Published in The National Law Journal.
The U.S. Department of Justice's internal watchdog recently confirmed what we already knew: From 2001 through at least 2006, the FBI spied on the First Amendment-protected activity of nonviolent anti-war, environmental and animal rights groups. In so doing, the FBI exceeded its investigative authority, intruding on the privacy, free expression and right to assemble of innocent Americans.
Clearly, the FBI should have the authority to investigate not only crimes that already have occurred, but imminent criminal activity or threats to the homeland as well. But such pre-emptive investigations pose unique risks. Those risks, and the corresponding need for robust safeguards, are evident in this latest FBI fiasco.
Responding to media reports, as early as 2006 Congress had asked the Justice Department's inspector general to study whether the FBI improperly targeted domestic advocacy groups for investigation based on their members' exercise of First Amendment rights. The report found "troubling" results. Across a range of investigations, agents improperly collected and retained information; initiated investigations with insufficient justification; and labeled as "terrorism investigations" — thereby making available additional surveillance powers — matters having nothing to do with what most Americans would consider terrorism. On several occasions they also permitted investigations to continue far beyond the point at which they should have been closed, improperly keeping the targets on watch lists, allowing the government to track their travel and investigate their associates, for years.
The report is disturbing, but not surprising. Throughout its history, the FBI has struggled to comply with reasonable limits on its investigative activity. The Bureau has been particularly prone to excess when, as now, it has focused on collecting intelligence to neutralize inchoate threats. The Church Committee's revelations in the 1970s exposed a series of covert action programs — including wiretaps, bugs, break-ins and mail opening — that targeted civil rights and anti-war groups in order to harass and discredit them. Among other abuses, the FBI infiltrated both the NAACP and women's liberation movement organizations for decades with no hint of criminal activity. It also attempted to provoke a tax investigation to deter a protest leader from attending the Democratic National Convention; falsely labeled as government informants members of groups believed to be violent, in order to expose them to expulsion or physical attack; and attempted to provoke violent conflict between the leader of a Chicago street gang and the Black Panthers. Perhaps most famously, it engaged in intensive surveillance of Martin Luther King Jr., seeking information to undermine his reputation.
The FBI's recent transgressions — those we know about, anyway — may seem less dramatic by comparison, but they are serious nonetheless. A 2005 report by the Justice Department's inspector general, for example, revealed that agents failed to secure the proper authorization for the use of confidential informants and failed to maintain the required documentation regarding agents' visits to public events. A 2007 internal review of the FBI's use of national security letters (akin to administrative subpoenas) unearthed a range of problems, including erroneous reports to Congress and a host of national security letters issued in violation of FBI policies and regulations. And more recently, a scathing report documented the FBI's systemic use of unlawful means of acquiring thousands of telephone records during the course of several years. This most recent report, which covers activity through 2006, simply shows more of the same.
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