[News] ACLU Condemns New FBI Guidelines
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 FBIs and DOJs 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 persons 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 FBIs improperly using
race and religion as grounds for suspicion. They
also fail to sufficiently prevent the government
from infiltrating groups whose viewpoints it
doesnt 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 DOJs
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
its inevitable we will all become suspects.
U.S. Department of Justice
For Immediate Release
October 3, 2008
TDD (202) 514-1888
Fact Sheet: Attorney General Consolidated
Guidelines for FBI Domestic Operations
The new consolidated guidelines to govern the
FBIs domestic operations will address in a
comprehensive way the FBIs investigation of
crimes and threats to the national security and
its collection of foreign intelligence; the FBIs
provision of assistance and information to other
agencies; and the FBIs 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 FBIs mission,
emphasizing early detection, prevention and interagency cooperation.
The consolidated guidelines ensure that the FBIs
operating rules are consistent with the Bureaus
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
FBIs status as a full-fledged intelligence
agency and member of the U.S. Intelligence
Community, providing more comprehensive and
adequate treatment of the FBIs 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
FBIs 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 FBIs 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 FBIs 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
into guesswork. And as our review demonstrates,
the Intelligence Communitys human and technical
intelligence collection agencies have collected
far too little information on many of the issues we care about most.
* [I]ntelligence collection
positioned to be reactive rather than proactivewhen it needs to be both.
* Ensuring continuing coordination
between the FBIs two halves is critical for at
least two reasons: such coordination is necessary
to optimize the FBIs 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 targets 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
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
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 Generals 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 Departments
National Security Division, and the FBIs
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 Departments Criminal
Division, United States Attorneys Offices, and
Office of Privacy and Civil Liberties, and the
FBIs 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
522 Valencia Street
San Francisco, CA 94110
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