FBI blames phone flap on miscommunication

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By Ben Conery

NEWSMAKER INTERVIEW:

The FBI's top lawyer said miscommunication - not malevolence - led the bureau in 2004 to improperly obtain the telephone records of newspaper reporters writing about Islamic terrorism in Indonesia.

Valerie E. Caproni, the FBI's general counsel, told The Washington Times in an interview that her explanation was based on a preliminary review of e-mails sent among agents at the time.

It was the first time an FBI official described any circumstances surrounding the situation, though the explanation seems unlikely to sway critics.

A more definitive account of the situation is expected to be included in a forthcoming report from the Justice Department's Inspector General (IG) into the use of so-called "exigent letters."

The FBI used such letters to request telephone toll-billing records and subscriber information, but not the content of the calls. The letters sent to the phone companies simply stated the information was being requested because of an emergency.

"Exigent letters" are similar to the controversial National Security Letters (NSLs), which allow agents to gather certain information without normal judicial oversight.

In the case regarding the New York Times and The Washington Post, the FBI violated a long-standing Justice Department policy that requires high-level approval before seeking that type of information from journalists.

FBI Director Robert S. Mueller III apologized to The Times and The Post earlier this month, and the case likely will be brought up Sept. 17, when he testifies before the Senate Judiciary Committee.

Ms. Caproni said the case agent e-mailed an agent in the terrorism-investigating Communications Analysis Unit (CAU) to suggest seeking Justice Department permission and a grand jury subpoena to obtain the reporters' phone records.