New Guidelines Open Up FBI Investigative Techniques

Thursday, May 30, 2002

By Carl Cameron
Fox News

WASHINGTON — Attorney General John Ashcroft on Thursday will announce details of a historic plan to revamp the FBI by dramatically decentralizing the organization and allowing field agents to conduct more undercover and surveillance work in an effort to prevent terrorist attacks, Fox News has learned.

A draft of new Justice Department guidelines, to be unveiled by Ashcroft just a day after Director Robert Mueller publicly revealed plans to overhaul the FBI, will encourage aggressive pre-emptive investigative techniques and analysis by field agents, a dramatic change from the practice of investigating and prosecuting crimes after they have been committed.

"We have to do a better job at collaborating with others," Mueller said in his Wednesday announcement. "And as critically important, we have to do a better job managing, analyzing and sharing information. In essence, we need a different approach that puts prevention above all else."

Mueller said the impending overhaul at the FBI, first reported by Fox News, will affect all areas of the bureau including structure, investigative techniques, culture, attitude, procedures and methodology, hiring and technology.

The "Attorney General's Guidelines on General Crimes, Racketeering Enterprise and Terrorism Enterprise Investigations," which will be part of Ashcroft's announcement on Thursday, will explicitly establish "protection of the United States and the American people from terrorism as the highest priority and central mission of the FBI."

According to the draft, early prevention, detection and empowerment are key to preventing terrorist attacks. The FBI will achieve such goals by "fully employing authorized methods in preliminary inquiries to prevent terrorism even before information warranting a full investigation has been obtained," and "undertaking investigation even where no present crime exists but facts or circumstances reasonably indicate that terrorist offenses will be committed."

The guidelines will also allow the FBI to investigate certain categories of people and "extends the authority to carry out criminal intelligence investigations of groups involved in terrorism and criminal intelligence investigations of groups that aim to engage in terrorism."

The new mission will also end policies that have undermined investigations in the past.

"The FBI shall not hesitate to use any authorized lawful technique, even where intrusive, where the intrusiveness is warranted," the guidelines say. It also "removes blanket discouragement of more intrusive techniques in preliminary inquiries under prior policy, emphasizing rather that such methods are to be used."

The guidelines also reduce "the approval level for initiation and renewal of terrorism enterprise investigations from FBI headquarters to Special Agent in Charge," in effect allowing agents in the field to decide when an investigation calls for surveillance and other measures that used to require approval at the top of the bureaucratic food chain.

The new policy will also add language that strongly encourages the use of undercover methods.

FBI agents will be encouraged to participate in undercover investigations by "visiting places and events which are open to the public, on the same terms and conditions as members of the public generally, for the purpose of detecting or preventing terrorist activities."

Prior policy authorized the use of undercover methods in such investigations, but this was rarely done as a practical matter.

The guidelines will end prohibition on using criminals as informants and expand the use of surveillance by "reducing the internal approval level in the FBI for consensual monitoring from Special Agent in Charge to Assistant Special Agent in Charge."

It is anticipated that some arrests and convictions under these new guidelines will be appealed, and the Supreme Court ultimately will have to rule on the constitutionality of certain new procedures. The guidelines assure that all actions will be taken with particular concern for constitutional and legal factors and "adds a requirement to explain how any potential constitutional concerns and any other legal concerns have been addressed."

In the past, agents who took these types of activities upon themselves without authorization were punished for their actions. Now, they will be rewarded.

Many of the reforms seem to be direct responses to missed leads and bureaucratic inaction in the months before Sept. 11.

FBI field alerts to Washington of Middle Eastern men training at U.S. flight schools during the summer of 2001 were buried in paperwork, and agents in Minneapolis who circumvented normal channels to contact the CIA about suspected "20th hijacker" Zacarias Moussaoui were reprimanded.

Fox News has reported there may be a dozen more instances of missed opportunities and overlooked information relating to the September terror attacks.

Others parts of the reorganization can be attributed to pre-existing controversies, such as the case of Robert Hanssen, sentenced this month to life in prison for spying for Moscow, and the case of Wen Ho Lee, a nuclear scientist suspected, imprisoned and then cleared of spying for China.

Justice Department officials, perhaps anticipating congressional criticism of the new measures, pointed out to Fox News that critics of pre-Sept. 11 intelligence and investigative failures have frequently been quick to decry perceived threats to civil liberties.

The officials said that those who criticize mistakes made in the past but now balk at steps to prevent recurring problems or attacks in the future either want it both ways, are playing politics, or both.