A Review of the FBI's Investigations of Certain Domestic Advocacy Groups
Chapter Two: Authorities Governing FBI Investigative Activities
In this chapter we provide background information on the authorities governing FBI investigative activities. We first describe a prior review we conducted regarding the FBI's investigation of protest groups. We then discuss the various statutes, the Attorney Generals' Guidelines, and FBI policies governing investigative activities. We examine the predication requirements for various FBI investigative activities, as well as explicit limitations or conditions on the FBI's use of investigative techniques that may burden or otherwise implicate First Amendment rights, including limitations on the collection or maintenance of records describing how individuals exercise their First Amendment rights. We also describe how recent DOJ and FBI policy changes may affect FBI investigative activities in the future with respect to domestic advocacy groups. As explained in subsequent chapters, recent changes in FBI policies would have changed our analysis of the FBI's conduct in particular cases had they been in effect at the time.
I. Prior Review
The OIG previously conducted a review addressing the FBI's investigative activities directed at potential protesters planning to attend the 2004 Democratic and Republican national political conventions.7 The OIG review found the FBI's investigative activities were focused on addressing 17 distinct threats to the 2 conventions falling within the FBI's Domestic Terrorism program. That review did not substantiate the allegations that the FBI improperly targeted protesters for interviews before the conventions in an effort to chill their First Amendment rights. Rather, we concluded that the FBI's investigative activities were conducted in accordance with the existing Attorney General's Guidelines.
II. FBI Authorities
The FBI does not operate under a general statutory charter that identifies permitted investigative activities or places limitations on the use of particular investigative techniques. However there are numerous authorities that govern the FBI's investigative activities, including the Attorney Generals' Guidelines and internal FBI policies.
Beginning in 1976, the Attorney General has issued and revised guidelines that address specific types of investigations and investigative techniques.8 The primary Guidelines regulating FBI domestic investigations addressed predication standards for opening general crimes, racketeering, and terrorism enterprise investigations. The Attorney General's Guidelines issued in 1989 were in effect until May 2002, when new Guidelines were issued.9 The 1989 and 2002 Guidelines provided standards for opening preliminary inquiries and full investigations, in addition to providing guidance on investigative techniques and dissemination of information to other agencies.10 In addition to these Guidelines, over the years Attorneys General have issued separate guidelines addressing the use of various investigative techniques, including confidential informants, undercover operations, and consensual monitoring.
In addition, the FBI has issued policies describing in detail the procedures and guidelines that control the conduct of investigations. During our entire review time period, from January 2001 to December 2006, the vast majority of applicable FBI policies were contained in the Manual of Investigative Operations & Guidelines (MIOG), and the Manual of Administrative Operations and Procedures (MAOP). In addition to the MIOG and MAOP, the FBI issued policy guidance through internal memoranda relevant to the issues in this review. These memoranda were issued by the FBI's Office of General Counsel (OGC), Counterterrorism Division, or Criminal Investigative Division.
Effective December 1, 2008, the Attorney General's Guidelines for Domestic FBI Operations (2008 Guidelines) replaced the 2002 Attorney General's Guidelines and various other guidelines regulating FBI investigations, including the Attorney General's Guidelines for FBI National Security Investigations and Foreign Intelligence Collection. A major objective of the 2008 Guidelines was to provide "simpler, clearer, and more uniform standards and procedures.11 To that end, on December 16, 2008, the FBI issued the Domestic Investigations and Operations Guide (DIOG) "to standardize policy so that criminal, national security, and foreign intelligence investigative activities are consistently and unifoi inly accomplished whenever possible (e.g., same approval, notification, and reporting requirements)."
III. General Principles and Policies Addressing Investigative Activities and the First Amendment
The 1989 and 2002 Attorney Generals' Guidelines contained general principles addressing FBI investigative activities and the First Amendment. The Guidelines stated that investigations initiated to anticipate or prevent a crime may "not be based solely on activities protected by the First Amendment or the lawful exercise of any other rights secured by the Constitution or laws of the United States." This principle was reaffirmed in the 2008 Attorney General's Guidelines. The Guidelines stated that statements that advocate criminal activity, particularly crimes of violence, may warrant investigation "unless it is apparent, from the circumstances or the context in which the statements are made, that there is no prospect of harm." The Guidelines contained other references to specific investigative activities or techniques and the First Amendment, some of which we describe below when discussing the investigative activity or technique.
FBI policy in the MIOG Introduction, § 1-4, addressed the FBI's investigative authority and the First Amendment, referring to the "importance of these rights in American society" and "careful scrutiny" of law enforcement activities that impact these rights by the legislative and judicial branches. The FBI policy required "strict compliance" with the Attorney General's Guidelines and FBI policies in initiating investigations of "individuals or members of assembled groups who advocate political or social goals through violent means, as well as investigations into the causes of civil or social disorder."12 In addition, the MIOG stated that "the scope of each investigation must be carefully tailored to fit the circumstances giving rise to the investigation; although expansion in the scope of an investigation may be undertaken if justified by a change in these circumstances."13 The MIOG also required that the duration of these investigations "must not be permitted to extend beyond the point at which its underlying justification no longer exists."14
The FBI's Domestic Investigations and Operations Guide (DIOG) currently addresses FBI investigative authority and the First Amendment in a separate section that discusses related privacy and civil liberty issues. See DIOG § 4. In addition, the DIOG restates First Amendment, civil liberty, and privacy considerations in the sections that address various types of FBI investigative activities. See e.g., DIOG § 6.3.
IV. Authorities Establishing Types of Investigations
FBI policies in effect during the period of our review established several different levels or types of investigations, each with its own predication requirement and its own set of authorized investigative techniques. In this section, we summarize the types of FBI investigations, describe the predication required to open each type of investigation, and summarize the investigative techniques approved or prohibited for use in each type of investigation during the period covered by our review.
A. Prompt and Extremely Limited Checking Out of Initial Leads
Both the 1989 and 2002 Attorney Generals' Guidelines authorized the FBI to conduct the "checking out of initial leads" as the lowest level of investigative activity. The 1989 Guidelines made a passing reference to this authority, and the 2002 Guidelines described the "prompt and extremely limited checking out of initial leads" as the lowest level of investigative activity "which should be undertaken whenever information is received of such a nature that some follow-up as to the possibility of criminal activity is warranted." The Guidelines stated that the checking of leads "should be conducted with an eye toward promptly determining whether further investigation (either a preliminary inquiry or a full investigation) should be conducted." While the 2002 Guidelines described the checking of leads as "extremely limited," it did not identify the investigative techniques the FBI could not use when checking leads.
The lowest level of investigative activity under the 2008 Guidelines is "assessments," which may be conducted "to detect, obtain information about, or prevent or protect against crimes or threats to the national security or to collect foreign intelligence." The 2008 Guidelines state that while assessments require an authorized purpose, no particular factual predication is necessary. The 2008 Guidelines state that the FBI cannot be content to wait for leads to come in through the actions of others, but must be vigilant in detecting terrorist activities and may use the "proactive investigative authority conveyed in assessments" to discharge its responsibilities. However, under the 2008 Guidelines, in contrast to the former "checking of leads" activity, the investigative techniques that may be used during assessments are limited to a prescribed list of methods such as obtaining publicly available information and engaging in observation or surveillance not requiring a court order.
B. Preliminary Inquiries
The 1989 and 2002 Attorney Generals' Guidelines provided identical standards for opening a preliminary inquiry. The Guidelines stated that the FBI may initiate a preliminary inquiry where the factual predicate for a full investigation has not yet been met but where "responsible handling requires some further scrutiny beyond the prompt and extremely limited checking out of initial leads." In such circumstances, the FBI could initiate an "inquiry" in response to an allegation or information that indicates "the possibility of criminal activity." The Guidelines stated that a preliminary inquiry is not a required step when the facts or circumstances reasonably indicate criminal activity; in those circumstances a full investigation can be opened immediately. The Guidelines required the FBI supervisor authorizing a preliminary inquiry to ensure the allegation or other information which warranted the inquiry was recorded in writing.
The 2008 Guidelines allow preliminary investigations to be initiated on the basis of "information or an allegation indicating the existence" of circumstances including activity constituting a federal crime or a threat to the national security or the targeting for attack or victimization of an individual, group, or other entity in violation of federal law. The DIOG states that the "purpose of and predication for a preliminary investigation must be documented in the initiating EC [Electronic Communication]." DIOG § 6.7.A.
The 1989, 2002, and 2008 Attorney Generals' Guidelines generally permitted the FBI to use any lawful investigative technique during a preliminary inquiry, except certain specified techniques that were prohibited. The 1989 Guidelines prohibited the use of mail covers, mail openings, nonconsensual electronic surveillance, or any other investigative techniques covered by Chapter 119 of Title 18 of the United States Code, the Electronic Communication Privacy Act (ECPA). The 2002 Guidelines also prohibited all of these investigative techniques except the use of mail covers. The 2008 Guidelines prohibit mail openings, electronic surveillance, and physical searches during preliminary investigations.
Both the 1989 and 2002 Attorney Generals' Guidelines described the supervisory approvals required for various investigative techniques during a preliminary inquiry. The DIOG describes the supervisory approvals currently required for investigative techniques used during preliminary investigations. See DIOG § 11.
C. Full Investigations
The 1989 and 2002 Guidelines provided predication standards for opening two types of full investigations: general crimes investigations and criminal intelligence investigations (including terrorism enterprise investigations).
1. General Crimes Investigations
The 1989 and 2002 Attorney Generals' Guidelines contained identical standards for opening a full investigation on a general crimes matter. The Guidelines stated that the FBI may initiate a general crimes investigation "when facts or circumstances reasonably indicate that a federal crime has been, is being, or will be committed." The Guidelines stated that the "reasonable indication" standard is "substantially lower than probable cause." The Guidelines stated that an FBI Special Agent could take into account any facts or circumstances "that a prudent investigator would consider," and that the standard requires "specific facts or circumstances indicating a past, current, or future violation." The Guidelines stated that "there must be an objective, factual basis for initiating the investigation; a mere hunch is insufficient."
Under the 2008 Attorney General's Guidelines, "predicated investigations may be carried out to detect, obtain information about, or protect against federal crimes or threats to the national security or to collect foreign intelligence." The core predication standard for investigations under the 2008 Guidelines is based on an articulable factual basis of a "reasonable indication" that a federal criminal violation or threat to the national security "has or may have occurred, is or may be occurring, or will or may occur . . . ."
Under the 1989 and 2002 Guidelines, the FBI supervisor authorizing a full investigation was required to "assure that the facts or circumstances meeting the standard of reasonable indication have been recorded in writing." Likewise, the DIOG requires that the "purpose of and predication for a full investigation must be documented in the initiating EC." See DIOG § 7.7.A. Each of the Attorney Generals' Guidelines stated that the FBI may use any lawful investigative technique in an investigation and also provided further guidance about the use of certain intrusive techniques, as described below in Section D.
2. Terrorism Enterprise Investigations
The 1989 and 2002 Guidelines authorized criminal intelligence investigations for two types of criminal enterprises: racketeering or terrorism enterprises. The racketeering enterprise standards focused on investigations of organized crime and are generally not relevant to this review.
The 1989 Guidelines referred to terrorism enterprise investigations as "domestic security/terrorism investigations" and stated that they were "focused on investigations of enterprises other than those involved in international terrorism, whose goals are to achieve political or social change through activities that involve force or violence." The 2002 Guidelines expanded the grounds for opening a terrorism enterprise investigation and provided that such a case could be initiated when facts or circumstances reasonably indicate that two or more persons are engaged in an enterprise for the purpose of: (1) furthering political or social goals wholly or in part through activities that involve force or violence and a violation of federal criminal law; (2) engaging in "international terrorism" or "domestic terrorism" as defined in federal law; or (3) committing any federal criminal offense listed in the federal law that defines the "federal crime of terrorism" or a pattern of racketeering activity involving any of the listed offenses. The first of these alternative predications was applicable to the FBI's investigation of PETA that we analyze in Chapter Four. The 2008 Guidelines provide for "enterprise investigations" and include predication language that is substantially similar to the 2002 Guidelines.
Both the 1989 and 2002 Guidelines described terrorism enterprise investigations as focused on the structure and scope of the entire enterprise as well as the relationship of its members, rather than on just individual participants and specific criminal acts. The 2008 Guidelines contain similar language describing the scope of enterprise investigations. The 1989 and 2002 Guidelines also stated that "mere speculation that force or violence might occur during the course of an otherwise peaceable demonstration is not sufficient grounds for initiation" of a terrorism enterprise investigation. The Guidelines cautioned that investigations of organizations alleged to be involved in politically motivated acts may present special problems necessitating "special care" be exercised "in sorting out protected activities from those which may lead to violence or serious disruption of society."15
The 2002 Guidelines made an important change to terrorism enterprise investigations that are relevant to the FBI's investigation of PETA: the Guidelines authorized the FBI to use preliminary inquiries to determine whether a full terrorism enterprise investigation of a group was warranted. Under the 1989 Guidelines, a preliminary inquiry could only be used in connection with individual crimes, and not to determine whether to open a broader investigation of groups involved in terrorism. Thus, under the 1989 Guidelines the "reasonable indication" standard applied to initiating any terrorism enterprise investigation, but under the 2002 Guidelines a preliminary inquiry could be opened based on information indicating the "possibility" of a group's involvement in terrorism. The 2008 Guidelines authorize full but not preliminary enterprise investigations of groups or organizations.
D. General Authorities for Using Investigative Techniques During Preliminary Inquiries and Full Investigations
The 1989 and 2002 Guidelines contained general statements authorizing the FBI to use any lawful investigative technique when conducting preliminary inquiries or full investigations under the Guidelines. The 2002 Guidelines also stated that the choice of investigative techniques in either a preliminary inquiry or full investigation is a matter of judgment. These Guidelines also stated that the FBI should consider a number of factors including the intrusiveness of the technique, the effect on the privacy of individuals and potential damage to reputation, and the seriousness of the possible crime and strength of information indicating its existence or future commission. The Guidelines stated that where the conduct of a preliminary inquiry or full investigation "presents a choice between the use of more or less intrusive methods, the FBI should consider whether the information could be obtained in a timely and effective way by the less intrusive means."16 However, the Guidelines also stated the FBI "should not hesitate to use any lawful techniques consistent" with the Guidelines, "even if intrusive, where the intrusiveness is warranted in light of the seriousness of the possible crime or strength of the information indicating its existence or future commission," and that this was "to be particularly observed" in inquires or full investigations "relating to possible terrorist activities."17 Finally, both the 1989 and 2002 Guidelines noted the need to comply with all requirements for use of an investigative technique set by statute, Department regulations and policies, and Attorney General's Guidelines.18
The 2008 Guidelines contain language similar to the earlier Guidelines regarding choice of investigative techniques. In addition, the 2008 Guidelines state that in circumstances where different investigative methods "are each operationally sound and effective," the "least intrusive method feasible is to be used in such situations."
E. Counterterrorism Authorizations under Part VI of the 2002 Attorney General's Guidelines
Part VI of the 2002 Guidelines authorized investigative activities designed to further the FBI's "central mission of preventing the commission of terrorist acts against the United States and its people." (The 1989 Guidelines did not contain a comparable provision to Part VI.) Part VI of the 2002 Guidelines provided authority for specified activities that could be conducted even in the absence of a checking of initial leads, preliminary inquiry, or full investigation. Part VI stated that "the FBI must 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 . . . ." However, the Guidelines stated that the activities authorized under Part VI "do not include maintaining files on individuals solely for the purpose of monitoring activities protected by the First Amendment or the lawful exercise of any other rights secured by the Constitution or laws of the United States."
Part VI of the 2002 Guidelines identified several investigative activities, some of which were focused on counterterrorism and others that were authorized for both counterterrorism and general crimes matters. Below we describe the Part VI provisions most relevant to this review. Although the 2008 Guidelines do not contain a separate section addressing the Part VI activities, the Part VI activities described below would be authorized by the 2008 Guidelines as part of an assessment.
1. Visiting Public Places and Events
Part VI.A.2 of the 2002 Guidelines provided that "for the purpose of detecting or preventing terrorist activities, the FBI is authorized to visit any place and attend any event that is open to the public, on the same terms and conditions as members of the public generally."19 However, this provision prohibited the FBI from retaining information obtained from such visits unless it related to "potential criminal or terrorist activity." Neither the 2008 Guidelines nor the DIOG contain a provision restricting retention of information obtained from such visits.
The FBI issued "Field Guidance," dated October 7, 2002, ("2002 guidance"), which stated that Part VI.A.2 was designed to "enhance the FBI's ability to visit public places and attend public events" while still imposing "sufficient limitations to properly balance public safety and civil liberties . . . ." This Field Guidance stated that "use of this investigative tool proactively, meaning prior to the development of a lead, is explicitly limited to the detection and prevention of terrorist activities." For collection of evidence of other crimes, an agent must have had authorization based on the "extremely limited checking out of leads, a preliminary inquiry, or a full investigation."
The 2002 Field Guidance emphasized that while the terms and conditions for gaining access to the event as a member of the public "may vary depending on the public place or event, it is logical to conclude that gaining access to public places or events through pretext or undercover activity is not permissible under" Part VI.A.2. A March 19, 2004, EC from the FBI's General Counsel expanded on this point, stating: "Undercover activity, surreptitious entry into a private gathering at these events, and certain other investigative techniques (e.g., consensual recording of conversations) are not permitted under this authority." The EC also stated that a source operating at the FBI's direction would "stand in the same shoes as the agent and, therefore, can only be directed to attend an event that an agent would also be permitted to attend under the Guidelines."
The 2002 Field Guidance also stated that, time permitting, agents should obtain a supervisor's approval before visiting a public place or attending a public event under Part VI.A.2. According to the Guidance, such a policy would "help ensure that the attendance is for a law enforcement purpose authorized by this section, and reflects the appropriate balance between law enforcement and First Amendment concerns." The Field Guidance stated that supervisors "may want to consider" factors such as "the potential to detect or prevent terrorist activity and the potential chilling effect on First Amendment protected activity" when assessing the use of Part VI.A.2 authority.
The 2002 Field Guidance provided instructions for the retention of information from a public place or event visit. It stated that, "if information obtained during the visit rises to the level of a lead, such information should be properly documented, including a statement describing how the information is related to potential criminal and/or terrorist activity, and then filed accordingly." On the other hand, "[i]f the visit does not develop information relating to potential criminal or terrorist activity, an agent should note in the file the date, time and place visited and that the visit had negative results. No other information may be recorded."20
2. Research and Online Searches
Part VI.B.1 of the 2002 Guidelines authorized the FBI to conduct general topical research, including conducting online searches and accessing online sites and forums on the same terms and conditions as members of the public. General topical research was defined to mean "research concerning subject areas that are relevant for the purpose of facilitating or supporting the discharge of investigative responsibilities." However, the FBI was prohibited from using this authority to conduct online searches for information by individuals' names or other individual identifiers, except where such a search was incidental to the topical research, (e.g., searches for writings on a topic by a particular author). The 2002 guidance stated that this provision, while new to the Guidelines, clarified "pre-existing policy."
Part VI.B.2 stated that the FBI may conduct online search activity and access online sites and forums on the same terms and conditions as members of the public generally, "for the purpose of detecting and preventing terrorism or other criminal activities." The 2002 Field Guidance stated that this provision expanded the FBI's ability to gather investigative information from the Internet by allowing the FBI to conduct online searches to gather information related to terrorist or other criminal activities even prior to checking a lead. "In the past, the FBI could utilize the Internet to gather potentially evidentiary material only . . . if agents were working on a preliminary investigation, full investigation, or, at the very least, checking out a lead."
The 2008 Guidelines have loosened the restrictions on Internet research. They authorize the use of "online services and resources (whether nonprofit or commercial)" for assessments and do not state that use of online services must be on the same terms and conditions as members of the public or provide limitations on searching by individuals' names. The FBI's DIOG states that "Ws part of an assessment or predicated investigation, an FBI employee may use any FBI-approved online service or resource that is available by subscription or purchase, including services available only to law enforcement entities." DIOG § 5.9.E.
F. Authorities Governing Special Events Investigations
In addition to its authorities relating to preliminary inquiries and full investigations, the FBI has investigative authority relating to "special events" that may be targets for terrorists. Acting pursuant to Presidential Directives and a federal statute designating the FBI as the lead agency for countering threats or acts of terrorism in the United States, the FBI established a special events subprogram.21 In its MIOG, the FBI defined a special event as "a significant domestic or international event, occurrence, circumstance, contest, activity, or meeting which, by virtue of its profile and/or status, represents an attractive target for terrorist attack."22 According to the MIOG, the FBI provides enhanced involvement in "security planning issues at major domestic special events, and crisis management of any critical incident response to terrorism at a special event."23 As detailed in subsequent chapters of this report, our review found several incidents in which the groups or individuals that were the subjects of our review were referenced in FBI files relating to special events.
1. Special Events Classifications and Investigations
The FBI created a Special Events Readiness Level (SERL) rating system to determine the amount of administrative and operational support it should dedicate to special events. Each event is classified on a four-part scale based upon several factors, including whether high-level U.S. and foreign government officials will participate, whether previous terrorist incidents are associated with the event or similar events, the degree of media attention, and the current level of domestic and global terrorist activity. The system ratings range from SERL I, the highest designation for special events requiring the greatest resources to support it, to SERL IV, a designation for events that generally are supported by state and local resources.24 The approvals for the various SERLs also have a corresponding range, from certification by the Attorney General or his designee (SERL I) to designation by the Special Agent in Charge (SERL IV).
In addition to its SERL rating system, the FBI has created a case management classification code for counterterrorism activities at special events - the 300A classification. FBI policy provides that this classification is administrative and that no active criminal investigation should be conducted under it.25 In the event a criminal act occurs at a special event, the MIOG states that a separate investigative file should be opened under the substantive violation.26
The MIOG, Part 1, § 300-1, contains several references to threat assessments of a special event's potential for a terrorist incident. Such threat assessments should provide the information necessary to establish a SERL rating, which in turn determines the level of federal resources to be deployed at the special event.
In a May 14, 2004, EC from the FBI's Counterterrorism Division (CTD) to all FBI divisions, the FBI provided some guidance on the type of investigative conduct it is permitted to engage in during its management of special events in the absence of a predicate to open a preliminary inquiry or full investigation. The EC reminded agents that Part VI of the 2002 Guidelines included authority to conduct certain investigative activities, and that these activities "may be quite useful in the context" of special events preparations. The EC stated this authorized conduct included "attendance at public events and visiting public places on the same terms [as] the public for the purpose of detecting and preventing terrorism or conducting an assessment of a terrorist threat, using on-line resources, and conducting topical research . . . ."27
Although neither the 1989 nor the 2002 Attorney Generals' Guidelines referenced special events, the 2008 Guidelines state that the FBI may conduct assessments as part of its special events management responsibilities. More broadly, the 2008 Guidelines state: "participation of the FBI in special events management, in relation to public events or other activities whose character may make them attractive targets for terrorist attack, is an authorized exercise of the authorities conveyed by these Guidelines."
2. FBI Policies Relating to Collection, Retention, and Dissemination of Special Events Information
FBI policies permit the collection, retention and dissemination of information relevant to the FBI's special events responsibilities, even in the absence of a preliminary inquiry or full investigation.
In an EC dated May 14, 2004, the FBI addressed the collection, retention and dissemination of information during special events. The FBI sent this EC to all FBI divisions to clarify the terminology that field division agents should use when sending lead requests to other divisions. The EC stated that the type of information which should be collected, retained, and disseminated is that which is relevant to an open preliminary inquiry or full investigation, sufficient to predicate a newly authorized preliminary inquiry or full investigation, or relevant to an authorized FBI law enforcement function such the FBI special events mission. The May 2004 EC concluded by requiring FBI field offices to include the following sentence in the last paragraph of any EC that requests special events related information from other FBI offices: "Forward positive intelligence from sources with knowledge of planned activity by individuals, domestic or international groups under open preliminary inquiries or full investigations, as well as intelligence from any source indicative of unlawful activity or other acts of violence."
As stated above, the 2008 Guidelines state that the FBI may conduct assessments as part of its special events management responsibilities. As a general matter, the 2008 Guidelines authorize the retention of records created relating to the activities pursued under the Guidelines. The DIOG addresses information obtained as a result of an assessment and generally states that such information may be retained. However, DIOG § 5.13 provides that if an assessment turns up no sufficient basis to justify further investigation of an individual or group, then the records must be clearly annotated to state that the individual or group identified during the assessment does not warrant further FBI investigation.
V. Statutes and Rules Governing the FBI's Collection, Maintenance, and Dissemination of Information about the First Amendment Activities of Individuals or Groups
In this section, we provide a background on the applicable standards governing the collection, retention, and dissemination of information about the First Amendment activities of individuals and groups. These standards are primarily found in the Privacy Act of 1974, the Attorney Generals' Guidelines, and the MIOG's Part 1, § 1-4 and 100-4.
A. The Privacy Act of 1974
The Privacy Act of 1974, 5 U.S.C. § 552a, contains various provisions relating to federal agency records that reference information about individuals. These provisions include requirements on agencies collecting, maintaining, or disseminating records about individuals. However, the Privacy Act applies only to records that provide certain information about individuals and not to references in agency records about corporations, organizations, or groups. Below we discuss the requirements placed on agencies by the Privacy Act that are most relevant to our review.
The Privacy Act, 5 U.S.C. § 552a(e)(7), prohibits agencies from maintaining records "describing how any individual exercises rights guaranteed by the First Amendment unless expressly authorized by statute or by the individual about whom the record is maintained or unless pertinent to and within the scope of an authorized law enforcement activity."
Office of Management and Budget (OMB) Guidelines interpreting the Privacy Act advise agencies to "apply the broadest reasonable interpretation" when determining whether a record describes an individual's First Amendment exercise. 40 Fed. Reg. 28,948, 28,965 (July 9, 1975). Courts have held that the prohibition applies only to records that describe how the individual exercised his or her First Amendment Rights and not to records that merely indicate "that such a right was exercised."28
When the FBI describes an individual's exercise of First Amendment rights in a record, 5 U.S.C. § 552a(e)(7) permits retention if it is expressly authorized by statute, by the individual, or if the information is "pertinent to and within the scope of an authorized law enforcement activity." What constitutes "authorized law enforcement activity" (a term not defined in the Privacy Act) is a question that has been the subject of voluminous litigation. As discussed in the next section, the Guidelines provide guidance for interpreting this language with respect to FBI records.
B. Attorney General's Guidelines
The 2002 Guidelines referenced the law enforcement exception contained in the Privacy Act, 5 U.S.C. § 552a(e)(7). The Guidelines defined "authorized law enforcement activities" for purposes of the Privacy Act to "include carrying out and retaining information resulting from the checking of leads, preliminary inquiries, or investigations" as well as activities authorized in Part VI of the Guidelines.29 However, the 2002 Guidelines stated that this list of activities was not exhaustive, "and does not limit other authorized law enforcement activities, such as those relating to foreign counterintelligence or foreign intelligence." The 2008 Guidelines contain a comparable provision. In sum, according to the Guidelines any information that may be collected and retained under the Guidelines is deemed to be "within the scope of an authorized law enforcement activity" and therefore falls within the Privacy Act exception, 5 U.S.C. § 552a(e)(7).
The 2002 Guidelines also expressly authorized the FBI to disseminate information acquired during the checking of leads, preliminary inquiries or full investigations - including properly collected information about an individual's exercise of First Amendment rights - to other components of the Department to Justice. In addition, the 2002 Guidelines authorized dissemination of such information to other federal agencies or to state or local criminal justice agencies when the information: (1) falls within the investigative or protective jurisdiction or litigative responsibility of the agency; (2) may assist in preventing a crime or the use of violence or any other conduct dangerous to human life; (3) is required to be furnished to another agency by Executive Order 10450; or (4) is required to be disseminated by statute, interagency agreement approved by the Attorney General, or Presidential Directive.30 The 2008 Guidelines contain a comparable provision, except that dissemination is authorized to other federal, state, local or tribal agencies "if related to their responsibilities and, in relation to other Intelligence Community agencies, the determination whether information is related to the recipient's responsibilities may be left to the recipient."
C. FBI Policy
FBI policy, primarily in the MIOG, addresses the collection, retention, and dissemination of information in FBI records about groups or individuals and the implications on First Amendment activities. Below we discuss the provisions that were most relevant to our review.
1. Collection of Information Concerning First Amendment Exercise
Section 1-4 of the Introduction to the MIOG addressed the FBI's investigative authority and the First Amendment and mirrored requirements of the Privacy Act, 5 U.S.C. § 552a(e)(1) and (7).31 However, the MIOG expanded the application of Privacy Act principles to include protection for groups as well as individuals.32 Section 1-4(4) states:
[T]he collection of information concerning groups and individuals must be justified as reasonable and necessary for investigative purposes. Information concerning the exercise of First Amendment rights should be made a matter of record only if it is pertinent to and within the scope of the authorized law enforcement activity . . . ."33
The MIOGs Introduction, § 1-4(4) and Part 1, § 100-4(5) also addressed the collection of "public-source printed material concerning the exercise of First Amendment rights" and required that when such material was to be retained, "a notation must be placed on the material describing the reason(s) it was collected and retained." It stated: "The notation must clearly indicate the specific investigative interest(s) which led to the decision to retain the item."34 There are no comparable provisions in current FBI policy addressing the collection of information concerning groups or requiring specific notations on public source material. However, the DIOG states that investigative activity may not be based solely on the exercise of First Amendment rights, while noting that the Privacy Act is an important corollary to this principle in prohibiting the retention of information describing how a person exercises First Amendment rights. See DIOG § 4.2.
2. Collection of Publicly Available Information
The MIOG, Part 1 § 100-4, addressed the publications of terrorism enterprise organizations and the collection of publicly available information. Part 1 § 100-4(2) stated that while the FBI was authorized to collect as "library material" general information available to the public, (e.g., news media data banks, newspapers, magazines), such information "should not be indexed as to particular individuals or placed in FBI files." However, publications of a group that is the subject of an investigation could be collected and placed in an investigative file or indexed as to particular individuals.35 Part 1, § 100-4(4) stated:
All information received or made available to the FBI during the course of an investigation should be evaluated for its pertinence to the investigation. This is particularly true when information concerns exercise of an individual's or group's First Amendment rights. In such cases, the information concerning the exercise of First Amendment rights should be made a matter of record only if it is pertinent to and within the scope of the authorized law enforcement activity.
There are no provisions in current FBI policy expressly addressing the retention of information concerning the exercise of a group's First Amendment rights. The DIOG states that the Privacy Act prohibits the retention of information describing how a person exercises rights under the First Amendment. See DIOG § 4.2. Although courts have held that the Privacy Act does not apply to corporations and other organizations, the FBI also applies this DIOG provision to such groups.
3. Characterization of Groups or Individuals in FBI Records
The MIOG Introduction, § 1-4(5), addressed characterizations of groups or individuals and required that characterizations in FBI records reflect whether the characterization was made by a third party. However, the MIOG provided that the FBI record may also state whether the characterization comports with the results of an independent FBI investigation. These same requirements were also applicable to characterizations of a group or individual appearing in printed public source material disseminated by the FBI.36 The DIOG superseded the MIOG, Introduction, § 1-4(5), and current FBI policy does not otherwise expressly address these requirements.
The MIOG, Part 1, § 100-3.1.5, and the FBI's Manual of Administrative Operations and Procedures (MAOP), Part 2, § 10-17.13.1, also addressed certain characterizations appearing in certain FBI records about a subject organization at the time when a domestic security/terrorism investigation was initiated under the Terrorism Enterprise classification used for domestic terrorist groups. Such characterizations were required to "include a statement regarding the political or social goals which the group hopes to achieve through violence, its geographic area of operation, and a summary of the violence or criminal activity it either has been involved in or is advocating in the future."37 These MIOG and MAOP provisions are still in effect.
VI. FBI Terrorism Classifications
The FBI classified many of the investigations we reviewed as pertaining to "acts of domestic terrorism" and, in one case, as a Terrorism Enterprise investigation. These classifications raised questions about whether the FBI has expanded the definition of domestic terrorism to people who engage in mainstream political activity, including nonviolent protest and civil disobedience. As described in this section, the consequences of being identified as the subject of a "terrorism" investigation may include being placed on a terrorism watchlist. In subsequent chapters, we discuss some specific cases in which the FBI's naming of individuals as subjects of terrorism investigations have led to their being placed on terrorism watchlists.
A. Terrorism Enterprise Investigations
Part 1, § 100 of the MIOG, reserves an investigative classification for suspected domestic terrorist groups and incorporated the definition of a Terrorism Enterprise investigation found in the 2002 Guidelines, discussed above.
B. Act of Terrorism - Domestic Terrorist
According to the MIOG, the Act of Terrorism classification "was developed in order to focus upon the specific criminal activity of the domestic terrorist," that is, specific criminal violations "on the part of a person or persons affiliated with a domestic terrorist group."38 For the first several years of our review period, the MIOG, Part 1 § 266-1(1), stated that the Act of Terrorism classification "shall include any investigation of a criminal act which involves an individual or individuals affiliated with a domestic terrorist group."
Effective July 9, 2003, the FBI changed this language to state that the Act of Terrorism classification "shall include any investigation of a criminal act which involves an individuals) who seeks to further political and/or social goals wholly or in part through activities that involve the use of force or violence and violate federal law."39
In a September 1, 2004, EC, the FBI Counterterrorism Division issued new policies regarding investigative activities directed at domestic groups or individuals who engage, at least in part, in exercising constitutionally protected rights, such as protest activities. The EC required any Act of Terrorism matter which is "directed at groups or persons who may be engaged in planning criminal or terrorist activity in relation to their exercise of constitutionally guaranteed freedoms" to be "reviewed for sufficient predication by the field office Chief Division Counsel prior to the opening of the case." "(])n order to ensure compliance with established directives and policies regarding preservation of civil liberties," the EC mandated the "continuous involvement" of the Chief Division Counsel in the Act of Terrorism investigation "through periodic consultation, at least semi-annually," which must be documented in the Act of Terrorism file. The September 2004 EC also stated that opening ECs for this category of Act of Terrorism cases must fully set forth the predication and document the Chief Division Counsel's concurrence. Further, the EC instructed field supervisors to review pending domestic terrorism cases fitting the above description in order to ensure compliance with the new policy.
The new requirements issued in this EC were added to Part 1, § 266-3(6) of the MIOG, which stated that "investigations that target subjects engaged at least in part in the exercise of constitutionally protected freedoms, such as protest, demonstrations and civil disobedience must comply" with the new policy requirements. In 2009, the FBI's Inspection Division issued a report of the FBI's Domestic Terrorism program in which it found a 47 percent compliance rate with the requirements in MIOG Part 1, § 266-3(6).
C. Placement of Individuals on Terrorist Watchlists
One significant consequence of the FBI's terrorism classifications is that persons identified as subjects of full investigations in Act of Terrorism cases must be placed on watchlists. One such watchlist list is the Violent Gang and Terrorist Offender File (VGTOF). VGTOF became fully operational on October 1, 1995, and provides identifying information about persons placed in the database to members of the law enforcement community who come into contact with such persons such as during a traffic stop.40 Initially, VGTOF was primarily used to track violent street gangs and gang members. Also, initially a person was entered on VGTOF at the discretion of an FBI agent or other law enforcement official if criteria was satisfied indicating the person was associated with a violent street gang or terrorist organization. Beginning in January 2002, the FBI required its field divisions to enter all subjects of international and domestic terrorism preliminary inquiries and full investigations into VGTOF. In June 2002, the FBI modified this requirement and allowed field divisions the discretion to enter subject identities of international and domestic terrorism preliminary inquiries. In January 2004, the FBI modified the policy again to remove the field division's discretion to enter subjects of international terrorism preliminary investigations and require their entry into VGTOF.
In March 2004, the FBI's Terrorist Screening Center (TSC) created the consolidated terrorist watchlist, also known as the Terrorist Screening Database (TSDB). The consolidated terrorist watchlist merged terrorist watchlists that were separately maintained by various federal government agencies. The watchlist is used to alert officials who may screen individuals at various points such as when an individual attempts to travel on a commercial airline or is stopped by a law enforcement officer for a traffic violation. The TSDB maintains all watchlist data and exports information to several "downstream" screening databases, including the FBI's VGTOF.41
Since 2008, the FBI has been the only agency within the Department of Justice that formally nominates individuals to the consolidated terrorist watchlist.42 FBI policy requires that all subjects of international terrorism preliminary and full investigations and domestic terrorism full investigations be nominated to the consolidated terrorist watchlist. Subjects of domestic terrorism preliminary inquiries may be nominated to the watchlist at the discretion of the field office opening the matter.43
During the time period under review, FBI policy required that subjects of closed investigations be removed from the watchlist and prohibited the nomination of subjects from closed investigations. However, under limited circumstances, FBI policy allowed certain subjects of closed international terrorism full investigations to be retained on the watchlist. FBI policy required that all domestic terrorism subjects and international terrorism preliminary inquiry subjects be removed from the watchlist when the case is closed.
A subject's inclusion on the consolidated terrorist watchlist could also have consequences for associates of the subjects, even though they are not themselves the subject of any investigation. The TSC Associates Project was developed to identify possible associates of known or suspected terrorists who are on the watchlist. According to the Terrorist Screening Center:
During their normal course of duties, law enforcement officers, [Department of State] officials and Border Agents encounter known or suspected terrorists in the TSDB from querying their case management systems during an encounter. These encounters provide valuable information which includes who the known or suspected terrorist is with at the time of the encounter. These encounters with possible associates will be documented and provided to the office of origin for appropriate action.44
During our review we determined that in several cases individual subjects of the investigations we examined were place on watchlists such as VGTOF as a result of the FBI's use of the Act of Terrorism classification.
12 MIOG, Introduction, § 1-4(1).
13 Id. at § 1-4(2).
15 The Guidelines stated: "There is 'often . . . a convergence of First and Fourth Amendment values' in such matters that is not present in cases of 'ordinary' crime.'" 2002 Guidelines at 12, quoting, United States v. United States District Court, 407 U.S. 297, 320 (1972).
16 FBI policy states that in "the case of those investigations with the potential to infringe upon First Amendment rights, consideration must be given to using those techniques that are less intrusive and less likely to adversely affect the exercise of those rights." MIOG, Introduction, §1-4(3).
17 The 1989 Guidelines had language similar to the 2002 Guidelines stating that the FBI should consider whether information "could be obtained in a timely and effective way by less intrusive means." However, the 1989 Guidelines also stated that the techniques employed in preliminary investigations "should be generally less intrusive than those employed in a full investigation." The 1989 Guidelines did not state that the FBI should not hesitate to use investigative techniques, particularly in matters related to potential terrorist activities.
18 The Guidelines expressly addressed one technique and its impact on the First Amendment, stating: "In situations involving undisclosed participation in the activities of an organization by an undercover employee or cooperating private individual, any potential constitutional concerns relating to activities of the organization protected by the First Amendment must be addressed through full compliance with all applicable provisions of the Attorney General's Guidelines on FBI Undercover Operations and the Attorney General's Guidelines Regarding the Use of Confidential Informants." The 1989 Guidelines also stated: "Undisclosed participation in the activities of an organization by an undercover employee or cooperating private individual in a manner that may influence the exercise of rights protected by the First Amendment must be approved by FBIHQ [FBI Headquarters], with notification to Department of Justice." The 2008 Guidelines state: "Undisclosed participation in organizations in activities under these Guidelines shall be conducted in accordance with FBI policy approved by the Attorney General." The DIOG contains FBI policy regarding undisclosed participation in organizations and provides that the FBI's policy for undisclosed participation "uses a risk model: higher approval levels are required for [undisclosed participation] that carries a greater risk to civil liberties because it is more intrusive." DIOG §16.1.B.
19 Courts have generally held that no chilling effect on First Amendment activities results from certain intelligence gathering activities, including government agents' attendance at public meetings, the recording of information collected at public meetings, and the collection and retention of publicly available information or information provided by other law enforcement agencies. See Laird v. Tatum, 408 U.S. 5, 6 (1972).
20 Our 2005 report on the FBI's compliance with the Attorney General's Guidelines described our difficulties in ascertaining the degree to which the FBI has used the Part VI.A.2 authority and found no standardized reporting, a lack of clear guidance, and "zero" files which served as repositories for information relating to a Part VI.A.2 activity. See DOJ OIG report, The Federal Bureau of Investigation's Compliance with the Attorney General's Investigative Guidelines, (Sept. 2005) at 188-202. As we detail in Chapters Four and Eight of this report, we found several instances in which the FBI used this authority with respect to the advocacy groups we selected for this review or their members.
21 Presidential Decision Directive 39 (June 21, 1995); 18 U.S.C. § 2332b(f). See also 28 C.F.R. § 0.85(1) and Homeland Security Presidential Directive 5 (February 2003).
22 MIOG, Part 1, § 300-1(2).
23 MIOG, Part 1, § 300-1(1). In addition, Presidential Decision Directive 62, issued by President Clinton in May 1998, assigns responsibility to the FBI for special events that are designated as National Special Security Events warranting stringent federal security measures. In a March 19, 2004, EC, the FBI stated that its special events subprogram includes events designated as National Special Security Events under Presidential Decision Directive 62 as well as other highly publicized and widely attended events for which the FBI has responsibility as part of its "general mission to detect and prevent terrorism."
24 For additional details and background on the FBI's special events mission, see DOJ OIG report, A Review of the FBI's Investigative Activities Concerning Potential Protesters at the 2004 Democratic and Republican National Political Conventions, (Apr. 27, 2006), at 4-7, available at http://www.usdoj.gov/oig/special/s0604/final.pdf, hereinafter, "2006 Protesters Report."
25 MIOG, Part 1, § 300-1(5)(b).
27 The FBI originally provided similar guidance in an April 26, 2004, EC. Other aspects of this EC are discussed in greater detail below. In the March 19, 2004, EC, issued by the FBI's General Counsel and sent to all FBI divisions, the FBI stated that its agents could attend and conduct surveillance of public events in connection with the special events mission authorized by Presidential Decision Directive 62.
28 Pototsky v. Department of Navy, 717 F. Supp. 20. 23 (D. Mass. 1989). See also England v. Commissioner of Internal Revenue, 798 F.2d 350 (9th Cir. 1986). (IRS's classification of individual as "tax protestor" based on tax return the individual submitted relates "only to the determination of tax liability, not to how [individual] has exercised his first amendment rights.")
29 The 1989 Guidelines did not address this provision of the Privacy Act.
30 The 1989 Guidelines authorized dissemination of information "during investigations" but did not reference checking of leads or preliminary inquiries. The 1989 Guidelines permitted dissemination to another agency based on the four circumstances identified in the 2002 Guidelines.
31 Similar provisions were contained in MIOG, Part 1, § 190-5.1.
32 The FBI's CTD emphasized in an April 2004 EC that it is advisable to apply the Privacy Act restrictions to information concerning not just individuals, but also to groups - especially those with social or political agendas. The EC stated that, "treating FBI records of information about a group's constitutional activities with the same level of retention criteria required for individual record of these activities would be consistent with agency policy on protecting civil liberties during the course of investigative activity." Current FBI policy does not have a provision requiring references to groups be justified as reasonable and necessary for investigative purposes. However, the DIOG § 5.13 provides that if an assessment turns up no sufficient basis to justify further information on an individual or group, then the records must be clearly annotated to state that the individual or group identified during the assessment does not warrant further FBI investigation.
33 A 1989 FBI document addressing the First Amendment and Privacy Act requirements contained a similar statement. It stated:
the FBI must ensure that our files are not repositories of all information concerning an individual or group under investigation. FBI files must contain only that information that is reasonably believed to be useful and necessary to the accomplishment of our mission.
Airtel from the FBI Director to All Special Agents In Charge (July 17, 1989).
34 MIOG, Introduction, § 1-4(4), and MIOG, Part 1, § 100-4(5).
35 MIOG, Part 1, § 100-4(3).
36 MIOG, Part 1, § 100-4(6).
37 MIOG, Part 1, § 184.108.40.206.
38 MIOG, Part 1, § 266-1(2).
39 These MIOG provisions suggest that the Act of Terrorism classification was, at least for a time, reserved only for investigations of criminal acts by individuals. However, effective December 30, 2004, revisions to the MIOG, Part 1, § 266-3(6), referenced Act of Terrorism investigations as "directed at groups or persons who may be engaged in planning criminal or terrorist activity . . ." (Emphasis added.)
40 The VGTOF is one of many files in the National Crime Information Center (NCIC), "a computerized database of documented criminal justice information available to virtually every law enforcement agency nationwide, 24 hours a day, 365 days a year." Hearing before the S. Comm. on Homeland Sec. & Gov. Affairs, 109th Cong. 22-199 (2005) (statement of Thomas E. Bush, Assist. Dir., Crim. Just. Info. Serv. Div., FBI).
41 Other downstream screening databases include the Interagency Border Inspection System, Consular Lookout and Support System, No-Fly List and Selectee List. See U.S. Department of Justice Office of the Inspector General, The Federal Bureau of Investigation's Terrorist Watchlist Nomination Practices, Audit Report 09-25, (May 2009) at 5, 69-70, available at www.justice.gov/oig/reports/FBI/a0925/final.pdf.
42 Although other DOJ components share information with the FBI about known or suspected terrorists, only the FBI formally nominates individuals to the watchlist. According to the FBI, the responsibility for the FBI to nominate individuals was established by a Department of Justice memorandum issued on October 3, 2008. Prior to then, other DOJ components could nominate individuals to the consolidated terrorist watchlist. For a discussion of the terrorist watchlist and the FBI's nomination process and practices, see U.S. Department of Justice Office of the Inspector General, The Federal Bureau of Investigation's Terrorist Watchlist Nomination Practices, Audit Report 09-25, (May 2009),and U.S. Department of Justice Office of the Inspector General, Audit of the U.S. Department of Justice Terrorist Watchlist Nomination Processes, Audit Report 08-16, (March 2008), available at www.justice.gov/oig/reports/plus/a0816/final.pdf.
43 The FBI stated that it has "thoroughly reviewed and updated the watchlist policies in a classified EC dated December 7, 2009. The FBI also stated that "the Terrorist Review and Examination Unit which has program management responsibilities for the watchlisting process has implemented major changes and detailed oversight protocols to monitor compliance" with watchlist policies. In addition, the FBI has stated that nomination to the watchlist is no longer automatic for subjects of terrorism preliminary investigations. The December 2009 EC provides that the FBI may nominate an individual only if it has "reasonable suspicion to believe that the subject is a known or suspected terrorist," based on "articulable" intelligence or information and an "objective factual basis." This is a higher evidentiary standard than the "possibility" standard for opening preliminary inquiries. The OIG has conducted a series of audits on the consolidated terrorist watchlist, and we intend to conduct more work in this area.
44 U.S. Department of Justice Office of the Inspector General, Review of the Terrorist Screening Center, Audit Report 05-27, (June 2005) at 100, available at www.justice.gov/oig/reports/FBI/a0527/final.pdf
|Join the GlobalSecurity.org mailing list|