FBI Lauds Loosening of Surveillance Regulations

Long before the world knew Buford Furrow for his violent rampage at an L.A. Jewish community center, the avowed white supremacist was familiar to the FBI.

A follower of the racist group Aryan Nations, Furrow had been among those watched for years by FBI agents who monitor the country’s home-grown terrorists.

But when Furrow parted ways with Aryan Nations in 1998, agents no longer had permission to trail him. “Because we were watching the group and not an individual, we were not allowed to follow him,” recalled one law enforcement official.

Whether keeping tabs on Furrow could have prevented his 1999 attack in Los Angeles is anyone’s guess. But current and former agents insist the restriction illustrates how federal regulations in place before the Sept. 11 attacks on the World Trade Center and the Pentagon hamstrung the FBI’s anti-terrorism efforts for years.

“I’m not saying--and I don’t think anybody in the FBI is saying--that if we had this law or this guideline changed we would have been able to prevent Sept. 11,” said Bill Gore, special agent in charge of the FBI’s San Diego office. “But there were certain restrictions that needed revisiting.”

Over the last four decades, the regulations guiding the conduct of FBI counter-terrorism agents have whipsawed back and forth, from virtually nonexistent under former Director J. Edgar Hoover to highly strict in the 1960s.

Restrictions were eased again after the terrorist attacks last year. First the USA Patriot Act, approved soon after the attacks, expanded the government’s authority to monitor private conversations and e-mail and eased the requirements for deporting noncitizens suspected of endangering national security. Then regulations announced in May, by U.S. Atty. Gen. John Ashcroft allowed agents to search the Internet for terrorist material, attend any event open to the public, and extend preliminary investigations for as long as a year without approval from headquarters in Washington.

But recently, questions have been raised about whether the new post-Sept. 11 guidelines went too far, too fast. The Foreign Intelligence Surveillance Act court, concerned about new efforts to broaden the bureau’s spying abilities, recently ordered Ashcroft to cut back on search warrants and wiretaps. The Justice Department has appealed the decision.

James X. Dempsey, deputy director for the Center for Democracy and Technology, a Washington-based civil liberties group, believes that the guidelines in place before Sept. 11 gave FBI agents plenty of latitude to investigate suspected terrorists.

“What they were required to do is focus their investigations on groups or individuals suspected of being involved in terrorism,” he said.

However, agents complained for years that they faced more restrictions pursuing international terrorists than they did on teenage street gang members.

They say rules adopted after Sept. 11 have greatly streamlined their efforts.

Under the old rules, for example, FBI agents asking the FISA court for permission to use surveillance were required to identify suspected terrorists as agents of a specific foreign power. But that often proved impossible, either because a suspect could not be linked to a specific hostile country or because the ability to make that connection hinged on court-ordered surveillance.

Some FBI agents say those problems led to the bureau not seeking a warrant in the summer of 2001 against suspected “20th hijacker” Zacarias Moussaoui, who was jailed in Minneapolis on an immigration violation.

“The intelligence guidelines were such that we were able to do some basic checks and that was about it,” said Nancy Savage, who heads the FBI Agents Assn.

“But when we were just trying to find out about someone who maybe hadn’t committed an act but we had reasonable belief was affiliated with terrorist groups, we were really hamstrung.”

Plenty of attention has been paid since Sept. 11 to the college and university records of potential terrorists or their associates, but the FBI was restricted from examining those records until recently.

To obtain the student records of someone they suspected of being involved in espionage, authorities were required to persuade a court that there was justification to bypass the federal statute.

But to do that could require them to disclose sources or present classified information in a federal court not equipped to handle top secret evidence.

“There was no way to protect that classified information” from being released, Gore said.

Authorities now have greater access to the FISA court to make a case for obtaining student records.

Under the old Justice Department guidelines, FBI agents also faced the time-consuming prospect of vetting anti-terrorism investigations through headquarters.

During the mid-1980s, a domestic terrorism unit had to wait for FBI headquarters to authorize a full-scale investigation into a group of white radicals called the Arizona Patriots, even though the FBI had heard that they were plotting an armored car robbery.

The FBI eventually got approval from Justice for an undercover agent who infiltrated the group and determined that two members were planning to blow up a synagogue in Phoenix.

“Had he not been there, that might have occurred,” former Phoenix agent Ron Myers said. “And had we been stalled any longer, the potential for other violence with this group was significant.”

The old rules also hampered the FBI in other, illogical, ways current and former agents say.

“If I wanted to go surf the Internet and check out public entities, I could do that as John Q. Public,” Los Angeles agent Stephen Moore said.

But until the new rules were in place, FBI counter-terrorism specialists such as Moore were precluded from simply scanning Web sites on a computer unless they had a reasonable suspicion that a group was committing a crime.

The same sorts of restrictions applied to agents who considered monitoring a public gathering with a hunch--but no hard evidence--that its participants were terrorists.

“I remember one day sitting in the office and watching a bunch of people demonstrating outside the federal building” in Westwood, where the Los Angeles FBI offices are located, Moore said.

“We knew some of the people in that crowd but we could not go down there. We literally could not go on our own lawn because they had a right to protest and we would be violating their rights with a surveillance.”

Under the rules announced by Ashcroft in May, agents can take part in the same activities available to the public--be it online browsing or eyeing a demonstration.

But many critics wonder if FBI agents will stop there.

“Obviously, we condemn the attacks of Sept. 11,” said Wendy Patten of Human Rights Watch. “But we have to be very careful, that in pursuing this investigation, that we uphold the very values President Bush has said were under attack on Sept. 11. Values like openness, government accountability and the rule of law.”

In this new age of terrorism, current and former agents say the FBI no longer can play by old rules.

“I think the American public realizes now,” Gore said, “that the only way we are going to prevent future acts of terrorism is through aggressive intelligence gathering in the United States and abroad.”