By Carrie Johnson
Washington Post Staff Writer
Saturday, August 9, 2008
FBI Director Robert S. Mueller III apologized to two newspaper editors yesterday for what he said was a recently uncovered breach of their reporters' phone records in the course of a national security investigation nearly four years ago.
Mueller called the top editors at The Washington Post and the New York Times to express regret that agents had not followed proper procedures when they sought telephone records under a process that allowed them to bypass grand jury review in emergency cases.
The Justice Department's inspector general, who is reviewing the bureau's procedures in such cases, uncovered lapses that allowed FBI agents in 2004 to obtain telephone records of Post staff writer Ellen Nakashima, who was based in Jakarta, Indonesia, at the time. The FBI also obtained telephone records of an Indonesian researcher in the paper's Jakarta bureau, Natasha Tampubolon.
Records of New York Times reporters Raymond Bonner and Jane Perlez, who worked in Jakarta in 2004, also were compromised, the Times confirmed yesterday.
The FBI refused to disclose the nature or subject of the investigation that prompted the request for the phone records. At the time, the reporters were writing articles about Islamic terrorism in Southeast Asia.
Efforts to obtain phone records for reporters are subject to special rules at the Justice Department, generally requiring approval by the attorney general or another top official. But such procedures were not followed in the two incidents found by Inspector General Glenn A. Fine, bureau officials said yesterday.
FBI agents involved in the undisclosed national security probe stated at the time of the request that they would follow up with subpoenas from a U.S. attorney, but "no subpoena was ever issued for your telephone toll records," according to a letter that Post Executive Editor Leonard Downie Jr. received yesterday from FBI General Counsel Valerie Caproni.
Toll phone records are akin to a listing of phone calls that are made or received, without offering any insight into the substance of the conversation. Such transactional records can be useful building blocks for investigators seeking to develop leads and make connections among people under government scrutiny.
The procedure used to secure the toll phone records is known as an exigent circumstances letter, which flourished after the Sept. 11, 2001, terrorist attacks when investigators raced to collect phone records and e-mails from telecommunications companies to pursue leads in national security probes. Agents frequently adopted a form letter from the FBI's New York office without tailoring their sensitive requests to specific investigations, as required.
In the case of the four reporters highlighted yesterday, FBI spokesman Michael P. Kortan said, "No investigative use was made of the records, and they have now been removed from the FBI's databases."
The FBI discontinued use of the emergency letters after privacy advocates and internal watchdogs cited hundreds of cases in which agents intentionally, or out of sloppiness, did not follow up their "exigent" requests with paperwork that linked the submission to a genuine matter of national security.
But investigators continue to employ a similar investigative tool, national security letters, which allow FBI agents to obtain a host of financial and other records from third-party businesses to advance terrorism investigations. The bureau has been chastised for overreaching and for failing to back up the secret requests, which reached 60,000 per year after the 2001 attacks. Officials say they have implemented new safeguards to prevent mistakes and misconduct by agents.
Bureau officials said yesterday that, in an effort to prevent recurrences, they recently reminded agents in charge of field offices and their top lawyers that requests for news media records involve special rules.
Fine's report on the issue is expected to be released in the next several weeks, Mueller told Downie yesterday afternoon. The inspector general declined comment.
"I thanked Director Mueller for calling and informing us of this and apologizing," Downie said. "I told him that we would be asking our general counsel to look into this."
Bill Keller, executive editor of the Times, said in an e-mail that "we'd still like to know more about how this happened and how the bureau is securing against similar violations in the future."
Nakashima declined comment yesterday. Bonner and Perlez, now stationed in London for the Times, did not return e-mail messages late yesterday.
Staff researcher Julie Tate contributed to this report.