Thought Theater

FBI: Muddying The "Water" And Breaching The "Gate"? genre: Six Degrees of Speculation

In the aftermath of Watergate, executive authority was diminished as it was determined that unbridled access to the ability to monitor and engage in unwarranted surveillance of U.S. citizens was far too tempting.

Under the Bush administration, the threat of terror allowed the executive branch to once again assert its authority to eavesdrop on phone calls in order to keep us safe. Despite the passage of the Foreign Intelligence Surveillance Act in 1978, the Bush administration managed to enact measures that circumvented FISA oversight (the NSA controversy).

The Vice President, Dick Cheney, has been a staunch supporter of expanded executive power...contending that the post Watergate measures stripped necessary power from the president in an over reaction to the acts of a few over zealous individuals. Cheney's own actions with regard to executive privilege have been the source of controversy...including his refusal to disclose the energy executives he met with during the first Bush term and his recent instruction to keep private the list of visitors to his residence.

Well, as many predicted, the abuse of power under the expanded authority is coming home to roost once again. In a recent audit, it was determined that the FBI may have abused the guidelines or violated the law when collecting information from phone calls, emails, and financial transactions.

An internal FBI audit has found that the bureau potentially violated the law or agency rules more than 1,000 times while collecting data about domestic phone calls, e-mails and financial transactions in recent years, far more than was documented in a Justice Department report in March that ignited bipartisan congressional criticism.

The new audit covers just 10 percent of the bureau's national security investigations since 2002, and so the mistakes in the FBI's domestic surveillance efforts probably number several thousand, bureau officials said in interviews. The earlier report found 22 violations in a much smaller sampling.

The vast majority of the new violations were instances in which telephone companies and Internet providers gave agents phone and e-mail records the agents did not request and were not authorized to collect. The agents retained the information anyway in their files, which mostly concerned suspected terrorist or espionage activities.

But two dozen of the newly-discovered violations involved agents' requests for information that U.S. law did not allow them to have, according to the audit results provided to The Washington Post. Only two such examples were identified earlier in the smaller sample.

FBI officials said the results confirmed what agency supervisors and outside critics feared, namely that many agents did not understand or follow the required legal procedures and paperwork requirements when collecting personal information with one of the most sensitive and powerful intelligence-gathering tools of the post-Sept. 11 era -- the National Security Letter, or NSL.

"The FBI's comprehensive audit of National Security Letter use across all field offices has confirmed the inspector general's findings that we had inadequate internal controls for use of an invaluable investigative tool," FBI General Counsel Valerie E. Caproni said. "Our internal audit examined a much larger sample than the inspector general's report last March, but we found similar percentages of NSLs that had errors."

While the reported voilations do not currently appear to have been blatant abuses of power, keep in mind that the audit reviewed just ten percent of the NSA investigations conducted. My cynical nature leads me to wonder who determines which files will be reviewed and just how difficult it may be to cherry pick files that do not contain the worst abuses. Even worse, isn't it possible that some files disappear or are created and held outside the auspices of scrutiny?

Perhaps the integrity of our elected officials is on the rise despite the obvious indications to the contrary. Maybe the long list of questionable actions on the part of the Bush administration is no reason for alarm. Notwithstanding, I find myself feeling more comfortable with the skepticism that was instituted post Watergate than I do with the expanded powers enacted post 9/11.