FC: Ashcroft releases fact sheet on new FBI investigative guidelines

[Declan McCullagh <declan () well com>]

Previous Politech messages:

"FBI gets more surveillance powers; Cato's Pilon says no problem"
http://www.politechbot.com/p-03591.html

"Analysis of FBI's new surveillance powers, from CDT"
http://www.politechbot.com/p-03603.html

-Declan

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FACT SHEET: INVESTIGATIVE GUIDELINES -- ALLOWING FBI FIELD OFFICES TO 
BETTER DETECT TERRORISM



Attached please find a fact sheet discussing the new investigative 
guidelines announced by the Attorney General on May 30, 2002 which were 
designed to allow FBI field agents new authority to detect and prevent 
terrorism before it occurs.  Copies of the guidelines are available at: 
http://www.usdoj.gov/olp/.





Fact Sheet
Attorney General's Guidelines:
Detecting and Preventing Terrorist Attacks

Understanding the Problem:
Past Investigative Guidelines Have Hampered the FBI
In Conducting Investigations Capable of Preventing Terrorist Attacks

Problem #1: Emphasis on Prosecuting Past Crimes Instead of Preventing 
Future Crime

The previous guidelines emphasized investigation and prosecution of past 
crimes.  They generally barred the FBI from taking the initiative to detect 
and prevent future crimes, unless it learned of possible criminal activity 
from external sources.  As a result, the FBI was largely confined to a 
reactive role.

*General Internet Searches Could Not Be Conducted, Unless Tied to a 
Specific Investigation.  In the past, there was no clear basis for 
conducting online research for counterterrorism purposes-even of publicly 
available information-except when investigating a specific case.  For 
example, FBI agents could not conduct online searches to identify websites 
in which bomb-making instructions or plans for cyberterrorism are openly 
traded and disseminated.

*The FBI Had No Clear Authority To Use Commercial Data Services Any 
Business in America Could Use.  Under previous guidelines, the FBI could 
not use commercial data mining services-entities that collect and analyze 
information on various topics, such as threats to computer systems-unless 
in connection with a particular investigation.  In other words, the FBI was 
sharply limited in its ability to use services that private businesses 
regularly hire to assess threats against them.

*Information Collected in the Earliest Investigative Stages Could Only Be 
Used to Investigate Specific Crimes, Not Groups Suspected of 
Terrorism.  Under the old Guidelines, preliminary inquiries-where agents 
gather information before enough evidence has been uncovered to merit an 
outright investigation-could be used only to determine whether there was 
enough evidence to justify investigating an individual crime.  They could 
not be used to determine whether to open a broader investigation of groups 
involved in terrorism (i.e., "terrorism enterprise investigations").

*Investigations of Criminal Groups Were Impeded by Limits on Scope, 
Duration, and Red Tape.  The previous guidelines impeded the effective use 
of criminal intelligence investigations (i.e., investigations of criminal 
enterprises) by imposing limits on the scope of such investigations, short 
authorization periods, and burdensome approval and renewal requirements.

*No Clear Authority to Visit Public Places that Are Open to All 
Americans.  Under the old guidelines, FBI field agents were inhibited from 
visiting public places, which are open to all other citizens.  Agents 
avoided them not because they were barred by the Constitution, or any 
federal statute, but because of the lack of clear authority under 
administrative guidelines issued decades ago.

Solution #1: Detect and Neutralize Terrorists Before They Attack

The new guidelines reflect the Attorney General's mission for the Justice 
Department's war on terror: to neutralize terrorists before they are able 
to strike, not simply to investigate past crimes.  The revised guidelines 
create new information- and intelligence-gathering authorities to detect 
terrorist plots, and strengthen existing provisions to promote effective 
intervention to foil terrorists' plans.

*Enhancing Information Gathering.  The new guidelines strengthen the FBI's 
intelligence-gathering capabilities by expressly stating that agents may 
engage in online research, even when not linked to an individual criminal 
investigation.  They also authorize the FBI to use commercial data mining 
services to detect and prevent terrorist attacks, independent of particular 
criminal investigations.

*Allowing FBI Field Agents to Use Information Collected in the Earliest 
Stages To Investigate Groups Suspected of Terrorism.  The FBI will be able 
to use preliminary inquiries to determine whether to launch investigations 
of groups involved in terrorism (i.e., "terrorism enterprise investigations").

*Expanding the Scope and Duration of Investigations, and Easing Red Tape 
for FBI Field Agents.  The guidelines will expand the scope of criminal 
intelligence investigations, lengthen their authorization periods, and ease 
the approval and renewal requirements.  This flexibility enhances the FBI's 
terrorism-preventing function and helps the agents in the field.

*Authorizing the FBI to Have Normal Public Access to Public Places.  The 
new guidelines clarify that FBI field agents may enter any public place 
that is open to other citizens, unless they are prohibited from doing so by 
the Constitution or federal statute, for the specific purpose of detecting 
or preventing terrorist activities.  The guidelines do not, and cannot, 
nullify any existing Constitutional or statutory duty to obtain judicial 
approval as required to conduct their surveillance or investigations.


Problem #2: FBI Headquarters Was Responsible for Decision-Making, But 
Lacked the Field Information Needed to Make Sound Decisions

Under the old guidelines, decision-making authority was centralized at FBI 
headquarters, while field offices were largely responsible for intelligence 
analysis.  This reversed the proper order: what was centralized 
(decision-making) should have been devolved, and what was devolved 
(analysis) should have been centralized.

*Previous Guidelines Placed Roadblocks in Front of Agents' 
Investigations.  Before the revisions, FBI field agents were hampered by 
burdensome rules requiring them to secure headquarters' approval before 
launching counterterrorism investigative activities.  As a result, field 
agents lost significant investigative opportunities as they waited for 
headquarters to consider their requests over a period of weeks, or even months.

*FBI Headquarters Lacked the Intelligence and Analysis It Needed.  The 
guidelines contained no clear authority to engage in counterterrorism 
information gathering and analysis, apart from investigations in particular 
criminal cases.  FBI headquarters thus lacked the ability to analyze the 
information necessary to make informed investigative decisions.

Solution #2: Field Offices Are Authorized to Make More Decisions, and FBI 
Headquarters Will Analyze Information

The revised guidelines enhance FBI headquarters' ability to analyze 
critical intelligence information, and enable field offices to make more 
independent investigative decisions.  The revised guidelines centralize 
what should be centralized (analysis), and devolve what should be devolved 
(decision-making).

*Strengthening FBI Headquarters' Intelligence-Gathering and Analysis 
Capabilities.  The revised guidelines allow the FBI to operate 
counterterrorism information systems, and to collect and retain information 
from all lawful sources, including publicly available sources, for that 
purpose.  They also expressly state that all such activities must be based 
on a valid law enforcement purpose, and must be consistent with applicable 
statutes and regulations.  The guidelines prohibit the FBI from using this 
authority to keep files on citizens on the basis of their constitutionally 
protected activities.

*Increasing Decision-Making Authority in the Field.  Special Agents in 
Charge at FBI field offices may now approve and renew terrorism enterprise 
investigations.  (Under the old guidelines only by the Director or an 
Assistant Director at FBI headquarters could approve such 
investigations.)  The revisions also allow a Special Agent in Charge to 
authorize for up to a year preliminary inquiries, which are used to gather 
information about a crime before enough evidence is discovered to justify a 
full investigation.  (The old guidelines only authorized 90-day preliminary 
inquires, and required the approval of FBI headquarters for 30-day extensions.)


Problem #3: Agents Did Not Use Lawful Investigative Methods When 
Investigating Some Suspected Terrorists

The old guidelines lacked clear direction to use lawful, authorized methods 
to prevent terrorism.  As a result, FBI agents have declined to use 
available investigative techniques when investigating crimes committed by 
affiliates of some political and religious organizations.

*The Lack of Clear Authority Frustrated the Sheik Rahman Investigation.  In 
1993, the FBI received intelligence information about terrorist activities 
planned by Sheik Abdel Rahman-who later would be convicted of plotting to 
bomb landmarks in New York City, including the World Trade Center in 
1993.  Because of ambiguity in the then-current guidelines, the FBI did not 
call Rahman before a grand jury, question him, or conduct surveillance of 
his offices or the religious buildings where he met with his co-conspirators.

Solution #3: Investigate Suspected Terrorists on a Neutral Basis

The revised guidelines make clear that investigations of suspected 
terrorists with ties to religious and political organizations will proceed 
according to the principle of neutrality.  As President Bush has noted, our 
enemy is not any one faith or creed, but "a radical network of terrorists."

*Lawful Techniques Can Be Used in All Investigations of Suspected 
Terrorists.  The new guidelines simply clarify that agents who are 
investigating suspected terrorists, even if they have ties to religious and 
political groups, could use the same investigative techniques they would 
use when investigating any other type of organization.  At no time will 
religious or political entities be singled out for special scrutiny, but 
neither will terrorists with ties to such groups be granted effective 
immunity from lawful investigations.

*Investigations Can Only Take Place When There Is Evidence of Criminal 
Activity.  Under the revised guidelines, agents can investigate suspected 
terrorists with ties to religious or political groups only when they are 
acting on the basis of information indicating a possibility of actual 
criminal activity.  All investigative activities must have a legitimate 
law-enforcement purpose; these new tools do not provide the FBI with the 
unlimited authority to conduct investigations of any group.

*Preserving Constitutional and Statutory Limitations.  The work of the FBI 
remains subject to all applicable constitutional and statutory 
limitations.  The guidelines do not, and cannot, authorize the FBI to do 
anything prohibited by the Constitution or federal law.  Instead, they 
impose restrictions on FBI investigative activities that supplement other 
legal limits.  The guidelines expressly state that:  "All requirements for 
the use of such methods under the Constitution, applicable statutes, and 
Department regulations or policies must, of course, be observed."  [General 
Investigations Guidelines, Introduction, § C]

*Protecting Constitutional Rights.  The guidelines stress that the FBI may 
not use investigative activities as a pretext for suppressing suspects' 
constitutional rights.  As the guidelines expressly state, "It is important 
that such investigations not be based solely on activities protected by the 
First Amendment or on the lawful exercise of any other rights secured by 
the Constitution or laws of the United States."  (General Investigations 
Guidelines, May 29, 2002)


Maintaining Limitations on Undercover Operations:

The revised guidelines maintain, and in some respects strengthen, the 
strict and extensive requirements necessary to justify an undercover 
investigation that involves infiltration of suspected terrorist groups.

Field Agents Continue to Have Extensive Certification Requirements.  When 
applying to conduct such an undercover operation, FBI agents must, among 
other things, provide headquarters with:
1.A certification that the operation will be conducted with minimal intrusion;
2.A statement as to why the undercover operation is necessary;
3.A description of the procedures that will be used to minimize the 
acquisition of information that is not relevant to the investigation; and
4.An explanation of how any potential constitutional concerns and any other 
legal concerns have been addressed.

To secure approval for such an undercover operation, FBI agents must also 
obtain:
1.A letter of concurrence from the appropriate federal prosecutor;
2.Review of the proposed operation by the Undercover Review Committee 
(composed of FBI and Criminal Division personnel);
3.Approval of the operation by the FBI Director, Deputy Director, or a 
designated Executive Assistant Director; and
4.Authorization of the undercover operation for a limited period, not to 
exceed six months.

(General Investigations Guidelines, Part III.B(1)(a), (4); Undercover 
Operations Guidelines, Part IV.A-B, .C(2)(l), .D, .E(1), .F-G.)




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