Tracked by Spies and Informers

By Julia A. Shearson

The February 26, 2009 revelation in the Los Angeles Times that FBI domestic intelligence informant and ex-convict Craig Monteilh and others were paid handsomely to spy on Muslim Americans in their houses of worship in Southern California should come as no surprise. Such domestic intelligence gathering has a history in the United States.

The annals of modern domestic surveillance in America are contained in the massive 1976 Church Committee Reports of the U.S. Senate Select Committee on Intelligence. The reports, drafted by the Senate in the wake of the Watergate scandal, should have ended domestic intelligence abuses, but in the post-9/11 climate, their warnings and descriptions of crimes against liberty go unheeded.

The chapter entitled “The Use of Informants in FBI Domestic Intelligence Investigations” begins: “Men may be without restraints upon their liberty; they may pass to and fro at pleasure: but if their steps are tracked by spies and informers, their words noted down for crimination, their associates watched as conspirators—who shall say that they are free?”

This quote was borrowed from Sir Thomas May, the nineteenth-century author of The Constitutional History of England. May railed against the use of such spying practices by “continental despotisms” and claimed that “the freedom of a country may be measured by its immunity from this baleful agency.”

The Church reports, available on the Internet, are worth reading today in light of the FBI’s consolidation of domestic intelligence powers in the waning days of the Bush administration. Indeed, the December 1, 2008, issuance of the new investigative guidelines by Attorney General Mukasey was a major step in reconstituting the FBI as the United States’ premier domestic intelligence agency with the Department of Homeland Security and the Joint Terrorism Task Forces as their force multipliers on the ground.

We may be safer now because of this, but at what price for liberty? The new post-9/11 domestic intelligence regime, coupled with immense power, information technology, lack of congressional curiosity and lax Department of Justice oversight, has put our Bill of Rights in peril.

In short, the FBI has been sent headlong into what former vice president Cheney calls the “tough, mean, dirty, nasty business” of keeping the country safe from terrorists. But the problem is the FBI cannot serve two masters: it cannot both serve the Constitution and get into the domestic intelligence trenches. History proves this.

Take just one investigative tool at the FBI’s disposal, the domestic intelligence informant. The Church reports note that “the paid and directed informant is the most extensively used technique in domestic intelligence investigations” and that once the criteria for opening an intelligence case were met, informants could be “used without any restrictions.” In fact, in the 1960s and 1970s, the funding allocated for the intelligence informant program was twice that allocated for organized crime informants. At the height of the Civil Rights Era spying regimen, there were more than 7,400 informants in the Ghetto Informant Program alone. Even agents in the FBI were wary of that controversial program.

There was “no requirement that the decisions of the FBI to use informants be reviewed by anyone outside the Bureau.” This meant that the use of intelligence informants was not “subject to the standards which govern use of other intrusive techniques such as wiretapping and other forms of electronic surveillance.” Moreover the Church reports make clear that there was, and still is, a lack of judicial treatment of the constitutional issues surrounding intelligence informants because as the reports note, “Members of a group will seldom learn that an FBI intelligence informant has been in their midst or has copied their records for the FBI because intelligence investigations almost invariably do not result in prosecutions.”

The newly minted investigative guidelines rushed into place by then attorney general Mukasey on December 1, 2008, cement the FBI’s role as a de facto domestic intelligence agency. Mukasey claimed that the Department of Justice was merely streamlining the investigative playbook so that rules for criminal and national security investigations were more uniform. Yet, according to the Center for Democracy and Technology, the new guidelines “authorize the use of intrusive investigative techniques to collect information in the absence of particularized evidence of a crime or risk to national security.” This is a radical shift in FBI policy.

In fact, under the guise of streamlining its investigative powers, the FBI widened its use of “threat assessments” and “preliminary investigations” and increased the intrusiveness of the techniques available for such practices while it simultaneously eliminated the requirements of reporting such initial investigations to FBI headquarters. Moreover, the new guidelines increase from 10 to 30 days the time period during which a “full investigation” with the most intrusive of techniques can go forward without being reported by the field offices to the headquarters.

So, are other intelligence assets such as Craig Monteilh out there now spying on law-abiding Americans? Probably. Under the 1960s and 1970s domestic intelligence programs for spying on “subversives” and “extremists,” many people got swept up into the intelligence “vacuum cleaner”: college professors, union activists, ministers, women’s rights advocates, students, and so on. Does the Constitution permit the government to spy on American dissenters while it scouts for those who are planning actual violence?

How do we protect the country and its citizens without suppressing the right to dissent, the right to speak freely, and the rights to associate and to assemble? Do Americans really want the FBI back in the domestic intelligence business? Is the FBI’s new domestic intelligence apparatus a necessary post-9/11 evil? It is difficult to know, because it is unclear how the FBI’s new powers are being used. What is clear is that the powers are being used against the average Joe Muslim who keeps getting caught up in the “war on terror.”

Those with knee-jerk suspicion of everything Muslim seem to forget that the rights being compromised in the war on terror are their selfsame rights. Don’t the average Joe and the average Joe Muslim deserve to be free from being tracked by spies and informers?

Most Americans likely want to be free of prowling informants and provocateurs such as Monteilh. In fact, the average American, born with liberty in his gut, has never much liked a government that snoops. Although we want our government to investigate crime and to prevent terrorism, we expect those investigations to stay within constitutional limits.

As Patrick Henry said, “The Constitution is not an instrument for the government to restrain the people, it is an instrument for the people to restrain the government—lest it come to dominate our lives and interests” and as George Washington said, “Government is not reason; it is not eloquent; it is force. Like fire, it is a dangerous servant and a fearful master.” It is not certain whether Washington or Henry would approve of the FBI’s renewed domestic intelligence powers, but it is certain they would want the Congress and the new attorney general to monitor the FBI through strict oversight.

If a well-informed consenting citizenry deems domestic intelligence gathering to be a necessary evil, it should be a closely watched evil, lest the well-intentioned but immensely powerful FBI begin repeating its shameful use of intelligence informants as “vacuum cleaners” of information with no limits on what they would report about a subject and his associates.

Julia A. Shearson is executive director of the Cleveland Chapter of the Council on American-Islamic Relations.