Reviews

Sacrificing Civil Liberties

Terrorism and the Constitution: Sacrificing Civil Liberties in the Name of National Security, by David Cole and James X. Dempsey (The New Press, 2002)

"We're not going after the average American. We're only going after the bad guys. We respect the right to privacy. If you're not a terrorist or a spy, you have nothing to worry about."

- Mark Corallo, Justice Department spokesman,
speaking about the powers granted to the FBI
under the 2001 "USA PATRIOT" Act to monitor
the reading habits of library patrons.1

The history of the FBI's monitoring of political thought, as told by authors David Cole and James X. Dempsey in Terrorism and the Constitution, belies this Justice Department statement. Initially published in the wake of the Antiterrorism and Effective Death Penalty Act of 1996, the second edition of the book, published in 2002, includes a new chapter addressing the impact of the USA PATRIOT Act ("United and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism") on civil liberties. The book provides a historical basis for understanding the scope of the Act and also offers some concrete suggestions on how the FBI can better serve the public.

In contrast to the official line of the Justice Department, Cole and Dempsey give readers good reason to believe that U.S. residents who hold political beliefs different from that of the sitting government definitely have something to worry about when it comes to safeguarding their civil liberties. This is evidenced by FBI investigations of First Amendment activities over the last five decades. The book recounts the chronology of FBI investigations during the Red Scare of the 1950s and the social protest of the Vietnam War era, but it is Cole and Dempsey's account of FBI activity in the 1980s that is particularly interesting in light of recent anti-terrorist legislation because the era marks a pivotal shift in the focus of counterintelligence investigations -- namely, a move from the investigation of communism to the investigation of terrorism.

The authors discuss the FBI's investigation of the Committee in Solidarity with the People of El Salvador (CISPES) to illustrate this change. CISPES was formed in 1980 to promote awareness of the U.S. government's support of right-wing guerrillas in El Salvador. From 1981 to 1985, the activities of attendees at CISPES meetings across the U.S. were routinely and secretly documented. Members of CISPES were investigated and sometimes harassed, under the guise of uncovering communist links; then, as the Cold War drew to a close, under the premise of investigating CISPES' support for terrorism. As the authors note, the CISPES investigation is the point in the FBI's history when the main focus of counterintelligence investigations changed from communism to terrorism.

The FBI's change in focus is further illustrated by the 1987 arrest by the FBI and INS of Khader Hamide, a permanent resident of the U.S., and a charismatic leader of the Popular Front for the Liberation of Palestine's (PFLP) Los Angeles chapter. According to Cole and Dempsey, the U.S. government wanted to deport Hamide because they disliked his political viewpoint, which was sympathetic to the PLO. Arrested with his wife and six other associates, Hamide was first charged under the 1952 McCarran-Walter Act, a McCarthy era law under which a resident could be deported for associating with a group that advocated world communism; this charge was later dropped. The government's subsequent strategies to deport Hamide included charges of association with a group that advocated destruction of property, promoting attacks on government officials, then finally with providing material support to an organization that advocated terrorism. The case against Hamide spanned 15 years and continues to this day, despite the fact that no criminal charges have been filed.

Poignant snapshots of FBI investigation such as these -- of constitutionally protected, domestic political activity -- illustrate the immense impact that government investigations can have on the lives of ordinary citizens when First Amendment activity is the basis for scrutiny.

As discussed in Terrorism and the Constitution, the FBI has the license to act freely and without tangible limits imposed by legislative or judicial oversight, and is frequently left to its own woefully ineffective self-policing policies. A point repeated throughout the book is the troubling fact that the legislature has never defined the role of the FBI, and the limitations that are imposed are regrettably often ignored. For example, the FBI was created to investigate criminal activities, but it routinely conducts counterintelligence operations to gather information on the political ideology of domestic organizations, even though

…domestic criminal investigations may be opened only upon suspicion of specific, individualized criminal conduct. When an investigation is limited by this criminal standard, investigators seek to determine who is engaged in planning or carrying out violent activities and guilt by association is inapplicable. But under the FBI's foreign counterintelligence and international terrorism investigations, the criminal standard does not apply; the FBI does not believe it is limited to investigating violent conduct.2

The use of counterintelligence methods in the investigation of domestic entities is exemplified in the agency's COINTELPRO (Counterintelligence Programs) operation, which was in place when the FBI investigated CISPES members not for any suspected, individualized, criminal wrongdoing, but for "guilt by association" with an organization holding political views counter to those of the U.S. government. As the authors note, if the FBI had followed the common belief that Middle East terrorists were to blame when investigating the Oklahoma City bombing, Timothy McVeigh might have never been captured. Yet, the government seems doomed to repeat the unproductive investigations executed under COINTELPRO with the intelligence gathering methods approved by the Antiterrorism and Effective Death Penalty Act of 1996 and the USA PATRIOT Act of 2001.

The anti-terrorism laws passed by Congress in the wake of the Oklahoma bombing in 1996 and the subsequent attack on the World Trade Center and Pentagon in 2001 codify the FBI abuses of civil liberties documented by Cole and Dempsey. This time the abuse may be in an even more egregious form because now the FBI has legislation to back its actions. Among the key provisions of the 1996 Act noted in the book are those that make it a crime to provide material support for groups designated as "terrorist," even if the support goes to wholly lawful, humanitarian activities of the group. This provision of the 1996 Act repealed the Edwards Amendment, a hard-won reform named for California Representative Don Edwards that prohibited government investigations based on First Amendment activities.3

Another alarming provision of the 1996 Act is that the definition of a "terrorist" group is solely at the discretion of the Secretary of State and can include threats to foreign relations and economic interests abroad.4 An organization or person can be designated a terrorist based on classified information that can be legally challenged only on very limited grounds. Furthermore, any defense to the designation of "terrorist" must rely solely on the administrative record provided by the Secretary of State. The authors argue that this is a flagrant violation of the due process protected by the Fifth Amendment to the Constitution.

The controversial practice of convicting suspects based on secret evidence is seen in another individual story told by Cole and Dempsey. In 1996, Nasser Ahmed, an Egyptian living in the U.S., was arrested and detained on routine visa violations by the INS after refusing to work undercover for the FBI during its investigation of Sheik Omar Abdel Rahman, who was accused of planning terrorist acts in New York City. The government subsequently attempted to deport Ahmed on secret evidence that was not revealed to him until 1999. When finally given the opportunity to confront the proof against him, Ahmed was able to disprove the government's charges and was released after spending three years in prison.

The USA PATRIOT Act built on intelligence-gathering methods codified in the 1996 Act. Signed into law on October 26, 2001, the Act was passed less than three months after 9/11, at the behest of Attorney General John Ashcroft. As the authors note, this was light speed in terms of the legislative process . There was little time for the general public, let alone our elected legislature, to conduct thoughtful review of the measures proposed in the act. The USA PATRIOT Act approves some of the FBI's worst past abuses of civil liberties in the name of combating terrorism. These abuses include deporting aliens for guilt by association, racial profiling, denying aliens entry to the U.S. because of ideological viewpoints deemed contrary to the U.S. government's, and formally allowing counterintelligence techniques typically used in espionage by the CIA, such as "black bag searches", to be used on U.S. citizens.

Perhaps most troubling for the free expression and privacy protected by the First Amendment is Section 215 of the Act, which authorizes the government to seize records or other tangible things relevant to its investigation of terrorist activities.

Under prior law, the FBI could get library borrowing records only by complying with state law, and always had to ask for the records of a specific patron. Under the USA PATRIOT Act, the FBI can go into a public library and ask for the public records on everybody who ever used the library, or who used it on a certain day, or who checked out certain kinds of books. It can do the same at any bank, telephone company, hotel or motel, hospital or university -- merely upon the claim that the information is "sought for" an investigation to protect against international terrorism or clandestine intelligence activities.5

The authors contend that this monitoring of First Amendment activity will have a chilling effect on the free dissemination of information and ideas, especially the questioning of U.S. government policy that is so critical to democracy.

As a partial resolution of the conflict between protection of civil liberties and FBI intelligence-gathering methods, Cole and Dempsey propose that government surveillance be based on the principles of criminal law. They envision a U.S. government in which terrorist organizations are prosecuted like crime families, and where the focus of investigation is actual criminal conduct, not political belief. "The FBI is at its best when it does criminal investigations. It is at its worst when it acts in a counterintelligence monitoring mode, secretly pursuing an ideologically defined target without the constraints and focus of the criminal code and without the expectation that its actions will be subjected to scrutiny in the adversarial context of a public criminal trial."6

The authors offer a series of "interlocking constraints" that would enforce checks and balances on the FBI . These proposed constraints include new legislation specifying detailed functions of the FBI and other intelligence agencies, as well as oversight of executive agencies by the judiciary and the legislature. Cole and Dempsey suggest that when enacting laws to combat terrorism,

[t]hree principles in particular should guide our response. First, we should not overreact in a time of fear, a mistake we have made all too often in the past. Second, we should not sacrifice the bedrock foundations of our constitutional democracy -- political freedom, due process, and equal treatment -- absent compelling showings of necessity. And third, in balancing liberty and security, we should not trade a vulnerable minority's liberties, namely the liberties of immigrants in general or Arab and Muslim immigrants in particular, in a misguided effort to obtain security for the rest of us.7

Perhaps some members of Congress will have the opportunity to read Terrorism and the Constitution before voting on any further counter-terrorism laws. One wishes that they had taken time to read the first edition of the book before passage of the first USA PATRIOT Act.

Blossom Lefcourt
August 19, 2003

(Author David Cole is a member of FEPP's advisory board.)

NOTES

1. Rene Sanchez, "Librarians Make Some Noise Over Patriot Act: Concerns About Privacy Prompt Some to Warn Patrons, Destroy Records of Book and Computer Use," Washington Post, Apr. 10, 2003, p. A20, www.washingtonpost.com/wp-dyn/articles/A1481-2003Apr9.html.

2. Cole and Dempsey, p. 26.

3. Cole and Dempsey, p. 88. The Edwards Amendment came to fruition due largely to a 1987 draft petition circulated to U.S. law professors by the National Coalition Against Repressive Legislation (NCARL). Among the key demands of the petition were that the scope of FBI investigations be limited to addressing criminal activity within the standards of criminal procedure, and that they not be permitted to monitor First Amendment activities. While NCARL was successful in obtaining the signatures of 590 legal academics, any momentum for change generated by the petition seems to have died with the passage of the 1996 Act.

4. Cole and Dempsey, p. 119.

5. Cole and Dempsey, p. 167. See also Nancy Kranich, The Impact of the USA Patriot Act.

6. Cole and Dempsey, p. 185.

7. Cole and Dempsey, p.148.