Aug 23, 2008
Lame-duck administrations with abysmal poll ratings
and no legislative agenda attract little attention. But to ignore the
Bush Administration at this point is perilous: in its waning days, the
Administration is turning the Federal Bureau of Investigation into a
domestic intelligence agency with sweeping powers to profile and spy on
In July, the Associated Press reported
that Attorney General Michael Mukasey was overhauling rules that govern
when the FBI can begin an investigation. In a speech last week in
Portland, Mukasey acknowledged this and explained that the new
guidelines would yield a "more flexible, more proactive, and more
efficient" bureau. FBI guidelines matter because Congress has never
enacted a comprehensive statute governing the bureau, even though the
FBI last month marked its hundredth anniversary.
The FBI's birth in 1908 was an accident unanticipated by Congress:
it was born because Attorney General Charles Bonaparte, frustrated by a
Congressional appropriations rider precluding him from borrowing agents
from Treasury to conduct investigations, hired ten former US Secret
Service agents as investigators.
For the next hundred years, the bureau staved off efforts by
Congress to create a constraining legislative framework. After the
Church Committee investigations of the 1970s revealed massive FBI
surveillance of civil rights leaders and activists, Congress seriously
debated such a statute.
But then-Attorney General Edward Levi pre-empted that effort by
issuing guidelines defining what facts could trigger an investigations,
when confidential informants could be sent in and other hot-button
questions. Political will on the Hill for confrontation evaporated.
While the Levi guidelines have been watered down by Reagan, Bush I
and Bush II attorneys general, they nevertheless still provide a
critical brake on the bureau: by giving rules to trigger an
investigation, deciding when incognito FBI agents can attend public
meetings, and for informants' usage-all matters the Constitution does
not regulate. The rules provide the sole barrier between the people and
While the new guidelines have yet to be released, Mukasey's Portland speech raises serious concerns.
The new rules, for example, would allow the FBI to open an
investigation based on a person's race plus his or her travel history.
In his Portland speech, Mukasey made much of the fact that no
investigation can begin "simply based on somebody's race, religion, or
exercise of First Amendment rights." But this is cold comfort if the
bureau focuses on Muslim, Arab and South Asian communities, whose
members frequently travel overseas (as anecdotal evidence and common
sense suggest); for these groups, the new rules discards any restraint
Moreover, the new rules would allow the FBI to open investigations based on its own "threat assessment and profiles constructed from public databases and informants' tips. This invites the targeting of dissident groups-a trend already visible at the state and local level.
Simultaneously with the guidelines changes, the Administration is
stealthily unfurling a gamut of other regulatory changes to shift
federal and local law enforcement dramatically from an investigative to
an intelligence-gathering role.
In past year, the Administration has injected upward of $2 million to develop a network of 15,000-plus informants in the United States. It has ramped up its internal data-mining efforts, and taken a forward-leaning position on its authority to conduct secret searches, or black-bag operations, in the United States.
Compounding these concerns, the bureau is aggressively recruiting
local and state law enforcement into its open-ended data collection
In June, the bureau issued guidance
to local law enforcement agencies about "suspicious activity" to be
recorded and shared with federal authorities. The list includes First
Amendment-protected activities, such as expressing "extremist views"
and "affiliation" with "extremist organizations." Proposed new regulations
would loosen limits on federal-state information sharing by eliminating
the requirement that agencies state a reason to know information.
Further, as a pair of superlative reports by the ACLU (here and here)
demonstrate, the federal government has recently initiated the creation
of a nationwide network of "fusion centers," where federal and state
law enforcement authorities sit together and share information.
Any one of these changes can get lost in the hype of convention
season. Standing alone, any one change might seem innocuous, even
sensible. Marshaled together, however, these stealth changes portend a
dramatic redirection of America's law enforcement agencies-the inking
of a new national surveillance state with tendrils trailing down into
every precinct and station house of the land.
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