Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. Nos. 74 C 3268 and 75 C 3295 -- Susan Getzendanner, Judge.
Cudahy, Posner, Circuit Judges and Dumbauld,*fn* Senior United States District Judge.
DUMBAULD, Senior U.S. District Judge.
On March 7, 1983, Attorney General William F. Smith announced new guidelines to govern "Domestic Security/Terrorism Investigations" by the Federal Bureau of Investigation (FBI). Separate actions were brought by appellees Alliance to End Repression (Alliance) and American Civil Liberties Union (ACLU) to enjoin enforcement of certain parts of said guidelines on the ground that they conflict with the terms of a settlement agreement (hereinafter referred to as the consent decree) approved by District Judge Susan Getzendanner on August 11, 1981, in class actions brought by appellees herein at Nos. 74 C 3268 and 75 C 3295, and reported at 91 F.R.D. 182 (N.D. Ill. E.D. 1981).*fn1 On August 18, 1983, Judge Getzendanner granted a permanent injunction.*fn2
The only provision enjoined was that stating:
When, however, statements advocate criminal activity . . . an investigation under these Guidelines may be warranted unless it is apparent, from the circumstances or the context in which the statements are made, that there is no prospect of harm. [Appellants' Brief, p. 17a; 561 F. Supp. at 583.]
Paragraph 3.6 of the consent decree contemplates that the provisions of paragraph 3.5 regulating investigative activities in Chicago shall be superseded by future federal statutes or executive orders or Department or Bureau regulations or guidelines
"Provided, that future or amended written Departmental or Bureau regulations, guidelines, or other procedures, or conduct relating to the use of investigative techniques described in Paragraph 3.5 shall be in accordance with the principles stated in Paragraph 3.4, and the applicable provisions of federal statutes and the United States Constitution." [Joint Appendis (J.A.) 22]
Paragraph 3.4(a) of the consent decree prescribes as a general principle applicable to FBI activities in Chicago:
The FBI, in conducting domestic security investigations and inquiries, shall be concerned only with conduct and only such conduct as is forbidden by a criminal law of the United States, or by a state criminal law when authorized by federal statute. The FBI shall not conduct an investigation solely on the basis of activities protected by the First Amendment of the Constitution of the United States, or on the lawful exercise of any right secured by the Constitution or laws of the United States. [J.A. 19]
The above paragraph embodies the distinction recognized in the challenged Smith guidelines between "preliminary inquiries" (which "shall be promptly terminated when it becomes apparent that a full investigation is not warranted") and "investigations." Investigations must be "based upon a reasonable factual predicate and shall have a valid law enforcement purpose."
The guidelines then proceed to the paragraph the last sentence of which was stricken down by the District Court's decision:
In its efforts to anticipate or prevent crime the FBI must at times initiate investigations in advance of criminal conduct. It is important that such investigations not be based solely on activities protected by the First Amendment or on the lawful exercise of any other rights secured by the Constitution or laws of the United States. When, however, statements advocate criminal activity or indicate an apparent intent to engage in crime, particularly crimes of violence, an investigation under these Guidelines may be warranted unless it is apparent, from the circumstances of the context in which the statements are made, that there is no prospect of harm. [J.A. 77]
Investigations include "general crimes investigations" (J.A. 81) and "criminal intelligence investigations" (J.A. 83), which are subdivided into "racketeering enterprise investigations" (J.A. 84) and "Domestic Security/Terrorism Investigations" (J.A. 87). This last category is the type of investigation under scrutiny in the case at bar, and to which the challenged guidelines are addressed.
The definition of criminal intelligence investigations and the policies to be practiced in their conduct are set forth clearly in the guidelines. These investigations deal with "enterprises." Such enterprises may
seek either to obtain monetary or commercial gains or profits through racketeering activities or to further political or social goals through activities that involve criminal violence. These investigations differ from general crimes investigations . . . in several important respects. As a general rule, an investigation of a completed criminal act is normally confined to determining who committed that act and with securing evidence to establish the elements of the particular offense. . . . An intelligence investigation of an ongoing criminal enterprise must determine the size and composition of the group involved, its geographic dimensions, its past acts and intended criminal goals, and its capacity for harm. While a standard criminal investigation terminates with the decision to prosecute or not to prosecute, the investigation of a criminal enterprise does not necessarily end, even though one or more of the participants may have been prosecuted.
In addition, the organization provides a life and continuity of operation that are not normally found in a regular criminal activity. As a consequence, these investigations may continue for several years. Furthermore, as Justice Powell noted, the focus of such investigations "May be less precise than that directed against more conventional types of crime." United States v. United States District Court, 407 U.S. 297, 322, 32 L. Ed. 2d 752, 92 S. Ct. 2125 (1972). Unlike the usual criminal case, there may be no completed offense to provide a framework for the investigation. It often requires the fitting together of bits and pieces of information many meaningless by themselves to determine whether a pattern of criminal activity exists. For this reason, the investigation is broader and less discriminate than usual, involving "the interrelation of various sources and types of information." Id.
Members of groups or organizations acting in concert to violate the law present a grave threat to society. An investigation of organizational activity, however, may present special problems particularly where it deals with politically motivated acts. "There is often a convergence of First and Fourth Amendment values," in such matters that is "not found in cases of 'ordinary' crime." Id. Thus special care must be exercised in sorting out protected activities from those which may lead to violence or serious disruption of society. As a consequence, the guidelines establish safeguards for group investigations of special sensitivity, including tighter management controls and higher levels of review. (J.A. 83-84, italics supplied)
With respect to domestic security/terrorism investigations the guidelines explain that these deal with "enterprises, other than those involved in international terrorism, whose goals are to achieve political or social change through activities that involve force or violence." Like racketeering enterprise investigations, they are "concerned with the investigation of entire enterprises, rather than individual participants and specific criminal acts," and include ...