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b. Assessment

The FBI may open an assessment if it has an authorized purpose and a clearly defined objective. No particular factual predication is required, but the basis for opening an assessment “cannot be arbitrary or groundless speculation.” In addition to the techniques that are authorized without opening an assessment, in an assessment the FBI may recruit and use CHSs, conduct physical surveillance in 72-hour increments, and obtain some grand jury subpoenas. An FBI employee should be able to explain the reason for the use of particular investigative methods.[1]

c. Preliminary investigation

The factual predicate required to open a preliminary investigation is “information or an allegation” that a federal crime or threat to the national security “may be” occurring. Authorized investigative methods include undercover operations, trash covers, consensual monitoring, pen registers, national security letters, and polygraphs. The FBI may also conduct physical searches and use monitoring devices that do not require judicial authorization. A preliminary investigation is to last a relatively short time and lead either to closure or a full investigation.[2]

d. Full investigation

The standard for opening a full investigation is “an articulable factual basis for the investigation that reasonably indicates that … [a]n activity constituting a federal crime or a threat to the national security … is or may be occurring … and the investigation may obtain information relating to the activity.”[3] The DIOG gives as examples of sufficient predication to open a full investigation:

  • “[C]orroborated information from an intelligence agency” stating “that an individual is a member of a terrorist group.”
  • “[A]n analyst discovers on a blog a threat to a specific home builder and additional information connecting the blogger to a known terrorist group.”[4]

The FBI may use “all lawful methods” in a full investigation, including court-authorized electronic surveillance and physical searches.[5]

3. The Confidential Human Source Guidelines

In addition to the AGG-Dom, the Attorney General has approved separate guidelines governing the FBI’s use of human sources. The guidelines in place at the time of Crossfire

  1. ↑ Id. §§ 5.1; 18.5; 18.5.8.3.2.
  2. ↑ See id. § 6.7.2 (“Extensions of preliminary investigations beyond one year are discouraged and may only be approved … for ‘good cause’”); see also id. § 6.7.2.1 (describing “good cause” and focusing on need to move to a full investigation or to closure); AGG-Dom § II.B.4.a.ii (requiring approval to extend a preliminary investigation beyond six months).
  3. ↑ Id. §§ II.B.3.a; II.B.4.b.i.
  4. ↑ DIOG § 7.5.
  5. ↑ AGG-Dom § II.B.4.b.ii; see also id. § V.A.11–13.

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