The journey of a Federal Bureau of Investigation (FBI) Special Agent begins by swearing the oath that “I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter.” This oath reflects the enormous law enforcement powers granted to the FBI by the nation’s citizens via their elected representatives. While the FBI is often called upon to use their granted law enforcement powers to protect civil liberties, it is equally important for the FBI to restrain the use of these powers to protect civil liberties, because even the announcement of the potential use of these powers may itself be an infringement on civil liberties.
The posit of this exposition is to provide information relevant to the considerations that must be taken when the federal government weighs in on issues concerning the protection of civil rights and addressing potential violent acts that violate federal laws. It is based on the information provided by the Department of Justice (DOJ) and the National School Board Association (NSBA) as cited and referenced below.
On Oct. 4, 2021, Attorney General Merrick Garland issued a directive tasking the FBI to engage in activity that could potentially infringe on the constitutionally protected civil liberties of citizens speaking out at local school boards. Subsequently, the DOJ issued a press release to further detail actions to be taken pursuant to the directive. Specifically, to “create a specialized training program and guidance” to “help school board members and other potential victims understand the type of behavior that constitutes threats, how to report threatening conduct to the appropriate law enforcement agencies, and how to capture and preserve evidence of threatening conduct to aid in the investigation and prosecution of these crimes.”
The DOJ provides specific and clear guidance to the FBI on the matter of protection of civil liberties in the Domestic Investigations and Operations Guide (DIOG). FBI special agents are required to be thoroughly familiar with the DIOG, and its importance is illustrated through mandatory annual legal training provided by FBI Division Counsels. A publicly available declassified version of the DIOG is referenced below to illustrate the potential infringement of civil liberties by the DOJ and the FBI.
Section 4 of the unclassified DIOG titled “Privacy and Civil Liberties, and Least Intrusive Methods” lays out several pertinent principles:
Protecting the public includes protecting their rights and liberties. FBI investigative activity is premised upon the fundamental duty of government to protect the public, which must be performed with care to protect individual rights and to ensure that investigations are confined to matters of legitimate government interest.
Only investigate for a proper purpose. All FBI investigative activity must have an authorized law enforcement, national security, or foreign intelligence purpose.
Employ the least intrusive means that do not otherwise compromise FBI operations. Assuming a lawful intelligence or evidence collection objective, i.e., an authorized purpose, strongly consider the method (technique) employed to achieve that objective is the least intrusive available (particularly if there is a potential to interfere with protected speech and association, damage someone’s reputation, intrude on privacy, or interfere with the sovereignty of foreign governments) while still being operationally sound and effective.
DIOG further identifies “one of the most important safeguards is the one that is intended to ensure FBI employees respect the constitutional rights of Americans is the threshold requirement that all investigative activities be conducted for an authorized purpose.” DIOG also stresses that “simply stating such a purpose, however, is not sufficient to ensure compliance with this requirement.”
One example provided within the DIOG concerns the First Amendment right to freely assemble and petition the government for redress and grievances. The DIOG states that “it is important to understand how the ‘authorized purpose’ requirement and these constitutional limitations relate to one another.” The example identifies individuals or groups who communicate with each other or with members of the public in any form in pursuit of social or political causes, such as government actions. The DIOG stresses, “No investigative activity may be conducted for the sole purpose of monitoring the exercise of these rights.”
The cited DOJ directive alleged a “disturbing spike in harassment, intimidation, and threats of violence against school administrators.” The directive did not provide any specific examples of this alleged “disturbing spike,” which, if included, would have aided in the credibility of the directive. However, Garland did give specific directions to the FBI, in that they are “working with the United States Attorney to convene meetings with federal, state, local, tribal, and territorial leaders in each federal district within 30 days.” According to Garland, “the meetings will facilitate discussion of strategies for addressing threats against school administrators, board members, teachers, and staff, and will open dedicated lines of communication for threat reporting, assessment, and response.” Again, the Garland directive did not provide even one example of violation of federal law to support these actions, but gives specific direction to the FBI to take action.
The word “training” is not present in the directive, but was included in the DOJ press release concerning the directive. Training is the action of teaching a particular skill. Training pursuant to the DOJ directive would effectively subcontract the investigative actions of the FBI, which would put the receiving entities under the same constitutional restrictions. The creation of a federal task force implies a set of federal collection requirements would be put forth directing law enforcement partners to collect information and evidence on behalf of the FBI. The DOJ press release states school board members would be trained to “collect and preserve evidence.” While the FBI often provides demonstrations to the public, training of how to collect and preserve evidence has been traditionally limited to law enforcement personnel due to the importance of maintaining the integrity of the evidence collected. These actions subcontract the investigative powers of the FBI and could not be seen as the “least intrusive methods” referenced above.
On Oct. 21, 2021, Garland testified before the House Judiciary Committee at a Justice Department oversight hearing. In response to a question concerning a Sept. 29, 2021 letter from the NSBA and its relevancy to the DOJ directive, Garland stated, “Obviously the letter, which was public and asked for assistance from the Justice Department, was brought to our attention and it’s a relevant factor.”  He further advised he had no conversations with the White House concerning the NSBA letter, but it’s possible DOJ staff may have had discussions.
The aforementioned letter from the NSBA requested “federal assistance to stop threats and acts of violence against public schoolchildren, public school board members, and other public school district officials and educators.” This letter, if received by any FBI special agent, would have to be assessed as being credible and if a federal violation described within has occurred. This FBI special agent and his/her supervisor would utilize the DIOG to ensure the FBI was not violating policy, guidance, law, or the Constitution before any action is taken in response.
The NSBA letter’s first example concerns an “individual arrested in Illinois for aggravated battery and disorderly conduct during a school board meeting.” According to the news article cited by the NSBA, the individual was involved in a physical altercation while being removed from the school board meeting. The individual was escorted out of the meeting and later arrested at his home. As this incident did not involve a violation of federal law and was already being addressed by local law enforcement, no action by the FBI would be warranted.
The next two examples were “an individual yelled a Nazi salute in protest to masking requirements” and “another individual prompted the board to call recess because of opposition to critical race theory.” Even a first-year law student knows both of these examples involve constitutionally protected activity and neither could be addressed by the FBI, nor even state or local law enforcement.
Another example cited “chaos” during a school board meeting in New Jersey. Review of the news article provided to support the allegation of “chaos” determined it was the result of attendees refusing to wear a mask, yelling, and name calling. Again, all constitutionally protected activities.
In all, the NSBA provided 16 examples of what they equate to “domestic terrorism” and requested the full weight of federal law enforcement to overtly review the matter and examine appropriate enforceable actions. A review of each cited example in the NSBA letter significantly failed to meet any violation of federal law, and only one cited example may result in a violation of state or local law.
The first 10 amendments of the U.S. Constitution, known as our Bill of Rights, define the very essence of our civil liberties as citizens, and it does not afford any power to government. In fact, the Bill of Rights specifically restricts the actions of government. The First Amendment states, among many things, the government cannot infringe nor restrict freedom of speech, freedom of assembly, or the right to petition the government for redress of grievances. The word “government” includes not only the federal but state and local governments. All elected and appointed government officials, even school board officials, serve according to the same Constitution. There is no emergency exemption, policy, rule, guidance, etc., that gives these officials any authority to undermine or strip away the civil liberties of the citizens they are charged to represent. Using harsh, foul, loud, or offensive language, even against elected and appointed officials, is protected by the U.S. Constitution, period and end of discussion. Furthermore, even threats of violence must be assessed by law enforcement to be credible and not based solely on interpretation. Just because someone “feels” threated by someone’s words or actions, such as a statement “you will pay for your actions against our children,” does not necessarily make a credible threat.
The credibility of threats can be best examined via the “Watts Test”. This test is based upon the U.S. Supreme Court case Watts v. United States [394 U.S. 705 (1969)]. The case examined the specific statements in 1966 of antiwar protester Robert Watts. When he was summoned via the draft, he advised of his intent to not report. He further stated, “If they ever make me carry a rifle, the first man I get in my sights is LBJ,” referring to the president. Watts was arrested and convicted for making threats to the president. The U.S. Court of Appeals affirmed the conviction. The U.S. Supreme Court reviewed the matter, overruled the conviction, and determined Watts’ comments were not credible and classified them as “political hyperbole.” The Watts Test involves three factors, all of which must be met: The context of the statement or statements. The reaction of the recipients or listeners. And, whether the threat was conditional.
Specifically, the NSBA letter fails to provide any credible allegations of federal law violation and Garland’s directive could easily be argued as a violation of the Constitution and federal law as the proclamation imposes fear of government action against citizens for merely exercising their protected civil liberties. If the FBI follows the directive by taking actions mandated by Garland, then the FBI would be further adding to a budding constitutional crisis. The FBI’s execution of the directive would not only violate the Constitution, but the DOJ’s own guidance related to protection of civil liberties as articulated in the DIOG. Furthermore, execution of the directive would cause the FBI to potentially violate the Deprivation of Rights Under Color of Law (Title 18 Section 242), which makes it a crime for any person acting under color of law to willfully deprive a person of a right or privilege protected by the Constitution or laws of the United States. Those Color of Law violations would equally apply to state and local law enforcement actions taken whether on their own or at the behest of the DOJ and FBI.
The more appropriate avenue for Attorney General Garland and the FBI director would be to educate others on the roles and responsibilities of the federal government under the restrictions of the Constitution. Remind the public the FBI is not an emergency response organization. If someone has information of an active or imminent threat of criminal violence, they should call 911. If they have information that a federal law has been violated, they can report it to the FBI where it will be assessed for credibility. Finally, emphasize the primary role of the FBI is to “protect and defend the Constitution” and to ensure any actions taken do not infringe upon civil liberties.
Attorney General Garland should rescind the directive and not allow the DOJ nor FBI to engage in activities that could potentially infringe upon the civil liberties exercised by citizens at local school board meetings. Regardless, the FBI director should have a candid conversation with the attorney general about the dangers of violating the DIOG, the law, and the Constitution via directed actions. Perhaps the FBI director should invite the attorney general to attend the annual legal training provided to FBI agents by their local division counsels.
The views expressed here are the writer’s and are not necessarily endorsed by Homeland Security Today, which welcomes a broad range of viewpoints in support of securing our homeland. To submit a piece for consideration, email email@example.com.