Federal Government, Screw-Ups

F.B.I. Lawyer FAIL

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Last year, government lawyers were crucified for their prosecution of former Alaska Senator Ted Stevens. The DOJ prosecutors’ questionable handling of the case led to its dismissal and some problems for the DOJ’s public integrity unit.
This week marks another big f***-up by government lawyers. But in a different building. The Washington Post reports that the F.B.I. has been busted for breaking the law for years in its collection of Americans’ phone records from Verizon and AT&T:

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.

Among those whose records were searched were reporters at the New York Times and the Washington Post. The searches became public when FBI director Mueller called the journalists to apologize. Whoops?


According to FBI general counsel Valerie Caproni, the FBI “technically violated the Electronic Communications Privacy Act when agents invoked nonexistent emergencies to collect records.” Guys at my high school used to make up terrorism emergencies to secretly look at fellow Americans’ phone records all the time, it was no big deal.
Had FBI agents not created excuses after the fact, everything would have been just dandy, says Caproni:

“We should have stopped those requests from being made that way,” [Caproni] said. The after-the-fact approvals were a “good-hearted but not well-thought-out” solution to put phone carriers at ease, she said. In true emergencies, Caproni said, agents always had the legal right to get phone records, and lawyers have now concluded there was no need for the after-the-fact approval process. “What this turned out to be was a self-inflicted wound,” she said.

The DOJ issued a report [PDF] today about the problems at the FBI. The Electronic Frontier Foundation is especially incensed by the the use of Post-it Notes to justify investigations. FBI lawyers are faulted for their oversight or lack thereof (via Webwire):

The FBI’s failures also involved senior attorneys in FBI OGC [Office of the General Counsel]. NSLB [National Security Law Branch] attorneys failed to recognize the seriousness of the information they learned in late 2004 and early 2005 about the “form letter” — an exigent letter — that was being used in the CAU to obtain records from the on-site providers that was followed by after-the-fact NSLs [National Security Letters]. From then until March 2007, when the OIG’s first NSL report was issued, FBI OGC failed to take sufficient action to address the FBI’s improper use of these exigent letters and after-the-fact legal process.

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The former NSLB deputy general counsel, Julie Thomas, bears the brunt of the criticism for being asleep at the wheel when it came to keeping the FBI on a legal road.
Thanks to the recession, applications for government jobs have skyrocketedcolor=red>, meaning that the government can bring in the talent that Biglaw used to steal away. It’s a good thing; it sounds like Uncle Sam needs better legal advice.
FBI broke law for years in phone record searches [Washington Post]
FBI Replaced Legal Process with Post-It Notes to Obtain Phone Records [Electronic Frontier Foundation]

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