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.

Let us begin with the fact that the Inspector General’s Office which issued this report is merely a mid-level subordinate DOJ office that reports to the Attorney General, and its conclusions (particularly its exculpatory ones) are hardly dispositive. The oversight here is not the Report itself. That is just the start. The oversight is the Congressional investigation which must follow to determine the scope of the wrongdoing and what actually motivated it.

But the good little authoritarians who always reflexively embrace every unchecked pronouncement by the Bush administration as though it is the Gospel Truth — the attribute which is, at its core, the defining one of a mindless authoritarian — are (consistent with that mindset) now running around shrilly insisting that the Leader did no real wrong, because the DOJ Report said that nothing was really done with malicious intent here. The DOJ has spoken, and that settles that.

“Dispositive” is a legal term (he’s a lawyer, after all). Basically, it means “proven beyond a reasonable doubt” or “beyond argument”. Something that’s “hardly dispositive” is unproven, and what he’s suggesting is that IG Glenn Fine’s conclusion that the FBI’s actions didn’t “manifest deliberate attempts to circumvent statutory limitations or departmental policies” isn’t necessarily true.

He’s a lawyer and I’m not, so I can go further than that and I will. The IG’s conclusion is absurd, maybe not legally absurd, but real-world absurd.

Look at the numbers: of the NSLs the IG examined, more than a quarter violated the law. Assuming that that statistic would remain accurate if all 19,000 NSLs were examined in the same way – and there’s no reason it shouldn’t since the IG’s 300 samples were taken at random – that means that 5000 NSLs contained violations of the law. Five thousand. Five thousand mistakes, five thousand ommisions, five thousand inaccuracies. Five thousand.

It’s simply not credible, on the numbers alone, that FBI clerks made 5000 “mistakes”, even granting the law was new and they weren’t trained. Twenty-five percent is an extraordinary number. The scandal over the mistakes made by FBI labs in labeling evidence was a fifth of that – less than 5%.

But if the numbers don’t convince you, look at the types of these “mistakes”.

[T]hose [FBI] offices did not even generate accurate counts of the national security letters they issued, omitting about one in five letters from the reports they sent to headquarters in Washington. Those inaccurate numbers, in turn, were used as the basis for required reports to Congress.


The report identified several instances in which the FBI used a tool known as “exigent letters” to obtain information urgently, promising that the requests would be covered later by grand jury subpoenas or national security letters. In several of those cases, the subpoenas were never sent….

The review also found several instances in which agents claimed there were exigent circumstances when none existed. The FBI recently ended the practice of using exigent letters in national security cases, officials said last night. (emphasis added)

The first is a standard trick used by a lot of law enforcement agencies, including local police departments, to hide something they don’t want known – how many times they acted on dubious information and arrested innocent people, for example, is a common one. Reports don’t get filed or disappear and are therefore never included in the official monthly or yearly stats. It’s called “killing the count”, and it’s a mechanism normally used to bury “unimportant” stats that aren’t considered germane to serious crime-fighting and might prove to be politically…uncomfortable. You don’t have to explain numbers or deny their accuracy if you keep them low enough that they don’t send up Red Flags. And if perchance somebody does catch on, you can always claim it was “a clerical error”, which is precisely what the FBI is claiming and the IG is confirming. I don’t buy it.

The second is simply an addition to already existing protocols. There’s nothing odd or new about requesting permission for a search, say, or to tap some perp’s phone, and then doing it before the warrant comes through. In most cases, the warrant comes first but officers and agents both know that they will always be able to find a law-and-order judge who will date the warrant with the time it was requested rather than the time he actually got around to signing it, which might be a day or two later. Cops – too many cops – consider this a “technical” breach of the law that isn’t terribly significant and isn’t likely to be found out, so there’s no real threat that the case will be thrown out of court because of it. It happens, though, and when it does, they scream about how the justice system “ties their hands” and about how it lets scumbags off on “technicalities”.

The only real difference with NSLs is that the PATRIOT Act allows them to take the action first and get the “technicality” taken care of later. But the idea that they would be so blase about covering their asses that they “forgot” to send the subpoenas or whatever is nonsense. These days, almost all FBI agents have had legal training, many have completed law school and passed the bar, and they all have degrees in criminal justice, some of them advanced. If they didn’t send the subpoenas, it was because they didn’t think they needed to because Republicans in the Bush Administration and the Congress were never going to challenge them – as, in fact, they didn’t. Subpoenas and warrants are fundamental legal instruments. They’re not arcane, complex, or esoteric.

But it’s the third category that gives the game away. There is NO POSSIBLE EXCUSE for lying in a legal document. To claim that an emergency exists when it clearly doesn’t is the same as making up a story to justify getting a search warrant. It’s a crime. How the IG could possibly explain those away as “mistakes” is beyond my poor inventive capabilities.

I don’t think anyone with any knowledge of how law enforcement types actually think and behave in the real world could fail to recognize what’s been going on here. The explanation is simple: the Republican Congress gave the FBI an open-ended tool with few controls and little or no oversight, and they used it that way. They used it to get information they thought they needed more easily than they could get it any other way. There’s no mystery to this, and convoluted explanations involving mistakes and unintentional misuse may properly be considered part of a cover-up. They knew exactly what they were doing.

The truth is that too many cops and field agents think of the law the same way the Bush Administration does: as an unreasonable annoyance/obstacle to be circumvented whenever the opportunity arises. They’re not particularly concerned about criminals’ rights and many actively resent the whole concept that they have any. It comes with the territory. Their job, as they see it, isn’t to “uphold the law”, it’s to get scumbags off the street any way they can.

That’s not necessarily bad. It may even be necessary. But it does mean you can’t give them this kind of power and expect them to use it sparingly. They will use whatever you give them to get what they want, and – especially without legal restrictions or oversight – push that envelope until it rips into a thousand little pieces. To believe anything else is either hopelessly naive or just plain stoopid. You’d be expecting them to go against the very parts of themselves that attracted them to law enforcement in the first place. Even otherwise good cops who follow the law and cut very few corners will be tempted to go overboard when they’re handed a tool like that.

So don’t. Take it away. And don’t be fooled when Mueller says he’ll “correct” the abuses. He won’t. The tool is too seductive.


One response to “The FBI and NSLs: Not “Accidental”

  1. Pingback: The FBI and NSLs 2: The "Accident" Excuse Unravels «

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