The Attorney General’s Guidelines on General Crimes, Racketeering Enterprise and Terrorism Enterprise Investigations govern how FBI agents are authorized to act when conducting investigations or collecting data. By setting out clear procedures, the guidelines seek to protect civil liberties while giving agents clear direction in the field.
Background
Attorney General Edward Levi issued the FBI Domestic Security Guidelines during the Ford administration in 1976. They were enacted in large part to prevent a repeat of the FBI-sponsored abuses that had occurred under J. Edgar Hoover’s counterintelligence operation, COINTELPRO. Examples of FBI abuses during this time included its investigation of Martin Luther King.
Reagan’s Attorney General, William French Smith, made major changes to the guidelines in 1983. Smith lowered the bar for the opening of criminal investigations and created a new standard, the preliminary inquiry, to authorize FBI power when not even a “reasonable indication” of criminal activity existed. Both Attorney General Thornborough (under GHW Bush) and Attorney General Janet Reno (under Clinton) made slight changes to the guidelines.
Foreign/Domestic guidelines
The FBI operates under two sets of guidelines. “Investigations relating to international terrorism, foreign counterintelligence, or foreign intelligence” are conducted under a set of partially classified guidelines known as the foreign guidelines. Domestic investigations are conducted under much more restrictive policies as outlined in the Guidelines on General Crimes, Racketeering Enterprise, and Terrorism Enterprise Investigations.
It is important to note that neither the nationality of those being investigated nor the place in which the suspected criminals operate is used in determining which set of guidelines to operate under. The foreign guidelines are used when investigating agents of foreign powers and international terrorist organizations regardless of where they are operating. Thus, investigations of both Hamas and Al Qaeda use the foreign guidelines even though they are conducted within the United States.
The foreign guidelines give the FBI more room to operate, including the ability to open an investigation without suspicion of a crime having been committed. Merely the suspicion of a connection to a foreign terrorist organization is enough to open an investigation.
Recent Changes to the Guidelines
On May 30, 2002, Attorney General Ashcroft reissued the domestic guidelines, significantly relaxing the restrictions that agents work under. The foreign guidelines were left unchanged. These changes represent a major shift in the way the FBI plans on carrying out investigations. Instead of investigating based on a suspicion of criminal activity, the FBI now has the power to conduct broad fishing expeditions. Specifically, the guidelines:
• Allow the FBI to monitor public activities without suspicion of criminal activities.
• Authorize the collection of data from commercial data mining services without suspicion of criminal activity.
• Extend the length of preliminary investigations to one year.
• Decrease the level of supervision over preliminary inquiries from FBI headquarters to Special Agents in Charge (SAC) who operate in the field.
Liberty Coalition’s Concerns
The new guidelines contain a number of updates to clarify the use of technology. These are welcome changes. By giving agents in the field added clarification, the agency will function better. However, many of the changes to the guidelines reduce national security while endangering civil liberties.
The new guidelines set a standard of terrorism that can easily be used against domestic political groups. The guidelines define terrorism as, “two or more persons whose goals are to achieve political or social change through activities that involve force or violence.” This definition is vague enough to include pro-life, environmental, or second amendment advocates. Reducing the standard of evidence needed to investigate “terrorist” groups gives the FBI wide powers to target groups they decide fit into this category. This sets a dangerous precedent that future Attorney Generals might use in much the same way as Hoover’s COINTELPRO.
The new guidelines will reduce national security by exasperating the FBI’s data management crisis. Under the new guidelines, the FBI is authorized to greatly increase the amount of data it collects. Yet, the FBI has severe issues managing and analyzing the data it already has. It has been unable to disseminate needed information to agents in the field while granting access to those who should not be authorized. Diverting precious resources from productive investigations to data collection that cannot be accurately analyzed or used will reduce national security.
The guidelines contain no restrictions on the sharing of this data with foreign governments. Currently, our intelligence agencies share information with countries such as Pakistan. The new guidelines authorize the collection of massive amounts of data while not putting any procedures in place to ensure this data is shared appropriately.
These new guidelines were changed without Congressional consultation. In all cases, from Levi’s creation through Thornborough’s minor changes, Congressional committees have been notified of the process and been given opportunities to submit input. Ashcroft was the first Attorney General to unilaterally change the guidelines without notifying or consulting with Congress.
Links
FBI Domestic Guidelines
http://www.usdoj.gov/olp/generalcrimes2.pdf
Redacted version of the FBI’s foreign guidelines
http://www.usdoj.gov/ag/readingroom/terrorismintel2.pdf
EPIC’s page on FBI guidelines
http://www.epic.org/privacy/fbi/
Letter to House Judiciary Committee Chairman James Sensenbrenner
http://www.cdt.org/security/usapatriot/020620sensenbrenner.shtml
J. Bradley Jansen’s “Open Letter” to former Attorney General Ashcroft
http://www.libertycoalition.net/ashcroftopenletter
J. Bradley Jansen’s op-ed in the Washington Times (06/26/02)
http://www.libertycoalition.net/guidelinesoped
Prosperity Institute Task Force Report expressing concern about the sharing of data with foreign governments
http://www.prosperity-institute.org/projects/PI-TF-Report.pdf
