When the FBI says 'trust us'

Geoffrey Stone
The Guardian
Mar. 12, 2007

One reason the Bush administration has fared so poorly over the past several years is its obsessive fear of public accountability, separation of powers and checks and balances. From its secret prisons to its classified torture memos, from its clandestine authorization of NSA spying to its efforts to deny the detainees at Guantanamo Bay any access to the writ of habeas corpus, the Bush administration has entered one long plea of "trust us". President Bush is, after all, "the decider".

As the Framers of the US Constitution well understood, such an approach to governance is a recipe for disaster. A recently-released Justice Department audit of the FBI's use of PATRIOT Act authority is the latest example of the consequences that accompany the "trust us" theory of governance.

Enacted only weeks after 9/11, the PATRIOT Act, among other things, empowered the FBI in the course of terrorism investigations to issue "national security letters" (NSLs), which can be used to force businesses, universities, telephone companies and other organizations to turn over email, telephone, credit card, banking, educational, library, medical and other personal and financial information to the FBI.

Civil libertarians objected that this procedure authorized the FBI to invade legitimate private interests without any judicial supervision. The Bush administration, however, insisted, as always, on the autonomy of the executive branch. It promised that it would institute internal FBI safeguards to ensure that this authority was not abused. Judicial oversight, it explained, was a bother and, in any event, unnecessary.

The Justice Department's audit of the NSL program reveals, once again, the difference between government by executive decree and government by checks and balances. From 2003 to 2005, the FBI issued more than 140,000 NSL requests. Although the FBI is required by law to report these requests to Congress, the audit revealed that over the past three years the FBI underreported the number of national security letters it had issued by more than 20%.

Even more shocking, over the past three years the FBI reported a total of only 26 instances in which it had violated the guidelines for the issuance and use of national security letters. But when the Justice Department independently audited the FBI's records, it found violations - not reported by the FBI - in 22 of the 293 national security letters it examined. Thus, roughly 7% of the national security letters - approximately 10,000 - were issued unlawfully. In effect, then, the FBI had self-reported fewer than 1% of its own violations.

These violations run the gamut from improper requests for NSLs, to unauthorized collection of data, to unlawful authorization of NSLs. Some of these errors were made by the FBI, others were made by the third-party recipients of the NSLs. Most of these errors were no doubt unintentional. They were due to inadequate guidelines, confusion about the standards and reporting requirements, typographical errors that resulted in information being obtained about the wrong people, and the like.

But none of that is an excuse. For the government to gather private information about individuals for use in terrorism investigations is a serious business. The failure to institute appropriate guidelines, standards, procedures and safeguards is precisely why public accountability, separation of powers and checks and balances are important. What this blunder of executive branch arrogance proves once again is clear - "trust us" is not how a well-functioning democracy operates.