The FBI’s reach

Citing a post-9/11 change in its mission, the FBI is planning to relax guidelines for the surveillance of groups and individuals who might -- and the key word is “might” -- harbor terrorists or spies. Because the actual wording hasn’t been released, it’s difficult to make a definitive judgment about whether the new guidelines for initial investigative “assessments” would revive the bad old days when the FBI engaged in massive and unjustified spying on Americans. But explanations from Bush administration officials are unsettling.

This debate doesn’t involve the most intrusive techniques open to the FBI, such as wiretapping (for which a court order is required) or even the warrantless subpoenas for records known as national security letters. Rather, the FBI wants more leeway to send agents or informants to public places and conduct “pretext interviews” -- FBI jargon for conversations in which an investigator asks questions without identifying himself as an agent. This first-stage surveillance doesn’t require reasonable suspicion that those under surveillance are terrorists; it could take place on the basis of speculation or rumor.

In media briefings and congressional testimony by FBI Director Robert S. Mueller III, the agency paradoxically has portrayed the proposed guidelines both as urgently required for national security reasons and as a routine harmonization of investigative procedures.

Present guidelines make it harder for agents to investigate possible terrorism plots than to probe potential criminal conspiracies, Mueller has claimed. He offered the example of an agent who suspects that drug dealing is happening at a bar and mingles with patrons in an attempt to acquire information. By contrast, he complained, an agent couldn’t conduct the same sort of reconnaissance in a tavern where fundraising for Hezbollah might be occurring.

The comparison is doubly flawed. First, unless the FBI were to conduct a covert dragnet of hundreds of bars, it probably wouldn’t focus on a particular tavern unless it had a tip. The same probably would be true of surveillance of a tavern where terrorist activities were suspected. Such surveillance is perfectly all right under existing rules. If retaining them means that the FBI couldn’t go on a fishing expedition to every bar with Arab American customers, so be it.

More important, under the rules proposed by the FBI, agents and informants could insinuate themselves into mosques and political organizations whose only “suspicious” behavior is to criticize U.S. policy toward Iraq or support the Palestinian cause. That treads dangerously close to violating free speech and religion rights guaranteed under the 1st Amendment.

Given the FBI’s sordid history of spying on and harassing innocent political activists, the burden is on the agency to demonstrate that it wouldn’t abuse its authority, as some agents did in circumventing legal requirements for national security letters. If it can’t convincingly make the case, the proposal should be abandoned.