In a July 28 letter addressed to Senate Judiciary committee members Dick Durbin, D-Ill., and Chairman Patrick Leahy, D-Vermont, following the testimony of FBI director Robert Mueller, the agency said that suspicion of wrongdoing was not necessary to launch an investigation against an individual or organization.
“No particular factual predication is required” for the initiation of a preliminary investigation, according to the FBI’s operational guidelines, which are available in a redacted version on the agency’s Web site.
“This is intelligence gathering run amok,” Shahid Buttar, executive director of the Bill of Rights Defense Committee, told India-West. “The FBI is saying it can initiate surveillance without a reason.”
“This is a dragnet way of uncovering information and a dramatic step backwards in the history of civil rights,” he asserted, noting that the fourth amendment of the U.S. Constitution protects individuals against unreasonable searches, and requires probable cause for investigations.
“The FBI has made an admission that we’ve known all along: that the agency is allowed to surveil without any suspicion of criminality,” Nura Maznavi, counsel for the Program to Combat Racial and Religious Profiling at Muslim Advocates, told India-West.
The FBI operates under the Domestic Investigations and Operations Guide, approved during the waning days of the Bush administration.
Muslim Advocates, the American Civil Liberties Union, and the BORDC among other organizations, have claimed that the guidelines use race as a basis for determining whether to initiate surveillance, thereby unfairly targeting Muslims.
But Mueller defended the DIOG at the July 28 Senate Judiciary committee hearings, saying that race and religion could not be used as sole criteria for initiating an investigation of a person or organization.
During the hearing, Durbin asked Mueller, “Is there a requirement of suspicion of wrongdoing before there is surveillance of an individual…or location?”
The FBI director replied that the DIOG requires “a suspicion of wrongdoing” before surveillance is initiated.
Later that day, however, FBI Assistant Director of Congressional Affairs Stephen Kelly sent a note to Durbin and Leahy, saying suspicion of wrongdoing was not required to launch an investigation.
The letter, addressed to Durbin, said, “Upon reviewing the transcript of the hearing today, Director Mueller realized that he misspoke.”
“You asked the director whether there is a requirement of ‘suspicion of wrongdoing’ in order for the FBI to engage in surveillance of an individual or location under the FBI's Domestic Investigation and Operations Guide (DIOG). His answer should have been that there must be a proper purpose for the surveillance,” Kelly said in the letter.
“Suspicion of wrongdoing could be a proper purpose, but it is not the only proper purpose,” wrote Kelly, adding however, that membership in a race or religious group cannot by itself constitute a proper purpose.
Max Gleischman, a spokesman for Durbin’s office, told India-West that the senator had not yet seen the letter. Durbin had been undergoing surgery for a stomach tumor, and was released from the hospital Aug. 14.
Maznavi and Buttar both alleged that the FBI has been initiating investigations in Muslim homes and mosques that they characterized as “general fishing expeditions” that could lead to clues about other members of the community.
The FBI also visits people at their jobs, said Maznavi, adding that such surveillance impacts a person’s reputation at their place of employment.
The agency also frequently sends informants into mosques, alleged Maznavi, pointing to two high-profile cases in Irvine, Calif., and in Florida. Such a practice makes congegrants suspicious of one another and promotes fear within the community, she said.
The FBI does not need a warrant to initiate such interviews or investigations, said Maznavi, adding that people approached by the FBI should ask for proper identification and a business card, and ask to speak only with an attorney present.
FBI spokesperson Paul Bresson, however, told India-West that race alone could not be used as a reason to initiate surveillance and that proper purpose had to be established.
He pointed to a section of DIOG, which states that national security investigations often have ethnic aspects, such as the members of a foreign terrorist organization who are all from the same part of the world, or ethnic gangs.
But a well-founded and investigative purpose must exist before considering racial, ethnic, national origin or religious factors for an investigation, according to DIOG.
When race or religion are relevant factors, they cannot be the only factors, according to the 258-page DIOG.
Several civil liberties organizations have put pressure on the administration to rescind DIOG, but Buttar said Obama has not indicated that he plans to reconsider the guidelines.
“There is a remarkable lack of awareness with which America has gone from being a country that represented freedom and individual rights to the most-monitored and surveilled country in the world,” he said.
The Associated Press provided India-West with a copy of the note from the FBI to Durbin.
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