National Security Policy Counsel for the American Civil Liberties Union. From 1988 to 2004 he served as an FBI agent specializing in domestic counterterrorism.
Civil liberties advocates are raising alarm over news the FBI is giving agents more leeway to conduct domestic surveillance. According to the New York Times, new guidelines will allow FBI agents to investigate people and organizations "proactively" without firm evidence for suspecting criminal activity. We speak to former FBI agent Mike German, who now works at the American Civil Liberties Union, and Texas activist Scott Crow, who has been the focus of intense FBI surveillance from 2001 until at least 2008. Using the Freedom of Information Act, Crow received 440 pages of heavily redacted documents revealing the FBI had set up a video camera outside his house, traced the license plates of cars parked in front of his home, recorded the arrival and departure of his guests, and observed gatherings that Crow attended at bookstores and cafes. The agency also tracked Crow’s emails and phone conversations and picked through his trash to identify his bank and mortgage companies. “It’s been definitely traumatizing at different points,” says Crow. “But if we don’t come out and be open about this, then they’ve already won, and the surveillance and the ‘war on terror’ wins against us.” [includes rush transcript]
AMY GOODMAN: Civil liberties advocates are raising alarm over news that the FBI is giving agents more leeway to conduct domestic surveillance. According to the New York Times, new guidelines will allow FBI agents to investigate people and organizations "proactively" without firm evidence for suspecting criminal activity. The new rules will free up agents to infiltrate organizations, search household trash, use surveillance teams, search databases, conduct lie detector tests, even without suspicion of any wrongdoing.
The revised guidelines come as the FBI’s existing practices have already come under wide scrutiny. Last month, the New York Times revealed a number of new revelations against activists targeted by domestic spying. One of those activists is 44-year-old Scott Crow, an Austin, Texas resident, self-proclaimed anarchist. He has just learned he was targeted by the FBI from 2001 until at least 2008. Using the Freedom of Information Act, Scott received 440 pages of heavily redacted documents revealing the FBI had traced the license plates of cars parked in front of his home, recorded the arrival and departure of his guests, observed gatherings that he attended at bookstores and cafes. The agency also tracked his emails and phone conversations, picked through his trash to identify his bank and mortgage companies, visited a gun store where he had sought to purchase a rifle for self-defense. Agents monitored — also asked the Internal Revenue Service to examine his tax returns, and even infiltrated activist groups he associated with. While Crow has been arrested a dozen times in his years of activism, he has never faced a charge more serious than trespassing. He is among a growing number of people and groups finding themselves on the receiving end of government spying.
Well, Scott Crow joins us now from Austin, Texas, to tell his story. And we’re also joined from Washington, D.C., by Mike German, national security policy counsel for the American Civil Liberties Union. He previously served as an FBI agent specializing in domestic counterterrorism from 1988 to 2004.
Mike German, we want to start with you on the most recent news of the new leeway granted to FBI agents, of which you were one years ago, to monitor people, not under any criminal charges or even suspicion. Explain what you understand is happening right now.
MIKE GERMAN: Right. You might remember that in 2008 Attorney General Michael Mukasey altered the attorney general guidelines that govern the FBI’s investigative authorities, and he created a new category of investigations called "assessments." And these required no factual predicate — in other words, no evidence that anybody had done anything wrong, much less the person who is under investigation. And there are a number of intrusive investigative techniques that were allowed to be used, including physical surveillance, including recruiting and tasking informants, including FBI agents acting in ruse trying to gather information from the subjects of the investigation, conducting interviews, even using grand jury subpoenas to get telephone records.
What the new changes to the FBI’s internal policy is, to allow FBI agents, even without an assessment being open, to search commercial databases — these are subscription services of data aggregators that collect, you know, a broad swath of information and really have a lot of detailed private information about people — and also state and local law enforcement databases. Again, this is without any suspicion of wrongdoing. Without even opening an investigation, agents can start searching for all this private information.
Another increase in their authority is with assessments that they use to determine whether an informant is — whether they can recruit an informant. And one of the things they’re allowed to do is they’re adding trash haul, which means that when you put your garbage out for the garbageman to pick up, it’s an FBI agent picking it up instead, and they go through all this material. And when I asked why they would want to give agents that authority — again, before you have any evidence of wrongdoing — and they said, "Well, it’s often helpful to find something derogatory that could be used to pressure the person into becoming an informant." So, you know, this is a technique being used specifically to coerce somebody to cooperate against their neighbors or co-workers.
AMY GOODMAN: The FBI declined our interview request today but did send us a statement about the new guidelines. Quoting FBI General Counsel Valerie Caproni, saying, quote: "Each proposed change has been carefully looked at and considered against the backdrop of the tools our employees need to accomplish their mission, the possible risks associated with use of those tools, and the controls that are in place. Overall, this is fine tuning, not any major change. The FBI’s authority to use specific investigative tools is determined through the U.S. Constitution, U.S. statutes, executive orders and the Attorney General’s Guidelines for Domestic FBI Operations. The Domestic Investigations Operations Guide cannot and does not confer additional powers to agents beyond that provided by those controlling authorities." Your thoughts on that, Mike German?
MIKE GERMAN: Well, again, the 2008 attorney general guidelines so loosened the standards for FBI investigations that they’re basically nonexistent. No factual predicate is required. So the idea that agents would be able to start those investigations without even going through an administrative hurdle of opening an assessment, I think, is an expansion of power that is completely unaccountable.
AMY GOODMAN: I want to go to Scott Crow to hear a real-life story. Scott, talk about when you first applied under the Freedom of Information Act to get information about whether the FBI was monitoring you.
SCOTT CROW: Well, there’s a local organization called the Austin People’s Legal Collective. It all came out after Brandon Darby came out as an informant in 2008. Austin People’s Legal Collective decided to put together a FOIA request for about 30 activists, about 40 organizations and about 10 events going back to the year 2000 in Austin. We sent it to multiple field offices around the country and then — to see what we’d get back, to try to build a picture of what kind of surveillance had been going on, if there’s other infiltration. And in that, most — about 50 percent of the documents that came back came back with nothing. About 30 percent came back — people came back with a mention, or a group came back with a mention. And then there was two cases, a case with the woman who organized the Showdown in Texas, which was an event in 2003 — there was about 400 pages of documents — and then mine was a case where they had years of extensive documentation going on. And that was kind of the impetus of it all. And through that, I was able to find out that, you know, that I had — there had been five informants in my life. Brandon Darby was just the last one, who had run through our communities. But when we did this, we did it across nine states. And I found out I was investigated in nine states for arsons and other criminal acts that I was never charged with.
AMY GOODMAN: Now, Brandon Darby, for those who aren’t familiar, who has become a very familiar name in progressive circles, explain your relationship with him and who he is.
SCOTT CROW: Brandon Darby was a person who had been a friend of mine and been on the edge of the activist community within Austin for a number of years. He and I had gone to New Orleans together, and then I ended up co-founding an organization called Common Ground Relief out of that, out of those actions. And he worked at Common Ground for a couple of years and left, and then he ended up setting up — participating in this case with two men at the Republican National Convention, where he possibly entrapped them, but definitely provoked them into doing actions that they would not normally have done, which they ended up going to prison for. And then he came out as an informant, and it turned out he had been investigating a number of us for a number of years.
AMY GOODMAN: So, when exactly did you get the documents from the FBI? And talk about the extent that they showed of their surveillance of you.
SCOTT CROW: Well, let me — let me backtrack for a second. I first found out that I was listed as a domestic terrorist in 2006. The FBI, in the way that they ended up dealing with a lot of law enforcement around the country is they let the local DAs and the local law enforcement officers know in different cities. So in 2006, they let the DA in Baton Rouge know, and he let the lawyers for the Angola 3 know, and the Angola 3 lawyer told me. And that was the first time I ever heard about it, that I was listed as a domestic terrorist and an animal rights extremist.
And what it did was it opened up this world of possibilities in this kafkaesque world, where I’m not being formally charged with anything, but all of these things are happening. I mean, I could see people sitting out in front of my house for years — I mean, all different kinds of cars. And I’m not a paranoid person. I live a very transparent, open glass house. But I could see all these things happening.
There was a BOLO that was issued, a "be on the lookout" report that was issued in 2008, in the Austin Police Department that said I might injure police officers, burn down police cars, or incite riots. And the way I knew about it is because people from the city that I had worked with told me that they saw this poster with my picture on it. Now, again, I couldn’t do anything about this. Well, finally, in 2010, I get these documents that list me as a domestic terrorist since 2001, and it starts — the picture starts to become clearer on all of the things that the FBI has been doing across states, across multiple states, to investigate me and to sow dissent, basically, amongst local and regional law enforcement.
AMY GOODMAN: Some of the redacted FBI documents that show the surveillance of you, Scott, have been posted on the New York Times website. One FBI report describes the meeting of an activist group that you were a part of, saying, quote, "Most attendees dressed like hippies, had [dreadlocks] (both men and women), and smelled of bad odor." Another report has the extensive details on the contents of your trash.
SCOTT CROW: I mean, those two incidences just scratch the surface. The infiltration happened over and over again in different groups, in different events. There would be law enforcement and informants and people gathering information at all different levels — city, county, state and federal authorities — and private security, too. It’s a revolving door between that sharing information and all of these things. Going through the trash was part of it.
But really, what was — to me, what I think we should talk about is that — how much money they spent investigating me, and not charging me with anything. You know, like, if I’m the tip of the iceberg and there’s other people in other communities that they’re doing this with, how much is the government spending to do something like this? And what kind of chilling effect does it have on activist communities and on us as citizens in this country?
AMY GOODMAN: How extensive, in terms of throughout the United States, was the monitoring of you, Scott? What have you figured out at this point?
SCOTT CROW: Well, they investigated me in nine states, like I said, in 12 field offices. There was five informants. There was one in Austin, two in Houston, one in Dallas and one in Detroit. I could only identify three of those people. The other ones I can’t even identify who they are, people I might have come in contact with over and over again. But they’re targeting —- but what we found out through these FOIAs -—
AMY GOODMAN: They went to —- they went out -—
SCOTT CROW: —- and through other FOIAs that -—
AMY GOODMAN: They went out to the IRS to investigate you, as well?
SCOTT CROW: Absolutely. They sent a letter to the IRS to see if they could get me for tax evasion. And luckily, my partner Ann and I had always had our taxes done, because we had owned our own businesses for the longest time, and they found — the IRS came back and said they couldn’t — there was nothing they could do about it. And there seemed to be a consternation at the FBI about that.
They also used closed-circuit television on a house in Dallas that I lived in, and then in Austin, where they put cameras across — on poles across the streets from my house. The levels that they went to, I think, are unimaginable to most people, because it’s what you hear about in movies or what people fear the most about it. But pretty much anything that you can think of that they did, except for kicking my door in, happened to me. I was threatened with grand juries, the trash digging, which they did on two occasions on the trash digging, being visited at my work and visited at my home. You know, Mike German spoke to, earlier, how they try to put pressure on people to give information. I was first visited by the FBI in 1999. That was the first time I ever heard the words "domestic terrorism" and "animal rights" used together. And also, not only did they try to implicate me in some crimes in Dallas or say that I had — or suggest that I had some responsibility for those crimes, then they tried to use that pressure to get me to give information on other people.
AMY GOODMAN: Now, you were —
SCOTT CROW: And so, how many people is that happening to across the country?
AMY GOODMAN: That is a very important question. Mike German, you’re with the ACLU. There have been a number of raids. These are the obvious — you know, more obvious manifestations of this, raids in Chicago and Minneapolis of activists’ homes. Can you talk about how wide this surveillance is and what you understand is happening in other parts of the country?
MIKE GERMAN: Sure. I think, like Scott said, we only see the tip of the iceberg. But in 2004, 2005 and 2006, the ACLU issued a number of Freedom of Information Act requests for Joint Terrorism Task Force investigations against a number of political — politically active groups who suspected that they were spied on, the same way Scott did. And we uncovered widespread surveillance of different, you know, peace and justice groups, environmental groups, all kinds of different groups. And that, in turn, started an inspector general investigation that was just released in September of 2010 that showed that the FBI was opening these investigations with what they called factually weak predicates, sometimes even speculative predicates. So it wasn’t that they thought that the groups were involved in any criminal activity now, but just that it was a possibility in the future they might be. Well, of course, that’s true for all of us. We all might be future criminals. And that was the sole criteria that the FBI was using to open preliminary inquiries.
Now, these are supposed to be predicated investigations where there is some factual basis. And these investigations, unfortunately, the IG only looked at the cases that the ACLU had already uncovered. He didn’t look beyond those. But what he found was those investigations remained open for years, with no evidence of wrongdoing, that the victims of these investigations would be put on terrorist watch lists. And, you know, you can imagine, for a political activist, you know, kind of like Scott recounted, when the FBI is going around telling local officials that this political activist is a terrorist, that cripples their ability to be effective in their advocacy. And it creates a huge chilling effect that affects not just the people under investigation, but others active on those political issues, and even further, people who want to be active but feel it’s not worth it to come under that kind of surveillance. So it has a real serious effect on our democracy. And that’s really, you know, one of the most dangerous parts about this.
AMY GOODMAN: How has the FBI changed from Bush to Obama? I mean, Robert Mueller has now been head of the FBI for almost 10 years under Bush and Obama.
MIKE GERMAN: You know, this meeting that we were brought to about the expansion of the FBI’s authority last month was really the first opportunity. We were hoping, because we criticized the 2008 guidelines that were put in place in December of 2008 — so, literally just a month before the Obama administration took over — we had criticized those heavily, so we were hoping that what we were going to hear was that our criticism had been heard and that they were going to scale back some of the things they were doing. One of the things that we’re still working on is an authority the FBI has given itself in their internal guidelines that allows them to collect racial and ethnic demographic data and to map racial and ethnic communities and collect racial and ethnic behavioral information, whatever that is. And we’re trying to use Freedom of Information Act to get at that information, but it’s difficult.
AMY GOODMAN: Scott Crow, what are your plans right now? And I want to ask Mike German also, what kind of recourse does someone like Scott have, now that you’ve learned the extent of the surveillance? Do you even know, Scott, right now if you’re be monitored?
SCOTT CROW: I assume that I am, because my documents ended in 2008. They said that was all that there was. And just to clarify, they gave me 500 pages of 1,200 pages. So there’s still 700 pages more to get. We’re going to sue to try to get the rest of them and try to get the redactions taken away, so we can see what was going on. But my biggest thing is not to — to tell people not to be afraid, because everything that people fear I’ve had happen to me, and I’m still OK. And I don’t mean that in a cavalier way, because it’s been definitely traumatizing at different points, but if we don’t come out and be open about this, then they’ve already won, and the surveillance and the "war on terror" wins against us.
AMY GOODMAN: And Mike German, the kind of recourse people have? How do they even find out if they are the subject of surveillance?
MIKE GERMAN: It’s very difficult. I mean, one of the things that we’re just finding out in a California case is that the FBI and the Department of Justice have been interpreting a portion of the Freedom of Information Act to allow them to falsely say they do not have responsive documents when they do. So it makes unclear whether the government is even being upfront about whether they have documents that they’re not giving you. So it’s very difficult, but we’re working with the Freedom of Information Act the best we can. We’re working through the courts, and we’re working on Capitol Hill, trying to get our elected representatives to realize how important this is to the American public and to our democracy. If people are afraid to engage in political activism, that’s ultimately going to hurt us more than, you know, the waste of resources and other aspects of this that are also untenable.
AMY GOODMAN: Well, I want to thank you both very much for being with us, Mike German, national security policy counsel for the American Civil Liberties Union, formerly an FBI agent specializing in domestic counterterrorism, and thank you to Scott Crow, Austin-based activist targeted by FBI surveillance. His book Black Flags and Windmills is set to be published in August.