Daily Archives: March 12, 2007

The FBI and NSLs: Not “Accidental”

The DoJ IG’s report has ignited a sort of firestorm both in the mainstream press and in Congress. Although it hasn’t yet reached the stage of the Justice 8 Purge, the FBI’s “misuse” of NSLs has excited widespread condemnation, an abject apology from FBI Director Robert Mueller, and a Congressional investigation. The issues, however, as Glenn Greenwald points out in this post, are just as serious, maybe more so.

In those isolated cases where we learn about what the administration has been doing in secret, or where Congress pretends to demand information, the administration refuses to provide any actual information (see, e.g., the NSA scandal ). Instead, they simply issue boilerplate assurances that the law is being complied with, that the powers are being exercised responsibly and properly, that there is no abuse, and that they have created ample “safeguards” (always within the Executive Branch) to ensure that no abuse occurs. Whatever isolated instances of abuse or impropriety end up being leaked are dismissed away as pure aberrations, the work of bad apples, and they profess how gravely concerned they are about such abuses and assure us that they are working diligently to ensure they never occur again.

And that is always the end of the story. No claims by the Bush administration have been meaningfully investigated because the authoritarian sickness that has governed our country has meant that there is blind faith in the representations made by the President, with no corroboration or investigation needed.

In the case of the NSLs, for instance, the DOJ — after the Post article on NSLs was published — repeatedly insisted to Congress when it was debating re-authorization of the Patriot Act in November, 2005, that the claims in the Post story were false. As but one example, the DOJ sent a letter, from Assistant Attorney General William Moschella to House Judiciary Committee Chair Jim Sensenbrenner, accusing the Post of presenting a “materially misleading portrayal” of the FBI’s use of national security letters (I am attempting to find that original Moschella letter; if you find it online, please leave the link in comments or by e-mail).

Obviously (as even the DOJ is now being forced to acknowledge), the attacks on the Post article by the DOJ were simply false. If anything, the Post article under-stated the problems with the NSLs. The DOJ simply gave false assurances to Congress that there were no problems with the FBI’s use of NSLs and assured Congress that all regulations and laws were being complied with. Those claims were lies, designed to steamroll over concerns about the NSLs and induce the Congress to re-authorize the Patriot Act, which it did.

US Asst AG Richard Hertling has now sent Sens Patrick Leahy and Arlen Specter a letter – get this – retracting his previous letters of assurance that all was well. Glenn quotes from the letter and then translates what it means:

In other words: all of those assurances we gave you in order to convince you that we were using NSLs in strict accordance with the law were false. Now that the IG Report proves that what we told you is false, we are retracting what we said, and when we get around to it, we will also correct the false testimony we gave at Congressional hearings and the false assurances we gave you in secret, classified meetings — all of which successfully convinced you to re-authorize the Patriot Act.

Greenwald is properly sarcastic as he dismisses the DOJ’s incredible response, a Lost in Space mea culpa in the tone of a high school sophomore apologizing to a teacher for copying the wrong citation in his term paper – “Too bad but it’s no big fucking deal, chief, so chill out. At least I did the damn thing.”

But there’s a problem just as big that Glenn (so far) only hints at.

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