There are a lot of problems with the Bush administration’s argument that civil liberties have to be restricted for the duration of the War on Terror.  The first is that the War on Terror is necessarily endless; how can we ever say it will be over?  The second problem is related to the first, that because it’s really unclear who exactly the enemy is and because governments tend to use their power as expansively as possible, it’s inevitable that there will be abuses of these new powers.  Just think, if you’re an FBI agent, and you have this sweet new authorization to get warrants with less stringent judicial oversight, wouldn’t you try to use that power as much as possible?  Well, they have been:

The FBI has increasingly used administrative orders to obtain the personal records of U.S. citizens rather than foreigners implicated in terrorism or counterintelligence investigations, and at least once it relied on such orders to obtain records that a special intelligence-gathering court had deemed protected by the First Amendment, according to two government audits released yesterday.

The episode was outlined in a Justice Department report that concluded the FBI had abused its intelligence-gathering privileges by issuing inadequately documented “national security letters” from 2003 to 2006, after which changes were put in place that the report called sound…

A report a year ago by the Justice Department’s inspector general disclosed that abuses involving national security letters had occurred from 2003 through 2005 and helped provoke the changes. But the report makes it clear that the abuses persisted in 2006 and disclosed that 60 percent of the nearly 50,000 security letters issued that year by the FBI targeted Americans…

In total, Fine said, the FBI issued almost 200,000 national security letters from 2003 through 2006, and they were used in a third of all FBI national security and computer probes during that time. Fine said his investigators have identified hundreds of possible violations of laws or internal guidelines in the use of the letters, including cases in which FBI agents made improper requests, collected more data than they were allowed to, or did not have proper authorization to proceed with the case.

Of course this happened, so is the nature of giving law enforcement agencies the power to do anything - they’ll always use it to the max.  But what exactly is a National Security Letter, and why should you care?  Well, an NSL is a authorization approved by the head of the FBI to “demand certain types of personal data, such as telephone, e-mail and financial records, while barring the recipient from disclosing that the information was requested or supplied.”  So basically, you’re shit gets searched and you can’t tell a lawyer about it.  Just for a little refresher, the 4th amendment says:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

So we have the FBI doing searches of the “effects” of US citizens - without warrants or probable cause.  There’s also the implicit violation of free speech, namely that you can’t tell anyone about the search.  What makes the FBI’s massive abuse of National Security Letters even more galling is why they used NSLs. They used them because the Foreign Intelligence Surveillance Court wouldn’t authorize their warrants: “The court had concluded “the ‘facts’ were too thin” and the “request implicated the target’s First Amendment rights,”  This is just blatant.

To give some background, the FISA court was set up in 1978 to let intelligence agencies do surveillance and spywork with some judicial oversight, but less than accorded to a regular criminal case. Some of the protections afforded to law enforcement in the FISA court are a 72 hour window to get a warrant after surveillance starts and a lower level of proof to get a the warrant itself - all the government has to do is to prove that the subject of surveillance is an “agent of a foreign power.”  Between 1978 and 1994, the court approved 13,995 out of 14000 warrant requests.  So if this court, which is basically an American Star Chamber, wouldn’t approve a warrant for the FBI, then they probably shouldn’t have gotten them in the first place.

The FBI’s justification for circumventing the FISA court would be hilarious if it weren’t so disturbing:  the FBI’s general counsel “told investigators it was appropriate to issue the letters in such cases because she disagreed with the court’s conclusions.”  Last time I checked, the way the legal system is supposed to work is that law enforcement agents have to listen to a court’s decision.  Otherwise, why do we even have courts to oversee law enforcement activity?

The Post’s article indicates that the FBI has been actually cleaning up since 2006, when these massive abuses became apparent, but I doubt that we’ll ever see any real, voluntary restriction on the use of these expansive powers until Congress and Courts actually take some strong steps to restore civil protections.