Politicizing the FBI

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.

Can the FBI Be Trusted?

By David K. Shipler

            On a March weekend in 2004, senior fingerprint examiners were called urgently into work at the FBI crime lab in Quantico, Virginia. A print had come in from the Spanish National Police, found on a blue plastic bag of detonators discovered after ten bombs had blown up on trains in Madrid, killing 191 passengers and wounding more than 1,400. Under stress, the examiners hastily matched the print—erroneously—to Brandon Mayfield, an Oregon lawyer who had converted to Islam.

This case is worth recalling in light of the current uproar over Hillary Clinton’s emails, because it provides rare insight into the FBI’s capacity for circular reasoning and sloppy forensics—even downright intellectual dishonesty. Time and again over the years, Americans have seen that alongside the many fine FBI agents are lazy thinkers who filter evidence to suit their imagined theory of a crime, and who prejudge people based on religion and ethnicity.

The agency is less nefarious than under Director J. Edgar Hoover, when it launched covert operations against civil rights and antiwar activists, but it remains well below its mythical high standards. Given the rules-be-damned posture of its current director, James Comey, it needs to be watched closely.

Mayfield was arrested as a material witness, his reputation was shredded, his family was traumatized, and his law practice was severely damaged before he was cleared—not by the FBI but by the Spanish police, who kept insisting that the print was not a match at all. In the end, the FBI’s misdeeds cost taxpayers $2 million to settle Mayfield’s lawsuit.

The Privacy Problem: Security vs. Security

By David K. Shipler

            We might be approaching a tipping point about privacy, as dramatized by the Apple-FBI dispute over decrypting a terrorist’s iPhone. After years of seeing privacy and safety as opposites in the war on terrorism, important segments of American society seem to be recognizing personal security and national security as parts of the same whole, not as a dichotomy in a zero-sum game. If this evolution continues, it could eventually produce a significant correction to the surveillance state that developed after the trauma of Sept. 11, 2001.

In the meantime, however, the two versions of security are colliding: the government’s rising concern about security from crime and terrorism in an age of digital encryption on the one hand, and, on the other, the public’s heightened interest in security from hackers, identity thieves, cyber-ransom demands, and—yes—government surveillance. Both sets of anxiety are justified. How to resolve the clash intelligently is far from clear.

The FBI’s effort to force Apple to create new software to disable an iPhone’s security features is propelling the courts forward in time at a faster speed than they typically travel. They usually lag well behind technology. But now they and Congress need to catch up quickly. That phone and hundreds of others sit in evidence lockers waiting to be cracked by law enforcement, requiring a creative effort by judges, legislators, prosecutors, and high-tech companies to make it possible—legally and technically—to execute a legitimate search warrant on a particular device without the risk of compromising security on all such devices.