Tag: rule of law

Accountability for ‘Exigent Letter’ Abuse At Last?

It is more than three years since the Office of the Inspector General first brought public attention to the FBI’s systematic misuse of the National Security Letter statutes to issue fictitious “exigent letters” and obtain telecommunications records without due process. Nobody at the Bureau has been fined, or even disciplined, for  this systematic lawbreaking and the efforts to conceal it. But the bipartisan outrage expressed at a subcommittee hearing of the House Judiciary Committee this morning hints that Congress may be running out of patience—and looking for some highly-placed heads to roll. Just to refresh, Committee Chairman John Conyers summarized the main abuses in an opening statement:

The IG found that more than 700 times, such information was obtained about more than 2,000 phone numbers by so-called“exigent letters” from FBI personnel. In some cases, the IG concluded, FBI agents sent the letters even though they believed that factual information in the letters was false. For more than 3,500 phone numbers, the call information was extracted without even a letter, but instead by e‐mail, requests on a post‐it note, or “sneak peaks” of telephone company computer screens or other records…. In one case, the FBI actually obtained phone records of Washington Post and New York Times reporters and kept them in a database, leading to an IG conclusion of “serious abuse” of FBI authority and an FBI public apology.

It’s probably actually worse than that: Since these letters often requested a “community of interest” analysis for targeted numbers, the privacy of many people beyond the nominal targets may have been implicated—though it’s hard to be sure, since the IG report redacts almost all details about this CoI mapping.

And as Rep. Jerry Nadler pointed out, the IG report suggests a “clear pattern here of deliberate evasion,” rather than the innocent oversight the Bureau keeps pleading.  Both Nadler and the Republican ex-chair of the committee, Rep. James Sensenbrenner, expressed frustration at their sense that, when the FBI had failed to win legislative approval for all the powers on its wish list, it had simply ignored lawful process, seizing by fiat what Congress had refused to grant. Sensenbrenner, one of the authors of the Patriot Act, even declared that he felt “betrayed.” But we’ve heard similar rhetoric before. It was the following suggestion from Conyers (from my notes, but pretty near verbatim) that really raised an eyebrow:

There must be further investigation as to who and why and how somebody in the Federal Bureau of Investigation could invent a practice and have allowed it to have gone on for three consecutive years.  I propose and hope that this committee and its leadership will join me, because I think there may be grounds for removal of the general counsel of the FBI.

That would be Valerie Caproni, one of the hearing’s two witnesses, and an executive-level official whose dismissal would be the first hint of an administration response commensurate with the gravity of the violations that occurred. Caproni’s testimony, consistent with previous performances, was an awkward effort to simultaneously minimize the seriousness of FBI’s abuses—she is fond of saying “flawed” when le mot juste is “illegal”—and also to assure legislators that the Bureau was treating it with the utmost seriousness already. Sensenbrenner appeared unpersuaded, at one point barking in obvious irritation: “I don’t think you’re getting the message; will you get the message today?” The Republican also seemed to indirectly echo Conyers’ warning, declaring himself “not unsympathetic” to the incredulous chairman’s indictment of her office. Of course, the FBI has it’s own Office of Professional Responsibility which is supposed to be in charge of holding agents and officials accountable for malfeasance, but apparently the wheels there are still grinding along.

It’s also worth noting that Inspector General Glenn Fine, who also testified, specifically urged Congress to look into a secret memo issued in January by the Office of Legal Counsel, apparently deploying some novel legal theory to conclude that many of the call records obtained by the FBI were not covered by federal privacy statutes after all. This stood out just because my impression is that OIG usually limits itself to straight reporting and leaves it to Congress to judge what merits investigation, suggesting heightened concern about the potential scope of the ruling, despite FBI’s pledge not to avail itself of this novel legal logic without apprising its oversight committees. Alas, the details here are classified, but Caproni did at one point in her testimony conclude that “disclosure of approximately half of the records at issue was not forbidden by ECPA and/or was
connected to a clear emergency situation.”  There were 4,400 improperly obtained “records at issue” in the FBI’s internal review, of which about 150 were ultimately retained on the grounds that they would have qualified for the emergency exception in the Electronic Communications Privacy Act.  Since that tally didn’t include qualifying records for which legitimate process had nevertheless been issued at some point, the number of “real” emergencies is probably slightly higher, but that still suggests that the “half” Caproni alludes to are mostly in the “disclosure…not forbidden by ECPA” category.  Since ECPA is fairly comprehensive when it comes to telecom subscriber records—or at least, so we all thought until recently—we have to assume she means that these are the types of records the OLC opinion has removed from FISA’s protection. If those inferences are correct, and the new OLC exception covers nearly half of the call detail records FBI obtains, that would not constitute a “loophole” in federal electronic privacy law so much as its evisceration.

Of course, it’s possible that the specific nature of the exception would allay civil libertarian fears. What’s really intolerable in a democratic society is that we don’t know. Operational facts about specific investigations, and even specific investigatory techniques, are rightly classified. But an interpretation of a public statute so significant as to potentially halve its apparent protections cannot be kept secret without making a farce of the rule of law.

A Government of Laws, Not Men

In the government of this commonwealth… the executive shall never exercise the legislative [or] judicial powers… to the end it may be a government of laws and not of men. – The Constitution of Massachusetts, 1780, drafted by John Adams, Samuel Adams, and James Bowdoin

In contrast, consider today’s news:

The Obama administration has taken the extraordinary step of authorizing the targeted killing of an American citizen, the radical Muslim cleric Anwar al-Awlaki, who is believed to have shifted from encouraging attacks on the United States to directly participating in them, intelligence and counterterrorism officials said Tuesday.

Americans, this is what arbitrary government looks like. As a simple matter of fact, even George III was never this arbitrary. Even he didn’t make individual colonists’ lives depend merely on an act of his own will.

Indeed, if I wanted a perfect example of what a government of men, not laws, looked like, I could just glance at the newspapers today and see what our government is doing right at this moment.

Do not respond that this power will only be used wisely and sparingly. Doing so just admits my basic point, namely that we now depend purely on the wisdom and restraint of our individual leaders. We depend on their wisdom and restraint – to check their own worst impulses. All power, both for and against, is contained in one individual. No legal processes, and no guarantees, separate us from them. And the stakes are life or death.

Likewise, do not respond that this power will only be used against very bad people. Again, doing so just admits that we now depend on an unreviewable judgment of character, not on a legal system with formal procedures and safeguards. Even in the dark days of the Cold War – even during the Revolution itself – we never ceded so much power to so few.

To those who think our leaders’ prudence is a sufficient check on their own power, consider this. Let’s both grant that Barack Obama is basically a decent, well-meaning guy (apart from the fact that a decent, well-meaning guy would never want a power like this). If he’s a decent guy, then perhaps he’ll use his newly claimed power wisely, insofar as such an atrocious power can be used wisely. But on the other hand, if I were truly evil, and if I wanted to assassinate with impunity all the people I hated… Suddenly now I’d be very interested in running for president.

Glenn Greenwald has a lot more on the issue, including evidence that Barack Obama was apparently against this power… before he was for it.

Constitution, Schmonstitution — The Law Is What I Say It Is

The health care debate has illuminated how little regard many members of Congress have for the U.S. Constitution.

First, Rep. Alcee Hastings (D-FL) said, “There ain’t no rules here… When the deal goes down … we make ‘em up as we go along.

Then, House Judiciary Committee chairman John Conyers (D-MI) claimed that the Constitution’s non-existent “Good and Welfare clause” grants Congress the power to compel Americans to purchase health insurance.

Now, Rep. Phil Hare (D-IL) admits he doesn’t really care whether the Constitution grants Congress that power:

Off-camera: Where in the Constitution…

Rep. Hare: I don’t worry about the Constitution on this, to be honest.

Off-camera: [Laughter.] Jackpot, brother.

Rep. Hare: What I care more about — I care more about the people that are dying every day that don’t have health insurance.

Off-camera: You care more about that than the U.S. Constitution that you swore to uphold!

Rep. Hare: I believe that it says we have the right to life, liberty, and the pursuit of happiness.  Now you tell me…

Off-camera: That’s the Declaration of Independence.

Rep. Hare: It doesn’t matter to me. Either one…

[Lots of childish sniping.]

Off-camera: Where in the Constitution does it give you the authority to…

Rep. Hare: I don’t know.  I don’t know.

Off-camera: That’s what I thought.

Of course, that doesn’t really capture how annoying both the congressman and his interrogators are.  So here’s the video:

Rep. Hare is channeling Chicken Little: because the sky is falling, we don’t have time to worry about the Constitution’s restraints on congressional power.  We all know how that story ends.  Indeed, true to the fable, there’s no convincing evidence that Rep. Hare’s solution would save the lives he thinks it would save, and it could even cost lives in the long run.  (Fun fact: Wikipedia reports that in early versions of the fable, Chicken Little is actually a hare.)

In addition to brushing up on their Chicken Little, Rep. Hare and his colleagues might want to rent A Man for All Seasons to remind themselves why it’s important to pay attention to what the law actually says:

Sir Thomas More: What would you do? Cut a great road through the law to get after the Devil?

William Roper: Yes, I’d cut down every law in England to do that!

Sir Thomas More: Oh? And when the last law was down, and the Devil turned ‘round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man’s laws, not God’s! And if you cut them down, and you’re just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake!

Madeleine Albright’s Confusion

Former secretary of state Madeleine K. Albright writes in Parade magazine that 20 years after the Berlin Wall, “We Must Keep Freedom Alive.” A commendable sentiment, but the article is a bit confused, notably in that it seems to use “freedom” and “democracy” interchangeably. But as Fareed Zakaria and Tom Palmer, among others, have demonstrated, they’re not the same thing. Freedom is the right and ability of individuals to make the important decisions about their lives. Democracy – especially constitutional democracy, with separation of powers, the rule of law, and constraints on government – can be the most effective way to protect liberty. But democracy isn’t liberty, and we shouldn’t confuse the relationship.

Albright writes:

democracy is a prerequisite to economic growth.

That seems clearly, spectacularly wrong. Consider some historical cases of great economic growth: Hong Kong, Singapore, and Taiwan grew rapidly in recent decades without being democracies. (And I would say that that growth led to Taiwan’s becoming a democracy.) Beyond that, look at the United States and Great Britain during the unprecedented growth of the 19th century; neither was a democracy by modern standards. And of course China has been experiencing rapid growth in the past 30 years without democracy.

But look at Albright’s complete sentence:

In fact, democracy is a prerequisite to economic growth, which only flourishes when minds are encouraged to produce, invent, and explore.

That is a much stronger hypothesis. Indeed economic growth flourishes “when minds are encouraged to produce, invent, and explore.” And the condition in which that happens is actually called freedom, not democracy. So perhaps the problem is just that Albright is using the terms “freedom” and “democracy” loosely. And if by democracy she means the modern Western conception of a system of individual rights, private property, and market exchange protected by a limited constitutional government featuring divided powers, an independent judiciary, and free and independent media, then it would be true that that kind of “democracy” is a solid foundation for economic growth – though not a prerequisite, as the examples above demonstrate.

The relationships between the rule of law, popular participation in government, constraints on government, protection of property, the market economy, and economic growth deserve serious study, and that study should start with conceptual clarity.

Monday Links

  • Nancy Pelosi: “The power of Congress to regulate health care is essentially unlimited.”

Khalid Shaikh Mohammed on Trial

The Council on Foreign Relations’ Steven Simon makes a difficult case, and he makes it well, regarding the Justice Department’s decision to try Khalid Shaikh Mohammed in a civilian court in New York City. I agree with his bottom line:

no trial can provide closure for the traumas of that day. But a judgment in New York, where the greatest suffering was inflicted, will remind us both of the narrow viciousness of the terrorists’ cause and of the enduring strength of our own values.

I say again, this is not an easy case to make, and not just because of the emotions involved. Most people have already made up their mind that 1) KSM is undeserving of such treatment (the same could be said of most mass murderers); 2) that the risks posed to national security by a public trial (including the possibility of an acquittal and the potential disclosure of sensitive information) are not outweighed by the benefits; and 3) that AG Eric Holder made this decision in a haphazard manner, and for all the wrong reasons.

But I think that Simon renders a great service in making Holder’s argument, and, indeed, in making it better than the AG did.

My objectivity can be called into question: Steven has spoken at Cato a few times, and he was and is a participant in our ambitious counterterrorism project. I have enormous respect for his expertise on such matters.  

But I submit that anyone who reads Simon’s op-ed with an open mind must concede at least some of his points, and therefore further conclude that some of the criticisms of the decision are unfair. That does not mean that Simon will ultimately change a lot of minds. One might still conclude that, on balance, the DoJ’s decision was unwise, and that KSM should have been tried by a military tribunal, or merely detained forever. In truth, I was leaning in that direction before I read the piece.

But, on reflection, my confidence in our system of government and in the rule of law leads me to believe that Simon has it right. To the extent that KSM is given a forum for propagandizing on behalf of al Qaeda, the net effect of his rantings will be to remind the entire world that AQ is nothing more than a bunch of self-important, murderous SOBs who kill innocent people.

Nothing more, nothing less.

Chávez Declares Socialism the ‘Kingdom of God’

ChavezA new poll in Venezuela shows that President Hugo Chávez’s approval ratings have fallen from about 60 percent early this year to 46 percent now. Likewise his disapproval ratings have increased from about 30 percent earlier in the year to 46 percent now, and 59 percent of those polled view the country’s situation negatively.

Despite having received upwards of $800 billion in revenues during Chávez’s ten years in power, the government is doing a dismal job of carrying out its proper functions—such as controlling crime or corruption—and public administration in other areas is deteriorating. Chávez recently announced regular cuts in electricity and water provision. (These issues will be discussed in an upcoming Cato forum on Venezuela on November 10.)

As domestic conditions deteriorate, Chávez is apparently feeling more empowered, or at least feels the need to continue his relentless accumulation of power. Today, El Universal, a Venezuelan daily, reports that Chávez has announced that he can expropriate private enterprises at will because he was given that power by the people. Why worry about the rule of law when you have the ability to interpret the will of the people? Chávez’s comments reported today should dispel any doubts that he considers himself a savior to his country:

Every day I’m more of a revolutionary, every day I’m more socialist… I’m going to take Venezuela toward socialism, with the people and the workers…The revolution is not negotiable, socialism is not negotiable, because every day I’m more convinced that socialism is the kingdom of God on earth. That is what Christ came to announce.