The media is reporting changes to the Attorney General Guidelines, and I have been reading some articles and listening to comments about these changes. For me, it looks like expanded authority to conduct physical surveillances, polygraphs of informants and limited attendance at public functions is not much change in terms of intrusion into the civil liberties of our population. I understand that some people may be alarmed; however, I know that the FBI’s agents charged with collecting intelligence within the United States are closely supervised – I was one of them. Additionally, oversight and direction from FBI Headquarters and the Department of Justice of intelligence collection by FBI Field Offices has been in effect for many years, and with a few exceptions, has been very effective.
I was a young FBI Special Agent during the Church-Pike Committee hearings of the mid-1970s, and I remember the incredible impact the hearings had on the FBI as an agency. As a result of those hearings, fundamental laws (FISA), regulations and guidelines that controlled FBI Intelligence collection within the United States from the mid-1970s on were promulgated. They were conservative and worked until September 11, 2001, when the world changed. After that date, new laws (the Patriot Act), regulations and updated guidelines were enacted that I contend have done much to protect the homeland from new attacks. Therefore, I agree that the slight amendment of the AG Guidelines being reported in the media does not change much in the post-9/11 world, which continues to be an extremely dangerous place.
One issue that has concerned me for a long time is the proper role of local and state police agencies in the collection of terrorism-related intelligence, as opposed to the collection of criminal intelligence, within the United States. I understand that police have a legal obligation to exercise their duties when they become involved in responding to and working against any criminal activities occurring within their jurisdictions. The question that I have is do they have the authority, absent criminal activity, to collect intelligence on U.S. citizens within this country or abroad? I make this distinction because criminal activity is usually not readily apparent in counterterrorism investigations. I suspect that a number of police departments are collecting what they define as terrorism-related intelligence domestically and even abroad without a clear criminal predicate.
Flashing back to the Church-Pike era, I remember that many local police forces across the country had active intelligence units collecting information on citizens without clear legal authorities. Some of these departments were ultimately sued and their intelligence units disbanded. While FBI Agents are held to tight standards and operate within Federal laws and AG Guidelines, I remain concerned about the authorities under which local and state police can collect intelligence, absent a criminal predication.
I am also concerned about local and state police department’s oversight of officers who are in the field conducting counterterrorism collection activities. My view is that the authorities that these officers are operating under are thin at best and that there may be a need to codify them so that individual officers and departments will be safe from possible legal action (law suits). Right now, I believe they are hanging out and may not be able to survive strong legal challenges to their intelligence collection activities.