This morning, the Washington Post reported on some deeply disturbing accusations against the Federal Bureau of Investigations. Last fall, FBI agents armed with twenty-three subpoenas raided seven homes, mainly in the Midwest. The targets of this “mysterious, ongoing nationwide terrorism investigation” had one thing in common: they were all either involved with the peace movement or were politically active labor organizers. The bureau will not comment on what is being specifically investigated, though some court documents indicate the FBI is looking into “material support” of Colombian and Palestinian groups designated as terrorist organizations by the government.
The New York Times reported another troubling story yesterday—FBI agents have been given significanlty more leeway to “search databases, go through household trash or use surveillance teams to scrutinize the lives of people who have attracted their attention.”
In light of this news, it’s especially surprising that an extension of FBI director Robert Mueller’s term is barely being contested in the Senate. As we noted last week, President Obama is having so much trouble getting people appointed to administration posts that even the US Fish and Wildlife Service has been without a permanent director for months. But Mueller is running into few roadblocks.
Most cabinet appointees serve indefinitely, until they either resign or are replaced by the president. However, Congress imposed a ten-year limit on the FBI director’s term in 1976 following the Church Committee investigation of J. Edgar Hoover’s forty-eight-year reign, which revealed shocking abuses of power: illegal wiretaps, the infiltration of antiwar and civil rights groups, spying on members of Congress, a smear campaign against Martin Luther King Jr. and several other serious transgressions.
Though Mueller was reportedly looking forward to retirement this September when his term expired, President Obama asked him to serve two additional years. “Given the ongoing threat facing the United States, as well as the leadership transitions at other agencies, I believe continuity and stability at the FBI is critical at this time,” Obama said last month when he asked Congress to pass a bill extending Mueller’s term.
There are constitutional questions about whether Congress, not the president, can formally extend a cabinet term, but much more grave concerns exist beyond that. Mueller was sworn in only one week before the September 11, 2001, terror attacks, and has overseen a vast expansion of the FBI’s domestic surveillance powers under the Patriot Act in the intervening years. Should he be the first FBI director since Hoover to break the ten-year limit?
During Mueller’s appearance in front of the Senate Judiciary Committee last week, only Senator Al Franken raised this question. Mueller—who had received largely softball questions and lengthy praise to that point—became visibly uncomfortable when Franken started off by telling him that “your department has been heavily criticized over the last ten years for significant misuse of the department’s surveillance powers and for other major civil liberties violations.”
Franken then asked about the findings of the Justice Department’s inspector general in 2007 that the FBI engaged in serious abuse of national security letters, which are essentially subpoenas issued by the FBI that are not subject to judicial review.
Mueller defiantly responded that “I do not believe that we have abused our powers in any way, with maybe one or two isolated examples, and the additional authorities that have been given us under the Patriot Act over the years. And I don’t believe the IG has found such substantial misuse.”
In fact, the inspector general, Glenn Fine, found exactly that. Testifying before the House Judiciary Committee in 2007, Fine said the FBI may have violated the law 3,000 times since 2003 by collecting telephone, bank and credit card records of people inside the United States, including 600 violations that could be “cases of serious misconduct” involving national security letters.
Franken followed up with another blistering question. “A number of civil liberties groups have raised serious questions about the FBI’s misuse of the material witness statute, mishandling of the terrorist watch lists, and infiltration of mosques and surveillance of peaceful groups that have no connection to criminal activity,” he said. “If your term were extended, do you believe that you would be in a position to give these concerns a fresh airing?”
Mueller, once again indignant, said that “I’m not certain it needs a fresh look because I am very concerned whenever those allegations arise.” He said then that when the FBI infiltrated religious institutions “we have done it appropriately and with appropriate predication.”
Mueller did not mention a class-action suit filed in February by the American Civil Liberties Union and the Council on American Islamic Relations, which claims that an FBI agent infiltrated several California mosques and “indiscriminately collect[ed] personal information on hundreds and perhaps thousands of innocent Muslim Americans in Southern California.”The suit charges that the agent collected info on the sex lives of mosque members and attempted to provide them illegal drugs, and that his rhetoric about “jihad and armed conflict” disturbed their prayer services.
These serious abuses—and Mueller’s resistance to admitting they even occurred—apparently only bothered Franken, because no other member of the Judiciary Committee raised them. The committee will vote to pass Mueller’s extension onto the full Senate on Thursday, and most observers expect an easy vote. (Franken’s office did not reply to requests about whether he will support the extension). If the Senate is serious about providing a check on executive power, this would be a nomination to question.