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The nomination of James B.

Comey to head the FBI presents an opportunity for the Senate Judiciary Committee to demand answers. It is essential for members of Congress and the American public to have complete picture of all the programs and authorities the FBI uses to track our daily lives, and an understanding of how those programs affect our civil rights and civil liberties. Below you will find background information on data collection, unwarranted monitoring, and racial profiling. These three areas highlight some of the critically important questions that should be raised throughout Comeys appointment process. For more background information or to be connected with other key experts or spokespeople who can talk at greater length to the specifics and the impact that these policies have please contact me directly: Sue Udry at 301-325-1201 or sue.udry@defendingdissent.org Introduction Mr. Comeys involvement in prohibiting the renewal of the Terrorist Surveillance Program is well documented, but whats less known and also critically important to the vast majority of Americans concerned with privacy, civil liberties, and the rule of law was his involvement in advocating for programs and authorities in the three areas highlighted below. 1. Blanket surveillance under Section 215 of the PATRIOT Act In testimony before the House Judiciary Committee in 2005, Comey argued that none of the most controversial provisions of the PATRIOT Act should ever sunset, including Section 215 which authorizes the collection of any tangible thing, because there are checks in place and they are appropriate. At the time, the focus was on the federal governments ability to use Section 215 to obtain library user records. Comey assured Congress that section 215 orders had been executed only for drivers license records, public accommodation records, apartment leasing records, credit card records, and subscriber information, such as names and addresses for telephone numbers captured through court-authorized pen register devices. See Comey Testimony, pg 4. Due to the Guardians recent reporting on the governments use of section 215, we know now that it has been used to gather information far beyond the categories identified in Comeys House testimony. The collection and retention of metadata turns the presumption of innocence on its head and turns everyone into a suspect. The restrictions on the use of that data are unknown. The program not only threatens the privacy of innocent Americans, but it has a chilling

effect on our democratic society. The Presidents admission that by sifting through this so-called metadata they might identify potential leads of people who might engage in terrorism, affirms that the U.S. government is relying on an Orwellian notion that by knowing what each and every one of us is doing all the time, it will be able to predict who among us will commit a crime. Key Questions on the use of Section 215: What was the FBIs role in data collection (as most Americans understand the word) and/or data mining under Section 215? What safeguards are in place to ensure that data mining procedures are legal and Constitutional? Both the executive branchs and the FISA Courts legal interpretation of Section 215 remain secret. Does Mr. Comey believe that Congress can provide adequate oversight without a full understanding of the executive and judicial branchs interpretations of the law? Was section 215 being used to order service providers to provide all telephone metadata to the NSA at the time that Mr. Comey worked in the Justice Department? Does Mr. Comey believe that the language and/or spirit of Section 215 authorizes the program described in the Guardian? Does Mr. Comey believe that Americas national security can be successfully defended by less intrusive methods?

2. Undisclosed participation The FBI has refused to disclose to either the public or Congress the policy governing the FBIs use of undisclosed participation in religious or political groups as an investigative tactic. Since early 2001, paid informants, FBI agents, and state and local law enforcement agents working through the FBIs Joint Terrorism Task Forces have infiltrated faith institutions and activist groups with no evidence or even suspicion of criminal activity. Agents and informants have often played the role of agent provocateur, instigating unlawful behavior, often by manipulating young men with developmental or psychological challenges. (See also: Foreign Policy and Washington Post) Not only have these covert domestic operations remained unaccountable to any

independent or judicial review, but the mobilization of civil society in these various sectors has demonstrably suffered as a result. Reports around the country of informants infiltrating mosques, for instance, have dramatically diminished participation by Muslim Americans in faith networks. As in the past, under COINTELPRO, the use of agents provocateur serves to discredit and undermine political movements, and to vilify members of targeted communities. Questions on Undisclosed Participation: Can congress provide adequate oversight without knowing the policy for using undisclosed participants? Should FBI agents or informants be permitted to infiltrate faith groups or activist organizations in the absence of any indication that such organizations are tied to any crime or threat? 3. Assessments and profiling The Attorney Generals Guidelines for Domestic FBI Operations were first promulgated in 1976 in the wake of FBI abuses under COINTELPRO. Since that time, the guidelines have been periodically revised to diminish their protections, most recently and most significantly by Attorney General Michael Mukasey in 2008. The Mukasey Guidelines vastly expanded the investigatory authority available to agents without any predicating facts or allegations by expanding the Assessment tier of investigative activity. The 2008 Guidelines authorized a number of intrusive investigative techniques during Assessments, including pretext interviews (conducting an interview without disclosing identity as an FBI agent), interviewing members of the public, recruiting and tasking informants to infiltrate groups, physical surveillance not requiring a court order, grand jury subpoenas for telephone or electronic mail subscriber information, and more (Guidelines, pg 19 - 20). According to data made public in 2011, only about 4% of assessments yield enough evidence to justify preliminary or full investigations. From December 2008 to March 2009, the FBI initiated 11,667 assessments, which led to only 427 preliminary or full investigations, according to the New York Times. Over a two year period from March 2009 to March 2011, FBI agents opened 82,325 assessments, which led to 3,315 preliminary or full investigations, also according to the New York Times and a 2013 Congressional Research Service Report (pg 12). The Guidelines give FBI agents broad individual discretion to investigate Americans using these techniques without reasonable suspicion of wrongdoing, and without

requiring supervisory approval or oversight. They also allow race, religion, national origin, or First Amendment protected activity to be used as a factor, among others, justifying scrutiny (See Durbin 10/03/08). Given the pressure on agents to identify unknown threats to national security before they emerge, such unchecked power invites abuse, including inappropriate profiling according to race, religion, national origin or speech advocating a particular point of view. (Also see Associated Press on NYPD surveillance)

Profiling Questions Mr. Comey has acknowledged the abuses of COINTELPRO, would he be willing to strengthen protections in the guidelines to prevent overzealous agents from using assessments as a political tool? Does Mr. Comey believe that the current Guidelines strike the right balance between aggressive terror-prevention efforts and civil liberties protections? Does Mr. Comey believe that the FBI should be permitted to gather and keep in its databases information about innocent Americans? When does Mr. Comey think it is appropriate to take race, religion, national origin, or political views into account when making investigative decisions? Are assessments an efficient use of limited resources? For further information please contact the following: Emily Berman, Brooklyn School of Law: 718-780-7927; emily.berman@brooklaw.edu Shahid Buttar, Bill of Rights Defense Committee: 202-316-9229; shahid@bordc.org

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