Violating the Law: The FBI in Operation


The Federal Bureau of Investigation has fallen into that nasty habit, perfected during the Bush years, of violating privacy laws and regulations with impunity. By its own admission to that toothless tiger, the Intelligence Oversight Board, the agency reported almost 800 violations. But this is only the tip of a gargantuan iceberg of abuse. According to the San Francisco-based Electronic Frontier Foundation (EFF), there may well have been somewhere upwards of 40,000 possible intelligence violations since the events of September 11, 2001. Patterns of Misconduct: FBI Intelligence Violations from 2001-2008 is certainly the kind of work that suggests that the republic and its liberties may be a work in retrograde. Read it, and feel troubled.

Valerie Caproni, the FBI’s general counsel, is nonplussed about the whole thing. The powder and cosmetics have come out – cover-up, anybody? Violations may well have occurred, she concedes, but there was nothing serious about them. ‘The number of substantive violations of someone’s rights is very small and we take them seriously’ (Washington Post, Jan 31). Submitting false or inaccurate declarations to courts, accessing password protected documents without a warrant and using improper evidence to obtain federal grand jury subpoenas must rank rather low in Caproni’s scale of law breaking.

The most grotesque bureaucracy is one that resorts to procedure as a permanent escape clause. Ideas of liberty go there to die without ceremony. Violating guidelines is simply a matter of technical import. For Caproni, ‘by and large, 99.9 percent of the time our agents are acting in compliance with the Constitution, the statutes, executive orders and FBI and DOJ policies on civil liberties.’

Intelligence and security agencies are organically suspicious, though the food for their existence ultimately comes from the executive. Terrorism has become something of a modern phantom swathed in the caricatured clothes of Allah’s disciples, successors to the Red Menace that kept the US security establishment in scourers and saucepans for the duration of the Cold War.

‘Al Qaeda’s intent to conduct high-profile attacks in the United States remains unwavering,’ cautioned FBI Director Robert S. Mueller, III on October 6 last year. Despite the impaired structure of the organization courtesy of the blows inflicted by freedom land, ‘its power to influence individuals and affiliates around the world has not.’ Care must be taken of such media as the Internet, which has become ‘a facilitator – even an accelerant – for terrorist and criminal activity.’

Plans for expanding the federal surveillance laws such as the Communications Assistance to Law Enforcement Act (CALEA) are in the pipeline. As the EFF points out, such a proposed expansion will involve incorporating wiretapping capabilities into such providers as Skype, Facebook, Blackberry, Google and Twitter. What exactly will be on or off the table is still unclear. We do know that the FBI’s ‘Going Dark Program’ is a beast of considerable proportions, intended to bolster the Bureau’s interception capabilities in the field of communications. Congress proposes to turn to this shortly.

The findings of the EFF are critical and auspicious, given that Congress must consider the renewal of the USA Patriot Act as it expires this month. On January 26, Senator Patrick Leahy (D-Vt.), on introducing the USA Patriot Act Sunset Extension Act, claimed that the new legislation would ‘increase judicial oversight of government surveillance powers that capture information on Americans.’ But legislation cannot, of its own accord, eliminate a culture that dislikes democracy. ‘One man’s red tape,’ suggested Dwight Waldo in 1946, ‘is another man’s system.’ Cut the tape then, and change the system.

Binoy Kampmark

Binoy Kampmark was a Commonwealth Scholar at Selwyn College, Cambridge. He lectures at RMIT University, Melbourne. Email: [email protected]

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