What We Must Ask About Surveillance State Failures

Understanding the depths of the FBI’s intelligence powers, as well as how the FBI deploys them. This week's guest post from Chip Gibbons.

What We Must Ask About Surveillance State Failures
Image from the government website of the Federal Bureau of Investigation (FBI) and in the public domain

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Americans have repeatedly been told to keep the United States safe they must surrender their core civil liberties to a vast national security apparatus. Yet when this apparatus fails at this supposed objective, the response is to further expand its surveillance powers.

Rarely is the exercise of these powers seriously explored. Instead, the national discussion centers on a baseless notion that a shortage of surveillance powers is the root cause of intelligence failures.

Before 9/11: The FBI's Counter-Terrorism Program and the Surveillance of Dissent

Last week, in a post for The Dissenter’s paid subscribers, I discussed FBI counterterrorism files I obtained from a still ongoing lawsuit against the FBI. The lawsuit is the outgrowth of Freedom of Information Act (FOIA) requests I filed while researching my forthcoming book.

The files concern the FBI’s response to protests at the 1999 World Trade Organization meeting, the 2001 Summit of the Americas, and World Bank and International Monetary Fund meetings between 1998 to 2006.

While they don’t touch the FBI’s pre-9/11 intelligence failures, by revealing the FBI’s pre-9/11 counter-terrorism priorities they illuminate that subject. They show that during the three years before 9/11, continuing right up to the attacks, the FBI engaged in sweeping and intrusive intelligence gathering against organizers and potential protesters of international financial ministerial conferences.

This was justified explicitly under the guise of counter-terrorism,  and the documents likely represent the tip of the iceberg.

Many readers are familiar with the debates about how post-9/11 counter-terrorism policies facilitated the surveillance of dissent.  But throughout the 1980s and 1990s, civil libertarians repeatedly documented how the threat of terrorism was used to monitor First Amendment-protected speech.

The early years of President Ronald Reagan were rife with accusations in publications like The Nation, Public Eye, and Covert Action Quarterly that McCarthyism had returned in the form of anti-terror policy.

In addition to spying on anti-globalization protesters in the early 2000s, we know that in the 1990s the FBI relentlessly pursued animal rights and environmental activists, as well as supporters of Palestinian rights.

None of these actions, of course, directly implicate the FBI’s failures in the run-up to September 11, 2001. But they help us understand the depths of the FBI’s intelligence powers, as well as how the FBI deploys them.

Fascinatingly, the Department of Justice’s Office of Inspector (DOJ OIG) report on the FBI’s post-9/11 transition did include this recommendation:

...consider transferring responsibility for investigating crimes committed by environmental, animal rights, and other domestic radical groups or individuals from the Counter-Terrorism Division to the Criminal Investigative Division, except where a domestic group or individual uses or seeks to use explosives or weapons of mass destruction to cause mass casualties.

This recommendation was, of course, not heeded. In just a few years time, the DOJ OIG would be tasked with looking into the FBI’s post 9/11 monitoring of domestic advocacy groups, including the Catholic Workers, Greenpeace, and People for the Ethical Treatment of Animals (PETA).  

Hunting the Specter of Antifa in Run Up to the January 6

The oversight response to the January 6, 2021, breach of the U.S. Capitol by President Donald Trump's  supporters hoping to install the loser of the 2020 election as President saw similar shortcomings. (I will leave it to readers to decide for themselves if they feel like the events constituted a riot, insurrection, or attempted coup.)

The failures on January 6 are particularly stunning. Anyone who has been to an anti-war or other protest at the Capitol can tell how heavily guarded the Capitol is. Anti-war protesters are arrested for merely being on the Capitol steps. There is no scenario in which people at an Act Now to Stop War and End Racism (ANSWER) march would have been allowed to breach the Capitol and send members of Congress into hiding.

On top of that, much of the planning for January 6 was done in plain sight. Anyone vaguely paying attention to the news had some inkling of what was afoot. It makes the police response all the more perplexing.

The January 6 events occurred at a time when the FBI was operating on the loosest restrictions since the reforms of the 1970s. They also came at a time when there was a renewed focus on “domestic terrorism” stemming from Trump and Attorney General Bill Barr’s desire to stamp out the George Floyd protests.

While I think it is antithetical to democracy to treat protests, even those with property damage or vandalism, as “terrorism,” the FBI houses authority for policing “civil unrest” and violations of federal anti-riot laws in its counter-terrorism division.

Since counter-terrorism increasingly involves "preventive" intelligence gathering, as opposed to traditional law enforcement tactics, in the run-up to events that are likely to generate protests, the FBI draws up threat assessments that often contain information on protest organizers.

Trump and Barr were absolutely interested in deploying the counter-terrorism structure against those protesting the murder of George Floyd by Minneapolis police. Barr publicly toyed with the idea of prosecuting George Floyd protesters for seditious conspiracy. He brough record numbers of federal charges against protesters.

Barr also set up a task force on “anti-government extremists,” an FBI term of art that includes anarchists, Puerto Rican nationalists, sovereign citizens, and rightwing militias. The task force was an explicit response to the George Floyd protests.

Democratic presidential candidate Joe Biden weighed in from the campaign trail. Instead of condemning the ludicrous and dangerous pronouncements coming from the current administration, he pledged to prosecute anarchists.

The FBI has never taken its sights off of racial justice protesters or those it perceives to be anarchists (The FBI defines anarchists extremists as being opposed to capitalism, corporate globalization, and political, economic, and social hierarchies based on class, religion, race, gender, which captures a broad range of leftwing beliefs).  

FBI Director Christopher Wray told Congress that it was opening up domestic terrorism investigations into anarchist extremists, including those inspired by antifa ideology. Across the country, individuals who attended the George Floyd protest reported being questioned by FBI agents about “Antifa.”

To be clear, I do not believe that protests, civil unrest, or even violations of anti-riot laws should be treated as domestic terrorism. The scope and authority of the FBI’s counter-terrorism program should be severely curtailed, if not outright shutted. I deplore reactionary and racist violence, but I do not believe policing of right-wing speech, when there is no evidence of violence, will solve the problem.

Monitoring ideologies has repeatedly failed as a means of violence prevention. But it is impossible to look at the FBI’s sweeping authorities and the brazenness of the January 6 plotters and believe the FBI lacked sufficient authority to know what was coming.

A Missed Opportunity for Oversight

As a critic of the FBI’s counterterrorism program, I was asked, off the record, by a staff member of the January 6 Committee why the FBI had so spectacularly failed. I stressed the above points about the FBI’s skewed priorities. I also contended that the committee must consider it within its scope to look at how the FBI actually used its counterterrorism authorities. Such a move would not be difficult.

The FBI has an incredibly detailed internal system for designating case files. Every case file begins with a series of numbers and letters that indicates the type of investigation. A case file starting with “100K” indicates an investigation into a “Terrorist Enterprise Investigation-Domestic Terrorism-Black Separatist Extremists.”

A case file with a 266H prefix signifies the file is an investigation of “Act of Terror-Domestic Terrorism-Anarchist Extremist.” Using these prefixes, Congress could easily get a broad picture of the FBI’s priorities.

The January 6 Committee, of course, did not pursue this line of investigation. The closest Congress has come to demanding this information has been in reporting requirements included in the Domestic Terrorism Prevention Act. Unfortunately, this bill codifies the existing domestic terrorism bureaucracy, giving Congress's blessing to a structure that has promoted abuses of civil liberties while failing to prevent violence.  

While FOIA requests and other public revelations can give a partial picture of how the FBI’s surveillance powers are used, they are a poor substitute for the type of comprehensive picture an oversight body with subpoena power and access to classified information could offer.

The FBI and defenders of the national security state always attempt to cynically justify their own failures to argue for an expansion of their own power. Instead of allowing them to repeat this tired script, with the same-old predictable results, those overseeing it should flip it on its head.

After all, a vast surveillance apparatus that gathers information on political speech while failing to focus on actual violence has too much power.