Many of the problems with the FBI's unsupervised use of NSL's to spy on Americans were disclosed -- by The Washington Post and others -- prior to the re-authorization of the Patriot Act in January, 2006. But those problems did not impede re-authorization because the Justice Department -- in letters to Congress and in classified briefings -- emphatically assured Congress and the public that the Post's claims were false. They insisted that the FBI's use of NSLs was subject to rigorous Departmental scrutiny, scrutiny which revealed that no such problems existed. The DOJ aggressively argued that the Post's NSL expose "presented a materially misleading portrayal of the FBI's use of national security letters."
Based on the DOJ's false assurances, Congress dismissed away the concerns of Russ Feingold and The Post and overwhelmingly voted to re-authorize the Patriot Act. In doing so, they re-authorized the dramatically expanded NSLs, which were first authorized (in expanded form) in September, 2001.
But now, as we know, the assurances given by the DOJ were completely false. As a result, when the Inspector General's Report was issued last week, the Assistant Attorney General, Richard Hertling, simultaneously sent a letter to Senators Specter and Leahy retracting the DOJ's prior statements about NSLs, and specifically retracted large parts of the November, 2005 letter sent by the DOJ designed to dispute the Post article.
That retraction letter is here (.pdf) (link fixed). This is the last paragraph:
In other words: all of those assurances we gave you in order to convince you that we were using NSLs in strict accordance with the law were false. Now that the IG Report proves that what we told you is false, we are retracting what we said, and when we get around to it, we will also correct the false testimony we gave at Congressional hearings and the false assurances we gave you in secret, classified meetings -- all of which successfully convinced you to re-authorize the Patriot Act.
It is inconceivable that these false assurances were made in good faith. They were plainly the by-product of either deliberate deceit or a reckless indifference to finding out whether those statements were true. The IG Report documents that the illegal use of NSLs was not isolated in any way, but instead, was pervasive and systematic. As the Washington Post Editorial yesterday noted:
Although the FBI itself reported to a review board a mere 26 instances in which information was improperly obtained, the real number appears to be much higher. Of just 77 files reviewed by the inspector general, 17 -- 22 percent -- revealed one or more instances in which information may have been obtained in violation of the law.
Indeed, the FBI's procedures were so slipshod, the report concludes, that it didn't even keep proper count of how many such letters were issued. The use of these letters ballooned from 8,500 in 2000 to 47,000 in 2005 -- but that "significantly understated" the real numbers, the report found.
The DOJ's assurances given to Congress were plainly given without the slightest effort to determine whether those assurances were true. The DOJ simply denied that there was any wrongdoing with regard to NSLs but had they bothered to investigate the Post's claims even slightly -- rather than just reflexively denying any wrongdoing -- they would have discovered what the IG discovered.
But they were only interested in one goal: swindling the Congress into re-authorizing the Patriot Act, and so they repeatedly sought to assure Congress that concerns over the NSLs were unfounded even though they either (a) had no idea whether that was true or (b) knew that it was false. If we tolerate DOJ officials falsely denying accurate press reports of illegal surveillance -- all in order to induce Congress to enact legislation vesting vast powers of surveillance against U.S. citizens -- what don't we tolerate?
And this is hardly the first time this has happened. When Alberto Gonazles first testified to the Senate Judiciary Committee about the NSA scandal, he repeatedly made false and misleading statements which he was subsequently compelled to retract. Less than a month after he testified, he was forced to send a letter retracting multiple key assurances he gave the Committee once it became apparent that those assurances were false.
This is what the Bush DOJ has been doing for years. Reports of improprieties, illegalities, abuse, and related types of wrongdoing emerge with regard to how the President uses powers which are exercised in secret and with no oversight. The DOJ immediately and in every case defends the administration with the use of trite and empty buzzphrases about all the great and elaborate safeguards which exist and assuring everyone that there is no abuse and no wrongdoing. And in those rare cases when those assurances are investigated, they turn out to be false.
All of these NSL abuses were occurring in plain sight, right under the noses of the DOJ officials who publicly and privately assured Congress they were not occurring. They misled Congress and the public on a matter of the highest importance. A rotted and corrupt Justice Department is, of course, but one outgrowth of an administration which has existed outside of the law for virtually its entire tenure, but when instances of deceit are this flagrant, there just must be genuine consequences for the wrongdoers.
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I will be on the Sam Seder Show on Air America this morning at 11:05 a.m. EST. Local station listings and live audio feed can be found here.