The New Attorney General Guidelines

January 16, 2009

The Federal Bureau of Investigation has new guidelines for domestic operations. It’s the Attorney General Guidelines and these changes affect the way intelligence is gathered, investigations are conducted and information is shared.

Audio Transcript

Mr. Schiff: Hello, I’m Neal Schiff, and welcome to Inside the FBI, a weekly podcast about news, cases, and operations. The Federal Bureau of Investigation has new guidelines for domestic operations. It’s the Attorney General Guidelines and these changes affect the way intelligence is gathered, investigations are conducted and information is shared.

Ms. Caproni: “It allows us to be much more pro-active in terms of discovering national security and criminal threats than we really could be under the prior guidelines.”

Mr. Schiff: These new Attorney General Guidelines for the FBI simplifies procedures for agents working these cases.

Mr. Miller: “It takes the criminal guidelines, the tools you could use in a criminal case, and allows them to use the same set of tools in a terrorism case.”

Mr. Schiff: The FBI’s top attorney, General Counsel Valerie Caproni, says these new AG Guidelines, as they are called, move the FBI forward from being just a law enforcement agency to the goal of becoming an intelligence gathering agency.

Ms. Caproni: “Rather than waiting to investigate, for someone to come tell us ‘there’s a problem over here,’ we can, instead, look at the situation critically, and based on intelligence, and consider might we have a threat over here, and we can take, then, steps to determine where there’s something going in the community that we should be looking at and we should be investigating.”

Mr. Schiff: Caproni says this takes the waiting game out of the picture. If there’s a criminal or terrorist plan in the works and the FBI finds out about it, agents can swing into action.

Ms. Caproni: “Once you hear something you may actually have enough information, or what we call ‘predication,’ to actually open an investigation. What this allows us to do is to say, ‘Let’s look at what’s happening in the world, let’s look at what circumstances exist within the United States’ and say, ‘Pro-actively, should we be worried about what happened, for example, in London where a group of English citizens, people who had grown up in England, ended up going to Pakistan, got training, came back, and then they blew up bombs in the subway?’ So the issue we need to say is pro-actively, might we have similar individuals in the United States, who are, though they were born and raised here, have ascribed to radical ideology and, in fact, may be training to become a suicide bomber. If so, where might we find such people and can we get ahead of that threat by looking at the intelligence and looking at the information that we know and ascertaining if we have that concern.”

Mr. Schiff: John Miller is the Assistant Director of the FBI’s Office of Public Affairs. He says the new AG Guidelines bring everyone together into one tent for investigative and intelligence operations.

Mr. Miller: “The old guidelines were trifurcated. But they also had one standard for investigative tools you could use to investigate a guy who was selling some ‘blow,’ cocaine, over the bar in a location. But if the guy in the bar was planning to blow up the world, you didn’t have all the same tools available, in fact, you had fewer. So it takes the criminal guidelines, the tools you could use in a criminal case, and allows them to use the same set of tools in a terrorism case. When the guidelines were formulated originally, we weren’t facing the type of terrorist activity we are in the post-9/11 world. There was no concept of 3,000 people being murdered on a single day on U.S. soil and the tool set, and the skill set, that was applied against terrorists, was applied against different kinds of terrorists using different sets of tools. This actually brings a lot more sense to it in the post 9/11 world.”

Mr. Schiff: What’s the difference between a terrorist investigation and a criminal investigation?

Mr. Miller: “In the old set of guidelines the difference was there a whole lot of things you could do to investigate a criminal that you couldn’t do to investigate a terrorist. This smoothes that out. There’s increasingly less difference between those two cases. I think if you look at the Torrance case, they were captured in a series of gas station robberies; clearly criminal. But they were raising money for their almost immediate plans to conduct two terrorist attacks. One on an Army recruiting station and the other on a house of worship. If you look at the British 7/7 subway bombings, here was a series of credit card frauds that would have been classified as strictly criminal that were actually bust-out schemes that were being used to raise money to buy the materials to make the bombs and to eventually attack the London Underground. So what you see here increasingly is your criminal cases and those pre-incident indicators and your terrorist plots are continually morphing together in ways that we hadn’t seen before.”

Mr. Schiff: Two major changes stand out in the new guidelines and General Counsel Caproni says these are positive changes for the job the FBI has to do.

Ms. Caproni: “Physical surveillance. And by that I literally mean being in a public area, an area where no one has an expectation of privacy and watching someone else. Some person-else or some location-else. So it may be watching a store front; may be watching a particular person. So we can now do physical surveillance and the second thing we can do is use our human sources, which are one of our biggest assets. People who are willing to work for us and to provide us information on a confidential basis. So now we can recruit new human sources during this assessment activity and we also can task our sources. So we can ask a source, ‘go find out whether there are people who are going to Pakistan for training,’ for instance, or 'go find out if you’ve got militia activity in your area where people are plotting to do something violent relative to the new president.’ Anything like that; just sending an informant out and asking them to get information for us.”

Mr. Schiff: We asked Caproni to clarify that a “human source” is not someone who is an employee of the FBI but someone on the outside who is going to help an investigation.

Ms. Caproni: “That’s correct. A human source is someone who’s not a government, not one of our employees, who has been asked and who has agreed to provide us information on a confidential basis.”

Mr. Schiff: Assessment is a key word in gathering intelligence, and Caproni says FBI agents are constantly on the lookout for anything that stands out. She says there may be people working for U.S. companies that deal with other countries, and are the company employees honest?

Ms. Caproni: “Are there any particular people in their area that they really should be thinking about either as a potential source of information about the “X” country’s interest in our technology, or actually looking at them as potential people who are stealing our technology. So for example, suppose there are a number of businesses, again, with frequent travel and also those businesses have a lot of interns from the local university. So you then start looking at, well, what type of contracts does the university have? Are they developing this technology? What are the “X” students? What type of majors do they have? Are they a bunch of English majors and music majors? If so, they’re probably not stealing high-technology. On the other hand, if they’re engineering or computer science people, then you might be more interested in them. So what the assessment tool allows us to do is to start sorting down and looking critically at who’s there; what kind of information is there; do we have a problem? Assuming they start to find people who have connections or they have characteristics that are very common among the people that we know are, in fact, in our country on behalf of country “X” to unlawfully obtain controlled goods, then they will start looking more closely at those people. Now that doesn’t mean that those people are going to end up being targets of an investigation, but the whole point of an assessment is to not wait for someone to come in and say, ‘Charlie seems to be acting really hinky and he’s staying in labs after hours and I saw him taking papers home.’ At that point we have enough to open an investigation. But instead, to get to the problem in advance of that, to say, ‘This is someone who is in the right place, traveling the right way, and has contacts,’ that would lead us to believe if we have a problem, that person may be part of the problem.’ ”

Mr. Schiff: We asked Caproni about the FBI being watched very closely not only by Congress and the White House but by the public as well.

Ms. Caproni: “Absolutely. The public, at least based on the newspaper articles, has some concerns about the new guidelines. Congress certainly does. We’ve got a new administration coming at the Department of Justice. They have indicated a desire to look very hard at the new guidelines and at our policy. We’ve welcomed that. We think that we’ve developed good policy to respond to this. We had very substantial outreach to privacy and civil liberties groups as we were developing our policy. We did fairly substantial outreach to Congress as well; really unprecedented amount of outreach and briefings of Congress. Having said all that, they were still our policy, and at the end of the day I’m confident that the people that we were coordinating with and consulting with did not think that we gave them enough time, but the door, it’s not like everything has ended. If, to the extent people come to us with good ideas of ways to better balance our need for flexibility in order to do our job with the desire to protect privacy and civil liberties, we’re always open for suggestions. And as I’ve said, and as we’ve told Congress and we told advocacy groups at the time, all of these policies are going to be re-looked at in a year. So to the extent that the public has comments and concerns, they should let us know because nothing is written in stone and we hope we’ve gotten it right but if we haven’t gotten it right, our goal is to make it right.”

Mr. Schiff: You can learn more about the new Attorney General Guidelines at and the guidelines are posted on the Department of Justice website, That concludes our show. Thanks for listening. I’m Neal Schiff of the FBI’s Office of Public Affairs.

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