Attorney General's Guidelines for FBI Domestic Operations
by Jim Kouri
The new consolidated guidelines to govern the Federal Bureau of Investigation’s domestic operations will address in a comprehensive way the FBI’s investigation of crimes and threats to the national security and its collection of foreign intelligence; the FBI’s provision of assistance and information to other agencies; and the FBI’s intelligence analysis and planning functions.
According to a report obtained by the National Association of Chiefs of Police, the consolidated guidelines provide uniform standards, to the extent possible, for all FBI domestic investigative activities and intelligence gathering activities. They are designed to provide a single, consistent structure that applies regardless of whether the FBI is seeking information concerning federal crimes, threats to national security, foreign intelligence matters or some combination of these. Previously, different sets of guidelines applied in different investigative areas despite their often overlapping purposes and prescribed different standards and procedures for essentially similar activities.
The new guidelines replace five existing sets of guidelines that separately addressed criminal investigations generally, national security investigations, and foreign intelligence collection, among other matters. In contrast to previous guidelines, the new guidelines are generally unclassified, providing the public with ready access in a single document to the basic body of operating rules for FBI activities within the United States.
These guidelines also reflect an extensive consultation process that has included three oversight hearings, numerous formal and informal briefings with members of Congress and their staffs, and outreach to interested civil liberties organizations and religious groups.
The guidelines support the FBI’s mission, emphasizing early detection, prevention and interagency cooperation.
The consolidated guidelines ensure that the FBI’s operating rules are consistent with the Bureau’s mission and current operational needs while at the same time protecting the privacy and civil liberties of Americans. The guidelines are the latest step in moving beyond a reactive model (where agents must wait to receive leads before acting) to a model that emphasizes the early detection, intervention, and prevention of terrorist attacks and other criminal activities.
The consolidated guidelines also reflect the FBI’s status as a full-fledged intelligence agency and member of the US Intelligence Community, providing more comprehensive and adequate treatment of the FBI’s intelligence collection and analysis functions, and its assistance to other agencies with responsibilities for national security and intelligence matters.
Following the 9/11 attacks, the Attorney General revised the principal guidelines governing the FBI’s criminal investigation, national security investigation, and foreign intelligence collection activities successively in 2002, 2003, and 2006. The current consolidated guidelines carry forward and complete this process in relation to the FBI’s operations within the United States.
The guidelines are consistent with recommendations of three major national advisory bodies and studies that the FBI become a more flexible and adept collector of intelligence: 9/11 Commission Report (issued July 2004), Weapons of Mass Destruction Commission Report (issued March 2005, and the Joint Inquiry into Intelligence Community Activities before and after the Terrorist Attacks of September 11, 2001 (issued December 2002).
The new consolidated guidelines issued by the Attorney General contain numerous privacy and civil liberty protections.
* The guidelines state that “it is axiomatic that the FBI must conduct its investigations and other activities in a lawful and reasonable manner that respects liberty and privacy and avoids unnecessary intrusions into the lives of law-abiding people.”
* All activities must comply with the Constitution and all applicable statutes, executive orders, Department of Justice regulations and policies, and Attorney General guidelines.
* The consolidated guidelines prohibit the FBI from investigating, collecting, or maintaining information on United States persons solely for the purpose of monitoring activities protected by the First Amendment or the lawful exercise of other rights secured by the Constitution or laws of the United States.
* These guidelines, which will work in tandem with the Attorney General’s Guidance Regarding the Use of Race by Federal Law Enforcement Agencies (issued in 2003), prohibit opening an investigation based solely on an individual's race, ethnicity, or religion.
* The consolidated guidelines require the use of the least intrusive investigative methods feasible, taking into account the effect on privacy and civil liberties and the potential damage to reputation.
* The guidelines direct FBI agents to operate openly and consensually with US persons to the extent practicable in collecting foreign intelligence that does not concern criminal activity or threats to the national security. The new guidelines incorporate effective oversight measures that provide the responsible components and officials at the Justice Department and FBI with relevant information on an in-depth and comprehensive basis.
Throughout the consultation process, the Department received numerous recommendations to clarify and, in some cases, change the draft guidelines. The Department has incorporated the majority of suggestions that it received, including:
First and foremost, concerns were raised that, in the process of incorporating the 1976 guidelines on Civil Disorders and Demonstrations, valuable safeguards for civil liberties had been lost. The new guidelines include significant changes when compared to the draft consolidated guidelines in terms of the techniques allowed, approval levels required, a time limit and the scope of the investigations.
The guidelines also have been clarified to ensure that agents know that the list of techniques available at the assessment stage is exclusive; that the requirement to respect First Amendment activities and the lawful exercise of other rights applies at the assessment stage as well as to predicated investigations; that the directive to operate openly and consensually with United States persons when collecting foreign intelligence is a requirement; and that the authorities granted in the Foreign Intelligence Surveillance Act (FISA) Improvements Act of 2008 are available only in the course of a full investigation.
Jim Kouri, CPP is currently fifth vice-president of the National Association of Chiefs of Police. He's former chief at a New York City housing project in Washington Heights nicknamed "Crack City" by reporters covering the drug war in the 1980s. In addition, he served as director of public safety at a New Jersey university and director of security for a number of organizations. He's also served on the National Drug Task Force and trained police and security officers throughout the country. He writes for many police and crime magazines including Chief of Police, Police Times, The Narc Officer, Campus Law Enforcement Journal, and others. He's appeared as on-air commentator for over 100 TV and radio news and talk shows including Oprah, McLaughlin Report, CNN Headline News, MTV, Fox News, etc. His book Assume The Position is available at Amazon.Com, Booksamillion.com, and can be ordered at local bookstores. Kouri holds a bachelor of science in criminal justice and master of arts in public administration and he's a board certified protection professional.