Atta Girl, Cassandra! Just Keep on Trying!

Guess who tried to warn, almost four years ago, of potential NSL problems in the FBI? That's right, the same person who couldn't land a job on the President's Civil Liberties Oversight Board despite a bi-partisan congressional recommendation.

Another of my failed warnings has just metastasized into a national news scandal. Look at what I tried to point out about the NSL problem back in mid 2003 as part of a much longer paper on "balancing civil liberties with the need for effective investigation," (which ended up being published with the help of the Milton Eisenhower Foundation as a chapter in their book, Patriotism, Democracy and Common Sense: Restoring America's Promise at Home and Abroad).

"With respect to third party records, however, it is only fair to point out that a little-noticed section of the Patriot Act, Section 505, allows FBI SACs (Special Agents in Charge of the fifty-six field offices) to issue "National Security Letters (NSLs)" to obtain three common types of records: an individual's telephone and internet service provider toll and transaction records, bank and credit records. This delegation of authority down to SACs has greatly streamlined and speeded up the process of issuing NSLs and my guess is that the number of NSLs being issued in the "war on terrorism" is probably manyfold what it was prior to 9-11. A few months ago, the Attorney General also expanded the authority to issue NSLs not only in "full investigations" but also even in "preliminary investigations." It is also only fair to note that (long-term, if not endless) secrecy accompanies the use of NSLs and the information obtained by the FBI pursuant to their authority. A further provision, tucked inside an intelligence spending bill, which the President signed on December 13, 2003, expands the ability of the FBI to obtain a whole host of third party records, from a wide range of entities such as casinos, pawn shops, investment brokers, telegraph companies, realtors, car dealers, travel agents, and the U.S. Post Office. This legislative expansion was, however, far from a cakewalk. More than one third of the House, including 15 conservative Republicans, voted against what some dubbed, "Patriot Act II" stating that, "expanding the use of administrative subpoenas (NSLs) and threatening our system of checks and balances is a step in the wrong direction."

My little red flag about NSLs was initially drafted almost four years ago; the "Patriot Act II" part was added a few months later. I decided not to wait for or rely solely upon book sales to get the message out. That turned out wise since the book about Restoring America's Promise didn't hit stores until 2004, just one month before Bush was re-elected and all hope of restoring our country's promise promptly died. So once I snuck the above paragraph, embedded as it was in the larger paper, through the FBI's "pre-publication clearance" process, I took it on myself to try to educate folks around the country about some of the more important civil liberty issues at stake. And I started by meeting with the Executive Director of the ACLU, Anthony Romero, for breakfast and a little discussion. If you remember back in those first couple years after the Patriot Act passed, the ACLU's attention was unfortunately diverted to a large extent to the idea that secret court orders were being used by the FBI to obtain people's library records. That fear was a red herring for a lot of reasons but it had understandably taken root when old Attorney General "It's All Top Secret" Ashcroft refused to confirm or deny whether there was any truth to the rumor. (I knew that library books, as a practical matter, were not the problem as they are not even useful for the investigation of terrorism. But it's possible that Ashcroft and other DOJ officials actually found it advantageous to play the secrecy card in order to keep the library issue alive and divert attention away from all the other, far more dicey activities they were authorizing.)

Ultimately I got a chance to address the ACLU conference held in the summer of 2004 and many other civic, church and professional groups on these issues but it obviously was not enough to prevent the worst from happening: numerous civil liberties and human rights abuses (some downright democracy-threatening) with no appreciable gain in fighting the true terrorist threat. In fact what most people don't realize is that the over-collection of data and radical departure from established legal principles after 9-11 hasn't necessarily helped the cause of making us more secure. Much has actually proven counter-productive to the goal of detecting and thwarting actual terrorists. (For more, see my op-ed published by the Minneapolis Star Tribune after Moussaoui's conviction.)

Maybe 150,000 plus NSLs later, someone might remember what former FBI Director Louie Freeh's opinion was as to why the "dots had not been connected" pre-9/11. He said something like "the intelligence we had was like a fire hose; with so much coming out, it was hard to get a drink." But if data collection was like a fire hose before 9-11, it soon became Niagara Falls! Freeh's analogy would mean it's a lot harder to connect the dots now amongst the massive collection of telephone, internet communications, bank, credit and other records that have cluttered up intelligence databases.

I should mention that I didn't entirely sneak the paragraph about NSLs through the FBI's hierarchy and into the public domain without raising any eyebrows back in 2003. After reviewing my paper, one of the lawyers at FBIHQ assigned to Patriot Act issues quickly responded by questioning "why I would want to make people aware of the NSL tool when no one in the country was even aware they existed." I told him that the objective of my writing the paper was to provide an honest assessment for purposes of doing the right thing over the longer haul. But with the "us versus them" blinders and green light on, I don't think he quite understood. He did correctly appreciate, however, that it would take quite a while for this scandal to be made public.

As I've said before, it's no fun playing Cassandra including blogging about it afterward. And it'll be great when the day comes that it isn't so necessary.