No Matter Who Trump Nominates to Head the FBI, Congress Must Engage in True Oversight

Constitution in Crisis :: June 2017
June 1, 2017
The White House
Senators push Justice Department nominee for answers on secret law
June 1, 2017

The FBI has had its share of directors who bask in the limelight, drawing attention away from serious problems built into the agency. From Hoover to Comey, the men at the top of the FBI like to project an image of patriotism, heroism, and integrity while their agency finds ways to skirt the Fourth Amendment and disrespect the First.  

The FBI is “an agency that embodies domestic authoritarianism more than any other,” and Congress recognized its awesome powers and instituted a few reforms in the 1970’s after the COINTELPRO program was uncovered. Those reforms were meager, and have largely been undone (Defending Rights & Dissent’s Chip Gibbons outlines that history in a recent article for Jacobin), but Congress still has the authority and the responsibility to conduct vigorous oversight of the FBI.

And that brings us to the Senate Judiciary confirmation hearings of whomever Trump nominates to become director of the FBI. The hearings present a great opportunity, Emily Berman, Defending Rights & Dissent Board member, argues in Just Security. But only if members of the committee resist the temptation to focus only on Russia.

The question of Trump’s associates’ ties to Russia must be answered and appropriate action must be taken if evidence of impropriety surfaces. But there are myriad systemic, persistent concerns about the FBI’s operations, having nothing to do with President Trump or with Russia, that civil libertarians have been trying to place on the legislative agenda for years.  Confirmation hearings for a new Director provide a unique chance to draw both the Senate and the public’s attention to these issues.

And what are those systemic concerns? Primary for us is what Berman calls “the FBI’s expansive surveillance authorities” which have been used time and again to monitor and chill First Amendment protected activity.

While President Trump’s call for surveillance of mosques and the creation of a “Muslim registry” sparked outrage during the campaign, the FBI is already way ahead of him.  The Bureau regularly sends unercover agents or confidential informants into the Muslim community, including into mosques, to gather information about American Muslims.  Sometimes those agents or informants go further, hounding  members of the Muslim community to join in their (nonexistent) terrorist plots in order to net so-called “terrorists” for prosecution.  Whether the individual involved ever would have considered engaging in violence absent the FBI’s encouragement is not a question the Bureau seems to ask.

Both Gibbons and Berman remind us that the FBI never has been an apolitical agency, and that it has often used its authorities against dissenters and minorities. It’s up to Congress to rein it in. They can start at the upcoming confirmation hearing.

Further reading:

Never Waste A Good Crisis, FBI Edition
Emily Berman, Just Security

The Imperial Bureau
Chip Gibbons, Jacobin

The FBI Is Not Your Friend
Branko Marcetic, Jacobin

In the Wake of the Comey Firing, Don’t Forget the Violence of the FBI Itself
Flint Taylor, Truthout

Do You Drink? Work Odd Hours? The FBI Says You Could Be An “Insider Threat”
Jason Leopold, Buzzed News

Republicans and Democrats are both wrong about leaks from intelligence agencies
Julian Sanchez, Washington Post