WASHINGTON – The FBI did not abuse its authority when it seized the phone records of two journalists, according to the bureau's top lawyer, who attributed the improper behavior to simple miscommunication.
FBI Director Robert Mueller recently apologized to The New York Times and The Washington Post for obtaining phone records of reporters in Indonesia in 2004.
Normally, top Justice Department officials must approve such requests and it's up to a grand jury to issue a subpoena. But none of that occurred. The FBI simply wrote a letter to the phone company asking for the records, saying only that it was an emergency.
Valerie E. Caproni, the FBI's general counsel, offered the first public explanation of the misstep. She told The Washington Times that an FBI agent recommended seeking Justice Department approval and a grand jury subpoena for the records.
Instead, terrorism investigators in the Communications Analysis Unit sent what is known as an "exigent letter," Caproni said. It's unclear exactly why they did that, but Caproni said investigators may just have been trying to be helpful.
Civil liberties groups have criticized the use of such letters, which help authorities gather information without judicial review. The Justice Department's inspector general is investigating the use of exigent letters and is expected to release a report soon.
A previous report found that more than 700 such letters were sent between 2003 and 2006.
"The numbers of true emergencies is far smaller than that," Caproni told the newspaper. "It's a small number of true emergencies, though there are some. There are times when we have true emergencies, and we need things quickly."
The FBI has since banned letters in such vague forms. Now, Caproni said, investigators seeking urgent information must write a memo explaining the emergency and the request must be signed off by a supervisor.
Mike German, Washington policy counsel for the American Civil Liberties Union, said he didn't buy the FBI's explanation.
"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."