AN FBI INSIDER’S GUIDE
TO THE 9/11 COMMISSION REPORT
By Mike German
The 9/11 Commission’s Final Report gives a rare inside look at how our military, intelligence, and law enforcement agencies operated before, during, and after the most catastrophic terrorist attack in history. The Commission’s blunt conclusion is that had these agencies responded properly, the 9/11 plot could have been averted; all the FBI had to do was listen to its agents in the field and the dots would have connected.
Overall, the 9/11 Commission report is outstanding. It is a well-researched, meticulously documented history of our nation’s counterterrorism programs and the events surrounding the 9/11 terrorist attacks. That the Commission could accomplish such a feat despite the initial reluctance of the administration and the intelligence community to cooperate with their inquiry is testimony to the tenacity of the individual Commissioners, their staffs, and most importantly, the 9/11 families, whose refusal to remain silent in their grief made the Commission a reality in the first place. Our nation owes them a great debt, and nothing in this commentary should in any way be construed as a criticism of their efforts. Far from it. From an insider’s perspective, I am amazed they were able to accomplish as much as they did.
The report concludes with the call for a public debate on the merits of the Commission’s recommendations. Every American should read the report and participate in the debate, for the reforms being made now will have great effect on the security of the nation and the future of American liberty. But it can be difficult to understand an unfamiliar culture without a guide that can interpret the language and explain the history.
I am in a unique position to provide that service. In a 16 year FBI career I operated undercover in two terrorism investigations in the 1990s that prevented terrorist acts through multiple arrests and convictions. I regularly consulted on FBI cases, provided counterterrorism training to federal, state and local law enforcement, and I participated in two post-9/11 terrorism investigations that failed due to the same kind of bureaucratic bungling the 9/11 Commission documents in its report.
Getting an FBI insider’s perspective on the 9/11 Commission report is particularly important because while the Commission calls for sweeping changes in other parts of the intelligence community, it curiously recommends leaving the FBI intact, with sole responsibility for domestic counterterrorism intelligence collection and criminal law enforcement. This despite identifying major failings by the FBI in the years, months, and days leading up to 9/11. They were clearly ambivalent about this decision. In the section dealing with the future role of the FBI, the Commission lists several reasons for leaving these important responsibilities with the FBI, but then adds a few ominous caveats:
“Our recommendation to leave counterterrorism intelligence collection in the
Report, page 424
“We have found in the past the Bureau has announced its willingness to reform and restructure itself to address transnational security threats, but has fallen short – failing to effect the necessary institutional and cultural changes organization-wide.”
Report, page 425
“Despite having found acceptance of the Director’s clear message that counterterrorism is now the FBI’s top priority, two years after 9/11 we also found gaps between some of the announced reforms and the reality in the field.”
Report, page 425
This ambivalence demonstrates the need for a guide with knowledge of the FBI’s culture and history, and hands-on experience with the realities in the field. As you will see, there is good reason for their skepticism.
Part of the reason the 9/11 Commission decided not to impose a radical reconstruction of the FBI is that right after the worst terrorist attack on
No, wait… I’m sorry; I was reading the wrong section of the report.
These reforms are discussed in Chapter 3, “Counterterrorism Evolves”, which describes the FBI’s 1993 response to the first World Trade Center bombing. And this wasn’t the only time the FBI “reformed” to combat terrorism. After the simultaneous bombings of U.S. Embassies in
In 2000, after successfully averting attacks during the Millennium Terrorist Alert, the FBI once again tried to reform itself. Dale Watson, head of the “new” FBI Counterterrorism Division, developed MAXCAP 05, a plan designed to bring “the Bureau to its ‘maximum feasible capacity’ in counterterrorism by 2005.” In his memoir, Against All Enemies, former White House Counterterrorism advisor Richard Clarke recounts meeting with Watson for a Millennium Terrorist Alert After Action Review to analyze the lessons learned. According to Clarke, Watson recognized deficiencies in the
FBI’s counterterrorism program, and offered a stark assessment: “We have to smash the FBI into bits and rebuild it to do terrorism.” And this was one year before the 9/11 attacks.
Now why would Dale Watson reach such a severe conclusion about what needs to be done to reform the FBI when the Commission did not? Because Watson knows the FBI better than the 9/11 Commission does.
NO ONE SO BLIND
In fairness, the 9/11 Commission did face a number of obstacles hindering its ability to properly assess the FBI’s reform efforts, even after belatedly receiving full cooperation and access.
The first obstacle was the FBI’s institutional reluctance to air its dirty laundry. “Don’t embarrass the Bureau” is the first commandment a new agent is taught upon arrival at the FBI Academy. When I came on board as a new agent, I thought this meant I shouldn’t engage in improper investigations, or otherwise behave in a manner that would tarnish the reputation of the FBI. But it actually means much more. It means that if another agent is doing something wrong, you should keep your mouth shut. More importantly, it means criticism of FBI management is strictly forbidden.
There are some reasons for this custom. Enforcing the law in a democracy is a tough job, and FBI agents know that the support and cooperation of the American public is essential to their success. The FBI’s reputation is critical to this support, and any negative attention makes the job harder for everyone. And while the vast majority of FBI employees are honest, dedicated, and capable, the few who dishonor their oath receive a disproportionate amount of public attention, just as the Bureau’s many successes are often overshadowed by its mistakes.
Unfortunately this breeds a sort of bunker mentality in which agents start to believe that any criticism of the FBI is unfair. In my experience, the higher one goes up into management (and the further away from actual investigations) the more this mentality is manifested. A willingness to deny the existence of problems, no matter how obvious they are to others, soon becomes a willingness to cover up problems rather than address them.
The prohibition against complaining about management is enforced through open and organized retaliation against whistleblowers combined with corrupt internal review procedures. Although current FBI Director Robert Mueller repeatedly vowed to protect whistleblowers, two Department of Justice Inspector General investigations during his short tenure found retaliation in FBI whistleblower cases, and a third investigation is pending. To determine if Director Mueller is serious about his vow to protect whistleblowers one need only ask him one question: Who in the FBI is responsible for ensuring whistleblowers are not being retaliated against? By “who” I mean what is the person’s name? What office does he hold? Where does he fit in the chain of command? Who does he answer to if a whistleblower feels he is not being adequately protected? The Director will not be able to answer this question because no one in the FBI is assigned this responsibility. No one is assigned this responsibility because the Director is not serious about protecting whistleblowers. I know because I endured two years of retaliation following a complaint about a terrorism investigation the FBI now openly admits was flawed.
The FBI is unable to police itself because it maintains illegitimate, discredited internal investigation and disciplinary procedures, which make it impossible to identify and correct problems inside the agency. This is a critical deficiency that allows all other deficiencies to exist. Pick up the Department of Justice Inspector General reports from any of its investigations of the FBI, whether regarding thefts of World Trade Center artifacts, the Robert Hansen spy scandal, the belated production of documents in the Timothy McVeigh case, or the audit of the FBI Counterterrorism Program, and you will see a picture of dysfunction that keeps the FBI blind to its own problems and cripples its attempts at self reform.
The FBI conducts internal investigations through two separate systems: the Inspection Division and the Office of Professional Responsibility (OPR). The FBI’s Inspection Division conducts internal top-to-bottom reviews, known as “inspections”, of each FBI office and Headquarters unit every three years, on a rotating basis. In what is generally regarded as the worst assignment in the Bureau, Inspectors travel to each of the different FBI offices for two weeks worth of 15-hour days examining all of the files to ensure administrative compliance with FBI policies, guidelines, and procedures. It is no more pleasant an experience for those being inspected, which involves six months worth of reviewing files to justify your existence, followed by two weeks of scrambling to answer inquiries from the harried inspectors. It’s like a two-week visit from the dentist.
Historically the inspection process has been less a legitimate effort to find and address problems than a mechanism for settling political scores. Inspectors were known to come into a field office with an agenda targeting specific managers or agents with what were known euphemistically as “contracts”. Because of the sheer volume of FBI rules and regulations, as well as the irregular rate at which new regulations are promulgated and old ones amended, it is generally accepted that, as the saying goes, “no one is administratively pure.” This means that if they come looking for you they will find something. Of course the truth behind this adage also makes it very difficult to prove the process is illegitimate, because if they find non-compliance, they find non-compliance, so there isn’t much to argue about. But just because you can’t prove a process is illegitimate doesn’t mean it’s legitimate.
Conversely, the Inspectors have enough discretion to protect agents and supervisors who enjoy a favored position in the internal political structure. If an agent lodges a complaint against a manager who’s not on the hit list, that information (including the identity of the complainant) is quickly relayed to that manager. There is typically little effort to resolve the issue, and when the two week inspection period is up the Inspectors return to Headquarters, leaving the agent to his fate.
There is also a general understanding among the agents that if a problem is raised during an inspection, the Inspectors will respond “with hand grenades rather than a sniper rifle.” In other words the response will be a wide-ranging inquiry in which anyone, including those that dared raise the issue, might get hurt. The typical result of this type of inquiry is that “everyone gets a shrapnel wound.” This perception creates a chilling effect making agents and supervisors alike unwilling to raise issues during an inspection.
Former Director Louis Freeh, who was an FBI agent before becoming a prosecutor and a judge, tried to reform the inspection process when he came on board by making it “agent friendly”. Freeh’s approach recognized that FBI management needed to address agent performance issues on a daily basis, rather than once every three years, and that the inspection process should instead focus on evaluating FBI management practices. Freeh went on a campaign to convince agents that under his command the inspection process would focus on management issues, and not on agent performance. He encouraged agents to be candid with the Inspectors about management problems, and promised to protect agents from retaliation. The “agent friendly” inspections lasted just one inspection cycle before reverting back to old practices. I guess he didn’t want to hear what the agents had to say after all.
Now you might ask yourself why the Inspectors would cooperate with such an illegitimate program. This is the beauty of the system. As I said earlier, being an Inspector is an awful, thankless job with long hours, dull work, exacting deadlines, and long periods of time away from the family. The only way they can get anybody to do it is by making it a requirement for managerial advancement. At each level of management a supervisor has to complete a certain number of inspections before advancing to the next level. This ensures that all the Inspectors are primarily driven by career advancement. Since the Bureau has no objective criteria for selecting or promoting managers, career advancement is dependent solely on personal relationships, or what is sometimes known as “the good ol’ boy network.” The only way to ensure career advancement is to cultivate political alliances and to always do exactly what your boss wants you to do. When the boss says “Find something on this guy,” you know you better find something on that guy or you’ll be the next one they’re taking a hard look at.
Part of this is simple common sense. Under the current system inspectors are evaluating managers they know might later have a say in their future promotional opportunities, or might even be their next boss. Unless the FBI develops either an independent inspection career path or a truly objective promotional system, the inspection process will continue to be influenced by internal politics.
The FBI’s other internal investigative body, the Office of Professional Responsibility, which focuses on employee misconduct as opposed to administrative compliance, is equally troubled. The Department of Justice Inspector General twice investigated OPR after allegations that a double standard of discipline treated managers more leniently than agents. In both reports the IG says no proof of the double standard could be found, yet in the first report the IG refers to the persistence of the “strong and not unreasonable” perception that there is a double standard, and in the second report the IG found examples of disparate treatment that “reinforce” this perception. This is yet another example of the bureaucratic double-speak that hampers reform efforts. If the double standard of discipline could not be proven, how could the perception of a double standard be reasonable? After the double standard complaints were made public, Director Mueller commissioned a blue-ribbon panel chaired by Griffin Bell and Lee Colwell to examine the OPR process. They concluded that OPR no longer effectively serves the FBI and is a “…perceived source of unfairness and favoritism that adversely affects morale…” No matter, though, because after receiving the Griffin Bell report the Director resolved the issue by transferring responsibility for conducting employee misconduct investigations to the Inspection Division. That’ll end the perception of a double standard of discipline.
DROPPING THE BALL
But the 9/11 Commission was able to ferret out some problems despite the FBI’s reluctance to air dirty laundry. This is partly because the investigative records, like all FBI records, were well documented, and partly because an FBI whistleblower bravely came forward.
Chapter 8, “The System was Blinking Red,” details three failed investigative opportunities which may have averted the 9/11 plot. The first, a failure shared by both the CIA and the FBI, involved the travel to the
There are three elements of the discussion that are especially enlightening:
First, during the Mihdhar investigation, FBI supervisors in the National Security Law Unit used improperly interpreted legal guidelines, known as “the wall,” to prevent an experienced FBI criminal investigator from pursuing a known al Qaeda operative who had come to the
Second, FBI Headquarters did not act on a Phoenix agent’s July 2001 memo requesting an investigation into the large number of international terrorism suspects taking flight lessons. The agent suggested this activity might be a “coordinated effort by Usama Bin Laden.” Despite being specifically addressed to the Usama Bin Laden Unit and the Radical Fundamentalist Unit, the Commission found that “No managers at headquarters saw the memo before September 11…” Headquarters supervisors simply ignored the good ideas sent to them by an enterprising agent trying to put the intelligence he collected to use. What the Commission report doesn’t say is that this wasn’t the first time the FBI had been warned about Islamic fundamentalists attending
Third, during the Moussaoui investigation, despite intense disagreement between agents and supervisors in Minneapolis who wanted to expand the investigation “to keep someone from taking a plane and crashing it into the World Trade Center,” and supervisors at Headquarters who “did not know if Moussaoui was a terrorist”, neither the Acting Director nor the Assistant Director for Counterterrorism was briefed on the matter. The Assistant Director heading the International Terrorism Operations Sections recalled “being told about Moussaoui in two passing hallway conversations but only in the context that he might be receiving calls from Minneapolis complaining about how headquarters was handling the matter” (my italics). In other words these obstructionist Headquarters supervisors did not go to their boss to brief him on an important terrorism investigation. They did not present both sides of the disagreement and ask their boss to evaluate their position. They did not ask their boss if he could think of another way that they could move the investigation forward. No, these supervisors, who were standing in the way of a critical terrorism investigation, went to their boss simply to cover their asses in case the Minneapolis agents went around the chain of command. Protecting their careers was more important than finding a way to move the terrorism case forward.
These three examples illuminate the dysfunctional management practices at work in the FBI Counterterrorism program. In each case agents on the street were doing everything they could to protect this nation from terrorism and, had they been allowed to follow their investigative instincts, they might have disrupted a catastrophe. Instead, managers failed to understand the FBI’s counterterrorism mission, failed to realize the urgency of that mission, failed to support their agents in the field, and failed to accept responsibility for these investigations and recognize their obligation to move them forward. These management failures made the catastrophe inevitable.
The 9/11 Commission criticized the government for a lack of imagination and a failure to understand the gravity of the threat from terrorism. To the contrary, these cases demonstrate that the FBI agents on the street working terrorism were not only imaginative, they were prophetic. In analyzing what went wrong, one needs to look no further than the management failures that prevented these agents from doing their job.
The second obstacle preventing the 9/11 Commission from getting a true picture of the FBI’s reform efforts was the diversion of the discussion away from the mismanagement of the FBI. During the Commission hearings, as the public started learning the extent of what the government knew about the plot prior to 9/11, the various agencies within the intelligence community adopted a common strategy to deflect criticism. Instead of accepting the blame for failing to act on the intelligence they had, they blamed the intelligence itself, arguing the intelligence wasn’t “actionable”. The failure did not require reform of flawed management practices; rather it required additional resources so more “actionable” intelligence could be collected.
Of course this is nonsense. All intelligence is actionable. If the weatherman says there is a 50% chance of rain tomorrow, you essentially know little more than before you tuned in. It might rain, but then again it’s just as likely it won’t. But that doesn’t mean you can’t take action to respond to this intelligence. You might decide to bring an umbrella with you when you go out tomorrow, or you might make plans to hold your event indoors. You might decide to simply gather more intelligence by monitoring the weather reports more closely as the hour of your event draws near. In either case it is the action you take that determines whether you get wet, not the failure of the weatherman to be more precise.
Clearly the agents involved in the cases discussed in Chapter 8 believed the intelligence they saw demanded action. There never was a problem with the FBI’s ability to collect and analyze intelligence. The problem was that Headquarters bureaucrats lacked an understanding that their responsibility was to drive the FBI’s counterterrorism mission forward and instead felt that preventing these agents from acting on intelligence was somehow a proper exercise of their authority. This problem continues to this day, partly because none of these managers were held accountable, and partly because none of the FBI’s flawed management practices have changed. The problem is a lack of leadership and a lack of action, but not a lack of intelligence.
Unfortunately the idea that the 9/11 failure was caused by a lack of actionable intelligence gained traction with the Commission. Instead of talking about reforming the FBI’s dysfunctional management practices to remove the bureaucratic inefficiencies that prevented the FBI from acting on the intelligence they had, they talked about creating an additional bureaucracy to oversee the collection and analysis of intelligence.
But creating an additional domestic intelligence gathering apparatus does nothing to address, and actually distracts from, the real problem. The Commission released a number of interim reports, called Staff Statements. Staff Statement number 12 focused on the FBI’s “current capacity to detect and prevent terrorist attacks on the
A second diversion was a bit more of a gamble for the FBI because it risked alienating nearly half the FBI workforce, the more demonstratively effective half of the workforce at that. It was also a gamble because it rested on fallacious premises.
Rather than discuss its management failures the FBI blamed an improper reliance on its criminal law enforcement capabilities to combat terrorism. The focus of the inquiry shifted and media commentators began describing FBI criminal investigators as “gumshoes” more suited to chasing bank robbers than preventing terrorism. It was inferred that criminal investigators didn’t have the skills necessary to collect and analyze intelligence. Indeed the Commission’s report concludes “the concern about the FBI is that it has long favored its criminal justice mission over its national security mission.” This was an unfortunate slur against the FBI’s criminal law enforcement agents, who have an incredible record of investigating, solving, and prosecuting the most complex cases in the FBI, such as public corruption, fraud, organized crime, transnational crime, and … terrorism.
The idea that criminal agents are ineffective in fighting terrorism is false. In fact most terrorism cases that we think of as successful, ones that ended in criminal prosecutions, involved criminal investigators. Both of the successfully prosecuted terrorism cases I was a part of were criminal investigations from start to finish. And intelligence gathering has always been a crucial part of criminal investigations. Agents investigating organized crime all but dismantled the Mafia by collecting and analyzing criminal intelligence. But information gathered by criminal investigators is usually called “evidence” rather than “intelligence.” The difference is purely semantic, but the belief that there is a difference has hampered the FBI’s counterterrorism efforts for years.
But that’s not the only fallacious part of this diversion. In fact, international terrorism investigations never were overseen by the Criminal Division of the FBI.
The FBI has historically been divided into two houses, one devoted to criminal investigations and the other to national security counter-intelligence investigations. They had different missions and used different techniques. Criminal agents investigated violations of federal law with the goal of supporting successful criminal prosecutions. Counter-intelligence agents attempted to identify and counter the national security threat from hostile foreign intelligence services. Criminal agents use grand jury subpoenas, judicially approved search warrants, and court-ordered wiretaps, among other techniques, to gather evidence for use in public trials. At a criminal trial the FBI has to reveal the sources and methods used to gather the evidence to ensure compliance with Constitutional requirements. As a result, criminals know that the government might be listening in on their telephone calls, eavesdropping on their meetings, searching their homes and offices, or reading their mail. They know their co-conspirators might be informants or, worse, undercover FBI agents. Yet the FBI continues to use these techniques effectively in enforcing the law.
Counter-intelligence techniques, on the other hand, are shrouded in secrecy. Much of the FBI’s counter-intelligence work is highly classified, and it is often done in conjunction with other agencies in the intelligence community such as the CIA, NSA, DOD, and the State Department. Espionage cases resulting in public charges receive a lot of attention, but they are rare. The primary function of the agents assigned to counter-intelligence is collecting and analyzing intelligence that is passed along to the White House, State Department, or other offices responsible for shaping and implementing foreign policy. If the FBI uncovers a foreign spy there might be a number of options. The FBI might just monitor the spy’s activities to gain intelligence and neutralize his efforts, or they might, with the concurrence of policy makers, expose the spy and have him removed from the country. Evidence gathered in counter-intelligence investigations often cannot be used in criminal courts, either because the government does not want to reveal sensitive sources and methods, or because those sources and methods would not pass Constitutional muster. Typically this wouldn’t matter because a foreign intelligence agent working here in this country would probably have diplomatic immunity anyway, so no criminal charges could be brought. But simply exposing the agent as a spy would usually be enough to neutralize his effectiveness and have him recalled to his own country. In some cases the policy makers within our government might decide they want to do this quietly, in other cases they might lodge public charges and expel the spy.
Since both criminal agents and counter-intelligence agents are trained and experienced in intelligence collection, you might wonder why the FBI has had such trouble addressing terrorism. The trouble is terrorism doesn’t fit neatly into either side of the FBI. Terrorism could be thought of as a threat to national security, but it is also a violation of federal criminal law. The FBI decided that the terrorism threat was most like the threat from hostile intelligence agencies, and a counter-intelligence approach to the problem was sought. This approach quickly led to problems.
The exposure of COINTELPRO, an FBI counter-intelligence operation against “subversive” groups here in the U.S., including terrorist groups such as the Weather Underground, embarrassed the Bureau and led to the promulgation Attorney General Guidelines to ensure FBI investigations were focused on criminal violations as opposed to Constitutionally protected dissent. As a result domestic terrorism, terrorism committed by groups based here in the
But it was decided that international terrorism, terrorism committed by groups based outside the
The problem is that terrorists are very different from foreign intelligence agents, and the tools used to counter foreign intelligence threats have not proven very effective against terrorists. Obviously preventing terrorism is more important than prosecuting the terrorists, but how can the FBI prevent terrorism without arresting terrorists? Simply exposing the terrorists and expelling them from the country is not an option. Ultimately the terrorists have to be captured and brought before a court, where evidence has to be presented against them. If all of the evidence is inadmissible because it’s classified or won’t survive judicial review, the terrorists go free. One need only look at the Zacarias Mousaoui case, the Jose Padilla case, and the Yaser Hamdi case to see the problem with using a counter-intelligence approach to terrorism.
There are also other disadvantages to the counter-intelligence approach to counterterrorism. Intelligence sharing, both within the FBI, and externally with other intelligence and law enforcement agencies at the federal, state, and local levels is widely acknowledged to be one of the FBI’s most significant deficiencies prior to 9/11. It remains a deficiency today because the FBI is classifying more information than it ever has. The Commission found that “current security requirements nurture over-classification and excessive compartmentalization of information among agencies.” Over-classification of terrorism intelligence creates inefficiencies, making even routine handling of information cumbersome, and is counter-productive to effective intelligence sharing.
Information is supposed to be classified to protect national security, but it is often sources and methods that are actually being protected. Sources and methods are the coin of the realm in counter-intelligence work and they need to be zealously protected to preserve their viability for continued use. From an intelligence collector’s perspective, a productive source is valuable not only for the positive information provided, but for job security. This is true for both the individual collector and the collection agency. The shame of this is that protecting sources and methods is not always as critical as the intelligence communities make it out to be, and it is sometimes counter-productive to the goal of national security. Sources and methods are constantly being burned in criminal cases, yet criminal 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, regardless of law enforcement efforts to catch them. Criminals and terrorists both have to associate, communicate, coordinate, and operate with co-conspirators in order to be effective, all of which make them vulnerable to penetration by law enforcement. Efforts made to avoid law enforcement detection by restricting their communications or associations impair their effectiveness in accomplishing their goals. If preventing terrorism is the goal, making the terrorists less efficient should be part of the solution. Law enforcement agencies must constantly sharpen their methods and develop new techniques to adapt to criminal countermeasures.
This last point is important because counter-intelligence agents aren’t compelled to constantly review and remediate their procedures the way criminal agents are. Earlier I called criminal agents the more demonstratively effective half of the FBI. This is not because the criminal agents are more effective than counter-intelligence agents, but rather because they are able to demonstrate it. When criminal agents arrest a bad guy, everyone knows about it. But the successes of counter-intelligence agents might never be revealed to the public because of the classified nature of the work. But the converse is also true. The public knows when criminal cases go bad, either because bad guys remain at large to terrorize the community or because judges and defense lawyers expose improper law enforcement practices in court. Either way, the public exposure of the blunder compels criminal agents to modify their practices. But counter-intelligence failures aren’t exposed. With no public oversight there is no pressure to reform bad practices. An examination of two counter-intelligence successes, the prosecutions of CIA spy Aldrich Ames and FBI spy Robert Hansen, tend to prove this point. While there was justifiable pride in the ultimate capture of these spies, the fact that they each committed their crimes for over a decade without detection raises concern about the effectiveness of FBI counter-intelligence techniques. Perhaps the sources and methods aren’t worth protecting after all.
But an even larger problem arises when the compulsion to protect sources and methods directly harms national security. Don’t think it happens? Imagine a situation in which a protected source or method provides information that an al Qaeda operative suspected of involvement in the bombing of an American warship has come to the U.S., but a manager decides that the information cannot be passed to criminal investigators because it’s classified. Sound familiar? This is a perfect example of the lapse of reason that occurs in a bureaucracy: a rule is written to ensure a certain objective, but then following the rule becomes more important than meeting the objective the rule was written to ensure.
Another weakness of the counter-intelligence approach to counterterrorism is that classified information is often compartmentalized, so counter-intelligence agents see only a piece of the investigation they’re working on. They might pass along a piece of intelligence never expecting know what is done with it, because they don’t have a “need to know” that portion of the investigation. An intelligence collector’s job is simply to collect the information and pass it on. Post and coast. As a result, they don’t necessarily know whether someone followed up on the intelligence, or even whether the appropriate people saw it. In other words, an agent in Phoenix could discover terrorists taking flight lessons, deduce that it’s part of an al Qaeda plot, send the information to Headquarters, and never get a response, without ever realizing something went wrong.
Over-classification also inappropriately restricts information sharing. The Commission staff evaluating the FBI’s capacity to detect and prevent terrorist acts two and a half years after 9/11 found state and local law enforcement officers assigned to FBI Joint Terrorism Task Forces, the “foundation of the Bureau’s information sharing efforts” according to a former FBI official quoted in the report, are required to obtain the same security clearances agents have. But because others in their departments do not have those clearances, they can’t pass on the information, in some cases not even to their own superiors. The staff quotes a state counterterrorism official: “important information obtained from these national investigations does not reach the officers responsible for patrolling the cities, towns, highways, villages, and neighborhoods of our country.”
The counter-intelligence technique creating the most problems for the FBI’s current counterterrorism effort is the reliance on Foreign Intelligence Surveillance Act warrants for terrorism investigations. FISA was originally developed as a technique to regulate FBI monitoring of foreign intelligence targets. All that needs to be shown to obtain a FISA warrant is that the target of the requested surveillance authorization is an “agent of a foreign power” and the intelligence is being gathered for a national security purpose. When terrorism was identified as a national security matter, FISA was amended to include international terrorist groups as “foreign powers,” allowing agents to seek FISA authorized warrants in terrorism cases. Commentators often speak of FISA authorization as something that is fairly easy to obtain, and civil libertarians worry that the FBI will use FISA as a dodge to get criminal evidence when they don’t have probable cause to get a criminal wiretap order, but this is far from true. Although I have never written a FISA request, I know from others who have that the process is as arduous, frustrating, and time consuming as writing a criminal wiretap request. A 9/11 Commission Staff Monograph on terrorist financing published after the final report was issued gives a detailed picture of the intractable FISA authorization process (the Monograph can be found on the 9/11 Commission web page).
But terrorism is a crime as well as a national security issue, so authorization for wiretaps and search warrants in terrorism cases can also be sought from criminal courts. Title III, which regulates electronic surveillance, and the 4th Amendment, which regulates search warrants, require a showing of probable cause to believe criminal activity is taking place. Clearly a different standard than a FISA warrant, and certainly no easier a standard to meet, but if you can prove a person is part of an international terrorist group, as required under FISA, you can probably use the same information to show probable cause of criminal activity in a Title III request. International terrorist groups only become terrorist groups by committing acts of terrorism, which is a violation of criminal law. So if you have a choice of which type of warrant to seek in a terrorism case, which should you choose?
First, think of this from a purely logistical standpoint: there is one FISA court in Washington, D.C.; there are 94 federal judicial districts spread throughout the
But using FISA instead of criminal warrants is also counter-productive to information sharing because information collected through FISA is highly classified. The Patriot Act removed many of the restrictions that limited sharing FISA information between FBI counter-intelligence agents and FBI criminal agents, but classification issues still restrict the way that intelligence is processed, stored, and transmitted between agents, and between agencies. Worse, it prevents any sharing at all with state and local law enforcement, and complicates admissibility in criminal courts.
Success on another front of the ‘Global War on Terror” is revealing even more shortcomings in the FBI’s reliance on FISA. With military victory in Afghanistan al Qaeda lost its state-sponsored base of operations. As a result an organized structure of command and control can’t be maintained, and the group has splintered into smaller, often nameless, less organized groups who share a militant Islamic fundamentalist ideology but whose connections back to al Qaeda, or any other named terrorist group, are murky at best. (I have heard terrorism experts suggest this evolution demonstrates an organizational genius behind al Qaeda, but it is really just a natural outgrowth of the need to operate clandestinely in a more hostile environment. Domestic terrorist groups, deprived of a safe haven in which to organize from the onset, have used leaderless resistance strategies, autonomous cell operations, and lone wolf techniques for decades. Nobody ever called them geniuses.) FISA warrants are becoming more difficult to get as a result of this evolution because the Act requires evidence that the target is an agent of a specific terrorist “group,” and the “group” is becoming harder to identify.
The Department of Justice is aware of this issue, and has advanced a solution in draft legislation to enhance the Patriot Act. Under the draft legislation, FISA’s definition of “foreign power” would be expanded to “include all persons, regardless of whether they are affiliated with an international terrorist group, who engage in international terrorism.” All persons? All persons could be considered a foreign power? The absurdity of this language just reinforces that terrorism is a square peg being shoved into FISA’s round hole. The operative part of this definition, of course, is “who engage in international terrorism.” But if I have evidence someone is engaged in international terrorism why wouldn’t I just get a criminal Title III warrant?
But if the FBI’s failures in terrorism are more a result of an improper reliance on counter-intelligence techniques, how could the Commission have concluded the problem was an improper reliance on criminal law enforcement? As with any good fable, there has to be a grain of truth to make it believable. There have been a number of criminal prosecutions in terrorism cases and since COINTELPRO domestic terrorism has always been worked as a criminal matter. The Commission is absolutely correct in its conclusion that in criminal cases there is a tendency to focus on the prosecution of the case at hand instead of the larger picture, and then to forget about the larger picture altogether while celebrating a successful prosecution. The Cell, by John Miller, Michael Stone, and Chris Mitchell, is one of the better books tracing the progression of missed opportunities to expand criminal investigations into a broader effort against al Qaeda, from the assassination of Meir Kahane through every al Qaeda attack against the
In my own case, I spent over a year in the early 1990s working undercover against white supremacist extremists, buying guns and bombs and preparing for the race war. When the trials were over I called the Domestic Terrorism Unit and requested to be debriefed, but to my surprise I was turned down. After the Oklahoma City bombing certain specialized units, such as the Crisis Negotiation Unit and the Behavioral Science Unit requested to debrief me, but the Domestic Terrorism Unit still had no interest in an operational debriefing. After my second case, in which I spent six months with Militia and Freeman groups, I was again debriefed by the specialized units, and even by another federal agency, but never by the Domestic Terrorism Unit. Later I even taught counterterrorism at the FBI National Academy, but the managers responsible for overseeing domestic terrorism investigations never showed any interest in coming to my classes. Some of it I chalk up to the institutional arrogance of management demonstrated in the three cases discussed in Chapter 8. Some managers just don’t believe street agents have anything worthwhile to provide.
Another part of it is the FBI disdains experts. J. Edgar Hoover built the FBI as a machine in which each agent was a cog, of exactly equal value and utility as any other cog. Hoover felt he could take an agent out of New York and replace him with an agent from Cincinnati and the machine would continue to run as efficiently as ever. This was fine when Hoover was in charge because agents typically worked stolen car rings, interstate fugitives, and draft dodgers rather than organized crime, transnational crime and terrorism. Not that Hoover’s agents weren’t talented, far from it, but the work itself was not as complex as the work agents do today. Now instead of spending a few years on one squad before transferring to another squad, or another office entirely, agents might spend several years on just one investigation. The expertise developed through this type of work is not as easily replaced, but the FBI never developed a system to capture this expertise. Instead of any kind of formal debriefing, the most agents with an expertise are asked to provide are presentations at in-service training sessions. These are usually “war story” presentations rather than goal driven training, so the value is hard to measure. To boot, this type of training often requires travel, which is considered a perk in the FBI. It also means the agent is taken away from regular squad assignments, which isn’t appreciated by the supervisor who doesn’t get any credit for letting an agent go, or by other agents on the squad who have to pick up the slack for the absent agent. Agent experts are thought to be taking advantage of the system when they go out to give others the benefit of their experience. Animosity soon develops and, as a result, agents are discouraged by their chain of command from providing such training.
Because there is no way to capture experience, agents have to rely on informal contacts to pass information. The Commission staff found that even after 9/11 “the primary way information gets shared is through personal relationships.” The staff seems frustrated that the agents don’t recognize this as a problem, but the attitude clearly comes from the top. A September 2002 Department of Justice Inspector General audit of the FBI’s counterterrorism program criticizes the FBI for its failure to develop a written strategic assessment of the threat and risk of terrorist attacks in the United States, which it promised to the Congress in 1999. The IG report documents the response of the FBI’s highest counterterrorism official:
“In response to our findings, the FBI’s Executive Assistant Director for Counterterrorism and Counterintelligence disagreed that the FBI has not adequately assessed the threat and risk of terrorism. While he acknowledged that the FBI had not conducted a formal written threat assessment…he stated that the FBI knows the risks and threats of terrorism facing the
DOJ IG Report, Sept., 2002
The Executive Assistant Director of the FBI is saying he was fully aware of the threats before 9/11? Keep in mind this conversation is taking place in 2002, just as the Joint House-Senate Intelligence Committee is revealing the extent of the FBI’s pre-9/11 failures. Not surprisingly, the IG concluded “…the professional judgment of FBI officials is not a substitute for a formal and comprehensive written strategic assessment of the threat and risk of terrorist attacks…”
As part of the 9/11 reforms the FBI is building a corps of analysts to try to broaden the FBI’s knowledge and understanding of twenty-first century threats. I felt fortunate to have been asked to provide terrorism training to some of these analysts, many of which are coming over from other agencies. I was impressed by their intelligence, thirst for knowledge, and eagerness to support the mission of the FBI. I am hopeful they will have some luck in developing new analytic capabilities within the Bureau. But new analysts will not make a difference to the overall mission unless there is a change in management attitudes as well. Why would a manager who wouldn’t listen to me listen to an analyst I trained? The Commission staff found attitudes had not changed in the two and a half years since 9/11: “many analysts…complained that they are able to do little actual analysis because they continue to be assigned menial tasks, including covering the phones at the reception desk and emptying office trash bins.”
The lack of analytic research capabilities within the FBI, combined with the institutional aversion to self criticism, result in policies driven by an “urban myth” sort of common wisdom rather than facts. A case-in-point is the aforementioned “lone extremist” terrorist. The FBI has established the lone extremist terrorist as one of the most difficult threats to counter because the lack of interaction with others reduces the vulnerabilities that exist with larger terrorist groups, making lone extremists much more difficult to discover and interdict. Certainly the two decade search for the Unabomber highlights the difficulty associated with identifying an individual bomber whose motives and activities are known only to him. D.C. snipers John Muhammad and Lee Malvo also fit this profile. The problem is the FBI is applying the lone extremist tag to others, such as Oklahoma City bomber Tim McVeigh, who do not fit the profile.
Clearly McVeigh associated with Terry Nichols and Michael Fortier, who were convicted for their roles, but the FBI’s definition of “lone” is wide enough to incorporate a small group, such as Muhammad and Malvo. But media reports reveal that McVeigh and his co-conspirators had associations with several right-wing extremist groups over the years, and McVeigh sold The Turner Diaries, a white-supremacist screed that provided the blueprint for the bombing, at gun shows. That the FBI persisted in referring to McVeigh as a lone extremist despite these associations demonstrates a misunderstanding of how domestic extremist groups operate. Domestic extremist groups preach “leaderless resistance,” which encourages followers to commit individual acts of violence rather than wait for direction from leaders within the movement. Some groups even produce written manuals instructing their followers in “lone wolf” techniques. These techniques are tactical schemes for avoiding law enforcement detection and shielding movement leaders from criminal responsibility for their followers’ actions. The lone wolf technique is a ruse, and the FBI has fallen for it.
Let me make two things absolutely clear. First, I didn’t do any work on the Oklahoma City bombing cases and all I know about McVeigh’s associations with other extremist groups come from media reports. Second, I am not suggesting that others with whom McVeigh associated conspired in the bombing itself – in fact this would have violated the lone wolf guidelines they practiced. What I am suggesting is that the FBI’s designation of someone like McVeigh as a lone extremist fails to recognize the reality behind the ruse and ensures that these extremist groups will survive to spawn future acts of terrorism. Terrorist groups do not act like corporations. There are no rules for obtaining membership in these groups, no employment contracts, no membership cards. With the internet there is no need for meetings or meeting places. The organization is masked with these techniques, but that doesn’t mean there isn’t an organization. This is an information age threat that uses information age technologies to elude detection. The FBI has to develop an understanding of the true nature of the threat in order to develop successful strategies against it. This is especially true as Islamic fundamentalist groups begin to adopt these techniques.
After the Oklahoma City bombing there was not the same public demand to find out and fix what went wrong that followed 9/11. Part of the reason undoubtedly was the quick arrests of those with direct involvement in the bombing. But part of the reason was the FBI’s dismissal of the associations between the bombers and the right-wing extremist movement as irrelevant to the bombing. By labeling the bombers lone extremists, the FBI could be forgiven for not having foreseen and prevented the bombing, and the public could be reassured that there was not a continuing threat. From a prosecution standpoint it is certainly appropriate to discount links that can’t be proven with direct evidence. But from an investigative standpoint, the FBI should have followed up with a deeper inquiry into right-wing extremist terrorism. This is the problem the 9/11 Commission identified. Had the FBI taken advantage of my successful 1993 white supremacist investigation to develop a more effective strategy against right-wing extremist groups, perhaps the Oklahoma City plot might have been discovered. Part of the reason this wasn’t done is that the domestic terrorism side of the house had its own “wall”, the Attorney General Guidelines.
As stated earlier, since COINTELPRO domestic terrorism was worked as a criminal matter, so there were no issues regarding the sharing of classified intelligence. But as a result of COINTELPRO criminal investigations of domestic groups were regulated by Attorney General Guidelines on General Crimes, Racketeering Enterprise and Domestic Security/Terrorism Investigations. The Guidelines were established to ensure that FBI investigations of domestic political or social groups were not initiated unless there was a “reasonable indication” that the group was engaged in activities that involve “force or violence and a violation of the criminal laws of the
FBI supervisors used the AG Guidelines as an impediment to opening domestic terrorism investigations for years by vastly over-stating the “reasonable indication” standard. Both of the successful cases I worked on were negatively impacted by Headquarters supervisors who used the Guidelines as justification to prevent the initiation of the investigations. Were it not for the tenaciousness of two of the finest case agents in the Bureau, neither case would have been opened. I once had a Headquarters supervisor tell me I had to be able to prove a violation of federal law before I could open an investigation. I explained that if I could prove a violation of federal law I would be writing an indictment rather than opening an investigation, to no avail. After the Oklahoma City bombing the Guidelines were blamed, much as the wall was after 9/11, and there was talk of changing them. Director Freeh correctly saw that there was nothing wrong with the Guidelines themselves, but only the FBI’s interpretation of them. Freeh decided that changing the Guidelines was unnecessary and would be a counter-productive response to an attack by groups who believed the government was conspiring against them. Guidelines on the Guidelines were sent around the FBI, but nothing changed. My second case, post-Oklahoma City, was just as stymied by misinterpretation of the Guidelines as the first.
“The wall” and the Guidelines are two facets of the same problem. The lack of an analytic capability results in managers passing information by word of mouth rather than written guidelines. As a result, a common wisdom develops from trying to quickly decipher complex regulations into an easily explained “bottom line” general rule. Because the general rule lacks the nuance and specificity of the written regulations, misunderstandings and misapplications result. The same happens when managers relay factual information about investigations. In discussing an investigation managers rely on what others say about the investigation rather than reading investigative reports. If you’ve ever played the game “telephone” you can see the problem. When there is a conflict, the bureaucracy applies the common wisdom rules to the facts as they heard them rather than performing any real analysis of the facts or the regulations. The problem is compounded when FBI managers more concerned with following the bureaucratic regulations than with accomplishing the FBI’s mission allow these bureaucratic misunderstandings to become real impediments to investigations.
Ironically, the FBI’s ability to succeed despite flawed management practices actually reinforces those flawed practices. When cases succeed everyone gets a pat on the back regardless of whether their participation assisted the investigation or nearly derailed it. As a result managers really never have an opportunity to learn whether they are helping investigations or not. The military has long used after-action reviews to evaluate the performance of each mission, regardless of the results. Everyone involved in the mission takes part in a candid assessment of what assisted the successful completion of the mission, and what did not, so that positive practices can be reinforced and practices that do not assist the mission, or that actually harm the mission, can be identified and corrected. This practice would be of immense benefit to the FBI. As to why the FBI does not use after-action reviews, see the earlier paragraphs on the prohibition against criticizing management.
GIVE ‘EM WHAT THEY WANT
The third obstacle that prevented the 9/11 Commission from coming to the same conclusion as Dale Watson regarding reforming the FBI is that the FBI told them everything they wanted to hear. The Commission was concerned the FBI was too focused on criminal work instead of terrorism, so the FBI created a new Counterterrorism Division. Not enough intelligence? How about a new Office of Intelligence? Want accountability? We’ll make it a “core value.” The computers don’t work? We’ll spend hundreds of millions of dollars to create a brand new information technology network with all the bells and whistles. The trouble is the computers still don’t work, and the other reforms announced at Headquarters still aren’t altering “the realities in the field.”
The FBI says the reforms are a work in progress, and the Commission recognized that institutional change takes time. But if your company bought a new computer system three years ago and it still wasn’t working, would you be in business?
The Commission was clearly enamored with Director Mueller and the scope of the reforms he has promised, but its ambivalence in leaving the FBI intact demonstrates the recognition that the FBI has promised to reform before, but failed to follow through. The Commission has decided to trust the FBI one more time. Should you?
In October 2002 testimony before the Joint House/Senate Intelligence Committee investigating the 9/11 disaster, Director Mueller stated that the 9/11 hijackers “…entered the country lawfully… [and] operated without suspicion, triggering nothing that alerted law enforcement…” This seemed to excuse the FBI from criticism for failing to identify, locate, and interdict the terrorists before they accomplished their mission. But both the Joint Intelligence Committee and the 9/11 Commission found this wasn’t true. The Joint Committee found that the hijackers “maintained a number of contacts” and that “some of those contacts were with individuals known to the FBI, through either past or, at the time, ongoing FBI inquiries and investigations.” These individuals “did provide at least some of he hijackers with substantial assistance while they were in this country.” In a Staff Monograph published after the Final Report, the 9/11 Commission found that all of the hijackers violated at least some aspect of
Two and a half years after 9/11 the Commission staff found FBI agents who said, “the training they received on how to recruit, validate, and maintain assets was inadequate,” and language specialists who said, “their summaries and translations are usually not disseminated broadly, not uploaded into a searchable database, and not systemically analyzed for intelligence value.” And while the staff found praise for legal and policy changes since 9/11, “there appears to be widespread confusion-even among DOJ and FBI personnel-over what the PATRIOT Act actually allows.” Worse, the reforms seem to be adding to the confusion. The staff found that “because the organizational chart for the Counterterrorism Division has changed many times since 9/11, some field office personnel told us that they no longer have any idea who is their primary point of contact at headquarters.” The 9/11 Commission Monograph on terrorist training published after the final report referred to a General Accounting Office investigation into a Department of Justice project to interview thousands of resident aliens based on characteristics similar to those of the 9/11 terrorists. The Commission reported that as of March 2003 “there has been no analysis of the value of the law enforcement leads it yielded, and law enforcement officials differed over whether the interview project helped build ties to the community or created greater hostility within them.” Clearly the FBI still has problems “knowing what it knows” despite the reforms implemented so far. Could it be that the reforms aren’t addressing the real problems?
The 9/11 Commission does offer some concrete suggestions for improving the FBI, which focus primarily on providing training for FBI agents and analysts. The only suggestions targeted at managers are requirements for senior managers to have the same training “certifications” the agents who work for them are required to have. The Commission then leaves Congress holding the bag, suggesting that the FBI “report regularly” to Congress and that Congress “monitor” the FBI to “ensure” the FBI implementing the reforms it promised.
Congress is now picking up where the 9/11 Commission let off. This is a tall order because the Commission called the current state of Congressional oversight of the intelligence community “dysfunctional.” The Commission provides a structural rational for the ineffectiveness of the oversight responsibilities, but the real problem is that Congress does not have the teeth to make its oversight effective. The “power of the purse-strings,” which is the Legislative Branch’s traditional power to check and balance the power of the Executive Branch is totally ineffective in a national security situation. Put yourself in the place of a Congressman who knows that several years ago the FBI squandered millions of dollars allocated to build a state-of-the-art computer system. When the system didn’t work more money was provided to fix it. When the repairs proved ineffective the system was scrapped altogether and hundreds of millions more was supplied to purchase a new system. When that system doesn’t work, and the FBI comes back to you for more money, do you vote to withhold money for a new system and leave the FBI without computers?
But Congress wouldn’t need teeth if the FBI is as committed to reform as Director Mueller convinced the 9/11 Commission it is. Unfortunately, this was just another case of telling the Commission what it wanted to hear. In fact the Department of Justice and the FBI have been frustrating Congressional oversight efforts since 9/11. Senator Patrick Leahy, Ranking Member of the Senate Judiciary Committee, which has oversight responsibility for both the Department of Justice and the FBI, called the Department’s accountability and cooperation with Congress “sparse” and “grudging”, and said “the Justice Department and its agencies consider oversight by Congress to be nothing more than a nuisance.” Senator Leahy also complained that Department documents were being “classified, unclassified, and reclassified to score political points rather than for legitimate national security reasons.” Congress can’t fulfill its obligation to “monitor” the FBI and “ensure” implementation of FBI reforms if Justice and the FBI stonewall oversight efforts. An institution engaged in real reform would encourage oversight, not fear it.
The 9/11 Commission opened only a small window on the FBI. Through their hard work we know the FBI failed in its counterterrorism mission before, promised to reform but did not. The Commission gave us a look at just three FBI counterterrorism investigations. Each one broke down, not because the agents lacked the necessary skills or imagination, but because FBI managers failed to support those agents and their investigations. I am aware of several other terrorism investigations that failed, since 9/11, because of similar mismanagement. These failures are continuing because the reforms the FBI has put in place since 9/11 do not address the real problem.
The FBI needs to reform its management practices. Effective reforms might include enforcing eligibility requirements of at least five years of field experience and a record of true accomplishment before entering the management program; ending self-nomination for supervisory positions and instead mentor and select effective field agents for supervisory positions; developing an objective test, based on FBI rules and procedures, for the selection and promotion of supervisors; reforming the career path to require supervisors to remain in one position for at least five years to develop competence before moving on to the next position; training supervisors to support agents as leaders rather than managers; or holding supervisors responsible for the success of investigations.
The FBI should also empower its greatest asset: FBI agents. FBI agents are the most honest, intelligent, capable, and dedicated employees in government, but too much of their talent is wasted by mismanagement. It is the hard work of agents in the streets of
But the only way to truly reform the FBI is to impose meaningful oversight. The FBI’s internal oversight systems are broken and need to be completely dismantled. A new system can be built, but all internal investigations and inspections should be conducted by experienced field agents rather than supervisors. This will reduce the influence of internal politics and remove the perception of a double standard.
But even if such a system for internal investigations can be built, the FBI still needs to be subjected to direct oversight by an independent Inspector General and an empowered Congress. Congress needs to have greater oversight powers and tools to force accountability, and they need to exercise those powers on behalf of their constituents. Finally, the public has to demand accountability from their elected representatives and from the agencies responsible for national security. These agencies belong to the American people and the American people have a right to know what they’re doing. I left the FBI so I could tell them. Public exposure promotes accountability; secrecy promotes complacency that harms national security.
The FBI should retain the responsibility over domestic intelligence gathering and criminal law enforcement, for all of the reasons delineated in the 9/11 Commission in its report, but the FBI should not be left intact. The FBI does need to be broken into bits and rebuilt to counter the terrorist threat, just as Dale Watson suggested in a moment of candor. But it can be done with real reform and real oversight. The FBI has been trusted to reform on its own before, and failed. This time the public should make a demand: don’t tell me, show me.
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