FBI to defend 'intrusive investigative techniques'

The new guidelines proposed by the Bush administration would give the agency broader powers to open and investigate national security cases, even in the face of only vague threats.

FBI agents in riot gear head towards the Mexican consulate in Los Angeles after a hostage drama in 2004.

WASHINGTON // The director of the Federal Bureau of Investigation is to testify before the US Congress this week about new guidelines proposed by the Bush administration that would give the agency broader powers to open and investigate national security cases, even in the face of only vague threats.

Robert S Mueller III will appear before the House and Senate judiciary committees today and tomorrow where he is expected to face sharp questioning from Democrats, who have said the new guidelines allow for the use of "intrusive investigative techniques" without sufficient grounds for suspicion. Civil liberties groups - including the American-Arab Anti-Discrimination Committee, the American Civil Liberties Union and the Arab American Institute - say the guidelines could also allow the FBI to use a person's race or ethnic background alone as cause for launching an investigation.

"The FBI could literally start an investigation against anyone without any factual basis," said Michael German, a former FBI agent who is now policy counsel on national security issues for the ACLU in Washington. The proposed guidelines are part of a broader move by the Bush administration since September 11 to expand the powers of the executive branch and law enforcement in the name of fighting terrorism at home. The administration has approved domestic wiretapping without warrants and other methods, saying it needs them to better protect US citizens. But in so doing, the president has come under fire from Democrats, liberties groups and others for instituting what they say are policies that allow government to overstep its authority and infringe on individuals' rights.

The proposed guidelines, known as the attorney general guidelines, would give FBI agents the ability to use public surveillance, employ informants and conduct so-called "pretext" interviews, in which they could ask questions and gather information without identifying themselves as being from the FBI. The agency may now use those tools in domestic terrorism cases only when there is specific evidence of a threat.

"What [the guidelines] appear to allow for is opening the floodgates to law enforcement intrusion into private affairs of citizens and those legally in the United States without any legitimate pretext," said James Zogby, president of the American Arab Institute, who also writes a column for this newspaper. "No one has shown how it would make us safer. Instead, what it will do is break down the trust that is necessary between individuals and government that makes a free society secure."

Justice department officials have said the guidelines, a condensing of three sets of guidelines into one, will allow the FBI to be more effective at collecting intelligence on national security and criminal threats. Officials said race would not be used as a single factor in launching an inquiry, but did not rule out its use. "It is simply not responsible to say that race may never be taken into account when conducting an investigation," Brian Roehrkasse, a Justice Department spokesman, said in a statement. "The reality is that a number of criminal and terror groups have very strong ethnic associations," he said, citing the IRA's Irish membership and the fact that Hizbollah members are primarily Lebanese.

In the 1970s, Congress uncovered widespread domestic spying by the FBI, which had created hundreds of thousands of files on so-called "subversives". The agency used wiretaps and other surveillance to spy on Martin Luther King Jr - and even his wife - and members of civil rights groups. In an effort to prevent such abuses, the agency in 1976 instituted guidelines regulating its domestic and foreign intelligence-gathering activities. The Bush administration has rewritten those guidelines in recent years to give the agency expanded powers.

Four Democrats on the Senate judiciary committee - Richard Durbin, Russell Feingold, Edward Kennedy and Sheldon Whitehouse - sent a letter to Michael Mukasey, the US attorney general, last month asking that he refrain from finalising the new guidelines, which have not been publicly released in full, until Congress had a chance to weigh in. "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," the letter said.

"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." Other groups that have raised concerns are the Center for Democracy and Technology, the Mexican American Legal Defense and Education Fund and Muslim Advocates. The new guidelines are scheduled to go into effect on Oct 1.