Other programs have collected similar data about Americans’ email and Internet activity and seized the content of their international communications, even though there was no evidence they had done anything wrong. State and local police and the general public are encouraged to report all “suspicious” people and activity to the FBI. This is what a domestic intelligence enterprise looks like in our modern technological age.
Many Americans were shocked to learn that they were the targets of such an outrageously overbroad government surveillance program. Even many members of Congress who passed the statute that enabled this surveillance and were charged with overseeing FBI operations were unaware of the way the government was secretly interpreting the law.
But the American Civil Liberties Union (ACLU) had long warned that turning the FBI into a domestic intelligence agency by providing it with enhanced surveillance and investigative authorities that could be secretly used against Americans posed grave risks to our constitutional rights.
Our nation’s founders understood the threat unchecked police powers posed to individual liberty, which is why fully half of the constitutional amendments making up the Bill of Rights are designed to regulate the government’s police powers. The founders realized that political rights could only be preserved by checking the government’s authority to invade personal privacy and by establishing effective due process mechanisms to ensure independent oversight and public accountability. As the Supreme Court put it, “[t]he Bill of Rights was fashioned against the background of knowledge that unrestricted power of search and seizure could also be an instrument for stifling liberty of expression.” Yet repeatedly since its very beginning over a hundred years ago, the FBI has claimed the authority not just to investigate and prosecute potential violations of law, but to conduct secret domestic intelligence activities that often skirted constitutional protections. Courts traditionally protect Fourth Amendment rights through the “exclusionary rule,” which prohibits law enforcement officers from using the fruits of illegal searches in criminal prosecutions.
But this penalty poses little obstacle for intelligence investigations because the information collected in these programs is rarely intended for, or utilized in, criminal prosecutions. When it is necessary for prosecution, information discovered through secret intelligence programs can easily be replicated using traditional law enforcement tools, shielding the intelligence programs from judicial oversight and public scrutiny. And because these intelligence activities take place in secret, victims rarely know the government has invaded their privacy or violated their rights, so they cannot seek redress.
In a previous era, the FBI’s unregulated covert domestic intelligence activities went on undiscovered for decades, protected by official secrecy until activists burglarized an FBI office in Media, Pennsylvania, in 1971, and released a thousand domestic intelligence files to reporters.
According to the Senate Select Committee established to investigate these illegal intelligence activities, FBI headquarters had opened over 500,000 domestic security files during this time and compiled a list of 26,000 Americans who would be “rounded up” during a national security emergency.
It found that these FBI domestic intelligence operations targeted numerous non-violent protest groups, civil rights organizations, and political dissidents with illegal wiretaps, warrantless physical searches, and an array of harassing “dirty tricks” designed to infiltrate, obstruct, discredit, and neutralize “perceived threats to the existing social and political order.”
The exposure of the FBI's intelligence abuses led to a series of reforms, including the Foreign Intelligence Surveillance Act (FISA), a law designed to regulate government surveillance for national security purposes and protect Americans’ privacy. An initiative to impose statutory limits on the FBI’s authority failed, however. By way of compromise, Attorney General Edward Levi issued written guidelines in 1976 which circumscribed the FBI's authority to conduct domestic security investigations.
The Attorney General’s Guidelines required the FBI to have a criminal predicate consisting of “specific and articulable facts giving reason to believe that an individual or group is or may be engaged in activities which involve the use of force or violence,” before opening a full investigation. Upon receipt of information or allegations of criminal activity not meeting this threshold, the guidelines authorized preliminary investigations that allowed FBI agents to develop evidence to justify opening full investigations, but these were strictly limited in both time and scope.
Successive attorneys general modified and reinterpreted the Attorney General’s Guidelines over the years and developed additional sets of guidelines regulating the FBI’s use of informants and undercover operations. The Bush administration alone amended the various FBI guidelines four times after 9/11. But while the Attorney General’s Guidelines can be beneficial in establishing objective standards and reasonable limitations on the FBI’s power, they are not self-enforcing. A number of public scandals and investigations by Congress and the Justice Department Inspector General (IG)— both before and after the terrorist attacks of September 11, 2001 —reveal the FBI often violates and/or ignores these internal rules, along with other legal and constitutional limitations.
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