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Fighting Terrorism Takes Gavels as Well as Guns

By Mike German

Published in The Washington Post
Sunday, November 7, 2004; Page B04

The FBI director was determined to prevent another attack on New York City. "Merely solving this type of crime is not enough," he said. "It is equally important that the FBI thwart terrorism before such acts can be perpetrated." He created a new counterterrorism division at FBI headquarters, arranged to share more information with the CIA and expand the FBI presence abroad to promote international cooperation.

That was in 1993, after the first World Trade Center bombing. A decade later, the FBI is discussing the same solutions -- and is no better equipped to combat terrorism.

About six weeks ago, Vice President Cheney added to the confusion by warning that if Americans voted the wrong way on Election Day we would fall back into a "pre-9/11 mind-set" in which we believed that "terrorist acts are just criminal acts and that we're not really at war." Cheney's statement reinforced the perception that criminal law enforcement is a quaint and ineffective tool against terrorism.

Nothing could be further from the truth. It flies in the face of everything I saw during a 16-year career in the FBI, including undercover operations in two terrorism investigations during the 1990s. The problem was not that the FBI relied too heavily on its criminal investigators, but that it didn't rely on them enough. It's not a matter of trading our guns for gavels; we need both.

The idea that criminal law enforcement is an ineffective counterterrorism tool took on life after 9/11. The Bush administration blamed the failure to prevent the attacks on an improper reliance on criminal law enforcement. Top FBI officials went along with this misleading assertion to divert attention from a tougher issue: how dysfunctional FBI management prevented field agents who had uncovered pieces of the plot from pursuing investigations that may have defused it. Later the idea found its way into the 9/11 commission report, which said, "The concern about the FBI is that it has long favored its criminal justice mission over its national security mission."

Blaming the FBI's failures on its criminal investigators was unfortunate not only because it disparaged the efforts of many criminal division agents who had successfully prosecuted terrorists. It reduced the issue of fighting terrorism to campaign slogans. If he really wants to make Americans safer during his second term, President Bush needs to help the FBI heal itself.

Historically, the FBI has been divided into two houses with different missions and different techniques. The criminal investigations portion uses grand jury subpoenas, search warrants and court-ordered wiretaps to gather evidence for public trials. Counterintelligence operations, by comparison, are shrouded in secrecy. They are conducted in conjunction with other agencies, such as the CIA and Pentagon.

Before Sept. 11, 2001, international terrorism investigations were handled primarily by the FBI's counterintelligence side, not its criminal investigative side. All of the botched investigations the 9/11 commission identified as failed opportunities to prevent the attacks were being worked as intelligence investigations.

This is why the mythical wall between intelligence investigations and criminal investigations became a real obstacle. Information collected in intelligence investigations wasn't being passed to criminal investigators, not because of an actual legal impediment but because FBI officials misinterpreted the law and misjudged the facts. So the enforcement half of the FBI never saw the information. But rather than correct this, the FBI is increasing its reliance on counterintelligence techniques in terrorism cases.

These techniques were originally developed to monitor foreign spies rather than to gather evidence, and they simply are not well suited to fighting terrorism. The sources and methods used are often highly classified, which limits the dissemination of information to the FBI's state and local law enforcement partners and hinders their ability to use the evidence in criminal trials. This might be fine for combating foreign agents, because diplomatic immunity usually prohibits criminal prosecution anyway; simply identifying the spies and expelling them from the country is enough to ensure our national security. But simply booting terrorists out of the country won't guarantee our safety.

The recent release of Saudi American enemy combatant Yaser E. Hamdi shows how a counterterrorism strategy that abandons criminal law enforcement fails to protect our society from terrorists.

Hamdi, who has been allowed to return to Saudi Arabia, spent three years in a Navy brig without access to a lawyer for fear that he might threaten national security by passing his attorney messages for fellow terrorists. Either the government is telling the truth now and Hamdi is not a threat to the United States, which means his detention was unnecessary and unjustified, or the government was telling the truth earlier and a potentially dangerous terrorist has now been released because the government failed to follow legal procedures that could have led to a successful prosecution.

Most likely neither version is entirely correct; Hamdi was not in Afghanistan by accident, but neither was he so dangerous that constitutional criminal procedures could not have contained him. This is only the first of many detainee releases, and we will likely be releasing some very angry young men. There are already reports of detainees released from Guantanamo in Cuba, and then rejoining al Qaeda or Taliban military units still fighting U.S. troops in Afghanistan.

There's no reason to think that criminal law enforcement techniques would be ineffective against terrorists. Like terrorists, criminals know that the government might be listening in on their phone calls, eavesdropping on their meetings, searching their homes or reading their mail. They worry about informants and undercover agents. The problems of protecting sources and methods in organized crime cases aren't that different from terrorism cases; sources and methods are constantly burned in criminal cases, yet investigations continue to be effective.

Is this because criminals are dumber than terrorists? No, it is because criminals will continue to be criminals just as terrorists will continue to be terrorists. Both groups have to associate, communicate and coordinate with co-conspirators to be effective, which makes them vulnerable to penetration by law enforcement.

Instead, the FBI and other agencies over-classified their information about terrorists so that it could not even be shared with FBI criminal investigators. Thus, when a protected source or method provided information that an al Qaeda operative suspected in the bombing of a U.S. warship had come to the United States on July 4, 2001, an FBI manager decided that the information could not be passed to criminal investigators, who could have pursued an arrest.

There would be other advantages to treating terrorism as a criminal matter rather than purely a national security issue. The 9/11 commission found that getting approvals under the Foreign Intelligence Surveillance Act (FISA) "continues to be long and slow" and that the increase in requests is "overwhelming the ability of the system to process them." Yet there are 94 federal judicial districts where the FBI can obtain authorization for wiretaps and warrants, but only one FISA court. Whatever standard the secret FISA court needs is probably enough to show probable cause of criminal activity before a regular judge.

The abandonment of criminal law enforcement also plays into the terrorists' hands from a propaganda standpoint. Terrorists want to make us afraid, but they also take pains to describe their violent deeds as acts of war rather than criminality.

In his Mini-Manual of the Urban Guerrilla, Brazilian revolutionary Carlos Marighella said that "The urban guerrilla . . . differs radically from the outlaw. The outlaw benefits personally from the action, and attacks indiscriminately without distinguishing between the exploiters and exploited."

But it's tough to look like legitimate representatives of the people if you're wearing prison stripes, particularly after being convicted in a fair and open trial. In 1981, 10 jailed Irish republicans went on a hunger strike and died in a bid to be treated as prisoners of war rather than as common criminals.

My guess is that Islamic terrorists, who refer to themselves as "holy warriors," also dislike being called criminals. Our failure to treat them like the criminals they are is a lost opportunity to portray terrorism as an illegitimate means to political ends.

Terrorist acts are also designed to provoke reactions from victim governments that will lend legitimacy to the terrorist cause. As Osama bin Laden said in an interview taped shortly after 9/11: "I tell you, freedom and human rights in America are doomed. The U.S. government will lead the American people -- and the West, in general -- into an unbearable hell and a choking life." Bin Laden, like other terrorists, hopes that our government will abandon its legal principles to defend itself. Then he can argue that we are the real criminals.

The shame is that it didn't have to happen this way. Military action and covert operations will always be parts of the global counterterrorism strategy. But while belligerent language might make us feel better, it can be counterproductive. If the terrorists hate being called criminals, maybe treating them like criminals is the most effective strategy.

While preventing terrorist acts will always take precedence over prosecuting terrorists, the best way to prevent terrorism remains ensuring that terrorists are safely behind bars rather than out on the street.

Mike German is a former FBI agent and taught counterterrorism at the FBI National Academy. He resigned in June after protesting the handling of a terrorism case.