No Commitment On Mosque Surveillance, Muslim Registry, Racial or Religious Profiling, or Police Accountability From Wray. But He’ll Be Confirmed Anyway

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Members of the Senate Judiciary Committee believe that Trump’s nominee for FBI Director, Christopher Wray, did not pledge his loyalty to Donald Trump, and will not sweep the Russia investigation under the rug. And apparently very little else matters to them.

The Committee unanimously approved Wray’s confirmation today, clearing the way for full Senate confirmation before the August recess.

Unlike members of the committee, we were not satisfied with Wray’s testimony at his confirmation hearing, and his response to additional Questions For the Record (QFRs) posed by Democratic members of the Judiciary Committee do little to allay those concerns.

As is often the case in these confirmation hearings, members of the Senate are forgiving of forgetfulness and inability to recall important incidents and conversations, as well as general ignorance on issues that are vital to the job the nominee is applying for.

Wray told Senators that doesn’t know what the FBI is up to with regard to terrorist recruitment, isn’t familiar with how hate crime statistics or police use-of-force incidents are reported, doesn’t know much about the FBI’s budget, can’t comment on a host of matters including voter fraud, anti-Muslim campaign rhetoric, and unabashedly admitted that he hasn’t even reviewed the Attorney General Guidelines for FBI Domestic Operations (the rulebook that governs FBI investigations) recently.

FBI Investigations

Senator Hirono submitted some detailed QFRs based on questions recommended by Defending Rights & Dissent, to try to understand the role race, ethnicity, religion and national origin will be used as factors to open investigations (described as ‘assessments’ in the AG Guidelines). But Wray dodged the questions:

The Attorney General’s Guidelines for Domestic FBI Operations give FBI agents broad discretion, and allow race, religion, national origin, and First Amendment activity to be used as factors to justify scrutiny.

  1. Do you think that individuals of a particular race, ethnicity, religion, or national origin are more dangerous or more likely to be extremist? If so, please identify which races, ethnicities, religions, or national origins those are.
  2. In making investigative decisions, when is it appropriate to take race, ethnicity, religion, or national origin into account? When is it appropriate to monitor individuals on the basis of these characteristics?
  3. Do you believe that the current Guidelines strike the right balance between preventing crime and terror and protecting civil liberties?
  4. Given the potential for abuse under the Guidelines, would you be willing to strengthen their protections to prevent assessments from being used in a discriminatory manner or as a political tool?

RESPONSE: I do not believe that individuals of a particular race, ethnicity, religion, or national origin are more dangerous or more likely to be “extremists.” In making investigative decisions, the appropriateness of taking certain characteristics into account for monitoring individuals depends on the particular facts and circumstances. I have not reviewed the Attorney General’s Guidelines in recent years and am not up to speed on how those Guidelines are being followed presently. I, therefore, am not in a position to comment on whether any changes to the Guidelines should be considered. (Hirono question 13)

 

Torture

Since Wray was at the DOJ when the Bush Administration tortured detainees, there were many questions about his role during that time, and his current views on the use of torture. In his hearing and in his QFR responses he said he did not recall “having substantive involvement” in reviewing or approving any of the OLC torture memos (Feinstein questions 2-5).  But he did state several times for the record that “I believe torture is wrong, unacceptable, illegal, and ineffective” and said he would continue the FBI policy prohibiting torture. He also committed to reading the Senate torture report.

Surveillance of mosques and Muslim-American civil society leaders

Wray was given several opportunities to state categorically that he would not approve the surveillance of Mosques as Trump called for during the campaign. 

During the Presidential campaign, President Trump repeatedly called for surveillance of mosques in the United States.

  1. How would you respond to an instruction from the White House or Justice Department to conduct general surveillance of mosques unrelated to a specific, ongoing investigation, or to conduct assessments or investigations of Muslim-American civil society leaders?

RESPONSE: I cannot speculate on a hypothetical question about how I would respond to such a request. As in all matters, I would look at the individualized facts of the situation and follow the law and any policies of the FBI and the Department in determining what the next, appropriate steps might be.

  1. How would you instruct FBI agents to respond?

RESPONSE: Please see my response to Question No. 8(a) above.  (Leahy question 8)

And from Senator Coons:

Based on your knowledge, do you believe that religion is a reliable indicator of the national security risk an individual poses?

RESPONSE: No

Will you commit to instructing the FBI that the agency should not surveil a house of worship unless there is probable cause of criminal activity?

RESPONSE: I cannot speculate on a hypothetical question about how I would respond to such a request. As in all matters, I would look at the individualized facts of the situation and follow the law and any policies of the FBI and the Department. (Coons question 4)

Muslim Registry

Wray was given the opportunity to disavow and condemn Trump’s Muslim registry, and pledge that the FBI would not participate. Instead, he gave himself wiggle room:

You stated during your hearing that you would not support the creation of a Muslim registry. If such a registry were created by another government agency, what would you do to prevent the use of FBI data in such a registry?

RESPONSE: As I testified, religious freedom has always been very important to me, and I would want to pay close attention to any program that seemed to raise the kinds of concerns you note. I would look at the individualized facts of the situation and follow the Constitution, the law, and any policies of the FBI and the Department. (Hirono question 15)

Police Accountability

Although police shootings have been in the news a bit lately, as has the increase in hate crimes, Wray didn’t feel he needed to brush up on the issues before his confirmation hearing, or even before submitting his written answers to QFRs. And, he would not  commit to prioritizing data collection efforts aimed at increasing accountability for law enforcement. Senator Hirono took the opportunity to submit questions, based on recommendations provided by OpenTheGovernment and civil rights groups, on the FBI’s collection of data on hate crimes and police use-of-force incidents.

Senator Hirono asked Mr. Wray what steps he would take to improve the FBI’s information collection programs on officer involved shootings and hate crimes, and whether he would prioritize such efforts. Mr. Wray said that, while he shared “concern about the need for accurate data to better help us understand the scope of the hate crimes issues,” he was “not yet familiar with the methods by which law enforcement agencies report hate crimes,” or the DOJ’s Bureau of Justice Statistics’ work in this area. He provided no answer in response to the question on use-of-force data.

The fact that Mr. Wray offered no guarantee that he would prioritize data collection, and failed to respond to the question on officer-involved shooting data, raises serious concerns.

Guantanamo

Although we have held detainees at Guantanamo for 5 years, and the prison opened while Wray was at the DOJ, he dodged questions about the rights of detainees held at Guantanamo Bay, and could not say whether he supports using Guantanamo for new terrorism suspects. “I have not studied this issue,” he told Senator Feinstein. (Feinstein questions 8 and 9)



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