Policy Institutes

Yesterday, the Department of Justice Inspector General (DoJ IG) issued a long overdue Congressionally-mandated report on FBI compliance with the PATRIOT Act’s Section 215 “business records” provision between 2012 and 2014. It is the first such report issued that covers the initial period of Edward Snowden’s revelations about widespread domestic mass surveillance by the federal government. Since his indictment for leaking the information to the press, Snowden’s lawyers have argued that he should not be prosecuted under the WW I-era Espionage Act because his revelations served the public interest. The DoJ IG report provides the clearest evidence yet that Snowden’s lawyers are correct (p. 6):

In June 2013, information about the NSA’s bulk telephony metadata program was publicly disclosed by Edward Snowden. These disclosures revealed, among other things, that the FISA Court had approved Section 215 orders authorizing the bulk collection of call detail records. The telephony metadata collected by the NSA included information from local and long-distance telephone calls, such as the originating and terminating telephone number and the date, time, and duration of each call. The disclosures prompted widespread public discussion about the bulk telephony metadata program and the proper scope of government surveillance, and ultimately led Congress to end bulk collection by the government in the USA Freedom Act.

Public discussion of the controversy. Very public action by Congress to change the law, addressing at least one major abuse brought to light by Snowden. And there was more (p. 33):

An [National Security Division] Deputy Unit Chief noted that the number of business records orders reached its peak in 2012 and has declined annually since then, and that the number of [Electronic Communication Transation] requests has declined more than other types of requests. The Deputy Unit Chief said that the Snowden revelations have played a role in this decline, both in terms of the stigma attached to use of Section 215 and increased resistance from providers. The Deputy Unit Chief stated, “I think that it’s possible that folks … have decided it’s not worth pursuing [business records orders], you know, obviously things haven’t been great with providers since Snowden either.” 

Translation: Snowden’s actions forced companies like Verizon, Yahoo and others to grow a spine and start defending the Fourth Amendment rights of their customers. 

Earlier this month, a group of non-governmental organizations and individuals launched a campaign to get President Obama to pardon Snowden before he leaves office. We now have the department seeking Snowden’s prosecution offering unambigous evidence that his whistleblowing actions served the public interest. Obama should direct DoJ to drop the case or he should pardon Snowden. Either approach would be in the public interest, just as Snowden’s actions were.

On Sunday, Colombians will vote in a referendum on a historic peace deal signed this week between the Colombian government and the FARC (Revolutionary Armed Forces of Colombia) rebels who have been at war for more than 50 years. The next paragraph gives a taste of what’s in the 297 pages of the peace agreement. I recommend you skip over it since you will almost certainly not understand it, and it will not be pleasant to read.

 “During the term of the Agreement on CFHBD and DA, the Police Forces and the FARC-EP must comply with the rules governing the CFHBD and DA, as well as other chapters and protocols that make up the Agreement on CFHBD and DA. The MM&V has unrestricted access to the ZVTN included in Annex X of this Agreement and to the units of the Police Forces, committed to the devices specified in Annex Y of this Agreement.”

Surely only a small percentage of Colombians will read the entire text of the agreement. The Colombian government probably counts on that as it and its allies push the notion that those who criticize the peace plan support war. But many Colombians who read the document are finding serious reasons to oppose the plan and agree with independent observers, such as Human Rights Watch, who strongly criticize it. Indeed, José Miguel Vivanco, director of Human Rights Watch’s Americas division, calls the agreement a “façade of justice in the name of peace” and points out that it guarantees impunity.

The Colombian peace deal represents a setback in international practice. Since the aftermath of Apartheid in South Africa in the 1990s, war crimes or crimes against humanity have been prosecuted in international or ad hoc courts where justice is administered as part of peace settlements. Not so in the case of Colombia which “punishes” such criminals with requirements to engage in community service and with no deprivation of liberty.

Moreover, confessed criminals would be entitled, contrary to the Colombian constitution, to participate in politics even while serving their alleged sentences. The agreement guarantees the FARC 10 congressional seats and 16 more in special areas to be created, and in which existing political parties in Congress “may not register candidates.”

In the not too distant future, Colombia may very well see the legitimized political influence of a Senator Timochenko, leader of the FARC guerrillas. It is as if in the 1990s in Peru, which had been ravaged by the unpopular Maoist Shining Path guerillas, the country had chosen to negotiate with the rebels on the verge of their collapse, rather than what it actually did –defeat the group, and capture, try and jail its members who had been found to have committed serious crimes. (The FARC was also decimated on the eve of the Colombian government’s announcement that it would pursue peace negotiations.) Had Peru followed the alternative Colombia is pursuing, it would most assuredly have Abimael Guzmán, the Shining Path’s bloodthirsty leader, and his party in Congress today.

All this comes with the generous support of the state. The agreement ensures that the government will finance the political party of the FARC and the dissemination of its ideas. In addition, the state will pay for a “center for thought and political education” of the FARC, a TV channel and 31 radio stations. According to Rafael Nieto Loaiza, former vice minister of Justice, the FARC’s new party “will receive an annual contribution proportionately higher than that of the other parties.”

The agreement creates all kinds of bureaucracy for the administration of peace and the transition, and relies on new welfare and spending programs. The government will oversee a rural reform reminiscent of the unsuccessful state-centered models of the 1960s. It will create a land fund, and will distribute three million hectares for free. The government will also provide subsidized credits and insurance, and direct subsidies. The largesse will be focused on rural areas, where the amount of land each family can own is limited by law, as is the transfer or sale of land without government authorization. Public spending on housing, irrigation and other infrastructure will increase and be directed to the places affected by the conflict, but not necessarily take into account the economic viability of such spending. In this way, the government seeks to invigorate the rural economy and give peasants independence, but like so many examples of government planning, it is a model that is bound to fail.

It is reasonable to seek peace and to make concessions along the way if the exchange is worth it. To many of those who read this agreement, however, it will be difficult to conclude that that has been achieved.  

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