FBI Director Robert S. Mueller III himself apologized for the violation. Last week, after the FBI inspector general office’s discovered that the FBI –back in 2004– had obtained the phone records of Indonesia-based reporters for both The New York Times and The Washington Post, Director Mueller called each newspaper’s editor. The FBI obtained the records by issuing “exigent letters” or emergency demands of phone company providers without going through a grand jury review of evidence.

But seeking the phone records of reporters is supposed to require clearing an even higher hurdle so as not to trample the First Amendment. Justice Department guidelines for FBI and other federal investigations require approval of the attorney general or his or her deputy before obtaining reporters’ records. No such approval was secured in this case.

Not to worry, now says the FBI: no investigative use was made of the phone records and they have since been purged from FBI databases. But the FBI still won’t say why it wanted the reporters’ records to begin with. Nor will the FBI say when the inspector general made the discovery about the 2004 incident. Why is the timing relevant?

The FBI inspector general office’s this March issued a report examining the FBI’s use and misuse of national security letters and other exigent demands in the year 2006. But that report didn’t cover the year 2004 when this episode took place. Instead, the inspector general office’s report covering that period –from 2003 through 2005—was released nearly a year and a half ago in March 2007. FBI inspector general office spokeswoman Cynthia Schnedar declined to comment for this blog saying the matter remains under investigation.

The FBI ended the practice of conducting warrantless surveillance in 2007 in response to the inspector general’s first report. But other U.S. agencies have long enjoyed far more authority to spy overseas. No known guidelines concerning the press –either U.S. or non-American– apply to either the CIA or the National Security Agency when eavesdropping abroad. Intelligence services in many other nations from U.S. allies like Colombia and Pakistan, to less friendly nations like Russia and China are suspected of eavesdropping on journalists. This FBI incident should remind journalists everywhere to exercise caution.

Fortunately, FBI officials may soon shed more light on the 2004 episode in the Senate Judiciary Committee. This week Sens. Patrick J. Leahy, Democrat of Vermont, and Arlen Specter, Republican of Pennsylvania, wrote to FBI Director Mueller requesting formal staff briefings on the FBI’s collection of phone records of Indonesia-based reporters for both the Times and the Post. FBI Director Mueller is also now scheduled to publicly testify before the committee on September 17.

The same senators in their letter to Director Muller said the incident only underscores the need for a federal law that would help protect or “shield” reporters from government authorities including agencies, prosecutors and courts demanding the names of their sources. Sens. Leahy and Specter have introduced a bill that “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,” reads their letter. “This judicial review requirement would preclude a unilateral determination of exigent circumstances or investigative need by the FBI or any executive branch agency.”

In other words, it would make what the FBI did in obtaining the journalists’ phone records in 2004 in Indonesia an explicit violation of the law.

Note: CPJ is a worldwide watchdog that accepts no government funds as it defends the rights of journalists everywhere to report the news without fear of reprisal.

This entry was posted on Friday, August 15th, 2008 at 11:25 am and is filed under Uncategorized .