Moon of Alabama Brecht quote
March 20, 2007

The FBI's New Phone Record Process

The White House is searching for a new Attorney General and the Justice Department releases a 3,000 pages document dump (i.e. the docs that survived the fire). While this is to disguise the political machinations behind the firing of some non-"Bushies" U.S. attorneys and to keep the press off the real trails, another DOJ scandal is developing below the headlines.

The Justice Department's Inspector General had issued a report that accused the FBI of using illegal means to get citizen phone records through major telecom companies. Now the FBI adopted a new process: to stop documenting the illegal means it uses.

Glenn Greenwald described the former process:

In order to obtain telephone records within this FBI-telecom framework, FBI agents have been simply furnishing letters to the telecom companies -- not even NSLs, just plain letters from an agent -- assuring the telecom companies that (a) the records were needed immediately due to "exigent circumstances" and (b) a subpoena for the records had been submitted to the U.S. Attorneys Office and was in the process of being finalized. Upon receiving that letter, the telecoms provided any records the FBI requested -- instantaneously, via computer.
Worse, in many of these cases where these letters were provided, they were completely false -- both because there were no "exigent" circumstances of any kind and there were no subpoenas that were submitted or being processed. So the FBI agents who submitted these instruction letters repeatedly made false statements in order to obtain highly intrusive records.

Today the House Judiciary Committee will hold a hearing on the issue. In a preemptive leak by FBI officials we now learn that a new regulation has been put into place that eases the process the DOJ Inspector General criticised.

John Solomon of the Washington Post seems to be the only one reporting this:

This month, the bureau sent field agents a new "emergency letter" template for seeking the records, shortly before the public release of a report by the Justice Department's inspector general that documented abuses of emergency phone-records collection by counterterrorism agents, officials said.

The contents of this new "emergency template" is unknown. The official FBI leaker assures us of its harmlessness.

New rules from the FBI general counsel's office tell agents they are to limit emergency requests for phone records to the most dire situations, in which the loss of life or bodily harm is believed to be imminent. They are to document carefully the circumstances surrounding the request.

But agents abused the former process of "exigent letters" in emergency requests and did not document their requests as demanded by law. How has this been corrected with the new process? 

Agents also have been relieved of a paperwork burden that was at the heart of past problems, officials said.

Under past procedures, agents sent "exigent circumstances letters" to phone companies, seeking toll records by asserting there was an emergency. Then they were expected to issue a grand jury subpoena or a "national security letter," which legally authorized the collection after the fact. Agents often did not follow up with that paperwork, the inspector general's investigation found.

The new instructions tell agents there is no need to follow up with national security letters or subpoenas. The agents are also told that the new letter template is the preferred method in emergencies but that they may make requests orally, with no paperwork sent to phone companies.

There had been a process that required documentation, if even after the fact, in form of a National Security Letter or a grand jury subpoena. The FBI agents did not follow this process and did not restrict their requests to emergencies.

The new process is no process at all, not even an "exigent letter" that the phone company could use as documentation justifying their cooperation is needed. The FBI agents can issue some oral emergency requests and are totally relieved of documenting this or to keep even a semblance of legality through after-the-fact National Security Letters or grand jury subpoena.

If an FBI agent wants to find out who a citizen, or an elected official, is talking to on the phone, he just has to whisper "emergency" and will have all phone records he wishes without preparing any paperwork burden at all.

While this may sound a bit too unrestricted, try to see the obvious advantages:

  • there will be no future DOJ Inspector General reports on mis-documented phone record requests and
  • FBI agents will be relieved of documentating and will have more time to issue more such requests to keep you save from the terrorists.

Indeed the incoming Attorney General should use this example and relieve other parts of the DOJ  bureaucracy of "paperwork burden that is at the heart of problems." Warrants, indictments and sentences could easily be based on pure oral statements without providing documentation. 

Of course the use of such would strictly be limited to emergencies.

Posted by b on March 20, 2007 at 13:14 UTC | Permalink


but, if you're not doing anything wrong what is the problem?

Posted by: jcairo | Mar 20 2007 13:22 utc | 1

Can anyone deny that this rogue regime is totally out of control?

If Alberto Gonzales gets away with a simple resignation...

He needs to do some time in his own gulag where his own black hooded agents can help him remember his role in 9/11, and the Kennedy assassinations.

Posted by: John Francis Lee | Mar 20 2007 14:38 utc | 2

And how did this happen?

Professor of Sociology, Frances Fox Piven seems to have an answer....The War at Home: The Domestic Costs of Bush's Militarism corrupted democracy...

Just heard her say in an interview on today's kpfa's 'the morning show' interview that these type things, such as b's The FBI's New Phone Record Process post is a symptom the overall process of The War at Home: The Domestic Causes and Consequences of America's Imperial Wars.

Posted by: Uncle $cam | Mar 20 2007 14:45 utc | 3

Just add it to list of rights violated by our gov't.
They violate the 1st Amendment by opening mail, caging demonstrators and banning books like "America Deceived" from Wiki America Deceived (sample chps).
They violate the 2nd Amendment by confiscating guns during Katrina.
They violate the 4th Amendment by conducting warrant-less wiretaps.
They violate the 5th and 6th Amendment by suspending habeas corpus.
They violate the 8th Amendment by torturing.
They violate the entire Constitution by starting 2 illegal wars based on lies and on behalf of a foriegn gov't.
Vote for Dr. Ron Paul, 2008. He's our only hope.

Posted by: Wes Dallas | Mar 20 2007 16:06 utc | 4

p.s. here's (see below) a real video presentation, it is a direct link to a ram file for realplayer, good for those whom use realplayer, however, I hate realplayer and it's real products--it's bloat-ware--, therefore, some but not all like myself choose to use the Real_Alternative free-codecs, aka: the open source guts of realplayer(tm) without the crap that comes with it.

Lou Douglas Lecture Series Speakers: Dr. Frances Fox Piven

Posted by: Uncle $cam | Mar 20 2007 16:14 utc | 5

Listend to the Judicary Committee hearing - the WaPo report only came up in one question and there an evasive answer to it.

The DOJ IG was there and the FBI's Generel Counsel, Valerie Caprani. My impression was several times that she was too evading or better said outright lying to the Committee. Conyers as head of the committee had not put the witness under oath - wonder why ...

Posted by: b | Mar 20 2007 16:48 utc | 6

Watchdog Calls FBI Abuses Inexcusable

Posted by: Uncle $cam | Mar 20 2007 20:45 utc | 7

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