Concerns about Chilling Effect of Revised FBI
Guidelines
on First Amendment Activities
Center for National Security Studies & Open Society Institute
The Attorney General (AG) has issued revised
guidelines governing the Federal Bureau of
Investigation’s (FBI) surveillance of presumptively
lawful activities. The proposed changes to Guidelines
on General Crimes, Racketeering Enterprise and
Terrorism Enterprise Investigations ("domestic
guidelines") substantially expand the FBI’s powers to
monitor political associations, places of worship,
libraries and use of the World Wide Web. There can be
little question that surveillance under these
guidelines will have a chilling effect on the exercise
of rights to free expression and association protected
by the First Amendment to the Constitution.
Apart from their chilling effect on First Amendment
activity, these changes are most noteworthy for their
irrelevance to preventing either the terrorist attacks
of September 11 2001 or the types of failures of
intelligence or investigation that the FBI has been
faulted for relative to those.
The FBI already had the authority under its distinct
and unrelated (classified) guidelines for Foreign
Intelligence and International Terrorism
investigations ("international guidelines") to carry
out the types of surveillance proposed to be carried
out under the recent changes, without suspicion of
criminal activity. Clearly, the lack of sufficient
authority does not explain the intelligence failures
prior to the September 11 attacks. Ineffective use of
those powers and the information gathered thereby
does.
There is thus no merit to the Attorney General’s
attempt to portray these changes as necessary to
rectify the deficiencies recently identified in the
FBI’s investigations before September. Changes in FBI
internal administrative procedures would be
significantly more responsive to that set of problems.
Recent revelations also suggest that so would
improvements in the Central Intelligence Agency’s
sharing of information with the FBI.
It should also be noted that it is highly unlikely
that the types of surveillance authorized under the
recent changes would have led to identification of the
terrorists who perpetrated the attacks on September
11. They uniformly adopted profiles that emphasized
not drawing attention to themselves as likely
terrorists according to the traditional indicia of
religious, cultural or political association, personal
habits, identity or appearance. They were not active
in mosques, did not participate in political groups,
or articulate commitment to radical causes.
The collection of large amounts of information with no
relationship to terrorist activity will in fact divert
attention and resources that should be targeted at
preventing terrorism.
The types of inquiry that the FBI will now have almost
unbridled power to maintain include broad fishing
expeditions into any and all associations and
according to any and all criteria that the FBI chooses
as long as it is for the permitted purpose. License
plates of all people attending a place of worship may
be noted down. So may the presence of people at
political, intellectual, academic or theological
discussions. The FBI may tape the sermons or other
proceedings during worship services. It may use
commercial databases and data-mining services and
software to collect information about movements,
habits and tastes to generate patterns and lists of
individuals, according to the broadest criteria.
Under the old domestic guidelines "preliminary
inquiries" -- investigations without any reasonable
indication of criminal activity -- could be maintained
by the FBI for 90 days. Beyond the 90 days, and in the
absence of evidence of criminal activity, FBI
headquarters had to approve the investigations. Under
the changed guidelines, these investigations may
continue for one year absent any indication of
criminal activity, and without any supervision or
approval from FBI headquarters as to their propriety
and legality.
If law abiding citizens know that their first
amendment activities could lead to their being
profiled and spied on, for example for membership in a
particular church or mosque, or for engaging in
charitable work through that faith community, their
exercise of their rights will be chilled.
While the stated intention of the new guidelines is to
identify terrorist activity, they contain no
protection against misuse against persons who hold
disfavored political or religious opinions. That these
concerns are not far-fetched is borne out by the
exactly analogous FBI abuses, the "COINTELPRO" program
among others, which led to adoption of the guidelines
in the first instance. Under that program civil
rights, labor and peace groups were systematically
spied upon by the FBI, in collaboration with local
police and private groups. Furthermore, the program
included activities of "agents provocateurs".
Indeed, these abuses continued even after adoption of
the guidelines, when the FBI spied on the Committee in
Solidarity with the People of El Salvador (CISPES)
under the classified foreign terrorism guidelines.
What that suggests is that, rather than loosening the
domestic guidelines for surveillance, what is required
in more effective oversight of the inevitably enhanced
use of the very considerable powers that the FBI
already possesses.
For more information, contact:
Ken Gude
Policy Analyst
The Center for National Security Studies
1120 19th Street, NW, 8th Floor
Washington, D.C. 20036
(202) 721-5655, fax (202) 530-0128
| 
