Backward at the F.B.I.

New York Times

by Editorial

The Obama administration has long been bumbling along in the footsteps of its predecessor when it comes to sacrificing Americans’ basic rights and liberties under the false flag of fighting terrorism. Now the Obama team seems ready to lurch even farther down that dismal road than George W. Bush did.

Instead of tightening the relaxed rules for F.B.I. investigations — not just of terrorism suspects but of pretty much anyone — that were put in place in the Bush years, President Obama’s Justice Department is getting ready to push the proper bounds of privacy even further.

Attorney General John Ashcroft began weakening rights protections after 9/11. Three years ago, his successor, Michael Mukasey, issued rules changes that permit agents of the Federal Bureau of Investigation to use highly intrusive methods — including lengthy physical surveillance and covert infiltration of lawful groups — even when there is no firm basis for suspecting any wrongdoing.

The Mukasey guidelines let the bureau go after people identified in part by race or religion, which only raises the danger of government spying on law-abiding Americans based on their political activity or ethnic background.

Incredibly, the Obama administration thinks Mr. Mukasey did not go far enough. Charlie Savage reported in The Times last week that the F.B.I plans to issue a new edition of its operational manual that will give agents significant new powers to search law enforcement and private databases, go through household trash or deploy surveillance teams, with even fewer checks against abuse.

Take, for example, the lowest category of investigations, called an “assessment.” The category was created as part of Mr. Mukasey’s revisions to allow agents to look into people and groups “proactively” where there is no evidence tying them to possible criminal or terrorist activity. Under the new rules, agents will be allowed to search databases without making a record about it. Once an assessment has started, agents will be permitted to conduct lie detector tests and search people’s trash as part of evaluating a potential informant. No factual basis for suspecting them of wrongdoing will be necessary.

The F.B.I. general counsel, Valerie Caproni, said agents want to be able to use the information found in a subject’s trash to pressure that person to assist in a government investigation. Um, well, yes, that is the problem. It only heightens concern about privacy, improper squeezing of individuals, and the adequacy of supervision.

Currently, surveillance squads, which are trained to surreptitiously follow targets, may be used only once during an assessment. The new rules will allow repeated use.

They also expand the special rules covering “undisclosed participation” in an organization by an F.B.I. agent or informant. The current rules are not public, and, as things stand they still won’t be. But we do know the changes allow an agent or informant to surreptitiously attend up to five meetings of a group before the rules for undisclosed participation — whatever they are — kick in.

The changes also remove the requirement of extra supervision when public officials, members of the news media or academic scholars are investigated for activities unrelated to their positions, like drug cases. That may sound like a reasonable distinction, but it ignores an inflated potential for politically motivated decision-making.

The F.B.I.’s recent history includes the abuse of national security letters to gather information about law-abiding citizens without court orders, and inappropriate investigations of antiwar and environmental activists. That is hardly a foundation for further loosening the rules for conducting investigations or watering down internal record-keeping and oversight.

Everyone wants to keep America safe. But under President Bush and now under President Obama, these changes have occurred without any real discussion about whether the supposed added security is worth the harm to civil liberties. The White House cares so little about providing meaningful oversight that Mr. Obama has yet to nominate a successor for Glenn Fine, the diligent Justice Department inspector general who left in January.

Finally, Congress is showing some small sign of interest. Senator Jon Tester, Democrat of Montana, has written to Robert Mueller III, the F.B.I. director, asking that the new policies be scuttled. On Friday afternoon, Senators Patrick Leahy of Vermont and Charles Grassley of Iowa, the chairman and the ranking Republican member of the Judiciary Committee, called on Mr. Mueller to provide an opportunity to review the changes before they are carried out, and to release a public version of the final manual on the F.B.I.’s Web site. Mr. Obama and Attorney General Eric Holder Jr. need to listen.