Inspector general cites 'egregious breakdown' in FBI oversight

By Carrie Johnson
Washington Post Staff Writer
Thursday, January 21, 2010

FBI agents for years sought sensitive records from telephone companies through e-mails, sticky notes, sneak peeks and other "startling" methods that violated electronic privacy law and federal policy, according to a Justice Department inspector general report released Wednesday.

The study details how the FBI between 2002 and 2006 sent more than 700 demands for telephone toll information by citing often nonexistent emergencies and using sometimes misleading language. The practice of sending faulty "exigent" letters to three telecommunications providers became so commonplace that one FBI agent described it to investigators as "like having an ATM in your living room."

Inspector General Glenn A. Fine said the findings were "troubling" and urged the FBI and the Justice Department to "take additional corrective action" in response to the 289-page report. Information on more than 3,500 phone numbers may have been gathered improperly, but investigators said they could not glean a full understanding because of sketchy record-keeping by the FBI.

At a hearing Wednesday on Capitol Hill, FBI Director Robert S. Mueller III said that the bureau had stopped using emergency letters in 2006 after he and the inspector general became aware of problems. Mueller pointed out that the bureau did not monitor the content of phone calls but tracked only numbers, dates, times and durations of the calls. He also pledged that FBI officials would review the report to determine whether disciplinary action should be taken against employees.

Investigators concluded that the trouble was compounded because employees for three of the telecommunications companies shared office spare at the FBI's communications analysis unit between 2003 and 2008, effectively serving as members of the FBI's "team" under "poor supervision and ineffective oversight."

At times, what the inspector general called an "egregious breakdown" extended to misstatements to the special Foreign Intelligence Surveillance Court about how sensitive information had been obtained by federal law enforcement, the report said.

Senate Judiciary Chairman Patrick J. Leahy (D-Vt.) said: "This was not a matter of technical violations. If one of us did something like this, we'd have to answer for it. This was authorized at high levels within the FBI and continued for years."

Leahy and other Democrats including Rep. Jerrold Nadler (N.Y.) said the report underscored the need for changes to the USA Patriot Act, set to expire at the end of February, which gives the FBI authority to send letters to phone companies and financial institutions seeking information on Americans.

For the report, inspector general officials interviewed more than 100 current and former FBI employees, including the counterterrorism division and members of the general counsel's office. The officials recommended that the FBI review whether some of the requests from agents to phone companies required notification of defendants in investigations or criminal prosecutions.

As part of a leak investigation, the FBI used exigent letters to improperly obtain toll phone call information from Washington Post reporter Ellen Nakashima and New York Times reporters Jane Perlez and Raymond Bonner, all working in Jakarta, Indonesia, about six years ago. The letter was not followed up with a subpoena and it did not secure the approval of the attorney general, which is required when seeking reporters' phone records under Justice Department policy, the inspector general report said.

The inspector general uncovered the problems in 2008, prompting Mueller to call editors of the two news organizations to apologize. The report also detailed at least two other efforts to obtain reporter phone call information as part of unspecified leak investigations that may have violated Justice Department requirements.

Investigators cited management failures at "every level of the FBI," from the communications analysis unit and counterterrorism officials to lawyers in the general counsel's office, that they say led to the problem with emergency letters and helped it persist for years.

The Justice Department's Public Integrity Section reviewed the allegations but decided not to prosecute those who signed the exigent letters or took part in developing them, the report said.

"The OIG report finds no intentional attempts to obtain records that counterterrorism personnel knew they were not legally entitled to obtain," said Michael P. Kortan, the FBI's assistant director for public affairs. "No FBI employee obtained telephone records for reasons other than a legitimate investigative interest. FBI employees involved in this matter obtained the telephone records at issue to perform their critical mission to prevent a terrorist attack or otherwise to support a counterterrorism investigation."