Yesterday, the Bill of Rights Defense Committee submitted a letter to the Senate Judiciary Committee on behalf of 46 organizations. The letter raises concerns about the 2008 FBI Guidelines promoted by then-Attorney General Mukasey. UPDATE: While news from today’s hearing was dominated by questions about how widely FBI agents had cheated on tests about their spying powers, Senators Leahy and Durbin also pressed FBI Director Mueller about racial and religious profiling under the 2008 Mukasey Guidelines. The FBI director reportedly erred when claiming that agents are currently allowed to initiate surveillance based only on suspicion of wrongdoing, and conceded in a note after the hearing that FBI surveillance is limited neither by evidence nor by suspicion. The coalition letter organized by BORDC reads, in part:
We write to request further congressional oversight of the Federal Bureau of Investigation’s (“FBI”) operations pursuant to the 2008 Attorney General’s Guidelines, which were implemented over congressional objections and threaten the constitutional rights of all Americans. In the wake of the Washington Post series exposing the secrecy and unaccountability of our nation’s intelligence establishment, the Senate Judiciary Committee has a responsibility to seek transparency into FBI operations and restore the Bureau’s accountability. … Documented in over 14,000 pages of congressional testimony, the Church and Pike Committees revealed that, between 1956 and 1971, the FBI engaged in a sustained and coordinated campaign to hinder constitutionally-protected activism and neutralize political dissent. According to the Church committee, the FBI’s activities “would be intolerable in a democratic society even if all of the targets had been involved in violent activity, but COINTELPRO went far beyond that . . . the Bureau conducted a sophisticated vigilante operation aimed squarely at preventing the exercise of First Amendment rights….” Unfortunately, these problems are back. FBI Joint Terrorism Task Forces (“JTTFs”) around the country have engaged in political spying for nearly a decade. Meanwhile, audits by the Inspector General (“IG”) of the Justice Department—in 2007, 2008 and again in 2010—revealed rampant FBI abuses of National Security Letters expanded by the PATRIOT Act. The IG also uncovered separate violations of the FBI Guidelines in 2005. Yet in 2008, then Attorney General Michael Mukasey issued a new set of Guidelines, prompting concerns from Senator Richard Durbin (D-IL) even before their implementation…. … The Guidelines give FBI agents broad individual discretion to investigate Americans using these techniques without reasonable suspicion of wrongdoing, or supervisory approval or oversight. They also allow race to be used as a factor, among others, justifying scrutiny. Given the pressure on agents to identify unknown threats to national security before they emerge, such unchecked power invites abuse, including inappropriate profiling according to race, religion, national origin, or speech advocating a particular point of view. … The Bureau’s contemporary “undisclosed participation” activities recall the worst of the FBI’s abuses during the COINTELPRO era and expand upon them by including religious groups protected by the First Amendment’s Free Exercise Clause among those whose rights it offends. The Bureau has also re-established the secrecy surrounding its operations, refusing to disclose to either the public or Congress the policy under which those investigations are authorized. Since 2008, FBI agents, state and local law enforcement agents cooperating with them through JTTFs, and informants have infiltrated groups pursuing various constitutionally protected purposes. Faith institutions, activist groups advocating for causes as varied as pro-life and pro-choice stances on reproductive rights, environmental causes, opposition to the death penalty, foreign policy objectives, and animal rights have all been affected. … Surveillance, monitoring, and law enforcement resource allocation decisions stigmatize communities singled out for scrutiny on the basis of race, religion or national origin, to the same extent as discriminatory harassment and baseless arrest…. In considering the potential necessity of legislation to protect civil rights and civil liberties, Congress should not grant the FBI guidelines artificial legitimacy, nor should the Bureau be afforded credibility that it has not only failed to earn, but actively undermined. Just this year, the Chairman of the House Judiciary Committee called for the FBI’s General Counsel to be replaced given the wanton abuse of not just National Security Letters (NSLs) uncovered by Inspector General reports in 2006 and 2008, but also the further abuse of an entirely new investigative authority (known as “exigent letters,” promising NSLs that often never arrived) invented by the FBI.10 As a repeat offender, the Bureau is long overdue for intervention by Congress.