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FBI: Fact or Fiction?

After reports that FBI officials will receive “significant new powers” for domestic investigations, the Brennan Center analyzed the accuracy of several FBI and Justice Department statements on the changes, finding false or misleading information in all of them.

  • Emily Berman
Published: July 27, 2011

On June 12, 2011, the New York Times repor­ted that the FBI’s Domestic Invest­ig­a­tions and Oper­a­tions Guide, or “DIOG,” the set of rules that governs the Bureaus’ invest­ig­at­ive and intel­li­gence collec­tion activ­it­ies, would be amended to extend “signi­fic­ant new powers” to FBI invest­ig­at­ors.

The DIOG imple­ments the Attor­ney General Guidelines for Domestic FBI Oper­a­tions, which them­selves had been altered in Decem­ber 2008 by Attor­ney General Michael Muka­sey.  Similar guidelines first were imple­men­ted in 1976, in an effort to prevent a recur­rence of the Bureau’s excess­ively intrus­ive invest­ig­a­tions uncovered by congres­sional invest­ig­a­tion into the activ­it­ies of the intel­li­gence community.  Over time, the constraints that the Guidelines place on the FBI have gradu­ally eroded.  This erosion culmin­ated in the 2008 Guidelines, which signi­fic­antly loosen restric­tions on the FBI’s invest­ig­at­ive powers and elim­in­ate over­sight require­ments that had been in place for decades.

The major changes wrought by the 2008 Guidelines were as follows:

  1. They create a new invest­ig­at­ive phase, called an “assess­ment,” that permits the FBI to engage in “unpre­dic­ated invest­ig­a­tions,” or invest­ig­a­tions for which there is no factual indic­a­tion of wrong­do­ing or a threat to national secur­ity.
  2. At the assess­ment stage, they permit intrus­ive invest­ig­at­ive tech­niques—such as use of inform­ants, in­ter­views under false pretenses, and unlim­ited phys­ical surveil­lance—that until 2008 had been reserved for use during invest­ig­a­tions for which the FBI has a factual predic­ate.
  3. They weaken proced­ural safe­guard­s—e­lim­in­at­ing or redu­cing many of the require­ments for super­vis­ory approval of partic­u­lar invest­ig­at­ive tech­niques and limits on how long in­vest­ig­at­ive activ­ity may go on—that have been integ­ral to the Guidelines’ regime since it was first imple­men­ted in 1976.

Both at the time the 2008 Guidelines first were imple­men­ted and in response to the recent New York Times article and a subsequent edit­or­ial, federal offi­cials consist­ently have down­played these changes, assert­ing that they did not actu­ally extend any new power to the FBI. 

This docu­ment analyzes state­ments made by FBI and Justice Depart­ment offi­cials to ascer­tain whether they accur­ately char­ac­ter­ize the 2008 Guidelines, the contem­plated changes to the DIOG, and the invest­ig­at­ive powers gran­ted to the FBI.

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Exhibit #1: Former Attor­ney General Michael Muka­sey Argues that his 2008 Guidelines do not Expand the Bureau’s Power to Use Inform­ants

Claim

Michael Muka­sey, Attor­ney General of the United States
Memor­andum for the Heads of Justice Depart­ment Compon­ents, Septem­ber 29, 2008

  • Under the 2002 Guidelines, inform­ants “may be affirm­at­ively tasked to seek inform­a­tion when the purpose is to check leads [before offi­cially open­ing an invest­ig­a­tion] in ordin­ary crim­inal invest­ig­a­tion, but the stand­ards are more restrict­ive when the purpose is to gather inform­a­tion about threats to the national secur­ity.  The [2008] Guidelines will resolve such discrep­an­cies.”

Fact-Check

  • The alleged “discrep­ancy” is a myth. It is true that national secur­ity “threat assess­ments” under­taken before an offi­cial invest­ig­a­tion was opened barred the task­ing of inform­ants. But so did the 2002 Guidelines. They did not permit agents to task inform­ants before open­ing an invest­ig­a­tion. Rather, they permit­ted inter­views with previ­ously estab­lished inform­ants and only after a prelim­in­ary inquiry had been opened.  They did not permit task­ing of inform­ants until a full invest­ig­a­tion was opened.
  • The 2008 Guidelines added at the assess­ment stage—­be­fore find­ing suffi­cient evid­ence even to open a prelim­in­ary invest­ig­a­tion—the author­ity not only to inter­view exist­ing inform­ants, but also to recruit and task new inform­ants. 

Exhibit #2: FBI Offi­cials Down­play the Scope of the 2008 Changes to the Attor­ney Gener­al’s Guidelines for Domestic FBI Oper­a­tions, Claim­ing that they Gran­ted the Bureau No New Powers

Claim

Robert Mueller, FBI Director
Hear­ing Before the Senate Judi­ciary Commit­tee, Septem­ber 17, 2008

  • “[T]he [2008 Attor­ney Gener­al’s] guidelines are not designed to give the FBI any broad new author­it­ies.”

Uniden­ti­fied FBI Offi­cial
FBI Brief­ing, Septem­ber 12, 2008

  • “We’re not getting any new power. . . . There’s no new power there. . . . that we didn’t previ­ously have.”

Valerie Caproni, FBI General Coun­sel
Letter to the Editor, New York Times, March 31, 2011

  • “[T]he F.B.I. has long engaged in the prompt and limited check­ing of leads.  The 2008 Attor­ney General guidelines and the F.B.I.’s [DIOG] did specify clearly for the first time how and where leads being assessed must be docu­mented.”

Fact-Check

  • The 2008 Attor­ney General Guidelines and the DIOG did not merely “specify clearly” the rules for check­ing leads. 
  • The 2008 Guidelines intro­duced “assess­ments,” permit­ting several highly intrus­ive tactics, such as the use of inform­ants, pretext inter­views, and 24-hour phys­ical surveil­lance without any factual predic­ate. Pre-2008 Guidelines permit­ted the use of these tactics only during invest­ig­a­tions based on artic­ul­able suspi­cion and then only with super­vis­ory author­iz­a­tion.
  • While it is true that “threat assess­ments” were permit­ted under the 2003 National Secur­ity Invest­ig­a­tion Guidelines, by the FBI’s own admis­sion, those rules prohib­ited the tech­niques now permit­ted by the 2008 Guidelines.

Exhibit #3: FBI Director Robert Mueller Misin­formed Congress Regard­ing the Contents of The 2008 Attor­ney Gener­al’s Guidelines for Domestic FBI Oper­a­tions

Claim

Robert Mueller, FBI Director
Hear­ing Before the Senate Judi­ciary Commit­tee, July 28, 2010

Senator Richard Durbin: Let me ask you this. Is—is there a require­ment of suspi­cion of wrong­do­ing before there is surveil­lance of an indi­vidual or surveil­lance of a loca­tion?

FBI Director Robert Mueller III: Yes.

Senator Richard Durbin: All right. And so merely the fact that it is of a certain reli­gious sect or ethnic group is not enough.

FBI Director Robert Mueller III: That is—that in and of itself is not enough. There has to be some­thing more.”

Fact-Check

  • As the FBI later conceded in a letter to Senat­ors Leahy and Durbin, Director Mueller “miss­poke” when claim­ing that the 2008 Attor­ney General Guidelines did not permit the FBI to initi­ate invest­ig­a­tions in the absence of suspi­cion of wrong­do­ing.

Exhibit #4: FBI General Coun­sel Valerie Caproni Down­plays the Scope of the Upcom­ing 2011 Changes

Claim

Valerie Caproni, FBI General Coun­sel
As quoted in the New York Times, June 12, 2011

“[T]he [upcom­ing] modi­fic­a­tions to the rules are ‘more like fine-tuning than major changes.’”

Fact-Check

  • The accur­acy of this state­ment may depend on one’s defin­i­tion of the word “major.” 
  • The new rules, as described by the New York Times, undeni­ably include signi­fic­ant changes.
  • Accord­ing to the New York Times, the modi­fic­a­tions permit the follow­ing activ­it­ies:
    • scru­tiny of commer­cial and govern­ment data­bases before an invest­ig­a­tion is offi­cially opened;
    • search­ing through an indi­vidu­al’s trash during an unpre­dic­ated assess­ment for the purpose of recruit­ing him or her as an inform­ant; and
    • undis­closed parti­cip­a­tion in a group five times before the rules govern­ing undis­closed parti­cip­a­tion apply.
  • Note that as some of the rules govern­ing FBI invest­ig­a­tions remain secret—such as the rules about the FBI’s undis­closed parti­cip­a­tion in reli­gious or polit­ical gath­er­ing­s—it is impossible to eval­u­ate the extent or nature of the changes in many areas.

Exhibit #5: FBI Assist­ant Director for Public Affairs Asserts that the 2011 Changes Provides Increased Civil Liber­ties Protec­tions

Claim

Michael P. Kortan, Assist­ant Director for Public Affairs
Letter to the Editor, New York Times, June 24, 2011

  • “[C]ontrary to the [New York Times June 18, 2011] edit­or­i­al’s state­ments, the revi­sion will not provide ‘agents signi­fic­ant new powers’ . . . the F.B.I.’s oper­a­tions manual estab­lishes greater over­all protec­tions for privacy than the law and Justice Depart­ment policy require.”

Fact-Check

  • The DIOG includes privacy protec­tions beyond those required by 2008 Guidelines only because those protec­tions, which had been part of all previ­ous Attor­ney General Guidelines, were moved from the Guidelines to the DIOG in 2008. 
  • Regard­less of which docu­ment the rules are set out in, the New York Times account of contem­plated changes to the F.B.I.'s Domestic Invest­ig­a­tions and Oper­a­tions Guide, describe an expan­sion of exist­ing powers without concom­it­ant privacy protec­tions. The new rules will reportedly:
    • allow agents to search commer­cial and govern­ment data­bases before an invest­ig­a­tion is offi­cially opened;
    • add the author­ity to go through an indi­vidual or house­hold’s trash to the list of tactics permit­ted at the “assess­ment” level; and
    • narrow the defin­i­tion of so-called “sens­it­ive invest­ig­at­ive matters,” which, because of the nature of the target – usually a member of the media, or a public figure of some sort – are subjec­ted to extra layers of over­sight.
  • Note that some of these new powers seem to directly contra­dict the still-bind­ing 2008 Attor­ney General Guidelines. For example, search­ing through trash is not included in the 2008 Guidelines list of permit­ted assess­ment-stage activ­it­ies; and the defin­i­tion of “sens­it­ive invest­ig­at­ive matters” in the 2008 Guidelines is broader than the one proposed for the new DIOG.