Source Documents
New FBI guidelines for investigations in full

Memo discussing the changes distributed to Justice Department staffers (9/29)

Testimony of FBI general counsel Valerie Caproni to the Senate Select Committee on Intelligence (9/23)

Testimony on the changes from FBI Director Robert Mueller:
Senate Judiciary Committee (9/17)
House Judiciary Committee (9/16)

Historical analysis of the guidelines by the Electronic Privacy Information Center
Wall Street’s $700 billion bailout reasonably dominated the news cycle last week. But something else occurred on Friday just as Washington prepared to leave for the weekend, and the announcement has civil libertarians in an uproar.

The Justice Department finalized a new set of more lenient guidelines regulating what tactics FBI agents can use for criminal and national security investigations.

Elements of the proposed changes generated attention after Democratic lawmakers heard testimony about them in August and worried publicly in a letter to the Attorney General’s Office that they could lead to abuse. The Justice Department also presented the changes to advocacy groups inviting the American Civil Liberties Union, the Electronic Privacy Information Center and others to read but not copy them before they were released.

Attorney General Michael Mukasey and FBI Director Robert Mueller then declared in a joint statement Friday that they’d “consulted” with civil liberties groups and Congress prior to making the changes final implying that the effort was supported across the political spectrum.

But that apparently wasn’t the case. Vermont Democratic Sen. Patrick Leahy promptly blasted the changes complaining that the bureau ignored bipartisan requests to share the actual guidelines with Congress and that the FBI had already abused its authority to use so-called national security letters, which forced the turnover of private information or data on individuals without authorization from a court.

Leahy also argued that the Justice Department can do a better job balancing necessary zeal in fighting terrorism with constitutional protections that should restrict agents from launching widespread probes of groups and individuals that haven’t violated the law.

“The Attorney General is once again giving the FBI broad new powers to conduct surveillance and use other intrusive investigative techniques on Americans without requiring any indication of wrongdoing or any approval even from FBI supervisors,” Leahy, chairman of the Senate Judiciary Committee, said in a statement.

The Washington Post reported that the Justice Department was asked to wait until the next president takes office before making any drastic changes to bureau guidelines, but the current White House, which is similarly overhauling how other law-enforcement agencies can collect domestic intelligence as Bush’s tenure comes to a close, rejected that idea.

The bureau’s definition of “assessment” is what seems to startle some observers the most. An assessment is different than a full-blown criminal or national security investigation, the latter of which requires reasonable suspicion, or “factual predication” as the bureau calls it, that a crime has occurred.

Groups or individuals targeted for an assessment may simply resemble to an agent a risk to public safety without any advance information indicating that was the case. It’s not clear, then, how the bureau determines what groups or people should be spied upon if they haven’t broken any laws and whether that process is arbitrary.

“[The FBI] cannot be content to wait for leads to come in through the actions of others, but rather must be vigilant in detecting terrorist activities to the full extent permitted by law, with an eye towards early intervention and prevention of acts of terrorism before they occur,” the new guidelines state.

Among the powers agents now have for an assessment:

• Conduct surveillance without an otherwise required court order

• Obtain grand jury subpoenas for personal telephone and e-mail accounts

• Recruit informants for feeding information about a group or person to the bureau

• Examine records maintained by federal, state and local government agencies, which are typically not accessible to the public, like police databases profiling past criminal suspects.

In particular, the powers allow agents to “collect information relating to demonstration activities,” according to the guidelines, for the purpose of protecting “public health and safety” before a major event, like the party conventions that occurred in St. Paul and Denver. The bureau can gather intelligence to determine where political demonstrators are lodging during the event, how they’re traveling there, where demonstration activities are planned and how many people will attend, all without advanced proof that a national-security threat exists.

Agents can also access commercial databases containing large volumes of personal information on U.S. citizens, like those maintained by the private company ChoicePoint, which specializes in serving government agencies.

The bureau, for its part, says the old rules led to confusion among agents who were limited to varying techniques for intelligence gathering depending solely on whether an investigation was given a “criminal” or “national security” label.

“Under the new guidelines, the investigative steps that the FBI may take in a particular investigation will not be driven by irrelevant factors, such as the type of paperwork the agent uses to open the investigation,” Mukasey told a crowd during an August anti-terrorism conference in Oregon. “The revisions also aim to eliminate distinctions in the existing rules that make it, in practice, harder to gather information about threats to the national security than it is to conduct ‘ordinary’ criminal investigations.”

The Post echoed Mukasey in an editorial Sept. 29 supporting the proposed changes arguing that they give the bureau as much flexibility to deter terrorist strikes as it’s traditionally been afforded for basic criminal cases.

“The bureau and the Justice Department did not have to seek Congress’s input before putting the guidelines into effect; they should be commended for voluntarily doing so and for seeking feedback from religious and civil liberties groups,” the paper wrote.

The ACLU, however, points out that the previous rules were established in the 1970s after congressional investigations made public the extensive and illegal harassment and surveillance by the FBI of political and social activists including Martin Luther King Jr. The program was known as COINTELPRO and revelations about the breadth of its counterintelligence activities tarnished the bureau’s image for years.

“The new guidelines provide no safeguards against the FBI’s improperly using race and religion as grounds for suspicion,” ACLU Executive Director Anthony Romero said in a statement Friday. “They also fail to sufficiently prevent the government from infiltrating groups whose viewpoints it doesn’t like. The FBI has shown time and time again that it is incapable of policing itself and there is good reason to believe that these guidelines will lead to more abuse.”

The news site last week discussed the rule changes with ACLU policy counsel Mike German, a former FBI agent of several years. You can listen to the interview online.

Meanwhile, in other homeland security news, the Army Times reported Sept. 30 that a military combat brigade has been given a dedicated assignment on U.S. soil “as an on-call federal response force for natural or manmade emergencies and disasters, including terrorist attacks.”

According to the story, “[The brigade] may be called upon to help with civil unrest and crowd control or to deal with potentially horrific scenarios such as massive poisoning and chaos in response to a chemical, biological, radiological, nuclear or high-yield explosive attack.”

The news was largely overlooked by the mainstream press, but the blogosphere lit up in response questioning whether the domestic deployment of a military unit violates the 19th century-era Posse Comitatus Act and the Insurrection Act, both of which were designed to limit the authority of the federal government to use the military internally for law-enforcement purposes. Congress in recent years has battled with the White House over the president’s right to declare martial law and use combat troops for suppressing lawlessness within the United States.

The Seattle Post-Intelligencer on Oct. 1 did publish an op-ed on the matter from left-wing radio journalist Amy Goodman, who was arrested for obstruction with two producers amid demonstrations at the recent Republican National Convention. Dozens of other journalists were arrested as well.

Creative Commons License

Republish our articles for free, online or in print, under a Creative Commons license.

G.W. Schulz is a reporter for Reveal, covering security, privacy, technology and criminal justice. Since joining The Center for Investigative Reporting in 2008, he's reported stories for NPR, KQED,, The Dallas Morning News, the Chicago Tribune, the San Francisco Chronicle, Mother Jones and more. Prior to that, he wrote for the San Francisco Bay Guardian and was an early contributor to The Chauncey Bailey Project, which won a Tom Renner Award from Investigative Reporters and Editors in 2008. Schulz also has won awards from the California Newspaper Publishers Association and the Society of Professional Journalists’ Northern California Chapter. He graduated from the University of Kansas and is based in Austin, Texas.