Interested Persons Memo: Analysis of Changes to Attorney General Guidelines

June 6, 2002
To:Interested Persons
From:Marvin J. Johnson, Legislative Counsel, ACLU Washington National Office
Re:Analysis of Changes to Attorney General Guidelines
Date:June 5, 2002

On May 30, 2002, Attorney General Ashcroft released new Guidelines on General Crimes, Racketeering Enterprise and Terrorism Enterprise Investigations. Sweeping away protections that have been in place since the 1970s, the new Guidelines allow the government to spy on domestic groups even when there is no suspicion of wrongdoing. Furthermore, the investigations the new Guidelines authorize can continue longer, with intrusive techniques and with less oversight, even when they produce no evidence of crime.

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Recent revelations regarding the FBI's pre-9/11 activities suggest that its hands were not tied by the Guidelines changed by Attorney General Ashcroft. Any failure appears to be the result of inadequate analysis of the information already collected rather than a failure to collect it under the Guidelines then in place.

Rewarding the FBI's failure with broad new powers when it has demonstrated its inability to adequately use the existing tools at its disposal is unnecessary and dangerous.

WHY PROTECTIVE GUIDELINES ARE NEEDED

To understand why these changes are detrimental to American society, one needs to understand why the Guidelines were originally adopted.

During the 1950s through the early 1970s, the FBI and other intelligence agencies launched various programs to spy on Americans. Political dissidents, anti-war activists, civil rights activists, groups from the left to the right, all found themselves subject to infiltration, disruption, and harassment, even though most of the groups did nothing more than exercise their First Amendment rights. For example, the FBI's COINTELPRO (Counterintelligence Program):

  • Anonymously attacked the political beliefs of targets to try and have their employers fire them;
  • Anonymously mailed letters to the spouses of targets to try and destroy their marriages;
  • Falsely and anonymously labeled as Government informants members of groups known to be violent, thereby exposing the falsely labeled members to expulsion or physical attack.[1]

Under the leadership of Senator Frank Church, Congress commenced hearings to examine the FBI's and other intelligence agencies' conduct, and to make recommendations to prevent further abuse.

In 1976, the Church Committee released its report on Intelligence Activities and the Rights of Americans. Its findings were shocking: FBI headquarters alone had developed over 500,000 domestic intelligence files on Americans and domestic groups, and additional files at FBI Field Offices augmented these.[2] In 1972 alone, the FBI opened 65,000 domestic intelligence files.[3] The Church Committee found that intelligence collection programs naturally generate increasing demands for new data, and once the data has been collected, strong pressures are exerted to use it against the target.[4]

Too many people have been spied upon by too many Government agencies and to [sic] much information has been collected. The Government has often undertaken the secret surveillance of citizens on the basis of their political beliefs, even when those beliefs pose no threat of violence or illegal acts on behalf of a hostile foreign power. The Government, operating primarily through secret informants, but also using other intrusive techniques such as wiretaps, microphone "bugs", surreptitious mail opening, and break-ins, has swept in vast amounts of information about the personal lives, views, and associations of American citizens. . . . Groups and individuals have been harassed and disrupted because of their political views and their lifestyles. Investigations have been based upon vague standards whose breadth made excessive collection inevitable. Unsavory and vicious tactics have been employed -- including anonymous attempts to break up marriages, disrupted meetings, ostracized persons from their professions, and provoke target groups into rivalries that might result in deaths. Intelligence agencies have served the political and personal objectives of presidents and other high officials.[5]

In fact, the Committee found that every administration from Franklin D. Roosevelt to Richard Nixon had "permitted, and sometimes encouraged, government agencies to handle essentially political intelligence."[6]

The targets of these intelligence activities spanned a broad spectrum, from the left to the right, religious groups, and establishment politicians.[7] For example, the "Womens Liberation Movement" was infiltrated. FBI sources reported on the formation of the Conservative American Christian Action Council, and even collected information about the John Birch Society.[8] The NAACP was investigated to determine if it "had connections with" the Communist Party. In the first year of the investigation, a report was issued that the NAACP had a "strong tendency" to "steer clear of Communist activities." No evidence was ever adduced to rebut this report, yet the investigation continued for a total of twenty-five years.[9]

Dr. Martin Luther King, Jr. was investigated and harassed for decades in order to destroy his reputation.[10] The FBI saw him as a potential threat because he might "abandon his supposed ‘obedience' to white liberal doctrines (non-violence)."[11] As the Committee stated: "In short, a non-violent man was to be secretly attacked and destroyed as insurance against his abandoning non-violence."[12]

During the span of the 1960s, the FBI and the CIA conducted hundreds of break-ins; sometimes to plant bugs, and in other cases to steal membership lists from so-called "subversive" organizations.[13]

As a result of these revelations, Congress considered enacting statutory protection for American citizens. That proposal was dropped when then-Attorney General Edward Levi adopted the original Guidelines. Thus, Attorney General Ashcroft's statement that his changes do not violate any statute is disingenuous. No statute was enacted precisely because the original Guidelines were adopted to head off an effort to enact a law to protect Americans from an overzealous FBI.

To those who claim this is ancient history, one only needs to read the newspapers to see that the FBI is already questioning people who exercise their rights to freedom of speech.

  • The FBI, because of comments he made at a local gym, visited Barry Reingold, a 60-year-old retired phone company worker. Reingold had stated during an argument that "Bush has nothing to be proud of. He is a servant of the big oil companies and his only interest in the Middle East is oil." The FBI agents informed Reingold that he had a right to freedom of speech, whereupon he told them "Thank you. That ends our conversation." As Reingold closed his door, he heard one of the agents say: "But we still need to do a report."[14]
  • Kate Rafael, a California peace activist, was shocked when the FBI came to her door seeking information about Muslim men. "If it's your job to hunt Islamic fundamentalist terrorists," said Rafael, "Then it's your job to know that they don't hang out with Jewish lesbians in San Francisco."[15]
  • Donna Huanca's small art gallery was preparing to open an exhibit on U.S. covert operations entitled "Secret Wars," when she was visited by the FBI and the Secret Service. The agents were investigating reports of "anti-American activity" at the gallery.[16]
  • A.J. Brown, a student at Durham Technical Community College in North Carolina, was grilled for forty minutes about "un-American materials" in her apartment. From the doorway, the agents took particular note of a poster of George W. Bush holding a noose. It read: "We hang on your every word," referring to his staunch support of the death penalty as the governor of Texas.[17]

It is clear not only that the original guidelines were necessary, but that they are still needed.

BACKGROUND ON THE GUIDELINES

It is important to note that when conducting terrorism investigations the FBI is subject to two sets of guidelines: the first is a classified set of guidelines for foreign intelligence and international terrorism; the second is an unclassified set of guidelines on general crimes, racketeering and domestic terrorism.[18]

The Foreign Guidelines are applicable to investigations inside the United States of foreign powers and international terrorism organizations (like al Qaeda, Osama bin Laden, or Hamas). In other words, the Foreign Guidelines are used when the groups originate abroad, but carry out their actions within the United States. In many ways, the Foreign Guidelines are much more relaxed than the old Domestic Guidelines. For example, under the Foreign Guidelines, investigations may be conducted when there is no suspicion of criminal activity. A person may be investigated on the mere suspicion that he is affiliated with an international terrorist group, even though he has committed no wrongdoing.

On the other hand, the Domestic Guidelines govern investigations of groups that operate in the United States and originate in the United States (like white supremacists, WTO protesters, animal rights activists, and anti-abortion groups).

The Attorney General announced changes to the Domestic Guidelines rather than the Foreign Guidelines. This suggests these changes have little or nothing to do with September 11: the investigation of al Qaeda and its activities in the U.S., because it is a group originating abroad, would be conducted largely under the Foreign Guidelines. Additionally, the fact the investigation of al Qaeda was conducted under the more lenient Foreign Guidelines is further proof that the FBI failed in analyzing the information it had, rather than having its hands tied by the Domestic Guidelines.

Under both the old guidelines and the new, when the FBI has a "reasonable indication of criminal activity", something far less than probable cause of crime, it can open a full investigation. If it has even less evidence of crime, it can open a preliminary inquiry. Under the old Domestic Guidelines preliminary inquiries should be completed within 90 days after initiation of the first investigative step. FBI Headquarters could grant extensions of time for succeeding thirty-day periods upon receipt of a written request and statement of reasons why further investigative step were warranted when there was no "reasonable indication" of criminal activity. Therefore preliminary inquiries could last longer than 90 days, but extensions required headquarters approval. The purpose of this rule was to avoid fishing expeditions and waste of manpower when there was no "reasonable indication" that anyone was breaking the law.

GUIDELINES CHANGES

The Domestic Guidelines were adopted to put the FBI out of the business of spying on Americans when there was no evidence that they were involved in criminal activity. The Ashcroft Guidelines put the FBI back in that business. The Ashcroft Guidelines represent a generalized lifting of restrictions on FBI spying activity that have worked well for many years. Under the old Domestic Guidelines, the FBI already had the operational freedom and authority to gather the information needed to do its job. The problem was its inability to analyze the information it already had. Now, the FBI will add to that mountain of information even more useless facts.

Additionally, the Attorney General has not demonstrated any need for relaxing the domestic guidelines.

The Domestic Guidelines were adopted to deal with three problems arising from abusive FBI investigations:

  • Surveillance of dissenters from government policy because they dissent, not because they may be involved in criminal activity;
  • Inadequate supervision of agents who engaged in objectionable investigative techniques; and
  • The use of unlawful or otherwise objectionable investigative techniques to disrupt the efforts of those who dissented.

By severing the tie between investigative activity and crime and by lessening the accountability of agents in the field to superiors who could reign in or prevent unlawful conduct, the Attorney General has undermined two of the fundamental purposes for adopting the Guidelines in the first place.

Increased Spying on Domestic Religious and Political Organizations

That Ashcroft Guidelines state: "For the purpose of detecting or preventing terrorist activities, the FBI is authorized to visit any place and attend any event that is open to the public, on the same terms and conditions as members of the public generally. No information obtained from such visits shall be retained unless it relates to potential criminal or terrorist activity."[19] This was the same basis upon which the FBI sent agents into churches and other organizations during the civil rights movement, and then attempted to block the movement, suppress dissent, and protect the administration.

The old Domestic Guidelines required that FBI activity be predicated upon at least a modicum of suspicion that crime was afoot. After all, during the 1950s and 1960s the FBI routinely infiltrated political and religious groups to spy on their activities. The original Domestic Guidelines were designed to prevent these widespread fishing expeditions. Preliminary inquiries could be opened when there was not yet a "reasonable indication" of criminal activity, but where the FBI possessed information whose responsible handling required some further scrutiny beyond the prompt and extremely limited checking out of initial leads.[20] Preliminary inquiries could use intrusive investigative techniques such as photo and physical surveillance, interviewing the subject, conducting background checks, and using informants, but could not use mail covers, mail openings, and nonconsensual electronic surveillance.[21] Thus, under the old Guidelines, even when the FBI lacked reasonable indication of criminal activity, it could employ nearly the full panoply of investigative techniques available in a full investigation. Terrorism investigations could be initiated when the facts or circumstances reasonably indicated that two or more persons were engaged to in an enterprise for the purpose of furthering political or social goals wholly or in part through activities that involved force or violence and a violation of the criminal laws of the United States.[22]

The Ashcroft Guidelines permit FBI agents to attend every single public meeting or demonstration, from political conventions and demonstrations, to churches. So long as there is a claimed anti-terrorism purpose, nothing in the Ashcroft Guidelines imposes any judicial control, FBI Headquarters control, or even local Special Agent in Command control over this activity. While Attorney General Ashcroft is fond of saying agents may only conduct such surveillance for the purposes of ferreting out terrorism, the Ashcroft Guidelines permit the agent, once there, to collect information about any crime, including those the FBI currently uses as pretexts to detain people in its 9/11 investigation.

Proponents of this change -- permitting the FBI to spy when there is no evidence of a crime -- claim it is necessary because the requirement of evidence tied the hands of the FBI when suspects entered mosques or temples, or other houses of worship. In fact, the old guidelines did not prohibit FBI agents from entering houses of worship; it merely required that the agent be following a lead, or conducting an investigation or preliminary inquiry.[23]

Although the new guidelines say that information obtained from such surveillance must relate to potential criminal or terrorist activity, it is unclear how broad or attenuated that relation must be. The natural tendency is to gather as much information as possible, fitting together bits and pieces of information, many meaningless by themselves, to determine whether a pattern of criminal activity exists.[24] Therefore, the tendency will be to collect more information, rather than less, in the hopes some of this "innocuous" information will be helpful when it comes time to "connect the dots."

The danger of this provision is that the FBI will now be attending religious functions and political rallies to take note of who attends, what they say, and what they do. The administration will have its own taxpayer-financed intelligence arm to inform it of political moves and strategies its opponents may be hatching. Furthermore, the FBI will be wasting money and resources gathering information in situations in which there is no suspicion of any criminal conduct. And, most importantly, this will chill First Amendment activity from worship to free speech.

Internet Spying on Political Activity with Insufficient Oversight

As noted above, the old Domestic Guidelines required that FBI activity be accomplished pursuant to a preliminary inquiry or investigation. The Ashcroft Guidelines allow the FBI to carry out and retain information resulting from general topical research.[25] This includes conducting online searches and accessing online sites and forums as part of such research. Once again, the FBI can use this information to suppress dissent and help cripple political enemies.

The Ashcroft Guidelines define "general topical research" as "research concerning subject areas that are relevant for the purpose of facilitating or supporting the discharge of investigative responsibilities."[26] "It does not include online searches for information by individuals' names or other individual identifiers, except where such searches are incidental to topical research, such as searching to locate writings on the topic by searching under the names of authors who write on the topic, or searching by the name of a party to a case in conducting legal research."[27]

First of all, the FBI has never been prohibited from reading the newspaper or surfing the Internet. For decades, and under the old Domestic Guidelines, it opened preliminary inquiries and investigations based on what agents have read in the newspaper about potential criminal activity.

Second, there is great concern over the types of topics the FBI will be researching. The FBI talks about searching for "anthrax" or "smallpox," neither of which would have been prohibited under the old guidelines, particularly after the initial anthrax scare. Neither of these topics inherently implicates privacy or civil liberties issues. However, it is a whole different matter to search for "Islam," "Pro-life," or "gun rights," and use the results to form the basis for suspicion. And, this new surveillance authority is not limited to searching for information on terrorism.

While the Ashcroft Guidelines say individuals' names or identifiers may only be searched when they are incidental to the topical research, such as finding authors who have written on a particular subject, that provides little protection. "Authors" and "writing" have a much broader connotation on the Internet. For example, one who posts to a chat room or discussion forum may well be considered an "author" who has "written" on the topic for purposes of an FBI search.

Third, searches based on political, ethnic, or religious terms could easily enough be the basis for further round-ups and questioning by a government which has already demonstrated its willingness to indefinitely detain individuals on little or no evidence they have committed a crime, such as "material witnesses."

Finally, this ability to troll for information is unlikely to catch terrorists, because it assumes they will leave behind a trail. The September 11 terrorists left little behind.

On May 8, the Director of the FBI, Robert S. Mueller testified to the Senate Judiciary committee that the 9-11 hijackers "… contacted no known terrorist sympathizers. … The hijackers also apparently left no paper trail. In our investigation, we have not yet uncovered a single piece of paper … that mentioned any aspect of the September 11th plot. As best we can determine, the actual hijackers had no computers, no laptops, no storage media of any kind."

Use of Commercial Data Mining to Snoop on Americans' Buying Habits

Commercial data mining has become a big business. Any time you write check, use a credit card, buy something on credit, make department store purchases, surf the Web, use an e-z pass to buy gasoline or pay a toll, you leave a record. Commercial companies take this information and build profiles, such as who reads Gun Week magazine, or who buys books online about terrorism. Those profiles are then used to send to catalogs, credit cards, spam, and much other information you may not wish to receive.

Under the Ashcroft Guidelines, once again, the FBI will be able to engage in a fishing expedition using these resources. With no evidence that any crime is even contemplated, the FBI can purchase detailed profiles compiled by the data miners. And, once it obtains this information it is entitled to retain possession of it indefinitely.[28] Thus, the FBI may purchase information about you that is incorrect. However, even if you are able to correct the data the data mining company gathered about you, the FBI will still have possession of incorrect data.

There is no provision in either the Ashcroft Guidelines or the law similar to that in the Fair Credit Reporting Act, which would allow an individual access to the information and the ability to correct it. The disadvantage of a data mining company having incorrect information about a person is that the person may receive more spam, credit cards, or unwanted catalogs. The disadvantage of the FBI having incorrect information about a person is that the person may be arrested. In fact, since September 11, the FBI has arrested people based on innocent activity.

Furthermore, some data mining services profile people by race and religion. Allowing the FBI to use this type of information will continue the unacceptable practice of racial profiling. For example, the FBI may use this data to find consumers who are of Middle-Eastern descent to round up and question.

Another clause in the same section permits acceptance and retention of information "voluntarily provided by private entities." This raises the specter of private intelligence gathering by groups who wish to use the FBI to pursue and harass their enemies. For example, anti-abortion groups may supply the FBI with information on their opponents in order to subject them to intrusive investigations.

Permitting Lengthy Preliminary Inquiries and Investigations Even Where No Evidence Is Found

The Ashcroft Guidelines will extend the authorized duration of preliminary inquiries from 90 days to 180 days. They also allow the Special Agent in Charge of field offices to authorize two ninety-day extensions. Thus, preliminary inquiries can now last for up to one year without any meaningful oversight by FBI Headquarters.

Remember, there are few constraints on the FBI in conducting preliminary inquiries. Under the new guidelines, the FBI is empowered to troll for information on the Internet, use commercial data mining services, and attend any public meetings, even when there is no suspicion of crime. This information however, may be used in order to form such a suspicion. Once that occurs, the FBI may use all lawful investigative techniques during the inquiry, with the exception of mail openings and nonconsensual electronic surveillance.[29] This includes physical or photographic surveillance, interviews of potential witnesses, examination of all public records, examination of federal, state, and local government records, interviews of the potential subject, interviews of the complainants, previously established informants, and other sources of information. Thus, with no reasonable indication an individual is involved of criminal activity, the FBI may use in highly intrusive techniques to conduct its preliminary inquiry for up to one year.

Under the old Domestic Guidelines, Racketeering and Domestic Security/Terrorism investigations could last for six months.[30] These are wide-ranging investigations that are less precise than investigations directed at more conventional types of crime. These investigations are of an entire enterprise rather than individual participants in a single criminal act, and seek to determine the scope of the enterprise as well as the relationship of the members. Thus, these investigations are disruptive to a wider range of people and businesses than a conventional criminal investigation. After six months, the FBI had to show that it found some evidence of crime in order to extend the investigation. Under the Ashcroft Guidelines, the FBI will be able to continue an investigation for up to one year, with the full panoply of its investigative powers, even though it found nothing to justify keeping the investigation open.[31]

Both of these changes are open invitations for fishing expeditions. Agents will be allowed to spy on citizens and noncitizens, and gather political intelligence for up to one year with no oversight from FBI Headquarters.

Furthermore, after the fishing expedition, the information stays with the FBI. According to the Ashcroft Guidelines, "the FBI shall maintain a database that identifies all preliminary inquiries and investigations conducted pursuant to these Guidelines and that permits the prompt retrieval of information concerning the status (open or closed) and subjects of all such inquiries and investigations."[32] Therefore, the FBI may engage in a fishing expedition in order to form a suspicion, which then results in a highly intrusive inquiry with no oversight outside of the local field office, for up to one year.

CONCLUSION

By severing the tie between initial FBI surveillance and evidence of crime, the Ashcroft Guidelines fundamentally alter the role of the FBI in our society, and ignore the lessons of its past abuses. Now, the FBI is authorized to attend every public meeting and every demonstration, and to track the Internet activities of groups and individuals in chat rooms and on web sites, even though it lacks even a scintilla of evidence that a crime has been, is being, or may be committed. Similar activity prompted the Congressional action that resulted in adoption of the original Attorney General Guidelines a quarter century ago.

America is changing as a result of the 9/11 attacks, but many of the changes in the Ashcroft Guidelines are unnecessary. In fact, the Ashcroft Guidelines likely have nothing to do with heading off another attack from al Qaeda because its activities are investigated under an entirely different set of investigative guidelines, the Foreign Intelligence Guidelines. Instead, it appears that the FBI is using America's fear of terrorism to dramatically increase its power in areas that have little to do with terrorism. Despite its inability to manage and analyze the information it already gathers, it now wants to gather more information free from the constraints previously imposed. This not only makes the FBI less effective in preventing terrorism, but it chills Americans' freedom to associate and speak without the fear that their associations and speech will end up in an FBI database.


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