March 9, 2007

More on National Security Letters

Filed under: politics, Surveillance — ubikcan @ 11:07 am

Glenn Greenwald has a new post on the National Security Letters (NSLs) that can be secretly issued by the FBI. I’ve written about these previously here, here, and here.

Greenwald notes that when the Patriot Act was reauthorized in March of 2006, President Bush issued one of his famous “signing statements” in which he laid out how he would interpret the law. Despite some oversight requirements in the law, for example that the FBI report to Congress on how they were using their police powers, the Bush administration claimed to be exempt from these requirements.

Now the WaPo is reporting on an audit of the FBI:

The inspector general’s audit found 22 possible breaches of internal FBI and Justice Department regulations — some of which were potential violations of law — in a sampling of 293 “national security letters.”…

Fine found that FBI agents used national security letters without citing an authorized investigation, claimed “exigent” circumstances that did not exist in demanding information and did not have adequate documentation to justify the issuance of letters.

Greenwald notes these but points out that the signing statements–used by Bush to exempt himself–are the real cause of the problem:

When a country is ruled by an individual who repeatedly and openly arrogates unto himself the power to violate the law, and specifically proclaims that he is under no obligation to account to Congress or anyone else concerning the exercise of radical new surveillance powers such as NSLs, it should come as absolutely no surprise that agencies under his control freely break the law. The culture of lawlessness which the President has deliberately and continuously embraced virtually ensures, by design, that any Congressional limits on the use of executive power will be violated.

Greenwald’s conclusion is that this administration has instituted “an ideology of lawlessness” which he first discussed on January 6, 2006. This lawlessness, or putting oneself above the law (presumably in the pursuit of other goals) entails multiple forms of surveillance.

Greenwald is less clear on just why the Bush administration has done all this (it is hard to believe that it is truly and fundamentally motivated by a desire to catch terrorists given the agenda of the administration before 9/11 and their efforts to catch Bin Laden following it). the overriding impression one gets from Greenwald is that this is power for its own sake:

What we have in our Federal Government are not individual acts of law-breaking or isolated scandals of illegality, but instead, a culture and an ideology of lawlessness. It cannot be emphasized enough that since September 11, the Bush Administration has claimed the power to act without any constraints of law or checks from the Congress or the courts. Its view of its own power and governing philosophy is based upon, and perfectly encapsulated by, this single paragraph from the incomparably pernicious September 25, 2001 Memorandum, written by then-Deputy Assistant Attorney General John Yoo:

In both the War Powers Resolution and the Joint Resolution, Congress has recognized the President’s authority to use force in circumstances such as those created by the September 11 incidents. Neither statute, however, can place any limits on the President’s determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing, and nature of the response. These decisions, under our Constitution, are for the President alone to make.

Greenwald’s constant emphasis on the implications of these actions are, as always, a very timely reminder. But I do wonder if we can’t get a better explanation as to why they occur. Is it, for example, something specific to this administration, or is it something larger that is always potentially inherent in modern society today? More and more, I tend to see it as the latter.


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