Breach of Law, Breach of Security – Interview with Michael German

Michael German is a former 16-year special agent at the Federal Bureau of Investigation. During his time at the FBI, he worked as an undercover agent who successfully unraveled two terrorism plots by two domestic extremist groups. He left the agency in protest to the mismanagement and later, deliberate cover up of a counterterrorism investigation in Tampa, Florida. He is currently a Senior Fellow at Global and a National Security Legal Counsel at the American Civil Liberties Union (ACLU).
MFI recently had a chance to sit down with Mr. German to talk about his latest book “Thinking Like a Terrorist: Insights of a Former FBI Undercover Agent” and his views on the relationship between the rule of law and national security.

By Alejandro J. Beutel
Minaret of Freedom Institute

1. Can you start off with a brief overview of the book and what exactly inspired it?
Sure. First thing I should say that the book is my personal opinion and is not endorsed by the ACLU. I wrote it before I joined the ACLU. Basically the book started when I was assigned to work undercover [for the FBI] with a domestic terrorist organization. What I found when I first got involved [in the case] was that what I was taught by these terrorists was much different from what I read in any textbook or what I learned in the FBI. I learned that the government had very little knowledge about what these terrorists were like. So I started teaching within the FBI to make the agency recognize that this was a very different threat than was assumed.
2. In the book you speak of taking a law enforcement approach as opposed to a counterintelligence approach. Can you explain the differences between these two approaches and what the ramifications are for our civil liberties in America, particularly on issues directly impacting the American Muslim community? Which one would be more beneficial in your view?

The way I worked counterterrorism was as a criminal investigator using law enforcement techniques to gather evidence used to prosecute terrorists. The failure came on 9/11. One of the mistakes everyone made was when the administration said there was not enough actionable intelligence to prevent the attacks. There was this idea that ‘only if we had been able to collect more intelligence we would have been able to stop the attacks’ but in fact that’s false. The 9/11 Commission in fact proves that [notion is false] because if there had not been enough intelligence, the report would have only five pages long, but it is five hundred pages long. There was quite a bit of intelligence gathered. They simply did not manage it properly and put it to work.
A big problem with intelligence work as opposed to law enforcement is the term ‘intelligence.’ Intelligence is information and that information can be true or false. James Pavitt who was the CIA’s [Deputy] Director for Operations once said, “Intelligence can be right only fifty percent of the time” which means you can flip a coin and be right only as often as your intelligence is right. Evidence on the other hand is what is used in court and it is defined as ‘something that proves the truth or falsity of any factual proposition.’ There is some truth to evidence which is much more valuable to investigators and intelligence agents because they rely on something that has some factual validity.
The problem with intelligence collection from a civil liberties standpoint, affecting the Muslim community, is it gathers information with very intrusive tools. Whether or not that information is relevant to anybody’s misconduct is questionable. With a law enforcement purpose you have to rely on actual evidence, which is the purpose of the “probable cause” standard
within the Bill of Rights. This standard requires the government to have reason to believe somebody is doing something wrong before it can act and it is designed to protect peoples’ rights.
3. Shortly after the attacks, then-Attorney General John Ashcroft immediately profiled 5,000 people of Muslim and Middle Eastern background and later instituted the NSEERS program. Is this an example of what would be an attempt at a counterintelligence approach that has had a massive impact on civil liberties?

Absolutely. The mass arrests of immigrants after 9/11, NSA warrantless wiretapping program, all of these civil liberties issues regarding the Patriot Act, again come from the idea that the more information we have the more likely we will get the bad guys when in fact it’s the opposite. When make the haystack bigger it’s only harder to find those needles. Whereas if you start from known bad guys it will be much easier to find the other ones by limiting it to people who really you are reasonably suspicious about. Think about the costs and manpower that’s put into these collection programs, and what’s come out of them? Very little. A recent report by Syracuse University
says that 87% of FBI international terrorism cases referred for prosecution are declined by the Department of Justice. That number has gone up since 9/11 while the number of prosecutions has gone down since then.
There are 40,000 people on the “No-Fly List” and at the National Counter Terrorism Center there are 400,000 on its “Watch List.” Yet how many people are arrested? There are only a few hundred prosecutions in the United States for terrorism and a few hundred prisoners at Guantanamo. On the fifth anniversary of 9/11, CIA director Michael Hayden boasted that 5,000 terrorists were captured or killed since the beginning of the ‘War on Terrorism.’ This shows that something is wrong. Either the watch lists are bloated with people that haven’t done anything wrong or we haven’t done a good job of finding the terrorists.
4. You describe different types of terrorists in the book, essentially dividing them between ‘legitimately motivated’ and ‘extremist’ terrorists. Where does Al-Qaida fit in?

It’s a difficult question. When I talk about ‘legitimately motivated’ terrorists, I don’t suggest that terrorism, itself is legitimate, but simply that there is some political justification for the political conflict taking place. By maintaining the word terrorist I seek to imply that their activities are criminal and improper. Terrorism is always illegitimate and Al-Qaida never had significant popular support for its mission. There certainly were legitimate political conflicts in the Middle East and Al-Qaida exploited those conflicts. Some of the extra legal actions that US government has taken in the global war on terrorism have created some political legitimacy which moves them up the scale toward a more legitimately motivated position and that is what is troubling to me.
When you do things like extraordinary rendition, indefinite detention at Guantanamo and secret prisons, those things are real political problems and real legal problems. When the government is engaging in extralegal conduct it creates a political issue. By creating those political issues, we have moved Al-Qaida up the scale of legitimacy, which is really dangerous because that enables them to recruit. If a reasonable person can say that something Al-Qaida is saying is, in fact, reasonable, it is much easier to fall under their sway. That’s what I try to get at in that book – that the government should respond in a lawful manner because otherwise you give the terrorist a hand in his recruiting.
5. Another concept you speak about in book in the last chapter entitled ‘Our Constitutional Shield Against Terrorism’ is the idea of an ‘efficient response to terrorism’. You say that the Constitution is an efficient response. As legal counsel to the ACLU on national security affairs, what is your opinion of the PATRIOT Act, the NSA wiretapping and racial profiling?  I would like to go a step further and ask you if you believe the invasion of Iraq was also an inefficient response to terrorism.

In the last chapter of the book, I try to explain that our Constitution is not our weakness, but our source of strength. One of the important things to remember is that the Constitution was written by revolutionaries, people who overthrew what was then the superpower of the time and established their own country. When they were building this new country, they wanted to make it revolution-proof. By providing that the government could not act against people for speaking out, unless they were actually doing something illegal by using violence to get their the way for instance, this forces the government to be efficient.

The government would not be able to waste time with people who’s political views it didn’t like, but instead could focus on people whose behavior was inappropriate. This is the same with the Fourth Amendment, it is not something that is handcuffing law enforcement officers, it helps them do their job more efficiently and effectively by making them focus on people they have probable cause to believe have done something wrong. That kind of efficiency is necessary in an ideological war – that is what the war on terrorism really is. It is more about winning hearts and minds than winning militarily on a battlefield.
I’m no fan of Saddam Hussein and I shed no tears when he was deposed, but if we’re looking at Iraq as a part of the War on Terrorism, it was a terribly inefficient response. There was a terrible lack of substantial justification that has inevitably played into the terrorists’ hands. The amount of lives lost in Iraq is something aiding the terrorists’ recruiting. When your counterterrorism measures are creating more terrorists than they’re stopping, that’s a problem.
6. What is your basic outline of a strategy against Al-Qaida and other global terrorist networks?

Treat them as criminals. We shouldn’t be worrying about someone who is completely on board with their extreme political and religious beliefs, so long as they are not engaging in violence. Treating terrorists as criminals is extremely important. What I found working inside terrorist groups is that is very hard for a terrorist leader to convince somebody to commit violence. They will do so, only when they are painted into a corner and they feel they have no alternative. As long as the government recognizes the number of people committing these terrorist acts is very small and focuses on punishing only those [violent] people, everybody will be better off.
If you read what the terrorists write, you will see that the thing they fear most is being called a criminal. They realize that if they are prosecuted as criminals it will be very hard for them to maintain any legitimacy in their community, even among the people who believe in their ideology. We can do that internationally – including Muslim countries – by building international institutions that allow police officers from different countries can work together in a transparent, open system and everyone can be satisfied that justice is being done. In my experience I have found that even the most ideologically convinced supporters of these terrorist groups are turned off once they see the criminal activity being committed. Once you convince your ideological enemies that terrorism is illegitimate, then you can build international support to stop terrorism.


Alejandro Beutel is program assistant for the Minaret of Freedom Institute with expertise in religious freedom, democratization and security issues.






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