Previous Politech message: "FBI gets more surveillance powers; Cato's Pilon says no problem" http://www.politechbot.com/p-03591.html --- Remarks of Attorney General John Ashcroft (Note: The Attorney General Often Deviates from Prepared Remarks) Attorney General Guidelines May 30, 2002 In its 94-year history, the Federal Bureau of Investigation has been many things -- the defender of the nation from organized crime, the guardian of our security from international espionage, and the tireless protector of civil rights and civil liberties for all Americans. On September 11, a stunned nation turned once again to the brave men and women of the FBI, and they, once again, answered the call. I spent the hours, days, and most of the first weeks after the attack in the FBI's Strategic Information and Operations Center with Director Mueller. Even today, eight months later, it is difficult to convey the professionalism, dedication and quiet resolve I witnessed in those first, 24-hour days. I saw men and women work themselves beyond fatigue to prevent new terrorist attacks. I witnessed individuals put aside their personal lives, personal agendas and personal safety to answer our nation's call. From the first moments we spent together, launching the largest investigation in history, we understood that the mission of American justice and law enforcement had changed. That day, in those early hours, the prevention of terrorist acts became the central goal of the law enforcement and national security mission of the FBI. And from that time forward, we in the leadership of the FBI and the Department of Justice began a concerted effort to free the field agents - the brave men and women on the front lines - from the bureaucratic, organizational, and operational restrictions and structures that hindered them from doing their jobs effectively. As we have heard recently, FBI men and women in the field are frustrated because many of our own internal restrictions have hampered our ability to fight terrorism. The current investigative guidelines have contributed to that frustration. In many instances, the guidelines bar FBI field agents from taking the initiative to detect and prevent future terrorist acts unless the FBI learns of possible criminal activity from external sources. Under the current guidelines, FBI investigators cannot surf the web the way you or I can. Nor can they simply walk into a public event or a public place to observe ongoing activities. They have no clear authority to use commercial data services that any business in America can use. These restrictions are a competitive advantage for terrorists who skillfully utilize sophisticated techniques and modern computer systems to compile information for targeting and attacking innocent Americans. That is why the Attorney General's guidelines and procedures relating to criminal investigations and national security were high on the list of action items for reform. Beginning in the 1970s, guidelines have been developed to inform agents of the circumstances under which investigations may be opened, the permissible scope of these investigations, the techniques that may be used, and the objectives that should be pursued. These guidelines provide limitations and guidance over and above all requirements and safeguards imposed by the Constitution and beyond the legal framework established by federal statutes enacted by Congress. Promulgated for different purposes and revised at various times, the guidelines currently cover FBI investigations, undercover operations, the use of confidential informants, and consensual monitoring of verbal communications. The guidelines defining the general rules for FBI investigations, for example, were first issued over 20 years ago. They derive from a period in which Soviet communism was the greatest threat to the United States, in which the Internet did not exist, and in which concerns over terrorist threats to the homeland related mainly to domestic hate groups. Shortly after September 11, I took two steps to free FBI field agents to prevent additional terrorist attacks. First, I authorized the FBI to waive the guidelines, with headquarters approval, in extraordinary cases to prevent and investigate terrorism. That authority has been used, but I am disappointed that it was not used more widely. This experience over the past few months reinforces my belief that greater authority to investigate more vigorously needs to be given directly to FBI field agents. Second, I directed a top-to-bottom review of the guidelines to ensure that they provide front-line field agents with the legal authority they need to protect the American people from future terrorist attacks. That comprehensive review showed that the guidelines mistakenly combined timeless objectives - the enforcement of the law and respect for civil rights and liberties - with outdated means. Today, I am announcing comprehensive revisions to the Department's investigative guidelines. As revised, the guidelines reflect four overriding principles. First, the war against terrorism is the central mission and highest priority of the FBI. This principle is stated explicitly in the revised guidelines, and it is facilitated and reinforced through many specific reforms. The guidelines emphasize that the FBI must not be deprived of using all lawful authorized methods in investigations, consistent with the Constitution and statutory authority, to pursue and prevent terrorist actions. Second, terrorism prevention is the key objective under the revised guidelines. Our philosophy today is not to wait and sift through the rubble following a terrorist attack. Rather, the FBI must intervene early and investigate aggressively where information exists suggesting the possibility of terrorism, so as to prevent acts of terrorism. The new guidelines advance this strategy of prevention by strengthening investigative authority at the early stage of preliminary inquiries. Also, even absent specific investigative predicates, FBI agents under the new guidelines are empowered to scour public sources for information on future terrorist threats. Third, unnecessary procedural red tape must not interfere with the effective detection, investigation, and prevention of terrorist activities. To this end, the revised guidelines allow Special Agents in Charge of FBI field offices to approve and renew terrorism enterprise investigations, rather than having to seek and wait for approval from headquarters. I believe this responds to a number of concerns we have heard from our field agents. The guidelines expand the scope of those investigations to the full range of terrorist activities under the USA Patriot Act. These major changes will free field agents to counter potential terrorist threats swiftly and vigorously without waiting for headquarters to act. Fourth, the FBI must draw proactively on all lawful sources of information to identify terrorist threats and activities. It cannot meet its paramount responsibility to prevent acts of terrorism if FBI agents are required, as they were in the past, to blind themselves to information that everyone else is free to see. Under the revised guidelines, the FBI can identify and track foreign terrorists by combining its investigative results with information obtained from other lawful sources, such as foreign intelligence and commercial data services. To detect and prevent terrorist activities, the FBI under the revised guidelines will also be able to enter and observe public places and forums just as any member of the public might. Let me pause here for a moment. What I am saying is this: FBI field agents have been inhibited from attending public events, open to any other citizen - not because they are barred by the U.S. Constitution, or barred any federal law enacted by Congress, but because of the lack of clear authority under administrative guidelines issued decades ago. Today, I am clarifying that, for the specific purpose of detecting or preventing terrorist activities, FBI field agents may enter public places and attend events open to other citizens, unless they are barred from attending by the Constitution or federal law. Our new guideline reads, "For the purpose of detecting or preventing terrorist activities, the FBI is authorized to visit any place and attend any event that is open to the public, on the same terms and conditions as members of the public generally." I believe in the principle of community policing, in which an active, visible law enforcement presence is linked to communities and neighborhoods. Local police can enter public places and attend public events in their communities, and they detect and prevent crime by doing so. To protect our communities from terrorism, the FBI must be free to do the same. The revised guidelines will take effect immediately and will be incorporated into the training of FBI agents. These guidelines will also be a resource to inform the American public and demonstrate that we seek to protect life and liberty from terrorism and other criminal violence with a scrupulous respect for civil rights and personal freedoms. The guidelines are available on the internet at www.usdoj.gov. <http://www.usdoj.gov> The campaign against terrorism is a campaign to affirm the values of freedom and human dignity that transcend national boundaries, racial classifications, and religious differences. Called to the service of our nation, we are called to the defense of liberty for all men and women. On behalf of the Department of Justice and the people of this great nation, I thank Director Mueller and the FBI for their hard work to defend freedom. And I thank Deputy Attorney General Larry Thompson, and Assistant Attorneys General Michael Chertoff and Viet Dinh for their efforts in revising the guidelines to honor these values. # # # --- Fact Sheet Attorney General's Guidelines: Detecting and Preventing Terrorist Attacks Understanding the Problem: Past Investigative Guidelines Have Hampered the FBI In Conducting Investigations Capable of Preventing Terrorist Attacks Problem #1: Emphasis on Prosecuting Past Crimes Instead of Preventing Future Crime The previous guidelines emphasized investigation and prosecution of past crimes. They generally barred the FBI from taking the initiative to detect and prevent future crimes, unless it learned of possible criminal activity from external sources. As a result, the FBI was largely confined to a reactive role. * General Internet Searches Could Not Be Conducted, Unless Tied to a Specific Investigation. In the past, there was no clear basis for conducting online research for counterterrorism purposes-even of publicly available information-except when investigating a specific case. For example, FBI agents could not conduct online searches to identify websites in which bomb-making instructions or plans for cyberterrorism are openly traded and disseminated. * The FBI Had No Clear Authority To Use Commercial Data Services Any Business in America Could Use. Under previous guidelines, the FBI could not use commercial data mining services-entities that collect and analyze information on various topics, such as threats to computer systems-unless in connection with a particular investigation. In other words, the FBI was sharply limited in its ability to use services that private businesses regularly hire to assess threats against them. * Information Collected in the Earliest Investigative Stages Could Only Be Used to Investigate Specific Crimes, Not Groups Suspected of Terrorism. Under the old Guidelines, preliminary inquiries-where agents gather information before enough evidence has been uncovered to merit an outright investigation-could be used only to determine whether there was enough evidence to justify investigating an individual crime. They could not be used to determine whether to open a broader investigation of groups involved in terrorism (i.e., "terrorism enterprise investigations"). * Investigations of Criminal Groups Were Impeded by Limits on Scope, Duration, and Red Tape. The previous guidelines impeded the effective use of criminal intelligence investigations (i.e., investigations of criminal enterprises) by imposing limits on the scope of such investigations, short authorization periods, and burdensome approval and renewal requirements. * No Clear Authority to Visit Public Places that Are Open to All Americans. Under the old guidelines, FBI field agents were inhibited from visiting public places, which are open to all other citizens. Agents avoided them not because they were barred by the Constitution, or any federal statute, but because of the lack of clear authority under administrative guidelines issued decades ago. Solution #1: Detect and Neutralize Terrorists Before They Attack The new guidelines reflect the Attorney General's mission for the Justice Department's war on terror: to neutralize terrorists before they are able to strike, not simply to investigate past crimes. The revised guidelines create new information- and intelligence-gathering authorities to detect terrorist plots, and strengthen existing provisions to promote effective intervention to foil terrorists' plans. * Enhancing Information Gathering. The new guidelines strengthen the FBI's intelligence-gathering capabilities by expressly stating that agents may engage in online research, even when not linked to an individual criminal investigation. They also authorize the FBI to use commercial data mining services to detect and prevent terrorist attacks, independent of particular criminal investigations. * Allowing FBI Field Agents to Use Information Collected in the Earliest Stages To Investigate Groups Suspected of Terrorism. The FBI will be able to use preliminary inquiries to determine whether to launch investigations of groups involved in terrorism (i.e., "terrorism enterprise investigations"). * Expanding the Scope and Duration of Investigations, and Easing Red Tape for FBI Field Agents. The guidelines will expand the scope of criminal intelligence investigations, lengthen their authorization periods, and ease the approval and renewal requirements. This flexibility enhances the FBI's terrorism-preventing function and helps the agents in the field. * Authorizing the FBI to Have Normal Public Access to Public Places. The new guidelines clarify that FBI field agents may enter any public place that is open to other citizens, unless they are prohibited from doing so by the Constitution or federal statute, for the specific purpose of detecting or preventing terrorist activities. The guidelines do not, and cannot, nullify any existing Constitutional or statutory duty to obtain judicial approval as required to conduct their surveillance or investigations. Problem #2: FBI Headquarters Was Responsible for Decision-Making, But Lacked the Field Information Needed to Make Sound Decisions Under the old guidelines, decision-making authority was centralized at FBI headquarters, while field offices were largely responsible for intelligence analysis. This reversed the proper order: what was centralized (decision-making) should have been devolved, and what was devolved (analysis) should have been centralized. * Previous Guidelines Placed Roadblocks in Front of Agents' Investigations. Before the revisions, FBI field agents were hampered by burdensome rules requiring them to secure headquarters' approval before launching counterterrorism investigative activities. As a result, field agents lost significant investigative opportunities as they waited for headquarters to consider their requests over a period of weeks, or even months. * FBI Headquarters Lacked the Intelligence and Analysis It Needed. The guidelines contained no clear authority to engage in counterterrorism information gathering and analysis, apart from investigations in particular criminal cases. FBI headquarters thus lacked the ability to analyze the information necessary to make informed investigative decisions. Solution #2: Field Offices Are Authorized to Make More Decisions, and FBI Headquarters Will Analyze Information The revised guidelines enhance FBI headquarters' ability to analyze critical intelligence information, and enable field offices to make more independent investigative decisions. The revised guidelines centralize what should be centralized (analysis), and devolve what should be devolved (decision-making). * Strengthening FBI Headquarters' Intelligence-Gathering and Analysis Capabilities. The revised guidelines allow the FBI to operate counterterrorism information systems, and to collect and retain information from all lawful sources, including publicly available sources, for that purpose. They also expressly state that all such activities must be based on a valid law enforcement purpose, and must be consistent with applicable statutes and regulations. The guidelines prohibit the FBI from using this authority to keep files on citizens on the basis of their constitutionally protected activities. * Increasing Decision-Making Authority in the Field. Special Agents in Charge at FBI field offices may now approve and renew terrorism enterprise investigations. (Under the old guidelines only by the Director or an Assistant Director at FBI headquarters could approve such investigations.) The revisions also allow a Special Agent in Charge to authorize for up to a year preliminary inquiries, which are used to gather information about a crime before enough evidence is discovered to justify a full investigation. (The old guidelines only authorized 90-day preliminary inquires, and required the approval of FBI headquarters for 30-day extensions.) Problem #3: Agents Did Not Use Lawful Investigative Methods When Investigating Some Suspected Terrorists The old guidelines lacked clear direction to use lawful, authorized methods to prevent terrorism. As a result, FBI agents have declined to use available investigative techniques when investigating crimes committed by affiliates of some political and religious organizations. * The Lack of Clear Authority Frustrated the Sheik Rahman Investigation. In 1993, the FBI received intelligence information about terrorist activities planned by Sheik Abdel Rahman-who later would be convicted of plotting to bomb landmarks in New York City, including the World Trade Center in 1993. Because of ambiguity in the then-current guidelines, the FBI did not call Rahman before a grand jury, question him, or conduct surveillance of his offices or the religious buildings where he met with his co-conspirators. Solution #3: Investigate Suspected Terrorists on a Neutral Basis The revised guidelines make clear that investigations of suspected terrorists with ties to religious and political organizations will proceed according to the principle of neutrality. As President Bush has noted, our enemy is not any one faith or creed, but "a radical network of terrorists." * Lawful Techniques Can Be Used in All Investigations of Suspected Terrorists. The new guidelines simply clarify that agents who are investigating suspected terrorists, even if they have ties to religious and political groups, could use the same investigative techniques they would use when investigating any other type of organization. At no time will religious or political entities be singled out for special scrutiny, but neither will terrorists with ties to such groups be granted effective immunity from lawful investigations. * Investigations Can Only Take Place When There Is Evidence of Criminal Activity. Under the revised guidelines, agents can investigate suspected terrorists with ties to religious or political groups only when they are acting on the basis of information indicating a possibility of actual criminal activity. All investigative activities must have a legitimate law-enforcement purpose; these new tools do not provide the FBI with the unlimited authority to conduct investigations of any group. * Preserving Constitutional and Statutory Limitations. The work of the FBI remains subject to all applicable constitutional and statutory limitations. The guidelines do not, and cannot, authorize the FBI to do anything prohibited by the Constitution or federal law. Instead, they impose restrictions on FBI investigative activities that supplement other legal limits. The guidelines expressly state that: "All requirements for the use of such methods under the Constitution, applicable statutes, and Department regulations or policies must, of course, be observed." [General Investigations Guidelines, Introduction, § C] * Protecting Constitutional Rights. The guidelines stress that the FBI may not use investigative activities as a pretext for suppressing suspects' constitutional rights. As the guidelines expressly state, "It is important that such investigations not be based solely on activities protected by the First Amendment or on the lawful exercise of any other rights secured by the Constitution or laws of the United States." (General Investigations Guidelines, May 29, 2002) Maintaining Limitations on Undercover Operations: The revised guidelines maintain, and in some respects strengthen, the strict and extensive requirements necessary to justify an undercover investigation that involves infiltration of suspected terrorist groups. Field Agents Continue to Have Extensive Certification Requirements. When applying to conduct such an undercover operation, FBI agents must, among other things, provide headquarters with: 1. A certification that the operation will be conducted with minimal intrusion; 2. A statement as to why the undercover operation is necessary; 3. A description of the procedures that will be used to minimize the acquisition of information that is not relevant to the investigation; and 4. An explanation of how any potential constitutional concerns and any other legal concerns have been addressed. To secure approval for such an undercover operation, FBI agents must also obtain: 1. A letter of concurrence from the appropriate federal prosecutor; 2. Review of the proposed operation by the Undercover Review Committee (composed of FBI and Criminal Division personnel); 3. Approval of the operation by the FBI Director, Deputy Director, or a designated Executive Assistant Director; and 4. Authorization of the undercover operation for a limited period, not to exceed six months. (General Investigations Guidelines, Part III.B(1)(a), (4); Undercover Operations Guidelines, Part IV.A-B, .C(2)(l), .D, .E(1), .F-G.) ------------------------------------------------------------------------- POLITECH -- Declan McCullagh's politics and technology mailing list You may redistribute this message freely if you include this notice. To subscribe to Politech: http://www.politechbot.com/info/subscribe.html This message is archived at http://www.politechbot.com/ Declan McCullagh's photographs are at http://www.mccullagh.org/ ------------------------------------------------------------------------- Like Politech? Make a donation here: http://www.politechbot.com/donate/ -------------------------------------------------------------------------
This archive was generated by hypermail 2b30 : Thu May 30 2002 - 13:02:17 PDT