Tomorrow, the Senate Judiciary Committee will convene a hearing to vet Trump’s nominee to be the 8th director of the FBI. Given the Bureau’s enormous powers, inglorious history, and contradictory mission, the hearing deserves a lot more attention than it is getting.
The FBI is headquartered in a dilapidated building across the street from the Justice Department and a few blocks from the White House. Yesterday we learned that the Trump administration has cancelled the decade long search for a new FBI HQ. The building’s Brutalist architecture, and the fact that it is still named for the conniving, dishonest, and thuggish original Director, J. Edgar Hoover, is ominous.
Not that moving to a new building would have necessarily triggered a new and better FBI, but it’s hard to imagine the Bureau becoming more open and civil liberties minded while still housed in the Hoover building.
The FBI controls the world’s largest biometric database filled with intensely personal data on millions of Americans, many whose only crime is undergoing a background check for work, getting a driver’s license from a cooperating state, or entering this country legally. FBI agents can open so-called assessments into anyone…without any evidence or even suspicion of criminal activity or threat to national security. Assessments permit intrusive investigative techniques, such as tasking a paid informant — often with a criminal background– to befriend the target, and sending undercover agents to question family, friends and employers, and searching through the target’s garbage), and the creation of comprehensive dossier on the individual, which remains in government databases, even if nothing comes of the investigation.
The history of FBI abuses of our civil rights and liberties is long and disturbing, but of particular concern under this administration are episodes including the Bureau’s custodial lists of people to be detained in case of a national “emergency,” the Palmer Raids, COINTELPRO, colluding with the House Un-American Activities Committee to suppress dissent, and more recently, the FBI’s misuse of the Patriot Act and FISA Amendments Act, spying on mosques and activist groups.
The FBI is in charge of investigating hate crimes, and upholding civil rights laws, which requires close relations with communities most likely to be targeted in hate crimes and civil rights violations. But those very communities are subject to targeting, harassment, surveillance and criminalization by the very agency that is supposed to protect them.
It matters who will run the FBI.
At this juncture in its history, the FBI requires an ethical, independent leader who will staunchly defend the Constitution and the rule of law. Mr. Wray is not that leader.
While we are not fans of the FBI, we do recognize that when the Bush Administration turned to torture, agents at the FBI courageously stood against the practice, and refused to participate in CIA-led torture sessions. However, Christopher Wray was not so courageous. While we do not know his full involvement in decisions about torture or his work in approving the Yoo torture memo during his tenure as Assistant Attorney General, the record indicates that he went along to get along, and did not take a stand against torture as FBI agents did.
The agents and other staff at the FBI who stood up against torture deserve a director with a strong moral compass who is as ethical and courageous as they are.
Mr. Wray’s past actions indicate that he will exacerbate the FBI’s unfortunate history of not respecting the rights of Muslims. Under Director Comey, the FBI seems to have walked back its practice of infiltrating Mosques with paid informants facilitating sting operations that often ensnared vulnerable community members in plots they had no capacity to implement absent the leadership, resources, expertise, and encouragement of the informant and undercover FBI agents. The agency has also gradually weeded out trainings that were Islamophobic and inaccurate that taught false ideas about Islam and Muslims and unfounded theories of radicalization.
However, President Trump’s rhetoric and policy proposals cast suspicion on all Muslims without any evidence, and seek to deny basic human and civil rights to people based on their religion. Mr. Wray’s role in the post-9/11 roundup and mass detention of immigrants and disregard for their rights, including encouraging a “communications black out,” obstructing them from communicating with family members and attorneys, indicates that he is unlikely to stand up to Mr. Trump and defend the rights of Muslim community members.
It’s Time for Oversight and Accountability
But perhaps even more important than who leads the FBI, it matters that Congress conduct true oversight and insist not only on being kept informed, but to actually take steps to rein in some of the most easily abused of the FBI’s authorities.
That can’t all be accomplished in one hearing, but members of the Judiciary Committee can lay the foundation for a new era of oversight and accountability, even as the agency remains holed up in its ugly and unforgiving fortress.
Background and Suggested Questions for Christopher Wray Confirmation Hearing, July 12, 2017
FBI use of “Undisclosed participation” to infiltrate Mosques and activist groups.
Background: The FBI has refused to disclose to either the public or Congress the policy governing the FBI’s use of “undisclosed participation” in religious or political groups as an investigative tactic.
Since early 2001, paid informants, FBI agents, and state and local law enforcement agents working through the FBI’s Joint Terrorism Task Forces have infiltrated faith institutions and activist groups with no evidence or even suspicion of criminal activity. Agents and informants have often played the role of agent provocateur, instigating unlawful behavior, often by manipulating young men with developmental or psychological challenges. (See also: Foreign Policy and Washington Post)
Not only have these covert domestic operations remained unaccountable to any independent or judicial review, but the mobilization of civil society in these various sectors has demonstrably suffered as a result. Reports around the country of informants infiltrating mosques, for instance, have dramatically diminished participation by Muslim Americans in faith networks.
As in the past, under COINTELPRO, the use of agents provocateur serves to discredit and undermine political movements, and to vilify members of targeted communities.
How can congress provide adequate oversight without knowing the policy for using “undisclosed participants”?
Should FBI agents or informants be permitted to infiltrate faith groups or activist organizations in the absence of any indication that such organizations, or individual members, are tied to any crime or threat?
What policies will you put in place to ensure that individuals’ First Amendment rights are protected when their place of worship or political group is infiltrated?
FBI assessments and racial and religious profiling
Background:The Attorney General’s Guidelines for Domestic FBI Operations were first promulgated in 1976 in the wake of FBI abuses under COINTELPRO. Since that time, the guidelines have been periodically revised to diminish their protections, most recently and most significantly by Attorney General Michael Mukasey in 2008.
The Mukasey Guidelines vastly expanded the investigatory authority available to agents without any predicating facts or allegations by expanding the Assessment tier of investigative activity. The 2008 Guidelines authorized a number of intrusive investigative techniques during Assessments, including pretext interviews (conducting an interview without disclosing identity as an FBI agent), interviewing members of the public, recruiting and tasking informants to infiltrate groups, physical surveillance not requiring a court order, grand jury subpoenas for telephone or electronic mail subscriber information, and more (Guidelines, pg 19 – 20).
According to data made public in 2011, only about 4% of assessments yield enough evidence to justify preliminary or full investigations. From December 2008 to March 2009, the FBI initiated 11,667 assessments, which led to only 427 preliminary or full investigations, according to the New York Times. Over a two year period from March 2009 to March 2011, FBI agents opened 82,325 assessments, which led to 3,315 preliminary or full investigations, also according to the New York Times and a 2013 Congressional Research Service Report (pg 12). Recent data is scarce, although last year, the New York Times reported that “in recent years, the F.B.I. has averaged 10,000 assessments annually.”
The Guidelines give FBI agents broad individual discretion to investigate anyone in the U.S. using these techniques without reasonable suspicion of wrongdoing, and without requiring supervisory approval or oversight. They also allow race, religion, national origin, or First Amendment protected activity to be used as a factor, among others, justifying scrutiny (See Durbin 10/03/08). Given the pressure on agents to identify unknown threats to national security before they emerge, such unchecked power invites abuse, including inappropriate profiling according to race, religion, national origin or speech advocating a particular point of view. (Also see Associated Press on NYPD surveillance)
Given past FBI abuses during COINTELPRO, and the potential for abuse under the current guidelines, would you be willing to strengthen protections in the guidelines to prevent overzealous agents from using assessments as a political tool?
Do you believe that the current Guidelines strike the right balance between aggressive terror-prevention efforts and civil liberties protections?
Do you believe that the FBI should be permitted to gather and keep in its databases information about innocent Americans? If not, what reforms would you undertake to minimize data collected during assessments which turn up no evidence of wrongdoing?
When do you think it is appropriate to take race, religion, national origin, or political views into account when making investigative decisions?
Are assessments an efficient use of limited resources?
FBI Training and Racial and Religious Profiling:
Background:The FBI has used trainers and training materials that many consider to be Islamophobic (Wired and Washington Monthly). In 2011, the FBI committed to discontinuing the use of these materials and trainers, although as recently as 2016, agents were subjected to problematic and inflammatory lessons that misrepresented Islam and declared that all Muslims are radicalized or soon will be (Daily Beast).
It is unclear whether the agents who underwent the improper training have all been adequately re-trained. Agents relying on improper training opened assessments, created dossiers and other intelligence materials that are unreliable, but the data is still in FBI files.
What steps will you take to ensure that FBI agents are not subjected to training that teaches a bigoted view of Islam or any other religion?
How will you ensure that all agents who have been improperly trained are retrained?
Will you commit to reviewing dossiers that may have been improperly created and purging data collected improperly?
FBI role in immigration enforcement and development of a “Muslim Registry”
Background: At the Assessment level, recommended baseline data to be collected and added to FBI databases includes, at a minimum: name, address, phone, email address, US person status, country of birth, travel history, place of work, type of employment, whether the person possesses, or is licensed to possess firearms, and other significant personal information (according to an internal FBI document released through FOIA).
According to a CRS report, “As written, the guidelines allow for the collection of information about ethnic or racial communities and justify the gathering of such information for proactive purposes. The DIOG states that it should be done if it ‘will reasonably aid the analysis of potential threats and vulnerabilities, and, overall, assist domain awareness for the purpose of performing intelligence analysis.’” (CRS report pg 13; DIOG pg 4-13)
Would you allow the use of FBI data to create a Muslim registry? How would you prevent the use of FBI data in such an endeavor?
The FBI and activists
Background:The FBI has been found over and over to have infiltrated domestic advocacy groups or spied on activists, created dossiers and entered names into terrorist lists, without any indication of criminal activity.
FBI Questions Muslims in Eight States Before 2016 Election (Washington Post)
FBI Contacting Water Protectors (Indian Country Today)
FBI violated its own rules in spying on Keystone XL pipeline activists (Guardian)
FBI and DHS surveillance of Black Lives Matter protesters (Dissent Newswire)
FBI Surveillance of School of the Americas Watch, which lasted a decade despite no evidence of criminal or violent behavior or intentions
DOJ IG report on investigations of certain domestic advocacy groups (it’s important to note that the investigations discussed in the report were undertaken under the Ashcroft guidelines… for the most part they would be legal under the current guidelines)
New York Times article on 3-year long FBI surveillance of Austin activist (with no sign of criminal activity)
FBI spies on Iowa peace group before Minneapolis convention
JTTF Spied on Colorado American Indian Movement and the Rocky Mountain Peace and Justice Center
In spite of guidelines meant to safeguard First Amendment activity, the FBI repeatedly finds itself investigating or question political activists. What improvements would you make to prevent this from continuing to happen?
Should the FBI ever devote resources to investigating political organizations it concedes has nonviolent and peaceful intentions?
Do such investigation endanger the First Amendment?
The FBI and Journalists
Background: According the the New York Times, “Alone in the Oval Office, Mr. Trump began the discussion by condemning leaks to the news media, saying that Mr. Comey should consider putting reporters in prison for publishing classified information, according to one of Mr. Comey’s associates.”
Do you believe such prosecutions would endanger our free press?
If asked by an official in the executive branch to go after journalists for publishing classified information, would you?