[Infowarrior] - Loosening of F.B.I. Rules Stirs Privacy Concerns

[Richard Forno]

October 29, 2009
Loosening of F.B.I. Rules Stirs Privacy Concerns
By CHARLIE SAVAGE
http://www.nytimes.com/2009/10/29/us/29manual.html?_r=1&hp=&pagewanted=print

WASHINGTON — After a Somali-American teenager from Minneapolis  
committed a suicide bombing in Africa in October 2008, the Federal  
Bureau of Investigation began investigating whether a Somali Islamist  
group had recruited him on United States soil.

Instead of collecting information only on people about whom they had a  
tip or links to the teenager, agents fanned out to scrutinize Somali  
communities, including in Seattle and Columbus, Ohio. The operation  
unfolded as the Bush administration was relaxing some domestic  
intelligence-gathering rules.

The F.B.I.’s interpretation of those rules was recently made public  
when it released, in response to a Freedom of Information lawsuit, its  
“Domestic Investigations and Operations Guide.” The disclosure of the  
manual has opened the widest window yet onto how agents have been  
given greater power in the post-Sept. 11 era.

In seeking the revised rules, the bureau said it needed greater  
flexibility to hunt for would-be terrorists inside the United States.  
But the manual’s details have alarmed privacy advocates.

One section lays out a low threshold to start investigating a person  
or group as a potential security threat. Another allows agents to use  
ethnicity or religion as a factor — as long as it is not the only one  
— when selecting subjects for scrutiny.

“It raises fundamental questions about whether a domestic intelligence  
agency can protect civil liberties if they feel they have a right to  
collect broad personal information about people they don’t even  
suspect of wrongdoing,” said Mike German, a former F.B.I. agent who  
now works for the American Civil Liberties Union.

But Valerie Caproni, the F.B.I.’s general counsel, said the bureau has  
adequate safeguards to protect civil liberties as it looks for people  
who could pose a threat.

“Those who say the F.B.I. should not collect information on a person  
or group unless there is a specific reason to suspect that the target  
is up to no good seriously miss the mark,” Ms. Caproni said. “The  
F.B.I. has been told that we need to determine who poses a threat to  
the national security — not simply to investigate persons who have  
come onto our radar screen.”

The manual authorizes agents to open an “assessment” to “proactively”  
seek information about whether people or organizations are involved in  
national security threats.

Agents may begin such assessments against a target without a  
particular factual justification. The basis for such an inquiry  
“cannot be arbitrary or groundless speculation,” the manual says, but  
the standard is “difficult to define.”

Assessments permit agents to use potentially intrusive techniques,  
like sending confidential informants to infiltrate organizations and  
following and photographing targets in public.

F.B.I. agents previously had similar powers when looking for potential  
criminal activity. But until the recent changes, greater justification  
was required to use the powers in national security investigations  
because they receive less judicial oversight.

If agents turn up something specific to suggest wrongdoing, they can  
begin a “preliminary” or “full” investigation and use additional  
techniques, like wiretapping. But even if agents find nothing, the  
personal information they collect during assessments can be retained  
in F.B.I. databases, the manual says.

When selecting targets, agents are permitted to consider political  
speech or religion as one criterion. The manual tells agents not to  
engage in racial profiling, but it authorizes them to take into  
account “specific and relevant ethnic behavior” and to “identify  
locations of concentrated ethnic communities.”

Farhana Khera, president of Muslim Advocates, said the F.B.I. was  
harassing Muslim-Americans by singling them out for scrutiny. Her  
group was among those that sued the bureau to release the manual.

“We have seen even in recent months the revelation of the F.B.I. going  
into mosques — not where they have a specific reason to believe there  
is criminal activity, but as ‘agent provocateurs’ who are trying to  
incite young individuals to join a purported terror plot,” Ms. Khera  
said. “We think the F.B.I. should be focused on following actual leads  
rather than putting entire communities under the microscope.”

Ms. Caproni, the F.B.I. lawyer, denied that the bureau engages in  
racial profiling. She cited the search for signs of the Somali group,  
Al Shabaab, linked to the Minneapolis teenager to illustrate why the  
manual allows agents to consider ethnicity when deciding where to  
look. In that case, the bureau worried that other such teenagers might  
return from Somalia to carry out domestic operations.

Agents are trained to ignore ethnicity when looking for groups that  
have no ethnic tie, like environmental extremists, she said, but “if  
you are looking for Al Shabaab, you are looking for Somalis.”

Among the manual’s safeguards, agents must use the “least intrusive  
investigative method that effectively accomplishes the operational  
objective.” When infiltrating an organization, agents cannot sabotage  
its “legitimate social or political agenda,” nor lead it “into  
criminal activity that otherwise probably would not have occurred.”

Portions of the manual were redacted, including pages about  
“undisclosed participation” in an organization’s activities by agents  
or informants, “requesting information without revealing F.B.I.  
affiliation or the true purpose of a request,” and using “ethnic/ 
racial demographics.”

The attorney general guidelines for F.B.I. operations date back to  
1976, when a Congressional investigation by the so-called Church  
Committee uncovered decades of illegal domestic spying by the bureau  
on groups perceived to be subversive — including civil rights, women’s  
rights and antiwar groups — under the bureau’s longtime former  
director, J. Edgar Hoover, who died in 1972.

The Church Committee proposed that rules for the F.B.I.’s domestic  
security investigations be written into federal law. To forestall  
legislation, the attorney general in the Ford administration, Edward  
Levi, issued his own guidelines that established such limits internally.

Since then, administrations of both parties have repeatedly adjusted  
the guidelines.

In September 2008, Attorney General Michael B. Mukasey signed the new  
F.B.I. guidelines that expanded changes begun under his predecessor,  
John Ashcroft, after the Sept. 11 attacks. The guidelines went into  
effect and the F.B.I. completed the manual putting them into place  
last December.

There are no signs that the current attorney general, Eric H. Holder  
Jr., plans to roll back the changes. A spokeswoman said Mr. Holder was  
monitoring them “to see how well they work” and would make refinements  
if necessary.

The F.B.I., however, is revising the manual. Ms. Caproni said she was  
taking part in weekly high-level meetings to evaluate suggestions from  
agents and expected about 20 changes.

Many proposals have been requests for greater flexibility. For  
example, some agents said requirements that they record in F.B.I.  
computers every assessment, no matter how minor, were too time  
consuming. But Ms. Caproni said the rule aided oversight and would not  
be changed.

She also said that the F.B.I. takes seriously its duty to protect  
freedom while preventing terrorist attacks. “I don’t like to think of  
us as a spy agency because that makes me really nervous,” she said.  
“We don’t want to live in an environment where people in the United  
States think the government is spying on them. That’s an oppressive  
environment to live in and we don’t want to live that way.”

What the public should understand, she continued, is that the F.B.I.  
is seeking to become a more intelligence-driven agency that can figure  
out how best to deploy its agents to get ahead of potential threats.

“And to do that,” she said, “you need information.”