On March 20, 2018, Michael German, former FBI agent and Fellow in the Brennan Center’s Liberty and National Security Program testified before the Congressional Black Caucus regarding the FBI’s August 2017 intelligence assessment describing a purported threat posed to law enforcement officers by “Black Identity Extremists” (BIE). The assessment claims the existence of a “Black Identity Extremist” movement and states that “perceptions of unjust treatment of African-Americans and the perceived unchallenged illegitimate actions of law enforcement will inspire premeditated attacks against law enforcement.”
The BIE assessment is of such poor quality that it raises serious questions about the FBI’s purpose in producing it. Moreover, its potential to incite irrational police fear of black activists has too often in the past translated into unnecessary police violence against unarmed and unthreatening black men and women. The BIE assessment may be intended to provide the additional elements necessary to justify monitoring, questioning, and investigating Black Lives Matter or other African American protest groups. As such, understanding how the FBI’s investigative authorities work may provide further insight into the purpose of the BIE assessment.
The FBI’s Governing Authorities:
• Attorney General Guidelines for Domestic FBI Operations require that investigations not be based solely on First Amendment activities.
- Extremely low standard. For the FBI, the BIE assessment may be intended to provide the necessary additional element to authorize an investigation.
- AGG allows FBI agents to conduct a type of investigation called an “assessment” which requires no factual predicate to suggest the target of the assessment is engaged in wrongdoing.
- AGG allows FBI to conduct an assessment of individuals to find derogatory information that could be used to coerce them into becoming FBI informants.
- Next stage of an investigation, a Preliminary Investigation, requires only “information or an allegation” that the person or organization poses a threat. According to the DOJ Inspector General, the FBI agents can make the necessary accusation based on their speculative belief a crime may be committed in the future.
- FBI Domestic Investigations and Operations Guide implements AGG.
- Authorizes an assessment activity called Domain Management.
- Domain Management includes Racial and Ethnic Mapping program and the collection of data on racial and ethnic behaviors and facilities.
• Department of Justice Guidance for Federal Law Enforcement Regarding Their Use of Race, Ethnicity, Gender, National Origin, Religion, Sexual Orientation, or Gender Identity states that the constitution only requires that these characteristics cannot be the sole basis for a law enforcement action.
- Withdraw and denounce BIE report and any other intelligence assessments or training Require the FBI to withdraw and denounce BIE report and any other intelligence assessments or training materials referencing BIE as a category of domestic terrorists.
- Require independent review of FBI intelligence and training materials regarding investigation, surveillance, and intelligence gathering that targets protected classes, modeled after its review of anti-Muslim training materials in 2012.
- Establish a peer review system to oversee the production of intelligence reports and training materials that include the FBI Office of General Counsel, DOJ Privacy Officer, and DOJ Civil Rights Division prior to publication (DHS already does this).
- Require all intelligence and training products to be available for congressional review, with all personally identifiable information (PII) properly redacted.
- End the FBI’s racial and ethnic mapping program.
- Pass the Ending Racial Profiling Act.
- According to 2016 data, the FBI is 83.4% white and 80% male. Congress should order an independent study to determine why diversity gains throughout the 1990s have fallen over the last 18 years. It should examine bias in hiring, promotion, and disciplinary processes.