Fordham Law

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

Karen Greenberg in Tech Dirt, September 09, 2013

Media Source

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 Greenberg, 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."