WASHINGTON Nearly 40 years ago, the FBI was roundly criticized for investigating Americans without evidence they had broken any laws. Now, critics fear the FBI may be gearing up to do it again.
Tentative Justice Department guidelines, to be released this summer, would let agents investigate people whose backgrounds and characteristics match the traits of terrorists.
Law enforcement officials say the proposed policy would help them do exactly what Congress demanded after 9-11: root out terrorists before they strike.
Currently, FBI agents need specific reasons — like evidence or allegations that a law has probably been violated — to investigate U.S. citizens and legal residents. The new policy, law enforcement officials told The Associated Press, would let agents open preliminary terrorism investigations after mining public records and intelligence to build a profile of traits that, taken together, are deemed suspicious.
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Among the factors that could make someone subject to an investigation is travel to regions of the world known for terrorist activity, access to weapons or military training and the person's race or ethnicity.
More than a half-dozen senior FBI, Justice Department and other U.S. intelligence officials familiar with the new policy agreed to discuss it only on condition of anonymity, either because they were not allowed to speak publicly or because the change is not final.
The change, which is expected this summer, is part of an update of Justice Department policies known as the attorney general guidelines. They are being overhauled amid the FBI's transition from a traditional crime-fighting agency to one whose top mission is to protect America from terrorist attacks.
"We don't know what we don't know. And the object is to cut down on that," said one FBI official who defended the plans.
Another official, while also defending the proposed guidelines, raised concerns about criticism during the presidential election year over what he called "the P word" — profiling.
If adopted, the guidelines would be put in place in the final months of a presidential administration that has been dogged by criticism that its counterterrorism programs trample privacy rights and civil liberties.
Critics say the presumption of innocence is lost in the proposal. The FBI will be allowed to begin investigations simply "by assuming that everyone's a suspect, and then you weed out the innocent," said Caroline Fredrickson of the American Civil Liberties Union.
Attorney General Michael Mukasey acknowledged that the overhaul is under way.
"It's necessary to put in place regulations that will allow the FBI to transform itself ... into an intelligence gathering organization in addition to just a crime solving organization," Mukasey said in June.
Critics compare the new guidelines to the FBI's now defunct COINTELPRO, an operation under Director J. Edgar Hoover in the 1950s and 1960s to monitor and disrupt groups with communist and socialist ties.
Before it was shut down in 1971, the domestic spying operation had expanded to include civil rights groups, anti-war activists, the Ku Klux Klan, state legislators and journalists.
Among the FBI's targets were Martin Luther King Jr., Malcolm X and John Lennon, along with members of black extremist groups, Fidel Castro sympathizers and protesters.
The new proposal is "COINTELPRO for the 21st century," said Barry Steinhardt of the American Civil Liberties Union. "But this is much more insidious because it could involve more people. In the days of COINTELPRO, they were watching only a few people. Now they could be watching everyone."