The current state of legislative disarray over the Patriot Act provides an educational, if frustrating, window into exactly how bad Congressional dysfunction has become. I’m probably more sensitive to it than usual because it covers an area I write about in some detail in Surprise Attack. One of the things going on now is that Congress actually has is access to a great deal of actual data on the emergence of the Patriot Act, what it was crafted to accomplish and how well various elements of it are working. That’s the sort of data most business managers would love in reviews of expensive company projects, especially ones that have become controversial and even drawn customer criticism. Normally you would call senior management together, have the departments affected give some background for context, update it with measurements and assessments (or send them back in disgrace to get some hard data) and do some hard decision making on continuing the program “as is” or adjusting it for better performance and/or customer satisfaction. No MBA required to grasp that sort of process.
So for a bit of back story on the Patriot Act, as early as the mid-90’s during the Clinton Administration, counter terrorism chief Clarke – working with the FBI – helped identify a limited number of legal loopholes which seemed to be interfering with efforts to abort potential terror attacks. In addition to the legal issues, in his first counter-terrorism meeting (as head of the new National Security Council Counter Terrorism Security Group) with Janet Reno (head of the Department of Justice) and the FBI, Clarke was told that any information developed during a criminal investigation simply could not be shared with “civilians”. The best he could get was a verbal understanding – which Reno never committed to in writing – that if Justice or the FBI did get information on what might be terrorism involving a foreign group, they would share it with a “few senior NSC officials”. Clearly communications between the FBI and the NSC were an issue.
In 1998 a special Congressional Appropriations subcommittee had focused on the issue of coordination, taking testimony from a variety of law enforcement principals. I evaluate that testimony in great detail (possibly too much but you never know) in Surprise Attack and one of the points that clearly emerges is that Reno failed to push for any further enabling legislation, even minor tweaks. In contrast to Reno, FBI Director Freeh specifically mentioned the areas previously identified by Clarke – the need for legislation adding to the FBI’s ability to investigate areas of terrorist financing, the ability for multipoint wiretaps, the need to be able to establish call tracing registers and the availability of emergency, quick response wiretap authorization. He pointed out that existing law made that available for serious criminal offenses but not terrorism. Freeh’s remarks suggest that as early as 1995 Clarke had been forthright and accurate in citing issues with FBI legal investigatory limits – and that those issues had not been addressed in the following three years.
Needless to say, given Reno’s position and lack of “push” the only result of the dialog was a bit of political theater with select Congressmen questioning if Clarke had actually been overstepping his boundaries in his contact with the FBI and Justice. Nobody asked for further detail on his or Freeh’s concerns. And three the matter set until September, 2001. Immediately following the attacks Justice did submit requests for new legislative authority and tools and Congress rushed to respond, creating the Patriot Act (a name which of course tells you nothing about the legislation or what it is intended to accomplish; Congress had moved almost to the level of the military in coming up with public relations oriented names for its activities). Even a superficial study of the Patriot Act shows that it covered far more territory than Clarke or Freeh had earlier requested. Some of it more egregious issues were addressed with amendments to the legislation during its first re-certification – given that the AG would not support it without changes, even arguing from his hospital bed. But with time, it became more clear that some of its elements were indeed producing demonstrable results in identifying and preempting plots, others were not. More recently studies have shown that the vast majority of the hotly debated bulk data / metadata collection practices have been virtually useless – while very specific elements are of value, especially as used in specific areas such as tracking terror financing networks and identifying “self radicalized” domestic jihadis.
Those studies are available, some done by private organizations, some by the government itself. Yet we don’t see Congress setting down and objectively going through what has been learned, making the hard decisions about what to toss or keep and explaining their selections – true there would be cries of dismay since they would not be pleasing everyone but at least there would be some substance to the decisions – useful the next time the legislation comes up for re-certification. Instead we have yet more political theater, name calling, appeals to patriotism and appeals to personal liberty and privacy – producing photo ops and sound bytes but little else. In the Corporate world if you behave this way, sooner or later you are at risk of hurting your business, losing your job or your customers. If you do it in Congress, and do it well, it just gets your more money donations from your base and serves as fodder for your next campaign.
— so yes, occasionally I do blog opinions, not just research….
Update: And if you thought using the word “theater” might be hyperbole…check the following:
If you do I would point out that there are specific examples of which elements of the act which have assisted investigations and which have not. Its also important to note that tossing around words like “essential” is an interesting way to force conclusions…..if its not possible to prove something is “essential” then its easy for it to get tossed. Actually rating its value would be more pragmatic, as in how many investigations did you use it, how many times did it produce positive or even negative results that were helpful, did it actually delay or confuse the investigation. If you have ever been in a budget meeting where somebody starts pushing the “essential” criteria, you know there is an agenda in play and they want something forced onto the chopping block – but they also want to feel good about doing it and to cover their position if something bad happens later.