The Bush administration is proposing guidelines that give FBI agents far more latitude to assess foreign intelligence and terrorism threats in the same way that they do in more routine criminal cases.
Under the new guidelines, the FBI would be allowed to use the following tools to assess national security threats before launching preliminary investigations: physical surveillance, developing informants, and so-called "pretext interviews," in which agents can ask questions without having to identify themselves as from the FBI.
In a briefing with reporters today, senior FBI and DOJ officials said it makes no sense that those tools could be used by agents if they were trying to assess whether drugs were being sold out of bars in certain neighborhoods -- but not if they were trying to assess if terrorist fundraising was being conducted in those neighborhood bars.
Such rules are interfering, those officials said, with the FBI's expanding role as an intelligence gathering agency. But the ACLU today criticized the proposal as overreaching by the government.
"Handing this kind of latitude to an organization already rife with internal oversight problems is a huge mistake," said Caroline Fredrickson, the ACLU's Washington legislative office director. "Agents will be given unparalleled leeway to investigate Americans without proper suspicion, and that will inevitably result in constitutional violations."
Critics also say loosening restrictions could lead to racial profiling. "The new guidelines offer no specifics on how the FBI will ensure that race and religion are not used improperly as proxies for suspicion, nor do they sufficiently limit the extent to which government agents can infiltrate groups exercising their First Amendment rights," charged ACLU executive director Anthony D. Romero.
But Justice Department officials pushed back, rejecting any suggestion that the proposed guidelines would encourage racial profiling. They said race alone can never be the sole factor in launching inquiries.
"The attorney general's guidance on the use of race, as well as our traditional respect for the exercise of First Amendment and other legal rights, will apply in full force to assessments and predicated investigations," said a statement from DOJ spokesman Brian Roehrkasse.
"The Department of Justice has long been concerned about the use of race or ethnicity in investigations. But it is simply not responsible to say that race may never be taken into account when conducting an investigation," Roehrkasse said, adding that certain "criminal and terror groups," such as the IRA, La Cosa Nostra and Hizbollah have "very strong ethnic associations.
"If the FBI is charged with knowing whether there are elements of such groups present and operating within the United States," he said, "it cannot ignore those ethnic connections, any more than it would ignore the identification of a bank robber as a short white male when trying to solve the bank robbery."
Roehrkasse acknowledged, however, that it is a delicate balancing act. "...[T]he Department is sensitive to the fact that transitioning the FBI into an intelligence-driven organization, that seeks proactively to identify potential threats, must be done carefully: while most members of a terror group may be of a particular ethnic background, that does not mean most people of that ethnic background are members of the terror group."
FBI officials would like the guidelines in place before the end of the year. FBI Director Robert Mueller is expected to testify before Congress on the proposals next week.