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New FBI guidelines for investigations could lead to abuse

Leslie Harris [President and Chief Executive Officer, Center for Democracy and Technology]: "The Department of Justice has properly agreed to a request from Senators Specter and Leahy that it delay release of new Attorney General Guidelines that govern FBI criminal and intelligence investigations.

The new Guidelines would reportedly weaken the standards in existing Guidelines for use of some intrusive investigative techniques. Currently, the FBI has to have "reasonable suspicion" of criminality to open a full criminal investigation and it has to have some kind of a lead to start a preliminary inquiry - sort of a mini-investigation to run down the lead and decide whether to open a full criminal investigation. According to recent reports, the new Guidelines would permit the FBI to conduct an "assessment" of possible criminal activity or a threat to national security without having any lead at all. While doing that "assessment," FBI agents would be empowered to use investigative techniques that had previously been reserved for full investigations and preliminary inquiries when there was evidence of crime: the agents could follow a person around, question friends and business colleagues about the person (and misrepresent themselves as persons other than FBI agents while conducting those interviews), and recruit secret informants to provide information about the person and his or her activities.

If these reports are true, the new AG Guidelines permit conduct the original AG Guidelines were supposed to prevent: investigation of people without an adequate predicate. They would leave room for all sorts of mischief such as spying on people like civil rights leaders based more on their political beliefs than on evidence of crime. As a result, they could divert scarce law enforcement resources from following up on leads and dedicate them to following up on Quakers, peace activists and other dissenters. This kind of guidance is no guidance at all.

Moreover, adoption now of such permissive Guidelines would hand the next President yet another problem to straighten out, in addition to ending a war, solving the energy crisis, and getting the economy back on track. DOJ properly agreed to hold off on issuing new Guidelines until after FBI Director Muller testifies at an oversight hearing on September 17. September 17 is Constitution Day - the 221st anniversary of the signing of the U.S. Constitution. Now, it's up to Congress to use the hearing to send a message to the Attorney General that any change in the Guidelines governing FBI investigations should respect the Constitution by ensuring that investigative resources Congress has provided to the FBI be focused on criminals and terrorists, not on everyone else."

Opinions expressed in JURIST Commentary are the sole responsibility of the author and do not necessarily reflect the views of JURIST's editors, staff, donors or the University of Pittsburgh.

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