[News] ACLU Condemns New FBI Guidelines

Anti-Imperialist News news at freedomarchives.org
Mon Oct 6 18:46:57 EDT 2008

FBI Press Release & Guidelines Follow

ACLU Condemns New FBI Guidelines


<http://www.webwire.com/>WEBWIRE – Monday, October 06, 2008

Washington, DC – New FBI guidelines governing 
investigations were released today after being 
signed by Attorney General Michael Mukasey. The 
American Civil Liberties Union quickly blasted 
the Department of Justice and FBI for ignoring 
calls for more stringent protections of 
Americans’ rights. The guidelines replace 
existing bureau guidelines for five types of 
investigations: general criminal, national 
security, foreign intelligence, civil disorders 
and demonstrations. The ACLU has been vocal in 
its disapproval of the overly broad guidelines, 
citing both the FBI’s and DOJ’s documented records of internal abuse.

The new guidelines reduce standards for beginning 
“assessments” (precursors to investigations), 
conducting surveillance and gathering evidence, 
meaning the threshold to beginning investigations 
across the board will be lowered. More troubling 
still, the guidelines allow a person’s race or 
ethnic background to be used as a factor in 
opening an investigation, a move the ACLU 
believes may institute racial profiling as a matter of policy.

“The attorney general today gave the FBI a blank 
check to open investigations of innocent 
Americans based on no meaningful suspicion of 
wrongdoing,” said Anthony D. Romero, Executive 
Director of the ACLU. “The new guidelines provide 
no safeguards against the FBI’s improperly using 
race and religion as grounds for suspicion. They 
also fail to sufficiently prevent the government 
from infiltrating groups whose viewpoints it 
doesn’t like. The FBI has shown time and time 
again that is incapable of policing itself and 
there is good reason to believe that these 
guidelines will lead to more abuse.”

The FBI originally adopted internal guidelines in 
the mid-1970s after investigations showed 
widespread abuses and violations of 
constitutional rights by the agency, including 
the politically-motivated spying on figures like 
Martin Luther King, Jr. Ironically, these newly 
revised guidelines could open the bureau up to 
exactly that kind of abuse once more. Though the 
DOJ and FBI Director Robert Mueller have 
consistently claimed that the new guidelines 
would not give agents new authority, the previous 
guidelines governed very different types of 
investigations, and tearing down the walls 
between them will invariably mean that new powers 
will be applied where they were not before.

Last month, the ACLU formally requested the DOJ’s 
Office of the Inspector General investigate 
current abuses of the attorney general 
guidelines. The investigation should particularly 
examine the manner in which the FBI uses race, 
religion, national origin or First Amendment 
protected activities in determining whether to 
initiate, expand or continue an investigation.

“Attorney General Mukasey has decided to 
implement these disastrous guidelines against the 
protests of members of Congress, privacy groups 
and the American public,” said Caroline 
Fredrickson, Director of the ACLU Washington 
Legislative Office. “It is naïve to think these 
guidelines will not result in abuse. Though the 
DOJ and FBI claim they are doing what they must 
to meet the law enforcement needs of the future, 
they are only doomed to repeat the abuses of the 
past. Since, under these guidelines, a 
generalized ‘threat’ is enough to begin an 
investigation, the FBI will be given carte 
blanche to begin surveillance without factual 
evidence. The standard of suspicion is so low and 
the predicate for investigations so flimsy that 
it’s inevitable we will all become suspects.”


Press Release

U.S. Department of Justice
For Immediate Release
October 3, 2008

(202) 514-2007
TDD (202) 514-1888

Fact Sheet: Attorney General Consolidated 
Guidelines for FBI Domestic Operations

The new consolidated guidelines to govern the 
FBI’s domestic operations will address in a 
comprehensive way the FBI’s investigation of 
crimes and threats to the national security and 
its collection of foreign intelligence; the FBI’s 
provision of assistance and information to other 
agencies; and the FBI’s intelligence analysis and planning functions.

The consolidated guidelines provide uniform 
standards, to the extent possible, for all FBI 
domestic investigative activities and 
intelligence gathering activities. They are 
designed to provide a single, consistent 
structure that applies regardless of whether the 
FBI is seeking information concerning federal 
crimes, threats to national security, foreign 
intelligence matters or some combination of 
these. Previously, different sets of guidelines 
applied in different investigative areas despite 
their often overlapping purposes and prescribed 
different standards and procedures for essentially similar activities.

The new guidelines replace five existing sets of 
guidelines that separately addressed criminal 
investigations generally, national security 
investigations, and foreign intelligence 
collection, among other matters. In contrast to 
previous guidelines, the new guidelines are 
generally unclassified, providing the public with 
ready access in a single document to the basic 
body of operating rules for FBI activities within the United States.

These guidelines also reflect an extensive 
consultation process that has included three 
oversight hearings, numerous formal and informal 
briefings with members of Congress and their 
staffs, and outreach to interested civil 
liberties organizations and religious groups.

The guidelines support the FBI’s mission, 
emphasizing early detection, prevention and interagency cooperation.

The consolidated guidelines ensure that the FBI’s 
operating rules are consistent with the Bureau’s 
mission and current operational needs while at 
the same time protecting the privacy and civil 
liberties of Americans. The guidelines are the 
latest step in moving beyond a reactive model 
(where agents must wait to receive leads before 
acting) to a model that emphasizes the early 
detection, intervention, and prevention of 
terrorist attacks and other criminal activities. 
The consolidated guidelines also reflect the 
FBI’s status as a full-fledged intelligence 
agency and member of the U.S. Intelligence 
Community, providing more comprehensive and 
adequate treatment of the FBI’s intelligence 
collection and analysis functions, and its 
assistance to other agencies with 
responsibilities for national security and intelligence matters.

Following the 9/11 attacks, the Attorney General 
revised the principal guidelines governing the 
FBI’s criminal investigation, national security 
investigation, and foreign intelligence 
collection activities successively in 2002, 2003, 
and 2006. The current consolidated guidelines 
carry forward and complete this process in 
relation to the FBI’s operations within the United States.

The guidelines are consistent with 
recommendations of three major national advisory 
bodies and studies that the FBI become a more 
flexible and adept collector of intelligence.
    * 9/11 Commission Report (issued July 2004):

        * “ A ‘smart’ government would integrate 
all sources of information to see the enemy as a 
whole. Integrated all-source analysis should also 
inform and shape strategies to collect more 
The importance of integrated, 
all-source analysis cannot be overstated. Without 
it, it is not possible to ‘connect the dots.’”
        * “Instead of facing a few very dangerous 
adversaries, the United States confronts a number 
of less-visible challenges that surpass the 
boundaries of traditional nation-states and call 
for quick, imaginative, and agile responses.”
        * “Countering transnational Islamic 
terrorism will test whether the U.S. government 
can fashion more flexible models of management 
needed to deal with the twenty-first-century world.”
        * “FBI employees need to report and 
analyze what they have learned in ways the Bureau has never done before.

    * ”Weapons of Mass Destruction Commission Report (issued March 2005):

        * “ [C]ontinuing coordination
necessary to optimize the FBI’s performance in 
both national security and criminal 
.[The] new reality requires first 
that the FBI and other agencies do a better job 
of gathering intelligence inside the United 
States, and second that we eliminate the remnants 
of the old ‘wall’ between foreign intelligence 
and domestic law enforcement. Both tasks must be 
accomplished without sacrificing our domestic 
liberties and the rule of law, and both depend on 
building a very different FBI from the one we had on September 10, 2001.”
        * “ The collection of information is the 
foundation of everything that the Intelligence 
Community does. While successful collection 
cannot ensure a good analytical product, the 
failure to collect information
turns analysis 
into guesswork. And as our review demonstrates, 
the Intelligence Community’s human and technical 
intelligence collection agencies have collected 
far too little information on many of the issues we care about most.”
        * “ [I]ntelligence collection
is usually 
positioned to be reactive rather than proactive­when it needs to be both.”
        * “Ensuring continuing coordination 
between the FBI’s two halves is critical for at 
least two reasons: such coordination is necessary 
to optimize the FBI’s performance in both 
national security and criminal investigations, 
and­equally important­it will help ensure 
continued attention to civil liberties and legal 
limits on the power of government to intrude into the lives of citizens.”
        * “The Intelligence Community must be as 
agile and flexible as their target’s travel plans.”

    * Joint Inquiry into Intelligence Community 
Activities before and after the Terrorist Attacks 
of September 11, 2001 (issued December 2002):

        * “ [Counterterrorism] strategy 
encompass specific efforts to
enhance the 
depth and quality of domestic intelligence 
collection and analysis
.[T]he FBI should 
strengthen and improve its domestic 
[intelligence] capability as fully and 
expeditiously as possible by immediately 
instituting measures to
significantly improve 
strategic analytical capabilities
        * [L]ong-term counterterrorism investment 
should be accompanied by sufficient flexibility, 
subject to congressional oversight, to enable the 
Intelligence Community to rapidly respond to altered or unanticipated needs[.]

The guidelines protect privacy and civil liberties.

The new consolidated guidelines issued by the 
Attorney General contain numerous privacy and civil liberty protections.
    * The guidelines state that “it is axiomatic 
that the FBI must conduct its investigations and 
other activities in a lawful and reasonable 
manner that respects liberty and privacy and 
avoids unnecessary intrusions into the lives of law-abiding people.”
    * All activities must comply with the 
Constitution and all applicable statutes, 
executive orders, Department of Justice 
regulations and policies, and Attorney General guidelines.
    * The consolidated guidelines prohibit the 
FBI from investigating, collecting, or 
maintaining information on United States persons 
solely for the purpose of monitoring activities 
protected by the First Amendment or the lawful 
exercise of other rights secured by the 
Constitution or laws of the United States.
    * These guidelines, which will work in tandem 
with the Attorney General’s Guidance Regarding 
the Use of Race by Federal Law Enforcement 
Agencies (issued in 2003), prohibit opening an 
investigation based solely on an individual's race, ethnicity, or religion.
    * The consolidated guidelines require the use 
of the least intrusive investigative methods 
feasible, taking into account the effect on 
privacy and civil liberties and the potential damage to reputation.
    * The guidelines direct FBI agents to operate 
openly and consensually with U.S. persons to the 
extent practicable in collecting foreign 
intelligence that does not concern criminal 
activity or threats to the national security.

The guidelines incorporate effective oversight measures to ensure compliance.

The new guidelines incorporate effective 
oversight measures that provide the responsible 
components and officials at the Justice 
Department and FBI with relevant information on 
an in-depth and comprehensive basis.
    * The Oversight Section in the Department’s 
National Security Division, and the FBI’s 
Inspection Division, Office of General Counsel, 
and new Office of Integrity and Compliance 
monitor compliance with the guidelines. The 
consolidated guidelines recognize and incorporate 
the roles of these components.
    * The guidelines require notification and 
reports to the National Security Division 
concerning the initiation of national security 
and foreign intelligence activities in various 
contexts and authorize the Assistant Attorney 
General for National Security to requisition 
additional reports and information concerning such activities.
    * Many other Department components and 
officials are involved in ensuring that 
activities under the guidelines are carried out 
in a lawful, appropriate, and ethical manner, 
including the Justice Department’s Criminal 
Division, United States Attorneys’ Offices, and 
Office of Privacy and Civil Liberties, and the 
FBI’s Privacy and Civil Liberties Unit.
    * The consolidated guidelines require the 
reporting of sensitive matters to relevant 
officials within the Department. For example, the 
FBI must notify the United States Attorney or 
other appropriate Department official concerning 
matters involving a domestic public official, 
political candidate, religious or political 
organization, prominent individuals within those 
groups, or the news media. The National Security 
Division must be notified when the FBI initiates 
full investigations of U.S. persons relating to 
national security threats, among other 
notification and reporting requirements.
    * Before the consolidated guidelines become 
effective on December 1, 2008, the FBI and other 
affected Justice Department components will carry 
out comprehensive training to ensure that their 
personnel understand these new rules and will be 
ready to apply them in their operations.  The FBI 
will also develop appropriate internal policies 
to implement and carry out the new guidelines.

Consultation with external organizations improved the guidelines.

Throughout the consultation process, the 
Department received numerous recommendations to 
clarify and, in some cases, change the draft 
guidelines. The Department has incorporated the 
majority of suggestions that it received, including:
    * First and foremost, concerns were raised 
that, in the process of incorporating the 1976 
guidelines on Civil Disorders and Demonstrations, 
valuable safeguards for civil liberties had been 
lost.  The new guidelines include significant 
changes when compared to the draft consolidated 
guidelines in terms of the techniques allowed, 
approval levels required, a time limit and the scope of the investigations.
    * The guidelines also have been clarified to 
ensure that agents know that the list of 
techniques available at the assessment stage is 
exclusive; that the requirement to respect First 
Amendment activities and the lawful exercise of 
other rights applies at the assessment stage as 
well as to predicated investigations; that the 
directive to operate openly and consensually with 
United States persons when collecting foreign 
intelligence is a requirement; and that the 
authorities granted in the Foreign Intelligence 
Surveillance Act (FISA) Improvements Act of 2008 
are available only in the course of a full investigation.

To view selected documents please visit 

Freedom Archives
522 Valencia Street
San Francisco, CA 94110

415 863-9977

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