Seven Justice Department reforms we need to protect the Constitution

 In June, the Guardian published this retrospective on the effect of Edward Snowden’s leaks revealing a massive domestic surveillance program within the United States. In spite of a few cosmetic reforms, the Guardian’s experts assessed, “The US government is still spying in ways that are in some instances worse than or more extreme than what we were able to reveal in the Snowden reporting,” and that “the US security state is expert at ... ensuring that Americans always have a new enemy to fear and always have a reason to believe that it’s necessary the government be able to operate in secret and spy and have unlimited powers.”

As Snowdon revealed, the U.S. government maintains a mirror image of virtually every electronic communication that passes through every computer and cell phone. An unscrupulous government employee can, for example, find out if the target is having an affair, listen to voicemails, and review the target’s pornography selection. While few criminal cases are ever solved with these tools, the FBI nevertheless snoops through millions of such records every year, often without any legal justification. 

The Justice Department repeatedly promised reforms to the rules governing domestic spying, here, here, and here, to name a few examples. But it doesn’t matter what the rules are when the Justice Department systematically fails to hold its people accountable for violating those rules. 

The illegal spying on Trump campaign figure Carter Page serves as a useful case study illustrating why previous reforms haven’t worked. In spite of what should have been a slam-dunk case against the government for illegally spying on Page, a court ended Page’s long quest for justice by throwing his case out. In that case, the FBI deliberately deceived the court overseeing the warrant authorizing the spying by claiming the intrusion was the only way to gain information about Page's contacts with Russians. As the Justice Department inspector general documented here, the FBI ignored Page’s public offer to meet with them to explain himself and then concealed his history of providing reliable debriefings to the CIA. Instead of holding accountable the many senior officials who played a role in the illegal spying, the Justice Department pinned the blame on Kevin Clinesmith, who actively doctored evidence to hide Page’s history of cooperating with the government.

Clinesmith’s willingness to take the fall by pleading guilty to a felony deception of the court seems to have earned him an unusually soft landing. Clinesmith held onto his job until just before the inspector general released its report in December 2019, served no prison time for the felony, and maintained his license to practice law in D.C. after a one-year suspension. Michigan suspended Clinesmith’s license for two years beginning August of 2020.

With these kinds of examples in mind, it is time to propose some serious reforms that could restore public trust in the Justice Department and without which constitutional violations will continue to escalate.

Reform 1: Create a remedy for victims of the FBI’s unconstitutional actions.

The Carter Page/Kevin Clinesmith affair shows how the Justice Department can and will delay and, ultimately, deflect a legitimate claim regarding violations of constitutional rights. Congress has already created a remedy (Title VII) for federal employees who feel the government violated their equal protection rights due to their race or membership in some other protected class. This process, as designed, contains several useful elements that could inform the complaint process for victims of the FBI’s unconstitutional abuses.

For example, it requires the accused federal agency to conduct a timely internal investigation, generally within 90 days. The complaining party is then given a copy of the report that serves as the administrative record in subsequent processes. While the FBI will undoubtedly claim that revealing the context of the constitutional violations will harm “ongoing investigations,” this consequence will actually further deter agents from abusing investigative tools to conduct unconstitutional searches. If we can set a murderer free because of illegally obtained evidence, then the FBI should not expect to maintain investigative secrecy after violating the constitutional rights of a member of the public.

More importantly, the Title VII process provides for attorney’s fees. After the court dismissed Carter Page’s slam-dunk case, few attorneys can bear the financial risk of such a case without collecting unaffordable fees from their clients in advance.

Additionally, the remedy should include compensatory damages for the victim. Page had his reputation dragged through the mud as the FBI used the mere existence of the investigation to smear his name in the press. All illegal accessing of an American’s private data should entitle the victim to non-trivial compensatory damages.

Title VII also contains a provision that pays all damage awards from the budget of the offending agency. That puts the financial pain where it belongs — in the budgets of the offenders.

If the complainant is unhappy with the outcome in the administrative process, Title VII permits the victim to choose the venue from a number of choices depending on the facts of the case. It’s not hard to see why victims of FBI spying might have trouble finding justice in the FBI’s hometown of Washington, D.C. Logically, if the FBI unlawfully spied on a resident of Florida, then she should be able to bring her case to a Florida federal court.

Reform 2: Victims should be immediately notified.

In spite of all of the FBI’s many promises to stop illegally spying on Americans, recent revelations exposed yet another wave of mass unconstitutional spying on Americans. Most, if not all, of the targets will never learn that some bureaucrat in Washington went through their private messages and internet search history. Instead the law should require a rapid victim notification process with instructions on how to pursue an administrative claim against the offending agency (see Reform 1). The FBI will completely disregard any deadline without consequence as the agency routinely does in response to Freedom of Information Act requests and congressional oversight requests. Thus, any delay beyond 10 days should result in consequences such as a daily rate of damages due to the victim.

Furthermore, if the FBI fails to notify a victim within 10 days, any employee or contractor working for the FBI should be empowered to make that disclosure directly to the victim as a protected whistleblower disclosure.

Reform 3: End confidentiality for disciplined law enforcement.

While the federal government has long protected the privacy of its employees subject to discipline, the public interest in law enforcement integrity outweighs the privacy rights of the disciplined employee. Over and over again the inspector general issues reports detailing the serious misconduct of Justice Department and FBI personnel, while protecting the privacy of the offending employee. This has become a major cause of distrust in these institutions, as the “privacy of the employee” is used to deflect legitimate concerns by the public that the FBI harbors dirty cops who scoff at the Constitution.

When the misconduct interferes with the constitutional rights of a member of the public, the constitutional oversight interests of an informed public must take precedence over some bureaucrat’s fear of embarrassment. The Constitution requires prosecutors to disclose so-called “Brady” material (evidence of officer misconduct) so that the accused may properly confront and cross-examine his accusers. But the public has a constitutional role to play as well. We guide our elected representatives in their oversight roles, and the public should know when the FBI harbors dirty cops who abuse the Constitution.

Reform 4: Limit investigative secrecy.

Perhaps the most potent shield protecting Justice Department misconduct is its “policy” that it does not reveal details concerning ongoing investigations. There are legitimate reasons for preserving elements of this protection. For example, the evidence may unfairly malign a target who has not yet had an opportunity to defend himself. Revealing the progress of the investigation may tip off targets and witnesses who might not cooperate if they learn in advance where the investigation is heading.

But the abuse of this privilege has gotten out of control. The Justice Department has a particularly terrible track record if the case involves politics. The prosecutors and investigators routinely poison jury pools by leaking to friendly reporters while withholding exculpatory information from the public. This happened over and over again during the Russia collusion hoax. It has been used to great effect to protect the Bidens under the pretext of an ongoing sham investigation into the family’s shady dealings.

The FBI should not be able to apply the privilege selectively. If leaks appear in the media, congressional overseers should be able to challenge a bad-faith effort to hide material having to do with the public interest. The longer the investigation is held open, the easier it should become for Congress to apply oversight.

Reform 5: FOIA reform.

Under the Freedom of Information Act, the Justice Department and the FBI have only 20 working days (usually the equivalent of a month) to respond to a request for records. In practice, this has become a way to enable scofflaws, as both agencies routinely delay responses to such requests unless sued. Generally, plaintiffs suing fail to recover attorneys’ fees. So unless a party is willing to advance thousands in attorneys’ fees, these agencies generally do not worry about complying with this critical transparency law.

Instead, these agencies should be liable for reasonable attorneys’ fees incurred as a result of the Justice Department’s failure to properly administer a sufficiently resourced office that can respond to FOIA requests in a timely manner. And if the requested document evidences misconduct by the agency, the requesting party should be entitled to recover a cash bounty for bringing the material to light.

Reform 6: Special procedures for spying on journalists, elected officials, candidates for public office, and influencers.

One of the most shocking scandals regarding the FBI is its habit of spying on congressmen and journalists. Both have a critical role in overseeing and checking the power of the FBI, and both rely on whistleblowers for information that the Justice Department suppresses.

Congress should create a robust and expeditious remedy for such cases. These remedies should include the attorneys’ fees and compensatory damages noted above. In addition, the head of the FBI should be required to approve the legitimate law enforcement purpose for any spying on journalists, elected officials, candidates for office, and other influential figures.

If any FBI personnel are caught using the fruits of surveillance to influence any such person, they should be immediately suspended from duty pending an investigation — the results of which should be available to the public.

Reform 7: Rotate personnel in D.C .and the main Justice Department.

Many have written about the fact that the FBI personnel who started the Russia collusion hoax went on to work in the special counsel’s office. Some even continued to pursue Trump in the later investigations. Militaries have long recognized the importance of regularly rotating commanders and soldiers in order to avoid the kind of incestuous loyalties that protect misconduct. The lack of rotation of D.C.-based Justice and FBI personnel has led to a kind of permanent power center that’s out of reach of the voters. By rotating fresh agents and lawyers through these centers, we can hopefully disrupt the soft coup that these offices have engineered. They’ve become so brazen that they’re now conspicuously interfering in the 2024 election with novel criminal charges against former President Trump. It’s time to break up these echo chambers and, likewise, send the D.C. bureaucrats out to the field offices to get a taste of real law enforcement.

New procedures for the Justice Department and the FBI will simply be ignored and sidestepped in the same manner as they have been for a decade since Edward Snowden’s revelations. Instead of monkeying with the procedures, it’s time to create real consequences for violations of the Constitution. The only reason we have an FBI in the first place is to uphold the Constitution. If there are no consequences for violating the Constitution, then we relegate it to the status of scofflaw constitutions in “democracies” like North Korea and Venezuela.