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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)

The inspector general's report said that the wording of the exigency letters was copied from a standard letter that the FBI's New York office used to obtain urgently needed records after the 2001 terrorist bombings. When officials from that office were later reassigned to create the CAU in Washington, the senior FBI official said, "they brought their business practices with them" and continued to use the same letter "for reasons that I cannot explain."

But the unit was not authorized under FBI rules to make such requests, and from the outset in 2003 it asked FBI field offices to submit the promised legal follow-up documents. The offices rarely did so speedily, and in many cases ignored the request altogether.

"In practice, if you have already got the records, the incentive to do the paperwork is reduced," the senior FBI official said.

When a lawyer in the FBI's national security law branch, Patrice Kopistansky, noted in late 2004 that the proper legal justifications were frequently missing or extremely late, she did not advise agents to "change their process," the senior official said. "Our advice was instead to . . . use these letters only in true emergencies" and institute "covering practices."

These included ensuring that the bureau's agents had opened a related investigation and promptly sent a formal national security letter to provide legal backing for the demand.

Bassem Youssef, who currently heads the CAU, raised concerns about the tardy legal justifications shortly after he was assigned to the job in early 2005, according to his lawyer, Steve Kohn.

"He discovered they were not in compliance, and then he reported that to his chain of command. They defended the procedures and took no action," Kohn said, adding that "their initial response was to deny the scope of the problem."

Youssef has battled the FBI in court over whether he was denied a promotion because of discrimination based on his ethnicity.

Eventually, the general counsel's office organized a meeting at headquarters on Sept. 26, 2005, where the bureau considered a work-around: Its lawyers proposed creating special, catch-all investigative files that could be used to authorize quick phone-records seizures that did not involve open field investigations.

But one official at the meeting, Youssef, argued that genuine emergency requests for the records "were few and far between," according to an e-mail summarizing the meeting that was reviewed by The Washington Post, and the idea was never implemented. The account referred to efforts by one of the bureau's top lawyers to brief "higher ups" in the agency about the problem.

"At some point, they told us there were not that many such letters" still in use, the senior official said. "We believed the problem had resolved itself . . . in retrospect, it never got resolved."

One reason that FBI officials did not act more quickly is that Kopistansky and others in the general counsel's office did not review until May 2006 copies of any of the exigent circumstances letters sent to the phone companies from 2003 to 2005. As a result, they were unaware that some of the letters contained false statements about forthcoming subpoenas and urgent deadlines, the senior official said.

Bureau officials ultimately decided to "clean up" the problem by writing seven national security letters designed to provide legal backing for all the telephone records requests that still needed it, the senior FBI official said. In every case, these requests in 2006 covered records already in the FBI's possession and lacked the required cover memos spelling out the investigative requirements for the requests.

At no time did senior FBI officials outside the communications unit attempt to tally how often the exigent circumstances letters had been used, with the result that Mueller and others in senior management did not learn about the scope of the problem until two months ago, when Fine informed them, the senior official said.

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