F.B.I. Faces No Legal Obstacles to Domestic Spying
In 1972, with public concern about government surveillance of the civil rights and antiwar movements near its peak, a closely divided Supreme Court refused to forbid the Army to monitor public political activities.

The majority quoted a lower court's assessment of the basic facts: "The information gathered is nothing more than a good newspaper reporter would be able to gather by attendance at public meetings and the clipping of articles from publications available on any newsstand."

With the substitution of the Internet for the newsstand, that is essentially what Attorney General John Ashcroft now proposes to allow the Federal Bureau of Investigation to do.

If the Supreme Court was unwilling to bar a similar practice in 1972, there is little reason to think a challenge would succeed today.

Indeed, the restrictions under which the F.B.I. has operated for three decades were self-imposed. Congressional pressure, lawsuits, scandals and a public outcry played a role in the bureau's vow to limit domestic surveillance to situations in which criminal conduct was suspected. But the restrictions were not enforceable in court and were grounded in what might be called constitutional values, rather than actual law.

Civil libertarians largely acknowledge that the Justice Department is free to revise its own guidelines, but they say that the knowledge that political activity is being monitored by the government will chill the kinds of unrestrained discussions that are central to American democracy, with no appreciable benefits.

"There is no Fourth Amendment constitutional problem with the government surfing the Web or going into a public space or attending a public event," said David D. Cole, a law professor at Georgetown University, referring to the constitutional limits on governmental intrusions. "But there are significant First Amendment concerns. There is a real cost to the openness of a free political society if every discussion group needs to be concerned that the F.B.I. is listening in on its public discussions or attending its public meetings."

That concern is particularly acute in mosques and other religious settings, said Jason Erb of the Council on American-Islamic Relations. "It starts to erode some of the trust and good will that exists in these institutions if you're afraid they have been infiltrated by an undercover agent," Mr. Erb said.

James X. Dempsey, the deputy director of the Center for Democracy and Technology, said that monitoring of political activity would not have uncovered the perpetrators of the Sept. 11 attacks.

"Not a single one of the 19 guys, or 20 if you count Moussaoui, did anything overtly political," Mr. Dempsey said. "Not one of them said, `I support Palestinian rights' or `I hate America' in a public way."

But the new guidelines will, he said, have an inevitable impact on public debate. "Allowing people to freely and openly advocate, say, Palestinian rights in the hope of persuading others creates the crucial safety valve that keeps people from turning to violence to force change."
http://www.nytimes.com/2002/05/31/national/31ASSE.html?todaysheadlines