HENTOFF: Terror investigations gone too far

Flawed guidelines for domestic surveillance

By Nat Hentoff | Monday, October 20, 2008

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Despite so little time left in the Bush administration, Attorney General Michael Mukasey has further diminished our civil liberties by embedding in the Bush legacy the Justice Department's newly expanded "Guidelines for Domestic FBI Operations." In its probing for any likelihood of terrorist activities, the FBI can conduct investigations, "threat assessments," on individuals and organizations without any specific evidence of wrongdoing.

No judicial warrants are required as Mr. Mukasey and FBI chief Robert Mueller suspend the Fourth Amendment's "right of the people to be secure in their persons, houses, papers and effects" - outside their homes as well, and in their use of phones, the Internet, et al.

Moreover, in the course of searching for patterns of suspicious terrorist links, FBI agents, free from Bill of Rights constraints, can - as in the glory days of J. Edgar Hoover - covertly infiltrate lawful groups, deploy informants and "assess" such potential identifiers in suspects as race, ethnicity and religion.

So, under these new FBI powers, am I under suspicion of subversion for undermining Messrs. Mukasey and Mueller by publicly recalling that on Sept. 12, 2001, President Bush declared: "We will not allow this enemy to win the war by changing our way of life or restricting ones freedoms?"

Ah, but FBI agents, say Messrs. Mukasey and Mueller, must be careful to "avoid unnecessary intrusions into the lives of law-abiding people." Think about that problem for them. As Anthony D'Amato, professor of Law at Northwestern University, reasonably asks - on the University of Pittsburgh School of Law's Web site, "Jurist" - "how can the FBI know that anyone is a law-abiding person without making an investigative intrusion into his or her private affairs?"

Since there is no judicial supervision, and no requirement that FBI agents begin their "assessments" with any specific evidence of wrongdoing, Mr. D'Amato asks, "Do the Guidelines provide any limitations to the powers of the FBI?"

The answer - by plainspoken Caroline Frederickson, director of the American Civil Liberties Union's Washington Legislative Office: "Though the Department of Justice (headed by Mukasey) and FBI claim they are doing what they must to meet the law enforcement needs of the future, they are only doomed to repeat the abuses of the past." She continues, "Under these guidelines, since a generalized 'threat' is enough to begin an investigation, the FBI will be given carte blanche to begin surveillance without factual evidence. The standard of suspicion is so low and the predicate of investigations so flimsy that it's inevitable we will all become suspects."

Well, not all of us. Certainly Messrs. Mukasey, Mueller and other guardians of national security in this administration will be immune from the guidelines' intrusion into their public and private lives. But in view of the abundant record of past and present FBI agents' disregard of their previous guidelines, it is hardly paranoid to be mistrustful of letting warrantless FBI agents loose into such fenceless national grazing pastures.

I, an unyielding anti-Communist from the time - at 15, when I read Arthur Koestler's "Darkness at Noon" - am old enough to remember the care many of us nonsubversives took during the years of J. Edgar Hoover's measuring of Americans' patriotism. There were certain magazines, bookstores and meetings to be avoided - and petitions to be signed only gingerly, if at all. And we heard - and read - of careers being broken by McCarthyism and J. Edgar Hoover. CBS's Edward R. Murrow didn't have enough television time to rehabilitate all the suspects.

But finally, we did have a Bill of Rights hero back then. Sen. Frank Church of Idaho - chairman of the Senate Select Committee to Study Government Operations with Respect to Intelligence Activities - presided over hearings that starkly illuminated, with concrete evidence, the utter contempt for the Bill of Rights by the FBI and various congressional un-American activities committees.

In 1975, Mr. Church, addressing the un-American record of Mr. Hoover, said that the FBI had engaged in "a sophisticated vigilante operation aimed squarely at preventing the exercise of First Amendment rights of speech and association." The senator then pledged:

"The American people need to be reassured that never again will an agency of the government be permitted to conduct a secret war against those citizens it considers a threat to the established order."

That assurance, so passionately and patriotically given, has since, of course, been betrayed by many government surveillance agents and their superiors over the years. That Mr. Mukasey and Mueller - with no objections from President Bush - have chosen to revive that secret war against the Constitution leads to a very pertinent question:

Will the next president and Congress retain these Mukasey-Mueller Guidelines for Domestic FBI Operations? The silence from Barack Obama and John McCain has, alas, not been surprising.

Nat Hentoff's column for The Washington Times appears on Mondays.

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