[Ppnews] How Top Secret America Misfires; A Call for a 21st Century Church Commission

Political Prisoner News ppnews at freedomarchives.org
Tue Jan 25 10:20:13 EST 2011

Original Content at 

January 23, 2011

How Top Secret America Misfires; A Call for a 21st Century Church Commission

By Coleen Rowley

Why has Congress not yet awoken to the fact that since 9-11 we have 
been sailing into a perfect storm? Here are just some of the 
turbulent winds blowing and pushing officials in the wrong direction:

Politicians who stoke the fear of terrorism while forcing underling 
officials to promise they can protect the public by "pre-empting" all 
threats, hyped and unhyped;
The erosion of the prior legal safeguards, even the firmly entrenched 
ethical and legal (jus cogens) principles prohibiting torture;

The broad legal authority given to the executive by Congress in such 
laws as the Patriot Act and Military Commissions Act, and also the 
abuse of "presidential war powers" through warrantless monitoring and 
authorization of offshore, indefinite detention;
Perverse, counterproductive job and profit incentives for the 854,000 
agents, analysts, operatives and private contractors/consultants who 
staff the "Top Secret America" surveillance-security complex;

Lack of any effective, independent oversight (despite the 9-11 
Commission's prescient and serious concerns enumerated years ago), as 
exemplified by the hobbled Privacy and Civil Liberties Oversight Board;

And the basic need for war presidencies to maintain momentum in the 
face of popular disapproval of the ongoing conflicts and occupations 
in the Mideast.

Such systemic forces will always produce a similar bad result -- for 
our rights and our safety.

Even the rather conservative Washington Post is quite worried about 
what's likely to come of this clearly out-of-control pressure cooker 
called "Top Secret America." If it cannot be quickly reined in, we 
are almost certain to witness and suffer the worst of Cold War 
McCarthyism and Vietnam COINTELPRO abuses. That prediction is based 
on what has happened before when militarist forces turned inward on 
U.S. citizens. Even if government officials are well-intentioned, 
these forces increase the chances for error and opportunism. Some 
would say we've entered a perfect storm already, given the numerous 
examples of improper targeting of domestic advocacy groups, most 
recently the 
raids on various anti-war activists' offices and homes in Minneapolis 
and Chicago.

Let's not forget how the "war on terror" was originally sold to the 
American public: as "Let's fight them over there so we don't have to 
fight them here." But Homeland Security now admits the "war on 
terror" is increasingly being fought at home.

FBI agents are motivated, for instance, to check off "statistical 
achievements" by sending well-paid, 
confidential informants into mosques and apparently also into various 
advocacy and anti-war groups. In the Iowa heartland, for instance, 
FBI surveillance, trash searches, terrorism database paperwork, and 
"statistical accomplishments" regarding a few student protesters in 
Iowa City before the 2008 Republican National Convention fill 
hundreds of file pages without providing any plausible justification 
for the operation.

These abuses attack our basic constitutional right to dissent without 
making us safer. Relatively simple ways to address and reduce each of 
these counterproductive forces do exist, however -- ways that 
preserve our liberties while actually enhancing our collective 
security. The list below outlines the most serious current civil 
liberties problems and the potential fixes. It is based on my years 
teaching constitutional criminal procedure to FBI agents and police 
officers, and also on my firsthand exposure to and understanding of 
some of the pre- and post-9-11 failures:

1) In the course of arguing the 
<http://www.supremecourt.gov/opinions/09pdf/08-1498.pdf>Holder v 
Humanitarian Law Project case in the Supreme Court (decided in late 
June of this year), Georgetown Law Professor David Cole warned 
explicitly that this law could be used to improperly target and 
prosecute a wide range of humanitarian, human rights and peace 
advocacy groups, and prevent them from exercising freedom of speech 
and other First Amendment rights. However, Cole failed in his 
arguments to overturn a few words in the Patriot Act that broadened 
"Material Support of Terrorism" to encompass "expert advice and 
assistance" to designated "foreign terrorist organizations." (For 
more information, see 
<http://www.truth-out.org/criminalizing-peacemaking61229>"How Easy Is 
It for Peaceful People to Violate the Patriot Act?") The problematic 
Supreme Court decision, which essentially makes advocacy of peace and 
humanitarian issues illegal with respect to 40-some groups designated 
by the State Department, is surely something that Congress never 
intended in hastily passing the hundreds of pages of Patriot Act 
revisions in October 2001. As a result, missionaries, fair election 
proponents and humanitarian workers could be placed in legal 
jeopardy. People like Three Cups of Tea author Greg Mortenson, who 
had to meet with a variety of foreign nationals in war zones in order 
to forge a consensus to build schools for girls in Pakistan and 
Afghanistan, could be in trouble, as could former president Jimmy 
Carter, who engages in pro-democracy efforts to monitor election 
fraud in many places in the world. The paradox is that true 
non-government-affiliated efforts aimed at furthering education, 
humanitarian assistance, free elections and non-violent conflict 
resolution in other parts of the world are widely recognized as more 
effective and beneficial than U.S. military or U.S. State 
Department-controlled efforts.

The simple fix would be to revise the phrase "expert advice and 
assistance" in the Patriot Act, clarifying that Congress never 
intended to define "material aid or comfort" to designated 
organizations so that it would chill or hamper the free speech rights 
of members of non-governmental humanitarian, peace and pro-democracy groups.

2) "Pre-emptive" security -- with its false promise of preventing all 
future acts of terrorism, and its accompanying pressures -- should be 
understood as a real Mission Impossible (not to say Mission Stupid). 
It led to the immediate erosion of the post-Church Committee Attorney 
General (AG) Guidelines that required varying levels of factual 
justification before targeting any domestic group. Shortly after 
9-11, AG Ashcroft began by loosening the old guidelines and allowing 
FBI agents to go into churches, mosques and other public places. The 
final nail in the coffin was the decision by the Bush Administration, 
in one of its last official acts, to reverse the need to demonstrate 
some level of factual justification and promulgate a new and very low 
legal standard for all types of cases. This new standard means, in 
effect, that the FBI has only to deny that a group has been targeted 
based solely on its exercise of First Amendment rights. Civil 
libertarians were initially aghast at the prospect of this total 
erasure of any real investigative guidelines. But knowing of Obama's 
background as a constitutional lawyer, they thought it better to 
bring the issue to Bush's successor. It should be noted that the 
demise of the old AG Guidelines came after the Inspector General (IG) 
discovered that the FBI had served hundreds of thousands of 
mistake-ridden and unjustified National Security Letters, and also 
found many compliance problems in the FBI's opening of cases and 
handling of informants.

Simple fix: It's fine to create one set of guidelines for all crime 
programs. However, some reasonable level of factual justification 
should be required before the FBI or other federal law enforcement 
agency can target a group or individual. The Department of Justice 
(DOJ) IG should immediately undertake a review of all "terrorism 
enterprise investigations" begun by the FBI after 2006, when the IG's 
prior investigation ended.

3) The blurring of protest activities and dissent with terrorism 
dovetailed with the launching of U.S. wars after 9-11. For example, 
in October 2003, the FBI put out "Intelligence Bulletin 89," which 
focused on protesters' plans for the Free Trade Area of the Americas 
meetings in Miami and anti-war marches in Washington, D.C. I 
personally made an IG complaint to the DOJ IG about this blurring, 
but it was punted back to the FBI and then swept under the rug. New 
York Times reporter Eric 
exposed the problematic Bulletin but the DOJ retaliated by yanking 
Lichtblau's press pass, and the FBI ordered its 56 field divisions to 
cease contact with the reporter. (The sorry episode is described 
beginning on page 122 of Lichtblau's book, 
Law: The Remaking of American Justice.) Perhaps if that overly 
defensive posture had not been taken, problems would not have reached 
the proportions later found in the September 2010 report, 
"<http://www.justice.gov/oig/special/s1009r.pdf>A Review of the FBI's 
Investigations of Certain Domestic Advocacy Groups." The wrongheaded 
mindset that dominated law enforcement almost immediately after the 
launching of the Iraq War (and the larger "war on terror") is most 
clearly seen in what a spokesman for the California Anti-Terrorism 
Information Center (CATIC) said when forced in 2003 to defend his 
agency's unjustified targeting of anti-war protesters without any 
factual evidence. CATIC Spokesman Van Winkle, apparently without 
thinking too hard, reasoned that evidence wasn't needed to issue 
warnings on war protesters: "You can make an easy kind of a link 
that, if you have a protest group protesting a war where the cause 
that's being fought against is international terrorism, you might 
have terrorism at that [protest]. You can almost argue that a protest 
against [the "war on terror"] is a terrorist act." In a similar vein, 
the Department of Defense (DOD) for years administered an annual 
mandatory anti-terrorism test that 
protest with terrorism. The test asked, "What is an example of 
low-level terrorism activity?" The correct answer was "protest."

Similarly, listen to the compelling testimony of anti-drilling 
activist Virginia Cody after she discovered she had been spied on by 
the Pennsylvania Department of Homeland Security by authorities who 
actively worked with industry officials to quash dissent.

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