A Government of Wolves: The Emerging American Police State

by Whitehead, John W.

  J. Edgar Hoover (FBI Gallery)

  Established in 1908 by President Theodore Roosevelt, the FBI started out as a small task force assigned to deal with specific domestic crimes, its first being to survey houses of prostitution in anticipation of enforcing the White Slave Traffic Act. Initially quite limited in its abilities to investigate so-called domestic crimes, the FBI has dramatically expanded in size, scope, and authority over the course of the past century.

  Today, the FBI employs more than 35,000 individuals and operates more than 56 field offices in major cities across the U.S., as well as 400 resident agencies in smaller towns, and more than 50 international offices. In addition to their "data campus," which houses more than 96 million sets of fingerprints from across the United States and elsewhere, the FBI is also, according to The Washington Post, "building a vast repository controlled by people who work in a top-secret vault on the fourth floor of the J. Edgar Hoover FBI Building in Washington. This one stores the profiles of tens of thousands of Americans and legal residents who are not accused of any crime. What they have done is appear to be acting suspiciously to a town sheriff a traffic cop or even a neighbor."276

  The agency's reach is more invasive than ever. This is thanks, no doubt, to its nearly unlimited resources (its budget for fiscal year 2012 was $7.9 billion277), the government's vast arsenal of technology, the interconnectedness of government intelligence agencies, and information sharing through fusion centers. The latter are data collecting intelligence agencies spread throughout the country which constantly monitor communications (including those of American citizens), meaning everything from Internet activity and web searches to text messages, phone calls, and emails.

  Neutralizing Dissidents

  It was during the social and political upheaval of the 1960s, however, that the FBI's transformation into a federal policing and surveillance agency really began, one aimed not so much at the criminal element but at anyone who challenged the status quo– namely, those expressing anti-government sentiments. According to J. Edgar Hoover, the FBI's first and most infamous director, the United States was confronted with "a new style in conspiracy– conspiracy that is extremely subtle and devious and hence difficult understand... a conspiracy reflected by questionable moods and attitudes, by unrestrained individualism, by nonconformism in dress and speech, even by obscene language, rather than by formal membership in specific Organizations."278

  Martin Luther King Jr.

  (Dick DeMarsico/World Telegram & Sun)

  Among those most closely watched by the FBI during that time period was Martin Luther King Jr., a man labeled by the FBI as the "most dangerous and effective Negro leader in the country."279 With wiretaps and electronic bugs planted in his home and office, King was kept under constant surveillance by the FBI from 1958 until his death in 1968, all with the aim of "neutralizing King as an effective Negro leader."280 King even received letters written by FBI agents suggesting that either he commit suicide or the details of his private life would be revealed to the public.281 The FBI file on King is estimated to contain 17,000 pages of materials documenting his day-to-day activities. Incredibly, nearly fifty years later, the FBI maintains a stranglehold on information relating to this "covert" operation. Per a court order, information relating to the FBI wiretaps on King will not be released until 2027.

  John Lennon, the ex-Beatle, was another such activist targeted for surveillance by the FBI. Fearing Lennon might incite antiwar protests, the Nixon administration directed the FBI to keep close tabs on the ex-Beatle, resulting in close to 400 pages of files on his activities during the early 1970s. But the government's actions didn't stop with mere surveillance. The agency went so far as to attempt to have Lennon deported on drug charges. As professor Jon Wiener, a historian who sued the federal government to have the files on Lennon made public, observed, "This is really the story of F.B.I. misconduct, of the President using the F.B.I, to get his enemies, to use federal agencies to suppress dissent and to silence critics."282

  Violating the Law

  Unfortunately not even the creation of the Intelligence Oversight Board (IOB) by President Ford in 1976 could keep the FBI's surveillance activities within the bounds of the law. Whether or not those boundaries were respected in the ensuing years, they all but disappeared in the wake of the 9/11 attacks. This was true, especially with the passage of the USA Patriot Act, which gave the FBI and other intelligence agencies carte blanche authority to investigate Americans suspected of being anti-government. While the FBI's powers were being strengthened, President George W Bush dismantled the oversight capabilities of the IOB, which was supposedly entrusted with keeping the FBI in check.

  Even Barack Obama, a vocal critic of the Bush policies, failed to restore these checks and balances on the FBI. In fact, the Obama administration went so far as to insist that the FBI may obtain telephone records of international calls made from the United States without any formal legal process or court oversight. This rationale obviously applies to emails and text messages, as well.

  Little wonder, then, that FBI abuses keep mounting. A 2011 report by the Electronic Frontier Foundation revealed that since 9/11 the FBI has been responsible for at least 40,000 violations of the law. Most of the violations dealt with "internal oversight guidelines," while close to one-third were "abuse of National Security Letters," and almost one-fifth were "violations of the Constitution, FISA, and other legal authorities."283

  Created in the 1970s for espionage and terrorism investigations, National Security Letters (NSL) allow the FBI to bypass the Fourth Amendment's requirement of a court-sanctioned search warrant by allowing an agent to demand information merely on his say-so. The NSLs were originally intended as narrow exceptions in consumer privacy law, enabling the FBI to review in secret the customer records of suspected foreign agents. However, they have since been used for clandestine scrutiny of American citizens, U.S. residents, and visitors who are not alleged to be terrorists or spies.

  As journalist Barton Gellman noted in The Washington Post, "The FBI now issues more than 30,000 national security letters a year, a hundredfold increase over historic norms. The letters–one of which can be used to sweep up the records of many people–are extending the bureau's reach as never before into the telephone calls, correspondence and financial lives of ordinary Americans."284 It has since been revealed that the FBI issued more than 140,000 national security letters between 2003 and 2005, many involving people with no obvious connections to terrorism. Some of the FBI's clandestine surveillance on U.S. residents lasted for as long as eighteen months at a time without a search warrant, proper paperwork, or oversight.285

  Pursuing Peace Activists

  In many cases, those targeted by the FBI are ordinary American citizens doing nothing more than exercising their First Amendment right to free speech by criticizing the government or engaging in nonviolent, peaceful protest activities. As Michael German, a former FBI agent, observed, "You have a bunch of guys and women all over the country sent out to find terrorism. Fortunately, there isn't a lot of terrorism in many communities. So they end up pursuing people who are critical of the government."286

  For example, on September 24, 2010, FBI agents raided the homes of five peace activists in the Minneapolis area. The agents filtered through all of the possessions in the activists' homes, seizing computers and cell phones, as well as other documents. An attorney for those targeted describes his clients–who include an activist-minded couple that sells silkscreened baby outfits and other clothes with phrases like "Help Wanted: Revolutionaries"–as "public non-violent activists with long, distinguished careers in public service, including teachers, union organizers and antiwar and community leaders."287

  The activists targeted in the Minneapolis raid had been members in the antiwar and labor communities for many years.288 Other targets of bureau surveillance, according to the New York Times, have included antiwar activists in Pittsburgh, animal rights advocates in Virginia, and liberal Roman Catholics in N
ebraska. "When such investigations produce no criminal charges," notes the Times, "their methods rarely come to light publicly"289

  One investigation that produced no charges but did come to light, thanks to a Freedom of Information Act request, focused on Scott Crow, a relatively obscure political activist who has been the object of intense surveillance by FBI counterterror-ism agents.

  Scott Crow (Todd Sanchioni)

  At a massive 440 pages, Crow's FBI file speaks volumes about the way in which the government views the American people as a whole–as potential threats to national security–not to mention what it says about the FBI's complete disregard for the Fourth Amendment. Over the course of at least three years, Crow had agents staking out his house; tracking the comings and goings of visitors; monitoring his phone calls, mail, and email; sifting through his trash; infiltrating his circle of friends; and even monitoring him round the clock with a video camera attached to a phone pole across the street from his house.290

  Given that no criminal charges were ever levied against Crow, it might appear that the agency went overboard in its efforts to monitor his activities. However, as we are discovering, such surveillance–even in the absence of credible evidence suggesting wrongdoing–is par for the course. For the federal government to go to such expense (taxpayer expense, that is) and trouble over a political activist, in particular, might seem rather paranoid. However, that is exactly what we are dealing with–a government that is increasingly paranoid about having its authority challenged and determined to discourage such challenges by inciting fear in the American people.

  Make-Work Projects

  The FBI has made a practice of singling out outspoken critics of the government for scrutiny (especially peace activists), attempting to assign them terrorist ties, and continuing the investigations long past the point at which they were found not guilty of having committed any crimes.

  The question that must be asked is why. Why is the government expending so much energy on a relatively small group of peace and antiwar activists whose First Amendment activities comprise the totality of their "suspicious" behavior? Having acquired all of these new tools and powers post-9/11, of course the government wants to hold onto them and what better way to do so than by using them to ferret out "potential" threats.

  This is what is described in government circles as a "make-work" project. A prime example of this occurred in 2002 when the FBI dispatched a special agent, armed with a camera, to a peace rally to search for terrorism suspects who might happen to be there, just to "see what they are doing."291 The protest was sponsored by the Thomas Merton Center, an organization dedicated to advocating peaceful solutions to international conflicts,292 and was composed primarily of individuals distributing leaflets.293 The Office of Inspector General, in its report on FBI surveillance of domestic organizations, characterized the task provided to the special agent assigned to the Merton protest as a "make-work" project.294

  Reversing the Burden of Proof

  It gets worse. In late 2009 it was revealed that the FBI was granting its 14,000 agents expansive additional powers that include relaxing restrictions on a low-level category of investigations termed "assessments." This allows FBI agents, much like secret police, to investigate individuals using highly intrusive monitoring techniques, including infiltrating suspect organizations with confidential informants and photographing and tailing individuals,295 without having any factual basis for suspecting them of wrongdoing.296 (Incredibly, during the four-month period running from December 2008 to March 2009, the FBI initiated close to 12,000 assessments of individuals and organizations, and that was before the rules were further relaxed.)297

  These newest powers, detailed in the FBI's operations manual, extend the agency's reach into the lives of average Americans and effectively transform the citizenry into a nation of suspects, reversing the burden of proof so that we are now all guilty until proven innocent. Thus, no longer do agents need evidence of possible criminal or terrorist activity in order to launch an investigation. Now, they can "proactivefy" look into people and organizations, as well as searching law enforcement and private electronic databases without making a record about it, conducting lie detector tests, searching people's trash, and deploying surveillance teams.

  The point, of course, is that if agents aren't required to maintain a paper trail documenting their activities, there can be no way to hold the government accountable for subsequent abuses. Moreover, as an FBI general counsel revealed, agents want to be able to use the information found in a subject's trash or elsewhere to pressure that person to assist in a government investigation.298 Under the new guidelines, surveillance squads can also be deployed repeatedly to follow "targets," agents can infiltrate organizations for longer periods of time before certain undisclosed "rules" kick in, and public officials, members of the news media or academic scholars can be investigated without the need for extra supervision.

  All of this was sanctioned by the Obama administration, which, as the New York Times aptly notes, "has long been bumbling along in the footsteps of its predecessor when it comes to sacrificing Americans' basic rights and liberties under the false flag of fighting terrorism" and now "seems ready to lurch even farther down that dismal road than George W. Bush did."299 In fact, this steady erosion of our rights started long before Bush came into office. Indeed, it has little to do with political affiliation and everything to do with an entrenched bureaucratic mindset–call it the "Establishment," if you like–that, in its quest to amass and retain power, seeks to function autonomously and independent of the Constitution.

  The Law of the Instrument

  What we are experiencing with the FBI is a phenomenon that philosopher Abraham Kaplan referred to as the law of the instrument.300 Or to put it another way: to a hammer, everything looks like a nail. Unfortunately, in the scenario that has been playing out in recent years, we have all become the nails to the government's hammer. After all, having equipped government agents with an arsenal of tools, weapons, and powers with which to vanquish the so-called forces of terror, it was inevitable that that same arsenal would eventually be turned on the citizenry.

  CHAPTER 14

  Living in Oceania

  "We are taking a giant leap into the unknown, and the consequences for ourselves and our children may be dire and irreversible. Some day, soon, we may wake up and find we're living in Oceania."301,–CHIEF JUDGE ALEX KOZINSKI, Ninth Circuit Court of Appeals, (voicing his discontent with the Ninth Circuit Court of Appeals' ruling in United States v. Pineda-Moreno, which declared the warrantless use of a GPS device by police to be constitutional]

  Having outstripped our ability as humans to control it, technology, while useful and beneficial at times, seems to be turning into our Frankenstein's monster. Delighted with technology's conveniences, its ability to make our lives easier by doing an endless array of tasks faster and more efficiently, we have given it free rein in our lives with little thought to the legal or moral ramifications of doing so. Thus, we have no one but ourselves to blame for the fact that technology now operates virtually autonomously according to its own invasive code. It respects no one's intimate moments or privacy and is impervious to the foibles of human beings and human relationships. And with the proliferation of the police as conjoined with the FBI and other intelligence agencies, everyone–whether innocent or not–is now a suspect, much like living in Orwell's Oceania where Big Brother watched everyone.

  Technology, thus, while providing benefits, has negatives which most are willing to overlook. For example, consider how enthusiastically we welcomed Global Positioning System (GPS) devices into our lives. We've installed this satellite-based technology, which is funded and operated by none other than the U.S. Department of Defense,302 in everything from our phones to our cars to our pets. Yet by ensuring that we never get lost, never lose our loved ones, and never lose our wireless signals, we also made it possible for the government to never lose sight of us, as well. Indeed, while many Americans ar
e literally lost without their cell phones and GPS devices, they have also become ubiquitous conveniences for law enforcement agencies, which use them to track our every move.

  GPS Devices

  In January 2012 the U.S. Supreme Court issued a unanimous 9-0 ruling303 in United States v. Jones, declaring that police must get a search warrant before using GPS technology to track criminal suspects. The ruling arose out of a September 2005 incident in which police, lacking a valid search warrant, placed a GPS device on the undercarriage of Antoine Jones' Jeep while it was parked in a public lot in Maryland. Jones, the co-owner of a nightclub in Washington, D.C., was suspected of being part of a cocaine-selling operation.

  Every day–24 hours a day, seven days a week–for four weeks, the police used the GPS device to track Jones' movements and actions. Based upon the detailed information they were able to obtain about Jones' movements (including a trip to a Maryland stash house in which police reportedly found cocaine, crack, and $850,000 in cash), on October 24, 2005, police arrested and charged Jones with conspiring to distribute drugs. Jones was later convicted and sentenced to life in prison.

  As the case made its way through the courts, the Obama Administration defended the actions of the Maryland police, insisting that GPS devices have become a common tool in crime fighting and that a person traveling on public roads has "no reasonable expectation of privacy" in his movements. In his ruling against such an unwarranted use of a tracking device by government officials, Judge Douglas H. Ginsburg of the District of Columbia Court of Appeals declared:

  It is one thing for a passerby to observe or even to follow someone during a single journey as he goes to the market or returns home from work. It is another thing entirely for that stranger to pick up the scent again the next day and the day after that, week in and week out, dogging his prey until he has identified all the places, people, amusements, and chores that make up that person's hitherto private routine ... A reasonable person does not expect anyone to monitor and retain a record of every time he drives his car, including his origin, route, destination, and each place he stops and how long he stays there; rather, he expects each of those movements to remain disconnected and anonymous.304