Letter to Attorney General re: Domestic Surveillance

March 6, 2002
Joint Letter to Attorney General
Regarding Domestic Spying


March 6, 2002

Attorney General John Ashcroft
U.S. Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530

Dear Mr. Ashcroft:

The undersigned organizations are writing to ask you to leave the current guidelines on domestic spying in place rather than relax them.1 Relaxing the guidelines to allow the FBI greater freedom to investigate individuals and groups based on their beliefs is unwise, and unsound law enforcement policy.

The Church Committee Hearings in the 1970s revealed an FBI run amok. Americans were shocked to learn the FBI “monitored political demonstrations, infiltrated civil rights groups, conducted illegal break-ins and warrantless wiretaps of anti-war groups, [and] sent anonymous poison-pen letters intended to break up marriages of political group leaders.”2

The Guidelines were adopted to prevent the intrusive investigations and techniques used by the FBI to target individuals or groups because of their beliefs. They make it clear that constitutionally protected advocacy of unpopular ideas or political dissent alone cannot serve as the basis for an investigation.

The rules require a valid factual basis for opening an investigation, which largely precludes wholesale FBI fishing expeditions. The threshold for opening a formal investigation is already minimal, requiring “reasonable indication.” Preliminary inquiries require even less. The Bureau can begin a preliminary inquiry when it receives any information or allegation “whose responsible handling requires some further scrutiny.”3 Nothing, however, prevents a preliminary inquiry from turning into a full investigation upon the Bureau receiving “reasonable indication” that a crime has been, or is about to be, committed.

Furthermore, the FBI’s hands are not tied waiting for a crime to occur. The Guidelines recognize that “[i]n its efforts to anticipate or prevent crime, the FBI must at times initiate investigations in advance of criminal conduct.”4

Even advocacy of violence, protected speech under the First Amendment, may form the basis for an investigation when there are indicia that a crime may be committed. While urging respect for the First Amendment, the guidelines state: “When, however, statements advocate criminal activity or indicate an apparent intent to engage in crime, particularly crimes of violence, an investigation under these guidelines may be warranted. . .”5

The Guidelines, therefore, focus the FBI on investigating crimes or gathering foreign intelligence information rather than harassing dissenters.

History has demonstrated that without those guidelines, the FBI targets individuals and groups based on their advocacy and association rather than for legitimate law enforcement. Relaxing the guidelines to allow greater spying on groups based on their First Amendment activity is counter-productive and wastes resources.

Political spying subverts our political freedom. It chills those who disagree with the status quo. Our Constitution allows everyone to have a voice, whether or not they agree with the majority.

Increased political spying not only harms our freedoms but has other consequences as well. It diverts resources from fighting real crime. While there may be groups in our country that espouse views with which many disagree, a relatively small number ever engage in criminal activity. Every FBI agent spending his days taking photographs at an anti-abortion rally, gun show, or other political rally is an agent not engaged in preventing and fighting crime.

Political spying is also likely to increase violence. Justice Louis Brandeis recognized long ago that the First Amendment acts as a safety valve. If people marginalized in our society are free to express their views and engage in political activity, they are less likely to resort to violence.

The FBI is already apparently filing reports on those who disagree with the current administration. Relaxing the Guidelines will only result in more intrusive activity. History and current events demonstrate the need for Guidelines that focus the FBI on investigating crime and legitimate intelligence-gathering. We, therefore, urge you not to relax those guidelines.

Sincerely,

Laura Murphy, Director

American Civil Liberties Union

Washington National Office

 

Sonia Arrison, Director

Center for Technology Studies

Pacific Research Institute

Ziad Asali, President

American Arab Anti-

Discrimination Committee (ADC)

 

Nihad Awad, Executive Director

Council on American-

Islamic Relations (CAIR)

Jerry Berman, Executive Director

Center for Democracy

and Technology (CDT)

 

Joan Bertin, Executive Director

National Coalition Against Censorship

Yaser Bushnaq, Chief Coordinator

Solidarity USA

 

Jay Daryl Byler, Director

Mennonite Central Committee, US

Washington Office

 

Heidi Boghosian, Executive Director

National Lawyers Guild

Rob Cavenaugh, Legislative Director

Unitarian Universalist Association of

Congregations

 

Christine Chen, Executive Director

Organization of Chinese-Americans

 

Suzanne Crowell, Co-Chair

Fund for the Fourth Amendment

Lisa Dean, Deputy Director

Center for Technology Policy

Free Congress Foundation

 

Chris Finan, President

American Booksellers Foundation

Cheryl Fischer, Director

The Kumba Human Rights

Focus Group

 

Stephenie Foster, Director Public Policy

People for the American Way (PFAW)

Margaret Fung, Executive Director

Asian-American Legal Defense

and Education Fund

 

Kit Gage, Director

National Committee Against

Repressive Legislation

Beth Givens, Director

Privacy Rights Clearinghouse

Ron Hampton, Executive Director

National Black Police

Officers Association

 

Evan Hendricks, Editor/Publisher

Privacy Times

Albert Hirsch, Co-Director

Washington Ethical Action Office

 

Chris Hoofnagle, Legislative Counsel

Electronic Privacy Information Center

Amy Isaacs, National Director

Americans for Democratic Action (ADA)

 

Rafeeq Jaber, President

Islamic Association for Palestine

Florence Kimball, Legislative Secretary

Friends Committee

On National Legislation (Quakers)

 

James Landrith, Editor

The Multiracial Activist and

Abolitionist Examiner

Scott Long, Program Director

International Gay and Lesbian

Human Rights Organization

 

James H. Matlack, Director

American Friends Service Committee

Washington Office

Ken McEldowney, Executive Director

Consumer Action

 

 

Joe Montano, Executive Director

National Federation of

Filipino Americans (NAFFA)

Karen K. Narasaki, President

National Asian-Pacific

American Legal Consortium

 

Hilary Shelton, Director

National Association for the

Advancement of Colored People (NAACP)

Manjit Singh, Executive Director

Sikh Mediawatch and Resource

Task Force

 

Keith Stroup

National Organization for the

Reform of Marijuana

Nkechi Taifa, Director

Equal Justice Program

Howard University School of Law

 

Rep. James L. Thomas (AL), President

National Black Caucus

of State Legislators

Coralee Whitcomb, President

Computer Professionals for

Social Responsibility

 

Mark S. Zaid, Executive Director

The James Madison Project

Kevin Zeese, President

Common Sense for Drug Policy

 

Jim Zogby, President

Arab-American Institute

 

 

 


Footnotes

1 On December 1, 2001, the New York Times reported that Attorney General Ashcroft is considering a plan to relax restrictions on the FBI, giving them greater freedom to spy on religious and political organizations. Johnston and Van Natta, “Ashcroft Seeking to Free FBI to Spy on Groups,” The New York Times, December 1, 2001.
2 David Cole, “Strict Scrutiny: How Not to Respond to Hate Groups,” Legal Times, Weeks of August 25 and 30, 1999
3 The Attorney General’s Guidelines on General Crimes, Racketeering Enterprise and Domestic Security/Terrorism Investigations, at Section IIB.
4 Id. at Section I.
5 Id.
6 Christian Science Monitor, “Political Dissent Can Bring Federal Agents to Door,” January 8, 2002, located at: http://www.csmonitor.com/2002/0108/p1s4-usju.htm For example, San Franciscan Barry Reingold was interviewed by the FBI after making remarks in his local gym that “Bush has nothing to be proud of. He is a servant of the big oil companies and his only interest in the Middle East is oil.” Two agents showed up at his home. After the agents assured him he was entitled to freedom of speech, Reingold said “Thank you. That ends our conversation.” When Reingold closed his door, he heard one of the agents say “But we still need to do a report.”

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