Never Waste A Good Crisis, FBI Edition

President Trump’s decision to summarily dismiss now-former FBI Director James Comey has sparked grave concerns in many quarters.  The move has been described as a profoundly dangerous example of the President’s authoritarian instincts.  It has led to warnings of a potential constitutional crisis, speculation whether the president is guilty of obstruction of justice, and skepticism that the President’s proffered reasons for the termination actually underlie his decision.  Perhaps most importantly in the short-term, the move has raised serious questions about the integrity of the Bureau’s investigation into the Trump campaign’s possible ties to Russian meddling in the 2016 election, leading to renewed calls from both sides of the aisle for a special prosecutor.

While the furor over Tuesday’s events is entirely appropriate, there is another way to describe the situation: an opportunity.  Dismissal of one FBI Director means that confirmation hearings for a new Director are on the horizon.  And while some legislators have advocated holding up the confirmation process until a special prosecutor for the Russia investigation is appointed, focusing any hearings solely on that issue would be letting a perfectly good crisis go to waste.  To be sure, turning the confirmation hearings into a referendum on the need for a special prosecutor transforms a potentially complex set of questions about the functions of government bureaucracy into an easily digestible political issue around which both legislators and the public can rally.     

It would be a mistake, however, for lawmakers to focus on the Russia question to the exclusion of others.  The question of Trump’s associates’ ties to Russia must be answered and appropriate action must be taken if evidence of impropriety surfaces. But there are myriad systemic, persistent concerns about the FBI’s operations, having nothing to do with President Trump or with Russia, that civil libertarians have been trying to place on the legislative agenda for years.  Confirmation hearings for a new Director provide a unique chance to draw both the Senate and the public’s attention to these issues.

But Jim Comey’s confirmation hearings were just four short years ago, you may say.  Why wasn’t that the opportunity to address these concerns?  Unfortunately, Comey’s hearings failed to spark a meaningful conversation on these issues.  Instead, Comey’s reputation as an independent, non-partisan straight-shooter willing to speak truth to power that came from his refusal to renew President Bush’s warrantless wiretapping program made questioning his civil liberties bona fides taboo.  President Trump is unlikely to find a nominee with similar credentials, if such a person even exists.  Assuming the next Director completes his 10-year term (perhaps a foolish assumption given the week’s events), the upcoming confirmation hearings present an opportunity that will not come again soon.  Legislators should make the most of it.

To be sure, Senators should satisfy themselves that the next FBI Director will continue to follow the Russia investigation wherever it leads.  But they should also probe the nominee’s views regarding three other aspects of FBI operations. 

First is the issue of so-called “back door searches” of information collected as foreign intelligence. As has been discussed elsewhere, the FBI has the authority to search data acquired pursuant to the FISA Amendments Act’s Section 702 program, which collects electronic communications from foreign targets.  That collection program also captures an unknown (but large) number of communications involving Americans.  The FBI can then extract U.S. persons’ communications from the database where this information is stored.  This is, quite simply, a flagrant violation of Americans’ privacy rights.  If the FBI wanted to acquire that very same information directly, the Fourth Amendment would require a warrant based on probable cause.  Not so when querying the Section 702 database.  Instead, FBI agents have free access to this Fourth Amendment protected material.  Moreover, while the information can be collected only for foreign intelligence purposes, the FBI may access it for any investigation, a process that has been described as letting the FBI “Google” Americans’ electronic communications.  And while the NSA’s recent decision to discontinue so-called “about” collection under the Section 702 program is a welcome development, it does not resolve the problem.  Indeed it might exacerbate it.  Until the end of April, the FBI did not have access to the results of so-called “upstream” collection under Section 702, because “about” collection so significantly expands the scope of what the NSA captures.  Thus only information collected under the “downstream” or “Prism” portion of the Section 702 program was available for FBI searches.  Now that “about” collection has been ended, however, the FBI will have access to information collected under either aspect of the Section 702 program, thereby increasing the volume of U.S. persons’ communications subject to search.

The collection and use of Americans’ communications is sure to be front and center in any debates regarding the renewal of Section 702, which sunsets at the end of this calendar year.  But whether and how the FBI should be permitted to access and use that information is an issue separate and apart from the renewal of Section 702’s collection authority.  Regardless of the form that renewal may take, the Senate should not confirm any nominee not willing to disavow the power to search Americans’ electronic communications without a warrant.

The second issue requiring significant reform is the FBI’s expansive surveillance authorities.  In 2008 the internal rules governing the FBI’s domestic operations underwent a major overhaul. These guidelines included several disturbing changes to the FBI’s investigative powers.   For the first time, the FBI had a level of investigation—assessments—that could be opened in the absence of any factual predicate.  In other words, there need not be any particular indication of crime or threat.  Despite the absence of reason for concern, agents performing assessments are permitted to employ a number of highly intrusive investigative methods.  They may search any database, including the one containing Section 702-acquired communications.  They may recruit or task informants.  They may infiltrate peaceful religious, political, and advocacy organizations.  They may engage in community mapping, identifying “locations of concentrated ethnic communities” as well as “ethnic-oriented businesses.”

In short, there are very few constraints on the FBI’s ability to collect intelligence.  And the Bureau has not been shy about exercising this authority.  While President Trump’s call for surveillance of mosques and the creation of a “Muslim registry” sparked outrage during the campaign, the FBI is already way ahead of him.  The Bureau regularly sends undercover agents or confidential informants into the Muslim community, including into mosques, to gather information about American Muslims.  Sometimes those agents or informants go further, hounding  members of the Muslim community to join in their (nonexistent) terrorist plots in order to net so-called “terrorists” for prosecution.  Whether the individual involved ever would have considered engaging in violence absent the FBI’s encouragement is not a question the Bureau seems to ask.

The Muslim community is not the only victim of the FBI’s overgrown intelligence-gathering apparatus.  The Bureau also spies on political activists, including the Black Lives Matter movement, the Occupy movement, and the Standing Rock Water Protectors protesting the Dakota pipeline.  The fact that the exercise of First Amendment rights seems to attract FBI attention should concern us all.  Such attention inevitably leads to self-censorship, a chilling of speech and association, and a general decline in participation in civil society.  Moreover, both the Occupy and Standing Rock investigations were conducted not as assessments, but as actual counterterrorism investigations, even though the agents involved acknowledged everyone had peaceful intentions.

The third area of concern requires taking an even larger step back.  It is time for a (re)assessment of the place an institution like the FBI has in a democracy.  The FBI’s role in the 2016 election and the nature of Comey’s dismissal put the lie to the assertion that the modern FBI is not a political entity.  The FBI is no less political than the EPA or Immigration and Customs Enforcement. The question of how the FBI perceives threats and where it is willing to strike the balance between liberty and security when such a tradeoff is necessary are no less political than endorsing or rejecting the conclusion that humans have contributed to climate change.  The FBI has no legislative charter setting out its mission or responsibilities.  It’s run by a political appointee who answers to an appointed cabinet member, either or both of whom may be dismissed, as Comey noted in his farewell letter to his FBI colleagues, “for any reason, or for no reason at all.”

The idea that the FBI is, in fact, a political institution, should come as no surprise to students of history.  Throughout its existence, the story of the FBI has been one of an institution that consistently veers into the politicization of investigations and intelligence collection.  Efforts to curb these activities have on occasion brought the Bureau to heel for a time, but the drift toward suspicion of dissenters and minorities inevitably returns.  Changes to the FBI’s guidelines over the last 16 years reflect this trend.  Restraints on surveillance of First Amendment-protected activities have been removed and the priorities of the institution have shifted from crime-solving to intelligence collection.

It’s time to expose as a myth the idea that FBI is simply a federal law enforcement agency and recognize that it is a domestic intelligence agency, with extraordinarily broad powers to investigate—or intimidate—Americans with very little, if any justification.  Indeed, the Bureau characterizes itself as “an intelligence-driven and threat-focused national security organization.”  It goes on to recognize that it has both intelligence and law enforcement responsibilities, but it is clear where its priorities lie.  This may be the type of institution the American people want.  But if public reaction to the NSA’s intelligence activities revealed over the past several years is any guide, this is not the case.  But only by being willing to consider the FBI as it truly exists today can we exercise any democratic control over it.

These issues implicate America’s core values:  freedom of speech, individual privacy, equality of treatment irrespective of one’s color, creed, or political views.  Before confirming any nominee for FBI Director, the Senate should ensure that s/he shares those values and is willing to put them into practice.

Image: Chip Somodevella/Getty

 

About the Author(s)

Emily Berman

Assistant Professor of Law at the University of Houston Law Center