Time for Answers on FBI’s New Rules

Today, Attorney General Eric Holder appears before the Senate Judiciary Committee for a Department of Justice oversight hearing. This hearing comes just weeks after reports surfaced that the FBI put in place new domestic intelligence guidelines, and it is an important opportunity to press Attorney General Holder on the new rules.

The rule changes grant FBI agents a number of new powers. Among them:

1. Agents reportedly can now search, with no reason for suspicion, an individual’s trash to find material they can use to pressure him or her into becoming a government informant;
2. They have the authority to search commercial or law enforcement databases for information about an individual without first opening an investigation or creating any records of the search, undercutting any possibility of meaningful internal oversight; and
3. Agents may infiltrate political or religious groups up to five times before the FBI’s rules governing such activity (which are themselves secret) apply.

Details of the new FBI guidelines first surfaced in June. Soon after, the Brennan Center urged the Judiciary Committee to investigate the changes before they went into effect. We repeated this call in early October, but the rules reportedly went into effect on October 15.

So what’s next? Is it too late?

Emphatically, no. This issue is far too important for Congress and the public to simply throw up their hands and say “What’s done is done” — the exact result that the FBI hopes to achieve (and has achieved in the past) by implementing the changes quietly.

Today’s hearing is an opportunity for Judiciary Committee members to press Attorney General Holder on the FBI’s rule changes. Here is a list of sample questions, released yesterday by the Brennan Center, that Judiciary Committee members should ask the Attorney General:

• The FBI’s rules are intended to interpret and implement the Attorney General’s guidelines for domestic investigations. The FBI last revised its rules in December 2008, in response to a revision in the Attorney General’s guidelines. What is the justification for the current revision, given that the Attorney General’s guidelines have not changed?
• What changes have been made to the FBI’s rules other than those already reported?
• In general, greater powers call for more oversight — not less. What is the rationale for reducing internal oversight over the FBI’s domestic investigations? In cases where recordkeeping requirements have been eliminated, what mechanisms are in place to protect against abuse?
• Prior versions of the FBI’s rules have been made public, albeit with substantial redactions. Why hasn’t the FBI made any of the new rules public?

As the Brennan Center’s Emily Berman wrote in The Atlantic, “It’s not too late to have a debate on these new authorities — and, if the consensus is that they go too far, to call for their repeal.”