FBI: No Probable Cause Required For Surveillance

The bitter controversy over the building of a Muslim community center and mosque near the site of the terrorist attacks in New York on Sept. 11, 2001, is sparking new fears of government snooping on Islamic holy places –  which it now claims it can do without a warrant.

The American Civil Liberties Union (ACLU), the Asian Law Caucus (ALC), and the San Francisco Bay Guardian newspaper, are suing the Federal Bureau of Investigation (FBI) in San Francisco over the agency’s failure to respond to a five-month-old request for information on its investigation of Bay Area Muslim groups.

The groups are seeking details of any surveillance the FBI has carried out since 2005 on area mosques and Islamic centers, as well as information on the recruitment of Muslim school children into the agency’s Junior Agent Program.

Julia Harumi Mass, staff attorney with the ACLU of Northern California, told IPS, “The FBI should focus its resources on targets for whom it has specific facts that support a reasonable suspicion of criminal activity, rather than using undercover informants to spy on people in their houses of worship.”

She added, “The lawsuit we have brought is one seeking records, so that we – and the public – can evaluate the FBI’s policies and practices to make sure they enhance national security without undermining our civil liberties. We have not sued for any misconduct other than failing to provide governmental records as required by law.”

But, according to the FBI itself, the agency needs no suspicion of wrongdoing before it initiates surveillance.

In a July 28 letter addressed to Senate Judiciary Committee Democratic members Dick Durbin of Illinois and Chairman Patrick Leahy of Vermont –  following the testimony of FBI director Robert Mueller – the agency said that suspicion of wrongdoing was not necessary to launch an investigation against an individual or organization.

“No particular factual predication is required” for the initiation of a preliminary investigation, according to the FBI’s operational guidelines.

“This is intelligence-gathering run amok,” said Shahid Buttar, executive director of the Bill of Rights Defense Committee. “The FBI is saying it can initiate surveillance without a reason.”

“This is a dragnet way of uncovering information and a dramatic step backwards in the history of civil rights,” he charged.

“The FBI has made an admission that we’ve known all along: that the agency is allowed to surveil without any suspicion of criminality,” according to Nura Maznavi, counsel for the Program to Combat Racial and Religious Profiling at Muslim Advocates.

Muslim Advocates, the American Civil Liberties Union, and the Bill of Rights Defense Committee (BORDC) are among the organizations claiming that the FBI’s guidelines use race as a basis for determining whether to initiate surveillance, thereby unfairly targeting Muslims.

But Mueller told the Senate Judiciary committee that race and religion could not be used as sole criteria for initiating an investigation of a person or organization.

Maznavi and Buttar have accused the FBI of initiating investigations in Muslim homes and mosques that they characterized as “general fishing expeditions” that could lead to clues about other members of the community.

The FBI also visits people at their jobs, said Maznavi, adding that such surveillance impacts a person’s reputation at their place of employment.

The agency also frequently sends informants into mosques, alleged Maznavi, pointing to two high-profile cases in California and Florida. Such a practice makes congregants suspicious of one another and promotes fear within the community, she said.

The basis of the FBI’s contention is unclear. The Fourth Amendment to the U.S. Constitution, part of the Bill of Rights, guards against unreasonable searches and seizures. It specifically requires search and arrest warrants be judicially sanctioned and supported by probable cause.

The ACLU of Northern California made its initial request for records under the Freedom of Information Act (FOIA) in March, according to their complaint. The plaintiffs hope to persuade the court to force the FBI to process their FOIA request and release the records immediately.

The plaintiffs first sought out the FBI records after area Muslims contacted the ACLU and the Asian Law Caucus with concerns that the Bureau was scrutinizing their activities and attempting to recruit “informants and infiltrators,” according to the ALC. In a statement, the group said the FBI had failed to produce its records despite admitting in March that media attention on the investigation of Muslim groups entitled his clients to expedited processing of their FOIA request.

“The lawsuit is about transparency,” said Somnath Raj Chatterjee, a pro bono lawyer for the groups.

In 2009, it was revealed that the FBI used paid informants and agents provocateurs in U.S. mosques. The Muslim American community says this news sends a devastating message to community leaders and imams who have worked diligently to foster greater understanding between law enforcement and their communities.

Following the 9/11 attacks, the U.S. Department of Justice began rounding up Arabs and other Muslims and – mistakenly – anybody who looked “Middle Eastern,” including Sikhs from South Asia. In the months after the attacks, some 5,000 men were held in detention without charges, most without access to lawyers or family members. There were no prosecutions and no convictions of any of these people. Some, who were in the U.S. with expired visas or who had committed other immigration infractions, were deported.

(Inter Press Service)

Author: William Fisher

William Fisher writes for Inter Press Service.