FBI Director Robert Mueller, who testified before the U.S. House and Senate Judiciary Committees this week, said new Attorney General guidelines for the FBI would radically overhaul the agency’s investigation procedures towards an intelligence-focused approach.

However, what the new framework Mueller described would actually do is allow agents to begin “assessments” and surveillance without first obtaining factual evidence. Additionally, the guidelines would permit agents to use race and ethnicity as a factor for triggering investigations.

Despite the concerns raised during the hearings and pressure from civil rights groups, Attorney General Michael Mukasey plans on signing the guidelines into law on Oct. 1.

These guidelines represent only some of a series of changes in law enforcement set in place the last year, increasing the power of federal, state and local authorities. Other new policies include the proposal to eliminate restrictions on local and state law enforcement intelligence gathering, the recruitment of over 15,000 new informants, and the creation of local-level “fusion centers” that gather and monitor masses of criminal and non-criminal information on individuals.

While the FBI guidelines have not been released to the general public, several members of Congress and key staffers from the Judiciary Committees of the House and Senate pressed and received limited access to the draft. Department of Justice briefings and a speech by Attorney General Michael Mukasey in August also shed light on the topic.

The Return to Racial Profiling

The most significant changes in the FBI guidelines include lowering the standards necessary to begin “assessments,” eliminating the need for any clear basis for suspicion or “factual predication.” Instead, assessments could now be started based on profiles of national security threats or on anonymous tips. Investigators conducting these initial inquiries would have access to numerous surveillance techniques

According to a letter to the Attorney General from Sens. Russ Feingold (D-Wis.), Edward Kennedy (D-Mass.), Richard Durbin (D-Ill.) and Sheldon Whitehouse (D-R.I.), the assessment techniques may include “long-term physical surveillance,” undercover or other interviews of neighbors or colleagues, recruitment of sources, and database searches.
 
During Wednesday’s hearing, Sen. Patrick Leahy (D-Vt.), Co-chair of the Senate Judiciary Committee, noted that the guidelines also impose “no time limit” for these assessments.
 
The profiles that the FBI can use to trigger these assessment investigations would include race, ethnicity, and religion. The American Civil Liberties Union (ACLU) and other civil rights group have labeled this as racial profiling, but the Department of Justice has claimed that race or ethnicity could not be the sole factor for opening an investigation and thus still comply with the Department of Justice’s (DOJ) own 2003 guidance against profiling.
 
“That one of the things that is most troubling to me,” said Michael German, ACLU Policy Counsel and a former FBI Special Agent. “The FBI, the Department of Justice, and state and local law enforcement have done a very good job over last 20 years convincing the rank and file through evidence that racial profiling is not effective and that it actually causes more problems than it solved. Rather than just imagining that it might work, we can actually look at the data.”
 
German and Joseph Zogby, Chief Counsel for  Sen. Durbin, were among the speakers at an American Constitution Society panel last week on the guidelines. Zogby noted that the racial profiling provisions would further hinder counter-terrorism by creating mistrust and alienating communities that could be critical to investigations.
 
 ”If law enforcement focused on people who are actually threats as opposed to a 1.5 billion [Muslim] people, they would be much more effective,” German also said. The former Special Agent detailed his own experience tracking domestic terrorists and noted that focusing on people who have “actually committed violent acts” would mean “we will actually get the bad people, as opposed to those whose ideas we don’t like.”
 
FBI: National Security or Law Enforcement?
 
The data matching up with “threat” profiles for under the new guidelines would be garnered from the vast wealth of databases on the day-to-day activities of U.S. residents the FBI now has access to.  With the creation of local intelligence “fusion centers” the past several years, there has been a radical expansion in the data available to agents; the information so far released indicated the guidelines would further eliminate barriers to information.
 
This move is indicative of the overall shift in the FBI from a law enforcement body to “a national security organization, driven by intelligence,” FBI Director Mueller said in his prepared comments Wednesday.
 
To facilitate this change, the new framework unifies the once-separate guidelines for five different FBI areas – criminal, national security, foreign intelligence, civil disorder and demonstrations.  The Department of Justice has repeatedly claimed that this “harmonizing” process would, as Attorney General Mukasey said in a speech in August, “eliminate arbitrary differences in the standards” towards better intelligence gathering. But civil rights groups and members of Congress have raised concerns over whether this removes the barriers protecting civil rights across all areas.
 
Each specific area has its own protections, German notes. The criminal side has stronger requirements for wiretaps, warrants and other surveillance, but as the recent Foreign Intelligence Surveillance Act (FISA) and National Security Letter issues demonstrate, there is a much lower threshold of proof for the national security and foreign intelligence areas. The ultimate results of “harmonizing,” said German, is to “water down protections on each side.”
 
Members of Congress also raised questions on this central move towards national security and away from traditional law enforcement.
 
“This is still not a closed question,” said Sen. Jon Kyl (R-Ariz.) during the hearings. “If we don’t give the authority, then they shouldn’t be doing so.”
 
“The definition of ‘foreign intelligence’ is broad,” said Sen. Feingold in his statements at Wednesday’s hearing. “We are concerned about the extent to which the FBI may be permitted to gather or use information about Americans under the rubric of foreign intelligence gathering when there is no suspicion of a crime, threat to national security, or any other wrongdoing.”
 
Beyond the civil rights concerns raised, German also pointed out that the focus on broad intelligence gathering operations has consistently proven ineffective. “Where [intelligence methods] are so spread out collecting all sorts of information with out any reasonable cause, it’s easy to lose the pieces that are most effective,” he said. “What is known to be most effective criminal justice methods, which take you from logical lead to logical lead, known bad guy to known bad guy.”
 
Questions of Timing and Secrecy
 
The questions raised by members of Congress and civil rights group alike have been further complicated by the secrecy surrounding the new guidelines. The hearings in both the House and Senate Judiciary Committees were fraught with tense exchanges based on the lack of information.
 
“You can’t run a government on separation of powers without good faith from the branches,” Senate Judiciary Committee Co-chairman Arlen Specter (R-Pa.) told Mueller Wednesday.
 
The initial Congressional inquiries into the guidelines were spurred by an Associated Press article by Lara Jakes Jordan that brought the Attorney General’s plans to light. In response, as noted in the August 20 letter from Sens. Feingold, Durbin, Kennedy and Whitehouse, the guidelines were “available to congressional staff for only a few hours at a time over the course of a week and a half – during the August congressional recess.” The House and Senate Judiciary members and staff were not allowed to copy the guidelines.
 
Despite written requests from the chairs of both the House and Senate Committees the Attorney General refused to provide the guidelines outside of these supervised briefings.
 
“I remember as a young man enjoying reading Joseph Heller’s novel, Catch-22. I suspect the attorney general has read the same book, because his response is right out of Catch-22,” said Sen. Leahy during the hearings. “He’s saying he can’t give us copies of the proposed guidelines until they are finalized, but, of course, once they are finalized they are no longer proposed or subject to change.”
 
Mueller defended the Bureau’s secrecy at the hearings, noting that the guidelines are still in draft form and that the FBI has been far more open to oversight and public comments than ever before.
 
The two days of hearings also focused on numerous other related issues regarding FBI activities – including the anthrax investigation, mortgage fraud prosecution, and the use of National Security Letters to obtain journalists’ phone records. Both House and Senate members expressed frustration at being unable to fulfill the Committees’ mandate to oversee the FBI and skepticism of the Bureau’s ability to monitor its own compliance with constitutional standards.
 
“This is a situation where the FBI must police itself and I’m not sure the guidelines provide adequate safeguards to prevent overreaching,” said Sen. Feingold.
 
Despite the heated exchanges and pressure from both members of Congress and civil rights groups, the DOJ has not indicated any change in its plan to implement the guidelines October 1st. As Durbin’s Chief Counsel, Joseph Zogby noted during the ACS panel last week, the decision to implement these guidelines on October 1st – so close to the elections – has “raised some questions” but that his office did not receive a “persuasive answer as to why this has to be done now and not in the new administration.”
 
 ”The Bush administration’s message once again is ‘trust us,’ ” said Anthony D. Romero, Executive Director of the ACLU. “After eight years of historic civil liberties abuses, the American people know better. From the U.S. attorney purges to the abuse of National Security Letters, the Department of Justice and the FBI have repeatedly shown they are incapable of policing themselves.”

Robert Chlala is a freelance journalist based in Los Angeles. He has worked for over 7 years in policy and communications with non-governmental organizations dealing with the Middle East, international law, immigration and other pressing issues. He can be reached at robert.chlala@gmail.com