Constitution Daily

Smart conversation from the National Constitution Center

Q & A: A former FBI agent on new surveillance guidelines

June 28, 2011 by Holly Munson


Your favorite crime procedural drama on TV may be taking a break for the summer, but the real crime-fighting world has a little drama of its own. This month, the New York Times reported that the FBI is planning to release a new edition of its manual, the Domestic Investigations and Operations Guide, which will include changes that provide agents more flexibility as they investigate leads. The FBI has downplayed the changes, but civil liberties groups contend the changes would reduce oversight and infringe on citizens' privacy.

Photo by Flickr user cliff1066™

Some of the most discussed changes in the upcoming manual include the lessened restrictions on administering lie-detector tests, searching people's trash, and using surveillance squads during an assessment.

Another important change: currently, before an agent can search for information about a person in a commercial or law enforcement database, they are required to open an official inquiry, which creates a permanent file about that person. With the new rules, agents can do background research on databases without creating a record of it.

The discussion about these changes is a perfect example of the struggle between ensuring personal privacy and public safety--an idea the National Constitution Center invites visitors to explore with its current feature exhibition, Spies, Traitors & Saboteurs Fear and Freedom in America (created by the International Spy Museum).

To get an FBI agent's perspective on the issue, we needed to look no further than the Center's director of security, Sherman Hopkins, whose FBI career spanned 22 years.

Constitution Daily: Tell us a little bit about your work with the FBI.

Sherman Hopkins: Initially I worked at the Dallas office. My work covered personal crimes, like bank robberies, fugitives, kidnappings, and extortion. When I moved to Philadelphia my work focused on public corruption and financial crimes. I retired as a supervisory special agent.

CD: How did the Domestic Investigations and Operations Guide play into your day-to-day work?

SH: The manual itself is fairly new. It's primarily set up for intelligence gathering squads, which have increased since 9/11. I was never assigned to an intelligence gathering squad--my focus was criminal cases--however, I did some domestic terrorism intelligence gathering while I was working in the Philadelphia area.

CD: Do you think these new changes will be effective in ensuring a balance between citizens' privacy and national security?

SH: I think so. It comes down to the integrity and the supervision of the agency--and there's still going to be close supervision. If there is information stating that John Doe is suspected of funding Al Qaeda, the agent will have to convince a supervisor, a U.S. attorney or federal judge that the lead is credible. You still have to go through a lot of hoops so as not to violate any of the suspect person's constitutional rights. The goal is to eliminate or confirm the person as a suspect. Giving agents more access to databases will make it a lot more expedien for agents to do their job and eliminate potential suspects. In the past, the FBI opened an inquiry or assessment on the suspected persons. With these changes, it would preclude a file from being created on someone unless the circumstances meet the guidelines.

CD: Let's play devil's advocate. How do we know we can depend on the integrity of the agents? Should we still give them the authority to make these decisions?

SH: Sure, you can have a bad apple. However, the supervision of the agents and the guidelines have been enhanced to cover those situations. Yes, the increased authority is a good thing, as it will both expedite and enhance investigations. It will accelerate potential cases and eliminate suspects a lot quicker. The time saved will be of great benefit.

CD: Any other thoughts to share?

SH: To protect the citizens and their rights--that's what it's all about. These changes are just going to increase the efficiency in which agents are able to do their job. And the checks and balances will always be there. In a lot of ways, the FBI is limited already. The FBI is not going to consent to agents going through people's trash when it's not needed. Their resources are limited, so they'll prioritize all the aspects of their assignments.

Holly Munson is a Public Programs Experience Guide at the National Constitution Center. Her attorney father advised against law school, so she studied journalism and now enjoys writing about law (and other things) instead.

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