Friday, March 09, 2007

Justice Department Report To Reveal That FBI Violated Requirements of Patriot Act Program Allowing Them To Obtain Private Records

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The news that the FBI has been ignoring its own guidelines and Justice Department requirements for issuing National Security Letters is really three stories, or three aspects of one story.

Lara Jakes Jordan has the first two:

The FBI improperly and, in some cases, illegally used the USA Patriot Act to secretly obtain personal information about people in the United States, a Justice Department audit concluded Friday.

And for three years the FBI has underreported to Congress how often it forced businesses to turn over the customer data, the audit found.

Glenn Greenwald has the third:

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.
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.
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.

A diarist at Daily Kos (to whom Glenn links in an Update to his post) points out that it's actually Pres. Bush who is required to report to Congress on the FBI's issuance of NSLs, not the FBI. And that's exactly what this Justice Department audit report is: the Chief Executive's oversight report to Congress. But that is not necessarily good news, because we only know what is in the report; we don't know what is not in it:

Glenn is focused on the fact that the FBI violated the provisions of the Patriot Act in its handling of the NSLs. He is, however, incorrect when he links this to the signing statement. The sections referenced in the signing statement are about reporting by the Executive Branch to committees of Congress, not about the FBI's actions.

Here's what's really at stake. The DoJ was required by these provisions to report on calendar years 2002, 2003 and 2004 one year after the signing of the reauthorization. That reporting date? March 9, 2007. Today. The revelations in today's press are from the report Bush said he wouldn't do.

We have one of two possibilities here. Either Bush is full of it when he appends these signing statements; or, more ominously, he followed the signing statement exactly, and excluded information as he said he would.

If what's reported to us is bad enough, imagine what might not be reported. Don't you think Congress and the media should be asking the Administration what they excluded from the report? [Emphasis added.]

I think that mspicata's point is crucial, because already at least one blogger, although unequivocally faulting the FBI violations, is saying that the problems are administrative and not structural:

... [T]he reported discrepancies are inexcusable and unacceptable. Immediate steps must be taken to correct all deficiencies. The FBI has issued statements acknowledging the accuracy and fairness of the IG report. More importantly, the FBI has indicated they have taken steps and will further take action necessary to rectify reporting deficiencies. In his response, FBI Director Robert Mueller stated “We strive to exercise our authorities consistent with privacy protections and civil liberties that we are sworn to uphold. Anything less will not be tolerated. This statement is the central point in this situation. Having been a former executive in the FBI dealing with financial records and terrorist financing issues, privacy rights and civil liberties were critically important to me. On numerous occasions, I heard Director Mueller reinforce the FBI’s responsibility to protect the civil liberties of our citizenry.

The problems identified by the IG are problems of process in terms of recordkeeping and reporting, which are administrative. The process in terms of operation and use of the information has not been problematic. The IG found no deliberate or intentional misuse of authority, meaning there were no infringements on privacy rights or civil liberties. Even though recordkeeping and reporting was inadequate, actual use of information was appropriate.
Before rushing to judgment and calling for the restriction or elimination of the NSL program, critics should remember that the problem is administrative, not operational. As such, civil liberties are not at risk. The only true risk is to national security if this issue escalates as a platform to diminish or eliminate an important investigative tool.

Except that, if Pres. Bush really is doing exactly what he said he would do -- not reporting to Congress what he does not wish to report -- then violations that did go to misuse of authority would surely be the ones Bush would choose to leave out of his report to Congress.

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