Domestic Intelligence Gathering and Civil Liberties

Domestic Intelligence Gathering and Civil Liberties

Steven L. Pomerantz
The question of how much latitude we give law enforcement agencies in the investigation of citizens as well as aliens who have not committed any crimes is the central issue we face today in our domestic effort to combat terrorism and prevent another 9/11. The issue tugs at us from both perspectives, going to the heart of who we are as a nation.

America's battle against international terrorism, fought in the shadows and on the margins for decades, literally exploded into the consciousness of Americans on September 11, 2001. For reasons that will forever remain indefensible, it took the deaths of 3,000 fellow citizens to focus our attention on an enemy, Al-Qa'ida, that had formally declared war on us three years earlier, and a phenomenon, Middle East terrorism, that had been taking the lives of Americans for decades.

In the aftermath of the attacks, our country committed itself as never before to confronting the terrorist enemy. One of the most obvious, indisputable, and significant deficiencies exposed by the events of 9/11 was the weakness within our intelligence agencies that enabled the terrorists to plan, develop, and execute their attack without detection. Despite the billions of dollars expended annually on intelligence gathering, the Central Intelligence Agency (CIA), the National Security Agency (NSA), the Defense Intelligence Agency (DIA), and the other organizations that make up our foreign intelligence collection establishment, as well as the FBI, our principal domestic intelligence agency, all failed to expose and stop the terrorists. In the months following 9/11, the intelligence community was literally turned upside down, restructured, reorganized, and reconstituted in an effort to ensure that we never again be victimized in the same manner.

Prevention as a Priority

Shortly after the 9/11 attacks, the attorney general of the United States, in concert with the FBI director, announced that henceforth the FBI's priority in counterterrorism investigations would be prevention rather than prosecution. This announcement was conveyed in a manner that suggested a dramatic departure from previous policy. In fact, the FBI had always emphasized prevention in its counterterrorism investigative program—having created decades ago a mechanism to record terrorist acts prevented as part of its annual statistical reporting.

As commendable as this policy sounds, what does prevention mean in practice? How do you prevent a terrorist act? The answer is pretty straightforward: Prevention is accomplished through the gathering of intelligence. Among the elements of knowledge one must acquire to prevent terrorism are the following:

  • Who are the terrorists among us?
  • Who are their leaders?
  • Where are they located?
  • How are they organized?
  • What are they planning?
  • How are they financed?

Note that there is no question on this list addressing what crimes the terrorists might commit. The reason is that the investigation of crimes and the gathering of intelligence are completely different processes. (Intelligence may be a by-product of criminal investigations, but generally speaking, intelligence-gathering takes place outside of the criminal investigative process.) It is within the distinction between investigations predicated on criminal conduct and those conducted to gather intelligence that concerns about civil liberties and privacy most dramatically manifest themselves. Put in the most simple and stark terms, intelligence investigations frequently involve inquiries about individuals and organizations about whom no criminality is apparent or even alleged.

To illustrate this notion, consider this example from the world of everyday FBI operations. A counterterrorism official at FBI headquarters, in reviewing his/her stack of incoming mail, finds a letter from an allied law enforcement agency in Europe advising about a certain Mohammed Abdul who left Europe one month ago and is now residing in Dallas, Texas. The letter notes that Mr. Abdul was known to be a close associate of a group of hard-core terrorist suspects and was frequently seen in their company under highly suspicious circumstances. The letter concludes by saying that several reliable confidential sources have stated that Abdul has made statements in support of violent terrorist activity, is positively disposed toward the concept of worldwide jihad, and in their opinion, would not travel to the United States for any reason other than for his involvement with a terrorist organization. (The above scenario, while entirely fictitious, is also quite plausible.)

The FBI, in further checking, finds that Mr. Abdul is not wanted for any crime in Europe, is in the U.S. legally, and, so far as is known, has committed no criminal offense in this country. What are they to do? The majority of Americans presented with this intelligence report would probably think that some follow-up investigation was warranted-notwithstanding the absence of criminal activity. What is absolutely clear is that were Mr. Abdul involved in an act of terrorism in this country and it came to light that the FBI had had this information and not acted, the consequences would be catastrophic!

Differences between Criminal and Intelligence Investigations

Criminal investigations proceed under specific statutory authority, and the range of permissible conduct of law enforcement officers carrying out these functions is generally well know and often settled as a result of court decisions. Every law enforcement officer in the country, for example, knows about the requirement to advise suspects of their constitutional rights when making an arrest; they know, too, that evidence obtained illegally is not admissible in court.

Intelligence investigations, on the other hand, are conducted primarily under various administrative regulations and guidelines. In the FBI, there are two sets of guidelines that govern the conduct of intelligence investigations. One set, unclassified and publicly available, deals with domestic organizations composed primarily of U.S. citizens; the other set, which is classified and under which the majority of the FBI's current counterterrorism efforts are now taking place, applies to foreign-based organizations and non-U.S. citizens.

The guidelines were written in somewhat broad terms and are subject to various interpretations. Prior to 9/11, they were, generally speaking, rather narrowly interpreted by the FBI, as well as by those organizations with oversight responsibilities for FBI operations, particularly the Department of Justice and the U.S. Congress. To a great extent, the strict reading was a result of past FBI and law enforcement abuses during the 1960s and 1970s. There was also a strong element of political correctness at play-a reluctance to single out Arab and Muslim terrorism as being a greater threat to this country than other forms of politically motivated violence. The tendency toward political correctness was reinforced by the lobbying and propagandizing efforts of Arab and Muslim groups in this country, who attempted, rather successfully, to portray counterterrorism initiatives as motivated by racial animus and as ill-conceived threats to civil liberties.

Atmosphere of Caution at the FBI

I can personally attest to the climate of caution and timidity that existed during my tenure as chief of counterterrorism at the FBI. This was also clear from the information made available subsequent to 9/11, especially by the Kean (9/11) Commission. The manner in which decisions-later the subject of intense controversy-were made in the Phoenix, Minneapolis, and New York field offices attests to the cautious and conservative approach then being taken under the guidelines. Put another way, the aggressiveness with which domestic intelligence investigations are pursued is very much a political matter.

Caution in applying and interpreting guideline provisions resulted in a smaller number of investigations being initiated and pursued, as well as in a less aggressive approach to the conduct of pending investigations. One could argue that the stricter the application of the guidelines, the less likelihood there was of intrusive FBI activity and abuse of civil liberties. But one could argue just as convincingly that the more liberal the interpretation of the guidelines, the greater the likelihood of obtaining information that could prevent the next attack.

From what the government has made known since 9/11, it seems safe to conclude that the FBI is acting substantially more aggressively in pursuit of intelligence within the United States. The numbers alone tell the story: Although the exact number of FBI agents working on counterterrorism investigations is classified, the FBI has revealed that there has been a huge increase in personnel so assigned. Since the level of terrorist incidents in the U.S. has mercifully not increased since 9/11, it is reasonable to assume that a substantial percentage of the new agents with counterterrorism responsibilities are working on intelligence investigation.

The Patriot Act

Congress is currently reviewing aspects of the Patriot Act to make determinations concerning its future application. Insofar as the civil liberties of American citizens are concerned, the Patriot Act is clearly the single most controversial and publicly debated legislative action taken by the federal government in response to 9/11. The most contentious sections of the act involve the use of certain techniques by the FBI and Justice Department, including access to business records, wiretapping, and search and seizure. An analysis of the provisions of the Patriot Act, its utility in the war on terrorism, and the dangers it poses for civil liberties and privacy are well beyond the scope of this article. Rather, I would maintain that the Patriot Act-whether left intact, modified, or repealed-is less of an issue vis-à-vis civil liberties than is the manner in which the intelligence guidelines are interpreted and implemented.

The use of the investigative techniques authorized by the Patriot Act requires that an active investigation has been initiated in accordance with the provisions of the guidelines. Without an active investigation, there can be no search, no wiretapping, and no record review. The frequency with which the techniques authorized by the Patriot Act are utilized is in direct proportion to the number of investigations launched under the guidelines. That number is largely, although not entirely, a function of the manner in which the guidelines are interpreted.

Although the Patriot Act has served as a focus for critics concerned about the counterterrorism efforts of law enforcement in general and the FBI in particular, the broader questions about these law enforcement activities (i.e., who is being investigated, how many investigations are being conducted, and on what basis) have always been part of their agenda. The organizations active in focusing attention on this issue can be divided, in my view, into two groups: those who have legitimate concerns and are honorably motivated, such as the American Civil Liberties Union (ACLU); and those whose underlying goal is to counter an effective government response to terrorism. The latter category is made up largely of Arab American and Muslim American organizations, buttressed by extremists at both ends of the political spectrum.

The Heart of the Matter

A couple of months ago, I read in a newspaper that a consortium of organizations had submitted a Freedom of Information Act request to obtain FBI records on the scope of current FBI counterterrorism investigative activity. Although the Freedom of Information Act process grinds exceedingly slowly, I thought at the time that this was a significant event. It wasn't as sexy as TV and newspaper ads attacking the Patriot Act, but it represented an effort to get at the heart of the matter. Once it was known how wide a net the FBI has cast, how many people have come under scrutiny, and what actions they have taken in pursuit of these inquires, a political, legal, and public relations effort could be mounted to counter the FBI's reinvigorated response to the threat of terrorism.

The FBI and the Justice Department are certain to resist this request and to limit, to the best of their ability under the law, the release of information they believe to be detrimental to the national interest. Just as surely, the ACLU and others will counter with all legal means within their grasp. Just recently, another shot in this battle was fired when the ACLU and other organizations objected to procedures followed by the FBI in gathering information about organizations planning acts of protest in connection with the 2004 national political conventions. The ACLU claimed that the FBI was "up to its old tricks," while the FBI countered with assertions that it was acting within the scope of its legitimate jurisdiction. The outcome of all of this is not predictable at this time, but the fight over the scope of FBI investigative activity that will result from this initiative could, in my view, be far more significant than the current battle over the Patriot Act.

So the issue is framed and the battle joined. Whether one looks at the Patriot Act or the larger issues surrounding domestic intelligence activities, the underlying question is the same: How far do we want the government to go in scrutinizing individuals and organizations in this country in the name of our security? And just how do we come to consensus on this issue? The answers to these very important questions are not readily apparent.

There are at least a couple of truisms that ought to be acknowledged, but are often dismissed by those on opposite sides of this issue. First, it is entirely reasonable to be concerned about the abuse of civil liberties during periods of national stress. Our history makes that abundantly clear. Second, it is equally true that the degree to which our government effectively engages in the collection of domestic intelligence information directly impacts on our safety and security. We have been repeatedly reminded of our government's failure to "connect the dots" in relation to 9/11. Similar questions are now being raised in Great Britain about the extent of law enforcement knowledge concerning Muslim extremist activity in that nation. As is obvious, before you can "connect the dots," you have to have them in your possession. The "dots" are all the bits and pieces of information collected through the intelligence gathering process. The more aggressively we pursue, the greater the number of "dots."

Finding the proper balance in this maze of competing and sometimes conflicting interests is the task now before us. The way we respond to the challenge will undoubtedly shape the nature of our society for years to come, as well as effecting the safety and security of all Americans. We really need to get this right-and the way to do it is to proceed from facts rather than reacting from preconceived ideological beliefs.

Steven L. Pomerantz, AJC's national security consultant, is a former assistant director of the FBI and chief of its counterterrorism division.
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