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Attorney General’s Guidelines for Domestic FBI Operations, September 2008

Published September 29, 2008

The Attorney General released these guidelines in September 2008, and outlined the background of the guide and which previous legal frameworks are replaced in a memorandum to heads of relevant intelligence and law enforcement departments. See also the FBI's Domestic Investigations and Operations Guide which supports the implementation of the Attorney General's.

Excerpt from the memo:

"The FBI's current responsibilities require it to be both an agency that effectively detects, investigates, and prevents crimes, and an agency that effectively protects the national security and collects and analyzes intelligence. Criminal law enforcement has always been central to the FBI's functions, but the national security and intelligence aspects of its mission have increased in scope and importance since the September 1 1,2001, terrorist attacks on the United States.

These Guidelines reflect how the FBI and the policies governing its domestic operations have evolved in the period following the terrorist attacks. Based on decisions and directives of the President and the Attorney General, inquiries and enactments of Congress, and the conclusions of national commissions, it was recognized that the FBI's functions had to be expanded and better integrated to meet contemporary realities: [Clontinuing coordination . . . is necessary to optimize the FBI's performance in both national security and criminal investigations . . . . [The] new reality requires first that the FBI and other agencies do a better job of gathering intelligence inside the United States, and second that we eliminate the remnants of the old "wall" between foreign intelligence and domestic law enforcement. Both tasks must be accomplished without sacrificing our domestic liberties and the rule of law, and both depend on building a very different FBI from the one we had on September 10,2001. (Report of the Commission on the Intelligence Capabilities of the United States Regarding Weapons of Mass Destruction 466,452 (2005).)

Consistent with these objectives, the FBI has reorganized and reoriented its programs and missions, and the guidelines issued by the Attorney General for FBI operations have been extensively revised over the past several years. Nevertheless, the principal directives of the Attorney General governing the FBI's conduct of criminal investigations, national security investigations, and foreign intelligence collection have persisted as separate documents involving different standards and procedures for comparable activities. The new Guidelines integrate and harmonize standards, and thereby provide the FBI and other affected Justice Department components with clearer, more consistent, and more accessible guidance, and make available to the public in a single document the basic body of rules for the FBI's domestic operations.

In relation to the FBI's national security and criminal investigation functions, the new Guidelines generally harmonize investigative standards and procedures. Investigation of threats to the national security, including international terrorism and espionage, can be both an exercise of the FBI's national security powers and an exercise of its authority to investigate federal crimes. The new Guidelines eliminate arbitrary differences in applicable standards and procedures that depended merely on how an activity was labeled. ("national security" versus "criminal law enforcement"). For example, under current guidelines, if a matter is labeled as "criminal," an FBI agent may conduct physical or photographic surveillance based on a tip; the procedural requirements for doing so are more exacting in national security investigations. Similarly, human sources - referred to as informants or assets in the current guidelines - may be affirmatively tasked to seek information when the purpose is to check leads in ordinary criminal investigation, but the standards are more restrictive when the purpose is to gather information about threats to the national security. The new Guidelines will resolve such discrepancies.

At the same time, the Guidelines confirm that national security activities present special needs for coordination and information sharing with other components and agencies with national security responsibilities, including the Department's National Security Division, other U.S. Intelligence Community agencies, the Department of Homeland Security, and relevant White House agencies and entities. Notification, consultation, and information sharing provisions that relate particularly to national security activities accordingly are continued in the new Guidelines.

In addition to assuring that similar conduct is governed by similar rules, regardless of what label may be attached to the underlying activity, the new Guidelines also provide adequate standards, procedures, and authorities to reflect that the FBI is a full-fledged intelligence agency - with respect to both intelligence collection and intelligence analysis - and a key participant in the U.S. Intelligence Community."

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