At What Price Security?

by Tony Harris

In the wake of the Oklahoma City bombing, there have been calls for
the expansion of FBI powers to investigate terrorist activity in the
United States and to relax restrictions courts face in prosecuting
suspected terrorists. Several legislators, most notably Sen. Arlen
Specter (R-PA) and Sen. Bob Dole (R-KS), have proposed untying the
hands of the FBI in its investigations of terrorist
organizations. What does this mean? The presupposition is that the FBI
is too constrained to do its job effectively. Let's examine those
constraints.

The Current FBI Guidelines

	The current FBI mandate says that "A domestic
security/terrorism investigation may be initiated when the facts or
circumstances reasonably indicate that two or more persons are engaged
in an enterprise for the purpose of furthering political or social
goals wholly or in part through activities that involve violence and a
violation of the criminal laws of the United States."1 This means that
the FBI can gather intelligence on groups and infiltrate them if it
appears that they are on the road to committing a crime, but haven't
yet broken any laws. According to Deputy Attorney General Jamie
Gorelick, even if there are no reasonable indications of potential
crimes, a preliminary inquiry is permitted under existing guidelines.
	Given these facts, it appears that the purpose of expanding
FBI powers is to allow spying on groups not associated in any way with
criminal activity. Or, in other words, everybody.
	Such proponents must believe that it would be extremely
unlikely for the FBI to take an interest in noncriminal organizations,
or that such power would only be used to sift out the criminal from
the noncriminal. However, before the current guidelines were in place,
the FBI did indeed take it upon itself to investigate and even
undermine groups which were not engaged in any criminal activity.

The FBI Before the Current Guidelines

	On March 8, 1971, a group called the "Citizens' Commission to
Investigate the FBI" broke into a Pennsylvania FBI office and removed
over 1000 classified documents. An entire third of the material stolen
covered political activity (200 left-wing groups, 2 right-wing groups,
and 10 cases involving immigrants).2 It soon became apparent that the
FBI had been conducting a massive counterintelligence program
(COINTELPRO) against dissident Americans since 1968.
	The Citizens' Commission began releasing copies of the stolen
documents to the press and to the subjects of investigation. The
subjects were various organizations involved in the antiwar and civil
rights movements. Student groups, individual students and professors
were also targeted. Among them were the Students for a Democratic
Society, the NAACP (the National Association for the Advancement of
Colored People), the Urban League, the National Mobilization Committee
to End the War in Vietnam, the Progressive Labor Party, and the
Congress of Racial Equity.3 The FBI was able to acquire court orders
to investigate the financial records of individuals who were clearly
not involved in any criminal activity. These persons were also subject
to wire-tapping. Many groups were successfully
infiltrated. Provocateurs were sent in to disrupt activities of these
organizations and to develop suspicions and hostilities between
coalitions by introducing false information. Information was sent to
the media to discredit certain groups and individuals.4
	National exposure and public censure was so intense in the
spring of 1971 that J. Edgar Hoover felt compelled to terminate all
COINTELPRO activities.


The FBI After the Promulgation of the Current Guidelines

	The current guidelines were issued in response to COINTELPRO
activities in 1976 by Attorney General Edward H. Levi and reissued in
1983 by Attorney General William French Smith. Interestingly, the FBI
was not overly hampered by these constraints in the account that
follows.
	In 1981, the FBI began investigating CISPES, the Committee in
Solidarity with the People of El Salvador. CISPES is a non-profit
organization which sends money, educators, farm equipment,
construction materials, medical supplies, and the like to peasant
organizations in El Salvador. From 1980 until 1992, the country was
embroiled in a civil war in which government forces battled a peasant
insurrection. CISPES also actively opposed US foreign policy, which
was to support the oligarchy which controlled the government. The
regime was characterized by wide-scale human rights violations and
outright massacres of civilian populations. This has been widely and
well documented.5 Training for some battalions of the Salvadoran
National Guard was provided in the US. At its height, US funds poured
into the country at the rate of a million dollars a day.
	There is no question that the peasant uprising benefited from
CISPES activities, and it is widely suspected that peasant militant
factions, most notably the FMLN (Farabundo Marti National Liberation
Front),6 benefited as well. The FBI had reason to believe that CISPES
shared cadre with the FMLN and began an investigation to determine
whether this was the case, specifically, whether CISPES was in
violation of the US Foreign Agents Registration Act. No evidence was
found and the case was dropped.
	In 1983, a new investigation of CISPES began, this time for
suspected participation in international terrorism. Here we approach
what is interesting about the CISPES case. US Code states that violent
acts directed either against a civilian population or government for
the purpose of coercion are considered terrorism.7 In this instance,
both the government and rebel forces fit the definition. Strangely,
only the once-removed supporters of the rebel side was targeted. The
guidelines by which the FBI investigates such cases are classified.8
We can only guess, based on the nature of the investigation.
	The primary source of evidence against CISPES came from a
Salvadoran expatriate named Frank Varelli. Mr. Varelli had substantial
right-wing connections in El Salvador, and was able to set up direct
channels of communication between the FBI and the Salvadoran National
Guard.9 However, one year after the FBI hired him, they determined
that his information was unreliable.10 Beyond accusing CISPES of
terrorist ties, Mr. Varelli claimed that CISPES was plotting to
assassinate President Reagan and that certain liberal members of
Congress were terrorists.11
	Not only was Mr. Varelli retained for three years after his
information became suspect, but the investigation widened to include
over 100 groups.12 Included were organizations such as the Roman
Catholic Maryknoll Sisters (Chicago, Oklahoma City), the United
Automobile Workers (Cleveland), the National Education Association
(Cleveland), and the Women's Rape Crisis Center (Norfolk).13 Agents
were also authorized to investigate students at Florida State
University. A theology professor from Xavier University, who had no
involvement with CISPES, but who had visited El Salvador as a member
of a church group, was targeted as part of the CISPES counter
intelligence operation.14
	No arrests for any criminal or terrorist activity resulted
from the FBI investigation. No evidence was produced showing that
CISPES provided military assistance to the FMLN.15

The Senate Select Committee on Intelligence reports:

	From March 1983 until June 1985, the FBI conducted an
international terrorism investigation of CISPES on the basis of
allegations that should have not been considered credible, broadened
the investigation even beyond the scope justified by those
allegations, and continued the investigation after the available
information had clearly fallen below the standards required by the
applicable guidelines.16
	We must assume that the FBI may have had justification in
beginning its investigation of CISPES. However, the zeal and the scope
of the operation suggest that simple jurisprudence does not alone
account for their motivations. The facts of the case are far too
exaggerated. We can only wonder what role CISPES' effective opposition
to Administration foreign policy played in Bureau priorities.

Current Proposals

	Given the FBI's underwhelming display of self-restraint in the
past, one is left rather confused by the debate surrounding their tied
hands. But this topic was limited to the selection of appropriate
targets of investigation. Recent anti-terrorism proposals made by the
President concern granting expanded powers of investigation once
targets have been chosen.
	The following features appear in President Clinton's
proposals:17 
	
	 1000 new Federal agents.  

	 Establishment of a
counter-terrorism center under FBI direction.  

	 Increased financing of informers and intelligence
gathering operations.  

	 Permitting the use of military experts in dealing with
chemical or biological weapons "in very limited circumstances".18

	 Legislation requiring the use of "taggants" in
explosives. These microscopic particles allow the constituents of a
bomb to be traced after the explosion.19 

	 Increase punishments for terrorist acts. An attack
against any federal employee will be included if the crime is
connected to the employee's official duties.  

	 Amending the Electronic Communications Privacy Act of
1986 [P.L. 99-508] This would authorize "emergency" electronic
surveillance of suspected terrorists, including roving wiretaps, and
would make a court order unnecessary before obtaining records of local
telephone calls. "Under current guidelines, wire taps may only be used
with the consent of a Federal judge."20 

	 Provide funds for a law that requires telephone companies
to install and maintain electronic surveillance equipment for use by
law enforcement officials.21 

	 Require hotel-motel operators, airlines, bus companies
and other transportation barriers to provide records to the FBI in
national security cases. These records now are provided to state and
local law enforcement, but the FBI must get them voluntarily.22 

	 Allow the FBI to obtain credit reports for
counterintelligence and counter-terrorism cases. The Supreme Court has
already ruled that once a person has disclosed this information to a
third party, such as telephone company or hotel, then the right to
privacy has been waived.
	
	As discussed at the outset of this article, there have been
proposals from other quarters to allow the FBI to spy on groups not
involved in any criminal activity. President Clinton did not propose
changing these guidelines.
	There are seven pieces of legislation pending before Congress
which relate to the proposals made by President Clinton. The two
proposals made directly by the Administration are the Omnibus
Counter-Terrorism Act of 1995 and the Anti-Terrorism Amendments of
1995. The latter was unavailable at the time this article was
prepared.

Omnibus Counter-terrorism Act of 1995

	The most ominous proposal is detailed in the Omnibus
Counter-terrorism Act of 1995 (HR 896). In a nutshell, it is designed
to make what CISPES did in the 1980s illegal and what the FBI did to
them legal.
	The President may name a group a terrorist organization, or an
individual a terrorist. This designation is not subject to review and
a defendant may not question the validity of the designation in
court. Presidents may change their mind if there are economic or
political reasons for not designating a terrorist organization as
such.
	The PLO is named specifically here, even though the US itself
is providing development aid to the Palestine Authority in the
Occupied Territories. Any representative of a terrorist organization
is subject to special proceedings. The Secretary of State or the
Attorney General may declare a person to be a representative, and that
determination is not subject to court review.
 	A person is considered a terrorist if they provide material
support to a terrorist organization, or provide information about a
potential target of terrorism to said group. One cannot solicit
membership for such a group, nor do any fundraising. One may solicit
funds under a license granted by the Treasury Department, provided
that the funds are intended to be used exclusively for religious,
charitable, literary, or educational purposes. The person must be able
to provide records of how the money is spent within two days of a
request by the State Department. Of course, if a license is denied,
the person has been self-identified as a potential terrorist and is
subject to arrest under the provisions of this bill.
	Pursuant to investigations concerning fund-raising, the
Department of Justice and the Treasury Department can issue their own
subpoenas and hold their own hearings. In subsequent criminal trials,
the prosecution may stop any line of questioning that may encroach on
information the government has deemed as classified.
	Consider this applied to a real example. In El Salvador, the
US supported a government which was widely and uncontroversially
involved in terrorist activities against its own citizenry, involving
the operation of death squads, "disappearances," mass
murders-practically the complete suite of available means. However, it
was the peasant uprising against this repression that was labeled by
the US government as "terrorist." (Notice that it is not just the case
that non-governmental combatants are the terrorists, as US support for
the Contras in Nicaragua's civil war shows.)
	Americans who publicly expressed horror and shame about US
involvement in El Salvador came under the scrutiny of the FBI. CISPES,
which (presumably) indirectly supplied aid to militant peasants, was
targeted with a vigor difficult to understand given the evidence
available. Had this legislation existed then, these Americans would
have gone to jail. The politicians who provided military and economic
aid to El Salvador's ruling elite would not have been so prosecuted.
	Most people have been convinced that more aggressive measures
against terrorism are required. However, the autocratic manner in
which these measures are to be implemented has fallen under severe
criticism. COINTELPRO, Watergate, and Iran-Contra are still fresh in
the memories of many Americans hearing the government response. And
despite the seeming necessity, many are having difficulty forgetting.


1 From the Federal guidelines for domestic security investigations.
Adopted in 197 6 by Attorney General Edward H. Levi and reissued in
1983 by Attorney General William French Smith.

2 Another third were manuals and routine forms.  The remainder
concerned crime like bank robberies and interstate theft.  Desertion,
draft evasion and gambling also appeared.  Bill Kovach, "Stolen FBI
Papers Described as Largely of a Political Nature," New York Times, 13
May 1971, P. 18.  

3 Davis, James.  Spying on America: The FBI's Domestic
Counterintelligence Program, New York: Praeger), p.131.  

4 Churchill, W. & Wall, Jim. The COINTELPRO Papers, (Boston: South End
Press) 

5 Report on human rights in El Salvador (1982) compiled by Americas
Watch Committee and the American Civil Liberties Union. (New York:
Vintage Books), 1982.  Didion, Joan. (1983) Salvador (New York : Simon
and Schuster) El Salvador's Decade Of Terror : Human Rights Since the
Assassination of Archbishop Romero (1991) Americas Watch, (New Haven :
Yale University Press) 

6 Frente Farabundo Marti de Liberacion Nacional.  

7 International terrorism, as defined by USC Section 1801(p.100),
must: (1) involve violent acts or acts dangerous to human life that
are a violation of the criminal laws of the United States or of any
State that would be a criminal violation if committed within the
jurisdiction of the United States or any State; (2) appear to be
intended- (a) to intimidate or coerce a civilian population; (b) to
influence the policy of a government by intimidation or coercion; or
(c) to affect the conduct of a government by assassination or
kidnapping; and (3) occur totally outside the United States, or
transcend national boundaries in terms of the means by which they are
carried out, the presons they appear intended to coerce or intimidate,
or the local ion which thier perpetrators operate or seek asylum.

8"FBI Papers show wide surveillance of Reagan Critics," New York
Times, 28 Jan. 1988.  

9"Documents Appear to Contradict Sessions on Probe," Boston Globe, 29
Nov. 1989.  

10 Ibid.  

11 Waller, Michael.  (1991) The Third Current of Revolution: Inside
the "North American Front" of El Salvador's Guerilla War, (Lamham,
Maryland: University Press), p.181.  

12 FBI Papers show wide surveillance of Reagan Critics," New York
Times, 28 Jan. 1988.  

13 Ibid.  

14"FBI Stand is Contradicted on Surveillance of Policy Foes" New York
Times, 14 Feb 1988.  

15 FBI Papers show wide surveillance of Reagan Critics," New York
Times, 28 Jan. 1988.  

16 The FBI and CISPES, Report of the Select Committee on Intelligence,
United States Senate, with additional views, 14 July 1989, p. 97.  

17 All sources of legislation and commentary: Legislate information
services, legislate.com 

18 Article 12301,Legi-Slate, Wednesday, May 3, 1995 

19 Quoted from Article 11701, Legi-Slate, Thursday, April 27, 1995.

20 Ibid., quoted.  

21 Ibid., quoted.  

22 Ibid., quoted.  

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