The week before last, The Washington Post concluded a two-year investigation of our government's domestic spying activities, revealing a lack of accountability pervading its far-flung and vast operations. Last Wednesday, FBI Director Robert S. Mueller testified before the Senate Judiciary Committee, confirming that the FBI is violating the constitutional rights of Americans en masse -- as it has done before.
Adding insult to injury, the Bureau now preposterously demands even further powers beyond those dramatically extended by the PATRIOT Act. At a minimum, Congress should emphatically reject demands for FBI access to "electronic communication transactional records," such as email meta-data and browsing history. However, Congress must also go further, by -- as a coalition of nearly 50 peace, environmental, civil rights, and civil liberties groups this week requested -- shining light on the Bureau's violations of constitutional rights, and considering long overdue legislative limits to constrain the FBI.
President Eisenhower warned 50 years ago that national security could undermine democracy by subverting popular policy preferences. His warning was prescient. In the 1960s, the FBI pursued a concerted campaign to undermine the civil rights movement by criminalizing groups, like the NAACP, pursuing peaceful political activities protected by the First Amendment.
This is no conspiracy theory: Congress documented wanton FBI abuses in over 14,000 pages of testimony. According to the Church committee, the FBI's activities then
would be intolerable in a democratic society even if all of the targets had been involved in violent activity, but COINTELPRO went far beyond that...the Bureau conducted a sophisticated vigilante operation aimed squarely at preventing the exercise of First Amendment rights....
Revelations of the FBI's "COINTELPRO" (counter-intelligence program) prompted a national outrage that forced the Department of Justice to enact limits in 1976 curtailing the Bureau's various abuses. Today, these problems are back.
The Attorney General's Guidelines that once constrained the FBI have faced repeated erosion, culminating in revisions in 2008 -- adopted despite congressional objections in the last full month of the Bush administration -- that essentially invite racial and political profiling.
The 2008 Mukasey Guidelines hold that race may serve as a factor justifying scrutiny, and even grants individual agents discretion to use intrusive investigatory methods without any evidence suggesting that a crime has been committed. This week, Mueller mistakenly claimed before the Senate that FBI agents must at least have a suspicion of wrongdoing before beginning surveillance -- but later conceded that, in fact, FBI surveillance is not limited even by suspicion.
This bears repetition: the FBI currently conducts monitoring and surveillance operations based on neither evidence nor suspicion. Think about that for a moment.
The Fourth Amendment prohibits "unreasonable searches and seizures" and specifically requires judicially authorized warrants based on "probable cause" that "particularly describe the place to be searched." For centuries, courts have interpreted the Fourth Amendment to require individualized suspicion for searches. Mueller's testimony confirms that no requirement for suspicion at all (not even suspicion impermissibly based on association or race) currently constrains agents from monitoring law-abiding Americans.
The Bureau has engaged in political spying for nearly a decade, infiltrating peaceful activist groups and suppressing dissent in the name of disingenuous national security. Nor has the Bureau carefully limited its targets: "[f]aith institutions, activist groups advocating for causes as varied as pro-life and pro-choice stances on reproductive rights, environmental causes...and animal rights have all been affected."
Worse yet, the Bureau's standard for undercover activities is known neither by the public nor Congress. I wrote a FOIA request that led to the FBI's disclosure of part of its policy, but the section on undercover infiltration remains secret. Intelligence agencies may justifiably pursue clandestine activities, but should not operate according to secret rules--at least not in countries that claim to lead the free world.
What little transparency we have confirms fears of abuse. In at least three separate reports (in 2007, 2008 and 2010) over the last four years, the Justice Department's Inspector General has documented rampant abuse of powers that the FBI received through the PATRIOT Act--as well as further abuse of entirely new powers invented by the FBI with the support of the Obama administration.
The Bureau has received a free pass long enough. As a civil rights coalition argued to the Senate this week, "Congress should not grant the FBI guidelines artificial legitimacy, nor should the Bureau be afforded credibility that it has not only failed to earn, but actively undermined....As a repeat offender, the Bureau is long overdue for intervention by Congress." New powers demanded by the FBI should be denied, and as recently demanded by the Chair of the House Judiciary Committee, the Bureau's leadership should be replaced.
An abridged version of this article was also posted by Truthout.
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