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Reversing the Erosion of Civil Liberties

By       Message Coleen Rowley     Permalink
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The 854,000 operatives, agents, and analysts as well as private contractors and consultants (believed to average about $90,000 per year salary) are under more than a little pressure and in competition with each other to prove they are doing something to collect their paychecks and move up the ranks.

So an elaborate grading system that only checks the initial projection of work in a quantitative, not qualitative, way is what's used.

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An FBI agent, for instance, collects "stats" for opening files, disseminating information, adding individuals to a terrorist database or a watch list, serving subpoenas and national security letters for records, recruitment of and contact with secret sources and informants, as well as for executing searches/seizures, making arrests and getting people charged and/or convicted.

Given the change of emphasis from prosecution to intelligence data collection/analysis, more and more of the "stats" do not involve any judicial oversight. The danger exists that the pressure of needing these "stats" would make FBI agents -- as well as personnel of the other 3,000 entities -- over-reach to open investigations and confidential sources and to try to fit garden-variety crimes into the terrorism category.

The pressure to "pre-empt" all possible acts of terrorism, plus lax oversight in the handling of "top echelon informants," has led to repeated examples of opportunistic targeting and entrapment of people not pre-disposed to commit a terrorist act.

If people are not pre-disposed, then the government is really paying informants to create "crimes" that accomplish little beyond adding to the stats.

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Cases that don't pan out and/or which were never even justified, like the "terrorism enterprise investigation" of the "Wild Rose Rebellion" students in Iowa City, can boost a government official's standing on an annual performance review but don't enhance national security.

Ultimately, if no quality over quantity mechanism is found to evaluate work performance, a return is likely to the Cold War-type tracking, the "post and float" system of "papering files." McCarthyism and Vietnam COINTELPRO type abuses are bound to recur only with the new label "terrorist" substituted for old bogeyman "communist."

The remedy would be to revise the method of rewarding "statistical accomplishments" to ensure quality over quantity. At a minimum, ensure that "statistical achievements" are subtracted when actions are found to have unjustifiably targeted advocacy groups or interfered with a person's constitutional rights without proper cause.

--Because the 9/11 Commission was very concerned about the much greater authority being given to the FBI and other agencies in the "war on terror," three of their recommendations concerned the creation of a "Privacy and Civil Liberties Oversight Board."

The PCLOB was forced on Bush through legislation passed at the end of 2004, but he quickly pulled the rug from under it so it had no power and later dismantled it. Obama has thus far ignored the issue by not appointing anyone to the PCLOB.

Fix the situation by immediately appointing five PCLOB commissioners and empower them to interact with and provide mandated training to all national security agencies, contractors and consultants.

The PCLOB should obtain reporting of problems through Civil Liberties-Privacy Officers in each agency like the system used by the Office of Government Ethics. Allow PCLOB to directly hear and evaluate whistleblower complaints relating to information about abuses.

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--Not only abuses but also intelligence failures are enabled through massive (irrelevant) data collections that only add hay to the haystack and thus make it even harder to find the useful needles.

Abuses and failures are enabled through excessive over-classification -- see "WikiLeaks and 9-11: What If?", through the use of "State Secrets" privilege to keep cases out of the courts and through lack of government whistleblower protection.

The English historian Lord Acton, who figured out that power corrupts, also realized that, "Everything secret degenerates, even the administration of justice; nothing is safe that does not show how it can bear discussion and publicity."

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Retired FBI Agent and former Minneapolis Division Legal Counsel.

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