A Watcher for the Watchers
In the Senate committee room, the usual scene was playing out. Senators were going on and on, often asking predictable and less-than-brilliant questions of the witnesses, and reporters at the media tables were emitting groans and feeling each other's pain. It didn't matter that this was a high-profile hearing, with FBI director Robert Mueller III appearing before the Senate Judiciary Committee for the first time after announcing a 9/11-driven reorganization, and Special Agent Coleen Rowley, the agent who wrote a blistering letter excoriating FBI headquarters for mishandling the investigation of Zacarias Moussaoui, the so-called "20th hijacker," set to testify after Mueller. As the Senators droned, pushing Rowley further into the afternoon (and past news deadlines), the journalists could not contain their irritation, which was compounded by the fact that shortly after the hearing started word arrived -- via pagers and beepers -- that President Bush planned to call for the creation of a cabinet-level Department of Homeland Security that evening. "Why are we wasting our time here," groused one reporter. "We've lost the front-page."
I could sympathize -- to an extent. Bush had trumped this much-anticipated hearing. But when Mueller was testifying, several tidbits of news were generated. For instance, when asked if he had been involved in the Justice Department's revision of FBI guidelines on domestic spying -- which loosened existing restraints -- Mueller replied, "We had individuals who consulted with and participated in discussions with the Department of Justice." Translation: the FBI director was not part of this important decision. And an exchange between Mueller and Senator John Edwards, a Democrat from North Carolina, revealed that senior FBI officials had withheld significant pieces of information about the FBI's Moussaoui investigation during a briefing of Senate staff last January.
This may not be stop-the-presses material. Still, it is information warranting notice. But it was not enough for the grouchy beat reporters who craved either fireworks between the committee and Mueller or dramatic testimony from a G-woman/whistleblower/mother-of-four. Thus, they were in no mood to listen when one senator, Maria Cantwell, a Democrat from Washington, proposed an unusual but good idea to protect civil liberties. Instead, the reporters greeted her proposal with snickers and snorts.
It did not help Cantwell that she began her remarks by claiming "a great majority of my constituents have written to me" to express dismay over the FBI's inability to coordinate its own pre-9/11 investigations. ("That would mean she received over 3 million letters," one reporter cracked.) And her queries to Mueller had a meandering feel to them. But right before her ten minutes were up, Cantwell presented the most original notion of the day. Voicing concern over the new FBI guidelines, she asked, "why not create a director of privacy and civil liberties accountability within the agency to be someone to look to be sure that the culture and the organization is adhering to the policies that protect those individual civil liberties?" She explained that many firms in the private sector have a privacy officer whose job it is to ascertain if employees are abiding by privacy rules.
What a good idea, I thought. Here was a senator who truly was adding something new to the mix. Then I looked around at the other journalists. They were rolling their eyes and smirking. The universal reaction: how naive!. This was just too far out of the box for them. No one could envision a headline: "Senator Proposes Civil Liberties Director for FBI." Silly suggestions aren't news.
But this was one of the more valuable moments of the day. (When Rowley finally appeared, she mainly reiterated the complaints of her letter and humbly absorbed the praise heaped on her by senators of both parties.) The adoption of the new FBI guidelines -- which were written by the Justice Department's office of legal policy, a shop controlled by conservative ideologues appointed by Attorney General John Ashcroft -- is a subject that has mostly gotten lost in the recent shuffle, pushed aside by news of the FBI reorganization, the new cabinet department, and the apprehension of a potential dirty bomber (an arrest overly hyped by Ashcroft). Under the guidelines, the FBI will have more latitude to investigate Americans involved in political and religious conduct who are not suspected of any crime.
Here is one example. With the old guidelines, the FBI was allowed to conduct what are known as "preliminary inquiries" -- investigations of an individual even when there is no reasonable indication of criminal activity. During such a probe, the FBI could use a host of tools -- informants, Internet searches, undercover operations, physical and photographic surveillance, and data mining -- but not mail intercepts and wiretaps. If 90 days of such digging unearthed no signs a crime had been committed or was in the works, the PI could continue only with approval from headquarters. Under the new guidelines, the PI can go on for one year without an okay from Washington. So FBI agents on their own are now able to use intrusive techniques to track Americans for a long period of time, without any clearance from HQ. This does raise civil liberties questions. If HQ is not monitoring these investigations, the potential for abuse exists.
Oh, stop being a worrywart, some might say. This ain't your father's FBI, which investigated and hounded Martin Luther King, Jr., antiwar protesters and others engaged in legal activity. Right? Well, it is true that J. Edgar Hoover is long gone. And I do not counsel adopting a harsh and overly paranoiac stance toward the FBI of today. But when it comes to enhancing police powers, caution is warranted. In January, Kris Axtman of The Christian Science Monitor wrote an article that contained troubling anecdotes about the post-9/11 FBI. For instance, on November 7, two agents showed up at Houston's Art Car Museum to investigate what they described as "anti-American activity" at the small art gallery, which had on display "Secret Wars," an exhibit on US covert operations." (The FBI subsequently deemed the museum "not dangerous.") On October 23, another pair of agents visited Barry Reingold, a 60-year-old retired phone company worker in San Francisco. His sin? At the local gym, he had busted on Bush for being a tool of Big Oil. A fellow weightlifter apparently squealed to the feds, and they came calling.
Stories like these suggest the FBI is in dire need of civil liberties sensitivity training. Say, agents start watching pro-Palestinian activists (you never know, they might be linked to Hamas) and one says at a public meeting (attended by Arab-looking undercover FBI agents), "We must do everything possible, everything imaginable, to beat back the Israeli occupatio n of the West Bank." Will that person become the subject of an investigation? Think of how those agents who fretted over an art show could construe such a remark -- which might merely be the impassioned statement of a law-abiding and peaceful citizen. It may be tough to enshrine into rules and regulations how best to respect civil liberties. But it is important to ensure that the FBI, with its new and justifiable focus on preventing terrorism, does not go too far (as it once did) or waste its time and resources by confusing political action and dissent with criminal and threatening behavior.
That's why Cantwell's proposal deserves attention. With the power of the FBI being expanded -- without increasing oversight from Congress -- the bureau ought to have an internal force that operates proactively (as the bureaucrats say) to safeguard civil liberties. An office of this sort could mount internal audits, randomly vet ongoing investigations, issue advisories, and interview agents -- to prevent violations of civil liberties. This is not an anti-FBI proposal, for such an office would help keep the FBI from reverting to its previous bad habits. In fact, when I recently discussed the new guidelines with Harry "Skip" Brandon, a former deputy chief of intelligence for the FBI, he said he thought creating an FBI civil liberties ombudsman made sense. But at the hearing, Mueller politely responded to Cantwell's idea by saying, "I would be happy to consider -- let me just put it that way -- what you are suggesting," without truly addressing the topic. In other words, "I've got other fish to fry, Senator." And none of Cantwell's colleagues seconded her sentiments.
So don't expect a stampede for a civil liberties unit at the FBI. After all, civil liberties remains a boutique-issue. But it was refreshing to witness the introduction of a new and good idea amid the self-serving verbiage of a congressional hearing. Let's hope Cantwell's press secretary doesn't encourage her to drop the matter because reporters -- moved more by impatience than ideology -- laughed at her.
David Corn is the Washington editor of The Nation.