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15 September 2008
|Date: Mon, 15 Sep 2008 07:00:07 -0500 (CDT)
From: "U.S. Department of Justice" <usdoj[at]govdelivery.com>
Subject: Current Press Releases Update
Department of Justice
FOR IMMEDIATE RELEASE
Saturday, September 13, 2008
TDD (202) 514-1888
Transcript of Background Briefing with Department of Justice Officials on Consolidated Attorney General Guidelines
Friday, September 12, 2008
MR. ROEHRKASSE: As I mentioned, were going to have our two senior Justice Department officials make some brief comments to give you a better sense of the rationale and the process that led up to this as well as some of the changes that these proposed guidelines currently contain. So with that Im going to turn it over to them, and I would appreciate if you could hold your questions until they wrap up.
SENIOR FBI OFFICIAL: Good afternoon, everybody. And let me just start by answering the question that presumably people are asking, which is: Why are you doing this? And let me also say, because I know there has been some speculation about the timing of this, that it was somehow tied either to the new FISA bill or the new 12 Triple-3 [Executive Order 12333] or something else. That is not accurate.
Approximately 18 months ago, the FBI had a meeting with DOJ and asked DOJ to consider whether it makes sense to combine three basic sets of guidelines, and the three basic sets that we were most interested in having combined are whats called the General Crimes Guidelines, which were promulgated in 2002; the National Security Investigative Guidelines, or NSIG, which were promulgated in 2003; and a set of guidelines that are called the Supplemental Foreign Intelligence Guidelines, which were promulgated in 2006.
That last group of guidelines is classified and has never been released, and it deals with a very narrow sliver of the work of the FBI, which is the collection of foreign intelligence in response to requirements from what used to be the DCI, now the DNI. And as actually put into effect by the Bureau, its further narrowed to foreign intelligence requirements that are purely positive FI [foreign intelligence].
The way foreign intelligence is defined in 12-Triple 3 [Executive Order 12333] and in FISA, foreign intelligence includes things having to deal with foreign governments, but also having to do with international terrorism groups.
So carve out international terrorism and carve out any sort of foreign intelligence thats really counter-intelligence, so our ability to counter the actions of foreign governments to compromise our employees so well spy for them, or theyve sent people here to spy on us.
So thats counter-intelligence, and you got international terrorism. Everything about foreign intelligence will be viewed as purely foreign intelligence. So it is, to use an example, what do the Venezuelans intend relative to oil production? Its a matter of foreign intelligence because its the actions of a foreign government; its important to our government to know this for diplomatic purposes and foreign affairs type purposes. It would be valuable to know, for example, that Venezuela is going to cut oil production by 50 percent in order to wreck our economy. Just a hypothetical. So that little sliver of FI [foreign intelligence]
So there are three sets of Guidelines: General Crimes, which is all things criminal; National Security Investigative Guidelines, which is counter-terrorism and counter-intelligence; and then the foreign intelligence, Supplemental Foreign Intelligence Guidelines, that is, this little sliver of positive foreign intelligence.
We asked DOJ to combine these three sets of guidelines for several reasons. First off, we believed that certain restrictions in the NSIG, or the National Security Guidelines, were actively interfering in our ability to do what we believe Congress, the 9/11 Commission, WMD Commission, and the President and the American people want us to do, which is to become an intelligence-driven agency, that is not simply waiting for things to fall on our doorstep, but actually looking proactively for threats within the country, whether theyre criminal threats, counter-intelligence threats, or counter-terrorism threats.
So that was one reason. That second reason was: We found some
of the distinctions between what you could do if you were investigating a
regular federal crime and what you could do if you were investigating a threat
to the national security to be illogical and inconsistent with good public
policy. So we didnt see the public policy rationale for the
differences and what could be done under one set of guidelines versus the
So from a compliance standpoint, having agents, which depending on what case they were investigating a different set of guidelines applies, is very problematic from a compliance standpoint. We wanted one set of rules that we can drill into our employees heads, so that theyre hard-wired into everything they do and everything they see, and they know exactly what the rules of the road are. So we didnt like these inconsistent rules for that reason as well.
So why did we think that they were interfering with our ability to be an intelligence-driven agency? Let me give you a hypothetical, which I hope will help illustrate this.
Our sense is: To be an intelligence-driven agency, what we need to do is be asking questions. What is the threat within your environment? What is in your environment? So lets say, today or a year ago or two years ago, if the question was asked of a special agent in charge of an FBI field office, Do you have a problem of theft of high technology and theft of classified information within your domain? Their answer would be, Our Chinese squad has three cases against Chinese nationals. Okay, so weve got a little bitty problem. And some other SAC would say Weve got 50 cases. So theyve got a bigger problem.
Wrong. One has three cases, one has 50 cases. You dont have a clue the size of the problem in either office, because they could be missing things. Right? Because they have to have something to open the case, but if nobody tips them off or nobody tells them anything, they dont have the predication necessary to open the case, so they dont know theyve got a threat.
So what were saying is, Youre not answering the question. Dont tell me how many cases you have. Go out and find out whether the threat is present.
So again using that as the hypothetical, do you have a problem with theft of technology? What do we want our agents to do? And what do we want them to be able to do under the National Security Guidelines? And what, I think, do the American people want us to do?
So we wanted to say, Okay, Im in a field office. I need to know what are the research universities in my area. What kind of classified contracts do they have, or classified grants do they have? So what sort of high technology are they developing?
Based on the intelligence that we have from the rest of the intelligence community, what is country X? And now, no, Im not defaming the Chinese, but lets just use the Chinese for these purposes. Lets say hypothetically the PRC is interested in stealing technology from the U.S. So what technology are they interested in? And lets say theyre interested in submarine technology and bomber technology, or something.
Well, come to find out Im a SAC, and I find out Ive got a state university thats a technical university thats got very, very substantial research grants to do some of the basic avionics for the bomber. Okay, well, that means theyre a vulnerability, because if youre the Chinese and you want that technology, that may be some place you want to target to send students. You want to sponsor students and send them there.
Okay, so then you might want to say, Okay, well, what does our student population look like? Lets say hypothetically what our SAC finds out is, he goes to the university, they do liaison with the university. The university is willing to tell them these things, we get State Department records. We find out there are 200 students from the PRC, and there are 200 students from another country that also has a history of stealing technology from the United States.
What can they do at that point, under existing guidelines? They are limited to essentially operating overtly. So they can talk to existing human sources, and they can ask them: Do you know anything about whats going on at the school? Do you know any of these students? But if you dont have any sources that know any of the students, youre stopped from a human source perspective. You cant recruit a new source or task him, or task any of your existing sources against any of these students, because recruiting and tasking sources under the National Security Gguidelines is prohibited unless youve got a preliminary investigation open.
And right, now all we know about these John Does, John and Suzie Does, are that theyre from a particular foreign country, and theyre going to a university that has substantial grants for developing classified technology. Thats not enough to open an investigation.
To open an investigation you have to have information or an allegation that the person is or may be a terrorist or a spy or a criminal. We dont have that. All we know is theyre from a foreign country, right? So we dont have enough. So we need to narrow down and get some more information.
We cant task an informant. What else can we not do? We cant do a pretext interview. Lets say for whatever reason we dont think that we can go overtly to the dean of the school or the professor that has the grant. For whatever reason. We cant go and do an interview without telling them who we are and why were there. Because pretext interviews are prohibited under the National Security Guidelines, unless you have a file open, unless you have an investigation open.
The third thing we cant do is not particularly applicable to this scenario, because I cant imagine how we would use it, but that is surveillance. We couldnt do any physical surveillance with the ability to figure out of these 400 kids, which ones might have been sent here to remove technology from this country.
So our concern was, and our agents concern was, without those techniques, without the ability specifically to task sources, to engage in pretext interviews if appropriate, and to engage in physical surveillance, if appropriate -- physical surveillance now, not wire taps, this is just pure physical surveillance, just watching someone -- they say we cant answer the question that you want us to answer; we cant respond to the question, Do we have that threat in our domain, other than with reference to the cases that we have?
So our view of that was: That is interfering with our ability do what we think the American people want us to do, which is to be a proactive, intelligence-driven agency, because we cant gather the intelligence necessary in order to make those judgments.
So again, it interfered with our ability to do what we thought were supposed to do.
The second is that we viewed these distinctions as being illogical as a matter of public policy. So as a matter of public policy, consider the following. If we get a tip -- an unsubstantiated, we dont know where it came from, just over the transom tip -- that theyre dealing drugs from Joes Bar and Grill. So its a criminal case. Under the Criminal Guidelines, we could check our sources to find out what we know about Joes Bar and Grill. Lets say we know nothing. We can send a good drug source, somebody whos been helpful to us in drug cases before. We can say, Hey, pal, go into Joes Bar and Grill, see if theyre dealing drugs. That would be acceptable.
We could go in and do a pretext interview of the bartender, not tell him really why were there, but ask questions that would be appropriate to figure out whether there is drug dealing going on in the bar.
The third thing we could do is we could sit outside the bar in a car and watch the foot traffic to see if its consistent with this bar not just selling liquor but also selling drugs.
We could do all of that, if what were trying to figure out is if theyre dealing drugs.
On the other hand, if what the tip is -- and admittedly this is unlikely -- the tip is theyre raising money for Hezbollah in the bar. We cant task a source to go in, we cant engage in a pretext interview, and in this case again surveillance wouldnt be particularly helpful, but you cant sit outside the bar to see if theres anything about the foot traffic that would either tend to corroborate that tip or tend to cut against the tip.
So as a matter of public policy, the question from us is: Why as a matter of policy do we want to make it more difficult for agents trying to resolve national security information, and national security threats, than we do to resolve your garden variety criminal threat? So as a matter of public policy we didnt see that these distinctions made sense.
The third reason that we were concerned, and again that we asked them to reconsider, is the issue of compliance. We need to be able to train our workforce to one set of standards, and for it to be consistent to the largest extent possible.
There are some very minor ways in which there are still distinctions based on what youre doing, but its very minor. From our perspective, thats important because the way our agents work, you may have been an agent and you were on a narcotics squad or a stolen car squad; then you get promoted, and you get promoted and you become a supervisor over a terrorism squad. You now have an entire set of rules that govern you. Or vice versa. That again, from a compliance standpoint in getting our agents to really be sort of foursquare hard-wired on all of these rules, you just cant really do it when youve got these different sets of rules. And particularly, when the differences arent intuitively obvious.
And I would challenge anybody here to say its intuitively obvious why you can task a source to go into the bar to find out about drug dealing, but you cant task a source to go into the bar to find out about terrorist financing or other sorts of national security threats.
So it was those three factors really that led us to make the request to DOJ. They agreed, as I said, about 18 months ago to do this as -- I mean I thought it was going to not be something that could be turned around in a month, and, I mean, I knew it was going to be difficult to get these things together and to get them to make sense, and to work through all the policy issues. It did, they finally came pretty much to rest a couple of months ago. Weve been since that time doing our socialization of them and working through talking about them. As you guys know, we briefed Congressional staff, we started that two or three weeks ago, had several sessions with them. We just this morning sat and talked to privacy groups, and civil liberties-type groups. We went to NAACP and ACLU and those types of groups.
And that brings us to where we are today, which is September 12, and were hopefully coming to the end, and they will be signed soon. We have gotten, I think, valuable suggestions from every group weve sat and talked to them about, and allowed to read the Guidelines and make suggestions. We anticipate that there will be changes made.
Im sure they told you this when they handed you the draft. The draft that you got is not what will ultimately be signed. Im pretty sure there will be changes made to that in response to suggestions and comments that weve received.
SENIOR DOJ OFFICIAL: Let me just take about five minutes,
if I could to walk through just a couple of areas in particular that we
havent changed, and also talk about oversight, because the new guidelines
reflect a different approach to oversight.
So what weve done in the past has been oversight through two primary means. One was notice. So at the opening of a preliminary investigation or at the renewal of a preliminary investigation -- this is an example -- a notice would go to what used to be OIPR [Office of Intelligence Policy and Review] and is now a part of the new National Security Division.
The other primary way that oversight was accomplished was when an attorney was asked to file a pleading. So for example, if they had to go to the FISA court to get a FISA tool, the attorney is going to ask difficult questions, theyre going to have to sign the pleading, and theyre going to make darn sure that theyve got a solid pleading go into the court. But you can do a lot on the national security side without going to the FISA court.
So in some ways it was over-inclusive, because it doesnt really tell you a lot to just get a mechanical notice of the opening or renewal of a preliminary investigation. And there are tools, notably national security letters, where if youre depending on having to do the oversight through a court pleading, thats also not going to happen.
So with the stand-up of the National Security Division, as well as the IG reports, we have done a tremendous amount of thinking about oversight. So the FBI has restructured in certain ways and now has a dedicated compliance unit. The National Security Division has a dedicated oversight component as well.
What do those designated oversight components do? The primary means of oversight are very intensive on-site audits of all national security and foreign intelligence cases. So instead of relying on a notice or perhaps a report once a year, they go in, they look beginning to end, and they say, What was your purpose in doing this? How did you do it? And, you know, why were you making the choices that you did along the way? So its much more comprehensive.
The Guidelines also permit the Assistant Attorney General for National Security to ask for any categories of information from the FBI that relate to national security, or to foreign intelligence collection.
So lets take an example where a team goes in, and the audit teams are not just attorneys from the National Security Division, they also involve the employees of our primary offices. They go in and they notice, for example, that in a particular field office, you know, certain techniques are being used at certain times. And you know, the sense with the audit team may be, Im not sure why theyre using that technique at a given time. You know, is this something thats happening just in this field office, or is this something thats happening across the FBI? So the NSD Assistant Attorney General can say, We want to know across the field offices how many times is this technique being used.
So at the end of the day we think its going to be a much more effective means of oversight. But it is a change. We have eliminated certain reporting requirements and certain notice requirements. So there is no longer a requirement at the opening of a preliminary investigation or the renewal of a preliminary investigation that you send notice over to the National Security Division. There still are notice requirements for full investigations of United States persons, full investigations that are responsive to foreign intelligence requirements, or the requirements that are set by the DNI and are pure foreign intelligence and sensitive matters.
So sensitive matters would be religious figures or organizations, political figures or organizations, or media figures and organizations. Just for all of you to know that if it does involve the media, the notice requirements are still in force.
So we also thought it was important that the Guidelines reflect what we think is going to be a much more effective means of oversight.
There are a couple of things that I think there have been various questions about is what weve been considering and what we havent been considering, and what is really new here. The basic premise, the basic construct, is that you have a set of investigations -- and these are preliminary investigations and full investigations -- so what we call in the Guidelines predicated investigations, that construct is not new.
For example, on the national security side, it was a new concept to have what were called threat assessments. So this is a level of activity that is prior to the opening of a formal investigation. That was new in 2003; this is not anything different now. What is different are the techniques that are available at the assessment level. We think we will be able to make a better use of the assessment level activity, because we will have access to different techniques. And the changed techniques are the physical surveillance, which had been available if you were investigating under general crimes, but not under national security; recruiting and tasking of sources, which again had been available if it was general crimes, but not national security; and then pretext interviews.
So on the general crimes side, there was no prohibition on doing a pretext interview, but there was one on the national security side.
So those are the big-ticket changes here. But the basic construct remains the same. It is simply the methods and the techniques we have available to us to do this type of information gathering, this type of intelligence gathering that happens before you open a predicated investigation.
The FBI has historically trained on, and then was directed to use, a least-intrusive means approach. So if you have available to you a range of tools that are more or less intrusive, you should start with the least intrusive. That remains the case in these guidelines.
Our guidelines have historically contained language about respect for our first amendment activities and the exercise of other rights. That language remains in force in these consolidated Guidelines; there is no change there.
In 2003 Attorney General Ashcroft issued guidance regarding the use of race by federal law enforcement agencies. That remains in full force. There is no intention of backing away from the guidance that was set forth in 2003.
The White House communications memo. There was, I think, some concern about the level of communication between the White House and the Department of Justice. Attorney General Mukasey issued a memorandum late last year, that will remain in force. It is not being changed. There are always going to be difficult questions when you are talking about the FBI operating domestically.
The three that we found to be the most challenging as we went through this process: First, the use of race, religion and ethnicity. These are difficult questions. When is it appropriate, if at all, to use race or ethnicity as a factor? These are difficult questions, but not new questions. And we believe that the balance that was struck in 2003 was the appropriate balance, and were not changing it.
You know, we can talk about specific examples and reasons why its simply not a feasible alternative to say that race or religion could never be a factor. You know, on the criminal side if you have a suspect description that includes a description, for example, that it was a short white gentleman running away from the bank, well, its permissible and relevant to consider, then, the fact that the suspect description was of a white gentleman. If the question is: Is there a presence of Aryan brotherhood here? Well, that is an organization that uses race as a factor in its membership. So it would be appropriate.
But we are not changing our basic approach to when race, religion or ethnicity might be appropriate to take into consideration.
The second most difficult area, we think, is the pure foreign intelligence. Because what you are potentially talking about there are the lawful activities of United States persons. It could be. So this is in an area where we do need to tread lightly and will full sensitivities.
As our FBI Senior Official has explained, the concept of foreign intelligence encompassing lawful activities is not a new one. For example, if you look at the definition of foreign intelligence thats been in FISA since 1978, it includes foreign affairs, and foreign intelligence could very well be lawful activities. So how have we approached that?
Well, what weve done is put into place higher level approval requirements for opening of foreign intelligence, full foreign intelligence investigations. There are reporting requirements. So on an annual basis for each full investigation that is open, that is foreign intelligence collection, there will be reports given to the National Security Division. Notice requirements did remain in place. And there is an admonition in the Guidelines that you should work openly and consensually where possible, when you are dealing with the lawful activities of United States persons. So this is over and above the least intrusive means approach.
Finally, the final set of questions that weve spent the most time on, and we do think have the greatest level of sensitivities are: Well, what sort of approval levels do you need to have at the assessment level, especially when youre using some of these new techniques?
Heres where weve landed on that, which is: We do not require supervisory approval level as a matter of course in assessments. There are good reasons for this in the guidelines themselves.
For example, if you get a poison pen letter about someone, do we really want an agent to have to ask for supervisor approval before they do a Google search? No. So it doesnt make sense to automatically require supervisor approval level before you even take basic steps. But by policy, we are taking very seriously the fact that some of these techniques should and do require supervisory approval.
So the fact that its not in the guidelines is not the end of the story; there are policies that will be equally binding upon the FBI, upon their agents. The basic construct is Constitution, laws, guidelines and policies.
We cannot by guideline change statutory requirements or change the Constitution. What the Guidelines are, are the Attorney Generals determination of when in a particular investigation it is appropriate for the FBI to consider taking certain steps. You still need to go to court to get a court order if you need a warrant. These are completely separate questions.
Guidelines with respect to policies. Policies cannot be more flexible than the guidelines themselves. The policies are in many cases more restrictive than the guidelines. But it is a one-way ratchet as you go that direction, from the Constitution over to policies.
I think that was all I wanted to cover. Questions?
SENIOR FBI OFFICIAL: Were defining it in terms of -- the issue is identifying yourself as an FBI agent, and correctly stating the purpose of the interview. So if either of those isnt the case, then it is a pretext interview.
QUESTION: Okay. But what is a pretext interview? What is the interview?
SENIOR FBI OFFICIAL: Why would you do it?
QUESTION: What is it?
SENIOR FBI OFFICIAL: Oh, Im sorry, the pretext. The pretext is, for instance -- let me give you a for instance, because that might make it -- a pretext interview would be the following. Were sending someone into the bar to find out if they are dealing drugs. Rather than saying to the bartender, Hi, Im Sally Doe from the FBI, we got a tip that you were dealing drugs here. Is that true? That would be an overt interview; we are correctly identifying ourselves and were telling them the purpose of the interview. A pretext interview might be, Hey, can you give me a beer? Do you know anybody whos got any blow? Have you heard of anybody around here? Or: What do you know about your across-the-street neighbor? Ive heard that theyre selling drugs there? That would say, Ive heard your neighbor is a problem, but we dont care about the neighbor. What we care about is whats going on in the bar. Okay?
So youre not correctly stating the purpose of the interview for reasons that are of legitimate investigative purpose. You believe if you tell the legitimate reason of the interview, youre either going to, you know, burn the inquiry before you ever get started, or you think youre more likely to get the information that youre really looking for if youve misdirected their attention.
SENIOR FBI OFFICIAL 2: A technique pioneered by reporters everywhere.
QUESTION: I was going to say --
SENIOR FBI OFFICIAL: So before you all get on your high horse about pretext interviews, just remember.
QUESTION: But the bottom line is you dont have to identify yourself as an FBI agent. Youre just fact-finding -- an official.
SENIOR FBI OFFICIAL: Correct.
SENIOR FBI OFFICIAL 2: But its an either or. Either you identify yourself as an FBI agent and you dont make it obvious what youre really looking for; or you dont, and then you do.
SENIOR FBI OFFICIAL: And some interviews are done completely overtly. Hi, Im so-and-so from the FBI. Im here to talk to about X.
QUESTION: I dont see that term under the authorized
methods. The other things you talked about, the physical surveillances
under the authorized methods.
QUESTION: So when you said, interview to request information from members of the public and private entities, youre specifically authorizing us to a do a pretext interview?
SENIOR DOJ OFFICIAL: We are eliminating the previous restriction on doing pretext interviews, yes.
QUESTION: Even though --
QUESTION: You know, you said that when it comes to using race as a factor in doing investigations, that doesnt change. However, Im wondering whether -- I mean obviously the fact that an investigation is a national security investigation, or is a terrorism investigation, puts it in a different category, right? Doesnt it automatically put it into a different category that perhaps gives it more urgency and allows more leeway? Or not?
SENIOR FBI OFFICIAL: Well, again that was our point. As a matter of public policy, the existing guidelines actually work the exact opposite.
SENIOR FBI OFFICIAL: They are more restrictive on the national security side for the most part than on the criminal side. There are some little bitty things that are a little different.
QUESTION: So even when it comes to using race as a factor?
SENIOR DOJ OFFICIAL: Oh, Im sorry, I missed the first part of it.
QUESTION: Thats what I was asking.
SENIOR FBI OFFICIAL: No. For race it is -- I mean the way the memo works is on the national security side, race -- it cant be just race.
SENIOR FBI OFFICIAL: You got to have something else.
QUESTION: You were saying that there is no change, though, in the use of race. Yesterday versus whatever --
SENIOR DOJ OFFICIAL: Thats right.
QUESTION: The 2003 guidelines that President Bush issued on racial and ethnic profiling laid out narrow circumstances. That was the word that they used. Narrow circumstances where there was a direct threat. It gave examples of, you know, you get a tip that a handful of Middle Eastern men are going to be boarding a flight in Los Angeles.
SENIOR DOJ OFFICIAL: Yes, thats right --
QUESTION: And then you can look at the manifest and see if there are Middle Eastern men -- but --
SENIOR DOJ OFFICIAL: Yes.
QUESTION: But this seems to take it to a more routine level. If you can use it in a threat assessment, if you can use race and ethnicity, for instance, in your Joes Bar and Grill as part of the threat assessment, Im assuming that if youre following a lead in Hezbollah, you could look to see whether most of the people in the bar are middle eastern.
SENIOR FBI OFFICIAL: Well, only if theres a logical connection between what youre looking for and race and ethnicity.
QUESTION: There is obviously a logical connection between Hezbollah and Middle Easterners.
SENIOR FBI OFFICIAL: Agreed, but if it was --
QUESTION: Doesnt this take the 2003 guidelines from a narrow use of racial and ethnic factors into the routine threat assessments?
SENIOR DOJ OFFICIAL: It does not and it should not. We have had these assessments since 2003 and they have worked in tandem with the use of race guidance since then as well.
QUESTION: But the 2003 guidelines said that there had to be I think the phrase was a direct threat. And it gave the sort of urgent example of the middle easterners boarding a plane.
SENIOR DOJ OFFICIAL: Here it gave two separate examples of when is it appropriate to, for example, subject individuals of a certain ethnicity to additional scrutiny, and it gave a border example. And there had to be discrete information. It is not enough to have some sort of generalized concern. You cannot simply because someone is a perceived ethnicity subject them to additional scrutiny. And the examples in the guidance on the use of race have to do with boarding airplanes. That is not going to change.
You still have to have something. There has to be a direct and logical nexus. If for example, we are looking at ELF or ALF, which as far as we know have absolutely no criteria that relate to gender, ethnicity, race, religion, any of that, were not going to be looking at gender, race, ethnicity, religion. There is no reason for us to be taking it into account even as a factor, much less as the reason to investigate or the reason to do the assessment.
But if we are looking for the presence of La Costa Nostra, if we are looking for the presence of Aryan brotherhood, if we are looking for the presence of organizations that do have criteria that we are aware of, then it would be permissible to take it into account. But it is not going to be enough to open an investigation. And the same general approach will not change.
QUESTION: Ive got two questions. Pardon me, Im a little bit slow on this. But in the bar scenario, I mean somebodys holding a fundraiser in there for a designated terrorist organization -- obviously a potential crime.
SENIOR FBI OFFICIAL: I think we could open a file if we saw that. We could open an investigation if we saw that.
QUESTION: You could open an investigation, and so you could do the pretextual interviews and all that.
SENIOR FBI OFFICIAL: Right.
SENIOR FBI OFFICIAL: If we had enough to open the preliminary investigation.
QUESTION: So youre not totally handcuffed in terms of your ability to gather information. You had that information. It just depends upon whether you want to pursue it as a criminal case or a national security case.
SENIOR FBI OFFICIAL: No, but you changed the facts. You changed the facts substantially.
QUESTION: How did I change -- Im sorry?
SENIOR FBI OFFICIAL: Because you changed the facts from an anonymous tip that says theyre raising money for a terrorist group in this bar, to We see that theres a fundraising party going on.
QUESTION: Okay. Lets just say the tip is theyre raising --
SENIOR DOJ OFFICIAL: Its just a tip, so its of unknown credibility, just a tip.
SENIOR FBI OFFICIAL: We cannot open a file at that point, we dont have enough.
SENIOR DOJ OFFICIAL: Its not an indication or an allegation that -- you have to have some sort of subject of the investigation.
SENIOR FBI OFFICIAL: And we dont view an anonymous tip when you dont know the credibility of it -- we sort of view the predication requirement for a PI, which is an information or allegation, it has to have some substance beyond just hearing it, because otherwise we could open a preliminary investigation on every poison pen.
QUESTION: Okay. So under the National Security Guidelines, you couldnt send anyone in there to do pretext?
SENIOR FBI OFFICIAL: Under?
SENIOR DOJ OFFICIAL: Under the National Security Guidelines.
SENIOR FBI OFFICIAL: We could under the General Crimes Guidelines.
QUESTION: Right. Because
youve gotten -- just because of that tip.
SENIOR DOJ OFFICIAL: Yes.
QUESTION: Okay. Can I just go back to the university setting involving the Chinese?
SENIOR DOJ OFFICIAL: Before you do that, can I make one important point, which has also I think been a source of some confusion.
SENIOR DOJ OFFICIAL: When I talked about the basic structure between having assessments, then having predicated investigations, the standard for opening a preliminary investigation is identical to what it was under general crimes or national security. We are not changing the requirement, the predication requirement, necessary to open a preliminary investigation. There is no change there. I think there has been some confusion about that.
QUESTION: The university scenario you were describing dealt with the -- situation, right. Lets change the facts a little bit. Lets say it was a small university in some rural part of California, and it came to be known that they had their first Arab-American students registering there, and it turned out maybe they had relatives from the Middle East, okay? And would that be enough under these proposed guidelines to be able to do an assessment or not?
SENIOR FBI OFFICIAL: What are we trying to assess?
QUESTION: Hmm, well they have --
SENIOR FBI OFFICIAL: Whats your goal. Well, let me -- Let me make the point, which is assessments dont just float. Okay? We dont have these like floating assessments that say, Oh, were going to assess these people, were going to assess those people. The assessment has to be tied to an authorized purpose, and the authorized purpose has to be articulated.
SENIOR FBI OFFICIAL: So the agent has to say, I want to do an assessment to determine whether -- it could be phrased a couple of different ways -- I want to do an assessment to determine if I have within my area of responsibility a problem of Iranian agents who are involved in unlawful technology transfers. That would be one purpose. If thats his purpose, unless youre Middle Easterners are from Iran, its not applicable. Because looking at those students would not be a logical way for him to answer, and it wouldnt be responsive to the purpose that hes articulated.
SENIOR FBI OFFICIAL: Okay? Now on the other hand, you could come up with a different purpose where it might be, where it might be relevant. So it all comes back to, well, whats the assessment? Now if its a person, if you focus down on a person, so lets say its (reporter)s hypothetical or the one from the memo that five Middle Eastern males have boarded the flight. And what we find is there are ten males on the flight, all of whom are traveling on passports issued from the Middle East. We may very well have threat assessments on those ten people, in which case were looking at those ten people.
And our purpose is -- the articulated purpose is: resolve the issue. Is this one of the people that is the subject of the information, and is the information accurate?
But its all tied back to the purpose. I mean thats -- there have been a couple of questions about assessments that -- my concern is that you all are sort of viewing these as just kind of free-floating. Its an assessment. Thats not right.
Think of the purpose of the assessment as like the purpose of an investigation; that is, it has to be articulated. So we open an investigation. We want to know: is this guy stealing and chopping cars? Thats the purpose of our investigation.
And so what were going to be doing in that investigation is all designed to determine that. Now we may get side-tracked and find out hes not chopping cars, instead hes doing something else. But thats the purpose and thats our lodestar, and everything that we do in that investigation is going to be directed towards fulfilling that mission.
On the assessment, you also have to articulate a purpose, and it has to be an authorized purpose within our mission. Everything we do in that assessment is going to be measured by that purpose. So if its outside the purpose, if were just running amuck, cant do that, got to come back and say, Whats the purpose? Why are you looking? What are you trying to determine?
And everything you do has to be directed toward that purpose.
So in your example, if our purpose is that we want to find out if they are, you know, tied to al-Qaeda in Saudi Arabia, then everything we do relative to those has to be directed toward that purpose. And you know, if its whatever they want to do at that point. But it has to be directed toward that.
QUESTION: And the assessments are articulated by --
SENIOR FBI OFFICIAL: By the agent whos doing it, and it has to be reviewed and approved by a supervisor. And depending on if its a sensitive matter -- if its going to implicate politicians, media, or religious, or actually as a matter of FBI policy, academia, and then you need much higher approval levels.
QUESTION: I thought there was something that didnt have to approved by a supervisor --
SENIOR FBI OFFICIAL: The individual techniques.
QUESTION: Techniques. Okay.
QUESTION: So just to --
SENIOR DOJ OFFICIAL: And by the way, just by guideline, there is currently no requirement for supervisory approval to open an assessment. Part of that is because assessments also wrap in what weve historically called prompt and limited checking of leads. So the poison pen, very discrete allegation of, for example, criminal conduct, that we may not necessarily want to have to require supervisory approval before you take some modest steps to figure out whether or not the poison pen letter has any indices of veracity to it.
QUESTION: Okay, just to clarify. Opening an assessment and individual techniques used to pursue and answer the question raised by an assessment do not require SAC approval. Right?
SENIOR DOJ OFFICIAL: By guideline, they do not.
QUESTION: Got it.
SENIOR DOJ OFFICIAL: By policy, there will be a gradation of different types of approval levels, although SAC approval is pretty high; there are a fair number of levels of authority before you get to SAC approval.
QUESTION: And the policy stuff would still be --
SENIOR DOJ OFFICIAL: Its being finalized, yes.
MR. MILLER: But we want to separate just for the nomenclature, we want to separate approval of a supervisor from approval of an SAC.
MR. MILLER: Two different things.
QUESTION: But do plan to --
SENIOR DOJ OFFICIAL: Because you can have a supervisory special agent who is a supervisor. There are levels before you get to SAC.
QUESTION: Do you plan to announce those policies publicly when youre done?
SENIOR DOJ OFFICIAL: Were making decisions now as to how much of them we could make public. There are --
QUESTION: So they could be classified or --
SENIOR DOJ OFFICIAL: Or non-public, which is different.
SENIOR DOJ OFFICIAL: They do have law enforcement sensitive material in there. So we will have ongoing discussions about how much we can and should make public of them. But I can tell you that one of our primary goals of the consolidation project was to make it unclassified, publicly available to the maximum extent possible. So I think were at about 99 percent of it is unclassified and will be publicly available. Transparency for the agents and for the American people was one of our goals here.
QUESTION: So then what triggers an assessment --
QUESTION: What changes will there be from the document were looking at now? You said there might be --
SENIOR DOJ OFFICIAL: I think its pretty likely that there will be some changes.
QUESTION: Can you tell specifically what?
SENIOR DOJ OFFICIAL: Were still discussing. We did just have a productive meeting as well with some of the interested groups, and we do anticipate additional conversations with Congress next week, so I dont want to point to specific areas, but I can tell you that there is a very high likelihood that there will be changes.
QUESTION: Let me just follow up on that. Anything on the specific issues that weve discussed, though? I mean any of the things -- now about assessments with pretexts, is any of that -- change, or is that -- so far?
SENIOR DOJ OFFICIAL: We are discussing changes that could have implications for some of the things that we are -- that we have discussed here but again, the core structure -- were pretty comfortable with the core structure and the core decisions that weve made. One area that I can tell you that we are continuing to discuss is the civil disorders and demonstrations. That was something that came up in particular with the briefings on the Hill and thats something thats under active -- the decisions that are currently reflected in the guidelines are under active consideration right now.
QUESTION: Can you clarify something for us whether for example, what triggers an assessment? Is it something macro like for example, the Attorney General decides that, or the FBI director decides, there needs to be more attention paid to Russians, you know, at universities. Or Russians working on Wall Street or trading firms or something like that. Something like that, you know. Something general macro like that, can that then send agents in the field to do an assessment?
SENIOR FBI OFFICIAL: Not as youve phrased it.
SENIOR FBI OFFICIAL: I would say assessments come about -- theyre kind of assessments just having sort of -- there are two types of them. One is what used to be called, under General Crime Guidelines, prompt unlimited checking of leads. So some information comes to us thats not enough to open an investigation but it needs to be resolved. Frequently its triggered by the press, so youll read, you know, four stories on the mayor of the town and you go yeah, maybe the reporters got something. You know, so you start sort of following it and decide whether its enough to open a file or not. So thats one, is prompt unlimited checking of leads. Typically you need a lead, so something from an external source to get you going and you need to either resolve it, wash it out or decide it needs more investigation. In which case you open an investigation.
The second would be, I would say, more threat-driven analytic work. So starting with something, some intelligence or some knowledge that we have. That is, we know that theres a country whose stealing technology from us. We know that al-Qaedas sending operatives into the United States. We know that the LCN [La Costa Nostra] is engaged in loan sharking and whatever. We know that MS-13 is moving sort of from the coast into the heartland.
So you start with that intelligence and you say, what do you know about it? Does this affect us? Is that threat from that criminal, or terrorist or foreign government present here? So it may be that the director says I want you all to really work on this, but it cant just be the director just pulls out of his head, I want to know whether there are Russian guys engaged in activities on Wall Street because thats not -- like, to what end. Right, why are we doing that? Its still go to hook back to our mission so you need to tie it back to either counter-intelligence, counter-terrorism, criminal or as I say the tiny little sliver of foreign intelligence which would still need a requirement. Somebody has to be saying the DNI, the President or the Attorney General -- we need information on X, and the X would be a foreign intelligence X.
QUESTION: So thats your Venezuela example with the oil?
SENIOR FBI OFFICIAL: Correct.
QUESTION: Okay. So that would come -- in that tiny little sliver that would come from ODNI or the --
SENIOR DOJ OFFICIAL: Right. The Guidelines set forth, who can set the requirements. They are sent externally to the FBI.
QUESTION: And the assessment is a catalyst for preliminary investigation? Im just trying to --
SENIOR FBI OFFICIAL: It may be, or it may be the catalyst
to say you know what, we dont have this problem here. You know,
MS-13 -- theres nobody here whos MS-13. We dont have
MR. MILLER: Its a technique.
SENIOR FBI OFFICIAL: Its a technique.
QUESTION: Its not a category.
SENIOR FBI OFFICIAL: Right. We have categories of investigation, assessments and its just a technique.
QUESTION: Okay and then my final question. What was the reaction of the various groups to the general notion that under the Guidelines currently there are, you know, common sense things that you can do for criminal investigations that you cannot do as quickly, or what would seemingly be more urgent types of cases? What was the --
SENIOR FBI OFFICIAL: You know, I was shocked. We explained it to ACLU and they said, Good idea.
SENIOR FBI OFFICIAL 2: They said its been great -- coming and we should have done this sooner. You can call them and check that.
SENIOR DOJ OFFICIAL: It was a very productive discussion. I think that there is not always going to be agreement between us and other groups as to what techniques should be available to investigate threats to the national security. There are longstanding and sincerely held beliefs about what are the appropriate restrictions on the FBIs conduct. I hope that we had a good conversation with them and that they would understand where we are coming from. We were not singing Kumbaya when we left the briefing, but we did shake hands and they thanked us for having them in.
SENIOR FBI OFFICIAL 2: Id like to say this model is not new. During the NSL discussions some time back, when we came out with the FBI guidance to make it clearer for agents in terms of that compliance -- these are the touchstones that have to be hit. We brought the same groups in, or many of the same groups, and had them go over the proposed guidance, and they went over it and they came up with a couple of dozen suggested changes. Interestingly, most of what they came up with wasnt, we dont want you to do this. Most of what they came up with was. what does this mean? Which was a lot of what the discussion was today. Very similarly to this -- what exactly does that mean? And when we explained in detail what it meant, most of their things -- wouldnt it be clearer if you added this or if you said that? And I think the vast majority of what they gave in that, in those discussions, actually got put into the guidance. So, in other words, or I mean we looked at it as two things. One, its the level of transparency. The second thing was it was productive for both of us.
QUESTION: I just want to make sure the world didnt change as I know it.
SENIOR DOJ OFFICIAL: It hasnt.
SENIOR FBI OFFICIAL 2: It has a little bit.
QUESTION: Can I ask about compliance? All the things that I heard you mention in the way of checks were internal controls, unless I missed something.
SENIOR DOJ OFFICIAL: Well, I mean, were under numerous statutory requirements as well. Nothing in the guidelines changes that. We still have our obligations to the intelligence committees and the Senate Judiciary Committee. We still have our obligations to the Intelligence Oversight Board. Nothing we do in the guidelines changes those extrinsic controls and oversight mechanisms.
QUESTION: My question is, after all the problems you have at the national security levels, what reasons are there that internal checks will catch those kinds of abuses without outside oversight from the Inspector General, for instance? Over the particular -- of threat assessments?
SENIOR FBI OFFICIAL: Well, I think first off, (reporter), I will tell you our compliance program, which is part of what -- part of what we learned and you know, I just love continually being beaten by our errors of the past, but part of what we learned from that really was that things that may fairly straightforward you need to really break it down and you need to make sure that youve got appropriate internal checks on it so that we dont just assume that we give people the rules and everybody follows it. There needs to be some further checks, and so in formulating the policies that go with these guidelines, Pat Kellys compliance program has been very much involved in this and has very consistently looked to make sure that when we say for instance, X activity has to be reviewed by somebody, that were also laying out how theyre -- what theyre supposed to be looking for. This is what youre supposed to be doing. If the attorneys are supposed review it, where are the supposed to be reviewing it for.
So I think were better in terms of setting up our own internal rules so that they have self-checking mechanisms. Part of compliance is much like what a company does from an internal audit perspective. He can say, you know what, were starting with sort of the expanded assessment. A year from now we really need to go out and take a look at a few field offices and see how theyre actually doing it. Are the rules -- have they made sense, are they being complied with, are there portions of it that actually we have fairly substantial non-compliance with because people dont understand it. So should we up the training, should we change the policy -- like that.
I would also note that, much as I might like to say these guidelines have meant that we dont have oversight from the Inspector General, I can tell you that Glenn Fine is still there and hes still going to have every bit of ability to come in and take a look at whether we are complying with these guidelines or not. So weve always got the Inspector General as somebody who can dive in and take a look at what we do. We also have oversight from the judiciary committees and the intelligence committees who can always call the director up, or us up, to say what are you doing here.
I would also say one another oversight mechanism which I dont think (Senior DOJ Official) mentioned, is one -- for some of these things theres some things that dont have -- that are sensitive but they dont have otherwise a review mechanism under existing rules between the FBI and DOJ. Undercover activities, for example, have an established review structure. They have to come, they come to headquarters, theres a committee, the DOJ sits on and the FBI sits on and they all sit around the table and they consider the undercover proposal and they say its a good idea, its a bad idea. You need to do this, you need to do that. Theres too much exposure to the government. Theres too much likelihood of entrapment here. Youve got to change the scenario this way or that way, but its a joint review by both lawyers and the FBI so that theres a full airing of the issues.
So thats for undercover, but in this, for assessments, theres not going to be -- we dont have existing mechanisms for some sensitive things that we might want to do under this aegis so what weve proposed, and I believe the Departments going to just agree to it -- I guess they will now.
SENIOR DOJ OFFICIAL: Well, thats probably deliberative at some point but go on ahead.
SENIOR FBI OFFICIAL: Is a mechanism that has a similar sort of committee structure for those things that dont otherwise have a place where theyre reviewed like the undercover review committee. So there are some things with assessments that will be sensitive that really need kind of that interdisciplinary review, lawyers and FBI together saying both this is the right thing to do. Is it appropriate and should we do it.
QUESTION: Just to follow up on that thought. In the case of the NSLs, which I know you love to talk about so much.
SENIOR FBI OFFICIAL: I do.
QUESTION: I know. One of the big problems was that no one seemed to know how many NSLs were being issued that they were being issued by the field. So given the history and the lessons from that, will there be any tally now of how many national security assessments are being open with these new threats?
SENIOR DOJ OFFICIAL: There will be the ability to do that and that will be part of what I anticipate this committee will be looking at because assessments have to be opened under a particular category that will be subject to being counted. It will also be subject to being able to look at them across programs.
QUESTION: Will that be reported publicly?
SENIOR DOJ OFFICIAL: No.
SENIOR DOJ OFFICIAL: Were not intending to.
QUESTION: No way of knowing if next year there are 20,000 new threat assessments opened into national security matters?
SENIOR DOJ OFFICIAL: No, nor do I think that would be particularly meaningful. Im not sure what that would mean since heretofore we havent had a requirement of them being opened into a file. Now, they could run them, but there was not a lot of formality required with them. Now were requiring a certain amount of formality associated with them.
SENIOR FBI OFFICIAL 2: Just for context on the last point because most of you were here during NSLs but some of you werent. The office of compliance that (Senior FBI Official) refers to, and Pat Kellys an assistant director in charge of that office, didnt exist before NSLs. It came about as a result of NSLs as an example. So its not that the office of compliance failed on NSLs and theyve gotten better. The old system was basically built around the idea that the inspections would catch these things, but one of the things that we learned from NSLs is there are things that are common mistakes that can be repeated many times, and three years is a little too late to develop that trend. So the office of compliance looks at these things, assesses all the things we do, figures out which one of them is a higher risk and need to be looked at more often. Which one of them needs to be kind of pulled up for random sampling? Is this being done according to Hoyle? Which one of them need to be looked at less often so that in these high-risk things you have a better chance of catching mistakes in progress and then making sure that they are dealt with? And thats an important distinction.
SENIOR DOJ OFFICIAL: And thats some of the change in the oversight paradigm. If you thought back about it, there was no requirement of notice for the opening of an assessment -- a threat assessment. No FISA tools would have been available in a threat assessment, so you had, under the national security guidelines, no routinized or mechanized way of doing oversight because you wouldnt have had the request to go to the FISA court and you wouldnt have had the notice. But now when they go in their field inspections theyre looking at assessments as well. So it is a far more comprehensive means of oversight.
MR. ROEHRKASSE: We put out, the National Security Division -- everything theyve done since theyve launched their office of oversight about a year ago and that includes all the stats on our NSL reviews that (Senior FBI Official 2) was talking about, the new FBI office and this was all created after the NSL issue came about. Theres been a whole series of steps taken.
MR. ROEHRKASSE: I did promise these officials that I would get them out of here at 3:00; its now 3:05, so I guess lets just wrap up with two more questions.
QUESTION: In terms of compliance, is there a process in place and how long will it take to get everybody up to speed in the agency on this stuff and what would be the process? Would each agent have to go through some course work? Is it like going to take a year? Is it going to take --
SENIOR FBI OFFICIAL: Weve had the basic guidelines of these for a while so theyve been trained at a high level on what we have, weve trained them saying this is what we anticipate the AG is going to sign --
QUESTION: But the NSL was not clarity throughout the FBI on how to operate under the --
SENIOR FBI OFFICIAL: Okay, that was a comma. But weve also put together web-based training that takes the policy thats been written, working off of these, which obviously have to be tweaked if these get tweaked and so theres web-based training that all agents will have to take and theyll have to take that and its fairly substantial to try to get them up to speed on the new policies and theyll have to take that before they can -- before they can start going. It has a little test in it and they have to pass at a certain score.
QUESTION: Any sense of how many hours that entails?
SENIOR FBI OFFICIAL: I think all together its probably about eight.
MR. ROEHRKASSE: Okay. Lets go here and then well go here and then Larry and then well end soon.
QUESTION: And just as there are certain criminal investigative tools we spent a lot of time talking about, you want to be able to use in intelligence investigations, theres intelligence tools some of which are classified that you want to be used in criminal investigations. Right? Because you want everything to be -- all three of these pillars to be able to coexist. So --
SENIOR DOJ OFFICIAL: Im not sure that you -- the techniques?
SENIOR DOJ OFFICIAL: -- are in the Guidelines.
QUESTION: Can an agent say for example, I want to make an assessment since we know MS-13 is spreading across the country. I want to prevent or protect against federal crime so I want to assess whether any MS-13 members are in my area. Im going to send out NSLs. Im going to --
SENIOR DOJ OFFICIAL: No, no. There is a statutory limitation on national security that it has to be related to a national security -- authorized national security investigation. Same thing with like FISA. There is a purpose requirement within the FISA statute itself. We cant, by the guidelines, change the statutory requirements.
QUESTION: Right, I remember you said that but there are some classified procedures that nobody knows about. Investigative procedures.
SENIOR FBI OFFICIAL: They dont change. Our guidelines cant change the law. So were still bound by the law, and if youre talking about MS-13 youre not talking about a foreign intelligence matter.
QUESTION: One of the overall criticisms has been the whole idea of gathering intelligence without any evidence of wrongdoing. Could you just address that as a big picture thing?
SENIOR DOJ OFFICIAL: As a big picture thing that was the decision we made in 2002 and 2003. It is not that we are investigating or gathering intelligence without evidence. It is instead, the decision was reached in 2003 that there needed to be some level of activity before a formal investigation that would allow the FBI to be proactive. To try to find the threats. To assess vulnerabilities, to assess risks before the concrete tip came in. So before we had enough to open an investigation. That decision and that approach is not new. That was 2003, with the advent of the threat assessment level within the national security guidelines. What has changed are some of the techniques that are available in the assessment level. We think it will make the FBI more effective at the assessment level; better able to fulfill a proactive mission, to be an intelligence-driven agency. But the basic construct of having some level of activity before you open an investigation is not a new concept. Its what we already have.
MR. ROEHRKASSE: Okay.
SENIOR FBI OFFICIAL: Can I just say one more thing?
MR. ROEHRKASSE: Oh, sure.
SENIOR FBI OFFICIAL: Im sorry. Just one -- theres been some sense that -- and I can envision how this might be played is that these AG guidelines are giving the FBI sweeping new powers. Were not getting any new power. This is power. I mean surveillance -- you all do surveillance. Theres no new power there. Youre just watching people. Were not talking about a wiretap here. Were talking about physically watching someone. Theres no pretext interview, which is not being completely candid about the purpose of the interview. Thats not a new power. We could always do that. Its just moving it or allowing it to be used as a matter of AG policy in a different area, but theres not -- this is not a new power that the FBI has been given by virtue of the AG guidelines, the consolidated AG Guidelines, that we didnt previously have.
SENIOR DOJ OFFICIAL: Its just switching when theyre available.
QUESTION: And this could all change, obviously, under the next administration?
SENIOR DOJ OFFICIAL: I will say its a long process for guidelines.
SENIOR FBI OFFICIAL: I know Im going to be here and I dont want that.
MR. ROEHRKASSE: Thank you guys.
Ended at 3:17 P.M. EDT