I’ve got a new story at Ars about the DOJ inspector general’s damning report on the FBI’s use of “national security letters” :
The defenders of the Patriot Act have been quick to emphasize that the report found no evidence of malice or intentional lawbreaking in the use of NSLs. This is true. By all accounts, the problems OIG found were the result of honest mistakes on the part of FBI officials. No examples were found of FBI agents using NSLs to spy on their ex-girlfriends or blackmail their enemies. However, OIG teams only audited 293 letters out of tens of thousands that have been issued since the Patriot Act has become law. It’s quite possible that a complete audit of NSLs would uncover deliberate lawbreaking. And given the inadequate record-keeping procedures, it’s far from certain that even a comprehensive audit would uncover unlawful behavior.
Moreover, the argument for judicial review does not hinge on the assumption that government officials are corrupt. Aggressive widespread use of coercive powers by well-meaning but overzealous officials can undermine American’s privacy rights just as effectively as actual corruption. Law enforcement agencies can make honest mistakes. Judicial review ensures that they do their homework before seeking to invade Americans’ privacy. And even if today’s FBI is honest—and the OIG report gives no reason to doubt that it is—that does not prove that a future administration couldn’t use its powers under the Patriot Act for nefarious purposes. One only has to remember the FBI’s abuses of power under J. Edgar Hoover in the 1960s to realize that this is more than a theoretical possibility.
One of the striking things I learned in doing the research for this article is just how shoddy the preparation of the Patriot Act was. It allowed the FBI to issue NSLs and made it illegal for recipients to mention them to “any person.” Not mentinoed by the statute was (1) whether recipient were allowed to consult a lawyer about the letter, (a lawyer would seem to be “any person” after all) (2) whether the recipient was allowed to disclose the letter to those whose assistance was required to comply with the letter, (3) what the process for challenging an improperly issued NSL is–or whether such an appeal was even permitted, (4) what the punishment was for failing to comply with an NSL or disclosing its existence to others, and (5) what the FBI was entitled to do if an NSL was ignored. The result is that someone receiving an NSL was cast into legal pergatory—without any clear guide to his rights under the law. (Some of these defects were dealt with in the 2005 Patriot Act reauthorization) Maybe some of those problems would have been caught and corrected if Congress had spent more then 48 hours considering the legislation.