It is based on my years of teaching constitutional "criminal procedure" to FBI agents and police officers from 1990 to 2003, and also based on my first-hand exposure and understanding of some of the pre- and post-9/11 failures:
--In the course of arguing the Holder v Humanitarian Law Project case in the Supreme Court, Georgetown Law Professor David Cole warned that the federal law against providing "material support" to U.S.-designated terrorist groups could be used to improperly target and prosecute a whole range of humanitarian, human rights and peace advocacy groups based on protected exercise of speech and other First Amendment rights.
However Cole failed in his arguments to overturn a few words in the Patriot Act that broadened this "material support" concept to encompass "expert advice and assistance" to "foreign terrorist organizations" as designated by the Secretary of State. (For more explanation, see: How Easy Is It for Peaceful People to Violate the Patriot Act?)
Protest Photo by Cheryl Biren, image processing by Rob Kall
Last June's Supreme Court decision, which essentially makes advocacy of peace and humanitarian issues illegal with respect to the 40 or so designated groups, was likely not something Congress intended when it hastily passed hundreds of pages of "Patriot Act" revisions.
All kinds of missionaries, fair-election proponents and humanitarian workers could be placed in jeopardy.
People like Three Cups of Tea author Greg Mortenson could be in trouble since he has had to meet with a variety of foreign country nationals in war zones to successfully formulate consensus to build schools for girls in Pakistan and Afghanistan.
So could former President Jimmy Carter who engages in pro-democracy efforts to monitor election fraud in many places in the world.
The paradox is that true non-government affiliated efforts aimed at furthering education, humanitarian assistance, free elections and non-violent conflict resolution in other parts of the world are widely recognized as more effective and beneficial than efforts controlled by the U.S. military and the U.S. State Department.
The simple fix would be a legislative revision of the few words regarding "expert advice and assistance" in the Patriot Act to clarify that Congress didn't intend to chill or hamper the free-speech rights of people involved in such non-governmental humanitarian, peace and pro-democracy groups by stretching the meaning of "material aid or resources" given to foreign terrorist organizations.
--The U.S. government's decision to go into "pre-emptive mode" against terrorism -- with the determination to prevent all future terrorist acts -- should be understood as a real "Mission Impossible" (and mission stupid).
The quixotic and unreachable goal of perfect security led to the immediate erosion of the Attorney General (AG) Guidelines that required varying levels of factual justification before targeting a domestic group. Those safeguards were established in the 1970s after the Church Committee exposed a wide range of abuses by law-enforcement and intelligence agencies.
Shortly after 9/11, Attorney General John Ashcroft began by loosening the old guidelines to allow FBI agents to go into churches, mosques and other public places.
The final nail in the coffin, laying to rest all of the old AG Guidelines, came when the Bush administration in one of its last official acts reduced the need to demonstrate some level of factual justification -- for all criminal, white-collar, violent crime and terrorism type cases -- to a new, very low standard.
In effect, that means the FBI has only to deny that they are targeting a group based solely on its exercise of First Amendment rights. Civil libertarians were aghast at the prospect of this total erasure of any real investigative guidelines but thought it better, knowing of Barack Obama's background as a constitutional lawyer, to bring it up with Bush's successor.
It should be noted that the demise of the old AG Guidelines came after Inspector General (IG) findings about the FBI serving hundreds of thousands of mistake-ridden and unjustified National Security Letters as well as finding a high percentage of compliance problems in the FBI's opening and handling of informants.