WEDNESDAY 30 SEPTEMBER 2009
NEWS
Bush-Era Rule Grants FBI Unprecedented Investigative Powers
Tuesday 21 April 2009
by: Daphne Eviatar | The Washington Independent
A Somali Muslim during Friday prayers. The Bush administration granted the FBI wide-ranging authority to investigate individuals or groups, regardless of whether they are suspected of criminal activity. Somali Muslims are one group that has been targeted by the FBI without evidence of criminal activity. (Photo: Robert Cohen / St. Louis Post-Dispatch)
FBI authority extends even to those not suspected of criminal activity.
Veterans groups and conservatives roared last week when news broke that the FBI was targeting veterans in a broad probe of extremist groups. But little noise was made in December, when the Bush administration quietly granted the FBI wide-ranging authority to investigate individuals or groups, regardless of whether they are suspected of criminal activity.
The Attorney General Guidelines, proposed last summer and adopted by Attorney General Michael Mukasey, appear to be particularly problematic. Although in the past these guidelines required that the FBI have at least some factual basis for believing that the target of an investigation was engaged in criminal activity, in December 2008, Mukasey instituted new guidelines that authorized the FBI to conduct "assessments" of suspects without requiring any factual basis for suspicion.
Specifically, the Mukasey guidelines, purportedly "to prevent future terrorist acts against the American people," allow the FBI to use physical surveillance; interview a person's neighbors, landlord, colleagues or friends; recruit and assign informants to attend political or other meetings under false pretenses - essentially to act as an undercover spy; and to retrieve personal data from commercial databases; all without having a factual basis to believe that the target of the investigation has done anything wrong.
"I'm a former FBI agent and I can tell you it's beyond bizarre," said Michael German, policy counsel on National Security, Immigration and Privacy with the American Civil Liberties Union, and a 16-year veteran of the FBI.
The Attorney General Guidelines were first created in 1976 in the wake of the revelation of intelligence and law enforcement abuses during the Watergate era and revealed by the Church Committee. "The guidelines always required articulable facts to support a reasonable suspicion that someone was violating the law," said German. "That's a very low standard."
Similarly, the Code of Federal Regulations has long required that state and local law enforcement agencies receiving federal funding "collect information concerning ain individual only if there is reasonable suspicion that the individual is involved in criminal conduct or activity and the information is relevant to that criminal conduct or activity."
Reasonable suspicion is much less than the standard for an arrest, which requires "probably cause."
"But you need to articulate why you think this person deserves your attention," said German. "I would say to FBI agents, if you can't articulate why you're investigating this person then you probably shouldn't be out there."
Under this new "assessments" authority, however, the FBI can recruit informants and send them, undercover, into any organization to spy on them. To critics, that seems eerily reminiscent of FBI counter-intelligence programs in the 1960s and early 70s, used to spy on political leaders and organizations that the government considered radical, such as the Rev. Martin Luther King, Jr.
"This is very intrusive behavior," says German. "They can get Grand Jury subpoenas for your telephone records, even though they don't actually suspect you of doing anything wrong. It could be just for the purpose of determining whether you'd be a good informant."
FBI agents can also interview an individual's friends or co-workers. "Being under investigation does not come without risks," said German. "When the FBI is going and interviewing your landlord and your banker and your friends it can cause great harm to come to you even absent your ultimate arrest. Not to mention legal expenses to defend yourself."
The recent change in the Attorney General Guidelines parallel other changes made after September 11, when the federal government began broad wiretapping and other data collection programs, some authorized by the USA Patriot Act. But the Attorney General Guidelines, covering FBI investigations, can be amended by the Attorney General alone, and unlike federal legislation don't require the approval of Congress. The latest amendments are therefore much broader than what federal legislation allows state and local law enforcement authorities receiving federal funding to do, for example, which is covered by the Code of Federal Regulations.
Whether these expanded powers are effective, however, is not at all clear. As the government has scaled up its surveillance operations, the number of prosecutions for FBI international terrorism cases has steadily declined. What's more, according to a recent ACLU report, the DOJ declined to prosecute 87 percent of the international terrorism cases that the FBI referred for prosecution. "Only a tiny fraction of the many thousands of terrorism investigations the FBI opens each year are even referred for prosecution," writes the ACLU in its March 2009 report on the USA Patriot Act, "thereby demonstrating that the vast majority of the FBI's terrorism-related investigative activity is completely for naught - yet the FBI keeps all of the information it collects through these dubious investigations, forever."
That hasn't stopped the Justice Department from expanding the FBI's powers over the last seven years, however.
Beginning under Attorney General John Ashcroft, the guidelines were amended to allow longer preliminary investigations of suspects, and allowed the FBI to conduct investigations up to an entire year without requiring even a "reasonable indication" that they were engaged in criminal activity. The only things not allowed by these investigations were opening the subject's mail and electronic surveillance. Still, the Ashcroft guidelines required at least "information or an allegation which indicates the possibility of criminal activity."
That requirement was removed under Attorney General Michael Mukasey.
When Mukasey announced that he was considering changing these guidelines, some members of Congress objected. In August 2008, Sens. Russ Feingold, Dick Durbin and Ted Kennedy wrote a letter to Mukasey expressing their concerns "about the extent to which such authority might, for example, permit the FBI to conduct long-term physical surveillance of an innocent American citizen; interview such an individual's neighbors and professional colleagues, including based on a "pretext" or misrepresentation; recruit human sources to provide information on that individual; or conduct commercial database searches on that individual - all without any basis for suspicion."
"We are particularly concerned that the draft guidelines might permit an innocent American to be subjected to such intrusive surveillance based in part on race, ethnicity, national origin, religion, or on protected First Amendment activities," the Senators wrote.
A coalition of nearly 40 organizations representing civil liberties, religious freedom and other interests also sent a letter to Mukasey at the time seeking more information and objecting that the guidelines would expand the scope of the FBI's powers "to an unprecedented degree."
Their objections appear to have had no influence, however, because the proposed changes were adopted in December 2008, just weeks before Mukasey left office.
As Caroline Fredrickson, director of the ACLU's legislative office in Washington said in written testimony submitted to a Senate Judiciary Committee hearing on national security and civil liberties on Tuesday: "The new Guidelines explicitly authorize the surveillance and infiltration of peaceful advocacy groups in advance of demonstrations, and they do not clearly prohibit using race, religion, or national origin as factors in initiating assessments."
Because of the secrecy of the investigations, little is known about how they've been used so far, says German. But such information could be shared with other law enforcement agencies at "fusion centers" around the country that are designed to encourage information-sharing among law enforcement. Recent fusion center reports have encouraged law enforcement to monitor educational institutions and religious and political organizations to detect possible "radical" behavior.
The recent news about Operation Vigilant Eagle and the broad-based surveillance of extremist groups provides one example of how the FBI might be using that power.
Mike German, the former FBI agent, summed up the attitude behind the rule this way: "There isn't any crime, but we're going to do this broad review because potentially crime is a possibility."
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COMMENTS
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What veterans groups were
Wed, 04/22/2009 - 14:14 — NYCartist (not verified)
What veterans groups were targeted? The FBI was doing such things against peace groups, as well as political groups in the 1960s, called COINTELPRO. The article, I think, only goes back to Watergate abuses, not earlier, by the FBI. The Church Committee was about the FBI abuses in more than cited.
Does anyone remember
Wed, 04/22/2009 - 14:54 — Anonymous (not verified)
Does anyone remember Spielberg's movie "Minority Report"? Remember the "Department of Pre-Crime" (or a similar name)? Obviously, these regulations are bogus and need to be eliminated instantly. It's also worth noting that the police state mentality seems widespread in the US government and not just in its leadership.
I'll believe this
Wed, 04/22/2009 - 15:12 — Anonymous (not verified)
I'll believe this "investigative" technique actually works when we stop having mass shootings in this country. I am so SICK of the weekly reports of some lunatic opening fire on a bunch of strangers. If that's not terrorism, I don't know what is. We act like here in the US we're sooooo above the low brutality of suicide bombers. In my opinion, there is no difference between suicide bombers and rampage shooters. They are terrorists, and if we can't see that coming then none of these laws are any good and the FBI and the NSA need to butt out of the activities of ordinary Americans.
These actions only subject
Wed, 04/22/2009 - 16:35 — Anonymous (not verified)
These actions only subject everyone to the abuse of government. They are anti-freedom and essentially just un-American. It is WAY too easy for some "government official" to abuse that power. Think of officials targeting individuals for a review by the IRS -- this stuff is much more insidious. Spying on American citizens just because we CAN is a lousy reason to do it. Government will always abuse power since absolute power corrupts absolutely. Just look at the actions of George W. Bush -- well, we cannot because all that is still mostly secret, and for our protection. Yeah, right.
Welcome to the Fourth Reich,
Wed, 04/22/2009 - 16:53 — Curt (not verified)
Welcome to the Fourth Reich, where if you are not The Government, and not a mouthpiece for The Government, you are the enemy. This on top of the MCA and the USA (Un)Patriot Act! We are a police state. And the exclusion of permission for the FBI to monitor your electronic communications? Don't worry, the NSA intercepts all of those and shares them with the FBI so they don't need to.
I hope Eric Holder rescinds
Wed, 04/22/2009 - 18:40 — Swan (not verified)
I hope Eric Holder rescinds these policies and makes a new set of guidelines which are more in line with our civil liberties. As far as which veterans groups are targeted - I suspect veterans anti-war groups were targeted. Although mainstream media has not covered it well, IMO, military members who opposed the wars [either their purpose or execution] have been growing in numbers and networking. And when it comes to mass shootings on our own soil - the politicized justice department under Gonzales was not interested - especially since Americans are quite complacent as a whole, regarding gun violence - and until voters who want solutions are significant enough to matter, neither will domestic terrorism.
We have the sense to be
Wed, 04/22/2009 - 20:48 — nora (not verified)
We have the sense to be ashamed of McCarthy witch hunts. What is happening now is so very much worse than the lives destroyed by mob hysteria legalized: because they can. (The last woman tried for witchcraft was in 1952. Are we ashamed of that Salem? Apparently not).
The way folks write it, "USA
Thu, 04/23/2009 - 01:48 — Lee Veal (not verified)
The way folks write it, "USA Patriot Act", it evokes the ideas of the good 0l' United States of America (USA) and patriotism. What many don't remember is that the USA PATRIOT Act, which took us several giant steps toward fascism, was an acronym that letter for letter stood for Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act. Arguably, it was the worst piece of legislation ever passed by our 'illustrious leaders' (or maybe 'illiterate leaders' is a better way to refer to them since most legislators never read it). Why am I even bothering saying this, well, it's because the USA PATRIOT Act is not what its wording says it is. Instead it is and has done exactly as I renamed it years ago, an Act that "Unjustly Subjugates Americans by Pretending All Troubles Result from Imaginary Outside Terrorists." The biggest source of 'terrorism' that plagues the citizens of the United States is not from the Outside, it's from the terrorist on the inside. BushCo spent most of its 8 years terrorizing the US public by slapping us with one 'fear-mongering' practice after another, and ALL in the name of protecting us. BushCo should be ashamed of authoring such a bill. Both Houses of Congress should be ashamed for passing it, W should be ashamed for signing it into law and last but far from least, the Supreme Court should be ashamed of not striking it down the day that W signed it. All of them are to blame and all of them should be ashamed, all of them should be held accountable. Repealing this awful act will be a giant step or two or three in the correct direction.
A further comment (14:54):
Thu, 04/23/2009 - 14:51 — Anonymous (not verified)
A further comment (14:54): Lee Veal above is absolutely right. It's worth noting that 66 House members and one senator voted against the "patriot act" (small letters intentional). The rest of the "Congress" disgraced itself.
What is truly criminal is
Fri, 04/24/2009 - 18:29 — Floresta (not verified)
What is truly criminal is the fact that the 500 FBI agents tasked to investigate white collar fraud were NEVER replaced after 9/11. Welcome to the financial crimes of banking and financial malfeasance of today that are STILL occurring as I write this! Please remember, my dear fellow cictizens, that WE still have the power to turn this Titanic around; do something!
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