The Lichfield Group

The FBI’s voluntary questioning of persons reasonably expected to know of planned violence at the Democratic or Republican National Conventions exemplifies the vexing post-9/11 privacy choices the nation confronts in seeking to thwart terrorist crimes. That objective demands sleepless intelligence collection. To punish terrorist culprits after the fact would mark failure, not success. Just ask the friends and families of 9/11’s victims.

At present, the FBI’s circumscribed interviews seem prudent and constitutional. Neither citizens nor aliens enjoy a right to prevent law enforcement officials from seeking their voluntary cooperation through non-custodial interrogation. But to avoid fright or political docility, the FBI should inform interviewees that nothing asked should be interpreted to impair or deter their First Amendment rights of peaceful political dissent.

The FBI initiated its counterterrorism questioning days before the Democratic National Convention. An informant had warned against an alleged plot by self-described anarchists in the Midwest to throw Molotov cocktails at television vans. The Bureau compiled a list of persons reasonably thought to possess information relevant to foiling the terrorist plan. Each was confronted with three questions: were demonstrators planning violence or disruptions, did they know anyone who was, and did they know a crime would be committed if they withheld such information. Every interviewee held a constitutional right to refuse cooperation. FBI agents have continued their counterterrorism questioning in anticipation of the Republican National Convention, and in light of the self-evident terrorist incentive to cause mayhem at a major political event.

No censorship or intimidation of political dissenters is afoot. Neither is chilling FBI files that chronicle the exercise of First Amendment rights of free speech or association. A second edition of FBI Director J. Edgar Hoover’s notorious COINTELPRO aimed at civil rights and anti-Vietnam war protestors is not on the horizon. On the other hand, the FBI would have been remiss if the informant’s tip failed to stir pre-emptive avenues of counterterrorism investigation.

To argue the small chances of gaining interview information helpful in foiling a terrorism plot is unpersuasive. The interviewees were not selected at random, but from intelligence that pointed to potential knowledge of planned terrorist crimes. Moreover, small chances are worth the investigative effort when the lives of thousands are at stake, in contrast to detecting the illegal possession of marijuana. The recent 9/11 Commission Report confirms that prudence. In any event, the counterterrorism utility of the questioning cannot be assessed until after the investigative tactic has received a fair trial. In addition, the Bureau possesses no incentive to squander counterterrorism resources. And the Privacy Act prohibits FBI from maintaining records “describing how any individual exercises rights guaranteed by the First Amendment unless expressly authorized by statute …or unless pertinent to and within the scope of an authorized law enforcement activity.”

But legitimate FBI interviews could deter the unschooled in law and law enforcement from political protest because of visceral fears of retaliation. As reported last week in The New York Times, for instance, Sarah Bradwell, a 21-year-old intern at a Denver antiwar group who was recently visited by six investigators, declared that, “The message I took from it was that they were trying to intimidate us into not going to any protests and to let us know that, ‘hey, we’re watching you.’” The Bureau should thus conclude each interview with the assurance that peaceful political dissent is fully protected by the First Amendment and will not incur government suspicion or sanction. As Associate Supreme Court Justice Louis D. Brandeis recognized in Whitney v. California (1927), the greatest danger to liberty is an inert people, and public discussion is both a right and political duty.

Political activity, however, should not immunize criminal behavior. Denise Lieberman, legal director of the American Civil Liberties Union in St. Louis, thus erred in complaining to The New York Times of the FBI’s investigation of three young men in Missouri suspected of domestic terrorism. The three abandoned plans to protest at both the Boston and New York conventions after questioning about possible violence. They were not easily intimidated ingénues, but veterans of protests over American foreign policy and of planning meetings for convention demonstrations. Accordingly, Ms. Liberman insistence that the protest veterans were frightened by the interviews and “got the message loud and clear that if you make plans to go to a protest, you could be subject to arrest or a visit from the F.B.I.” seems dubious. And her fretting that “what’s so disturbing about all this is the pre-emptive nature—stopping them from participating in a protest before anything [violent] even happened,” misapprehends the urgency of prevention as opposed to prosecution to cripple terrorism.

Civilization is largely an enlightened balance between order and liberty. The terrorism danger taught by 9/11 justified greater compromises of individual privacy. But congressional oversight and executive self-restraint are necessary to insure that the compromises remain proportionate to the danger.

Bruce Fein is a constitutional lawyer and international consultant with Bruce Fein & Associates and The Lichfield Group.