Breaking and associated brands will be offline for scheduled maintenance Friday Feb. 26 9 PM US EST to Saturday Feb. 27 6 AM EST. We apologize for the inconvenience.


Thank you for sharing!

Your article was successfully shared with the contacts you provided.
In the wake of Tuesday’s highly coordinated terrorist attacks, missed entirely by U.S. intelligence, many have called for improving our intelligence gathering and counterterrorism capabilities. There will undoubtedly be proposals to expand the Federal Bureau of Investigation’s authority to conduct counterterrorism investigations, to engage in electronic surveillance, and to gather intelligence about potential terrorists. But in thinking about what the FBI could do better, it’s worth looking at what it has done poorly in the past. The FBI’s track record on counterterrorism does not inspire confidence, but it does suggest one significant change that the Bureau can and should make: It should substitute targeted efforts to identify criminal conduct for broad-brush guilt by association directed at political activists. Guilt by association, a trademark of national security law enforcement efforts at least since the McCarthy era, is both unconstitutional and unwise. It’s attractive to law enforcement because it is much simpler to establish that an individual is a member of a suspect organization than to prove criminal conduct. But it violates basic constitutional principles of political freedom and individual responsibility. The U.S. Supreme Court has accordingly long ruled that individuals cannot be punished for association with a group engaged in illegal conduct absent proof that they specifically intended to further the group’s illegal ends. Guilt by association is also counterproductive as a security tactic. In suspecting whole groups of people, one is likely to spend substantial resources investigating wholly innocent (and indeed constitutionally protected) activities, and thereby to miss the true threats. When whole organizations and movements are treated as criminal, they are driven underground, and the extremists among them are encouraged. And perhaps most important, when law enforcement fails to draw careful lines and treats whole groups of people as presumptively suspect, those in the targeted groups are unlikely to cooperate with law enforcement, making it still more difficult to find the real criminals or terrorists. Yet the FBI has long engaged in guilt by association tactics rather than focusing on specific criminal conspiracies. It did so most famously under COINTELPRO, which infiltrated and spied upon dozens of civil rights groups and activists, including the Rev. Martin Luther King Jr. It repeated the pattern in its 1980s investigation of the Committee in Solidarity with the People of El Salvador (CISPES), a loose-knit domestic political group composed mostly of undergraduate students. The FBI launched a nationwide counterterrorism investigation of CISPES, ultimately collecting information on more than 1,000 organizations, including Amnesty International and the U.S. Catholic Conference. No criminal charges were ever filed. More recently, the FBI’s targets have been predominantly Arabs and Muslims. At its behest, the Immigration and Naturalization Service has spent almost 15 years seeking to deport a group of Palestinian activists in Los Angeles for their alleged affiliation with a faction of the Palestine Liberation Organization. FALSE SUSPECTS The FBI conducted a three-year investigation of the individuals in the mid-1980s and concluded that they had engaged in no criminal or terrorist activity. But it nonetheless wrote a 1,400-page report for the INS urging their deportation because doing so would hamper the group’s political activities. The FBI report reveals thousands of hours of surveillance, all of wholly lawful political activity, from demonstrations to leafletting to the distribution of magazines. Despite the absence of any evidence of criminal activity, the deportation effort continues to this day. More recently, the FBI has worked with the INS to detain and deport a number of Arab and Muslim immigrants on secret evidence that the immigrants had no opportunity to confront. In case after case, the government claimed, based on FBI reports, that the aliens posed a threat to our national security, and that because its evidence for the claim was classified, they should be detained on secret evidence revealed only to the judge behind closed doors. Yet in virtually every case, the evidence, once revealed, disclosed nothing more than guilt by association. In one recent case in Florida, for example, Mazen Al Najjar, a Palestinian professor, spent three and a half years detained on secret evidence before being released in December 2000. When he successfully challenged the constitutionality of his detention in federal court and was afforded a new immigration hearing, it became clear that the government’s case against him consisted principally of the fact that as an academic he had worked with and attended conferences with individuals who have subsequently been identified with terrorist organizations. The government never presented any evidence linking Al Najjar to a single act of violence, or even to advocacy of violence. In the end, an immigration judge ordered his release and then-Attorney General Janet Reno declined to overturn that decision — actions directly at odds with the FBI’s claims that Al Najjar posed a threat to our national security. It is one thing, of course, to investigate individuals or organizations where there is credible suspicion that they are engaged in or planning criminal conduct. But when the investigations go on for years and focus entirely on lawful political activity, the FBI is not only wasting its valuable and limited resources, it is violating constitutional rights. And when the FBI backs punitive actions against individuals for their political activities even when it has no evidence of criminal behavior, as in the cases described above, it has indulged in guilt by association. Such initiatives are unwise because they deflect the attention of law enforcement from stopping terrorist acts, and instead assign government the task of policing the lawful political activities of millions of immigrants. The FBI defends its targeting of the Arab community on the ground that that is where many of the threats emanate from. But even if that is the case, its broad-brush tactics have only managed to alienate that community, making cooperation with the FBI unlikely. Most important, if we sacrifice our most basic principles of freedom in the name of saving our country, what have we saved? So as we consider what reforms are needed to prevent future terrorist attacks, we should be careful not to empower the FBI to indulge in guilt by association and political spying, and should insist that the Bureau focus its efforts on fighting crime — not political dissent. David Cole is a professor at Georgetown University Law Center and a volunteer staff attorney with the Center for Constitutional Rights. He is the co-author of “Terrorism and the Constitution: Sacrificing Civil Liberties in the Name of National Security” (1999). Professor Cole represents Mazen Al Najjar and the Palestinians in Los Angeles referred to in this article.

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Advance® Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.