The Justice Department's new FBI oversight is a scam.

The law, lawyers, and the court.
July 18 2007 6:16 PM

The G-Men and the G-Man

The Justice Department's "historic" new oversight of the FBI is none of those things.

Alberto Gonzales. Click image to expand.
Alberto Gonzales

It may be simply an imperative of working for a president who hates flip-floppers, but you have to give Attorney General Alberto Gonzales points for consistency. Whether evading congressional inquiries about wiretapping or claiming total incompetence rather than owning up to his role in the U.S. attorney firings, he has completely refused to compromise with his ever-growing and increasingly bipartisan opposition. In April, Republicans started lining up to urge Gonzales to resign. In May, James Comey revealed that Gonzales had done the unthinkable: made John Ashcroft look like a civil libertarian. But the attorney general defied the critics and the odds (and Slate's Gonzo-Meter, at that) and never surrendered an inch.

Then late last Friday afternoon—Washington's preferred hour for delivering bad or embarrassing news—the Justice Department announced a "historic" overhaul of its oversight of the FBI. Officials explained that the department would create a new unit to review "all aspects of FBI's national security program" and that the bureau would create its own new Office of Integrity and Compliance. Gonzales' deputy, Kenneth Wainstein, told reporters that the new DoJ office would give "a lawyer's scrub" to FBI cases. Could it be that the Justice Department was suddenly acknowledging the potential for abuses in counterterrorism investigations? That after years of manifest contempt for the idea of oversight, Gonzales was finally chastened and having a change of heart?

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If ever Gonzales were to entertain the idea of reform, now would be the time. The DoJ says that the new changes have been planned for months, but it can hardly be an accident that they were announced following revelations of widespread abuse by FBI agents of National Security Letters and other Patriot Act-enhanced counterterrorism tools. More pointedly, the announcement came on the heels of the bombshell news in the Washington Post last week that Gonzales had received numerous reports documenting FBI violations—before he told Congress, in April 2005, that there had "not been one verified case of civil liberties abuse" under the Patriot Act.

Still, no one outdoes Gonzales in the elaborate choreography of oversight evasion, and he's already shown that he knows how to unveil a "compromise" that, upon closer inspection, turns out to be anything but. Sure enough, the DoJ's plans for reining in the FBI have two distinct features that will undermine the oversight and accountability they are putatively designed to promote.

First flaw: The DoJ's changes imply that, until now, inadequate oversight of the FBI was due to faulty institutional processes and not to the simpler (and more easily remedied) problem of people not doing their jobs. This tendency to blame process rather than people is a favorite Bush administration maneuver. When things go wrong, you don't fire people; you change the machine. (To date, not a single official has been fired for any of the countless human mistakes that allowed the terrorists to succeed on Sept. 11.)

But the old processes for policing FBI investigations didn't fail because of some design flaw. They failed because the administration either ignored or abused them. Following the intelligence excesses of the Vietnam era, President Gerald Ford created the President's Intelligence Oversight Board, an independent civilian commission that monitors intelligence agencies. In past administrations, the board played a vital role in alerting the president and the DoJ to abuses by intelligence agencies. But for the first five and a half years of the Bush administration, it sent no reports. It turns out that for half of that time, the board couldn't do its job because it didn't exist—Bush didn't appoint any board members until 2003.

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