New FBI Guidelines Open Door to Further Abuse

September 12, 2008 12:00 am

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ACLU, Other Advocacy Groups Express Concern After Meeting With Department of Justice

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Washington, DC – Following a briefing today at the Department of Justice (DOJ), the American Civil Liberties Union reiterated its deep concern over new guidelines that would govern FBI investigations. The new guidelines would lower standards for beginning “assessments” (precursors to investigations), conducting surveillance and gathering evidence, and would replace existing guidelines for five types of existing guidelines: general criminal, national security, foreign intelligence, civil disorders and demonstrations.

The rewritten guidelines have been drafted in a way to give the FBI the ability to begin surveillance without factual evidence, stating that a generalized “threat” is enough to use certain techniques. Also under the new guidelines, a person’s race or ethnic background could be used as a factor in opening an investigation, a move the ACLU believes will institute racial profiling as a matter of policy. The guidelines would also give the FBI the ability to use intrusive investigative techniques in advance of public demonstrations. These techniques would allow agents to conduct pre-textual (undercover) interviews, use informants and conduct physical surveillance in connection with First Amendment protected activities.

“Issuing guidelines that permit racial profiling the day after the 9/11 anniversary and in the midst of an historic presidential campaign is typical Bush administration stagecraft designed to exploit legitimate security concerns for partisan political purposes. Racial profiling by any other name is still unconstitutional,” said Anthony D. Romero, Executive Director of the ACLU. “The new guidelines offer no specifics on how the FBI will ensure that race and religion are not used improperly as proxies for suspicion, nor do they sufficiently limit the extent to which government agents can infiltrate groups exercising their First Amendment rights. The Bush administration’s message once again is ‘trust us.’ After eight years of historic civil liberties abuses, the American people know better. From the U.S. attorney purges to the abuse of national security letters, the Department of Justice and the FBI have repeatedly shown that they are incapable of policing themselves.”

Both the FBI and DOJ have documented records of internal abuse. Recent DOJ Office of the Inspector General (OIG) reports confirmed long-held suspicions of widespread and systemic abuses of the national security letter statute, and the FBI’s involvement in interrogations at Guantánamo Bay. With no outside oversight and with FBI agents acting autonomously, these new guidelines will likely lead to more unchecked abuse.

“Handing this kind of latitude to an organization already rife with internal oversight problems is a huge mistake,” said Caroline Fredrickson, Director of the ACLU Washington Legislative Office. “Agents will be given unparalleled leeway to investigate Americans without proper suspicion, and that will inevitably result in constitutional violations. Lowering the threshold for unwarranted surveillance and scrutiny allows the FBI to come perilously close to infringing on the First and Fourth Amendments. Our right to protest the government and its policies is not suspicious behavior; it is constitutionally protected speech. Let’s not forget that the reason the FBI adopted internal guidelines was to combat abuse and political spying. They are a direct result of the surveillance of Reverend Martin Luther King, Jr. and others. To forget that legacy and adopt these ill-conceived guidelines would be a travesty.”

Coalition letter sent to Attorney General Mukasey requesting guidelines:

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