The Justice Department’s inspector general has prepared a scathing report criticizing how the F.B.I. uses a form of administrative subpoena to obtain thousands of telephone, business and financial records without prior judicial approval. The report, expected to be issued on Friday, says that the bureau lacks sufficient controls to make sure the subpoenas, which do not require a judge’s prior approval, are properly issued and that it does not follow even some of the rules it does have.
Attorney General Alberto Gonzales and FBI Director Robert Mueller have both made statements admitting the problem, and blaming it on inadequate internal rules, improper training, and “sloppiness” (listen to the NPR report here). And indeed, David Brooks, of the New York Times, says this in his NPR analysis:
I think what the IG said was that it was a result of sloppiness and poor training; it seems to be a matter of competence, not ideology. I mean, it's not a question of the underlying law, the PATRIOT Act being wrong, but it's the... the FBI was not very good at putting it into practice, at following the law. It was bureaucratic incompetence.
The problem here is that it's not just a question of sloppiness. It's not an issue of insufficient training. Mr Brooks is wrong on this point. It's not even a willful disregard for the law — this is very different from the “warrantless wiretapping”, in which the Bush administration went out of its way to ignore the law. The FBI is falling on its collective sword for the administration, but here's the thing:
This is a question of a bad law.
Law enforcement agencies are charged with “finding bad guys”, and they do it aggressively. As they should. Our laws that restrict their actions have been strict for a reason, and we must relax those strictures only with great care. Note the date on the USA PATRIOT Act, in the image above (click to enlarge): it was enacted just six weeks after 11 September 2001. It is 132 pages long. Great care was not taken, too many strictures were relaxed, and this report shows some of the results.
And it's thanks to the changes made in the act's recent renewal that we're even able to hear about this. Those of us who are critics of this law worried about this from the start. “Don't worry,” the supporters said, “It still has enough checks in it.” And after a while they started showing us its successes, the bad guys who were caught but who'd have escaped the net without the USA PATRIOT Act. They didn't tell us about the failures, of course, of the innocent people who were investigated, of the private information that was collected without probable cause. We “knew” that was there, but now, with this report, we know it's there. And it's better to let some criminals escape than to treat everyone like a criminal.
What we see here are unreined officials who are used to pulling on the reins of the system, pushing the limits and trying to stretch them, to get what they need. Without the reins, or with too-loose ones, the pulling is too easy — they can go pretty much anywhere they want, and, as we see, they do. Our laws have to find the balance between allowing the police the freedom to check up on us, and allowing us to live with the freedom, privacy, and protection from unwarranted scrunity and accusation that we want in our society. The USA PATRIOT Act upset the balance.
Mr Gonzales and Mr Mueller assure us that the problems within the FBI will be fixed. That may be good, but let's not use the FBI as a scapegoat for the USA PATRIOT Act. It is the latter that really needs fixing.
Update, 11 a.m.: BoingBoing has a link to a PDF of the full report (199 pages, 13 MB).