The Justice Department is finalizing rules that would allow FBI agents to solicit informants and use other new techniques to bolster the agency’s intelligence-gathering operation in the United States, officials said Friday.
The changes would expand rules the department enacted after the Sept. 11 attacks that permitted the FBI to conduct “assessments” of threats of terrorism and espionage even in instances where little or no proof existed of criminal activity.
Such assessments are separate from formal investigations, which can involve more invasive investigative methods but which require harder evidence.
Justice officials said the FBI had been hamstrung in carrying out the earlier mandate because the agency had been limited to “overt” intelligence-gathering techniques, such as permitting agents to conduct interviews only when they identified themselves.
But the proposed revisions have raised concerns among civil liberties groups that the FBI would have too much latitude to collect information on U.S. residents and would be allowed to track people based on their race or ethnicity.
The new rules are expected to be signed in the next several weeks by Atty. Gen. Michael B. Mukasey. Meanwhile, FBI agents are already being trained as if the new rules are in effect. The House and Senate judiciary committees are expected to question FBI Director Robert S. Mueller III on the issue next week.
Justice officials discussing the changes requested anonymity so they could speak more freely about them and because the changes have not been finalized.
The revisions underscore the changing mandate of the FBI since the Sept. 11 attacks. While maintaining its traditional law enforcement functions, the agency has been trying to significantly boost its domestic intelligence-gathering capabilities to find terrorists before they can act.
That has led to different guidelines on the methods and techniques agents can use at different phases of investigations, depending on whether the probes involve potential crimes or national security concerns. In general, agents have been more constrained when working on national security matters.
“We view the distinction as illogical as a matter of policy,” one of the Justice officials said. “It interferes with our ability to be an intelligence-driven agency.”
The official cited a hypothetical example in which the FBI receives a tip about illegal activity in a bar.
If a tipster claims that a patron is dealing drugs, the guidelines for criminal investigations allow agents to conduct more intrusive preliminary interviews and take other action.
If the tipster claims the patron is raising money for a suspected terrorist group, an obvious national security concern, the alternative guidelines limit investigators to the more public methods, absent more evidence.
The officials said the new rules would also make it easier for the FBI to collect intelligence on the activities of foreign governments in the United States.
In assessing possible terrorist threats, agents now are limited to conducting interviews and gathering data through public sources, such as the Internet. The changes would allow them to conduct physical surveillance in a public location, recruit and deploy informants, and conduct interviews without identifying themselves.
The officials said those methods are already permitted in criminal cases. They said agents would be unable to use methods such as physical searches or wiretaps, which are limited by statute or require court approval.
Privacy and civil liberties advocates, who were briefed on the rules Friday by Justice Department officials, said they feared that agents would use such factors as ethnicity or religion as the basis for a threat assessment.
They also questioned the wisdom of giving the agency new authority. The bureau has been criticized for how it has used some of the new powers it was granted after 9/11.
“Handing this kind of latitude to an organization already rife with internal oversight problems is a huge mistake,” said Caroline Fredrickson of the ACLU’s Washington office. “Agents will be given unparalleled leeway to investigate Americans without proper suspicion, and that will inevitably result in constitutional violations.”
Justice officials said investigations would not be opened based solely on a person’s race or religion. But they also said that in many cases, such considerations cannot be ignored.
“It is simply not responsible to say that race may never be taken into account when conducting an investigation,” said spokesman Brian Roehrkasse. He said that although the department remains sensitive to the profiling issue, “the reality is that a number of criminal and terror groups have very strong ethnic associations.”