The New COINTELPRO

What is COINTELPRO?

Between 1956 and 1971, the FBI engaged in a sustained and coordinated campaign to hinder constitutionally-protected activism and neutralize political dissent. The targets included both the well-known leaders and the ordinary folks in the civil rights and peace and justice movements. The truth about COINTLPRO came out during Congressional hearings in 1975. According to the Church committee, the FBI’s activities “would be intolerable in a democratic society even if all of the targets had been involved in violent activity, but COINTELPRO went far beyond that . . . the Bureau conducted a sophisticated vigilante operation aimed squarely at preventing the exercise of First Amendment rights....”

Unfortunately, the FBI has never changed its ways... and agents now have even more tools at their disposal to chill dissent.

  1. Government and Independent Reports on FBI Abuses of Power
  2. Manufactured Crimes: How the FBI Creates Terror Plots
  3. Stories of FBI Harassment
  4. Activists Respond
  5. The FBI Guidelines (or, Are They Really Allowed to Do That?)
  6. The Campaign to Rein in the FBI (Take Action Here!)

we're working to improve our website, much more content about the new Cointelpro is on its way....

Reports
August 23, 2011: Mother Jones expose on FBI informants
A fantastic investigative report in Mother Jones magazine (read the aritcles and subscribe!)

July 27, 2011: Brennan Center Releases FBI: Fact or Fiction?

April 2011: DOJ Reports Increase in Domestic Surveillance
According to a new Department of Justice report, domestic surveillance activity increased last year. A few numbers: the FBI sought information about over 14,000 U.S. citizens using over 24,000 National Security Letters. The Government made over 1,500 requests for electronic surveillance and physical searches to the FISA court, and none were denied. The report is only two pages long, and doesn’t provide any details about the ways the surveillance authorities were used (or abused). The Inspector General audits which shined the light on FBI abuses of NSLs and exigent letters and more are no longer required by law, so the last full accounting we have pertains to pre-2007 abuses (you can find those reports below).

Feb. 2011: FBI Agents: Abusing our Privacy... and Watching Porn?
Our allies at the Brennen Centor for Justice and the Electronic Frontier Foundation have just release devestating reports on FBI abuses of power and violations of our First and Fourth Amendment rights. In fact, the EFF report, Patterns of Misconduct estimates that agents violated internal guidelines, abused National Security Letters and used improper evidence to obtain subpoenas and committed a myriad of other violations about 40,000 times between 2001-2008. The Brennen Center report, Domestic Intelligence: New Powers, New Risks, recounts how the unchecked investigative powers of the FBI undermine counterterrorism and adversely impact First Amendment activity.

You can read a summary of those reports here... but you probably won't hear about it on the news. Instead, turn to CNN to find out what their investigative reporters turned up: CNN exclusive: FBI misconduct reveals sex, lies and videotape

Oct. 2010: Inspector General Report: FBI ACTED IMPROPERLY (AGAIN!)
Just days before the September 24 FBI raids, the Department of Justice Inspector General issued a new report on FBI spying on domestic political groups – finding that the FBI improperly opened investigations, and kept the investigations going for too long, put activists' names on terrorist watch lists for no justifiable reason, and improperly retained information about First Amendment activities. Read more here...

April 2010: Reps. Nadler, Sensenbrenner and Conyers ask the FBI to take steps to stop abuses.
The three members of the House Judiciary Committee wrote to FBI Director Mueller regarding abuses of National Security Letters uncovered by the Inspector General: "As you are aware, the IG report documents numerous improper actions by FBI personnel to obtain personal telephone record information on individuals between 2003 and 2006, including actions that "violated the requirements" of federal law. More than 700 times, such infomration was obtained about more than 2,000 phone numbers by so-called "exigent letters," some of which were signed by FBI agents even though they believed that factual information in the letters was false. For more than 3,500 phone numbers, the call information was extracted without even a letter, but instead by email, requests on a post-it note, or "sneak peaks" of telephone company records. In several cases, FBI personnel violated additional rules by seeking telephone records of news reporters, including one case where actual phone records were improperly obtained concerning Washington Post and New York Times reporters."

The letter demanded that the FBI fully implement the Inspector Generals recommendations, including make the rules on using National Security Letters clear and binding, and to hold agents who violate the rules accountable. Read the letter here.

Jan. 2010: Inspector General Report: FBI Abuse of National Security Letters
Apparently, all it takes is a post-it note from an FBI agent to convince AT&T, Verizon and MCI to turn over our telephone records. Really! The latest Inspector General Report on the FBI's abuse of National Security Letters (NSLs) reveals that the FBI illegally collected thousands of telephone records between 2002 and 2006. In some cases, FBI agents cited non-existent terrorism emergencies, but often enough, they simply asked-or scrawled a number on a post-it. In fact, one senior agent described how getting access to our phone records was as easy as "having an ATM in your living room." Read more here...

July, 2009: Report: 7000 Americans Subject to NSLs Last Year
The use of National Security Letters (NSLs) is on the rise again. According to a Justice Department report issued to Congress in May, the FBI used 24,744 NSLs to investigate over 7000 Americans last year. That's up from 16,804 NSLs issued in 2007. Read more here…

July 2009: FBI Watchlists
The DOJ Office of Inspector General has completed a new audit of the FBI's terrorist watch list. You won't be surprised to learn that they found the list to be full of errors. Not only are subjects of terrorism investigations left off the list, but in 72% of cases, the FBI neglected to remove names from the list in a timely manner. The audit concludes that there is a 35% error rate.

SET’EM UP, KNOCK’EM DOWN
The FBI seems to have hit upon a winning strategy to keep the war on terror alive and well-funded. Given the paucity of real terror attacks, the FBI has had to develop its own cottage industry – creating terror plots, than adeptly foiling them. Presto! The FBI can point to the plots as evidence of a continuing terror threat, and it can tout their success at nabbing the bad guys before anyone gets hurt. Win Win. It works equally well against anarchists, environmentalists and hapless young Muslim men. The plots unfold in the same pattern, time and time again. It behooves activists mobilizing for the Republican and Democratic National conventions to learn the pattern and devise strategies to protect each other from falling into the FBI trap, just as it behooves the Muslim community to review the scenario which plays out over and over in mosques across the country.

But it’s only a winning strategy if people keep falling for it. Educate yourself and others. DDF has a copy of Better This World, a riveting documentary about Bradley Crowder and David McKay and the FBI informer who pushed them to consider violence. Please contact us (202-529-4225) about borrowing the DVD to screen for your group or community.

ANATOMY OF AN FBI TERROR PLOT
Step 1: Target a community based on their religious or political beliefs: mosques, Occupy groups, animal rights, environmental and peace groups. It’s unclear if the FBI is infiltrating anti-abortion, neo-Nazi or sovereign groups, but recently exposed right-wing plots have not involved FBI informers or undercover agents.

Step 2: Find the right informer. Informer should be in some legal trouble of their own. (FBI guidelines were recently revised to allow the FBI to search through the garbage of people who are not suspected of any crime, for the purpose of allowing the FBI to find information it can use to coerce people into becoming informers.)

Step 3: Find the members on the fringe, the ones spouting the most extreme rhetoric, generally ignored by the rest of the community. These will usually be young men with troubled lives, often with psychological problems, often lonely and without steady employment.

Step 4: Befriend these losers and wannabees. Offer them a job, a meal or drugs, anything to encourage their dependency and strengthen the relationship.

Step 5: Talk politics or jihad. Belittle them for being unwilling to move from talk to action. Suggest some very excellent plots; these plots always involve explosives, not guns.

Step 6: Facilitate every necessary action: from planning to financing to procuring the needed materials. The young men will likely need rides, help with building the device, understanding how the explosives will work.

Step 7: Record most, but not all conversations. Recordings of targets talking about violence will add credibility to assertions that there were un-recorded discussions in which the targets expressed a willingness to move from talk to action, callous disregard for human life, or anything needed to make the case.

Step 8: Make sure the targets have everything they need to implement the plan. If the targets are unable to procure necessary items, or unable to assemble an explosive device, do it for them.

Step 9: Foil the Plot! FBI agents will sweep in to save the day. Even if the targets never throw a Molotov cocktail, plant a pipe bomb or otherwise complete the plan, they will be charged with terrorism, and they will be found guilty. They always are.

Step 9a: In the case of “self-proclaimed anarchists,” the arrest should be made just days before a major protest.

A short list of recent cases that followed this pattern:
Hemant Lakhani – sentenced to 47 years in prison in 2005 for smuggling a missile into the U.S. in a plot, developed and facilitated by the FBI.
Eric McDavid – environmental activist arrested in 2006 and serving 20 year sentence for planning to sabotage federal facilities in plot developed by FBI.
Liberty City Seven –accused of plotting to blow up the Sears tower in 2006, after two mistrials, five of the men were convicted, despite lack of physical evidence and the defendants complete inability to pull off such a plot without the leadership of two FBI informants.
Mohamed Osman Mohamud – a Somali-American college dropout awaiting trial for the 2010 plot to detonate a bomb at a Christmas tree lighting in Portland, Oregon. Plot suggested & facilitated by FBI
Bradley Crowder and David McKay –jailed for making Molotov cocktails at the 2008 Republican convention. Their story is told in Better This World (see below).
Cleveland 5 – arrested for participation in FBI-led plot to blow up a bridge on May Day 2012 (see article above).
NATO 3 –charged with material support of terrorism and conspiring to commit terrorist acts before the NATO protests in Chicago, May 2012

CLEVELAND 5
The Occupy movement burst out of winter hibernation on May Day with dozens of protests in cities across the country -- but not in Cleveland. The Cleveland May Day rally was cancelled after five “self-proclaimed anarchists” were arrested and charged with trying to blow up a bridge. The FBI staged a high profile press conference to announce the arrests, taking care to make clear the connection to Occupy, although the men had all broken off from the movement because they felt it was too passive. The story behind the plot has become clear since the men were arrested: there was an FBI informant who befriended the five and facilitated every step of the plot, including finding a person who could supply the necessary materials. The informant hired some of the men to do manual labor, and supplied them with beer and pot.

This may be one of the most successful of the FBI’s manufactured crimes. Not only was the Cleveland May Day rally cancelled, but two days after the arrests, the Occupy camp was shut down.

Cleveland 5 Update - August 2012
In an unfortunate turn of events, one of the five men arrested for allegedly planning to blow up a bridge in Cleveland has pled guilty and agreed to testify against his co-defendants. Anthony Hayne faced life in prison for his role in the plot, which bears all the hallmarks of an FBI-manufactured crime. The informant who encouraged and facilitated the plot connected with the men while infiltrating Occupy Cleveland. With the plea deal, Haynes faces 15 – 20 years in prison.

Cleveland 5 Update - September 2012
It was only a matter of time. After Anthony Haynes agreed to testify against them, the other members of the Clevelend 5 had little choice but to plead guilty also. So, on September 5, the FBI announced that Douglas Wright, Brandon Baxter, and Connor Stevens had pleaded guilty to conspiracy to use a weapon of mass destruction, attempted use of a weapon of mass destruction, and attempted use of an explosive device to destroy property used in interstate commerce. The one remaining defendant, Joshua Stafford is undergoing an examination and competency hearing. Rolling Stone magazine has a compelling article about the incident The Plot Against Occupy: How the government turned five stoner misfits into the world's most hapless terrorist cell. From the very beginning of this tale, it was clear that the defendants didn't have the resources, skills, or even the motivation to pull off a serious crime. But the FBI's agent provacateur followed the script outlined above and was able to create a terror plot out of almost nothing.

Another entrapment story
Occupy activists staged protests at ports across the country late last year. The protest in Houston was peaceful and arderly, although 20 people were arrested for blocking a street leading to the port. Activists block streets all the time, get charged with misdemeanors, and life goes on. But this time seven activists from around Texas were charged with felonies for locking themselves together using “sleeping dragons” (inserting their arms in PVC pipes so police can’t easily unlock them). They face two to ten years in jail for breaking an obscure law that makes it a felony to manufacture something for the sole purpose of committing a crime.

The activists didn’t know that the use of PVC pipes would mean significant jail time, but police, of course, did. It turns out that an Occupy Austin member named ‘Butch’ came up with the idea and the materials and “manufactured” the sleeping dragons… and it turns out ‘Butch’ was actually an Austin Police Department Narcotics Detective named Shannon G. Dowell. ‘Butch’ often expressed “frustration with debate and eagerness for more aggressive and provocative actions than our standard peaceful & nonviolent ones” in classic agent provocateur style.

But wait, it gets better! It was revealed during a hearing for one of the activists last month that at least two other APD officers had infiltrated and spied on Occupy Austin. APD Assistant Chief Sean Mannix defended the use of undercover cops in Orwellian truthspeak: “We are there to protect people who want to engage in protected speech,” he said.

 

Stories from the front:
FBI (and other police agencies) Harassment, Infiltration and Abuses

The FBI and Assassination Plots
The first batch of records detailing FBI surveillance of the Occupy movement have begun to trickle out, in response to various Freedom of Information Act requests by public interest groups and some media outlets. For the most part, the released documents tell the banal story of FBI agents monitoring First Amendment protected activity and alerting banks and other commercial entities that they may be the target of protests.

For example, the Center for Media and Democracy reports on one file from the FBI Jacksonville (FL), where the report’s author documents contact with a security employee at the nearby mall:

"On 11/10/2011, the writer telephonically contacted [redacted] The Oaks Mall, at telephone number [redacted]. The purpose of the contact was to advise her of the pending 'Occupy Wall Street' protest which was scheduled to shut-down various banks on 1/17/2011 [sic]," wrote the report's author.

"[Redacted name of mall security employee] advised that the initial Occupy Gainesville protest was a minor distraction for the mall and she would be ready for the pending protest. [Redacted] advised that she would contact writer if there were any anomalies."

A local paper later reported that about a dozen protesters appeared at the mall on Black Friday (November 25, not the 17th) and chanted slogans. They left peacefully when mall security asked them to.

As you can see, the FBI did a thorough job, warning the mall about a potential kerfuffle. But what if the FBI had uncovered a serious threat? And what if the threat were aimed not at a business, but at Occupy itself?

The files show that the Houston FBI did learn of plans for a very serious crime, but they followed a very different protocol. Upon learning that an individual (name redacted) was plotting to "kill local Occupy leaders via sniper fire," the FBI did nothing to protect or warn the potential victims.

Hmmm. This sounds familiar...

On March 4, 1964 Frank Wilkinson (our Executive Director at the time) was scheduled to speak at the home of an ACLU member in Los Angeles. The FBI was there. They were pretty much always there, whenever and wherever Frank spoke. For over thirty eight years the FBI followed Frank around, as many as eight agents a day, sometimes just watching, sometimes trying to disrupt his talks or undermine his organizing.

But on March 4 the FBI was aware that someone would attempt to assassinate Frank while he spoke that night. The FBI’s response? According to a heavily redacted two page FBI teletype marked “urgent,” about the assassination plot, the FBI “will stake out residence…” and “matter will be closely followed and pertinent developments promptly reported.” A follow-up memo from shortly after, initialed by Hoover, notes “that no attempt has been made on the life of Wilkinson and there have been no further developments in this matter.”

What the FBI did not do was warn Frank, or take any measures to protect him.

We know this because in 1983 our own FOIA lawsuit forced the FBI to release 132,000 pages of files on Frank and our organization (known at the time as the National Committee to Abolish HUAC), including the two page teletype about the evening of March 4.

But at least Frank and the Houston OWS activists came through alive. Not so Fred Hampton and Mark Clark.

It’s unclear from the released files whether the FBI collaborated in the assassination plots targeting Frank or OWS, but it is very clear that the FBI played an active role in the assassination of Fred Hampton. On December 4, 1969, Chicago police raided the home of Black Panther Party leader Fred Hampton, killing him and Mark Clark. Hampton had been a target of the FBI’s COINTELPRO campaign for two years, and it was an FBI informant, William O’Neal who infiltrated the BPP, provided the floor plan of Hampton’s apartment, and made sure Hampton was there to be murdered.

Grand Jury Resistance
Pacific North West
January 9, 2013: In November, we reported on a federal grand jury that was convened in Seattle to investigate vandalism at May Day protests.... two months before the alleged crime occurred. Two activists who are not accused of any crime have been sitting in jail for months for refusing to answer questions about their political activities and associates. A third person was jailed, but released, and just before Christmas, a fourth person was thrown into jail for refusing to answer questions. We have just learned that all three grand jury resisters have been moved to solitary confinement. We are urging supporters to call Sea-Tac prison at 206-870-5700 to demand an end to the use of solitary confinement.

Prosecutors are obviously frustrated with the success of the grand jury resistance campaign, and solidarity of the anarchist community in the North West. That frustration played out in a Portland courtroom early this month.

The scene was a bail hearing for Sergey Turzhanskiy, who has already spent a month in jail on suspicion of throwing a molotov cocktail at an (unoccupied) police car. The federal prosecutor argued that Sergey should not be released, saying he was a flight risk because the anarchist community has stood by him, by appearing in court and posting solidarity messages on anarchist websites. The prosecutor attempted to turn support for the defendant into an indication of risk, and a reason to deny bail!

Fortunately, the judge allowed Sergey to post bail, but ordered him to have no contact with any anarchists, even through second persons. In particular, he was prohibited from having any contact with members of the group that is organizing the grand jury resistance. Read more abourt Sergey here.

Midwest Grand Jury Resistance
It’s been two years since the raids and grand jury subpoenas targeting solidarity activists in the Midwest. No charges have been filed, and no more subpoenas have been served, but Assistant U.S. Attorney Barry Jonas has refused to return much of the original materials seized in 2010 raid on the home of Hatem Abudayyeh, citing the ongoing investigation. With the case still open, the 23 targeted activists cannot rest easy.

As we reported last month, the FBI and local police conducted coordinated raids on activist homes in Portland, Seattle and Olympia (seeking, among other things, ‘anarchist literature’). Several activists were subpoeanaed to appear before a grand jury on August 3. It’s unclear how many subpoenas were issued, but it is clear that at least two activists refused to testify. Dennison Williams, Leah-Lynn Plante held a press conference before the hearing, eloquently explaining:

This grand jury is a tool of political repression. It is attempting to turn individuals against each other by coercing those subpoenaed to testify against their communities. The secret nature of grand jury proceedings creates mistrust and can undermine solidarity. And imprisoning us takes us from our loved ones and our responsibilities.

After refusing to testify, they were told to report again on August 30. That hearing was postponed to a date yet to be revealed. See more here.

FOIA Reveals More FBI Spying (May, 2011)
The FBI spent three years keeping an eye on a Texas activist, creating a 440 page file about his activities (many were labeled "Domestic Terrorism"). The New York Times has a detailed story of the case -- which was uncovered when the activist, Scott Crow got his file through a FOIA request. Read the NYT article here. Find out how to file your FOIA request here.

FBI Raids Homes and offices of union, anti-war and solidarity activists (9/24/10)
On Friday, September 24, FBI agents fanned out across the Midwest to raid the homes of twenty activists. Most of the targeted activists lived in Chicago or Minneapolis and were active in anti-war, international solidarity and/or the trade union movement. The early morning raids involved gun-toting agents kicking in doors and spending hours rummaging through personal belongings. Agents carted away cell phones, computers and boxes of paperwork along with children’s artwork, posters and other odds and ends. The offices of the Anti War Committee in Minneapolis and the Arab American Action Network in Chicago were also searched.
Full Article here.
-- Action at FBI Headquarters, Washington DC (10/2/2010)
-- Update (11/1/10)

-- Update (6/2011)

Two years after the Raids
On September 24, 2010, the FBI and local police raided the homes and offices of 23 peace and solidarity activists in the Midwest. The seized computers, personal items, books and papers. The activists were subpoenaed to appear before a grand jury to testify about their political activities. They courageously refused to testify.

No charges have been filed against any of the activists – but the case remains open and one activist, Hatem Abudayyeh is still waiting for the items seized from him to be returned. Two years is long enough for the Chicago U.S. Attorney’s office to be prying into the first amendment activities of our friends, trying to find some way to charge them with ‘material support for terrorism.’

These activists have done nothing wrong, it’s time to officially close the investigation.

Actions were held around the country to mark the anniversary of the raids and to demand an end to the investigation. DDF helped organize a protest at FBI Headquarters in Washington D.C.

FBI Spies on Iowa Peace Activists (10/08/10)
The FBI spent nine months spying on Iowa peace activists. Hundreds of pages of documents were released showing that the FBI had surreptitiously photographed and videotaped activists staked out their homes and accessed their cell phone and motor vehicle records. The FBI even went through the garbage of at least one activist. There was no evidence to suggest that any criminal acts were planned. Read more here...

EMBARRASSING, YES. BOMBS? NO. (10/10)
The Pennsylvania Department of Homeland Security contracted with a private firm that tracked and infiltrated activist groups and developed Intelligence Bulletins alerting local law enforcement and private industry about upcoming protests and organizing meetings. Find links to the bulletins, and read more here...

Most Wanted Terrorist List (4/21/09)
On April 21, 2009, the FBI added Daniel Andreas San Diego, an animal rights activist, to their Most Wanted Terrorists List. An FBI news release pointed out that San Diego is the first "domestic terrorist" to be added to the list. He is accused of participating in the planting of two bombs in Northern California in 2003 that caused property damage but no human injuries. There have been no new developments in his case, so the timing of this announcement, in the middle of the uproar about the Rightwing Extremism report, has raised a few eyebrows in the animal rights movement as well as in the media.

Activists Respond
Activists have learned a lot since the days of COINTELPRO -- most importantly, the power of solidarity. Recent attempts to vilify and isolate particular groups of activists have been met with a united front, and a determination to stand together. In San Francisco and Portland, activists are being proactive:

San Francisco Campaign:
The FBI operates Joint Terrorism Task Forces in 103 cities across the country, partnering with local police under the guise of fighting terrorism. Unfortunately, the FBI often engages in undemocratic practices including forcing cities to sign secret Memorandums Of Understanding, spying on law-abiding citizens, and resisting civilian oversight. The San Francisco Board of Supervisors has passed an ordinance requiring local police to obey state and local privacy laws. DDF has asked the Mayor to sign the bill into law. Read the letter here.

Solidarity for Solidarity Activists (Feb. 2011)
Nine Palestine solidarity activists from Chicago, mostly Arab-Americans, were subpeonaed to appear before a grand jury investigating material support of terrorism on January 25, but they elected to stand in solidarity with the 14 activists who had previously been subpoenaed (see below); they have all refused to appear voluntarily. The US Attorney in the case, Patrick Fitzgerald, has not indicated whether he will force the activists to appear (giving them the choice of testifying, or serving time in jail); so the activists wait in limbo. In addition, although the FBI raided homes and carted away belongings over four months ago, no one has been indicted yet for any crime and only a few items have been returned to their owners.

Meanwhile, protests were held in over 50 cities on January 25 in support of the activists, demanding an end to the grand jury, and an end to FBI harassment. The Department of Justice clearly did not realize the hornet’s nest they were stepping on when the FBI raided seven homes last fall and delivered the first subpeonas. Since the raids, hundreds of protests, “know your rights” briefings and other educational events have been held, energizing thousands.

The FBI Raids: Activists Respond to Government Intrusion (part 1) from Thomas Nephew on Vimeo.

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October 2nd, 2010 - Washington D.C. - Glass Bead Collective in conjunction with Indymedia Minneapolis, Indymedia Pittsburgh and DARTT executed a direct action projection on the J Edgar Hoover Building/FBI Headquarters.

"We are shining a bright light on the F.B.I. and it's unlawful COINTELPRO style nationwide attack on the antiwar movement", said Vlad Teichberg of the Glassbead Collective. He continued "The latest Grand Juries in Chicago and New York have targeted the homes and families of solidarity activists. These latest attacks are effectively criminalizing the support of global social movements and is a blatant attempt to take away the freedom of association from American citizens."

"These F.B.I. raids are a recent reminder of the constant attacks our communities face every day" said Teichberg. He continued, "we wanted to bring truth to power by projecting images of the victims of F.B.I. attacks".

These recent raids only emphasize the importance of organizing for equal justice for all: people, animals, and the earth. This action was in honor and solidarity with political prisoners around the world.

FBI Domestic Intelligence Guidelines

Attorney General's Guidelines
At the very end of the Bush Administration, Attorney General Mukasey adopted new guidelines, ignoring protests from civil liberties groups and some members of Congress. These new guidelines vastly expanded the investigatory authorities available to agents without any predicating facts or allegations, by creating an Assessment tier of investigative activity. The 2008 Guidelines authorize a number of intrusive investigative techniques during Assessments, including pretext interviews, interviewing members of the public, recruiting and tasking informants, physical surveillance not requiring a court order, grand jury subpoenas for telephone or electronic mail subscriber information, and more.

The Guidelines give FBI agents broad individual discretion to investigate Americans using these techniques without reasonable suspicion of wrongdoing, or supervisory approval or oversight. They also allow race or religion to be used as a factor, among others, justifying scrutiny. Given the pressure on agents to identify unknown threats to national security before they emerge, such unchecked power invites abuse, including inappropriate profiling according to race, religion or national origin. Read the Guidelines here.

This area is ripe for congressional oversight and long overdue for legislative parameters. At a recent oversight hearing before the Senate Judiciary Committe, FBI Director Mueller testified that religious groups are protected from profiling because FBI agents cannot begin an investigation without reasonable suspicion of wrongdoing. WRONG! The guidelines allow FBI agents to investigate anyone without any suspicion of wrongdoing whatsoever. After the hearing, Mueller sent a note to the committee saying he had ‘misspoken’. Duh

At a minimum, Congress should obtain and examine aggregate data about the number and type of FBI assessments, the number of individuals who have been targeted with these assessments and whether information gathered in the assessment led to the opening of predicated investigations. Demographic information about the targets of these investigations should also be evaluated in order to establish the empirical extent of profiling according to race, religion and national origin.

In July 2010, DDF and others sent a letter to the Senate Judiciary Committee asking for important reforms to the way the FBI operates.

Domestic Investigations and Operations Guide
We learned in June that the FBI has drafted new rules for its agents, giving them significant new powers. Civil liberties advocates had been lobbying the FBI to tighten its rules to safeguard privacy and Constitutional rights. Unfortunately, the FBI went the wrong way. The timing sets off alarms, as these changes come when President Obama is asking Congress to allow FBI Director Mueller to serve beyond the limit of his term.

July 27, 2011: Civil Liberties Groups to Congress: PAY ATTENTION!
In a letter to the Senate Judiciary Committee, civil rights advocates called on Congress to investigate the reported changes to the FBI’s guidelines for domestic investigations.

New Changes to FBI Guidelines Call into Question Proposal to Extend FBI Director’s Term
Deeplink by Jennifer Lynch (Electronic Frontier Foundation)
This month, the New York Times reported that the FBI has updated its internal domestic investigations guidelines to provide its agents with “significant new powers.” According to the Times, this update will provide agents with “more leeway to search databases, go through household trash or use surveillance teams to scrutinize the lives of people who have attracted their attention.” These changes are especially troubling as they come on the heels of the Obama Administration’s efforts to extend FBI Director Robert Mueller’s term and on recent reports that the Bureau has once again engaged in controversial surveillance activities directed at “prominent peace activists and politically-active labor organizers.”

The FBI’s Domestic Investigations and Operations Guide (also known as the “DIOG”) is a collection of procedures, standards, approval levels, and explanations, created by the FBI, that implements current Attorney General’s Guidelines as they apply to Bureau investigations.

The Bureau most recently updated the DIOG in 2008, after then-Attorney General Mukasey introduced new AG Guidelines that reduced restrictions on certain surveillance protocols by allowing agents to open investigative “assessments” on Americans and American organizations. As we wrote in a blog post at the time, these assessments, which are still in use today, “allow the use of intrusive techniques to surreptitiously collect information on people suspected of no wrongdoing and no connection with any foreign entity.” Even though the DIOG impacts all domestic investigations, the FBI failed to release the 2008 DIOG publicly until EFF filed a FOIA request and later a lawsuit in 2009.

The recent announcement that FBI has once again updated the DIOG to further relax restrictions on invasive investigatory techniques follows the Obama Administration’s push to extend the 10-year term of the FBI Director, which is set to expire this year. The convergence of these two events—the amendment to the DIOG and the proposed extension of the FBI Director’s term—is important. Both were put in place 35 years ago in direct response to the extensive FBI abuses that occurred in the 60s and 70s during the nearly 50-year reign of the FBI’s first director, J. Edgar Hoover.

In the last few years, the DOJ Inspector General found in several reports (see above) that the FBI engaged in significant abuses during Director Mueller’s term as well, including investigating domestic advocacy organizations and engaging in illegal electronic surveillance practices that resulted in what the DOJ IG described as "an egregious breakdown" in the FBI's responsibility to comply with the Electronic Communications Privacy Act. Last fall, the IG also investigated and uncovered “significant abuses and cheating” on an exam that all FBI agents, analysts, and technicians must take on implementing the DIOG, (See Investigation of Allegations of Cheating on the FBI’s Domestic Investigations and Operations Guide (DIOG) Exam, September 2010 (pdf) at p. 30), suggesting the Bureau does not take seriously the training of its staff on these important rules.

None of these events inspire confidence that the Bureau is doing as much as it should to protect our civil liberties. Although Valerie Caproni, the FBI’s general counsel, has described the latest changes to the DIOG as “more like fine-tuning than major changes,” the changes would allow much broader FBI surveillance of our private and protected activities with much less oversight. In one of the most problematic changes, agents will now be allowed to search for information about a person in a commercial or law enforcement database without any firm evidence for suspecting criminal or terrorist activity and without making any record of their search. Not requiring agents to put information uncovered from these searches into F.B.I. files unless they later opened an assessment will undoubtedly make it much harder to detect and prevent agents from using these databases for non-intelligence related purposes and may in fact overstep the AG Guidelines by creating a new “pre-assessment” stage.

The new Guidelines include additional important changes. For example, the Times notes “the new manual says an agent or an informant may surreptitiously attend up to five meetings” of any group, including those organized for political purposes, before the agent or informant is subject to any rules that would restrict such speech-suppressing activities. The FBI used these tactics recently to infiltrate activists’ circles in the Midwest and Arizona by posing as a lesbian mother to befriend lesbians with small children and by infiltrating political meetings to befriend anarchists. Further, the new Guidelines will relax restrictions on administering lie-detector tests and searching people’s trash and will also allow agents to use secret surveillance squads repeatedly to track targets..

Although the Times provides some information on the new Guidelines, the FBI has not yet made the 2011 DIOG available to the public. This was the same story three years ago, before EFF filed its FOIA lawsuit. At that time the Bureau repeatedly stated its interest in public and lawmaker comments on the 2008 updates, despite the fact that it never made a complete copy available to the public (even the 2008 version released to EFF (available here) was heavily redacted). The Bureau also stated at the time that it “had very substantial outreach to privacy and civil liberties groups”—as if to imply that consulting with these groups ensured the DIOG would protect Americans’ privacy and civil liberties and thus these groups had added their stamp of approval.

We hope the FBI is not planning to repeat this charade in 2011. On Friday, Senators Leahy and Grassley sent a letter to FBI Director Robert Mueller, urging the FBI to provide an updated briefing to the Senate Judiciary Committee on proposed changes to the DIOG. Apparently, the Committee has not been briefed on the revisions since sometime last year.

The Senate Judiciary Committee approved an extension to Mueller’s term on June 16, and Congress will vote on it some time before August 3. It is crucial that Congress and the public at large have access to the new DIOG before that time so that Americans can fully analyze and debate the implications of the unprecedented (and perhaps unconstitutional) proposal to extend the FBI Director’s term.

From the Electronic Frontier Foundation Deeplinks Blog

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