Barr’s first task as AG: Look at former FBI leaders’ conduct

Barr’s first task as AG: Look at former FBI leaders’ conduct
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During the Senate Judiciary Committee’s interview of attorney general nominee William Barr last Tuesday, committee chairman Sen. Lindsey GrahamLindsey Olin GrahamGraham says Trump should be allowed to undo DACA order The Hill's 12:30 Report: Dems, GOP dig in for public impeachment hearings The Hill's Morning Report - Witness transcripts plow ground for public impeachment testimony MORE (R-S.C.) asked: “Are there rules on how you can do counterintelligence investigations in the FBI?”

Barr replied, “I believe there are.”

Indeed there are, Mr. Barr. There are very specific rules governing the FBI’s ability to initiate and conduct counterintelligence investigations. These rules bear the title of the role you soon may take on for the second time. They are referred to as the “Attorney General Guidelines,” or AGG.

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Please read and understand them. This may seem like a basic request to make of an attorney general, but there are strong indications that key players at the top of the FBI and Department of Justice (DOJ) — who were at the center of the saga we, as a nation, have endured over the past two years — were not at all familiar with these vitally important guidelines.  

The AGG exist for one fundamental reason: to protect Americans from investigation by their government based on caprice, curiosity, resentments, or differences of political, religious, policy and cultural opinion.  

The AGG  help to ensure this protection by establishing thresholds the FBI must meet before it can launch a counterintelligence investigation, particularly against what the guidelines refer to as a “U.S. person,” that is, a U.S. citizen or permanent resident.  

Under the guidelines, before the FBI can initiate an investigation it must articulate facts that reasonably indicate a U.S. person may be acting on behalf of a foreign government or entity. Even then, the investigative techniques the FBI can deploy are severely limited and fairly benign. For example, the FBI cannot leverage Foreign Intelligence Surveillance Act (FISA) court-ordered interceptions or task informants at this stage of its investigation.  

The FBI must use this preliminary stage of less-intrusive investigative techniques to determine if further, more intrusive investigation is warranted. The AGG impose firm time limits on the FBI at this stage to help ensure investigations don’t become open-ended.  

The FBI can deploy more intrusive techniques such as FISA interceptions and informants if, after the preliminary stage, it is able to articulate additional facts that are more like a “probable cause” statement. In other words, there are strong, objective indicators that the investigative target is probably working on behalf of a foreign government against the national security interests of the United States.  

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Forgive the pedantic explanation, Mr. Barr, but at the heart of all of the controversy surrounding the behaviors of FBI leadership in 2016 and 2017, and even the subsequent special counsel investigation, rests a fundamental question: Did the counterintelligence investigation of the Trump campaign, initiated by then-Director James ComeyJames Brien ComeyThere are poor ideas, bad ones and Facebook's Libra Trump has considered firing official who reported whistleblower complaint to Congress: report Broadcast, cable news networks to preempt regular programming for Trump impeachment coverage MORE and conducted by a team of FBI agents at FBI headquarters that he selected, meet the requirements of the AGG? Were there facts sufficient, under the AGG, for the FBI to even initiate a counterintelligence case?

It is not clear that this fundamental question has been asked and answered yet, despite congressional hearings and oversight and ongoing inspector general investigations. Thus Sen. Graham’s plaintive follow-up request of you, Mr. Barr: “Please get to the bottom of it.

Yes, Mr. Barr, if you are confirmed, please do. This is important to the nation and our democracy.  Please start at the beginning, where the basic blocking and tackling required by your own AGG would have been most operative and protective. This is where solid, time-tested process protects against bias. If the guidelines were followed well, we can be reassured and take comfort. If they were not, there is work to be done to ensure all of this never happens again.  

Unfortunately, there are fact patterns that indicate the AGG may have been an early casualty of Director Comey’s decision to initiate a counterintelligence investigation of the Trump campaign.  

First, there seemed to be, according to his and then-Deputy Director Andrew McCabeAndrew George McCabeThe curious timeline for taking down Trump Federal prosecutors interviewed multiple FBI officials for Russia probe review: report Brendan Gleeson lands Trump role in CBS miniseries based on Comey memoir MORE’s own testimony, a heavy reliance on information generated by opposition party funding. This does not rise to the reasonableness standards of the AGG for starting a case.

Second, Comey took the highly unusual step of opening and conducting the counterintelligence investigation at FBI headquarters rather than an FBI field office, where all other FBI investigations are carried out. If there was a good reason for this, none has been offered. Those of us who served in the FBI can think of many, many reasons why it is a terrible idea.   

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FBI headquarters is not set up to run an investigation, to monitor and meet all the dense administrative protocols of the AGG, like a field office does on a daily basis. The likelihood of compliance failures is immense. In addition, headquarters leadership is where the FBI most closely intersects with political Washington. For this reason alone, they are traditionally and prudently not involved in active investigations — that is, until Comey, McCabe and former agent Peter Strzok.

The special counsel, who under the law is also obligated to adhere to the AGG, was established in May 2017 and ordered to take over the FBI counterintelligence investigation started by Comey. The authorizing memo written by Deputy Attorney General Rod RosensteinRod RosensteinDemocrats ask judge to force McGahn to comply with subpoena Democrats ask court to force DOJ's hand on Mueller grand jury materials Washington celebrates diplomacy — and baseball — at Meridian Ball MORE instructed the special counsel to examine “any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald TrumpDonald John TrumpTrump faces high stakes in meeting with Erdoğan amid impeachment drama Democrats worry they don't have right candidate to beat Trump Trump threatening to fire Mulvaney: report MORE.”

That statement, Mr. Barr, is an insufficient basis for initiating a counterintelligence case under the AGG, particularly when the targets include U.S persons. It alludes to no information that provides indications that some American was directly acting as an agent on behalf of Russia but, instead, coins a phrase of lesser relationship — i.e. “links and/or coordination” — that heretofore never has been a sole basis for unleashing FBI authorities.  

Thousands of Americans in business, academic, cultural, media, political governance and diplomatic pursuits have daily links and coordinated engagement with the Russian government. These links, on their own, do not condemn them to suspicion of being Russian agents and therefore subject to intrusive investigation. Thank goodness.

The clearly revealed political biases of the now-fired FBI leadership that initiated and ran an unusual, unprecedented counterintelligence investigation — of a presidential campaign, of all things — has given rise to the unfortunate perception that the FBI may have been weaponized for raw political purposes — precisely what the AGG were established and codified to prevent.

Mr. Barr, if confirmed, please do take a careful look at whether the FBI met its obligations under the Attorney General Guidelines from Day One. If it did, inform and reassure the nation. If it didn’t, please reinforce the AGG’s just imperatives or risk further abuse in the future and the sure erosion of what distinguishes our system of justice from totalitarian regimes.

For the sake of the integrity of both political parties, for the sake of the nation, and for the sake of the good men and women of the FBI and DOJ, this is important.

Kevin R. Brock, former assistant director of intelligence for the FBI, was an FBI special agent for 24 years and principal deputy director of the National Counterterrorism Center (NCTC). He is a founder and principal of NewStreet Global Solutions, which consults with private companies and public-safety agencies on strategic mission technologies.