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War on Terror or War on Free Press? FBI Used Unconstitutional, Illegal Seizure of Reporters’ Phone Records to Find Source of Politically Embarrassing Leaks

I’ve never written such a long headline before, but each and every element of it is crucial:

* The Department of Justice Office of the Inspector General has released a report, parts of which remain classified but parts of which have been declassified. Read it here.

* This report concludes that the FBI broke the law, with authorization from FBI leadership.

* The report reveals that searches through newspaper reporters’ phone records occurred without warrants.

* The report further reveals that these searches were proclaimed to be necessary in response to emergency terrorist threats, but were actually for the purpose of finding out who in the Bush administration was talking to the press with embarrassing information.

* FBI Director Robert Mueller has known of these activities for more than three years but publicly revealed nothing until this week.

Don’t just take my word for this; read the report for yourself, which contains not only this but many other revelations.

The Washington Post already revealed earlier this week that the FBI had illegally and falsely claimed a terrorist emergency in order to gain access to journalists’ phone records. But the new OIG report reveals more: that the journalists’ phone records were accessed in order for the administration of George W. Bush to solve a political problem: finding out who among their ranks was talking to the press.

The Regulations

OIG report pages 89-90:

We determined that in three media leak investigations the FBI requested, and in two of these instances obtained from the on-site communnications service providers, telephone records or other calling activity information for telephone numbers assigned to reporters. However, the FBI did not comply with the federal regulation and Department policy that requires Attorney General approval and a balancing of First Amendment interests and the interest of law enforcement before issuing subpoenas for the production of reporters’ telephone toll billing records….

Because of the First Amendment interests implicated by compulsory process to obtain reporter’s testimony or their telephone records, 28 CFR 50.10 (2004) requires special approvals and other advance steps before Department employees are permitted to issue subpoenas for reporters’ testimony or the production of their telephone records.

Specifically, this regulation requires that before issuance of such subpoenas, “all reasonable attempts should be made to obtain information from alternative sources.” This regulation also requires the Department to attempt to negotiate the voluntary appearance of the news media personnel or the voluntary acquisition of their records. If the records are needed for a criminal investigation, the regulation requires “reasonable grounds to believe, based on information obtained from non-media sources, that a crime has occurred, and that the information sought is essential to a successful investigation….” Any requests for such subpoenas must be approved by the Attorney General in accordance with principles specified in the regulations.

The regulation also requires that if the telephone toll records of members of the news media are subpoenaed without the required notice, the affected member of the news media must be notified “as soon thereafter as it is determined that such notification will no longer pose a … substantial threat to the integrity of the investigation” and, in any event, within 45 days of any return in response to the subpoena. Finally, the regulations state that failure to obtain the prior approval of the Attorney General “may constitute grounds for an administrative reprimand or other appropriate disciplinary action.”

What leaks did the newspaper reporters receive to prompt FBI attempts to find the source?

OIG report page 91:

OIG Report Page 91: The subject matter of the New York Times and Washington Post reports based on leaks?  It's Classified.

Sorry, citizen. Even though the New York Times and Washington Post have already published reports based on these leaks, you don’t have the right to know which newspaper reports prompted the FBI’s efforts to ferret out the whistleblower inside the Bush administration. That’s classified.

In subsequent pages, even the year in which the FBI’s search for the whistleblower occurred has been redacted.

For how many phone numbers were records seized, and under what authority?

OIG Report Pages 92-94:

The case agent’s November 5 e-mail listed 12 [redacted] telephone numbers, 8 of which were identified in the e-mail as belonging to Washington Post reporters [redacted] and Washington Post researcher [redacted] and New York Times reporter [redacted]. The e-mail identified a 7-month time period…

…the CAU SSA [Communications Analysis Unit Supervisory Special Agent] issued an exigent letter dated December 17, [redacted], to Company A for telephone records of the reporters and others listed in the case agent’s November 5, [redacted] e-mail…. The CAU SSA’s exigent letter sought records on nine telephone numbers, seven of which were identified in the e-mail exchanges described above as belonging to Washington Post and New York Times reporters or their news organizations’ bureaus in [redacted]….

The exigent letter also stated that the request was made “due to exigent circumstances” and that “subpoenas requesting this information have been submitted to the U.S. Attorney’s Office who will process and serve them formally on [Company A] as expeditiously as possible.” However, this statement was not accurate. A subpoena request had not been sent to the U.S. Attorney’s Office at the time the exigent letter was served, or at any time thereafter….

The CAU SSA told us that he used exigent letters based on the guidance he had received from a Company A analyst who told him “explicitly that this was the approved process between the attorneys for [Company A] as well as, you know,… the attorneys for the Bureau.”…

However, the case agent told us that he did not tell the CAU SSA who signed the exigent letter that there were any exigent circumstances associated with his inquiry. Similarly, the squad supervisor told us that no one had told her of any exigent circumstances being presented to the CAU SSA in connection with this request….

We determined that the Company A analyst gave the FBI 22 months of records for the Washington Post reporter [redacted] telephone number, of which only 38 days fell within the 7-month period of interest initially identified by the case agent as relevant to the leak investigation. In addition, 22 months of records were provided to the FBI for the telephone number assigned to the Washington Post’s [redacted] bureau, of which only 20 days fell within the 7-month period of interest. For the remaining five numbers, none of the retrieved records provided to the FBI fell within the 7-month period of interest….

In total, Company A provided the FBI with toll billing records for 1,627 telephone calls… We determined that CAU personnel uploaded all of the reporters’ and news organizations’ records for the 1,627 telephone calls provided by Company A into a [redacted] database on December 22, [redacted], where they were available for searching by authorized FBI and other [redacted] personnel.

Information on 12 phone numbers was requested, not only including three Washington Post and New York Times reporters but the phone records of their entire bureaus in [redacted], some place we don’t know. The FBI’s justification was “exigent circumstances,” even though the agent claiming “exigent circumstances” had not been told exigent circumstances existed, and even though the investigation did not regard a terrorist threat but rather the identity of a whistleblower, a person in the Bush administration who had been leaking information to the Washington Post and New York Times.

What are “exigent circumstances”?

OIG Report Pages 9-10:

I. The Electronic Communications Privacy Act (ECPA)

To protect the confidentiality of telephone and e-mail subscriber information and telephone toll billing records information, the Electronic Communications Privacy Act (ECPA) states that communications service providers “shall not knowingly divulge a record or other information pertaining to a subscriber or customer of such service … to any government entity.” The ECPA contains an exception to maintaining the confidentiality of such records by imposing a “duty to provide” responsive records if the Director of the FBI or his designee certifies in writing that the records sought are

“relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities, provided that such an investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution of the United States.”

The circumstances were not exigent, as is described above and the case agent declared elsewhere (OIG Report Page 97). They were not part of an “investigation to protect against international terrorism or clandestine intelligence activities”; they were part of an investigation to find out who in the Bush administration had been talking to reporters, reporters carrying out activities protected by the first amendment to the Constitution of the United States, namely that freedom-of-the-press part. Nevertheless, exigent circumstances were claimed to obtain phone records for three reporters and two entire news bureaus, reporters and news bureaus for the two most significant national newspapers in the United States.

That’s not all. It turns out there were two other investigations into leaks by Bush administration officials to reporters in which reporters’ phone records were taken without legal authorization (OIG Report Page 276-278).

Conclusion: Violation, Five Times Over
What we have here are not simply false claims of terrorism to obtain phone call records. What we have here are not simply false claims of terrorism to obtain phone call records without a warrant. What we have here are not simply false claims of terrorism to obtain phone calls of Americans without a warrant. What we have here are not simply false claims of terrorism to obtain phone calls of American reporters without a warrant. What we have here are false claims of terrorism to obtain phone calls of American reporters without a warrant in order to ascertain the identity of a Bush administration leaking whistleblower.

That’s the violation of constitution, regulation, law, power and the trust of Americans, violation five times over. If news of these compounded violations do not produce sufficient outrage to bring congressional hearings, legal reform, criminal investigation and prosecution, what else will?

We know the answer. Oral sex. There is no oral sex involved, and so we will watch everyone move along as if nothing untoward had happened.

2 thoughts on “War on Terror or War on Free Press? FBI Used Unconstitutional, Illegal Seizure of Reporters’ Phone Records to Find Source of Politically Embarrassing Leaks”

  1. Luke says:

    So many questions come to mind. How can “congressional hearings, legal reform, criminal investigation and prosecution” happen if the Attorney General and our Congressmen and women who *should* be doing these things arn’t doing them?
    Is our only lever of power phone calls and letters that seem to be brushed off so easily?
    How do we get them to listen effectively, when almost everyone in Congress refuses to act on any of these matters? I have written letters, made phone calls, written blogs/essays/emails for so long with no discernible result that it really feels futile. Most of our elected officials simply are not doing the things they are constitutionally bound to do, and even the Supreme court is not calling them on it. It is a deep and abiding problem that I have no idea how to even attempt to solve. Most of what I have accomplished is to alienate family members and be accused of paranoia and “freaking out”. I include in this all of the inaction on torture prosecutions and abuse of power investigations and the illegality of the war in Iraq. Sorry to vent hear, but it is out of feeling helpless and not knowing anything else to try.

    1. Jim says:

      I hear you, and I can identify with a lot of those feelings, Luke. Each of us individually is powerless in the grand scope of the world. The most we can do is to each try to raise our voices and hope that others do too. You can be assured, Luke, that you’ve done your part. Remember the Ethiopian saying: When spiders unite, they can tie down a lion. We just need enough spiders.

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