FEINGOLD: All right.
You mentioned in your testimony that you’re trying to determine whether the attorney general guidelines governing the FBI’s investigative activities can be, quote, “consolidated and harmonized.” According to a report by AP last week, the department will put in place revised guidelines later this summer that will permit the FBI to open preliminary inquiries of Americans, quote, “without any evidence of wrongdoing, relying instead on a terrorist profile that could single out Muslims, Arabs or other racial and ethnic groups,” unquote.
And according to the article, quote, “Among the factors that could make someone subject of an investigation is travel to regions of the world known for terrorist activity, access to weapons or military training, along with a person’s race or ethnicity,” unquote.
So let me ask you first, under these new guidelines will the fact that a person is of a certain ethnicity or national origin be enough, without any evidence of wrongdoing, to justify a preliminary inquiry?
And that is — that represents no change from prior rules that said that we — that says that we don’t use that as the basis alone for predicating an investigation into anyone.
These new regulations are a part of a process — I don’t mean to be more expansive than you want, and please cut me off if I…
FEINGOLD: Well, let me just do a follow-up question to get the specifics. Thank you for that clear answer. But let me try this one.
What about if a person is a U.S. citizen of Pakistani descent who has traveled frequently to Pakistan? Now, would that be enough to potentially…
FEINGOLD: … let me finish — to potentially trigger an investigation?
MUKASEY: I think the circumstances of a person’s travel would be one element or may be one element in determining whether a person is appropriate for conducting an inquiry.
But I think it’s useful to point out that this is part of an ongoing process that’s gone on really since right after September 11, and that’s gone on with the urging of bipartisan commissions, including the 9/11 Commission, including the Silberman-Robb commission, that the FBI not only be a crime-solving organization, but be an intelligence-gathering…
FEINGOLD: And I respect that. I’m a member of the Intelligence Committee.
But my specific question was whether the frequency of travel by a U.S. citizen of Pakistani descent to Pakistan in and of itself would be sufficient to potentially trigger an investigation.
MUKASEY: I think the regulations, before they come out, will be made known to this committee, will be reviewed with this committee, and certainly before their effective date will be reviewed with this committee.
MUKASEY: And I’m not prepared to discuss today particular hypotheticals one way or the other, particularly unmoored from any other evidence that’s in the hands of investigators.
What I do want to point out, though, is that the investigations take regulations that apply to the opening of criminal investigations from regulations that may apply to the opening of intelligence investigations and try to harmonize them so we don’t have cross- cutting…
FEINGOLD: Let me just ask one more question before my time ends. And I appreciate your response on this.
What about if such a person also owns a gun? Which, by the way, the Supreme Court just has definitively held is an individual constitutional right; a decision I agree with. Might that person be investigated by the FBI based on that information alone?
MUKASEY: Senator, again, I don’t want to get into what-ifs when — before the regulations go into play.
I should point out that when I was a judge I presided over a case in which First Amendment expression was proved as part of the case in which otherwise confidential conversations were proved as part of a case, because along with other evidence they were relevant in determining whether the defendants in that case were guilty.
So I think it’s very important to consider all of these matters in context.
And I think the regulations will assure that the nature of evidence to be gathered and the way that it’s gathered is subject to review, and also so that it becomes apparent that not only have the ways in which the FBI goes about gathering evidence has been changed but also the oversight both within the FBI and within the Justice Department and NSD (ph) has been enhanced to keep track with and to keep pace with the increased authority of the FBI to gather intelligence.
And I think…
FEINGOLD: I’ll be following this very closely and… (CROSSTALK)
FEINGOLD: I look forward to working with you on this matter as it evolves.
Thank you, Mr. Chairman.