BY ANDREW KALLOCH
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Valerie Caproni, General Counsel to the Federal Bureau of Investigation, defended the Attorney General’s revised guidelines which govern the F.B.I.’s domestic operations, in a lecture sponsored by the Harvard Law School Forum on Tuesday, December 2.
Caproni stated that the new regulations, which went into effect Monday and make uniform many of the procedures the F.B.I. uses for ordinary crime and national security operations, were “signed after unprecedented consultation” with interest groups, including civil liberties advocates such as the American Civil Liberties Union.
Moreover, Caproni insisted, the new guidelines were essential for the F.B.I. to transform itself into the preeminent agency in charge of domestic terrorism operations. In so lauding the F.B.I.’s shift toward terrorism since the 9/11 Commission Report, Caproni took a shot at the Central Intelligence Agency, stating, to laugher from the audience, “we do not want the CIA operating within the U.S. The CIA and constitution have passing acquaintance with each other.”
Caproni noted that depending on what newspaper you read, the new guidelines are “either the greatest thing since sliced bread [Washington Post]or the worst threat to civil liberties since J. Edgar Hoover [New York Times].” Caproni declined to stake out ground on the extremes of the debate,. Instead, she described the AG guidelines as policy statements that “operate as a buffer between the outer limit of what is constitutionally permissible and what the Bureau is able to do as a matter of policy.”
For example, while the Supreme Court has ruled that citizens have no reasonable expectation of privacy in the trash they send to the curb, AG guidelines only permit “trash covers” where an investigation is open, which in turn requires a factual predication that the person is or may be a criminal.
The revision of the guidelines consolidated six sets of guidelines that dealt with a variety of policies, most notably the F.B.I.’s procedures regarding general criminal investigations and those affecting National security investigations, including counterterrorism and counterintelligence operations.
The revision was prompted, in part, by an F.B.I. request that the AG eliminate differences between the sets of guidelines-both structural differences and how much predication is needed to open a full or preliminary investigation. Under the old rules, Caproni stated, “techniques could be used differently depending on what set of guidelines you were under.” For instance, prompt and limited checking of leads in criminal investigations permitted the use of human sources, but “threat assessments” under national security guidelines barred the use of human sources.
Differences were often obscured by language that was difficult to define, and thus, challenging to train to the F.B.I.’s cadre of officers in the field. For example, there was no restriction on “physical surveillance” in pre-investigation in criminal cases, however the national security guidelines did not permit physical surveillance but only “casual observation.”
Said Caproni, “It was very difficult to give advise to agents who wanted advice… we’re not good with mush. We like rules that set lines.”
Another reason for combining rules was philosophical. “The national security guidelines were more restrictive than the general crime guidelines-philosophically, that didn’t make sense,” Caproni declared.
But perhaps the most important rationale for consolidating general crime and national security procedures was that different restrictions “interfered with our ability to become a real intelligence agency…Intelligence agencies don’t wait for someone to tell you ‘you’ve got a problem.’ They go find the problems.” Caproni stated, “If you want us to be an intelligence agency, we need the tools to do so.”
The new rules establish a clear category of activity called an “assessment.” Assessments can be conducted for variety of different reasons-to follow leads, determine threats and vulnerabilities, gather information necessary for strategic analysis, vet or identify a source, and collect on matters of foreign intelligence interest. Under the new regulations, the F.B.I. can examine their own records or those of other government agencies (local, state, federal, and tribal) and can use grand jury subpoenas for limited purposes (telephone numbers and identification).
Caproni spoke at length about one of the most controversial elements of the new guidelines: the fear of many Americans that a reduced level of predication necessary to begin a pre-investigation assessment would ultimately lead the Bureau to use racial and religious profiling.
Caproni said, “The civil libertarians say…how are you to persuade us that you are not immediately profiling Muslims or visitors from Middle East? The problem is, as a factual matter, there is a type-tie between ethnicity and religion and the terrorist groups we are concerned about.”
Caproni stressed that policy dictates that, “You can never start an assessment or investigation based solely on first Amendment activity, ethnicity, or race.”
However, she admitted that the F.B.I. can take those elements into account if relevant. Indeed, race and religion may be even a significant factor in the F.B.I.’s investigation, “especially where you are looking at a group where [ethnic or religious identity] is a membership criteria,” such as Hezbollah, which is made up almost exclusively of Lebanese Muslims.
Thus, Caproni stated, field officers investigating Hezbollah must investigate ethnic makeup because almost all Hezbollah are Lebanese Muslims. If you have Lebanese Christians, you know you don’t have a potential Hezbollah problem. On the other hand, in an assessment of a group like the Earth Liberation Front, which Caproni described as an “environmental domestic terrorist group,” the F.B.I. cannot collect ethnic or religious data because there is no religious component to the group.
To further explain the F.B.I.’s policy, Caproni offered a hypothetical in which the F.B.I. investigated a university that had confidential military contracts. In such a situation, the F.B.I. may compile a list of Iranian and Chinese students, if the Bureau has reason to believe that those nations have an interest in acquiring U.S. secrets of that sort. The F.B.I. would then use databases to determine the students’ majors, sponsors, and addresses. In turn, the Bureau may be able to connect a particular student to a sponsor who has been associated with other espionage cases.
In this way, Caproni offered, “You go from an undifferentiated group…to five people who have a lot of earmarks that they may be up to no good. It is not ethnic profiling because we have specific reasons for looking at them.”
Summing up the discussion of profiling, Caproni stated, “The problem with racial profiling…is reliance on racial stereotypes that are factually wrong. The distinction we’re trying to draw is…if there is a logical basis to believe certain groups, like Hezbollah, are made up almost exclusively of people from a given ethnic or religious group.” Ultimately, Caproni concluded, “We think we’ve set our policy taking into account the concerns of civil libertarians.”
As part of their effort to quell concerns about profiling, the F.B.I. and Department of Justice have developed a sensitive operations review committee, which must sign off on the use of the most intrusive tools, including the placing of informants within a group prior to the opening of a full investigation. This special committee must review any human operations involving a religious service or group. Moreover, the new policy will be reexamined in just one year, whereas F.B.I. policy is typically reviewed every 3-5 years.
Ultimately, Caproni opined, “We will have failed if, in order to keep Americans safe, we sacrifice everything that makes America special.”