The FBI recently relaxed guidelines it adopted seven years ago to check excessive infiltration and surveillance of domestic political groups. The old guidelines were a direct yet modest response to disclosures that the FBI engaged in widespread spying on civil rights, anti-war, and other political groups during the 1960s and 1970s.
Under the old guidelines political and other domestic groups and organizations remained subject to covert forms of investigation - surveillance, infiltration, use of informers - but these techniques could be used only if there were specific facts pointing to actual or planned violence, and they could not be used at all during the preliminary stages of an investigation.
Under the new, relaxed guidelines the FBI is permitted to rely on covert forms of investigation if a group or organization merely advocates political or social change through force or violence, and it may use these investigative techniques even in the preliminary stages of an investigaion.
The new guidelines are not a complete reversal. They retain the requirement that there be an investigation - a mere hunch that a group is prone to violence is not enough - but they unmistakably make it easier for federal agents to deceptively investigate domestic groups which endorse change through violence.
Why the switch?
In a press statement Attorney General William French Smith said the old guidelines needed revision because they chilled the FBI from aggressively investigating violence-prone groups. FBI director William Webster cited the example of the May 19 Coalition whose members were accused of triple murder and robbery in the hijacking of a Brink's truck in New York last year. Webster said the old guidelines made federal agents reluctant to investigate this and other such groups.
It is difficult to evaluate this explanation. In law enforcement as in military matters, there may be facts which are not or should not be fully disclosed to the public. Yet without more information (and there was no hint that there was more information) the explanation seems implausible on its face. The old guidelines were just too modest and the FBI is simply too sturdy to believe that the rules were responsible for any investigative lapses.
We may also wonder whether there really are very many violence-prone, political-activist groups left to worry about. Again, perhaps we do not have all of the facts but, compared to the recent past, the landscape seems remarkably serene.
No, the more likely reason for the change is the Reagan administration's reflexive, ideological commitment to controlling ideas it regards as dangerous.
This is the same administration that has changed the government's classification system to keep more secrets, that has ordered expanded use of secrecy agreements and lie detectors to control government employees, that has invoked export control laws to censor and intimidate scientists, and that has ordered two Canadian films, one on acid rain and the other on nuclear war, to be labeled as political propaganda.
On the merits some or even all of the administration's actions may be justifiable. But available evidence suggests these were not decisions on the merits. They were ideological statements. When the administration was pressed to say why it changed the classification system in favor of more secrecy, for example, it did not point to the compromise of any sensitive information under the old rules. It offered only the feeble explanation that the new rules were needed to clarify ambiguities.
So, too, with the change in the FBI guidelines. Maybe the FBI should have an easier time in initiating covert investigations against violence-prone groups. We do know that certain crimes - vice crimes, bribery, tax evasion, conspiracy - cannot be dealt with in the conventional, passive-reactive way. These crimes are invisible, lack complaining witnesses, or spring full blown from secret criminal preparations. They can only be policed through some form of affirmative deception and infiltration.
Yet we also know that affirmative deception and infiltration techniques risk serious invasions of privacy, smear the innocent, operate to instigate crime, and require considerable police resources. We know, too, that they present the special danger of distorting and muffling political debate when applied to political groups.
In this regard the controversy surrounding ABSCAM is particularly instructive. By conventional measures ABSCAM was quite a success. The investigation snared several corrupt congressmen and all who were indicted were convicted. On closer inspection, though, the results did not justify the costs. The undercover operation relied on operatives as unsavory as any of the defendants, some of the techniques smacked of instigation, the scheme made targets of the innocent as well as the guilty, and the actual wrongdoers appeared as easy prey, more stupid than evil.
In all cases, therefore, we must ask whether deceptive and covert techniques are worth the costs and, if so, as to what crimes, under what circumstances, and with what controls. In relaxing the FBI guidelines, the chief disappointment is that the Reagan administration did not seem to grapple with these complex and subtle questions.
Experience teaches us that thorny policy choices - whether broadening FBI spying on political groups or restricting access to government information - are best arrived at through open debate and after careful, thoughtful reflection.