New report: ‘Domestic Intelligence: New Powers, New Risks’

Today I was a panelist at the rollout event for a new report published by the Brennan Center for Justice at the New York University School of Law, Emily Berman’s Domestic Intelligence: New Powers, New Risks. The report — which is focused on the expansion of investigatory powers in the 2008 Attorney General’s Guidelines for Domestic FBI Operations — advocates restricting situations in which the FBI can use highly intrusive investigative techniques; prohibiting “improper consideration of race, religion, ethnicity, national origin, or First-Amendment-protected activity”; and increasing oversight of the FBI’s use of its authority.

The report raises legitimate issues, and makes a

contribution — in particular, in its explanation of how investigatory standards have loosened since the Church Committee reforms in the 1970s. However, I emerged skeptical of its recommendation to limit the FBI’s investigative powers because I felt the report did not provide a full picture of what the impact would be on law enforcement efforts.

Context is key

In reviewing past FBI abuses — or, in Berman’s phraseology, “misplaced

domestic intelligence efforts” — the report twice singled out the same

Cold War-era effort, called the Library Awareness Program. As the report

recounts, this program “included regular FBI visits to public libraries

seeking information regarding individuals who read scientific and

technical journals, sometimes asking librarians to be wary of

‘foreigners’ or persons with ‘East European or Russian-sounding names.'”

This of course sounds absurd on its face: a blanket suspicion of

foreigners looking for scientific or technical information?

What the report does not mention is that during this period — in the

1980s — a man named Mahdi Obeidi was doing just that. Obeidi was

Saddam Hussein’s chief nuclear scientist, charged

with rejuvenating Iraq’s nuclear program after Israel destroyed the

Osiraq nuclear reactor in 1981. Saddam was fixated on

building a nuclear program that could not be easily subjected to attack

the way his above-ground reactor had been. He settled on centrifuge

technology, which creates great centrifugal force by rotating at

extremely high speeds, thus separating the heavier uranium-238 isotopes

from lighter uranium-235 isotopes. After uranium-238 has been drawn

out, the highly-enriched uranium remaining at the center can be siphoned

away. For a country trying to create a nuclear weapon, centrifuges are easier to hide and to protect than

above-ground reactors.

Obeidi, in his book The Bomb in My Garden,

describes how he was able to

create a working prototype of a magnetic centrifuge for Saddam Hussein

prior to Iraq’s 1990 invasion of Kuwait. A large part of the research

involved traveling through the US to glean the requisite knowledge

from scientists who rather naively put their trust in him; the

idea that Obeidi might be an

agent of a foreign power was simply outside their frame of reference. He

obtained a significant piece of information, which proved to be a key

part of the centrifuge program, from the University of Virginia’s

library. Obeidi had asked the librarian if he could see a critical

report on

centrifuge technology called the Zippe report. Asked to fill out a

lengthy form and provide identification for security reasons, Obeidi

instead asked: “Would it

be possible to ensure that the report is indeed here before I fill out

all these forms for it?”

The librarian brought him the report, and

insisted that Obeidi fill out

the forms before he read it. Obeidi, hesitant to do

so, asked: “Could I see it for a moment to be sure it is the right

document?” There, right in front of the librarian, he flipped through

the report — and found, in the back, an appendix listing all recipients

of the report when it was first issued in 1960. A look at

those names enabled Obeidi to get his hands on the report itself —

which in turn helped him build a centrifuge prototype.

So while

Berman’s report, without any further rationale or analysis, dismisses as

far-fetched the FBI’s concern about foreigners who were interested in

scientific or technical information, the Bureau’s concern was not

misplaced. In fact, key technical information that a

foreign agent gleaned from a US library proved central to the

astounding development of Iraq’s nuclear program in the 1980s. This

shows us that context is key — and a large part of my skepticism about

Berman’s report is its failure to contextualize the law enforcement

impact of the changes it proposes.

Does it make us safer?

I find it hard to believe

that following the report’s guidance would make us both freer and also

safer. Berman argues that the report’s recommendations actually improve policing efforts in two

ways: by reducing the deluge of information that confronts law

enforcement, and also by harmonizing relations between law enforcement and affected communities (in

particular the Muslim community) by reducing feelings of stigmatization.

As

to the first point, reducing the deluge of information, it

is true that analysts have trouble keeping up with the volume of threat

reporting. But that doesn’t mean that depriving them of information

therefore automatically improves analytic efforts. The question is: Would the report’s recommendations take away information that is truly

unnecessary, or would they

deprive law enforcement of information that it needs to more

effectively do its job? The report’s arguments on this point are, to put

it mildly, unconvincing. Given the lack of consultation with law

enforcement in producing the report, it is highly implausible that an

attorney with no investigatory background somehow stumbled upon the

magic formula to make the FBI more effective

by depriving it of investigatory authority. Among other things, this view assumes an almost

cartoonish incompetence on the part of agents in the field that is not

reflected in my experiences with the Bureau.

As to Berman’s second point, that this report’s recommendations would improve

relations between the FBI and the Muslim community, that may or may not

be true. But there are other ways to address the problem without

limiting the Bureau’s investigative authority; such as training dedicated to the

issue, and strong directives dealing with how to more effectively approach

investigations without alienating critical communities.

Terrorist profiling

The main claim that Berman makes for her recommendations as a net positive for

law enforcement effectiveness is that they would reduce instances of terrorist

profiling. How much they would so is not clear after a couple of careful

readings. The report’s exact recommendation is to “[p]rohibit improper

consideration of race, religion, ethnicity, national origin, or

First-Amendment-protected activity in investigative decisions.” This is a

rather imprecise line — but regardless of where exactly the report

draws the line, it’s clear that it has a more restrictive approach to

terrorist profiling than the 2008 guidelines provide.

Indeed, it

is evident that Berman’s report views profiling as an ineffective tool all

around; it speaks, for example, of an alleged “general consensus that

profiling is ineffective.” But the main factor that tends to hamper

discussions of profiling is lack of clarity about what the practice

means. Berman notes: “In the past, law enforcement organizations have

successfully policed groups engaged in organized violence — like the

mafia or the KKK — without trenching on the civil liberties of the

entire Italian-American or Southern Christian communities.” This is fair

enough, but when informed analysts speak of a terrorist profile, they

are not suggesting that the entire Muslim community should be viewed as

suspect.

A better question is: Can the factors singled out by Berman’s

report as particularly problematic — religion, race, ethnicity,

national origin, or protected First Amendment activities —  be

relevant when law enforcement authorities are determining whether to deepen an

investigation? It seems clear to me that such factors can have legitimate relevance, as I will flesh out

with three examples:

• A Muslim psychiatrist in the US

  military is found to be in communication with a high-profile terrorist

  recruiter in Yemen. This psychiatrist has also given several

  presentations outlining his views on Islam to his command. Is profiling

  these views — to see whether they map with what some dub the “salafi

  jihadi” interpretation of the faith, thus indicating a possible danger

  — appropriate?

• A college dropout in Arizona is posting on

  extreme right-wing web sites. He has a great amount of anti-government

  anger, which is focused in particular on his local congresswoman. These

  political views are protected by the First Amendment. Moreover, his

  views at first blush seem to map with those of the racist and

  apocalyptic Christian Identity movement. Is probing these views —

  because they constitute “First-Amendment-protected activity” and

  religion — unacceptable in determining whether he poses a threat?

  [Note: Though loosely based on the Jared Lee Loughner case, this fact

  pattern departs somewhat from it.]

• There is a jihadist web

  site, which Berman’s report counsels against “profiling” on two levels.

  First, the site itself contains religious content. And second, the

  speech on the web site, though extremely anti-US, is itself protected

  by the First Amendment. Should investigators be allowed to chat with

  individuals on the site to determine whether they intend to carry out

  attacks?

Further investigation of the jihadist web site would seem to be disallowed by

Berman’s recommendations, in that the report says the FBI should be

prohibited from “posing as other people … and recruiting informants to

glean more information in the absence of some factual basis for

suspicion.” Though these methods have been controversial, there were two arrests

in 2009 — of Michael Finton and Hosam Smadi — that used these

techniques. In both cases, the defendants literally pushed the button

that they thought would set off a bomb during the course of sting

operations.

Threat environment

Right now we’re in the midst of an era that is likely to see more

extremism and more violence designed to disrupt the system on which our

lives depend. Against such a backdrop we must be sure to safeguard civil

liberties — because it is all too easy to discard our cherished

liberties in the name of security — but we must also be attentive to

what powers law enforcement needs to keep us safe.

Extremism

itself can be as potent a threat to liberty as abuses inflicted by

government. Ask Molly Norris, the Seattle cartoonist who conceived of

“Everybody Draw Mohammed Day” after Comedy Central refused to air a

picture of Muhammad on their hit show South Park (even though

that same episode depicted Buddha snorting cocaine and Jesus looking at

Internet pornography). After threats to her life, she has disappeared

— as though she never existed. Ask Theo van Gogh, who was brutally

murdered on the streets of Amsterdam after producing a film critical of

the treatment of women in Islam. And ask Rep. Giffords.

So Berman’s report asks some important questions. It makes a

contribution. But I think its recommendations, if followed, would almost

certainly make us less safe. Because the report doesn’t acknowledge

that fact, I find it difficult to evaluate whether the proposals it

advances for stripping the FBI of its investigative authority would in

fact be worth the cost.

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