Sometime yesterday afternoon James Comey, under the impression that he was still director of the FBI, was giving a speech when he glanced at a TV and saw a report that he had been fired. Comey proceeded to compliment his audience on having pulled off such an amusing prank. While it is best to avoid speculation, it is likely that Comey’s amusement dissipated when several FBI employees stopped him mid-speech and he learned that there was in fact no prank.
Comey’s firing is troubling. Trump’s firing of the man overseeing an investigation concerning himself and his associates oozes Nixonian vibes. Trump will now get to pick Comey’s replacement. Given Trump’s disregard for civil liberties, we can only brace ourselves for the worse. And if Trump’s pick is particularly deferential, Trump could potentially consolidate control over the FBI and have the agency’s spying apparatus at his disposal to pursue his own political–and even petty personal–grievances.
In spite of the objectively terrifying nature of these facts, Comey should not be lionized. Under Comey’s command the FBI engaged in a whole of host of outrages against the Bill of Rights, primarily directed at dissidents and minority communities. not suspected of any wrongdoing.
These abuses are not unique to Comey and have been the norm throughout the FBI’s history. The FBI’s disregard for civil liberties is bigger than any individual personality, but as director, Comey should have been held to account for them.
In light of the termination of Comey’s tenure as FBI director, we offer a list of five of the more shocking moments from a civil libertarian perspective. Under any meaningful system of oversight that respected civil liberties, any one of these would have led to Comey being called to account and serious efforts to reform and overhaul the FBI to be initiated. This does not justify Trump’s dismissal of Comey nor does it nullify our concerns about it. Trump’s actions were almost certainly self-serving and corrosive to a system in which no single person is above the law. Yet, having struggled to reform the FBI for decades, we feel that any discussion about the FBI must acknowledge the very real and urgent need to reform the agency.
1. Targeting of the Muslim community with infiltrators and provocateurs
Much to the horror of many across party lines, Trump called for the surveillance of mosques during his campaign. Yet, the FBI routinely deploys undercover agents and paid confidential informants into the Muslim community, including into mosques. These informants not only gather data about American Muslims, but they propose phony, non existent terrorist schemes and attempt to entice people to participate. Individuals are then arrested for agreeing to participate in plots imagined by the FBI and its informants that never actually existed.
Sometimes these people are already on the FBI’s radar, but in many cases they come into contact with the FBI by complete chance. The latter type of instance raises the question of why. If there is no suspicion of a crime, why are informants and infiltrators combing through American mosques collecting information and manufacturing crimes. The only conclusion is that the FBI views American Muslims as inherently suspicious.
This state-sponsored Islamophobia helps to foment more Islamophobia. In his second Muslim Ban executive order, Trump cited as justification two of these FBI-manufactured terror plots.
This did not start with Comey, but it continued to occur with alarming regularity under his tenure. He therefore bears some responsibility.
2. Touting the non-existent Ferguson Effect
Comey lent credence to the bogus “Ferguson effect.” According to this discredited thesis, individuals who used their First Amendment rights to protest a pattern of abuses they have been subjected to by law enforcement or call for law enforcement to follow the Constitution are responsible for an uptick in crime because police are afraid to enforce the law. Comey’s willingness to validate this theory without any evidence was clearly political, and served to demonize the Movement for Black Lives.
3. Overseeing Continued Spying on Political Activists
The FBI habit of spying on political activists is as old as J. Edgar Hoover. Much like the targeting of the Muslim community we can’t lay the blame for initiating this policy on Comey, but we can hold him responsible for continuing it..
We know for a fact during Comey’s directorship that agents with the FBI Joint Terrorism Task Force paid visits to activists at their homes. These include Black Lives Matter protesters, who were advised not to protest at the Republican National Convention and most recently, Standing Rock Water Protectors. Additionally, during Comey’s tenure at least a dozen anti-Keystone Xl Pipeline activists received visits from FBI agents. Agents told the activists they were not suspected of crime, but that the agents wanted to learn more about their movement. A Houston based FBI investigation into anti-Keystone Xl Pipeline investigators was found to have violated the FBI’s own internal policies for safeguarding the First Amendment, an amazing feat given how loose they are.
In the run up to the election, FBI agents also paid visits to a number of Muslims-Americans of Afghani and Pakistani national origin in eight states days asking vague questions about an election-day related terror plot. Many viewed this move as an act of voter intimidation against Muslim-Americans.
4. Trying to get a backdoor into your private communications.
Comey has consistently fought to get a backdoor for the FBI into all of our private devices. He claimed that, because of encryption the FBI was in danger of “going dark,” unable to get information it needed due to encryption. Comey frequently claimed this was making it difficult to combat terrorist like ISIS.
Here’s the problem, when Defending Rights and Dissent provided public comment to the Information Security and Privacy Board (ISPB) about encryption the FBI also testified during the same session. The FBI, when talking to a board that included technology experts, freely admitted that the encryption genie was out of the bottle, and even if they got a backdoor into commercial US manufactured goods, there would always be foreign-produced encryption devices. FBI representatives stated that groups like ISIS would probably not use these devices, but there were domestic criminals, such as drug dealers, who would use them.
Given points 1 and 3, there is good reason why individuals would want to use encryption. Comey’s misleading politicization of encryption in order to accumulate power for the FBI at the expense of everyone’s civil liberties was unacceptable.
5. Pretending with a straight face the FBI is not political.
Alright, this isn’t actually a fireable offense and would be unreasonable to expect any FBI director not to defend the FBI. However, given the FBI’s long history of spying on First Amendment activities and Comey’s blatant politicization of a reported crime uptick or encryption, it was hard to listen to him pretend that the FBI wasn’t already politicized.
Trump’s firing of Comey raises serious questions. They cannot and should not be ignored. No one is above the law and for the President to fire someone tasked with investigating his administration should send chills down everyone’s spine.
Those questions can be pursued while also using this moment to enact pivotal reforms of the FBI. Trump will nominate a new director. The Senate Judiciary Committee must ask this individual probing questions about the FBI’s spying on the First Amendment. Any individual who does not pledge to safeguard civil liberties must not be confirmed.
And if people are concerned with Trump using the FBI, Congress can make statutory reforms that place checks on this. This should have been done long ago, but with widespread panic about Trump, hopefully Congress will finally act.
We are, to be honest, deeply frightened about what comes next. If Trump creates a situation where no one can hold him accountable, we are in a deep crisis. We are also disturbed about who Trump will nominate and Trump consolidating his grip on the FBI to escalate its worst tendencies.
Now is not the time to despair. Members of Congress and the general public are waking up to the very real problems posed by the growth of an unaccountable intelligence/law enforcement agency. We need to use this moment to not only to check Trump, but to finally create real mechanisms for oversight and accountability of the FBI.
The FBI is Not Your Friend, Jacobin