One year ago, the Inspector General's Office -- the independent audit arm of the DOJ -- issued a lengthy report (.pdf) detailing that the FBI, for the years 2003-2005, had used "National Security Letters" (NSLs) to gather information on thousands of Americans in violation of the law. Pursuant to the Patriot Act, "NSLs" permit the FBI and other federal agencies to obtain all sorts of invasive information from telecoms, Internet and email providers, even health care providers and the like without any judicial warrants or any other oversight of any kind.
Last year's IG report documented thousands of cases where the FBI abused the extraordinary power of NSLs -- the FBI made false statements to obtain the information, did so where the information had nothing to do with any pending investigations, obtained far more data than even The Patriot Act allows, etc. The Report emphasized that there were likely many more abuses it was unable to document because the FBI had failed to comply with Congressional record-keeping and reporting requirements (requirements which President Bush, in a signing statement issued when he signed the Patriot Act, declared he had no obligation to follow). The information about Americans obtained by the FBI through these NSLs is stored permanently on vast federal data bases which tens of thousands of people both in the public and private sector can access.
A new report to be released this week by the IG, as confirmed yesterday by FBI Director Robert Mueller, details that these abuses continued unabated throughout 2006 as well. It seems there are a few brand new lessons that we can perhaps draw from these revelations:
(1) If unchecked power is vested in government officials, they're going to abuse that power;
(2) If government officials exercise power without real oversight from other branches, they're going to break the law and then lie about it, falsely denying that they're done so, insisting instead that they're only using their powers to Protect Us;
(3) Allowing government officials to engage in surveillance on American citizens with no warrant requirement ensures that surveillance will be used for improper ends, against innocent Americans.
Who could have guessed? How come nobody warned us about the dangers of "unchecked government power" and the need for checks and balances?
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Examining what the Bush administration and Congress said about concerns over NSL abuses -- prior to the time the IG Report revealed the truth -- is highly instructive. Maybe there are some lessons to be drawn when it comes to current concerns over granting more unchecked spying powers -- such as, say, the ability to eavesdrop on Americans' conversations and read their emails without warrants.
Ever since the Patriot Act was enacted, Russ Feingold had been almost single-handedly (at least among members of Congress) trying to warn of the potential for abuse of NSLs. Finally, a couple of months prior to the time the Patriot Act was to be renewed in early 2006, Feingold got some help in his crusade, when The Washington Post's Barton Gellman published a superb investigative article which detailed the FBI's increasingly frequent and broad use of NSLs, and surveyed the obvious dangers from these unchecked surveillance instruments.
What did the Bush administration and their Congressional enablers -- desperate to have the Patriot Act renewed without change -- do in response to the Post report? They just lied, emphatically denying that there was any real abuse of NSLs and insisting that the Feingold/Gellman concerns were exaggerated hysteria. That hysteria, they argued, could not possibly justify limiting the powers of the Patriot Act or placing checks on NSLs because the need to stop The Terrorists was far more important, and besides, there was no real evidence that NSLs were being improperly employed.
Then-Judiciary Committee Chairman Arlen Specter wrote an extraordinary letter (.pdf) -- two months after publication of the Post article -- citing the special knowledge and expertise he has as Chairman, insisting that there was "no evidence" that NSLs were being abused and thus demanding full renewal of the Patriot Act. Here's what Specter -- at exactly the time the FBI was massively abusing its NSL powers -- wrote; just marvel at this:
Identically, the DOJ -- after the Post article on NSLs was published -- repeatedly insisted to Congress when it was debating re-authorization of the Patriot Act in November, 2005, that the claims in the Post story about NSL abuses were false. As but one example, the DOJ sent a letter, from Assistant Attorney General William Moschella to House Judiciary Committee Chair Jim Sensenbrenner, accusing the Post of presenting a "materially misleading portrayal" of the FBI's use of NSLs.
As a result of the vehement denials of abuse by the DOJ and Chairman Specter, the Congress -- a few months later -- overwhelmingly renewed the Patriot Act, complete with the same unchecked NSL powers. A year later, the IG Report was issued documenting that the abuses which the DOJ and Specter vehemently denied were, in fact, massive, widespread, and perpetrated over a period of three years. Yesterday, we learned that these abuses extended unabated into a fourth year (2006).
When the IG Report was issued last year detailing the NSL abuses, this is what The Washington Post reported about prior DOJ denials:
The findings by Inspector General Glenn A. Fine were so at odds with previous assertions by the Bush administration that Capitol Hill was peppered yesterday with retraction letters from the Justice Department attempting to correct statements in earlier testimony and briefings. [AG Alberto] Gonzales and other officials had repeatedly portrayed national security letters as a well-regulated tool necessary for the prevention of terrorist attacks.
But by that time, it was too late and it no longer mattered. Those false denials to the public by the DOJ and Specter gave Congress the cover it wanted to renew the NSL powers under the Patriot Act. Today, of course, we hear that there is no need to worry at all about warrantless surveillance because the Bush administration and Jay Rockefeller assure us that it is "a well-regulated tool necessary for the prevention of terrorist attacks."
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Apparently, as it turns out, the mere fact that government officials -- even the really upstanding ones in the Bush administration who Fight the Terrorists and the independent, trustworthy U.S. Senators like Arlen Specter -- deny wrongdoing and assure us that their powers are being exercised in secret only for our own Good -- to Protect Us -- doesn't actually mean that this is true. Maybe the only way to ensure that vast surveillance powers aren't abused is to have something like an independent check on how those powers are exercised -- a check from, say, one of the branches other than the one exercising those powers.
It's understandable that our Congress hasn't yet decided that this is necessary because the whole "checks-and-balances" concept is quite new, just a couple hundred years old:
TO WHAT expedient, then, shall we finally resort, for maintaining in practice the necessary partition of power among the several departments, as laid down in the Constitution? The only answer that can be given is, that as all these exterior provisions are found to be inadequate, the defect must be supplied, by so contriving the interior structure of the government as that its several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places
And then there was this new exotic theory that recently emerged:
I shall undertake, in the next place, to show that unless these departments be so far connected and blended as to give to each a constitutional control over the others, the degree of separation which the maxim requires as essential to a free government, can never in practice be duly maintained.
After the IG published its March, 2007 Report detailing the FBI's abuses of the NSLs, all sorts of dramatic speeches were made in Congress. This was all outrageous, a horrendous abuse of power, something that would not be tolerated!
Five months later, in August, 2007, the same Congress passed the Protect America Act, which gave the President vast new powers to spy on the telephone calls and emails of Americans without warrants or any oversight. This week or next, they're going to make those same powers permanent, while killing the only remaining mechanism for finding out how the Bush administration for years secretly exercised those unchecked spying powers -- the pending telecom lawsuits.
At some point -- many, many years from now -- there will be some report issued by an executive agency or a Congressional Committee finally describing the nature of the illegal spying programs implemented by the Bush administration and detailing all of the abuses. And the same members of Congress who looked the other way and then voted to legalize these programs will express all kinds of outrage and surprise. If we vest unchecked powers in government officials to spy on Americans, they'll abuse those powers, all while falsely denying that they're doing so? Who could have known?