Blog of Rights

Michael
German

The Erosion of Posse Comitatus

By Michael German, Senior Policy Counsel, ACLU Washington Legislative Office at 2:26pm

(Originally posted on Daily Kos.)

Remember Esequiel Hernandez, Jr.? "Junior," as he was known, was an American teenager shot and killed in 1997 by U.S. Marines as he tended a flock of goats near his home one evening in Redford, Texas. The Marines, fully armed and dressed in camouflage ghillie suits, were operating on U.S. soil as part of a covert counter-drug mission supporting the Border Patrol. They were not supposed to come into contact with civilians; rather they were just to observe and report what they saw to the Border Patrol. But Junior had a .22 caliber rifle with him, and it appears he fired at least one shot from it that evening. What he was shooting at isn't clear. The Marines looked more like tumbleweeds than men, and none of them were hit. But as war-fighters, Marines are trained to engage a threat until it is destroyed, without asking a lot of questions. While this mission orientation is essential in combat, it is a poor fit with the shades-of-gray world of domestic policing. In any event, they followed their military "rules of engagement," advanced their position and returned fire, killing Junior with a bullet to the chest.

The reason I bring this incident up is that it demonstrates the risks of using military forces in domestic law enforcement missions. From their colonial experience, the framers of the Constitution recognized the threat a standing army posed to democracy, and they sought to establish a government that guaranteed civilian control over the military. This ideal was finally codified after the Civil War through the Posse Comitatus Act, which prohibited the Army from engaging in law enforcement activities.

The Posse Comitatus Act should have prevented what happened to Junior. But Congress has weakened Posse Comitatus over the years to involve the military in drug enforcement, border control and all sorts of other "domestic support" operations. Today, the number of domestic missions the military is accepting and the number of troops it is deploying inside the U.S. is drastically increasing, making future tragedies like Junior's only more likely.

DOD to ACLU: We surrender.

By Michael German, Senior Policy Counsel, ACLU Washington Legislative Office at 11:12am

(Originally posted on Daily Kos.)

It might seem hard to believe, but it is true. The Department of Defense (DOD) considers protests an example of "low-level terrorism," at least according to an exam DOD employees were required to take…

Why Protect Whistleblowers?

By Michael German, Senior Policy Counsel, ACLU Washington Legislative Office at 3:49pm

(Originally posted on Daily Kos.)

In the weeks leading up to the September 11, 2001 terrorist attacks, FBI officials denied a New York agent’s request to start looking for a known al Qaeda operative who had entered the United States,…

Soon, We'll All Be Radicals

By Michael German, Senior Policy Counsel, ACLU Washington Legislative Office at 12:14pm

A series of leaked "intelligence" reports have caused quite a dust-up over the last several weeks. A Texas fusion center warned about a terrorist threat from "the international far Left," the Department of Homeland Security and…

FBI Director Mueller Endures Interrogation by House and Senate

By Michael German, Senior Policy Counsel, ACLU Washington Legislative Office at 1:10pm

In the past two days, we have seen FBI Director Robert Mueller go before both the House and Senate Judiciary Committees for oversight hearings, the congressional equivalent of a checkup. But the recently proposed changes to the FBI's investigative guidelines made these appearances anything but routine. ACLU Policy Counsel Mike German attended both hearings, and has lent insight into some of the more outlandish highlights they produced:

Director Mueller made some odd comments during his testimony to justify the need for the newly proposed guidelines. He kept playing on the theme that there are things FBI agents can do in criminal investigations that they cannot do in national security investigations, and that it was only reasonable to create a single set of guidelines.

He said:

To give you a few examples, in the guidelines governing national security investigations prohibited recruiting or tasking sources unless the FBI had at least a preliminary investigation open. They also prohibited physical surveillance other than casual observation, while the general crimes guidelines, which governed other criminal investigations, did not contain these limitations. So, ironically, in my cases an agent could readily use physical surveillance to watch a suspected smuggling route for drugs or counterfeit blue jeans but not for a terrorist bomb.
This is of course, absurd. Smuggling bombs is a crime so the example just doesn't make sense. What the FBI is really demanding in the new guidelines is the authority to conduct "assessments" against Americans using intrusive investigative techniques, even when the FBI has no factual support to suggest they are smuggling blue jeans, bombs or doing anything else that is illegal or dangerous to national security.

What it brings out, however, is that the FBI is interpreting its authority under the Ashcroft guidelines on general crimes to "check leads" as authorization for the activity they are now calling "assessments." The language in the Ashcroft guidelines regarding the checking of leads authorizes the FBI to conduct "prompt and extremely limited checking out of initial leads" to determine whether enough information exists to open an investigation. It goes on to say: "This limited activity should be conducted with an eye toward promptly determining whether further investigation (either a preliminary inquiry or full investigation) should be considered." The idea that "prompt and extremely limited checking out of initial leads" would authorize 24/7 physical surveillance, the recruiting and tasking informants and conducting "pretext" — that means undercover — interviews for an unlimited amount of time is just plain shocking. There's no point in having guidelines if the FBI will interpret plain language to mean something other than its commonly defined terms.

FBI's Civil Liberties History: Palmer Raids to Racial Profiling Guidelines

By Michael German, Senior Policy Counsel, ACLU Washington Legislative Office at 4:28pm

(Originally posted on Daily Kos.)

Since its inception 100 years ago this week, FBI has been assigned with an increasingly difficult task: protecting the public welfare in a free and democratic society.

Throughout its…

Expanding Failure

By Michael German, Senior Policy Counsel, ACLU Washington Legislative Office at 11:53am
On Tuesday, Director of National Intelligence Mike McConnell and CIA director Michael Hayden and told the Senate Intelligence Committee they believe the United States is still at great risk - even as they claimed their policies of torture and warrantless…

Parsing McConnell's FISA Lies

By Michael German, Senior Policy Counsel, ACLU Washington Legislative Office at 10:37am
There's been a lot of confusion of late about just how vital the Protect America Act has been in actually protecting Americans and preventing terrorism. First there were unrealistic claims of each FISA warrant taking 200 man hours to process. Wrong.…
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