Welcome to the Brennan Center at nyu school of law. I am your moderator i am a journalist at the atlantic and a staff writer in the ids section. The Brennan Center is a nonprofit im sorry nonpartisan that reforms and revitalizes when necessary to defend the systems of democracy and justice. You can keep up with their work online or follow them on facebook or twitter and listen to their podcast. One second. Sorry. Tonight we are hosting one of our own mike german who is a fellow with the Liberty National security programmer he focuses on Law Enforcement and intelligence oversight and reform. He used to work at the aclu for National Security and privacy and before that serve 16 years as an fbi special agent with domestic terrorism and covert operations and discussing his book speaking like a terrorist im sorry his second book that was his first book you should also read disrupt and discredit and divide how the new fbi damages our democracy. Since 9 11 it has transformed itself to be famous for prosecuting organized crime but a secret agency please welcome mike german. [applause] so we will start with a question some people may know but why did you go from being an fbi agent to aclu quick. Just what everybody does. [laughter] and to be fair i was doing policy counsel work in the legislative office. I actually had a friend from college who knew me when i was in college and to be an fbi agent and we met up after i started working at the aclu and said i never could have purchased land is pictured you working at the aclu yes i never pictured the government would have a torture policy. [laughter] so i see a lot of those changes that are happening within the Justice Department within the fbi were putting at risk that i joined the fbi to protect and the aclu was doing great work then to address that so it seemed like a great place to go and i cant believe they let me come. Speaking to that tell me about the Political Climate when you join the fbi and how when you left. I joined the fbi straight out of law school 1988 and it was when there was a big hiring phase is a very small agency only 12000 around the world. So growing up wanting to be fbi agent is always will they be hiring . So there was a period of time where the savings and loans were deregulated so they were investing in get rich quick schemes and the bottom fell out in the back then the Justice Department used to prosecute people so there was a huge hiring to work on the savings and loan fraud and thats how i got hired. You hinted at this be referred as a small agency which i think may come as a surprise to the audience but you mention in your book its actually smaller than the nypd. Correct. Obviously they serve a city of millions of people but the fbi is responsible for a country of 300 million. And only 12000 of those 30000 employees are actually agents and they are spread over 60 field offices that means a legal at a show attache offices abroad so for the impact they have on our society is incredibly small. It goes back to the origins and what was originally meant to do. Can you talk about that original mission so is it your view they strayed from it and wasnt necessary quick. The fbi was created through executive fiat the attorney general at the time Charles Bonaparte went to the Justice Department to have its own investigators to help work the cases and went to congress seeking the authority to hire these investigators in Congress Said no. There is a lot of expression they were afraid of having a federal Police Agency to spy on average citizens. So they rejected this proposal. So in congress adjourned president roosevelt gave the attorney general the authority to just hire the agents. [laughter] and by the Time Congress came back the agents were hired and there was a prominent story about corruption and president roosevelt said is it just that they are trying to protect themselves and change the Political Climate in a drastic way so with the attorney generals promise he would keep the agency and check they went ahead and let it go forward. Another lesson how washington manipulates politic. You said it was a misunderstanding that distorted the fbis approach to the mission and what do you mean by that quick. When Teddy Roosevelt started the fbi that would hold the most powerful to account corrupt officials, Business People but very quickly after that in the approach to world war i the government wanted them to be involved in more espionage like activities to encounter the threat from germans and that grant of authority open the door to spying on people there were no longer concerned of who is doing harm but then those thoughts were around journalists and universities of centers of thought and those were in the business of spreading ideas rather than committing crime and they labeled these people radicals because they were all seeking radical change to the establishment whether the financial or government establishment. That concept of targeting radicals has to have other means to go after them with something that really appealed to a Young J Edgar hoover who that became the director of the radical division and that concept those that are engaging in violence are the problem but those spreading ideas that might lead to violence is what this concept was. After the palmer raids there was abuse of these authorities so there was reestablishing the fbi as an agency and they said no we will have a Law Enforcement mission that will stop the political spying than that only last up until the runup of world war ii the National Security threats led to an expansion of the mandate and again they revived this concept after hoover saw them as a problem there were not a lot of communist so wanted to expand that with socialists and that expanded to the antiwar left so we might as well have a program to examine them in from the concept of radicalization in the spread of ideas and violence. Talk how that approach relates to modern day because im sure that sounds familiar to the audience. It was interesting when i was working undercover with the terrorist groups basically i was told where jeans and a tshirt. I was desperate with information how to work with these groups and what they tried to accomplish the basic labor to schools that argued its the product of a diseased mind and was a mental defect psychologist and psychiatrist did studies to find this mental feedback that could be useful to find a cure but also to identify people with the defect before they isolate them from the community that its a label that you cannot understand that segment without understanding all of the Political Violence in that situation and in context so that was silly to study terrorism and by the nineties but these are rational people engaged in horrific activity but after 9 11 they could not bring up those defects imagines a mental defect but its outside the scope so there is no diagnosis available we just know that when we see it and if you look at those radicalization models they identify First Amendment protected activities and those associations in political activity that is at danger down the radicalization pathways so the way the government put it is they cannot wait until somebody blew something up and that provided a blueprint of who was left so according to those documents from conversion to g hot just converting to islam what is the first step and then adopting to go to mosque and joining the social group and getting involved in political activity with other groups are all indicators it wasnt that surprising there was that much surveillance of the muslim communities for no particular reason. I hope nobody here is engaged in political activity. It if you are already in a university thats radicalization. Two strikes. You write the fbi appears to be immune to traditional efforts of oversight. Can you explain. It poses a difficult problem because it is an essential agency in many ways. There are real criminals would prey upon those and we need a force that is effectively too old to address that problem we need an agency that can work with corruption so we have to give this agency the tools that can be abused because they can be seen they also want to make sure to protect the communities so thats difficult as a problem and then to give them more authority and room essay obviously it was how dysfunctional it was a bed to see whats really wrong with it so it does present a problem in the best case scenario. But also we have seen significantly that fbi officials to Tell Congress things that sound nice that are not necessarily true about using its own authorities. And when the secretive agency can mislead the overseers its very hard to understand of the abuse. The perfect example one of the first things i worked on at the aclu was foia request and privacy act request in the aftermath of 9 11 they were being spied on so the aclu help them to do a nice nationwide privacy act request so turn sure enough they were engaged in spying in pennsylvania for the center of peace and justice. And that came out that was respected more in congress wanted to know so i said its all part of a different investigation. There were some muslim terrace i just happened to be at this rally we werent actually spying on the center. That turned out to be entirely false. So that makes it very difficult in addition to its expansive powers now a bigger cloak of secrecy. When theres that kind of secrecy then you manipulate what facts will come out to the publics attention and what doesnt and that makes it very hard for members of congress with an interest in reform you cannot make that happen because so much a secret you describe them fbi is a Lawless Agency that may given a surprise as a former agent but what do you mean by lawless quick. I use that because it technically is. When it was created in 19 oh eight it didnt have a charter and Congress Said this is what it should do and this is how it should do it. That just runs through executive fiat the president tells them what to do and they did it. Those limitations did not exist until after J Edgar Hoover died. The only comprehensive examination of our Intelligence Agency to find that abuse the effort was to limit those powers but instead the attorney general step forward to say i will issue guidelines and just like those reforms were intended with no reasonable indication of activity but because those attorney general guidelines they can modify them and most do and they have moved somewhat stronger and after 9 11 ashcroft significantly loose and the guidelines and then again in 2008 under kc they were extensively rewritten to the point where now under the guidelines they can conduct an investigation with no factual basis that anybody has committed a crime. These can be very intrusive not just physical surveillance but subpoenas for telephone records subscriber information recruitment and tasking of informants to recruit somebody to infiltrate your Group Without believing anybody has done anything wrong. They are not bound by the law. Fbi leadership is invoked through diversity but the bureau seems to struggle more with recruiting to diversify their staff than in the past why is that quick. When i joined the fbi 198820 years after J Edgar Hoover died and they spoke to the need to diversify the agency and every year it never approached the rest of america but you could see improvement. That was not easy. When i was a young age and there was a classaction suit by women agents and another by latino agents and black agents. So their word discrimination problems inside the agency but you can see there was some progress being made and i believe believe the lawsuits were forcing more progress to be made. After 9 11 we saw a retrenchment and i believe thats because of the shift of a National Security focus in your away from Law Enforcement you can no longer prove the law but they might be a National Security threat its very easy and human nature to see people who have a different Life Experience to be dangerous and a risk if an agency is overwhelmingly white for the normal security protocol thats applied to an applicant to look more critically than someone who doesnt look like the rest of the fbi and they go through case studies of agents who came under suspicion because of their religion or National Origin or they were born in a foreign country when there are small problems those are magnified the ability to disrupt is the concept they pull from the disruption strategy where they feel even if you cant prove somebody commits a crime you have the authority to disrupt their activities even though they cant prove somebody is a spy the easiest way to disrupt them is get them out than if they are a spy then we say tough luck. You got into that a little bit but how is the bureaus lack of diversity affects how it approaches the mission quick. For any Law Enforcement agency to not be representative of the communities at polices is a problem its easy to look suspiciously as someone engaged in normal behavior for that community but when the fbi has the tools it has it can do real damage so having that Diverse Workforce is essential to the eventual management of the agency but more so than what we have seen in those case studies i talk about in the book involve activities that start off with the purpose but then long after its appropriate that it should be obvious on its face with that investigation and it takes somebody in the agency and having robust guidelines and the courage to stand up to say i know this community and whats going on and what youre doing and you need to stop and agents i know who make that stand to the detriment of their own careers. You Say Something thats relevant to your case but describe how the loopholes of racial and religious profiling swallows the rules themselves. Because of a lot of good work of many civil Rights Groups in the nineties there was a lot of research of racial profiling that even if you put aside discrimination with the negative impact on the communities it was an effective Law Enforcement and they do a good job of educating Law Enforcement and i was proud to be in the fbi with the vanguard of that Law Enforcement instruction. But it became clear we needed strong guidelines so attorney general ashcroft and president bush said they were interested to put this together and did except 9 11 intervened so there is a big cut out for National Security so basically the message sent to Law Enforcement is this is a bad technique for quit doesnt work it alienates communities but we will keep it for the most important investigations so what Law Enforcement learned as i hear what you say but what youre really telling us using it in the investigation. So in 2014 they were modified again and in the meantime the fbi had to pull that actually had a Mapping Program across the United States the fbi was using census data by race and ethnicity to track ethnic behaviors at the aclu we tried to use for you to get what they were but unfortunately the courts would not let us have them and ethnic facilities im not sure what that is but obvious racial profiling they were not drawing maps because they liked pretty pictures but they would treat people differently from the other side of the line and in 2014 when the Obama Administration modified the ashcroft guidelines actually authorized this program for go so it sends the exact wrong message to Law Enforcement about the use of racial profiling. Ethnic activities will stick with me for a while. You right there are systemic problems make the bureau a threat to the very democracy its intended to serve. Can you elaborate quick. First and foremost we have to have confidence there is a rule of law that applies to everyone equally in society and when we see the law is not applied equally and i joined during the savings and loan crisis those that were responsible held to account and to see that crisis in 2008 very few were held into account that has this cynicism with the fbi target certain groups not just Muslim Americans in the aftermath of 9 11 but eco terrorism as a number one threat related to Environmental Activism it was a fear your political opinion would put you at risk. So that kind of behavior undermines the rule of law and that confidence while at the same time as we talk about the fbi not being completely honest with congress. With cong. You already have and then present it to the court as if thats the original way youve collected information so the defendant and the judge and the jury would never know it was another tactic and had opportunity to challenge the tactic. Does america need a new Church Commission . Critically and its overdue. Its not just a look at the abuses. The governmen government invadir privacy is nothing to increase its just abusive and creates the problem it is just as vulnerable as the liberty is and we have to understand that. It becomes apparent now where we have 70 billion somehow the russian government came in and that old with our election and whether you believe that influenced