Alright y'all, welcome back to the show.
It's Anti-War Radio.
Thanks for joining me.
On the phone is Mike German, Policy Counsel on National Security and Privacy at the ACLU Washington Legislative Office.
Welcome to the show, Mike.
How are you doing?
Very good.
Thanks for having me.
Well, I'm very happy to have you here.
Oh yeah, I should mention here, as it says in your bio, a 16-year veteran of federal law enforcement.
It says you were a special agent with the FBI.
Right.
Where you specialize in domestic terrorism and covert operations.
That's right.
Alright, so, geez, something tells me we've talked before, but it's been a while.
Yeah, yeah, we definitely have.
I apologize.
It's been a couple thousand interviews now.
Right, yeah, I'm sure.
Anyways, so there was this piece by Charlie Savage the other day in the New York Times.
I'm sorry, I forget if it was yesterday or the day before that.
Monday, yeah.
Monday, about expanded powers for the FBI to begin criminal investigations of American citizens.
Can you explain much better than me, please, about what exactly all that meant?
Sure.
The FBI's investigative authorities are governed by something called the Attorney General Guidelines.
These are rules put out by the Department of Justice.
They were originally put out in 1976 after the intelligence abuses during the Hoover era came to light.
They have been modified many times over the years, most significantly in 2002 under Attorney General John Ashcroft, and then closer in December of 2008 under Attorney General Michael Mukasey, where they had the most radical change where they actually took away any requirement of a factual predicate before FBI agents could start doing a type of investigation they were calling an assessment.
So in other words, they don't have to wait for evidence of a crime being committed.
They can begin an investigation of a person.
That's a really big difference right there, right?
Yeah, it's actually even a little more radical than that, Scott.
They don't need an allegation.
They don't need any fact to suggest anybody is doing anything wrong.
They can just start investigating people on a whim under this assessment category.
They can even investigate you just to see if you would make a good FBI informant.
So your conduct no longer protects you from very intrusive FBI investigations, the types of authorities they're allowed under this assessment category include physical surveillance.
They can follow you around from place to place, watch you 24 hours a day.
They can task informants to go up and meet with you and your friends and neighbors and colleagues.
They can use FBI agents acting in ruse to gather information about you under false pretenses.
They can use grand jury subpoenas to get certain telephone records.
So these are very intrusive authorities that they're allowed with no factual basis, no requirement that you've done anything wrong or even suspected of doing wrong.
So when those were implemented in 2008, the FBI put together an internal policy called the Domestic Investigations and Operations Guide that implemented this 2008 Attorney General Guidelines.
Well, we got called in last month because they were letting us know that they were going to amend that just a couple of years later to give themselves even more authority so that FBI agents could actually start gathering information about you, even without opening an assessment.
So even just the minor administrative hurdle of actually opening an official case, they can start collecting this information from commercial databases.
These are subscription services, not just online stuff.
They can go to state and local law enforcement and gather information.
Again, this isn't just criminal information.
This could be information where you were a victim or a witness to a crime, and they could collect that information without even opening up a case.
And so we thought that was an extraordinarily broad claim of authority to investigate completely innocent Americans.
Well, I hate to come off sounding all naive and young and things like that, but is there no law that prevents this?
This is all just – the worst abuses of Hoover were only corrected by simple guidelines that could just be rewritten?
Unfortunately, that's true.
Congress, after the abuses were discovered, started working on what's called the legislative charter, which would have created legal restrictions around what the FBI could do.
And the attorney general guidelines were sort of written as a compromise that, you know, okay, we'll create our own rules and we'll follow them.
And so, you know, unfortunately under that system, each new attorney general could come in and modify the rules a little bit here, a little bit there, until now we're back into a situation where the FBI is all but unregulated again and is authorized – being authorized by the Department of Justice to investigate completely innocent people.
And what happened under the Hoover era when there weren't rules was that people moved from investigating somebody who was actually doing something wrong to somebody who was saying something that an agent perceived as anti-government to somebody who's just, you know, supporting a particular political position and started using techniques rather than just criminal justice techniques, rather than just charging them with crimes.
They were using these other what were called dirty tricks, you know, mailing anonymous letters to your boss to try to get you fired, you know, mailing information to your spouse to cause matrimonial disharmony.
I mean, really awful things.
And what we've seen since 9-11 when these rules have been changed is the FBI is once again investigating groups because of their political beliefs.
There was just a Department of Justice Inspector General report released in 2010 that detailed that the FBI had spent years investigating groups like Greenpeace and People for the Ethical Treatment of Animals and Thomas Merton Peace and Justice Center for their political beliefs and were gathering First Amendment activity – information about their First Amendment activities that was being put in FBI files.
So, you know, unfortunately, not too surprisingly, once you remove the rules, this type of abuse is going to occur again.
Well, of course, part of this is because they, you know, whatever, quintupled or whatever the FBI's counterterrorism forces and the rest of these after September 11th, and yet there's no al-Qaeda around here anywhere.
And so they've got nothing to do except entrap people.
And I guess they're running out of Muslims to entrap in this country.
And so then, you know, what are they going to do except pick on lefties all day?
There was another thing in The New York Times about this long-term intense surveillance of what appeared, according to the Times article anyway, to be what I'm here to tell you is just a typical left-wing Austin activist.
And they're treating this guy like, you know, he's about to lead Mao Zedong's revolution over here or something.
Right.
And, you know, as a former law enforcement officer, I mean, there are bad people out in society.
There are criminals who are doing harm to people.
And so, you know, we tend too often to think, well, you know, if we give the police more authority, they'll use it wisely.
But what we find is that they don't.
That when they don't have guidelines that restrict them to investigating only people who they have some reason to believe are doing some illegal activity, what they end up is investigating people they shouldn't.
And, you know, unfortunately, because so much of what the FBI does now is shrouded in secrecy, it's very difficult for us to get those cases out.
I mean, the gentleman you're referring to in Texas, there was Scott Crowe, a local activist, who actually had to spend years using the Freedom of Information Act, trying to coax this information out of the FBI.
And he's only one of, you know, many that we uncovered through Freedom of Information Act requests.
And, you know, that is probably only the tip of the iceberg.
Well, oh, are you still there?
Yep.
Oh, OK.
I guess that was the FBI hanging up on this phone call.
They're sick and tired of it.
I'm telling you, my cell phone makes a weird noise on every call going out now.
I can't tell all the different tap sounds from each other.
But I sort of suspect it's like the Simpsons where they have a wire in between their floors, one for the NSA and one for the FBI and one for the ATF.
You know, it is amazing.
And, you know, we just recently came through the Patriot Act reauthorization debate.
And something that Senator Wyden from Oregon said was really very chilling.
He indicated that, you know, the government had a secret interpretation of the Patriot Act and that they were using it in a way that he thought would shock and anger most Americans if they find out about it.
And yet the Department of Justice is unwilling to release that information.
Yep.
And on it goes.
All right.
Well, thanks very much for your time.
Mike German, everybody, from the ACLU.
Keep fighting them up there.
Appreciate it.
Thank you.
