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More Surveillance Doesn’t Mean Greater Safety

Would greater surveillance powers help the F.B.I. stop terror attacks like those in Boston or Orlando? At The New York Times’ Room for Debate, Faiza Patel argues no.

September 22, 2016

Cross-posted from The New York Times’ Room for Debate

Before Ahmad Khan Rahami was charged with setting off a bomb in Manhattan, before Tamerlan Tsarnaev set off a bomb at the 2013 Boston Marathon, and before Omar Mateen murdered 49 people at an Orlando, Fla., night club this year, the Federal Bureau of Investigation knew they had been suspected of extremism and had investigated them. But each investigation was shut down without conclusion before the attacks occurred.

What more can the F.B.I. do when they are made aware of someone who is suspected of being an extremist?

More Surveillance Doesn’t Mean Greater Safety

It is tempting to think that the F.B.I. should have done more to keep tabs on Rahami, Matteen and Tsarnaev. But we should resist the temptation.

Tracking more people is unlikely to make us any safer, but it would certainly result in open-ended investigations of thousands of Americans not suspected of any wrongdoing.

The F.B.I. has ample authority to probe anyone suspected of having extremist ties. As The New York Times reported, F.B.I. agents “constantly monitor chat rooms, the Islamic State’s Twitter accounts and other online traffic” to identify and track individuals who may be interested in joining the group’s cause. They undoubtedly do the same for other terrorist groups.

The bureau can also open a low-level investigation called an assessment whenever it determines that there is an “authorized purpose” such as protecting against national-security threats regardless of whether it has particular information suggesting wrongdoing. Even a full investigation, which makes more intrusive techniques available, requires only an “articulable factual basis” that “reasonably indicates” someone is planning criminal acts. This standard is “substantially lower” than the probable cause required for a search warrant or wiretap.

Keeping files open when even these low standards are not met will only further burden a system that is already under pressure from too much information, most of it irrelevant. The vast majority of assessments come up empty. In a recent two-year period, the F.B.I. opened 82,325 assessments, of which roughly 4 percent justified further investigation. Only a very few resulted in prosecutions (fortunately, terrorism remains rare in the United States, accounting for a few dozen out of 14,000 murders per year). Nor should thousands of Americans be kept indefinitely under government watch when they are not suspected of wrongdoing, particularly based on vague notions of “extremism.” The First Amendment protects all speech because the founders understood how easy it is subvert democracy by branding dissenting voices as unacceptable.

We cannot know for sure whether the F.B.I. missed something in its investigations that might have stopped Rahami or the others. But we do know that violence of any kind is near impossible to predict. There is no profile of someone who becomes a terrorist or checklist of indicators. Things that seem relevant after someone has committed an act of violence — e.g., anger over government policies or increasing religiosity — are simply not uncommon. Hindsight is 20/20, real time is not.

In response to Paul Rosenzweig at Room for Debate.

The F.B.I. Already Has Enough Latitude for Investigations

I agree with Paul that law enforcement’s record in foiling terrorist plots is one of “relative success.” Part of that success is attributable to Muslim Americans, who have an exemplary record of cooperating with law enforcement; according to multiple studies, they have provided information on about a third or more of foiled plots.

But I disagree that we need to further enhance the F.B.I.’s authorities. To begin with, the guidelines under which the bureau operates can hardly be regarded as protective of civil liberties. They were issued in the waning days of the Bush administration over strong objections from civil liberties groups to drastically expand the F.B.I.’s authorities, particularly by adding a new category of investigations called assessments that are explicitly called “unpredicated” – i.e., no factual basis required.

Paul suggests that the guidelines should have a more open-ended time frame where there are “significant indicators of potential terrorist threat,” such as Rahami’s travel to Pakistan combined with his father’s warning, to focus investigations on “situations that reflected reasonable grounds for suspicion.” In fact, the F.B.I. has this flexibility. F.B.I. regulations put no outside time limits on assessments, requiring only supervisory re-approval every 30 days (the assessment of Tamerlan Tsarnaev took three months). Preliminary investigations require only “information or an allegation,” and are opened initially for six months, but can be renewed for another six months at the field office level, and then again with headquarters approval (the preliminary investigation on Omar Matteen lasted 10 months). Arguably, even the standard for full investigations, which have no time limit – requiring only an “articulable factual basis” of possible threat activity – is lower than Rosenzweig’s proposed “significant indicators of potential terrorist threat.”

Open-ended investigations are not cost-free, especially for those who are active in social justice and political movements. While we mostly hear about the handful of people who crossed the F.B.I.’s radar and went on to violence, its recent targets include Greenpeace, the Global Network Against Weapons and Nuclear Power in Space, the Catholic Workers’ Union, antiwar protesters such as the Thomas Merton Center, as well as environmental and animal rights activists. The Black Lives Matter movement too has been the subject of law enforcement monitoring.

Asking F.B.I. agents to get supervisory approval to continue investigations seems a small price to pay to ensure that they focus where there is some evidence of a threat, and not on the variety of voices that are critical to our democratic system.