[Infowarrior] - Rule Changes Would Give FBI Agents Extensive New Powers

[Richard Forno]

Rule Changes Would Give FBI Agents Extensive New Powers

By Carrie Johnson
Washington Post Staff Writer
Friday, September 12, 2008; A02

http://www.washingtonpost.com/wp-dyn/content/article/2008/09/11/AR2008091103306_pf.html

The Justice Department will unveil changes to FBI ground rules today  
that would put much more power into the hands of line agents pursuing  
leads on national security, foreign intelligence and even ordinary  
criminal cases.

The overhaul, the most substantial revision to FBI operating  
instructions in years, also would ease some reporting requirements  
between agents, their supervisors and federal prosecutors in what  
authorities call a critical effort to improve information gathering  
and detect terrorist threats.

The changes would give the FBI's more than 12,000 agents the ability  
at a much earlier stage to conduct physical surveillance, solicit  
informants and interview friends of people they are investigating  
without the approval of a bureau supervisor. Such techniques are  
currently available only after FBI agents have opened an investigation  
and developed a reasonable suspicion that a crime has been committed  
or that a threat to national security is developing.

Authorities say the changes would eliminate confusion for agents who  
investigate drug, gang or national security cases.

The overhaul touches on several sensitive areas. It would allow, for  
example, agents to interview people in the United States about foreign  
intelligence cases without warrants or prior approval of their  
supervisors. It also would rewrite 1976 guidelines established after  
Nixon-era abuses that restrict the FBI's authority to intervene in  
times of civil disorder and to infiltrate opposition groups.

"We wanted simpler, clearer and more uniform standards and procedures  
for domestic operations," said a senior Justice Department official.  
"We view this as the next step in responding to post-9/11 requests  
that the FBI become better at collecting intelligence and using that  
intelligence to prevent attacks."

The move comes a year after the Justice Department's inspector general  
documented widespread lapses involving one of the bureau's most potent  
investigative tools, secret "national security letters" that FBI  
agents send to banks and phone companies to demand sensitive  
information in terrorism probes.

The revisions are the latest in a series of efforts to tear down a  
wall that, prior to the Sept. 11, 2001, attacks, prevented  
intelligence investigators from sharing some information with their  
counterparts working on criminal cases. Senior Justice Department and  
FBI lawyers who discussed the proposal yesterday said such powers are  
necessary to continue the transformation of the FBI into a proactive  
organization that can prevent terrorist strikes, as recommended by  
several independent commissions that addressed intelligence failures  
after the attacks.

The rule revisions require the approval of Attorney General Michael B.  
Mukasey, who has signaled that they will take effect Oct. 1. FBI  
agents already are being trained on the changes, though officials said  
yesterday that they would consider making adjustments after receiving  
suggestions from interest groups and lawmakers.

Congressional aides examined the draft guidelines behind closed doors  
last month and FBI and Justice lawyers will present them today to an  
array of civil liberties and privacy advocates, as well as Arab  
American groups that have expressed concerns about their impact on  
religious and ethnic minorities.

The groups say they fear that agents will use ethnicity or religion as  
the basis for a threat assessment. But top Justice Department leaders,  
including the attorney general, noted the illegality of racial  
profiling and said investigations will not be opened based "solely" or  
"simply" on a person's race or religion.

Previous changes to FBI operating instructions, made by Attorney  
General John D. Ashcroft in 2002 and 2003, did not receive a public  
airing before they took effect. Still, civil liberties advocates are  
asking whether protections built into the rules will be strong enough.

"It is an extraordinarily broad grant of power to an agency that has  
not proven it uses its power in an appropriate manner," said Michael  
German, policy counsel at the American Civil Liberties Union.

The revised rules largely eliminate the requirement that FBI agents  
file reports to their supervisors on early-stage investigations, in  
favor of audits at bureau field offices by lawyers in the Justice  
Department's National Security Division.

Threat assessments and early-stage investigations that cover  
political, religious or media figures and full-scale investigations of  
people in the United States, however, are special cases that must be  
flagged for bureau supervisors and lawyers, according to both current  
standards and the proposed changes.

Monitoring conversations between informants who agree to wear  
recording devices and subjects of investigations, which now requires  
the permission of an assistant U.S. attorney, could occur without a  
prosecutor's approval, except in sensitive cases involving state and  
federal officials and judges, as well as federal prisoners.

One of the areas still under discussion, according to a senior Justice  
Department official, is the standard for the FBI's rare involvement in  
responding to civil disorder. Under the current standards, FBI  
involvement requires the approval of the attorney general and can last  
for only 30 days.

The new approach would relax some of those requirements and would  
expand the investigative techniques that agents could use to include  
deploying informants. FBI agents monitoring large-scale demonstrations  
that they believe could turn dangerous also would have new power to  
use those techniques.

Policy guidance for FBI agents and informants who work as "undisclosed  
participants" in organizations is still being written, the officials  
said yesterday.