FBI Sidesteps Law to Obtain Phone Records of Americans, Journalists

This post was written by GAP Homeland Security Director Jesselyn Radack for her Daily Kos Blog.

According to e-mails obtained by the Washington Post, the FBI operated outside the law for years conducting phone records searches.  Big surprise: the issue was first raised by a whistleblower, Bassam Youssef, back in 2004.  We don't know everyone whose phone records were breached, but we know journalists from the Washington Post and New York Times are among them.

I have a particularly personal interest in this issue. Back in 2002, the government mysteriously obtained my phone records with Newsweek journalist Michael Isikoff.  This worried journalists so much that Douglas McCollam wrote an article for the Columbia Journalism Review warning journalists of my "creepy" situation, appropriately titled, "Who's Tracking Your Calls? And How Far Will the Department of Justice Go to Burn a Leaker?"

The newly revealed emails confirm that FBI officials ignored the 4th Amendment and their own internal procedures intended to protect civil liberties in obtaining phone records.

How the FBI got to this point is a cautionary tale in how extending surveillance powers with no meaningful checks and balances invites waste and abuse.

For years prior to 9/11 the FBI has had the power to obtain phone records using grand jury subpoenas or National Security Letters (NSLs), which carried the weight of a subpoena.  Post 9/11, the (un)PATRIOT Act vastly expanded the NSL power, making NSLs far easier to obtain, and the number of NSLs skyrocketed accordingly from 8,500 NSLs issued in 2000, to 39,346 in 2003, to 47,221 in 2005. (See Department of Justice Office of the Inspector General Report, March 2007). 

Even with this increased, unchecked power, the FBI developed a scheme to circumvent the process by broadening it so much as to make it meaningless.  First flagged by the a DOJ IG Report in 2007, the FBI began using so-called "exigent letters," in which an FBI official would declare an emergency, get a hold of the phone records, and, supposedly, issue an NSL after the fact.  Unsurprisingly, thanks to the e-mails obtained by the Washington Post, we now learn straight from the FBI itself that the "emergencies" were not actually emergencies and that after-the-fact NSLs were sometimes never issued.  A 2003 internal FBI memo warned that the use of "exigent letters:"

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.

Worse, the abuse struck right where we need freedom the most: reporters Ellen Nakashima of the Washington Post and Raymond Bonner and Jane Perlez of the New York Times were among those whose phone records the FBI breached.

What has the FBI done to rectify these problems?  Well, Nakashima, Bonner, and Perlez got an apology from FBI Director Mueller.  The FBI claims to have stopped using "exigent letters" in November 2006, when the DOJ IG began nosing around. And, the FBI devised a bunch of internal procedures to stop the abuse of the NSL power.  The FBI said any violations of the law were not deliberate, but how can something that happened 2,000 times not be deliberate? 

While these are all fine – perhaps even commendable – reforms, the fox is still guarding the hen-house.  There has been no legal change in the FBI's overbroad NSL power, and too many questions remained unanswered: Whose phone records were illegally obtained? What happened to that information?  What is an American’s recourse if her phone records have been breached? 

At this point, not reigning in the NSL power is inexcusable.  The FBI's use of "exigent letters" to avoid even the post 9/11 flimsy procedures for obtaining an NSL demonstrate what we all should have learned in our middle school history classes: that a lack of meaningful, outside-the-agency, checks on increased police powers invites waste and abuse. 

To this day, I do not know how the government obtained my phone records, but seeing as how the FBI treats its unprecedented NSL powers so flippantly and the IG's 2007 findings about widespread abuse appear to have been just the tip of the iceberg, we will probably never know what "authority" the government used to get my records.

That's why I now work at the Government Accountability Project--representing whistleblowers.  This issue dovetails four areas of my concern--whistleblowers, individual privacy, and government transparency and accountability.

 

Comments

[Joe]

Ignorance of the law is no excuse, and it would indicate incompetence, since the FBI is full of lawyers. The perpetrators should be prosecuted, or at least fired, but we will be told again that we need to be moving forward, since dwelling on the past is not productive. (Unfortunately, people cannot be prosecuted for crimes they have not yet committed, and the crimes move into the forbidden past once they have been comitted.) I've been getting the same line at the government agency where I work.