FBI sued over surveillance rules

June 30, 12:38 PMCivil Liberties ExaminerJ.D. Tuccille

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Civil liberties advocates fear that new domestic
surveillance guidelines could return us to the days
when Martin Luther King Jr.'s political views drew the
scrutiny of the FBI. (Photo: Public domain)

Last fall, then-Attorney General Michael B. Mukasey released a controversial set of guidelines for domestic FBI operations (PDF). Focused as they were on the bureau's national security and intelligence-gathering roles, the new guidelines relaxed restrictions on infiltration and surveillance that had been imposed in response to serious past abuses by agents. Civil liberties groups have since sought to discover how the FBI has put the Attorney General's document into practical effect, only to be stonewalled. Now the Electronic Frontier Foundation has filed a lawsuit to discover just what sort of domestic intelligence policies have resulted from Mukasey's much-debated document.

Mukasey set the tone for the guidelines with remarks he made last August at the Oregon Anti-Terrorism Conference and Training, the AG boasted, that "[t]he implementation of new Attorney General Guidelines will help in the Bureau’s transformation into an elite national security organization." He specified that the new guidelines will eliminate the distinction between criminal and national security investigations, so that the same techniques and resources will be available in all cases.

The remarks in Oregon were only a slightly sharpened version of a statement he'd given to the Senate Judiciary Committee (PDF) in July, in which he anticipated "the Bureau’s transformation from solely an elite law enforcement agency, into an agency with a principal mission to detect and prevent terrorist attacks."

With the emphasis on intelligence-gathering, and the Bush administration's impatience with civil liberties safeguards, it was little surprise that Mukasey retreated from decades-established curbs on FBI surveillance powers, implemented in response to past abuses. The FBI has a long history of investigating people because of their political views, and putting journalists under surveillance simply because they threaten to uncover awkward truths. John Lennon and Martin Luther King came under scrutiny for ideological reasons. And as recently as 2006, under the old guidelines, the FBI was targeting reporters' phone records in an effort to track down government leaks.

With that record in mind, Senators Russell Feingold, Edward Kennedy, Richard Durbin and Sheldon Whitehouse warned in a letter commenting on a draft version of Mukasey's guidelines, "We are concerned about the extent to which such authority might, for example, permit the FBI to conduct long-term physical surveillance of an innocent American citizen; interview such an individual’s neighbors and professional colleagues, including based on a “pretext” or misrepresentation; recruit human sources to provide information on that individual; or conduct commercial database searches on that individual – all without any basis for suspicion."

After the guidelines were formalized, the Washington Post reported:

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.

But Mukasey's document was a sort of guideline for guidelines -- the FBI had to use it to determine its own Domestic Investigations and Operations Guidelines. The FBI's rules were established in December of last year and have been in effect ever since.

What are they? Your guess is as good as any.

The Electronic Frontier Foundation, a San Francisco-based civil liberties group that emphasizes privacy in the digital age, filed a freedom of information request for the FBI's own rules. The FBI responded on May 29 of this year, according to EFF's complaint (PDF), filed in the United States District Court in D.C., saying that, since the FBI hadn't yet decided which portions of the guidelines would be revealed to the public on its own Website, the request was denied.

Six months after implementing new policies for monitoring and gathering information on Americans, and the FBI won't tell us the rules by which it's working.

With its lawsuit, the EFF hopes to shine a little light on the matter.

email J.D.: civilliberties (at) tuccille.com