You know times are tough for civil libertarians when they find themselves defending the FBI's intelligence operations. Confronted last week by congressional support for a new domestic intelligence agency that would assume many of the FBI's counterterrorism responsibilities, the American Civil Liberties Union was caught mouthing arguments more often heard from Attorney General John Ashcroft and FBI Director Robert Mueller. "The FBI can do the job," said ACLU legislative counsel Timothy Edgar, "if its management is reformed and coordination is improved."
Civil libertarians are now faced with the stark choice between the devil they know and the devil they don't. The ACLU and other civil-libertarian groups are coming down squarely on the side of their familiar nemesis, the FBI. But their reflexive opposition to a new domestic intelligence agency makes one wonder: How well does the ACLU know today's FBI? Thanks to the USA Patriot Act and an attorney general violently allergic to oversight of any kind, the bureau has indeed been acting like the secret spy agency that animates so many ACLU nightmares. Taking intelligence out of the clumsy and grasping hands of the FBI -- and away from Ashcroft -- could not only improve our ability to detect and prevent the next terrorist attack, but it could turn out to be a very good thing for the causes of privacy and civil liberties.
The problem with the FBI isn't that it is doing intelligence investigations. The problem is that it is doing them badly. After years of neglecting its intelligence and counterterrorism operations, the FBI met September 11 with only the shallowest knowledge of al-Qaeda's domestic activities and few agents and analysts with the skills to catch up. The result has been a series of ham-handed investigations that have ended up bruising far more people than any targeted-yet-malicious witch-hunt ever could. Without a basis of knowledge upon which to build its anti-terrorism investigations, the bureau after September 11 simply cast as wide a net as possible. Countless businesses -- from rental-car companies to pizza chains to video stores -- were asked to volunteer their customer databases to the FBI. Speculating on the possibility that terrorists could plant underwater bombs, for instance, the FBI went around the country asking scuba shops to hand over the lists of anybody who took diving lessons. The tactic came to light only because one of the people on the acquired lists happened to be an attorney for the Electronic Frontier Foundation, a privacy-advocate group.
The trouble really begins when the ham hand is at the end of an arm made powerful by law-enforcement and prosecutorial authority. Former FBI counterterrorism agents and intelligence veterans were aghast at the dull thinking behind the FBI's roundup of more than 1,000 Arab Americans in the weeks after September 11. Not only did it represent a low point in the bureau's record on civil liberties, it wasn't effective. "It's the Perry Mason school oflaw enforcement, where you get them in there and they confess," former FBI Assistant Director Kenneth P. Walton told The Washington Post last year. "Well, it just doesn't work that way. It is ridiculous. You say, 'Tell me everything you know,' and they give you the recipe to Mom's chicken soup."
Sure enough, the detentions have produced precious little of real importance. Many Arab Americans have been deported on routine immigration violations, but not one is known to have been charged with anything related to terrorism. Meanwhile, the detentions poisoned relationships with the Arab-American communities that counterterrorism agents should be depending on for information.
To be sure, a new domestic intelligence agency will not operate out of ACLU headquarters. Spies are not hired to respect people's privacy. But freed fromtheir ghetto within the FBI -- where counterterrorism is overseen by agents who have little knowledge of or respect for their craft -- intelligence agents and analysts may be able to develop the sophistication to conduct an effective investigation with the delicacy necessary to avoid stomping on citizens' rights. Moreover, they won't be able to employ the FBI's noxious combination of intelligence and rough law-enforcement tactics, such as the bureau's time-honored tradition of media leaks. Last year, for instance, FBI agents questioned a North Carolina investment banker who does business in the Middle East because of his suspicious travel records. The FBI quickly cleared him but neglected to take his name off a list of possible suspects. Shortly thereafter, the FBI leaked the list to the media. Before long, the man's name was circulating over the Internet and he was branded forevermore as a potential terrorist.
Even without the danger of the unique abuses that arise when intelligence, law-enforcement and prosecutorial power are under the same roof, a domestic intelligence agency can still go awry. The key will be establishing standards of whom the agency can target, what kind of information it can obtain and by what methods. That should be the heart of the debate Congress will take up early next year. For instance, loosening the standards set by the Foreign Intelligence Surveillance Act -- which prohibits surveillance on American citizens in the absence of probable cause that they are involved in espionage or terrorism -- would be a terrible mistake. And unless strong congressional oversight is hardwired into the new agency, it will eventually cross the ever-more-nebulous line that separates information gathering from unconstitutional harassment. The new agency would report primarily to Congress' Joint Intelligence Committee, which has not gained a reputation for vigorous oversight. But because of the sensitivity of domestic intelligence gathering, the House and Senate judiciary committees -- the traditional homes of civil-liberties champions from both sides of the aisle -- should be given an important role in checking the new agency. That could be especially important if and when the war on terrorism is won and the agency seeks to justify its budget by creating new bogeymen, as the CIA tried to do with economic espionage after it lost its Cold War playmates.
There is no perfect solution to this problem. The standards of privacy and civil liberties invariably exist on shifting sands. But civil libertarians are misguided to focus on the nightmare scenarios they imagine will be created by a domestic intelligence agency. The nightmare may already be here.
Daniel Franklin is a writer based in Washington, D.C.
