Tracked by Spies and Informers

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 (and associated claims of attempted entrapment, as with Monteilh) 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, 19th 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 in light of the FBI's consolidation of domestic intelligence powers in the waning days of the Bush administration. 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, along with the Department of Homeland Security and the Joint Terrorism Task Forces.

This new post-9/11 domestic intelligence regime—coupled with unchecked power, information technology, lack of congressional curiosity, and lax Department of Justice oversight—has put the Bill of Rights in peril. The FBI 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 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 there were more than 7,400 informants in the Ghetto Informant Program alone.

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 that 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 new investigative guidelines rushed into place by then Attorney General Mukasey 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." 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 headquarters.

Are other "human intelligence" assets such as Craig Monteilh (aka Farouk Aziz) out there 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.

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 extensively the FBI's new surveillance powers are being used. What is clear is that they are being used against average Muslims.

Most Americans likely want to be free of informants and provocateurs such as Monteilh. In fact, the average American has never much liked a government that snoops. 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."