CQ TODAY – LEGAL AFFAIRS
Aug. 11, 2008 – 5:29 p.m.
Senators Ask for More Information About FBI Snooping on Reporters

The top lawmakers on the Senate Judiciary Committee are pressing the FBI for more information about the bureau’s acquisition of reporters’ telephone records without proper authorization.

FBI Director Robert S. Mueller III revealed last week that the bureau had issued “exigent letters” to gather telephone records of Washington Post and New York Times reporters in Jakarta in 2004.

Judiciary Committee Chairman Patrick J. Leahy, D-Vt., and the panel’s ranking Republican, Arlen Specter of Pennsylvania, told Mueller in a letter Monday that they “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.”

In a 2007 report, the Justice Department’s inspector general found that between 2003 and 2005, the bureau had issued hundreds of the letters, ostensibly emergency requests for telephone billing records and subscriber information. The bureau regularly told telephone companies that subpoenas would follow, but often they didn’t.

In many cases, the inspector general found, there was no pending investigation or emergency underlying the letters, and no subpoenas or “national security letters” (NSLs) were subsequently issued to backstop the exigent letters. A letter from FBI general counsel Valerie Caproni to Washington Post executive editor Leonard Downie Jr. said “no subpoena was ever issued for your telephone toll records,” according to the Post. The bureau stopped using exigent letters in the wake of the report.

“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,” Leahy and Specter wrote. “Together, these revelations underscore the importance of vigorous congressional oversight and suggest that additional legislation may be needed.”

Leahy and Specter said the FBI’s latest revelation suggests “a pressing need” for legislation sponsored by Specter (S 2035) that would establish a federal shield law for reporters.

Under the legislation, the government would have to demonstrate its need for such information, from reporters or their communications service providers, to a federal judge. Reporters would be given notice and an opportunity to be heard by the judge, with possible exceptions.

The Bush administration is opposed to the legislation. So far, a few of Specter’s GOP colleagues, especially Jon Kyl of Arizona, have been successful in blocking it. The Senate voted 51-43 on July 30 against limiting debate on a motion to proceed to the bill. The tally fell nine votes short of the 60 votes needed to limit debate on the motion.

It is unclear whether Senate Majority Leader Harry Reid, D-Nev., will try to call up the legislation again before the end of the 110th Congress.

Source: CQ Today
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