Report Raises Serious Concerns About FBI’s Surveillance of Religious Organizations and Journalists
Quis custodiet ipsos custodes? Roughly translated, this means “Who guards the guardians?”
While many attribute the phrase to the Roman poet Juvenal, I first heard it in an episode of Justice League Unlimited, a kids’ cartoon about the adventures of Superman, Batman, and their assorted costumed friends. It’s an apt phrase for contextualizing the recent news concerning the FBI and its use of assessments to surveil and investigate Americans at whim.
Nearly four years after an initial request from Reps. Jamie Raskin (D‑MD) and Nancy Mace (R‑SC), the Government Accountability Office (GAO) finally released a “For Official Use Only” report on the bureau’s use of assessments from 2018 to 2024. The findings raise serious questions about the oversight of an agency with a long track record of constitutional abuses.
Assessments are an investigative authority created by the Office of the Attorney General to aid the agency in domestic FBI operations. The power lacks statutory or legal authority.
Instead of an independent review, the FBI relies on its staff to report instances of “noncompliance” with its assessment policy.
Instead of an independent review, the FBI relies on its staff to report instances of “noncompliance” with its assessment policy. Of course, when violations are self-reported, they’re also likely to be underreported, as the agencies’ own Legal Compliance and Enterprise Risk Unit concluded.
When the Department of Justice made recommendations for corrective action, the FBI largely ignored them. Bizarrely, the FBI states it is “unaware of other methods besides self-reporting to identify noncompliance,” despite the agency having never attempted to find another method.
The report states, “FBI officials have not assessed whether using self-reported instances of noncompliance is an effective tool to identify noncompliance or what other tools may exist besides inspections and review.”
The bureau shows no interest in determining whether the authority is working or whether any potential abuses have occurred as a result of it, stating that it believes it is neither “feasible nor necessary” for the agency to audit every program.
Yet the FBI headquarters failed to track or implement recommendations from the Department of Justice National Security Reviews. To date, the agency has not shared relevant information from these reviews with other field offices.
With cases like Operation “Arctic Frost,” in which the bureau violated federal policies to initiate investigations into President Donald Trump, then-Vice President Mike Pence, and other high-profile figures, can the FBI be trusted to police itself? (RELATED: Arctic Frost and the Constitutional Risks of Secret Subpoenas Against Lawmakers)
Under the FBI’s Domestic Investigations and Operations Guide, assessments don’t require a “particular factual predication,” meaning they require no specific facts about a crime or threat.
From 2018 through 2024, the FBI opened “about 127,000 assessments,” of which over 1,000 involved government employees, politicians, religious organizations, and media institutions.
There are five types of assessments, any of which can be initiated by multiple FBI divisions, though they are primarily opened and conducted by field offices. Once opened, an FBI supervisor must determine whether to close the assessment with no further action or transition it to one of three formal investigation types: preliminary, full, or enterprise.
Since assessments allow the FBI to obtain and retain information on targets, there’s reason to question whether they violate the Fourth Amendment’s protections against unreasonable searches and seizures.
Here’s an example of what it takes to initiate an assessment, according to the report.
If a marina owner contacts a local FBI office with a tip that five Middle Eastern males just rented a boat for 3 days, asked for marine charts, and asked the owner to circle military installations and nuclear power plants on them, the FBI can conduct an assessment. According to department policy, this would constitute potential for “criminal activity” or a “threat” to national security, thereby providing an “authorized purpose.”
Patrick Eddington, senior fellow at the Cato Institute, describes assessments as a “de facto end-run around the Fourth Amendment.”
“The Bureau shouldn’t be collecting and storing data on Americans unless they’re wanted for a federal crime, but assessments allow them to do exactly that,” he adds. “It’s clear from GAO’s report that the Bureau as an institution does not take potential or known assessment-related abuses seriously.”
In response to questions from The American Spectator, the GAO declined to comment, calling the report “law enforcement sensitive,” adding it should “not be public.”
The impetus to close ranks appears to be at odds with the GAO’s mission, which describes itself as a “Congressional Watchdog,” a supposedly independent body working for the representatives of the American people.
The Department of Justice, members of the Senate Select Intelligence and Judiciary Committee, Reps. Raskin and Mace, and the FBI did not respond to questions from The American Spectator.
Like Section 702 of the Foreign Intelligence Surveillance Act, programs meant to keep Americans safe can just as easily be misused. Section 702 led to the unconstitutional collection of “incidental” data on Americans, the scope of which is still undetermined since the FBI failed to follow federal reporting procedures.
Eddington says we need a “new Church Committee” to identify federal law enforcement practices that violate the Constitution, urging Congress to “take legislative action to end them.”
Tosin Akintola is an editorial intern at The American Spectator.
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