ACLU demands answers on unconstitutional guidelines, national security letters and FBI’s role in torture

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Washington, DC – With FBI Director Robert Mueller set to testify in front of both the House and Senate Judiciary Committees this week, the American Civil Liberties Union calls upon committee members to ask tough questions about the agency’s new internal guidelines and past abuses.  The ACLU is deeply concerned with revisions to FBI internal guidelines governing investigations that allow agents to use an array of intrusive measures without evidence. The original guidelines were adopted in the mid-1970’s after investigations showed widespread abuses and violations of constitutional rights by the FBI.

Under the revised guidelines, FBI agents no longer need “factual predication” to use paid informers, spy on a person’s activities or engage in other types of intrusive surveillance; all that will be necessary is a hypothetical “threat.”  This controversial change opens the door to racial profiling as someone’s race, religion or ethnic background could be used as a factor in opening an investigation.  Moreover, FBI agents will be able to use these same intrusive techniques before public demonstrations to investigate potential participants. Allowing investigations without reasonable suspicion is unconstitutional and violates the Fourth Amendment rights of all Americans.  In addition, Mueller ought to answer to the bureau’s abuse of the national security letter (NSL) subpoena power and the FBI’s role in harsh interrogations during the so-called war on terror.

“These new guidelines open the door to using race and ethnicity in the name of national security. Call it what you will, but it’s still racial profiling and it’s still unconstitutional,” said Anthony D. Romero, Executive Director of the ACLU. “Judging by its long record of oversight failures, it is a huge mistake to think that the FBI can be trusted to police itself now. History speaks for itself. In the past eight years, we have seen some of the worst internal abuses in terms of national security, privacy and civil liberties issues. It’s no surprise that that the Bush Administration has chosen this moment, in the middle of an historic presidential election, to once again exploit national security for partisan political gain.”

The ACLU, along with other advocacy groups, met with Department of Justice (DOJ) officials last week to review the guidelines.  The ACLU fears that the new guidelines would legitimize racial profiling and allow FBI investigations to begin without reasonable suspicion that anyone has done anything illegal.  Agents will be given the ability to begin physical surveillance, perform undercover interviews and gather other evidence against individuals not suspected of wrongdoing. 

In addition to the troubling new guidelines, new facts came to light about the FBI’s misuse of its surveillance authority last month. Director Mueller personally acknowledged to editors at the New York Times and Washington Post that the FBI had obtained the phone records of four reporters in violation of DOJ guidelines.  A DOJ Inspector General (OIG) report on the FBI’s use of NSLs is due to be released in the coming weeks.

“These guidelines give too much autonomy to an agency that has consistently shown it cannot be trusted,” said Caroline Fredrickson, Director of the ACLU Washington Legislative Office. “As we’ve seen in the past, the FBI unfailingly ignores internal guidelines.  Easing restrictions on the FBI’s power is the last thing we should be doing.  Allowing agents to act without oversight while conducting surveillance and gathering evidence will undoubtedly result in exploitation and the violations of Americans’ rights.  The first guidelines were created as a result of the infamous FBI internal abuse during the 1950s and 1960s.  These guidelines would allow for those exact same abuses – abuses on par with the infamous COINTELPRO program – to go forward. If the FBI hasn’t learned from its past mistakes, we can only assume it will repeat them.”