The tweedy types at the ACLU are big on deep thinkers. John Jay, Thomas Jefferson, Thurgood Marshall all fit the bill. But not until Mike German asked for a job did the words of Sun Tzu so readily apply: “It is essential to seek out enemy agents who have come to conduct espionage against you. Give them instructions and care for them. Thus double agents are recruited and used. “ Then again, no one had to recruit German. He just got angry and walked in the door on his own.
German, 45, didn’t betray his country, as much as he betrayed his people. His people, in this case, were the mostly-arch-conservative employees of the Federal Bureau of Investigation with whom he’d worked almost all of his adult life. Before his investigation into a link between American Neo-Nazis and Islamic Terrorists uncovered illegal activity and turned German into a FBI whistleblower, he was an undercover agent—one of the very best domestic counter-terrorism experts the Bureau has ever produced.
And then, in what must have felt like an eye-blink, he wasn’t. He was stripped of his security clearances and sent packing and—after two years in the great anonymous cold—he decided to become that anathema of espionage, perhaps the only thing worse to a special agent than a card carrying member of the ACLU: one of their lawyers.
At the ACLU, German is technically a Senior Policy Council on National Security, but really it has become his job to watch the detectives. According to Caroline Fredrickson, director of the ACLU’s Washington DC legislative office, “we spend a great deal of time trying to figure out exactly what the FBI is doing.” Since the events of 9/11, the Bureau has become part of public enemy number one or what the ACLU has lately dubbed: “the Security-Industrial Complex.” On this front, they’ve recently done battle with the Feds over illegalities in their Joint Terrorism Task Forces, their sneak-and-peak wiretapping, and a half-dozen other highly publicized privacy issues.
Among those is the National Security Letter (NSL), a once rarely used exemption to consumer privacy law created in the 1970s to combat Cold War espionage. Historically, these letters allowed the FBI to secretly review the telecommunication and financial records of suspected foreign agents. Before 9/11 they sent out maybe 8,000 a year. These days, according to a recent ACLU spurred Inspector General audit, the FBI believes there are over 150,000 suspect agents hiding out in America, and what once meant credit card receipts and who-called-whom telephone logs now includes a Big Brother panoply of university transcripts, library check-out records and casino gambling habits.
German, because of the particularity of his background, is ideally suited to waging exactly this kind of war. During his sixteen years with the Bureau, he learned all of their tricks and, in March of 2006, about six-months into his job with the ACLU, used this knowledge to create what has become known as “The Road Map to the Report,” a six-page summary of the FBI’s illegal activities hidden inside the IG’s audit.
“We’re a pretty skeptical bunch at the ACLU,” says Fredrickson, “and we had our best litigators go over that report, but Mike pointed out a bunch of stuff that they didn’t see.” To give you an idea of how good the FBI is at hiding their dirty laundry in reams of bureaucratic language, among the activities buried in that report that the ACLU missed was the seemingly obvious fact that special agents actually sought out legal council on the use of the NSL, then spuriously ignored that council and did what they pleased. But German didn’t miss these things. He has more than enough knowledge of the policy and procedure to parse the language and uncover the truth. In fact, in September of 2007, German’s Road Map helped a federal court to strike down a portion of the Patriot Act.
In law school, at Wake Forest, most everyone who knew Mike German believed him to be politically to the right of John Birch. At the FBI, most of his co-workers thought of him as a liberal. And in May of 1992, when a case agent strolled in the FBI’s Los Angeles headquarters looking for someone to send undercover, both of these things were considered assets. “Mike doesn’t look like a cop and he doesn’t think like a cop,” says Alan Lubin, German’s former trainer at the FBI, “but that’s only part of it. Working undercover requires a gift, some kind of magic that eludes the rest of us.” On that day, another part of German’s gift was his blonde hair and blue eyes. The agent had come looking for someone to impersonate a white supremacist.
In 1992, members of the Fourth Reich Skinheads, World Church of the Creator and White Aryan Resistance began collecting arms and explosives in the hopes of committing a crime so terrible that a race war would result. Their target list included everyone from Reverend Al Sharpton to Public Enemy’s Chuck D, but at the time of German’s insertion, their immediate goal was bombing the First African Methodist Episcopal Church in Los Angeles.
German grew out his hair and spent a year playing an arms dealer. Because of the FBI’s legendary aversion to embarrassment, most of that time was spent without traditional undercover support. “Undercover operations can go wrong,” says German, “sometimes publicly wrong. For the first six months I was on the case, the FBI wanted nothing to do with it. They hadn’t funded the operation, they wouldn’t pull the trigger and give us the full resources to operate.”
Despite this, in September of 1993, the bombing was averted and eight neo-Nazis went to jail. Four years later, he was sent inside once again, this time posing as a purveyor of stolen merchandise. The target was the Washington State Militia and the Seattle-based Freemen. “I think the worst day of my life was on that case. We were in this guy’s garage and they were putting detonators in bombs. They didn’t know what they were doing, mixing chemicals, making mistakes. And on the other side of that plywood wall were half-a-dozen twelve year olds—the guy was having a birthday party for his daughter.”
In by-the-book operations, the Bureau would have supplied German with a bomb-proof safehouse for such bomb-building activities. Instead, he was funding the operation out of his wallet, hoping the government would reimburse him. Again, he was successful—bloodshed averted, eight militia members arrested. Taken together these two cases are among the most successful domestic terrorism operations in FBI history—a fact which makes everything that happened next so much stranger.
In 2002, an Islamic Fundamentalist with links to terrorists abroad started meeting with American White Supremacists. They had common ground—both wanted to kill Jews. An informant tipped off the Bureau and the Bureau asked German to go undercover again. Once inside, it didn’t take long for him to realize that during one of those early meetings the informant had left his tape recorder running while leaving the room—violating the Fourth Amendment and rendering that portion of the tape inadmissible in court. “There’s a very standard procedure if evidence is accidentally obtained illegally,” says German, “but the FBI wasn’t following it. They decided to pretend the illegal part didn’t happen. They hid the evidence and wrote false memos and acted like the meeting never occurred.”
In vain, German brought this up with the case agent, and later to the attention of higher-ups. The brass refused to alter their position, instead offering German a choice transfer to Hawaii. According to Steve Salmieri, Chief of the Undercover and Sensitive Operations Unit for the FBI during German’s tenure: “Everyone begged him to stop. He was too valuable to lose, he was five years from retirement. People told him to take the transfer and toe the line.” German didn’t toe the line. Instead, he brought the case to the attention of Senators Charles Grassley, Orrin Hatch, and Pat Roberts.
The FBI is never kind to whistleblowers, but they went out of their way to punish German. Because of his time undercover, there are still some heavily armed white supremacists gunning for him. For these reasons, German has spent years hiding certain basic facts. In 2003, Jane Kramer’s book on the Washington State Militia, Lone Patriot, came out and exposed one of those facts: the town where he lived. Because of exactly this kind of danger, the Bureau had previously relocated German, but this time around, when he asked for a threat assessment, they refused. “It was right then I realized this was no longer a game—there were people in the FBI who were suddenly more than willing to let me get killed.”
The worst of it came in June 2004, right around the time German resigned. NBC’s Dateline got wind of the story and the FBI Assistant Director of Public Affairs, Cassandra Chandler, went on national television and called German a liar, claiming that any connection between domestic militias and foreign terrorists was complete fabrication. At this point, German alerted Senator Grassley that a transcript of a taped meeting existed that showed just such a link. He then spent two years working with Senator Grassley trying to clear his name. It took that long for the Senator’s investigative team to obtain the corroborating documents and get excerpts entered into the Congressional Record. In that record, Grassley points out that the meeting—one the FBI first claimed didn’t occur, then falsified documents to cover up—was actually about “their shared admiration for Hitler, arms shipments from Iran, their desire for civil war in the United States, their approval of suicide bombings and, lastly, assassinating pro-Israeli journalists in the United States.”
German also used those two years to write a book, Thinking Like A Terrorist (itself a little bit of revenge since he’s very vocal about the FBI’s mishandling of 9/11), and founded a consulting firm, but he’d been tarred on national television and there were few takers for his services. After two years on the outside, he decided the best way he could continue being useful was to join the ACLU. “With the FBI, I saw a lot of very brave people do a lot of very dangerous things. At the ACLU, I see the exact same thing—but these people aren’t out there with flak vests and big guns taking on the bad guys. They don’t have the weight of the federal government behind them. They stand alone, unprotected, saying this will not happen on my watch. I wanted to be a part of that.”
Mostly, these days, what he’s part of is leading the ACLU’s charge against “fusion centers.” These are federal, state, local and regional law enforcement centers designed to improve the sharing of anti-terrorism information—roughly miniaturized domestic intelligence agencies. There are currently 50 such centers scattered throughout the US with so many different agencies involved they can practice what’s known as “policy shopping.” When a particular piece of information is desired, these centers avoid the law by finding a participating entity with either direct access to this information or the proper jurisdiction to get that access.
“This means,” says German, “if a fusion center wants to search your house and there’s an FBI agent, a state police officer and public utilities representative on hand. Well, the FBI might not have the evidence to get a warrant, and the police might not have the evidence, but say the water meter is located within the house, then the utilities company can send a meter reader out. He can look around the house and perhaps find something that could give them probable cause—so then they can then get their warrant.”
Furthermore, fusion center guidelines encourage partnerships with private entities—physicians, veterinarians, cruise lines, hotels, banks, apartment complexes, shopping malls, software designers, oil companies—which give them access to info normally off-limits to government and, because private entities are not subject to FOIA requests, further allows them to sidestep public oversight. This also gives cooperating private companies extraordinary access to data about their competitors (a Boeing representative works at the Seattle fusion center—a position that provides access to classified documents including, say, the secrets of competing firms like McDonnell-Douglas). The government also allows military personnel to work at fusion centers, a clear violation of the 1878 Posse Comitatus Act. But none of these things are what German finds most troubling.
“The whole data-mining model doesn’t work,” he says. “We’re sub-contracting to companies who want to solve terrorism with technology. It’s pure snake oil.” Explaining this, German likes to point out that pro football teams use much narrower data sets to scout rookies than the government does hunting terrorists, but they still draft a guy like Ryan Leaf. “If this kind of predictive analysis really worked, these companies would be selling their services in Vegas or on Wall Street. Vegas and Wall Street aren’t buying it—only the government is.”
German’s leading the charge against these centers, not only because his former insider status gives him first hand knowledge of these problems, but also because he lends the ACLU some much needed credibility. “Normally, we go into a meeting with law enforcement and they don’t tend to take us too seriously,” says Barry Steinhart, Director of the ACLU’s Technology and Liberty Program. “When Mike comes along it’s a different ball game. He’s former law enforcement—they have to take him seriously.”
One afternoon last November, German was returning from lunch. On his way back, while waiting for an elevator in the lobby of the ACLU, a co-worker who sat through a meeting with him not an hour earlier walks over.
“I’ve been following you,” she says.
The elevator arrives. German steps aboard and offers a small, tight smile that gives little away.
“You know,” he says, “I’ve been followed before.”
The doors shut and the rest of the ride is in silence. There’s nothing else to say.