SACRAMENTO — For years, FBI agents probing possible terrorist activity have worked under restrictions meant to protect the free-expression rights of political and religious groups that might come under investigation.
The result, some law enforcement experts say, has been a slow, overly cautious approach to investigating and arresting potential terrorists.
In the wake of the Sept. 11 attacks those limits have come under new criticism and scrutiny, despite the arguments of civil liberties groups who say the limits are still needed to prevent abuses.
Rules meant to protect freedom of expression “require the FBI to have their eyes closed and their ears plugged up and look the other way” unless they can demonstrate a crime has been or is about to be committed, said Oliver “Buck” Revell, former associate deputy FBI director for investigations.
“When you’re dealing with terrorism, that’s too late,” said Revell, who headed the FBI’s counterterrorism division for 11 years.
Two sets of Justice Department guidelines are in place, one for foreign counterintelligence and the other for domestic terrorism. They govern when cases may be opened or must be closed, who must approve opening a case, what surveillance and other techniques may be used, and what reports must be filed.
The FBI director himself must approve any infiltration of an academic institution, according to the foreign intelligence guidelines, most of which remain secret. Similarly, agents must have approval from FBI headquarters and Department of Justice before they can investigate domestic religious, political or news media organizations.
The guidelines are now under review as part of Attorney General John Ashcroft’s planned reorganization of the Justice Department, said spokeswoman Susan Dryden.
“We are conducting a review of all guidelines, not just those in particular, to determine if they are in line with our new priorities,” she said.
The guidelines were created to rein in the FBI after the abuses during the era of J. Edgar Hoover, who presided over domestic spying during the Cold War, civil rights movement and Vietnam. In the 1980s, the FBI faced accusations that it improperly investigated a U.S. group, the Committee in Solidarity with the People of El Salvador (CISPES), that it suspected was funneling money to rebels.
The CISPES investigation “spun out of control,” said Harvey Grossman, legal director for the American Civil Liberties Union of Illinois, who has often sued the FBI to force it to comply with the guidelines. Grossman argues that there are no real restrictions on investigations.
Critics of the guidelines say the FBI should be able to monitor groups that preach violence, even if there’s no direct evidence of an actual plot. Revell cites a radical Palestinian group involved in the assassination of Rabbi Meir Kahane, head of the extremist Jewish Defense League. The Palestinian group eventually was linked to the first World Trade Center bombing.
Had that group been pursued in 1993, Revell said, “It’s very possible and I think highly probable that the first World Trade Center bombing could have been avoided.”
Without the restrictions, the FBI might have stopped two 1999 fatal shootings by racist extremists, said Steven Freeman, legal affairs director for the Anti-Defamation League, because “they were members of groups we had information about.”
Confusing guidelines “made field agents very reluctant to open cases,” said L. Paul Bremer III, former President Reagan’s ambassador-at-large for counterterrorism and chairman of the National Commission on Terrorism that finished its work last year.
Bremer’s commission concluded that the regulations are so confusing they contribute to “a risk-adverse culture that causes some agents to refrain from taking prompt action against suspected terrorists.”
When Revell and others criticized the regulations after the bombing of the Oklahoma City federal building in 1995, then-Director Louis J. Freeh told Congress the regulations weren’t a handicap. But the Clinton administration considered altering the guidelines, and the Justice Department eventually distributed a 16-page memo intended to broaden agents’ interpretation of the guidelines without changing the language.
Former agents say the FBI remained reluctant to investigate religious or academic institutions with possible terror links.
“We wanted to be more aggressive at times, but the whole push back from civil libertarians and the universities — it was very punishing,” said George Vinson, a 23-year FBI veteran who headed two West Coast anti-terrorism programs. Vinson is now California Gov. Gray Davis’ security adviser.
The House International Relations Committee debated the guidelines last month, and congressional aides said they anticipate further hearings. California terrorism adviser Vinson thinks the guidelines are likely to be reinterpreted by the FBI and Justice Department, even if they are not formally altered.
“The FBI’s going full-bore now,” Vinson said. “I think they have a little more license now and they feel a little more comfortable.”
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