"I can't say for sure that there wasn't the possibility that we would have come across some lead that would have led us to the hijackers," FBI Director Robert Mueller told journalists last week. Evidence had emerged that FBI headquarters
- dismissed speculation by an agent in Minneapolis suggesting that French-Moroccan flight student Zacarias Moussaoui might be planning to "fly something into the World Trade Center,"
- failed to connect the Moussaoui lead with a July report from Phoenix suggesting that Osama bin Laden might be attempting to infiltrate U.S. flight schools,
- and failed to share either piece of information with the interagency Counterterrorism Security Group.
But the next day, Attorney General Ashcroft announced he was loosening guidelines that restrict the Bureau's surveillance of political and religious organizations.
"The government is rewarding failure," said Laura W. Murphy, director of the national office of the ACLU. "It seems when the FBI. fails, the response by the Bush administration is to give the bureau new powers, as opposed to seriously look at why the intelligence and law enforcement failures occurred....These new guidelines say to the American people that you no longer have to be doing something wrong in order to get that FBI knock at your door."
Critics denounced the new guidelines as "another step by the Bush administration to roll back civil-liberties protections in the name of improving counterterrorism measures." At the press conference announcing the changes, Ashcroft was unable to provide a definition of the terrorism his new guidelines were intended to combat. "Well, obviously, terrorism has definitions," he said. Nor could Justice Department officials provide a working definition of terrorism, referring reporters to those already found in case law and a series of government rules and regulations.
The guidelines Ashcroft overturned were originally written by President Gerald Ford's attorney general, Edward Levi, after disclosures that the Bureau had engaged in a program of domestic surveillance, monitoring organizations and individuals ranging from the Ku Klux Klan to the Rev. Martin Luther King. They were subsequently revised by Ronald Reagan's attorney general, William French Smith. The Center for National Security Studies (CNSS) has observed that many of the criticisms leveled against the current guidelines are the criticisms originally leveled at the Levi guidelines, which the Smith modifications were intended to correct. The Justice Department fact sheet distributed at the Ashcroft press briefing stated that the Levi guidelines "generally barred the FBI from taking the initiative to deter and prevent future crimes. Actually, the Smith guidelines state, "In its efforts to anticipate or prevent crimes, the FBI must at times initiate investigations in advance of criminal conduct." An investigation may be opened, whenever "acts or circumstances reasonably indicate that two or more persons are engaged in an enterprise for the purpose of furthering political or social goals wholly or in part through activities that involve force or violence and a violation of the criminal laws of the United States." The Bureau can also open an investigation when it receives any information "whose responsible handling requires some further scrutiny."
Critics took issue with an official's assertion that the old guidelines would have prevented agents from searching the Internet for information about biological warfare. "Nothing in law or logic prohibits the FBI from opening investigations based on public source material.... The FBI opens investigations based on any credible source, including news reports," a CNSS report asserts. For instance, the FBI opened its investigation of the Rodney King case as soon as officials had viewed the broadcast of the videotape of his apprehension. A key purpose of the Smith guidelines was to balance First Amendment protections with the FBI's need to investigate the advocacy of violence. According to the CNSS, as of 1995 the FBI was conducting approximately two dozen full terrorism investigations per year -- nearly two thirds of them initiated before a crime had been committed: "When ... statements advocate criminal activity or indicate an apparent intent to engage in crime, particularly crimes of violence, an investigation under these guidelines may be warranted ...." Operating within the Smith/Levi guidelines, the Bureau has nonetheless established entire sections devoted to groups such as Hamas and al-Qaeda, and has been able to prevent numerous terrorist attacks, including the Millenium bomb plot that targeted Los Angeles airport.
"To be a Black Panther was not against the law," former U.S. attorney Zachary Carter said. "To be a Black Panther and conspire to kill policemen or blow up buildings was against the law," noting that investigations of the Panthers historically did not always maintain that distinction. In the absence of the Levi guidelines "law enforcement authorities could conduct investigations that had a chilling effect on entirely appropriate lawful expressions of political beliefs, the free exercise of religion and the freedom of assembly."
As Senator Patrick Leahy noted during debate on the so-called USA Patriot Act:
During the height of antiwar protest and urban unrest in the late 1960's, Army intelligence joined the FBI in monitoring domestic political activity. National intelligence agencies such as CIA and NSA received extensive reporting from the FBI and the military, as well as from their own intelligence gathering on critics of government policy. Other law enforcement agencies such as the Internal Revenue Service were used to selectively investigate organizations based on their political views. Under Presidents of both parties, these agencies disseminated information to the White House about the lawful political activities and opinions of critics of Administration policy--all under the rubric of protecting the national security. The scope of intelligence gathering swept up environmental groups, women's liberation activists, and virtually any organization that mounted peaceful protest emonstrations.
During this unfortunate period in our history, the government did more than just gather information about protest and dissent. The FBI developed a systematic program to disrupt domestic groups and discredit their leaders, known as "COINTELPRO." The FBI's efforts included the selective sharing of information from its investigations to deny people employment and smear their reputations. Beginning with Communist and socialist groups, the FBI's COINTELPRO operations spread in the 1960s to the Klan, the "new left," and black militants. Elements of the civil rights and antiwar movements were targeted for disruption because of suspicion that they were "influenced" by communists; others because of their strident rhetoric. When some targets were suspected of engaging in violence, the FBI's tactics went so far as to place lives in jeopardy by passing false allegations that individuals were government informants.
The most notorious case was J. Edgar Hoover's vendetta against Dr. Martin Luther King, Jr. The Church Committee documented the FBI's effort to discredit Dr. King by disclosing confidential information that was obtained from wiretaps and microphones targeted against him. The wiretaps were justified to the Kennedy and Johnson Administrations on the grounds that some of Dr. King's advisors were Communists, but this excuse allowed the FBI to mount continuous political surveillance to undermine Dr. King's effectiveness. The FBI disseminated allegedly derogatory information not only within the government, but to media and other private organizations including efforts to deny Dr. King the Nobel Peace Prize. Most vicious of all was the FBI's preparation of a composite tape recording that was sent to him anonymously with an apparent invitation to commit suicide. During the 1964 Democratic National Convention in Atlantic City where the greatest controversy involved seating the Mississippi Freedom Democratic Party delegates, the FBI provided the Johnson White House a continuous flow of political intelligence from the wiretaps on Dr. King's telephones in AtlanticCity.
These methods of domestic political surveillance and covert manipulation and disruption have no place in a free society. They are lawful for the CIA to use against terrorists abroad, under Presidential authorization and oversight by the Intelligence Committees. In the United States, however, such surveillance activities by our government offends our fundamental First Amendment rights of speech and association, and undermines our democratic values. Since the Church Committee investigation, one of the main reasons for maintaining barriers between domestic criminal investigations and foreign intelligence operations has been a concern that the no-hold-barred methods used abroad must not be brought back into this country./em>
The Church Committee recommended a series of safeguards to restrict the collection of information about Americans by the CIA, the National Security Agency, and other U.S. intelligence agencies. The Attorney General issued guidelines for FBI investigations and Presidents issued Executive Orders requiring procedures approved by the Attorney General for the collection and retention of information about Americans by U.S. intelligence agencies. These guidelines and procedures have served for the past 25 years as a stable framework that, with rare exceptions, has not allowed previous abuses to recur.
(The Patriot Act, which was rushed through Congress in October 2001, granted the government a wide array of powers, nominally to facilitate the war on terrorism, including latitude in monitoring electronic communications.)
Some of the Ashcroft guidelines address the relationship of FBI headquarters to its field offices. These appear to be in response to complaints from agent Coleen Rowley of the Minneapolis field office. Rowley's 13-page memo of May 21, 2002 to FBI Director Robert Mueller asserted that headquarters had repeatedly held back agents from investigating Zacarias Moussaoui, and noted that the Minneapolis office had not been informed of the Phoenix memo concerning possible bin Laden associates in Arizona. Under the new guidelines field offices can initiate counterterrorism investigations on their own; headquarters will review such inquiries within 180 days. The St. Louis Post-Dispatch noted, however,
Mr. Ashcroft has been extraordinarily resourceful in turning the devastating critique of Special Agent Coleen Rowley into a justification for his new guidelines. Ms. Rowley's memo was proof that the Justice Department had been misleading the country for months about what the FBI knew before the Sept. 11 attack. Now, the memo is part of the Ashcroft brief for revising the guidelines, even though Ms. Rowley's complaint had nothing to do with restrictions on when the FBI can initiate an investigation.
Among the most sensitive guidelines that have been modified are those concerning use of undercover agents in public meeting places. The CNSS commentary above notwithstanding, the FBI has apparently interpreted its current guidelines to mean that it must have probable cause, or information that a crime has been committed, before sending undercover agents into churches, mosques, or political rallies. A full investigation of this sort requires approval by the attorney general. The new guidelines lift those requirements, as well. Eric Holder, former deputy attorney general, observed, "It's a difficult thing to try to strike the balance between the increased vigilance that we clearly need and at the same time not fall back on the patterns that led to the reforms of the 1970s."
Rep. John Conyers, the leading Democrat on the House Judiciary committee, called the new guidelines a "step backwards for civil liberties in this country." "The administration's continued defiance of constitutional safeguards seems to have no end in sight," he wrote. "This decision decimates the Fourth Amendment." David D. Cole, law professor at Georgetown University, disagreed. "There is no Fourth Amendment constitutional problem with the government surfing the Web or going into a public space or attending a public event," he said, referring to the constitutional limits on governmental intrusions. "But there are significant First Amendment concerns. There is a real cost to the openness of a free political society if every discussion group needs to be concerned that the F.B.I. is listening in on its public discussions or attending its public meetings."
As has been the case with other Bush administration encroachments on civil liberty, criticism was not confined to Democrats. Speaking on the CNN program "Novak, Hunt and Shields," Representative James Sensenbrenner of Wisconsin said, "I get very, very queasy when federal law enforcement is effectively ... going back to the bad old days when the FBI was spying on people like Martin Luther King.... Merely having the FBI go in and investigate political expression which might not be approved by a majority of the people, but which is protected by the First Amendment, comes awful close to the edge." Sensenbrenner observed that no one has demonstrated that the FBI guidelines contributed to the September 11 terrorist attacks. "They have been extensively reviewed by Congress, as well as by the Carter, Reagan, first Bush and Clinton administrations. And none of these presidents and their attorneys general decided that we needed to have a significant modification of those guidelines."
Others noted that, not only was there no evidence that the 1970 guidelines had hindered the FBI in its pursuit of terrorists, but there was not evidence that any of the hijackers had said anything about their undertaking at any mosques or meetings of Islamic fundamentalists in this country. James X. Dempsey, the deputy director of the Center for Democracy and Technology, observed "Not a single one of the 19 guys, or 20 if you count Moussaoui, did anything overtly political," he said. "Not one of them said, `I support Palestinian rights' or `I hate America' in a public way." Dempsey predicted that the new guidelines could stifle public debate in a way that might encourage more violent protest. "Allowing people to freely and openly advocate, say, Palestinian rights in the hope of persuading others creates the crucial safety valve that keeps people from turning to violence to force change."
Jason Erb of the Council on American-Islamic Relations voiced concern that the Bureau would waste resources on wide-ranging inquiries that threatened civil rights, rather than focusing on evidence of crimes. Speaking to the Washington Post and the New York Times, Erb suggested that the measures could threaten religious freedom and limit political dissent. "It starts to erode some of the trust and good will that exists in these institutions if you're afraid they have been infiltrated by an undercover agent," he said.
Some observers suggested that the new regulations would actually exacerbate problems at the FBI. "The problem with the 9/11 investigation was a failure to analyze and act on relevant information," said Gregory T. Nojeim of the ACLU. "And their solution is to gather exponentially more information that they have no possible way to properly analyze."
As The Economist commented in its June 1 issue, "Americans deeply resent the idea of their government being able to snoop on them. A post-war attempt to set up a domestic security agency was killed by that famous liberal, J. Edgar Hoover, on the grounds that it would be an American Gestapo." Apparently concerned that Americans may awaken to the fact that their liberties are being systematically eroded, the Bush administration has tried to make "the most draconian policy changes sound seductively innocuous," as the editorial writers of the New York Times wrote recently. Attorney General Ashcroft described the changes as nothing more than allowing agents to attend public gatherings and surf the Internet. "That is profoundly misleading," the Times said. "In reality Mr. Ashcroft, in the name of fighting terrorism, was giving F.B.I. agents nearly unbridled power to poke into the affairs of anyone in the United States, even when there is no evidence of illegal activity."
... [I]f agents were routinely to do searches for Web sites and chat room comments critical of the war in Afghanistan, and follow up with personal visits, the rights of law-abiding Americans would be infringed. Similarly, the government wants more freedom to use "data mining," even without probable cause. That could mean that F.B.I. agents will show up at the doors of people who order politically unpopular books on Amazon.com or make phone calls to organizations critical of the government.
Lifting the ban on monitoring religious institutions raises similar issues. Houses of worship need not be off-limits to F.B.I. investigators, any more than public meetings of secular organizations should be. But there will be an inevitable temptation to target organizations — whether mosques, synagogues or political groups — simply because of government antipathy. Loosening the rules for recruiting confidential informants, another step announced yesterday, could easily lead to a resumption of questionable practices.
At his press conference, Ashcroft claimed that the new rules would be implemented with "scrupulous respect for civil rights and personal freedom," but without providing any specifics. Critics pointed out that Ashcroft & Co. had already ordered military tribunals for non-U.S. citizens involved in terrorism, railroaded the Patriot Act through congress, and revoked attorney client privileges. Appearing before the Senate Judiciary committee in December to discuss the tribunals, Ashcroft refused to be specific about who would be tried, whether only war crimes would be considered or " violations of the laws of war and other applicable laws" as the order stated, the circumstances under which a death sentence could be imposed, and whether members of the administration could overrule an acquittal. He sought to justify his decision to monitor certain attorney-client communications by quoting from what he said was an al-Qaeda training manual, noting "they are directed to take advantage of any contact with the outside world to 'communicate with brothers outside prison and exchange information that may be helpful to them in their work.'" His performance prompted Salon.com's Jake Tapper to write, "if determined elusiveness was [the] yardstick, Ashcroft did indeed take home the gold." Ashcroft also equated opposition to administration policies with aiding the enemy.
PTo those who scare peace-loving people with phantoms of lost liberty, my message is this: Your tactics only aid terrorists, for they erode our national unity and diminish our resolve. They give ammunition to America's enemies and pause to America's friends. They encourage people of good will to remain silent in the face of evil.
... [F]anatics ... seek to extinguish freedom, enslave women, corrupt education and to kill Americans wherever and whenever they can."
Many of these fanatics are still in our communities plotting, planning and waiting to kill again. They enjoy the benefits of our free society even as they commit themselves to our destruction. They exploit our openness -- not randomly or haphazardly -- but by deliberate, premeditated design.
Pressed by Senator Russ Feingold to clarify if he was referring to the Judiciary Committee when he said "Your tactics only aid terrorists," Ashcroft said he was referring to news organizations who had described his monitoring of attorney-client communications as "eavesdropping." This he described as a "gross misrepresentation," saying that prisoners would be informed ahead of time that their calls were being monitored.
Senator John Edwards pointed out extensive loopholes in the military tribunal rules, including provisions for unlimited detention, application of the death penalty based on a 2-1 vote of judges, no definition of the burden of proof, and no appeals process. Senator Hatch read a statement by Franklin Roosevelt's attorney general, Francis Biddle, in support of tribunals, substituting "al-Qaeda" for "Nazis" and "terrorists" for "saboteurs." "History shows the driving force behind" those tribunals, Senator Leahy responded, "was to cover up the mistakes of J. Edgar Hoover. Two saboteurs had to beg the FBI to arrest them!"
The ACLU's Nojeim suggested that the Privacy Act of 1974 offered one legal basis from which to attack the new guidelines. Part of the heritage of the Watergate era, the law prohibits the government from keeping records "describing how any individual exercises rights granted by the First Amendment," except where authorized by statute, where the individual consents, or where the information is "pertinent to and within the scope of an authorized law enforcement activity." While the FBI would presumably argue that the last exemption applied to its new guidelines, Nojeim doubted that the Bureau would be able to authorize its own activity.
The Bush administration is not the only national government to use the events of September 11 to limit the rights of citizens. "[T]he environment for human rights activism changed sharply after 11 September in some parts of the world, setting back the gains of many years," Amnesty International's 2002 Annual Report states.
In the UK, the government derogated from Article 5(1) of the European Convention on Human Rights and introduced legislation to detain foreign nationals indefinitely without charge or trial. In Zimbabwe, political opponents of the government and those who published articles critical of the government's human rights record were accused of supporting "terrorism". At the end of 2001 the Zimbabwean government was in the process of introducing legislation to create a new crime of "terrorism", punishable by death; to punish with terms of imprisonment non-violent civil disobedience, criticism of the President and disturbing the peace; and to criminalize all journalism by those not licensed by the state. In India, a new ordinance was promulgated which gave the police wide powers of arrest and provided for up to six months' detention without charge or trial for political suspects.
"Mr. Ashcroft has invented a fictional lesson from 9/11 to topple restrictions that were grounded in the very real lessons of Mr. Hoover's abuses. COINTELPRO didn't lead to prosecutions or make the nation safer. It's doubtful that Mr. Ashcroft's more benign version will be any more successful. Chasing phantom dangers risks our liberty without securing our safety," the St. Louis Post-Dispatch observes. Amnesty International's report notes the widespread racist attacks against Muslims, Arabs, Sikhs, and others of Middle Eastern or Asian origin in the aftermath of 9/11. Unfortunately the same groups are likely to be victimized disproportionately by ethnic profiling in the name of counterterrorism. The legal conflict has already begun. Five men from minority ethnic groups are suing major airlines for refusing to take them as passengers. The Guardian'sJulian Borger predicts "Case by case, the cause of everyday freedoms will put up a struggle against the new security requirements of the terrorist age, and they will doubtless emerge diminished but not entirely defeated. The fact that battle will be so hard-fought says a lot of good things about this country. America's vulnerability lies in its virtues.
"Chasing phantom fears" Editorial. St. Louis Post-Dispatch. 2 Jun. 2002
"Where gumshoes fear to tread" The Economist 1 Jun. 2002
"Key Republican blasts new FBI guidelines" CNN.com 1 Jun. 2002
Borger, Julian "Shamed FBI's snooping powers increased" The Guardian (UK). 31 May 2002
York, Anthony "Ashcroft eases domestic spy rules" Salon.com. 31 May 2002.
"An Erosion of Civil Liberties" NY Times 31 May 2002
Miller, Bill "Ashcroft: Old Rules Aided Terrorists" Washington Post 31 May 2002
Lewis, Neil A. "Ashcroft Permits F.B.I. to Monitor Internet and Public Activities" NY Times 30 May 2002
Van Natta Jr., Don "Government Will Ease Limits on Domestic Spying by F.B.I." NY Times 29 May 2002
Report 2002 London: Amnesty International, 2002.
Tapper, Jake "Ashcroft terrorizes Senate panel" Salon.com 7 Dec. 2001
Congressional Record (Senate) 25 Oct.2001 : S10990-S11060
The FBI Domestic Counterterrorism Program Washington, DC: Center For National Security Studies, 26 Apr. 1995.