Civil Liberties Groups Criticize New Guidelines
by Bill Miller, Washington Post
Saying that the FBI’s own rules have provided terrorists with a “competitive advantage,” Attorney General John D. Ashcroft unveiled new guidelines yesterday that will permit agents to more freely conduct surveillance at political rallies and religious gatherings, surf the Internet and mine commercial databases for information.
The changes give the FBI -- whose primary mission now is preventing terrorist attacks -- greater ability to gather the intelligence it needs, Ashcroft said. They loosen guidelines imposed after FBI domestic spying scandals of the 1960s and 1970s.
“Men and women of the FBI in the field are frustrated because many of our own internal restrictions have hampered our ability to fight terrorism,” Ashcroft declared. “The current investigative guidelines have contributed to that frustration.”
But the rule changes, which take effect immediately, quickly drew sharp criticism from civil liberties groups, political activists and some members of Congress, who said they could encourage snooping without cause and a return to the kind of abuses for which the regime of then-FBI Director J. Edgar Hoover became infamous.
“Americans have not forgotten the abuse of civil liberties which took place in the ‘60s and ‘70s under the name of law enforcement,” said Rep. Dennis J. Kucinich (D-Ohio). “We have to make sure that civil liberties are not placed in jeopardy.”
Laura W. Murphy, director of the national office of the American Civil Liberties Union, contended that the FBI already has enough authority to develop terrorism cases. “They are taking advantage of the public’s concern about 9/11 . . . and they are rushing in a whole new set of powers,” she said.
Ashcroft said the new guidelines include safeguards limiting domestic surveillance to matters involving terrorism and barring the retention of nonrelevant information. President Bush also vowed that civil liberties would be protected, telling reporters earlier in the day that “the initiative that the attorney general will be outlining today will guarantee our Constitution, and that’s important for the citizens to know.”
Just a day after FBI Director Robert S. Mueller III announced plans to broadly reorganize the bureau to improve its ability to thwart terrorism, Ashcroft said his goal was to provide agents with new tools to do the job. He also gave the FBI’s 56 field offices more latitude to launch counterterror investigations without approval from headquarters.
Specifically, he said, the new guidelines replace rules that bar “FBI field agents from taking the initiative to detect and prevent future terrorist attacks or act unless the FBI learns of possible criminal activity from external sources.”
The new rules give FBI agents the power to attend public events open to any other citizen to seek signs of terrorism. Ashcroft noted that state and local police already do this.
Ashcroft said he also was removing a barrier that kept agents from developing leads by surfing public Internet sites unless the work was tied to an individual criminal investigation. In addition, he said, he was changing guidelines so that agents can use commercial databases even if they are not working on a particular case.
Ashcroft’s announcement came after weeks of increasing criticism over whether FBI agents and supervisors mishandled clues that a terror attack might be in the works. On Wednesday, Mueller acknowledged that investigators might have been able to uncover part of the Sept. 11 terror plot had the FBI connected two key warnings last summer with other clues that Osama bin Laden’s al Qaeda terrorist network was keenly interested in aviation.
Those warnings included a Phoenix agent’s July memo that terrorists might be training at U.S. aviation schools and the Aug. 16 arrest of Zacarias Moussaoui, who had aroused suspicions at a Minnesota flight school. Moussaoui has since been indicted as a conspirator in the attacks.
Laurence H. Tribe, a constitutional scholar at Harvard Law School, said the changes do not appear to violate speech or privacy rights. But the FBI must be careful not to attempt to surreptitiously infiltrate groups that gather in public, eavesdrop on private conversations, or attempt to read e-mail without legal authority, he said.
Added former deputy attorney general Eric H. Holder Jr.: “It’s a difficult thing to try to strike the balance between the increased vigilance that we clearly need and at the same time not fall back on the patterns that led to the reforms of the 1970s.”
The FBI has a long and checkered history of spying and harassing domestic groups, dating to 1950s activity against alleged Communist sympathizers and later investigations of the personal lives of civil rights leaders such as Martin Luther King Jr.
The current guidelines were crafted in 1976 after revelations that the FBI had conducted counterintelligence programs aimed at discrediting and disrupting the Ku Klux Klan, black militants and antiwar groups.
In the 1980s, the FBI generated more criticism after the CISPES probe, a broad investigation of liberals suspected of ties to Latin American communists that resulted in no criminal charges.
“Intelligence investigations don’t necessarily result in what you desire, but they can result in information being used in a different way,” said Athan Theoharis, a history professor from Marquette University who has studied the FBI for years. “What they’re doing now is sweeping away that past history, as if it has no relevance.”
The new guidelines do not specifically mention religious institutions. But Justice Department officials confirmed that agents now would be able to enter houses of worship to look for signs of terrorist activity without probable cause or evidence leading them to believe that someone in the group has broken the law, a departure from past practice.
Jason Erb, director of governmental affairs for the Council on American-Islamic Relations, said he fears agents will waste resources on broad sweeps that threaten civil rights instead of focusing on actual evidence of crimes. He said he feared that the net result would be to threaten religious freedoms and quell political dissent.
Others said they understood the need for changes in a new world climate. Roger Pilon, a vice president of the Cato Institute, which promotes principles of limited government and civil liberties, credited Ashcroft with acting to clear up ambiguities about what agents can and cannot do.
“The idea that agents cannot do what ordinary Americans can do strikes me as very odd,” he said.