Media reports concerning the FBI's violations of its NSL reporting requirements ignore the real story: President Bush long ago proclaimed the right to ignore those requirements.
(updated below – updated again – Update III)
Multiple media outlets are focusing on the unsurprising story that the FBI seems to have been abusing its powers under the Patriot Act to issue so-called “national security letters” (NSLs), whereby the FBI is empowered to obtain a whole array of privacy-infringing records without any sort of judicial oversight or subpoena process. In particular, the FBI has failed to comply with the legal obligations imposed by Congress, when it re-authorized the Patriot Act in early 2006, which required the FBI to report to Congress on the use of these letters.
That the FBI is abusing its NSL power is entirely unsurprising (more on that below), but the real story here — and it is quite significant — has not even been mentioned by any of these news reports. The only person (that I’ve seen) to have noted the most significant aspect of these revelations is Silent Patriot at Crooks & Liars, who very astutely recalls that the NSL reporting requirements imposed by Congress were precisely the provisions which President Bush expressly proclaimed he could ignore when he issued a “signing statement” as part of the enactment of the Patriot Act’s renewal into law. Put another way, the law which the FBI has now been found to be violating is the very law which George Bush publicly declared he has the power to ignore.
It was The Boston Globe‘s Charlie Savage who first drew attention to the Patriot Act signing statement in a typically superb article, back in March, 2006, which reported:
When President Bush signed the reauthorization of the USA Patriot Act this month, he included an addendum saying that he did not feel obliged to obey requirements that he inform Congress about how the FBI was using the act’s expanded police powers.
The bill contained several oversight provisions intended to make sure the FBI did not abuse the special terrorism-related powers to search homes and secretly seize papers. The provisions require Justice Department officials to keep closer track of how often the FBI uses the new powers and in what type of situations. Under the law, the administration would have to provide the information to Congress by certain dates.
Bush signed the bill with fanfare at a White House ceremony March 9, calling it ”a piece of legislation that’s vital to win the war on terror and to protect the American people.” But after the reporters and guests had left, the White House quietly issued a ”signing statement,” an official document in which a president lays out his interpretation of a new law.
In the statement, Bush said that he did not consider himself bound to tell Congress how the Patriot Act powers were being used and that, despite the law’s requirements, he could withhold the information if he decided that disclosure would ”impair foreign relations, national security, the deliberative process of the executive, or the performance of the executive’s constitutional duties.”
Bush wrote: ”The executive branch shall construe the provisions . . . that call for furnishing information to entities outside the executive branch . . . in a manner consistent with the president’s constitutional authority to supervise the unitary executive branch and to withhold information . . . ”
The statement represented the latest in a string of high-profile instances in which Bush has cited his constitutional authority to bypass a law.
When a country is ruled by an individual who repeatedly and openly arrogates unto himself the power to violate the law, and specifically proclaims that he is under no obligation to account to Congress or anyone else concerning the exercise of radical new surveillance powers such as NSLs, it should come as absolutely no surprise that agencies under his control freely break the law. The culture of lawlessness which the President has deliberately and continuously embraced virtually ensures, by design, that any Congressional limits on the use of executive power will be violated.
That NSLs are a dangerous and oversight-less instrument which entail enormous potential for abuse is hardly a new revelation. But those who tried to warn of such dangers were tarred and feathered as allies of the Terrorists, people who wanted to prevent the Commander-in-Chief from protecting the American people. Who else would possibly express concerns about The Patriot Act?
As a result of that commonplace, debate-precluding cartoon campaign, Russ Feingold — the only Senator to vote against the original enactment of the Patriot Act — was able to convince only nine of his fellow Democratic Senators to oppose re-authorization of the Patriot Act. And though the media aided the White House in obscuring the substantive objections he raised to that bill, Feingold repeatedly emphasized that he was in favor of many of the provisions of the Patriot Act, but was concerned about the lack of safeguards to protect Americans from abuse — specifically the standard-less and oversight-less NSLs (as he said then: “we need to place safeguards on the broad NSL power and to put a sunset on that power so that Congress can make sure it’s not abused”). But as usual, such concerns were drowned out by manipulative appeals to the need of the Commander-in-Chief to Protect Us from The Terrorists.
Back in November, 2005, when the re-authorization of the Patriot Act was being “debated,” the abuse by the FBI of these NSLs was documented in an excellent expose by The Washington Post‘s Barton Gellman:
The FBI now issues more than 30,000 national security letters a year, according to government sources, a hundredfold increase over historic norms. The letters — one of which can be used to sweep up the records of many people — are extending the bureau’s reach as never before into the telephone calls, correspondence and financial lives of ordinary Americans. . . . .
A national security letter cannot be used to authorize eavesdropping or to read the contents of e-mail. But it does permit investigators to trace revealing paths through the private affairs of a modern digital citizen. The records it yields describe where a person makes and spends money, with whom he lives and lived before, how much he gambles, what he buys online, what he pawns and borrows, where he travels, how he invests, what he searches for and reads on the Web, and who telephones or e-mails him at home and at work.
In the same Post article, the genuine threat posed by this invasive instrument was made clear by Bob Barr:
“The beef with the NSLs is that they don’t have even a pretense of judicial or impartial scrutiny,” said former representative Robert L. Barr Jr. (Ga.), who finds himself allied with the American Civil Liberties Union after a career as prosecutor, CIA analyst and conservative GOP stalwart. “There’s no checks and balances whatever on them. It is simply some bureaucrat’s decision that they want information, and they can basically just go and get it.”
One of the very few attempts over the last six years from Congress to impose at least some safeguards on the use of radical new executive powers was to require that the FBI report to Congress on the issuance of NSLs, so that Congress could at least know about (and, theoretically, take action in response to) any abuse of these powers. But the minute George Bush got what he wanted — re-authorization of the Patriot Act — he proclaimed for all the world to hear that he had the power to violate those provisions and refuse to comply with such safeguards. And now it is revealed that the FBI has, in fact, violated the very provisions which the President proclaimed he could violate. Perhaps someone other than Silent Patriot might want to take note of that connection.
The Bush administration has created vast and permanent data bases to collect and store evidence revealing the private activities of millions of American citizens. When the FBI obtains information essentially in secret — with no judicial oversight — that information is stored in those data bases. This is all being done by the executive branch with no safeguards and no oversight, and the little oversight that Congress has required has been defiantly and publicly brushed aside by the President, who sees legal requirements as nothing more than suggestions or options which he will recognize only if he chooses to. That is the constitutional crisis that we have endured under virtually the entire Bush presidency — the crisis which, for the most part, our mainstream political and media elite have collectively decided not to acknowledge.
The story here is not merely that the FBI is breaking the law and abusing these powers. That has long been predicted and, to some degree, even documented. The story is that the FBI is ignoring the very legal obligations which George Bush vowed were not obligations at all, but mere suggestions to be accepted only if he willed it. It is yet another vivid example proving that the President’s ideology of lawlessness exists not merely in theory, but as the governing doctrine under which the executive branch has acted, time and again and as deliberately as possible, in violation of whatever laws it deems inconvenient.
UPDATE: Russ Feingold issued the following statement this morning regarding these revelations (via e-mail):
This report proves that “trust us” doesn’t cut it when it comes to the government’s power to obtain Americans’ sensitive business records without a court order and without any suspicion that they are tied to terrorism or espionage. I fought hard to prevent abuses of this power when the Senate debated reauthorizing the Patriot Act last year. I will work with Senator Leahy and Senator Rockefeller to make sure the Judiciary and Intelligence Committees conduct full and prompt investigations, and I will press for quick Senate action on sensible reforms to help prevent future abuses of National Security Letters.
One of the principal reasons why Sen. Feingold’s warnings about the obvious dangers of re-authorization were so easily ignored was the media’s tolerance for Op-Eds like this one — published by The Washington Post in November, 2005 — from Attorney General Alberto Gonzales. Needless to say, the first sentence of his argument urging re-authorization of the Patriot Act was this: “On Sept. 11, 2001, terrorists inspired by hatred murdered nearly 3,000 innocent Americans.”
Gonzales went on to brand as “unfounded” concerns over abuse of the powers granted by the Patriot Act, and said that this was the choice the country faced: “Congress must act now or risk bringing terrorism prevention to a halt. . . . Congress must act immediately and reauthorize the Patriot Act before the men and women in law enforcement lose the tools they need to keep us safe.”
As always, the Bush administration presented a choice: (a) succumb to the Leader’s will by vesting in him the unchecked powers that he demands, or (b) help The Terrorists attack and kill innocent Americans. That binary, exploitive formula was promoted by the media and it single-handedly prevented rational examination of any of these vital issues over the last six years. The FBI’s illegal and abusive conduct is the direct by-product of that manipulation, and it is but a tiny fraction of the systematic law-breaking we have endured since 2001 at the highest levels of our government.
UPDATE II: The full report by the DOJ’s Inspector General can be found, in .pdf form, here (h/t sysprog). This report was required by Congress when it re-authorized the Patriot Act, and it covers the FBI’s use of NSLs for the period of 2003-2005; the second report, covering 2006, is due at the end of the year.
The report characterized the FBI’s conduct as constituting “serious misuse” of the NSL powers, and it is suffuse with findings of the FBI’s irregularities and improprieties. Several noteworthy aspects of the report, beginning with an illustrative passage of the report’s findings:
And what is done with the information obtained by the FBI? It is stored on government data bases which thousands of government employees can access:
More disturbingly, NSLs are being issued with much greater frequency to obtain the records of “U.S. persons” (citizens and legal residents) rather than aliens:
And while the report concluded that it could not find that these violations were deliberate (hardly a dispositive finding coming, as it does, from the Bush Justice Department), the report emphasized that its investigation into the existence of criminality was itself often hampered by the FBI’s failure to maintain proper records concerning its use of NSLs:
The report indicates that there is no consistency, virtually no controls, and continuous violations of legal and regulatory guidelines for how the FBI is using these extremely invasive NSL weapons. The information that the FBI is gathering on Americans simply gets deposited into widely accessed and permanent data bases.
And this report, as indicated, is from the Bush Justice Department. But this is the country we have created for ourselves by allowing the President to insist upon not only more and more invasive powers, but the ability to exercise those powers in virtual secrecy and with no limits. And the few limits which Congress has imposed are simply ignored because the administration knows that — at least thus far — there have been no consequences, and little public outcry, prompted by its law-breaking.
The information being gathered and stored on the private lives of American citizens by the federal government is vast and growing — and that is the conclusion compelled by what we know about what this government has been doing. This is an administration that has operated behind an unprecedented veil of secrecy, and it is undoubtedly the case that there are whole surveillance programs about which we have not learned. Do Americans really want the federal government compiling electronic dossiers on them with virtually no safeguards and no oversight?
UPDATE III: This Daily Kos diarist makes the fair point that it is not technically accurate to say that Congress required the FBI itself to report to Congress on its NSL activities. Instead, Congress required that the Justice Department file the report which was disclosed today, the purpose of which is to report to Congress on the FBI’s NSL activities. That point is true as far as it goes, but the fact remains that there is a clear connection between, on the one hand, the FBI’s failure to comply with the legal restrictions governing NSLs and its accompanying documentation requirements, and on the other, President Bush’s proclamation that those requirements can be ignored.
In other words, the Inspector General technically complied with the Congressional requirement by filing this report, but the report itself was woefully incomplete as a result of the FBI’s failure to document its activities as it was required to do. And where the report was able to reach definitive conclusions despite the FBI’s record-keeping failures, it concluded that the FBI has been repeatedly violating legal requirements governing NSLs in numerous ways.
UPDATE IV: Further developments on this matter are discussed here.
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