Tuesday, October 26, 2010

When the FBI spies on First Amendment activity

ACLU of Massachusetts Education Director Nancy Murray wrote the following guest blog.

For the past few years, the ACLU of Massachusetts has been trying to map the contours of the post 9/11 domestic spying apparatus that has been erected in the shadows within the Commonwealth and across the nation. For reasons we described in a report produced earlier in the year, it has not been easy to untangle the surveillance web.

But we now know a little more about the FBI’s investigation of First Amendment activity, thanks to a 200-page report that has just made public by the Inspector General of the US Department of Justice.

A Review of the FBI’s Investigations of Certain Domestic Advocacy Groups examines the surveillance of four of the dozens of anti-war and social justice groups that have been listed as “potential terrorist threats” in documents leaked from some of the country’s 72 fusion centers or obtained by the ACLU through Freedom of Information Act lawsuits.

The four groups are the Thomas Merton Center in Pittsburgh, People for the Ethical Treatment of Animals (PETA), Greenpeace and The Catholic Worker. The report also looks at the FBI’s treatment of Glen Milner, a Quaker peace activist.

So what do we learn from this partially-redacted internal investigation? There are five important lessons here for anyone who cares about our fundamental freedoms.

First, truth-telling does not appear to be a core FBI value. In the course of examining why Special Agent Mark Berry took pictures of an anti-war event sponsored by the Thomas Merton Center in November 2002, Inspector General Glenn Fine discovered that the explanation given in an FBI press release after the monitoring became public in 2006 was simply made up. There was no “person of interest” at the 2002 event. The Inspector General went on to discover that the FBI had manufactured not one, but two false stories to explain Berry’s presence, and then fed false information to FBI head Mueller, which featured in his May 2006 Congressional testimony.

Second, racial and religious profiling appears to be a reflex action at the FBI. Special Agent Berry, a new trainee who was anxious to please his superiors, chose to photograph an (unknown) female “he perceived to be of Middle Eastern descent.” He then, after the fact, beefed up his surveillance report by doing some Internet research and including information that “Muslims and people of Middle Eastern descent” often attend meetings at the Center. In 2006, the FBI scoured various databases to manufacture a bogus paper trail identifying a local Muslim who did interfaith work as the person of interest they were photographing at the 2002 event.

Third, the FBI needs no suspicion of wrongdoing to open a preliminary investigation and deposit information in a “domestic terrorism file,” and full investigations can drag on for years, even when there is no evidence of actual or potential criminal activity. For instance, a six-year investigation was carried out into a PETA member even though the Bureau “never identified any federal crime he had committed, was committing, or might commit in the future.” The standards for keeping people and groups under surveillance have become so degraded that instances of monitoring that the Inspector General finds “factually weak” are still legal.

Fourth, it is a good deal easier to open an investigation than to close one, given the proliferation of databases in which information is deposited and agencies that are doing the depositing. People who get placed on watch lists such as the "no fly" list or VOTOF (Violent Gang and Terrorist Offender File) are continually delayed and questioned at airports, even after the FBI field office investigating them requests they be removed from a particular list.

Finally, we learn how important it is to have effective oversight of the growing surveillance complex. To understand the implications of “war on terrorism” spying for our First Amendment and privacy rights, we need more than a report into how the FBI handled a handful of cases. After all, we now have the NSA, the Defense Department, the CIA and an array of other federal, state, and local agencies and private contractors engaged in the domestic spying business in secrecy and with virtual impunity. Who is watching them?

Here in Massachusetts we will have the opportunity to push for a surveillance oversight and privacy protection bill in the new legislative session. Stay tuned for more information.

No comments: