Hell No

Your Right to Dissent in Twenty-First-Century America

Michael Ratner, Margaret Ratner Kunstler

• Publisher: The New Press
• Year: 2011
• ISBN:
  9781595587503
• Topic: Politics & International Relations
• Subtopic: Political Surveillance & Privacy
• Index: Politics & International Relations

"Compelling and useful reading" for activists, protest groups, and individuals, from America's leading constitutional rights group ( Booklist ). In the age of terrorism and under the current administration, the United States has become a much more dangerous place—for activists and dissenters, whose First Amendment rights are all too frequently abridged by the government. In Hell No, the Center for Constitutional Rights, the country's leading public interest law organization, offers a timely report on government attacks on dissent and protest in the United States, along with a readable and essential guide for activists, teachers, grandmothers, and anyone else who wants to oppose government policies and actions. Hell No explores the current situation of attacks upon and criminalization of dissent and protest, from the surveillance of activists to the disruption of demonstrations, from the labeling of protestors as "terrorists, " to the jailing of those the government claims are giving "material support" to its perceived enemies. Offering detailed, hands-on advice on everything from "Sneak and Peek" searches to "Can the Government Monitor My Text Messages?" and what to do "If an Agent Knocks, " Hell No lays out several key responses that every person should know in order to protect themselves from government surveillance and interference with their rights. Concluding with the controversial 2008 Mukasey FBI Guidelines, which currently regulate the government's domestic response to dissent, Hell No is an indispensable tool in the effort to give free speech and protest meaning in a post-9/11 world.

III.

THE ATTORNEY GENERAL’S GUIDELINES FOR DOMESTIC FBI OPERATIONS

INTRODUCTION

The most recent Attorney General’s Guidelines for Domestic FBI Operations (often called the Mukasey guidelines after U.S. Attorney General Michael Mukasey), issued in December 2008 at the end of the Bush administration and reprinted here, currently governs FBI behavior. The Obama administration has done nothing to limit the broad powers given to the FBI under those guidelines.

Prior to the issuance of the Mukasey guidelines, former attorney general John Ashcroft, a few months after 9/11, issued guidelines that provided for wholesale political spying on dissenters. The Ashcroft guidelines included the repeal of Ford administration–era guidelines that had barred the FBI from attending political meetings and houses of worship to spy on activities and individuals not suspected nor accused of any crimes. The Ashcroft guidelines instituted massive surveillance of political meetings and rallies, religious gatherings, Internet sites and bulletin boards, and other purely expressive activities explicitly protected by the First Amendment The Ashcroft guidelines also authorized the FBI to enter massive numbers of names of individuals under such surveillance into government databases.

Extreme even by the Ashcroft standard, the Mukasey guidelines do not limit the FBI but afford it such untrammeled power that the guidelines might as well not exist. Under the Mukasey guidelines, the FBI may investigate anyone at all, even in the absence of any evidence whatsoever of a crime. The FBI is authorized to investigate political demonstrations, is newly permitted to employ a variety of intrusive investigative techniques previously off-limits, and is actually encouraged to make aggressive use of informants. Under these guidelines, the FBI’s role is officially expanded well beyond that of a domestic law enforcement agency. As the Center for Democracy and Technology concluded in its report, the Mukasey guidelines “cement the FBI’s status as a domestic intelligence agency.” ¹

The Mukasey guidelines expand the FBI’s mandate well beyond its traditional role of dealing with violations of the law. The bureau now has the authority and responsibility to investigate “threats to the national security,” an illdefined term that has been interpreted to cover all forms of political dissent, making the FBI into a kind of political police. Antiwar activists can and have been construed to represent such a threat. Because the FBI has also been given authority under the Mukasey guidelines to gather information regarding the conduct of foreign affairs, a whole other category of activist has also come under suspicion. For example, a member of a group supporting an end to the Israeli occupation of the West Bank and Gaza can now legally be investigated, as can anyone with any connection to a foreign policy issue—even a professor writing about a foreign country. As the guidelines themselves state, the FBI is entitled to obtain information related to foreign affairs even if “the information so gathered may concern lawful activities” (p. 103).

Even in its investigation of lawful activities, the FBI need not operate consensually under the Mukasey guidelines (although it is instructed to do so if practicable), but is permitted to use covert spying techniques developed to pursue criminal investigations. All legal authorities are available in the three areas of investigation outlined on pages 97–103.

In another example of overreaching, the Mukasey guidelines, under a section titled “General Authorities,” dispense with the Privacy Act restrictions on keeping records about United States citizens and permanent residents, flatly stating that all activities authorized by the guidelines are exempt from the Privacy Act. As surveillance and the gathering of information can be carried out without any criminal predicate and on the completely innocent, these guidelines have effectively granted the FBI the authority to use and retain records on millions of law-abiding Americans (p. 109).

Likewise, in a section called “Investigations and Intelligence Gathering,” the FBI is “authorized and encouraged” to identify and recruit informants even if the activities to be investigated are totally lawful. The use of informants is supposedly part of the FBI’s intelligence gathering function (p. 113). But once an informant is in a group, it is not realistic to expect him or her to confine his or her activities to merely listening without raising suspicions. As a result, informants often end up participating in active ways and even suggesting tactics, some of which may be illegal—depending on what the informant’s FBI handler suggests.

In a direct blow to lawful First Amendment activities, the Mukasey guidelines encourage the FBI proactively to obtain information “of possible investigative interest” on individuals and groups and to engage in surfing the Internet for almost any reason at all, including searching for individuals “who may have value as human sources,” a category with no apparent limits whatsoever. Under the Mukasey guidelines, the FBI is permitted to gather information that might be helpful to foreign intelligence, meaning that anyone who voices an opinion on almost any world issue is subject to investigation, recruitment, and record keeping.

The guidelines contain various lists of authorized investigative methods (p. 120 and p. 136), many permitted without any kind of court order. Examples include: mail covers (copying the addresses on mail), opening and reading mail, physical searches of personal or real property without a warrant under certain circumstances, consensual monitoring of communications (in cases where one of the parties, such as an informant, consents), electronic surveillance, closed-circuit television surveillance, use of global positioning and other monitoring devices, National Security Letters, and more.

In one of their nastier grants of authority, the guidelines authorize undercover operations, involving the infiltration of a group by an FBI agent, without any need for a criminal predicate. The United States has a long and sordid history of such undercover operations, the consequences of which can range from changes in the political direction of an organization, to dissension, to entrapment. In contrast to long-standing precedents, undercover operations involving political and religious organizations are now authorized by the Mukasey guidelines, requiring only approval by FBI headquarters. In short, under the Mukasey guidelines, everything we do, say, and write, every demonstration we organize or in which we participate in twenty-first-century America, is subject to FBI investigation.

Note: The following guidelines are reprinted here as they appear in the document available to the public on the Web site of the U.S. Department of Justice (www.justice.gov). Though the text was typeset to adhere to the format of this book, any typographical mistakes, grammatical errors, or stylistic inconsistencies were left as is to avoid altering the document in any way.

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THE ATTORNEY GENERAL’S GUIDELINES FOR DOMESTIC FBI OPERATIONS

Preamble

These Guidelines are issued under the authority of the Attorney General as provided in sections 509, 510, 533, and 534 of title 28, United States Code, and Executive Order 12333. They apply to domestic investigative activities of the Federal Bureau of Investigation (FBI) and other activities as provided herein.

TABLE OF CONTENTS

INTRODUCTION 94

A. FBI RESPONSIBILITIES–FEDERAL CRIMES,

THREATS TO THE NATIONAL SECURITY,

FOREIGN INTELLIGENCE 97

B. THE FBI AS AN INTELLIGENCE AGENCY 103

C. OVERSIGHT 105

I. GENERAL AUTHORITIES AND PRINCIPLES 107

A. SCOPE 107

B. GENERAL AUTHORITIES 107

C. USE OF AUTHORITIES AND METHODS 108

D. NATURE AND APPLICATION OF THE

GUIDELINES 110

II. INVESTIGATIONS AND INTELLIGENCE

GATHERING 113

A. ASSESSMENTS 119

B. PREDICATED INVESTIGATIONS 121

C. ENTERPRISE INVESTIGATIONS 125

III. ASSISTANCE TO OTHER AGENCIES 127

A. THE INTELLIGENCE COMMUNITY 129

B. FEDERAL AGENCIES GENERALLY 129

C. STATE, LOCAL, OR TRIBAL AGENCIES 132

D. FOREIGN AGENCIES 132

E. APPLICABLE STANDARDS AND PROCEDURES 133

IV. INTELLIGENCE ANALYSIS AND PLANNING 134

A. STRATEGIC INTELLIGENCE ANALYSIS 135

B. REPORTS AND ASSESSMENTS GENERALLY 135

C. INTELLIGENCE SYSTEMS 136

V. AUTHORIZED METHODS 136

A. PARTICULAR METHODS 136

B. SPECIAL REQUIREMENTS 139

C. OTHERWISE ILLEGAL ACTIVITY 140

VI. RETENTION AND SHARING OF INFORMATION 143

A. RETENTION OF INFORMATION 143

B. INFORMATION SHARING GENERALLY 143

C. INFORMATION RELATING TO CRIMINAL MATTERS 145

D. INFORMATION RELATING TO NATIONAL SECURITY

AND FOREIGN INTELLIGENCE MATTERS 147

VII. DEFINITIONS 154

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Introduction

As the primary investigative agency of the federal government, the Federal Bureau of Investigation (FBI) has the authority and responsibility to investigate all violations of federal law that are not exclusively assigned to another federal agency. The FBI is further vested by law and by Presidential directives with the primary role in carrying out investigations within the United States of threats to the national security. This includes the lead domestic role in investigating international terrorist threats to the United States, and in conducting counterintelligence activities to meet foreign entities’ espionage and intelligence efforts directed against the United States. The FBI is also vested with important functions in collecting foreign intelligence as a member agency of the U.S. Intelligence Community. The FBI accordingly plays crucial roles in the enforcement of federal law and the proper administration of justice in the United States, in the protection of the national security, and in obtaining information needed by the United States for the conduct of its foreign affairs. These roles reflect the wide range of the FBI’s current responsibilities and obligations, which require the FBI to be both an agency that effectively detects, investigates, and prevents crimes, and an agency that effectively protects the national security and collects intelligence.

The general objective of these Guidelines is the full utilization of all authorities and investigative methods, consistent with the Constitution and laws of the United States, to protect the United States and its people from terrorism and other threats to the national security, to protect the United States and its people from victimization by all crimes in violation of federal law, and to further the foreign intelligence objectives of the United States. At the same time, it is axiomatic that the FBI must conduct its investigations and other activities in a lawful and reasonable manner that respects liberty and privacy and avoids unnecessary intrusions into the lives of law-abiding people. The purpose of these Guidelines, therefore, is to establish consistent policy in such matters. They will enable the FBI to perform its duties with effectiveness, certainty, and confidence, and will provide the American people with a firm assurance that the FBI is acting properly under the law.

The issuance of these Guidelines represents the culmination of the historical evolution of the FBI and the policies governing its domestic operations subsequent to the September 11, 2001, terrorist attacks on the United States. Reflecting decisions and directives of the President and the Attorney General, inquiries and enactments of Congress, and the conclusions of national commissions, it was recognized that the FBI’s functions needed to be expanded and better integrated to meet contemporary realities:

[C]ontinuing coordination . . . is necessary to optimize the FBI’s performance in both national security and criminal investigations.... [The] new reality requires first that the FBI and other agencies do a better job of gathering intelligence inside the United States, and second that we eliminate the remnants of the old “wall” between foreign intelligence and domestic law enforcement. Both tasks must be accomplished without sacrificing our domestic liberties and the rule of law, and both depend on building a very different FBI from the one we had on September 10, 2001. (Report of the Commission on the Intelligence Capabilities of the United States Regarding Weapons of Mass Destruction 466, 452 [2005].)

In line with these objectives, the FBI has reorganized and reoriented its programs and missions, and the guidelines issued by the Attorney General for FBI operations have been extensively revised over the past several years. Nevertheless, the principal directives of the Attorney General governing the FBI’s conduct of criminal investigations, national security investigations, and foreign intelligence collection have persisted as separate documents involving different standards and procedures for comparable activities. These Guidelines effect a more complete integration and harmonization of standards, thereby providing the FBI and other affected Justice Department components with clearer, more consistent, and more accessible guidance for their activities, and making available to the public in a single document the basic body of rules for the FBI’s domestic operations.

These Guidelines also incorporate effective oversight measures involving many Department of Justice and FBI components, which have been adopted to ensure that all FBI activities are conducted in a manner consistent with law and policy.

The broad operational areas addressed by these Guidelines are the FBI’s conduct of investigative and intelligence gathering activities, including cooperation and coordination with other components and agencies in such activities, and the intelligence analysis and planning functions of the FBI.

A. FBI RESPONSIBILITIES—FEDERAL CRIMES, THREATS TO THE NATIONAL SECURITY, FOREIGN INTELLIGENCE

Part II of these Guidelines authorizes the FBI to carry out investigations to detect, obtain information about, or prevent or protect against federal crimes or threats to the national security or to collect foreign intelligence. The major subject areas of information-gathering activities under these Guidelines—federal crimes, threats to the national security, and foreign intelligence—are not distinct, but rather overlap extensively. For example, an investigation relating to international terrorism will invariably crosscut these areas because international terrorism is included under these Guidelines’ definition of “threat to the national security,” because international terrorism subject to investigation within the United States usually involves criminal acts that violate federal law, and because information relating to international terrorism also falls within the definition of “foreign intelligence.” Likewise, counterintelligence activities relating to espionage are likely to concern matter...