Your bank account, your liberties
by George Paine
I went to the bank today. My debit and ATM card had stopped functioning on New Year's Eve. I was told, in no uncertain terms, that I must visit the bank to review my account because of "possible fraud".
I arrived at the bank and went to my banker's office. He saw me coming in and said "Hello, Mr. Paine, it's been too long." Once pleasantries were out of the way he asked how he could help me. I explained that my card had stopped working and that I had been informed over the phone that I would have to come in and look over my past transactions, that I would have to look for anything suspicious. That only then could my ATM card — my sole link to cold, hard cash — be reactivated.
So he pulled up my account on his computer and rotated the monitor so that we could both see the details of my financial life. He rolled the history back several months and, together, we set to find anything suspicious. As the pages — the days — rolled by on-screen I realized that these transactions, these little digital notes, brought back memories. There was that time, at that place, where I was with that person. It was all there, in green and black.
I mentioned to him that these transactions brought back memories. He gave me a knowing smile. He began to extrapolate details of my life, little vignettes, from the transactions on the screen. He said "So, here, on December 13. You get a cup of coffee with a friend. You head a few blocks away and get some Sushi. I hear that restaurant's good. Then you go and take in a show. Oh, here, yes. You have a couple drinks afterward."
I look at him, thinking. The man's right. That was, in fact, exactly what I did that day. As we flipped through the days we started examining Christmas shopping. He asked if the recipient of a particular gift had liked it. I said that she did.
This man, my banker, knows some very private details of my life. He knows where I eat dinner on a daily basis. He knows where I get my coffee. He knows what bars I go to, and when I go to them. He knows where and when I travel. He knows how long I spend in various places, he knows where I like to buy books. He knows that I have donated to political campaigns, he knows which campaigns, and he knows how much I have donated.
Once we had examined the sum of my daily financial life spanning several months we determined, together, that no fraud had been perpetrated. It was at this point that my banker reactivated my ATM card. I thanked him very much for the service.
As we returned to unrelated conversation I noticed a small sign on his desk. It was a small advertisement, a note from a banking services company. It was printed on good stock with a flapping, slightly stylized American flag serving as a backdrop. It was designed like a piece of campaign literature, as if it were trying too hard to appear patriotic. It read "USA PATRIOT Act compliance by…"
I don't remember the name of the company that provided its small sign to my banker. A quick Google search, however, turns up quite a few companies who offer such services. One of them is Aquilan. Aquilan offers a product it calls Aquilan Patriot Manager. They advertise that APM can help financial institutions "Know Your Customers. 'Red Flag' Suspicious Activity. Prevent Money Laundering."
My time with my banker today was innocuous. His hopefully brief foray into the details of my life were largely at my request, largely for my protection. But the USA PATRIOT Act requires financial institutions to report "suspicious activity" to federal law enforcement agencies. As Aquilan's Web site notes, "For most financial institutions, complex distribution channels, clients with multiple relationships, and disparate adminstration and transaction systems make compliance with the USA PATRIOT Act expensive and nearly impossible."
But here Aquilan's software — and the software of so many other companies, including the one that provided that patriotic sign to my banker — make the "impossible" possible. As Aquilan observes:
Aquilan Patriot Manager offers the quickest path to full compliance with the USA PATRIOT Act, including Anti-Money Laundering (AML) screening requirements, Customer Identification Program (CIP) requirements, Financial Crimes Enforcement Network (FinCEN) rules, and required Office of Foreign Assets Control (OFAC) monitoring. By extracting essential information from both client and administration systems, Aquilan helps financial services institutions assemble the 360º view of customer relationships required to identify suspicious activity and meet regulatory requirements.
Aquilan's software works, I am sure, much the same way as the software that identified possible banking fraud. It works quite the same way as the software that prevented me from removing cash from my own bank account, the software that forced me into my bank branch for a half-hour long meeting with my banker. The software that was wrong, that "red-flagged" my account as showing fraudulent activity when, in fact, it did not.
Aquilan's software, and, I'm sure, all other PATRIOT Act verification software, is deeply flawed. This software is prone to false positives, just like the fraud detection software that brought me into the bank on my day off. The PATRIOT Act verification software is as likely to bring the Federal Bureau of Investigation to my door as the fraud detection software was to bring me to my bank branch. It is likely to necessitate a full government examination of my finances, of my habits, of my life.
It is likely to cause the FBI to pour over my financial records just as my banker and I did today. And those little innocent vignettes, those little guesses at my life that my banker engaged in… it is likely to cause the FBI to construct similar vignettes, to "watch" as I have coffee with a friend and later take in a show.
On December 13th of this year President Bush signed H.R. 2417, the "Intelligence Authorization Act for Fiscal Year 2004". After signing the bill Bush gave a statement in which he noted that "The executive branch shall construe these provisions in a manner consistent with the Constitution's commitment…"
What I wouldn't give to hear President Bush pronounce some of the tongue-twisters and verbally dense sentences contained in his statement. Bush says much in the statement, but he does not mention a key provision of H.R. 2417.
That provision of H.R. 2417 expands the FBI's powers to access your and my bank records. On December 17th I wrote about Bush's signing of the bill, saying that "the legislation allows John Ashcroft to issue himself a 'National Security Letter' in order to conduct many searches."
Specifically, Ashcroft and his FBI no longer need to visit with a judge and explain themselves when they want to see your or my bank records. They no longer even have to get a notice from the bank that our banking habits are "suspicious". No longer can a federal judge say "No, I think you're on a fishing expedition. You can't see George Paine's banking information."
Now John Ashcroft – or one of his underlings – simply have to write down on a piece of paper that your or my bank records are somehow related to national security. They must sign this letter and keep it on file. As soon as they do so they may access my bank records and, like my banker, construct little vignettes for themselves about my day-to-day life.
If this doesn't concern you it should. Think back to the skeleton or two that may be in your closet. That purchase at that shady store, your visit to that questionable bar, your meeting with that questionable person. All this information and more can be found – or, more dangerously, inferred – within your bank records.
Does this still not concern you? Well, I won't mention the fact that this new power given to Ashcroft by Bush's signature is a clear violation of the Fourth Amendment, which states:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
I understand that for most people the Fourth Amendment, like the entire Constitution, is little more than a theoretical document. But what you must understand is that it is written like it is for a reason. It is written as it is to prevent the abuse of power. It is written as it is because the Founding Fathers understood that "power corrupts and absolute power corrupts absolutely."
For an example of this corruption one must look no further than the Federal Bureau of Investigation itself. Take, for example, the program known as COINTELPRO, a program conceived "to neutralize political dissidents". I write more about COINTELPRO in my post on the signing of H.R. 2417. Suffice it to say that a great many people who had broken no law, who had done nothing wrong, were not only investigated by the FBI but were the targets of campaigns to "discredit and publicly destroy" them.
One must look no further than the Drug Enforcement Administration and Kevin Tamez.
Tamez is fifty years old and lives in Mount Laurel, New Jersey, a pleasant suburb of Philadelphia. Until December Tamez served as the Associate Special Agent in Charge of the DEA's New York office. But on Monday, December 15th, a 214-count indictment was issued against Tamez, as Reuters reported at the time. Tamez was accused of "embezzling DEA funds and using federal resources to conduct work for a private investigations firm."
What federal resources did Tamez misappropriate? Tamez was charged, specifically, with "illegally obtaining information from law enforcement computer systems and databases and using DEA personnel and resources for work he did for a private investigations firm."
Imagine Special Agent Tamez as an FBI agent. Imagine him issuing himself a National Security Letter and proceeding to pass the information gathered with that Letter on to his client, perhaps your spouse, perhaps a business competitor. Your bank records aren't all that Tamez can access. He can access your interactions with virtually every business that deals in your money – that is, nearly all. As I noted earlier, H.R. 2417 allows Tamez to access records "from your auctions on eBay to your credit card receipts to your insurance records".
It isn't only Agent Tamez with access to this information. Do you remember Filegate? That was the scandal in which the White House requested the FBI files of a number of prominent Republicans – and got them. The Clinton Administration requested the files of such Republicans as James Baker, a former Secretary of State, Secretary of the Treasury and Chief of Staff to a president.
In fact more than 1,000 FBI files were requested and obtained by the White House. At the time Judicial Watch (a group which was a significant thorn in the side of the Clinton Administration and now of the Bush Administration) accused the White House of using the "Ellen Rometsch strategy", explaining that "By historical definition, the Ellen Rometsch strategy is the use of FBI files by J. Edgar Hoover".
Larry Klayman, chairman and general counsel of Judicial Watch, said that "Judicial Watch and others believe that this is the Clinton Administration's last line of defense to its scandals, to smear people, to scare people, to make sure than they can hold on to power."
This sounds uncomfortably familiar. The Bush Administration, after all, engaged in similar but even more egregious behavior recently. After former U.S. Ambassador to Iraq Joseph Wilson wrote an op/ed piece in the New York Times accusing Bush of lying about Iraqi uranium procurement efforts the White House leaked information that Wilson's wife, Valerie Plame was an undercover CIA operative. The leak appeared to be, as Warblogging wrote shortly after, calculated by Karl Rove "to send a very, very specific message. He wanted everyone to see what happens when someone speaks out against Bush. He wanted everyone to see the consequences of contradicting George Bush's lies. Careers end, lives are destroyed. Those are the consequences, that was the message."
And so we return to your bank records, to your purchases from Amazon.com, to your visits to that sketchy bar or the presents purchased for that man or woman who isn't your spouse. Not only your bank records, but the bank records of influential politicians opposed to whatever party may currently be in power. The detailed records and vignettes of lives opposed to whoever may be currently in the seat of power. And to Valerie Plame, to Filegate, to Special Agent Tamez, to COINTELPRO.
We realize that the Fourth Amendment – and the rest of the Bill of Rights – exist for a reason, and that absolute power corrupts absolutely. With H.R. 2417, with the USA PATRIOT Act, with its ability to detain American citizens indefinitely without charge or access to attorneys or judges the Bush Administration now has absolute power. And with the Valerie Plame affair and so many others the Bush Administration has proved that absolute power does indeed corrupt absolutely.
The only hope we have now is for the entire electorate to appeal en masse for the restoration of restraint and accountability to the White House. You and your friends, you and your coworkers, you and your family must appeal to the press and to your elected officials for the return of the rule of the Constitution and reason. You must reassert your civil liberties and insist that White House aides, overzealous FBI agents and corrupt DEA agents not have access to your banking records without probable cause. You must insist that your private details remain private without probable cause. You must insist that you and your neighbors not be jailed without charge, not be disappeared without lawyers, not be held without judicial review.
You must insist that the Founding Fathers knew what they were doing when they wrote the Fourth Amendment – and the rest of the Constitution – and that their wisdom is no less relevant today than it was in 1776.
Do not think for a moment that your status as a relatively law abiding and loyal citizen will save you from the long arm of the government. George Soros recounts just how little being a law abiding and loyal citizen can do for you when it's too late. He explains in his latest book how, when he was thirteen, he was tasked with delivering notices to the Jewish community of Budapest, Hungary ordering them to appear at the Rabbinical Seminary with food and clothing the following day. On the advice of his father he informed those he delivered the notice to that they would be deported when they showed up. One man told him "They can't do that to me. I've always been a law-abiding citizen." The following day he was sent to a concentration camp.
I am not saying that George Bush is going to send you or anyone else to a concentration camp tomorrow. I am saying, however, that civil liberties are everyone's responsibility – and that when the rubber hits the road it matters not whether you are a law-abiding citizen or not. It matters only whether someone in power wants you or not.