April 26, 1995 Honorable Arlen Specter Chairman Judiciary Subcommittee on Terrorism, Intelligence and Gov't Information United States Senate 161 Dirksen Office Building Washington, DC 20510 Dear Senator Specter: We write on behalf of the Electronic Privacy Information Center ("EPIC"), a non-profit research organization concerned with the protection of privacy and civil liberties. We are particularly interested in the preservation of Constitutional freedoms in the evolving communications infrastructure. Increasingly, the Internet and other digital systems facilitate the expression of political opinions and have, in effect, become the electronic town squares of our information society. For this reason, EPIC believes that any expansion of federal authority to investigate political activity and/or expression could have a profound impact upon those networks and the future of electronic democracy. As the Committee begins its examination of the tragic events in Oklahoma City, we urge careful and deliberate consideration of any proposal that would alter current guidelines governing the investigation and monitoring of domestic political activity or the collection and use of personal information. The Congress must be careful not to compromise fundamental constitutional values as it seeks to address the obvious security concerns in the wake of recent events. As Justice Powell observed in the Keith case:History abundantly documents the tendency of Government -- however benevolent and benign its motives -- to view with suspicion those who most fervently dispute its policies. [Constitutional] protections become the more necessary when the targets of official surveillance may be those suspected of unorthodoxy in their political beliefs. The danger to political dissent is acute where the Government attempts to act under so vague a concept as the power to protect "domestic security." Given the difficulty of defining the domestic security interest, the danger of abuse in acting to protect that interest becomes apparent.United States v. United States District Court, 407 U.S. 297, 314 (1972). In order to assess whether it is necessary to make changes in the current policies concerning the investigation of domestic organizations, we believe it is necessary to look closely at the history of federal investigative authority. As you know, the evolution of the current requirements governing the FBI's conduct of domestic security investigations dates back to 1976. In that year, President Ford's Attorney General, Edward Levi, issued "Guidelines on Domestic Security Investigation," which came to be known as the "Levi Guidelines." This directive, which recognized the FBI's legitimate investigative needs while seeking to protect the First Amendment rights of dissident politic organizations, was promulgated in the wake of Watergate and the revelations of the Senate's Church Committee investigation./1/ The Levi Guidelines reflected the post-Watergate consensus that the investigation of controversial or unpopular political groups had at times been overzealous and had violated fundamental constitutional rights./2/ Seven years later, in 1983, the Levi Guidelines were superseded by the "Attorney General's Guidelines on General Crimes, Racketeering Enterprise and Domestic Security/Terrorism Investigations," issued by Attorney General William French Smith (the "Smith Guidelines"). The revised guidelines were generally considered to be far less restrictive than the Levi Guidelines. As FBI Director William Webster noted at the time of their issuance, the Smith Guidelines "should eliminate any perceptions that actual or imminent commission of a violent crime is a prerequisite to investigation."/3/ The guidelines provide, in pertinent part, that[a] domestic security/terrorism investigation may be initiated when facts or circumstances reasonably indicate that two or more persons are engaged in an enterprise for the purpose of furthering political or social goals wholly or in part through activities that involve force or violence and a violation of the criminal laws of the United States.Smith Guidelines (reprinted in 32 Crim. L. Rep. (BNA) 3087 (1983)), Section III (B)(1). The standard of "reasonable indication" issubstantially lower than probable cause. In determining whether there is reasonable indication of a federal criminal violation, a Special Agent may take into account any facts or circumstances that a prudent investigator would consider. However, the standard does require specific facts indicating a past, current, or impending violation. There must be an objective, factual basis for initiating the investigation; a mere hunch is insufficient.Id., Section II (C)(1). Given the constitutional command that the government may not suppress or punish statements advocating criminal activity unless they pose an immediate and substantial danger to public safety, Brandenburg v. Ohio, 395 U.S. 444 (1969), the Smith Guidelines afford the FBI considerable leeway in pursuing investigations of potential violent crime. In a 1984 en banc opinion interpreting the Smith Guidelines, the Seventh Circuit Court of Appeals found that the directive strikes an appropriate balance between First Amendment rights and legitimate law enforcement. As Judge Posner wrote for the court,[the FBI] may not investigate a group solely because the group advocates [an unpopular cause]; but it may investigate any group that advocates the commission, even if not immediately, of terrorist acts in violation of federal law. It need not wait until the bombs begin to go off, or even until the bomb factory is found.Alliance to End Repression v. City of Chicago, 742 F.2d 1007, 1015 (7th Cir. 1984). Thus, the current guidelines provide the FBI with ample authority to initiate investigations of organizations and individuals similar to those alleged to have been involved in the Oklahoma City bombing. In reaching this conclusion, we note that a good deal of public source material concerning paramilitary right-wing organizations in general -- and the Michigan Militia in particular -- has been readily available to the FBI and other law enforcement agencies for some time. For instance, a front page article about the Michigan Militia in the Detroit Free Press last fall reported:Their goal is to keep the U.S. government in check, through threat of armed rebellion if need be. Gun control advocates, federal firearms agents and the United Nations are among the perceived threats. ... Federal officials are aware of these groups, but "we are not monitoring their growth," said Stanley Zimmerman, head of the Detroit office of the federal Bureau of Alcohol, Tobacco and Firearms. "It would be our preference that the militia groups would use the power of the vote rather than the threat of armed violent confrontation to accomplish their goals.""They Cite their Disgust with Government," Detroit Free Press, October 13, 1994, at 1A. Indeed, the Justice Department was specifically alerted to the activities of the Michigan Militia. Morris Dees, director of the Southern Poverty Law Center, disclosed in a recent interview that:We warned Attorney General Reno in a letter last October concerning this Militia of Michigan, the one that's involved in this case, and pointed out that they should be checking on them. ... [T]hese people, like Mark Koernke, are out actually advocating the overthrow of the United States government with individuals who are practicing and training with explosives, with assault weapons.ABC News, "This Week with David Brinkley," April 23, 1995. In recent comments concerning the adequacy of the Smith Guidelines, former Attorney General Griffin Bell and former Assistant Attorney General Victoria Toensing have expressed the view that the FBI possessed sufficient authority to investigate and monitor the activities of this organization and affiliated individuals. This conclusion is consistent with the observation of former FBI Director Webster, noted above, that the current guidelines "should eliminate any perceptions that actual or imminent commission of a violent crime is a prerequisite to investigation." As you commence your review into this matter, we strongly urge you to consider the views of many experts who share the opinion of these former officials. We urge you also to give similar careful consideration to any proposals for the modification of the wiretap statute or privacy statutes that would diminish the freedoms that all Americans currently enjoy. Any such proposal must be carefully drafted to address specific and identifiable harms. We urge you also to proceed cautiously in the area of electronic communications. Our country is in the process of developing the communication tools that will take us into the next century. While we share the President's belief that irresponsible speech should be opposed by responsible speech, we do not believe that enhanced surveillance of lawful activity by American citizens will serve the country well. Political and associational rights form the foundation of our democratic society. As the Committee and Congress examine the nation's contemporary security needs, the temptation to find expedient quick fixes must be resisted. Issues as fundamental as the ones you propose to address deserve and demand a thorough and open national debate. We look forward to working with you and the Committee as you consider these difficult questions. Sincerely, Marc Rotenberg, Director David L. Sobel, Legal Counsel cc: Sen. Fred Thompson Sen. Spencer Abraham Sen. Strom Thurmond Sen. Herbert Kohl Sen. Patrick Leahy Sen. Dianne Feinstein ================================================================== Notes /1/ See, generally, Final Report of the Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities, S. Rep. 755, 94th Cong., 2d Sess. (1976). /2/ Although some critics maintained that the guidelines were unduly restrictive, Attorney General Levi explained that they authorized the initiation of an investigation on the basis of a relatively benign statement such as "The rulers have set the time for the party; let us bring the fireworks," delivered by a group with no known propensity for violence. Alliance to End Repression v. City of Chicago, 742 F.2d 1007, 1012 (7th Cir. 1984) (quoting Congressional testimony of Attorney General Levi). /3/ Alliance to End Repression v. City of Chicago, 561 F. Supp. 575, 578 n.5 (N.D. Ill. 1983) (quoting internal FBI memorandum).