Surprise, surprise. The U.S. Justice Department's inspector general issued a scathing report earlier this month criticizing how the FBI abuses a form of administrative subpoena called "security letters" to obtain thousands of telephone, business and financial records in secret without prior judicial approval.
The report says that the FBI lacks sufficient controls to make sure the subpoenas, which don't require a judge's prior approval, are properly issued. According to this report, the FBI doesn't even follow the rules it does have.
Under the U.S. PATRIOT Act the bureau has issued more than 20,000 of these "national security letters." Far more then previously admitted, and the DOJ report concludes that the program lacks effective management, monitoring and reporting procedures. And we might add, this is evidence of wholesale violations of the Fourth Amendment of the Bill of Rights and the U.S. Constitution! (But does anyone care?)
Back in the days before the PATRIOT Act, these letters could only be issued to a very select group of individuals who were suspected of the very serious crime of espionage, defined as "spying to obtain secret government information." But the Act allows the letters to be used against anyone, including U.S. citizens, even if they are not suspected of espionage or any criminal activity.
Also, today FBI field offices are allowed to issue these letters independently. In the past, only senior FBI officials had this privilege. And unlike Section 215 warrants, they are not subject to even perfunctory judicial review or oversight. That's a system ripe for abuse. And it's finally being exposed (by some other critic than us).
In 2002, I reported that the FBI quietly had been asking offshore financial institutions to review their records for transactions involving scores of small businesses, organizations and people in the U.S., none of whom had been charged with any crime. The supposed object was to find terrorists and their cash. The use of these slipshod "security letters" marked a drastic change in the relationship between law enforcement and the financial industry. Financial institutions only used to surrender records to government agents, only after official proof of probable cause that a crime had occurred or was about to occur and after a search warrant was issued by a federal judge or magistrate.
And all these questionable government actions were and are kept secret because the PATRIOT Act also allows the FBI and other government police to hide what they're doing. The Act extends the power of government over personal and financial records of every kind. It also throws aside previous guarantees under the Fourth Amendment against unreasonable searches and seizures.
You Heard It Here First!
I predicted this would happen in a special report on the PATRIOT Act that I wrote in 2003 and revised recently.
There is no dispute that the PATRIOT Act makes it far easier for the FBI and even the U.S. Central Intelligence Agency (CIA) to obtain a person's financial, medical, student or other records. Under the Act, the FBI is given broad authority to obtain financial, medical, business, bookstore and library records, supposedly to pursue terrorist activities.
Instead of a normal "probable cause" search warrant, law enforcement authorities now don't need to show a judge or magistrate that evidence of wrongdoing likely will be found. And the custodians who hold records the government wants are prohibited, under threat of criminal prosecution, from informing anyone that their records were seized.
Section 215 of the Act allows the FBI to order any person or entity to turn over "any tangible things," so long as the FBI "specifies" that the order is "for an authorized investigation...to protect against international terrorism or clandestine intelligence activities."
This vastly expands former FBI powers to spy on ordinary people living in America, including U.S. citizens and permanent resident aliens. And now it appears the FBI has abused this unconstitutional police power, just as I and others predicted it would. Is anyone really surprised that secret police powers will be abused?
Records that can be obtained using the FBI letters include telephone logs, email logs, certain financial and bank records and credit reports. All the FBI has to say is that such information may be "relevant" to an ongoing terrorism investigation. Supposedly these letters cannot be used in ordinary criminal investigations.
Is This Constitutional?
Over more than two centuries, scores of U.S. Supreme Court cases have defined the constitutional rights embodied in the Fourth Amendment that prohibits government searches without a warrant and without a prior showing of probable cause. Up until the PATRIOT Act, police requests for search warrants had to be based on a reasonable belief that the person under investigation had committed or was about to commit a crime. Thus section 215 of the Act clearly violates the Fourth Amendment.
The truth is that the government really doesn't need these huge police powers. It already has authority to prosecute anyone it has probable cause to believe has committed, or is planning to commit, a crime. It also has the authority to engage in surveillance of anyone whom it has probable cause to believe represents a foreign power or is a spy, whether or not the person is suspected of any crime.
In my opinion, while destroying our liberty and privacy, these broad police powers have not increased measurably our national security or safety.
BOB BAUMAN, Legal Counsel
P.S. We at the Sovereign Society take personal privacy very seriously. And we hope you do, as well. Join our ranks today, and I'll throw in a FREE copy of my PATRIOT Act Report, a $30 value. To begin your risk-free subscription and protect yourself from the long-arm of 'Big Brother,' click here.