Saturday, November 29, 2014

Domestic spying

Eric Lichtblau and William Arkin recently reported on the current version of the kind of infiltration that the FBI's COINTELPRO and local "Red Squads" did back in the day, More Federal Agencies Are Using Undercover Operations New York Times 11/15/2014.

This part of the report caught my attention: "Within the Treasury Department, undercover agents at the I.R.S., for example, appear to have far more latitude than do those at many other agencies. I.R.S. rules say that, with prior approval, 'an undercover employee or cooperating private individual may pose as an attorney, physician, clergyman or member of the news media.'"

Awesome. I guess it could help to alleviate the shortage of priests! And apparently even the IRS is into the "alternative medicine" racket now!

Marcy Wheeler and her colleagues at Emptywheel have been keeping track of a string of federal terrorism prosecutions in which it appears that the feds are creating their own terrorist plots, enticing people to participate in the them, mostly young Muslim men, and then busting their own terror plot. For the law-enforcement agencies involved, this has the salutary purpose of showing how they are keeping us all safe. It also reminds us that we're surrounded by deadly plots by the Evil Ones. Lichtblau and Arkin report:

In terrorism cases — the area in which the F.B.I. has used undercover stings most aggressively — prosecutors have a perfect record in defeating claims of entrapment. “I challenge you to find one of those cases in which the defendant has been acquitted asserting that defense,” Robert S. Mueller III, a former F.B.I. director, said at an appearance this year.

The Times analysis showed that the military and its investigative agencies have almost as many undercover agents working inside the United States as does the F.B.I. While most of them are involved in internal policing of service members and defense contractors, a growing number are focused, in part, on the general public as part of joint federal task forces that combine military, intelligence and law enforcement specialists.
Whether that "perfect record" results from careful procedures or from the courts' unwillingness to defy the feds on terrorism cases, I don't know.

One case that Marcy has followed I find particularly disturbing, which she describes in Imagine How Future Parents Will Respond to Concerns about Their Son’s Radicalization Emptywheel 11/29/2013. In this case, a concerned parent asked the FBI to help their son, who they feared was being attracted to illegal activities by radical Islamists. Instead, the FBI set him up to be busted:

Barre [the father] did exactly what the FBI would hope a father would do: alert the FBI. But rather than helping the father prevent his son from being sucked in, instead the FBI (it claims) used the father’s call as the predicate to suck [his son] Mohamud further in, even while they admitted repeatedly he was floundering.

Set aside Mohamud’s guilt or innocence. The message the FBI has sent with its treatment of Mohamud is if family members alert law enforcement to concerns about radicalization, the FBI will then use it as an excuse to entrap their family member.

Just about the least productive thing to do if you want to capture actual threats. [emphasis in original]
This is a good example of how giving law-enforcement agencies wide latitude to run such operations, even if they stay within the letter of the law (which one can certainly question in this case) can still lead them to do stupid, counter-productive things. It certainly seems to me that an outcome like this does more harm to legitimate law-enforcement concerns that help.

Unless such operations are regulated and managed very carefully and responsibly, they lead to all sorts of abuses, legal and otherwise.

I think it's always worth asking when we hear about these cases why the super-duper massive electronic domestic surveillance operations can't be relied upon instead. Of course, that would blow the fiction that the NSA's domestic surveillance is focused only on foreign threats if the government claimed it could pick up all such plots with its high-tech surveillance instead of more conventional law-enforcement operations.

Respectability requires me to say somewhere in a post like this that of course we all respect the law enforcement officers who take risks for us everyday. etc., etc. Even when we're talking about what looks an awful lot like, say, a white cop like Darren Wilson killing unarmed Michael Brown with a barrage of gunshots for no good reason and a police department and prosecutor more interested in exonerating the killer cop than enforcing the law.

We've seen with the NSA spying program that Congressional oversight has been a bad joke, for the most part. Ultimately, if the voters don't demand accountability, if the Congress rejects its duty to exercise oversight, if the courts refused to uphold the law and the Consitution, and the Executive is willing to ignore the law and hide its most questionable activities behind official secrecy, this kind of operations will not be adequately regulated.

That's why right now whistleblowers like Edward Snowden play such an indispensable role in resisting abusive operations.

I'll also say here without sarcasm that undercover operations are standard law-enforcement tools, I assume in all countries. But they should be subject to the rule of law and to the exercise of good judgment on the part of law-enforcement officials.

I wouldn't venture to say that the local Red Squads of earlier years did more damage to the rule of law and individual rights than the nationally-run programs did. But some of them did run wild.

The historic record of such operations in the United States is what makes me so suspicious of the remarkably well-timed announcement of the bust of an alleged terrorist plot targeting St. Louis County Robert McCullough, the Democratic prosecutor who conducted one of the most remarkable grand juries anyone remembers, with the prosecutors' efforts directed toward defending the person the grand jury was asked to consider indicting, i.e., the killer cop Darrel Wilson. (Christine Byers, Alleged plot included bombing Arch, killing St. Louis County prosecutor, Ferguson chief St. Louis Post-Dispatch 1/27/2014)

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