Is the FBI abusing a(nother) PATRIOT provision?
This month, a government report revealed that the FBI's extrajudicial demands for information were being overused and under-recorded. And in a half-defense that should warm any libertarian's heart, bureaucrats responded by falling over one another to affirm, in loud defiance, the prodigious scope of government incompetence.
The FBI was already hip to "deficiencies" in the system before the report hit the presses, FBI Director Robert Mueller insists in an addendum to the report (pdf), while thanking the Inspector General for finding a pile more. Embattled Attorney General Alberto Gonzales claims that "questionable judgment" and "lack of attention" are to blame, "not intentional wrongdoing." The agency's defenders now claim that it's not brutish, just bungling; mistakes were made, but hearts are pure.
There is little reason to oppose this version of events, and the history of the humble National Security Letter is a perfect example of government barreling dumbly toward power. The letters' provenance can be traced to a financial privacy law in 1978. Congress didn't want the law to stand in the way of FBI investigations of foreign agents, so it carved out an exception for very narrow cases. In 1986, in an attempt to make it easier for the FBI to obtain the same information, Congress amended the law and created the National Security Letter. The same year, Congress gave the FBI the power to request the phone records of foreign agents.
In 2001, Section 505 of the PATRIOT Act swept away the "foreigner" bit; subjects just had to be suspected of involvement in foreign terrorism. Suddenly, any FBI field supervisor could send them out, and the men and women who received them were required to keep silent. Next to go, in 2004, was the "financial institution" caveat. Congress made the meaning of the term elastic, allowing the FBI to subpoena records from a broad swath of businesses.
In 20 years, then, the National Security Letter went from a way to dig up foreigners' financial information to a way to drum up locals' library lists. The Inspector General's report was an attempt to find out what happens when you give an investigative agency broad power to demand information without a search warrant.
What happens, evidently, is government uses that power. Issuance of the letters has spiked "dramatically" since PATRIOT went into play, and the majority of letters now target "U.S. persons"-not foreigners. According to its own database, the FBI sent out at least 8,500 letters in 2000. By 2003, the number was 39,000. By 2004, 56,000. And all of those numbers, the report notes dryly, "understate the total number of national security letter requests."
The agency seems rather less enthused about data keeping than it does letter sending, and its own database is a black hole. The Inspector General's Office reviewed 77 files and 293 letters, then compared them with the FBI database. It found 22 percent more demands than were ever recorded. Of the entries that were recorded, 12 percent stated that the target was a foreigner when he or she was in fact American.
The FBI is also supposed to report letters suspected of being improperly or illegal issued. Between 2003 and 2005, it reported 26 such instances. In the 77 files the Inspector General reviewed, a small slice of the whole, auditors found 22. Given the sample size, this suggests thousands-not dozens-of extralegal demands for information.
Many thousands of letters will go un-reviewed, and the report stands as a litany of unknowns. It thus adds remarkably little to a debate already focused on the merits and drawbacks of government secrecy. The agency, and President Bush, claim that the letters are indispensable to defusing terrorism-an assertion agency defenders will have to take on faith, and civil libertarians will continue to challenge. The agency, and the report noting its failures, claim the inaccuracies are the result of human error, not intentional wrongdoing, which the agency's defenders will also take on faith, and the American Civil Liberties Union deems spurious.
The ACLU puts forward several arguments for why we shouldn't swallow this latest incompetence dodge. What it doesn't do is explain why anyone worried about the letters should focus primarily on intentions; why a profusion of typos has been allowed to become a defense of warrantless searches rather than an indictment of them. Whether the mistakes were malicious or simply mindless, the profusion of administrative error suggests that PATRIOT was irresponsible.
As the report limns the banality of error, it's impossible not to think of poor Mr. Buttle, the unfortunate family man of Terry Gilliam's Brazil, killed off, thanks to a typo, in place of accused terrorist Tuttle. That a keystroke can lead to abuse doesn't say much for the newly decentralized power to fish for information. Whether individuals were targeted maliciously or not, the FBI has clearly primed the ground for abuse.
Bureaucrats will continue to insist that National Security Letters are crucial to fighting terror, and that the power to issue directives simply demands better bookkeeping, not a rollback of actual power. But as the FBI promises to fix itself, even its promises of reform start to sound more and more like a government directive we've all heard too much of recently: Just Trust Us.
Kerry Howley is an associate editor of Reason.