One reason the Bush administration has fared so poorly over the past several years is its obsessive fear of public accountability and separation of powers. From its secret prisons to its classified torture memos, from its closed deportation proceedings to its incommunicado detention of José Padilla, from its clandestine NSA spying to its persistent efforts to deny the Guantánamo Bay detainees access to the writ of habeas corpus, the Bush administration has entered one long plea of "trust us." President Bush is, after all, “The Decider.”
As the Framers of the Constitution well understood, however, such an approach to governance is a recipe for disaster. The Framers believed in both openness and checks-and-balances. They recognized the dangers of an overzealous executive, operating in secret, unchecked by the courts, the Congress, the press, and the public. The recently-released Justice Department audit of the FBI's use of PATRIOT Act authority is the latest example of the consequences of the Bush administration’s “trust us” theory of governance.
Enacted only weeks after 9/11, the PATRIOT Act, among other things, empowered the FBI in the course of terrorism investigations to issue “national security letters” (NSLs), through which the FBI could order businesses, universities, telephone companies, and other organizations to turn over email, telephone, credit card, banking, educational, library, medical and other personal and financial information to the FBI.
Civil libertarians objected to giving the government this authority because it would empower the FBI to invade legitimate private interests of innocent individuals without any judicial supervision. It would, in short, circumvent the fundamental principle of separation of powers. The Bush administration, however, insisted on the autonomy of the executive branch. It promised to institute internal FBI safeguards to ensure that this authority was not abused. Judicial oversight, it explained, was a bother and, in any event, unnecessary.
The Justice Department’s audit of the NSL program reveals, once again, the profound difference between government by executive decree and government by checks and balances. From 2003 to 2005, the FBI issued more than 140,000 NSLs. Although the FBI is required by law to report its use of this authority to Congress, the audit revealed that over the past three years the FBI underreported the number of national security letters it had issued by more than 20%.
Even more disturbing, over the past three years the FBI reported a total of only 26 instances in which it had violated the guidelines for the issuance and use of national security letters. But when the Justice Department independently audited the FBI's records, it found violations - not reported by the FBI - in roughly 7% of the national security letters it examined. Thus, from 2003 to 2005 the FBI had issued approximately 10,000 unlawful NSLs. In effect, then, the FBI had self-reported fewer than 1% of its own violations.
These violations run the gamut from improper requests for NSLs, to unauthorized collection of data, to unlawful authorization of NSLs. Some of these errors were made by the FBI, others were made by the third-party recipients of the NSLs. Most of these errors were no doubt unintentional. They were due to inadequate guidelines, confusion about the governing standards and reporting requirements, and even typographical errors that resulted in information being obtained about the wrong people.
For the government to gather private information about individuals for use in terrorism investigations is a serious business. The Bush administration’s failure to institute appropriate guidelines, standards, procedures, and safeguards is precisely why public accountability, separation of powers and checks and balances are important. What this blunder of executive branch arrogance proves once again is clear – “trust us” is not a viable principle of a well-functioning democracy.