Published July 02, 2008
WASHINGTON – The Justice Department is denying allegations that soon-to-be revised investigative guidelines for the FBI would allow the bureau to racially profile individuals or otherwise probe a person's activities and background based on his or her ethnicity.
Attorney General Michael Mukasey is in the process of revising investigative guidelines for FBI agents, but his spokesman said Wednesday that an Associated Press report is wrong to conclude that a Muslim or an Arab, for instance, is fair game for a terror investigation simply because of ethnic background or religious preference.
"Nothing contemplated in the draft guidelines affects the use of race guidelines issued by the attorney general in 2003," said Justice Department Director of Public Affairs Brian Roehrkasse, referring to former Attorney General John Ashcroft, who was the last to make alterations to the guidelines following the Sept. 11, 2001, terror attacks.
"Any review and change to the guidelines will reflect our traditional concerns for civil liberties and First Amendment liberties, and our traditional investigative emphasis on using the least intrusive means feasible," Roehrkasse said.
According to The Associated Press, several unnamed law enforcement officials said the proposed policy would enable the FBI to consider race and ethnicity among a number of traits in order to trigger national security investigations.
Noting that President Bush has disavowed targeting suspects based on race or ethnicity, the AP reported that the new policy would let agents open preliminary terror investigations after mining public records and intelligence to build a profile of traits that, taken together, could be deemed suspicious.
Among the factors that could make someone subject to investigation is travel to regions of the world known for terrorist activity or access to weapons or military training, along with the person's race or ethnicity.
The changes would allow FBI agents to ask open-ended questions about activities of Muslim- or Arab-Americans, or investigate them if their jobs and backgrounds should match trends that analysts deem suspect, the law enforcement officials told the wire service.
FBI agents would not be allowed to eavesdrop on phone calls or dig deeply into personal data, such as the content of phone or e-mail records or bank statements, until a full investigation had been opened.
The guidelines focus on the FBI's domestic operations and run about 40 pages long, several officials said. They do not specifically spell out what traits the FBI should use in building profiles.
One senior Justice Department official said agents have been allowed since 2003 to build "threat assessments" of Americans based on public records and information from informants. Such assessments could be used to open preliminary investigations, the official said.
The policy would not require congressional approval.
Mukasey told Justice Department reporters on June 5 that he was revising the bureau's investigative guidelines — the department's definitive set of rules and procedures for its investigative agents.
At the time, he said in the wake of the Sept. 11 attacks, the FBI was given a new mandate to act as an intelligence-gathering entity inside the United States, and the new guideline revisions would be needed to more clearly define that role.
"(These are) regulations that will allow the FBI to transform itself into an intelligence gathering organization," he said.
An aide later told FOX News that the revisions were undertaken to give the FBI more definition between anti-terror intelligence operations and criminal probes intended to gather evidence that will be used in court. FBI agents, the aide said, may need to consult more detailed guidelines should an intelligence operation morph into a criminal probe or vice versa.
Racial profiling, however, is taboo, and has been roundly condemned by Bush, congressional lawmakers, administration officials and federal courts. Any racial profiling would most likely be challenged at almost all levels, even before details of any investigation were made public.
Were such an investigation to net a suspect and were that suspect to be remanded for federal trial, it would be almost certain the FBI's guidelines authorizing profiling would be the first piece of evidence cited by a defense attorney as a means to invalidate the investigation.
Roehrkasse said Wednesday the FBI has a number of existing means to be proactive under both general crimes and national security guidelines. The FBI has relied heavily on open source information — details that can be found through public databases — but is looking for ways to be more flexible and adept at collecting intelligence.
He noted that while the FBI is trying to improve its intelligence collection standards, "It is important to note ... that nothing in the attorney general's guidelines can authorize what is prohibited by any statute or by the Constitution."
FOX News' Ian McCaleb and The Associated Press contributed to this report.