WASHINGTON — The FBI illegally collected more than 2,000 U.S. telephone call records between 2002 and 2006 by invoking terrorism emergencies that did not exist or simply persuading phone companies to provide records, according to internal bureau memos and interviews.
FBI officials issued approvals after the fact to justify their actions.
E-mails obtained by the Washington Post detail how counterterrorism officials inside FBI headquarters did not follow their own procedures that were put in place to protect civil liberties. The stream of urgent requests for phone records also overwhelmed the FBI communications analysis unit with work that ultimately was not connected to imminent threats.
A Justice Department inspector general's report due out this month is expected to conclude that the FBI frequently violated the law with its emergency requests, bureau officials confirmed.
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The records seen by the Post do not reveal the identities of the people whose phone call records were gathered, but FBI officials said they thought that nearly all of the requests involved terrorism investigations.
FBI general counsel Valerie Caproni said Monday that the FBI technically violated the Electronic Communications Privacy Act when agents invoked nonexistent emergencies to collect records.
"We should have stopped those requests from being made that way," she said. The after-the-fact approvals were a "good-hearted but not well-thought-out" solution to put phone carriers at ease. "What this turned out to be was a self-inflicted wound."
Caproni said FBI Director Robert Mueller did not know about the problems until they surfaced in the inspector general's probe that began in mid-2006.
Documents show that senior FBI managers up to the assistant director level approved the procedures for emergency requests of phone records and that headquarters officials often made the requests, which persisted for two years after bureau lawyers raised concerns and an FBI official began pressing for changes.
"We have to make sure we are not taking advantage of this system, and that we are following the letter of the law without jeopardizing national security," FBI lawyer Patrice Kopistansky wrote in one of a series of early 2005 e-mails asking superiors to address the problem.
The FBI acknowledged in 2007 that one unit in the agency had improperly gathered some phone records, and a Justice Department audit at the time cited 22 inappropriate requests to phone companies for searches and hundreds of questionable requests. But the latest revelations show that the improper requests were much more numerous under the procedures approved by the top level of the FBI.
FBI officials told the Post that their own review has found that about half of the 4,400 toll records collected in emergency situations or with after-the-fact approvals were done in technical violation of the law. The searches involved only records of calls and not the content of the calls.
In some cases, agents broadened their searches to gather numbers two and three degrees of separation from the original request, documents show.
Bureau officials said agents were working quickly under the stress of trying to thwart the next terrorist attack and were not violating the law deliberately.
FBI officials said they are confident that the safeguards enacted in 2007 have ended the problems. Caproni said the bureau will use the inspector general's findings to determine whether discipline is warranted.
The internal memos were obtained from a government employee outside the FBI, who gained access to them during the investigations of the searches. The employee spoke on the condition of anonymity because the release was unauthorized.
After the Sept. 11, 2001, attacks, the need to get information quickly and connect the dots was considered paramount throughout the federal government. The failure to obtain timely and actionable information has been a recurrent theme in the U.S. counterterrorism effort, up to and including the recent shootings at Fort Hood, Texas.
Before 9/11, FBI agents ordinarily gathered records of phone calls through the use of grand jury subpoenas or through an instrument known as a national security letter, issued for terrorism and espionage cases. Such letters, signed by senior headquarters officials, carry the weight of subpoenas with the firms that receive them.
The USA Patriot Act expanded the use of national security letters by letting lower-level officials outside Washington approve them and allowing them in wider circumstances. But the letters still required the FBI to link a request to an open terrorism case before records could be sought.