Attorney General John Ashcroft, on May 30, 2002, announced the revision of the FBI Guidelines for investigating domestic crime, particularly “domestic terrorism.” The public document describing the new Guidelines is available on-line at: www.usdoj.gov/olp/generalcrimes2.pdf
From Anti-Terrorism to Police State Policies
Given that our nation faces the threat of terrorism within our borders, shouldn’t we expand the investigatory powers of our national police agency to detect and prevent such terrorism? At what point would new powers become police state policies?
To answer these questions, consider first that a police state exists when:
1. The central government imposes its comprehensive vision of economic welfare and correct behavior upon its citizens;
2. The police apparatus serves the central government, instead of serving the citizens;
3. The police apparatus takes upon itself to actively enforce the will of the central government, instead of responding primarily to criminal misdeeds, and
4. The citizens serve the central government and its police apparatus because of pervasive fear of punishment.
Do the FBI’s new guidelines tie into any of these four elements of a police state? The answer has two parts. Right now: NO. In the future: YES. Following are four points to consider.
A. The FBI Becomes A National Police Force
If the FBI acted properly as a federal entity under the Constitution, the FBI would confine itself to coordinating interstate criminal investigations and to investigating criminal activity that affects the federal government. The sovereign states, after all, have the primary powers and duties to detect and prosecute crimes against citizens of the states. Murder, kidnapping, rape, robbery, theft, and all other crimes against persons or property fall squarely under state government jurisdiction. As so-called drug laws are also the business of the state governments, the FBI would not be involved in drug crime prosecutions except to coordinate among the several state police agencies.
Unfortunately, Congress has been allowed to expand the number and types of federal crimes, and the FBI has been given the jurisdiction to detect and investigate violation of federal criminal laws (except where other agencies have the exclusive enforcement authority). Some Americans view the FBI’s expanded jurisdiction as unconstitutional; many others, such as the American Civil Liberties Union, accept the jurisdiction but view the FBI with considerable suspicion.
This article does not answer the constitutionality question, but instead examines whether the FBI’s expanded powers move into police state territory. Under elements 2 and 3 of the definition above, a police state requires a national police apparatus. To enforce the police state’s laws and decrees upon the citizens, the national police apparatus must be powerful.
As the FBI acquires new or expanded powers, the FBI becomes more powerful. As the FBI becomes more powerful, it becomes more capable of serving the goals of the central government. As the goals of the central government turn toward managing the economy and controlling the affairs of private groups and individuals, the central government will need one or more powerful police forces to enforce its policies. When the FBI gets enough power, and when the citizens accept or acquiesce to a powerful FBI, then the FBI can become the national police apparatus to support a police state.
Because a powerful national police apparatus is a key ingredient in a police state, every increase in FBI “law enforcement” powers poses a danger to American liberty.
B. FBI Investigation Procedures Are Changed Under the May 30 Guidelines
There is no absolute reason why the state government police agencies cannot develop counter- terrorism strategies and coordinate together to fight terrorism. Nevertheless, the FBI now has the job of trying to detect, prevent and prosecute terrorist activity. Dealing with a decentralized and apparently suicidal enemy presents a thorny problem, and this article does not pretend to offer a simple solution. Indeed, the FBI might be the appropriate agency to fight terrorist threats on American soil.
How does the FBI investigate crime? Under the FBI’s 1989 investigation Guidelines, FBI agents would receive allegations or crime reports from citizens and local police agencies, and tips from informants. When the initial leads suggested some possibility of criminal activity, the FBI agents could conduct some “prompt and extremely limited checking out” of those leads. This “preliminary inquiry” required a supervisory agent’s approval. If the preliminary inquiry uncovered enough information to produce a “reasonable indication of criminal activities,” then the FBI could open a formal investigation.
When conducting investigations under the 1989 Guidelines, agents were supposed to proceed cautiously, usually starting with some allegation or report from outside the FBI. This fact must roar: police agencies in a free society respond and react to evidence of planned and actualized criminal activity. Police officers in a free society keep the peace; they do not investigate citizens and activities unless there is some reason to investigate. Quite properly, the FBI had first to obtain evidence suggesting some kind of criminal activity before its agents could begin investigating.
The FBI’s May 30, 2002 revised Guidelines move to expand the FBI’s investigatory powers. The 1989 Guidelines’ basic rules about criminal investigations have not changed, but the new anti-terrorist provisions open huge exceptions. In Section VI(B), the new Guidelines authorize FBI agents to carry out “general topical research” and retain files on this research. Specifically, agents may conduct “online searches” and visit “online sites and forums as part of such research.” Although the Guidelines warn agents against searching “for information by individuals’ names or other individual identifiers,” the new rules allow searching by names to locate “names of authors who write on the topic” that the agent is researching. (As a practical matter, isn’t everyone a potential “author” of an e-mail on various subjects?)
What is the problem with allowing FBI agents to research the Internet for “terrorist” information? Nothing — except that the FBI now encourages snooping around looking for people who might be suspicious, and gathering files on them. No longer do agents have to receive evidence or allegations about planned or on- going criminal activity before the agents start investigating. Now, agents can investigate people, organizations, websites, chat rooms and forums … for any reason and for no reason.
The new Guidelines envision a surveillance apparatus unlike any in American history. Section VI(A) of the new Guidelines declares that the “FBI is authorized to operate and participate in identification, tracking, and information systems for the purpose of identifying and locating terrorists … [and] otherwise detecting, prosecuting, or preventing terrorist risks and threats… [or] terrorist activities.”
Certainly a national anti-terrorist effort will require a sophisticated data collection and analysis system. The new Guidelines conceal the interconnections, however. The FBI agents surfing the Internet looking for suspicious groups and characters will be feeding their data into the national system, all for the avowed “purpose of identifying and locating terrorists and detecting terrorist activity.” Under the new Guidelines, the snooper-surfers won’t need any prior evidence, tip, allegation, or indication of criminal activity — they can search every website on the planet looking for stray words, e-mails, postings, and comments that might implicate someone who can then become a terrorism suspect.
What if you see your friend Jack across the terminal at the airport? You shout, “Hi, Jack!” and you’ll find yourself cuffed, in a small room, answering many questions. Same result if, at the airport ticket counter, you casually remark about a new movie, saying “It’s a bomb.”
Imagine how stray remarks in web forum postings and e-mails might get you logged into an FBI agent’s Internet research notes, and fed into national files. How will FBI snooper-surfers treat your posted comments that criticize the FBI or the current airport security procedures? You can fairly assume that some of your free speech remarks will be viewed as suspicious by an FBI agent who is searching for suspicious writings.
The 1989 Guidelines and the new revised FBI Guidelines expressly state that the FBI must not launch investigations “based solely on [citizens’] activities protected by the First Amendment or on the lawful exercise of any other [federal or Constitutional] rights.” All that limitation means is that the FBI shouldn’t investigate a person just because he or she is speaking, writing, or practicing a religion. That limitation disappears if the FBI snooper-surfer claims, for example, to be investigating people with “terrorist” proclivities in their writings.
C. The Internal Pressure To Snooper-Surf
Most Americans do not know how individual FBI agents are evaluated. There is no direct way to measure how effective a police officer is, so police agencies have developed indirect measures. The FBI is no different. Fact is, much of what field FBI agents do is counted, added up, and totaled. FBI agents, for example, must report statistics (“stats”) about how many informers they have contacted or recruited, how many leads they received and processed, etc. An FBI agent’s career depends in large part on these “stats.”
Opening the Internet to snooper-surfing means a new category of “stats.” It might not have started yet, but there is every reason to expect that FBI agents will log and report how many suspicious groups, persons and websites they have located by web surfing. It would make sense for the “stats” to include counts of how many persons or groups the agent actually reports to the national database. The more”stats” the better, so FBI agents will be able to maximize their “stats” by doing a lot of snooper-surfing and then logging and reporting as many people as possible.
D. More Aggressive Tactics
Under the 1989 Guidelines, the FBI was required to use the least intrusive means that could reasonably work to obtain leads to uncover and prosecute criminal activity. In connection with criminal activity that might occur in the future, FBI agents would not proceed to inquire or investigate a citizen or group unless there were “facts and circumstances amounting to a reasonable indication that a crime will occur.” (Section II(C)).
The revised Guidelines take a much more aggressive stance. Under Section I, “Principles,” the Guidelines now state: “The FBI shall not hesitate to use any lawful techniques consistent with these Guidelines, even if intrusive, where the intrusiveness is warranted in light of the seriousness of a crime or the strength of the information indicating its commission or potential future commission. … particularly … in the investigation of terrorist crimes and … enterprises that engage in terrorism.”
The term “intrusive” refers to how directly involved the federal police agency becomes in accessing private information, surveilling, questioning witnesses, searching premises, logging information, etc. The new Guidelines now encourage “intrusive” techniques — liberty invading techniques — whenever the FBI agents can explain the “seriousness” or the “strength” of their suspicions. The old Guidelines encouraged restraint; the new Guidelines encourage agents to push the envelope.
The Overall Effect
Under the May 30 Guidelines, the FBI is shifting toward surveilling and investigating people just to see whether those people might be suspicious. These Guidelines encourage field agents to use “intrusive” techniques to see whether even potential crimes are possible. National database logging of persons, writings, messages, groups and websites is to become standard FBI practice. Agents will likely have career incentives to maximize their surveillance and snooping into Internet and other activities of innocent citizens.
It might be quite sensible to empower the domestic police agencies in new ways to deal with this new, global, decentralized, and unprecedented threat of terrorism. It would certainly make sense if there were a congressionally declared war, because such a war could be ended by an act of Congress.
The “War on Terrorism,” however, has no defined end point. The upshift in federal police agency power, as evidenced in the changes to the FBI’s Guidelines, seems to be permanent.
Perhaps President Bush and Attorney General John Ashcroft will not use the FBI’s new powers to an evil purpose. But what will happen when a President is elected who has a world socialist “vision” for America that requires national law enforcement to impose? The FBI will have already entrenched itself, built its national databases, and be all set to locate and capture those suspicious characters who talk too much about the Bill of Rights.
If you doubt the logic of this last scenario, then ask yourself: Who right now within the FBI is speaking out to question these expanded powers? Who within the FBI is even asking the right questions? The answer is: no one in the FBI is questioning the new powers. So, who within the FBI will question the next set of rules changes that further empower the FBI and redirect its mission to target political opponents?
Citizens, engaged in the defense of liberty, are America’s only real hope.