Relax, We're Only Assessing You

Jacob Sullum | August 21, 2008

Sen. Russell Feingold (D-Wis.) and several of his colleagues are worried about new guidelines for FBI investigations that Attorney General Michael Mukasey is on the verge of approving. Yesterday, in a letter to Mukasey, they raised several concerns:

The guidelines permit the FBI to use a variety of intrusive investigative techniques to conduct "assessments" of possible criminal activity, national security threats or foreign intelligence collection—without any initial factual predication. We are concerned about the extent to which such authority might, for example, permit the FBI to conduct long-term physical surveillance of an innocent American citizen; interview such an individual's neighbors and professional colleagues, including based on a "pretext" or misrepresentation; recruit human sources to provide information on that individual; or conduct commercial database searches on that individual—all without any basis for suspicion....We are particularly concerned that the draft guidelines might permit an innocent American to be subjected to such intrusive surveillance based in part on race, ethnicity, national origin, religion, or on protected First Amendment activities.

The guidelines permit the collection of foreign intelligence information inside the United States, through both "assessments" and predicated "full investigations," with little explicit protection for information gathered about United States persons. The definition of "foreign intelligence" is broad, and covers any information relating to the activities of a foreign government, organization or person. We are concerned about the extent to which the FBI may be permitted to gather or use information about Americans under the rubric of foreign intelligence gathering when there is no suspicion of a crime, threat to national security, or any other wrongdoing.

The Bush administration has argued that FBI agents should not need grounds for suspicion to use commonly available investigative tools such as Web searches. While there is something to be said for that argument, one could also argue that law enforcement officials should be more restrained in their use of such tools than ordinary citizens, since the consequences of their curiosity have the potential to be much more serious. In any case, "long-term physical surveillance" is not something ordinary citizens can do without risking arrest for trespassing, stalking, or harassment. Likewise, FBI interviews, even when officially consensual, have a coercive aspect to them that is absent from, say, a chat with a neighbor. And if "commercial database searches" include examining sensitive information such as credit reports, which ordinary citizens can legally obtain only if they are engaging in or considering certain kinds of transactions with the subjects of the reports, that is another example of special government powers that should not be exercised willy-nilly.

This story is a good excuse to quote Feingold's comments at a June 25 hearing about border searches of laptop computers, where he castigated the Bush administration for withholding information about the frequency of the practice:

Once again, this administration has demonstrated its perverse belief that it is entitled to keep anything and everything secret from the public it serves and their elected representatives, while Americans are not allowed to keep any secrets from their government. That's exactly backwards. In a country founded on principles of liberty and democracy, the personal information of law-abiding Americans is none of the government's business, but the policies of the government are very much the business of Congress and the American people.

[Thanks to Tricky Vic for the tip.]

Comments

SIV|8.21.08 @ 12:19PM|#

Senator Russ Feingold(D-Wis.) supports the Federal government investigating and prosecuting otherwise law-abiding citizens for engaging in political speech. The legislation even has his name on it.

|8.21.08 @ 12:29PM|#

Senator Russ Feingold(D-Wis.) supports the Federal government investigating and prosecuting otherwise law-abiding citizens for engaging in political speech. The legislation even has his name on it.

Are you forgetting his sidekick?

If you were to draw up a perfect composite President, Feingold would be the Senatorial choice for civil liberties. The fact that he voted against the Patriot Act overcomes his weakness on McCain-Feingold and dubious political advertising.

Elemenope|8.21.08 @ 12:44PM|#

SIV, making the perfect the enemy of the good since...how old are you, anyway?

FWIW, an "assessment" is an investigation by any other name, and as such must comply with 4th amendment and other constitutional protections. Feingold is right about this one, and as usual is out in front.

And I have to say, holy shit, my junior senator the former Rhode Island A.G. is a signatory, and so I'm forced to give him some serious points.

|8.21.08 @ 12:49PM|#

We are concerned about the extent to which the FBI may be permitted to gather or use information about Americans under the rubric of foreign intelligence gathering when there is no suspicion of a crime, threat to national security, or any other wrongdoing.

The government would never engage in fishing expeditions. Don't worry, they're here to help.

thoreau|8.21.08 @ 1:10PM|#

In academia, assessment means....um, actually, we're not sure what it means. Every administrator, pedagogy researcher, and accreditation consultant has a different definition. It seems to involve a lot of paperwork, however.

Dave W.|8.21.08 @ 1:35PM|#

It means you give the person constructive criticism, whether they like it or not, to shape and mold them into the best T. (for teacher) they can be. But you knew that.

|8.21.08 @ 1:49PM|#

We are not investigating you, we are merely assessing.

Little Brother is Bush's legacy. I think the historians should reflect that.

|8.21.08 @ 2:55PM|#

When you make an assessment you make asses out of men. And st.

|8.21.08 @ 9:48PM|#

You know, I find myself growing increasingly nostalgic for the days when reports of this Administration's mendacity and contempt for civil liberties could shock and outrage me - anymore I just find it depressing.

|8.22.08 @ 6:33PM|#

http://lr-n-r.org/InstitutionalizedTyranny.html

One of the more important statutory restrictions which secures and reinforces Congress' authority is at 4 U.S.C. §§ 71 & 72. The first of these sections establishes territory within the current borders of the District of Columbia as the seat of government for the United States; the second prohibits any government department from operating outside the District of Columbia save as Congress authorizes by statute:
Sec. 72. Public offices; at seat of Government
All offices attached to the seat of government shall be exercised in the District of Columbia, and not elsewhere, except as otherwise expressly provided by law.
In this context, we see what should be lawful constraint on the Federal Bureau of Investigation by examining origins and statutory authority of the FBI: Read notes following 28 U.S.C. § 531 to find that Congress didn't create the Federal Bureau of Investigation. The FBI simply appeared in the Department of Justice -- it is an administratively-created entity, so cannot exceed authority originally vested in the Attorney General or the Department of Justice. Statutory authority vested in the FBI and the Attorney General is found at 28 U.S.C. § 535:
The Attorney General and the Federal Bureau of Investigation may investigate any violation of title 18 involving Government officers and employees...
Administrative creation of the FBI is confirmed in The United States Government Manual, 1996/97 edition, page 349:
"The Federal Bureau of Investigation was established in 1908 by the Attorney General, who directed that Department of Justice investigations be handled by its own staff..."
What authority does the FBI have to investigate and otherwise bother people in the several States other than Government officers and employees? De facto authority -- "I can, therefore I will." The FBI has no statutory authority to disturb anyone in the Union of several States other than government officers and employees. Therefore, 4 U.S.C. § 72, in addition to constitutional limitations, constrains FBI investigations in the Union of several States to subject matter prescribed by statute, that being 28 U.S.C. § 535, cited above.