Saturday, March 10, 2007

Federal Bureau of Intrusion: 'Berto's Burglars

Also at DKos.

It's hardly surprising to discover that the FBI has been abusing its authority under the Patriot Act. What gets my attention is that the person who blew the lid on the scandal was a Justice Department inspector general (IG). For the past six years, the Justice Department's primary function has been to make sure the law does not apply to Mr. Bush.

According to a Washington Post report, the IG audit…
… detailed widespread abuse of the FBI's authority to seize personal details about tens of thousands of people without court oversight through the use of national security letters.

It also found that the FBI had hatched an agreement with telephone companies allowing the agency to ask for information on more than 3,000 phone numbers -- often without a subpoena, without an emergency or even without an investigative case. In 2006, the FBI then issued blanket letters authorizing many of the requests retroactively, according to agency officials and congressional aides briefed on the effort.

On release of the IG audit, FBI Director Robert S. Mueller III promptly apologized and promised swift corrective action. At a press conference in Uruguay, Mr. Bush said he was "pleased" that his FBI chief "took responsibility as he should have."

Holy heinous hypocrisy.

Yeah, I'm sure Bush was "pleased" to see yet another of his liegemen take a bullet for him. Meuller should have been canned immediately. What will happen instead, I suspect, is that Bush will keep him around and see how the radioactive dust settles. If the problem gets buried in the hoopla of all the administration's other dirty bombs, Mueller will probably stay in place for the rest of Bush's tenure. If it turns into another Libby-gate, Mueller will take the heat from Congress until he reaches critical mass, and Bush will reluctantly accept his resignation. If things get really, really bad, Mueller might not get his Medal of Freedom.

Something Happened

As with so many of the Bush administration's shenanigans, it takes a Vulcan mind meld to figure out exactly what happened in the Patriot Act abuse affair. To begin with, there can't be much more than a fistful of lawyers who know what the Patriot Act says. It's a compendium of line item changes to other sections of U.S. code. The original version was passed on October 24, 2001, a mere month and a half after the 9/11 attacks. One's mind boggles that such a labyrinth piece of legislation could have been cobbled together in that short a period. A conspiracy aficionado might conclude that the Act was in development well before 9/11.

Senators from both sides of the aisle expressed outrage at the recent IG report. Chuck Schumer (D-NY) said, "This goes above and beyond almost everything they've done already. It shows just how this administration has no respect for checks and balances."

Dick Durbin (D-IL) said the report "confirms the American people's worst fears about the Patriot Act."

Arlen Specter told media reps that Congress may "impose statutory requirements and perhaps take away some of the authority which we've already given to the FBI, since they appear not to be able to know how to use it."

The Patriot Act authority the FBI doesn't know how to use is something called a national security letter, which the Times describes as…
…a type of administrative subpoena that allows the FBI to demand records from banks, credit-reporting agencies and other companies without the supervision of a judge.

The IG report found that the FBI had abused the privilege by underreporting to Congress the number of times they used it. But wait a minute--the privilege itself sounds like a violation of the Fourth Amendment of the Constitution which guarantees…
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Who knows? The concept of constitutional checks and balances is so scrambled at this point, we may never be able to put the egg back together again. The legislative branch gave the executive branch authority to conduct searches and seizures without warrants from the judicial branch as long as it let the legislative branch know what it was up to. Now, the legislative branch that cut the judicial branch out of the picture is throwing a tantrum because the executive branch cut the legislative branch out of the picture.

Triple Vision

The distinction between the executive branch's Justice Department, the legislative branch's judiciary committees, and the judicial branch is blurred to the point where the only way the Constitution makes sense is if you read it while you're so drunk you're seeing triple.

The Patriot Act is so full of snakes that Congress will never figure out how to fix it. They need to just repeal the damn thing. Then they need to impeach--or threaten to impeach--FBI director Mueller. Then they need to do the same with Attorney General Alberto Gonzales (see Larisa Alexandrovna's take on 'Berto's culpability in this fandango). And then they need to go after Dick Cheney, the kingpin who had played the largest role in turning the office of the president into an imperial throne.

As to whether we can breathe easy now that the Justice Department IG is on the job: the IG report released on Friday was required by Congress as part of the dope deal they made when the reauthorized the Patriot Act last year, back when the GOP still had control of Congress.

How did Dick Cheney ever let that happen? He must have been distracted: Iraq, Afghanistan, Plame-gate, NSA-gate, shooter-gate…

Everybody has their favorite parts of the Bush administration's innumerable scandals. Here's my favorite part about Patriot-gate:
The findings by inspector general [Glenn] Fine were so at odds with previous assertions by the Bush administration that Capitol Hill was peppered yesterday with retraction letters from the Justice Department attempting to correct statements in earlier testimony and briefings. Gonzales and other officials had repeatedly portrayed national security letters as a well-regulated tool necessary for the prevention of terrorist attacks.

One such retraction letter, sent to Specter by Acting Assistant Attorney General Richard A. Hertling, sought to correct a 2005 letter that attacked a Washington Post story about national security letters. "We have determined that certain statements in our November 23 letter need clarification," Hertling wrote.

Yeah. They weren't lying. They just weren't clear enough about the truth.

That's understandable, I suppose. It's hard to be clear about the truth when you don't tell it.


Commander Jeff Huber, U.S. Navy (Retired) writes from Virginia Beach, Virginia. Read his commentaries at Pen and Sword.


  1. Bacon's Rebellion1:49 PM


    I think your scenario concerning the fate of FBI Director Robert S. Mueller, III is probably going to prove to be prescient. I've lost track of all the former FBI Directors, who like Mueller, have found themselves in trouble because they were really never in firm control of their agency. These people frequently become creatures of their own senior managers and are caught between the demands of an always politically motivated Attorney General and the agendas of their own senior staff members. The problem seems to be that when you bring in an outsider, who has no real familiarity with the internal workings of both the FBI and Justice Department, by the time he finally manages to figure out his own agency (some never do) he is already deeply mired in whatever has occurred in the interim. Promoting from within the existing body of senior FBI management personnel means that you are probably going to be putting someone in charge who already has more than few skeletons rattling around in his office closet.

    There are certainly honest and upright FBI field agents. I've known a few of them over the years quite well. These are not the people who will cut the necessary corners to get themselves promoted to senior management positions. I think it is probably a fair statement to say that most experienced FBI field agents have either distain or very little confidence in their own senior leadership.

    When you couple the institutional weaknesses of the FBI and the Justice Department with a body of law like the Patriot Act (the name alone ought to start ringing alarm bells) you are absolutely begging for violations of the Constitution to occur. As a general rule of thumb when dealing with any bureaucracy (especially those having police or investigatory powers) expediency will always triumph over your Constitutional rights. It is simply the nature of the beast. The first rule of the bureaucracy is to serve itself. T'was ever thus.

    We really need to repeal the Patriot's Act and replace it with a much more carefully constructed body of law which will both protect the rights of our citizens and still allow the proper Federal agencies to conduct necessary intelligence operations on U.S. soil. In addition we probably need a separate agency to conduct such operations and investigations. I don't thing that the culture of FBI makes them a good candidate for such a role and it is certainly outside the charter of the CIA. I never like to see an expansion in the size and scope of government but I think in this instance that we probably have come to a point where we need an agency designed from the ground up to conduct intelligence operations within U.S. territory.

  2. "...we probably have come to a point where we need an agency designed from the ground up to conduct intelligence operations within U.S. territory."

    The thing is, Bacon, I thought that was what the FBI was supposed to be.

  3. Bacon's Rebellion3:32 AM


    If we proceed from a premise that we need a domestic intelligence agency, and there are certainly valid arguments to made on both sides of that question, then I believe we will be best served by one that is structured specifically for that purpose alone.

    The structure of the FBI, as I'm sure you know, is actually tailored to the enforcement of a very broad range of Federal laws and making cases in court that lead to convictions. That is really not the essence of intelligence work. While their are some instances where you may very well wish to pursue legal remedies in domestic intelligence cases more often than not such an approach is likely to prove counter productive to long term intelligence goals. What you are seeking is in most instances is information not court cases.

    This requires a totally different mindset and philosophy from law enforcement. Your recruiting profiles are much different, you are seeking vastly different skill sets, personnel types, basic attitudes and a completely different method of staffing, managing and promoting personnel. In the FBI the field agents on at the top of the pecking order. Field agents are promoted in large measure on the basis of cases brought to court and successfully adjudicated. To be an analyst, a linguist, a technical specialist or anything but a field agent is to place yourself on a very limited career path. The FBI says that they have now divided their house in half with a second track for field agents specializing in intelligence rather than conventional law enforcement. If you believe that those personnel will receive equal consideration with those in conventional law enforcement roles then I have a bridge in Brooklyn that I can let you have for a very nice price. What the FBI personnel opting for intelligence slots will get is a lot of lip service and a few crumbs but not much else.

    You really need an agency whose primary goal is domestic intelligence not an established law enforcement agency who wished to take the task on as a side line in order to make sure that its domestic turf is not encroached upon. Its about budgets, egos, status and more senior management slots but it is not about making domestic intelligence work their primary focus.

    The fundamental reason that the FBI was tasked with domestic intelligence responsibilities after 9/11 is that they were already up and running. There was no one else that could be tasked for that at the time. In my opinion the Bush Administration and the Congress should both have pushed aggressively to establish a carefully conceived and well designed domestic intelligence agency. Instead we got the Patriot Act and FBI agents who were better adapted to chasing bank robbers, kidnappers and Mafia dons than trying to do intelligence jobs that they really never wanted to be in or were suited to their skills and experience.

  4. BR,

    I think the FBI took charge of counterintelligence in WWII, and more or less kept that roll through the present.

    It may be that some sort of MI6 equavalent would be more appropriate to our current situation, but I shudder to think of creating yet another big federal agency, especially under this administration.



  5. Bush says, "These problems will be addressed as quickly as possible". I'm wondering which part he considers the problem, though. That the FBI violated our rights, or that they got caught.

    Anyone heard if the IG team will be reassigned, long term, to study prisoner conditions at Gitmo?

  6. Bacon's Rebellion4:09 PM


    Your correct about the FBI taking over CI at the beginning of WWII. They had been running some CI operations even before that. At that time they were doing most of the non-military intelligence work and had some field agents assigned overseas as well. Off hand I cannot recall whether they were simply placed under the usual diplomatic cover or had separate operational status completely apart from the Department of State. Hoover wanted the whole pie but even in Washington no one was foolish enough to allow that to happen over time.

    MI5 is the British (Internal)Security Service. MI6 is their foreign intelligence service. They also operate the Special Branch of Scotland Yard which is a close equivalent to our FBI.

    I certainly share your trepidation about bringing forth a domestic intelligence service under the present administration; based upon their predilection towards a police state. I have equal concerns about forming such a service under the aegis of someone like Hilary Clinton or Mr. Obama to name just a few. That said I still believe that we need such an organization in today's climate. How we would then keep it under control and not allow it to undermine our Constitutional rights over time will always be a problem. Such an organization would require very good people well grounded in the Constitution as well as very conscientious and consistent oversight by Congress at a mimimum.

  7. Anonymous8:32 AM

    Really trustworthy blog. Please keep updating with great posts like this one. I have booked marked your site and am about to email it

    to a few friends of mine that I know would enjoy reading..
    sesli sohbet
    sesli chat