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

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

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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The changes announced Friday will give DoJ lawyers a "mandate" to obtain information about FBI investigations, as if to suggest that the DoJ couldn't previously get it. But the FBI abuses came to light in the first place because the bureau volunteered the information. In 2005, the Intelligence Oversight Board started sending reports to the attorney general. These documents were based on information furnished by the FBI. So we have a decades-old oversight mechanism that, once it's revived, channeled the relevant information to the attorney general—who either didn't read it or didn't care. In other words, this was a people problem. In response to the Washington Post report, White House spokeswoman Dana Perino explained that the Intelligence Oversight Board was no longer all that relevant because its "primary oversight role has been supplemented" by new bureaucratic agencies—the Office of the Director of National Intelligence. But the DNI has done perhaps as little as Gonzales to act on the FBI's reports of its own wrongdoing.

The second major flaw in the DoJ's plan is that the proposed oversight will be conducted not by some independent commission, but by the executive branch itself. Given the scorn Gonzales has shown for congressional oversight, it should be little surprise that his grand proposal for oversight leaves responsibility and discretion up to … the agencies that need overseeing. The clearest sign that Gonzales' DoJ should not be entrusted with oversight of FBI investigations can be found in the attorney general's own defense against the accusation that he lied to Congress. When he said in 2005 that no intelligence "abuses" had occurred, he was relying on a dictionary definition of abuse, which entailed deliberation and would rule out simple mistakes, Gonzales and his staff explained. It is true that the majority of the civil liberties infringements turned up by both the DoJ and the FBI were ostensibly inadvertent—telephone companies turning over more private information than federal agents had a right to ask for. But does it really make a difference to the innocent person whose phone records are turned over whether the disclosure was accidental or deliberate?

Defining down abuse is hardly the way to signal that a new dawn of oversight has come. Especially since at the same time the FBI informed Congress that it is launching a new program, the System To Assess Risk, which will sift through public and private information on foreigners, and some American citizens, and assign "risk scores," indicating the likelihood that an individual is a terrorist threat. This kind of tool may be effective, but it is also a privacy violation waiting to happen.

To truly monitor this sort of program, Washington doesn't need new oversight offices—it needs new people in the old offices. The DoJ's plan promises, instead, to further undermine the existing mechanisms by creating new ones, and to give the delicate and important task of oversight to the officials who have demonstrated that they are not up to the job. In lamenting last week the Bush administration's sidelining of the Intelligence Oversight Board in favor of new processes and structures, James B. Steinberg, a deputy national security adviser under President Clinton, remarked, "There is no one watching the henhouse." But under the DoJ's plan, there will indeed be someone watching the henhouse. They've entrusted that job to the fox.