Reversing the Erosion of Civil Liberties
Editor’s Note: The U.S. public’s fear after the 9/11 attacks enabled the Bush administration to dismantle many of the civil-liberties safeguards that had been developed in reaction to disclosures in the 1970s of government assaults on dissent and freedom of speech.
As many Americans embraced the illusion of “perfect security” – even at the cost of their freedoms – government agencies stepped in with ambitious “counterterrorism” programs that soon were targeting innocent citizens, a problem that former FBI officer Coleen Rowley says must now be addressed:
Who has not yet awoken to the fact that we have been sailing since the 9/11 attacks into a perfect storm? Here are just some of the turbulent winds blowing and pushing officials in the wrong direction:
--Politicians who constantly stoke the fear of terrorism while forcing underling officials to promise they can protect the public by “pre-empting” all threats (hyped and un-hyped);
--The erosion of the prior legal safeguards, including even the firmly engrained ethical and legal principles of jus cogens, i.e. internationally accepted legal standards like repudiation of torture and aggressive war;
--A “green light on” mentality prompted by the broad legal authority given to the executive by Congress enacting such laws as the Patriot Act and Military Commissions Act, but also warrantless monitoring and offshore, indefinite detentions, authorities arrogated by the White House under theories of unlimited presidential war powers;
--Perverse, counterproductive job and profit incentives for the 854,000 agents, analysts, operatives, and private contractors/consultants who have been set to work in the new “Top Secret America” surveillance-security complex;
--Lack of any effective, independent oversight (despite the 9/11 Commission’s prescient and serious concerns enumerated years ago, and the creation of a Privacy and Civil Liberties Oversight Board in 2004);
--The political need for war presidencies to maintain momentum in the face of popular disapproval of the United States’ nearly decade-long, ongoing wars and occupations in the Mideast.
Such systemic forces will always produce a bad result.
Even the rather conservative Washington Post is quite worried about what’s likely to result in this clearly out-of-control pressure cooker they called “Top Secret America.” If it cannot be quickly reined in, we are almost certain to suffer replays of the worst of examples of Cold War McCarthyism and Vietnam COINTELPRO abuses.
That prediction is based on what has happened before when the militaristic forces of war got turned inward on U.S. citizens. Even if government officials are otherwise well intentioned, these forces will increase the chances for error and opportunism.
Some would say we’ve entered this perfect storm already given the numerous examples of improper targeting of various domestic advocacy groups coming to light, most recently the FBI searches and seizures of various anti-war activists’ offices and homes in Minneapolis and Chicago.
Let’s not forget how the “war on terror” was originally sold to the American public as “we fight them over there so we don’t have to fight them here.” But now the “war on terror” is increasingly being turned inward on “homegrown” American citizens.
FBI agents are motivated, for instance, to try to check off “statistical achievements” by sending well-paid, manipulative confidential informants into mosques and apparently also into various advocacy and anti-war groups.
Even in the Iowa heartland, FBI surveillances, trash searches, terrorism database paperwork and statistical accomplishments for disseminating information back and forth about a few student protesters in Iowa City before the 2008 Republican National Convention filled hundreds of file pages without ever providing or demonstrating the slightest justification or suspicion.
Relatively simple ways to address and reduce each of these counter-productive forces, which followed the 9/11 attacks, do exist, however. If these remedies are applied, we shouldn’t have to endure the worst civil-liberties abuses that have historically fallen upon common citizens merely attempting to avail themselves of their constitutional right to dissent.
These remedies also would not sacrifice our collective security but actually could and would greatly enhance it. The list below outlines the most serious current civil-liberties problems and the potential fixes.
It is based on my years of teaching constitutional “criminal procedure” to FBI agents and police officers from 1990 to 2003, and also based on my first-hand exposure and understanding of some of the pre- and post-9/11 failures:
--In the course of arguing the Holder v Humanitarian Law Project case in the Supreme Court, Georgetown Law Professor David Cole warned that the federal law against providing “material support” to U.S.-designated terrorist groups could be used to improperly target and prosecute a whole range of humanitarian, human rights and peace advocacy groups based on protected exercise of speech and other First Amendment rights.
However Cole failed in his arguments to overturn a few words in the Patriot Act that broadened this "material support” concept to encompass "expert advice and assistance" to "foreign terrorist organizations” as designated by the Secretary of State. (For more explanation, see: How Easy Is It for Peaceful People to Violate the Patriot Act?)
Last June’s Supreme Court decision, which essentially makes advocacy of peace and humanitarian issues illegal with respect to the 40 or so designated groups, was likely not something Congress intended when it hastily passed hundreds of pages of “Patriot Act” revisions.
All kinds of missionaries, fair-election proponents and humanitarian workers could be placed in jeopardy.
People like Three Cups of Tea author Greg Mortenson could be in trouble since he has had to meet with a variety of foreign country nationals in war zones to successfully formulate consensus to build schools for girls in Pakistan and Afghanistan.
So could former President Jimmy Carter who engages in pro-democracy efforts to monitor election fraud in many places in the world.
The paradox is that true non-government affiliated efforts aimed at furthering education, humanitarian assistance, free elections and non-violent conflict resolution in other parts of the world are widely recognized as more effective and beneficial than efforts controlled by the U.S. military and the U.S. State Department.
The simple fix would be a legislative revision of the few words regarding “expert advice and assistance” in the Patriot Act to clarify that Congress didn’t intend to chill or hamper the free-speech rights of people involved in such non-governmental humanitarian, peace and pro-democracy groups by stretching the meaning of “material aid or resources” given to foreign terrorist organizations.
--The U.S. government’s decision to go into “pre-emptive mode” against terrorism — with the determination to prevent all future terrorist acts — should be understood as a real “Mission Impossible” (and mission stupid).
The quixotic and unreachable goal of perfect security led to the immediate erosion of the Attorney General (AG) Guidelines that required varying levels of factual justification before targeting a domestic group. Those safeguards were established in the 1970s after the Church Committee exposed a wide range of abuses by law-enforcement and intelligence agencies.
Shortly after 9/11, Attorney General John Ashcroft began by loosening the old guidelines to allow FBI agents to go into churches, mosques and other public places.
The final nail in the coffin, laying to rest all of the old AG Guidelines, came when the Bush administration in one of its last official acts reduced the need to demonstrate some level of factual justification – for all criminal, white-collar, violent crime and terrorism type cases – to a new, very low standard.
In effect, that means the FBI has only to deny that they are targeting a group based solely on its exercise of First Amendment rights. Civil libertarians were aghast at the prospect of this total erasure of any real investigative guidelines but thought it better, knowing of Barack Obama’s background as a constitutional lawyer, to bring it up with Bush’s successor.
It should be noted that the demise of the old AG Guidelines came after Inspector General (IG) findings about the FBI serving hundreds of thousands of mistake-ridden and unjustified National Security Letters as well as finding a high percentage of compliance problems in the FBI’s opening and handling of informants.
There’s a simple fix to this problem. It’s fine to consolidate the standards into one set of guidelines to apply to all crime programs but some minimal level of suspicion in the form of factual justification should be required before the FBI or any other federal law enforcement agency can open an investigation, targeting a group or an individual.
To gauge the seriousness of the problem, the Justice Department’s IG should immediately undertake a review of all “terrorism enterprise investigations” begun by the FBI after 2006, which was the end point of the IG’s prior investigation that found problems.
--The blurring of protest activities and dissent with terrorism dovetailed with the launching of U.S. wars after 9/11. For example in October 2003, the FBI put out "Intelligence Bulletin 89" focusing on plans for the upcoming protest of the Free Trade Area of the Americas meetings in Miami and anti-war marches in Washington, D.C.
I personally made a complaint to the Justice Department’s IG about this blurring, but it was sent back to the FBI and then swept under the rug. Other complaints were treated with similar disinterest or disdain.
When New York Times reporter Eric Lichtblau exposed the bulletin, the Justice Department retaliated by yanking Lichtblau's press pass (and the FBI ordered its 56 field divisions to cease contact with the Times reporter. The sorry episode is described beginning on page 122 of Lichtblau’s book, Bush’s Law: The Remaking of American Justice.)
Perhaps if the government hadn’t adopted that overly-defensive posture, the problem would not have reached the proportion later found in the September 2010 Report: “A Review of the FBI’s Investigations of Certain Domestic Advocacy Groups.”
The wrongheaded mindset that dominated law enforcement almost immediately after the launching of the Iraq War (and larger "war on terror") is most clearly seen in what a spokesman for the California Anti-Terrorism Information Center (CATIC) said when forced in 2003 to defend his agency's unjustified targeting of anti-war protesters without any factual evidence.
CATIC Spokesman Van Winkle, apparently without thinking too hard, reasoned that evidence wasn't needed to issue warnings on war protesters.
"You can make an easy kind of a link that, if you have a protest group protesting a war where the cause that's being fought against is international terrorism, you might have terrorism at that (protest)," said Van Winkle, "You can almost argue that a protest against (the ‘war on terror’) is a terrorist act."
In a similar vein, the Department of Defense (DOD) was caught after years of administering its annual mandatory anti-terrorism test that equated protest with terrorism. The correct answer on the DOD test for “What is an example of low level terrorism activity?” was “protest.”
Also noteworthy is the fact that Joint Terrorism Task Forces (JTTF) and Fusion Centers combine the local and state police jurisdiction with federal jurisdiction. So crowd control – something properly handled by state and local police but not usually within federal jurisdiction – becomes something the JTTF can “jointly” do.
It’s even possible that CIA membership on these joint task forces and fusion centers gives the spy agency a role although the CIA is supposedly barred from operating domestically.
The fix here would be to stop equating protest, including acts of civil disobedience, with terrorism.
The Patriot Act’s definition of domestic terrorism begins with these words, “Acts dangerous to human life,” meaning that exercise of rights to protest and dissent, even acts of civil disobedience involving minor crimes like trespass and/or entailing some property damage, do not constitute acts of terrorism.
Issues of crowd control, even during large marches and rallies, do not normally implicate national security and are not normally matters that federal authorities should be involved with.
--A front-end loading system of "statistical achievements" is the main way of evaluating job performance inside the FBI and probably in the other 3,000 some agencies and contractors believed to now be operating in “Top Secret America.”
The 854,000 operatives, agents, and analysts as well as private contractors and consultants (believed to average about $90,000 per year salary) are under more than a little pressure and in competition with each other to prove they are doing something to collect their paychecks and move up the ranks.
So an elaborate grading system that only checks the initial projection of work in a quantitative, not qualitative, way is what’s used.
An FBI agent, for instance, collects “stats” for opening files, disseminating information, adding individuals to a terrorist database or a watch list, serving subpoenas and national security letters for records, recruitment of and contact with secret sources and informants, as well as for executing searches/seizures, making arrests and getting people charged and/or convicted.
Given the change of emphasis from prosecution to intelligence data collection/analysis, more and more of the “stats” do not involve any judicial oversight. The danger exists that the pressure of needing these “stats” would make FBI agents – as well as personnel of the other 3,000 entities – over-reach to open investigations and confidential sources and to try to fit garden-variety crimes into the terrorism category.
The pressure to “pre-empt” all possible acts of terrorism, plus lax oversight in the handling of “top echelon informants,” has led to repeated examples of opportunistic targeting and entrapment of people not pre-disposed to commit a terrorist act.
If people are not pre-disposed, then the government is really paying informants to create “crimes” that accomplish little beyond adding to the stats.
Cases that don’t pan out and/or which were never even justified, like the “terrorism enterprise investigation” of the “Wild Rose Rebellion” students in Iowa City, can boost a government official’s standing on an annual performance review but don’t enhance national security.
Ultimately, if no quality over quantity mechanism is found to evaluate work performance, a return is likely to the Cold War-type tracking, the "post and float" system of “papering files.” McCarthyism and Vietnam COINTELPRO type abuses are bound to reoccur only with the new label “terrorist” substituted for old bogeyman “communist.”
The remedy would be to revise the method of rewarding “statistical accomplishments” to ensure quality over quantity. At a minimum, ensure that “statistical achievements” are subtracted when actions are found to have unjustifiably targeted advocacy groups or interfered with a person’s constitutional rights without proper cause.
--Because the 9/11 Commission was very concerned about the much greater authority being given to the FBI and other agencies in the “war on terror,” three of their recommendations concerned the creation of a "Privacy and Civil Liberties Oversight Board."
The PCLOB was forced on Bush through legislation passed at the end of 2004, but he quickly pulled the rug from under it so it had no power and later dismantled it. Obama has thus far ignored the issue by not appointing anyone to the PCLOB.
Fix the situation by immediately appointing five PCLOB commissioners and empower them to interact with and provide mandated training to all national security agencies, contractors and consultants.
The PCLOB should obtain reporting of problems through Civil Liberties-Privacy Officers in each agency like the system used by the Office of Government Ethics. Allow PCLOB to directly hear and evaluate whistleblower complaints relating to information about abuses.
--Not only abuses but also intelligence failures are enabled through massive (irrelevant) data collections that only add hay to the haystack and thus make it even harder to find the useful needles.
Abuses and failures are enabled through excessive over-classification — see “WikiLeaks and 9-11: What If?”, through the use of “State Secrets” privilege to keep cases out of the courts and through lack of government whistleblower protection.
The English historian Lord Acton, who figured out that power corrupts, also realized that, “Everything secret degenerates, even the administration of justice; nothing is safe that does not show how it can bear discussion and publicity.”
Coleen Rowley, a FBI special agent for almost 24 years, was legal counsel to the FBI Field Office in Minneapolis from 1990 to 2003. She wrote a "whistleblower" memo in May 2002 and testified to the Senate Judiciary on some of the FBI's pre 9-11 failures. She retired at the end of 2004, and now writes and speaks on ethical decision-making and balancing civil liberties with the need for effective investigation.
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