Under Scrutiny

On March 8 when the Justice Department's Inspector General, Glenn A. Fine, issued a damning 126-page report detailing massive wholesale recent violations in FBI surveillance on American citizens, Department higher-ups moved quickly to limit the damage.

Fine's audit showed that for the last three years, and using the USA Patriot Act as cover, the FBI has neglected to tell Congress or anyone else how often or to what extent it used so-called "national security letters" to demand that phone companies, banks, credit bureaus and internet providers surrender detailed customer data to the Bureau's scrutiny. These letters are administrative subpoenas that do not require a judge's approval.

The report also showed that in many cases, FBI agents requested data from companies without any authorization from their superiors whatsoever.

FBI Director Robert Mueller immediately apologized to Americans in general and Congress in particular, but at the same time tried to characterize the gross violations of citizens' privacy as systemic glitches. He said many of the "problems" were being "fixed," that the Bureau was building a better internal data collection system (i.e., blaming the computer programmer) and training employees on the limits of their authority. But he went on to say he was personally responsible for the "mistakes" in an attempt to defuse Congressional anger.

"(T)his was very upsetting to me," Attorney-General Alberto Gonzales assured incensed members of Congress, particularly those on the Senate Judiciary committee, adding, "And it's frustrating. We have some work to do to reassure members of Congress and the American people that we are serious about being responsible in the exercise of these (Patriot Act) authorities," Gonzales said, opting for profound understatement as the safest escape route.

However, the American Civil Liberties Union is letting neither Gonzales nor Mueller off the hook so easily. The day Fine's report was released, the ACLU responded on its website that "Claims that the FBI’s reported Patriot Act abuses were the 'unintentional' result of outmoded computer systems and human error are not credible," and cited evidence showing that agents contracted with phone companies to release customer records to the Bureau, then later tried to cover up those illegal requests.

"The report also shows that the FBI is issuing hundreds of thousands more National Security Letters than ever imagined," the ACLU response continues, "and that tracking of the NSLs is sloppy, resulting in thousands of innocent Americans being entered into databases" that are shared among numerous intelligence agencies such as the CIA and the Drug Enforcement Administration, and even with some foreign governments.

"It seems that every time the American people entrust the Bush administration with some new power, it not only abuses that power but also seizes additional powers without our knowledge," said ACLU Executive Director Anthony D. Romero. "It is long past time for Congress to take back the civil liberties of the American people and right these wrongs. The Attorney General and the FBI are part of the problem and cannot be trusted to be the only solution."

National Security Letters: How They Work

The Patriot Act includes a "National Security Letter" provision that authorizes the FBI to demand records from any business, credit bureau or agency such as a school without court approval. Anyone receiving one of these letters is at the same time forbidden to tell anyone about it, and required to turn over personal information in secret.

The Patriot Act, authorized in 2001, has relaxed formerly stringent restrictions on the FBI's use of this power, and the number of NSL's issued each year has increased astronomically. According to the ACLU, "While reports previously indicated a hundred-fold increase to 30,000 NSLs issued annually, the extraordinary March 2007 report from the Justice Department's own Inspector General puts the actual number at over 143,000 NSLs issued between 2003 and 2005. This was the same investigation which also found serious FBI abuses of regulations and numerous potential violations of the law."

The ACLU challenged the particular Patriot Act statute dealing with national security letters in court with two cases, one involving an internet service provider, and in another representing a group of concerned librarians. In both cases, the judges ruled that the gag rule preventing business and agencies from telling their clients they were the subjects of investigation were unconstitutional. But the abuses continue, and will continue unless the FBI and Gonzales's Justice Department are forced to back off. Repeal of the Patriot Act seems in order.

Even if the FBI scales back its use of these secret letters, they will, unless the law is abolished or amended, still be able to snoop into your most private affairs if you are a "person of interest" to them. They can monitor the numbers of every person you call or who calls you, find out who you owe money to and how much, compile a record of every internet site you visit as well as listing all your incoming and outgoing e-mails, scrutinize your checking account activity, and even determine if you've taken any "subversive" university courses or checked out a copy of of Osama bin Laden's 1996 "Declaration of War Against the Americans Occupying the Land of the Two Holy Places" from your local library.

"It's up to Congress to end these abuses as soon as possible," said Sen. Edward M. Kennedy, the long-time Massachusetts Democrat who sits on the Senate Judiciary Committee. "The Patriot Act was never intended to allow the Bush administration to violate fundamental constitutional rights."

And Representative Peter Hoekstra of Michigan, the ranking Republican member on the House Intelligence Committee, said that Inspector General Fine's audit indicates "a major failure by Justice to uphold the law," adding, "If the Justice Department is going to enforce the law, it must follow it as well."

Hoekstra's words are a reminder of the pointed observation made by the long-time veteran of the Soviet Gulag concentration camps, Aleksandr Solzhenitsyn, who once said that "Any country that doesn't follow it's own laws is doomed."