As we approach the tenth anniversary of 9/11, Brennan Center counsel Emily Berman and Seton Hall Law Professor Jonathan Hafetz discuss the President’s detention policy, the Bagram prison in Afghanistan, and the future of habeas corpus.
This is the third installment in a three-part series. You can read the first two conversations here and here.
We hear much less about detention operations in Afghanistan than we do about Guantanamo, but there are still thousandsof detainees in military custody in and around Bagram.
Moreover, rumors about a secret Bagram prison — one where detainees are held in isolation and that is off limits even to the Red Cross — persist.
What do we know about the state of American detention operations in Afghanistan, and what opportunities those detainees have to challenge the lawfulness of their detention?
--Emily Berman
Bagram has always played second fiddle to Guantanamo in terms of focusing public attention on human rights abuses by the U.S. Government — even though, for many years, conditions at Bagram were worse.
Congress's current proposal requiring the military detention of terrorism suspects goes beyond anything it has done so far, and represents an unprecedented militarization of the U.S. justice system.
Currently, there are many more prisoners at Bagram than Guantanamo, and some detainees at Bagram are held in secret — at least for limited periods of time. While conditions at Bagram, now known as Parwan, have improved, serious problems remain. Most importantly, detainees there are imprisoned without access to any court, whether U.S. or Afghan. Although the U.S. Supreme Court has recognized a constitutional right to habeas corpus review for detainees at Guantanamo, the Court has not extended that right to detainees at Bagram, and an appellate court has expressly rejected any such right. That Bagram is located in Afghanistan, where the U.S. remains involved in an armed conflict, admittedly complicates court review. But the alternative — holding prisoners at Bagram indefinitely based only on a military tribunal hearing — is worse.
The arguments for habeas review at Bagram will grow stronger if, as I suspect, the U.S. continues to hold at least some prisoners there even after troops withdraw and detention operations are turned over to the Afghan government. The continued detention of prisoners under these circumstances will make it more difficult to argue that Bagram is different from Guantanamo in any meaningful respect.
--Jonathan Hafetz
Another complaint, voiced by Republican lawmakers in the letter to President Obama raising questions about Warsame’s treatment, is that the administration’s actions “directly contradict pending legislation.” The pending legislation they refer to is the House version of the National Defense Authorization Act for FY 2012, which includes multiple restrictions on and requirements for the executive’s handling of suspected terrorists. Perhaps the most dramatic of these provisions requires that certain terror suspects be held in military detention and tried in military courts, rather than being held by U.S. law enforcement entities and tried in criminal courts.
For a moment let’s leave aside the fact that the current Senate version of this bill does not include that provision, as well as the fact that the content of this “pending legislation” is likely to change before it reaches the President’s desk for signature. But regardless of whether this particular military-detention requirement is actually enacted, Congress has already imposed similar conditions. For example, there are restrictions regarding where and under what conditions the President may transfer detainees from Guantanamo, as well as restrictions on using Defense Department dollars to convert facilities on the U.S. mainland into terrorist detention centers.
For many years, it seemed that Congress sat on the sidelines when it came to detention issues. What do you think about the ways in which it has decided to step in?
--Berman
Other than passing the broadly worded Authorization for Use of Military Force just days after 9/11, Congress did little on detention issues until 2005. Since then, Congress has intervened several times, mostly in counter-productive, even destructive ways.
In 2005, and again in 2006, Congress sought to strip the federal courts of jurisdiction to consider the habeas petitions of Guantanamo detainees — an effort the Supreme Court ultimately ruled unconstitutional.
Ten years after 9/11, we can see how much the policies underlying Guantanamo not only are becoming normalized, but also are expanding in new and radical directions.
More recently, Congress effectively killed Obama's plan to close Guantanamo, by prohibiting the use of funds to transfer Guantanamo detainees to the mainland United States, as well as restricting the president's ability to transfer Guantanamo detainees to another country.
The current proposal requiring the military detention of terrorism suspects goes beyond anything Congress has done so far, and represents an unprecedented militarization of the U.S. justice system. It's bad enough that the government need not prosecute terrorism suspects and provide individuals in U.S. Custody with a fair trial. This proposal would actually prevent the president from doing so in many cases.
Congress's actions underscore the degree to which the debate over counter-terrorism policy has been distorted by fear and hijacked by political grandstanding. Ten years after 9/11, we can see how much the policies underlying Guantanamo not only are becoming normalized, but also are expanding in new and radical directions.
--Hafetz
That point brings me to my last question, Jon. As we approach the tenth anniversary of 9/11, it seems that many of the rules surrounding habeas — where geographically does it extend, what categories of individuals may lawfully be detained, how definitively must the government prove a particular detainee’s connection to Al Qaeda or its affiliates — remain unanswered.
And this past term, the Supreme Court declined to exercise jurisdiction over any of the multiple detention-related cases that came before it. So the Court seems to have stepped out of the detention business, at least for the moment. At the same time, the situation in the world is getting more complicated. Afghanistan is less likely to serve as a terrorist base of operations, but other failed states like Somalia and Yemen seem to be vying to take its place. Al Qaeda proper seems to be in decline, but affiliated or copycat groups interested in attacking U.S. interests continue to pop up.
As this complexity evolves, and in the absence of clear rules set forth by the Supreme Court, where do you think the future of habeas corpus is headed, and who is going to be writing the rules?
--Berman
It does seem like we're entering a new chapter in the future of habeas corpus, with the tragic events of 9/11 now almost a decade behind us. While the legal battles in the "war on terror" have not always produced clear answers, and many important issues remain to be decided, I think several important lessons emerge.
Habeas, I believe, will remain relevant as we begin to focus on new questions, such as counter-terrorism operations in the Horn of Africa and Yemen. Despite its numerous shortcomings, habeas has proven one of the most important checks on executive power. It helped expose abuses at Guantanamo, enabled lawyers to visit the base and represent detainees, and provided some judicial oversight of what once had been a prison beyond the law.
At the same time, the "war on terror" litigation has underscored the vulnerabilities of habeas and the limits of courts generally. Too often, it seems, the executive was able to remain one step ahead of the “Great Writ,” evading accountability by transferring prisoners to new detention sites to which habeas did not extend or using other countries as proxies to mask U.S. control and influence. Judges, moreover, have too often interpreted the habeas right narrowly and deferred excessively to the government. We can see this in the D.C. Circuit's recent rulings in the Guantanamo habeas cases, which sometimes seem little more than an exercise in rubber stamping executive power.
As we approach the tenth anniversary of 9/11, Brennan Center counsel Emily Berman and Seton Hall Law Professor Jonathan Hafetz discuss the President’s detention policy, the Warsame case, and whether we can hold the government accountable for deprivations of liberty.
This is the second installment in a three-part series. You can read the first conversation here.
There was a fascinating story in The Nation last month, reporting about a facility in Mogadishu, Somalia, where the CIA seems to be operating a semi-autonomous detention program in conjunction with Somali intelligence. According to The Nation, “the underground prison is officially run” by the Somali’s national security agency, but “US intelligence personnel pay the salaries of [Somali] intelligence agents and also directly interrogate prisoners.”
Is there any way to hold the government accountable for these deprivations of liberty?
One question these last twostories raise for me — and I’ll want to come back to this — is whether the current administration has a coherent detention policy, or if it’s operating on an ad hoc basis, and whether that’s a good or a bad thing.
But first, I’d like to ask you whether the writ of habeas corpus provides any protection from unlawful detention for prisoners like Ahmed Abdulkadir Warsame or the ones in Mogadishu? And if not, is there any way to hold the government accountable for these deprivations of liberty?
--Emily Berman
The facility highlights the problem of proxy detention — where the U.S. outsources detention to foreign agents or colludes with those agents in order to minimize accountability.
The practice of proxy detention is not new. (In fact, along with the ACLU, I presently represent a U.S. citizen named Amir Meshal in a lawsuit against four U.S. officials who used foreign agents in Kenya, Somalia, and Ethiopia, to imprison him for four months in 2007 without access to his family or the courts).
The story about the facility in Mogadishu highlights both the importance and potential limits of habeas corpus. It underscores why habeas must be available to challenge all detentions by the United States, regardless of location, and why the habeas right must be viewed broadly to reach situations where the U.S. exercises custody or control over a prisoner indirectly, through a foreign agent.
Obama's approach elevates executive discretion over the rule of law.
A district judge in Washington, D.C. previously construed habeas corpus to reach this type of detention (The case, which involved a proxy detention in Saudi Arabia, is entitled Abu Ali v. Ashcroft). While Abu Ali was an American citizen, the habeas right to challenge illegal detention should extend both to citizens and foreign nationals. Indeed, the Supreme Court's 2008 Boumediene v. Bushdecision, which recognized Guantanamo detainees' constitutional right to habeas corpus, emphasizes that citizenship is only one of many factors involved in determining whether habeas should be available to a person held overseas.
One recurring problem is that it can be difficult in practice to establish the requisite level of U.S. control over detention for the purposes of establishing habeas corpus jurisdiction, while judges can be reluctant to order discovery into the degree of U.S. control when a prisoner is nominally in foreign custody. However, the danger of precluding such discovery outweighs any difficulties it poses, as it effectively permits the U.S. to interrogate and imprison individuals without accountability or review — precisely the kind of situation where the worst abuses tend to occur.
--Jonathan Hafetz
I want to briefly go back to the Warsame case — the Somali detainee held and interrogated for two months on a navy ship and then brought to the U.S. for prosecution. You’ve probably seen the letter that several congressional Republicans sent to President Obama protesting the way that Warsame was handled. The letter criticizes the President for failing to establish a “comprehensive detention system” outside of Afghanistan and calls on the President to define his administration’s policies on interrogation, detention, and prosecution of terrorists.
Do you think this administration has a coherent policy for dealing with suspected terrorists?
--Berman
President Obama's approach to detention does, to be sure, suffer from a lack of consistency. While Obama has expressed a general preference for prosecuting terrorism cases in federal court, he has maintained the option to treat terrorism suspects militarily — by subjecting them to indefinite detention under the laws of war or prosecuting them in military commissions. In Warsame's case, exercising that option meant two months' of military detention followed by a federal criminal indictment. For others, including those at Guantanamo, it has meant perpetual confinement without trial or prosecutions in a second-class military justice system.
Obama's approach, as I've previously discussed here, gives far too much power to the government to circumvent or dispense with the fundamental constitutional protections provided in the federal criminal justice system. Who receives a federal trial? Who, by contrast, is subjected to the military regime of law-of-war detention or commission prosecution? Obama's approach allows the government to exercise the military option when it lacks evidence, when the evidence is tainted (for example, because it was obtained through torture or other illicit means), or even when the case is too difficult politically to prosecute in federal court (as illustrated by the administration's decision to abandon the prosecution of KSM and the other 9/11 co-conspirators in the face of a virulent political backlash).
Obama's approach, in short, elevates executive discretion over the rule of law. It is, however, certainly preferable to the approach of those lawmakers who would mandate military detention, thus barring the prosecution of Warsame and countless other suspects.
Something remarkable happened in New Jersey last week. A politician stood up and, refusing to bow to the prevailing political winds that seem to demand the demonization of Muslims, told the truth. And for that he deserves a great deal of credit.
Last week New Jersey Governor Chris Christie defended his nomination of Muslim-American attorney Sohail Mohammed to sit as a judge on the New Jersey Superior Court.
The nomination, announced in January of this year, had sparked the now-predictable uproar about Shariah law, and the risks that Muslims pose to the American way of life.
In a refreshingly blunt display, Gov. Christie accurately identified the source of this criticism as “ignorance,” the fear that Shariah law poses some threat to the citizens of New Jersey as “crazy,” and the questions Mohammed was asked during his confirmation hearings as “disgusting.” In short, he said, “I’m tired of dealing with the crazies.” Christie then went on to tout Mohammed’s qualifications, to praise his critical role in building trust between federal law enforcement and Muslim leaders in the wake of 9/11, and to extol his competent and zealous representation of his clients as a member of the New Jersey bar—including clients who were, as Christie acknowledged, “improperly detained” by the FBI after 9/11. Christie then went on to state the obvious: He was proud to nominate Mohammed because “he’s a good lawyer and an outstanding human being,” and opposition to the nomination based on Mohammed’s religious background is “just unnecessary.”
Christie is not the only one tired of the crazies. All too often of late, political conversations regarding the role of American Muslims devolve into Islamophobic accusations and expressions of irrational fear of Islamic law. Even members of Congress whose own constituents include sizeable communities of patriotic, law-abiding American Muslims have embraced this poisonous rhetoric. More American leaders need to display the same courage and common sense as Gov. Christie, rejecting the tendency to cast suspicion on an entire community based on the actions of an infinitesimal number of its members.
The Obama Administration recently added another strong voice to this effort. In its recently released strategy to counter radicalization, President Obama recognized that
“[a]ctions and statements that cast suspicion toward entire communities, promote hatred and division, and send messages to certain Americans that they are somehow less American because of their faith or how they look, reinforce violent extremist propaganda and feed the sense of disenchantment and disenfranchisement that may spur violent extremist radicalization.
Perhaps this is a sign that government officials are coming to realize the harm that such actions and statements can cause. As Gov. Christie’s description of Judge Mohammed’s role in bringing together federal officials and the Muslim-American community illustrates, the cooperation of Muslim leaders can yield invaluable benefits to American counterterrorism efforts. But in order to reap these benefits, law enforcement must treat Muslims as partners, not as suspects.
Christie said that he was “happy that [Mohammed is still] willing to serve after all this baloney” because his time on the bench will benefit the citizens of New Jersey. We should all be happy for that. It takes courage to rise above the type of vilification and unwarranted criticism that American Muslims often endure. We can hope that statements such as Gov. Christie’s and President Obama’s soon become the rule rather than the exception, thereby rendering such displays of courage unnecessary.
As we approach the tenth anniversary of 9/11, Brennan Center counsel Emily Berman and Seton Hall Law Professor Jonathan Hafetz assess an unjust detention regime, the role of habeas corpus, and how the Warsame case underlines political tensions at the heart of our approach to terrorism. This is the first in a series of conversations that we will post in the coming days.
Jon, thanks so much for taking the time to answer questions and give us some thoughts regarding the detention of terror suspects.
I really enjoyed reading your book. It not only provides a detailed explanation of how America’s detention system developed and spread across the world, but also the crucial role that the Writ of Habeas Corpus plays in preventing unjust detention. Your story ends as the Bush Administration is leaving office, and notes some of the challenges that the new administration would face. Well, the new administration has been confronting these challenges for over two years now. And it’s remarkable to me how many issues that you address in your book remain salient today — much more so than I think either of us hoped or expected when this book went to press.
As a country and as a society, we still have not resolved whether or how to close the Guantanamo Bay detention center, where (if anywhere) to detain terrorism suspects, whether to prosecute terrorists in military commissions or federal courts, or whether the use of torture is an acceptable means of intelligence collection. As one attorney representing detainees recently pointed out, we used to know the answers to all these questions. Indefinite detention without charge or trial was unthinkable, the U.S. criminal justice system was the place to punish terrorists for their attacks on American interests, and the idea of using torture was anathema. But today all of these issues seem to be on the table for discussion.
As a country and as a society, we still have not resolved whether or how to close the Guantanamo Bay detention center, where (if anywhere) to detain terrorism suspects, whether to prosecute terrorists in military commissions or federal courts, or whether the use of torture is an acceptable means of intelligence collection.
So, while the Supreme Court’s Boumediene decision confirmed that the detainees at Guantanamo enjoy a constitutional right to habeas corpus, and waterboarding seems to be a thing of the past, have we made any meaningful progress since the first detainee was brought to Guantanamo Bay?
--Emily Berman
Ithink we have made some progress since the first prisoners were brought to Guantanamo Bay in January 2002, almost a decade ago. At the time, the names of detainees were secret, lawyers were prohibited from traveling to the naval base, and the detainees had no opportunity to access the U.S. court system. In addition, the treatment of the detainees at Guantanamo bordered on, and in some instances amounted to, torture. Today, the names of the detainees are public, lawyers can visit detainees who they are representing (though travel remains costly and difficult), and the Supreme Court has recognized that the detainees have a constitutional right to habeas corpus, which provides them access to the U.S. courts. Conditions, moreover, have improved substantially.
These changes, however, took many years to achieve, causing profound (and unnecessary) suffering and undermining respect for the rule of law. These changes also are limited in numerous respects. Most importantly, the legal structure underlying Guantanamo remains largely intact, and its key features — the indefinite detention of terrorism suspects without criminal charge and the use of military commissions rather than civil courts — are becoming increasingly institutionalized. Further, the public pressure to close Guantanamo — a goal supported by both presidential candidates in 2008 — has vanished. Indeed, the United States is further from closing Guantanamo today than when President Obama was inaugurated. The question now seems not to be whether Guantanamo will close (it will not, at least not in the foreseeable future), but rather how much the prison — and the alternative legal framework it embodies — will expand.
--Jonathan Hafetz
A couple recent stories also suggest that the Obama Administration is exploring additional ways of perpetuating an indefinite detention regime. For example, we learned in recent weeks about Ahmed Abdulkadir Warsame, a man suspected of providing material support to two groups designated by the U.S. government as terrorist organizations: al-Shabab, the militant Islamist group operating primarily in Somalia, and Yemen-based al-Qaeda in the Arabian Peninsula (AQAP). Warsame was captured by U.S. special forces, held incommunicado for two months on a navy vessel in international waters while being interrogated, and then — after being read his Miranda rights and re-interrogated by law enforcement personnel — transferred to the United States for prosecution. This case succeeded in raising objections from both ends of the political spectrum — elements of the political right were outraged by the Obama Administration’s decision to bring Warsame to the U.S. for prosecution, rather than sending him to a military commission. And the political left raised objections to the two months of detention without charge or trial, during portions of which even the International Committee of the Red Cross had no access to the detainee.
What do you think of this “split the baby” approach?
--Berman
The Warsame case highlights tensions at the heart of the United States’ approach to terrorism. Above all, it focuses attention around the legitimate scope of the United States’ continued use of a military, law-of-war based approach to the detention and interrogation of terrorism suspects. In the Obama administration’s view, the U.S. can either prosecute terrorists in federal court (in which case they will be afforded the protections of the Bill of Rights) or subject them to military detention under the 2001 Authorization for Use of Military Force (AUMF) (in which case they can be held without trial and potentially without any judicial review via habeas corpus).
Warsame was held for two months under the AUMF, before he was brought to trial. Not only is the length of his extrajudicial detention problematic (far exceeding the normal constitutional rule requiring presentment within 24 hours) but, under the administration’s view, he could have been held indefinitely without charge or access to court. How long, one might ask, would Warsame have remained in detention if the U.S. government did not believe it had gathered enough evidence (through Warsame’s interrogations or other means) to charge him with a crime?
That Obama was criticized for bringing Warsame to the U.S. for trial shows just how much things have changed since 9/11 and the degree to which lawmakers, courts, and the public have accepted the legitimacy of the subjecting terrorism suspects to an alternative system that denies core protections of the Constitution.
Additionally, even if one accepts the legitimacy of military detention under the AUMF beyond the battlefield-circumstances recognized in the Supreme Court’s 2004 decision in Hamdi v. Rumsfeld, Warsame’s detention raises serious concerns about the AUMF’s scope. Specifically, how was Warsame covered by the statute? Because he was “part of” al Qaeda? A part of AQAP (Al Qaeda in the Arabian Peninsula), which the administration considers an “associated force” within the meaning of the AUMF? While the criminal proceeding may raise interesting questions around Warsame's interrogations and the admissibility of any statements he made while in custody overseas, it is unlikely to address the legitimacy of the government's claimed military detention authority.
One additional point. That Obama was criticized for bringing Warsame to the U.S. for trial (rather than keeping him on a ship or taking him to Guantanamo or Bagram) shows just how much things have changed since 9/11 and the degree to which lawmakers, courts, and the public have accepted the legitimacy of the subjecting terrorism suspects to an alternative system that denies core protections of the Constitution. Ironically, had someone like Warsame been brought to the U.S. to face indictment in 2002, there would have been no corresponding outcry from the Right. I discuss this dynamic in the final chapter of my book, underscoring how each new incident involving terrorism reignites debates about practices like indefinite detention, military prosecution, and coercive interrogations and underscores the degree to which they have become accepted as a "new normal."
On June 12, 2011, the New York Timesreported that the FBI plans to amend its Domestic Investigations and Operations Guide (“DIOG”), the set of rules that governs the Bureaus’ investigative activities, to extend “significant new powers” to investigators. A subsequent editorial registered concerns about these changes and their civil liberties implications. These reported changes are the latest in a series of alterations to FBI policies implemented in the last decade (discussed in detail in the Brennan Center report Domestic Intelligence: New Powers, New Risks) that have radically expanded the FBI’s power to investigate and collect intelligence information — often without any indication of wrongdoing — about Americans.
According to reports, the impending changes to the DIOG would allow agents to
conduct searches of commercial or law enforcement databases to gather information about individuals who are not the subject of any official investigation;
search an individual’s trash for the purpose of finding material that might pressure him or her into becoming a government informant at the “assessment” stage, when the investigation need not be based on any factual predicate; and
participate covertly in several meetings of groups, such as religious congregations or gatherings of political activists, without any applicable rules at all.
Just as troubling as the reported changes is the fact that the proposed rules themselves remain secret — as do some portions of the existing rules (most notably, those governing covert participation in group meetings). It is therefore impossible to fully evaluate the implications of the reported changes. Nor do we know what other changes have been proposed but not reported in the media.
In the wake of the reports of these changes, FBI officials challenged the Times’ characterization of the amendments, arguing that they are merely some minor “fine-tuning” of the existing rules. These official statements continue another trend: government efforts to downplay the significance of changes to the FBI’s investigative rules. Over the past several years, FBI and Justice Department officials have consistently rejected assertions that changes to the rules have extended new powers to the FBI. An examination of several of these statements shows, however, that they have been misleading, incomplete, or simply incorrect.
Unfortunately, in editorializing on the most recent changes, the Washington Post seems to rely on the FBI’s assurances, calling the changes “relatively modest and reasonable.” While this description of the changes is charitable at best, even the Post recognizes that such powers demand stringent oversight. The Post provides a list of steps that should be taken to prevent FBI excesses: First, the FBI should make the new rules public to the extent possible; second, Congress should “keep close tabs on how the new rules are applied”; and third, the President should nominate a new Justice Department Inspector General, the department’s internal watchdog, to replace the highly effective Glenn Fine who retired from the position several months ago.
This call for oversight is right on the mark, but the list is incomplete. In addition to these measures, the Brennan Center, the Bill of Rights Defense Committee, and Defending Dissent have called on the Senate Judiciary Committee to hold hearings on the new DIOG rules before they go into effect in order to determine how they will work, to insist that the FBI explain why they are necessary, to explore whether they are consistent with existing FBI policy and regulations, and to consider the many constitutional and privacy concerns they implicate.
The FBI should of course have the power to follow every lead. But agents can do that without using the highly intrusive tools permitted by the current rules, much less the even-more-liberal impending rules. Congress should not allow these changes to be mischaracterized as “fine tuning” and slipped through without scrutiny. This time around, a real inquiry is in order.
Radicalization is complex. Yet a thinly-sourced, reductionist view of how people become terrorists has gained unwarranted legitimacy in some counterterrorism circles. This view corresponds with—and seems to legitimize—“counter-radicalization” measures that rely heavily on non-threat-based intelligence collection, a tactic that may be ineffective or even counterproductive. Only by analyzing what we know about radicalization and the government’s response to it can we be sure that these reactions are grounded in fact rather than stereotypes and truly advance our efforts to combat terrorism.
In a New York Timesbloggingheads segment, the Brennan Center's Faiza Patel, author of the recent report Rethinking Radicalization, discussed law enforcement's attempt at understanding terrorism and how these theories of radicalization come into play. Arun Kudnani of the Open Society Institute joined the conversation.
Since 9/11, the FBI's power to investigate and collect information about Americans, often without any indication of wrongdoing, has expanded on several occasions. Now, according to the New York Times, the FBI is once again poised to extend its authorities by issuing a new version of the rules governing its domestic investigative activity. The changes represent another significant and troubling expansion of power, approved not by Congress or the Attorney General, but apparently by the Bureau itself.
Modifications to the FBI's rules governing agents' undisclosed participation in groups, such as religious congregations or political activists, are perhaps the most problematic. Current rules governing the FBI's monitoring of groups already cause serious concern because they are not even public, leaving us with no idea what constraints are in place or if they are sufficient. Now, the proposed changes allow FBI agents to attend five group meetings before those rules even apply. But what of the information gathered during those five sessions? Does a list of attendees make its way into a government database? Does a political activist opposed to U.S. policy find herself on a watchlist?
New rules regarding searching commercial or law enforcement databases also seem to invite abuse. They permit agents to search these databases without making any record of the search. Will an agent be able to resist the temptation of searching for information about neighbors, ex-girlfriends, or celebrities, knowing that he will not be asked to account for the search because no record of it exists?
Agents may also search an individual's trash for the purpose of finding material that might pressure him into becoming a government informant. Reports that federal agents use potential informants' immigration status or that of their family members for this purpose are already rampant. Now, agents will also be able to threaten a husband that they will show his discarded pornography to his wife, or threaten to bring criminal charges against someone whose trash contains traces of marijuana.
The FBI should of course have the power to follow every lead. But agents can do that without using the highly intrusive tools permitted by the current rules, much less the even-more-liberal impending rules — this is not an all or nothing issue.
An agent can respond to a tip about a suspicious-looking car with no license plate by going to look at the car to determine if it poses a threat — such as whether it contains some sort of explosive device. The current regulations, however, would allow that agent to look at the car; follow its driver 24-hours per day documenting all of his activities; interview his neighbors under the pretext of being someone else; and send an informant into his place of worship to find out what his rabbi, priest, or imam preaches. And the new rules add to that list the ability to go through the driver's friends', coworkers', or neighbors' garbage, looking for leverage to use to get them to spy on him.
These most recent changes also raise what is perhaps a broader, more systemic concern: One can infer from the New York Times article's statement that the FBI "does not need permission to alter its manual" that the FBI itself took the lead in formulating these new rules. This is problematic.
The very purpose of this set of rules is to ensure that the FBI's investigative activities are limited in scope, never more intrusive than necessary, and subject to proper oversight. They safeguard Americans' civil liberties against law enforcement activities that, absent sufficient regulation, could result in unwarranted intrusions into people's lives. But even the most well-intentioned FBI officials are likely to craft rules that err on the side of permitting agents to act aggressively. Thus the fox is not only guarding the henhouse — he is also determining how high the fence that surrounds it and how thick the walls will be.
A continuing trend — one that started years ago but accelerated rapidly after 9/11 — is to increase federal law enforcement power while cutting back oversight of how that power is used. This trend has eliminated many of the measures implemented to avoid the now notorious Hoover-era abuses resulting from the consolidation of too much power within a domestic intelligence agency. In light of these many recent changes, it is time that Congress and the American people take a closer look at the FBI's investigative powers, consider whether they may have grown too broad, and act to re-establish meaningful limits on the ways the Bureau carries out its mission.
As House Homeland Security Committee Chair Peter King (R-N.Y.) is set to hold his next hearing on the "radicalization" of American Muslims — this time focusing on prisons — it is instructive to see what his last two hearings accomplished.
King's March hearing on "The Extent of Radicalization in the American Muslim Community and that Community's Response" failed to establish that "radicalization" was a problem. To the contrary, it prompted a number of law enforcement and government officials to come forward and attest to the constructive role American Muslims had played in thwarting terrorist plots, undermining the hearing’s basic premise.
At last month's hearing on "Threats to the American Homeland after Killing Bin Laden," some Congressmen tried to push the view that American Muslims are a security problem. During the hearing’s Q&A, Representatives Dan Lungren (R-Calif.) and Joe Walsh (R-Ill.) pointedly asked their handpicked witnesses whether radicalization was prevalent among American youth. While Peter Bergen of the New America Foundation skirted the issue, both Fran Townsend (former President Bush's counter terrorism advisor) and Evan Kohlman (a cable TV commentator and self-proclaimed counterterrorism expert) were quick to declare that radicalization among American Muslims was a "fact" and that any attempt to deny it was simply political correctness.
What both of Rep. King's hearings failed to consider is what we mean when we say "radicalization." The term can cover a range of behavior and activities, only some of which are appropriately of concern to our government. "Radicalization" can refer not only to the preparations for and execution of terrorist acts, but also to the espousal of beliefs that are outside the mainstream. The theory embraced by several law enforcement agencies suggests that one naturally leads to the other — i.e., that there is a sort of "religious conveyor belt" — a consistent and predictable progression that begins with evincing a conservative or radical understanding of Islam and ends with acts of violence. Both Rep. King and his counterpart in the Senate, Sen. Joe Lieberman (I-Conn.), buy into this theory.
But the religious conveyor belt theory is simply not supported by evidence. Decades of research by governments and social scientists demonstrate that there is no single path to terrorism and no single profile of a terrorist. Rather, as a recent study by professors Clark McCauley and Sophia Moskalenko explained, there are many different paths to terrorism, some of which "do not include radical ideas or activism on the way to radical actions, so the radicalization progression cannot be understood as an invariable set of steps or 'stages' from sympathy to radicalization."
Acceptance of the flawed religious conveyor belt theory by Congressional leaders and law enforcement agencies has enormous negative consequences. It undergirds the view that our national security is served by monitoring the religious views of American Muslims to identify potential terrorists. An example of this theory is a recent FBI presentation in which agents reportedly urged Muslim community leaders to inform on religious behavior, such as asking women to cover their heads when entering a mosque. FBI agents apparently considered this to be a sign of religious extremism, although it is common practice in Islam and other religions. These types of tactics undermine core Constitutional rights, such as freedom of speech and the freedom to worship. They have caused deep rifts with the very American Muslim communities with whom the FBI and local police departments have sought to build trusting relationships in order to advance our counterterrorism efforts.
So how should we address the issue of how people become terrorists? First, we should stop talking about "radicalization" as a problem. The problem is violence. Whether people commit violent acts in the name of Islam or in the name of some other belief system, our government’s role must be focused on the act, not the ideology. The Department of Homeland Security and the White House have taken important steps to recognize this and now focus on "violent extremism" rather than radicalization. An excellent next step would be to characterize the problem as extremist violence so that the emphasis is squarely on the source of the concern — violence — rather than on beliefs.
Second, the federal agencies that dole out counterterrorism dollars and the state and local police departments that consume them must be vigilant in vetting the content of the training given to FBI agents and local cops. Since 9/11, a cottage industry of self-anointed experts on Islam and terrorism has mushroomed. Many of these "experts" have little understanding of the subject matter and provide training that paints all Muslims as potential terrorists. For example, a recent class of NYPD recruits was shown the virulently anti-Muslim film, The Third Jihad, in the course of their training. The film seeks to incite fear of ordinary Muslims and their motives, declaring that various mainstream American Muslim organizations have a secret agenda to impose "Shariah law" over the United States, and frequently displays a black-and-white Islamic flag billowing over the White House.
Finally, we need to move beyond paying lip service to the idea of building trust with communities to taking concrete measures. The guidelines developed for the Department of Justice’s initiative for Building Communities of Trust identifies some important steps that we can take in this direction. At the core of these guidelines is the principle that "Police officers, crime analysts, and intelligence analysts cannot use race, ethnicity, national origin, or religious affiliation as factors to support suspicion and trigger investigations." The guidelines recommend training, transparency, and audit mechanisms to ensure implementation of this principle. This is a far more productive direction for government policy to take than tracking peoples’ religious and political views based on an incorrect theory of "radicalization."
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