Manufacturing Hysteria
Page 38
Government officials—including those whose principal duty is to enforce the law—have violated or ignored the law over long periods of time and have advocated and defended their right to break the law.61
In light of the committee’s revelations, President Gerald Ford instructed Attorney General Edward Levi to formulate new guidelines that would limit governmental surveillance. Levi took his cue from Harlan Fiske Stone’s 1924 curbs on the FBI’s forerunner, stressing that the new “domestic security guidelines proceed from the proposition that Government monitoring of individuals or groups because they hold unpopular or controversial political views is intolerable in our society.”62 Echoing Stone’s restraints, the 1976 guidelines placed strict limitations on the FBI, restricting the bureau’s investigative authority to criminal activity, forbidding the investigation of individuals and groups not advocating violence, and prohibiting the disruption of groups or the discrediting of individuals legally exercising their First Amendment rights. “All investigations undertaken through these guidelines shall be designed and conducted so as not to limit the full exercise of rights protected by the Constitution and laws of the United States.”63 Equally important, the Levi guidelines provided a structure to safeguard these limits on the bureau’s power.
In keeping with the new rules, the FBI ended its thirty-eight-year-long investigation of the Socialist Workers Party, which, despite some eight million file entries, had resulted in just one prosecution—thirty-five years earlier, under the Smith Act, in a case that Attorney General Francis Biddle later called a mistake.
The new strictures imposed on the FBI by the Levi guidelines were complemented by similar restraints on the CIA, the NSA, and the other intelligence agencies. The days of manufactured hysteria, governmental scapegoating, rampant surveillance, and secret rule were supposedly at an end.
* In November, the index was broadened to cover anyone whose activities had a bearing on national security, including black nationalists, white supremacists, Puerto Rican nationalists, anti-Vietnam demonstration leaders, and other “extremists.” The following March, the list was renamed the “Agitator Index.”
† He also called for the bureau “to penetrate the Students for Democratic Society [sic] so that we will have proper informant coverage similar to what we have in the Ku Klux Klan and the Communist Party itself” (see Church Committee, bk. 3, p. 484).
‡ Thirty years later, Felt was revealed to be the “Deep Throat” contact who fed the Washington Post reporters Carl Bernstein and Bob Woodward the inside material that broke open the Watergate scandal.
§ This break-in was the group’s only known action, and none of the members has ever been publicly identified.
Epilogue: An Aggressive Assault on Civil Liberties
Significant step forward though they were, the Levi guidelines suffered from the same limitation as Harlan Fiske Stone’s 1924 directives—they were not law. Although the Church Committee recommended legislation, the National Intelligence Reorganization and Reform Act of 1978—which would have established statutory charters for all intelligence agencies, as well as created a director of national intelligence—never made it out of committee in either house of Congress. Accordingly, subsequent administrations were free to modify the Levi guidelines as they pleased.
In fact, not even a decade passed before another attorney general began chipping away at Levi’s standards. In 1983, President Ronald Reagan’s attorney general, William French Smith, broadened the guidelines in several areas. Under Smith’s rules, the FBI was allowed to (1) take notes and photographs of people at public demonstrations without any indication of illegal activity, (2) use informants and infiltrate organizations during preliminary investigations without any reasonable suspicion of illegal activity, and (3) investigate individuals and organizations who advocated illegal activity without any likelihood of such conduct actually occurring. Nevertheless, despite these modifications, the core of the Levi guidelines remained intact.
In a direct breach of the new guidelines, however, the FBI, during Reagan’s presidency, resumed its practice of spying on American citizens engaged in legal political activity. With orders to collect “information on the locations, leadership, and activities of CISPES,” the bureau infiltrated the Committee in Solidarity with the People of El Salvador, an organization opposed to U.S. foreign policy in Central America.1 Although the FBI found no evidence of illegal action, the scrutiny continued for four years, during which time the bureau compiled files on 2,375 individuals and 1,330 additional groups other than CISPES. In the course of these investigations, agents photographed peaceful demonstrations, watched rallies on college campuses, conducted surveillance of churches and church groups, infiltrated countless meetings, inspected trash, collected mailing lists and phone numbers, recorded license plates, and obtained records of longdistance telephone calls. Despite the massive effort, there was not a single criminal charge filed—as had been the case so many times over the years.
A General Accounting Office study of the FBI during the Reagan years reported that between January 1982 and June 1988, the bureau carried out approximately 19,500 terrorism investigations, but in only 12 percent of those cases had the agency actually received any reliable information to indicate that the subject of the investigation was directly involved in terrorist activity.
During President Bill Clinton’s early days in office, nativism underwent a reawakening after a group of radical Muslims detonated a car bomb in the underground parking lot of the World Trade Center in lower Manhattan in February 1993, killing six people and injuring more than a thousand. The FBI quickly established the identities of ten Muslim fundamentalists who were involved in the crime—which was intended to be merely the first in a series of bombings in and around New York City.
Arabs and Muslims had actually been in the FBI’s crosshairs as early as November 1986, when a secret interagency task force known as the Alien Border Control Committee sent the Justice Department a report called “Alien Terrorists and Undesirables: A Contingency Plan.”2 The report accurately listed a number of Arab countries as being likely sources of terrorists, but in a disquieting echo of the scapegoating that occurred during the two world wars, it also proposed the construction of a remote detention camp in Louisiana to hold “alien undesirables” while they awaited deportation.
After the 1993 World Trade Center attack, the FBI zeroed in on alien Arabs and Arab-Americans. Writing in the Georgetown Immigration Law Journal in 1999, Susan Akram reported that FBI and INS agents had conducted widespread investigations of Arab and Arab-American communities in many U.S. cities, including Detroit, Los Angeles, New York, San Francisco, and Tampa. Seeking information that would inform the government about terrorist activities, agents threatened individuals with deportation proceedings against them or their relatives unless they informed on friends, relations, or neighbors.3
When the Alfred P. Murrah Federal Building in Oklahoma City was destroyed by a forty-eight-hundred-pound car bomb on April 19, 1995, in a manner reminiscent of the World Trade Center explosion, suspicion fell first on Middle Eastern terrorists, but law-enforcement agencies quickly determined that the attack had been carried out by homegrown American extremists. Within weeks, the FBI’s director, Louis J. Freeh, told Congress that the Justice Department had agreed to allow the bureau to “reinterpret” the Smith guidelines and initiate an investigation of “a domestic terrorism group if that group advocated violence or force with respect to achieving any political or social objectives,” even without any evidence of an actual or imminent violation of the law.4
It was a slippery slope. Ira Glasser, director of the ACLU, called the new approach a dangerous step backward. “Any time you abandon the idea of a criminal predicate for an investigation, you have to find something else,” he warned. “What would that be? Maybe it’s national origin, maybe race, maybe political beliefs, maybe militant rhetoric. That’s been the history of the F.B.I. which we have come to deplore. When you don’t use a crim
inal predicate, you must find some other proxy that inevitably tramples on constitutional principles.”5
The Oklahoma and New York attacks also led to the passage of the Antiterrorism and Effective Death Penalty Act of 1996.6 Among other provisions, the law further eroded the Levi/Smith guidelines, granting the FBI greater investigative powers, making it illegal to contribute to a group designated a “foreign terrorist organization,” and creating a distinct deportation process for aliens accused of being terrorists. In Terrorism and the Constitution, the Georgetown University law professor David Cole and the director of the Center for Democracy and Technology, James X. Dempsey, labeled the statute “one of the worst assaults on the Constitution in decades,” noting, “It resurrected guilt by association as a principle of criminal and immigration law. It created a special court to use secret evidence to deport foreigners labeled as ‘terrorists.’ It made support for the peaceful humanitarian and political activities of selected foreign groups a crime.”7
Ethnic and religious communities were not the only targeted groups. After the 1999 protests against the World Trade Organization in Seattle, the FBI went after the antiglobalization movement, using many of the same techniques that had been employed in the COINTELPRO operations. “We want to be proactive and keep these things from happening,” the FBI spokesman Gordon Compton told the press.8
Nothing in the premillennial era, however, could have prepared Americans for the far-reaching effects brought about by the events of September 11, 2001.
In the days and weeks following the strikes on the Twin Towers and the Pentagon, there were hundreds of attacks on Arab and Arab-American Muslims and Christians. Several people were murdered, and a number of mosques were attacked. Sikhs, Baha’is, and Hispanics were also targeted.
While President George W. Bush commendably denounced such behavior, saying it represented “the worst of humankind,”9 his administration was at the same time misusing immigration law to round up more than 750 alien Arabs and Muslims and hold them without charges for months, until they could be cleared of any involvement in terrorism before being deported—procedures that Attorney General John Ashcroft defended as “aggressive arrest and detention tactics in the war on terror.”10 A June 2003 report on the arrests by the Justice Department’s inspector general, however, found that many of the detainees were incarcerated on nothing more than suspicion, with no shred of evidence against them.
More than six months after 9/11, Arab and Muslim communities in the United States were still suffering the psychological effects of the aftermath. “Our people are still terrorized,” said Randall Hamud, a Lebanese-American lawyer who defended Arab immigrants arrested after 9/11. “Even those who are naturalized US citizens feel the fear.”11 In a situation that harked back to the plight of German aliens and German-Americans during World War I, of Mexican aliens and Mexican-Americans during the Great Depression and Operation Wetback, and of Japanese aliens and Japanese-Americans after Pearl Harbor, Arab immigrants and Arab-Americans faced political profiling, as their patriotism was now perceived to be inherently suspect and in need of proving. And just as liberals and leftists suffered from self-censorship during the Cold War, the Arab-American community experienced a chilling effect after 9/11. Michel Shehadeh, western regional director of the American-Arab Anti-Discrimination Committee, observed, “Throughout our community people have started to not attend group activities. Membership in organizations has dropped. Subscriptions to publications have dropped. More and more people are changing their names. Lots of students have left the country … It’s very, very sad.”12
Following the example of earlier administrations, but far exceeding those earlier models, the Bush government exploited fears engendered by 9/11 in order to carry out blatant crackdowns on civil liberties and dissent, and usher in a new era of broad-based government spying. The full history of George W. Bush’s presidency will be written in the decades to come, but a quick sketch of those years reveals a White House and Congress bent on repression as the means to achieving an authoritarian agenda.
In October 2001, Congress passed the USA PATRIOT Act, authorizing law-enforcement agencies to share information obtained in criminal investigations with intelligence agencies, including the CIA and NSA, as well as with other federal departments, including the INS, Department of Defense, and Secret Service. The legislation also allows law-enforcement agencies to share—without a court order and with no significant restrictions on subsequent use—intercepted telephone conversations and e-mail communications.
By February 2002, less than six months after 9/11, the ACLU of Northern California reported that “the Bush administration has already launched an aggressive assault on civil liberties in the name of national security: detaining hundreds of foreign-born suspects with little regard for due process, eroding client-attorney privilege, announcing proposals for military tribunals, and rounding up young men based on their national origin.”13
In April, in a misguided effort to reinforce public security, Bush unveiled the Terrorism Information and Prevention System, a program reminiscent of World War I’s American Protective League. Under TIPS, cable technicians, letter carriers, meter readers, ship captains, truck drivers, and other workers were to be responsible for reporting “suspicious” activity to law-enforcement officials. The subsequent outcry over the prospect of Americans spying on one another led Congress to deny funding for the program.*
On May 30, Ashcroft announced that he was scrapping the Levi/Smith guidelines, saying they “have hampered our ability to fight terrorism.”14 The FBI was now authorized to monitor libraries, political groups, religious organizations—including houses of worship—and the Internet.
By then, the National Security Agency was secretly scrutinizing—under a presidential order and without court-approved warrants—the international phone calls and e-mails of hundreds, perhaps thousands, of individuals within the United States. When The New York Times brought the program to light in December 2005, a former senior official in the area of national security law said, “This is really a sea change. It’s almost a mainstay of this country that the N.S.A. only does foreign searches.”15 In April 2010, a federal judge ruled that the program was illegal.
The Bush administration was also conducting—similarly without court-approved warrants or subpoenas—a secret operation that examined the banking transactions of thousands of Americans and others in this country. The program was once again revealed by the Times, which called it another of the administration’s “attempts to break down longstanding legal or institutional barriers to the government’s access to private information about Americans and others inside the United States.”16 The program was instituted as an emergency response to 9/11, but when the Times broke the story in June 2006, what had begun as an “urgent, temporary measure had become permanent nearly five years later without specific Congressional approval or formal authorization.”*
In a throwback to the Vietnam War era, the FBI made a practice of scrutinizing demonstrations against the U.S. occupation of Iraq. A statement by a bureau spokesman sounded a disheartening reprise of past justifications for monitoring peaceful and legal protest: “We’re not concerned with individuals who are exercising their constitutional rights. But it’s obvious that there are individuals capable of violence at these events. We know that there are anarchists that are actively involved in trying to sabotage and commit acts of violence at these events, and we also know that these large gatherings would be a prime target for terrorist groups.”17 Yet a month before this rationalization was offered, an FBI memo stated that the bureau “possesses no information indicating that violent or terrorist activities are being planned as part of these protests.”18 The bureau also spied on other “dissident” groups, including Greenpeace, the People for the Ethical Treatment of Animals, and the ACLU.
The Pentagon also kept track of peace groups and political organizations judged to be hostile to the Bush administration. Beginning in May 2003, a secret program called
Threat and Local Observation Notice—initiated by Deputy Secretary of Defense Paul Wolfowitz—was used to gather information on war protesters. TALON, which was intended to collect unconfirmed “threat information and security anomalies” that might indicate planned terrorist attacks,19 also yielded reports on dozens of peaceful organizations and events, including Truth Project, a small Florida group that set up antimilitary informational tables alongside military recruiters at high schools; a street-theater presentation outside the headquarters of Halliburton in Texas; a Students Against War protest at the University of California, Santa Cruz; and a Veterans for Peace demonstration at New Mexico State University in Las Cruces. All together, the database contained 263 reports on 180 antiwar groups and events
In the 2005 NBC News story that made TALON public, the former Army Intelligence officer Christopher Pyle—whose January 1970 article in The Washington Monthly had blown the whistle on the military’s spying on antiwar and civil rights groups during the Vietnam War era—said, “The documents tell me that military intelligence is back conducting investigations and maintaining records on civilian political activity. The military made promises that it would not do this again.”20 TALON was cut back after the NBC News story was published, and two years later it was terminated.
But TALON was merely one component of a much larger operation called Counterintelligence Field Activity, created by executive order in February 2002 to establish a database that contains information concerning potential terrorist threats against the Department of Defense. The “terrorists” who were monitored under CIFA included gay, lesbian, and bisexual groups at New York University and at the Berkeley and Santa Cruz campuses of the University of California.
Between 2002 and 2006, FBI agents illegally searched more than two thousand telephone records, under the false pretext of nonexistent terrorism “emergencies.” The phone records collected included those of Washington Post and New York Times reporters. The FBI lawyer Patrice Kopistansky tried to alert her superiors, e-mailing them, “We have to make sure we are not taking advantage of this system, and that we are following the letter of the law without jeopardizing national security,” but the illegalities continued for another two years after her warning.21