Should the Federal Bureau of Investigation (FBI) spy on mosques absent probable cause of a crime? Should the FBI participate in the creation of a Muslim registry? It would seem like answering "no" to both questions should be a prerequisite for being confirmed as FBI director. Yet, Christopher Wray declined to answer several variations of exactly those two questions and was still confirmed FBI director by a vote of 92 to 5.
Both the FBI and Trump have a troubling intolerance for dissent. Trump during his campaign called for widespread surveillance of mosques and the FBI already has confidential informants crawling throughout the Muslim community. Trump floated the idea of a Muslim registry and the FBI has a dark history of compiling information on people for exercising their First Amendment rights. As a result, any potential FBI director, especially one handpicked by Trump, needed to face questioning about their willingness to uphold the values of the First Amendment.
Wray did face several questions about his willingness to spy on the Muslim community, though the bulk of them came not during the televised hearing, but as Questions for the Record (QFRs), written questions submitted after the hearing.
Sen. Mazie Hirono (D-Hawaii) asked Wray if as FBI director he would go along with the creation of a Muslim registry. While Wray stated he would be faithful to the law and the Constitution, he said he did not "know enough about the specific proposal or plans that anyone is talking about[…]" to comment definitively. By comparison, when asked about a Muslim registry during his confirmation hearing for Attorney General, Jeff Sessions stated that he opposed a Muslim registry and it would "raise serious constitutional problems." (In her QFRs, Sen. Hirono indicated that Wray had said during the hearing he would not participate in a Muslim registry, but he plainly stated that he did not know enough to answer the question).
Sen. Patrick Leahy (D-VT) and Sen. Hirono both sent written questions to Wray asking about Trump's campaign trail calls for surveillance of mosques. Sen. Chris Coons (D-DE) submitted a question about surveillance of houses of worship more broadly. In all three cases, Wray declined to answer stating that he could not speculate about hypotheticals. To be clear, these were not open-ended questions that could be reasonably interpreted to include instances in which a house of worship was in fact involved in some type of criminal activity. Coons specifically asked Wray about surveillances of houses of worship when there is no "probable cause of criminal activity." Leahy specifically asked about "general surveillance of mosques unrelated to a specific, ongoing investigation."
The fact that Wray was able to sail through without serious backlash over his non-answers concerning the surveillance of mosques is in part due to the increasingly myopic fixation on all-things Russia to the exclusion of other issues. It is also, however, indicative of the extent to which singling out Muslims for suspicion has become normalized. While Trump campaigned on such programs, they existed in fact and enjoyed bipartisan support well before his election.
Since 9/11, the FBI has routinely engaged in sting operations against members of the Muslim community. According to a 2014 report from Human Rights Watch, many of these stings began as "virtual fishing expeditions, where the FBI had no basis to suspect a particular individual of a propensity to commit terrorist acts." The FBI paid confidential informants to infiltrate the Muslim community, including mosques, striking up conversations with strangers in order to ascertain their political views.
Infiltrators acted as agent provocateurs, came up with fake terror plots and suggested to others they participate in them. At times, these agent provocateurs have offered financial incentives to individuals to participate in these schemes. For example, James Cromitie, one of the Newburgh Four, was offered $250,000 by an FBI informant to participate in a plot involving planting bombs at a synagogue. Cromitie initially rejected the offer, but after he lost his job at Walmart reached out to the informant.
The singling out of Muslims as being inherently worthy of suspicion further feeds such repressive measures. With each FBI concocted terror plot making headlines as a foiled attack, the magnitude of the threat appears even greater, thus bolstering the stated raison d'être of the FBI.
It is not just the FBI who benefits from its self-perpetuating Islamophobia. Trump's revised Muslim ban executive order cited as pretext two "terror plots" involving refugees. Both examples were schemes dreamt up by undercover FBI agents or confidential informants acting as agent provocateurs. Whether Trump is even aware of this is beside the point, his agenda is emboldened by such plots.
The weakening of the Attorney General Guidelines has enabled this FBI surveillance. The Attorney Guidelines were issued, in lieu of a statutory charter, after the Church Committee documented systematic FBI abuse of civil liberties, and was meant to safeguard against future abuses. Leaving such policies to the whim of any given Attorney General had the predictable result; attorneys general who were particularly anti-civil libertarian helped to weaken them.
President George W. Bush's first Attorney General, John Ashcroft, changed the guidelines to allow FBI agents to attend meetings open to the public without disclosing their identity. Bush's third Attorney General, Michael Mukasey amended the guidelines to create an entirely new type of investigation -- assessments. Assessment are significant, because they require no factual basis to suspect their subject is involved in criminal activities or threatens national security. In conducting an assessment, the FBI can engage in extremely intrusive techniques, such as deploying confidential informants.
Sen. Hirono directly mentioned in a QFR the broad nature of these guidelines, including that they "allow race, religion, national origin, and First Amendment activity to be used as factors to justify scrutiny." She asked Wray if he thought they "strike the right balance between preventing crime and terror and protecting civil liberties." Wray's response was pitiful, yet unsurprising. He wrote:
I have not reviewed the Attorney General's Guidelines in recent years and am not up to speed on how those Guidelines are being followed presently. I, therefore, am not in a position to comment on whether any changes to the Guidelines should be considered.
That Wray did know enough about the operating guidelines for the job he hoped to fill did not stop the Senate Judiciary Committee from approving him unanimously. It also did not stop all, but five present members of the Senate from voting to confirm him.
The relatively uncontroversial nature of Wray's confirmation is telling. Generalized and suspicionless surveillance of any sort, nonetheless such surveillance based on religion, are not hypothetical situations that require speculation. They are blatantly unconstitutional policies. Unqualified rejection of them should be mandatory for anyone seeking to head the FBI. Perhaps, Trump's blatant bigotry meant Wray's milquetoast non-answers appear better than the worst imaginable scenario. Better than Trump isn't good enough though. While Trump made Islamophobia a central facet of his campaign, Trump's rise is very much the product of a toxic environment in which bipartisan policies normalized Islamophobia. That Wray's could decline to answer questions about deprivations of fundamental First Amendment freedoms and be confirmed with little scrutiny is yet another continuation of this trend.