The following is a simplified* version of Part IIIB of the Durham Report, “The FBI’s Assessment and Investigation of Counterintelligence Matters.”
Counterintelligence Investigation Guidelines
The FBI has a set of guidelines that it follows when investigating counterintelligence matters. These guidelines are designed to protect the privacy and civil liberties of individuals, while also ensuring that the FBI is able to investigate and prevent threats to national security.
The FBI’s counterintelligence guidelines are based on the principle of using the least intrusive investigative techniques feasible. This means that the FBI will only use more intrusive techniques, such as electronic surveillance or physical searches, if they are necessary to investigate a threat.
The FBI also has a process for identifying and handling sensitive investigative matters. These matters are typically those that involve political candidates or organizations, or that could have a significant impact on public opinion. In these cases, the FBI takes additional steps to protect the privacy and civil liberties of individuals involved in the investigation.
The FBI’s counterintelligence guidelines are designed to ensure that the FBI is able to investigate and prevent threats to national security, while also protecting the privacy and civil liberties of individuals.
The Four Levels of FBI Investigation
- Activity authorized prior to opening an assessment: The FBI can conduct limited steps to evaluate information, such as looking at government records and at commercially and publicly available information. The FBI can also conduct a voluntary clarifying interview of the person who provided the information.
- Assessment: The FBI can open an assessment if it has an authorized purpose and a clearly defined objective. The FBI can recruit and use confidential human sources, conduct physical surveillance in 72-hour increments, and obtain some grand jury subpoenas.
- Preliminary investigation: The FBI can open a preliminary investigation if there is information or an allegation that a federal crime or threat to the national security may be occurring. The FBI can use undercover operations, trash covers, consensual monitoring, pen registers, national security letters, and polygraphs. The FBI can also conduct physical searches and use monitoring devices that do not require judicial authorization.
- Full investigation: The FBI can open a full investigation if there is an articulable factual basis for the investigation that reasonably indicates that a federal crime or a threat to the national security is or may be occurring. The FBI can use all lawful methods, including court-authorized electronic surveillance and physical searches.
Confidential Human Sources (CHS)
The FBI has guidelines for how they use human sources, or CHSs. These guidelines require that the FBI:
- Validate a CHS before they can be used as a source.
- Review the CHS’s file at least annually.
- Instruct the CHS to provide truthful information
- Instruct the CHS to abide by the FBI’s instructions.
Review of CHS Guidelines
In 2020, the FBI undertook a “comprehensive review” of the 2006 CHS Guidelines to ensure that the FBI’s source validation process was wholly refocused, revised, and improved across the FBI.
The 2020 CHS Guidelines thus provide additional direction to the FBI in the handling of human sources. They require information about:
- whether the CHS is reasonably believed to be a current or former subject or target of an FBI investigation
- a source’s reporting relationship with other government agencies
The Attorney General also directed that he or the Deputy Attorney General must approve “any use” of a CHS
The FBI’s Confidential Human Source Policy Guide also includes new or strengthened requirements and implements portions of the Sensitive Investigations Memorandum. These requirements include:
- identifying the specific source-related activities in which FBI intelligence analysts and other non-agent personnel may engage
- requiring information about all likely motivations the CHS could have for providing information
- enhancing the requirements for source validation reviews
- requiring detailed information and additional approvals in a request to reopen a CHS who was previously closed for cause, either by the FBI or another agency
Finally, the CHS Policy Guide requires a CHS to be treated as “sensitive” and thus subject to more controls based on either:
- the position the source holds, or
- the position held by someone the source is reporting on.
So, for example, even though a CHS may not hold a position in a campaign, if the source is reporting on such a person he/she would still be treated as sensitive.
Post-Crossfire Hurricane, the Guide now provides this example:
“A CHS with indirect access to a U.S. Presidential campaign is tasked to report on campaign activities involving possible cooperation with foreign entities to influence the outcome of a U.S. Presidential election. The CHS had only indirect access, but his or her affiliation nevertheless enabled the CHS to be tasked to collect information on the campaign.”
The FBI also has guidelines for how they conduct analytic integrity.
These guidelines say that the FBI’s Counterintelligence Division should work with the Directorate of Intelligence to ensure that intelligence products are:
- objective; and
- independent of political considerations.
The Intelligence Community has an Analytic Ombudsman who investigates incidents of politicization of intelligence.
The Ombudsman’s assessment found that:
- Some China analysts were reluctant to bring their analysis forward because they disagreed with the Administration’s policies.
- Some Russia analysts were frustrated because management was slowing down or not wanting to take their analysis to customers.
Politically Sensitive Activities
The Attorney General issued a Sensitive Investigations Memorandum in 2020 that imposes additional approval requirements for politically sensitive activities.
This memorandum requires the FBI to:
- Give prompt written notice to the appropriate Assistant Attorney General and U.S. Attorney if they take “exploratory investigative steps relating to” a presidential candidate, a senior staff member, or an advisor.
- Review their existing policies governing notification, consultation, and/or approval of politically sensitive investigations.
- Study their experiences after the 2020 elections to consider whether changes to the requirements are necessary.
The OIG’s review of Crossfire Hurricane discusses defensive briefings for those who may be targets of nefarious activities by foreign powers and, specifically at the time of the investigation, the possibility of conducting a defensive briefing for the Trump campaign on Russian activities.
The Review says that:
“We did not identify any Department or FBI policy that applied to this decision and therefore determined that the decision whether to conduct defensive briefings in lieu of opening an investigation, or at any time during an investigation, was a judgment call that is left to the discretion of FBI officials.”
It went on to suggest that the FBI should develop a policy on defensive briefings to ensure that they are conducted in a consistent and transparent manner.
The Department of Justice and the FBI have taken steps to address the issue of defensive briefings.
- The Attorney General has instructed the FBI Director to promulgate procedures concerning defensive briefings.
- The FBI has also established a Foreign Influence Defensive Briefing Board (“FIDBB”).
- The FIDBB is responsible for evaluating whether and how to provide defensive briefings to affected parties.
- The FIDBB uses consistent, standardized criteria to determine whether notification is warranted and appropriate in each case.
- These criteria are guided by principles such as the protection of sources and methods and the integrity and independence of ongoing criminal investigations and prosecutions.
Simplified with artificial intelligence and edited and organized by Dr. Dannielle Blumenthal (Dossy). All opinions are the author’s own.