Privacy SOS

Journalists should fact check. Otherwise they are stenographers for power.

Have you ever heard the maxim, "You can't lie to the FBI, but they can lie to you"? Unlike many things your high school friends told you, this one is actually true. You can go to jail for years if convicted of "making false statements" to any federal government official, but FBI agents are allowed to lie to you, no problem.

It appears that they are also allowed to lie to the press.

Today is a big news day for those of us concerned about the FBI and NYPD's "demographic mapping" and surveillance of Muslim communities in the United States. There are hundreds of stories online and in the print media today alone describing the latest revelations from the AP's Polk Award-winning series on the NYPD's Muslim spying squad and its multi-state shenanigans.

But one story about the FBI's relations with Muslims in the US caught my eye because at the end of it, the FBI tells a big, fat lie. And the journalist just leaves it there, perched at the end of the story in black and white, as if it's true. It very literally is the last word in the piece:

"The FBI does not investigate individuals absent specific information that they are committing crimes or pose a threat to national security," [the FBI spokesperson] says. "Our internal guidelines expressly prohibit this conduct as well as such tactics to recruit informants."

The story is called "FBI enlists local Muslims to fight terror." It does not mention the documents the ACLU released in December 2011 showing that the FBI has repeatedly used "community outreach" as a fig leaf for its surveillance operations. Nor does it question anything the FBI spokesperson tells the journalist, including the above copied assertion that the FBI "does not investigate individuals absent specific information that they are committing crimes or pose a threat to national security."

That's a shame, because in fact, that's exactly what the FBI does.

Directly contrary to its assertion above, the agency's investigations guidelines clearly allow predicateless investigations. Charlie Savage of the New York Times has shown that the FBI's investigations guidelines, which explicitly permit investigations "absent specific information that [the targets] are committing crimes," have led to vast fishing expeditions that go nowhere. (When you target people against whom there is no evidence of wrongdoing, you are likely to end up empty-handed. Surprise!)

Well, almost nowhere. Savage found that after conducting 11,667 "assessments," or investigations that do not require any probable cause or reasonable suspicion or, as the FBI puts it, "specific information" indicating criminal activity, over a four month period between 2008 and 2009, the agency only continued working on 427 of those cases. 

Think about that for a minute. The FBI investigated 11,667 people with zero probable cause or reasonable suspicion required, and only pursued .0366 percent of those cases at the next level of investigation. Those statistics don't even show how many of the 427 cases it pursued led to arrests, or among those, how many convictions the FBI won. We can safely assume the number is somewhere below 100%.

We can also assume, given the agency's stated intent to "demographically map" ethnic and religious communities, that many of these assessments were directed at (innocent) Muslims. The FBI investigations guidelines have been relaxed many times over the past ten years to allow investigations targeted specifically at ethnic or religious groups: in 2002, 2008 and again in 2011. Each revision brought more permissive rules, allowing predicateless investigations, giving the FBI more leeway to spy on any of us for no good reason whatsoever.

The NYPD recently said that it follows the same investigations rules as the FBI, though the AP pointed out that in some cases it has been doing things that are beyond the pale even for the descendants of J. Edgar's G-men.

When you read the stories about the NYPD's extra-territorial fishing expeditions in Newark today, keep that in mind. The New York police are learning from the federal police, with their eye on Muslims. And the model ain't pretty.

© 2021 ACLU of Massachusetts.