Courts Likely to Endorse FBI Policy, Experts Say

An FBI newly freed to spy on Americans may arouse alarm among civil libertarians, but it is not likely to run afoul of the federal courts.

That’s because Atty. Gen. John Ashcroft is urging FBI agents to gather information that is widely available or can be obtained through searches of public places.

The 4th Amendment forbids “unreasonable searches and seizures” by government agents, and the Supreme Court has said that this right is triggered only when and where individuals have a “reasonable expectation of privacy.”

As such, agents may not break into a home or tap a telephone unless they first obtain evidence of a “probable” cause and use it to get a search warrant. But a government agent spying on people in public places, even churches or mosques, or entering an Internet “chat room” does not violate the 4th Amendment, legal experts say.

“There is no right to privacy when you are in public,” said Georgetown University law professor David D. Cole, who has battled the government on behalf of Palestinian activists in Los Angeles and others who say they were unfairly singled out for prosecution.

Ashcroft’s announcement Thursday changed the government’s guidelines to encourage agents to gather more information, even when they have no evidence of a crime in progress.

“The FBI must draw proactively on all lawful sources of information to identify terrorist threats,” Ashcroft said.

Agents who learn that someone is trying to “acquire, without apparent reason, toxic chemicals, radiological or nuclear materials” should investigate without waiting for proof of a possible crime, the guidelines say.

Ashcroft is not alone in thinking that the attacks of Sept. 11 call for a new, more aggressive approach by the FBI.

“If you have terrorists inside your borders, you don’t have the luxury anymore of separating law enforcement from the need to gather intelligence,” said Stewart A. Baker, former general counsel for the National Security Agency. “Before 9/11, the risk to our security seemed theoretical and remote. Now it seems concrete. We would be foolish not to reconsider the balance” between privacy and security.

Much of what Ashcroft is proposing simply takes into account modern information technology, Baker added. “In the 1970s, maintaining a clip file on someone was a big deal. Now, Google does it for you,” he said, referring to the popular Internet search engine.

But the new guidelines also free the FBI from its own history, a point that civil libertarians stressed Wednesday.

In the 1970s, revelations that then-FBI Director J. Edgar Hoover ordered agents to spy on Dr. Martin Luther King Jr., Vietnam War protesters and a long list of celebrities and political activists prompted the Justice Department to rein in the bureau’s operations.

Under then-Atty. Gen. Edward Levi, the department adopted guidelines saying that agents were to investigate real crimes, not spy on people or groups who were deemed suspicious. Agents were told to launch investigations only where they had a “reasonable indication” of a crime. And they were not to gather files on individuals, even if the information itself had appeared in newspapers or magazines.

“We decided as a country it was inappropriate to spy on people who are merely exercising their 1st Amendment rights,” said Gregory T. Nojeim, associate director of the American Civil Liberties Union’s national office in Washington. “This allows them to investigate with no evidence of a crime. FBI agents should not be lurking in chat rooms or scanning the Internet to find someone doing something wrong. It conjures up the vision of Big Brother watching you, and we don’t need to go down this road to prevent terrorism.”

Cole, the Georgetown law professor, said the new guidelines would encourage FBI agents to target Muslims and Middle Easterners for surveillance.

“The FBI has had a proclivity for a guilt-by-association philosophy. They have a history of abusing their powers when it comes to dissident political groups,” he said. Although the investigations may not violate the 4th Amendment, they might violate the 1st Amendment, he said, adding that this “imposes a chilling effect on legitimate political activity.”

But the Supreme Court has been none too friendly to such claims.

Three years ago, the justices, by an 8-1 vote, rejected a claim of selective prosecution brought by eight Palestinian activists in the Los Angeles area who said they had been secretly investigated and slated for deportation because they held a fund-raising dinner for the Popular Front for the Liberation of Palestine. The government described the PFLP as a terrorist group, but the men said they were raising money to support hospitals and youth clubs on the West Bank.

Neither Ashcroft nor FBI Director Robert S. Mueller III directly addressed the issue of searches and warrants.

In her well-publicized “whistle-blower” letter to Mueller last week, Coleen Rowley, general counsel in the bureau’s Minneapolis office, sharply criticized what she called “an excessively high standard of probable cause in terrorism cases.”

But Ashcroft deferred a comment on that issue Thursday, focusing instead on the procedures for gathering information that is essentially public in nature.

Anticipating criticism from civil libertarians, Ashcroft said agents would be told to respect 1st Amendment rights. The purpose of a probe is to “detect and deter terrorism,” he noted, not to gather information on immigrants or political groups.

“It is important that such investigations not be based solely on activities protected by the 1st Amendment or on the lawful exercise of any other rights secured by the Constitution or the laws of the United States,” the guidelines say.