Interested Persons Memo: Brief Analysis of Proposed Changes to Attorney General Guidelines

To: Interested Persons
From: Marvin J. Johnson, Legislative Counsel, ACLU Washington National Office
Re: Brief Analysis of Proposed Changes to Attorney General Guidelines
Date: May 30, 2002

The changes in the guidelines represent a generalized lifting of restrictions on FBI spying activity that have worked well for many years. The FBI already has the operational freedom and authority to gather the information it needs to do its job; the real shortcoming arises in its inability to properly analyze the mountains of information it collects.

The guidelines were initially put in place after revelations that from the 1950s through the 1970s, the FBI had engaged in illegal surveillance and wiretapping. The FBI also engaged in dirty tricks, including trying to break up marriages and even attempting to get one civil rights leader to commit suicide. Investigations dragged on for decades even though there was no indication the target of the investigation had committed or was about to commit any wrongdoing.

After congressional hearings revealed the extent of the problem, the Attorney General promulgated the guidelines in order to provide greater oversight and control over the agents in the field. Thus, lengthy and fruitless investigations begun by field agents could not continue indefinitely.

The new guidelines now lift many of those restrictions, returning much of the control over investigations back to the field agents, and returning us potentially back to the days when the FBI was used as a tool to squelch political dissent.

The new guidelines will broadly loosen restrictions on domestic spying on religious and political organizations.

Proponents of this change claim the FBI should have the authority to send agents into your church, synagogue, or mosque “just in case” you might be planning some nefarious activity. This was the same basis upon which the FBI sent agents into churches and other organizations during the civil rights movement. The FBI then used this information in an attempt to stymie the movement, suppress dissent, and protect the administration.

This change is unnecessary. The FBI has never been prohibited from entering places of worship to conduct investigations where there was a reasonable basis for doing so.

Proponents claim agents had to “”stop at the church door,”” but that appears to be the result of inadequate training rather than the rule itself. “”Under guidelines that have been in place for several decades, the FBI has not been permitted to send investigators into religious settings unless the agents can establish they are following a lead, or conducting an investigation or preliminary inquiry. As a practical matter, the Justice Department official said, ‘agents mistakenly think they have to stop at the church door.'” Washington Post, 05/30/02 [Emphasis added.]

The FBI will now be able to conduct generalized topical research even though they have no evidence a crime has been or is about to be committed.

The FBI has never been prohibited from reading the newspaper or surfing the Internet. For decades, and under the current Guidelines, it opened preliminary inquiries and investigations based on what agents have read in the newspaper about potential criminal activity.

Our concern is what the FBI does with this evidence. In the past, the FBI used its investigative authority to collect political intelligence for use against political enemies. The Guidelines require a connection to crime in order to rein in fishing expeditions and harassment of political enemies. Such activities resulted in wasted manpower and showed little results. Now the FBI wants us to trust them not to abuse this information.

Additionally, this ability to generally troll for information and monitor everyone’s Internet postings when there is no evidence that they are involved in crime is unlikely to catch terrorists, because it assumes they will leave behind some sort of trail. In reality, the September 11 terrorists left little behind.

On May 8, the Director of the FBI, Robert S. Mueller testified to the Senate Judiciary committee that the 9-11 hijackers “”? contacted no known terrorist sympathizers. ? The hijackers also apparently left no paper trail. In our investigation, we have not yet uncovered a single piece of paper ? that mentioned any aspect of the September 11th plot. As best we can determine, the actual hijackers had no computers, no laptops, no storage media of any kind.””

These are not the kind of people who write letters to the editor or talk in chat rooms; they were keeping a low profile. The FBI is looking for terrorists in the wrong places and is instead likely to be monitoring nothing more than communications protected by the First Amendment.

The FBI will now purchase information from data mining companies.

The FBI now wants to purchase data from commercial enterprises. Thus, any time you write a check, use a credit card, buy something on credit, make department store purchases, surf the web, use an e-z pass to buy gasoline or pay a toll, the FBI may be permitted, under the new guidelines, to purchase this information to build a profile on you.

These data mining operations are the same ones used by spammers to determine that you may be interested in various sex devices, refinancing your home, or making $1 million in your spare time. This information is used to target consumers for products they have no interest in receiving; should it be relied upon to open a terrorism investigation of a person that could change his or her life?

The FBI will now be able to conduct preliminary inquiries for one year.

Currently, when the FBI has a “”reasonable indication of criminal activity”” (something far less tha probable cause of crime), it can open a full investigation. If it has even less evidence of crime, it can open a preliminary inquiry. Such inquiries can involve use of many intrusive investigative techniques, including use of informants. Preliminary inquiries were to be completed within 90 days after initiation of the first investigative step. Extensions of time for succeeding thirty-day periods could be granted by FBI Headquarters upon receipt of a written request and statement of reasons why further investigative steps were warranted when there was no “reasonable indication” of criminal activity. Therefore, preliminary inquiries could last longer than 90 days, but required headquarters approval. The purpose of this rule was to avoid fishing expeditions and waste of manpower when there was no “reasonable indication” that anyone was breaking the law.

The new rule will extend the authorized duration of preliminary inquiries from 90 days to 180 days. They will also allow the Special Agent in Charge to authorize two ninety-day extensions. Agents will now be allowed to engage in fishing expeditions, spy on citizens and noncitizens, and gather political intelligence for up to one year with no oversight from headquarters. Even when agents have found nothing within 180 days, the FBI wants its agents to continue looking for a full year, without any oversight from headquarters.

It appears much of the oversight by headquarters put in place to insure that agents restricted their activities to investigation of actual crimes is now being removed.

The FBI will now be able to conduct full investigations for one year with no evidence of a crime being committed. Racketeering and Domestic Security/Terrorism investigations last now for 6 months. After 6 months, the FBI has to show that it found some evidence of crime in order to extend the investigation. Under the revised Guidelines, it will be able to continue to investigate, with the full panoply of its investigative powers, when after 6 months it has found nothing to justify keeping the investigation open. This is an invitation for a fishing expedition.