Understanding the Problem:
Past Investigative Guidelines Have Hampered the FBI
In Conducting Investigations Capable of Preventing Terrorist Attacks

Problem #1: Emphasis on Prosecuting Past Crimes Instead of Preventing Future Crime

The previous guidelines emphasized investigation and prosecution of past crimes. They generally barred the FBI from taking the initiative to detect and prevent future crimes, unless it learned of possible criminal activity from external sources. As a result, the FBI was largely confined to a reactive role.

Solution #1: Detect and Neutralize Terrorists Before They Attack

The new guidelines reflect the Attorney General's mission for the Justice Department's war on terror: to neutralize terrorists before they are able to strike, not simply to investigate past crimes. The revised guidelines create new information- and intelligence-gathering authorities to detect terrorist plots, and strengthen existing provisions to promote effective intervention to foil terrorists' plans.

Problem #2: FBI Headquarters Was Responsible for Decision-Making, But Lacked the Field Information Needed to Make Sound Decisions

Under the old guidelines, decision-making authority was centralized at FBI headquarters, while field offices were largely responsible for intelligence analysis. This reversed the proper order: what was centralized (decision-making) should have been devolved, and what was devolved (analysis) should have been centralized.

Solution #2: Field Offices Are Authorized to Make More Decisions, and FBI Headquarters Will Analyze Information

The revised guidelines enhance FBI headquarters' ability to analyze critical intelligence information, and enable field offices to make more independent investigative decisions. The revised guidelines centralize what should be centralized (analysis), and devolve what should be devolved (decision-making).

Problem #3: Agents Did Not Use Lawful Investigative Methods When Investigating Some Suspected Terrorists

The old guidelines lacked clear direction to use lawful, authorized methods to prevent terrorism. As a result, FBI agents have declined to use available investigative techniques when investigating crimes committed by affiliates of some political and religious organizations.

Solution #3: Investigate Suspected Terrorists on a Neutral Basis

The revised guidelines make clear that investigations of suspected terrorists with ties to religious and political organizations will proceed according to the principle of neutrality. As President Bush has noted, our enemy is not any one faith or creed, but "a radical network of terrorists."

Maintaining Limitations on Undercover Operations:

The revised guidelines maintain, and in some respects strengthen, the strict and extensive requirements necessary to justify an undercover investigation that involves infiltration of suspected terrorist groups.

Field Agents Continue to Have Extensive Certification Requirements. When applying to conduct such an undercover operation, FBI agents must, among other things, provide headquarters with:

  1. A certification that the operation will be conducted with minimal intrusion;

  2. A statement as to why the undercover operation is necessary;

  3. A description of the procedures that will be used to minimize the acquisition of information that is not relevant to the investigation; and

  4. An explanation of how any potential constitutional concerns and any other legal concerns have been addressed.

To secure approval for such an undercover operation, FBI agents must also obtain:

  1. A letter of concurrence from the appropriate federal prosecutor;

  2. Review of the proposed operation by the Undercover Review Committee (composed of FBI and Criminal Division personnel);

  3. Approval of the operation by the FBI Director, Deputy Director, or a designated Executive Assistant Director; and

  4. Authorization of the undercover operation for a limited period, not to exceed six months.

(General Investigations Guidelines, Part III.B(1)(a), (4); Undercover Operations Guidelines, Part IV.A-B, .C(2)(l), .D, .E(1), .F-G.)