When Did It Become Legal to Spy on Americans?

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Congress and the public should demand more oversight of changing FBI rules on domestic surveillance

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It just got easier for the federal government to collect information about innocent Americans -- and those Americans have had surprisingly little say in the matter.

On October 15, the FBI reportedly implemented new rules that relax restrictions on, and oversight of, the FBI's intelligence collection activities. Although they are not available to the public, reports indicate the changes permit FBI agents to search an individual's trash with the goal of finding material that might pressure him into becoming a government informant, grant agents the authority to search commercial or law enforcement databases without first opening an investigation, and reduce the type of investigations subjected to heightened oversight because of their relationship to protected First Amendment expression, association, or religious practice.

This is the third modification of the FBI's intelligence collection authorities since September 11, 2001. First in 2002, again in 2008, and finally, just last week, amendments were adopted with scant public attention and with minimal -- if any -- congressional involvement. Groups and communities concerned about the new rules' impact on civil liberties, particularly the risk of religious or ethnic profiling, also had no constructive input.

That such momentous changes can take place essentially under the political radar is something of a historical accident, but it has serious contemporary implications.

In the mid-1970s, a congressional investigative committee known as the Church Committee conducted a comprehensive inquiry into the activities of the American intelligence community over the course of six presidential administrations, from Roosevelt through Nixon. The Committee found that the intelligence community, over the course of several decades, had engaged in multiple illegal programs, all of which were carried out in secret and without legislative oversight. The FBI had employed covert action to disrupt and discredit peaceful civil rights, anti-war, and women's rights groups. The CIA, in violation of its charter, had engaged in massive domestic intelligence collection targeting lawful protest activity, plotted to assassinate foreign leaders, and conducted covert experiments that included the administration of LSD to unwitting subjects.

The result of these revelations was a groundswell of outrage that fueled significant reforms. These reforms introduced limits on the collection of both foreign and domestic intelligence, increased congressional and judicial oversight of intelligence gathering, and narrowed the scope of the intelligence community's mandate, particularly within the United States.

But these rules were not implemented in uniform fashion. The rules governing foreign intelligence surveillance were set out in the Foreign Intelligence Surveillance Act of 1978. A presidential executive order banned U.S.-sanctioned assassinations of foreign leaders. And the FBI's domestic intelligence authorities were governed by internal Justice Department policies, known as the Attorney General's Guidelines and the Domestic Investigation and Operations Guide, or DIOG.

In recent years, the government has tried to relax all three sets of rules -- and for two of them, this move spurred lively public debate. When President Bush in September 2001 reportedly instructed the CIA to kill Osama bin Laden, a public discussion of whether such activity would violate the assassination ban ensued (and continues today). And, in the wake of revelations that the Bush administration engaged in illegal warrantless surveillance, the country embarked on a nearly three-year long public tug-of-war over the proper scope of the government's foreign intelligence surveillance powers.

The same cannot be said for changes to the Justice Department policies governing the FBI's domestic intelligence-collection powers. In 2002, the Attorney General's Guidelines, for the first time since their inception, permitted the Bureau to spy on religious and political gatherings without probable cause. Another sea change came in 2008, when the Guidelines gave the FBI license to engage in investigations unsupported by any indication of wrongdoing or threat to the national security. Even though these changes represented dramatic expansions of the FBI's powers, Congress was sidelined in the process, and the issue barely registered on the public radar.

Now, these rules have changed once again. Because the rules are implemented through FBI policy guidelines, the Bureau can change them at will -- without external oversight or approval from either the public or Congress. But this neither explains nor excuses the lack of public and congressional engagement. Over the past decade, a range of executive efforts to both define and employ unilaterally its powers -- war powers, detention powers, foreign surveillance powers -- have been met with reactions ranging from outspoken congressional skepticism to public fury.

The rules governing the FBI's domestic investigations may be non-statutory, but they are no less essential to the protection of Americans' rights to privacy, as well as freedom of expression, religion, and association. Congress and the public should insist on playing just as vocal a role in their modification as they have played in other issues defining the scope of executive branch power after 9/11. It's not too late to have a debate on these new authorities -- and, if the consensus is that they go too far, to call for their repeal.

Image credit: REUTERS/Stephen Lam

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Emily Berman serves as Furman Fellow and Brennan Center Fellow at NYU School of Law.

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