In the months after 9/11, the FBI deployed its investigative apparatus as a blunt weapon. In November 2001, the Department of Justice began conducting “voluntary interviews” with 5,000 Middle Eastern non-citizens. Hundreds of FBI agents were dispatched across the country to conduct the interviews, with standard questions like “Are you aware of anybody who reacted in a surprising way about the terrorist attacks? Maybe you got to work and maybe a coworker said, ‘Good, I’m glad that happened’?”^[1] At the same time, Attorney General John Ashcroft instituted a “Responsible Cooperators Program” that offered U.S. citizenship to undocumented and out-of-status immigrants who could provide useful information about the 9/11 attacks.

[1] When the Michigan chapter of the American Civil Liberties Union offered free legal counsel to the men being interviewed, the ACLU’s hotline was overwhelmed with vitriolic messages. “When are you going to concern yourself with Americans?” asked one caller to the ACLU’s office. “You seem to be more concerned about a bunch of people who would just as soon kill us as look at us.” Another caller, an African American, said she didn’t approve of racial profiling, “but this is different. I think the government should go door to door and question every one of these Arabs.”

The Justice Department’s Office of the Inspector General later described the bureau’s efforts as “indiscriminate,” noting that “no distinction was generally made between the subjects of the lead and any other individuals encountered at the scene ‘incidentally.’” One paper told of five Arab-American Boy Scouts from Michigan detained with “fudge bags in hand” by FBI agents after they were spotted taking photographs while on a scenic ferry ride. Law enforcement detained more than 1,200 individuals, mostly men of Middle Eastern descent, on immigration or other low-level violations. Detainees were often held in solitary confinement, and under the DOJ’s “hold until cleared” policy they could be incarcerated indefinitely. The arrests were carried out largely in secret, protected from scrutiny by an order barring the press and the public from detention hearings to prevent “irreparable harm to public safety.”

These mass roundups, of course, echoed earlier moments in our history. In the run-up to World War I, President Woodrow Wilson decried the danger of “hyphenated Americans,” pointing specifically to Irish and German immigrants. During World War II, 110,000 Japanese Americans were interned without cause. These reactions were obviously hysterical, but were also temporary; the more recent emergency measures, however, have been institutionalized as a permanent law-enforcement priority. This new precedent began within days of 9/11 when, amid the finger-pointing over missed clues and intelligence failures, FBI director Robert Mueller issued a memo to his field offices describing a new policy of “forward-leaning—preventative—prosecutions.” Mueller wrote that “while every office will have different crime problems that will require varying levels of resources,” the FBI’s “one set of priorities” is to stop the next terrorist attack.

This memo, which detailed policies for “preemptive” operations, explains how, nearly a decade into our “war on terror,” Justice Department officials can claim we’ve caught hundreds of people domestically whom we call terrorists, while at the same time, according to the DOJ’s own statistics, only one person—an Egyptian immigrant who opened fire on an El Al ticket line at Los Angeles International Airport in 2002—has actually committed an act of terrorism on American soil. Instead, the U.S. government has amassed more than 1,000 federal “terrorism-associated” prosecutions by expanding its investigative purview beyond actual attacks, or even “ticking time bomb” threats, to focus almost exclusively on a theoretically unlimited array of potential threats. To catch a successful terrorist under this system would constitute a failure of law enforcement, because the perpetrators would have already committed the act. Rather, these agents are seeking “pre-terrorists,” individuals whose intentions, rather than actions, constitute the primary threat.

The pursuit of hypothetical enemies has long been considered illegal in the international arena. (Recall, for example, the labeling of political dissidents as “intellectual terrorists” under various CIA-backed regimes in Latin America during the 1970s.) But while such questions have been debated in relation to foreign interventions, the preemptive model of law enforcement has unfolded domestically with little dissent. The FBI’s own storied practice of spying on “subversive” Americans, including civil rights leaders, socialists, and antiwar protesters, was supposed to have ended in the 1970s with the disbandment of J. Edgar Hoover’s COINTELPRO. The Church Committee, which investigated domestic spying by the FBI and CIA after Watergate, found that during the fifteen years that COINTELPRO was active, the FBI “had conducted a sophisticated vigilante operation” that included “secret informants … wiretaps, microphone ‘bugs,’ surreptitious mail opening, and break-ins.” After the committee’s report, Congress passed restrictions designed to prevent such “forward-leaning” investigations by putting a wall between intelligence gathering and law enforcement.^[2]

[2] The revelation of illegal surveillance presented another practical problem for the FBI; court cases that relied on domestic spying for evidence were thrown out, including those against the Weathermen, who carried out dozens of bombings during the late 1960s and early 1970s.

The Patriot Act removed that wall, enhancing the FBI’s surveillance capabilities through new powers such as roving wiretaps, “sneak and peek” search warrants—which allow agents to search a suspected terrorist’s home without prior notice—and the expanded use of “national security letters,” which give agents access to personal records without requiring a court order. Where once the FBI’s chief work product, and a chief metric by which agents were judged, was arrests that could withstand the scrutiny of prosecution in federal court, a new set of metrics has been instituted to reflect an agency retrofitted as an intelligence-gathering organization. Evidence of this shift can be seen in FBI director Mueller’s periodic “accountability” videoconferences, known as “Strategy Performance Sessions,” which are patterned after the NYPD’s CompStat initiative. Top officials in each FBI field office brief Mueller on a series of intelligence-driven “performance indicators,” such as the number of “sophisticated investigations” employing wiretaps or surveillance, the number of informants deployed in the field, and the number of terrorist threats disrupted. The FBI has also adopted the intelligence community’s practice of compiling raw field data into “information reports,” which are disseminated to law enforcement and are based on unvetted information that can amount to nothing more than speculation or rumor.

Whereas the new intelligence apparatus has increased the scope of the FBI’s work, other regulations have lowered the burden of proof necessary to launch an investigation. In 2008, the DOJ’s Guidelines for Domestic FBI Operations was revised under Attorney General Michael Mukasey. In this new version the FBI no longer has to demonstrate a “predicate” to an investigation, effectively giving the agency the power to spy on whomever it wishes, for however long it wishes, even if that individual has never committed a crime or, more important, is not even suspected of one. According to data released by the DOJ, in the first four months after these rules were instituted, agents launched 11,667 such low-level inquiries, known as “assessments.” (The Justice Department is currently working on another revision of the FBI’s internal guidelines, and the rules governing assessments are expected to be loosened further.)

Although the FBI’s operational rules explicitly ban profiling solely on the basis of race, they do not forbid using religion or national origin to target suspects. Agents can spy on anyone “reasonably believed to be associated with a particular criminal or terrorist element of an ethnic community,” to track “ethnic-oriented businesses and other facilities” if “members of certain terrorist organizations live within a certain concentrated community of the same ethnicity.” The Brennan Center for Justice at New York University’s law school summed up the practices by saying that the guidelines “envision an FBI that vacuums up all the information made available to it by permissive investigative rules, disseminates the information to other government agencies, and retains it indefinitely.”