dissenting.
This is a case, if there ever was one, where the result dictates the rationale. It is possible to understand the very high priority which the majority accords to inquisitorial freedom at the possible expense of free speech. But it is difficult to discern exactly how the majority proposes to deal with the legal doctrines which until now I thought most clearly applicable to the interpretation of consent decrees.
While I have found it hard to pinpoint precisely what the majority has held, I think tentatively that its holding can be distilled into two propositions. First, the FBI’s agreement not to investigate “solely on the basis of activities protected by the First Amendment” meant, according to the majority, only that the FBI would decline to conduct an investigation in violation of the Constitution. Second, the majority appears to have decided that the only “unconstitutional” FBI investigations are those which are motivated solely by an unambiguous desire to suppress a political movement. On the other hand, investigations motivated by some (perhaps dimly discernible) law enforcement purpose are in all instances constitutional. In my view, the majority’s reading of the Decree as a restatement of the Constitution is wholly incredible. And, in any event, neither the majority nor anyone else has suggested a guide to what the constitutional limitations, if any, on investigations might be.
Aside from the errors identified above, the majority erroneously views this proceeding as premature. This prematurity view leads the majority to ignore the long-established legal doctrines which govern our review of decisions interpreting consent decrees. Most seriously, the majority relies primarily on perceived public safety concerns which are unsupported by any evidence and which, in my view, may be wholly illusory. In my view, the district court correctly interpreted the Consent Decree which it had earlier approved and its decision should be affirmed.
*1021I.
The majority’s initial mistake is its view that the present proceeding is somehow “premature.” Instead, Paragraph 3.6 of the Consent Decree specifically addresses the possibility that the FBI would adopt guidelines inconsistent with the Decree. The FBI agreed that such inconsistent guidelines would not go into effect in Chicago. Thus there is no prematurity problem. If the FBI attempts to put into effect guidelines that are inconsistent with the Decree, the violation of the Decree, by its own terms, is fully mature. Although I have no information that the FBI is currently conducting investigations in violation of the Decree, the whole purpose of guidelines is to provide from the outset a framework within which security can be served while liberty is not snuffed out. Once politically repressive investigations actually begin, it may already be too late.
The majority’s mistaken view that redressing the present violation of the Decree is “premature” leads it into very serious error. The majority concludes that “the bareness of the setting requires us to resolve all reasonable doubts in favor of an interpretation of the guidelines that will avoid conflict with the decree.” At 1011. There is, of course, no authority whatever for the application of such a standard, which ends the argument before it is ever begun. Instead of the normal deference to a district court’s interpretation of its own decree, the majority has substituted a deference to guidelines which as a matter of plain language conflict with the Decree. With this unprecedented and incorrect approach, it is no wonder that the majority has reached an erroneous result. With these observations in mind, I shall now approach the problem of applying the principles which, until now, have been thought controlling in the interpretation of consent decrees.
II.
The majority recites, but fails to apply, the universally recognized principle that consent decrees are to be treated like contracts. Instead, without citation or rationale, the majority places the burden on the plaintiffs to show that their proffered interpretation of the Decree is “compelled.” At 1011. The majority carries this standard to its logical extreme and, without any evidence that the Decree is a threat to public safety, concludes that “[i]f the consent decree will bear an alternative interpretation it ought to be given one.” At 1020. Thus the majority admittedly creates a meaning for the Decree having no support in what the parties intended. Nor is there any indication that the parties would have settled the litigation if they had known that this court would impose these novel terms and conditions on their agreement.1
The rules of consent decree interpretation are simplicity itself. The Supreme Court has repeatedly held that a consent decree is a contract and as such must be interpreted to give effect to the intent of the parties as embodied in the terms of the agreement. See Firefighters Local Union No. 1784 v. Stotts, — U.S. —, 104 S.Ct. 2576, 2586, 81 L.Ed.2d 483 (1984) (“Memphis Firefighters ”); id., 104 S.Ct. at 2603 (Blackmun, J., dissenting); United States v. ITT Continental Baking Co., 420 U.S. 223, 233-37, 95 S.Ct. 926, 932-35, 43 L.Ed.2d 148 (1975); United States v. Armour & Co., 402 U.S. 673, 681-82, 91 S.Ct. 1752, 1757-58, 29 L.Ed.2d 256 (1971); United States v. Atlantic Refining Co., 360 U.S. 19, 20-24, 79 S.Ct. 944, 945-947, 3 L.Ed.2d 1054 (1959). See also Hughes v. United States, 342 U.S. 353, 357-58, 72 S.Ct. 306, 308, 96 L.Ed. 394 (1952). As this court very recently put it, “[i]t is clear that consent decrees are construed according to *1022precepts of contract construction.” United States v. City of Chicago, 717 F.2d 378, 382 (7th Cir.1983). See Freedman v. Air Line Stewards & Stewardesses Assoc., 730 F.2d 509, 515 (7th Cir.1984); White v. Roughton, 689 F.2d 118, 119-20 (7th Cir. 1982), cert. denied, 460 U.S. 1070, 103 S.Ct. 1524, 75 L.Ed.2d 947 (1983); Sportmart, Inc. v. Wolverine World Wide, Inc., 601 F.2d 313, 316-17 (7th Cir.1979).2
But a consent decree is a contract with a twist, because, as we recently recognized, a district judge has lived with the case and presided over the entry of the decree. Thus, “[t]he district court’s views on interpretation [of a consent decree] are entitled to deference.” United States v. City of Chicago, 717 F.2d at 382 (citing Brown v. Neeb, 644 F.2d 551, 558 n. 12 (6th Cir.1981)). In this case, the majority has, as we shall see, interpreted the Decree in a way contrary to the plain words used by the parties and has completely ignored the district court's understanding of these words. Instead of placing on the plaintiffs a burden to show that their interpretation is the only possible or conceivable meaning of the Decree, we should require the government to prove that the district judge did not understand the Decree she entered and that the parties meant to give their words some novel and unnatural meaning.3 Instead, we should take an impartial stance and construe the provisions of the Decree without regard to our own predispositions respecting the power of the police to conduct surveillance of political activity.4
Our task, then, is to determine what the parties meant when they agreed in f 3.4(a) of the Consent Decree that the FBI would not conduct domestic security investigations “solely on the basis of activities protected by the First Amendment.” Most strikingly, the majority simply declines to discuss the only generally accepted meaning of this key language: “The FBI shall not conduct an investigation solely on the basis of activities protected by the First Amendment ____” (Emphasis supplied). “[Protected by the First Amendment” means simply and plainly protected against adverse governmental action which frequently takes the form of prosecution and punishment. In the context of speech threatening future violence or illegal conduct, these words constitute a term of art referring to the principles developed in the leading Supreme Court cases on the subject, such as Dennis v. United States, 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137 (1951), and, more recently, Brandenburg v. Ohio, 395 U.S. 444, 447, 89 S.Ct. 1827, 1829, 23 *1023L.Ed.2d 430 (1969). This is the only body of existing law which I know of to give meaning in this context to the phrase, “protected by the First Amendment.”
The government has argued, and the majority has agreed, that this phrase does not have its obvious meaning but instead means “protected from investigation.” This conclusion is wrong because there is no preexisting law about what is “protected from investigation.” Judge Getzendanner specifically noted in approving the settlement that “the law with respect to government spying which these cases concern is largely unsettled.” 91 F.R.D. at 198.5 The majority therefore seems to be saying that the parties wrote, and the district court entered, an agreement with no fixed meaning. Instead, it was one of the purposes of the Consent Decree to supply this deficiency in settled law governing investigations, at least in Chicago.
In sum, the majority cites no evidence, and I know of none, to support the notion that at the time of the settlement the parties intended paragraph 3.4(a) to mean “protected from investigation.”6 Had the parties intended such a meaning, they could easily have conveyed it in plain language. It would have been simple to agree that “the FBI will obey the Constitution and laws of the United States when investigating speech.” Cf. Consent Decree 113.5(a) (FBI “electronic surveillance activities in the City of Chicago must comply with the Constitution and applicable federal statutes”).
I have noted that, unless one interprets “activities protected by the First Amendment” to mean activities protected from punishment under Dennis and Brandenburg, the term is without discernible meaning in existing constitutional law. The majority suggests that that meaning can be supplied by reading “the critical sentence in the decree as prohibiting improperly motivated investigations.” Slip op. at 1020. But to persons whose first amendment rights may be under siege from a massive “domestic security/terrorism investigation,” the motives of the investigators seem of slight importance. People with the best of motives can become over-zealous in their treatment of political dissent. In any event, the first sentence of 113.4(a) addresses motive and purpose, by requiring that the FBI be “concerned only with conduct and only such conduct as is forbidden by a criminal law ____” Since motive or purpose is covered by this first sentence, it is not clear why the second sentence should be read as somehow also providing a motive test.
Instead of following the usual course of contract interpretation, the majority has created a new analysis whereby agency guidelines are the subject of deference and whereby we should “decline to anticipate that the Justice Department will so interpret the new FBI guidelines as to violate the district court’s decree.” Further, the majority asserts that any interpretation which would constrain FBI discretion is to be eschewed as a threat to public safety. Based on these safety concerns, the majority concludes that “if the consent decree will bear an alternative interpretation it ought to be given one.” But the majority has failed to tie these safety concerns to any evidence of the parties’ intent at the time the Decree was signed. Thus, these concerns are legally irrelevant to the question before us.
III.
The majority’s extensive reliance on the potential safety-related problems it has *1024conjured up is a serious departure from the accepted judicial role in interpreting consent decrees. By considering at length “public safety” factors which are outside the Consent Decree and of which there is no evidence in the record, the majority has violated a cardinal principle of consent decree construction. The meaning of a decree must be determined from within its “four corners” and not from extraneous factors a party may have had in mind or from the “purpose” the decree might have had.7 See Memphis Firefighters, 104 S.Ct. at 2586; United States v. Armour & Co., 402 U.S. at 682, 91 S.Ct. at 1757; White v. Roughton, 689 F.2d at 119.
The majority’s error here is strikingly similar to that of the Court of Appeals in Memphis Firefighters, where the Supreme Court adhered to the “four corners” rule and rejected a construction of a consent decree that purported “to effectuate the purposes of the decree” but which was not supported by the words of the decree. Memphis Firefighters, 104 S.Ct. at 2585. If the government wanted to agree to follow the Constitution and if it thought that the constitutional limits on investigations are as the majority claims, the government should have insisted on words reasonably susceptible of conveying that intent and understanding. Cf. id. (“Had there been any intention to depart from the seniority plan in the event of layoffs or terminations, it is much more reasonable to believe that there would have been an express provision to that effect”). The Supreme Court and this court have repeatedly insisted that the unrecorded motives of the parties are not determinative. Rather, we have been instructed, and we have professed, to look only to the words of the decree to find the agreement. •
The majority invokes the spectre of terrorism to justify its decision to ignore the words of the Decree because it refuses to believe that “the government knowingly bartered away important public interests merely to avoid the expense of a trial.” But at the time the Decree was entered the parties had no idea what limits the law would otherwise place on the relevant FBI activity. Perhaps it will ultimately be held — without reference to the Decree— that the first amendment places significant limits, possibly coterminous with Brandenburg, on FBI surveillance of domestic political groups when such surveillance is based solely on protected speech. Perhaps such a possibility is what the Justice Department officials who signed the Decree had in mind.8 Further, there is no evidence before this court to suggest that the FBI’s efficiency would be hampered in any respect by adherence to the Brandenburg standard for initiating investigations.9
*1025The majority's unsupported conclusion that the first amendment forbids only improperly motivated investigations leads it into two more serious errors. The majority believes that, if the FBI agreed to the plaintiffs’ version of the Consent Decree, then “the Justice Department bargained away some of its essential investigative powers and got nothing in return but a saving of some litigation expenses.” But as Judge Getzendanner knew when she signed the Decree, the first amendment limits on investigations were unsettled at that time. For all the Justice Department knew, the ultimate relief that might have been ordered after a trial would have been more extensive than that provided in the Decree.10 The majority, once it fastens upon its “motivation” interpretation of the first amendment, takes the mistaken position that the FBI agreed only to this “motive” test and not to apply Brandenburg standards because, according to the majority, the district court would not have ordered relief going beyond the Constitution.11 The majority cites no authority for its erroneous belief that a contract going beyond the legal rights available in court is unenforceable. In fact, the Supreme Court has decided that such contracts are enforceable. See Aronson v. Quick Point Pencil Co., 440 U.S. 257, 99 S-Ct. 1096, 59 L.Ed.2d 296.(1979). In any event, the fact is that the parties had no way of knowing what relief might have been available after trial. Thus, the FBI could not have actually weighed the remedial possibilities in the sort of cost-benefit analysis the majority ascribes to it.12 See at 1016.
In general, I would take the more conservative approach and enforce the Decree according to its terms. I would not reach out without compelling reason to decide important constitutional questions, especially where those issues have not been adequately addressed either by the parties or by the district court. It is certainly inappropriate to consider potential problems the FBI might have in operating under the Decree unless and until we are presented with evidence in support of a request to modify the Decree. And, above 'all, I would not establish a new legal standard and then make the unrealistic assumption that the parties intended to apply that standard four years ago, in the face of plain words to the contrary.
IV. ■
In the course of its heavy reliance on the prospect of terror, the majority shuts its eyes to some of the safety-related features of the Decree. First, it is vital to note the use in the key phrase of the Decree of the word “solely.” This word limits the reach of 13.4(a) to situations where nothing is known about the possible subject of an investigation except its pure speech activities. There can be no travel in suspicious patterns, no consorting with suspicious persons, no purchasing of supplies suitable for *1026criminal purposes, no possession of anything capable of a suspicious interpretation. Certainly the FALN and the Posse Comitatus, cited by the majority, could gain no solace from the rule since protected speech is one of the less noteworthy of their activities. In fact, one reason I question that the Consent Decree as I interpret it would hobble the FBI is the unlikelihood that any situation meriting investigation would ever be characterized by pure speech and nothing more.
Second, paragraph 3.4(a) makes it abundantly clear — and this was fully recognized by the original panel opinion — that only “domestic security/terrorism investigations” are affected by the protected speech. limitation, not “preliminary inquiries.”13 See Theoharis, FBI Surveillance: Past and Present, 69 Cornell L.Rev. 883, 889-90 (1984). Even the purest, most protected speech of the Socialist Afternoon Tea Circle of Hyde Park could trigger a preliminary inquiry to determine whether there were any threat of a criminal violation.14 The majority is concerned that such an inquiry could presumably not be permanent or ongoing for several years. But if the inquiry failed to disclose anything other than the purest protected speech, it is difficult for me to see any legitimate purpose in continuing the'inquiry for years. The majority also states its disbelief that the plaintiffs would have agreed to allow “inquiries” based solely on protected speech. It is ironic that the majority is thus not willing to enforce the Decree as written because to do so would not give the plaintiffs enough relief.
*1027It seems to me that the parties to the Consent Decree limited the availability of “domestic seeurity/terrorist investigations” in situations where only protected speech was involved because this formidable sort of investigative procedure could become a heavy burden on the target — a form of penalty, and of repression, which the signatories of the Decree thought improper in the case of free speech alone. It becomes an academic point whether free speech is protected only from formal criminal penalties or from government investigative action which might be every bit as punitive and painful. Therefore, I think the distinction drawn by the Decree between a “domestic seeurity/terrorist investigation” and an “inquiry” makes eminently good sense both from the standpoint of public safety and the standpoint of freedom of speech.
The history of this case suggests concern both for public safety and for relief from political harassment as the twin goals which the Decree seeks to reconcile. There was an extensive history of deployment of police resources ostensibly for purposes of political intimidation, which the majority virtually concedes. Certainly, there must be a concomitant concern about terrorism, which if it is not becoming more frequent, appears to be becoming more pervasive.15
V.
I doubt that there is a conflict between the principles underlying the Decree and the safety-related concerns cited by the majority. We have seen that the “preliminary inquiry” authority contained in the Decree and in the guidelines is more than adequate to deal with menacing exercises of free speech with nothing more. Perhaps more fundamentally, I am chagrined by the lopsided policy analysis which the majority engages in. Of course, I could not agree more that the FBI should not be hobbled, or put at any disadvantage, in the fight against terrorism. But the first amendment rights of political eccentrics need not be snuffed out in the process. The majority unfortunately seems reluctant to give adequate weight to the importance of preserving constitutionally protected free speech rights as a goal of government.
As a matter of fact, as far as I am aware, the FALN, the Posse Comitatus, the New World Liberation' Front and the Weather Underground (cited by the majority) are not organizations that got their start merely from exercises in protected speech. It is simply erroneous and unhistorical to suggest that organizations having deviant political objectives inevitably progress along a continuum starting with protected speech and ending with murder. For example, even orthodox Marxists do not practice terrorism as a necessary facet of their ideology.
The majority thus denies substantial weight to the policies of the first amendment, which the Consent Decree seeks to further. The majority asserts that it does “not depreciate the abuses of police power that led to the decree” — like the effort to destroy Martin Luther King, Jr. or 500 “black bag jobs” in Chicago targeted against lawful political activity. See slip op. at 1015, 1019. Yet in fact the majority is apparently so unconcerned about these abuses and their possible recurrence that it gives the benefit of every doubt to Department of Justice guidelines which emasculate the Decree.16 The entire history of this case is a story of investigative excesses used as a powerful weapon against political dissent. Anyone who has lived in the twentieth century surely does not have to be instructed on the threat which unre*1028strained investigative activities can pose to political liberty. I share the majority’s high regard for Judge Webster — currently Director of the FBI — but I think the Consent Decree was crafted to establish long-term limits and as a means of counteracting in the long run the institutional pressures toward abuse. These pressures will be present no matter how well-intentioned the leadership or how well-trained the rank and file of the FBI may be at any point in time.
Finally, I am not so naive as to believe that investigative excesses will ever be subject to “summary and severe sanctions, criminal as well as civil,” as suggested by the majority. It is at least doubtful that an FBI agent can be subjected to liability for constitutional violations in the Seventh Circuit. See Egger v. Phillips, 710 F.2d 292, 324-25 (7th Cir.) (en banc) (Posner, J. concurring), cert. denied, — U.S. —, 104 S.Ct. 284, 78 L.Ed.2d 262 (1983); id. 710 F.2d at 325-28 (Coffey, J. concurring). If the needs of effective FBI activity are as compelling as four of my brethren thought in Egger, I do not see why contempt penalties will be any more fully available or forthcoming than damage liability under the Constitution. Cf. Beard v. O’Neal, 728 F.2d 894, 900 (7th Cir.1984) (refusing to consider whether FBI agent was “personally responsible” for death allegedly caused by agent’s failure to supervise informant). Certainly, no district judge in this circuit who has read today's majority opinion will move forcefully against alleged investigative excesses by the FBI. The majority’s new rule that, in matters which may implicate something called “security,” all conceivable doubts must be resolved in favor of the government makes sanctions against the government or its agents seem fanciful.
Therefore, the solace which the majority offers the plaintiffs that the Decree is still in place and may be invoked to prevent abuses is illusory. The fact is that in its first test, the plain meaning of the Decree has been rejected and presumptions have been invoked which make it next to impossible that the government could ever lose a future contest. Further, the majority has adopted a “motive” test for first amendment limitations on investigations apparently without much thought or concern for the consequences. For all practical purposes, the Decree has been gutted and I would advise plaintiffs’ lawyers to put their time to better use than “monitoring compliance.”
For these reasons, I respectfully dissent.
. The majority concedes that “the words of paragraph 3.4(a) will bear the plaintiffs’ interpretation of them.” The majority then says "but the question whether the interpretation is compelled is less clear.” (Emphasis added). But whether any interpretation is “compelled" is simply not relevant. The majority must be aware that since the language of the Decree will "bear” the plaintiffs’ interpretation, the government’s version is also not "compelled.” Rather, the majority should simply seek the intent of the parties as embodied in the Decree.
. The majority may be attempting to avoid (or even overrule) the Seventh Circuit law on consent decrees when it cites a Second Circuit case for the proposition that a consent decree with a public institution "is no mere contract.” New York State Ass’n for Retarded Children, Inc. v. Carey, 596 F.2d 27, 37 (2d Cir.), cert. denied, 444 U.S. 836, 100 S.Ct. 70, 62 L.Ed.2d 46 (1979). See at 1013. However, the majority cannot avoid the Supreme Court cases which say that consent decrees are to be construed as contracts.
. The majority's disposition creates a new canon of consent decree interpretation, under which all doubts are to be resolved in favor of sustaining governmental power. See at 1014-1015. Such a rule of construction would be plainly contrary to the Supreme Court’s cases, and to our cases noted above, many of which involve government consent decrees.
. The majority's repeated references to a "decree that restricts the executive branch of government in the performance of its constitutional responsibilities” are seriously misleading. Whenever the executive enters into a contract, within or without the context of litigation, it agrees to a limitation on the employment of its powers. Under the majority's standard all parties to contracts with the government should be on notice that all such contracts will be strictly construed against limitations on governmental power, regardless of the plain meaning of the words used in the contract. Further, the majority's characterization is misleading because the majority also concludes that the Decree goes no farther than the Constitution. A decree going no farther than the Constitution does not restrict the executive branch at all. As a matter of elementary constitutional law, the executive branch obviously does not have the power, and is forbidden, to exceed the limits of the Constitution. As Justice Black put it, the United States government “is entirely a creature of the Constitution. Its power and authority have no other source. It can only act in accordance with the limitations imposed by the Constitution.” Reid v. Covert, 354 U.S. 1, 5-6, 77 S.Ct. 1222, 1224-1225, 1 L.Ed.2d 1148 (1956), quoted in In re Burt, 737 F.2d 1477 at 1484 (7th Cir.1984).
. In fact, the uncertainty of the law was cited as a factor in support of settling the case; the uncertainty of the law meant that the outcome was uncertain and settlement might be a prudent course.
. In this regard, perhaps conclusive evidence that the government knew it was agreeing to Brandenburg is the fact that it joined with the plaintiffs in citing Brandenburg (together with other first amendment punishment cases) to rebut an objection that the settlement allowed investigations solely on the basis of speech. See Appendix to Alliance Brief at 10. I have found nothing in the record to support the majority's view that the sentence of 1f 3.4(a) which is at issue speaks somehow to the motivation underlying the investigation.
. The origins of the "four corners” rule lie in Hughes v. United States, 342 U.S. 353, 72 S.Ct. 306, 96 L.Ed. 394 (1952) and United States v. Atlantic Refining Co., 360 U.S. 19, 79 S.Ct. 944, 3 L.Ed.2d 1054 (1959). In Atlantic Refining, the Supreme Court adopted a strong preference for giving the words of a consent decree their "normal meaning" and for honoring the district court’s interpretation of what the parties intended. The Supreme Court further noted that the government’s construction in Atlantic Refining was strained and contrary to that applied during previous operation under the decree. 360 U.S. at 22-24, 79 S.Ct. at 946-947.
. The majority, I think correctly, does not rely on the letters purporting to state the Justice Department's interpretation of the Decree, sent to Judge Getzendanner by Justice Department officials after the signing of the Decree. The Decree was signed on October 29, 1980. The letters were sent in March and April of 1981. The dates of the various documents indicate that intervening events may have played a role in the formulation of the Justice Department's position as expressed in the letters. In any event, letters written subsequent to the signing of the Decree cannot vary the terms of the Decree.
. The majority, I think unwisely, has, without the benefit of any briefing and without the benefit of district court consideration, decided that the first amendment has no application to properly motivated investigations. I am less certain than the majority that the first amendment does not limit such investigations. The Supreme Court has found that there is significant protection under the first amendment for political organizations against state regulation. For example, in NAACP v. Alabama, 357 U.S. 449, 460-67, 78 S.Ct. 1163, 1170-74, 2 L.Ed.2d 1488 (1958), the Court held that NAACP members have a first amendment right, as applied to Alabama through the fourteenth amendment, to keep their membership in the organization a *1025secret. Presumably, under the majority's view of this case, Alabama could conduct a full investigation of the NAACP, including covert discovery of its membership lists, as long as Alabama was motivated by a desire to defeat lawlessness. This seems to me dubious.
. The majority’s conclusion that the parties agreed to the majority’s version of first amendment protections is unpersuasive because that interpretation of the first amendment was not suggested by anyone at the time the Decree was signed.
. The majority ignores Judge Getzendanner’s finding in her order approving the settlement that "both the objectors and the plaintiff proponents of the proposed FBI settlement have represented to the Court that the FBI and the Justice Department, in pending litigation elsewhere, currently assert that the Constitution does not prohibit them from engaging in practices which would be prohibited in Chicago by the principles of the settlement here.” 91 F.R.D. at 198. The defendants do not deny that they have made such assertions in other litigation. Thus the defendants apparently believed that the settlement granted relief more extensive than the Constitution.
. Even if the Decree could not go beyond the Constitution, the FBI may have settled the litigation to avoid an imposed injunction that would have been more specific than the general principles contained in the Decree. It is, of course, much more unlikely that a district court would ever make findings of contempt if the limitations were general rather than specific.
. The first sentence of j[ 3.4(a) provides that, “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.” (Emphasis added). This sentence applies to both "inquiries” and “investigations” and basically regulates FBI investigations with respect to motive and purpose. The second sentence of f 3.4(a) forbids the FBI from "conduct[ing] an investigation solely on the basis of activities protected by the First Amendment[.]” (Emphasis added). This distinction between inquiries and investigations thus appears on the face of the Consent Decree and the majority's refusal to honor it seems quite arbitrary.
The majority apparently believes that the plaintiffs fabricated the distinction between full investigations and preliminary inquiries and that the use of the word "inquiries” in (f 3.4(a) was "inadvertent.” Nothing in the record supports the majority’s "inadvertence” conclusion. Further, the Levi Guidelines distinguished between full and preliminary investigations. And the new guidelines explicitly provide for “preliminary inquiries.” Joint Appendix at 78. Director Webster also testified before a Senate committee investigating the new guidelines that "A preliminary inquiry can be conducted ... to make an informed judgment as to whether a full investigation is warranted.” Joint Appendix at 121. In light of the facts, I fail to see how the majority can justify its refusal to acknowledge the distinction between investigations and preliminary inquiries.
. Whether such an inquiry would violate the first amendment is an issue not now before us. I note, however, that at the time of the settlement the parties agreed that the Levi Guidelines on FBI investigations did not permit investigations of groups that advocate violent revolution unless the groups "engage in serious crimes or violence or advocate serious crime or violence.” Consent Decree jf 2.2. This is strong evidence that the FBI did not, at the time, believe that motive was the sole determinant of the legality of an investigation.
The majority’s conclusion that j[ 2.2 is not part of the Decree is quite remarkable. It is, after all, an integral part of the Decree. That paragraph was written to bolster the argument in favor of settlement. For example, all of the facts recited in f2.2 were being used by the defendants to establish a mootness defense. The plaintiffs were acknowledging, by agreeing to those understandings, that the factual bases for the defendants' mootness defense were accurate. Judge Getzendanner noted when she approved the settlement that a defense victory on mootness grounds was a very real possibility. 91 F.R.D. at 198. Also, the plaintiffs and defendants wanted to show that the defendants were acting in good faith because members of the plaintiff class might otherwise have been reluctant to enter into an agreement with the FBI after the serious abuses allegedly engaged in. Further, jf 3.1 of the Decree specifically provided that the settlement was entered into "based on the post-filing statutes, guidelines and other procedures referred to in j[ 2.1 and on the understanding of them reflected in j[ 2.2[J" The defendants thus endorsed the accuracy of that understanding. Further, if the defendants entered into the agreement knowing the plaintiffs’ understandings to be false, they would presumably be parties to a fraud.
. In any event, the various strands of concern were brought together in the Consent Decree approved by Judge Getzendanner.
. One commentator has noted that the “permissive standards of the Smith guidelines” highlight the need for a restrictive FBI charter. Theoharis, FBI Surveillance: Past and Present, 69 Cornell L.Rev. 883, 893-94 (1984). Apparently, the new guidelines have caused some consternation among members of Congress who are concerned that the new guidelines may constitute a "retreat” from the principles of the Levi Guidelines. See id., notes 62 & 63 and accompanying text.