Trust Us — We're from the Government

Alan Scholl
Wednesday, March 28, 2007

Called on the carpet to explain the FBI's abuse of powers to conduct domestic surveillance — i.e., spying on American citizens — under the Patriot Act, FBI Director Mueller argued that the agency was guilty only of mistakes, not malfeasance, and problems can be corrected with proper management.

"The [Patriot Act] statute did not cause the errors," Mueller told the Senate Judiciary Committee yesterday. "The FBI's implementation did." Nevertheless, Mueller continued, the FBI can be trusted not to abuse those powers in the future. "We are committed to demonstrating to [the] committee, the Congress and the American people that we will correct the deficiencies," Mueller said.

Perhaps Mueller can be trusted. After all, in his testimony he also said this:

Mr. Chairman, the FBI is acutely aware that we cannot protect against threats at the expense of civil liberties. We are judged not just by our ability to defend the nation from terrorist attacks but also our commitment to defend the rights and freedoms we all enjoy.

It is refreshing to hear someone in the Bush administration profess at least some small amount of fealty to the idea that security cannot and should not be purchased at the price of liberty. The safety of liberty, however, cannot be allowed to rest on the good intentions of just one man.

Lord Acton has been proven right over and over since he formulated his famous maxim that power corrupts. The FBI has not been immune to the corruption. In the matter that brought Mueller before the Judiciary Committee, Justice Department Inspector Glenn A. Fine found that the FBI had wantonly abused its power to collect information on Americans under the Patriot Act by improperly utilizing a form of administrative subpoena known as National Security Letters. Those letters allow the FBI to force businesses, including Internet service providers, telephone companies, banks, and others to turn over customer records.

Since the passage of the Patriot Act after 9/11, use of the letters has skyrocketed. According to the Associated Press, "In 2000 ... the FBI issued an estimated 8,500 letters. By 2003, however, that number jumped to 39,000. It rose again the next year, to about 56,000 letters in 2004, and dropped to approximately 47,000 in 2005."

Inspector Fine's audit found that in more than 7 percent of the cases examined the FBI may have abused its power and broken the law. If that percentage is extended over the total number of national security letter incidents recorded from 2003 to 2005, it is conceivable that — in the worst case scenario — the Justice Department and the FBI may have violated the law nearly 10,000 times, potentially and unconstitutionally invading the privacy of thousands if not millions of Americans.

The audit alone is proof enough that, despite Mueller's apparent personal commitment to protecting the rights and liberties of the American people, the FBI as a whole cannot be trusted with the power that has been given to it. Further pause should come from considering the current climate in which the FBI exists. As a Justice Department agency, the FBI is ultimately the responsibility of the Attorney General, currently Alberto Gonzales.

Unlike Mueller who has at least referenced his commitment to liberty, Gonzales has been a consistent foe of freedom. Most notoriously, during his own appearance before the Senate Judiciary Committee, Gonzalez said that there is no right to habeas corpus in the Constitution, despite the fact that that august document actually says in Article I, Section 9: "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it."

It is also Gonzales that is at the bottom of the Bush administration's infamous dismissal of the Geneva Convention as it applies to enemy combatants captured as part of the War on Terror. In a memo to the president dated January 25, 2002, Gonzales reminded the president that the Justice department had concluded "that the Geneva Convention III on the Treatment of Prisoners of War (GPW) does not apply to the conflict with al Qaeda. I also advised you," Gonzales continued, "that there are reasonable grounds for you to conclude that GPW does not apply with respect to the conflict with the Taliban." This has contributed to the faηade of legality under which the Bush administration has employed various tactics that could be construed as, and have been credibly described as, torture.

During his confirmation hearings Gonzales said, "As we fight the war on terror, we must always honor and observe the principles that make our society so unique and worthy of protection. We must be committed to preserving civil rights and civil liberties." His actions since his confirmation prove, despite his pronouncement to the contrary, that he is more interested in undermining freedom than in protecting it. As Brian Foley, assistant professor of law at Florida Coastal School of Law and former associate editor of California Law Review notes, "Focusing on torture as the main objection to Alberto Gonzales' taking over as Attorney General distracts us from his greater sin: his attempt to give the president the power to imprison Americans incommunicado and indefinitely, without recourse to courts or lawyers. Such contempt for our civil rights shows that Gonzales cannot be trusted to protect them."

Likewise, when FBI Director Mueller says with regard to Patriot Act powers, "Trust me, I'm from the government," he can't be trusted. The truth is, no appointed bureaucrat, no politician, no president can be trusted to protect the rights and freedoms that Americans have by natural right and have come to cherish.

The United States is a republic of law, not of men. As Thomas Jefferson rightly noted, "In questions of power, then, let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution." And where those vital chains have been weakened or severed by dangerous legislation like the Patriot Act, the solution is to repair the damage by legislative repeal, not in trusting a bureaucrat to resist the corrupting temptations of power.