WASHINGTON — A Justice Department plan would loosen restrictions on the Federal Bureau of Investigation to allow agents to open a national security or criminal investigation against someone without any clear basis for suspicion, Democratic lawmakers briefed on the details said Wednesday.
The plan, which could be made public next month, has already generated intense interest and speculation. Little is known about its precise language, but civil liberties advocates say they fear it could give the government even broader license to open terrorism investigations.
On Tuesday, I listened to a really great Fresh Air with Terry Gross segment with Michael Beschoss, on his book Taking Charge: The Johnson White House Tapes, 1963-1964.
A couple of bits of the original tapes from October 1964 are fascinating and have topical relevance. LBJ is on the eve of a reelection campaign, and his private conversations with a couple of key figures kept me in my car. Listen to his conversation with Billy Graham (about 9 minutes in at the link above) if you think that using evangelical leaders to cover one's political ass was invented in 1980.
The segment that I'm thinking about this morning, though, was a conversation toward the end of October with J. Edgar Hoover.
LBJ is worried, because there are rumors of a pending "October Surprise" planned by the Goldwater camp. Specifically, he's worried that Goldwater's team may have found and will name secret homosexuals within the administration, or photos of Johnson himself with a woman of ill repute. A Republican operator has scored a point earlier in the month, discovering that close Johnson aide Walter Jenkins was arrested at a DC YMCA having sex with a man. The press was tipped off, and Johnson suddenly feels vulnerable on the "morality" issue.
On the one hand, this tape has a comic edge: Johnson is aware of the rumors about Hoover's sexuality, so he is probably taking some real pleasure in pressing him about how one might know that someone was "queer". It's amusing if disgusting as they discuss the ways men part their hair, "walking funny", mannerisms, and the like.
But this conversation is only one part of a broader narrative. Johnson was on the phone with The director of the FBI a lot during these weeks, for one reason and one reason only: to put a stop to any opposition research hitting the press in the run up to the election.
Beschloss makes the point that this was in no way atypical presidential behavior. That the FBI should be used to silence potential scandal doesn't appear to have been questioned. We talk about the "hands off" approach that the press took with FDR's disabilities or JFK's private life, but I wonder how much of that had to do with the presidential ability to call out the goons when needed to squelch gossip or unflattering information.
The Nixon administration's grasping paranoia brought an end, for a time, to the use of the FBI as a private security force and the DOJ as a political shield. But since 9/11/01, new fears and paranoia have given strength to the expansion of executive power and the lessening of restrictions or oversight with regard to the practices of the military, the FBI, the NSA, and the DOJ. The agencies and institutions which could wreak the most damage to a constitutional republic have been steadily freed from restrictions designed to protect the country and its citizens from constitutional abuse, while the institutions whose role it is to provide oversight and correction have seen their influence steadily usurped (congress) or undermined through political maneuvering and deck-stacking (the courts, the free press). All under the undying zombie meme that they need all these "tools" to prevent another major terrorist attack.
But. It has been extensively documented that the failures of the FBI and intelligence agencies prior to 9/11/01 were due not to a lack of information, but a lack of action. The FBI had plenty of dots to connect, plenty of actionable intelligence. The lack was in leadership. Anti-terrorist investigation was not given priority, and key information was not shared up the chain of command.
The idea that 9/11/01 would have been prevented if only the agencies had better tools is false. But it's prevalent, and it has lead to the destruction of law and order, and of constitutional protections. While I'm sure that Bush and Mukasey really just want to keep everybody safe, they are creating tools which can -and will, given our history- be used as political bludgeons, and undermine the integrity of our criminal justice system.
Quite a legacy.
Mukasey, for his part, says that the new guidelines are intended merely to assist poor, confused agents, who cannot seem to figure out the rules as they are (this is the same reason Mukasey gives for the politicization of Justice under AG Gonzalez). He has agreed not to sign the new guidelines until after a congressional hearing on 9/17.
Let's hope the congress shows some spine. That would be a nice change.
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