It's no secret that the FBI's use of National Security Letters -- a surveillance tool that allows the FBI to gather reams of information on Americans from third-party entities (like your bank) without a warrant or without suspecting you of a crime -- have resulted in widespread abuses. All that the FBI needs to demand your private information from a third-party entity is an assertion that such information is "relevant" to a national security investigation -- and the NSLs come with an accompanying gag order that's almost impossible to challenge in court.
In 2007, an Inspector General's Report found that the FBI violated the law or its own rules in seeking Americans' private information through NSLs. A report published yesterday by the Washington Post serves as further confirmation that once you allow the government to snoop unchecked in the name of national security, that' s exactly what they're going to do:
The FBI illegally collected more than 2,000 U.S. telephone call records between 2002 and 2006 by invoking terrorism emergencies that did not exist or simply persuading phone companies to provide records, according to internal bureau memos and interviews. FBI officials issued approvals after the fact to justify their actions.
E-mails obtained by The Washington Post detail how counterterrorism officials inside FBI headquarters did not follow their own procedures that were put in place to protect civil liberties. The stream of urgent requests for phone records also overwhelmed the FBI communications analysis unit with work that ultimately was not connected to imminent threats.
Matthew Yglesias raises the rather relevant example of Martin Luther King Jr. in noting that this sort of unchecked power inevitably results in government surveillance of domestic political enemies. Steve Benen writes, "Bush administration officials used the cloak of counter-terrorism to abuse civil liberties, ignore the law, and violate Americans' privacy? Imagine that."
The problem is that neither of them note that the Obama administration has been urging passage of a PATRIOT Act renewal that leaves this system, with its complete lack of accountability, largely in place. This is despite the fact that, as Julian Sanchez has noted, Obama explicitly promised as a candidate that there would be “no more National Security Letters to spy on citizens who are not suspected of a crime.”
The Senate version of the PATRIOT Act renewal bill is the administration's preferred version -- it would change the standard to require a "written statement of specific facts showing reasonable grounds to believe that the info sought is relevant to an investigation." The House version is much stronger; it would require a "statement of specific and articulable facts showing reasonable grounds to believe the info sought i) pertains to a foreign power or AFP, ii) is relevant to the activities of a suspected AFP who is under investigation, iii) pertains to an individual in contact with or personally known to AFP."
Neither would eliminate NSLs as Obama promised, and the Senate/administration supported version makes some cosmetic changes but still allows the FBI to use NSLs for fishing expeditions -- burying analysts in mounds of data that can be counterproductive to determining which threats are real and which aren't.
Liberals aren't doing the cause of due process any favors by omitting the Obama administration's role in perpetuating a system that is likely to lead to more abuses in the future.
-- A. Serwer
