F.B.I. Casts Wide Net Under Relaxed Rules for Terror Inquiries, Data Show
Within months after the Bush administration relaxed limits on domestic-intelligence gathering in late 2008, the F.B.I. assessed thousands of people and groups in search of evidence that they might be criminals or terrorists, a newly disclosed Justice Department document shows.
In a vast majority of those cases, F.B.I. agents did not find suspicious information that could justify more intensive investigations. The New York Times obtained the data, which the F.B.I. had tried to keep secret, after filing a lawsuit under the Freedom of Information Act.
The document, which covers the four months from December 2008 to March 2009, says the F.B.I. initiated 11,667 “assessments” of people and groups. Of those, 8,605 were completed. And based on the information developed in those low-level inquiries, agents opened 427 more intensive investigations, it says.
The statistics shed new light on the F.B.I.’s activities in the post-Sept. 11 era, as the bureau’s focus has shifted from investigating crimes to trying to detect and disrupt potential criminal and terrorist activity.
It is not clear, though, whether any charges resulted from the inquiries. And because the F.B.I. provided no comparable figures for a period before the rules change, it is impossible to determine whether the numbers represent an increase in investigations.
Still, privacy advocates contend that the large number of assessments that turned up no sign of wrongdoing show that the rules adopted by the Bush administration have created too low a threshold for starting an inquiry. Attorney General Eric H. Holder Jr. has left those rules in place.
Michael German, a former F.B.I. agent who is now a policy counsel for the American Civil Liberties Union, argued that the volume of fruitless assessments showed that the Obama administration should tighten the rules.
“These are investigations against completely innocent people that are now bound up within the F.B.I.’s intelligence system forever,” Mr. German said. “Is that the best way for the F.B.I. to use its resources?”
But Valerie E. Caproni, the bureau’s general counsel, said the numbers showed that agents were running down any hint of a potential problem — including vigilantly checking out potential leads that might have been ignored before the Sept. 11 attacks.
“Recognize that the F.B.I.’s policy — that I think the American people would support — is that any terrorism lead has to be followed up,” Ms. Caproni said. “That means, on a practical level, that things that 10 years ago might just have been ignored now have to be followed up.”
F.B.I. investigations are controlled by guidelines first put in place by Attorney General Edward H. Levi during the Ford administration, after the disclosure that the bureau had engaged in illegal domestic spying for decades. After the Sept. 11 attacks, those rules were loosened by Attorney General John Ashcroft and then again by Attorney General Michael B. Mukasey.
Some Democrats and civil liberties groups protested the Mukasey guidelines, contending that the new rules could open the door to racial or religious profiling and to fishing expeditions against Americans.
In 2006, The New York Times reported that the National Security Agency had each month been flooding the bureau with thousands of names, phone numbers and e-mail addresses that its surveillance and data-mining programs had deemed suspicious. But frustrated agents found that virtually all of the tips led to dead ends or innocent Americans.
When the Mukasey guidelines went into effect in December 2008, they allowed the F.B.I. to use a new category of investigation called an “assessment.” It permits an agent, “proactively or based on investigative leads,” to scrutinize a person or a group for signs of a criminal or national security threat, according to the F.B.I. manual.
The manual also says agents need “no particular factual predication” about a target to open an assessment, although the basis “cannot be arbitrary or groundless speculation.” And in selecting subjects for such scrutiny, agents are allowed to use ethnicity, religion or speech protected by the First Amendment as a factor — as long as it is not the only one.
An assessment is less intensive than a more traditional “preliminary” inquiry or a “full” investigation, which requires greater reason to suspect wrongdoing but also allows agents to use more intrusive information-gathering techniques, like wiretapping.
Still, in conducting an assessment, agents are allowed to use other techniques — searching databases, interviewing the subjects or people who know them, sending confidential informers to infiltrate an organization, attending a public meeting like a political rally or a religious service, and following and photographing people in public places.
In March 2009, Russ Feingold, then a Democratic senator from Wisconsin, asked the F.B.I. how many assessments it had initiated under the new guidelines and how many regular investigations had been opened based on information developed by those assessments.
In November 2010, the Justice Department sent a classified letter to the Senate Judiciary Committee answering Mr. Feingold’s question. This month, it provided an uncensored copy of the same answer to The Times as a result of its Freedom of Information Act lawsuit.
F.B.I. officials said in an interview that the statistics represented a snapshot as of late March 2009, so the 11,667 assessment files were generated over a roughly four-month period. But they said they believed that agents had continued to open assessments at roughly the same pace since then.
Some aspects of the statistics are hazy, officials cautioned.
For example, even before the December 2008 changes, the bureau routinely followed up on low-grade tips and leads under different rules. But that activity was not formally tracked as an “assessment” that could be easily counted and compared.
F.B.I. officials also said about 30 percent of the 11,667 assessments were just vague tips — like a report of a suspicious car that included no license plate number. Such tips are entered into its computer system even if there is no way to follow up on them.
Finally, they said, it is impossible to know precisely how many assessments turned up suspicious facts. A single assessment may have spun off more than one higher investigation, and some agents may have neglected to record when such an investigation started as an assessment.
Ms. Caproni also said that even though the F.B.I. manual says agents can open assessments “proactively,” they still must always have a valid reason — like a tip that is not solid enough to justify a more intensive level of investigation but should still be checked out.
But Mr. German, of the A.C.L.U., said that allowing agents to initiate investigations without a factual basis “seems ripe for abuse.” He added, “What they should be doing is working within stricter guidelines that help them focus on real threats rather than spending time chasing shadows.”