- The Washington Times - Tuesday, August 26, 2008

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.

Ms. Caproni said the case agent did not say it was an emergency, but the agent in CAU sent an “exigent letter” anyway.

While it is not known why the agent in CAU sent the letter, Ms. Caproni suggested the agent in CAU may have been trying to be helpful. She also noted CAU is on the front lines of the fight against terrorism and that the unit was busy at the time.

Mike German, policy counsel for the American Civil Liberties Union’s Washington legislative office, said he didn’t buy Ms. Caproni’s argument. “It’s clear the FBI wants to minimize this as a mistake and not abuse,” he said. “The facts are, there was a ridiculous amount of misuse and abuse.”

Ms. Caproni said she does not want to minimize the bureau’s mistakes, but stressed changes made in recent years should prevent a similar situation in the future.

She said the bureau has banned the use of “exigent letters” and has a new process in place to obtain such information in an emergency.

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