On June 12, 2011, the New York Times reported that the FBI plans to amend its Domestic Investigations and Operations Guide (“DIOG”), the set of rules that governs the Bureaus’ investigative activities, to extend “significant new powers” to investigators. A subsequent editorial registered concerns about these changes and their civil liberties implications. These reported changes are the latest in a series of alterations to FBI policies implemented in the last decade (discussed in detail in the Brennan Center report Domestic Intelligence: New Powers, New Risks) that have radically expanded the FBI’s power to investigate and collect intelligence information — often without any indication of wrongdoing — about Americans.
According to reports, the impending changes to the DIOG would allow agents to
- conduct searches of commercial or law enforcement databases to gather information about individuals who are not the subject of any official investigation;
- search an individual’s trash for the purpose of finding material that might pressure him or her into becoming a government informant at the “assessment” stage, when the investigation need not be based on any factual predicate; and
- participate covertly in several meetings of groups, such as religious congregations or gatherings of political activists, without any applicable rules at all.
Just as troubling as the reported changes is the fact that the proposed rules themselves remain secret — as do some portions of the existing rules (most notably, those governing covert participation in group meetings). It is therefore impossible to fully evaluate the implications of the reported changes. Nor do we know what other changes have been proposed but not reported in the media.
In the wake of the reports of these changes, FBI officials challenged the Times’ characterization of the amendments, arguing that they are merely some minor “fine-tuning” of the existing rules. These official statements continue another trend: government efforts to downplay the significance of changes to the FBI’s investigative rules. Over the past several years, FBI and Justice Department officials have consistently rejected assertions that changes to the rules have extended new powers to the FBI. An examination of several of these statements shows, however, that they have been misleading, incomplete, or simply incorrect.
Unfortunately, in editorializing on the most recent changes, the Washington Post seems to rely on the FBI’s assurances, calling the changes “relatively modest and reasonable.” While this description of the changes is charitable at best, even the Post recognizes that such powers demand stringent oversight. The Post provides a list of steps that should be taken to prevent FBI excesses: First, the FBI should make the new rules public to the extent possible; second, Congress should “keep close tabs on how the new rules are applied”; and third, the President should nominate a new Justice Department Inspector General, the department’s internal watchdog, to replace the highly effective Glenn Fine who retired from the position several months ago.
This call for oversight is right on the mark, but the list is incomplete. In addition to these measures, the Brennan Center, the Bill of Rights Defense Committee, and Defending Dissent have called on the Senate Judiciary Committee to hold hearings on the new DIOG rules before they go into effect in order to determine how they will work, to insist that the FBI explain why they are necessary, to explore whether they are consistent with existing FBI policy and regulations, and to consider the many constitutional and privacy concerns they implicate.
The FBI should of course have the power to follow every lead. But agents can do that without using the highly intrusive tools permitted by the current rules, much less the even-more-liberal impending rules. Congress should not allow these changes to be mischaracterized as “fine tuning” and slipped through without scrutiny. This time around, a real inquiry is in order.