The Bush administration vastly expanded the FBI’s power by amending the Attorney General’s Guidelines governing FBI investigative authorities four times over 8 years. Each change lowered the evidentiary threshold necessary for the FBI to initiate investigations, increasing the risk that FBI agents would improperly target people for scrutiny based on their First Amendment activities, as they had in the past.

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1. Ashcroft Attorney General’s Guidelines

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Attorney General John Ashcroft first amended the guidelines for general crimes, racketeering, and terrorism investigations in 2002, giving the FBI more flexibility to conduct investigations based on mere allegations. The Ashcroft guidelines:

• Authorized the “prompt and extremely limited checking out of initial leads” upon receipt of any information suggesting the possibility of criminal activity;

• Prohibited investigations based solely on First Amendment activities, but authorized inquiries based on statements advocating criminal activity unless “there is no prospect of harm;”

• Expanded the investigative techniques the FBI could use during preliminary inquiries, barring only mail openings and non-consensual electronic surveillance; and

• Increased the time limits for preliminary inquiries to 180 days, with the possibility of two or more 90-day extensions.

These changes meant the FBI could conduct intrusive investigations of people for an entire year, including infiltration by informants, without facts establishing a reasonable indication that anyone was breaking the law. The Ashcroft guidelines also allowed FBI agents to conduct “general topical research” online and “visit any place and attend any event that is open to the public, on the same terms and conditions as members of the public generally.”

The FBI later claimed this authority did not require the FBI agents attending public meetings to identify themselves as government officials. Attempting to assuage concerns that the FBI would misuse this expanded authority by targeting First Amendment-protected activity, FBI Director Robert Mueller said in 2002 that the FBI had no plans to infiltrate mosques. Nonetheless, in the ensuing years there was a sharp increase in the FBI's controversial use of informants as agents provocateur in mosques and other Muslim community organizations. In 2009, Director Mueller defended these tactics and said he did not expect the Obama administration to require any change in FBI policies: “I would not expect that we would in any way take our foot off the pedal of addressing counterterrorism.”

After 9/11, the FBI also increased the number of FBI agents assigned to terrorism matters and rapidly expanded its network of Joint Terrorism Task Forces, in which other federal, state, and local agencies provide additional human resources for terrorism investigations. Today it has 103 Task Forces across the country, employing approximately 4,400 members of federal, state, and local law enforcement; the intelligence community; and the military.

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2. Evidence of FBI Spying on Political Activists

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Concerned that the combination of expanded authorities and additional resources devoted to terrorism investigations would result in renewed political spying, ACLU affiliates around the country filed FOIA requests in 2004, 2005, and 2006 seeking FBI surveillance records regarding dozens of political advocacy and religious organizations and individual activists. The FBI response revealed that FBI terrorism investigators from a variety of different field offices had collected information about peaceful political activity of environmental activists, peace advocates, and faith-based groups that had nothing to do with terrorism.

These inappropriate FBI investigations targeted prominent advocacy organizations such as the School of the America's Watch, Greenpeace, People for the Ethical Treatment of Animals, the Rocky Mountain Peace and Justice Center in Colorado, and the Thomas Merton Center for Peace and Justice in Pennsylvania, among many others. In a document that reads as if it were written during the Hoover era, an FBI agent describes the peace group Catholic Worker as having “semi-communistic ideology.” Environmental activist and self-described anarchist Scott Crow later submitted his own Privacy Act request to the FBI and received 440 pages of materials documenting FBI surveillance directed against him from 2001 through 2008. The FBI reports exposed the agents’ disdain for the activists they investigated, with one suggesting that nonviolent direct action was an “oxymoron” and another stating that attendees at an activist camp “dressed like hippies” and “smelled of bad odor.”

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3. 2010 Inspector General Report Confirms Spying and Lying

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In response to a 2006 congressional request, the Justice Department Inspector General audited a small sample (six) of the multiple FBI investigations of domestic advocacy groups uncovered by the ACLU. In a report that wasn’t released until 2010, the Inspector General confirmed the FBI abused its authority in these cases and at times improperly collected and retained information detailing the activists’ First Amendment activities.

The Inspector General concluded that the FBI’s predicate for opening preliminary investigations against these advocacy groups and individuals was “factually weak.” In some cases, it was based on unpersuasive, “speculative, after-the-fact rationalizations,” because the files lacked the required documentation of the “information or allegation” to justify opening the case. But because the guidelines require such a low “information or allegation” standard for opening preliminary investigations, the Inspector General concluded that opening many of these fruitless and abusive FBI investigations did not initially violate Justice Department policy. Still, the Inspector General did find that the FBI violated the guidelines in some cases by:

• Extending some of these investigations “without adequate basis;”
• Initiating more intrusive full investigations when the facts only warranted preliminary investigations; and
• Retaining information about the groups’ First Amendment activities in FBI files, in violation of the Privacy Act.

Controversially, and despite the lack of proper documentation, the Inspector General determined that these investigations were not opened based “solely” on the groups’ political activities or beliefs, but rather upon the FBI agents’ speculation that the groups or individuals might commit a federal crime in the future. This conclusion appeared argumentative, however, because the Inspector General did not explain why the agents opened cases on these particular potential future criminals rather than any other potential future criminals, or whether political viewpoint was a significant factor in these decisions. The report conceded that the documents “gave the impression that the FBI’s Pittsburgh Field Division was focused on the [Thomas] Merton Center as a result of its anti-war views.” at such baseless investigations of political activists were found to fall within Justice Department policy clearly reveals that the FBI guidelines’ prohibition against investigations based “solely” on First Amendment activity is insufficient to protect First Amendment rights.

Other abuses were identified. In one case, an FBI agent tasked an informant to infiltrate a peace group and to collect details of its First Amendment activities, just so the agent could demonstrate participation in the FBI’s informant program. The Inspector General also criticized the FBI for treating non-violence civil disobedience as “acts of terrorism,” which had real consequences for the activists, as FBI policy mandates that subjects of terrorism investigations be placed on terrorist watch lists.”68 As a result, the FBI tracked their travel and advocacy activities as well as their interactions with local law enforcement. One activist the FBI investigated was handcuffed and detained during a traffic stop, which the officer justified by alleging the activist was “affiliated with a terrorist organization.”

Finally, the Inspector General found that after the ACLU released the records, FBI officials made false and misleading statements to Congress and the American public in an attempt to blunt the resulting criticism. The FBI Executive Secretariat Office responded to a citizen’s complaint about the inappropriate investigation of Catholic Worker by stating that the FBI only seeks to prevent violence and does not target “lawful civil disobedience,” even though the FBI files on Catholic Worker did document civil disobedience and made no reference to violence or terrorism. The false statements to Congress are discussed further below.

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4. Mukasey Attorney General’s Guidelines

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In December 2008, during the final weeks of the Bush administration, Attorney General Michael Mukasey issued revised Attorney General’s Guidelines that authorized the FBI to conduct a new type of investigation, called an “assessment,” which does not require FBI agents to establish any factual predicate before initiating investigations, so long as they claim their purpose is to prevent crime or terrorism or protect national security. The Mukasey guidelines allow the FBI to utilize a number of intrusive investigative techniques during assessments, including:

• Physical surveillance;
• Retrieving data from commercial databases;
• Recruiting and tasking informants to attend meetings under false pretenses;
• Engaging in “pretext” interviews in which FBI agents misrepresent their identities in order to elicit information; and
• Using grand jury subpoenas to collect subscriber information from telecommunications companies.

Under the Mukasey guidelines, “assessments” can even be conducted against an individual simply to determine if he or she would make a suitable FBI informant. Nothing in the new guidelines protects entirely innocent Americans from being thoroughly investigated by the FBI under this assessment authority. The new guidelines also explicitly authorize the surveillance and infiltration of peaceful advocacy groups in advance of demonstrations, and they do not clearly prohibit using race, religion, or national origin as factors in initiating assessments, so long as investigations are not based “solely” on such factors. A 2009 FBI Counterterrorism Division “Baseline Collection Plan” obtained by the ACLU reveals the broad scope of information the FBI gathers during assessments:

• Identifying information (date of birth, social security number, driver’s license and passport number, etc.);
• Telephone and emailaddresses;
• Current and previous addresses;
• Current employer and job title;
• Recent travel history;
• Whether the person lives with other adults, possesses special licenses or permits, or has received specialized training; and
• Whether the person has purchased firearms or explosives.

The FBI claims the authority to retain all the personal information it collects during these investigations indefinitely, even if the people being assessed are found to be innocent. The New York Times reported that the FBI opened 82,325 assessments on individuals and groups from March 2009 to March 2011, yet only 3,315 of these assessments developed information sufficient to justify opening preliminary or full investigations. That so few assessments discovered any information or allegation that would meet even the low threshold for opening a preliminary investigation makes clear that the FBI investigated tens of thousands of entirely innocent people under its assessment authority.
Moreover, at the conclusion of an assessment or investigation, after “all significant intelligence has been collected, and/or the threat is otherwise resolved,” the FBI’s Baseline Collection Plan authorizes agents to implement a so called “disruption strategy,” which permits FBI agents to continue using investigative techniques “including arrests, interviews, or source-directed operations to effectively disrupt [a] subject’s activities.”

This resurrection of reviled Hoover-era terminology is troubling, particularly because FBI counterterrorism training manuals recently obtained by the ACLU indicate the FBI is once again improperly characterizing First Amendment-protected activities as indicators of dangerousness.