In fact, as long as somebody's compiling a list of unilateral, last minute Bush administration misdeeds that need immediate undoing, allow me to humbly suggest that the FBI's under-the-radar guidelines on snitching and political snooping issued in October are among those that deserve immediate repeal. According to the New York Times, the FBI considered these new rules "one of the final steps by the Bush administration to extend its far-reaching counterterrorism policies into the next administration and beyond."
The most offensive aspect of the new rules as far as I'm concerned was their expansion of FBI investigative tools where there is no reason to suspect criminal wrongdoing, in what's called an "assessment" instead of a full-blown investigation. As described by the Center for Investigative Reporting's Muckraker blog:
In other words, the FBI can use its full investigative weight to delve into people's lives - specifically but not exclusively because of political and religious affiliations - whether or not the FBI thinks they might have committed or be planning to commit a crime.
The bureau's definition of "assessment" is what seems to startle some observers the most. An assessment is different than a full-blown criminal or national security investigation, the latter of which requires reasonable suspicion, or "factual predication" as the bureau calls it, that a crime has occurred.
Groups or individuals targeted for an assessment may simply resemble to an agent a risk to public safety without any advance information indicating that was the case. It's not clear, then, how the bureau determines what groups or people should be spied upon if they haven't broken any laws and whether that process is arbitrary.
"[The FBI] cannot be content to wait for leads to come in through the actions of others, but rather must be vigilant in detecting terrorist activities to the full extent permitted by law, with an eye towards early intervention and prevention of acts of terrorism before they occur," the new guidelines state.
Ironically, by enacting these rules in October, the Bush Administration handed sweeping authority to monitor political dissidents they'd long coveted for themselves to Barack Obama and Rahm Emanuel, which must now look like an error in strategic judgment. Rather than embrace this anti-democratic power to snoop on his political enemies, though, President-elect Obama would do well to renounce this new authority and tell the FBI to revert to their old rules.
There's a darn good reason the FBI rules prohibited domestic intelligence investigations based on politics instead of suspicion of criminal activity: Those who've forgotten those three-decade old lessons should peruse through the relevant archives of the Church Committee from the 1970s, which fully investigated abuses of similar power under the Nixon Administration.
In fact, when I heard about the new FBI guidelines, the first thing I thought of was their similarity to the notorious "Huston Plan," which Richard Nixon authorized to spy on domestic American dissidents. According to the Church Committee, Nixon's decision to unilaterally expand domestic intelligence gathering as suggested in the Huston Plan "formed the core of Article 11 in the Impeachment Articles framed by the Judiciary Committee of the House of Representatives in 1974." Even so, seemingly few people even noticed when the Bush Administration rather publicly reinstated those same, long-banned practices.
These new FBI guidelines are a Huston Plan for the 21st Century, and they were approved unilaterally, over the objection of Congressional leaders. President Obama should repeal those new guidelines by executive fiat as soon as he gets the chance, unilaterally, the same way his predecessor enacted them.
MORE: Jeralyn at TalkLeft reports that FBI Director Robert Mueller will likely stay on in an Obama administration, linking this news to the question of whether the guidelines might be overturned:
Yesterday, I included rejecting the new FBI snooping guidelines approved in September and October by Bush, Mueller and Attorney General Mukasey among my suggestions for President-Elect Barack Obama. ... How likely is that if Mueller is staying on as FBI Director?
Excellent point - that does seem to dampen hopes for an Obama Administration rolling back executive snooping powers. (Though it's early yet - maybe they'll still surprise me.) Jeralyn also provides these excellent links to relevant source documents:
- New FBI guidelines for investigations in full
- Memo discussing the changes distributed to Justice Department staffers (9/29)
- Testimony of FBI general counsel Valerie Caproni to the Senate Select Committee on Intelligence (9/23)
- Mueller Testimony: Senate Judiciary Committee (9/17)
- Mueller Testimony: House Judiciary Committee (9/16)
- Historical analysis of the guidelines by the Electronic Privacy Information Center