|
by Charles Carreon
1:08pm, November 6, 2005
New Law Would Criminalize
the Refusal To Rat On Your Neighbor
According to a November 6, 2005 article by Barton
Gellman in the Sunday edition of the Washington Post, the FBI has been
issuing "National Security Letters" at a rate that is a 10,000% increase
(one hundred times as many) over past practices. These letters are a
fearsome privacy invasion that Congress authorized in the middle of its
911 funk, when the quickest way to be seen as a patriot was to trash civil
liberties. All indented quotes are from Gellman’s Washington Post article,
entitled The FBI's Secret Scrutiny — In Hunt for Terrorists, Bureau
Examines Records of Ordinary Americans:
The FBI now issues more than 30,000 national security
letters a year, according to government sources, a hundredfold increase
over historic norms. ... Issued by FBI field supervisors, national
security letters do not need the imprimatur of a prosecutor, grand jury
or judge. ... The Bush administration defeated legislation and a lawsuit
to require a public accounting, and has offered no example in which the
use of a national security letter helped disrupt a terrorist plot.
National Security Letters (NSLs) can be delivered to
anyone, require production of any information desired by an FBI agent, and
if pending amendments to the authorizing laws are approved, will subject
anyone who refuses to comply to criminal penalties. A lawsuit filed by a
library employee, who objected to ratting out library patrons for simply
sitting at a particular computer, is pending in Connecticut to dispute the
authority of the FBI to proceed in this fashion.
The FBI came calling in Windsor, Conn., this summer
with a document marked for delivery by hand. On Matianuk Avenue, across
from the tennis courts, two special agents found their man. They gave
George Christian the letter, which warned him to tell no one, ever, what
it said. Under the shield and stars of the FBI crest, the letter
directed Christian to surrender "all subscriber information, billing
information and access logs of any person" who used a specific computer
at a library branch some distance away. Christian, who manages digital
records for three dozen Connecticut libraries, said in an affidavit that
he configures his system for privacy. ... Christian refused to hand over
those records, and his employer, Library Connection Inc., filed suit for
the right to protest the FBI demand in public.
The FBI preserves and stores all the information it
gathers in a data bank that mixes in data gathered from private
data-mining companies like Lexis-Nexis, that has previously admitted
revealing altogether too much information to the lawyers and law
enforcement agencies that access its database.
In late 2003, the Bush administration reversed a
long-standing policy requiring agents to destroy their files on innocent
American citizens, companies and residents when investigations closed.
Late last month, President Bush signed Executive Order 13388, expanding
access to those files for "state, local and tribal" governments and for
"appropriate private sector entities," which are not defined.
Assuming that these records that are being accessed can
properly be defined as "papers and effects" subject to Fourth Amendment
protections, it would appear that the Fourth Amendment is flagrantly
violated by this practice, because this hallowed Constitutional provision
prevents the issuance of search warrants without probable cause to believe
that the target of the search warrant is engaged in criminal activity.
Certainly the records of who you talk to, exchange email with, or receive
emails from, are entitled to privacy protection, and would not have been
coughed up by any information service provider without a subpoena or
warrant issued “on probable cause.” Considerably less is required to
stimulate the issuance of a National Security Letter that will achieve the
same effect.
Senior FBI officials acknowledged in interviews that
the proliferation of national security letters results primarily from
the bureau's new authority to collect intimate facts about people who
are not suspected of any wrongdoing.
Thus the FBI, an organization that cannot even get a
computer system up and running after spending $170 Million dollars on the
project through Strategic Applications International Corporation ("SAIC"),
has turned its ineptitude into an excuse for further invasions of privacy.
Unable to even translate the Arabic language communications that the FBI
has been intercepting for the last decade, the agency has apparently
turned its efforts to spying on us, because they can read English. This is
a lot like the man crawling around on the ground looking for a key under a
streetlamp, who when asked by a friend why he is looking there, responds,
"Well, I lost it in the house, but there's more light out here." Well, the
Saudis are said to have bombed our country, killing thousands, but we sure
wouldn't want to try spying on the Saudis — you know they speak a
different language!
Criticized for failure to detect the Sept. 11 plot,
the bureau now casts a much wider net, using national security letters
to generate leads as well as to pursue them. Casual or unwitting contact
with a suspect — a single telephone call, for example — may attract the
attention of investigators and subject a person to scrutiny about which
he never learns. A national security letter ... yields [data that
reveals] where a person makes and spends money, with whom he lives and
lived before, how much he gambles, what he buys online, what he pawns
and borrows, where he travels, how he invests, what he searches for and
reads on the Web, and who telephones or e-mails him at home and at work.
The sunset provision on this useless and intrusive
system of domestic spying will reduce the use of NSL's at the end of this
year, unless Congress renews it. Always demanding a mile when the time is
up to return their borrowed inch, the privacy invaders plan on using the
renewal requirement as a means to advance their citizen-scrutinizing
agenda further. Congress is poised to increase the power of FBI agents
delivering NSLs. New legislation assures that intimidating G-men will now
come pre-armed with the right to arrest those who refuse to disclose
information, like the Connecticut library employee. Spill the beans or go
to jail will become the rule. As the Judith Miller case shows, courts are
increasingly willing to jail people to extract information, so a law
criminalizing noncompliance with secret information requests could lead to
more secret internments, an expansion of secret CIA torture cells, and
other foreseeable acts of State-sponosored-terrorism against private
citizens. Congress is thus planning to grant the FBI, a rogue agency that
squanders tremendous amounts of money and accomplishes nothing except
intimidating people, more power to intimidate.
In fact, as the Dec. 31 deadline approaches and
Congress prepares to renew or make permanent the expiring provisions,
House and Senate conferees are poised again to amplify the FBI's power
to compel the secret surrender of private records. The House and Senate
have voted to make noncompliance with a national security letter a
criminal offense. The House would also impose a prison term for breach
of secrecy.
Congress, of course, is proceeding on faith that the FBI
knows what it is doing with all this data on non-criminal activity. A
strange assumption, however, since the FBI is simply out to lunch for all
ordinary investigative purposes. Have you ever tried to report a crime to
the FBI if you're not a bank with a robbery on its hands? You get an
answering machine and no call back. Of course, call and say that your
neighbor got drunk and said he wanted to kill Bush and they'll just drive
a SWAT team up to his house and blow it up. After Ruby Ridge and the Waco
massacre, who could say that these are people to trust? Congress, still in
the throes of its drive to stamp out all remaining civil liberties left
intact after the enactment of the “Patriot Act,” that’s who!
Like many Patriot Act provisions, the ones involving
national security letters have been debated in largely abstract terms.
The Justice Department has offered Congress no concrete information,
even in classified form, save for a partial count of the number of
letters delivered.
And of course, like only Nixon could go to China, only a
conservative has the moxie to take aim at this policy. Where are Charles
Schumer, Diane Feinstein, Teddy Kennedy, Barbara Boxer, Hillary Clinton,
Charles Rangel, and all the other alleged liberals? Let's hear it for the
paranoid Right!
"The beef with the NSLs is that they don't have even a
pretense of judicial or impartial scrutiny," said former representative
Robert L. Barr Jr. (Ga.), who finds himself allied with the American
Civil Liberties Union after a career as prosecutor, CIA analyst and
conservative GOP stalwart. "There's no checks and balances whatever on
them. It is simply some bureaucrat's decision that they want
information, and they can basically just go and get it."
The FBI's head lawyer Valerie Caproni is entirely
cavalier about the power her agency wields, expressing zero concern over
the fact that these secret information demands on citizens have
proliferated into use as a “routine tool.” Bet you a nickel she's a
Democrat and hopes for a chance to vote for Hillary.
"If you have a list of, say, 20 telephone numbers that
have come up . . . on a bad guy's telephone," said Valerie E. Caproni,
the FBI's general counsel, "you want to find out who he's in contact
with." Investigators will say, " 'Okay, phone company, give us
subscriber information and toll records on these 20 telephone numbers,'
and that can easily be 100." ... Since the Patriot Act, the FBI has
dispersed the authority to sign national security letters to more than
five dozen supervisors — the special agents in charge of field offices,
the deputies in New York, Los Angeles and Washington, and a few senior
headquarters officials. ... "Congress has given us this tool to obtain
basic telephone data, basic banking data, basic credit reports," said
Caproni, who is among the officials with signature authority. "The fact
that a national security letter is a routine tool used, that doesn't
bother me."
The FBI uses absurd, circular reasoning to eliminate the
need for any probable cause to believe that the subject of an NSL
investigation is actually involved in criminal conduct. Of course,
terrorism is the boogieman whose face is used to bamboozle us into
accepting this non-logic.
If agents had to wait for grounds to suspect a person
of ill intent, said Joseph Billy Jr., the FBI's deputy assistant
director for counterterrorism, they would already know what they want to
find out with a national security letter. "It's all chicken and egg," he
said. "We're trying to determine if someone warrants scrutiny or
doesn't."
Mr. Billy, a budding spinmeister if ever there was one,
smarmily reassures us that the FBI exercises their power under
bureaucratic protocols that assure citizens their Fourth Amendment Rights
are being violated according to the rules.
Innocent Americans, he said, "should take comfort at
least knowing that it is done under a great deal of investigative care,
oversight, within the parameters of the law."
I did say the NSLs were useless, correct? As the Gospel
says, "By their fruits ye shall know them." Well, NSLs have produced no
fruit except the invasion of privacy:
As the Justice Department prepared congressional
testimony this year, FBI headquarters searched for examples that would
show how expanded surveillance powers made a difference. Michael Mason,
who runs the Washington field office and has the rank of assistant FBI
director, found no ready answer."I' d love to have a made-for-Hollywood
story, but I don't have one," Mason said. "I am not even sure such an
example exists."
Of course, dispensing with a need for probable cause
permits FBI agents a lot of leeway to just fire away into the darkness of
their own ignorance:
A model request for a supervisor's signature,
according to internal FBI guidelines, offers this one-sentence
suggestion: "This subscriber information is being requested to determine
the individuals or entities that the subject has been in contact with
during the past six months."
Defenders of NSLs use the tried and tested method of
shifting the burden to the opponents to "show abuses" of the policy:
Sen. Pat Roberts (R-Kan.), chairman of the Senate
Select Committee on Intelligence [said] "there has not been one
substantiated allegation of abuse of these lawful intelligence tools."
When we're talking about nullifying the Fourth
Amendment, the shoe should be on the other foot, and the bonehead
insistence that no one is harmed by NSLs is ridiculous. Listen to this
appartchik who is collecting a Fedeal Treasury paycheck to engage in
disinformation that might convince an idiot or a Congressperson:
To Jeffrey Breinholt, deputy chief of the Justice
Department's counterterrorism section, the civil liberties objections
"are eccentric." Data collection on the innocent, he said, does no harm
unless "someone [decides] to act on the information, put you on a no-fly
list or something."
How stupid can you get? If a Man In Black shows up at
your small town Internet Service Provider with am NSL in his hand and
demands a record of all your email and online purchases, and tells them
not to tell anyone, do you think that is a routine thing that causes you
no harm? Suppose they go to the Video Store, the Library, the Utility
Department and Adult and Family Services to get their records, too. This
causes no harm? Have they forgotten that in Texas, the standard method of
killing a political campaign is just to leak that there's an "FBI
Investigation" in the works? Give me a XXX-ing break! As usual, it takes a
true conservative to say what is obvious to any lawyer with a
Constitutional bone in his or her body:
Barr, the former congressman, said that "the abuse is
in the power itself." "As a conservative," he said, "I really resent an
administration that calls itself conservative taking the position that
the burden is on the citizen to show the government has abused power,
and otherwise shut up and comply."
The ACLU, of course, finds it hard to formulate a sound
bite that will resonate with the regular folks, adhering to the
media-speak that fills their coffers with donations from the politically
correct. Pursuing a typically mediacentric agenda, the ACLU focuses on the
"chilling effect" of domestic spying on wide-open media consumption.
At the ACLU, staff attorney Jameel Jaffer spoke of
"the profound chilling effect" of this kind of surveillance: "If the
government monitors the Web sites that people visit and the books that
they read, people will stop visiting disfavored Web sites and stop
reading disfavored books. The FBI should not have unchecked authority to
keep track of who visits [al-Jazeera's Web site] or who visits the Web
site of the Federalist Society."
Considerably more is at issue here than Mr. Jaffer
identifies from his media-centric perch. Citizens are being
ratted out by the providers of information services, who are
giving up electronic records that in years past would have been written on
a paper, stored in the citizen’s own file drawers, and clearly protected
by the Fourth Amendment. The sun should set on this vehicle for invading
the data-vaults to obtain information about who is communicating with
whom. The FBI is amassing data on innocent people,
and it is plain stupid to think they will never use it to suppress
political dissent. In fact, the reverse assumption is the only one
supported by the evidence. J. Edgar Hoover operated the FBI as a factory
for political blackmail, conducting extensive spying operations on, among
others, Ralph Nader, John F. Kennedy, his brother RFK, and Martin Luther
King. The file on Dr. King got so large that after the FBI coughed it up
in response to a Freedom of Information Act request, it was turned into
what many say is an engrossing book. However, we can be sure that is not
why J. Edgar Hoover amassed the data, and in a democracy, we have other
ways of producing historical biographies.
As the remainder of the article in WAPO makes clear,
NSLs for your information may already be out there, trolling for data on
you, if you ever get a phone call or communicate with someone the FBI
calls "a bad guy." Does that include getting emails from Scooter Libby or
Karl Rove? If so, I see a vast use for NSLs right in the Washington DC
area. Of course, Mr. Fitzgerald, the Rovegate Prosecutor, is probably too
much of a "straight shooter" to use NSLs on the nation's top criminal
organization. Just wouldn't be prudent, as old George the First was fond
of saying.
For a closing thought to feed your nightmares, just
consider this little spoof that some smart criminals are probably already
using, or will be, once this new method of privacy invasion is adopted by
skilled forgers. Create fake National Security Letters requesting data on
people about whom you either want information, or wish to destroy through
silent, malicious gossip. Put the Stars and Stripes and the FBI logo,
which you can screen-cap right off their website, on the letterhead, but
have the return address go back to your own pseudo-FBI office and private
phone number. The recipient of the phony NSL can't talk to anyone about
the bona fides of the document, and the local FBI office will not take or
return calls about secret investigations, so you should be able to get all
the information you want about anyone, and silently destroy their
reputation using this method. I predict that the first person to get
caught doing this will be an ex-FBI agent. Sorry to tell you, but if you
search Google for this string — "FBI agent convicted" — you get a lot of
hits.
But please don't tell anyone I told you that laws that
give government total authority will be abused by people impersonating
government. I think that's supposed to be a secret.
Return to
Table of Contents
|