Emboldened by the "success" of its preventive war in Iraq, the Bush
Administration appears to be expanding its preventive law-enforcement
strategy at home.
Because September 11 "changed everything," it hasn't always been easy to
find an objective yardstick by which to judge the Bush Administration's
tactics in the "war on terrorism." But the Admin
Spring officially began on Thursday, March 20, but the first real spring
day in Washington was Saturday, a blindingly sunny day, flowers just
beginning to peek out, the National Kite Festival o
In early February, the Center for Public Integrity disclosed a leaked
draft of the Bush Administration's next round in the war on
terrorism--the Domestic Security Enhancement Act (DSEA).
They say history repeats itself. But usually not quite so quickly.
There you go again, Mr. Ashcroft.
Rights lost by some will one day be lost by all.
The FBI has come under harsh criticism in recent weeks for its failure
to act on information that might have enabled it to thwart the September
11 attacks. Rather than deny the criticism, FBI Director Robert Mueller
has embraced it (easy for him to do, since he didn't start on the job
until September 4) and then exploited it to argue that the bureau needs
more power, more resources and fewer restrictions.
Both the criticism and the remedy are misguided. The dots that everyone
now says should have been connected consist of a few leads spread over a
three-year period: a 1998 memo from an FBI agent in Oklahoma suspicious
about some Middle Eastern men taking flying lessons; a July 2001 memo
from a Phoenix agent speculating that Osama bin Laden could be sending
terrorists to flight schools here; and the August 2001 arrest of
Zacarias Moussaoui for acting suspiciously in flight school. Viewed in
hindsight, each points inexorably to September 11. But there is a world
of difference, as any gambler, stock trader or palm reader will tell
you, between perceiving the connections after and before the fact. On
September 10 these three bits of information competed for the FBI's
attention with thousands of other memos, leads and suspicious events
pointing in thousands of other directions. We are engaged in a
nationwide session of Monday-morning quarterbacking.
The remedy is worse. Shifting resources to fighting terrorist threats
makes sense, but freeing the FBI from the minimal restrictions it has
operated under in the past does not. The guidelines governing the FBI's
domestic criminal investigations, which do not even apply to
international terrorism investigations, had nothing to do with the FBI
missing the September 11 plot. And it is likely that the changes in the
guidelines announced by Attorney General John Ashcroft will actually
reduce the FBI's effectiveness in fighting terrorism.
The old guidelines were sparked by revelations that in the 1960s and
'70s, the FBI's COINTELPRO initiative targeted perfectly lawful antiwar,
environmental, feminist and civil rights groups for widespread
monitoring, infiltration and disinformation. The guidelines sought to
remedy the FBI's proclivity for indulging in guilt by association and
conducting intrusive and sweeping investigations of political groups
without any criminal basis. They sought to focus the FBI on its mission,
which, contrary to popular perception, has always been to prevent as
well as to investigate crime.
But even under the guidelines abuses continued. One of the most
prominent involved an investigation of the Committee in Solidarity With
the People of El Salvador (CISPES) from 1983 to 1985. Under the rubric
of counterterrorism, the FBI monitored student rallies, infiltrated
meetings and identified attendees at CISPES events. In the end, the
bureau had collected information on 1,330 groups--including Oxfam
America, the US Catholic Conference and a Cincinnati order of nuns--but
no evidence of crime.
Such investigations are likely to be commonplace in the post-
September 11 era. Ashcroft's guidelines expressly permit the FBI to
conduct some investigations without even a shred of information about
potential criminal conduct. And Congress has so expanded the definition
of federal crimes that requiring a criminal basis is not enough to
forestall political spying. Federal antiterrorism laws of 1996 and 2001
now make it a crime to provide any associational support to foreign
groups we designate as terrorist, even if the support has no connection
whatever to terrorist activity. Under those laws, the CISPES
investigation would have been legal, on suspicion that CISPES was
supporting the Salvadoran rebel movement.
The combined effect of the expanded statute, loosened guidelines and
increased counterterrorism personnel at the FBI will be to bring in
exponentially more information about the populace than the FBI has ever
had. Some of the additional information obtained may, like the isolated
leads developed before September 11, be related to terrorist plots. But
those leads are almost certain to be drowned out by the barrage of
information about innocent political activity.
An intelligence expert on a recent panel with me claimed that what we
need now is "all-source intelligence fusion," meaning a group of
analysts sitting in a room analyzing mounds of data for trends and
patterns. Despite its techno-trendy title, all-source intelligence
fusion is no substitute for good relations with the affected
communities. If the FBI has information that the threat is likely to
stem from Arab sources, it should be building bridges to the millions of
law-abiding Arabs--instead of profiling Arab students without cause,
holding Middle Easterners without charges and selectively registering
all immigrants from Arab countries. You don't build bridges by
infiltrating and monitoring legitimate political and religious activity.
As the shock of September 11 fades, courts are standing up for civil
I am beginning to suspect that Nation readers may not fully appreciate the challenges Attorney General John Ashcroft faces. What would you do in his place? Your intelligence agencies had no advance knowledge of the September 11 plot and don't appear to know much more about future attackers. Airport security screeners are letting test bombs and guns pass at alarming rates, and your immigration agency is so hapless that it issued visa extensions to two of the hijackers six months after they died flying planes into the World Trade Center towers. When you consider the threat from their side and the incompetence on ours, it's understandable that Ashcroft has cast his net so wide. He's shooting in the dark. In fact, the expanse of his net is probably inversely proportional to the depth of the intelligence he has received.
But just as with the terrorists themselves, understanding Ashcroft's motives does not justify his actions. To date, despite the thousands of Arab and Muslim immigrants arrested, searched, profiled and questioned, Ashcroft has charged only a single person--Zaccarias Moussaoui--with any involvement in the attacks of September 11. And he was arrested before the attacks occurred. Such broad-brush tactics are unlikely to succeed, for they give notice to potential targets, allowing them to evade detection while alienating the very communities we must work with to identify potential threats who may be living among them.
Ashcroft has shown no signs of getting closer to his target. And the less he finds, the wider he sweeps. He recently announced that he was extending to 3,000 more people his much-criticized initiative to subject male immigrants from Arab countries to "voluntary" interviews, despite the fact that the initial interviews have led to no further charges in the investigation. And having learned how easy it is to use immigration law as a pretext for criminal law enforcement when you lack probable cause, the Justice Department is now preparing to enlist local police officers to help enforce immigration law, a disastrous proposal likely to drive immigrant communities even deeper underground.
The lengths to which Ashcroft will go was revealed most recently by his indictment of Lynne Stewart, a 62-year-old New York attorney who has made a career of courageously taking on clients for whom few other lawyers are willing to risk their reputations. Her most notorious such case was defending Sheik Omar Abdel Rahman in his 1995 criminal trial for conspiring to bomb the tunnels into Manhattan. Now she's charged with providing "material support" to the sheik's organization, the Egypt-based Islamic Group, largely by abetting communications between the sheik--whom prison regulations prohibit from communicating with virtually anyone in the outside world--and others in the group.
The government simultaneously announced that it will make Rahman its test case for its unprecedented initiative to listen in on attorney-client communications. Confidential exchanges with lawyers have long been sacrosanct, because they are critical to any fair legal process. In the past, they could be intruded upon only with a warrant based on probable cause that the communications were intentionally furthering criminal activity, but the new regulations permit monitoring without a warrant or probable cause. But under regulations issued after September 11, the government claims the authority to monitor attorney-client communications without establishing probable cause for believing that the communications are being used for illegal ends, and without obtaining authorization from a judge.
Most troubling, Ashcroft is prosecuting Stewart although she has not been charged with furthering any illegal or violent activity of the Islamic Group, a wide-ranging Islamic political movement that engages in a great deal of lawful activity in addition to terrorism. While many have criticized the government for targeting a lawyer, of far more concern is its criminalization of speech and associations having no connection to terrorism. Unable to link Stewart to any actual terrorist activity in any way, Ashcroft has resorted to guilt by association. As a US citizen, Stewart will at least have an opportunity to defend herself in a public trial. Not so the hundreds of noncitizens still being detained on immigration charges in connection with the September 11 investigation, many long after their immigration proceedings have concluded. Under orders from Ashcroft, they are being tried in secret proceedings closed to the public, press, legal observers and family members.
In a major setback for the Ashcroft agenda, US District Judge Nancy Edmunds on April 3 declared the closed proceedings unconstitutional. She ruled that open trials are a fundamental feature of our justice system and that any closure must be carried out not in the sweeping manner that Ashcroft so favors but through means narrowly tailored to protect national security interests. The government has appealed, arguing that to act in a more narrowly tailored fashion might tip off Al Qaeda to what we do and don't know. But one has to wonder whether the government's real concern isn't that opening the proceedings might tip off the public to just how wildly John Ashcroft is shooting in the dark.