While you were distracted by gripping front-page headlines on the epic global financial crisis sweeping world markets, you may have missed this little story:
On Friday October 3rd, the U.S. Justice Department, under the guidance of Attorney General Michael Mukasey, issued a new set of guidelines for the FBI, officially and explicitly granting the agency the power to conduct surveillance on American citizens without any evidence or proof of wrongdoing, and without the need for warrants or court supervision, for up to 30 days. Under these new guidelines, all that is required for the FBI to begin spying on an American citizen is suspicion of a threat. From the Justice Department document (emphases mine):
Assessments, authorized by Subpart A of this Part, require an authorized purpose but not any particular factual predication. For example, to carry out its central mission of preventing the commission of terrorist acts against the United States and its people, the FBI must proactively draw on available sources of information to identify terrorist threats and activities. It cannot be content to wait for leads to come in through the actions of others, but rather must be vigilant in detecting terrorist activities to the full extent permitted by law, with an eye towards early intervention and prevention of acts of terrorism before they occur. Likewise, in the exercise of its protective functions, the FBI is not constrained to wait until information is received indicating that a particular event, activity, or facility has drawn the attention of those who would threaten the national security. Rather, the FBI must take the initiative to secure and protect activities and entities whose character may make them attractive targets for terrorism or espionage.
According to legal experts at the ACLU, the new guidelines also give FBI agents implicit permission to use race, ethnicity or religion as a basis for targeting American citizens and American organizations for investigation.
So what constitutes a "threat" worthy of investigation under these guidelines?
According to the document itself (emphasis mine):
These Guidelines (Part VII.S) specifically define threats to the national security to mean: international terrorism; espionage and other intelligence activities, sabotage, and assassination, conducted by, for, or on behalf of foreign powers, organizations, or persons; foreign computer intrusion; and other matters determined by the Attorney General, consistent with Executive Order 12333 or any successor order.
So, the new Justice Department guidelines essentially define a "threat" worthy of FBI investigation as anything the Attorney General or the President thinks is a threat. No supervision by a court is required.
In fact, the guidelines go on to explicitly state that the FBI can collect information on United States citizens if that information relates to "foreign powers, organizations, or persons that may be of interest to the conduct of the United States' foreign affairs" even if no crime or act of violence is suspected:
The authority to collect foreign intelligence extends the sphere of the FBI's information gathering activities beyond federal crimes and threats to the national security, and permits the FBI to seek information regarding a broader range of matters relating to foreign powers, organizations, or persons that may be of interest to the conduct of the United States' foreign affairs.
And what surveillance techniques do these guidelines grant FBI agents permission to use on American citizens, again, with no proof of illegal activity or intent to commit illegal activity, and no warrant from a judge required for up to 30 days? According to the new guidelines authorized by Mukasey, FBI agents may do all of the following to obtain information on American citizens, without obtaining a warrant, and without revealing their identity as FBI agents to the ordinary people (such as family, coworkers, and associates of citizens under surveillance) they might question in the course of an investigation:
a. Obtain publicly available information.
b. Access and examine FBI and other Department of Justice records, and obtain information from any FBI or other Department of Justice personnel.
c. Access and examine records maintained by, and request information fkom, other federal, state, local, or tribal, or foreign governmental entities or agencies.
d. Use online services and resources (whether nonprofit or commercial).
e. Use and recruit human sources in conformity with the Attorney General's Guidelines Regarding the Use of FBI Confidential Human Sources.
f. Interview or request information from members of the public and private entities.
g. Accept information voluntarily provided by governmental or private entities.
h. Engage in observation or surveillance not requiring a court order.
i. Grand jury subpoenas for telephone or electronic mail subscriber information.
After reading all that, I had to laugh a little when I got to this part of the document:
These Guidelines do not authorize investigating or collecting or maintaining information on United States persons solely for the purpose of monitoring activities protected by the First Amendment or the lawful exercise of other rights secured by the Constitution or laws of the United States.
Nice nod to the First Amendment there, Justice Department. But why do I get the feeling that paragraph was nothing lip service? Maybe I don't feel your sincerity keenly because this entire document violates the Fourth Amendment of the Constitution.
Senators Dick Durbin, Ted Kennedy and Russ Feingold were so concerned about the Constitutional implications of these FBI guidelines before their official release that they jointly wrote two letters to the Justice Department, in August and September, asking Attorney General Mukasey not to authorize the guidelines. According to Durbin's official website, the Senators never received a written reply.
In response to the Justice Department's release of the new guidelines on Friday, Senator Durbin said:
The American people will react skeptically to the Administration’s efforts to rewrite the rules for FBI surveillance one month before the election in the eighth year of the Bush Administration.
The Justice Department claims that they consulted with Congress, but they made only cosmetic and superficial changes and ignored all of the significant changes we suggested, including prohibiting racial profiling and requiring some factual basis for FBI surveillance.
These guidelines would permit FBI surveillance of innocent Americans with no suspicion and on the basis of their race, religion or national origin. These guidelines will hinder the FBI’s efforts to protect our national security and threaten the constitutional rights of American citizens.
Jaelithe is an ordinary suburban, married stay-at-home mother with no criminal record, no dubious associations and no ties to radical organizations, other than MOMocrats. She writes about her perfectly normal middle-class baseball-and-apple-pie patriotic American life at The State of Discontent. Also, she loves FBI agents! She really liked The X-Files.
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