The American Stasi

You may recall that the FBI has recently been found to have abused one of its Patriot Act powers by issuing National Security Letters (essentially subpoenas but without the piddling detail of court approval) without following even the very loose requirements of the Act. Between 2003 and 2005 the FBI issued over 140,000 of them.

I'd like to highlight a fascinating letter in today's Washington Post written by a person who was issued one of those letters, someone who remains anonymous, because, like all such persons, he continues to be compelled to refrain from revealing his identity because of a gag order forbidding him to reveal any details of the situation to anybody.

Three years ago, I received a national security letter (NSL) in my capacity as the president of a small Internet access and consulting business. The letter ordered me to provide sensitive information about one of my clients. There was no indication that a judge had reviewed or approved the letter, and it turned out that none had. The letter came with a gag provision that prohibited me from telling anyone, including my client, that the FBI was seeking this information. Based on the context of the demand -- a context that the FBI still won't let me discuss publicly -- I suspected that the FBI was abusing its power and that the letter sought information to which the FBI was not entitled.

Given his doubts, Mr. Doe went to the ACLU who took up his case, with the effect that he never complied to the NSL, which, um, request, has since been dropped after all. It seems that Mr. Doe's potential information wasn't quite so vital to national security after all.

Most interesting to me are the effects of the gag order under which Mr. Doe continues to toil.

Living under the gag order has been stressful and surreal. Under the threat of criminal prosecution, I must hide all aspects of my involvement in the case -- including the mere fact that I received an NSL -- from my colleagues, my family and my friends. When I meet with my attorneys I cannot tell my girlfriend where I am going or where I have been. I hide any papers related to the case in a place where she will not look. When clients and friends ask me whether I am the one challenging the constitutionality of the NSL statute, I have no choice but to look them in the eye and lie.

I resent being conscripted as a secret informer for the government and being made to mislead those who are close to me, especially because I have doubts about the legitimacy of the underlying investigation.

In the bad old days of the cold war the East German secret police (Stasi) were infamous for their penetration into the everyday lives of their comrades.

Their effectiveness was based in large part on their use of "Unofficial collaborators", by the end of the cold war employing over 300,000 of these citizen spies.

It's not clear to me how many of these spies were willing collaborators and how many were coerced by the Stasi to co-operate.

But it is certainly a sad commentary on the present state of affairs that the FBI's behavior bears such a startling similarity to that of the dreaded Stasi.

Inherent abuse of power by the FBI

I suppose some folks out there will be shocked that when given the power to access private information without court oversight the FBI, you'd better sit down now, abused that power.

A Justice Department investigation has found pervasive errors in the FBI's use of its power to secretly demand telephone, e-mail and financial records in national security cases, officials with access to the report said yesterday.

The inspector general's audit found 22 possible breaches of internal FBI and Justice Department regulations -- some of which were potential violations of law -- in a sampling of 293 "national security letters." The letters were used by the FBI to obtain the personal records of U.S. residents or visitors between 2003 and 2005. The FBI identified 26 potential violations in other cases.

Officials said they could not be sure of the scope of the violations but suggested they could be more widespread, though not deliberate. In nearly a quarter of the case files Inspector General Glenn A. Fine reviewed, he found previously unreported potential violations.

And not only does the IG not know how widespread the violations were (remember his report was based on a sampling), but the particulars of some of the vioaltions were particularly troubling.

But [Inspector General] Fine found that FBI agents used national security letters without citing an authorized investigation, claimed "exigent" circumstances that did not exist in demanding information and did not have adequate documentation to justify the issuance of letters.

In other words, the FBI used these National Security Letters in cases that didn't involve national security, as well as in cases where the matters being investigated were not really so urgent as to require warrantless investigation.

And while the FBI director is blaming the violations on a failure to follow internal policies I would suggest that such failures are inherent when government agents are able to act without judicial oversight.

People are people and they are by varying degrees zealous, clever, and lazy. And so are FBI agents.

By allowing what are essentially extrajudicial search warrants, the Patriot Act provisions which allow the use of national security letters invite abuse.

And if a power can be abused, it will be. Absent some countervailing force that is. This is why we have three branches of government, so they can keep an eye on each other.

So when in a fit of fear, like, say 9/11, we foolishly remove such oversight, why be shocked when such abuse occurs?