[R-G] [BillTottenWeblog] FBI Seeks Sweeping New Powers

[Bill Totten]

by Aziz Huq

www.thenation.com (August 22 2008)


Lame-duck administrations with abysmal poll ratings and no legislative
agenda attract little attention. But to ignore the Bush Administration
at this point is perilous: in its waning days, the Administration is
turning the Federal Bureau of Investigation into a domestic intelligence
agency with sweeping powers to profile and spy on law-abiding Americans.

In July, the Associated Press reported that Attorney General Michael
Mukasey was overhauling rules that govern when the FBI can begin an
investigation. In a speech last week in Portland, Mukasey acknowledged
this and explained that the new guidelines would yield a "more flexible,
more proactive, and more efficient" bureau.

FBI guidelines matter because Congress has never enacted a comprehensive
statute governing the bureau, even though the FBI last month marked its
hundredth anniversary.

The FBI's birth in 1908 was an accident unanticipated by Congress: it
was born because Attorney General Charles Bonaparte, frustrated by a
Congressional appropriations rider precluding him from borrowing agents
from Treasury to conduct investigations, hired ten former US Secret
Service agents as investigators.

For the next hundred years, the bureau staved off efforts by Congress to
create a constraining legislative framework. After the Church Committee
investigations of the 1970s revealed massive FBI surveillance of civil
rights leaders and activists, Congress seriously debated such a statute.

But then-Attorney General Edward Levi pre-empted that effort by issuing
guidelines defining what facts could trigger an investigations, when
confidential informants could be sent in and other hot-button questions.
Political will on the Hill for confrontation evaporated.

While the Levi guidelines have been watered down by Reagan, Bush I and
Bush II attorneys general, they nevertheless still provide a critical
brake on the bureau: by giving rules to trigger an investigation,
deciding when incognito FBI agents can attend public meetings, and for
informants' usage - all matters the Constitution does not regulate. The
rules provide the sole barrier between the people and open-ended
surveillance.

While the new guidelines have yet to be released, Mukasey's Portland
speech raises serious concerns.

The new rules, for example, would allow the FBI to open an investigation
based on a person's race plus his or her travel history. In his Portland
speech, Mukasey made much of the fact that no investigation can begin
"simply based on somebody's race, religion, or exercise of First
Amendment rights". But this is cold comfort if the bureau focuses on
Muslim, Arab and South Asian communities, whose members frequently
travel overseas (as anecdotal evidence and common sense suggest); for
these groups, the new rules discards any restraint on surveillance.

Moreover, the new rules would allow the FBI to open investigations based
on its own threat assessment {1} and profiles constructed from public
databases and informants' tips. This invites the targeting of dissident
groups - a trend already visible {2} at the state and local level.

Simultaneously with the guidelines changes, the Administration is
stealthily unfurling a gamut of other regulatory changes to shift
federal and local law enforcement dramatically from an investigative to
an intelligence-gathering role.

In past year, the Administration has injected upward of $2 million to
develop a network of 15,000-plus informants {3} in the United States. It
has ramped up its internal data-mining efforts {4}, and taken a
forward-leaning position on its authority to conduct secret searches
{5}, or black-bag operations, in the United States.

Compounding these concerns, the bureau is aggressively recruiting local
and state law enforcement into its open-ended data collection efforts.

In June, the bureau issued guidance {6} to local law enforcement
agencies about "suspicious activity" to be recorded and shared with
federal authorities. The list includes First Amendment-protected
activities, such as expressing "extremist views" and "affiliation" with
"extremist organizations". Proposed new regulations {7} would loosen
limits on federal-state information sharing by eliminating the
requirement that agencies state a reason to know information.

Further, as a pair of superlative reports by the ACLU (here and here)
demonstrate, the federal government has recently initiated the creation
of a nationwide network of "fusion centers," where federal and state law
enforcement authorities sit together and share information.

Any one of these changes can get lost in the hype of convention season.
Standing alone, any one change might seem innocuous, even sensible.
Marshaled together, however, these stealth changes portend a dramatic
redirection of America's law enforcement agencies--the inking of a new
national surveillance state with tendrils trailing down into every
precinct and station house of the land.

Links:

1.
http://www.boston.com/news/nation/washington/articles/2008/07/03/%20ap_impact_race_profiling_eyed_for_terror_probes/

2.
http://www.baltimoresun.com/news/local/bal-te.md.spy18jul18,0,%203787307.story

3. http://blogs.abcnews.com/theblotter/2007/07/fbi-proposes-bu.html

4. http://blogs.abcnews.com/theblotter/2007/06/exclusive_fbi_d.html

5. http://blogs.abcnews.com/theblotter/2007/06/as_part_of_its_.html

6.
http://online.wsj.com/public/resources/documents/%20mccarecommendation-06132008.pdf

7. http://edocket.access.gpo.gov/2008/pdf/E8-17519.pdf

8. http://www.aclu.org/safefree/general/31993prs20070927.html

9. http://www.aclu.org/safefree/general/36185prs20080729.html

_____


Aziz Huq directs the liberty and national security project at New York
University's Brennan Center for Justice. He is co-author of Unchecked
and Unbalanced: Presidential Power in a Time of Terror (New Press, 2007)

He is a 2006 recipient of the Carnegie Scholars Fellowship and has
published scholarship in the Columbia Law Review, the Yearbook of
Islamic and Middle Eastern Law, and the New School's Constellations
Journal. He has also written for Himal Southasian, Legal Times and the
American Prospect, and appeared as a commentator on Democracy Now! and
NPR's Talk of the Nation.

Copyright (c) 2008 The Nation

http://www.thenation.com/doc/20080901/huq/


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