10 February 2004

Boiling Blood

This item at TalkLeft made my blood boil. The records request reflects considerable incompetence by the counterintelligence people involved in the "investigation." Let's pretend for the moment that requesting a list of attendees at an academic conference, or even a nonacademic conference with an academic element sponsored by a recognized institution of higher education and/or scholarship (such as, say, the American Enterprise Institute), does not implicate civil rights of anyone involved. The participants' rights are not involved; the audience's rights are not involved; the institution's rights are not involved; the sponsoring organizations' rights are not involved. Thus, we don't enter the quagmire of interpretation that one finds in the NAACP cases, which are among the most poorly written in all of First Amendment associational-freedom jurisprudence. See Louisiana v. NAACP, 366 U.S. 293 (1961); NAACP v. Alabama, 357 U.S. 449 (1958).

As unrealistic as that assumption is, it allows us to look at the substance of what was requested, and ask what reasonable counterintelligence purpose that might serve. TalkLeft described the subpoena this way:

The subpoena asks Drake University for all records relating to the November 15 conference, as well as information about leaders of the Drake University chapter of the National Lawyers Guild and the location of Guild offices and any annual reports since 2002. In addition, it asks for "all records of Drake University campus security reflecting any observations made of the November 15, 2003 meeting, including any records of persons in charge or control of the meeting, and any records of attendees of the meeting."

The impetus for this request appears to have been a demonstration the day after the conference at headquarters of the Iowa National Guard involving a dozen arrests of protestors—for misdemeanors. Frankly, the fact that no felony arrests were made strongly indicates that no information useful in a counterintelligence context will be present in the kind of records requested. Any individual who appears for the first time in that data who might, even theoretically, present another justification for interest will be better delineated in other data. Further, the probability that unique information not available from other sources—such as, say, post-arrest interviews and surveillance tapes at the demonstration—is vanishingly small. Finally, and most importantly, attempting to treat the conference in the first place as a potential counterintelligence information source says volumes about the FBI's competence in doing counterintelligence work not directly related to nation v. nation conflicts. J. Edgar Tutu (no relation of Desmond) must be smiling up from where he is now.