National security is a tough business. How do we preserve our ability to fight our nation's enemies and disrupt their planned attacks while also preserving the rights and freedoms that we hold dear? It's a tough balancing act. One piece of wisdom from our founding fathers, though, is the concept of checks and balances; the idea that different branches of government should oversee each other, rather than each policing itself. The results of the Patriot Act, enacted shortly after 9-11, demonstrate why this is a good idea.
First, you have to understand the normal procedure for obtaining a search warrant, which is generally required before going into someone's home to collect evidence, obtaining records of their business dealings from third parties, or placing a wiretap on their telephone line. The police normally do some investigation first, in ways that do not require intrusion on someone's rights, in order to get some idea who they can reasonably suspect committed the crime. If they don't get enough for a conviction from this, they try to figure out what evidence might exist that they don't have, and where they can find it.
They fill out a form indicating where they want to search, including their supporting evidence, witness statements, and what they expect to find and seize in the search, then submit that form to a judge. The judge looks over their information and makes sure that they have enough evidence to meet "probable cause"; if they do, he signs the warrant and the police go collect the evidence.
In practice, judges rarely say no, but the simple act of preparing their evidence for review by a mostly-independent third party means that it doesn't get done casually; and the defendent in any resulting case will have a record of what the police thought they had at the time of the search and can challenge the warrant if it does not meet the probable cause standard.
The Patriot Act changed the rules, at least for terrorism investigations. The FBI are now allowed to write a "National Security Letter" when requesting business records. The letter does not go before a judge. It imposes a gag rule upon the recipient, preventing them from informing anyone of the request (which also has the practical effect of preventing them from obtaining legal assistance). It can request virtually any information, up to and including a list of which library books you have read or websites you have visited. There is no requirement to list the evidence used to generate the letter, making the request difficult to challenge in court later.
The basic idea is to treat terrorists like spies -- both are agents of foreign powers rather than individuals.
Now, we're learning that the FBI has systematically abused that process:
In his first report on NSLs, released in March 2007, Inspector General
Glenn Fine inspected a few hundred NSLs issued by the FBI between 2003
and 2005 and found dozens that had been issued "improperly." Given that
a total of 143,000 NSLs were issued during that period, the results
suggested that hundreds, and probably thousands, of improper NSLs were
issued from 2003 to 2005.
That's a lot of terrorists. But are they really all terrorists?
For example, in last year's report, the inspector general recommended
that the FBI implement a system to tag information derived from
national security letters so they could be distinguished from data
gathered using ordinary investigative activities. That would assist FBI
agents in ensuring that information ostensibly obtained for
anti-terrorism or counter-espionage purposes is not used for ordinary
criminal investigations. But an FBI working group concluded that such
tagging would be burdensome and would provide few privacy benefits.
Last week's report disagreed, urging the FBI to "give additional
consideration" to the issue.
This is important: the FBI can issue broad NSLs to obtain vast amounts of information, which they DO NOT TAG in any way to indicate the legal process they used to collect it. They can then use that information to prosecute ordinary people for ordinary crimes -- violating their Constitutional rights.
These results suggest that procedural reforms within the FBI will never
be sufficient to ensure that the law is followed. FBI personnel will
inevitably be biased in favor of their fellow FBI officials. The
creation of the FBI's Office of Integrity and Compliance is especially
ironic because the federal government already has
an "integrity and compliance" unit. It's called the judicial branch.
Rather than trying to create a separate system of checks and balances
within the FBI, the feds should take advantage of the system of checks
and balances we already have. Administrative reforms are no substitute
for genuine judicial oversight. Regardless of the number of layers of
review, the sophistication of the FBI's tracking system, or the amount
of time its personnel spend in training, there will always be a
temptation to cut corners unless the issuance of NSLs is subject to
scrutiny from outside the FBI hierarchy.
We need those checks and balances back in place, especially when the FBI is trying to cover up their mistakes. No one can be trusted to police themselves when the consequence is the loss of privacy rights for everyone. The incentive structure is simply wrong.
This entry was published Mon Mar 24 09:37:13 CDT 2008 by TriggerFinger
and last updated 2008-03-24 09:37:13.0.