Why Those Who Value Constitutional Rights and Civil Liberties Must Ask Congress to Initiate "Church Committee"-type Hearings
Why has Congress not yet awoken to the fact that since 9-11 we have been sailing into a perfect storm? Here are just some of the turbulent winds blowing and pushing officials in the wrong direction:
• Politicians who stoke the fear of terrorism while forcing underling officials to promise they can protect the public by "pre-empting" all threats, hyped and unhyped;
• The erosion of the prior legal safeguards, even the firmly entrenched ethical and legal (jus cogens) principles prohibiting torture;
• The broad legal authority given to the executive by Congress in such laws as the Patriot Act and Military Commissions Act, and also the abuse of "presidential war powers" through warrantless monitoring and authorization of offshore, indefinite detention;
• Perverse, counterproductive job and profit incentives for the 854,000 agents, analysts, operatives and private contractors/consultants who staff the "Top Secret America" surveillance-security complex;
• Lack of any effective, independent oversight (despite the 9-11 Commission's prescient and serious concerns enumerated years ago), as exemplified by the hobbled Privacy and Civil Liberties Oversight Board;
• And the basic need for war presidencies to maintain momentum in the face of popular disapproval of the ongoing conflicts and occupations in the Mideast.
Such systemic forces will always produce a similar bad result -- for our rights and our safety.
Even the rather conservative Washington Post is quite worried about what's likely to come of this clearly out-of-control pressure cooker called "Top Secret America." If it cannot be quickly reined in, we are almost certain to witness and suffer the worst of Cold War McCarthyism and Vietnam COINTELPRO abuses. That prediction is based on what has happened before when militarist forces turned inward on U.S. citizens. Even if government officials are well-intentioned, these forces increase the chances for error and opportunism. Some would say we've entered a perfect storm already, given the numerous examples of improper targeting of domestic advocacy groups, most recently the FBI raids on various anti-war activists' offices and homes in Minneapolis and Chicago.
Let's not forget how the "war on terror" was originally sold to the American public: as "Let's fight them over there so we don't have to fight them here." But Homeland Security now admits the "war on terror" is increasingly being fought at home.
FBI agents are motivated, for instance, to check off "statistical achievements" by sending well-paid, manipulative confidential informants into mosques and apparently also into various advocacy and anti-war groups. In the Iowa heartland, for instance, FBI surveillance, trash searches, terrorism database paperwork, and "statistical accomplishments" regarding a few student protesters in Iowa City before the 2008 Republican National Convention fill hundreds of file pages without providing any plausible justification for the operation.
These abuses attack our basic constitutional right to dissent without making us safer. Relatively simple ways to address and reduce each of these counterproductive forces do exist, however -- ways that preserve our liberties while actually enhancing our collective security. The list below outlines the most serious current civil liberties problems and the potential fixes. It is based on my years teaching constitutional criminal procedure to FBI agents and police officers, and also on my firsthand exposure to and understanding of some of the pre- and post-9-11 failures:
1) In the course of arguing the Holder v Humanitarian Law Project case in the Supreme Court (decided in late June of this year), Georgetown Law Professor David Cole warned explicitly that this law could be used to improperly target and prosecute a wide range of humanitarian, human rights and peace advocacy groups, and prevent them from exercising freedom of speech and other First Amendment rights. However, Cole failed in his arguments to overturn a few words in the Patriot Act that broadened "Material Support of Terrorism" to encompass "expert advice and assistance" to designated "foreign terrorist organizations." (For more information, see "How Easy Is It for Peaceful People to Violate the Patriot Act?") The problematic Supreme Court decision, which essentially makes advocacy of peace and humanitarian issues illegal with respect to 40-some groups designated by the State Department, is surely something that Congress never intended in hastily passing the hundreds of pages of Patriot Act revisions in October 2001. As a result, missionaries, fair election proponents and humanitarian workers could be placed in legal jeopardy. People like Three Cups of Tea author Greg Mortenson, who had to meet with a variety of foreign nationals in war zones in order to forge a consensus to build schools for girls in Pakistan and Afghanistan, could be in trouble, as could former president Jimmy Carter, who engages in pro-democracy efforts to monitor election fraud in many places in the world. The paradox is that true non-government-affiliated efforts aimed at furthering education, humanitarian assistance, free elections and non-violent conflict resolution in other parts of the world are widely recognized as more effective and beneficial than U.S. military or U.S. State Department-controlled efforts.
The simple fix would be to revise the phrase "expert advice and assistance" in the Patriot Act, clarifying that Congress never intended to define "material aid or comfort" to designated organizations so that it would chill or hamper the free speech rights of members of non-governmental humanitarian, peace and pro-democracy groups.
2) "Pre-emptive" security -- with its false promise of preventing all future acts of terrorism, and its accompanying pressures -- should be understood as a real Mission Impossible (not to say Mission Stupid). It led to the immediate erosion of the post-Church Committee Attorney General (AG) Guidelines that required varying levels of factual justification before targeting any domestic group. Shortly after 9-11, AG Ashcroft began by loosening the old guidelines and allowing FBI agents to go into churches, mosques and other public places. The final nail in the coffin was the decision by the Bush Administration, in one of its last official acts, to reverse the need to demonstrate some level of factual justification and promulgate a new and very low legal standard for all types of cases. This new standard means, in effect, that the FBI has only to deny that a group has been targeted based solely on its exercise of First Amendment rights. Civil libertarians were initially aghast at the prospect of this total erasure of any real investigative guidelines. But knowing of Obama's background as a constitutional lawyer, they thought it better to bring the issue to Bush's successor. It should be noted that the demise of the old AG Guidelines came after the Inspector General (IG) discovered that the FBI had served hundreds of thousands of mistake-ridden and unjustified National Security Letters, and also found many compliance problems in the FBI's opening of cases and handling of informants.
3) The blurring of protest activities and dissent with terrorism dovetailed with the launching of U.S. wars after 9-11. For example, in October 2003, the FBI put out "Intelligence Bulletin 89," which focused on protesters' plans for the Free Trade Area of the Americas meetings in Miami and anti-war marches in Washington, D.C. I personally made an IG complaint to the DOJ IG about this blurring, but it was punted back to the FBI and then swept under the rug. New York Times reporter Eric Lichtblau exposed the problematic Bulletin but the DOJ retaliated by yanking Lichtblau's press pass, and the FBI ordered its 56 field divisions to cease contact with the reporter. (The sorry episode is described beginning on page 122 of Lichtblau's book, Bush's Law: The Remaking of American Justice.) Perhaps if that overly defensive posture had not been taken, problems would not have reached the proportions later found in the September 2010 report, "A Review of the FBI's Investigations of Certain Domestic Advocacy Groups." The wrongheaded mindset that dominated law enforcement almost immediately after the launching of the Iraq War (and the larger "war on terror") is most clearly seen in what a spokesman for the California Anti-Terrorism Information Center (CATIC) said when forced in 2003 to defend his agency's unjustified targeting of anti-war protesters without any factual evidence. CATIC Spokesman Van Winkle, apparently without thinking too hard, reasoned that evidence wasn't needed to issue warnings on war protesters: "You can make an easy kind of a link that, if you have a protest group protesting a war where the cause that's being fought against is international terrorism, you might have terrorism at that [protest]. You can almost argue that a protest against [the "war on terror"] is a terrorist act." In a similar vein, the Department of Defense (DOD) for years administered an annual mandatory anti-terrorism test that equated protest with terrorism. The test asked, "What is an example of low-level terrorism activity?" The correct answer was "protest."
Simple fix: It's fine to create one set of guidelines for all crime programs. However, some reasonable level of factual justification should be required before the FBI or other federal law enforcement agency can target a group or individual. The Department of Justice (DOJ) IG should immediately undertake a review of all "terrorism enterprise investigations" begun by the FBI after 2006, when the IG's prior investigation ended.
Similarly, listen to the compelling testimony of anti-drilling activist Virginia Cody after she discovered she had been spied on by the Pennsylvania Department of Homeland Security by authorities who actively worked with industry officials to quash dissent.
Also noteworthy is the fact that Joint Terrorism Task Forces (JTTFs) and Fusion Centers combine local and state police jurisdiction with federal jurisdiction. So crowd control, something not usually within federal jurisdiction, becomes a "joint" activity. The CIA has members on these joint task forces and fusion centers, even though the CIA charter bars the organization from operating domestically.
4) Front-loaded "statistical achievements" are the main way of evaluating job performance inside the FBI and probably the other 3,000 or so agencies and contractors thought to be operating in "Top Secret America." The 854,000 operatives, agents, analysts, private contractors and consultants (believed to average about $90,000 per year in salary) are under more than a little pressure to prove they are earning their generous paychecks and in competition with each other to move up the ranks. So an elaborate grading system is used that checks the initial projection of work in a quantitative, not qualitative way. An FBI agent, for instance, collects "stats" for opening files, disseminating information, adding individuals to a terrorist database or a watch list, serving subpoenas and national security letters for records, recruiting and contacting secret sources and informants, executing searches/seizures, making arrests, and getting people charged and/or convicted. Given the change of emphasis from prosecution to intelligence data collection and analysis, more and more of the "stats" do not involve any judicial oversight. The danger exists that the pressure of producing "stats" would encourage FBI agents and personnel of the other 3,000 entities to open fruitless investigations and try to fit garden-variety crimes into the terrorism category.
The fix would be to stop equating protest, including acts of civil disobedience, with terrorism. The Patriot Act's definition of domestic terrorism begins with these words: "Acts dangerous to human life...." Protest and dissent - and even acts of civil disobedience involving trespass and minor property damage - do not constitute acts of terrorism. Issues of crowd control, even during large marches and rallies, do not normally threaten national security and should not involve federal authorities.
Pressure to "pre-empt" plus lack of oversight in managing "top-echelon informants" lead to repeated examples of opportunistic targeting and entrapment of people not predisposed to commit crimes.
Cases that don't pan out or were never justified to begin with, like the "terrorism enterprise investigation" of the students in Iowa City referred to earlier, can fulfill this unending need for "stats." Ultimately, if no quality-over-quantity mechanism is found to evaluate work performance, agencies are likely to return to the Cold War-era "post and float" system of "papering files." McCarthyism and COINTELPRO-type abuses are bound to recur, this time with "terrorist" substituted for the old bogey of "communist."
5) Because the 9-11 Commission was very concerned about the much greater authority being given to the FBI and other agencies in the "war on terror," three of their 41 recommendations concerned the creation of a Privacy and Civil Liberties Oversight Board (PCLOB). The FBI Director assured the ACLU that civil liberties would be upheld. The PCLOB was statutorily forced on Bush by Congress, but he assured its powerlessness and later dismantled it. Obama has thus far totally ignored the issue by not appointing anyone to the PCLOB.
Revise the method of collecting and proving "statistical accomplishments" to favor quality over quantity. At a minimum, ensure that "statistical achievements" are subtracted when actions are found to have unjustifiably targeted advocacy groups or interfered with a person's constitutional rights without proper cause.
Fix the situation by immediately appointing five PCLOB commissioners and empower them to interact with and provide mandated training to all national security agencies, contractors and consultants. In addition, allow PCLOB to directly hear and evaluate whistleblower complaints relating to abuses, and to access reports from Civil Liberties/Privacy Officers in each agency, as is done by the Office of Government Ethics.
6) Intelligence failures as well as abuses are the predictable outcome of massive and irrelevant data collections, which only add hay to the haystack and make it even harder to spot patterns. Abuses and failures result from excessive over-classification (see "WikiLeaks and 9-11: What If?") and improper use of the "State Secrets" privilege, which keeps cases out of the courts and negates government whistleblower protection. The English historian Lord Acton, who observed that power corrupts, also noted that, "Everything secret degenerates, even the administration of justice; nothing is safe that does not show how it can bear discussion and publicity."
This great cartoon drawn by Ben Sargent says it all but only begins to capture the irony of our current situation. While governmental targeting of domestic advocacy, peace and environmental groups are jaw-dropping revelations, the even worse news is that these same agencies have failed to stop real terrorist violence and attempted violence. No government agency connected the dots before Fort Hood shooter Nidal Malik Hasan killed 13 and wounded 30, flight passenger Umar Farouk Abdulmutallab tried to ignite his "underwear bomb" in the air over Detroit or Faisal Shahzad planted his car bomb in Times Square. Yet all of these terrorist events involved individuals in direct communication with the very same Yemeni cleric who was also connected to three of the 9-11 hijackers.
The news gets even worse. We now know that the CIA ignored prior warnings regarding a suicide bomber they were hoping to use as a double agent who attacked a CIA outpost in eastern Afghanistan, and that the scout who planned the terrorist attacks in Mumbai in 2008 was a former DEA informant who U.S. officials had sent to train in Pakistan. Yet the FBI had been warned years before that the DEA informant worked for Al Qaeda.
Why would joint terrorism task forces go after American students and peace and labor activists while failing to detect and stop genuine acts of terrorism? This combination of misplaced zeal, incompetence and opportunism has consequences for our freedom and our safety. It is time for Top Secret America to ask itself whether its own flawed and contradictory assumptions and strategies are furnishing "material aid to terrorism."
JOIN THE NATIONAL DAY OF ACTION TUESDAY, JANUARY 25, 2011
In December 2010, under the direction of U.S. Attorney Patrick Fitzgerald, the FBI delivered 9 new subpoenas in Chicago to anti-war and Palestine solidarity activists -- bringing the total number of subpoenaed activists to 23. These nine activists are being ordered to appear before the Grand Jury in Chicago on January 25. In response hundreds of organizations and thousands of people in over 30 cities will be protesting at Federal Buildings (including Minneapolis), FBI offices, and other appropriate places on this date. Everyone who is concerned about the erosion of their security or civil liberties is invited.
(Editing assistance from Hugh Iglarsh, writer/editor/citizen based in Chicago. A shorter version of this piece originally appeared as an op-ed in the Minneapolis Star Tribune on January 16 "Coleen Rowley: We're conflating proper dissent and terrorism".)