Leahy, Specter Press Mueller For
Information
About Improper FBI Access Of Reporters’ Phone Records
WASHINGTON (Monday, 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.
“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. A PDF is also available
here.
# # # # #
August 11, 2008
The Honorable Robert S. Mueller,
III
Director
Federal Bureau of Investigation
935 Pennsylvania Avenue, NW
Washington, DC 20535
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 ARLEN
SPECTER
Chairman
Ranking Member