DoJ’s Changes to Intelligence-Gathering and Investigative Regulations

In the remaining months of the Bush administration, the Department of Justice has relaxed restrictions on when the Federal Bureau of Investigation can begin investigations, and worked to increase intelligence-sharing among local, state, and federal law enforcement agencies as well as with federal (intelligence) agencies in ways that will compromise civil liberties (through a change in federal regulation 28 C.F.R. part 23).

 

FBI Guidelines          28 C.F.R. part 23 

 

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FBI GUIDELINES

The FBI’s power to investigate people or organizations is not governed by statute, but determined by internal rules issued by the Attorney General. Attorney General Mukasey proposed several changes to the FBI guidelines governing domestic investigations on national security issues. The Brennan Center is concerned that the new rules will result in widespread domestic spying and targeting of U.S. citizens, residents, and visitors based purely on race and travel history.

 

On August 12, 2008, the Brennan Center signed with about 40 concerned legal, faith-based, and public interest organizations a letter to urge Attorney General Michael Mukasey to release an official draft of the guidelines so that Congress and the public could provide meaningful input and vet the guidelines before they were adopted. In response to broad concern, Attorney General Michael Mukasey agreed to delay signing into effect the proposed FBI guidelines until after his appearance before the Senate Judiciary Committee on September 17, 2008, in a hearing on “Oversight of the Federal Bureau of Investigation.”

 

On September 29, 2008, the Department of Justice issued the new guidelines, consolidating the previously separate rules on investigations regarding national security, criminal investigations, and the collection of foreign intelligence into one, overarching document.

• Federal Bureau of Investigation Press Release (10/03/2008)- (PDF version)
• The Attorney General’s Guidelines for Domestic FBI Operations (9/29/08)
• Memorandum from the Attorney General on New FBI Guidelines (9/29/08)
• Senator Leahy’s Closing Statements from the Senate Judiciary’s Hearing on FBI Oversight (9/17/08)- (PDF version)
• Community Letter to Senators Regarding FBI Guidelines (9/16/08)
• Letter from Members of Senate Judiciary Committee Requesting Review of Guidelines (8/20/08)
• Letter from Attorney General Mukasey Granting Request to Delay FBI Guidelines (8/20/08)
• Letter from Senators Leahy and Specter Requesting Delay of Finalizing FBI Guidelines (8/18/08)
• Attorney General Mukasey’s Remarks at the Oregon Anti-Terrorism Conference (8/13/08) – (PDF version)
• Community Letter to Attorney General Mukasey Regarding the Proposed FBI Guidelines (8/12/08)

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IN THE NEWS

• Letter to the Editor: New FBI Guidelines – Robert Mueller III, FBI Director, New York Times (10/25/08) (PDF version)
• Editorial: Another Invitation to Abuse- New York Times (10/19/08) (PDF version)
• Analysis: New FBI Investigative Guidelines- Middle East Times (10/06/08) (PDF version)
• FBI Given New Rules for Investigations, International Herald Tribune (10/04/08) (PDF version) 
• Guidelines Expand FBI’s Surveillance Powers- Carrie Johnson, The Washington Post (10/04/08) (PDF version)
• Justice Department Completes Revision of FBI Guidelines for Terrorism Investigations– The New York Times (10/04/08) (PDF version)
• Terror Plan Would Give F.B.I. More Power – Eric Lichtblau, New York Times (9/13/08) (PDF version)
• Proposed New F.B.I. Rules Draw Civil Liberties Worries – James Vicini, Reuters (9/12/08) (PDF version)
• FBI Seeks Sweeping New Powers, Aziz Huq – The Nation (8/22/08) – (PDF version)
• New Guidelines Would Give F.B.I. Broader Powers – Eric Lichtblau, New York Times (8/21/08) – (PDF version)
• U.S. May Ease Police Spy Rules – Spencer S. Hsu & Carrie Johnson, Washington Post (8/16/08) – (PDF version)
• Racial Profiling Eyed for Terror Probes – Lara Jakes Jordan, ABC News/Associated Press (7/02/08) – (PDF version)

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28 C.F.R. PART 23

The Department of Justice has proposed changes to 28 C.F.R. part 23 that will eliminate safeguards preventing the collection of false information and will allow for intelligence-gathering by intrusive and offensive means.  The sharing of this information with federal law enforcement and agencies may lead to harmful federal actions, such as triggering an investigation against individuals, based on possibly false information, or placing irrelevant names on watch lists. 

 

The DoJ collected comments on the proposed changes to 28 C.F.R. part 23 through September, 2, 2008.  The Brenan Center put together a non-technical memo, outlining the damaging effects the changes could cause.  On August 27, 2008, the Brennan Center submitted comments to DoJ, documenting its objections to the proposed changes. 

• Proposed Rules (7/31/08)

• Brennan Center’s Memo Regarding Proposed Changes to 28 C.F.R. Part 23 (8/22/08)

• Brennan Center’s Submitted Comments on 28 C.F.R. Part 23 (8/27/08)