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Did The FBI Read My Emails?

In the dull drone of a late Friday afternoon in Washington in August — you know, when absolutely nothing happens? — FBI Director Robert Muller called Bill Keller and Len Downie, executive editors of The New York Times and The Washington Post, to inform them that in 2004, the bureau spied on reporters for their papers in Indonesia. Without warrants. Without even the approval of the deputy attorney general. Without, apparently, any good reason. From The New York Times:

The records were apparently sought as part of a terrorism investigation, but the F.B.I. did not explain what was being investigated or why the reporters’ phone records were considered relevant.

The Justice Department places a high bar on the collection of reporters’ records in investigations because of First Amendment concerns, and obtaining such records requires the approval of the deputy attorney general. That requirement was not followed when the F.B.I. obtained the records of two reporters for The Times in Indonesia, Raymond Bonner and Jane Perlez, as well as two reporters there for The Post, Ellen Nakashima and Natasha Tampubolon, officials said.

Mueller — who apologized to Downie and Keller — didn’t find the surveillance records on his own. The only reason he even had to disclose the spying was because Glenn Fine, the Justice Dept.’s inspector general, discovered it. All this happened in spite of what the FBI constantly says is its own rigorous civil-liberties protections in cases of so-called "exigent letters" — demands for communications records made to telecom carriers that circumvent any judicial approval. The ACLU’s Jameel Jaffer comments in a prepared statement:

“The FBI’s disclosure that its agents secretly sought and obtained the phone records of American newspaper reporters confirms once again that there are insufficient safeguards on the agency’s use of national security letters and other intrusive surveillance tools. There aren’t enough controls inside the agency, and there aren’t enough checks from outside the agency. Especially dangerous is the FBI’s power to impose gag orders on those ordered to disclose information. These gag orders, which are often unnecessary and almost always overbroad, invite abuse.”

Is it really so surprising that unchecked surveillance authority yields an erosion of civil liberties? To use an example that hits close to home: I communicate with people in Iraq, Afghanistan and other war-on-terror hotspots with some frequency. To an algorithm in an NSA or FBI computer, I surely look like a person of interest. And you know what I’d really not like? The FBI or the NSA to, say, read my emails and learn who my sources are. That’s some Pervez Musharraf or Hosni Mubarak-level stuff. And it’s also what Bush has left us as his legacy.

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