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Mixed reactions greet new FBI anti-terror rules

By The Associated Press,
freedomforum.org staff

05.31.02

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WASHINGTON — Who's keeping tabs on your Internet chat? Who's in the next pew or on the next prayer rug? Who's got their eye on you at the library?

Could be the FBI, under rules announced yesterday that give agents more power to watch people just about anywhere they congregate in public — including in church, political meetings and cyberspace.

That makes some First Amendment advocates and civil libertarians uneasy, but others say law-abiding citizens have no reason to fear, reflecting the ambivalence that many people have felt since the Sept. 11 terrorist attacks.

"That's a difficult one," said Mo Bey, pondering the new FBI guidelines before heading into the Islamic Center of Washington for prayers. "I don't think that citizens should be violated because of their religious affiliations. But Americans need to be attentive to terrorist movements."

Librarians, Internet surfers and other people expressed similar feelings of disquiet about someone monitoring them — even if their activity is right out in public.

The Bush administration is drawing sharp criticism from civil libertarians and others for the new terror-fighting guidelines as part of an effort to give the beleaguered agency new tools to pre-empt terrorist strikes.

"Our philosophy today is not to wait and sift through the rubble following a terrorist attack," Attorney General John Ashcroft told a news conference yesterday.

But critics said the new guidelines were an erosion of Americans' constitutional freedoms in the name of fighting terrorism.

"The administration's continued defiance of constitutional safeguards seems to have no end in sight," complained Rep. John Conyers, the top Democrat on the House Judiciary Committee.

"It only serves the purpose of heightening the scare in the society and the paranoia against Muslims," said Shaker Elsayed, secretary general of the Muslim American Society.

Some First Amendment advocates worry that the relaxed restrictions on FBI activity may chill Americans' exercise of their First Amendment freedoms of speech, religion and assembly, including freedom of association.

"Naturally, Americans want to do as much as possible to help prevent terrorism, but there is a legitimate concern about the possible impact on constitutional rights of this expansion of authority, in light of past abuses," said Paul McMasters, First Amendment ombudsman for the Freedom Forum's First Amendment Center.

"There is a fine line between FBI agents visiting public places and infiltrating legitimate activities. Crossing that line could put a real chill on the exercise of First Amendment rights for ordinary Americans going to church; meeting with family, friends and colleagues; conversing in Internet chat rooms; exchanging e-mails, or speaking in public forums."

The FBI is under scrutiny in Congress for possibly missing hints about threats of suicide hijackings prior to Sept. 11. Partly in response to such criticism, FBI Director Robert Mueller has announced a broad reorganization of the agency designed for a new proactive approach to terrorists, spies and computer hackers.

The guidelines announced by Ashcroft represent a loosening of restrictions laid down in the 1970s. They will allow FBI agents to enter any public place for the purpose of detecting or preventing terrorist activities.

In the realm of computers and the Internet, the revisions authorize the FBI to use commercial data-mining services and to engage in online research, even when it isn't linked to an individual criminal investigation.

The revised guidelines will push the decision-making for an array of investigative steps away from FBI headquarters in Washington and down to individual offices around the country. The special agents in charge of each office will hold the keys to setting investigative steps in motion.

President Bush and Ashcroft insisted that the revisions weren't a threat to civil liberties.

"We intend to honor our Constitution and respect the freedoms that we hold so dear," the president said.

Ashcroft said agents in the field "are frustrated because many of our internal restrictions have hampered" their efforts to move quickly, and that now they will be able to act decisively "unless they are barred from attending by the Constitution or federal law."

Under present guidelines, Ashcroft said, agents "cannot surf the Web, the way you and I can," and cannot simply walk into public events to observe people and activities.

"The idea that FBI should be allowed to go into public places or browse the Web just like ordinary citizens is a seductive one," said McMasters, "until you take into account the agents' very different purpose for being there. For example, a federal agent entering a church of any kind to watch rather than worship not only threatens religious freedom but the sanctity of that religious exercise. Ordinary citizens usually are not in public places to spy on others or to build a dossier on them."

Ashcroft said nothing in the guidelines would permit the FBI to routinely build files on people or organizations.

Critics disputed that.

"Apparently, Attorney General Ashcroft wants to get the FBI back in the business of spying on religious and political organizations," said Margaret Ratner, an attorney with the Center for Constitutional Rights. "That alone would be unconstitutional, but history suggests the FBI won't stop at passive information gathering."

"They are using the terrorism crisis as a cover for a wide range of changes, some of which have nothing to do with terrorism," said James X. Dempsey, deputy director of the Center for Democracy and Technology.

Dempsey predicted that one new tool, the power to mine commercial data, will be used in illegal drug, child-pornography, stock-fraud, gambling and "every other type of investigation the FBI does."

Nicholas Graham, a spokesman for America Online, said, "If law enforcement asks for our cooperation, we absolutely do cooperate with them in a criminal investigation. We have always been careful to strike a careful, reasonable and appropriate balance between protecting our members' privacy and their safety while working with law enforcement."

Stringent guidelines on FBI activities were put in place in the 1970s because of the FBI's domestic surveillance of prominent Americans, including the Rev. Martin Luther King Jr., whose private life was subjected to electronic surveillance.

The American Civil Liberties Union said the lifting of restrictions could renew abuses of the past. King's "persecution by law enforcement is a necessary reminder of the potential abuse when a government with too long a leash seeks to silence voices of dissent," ACLU legislative counsel Marvin Johnson said.

Others, however, were much less critical of the revisions.

"The impact is far less significant and far less subject to abuse than what was enacted into law" by Congress after the Sept. 11 attacks, said attorney Raymond J. Gustini, who chairs a subcommittee of the American Bar Association on electronic privacy and co-chairs an ABA task force on financial privacy.

The new anti-terrorism law put in place new legal authority in such areas as money-laundering, e-mail monitoring, detention policies and domestic surveillance by the CIA.

"The FBI really needs this right now," Gustini said. "They're under a microscope now more than any other player other than the president. It's very important for the FBI to deliver."

Highlights of new FBI guidelines
Excerpts from the new anti-terrorism guidelines as issued by the FBI:

  • In their general structure, these guidelines provide graduated levels of investigative activity, allowing the FBI the necessary flexibility to act well in advance of the commission of planned terrorist acts or other federal crimes.

  • "As with the other types of full investigations authorized by these guidelines, any lawful investigative technique may be used in terrorism enterprise investigations, including the development of sources and informants and undercover activities and operations.

  • "Inquiries and investigations shall be conducted with as little intrusion as the needs of the situation permit. It is recognized, however, that the choice of techniques is a matter of judgment. The FBI shall not hesitate to use any lawful techniques consistent with these guidelines, even if intrusive, where the intrusiveness is warranted in light of the seriousness of a crime or the strength of the information indicating its commission or potential future commission.

  • "In its efforts to anticipate or prevent crime, the FBI must at times initiate investigations in advance of criminal conduct. It is important that such investigations not be based solely on activities protected by the First Amendment or on the lawful exercise of any other rights secured by the Constitution or laws of the United States.

  • "General crimes investigations and criminal intelligence investigations shall be terminated when all logical leads have been exhausted and no legitimate law enforcement interest justifies their continuance.

  • "Special care must be exercised in sorting out protected activities from those which may lead to violence or serious disruption of society.

  • "Searches and seizures must be conducted under the authority of a valid warrant unless the search or seizure comes within a judicially recognized exception to the warrant requirement.

  • "For the purpose of detecting or preventing terrorist activities, the FBI is authorized to visit any place and attend any event that is open to the public, on the same terms and conditions as members of the public generally. No information obtained from such visits shall be retained unless it relates to potential criminal or terrorist activity."

Related

NYPD seeks more leeway to monitor political groups
Citing a climate altered by terrorist threats, department asks federal court to sharply curtail powers of three-member panel that oversees its surveillance of domestic activists.  09.26.02

Newspaper: FBI worked covertly to harass university's students, faculty
San Francisco Chronicle reporter's FOI lawsuit forces agency to release more than 200,000 pages of confidential records covering 1940s to 1970s.  06.10.02

FBI monitoring library records in terror probe
Library officials say government investigators are visiting branches nationwide and checking reading records of people they suspect of having ties to terrorists.  06.25.02

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