Sunday, May 15, 2011

License to Intrude, Part 1

We begin with the first part of a report entitled Domestic Intelligence: New Powers, New Risks by Emily Berman. I don't see a date for the report anywhere, but some of the footnotes reference sources from 2010, so the report is reasonably recent. This is a long excerpt, but please read the whole thing.

Executive Summary

Successful domestic counterterrorism policy is vital to keep the homeland safe. In this effort, policymakers must resist the oft-exhibited tendency to overreact to the threats we face. This overreaction, time and again,1 takes a similar form: In the face of a perceived existential threat, we expand the scope of the government's powers while simultaneously diminishing oversight of and accountability for the use of those powers. We fail to ensure that these powers will be employed in a manner consistent with our fundamental values. Civil liberties — such as privacy and freedom of expression, association, and religion — are often curtailed. In the wake of 9/11, government action exhibited this tendency across a wide range of counterterrorism policies.

To his credit, President Obama acknowledged this overreaction in several areas, implementing much-needed modifications to inherited policies, which improved procedural protections, guarded against civil liberties violations, and increased transparency. But in many respects, the Obama Administration's counterterror efforts resemble those of the Bush Administration's second term. This is especially true in the context of countering domestic terrorism threats.

One key example: The Obama Administration's choice to rely upon rules drafted by its predecessor to increase the FBI's authority for domestic investigations, including probes into terrorist threats. We believe these rules, known as the Attorney General's Guidelines for Domestic FBI Operations ("Attorney General's Guidelines" or "Guidelines"), tip the scales too far in favor of relatively unchecked government power, allowing the FBI to sweep too much information about too many innocent people into the government's view. In so doing, they pose significant threats to Americans' civil liberties and risk undermining the very counterterrorism efforts they are meant to further.

And while some may doubt the severity of these threats, nobody can argue that such broad powers in the hands of government officials should not be monitored regularly to ensure that they are not being abused.

The Guidelines, implemented by Attorney General Michael Mukasey in December 2008, are considerably more permissive than earlier versions implemented by previous Attorneys General. This permissiveness raises two concerns. First, the Guidelines expand the FBI's discretion to investigate individuals and groups while simultaneously limiting oversight requirements and thereby risk opening the door to invasions of privacy and the use of profiling on the basis of race, ethnicity, religion, national origin, or political ideology. In so doing they also risk chilling constitutionally protected activities. Second, the Guidelines could render the FBI's counterterrorism efforts less effective. Some perceive investigations under these Guidelines to impact disproportionately the freedom of expression and association of law-abiding members of certain groups. This perception risks undermining any otherwise beneficial aspects of the Guidelines by alienating the very communities whose cooperation is most essential. Moreover, the sheer volume of information collected raises the concern that it will elude meaningful analysis.

The Mukasey Guidelines significantly loosen the restrictions on the FBI's investigative powers that had been in place for decades - restrictions that remained even in the Guidelines implemented by Attorney General John Ashcroft in the wake of 9/11 - in the following ways:

1. They authorize "non-predicated" investigations — substantive investigative activity in circumstances in which there is no "information or . . . allegation indicating" wrongdoing or a threat to national security.2
2. They permit intrusive investigative techniques — such as using informants, conducting interviews under false pretenses, and engaging in unlimited physical surveillance — during non-predicated investigations.
3. They encourage the government to collect, retain, and disseminate vast amounts of information about law-abiding individuals.
4. They weaken procedural safeguards — eliminating or reducing many of the requirements for supervisory approval of particular investigative techniques and temporal limits on investigative activity — that have been integral to the Guidelines' regime since it was first implemented in 1976.

These changes are not merely cosmetic. They grant the FBI license to employ intrusive techniques to investigate Americans when there is no indication that any wrongdoing has taken place. This means that FBI agents can collect and retain vast amounts of information, much of it about the innocent activities of law-abiding Americans. And it can then retain that information indefinitely and share it with other government agencies. It is thus crucial to ensure that sufficient limits, as well as meaningful internal and external checks, are imposed on this power.

I hope you read that passage carefully, and absorbed its meaning. Please read the entire report: Domestic Intelligence: New Powers, New Risks.

One important means of collecting information on innocent Americans is the use of so-called National Security Letters (NSL's). We review Rise in FBI use of national security letters, dated May 9, 2011:

WASHINGTON — The number of people the FBI targeted with national security letters more than doubled last year to more than 14,000.

The letters enable the bureau to collect a large amount of sensitive information like financial and phone records in terrorism and espionage investigations. In 2007, the Justice Department's inspector general found widespread violations in FBI use of the letters, including demands without proper authorization and information obtained in non-emergency circumstances. The FBI has tightened oversight of the system. The letters are controversial because there is no court scrutiny of the process.

In a summary to Congress, the Justice Department said the FBI made 24,287 national security letter requests last year for information regarding 14,212 people. That's up from 2009 when there were 14,788 requests for information about 6,114 people.

In other words, by taking a short-cut around the Fourth Amendment, government agents can present an NSL, instead of a warrant, to get information they want. And, as we have seen from the report excerpt above, there need be no information or allegation suggesting that wrongdoing has actually occurred or that there is a threat to national security.

If you would like a great deal of reading on this subject, I suggest you review the Department of Justice Office of the Inspector General reports entitled A Review of the Federal Bureau of Investigation's Use of National Security Letters, dated March, 2007; A Review of the FBI's Use of National Security Letters: Assessment of Corrective Actions and Examination of NSL Usage in 2006, dated March, 2008; and A Review of the Federal Bureau of Investigation's Use of Exigent Letters and Other Informal Requests for Telephone Records, dated January, 2010.

It is interesting to have this background as we consider President Obama's recent visit to Facebook (for example, addressed in Obama jabs Republicans at Facebook town hall dated April 20, 2011).

Facebook is an interesting organization. One of the key people in Facebook's current corporate structure is the COO who had previously worked for Google, Sheryl Sandberg. A recent feature story entitled Why Facebook Needs Sheryl Sandberg, May 12, 2011, gives a great deal of pertinent background.

The article paints a picture of a very well-qualified COO, who is a caring and concerned person, well-liked by associates. From Page 4:

At Harvard, Sandberg organized her dorm into a cohesive social unit and assembled a group to encourage more women to major in economics and government. In 1991 she caught the eye of economics professor Lawrence Summers by scoring the highest on a midterm exam, and he agreed to be the adviser on her thesis—on the correlation of domestic violence against women and socioeconomic status. Sandberg recalls that in completing that project, she ran so much data on the Harvard University Science Center computers that she crashed the system, more than a decade before another student, Mark Zuckerberg, would notch the same achievement. In Sandberg's case, network administrators called Summers to complain, and he in turn hired her after graduation to join him at his new post as chief economist of the World Bank.

Summers says Sandberg proved herself quickly, in part by researching a question that someone had raised idly—whether 70 years of Communism could have been avoided if someone had financed the Russian politician Alexander Kerensky. "She came back six hours later, analyzing the merits of this thesis," says Summers, who calls her "a remarkable person." (Sandberg reports that she simply picked up the phone and asked Harvard professor Richard Pipes.)

After two years at the World Bank, working on poverty-related issues and touring leper colonies in India, Sandberg joined Summers at the Treasury Dept. She later became his chief of staff after he was promoted to Treasury Secretary.

Sandberg's credentials are impressive, indeed (although being a little suspicious of the World Bank and then the Clinton Administration, I wonder if those credentials should count exclusively in the "plus" column).

As an example of Sandberg's efforts to help others, we have, from Page 6:

Beyond Facebook, the other social network that Sheryl Sandberg has been fervently scaling is her own. Every few weeks a few dozen Silicon Valley women—doctors, teachers, and techies—head to the seven-bedroom Atherton (Calif.) mansion Sandberg shares with her husband, Dave Goldberg, chief executive of Web startup SurveyMonkey, and their two kids. The group sits on foldout chairs in the living room and holds plates of catered food on their laps as they listen to a guest speaker.


Last year a guest speaker at one of Sandberg's home soirees was Cambodian human trafficking activist Somaly Mam. After she discussed her work and shared her personal history of being sold into slavery at a young age, Sandberg stood up and announced her intention to hold a fundraiser for the Somaly Mam Foundation and asked how many of her friends would join her. Everyone volunteered. The fundraiser, held at the Hiller Aviation Museum in San Carlos, Calif., in November, raised more than a million dollars for the foundation, a third of the organization's annual contributions.

If a fraction of what is in this article about Sandberg is true, then she is one impressive person.

We consider another excerpt from Page 6, right in the part where the snip is in the quote above:

Over the years, Sandberg has lured such luminaries as Geena Davis, Billie Jean King, Rupert Murdoch, Meg Whitman, and Senator Kirsten Gillibrand (D-N.Y.). Robert Rubin, the most recent guest, said that 15 years ago when he was Treasury Secretary, it was good for Sheryl Sandberg that she knew him. Now, he quipped, it was good for him that he knows her.

Among those who support "conservative" causes, you will hear disparaging remarks regarding "liberals" and their intelligence or their honesty. I think these remarks are often (though not always) unfair. Politicians in Washington, on both sides of the aisle, sell out their causes and constituencies to the highest bidder; not all of them, but certainly too many.

However, on both sides of the aisle, the people who put them there are often intelligent, hard-working, and kind, legitimately concerned about what is going on in their country and in the world. Certainly, Sandberg seems to fit this description.

Sandberg worked as an appointee in the Clinton Administration, and had a Democrat US Senator (Kirsten Gillibrand) from New York as a speaker at one of her evening events. It is perhaps not surprising she is a big supporter of Democrat causes and candidates, including Senator Gillibrand and Hillary Clinton, when Clinton was running for President.

Her husband is also a big supporter of Democrats.

In light of all of this, it seems to me a big part of the Facebook visit may have been just plain fundraising for Obama's re-election; or, at the very least, maintaining contact with key donors and key organizers. And, though I disagree vehemently with President Obama's politics and question his honesty and his dedication to our country, I must point out that there is nothing wrong with Constitutionally-protected political activity. Indeed, I wish more Americans were more concerned, more informed, and more involved than they are.

However, Constitutionally-protected political activity is exactly my concern here.

Though Facebook appears to take the privacy of its customers very seriously, what would be the response if government agents presented national security letters or other types of exigent letters, seeking personal information about Facebook account holders? With the law and current bureaucratic guidelines on their side - despite the fact that many consider the laws and guidelines to be violations of our Constitutionally-protected rights - who would be able to successfully oppose such intrusive requests from government agents? And then, how hard would executives fight a request coming from the Administration of a President that those executives helped elect, and therefore presumably believe in?

Chicago-style politics could easily overcome honest and perhaps trusting corporate executives, and, in a situation reminiscent of Bill Clinton's FBI Filegate scandal, one could easily imagine national security being the justification offered to compile an "enemies list" going in to the 2012 election season - complete with gag orders, keeping all who know about what is going on under threat of imprisonment without trial if they should discuss the matter.

The change we were promised in 2008 has turned out to be an increased erosion of our rights and liberties, an increased oppression by corrupt government officials, and increased abuse of powers, as federal agents work for corrupt superiors who uphold their license to intrude into our lives.

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