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FBI broke law for years in phone record searches

The FBI's general counsel says Director Robert S. Mueller III, shown at an FBI Academy graduation in Quantico, did not learn about the unlawful collection of phone records until 2006, when they ended.
The FBI's general counsel says Director Robert S. Mueller III, shown at an FBI Academy graduation in Quantico, did not learn about the unlawful collection of phone records until 2006, when they ended. (2006 Photo By Jahi Chikwendiu/the Washington Post)
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"I also understand that some of these are being done as emergencies when they aren't necessarily emergencies," Kopistansky wrote in an April 26, 2005, e-mail to Youssef.

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Kopistansky and the other FBI lawyers discussed a strategy to handle the past emergency searches and to allow the practice to continue.

The e-mails show that they conceived the idea to open half a dozen "generic" or "broad" preliminary investigative (PI) case files to which all unauthorized emergency requests could be charged so a national security letter could be issued after the fact.

The generic files were to cover such broad topics as "threats against transportation facilities," "threats against individuals" and "threats against special events," the e-mails show.

Eventually, FBI officials shifted to a second strategy of crafting a "blanket" national security letter to authorize all past searches that had not been covered by open cases.

A November 2006 e-mail chain indicates that then-FBI Assistant Director for Counterterrorism Joseph Billy signed the blanket national security letter. But when FBI lawyers raised concerns about it, he wrote back that he did not remember signing.

"I have no recollection of signing anything blanket. NSLs are individual as far as I always knew," Billy wrote Caproni on Nov. 7, 2006.

Billy did not immediately respond to a message left at his office on Monday. Kopistansky and Bald, reached by phone Friday, said they could not comment without FBI approval. Mefford did not return calls.

In all, FBI managers signed 11 "blanket" national security letters addressing past searches, officials told The Post.

Although concerns about their legality first arose in December 2004, exigent searches continued for two more years. Youssef's unit began limiting the number of exigent letters it signed between summer 2005 and spring 2006, seeking more assurances the requests could be covered by a national security letter, the memos show.

Phone record searches covered by exigent letters ended in November 2006 as the Justice Department inspector general began investigating.

Among those whose phone records were searched improperly were journalists for The Washington Post and the New York Times, according to interviews with government officials.

The searches became public when Mueller, the FBI director, contacted top editors at the two newspapers in August 2008 and apologized for the breach of reporters' phone records. The reporters were Ellen Nakashima of The Post, who had been based in Jakarta, Indonesia, and Raymond Bonner and Jane Perlez of the Times, who had also been working in Jakarta.

Solomon, a former Post reporter and Washington Times editor, is a freelance journalist. Johnson is a Post staff writer.


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