The New York Times has reported that the newest edition of the FBI’s manual, called the Domestic Investigations and Operations Guide, gives significant new powers to the bureau’s roughly 14,000 agents. Soon FBI agents will have more leeway to search databases, go through household trash or use surveillance teams to scrutinize the lives of people who have attracted their attention. These newly expanded powers are meant to give agents more latitude to search for signs of criminal and terrorist activity.

According to Michael German, a former FBI agent who is now an attorney for the American Civil Liberties Union (ACLU), these new and more intrusive powers can be utilized against someone even if the agent lacks a firm reason to suspect that person of wrongdoing. Mr. German states that “claiming additional authorities to investigate people only further raises the potential for abuse.” Even before this new manual goes into affect, the FBI has had many complaints levied against it about the bureau’s surveillance of domestic political groups, mosques, and the FBI’s frequent misuse of “national security letters,” which allows agents to obtain information like phone records without a court order. Most of the existing practices were put in place when the bureau published its last Domestic Investigations Manual in 2008. The newest edition of this manual looks to further expand the class of people who can be put under the scrutiny of a federal investigation by broadening potential targets from those suspected of wrongdoing to those who have “attracted their attention.”

The most notable changes reported by the Times apply to the lowest category of federal investigations, called an “assessment.” The category, created in December 2008, allows agents to look into people and organizations “proactively” and “without firm evidence” for suspecting criminal or terrorist activity. For example, agents are now permitted to search commercial and law enforcement databases without making any record of their decision to search people in such databases.

Valerie E. Caproni, the FBI General Counsel, insists that none of this “pre-assessment” information will ever find itself into an FBI file unless the agent later opens a formal assessment or investigation. However, Ms. Caproni fails to demonstrate the existence of any safegaurds to help ensure people’s private information doesn’t inadvertently end up in an FBI file. In a world that continues to become more interconnected, it wouldn’t take much for the findings of an undocumented pre-assessment search to begin on one agent’s computer, sent to another’s BlackBerry, and eventually into an official report or file where it takes on a life of its own.

Other significant changes include expanded use of lie detectors and the authority to search a target’s household trash even when that person is being evaluated as a potential informant, not criminal wrongdoer. Soon FBI agents will have the authority to coerce and blackmail innocent friends, family members, and co-workers of those who have “attracted” their attention. Unfortunately with this new manual even fewer people will be insulated from the stresses and intrusions of a baseless federal investigation, making representation by a competent criminal defense attorney at every stage of a federal investigation that much more important. Retaining an attorney that can obtain for a target of an investigation a proffer letter, transactional immunity or a non-prosecution agreement could soon become the only way to effectively protect that person’s civil liberties from an overeager federal agent.

The author of this blog is Erich Ferrari, an attorney specializing in Federal Criminal Defense matters. If you have any questions please contact him at 202-280-6370 or

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