Focusing public attention on emerging privacy and civil liberties issues

The Attorney General's Guidelines

Latest News

  • EPIC Calls For Disclosure of Federal Domestic Surveillance Guidelines. Today, EPIC filed a Freedom of Information Act request to force disclosure of new guidelines governing domestic surveillance. The Attorney General's Guidelines for Domestic FBI Operations became effective today, despite warnings from Congressional leaders that "these guidelines would permit FBI surveillance of innocent Americans with no suspicion and on the basis of their race, religion or national origin." Administration officials failed to make public the final, complete policies, which govern the conduct of field operatives while performing domestic investigations. "The guidelines grant the FBI broad authority to conduct domestic surveillance of many individuals suspected of no crime. Therefore it is necessary that the legal authority is made available to the public," EPIC said. (Dec. 1)
  • Senate Begins Hearings on FBI Attorney General Guidelines. The Senate Judiciary Committee is holding an oversight hearing on the FBI. The FBI is proposing to adopt new guidelines for domestic operations that would permit "assessments" of individuals without any suspicion of criminal wrongdoing that could then lead to full investigations. The proposed Guidelines also appear to rescind 2003 principles that limit the use of racial factors to national security investigations. Several Senators have expressed concern about the proposal. (Sept. 17)

Introduction

New policies developed by Attorney General Ashcroft on the power of the Federal Bureau of Investigation to investigate Americans pose serious threats to the right of individuals to speak and assemble freely without the spectre of government monitoring. The policies also threaten Fourth Amendment rights, as Ashcroft has permitted the FBI to engage in prospective searches without possessing any evidence of suspicious behavior. At a time when it is clear that the FBI has been awash in data and unable to process leads effectively, Ashcroft has enabled the agency to obtain even more information that is less likely to result in solid leads.

These new policies are included in the Attorney General's Guidelines on General Crimes, Racketeering and Terrorism ("Guidelines"), and were released to the public on May 30, 2002. The Guidelines have been modified over the years by several Attorneys General, and EPIC has previously underscored the danger of removing important protections of political rights. However, Attorney General John Ashcroft's changes to the guidelines represent a significant increase in FBI investigative powers. Ashcroft's changes will allow for mining of commercial databases where there is no suspicion of criminal conduct and infiltration of groups that have not demonstrated any evidence of criminal activity.

The FBI has a long history of using its investigative powers to monitor and disrupt legitimate, constitutionally-protected political activity. Years of abuses, perhaps marked most notably by an aggressive smear campaign of the Reverend Martin Luther King, Jr., led to the development of the first Attorney General's Guidelines in 1976. The Guidelines limit the ability of FBI to investigate Americans in order to prevent unjustified monitoring of individuals and groups. Because the FBI has such a strong history of using its power not to enforce the law, but rather to intimidate and disrupt political opponents, the new Guidelines represent a serious threat to civil liberties and privacy.

The FBI Has Abused Its Investigatory Powers to Harass and Disrupt Political Opponents

The FBI's own documents show that the agency has engaged in extensive surveillance and infiltration of political groups for the purposes of disrupting them. In the 1950s and 60s, FBI agents probed groups that were suspected of having a Communist ideology. Individuals who had engaged in no criminal wrongdoing were investigated and arrested. The investigations, fueled by McCarthyism, resulted in enormous dossiers built on innocent Americans and retaliation against people who simply had different political opinions.

The 1960s also brought the expansion of the FBI's Counterintelligence Programs ("COINTELPRO"). Through COINTELPRO, the FBI investigated and disrupted a broad range of legitimate First Amendment activity. Groups investigated included civil rights activists, the National Organization for Women (NOW), environmental advocates, the American Indian Movement, and others. These activities are detailed in the FBI's own documents and have been compiled in a book by Ward Churchill and Jim Vander Wall titled The COINTELPRO Papers: Documents from the FBI's Secret Wars Against Dissent in the United States.

In 1975, a Senate Committee was created to investigate the FBI and the involvement of other intelligence agencies in political repression. The Committee, named for its Chairman, Idaho Senator Frank Church, released volumes of findings and recommendations. Among them were the plan of the FBI to summarily arrest thousands of Americans in case of a national emergency; that the FBI had investigated the NAACP for 25 years to determine whether it was a Communist front; that the FBI had burglarized political groups to gain information on their activities; and that the FBI kept files on one million Americans. These abuses led to the creation of the Attorney General's Guidelines.

Despite the revelations from the Church Committee and the issuance of Guidelines limiting the ability of the FBI to intimidate activists, the agency continued to investigate groups that engaged in legitimate political activities. The FBI investigated the Committee in Solidarity with the People of El Salvador (CISPES) in the 1980s. The FBI established the "Library Awareness Program," a system to obtain library circulation records as well. In the 1990s, the FBI investigated Earth First, gay rights organizations, and Muslim student groups.

The Attorney General's Guidelines

The Attorney General's Guidelines were first created in 1976 by Attorney General Edward Levi. Levi's Guidelines prohibited investigations into speech activities where there was no advocacy of violence. Levi also prohibited the FBI from engaging in disruption of protected First Amendment activity and from attempting to discredit individuals. The Guidelines specified that investigations should be limited to exposing criminal conduct and should not involve simple monitoring of unpopular political views. Investigations could only be brought where "specific and articulable facts" indicated criminal activity. Levi's Guidelines also required reporting to the Attorney General on investigations.

Attorney General William French Smith weakened the restrictions on the FBI in 1983. Under the Smith Guidelines, a full investigation could be brought where information received points to a "reasonable indication" of criminal activity. This standard for opening a full investigation remains in effect today. Smith's Guidelines also created a "limited preliminary inquiry," a type of investigation that allowed all types of police techniques except for wiretapping, mail opening, and "mail covers" (the practice of photocopying the outside of envelopes to determine address and sender information from letters).

In 1989, Attorney General Dick Thornburgh amended the Guidelines again and his version remained in effect (with a minor revision relating to the authority to initiate racketeering investigations made by Attorney General Janet Reno) until May 2002.

Attorney General Ashcroft amended the Guidelines on May 30, 2002. Ashcroft claimed that the 1989 Guidelines prevented FBI agents from searching the Internet, from using private-sector databases to obtain information, and from attending public events, such as rallies or religious meetings. Ashcroft's claims were not true-the FBI could engage in these activities under the 1989 Guidelines, but only pursuant to a legitimate investigation, one that was based on information pointing to the possibility of criminal wrongdoing. This standard-information received pointing to the possibility of criminal wrongdoing-is substantially weaker than "probable cause," which is the legal standard used for search and arrest. In fact, the FBI and other federal law enforcement agencies consume voluminous amounts of personal information from private-sector databases already. Documents obtained by EPIC under the Freedom of Information Act show that the FBI has multi-million dollar contracts for access to the ChoicePoint and Experian personal information databases. For more information, see the EPIC Public Records Page.

The changes to the Guidelines allow FBI agents to use private-sector databases prospectively in order to predict terrorist acts. These databases may be used without any evidence of criminal activity or suspicious behavior-the FBI can now go on data mining "fishing trips."

The Guidelines also allow FBI to engage in searches and monitoring of chat rooms, bulletin boards, and websites without evidence of criminal wrongdoing. Additionally, agents are permitted to visit public places and events to monitor individuals' activities with no predicate of criminal suspicion. These powers are not limited to terrorism investigations-they can be used for any violation of federal law, including drug crimes, white-collar crime, and copyright violations.

The Guidelines also set forth the standards for the initiation of three different standards of FBI activities: checking of leads, preliminary investigations, and full investigations.

Under the Guidelines, an FBI Agent can engage in the "prompt and extremely limited checking of initial leads" where information is received that indicates the possibility of criminal activity.

Preliminary investigations may be brought where information is received that indicates a possibility of criminal activity requiring more scrutiny than checking of leads. This may occur where the initial lead information is ambiguous or incomplete. In preliminary investigations, the FBI may use any investigative technique except for wiretaps, mail opening, and mail covers. This includes: examination of FBI files, use of private-sector databases, use of public records, interviews, physical or photographic surveillance, confidential informants, and undercover activities and operations. Preliminary inquiries allow one-party consent electronic surveillance. For instance, an agent could secretly record her conversations with a suspect. Preliminary inquiries may last up to 180 days and 90-day extensions may be granted.

Full investigations may be brought where facts or circumstances reasonably indicate that a federal crime has been, is being, or will be committed. In a full investigation, Agents may use wiretapping, mail opening, and mail covers in addition to the techniques permitted in a preliminary investigation. There are two types of full investigations: general crimes investigations and criminal intelligence investigations.

General crimes investigations are brought for the purpose of preventing individuals from engaging in criminal activity or to prosecute crimes that have already occurred.

Criminal intelligence investigations are for groups of persons who may be committing a federal crime. The purpose is not only to prevent and prosecute crimes, but also to obtain information concerning the nature and structure of the group. This includes investigations of membership, finances, and activities. Unlike general crimes investigations, criminal intelligence investigations may be less precise, and may last for years.

Criminal intelligence investigations may involve the "interrelation of various sources and types of information." That is, FBI agents may consider statements of different members of the group to justify an investigation.

There are two types of criminal intelligence investigations: racketeering enterprises investigations and terrorism enterprise investigations. Racketeering enterprises investigations generally are used for organized crime.

Terrorism enterprise investigations are brought where a group is suspected of furthering political or social goals through force or violence and a federal crime. These investigations may be brought based on a series of factors, including whether the group has made advocacies of violence, whether the group possesses the apparent ability or intent to commit violence, the immediacy or magnitude of the threat, and whether the group supports specified offenses, such as assault or intimidation of federal law enforcement officers. The Guidelines require the Agent to consider the dangers to privacy or free expression posed by investigation.

A FBI Special Agent in Charge (SAC) can initiate this type of investigation with notice to FBI Headquarters. Initial authorization allows a one-year investigation.

Mere speculation that force or violence might occur during the course of a peaceable demonstration is not sufficient grounds for initiation of a Terrorism enterprise investigation.

The New Guidelines

Resources on the New Guidelines

Resources on Past Guidelines

News

Resources

  • EPIC Terrorism Page.
  • EPIC Profiling Page.
  • EPIC Public Records and Privacy Page.
  • William Banks & M.E. Bowman, Executive Authority for National Security Surveillance, 50 Am. U. L. Rev. 1, 2000.
  • David M. Park, Re-Examining the Attorney General's Guidelines for FBI Investigations of Domestic Groups, 39 Ariz. L. Rev. 769, Summer 1997.
  • Paul M. Peterson, Civilian Demonstrations Near Military Installation: Restrains on Military Surveillance and Other Intelligence Activities, 140 Mil. L. Rev. 113, Spring 1993.
  • Katherine Goldwasser, After Abscam: An Examination of Congressional Proposals to Limit Targeting Discretion in Federal Undercover Investigations, 36 Emory L. J. 74, Winter 1987.
  • Julie K. Rademaker, Alliance to End Repression v. City of Chicago: Judicial Abandonment of Consent Decree Principles, 80 Nw. U. L. Rev. 1675, Summer 1986.
  • John T. Elliff, Symposium: National Security and Civil Liberties: The Attorney General's Guidelines for FBI Investigations, 69 Cornell L. Rev. 785, April 1984.
  • Eric Lardiere, The Justiciability and Constitutionality of Political Intelligence Gathering, 30 UCLA L. Rev. 976, June 1983.

Cases

  • Alliance to End Repression v. Chicago, No. 96-2347 (7th Cir. 1997).
  • Alliance to End Repression v. Chicago, 742 F.2d 1007 (7th Cir. 1984).
  • Alliance to End Repression v. Chicago, 561 F.Supp. 575 (N.D. Ill. 1983).
  • United States v. United States District Court, 407 U.S. 297 (1972). "History abundantly documents the tendency of Government--however benevolent and benign its motives--to view with suspicion those who most fervently dispute its policies. [Constitutional] protections become the more necessary when the targets of official surveillance may be those suspected of unorthodoxy in their political beliefs. The danger to political dissent is acute where the Government attempts to act under so vague a concept as the power to protect "domestic security." Given the difficulty of defining the domestic security interest, the danger of abuse in acting to protect that interest becomes apparent."
  • United States v. Robel, 389 U.S. 258 (1967).