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FBI: Too Busy to Follow its Own Rules?

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August 28, 2008

The Washington Times reported Tuesday on the still-being-investigated case of the FBI collecting the phone records of four reporters working for The New York Times and Washington Post's Indonesia bureaus. Earlier this month, FBI Director Robert Mueller apologized to the papers' editors for collecting its reporters' phone records.

The Washington Times reports:

While it is not known why the agent in [Communications Analysis Unit (CAU)] sent the [exigent letter demanding the phone records], [FBI general counsel Valerie Caproni] suggested the agent in CAU may have been trying to be helpful. She also noted CAU is on the front lines of the fight against terrorism and that the unit was busy at the time.

Now, everyone's pretty used to hearing officials play the "terrorism" card as an excuse for lack of oversight and abuse, but this is pretty weak excuse. Even if we took Caproni at her word, she's basically saying that the CAU agent was too busy to get Justice Department permission and a grand jury subpoena—what's officially required when seeking information from journalists—to properly ask for the information sought by the FBI.

This kind of abuse doesn’t surprise ACLU Policy Counsel Mike German, who tells the Washington Times, "It's clear the FBI wants to minimize this as a mistake and not abuse…The facts are, there was a ridiculous amount of misuse and abuse." And Mike should know, as he was an FBI agent for 16 years before coming to the ACLU.

This is only the latest in a string of abuses that the Office of the Inspector General (OIG) has found with the FBI's abuse of both exigent letters and National Security Letters. (Both letters lack any requirement of judicial oversight.) Another report, specifically on the use of exigent letters, from the OIG is due out this fall. Something tells us we won't be surprised when we learn of even more abuse of these letters.

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