briefing on proposed changes to FBI Nat Sec Invest. Guidelines

* Consolidated Attorney General Guidelines – Background Briefing (9/13/08)

I don’t have a copy of the draft Consolidated AG Guidelines to circulate, but those who are interested in the topic might want to review the recent background briefing posted here:

http://www.usdoj.gov/opa/pr/2008/September/08-opa-814.html

This exchange highlights the effort to permit investigators acting under the rubric of intelligence rather than criminal investigation to employ three techniques at the “threat assessment” stage: recruiting human sources (or tasking existing sources); pretextual interviewing (i.e., interview by FBI agent either without disclosing affiliation or without disclosing the real subject of interest); and ordinary physical surveillance.

The briefing also discusses the nature of the “threat assessment” stage in intelligence investigations, emphasizing that the idea is to permit these and other basic procedures to be employed to gather intelligence for legitimate counterterrorism and counterintelligence purposes but without individualized predication.  Put another way, the briefing frames the change in terms of the ongoing effort to enable FBI agents to function as intelligence collectors, not just criminal investigators.

The briefing also has a useful discussion of internal accountability mechanisms, including audit teams and other compliance mechanisms adopted after the National Security Letter disputes of recent years.

By Robert M. Chesney

Robert M. Chesney is Charles I. Francis Professor in Law at UT-Austin School of Law. Chesney is a national security law specialist, with a particular interest in problems associated with terrorism. Professor Chesney recently served in the Justice Department in connection with the Detainee Policy Task Force created by Executive Order 13493. He is a member of the Advisory Committee of the American Bar Association's Standing Committee on Law and National Security, a senior editor for the Journal of National Security Law & Policy, an associate member of the Intelligence Science Board, a non-resident senior fellow of the Brookings Institution, a term member of the Council on Foreign Relations, and a member of the American Law Institute. Professor Chesney has published extensively on topics ranging from detention and prosecution in the counterterrorism context to the states secrets privilege. He served previously as chair of the Section on National Security Law of the Association of American Law Schools and as editor of the National Security Law Report (published by the American Bar Association's Standing Committee on Law and National Security). His upcoming projects include two books under contract with Oxford University Press, one concerning the evolution of detention law and policy and the other examining the judicial role in national security affairs.

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