Jan. 19, 2010

FBI Broke Law to Search Phone Records Washington Post: Memos Show from 2002-2006 Bureau Ignored its own Counterrorism Procedures

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(Washington Post)  This story was written 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.

Click here to read the documents (pdf)

"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.

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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

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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.

By John Solomon and Carrie Johnson

© 2010 The Washington Post Company

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by RedWings_ninety_one January 19, 2010 12:15 PM EST

FBI broke the law, what's new? Most people who belong to some sort of police organization think that they're

above the law. Doing such things as getting out of a speeding ticket by flashing their badge when they're off duty,

owning switchblade knives when they're illegal in the state, and driving down recreational hiking trails. I heard of

one person riding his motorcycle at 80 mph down the trail.

Reply to this comment

by Berkeley-SkirtLifter January 19, 2010 12:01 PM EST

by Turbidite January 19, 2010 9:26 AM EST

What is being done to prevent this from continuing? It becomes increasingly doubtful that the federal

government can control its own agencies if the principal law enforcement agency is guilty of violating the nation's

laws. What prevents the other agencies from also doing as they please in the heat of an investigation or purge?

Have we descended so far from the rule of law that anarchy may replace order? Anyone who has studied history

will realize that it really doesn't take much for this to happen.

_______________________

The only solution is twofold. Accountability and punishment. The punishment must be both swift and harsh.

When someone accepts a high level gov't appointment, the punishment for corruption or abuse of power should

be swift and harsh. The punishment for ineptitude, negligence, or incompetence should be swift and harsh.

If you don't think you should be held accountable for your short comings in a high ranking position, do NOT

accept the post.

Is anyone else tired of the following excuse from the article?...

""...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...""

His tired old excuse of 'I don't recall' is not an excuse.

It's amazing to me that decisions that affect millions of people can be blown off, or made with little care, by high

ranking officials, then when it's time to be held accountable, they simply say they 'don't recall'. I'm not going to

bother to list how many times this has happened that I am aware of...but it is a long list.

Who decided to tell the Bush admin of WMD, lied, and walked away free? Or did the GWB admin simply make it

up and do whatever the heck they wanted...with no accountability? Either way sucks.

Congress repealed the measures that regulate-control Wall Street, because corporate lobbyists conned

them...look what happened.

Mortgage companies lobbied for less restrictions on loans...look what happened.

Banks and Institutional Investment firms have broken every fiduciary restraint with zero accountability. Look what

occurred.

BOTTOM LINE:

Our high ranking gov't watch dog positions are filled with corrupt or incompetent shills. Then they do what they're

told with NO accountability, and no one is punished for corruption.

Our elected officials are engaged in a corrupt concept of representing the highest bidder (lobbyists) NOT their

constituency. OVER & OVER with zero accountability or punishment.

Millions of Americans follow suit. They are defrauding Medicare, Social Security, and every other entitlement

program with no accountability or punishment.

If you reward bad behavior, you'll get more of it.

If you punish bad behavior, you'll get less of it.

The honest middle class American, the honorable average worker, the homeowner who's underwater and trying

to make ends meet, millions of honest Americans are being punished by having to pay for fraud with their hard

earned tax dollars.

If we continue to punish the honest and hard working average Joe, you'll get less of them. Something's going to

give. Is this phenomenon a precursor to revolution? I wonder.

Sorry 'bout the long post. Consider it therapy. Have a good day.

Reply to this comment

by gig76 January 19, 2010 11:56 AM EST

Absolutely shocking that any laws would be broken under Bush.Cheney Administration. With former President

George H. Walker Bush having access to CIA, it is just so shocking to think the unthinkable. Too little too late to

make any differences, since the crime has already been committed and violated so many American citizens on

American soil, and with American telephone companies. Too many power grabbers during Bush.Cheney era.

Tragic sins happen when individuals falsely make claims in being Christian and having false Christian values.

Extremely disgusting and what else is new with Bush.Cheney lack of respect for laws? Duh? They are the law

according to them.

Reply to this comment

by January 19, 2010 11:06 AM EST

It's call BIG BROTHER! George Orwell had it right. Just the year was wrong. We have been letting the bastards

take away our freedoms. It's time to take them ALL back. Get rid of your legislators and get new ones voted in

who will correct this mess and start giving us the freedoms back. We are resilient people and can take care of

ourselves. Obama, let us alone!!!

Reply to this comment

by bruce789 January 19, 2010 10:45 AM EST

Watergate was about wiretapping. Nixon ordered the wiretapping of the Democratic National Committee office in

the Watergate Plaza, phone bugs planted by burglars. While that would seam a purely political purpose, and

illegal, a number of people thought then that the communists (terrorists of that day) were behind the anti-war

effort. Who is acting on who's belief can be a big question and shows need for court oversight. Another problem:

no one writes anything down anymore, like why they are doing what they are doing.

Reply to this comment

by Overruled1 January 19, 2010 10:16 AM EST

I've been saying our civil rights and liberties have been violated for years, yet who has been officially brought to

trial? Nobody, just like the incident with the yakuza leaders cutting the line at UCLA for new transplant

organs....corruption at all levels shows where our country is heading...FBI provided the passports, UCLA

accepted millions of dollars to violate its own rules and conspiracy.

Reply to this comment

by bruce691 January 19, 2010 9:56 AM EST

I did not vote for Bush/Cheney. They are Corporatists. Everything for the corporation. They are not idiologues.

Look at their initiatives. Follow the money and you will find the truth.

Reply to this comment

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See all 26 Comments

by Overruled1 January 19, 2010 10:13 AM EST

It's called fascism, corporate fascism, that's why wall street is past the economic crisis today, and

main street is paying for Haiti.

by cidaia January 19, 2010 11:43 AM EST

okay, and why do you think Obama is any different or any better?

by meboard January 19, 2010 9:41 AM EST

"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."

SHOCK...after being on earth for 45 years and 20 years in the AF, I know NOT to trust my government at ANY

time.

Reply to this comment

by Ms_enza January 19, 2010 9:37 AM EST

You are not free. Not anymore.

Department of Homeland Security is involving itself in K-12 education, "Tell us what Mommy and Daddy say at

dinner."

http://www.servicelearning.org/instant_info/fact_sheets/k-12_facts/homeland_security/

The DoD, too, is attempting to insert itself in our children's education.

http://www.google.com/search?sourceid=navclient&ie=UTF-8&rlz=1T4DMUS_enUS220US221&q=DoD+K-12

Paranoid Militarism... That's it folks, game over.

Reply to this comment

by Turbidite January 19, 2010 9:26 AM EST

What is being done to prevent this from continuing? It becomes increasingly doubtful that the federal

government can control its own agencies if the principal law enforcement agency is guilty of violating the nation's

laws. What prevents the other agencies from also doing as they please in the heat of an investigation or purge?

Have we descended so far from the rule of law that anarchy may replace order? Anyone who has studied history

will realize that it really doesn't take much for this to happen.

Reply to this comment

by bruce691 January 19, 2010 9:30 AM EST

The answer is you can prevent it. First get a non-biased view of the constitution and bill of rights and

hold your representatives accountable. If someone says they belive in a unitary view of the separation

of powers (executive branch trumps everything) that person needs to be impeached or removed from

office via election.

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