The new consolidated guidelines to govern the FBI’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.
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 U.S. 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):
· “A ‘smart’ government would integrate all sources of information to see the enemy as a whole. Integrated all-source analysis should also inform and shape strategies to collect more intelligence . . . . The importance of integrated, all-source analysis cannot be overstated. Without it, it is not possible to ‘connect the dots.’”
· “Instead of facing a few very dangerous adversaries, the United States confronts a number of less-visible challenges that surpass the boundaries of traditional nation-states and call for quick, imaginative, and agile responses.”
· “Countering transnational Islamic terrorism will test whether the U.S. government can fashion more flexible models of management needed to deal with the twenty-first-century world.”
· “FBI employees need to report and analyze what they have learned in ways the Bureau has never done before.”
· Weapons of Mass Destruction Commission Report (issued March 2005):
· “[C]ontinuing coordination . . . is necessary to optimize the FBI’s performance in both national security and criminal investigations . . . . [The] new reality requires first that the FBI and other agencies do a better job of gathering intelligence inside the United States, and second that we eliminate the remnants of the old ‘wall’ between foreign intelligence and domestic law enforcement. Both tasks must be accomplished without sacrificing our domestic liberties and the rule of law, and both depend on building a very different FBI from the one we had on September 10, 2001.”
· “The collection of information is the foundation of everything that the Intelligence Community does. While successful collection cannot ensure a good analytical product, the failure to collect information . . . turns analysis into guesswork. And as our review demonstrates, the Intelligence Community’s human and technical intelligence collection agencies have collected far too little information on many of the issues we care about most.”
· “ [I]ntelligence collection . . . is usually positioned to be reactive rather than proactive—when it needs to be both.”
· “Ensuring continuing coordination between the FBI’s two halves is critical for at least two reasons: such coordination is necessary to optimize the FBI’s performance in both national security and criminal investigations, and—equally important—it will help ensure continued attention to civil liberties and legal limits on the power of government to intrude into the lives of citizens.”
· “The Intelligence Community must be as agile and flexible as their target’s travel plans.”
· Joint Inquiry into Intelligence Community Activities before and after the Terrorist Attacks of September 11, 2001 (issued December 2002):
· “[Counterterrorism] strategy should . . . encompass specific efforts to . . . enhance the depth and quality of domestic intelligence collection and analysis . . . . [T]he FBI should strengthen and improve its domestic [intelligence] capability as fully and expeditiously as possible by immediately instituting measures to . . . significantly improve strategic analytical capabilities . . . .”
· “[L]ong-term counterterrorism investment should be accompanied by sufficient flexibility, subject to congressional oversight, to enable the Intelligence Community to rapidly respond to altered or unanticipated needs[.]”
The guidelines protect privacy and civil liberties.
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 U.S. persons to the extent practicable in collecting foreign intelligence that does not concern criminal activity or threats to the national security.
The guidelines incorporate effective oversight measures to ensure compliance.
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.
· The Oversight Section in the Department’s National Security Division, and the FBI’s Inspection Division, Office of General Counsel, and new Office of Integrity and Compliance monitor compliance with the guidelines. The consolidated guidelines recognize and incorporate the roles of these components.
· The guidelines require notification and reports to the National Security Division concerning the initiation of national security and foreign intelligence activities in various contexts and authorize the Assistant Attorney General for National Security to requisition additional reports and information concerning such activities.
· Many other Department components and officials are involved in ensuring that activities under the guidelines are carried out in a lawful, appropriate, and ethical manner, including the Justice Department’s Criminal Division, United States Attorneys’ Offices, and Office of Privacy and Civil Liberties, and the FBI’s Privacy and Civil Liberties Unit.
· The consolidated guidelines require the reporting of sensitive matters to relevant officials within the Department. For example, the FBI must notify the United States Attorney or other appropriate Department official concerning matters involving a domestic public official, political candidate, religious or political organization, prominent individuals within those groups, or the news media. The National Security Division must be notified when the FBI initiates full investigations of U.S. persons relating to national security threats, among other notification and reporting requirements.
· Before the consolidated guidelines become effective on December 1, 2008, the FBI and other affected Justice Department components will carry out comprehensive training to ensure that their personnel understand these new rules and will be ready to apply them in their operations. The FBI will also develop appropriate internal policies to implement and carry out the new guidelines.
Consultation with external organizations improved the guidelines.
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.