New U.S. Justice Department guidelines handed down to the FBI and put into effect on Dec.1 have concerned many in Arab American, American Muslim and other communities. Some believe the new rules put them at greater risk of being treated unfairly or unreasonably subjected to investigation.

Special Agent in charge of the FBI Detroit office Andrew Arena

Andrew Arena, special agent in charge of the FBI Detroit office, insists there will no profiling under the new regulations and that the FBI is responsible for protecting civil rights, just as it is for ensuring security.
But anxiety remains high among groups who have experienced increased scrutiny since 9/11.

“The main issue of concern is the additional, wide powers granted to the FBI to launch an investigation,” said Imad Hamad, regional director for the American-Arab Anti-Discrimination Committee (ADC).

Hamad said that under the new guidelines, what determines whether an FBI investigation can be opened is now an administrative process, rather than a judicial process.

He said there are deep fears in the community that “the typical checks and balances are no longer there.”

But Arena said the standard of probable cause will continue to be upheld.

“All of our people have been trained in the guidelines,” he said. “You cannot profile. You cannot open a case based on race, religion or ethnicity… The guidelines say ‘You will not base these (investigations) on race…'”

The new guidelines allow FBI agents to utilize preliminary probe techniques in potential counter-terrorism cases for the first time.

Arena said that in the past, if an FBI office received tips about possible criminal activity, agents could begin running names through databases only in non-terrorism-related cases.

Since Dec. 1, rules have been consolidated into one clear set, rather than divided into five different categories of criminal activity.

The new guidelines also allow the use of undercover sources, pretext interviews — in which agents ask questions without identifying themselves — and physical surveillance on suspects without absolute evidence of wrongdoing.

But Arena said such intrusive techniques require a high level of approval in an advanced stage of an investigation.

“To get to those techniques, you’re down the road,” he said. “As techniques become more intrusive, the level of authority [needed for approval] grows.”

He said opening any counter-terrorism investigation out of the Detroit office, even in preliminary assessments, approval is needed from himself, the assistant agent in charge and their head legal counsel.

Arena describes the changes as “a method to manage the cases, to make the rules uniform.”

When asked if the new rules make it more likely, for example, for a mosque to be monitored by undercover agents, Arena said such activity would require review on a national level.

“That’s going back to Washington,” he said. “We have to have a a full-fledged investigation… probable cause that there’s something going on, for something as intrusive as sending sources into religious institutions.”

False tips have been an issue in the past, Arena and Hamad said, and informants offering false information with malicious intent have been prosecuted, but the FBI does accept anonymous tips.

“We try to get people to tell us who they are,” Arena said about the issue, another major concern among Arab Americans.

Hamad said the FBI has been open and genuine in reaching out to the Arab American community to address worries, but that the changes remain hard to swallow.

“The assurances are good, but they are not good enough to suggest that these investigations are not going to take place,” he said.

Arena said he doesn’t believe in sacrificing liberty for safety, and that the FBI as a whole takes defending the civil rights of Arab Americans, as well as Blacks, Hispanic, Muslims and other groups, very seriously.

He said extensive training on the implementation of the guidelines and strict adherence to anti-profiling rules will prevent violations.

“It’ll safeguard everybody’s rights,” he said.

He said the new guidelines in some cases make initiating investigations more difficult.

“These [guidelines] affect all of our investigations,” he said.

“My worst fear is that we make a mistake. It’s my job to make sure we don’t make that mistake.”

Every investigation must satisfy three basic criteria before being pursed: There must be a clear, legitimate purpose for an investigation, resources can’t be wasted on unnecessary activity and opening a case can’t be based on race, ethnicity, religion or anything protected by the First Amendment.

But many remain nervous.

“People are talking about it and are watching closely,” said Hamad.

He said that since the new guidelines kicked in, ADC has received an unusual number of calls from people who believe they’re being watched.

“I don’t know if they are imagining it… but people think they are being followed,” he said.

Arena insists there has not been, and will not be an increase in the number of cases investigated by the FBI.

“There’s not going to be a great number of cases opened,” he said. “None of that stuff is going to happen… Things have not changed in this office.”

Hamad believes the guidelines were rushed into implementation.

“No one within the larger American civil liberties family approves of it or sees it as something to enhance the ability of the FBI. We all are for safety, but everybody was asking the simple question ‘why the rush? why does it have to be now?'”

Arena said plans to modify the guidelines have been in the works since 2002.

“After 9/11 they started talking about changing — streamlining the guidelines,” he said.

Some changes were made immediately after the attacks, but the guidelines weren’t combined as they are now.

“There was kind of a cry within the FBI that ‘this doesn’t make any sense,'” Arena said.

He said cases in which lines were blurred as to what category they belonged in were tough to pursue.

“It was really very burdensome,” he said. “It made no sense to have these separate guidelines.”

Hamad said Arena and the Detroit FBI office have made an effort to show the best of intentions, but he worries about other places throughout the country where there aren’t as many minority, ethnic and religious groups to answer to.

“In Michigan, we have a unique opportunity, due to the ongoing dialogue,” he said.

Arena said the FBI as a whole is adamant about not risking the trust of communities anywhere.

“We cannot make a mistake. We cannot violate somebody’s rights,” he said. “Nobody’s taking these things lightly.”

He said all agents have been required to go through extensive training on proper implementation of the new guidelines, and that he’s been through about six training sessions himself.

“I hope the community sees, as time goes on, that their rights are not being violated,” Arena said.

Hamad said that anyone who becomes aware or suspects that they’re placed under surveillance or investigated should immediately contact an attorney.

“I don’t see a reason for people to panic,” he said. “But it is serious and should not be taken lightly and people should be reminded of their basic civil rights.”

Delia Habhab contributed to this report