The FBI's "Disruption Strategy": Part I
Recently, The Intercept's Jenna McLaughlin discussed the Federal Bureau of Investigation's key metric for combating domestic and international terrorism activities.
In America, the Federal Bureau of Investigation (FBI) is the chief law enforcement agency that investigates terrorism activities. According to the FBI's 2015 End of Year Report, when counting successful interventions, the FBI has a category for activities that it has "disrupted."
In the section on “Performance Measures” in the FBI’s latest financial statement, the bureau reports 440 “terror disruptions” in the 12-month period ending on September 30, 2015. That’s compared to 214 in fiscal year 2014. And it’s more than three times the 2015 “target” of 125…
Reporters at The Intercept and others have found a large discrepancy between activities reported disrupted and people arrested for such activities.
But that number — 440 — is much higher than the number of arrests reported by the FBI. The Washington Post counted about 60 terror-related arrests in 2015; a study by George Washington University found 71 arrests related to the Islamic State from March 2014 to the end of 2015.
This numerical discrepancy suggests that the Bureau is disrupting activities and individuals without ever finding sufficient evidence to arrest such individuals or to bring formal criminal charges.
The ACLU & The FBI's Disruption Strategy
Reporters at the Intercept were unable to get any information about what constitutes a successful “disruption.” They also received no response from the FBI as to which activities the FBI and other intelligence agencies considered to be disruptive.
They were, however, able to glean the definition from a 2009 FBI document called the CounterTerrorism Program Guidance Baseline Collection Plan Administrative and Operational Guidance Document.
It was obtained by the American Civil Liberties Union (ACLU) pursuant to a records lawsuit using the Freedom of Information Act (FOIA). The FBI document where "Disruption Strategies" are discussed was first identified in a footnote by the ACLU in their report:Unleashed and Unaccountable: The FBI’s Unchecked Abuse of Authority.
The document that the ACLU successfully sued to obtain sheds light on what the Bureau means by disruption.
When Does The FBI Use A Disruption Strategy?
Disruption strategies are to be implemented, according to the guidance document, when sufficient evidence is lacking that someone is a threat; when agents do not have the grounds to continue an actual investigation according to internal guidelines; and when there is no way to bring formal criminal charges against an individual.
Disruption Strategies are to be used, according to the FBI's own CounterTerrorism Program Guidance Baseline Guidance Document when and:
If the risk to public safety is too great, or if all significant intelligence has been collected, and/or the threat is otherwise resolved, investigators may, with substantive desk coordination and concurrence, implement a disruption strategy.
According to the FBI's own internal guidelines in Section IV(V), a “Disruption Strategy” may be implemented when the investigation has closed, when the threat is over, and essentially, when there are no more legal, investigatory or constitutional means of continuing the investigation.
Disruption, then, seems to be a last resort used when the FBI's investigations lead to a dead-end. And it is a strategy to be deployed even when there is no threat.
What is Involved In A Disruption Strategy?
The FBI's Baseline Document includes several suggestions for Agents interested in launching a Disruption Strategy. The recommended activities include arrests, interviews, sting operations and recruitment as an FBI informant.
NOTE, the Baseline Document does not limit what activities the agents may use in a disruption campaign and instead sets a floor of permissible activities.
A successful strategy may employ a range of tools including arrests, interviews, or source-directed operations to effectively disrupt subject’s activities. Additionally, and when warranted, all subject interviews should specifically address the subject’s activities and potential recruitment as a source.
What is interesting to note about the suggested strategies is that these are strategies to be employed at precisely that juncture where there is no evidence to continue the investigation, to make an arrest or to escalate, legally, the surveillance of the individual.
Legal Implications of Investigatory Apparatuses That By Definition Are No Longer Part of an Investigation And Which Cannot Lead to Criminal Charges
These “Disruption strategies”, include sustained, covert and on-going intrusions into the privacy and movement of persons in the U.S. outside the scope of any official investigation meant to lead to a criminal charge impact fundamental rights guaranteed by the U.S. Constitution.
The question then is, what legal recourse does someone who is being subjected to a "Disruption Strategy” have?
The answer, effectively, appears to be none.
In fact, the Bureau seems to have designed a loophole that allows the Bureau to conduct extra-judicial campaigns that serve to punish individuals and violate their constitutional rights without ever having to answer for the activities in a United States courtroom or to provide notice to the individuals or their legal counsel.
Remember, that Agents are encouraged to arrest individuals and by extension disrupt their work, school and family life while fully aware that they cannot bring formal criminal charges.
If the FBI's disruption strategies include continuous harassment and surveillance of persons, including electronically, with no charges ever brought, what happens to constitutional guarantees designed to limit government intrusions into the lives of American residents?
Constitutional Guarantees: Liberty and Privacy
Since colonial times, the Bill of Rights more generally, and the 4th and 5th Amendments in particular, have been designed and interpreted to protect citizens from their governments. The 4th Amendment reads:
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
When subject to a disruption campaign, Americans are placed under constant surveillance and are likely to have their communications intercepted via StingRay technology. And this all occurs outside of the normal investigatory channels.
More importantly, as the FBI's own document states, these intrusions occur when there is no way to bring criminal charges. Therefore, the activities successfully avoid judicial scrutiny by never being brought to light in a courtroom.
Equally importantly, in the case of activists, "disruption strategies" can cause individuals to self-police their beliefs, activities and movements. Thereby successfully curtailing the legitimate 1st Amendment rights of Americans.
In addition to the 1st and 4th Amendment, the 5th Amendment is implicated in the FBI's disruption strategies. Fundamental rights are liberty interests, which fall into the categories of individual autonomy or privacy.
To the extent that “disruption strategies” used by the FBI curtail the liberty interests of individuals, the government would need to demonstrate a compelling and necessary interest.
This hurdle would be necessary to overcome if the government acknowledged, documented or was forced to litigate these practices. But by using disruption strategies outside of a criminal case, the investigatory techniques documented in the Baseline Guidance Document are designed to occur outside the scope of criminal investigations and DOJ cases.
As they are currently constituted they are never challenged, scrutinized or justified on the basis of a compelling governmental interest or otherwise.
Individuals and their attorneys are never formally placed on notice; and, there is no judicial review of the compelling government interest that justifies the use of potentially extrajudicial and extralegal investigatory tactics.
Like the No Fly List, individuals who end up subject to the FBI’s Disruption Strategies have no meaningful notice of their inclusion in the East-German-era strategy. There seems to be no mechanism by which someone can be removed from the category of “persons to be disrupted.”
Americans will be deprived of the freedom to live and will have their liberty curtailed without any legal recourse each and every time they become the target of an FBI's failed investigation efforts and turned over the "disruption" department.