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Standards for Opening an FBI Investigation So Low They Make the Statistic Meaningless

The standards for opening FBI inquiries are so unreasonably low that directors of the FBI have been reluctant to clearly articulate them in public.

May 2, 2017

Cross-posted from Just Secur­ity

Depart­ment of Home­land Secur­ity Secret­ary John Kelly recently told an audi­ence that terror­ism is “as threat­en­ing today” as it was on 9/11As evid­ence, he used the oft-repeated stat­istic that the FBI has active terror­ism invest­ig­a­tions in all 50 states. This claim has fueled public fear of terror­ism because, by and large, the public believes that the FBI must have a reas­on­able factual basis to open an invest­ig­a­tion. It does not. Instead, the stand­ards for open­ing FBI inquir­ies are so unreas­on­ably low that direct­ors of the FBI have been reluct­ant to clearly artic­u­late them in public.

FBI Director James Comey test­i­fied on March 20 before the House Intel­li­gence Commit­tee about his agency’s invest­ig­a­tion into whether the Trump campaign colluded with the Russian govern­ment to influ­ence the 2016 pres­id­en­tial elec­tion. Lawmakers asked Comey seven separ­ate times about the FBI’s stand­ard for open­ing an invest­ig­a­tion. One such ques­tion came from Rep. Mike Turner, a Repub­lican from Ohio, who asked whether the FBI needed “some action or inform­a­tion”—besides a record that an indi­vidual atten­ded a meet­ing, was paid to appear at a confer­ence, or traveled abroad—­be­fore open­ing an FBI coun­ter­in­tel­li­gence invest­ig­a­tion.

Comey respon­ded, saying that there are a “couple differ­ent [stand­ards] at play.” Elab­or­at­ing, he said the FBI needs a “cred­ible alleg­a­tion of wrong­do­ing or reas­on­able basis to believe that an Amer­ican” is commit­ting a federal crime in order to initi­ate an invest­ig­a­tion.

The stand­ards “at play” that Comey refers to are not set by an act of Congress. They are outlined in the Attor­ney General Guidelines, a Justice Depart­ment rule­book, which sets the para­met­ers for the FBI’s domestic oper­a­tions. These guidelines—which can be changed at the will of any Attor­ney Gener­al—came into exist­ence in 1976 after the Senate Church Commit­tee invest­ig­a­tion into J. Edgar Hoover’s FBI and its abuses of power. 

Edward Levi, attor­ney general under Pres­id­ent Gerald Ford, estab­lished the first set of guidelines. These rules curtailed the FBI’s oft-abused domestic coun­ter­in­tel­li­gence power. They required agents to artic­u­late a reas­on­able, factual indic­a­tion that crim­inal activ­ity has or may occur to justify inform­ant task­ing, mail covers, and other aggress­ive forms of invest­ig­a­tion.

Though the stand­ards outlined in the Levi Guidelines gradu­ally loosened in the three decades to follow, the biggest changes happened after Sept. 11, 2001. The most drastic change came in 2008 with a set of guidelines issued by then-Attor­ney General Michael Muka­sey, who today is an ally of Pres­id­ent Trump. The 2008 Guidelines created a new type of invest­ig­a­tion called an “assess­ment.” Assess­ments permit phys­ical surveil­lance, data­base searches, inter­views, racial and ethnic mapping, and the recruit­ment and task­ing of inform­ants without any factual or crim­inal predic­ate, that is, without any object­ive basis to suspect the target of the invest­ig­a­tion has viol­ated any law, or is likely to in the future. The guidelines place no outside time limit on assess­ments, though FBI policy requires super­vis­ory review every 30 days. (For more on the 2008 Attor­ney General Guidelines, check out Domestic Intel­li­gence: New Powers, New Risks, by Emily Berman from the Bren­nan Center for Justice.)

Agents can open assess­ments by claim­ing they have an “author­ized purpose,” like prevent­ing crime or terror­ism, but such subject­ive criteria allow agents immense discre­tion. From 2009 to 2011, the first two years the Muka­sey guidelines were in place, the FBI opened over 82,325 assess­ments, of which only 3,315 found inform­a­tion that warran­ted open­ing prelim­in­ary or full invest­ig­a­tions. This data is even more aston­ish­ing given the low evid­en­tiary stand­ard needed to open a prelim­in­ary invest­ig­a­tion, which can last up to 18 months.

Prelim­in­ary invest­ig­a­tions require only “inform­a­tion or an alleg­a­tion,” and contrary to Comey’s testi­mony, the alleg­a­tion does not need to be “cred­ible.” A 2010 Inspector General report found the FBI opened prelim­in­ary invest­ig­a­tions on polit­ical advocacy organ­iz­a­tions based on mere spec­u­la­tion that the subjects might commit a crime in the future, and the agents them­selves often made the required “alleg­a­tions.” Only full invest­ig­a­tions, which allow elec­tronic wiretaps and search warrants, require the reas­on­able indic­a­tion of wrong­do­ing that Comey described in response to Rep. Turn­er’s ques­tion. This too is a relat­ively low stand­ard, substan­tially lower than the prob­able cause neces­sary to obtain a search warrant or wiretap.

Comey’s recent testi­mony isn’t the first time an FBI director misstated the stand­ards. Almost seven years earlier, during a 2010 Senate Judi­ciary Commit­tee hear­ing, Sen. Richard Durbin (D-Ill.) asked Comey’s prede­cessor, Robert Mueller, if the FBI required “suspi­cion of wrong­do­ing before there is surveil­lance of an indi­vidual or surveil­lance of a loca­tion?”

Mueller answered “yes.” His response contra­dicted the stand­ards recently set by Muka­sey’s guidelines, which were the subject of the hear­ing. The FBI later sent a letter to Durbin and Sen. Patrick Leahy (D-Vt.) acknow­ledging that Mueller “miss­poke” when he test­i­fied that there is “a require­ment of ‘sus­pi­cion of wrong­do­ing’ in order for the FBI to engage in surveil­lance of an indi­vidual or loca­tion.” Perhaps the FBI direct­ors’ reti­cence to publicly artic­u­late the true stand­ards for open­ing an invest­ig­a­tion reflects a tacit acknow­ledge­ment the stand­ards are unreas­on­able, which, of course, they are by defin­i­tion.

The FBI may have substan­tial evid­ence that the Trump campaign colluded with the Russian govern­ment to influ­ence the U.S. elec­tion, just as it may have iden­ti­fied real terror­ists to invest­ig­ate in all 50 states, as Secret­ary Kelly suggests. But given the low thresholds for initi­at­ing cases, the mere fact the FBI has opened invest­ig­a­tions is no longer a mean­ing­ful stat­istic. Many of us have long warned that lower­ing the evid­en­tiary require­ments govern­ing FBI invest­ig­a­tions would lead to abuses of power that would dispar­ately impact the most vulner­able in our soci­ety: immig­rants, communit­ies of color, and polit­ical dissid­ents. But now highly politi­cized FBI invest­ig­a­tions are target­ing the most power­ful people in the coun­try too, affect­ing our demo­cratic processes in troub­ling ways. It is past time to hold the FBI account­able to a higher stand­ard.  Restor­ing adequate controls on FBI invest­ig­at­ive author­it­ies will protect all Amer­ic­ans from unwar­ran­ted scru­tiny and will enable effect­ive over­sight. Reas­on­able stand­ards will not harm our secur­ity—they will improve it by ensur­ing law enforce­ment resources are focused where the facts demon­strate they are needed.