Department of Homeland Security Secretary John Kelly recently told an audience that terrorism is “as threatening today” as it was on 9/11. As evidence, he used the oft-repeated statistic that the FBI has active terrorism investigations in all 50 states. This claim has fueled public fear of terrorism because, by and large, the public believes that the FBI must have a reasonable factual basis to open an investigation. It does not. Instead, the standards for opening FBI inquiries are so unreasonably low that directors of the FBI have been reluctant to clearly articulate them in public.
FBI Director James Comey testified on March 20 before the House Intelligence Committee about his agency’s investigation into whether the Trump campaign colluded with the Russian government to influence the 2016 presidential election. Lawmakers asked Comey seven separate times about the FBI’s standard for opening an investigation. One such question came from Rep. Mike Turner, a Republican from Ohio, who asked whether the FBI needed “some action or information”—besides a record that an individual attended a meeting, was paid to appear at a conference, or traveled abroad—before opening an FBI counterintelligence investigation.
Comey responded, saying that there are a “couple different [standards] at play.” Elaborating, he said the FBI needs a “credible allegation of wrongdoing or reasonable basis to believe that an American” is committing a federal crime in order to initiate an investigation.
The standards “at play” that Comey refers to are not set by an act of Congress. They are outlined in the Attorney General Guidelines, a Justice Department rulebook, which sets the parameters for the FBI’s domestic operations. These guidelines—which can be changed at the will of any Attorney General—came into existence in 1976 after the Senate Church Committee investigation into J. Edgar Hoover’s FBI and its abuses of power.
Edward Levi, attorney general under President Gerald Ford, established the first set of guidelines. These rules curtailed the FBI’s oft-abused domestic counterintelligence power. They required agents to articulate a reasonable, factual indication that criminal activity has or may occur to justify informant tasking, mail covers, and other aggressive forms of investigation.
Though the standards outlined in the Levi Guidelines gradually loosened in the three decades to follow, the biggest changes happened after Sept. 11, 2001. The most drastic change came in 2008 with a set of guidelines issued by then-Attorney General Michael Mukasey, who today is an ally of President Trump. The 2008 Guidelines created a new type of investigation called an “assessment.” Assessments permit physical surveillance, database searches, interviews, racial and ethnic mapping, and the recruitment and tasking of informants without any factual or criminal predicate, that is, without any objective basis to suspect the target of the investigation has violated any law, or is likely to in the future. The guidelines place no outside time limit on assessments, though FBI policy requires supervisory review every 30 days. (For more on the 2008 Attorney General Guidelines, check out Domestic Intelligence: New Powers, New Risks, by Emily Berman from the Brennan Center for Justice.)
Agents can open assessments by claiming they have an “authorized purpose,” like preventing crime or terrorism, but such subjective criteria allow agents immense discretion. From 2009 to 2011, the first two years the Mukasey guidelines were in place, the FBI opened over 82,325 assessments, of which only 3,315 found information that warranted opening preliminary or full investigations. This data is even more astonishing given the low evidentiary standard needed to open a preliminary investigation, which can last up to 18 months.
Preliminary investigations require only “information or an allegation,” and contrary to Comey’s testimony, the allegation does not need to be “credible.” A 2010 Inspector General report found the FBI opened preliminary investigations on political advocacy organizations based on mere speculation that the subjects might commit a crime in the future, and the agents themselves often made the required “allegations.” Only full investigations, which allow electronic wiretaps and search warrants, require the reasonable indication of wrongdoing that Comey described in response to Rep. Turner’s question. This too is a relatively low standard, substantially lower than the probable cause necessary to obtain a search warrant or wiretap.
Comey’s recent testimony isn’t the first time an FBI director misstated the standards. Almost seven years earlier, during a 2010 Senate Judiciary Committee hearing, Sen. Richard Durbin (D-Ill.) asked Comey’s predecessor, Robert Mueller, if the FBI required “suspicion of wrongdoing before there is surveillance of an individual or surveillance of a location?”
Mueller answered “yes.” His response contradicted the standards recently set by Mukasey’s guidelines, which were the subject of the hearing. The FBI later sent a letter to Durbin and Sen. Patrick Leahy (D-Vt.) acknowledging that Mueller “misspoke” when he testified that there is “a requirement of ‘suspicion of wrongdoing’ in order for the FBI to engage in surveillance of an individual or location.” Perhaps the FBI directors’ reticence to publicly articulate the true standards for opening an investigation reflects a tacit acknowledgement the standards are unreasonable, which, of course, they are by definition.
The FBI may have substantial evidence that the Trump campaign colluded with the Russian government to influence the U.S. election, just as it may have identified real terrorists to investigate in all 50 states, as Secretary Kelly suggests. But given the low thresholds for initiating cases, the mere fact the FBI has opened investigations is no longer a meaningful statistic. Many of us have long warned that lowering the evidentiary requirements governing FBI investigations would lead to abuses of power that would disparately impact the most vulnerable in our society: immigrants, communities of color, and political dissidents. But now highly politicized FBI investigations are targeting the most powerful people in the country too, affecting our democratic processes in troubling ways. It is past time to hold the FBI accountable to a higher standard. Restoring adequate controls on FBI investigative authorities will protect all Americans from unwarranted scrutiny and will enable effective oversight. Reasonable standards will not harm our security—they will improve it by ensuring law enforcement resources are focused where the facts demonstrate they are needed.