CRS Report: FBI Investigations Often Exceed Constitutional Restraints

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Date: 
May 1, 2013

"Intelligence activity in the past decades has, all too often, exceeded the restraints on the exercise of governmental power that are imposed by our country's Constitution, laws, and traditions," according to an April 24, 2013 Congressional Research Service report. The Federal Bureau of Investigation and Terrorism Investigations reviews how the FBI investigative process has changed over the past decade and offers oversight considerations for Congress.

One of the main themes of the report is the transformation of the FBI from a reactive organization before 9/11 to one that has “taken a much more proactive posture, particularly regarding counterterrorism.”  Along with an increase in intelligence gathering and sharing activities with other law enforcement actors, changes to the FBI’s Domestic Investigations Operations Guide (DIOG) gives the agency “more leeway to engage in proactive investigative work that does not depend on criminal predication.”

Under the rules in the DIOG (which went into effect in Oct. 2011), preliminary investigations can be opened “with any allegation or information indicative of possible criminal activity or threats to the national security.” Agents have the authority to use surveillance teams to investigate individuals and organizations without a search warrant or opening a formal investigation.  This has led to a glut in assessments.   According to the CRS report, between March 2009 and March 2011, nearly half of the 82,325 assessments conducted focused on determining whether specific groups or individuals were spies or terrorists, out of which less than 2,000 led to full or preliminary investigations.

The CRS report also notes that critics have voiced strong concerns about these Guidelines. The Brennan Center for Justice released a study in 2011 that said that they “tip the scales too far in favor of relatively unchecked government power, allowing the FBI to sweep too much information about too many innocent people into the government’s view. In so doing, they pose significant threats to Americans’ civil liberties and risk undermining the very counterterrorism efforts they are meant to further.”

In its recommendations for Congress, the CRS report suggests looking at the volume of intelligence reports the FBI produces annually.  For example, in 2010, over 25,000 intelligence reports on counterterrorism, counterintelligence, and other topics were produced. “It may be of oversight interest to Congress to examine the value of these reports, their accessibility within the intelligence and law enforcement communities, and the views of various consumers about them.”