News
Civil Rights
Feb. 26, 2002
Growing Scope of Power
Forum Column - By Dorothy M. Ehrlich - In an announcement that has attracted remarkably little scrutiny or public debate, Attorney General John Ashcroft is considering whether to abandon guidelines that restrict the government from spying on domestic, religious and political organizations. Coming from an attorney general who has described anyone who disagrees with the administration's policies as "giving ammunition to the enemy," this statement must give pause to anyone with a sense
Forum Column
By Dorothy M. Ehrlich
In an announcement that has attracted remarkably little scrutiny or public debate, Attorney General John Ashcroft is considering whether to abandon guidelines that restrict the government from spying on domestic, religious and political organizations. Coming from an attorney general who has described anyone who disagrees with the administration's policies as "giving ammunition to the enemy," this statement must give pause to anyone with a sense of history.
Few Americans dispute the need to increase security in the wake of the Sept. 11 attacks. Indeed, the Bush administration has launched an aggressive assault on civil liberties in the name of national security, by detaining hundreds of foreign-born suspects with little regard for due process, eroding client-attorney privilege, announcing proposals for military tribunals and rounding up young men based on their national origin. Meanwhile, the USA PATRIOT Act, Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism, granted sweeping new surveillance and information-sharing powers to domestic intelligence agencies.
Thirty years ago, a congressional committee led by Sen. Frank Church investigated the conduct of the domestic intelligence agencies during the '50s, '60s and early '70s. The Church committee uncovered a history so replete with treacherous abuses of power that Congress established guidelines designed to protect the American people in the future.
In an effort to root out the threat of communism in the '50s, the government engaged in illegal activities designed to threaten and silence anyone who even sympathized with a particular political point of view. Thousands of lives were shattered during the McCarthy period when people were jailed, blacklisted, and robbed of their livelihoods.
In the 1960s, Dr. Martin Luther King Jr. was targeted under a program called "Racial Matters." A registration and voting campaign among African-Americans in the South drew the attention of the FBI, which authorized the operation with the specious claim that King's organization was being infiltrated by communists.
King's growing influence caused the FBI to undertake a mind-boggling smear campaign designed to destroy and discredit him. King's real crime in the eyes of the FBI, according to documents that were uncovered by the Church committee, was that he "represented a clear threat to the established order of the U.S."
The FBI's campaign against King included wiretapping his telephones and hotel rooms, obtaining highly personal information that it tried to use to break up his marriage and drive him to suicide and aggressively seeking to discredit King in the eyes of the White House, Congress, the religious community and even foreign governments - all because he advocated social justice.
This was just part of a series of covert action programs carried out by the FBI and directed at American citizens. These "counterintelligence programs," known as COINTELPRO, went far beyond the mere collecting of intelligence and involved acting outside the legal process in a covert fashion to disrupt, slander and harass groups and individuals.
The documentation of these abuses led Congress to establish the guidelines that Attorney General Ashcroft is reconsidering. The guidelines regulate FBI activity in both foreign and domestic intelligence-gathering and make it clear that constitutionally protected advocacy of unpopular ideas or political dissent alone cannot serve as the basis for an investigation, according to testimony by ACLU national President Nadine Strossen before Congressman John Conyers' Forum on National Security and the Constitution.
In an effort to balance the protection of civil liberties with law enforcement's investigative power, the current guidelines require a valid factual basis for opening an investigation, which largely preclude FBI "fishing expeditions." The preamble specifically states that investigations "must be performed with care to protect individual rights and to insure that investigations are confined to matters of legitimate law enforcement interest." One of the appropriate considerations used to determine whether to open such an investigation is "the danger to privacy and free expression posed by an investigation."
There is no evidence that these guidelines have weakened the FBI's ability to investigate crime. In fact, the FBI has the power to initiate investigations in advance of criminal conduct and even to investigate based on the mere possibility of violence. As for the perceived need to give law enforcement more power to engage in surveillance at places of worship, existing guidelines already allow mosques and churches to be investigated if there is evidence that someone in the group has plans to break the law.
With the passage of the USA PATRIOT Act in October, Congress authorized law enforcement agencies to share sensitive information gathered in criminal investigations with intelligence agencies, including the CIA and the National Security Agency, and with other federal agencies including the Immigration and Naturalization Service, the Secret Service and the Department of Defense.
The act also permits law enforcement officers to share intercepts of telephone conversations and Internet communications with the CIA. No court order would be necessary to authorize the sharing of this sensitive information, and the law does not include any meaningful restrictions on subsequent use of the recorded conversations. While some sharing of information may be appropriate in limited circumstances, it should be done only with strict safeguards. The USA PATRIOT Act lacks essential safeguards, which may lead to a recurrence of the very abuses that the Church committee exposed and sought to end years ago.
Congress must increase its vigilance in overseeing the Justice Department, given the new powers that it recently has assumed. In addition, Congress should oversee any new language the attorney general might draft to revise the department's intelligence guidelines and specifically to examine their effects on the constitutional right to dissent.
Clearly, our elected officials and the public at large will need to brush up on recent U.S. history to remind ourselves of how the lives of innocent Americans can be ruined by unchecked law enforcement power, especially when those weapons are focused on political dissent.
If that kind of wholesale abuse can be focused on Dr. Martin Luther King Jr., an individual so admired that a national holiday has been declared in his honor, one can only imagine what can happen to the powerless, the foreign-born or someone practicing a religion viewed as out of the mainstream, if the domestic spying agencies are once again unleashed.
The USA PATRIOT Act gives more than enough power to the CIA and the FBI to engage in unwarranted surveillance of Americans. They do not need the additional power that the attorney general has proposed. Instead, we should honor the promise of the Church committee's guidelines and guard against a repeat of some of the least proud moments in our history.
Dorothy M. Ehrlich is the executive director of the ACLU of Northern California.
By Dorothy M. Ehrlich
In an announcement that has attracted remarkably little scrutiny or public debate, Attorney General John Ashcroft is considering whether to abandon guidelines that restrict the government from spying on domestic, religious and political organizations. Coming from an attorney general who has described anyone who disagrees with the administration's policies as "giving ammunition to the enemy," this statement must give pause to anyone with a sense of history.
Few Americans dispute the need to increase security in the wake of the Sept. 11 attacks. Indeed, the Bush administration has launched an aggressive assault on civil liberties in the name of national security, by detaining hundreds of foreign-born suspects with little regard for due process, eroding client-attorney privilege, announcing proposals for military tribunals and rounding up young men based on their national origin. Meanwhile, the USA PATRIOT Act, Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism, granted sweeping new surveillance and information-sharing powers to domestic intelligence agencies.
Thirty years ago, a congressional committee led by Sen. Frank Church investigated the conduct of the domestic intelligence agencies during the '50s, '60s and early '70s. The Church committee uncovered a history so replete with treacherous abuses of power that Congress established guidelines designed to protect the American people in the future.
In an effort to root out the threat of communism in the '50s, the government engaged in illegal activities designed to threaten and silence anyone who even sympathized with a particular political point of view. Thousands of lives were shattered during the McCarthy period when people were jailed, blacklisted, and robbed of their livelihoods.
In the 1960s, Dr. Martin Luther King Jr. was targeted under a program called "Racial Matters." A registration and voting campaign among African-Americans in the South drew the attention of the FBI, which authorized the operation with the specious claim that King's organization was being infiltrated by communists.
King's growing influence caused the FBI to undertake a mind-boggling smear campaign designed to destroy and discredit him. King's real crime in the eyes of the FBI, according to documents that were uncovered by the Church committee, was that he "represented a clear threat to the established order of the U.S."
The FBI's campaign against King included wiretapping his telephones and hotel rooms, obtaining highly personal information that it tried to use to break up his marriage and drive him to suicide and aggressively seeking to discredit King in the eyes of the White House, Congress, the religious community and even foreign governments - all because he advocated social justice.
This was just part of a series of covert action programs carried out by the FBI and directed at American citizens. These "counterintelligence programs," known as COINTELPRO, went far beyond the mere collecting of intelligence and involved acting outside the legal process in a covert fashion to disrupt, slander and harass groups and individuals.
The documentation of these abuses led Congress to establish the guidelines that Attorney General Ashcroft is reconsidering. The guidelines regulate FBI activity in both foreign and domestic intelligence-gathering and make it clear that constitutionally protected advocacy of unpopular ideas or political dissent alone cannot serve as the basis for an investigation, according to testimony by ACLU national President Nadine Strossen before Congressman John Conyers' Forum on National Security and the Constitution.
In an effort to balance the protection of civil liberties with law enforcement's investigative power, the current guidelines require a valid factual basis for opening an investigation, which largely preclude FBI "fishing expeditions." The preamble specifically states that investigations "must be performed with care to protect individual rights and to insure that investigations are confined to matters of legitimate law enforcement interest." One of the appropriate considerations used to determine whether to open such an investigation is "the danger to privacy and free expression posed by an investigation."
There is no evidence that these guidelines have weakened the FBI's ability to investigate crime. In fact, the FBI has the power to initiate investigations in advance of criminal conduct and even to investigate based on the mere possibility of violence. As for the perceived need to give law enforcement more power to engage in surveillance at places of worship, existing guidelines already allow mosques and churches to be investigated if there is evidence that someone in the group has plans to break the law.
With the passage of the USA PATRIOT Act in October, Congress authorized law enforcement agencies to share sensitive information gathered in criminal investigations with intelligence agencies, including the CIA and the National Security Agency, and with other federal agencies including the Immigration and Naturalization Service, the Secret Service and the Department of Defense.
The act also permits law enforcement officers to share intercepts of telephone conversations and Internet communications with the CIA. No court order would be necessary to authorize the sharing of this sensitive information, and the law does not include any meaningful restrictions on subsequent use of the recorded conversations. While some sharing of information may be appropriate in limited circumstances, it should be done only with strict safeguards. The USA PATRIOT Act lacks essential safeguards, which may lead to a recurrence of the very abuses that the Church committee exposed and sought to end years ago.
Congress must increase its vigilance in overseeing the Justice Department, given the new powers that it recently has assumed. In addition, Congress should oversee any new language the attorney general might draft to revise the department's intelligence guidelines and specifically to examine their effects on the constitutional right to dissent.
Clearly, our elected officials and the public at large will need to brush up on recent U.S. history to remind ourselves of how the lives of innocent Americans can be ruined by unchecked law enforcement power, especially when those weapons are focused on political dissent.
If that kind of wholesale abuse can be focused on Dr. Martin Luther King Jr., an individual so admired that a national holiday has been declared in his honor, one can only imagine what can happen to the powerless, the foreign-born or someone practicing a religion viewed as out of the mainstream, if the domestic spying agencies are once again unleashed.
The USA PATRIOT Act gives more than enough power to the CIA and the FBI to engage in unwarranted surveillance of Americans. They do not need the additional power that the attorney general has proposed. Instead, we should honor the promise of the Church committee's guidelines and guard against a repeat of some of the least proud moments in our history.
Dorothy M. Ehrlich is the executive director of the ACLU of Northern California.
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