Tracked By Spies and Informers

Tracked by Spies and Informers

By Julia A. Shearson

The February 26, 2009 revelation in the Los Angeles Times that FBI domestic intelligence informant and ex-convict Craig Monteilh and others were paid handsomely to spy on Muslim Americans in their houses of worship in Southern California should come as no surprise. Such domestic intelligence gathering has a history in the United States.

The annals of modern domestic surveillance in America are contained in the massive 1976 Church Committee Reports of the U.S. Senate Select Committee on Intelligence. The reports, drafted by the Senate in the wake of the Watergate scandal, should have ended domestic intelligence abuses, but in the post-9/11 climate, their warnings and descriptions of crimes against liberty go unheeded.

The chapter entitled “The Use of Informants in FBI Domestic Intelligence Investigations” begins: “Men may be without restraints upon their liberty; they may pass to and fro at pleasure: but if their steps are tracked by spies and informers, their words noted down for crimination, their associates watched as conspirators—who shall say that they are free?”

This quote was borrowed from Sir Thomas May, the nineteenth-century author of The Constitutional History of England. May railed against the use of such spying practices by “continental despotisms” and claimed that “the freedom of a country may be measured by its immunity from this baleful agency.”

The Church reports, available on the Internet, are worth reading today in light of the FBI’s consolidation of domestic intelligence powers in the waning days of the Bush administration. Indeed, the December 1, 2008, issuance of the new investigative guidelines by Attorney General Mukasey was a major step in reconstituting the FBI as the United States’ premier domestic intelligence agency with the Department of Homeland Security and the Joint Terrorism Task Forces as their force multipliers on the ground.

We may be safer now because of this, but at what price for liberty? The new post-9/11 domestic intelligence regime, coupled with immense power, information technology, lack of congressional curiosity and lax Department of Justice oversight, has put our Bill of Rights in peril.

In short, the FBI has been sent headlong into what former vice president Cheney calls the “tough, mean, dirty, nasty business” of keeping the country safe from terrorists. But the problem is the FBI cannot serve two masters: it cannot both serve the Constitution and get into the domestic intelligence trenches. History proves this.

Take just one investigative tool at the FBI’s disposal, the domestic intelligence informant. The Church reports note that “the paid and directed informant is the most extensively used technique in domestic intelligence investigations” and that once the criteria for opening an intelligence case were met, informants could be “used without any restrictions.” In fact, in the 1960s and 1970s, the funding allocated for the intelligence informant program was twice that allocated for organized crime informants. At the height of the Civil Rights Era spying regimen, there were more than 7,400 informants in the Ghetto Informant Program alone. Even agents in the FBI were wary of that controversial program.

There was “no requirement that the decisions of the FBI to use informants be reviewed by anyone outside the Bureau.” This meant that the use of intelligence informants was not “subject to the standards which govern use of other intrusive techniques such as wiretapping and other forms of electronic surveillance.” Moreover the Church reports make clear that there was, and still is, a lack of judicial treatment of the constitutional issues surrounding intelligence informants because as the reports note, “Members of a group will seldom learn that an FBI intelligence informant has been in their midst or has copied their records for the FBI because intelligence investigations almost invariably do not result in prosecutions.”

The newly minted investigative guidelines rushed into place by then attorney general Mukasey on December 1, 2008, cement the FBI’s role as a de facto domestic intelligence agency. Mukasey claimed that the Department of Justice was merely streamlining the investigative playbook so that rules for criminal and national security investigations were more uniform. Yet, according to the Center for Democracy and Technology, the new guidelines “authorize the use of intrusive investigative techniques to collect information in the absence of particularized evidence of a crime or risk to national security.” This is a radical shift in FBI policy.

In fact, under the guise of streamlining its investigative powers, the FBI widened its use of “threat assessments” and “preliminary investigations” and increased the intrusiveness of the techniques available for such practices while it simultaneously eliminated the requirements of reporting such initial investigations to FBI headquarters. Moreover, the new guidelines increase from 10 to 30 days the time period during which a “full investigation” with the most intrusive of techniques can go forward without being reported by the field offices to the headquarters.

So, are other intelligence assets such as Craig Monteilh out there now spying on law-abiding Americans? Probably. Under the 1960s and 1970s domestic intelligence programs for spying on “subversives” and “extremists,” many people got swept up into the intelligence “vacuum cleaner”: college professors, union activists, ministers, women’s rights advocates, students, and so on. Does the Constitution permit the government to spy on American dissenters while it scouts for those who are planning actual violence?

How do we protect the country and its citizens without suppressing the right to dissent, the right to speak freely, and the rights to associate and to assemble? Do Americans really want the FBI back in the domestic intelligence business? Is the FBI’s new domestic intelligence apparatus a necessary post-9/11 evil? It is difficult to know, because it is unclear how the FBI’s new powers are being used. What is clear is that the powers are being used against the average Joe Muslim who keeps getting caught up in the “war on terror.”

Those with knee-jerk suspicion of everything Muslim seem to forget that the rights being compromised in the war on terror are their selfsame rights. Don’t the average Joe and the average Joe Muslim deserve to be free from being tracked by spies and informers?

Most Americans likely want to be free of prowling informants and provocateurs such as Monteilh. In fact, the average American, born with liberty in his gut, has never much liked a government that snoops. Although we want our government to investigate crime and to prevent terrorism, we expect those investigations to stay within constitutional limits.

As Patrick Henry said, “The Constitution is not an instrument for the government to restrain the people, it is an instrument for the people to restrain the government—lest it come to dominate our lives and interests” and as George Washington said, “Government is not reason; it is not eloquent; it is force. Like fire, it is a dangerous servant and a fearful master.” It is not certain whether Washington or Henry would approve of the FBI’s renewed domestic intelligence powers, but it is certain they would want the Congress and the new attorney general to monitor the FBI through strict oversight.

If a well-informed consenting citizenry deems domestic intelligence gathering to be a necessary evil, it should be a closely watched evil, lest the well-intentioned but immensely powerful FBI begin repeating its shameful use of intelligence informants as “vacuum cleaners” of information with no limits on what they would report about a subject and his associates.

Julia A. Shearson is executive director of the Cleveland Chapter of the Council on American-Islamic Relations.

4 thoughts on “Tracked By Spies and Informers

  1. As Salaam u Alaikum,

    Thank you for sharing this well-written article. However, I would like to ask Sister Shearson, and you as well Brother Dawud, about the role of CAIR in this process of the the FBI and other law enforcement agencies infiltrating into the community. This is not to blame you or her personally, but to ask whether CAIR, or any of the folks within CAIR, are willing to step up and admit or confront the fact that CAIR organized these “community relations” events for these agencies to come, visit, speak, and build relationships with Muslims. And it is these same relationships, which started with occasional calls and checking up, and would slowly evolve into “handler-informant” relationships. Similarly ISNA (and CAIR, but moreso ISNA) invited FBI to their national conventions and events to set up table and recruit Muslims. MPAC very openly and explicitly calls for working with enforcement agencies. Of course, some informants were recruited from jails, or potential jail time, in exchange for disappearing their charges. But all in all, our Muslim organizations not only invited enforcement agencies into the community, but also created an atmosphere of false safety for Muslims to interact with the agencies. All this despite knowing the history of their tactics (maybe immigrant Muslims leaders may be excused on count of ignorance), but also in spite of ongoing indications that such tactics were taking place as early as 2003.

    I think the parallel with COINTELPRO is quite remarkable, with two exceptions. First, the FBI had to work hard to recruit people in the 60 and 70s, whereas our Muslim organizations openly invited and dined the FBI into our communities to do as they please. Secondly, on their part, COINTELPRO had to remain covert till information was leaked by some brave souls, whereas in this case, mainstream media has been reporting on these tactics and they have been perfectly acceptable and validated by larger society. (Technically there is a third difference of COINTELPRO actually targeting real movements, whereas this round has mainly targeted young men, the gullible, and hotheads in the community who would otherwise have done nothing)

    Your thoughts would be appreciated.

  2. The FBI would have sent in spies and agent provocateurs irrespective of the town hall meetings. Such antics have taken place from the COINTELPRO days to post-COINTELPRO days prior to CAIR’s existence.

    So I don’t agree that our prior contact with them opened up the door to what has just taken place in California. Remember, the guy that was sent in was not an FBI agent, but an agent provocateur faking to be a Muslim.

  3. Salaam,

    Indeed, enforcement agencies would have tried regardless, but at least they would not have been handed open access to the community on an open platter.

    The issue in not about just this one particular informant (Monteilh). You are right in that Monteilh was not an FBI agent, as most of the informants in other instances have not been FBI agents. But they have been community members who were first befriended, and then recruited by enforcement agencies over a period of time. It is for this fact, that both the open arms and the positive publicity given to enforcement agencies allowed them to make inroads with either unsuspecting (but eager to help) community members or with opportunistic folks.

    Rather than warn community members to be aware of both being recruited, and entrapped, by such COINTELPRO tactics, they were lulled into a false sense of security to trust and talk to enforcement agencies.

    If you did a brief analysis of the informants that we know about through these kinds of cases, and also if you talk to your own community and jamaat members after some of these types of meetings, and ask them how they got into contact with enforcement agencies, most of them will tell you that it was through these very same “community outreach” efforts. This most certainly was the case in NYC and most of the East Coast, and I would guess is the same elsewhere.

    Do you really think that an average community member would trust and talk to an enforcement agent off the street or their place of business?

    The second point is also that fact that such “outreach” and trust building efforts continued even after repeated instances (throughout the country) of such tactics.

  4. I’m not sure about ISNA or MPAC, but we have always informed the community prior and after such interactions about knowing their rights including that they should talk with the FBI in the presence of an attorney when questioned.

    In Michigan for the record, we haven’t sponsored such forums in my 4 years with the organization. We’ve talked with them at the table with other groups, but never arranged for them to come into masajid.

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