The Justice Department, in a nod to concerns that Americans could be investigated in terrorism cases without evidence of wrongdoing, said Tuesday it will tweak still-tentative rules governing FBI national security cases.
The changes are a small first victory for skeptical lawmakers and civil liberties advocates who want the department to delay the rules until a new president is elected.
Not all planned changes were outlined during a Senate Intelligence Committee hearing, but Assistant Attorney General Elisebeth Cook said they would include limits on the length and kinds of investigative activities used in monitoring demonstrations and civil disorders.
“We do anticipate making changes in response to the comments we have received,” Cook said. Justice Department and FBI lawyers have been briefing lawmakers and interest groups on the rules for the last six weeks.
The short hearing came as three Democrats on the Senate Judiciary Committee demanded “bare-minimum” civil rights protections for U.S. citizens and residents as the FBI expands its power to seek out potential terrorists.
“The Justice Department's actions over the last eight years have alienated many Americans, especially Arab and Muslim Americans,” Democratic Sens. Dick Durbin, Russ Feingold and Edward Kennedy wrote Tuesday to Attorney General Michael Mukasey.
The rules, known as attorney general guidelines, will update how agents conduct interviews as the FBI shifts from a traditional crime-fighting agency to one whose top priority is protecting the U.S. from terrorist attacks.
The Justice Department says the guidelines will merely streamline existing authorities used in criminal and national security investigations. But critics call them a broad expansion of FBI powers that could result in racial, ethnic or religious profiling without any evidence of a crime.
A growing group of House and Senate lawmakers – Democrats and Republicans – has urged Mukasey to release the policy to the public before it takes effect, allowing scrutiny and easing concerns about rule-making done in secret.
Senate Intelligence Committee Chairman Jay Rockefeller, D-W.Va., said after the hearing he remains “skeptical” about how well the guidelines will work, but maintained they “could represent an improvement” over current policy. The panel's top Republican, Sen. Christopher Bond of Missouri, called the guidelines “a remarkable improvement” and said they should be issued immediately.
If Mukasey finalizes the guidelines in the waning days of the Bush administration, Durbin, Feingold and Kennedy demanded that they at least include what they called “bare minimum” safeguards. Those protections include:
Explicitly banning surveillance or other investigative activity based on a suspect's race, ethnicity, national origin or religion. Justice maintains the guidelines do not – and will not – let investigations be opened based only on such factors.
Requiring some factual proof, allegations or other grounds, known as predicate, for opening inquires that fall short of an investigation. The draft guidelines would allow surveillance, interviews and other intrusive activity of Americans without evidence of a crime.
Requiring specific plans to protect information that the FBI collects about U.S. citizens and residents, particularly in gathering foreign intelligence data.