Eye On Terror
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RAY SUAREZ: For more on today’s announcement we are joined by Laura Murphy, Director of the Washington office of the American Civil Liberties Union, and former FBI Agent Larry Langberg. He retired in 1999, after serving 30 years with the Bureau at the Los Angeles field office. He’s now president of an investigative consulting firm.
RAY SUAREZ: Well, you heard the president, Laura Murphy, the FBI needed to change and the Attorney General saying agents were hampered by the old rules. What’s wrong with the new ones?
LAURA MURPHY: Well, I have never seen a more misleading press conference than the one I saw today because it would give you the impression that the FBI cannot investigate terrorism relate activity unless there is blood on the floor, and that’s patently false.
There are a whole range of investigative tools available under the previous guidelines that the FBI can use. They can open preliminary investigations for 90 days. And they don’t have to have probable cause of crime being committed. There is a reasonableness standard involved in opening a preliminary investigation.
So there are a panoply of tools they can use opening the investigations, informants, data mining, photographic surveillance, they can’t use wiretaps, but they can collect a tremendous amount of information on people right now without attaching it to a criminal act.
RAY SUAREZ: So you’re saying that these new laws governing the work of agents in the field were not needed?
LAURA MURPHY: I don’t think they were needed and I don’t think that they address the problems that were outlined in the Phoenix memo and Minnesota memo. Those memos outlined communications problems between field offices and headquarters and a failure to analyze relevant information.
They were getting the information, but they weren’t processing it correctly. And what these guidelines do is open up a whole array of investigations on constitutional activity like worship, like free speech. All of these investigative tools will now be applied to these activities so that the FBI can collect data and create dossiers.
I think the Attorney General is just wrong when he says that we will not go back to the dark old days where dossiers will be created about individuals and organizations involved in dissent or protest or unusual organizations in this country.
RAY SUAREZ: Larry Langberg, how do you respond to that?
LARRY LANGBERG: Well, I think obviously the changes in the guidelines were needed. The FBI has been hampered. We’ve almost gotten to the point where you have to have blood on the ground. I noticed Ms. Murphy said that we don’t need blood on the ground but really to do an effective investigation we almost have to have blood on the ground under the old guidelines. I think these are measured prudent changes that are called for by the times that we’re in.
RAY SUAREZ: Well, the Attorney General spoke earlier today about how agents were, quote, hampered in their work by the current or the now sun-setting set of guidelines. As a former field agent, give me an example of how that would be.
LARRY LANGBERG: Well, you more or less almost had to know that the crime had taken place prior to opening a case. So the FBI was put in a situation where it was much more reactive than in a situation where it could be proactive. And I think with the lessening of these guidelines it’s going to allow the FBI to be much more proactive. We don’t have to wait for the next bomb to fall, and we don’t have to wait for the smoking gun.
RAY SUAREZ: Well, how does that does that work in the framework of police work where you have to generate probable cause, that sort of thing? How does that work within the way we think of police agencies working?
LARRY LANGBERG: Well, probable cause will still be a very major issue in anything that the FBI does. But in intelligence gathering we’re not looking so much for probable cause; we’re just looking and listening so that we know what is going on.
LAURA MURPHY: I just find this amazing, because there are two sets of guidelines. There are domestic guidelines, and there are international terrorism guidelines. The international terrorism guidelines are classified. And we know that they are much more loose, and we know that those guidelines were being used to investigate al-Qaida and other international organizations that posed a threat to the safety and security of the United States.
And these domestic guideline changes are not going to effect those investigations, because already al-Qaida was investigated under those looser guidelines where you don’t have to have blood on the floor or probable cause. What these new guidelines do is expand the reach of the FBI not just in domestic terrorism investigations, but in racketeering, in white-collar crime, in run of the mill crime, drug crime.
I know they’re going to do less that have but these guidelines are a vast expansion of investigative authority and data collection authority on, again, constitutional activity within the United States applying to a whole range of issues outside of terrorism investigations related to things like 9/11.
RAY SUAREZ: Larry Langberg does it change all the rules not just for investigating terrorism as Laura Murphy suggests?
LARRY LANGBERG: Now the changes that are being made are classified so I don’t exactly know what those changes are and nor does Ms. Murphy know what they are, is all we can comprehend are the snippets that we have been given by Director Mueller and Attorney General Ashcroft but I think the important thing is it allows the FBI to go into public areas such as meetings, it allows the FBI to go on to the Internet.
These are activities that other citizens in our country freely do and there absolutely is no expectation of privacy in those situations. So once again we’re in a change situation here, we’re in a very serious situation. And we have to do everything that we can possibly do to make it easier for the FBI to thwart any future terrorists threats.
RAY SUAREZ: Well, just so people understand what the old rules entailed, when you say go into public places, surf the Internet, what was involved for a field agent trying to do those things before?
LARRY LANGBERG: Well, again, you’re starting to get into a classified area, but what the changes do as I understand, it doesn’t force you to have a smoking gun and it doesn’t force you have to have blood on the ground. The previous guidelines almost forced you to have to have an open and shut guilty case. So all this is doing is loosening things up and it is… it’s allowing the FBI agent to do what other citizens do. Surf the net. Go to a meeting.
LAURA MURPHY: Well what the FBI does is not benign like an average citizen. Now an FBI agent will be doing these things and be able to collect the data and share it with other agencies such as the CIA and the State Department, and I have to clarify something, the American people should know that these new guidelines are available at the Justice Department’s Web site and a summary of the guidelines are also available. So they are not classified.
But it is not a benign act when you know you’re in an organization or you’re in a religious group and there is an FBI person writing down what you say, taking notes about whose attended meetings, writing notes about what the purpose of the meetings are. Normally those things should be related to a specific investigation; they will no longer have to be related to a specific criminal or terrorism investigation.
And this is problematic because there is a long and sorry history of the FBI misusing this information for political purposes trying to undermine the anti-war effort, the Civil Rights movement, the El Salvador Freedom Community… in the 1980s, so there is a long and sorry history of what happens when the FBI is allowed to go far afield of collecting information that is unrelated to terrorism investigations or criminal activity.
RAY SUAREZ: Larry Langberg, what about Laura Murphy’s suggestions that these new ways of doing business can be abused, that surveillance, for instance, is different when somebody with an FBI badge does it from a member of the public?
LARRY LANGBERG: Well, I think the courts have regularly held as long as there is no expectation of privacy that really what an FBI agent does is no different than another citizen does and the only reason we would go to the meeting is if there was an indication that there would be criminal actions there — or go on to the Internet — there is an indication by surfing the Internet that you would find some criminal acts. And so I don’t… I’m not as worried about this. I don’t think it’s a sinister move. I think it’s a very prudent and measured move by Attorney General Ashcroft to try to safeguard our nation in this very dangerous time that we’re in.
RAY SUAREZ: Well, can it be policed, after Ms. Murphy suggested that those kinds of police powers have been abused in the past by the FBI?
LARRY LANGBERG: You know, the FBI, as far as I’m concerned, has done a fantastic job in the 30 years I was involved with it. There have been some errors from time to time. There always are errors, not everyone is perfect. There is no businessman or agency out there that is perfect. But I know that the FBI is composed of great FBI agents, and they’re going to do the best job that they can possibly do. The Attorney General has in his opening statement that you played earlier, has clearly stated that there will be, there will be safeguards in place to make sure that nothing does go wrong.
RAY SUAREZ: And I guess you’ll be watching?
LAURA MURPHY: We’ll be watching and it’s very sad that the Attorney General has made this a unilateral action. He’s not consulted with Congress about changing these guidelines. He refuses to meet with civil liberties groups. And this is really a sorry state of affairs.
RAY SUAREZ: Laura Murphy, Larry Langberg, thank you both.