For deep-seated institutional and historical reasons the FBI cannot do the domestic intelligence work needed to protect this country against terrorism after 9/11.
The problem is not leadership. New FBI Director Robert Mueller has stated his determination to improve FBI domestic intelligence operations. But the terrorist threat is not new. The World Trade Center bombing took place in 1993. Former Director Louis Freeh made terrorism his highest priority.
The problem is the difference between intelligence-gathering and the FBI’s historic mission to investigate serious crime.
The gap in energy and competence is stark: The lapses in FBI intelligence efforts before Sept. 11 are inconceivable in a major FBI criminal investigation. The FBI was at its best after the Oklahoma City bombing, brilliantly swinging into action to find the bombers. Prior to the bombing, however, the FBI had done no serious intelligence work on the kinds of paramilitary and militia groups that might have been responsible.
One explanation from the FBI for that intelligence inaction was concern about violating the Levi Guidelines on domestic intelligence, which were put in place in 1976 after the abuses of the J. Edgar Hoover era. FBI Director Freeh and Deputy Attorney General Jamie Gorelick issued a public clarification that the FBI had been construing those guidelines too narrowly.
The FBI is not known for construing its authority narrowly in a criminal investigation. Why would it do so when it comes to domestic intelligence?
One reason is a deep institutional resistance to getting caught again in the political crosswires of the post-Hoover criticism. In part this resistance is personal: jobs were lost and careers ruined in that era.
The FBI’s capacity for proactive domestic intelligence is severely weakened by the structure of law enforcement in this country. The United States is virtually unique in the world in not having a national police force.
In most countries the day-in-day-out job of policing is done by local forces which are part of an overall national police.
In this country, by contrast, the on-the-ground, day-in-day-out policing job is done by more than 10,000 local police jurisdictions, with almost 700,000 sworn police officers. The FBI’s 12,000 agents are called upon only to deal with federal crimes.
Effective local policing is often proactive and involves intelligence-gathering as much as it does after-the-fact investigation. Our best urban police departments are good at close-to-the-ground intelligence, finding out what is going to happen in order to try to prevent crime before it occurs. But after-the-fact investigation, not preventive intelligence, has been the FBI’s mission; its culture and expertise reflect it. The FBI also lacks relationships with local law enforcement that would enable a cooperative intelligence effort.
All of these factors combine to make it unlikely that the FBI, even with the strongest leadership and the greatest sense of urgency, will do the domestic intelligence job as effectively as it is done in other countries and now must be done here. And a politically driven defensive effort to try to wrench the FBI into something radically different will inevitably weaken its culture and its capacity to do the things it now does well.
What alternatives exist for effective domestic intelligence in the United States?
One alternative would be to give the CIA responsibility for domestic intelligence as it relates to foreign terrorist activity in this country. The CIA has the responsibility for intelligence abroad and its culture and expertise are committed to the intelligence effort.
While CIA operations in this country may frighten some people, there is nothing inherently more dangerous to civil liberties about one agency or the other. Had a foreign terrorist threat like today’s existed in this country when the CIA was created in 1948 (and had J. Edgar Hoover not been around,) it is possible that CIA authority would have extended to that threat. For CIA responsibility to be effective, however, the CIA would have to be given operational authority over FBI resources needed for domestic intelligence purposes.
Another alternative would be to create a new Domestic Intelligence Agency. This would avoid the perceived danger of expanding CIA authority. But it requires creating a new agency. And that new agency, like the CIA, would have to be given operational authority over the FBI for domestic intelligence purposes.
Sen. Dianne Feinstein (D-Calif.) has proposed creating a Director of Intelligence with authority over both the CIA and the FBI, as well as over the military intelligence agencies. That structure may have coordinating advantages, but a new overall director is not an operating agency and cannot magically create one with the culture and mission needed to do the domestic intelligence job.
The most realistic alternative may be to leave the existing organizational structure in place but create “off the charts” a Terrorism Intelligence Operating Group at a working level. Current efforts seem to be moving in this direction. For some time FBI agents have been working at the CIA anti-terrorism center and very recently, it is reported, CIA agents have begun to work at the FBI’s anti-terrorism center.
What is needed is not just “cooperation” but working together continuously, in one place, in effect, if not legal form, a combined operation. Institutional constraints on the sharing of information must disappear completely. The CIA’s culture of intelligence-gathering must dominate over the FBI’s historical mind set of investigation and prosecution. And that intelligence mind set must reach nationwide throughout FBI offices and agents.
If I were the president, I would give to such an Operating Group (possibly with a director drawn from outside either the FBI or the CIA) direct authority over all FBI resources needed for intelligence purposes. I would extend that same authority over other agencies within the Justice Department, such as the Immigration and Naturalization Service, and to other executive agencies engaged in border enforcement, such as the Customs Service in the Treasury Department and the Coast Guard, and other critical functions (such as the FAA and the Department of Energy).
I would also insist that the Operating Group reach out and engage in its intelligence activities the major on-the-ground law enforcement agencies throughout the country, such as large urban police departments.
If necessary, federal legislation could command local law enforcement cooperation; but an anti-terrorist operation with the right kind of presidential mandate would probably not need that legal power.
And if I were the president, for the foreseeable future, I would have that Operating Group itself report directly to me, through the vice president or the national security adviser. (On the theory that we are effectively in a time of war, and more practically so that it would engage the managerial toughness and intelligence of Donald Rumsfeld, it could report to the secretary of defense.) Obviously, the FBI and CIA directors and the attorney general would not like that.
So be it.
The continuing terrorist threat is real. Effective domestic intelligence is not the only answer, but it is essential. We need the urgency and energy of a Manhattan Project for domestic intelligence. Existing institutional structures, with all of their accumulated cultures and histories, must not stand in the way of what now needs to be done.
