Janine Jackson interviewed Defending Rights & Dissent’s Chip Gibbons about the FBI vs. the First Amendment for the January 17, 2020, episode of CounterSpin. This is a lightly edited transcript.
Janine Jackson: We invoke protest a lot in this country, but many people are confused about the right to political expression: They don’t want to get on the wrong side of the law while arguing for righteousness; that’s not a familiar or comfortable spot for many people.
Some are honestly confused about which side the law is on. They haven’t accepted that their belief in the value of human life might make them a criminal, if the life in question is a child whose parents seek asylum, or an Iranian whose country is—this week—on the hot list of enemies of the state. That’s a hard thing to get your head around. Mainly, people think the law will uphold our rights, despite our knowledge that sometimes the state is the one stepping on them.
Our next guest examines just how state actors intervene in and undermine what should be protected political activity and speech. Chip Gibbons is a journalist and a researcher. He’s policy director at Defending Rights & Dissent, and author of the recent report Still Spying on Dissent: The Enduring Problem of FBI First Amendment Abuse. He joins us now by phone from Washington, DC. Welcome back to CounterSpin, Chip Gibbons.
Chip Gibbons: Always a pleasure to be on CounterSpin, one of my favorite programs.
JJ: Well, thank you.
You make clear that this report is not about Donald Trump per se, because these are issues that long predate him. But one of the more perverse developments, I would say, of the Trump moment is liberals—understandably eager for there to be some commensurate power to counter that of the White House—seeming to endorse the FBI as that force. So the report is completely relevant to the present moment, as history generally is.
But let’s just start briefly with what you looked at. What was the material for this project?
CG: Sure. So the material is all information that was already in the public domain. But what we went through and did was we looked at known incidences of FBI surveillance, monitoring or tracking of political protest since the year 2010, for the last decade. And what we found is that over that decade, the FBI has repeatedly used its counterterrorism authorities to spy on and monitor environmental groups, antiwar groups, labor groups—so basically, civil society activity for justice. And when you look at the incidences together, what you realize is that they’re not isolated incidents.
If you ever see media coverage of an FBI political spying scandal, it will be like, “FBI Spies on Environmental Protesters in Houston,” but it won’t say, “And just last week, the FBI was knocking on the homes of Palestine solidarity activists in Berkeley.” When you put these things together, what you see is how systemic the problem is.
And after we did that, we went a step further and looked at the history of political surveillance in the United States, to make the case that the trends that we see in the last 10 years, which continue to this day, are part of a larger history of political surveillance in the United States, as carried out by the Federal Bureau of Investigation.
JJ: And let’s be clear, the FBI themselves have acknowledged that they’re not talking about groups that have been engaged in known violence. They explicitly say, some of the people they’re surveilling are nonviolent, are peaceful organizations.
CG: In many of the cases, they do. We know from the files released via the Freedom of Information Act about the surveillance of Occupy Wall Street, the FBI acknowledged they were nonviolent. We know about the files released about School of the Americas Watch, which is a pacifist antiwar group that protests a notorious military training facility, where it has been training death squads and dictators in Latin America, that they were a peaceful group with peaceful intentions. They try to rationalize this by saying that at an unknown point in the future, that an unknown actor could infiltrate these groups and act violently, or in the case of Occupy Wall Street, they said the group could be exploited by a lone offender. But what’s really insidious here is that they clearly think that certain types of speech, therefore, are somehow suspicious.
And you see this logic even more in play with the “Black Identity Extremism” intelligence assessment, which states that if African Americans are concerned about police racism and social injustice, they’re more likely to engage in lethal retaliatory violence against law enforcement, and that’s a threat the FBI has to counter in the present. And what that’s saying is that being angry about social injustice you experience is somehow a pretext that one might then use to go and engage in crime. It’s a predetermining factor in criminality.
And you see that again with one of the FBI field offices had a report on, because of anger at the horrible treatment of migrant children who are in concentration camps in this country, that you’re more likely to see anarchists engage in violence against the government. So this treatment that certain types of speech lead to crime, and therefore are inherently suspicious. And you also see the government just, quite frankly, conflating speech itself with criminality or with terrorism.
JJ: I have to say, media play a role here, lifting up every foiled terror plot as justification for anything at all, because, you know, “Look, we foiled a plot,” even if the plot was the work of an FBI agent provocateur ginning up some confused man in a chat room. Whatever civil liberties or rights you want to hold up, I feel media play into countering that with, “But wait, this unknowable number of deaths has been prevented,” so this whole idea of preemptively preventing violence is incredibly insidious.
CG: Absolutely. And it’s good that you pointed out agent provocateurs, because the FBI has always used confidential informants to spy on dissent. But since 9/11, and especially in the Muslim community, those confidential informants have increasingly acted as agents provocateurs, going to people who are not suspected of any crime—in one case, they met someone, a random person in a parking lot of a mosque—and then suggesting, and in many cases enticing them to agree to terror plots that exist only in the FBI’s minds. And then when they agree to partake in them, they’re then arrested, and the FBI does these big press releases, a big press conference saying, “Oh, we foiled terrorism, we foiled a terror plot.” And that further justifies more repression.
Donald Trump’s Muslim ban, there are multiple iterations of it through multiple executive orders, but in the second executive order, to try to overcome the legal challenges to it, he cited a rationale for it, and he named two “terror plots” carried out by refugees. In both of those cases, the plots were the work of an FBI agent provocateur; in one of the cases, the judge found the plot to be an example of imperfect entrapment. So here you have the FBI manufacturing fake terror plots, and then going around using that to claim there’s a larger threat from terrorism than there actually is, and then that being used to justify more state repression.
JJ: Lyndon Johnson called the Gulf of Tonkin Resolution, “like Granny’s night shirt, it covers everything.” And I think that getting folks to accept the idea of a “War on Terror,” getting reporters to take that phrase out of quotation marks and suggest that it’s a solid, identifiable thing, that’s a real “Granny’s nightshirt” of a victory for some, including the FBI. I mean, the idea of just saying “terrorism” is allowed to justify a great deal.
CG: It is, and it unfortunately, in some cases, it predates, with the FBI, 9/11. They certainly accelerated the abuses after 9/11. But in the 1980s, they were using the “threat of international terrorism” to investigate opponents of Ronald Reagan’s foreign policy, and specifically the Committee In Solidarity with the People of El Salvador. And as part of this massive foreign counterintelligence investigation against a domestic group engaged in domestic political activity, once again protesting horrible injustices, they came up with a list of organizations who were in support of CISPES’s goals, and included the Maryknoll nuns on it. So they’ve long used the threat of terrorism or subversion or whatever to spy on dissent, and 9/11 and the existence of a “War on Terror” has only given them more legitimacy for delegitimizing dissent.
JJ: I said at the outset that some folks haven’t accepted that their desire to speak out for their beliefs can get them labeled criminal. Of course, some of us were born with that label; our “opposition” is stamped in our ethnicity or our gender presentation or our neighborhood. And something has changed, that 2008 decision about assessments, things have shifted, so that simply belonging to a certain community—on paper—is allowed to make you suspicious, yeah?
CG: Sure. So in 2008, Attorney General Michael Mukasey, George W. Bush’s lame duck attorney general, literally weeks before Obama comes into office, he puts out new attorney general guidelines. And what are the attorney general guidelines? The FBI was created as the Bureau of Investigation in 1908, without Congress’s approval. So to this day, they have no congressional or legislative charter, outlining who they can investigate, what techniques they can use, and why they can investigate someone. They’re not only a law enforcement agency, but they’re also an intelligence and national security agency.
So law enforcement, in theory, is supposed to be about investigating people for crimes and then prosecuting them. I think your listeners know that’s not really what law enforcement does. It’s more about social control.
But intelligence, on the other hand, doesn’t have any such mandate, so it’s much more broad. And they’ve always used that to spy on dissent. But in the Church Committee in the ’70s, a lot of this starts to come out, and people are outraged, and as a result, they don’t impose a legislative charter on the FBI; instead, they agree to this compromise where the attorney general creates guidelines for the FBI. And because these guidelines are created by the attorney general, any attorney general can change them.
And in 2008, like I said, Michael Mukasey issues new guidelines that are unprecedented in the scope of authority they give the FBI. They let the FBI carry out what’s called “assessments,” which are investigations that do not require a factual predicate to believe the individual is involved in crime, or threatens national security, merely a “authorized law enforcement purpose.” So for the first time since the Church Committee, the FBI has the authority to investigate people not suspected of any wrongdoing whatsoever.
JJ: The report also includes some recommendations and some thoughts about going forward. You’ve said the guidelines around them are murky, a lot of folks don’t understand who’s in charge of the FBI. Courts don’t call what they do “entrapment,” straight out, very often, just like we know law enforcement can lie to suspects, straight up lie to them. But the response is not to give, somehow, the FBI more power.
CG: No, I think what we need to do is, we need to actually have a legislative charter that defines what the FBI’s powers are, and they need to be limited to investigating only violations of the federal criminal code. And we need to have serious protections for the First Amendment, so that the FBI cannot initiate or conduct investigations involving the exercise of free speech unless there are specific and articulable facts that actually indicate that the subject of the investigation is engaging in a criminal act. I think that would be a huge one. I think limits on the use of informants, to not allow them—absent, once again, suspicion of crime—so there’s not the sort of dragnet informants you see, where you send a confidential informant into the Muslim community, where there’s no suspicion of any wrongdoing, and then you try to entrap people, or what should be called entrapment. You know, barring the informants from acting as agents provocateurs would be helpful.
And I think Congress needs to actually engage in its oversight role—I know that’s a shocking idea—and actually investigate what the FBI is doing, because we know from information in the public domain, that in the last decade alone, they’ve spied on Occupy Wall Street, Black Lives Matter, Abolish ICE movements, Palestinian solidarity movements, environmental movements. Obviously, that’s only the tip of the iceberg, because we don’t have access to all of the information which Congress could get, and they could ask the question: Why are these investigations been initiated? What other similar investigations have taken place? What is the scope of this political surveillance?
JJ: We should be able to argue that this infiltration and surveillance of protected activity is wrong, without having to tack on the note that, “Oh, and also, it actually doesn’t make you safer.”
JJ: And yet, the context is that we do need to make that clear to folks.
CG: Yeah, it’s unfortunate, but the more time the FBI spends investigating people who are engaged in nonviolent, political protected speech, the less time they spend investigating actual threats. If you actually believe the FBI is a tool to counter actual threats—which I suspect many of your listeners may not, but if someone did believe that—why would you then be OK with them being allowed to investigate people without any evidence of a crime, because that means they’re just out there doing futile or wasteful investigations, and diverting resources away from their stated purpose into this sort of political policing instead?
JJ: And then let’s just bring it back, because I am trying to say to folks, “You know, maybe you don’t think you’re a black identity extremist. But if you go through a checkpoint and you have some Assata Shakur in your backpack, hey….” There’s kind of an essentialism undergirding this, that there’s good people and bad people, and if people are bad, it doesn’t matter what you do to them. And I just would encourage folks to think, “This could be you. This can be you. This may be you right now.”
CG: Yeah, I think that’s important to remember that this type of surveillance threatens us all if we are engaged in political activity, and the FBI should not be allowed to investigate political activity, should not be allowed to investigate people who they have no factual predicate to suspect of wrongdoing. It’s insidious.
JJ: We’ve been speaking with Chip Gibbons, policy director at Defending Rights & Dissent. They, and this report, are online at RightsAndDissent.org. You can find Chip Gibbons’ piece, “Never Trust the FBI,” at Jacobinmag.com. Chip Gibbons, thank you so much for joining us this week on CounterSpin.
CG: Thank you for having me.Print