New FBI protocols feed profiling fear

Justice Department officials say new FBI protocols only give agents the same tools to fight terrorism that they already have to combat crime. But civil libertarians argue the guidelines give the bureau unprecedented authority to investigate anyone it wants.

The revamped, so-called “Attorney General’s guidelines” promise to be a major focus of FBI Director Robert S. Mueller III’s appearance next week in front of the Senate Judiciary Committee.

The Justice Department has briefed lawmakers, civil libertarians and Arab-American groups about the changes, an unusual move that department officials say reflects the importance of the changes. The department also expects to make some adjustments to the guidelines as a result of those meetings.

On Friday, a senior Justice Department and senior FBI officials, speaking on the condition of anonymity, briefed reporters about the changes, which are expected to take effect Oct. 1.

They said the changes are part of the FBI’s efforts since the terrorist attacks of Sept. 11, 2001, to become more proactive in the areas of national security and intelligence gathering. The officials said there has been illogical and inconsistent differences between how agents are allowed to handle typical criminal cases - and how they address national security cases in their earliest stages before a formal investigation is opened.

In the early stages of a potential criminal case, agents are allowed to query sources, conduct physical surveillance of potential targets and even gather information without identifying themselves as FBI agents or explaining the purpose of their questioning.

But agents in the earliest parts of potential investigations into spies or terrorists are prohibited from using such techniques.

The new guidelines change that and give the same tools to agents investigating criminal and national security cases. “We’re not getting any new power,” an official said.

Michael German, policy counsel for the American Civil Liberties Union, disagreed, saying the changes allow the FBI to essentially conduct undercover investigations into anyone on the flimsiest of evidence.

“They can do it even before they suspect anything,” he said. “It’s just really an extraordinary claim of authority that I don’t think is really consistent with the Constitution.”

The FBI official said such preliminary assessments must be based on tips or information from analysts, but concerns persist that people could be targeted because of race or political views. Justice officials said the guidelines prohibit targeting people because of protected First Amendment activities, and insist they will not result in racial profiling.

“But it is simply not responsible to say that race may never be taken into account when conducting an investigation. The reality is that a number of criminal and terror groups have very strong ethnic associations. For example, the IRA was Irish, La Cosa Nostra is Italian; Hezbollah is largely Lebanese,” Justice Department spokesman Brian Roehrkasse said.

“Nevertheless, the department is sensitive to the fact that transitioning the FBI into an intelligence-driven organization that seeks proactively to identify potential threats must be done carefully: while most members of a terror group may be of a particular ethnic background that does not mean most people of that ethnic background are members of the terror group.”