FBI targets protest groups

J. Bradley Jansen
Published 6/26/2002
The Washington Times

Nearly all of us know that law enforcement, and specifically the intelligence
community, failed in their mission to prevent the tragedies of September 11 last
year. Congress and the attorney general were right to respond quickly to that
failure. The question remains if the changes we are making are the right ones.
Conservatives must be prudent in that whatever tools we give the administration
now may be used against us in the future.

When Attorney General John Ashcroft announced changes to the Guidelines on General
Crimes, Racketeering Enterprise and Terrorism Enterprise Investigations ("Domestic
Guidelines") for the Federal Bureau of Investigation on May 30, he lauded its 94-
year-old history as "the tireless protector of civil rights and civil liberties
for all Americans." That history may have come to an end.

The foreign intelligence guidelines, which cover investigations of international

terrorist organizations such as Osama bin Laden's al Qaeda (operating here or
abroad), are classified but reportedly have not changed. The Domestic Guidelines
govern investigations of domestic groups operating entirely within the United
States. Had the Domestic Guidelines changes been in place previously, they would
have done nothing to prevent last year's airline highjackings.

The general principles of the old Reagan-era Domestic Guidelines for FBI
investigations began as follows: "Preliminary inquiries and investigations
governed by these guidelines are conducted for the purpose of preventing,
detecting, or prosecuting violations of federal law. They shall be conducted with
as little intrusion into the privacy of individuals as the needs of the situation
permit."

The new guidelines struck the second sentence, replacing it with "The FBI shall
fully utilize the methods authorized by these guidelines to maximize the
realization of these objectives." Translation of the new attitude: Forget about
concerns of privacy, and go run roughshod over civil rights and civil liberties of
American citizens.

Aside from possible problems related to the specifics of the guidelines changes,
the greatest problem appears to be that the attorney general is being mislead. The
sooner he can get trusted advisers in place the better. Enough already with the
red herrings about FBI agents not being allowed to surf the Internet and the shell
game of changing Domestic Guidelines when the FBI failed under the foreign ones.

While ostensibly aimed at preventing terrorism, the Domestic Guidelines broadly

define "terrorist activity" so that the term appears to cover the use of force to
block an abortion mill, thus triggering authority to spy on pro-life demonstrators
without evidence of crime. Under the Domestic Guidelines, a terrorist enterprise
is a group of at least two persons engaged in an enterprise for the purpose of
"furthering political or social goals wholly or in part through activities that
involve force or violence and a violation of federal criminal law." An abortion
protest that includes blocking an abortion clinic in violation of the federal
Freedom of Access to Clinic Entrances Act (FACE) of 1994 appears to fall within
this definition.

The new Domestic Guidelines differ dramatically from the previous ones in place
for more than two decades in that any "public" meeting can be the subject of
surveillance without any evidence of crime. FBI undercover agents would have the
authority to spy at any public meetings of abortion protesters "for the purpose of
detecting or preventing terrorist activities" even if the FBI had no evidence
whatsoever that a crime would actually be discussed.
Moreover, the undercover FBI agent could retain any information that he thinks
"relates" to any potential criminal activity, not just to terrorism.

Information gathering about who attended and what they said, combined with the new
data-mining rules, engender the kind of spying without cause that can chill
legitimate exercise of First Amendment freedoms. A better focus would be on
analysis and verifying the information used rather than profiling people using
dubious data, as the old guidelines permitted.

Amazingly, Mr. Ashcroft cites the case of National Organization for Women vs.
Scheidler (1994) to justify changing the Domestic Guidelines so that they do not
require that these terrorism enterprise investigations be limited to enterprises
that have a profit as opposed to a social goal. In that case, the Supreme Court
determined that the federal racketeering statute could be used against pro-life
demonstrators even though they were motivated by religious and political goals, as
opposed to profit.

Should we really target pro-life demonstrators under the new FBI Domestic
Guidelines with the extreme measures under the USA Patriot Act aimed at Osama bin
Laden and company? What might a future Attorney General Hillary Clinton do under
the new guidelines?

J. Bradley Jansen is deputy director of the Center for Technology Policy at the
Free Congress Foundation.