Amid Concerns, FBI Lapses Went On

FBI Director Robert S. Mueller III has taken responsibility for problems with the collection of records. He said that agents made mistakes in their use of
FBI Director Robert S. Mueller III has taken responsibility for problems with the collection of records. He said that agents made mistakes in their use of "exigent circumstance letters" and that he has banned the use of such letters. (By Dennis Brack -- Bloomberg News)

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By R. Jeffrey Smith and John Solomon
Washington Post Staff Writers
Sunday, March 18, 2007

FBI counterterrorism officials continued to use flawed procedures to obtain thousands of U.S. telephone records during a two-year period when bureau lawyers and managers were expressing escalating concerns about the practice, according to senior FBI and Justice Department officials and documents.

FBI lawyers raised the concerns beginning in late October 2004 but did not closely scrutinize the practice until last year, FBI officials acknowledged. They also did not understand the scope of the problem until the Justice Department launched an investigation, FBI officials said.

Under pressure to provide a stronger legal footing, counterterrorism agents last year wrote new letters to phone companies demanding the information the bureau already possessed. At least one senior FBI headquarters official -- whom the bureau declined to name -- signed these "national security letters" without including the required proof that the letters were linked to FBI counterterrorism or espionage investigations, an FBI official said.

The flawed procedures involved the use of emergency demands for records, called "exigent circumstance" letters, which contained false or undocumented claims. They also included national security letters that were issued without FBI rules being followed. Both types of request were served on three phone companies.

Referring to the exigent circumstance letters, Sen. Charles E. Grassley (R-Iowa) wrote in a letter Friday to Justice Department Inspector General Glenn A. Fine: "It is . . . difficult to imagine why there should not have been swift and severe consequences for anyone who knowingly signed . . . a letter containing false statements. Anyone at the FBI who knew about that kind of wrongdoing had an obligation to put a stop to it and report it immediately."

A March 9 report by Fine bluntly stated that the FBI's use of the exigency letters "circumvented" the law that governs the FBI's access to personal information about U.S. residents.

The exigency letters, created by the FBI's New York office after the Sept. 11, 2001, attacks, told telephone providers that the FBI needed information immediately and would follow up with subpoenas later. There is no basis in the law to compel phone companies to turn over information using such letters, Fine found, and in many cases, agents never followed up with the promised subpoenas, he said.

But Fine's report made no mention of the FBI's subsequent efforts to legitimize those actions with improperly prepared national security letters last year.

Fine's report brought a deluge of criticism on the FBI, prompting a news conference at which Director Robert S. Mueller III took responsibility for the lapses. Some lawmakers immediately proposed curtailing the government's expansive anti-terrorism powers under the USA Patriot Act.

In a letter to Fine that was released along with the March 9 report, Mueller acknowledged that the bureau's agents had used unacceptable shortcuts, violated internal policies and made mistakes in their use of exigent circumstance letters.

Mueller also said he had banned the future use of such letters this month, although he defended their value and denied that the agency had intentionally violated the law.

Other FBI officials acknowledged widespread problems but said they involved procedural and documentation failures, not intentional misgathering of Americans' phone records. Mueller ordered a nationwide audit, which began Friday, to determine if the inappropriate use of exigency letters went beyond one headquarters unit.


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