On July 28, 2010, FBI Director Robert Mueller faced questions from Congress about FBI guidelines that allow surveillance on Americans without evidence of criminal wrongdoing. Mueller also told the Senate Judiciary Committee that he did not know how many FBI agents may have cheated on an exam to demonstrate their understanding of the guidelines, called the Domestic Intelligence and Operations Guide (DIOG). Civil liberty advocates, already troubled by the wide discretion DIOG gives FBI agents, said the testing scandal only makes the situation worse.
Mueller told the Committee that the DIOG are being used properly and that agents are not targeting people for investigation based on race. The FBI “does not target persons or groups based on race, ethnicity or religion,” he said.
In response to a question from Sen. Richard Durbin (D-Il), Mueller said the fact that a particular religious group is involved “is not enough” to trigger surveillance. “There has to be something more,” Mueller said. Mueller also said the DIOG requires a reasonable suspicion of wrongdoing before FBI agents could conduct surveillance, although the guidelines have no such standard. According to the Washington Post, Mueller sent a note to Durbin after the hearing saying he had misspoken. The FBI must have a proper purpose before conducting surveillance, but suspicion of wrongdoing is not required, he said.
Asked about the cheating scandal, Mueller said he was unsure how widespread the problem was. “I’ve got a general idea, but I do not know how many,” he said.
The Justice Department Inspector General is investigating whether hundreds of agents cheated on a test to measure their comprehension of the rules outlined in the DIOG. In one case, agents in Columbia, South Carolina said they received permission to use a copy of the test as a study guide in advance of the exam. Depending on the results of the investigation into the cheating scandal, agents could face serious consequences. In 2009, the head of the FBI’s Washington field office that investigates congressional wrongdoing retired after allegations surfaced that he cheated on the exam.
“I am confident that the . . . testing and the continuous training we have has put our workplace and our people in a position to fully know and understand the opportunities, but also the limitations of what we can do,” Mueller testified.
Michael German, policy counsel for the American Civil Liberties Union, said civil liberties groups are concerned about both activities permitted by the DIOG, such as infiltrating religious groups based on no criminal wrongdoing, and the FBI agents’ understanding of them.
“They’re not actually even doing their homework to know what the rules say,” said German, also and a former FBI agent. “If the training and oversight themselves are inefficient or are ineffective, then obviously that’s just one more example of how internal oversight is not enough,” he added.
Approved in late 2008, the DIOG are the standards and procedures that guide all the FBI’s domestic operations, including counterterrorism and counterintelligence. Civil liberty advocates are concerned it authorizes unconstitutional racial profiling by law enforcement. According to the ACLU, the DIOG permits FBI agents to collect and map demographic data using criteria, such as behaviors, lifestyle characteristics and cultural traditions in communities with large ethnic communities. 32 ACLU affiliates filed Freedom of Information Act (FOIA) requests on July 27. “The public deserves to know about a race-based domestic intelligence program with such troubling implications for civil rights and civil liberties,” said Melissa Goodman, staff attorney with the ACLU National Security Project.