In a similar vein, Deputy Attorney General Rosenstein stated that “we do not hold press conferences to release derogatory information about the subject of a declined criminal investigation.” He went on to say that “[d]erogatory information sometimes is disclosed in the course of criminal investigations and prosecutions, but we never release it gratuitously.”[1]
B. The FBI’s Assessment and Investigation of Counterintelligence Matters
This subsection describes the requirements that apply to the FBI’s assessments and investigations of counterintelligence matters. The AGG-Dom gives the FBI a broad mandate to “detect, obtain information about, and prevent and protect against federal crimes and threats to the national security.”[2] These crimes and threats include espionage and other intelligence activities and foreign computer intrusions.[3] The AGG-Dom provides that “[t]hese Guidelines do not authorize investigating or collecting or maintaining information on United States persons solely for the purpose of monitoring activities protected by the First Amendment or the lawful exercise of other rights secured by the Constitution or laws of the United States.”[4]
The requirements of the AGG-Dom are implemented and expanded upon in FBI policy.[5] In its investigative activities, the FBI is to use less intrusive investigative techniques where feasible, and investigative activity is broken down into various levels. There are also requirements in separate guidelines approved by the Attorney General governing the FBI’s use of confidential human sources (“CHSs”).[6] In 2020, the Department imposed additional requirements for politically sensitive assessments and investigations and for applications under FISA.
- ↑ Memorandum for the Attorney General from Rod J. Rosenstein, Deputy Attorney General, Restoring Public Confidence in the FBI at 1 (May 9, 2017).
- ↑ AGG-Dom § II.
- ↑ Id. § VII.S.
- ↑ Id. § I.C.3.
- ↑ See FBI, Domestic Investigations and Operations Guide (Mar. 3, 2016) (hereinafter “DIOG”).
- ↑ These are discussed in Subsection 3 below.
the unindicted….”); United States v. Anderson, 55 F. Supp. 2d 1163 (D. Kan 1999); United States v. Smith, 992 F. Supp. 743 (D.N.J. 1998). The Fifth Circuit has stated:
Nine of the ten persons named in the indictment were active in the Vietnam Veterans Against the War, an anti-war group. The naming of appellants as unindicted conspirators was not an isolated occurrence in time or context. … There is at least a strong suspicion that the stigmatization of appellants was part of an overall governmental tactic directed against disfavored persons and groups. Visiting opprobrium on persons by officially charging them with crimes while denying them a forum to vindicate their names, undertaken as extra-judicial punishment or to chill their expressions and associations, is not a governmental interest that we can accept or consider.
United States v. Briggs, 514 F.2d 794, 805–06 (5th Cir. 1975) (footnote omitted).
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