The investigatory powers of the Federal Bureau of Investigation are regulated not by any Congressional charter, but by guidelines promulgated by the attorney general. Thanks to George W. Bush’s lameduck Attorney General Michael Mukasey, who was the last attorney general to revise the guidelines, the FBI’s standard for opening an investigation is shockingly lax.
The Mukasey guidelines created a new category of investigations called “assessments.” Due to new revelations about the FBI’s spying on black activists and an internal FBI memo about whether San Francisco police participating in an FBI task force were violating local laws, assessments are in the news right now.
What is an assessment? As we explained in our new report, Still Spying on Dissent: The Enduring Problem of FBI First Amendment Abuse:
Under current FBI rules, there are two main categories of investigation—predicated investigations and assessments. Predicated investigations, as the name would suggest, are predicated on a factual basis. That is, the FBI has some allegation or information to indicate criminal wrongdoing or a threat to national security. Assessments, however, do not require any such factual predicate. They merely must be based on an authorized law enforcement purpose. One such purpose is to find new informants. Additionally, when choosing targets for an assessment, under these guidelines, “agents are allowed to use ethnicity, religion or speech protected by the First Amendment as a factor — as long as it is not the only one.”
Reporting by Alice Speri in the The Intercept on FBI political surveillance of black activists highlighted why assessments are so concerning [The article cited Defending Right & Dissent’s Still Spying on Dissent]. The article covers newly released documents about FBI surveillance of so-called Black Identity Extremism. While many of the documents were “so heavily redacted that” they were “largely incomprehensible,” it is known that an FBI office opened–and continuously got approval to renew–an assessment into “Black Separatists Extremists.” No individuals or organizations are mentioned, in fact the documents state that if they find any individual who poses a threat, they will open up assessments into them. It would appear from the documents that the FBI was engaging in a broad based fishing expedition against an ideology.
This isn’t the only known instance in which an assessment was used for political surveillance. As discussed in our report, an 11-month investigation into a Houston-base anti-Keystone pipeline group was also an assessment.
Another article published by The Intercept this week deals with the San Francisco Police Department’s participation in FBI Joint Terrorism Task Forces (JTTF). When local police are assigned to JTTFs they follow FBI guidelines, not local ones. San Francisco imposes strong civil liberties and First Amendment protections on its police. Given the loose nature of the FBI guidelines, there were concerns that local police may be violating local law when acting under the direction of the FBI. This led San Francisco to first pass the Safe San Francisco Civil Rights Ordinance and then break away from JTTF altogether.
As documented in The Intercept, an internal FBI legal analysis found that “San Francisco Police Officers working on an FBI counterterrorism task force were routinely given low-level assignments that would invite violations of local San Francisco law and policy.” One of the sticking points? Assessments. While assessment don’t require suspicion of criminal activity, San Francisco law requires its police to have reasonable suspicion of criminal activity when conducting an investigation. A San Francisco police officer assigned to the JTTF would be in violation of San Francisco law when carrying out an assessment.
The creation of assessments in 2008 marked a major departure from how the FBI had operated for decades. It was the first time in the post-Church Committee-era that the FBI was allowed to investigate people it had no factual predicate to believe were involved in criminal activity or threatened national security.
At the time of their creation, civil liberties groups like Defending Rights & Dissent warned of the danger posed by assessments. These recent revelations confirm our fears.
Congress can and must act. Congress can pass legislation barring the FBI from conducting suspicionless investigations. While such changes would not necessarily end forever the problem of FBI First Amendment abuse, they would make it more difficult.