In Perspective: FBI

It's only appropriate on the sixth anniversary of the 11 September 2001 terrorist attacks (see my 9/11 post) to publish a blog post about the exploitation of such a tragedy for potential political gain.

Last week, a judge ruled portions of the controversial Patriot Act unlawful and conflicting the United States Constitution.

A federal judge...struck down the parts of the recently revised USA Patriot Act that authorized the Federal Bureau of Investigation to use informal secret demands called national security letters to compel companies to provide customer records.

The law allowed the F.B.I. not only to force communications companies, including telephone and Internet providers, to turn over the records without court authorization, but also to forbid the companies to tell the customers or anyone else what they had done. Under the law, enacted last year, the ability of the courts to review challenges to the ban on disclosures was quite limited.

The judge, Victor Marrero of the Federal District Court in Manhattan, ruled that the measure violated the First Amendment and the separation of powers guarantee.

Judge Marrero said he feared that the law could be the first step in a series of intrusions into the judiciary’s role that would be “the legislative equivalent of breaking and entering, with an ominous free pass to the hijacking of constitutional values.”

According to a report from the Justice Department’s inspector general in March, the F.B.I. issued about 143,000 requests through national security letters from 2003 to 2005. The report found that the bureau had often used the letters improperly and sometimes illegally.

(Read about the FBI's illegal use of the national security letters here.)

Yesterday’s decision was a sequel to rulings by Judge Marrero in 2004 and a federal judge in Connecticut in 2005, both of which enjoined an earlier version of the law. Congress responded last year by amending the law in reauthorizing it.
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Judge Marrero used his strongest language and evocative historical analogies in criticizing the aspect of the new law that imposed restrictions on the courts’ ability to review the F.B.I.’s determinations.

(Read the decision in full.)

Tying the emotional word 'patriot' to an act that conflicts with many areas of fundamental American democratic law was a brilliant political move by the Bush administration and its Republican allies. It allowed them to label anyone who opposed the act unpatriotic, and even if they didn't label so, who's going to oppose something with the word 'patriot' in its name? That is like opposing the "Kittens are Cute Act" or the "America the Great and Victorious Act".

Its name is yet another one of those slanted catch-phrases — "war on terror", "with us or against us", "cut and run", the "surge" — under the mother of political spin-words: the "war on terror", which has entered most into the mainstream media and the consciousness of a nation, even though it's not a real war and you can't really fight 'terror', or even the intangible ideology of terrorism.

On Friday, it was revealed in a US Department of Justice (DoJ) report on the Federal Bureau of Investigation (FBI) and the use of various elements in the so-called war on terrorism that the FBI was misusing the Patriot Act and other laws — already controversial when followed appropriately — that constituted breaking the law. Although it hardly constitutes 'breaking news', the report sparked outcry on Capitol Hill (which is good, because it should).

Soon after the report, FBI Director Robert Mueller III admitted the law-breaking and took all of the blame, “Who is to be held accountable? And the answer to that is, I am to be held accountable.” he said.

The United States government — not least the FBI and CIA — breaking its own laws is nothing new, but rarely is it exposed and admitted so publicly, and rarely is it revealed by the government itself. This shows the US federal government has not lost all transparency, and these internal audits — like the one that showed the Bush administration was skewing terror figures — and reports are important to a free and democratic government. Not all hope is lost. Note: Congress had required the DoJ to file this report.

However, the story does not end with Mueller, or even the FBI.

Salon's Glenn Greenwald wrote an exceptional and extensive piece tying the FBI's misuse of Patriot Act provisions directly up to President Bush via the myriad of legislation and policies empowered by the 'war on terrorism'.

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.
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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?

The day after the revelation of this latest government fumble, Bush proclaimed himself Mr. Fix-It and said things would be worked through so this kind of misuse will not happen again — or at least people wouldn't hear about it again. He defended most all of these questionable policies, such as the 'national security letters' Greenwald wrote about, which are basically a warrant-less ticket for the FBI to do whatever it pleases in the name of 'fighting terrorism'.

Attorney General Alberto Gonzales, already up to his knees in troubles and political liability, including one relating to the politically-related firing of decent attorneys, is also implicated in this mess. Whereas Mueller is the fall guy, and Bush occupies the title of Mr. Fix-It-But-Not-Really, Gonzales is somewhere in between. His number of friends in Congress — Democrat or Republican — is dwindling. The New York Times even called for his resignation, a harshly-worded but true editorial, on Sunday (their editorials are regarded as influential, especially politically).

...[Gonzales] has never stopped being consigliere to Mr. Bush’s imperial presidency. If anyone, outside Mr. Bush’s rapidly shrinking circle of enablers, still had doubts about that, the events of last week should have erased them.

First, there was Mr. Gonzales’s lame op-ed article in USA Today trying to defend the obviously politically motivated firing of eight United States attorneys, which he dismissed as an “overblown personnel matter.” Then his inspector general exposed the way the Federal Bureau of Investigation has been abusing yet another unnecessary new power that Mr. Gonzales helped wring out of the Republican-dominated Congress in the name of fighting terrorism.

The F.B.I. has been using powers it obtained under the Patriot Act to get financial, business and telephone records of Americans by issuing tens of thousands of “national security letters,” a euphemism for warrants that are issued without any judicial review or avenue of appeal. The administration said that, as with many powers it has arrogated since the 9/11 attacks, this radical change was essential to fast and nimble antiterrorism efforts, and it promised to police the use of the letters carefully.

But like so many of the administration’s promises, this one evaporated before the ink on those letters could dry. The F.B.I. director, Robert Mueller, admitted Friday that his agency had used the new powers improperly.

Mr. Gonzales does not directly run the F.B.I., but it is part of his department and has clearly gotten the message that promises (and civil rights) are meant to be broken.

It was Mr. Gonzales, after all, who repeatedly defended Mr. Bush’s decision to authorize warrantless eavesdropping on Americans’ international calls and e-mail. He was an eager public champion of the absurd notion that as commander in chief during a time of war, Mr. Bush can ignore laws that he thinks get in his way. Mr. Gonzales was disdainful of any attempt by Congress to examine the spying program, let alone control it.

The attorney general helped formulate and later defended the policies that repudiated the Geneva Conventions in the war against terror, and that sanctioned the use of kidnapping, secret detentions, abuse and torture. He has been central to the administration’s assault on the courts, which he recently said had no right to judge national security policies, and on the constitutional separation of powers.
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The Justice Department has been shamefully indifferent to complaints of voter suppression aimed at minority voters. But it has managed to find the time to sue a group of black political leaders in Mississippi for discriminating against white voters.

We opposed Mr. Gonzales’s nomination as attorney general. His résumé was weak, centered around producing legal briefs for Mr. Bush that assured him that the law said what he wanted it to say. More than anyone in the administration, except perhaps Vice President Dick Cheney, Mr. Gonzales symbolizes Mr. Bush’s disdain for the separation of powers, civil liberties and the rule of law.

On Thursday, Senator Arlen Specter, the senior Republican on the Senate Judiciary Committee, hinted very obliquely that perhaps Mr. Gonzales’s time was up. We’re not going to be oblique. Mr. Bush should dismiss Mr. Gonzales and finally appoint an attorney general who will use the job to enforce the law and defend the Constitution.