FC: Ashcroft on new investigation rules: FBI has been "frustrated"

[Declan McCullagh <declan@well.com>]

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Remarks of Attorney General John Ashcroft
(Note: The Attorney General Often Deviates from Prepared Remarks)

Attorney General Guidelines
May 30, 2002
		 		
	In its 94-year history, the Federal Bureau of Investigation has been many 
things -- the defender of the nation from organized crime, the guardian of 
our security from international espionage, and the tireless protector of 
civil rights and civil liberties for all Americans.

	On September 11, a stunned nation turned once again to the brave men and 
women of the FBI, and they, once again, answered the call.  I spent the 
hours, days, and most of the first weeks after the attack in the FBI's 
Strategic Information and Operations Center with Director Mueller.  Even 
today, eight months later, it is difficult to convey the professionalism, 
dedication and quiet resolve I witnessed in those first, 24-hour days.  I 
saw men and women work themselves beyond fatigue to prevent new terrorist 
attacks.  I witnessed individuals put aside their personal lives, personal 
agendas and personal safety to answer our nation's call.

	From the first moments we spent together, launching the largest 
investigation in history, we understood that the mission of American 
justice and law enforcement had changed.  That day, in those early hours, 
the prevention of terrorist acts became the central goal of the law 
enforcement and national security mission of the FBI.  And from that time 
forward, we in the leadership of the FBI and the Department of Justice 
began a concerted effort to free the field agents - the brave men and women 
on the front lines - from the bureaucratic, organizational, and operational 
restrictions and structures that hindered them from doing their jobs 
effectively.

	As we have heard recently, FBI men and women in the field are frustrated 
because many of our own internal restrictions have hampered our ability to 
fight terrorism.  The current investigative guidelines have contributed to 
that frustration.  In many instances, the guidelines bar FBI field agents 
from taking the initiative to detect and prevent future terrorist acts 
unless the FBI learns of possible criminal activity from external sources.

	Under the current guidelines, FBI investigators cannot surf the web the 
way you or I can.  Nor can they simply walk into a public event or a public 
place to observe ongoing activities.  They have no clear authority to use 
commercial data services that any business in America can use.  These 
restrictions are a competitive advantage for terrorists who skillfully 
utilize sophisticated techniques and modern computer systems to compile 
information for targeting and attacking innocent Americans.

	That is why the Attorney General's guidelines and procedures relating to 
criminal investigations and national security were high on the list of 
action items for reform.  Beginning in the 1970s, guidelines have been 
developed to inform agents of the circumstances under which investigations 
may be opened, the permissible scope of these investigations, the 
techniques that may be used, and the objectives that should be 
pursued.  These guidelines provide limitations and guidance over and above 
all requirements and safeguards imposed by the Constitution and beyond the 
legal framework established by federal statutes enacted by 
Congress.  Promulgated for different purposes and revised at various times, 
the guidelines currently cover FBI investigations, undercover operations, 
the use of confidential informants, and consensual monitoring of verbal 
communications.

	The guidelines defining the general rules for FBI investigations, for 
example, were first issued over 20 years ago.  They derive from a period in 
which Soviet communism was the greatest threat to the United States, in 
which the Internet did not exist, and in which concerns over terrorist 
threats to the homeland related mainly to domestic hate groups.

	Shortly after September 11, I took two steps to free FBI field agents to 
prevent additional terrorist attacks.  First, I authorized the FBI to waive 
the guidelines, with headquarters approval, in extraordinary cases to 
prevent and investigate terrorism.  That authority has been used, but I am 
disappointed that it was not used more widely.  This experience over the 
past few months reinforces my belief that greater authority to investigate 
more vigorously needs to be given directly to FBI field agents.

	Second, I directed a top-to-bottom review of the guidelines to ensure that 
they provide front-line field agents with the legal authority they need to 
protect the American people from future terrorist attacks.  That 
comprehensive review showed that the guidelines mistakenly combined 
timeless objectives - the enforcement of the law and respect for civil 
rights and liberties - with outdated means.
	
	Today, I am announcing comprehensive revisions to the Department's 
investigative guidelines.  As revised, the guidelines reflect four 
overriding principles.

	First, the war against terrorism is the central mission and highest 
priority of the FBI.  This principle is stated explicitly in the revised 
guidelines, and it is facilitated and reinforced through many specific 
reforms.  The guidelines emphasize that the FBI must not be deprived of 
using all lawful authorized methods in investigations, consistent with the 
Constitution and statutory authority, to pursue and prevent terrorist actions.

	Second, terrorism prevention is the key objective under the revised 
guidelines.  Our philosophy today is not to wait and sift through the 
rubble following a terrorist attack.  Rather, the FBI must intervene early 
and investigate aggressively where information exists suggesting the 
possibility of terrorism, so as to prevent acts of terrorism.  The new 
guidelines advance this strategy of prevention by strengthening 
investigative authority at the early stage of preliminary inquiries.  Also, 
even absent specific investigative predicates, FBI agents under the new 
guidelines are empowered to scour public sources for information on future 
terrorist threats.

	Third, unnecessary procedural red tape must not interfere with the 
effective detection, investigation, and prevention of terrorist 
activities.  To this end, the revised guidelines allow Special Agents in 
Charge of FBI field offices to approve and renew terrorism enterprise 
investigations, rather than having to seek and wait for approval from 
headquarters. I believe this responds to a number of concerns we have heard 
from our field agents.  The guidelines expand the scope of those 
investigations to the full range of terrorist activities under the USA 
Patriot Act.  These major changes will free field agents to counter 
potential terrorist threats swiftly and vigorously without waiting for 
headquarters to act.

	Fourth, the FBI must draw proactively on all lawful sources of information 
to identify terrorist threats and activities.  It cannot meet its paramount 
responsibility to prevent acts of terrorism if FBI agents are required, as 
they were in the past, to blind themselves to information that everyone 
else is free to see.  Under the revised guidelines, the FBI can identify 
and track foreign terrorists by combining its investigative results with 
information obtained from other lawful sources, such as foreign 
intelligence and commercial data services.   To detect and prevent 
terrorist activities, the FBI under the revised guidelines will also be 
able to enter and observe public places and forums just as any member of 
the public might.

	Let me pause here for a moment.  What I am saying is this:  FBI field 
agents have been inhibited from attending public events, open to any other 
citizen -  not because they are barred by the U.S. Constitution, or barred 
any federal law enacted by Congress, but because of the lack of clear 
authority under administrative guidelines issued decades ago.  Today, I am 
clarifying that, for the specific purpose of detecting or preventing 
terrorist activities, FBI field agents may enter public places and attend 
events open to other citizens, unless they are barred from attending by the 
Constitution or federal law.
	Our new guideline reads, "For the purpose of detecting or preventing 
terrorist activities, the FBI is authorized to visit any place and attend 
any event that is open to the public, on the same terms and conditions as 
members of the public generally."

	I believe in the principle of community policing, in which an active, 
visible law enforcement presence is linked to communities and 
neighborhoods.  Local police can enter public places and attend public 
events in their communities, and they detect and prevent crime by doing 
so.  To protect our communities from terrorism, the FBI must be free to do 
the same.

	The revised guidelines will take effect immediately and will be 
incorporated into the training of FBI agents.  These guidelines will also 
be a resource to inform the American public and demonstrate that we seek to 
protect life and liberty from terrorism and other criminal violence with a 
scrupulous respect for civil rights and personal freedoms.  The guidelines 
are available on the internet at www.usdoj.gov. <http://www.usdoj.gov>

	The campaign against terrorism is a campaign to affirm the values of 
freedom and human dignity that transcend national boundaries, racial 
classifications, and religious differences.  Called to the service of our 
nation, we are called to the defense of liberty for all men and women.  On 
behalf of the Department of Justice and the people of this great nation, I 
thank Director Mueller and the FBI for their hard work to defend 
freedom.  And I thank Deputy Attorney General Larry Thompson, and Assistant 
Attorneys General Michael Chertoff and Viet Dinh for their efforts in 
revising the guidelines to honor these values.

# # #

---

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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