Senators Specter, Leahy Press Mueller for Information About Improper FBI Access of Reporters' Phone Records

Washington, D.C. -- August 11, 2008 -- Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) and Ranking Member Arlen Specter (R-Pa.) sent a letter Monday to Federal Bureau of Investigation (FBI) Director Robert Mueller pressing the Director to provide more information to Committee members about the misuse of so-called “exigent letters.” Press accounts last week revealed that Mueller apologized to editors at The New York Times and The Washington Post for a 2004 breach of Department of Justice guidelines regarding subpoenas for reporters’ phone records.

The Department of Justice’s Inspector General has been investigating the FBI’s use of national security letters, and a March 2007 IG report first identified the FBI’s misuse of exigent letters. According to press accounts, FBI agents misused exigent letters to obtain the phone records of Post and Times reporters based in Indonesia in 2004.

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“While we commend you for personally apologizing to the newspapers on behalf of the FBI, and for personally bringing this matter to the Committee’s attention, we expect to receive a more complete accounting of this violation of the Justice Department’s guidelines intended to protect privacy and journalists’ First Amendment rights,” Leahy and Specter wrote.

Leahy and Specter have both advocated for passage of the Free Flow of Information Act, federal legislation that seeks to establish a qualified privilege for reporters who have promised confidentiality to sources. The administration has opposed the bill, arguing that the Department of Justice guidelines provide adequate protection. The proposed legislation would protect public access to information and news, recognizing that for a free press to act as a check on government and to expose fraud in the public and private sector, reporters often must promise confidentiality to a source.

“If nothing else, these new findings suggest a pressing need for the legislation we have cosponsored with a bipartisan group of Senators to create a qualified privilege for reporters,” Leahy and Specter continued.

The full text of the letter follows:

August 11, 2008

The Honorable Robert S. Mueller, III
Director
Federal Bureau of Investigation
Washington, DC

Dear Director Mueller:

We were disappointed to learn that, in 2004, the Federal Bureau of Investigation (FBI) misused so-called “exigent letters” to obtain the telephone records of reporters working in the Jakarta, Indonesia, bureaus of The Washington Post and The New York Times. While we commend you for personally apologizing to the newspapers on behalf of the FBI, and for personally bringing this matter to the Committee’s attention, we expect to receive a more complete accounting of this violation of the Justice Department’s guidelines intended to protect privacy and journalists’ First Amendment rights.

The FBI’s misuse of “exigent letters” first came to light in March 2007, as part of a congressionally-mandated Inspector General (IG) audit of National Security Letters (NSLs). In addition to uncovering problems with NSLs, the IG found that the FBI had misused “exigent letters” to obtain records from telephone companies. The letters claimed that the records were being requested due to “exigent circumstances” and that subpoenas or NSLs would follow. According to the IG, however, “the FBI used the exigent letters in non-emergency circumstances, failed to ensure that there were duly authorized investigations to which the requests could be tied, and failed to ensure that NSLs were issued promptly after the fact.”

We recognize that, after the March 2007 report, you ended the FBI’s practice of using “exigent letters.” We also appreciate that, according to an IG audit earlier this year, the “FBI and the Department have made significant progress” in implementing corrective actions. Nevertheless, the new revelations about the improper collection of reporters’ phone records -- combined with the general reports on the misuse of NSLs and exigent letters -- create a troubling impression of deliberate wrongdoing or serious negligence at the FBI. Together, these revelations underscore the importance of vigorous congressional oversight and suggest that additional legislation may be needed.

If nothing else, these new findings suggest a pressing need for the legislation we have cosponsored with a bipartisan group of Senators to create a qualified privilege for reporters, the “Free Flow of Information Act of 2008.” Our bill includes a provision designed to limit the government’s ability to collect the telephone records of reporters. In most cases, this provision would require a court to balance the government’s need for the information against the public’s interest in newsgathering and the free flow of information. Moreover, with rare exceptions, a federal court may compel the disclosure of such records from a phone company only after the reporter is given notice and an opportunity to be heard. This judicial review requirement would preclude a unilateral determination of exigent circumstances or investigative need by the FBI or any executive branch agency.

In future congressional hearings, we plan to ask you about the misuse of exigent letters and the possible need for additional legislation. We also look forward to the IG’s follow-up report on this topic. Before then, however, we request that the FBI fully brief Committee staff on the incidents involving reporters for The New York Times and The Washington Post, so that we can have a more substantive and constructive discussion of the matter in the very near future.

Sincerely,

PATRICK LEAHY, Chairman

ARLEN SPECTER, Ranking Member

Source: Senator Arlen Specter