"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, she said.
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.
Here's one of the emails raising concerns.
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.
The FBI says safeguards instituted in 2007 ended the practice.
The culprit before then: The Patriot Act.
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.
After the Patriot Act, the FBI created an "exceptional circumstances" letter.
A new device called an "exigent circumstances letter" was authorized. It allowed a supervisor to declare an emergency and get the records, then issue a national security letter after the fact.
They were authorized at a high level:
On Jan. 6, 2003, then-FBI Assistant Director for Counterterrorism Larry Mefford issued a bureau-wide communique authorizing the new tactic, saying the bureau's telephone analysis unit was permitted in "exigent circumstances . . . to obtain specialized toll records information for international and domestic numbers which are linked to subjects of pending terrorism investigations."
But, the Bureau didn't follow up with the required national security letter and phone companies began complaining. Enter the whistleblower, Special Agent Bassem Youssef. He began cooperating with the Inspector General.
Here's a telling e-mail, and another on the fake emergencies.
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 practice ended in 2006 when the 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 Post has put the documents it obtained online here.
