The implementation of new Attorney General Guidelines will help in the Bureau's transformation into an elite national security organization. There are now five sets of rules that govern the FBI's investigative activities in the United States -- to cite just two examples, there are separate guidelines that apply to criminal and national security investigations; these guidelines set forth what agents may and may not do in these investigations, and what approval levels may be required for the use of specific investigative techniques.
Some of these guidelines have been extensively revised in light of the Bureau's post-9/11 mission; most notably, the Bureau's current guidelines for national security investigations were overhauled in 2003. However, the main rules governing the FBI's conduct of criminal investigations, national security investigations, and foreign intelligence collection have continued to exist as separate regimes set forth in separate documents -- one set of guidelines applies to criminal investigations, another set to national security matters, and so on.
As you might expect, this has resulted in different standards and procedures applying to comparable FBI activities, based solely on what label or category is attached to the activity -- a result that makes no sense and which has confused for the agents in the field. For instance, an effort to surveil a suspected terrorist could be reasonably thought of as either a criminal investigation (since engaging in acts in preparation of terrorism is a crime); a national security investigation; or an effort to collect intelligence.
Today, the rules concerning which investigative techniques may be used in such an effort, and what levels of approval are necessary to conduct them, vary depending on how the investigation is labeled. The new consolidated Guidelines aim to eliminate arbitrary differences in the standards and procedures that currently apply to an activity based on how it is characterized -- that is, whether the activity is described as a "national security" or "criminal law enforcement" matter. Under the new guidelines, the investigative steps that the FBI may take in a particular investigation will not be driven by irrelevant factors, such as the type of paperwork the agent uses to open the investigation.
The revisions also aim to eliminate distinctions in the existing rules that make it, in practice, harder to gather information about threats to the national security than it is to conduct "ordinary" criminal investigations. To cite just one example, under the current guidelines, human sources -- "informants" or "assets", as they are commonly called -- can be given affirmative tasks when the purpose is to follow leads and gather information about ordinary criminal activities, but not when the purpose is to gather information about threats to the national security. The new guidelines would provide the same latitude to recruit and task human sources in national security settings as in ordinary criminal investigative settings.
Similarly, the new guidelines would eliminate the artificial distinctions in the way surveillance may be conducted under different sets of guidelines. Right now, under the criminal investigation guidelines, the FBI may conduct physical and photographic surveillance based on a tip. An agent's options are more limited, however, under the national security guidelines. The new guidelines would eliminate this anomaly and others like it, and would ensure that an agent working a national security investigation has the same authorities to conduct surveillance as an agent working a criminal case.
The new guidelines would also provide more consistent rules about agents' access to information. Under the current guidelines, if the FBI receives a tip that a person is associated with organized crime, agents may look at commercial databases, but only those that are available to the public (as opposed to those reserved for law enforcement). But if the tip relates to a threat to the national security, then agents may look at a broader universe of databases. The new guidelines will eliminate this distinction, and ensure that rules about access to information are consistent across categories of investigations.
The new consolidated guidelines will, in short, integrate more completely and harmonize the standards that apply to the FBI's activities. As a result, they will provide the FBI and other affected Justice Department components with clearer, more consistent, and more understandable guidance for their activities. They also will provide to the public in a single document the basic rules governing the FBI's domestic operations.