The New York Times Charlie Savage reports that the FBI is altering its own agency guidelines, relaxing rules about what sort of investigative tools can be used to gather information on a target before opening an “assessment,” which obligates agents to document their steps.
That kind of documentation has been key to determining when FBI investigators have exceeded their authority. But as Savage reports, the new rules allow for more aggressive investigative techniques can be undertaken without the requirement of a paper trail, meaning that it will be harder to identify abuses. Among the techniques are searching through subscription-only databases, such as Lexis-Nexis, without having to make “a record about their decision.”
“It’s just an invitation for abuse,” says Emily Berman of the Brennan Center, who is the author of a recent report on domestic intelligence gathering. “If you know nobody is looking over your shoulder and can never be, the deterrent factor goes out the window.”
Mike German, a former FBI agent who now works at the ACLU, agreed. “The way you catch this is, you searched Mike German, show me the case, where that was relevant. Now they don’t have to show you anything,” German says. “They just say, I had a hunch, and I didn’t keep the records because it turned out to be nothing.”
The FBI’s investigative guidelines have to stay within the lines of those issued by the attorney general, but there’s no indication that the Department of Justice believes the FBI’s new guidelines go too far. Civil liberties and privacy advocates expressed concern when Eric Holder kept the guidelines established by his predecessor Michael Mukasey, arguing that they opened the door to racial profiling. The practice of using guidelines to establish the limits of the FBI’s authority came in the 1970s, as part of reforms in response to public outrage over civil liberties abuses. Then, Congress opted not to clarify the FBI’s authority in a statute, allowing the agency to police itself with help from the Justice Department. But that was a different time, when Americans were more skeptical of the government’s domestic spying authority.
Both the database rules, and the rules allowing the FBI to search through the trash of potential informants, seem constructed to enhance the FBI’s ability to compel individuals to become informants. Many recent domestic terrorism cases have involved the use of informants in sting operations, where the target conspires to execute a terror attack unaware that their accomplice is working with the FBI. But German says the new guidelines would also allow the government to find private information that isn’t necessarily criminal, and then threaten to expose someone unless they cooperate.
“[T]heir justification for doing the trash hauls on potential informants is to find some derogatory information that can be used against you to compel you to be an informant,” German says. “It brings us back to the state of play during the COINTELPRO era, where the FBI did pursue people and try to embarrass them and try to prevent them from getting jobs and other dirty tricks, because of their political beliefs rather than because they were involved in any kind of misconduct.”
Perhaps worse German says, is that the guidelines will result in the FBI wasting resources on investigations of individuals who aren’t dangerous. Demanding a “factual predicate” for assessments, German says, helps investigators focus on the people who pose an actual danger.
“I worked proactive investigations using criminal predicate to focus on people who are actively doing bad things, and prevented bombings and arrested people in advance of more violent activity that they had planned,” German says of his time with the FBI. “The idea that the factual predicate is the problem is factually incorrect. I found it quite the opposite, that the factual predicate compelled me to focus on people who were actually doing bad things, as opposed to people who weren’t.”
