But when the Commission’s report came out in August, it noted the praiseworthy changes Mueller had been making at the FBI in the interimrefocusing the Bureau’s agents on intelligence work and making structural reforms to speed the flow of information and make the FBI more nimble and responsive. The Commission congratulated Mueller for “significant” though “far from complete” progress in transforming the Bureau into what agents have begun to callnot derisively, one hopesthe “Federal Bureau of Intelligence.” Commission Chair Thomas Kean said of Mueller: “We think he’s doing exactly the right thing.” Shelby’s recommendations were all but forgotten, and with George Tenet’s forced resignation from the CIA, Mueller’s FBI became the major intelligence player in town.
Official Washington’s renewed faith in the FBI is far from misplaced. The new, well-thought-out measures Mueller has taken to reform the Bureau have the FBI focusing on terror more precisely and intently than it ever has before. The question, however, is whether it will continue down that path. And the Bureau’s history suggests that unless Congress takes an active role in keeping the FBI on task, the mission’s focus is likely to waver, and an institutional nervousness that has in the past kept it from taking on essential, politically delicate investigations is likely to reemerge.
In the wake of intelligence scandals in the 1970s, when former FBI director J. Edgar Hoover’s outrageous abuses of domestic surveillance were exposed, the reaction of lawmakers and the public was, overwhelmingly, to turn against the whole idea of domestic intelligence. The FBI had so deeply internalized this aversion that in the wake of Spring of 2001, when I asked the assistant director in charge of the National Security Division, Neil Gallagher, what the Bureau was doing to fight terrorism, he simply told me, “We’re not violating anyone’s civil liberties.” That, as would become evident during the 9/11 Commission hearings, was simply Bureau code for not doing anything at all. And, tragically, it turned out that the only thing that might have changed the outcome of 9/11 was precisely the sort of targeted, patient domestic surveillance that the Bureau no longer had any taste for.
But such extreme political sensitivity is really nothing new for the FBI. Throughout its history, the Bureau has shunned those assignments that could have helped the nation the most but which also ran the risk of getting the Bureau into political hot waterjobs like busting crooked politicians or corporate criminals. It is no exaggeration to say that the FBI has the talent, the resources, and the experience to do whatever is required to accomplish any law enforcement or intelligence mission which the nation assigns it. But too often, over the years, our criticism has kept the Bureau from doing the really important workwe trained the FBI, like a dog that has been beaten too often for barking, not to bark at all.
For all its institutional dysfunction, the FBI had in fact come tantalizingly close to the 9/11 conspiracy during the summer of 2001. No one can say with any certainty that even if the Bureau had pursued all its leads vigorously and effectively, it could have spared the country the 9/11 attacks. But the FBI did not pursue those leadsand they were very good oneseither vigorously or effectively.
For two years before the attacks, the whole American intelligence communitythe FBI, CIA, and the Defense Intelligence Agencyhad been getting vague reports that bin Laden was planning to strike inside the United States. One CIA report, not passed to the FBI, said he was considering using commercial pilots in a “spectacular and traumatic” attack on the country.
But such warnings were non-specific, almost theoretical. The FBI had much firmer leads it should have acted on. On July 10, 2001, FBI agent Kenneth Williams of the Phoenix field office sent Washington headquarters an “electronic communication” that pointed directly to the unfolding conspiracy. Williams had been watching several Middle Eastern men in his area for more than a year and had noticed that a number of them were taking flight instruction at the local branch of a prominent flight school. Williams suspected these men might be part of a coordinated campaign by Muslim extremists to use civil aviation to attack the United States. But Williams’s memo went nowhere at headquarters, after being routed to units within the Bureau’s counterterrorism section in Washington. There, specialists worried that Williams’s suggestion that the FBI look into Middle Eastern men taking flight lessons “might raise racial profiling issues,” so they shelved his memo. Because the Bureau was so gun shy about getting caught even in the neighborhood of a civil liberties violation, it never did look to see if there were other “Middle Eastern men” getting pilot training elsewhere in the nation. And there certainly were.
A month after Williams’s tip, headquarters got another lead just as good, maybe even better. Tipped off by alert flight instructors at the Pan American International Flight School in Minnesota, FBI agents from the Minneapolis field office arrested a French-born Moroccan student pilot named Zacarias Moussaoui. Moussaoui had asked for time on Pan American’s Boeing 747 flight simulatora strange request, because that machine was usually used only by newly hired airline pilots or by veteran airline pilots refreshing their skills. Moussaoui was arrested for a passport violation, but when agents from the Minneapolis office asked headquarters to broaden the investigation, they were accused of trying to get leadership “spun up” about a merely conjectural threat. The Minneapolis agents had to spend the next four weeks trying push their application for a warrant to search Moussaoui’s computer and personal effects through bureaucratic mazes set up by headquarters supervisors and lawyers. They got nowhere. Their application was even sabotaged by headquarters officials who seemed far more worried that a judge or a reporter might someday criticize the Bureau for proceeding with a less than airtight case than that they might be letting a plot against America proceed with impunity.
The Phoenix and Minneapolis field offices had given the FBI leads that were at least as good as those the Bureau had gotten in any of the great cases of its history. Had the Minneapolis agents been able to pursue their Moussaoui leads before 9/11 (as they finally did after the attacks), they would have quickly discovered an alarming connection between Moussaoui and bin Laden’s personal pilotwho had trained at the Norman, Okla., flight school where Moussaoui had begun his flying lessons, and who had begun cooperating with the Bureau after the East African embassy bombings. The FBI would have also learned that Moussaoui was receiving large sums of money, perhaps for a hijack team he would lead. And if headquarters had also been investigating the names Williams had furnished in his electronic communication, the Bureau would have been led to the imam who was the hijackers’ spiritual leader in San Diego, and the imam of the mosque where two of the hijackers worshipped. They would have then seen the significance of an Aug. 27, 2001, tip from the CIA that those two hijackers, both of whom had recently been added to the terrorist watch list, had arrived in the country. The Bureau had an informant in San Diego who could have been sent to make inquiries that might well have tightened the noose around those two. A simple credit-card trace would have found themboth used VISA cards in their own names to buy tickets on the hijacked planes.
But one reason these great leads went nowhere was because the FBI had not developed the web of informants it would have needed in order to pursue them quickly and effectively. It is true that most of the Bureau’s great espionage and criminal cases were cracked by what seem to have been lucky breakswalk-ins from the Woman in Red or from a defecting Soviet agentbut in all of these cases, the FBI had already collected information from domestic surveillance and set up networks of informants to exploit those fortunate leads. But by 2001, the Bureau, in the opinion of Clinton and Bush terrorism expert Richard Clarke, didn’t “know whether or not there was anything going on in the United States.”
After the assassination of the Zionist leader Meir Kahane in 1990, and certainly after the first bombing of the World Trade Center three years later, it was obvious to the entire law enforcement and intelligence community that a radical, well-organized Muslim extremist underground had taken root in the United States, financed and organized overseas, and eager to inflict profound damage on America. So why was the FBI not keeping its eye on this threat? Why did it not turn these early Islamic terror attacks into comprehensive “enterprise-wide” investigations that might have given the Clinton and Bush administrations justification to root out these organizations and their bases overseas, if necessary by armed force, long before 9/11? Because the Bureau had long ago lost the ability to learn about what was going on in potentially dangerous groups in the United States. It had deliberately blinded itself because it had decided that the country did not want, and would not tolerate, domestic surveillance until after a crime had been committedif even then.
This FBI defense mechanism of shying away from casesoften the most important oneswhen it doubts it has political or public support for pursuing them has been a persistent institutional deficiency throughout the Bureau’s history. And this failure represents a tragic flight from its original mission. The Bureau was founded to do great things, and only great things. Had it acted on that principle, devoting itself to only the most difficult and important areas of investigation, 9/11 might have turned out very differently.
The FBI can trace its origins to an 1871 appropriation for the “detection of crimes against the United States” intended to equip the Justice Department to fight the Ku Klux Klan. The Bureau was formally organized in 1908 to give the Justice Department the means to investigate corrupt congressmen and senators who were pillaging the public lands. The Bureau’s founders, President Theodore Roosevelt and his Attorney General Charles Bonaparte, expected that the FBI would continue to concentrate exclusively on those types of crime too sensitive and difficult for anyone else to tackle: high-level political corruption and corporate crime, national and international organized crime, and eventually, espionage and threats to national security.
This wasand remainsa great charge. But no sooner had Roosevelt and Bonaparte left office in 1909 than the new Bureau began to edge away from the course they had set. The FBI began to devote most of its resources not to high-level crime but to those individual offenses against persons and property that fell within its jurisdiction. The cases the Bureau picked tended to involve politically unpopular figures or organizations that were guilty of not much more than their unpopularity (socialists, union organizers, racial or ethnic minorities). Sometimes the FBI also conducted manhunts for street criminals who had captured the imagination of the sensationalistic press (like John Dillinger), or launched crusades against men or women who had become symbols of social problems: prostitution, drugs, or, more recently, Internet pedophilia. In 1910, for example, Congress passed the Mann Act to combat interstate and international prostitution rings. The Bureau, instead of investigating national and international white slavery, began to arrest individual prostitutes and their clients. The most sensational of these cases was the Bureau’s arrest of the controversial and unpopular (within white America, that is) black heavyweight boxing champion Jack Johnson, who had brought his white mistress across a state line to live with him in Chicago. The case earned the Bureau headlines and acclaim, but it is hard to argue that it struck much of a blow against the politically protected prostitution rackets that were the intended target of the Mann Act.
World War I moved the Bureau into the undeniably vital area of national security, hunting down spies and saboteurs. In view of the Bureau’s perpetual battles with the CIA and other agencies (friction that contributed to its 9/11 failures), it is worth noting that the Bureau did not originally seek out this task, but embraced it reluctantly in order to protect its turf from rival agenciesthe Treasury Department’s Secret Service, and Army and Navy intelligence, all of which wanted a share of the crowd-pleasing business of spy hunting. Unable to find enough real spies or saboteurs to justify the enormous expansion pressed on them by Congress, Bureau agents spent their time harassing antiwar activistsradical members of the Industrial Workers of the World and socialists who opposed the draftwhose offense was less any threat to the war effort than their political unpopularity, particularly among those business leaders who saw the war as an opportunity to paint labor agitators as traitors.
The Bureau got into trouble in 1920 after the Palmer raids (led, incidentally, by a young Justice Department attorney named J. Edgar Hoover), in which the Bureau rounded up thousands of aliens who had violated immigration regulations by joining the two just-formed American communist parties. It got into more trouble when it tried to cover up the Teapot Dome scandals of the Harding administration by trying to intimidate administration critics. With many calling for it to be abolished, the Bureau, with Hoover now its director, retreated into the apolitical field of “police professionalism.” During the 1920s, Hoover led a movement to popularize scientific crime detection, and he crusaded for the independence of police forces (and the Bureau) by removing them from political control. The Bureau did help bring local law enforcement into the 20th century, but it also, then and forever after, involved itself in endless busy-work helping local law enforcement solve its managerial and technical problems. Then when the FBI was unleashed against the Midwest bank robbers who were winning folk-hero status during the depression, the John Dillinger, Pretty Boy Floyd, and Baby Face Nelson manhunts turned the G-Men and Hoover into national celebrities, and reinforced the FBI’s belief that it could do no wrong if it kept exclusively to flashier, lower-level cases.
It wasn’t that there was no more important work for the FBI to do. Organized crime was establishing a grip on labor unions, state and municipal governments, and control over entire industries. Senators and congressmen basked in Hoover’s assurances that he would never, under any circumstances, investigate themunless, of course, they criticized the Bureau. Blacks were routinely being brutalized under color of the law in the South. And, during the ’30s, the Soviet Union was establishing the espionage networks that would deliver the secrets of the atom bomb to Moscow during World War II. But the FBI kept chasing bank robbers and kidnappers.
Even in the days of its greatest popularity, the Bureau had its detractors. Ever since the Palmer raids, the left had seethed with hatred toward Hoover and his FBI. But Hoover’s Bureau arrogantly assumed that its enemies could always be ignored, that they would be without voice or power. In the wake of Vietnam and Watergate, however, the left found a receptive popular audience for its brief against Hoover and the FBI. And that argumentthat the Bureau was the sworn enemy of civil liberties, and had to be defanged and declawedbecame something approaching political orthodoxy after the 1975 investigations led by Sen. Frank Church of Idaho.
The FBI’s abuses of its power during the later Hoover years had been so outrageous that their disclosure in congressional hearings and the manner in which they were exposed, destroyed the public support on which the FBI’s effectiveness had always depended. Americans heard lurid tales of a Bureau that had run political errands for presidents and kept tabs on their political enemies; a Bureau suspected of blackmailing legislators who dared to criticize it; that had pursued a vicious vendetta against Martin Luther King Jr.; and that had waged a secret war to destroy the anti-Vietnam War movement. The Church Committee’s final report tied all of these abuses together with what it claimed was an “unexpressed major premise” behind the Bureau’s actions: that the FBI had taken upon itself “the duty to do whatever is necessary to combat perceived threats to the existing social and political order.” The Church Committee’s “unexpressed major premise” theory turned the prosaic record of FBI abuses into an epic of evil, and led many of us to conclude that the Bureau was doing something wrong when it managed to know anything about anybody. In a phrase borrowed from Noam Chomsky’s introduction to an expos of the Bureau, the Church Committee concluded that the Bureau had been waging “a secret war on political freedom.”
The public reaction to these revelations caused a deeply damaging shift in the FBI’s culture. Though the FBI had repeatedly abused its domestic intelligence investigations, America still needed an agency to gather legitimate domestic intelligence. Someone needed to be keeping an eye on violent groups like the Symbionese Liberation Army and the Weather Underground. But the FBI, after three of its top officials were indicted, and two of them convicted, for authorizing burglaries of the homes of relatives of the Weather Underground, decided that it had taken enough risks for a country that didn’t care. Concluding that we simply didn’t want the Bureau to be gathering any domestic intelligence any more, the FBI became risk-aversive through and through whenever an investigation might possibly step on someone’s civil liberties.
Director Clarence Kelley responded to the Church Committee’s indictment by taking domestic surveillance from the Intelligence Division of the Bureau and giving it to the Criminal Investigations Division, so all such cases had to be predicated on evidence that a federal crime had been or was on the verge of being committed. Attorney General Edward Levi further hedged domestic intelligence investigations with such rigid guidelines that he signaled to agents that domestic surveillance, while theoretically still possible, was to be regarded as a career-ender. Former Deputy Associate Director Buck Revell wrote in his memoirs that “the Counter-Terrorism Section was effectively neutralized. After all of the removals and censures, we practically had to order people to work on counter terrorism investigationsTo work counter terrorism was to become a target for the wildest and cruelest of accusations a law enforcement officer could possibly endure.”
So what was a director to do? Having learned the lesson that domestic surveillance would always be denounced as a violation of civil liberties, Director Louis Freeh, who ran the Bureau from 1993-2001, tried to project an image of an organization that was primarily dedicated to defending civil liberties, even at the cost of not getting its man. Not only did he insist that “constitutional guarantees are more important than the outcome of any single interview, search for evidence, or investigation,” but he also told agents that any Bureau lapses from “the highest ethical standards” could set the FBI on a slippery slope to something resembling the German Holocaustwhich had begun, Freeh said, “when the law [was] subject to the most horrifying misuse by the police.”
So it is unfair to blame the FBI alone for its reluctance during the 1990s to track down al Qaeda. After all, the public was sending the Bureau a message it could interpret only one way. We said that we wanted the FBI to prevent terror attacks, but we were not willing to tolerate any violations of civil liberties to achieve that aim, even though domestic intelligence gathering has always meant getting some dirt underneath your nails. So the FBI, obeying its highly developed instinct for self-preservation, decided that the real message was that no matter what else it does, even if it means doing nothing, don’t mess around with anyone’s civil liberties. And so when Congress handed it the fight against terror, the Bureau fell back on what it knew was safe, what it was good at, and what had always won it praise in the past. And that was to fight terror through law enforcement, not by gathering intelligence. Instead of stopping terrorists before they hit, it would hunt them down afterwards.
That now seems a woefully inadequate strategy, but at the time it gave the government a way of looking like as if it was doing something about terror, at a time when there was no will to do anything about it militarily. The 2003 Congressional Joint Inquiry into 9/11 noted that “in the absence of a more comprehensive strategy, the United States defaulted to relying on law enforcement, at home and abroad, as the leading instrument in the fight against al-Qa’ida.” Instead of sending in the Marines, “the perpetrators of the 1993 World Trade Center bombing and the plot against New York City landmarks, several conspirators in the 1998 embassy bombings, and several members that planned Millennium attacks were all prosecuted.” Some FBI agents thought this policy was ridiculous, that no law-enforcement agency was going to be effective against a quasi-military threat like al Qaeda. The counterterror instructions, one gruff agent told the Congressional Joint Inquiry into 9/11, were “like telling the FBI after Pearl Harbor to go to Tokyo and arrest the emperor.”
The Bureau’s personnel does not take naturally to the tedious minutiae of gathering and analyzing intelligence on terrorist organizationstranslation, satellite photo analysis, chatting up friendly imams in Buffalo. After all, the G in G-Men is not supposed to stand for “geek.” FBI agents are cops at heart: They typically majored in criminal justice, worked as local police officers for a few years, took as many fingerprinting and gang tactics courses as they could, and applied to the Bureau because they thought it was the best law enforcement agency in the world. And when you look at them, they embody a muscular approach to problem solving. You simply can’t find a more imposing bunch of bicep-bulging physical specimens anywhere else in the countrywith the possible exception of maximum-security prisons.
But the FBI is certainly capable of using its brains as well as its brawn. When the Bureau has felt assured that the public will support it if it unleashes its formidable capabilities against networks of criminals or terrorists, the results have been remarkable.
The FBI campaign against the militias during the 1990s is a case in point. Now, after September 11, the threat of the rural militias can seem almost quaintcamouflaged gun collectors marching around their chicken coops muttering darkly about U.N. helicopters. But a decade ago, these violence-prone private armies represented a significant threat to public safety (and to local governments, since they were usually refusing to pay taxes). Then there were the individual right-wing extremists who bombed the Murrah Federal Building in Oklahoma City in 1995, killing more than 300 people, the worst act of terrorism committed in this country to that date; dozens of bombings at abortion clinics around the country throughout the ’90s; the Centennial Park bombing at the Atlanta Olympics in 1996; and the deadly standoffs with weapons-stockpiling militants at Ruby Ridge and Waco. And after a bloody series of blunders, the Bureau developed a cerebral approach to dealing with such extremism, a sophisticated blend of intelligence gathering and patient sieges, as at Jordan, Mont., that showed it could defuse dangerous threats with minimum bloodshed.
But the FBI was able to succeed in these missions because it had political support. The Bureau learned that even if it made mistakes, as it did most flamboyantly at Ruby Ridge and Waco, the public, and more importantly its traditional liberal critics, would not take those fiascos as a reason to terminate the campaign against the violent right. Those who most objected to the anti-militia campaign were conservative Republicans who could be counted on to come back to the FBI fold in the end, while Democrats saw the Bureau’s campaign as furthering the cause of gun control and advancing the political strategy of linking the Republican right to terrorist extremism.
Another example of the FBI’s ability to investigate and destroy entire criminal enterprises was its success against the Mafia in the 1980s, when a patient 10-year-long investigation involving undercover agents, a web of informants and tens of thousands of hours of wiretaps resulted in the virtual destruction of a criminal organization that for most of a century had been so impervious to law enforcement that it could, and often did, get away with murder. Why was the FBI able to move so effectively against the Mafia in the 1980s after being unableand unwillingtake on the mob throughout its history? Not until that decade could the Bureau feel completely sure that its political superiors would really back, the FBI if it investigated the mafiaa crucial assurance since the mob had sunk deep roots not only in the labor unions (important constituents of local and national politicians), but it in some places such as New York, it even controlled city and state political machines. The Bureau had never known when political pressure would ease off on the mob, or whether should it be caught cutting constitutional corners in its investigations, it would be hung out to dry. The Bureau got a clear public message when it was, in the mid-’70s, armed with legal authority to employ court supervised wiretapsit had been forbidden to wiretap at all until 1968, and before that, the results were considered illegal searches and could not be used in court. The new regulation, combined with Congress’ passage of the Racketeer Influenced and Corrupt Organizations Act of 1970 (RICO) let the Bureau convict mob bosses for the crimes of their underlings. And so the Bureau finally went to war with the Mafia; after 10 years of hard work, the convictions started rolling in.
But when al Qaeda began to emerge as a threat, the FBI had long since decided that unless it had an express public mandate, it was not going to risk investigating political or religious groups that had not yet broken the law. It had gotten burned too badly, for instance, when it looked into American groups supporting the cause of guerrilla insurgencies in Central America. Unfortunately, the American public only became serious about the al Qaeda threat after 9/11 (if indeed, we are serious even nowrecurrent outcries about FBI efforts to gather information on Moslem communities make you wonder). During those years when it might have been doing something about Islamic terror cells in America, the Bureau felt it had less to fear from al Qaeda than from those of us who were always looking for a chance to bash the Bureau.
And so rather than launch an investigation of the entire enterprise of Islamic terror, the Bureau treated the first attacks as simple matters of law enforcement, tracking down and capturing those who had committed terror attacks on Americans at home or abroad. In these investigations, it proved itself capable of the most remarkable feats of long distance law enforcement, going to the Afghan-Pakistani border, for example, to “render” Mir Aimal Kansi, who had shot up CIA headquarters in Langley, Va., in 1993, back to America where he was tried and executed.
Instead of applying the lessons learned in its organized-crime investigations, during which it had used an “enterprise” approach to bring down entire criminal organizations, or in counterespionage, where it patiently worked to roll up entire espionage rings, the Bureau insisted on treating terror attacks as simple acts of murder. Instead of building a case against all of al Qaeda that might have made early military intervention against bin Laden’s safe haven in Afghanistan palatable to the public before 9/11, the Bureau was content to convict individual terrorists, paring down its cases into forceful courtroom presentation with no loose ends like a conspiratorial mastermind named bin Laden whose absence might have confused a jury.
The current debate over what to do with the FBI has gotten caught up in two simple but incomplete questions. The first is how much extra statutory power the Bureau needs to fight terrorism. But the plain fact is that had the FBI been willing to exercise all of its existing authority, it would not have needed any new laws. The Bureau did not really need the Patriot Act to fight the war on terror, except as a signal that it now had a go-ahead for the domestic intelligence investigations it should have been carrying out all along.
For the Bureau, the key provisions of the Patriot Act were a restatement of the requirements for a search warrant from the Foreign Intelligence Surveillance Act (FISA) court, and clarification of when the FBI could share information from intelligence and criminal investigations with other intelligence agencies when the case file included grand jury testimony. These are worthy initiatives, and if followed they will have the effect of eliminating the notorious “walls” between intelligence agencies of which the 9/11 Commission has rightly been so critical. But neither of these provisions breaks new legal ground: Functionally, they are merely reminders that the FBI ought to be taking advantage of authority it had already been granted. They are a prod, a legislative attempt to get the Bureau back on the ball.
Beyond those two provisions, the rest of the Patriot Act has been counterproductive. Giving the Bureau authority to demand library borrowers’ records, or bank clients’ records without court order (the latter authority was recently overturned by a federal court) were not needed, and have not proved especially useful. Worse, these provisions waved a red flag in front of what is now an aggressive civil-liberties industry that lives for just those kinds of confrontations. Attorney General John Ashcroft and the Bush administration managed to turn a consensus in favor of a sensible domestic surveillance policy after 9/11, which should have unified the country behind the Bureau, into a divisive wedge issue. The only possible motive for such overreach was a political strategy of provoking opposition in order to paint opponents as enemies of the war on terror. By weakening the public support for the FBI’s gathering domestic intelligence, the Patriot Act set back the Bureau’s drive against terror.
In addition to the argument over the Patriot Act, Congress and the two presidential candidates are now immersed in a debate over whether the FBI is capable of performing both law enforcement and intelligence tasks, or whether the nation’s domestic intelligence capabilities should be cleaved off into a new agency. Those who have argued that the functions are mutually incompatible have said that the FBI has tended to get impatient with longer, intelligence style investigations. They have also pointed to the experience of MI5, which has had success in recruiting moderate Muslims as spies that its supporters say is only possible because an MI5 investigation did not carry with it the threat of arrest. That may well be, but the law abiding members of a community are not likely to know many terrorists or what they are up to. Good people know good people, and bad people know bad people, and the FBI’s law officer status is essential to turning bad guys into informants.
Moreover, as Mueller has argued, an effective campaign against terror requires comprehensive cooperation between local, state, and foreign law enforcement and intelligence agencies, as well as with the public. The FBI has built decades of relationships at all these levels. Its field offices and resident agencies have always had to maintain liaison with local and state authorities, as well as with district and United States attorneys. These relationships cannot be readily duplicated by a new agency, since they are based not on a few cold calls or letters of introduction but on a history of cooperatively solving cases, resolving mutual problems, and rendering mutual assistance.
Breaking up the FBI would also deprive the country of one of its most effective weapons against terror, because the Bureau, for all its faults, is a great institution, and such greatness is not achieved overnight. To destroy itand taking away its most important mission would certainly destroy it, depriving it of its ability to attract the best talent and inspire the level of achievement that comes within an elite institutionwould be folly. The Bureau’s ability to attract the best rests on the fact that it gets the best work, and so when there is important work to be done, the Bureau gets the job. And so the 9/11 Commission has wisely approved Mueller’s reforms and affirmed that the FBI can effectively fight both law enforcement and terrorism.
And in reality, the fundamental problem with the FBI was not that it couldn’t handle intelligence, but that it routinely declined to handle the most difficult and politically delicate cases, because by the 1990s its reading of public opinion, Congress, and the media was that the country simply did not want it to do domestic intelligence. Without an adequate level of political and public support, no new MI5 would be able to do any better. The FBI’s current focus on terror proves that it is willing to assume, until proven wrong, that there does now exist public support for gathering intelligence on potentially dangerous groups and individuals who might commit terror attacks.
But even if we have convinced the FBI that terror is not a politically risky area for it to tackle, that doesn’t mean that we have cured the Bureau of its long-time disinclination to do politically unpopular work. If we could, we might direct them to the kind of work no one else can do, rooting out political corruption or, more urgently, combating corporate crime. Over the past two decades, the American economy has been staggered by multi-billion-dollar frauds most notably, the Savings & Loan scandals of the 1980s and Enron-type scandals of recent years. When the FBI tried to investigate the S&L scandals, it found its way blocked by the corporate criminals’ influence in the Senate. And even after that S&L scandal, the FBI was rebuffed when it appealed for more funds to support investigations of the banking industry. The political influence of big money has certainly not been diminished: Famously, Enron’s chairman Ken Lay was one of President Bush’s largest contributors. The swindles of the S&Ls and Enron did not evolve entirely in the dark; in each case, regulators suspected something fishy was going on. But they didn’t have the expertise in or powers of surveillance and wiretap to get inside executive suites and discover what was really going on. The FBI does. But if we want these kinds of investigations conducted, Congress will have to send a clear message that we want the Bureau to root out corporate crime; otherwise, the FBI will consider this a politically touchy area and steer clear. Beyond terrorism, it is hard to imagine a more worthy target for the Bureau; the S&L frauds alone cost taxpayers more than all the bank robberies in history, combined.
There is one more reason why the Bureau did not rouse itself more fully against the threat of Islamic terror in the 1990s: The FBI may have become too big. The Bureau’s staff averaged roughly 11,000 agents throughout the 1990s, working on a sprawling array of law enforcement programs, unable to sort out its missions, and with managers intent on protecting their staffing and turf. The FBI was tracking down bank robbers, profiling serial criminals, surfing the Internet for pedophiles, rounding up street gangs, and policing Indian reservationsall of which ate up manpower. And the most innovative divisionswhich because of their nature do not return quantifiable resultstended to be sacrificed to keep the routine grinding along. There was so much work to be done in the lower reaches of law enforcement that there were never enough resources for the fight against terror, and these were lent only grudginglyand then withdrawn as soon as Congress stopped watching.
The current FBI is so large that it cannot be wholly occupied by its most important missions: There simply aren’t enough terrorists to fight. And experience teaches that if the Bureau can expend its resources on routine police work, it will. A Bureau-wide mission creep will set in, steadily stripping agents from the tasks that don’t bring quick results and might bring criticism and dispatching them to cases with quicker payoffs in publicity and convictions.
The solution may be to pare down the FBI’s size and mission, forcing it to do the important things it doesn’t want to do by taking away those (comparatively trivial) responsibilities that have been a refuge from criticism when times are tough for the Bureau. The FBI should focus only on those highest level “crimes against the United States” that were its original mission, investigations that no other can conduct, and at which, as former Deputy Director Bear Bryant put it, if it fails, the nation will fall. The FBI needs to work almost exclusively on preventing terrorist attacks, rooting out political corruption, catching spies, and fighting corporate crime and criminal organizationsthose difficult, complicated, patient investigations which are essential for our national security.
We have to remember that, as the FBI becomes an intelligence agency, it must still be a police force, or else political corruption and Enron-level corporate crimes will go unwatched, undeterred, and unpunished. Justice Department statistics from October suggest not enough has changed: The Bureau still devotes too many resources to routine police work like bank robberies, so that despite its large, perhaps bloated size, it never seems to have enough resources for top-level investigations, not against only terror, but also in politically sensitive but vital areas like massive corporate fraud or government corruption.
But in the end, the FBI can’t be expected to protect a country that doesn’t want to be protected. For at least a quarter century, every signal we have sent to the FBI was that we did not want to be protected, and we punished it whenever it tried. We told the FBI what we wanted it to bean FBI that never violated anybody’s civil liberties, even if it was not doing anything else. In the end, we got the FBI that we wanted. Well, the FBI is showing us that it wants to change. But do we?
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Richard Gid Powers is professor of history at the College of Staten Island and the CUNY Graduate Center. This article is adapted from the forthcoming book, Broken, by Richard Gid Powers to be published by The Free Press, an imprint of Simon & Schuster, Inc, N.Y. Copyright 2004 by Richard Gid Powers.
