Who will watch the watchers?

As Fine’s investigations have revealed time and again, even the FBI’s most well-meaning efforts can result in violations of law or policy—often at the expense of Americans’ privacy and other civil liberties—if sufficient oversight is lacking. Perhaps the best-known example comes from the IG’s review of the FBI’s use of National Security Letters (NSLs), a form of administrative subpoena used to obtain certain bank, credit, and communications records. That report unearthed a host of problems, including erroneous reports to Congress and circumvention of rules governing NSL authorities.

But that is far from the only instance in which Fine has uncovered troubling uses of the FBI’s powers. Just in the last five years, according to IG reports, the FBI has used confidential informants without required documentation, improperly collected and retained the identities and First Amendment-protected expression of members of an advocacy group, initiated investigations with insufficient justification… and the list goes on. 

A particularly scathing report documented the systemic unlawful acquisition of thousands of telephone records. Most recently—and most ironically—the IG reported that agents cheated on the exam designed to test their knowledge of the rules with which they must comply.

The IG’s investigations have been vital in the effort to illuminate the FBI’s exercise of its investigative powers—an area that, as a rule, is shrouded in accountability-defying secrecy. But when it comes to the particular violations they unearth, such investigations amount to closing the barn door after the horse has already left. 

Better oversight is needed on the front end to prevent violations of rules before they take place. Such increased scrutiny would also enable us to know whether existing laws and policies are having their intended effect—permitting the FBI to safeguard national security in a way that is consistent with our constitutional values. While some oversight mechanisms exist now—largely in the form of internal supervisory reviews, occasional audits and congressional hearings—recent history makes clear that they are not up to the task. 

Unfortunately, we’re moving in the wrong direction. As documented in a recent Brennan Center report, revisions made in 2008 to the rules governing the FBI’s use of its powers have further expanded the Bureau’s authority, giving agents unprecedented discretion to investigate Americans, even without any basis to suspect them of wrongdoing. Such unbounded discretion greatly increases the potential for abuse. Yet instead of increasing internal oversight to guard against such abuse, the revised rules also ratchet back procedural protections, such as requirements to obtain supervisory approval before using certain investigative techniques and time limits on investigations.

Put simply, senior officials at the FBI and the Justice Department, members of Congress and—where appropriate secrecy does not preclude it—the American people need to take a more active role in overseeing the use of the FBI’s powers. There are many ways to do this. 

First, the requirements that agents secure prior approval for initiating, conducting, and continuing or extending investigations, as well as durational limits on investigations, should be restored. Next, the Justice Department should implement a robust system of review of FBI investigations—a system that evaluates whether investigations have complied with the rules and to what extent those rules aid the FBI’s primary goal of preventing acts of terrorism. Finally, Congress should also vigorously exercise its oversight authority to inquire into the same questions. 

Two years after the latest set of rules for FBI investigations was put in place, there is no public information about how they are being implemented, whether they are making us safer, or whether they are resulting in violations of policy, law or Americans’ civil liberties. It is long past time for government officials, both inside and outside the Justice Department, to evaluate systematically the effectiveness of the Guidelines and whether the benefits they bring are worth their costs.

Emily Berman serves as counsel for the Liberty & National Security Program at the Brennan Center for Justice at New York University School of Law.

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