Note the key facts below:
1. The FBI is systematically questioning groups it thinks are anti-Bush, asking if they plan violent protests during the Republican Convention, or know of anyone who does.
2. The FBI says, “No one was dragged from their homes and put under bright lights. The interviewees were free to talk to us or close the door in our faces,” and indeed there is no evidence to the contrary.
3. At least some potential demonstrators have been intimidated: “they got the message loud and clear that if you make plans to go to a protest, you could be subject to arrest or a visit from the F.B.I.” It may be that they were wrong to be intimdated, but can you blame them? And if this chilling effect is widespread, should that not be a cause for some concern?
4. While the FBI's reported questions would not be troubling in the context of a case where it has particularized suspicion, they are troubling when used dragnet-style. And the FBI's awareness of someone's opposition to the Administration's policies — however fervent — does not imply they intend violence, and cannot suffice to substitute for particularized suspicion.
5. Without knowing more details I cannot say with confidence if the FBI has crossed the line separating mere bad taste and errors of judgment from systematic First Amendment violations. That said, what's going on is bad enough that someone on the inside filed an internal protest, although that must surely be a career-ending event in the FBI. That doesn't look good.
6. There's no comfort to be had from the OLC in the Justice Department opining that it's all 100% kosher. This is, after all, the same office whose warped vision of the Constitution allowed them to opine torture was legal. But I'd sure like to see that “Justice Department's Office of Legal Policy … five-page internal analysis obtained by The New York Times.”
7. It seems the FBI has nothing better to do than to send six — SIX! — special agents to interview one 21-year-old anti-war group intern. Of course, that could never be seen as in any way intimidating.
The New York Times: F.B.I. Goes Knocking for Political Troublemakers. The Federal Bureau of Investigation has been questioning political demonstrators across the country, and in rare cases even subpoenaing them, in an aggressive effort to forestall what officials say could be violent and disruptive protests at the Republican National Convention in New York.
F.B.I. officials are urging agents to canvass their communities for information about planned disruptions aimed at the convention and other coming political events, and they say they have developed a list of people who they think may have information about possible violence. They say the inquiries, which began last month before the Democratic convention in Boston, are focused solely on possible crimes, not dissent, at major political events.
But some people contacted by the F.B.I. say they are mystified by the bureau's interest and felt harassed by questions about their political plans.
“The message I took from it,” said Sarah Bardwell, 21, an intern at a Denver antiwar group who was visited by six investigators a few weeks ago, “was that they were trying to intimidate us into not going to any protests and to let us know that, 'hey, we're watching you.' ''
The unusual initiative comes after the Justice Department, in a previously undisclosed legal opinion, gave its blessing to controversial tactics used last year by the F.B.I in urging local police departments to report suspicious activity at political and antiwar demonstrations.
The bulletins that relayed that request detailed tactics used by demonstrators – everything from violent resistance to Internet fund-raising and recruitment.
In an internal complaint, an F.B.I. employee charged that the bulletins improperly blurred the line between lawfully protected speech and illegal activity.
But the Justice Department's Office of Legal Policy, in a five-page internal analysis obtained by The New York Times, disagreed.
The office, which also made headlines in June in an opinion – since disavowed – that authorized the use of torture against terrorism suspects in some circumstances, said any First Amendment impact posed by the F.B.I.'s monitoring of the political protests was negligible and constitutional.
If we read about this behavior in another country, would we give the federal politzia the benefit of the doubt? The answer most likely depends on that nation's traditions and recent history.
How long until our national institutions no longer deserve a presumption of honesty when engaged in politically sensitive tasks? Or, in the case of the FBI, headquartered in the J. Edgar Hoover Building, are we well past that point?
I don’t think the government ever deserved a presumption of honesty. Yes, that existed for many years, but it was undeserved. The recent actions by the government scare me, not because they are radically different from past government actions, but because they are so similar to past abuses. We’ve apparently learned nothing from our past errors. Things like the Alien and Sedition Acts, the Spanish-American War, the Japanese relocation and even Watergate were supposed to be just quaint “youthful indescretions”. Now we’ve passed the Patriot Act, gone to war with Iraq, suspended basic constitutional rights, and may even be once again using the FBI to intimidate political opponents.
On the bright side, the current administration doesn’t appear to be targetting it’s enemies for politically motivated IRS audits, and that’s something the last administration DID do. So it’s not all bad news. I frankly expected worse, as each President expands on the abuses the previous made acceptable by getting away with, and Clinton got away with a LOT.
By the way, until the left gets over it’s obsession with gun control, talk about “suspended basic constitutional rights” is going to sound pretty ironic coming from your side. Mr Pot, meet Mr. Kettle.
This quote got to me, from the FBI, “free to talk to us or close the door in our faces”. Yeah, right. Like FBI agents show up somewhere and anyone at all thinks that shutting the door in their faces is a good move to make.
But I want to second Mojo’s remarks. My reading of the Consitution and the founding fathers is that the government isn’t supposed to get any presumption of honesty either. That’s why they built in the checks and balances. We’ve got to put a check on this government or we’re all going to lose our balance.
There’s a good reason for the lack of I.R.S. audit abuse. Why bother, in the days of the Patriot Act?
The F.B.I. agents involved in this “simple questioning,” after all, aren’t just any old J. Edgars. This is the F.B.I.’s Joint Terrorism Task Force, acting pursuant to F.B.I. Intelligence Bulletin Number 89, issued October 2003, available in full here: http://www.aclu.org/Files/OpenFile.cfm?id=14451.
http://www.kmox.com/news/article.php?id=13871 is one radio report from St. Louis about a few men planning to disrupt the Boston convention and instead being required to respond to a grand jury subpoena regarding plans for criminally disorderly behavior, evidently terrorism’s little brother. http://www.rockymountainnews.com/drmn/state/article/0,1299,DRMN_21_3075285,00.html, and a previous article by the rocky mountain news, detail a similar event that happened in Denver, with 4 agents from the Task Force in operation this time. And I’ll admit, maybe this wouldn’t bother me so much, as a student of history aware of the COINTELPRO program, except why is the F.B.I. denying its happening?
At least as of November 25, 2003, F.B.I. Assistant Director for Counterterrorism John Pistole told Curt Anderson of the Associated Press, in response to repeated news reports of anti-war protesters receiving this kind of attention (see an example at CNN here: http://www.cnn.com/2003/US/11/23/security.fbi.reut/) that any reports of this kind of tactic were flat out wrong, and that only persons who posed some sort of threat were targeted under the new liberal terrorism investigation laws. The A.P. made a point of the fact that it was unusual for the F.B.I. to volunteer this kind of information on its own. See the full article here: http://www.bradenton.com/mld/fortwayne/news/local/7349678.htm
To me, the scariest part is that most of these reports are regarding plans to protest at the DNC, not the RNC (although feel free to check Google for plans to cage protestors and engage in other colorful tactics at the RNC), and so this doesn’t look so much like the F.B.I. coddling to the powers in charge, but rather reveling personally in their newfound freedom.
So, you’re saying People for the American Way has a team of FBI agents camped out in their lobby, harrassing them 24/7, the way the NRA was under perpetual IRS audit during the Clinton administration? News to me.
Understand, I’m not saying that the Patriot act couldn’t be abused in this fashion. Just that it isn’t being abused that way, so far as I’ve heard.
As for the examples you cite, those were people who were apparently planning criminal acts, and against the Democratic party to boot. Not at all the same thing as Clinton having his personal enemies like Linda Tripp audited. And nothing scary about the FBI caring about criminal acts against Democrats… Were you under the impression that the incoming President replaces everybody in the FBI? There ARE Democratic FBI agents, you know…
Brett; I had no intention of claiming that abuse of governmental power is an exclusively Republican pastime. There are numerous examples from both parties. In fact, many of the abuses aren’t initiated by whichever administration is in power but by the agencies themselves. My concern is that we don’t seem to be making substantial progress in reigning in governmental abuses.
I disagree with your assertion that “those were people who were planning criminal acts”. First, although the FBI claims that their interest was only in those who plotted violence, their investigations have been of large-scale protests where there was the “potential” for violence, not necessarily actual evidence that violence was planned. Second, the FBI strayed from investigating planning for violence into areas that couldn’t be considered criminal by any stretch of the imagination. (The memo “described activist strategies like videotaping arrests to intimidate police and using the Internet to recruit and raise funds”).
Brett’s point about earlier abuses of presidential power is well-taken. But I’m not sure that it excuses what the current administration is doing, except insofar as one may make the case that the temptations of executive power may now be beyond the ability of any individual’s conscience to resist. Which brings us back to the matter of why there are checks and balances. It is too bad that the legislature and judiciary subordinate the privileges of their respective branches of government to party loyalty. I’m afraid we’ll be seeing more of this in the future, whoever wins.
Professor Froomkin,
Brett brings up another interesting issue in referring to the allegations of misuse of the IRS to audit political enemies during the Clinton administration. I know there were lots of allegations and the FBI began at least one investigation, but I don’t remember what the outcome was. I know that Bush kept the head of the IRS in place when he took office, which suggests that no crimes were uncovered, but I don’t know the final outcome. (I don’t think there is any doubt that at least some Clinton officials wrongly leaked information from IRS audits though.) Perhaps your friend George Mundstock can give us more on that.
If you can’t trust the FBI, who can you trust? 🙂
i don’t think it’s that big of deal.
As I recall, Judicial Watch managed to uncover with FOIA a letter from the White House to the IRS, which apparently was what led to their being audited. http://www.judicialwatch.org/2252.shtml
As for the other cases, as far as I know no conclusive evidence was obtained, but knowing he did it in one case, writing off the others as coincidence strikes me as a stretch.
Even assuming, arguendo, that the Clintons were popping unwarranted audits out left and right, there’s no such thing as a permanent IRS audit. Long after Bush leaves power, we’ll still have the patriot act to deal with. I guess you just have to admit it, like it or not, all politicians may be petty vindictive jerks, but Bush shows real talent at it.
Actually, the Patriot act has a sunset provision. (If only such clauses were more common!) A fairly short one, in fact; It kicks in early next year. But I suppose you’re right, the audits weren’t permanent… Eventually Clinton left office, and some time after, they stopped. “Continual” would have been a better choice.
Brett; Actually, the audits didn’t stop after Clinton left office. If you read the rest of the link you posted earlier, you’d see two things. First, Judicial Watch said that it was an “attempted audit”. Second, “The IRS attempts to audit Judicial Watch continue” a full year into Bush’s term. The “smoking gun” documents they mention were an e-mail to the Clintons from a supporter complaining about Judicial Watch that was forwarded to the IRS Commissioner by the White House and various complaints about Judicial Watch from members of Congress. Although Judicial Watch sued Clinton yet again last year, it wasn’t related to the audit controversy.
Although some provisions of the Patriot Act do have a sunset provision, the administration has repeatedly urged Congress to extend those provisions.