A Letter to Attorney General Ashcroft

As many of you may be aware, the New York Times reported on December 1, 2001, that Attorney General Ashcroft is considering relaxing the guidelines to allow greater use of domestic spying in the fight against terrorism. Those who recall the sordid excesses of the FBI in the 1960s and 1970s know that relaxing those guidelines will return us to the days when the FBI engaged in illegal wiretapping and bugging, poison-pen letters, and a multitude of other dirty tricks against student protesters and civil rights leaders. In most cases, the targets had done nothing wrong other than exercise their right to protest government policies.

The current guidelines do not hobble the FBI in their investigations of terrorism. They do require a "reasonable suspicion" (lower than probable cause) that criminal activity may be afoot before initiating an investigation. Apparently, this already low standard is what Ashcroft wants to "relax," to allow a bug in every mosque and any other church or organization which may be "subversive."

The guidelines may be changed at any time by the Attorney General, and no rule-making process is required. Thus, the only leverage we have is to use our voices to "just say NO." Below is a sign-on letter for organizations asking Attorney General Ashcroft to keep the current guidelines in place. We are looking for a broad range of organizations from both the "left" and the "right" to demonstrate large support for the current guidelines. If your organization wishes to sign on, let me know, or my assistant, Eric Ham at 202-675-2316. We would like to send the letter by the end of next week (3/1). I am reproducing the letter below since some of the lists do not allow attachments -- sorry for the long post!

Marv Johnson
Legislative Counsel
122 Maryland Avenue, NE
Washington, DC 20002
(202) 675-2334

Attorney General John Ashcroft
U.S. Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530

Dear Mr. Ashcroft:

The undersigned organizations are writing to ask you to leave the current guidelines on domestic spying in place rather than relax them.(1) Relaxing the guidelines to allow the FBI greater freedom to investigate individuals and groups based on their beliefs is unwise, and unsound law enforcement policy.

The Church Committee Hearings in the 1970s revealed an FBI run amok. Americans were shocked to learn the FBI "monitored political demonstrations, infiltrated civil rights groups, conducted illegal break-ins and warrantless wiretaps of anti-war groups, [and] sent anonymous poison-pen letters intended to break up marriages of political group leaders."(2)

The Guidelines were adopted to prevent the intrusive investigations and techniques used by the FBI to target individuals or groups because of their beliefs. They make it clear that constitutionally protected advocacy of unpopular ideas or political dissent alone cannot serve as the basis for an investigation.

The rules require a valid factual basis for opening an investigation, which largely precludes wholesale FBI fishing expeditions. The threshold for opening a formal investigation is already minimal, requiring "reasonable indication." Preliminary inquiries require even less. The Bureau can begin a preliminary inquiry when it receives any information or allegation "whose responsible handling requires some further scrutiny."(3) Nothing, however, prevents a preliminary inquiry from turning into a full investigation upon the Bureau receiving "reasonable indication" that a crime has been, or is about to be, committed.

Furthermore, the FBI's hands are not tied waiting for a crime to occur. The Guidelines recognize that "[i]n its efforts to anticipate or prevent crime, the FBI must at times initiate investigations in advance of criminal conduct."(4)

Even advocacy of violence, protected speech under the First Amendment, may form the basis for an investigation when there are indicia that a crime may be committed. While urging respect for the First Amendment, the guidelines state: "When, however, statements advocate criminal activity or indicate an apparent intent to engage in crime, particularly crimes of violence, an investigation under these guidelines may be warranted. . ."(5)

The Guidelines, therefore, focus the FBI on investigating crimes or gathering foreign intelligence information rather than harassing dissenters.

History has demonstrated that without those guidelines, the FBI targets individuals and groups based on their advocacy and association rather than for legitimate law enforcement. Relaxing the guidelines to allow greater spying on groups based on their First Amendment activity is counter-productive and wastes resources.

Political spying subverts our political freedom. It chills those who disagree with the status quo. Our Constitution allows everyone to have a voice, whether or not they agree with the majority.

Increased political spying not only harms our freedoms but has other consequences as well. It diverts resources from fighting real crime. While there may be groups in our country that espouse views with which many disagree, a relatively small number ever engage in criminal activity. Every FBI agent spending his days taking photographs at an anti-abortion rally, gun show, or other political rally is an agent not engaged in preventing and fighting crime.

Political spying is also likely to increase violence. Justice Louis Brandeis recognized long ago that the First Amendment acts as a safety valve. If people marginalized in our society are free to express their views and engage in political activity, they are less likely to resort to violence.

The FBI is already apparently filing reports on those who disagree with the current administration.(6) Relaxing the Guidelines will only result in more intrusive activity. History and current events demonstrate the need for Guidelines that focus the FBI on investigating crime and legitimate intelligence-gathering. We, therefore, urge you not to relax those guidelines.

(1) On December 1, 2001, the New York Times reported that Attorney General Ashcroft is considering a plan to relax restrictions on the FBI, giving them greater freedom to spy on religious and political organizations. Johnston and Van Natta, "Ashcroft Seeking to Free FBI to Spy on Groups," The New York Times, December 1, 2001.

(2) David Cole, "Strict Scrutiny: How Not to Respond to Hate Groups," Legal Times, Weeks of August 25 and 30, 1999.

(3) The Attorney General's Guidelines on General Crimes, Racketeering Enterprise and Domestic Security/Terrorism Investigations, at Section IIB.

(4) Id. at Section I.

(5) Id.

(6) Christian Science Monitor, "Political Dissent Can Bring Federal Agents to Door," January 8, 2002, located at: For example, San Franciscan Barry Reingold was interviewed by the FBI after making remarks in his local gym that "Bush has nothing to be proud of. He is a servant of the big oil companies and his only interest in the Middle East is oil." Two agents showed up at his home. After the agents assured him he was entitled to freedom of speech, Reingold said "Thank you. That ends our conversation." When Reingold closed his door, he heard one of the agents say "But we still need to do a report."