New Rules for the FBI

Monday, September 29, 2008

SINCE the terrorist attacks of Sept. 11, 2001, the Federal Bureau of Investigation essentially has been remaking itself into an intelligence agency that would rather thwart terrorist plots than apprehend perpetrators after they've struck. To that end, the bureau and the Justice Department have crafted guidelines that allow FBI agents as much flexibility to deter terrorist strikes as they have to disrupt the crimes they traditionally handle. We've had a chance to review the guidelines; we believe they are reasonable and include safeguards that should protect against intrusions on privacy and civil liberties.

The new rules appropriately consolidate several directives that separately governed criminal probes and national security inquiries. A cohesive set of standards should increase accountability, since agents will no longer have reason to be confused about which sets of guidelines govern what situations.

The biggest change gives agents who are gathering information in the earliest stages of an intelligence or terrorism probe the discretion to use techniques that now require approval from superiors; those techniques already are available to agents working on routine crime matters. For example, agents who receive a tip about drug-dealing at a local bar could send in a source to gather information about whether there is probable cause to launch an investigation. Agents could carry out such probes on their own, without being required to identify themselves as law enforcement officers.

If agents intend to pursue a formal inquiry that relies on more-invasive investigative methods, the guidelines require that they seek approval from supervisors and coordinate with the Justice Department's National Security Division, regardless of whether agents are assessing a criminal or intelligence matter. The Justice Department's Office of the Inspector General, which has vigilantly called out the FBI on past excesses, will oversee the bureau's conduct in this area. The FBI has also established an internal compliance unit to monitor agents' actions.

The bureau and the Justice Department did not have to seek Congress's input before putting the guidelines into effect; they should be commended for voluntarily doing so and for seeking feedback from religious and civil liberties groups. But lawmakers, outside groups and journalists were allowed to read only a draft proposal; they were not permitted to make copies of the document, which would have allowed for more comprehensive and meaningful critiquing. There was no reason for such secrecy, given that the guidelines will be made public after their adoption, which could be as early as this Wednesday.

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