Posted by on July 30, 2010 in Blog

The journey of the Department of Justice's FBI Domestic Investigations and Operations Guidelines (DIOGs) has been a long and bumpy one. From the introduction of the DIOGs by Attorney General Ashcroft in 2002, to the authority being changed three times by the Bush administration to expand the FBI surveillance authorities with reduced oversight, our community has routinely been targeted and negatively affected along the way.

The DIOGS, also adopted by the Obama administration, allow FBI agents to open preliminary investigations based on claims alone rather than the more rigorous requirement of "reasonable suspicion." The DIOGs go so far as to authorize FBI agents to "identify locations of concentrated ethnic communities in the Field Office's domain, if these locations will reasonably aid in the analysis of potential threats and vulnerabilities, and, overall, assist domain awareness for the purpose of performing intelligence analysis." This also includes a community's racial and ethnic "behaviors," and "cultural traditions." The last round, and most dangerous changes to the DIOGs, granted the FBI the ability to use surveillance, informants and data mining and sharing on a community not suspected of wrongdoing or under investigation.

AAI, with coalition partners like ADC, ACLU, Muslim Advocates, MPAC and BORDC, has worked to try to convince the Department of Justice how dangerous these guidelines are to a community like ours that is often deemed suspicious because of our ethnic origin, religion or even travel patterns. In 2005, Congress made it clear that with the expanded authorities, the FBI had to better train agents and create a test they are required take to ensure they know when it is, and isn't, lawful to open investigations.

Currently, the Justice Department's inspector general is investigating whether hundreds of FBI agents across the country cheated to pass the above test made mandatory by Congress as a measure to protect our privacy and civil liberties. If an agent needs to cheat on a mandatory test to prove he/she knows the rules about when to open an investigation without actual evidence, how can they be trusted to follow those same rules?

During recent testimony before the Senate Judiciary Committee, FBI Director Mueller himself seemed unsure about the rules found in the DIOGs. When asked by Sen. Dick Durbin (D-IL) if there "is there a requirement of suspicion of wrongdoing before there is surveillance of an individual or surveillance of a location," Mueller incorrectly answered that the FBI cannot conduct surveillance unless it suspects wrongdoing. After the hearing, Mueller sent a letter to Sen. Durbin claiming he misspoke and meant to say the FBI must have a "proper purpose" before conducting an investigation or surveillance; actual suspicion of wrongdoing is not necessary.

Another important part of the hearing raised the issue of our community specifically being racially or religiously profiled by FBI agents. Senator Durbin references a New York Times article that describes how Arab and Muslim Americans are growing more and more distrustful of the FBI and its tactics used to collect information. He also made it very clear to Director Mueller that a close partnership and better cooperation between the FBI and Arab American and American Muslim communities across the country is imperative for national security. Senator Durbin posed the following question during the hearing:

In the past I have been complimentary of you and the efforts of the FBI since 9/11 to deal with the Arab and Muslim population in America. I thanked you, commended you for making it clear that we are not casting a wide net and saying that those of Arab descent or those of the Muslim faith are necessarily to be suspect. And also to suggest, as you have before this Committee, that the cooperation of Arab Americans and Muslim Americans is critical to bringing in the information we need, the intelligence we need to stop future acts of terrorism. There's been a recent article in the New York Times which questions the current situation at the FBI. It was entitled "Muslims say FBI tactics sow anger and fear." Terrorism expert David Schanzer said, "This is a national security issue. It's absolutely vital that the FBI and Muslim American communities clear the air and figure out how to work together." And Michael Rolince, a former FBI counterterrorism official, said, "There are some people in the bureau who believe, as I do, the relationship with the Muslim community is crucial and must be developed with consistency. And there are those who don't." One of the things that is still being debated, or at least considered for change, were some guidelines handed down by the former Attorney General, Mukasey concerning the assessments of innocent Americans and whether there's a suspicion of wrongdoing , and this is a source of concern in the Muslim community.

Mueller addressed Senator Durbin's concerns by declaring that the guidelines strike the "appropriate balance between civil liberties on the one hand and giving us the tools we need to protect the American public against terrorist attacks."  While he may have been clear about his opinion of the guidelines, he certainly lacked clarity on how the guidelines are actually applied.  

With such confusion at the top, we're not entirely surprised there is confusion at the bottom. We'll keep you posted as the results of the investigation are released.