The FBI illegally obtained US telephone call records—including those of Washington Post and New York Times journalists—between 2002-06 by falsely claiming a terrorism emergency and later issuing national security letters to make the seizures appear legitimate. That’s what John Solomon and Carrie Johnson, writing for the Washington Post, have uncovered. “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,” write Solomon and Johnson.
The Post writers report that FBI Director Robert Mueller knew about the problems in “late 2006 or early 2007.” Concerns about the bureau’s illegal actions first arose in late 2004 but the illegal activities continued until 2006, when the Justice Department inspector general’s investigation began.
The illegal requests were clear violations of the Electronic Communications Privacy Act and involved records of calls, not the content of the calls. Prior to the September 11, 2001 attacks, the FBI was required to obtain subpoenas or national security letters to gain access to telephone records. The USA Patriot Act broadened the use of national security letters by allowing lower-level officials approve them in more cases but still required a verified link to an active terrorism case.
Solomon and Johnson report that just after the Patriot Act was passed in October 2001, the FBI invented its own workaround to limitations the bureau saw in the Patriot Act:
“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.”
Larry Mefford, who was then the FBI’s assistant director for counterterrorism emailed an authorization of the bureau’s workaround, noting that the workaround “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.”
The FBI’s Patriot Act workaround continued for years and the bureau failed to follow up with the required national security letters. As a result, the telephone companies began to complain that they hadn’t received documentation of the searches’ legality. In early 2005, Patrice Kopistansky in the FBI’s general counsel’s office wrote a series of emails requesting an open terrorism case file for the national security letters. None of the case files were forthcoming.
Emails acquired by Solomon and Johnson show that rather than stopping the illegal practice, Kopistansky and other FBI lawyers strategized opening several generic preliminary investigative case files—“threats against transportation facilities,” “threats against individuals,” “threats against special events,” and the like—to which all the illegal “emergency” cases could be attached. National security letters would be issued after the fact.
Solomon and Johnson report that Kopistansky’s scheme was overridden with an even more bizarre strategy: “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.” The catch-all national security letter was signed by Joseph Billy who was then the FBI’s assistant director for counterterrorism. Billy later emailed FBI lawyers that he did not remember signing the catch-all national security letters: “I have no recollection of singing anything blanket. NSLs are individual as far as I always knew.”
FBI officials told Solomon and Johnson that bureau managers signed 11 of the “blanket” national security letters.
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