[Infowarrior] - New Guidelines Would Give F.B.I. Broader Powers

[Richard Forno]

August 21, 2008
New Guidelines Would Give F.B.I. Broader Powers
By ERIC LICHTBLAU

http://www.nytimes.com/2008/08/21/washington/21fbi.html?_r=1&hp=&oref=slogin&pagewanted=print

WASHINGTON — A Justice Department plan would loosen restrictions on  
the Federal Bureau of Investigation to allow agents to open a national  
security or criminal investigation against someone without any clear  
basis for suspicion, Democratic lawmakers briefed on the details said  
Wednesday.

The plan, which could be made public next month, has already generated  
intense interest and speculation. Little is known about its precise  
language, but civil liberties advocates say they fear it could give  
the government even broader license to open terrorism investigations.

Congressional staff members got a glimpse of some of the details in  
closed briefings this month, and four Democratic senators told  
Attorney General Michael B. Mukasey in a letter on Wednesday that they  
were troubled by what they heard.

The senators said the new guidelines would allow the F.B.I. to open an  
investigation of an American, conduct surveillance, pry into private  
records and take other investigative steps “without any basis for  
suspicion.” The plan “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 letter said. It was signed by Russ Feingold of  
Wisconsin, Richard J. Durbin of Illinois, Edward M. Kennedy of  
Massachusetts and Sheldon Whitehouse of Rhode Island.

As the end of the Bush administration nears, the White House has been  
seeking to formalize in law and regulation some of the aggressive  
counterterrorism steps it has already taken in practice since the  
Sept. 11 attacks.

Congress overhauled the federal wiretapping law in July, for instance,  
and President Bush issued an executive order this month ratifying new  
roles for intelligence agencies. Other pending changes would also  
authorize greater sharing of intelligence information with the local  
police, a major push in the last seven years.

The Justice Department is already expecting criticism over the F.B.I.  
guidelines. In an effort to pre-empt critics, Mr. Mukasey gave a  
speech last week in Portland, Ore., describing the unfinished plan as  
an effort to “integrate more completely and harmonize the standards  
that apply to the F.B.I.’s activities.” Differing standards, he said,  
have caused confusion for field agents.

Mr. Mukasey emphasized that the F.B.I. would still need a “valid  
purpose” for an investigation, and that it could not be “simply based  
on somebody’s race, religion, or exercise of First Amendment rights.”

Rather than expanding government power, he said, “this document  
clarifies the rules by which the F.B.I. conducts its intelligence  
mission.”

In 2002, John Ashcroft, then the attorney general, allowed F.B.I.  
agents to visit public sites like mosques or monitor Web sites in the  
course of national security investigations. The next year, Mr. Bush  
issued guidelines allowing officials to use ethnicity or race in  
“narrow” circumstances to detect a terrorist threat.

The Democratic senators said the draft plan appeared to allow the  
F.B.I. to go even further in collecting information on Americans  
connected to “foreign intelligence” without any factual predicate.  
They also said there appeared to be few constraints on how the  
information would be shared with other agencies.

Michael German, a lawyer with the American Civil Liberties Union and a  
former F.B.I. agent, said the plan appeared to open the door still  
further to the use of data-mining profiles in tracking terrorism.

“This seems to be based on the idea that the government can take a  
bunch of data and create a profile that can be used to identify future  
bad guys,” he said. “But that has not been demonstrated to be true  
anywhere else.”

The Justice Department said Wednesday that in light of requests from  
members of Congress for more information, Mr. Mukasey would agree not  
to sign the new guidelines before a Sept. 17 Congressional hearing.