2013-06-19T10:22:38-04:00 Emily Berman http://www.huffingtonpost.com/author/index.php?author=emily-berman Copyright 2008, HuffingtonPost.com, Inc. HuffingtonPost Blogger Feed for Emily Berman Good old fashioned elbow grease. tag:www.huffingtonpost.com,2011:/theblog//3.881602 2011-06-22T10:44:17-04:00 2011-08-22T05:12:02-04:00

Emily Berman http://www.huffingtonpost.com/emily-berman/ according to the New York Times, the FBI is once again poised to extend its authorities by issuing a new version of the rules governing its domestic investigative activity. The changes represent another significant and troubling expansion of power, approved not by Congress or the Attorney General, but apparently by the Bureau itself.

Modifications to the FBI's rules governing agents' undisclosed participation in groups, such as religious congregations or political activists, are perhaps the most problematic. Current rules governing the FBI's monitoring of groups already cause serious concern because they are not even public, leaving us with no idea what constraints are in place or if they are sufficient. Now, the proposed changes allow FBI agents to attend five group meetings before those rules even apply. But what of the information gathered during those five sessions? Does a list of attendees make its way into a government database? Does a political activist opposed to U.S. policy find herself on a watchlist?

New rules regarding searching commercial or law enforcement databases also seem to invite abuse. They permit agents to search these databases without making any record of the search. Will an agent be able to resist the temptation of searching for information about neighbors, ex-girlfriends, or celebrities, knowing that he will not be asked to account for the search because no record of it exists?

Agents may also search an individual's trash for the purpose of finding material that might pressure him into becoming a government informant. Reports that federal agents use potential informants' immigration status or that of their family members for this purpose are already rampant. Now, agents will also be able to threaten a husband that they will show his discarded pornography to his wife, or threaten to bring criminal charges against someone whose trash contains traces of marijuana.

The FBI should of course have the power to follow every lead. But agents can do that without using the highly intrusive tools permitted by the current rules, much less the even-more-liberal impending rules -- this is not an all or nothing issue.

An agent can respond to a tip about a suspicious-looking car with no license plate by going to look at the car to determine if it poses a threat -- such as whether it contains some sort of explosive device. The current regulations, however, would allow that agent to look at the car; follow its driver 24-hours per day documenting all of his activities; interview his neighbors under the pretext of being someone else; and send an informant into his place of worship to find out what his rabbi, priest, or imam preaches. And the new rules add to that list the ability to go through the driver's friends', coworkers', or neighbors' garbage, looking for leverage to use to get them to spy on him.

These most recent changes also raise what is perhaps a broader, more systemic concern: One can infer from the New York Times article's statement that the FBI "does not need permission to alter its manual" that the FBI itself took the lead in formulating these new rules. This is problematic.

The very purpose of this set of rules is to ensure that the FBI's investigative activities are limited in scope, never more intrusive than necessary, and subject to proper oversight. They safeguard Americans' civil liberties against law enforcement activities that, absent sufficient regulation, could result in unwarranted intrusions into people's lives. But even the most well-intentioned FBI officials are likely to craft rules that err on the side of permitting agents to act aggressively. Thus the fox is not only guarding the henhouse -- he is also determining how high the fence that surrounds it and how thick the walls will be.

A continuing trend -- one that started years ago but accelerated rapidly after 9/11 -- is to increase federal law enforcement power while cutting back oversight of how that power is used. This trend has eliminated many of the measures implemented to avoid the now notorious Hoover-era abuses resulting from the consolidation of too much power within a domestic intelligence agency. In light of these many recent changes, it is time that Congress and the American people take a closer look at the FBI's investigative powers, consider whether they may have grown too broad, and act to re-establish meaningful limits on the ways the Bureau carries out its mission.]]> tag:www.huffingtonpost.com,2011:/theblog//3.876068 2011-06-13T16:34:16-04:00 2011-08-13T05:12:01-04:00

Emily Berman http://www.huffingtonpost.com/emily-berman/ extended expiring provisions of the Patriot Act with very little debate. Perhaps they don't need to debate this law. After all, 10 years after its initial passage, lawmakers and voters should know what the statute says and whether they support its continued use, right? Wrong.

Turns out, it may not say what we think it says. According to members of the Senate Intelligence Committee -- whose committee service means they have access to more information than the American people, and even many of their colleagues -- "there is a significant discrepancy between what most people -- including many Members of Congress -- think the Patriot Act allows the government to do and what government officials secretly believe the Patriot Act allows them to do."

According to Senators Ron Wyden (D-Or.) and Mark Udall (D-Co.), there are two versions of the Patriot Act -- one that the public sees, and a more permissive one that the government keeps to itself. The existence of this secret law means that "Congress and the public are prevented from having an informed, open debate on the Patriot Act." In fact, many members of Congress "have not even seen the secret legal interpretations that the executive branch is currently relying on," according to the senators.

We've heard this song before. Justice Department memos released in 2004 and 2009 revealed that the executive branch did not consider conduct that most people would call torture to be prohibited by the laws outlawing torture. But since the executive gave the word "torture" a secret definition -- i.e., that it applied only to techniques that caused the kind of pain felt during organ failure or death -- public statements by government officials announcing that "the United States does not torture" proved, at the least, misleading.

But secret (and creative) interpretations of the law are not exclusive to torture. We've seen the same thing with the Patriot Act in the past, according to congressional overseers. In 2009, former Senator Russ Feingold said there "is information about the use of [surveillance authority] that I believe Congress and the American people deserve to know." Instead, "critical information about the implementation of the Patriot Act" that "would have a significant impact on the debate" has not been made public.

As the saying goes, fool me once, shame on you; fool me twice, shame on me. But what if even twice isn't enough to drive home the lesson?

To be sure, surveillance abuses may seem less egregious than torture. But the damage to democratic principles resulting from secret law is the same. There is no principle more fundamental to the design of our Republic than the idea that voters can ratify or reject decisions that elected officials make on their behalf. Absent information about the content of these decisions, the electorate can neither ensure accountability for foolish or unlawful policies nor make informed electoral decisions.

There is a pattern here that the American people ignore at their peril: extending broad powers to the executive branch, which are wielded in secret and which congressional overseers are barred from discussing with their constituency, leads -- when pressure on government officials is strong enough -- to excess. The very existence of laws and regulations limiting government surveillance authority recognizes this truth. These rules were designed to do away with a world in which the intelligence community had free rein to run rampant over the private lives of Americans. And the key to these rules is adequate oversight to ensure their proper implementation.

Over the past decade, however, we have allowed the intelligence community to implement surveillance laws with minimal oversight. As a consequence, executive branch officials are free to interpret their authority expansively, content in the knowledge that they likely will not be asked to justify the full scope of their actions to the pesky electorate. Congress should have taken advantage of the Patriot Act sunset to insist on more robust oversight of these powers. Instead, it extended the expiring provisions for another four years.

The chair of the Senate intelligence committee has agreed to pursue the issue of secret executive branch memos interpreting the Patriot Act and to make changes in the law if necessary. This is a critical first step. The American people deserve to hear a real debate about what government surveillance programs are really doing in their name. Only then can we make an informed, responsible decision about whether the claimed security benefits of those programs justify their costs. ]]> tag:www.huffingtonpost.com,2011:/theblog//3.868111 2011-05-27T16:45:20-04:00 2011-07-27T05:12:01-04:00

Emily Berman http://www.huffingtonpost.com/emily-berman/
In Mohamed et al. v. Jeppesen DataPlan, Inc., five men alleged that Jeppesen, a subsidiary of the Boeing Company, helped the CIA transfer them to other countries for detention, interrogation and torture. The government successfully argued that the very subject matter of its extraordinary rendition program is a state secret and therefore entirely off limits to the courts. When the lower courts dismissed their case on this basis, the plaintiffs appealed to the Supreme Court to reverse that decision -- an appeal that fell on deaf ears.

By refusing to hear the case on appeal, the Supreme Court leaves in place not only the lower court's decision in Jeppesen, but also several other federal court of appeals decisions that adopt a similar, disturbingly broad, interpretation of the government's right to invoke the state secrets privilege. By acquiescing to the government's overly liberal use of the privilege, these decisions scuttle any hope that the courts will provide either justice for victims of rendition, or accountability for the government officials who designed and carried out these programs.

But it doesn't have to be this way. In fact, shortly after President Obama took office, the Department of Justice reviewed its use of the state secrets privilege, and the Attorney General adopted a policy to bring increased oversight and accountability. Unfortunately, to date, the government has not indicated whether it has enforced this policy.

A key provision of that Justice Department policy, which it announced in September 2009, says that when DOJ invokes the state secrets privilege to prevent a lawsuit from proceeding, but the case raises credible allegations of government wrongdoing, "the Department [of Justice] will refer those allegations to the Inspector General of the appropriate department or agency for further investigation, and will provide prompt notice of the referral to the head of the appropriate department or agency."

The thorough investigation that could result from such a referral, along with a public report setting out the results -- though certainly no substitute for a plaintiff's day in court -- would bring much-needed accountability to executive branch officials. No longer would the veil of state secrets shield from public view possible violations of individual rights carried out in the name of national security. Moreover, uncovering government wrongdoing would provide plaintiffs, unjustly denied their day in court, an opportunity for at least some form of vindication -- a government report corroborating their complaints.

The Supreme Court's refusal to hear the Jeppesen case makes this review process all the more urgent. Indeed, in dismissing the case, the appeals court recognized that a denial of a judicial forum based on the state secrets doctrine not only "forecloses at least one set of judicial remedies," depriving plaintiffs the opportunity to prove their alleged mistreatment, but also "eliminates further judicial review . . . one important check on alleged abuse by government officials."

But we cannot know whether the Justice Department sees the urgency. Since December 15, 2010, the Brennan Center, joined by 25 other groups and individuals, has twice sent a letter to the Attorney General asking him why, given the credible allegations raised in Jeppesen and similar cases -- such as Arar v. Ashcroft and El-Masri v. Tenet -- no thorough Inspector General report on an investigation has been made public. So we are left in the dark with respect to whether the DOJ is even following its own policy.

The Justice Department's policy was not intended to stop the state secrets privilege from being invoked, nor should it. There are numerous instances when the government must invoke the privilege in order to protect our national security interests.

But once invoked, the current policy can ensure that undisclosed government policies receive the public scrutiny they deserve. The Justice Department's policy can only do so, however, if it is enforced. Mr. Attorney General, please enforce your policy.
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Emily Berman http://www.huffingtonpost.com/emily-berman/
These are just some of the findings of an Electronic Frontier Foundation study of nearly 2,500 pages of FBI documents from 2001 to 2008. The documents report violations of the rules governing FBI investigations to the Intelligence Oversight Board -- a commission charged with overseeing the Intelligence Community's compliance with the Constitution and other applicable laws.

If the report's findings sound familiar, that's because it is just the latest in a series of reports documenting the many ways in which the FBI, particularly when engaged in conducting intelligence investigations, works outside the bounds of its authority. Taken together, these reports send an unmistakable message: the existing safeguards to ensure that the FBI complies with all of the applicable laws, rules, and regulations simply are not up to the task.

Not only is the story familiar, it is also entirely predictable. For years the Bureau has struggled to abide by its own rules. The response? Change the rules. Since 1976, when the Justice Department first adopted guidelines to regulate the FBI's investigative powers, those guidelines have become more and more lax in four distinct ways. The FBI's domestic-intelligence-collection and analysis role has expanded, the standards required to engage in investigative activity have been relaxed, limits on the intrusiveness of investigative techniques have been curtailed, and oversight and supervisory approval requirements have been rolled back.

The result is a domestic intelligence agency collecting information about U.S. citizens with only minimal restrictions on its behavior and with insufficient oversight. In such a situation, it is no wonder that FBI agents -- acting with the best of intentions -- often stray beyond the limits of their powers.

This must change. It is time for the Bureau to recognize its own tendency for excessive zeal in intelligence collecting and to undertake a serious effort to reform its practices. It is time for the Justice Department to hold the Bureau to a higher standard. It is time for Congress to take a more active role in policing the boundaries of FBI power, and in ensuring that violations of existing rules have consequences.

And determining whether the rules are being followed should be only part of the inquiry. The rules themselves must be examined to ascertain whether they make the FBI more effective or whether their costs outweigh their benefits. The FBI, the Justice Department, and Congress should be asking: How frequently are particular authorities used? How frequently has their use led to meaningful intelligence? Are there any authorities that would be more effective if they were used more (or less) frequently?

To be sure, intelligence collection is an important part of the FBI's mission, and it is particularly crucial to terrorism prevention efforts. But strengthened oversight would actually aid in effective counterterrorism efforts, in at least two ways. First, it would indicate which methods work and which ones don't, allowing the FBI to make better decisions about when and how to use its authorities. Second, subjecting itself to increased oversight -- and the accountability that comes with it -- will help the FBI shed the stigma of abuse. This will allow it to repair its strained relationships with the communities it polices, creating a more cooperative (and more fruitful) investigative environment.

We need to take our counterterrorism efforts seriously. This means not only training, equipping, and deploying law enforcement officers. It also means employing meaningful evaluation mechanisms to prevent abuses and to determine which of the FBI's existing authorities are effective, which ones are unnecessary, and which ones lead to an unacceptable number of civil liberties violations.]]>