The New York Times

June 4, 2002

Misdirected Snooping Doesn't Stop Terror


 WASHINGTON When Attorney General John Ashcroft announced last week that he has freed F.B.I. agents from restrictions on counterterrorism investigations, he no doubt hoped to ease the concerns of Americans alarmed by F.B.I. blunders before Sept. 11. But the mistakes that kept the F.B.I. from picking up on hints of the violence to come arose from a failure of vision, not an absence of legal authority. The agency needs to focus on terrorist crime; it doesn't need to indulge in wasteful and undemocratic monitoring of legitimate political and religious activity.

The guidelines that Mr. Ashcroft amended had restricted F.B.I. spying absent some information about a potential federal crime. They were adopted in response to the F.B.I.'s widespread political spying on antiwar and civil rights groups and other dissident organizations and movements in the 1960's, 1970's and 1980's. Even under the restrictions, some F.B.I. counterterrorism investigations have featured blanket monitoring of political groups, rather than a careful focus on prevention and deterrence where crime is actually likely. The Ashcroft guidelines will take the F.B.I. even further in that direction.

One example of what can go wrong when the F.B.I. loses its criminal focus goes back to the 80's, when the F.B.I., concerned about possible terrorism at the Los Angeles Olympics, began investigating a group of politically active Palestinian students in Los Angeles. The bureau used electronic wiretapping, videotaping and round-the-clock surveillance. For three years agents attended public demonstrations and meetings, seized literature and had it translated, and reported on the "anti-Reagan" slogans chanted at rallies. Tracking the group's distribution of a Palestinian magazine as if it were drugs, they intercepted copies at the Los Angeles airport, weighed the boxes to estimate how many each contained and then spent countless hours tailing the people who picked them up. In 1986, agents attended a public community dinner the students held to celebrate Palestinian culture and politics. Although none of the agents could speak or understand Arabic, they reported afterward that by observing posters of people with assault rifles, the "tone" of the speeches, and "the music and entire mood" of the gathering, they had divined that it was a fund-raising event for terrorism.

In the end, according to Congressional testimony in 1987 by William Webster, the former F.B.I. director, the bureau found no evidence that anyone in this group had engaged in anything criminal, much less terrorist. Yet rather than close the investigation, the F.B.I. wrote a 1,400-page report in 1986 urging the Immigration and Naturalization Service to deport these people to hamper their political activities. The eight were arrested because, Mr. Webster testified, "they are alleged to be members of a worldwide Communist organization which under the McCarran Act makes them eligible for deportation." Fifteen years later, while they lead productive lives and raise families, the F.B.I. and the I.N.S. continue to seek their deportation (and I continue to defend them on a pro bono basis).

It is legitimate, of course, to investigate individuals or organizations where there is credible suspicion that they are engaged in or planning criminal conduct. But when investigations go on for years and focus entirely on lawful political activity, the F.B.I. is not only wasting its time but violating constitutional rights.

All of the actions against the students I represent were undertaken under the guidelines that Mr. Ashcroft found too restrictive. The new guidelines, which remove even the threshold requirement of information of a potential crime, are virtually certain to deflect the attention of law enforcement from stopping terrorist acts toward policing lawful political activities. Rather than inviting the F.B.I. to indulge in political spying and reach conclusions of guilt by association, we should demand that the bureau fight crime, not political dissent.

David Cole is a professor at Georgetown University Law Center and an attorney with the Center for Constitutional Rights.

 Copyright 2002 The New York Times Company