The nation is engaged in a historic and vital debate these days: how much liberty must we sacrifice to attain security in the wake of the September 11 hijackings and subsequent anthrax attacks? In the name of security, Attorney General John Ashcrofts Department of Justice has implemented procedures, apparently without much criticism or resistance, for carrying out actions such as secret arrests, indeterminate detentions, and, more recently, eavesdropping on communications between arrestees and their lawyers without a court order. But hes failed to propose the one initiative that would substantially increase liberty and public safety, and would do so almost instantly: ending the war on drugs.
Since the Nixon administration, the federal government, aided by local law-enforcement efforts in all 50 states, has fought a "war on drugs" that has burned through an unfathomable amount of money, decimated both privacy rights previously guaranteed by the Fourth Amendment and criminal-procedure due-process rights assured by the Fifth, and turned millions of otherwise productive and law-abiding citizens into felons. Indeed, by branding so many with felony convictions, the war on drugs has deprived more citizens of the right to vote than any electoral anomalies such as Palm Beach Countys famed "butterfly ballot" in the last presidential election.
Ending the war on drugs (while leaving in place laws that regulate prescription drugs) would accomplish three things:
-- The price of currently illegal narcotics and hallucinogens which have financed terrorist efforts around the world would plummet. Its widely recognized that terrorist groups all over the globe support their causes largely from the proceeds of narcotics traffic. Indeed, in his remarkably eloquent, insightful, and nuanced November 10 speech before the United Nations, President Bush noted that the Taliban government has supported itself at least in part by "dealing in heroin." Just a few minutes later, he said that "every United Nations member has a responsibility to crack down on terrorist financing." Yet Bush failed to make the connection between the two. There is only one quick, sure-fire way to eliminate the use of drug money to finance terrorism: make the commodities legal. Overnight, such a step would eliminate the inflated prices paid by the Western world for black-market drugs.
-- Much of the pressure on citizens constitutional rights in recent decades would evaporate. Its bad enough that we must tolerate unprecedented incursions into our privacy rights at airports, on the telephone, on the Internet, at traffic stops and road blocks, and elsewhere. But we should no longer tolerate the specter of police breaking down citizens doors to round up pot smokers and stopping cars on the New Jersey Turnpike looking for cocaine. It is one thing to endure a pat-down search on a street corner because police are looking for anthrax; it is quite another when the officer is looking for a small glassine bag containing some euphoria-inducing substance that people use voluntarily and knowingly.
-- Precious resources deployed to eliminate what John Stuart Mill called "self-regarding conduct" activity that gives pleasure, and admittedly in some cases pain, to those who engage in it, but does not hurt anyone else could be re-directed to the war on terrorism. We must increase the number of law-enforcement people participating in what almost all Americans agree is a war that must be won, without increasing the total number we must hire and pay. We dont need more FBI agents and cops; rather, we need current law-enforcement professionals to do more productive things than busting drug users and dealers. Our vast foreign-intelligence operation, which now tracks drug smugglers, could be put to much more productive use. Indeed, there is already talk of taking drug law enforcement away from the FBI and placing it with another agency. It was shifted to the FBI only a few years ago from the then quasi-independent but corruption-ridden Drug Enforcement Administration. Better now just to end the volleyball game and relegate the whole effort to historys dustbin, where it belongs.
The war on drugs has been enormously costly and self-destructive. The terrorist assault on our homeland should, at long last, focus our attention and our resources on the things that really count. We can no longer afford to conduct a war on drugs that drains scarce public resources while assaulting our own citizens rights. As we look around for ways to enhance security while preserving liberty, we need to remember the observation suggested by the old Pogo comic strip: "We have met the enemy, and it is us." We need to focus on the real enemy. The war on drugs should end.
-- Benjamin Franklin, Historical Review of Pennsylvania, 1759
At some level of danger to life and property, even people strongly committed to civil liberties -- and not everyone is -- are prepared to sacrifice some privacy, freedom of movement, and convenience to greater security.
-- Harvard Law School professor Philip B. Heymann, Boston Globe, 9/15/01
On Tuesday, September 11, not long after the terrorist attacks on the World Trade Center and the Pentagon, John Perry Barlow sent a message to the nearly 1000 people who regularly receive his "BarlowFriendz" e-mails. The contents were what might be called typical Barlow at an atypical moment. A well-known Internet libertarian and former lyricist for the Grateful Dead, Barlow was not about to temper himself, even during those first awful, horrifying hours.
"This morning's events are roughly equivalent to the Reichstag fire that provided the social opportunity for the Nazi take-over of Germany," Barlow wrote. "I am *not* suggesting that, like the Nazis, the authoritarian forces in America actually had a direct role in perpetrating this mind-blistering tragedy.... Nevertheless, nothing could serve those who believe that American 'safety' is more important than American liberty better than something like this. Control freaks will dine on this day for the rest of our lives." He closed with this: "And, please, let us try to forgive those who have committed these appalling crimes. If we hate them, we will become them."
Barlow's message was many things: overwrought and outrageous, to be sure, but also important -- even prescient, given the fearful, censorious atmosphere that has wrapped around us like a thick blanket during the past two weeks, both comforting and suffocating. As Barlow quickly learned, it also became a prime target for precisely the kind of authoritarianism he'd warned of. "Merely by calling for forgiveness for the bombers," he said, "I've received a death threat. I've received some extremely ugly e-mail." People who e-mailed him to say they agreed with him, he adds, were quick to interject that they didn't want to be identified.
"This is what totalitarianism is really about," Barlow says. "It's not the imposition of dictatorial will on a population by a dictator, it's the imposition of dictatorial will on a population by the population itself. Not that it's going to stop me, but in much of America right now, it takes a lot of courage to speak your mind if you're not willing to go to war against whoever the enemy might be."
The purpose of terrorism is to terrorize. To that extent, at least, the hijackers have won a temporary victory. Surveys taken in the immediate aftermath of the attacks on New York and Washington show that though Benjamin Franklin may have eloquently stated the American ideal, Philip Heymann -- and John Barlow -- have a better sense of the public mood. In the current environment, people are all too willing to give up their "essential liberty. "
Take, for instance, a poll conducted by ABC News and the Washington Post on September 13, in which 92 percent of respondents said they would support "new laws that would make it easier for the FBI and other authorities to investigate people they suspect of involvement in terrorism." More ominously, support dropped only slightly, to 71 percent, when people were asked whether they were prepared to give up "some of Americans' personal liberties and privacy."
Another poll, conducted by CBS News and the New York Times on September 13 and 14, found much the same thing. By a margin of 74 percent to 21 percent, respondents agreed that "Americans will have to give up some of their personal freedoms in order to make the country safe from terrorist attacks." Even when asked whether they would be "willing or not willing to allow government agencies to monitor the telephone calls and e-mail of ordinary Americans on a regular basis," an eye-catching 39 percent were willing, and 53 percent were not -- hardly a ringing affirmation of the right to be left alone. And it gets worse: this week, a poll by the Siena College Research Institute found that one-third of New Yorkers would favor internment camps for "individuals who authorities identify as being sympathetic to terrorist causes."
Civil liberties are in grave danger today, perhaps as they have been at no other time in our history. The "war" metaphor President Bush has chosen to describe the events of September is apt, given the seriousness and deadliness of the attack against us. But, as many others have observed, it is a war of a very different kind, with no clearly defined enemy, no hard-and-fast objective, no obvious endpoint -- a miasma pervaded by paranoia and suspicion. In that kind of atmosphere, the spirit of freedom -- which always takes a beating during wartime -- is fragile and vulnerable.
Though government officials from the president and Attorney General John Ashcroft on down have paid lip service to civil liberties, and though the media have focused on the fate of freedom with unusual vigor and perseverance, the news coming out of Washington, and from across the country, is chilling. Repressive new immigration and wiretapping laws are under consideration in Congress. Arab-Americans are being harassed and attacked. Music is being censored. Television personalities are apologizing for speaking their minds.
No sane person would object to more-stringent security at airports -- although such common-sense steps as installing better doors to protect pilots from terrorists would do more than screening passengers who look vaguely Arab, or banning plastic knives. Trampling on the Constitution is another thing altogether.
In a mind-boggling column for the New York Post last week in which he labeled foreign-born Middle Easterners a potential "fifth column," John Podhoretz wrote: "Leftist civil libertarians and right-wing anti-government types can do their part ... to protect Muslims and Arab-Americans -- with a generous display of silence and understanding when it comes to the new surveillance techniques being adopted by law enforcement. Their standard-issue complaints ring hollow at a time of war, when civil liberties must necessarily be curtailed to some degree."
Obviously, fighting terrorism worldwide will not be sufficient to save the United States as we know it. If Podhoretz's sneering dismissal of constitutional protections is any indication, we're going to have to fight repression at home as well.
The war on terrorism declared by our government is part of a profound struggle between rationalism, human liberty, and modernity on the one hand, and fundamentalist religion and traditionalism on the other. It is, in short, a war between the Enlightenment and the medieval world. Though US policy in Arab and Muslim societies is hardly above reproach, it should be obvious to all Americans that the West cannot afford to lose the war against terrorism -- any more than we could afford to lose to Nazism or global communism.
In fighting this war, though, we would be well advised not to trample too heedlessly on the Bill of Rights -- emblematic, as it is, of the Enlightenment itself, with its emphasis on human liberty and autonomy. During virtually every dangerous moment in our history we have taken actions that we later came to regret: the Alien and Sedition Acts, used by President John Adams in the 1790s to imprison domestic critics and expel foreigners; the suspension of habeas corpus in the 1860s, during the Civil War; the Palmer raids against leftist groups during and after World War I, around 1920; the incarceration of Japanese-Americans during World War II, in the 1940s; the anti-Communist witch hunts of the McCarthy era, in the 1950s; and the abuses of J. Edgar Hoover's FBI, which waged a secret, unconstitutional campaign of surveillance and disruption against the civil-rights and antiwar movements of the 1960s.
Then there was Richard Nixon, who occupied a category all to himself. The break-in at Democratic Party headquarters at the Watergate Hotel, the pilfering of antiwar activist (and Pentagon Papers leaker) Daniel Ellsberg's psychiatric records, the use of the Internal Revenue Service to harass political enemies -- Nixon's presidency was a constant, ongoing war against liberty. It was a war that ultimately resulted in his near-impeachment and, in 1974, his resignation.
Fortunately, to judge from the outcry by civil libertarians during the past few weeks, it appears that we have learned from the past. Unfortunately, we may be doomed to repeat it anyway. Support for freedom diminishes in the face of danger. What takes its place is a desire for safe, non-threatening conformity. It's understandable, given the current crisis, that President Bush is enjoying an unprecedented 90 percent approval rating (according to a CNN/USA Today/Gallup poll). But it's chilling that the six percent who continue to disapprove of Bush's performance are being singled out as unpatriotic or worse.
Consider what happened to Bill Maher. Last week, on his ABC program, Politically Incorrect, Maher said something, well, politically incorrect -- namely, that in some past military campaigns, US forces "have been cowards lobbing cruise missiles from 2000 miles away." He continued: "That's cowardly. Staying in the airplane when it hits the building, say what you want about it, it's not cowardly." The outcry was so fierce that Maher apologized, saying his views "should have been expressed differently" and that he should have aimed the "coward" charge at politicians rather than American troops. But that didn't stop Sears, Roebuck and FedEx from canceling their advertising, thus threatening the future of his show. Obviously, advertisers have a First Amendment right to withdraw their patronage; but in this case, it's the power of corporate money, not ideas, that is at issue. And that was just the beginning.
Clear Channel Communications, which owns the country's largest chain of radio stations, reportedly sent out a memo urging that its affiliates not play as many as 150 songs that could be considered offensive under the circumstances -- including John Lennon's "Imagine," which Neil Young managed to perform movingly and without controversy during last Friday's national telethon.
Massachusetts congressmen Marty Meehan and Richard Neal offered some mild criticism of Bush's performance in the hours immediately after the bombing -- and, according to Boston Globe columnist Scot Lehigh, Meehan received threats serious enough to warrant police protection.
In Texas, the FBI shut down Arabic Web sites, prompting, according to Reuters, charges of conducting an "anti-Muslim witch hunt."
In Baltimore, the Sun reported that anchors and even a weather forecaster at one TV station were required "to read messages conveying full support for the Bush administration's efforts against terrorism." When staffers objected, the message was changed to indicate that it came from "station management."
A caller to NPR's The Connection last week said he's flying the American flag not just to demonstrate his patriotism, but to ward off the animus of those who might think that he, an olive-skinned Italian-American, was an Arab.
Televised comments by those geriatric poster boys for religious intolerance, the Reverends Jerry Falwell and Pat Robertson, resulted in a double-reverse back flip that was almost funny. Falwell attributed the terrorist attacks to God's wrath, blaming the ACLU, feminists, abortion-rights supporters, and lesbians and gay men, and saying, "God continues to lift the curtain and allow the enemies of America to give us probably what we deserve." Responded Robertson: "Jerry, that's my feeling." The once-influential hatemongers' comments touched off a firestorm of criticism, prompting Falwell to apologize, layering irony upon insult. Not only did his and Robertson's rhetoric reveal an anti-modernist mindset similar to the terrorists' (minus the violence), but by being forced to say "I'm sorry," Falwell himself became a victim of the same cultural clampdown on free speech that had ensnared Bill Maher and Marty Meehan.
Indeed, the threat posed to the First Amendment right now is not so much official censorship -- that is, bans enacted by the government -- as self-censorship, a phenomenon that is far more dangerous in an age of media conglomerates than it would have been in an earlier time. Maher can't speak his mind if advertisers are going to boycott his show, which must turn a profit for ABC in order to stay on the air. A list of songs banned by one radio station is of little consequence. But when Clear Channel suggests that its nearly 1200 radio stations consider not playing certain songs, that's downright chilling.
"We're in the very murky realm of self-censorship," says Marjorie Heins, director of the Free Expression Policy Project at the National Coalition Against Censorship. Institutions such as ABC and Clear Channel "have their own First Amendment rights to decide what to produce," she says. "This only gets worrisome if this gets pervasive and widespread and goes on for a long period of time. Hopefully they'll come to their senses."
Congress has recent experience in how not to react to a terrorist attack. A year after the Oklahoma City bombing of 1995, Congress passed the Anti-Terrorism and Effective Death Penalty Act, a grotesque piece of legislation that accomplished two things. It severely curtailed the writ of habeas corpus, making it far more difficult for convicted criminals -- even those awaiting the death penalty -- to present new evidence that they'd been wrongly convicted. And it allowed the use of secret evidence in deportation cases against immigrants, which writer and civil libertarian Nat Hentoff has rightly called a "denial of fundamental due process."
It's notable how little any of it had to do with what actually happened in Oklahoma City. Keep that in mind. Over the past few years, a number of proposals to curtail fundamental freedoms in the name of security have festered in back offices in Washington and elsewhere, waiting for the right time to be pulled out of a drawer and sprung upon an unsuspecting public.
One of those times came on the evening of September 13, just two days after the attacks, when Senators Orrin Hatch (R-Utah) and Dianne Feinstein (D-California) brought an amendment to the floor that would make it far easier for government investigators to snoop on computer users. Senator Patrick Leahy (D-Vermont) protested that the bill -- which few had had time even to read -- was overly broad and fuzzy. For instance, the bill would add "terrorism" to the list of crimes for which a person could be investigated. That would seem to be a no-brainer, except, as Leahy pointed out, the bill provided no definition of terrorism. "I guess some kid who is scaring you with his computer could be a terrorist and you could go through the kid's house, his parents' business, or anything else under this language; it is that broad," Leahy observed. He added: "Maybe the Senate wants to just go ahead and adopt new abilities to wiretap our citizens. Maybe they want to adopt new abilities to go into people's computers. Maybe that will make us feel safer. Maybe. And maybe what the terrorists have done made us a little bit less safe. Maybe they have increased Big Brother in this country."
Despite Leahy's opposition, the amendment passed on a voice vote. The appropriations bill to which it was attached was approved unanimously.
The situation in Washington right now is in flux. Though few doubt that the Hatch-Feinstein amendment would pass the House, it has been largely superseded by a bill filed last week by Attorney General Ashcroft -- the so-called Anti-Terrorism Act of 2001, or ATA. The bill is being considered this week -- by Senator Leahy's Judiciary Committee, fortunately -- and could change considerably before it emerges from the legislative sausage-maker. Nevertheless, it has been the subject of wide-ranging opposition from groups that normally don't get along: like-minded organizations such as the ACLU, the Electronic Frontier Foundation (EFF), and the Electronic Privacy Information Center (EPIC) have been joined by conservative groups such as Phyllis Schlafly's Eagle Forum and the Gun Owners of America.
Among the more controversial provisions of the Ashcroft legislation are those aimed at bringing wiretapping laws into the digital age. Theoretically, this makes sense: investigators' ability to track crime should not be diminished by technological advances. Yet the legislation could give investigators a great deal more power than they have today. Under current law, for instance, officials can obtain the phone numbers called by a suspect, even without probable cause. Under ATA, investigators would be able to obtain e-mail addresses and even the Web locations a suspect has visited -- information that is considerably more revealing. The role of judges in approving such wiretaps would be diminished, thus weakening an important safeguard. "Roving" wiretaps, which follow a suspect from phone to phone rather than being placed on just one phone, would be permitted -- probably a sensible move, but open to abuse. The legislation could also make it easier for federal investigators to use a controversial piece of software known as "Carnivore," which would allow them to intercept enormous quantities of e-mail and other information from Internet service providers, even from innocent customers not suspected of any wrongdoing. Customers would have no choice but to trust the feds not to exceed the scope of their warrants. By contrast, traditional wiretapping targets just those customers covered by a warrant granted by a judge. It also requires the intervention of the phone company, which, at least in theory, provides an extra layer of protection.
Because ATA, the Hatch-Feinstein measure, and other proposals have been drafted so hastily, groups such as the ACLU, EFF, and EPIC have been forced to react more quickly than they normally would, issuing broad statements of principle with details still to come. On Monday, for example, EFF issued a statement that said in part, "We fully support legitimate government efforts to bring the perpetrators of these attacks to justice. Yet as a watchdog for civil liberties, we are skeptical of claims that the only way we can increase our security is giving up our freedoms."
If only ATA were the worst of it. Time magazine reports that the Bush administration "is considering the establishment of special military tribunals" so that suspected terrorists "could be tried without the ordinary legal constraints of American justice." This is in addition to a policy change Ashcroft has already announced that expands the government's power to detain immigrants suspected of crimes. A recent article in the Wall Street Journal on how Europe deals with terrorism raised a cafeteria full of repressive possibilities: issuing national identification cards, placing closed-circuit television in public places, and holding suspects without charge for days on end. "Biometrics" technology could be used to identify people through the unique characteristics of their eyes or other facial features.
Other proposals are lurking in the bushes. Just last month, Senator Richard Shelby (R-Alabama) withdrew what critics have called the "Official Secrets Act" -- a bill that would make it a felony for government officials to leak virtually any classified information. (Never mind that it's already a crime to leak information that would compromise national security.) Former senator Daniel Patrick Moynihan has spoken often of government's excessive zeal in classifying information, as much to cover up official bungling as to protect the public. Last year Moynihan testified that the government has "enough classified material to stack up as high as 441 Washington Monuments." The Shelby legislation would only worsen this situation. As the New York Times editorialized, the bill would make it difficult to debate such important issues as the US-backed drug war in Colombia; it might even have hindered efforts to expose the Iran-contra scandal of the 1980s. Perhaps the most important example of a righteous leak concerns the aforementioned Pentagon Papers, which revealed the secret bureaucratic history of the Vietnam War. Unfortunately, Shelby has promised to introduce his miserable bill again when the time is right. And he is nothing if not persistent, having persuaded Congress to pass it last year, when it died only as a result of Bill Clinton's veto.
Certain elements in Washington have been trying for years to ban the use of encryption technology unless the government could be guaranteed a way to crack the code. Never mind that there is no evidence the New York and Washington terrorists used encryption, and that freedom fighters in other parts of the world have used it to safeguard their communications from tyrants such as Slobodan Milosevic.
Now Senator Judd Gregg (Râ€“New Hampshire) is going to try again, even though nearly unbreakable encryption technology is freely available on the Internet. Gregg, in other words, is proposing to act after the horse has gotten away and the barn has long since burned to the ground.
When encryption is outlawed, only outlaws will use encryption. Maybe making common cause with gun owners makes sense after all.
At the root of these proposals to take away some of our liberties is this terrible thing that happened to us, and the very real threat that it -- or something like it -- is going to happen again. "We're sort of in this desperate search for security, and we want everybody to be on the same page. And that is a scary thing," says Paul McMasters, First Amendment ombudsman for the Freedom Forum. "We have the right to private speech, to engage in public discussion, and to do so anonymously if we wish. Those are very important First Amendment freedoms. The danger is that we're possibly devolving into a society that is run by the tyranny of conformity."
If this is war, we have to preserve our right to express our opinions about it. Some will demonstrate in favor of peace; some already are doing so. Others -- probably most of us -- will favor military action, but will understand that, as a self-governing people, we need to do our utmost to understand what is going on and to criticize as well as support our government.
Brock Meeks brings an unusual perspective to the table. He covered the Soviets' war in Afghanistan for the San Francisco Chronicle. His pioneering online journal, CyberWire Dispatch, railed against (among other things) government attempts to curtail free speech on the Internet. Now, as chief Washington correspondent for MSNBC.com, Meeks is worrying about a war that may well affect two of his sons, both of whom serve in the Army.
"I face the prospect of going back to Afghanistan and covering my own sons' deaths," Meeks says. "I think people should not be afraid to question the motives and operations of this government in anything that puts people in harm's way. People have to not go quietly into the night. The lessons of Vietnam aren't that far removed. People more than ever are going to have to dust off those 'Question Authority' buttons and bumper stickers and put them on."
Voluntary, heartfelt unity is one thing, and it's encouraging to see after the devastation of September 11. Conformity built on social stigmatization or even threats, combined with repressive new laws, is something else entirely.
Part of the job we all have to do in order to win this war is to prevent the barbarians who seek to exterminate the Western notion of individual liberty from causing us to do a good part of the job ourselves. In American constitutional law, virtually no liberties are absolute. After all, as Supreme Court justice Arthur Goldberg once said, "The Constitution is not a suicide pact."
Nevertheless, freedom would be drastically diminished if the Bill of Rights, targeted as the result of a siege mentality, were substantially weakened. The big danger that lies ahead -- as big a danger, at least in a larger historical context, as terrorism itself -- is that we'll turn our backs on the Enlightenment.
At this time of national crisis, many Americans take some comfort in waving the flag, and rightly so. But the flag is not the only symbol of our culture of liberty.
So, too, is the Constitution.
Dan Kennedy is a media critic for the Boston Phoenix. Harvey Silverglate is the co-author of The Shadow University: The Betrayal of Liberty on America's Campuses (HarperPerennial) and a partner in the law firm of Silverglate & Good.
The FBI's culture of hostility to constitutional rights, its lack of respect for civil liberties, and its devotion to enhancing its own unaccountable power isn't likely to change much by its new director.
THE FBI IS the luckiest agency ever.
In February of this year, the Bureau suffered the humiliating disclosure that Robert Hanssen, a senior agent in its vaunted and secretive counterintelligence unit, had been spying for the Soviets and Russians for more than 15 years, and that his perfidy had gone undiscovered despite a number of clues. Three months later, the agency drew criticism from all three branches of government when it disclosed at the 11th hour that it had failed to turn over thousands of pages of investigative reports to the legal team defending Oklahoma City bomber Timothy McVeigh, causing an embarrassed Attorney General John Ashcroft to postpone McVeigh's execution for a month. And last month the Bureau admitted that an internal inventory had disclosed that hundreds of weapons and laptop computers, including at least one with classified data, could not be accounted for.
How can such high-visibility revelations of gross incompetence be deemed luck? Well, it's simple. Just as the FBI was attracting unprecedented public, media, and congressional criticism and even suspicion, these scandals suddenly popularized the notion that the FBI's problem is one of poor executive management. In fact, the real problem is the agency's culture of hostility to constitutional rights, its lack of respect for civil liberties, and its devotion to enhancing its own unaccountable power. And the confirmation last week of Robert S. Mueller III as the new director -- replacing the incompetent but Teflon-coated Louis Freeh -- isn't likely to change much.
Over the course of its existence, the Bureau has demonstrated the somber truth of a statement made, ironically, by then-director Freeh during testimony before the House Judiciary Subcommittee on Crime in June 1997. " We are potentially the most dangerous agency in the country, " he said, while trying to persuade legislators that he and his agency should be given even more power -- an undertaking at which Freeh excelled and almost always succeeded.
Last week, Freeh passed to his successor an agency as dangerous today as it was during the nearly 50-year more-terror/less-error reign of the infamous founding director, J. Edgar Hoover. Yet despite the unprecedented amount of scorn and skepticism directed toward the Bureau, Mueller's confirmation hearing was utterly uneventful. No senator seemed to have either the historical perspective or the will to ask any really tough questions. From the current spin, you would think that all the FBI really needed was a good manager, someone to do for it what Jack Welch did for General Electric; the Bureau came across as an agency more bungling than dangerous.
Nothing could be further from the truth. In seeking to promote its own peculiar notion of law and order, the Bureau is a ruthlessly efficient machine.
If Mueller's confirmation hearing was a love-fest, the tone had already been set by June's Senate Judiciary Committee hearing on " Oversight: Restoring Confidence in the FBI " (as if there had ever been a time when we had a basis for real confidence), which the committee's chairman, Senator Patrick Leahy (D-Vermont), called to examine the agency's embarrassments of recent years. Former Missouri senator John Danforth, who headed a 14-month, $17 million investigation into the FBI's conduct of the Branch Davidian siege at Waco, Texas, solemnly assured the committee that he found no evidence of serious FBI wrongdoing, other than a " lack of openness and candor " meant " to avoid embarrassment " of individuals and of the Bureau itself. " A long-standing value of the FBI is not to embarrass the FBI, " he intoned. But, he assured the senators, " I am sure that systems for managing information can be improved. " Danforth's testimony never even touched on the fundamental question of why the FBI got involved in a situation that could and should have been left to local law enforcement, and how and why the Bureau convinced then-attorney general Janet Reno that an assault on the community was essential in order to stop the alleged child sex abuse by leader David Koresh. (Reno's obsession with child sex abuse was well known from her days as Dade County district attorney, and her law-enforcement advisers knew precisely how to push her buttons.)
Even more ludicrous was the testimony of Michael R. Bromwich, former inspector general of the Justice Department, who conducted a highly publicized investigation in 1995-'97 of the fabled FBI Crime Laboratory, long touted as the premier forensic crime lab in the world. Bromwich reminded the senators that he had " rejected some of the most far-reaching allegations that had been made, including allegations of perjury, obstruction of justice, and suppression of exculpatory evidence " leveled against the lab and its forensic experts and agents.
To those with experience in defending people accused of serious crimes on the basis of testimony from FBI lab personnel, the Bromwich report was a joke. (I am currently involved in defending one such client -- Jeffrey R. MacDonald, convicted in the " Fatal Vision " murder case at Fort Bragg, North Carolina, in the 1970s. MacDonald remains in prison largely as a result of false testimony by a renegade agent in the same FBI lab whose activities were whitewashed by Bromwich. In fact, while Mueller was a higher-up at the Department of Justice in Washington, I met with him to try to get him to look into the FBI and DOJ frame-up of MacDonald, and Mueller, while cordial, made it clear that criticism of the agents and prosecutors in the case would be "a non-starter." No investigation ensued.) Bromwich's rejection of the "far-reaching allegations" is more a comment on the failure of the Bureau's internal-policing system than on the essential honesty of its agents and experts. The failure of Bromwich's "investigation" is clear when one recognizes that the person who suffered most from the affair was not one of the offending agents, but rather former FBI forensic expert Fred Whitehurst, the whistle blower without whom the lab's scandalous obstruction of justice and other crimes would never have come to light. Whitehurst was suspended and then fired as a result of his telling the truth, although he got some measure of vindication when the Bureau later settled, with a substantial payment, his lawsuit for wrongful discharge.
Leahy, too, was tepid in his criticism of the Bureau, tipping his hat to an organization that "has long been considered the crown jewel of law-enforcement agencies "but" has lost some of its earlier luster. "The Bureau has lately appeared " unmanageable, unaccountable, and unreliable," he said. Surely someone as sophisticated and well-intentioned as Senator Leahy cannot be blind to the real history of this "crown jewel," or believe it has been laid low simply by recent poor management. Is Leahy suggesting that things were better in the days when the Bureau's director exercised real managerial control -- in the Hoover era?
But even the FBI's most vociferous critics seemed to accept that the agency's failures have resulted from managerial incompetence. Few recalled, for example, the highly dubious indictment of Qubilah Shabazz, daughter of the late Nation of Islam leader Malcolm X, in a phony agency-concocted plot to kill Louis Farrakhan, the Black Muslim leader who some believe bears at least indirect responsibility for the murder of Shabazz's father. Shabazz was contacted in May 1994 by Michael Fitzpatrick, a former Jewish Defense League member who'd previously been convicted of a bookstore bombing. Fitzpatrick not only had his own beef to work off, but also testified that he'd been paid $34,000 for making secret tapes of his discussions with Shabazz and expected an additional $11,000 for trial testimony against her. It was one of the classic entrapment-cum-frame-ups for which the Bureau has become famous -- a demonstration of the damage done by the Bureau's obsession with turning scumbag criminals into witnesses against often innocent citizens.
Shabazz was lucky -- she had a good lawyer and, in the end, the FBI's case fell apart. The agency offered her a sweet plea bargain to prevent further scrutiny of its conduct: Shabazz, who could have spent 90 years in prison had she been convicted of hiring a hit man, instead agreed to three months' psychiatric counseling and two years' probation. The Bureau's shameful conduct was criticized from the right (James Bovard in the American Spectator) and the left (Clarence Page of the Chicago Tribune), but nothing much ever came of it. Yet the technique used was a shockingly common one for the Bureau, a result not of administrative failure but rather of a coarse disregard for citizens' civil liberties and such niceties as truth.
People like Shabazz -- troubled and down on her luck -- have not been the Bureau's only victims. Even the powerful are not immune. Most have forgotten the travails of E. Robert Wallach, a friend of former Reagan-era attorney general Edwin Meese III. Wallach was convicted in 1989 of white-collar crimes in the so-called Wedtech case. His conviction was reversed in 1991 by a federal appellate court, which decried the FBI's cover-up of perjury by its main witness. (Closer to home, the Bureau's Boston office in recent decades conducted a veritable reign of terror, including the conviction of innocent citizens, with the collaboration of the Whitey Bulger gang. The FBI's apologists would pass this off as just a few "rotten apples in the barrel." In fact, however, it's the barrel that's rotten.)
Many of Freeh's touted successes simply offer more evidence of the Bureau's rapacious grab for power. In the aftermath of every dramatic incident of domestic "terrorism," Freeh and the FBI proved themselves adept at exploiting momentary public and congressional panic to get repressive legislation enacted. Consider the Orwellian-sounding Digital Telephony and Communications Privacy Improvement Act, passed in 1994 in the wake of the World Trade Center bombing. It requires manufacturers of telecommunications equipment to make their products wiretap-friendly by following FBI guidelines. In effect, the Bureau obtained the power not only to force private industry to help spy on unsuspecting customers (also known as American citizens), but also to impede technological progress in terms of both efficiency and privacy in the service of facilitating government eavesdropping. Likewise, Freeh and the FBI have vociferously opposed unfettered distribution of sophisticated encryption systems, on the theory that unless the Bureau is able to crack every code, communications might ensue that the FBI will not be able to monitor.
Similarly, in the aftermath of the 1995 Oklahoma City bombing, the Bureau forced additional "anti-terrorist" legislation through Congress that authorized "roving wiretaps," which follow a target from phone to phone, thereby incidentally eavesdropping on the conversations of many more people. And, of course, there's the infamous Anti-Terrorism and Effective Death Penalty Act of 1996. It decimated the writ of habeas corpus, a venerable legal device (dating back to the Magna Carta of 1215) for obtaining judicial review of unlawful imprisonment long after trial. As a result, convicts who could show substantial evidence of innocence are now being rushed to the death chamber -- a convenient way to avoid, among other things, unsettling probes into the accuracy of FBI forensic-lab technicians and the veracity of informant witnesses-for-hire.
A glimmer of the real FBI came through the other day. Massachusetts congressman Barney Frank learned that a letter he'd written in 1989 about some immigration legislation he was sponsoring had landed in FBI files, stamped secret. The files also contained a report from a "highly knowledgeable source" that Frank's legislation had been discussed at a public meeting in 1989 at the UN Plaza. Frank's letter was discovered in FBI files as a result of a request filed by the Los Angeles Times some 15 years ago under the Freedom of Information Act and just recently answered. (Ironically, much of the Bureau's spying on Americans in search of "disloyal" citizens such as Frank was headed by none other than indicted spy and confessed traitor Robert Hanssen. The notion that Hanssen was monitoring Frank's loyalty to the country tells us more than we want to know about FBI culture!)
Robert Mueller, a former Boston US attorney, Justice Department official, and career prosecutor, is tough, intelligent, and incorruptible. This is his well-earned reputation, and since I know him and have defended the accused in cases he has prosecuted (see "The Real Bob Mueller," TJI, July 19), I can corroborate it from personal experience. However, he lacks a fourth quality that is vital for the next FBI director -- a deep skepticism of an institutional culture that fails to recognize the existence of values more worth defending than the Bureau's notion of law and order. Some means are unacceptable, regardless of how important the Bureau believes the ends to be. There are bad guys (or those the FBI thinks are bad) to get, but there is also a Bill of Rights to protect and even nurture. Much has changed in the country since Hoover's death, but too little fundamental change has taken place within the FBI. This sad truth is demonstrated daily when agents and executives who work out of the Bureau's main headquarters in Washington enter and leave the J. Edgar Hoover Building.
Harvey A. Silverglate, a partner at the Boston law firm of Silverglate & Good, writes about criminal law, students' rights, and civil liberties. He is also the co-author of "The Shadow University: The Betrayal of Liberty on America's Campuses" (HarperPerennial, 1999) and co-founder of the Foundation for Individual Rights in Education. He can be reached at firstname.lastname@example.org.