Using loopholes it has kept secret for years, the FBI can in certain circumstances bypass its own rules in order to send undercover agents or informants into political and religious organizations, as well as schools, clubs, and businesses.
If the FBI had its way, the infiltration loopholes would still be secret. They are detailed in a mammoth document obtained by The Intercept, an uncensored version of the bureau’s governing rulebook, the Domestic Investigations and Operations Guide, or DIOG. The 2011 edition of the book, which covers everything from wiretapping to how to read Miranda rights, was made public in redacted form thanks to a lawsuit brought by civil liberties groups. Beneath the FBI’s redaction marks were exceptions to rules on “undisclosed participation” that could be easy to exploit.
The FBI rules show a significant level of oversight when it comes to looking into “sensitive” groups — namely, those with religious, political, or academic affiliations. For instance, if an undercover agent wants to pose as a university student and take classes, or if an FBI handler wants to tell an informant to attend religious services — two examples straight out of the rulebook — he or she must obtain a supervisor’s approval and attest both to the operation’s importance and to its compliance with constitutional safeguards.
But all those rules go out the window if an agent decides the group is “illegitimate” or an informant spies on the group of his or her own accord.
The FBI insists that supervisors regularly review agents’ work to make sure these exceptions aren’t being misused, and that the extra steps and approvals detailed in the guide are proof that the bureau has voluntarily limited its authorities beyond what it believes to be the legal minimum.
An FBI spokesperson said that a provision in the DIOG encourages agents to err on the side of considering something sensitive if there is any doubt.
“That discretion will be part of our regular case review. Agents will be asked, ‘Hey, why isn’t that a sensitive investigative matter?’” the spokesperson said.
But civil rights groups still worry that the FBI has made use of precisely these kinds of loopholes, silently undermining cherished freedoms enshrined after a dark chapter of FBI history: the COINTELPRO program in the 1950s and ’60s, when the FBI spied on, harassed, and tried to discredit leftists, civil rights leaders, and anti-war protestors. The exposure of COINTELPRO led to a famous Senate investigation and to institutional reform. The bureau adopted new rules and stricter oversight. Since 9/11, however, these hard-won protections have been weakened. What the public has not known is by exactly how much.
“Going into political gatherings, houses of worship — these are First Amendment-protected activities,” said Farhana Khera, the executive director of Muslim Advocates, a group that originally sued to have the rulebook released, particularly over concerns about the issue of undercover infiltration. “We believed the DIOG to be a broadening of their authority to go into those spaces.”
The FBI sees it exactly the other way.
“These are a voluntary narrowing of our authorities. We learn from history and try to get better,” the spokesperson said.
The FBI openly acknowledges that some of its undercover operations can be “intrusive” and carry “a greater risk to civil liberties,” and therefore that they may require higher levels of approval or legal review. The requirements for a particular operation vary depending on how intimately the FBI employee or informant will be involved with the group, and what kind of group it is.
The FBI distinguishes between “sensitive undisclosed participation,” in political, religious, media, or academic groups, and “non-sensitive undisclosed participation,” in groups “such as a business or a club formed for recreational purposes.” (Even this basic distinction was previously redacted.)
The once-censored rules explain that for non-sensitive groups, a supervising agent must sign off if the plan is for an FBI agent to infiltrate a group in order to gain information or as part of an investigation. An informant doing the same thing does not require extra approval. If the participation of the FBI agent or informant will influence the group’s activities, then the head counsel for the division needs to review the plan. If the FBI’s presence is specifically likely to influence the group’s First Amendment-protected activity (if, as the guide specifies, the FBI participant plans to steer the group’s agenda on “social, religious, or political” issues), then the FBI’s office of general counsel must get involved, and perhaps senior FBI officials.
The requirements for infiltrating a group considered sensitive are even more stringent: The FBI agent must get approval both from a supervisor and from the head lawyer of his or her division, while also notifying a committee that oversees FBI operations. And if the intention or likelihood is that this infiltration will influence a sensitive group’s exercise of its First Amendment rights, then the FBI director must sign off.
These rules appear to offer layers of oversight. But they only kick in when certain conditions are met. The policy guide gives agents considerable discretion in deciding whether infiltrating an organization constitutes “undisclosed participation” at all — and therefore, whether it requires the extra approvals.
For instance, none of the rules apply if a foreign government operates the organization, or if the FBI “reasonably” believes the organization to be acting on behalf of a foreign power, so long as its U.S.-based members are mostly foreigners. And the rules only apply to groups the FBI deems “legitimate.” The redacted definition of a “legitimate” group is one “formed for lawful purposes” and whose “activities are primarily lawful.” This would exclude obvious criminal networks but could also exclude activist groups if an agent decides that their “primary purpose” is to hold protests involving unlawful acts.
“An organization whose primary purpose is to engage in destruction of property as a means to bring public attention to commercial activities that harm the environment is also not a legitimate organization within the meaning of this definition because its primary purpose is to engage in criminal conduct,” the guide says. “On the other hand, an organization that seeks to bring attention to a social or political cause by engaging primarily in lawful protest or advocacy, but also some acts of civil disobedience, is a legitimate organization.”
Michael German, a former FBI agent who is a fellow with the Brennan Center for Justice at New York University School of Law, said that such language gives agents wiggle room to justify themselves if they are found to have been improperly investigating an organization.
“It’s not that you can’t ever investigate a legitimate organization, it’s just that it requires an additional level of oversight because of the history of abuse,” German said. “So do we really want to have agents parsing the language of what’s legitimate and what isn’t legitimate without that oversight?”
Classifying constitutionally protected activities as “illegitimate” is not a distant possibility. There have been many recent examples of the FBI twisting or ignoring the rules in order to investigate political or religious groups. In 2010, to take just one example, a Justice Department inspector general found that the FBI had violated policy in investigating groups including the Catholic Worker, Greenpeace, and People for the Ethical Treatment of Animals. Documents released last year showed that the bureau tracked Keystone Pipeline protesters without proper authorization. The FBI has also generated legal controversy with its use of informants in mosques.
The definition of what constitutes “participation” is also flexible in the FBI’s reading.
It was previously known that FBI agents and informants could go to public events without identifying themselves and attend up to five meetings of an organization without triggering the undisclosed participation rules — although sending an informant or employee to a religious service always requires a supervisor’s approval, the guide states.
Another loophole allows that if an informant volunteers information about a group without having been asked to collect it, FBI agents don’t have to worry about whether the informant obtained the information through undisclosed participation.
And although the rules require legal review if the FBI employee’s or informant’s participation is intended to influence a group, what constitutes “influencing” is narrowly defined: A source or undercover employee “simply voting or expressing an opinion” does not count. When it comes to First Amendment concerns, the FBI’s activities must “substantially affect the agenda of the organization” in order to raise flags.
There are certain caveats that go in a more restrictive direction: For instance, the rules specify that joining a mailing list or following a group on Twitter does constitute “participation,” and that agents are supposed to err on the side of caution when determining whether or not a group is “legitimate” or whether having undercover agents participate in group activities is “sensitive.”
Tarek Ismail, senior staff attorney with CLEAR, an initiative at the City University of New York that works with communities affected by counterterrorism policies, said that the breadth of these exceptions elaborated in the DIOG demonstrates “broad rules created and then chipped away.”
He added that the rules’ apparent flexibility made sense of the experiences of many of his clients. “There’s a disconnect between what’s on paper and what’s actually done,” Ismail said. “We see significant departures from these rules in our cases, but clearly it’s not because these rules are hard to live with.”
The DIOG, despite being hundreds of pages of dense bureaucracy, actually documents a loosening of the standards enacted to rein in the FBI after COINTELPRO and other scandals involving the bureau under Director J. Edgar Hoover.
“The baseline that we started from in the 1970s was that there were no rules governing the FBI,” said Emily Berman, a law professor at the University of Houston.
The fallout from COINTELPRO resulted in new guidelines from the attorney general that reined in domestic intelligence gathering by requiring that agents’ investigations be focused on actual criminal activity. Yet in the decades since — and especially after the 9/11 attacks — the bureau’s mandate has expanded again, beyond the realm of crime fighting and toward intelligence gathering in the name of combating terrorism.
The FBI, which has no single statute governing its activities, has operated under a series of guidelines issued by attorneys general over the years. The DIOG first came out in the last months of the Bush administration in 2008, implementing guidelines from then-Attorney General Michael Mukasey. Mukasey emphasized intelligence sharing and the retention of information “regardless of whether it furthers investigative objectives in a narrower or more immediate sense.” He cited the “historical evolution of the FBI” after the 9/11 attacks toward the elimination of the traditional wall between foreign intelligence and domestic law enforcement.
At the time, civil liberties groups were alarmed that Mukasey’s rules, known as the “Attorney General’s Guidelines for Domestic FBI Operations,” broadened the authorities of the FBI to collect and retain more data than ever before, and allowed for “assessments,” in which agents could probe for information without evidence of wrongdoing. Some of the tactics authorized for assessments were quite invasive, allowing for physical surveillance, interviews, and the tasking of informants to collect information.
Muslim Advocates, with other groups, sued to have the whole rulebook released without redactions. They argued that the redacted portions couldn’t be very sensitive given that the FBI had invited advocacy groups to review portions of the guide at its offices before implementation. But in 2011, a judge disagreed and allowed the redactions to remain. Although portions of the DIOG have been updated since then — the FBI recently posted a new version from 2013, also redacted — the 2011 guide remains the baseline document.
Some of the redactions are inconsistent, with identical text covered in one place and not in another. Most of the text beneath the redactions simply spells out designations of authorities and necessary signoffs for particular activities.
“Now being able to look at what was redacted, it’s hard to understand what the justification would have been” for withholding the information, German said, “other than to prevent having to have a public dialogue about whether these changes to the FBI’s authority were appropriate.”
“This is something that the public has a right to know, what policies the government is operating under, particularly when they’re using authorities that have both a long history and recent history of abuse,” said German. “Anytime you come across some sort of improper activity, you can’t say it’s improper unless you know what the rules are.”