Statement of James X. Dempsey Deputy Director Center for Democracy & Technology before the House Committee on the Judiciary Forum on National Security and the Constitution

January 24, 2002

Mr. Conyers, members of the Committee, thank you for the opportunity to testify today at this important forum. We commend you for beginning the process of Congressional oversight of the nation's counter-terrorism programs and their implications for civil liberties. We urge you to continue this process and we urge the Chairman to join with you in conducting an ongoing series of forums, investigations and hearings to examine how our government is responding to the September 11 attacks and the threat of future terrorism.

At your invitation I will be focusing today on the history of FBI counterintelligence investigations and its relevance to the government's response to September 11. At the outset, I must stress the gravity and difficulty of the task facing the FBI today. Sometimes those who criticize governmental actions in the field of terrorism or national security are accused of not fully understanding the dangers faced by our nation or being na�ve as to what is required to respond. I want to make it clear, therefore, that I believe the threat faced by our nation is grave and that the government must be provided with the resources and authorities to prevent terrorism to the greatest extent possible and to punish it when it occurs. But history shows that the surrender of liberty does not necessarily purchase security. One of the lessons of history in this country and internationally is that respect for human rights does not undermine security. To the contrary, the values in our Constitution are precisely those needed to guide us to effectively address this deadly risk.

In 1999, David Cole and I wrote a book criticizing the federal government's anti-terrorism policies. At the time, we predicted that there would be additional terrorist attacks against the United States and against U.S. interests abroad. We warned that the federal anti-terrorism effort was flawed and ill-suited to meet the terrorist threat. September 11 proved us right in the worst imaginable way. Unfortunately, we must repeat those warnings today: the latest governmental reaction to terrorism is misguided not merely because it sacrifices civil liberties but also because it does so with little attention to history, little consideration of what went wrong in the days and months before September 11 and little regard to whether the changes will be effective. In a rerun of the approach that produced the ineffective 1996 Anti-Terrorism Act, Congress and the Administration have latched onto approaches that time and again have proven both ineffective and regrettable from a civil liberties perspective.

The History of FBI Counterintelligence Practices

I already submitted to the Committee staff a short excerpt from the book David Cole and I wrote, the chapter reviewing the 75 year history of the FBI and its counterintelligence activities. I will summarize here how the FBI has gone through several phases of intelligence investigations where it lost sight of the criminal conduct and focused instead on politics or ideology.

In the 1960s and 1970s, the FBI carried out a series of domestic spying operations under the designation of "COINTELPRO." Their express goal was to disrupt, discredit and neutralize domestic protest groups. As the Church Committee later explained, "The origins of COINTELPRO [were] rooted in the Bureau's jurisdiction to investigate hostile foreign intelligence activities on American soil." Over time, this justification became more and more attentuated, and the program encompassed purely domestic organizations. COINTELPRO involved extensive surveillance of anti-Vietnam War protesters and civil rights activists, illegal break-ins, warrantless wiretaps, and efforts to get people fired from their jobs, to break up marriages, and even to foment violence within targeted groups. It included the shameful harassment of Dr. Martin Luther King.

COINTELPRO had several key characteristics: It was intended to be absolutely secret. Its tactics were never meant to see the light of day. The FBI assumed that its conclusions about individuals would never be tested by the adversarial process. COINTELPRO was not aimed at arresting those planning criminal conduct. The FBI knew that if a black bag job uncovered evidence of a crime, that information could not be used as the basis for an arrest and indictment. COINTELPRO was at base an intelligence operation cut loose from the guidance of the criminal code: it focused not on the investigation of crimes but on collecting information about legal activity. The program relied on guilt by association. Success was defined in part by how large a net could be cast, how many people could be identified as adherents of a group or movement or ideology. And in the end, one of the most important facts about COINTELPRO is this: the exercise was essentially worthless from a security standpoint. Millions of dollars were expended investigating non-violent activity.

By the mid-70s, there was a reaction against this approach, within the Justice Department, the FBI itself, the Congress and the public at large. The internal and external investigations of the abuses led to the adoption of the so-called Levi guidelines, by Attorney General Edward Levi, which set standards for FBI "domestic security" investigations. The central feature of the Levi guidelines was the criminal standard: that the FBI could initiate a domestic security/ counter-terrorism investigation only when it facts and circumstances reasonably indicated that two or more people were engaged in an enterprise for the purpose of furthering political goals through violence in violation of the criminal laws. While the guidelines were weakened by Attorney General William French Smith and were given a looser interpretation by FBI Director Louis Freeh, the criminal standard to this day remains the essential guide for FBI investigations of domestic terrorist groups.

However, the FBI retained a separate foreign intelligence and counterintelligence authority. This authority was not affected by the Levi guidelines. Foreign intelligence and counterintelligence investigations were not limited to investigations of crimes such as espionage or sabotage. Instead, without statutory authority, the FBI retained the power to investigate legal activities of citizens and non-citizens alike where those activities were carried out for or on behalf of a foreign power. This authority is defined in a separate set of Attorney General Guidelines (the so-called "FCI" or Foreign Counter-Intelligence Guidelines), the main elements of which are classified and which in any event are unenforceable.

This authority, for example, was the basis of the FBI's investigation in the early 1980s of domestic groups opposed to US foreign policy in Central America. Based on slim allegations that one chapter of one of these groups was planning terrorist activity in the US at the direction of a foreign group, the FBI opened a nationwide investigation of the Committee in Solidarity with the People of El Salvador (CISPES) and 178 other groups, collecting information in toto on 1330 groups.

While CISPES involved none of the dirty tactics of COINTELPRO, it displayed other characteristics of an intelligence monitoring investigation. It relied largely on guilt by association, expanding to cover all groups sharing the same political opinions. It was shielded from the normal mechanims of accountability and oversight. When this Committee sought information about the investigation, the FBI withheld the full story for years. The most remarkable aspect of the CISPES investigation is that it gave no priority to gathering evidence of planned terrorist activity. Indeed, in the few instances where allegations of illegal activity were obtained � false allegations it turned out � the FBI ignored them, filing them along with the latest report on a march for "Peace, Justice and Jobs."

While the CISPES investigation was still going on, the FBI opened an investigation in Los Angles of alleged members of the PFLP. Again, the investigation relied on guilt by association. It did not focus on criminal conduct, but on peaceful, political activities. And in a startling echo of COINTELPRO, the government, when it found no evidence of criminal conduct, turned to the immigration system to deport the men, explicitly in order to "disrupt" their political activity. Remarkably, the case is still going on. It previewed many of the tactics we are seeing after September 11: arrests of people not suspected of criminal conduct, the use of the immigration laws to hold and deport people, the use of secret evidence, guilt by association.

Intelligence in the Post-September 11 World

Terrorism poses a devilish problem, for politics or religion or ideology are not entirely irrelevant to terrorism investigations. After all, terrorists carry out criminal acts for ideological reasons. The challenge of terrorism investigations is how to separate the few would commit violence from the many who share an ideology. To make the problem more difficult, the government's main goal is to identify those planning violence before they take any violent action � to interdict them before they hijack the plane or set off the bomb.

There are two models of intelligence investigations: criminal intelligence and foreign or national security intelligence. The former moves towards the goal of arrest and prosecution. It expects that its tactics will be subject to scrutiny by the adversarial process. It is guided by the criminal code. The latter operates in secret. It focuses on associations among individuals. It collects information about legal activities.

In the wake of September 11, there have been many historical references to Pearl Harbor, to the internment of the Japanese-Americans, to the military tribunals convened by President Roosevelt, and to COINTELPRO and associated abuses by the FBI and the CIA. In evaluating the lessons of history, it is appropriateto ask, with reference to the reaction to September 11, how are we better off today, how are we worse off, and what hasn't changed?

What is better:

We have had strong condemnations of anti-Muslim or anti-Arab violence from the Administration, and many law enforcement agencies are committed to treating seriously any and all incidents of hate-motivated crimes.
Civil society is strong, and civil rights and civil liberties groups have been uncowed in their defense of liberty. We have a range of watchdog groups that are serving as a counterweight to the Administration. When the Attorney General said that these groups were giving comfort to the enemy, no one was deterred � instead the public treated the Attorney General's comment as an odd miscue.
We have not had anything on the magnitude of the Japanese-American detentions Both political parties have avoided anti-immigrant sentiments. Nothing has come to light that matches the magnitude of plans prepared just 15 years ago by the Alien Border Control Committee, which in 1986 circulated plans inside the DOJ calling for the creation new detention centers and massive deportations of "alien undersirables"
The FBI, by all evidence, is not involved in the dirty tricks or the fomenting of violence or the secret slandering of people that characterized COINTELPRO. A campaign like the one waged against Martin Luther King is out of the question today.

On the other hand, some things have gotten worse:

The techniques of foreign intelligence and the mosaic theory of analysis are increasingly brought to bear on the domestic scene. The FBI in both its criminal justice and foreign intelligence roles is relying on data mining techniques that sweep in large amounts of data to discern patterns of concern.
We have proposals for military courts, something not seen in over 50 years and something that runs counter to both the international human rights movement and the national commitment to use the criminal justice system to address terrorism overseas.
The CIA has been granted, indirectly, access to the powers of domestic wiretapping and the grand jury.
Particularized suspicion has been eliminated from counterintelligence investigations

Much also has not changed:

The FBI still is not subject to a legislated charter.
The government still claims the power � and the Supreme Court has endorsed the practice � to single out immigrants based on their political activities for deportation.
The FBI still pursues guilt by association and claims the power to investigate both American citizens and foreign nationals based on activities that are totally legal and in fact are protected by the First Amendment.

And some of the reforms have proven limited:

The statues that are supposed to limit electronic surveillance rarely result in judges standing in the way of government surveillance.
The utility of the FOIA as an oversight mechanism has been curtailed by the courts.

The Dragnet Approach

The PATRIOT Act greatly expands the government's ability to collect information under the rubric of investigating terrorism or clandestine intelligence activities. The legislation expanded the reach of the pen register and trap and trace statute, removed the particularity requirement from FISA, and allowed use of intelligence taps and searches to collect criminal evidence without probable cause. But onsider just one provision that received little attention in the debates: Section 215 of the Act authorizes the government to seize "any tangible things (including books, records, papers, documents, and other items)" where those items are sought for an investigation "to protect against international terrorism or clandestine intelligence activities." The subject of the order need not be suspected of any criminal wrongdoing whatsoever; indeed, the order need not be limited to the records of a particular person but may encompass entire collections of data related to many individuals.

In the past, the government could obtain a person's records from a bank, credit bureau, telephone company, hospital, or library only if there was reason to believe that the individual is engaged in some wrongdoing or that the records are evidence of a crime. Over time, Congress gave the FBI power to compel disclosure of various records for intelligence and counterintelligence investigations. Each of these authorities was carefully considered by Congress and was enacted based on a showing by the FBI that the particular category of records was especially relevant to the conduct of counterintelligence investigations. But in each instance, Congress applied a simple rule: the government had to have reason to believe that the records being sought pertained to an agent of a foreign power � an intelligence officer, for example, or a member of an international terrorist organization.

The PATRIOT Act eliminated the "agent of a foreign power" standard from all of the authorities giving the FBI access to specific categories of records in intelligence investigations, and created a massive catch-all provision, giving the FBI the ability to compel anyone to disclose any record or tangible thing that the FBI claims is relevant to an investigation of international terrorism or "clandestine intelligence activities," even if the record does not pertain to a suspected spy or international terrorist.

The implications of this change are enormous. Previously, the FBI could get the credit card records of anyone suspected of being a foreign agent. Under the PATRIOT Act, the FBI can get the entire database of the credit card company. Under prior law, the FBI could get library borrowing records only by complying with state law, and always had to ask for the records of a specific patron. Under the PATRIOT Act, the FBI can go into a public library and ask for the records on everybody who ever used the library, or who used it on a certain day, or who checked out certain kinds of books. It can do the same at any bank, telephone company, hotel or motel, hospital, or university � merely upon the claim that the information is "sought for" an investigation to protect against international terrorism or clandestine intelligence activities.

These changes permit the FBI in international terrorism cases to cast its net far wider than ever before. The FBI has historically focused far too much of its counterterrorism effort on the monitoring of overt political activity. The issue is not whether the FBI can investigate people who say that they want to kill Americans � they can clearly be investigated. The issue is whether the FBI can investigate people who merely say that they support a Palestinian state.

What was striking about the September 11 attackers is that they had no overt political inclinations � they never engaged in the type of political or associational activity that the FBI has traditionally made the focus of its counterterrorism efforts. Yet the new authorities in the PATRIOT Act will almost certainly result in broader collection of data on persons suspected of no wrongdoing and engaged only in political activity. The FBI and the other intelligence agencies are already awash in information that they cannot digest. Drawing in even more information on more innocent people is unlikely to make the picture any clearer.

Conclusion

We need limits on government surveillance not merely to protect individual rights but to focus government activity on those planning violence. The criminal standard and the principle of particularized suspicion keep the government from being diverted into investigations guided by politics, religion or ethnicity. We should focus on perpetrators of crime, avoid indulging in guilt by association, maintain procedures designed to identify the guilty and exonerate the innocent, insist on limits on surveillance authority, and bar political spying.