Bush-Era Rule Grants FBI Unprecedented Investigative Powers
Attorney General Michael Mukasey
Veterans groups and conservatives roared last week when news broke that the FBI was targeting veterans in a broad probe of extremist groups. But little noise was made in December, when the Bush administration quietly granted the FBI wide-ranging authority to investigate individuals or groups, regardless of whether they are suspected of criminal activity.
The Attorney General Guidelines, proposed last summer and adopted by Attorney General Michael Mukasey, appear to be particularly problematic. Although in the past these guidelines required that the FBI have at least some factual basis for believing that the target of an investigation was engaged in criminal activity, in December 2008, Mukasey instituted new guidelines that authorized the FBI to conduct “assessments” of suspects without requiring any factual basis for suspicion.
Illustration by: Matt Mahurin
Specifically, the Mukasey guidelines, purportedly “to prevent future terrorist acts against the American people,” allow the FBI to use physical surveillance; interview a person’s neighbors, landlord, colleagues or friends; recruit and assign informants to attend political or other meetings under false pretenses – essentially to act as an undercover spy; and to retrieve personal data from commercial databases; all without having a factual basis to believe that the target of the investigation has done anything wrong.
“I’m a former FBI agent and I can tell you it’s beyond bizarre,” said Michael German, policy counsel on National Security, Immigration and Privacy with the American Civil Liberties Union, and a 16-year veteran of the FBI.
The Attorney General Guidelines were first created in 1976 in the wake of the revelation of intelligence and law enforcement abuses during the Watergate era and revealed by the Church Committee. “The guidelines always required articulable facts to support a reasonable suspicion that someone was violating the law,” said German. “That’s a very low standard.”
Similarly, the Code of Federal Regulations has long required that state and local law enforcement agencies receiving federal funding “collect information concerning ain individual only if there is reasonable suspicion that the individual is involved in criminal conduct or activity and the information is relevant to that criminal conduct or activity.”
Reasonable suspicion is much less than the standard for an arrest, which requires “probably cause.”
“But you need to articulate why you think this person deserves your attention,” said German. “I would say to FBI agents, if you can’t articulate why you’re investigating this person then you probably shouldn’t be out there.”
Under this new “assessments” authority, however, the FBI can recruit informants and send them, undercover, into any organization to spy on them. To critics, that seems eerily reminiscent of FBI counter-intelligence programs in the 1960s and early 70s, used to spy on political leaders and organizations that the government considered radical, such as the Rev. Martin Luther King, Jr.
“This is very intrusive behavior,” says German. “They can get Grand Jury subpoenas for your telephone records, even though they don’t actually suspect you of doing anything wrong. It could be just for the purpose of determining whether you’d be a good informant.”
FBI agents can also interview an individual’s friends or co-workers. “Being under investigation does not come without risks,” said German. “When the FBI is going and interviewing your landlord and your banker and your friends it can cause great harm to come to you even absent your ultimate arrest. Not to mention legal expenses to defend yourself.”
The recent change in the Attorney General Guidelines parallel other changes made after September 11, when the federal government began broad wiretapping and other data collection programs, some authorized by the USA Patriot Act. But the Attorney General Guidelines, covering FBI investigations, can be amended by the Attorney General alone, and unlike federal legislation don’t require the approval of Congress. The latest amendments are therefore much broader than what federal legislation allows state and local law enforcement authorities receiving federal funding to do, for example, which is covered by the Code of Federal Regulations.
Whether these expanded powers are effective, however, is not at all clear. As the government has scaled up its surveillance operations, the number of prosecutions for FBI international terrorism cases has steadily declined. What’s more, according to a recent ACLU report, the DOJ declined
to prosecute 87 percent of the international terrorism cases that the FBI referred for prosecution. “Only a tiny fraction of the many thousands of terrorism investigations the FBI opens each year are even referred for prosecution,” writes the ACLU in its March 2009 report on the USA Patriot Act, “thereby demonstrating that the vast majority of the FBI’s terrorism-related investigative activity is completely for naught – yet the FBI keeps all of the information it collects through these dubious investigations, forever.”
That hasn’t stopped the Justice Department from expanding the FBI’s powers over the last seven years, however.
Beginning under Attorney General John Ashcroft, the guidelines were amended to allow longer preliminary investigations of suspects, and allowed the FBI to conduct investigations up to an entire year without requiring even a “reasonable indication” that they were engaged in criminal activity. The only things not allowed by these investigations were opening the subject’s mail and electronic surveillance. Still, the Ashcroft guidelines required at least “information or an allegation which indicates the possibility of criminal activity.”
That requirement was removed under Attorney General Michael Mukasey.
When Mukasey announced that he was considering changing these guidelines, some members of Congress objected. In August 2008, Sens. Russ Feingold, Dick Durbin and Ted Kennedy wrote a letter to Mukasey expressing their concerns “about the extent to which such authority might, for example, permit the FBI to conduct long-term physical surveillance of an innocent American citizen; interview such an individual’s neighbors and professional colleagues, including based on a “pretext” or misrepresentation; recruit human sources to provide information on that individual; or conduct commercial database searches on that individual – all without any basis for suspicion.”
“We are particularly concerned that the draft guidelines might permit an innocent American to be subjected to such intrusive surveillance based in part on race, ethnicity, national origin, religion, or on protected First Amendment activities,” the Senators wrote.
A coalition of nearly 40 organizations representing civil liberties, religious freedom and other interests also sent a letter to Mukasey at the time seeking more information and objecting that the guidelines would expand the scope of the FBI’s powers “to an unprecedented degree.”
Their objections appear to have had no influence, however, because the proposed changes were adopted in December 2008, just weeks before Mukasey left office.
As Caroline Fredrickson, director of the ACLU’s legislative office in Washington said in written testimony submitted to a Senate Judiciary Committee hearing on national security and civil liberties on Tuesday: “The new Guidelines explicitly authorize the surveillance and infiltration of peaceful advocacy groups in advance of demonstrations, and they do not clearly prohibit using race, religion, or national origin as factors in initiating assessments.”
Because of the secrecy of the investigations, little is known about how they’ve been used so far, says German. But such information could be shared with other law enforcement agencies at “fusion centers” around the country that are designed to encourage information-sharing among law enforcement. Recent fusion center reports have encouraged law enforcement to monitor educational institutions and religious and political organizations to detect possible “radical” behavior.
The recent news about Operation Vigilant Eagle and the broad-based surveillance of extremist groups provides one example of how the FBI might be using that power.
Mike German, the former FBI agent, summed up the attitude behind the rule this way: “There isn’t any crime, but we’re going to do this broad review because potentially crime is a possibility.”