Safire: J. Edgar Mueller

Under the police powers it operated under last year, and with the lawful cooperation of a better-managed C.I.A., an efficiently run F.B.I. might well have prevented the catastrophe of Sept. 11. That is the dismaying probability that Congressional oversight (it should be called undersight) will begin to show this week.

To fabricate an alibi for his nonfeasance, and to cover up his department's embarrassing cut of the counterterrorism budget last year, Attorney General John Ashcroft — working with his hand-picked aide, F.B.I. Director "J. Edgar" Mueller III — has gutted guidelines put in place a generation ago to prevent the abuse of police power by the federal government.

They have done this deed by executive fiat: no public discussion, no Congressional action, no judicial guidance. If we had only had these new powers last year, goes their posterior-covering pretense, we could have stopped terrorism cold.

Not so. They had the power to collect the intelligence, but lacked the intellect to analyze the data the agencies collected. The F.B.I.'s failure to absorb the Phoenix and Minneapolis memos was compounded by the C.I.A.'s failure to share information it had about two of the Arab terrorists in the U.S. who would become hijackers (as revealed by Newsweek today).

Thus we see the seizure of new powers of surveillance is a smokescreen to hide failure to use the old power.

Ashcroft claims he is merely allowing the feds to attend public events, or to surf the Internet, which "even a 12-year-old can do." That's a masterful deceit: under the former anti-abuse guidelines, of course the F.B.I. could send an agent into a ballpark, church or political rally. All it needed was "information or an allegation whose responsible handling required some further scrutiny" — not even "probable cause" to investigate a crime, but a mere tip about possible wrongdoing.

Same with surfing the Net or reading a newspaper or watching television news. Often that's how F.B.I. agents in the field have been alerted to a potential crime, and could then open a preliminary inquiry. If a lead showed "reasonable indication of criminal activity," agents could initiate a full investigation without going through Washington headquarters — hiring informants, staking out a house, seeking wiretap and search warrants.

But under the new Ashcroft-Mueller diktat, that necessary hint of potential criminal activity is swept away. With not a scintilla of evidence of a crime being committed, the feds will be able to run full investigations for one year. That's aimed at generating suspicion of criminal conduct — the very definition of a "fishing expedition."

Not to worry, say governmental perps — we won't collect data in dossiers on individuals or social or political clubs or church groups — the sort of abuse that suppressed dissent in "the bad old days."

Just because the F.B.I. brass hats are presently computer illiterate, do they think the public is totally ignorant of the ability of today's technologists to combine government surveillance reports, names on membership lists, and "data mining" by private snoops to create an instant dossier on law-abiding Americans?

Consider the new reach of federal power: the income-tax return you provided your mortgage lender; your academic scores and personnel ratings, credit card purchases and E-ZPass movements; your political and charitable contributions, charge account at your pharmacist and insurance records; your subscription to non-mainstream publications like The Nation or Human Events, every visit to every Web site and comment to every chat room, and every book or movie you bought or even considered on Amazon.com — all newly combined with the tickets, arrests, press clips, full field investigations and raw allegations of angry neighbors or rejected lovers that flow into the F.B.I.

All your personal data is right there at the crossroads of modern marketing and federal law enforcement. And all in the name of the war on terror.

This is not some nightmare of what may happen someday. It happened last week. Jim Sensenbrenner, chairman of House Judiciary, said the removal of restraints made him "queasy"; Pat Leahy of Senate Judiciary is too busy blocking judges to object. Some sunshine libertarians are willing to suffer this loss of personal freedom in the hope that the Ashcroft-Mueller rules of intrusion may prevent a terror attack. They won't because they're a fraud.

Please, exactly, what is unconstitutional about these new guidelines?
Okay, I've read the guidelines. Have you? I'm ready to discuss them.
As to what is "unconstitutional about these new guidelines"...that is what our discussion should reveal.
While there is nothing stating outright "these new guidelines are unconstitutional", nor should one expect there to be such an open admission, I do find some of it alarming.

To start matters off, I find this distrubing in light of the statements like undesirable individuals may be neded to work undercover. The screening process precludes many "unsavory individuals" from being used as CIs.
THE ATTORNEY GENERAL'S GUIDELINES REGARDING THE USE OF CONFIDENTIAL INFORMANTS
II. REGISTERING A CONFIDENTIAL INFORMANT
A. SUITABILITY DETERMINATION
1. Initial Suitability Determination
Prior to utilizing a person as a CI, a case agent of a JLEA shall complete and sign a written Initial Suitability Report and Recommendation, which shall be forwarded to a Field Manager for his or her written approval. In completing the Initial Suitability Report and Recommendation, the case agent must address the following factors (or indicate that a particular factor is not applicable):
a. the person's age;
b. the person's alien status;
c. whether the person is a public official, law enforcement officer, union official, employee of a financial institution or school, member of the military services, a representative or affiliate of the media, or a party to, or in a position to be a party to, privileged communications (e. g., a member of the clergy, a physician, or a lawyer);
d. the extent to which the person would make use of his or her affiliations with legitimate organizations in order to provide information or assistance to the JLEA, and the ability of the JLEA to ensure that the person's information or assistance is limited to criminal matters;
e. the extent to which the person's information or assistance would be relevant to a present or potential investigation or prosecution and the importance of such investigation or prosecution;
f. the nature of any relationship between the CI and the subject or target of an existing or potential investigation or prosecution, including but not limited to a current or former spousal relationship or other family tie, and any current or former employment or financial relationship;
g. the person's motivation in providing information or assistance, including any consideration sought from the government for this assistance;
h. the risk that the person might adversely affect a present or potential investigation or prosecution;
i. the extent to which the person's information or assistance can be corroborated;
j. the person's reliability and truthfulness;
k. the person's prior record as a witness in any proceeding;
l. whether the person has a criminal history, is reasonably believed to be the subject or target of a pending criminal investigation, is under arrest, or has been charged in a pending prosecution;
m. whether the person is reasonably believed to pose a danger to the public or other criminal threat, or is reasonably believed to pose a risk of flight;
n. whether the person is a substance abuser or has a history of substance abuse;
o. whether the person is a relative of an employee of any law enforcement agency;
p. the risk of physical harm that may occur to the person or his or her immediate family or close associates as a result of providing information or assistance to the JLEA; and
q. the record of the JLEA and the record of any other law enforcement agency (if available to the JLEA) regarding the person's prior or current service as a CI, Cooperating Defendant/ Witness, or Source of Information, including, but not limited to, any information regarding whether the person was at any time terminated for cause.

I also found this rather disturbing...
Lawful, Warrantless Monitoring of Verbal Communications
II. NEED FOR WRITTEN AUTHORIZATION
A. Investigations Where Written Department of Justice Approval is Required
A request for authorization to monitor an oral communication without the consent of all parties to the communication must be approved in writing by the Director or Associate Director of the Office of Enforcement Operations, Criminal Division, U. S. Department of Justice, when it is known that:
(1) the monitoring relates to an investigation of a member of Congress, a federal judge, a member of the Executive Branch at Executive Level IV or above, or a person who has served in such capacity within the previous two years;
(2) the monitoring relates to an investigation of the Governor, Lieutenant Governor, or Attorney General of any State or Territory, or a judge or justice of the highest court of any State or Territory, and the offense investigated is one involving bribery, conflict of interest, or extortion relating to the performance of his or her official duties;
(3) any party to the communication is a member of the diplomatic corps of a foreign country;
(4) any party to the communication is or has been a member of the Witness Security Program and that fact is known to the agency involved or its officers;
(5) the consenting or nonconsenting person is in the custody of the Bureau of Prisons or the United States Marshals Service; or
(6) the Attorney General, Deputy Attorney General, Associate Attorney General, any Assistant Attorney General, or the United States Attorney in the district where an investigation is being conducted has requested the investigating agency to obtain prior written consent before conducting consensual monitoring in a specific investigation.
In all other cases, approval of consensual monitoring will be in accordance with the procedures set forth in part V. below.
Lords and serfs? I'm going to call that "The Mole Clause".

And what do you think of this...
THE ATTORNEY GENERAL'S GUIDELINES ON FEDERAL BUREAU OF INVESTIGATION UNDERCOVER OPERATIONS
C. INVESTIGATIONS
(1) A general crimes investigation may be initiated by the FBI when facts or circumstances reasonably indicate that a federal crime has been, is being, or will be committed. The investigation may be conducted to prevent, solve, or prosecute such criminal activity.
The standard of "reasonable indication" is substantially lower than probable cause. In determining whether there is reasonable indication of a federal criminal violation, a Special Agent may take into account any facts or circumstances that a prudent investigator would consider. However, the standard does require specific facts or circumstances indicating a past, current, or future violation. There must be an objective, factual basis for initiating the investigation; a mere hunch is insufficient.
We don't need no stinkin' probable cause! We just need "reasonable indication".

Or this from the same place...
A racketeering enterprise investigation may be initiated when facts or circumstances reasonably indicate that two or more persons are engaged in a pattern of racketeering activity as defined in the Racketeer Influenced and Corrupt Organizations Act (RICO). However, the USA PATRIOT ACT (Public Law 107-56) expanded the predicate acts for RICO to include the crimes most likely to be committed by terrorists and their supporters, as described in 18 U. S. C. 2332b( g)( 5)( B). To maintain uniformity in the standards and procedures for criminal intelligence investigations relating to terrorism, investigations premised on racketeering activity involving offenses described in 18 U. S. C. 2332b( g)( 5)( B) are subject to the provisions for terrorism enterprise investigations rather than those for racketeering enterprise investigations.
A terrorism enterprise investigation may be initiated when facts or circumstances reasonably indicate that two or more persons are engaged in an enterprise for the purpose of:
(1) furthering political or social goals wholly or in part through activities that involve force or violence and a federal crime,
(2) engaging in terrorism as defined in 18 U. S. C. 2331( 1) or (5) that involves a federal crime, or
(3) committing any offense described in 18 U. S. C. 2332b( g)( 5)( B). As noted above, criminal intelligence investigations premised on a pattern of racketeering activity involving an 18 U. S. C. 2332b( g)( 5)( B) offense are also treated as terrorism enterprise investigations.
Which has this later on...
While no particular factor or combination of factors is required, considerations that will generally be relevant to the determination whether the threshold standard for a terrorism enterprise investigation is satisfied include, as noted, a group's statements, its activities, and the nature of potential federal criminal law violations suggested by its statements or activities. Thus, where there are grounds for inquiry concerning a group, it may be helpful to gather information about these matters, and then to consider whether these factors, either individually or in combination, reasonably indicate that the group is pursuing terrorist activities or objectives as defined in the threshold standard. Findings that would weigh in favor of such a conclusion include, for example, the following:
Snip...(2) Apparent ability or intent to carry out violence or other covered activities: The enterprise manifests an apparent ability or intent to carry out violence or other activities within the scope of 18 U. S. C. 2331( 1) or (5) or 2332b( g)( 5)( B), e. g.:
(i) by acquiring, or taking steps towards acquiring, biological agents or toxins, toxic chemicals or their precursors, radiological or nuclear materials, explosives, or other destructive or dangerous materials (or plans or formulas for such materials), or weapons, under circumstances where, by reason of the quantity or character of the items, the lawful purpose of the acquisition is not apparent;
(ii) by the creation, maintenance, or support of an armed paramilitary organization;
(iii) by paramilitary training; or
(iv) by other conduct demonstrating an apparent ability or intent to injure or intimidate individuals, or to interfere with the exercise of their constitutional or statutory rights.

Did I mention this...
Lawful, Warrantless Monitoring of Verbal Communications
The Fourth Amendment to the United States Constitution, Title III of the Omnibus Crime Control and Safe Streets Act of 1968, as amended (18 U. S. C. §2510, et seq.), and the Foreign Intelligence Surveillance Act of 1978 (50 U. S. C. §1801, et seq.) permit government agents, acting with the consent of a party to a communication, to engage in warrantless monitoring of wire (telephone) communications and oral, nonwire communications. See United States v. White, 401 U. S. 745 (1971); United States v. Caceres, 440 U. S. 741 (1979). Similarly, the Constitution and federal statutes permit federal agents to engage in warrantless monitoring of oral, nonwire communications when the communicating parties have no justifiable expectation of privacy. 2 Because such monitoring techniques are particularly effective and reliable, the Department of Justice encourages their use by federal agents for the purpose of gathering evidence of violations of federal law, protecting informants or undercover law enforcement agents, or fulfilling other, similarly compelling needs. While these techniques are lawful and helpful, their use in investigations is frequently sensitive, so they must remain the subject of careful, self-regulation by the agencies employing them.
The sources of authority for this Memorandum are Executive Order No. 11396 (" Providing for the Coordination by the Attorney General of Federal Law Enforcement and Crime Prevention Programs"); Presidential Memorandum (" Federal Law Enforcement Coordination, Policy and Priorities") of September 11, 1979; Presidential Memorandum (untitled) of June 30, 1965, on, inter alia, the utilization of mechanical or electronic devices to overhear nontelephone conversations; the Paperwork Reduction Act of 1980 and the Paperwork Reduction Reauthorization Act of 1986, as amended; and the inherent authority of the Attorney General as the chief law enforcement officer of the United States.
Isn't that "Special!

I personally "voluntarily consent" to nothing and do state so!
I find that much of these new guidelines remove any trace of accountability to the upper echelon of the agencies. Many of the decisions have been placed with midlevel functionaries and allows "the big dogs" to say "I wasn't informed of that", just like it has been.
JMO.

Ashcroft is a lying, anti-constitutional freak when he says this only allows agents to "surf the internet" or "attend public events".
Ah yes...the infamous "surf the internet" or "attend public events" statement.

General Crimes, Racketeering and Terrorism Investigations
D. OTHER AUTHORIZED ACTIVITIES
Current counterterrorism priorities and the advent of the Internet have raised a number of issues which did not exist in any comparable form when the last general revision of these Guidelines was carried out in 1989 – a time long preceding the September 11 attack's disclosure of the full magnitude of the terrorist threat to the United States, and a time in which the Internet was not available in any developed form as a source of information for counterterrorism and other anti-crime purposes. Part VI of these Guidelines is designed to provide clear authorizations and statements of governing principles for a number of important activities that affect these areas. Among other things, Part VI makes it clear that the authorized law enforcement activities of the FBI include:
(i) operating and participating in counterterrorism information systems, such as the Foreign Terrorist Tracking Task Force (VI. A( 1));
(ii) visiting places and events which are open to the public for the purpose or detecting or preventing terrorist activities (VI. A( 2));
(iii) carrying out general topical research, such as searching online under terms like "anthrax" or "smallpox" to obtain publicly available information about agents that may be used in bioterrorism attacks (VI. B( 1));
(iv) surfing the Internet as any member of the public might do to identify, e. g., public websites, bulletin boards, and chat rooms in which bomb making instructions, child pornography, or stolen credit card information is openly traded or disseminated, and observing information open to public view in such forums to detect terrorist activities and other criminal activities (VI. B( 2));
(v) preparing general reports and assessments relating to terrorism or other criminal activities in support of strategic planning and investigative operations (VI. B( 3)); and
(vi) providing investigative assistance to the Secret Service in support of its protective responsibilities (VI. B( 4)).

The Candyman can.
"There will be no free rides on the Internet for those who traffic in child pornography." John Ashcroft

Nothing new under the sun. While busting child porn producers and distributors is admirable IMO liberties are being taken too.
Burning the forest to get a few diseased trees.

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