Conservatives are supposed to stand for personal accountability. But at the FBI, under the ultraconservative stewardship of a Republican president and attorney general, no bad deed goes unrewarded. Recent revelations that agents in Washington ignored clues of terrorist activities before September 11, and afterward covered up their incompetence, diminished what was left of the bureau's credibility, and yet promised to enhance its power. As the story of bureaucratic bumbling unfolded, 30-year-old restrictions on the FBI's authority to spy on domestic political activists, and anyone else it targets, were erased by order of the attorney general.
The guidelines on domestic spying were promulgated in the 1970s in response to Hoover-era abuses that included the surveillance and persecution of Martin Luther King Jr. Since September 11, Ashcroft seems to have been looking for an excuse to jettison those guidelines, and the FBI's incompetence gave him one. Searching for a scapegoat for the failures of his own intelligence apparatus, Ashcroft naturally lit upon civil liberty. It wasn't the self-protective, short-sighted, inefficient culture of the FBI that contributed to the mishandling of information before September 11, as FBI whistle-blower Coleen Rowley suggested in her May 21, 2002, letter to FBI Director Robert Mueller. It wasn't the management style of former Director Louis Freeh, a Clinton appointee who enjoyed the support of congressional Republicans. And it wasn't Ashcroft's own blindness to the threat of terrorism and his neglect of FBI counterterrorism programs. Instead, according to Ashcroft, the bureau was hampered by undue respect for individual rights.
He should have been laughed off the podium, but instead, the attorney general's message has been echoed by centrist and conservative commentators. They triumphantly blame a hesitancy to engage in racial profiling for the failure of FBI supervisors to even try obtaining a search warrant against accused terrorist Zacarias Moussaoui, as agents in Minneapolis requested. Evidence of such political correctness at the FBI is sparse at best. But in any case, even the staunchest critics of profiling don't suggest that law enforcement shouldn't target members of racial or ethnic minorities when there is reason to suspect them of criminal or terrorist activity; and agents in Minneapolis believed they had good reason to investigate Moussaoui. Ashcroft's supporters also point to the alleged concern of supervising agents that the warrant proposal from Minneapolis was not supported by probable cause, but Rowley claimed that a supervisor in the Washington office "deliberately undercut" the warrant proposal by altering the information in it and withholding evidence.
Meanwhile, The New York Times reported that, before September 11, agents at FBI headquarters had become skittish about submitting warrant applications in terrorism cases to the secret Foreign Intelligence Surveillance Court. But their skittishness did not, it seems, reflect scruples about probable cause: According to the Times, it followed a judicial rebuke to former Attorney General Janet Reno in the fall of 2000 questioning the bureau's integrity. The seven judges on the court charged that FBI supervisor Michael Resnick, in charge of surveilling Hamas, had been presenting them with misleading affidavits, which seems like a judicious way of saying he'd been lying to them.
But the Bush administration places no apparent premium on honesty. Officials lied to us for months about the warnings of an impending attack received before September 11. Ashcroft lies (or "misspeaks") to us now when he describes the alleged need to loosen domestic spying restrictions on the FBI. He falsely suggests that under the guidelines, FBI agents were not allowed to surf the Internet, use commercial data-mining services, or attend public functions for purposes of ferreting out terrorists. Agents, in fact, were allowed to engage in all of these activities, so long as they had a hint of criminal activity. They were also allowed to enter churches, synagogues, and mosques, when they had reason to do so. What they were not allowed to do was spy on Americans arbitrarily or engage in fishing expeditions seeking damaging information about people or groups they disliked. (You can find a comprehensive critique of the Ashcroft initiative on the Center for Democracy and Technology Web site, www.cdt.org.)
What will be the effect of renewing our reliance on racial or ethnic profiling and eliminating all restrictions on the FBI's authority to spy on us? Privacy, liberty, and activism will suffer grievously, and so will security. As several critics have pointed out, in the months before September 11, federal intelligence agencies were not hampered by a dearth of information so much as by a lack of ability to analyze the information they had. The problem of intelligence analysis will be exacerbated if the FBI busies itself collecting additional data that has no connection to terrorism, or any other criminal activity. Ethnic profiling is unlikely to help agents collect information more productively. As the unmitigated failures of the drug war have shown, profiling by race or ethnicity is not an effective form of crime control; it's simply an effective form of discrimination. It also blinds us to the risks posed by people, such as Timothy McVeigh, who don't fit the profile. El Al Airlines, often lauded for profiling passengers, doesn't simply rely on race or ethnicity: Its profile of potential terrorists reportedly includes "young single women traveling alone."
Give the FBI unchecked domestic spying powers and instead of focusing on preventing terrorism, it will revert to doing what it does best -- monitoring, harassing, and intimidating political dissidents and thousands of harmless immigrants. Law-abiding Americans have good reason to question and fear Ashcroft's latest initiative, but terrorists should be quite pleased with it.
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