Report: FBI Investigative Powers: Unchecked and Too Broad

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Date: 
February 1, 2011

The largely unchecked investigative powers of the Federal Bureau of Investigation (FBI) undermines counterterrorism efforts and adversely impacts First Amendment activity, says a Brennan Center For Justice report released on Jan. 18, 2011. Expanded in December 2008, these powers permit the FBI to monitor individuals and organizations that are engaged in political, religious and social activity without a suspicion of wrongdoing. The report calls for Congressional oversight and the curtailing of FBI authority to use highly intrusive investigative techniques unless there is evidence of wrongdoing. The report comes out on the heels of a report from the Electronic Frontier Foundation revealing the FBI violated the civil liberties of Americans (up to 40,000 times) between 2001-2008. 

Domestic Intelligence: New Powers, New Risks describes the invasive techniques used by the FBI to gather information on law-abiding Americans as “troubling.” It says methods of investigation by law enforcement permitted by the Attorney General’s Guidelines for Domestic FBI Operations (Guidelines) include, “going to political meetings or religious services to collect in­formation about what takes place there and who attends; pretending to be an investigative target’s new neighbor or business associate, or stationing agents outside the target’s home or office—even having them followed—so that their movements are tracked day and night; accessing without a court order telephone and e-mail subscriber information.”

According to the report, several recent investigations where informers have infiltrated mosques “have sown a corrosive fear” among many Muslim-Americans “that F.B.I. informers are everywhere, lis­tening.” This has led to a perception by many in that community that the Guidelines “impact dispro­portionately the freedom of expression and association of law-abiding members of certain groups. This percep­tion risks undermining any otherwise beneficial aspects of the Guidelines by alienating the very communities whose cooperation is most essential.” Other chilling effects from the FBI’s activities include questioning donors of certain charities and creating an atmosphere of suspicion among community members resulting in smaller participation in activities and canceled trips abroad to avoid appearing suspicious. The Guidelines have been criticized widely by members of the Senate and civil liberty advocates.
 
The invasive investigative methods permitted by the Guidelines, the report finds, inhibit developing healthy police-community relations that support counterterrorism strategies and creates a glut of unnecessary information. “Some perceive investigations under these Guidelines to impact dispro­portionately the freedom of expression and association of law-abiding members of certain groups. This percep­tion risks undermining any otherwise beneficial aspects of the Guidelines by alienating the very communities whose cooperation is most essential. Moreover, the sheer volume of information collected raises the concern that it will elude meaningful analysis.”
 
Written by Emily Berman at the Brennan Center For Justice, the report recommends some of the powers extended to the FBI be curtailed and checks on FBI powers either installed or reinstituted. These checks would include changing internal procedures and regular external checks from Congress and the public.
 
The FBI has not made any public comments about the report.
 
Daveed Gartenstein-Ross, director of the Center for Terrorism Research at the Foundation for Defense of Democracies, was critical of the report’s findings.  He argues that FBI cases should be considered in context and that profiling based on race, religion, or ethnicity is sometimes necessary to help advance legitimate investigations.
 
Patterns of Misconduct: FBI Intelligence Violations from 2001 - 2008


According to the Electronic Frontier Foundation (EFF), “In a review of nearly 2,500 pages of documents released by the Federal Bureau of Investigation as a result of litigation under the Freedom of Information Act, EFF uncovered alarming trends in the Bureau’s intelligence investigation practices. The documents consist of reports made by the FBI to the Intelligence Oversight Board of violations committed during intelligence investigations from 2001 to 2008.”
 
EFF’s analysis of the documents shows that between 2001 and 2008, the FBI did not comply with oversight guidelines, abused their authority to issue National Security Letters, and failed to carry out investigations within the bounds of the Constitution or other federal statutes governing intelligence-gathering. EFF has determined that the FBI may have committed as many as 40,000 violations in the 10 years since the attacks of 9/11.
 
To see the FBI documents, EFF’s analysis and more, click here.