Politech is the oldest Internet resource devoted to politics and
technology. Launched in 1994 by Declan
McCullagh, the mailing list has chronicled the growing
intersection of culture, technology, politics, and law. Since
2000, so has the Politech web site.
Ashcroft releases fact sheet on new FBI investigative guidelines
- Date: Sat, 21 Sep 2002 08:40:40 -0700
- To: email@example.com
- Subject: FC: Ashcroft releases fact sheet on new FBI investigative guidelines
- From: Declan McCullagh <firstname.lastname@example.org>
Previous Politech messages:
"FBI gets more surveillance powers; Cato's Pilon says no problem"
"Analysis of FBI's new surveillance powers, from CDT"
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:
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
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
*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
*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
*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
*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
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.)
POLITECH -- Declan McCullagh's politics and technology mailing list
You may redistribute this message freely if you include this notice.
To subscribe to Politech: http://www.politechbot.com/info/subscribe.html
This message is archived at http://www.politechbot.com/
Declan McCullagh's photographs are at http://www.mccullagh.org/
Like Politech? Make a donation here: http://www.politechbot.com/donate/
Recent CNET News.com articles: http://news.search.com/search?qÞclan
CNET Radio 9:40 am ET weekdays: http://cnet.com/broadband/0-7227152.html
Return to politechbot.com