On October 3, BORDC received a letter from the FBI responding to concerns we have repeatedly raised about the FBI’s ongoing abuses of constitutional rights. While claiming to defend the Bureau’s integrity and professionalism, the letter ultimately conceded the underlying issues BORDC raised. The FBI’s letter came in response to one signed by thousands of Americans and delivered to Congress and the attorney general last January, called for increased oversight of the FBI’s secretive and invasive operations. We reiterated those same concerns this summer, when BORDC led a diverse coalition of more than 40 organizations concerned about constitutionally offensive FBI practices, inviting congressional resistance to the White House’s (ultimately successful) proposal to extend the FBI director’s term—for the first time since J. Edgar Hoover’s infamous and corrupt reign of intimidation and coercion. At the time, we wrote that:
Under Director Mueller’s leadership, the FBI has frequently violated the rights of diverse law-abiding Americans, abused its investigative powers, failed to abide by its own guidelines, arbitrarily revised those guidelines to permit longstanding abuses even in the face of congressional concerns, and avoided public accountability by cloaking its actions in secrecy—all while actively (and demonstrably) misleading federal courts, Congress and the American people.
Our letter, whose assertions were supported by a wide range of third-party reports and analysis, connected numerous issues that have previously prompted occasional but inadequate scrutiny of FBI operations. In response, the director of the FBI’s Office of Intergovernmental and Public Liaison claimed that existing policies “contain numerous measures designed to ensure their authorities are used properly and within the confines of the Constitution.” Specifically, the Bureau claims that internal review processes impose meaningful checks and balances to prevent “initiating investigative activities based solely on an individual’s exercise of First Amendment rights or on protected characteristics such as race, ethnicity, national origin, or religious affiliation” (emphasis added). The FBI further noted that “to the extent the searches referenced were conducted pursuant to search warrants, a neutral and detached magistrate made a finding that there was probable cause to believe evidence of criminal conduct could be found” (emphasis added). A careful read of the Bureau’s response, however, reinforces the concerns that BORDC raised. First, by reiterating that neither First Amendment activity nor constitutionally protected characteristics (such as race, ethnicity, national origin, or religion) may constitute the sole basis for investigative scrutiny, the Bureau concedes that these factors are used in the context of other factors to justify intrusive investigative techniques. Second, the government’s statement that judges have authorized searches in some cases concedes that the FBI can access private information without first securing a warrant in other cases. In fact, BORDC and the coalition behind the letter argued precisely that many FBI investigative powers lack a warrant requirement, opening the door to recurring abuses. The FBI did not address BORDC’s observations about the Bureau’s repeated misrepresentations to Congress, federal courts, and concerned community groups around the country. The FBI also chose not to defend its extensive secrecy, which continues to block transparency into the policies it uses to justify surveillance operations such as infiltrating activist groups. For instance, an earlier FBI letter that BORDC obtained through the Freedom of Information Act admits that the Bureau “engage[s] in surveillance” without the long established constitutional safeguards that protect First, Fourth, and Fourteenth Amendment rights. In that letter, the Bureau asserted the power to ignore constitutional rights based on any “proper purpose for the surveillance,” while noting that “suspicion of wrongdoing could be a proper purpose, but it is not the only proper purpose.”