Attorney General Michael Mukasey and the Department of Justice have released new guidelines that will govern FBI investigations. The ACLU was invited to the Department of Justice to review and comment on the guidelines during the drafting process, although not allowed to take a copy of the draft guidelines. The final version, however, lacks the changes requested by not only the ACLU but members of Congress and the American people. The proposed guidelines are scheduled to be implemented on December 1, 2008, less than two months before a new administration is scheduled to take office.
1) The FBI may open “assessments” without any factual predicate.
Under the new “assessment” authority, FBI agents can investigate anyone they choose, so long as they claim they are acting to prevent crime, protect national security, or collect foreign intelligence, with absolutely no requirement of a factual connection between their authorizing purpose and the conduct of the individuals they are investigating. FBI agents can start “assessments” without any supervisory approval, and without reporting to FBI headquarters or the Department of Justice. The Guidelines do not require the FBI to keep records regarding when “assessments” are opened or closed and “assessments” have no time limitation. The FBI can even start an “assessment” of you simply to determine if you would make a good FBI informant. Innocence no longer protects ordinary Americans from being subjected to a wide range of intrusive investigative techniques. The techniques include:
- collecting information from online sources, including commercial databases.
- recruiting and tasking informants to gather information about you.
- using FBI agents to surreptitiously gather information from you or your friends and neighbors without revealing their true identity or true purpose for asking questions.
- having FBI agents follow you day and night for as long as they want.
2) The new guidelines open the door to racial profiling.
The new guidelines “do not authorize any conduct prohibited by the Guidance Regarding the Use of Race by Federal Law Enforcement Agencies.” That sounds nice but the Guidance Regarding the Use of Race by Federal Law Enforcement Agencies included an exemption for national security and border integrity investigations. By erasing the line between criminal investigations and national security investigations the guidelines open the door to racial profiling.
3) The new guidelines allow the FBI to conduct full investigations against anyone at the request of a foreign nation, regardless of whether the FBI could have conducted such an investigation on their own authority.
The FBI can share information from its own investigations with foreign governments at its own discretion, so long as they ‘consider the effect such dissemination” may have on United States persons. Really.
4) The new guidelines did not incorporate changes civil liberties and privacy groups requested.
What appear to be limitations on what types of investigative techniques may be used during FBI investigations of civil disorders and demonstrations are illusory. While those types of investigations, governed under Part III of the new guidelines, appear to be limited, FBI agents could simply choose to conduct an “assessment” under the authorities written in Part II instead, which have a lower threshold for starting an investigation and would allow the techniques proscribed in Part III to be used. The guidelines explicitly say this is okay (last sentence in second paragraph under Part III):
“The requirements and limitations in these provisions for conducting investigations for the specified purposes [Part III civil disorders and demonstrations] do not limit the FBI’s authority under Part II to investigate federal crimes or threats to the national security that occur in the context of or in connection with civil disorders or demonstrations.”
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