Here is another item for President Obama’s to do list: reinstate curbs on the FBI’s spying power. Attorney General Edward Levi established guidelines limiting the Bureau to American targets “engaged in or believe to be about to engage in criminal activity.” Levi imposed this sensible limit in 1976 in the wake of a tsunami of abuses by Hoover’s agency. In 2008, Attorney General Muskasey revoked them. The new guidelines overturn longstanding limits on FBI domestic security operations that brought it into line with our constitution. Obama has said “we reject as false the choice between our safety and our ideals.” Obama can put that notion into practice by bringing back Levi’s “reasonable suspicion” standard.
In September 2008, the Department of Justice rewrote the Attorney General Guidelines for FBI Investigations, overturning longstanding limits on investigations of legal political activity. Under the new “Mukasey Guidelines,” the FBI is now authorized to conduct invasive “assessments” without having a factual predicate to justify its actions.
From the age of McCarthyism through 1971, the FBI conducted a wide-ranging campaign of monitoring and disrupting political groups. At the peak of these programs, known as COINTELPROs, the FBI investigated all major protest movements, including civil rights activists, Vietnam war protestors, women’s liberation advocates, and environmentalists. Standard methods included bugging homes and offices, wiretapping, break-ins, informants, and provocateurs. The FBI often spread misinformation, fomented internal dissension, harassed people, and provoked illegal activity. These abuses were exposed by the Citizens Commission to Investigate the FBI, which raided an FBI office in Media, Pennsylvania in 1971 and provided documents to the mainstream press. Soon afterward, the Senate’s Church Committee further uncovered a slew of abuses by the FBI. Not long after the Democrats had their own offices burglarized, Levi issued guidelines on domestic security investigations to head off legislative reforms.
The Levi guidelines required a suspicion of criminal conduct before a domestic security investigation could be opened. There had to be facts reasonably indicating that two or more persons were 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. Preliminary investigations could be opened under a lower standard.
Today, these restraints have been abolished by executive fiat. Now, the FBI does not need to suspect any person or group of criminal activity before initiating an “assessment.” A policy briefing by the Center for Democracy and Technology outlines how the Mukasey Guidelines expand the scope of threat assessments. “Assessments” require only an “authorized purpose,” meaning that the FBI must claim it is acting to protect against criminal or national security threats. So long as the FBI says it is concerned about potential terrorism, it may investigate people or organizations they have no factual basis for suspecting of wrongdoing. Further, the Guidelines explicitly authorize the surveillance and infiltration of peaceful advocacy groups in advance of demonstrations, thus threatening First Amendment activities.
Mukasey’s Guidelines allow the FBI to utilize a number of intrusive techniques during assessments — unlimited physical surveillance, searching commercial databases, tasking informants to attend meetings and surveillance, and engage in pretext interviews in which FBI agents misrepresent their identities in order to elicit information.
Nothing in the new Guidelines protect entirely innocent Americans from being thoroughly investigated by the FBI. Anyone can have a dossier opened based on lawful activity. Investigations or “assessments” have a chilling effect on the system of freedom of expression that lies at the core of America’s constitutional framework. This chilling effect, said Dempsey and Cole in Terrorism and the Constitution, “has a corroding effect on the political and social integration necessary to the maintenance of security in a democratic society.”
In a free society, a police agency should not be authorized to spy and collect information on lawful political activity. But that is what the new Guidelines endorse without reservation. During the 1980s, the FBI violated the Levi guidelines in its investigation of CISPES and others challenging U.S. policy in Central America. But at least the guidelines were there to operate as a deterrent and a principle.
For thirty years, the Levi guidelines were gradually watered down. This final blow shows that the FBI is incapable of policing itself. The Constitution Project’s 2009 Transition recommendations provide a concise set of principles that should guide FBI investigations. Although Attorney General Eric Holder has the discretion to re-write the FBI guidelines, that is clearly not sufficient given the FBI’s history. Passage of the Ending Racial Profiling Act (HR 4611 and S2481) would be a start. Congress and the President should work toward a legislative charter for the FBI, limiting the FBI’s investigative authorities by requiring a factual predicate sufficient to establish reasonable suspicion before intrusive investigative techniques may be authorized and prohibiting investigations based upon the exercise of First Amendment rights.
Song of the Day:
“They take away our freedom
In the name of liberty
Why don’t they all just clear off
Why can’t they let us be.”
– Still Little Fingers
“Suspect Device”
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* to be sung to the tune of “Baby Come Back” by Hall & Oates