Here we go again. Another green light goes out and the little guys are left holding the bag. It was guaranteed to happen and why I decided to turn my final e-mail to all the FBI agents in the Minneapolis Division into one final warning before I retired and walked out the door the last day of December, 2004.
It would be great if someone could dig my farewell e-mail message out of the FBI's Super Computer Server just to compare what I warned about with yesterday's National Security Letter (NSL) scandal headlines "FBI Violations May Number 3,000 Official Says." I don't remember my exact words, but instead of any teary-eyed farewell that last day, the ole' legal & ethics lecturer in me (what I had done for the prior 13 years) took over. I know I warned them all one last time that green lights always go out; that the head honchos who turn on the green light are never to be found when it goes out; that the bosses will even deny they ever turned the green light on and that the little guys are always the ones left to take the blame when the real light comes back on.
It would be interesting if the FBI's Super Computer Server could determine how many recipients deleted my warning without reading.
Quite a few already knew. The "FBI's gross overreach" as Rep. Sensenbrenner hypocritically terms it now was already obvious to many insiders by early 2003. Already the series of "orange alerts"; FBI Director Mueller's "no tip will go uncovered" policy; the diversion of about half all FBI manpower to covering terrorism leads; and our knowledge about the shocking departures from established legal principles that were taking place in the Administration's "war on terrorism" had many of us whispering and worried. The Department of Justice Inspector General (IG) had yet to issue his first big criticism of the FBI for its post 9-11 "round-up" detention of innocents but already some self-criticism about the risk of playing "Keystone Cops" had surfaced. In April 2004, I wrote an editorial for Time Magazine (which I can't imagine was not shown to the FBI Director) entitled, "What the FBI Needs and Doesn't Need" warning about this over-collection of data:
Everyone acknowledges that it is only useful intelligence that counts. Gathering troves of information on people just clutters the picture and (besides upsetting innocent folks) makes connecting the dots harder. Quality trumps quantity. Homing in on known terrorists, for example, through well-placed confidential sources or possibly by electronic surveillance is what's called for, not simply more indiscriminate use of these intrusive techniques across the board.
In mid 2004, the 9-11 Commission Report came out recognizing, through 3 of its 41 recommendations, that a need existed to create an independent Privacy and Civil Liberties Oversight Board. Certainly the Inspector General's belated findings of NSL fishing expeditions shouldn't be such a surprise. (By the way, a really exhaustive and accurate summary of the recent IG Report can be found by clicking the ACLU's "Roadmap" by former FBI Special Agent Mike German.) Although one had to push the envelope after 9-11 to alert the wider public and appropriate civil liberties groups of the potential problem, it could not have been much of a secret in the government what was going on. My goal was always to keep the little guys from getting caught up in this terrible green light and then being blamed when it went out. My goal was also to keep the pendulum from swinging so widely back and forth which helps neither the security nor the civil liberty side of the equation.
The part that is SO frustrating in all this is to see the pendulum swing back and forth with almost no one trying to honestly assess and address what went wrong. It's especially distressing to see the IG blame the little guys in the field offices when the primary blame should be squarely placed on those in the beltway. In short, the answer does NOT lie in putting approval levels with FBI Headquarters officials in Washington D.C. who tend to be the most careerist and thus are most susceptible to politicization. Folks, that's what caused this problem! All of the horrible green lights have originated from the seat of power. Just as little Lynndie England and other prison guards' derelict actions at Abu Ghraib stemmed in some measure from Defense Secretary Rumsfeld's green light, FBI field agents getting carried away with obtaining records by executing over 200,000 NSL requests since 9-11 is the direct result of a similar green light stemming from the massive data collection and "no tip will go uncovered" dictums of the FBI Director and other high-level intelligence officials in Washington D.C. (In all fairness, the Bush Administration's botching of other aspects of their "war on terrorism" i.e. namely the invasion of Iraq, which has served to increase the threat, has not made the job of the FBI an easy one. And probably Bush and his GOP rubberstamps would like nothing better than to divert blame from themselves now by making the entire FBI their fall guy. It wouldn't be the first time.)
Rep. James Sensenbrenner (R-Wis.) expressed surprise at how widespread the use of national security letters had become, asking: "Do we have that many potential terrorists running around the country? If so, I'm really worried." Sensenbrenner astutely spotted the real issue but one has to wonder how he could have been that surprised when the FBI's massive data collection policies originated only a few blocks away from his seat on the Hill and when FBI Director Mueller made little secret of what the FBI was doing to implement Bush mandates to prevent all acts of terrorism. In other words, Rep. Sensenbrenner had to have known that the green light was on. For starters, you'd think congresspersons like Sensenbrenner could have exercised better oversight themselves and not have allowed President Bush to gut the Privacy and Civil Liberties Board.