The guidelines first adopted in the wake of the Church Committee’s reports significantly shifted the Department’s approach to investigating domestic security threats. Those guidelines have been revised and updated in the intervening years to employ more robust protections for civil rights and civil liberties.
The current guidelines prohibit the FBI from engaging in investigative activities directed at U.S. persons “solely for the purpose of monitoring activities protected by the First Amendment or the lawful exercise of other rights secured by the Constitution or laws of the United States.” Additionally, across all of its investigative activities, the FBI must consider “such factors as the effect on privacy and civil liberties … and potential damage to reputation,” and use the “least intrusive method feasible” when carrying out an investigation.
The Attorney General Guidelines and related implementing policy documents, including the FBI Domestic Investigations and Operations Guide, create several other requirements aimed at safeguarding civil liberties. For example:
- They categorize investigatory activities at different levels (assessments, preliminary investigations, and full investigations) and impose specific requirements for the initiation and conduct of each those activities, with the least burdensome requirements attaching to early-stage activities, and more robust showings required to engage in more intrusive activities.
- They make clear that it is “vitally important” in any matter that could create the appearance that an investigation might involve First Amendment or constitutionally protected activity that the FBI document the authorized, well-founded basis for the investigative steps it intends to pursue.
- They provide useful examples of scenarios demonstrating the distinctions between constitutionally protected speech versus advocacy that is intended and likely to incite imminent violence or lawless action.
The Department’s guidelines and the National Strategy for Countering Domestic Terrorism both recognize that, in the United States, espousing an extremist ideology is not a crime, nor is expressing hateful views or associating with hateful groups. But where an individual tries to impose or promote an ideology through acts of violence, often on a mass scale, those acts can be among the most serious crimes we confront as a society. At the Department of Justice, we are committed to protecting all Americans from such attacks, regardless of the motivation. No matter who is behind the violence and intimidation, we will use every tool at our disposal to deter and disrupt domestic terrorists and bring them to justice. ***
We appreciate the opportunity to discuss these issues with you, and we would be pleased to answer your questions.
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