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Former FBI Agent Mike German Talks About the NSA

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November 5, 2013

The interview below, in which Faith Braverman speaks to ACLU Senior Policy Counsel Michael German, was first published by The Daily Caller.

Mike German is a 16-year veteran of the FBI, where he served as a special agent in domestic terrorism. His work led him to resign in 2004 after the implementation of the 9/11 Commission’s reforms. He now works for the ACLU, and shared his experiences upholding his oath with The Daily Caller.

Was your work for the FBI what made you decide that their practices weren’t right?

Absolutely. I had been working for the FBI for 16 years and domestic terrorism for 12 years. What I understood was that the rules that are designed to protect privacy also help the government focus on people who are real threats. It works both ways. This idea that we trade our privacy for more security is just false. Spying on you won’t help the government find a terrorist. It’s a waste of resources, a waste of effort that also violates our rights.

What steps did you take to combat the abuse of civil liberties?

I tried to challenge the system from within, but they don’t like that. They made it very uncomfortable, so I finally realized it was time to work on the outside. I went to Congress and Sen. [Chuck] Grassley and Sen. [Patrick] Leahy, and now I work for the ACLU.

Was there a specific incident that occurred that made you want to leave the FBI?

There was a specific case that I was working on, and I’m still not allowed to talk about it in great detail. But it was a case where, again, the way that the government was putting out why they didn’t connect the dots on 9/11 was they didn’t have enough collection before the event. But as the 500-page book by the 9/11 commission shows, they actually had an awful lot information. It’s the mismanagement that causes the problem and it’s that mismanagement that leads not just to intelligence failures, but to violations of rights. Trying to point that out — that it’s really how the government manages its information — is really the important thing for Congress to focus on.

What do you have in mind specifically to manage information better?

Focus security resources where you have evidence of wrongdoing, and use methods that are transparent and accountable. Name another government program where a lack of accountability leads to effective outcomes – there isn’t one. The intelligence community spends billions of dollars and has no evidence to show its methods are effective. They repeatedly fail, but the response is always to give them more authority and less oversight. No wonder they keep failing. So much of what the intelligence community is doing now is based on myths. The 9/11 failures had nothing to do with criminal investigations and everything to do with mindless intelligence collection (in fact the CIA prevented FBI agents investigating the Cole bombing of getting evidence they sought, leading one agent to write that “one day someone will die” because of their obstruction) yet the reaction was to give more resources to expand intelligence initiatives rather than criminal investigations. Criminal investigations, based on reasonable suspicion and probable cause, supported by criminal prosecutions are effective and have the added benefit of strengthening the rule of law and the legitimacy of government counterterrorism measures.

Multiple terrorists have still reached their targets during the Obama administration. Why do you think people still defend the NSA after their practices clearly haven’t worked?

One of the things that I hear a lot is that “Well, nothing as bad as 9/11 has happened since 9/11.” But that argument would have worked on Sept. 10, 2001. They would have said, “Nothing’s happened in a while, things must be going well.” But what makes things go well is when there’s public accountability and to make sure this is actually what the government is doing. Snowden’s information shows this is not just a violation of our rights, but a waste of resources. Our founders recognized the way to make a safe, secure and free nation, and we need to go back to that.

Can you give a few examples for your assertion that the Bill of Rights is a good guide for police work?

Yes, I actually wrote a book about this called “Thinking Like a Terrorist.” Basically, the Constitution and the Bill of Rights works to improve security by focusing law enforcement resources on criminal activity, rather than activity the police just don’t like, and by limiting the use of techniques that tend to produce unreliable evidence. By protecting behaviors that governments often find threatening, like political organizing by oppositional groups, the First Amendment keeps police away from activities that often get them distracted from crime prevention. By limiting their use of intrusive tools to cases where they have evidence of wrongdoing, verified by an independent magistrate, the Fourth Amendment forces police to focus their efforts appropriately and compels accountability, which makes the police more efficient and effective. By prohibiting coercion, the Fifth Amendment limits false confessions. By requiring counsel, the Sixth Amendment ensures that contrary evidence is discovered and presented to prevent false convictions, which would allow the real bad guys to go unpunished. All of this makes the police more effective, but the real strength of these tools is that they give the citizenry confidence in the legitimacy of police activities, which makes them more likely to cooperate and support government initiatives. Moreover, the lack of these protections make the citizenry angry, leading to less cooperation with the police, or even violence against them.

I often tell a story about a case I worked on as an undercover agent in an anti-government militia group in Washington state. It ended with a six-week trial that was attended by a lot of people who supported the militia group ideologically. One man who was an elder in the group (but didn’t know the defendants and wasn’t involved in the investigation) came up to me after the trial ended, but before the verdict was returned, and asked to shake my hand. He said he sat through the entire trial and was convinced that these defendants would have hurt someone, which would have hurt his movement, so he wanted to thank me for stopping them. Here was someone predisposed to hate the government, thanking the undercover agent who infiltrated the movement because our transparent and open criminal justice process allowed him to see the evidence, appropriately challenged in an adversarial process, and become convinced against his prejudices that the defendants were guilty. That’s how a government demonstrates its legitimacy, which builds a stronger and more stable democracy.

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