What Happened to Probable Cause of Criminal Activity? (New FBI Guidelines)
JVB
forwarding my most recent post to my own list of progressives and
radicals re. the New FBI Guidelines. See the article below, my
comments above it. (To see more about my list, go to
http://groups.yahoo.com/group/jvblist. For more about me, see www.jvbline.org.
Also, if you're a writer or creative person, you might want to take a
look at another group I moderate, Writers for Peace, at
http://groups.yahoo.com/group/writersforpeace.)
---------- Forwarded message ----------
From: Jennifer Van Bergen <jennifer....@gmail.com>
Date: Mon, Oct 6, 2008 at 8:59 AM
Subject: What Happened to Probable Cause of Criminal Activity? (New
FBI Guidelines)
To: jvb...@yahoogroups.com
I have written and spoken publicly lots about the subject of FISA
warrants and repeatedly made the point that FISA warrants do not
require probable cause of criminal activity, but whatever may be found
under those warrants may be used in a criminal investigation and
trial. Of course, judges may exclude material found under a FISA
warrant, but more and more this stuff is admitted.
An amazing thing is that when I have debated FBI agents or
prosecutors, they either do not know the law or they intentionally
mislead the audience about it. After I once explained to a savvy group
of seniors about FISA warrants, an FBI agent stood up and insisted --
with no shame, hesitation, or sense of inconsistency (I mean, did he
listen to anything I had said?) -- that FISA warrants DO require
probable cause. (Um, yes, they do, but they only require probable
cause that the target is a foreign power, an agent of a foreign power
-- and under the 2004 "lone wolf" amendment, a terrorist. They do NOT
require probable cause of criminal activity.)
Does any of matter? These new guidelines create a "Division of Pre-
Crime." It has never been (until after 9/11) the FBI's job to
anticipate terrorist attacks.
We seem to have forgotten the Fourth Amendment. JVB
http://www.washingtonpost.com/wp-dyn/content/article/2008/10/03/AR2008100303501.html
Guidelines Expand FBI's Surveillance Powers
Techniques May Be Used in U.S. Without Any Fact Linking Subject to
Terrorism
By Carrie Johnson
Washington Post Staff Writer
Saturday, October 4, 2008; A03
Justice Department officials released new guidelines yesterday that
empower FBI agents to use intrusive techniques to gather intelligence
within the United States, alarming civil liberties groups and
Democratic lawmakers who worry that they invite privacy violations and
other abuses.
The new road map allows investigators to recruit informants, employ
physical surveillance and conduct interviews in which agents disguise
their identities in an effort to assess national security threats. FBI
agents could pursue each of those steps without any single fact
indicating a person has ties to a terrorist organization.
Attorney General Michael B. Mukasey said the guidelines are necessary
to fulfill the FBI's core mission to predict threats and respond even
before an attack takes place. The ground rules will help t he bureau
become "a more flexible and adept collector of intelligence," as
independent commissions urged after the strikes of Sept. 11, 2001,
Mukasey said in a statement yesterday.
The guidelines, which harmonize five different road maps dating back
more than a generation, take effect Dec. 1. That is two months later
tha n initially planned, and authorities said the delay was a
concession to privacy advocates and Arab American groups who expressed
concern that their members could be subject to racial or ethnic
profiling.
Justice Department leaders rewrote a key section of the guidelines
concerning agents' infiltration of groups and attendance at
demonstrations. Under the new language, agents would be able to
investigate the likelihood of violence stemming from a planned
demonstration for as many as 30 days, with renewals subject to
supervisory approval.
Congressional staff members said the revisions were superficial, and
the American Civil Liberties Union immediately condemned the road map.
Critics had asked Justice Department leaders to wait until a new
president takes office, an approach that administration officials
rejected.
Caroline Fredrickson, director of the ACLU's Washington legislative
office, said: "Since, under these guidelines, a generalized 'threat'
is enough to begin an investigation, the FBI will be given carte
blanche to begin surveillance without factual evidence. . . . These
guidelines will lead to political witch hunts and more unwarranted
investigations of political enemies and peace groups."
Senate Judiciary Committee Chairman Patrick J. Leahy (D-Vt.) said the
grant of new authority to FBI agents flies in the face of recent
history, including overreaching and sloppy record-keeping by agents
who demanded too much secret information from telephone companies and
Internet service providers as part of na tional security
investigations.
Bush administration offic ials assert that the overhaul is merely a
common-sense change that would give FBI agents who pursue national
security leads the same power as agents who investigate criminal
offenses.
Civil liberties activists yesterday raised anew questions about the
expanded role of the FBI in collecting an array of foreign
intelligence within U.S. borders, absent evidence of a crime. For
instance, the guidelines allow FBI agents to conduct interviews and
monitor the movement of people who may possess useful information on
subjects of general interest to American policymakers, such as a
foreign government's oil exports.
© 2008 The Washington Post Company
http://www.washingtonpost.com/wp-dyn/content/article/2008/10/03/AR2008100303501.html