Coalition Letter to Attorney General John Ashcroft Regarding the Relaxation of Guidelines In the Use of Domestic Spying
Attorney General John Ashcroft
U.S. Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Mr. Ashcroft:
The undersigned organizations are writing to ask you to leave the current guidelines on domestic spying in place rather than relax them.1 Relaxing the guidelines to allow the FBI greater freedom to investigate individuals and groups based on their beliefs is unwise, and unsound law enforcement policy.
The Church Committee Hearings in the 1970s revealed an FBI run amok. Americans were shocked to learn the FBI "monitored political demonstrations, infiltrated civil rights groups, conducted illegal break-ins and warrantless wiretaps of anti-war groups, [and] sent anonymous poison-pen letters intended to break up marriages of political group leaders."2
The Guidelines were adopted to prevent the intrusive investigations and techniques used by the FBI to target individuals or groups because of their beliefs. They make it clear that constitutionally protected advocacy of unpopular ideas or political dissent alone cannot serve as the basis for an investigation.
The rules require a valid factual basis for opening an investigation, which largely precludes wholesale FBI fishing expeditions. The threshold for opening a formal investigation is already minimal, requiring "reasonable indication." Preliminary inquiries require even less. The Bureau can begin a preliminary inquiry when it receives any information or allegation "whose responsible handling requires some further scrutiny."3 Nothing, however, prevents a preliminary inquiry from turning into a full investigation upon the Bureau receiving "reasonable indication" that a crime has been, or is about to be, committed.
Furthermore, the FBI's hands are not tied waiting for a crime to occur. The Guidelines recognize that "[i]n its efforts to anticipate or prevent crime, the FBI must at times initiate investigations in advance of criminal conduct."4
Even advocacy of violence, protected speech under the First Amendment, may form the basis for an investigation when there are indicia that a crime may be committed. While urging respect for the First Amendment, the guidelines state: "When, however, statements advocate criminal activity or indicate an apparent intent to engage in crime, particularly crimes of violence, an investigation under these guidelines may be warranted. . ."5
The Guidelines, therefore, focus the FBI on investigating crimes or gathering foreign intelligence information rather than harassing dissenters.
History has demonstrated that without those guidelines, the FBI targets individuals and groups based on their advocacy and association rather than for legitimate law enforcement. Relaxing the guidelines to allow greater spying on groups based on their First Amendment activity is counter-productive and wastes resources.
Political spying subverts our political freedom. It chills those who disagree with the status quo. Our Constitution allows everyone to have a voice, whether or not they agree with the majority.
Increased political spying not only harms our freedoms but has other consequences as well. It diverts resources from fighting real crime. While there may be groups in our country that espouse views with which many disagree, a relatively small number ever engage in criminal activity. Every FBI agent spending his days taking photographs at an anti-abortion rally, gun show, or other political rally is an agent not engaged in preventing and fighting crime.
Political spying is also likely to increase violence. Justice Louis Brandeis recognized long ago that the First Amendment acts as a safety valve. If people marginalized in our society are free to express their views and engage in political activity, they are less likely to resort to violence.
The FBI is already apparently filing reports on those who disagree with the current administration.6 Relaxing the Guidelines will only result in more intrusive activity. History and current events demonstrate the need for Guidelines that focus the FBI on investigating crime and legitimate intelligence-gathering. We, therefore, urge you not to relax those guidelines.
Sincerely,
Laura Murphy, Director
American Civil Liberties Union
Washington National Office
Sonia Arrison, Director
Center for Technology Studies
Pacific Research Institute
Ziad Asali, President
American Arab Anti-Discrimination Committee (ADC)
Nihad Awad, Executive Director
Council on American- Islamic Relations (CAIR)
Jerry Berman, Executive Director
Center for Democracy and Technology (CDT)
Joan Bertin, Executive Director
National Coalition Against Censorship
Yaser Bushnaq, Chief Coordinator
Solidarity USA
Jay Daryl Byler, Director
Mennonite Central Committee, US Washington Office
Heidi Boghosian, Executive Director
National Lawyers Guild
Rob Cavenaugh, Legislative Director
Unitarian Universalist Association of Congregations
Christine Chen, Executive Director
Organization of Chinese-Americans
Suzanne Crowell, Co-Chair
Fund for the Fourth Amendment
Lisa Dean, Deputy Director
Center for Technology Policy
Free Congress Foundation
Chris Finan, President
American Booksellers Foundation
Cheryl Fischer, Director
The Kumba Human Rights Focus Group
Stephanie Foster, Director Public Policy
People for the American Way (PFAW)
Margaret Fung, Executive Director
Asian-American Legal Defense and Education Fund
Kit Gage, Director
National Committee Against Repressive Legislation
Beth Givens, Director
Privacy Rights Clearinghouse
Ron Hampton, Executive Director
National Black Police Officers Association
Evan Hendricks, Editor/Publisher
Privacy Times
Albert Hirsch, Co-Director
Washington Ethical Action Office
Chris Hoofnagle, Legislative Counsel
Electronic Privacy Information Center
Amy Isaacs, National Director
Americans for Democratic Action (ADA)
Rafeeq Jaber, President
Islamic Association for Palestine
Florence Kimball, Legislative Secretary
Friends Committee On National Legislation (Quakers)
James Landrith, Editor
The Multiracial Activist and Abolitionist Examiner
Scott Long, Program Director
International Gay and Lesbian Human Rights Organization
James H. Matlack, Director
American Friends Service Committee
Washington Office
Ken McEldowney, Executive Director
Consumer Action
Joe Montano, Executive Director
National Federation of Filipino Americans (NAFFA)
Karen K. Narasaki, President
National Asian-Pacific American Legal Consortium
Hilary Shelton, Director
National Association for the Advancement of Colored People (NAACP)
Manjit Singh, Executive Director
Sikh Mediawatch and Resource Task Force
Keith Stroup
National Organization for the Reform of Marijuana
Nkechi Taifa, Director
Equal Justice Program
Howard University School of Law
Rep. James L. Thomas (AL), President
National Black Caucus of State Legislators
Coralee Whitcomb, President
Computer Professionals for Social Responsibility
Mark S. Zaid, Executive Director
The James Madison Project
Kevin Zeese, President
Common Sense for Drug Policy
Jim Zogby, President
Arab-American Institute
ENDNOTES
1 On December 1, 2001, the New York Times reported that Attorney General Ashcroft is considering a plan to relax restrictions on the FBI, giving them greater freedom to spy on religious and political organizations. Johnston and Van Natta, "Ashcroft Seeking to Free FBI to Spy on Groups," The New York Times, December 1, 2001.
2 David Cole, "Strict Scrutiny: How Not to Respond to Hate Groups," Legal Times, Weeks of August 25 and 30, 1999.
3 The Attorney General's Guidelines on General Crimes, Racketeering Enterprise and Domestic Security/Terrorism Investigations, at Section IIB.
6 Christian Science Monitor, "Political Dissent Can Bring Federal Agents to Door," January 8, 2002, located at: http://www.csmonitor.com/2002/0108/p1s4-usju.htm For example, San Franciscan Barry Reingold was interviewed by the FBI after making remarks in his local gym that "Bush has nothing to be proud of. He is a servant of the big oil companies and his only interest in the Middle East is oil." Two agents showed up at his home. After the agents assured him he was entitled to freedom of speech, Reingold said "Thank you. That ends our conversation." When Reingold closed his door, he heard one of the agents say "But we still need to do a report."