When Bill Keller, executive editor of the New York Times, was buzzed by his secretary that Robert S. Mueller III was on the line, I bet he was nervous.  A call from the FBI is everybody’s second least favorite call.  No need to mention the first.

But according to this Times story, Mueller called to apologize.  He informed Keller that his people made a bit of a “boo boo” four years ago:

The Federal Bureau of Investigation said Friday that it had improperly obtained the phone records of reporters for The New York Times and The Washington Post in the newspapers’ Indonesia bureaus in 2004.

F.B.I. officials said the incident came to light as part of the continuing review by the Justice Department inspector general’s office into the bureau’s improper collection of telephone records through “emergency” records demands issued to phone providers.

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.

Just to avoid any lack of clarity, this is the sort of mistake that the FBI and Department of Justice explained very carefully, very slowly and with the utmost of sincerity, could never happen if only they had the power to “protect Americans from terrorism” by doing anything they pleased without having to ask anyone’s permission.  “Trust us,” they said.  “We’re from the government.”

You have to admit, the fact that Mueller not only admitted that it happened, but apologized for it, is a step in the right direction.  But only a baby step.  The fact remains that it happened.  The fact remains that they did what they did, and had it not come out through a review by the Inspector General, no one would have ever known.

To the FBI, the obtention of reporters’ telephone records was “improper”.  Had it been you or I, a different word would have been used by the FBI: criminal.  An American citizen would go to jail for doing this, while the FBI director gets to say “I’m sorry.”  I have plenty of clients who would be happy to say “I’m sorry” if we could just call the whole thing off.  Let bygones be bygones.  Water under the bridge.  It will never happen again.  I swear.

“The F.B.I. is committed to protecting the news media consistent with the First Amendment and Department of Justice policies, and we very much regret that this situation occurred,” Valerie Caproni, general counsel for the bureau, wrote in a letter to Mr. Keller faxed Friday.

If only warm and fuzzy words like “committed” meant something beyond the double entendre.  They keep promising their sincerity, and they keep making “boo boos.”  Some will say that mistakes will happen.  As criminal defense lawyers, we can vouch for that.  But mistakes have consequences, for everyone except our government.

The problem is that there will always be that zealous lot in our law enforcement agencies who believe the rules don’t apply to them, or their purpose is higher and more important than a bunch of stinking laws or that thing called the Constitution.  They do what they have to do, and can always apologize later.

Over time, in the name of whatever war on (fill in the blank) we’re fighting today, our elected officials give the government more authority to save us from demons, real or pretend, based upon the proposition that government would never abuse its power.  But they do, and we never seem to learn from it, so we rationalize it.  As soon as we have forgotten the last “boo boo,” we extend the government’s authority even farther.

We just can’t seem to learn any lesson.  And the government just can’t seem to keep its promises.