By Bob Barr
A little noticed, two-page Oct. 16 memorandum from Attorney General William Barr to all federal law enforcement and prosecution offices raises serious questions about whether the Trump administration is seeking to roll back fundamental civil liberties in order to counter “the threat of mass shootings.”
The memorandum itself is oddly worded; unusual, perhaps, for such a renowned wordsmith as Barr. For example, it speaks of the necessity for the government to “hone an efficient, effective and programmatic strategy to disrupt individuals who are mobilizing towards violence” (emphasis mine). It also employs medical terminology at several places; for example, noting the need to “triage” threatened violence.
The troubling, overarching theme of the document, is that the appropriate way to identify and head off mass shooters within the United States, is to use approaches similar to those employed by federal intelligence and national security agencies in thwarting acts of terrorism since 9/11. If so, this ought to raise a number of red flags, considering the abuses known to have taken place by the CIA and other federal agencies following those horrific attacks.
Moreover, a strategy premised on mimicking anti-terrorism tactics in domestic anti-crime enforcement activities risks neglecting the fact that a number of vital civil liberties guaranteed in the Bill of Rights do not apply equally to the array of powers available to government agencies when acting abroad in anti-terrorism and other national security matters; most notably, perhaps, the Fourth Amendment’s guarantees against unreasonable searches and seizures and warrantless mass surveillance.
Some of what the attorney general appears to be advocating is not new. For example, three months before the release of the Oct. 16 memo, in speaking to the International Conference on Cyber Security, Barr lamented the fact that private technology companies still are permitted to offer customers encryption so robust that federal agencies are unable to unlock it. In claiming that the federal government’s efforts to defend the nation’s security are seriously hampered by not having a lawfully mandated “backdoor” decryption key, Barr echoed a refrain by former FBI Director James Comey before he was fired by President Trump. In fact, efforts by federal law enforcement agencies to win such a backdoor decryption capability in federal law, goes back to the time I served in the House as a member of the Judiciary Committee in the late 1990s.
The attorney general also signed a data-sharing agreement with his U.K. counterpart that some worry will provide side-door access to electronic data on U.S. individuals without constitutional restrictions that would otherwise apply.
The memorandum’s references to mental health and other medical issues as possible indicators of predisposition to engage in mass murder, raises a possible link to another idea floating around federal government circles — “HARPA.”
HARPA is the acronym for the Health Advanced Research Projects Agency, which — so far as is known publicly — is not yet an authorized or funded federal initiative. It is noteworthy, however, that HARPA’s website and linked video trailers clearly anticipate it will be authorized by executive order and funded. The agency then would deploy federal resources to advance “health technology” and cure diseases such as “pancreatic cancer” by, among other things, partnering with the National Institutes of Health and, strangely, the Department of Defense.
The narrative on the HARPA webpage favorably compares the proposed health research agency to “DARPA” (Defense Advanced Research Projects Agency) as the “gold standard” for “accountability.” Such a preposterous assertion mischaracterizing one of the most secretive Defense Department components, should itself be a giant red flag for congressional oversight and public inquiry.
That the attorney general and the Department of Justice are focusing on identifying and thwarting future mass shooters, is laudable and timely. But the time for transparency, oversight and asking questions about just how such a strategy and attendant tactics are to be implemented, is before not after such far-reaching and potentially problematic steps are taken.