July 12, 2007 | By Kurt Opsahl

Keep Your Eye on NSL Abuse Ball

Earlier this week, we reported that FBI records showed that Attorney General Alberto Gonzales knew about years of chronic National Security Letter problems, even before he testified that "There has not been one verified case of civil liberties abuse." This carefully worded government talking point has led to discussions of the definition of "abuse."

Standard definitions of abuse include "improper use," and the documents themselves admit to at least "improper" collection of information. None of the definitions require intentional conduct or flagrant problems.

While the revelations certainly do seem to show, at a minimum, improper use, let's keep our eye on the ball. Now that the truth is coming out, and it's clear that there were significant problems and Gonzales knew about them, isn't it a little strange to be seeking cover from the definition of "abuse" rather than discussing why the AG didn't talk straight to the American people and Congress?

The Attorney General's goal in his testimony was to broadly reassure Congress so that the Patriot Act provisions would be reauthorized, and it worked. He certainly gave no indication that his testimony was only intended to address flagrant problems -- that would have been easy enough to do. To the contrary, Gonzales wanted us to think that there were essentially no improprieties whatsoever.

We've known for a while that that was clearly not the case (though not everyone in the government got the memo). The newly revealed documents now show that the AG was aware of "investigative activity which the FBI has determined was conducted contrary to the attorney general's guidelines for FBI National Security Investigations and Foreign Intelligence Collection and/or laws, executive orders and presidential directives." Yet, in a January 2006 public statement, the AG specifically cited to the protections of "the Justice Department's own binding procedures and policies," right before mentioning the alleged lack of abuse:

When you look at the Act, you can see that there is extensive judicial and congressional oversight of the tools provided by the Act - not to mention the rigorous protections provided by the Justice Department's own binding procedures and policies. Over the past year, the Act has been the subject of more oversight and debate than any bill in recent memory - and all of the hearings, testimony, briefings, and meetings demonstrated that there has not been a single verified abuse of any of the provisions.

It is, at best, disingenuous for the AG to laud the protections of the DOJ's binding procedures and policies when he knows that there are uses of NSLs contrary to those very procedures. Congress should not have to treat the highest level law enforcement official in the land as a hostile witness, parsing through every nuance. Our country would be better served by an open and honest approach, acknowledging the known failings in the use of NSLs. The AG would remain free to argue that Patriot renewal was nevertheless appropriate, but the final decision must come from a fully informed legislature and public.


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