JURIST Guest Columnist Anthony D'Amato of Northwestern University School of Law says that the newly-promulgated guides for FBI domestic operations taking effect in December are in fact expansive, not delimiting, and seem to permit all kinds of encroachments on our civil liberties…

US Attorney General Michael Mukasey has just issued his “Guidelines for Domestic FBI Operations” to take effect December 1, 2008. The Introduction says that the FBI must “avoid unnecessary intrusions into the lives of law-abiding people.” Here’s the problem: how can the FBI know that anyone is a law-abiding person without making an investigative intrusion into his or her private affairs? Do the Guidelines provide any limitations to the powers of the FBI?

1. If the FBI comes calling on you, can you ask whether it is a criminal investigation, a national security investigation, or a foreign intelligence collection? The answer is that they will not tell you. The Guidelines give the FBI comprehensive, diffuse, and undifferentiated power within their “legal authorities.”
2. When the FBI’s undisclosed objective is investigating federal crimes, must there be a crime? The answer is No. The FBI may determine “whether a federal crime has occurred or is occurring” or whether “planning or preparation for such a crime is taking place.” Of course we want the FBI to prevent crimes, but this language is expansive rather than constraining.
3. When the FBI”s undisclosed objective is investigating threats to national security — which is additional to any criminal investigation — some specifics are listed: international terrorism, espionage and other intelligence activities, sabotage, assassination; and foreign computer intrusion. And then, added to these, we find “other matters determined by the Attorney General.” Might the term “other matters” include attending a theatrical performance of “Waiting for Lefty”?
4. When the FBI’s undisclosed objective is collecting foreign intelligence —which is additional to criminal investigations and national security—do the guidelines “provide standards and procedures for the FBI’s foreign intelligence collection activities?” The Guidelines say Yes, but we soon read that the guidelines are open ended: “foreign intelligence requirements may also be established by the President or Intelligence Community officials designated by the President, and by the Attorney General, the Deputy Attorney General, or an official designated by the Attorney General.” Memories are short. Recall that in the 1960s agents of the C.I.A. ended up spying on each other. All we need now is for your next-door neighbor to spy on you because you traveled for a week in Europe. He derives his authority as fourth designee of the third designee of the second designee of an official designated by the Attorney General.
5. Do these Guidelines, however vaguely worded, at least place outer boundaries on the authority of the FBI? The answer as provided by the Guidelines is: “These Guidelines apply to FBI activities as provided herein and do not limit other authorized activities of the FBI.” In other words, the FBI’s authority must fall either inside or outside the Guidelines.

I must add a personal note. In the course of representing clients I have had occasion to talk with a number of FBI agents. I have found them to be, without exception, men and women of the highest integrity. (I cannot say the same of police officers.) My feeling is that if the FBI isn’t broke, don’t fix it. Especially don’t fix it with guidelines that are expansive and might attract into the ranks of the FBI persons on power trips. Even on the face of the Guidelines, as I’ve suggested by the five examples above, they seem to permit all kinds of encroachments on our civil liberties.

Anthony D.Amato is Leighton Professor of Law at Northwestern University, where he teaches international law and human rights.

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