Spoiler alert: Yes, there have been a number of well-documented abuses of
power under the Patriot Act, as well as subsequent surveillance legislation.
I'll detail some of them in a moment, and the ACLU has a more thorough report. As that report should make abundantly
clear, it's really only a handful of the Patriot Act's dozens of provisions that
civil libertarians have serious problems with, and our concern in most cases is
to improve them, not eliminate them. But there are three more general points I
think it's important to clarify before we delve into specifics.
First, intelligence surveillance demands especially robust safeguards
precisely because it's so inherently secretive and therefore lacks many of the
checks that exist in criminal investigations. Ordinary wiretaps, for instance,
are always eventually disclosed to their targets and typically meant to be used
as evidence in a trial, in which defense attorneys have powerful incentives to
scrutinize the record closely for misbehavior. Intelligence taps are covert:
Targets may never learn they've been spied on, and criminal prosecution may not
be the goal. Both National Security Letters (NSLs) and so-called Section 215
orders for business records and other "tangible things" come with gag orders
that remain in place long after the
investigation is complete. The banks and telecommunications providers served
with these orders have little incentive to expend time, money and energy
challenging demands for information in court, and the few that have done so are
prohibited from talking about
why they believe the requests are illegitimate.
Congressional oversight can help
— the Church Committee in the 1970s uncovered a stunning array of abuses
stretching back decades — but, absent some major scandal, tends to be limited in
It also doesn't help that among the already documented abuses is the
intelligence community's failure to fully and accurately inform Congress about
their use of those powers. When legislators do become aware of problems, their
ability to mobilize support for reform is hampered by their own inability to go
public with their concerns. Sen. Russ Feingold (D-Wis.) has repeatedly said that he believes those Section 215 orders
are being misused, but citizens have no real way to evaluate the claim.
Second, "abuse" typically connotes a violation of the law, or at least the
internal rules governing surveillance. But there's good reason to be concerned
about some of these powers even when they're used precisely as intended. In
recent hearings, Justice Department officials made quite clear that they vacuum
up reams of telephone, Internet and bank records in the preliminary phases of
investigations to "close down leads" and spot suspicious patterns.
another way of saying that the vast majority of people surveilled are innocent —
not when this authority is misused, but by design. The FBI issues tens of
thousands of National Security Letters each year, and the majority seek
information about U.S. citizens. That information isn't discarded; it goes into
a massive FBI database containing
literally billions of records. Simple math suggests there just aren't that many
terrorists out there.
So-called sneak-and-peek warrants that were sold as a vital tool for
terrorism investigations are now overwhelmingly used in ordinary
criminal investigations — contrary to what the public was told, certainly, but
in accordance with the letter of the law. If we look back to those abuses
uncovered by the Church Committee, we find some cases in which surveillance of
journalists, activists and even Supreme Court justices was initiated for
manifestly unlawful political purposes. But just as often, information gathered
in the course of an initially legitimate national security investigation was
later used for an illegitimate political end.
Finally, it's important to be clear on just what sort of abuse we should be
worried about. It is not primarily that investigators will decide to start
spying on average Americans — though we have learned that some National
Security Agency operators find it hilarious to pass around recordings of U.S.
soldiers' pillow talk. It's that all this information, even if acquired for
legitimate purposes, gives the people who hold it enormous political power. A
reporter, activist or senator who crossed J. Edgar Hoover might find his career
ruined by an embarrassing leak to the press.
All that said, what do we know about actual abuses so far? We know two
successive inspector general reports found endemic misuse of NSLs,
including requests for information the FBI wasn't entitled to obtain and
"exigent letters" sent when no real emergency existed. We know that in at least
one case, NSLs were used to obtain records after a judge rejected an attempt to
obtain them via court order, citing 1st Amendment concerns.
We know expanded
National Security Agency wiretap powers approved last year have led to
substantial "overcollection" of Americans'
purely domestic communications — including Bill Clinton's e-mails. Many of these can be put down to
sloppiness or ineptitude, though they're no less troubling.
But history teaches that if there are more deliberate abuses, we probably
won't know about them for decades to come. I don't know about you, but I'd
rather not wait to find out.
This is the second part in a three-part series.
Part I | Part II | Part III (coming soon)