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Rule Changes Would Give FBI Agents Extensive New Powers

By Carrie Johnson
Washington Post Staff Writer
Friday, September 12, 2008

The Justice Department will unveil changes to FBI ground rules today that would put much more power into the hands of line agents pursuing leads on national security, foreign intelligence and even ordinary criminal cases.

The overhaul, the most substantial revision to FBI operating instructions in years, also would ease some reporting requirements between agents, their supervisors and federal prosecutors in what authorities call a critical effort to improve information gathering and detect terrorist threats.

The changes would give the FBI's more than 12,000 agents the ability at a much earlier stage to conduct physical surveillance, solicit informants and interview friends of people they are investigating without the approval of a bureau supervisor. Such techniques are currently available only after FBI agents have opened an investigation and developed a reasonable suspicion that a crime has been committed or that a threat to national security is developing.

Authorities say the changes would eliminate confusion for agents who investigate drug, gang or national security cases.

The overhaul touches on several sensitive areas. It would allow, for example, agents to interview people in the United States about foreign intelligence cases without warrants or prior approval of their supervisors. It also would rewrite 1976 guidelines established after Nixon-era abuses that restrict the FBI's authority to intervene in times of civil disorder and to infiltrate opposition groups.

"We wanted simpler, clearer and more uniform standards and procedures for domestic operations," said a senior Justice Department official. "We view this as the next step in responding to post-9/11 requests that the FBI become better at collecting intelligence and using that intelligence to prevent attacks."

The move comes a year after the Justice Department's inspector general documented widespread lapses involving one of the bureau's most potent investigative tools, secret "national security letters" that FBI agents send to banks and phone companies to demand sensitive information in terrorism probes.

The revisions are the latest in a series of efforts to tear down a wall that, prior to the Sept. 11, 2001, attacks, prevented intelligence investigators from sharing some information with their counterparts working on criminal cases. Senior Justice Department and FBI lawyers who discussed the proposal yesterday said such powers are necessary to continue the transformation of the FBI into a proactive organization that can prevent terrorist strikes, as recommended by several independent commissions that addressed intelligence failures after the attacks.

The rule revisions require the approval of Attorney General Michael B. Mukasey, who has signaled that they will take effect Oct. 1. FBI agents already are being trained on the changes, though officials said yesterday that they would consider making adjustments after receiving suggestions from interest groups and lawmakers.

Congressional aides examined the draft guidelines behind closed doors last month and FBI and Justice lawyers will present them today to an array of civil liberties and privacy advocates, as well as Arab American groups that have expressed concerns about their impact on religious and ethnic minorities.

The groups say they fear that agents will use ethnicity or religion as the basis for a threat assessment. But top Justice Department leaders, including the attorney general, noted the illegality of racial profiling and said investigations will not be opened based "solely" or "simply" on a person's race or religion.

Previous changes to FBI operating instructions, made by Attorney General John D. Ashcroft in 2002 and 2003, did not receive a public airing before they took effect. Still, civil liberties advocates are asking whether protections built into the rules will be strong enough.

"It is an extraordinarily broad grant of power to an agency that has not proven it uses its power in an appropriate manner," said Michael German, policy counsel at the American Civil Liberties Union.

The revised rules largely eliminate the requirement that FBI agents file reports to their supervisors on early-stage investigations, in favor of audits at bureau field offices by lawyers in the Justice Department's National Security Division.

Threat assessments and early-stage investigations that cover political, religious or media figures and full-scale investigations of people in the United States, however, are special cases that must be flagged for bureau supervisors and lawyers, according to both current standards and the proposed changes.

Monitoring conversations between informants who agree to wear recording devices and subjects of investigations, which now requires the permission of an assistant U.S. attorney, could occur without a prosecutor's approval, except in sensitive cases involving state and federal officials and judges, as well as federal prisoners.

One of the areas still under discussion, according to a senior Justice Department official, is the standard for the FBI's rare involvement in responding to civil disorder. Under the current standards, FBI involvement requires the approval of the attorney general and can last for only 30 days.

The new approach would relax some of those requirements and would expand the investigative techniques that agents could use to include deploying informants. FBI agents monitoring large-scale demonstrations that they believe could turn dangerous also would have new power to use those techniques.

Policy guidance for FBI agents and informants who work as "undisclosed participants" in organizations is still being written, the officials said yesterday.

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