Former FBI and CIA officials share BORDC’s concerns

America deserves better than McCarthy-style witch hunts
March 12, 2011
Expectation of privacy and free speech breached in Wisconsin
March 28, 2011

Last Friday, March 18, the Brennan Center for Justice at New York University hosted a Symposium on Domestic Intelligence.  The symposium was fascinating, and featured three panels (on the last of which I spoke—video below) in addition to a series of addresses by Rep. Bennie Thompson (D-MS), Ranking Member of the House Homeland Security Committee, and John Brennan, Assistant to the President and Deputy National Security Advisor for Homeland Security and Counterterrorism. Rep. Thompson shared his experience as a civil rights leader, which included extensive political spying by law enforcement authorities—whose voluminous files he later saw upon entering Congress.  He also expressed concerns about recent hearings in his congressional committee under the leadership of Rep. Peter King (R-NY), and then noting the fundamental importance of First Amendment rights and privacy.  Mr. Brennan agreed with Rep. Thompson’s concerns about Rep. King’s hearings, arguing that singling out people on the basis of their beliefs is un-American. Brennan also reiterated the need to stay true to our ideals when addressing national security, and reaffirmed the Obama administration’s commitment to closing Guantánamo Bay before declaring that domestic terror suspects will face trial in Article III courts rather than military commissions. We also heard from Fritz Schwarz Jr., former Chief Counsel to the Church Committee, who spoke of various underlying issues that have enabled recurring executive abuses. In addition to vague statutory language, a failure to consider the “collateral consequences” of domestic intelligence, along with a proliferation of targets and inadequate safeguards all pave the road to excesses of executive power. The first panel featured my colleague Mike German from the ACLU’s DC legislative office (who served for 17 years in the FBI while specializing in undercover counter-terrorism operations), as well as Los Angeles County Sherriff Leroy Baca, Professor Matthew Waxman from Columbia Law School, Kara Dansky from the Department of Homeland Security’s Office of Civil Rights and Civil Liberties, and moderator Faiza Patel from the Brennan Center.  Faiza’s recent report, Rethinking Radicalization, set the stage for the discussion, which Professor Waxman kicked off by noting the challenges impeding effective oversight of domestic intelligence activities coordinated not only by the FBI and DNI, but also are 50 state counter-terrorism agencies, as well as over 100 Joint Terrorism Task Forces and 72 fusion centers. Sherriff Baca explained the value of “public trust policing” while noting his office’s policy requiring reports of suspicious activities to demonstrate a criminal nexxus. Mike reminded us that these questions have sparked controversy before, such as during the Church Committee’s investigation that in the 1970s ended the FBI’s notoriously illegal COINTELPRO operations. He also reported that the ACLU’s Spy Files project has documented cases of political surveillance by police agencies in over 30 states, including an especially egregious case in Pennsylvania in which state police conspired with a private corporation to abuse the rights of law-abiding citizen activists raising awareness about environmental abuses.  Finally, Kara announced welcome news about a new DHS policy requiring fusion centers to institute (long overdue) privacy policies by the end of March. The Brennan Center’s Liza Goitein moderated the second panel, which she opened by noting the FBI’s refusal to respect constitutional requirements for individualized suspicion of criminal activity as a predicate to launching even the most intrusive investigations. Professor Geoff Stone from the University of Chicago law school explained why the First and Fourth Amendments have not historically prevented police from infiltrating faith institutions, before Nura Maznavi from Muslim Advocates shared several specific stories of abuses endured by Muslim-Americans, such as included in Unreasonable Intrusions, a report I authored three years ago before leaving that organization to lead BORDC. Kate Martin from the Center for National Security Studies offered a historical perspective and re-framed these abuses as constituting religious profiling, and former U.S. Attorney Chuck Rosenberg concluded the panel by suggesting that revisions to the FBI Guidelines in 2008 aimed to resolve conflicting authorities, were vetted on the Hill and by advocates, and remained amendable to oversight from the press and Congress. I explained to Mr. Rosenberg during the Q&A that the Guidelines were hardly public: I sued the FBI three years ago to gain access to the implementing regulations, many of which remain redacted and secret to the public even today. In addition, neither members of Congress nor advocates have ever been allowed a meaningful chance to offer input on the Guidelines, which I documented in writing after a series of closed-door briefings shortly before their implementation, which eventually prompted massive ongoing abuses. I spoke on the third and final panel, alongside the Brennan Center’s Emily Berman, whose recent report, Domestic Intelligence: New Powers, New Risks, documents the various problems pervading the 2008 FBI Guidelines defended by Mr. Rosenberg.  University of Chicago law professor (and BORDC advisory board member) Aziz Huq explained how the Supreme Court’s jurisprudence has left profound gaps in the Fourth Amendment by presuming that privacy interests inhere in the physical space surrounding an individual, rather than the relational networks and third parties (like Facebook friends, or internet service providers) on whom we increasingly rely to hold and access our data. Former FBI Deputy Director for National Security Phil Mudd also spoke on the panel, and defended the FBI’s sting operations while also expressing many of the concerns shared by other panelists about dragnet electronic surveillance unbounded by individualized suspicion. Former CIA Assistant General Counsel Suzanne Spaulding shared her perspective that Congress and the public need to re-assess risks to national security and aim to manage (rather than eliminate) them, in order to avoid the institutional failures driven by a futile attempt to secure a risk-free environment. My remarks focused on the salience of behavior (rather than race, faith, or beliefs) as the most reliable indicator of suspicion, and also on the national security risks that accompany civil rights abuses.  I also tried to expand the discussion beyond Muslim-Americans to also include peace activists (over a dozen of whom remain under investigation by the FBI) and Latino immigrants (who are suffering a humanitarian crisis at the hands of information-sharing programs between federal and local officials). I also shared a number of recommendations for solutions, emphasizing the opportunity for local reforms to raise rights above the federal floor, as modeled in the Local Civil Rights Restoration Act.