March 6, 2002
Joint Letter to Attorney General
Regarding Domestic Spying
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.
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Laura Murphy, Director American Civil Liberties Union Washington National Office |
Sonia Arrison, Director Center for Technology Studies Pacific Research Institute |
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Ziad Asali, President American Arab Anti- Discrimination Committee (ADC) |
Nihad Awad, Executive Director Council on American- Islamic Relations (CAIR) |
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Jerry Berman, Executive Director Center for Democracy and Technology (CDT) |
Joan Bertin, Executive Director National Coalition Against Censorship |
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Yaser Bushnaq, Chief Coordinator Solidarity USA |
Jay Daryl Byler, Director Mennonite Central Committee, US Washington Office |
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Heidi Boghosian, Executive Director National Lawyers Guild |
Rob Cavenaugh, Legislative Director Unitarian Universalist Association of Congregations |
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Christine Chen, Executive Director Organization of Chinese-Americans |
Suzanne Crowell, Co-Chair Fund for the Fourth Amendment |
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Lisa Dean, Deputy Director Center for Technology Policy Free Congress Foundation |
Chris Finan, President American Booksellers Foundation |
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Cheryl Fischer, Director The Kumba Human Rights Focus Group |
Stephenie Foster, Director Public Policy People for the American Way (PFAW) |
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Margaret Fung, Executive Director Asian-American Legal Defense and Education Fund |
Kit Gage, Director National Committee Against Repressive Legislation |
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Beth Givens, Director Privacy Rights Clearinghouse |
Ron Hampton, Executive Director National Black Police Officers Association |
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Evan Hendricks, Editor/Publisher Privacy Times |
Albert Hirsch, Co-Director Washington Ethical Action Office |
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Chris Hoofnagle, Legislative Counsel Electronic Privacy Information Center |
Amy Isaacs, National Director Americans for Democratic Action (ADA) |
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Rafeeq Jaber, President Islamic Association for Palestine |
Florence Kimball, Legislative Secretary Friends Committee On National Legislation (Quakers) |
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James Landrith, Editor The Multiracial Activist and Abolitionist Examiner |
Scott Long, Program Director International Gay and Lesbian Human Rights Organization |
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James H. Matlack, Director American Friends Service Committee Washington Office |
Ken McEldowney, Executive Director Consumer Action |
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Joe Montano, Executive Director National Federation of Filipino Americans (NAFFA) |
Karen K. Narasaki, President National Asian-Pacific American Legal Consortium |
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Hilary Shelton, Director National Association for the Advancement of Colored People (NAACP) |
Manjit Singh, Executive Director Sikh Mediawatch and Resource Task Force |
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Keith Stroup National Organization for the Reform of Marijuana |
Nkechi Taifa, Director Equal Justice Program Howard University School of Law |
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Rep. James L. Thomas (AL), President National Black Caucus of State Legislators |
Coralee Whitcomb, President Computer Professionals for Social Responsibility |
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Mark S. Zaid, Executive Director The James Madison Project |
Kevin Zeese, President Common Sense for Drug Policy |
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Jim Zogby, President Arab-American Institute |
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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.”