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April 26, 1995

The FBI's Domestic Counterterrorism Program

Recent news commentary has suggested that the FBI is hamstrung in its efforts to combat domestic terrorism. One former FBI official was quoted as saying that "you have to wait until you have blood on the street before the Bureau can act." Steven Emerson has asserted that the FBI is severely restricted in infiltrating known extremist groups, that it has no terrorism data base like the CIA's, and that it is powerless to stop extremist groups from masquerading as "religious" groups.

All of these claims are incorrect. Persons concerned about addressing the threat of terrorism need to begin with a clear understanding of current FBI capabilities, which are in fact broad.

The FBI currently operates under a set of guidelines issued in 1983 by Ronald Reagan's Attorney General, William French Smith. The Smith guidelines were a modification of guidelines issued by Gerald Ford's Attorney General Edward Levi in 1976. The Levi guidelines were criticized as being too restrictive and cumbersome. Indeed, many of the criticisms of the current guidelines are really the same criticisms lodged against the Levi guidelines, which the Smith guidelines were intended to rectify.

The Smith guidelines make it absolutely clear that the FBI does not have to wait for blood in the streets before it can investigate a terrorist group. The guidelines expressly state: "In its efforts to anticipate or prevent crimes, the FBI must at times initiate investigations in advance of criminal conduct."

The threshold for opening a full investigation is low: a domestic security/terrorism investigation may be opened whenever "facts or circumstances reasonably indicate that two or more persons are engaged in an enterprise for the purpose of furthering political or social goals wholly or in part through activities that involve force or violence and a violation of the criminal laws of the United States."

Indeed, the FBI is also authorized to open a preliminary inquiry on an even lower threshold: The Bureau can begin investigating when it receives any information or allegation "whose responsible handling requires some further scrutiny." Preliminary inquiries can be conducted without headquarters approval for 90 days, during which the FBI can conduct interviews, contact confidential sources and previously established informants, and carry out physical surveillance. Preliminary inquiries can be extended with Headquarters approval.

One of the main purposes of the Smith guidelines was to make it clear that the FBI could open an investigation based on advocacy of violence. While urging respect for the First Amendment, the guidelines state: "When, however, statements advocate criminal activity or indicate an apparent intent to engage in crime, particularly crimes of violence, an investigation under these guidelines may be warranted ... ."

In any given year, the FBI engages in approximately two dozen full domestic terrorism investigations. Over the years since the Smith guidelines were adopted, nearly two thirds of these full investigations were opened before a crime had been committed. The FBI has investigated right-wing, anti-government, anti-tax, paramilitary and militia groups under this authority. The FBI's characterization of White American Resistance (WAR) is typical: After opening a domestic terrorism investigation of WAR, the FBI stated "No known acts of violence have as yet been attributed to WAR; however, leaders of the group have been encouraging members to arm themselves."

The FBI has been successful in preventing terrorist crimes before they occurred. In 1993, for example, the FBI arrested several skinheads in Los Angeles after a lengthy investigation determined that they has been discussing and planning attacks on a black church, Jewish targets and other religious targets.

Calling something a church or a religious organization does not immunize it from investigation. In fact, a number of the white supremacist groups investigated by the FBI had assumed a religious mantle, under the "Christian Identity" philosophy. The FBI investigated under the terrorism guidelines the Yahweh Church, a militant black group in Miami, and other religious groups.

Nothing in law or logic prohibits the FBI from opening investigations based on public source material or reports from private civil rights groups like the Southern Poverty Law Center. The FBI opens investigations based on any credible source, including news reports. For example, the FBI opened a civil rights investigation into the Rodney King case as soon as officials saw the broadcast of the videotape. And the Justice Department has met with abortion rights activists to solicit information about groups that may be planning attacks on abortion clinics.

The FBI has a state of the art, on-line computer database known as the Terrorist Information System containing information on suspected terrorist groups and individuals. The system has over 200,000 individuals and over 3000 organizations or enterprises. The individuals indexed include not only subjects of investigations but also known or suspected members of terrorist groups, associates, contacts, victims and witnesses. The organizations or enterprises include not only terrorist groups but also affiliated organizations or enterprises. TIS allows the FBI to rapidly retrieve information and to make links between persons, groups or events.

There appears to be a growing problem of disaffected loners who cut themselves off from all groups. An increased effort to monitor anti-government groups is unlikely to identify these loners, who may pose the greatest threat. In this context, the enterprise concept that serves as the basis of the Smith guidelines -- and that serves as the basis for calls for greater infiltration of groups -- may be irrelevant.

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