- The Washington Times - Wednesday, June 26, 2002

Nearly all of us know that law enforcement, and specifically the intelligence community, failed in their mission to prevent the tragedies of September 11 last year. Congress and the attorney general were right to respond quickly to that failure. The question remains if the changes we are making are the right ones. Conservatives must be prudent in that whatever tools we give the administration now may be used against us in the future.

When Attorney General John Ashcroft announced changes to the Guidelines on General Crimes, Racketeering Enterprise and Terrorism Enterprise Investigations ("Domestic Guidelines") for the Federal Bureau of Investigation on May 30, he lauded its 94-year-old history as "the tireless protector of civil rights and civil liberties for all Americans." That history may have come to an end.

The foreign intelligence guidelines, which cover investigations of international terrorist organizations such as Osama bin Laden's al Qaeda (operating here or abroad), are classified but reportedly have not changed. The Domestic Guidelines govern investigations of domestic groups operating entirely within the United States. Had the Domestic Guidelines changes been in place previously, they would have done nothing to prevent last year's airline highjackings.

The general principles of the old Reagan-era Domestic Guidelines for FBI investigations began as follows: "Preliminary inquiries and investigations governed by these guidelines are conducted for the purpose of preventing, detecting, or prosecuting violations of federal law. They shall be conducted with as little intrusion into the privacy of individuals as the needs of the situation permit."

The new guidelines struck the second sentence, replacing it with "The FBI shall fully utilize the methods authorized by these guidelines to maximize the realization of these objectives." Translation of the new attitude: Forget about concerns of privacy, and go run roughshod over civil rights and civil liberties of American citizens.

Aside from possible problems related to the specifics of the guidelines changes, the greatest problem appears to be that the attorney general is being mislead. The sooner he can get trusted advisers in place the better. Enough already with the red herrings about FBI agents not being allowed to surf the Internet and the shell game of changing Domestic Guidelines when the FBI failed under the foreign ones.

While ostensibly aimed at preventing terrorism, the Domestic Guidelines broadly define "terrorist activity" so that the term appears to cover the use of force to block an abortion mill, thus triggering authority to spy on pro-life demonstrators without evidence of crime. Under the Domestic Guidelines, a terrorist enterprise is a group of at least two persons engaged in an enterprise for the purpose of "furthering political or social goals wholly or in part through activities that involve force or violence and a violation of federal criminal law." An abortion protest that includes blocking an abortion clinic in violation of the federal Freedom of Access to Clinic Entrances Act (FACE) of 1994 appears to fall within this definition.

The new Domestic Guidelines differ dramatically from the previous ones in place for more than two decades in that any "public" meeting can be the subject of surveillance without any evidence of crime. FBI undercover agents would have the authority to spy at any public meetings of abortion protesters "for the purpose of detecting or preventing terrorist activities" even if the FBI had no evidence whatsoever that a crime would actually be discussed.

Moreover, the undercover FBI agent could retain any information that he thinks "relates" to any potential criminal activity, not just to terrorism. Information gathering about who attended and what they said, combined with the new data-mining rules, engender the kind of spying without cause that can chill legitimate exercise of First Amendment freedoms. A better focus would be on analysis and verifying the information used rather than profiling people using dubious data, as the old guidelines permitted.

Amazingly, Mr. Ashcroft cites the case of National Organization for Women vs. Scheidler (1994) to justify changing the Domestic Guidelines so that they do not require that these terrorism enterprise investigations be limited to enterprises that have a profit as opposed to a social goal. In that case, the Supreme Court determined that the federal racketeering statute could be used against pro-life demonstrators even though they were motivated by religious and political goals, as opposed to profit.

Should we really target pro-life demonstrators under the new FBI Domestic Guidelines with the extreme measures under the USA Patriot Act aimed at Osama bin Laden and company? What might a future Attorney General Hillary Clinton do under the new guidelines?

J. Bradley Jansen is deputy director of the Center for Technology Policy at the Free Congress Foundation.

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