WASHINGTON – The Justice Department is considering letting the FBI investigate Americans without any evidence of wrongdoing, relying instead on a terrorist profile that could single out Muslims, Arabs or other racial and ethnic groups.
Law enforcement officials say the proposed policy would help them do exactly what Congress demanded after the Sept. 11, 2001, attacks: root out terrorists before they strike.
Although President Bush has disavowed targeting suspects based on their race or ethnicity, the new rules would allow the FBI to consider those factors among a number of traits that could trigger a national security investigation.
Currently, FBI agents need specific reasons – like evidence or allegations that a law probably has been violated – to investigate U.S. citizens and legal residents. The new policy, law enforcement officials told the Associated Press, would let agents open preliminary terrorism investigations after mining public records and intelligence to build a profile of traits that, taken together, were deemed suspicious.
Among the factors that could make someone subject of an investigation is travel to regions of the world known for terrorist activity, access to weapons or military training, along with the person’s race or ethnicity.
More than a half-dozen senior FBI, Justice Department and other U.S. intelligence officials familiar with the new policy agreed to discuss it only on condition of anonymity, either because they were not allowed to speak publicly or because the change is not yet final.
The change, which is expected later this summer, is part of an update of Justice Department policies known as the attorney general guidelines. They are being overhauled amid the FBI’s transition from a traditional crime-fighting agency to one whose top mission is to protect America from terrorist attacks.
“We don’t know what we don’t know. And the object is to cut down on that,” said one FBI official who defended the plans.
Another official, while also defending the proposed guidelines, raised concerns about criticism during the presidential election year over what he called “the P word” – profiling.
If adopted, the guidelines would be put in place in the final months of a presidential administration that has been dogged by criticism that its counterterror programs trample privacy rights and civil liberties.
Critics say the presumption of innocence is lost in the proposal.
The FBI will be allowed to begin investigations simply “by assuming that everyone’s a suspect, and then you weed out the innocent,” said Caroline Fredrickson of the American Civil Liberties Union.
Attorney General Michael Mukasey acknowledged the overhaul was under way in early June, saying the guidelines sought to ensure regulations for FBI terror investigations don’t conflict with ones governing criminal probes. He would not give any details.
“It’s necessary to put in place regulations that will allow the FBI to transform itself … into an intelligence gathering organization in addition to just a crime solving organization,” Mukasey told reporters.
The changes would allow FBI agents to ask open-ended questions about activities of Muslim- or Arab-Americans, or investigate them if their jobs and backgrounds match trends that analysts deem suspect.
FBI agents would not be allowed to eavesdrop on phone calls or dig deeply into personal data – such as the content of phone or e-mail records or bank statements – until a full investigation was opened.
The guidelines focus on the FBI’s domestic operations and run about 40 pages long, several officials said. They do not specifically spell out what traits the FBI should use in building profiles.