This Tuesday, January 18, the Brennan Center for Justice at NYU Law School hosted a panel discussion in the Rayburn House Office Building in Washington, DC, to release the new report by Emily Berman, Domestic Intelligence: New Powers, New Risks. The panel featured Rep. Rush Holt (D-NJ), Ms. Berman from the Brennan Center, Daveed Gartenstein-Ross from the Foundation for the Defense of Democracies, and me from the Bill of Rights Defense Committee.
Our discussion focused on the FBI’s abuses authorized by the 2008 Attorney General’s Guidelines for FBI Operations issued by then AG Michael Mukasey, which I’ve written about here, here, here and here (and addressed in a different medium outside the FBI’s headquarters this Monday to celebrate the Martin Luther King holiday). Tuesday’s panel included reflections on whether the FBI’s well-documented abuses have effectively resuscitated the COINTELPRO era; how the constitutional requirement for individualized suspicion to justify any search is flagrantly violated by limitless infiltration or monitoring; and whether or not (as I describe at 1:10:13) material support prosecutions reflect “a profound unwillingness to apply the law equally to different parties who are similarly situated.” Berman’s report explains how “successive sets of guidelines, while expanding the breadth of their coverage, have loosened restrictions on FBI operations.” The most recent set of revisions, implemented in the waning days of the Bush administration, have largely driven the FBI’s activities under President Obama’s tenure and created vast threats to civil liberties. As I explained (at 35:58 in the video):
None of this—neither the critique of the FBI nor its defense—reflects a particularly either conservative or progressive political viewpoint. What we’re talking about here are ultimately divisions between…an American perspective, and a Soviet perspective. And the unfortunate reality is that the FBI has been operating for the last three years under a Soviet model.
According to the Brennan Center, the Mukasey Guidelines have also undermined national security, for two reasons. First, concerns about the FBI employing models of collective guilt have undermined the community trust necessary to gain the human intelligence on which most successful investigations rely. Second, “[t]he Bureau is unable to analyze effectively the information it has collected because there are such vast volumes of information unrelated to indications of wrongdoing or threat.” I was particularly struck by the consensus on the panel regarding the significance of context. Even Mr. Gartenstein-Ross agreed that context matters and that blanket suspicion of entire religious communities lacks any basis. The importance of context recalls the role of judges: as impartial arbiters, they are supposed to exercise a vital check on executive abuses—which they can do only when approached for a warrant, as required by the Fourth Amendment. Today, the Bureau claims a vast array of intrusive powers without the need for a judicial warrant, raising concerns about arbitrariness and politicization. Process also matters. During my introductory comments (at 35:12), I noted that “The FBI is not here despite being invited, and at one point planning to attend….Their inability to justify appearing in public to actually defend these policies against a thoughtful critique is, quite frankly, reflective of the indefensibility of those policies.” Mine was not the first criticism about the Bureau’s secrecy precluding adequate review, oversight, or input from Congress or the advocacy community. Senator Durbin wrote in October 2008 that “the Justice Department claims that they consulted with Congress [before promulgating the 2008 Guidelines], but they made only cosmetic and superficial changes and ignored all of the significant changes we suggested….” Valerie Caproni, the FBI’s general counsel, has publicly cited a series of briefings in 2008 to support a misleading claim that the FBI carefully considered input from Congress and civil rights advocates before implementing the Mukasey Guidelines. Yet as a participant in the briefings cited by Ms. Caproni, I wrote in their wake on behalf of a coalition of Muslim and Arab organizations to note that “the late stage at which we were briefed precludes any possibility of comments being meaningfully reflected” in the final policies, which were implemented “only two and six business days, respectively” after those briefings. Many communities have raised concerns about discrete abuses by the FBI: the infiltration of mosques, the raids of peace activists in the Midwest, and the criminalization of environmental activism focused on the animal rights. But while laws like the PATRIOT Act (three provisions of which will be up for reauthorization next month) and the Animal Enterprise Terrorism Act (which criminalized constitutionally protected speech even before 9/11) exacerbate the problems of executive aggrandizement and the derogation of constitutional rights, each of these abuses share a common element: the 2008 Mukasey Guidelines. BORDC has called for revisions to the AG Guidelines, and changes in personnel at the FBI to reign in COINTELPRO 2.0. Our forthcoming letter to the attorney general will be delivered at the end of January, and over 1,600 concerned Americans have already joined our chorus. Please add your voice and help us restore constitutional rights in the United States.