Monday, August 25, 2008

Who wouldn't trust the FBI?

Last week, four United States senators wrote to Attorney General Michael B. Mukasey, objecting to draft guidelines, set to take effect in October, that, they warn, will set the Federal Bureau of Investigation loose to use intrusive investigative techniques against Americans even without suspicion of wrongdoing.

We are concerned about the extent to which such authority might, for example, permit the FBI to conduct long-term physical surveillance of an innocent American citizen; interview such an individual’s neighbors and professional colleagues, including based on a “pretext” or misrepresentation; recruit human sources to provide information on that individual; or conduct commercial database searches on that individual – all without any basis for suspicion. ... We are particularly concerned that the draft guidelines might permit an innocent American to be subjected to such intrusive surveillance based in part on race, ethnicity, national origin, religion, or on protected First Amendment activities.

Pointing to what seems to be the continuing evolution of the FBI's role in the wake of the 2001 terrorist attacks, the senators add:

We are concerned about the extent to which the FBI may be permitted to gather or use information about Americans under the rubric of foreign intelligence gathering when there is no suspicion of a crime, threat to national security, or any other wrongdoing.

It's difficult to judge the validity of the senators' fears about the proposed guidelines, because they're not yet available to the public. In fact, Senators Russell Feingold, Edward Kennedy, Richard Durbin and Sheldon Whitehouse say they've had limited access to the guidelines, even though implementation is imminent. The draft guidelines have been made available to members of Congress and their staffs "only a few hours at a time over the course of a week and a half" during the August recess.

Responding to congressional concerns that lawmakers are being shut out of what appears to be a major shift in law-enforcement policy, Mukasey says he'll hold off on signing the guidelines until after FBI director Robert Mueller testifies before the Senate Judiciary Committee on September 17. But implementation remains on schedule for October.

Legislators may be almost as much in the dark as us mere peons, but we can still read between the lines -- both from the senators' letter and from Mukasey's own statements.

In remarks made this month at the Oregon Anti-Terrorism Conference and Training, the AG boasted, that "[t]he implementation of new Attorney General Guidelines will help in the Bureau’s transformation into an elite national security organization." He specified that the new guidelines will eliminate the distinction between criminal and national security investigations, so that the same techniques and resources will be available in all cases.

In his remarks, Mukasey recognized that "[s]ome may objact to these new Guidelines precisely because they expressly authorize the FBI to engage in intelligence collection inside the United States." But he countered that the FBI has always had this power, and that it's necessary to pursue domestic intelligence in the wake of 9/11. He also promised that all activities will be conducted "in conformity with the Constitution and all applicable statutes, executive orders, and Department of Justice regulations and policies."

But the FBI's record on this count isn't very good. As the senators point out in their letter, FBI guidelines were first implemented to remedy domestic surveillance abuses in the 1960s and the 1970s. John Lennon was among the people monitored by the feds for their political views. So was Martin Luther King.

We don't have to delve into the past to find evidence of FBI overstepping, and there's no grounds for Mukasey to pretend that abuses of surveillance powers are ancient history. Just two weeks ago, Senators Arlen Specter and Patrick Leahy wrote to FBI Director Mueller, complaining that "the Federal Bureau of Investigation (FBI) misused so-called 'exigent letters' to obtain the telephone records of reporters working in the Jakarta, Indonesia, bureaus of The Washington Post and The New York Times."

That letter cited a scathing March 2007 Department of Justice Inspector General's report which found extensive abuses of the use of national security letters and exigent letters to obtain information. Mueller has apologized to the Times and the Post for his agency's interception of the phone records, and the use of exigent letters has been suspended. But the FBI remains an agency -- like most any government body you can imagine -- with a history of misusing whatever power it has and pushing its mission to the extreme.

That's the FBI that Mukasey wants to explicitly unleash as a domestic spook operation.

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