By Kent Willis, Executive Director, ACLU of Virginia
Take a close look at the new FBI guidelines on domestic spying and what you will see are the old FBI guidelines. By "old" I do not mean the ones from the last year, or the last decade, but those that governed the federal agency during the 1950s and 1960s.
Back then J. Edgar Hoover pretty much had his way, wiretapping the likes of Martin Luther King, infiltrating any group where the political discussion ran to the left of center, and engaging in dirty tricks and smear campaigns to discredit the civil rights anti-war movements.
Virtually uncontrolled and unregulated, FBI agents initiated investigations based on nothing more than whim or prejudice. They then kept those investigations going for as long as a decade, even when there was no indication that the person or organization targeted by the investigation might be intending to violate the law.
Without trying, King drove the FBI crazy. After thousands of hours of surveillance and infiltration during most of the sixties, the FBI turned up nothing more than a handful of personal peccadilloes on the non-violence advocate. Not only did the investigations of King and hundreds of other political activists illegally invade their privacy and disrupt their lives, but ultimately the inquiries proved to be fruitless exercises at an enormous cost to taxpayers.
In the mid-1970s, after congressional hearings unveiled the widespread abuse of power and waste present within the FBI, then Attorney General Edward Levi promulgated guidelines to restore credibility to the agency and to make it operate more effectively.
It is those guidelines that Attorney General John Ashcroft has now revoked under the guise of creating new guidelines to help combat terrorism.
What exactly do the so-called "new" guidelines do? Largely, they remove the already lax rules that restrict spying on religious and political organizations. Just as Hoover had FBI agents secretly attend African-American church meetings to gather intelligence on civil rights activists, so now can Robert Mueller send agents to mosques around the nation to listen in on Muslims.
The new guidelines permit the FBI to purchase personal data from private companies. The books you read, movies you rent, or prescription drugs you take could now be fair game for the FBI. Internet monitoring, including listening in on chat rooms, is also allowed.
The new guidelines also give agents in the field longer time periods to pursue investigations, even when no incriminating information is uncovered. And agents can undertake those investigations with less review from their supervisors.
One of the main reasons for instituting the original guidelines in the 1970s was to prevent the FBI from carrying out ideologically motivated investigations. By requiring oversight of investigations and imposing time limits on the ones that were not yielding any evidence of criminal activity, FBI agents would not be able to engage in open-ended investigations of individuals solely because of their political views.
Perhaps the most disturbing aspect of the new guidelines is that we are again letting the FBI launch investigations without a scintilla of evidence that the individuals or organizations being spied on are doing anything wrong or planning to do anything wrong. Both history and present day police practices tell us that when law enforcement officials are given too much latitude, they pick racial and religious minorities as their targets.
We have already seen some indications of what the FBI is capable of doing in this regard. Earlier this year, Ashcroft put the FBI in charge of interrogating 5,000 young Middle Eastern men staying in the United States on student visas.
It was a massive undertaking that was widely criticized by civil libertarians and former FBI agents alike. Civil libertarians objected to targeting people for investigation based solely on their nationality and then asking highly personal questions about their religious practices, family connections, and politics. Several former FBI executives ridiculed the plan, claiming that such unfocused fishing expeditions may have popular appeal but never lead to valuable information.
In the end, the FBI carried out their assigned mission, invading the privacy of thousands of Middle Eastern students and their families, and getting nothing valuable in return. The new guidelines will allow the FBI to repeat this kind of fruitless and distasteful exercise over and over again.
The problem with the FBI is not that it needs extended powers of surveillance to fight terrorism. The revelations on FBI activities immediately prior to September 11 show that the agency was simply unable to analyze in a timely manner the data it had already collected on terrorist activities. There were also broken communication lines both within the agency and with other agencies that prevented data from being aggregated in meaningful ways.
Fixing the FBI to make it an effective counter-terrorism agency may require more personnel, better communications, and a new nimbleness to keep up with the fast paced times. Nothing in the new guidelines, however, addresses any of these needs.
A cynic might say that the new guidelines on domestic spying represent nothing more than the Attorney General taking advantage of the post September 11 climate to expand government powers. In doing so, he probably has not made us not one bit safer, but he certainly has made us a little less free.