Out of the Frying Pan and Into the Fire: Why the FBI Needs New Leadership

The last ten years have witnessed an assault on the constitutional rights of law-abiding Americans, led largely by the FBI. Appointed mere days before the 9/11 attacks, Director Robert S. Mueller III has guided the bureau through the resurrection of many long discredited practices from its COINTELPRO era. Yet, the Obama administration has proposed extending Mueller's term as FBI director. Congress should reject the proposal and insist on a nominee from outside the bureau to restore accountability, law and order. Just ask Nick Merrill in New York, Joe Iosbaker in Chicago or Ahmadullah Niazi in Los Angeles: three law-abiding Americans whose constitutional rights are among the casualties of the last decade.

The last time Congress extended the term of FBI director was in 1972, to keep J. Edgar Hoover in office. Years later, when the Church and Pike committees finally exposed the notorious counterintelligence program (aka COINTELPRO), Congress discovered that Hoover presided over severe abuses for decades.

During the era of Hoover and COINTELPRO, the FBI's most famous target was Dr. Martin Luther King Jr., who the bureau targeted with a smear campaign aiming to split up his marriage and drive him to suicide. The National Association for the Advancement of Colored People was accused – without evidence – of subverting the state, as were activists promoting Puerto Rican independence, an end to the war in Vietnam, women's rights and civil rights for racial minorities including Native Americans and African-Americans. According to the US Senate:

Many of the techniques used would be intolerable in a democratic society even if all of the targets had been involved in violent activity, but COINTELPRO went far beyond that … the bureau conducted a sophisticated vigilante operation aimed squarely at preventing the exercise of First Amendment rights of speech and association.

Repeating errors from Hoover's discredited era hardly offers hope to restore law and order to the FBI. Given the bureau's history as a recidivist agency notorious for recurring abuses of civil rights, why has the president proposed to extend the director's term for the first time in nearly 40 years?

According to The Washington Post, the administration simply failed to get its act together in time: “The president's request that Congress tinker with the 10-year term limit sets a bad precedent…. It may be the path of less resistance to retain an FBI director…. But staffing an administration on schedule is part of the president's job.” Sen. Chuck Grassley (R-Iowa) agreed that the proposed extension would be “a risky precedent to set. Thirty-five years ago, Congress limited the FBI director's term to one 10-year appointment as an important safeguard against improper political influence and abuses of the past.”

The Post is correct that the proposed extension threatens the “integrity of the bureau,” and Grassley is right that the precedent is dangerous – although both ignored the bureau's mounting failures and abuses. The president's proposal appears only worse when placed in the context of Mueller's tenure.

Don't take my word for it. According to my colleagues at the American Civil Liberties Union, “the FBI's significant misuse of its authorities under the USA PATRIOT Act and the Foreign Intelligence Surveillance Act, the infiltration of mosques, the abuse of the material witness statute, the FBI surveillance of peaceful groups with no evidence of criminal wrongdoing and the mishandling of the FBI watch list have raised significant civil liberties concerns” during Mueller's tenure. Similarly, a coalition of 46 civil rights organizations wrote to Congress last year, arguing that:

In considering the potential necessity of legislation to protect civil rights and civil liberties, Congress should not grant [FBI policies] artificial legitimacy, nor should the bureau be afforded credibility that it has not only failed to earn, but actively undermined…. [T]he Chairman of the House Judiciary Committee called for the FBI's General Counsel to be replaced…. As a repeat offender, the bureau is long overdue for intervention by Congress.

When the Senate Judiciary Committee questioned the FBI director about the bureau's surveillance activities, Mueller essentially lied to Congress, covering his tracks with a private letter to some senators admitting abject lawlessness and disclaiming any meaningful limits on the bureau's authority. These violations are offensive in themselves; failing to accurately answer crucial Congressional questions in order to evade accountability is even worse.

Each of these problems, alone, is enough to demand change, rather than continuity, at the FBI. Taken together, they indicate a mounting constitutional crisis screaming out for the “change we can believe in” that the president promised three years ago.

Let's start with the PATRIOT Act. Among other things, PATRIOT expanded National Security Letters (NSLs): administrative subpoenas immune from review, checks, or balances, demanding private records (often from third parties) while gagging the recipients and preventing disclosure to the public, press or Congress.

Beyond violating the privacy and Fourth Amendment rights of their targets, NSLs also violate the rights of recipients, such as Merrill, an Internet service provider in New York City silenced by the threat of prosecution for simply raising his voice about a letter he received demanding a customer's private information.

The Justice Department's internal watchdog has repeatedly examined the FBI's use of NSLs. Every time, the inspector general documented pervasive, systemic – and even ongoing and expanding – violations by the bureau. The PATRIOT Act dramatically expanded the FBI's powers, but under Mueller's leadership, the bureau exceeded even those, repeatedly breaking the few remaining limits guarding the constitutional rights of law-abiding Americans.

And that's just the beginning. Perhaps to justify its expanding budget in a time of fiscal crisis, the FBI has generated numerous fake “terrorist plots.” The Bureau's modus operandi has been to recruit ex-convicts, give them huge sums of cash to bribe con men and then train and equip those targets for months (or even years) to commit fake attacks before making dramatic arrests amid sycophantic media fanfare.

In Newburgh, a depressed post-industrial town in upstate New York, the bureau offered tens of thousands of dollars each to four mentally unstable con men (including a schizophrenic and a heroin addict), whose worst real offense appears to be fraud, rather than the bomb plot of which they were ultimately convicted. Sending paid government informants to initiate violent plots presumes the guilt of entire communities on the basis of association and multiplies that offense by profiling according to race, religion or ideology.

Even beyond civil liberties, the strategy is an abject national security failure: profiling overlooks potential threats outside the profile, alienates affected communities, undermines opportunities to gain human intelligence and even encourages the violent extremism that the bureau claims to prevent. Even worse, the strategy does nothing to address real sources of potential terrorism.

In drug investigations, law enforcement agents routinely target producers or distributors – rather than consumers – because prosecuting consumers does nothing to actually reduce the supply of drugs. But under Mueller, the FBI's counterterrorism efforts have ignored producers (those who propose real plots) and distributors (who recruit others to execute them) to settle for prosecuting consumers of terrorism – and fake ones, at that.

It gets worse. Emboldened by a Supreme Court decision last spring, the FBI began a political witch hunt last fall targeting dozens of peace and labor activists in Chicago and Minneapolis. The raids and secret grand jury investigations not only offend the First Amendment, but also reflect the kind of abuse for which the bureau grew infamous under the leadership of J. Edgar Hoover.

Finally, the bureau has enmeshed itself in the business of immigration enforcement, by supplying to Immigration and Customs Enforcement pre-conviction arrest data from local police departments around the country – even over the objections of local governing bodies. By supporting the Secure Communities program, the FBI is playing a key role going forward in undermining public safety and enabling a continuing “humanitarian crisis” in immigrant communities.

Like the now-infamous J. Edgar Hoover, Mueller has received widespread praise during his tenure for the bureau's supposedly effective work under his leadership. It took a two-year Congressional investigation and tens of thousands of pages of records and testimony for the FBI's dramatic abuses under Hoover to finally come to light. Mueller is no different; he has received praise from the administration and the Hill only because the FBI cloaks itself in secrecy, and the many communities raising their voices have been silenced by a mainstream press that has uncritically accepted the official narrative.

Rather than extend Mueller's term, Congress should insist on a nominee from outside the bureau and heed the calls of former agents who have recommended “[a] wide-ranging Congressional investigation of the sort conducted by the Church Committee,” to uncover further abuses that remain secret. If Congress wants to pass legislation involving the FBI, rather than extend Mueller's term, it should impose a legislative charter to restore law to a lawless domestic intelligence agency that has, yet again, run amok.