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The FBI’s Trojan Horse?

Hina Shamsi,
Director, ACLU National Security Project
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September 20, 2013

Over the past few decades, a paradigm shift has occurred within policing. Known generally as community policing, the basic idea is that state and local law enforcement officers should integrate themselves into the communities they serve.

The idea seems simple and, in theory, uncontroversial: the better the relationship police have with the public, the easier it will be to solve problems, such as crime, that affect everyone’s quality of life. But in practice, if police are not properly trained, if programs aren’t closely monitored for compliance with American communities’ constitutional rights, community policing can open the door to biased policing and other rights violations.

That’s what happened after 9/11, when the FBI initiated a mosque outreach program in Northern California.

Californian Muslim community members may have thought that the FBI was building relationships of trust by coming to mosques to discuss problems the community might face, such as hate crimes. That’s what the FBI did in the immediate aftermath of 9/11. But what appeared initially to be a laudatory program dedicated to protecting the civil rights of American Muslims developed into something very different.

In 2011, the ACLU discovered through Freedom of Information Act requests that the FBI secretly used the mosque outreach program—as well as other community outreach programs—to collect and record information about innocent Californian Muslims’ speech, beliefs, and other First Amendment-protected activities in violation of the Privacy Act. It’s important to stress the FBI collected information about First-Amendment protected activities—like who attended a religious service and the contents of their conversations—without any suspicion that anyone in attendance had done anything wrong, according to the documents the ACLU obtained.

The information was not stored in files documenting community outreach, but in intelligence files, which could be shared with state and local law enforcement and other intelligence agencies. Entirely unbeknownst to the Californian Muslims who opened their mosques and community organizations to the FBI, they were now at risk of being targeted for further intelligence investigation.

When we published our findings, the FBI defended itself, stating that its policies required an “appropriate separation be maintained between outreach and operational activities.” That’s all well and good, but why were these policies violated? Twenty-two members of Congress asked the Inspector General of the Department of Justice to investigate, as did the ACLU. To date, it doesn’t appear that any investigation has begun.

The problem, as we told the DOJ Inspector General, is a deeper one. The FBI’s outreach was actually undertaken under a broader FBI program called Domain Management. Under the Domain Management program, FBI agents collect information about racial and ethnic demographics and behavior and then map it based on the false assumption that there is a correlation between crime and where members of a particular religious, racial, or ethnic group live, eat, or pray. The result is disproportionate and unfair policing of only certain communities based on mass suspicion and bias.

And as the ACLU’s report, Unleashed and Unaccountable: The FBI’s Unchecked Abuse of Authority, makes clear, the reason FBI agents can engage in such suspicionless intelligence collection and mapping efforts is due to changes to the bureau’s own internal investigative and operational guidelines, known as the Domestic Investigations and Operations Guide (DIOG), in 2008. While FBI agents are not allowed to engage in intelligence collection and investigation based “solely” on race, the DIOG provides significant wiggle room.

According to the DIOG, FBI agents are authorized to “identify locations of concentrated ethnic communities in the Field Office’s domain, if these locations will reasonably aid in the analysis of potential threats and vulnerabilities, and, overall, assist domain awareness for the purpose of performing intelligence… Similarly, the locations of ethnically-oriented businesses and other facilities may be collected.” Note the use of “potential” – that’s a gaping loophole. To engage in intelligence gathering, the FBI doesn’t have to suspect actual wrongdoing; it merely has to decide that wrongdoing might be possible. The door to abuse is wide open.

One answer to this problem is for the attorney general to revise the Justice Department’s guidance regarding the use of race by federal law enforcement to explicitly ban racial, religious, and ethnic profiling in the FBI’s intelligence and investigative activities. Right now, that kind of biased profiling is prohibited in every context – because it’s wrong, ineffective, and a waste of resources – except for national security and at our borders. That’s another gaping loophole.

Given existing FBI authorities, there’s little reason for affected communities to trust that a Trojan Horse won’t be rolled into their midst when an FBI agent attends one of their gatherings. But no one should have to worry that an outstretched FBI hand of outreach and a friendly face are really a guise for domestic spying. And surely FBI agents who understand the genuine need to build trust with communities find their own efforts fettered when they are met with justifiable suspicion.

It’s time for the attorney general to alleviate these legitimate concerns and change the rules that permit these discriminatory practices once and for all.

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