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Guest Post: The Elephant in the Room: The FBI

Commissions, oversight boards, and review groups are all the rage these days.  Recent weeks have seen hundreds of pages of reports evaluating American intelligence agencies, and there’s a promise of more to come.  These reports have recommended dozens of modifications affecting all three branches of government.  But there’s an integral part of the surveillance state that has thus far largely escaped the current scrutiny:  the FBI.  And while failure to “connect the dots” is an oft-cited flaw within the intelligence community, not insisting on examining more closely the FBI’s surveillance activities represents a similar flaw by those outside the intelligence community

A provision inserted by Rep. Frank Wolf in the recent spending bill, could have provided an opportunity to overcome this collective blind spot.  The provision created a commission—made up of former Attorney General Ed Meese, former 9/11 Commission member Tim Roemer and Professor Bruce Hoffman—that will conduct an independent external review of the FBI’s post-9/11 response to terrorism.  As long as surveillance reform is in the air, the post-9/11 FBI merits at least as much scrutiny as the NSA.

Consider the facts:  whatever one may think of FISA and the FISA Amendments Act, they actually impose statutory limits and some form of review (albeit minimal) by Article III judges.  Moreover, the NSA’s activities that have generated the most concern from American critics—the ones focused on the NSA’s domestic surveillance activity, such as the Section 215 telephony metadata collection program and the “incidental” collection of domestic communications under the Section 702 program—form a tiny portion of the NSA’s overall surveillance activities, most of which are targeted abroad.  And yet there is near-consensus that the NSA’s activities have been subjected to insufficient oversight.

The vast majority of the FBI’s intelligence collection, by contrast, arguably enjoys even less oversight while focusing largely on Americans, often Americans who aren’t even suspected of criminal activity or of posing a threat to the national security.  Rather than statutes and judicial review, constraints on FBI intelligence collection are often limited to those provided by internal guidelines—sometimes secret ones—issued by the Attorney General and the FBI itself.  Even FBI tools that are subject to some statutory restrictions—such as National Security Letters (NSLs), which allow the FBI to obtain telephone toll records, e-mail subscriber information, employment history, and financial records—operate free from judicial oversight.  The President’s review group did recommend reforms to the FBI’s use of NSLs—the one exception to overlooking the FBI in the current dissection of the surveillance state.  But the panel did not examine or address any of the FBI’s other broad intelligence-collection authorities.  And the President—likely due in part to FBI Director Jim Comey’s opposition to the panel’s NSL-related suggestions—made no mention of those suggestions in his recent speech about surveillance reform, effectively excluding discussion of meaningful FBI review from the current public debate.  If the time has come to rethink the NSA’s power to collect telephone and email communications, surely it is also time to take a closer look at the FBI’s powers—such as suspicionless infiltration of religious and political organizations or detailed demographic mapping of minority racial and ethnic communities—which are at least as intrusive as the NSA’s signals intelligence collection.

Unfortunately, the FBI review as currently envisioned will fall far short of the type of examination needed.  Its scope is limited to just two questions.  First, whether the FBI has successfully implemented the 9/11 Commission’s recommendation to transform into a counterterrorism intelligence agency.  And second, whether the FBI is accurately assessing the evolving threat of terrorism, with “a particular focus on the threat of domestic radicalization,” by which is meant domestic Islamic radicalization.  Any FBI review envisioned in these terms will be profoundly flawed.  Indeed, it will be vastly under-inclusive—allowing a focus on Islamic radicalization to create blinders that can obscure other, potentially significant, threats and failing to consider other vital questions.

While the intelligence community should be continuously reassessing threats to the US and asking whether it is meeting those threats effectively, the mandate to “focus” on the threat of domestic radicalization is nothing more than a stalking horse for Representative Wolf’s long-standing effort to single out American Muslims as a security threat.  Violent extremists, unfortunately, come in all shapes and sizes, emerging from a spectrum of racial, ethnic, religious, and political backgrounds.  Indeed, according to a 2011 Council on Foreign Relations report, FBI statistics indicate that “roughly two-thirds of terrorism in the United States was conducted by non-Islamic American extremists from 1980-2001; and from 2002-2005, [that percentage] went up to 95 percent.”  More recently, the Department of Homeland Security reported that of the 12 successful terrorist attacks in the United States between 2008 and 2009, only three were linked to Islamic extremism.  To the extent the FBI assesses threats emanating from “domestic radicalization” (query here whether the FBI should concern itself with “domestic radicalization” at all, as opposed to “domestic ideologically motivated violence”), it should focus on the phenomenon in all its forms.  Any other path will merely encourage Islamophobia and, according to the Southern Poverty Law Center, which attributed the 50% jump in anti-Muslim hate crimes in 2010 to anti-Muslim propagandizing, increase the likelihood of more hate crimes targeting Muslims (or those perceived to be Muslims).

Merely asking whether the FBI has successfully transformed itself into a counterterrorism intelligence agency (spoiler alert: it has) represents an equally myopic approach.  Indeed, it is the very fact that the NSA is nothing but an intelligence agency that leads to some of the most profound concerns about it.  By definition, intelligence agencies operate in secret, largely eluding traditional sources of accountability such as transparency, adversarial judicial proceedings, and thorough oversight by Congress or the public.  This secrecy, and its concomitant absence of accountability, is at odds with the very nature of democratic governance.  It raises profound questions about how to ensure that government action takes sufficient account of fundamental values as well as who should decide when it has successfully done so.  The response to these questions in the context of the NSA has been concern about inadequate transparency, the absence of mechanisms to render judicial proceedings adversarial, and ineffective oversight.

These concerns are equally applicable to the FBI’s intelligence collection activities, which are also carried out in secret.  Like the NSA, the FBI seems to have interpreted its terrorism-prevention mandate as license to collect and retain as much information as possible.  It sweeps up massive amounts of information and retains it in giant databases—regardless of whether the information indicates any threat or wrongdoing.  This broad collection and retention raises the same concerns about impacts on privacy and First-Amendment-protected activity as the NSA’s programs.  In fact, in the case of the FBI, some of these concerns have already proved well-founded.  A 2010 Justice Department review, for example, found that the FBI’s aggressive intelligence collection resulted in the use of “troubling” tactics in the investigation of activist groups, tactics that threaten to quash political dissent.  And according to at least one study, anxieties about law enforcement tactics have reduced mosque attendance, altered the way Muslims dress in public, and affected travel plans.  Another found that FBI activity had decreased contributions to Muslim charities.  The President’s surveillance review panel recognized that concerns about the NSA are echoed in the FBI context when it argued that NSLs should be issued only after review by a judge (currently, any FBI field office can issue an NSL) and that the information collected through NSLs should be subject to the same oversight, minimization, retention, and dissemination procedures as the records the NSA acquires through the Section 215 collection program.  But just as concerns about the operation of the NSA extend beyond the boundaries of a single collection program, questions about FBI intelligence collection transcend the issue of NSLs.

It’s time that someone insisted on asking all of the relevant questions about the FBI’s domestic intelligence operations.  Not with an eye toward augmenting the Bureau’s powers or toward singling out one minority community, but instead as part of the larger effort recently begun to ensure that the surveillance powers granted to the government are consistent with life in a democracy.  Has the FBI’s intelligence makeover made America safer?  Are the tools that the Bureau has been given necessary to the success of its mission (or is it lacking tools that it does need)?  Are FBI authorities subject to sufficient oversight?  What threats to civil liberties do those tools pose, and do their benefits outweigh those costs?  As a society, the country is finally asking these questions with respect to NSA surveillance.  It shouldn’t take another Edward Snowden to focus attention closer to home.

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About the Author

is a Visiting Assistant Professor of Law at Brooklyn Law School.