Durbin Statement on Announcement of New FBI Guidelines

[WASHINGTON, D.C.] - United States Senator Dick Durbin (D-IL) made the following statement in reaction to the Justice Department’s announcement late Friday afternoon that the Attorney General is revising the guidelines for FBI investigations:


"The American people will react skeptically to the Administration’s efforts to rewrite the rules for FBI surveillance one month before the election in the eighth year of the Bush Administration.”


“The Justice Department claims that they consulted with Congress, but they made only cosmetic and superficial changes and ignored all of the significant changes we suggested, including prohibiting racial profiling and requiring some factual basis for FBI surveillance.”


“These guidelines would permit FBI surveillance of innocent Americans with no suspicion and on the basis of their race, religion or national origin. These guidelines will hinder the FBI’s efforts to protect our national security and threaten the constitutional rights of American citizens.”


Last week, Senators Durbin, Kennedy, and Feingold sent a letter to Attorney General Michael Mukasey suggesting significant revisions to the guidelines. The Senators also urged Mukasey to make the draft guidelines public to allow for more meaningful input. The Senators never received a response to their letter.


The text of the letter appears below:


September 23, 2008

The Honorable Michael Mukasey

Attorney General

U.S. Department of Justice

950 Pennsylvania Avenue, NW

Washington, D.C. 20530


Dear Attorney General Mukasey:


We write to urge you again to make public draft Attorney General guidelines governing FBI investigations and to suggest modifications to the guidelines.


On August 20, we sent you a letter urging you not to sign new Attorney General Guidelines governing FBI investigations until after making the draft guidelines public and allowing a reasonable period of time for members of Congress, experts, and affected minority communities to provide input. We have yet to receive a response to our letter.


In a letter to Senator Patrick Leahy, the Chairman of the Senate Judiciary Committee, Principal Deputy Assistant Attorney General Keith Nelson indicated that you would not sign the guidelines prior to the Senate Judiciary Committee’s FBI oversight hearing on September 17. We welcomed this delay, but are concerned that the Justice Department has made it difficult to consult with experts and provide informed input that could result in substantive changes to the guidelines.


Mr. Nelson stated in his letter that “it is critical that these guidelines become effective on our planned effective date of October 1, 2008 … we will continue to train FBI employees in preparation for the October 1, 2008 implementation date.” The Justice Department’s decision not to delay the effective date of the guidelines and to continue training FBI agents on the draft guidelines suggests that the Department is not seriously considering meaningful changes to the guidelines.


This impression is reinforced by the Department’s refusal to make the draft guidelines publicly available or even to provide a copy of the draft guidelines to members of the Judiciary Committee, as requested by Chairman Leahy and Senator Arlen Specter, the Ranking Member of the Judiciary Committee. In fact, you have only permitted members of Congress, congressional staff and a small number of advocacy groups to review the guidelines for limited periods of time in the presence of Justice Department personnel. In short, while you have said that you welcome our suggestions for revisions to the guidelines, under these conditions it is difficult to provide constructive input.


You and other Justice Department officials have noted that you have the authority to issue new Attorney General guidelines without consulting with Congress or the American people. It is also true that Congress has the authority to block implementation of the new guidelines. The fact that you and Congress have these respective powers does not mean that exercising them is the wisest course of action. The Justice Department has committed not to act unilaterally but rather to consult with Congress and the American people, which we appreciate. In order to fulfill this commitment, we believe it is necessary to make the draft guidelines publicly available.


To do otherwise could hinder the Justice Department’s efforts to protect our national security. It is a fundamental tenet of effective community policing that law enforcement should seek to build trust with the communities they police. However, the Justice Department’s actions over the last eight years have alienated many Americans, especially Arab and Muslim Americans. We are concerned that issuing new Attorney General guidelines without a more transparent process will actually make the FBI’s job more, not less, difficult by exacerbating mistrust in communities whose cooperation the FBI needs.


This concern is heightened because new guidelines that are issued in the eighth year of a two-term Presidency and only one month before an election are likely to be greeted with great skepticism by the American people unless they are a product of bipartisan consultation and consensus. In fact, it would be more constructive to give the next Administration, whether Democratic or Republican, the opportunity to consider the new guidelines before they are issued. While the Justice Department has said it is “critical” that the guidelines take effect on October 1, you have not explained why this is the case. To the contrary, the Justice Department has already revised both the guidelines governing criminal investigations and those governing national security investigations since the September 11th terrorist attacks. It is difficult to understand why you cannot wait four more months until a new Administration takes office to consider additional changes.


If you are nonetheless determined to issue the guidelines prematurely, we would like to take this opportunity to suggest the following modifications, which we believe are necessary, at a bare minimum, to protect the civil liberties of innocent Americans and ensure that limited FBI resources are used effectively. To be clear, these recommendations do not address all of our concerns, and given the conditions placed on our access to the draft guidelines, they are necessarily general.


Revise the guidelines to explicitly prohibit profiling on the basis of race, ethnicity, national origin, and religion. The draft guidelines would apparently allow surveillance of innocent Americans on the basis of race, ethnicity, national origin, or religion.


The draft guidelines state that the FBI’s activities are governed by the Justice Department’s June 2003 “Guidance regarding the Use of Race by Federal Law Enforcement Agencies.” To be clear, this guidance permits racial profiling in national security investigations, stating, “Federal law enforcement officers who are protecting national security … may consider race, ethnicity and other relevant factors to the extent permitted by our laws and the Constitution” [emphasis added].


In contrast, with respect to “traditional law enforcement activities,” the guidance on the use of race states:


In making routine or spontaneous law enforcement decisions, such as ordinary traffic stops, Federal law enforcement officers may not use race or ethnicity to any degree, except that officers may rely on race and ethnicity in a specific suspect description [emphasis added]. This prohibition applies even where the use of race or ethnicity might otherwise be lawful.


We believe the standard for “traditional law enforcement activities” should apply to all FBI activities. The guidance on the use of race states, “Racial profiling in law enforcement is not merely wrong, but also ineffective.” We believe this principle applies with equal force to counterterrorism activities. We note that in response to a question from Senator Feingold at the September 17th hearing, FBI Director Mueller said he “absolutely” agreed that it would be ineffective and counterproductive for the FBI to engage in racial profiling in national security and foreign intelligence investigations.


Revise the guidelines to require some factual predicate, however minimal, as the basis for initiating an “assessment.” The draft guidelines would allow the FBI to use a broader range of more intrusive surveillance techniques on innocent Americans with no indication of wrongdoing. We are concerned that allowing FBI agents to engage in techniques like long-term physical surveillance and pretext interviews to investigate Americans with no indication of wrongdoing will lead to fishing expeditions that waste valuable resources and damage the reputations of innocent people.


Include in the guidelines specific protections for United States persons whose information is collected, retained and shared, particularly in the course of foreign intelligence collection. We are concerned about the extent to which the FBI may be permitted to gather or use information about Americans under the rubric of foreign intelligence gathering when there is no suspicion of a crime, threat to national security, or any other wrongdoing. The guidelines currently contain only an admonition that the FBI should conduct such investigations openly and consensually to the extent possible. This is inadequate, and explicit protections for Americans should be included in the guidelines and not relegated to FBI policies.


The Justice Department has cited the “clear-eyed and bipartisan” 9/11 Commission in support of the draft guidelines. However, the 9/11 Commission concluded that, “The burden of proof for retaining a particular governmental power should be on the executive, to explain (a) that the power actually materially enhances security and (b) that there is adequate supervision of the executive’s use of the powers to ensure protection of civil liberties.” We do not believe that the Justice Department has met this burden for the new Attorney General guidelines. We again urge you to make the draft guidelines public and work with Congress and the American people to ensure the guidelines will enhance the FBI’s vital efforts to protect our national security while respecting the constitutional rights of all Americans.




Richard J. Durbin

U.S. Senator


Edward M. Kennedy

U.S. Senator


Russell D. Feingold

U.S. Senator