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The Feds Have a Long History of Ignoring Probable Cause in the Name of National Security

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Whether it’s called “domestic investigation,” as the FBI prefers, or “pre-emptive prosecution,” as critics term it, the bureau’s undercover counterterrorism effort harkens back to the notorious COINTELPRO operation spearheaded by J. Edgar Hoover.

Born of the apparent need to stamp out the spread of communist moles infiltrating the highest ranks of government, COINTELPRO later expanded to blanket surveillance and stings of any individual or group deemed a threat to national security. This included Martin Luther King Jr., whom agents, in an especially unenlightened bit of bureau strategy, tried to goad into suicide.

The program inserted informants and agents provocateurs into the American Indian Movement, Vietnam War protest organizations and other groups with a whiff of political dissent. The program was exposed in 1971, when eight hippies who couldn’t come up with a cooler name than “The Citizens’ Commission to Investigate the FBI” broke into a bureau field office in Pennsylvania and stole reams of classified documents. The group leaked the papers to the press, effectively driving a nail in COINTELPRO’s coffin.

In 1976, U.S. Attorney General Edward Levi issued guidelines for how the FBI could conduct future domestic spying. Perhaps most important, the guidelines required that agents have “specific and articulable facts” pointing toward an individual or organization’s violent activities. They also called for cautious and sparing use of informants. With these guidelines, the FBI proceeded to launch one of the most dubious operations in its history: ABSCAM. Posing as wealthy Arab investors looking to launder money through city, state and federal officials, agents sought to stamp out corruption.

“After ABSCAM, Congress got pissed,” says Charles Swift, attorney and director of the Richardson-based Constitutional Law Center for Muslims in America. “Congress changed the law [and] said the FBI couldn’t initiate one of these sting operations unless there was probable cause to believe there was ongoing crime. After 9/11, that got changed for national security involving Islamic terrorism – so you don’t need any probable cause.” 

You can read more on how this is put into practice in this week's feature.

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