Department of Justice Finalizes Enhancements of FBI Powers
by Sean Moulton, 10/7/2008
Attorney General Michael Mukasey recently finalized changes to Federal Bureau of Investigation (FBI) rules that increase the agency's ability to gather information on citizens without having prior suspicion of wrongdoing. The new rules cover the FBI's powers over criminal, national security, and foreign intelligence surveillance and have been criticized by civil liberties advocates and privacy groups.
The FBI withheld drafts of the new rules, which will go into effect Dec.1, from congressional inquiry. As reported in the previous Watcher, several senators, including Sen. Patrick Leahy (D-VT), said that the Department of Justice (DOJ) refused to provide copies of the draft guidelines to the Senate Judiciary Committee, and the agency continued such evasive behavior at a hearing on Sept. 17. The stated reason for the new rules was to consolidate several older rules that the FBI argued were outmoded for a post-9/11 environment.
Mukasey and FBI Director Robert Mueller released a joint public announcement Oct. 3 describing the new guidelines. They stated, "Previously, several existing sets of guidelines applied to the FBI's activities, with one set applying to ordinary criminal law enforcement activities; one set applying to national security efforts; another applying to foreign intelligence collection; and additional sets applying to other activities." Mukasey noted that some text of the new rule will remain unavailable to the public, but he took the position that transparency of the FBI's guidelines had improved. "The vast majority of the new rules will be available to the public, in contrast to the classification of substantial portions of the previous guidelines."
Leahy responded in a statement that "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."
In his Sept. 29 memorandum to agency heads, Mukasey wrote that the new rules would replace six existing guidelines, including one governing how the FBI monitors civil demonstrations, which has been in place since 1976.
The new rules govern the FBI activities in the following areas:
- General authorities to conduct investigations inside the U.S.
- The scope and methods allowed for investigations and intelligence gathering
- Providing assistance to other agencies, including other intelligence agencies, state, local and tribal offices, as well as foreign agencies
- Analyzing intelligence to identify and understand trends, causes, and potential indicators of criminal activity and other threats
- Retaining and sharing of information
The most controversial aspect of the new guidelines is the redefinition of the FBI activity called "assessment" as a method of investigation. Assessments allow agents to proactively initiate investigations without a court order and without factual evidence that a crime has been committed or planned. The guidelines explain that assessment investigations can include collecting information from online services, both nonprofit and commercial, such as social networking websites. However, assessments may also involve "observation or surveillance not requiring a court order" and use of "human sources" or informants.
The guidelines also permit otherwise illegal activity by agents and resources as part of intelligence gathering so long as the activity is approved by the Attorney General or Special Agent in Charge. The guidelines note that some illegal activities cannot be authorized, including the use of violence when not defending oneself, as well as unlawful investigative techniques such as illegal electronic surveillance. It is notable that the guidelines describe the activity as "illegal electronic surveillance" and not "warrantless electronic surveillance."
Finally, as Mukasey noted in his statement, there are aspects of the new rules that are not made public. One section authorizes the use of classified investigative techniques without disclosing the type of activities that could be included or any detail on restrictions on the use of such methods. In fact, the concern of disclosure is so great that the guidelines caution on use of the methods because "inappropriate use of classified investigative technologies may risk the compromise of such technologies." The new rules also make several references to classified directives that provide additional information on searches, determining a person's U.S. status, and certain predicated investigations.
Critics argue that these new rules allow for looser foreign intelligence gathering standards to now apply to the way the FBI collects domestic information. Anthony Romero, Executive Director of the American Civil Liberties Union, said, "The guidelines will all but obliterate accountability, because agents will have the power to begin pre-investigations with near complete autonomy.... What is needed is more oversight, not less." Mukasey's memorandum categorized the differences in standards applicable to national security activities versus criminal law enforcement activities as "arbitrary."