Senate Confirms Former FBI Lawyer For Judgeship, Despite Long Record Of Papering Over Abusive Surveillance Tactics

from the this-vetting-process-seems-even-weaker-than-the-NSA's dept

The overreach of intelligence agencies has generated tons of news and commentary. So much, in fact, that even our normally gridlocked representatives have been propelled into action. More than 20 pieces of legislation are currently in the works, aimed at rolling back the abuses of intelligence agencies and the expanded PATRIOT Act.

With so much attention being paid to the fact that agencies like the NSA and the FBI trampled all over Americans' civil liberties, you'd think that a few of our Senators might have found former FBI counsel Valerie Caproni's oversight of a decade's worth of abusive tactics by the FBI to be a bit problematic. In the current climate, one would have expected the Senate to shoot down her nomination for a seat as a judge on the Southern District Court of New York -- especially considering the court's history as the go-to venue for terrorist-related cases.

But no, her nomination sailed through 73-24, thus placing another judge aligned with the administration's "see no evil [in our intelligence agencies]" viewpoint. If you're bringing a suit against any number of overreaching government agencies for violation of your rights, you'd better hope your case gets assigned elsewhere.

Here's the vote breakdown.

Worth noting: there's pretty much a partisan split on the vote. Only one of the 24 "nays" was a Democrat -- something not too surprising considering she was the administration's nominee. Some Republicans just enjoy voting against Obama, no matter what's at stake. What's more surprising is some of the names that voted for Caproni, including most of the sponsors of a bill aimed at ending the secret legal interpretation that makes it legal for the NSA to sweep up huge amounts of phone data.

Of the bill's seven sponsors and co-sponsors (Merkley, Leahy, Heller, Begich, Franken, Tester and Wyden), only Merkley and Heller voted against the former FBI lawyer. All of these sponsors should have voted down the nomination, if for no other reason than maintaining a consistent tone on surveillance overreach. Caproni acting as head counsel for the FBI during a near-decade-long run where the agency completely dismantled the legal framework surrounding requests for phone records, starting with free-flowing National Security Letters before steadily devolving to the point agents were issuing requests via Post-It notes or simply calling up service providers and asking them to send over the requested records.

For senators concerned the NSA is abusing its power to collect phone data, they certainly don't seem too concerned about placing someone who defended even worse behavior in her own agency in the position to create damaging precedent.

Maybe Caproni had some redeeming qualities that haven't made it to the public eye quite yet or maybe they're more convinced than I am that she'll recuse herself from cases dealing with untargeted data collection, the FBI or anything conceivably related. Or maybe this is exactly what it looks like -- a vote along party lines intended to mark something, anything off the "To Do" list and allow the reps to move on to more pressing matters, like their own legislation.

No matter what the excuse, Caproni's new position is a win for intelligence agencies and the administration that loves them.

Filed Under: confirmation, fbi, judge, senate, valerie caproni

Former FBI Lawyer Who Oversaw Years Of Fourth Amendment Violations By The Agency Nominated For Federal Judge Seat

from the 'lifelong-position-of-power'-is-the-new-'disciplinary-action' dept

So, this is the way the system works, apparently. If you're linked with nearly a decade's worth of surveillance abuses, not only won't you be punished for your malfeasance, but you'll be promoted to a lifelong position of greater power.

Spencer Ackerman at The Guardian has compiled an in-depth look at Valerie Caproni, former top lawyer for the FBI and current nominee for a federal judge position in the Southern District of New York. Nothing Ackerman's dug up looks promising for plaintiffs running privacy-related cases through this district court if she's approved.

A 2010 report by the Department of Justice's internal watchdog found that the FBI misused a type of non-judicial subpoena known as an "exigent letter" to improperly obtain more than 5,500 phone numbers of Americans.

"The FBI broke the law on telephone records privacy and the general counsel's office, headed by Valerie Caproni, sanctioned it and must face consequences," said John Conyers, then the chairman of the House judiciary committee, in April 2010, who called for then-FBI director Robert Mueller to fire her.

Conyers said he was "outraged" that the FBI invented "exigent letters" to more easily obtain phone records, and intimated Caproni was responsible for it. "It's not in the Patriot Act. It never has been. And its use, perhaps coincidentally, began in the same month that Ms Valerie Caproni began her work as general counsel," Conyers said in a hearing that month. The FBI stopped using exigent letters in 2006.

"Exigent circumstance letters" (ECLs) were the end-around the FBI used when its National Security Letters failed to pry loose the phone data it was looking for, or more frequently, when it was deemed that following proper procedure would just take too long. Not that these NSLs were any less abusive -- they were often used to access data in violation of the "limits" built into the PATRIOT Act. Apparently, the NSL loophole frequently wasn't big enough or fast enough, at which point the FBI would craft "exigent letters." These were supposed to be followed up by official NSLs, but the FBI often found it was easier to just not do that.

The nadir was reached when the FBI decided to replace the entire legal process for obtaining this data with Post-It notes and requests made over the phone. All of this occurred under Caproni's watch.

Caproni doesn't seem to care much for privacy advocates either, considering them to be nothing but ignorant noise to be filtered out.

At one meeting in 2007, Graves recalled, "Caproni said she thought civil libertarians were wasting their time complaining about the NSL [national security letter] powers because the government could just obtain all that information and more through a 215 order by the Fisa court or through a grand jury subpoena issued by a single federal prosecutor and because those orders are secret we would never know. When pressed about that, she insisted that going around the limits on the NSL powers by using 215 or grand jury subpoenas was no big deal and a perfectly permissible use of those powers."

As has been clearly detailed over the years and confirmed by these leaks, giving an entity this sort of power guarantees it will be abused. Caproni's tenure began during the Bush administration and she followed that administration's lead in exploiting Section 215 to its fullest. The FBI's tactics didn't really have to change with the election of a new president, as he went on to expand the powers granted by the PATRIOT Act. Caproni's actions and justifications have fit in perfectly with the government's over the past nine years, despite a regime change.

Caproni is Obama's nominee for this district court seat, which makes sense as his administration has already forgiven her for her agency's past violations. This was done via a secret ruling issued by the Office of Legal Counsel -- the same office that retroactively gave its blessing for torture and warrantless wiretapping that occurred under Bush's administration.

Caproni has vowed to recuse herself from cases where her "impartiality might be questioned" or dealing with issues she was actively involved with in her former position. Unfortunately, this still leaves plenty of room for Caproni to insert herself into the ongoing court battles seeking to hold intelligence agencies accountable for their overreach.

Currently, the ACLU is suing the government in that court on its own behalf (as a Verizon customer) for violating its Fourth Amendment rights. Certainly there will be more to follow. As Karen Greenburg, director of Fordham University's Center on National Security points out, the southern district court of New York is the "premier venue" for terrorism cases.

Would Caproni consider cases like the ACLU's to be the sort she should recuse herself from, seeing as they deal with the same sort of Fourth Amendment violations the FBI routinely performed under her counsel? I'm of the opinion she wouldn't, especially considering her antipathy towards "civil libertarians" and her willingness to not only test the limits on data collection laws, but frequently exceed them if deemed "necessary."

Filed Under: abuse, exigent letters, fbi, judge, national security letters, valerie caproni