An ’emergency’

FBI Director Robert Mueller recently apologized to The New York Times and The Washington Post for improperly obtaining the phone records of their reporters in Indonesia in 2004.

Still, the FBI did not actually abuse its authority when it seized the phone records of two journalists during some kind of fishing expedition in search of Asian terrorists, the bureau's top lawyer insists. No, it was all just a simple case of "miscommunication."

Normally, top Justice Department officials must approve such requests, and it's up to a grand jury to issue a subpoena. But none of that occurred in the case of the Timesmen. The FBI simply wrote a letter to the phone company asking for the records, mentioning that it was "an emergency."

Valerie E. Caproni, the FBI's general counsel, told The Washington Post this week that an FBI agent recommended seeking Justice Department approval and a grand jury subpoena for the records. Instead, terrorism investigators in the Communications Analysis Unit sent what is known as an "exigent letter," Ms. Caproni admits. It's unclear exactly why they did that, she said, theorizing investigators may just have been trying to be helpful.

Civil liberties groups have criticized the use of such letters, under which the FBI and others compel Americans to provide information, and then forbid them even to say they've done so -- all without court oversight. The Justice Department's inspector general is investigating the use of exigent letters and is expected to release a report as soon as the administration has a chance to whitewash it.

A previous report found more than 700 such letters were sent between 2003 and 2006.

"The number of true emergencies is far smaller than that," Ms. Caproni of the FBI admitted to the Times. "It's a small number of true emergencies, though there are some. There are times when we have true emergencies, and we need things quickly."

The FBI has since banned letters in such vague forms.

Instead, Ms. Caproni purrs reassuringly, investigators seeking urgent information now must write a memo explaining the emergency and their request must be OK'd by a supervisor.

Wow, thanks. We feel so much more "secure in our persons, houses, papers and effects, against unreasonable searches and seizures."

Mike German, Washington policy counsel for the American Civil Liberties Union, isn't buying the FBI's explanation, either.

"It's clear the FBI wants to minimize this as a mistake and not abuse," he said. "The facts are, there was a ridiculous amount of misuse and abuse."

We re-learn here a lesson that we should not have needed to be re-taught. Well-meaning bureaucrats always insist such powers will be used "rarely, only in real emergencies, and only against foreigners, never against actual Americans." Then, once their field operatives have these new powers in their magic bag of tricks, they use them as casually as some teenager down at the mall, flipping open the pastel cell phone that she promised Dad she would "only use in emergencies."