Brennan Center Statement in Advance of AG Holder Appearance Before Senate Judiciary Committee

In the wake of news reports that the FBI implemented new rules that relax restrictions on, and oversight of, its intelligence collection activities, the Senate Judiciary Committee will question Attorney General Eric Holder tomorrow at a Department of Justice oversight hearing.

Although their contents are not available to the public, reports indicate that the rule changes grant FBI agents a number of new powers. Among them:

1. Agents reportedly can now search, with no reason for suspicion, an individual's trash to find material they can use to pressure him or her into becoming a government informant;
2. They have the authority to search commercial or law enforcement databases for information about an individual without first opening an investigation or creating any records of the search, undercutting any possibility of meaningful internal oversight; and
3. Agents may infiltrate political or religious groups up to five times before the FBI's rules governing such activity (which are themselves secret) apply.

In advance of the hearing, Elizabeth Goitein, co-director of the Liberty and National Security Program at the Brennan Center for Justice, released the following statement calling on Senate Judiciary Committee members to press Attorney General Holder on the new rules:

"This is the third time since 9/11 that the internal rules governing domestic FBI investigations have been modified, and once again, the changes have been adopted with very little public attention or congressional oversight. Tomorrow's hearing is an important opportunity to take a closer look at these broad new powers.

"Congressional oversight is badly needed. In the years since 9/11, Congress and the Justice Department have granted the FBI ever-greater powers to investigate Americans with less basis for suspicion and less oversight. On multiple occasions, the Justice Department's Inspector General has found that the FBI overstepped even these relaxed limits on its authority. Given this record, the FBI should have to publicly justify the need for yet more leeway in its operations -- and there should be a heavy presumption against reducing internal oversight. The Brennan Center has repeatedly urged the Senate Judiciary Committee to look into these rules. It is high time we have a meaningful public debate on these new authorities."

Below is a list of sample questions Judiciary Committee members should ask Attorney General Holder:

• The FBI's rules are intended to interpret and implement the Attorney General's guidelines for domestic investigations. The FBI last revised its rules in December 2008, in response to a revision in the Attorney General's guidelines. What is the justification for the current revision, given that the Attorney General's guidelines have not changed?
• What changes have been made to the FBI's rules other than those already reported?
• In general, greater powers call for more oversight--not less. What is the rationale for reducing internal oversight over the FBI's domestic investigations? In cases where recordkeeping requirements have been eliminated, what mechanisms are in place to protect against abuse?
• Prior versions of the FBI's rules have been made public, albeit with substantial redactions. Why hasn't the FBI made any of the new rules public?

For more information, please see the following Brennan Center materials on the FBI rule changes:

• Brennan Center report - Domestic Intelligence: New Powers, New Risks
  • This 2011 report found the FBI's rules for domestic intelligence investigations too lax and in need of more oversight.
• The Atlantic - Emily Berman: When Did it Become Legal to Spy on Americans?
• July 27, 2011 letter urging the Senate Judiciary Committee to investigate changes to the FBI's domestic surveillance rules.
• October 5, 2011 letter urging the Senate Judiciary Committee to request that the FBI postpone implementation of changes to its domestic investigations guidelines.

To schedule an interview, please contact Erik Opsal at erik.opsal@nyu.edu or 646-292-8356.