The Justice Department unveiled a set of proposed guidelines designed to loosen restrictions on how Federal Bureau of Investigation agents conduct preliminary national-security investigations.FBI and Justice Department officials say changes to the so-called Attorney General's Guidelines, set to take effect Oct. 1, are aimed at removing limitations that hampered national-security investigations, or that made it difficult for FBI agents to comply with legal rules.
The guidelines allow FBI agents to open "threat assessments," which are lower-level investigations that are based only on having a "purpose," and not necessarily any factual reason to do so. In these investigations, agents would be able to conduct "pretext interviews," without identifying themselves as FBI agents. The rules also loosen restrictions on agents being able to use physical surveillance, solicit new informants or assign informants to seek information without high-level approval.
Civil-rights groups and congressional critics have raised concerns about the proposed rules, charging that they open the way to potential civil-liberties violations. They also raised the prospect that the FBI could repeat abuses similar to those found in a Justice Department internal investigation into administrative subpoenas known as national-security letters. In 2006 and 2007, investigators reported widespread abuses of the national-security letters, which the FBI can issue without a judge's approval, to obtain private records, such as credit-report information and telephone records. Since then, the FBI has established new measures to ensure agents comply with legal requirements for such letters.
On Friday, senior FBI and Justice Department officials conducted briefings for civil-rights groups and journalists about the proposed guidelines, setting strict rules for those attending. The officials provided numbered copies of the roughly 50-page draft guidelines and allowed those in the briefing to read the document for 30 minutes before they were allowed to ask questions. Officials said the documents were still considered "drafts," and journalists were prohibited from quoting specific portions of the guidelines or from naming the officials who conducted the briefing.
An FBI official who conducted the briefing said the bureau wanted one new set of guidelines to replace three previous sets that separately detailed the tactics allowed in criminal probes, national-security investigations and foreign-intelligence operations.
The official said the current rules made it difficult for agents conducting a terrorism probe to use certain tactics in a preliminary investigation, such as conducting interviews without identifying themselves as FBI agents. If the agent were conducting a criminal investigation, the restriction wouldn't apply, the official said.
"Why, as a matter of policy, do we want to make it more difficult for agents trying to resolve national-security threats than we do to resolve the garden-variety criminal threat? We didn't see that these distinctions made sense," the official said.
The FBI has briefed members of Congress on the guidelines in recent weeks, though concerns held by lawmakers have not been resolved.
In a letter last month to Attorney General Michael Mukasey, the top Democratic and Republican members of the Senate Judiciary Committee insisted that the guidelines be delayed from enactment until lawmakers could question FBI Director Robert Mueller at a hearing next week.
"Efforts to harmonize the rules governing criminal and national-security matters also raise potential civil-liberties concerns, given the broader latitude currently given to investigators to consider race and ethnicity in national-security matters," the senators wrote in their letter.
Caroline Fredrickson, director of the American Civil Liberties Union's Washington legislative office, who attended the Friday briefing, said removing the distinction between criminal and national-security investigations "allows for racial-profiling without question." Previously, the use of racial-profiling was restricted to certain national-security investigations, such as those involving an imminent threat.
Brian Roehrkasse, a Justice Department spokesman, said it was "not responsible" to argue that race can never be taken into account during an investigation. He said the FBI, as it conducts more intelligence work, is sensitive to the question of race and religion.
The new guidelines would replace ones put in place in 2002 with little public discussion. An FBI official said the new rules are crucial to helping the bureau become "an intelligence-driven agency that is not waiting for things to fall on our doorstep, but actually looking proactively for threats within the country."
By: Evan Perez
Wall Street Journal; September 13, 2008
