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.
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.
Mueller went on to say:
But [FBI agents] need consistent, clear guidelines that do not vary based on whether they are facing a threat from MS-13 or Hezbollah."
This is equally as absurd. Hezbollah's many crimes and acts of terrorism against Americans are well documented over many decades and the current guidelines authorize terrorism enterprise investigations. The FBI undoubtedly has full investigations regarding Hezbollah open under both sets of guidelines. What the FBI is demanding in these new guidelines is the authority to investigate individuals or groups when the FBI does not have a factual basis for suspecting them of having done anything harmful to anyone. That's very different.
Another example would be we know, quite obviously, that in — that in western Pakistan now — that there are camps in which individuals are being trained. The U.K. knows that very well because individuals who were involved in the 2005 attacks and later attacks had traveled to Pakistan for training in the camps and then come back. I believe the American public, this committee would want us to understand that potential threat and do what is necessary to try to identify persons who had traveled to Pakistan — whatever their heritage, whatever their background, whatever their ethnicity — to determine who is going to — to Pakistan to obtain that training and may be coming back to the United States to undertake an attack. Under the previous guidelines, undertaking that type of investigation would be problematic because we had not focused on one particular crime and one individual."
So under his example, because someone who traveled Pakistan and did something bad anywhere in the world, the FBI should be able to investigate everyone who has ever been to Pakistan? That doesn't make any sense from a resources or a civil liberties standpoint. The idea that such an approach would produce valuable information, as opposed to creating reams of false leads that divert FBI resources, reflects a fundamental misunderstanding of how effective investigations work. So if an Irishman robs a bank in London, the FBI will investigate anyone who's been to Ireland? This is simply a justification for a Total Information Awareness-style data grab. Terrorists and criminals have come from all over the world, including right here in the USA.
Moreover, the terrorist bombings in London were crimes and the FBI undoubtedly can open investigations related to those criminal activities. Likewise, just as with Hezbollah, the FBI has ample authority under both sets of guidelines to thoroughly investigate al Qaeda and all its offshoots.
Finally, Mueller used the pre-9/11 "Phoenix memo" about terrorism subjects enrolling in flight schools as justification for more authority:
One is the Phoenix memorandum. Most people are familiar with the fact that a — a very good agent in Phoenix prior to September 11 noted that individuals from the Middle East who were associated with more radical elements in the Phoenix area were taking flight lessons. He drafted a memorandum, it was sent back to headquarters, and no action was taken on it by the time of the attacks. It is that kind of — of threat and identification of a very suspicious circumstance that would warrant further investigation. And under the — the preceding guideline, it would be problematic in order to undertake the activities we wanted to follow up on."
The Phoenix memo is an odd thing for Mueller to have brought up in this context. The problem with the Phoenix memo was that the supervisors at FBI headquarters that the memo was addressed to didn't read the July 10, 2001 memo before the September 11 attacks, not that there was any lack of authority to collect the information or act on the agent's recommendations. The fact that the Phoenix memo was written and sent to headquarters demonstrates that FBI agents did have the authority to collect intelligence about this type of activity - the agent was reporting that he noticed that several subjects of FBI terrorism investigations were taking flight lessons, so the FBI was already investigating these people. The problem was a lack of competence at FBI headquarters, not a lack of authority. Director Mueller seemed to be hoping that none of the committee members would call him on this, and none did.
We can hope that the members' failure to call Mueller's bluff does not mean that they have fallen for his multiple red herrings.