Brennan Center for Justice
at New York University School of Law
120 Broadway Suite 1750New York, New York 10271646.292.8310 Fax 212.463.7308 www.brennancenter.org
Congressional Black Caucus FBI Black Identity Extremist Assessment Panel Discussion: March 20, 2018 The FBI’s Governing Authorities:
•
Attorney General Guidelines for Domestic FBI Operations
require that investigations not be based
solely
on First Amendment activities. 1.
Extremely low standard. For the FBI, the BIE assessment may be intended to provide the necessary additional element to authorize an investigation. 2.
AGG allows FBI agents to conduct a type of investigation called an “assessment” which requires no factual predicate to suggest the target of the assessment is engaged in wrongdoing. 3.
AGG allows FBI to conduct an assessment of individuals to find derogatory information that could be used to coerce them into becoming FBI informants. 4.
Next stage of investigation, a Preliminary Investigation, requires only “information or an allegation” that the person or organization poses a threat. According to the DOJ Inspector General, the FBI agents can make the necessary accusation based on their speculative belief a crime may be committed in the future. 5.
FBI Domestic Investigations and Operations Guide
implements AGG. -Authorizes an assessment activity called Domain Management. -Domain Management includes
Racial and Ethnic Mapping
program and the collection of data on racial and ethnic behaviors and facilities. •
Department of Justice Guidance for Federal Law Enforcement Regarding Their Use of Race, Ethnicity, Gender, National Origin, Religion, Sexual Orientation, or Gender Identity
states that the constitution only requires that these characteristics cannot be
sole basis
for a law enforcement action. 1.
It adds requirement that the LE officer believes use of the characteristic is reasonable in the totality of the circumstances. Requires trustworthy
2 information, relevant to the locality or time frame, that links persons possessing a particular listed characteristic to an identified criminal incident, scheme, or organization, a threat to national or homeland security, a violation of Federal immigration law, or an authorized intelligence activity. Under the FBI’s rules, BIE assessment may provide the necessary “trustworthy information” that identifies a scheme, organization, or threat. 2.
The 2014 Guidance explicitly authorizes FBI racial mapping program.
Policy Recommendations
•
Withdraw and denounce BIE report and any other intelligence assessments or training Require the FBI to withdraw and denounce BIE report and any other intelligence assessments or training materials referencing BIE as a category of domestic terrorists. •
Require independent review of FBI intelligence and training materials regarding investigation, surveillance, and intelligence gathering that targets protected classes, modeled after its review of anti-Muslim training materials in 2012. •
Establish a peer review system to oversee the production of intelligence reports and training materials that include the FBI Office of General Counsel, DOJ Privacy Officer, and DOJ Civil Rights Division prior to publication (DHS already does this). •
Require all intelligence and training products to be available for congressional review, with all personally identifiable information (PII) properly redacted. •
End the FBI’s racial and ethnic mapping program. •
Pass the Ending Racial Profiling Act. •
According to 2016 data, the FBI is 83.4% white and 80% male. Congress should order an independent study to determine why diversity gains throughout the 1990s have fallen over the last 18 years. It should examine bias in hiring, promotion, and disciplinary processes. For additional information, please contact: Michael German Fellow, Brennan Center for Justice at New York University Law School Program on Liberty and National Security michael.german@nyu.edu Telephone (646)292-8310