    from the Post link...

    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.

    I don't know what is worse...the FBI thinking they were shredding the Bill of Rights and trying to cover it up with the after the fact approvals...or the lawyers concluding all was kosher from jumpstreet, meaning the BOR is more in tatters than we even realize.

    Question...any idea what kind of sanctions or punishment the FBI will get after the Justice Dept. does their thing?  Sounds to me like the FBI has admitted guilt...whats the mandatory minimum here?

    No Problem! (5.00 / 1) (#2)
    by mmc9431 on Tue Jan 19, 2010 at 07:55:33 AM EST
    And yet Congress still buries it's head in the sand. Yesterday is was the arranged suicides, today it's the phone records. What's tomorrow? The Bush administration shouldn't be allowed to walk away from their record. Maybe if everything was brought to light, they would be so discredited that we wouldn't have to hear from Cheney every other week.

    A question I've never found an answer to is:

    How much is the government paying the telecoms for their cooperation?

    You speak oddly, stranger (none / 0) (#3)
    by mcl on Tue Jan 19, 2010 at 07:28:02 PM EST
    What is this word "illegal" of which you speak? Surely it implies the rule of law...and America left that behind a looooooooooooooong time ago.

    We now find ourselves ruled by lawless men in a nation where anything done by people in power becomes de facto legitimate. Prepare for the hecatomb.

    harm (none / 0) (#4)
    by diogenes on Tue Jan 19, 2010 at 10:52:39 PM EST
    Is there a single actual person who has suffered one iota of harm from these data gathering expeditions?