In the past two days, we have seen FBI Director Robert Mueller go before both the House and Senate Judiciary Committees for oversight hearings, the congressional equivalent of a checkup. But the recently proposed changes to the FBI's investigative guidelines made these appearances anything but routine. ACLU Policy Counsel Mike German attended both hearings, and has lent insight into some of the more outlandish highlights they produced:
Director Mueller made some odd comments during his testimony to justify the need for the newly proposed guidelines. He kept playing on the theme that there are things FBI agents can do in criminal investigations that they cannot do in national security investigations, and that it was only reasonable to create a single set of guidelines.
He said:
To give you a few examples, in the guidelines governing national security investigations prohibited recruiting or tasking sources unless the FBI had at least a preliminary investigation open. They also prohibited physical surveillance other than casual observation, while the general crimes guidelines, which governed other criminal investigations, did not contain these limitations. So, ironically, in my cases an agent could readily use physical surveillance to watch a suspected smuggling route for drugs or counterfeit blue jeans but not for a terrorist bomb.
This is of course, absurd. Smuggling bombs is a crime so the example just doesn't make sense. What the FBI is really demanding in the new guidelines is the authority to conduct "assessments" against Americans using intrusive investigative techniques, even when the FBI has no factual support to suggest they are smuggling blue jeans, bombs or doing anything else that is illegal or dangerous to national security.
What it brings out, however, is that the FBI is interpreting its authority under the Ashcroft guidelines on general crimes to "check leads" as authorization for the activity they are now calling "assessments." The language in the Ashcroft guidelines regarding the checking of leads authorizes the FBI to conduct "prompt and extremely limited checking out of initial leads" to determine whether enough information exists to open an investigation. It goes on to say: "This limited activity should be conducted with an eye toward promptly determining whether further investigation (either a preliminary inquiry or full investigation) should be considered." The idea that "prompt and extremely limited checking out of initial leads" would authorize 24/7 physical surveillance, the recruiting and tasking informants and conducting "pretext" — that means undercover — interviews for an unlimited amount of time is just plain shocking. There's no point in having guidelines if the FBI will interpret plain language to mean something other than its commonly defined terms.
