The FBI's Non-Emergency Exigent Letters

The WaPo has a story out describing how the FBI, from 2002 until 2006, used exigent letters to collect phone records without the proper underlying terrorist justification.

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.

[snip]

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.

MadDog has helpfully linked to a collection of all the emails included individually in the WaPo story.

There are a couple of details I find particularly interesting in this story. First,the exchange showing top FBI officials trying to collect phone records “related to a terrorist organization with ties to the US,” based on an underlying cable that FBI refused to share internally.

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.

Call me crazy, but since we know the FBI and NSA were illegally wiretapping organizations like al-Haramain in 2004, you have to wonder whether this was an attempt to clean up poison fruit from earlier, even more illegal surveillance.

Then there’s the detail that the FBI “shut down” this program when the IG started investigating.

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

I can’t help but recall that Section 215 of the PATRIOT Act–which would allow for the collection of phone records–started to be used for a classified collection program in 2006.

Finally, there’s the way this story feels like a limited hang-out. The story notes that this will all be revealed in an IG report coming out later this month.

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.

So this just tells us what Glenn Fine will presumably tell us in a matter of weeks?

And John Solomon, fresh off his stint with the Moonie Times, helpfully offers this (false) excuse.

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.

(After all, the problem with Nidal Hasan was not that the FBI and others hadn’t collected information, it’s that they didn’t share it properly.)

And then there’s the PATRIOT Act renewal that is still pending (and FBI Director Mueller will testify before Senate Judiciary Committee tomorrow on information sharing).

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.

  1. FromCt says:

    “FBI broke law for years in phone record searches

    By John Solomon and Carrie Johnson
    Special to The Washington Post and Washington Post Staff Writer
    Tuesday, January 19, 2010; A01″……………………………….

    WaPo fired Dan Froomkin and rehired extreme right wing propagandist John Solomon as a “reporter”? Why even bother to read or react to “news” published by such an “on the fringe” organization that the WaPo has sadly become?

    • ghostof911 says:

      The collecting of information on journalists at WaPo, NYT, and other MSM entities was very effecitve in sterilizing those organizations.

        • emptywheel says:

          The article reveals that several NYT and WaPo reporters in Indonesia had their calls collected. So not wholesale collection, not collection targeted politically (at least from the appearance), but collection nevertheless.

          • BoxTurtle says:

            I think we can safely assume that not everyone tapped is listed in those emails. During BushCo, I’d be willing to bet that everything going into or out of NYT servers was hoovered.

            Boxturtle (And I’m not the least sure that ObamaCo isn’t doing the same)

  2. samlowry says:

    So does the retroactive immunity Obama gave with his FISA flip-flop cover this too?

    Or will he have to issue new retroactive immunity?

  3. TarheelDem says:

    And there is the matter that authorization of the actions stopped at the level of Assistant Director, providing Mueller with plausible deniability.

    It’s time to de-Hooverize the FBI. Long past time.

    • emptywheel says:

      Yeah.

      Well, if you believe this is a limited hangout, as I do, one goal of such a project might be to give Mueller plausible deniability he might not otherwise have.

      Mueller was intimately involved in other senior level decisions to spy. He knew of the illegal program. So do we really believe that part?

  4. Jim White says:

    done in technical violation of the law

    WaPoo tells us all we need to know with that little phrase. It may have been a “technical” violation, but it was done with the best of intentions and now is not the time to look backwards. Move along, nothing to see here.

    Keep digging, EW. If they are trying to lessen the impact before the IG report, we might just have some nuggets there when it comes out.

  5. Peterr says:

    Finally, there’s the way this story feels like a limited hang-out. The story notes that this will all be revealed in an IG report coming out later this month.

    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.

    Given the timeliness with which the DOJ releases IG-type reports, I’d say the DOJ needs a good librarian, to go after all of these overdue books.

    Maybe Treasury could get involved. Surely there’s a fine for not missing the due date.

  6. Jim White says:

    Mueller was intimately involved in other senior level decisions to spy.

    Yeah, I was just getting ready to comment on how the article doesn’t put this situation in context with the overall abuse of NSL’s by the FBI and the widespread hoovering of info by NSA. This does look like an attempt to make bits of the overall horrendous plan look like isolated small mistakes.

  7. temptingfate says:

    Call me crazy but when a guy credited as being “a former Post reporter and Washington Times editor, is a freelance journalist.” steps up to identify potential problems in the FBI a good first question is: what is he trying to say?

    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

    The story is mostly about making sure that the FBI, and by association the NSA, are only accused of being wrong because that they “invoked nonexistent emergencies to collect records” and justifying the collection or potential misuse as being well-intended. Solomon is just setting out the air bags for the stunt men to jump onto. There is nothing in the story that suggest anything outside of implying that Special Agent Bassem Youssef was unable to be a team player.

    There is almost certainly something here but this bit of theater from Solomon reads more like public relations than investigation.

    • temptingfate says:

      “And look, he seems to be spending money in a way the requires we release the details of an investigation early, to stop him from looking into Wall Street corruption.” The list that Spitzer was on, why it was created, who authorized it and how it was used would be very interesting to read about. It’s a shame that will never happen.

  8. BoxTurtle says:

    If I weren’t so lazy, I’d go back through the FDL archives and find out who it was that predicted this would happen.

    We might have been a little slow, it may have been as long as 5 minutes after the NSL were first reported before someone predicted this would happen.

    Boxturtle (completely unsurprised by this bit of news)

  9. afterthought says:

    There’s no such thing as conspiracy.

    The FBI program was the emergent result of random muscle twitches.

  10. milly says:

    Remember when Coleen Rowley was very upset about Arabs taking flying lessons…her supervisors told her they couldn’t do anything or their careers would have been ended? Shouldn’t that have been the other way around?

    Then she hand delivered her evidence to all the Senators? She must have thought she could do something. Silly ….

  11. dick c says:

    When, it seems, everything our government does it done to benefit business, I have a hard time not leaping to the idea that some of this is corporate espionage. It would be nice to believe that nobody at the FBI, NSA, or wherever, ever tries making a buck on the side.

  12. Kassandra says:

    And then there’s the PATRIOT Act renewal that is still pending (and FBI Director Mueller will testify before Senate Judiciary Committee tomorrow on information sharing).

    And you KNOW they’re gonna renew it, especially after that convenient Christmas “attack on the homeland”.
    Amazing that the police state is just so, “in your face” right now.
    Everybody’s asleep or wearing Depends®.

  13. timr says:

    Da (F)umbling (B)unch of (I)diots continues to ignore laws. To my knowledge they have been doing this since J. Edgar was the leader. A little blackmail here, ignoring a few laws there, a few B&Es, lots of wiretapping and a whole bunch of black bag jobs.
    I have often wondered what the F B I function was. Could not have had much to do with law enforcement-arrogant sobs always tried to lord it over local LEOs-because they have broken lots more laws than they enforced. Spy catching? Damn poor job over the last 30 years, no?-way to many of their spy catchers worked for the other side and did not get caught for years(tradecraft? We don need no stinkin tradecraft) Catching terrorists? Again, piss poor performance starting with FBI HQ slapping down local agents who turned out to know more than HQ did-again, no surprise- They collect crime stats. OTOH, their crime lab turned out to be just as bad as the Houston crime lab. IOW, they lied to get convictions. Catch bank robbers? Well, most are caught by local LEOs not by fbiers.

    The original intent was, I believe, that the FBI be a domestic LE organization while the CIA handle outside CONUS. The CIA broke that agreement all to hell many years ago when they claimed that the F B I was not following up on what the CIA passed to them, so, in order to follow and catch the infiltrators, they started operating within CONUS, despite their charter.
    Meanwhile, the F B I went global, placing agents in many foreign countries. Why, I am unsure unless it was simply a case of the turf war with the CIA getting out of hand.

    Meanwhile with both the CIA-which was supposed to coordinate all foreign intel, but did not really, and the F B I which was supposed to be many things and only operate domestically, became strictly stovepipe agencies with little or no communication, co ordination and co operation with each other.

    The F B I has been disrespectful of the law for decades, why should anyone be surprised at this latest example. But who exposed this and why. And is this simply another example of the F B I operating outside the law and any politician being unable to gain control of this agency?

  14. joerobertson says:

    All in the name of terror. We got this act as I remember, without any real debate or discussion. Who even read it? And then it’s abused? What a surprise.

    As stated in article

    FBI officials said they are confident that the safeguards enacted in 2007 have ended the problems.

    Really, which problems are those? The violations of our civil rights or the problem of how those rights are to be violated?

    Now this abomination is set to renew with no press or discussion? And If you do question it… watch out. Might be political suicide. It’s almost like the message is controlled and filtered through MSM.

    When do we say enough is enough? When do we realize the media ( including Fox News) is no advocate of Liberty? When do we stop and reverse a course that (as history has proven) has a bitter ending?

  15. WilliamOckham says:

    I’m late to the party here, but how does this connect to the previous admissions by the FBI that some of their wiretapping was “technically” illegal?

  16. topcat says:

    Yawn. Anybody who isn’t already aware that the FBI is a lawless organization probably won’t believe this, either. The FBI has been routinely wiretapping people illegally and collecting private information for decades. Every few years or so they get caught at it again and a few editorials are written and some Sternly Worded Letters sent out, but nothing ever changes. Why? Because nobody ever loses their job or goes to jail over these “incidents”.

    And so it will be once again. Next week the FBI will be back to it’s old tricks in an attempt to enforce selected laws by breaking all the others. Is it any wonder that a substantial segment of the American public has no respect for law enforcement, and especially the FBI?

  17. JohnJ says:

    Feeble Brain Institute
    Fine Bunch of Italians
    Fat Baldheaded Idiots

    ‘can’t remember the rest of their internal names.
    (parents both ex FBI)

  18. lexalexander says:

    And I’m sure that prosecutions of the responsible parties will commence as soon as all the characters in “Avatar” turn blue.

    Oh. Wait.