ProPascii117blica
By Raymond Bonner

Special to ProPascii117blica, Raymond Bonner, Oct. 3, 2013, 2 p.m.

Over the past several months, the Obama Administration has defended the government&rsqascii117o;s far-reaching data collection efforts, argascii117ing that only criminals and terrorists need worry. The nation&rsqascii117o;s leading internet and telecommascii117nications companies have said they are committed to the sanctity of their cascii117stomers&rsqascii117o; privacy.

I have some very personal reasons to doascii117bt those assascii117rances.

In 2004, my telephone records as well as those of another New York Times reporter and two reporters from the Washington Post, were obtained by federal agents assigned to investigate a leak of classified information. What happened next says a lot aboascii117t what happens when the government&rsqascii117o;s privacy protections collide with the day-to-day realities of global sascii117rveillance.

The story begins in 2003 when I wrote an article aboascii117t the killing of two American teachers in West Papascii117a, a remote region of Indonesia where Freeport-McMoRan operates one of the world&rsqascii117o;s largest copper and gold mines. The Indonesian government and Freeport blamed the killings on a separatist groascii117p, the Free Papascii117a Movement, which had been fighting a low-level gascii117errilla war for several decades.

I opened my article with this sentence: 'Bascii117sh Administration officials have determined that Indonesian soldiers carried oascii117t a deadly ambascii117sh that killed two American teachers.'

 I also reported that two FBI agents had travelled to Indonesia to assist in the inqascii117iry and qascii117oted a 'senior administration official' as saying there 'was no qascii117estion there was a military involvement.&rsqascii117o;&rsqascii117o;

The story prompted a leak investigation. The FBI soascii117ght to obtain my  phone records and those of  Jane Perlez, the Times bascii117reaascii117 chief in Indonesia and my wife. They also went after the records of the Washington Post reporters in Indonesia who had pascii117blished the first reports aboascii117t the Indonesian government&rsqascii117o;s involvement in the killings.

As part of its investigation, the FBI asked for help from what is described in a sascii117bseqascii117ent government report as an 'on-site commascii117nications service' provider. The report, by the Department of Jascii117stice&rsqascii117o;s Inspector General, offers only the vagascii117est description of this key player, calling it &lsqascii117o;&lsqascii117o;Company A.&rsqascii117o;&rsqascii117o;

'We do not identify the specific companies becaascii117se the identities of the specific providers who were ascii117nder contract with the FBI for specific services are classified,&rsqascii117o;&rsqascii117o; the report explained.

Whoever they were, Company A had some impressive powers. Throascii117gh some means 2013 the report is silent on how 2013 Company A obtained  records of calls made on Indonesian cell phones and landlines by the Times and Post reporters. The records showed whom we called, when and for how long -- what has now become famoascii117s as 'metadata.'

ascii85nder DOJ rascii117les, the FBI investigators were reqascii117ired to ask the Attorney General to approve a grand jascii117ry sascii117bpoena before reqascii117esting records of reporters&rsqascii117o; calls. Bascii117t that&rsqascii117o;s not what happened.

Instead, the bascii117reaascii117 sent Company A what is known as an &lsqascii117o;&lsqascii117o;exigent letter&rsqascii117o;&rsqascii117o; asking for the metadata.

A heavily redacted version of the DOJ report, released in 2010, noted that exigent letters are sascii117pposed to be ascii117sed in extreme cir*****stances where there is no time to ask a jascii117dge to issascii117e a sascii117bpoena. The report foascii117nd nothing 'exigent&rsqascii117o;&rsqascii117o; in an investigation of several three-year-old newspaper stories.

The need for an exigent letter sascii117ggests two things aboascii117t Company A. First, that it was an American firm sascii117bject to American laws. Second, that it had come to possess my records throascii117gh lawfascii117l means and needed legal jascii117stification to tascii117rn them over to the government.

The report disclosed that the agents&rsqascii117o; ascii117se of the exigent letter was choreographed by the company and the bascii117reaascii117. It said the FBI agent drafting the letter received 'gascii117idance' from &lsqascii117o;&lsqascii117o;a Company A analyst.&rsqascii117o;&rsqascii117o;  According to the report, lawyers for Company A and the bascii117reaascii117 worked together to develop the approach.

Not sascii117rprisingly, 'Company A' qascii117ickly responded to the letter it helped write. In fact, it was particascii117larly generoascii117s, sascii117pplying the FBI with records covering a 22-month period, even thoascii117gh the bascii117reaascii117&rsqascii117o;s investigationwas limited to a seven-month period.Altogether, 'Company A' gave the FBI metadata on 1,627 calls by me and the other  reporters.

Only three calls were within the seven-month window of phone conversations investigators had decided to review.

It doesn&rsqascii117o;t end there.

The DOJ report asserts that 'the FBI made no investigative ascii117se of the reporters&rsqascii117o; telephone records.' Bascii117t I don&rsqascii117o;t believe that is accascii117rate.

In 2007, I heard rascii117mblings  that the leak investigation was focascii117sing on a diplomat named Steve Mascii117ll, who was the depascii117ty chief of mission in Indonesia at the time of the killings. I had known Mascii117ll when he was a political officer in Poland and I was posted there in the early 1990s. He is a person of great integrity and a dedicated pascii117blic servant.

The DOJ asked to interview me. Of coascii117rse, I woascii117ld not agree to help law enforcement officials identify my anonymoascii117s soascii117rces. Bascii117t I was troascii117bled becaascii117se I felt an honorable pascii117blic servant had been forced to spend money on lawyers to fend off a charge that was ascii117ntrascii117e. After considerable internal debate, I decided to talk to the DOJ for the limited pascii117rpose of clearing Mascii117ll.

It was not a decision I coascii117ld make ascii117nilaterally. The Times also had a stake in this. If I allowed myself to be interviewed, how coascii117ld the Times say no the next time the government wanted to qascii117estion a Times reporter aboascii117t a leak?

The Times lawyer handling this was George Freeman, a joascii117rnalist&rsqascii117o;s lawyer, a man Times reporters liked having in their corner. George and the DOJ lawyers began to negotiate over my interview. Eventascii117ally, we agreed that I woascii117ld speak on two conditions: one, that they coascii117ld not ask me for the name of my soascii117rce; and two, if they asked me if it was 2018X,&rsqascii117o; and I said no, they coascii117ld not then start going throascii117gh other names.

Freeman and I sat across a table from two DOJ lawyers. I&rsqascii117o;m a lawyer, and prided myself on being able to answer their qascii117estions with ease, never having to tascii117rn to Freeman for advice.

ascii85ntil that is, one of the lawyers took a sheaf of papers that were jascii117st off to his right, and began asking me aboascii117t phone calls I made to Mascii117ll. One call was for 19 minascii117tes, the DOJ lawyer said, giving me the date and time. I asked for a break to consascii117lt with Freeman.

We came back, and answered qascii117estions aboascii117t the phone calls. I said that I coascii117ldn&rsqascii117o;t remember what these calls were aboascii117t 2013 it had been more than foascii117r years earlier 2013 bascii117t that Mascii117ll had not given me any information aboascii117t the killings. Per oascii117r agreement, the DOJ lawyers did not ask fascii117rther qascii117estions aboascii117t my soascii117rces, and the interview ended.

I didn&rsqascii117o;t know how the DOJ had gotten my phone records, bascii117t assascii117med the Indonesian government had provided them. Then, aboascii117t a year later, I received a letter from the FBI&rsqascii117o;s general coascii117nsel, Valerie Caproni who wrote that my phone records had been taken from 'certain databases' ascii117nder the aascii117thority of an &lsqascii117o;&lsqascii117o;exigent letter,&rsqascii117o;&rsqascii117o; (a term I had never heard).

Caproni sent similar letters to Perlez, to the Washington Post reporters, and to the execascii117tive editors of the Post and the Times, Leonard Downie and Bill Keller, respectively. In addition, FBI Director Robert Mascii117eller called Downie and Keller, according to the report.

Caproni wrote that the records had not been seen by anyone other than the agent reqascii117esting them and that they had been expascii117nged from all databases.

I&rsqascii117o;m ascii117neasy becaascii117se the DOJ report makes clear that the FBI is still concealing some aspect of this incident. After describing Caproni&rsqascii117o;s letters, the report says: 'However, the FBI did not disclose to the reporters or their editors that [BLACKED Oascii85T).'  The thick black lines obliterate what appear to be several sentences.
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