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FBI 'fabricated terror emergencies to get phone records'

Justice department to accuse FBI of invoking crises to obtain details of more than 2,000 calls, Washington Post reports

by Chris McGreal in Washington
19 January 2010
guardian.co.uk

The US justice department is preparing a report which concludes that the FBI repeatedly broke the law by invoking terrorism emergencies that did not exist to obtain more than 2,000 telephone call records over four years from 2002, including those of journalists on US newspapers, according to emails obtained by the Washington Post.

The bureau also issued authorisations for the seizure of records after the fact, in order to justify unwarranted seizures.

The Washington Post said the emails show how counter-terrorism ­officials inside FBI headquarters breached regulations designed to protect civil liberties.

The FBI's general counsel, Valerie Caproni, told the Washington Post that the agency violated privacy laws by inventing non-existent terrorist threats to justify collecting the phone records. "We should have stopped those requests from being made that way," she said.

Caproni said that FBI's issuing of authorisations after the fact was a "good-hearted but not well thought-out" move to give the phone companies legal cover for handing over the records.

After the 9/11 attacks, the USA patriot act greatly expanded the government's ability to monitor American citizens, including increased access to their phone calls with the approval of lower-level officials than previously allowed. But the authorisation had to be tied to an open terrorism investigation.

The Washington Post said two FBI officers had raised concerns. Special agent Bassem Youssef observed that the necessary authorisations were not being sought before phone records were seized and were sometimes only given later in response to complaints from phone companies. Another official, Patrice Kopistansky of the FBI's legal office, noticed a similar problem. She also raised concerns when she was unable to get investigators to provide her with an open terrorism case to justify issuing relevant authorisation.

The Washington Post reported that Kopistansky and Youssef discussed the worsening "backlog" of cases without the necessary authorisations, or where false claims were made about terrorism emergencies. "I also understand some of these are being done as emergencies when they aren't necessarily emergencies," Kopistansky wrote to Youssef in April 2005.

The FBI subsequently issued a blanket authorisation covering all past searches, although its legality was questioned.

The Washington Post said journalists on the newspaper and the New York Times were among those whose phone records were illegally searched. The FBI later apologised to editors of both papers.


By John Solomon and Carrie Johnson
Special to The Washington Post and Washington Post Staff Writer
Tuesday, January 19, 2010
The Washington Post

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.

Read more:

FBI broke law for years to get phone records

All related documents (pdf)

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