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DoJ’s Changes to Intelligence-Gathering and Investigative Regulations

On September 29, 2008, the Department of Justice issued new FBI Guidelines on intelligence-gathering and investigative regulations, and has proposed changes to the federal regulation 28 C.F. R. part 23. Learn more about why the Brennan Center objects to the changes, and what we are doing in response.

Published: November 7, 2008

In the remaining months of the Bush administration, the Department of Justice has relaxed restrictions on when the Federal Bureau of Investigation can begin investigations, and worked to increase intelligence-sharing among local, state, and federal law enforcement agencies as well as with federal (intelligence) agencies in ways that will compromise civil liberties (through a change in federal regulation 28 C.F.R. part 23).


FBI Guidelines          28 C.F.R. part 23 



The FBI’s power to investigate people or organizations is not governed by statute, but determined by internal rules issued by the Attorney General. Attorney General Mukasey proposed several changes to the FBI guidelines governing domestic investigations on national security issues. The BrennanCenter is concerned that the new rules will result in widespread domestic spying and targeting of U.S. citizens, residents, and visitors based purely on race and travel history.


On August 12, 2008, the BrennanCenter signed with about 40 concerned legal, faith-based, and public interest organizations a letter to urge Attorney General Michael Mukasey to release an official draft of the guidelines so that Congress and the public could provide meaningful input and vet the guidelines before they were adopted. In response to broad concern, Attorney General Michael Mukasey agreed to delay signing into effect the proposed FBI guidelines until after his appearance before the Senate Judiciary Committee on September 17, 2008, in a hearing on “Oversight of the Federal Bureau of Investigation.


On September 29, 2008, the Department of Justice issued the new guidelines, consolidating the previously separate rules on investigations regarding national security, criminal investigations, and the collection of foreign intelligence into one, overarching document.


    28 C.F.R. PART 23

    The Department of Justice has proposed changes to 28 C.F.R. part 23 that will eliminate safeguards preventing the collection of false information and will allow for intelligence-gathering by intrusive and offensive means.  The sharing of this information with federal law enforcement and agencies may lead to harmful federal actions, such as triggering an investigation against individuals, based on possibly false information, or placing irrelevant names on watch lists. 


    The DoJ collected comments on the proposed changes to 28 C.F.R. part 23 through September, 2, 2008.  The BrenanCenter put together a non-technical memo, outlining the damaging effects the changes could cause.  On August 27, 2008, the BrennanCenter submitted comments to DoJ, documenting its objections to the proposed changes.