By David K. Shipler
The FBI has never been entirely insulated from politics, especially during the long tenure of J. Edgar Hoover, who in his 48 years as director (1924-72) compiled compromising dossiers on government officials and private Americans that gave him enormous leverage. His agency tried to provoke Martin Luther King Jr. to suicide by threatening to publicize the civil rights leader’s womanizing. It sent phony letters to wives of Black Panthers, purporting to be from their mistresses. It conducted surveillance of labor leaders, members of Congress, and at least one Supreme Court justice, funneling information to presidents from Eisenhower to Kennedy to Johnson. (During the 1964 presidential campaign, LBJ had the FBI report on the staff of his opponent, Barry Goldwater.)
The road back to those days would be long and difficult, even with a President Trump who lacks ethical and constitutional brakes. But it’s possible, and Trump’s next moves will be telling. The first question is whom he’ll nominate to replace James Comey, fired just days after Comey requested more assets for the FBI’s investigation of Russian involvement in Trump’s campaign. The second question is whether enough Senate Republicans will demand that the new director be unassailably independent.
Because, make no mistake: Trump wants to swing his weight around as decisively as possible, and no more dramatically than in security and law enforcement. This is not only about covering up a Russia connection; it is to set the stage for draconian measures against Muslims after the next domestic terrorist attack, to emasculate investigations into police brutality, and to turn the power of the FBI against political dissent. Comey would probably have stood in the way. As bumbling as he was in his public disclosures about the Clinton emails, he was also known as a defender of the rule of law.
The FBI has a sordid history of hunting for phantom communists, keeping loyalty files on hundreds of thousands of Americans, wiretapping without warrants, and infiltrating and disrupting antiwar and civil rights groups—especially under what the bureau called COINTELPRO during the Cold War. Only in the 1970s, after the Church committee exposed the broad swath of wrongdoing, were protections imposed. These included restricting the FBI director to a 10-year term to preclude another Hoover phenomenon. But the position has no job security, obviously, since the president may fire at will.
With a Congress now led by collaborationist Republicans, and an attorney general, Jeff Sessions, ready to twist the law, the door is open for Trump to infuse the FBI with more political bias in investigations than has been seen since the administration of George W. Bush.
In those years, following the attacks on Sept. 11, 2001, FBI agents were released from restrictions—imposed after the Church committee findings—barring them from conducting surveillance of political or religious organizations. They had been prevented from attending even public meetings without specific justification for a criminal investigation. After 9/11, they and local cops wove themselves into peace groups and mosques, sowing internal suspicions among political demonstrators and Muslim organizations.
Those infiltrations produced mountains of sketchy files that smeared attendees with innuendo and sometimes led to disruptive home searches, sting operations, and prosecutions based on little more than the post-9/11 hysteria about terrorism. Some FBI operations came close to entrapment, but that’s a hard thing for defense attorneys to prove under the law. As a result, some jail cells are now populated with Americans who were incapable of conducting the terrorist attacks they were induced to plan by the FBI’s informants or undercover agents. This kind of criminal case, which resides in the blurry boundary between a security and a political prosecution, seemed to have been pursued less often under Comey.
Pure speech by Muslim activists came under close FBI scrutiny in the Bush years. An egregious case of prosecution with political overtones was made against a self-styled Muslim lecturer in suburban Virginia, Ali al-Timimi, who was convicted and sentenced to life plus 70 years for an informal talk to a small group of men five days after 9/11. It was quite a prison term, given that no violence occurred—or was even planned.
The government’s case was based on recollections by three men present, who were later jailed for receiving weapons training at camps in Pakistan, and then released early in exchange for their testimony against al-Timimi. As summarized in the trial, his words seemed a good distance from the imminence required by law to convict for incitement, for example. One man said, “He encouraged us to participate in the coming jihad . . . He said the battle in Afghanistan was imminent and that the Americans were going to attack.” Another quoted al-Timimi as calling the victims of 9/11 “combatants, not civilians,” since their taxes funded the war against Islam.
Offensive, to be sure. But al-Timimi didn’t buy them plane tickets to Pakistan, arrange for their training, or urge them to return to the US and plot any attacks. His crime was remote from action: “inducing others to conspire” to support terrorism. This appalled his lawyer, Edward B. MacMahon, Jr. who decried the “two sets of rules” developing in American law. “There are terror defendants and regular defendants,” he said. “If it was a business case and I said Bernie Madoff is a Jew so he stole all the money, you’d laugh at me. But if you said Ali al-Timimi is a Muslim so he’s at war with the United States, that’s taken seriously.”
Most FBI agents might be paragons of virtue who respect the limits imposed on them by the Constitution. But the bureau also has pockets of zealotry. At least two former agents have become activists in the movement of conspiracy theorists, endorsed by Trump’s adviser Stephen Bannon, who see Islam as a nefarious, subversive attempt to take over the United States. It’s not far-fetched to believe that some agents who still carry badges share those views, so when restraints from the top are loosened, the results can be ugly.
In short, stay tuned: The dismissal of Comey could be a step toward the enhanced politicization of the FBI and a ruinous erosion of liberty.