"Mistakes were made": The FBI's Unlawful Privacy Abuses

Recent revelations about significant deficiencies in the FBI's bungling of security investigations of U.S. citizens under the Patriot Act suggests that a great deal more is involved than just isolated instances of negligence resulting in occasional invasions of privacy.

On Tuesday, FBI Director Robert Mueller admitted to the FBI's failure to abide by legal requirements laid out under the Patriot Act regarding the use of national security letters (NSLs) and intelligence surveillance warrants.

Earlier this month, the Department of Justice released two reports - one on the FBI's use of NSLs, and the other on the FBI's obtainment of business records - severely criticizing the FBI's abuse of the law. The NSL report blasted the FBI for failing to report to Congress on its use of NSLs, as it is required to do under the 2005 Patriot Reauthorization Act. Of the 143,000 NSL requests issued between 2003-2005, thousands of NSLs were never reported to Congress.

Interestingly, when Congress imposed this reporting requirement upon the FBI in 2005, the Bush administration staunchly opposed the requirement, citing instead the need to withhold information from Congress that might "impair foreign relations, national security, the deliberative process of the executive, or the performance of the executive's constitutional duties." It appears that Congress' efforts to impose oversight over the FBI were in vain. The executive branch never intended to respect the law, but per its usual course of action, has chosen to dilute the law, in letter and in spirit.

In addition to its failure to fulfill its reporting requirements, the FBI also, according to the report:

• Requested information exceeding the scope of the agency's authority under the Patriot Act.
• Issued NSLs that were not tied to any ongoing investigation (under the Patriot Act, the NSLs must be "relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities").
• Issued "exigent letters" to telephone companies, rather than NSLs, that were signed by people not authorized to sign NSLs. In other words, the FBI went around the law. When it could not legally issue NSLs, it issued "exigent letters" instead, thereby failing to follow the processes required for obtaining private information about individuals. This resulted in telephone companies handing over information about individuals to the FBI before the proper NSLs and subpoenaes had been approved.

In testimony before the House last week, Inspector General Glenn A. Fine attributed the administration's abuse of the law to "mistakes, carelessness, confusion, sloppiness, lack of training, lack of adequate guidance and lack of adequate oversight."

But something more than just simple "mistakes" and reporting deficiencies seems to be at work here. What the scope and extent of the abuses suggest is that when legal requirements inconveniently stand in the way of the government's war on terrorism, the current administration chooses not to take the law seriously.

When Bush swore to defend and uphold the Constitution, he could only have meant that he would not let that revered document stand in his way of expanding his powers. Other examples of the administration's irreverence of the law include:

• The CIA's illegal rendition to torture program;
• Infringement upon, and censorship of, free speech of anti-Bush protesters;
• Unlawful arrests, indefinite detentions, and disregard of the right to habeas corpus of Guantanamo detainees;
• Illegal spying on Americans by the National Security Agency; and
• Presidential signing statements that are issued, not to aid in interpretation of Congressional legislation, but rather, to override it.

Unfortunately, such blatant disregard for the law permeates the executive branch, seemingly, at all levels. Although FBI Director Mueller and Attorney General Alberto Gonzales (who oversees the FBI) have both expressed disappointment at the agency's failures to abide by the law, they have also indicated that they intend to continue using NSLs, despite their fundamental flaws. Mueller admitted that "mistakes were made," but in the same breath called the NSLs the "bread and butter" of the FBI's investigations, labelling them "absolutely essential" in helping the government to obtain information. What makes the NSLs so valuable to the administration is the fact that they can be, and have been, obtained illegally and without adequate privacy protections. Take away the FBI's ability to obtain information in an unlawful manner, and the FBI's surveillance program will be significantly curtailed, much to the chagrin of some members of this administration.

Given the cavalier "anything goes" mentality held by those responsible for combatting terrorism, tinkering with the language of the law to try to prevent further abuses will not be enough. The Bush Administration's response to all of this is not to address the problems inherent in the secret surveillance program, but rather, to continue engaging in injudicious surveillance and finding new ways to sidestep legal requirements. Indeed, the administration's approach has always been to undermine the rule of law to the point of ineffectuality.

How many more times will we be told that we must concede our fundamental liberties in the name of an undefined "war against terrorism", that the law has once again been ignored, that "mistakes were made"?