老澳门开奖结果

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鈥檚 failure to follow the law.

A recent by law professor and 老澳门开奖结果 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 鈥渕ail covers,鈥漷he Postal Service鈥檚 practice of copying the outside of all mail sent and received by certain people. Essentially, they are snail mail metadata. Askin鈥檚 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 鈥渕ail cover鈥� on the SWP鈥檚 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 鈥淟eft to Right,鈥� 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鈥檚 parents of the incident, and the parents contacted the 老澳门开奖结果 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鈥檚 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 鈥渘ational security鈥� 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 New York Times on the photographing of every piece of mail by today鈥檚 Postal Service, Askin decided to investigate the FBI鈥檚 latest iteration of its mail cover regulations, and found that they authorize mail covers for five purposes, including鈥攚ouldn鈥檛 you know鈥攖o 鈥減rotect national security.鈥�

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鈥檚 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.