The killing of Osama bin Laden and other high-level Al Qaeda leaders has helped persuade President Obama to withdraw 30,000 troops from Afghanistan by next summer. According to the president, the “tide of war is receding”—at least in Afghanistan. But what about here at home? It’s been almost ten years since Al Qaeda’s attacks on the World Trade Center and the Pentagon. The government responded by adopting, in short order, extraordinary measures to prevent another attack. But if the tide of war is receding, shouldn’t we be reconsidering the sacrifices in our liberties that we made to fight that war?
In fact, there seems to be little recognition that, on the home front, the tide of war is receding. In May Congress reauthorized, for four more years, three controversial provisions of the Patriot Act, rejecting all proposals to add safeguards. The provisions permit the government to obtain “roving” wiretaps without identifying the person or the phones to be tapped; demand records from libraries and businesses without establishing any reason to believe the target is involved in criminal, much less terrorist, activity; and use surveillance powers initially restricted to agents of foreign governments or terrorist organizations against “lone wolves” not affiliated with any such group or government.
Lost in the muted debate over these three provisions was any discussion of still more troubling Patriot Act authorizations, which were initially enacted without “sunset” clauses and have therefore never been reconsidered. These include ideological grounds for excluding or deporting foreign nationals for association with terrorist groups, expansively defined to encompass virtually any group of two or more that has ever used or threatened to use a weapon against person or property. They also include a provision that makes it a felony to advocate for human rights and peace if you do so with a “foreign terrorist organization.” (The Supreme Court upheld that statute against a First Amendment challenge last summer, in a case I argued.) And they include the authority to rely on secret evidence to freeze the assets of American charities simply by claiming they are “under investigation,” without any finding of wrongdoing. (In another case I am litigating, a federal court has declared that procedure unconstitutional, but the Obama administration continues to defend it.)
In June the New York Times reported that the FBI is about to relax yet again the rules that govern its national security investigations. Those guidelines, promulgated in 1976 in response to widespread abuses in spying on civil rights and peace groups, have been watered down numerous times, before and after 9/11. Now, according to the Times, Attorney General Eric Holder is set to loosen the reins even further. The new rules will allow FBI agents to rummage through citizens’ trash, conduct searches of computer databases and repeatedly use surveillance squads to track people without any suspicion of individual wrongdoing or court approval.
These “reforms” come on the heels of evidence that even under the old rules, the FBI overstepped its bounds. According to documents released in response to a Freedom of Information Act request, the bureau spent at least three years intensively investigating Scott Crow, an activist in East Austin, Texas, who has never been convicted of anything more significant than trespassing. The FBI’s 440-page file on Crow, despite being heavily redacted, revealed that agents recorded the license plates of his guests, monitored his phone calls and e-mails, fished through his trash, infiltrated political meetings he attended, subpoenaed his bank records and even asked the IRS to investigate him for tax evasion (the IRS declined). The investigation seems to have been closed in 2008. Why it was opened remains a mystery. Yet news of the Crow investigation appears to have prompted no reforms. Instead, the attorney general is ready to relax the rules on FBI spying still further.
Meanwhile, an ongoing investigation of peace activists and labor organizers in the Midwest, run by US Attorney Patrick Fitzgerald, has raised concerns that the government is once again confusing activism with terrorism, a problem it has long had. A 2010 inspector general report found, for example, that the FBI had, under the rubric of counterterrorism, investigated a social justice center in Pittsburgh, a Quaker activist, and members of Greenpeace and People for the Ethical Treatment of Animals.
These and other abuses are a predictable result of the mandate that the FBI “prevent” all terrorist acts. That unrealistic goal impels the agency to sweep broadly and to investigate intrusively even when it has no credible evidence that a person is engaged in, or planning, wrongdoing. The guidelines have been relaxed to permit just that. In the name of the “war on terror,” FBI agents have been freed to investigate any of us, “proactively.” The bureau doesn’t have the resources to investigate us all, of course. But the relaxed rules allow agents to focus on whomever they consider suspect—activists, leftists, outspoken or devout Muslims, and the like.
If history is any guide, at some point the accumulated record of misguided investigations, abusive and wasteful infiltrations, and overly aggressive deployment of informants will spur reform in the opposite direction, as Americans insist that the sacrifices in our liberties have gone too far. As yet, however, the public response has been to look the other way. In the United States the tide of war may or may not be receding, but the tide of civil liberties is still out.