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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)

"We wish, in retrospect, that we had learned about this sooner, corrections had been made and the process was more transparent," FBI Assistant Director John Miller said yesterday.

Fine's report said the bureau's counterterrorism office used the exigency letters at least 739 times between 2003 and 2005 to obtain records related to 3,000 separate phone numbers. FBI officials acknowledged that the process was so flawed that they may have to destroy some phone records to keep them from being used in the future, if the bureau does not find proof they were gathered in connection with an authorized investigation.

Disciplinary action may be taken when the bureau completes an internal audit, a senior FBI official said in an interview at headquarters Friday.

Ann Beeson, an attorney for the ACLU who has sued the FBI in an effort to block some of its data requests, said that if the bureau cannot prove a link between the letters and an ongoing investigation, its requests were "a total fishing expedition."

The FBI agreed that one senior official, who spoke on the condition of anonymity because of forthcoming House and Senate hearings on the matter, would speak for the agency.

Lawmakers have begun to probe who knew about the use of the letters and why the department did not act more swiftly to halt the practice. Grassley asked that Fine turn over to the Senate Judiciary Committee copies of all FBI e-mails related to the letters of demand, as well as transcripts of the interviews Fine conducted on the issue.

The committee has scheduled a hearing for Wednesday, with Mueller as the chief witness. On Tuesday, the House Judiciary Committee intends to question Fine and FBI general counsel Valerie Caproni.

FBI and Justice Department officials said most of the letters at issue were drafted by the Communications Analysis Unit (CAU), which comprises about a dozen people assigned to analyze telephone records and other communications for counterterrorism investigators. They sent the secret requests to three companies -- AT&T, Verizon and a third firm whose identity could not be learned. Since the 2001 terrorist attacks, the FBI has been paying the companies' cost of supplying such records almost instantaneously in a form that its agents can readily examine, according to the report and the senior FBI official.

In each letter, the FBI asserted that "due to exigent circumstances, it is requested that records for the attached list of telephone numbers be provided." The bureau promised in most of the letters that subpoenas for the same information "have been submitted to the U.S. Attorney's office who will process and serve them formally."

But the inspector general's probe concluded that many of the letters were "not sent in exigent circumstances" and that "there sometimes were no open or pending national security investigations tied to the request," contrary to what U.S. law requires. No subpoenas had actually been requested before the letters were sent. The phone companies nonetheless promptly turned over the information, in anticipation of getting a more legally viable document later, FBI officials said.

The use of such letters was virtually "uncontrolled," said an FBI official who was briefed on the issue in early 2005. By that fall, CAU agents had begun creating spreadsheets to track phone records they had collected for a year or more that were not covered by the appropriate documents, according to FBI e-mails and interviews with officials.

A spokesman for AT&T declined to discuss the topic, referring questions to the FBI. Verizon spokesman Peter Thonis , who would not confirm nor deny the existence of an FBI contract with his firm, said that "every day Verizon subpoena units respond to emergency requests from federal, state and local law enforcement for particular calling records. After 9/11, of course, Verizon responded to FBI emergency requests in terrorist matters, and we had every reason to believe they were legitimate emergency situations."

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