Earlier this week, Representatives Nancy Mace (R‑SC) and Jamie Raskin (D‑MD) sent a letter to the Government Accountability Office (GAO) requesting the congressional watchdog agency to investigate the FBI’s use (or perhaps more accurately, misuse) of an investigative authority known as Assessments. Cato provided technical drafting assistance for the letter, as well as considerable background material on FBI Assessments obtained by Cato via the Freedom of Information Act (FOIA).
In December 2008, then‐Attorney General Michael Mukasey modified the Attorney General Guidelines for Domestic FBI Operations by creating an entirely new class of FBI proto‐investigation known as an “Assessment”. Contrary to a typical FBI preliminary or full field investigation, an Assessment requires no criminal predicate to be opened—just the broad and amorphous formulation of an “authorized purpose.” FBI agents can’t—theoretically—utilize wiretaps when conducting Assessments on people or organizations, they can utilize many other tools: conduct physical surveillance of Assessment targets, search public and classified databases for information on them, and run confidential informants against them, among other things.
I’ve written extensively about the dangers to civil liberties of the Assessment authority, with the FBI Assessment on Concerned Women of America being a prime example. Cato also has ongoing FOIA lawsuits against the FBI seeking the release of all FBI Assessments that targeted domestic civil society organizations, political candidates and/or parties, religious organizations, and media outlets, as well as other documents on FBI noncompliance with the AG Guidelines and the related FBI Domestic Investigations and Operations Guide (DIOG).
The Mace‐Raskin FBI oversight initiative is the first of its kind since the Mukasey change to the AG Guidelines, and (pending formal GAO acceptance of the job) the first bipartisan congressional examination of a major FBI investigative authority and related tactics since the Church Committee era. Mace and Raskin are to be commended for setting a badly needed example of bipartisan oversight of a federal law enforcement agency with a century‐long record of routinely violating the constitutional rights of Americans.