June 23, 2011 | By Jennifer Lynch

New Changes to FBI Guidelines Call into Question Proposal to Extend FBI Director’s Term

This month, the New York Times reported that the FBI has updated its internal domestic investigations guidelines to provide its agents with “significant new powers.” According to the Times, this update will provide agents with “more leeway to search databases, go through household trash or use surveillance teams to scrutinize the lives of people who have attracted their attention.” These changes are especially troubling as they come on the heels of the Obama Administration’s efforts to extend FBI Director Robert Mueller’s term and on recent reports that the Bureau has once again engaged in controversial surveillance activities directed at “prominent peace activists and politically-active labor organizers.”

The FBI’s Domestic Investigations and Operations Guide (also known as the “DIOG”) is a collection of procedures, standards, approval levels, and explanations, created by the FBI, that implements current Attorney General’s Guidelines as they apply to Bureau investigations.

The Bureau most recently updated the DIOG in 2008, after then-Attorney General Mukasey introduced new AG Guidelines that reduced restrictions on certain surveillance protocols by allowing agents to open investigative “assessments” on Americans and American organizations. As we wrote in a blog post at the time, these assessments, which are still in use today, “allow the use of intrusive techniques to surreptitiously collect information on people suspected of no wrongdoing and no connection with any foreign entity.” Even though the DIOG impacts all domestic investigations, the FBI failed to release the 2008 DIOG publicly until EFF filed a FOIA request and later a lawsuit in 2009.

The recent announcement that FBI has once again updated the DIOG to further relax restrictions on invasive investigatory techniques follows the Obama Administration’s push to extend the 10-year term of the FBI Director, which is set to expire this year. The convergence of these two events—the amendment to the DIOG and the proposed extension of the FBI Director’s term—is important. Both were put in place 35 years ago in direct response to the extensive FBI abuses that occurred in the 60s and 70s during the nearly 50-year reign of the FBI’s first director, J. Edgar Hoover.

In the last few years, the DOJ Inspector General found in several reports available here, here, here, and here (all pdfs) that the FBI engaged in significant abuses during Director Mueller’s term as well, including investigating domestic advocacy organizations and engaging in illegal electronic surveillance practices that resulted in what the DOJ IG described as "an egregious breakdown" in the FBI's responsibility to comply with the Electronic Communications Privacy Act. Last fall, the IG also investigated and uncovered “significant abuses and cheating” on an exam that all FBI agents, analysts, and technicians must take on implementing the DIOG, (See Investigation of Allegations of Cheating on the FBI’s Domestic Investigations and Operations Guide (DIOG) Exam, September 2010 (pdf) at p. 30), suggesting the Bureau does not take seriously the training of its staff on these important rules.

None of these events inspire confidence that the Bureau is doing as much as it should to protect our civil liberties. Although Valerie Caproni, the FBI’s general counsel, has described the latest changes to the DIOG as “more like fine-tuning than major changes,” the changes would allow much broader FBI surveillance of our private and protected activities with much less oversight. In one of the most problematic changes, agents will now be allowed to search for information about a person in a commercial or law enforcement database without any firm evidence for suspecting criminal or terrorist activity and without making any record of their search. Not requiring agents to put information uncovered from these searches into F.B.I. files unless they later opened an assessment will undoubtedly make it much harder to detect and prevent agents from using these databases for non-intelligence related purposes and may in fact overstep the AG Guidelines by creating a new “pre-assessment” stage.

The new Guidelines include additional important changes. For example, the Times notes “the new manual says an agent or an informant may surreptitiously attend up to five meetings” of any group, including those organized for political purposes, before the agent or informant is subject to any rules that would restrict such speech-suppressing activities. The FBI used these tactics recently to infiltrate activists’ circles in the Midwest and Arizona by posing as a lesbian mother to befriend lesbians with small children and by infiltrating political meetings to befriend anarchists. Further, the new Guidelines will relax restrictions on administering lie-detector tests and searching people’s trash and will also allow agents to use secret surveillance squads repeatedly to track targets..

Although the Times provides some information on the new Guidelines, the FBI has not yet made the 2011 DIOG available to the public. This was the same story three years ago, before EFF filed its FOIA lawsuit. At that time the Bureau repeatedly stated its interest in public and lawmaker comments on the 2008 updates, despite the fact that it never made a complete copy available to the public (even the 2008 version released to EFF (available here) was heavily redacted). The Bureau also stated at the time that it “had very substantial outreach to privacy and civil liberties groups”—as if to imply that consulting with these groups ensured the DIOG would protect Americans’ privacy and civil liberties and thus these groups had added their stamp of approval.

We hope the FBI is not planning to repeat this charade in 2011. On Friday, Senators Leahy and Grassley sent a letter to FBI Director Robert Mueller, urging the FBI to provide an updated briefing to the Senate Judiciary Committee on proposed changes to the DIOG. Apparently, the Committee has not been briefed on the revisions since sometime last year.

The Senate Judiciary Committee approved an extension to Mueller’s term on June 16, and Congress will vote on it some time before August 3. It is crucial that Congress and the public at large have access to the new DIOG before that time so that Americans can fully analyze and debate the implications of the unprecedented (and perhaps unconstitutional) proposal to extend the FBI Director’s term.


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