Last week I wrote about how a central problem with reliance on the FISA Court as a principal pillar of NSA oversight is that the court, in an environment of extreme secrecy and without an adversarial proceeding, has no reliable means of determining whether its orders have been carried out. We have learned plenty in recent months about the agency’s failure to follow the law.
A recent column by law professor and ACLU general counsel Frank Askin provides a further reminder of the intractability of national security bureaucracies. Even in a normal legal environment where we do have the right rules and oversight structures, getting these institutions to comply with rulings is often no walk in the park.
The piece concerns “mail covers,”the Postal Service’s practice of copying the outside of all mail sent and received by certain people. Essentially, they are snail mail metadata. Askin’s account starts with this story:
In 1972, the FBI sent an agent from its Newark office to Morris County to investigate why a person name Paton was communicating with the Socialist Workers Party at its New York headquarters.
The information had come from a “mail cover” on the SWP’s headquarters…. In that instance, the subject of the investigation was a 15-year-old high school student who had been doing her homework. The FBI agent tracked her down at West Morris-Mendham High School. The school principal and the political science teacher explained that the student was enrolled in a course called “Left to Right,” which explored the programs and workings of fringe political movements.
The agent thanked school officials for the information and left.
But the principal also notified the student’s parents of the incident, and the parents contacted the American Civil Liberties Union office in Newark, which referred the matter to the Constitutional Litigation Clinic at Rutgers Law School in Newark.
The result was a lawsuit that was to continue for seven years. At first the FBI denied it was investigating the student and refused to provide relevant documents. But when the FBI’s acting director finally testified in the lawsuit that the bureau was acting because the Socialist Workers Party was organizing protests against the Vietnam War, the judge in the case ruled that “national security” was unconstitutionally broad as a justification for this surveillance, and ordered the FBI to rewrite their regulations to reflect that fact. The FBI did not appeal.
Fast-forward to today. In light of a pair of New York Times stories on the photographing of every piece of mail by today’s Postal Service, Askin decided to investigate the FBI’s latest iteration of its mail cover regulations, and found that they authorize mail covers for five purposes, including—wouldn’t you know—to “protect national security.”
Perhaps the FBI has some explanation here but it certainly looks like it has flouted a court order. If we cannot depend on our national security establishment to comply with court orders, it becomes all the more vital that they be subject to vigorous, boots-on-the-ground observation and oversight of what they are actually doing. It’s yet another reminder that the right kind of oversight of secretive security agencies in a democracy is a hard problem, one that will require multi-layer vigilance including not just the courts but also Congress, an active (and non-intimidated) press, robust protection for whistleblowers, strong internal oversight bodies such as privacy officers and inspectors general, and healthy open-records laws. And perhaps other institutions yet to be developed.