On September 13, 2008, the FBI and the Department of Justice announced new guidelines that would lower standards for beginning "assessments" (precursors to investigations), conducting surveillance and gathering evidence, and would replace existing guidelines for five types of existing guidelines: general criminal, national security, foreign intelligence, civil disorders and demonstrations. A transcript from a meeting between Department of Justice officials appeared for release on the DOJ website, although the guidelines themselves have not yet been released.
Starting October 1, 2008, the FBI would be able to begin surveillance, begin harvesting informants, and conduct undercover interviews all with little or no evidence. The guidelines would also permit race or ethnicity to be a factor that can be considered in starting an investigation.
The ACLU and various other groups met with the FBI to go over the guidelines which will govern investigations into, among other things, national security, civil disorders and demonstrations. The ACLU and other civil rights groups expressed concern with the new guidelines. Read the release for the details.
"Issuing guidelines that permit racial profiling the day after the 9/11 anniversary and in the midst of an historic presidential campaign is typical Bush administration stagecraft designed to exploit legitimate security concerns for partisan political purposes. Racial profiling by any other name is still unconstitutional," said Anthony D. Romero, Executive Director of the ACLU. "The new guidelines offer no specifics on how the FBI will ensure that race and religion are not used improperly as proxies for suspicion, nor do they sufficiently limit the extent to which government agents can infiltrate groups exercising their First Amendment rights. The Bush administration's message once again is 'trust us.' After eight years of historic civil liberties abuses, the American people know better. From the U.S. attorney purges to the abuse of national security letters, the Department of Justice and the FBI have repeatedly shown that they are incapable of policing themselves."
One Senior FBI official explained it as a power they always had, now consolidated:
"Just one -- there’s been some sense that -- and I can envision how this might be played is that these AG guidelines are giving the FBI sweeping new powers. We’re not getting any new power. This is power. I mean surveillance -- you all do surveillance. There’s no new power there. You’re just watching people. We’re not talking about a wiretap here. We’re talking about physically watching someone. There’s no pretext interview, which is not being completely candid about the purpose of the interview. That’s not a new power. We could always do that. It’s just moving it or allowing it to be used as a matter of AG policy in a different area, but there’s not -- this is not a new power that the FBI has been given by virtue of the AG guidelines, the consolidated AG Guidelines, that we didn’t previously have."
While they may be "just watching people", keep in mind that most likely the FBI agents have already been trained in these new investigative techniques. This week, FBI Director Mueller will be testifying/explaining himself before both the House and Senate Judiciary Committees. More information should be forthcoming in the next week as the public learns more about these techniques. Keep vigilant to look for these new guidelines; they should be available in discovery or as a Freedom of Information Request as the FBI puts them to use.
For more information and possible live blogging this week from ACLU, click here.