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An "Intelligent" FBI

New procedures for domestic intelligence gathering.

5:10 PM, Oct 10, 2008 • By GARY SCHMITT
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On Friday, October 3, all eyes were on Washington, as the House passed the $700 billion bailout bill designed to head off an economic 9/11. Lost in the news that day was the Bush administration's decision to release a new set of attorney general guidelines for the FBI's domestic operations. This will almost certainly be the administration's last major post-9/11 policy initiative before it leaves office.

The AG Guidelines, contained in a publicly-available document, are intended to govern how the Bureau goes about its business here in the United States. It sets out the Bureau's responsibilities under existing laws and executive orders and spells out how its analytic, investigative, and intelligence activities are to be carried out to meet those tasks. Although Congress can certainly step in and legislate changes in how the FBI works, the guidelines themselves do not require congressional approval and will go into effect on December 1.

The new set of guidelines replaces five separate and overlapping sets of previous guidelines. For example, in the past, there were separate guidelines (some public, some not) governing criminal, national security, and foreign intelligence investigations. The implicit point in consolidating the operational rules is of course to address the pre-9/11 problem in which intelligence and criminal investigations were largely seen as distinct spheres, resulting in a set of bureaucratic rules that overly compartmentalized what each could share with the other.

What's also new is the underlying point that domestic intelligence collection isn't simply about catching someone breaking a law; prior to 9/11, the general thrust of previous guidelines was that the predicate for collecting information would rest on the Bureau having in hand some prior evidence that someone was engaged in law-breaking activities. The danger posed by international terrorism (New York and Washington, 9/11/01; Madrid, 3/11/04; London, 7/7/05) and domestic terrorism (Oklahoma City, 4/19/95) is simply too grave to rest on what amounts to a reactive model. The goal has to be early detection and prevention.

While a change from the past, the new guideline's willingness to put forward the idea that there might be a need for intelligence collection and analysis outside of putting someone in jail is in some respects a throwback to how domestic intelligence efforts were thought about before the reforms of the 1970s. Precisely because subversion and terrorism typically involve tight-knit conspiracies, it was understood that leads often come from sources and activities that are nominally law-abiding and legal. It is not illegal, to take the now classic examples, for someone to take jet pilot training; it is not illegal to buy fertilizer; it is not illegal travel to and from Pakistan; it is not illegal to buy and use multiple cell phones. Nevertheless, when seen in connection with other actions, knowledge of each of these activities may be precisely the kind of information that the Bureau will need in order to head off a potential plot. Nor is this type of information to be hoarded by the FBI: It is also the Bureau's "responsibility to provide information as consistently and fully as possible to agencies with relevant responsiblities to protect the United States and its people from terrorism and other threats to national security." As the fact sheet accompanying the release of the guidelines bluntly notes: the guidelines "reflect the FBI's status as a full-fledged intelligence agency and member of the U.S. intelligence community."

The new guidelines' emphasis on intelligence collection and the seamless sharing of information within the Bureau and with other relevant law-enforcement and intelligence agencies will not lead, as the American Civil Liberties Union claims, to unfettered "political witch hunts" and "unwarranted investigations of political enemies and peace groups." Can there be abuses? Sure. Anyone familiar with power and bureaucracies in general and the Bureau's own sometimes sloppy internal workings in particular can reliably predict that investigations will take place that shouldn't. But we also now know what the costs are for devising a system in which there is absolutely no tolerance for such mistakes.

Moreover, 2008 is not 1968. Unlike then, there exists today a whole range of congressional and executive branch entities whose job it is to oversee the implementation of these guidelines. And, per the new guidelines, as the seriousness of an investigation rises, so too the need to sustain it with higher approvals and factual evidentiary support. The closer an individual comes to being charged with a crime and, hence, to seeing his or her life or liberty put at risk, the higher the bar is set for the investigation proceeding. In short, the idea that the Bureau could engage in a politically inspired witch hunt for any sustained period seems highly improbable.

When one compares the American domestic intelligence system with that of our two closest democratic allies in the fight against terrorism--Great Britain and France--the need to prevent attacks has driven all three in recent years to revise the how law-enforcement and intelligence communities work together. And, indeed, there are a number of aspects to the British and French approach--such as monitoring speech, electronic surveillance and preemptive detentions of suspects--that are more aggressive than anything being put forward here in the United States.

From this one shouldn't conclude that those are measures we, in turn, should adopt. But it does suggest that the new guidelines are well within the norms of other liberal democracies and consonant with the threat we all now face.

Gary Schmitt is a resident scholar at the American Enterprise Institute and co-author and editor with Reuel Marc Gerecht of the forthcoming AEI volume, Safety and Liberty: Comparing and Contrasting Democratic Approaches to Domestic Counterterrorism (2009).