An American Bar Association committee yesterday asked Attorney General William French Smith to revise the FBI's guidelines on domestic security and terrorism investigations to "give people assurance that civil liberties will be respected."
Despite its recommendations, the ABA committee commended the Reagan administration for its guidelines and for "upholding the idea that intelligence investigations must be conducted subject to the rule of law," according to ABA spokesman Gail Alexander.
The guidelines, released in March, authorized the Federal Bureau of Investigation to use informers and infiltration by undercover agents in preliminary inquiries, before having enough evidence to warrant a full investigation. The guidelines also gave the FBI authority to begin investigations on the basis of a group's political statements, rather than only its actions, when there is an apparent intent and capacity to act on the threat.
The ABA committee recommended that FBI supervisors approve use of informers for preliminary domestic security and terrorism investigations. Now, supervisors must approve use of informers only for full investigations.
Preliminary investigations determine whether the elements of a crime exist, while full investigations develop information on the goals, membership and beliefs of a group. FBI agents can get warrants for electronic surveillance for full investigations but not for preliminary investigations.
The ABA committee also recommended that Smith change his guidelines to make it clearer that the FBI should investigate criminal conduct rather than beliefs or opinions. It recommended that Smith have the guidelines say that the FBI can investigate groups with violent activities rather than groups with violent goals.
"It's a choice of whether the FBI looks at goals first or activities first," said Eric Richard, chairman of the ABA's subcommittee on domestic surveillance.
"The Smith guidelines create explicit authority for the FBI to begin investigations on the basis of political statements by groups," Richard said. "We think there's some justification for that, but the FBI should be limited to doing preliminary investigations in those cases and only based on whether a crime is going to be committed."
The Smith guidelines made it somewhat easier for the FBI to conduct domestic security and terrorism investigations because they replaced 1976 guidelines formulated by then-Attorney General Edward H. Levi after disclosures that the FBI had engaged in widespread spying on Americans, particularly in the civil rights and antiwar movements in the 1960s and 1970s.
"We agree with the FBI and the Justice Department that some changes were needed to protect the American public from terrorism, but we think some more changes are needed to give people assurance that civil liberties will be respected," Richard said.
Smith called the ABA report an "endorsement" and said it recognized "a critical public interest in protection from terrorist incidents."
"The report does express some disagreement with the way particular portions of the guidelines are worded, but such differences are common among lawyers and reflect issues of policy and style rather than fundamental disagreements on matter of law," Smith said.