In the Spring of 2009, members of the Senate Judiciary Committee sent written questions to FBI Director Robert Mueller regarding various topics. Ranking Judiciary Committee members Patrick Leahy and Jeff Sessions received responses to these questions on September 15, and those responses were made public late last week, notably after the Senate Judiciary Committee passed a bill reauthorizing the Patriot Act while gutting civil liberties reforms. It turns out that there were some rather juicy tidbits which, if they had been publicly released before the vote, might have shifted public attention and activated public opinion.
Question: A December 15, 2008 letter from General Counsel Valerie Caproni to Chairman Leahy stated that physical surveillance only occurs in public places where “there is no constitutionally protected expectation of privacy.” I am concerned that physical surveillance in churches, mosques, and of peaceful protest will chill protected First Amendment activity. Do the AGG and/or the DIOG address this?
Response: The FBI takes great care to avoid chilling First Amendment activities. Both the AG Guidelines and the DIOG address this issue, with the DIOG repeatedly stressing that investigative activity cannot be based solely on conduct protected by the First Amendment and that no FBI activity should occur for the sole purpose of monitoring the exercise of First Amendment rights.
Any investigative matter that involves a religious or political institution is considered a “sensitive investigative matter” (SIM). All SIMs, whether they are assessments or predicated investigations, require legal review and approval by a Special Agent in Charge (SAC). Before approving a SIM, the SAC must consider: the nature of the violation or threat; the significance of the information sought to the violation or threat; the probability that the proposed course of action will be successful; the risk of public exposure; if there is such a risk, the adverse impact or the perception of an adverse impact on civil liberties and public confidence; and the risk to the national security or the public welfare if the proposed course of action is not approved (i.e., the risk of doing nothing).
The DIOG treats surveillance conducted during assessments (which is the only change the new AG Guidelines make to the rules that have long governed this sort of physical surveillance) differently than it treats surveillance conducted during predicated investigations. In order to conduct physical surveillance during an assessment, the agent proposing the surveillance must obtain supervisory approval, indicating in the request the purpose and objective of the surveillance. In order for the supervisor to approve the physical surveillance, the supervisor must find that: 1) there is an authorized purpose and objective for the assessment; 2) the assessment is based on factors other than the exercise of First Amendment rights or the race or ethnicity of the subject; 3) the assessment constitutes an appropriate use of personnel and resources; 4) the surveillance is likely to further an objective of the assessment; 5) surveillance is the least intrusive method that is reasonable under the circumstances; and 6) the anticipated value of the assessment justifies the surveillance. Approved surveillance is limited to a 72-hour period, although that period may be repeated based on all the same findings.
That’s the entire FBI response to Senator Feingold’s question. I haven’t cut a phrase, a word or a syllable. The answer can be boiled down:
1. Yes, the FBI is engaging in surveillance of churches and other places of worship.
2. Our surveillance of churches and other places of worship is for purposes of investigation and also for “assessment.”
3. FBI Agents only put churches under surveillance
a) if watching their First Amendment protected activity isn’t the FBI’s only goal [also see here]
b) if a supervising FBI agent approves it
c) if other methods we’re considering would be more intrusive than surveillance.
Has your church been scheduled for its FBI “assessment”?