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Site Map REPORT OF THE JOINT INQUIRY INTO THE TERRORIST ATTACKS OF SEPTEMBER 11, 2001 |
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These new rules, however, did not make major changes in the 1995 guidelines, and were clearly insufficient to change the institutional culture that had developed within the FBI and the Justice Department around what was now the virtually unchallenged conventional wisdom of the "no coordination" myth. Investigators working before September 11 to get to the bottom of alarming terrorist cases such as those of Khalid al-Mihdhar, Nawafal-Hazmi, and Zacarias Moussaoui repeatedly ran into the "Wall" and its institutional side-effects: an investigative culture positively allergic to LEA/IC information-sharing and coordination, and remarkably ignorant about how much such cooperation was actually allowed. FBI special agents in the New York Field office working on the Bureau's investigation of the bombing of the Navy destroyer USS Cole by Al-Qa'ida, for instance, met with CIA officials in June 200l in an effort to obtain information. At this point, the CIA knew both that al-Mihdhar and al-Hazmi were linked to a prime suspect in the Cole attack and that they were both in the United States, but it refused to give the FBI this information. Former CIA CTC chief Cofer Black later testified before Congress that the CIA's refusal to tell the FBI about these two terrorists loose in the United States had been entirely consistent with "rules against contaminating criminal investigators with intelligence information."97 As one of the FBI agents involved in this episode put it, "'[t]he Wall', and implied, interpreted, created or assumed restrictions regarding it, prevented myself [ sic] and other FBI agents working a criminal case out of the New York Field Office _______________ 97 Coter Black, written statement presented to joint SSCI/HPSCI hearing (September 26, 2002), at 3. 80 to obtain information from [the] Intelligence Community, regarding Khalid al-Mihdhar and Nawaf al-Hazmi in a meeting on June 11, 2001," [98] _______________ 98 JIS, written statement presented to joint SSCI/HPSCI hearing (September 20, 2002), at 21. 81 Nor was this all. After the FBI was belatedly notified by the CIA in August 2001 that known Al- Qa'ida terrorists al-Mihdhar and al-Hazmi were in the United States, the Bureau began trying to track them down. Despite the urgency of this task, however, FBI Headquarters prohibited FBI criminal investigators in New York from participating in the search for these terrorists and refused even to tell them what little was known about the two men at the time. As one of the New York agents was informed in an e-mail from Washington, D.C" "that information will be passed over the wall" only if "information is developed indicating the existence of a substantial federal crime." [99] Perceiving there to be an unbridgeable gap between law enforcement and intelligence work, the FBI thus refused even to talk to itself in order to prevent mayhem by known Al-Qa'ida terrorists in the United States. Meanwhile, al-Mihdhar and al-Hazmi were in the final stages of their preparations for the September 11 attacks. As noted by the JIS, these information sharing problems clearly "reflect misunderstandings that have developed over the last several years about using information derived from intelligence gathering activities in criminal investigations." [100] DOJ's "policies and practices regarding the use of intelligence information in FBI criminal investigations" helped make it enormously harder for the government to find al-Mihdhar and al-Hazmi in the last weeks before September 11 [101] -even though they were both living and traveling under their true names at the time, and a simple Internet search requested by one of the New York FBI agents _______________ 99 JIS, written statement presented to joint SSCI/HPSCI hearing (September 20, 2002), at 21. 100 JIS, written statement presented to joint SSCI/HPSCI hearing (September 20, 2002), at 13 (quoting e-mail message sent on August 29, 2001, from FBI Headquarters to FBI Special Agent in New York City). 101 JIS, written statement presented to joint SSCI/HPSCI hearing (September 20, 2002), at 20. 82 _______________ 102 FBI Agent from New York Field Office, testimony before joint SSCI/HPCSI hearing (September 20, 2002), available from Federal News Service. 103 Michael Rolince, written statement presented to joint SSCI/HPSCI hearing (September 20, 2002), at 4. 83 FBI Headquarters apparently barred the pursuit of a criminal warrant on the theory that any professed interest in criminal prosecution would jeopardize any chances of a FISA -a reasonable assumption given OIPR' s longstanding approach to such matters. [105] When the FBI agents actually contacted Headquarters about obtaining such a FISA order, however, they were given inexcusably confused and inaccurate information from attorneys at the FBI's National Security Law Unit (NSLU). FBI attorneys at Headquarters told Minneapolis that in order to get a FISA, they had to produce evidence showing that Moussaoui was affiliated with one or more groups on the State Department's official list of "terrorist" organizations. This legal advice was patently false and has no basis either in the FISA statute or in DOJ policy or guidelines. _______________ 104 JIS, written statement presented to joint SSCI/HPSCI hearing (September 24,2002), at 17-18. 105 During the Wen-Ho Lee affair, for instance, OIPR chief counsel francis Fragos Townsend had rebuffed FBI attempts to get a FISA order in early 1999 because the FBI was by that point considering pursuing a criminal search warrant against Lee. According to contemporaneous notes taken by FBI officials, Townsend rejected the FBI's efforts to renew FISA discussions with the dismissal that the case had become "way too criminal." See Thompson & Lieberman, supra, at 13. 84 Nevertheless, this bad advice led the Minneapolis agents on a legal wild goose chase for nearly three weeks, as they tried to find enough information connecting Chechen terrorist organizations -with whom Moussaoui had some ties, but who were not on the list -to Al-Qa'ida. [106] (3) Developments Since September 11 _______________ 106 JIS, written statement presented to joint SSCI/HPSCI hearing (September 24, 2002), at 19-20; see also Minneapolis FBI Agent, testimony before joint SSCI/HPSCI hearing (September 24, 2002), available from FDCH Political Transcripts (September 24,2002). 85 Since the September 11 attacks, both Congress and the Justice Department have taken important steps to revise the law and policies restricting law enforcement/intelligence coordination. The myth that FISA prohibited essentially all coordination between intelligence and law enforcement agents, while untrue even under pre-September 11 law, was addressed by Congress' passage of the USA PATRIOT Act of 2001 (Public Law 107-56), which took aim directly at the "primary purpose" test long assumed to be part of FISA case law. Whereas FISA for years had provided that "the purpose" of FISA surveillance had to be intelligence collection, after President Bush's signature of the USA PATRIOT Act, FISA said merely that orders are to be granted where this is "a significant purpose." [107] Thereafter, no inference of a "primary" purpose test should have been permitted, much less an "exclusive purpose" standard. After October 26, 2001, the FISA statute permitted surveillance and physical searches even for undertakings that were primarily criminal --provided only that intelligence collection was not an insignificant reason for the undertaking. It took over a year, however, for the USA PATRIOT Act changes to penetrate the U.S. Government's entrenched "no coordination" bureaucratic culture. In November 2001, immediately after Congress had enacted the "significant purpose" change to FISA, the Foreign Intelligence Surveillance Court broke with previous precedent and for the first time required DOJ and the FBI to follow the Attorney General's July 1995 guidelines on law enforcement- intelligence coordination,108 Although court approval was necessary under the FISA statute for the establishment of FISA "minimization rules" for handling information on U.S. citizens or lawful permanent residents, the FISC had never before seen fit to enforce specific general rules _______________ 107 Public Law 107-56 (October 26, 2001), at § 2 18. 108 See Court of Review Opinion, supra, at 21-22 (recounting history of case). 86 With its November 2001 ruling imposing the July 1995 guidelines upon the post-September 11 Justice Department, the FISC necessarily established the precedent that any changes to the coordination guidelines required court approval. Things got still more strange after the Attorney General duly submitted draft guidelines in March 2002, seeking the FISC's approval to implement the changes written into law by the USA PATRIOT Act. These new proposals embodied the "significant purpose" changes, and permitted extensive information- sharing and coordination between intelligence and law enforcement elements within the Department and the FBI -to the point that "all DOJ component are free to offer advice and make recommendations, both strategic and tactical, about the conduct and goals of the investigations." [109] The FISC, however, rejected the Attorney General's proposed changes, declaring in a May l7, 2002 opinion that they went too far. Wholly ignoring the USA PATRIOT Act's changes to the FISA "purpose test," this opinion explicitly endorsed what the FISC itself described as "the Wall" between law enforcement and intelligence -finding support for this not _______________ 109 "Intelligence Sharing Procedures for Foreign Intelligence and Foreign Counterintelligence Investigations Conducted by the FBI," memorandum from Attorney General John Ashcroft to FBI Director et at. (March 6, 2002), at 2. 87 in the crucial "purpose test" modified by Congress but in the statute's substantively unrelated provisions on "minimization rules" to govern the handling of information specifically about U.S. persons. [110] _______________ 110 See Foreign Intelligence Surveillance Court, In re: All Matters Submitted to the Foreign Intelligence Surveillance Court, Memorandum Opinion (as Corrected and Amended), multiple docket numbers (May 17,2002) [hereinafter "FISC Opinion"], at 18 & 22-27. 88 It was not until November 2002 that the FISA Court of Review -the never-before-used appellate body created by the statute -issued an opinion overruling the FISC's decision. Thanks to the Court of Review holding, the law thus stands today where Congress intended it to stand on October 26, 200 I: there is no restriction upon coordination between law enforcement and intelligence organs in connection with FISA surveillance or physical searches, and such activity can lawfully be undertaken even if primarily done with prosecutorial intent, provided that a "significant" intelligence purpose remains. [111] Given its erratic and reflexive behavior after September 11, how faithfully the FISC actually applies this standard to individual FISA requests remains to be seen. [112] Provided that the FBI can persuade its NSLU attorneys to learn FISA law _______________ 111 Ironically, the law stands here today even though the Court of Review held that before the USA PATRIOT Act there really was never any "dichotomy" between a FISA order's "intelligence" and "criminal" purpose in the first place. As the Court of Review explained the law, under FISA as originally written, even a wholly prosecutorial purpose should have been acceptable -insofar as putting spies and terrorist behind bars and/or using the threat of prosecution to "squeeze" them for information was an entirely legitimate "intelligence" purpose. According to the Court of Review, the USA PATRIOT Act, by purporting to loosen a "purpose test" that Congress wrongly assumed to exist, actually imposed a balancing test between "criminal" and "law enforcement" purposes for the first time. The bottom line, however, is that FISA law today actually says what Congress intended it to say after the passage of the USA PATRIOT Act. 112 There is some room for concern that the FISC's legal instincts have become too congruent with the "Wall" mentality. As the Court of Review acidly suggested in a barbed footnote to its November 2002 opinion, some of the FISC's eagerness to defend mistaken concepts of the "Wall" may have stemmed from the fact that an OIPR attorney closely associated with "Wall" thinking recently took up a position as FISA clerk to the federal district judges serving on the FISC. See Court of Review Opinion, supra, at 20 n.15. The attorney in question is Allan Kornblum, who achieved a degree of notoriety in FISA circles as the DOJ lawyer perhaps most personally responsible for the Department's much-criticized interpretation of "probable cause" under the FISA statute during the Wen-Ho Lee affair. See Fred Thompson & Joseph Lieberman, transcript of press conference (August 5, 1999) (available from Federal News Service), at 2-3 (remarks of Senator Thompson describing OIPR's "highly restrictive view of probable cause" as "a faulty interpretation") & 4 (remarks of Senator Lieberman, noting that he "disagreed" with OIPR's 'Judgment call"); Bellows Report, supra, at 482 (concluding that the Wen-Ho Lee FISA application indeed "established probable cause" and "should have resulted in the submission of a FISA application, and the issuance of a FISA order"). 89 better -- and provided that Attorney General Ashcroft succeeds in replacing the "Wall" culture with new attitudes devoted to effective coordination -there is reason for optimism that coordination- related problems of the sort seen in the al-Mihdhar, al-Hazmi, and Moussaoui cases will not recur. (4) Intelligence-Law Enforcement Information-Sharing In addition to problems stemming from presumed legal obstacles to passing crucial information from the Intelligence Community to law enforcement, the events of September 11 highlighted the problems of passing information in the other direction: from law enforcement to the Intelligence Community. Throughout the 1990s, for instance, the Justice Department, the FBI, and the offices of various U.S. Attorneys around the country accumulated a great deal of information about Al-Qa'ida and other terrorist networks operating within the United States. This information was derived from law enforcement investigations into such events as the 1990 assassination of Rabbi Meier Kahane, the 1993 World Trade Center bombing, the abortive plot to blow up various harbors and tunnels in New York City, the 1996 Khobar Towers attack, the 1998 U.S. embassy bombings, Al-Qa'ida's "Millennium Plot," and the attack on the USS Cole in October 2000. Most of this information, however, remained locked away in law enforcement evidence rooms, unknown to and unstudied by counterterrorism (CT) analysts within the Intelligence Community. That this information possessed potentially huge relevance to the Intelligence Community's CT work is beyond question. Indeed, until the late 1990s, at least, U .S. law enforcement offices probably had more information on Al-Qa'ida -its key members operating in the West, its organizational structure, and its methods of operation -than the CIA's CTC. Two 90 CT specialists from the Clinton Administration's National Security Council later described court records from 1990s terrorism trials as being "a treasure trove" that contained "information so crucial that we were amazed that the relevant agencies did not inform us of it while we were at the NSC." [113] A small office within the Office of Naval Intelligence, for instance, began a whole new field of inquiry into terrorist maritime logistics networks in the summer of 2001 on the basis of a single FBI interview form (a "Form 302") and the public court transcripts from the 1998 embassy bombings trials in New York, long before anyone had even tried systematically to "mine" law enforcement records for intelligence-related information. [114] That most such law enforcement information remained off limits to intelligence analysts before September 11 is terribly, and perhaps tragically, unfortunate. [115] _______________ 113 Daniel Benjamin & Steven Simon, The Age of Sacred Terror (New York: Random House, 2002), at xii-xiii. 114 This office, known as the Maritime Target Development Division (NFTDD), has since been elevated to the status of full-fledged Department office within the ONI organization. 115 The degree to which law enforcement information remained so firmly embedded within records unsearched by intelligence analysts can perhaps be seen in the failure of our own JIS to identify within Intelligence Community records what is perhaps the earliest known reference by an Islamic fundamentalist to a plot to attack buildings such as the World Trade Center towers. After U.S. law 91 Even apart from coordination-related concerns about the "Wall" discussed previously, the sharing of law enforcement information with the IC was fiercely resisted by law enforcement officials. Some of this was unavoidable, insofar as information protected by Rule 6(e) of the Federal Rules of Criminal Procedure -that is, grand jury information -really could not lawfully be passed to intelligence analysts. Like the mythology of the coordination "Wall" in the years before September 11 the "Rule 6(e) excuse" acquired an unwarranted mythological dimension of its own. _______________ enforcement authorities captured El-Sayyid Nosair after his assassination of Rabbi Meier Kahane in 1990, they found in one of his notebooks a lyrical description of the need to destroy "the enemies of Allah...by means of destroying exploding [sic], the structure of their civilized pillars such as the touristic infrastructure which they are proud of an their highh world buildings which they are proud of. ..." See Benjamin & Simon, supra, at 6. More than a decade after this evidence was seized, the JIS' searches of Intelligence Community databases for information that might have presaged the September 11 attacks has apparently produced not a single reference to this pregnant early warning signal by an Islamic fundamentalist now long known to have been linked to Sheikh Omar Ahmad Abdel Rahman and the terrorist cell responsible for the 1993 World Trade Center attacks and involved in plotting to blow up multiple tunnels and monuments in New York City thereafter. 92 Rule 6 e) restricts the disclosure of information actually revealed in the confidence of the grand jury chamber. This prohibition, however, does not actually reach other information in the possession of law enforcement entities, such as FBI "Form 302" witness interview records, documents obtained in response to search warrants, "lead" information acquired from sources, and so forth. Even during the most secretive grand jury investigation, in other words, there is a huge amount of information that can be shared with intelligence officials without running afoul of Rule 6(e). (Such information may be highly sensitive, of course, but protecting sensitive sources and methods is hardly something with which the Intelligence Community lacks experience.) Sadly, however, Rule 6(e) increasingly came to be used simply as an excuse for not sharing information -leaving vital collections of shareable information about international terrorist groups off-limits to IC intelligence analysts. For years, it was routine FBI and DOJ practice to respond to virtually any Intelligence Community requests for information with the answer that "Rule 6(e)" prevented any response. As two frustrated NSC veterans describe it, "Rule 6E [ sic] is much more than a procedural matter: it is the bulwark of an institutional culture, and as Justice Department lawyers readily admit, it is used by the Bureau far more often than it should be. It is one of the Bureau's foremost tools for maintaining the independence that the FBI views as its birthright." [116] _______________ 116 Benjamin & Simon, supra, at 227. 93 Indeed, by this account, NSC officials met with Attorney General Reno in 1993 about the obstacles this dynamic presented for counterterrorism analysis. "Although the issue was revisited many times over the next four years," nothing happened: "The FBI balked at the proposal, and [Attorney General] Reno, although she was [FBI Director] Louis Freeh's boss, could never bring him around." [117] _______________ 117 Id. 94 After the surprise attacks on September 11, the new Justice Department of Attorney General Ashcroft worked with Congress to put the Rule 6(e) issue to rest. Apparently working from the assumption that it would be easier to change the law itself than to fix a parochial and dysfunctional institutional culture that used the Rule as an excuse to prevent all information- sharing, they determined simply to change Rule 6(e) to permit information-sharing with intelligence officials. This change was incorporated into the USA PATRIOT Act. [118] As the law stands today, even intelligence-related information that derives exclusively from revelations within the confines of the grand jury chamber may freely be shared with the Intelligence Community. The USA PATRIOT Act, in fact, permits sharing criminal wiretapping information [119] and more generally authorizes information-sharing "[n]otwithstanding any other provision of law" [120] -thus sweeping within its ambit not only Rule 6(e) but also 18 U .S.C. § 2517 and any other rule that might providing an excuse to hoard information. Indeed, Title IX of the Act included a provision that, subject to the Attorney General's establishment of procedures and standards for such sharing, requires law enforcement organs to pass information with intelligence significance to the Intelligence Community. [121] (5) Recommendations _______________ 118 P.L. 107-56, at § 203(a). 119 Id. at § 203(b ). 120 Id. at § 203(d). 121 Id. at § 905. 95 Organizational cultures are notoriously hard to change, and it remains to be seen how well the legal and policy changes of the post-September 11 period will become part of the institutional fabric of the Justice Department and the FBI. In the interest of ensuring that sustained progress is made in this regard, Congress probably made a mistake in subjecting the broad "notwithstanding any other provision of law" sharing provision and the "significant purpose" FISA amendment in the USA PATRIOT Act to that bill's "sunset" clause -which will cause these important provisions to expire in December 31, 2005. [122] If it wishes to see these improvements in information-sharing and law enforcement-intelligence coordination succeed in the long term, the 108th Congress should consider exempting them from the "sunset" provision. [123] The 108th Congress should also reintroduce and promptly approve the amendment to FISA proposed in June 2002 by Senators Kyl and Schumer. This legislation -which was introduced during the 107th Congress as S.2586 -would modify the "foreign power" definition in the FlSA statute to permit the issuance of surveillance or search orders against non-U.S. _______________ 122 See id at § 224(a) (providing for expiration of certain provisions). 123 Congress should also closely monitor the Intelligence Community's use of grand jury and other protected law enforcement information. Such information is quite properly subject to oversight by federal judges while it remains within law enforcement channels. When passed to the Intelligence Community, however, it leaves the courts' control and oversight. Since the Department of Justice has taken the position that the intelligence oversight committees of Congress should not be permitted to see any grand jury information, this means that there is no oversight of what use is made of grand jury material passed to the Intelligence Community. The Senate Select Committee on Intelligence tried to provide for such oversight in its FY03 authorization bill, see S.2506 (107h Cong., 2d Sess.), at § 306, but this provision was removed in conference at the insistence of the Administration. The 108th Congress would do well to consider the civil liberties implications of passing grand jury information to the Intelligence Community without effective oversight -as well as the implications for the oversight prerogatives of Congress more generally, as such information is incorporated over time into intelligence products denied to the committees because they contain such material. 96 Specifically, as discussed in a public hearing of the SSCI during the summer of 2002, the FISA statute is built around a 1970s-era conception of the "international terrorist group." When FISA was enacted in 1978, the typical terrorist group was a Marxist-style organization with a fairly rigid, authoritarian organizational structure and chain of command (e.g., Baader-Meinhoff gang, the Red Brigades, the PLO, the Red Army Faction, the PFLP, and so forth). Terrorist organizations today, however, have increasingly "flat" or "networked" organizational structures, tending to be decentralized and comparatively resistant to institutional "decapitation." Moreover, as the FBI's Deputy General Counsel has noted, terrorism today is far more indiscriminate and more focused simply upon causing mass casualties than were terrorist groups at the time FISA was adopted. [124] Whereas terrorist groups in the 1970s tended to focus upon achieving specific political goals or upon targeting specific individuals, often using the threat of violence as much as violence itself (e.g., in hostage-taking situations), modern terrorist groups are increasingly interested simply in annihilating their perceived enemies on as grand as scale as technologically feasible. Modern terrorists, therefore, are both more lethal and harder to tie to formal "group" structures than the terrorists Congress had in mind when enacting the FISA statute's current _______________ 124 Marion E. ("Spike") Bowman, written statement submitted to SSCI hearing (July 31, 2002), at 1. 97 definition of a terrorist "foreign power." Senators Kyl and Schumer have proposed to permit FISA orders to issue against even a single individual who appears to be involved in terrorism, provided that such a person is not a U.S. person and that his terrorism has an international nexus. (The proposal, therefore, would have no impact upon American citizens or lawful permanent residents, and would not affect investigations into domestic terrorist groups.) The Kyl/Schumer legislation is supported by the Administration, and was favorably received by the SSCI when discussed at our July 2002 hearing. It deserves the support of the 108th Congress. IV. Domestic Intelligence The findings of our Joint Inquiry Staff have also highlighted grave and continuing problems with the Federal Bureau of Investigation in connection with its national security work. Though still renowned for its criminal investigative competence, the FBI has shown a disturbing pattern of collapse and dysfunction in its counterintelligence and counterterrorism functions. These recurring problems have, in turn, led many observers -and Members of Congress - increasingly to lose faith in the Bureau's ability to meet the national security challenges it faces, despite a series of internal reorganizations over the past several years that have failed to rectify the situation. In light of the FBI's dismal recent history of disorganization and institutional incompetence in its national security work, many of us in Congress have begun to consider whether it might better serve the interests of the American people to separate the counterintelligence and counterterrorism functions of the Bureau into an entirely separate organization -one that would be free of the structural, organizational, and cultural constraints 98 that have greatly handicapped the FBI's ability to conduct the domestic intelligence work our country depends upon it to perform. A. Tyranny of the Casefile Fundamentally, the FBI is a law enforcement organization: its agents are trained and acculturated, rewarded and promoted within an institutional culture the primary purpose of which is the prosecution of criminals. Within the Bureau, information is stored, retrieved, and simply understood principally through the conceptual prism of a "case" -a discrete bundle of information the fundamental purpose of which is to prove elements of crimes against specific potential defendants in a court of law. The FBI's reification of "the case" pervades the entire organization, and is reflected at every level and in every area: in the autonomous, decentralized authority and traditions of the Field Offices; in the priorities and preference given in individual career paths, in resource allocation, and within the Bureau's status hierarchy to criminal investigative work and post hoc investigations as opposed to long-term analysis; in the lack of understanding of and concern with modern information management technologies and processes; and in deeply-entrenched individual mind sets that prize the production of evidence-supported narratives of defendant wrongdoing over the drawing of probabilistic inferences based upon incomplete and fragmentary information in order to support decision-making. At its core, the FBI has always been -and remains -a "casefile"' organization wedded inextricably to a "casefile" mentality. This is not a bad thing: the Bureau is often, and generally accurately, described as the "world's premier law enforcement organization." It does its 99 traditional job quite well. But the tyranny of the case file presents a fundamental obstacle to national security work, for the simple reason that law enforcement orgar1izations handle information, reach conclusions, and ultimately just think differently than intelligence organizations. Intelligence analysts would doubtless make poor policemen, and it has become very clear that policemen make poor intelligence analysts. Particularly against shadowy transnational targets such as international terrorist organizations that lack easily-identifiable geographic loci, organizational structures, behavioral patterns, or other information "signatures," intelligence collection and analysis requires an approach to acquiring, managing, and understanding information quite different from that which prevails in the law enforcement community. Intelligence analysts tend to reach conclusions based upon disparate fragments of data derived from widely-distributed sources and assembled into a probabilistic "mosaic" of information. They seek to distinguish useful "signals" from a bewildering universe of background "noise" and make determinations upon the basis of vague pattern recognition, inferences (including negative inferences ), context, and history. For them, information exists to be cross-correlated -- evaluated, and continually subjected to re-evaluation, in light of the total context of what is available to the organization as a whole. Intelligence analysts think in degrees of possibility and probability, as opposed to categories of admissibility and degrees of contribution to the ultimate criminal-investigative aim of proof "beyond a reasonable doubt." The "analyst" mindset is thus radically different than that cultivated by training and acculturation within a law enforcement environment, which necessarily focuses upon building carefully-managed bundles of information about specific individuals or organizations for specific purposes. Far from embracing probabilistic inference, "knowledge" in a law enforcement 100 context aspires -in its ideal form at least -not only to certainty but also to admissibility, the two essential conceptual elements of being able to prove someone guilty beyond a reasonable doubt in a court of law. Within such a paradigm, information exists to be segregated and ultimately employed under carefully-managed circumstances for the single specific purpose for which it was gathered. Naturally, these are only ideal types. In reality, intelligence knowledge management is more Balkanized and disaggregated than the model suggests, and law enforcement information- holdings more interconnected. Nevertheless, the basic mindsets do exist, and the FBI's conceptual and institutional baggage as a law enforcement "casefile" organization has made it very hard -some might conclude impossible -for the Bureau to mature as a competent player in the national security field. (1) Resistance to Intelligence Analysis (a) Impact of "Casefile " Mentality on pre-9/11 Analysis The Joint Inquiry Staff (JIS) has outlined several examples of such problems within the FBI in the period leading up to the September 11 terrorist attacks. The FBI, for instance, knew that convicted terrorist Abdul Hakim Murad had been involved in an extremist Islamic plot to blow up 12 U.S.- owned airliners over the Pacific Ocean and crash an aircraft in to CIA Headquarters. Murad was not charged with a crime in connection with the CIA crash plot, apparently because it was merely at the "discussion" stage when he was apprehended. Because the CIA crash plot did not appear in the indictment, however, the FBI effectively forgot all about it. 101 As the JIS has recounted, the FBI's case file for the Murad case essentially ignored the air crash plot, and FBI agents interviewed as part of our inquiry confirmed that Murad's only significance to them was in connection specifically with the crimes for which he was charged: "the other aspects of the plot were not part of the criminal case and therefore not considered relevant." [125] Convinced that the only information that really matters was information directly related to the criminal investigation at hand, the FBI thus ignored this early warning sign that terrorists had begun planning to crash aircraft into symbols of U .S. power. Thus, rather than being stored in a form that would permit this information to be assessed and re-assessed in light of a much broader universe of information about terrorist plans and intentions over time, the Murad data-point was simply forgotten. Like all the other tidbits of information that might have alerted a sophisticated analyst to terrorists' interest in using airplanes to attack building targets in the United States, [126] the episode disappeared into the depths of an old case file and slipped out of the FBI's usable institutional memory. The handling of information about the Murad air-crash plot and the flight-school information is, unfortunately, illustrative of the FBI's more general problems in "connecting the dots" in ways that good intelligence analysts are expected to do. So pervasive was the FBI's _______________ 125 JIS, written statement presented to SSCI/HPSCI joint hearing (September 18, 2002), at 11- 2. 126 For a summary of intelligence holdings from all intelligence agencies -related to the potential use of aircraft as weapons, see JIS, written statement presented to SSCI/HPSCI joint hearing (September 18, 2002), at 26-28. 102 As the JIS has recounted, the FBI for years has tracked terrorism information in ways that essentially prohibit broad, cross-cutting analytical assessment. If it identified a suspected terrorist in connection with a Hamas investigation, for example, the FBl would label him as a Hamas terrorist and keep information on him in a separate "Hamas" file that would be easily accessible to and routinely used only by "Hamas"-focused FBI investigators and analysts. The Usama bin Laden unit would be unlikely to know about the FBI's interest in that individual, and no one thought to establish a system for cross-referencing terrorist connections between the carefully-segregated institutional files. 127 This approach is entirely unsuited to virtually any long-term strategic analytical work, and is patently inappropriate to counterterrorism analysis against the loose, interconnected and overlapping networks of Islamic extremists that make up the modern jihadist movement. The FBI's decentralized organizational structure contributed to these problems, in that it left information-holdings fragmented into largely independent fiefdoms controlled by the various field offices. The New York Field Office for years played the principal counterterrorism role within the FBI simply because it had the misfortune of hosting the 1993 World Trade Center attacks, thereby acquiring a degree of experience with Islamic fundamentalist terror groups. Even so, this work focused upon terrorism cases -not strategic analysis -and the FBI's decentralized structure left other field offices in the dark. As the JIS concluded, there was even great "variation in the degree to which FBI-led Joint Terrorism Task Forces (JTTFs) prioritized _______________ 127 JIS, written statement presented to SSCI/HPSCI joint hearing (September 24,2002), at 14. 103 The culturally and organizationally fragmented nature of FBI information-holdings apparently even extended to the handling of knowledge within individual FBI offices themselves. In August 2001, for example, as FBI agents first sought to establish whether Zacarias Moussaoui was a terrorist, FBI agents from the local field office visited the flight school in Norman, Oklahoma, where Moussaoui had been taking flying lessons. The FBI agents were not aware that their own field office had become concerned about that same flight school two years before -because the personal pilot of Usama bin Laden (UBL) had been training there. [129] The earlier episode in Norman, had it been remembered, may not have been much use in obtaining criminal probable cause to search Moussaoui's personal effects, but being aware of such disparate and potentially connected bits of information is at the core of all-source intelligence analysis "fusion." Such fusion, apparently, was quite beyond the capabilities of the FBI. Despite all the FBI knew about terrorist interest in U.S. flight schools and in the potential use of aircraft as weapons, for example, it had declared in December 2000 in a joint report with _______________ 128 JIS, written statement presented to SSCI/HPSCljoint hearing (September 18, 2002), at 18. 129 JIS, written statement presented to SSCI/HPSCI joint hearing (September 24, 2002), at 19. 104 the FAA that its "investigations" did not suggest any "evidence" of terrorist plans to target U.S. domestic civil aviation. [130] _______________ 130 JIS, written statement presented to SSCI/HPSCI joint hearing (September 18, 2002), at 29. 105 By the summer of 2001, the FBI knew from the Phoenix EC about UBL-associated individuals training at U.S. flight schools, that UBL's organization also used the Norman flight school Moussaoui attended, about past Libyan efforts to send terrorists through aviation training in the U.S., and that Murad had planned to attack the CIA with an aircraft. As a result, the FBI was the U.S. Government agency probably best positioned in the late summer of 2001 to "connect the dots" with an analytical assessment warning of terrorist interest in using U.S.- trained pilots to crash aircraft into symbolic American buildings. It was also the agency best positioned to connect such analyses with Moussaoui's activity at Norman, or the presence of known Al-Qa'ida terrorists al- Mihdhar and al-Hazmi at flight school in San Diego. Follow-up investigation of the names suggested in the Phoenix EC, which might have occurred had the FBI assembled enough of the information in its possession to understand the potential threat posed by terrorists at U.S. flight schools, might also conceivably have led the Bureau to Hani Hanjour - one of the September 11 hijackers who trained at flight school in Arizona with one of the individuals identified in the EC as having links to Al-Qa 'ida. [131] The Bureau was unable to connect these "dots," however, in large part because "[t]he FBI's focus at the time Moussaoui was taken into custody appears . .. to have been almost entirely on investigating specific crimes and not on identifying linkages between separate investigations or on sharing information with other U.S. Government agencies with counterterrorist responsibilities." [132] _______________ 131 JIS, written statement presented to SSCI/HPSCI joint hearing (Septernber 24, 2002), at 10. 132 JIS, written statement presented to SSCI/HPSCI joint hearing (Septernber 24, 2002), at 19. 106 Approaching issues of intelligence fusion with a law enforcement "casefile" mindset and organizational structure left the FBI unprepared for the national security challenges of modern terrorism. Moreover, because the FBI is fundamentally a "casefile" organization, it has been very poor at disseminating any intelligence information it might happen to acquire or analytical products it might happen to produce. The Bureau disseminated extraordinarily few intelligence reports before September 11, 2001, even with respect to what is arguably its most unique and powerful domestic intelligence-collection tool: collection under the Foreign Intelligence Surveillance Act (FISA). [133] The FBI's problems in counterterrorist intelligence before September 11 were thus threefold: the Bureau did not know what information it possessed, it did not approach this information with an intelligence analysis mindset, and it too often neglected to inform other agencies of what it did know or believe. Even when the FBI did see fit to try to notify the rest of the Intelligence Community about the potential threat represented by the Moussaoui situation not long before the September II attacks, it was unable to place the Moussaoui case in the analytical context that would have made this information useful to analysts and intelligence consumers. On September 4, the FBI's Radical Fundamentalist Unit (RFU) sent out a teletype that did no more than merely recount the investigative steps the FBI was undertaking in its Moussaoui investigation. The author _______________ 107 (b) Analysis versus 'Investigations' (i) Disinterest in Analysis _______________ 134 JIS, written statement presented to SSCI/HPSCI joint hearing (September 24, 2002), at 18. 135 JIS, written statement presented to SSCI/HPSCI joint hearing (September 24, 2002), at 21. 108 Fundamentally, the FBI consistently prized investigations and operations in its national security work and neglected long-term analysis of the sort that might have permitted agents to understand more about the pre-September 11 threat of terrorists using civil aviation. According to FBI Counterterrorism Division chief Dale Watson, counterterrorism work was "a relatively low-priority program" at the Bureau for many years. He has testified that it received more emphasis beginning in late 1998, but even this new emphasis grew out of the FBI's investigations into the 1996 Khobar Towers bombing and the 1998 East African embassy attacks. [136] This emphasis does not seem to have changed the FBI's disinterest in long-term strategic analytical work in support of the Bureau's national security responsibilities. As the Joint Inquiry Staff put it, "At the FBI, our review found that, prior to September 11, 2001, support for ongoing investigations and operations was favored, in terms of allocating resources, over long-term, strategic analysis. We were told, during the course of our FBI interviews, that prevention occurs in the operational units, not through strategic analysis, and that, prior to September 11, the FBI had insufficient resources to do both." [137] These problems were, in large part, an outgrowth of the "casefile" mentality that prevailed at the Bureau. According to the JIS, _______________ 136 Dale Watson, written statement presented to SSCI/HPSCI joint hearing (September 26, 2002), at 3. 137 JIS, written statement presented to SSCI/HPSCI joint hearing (Septernber 18, 2002), at 28- 9. 109 "the case-driven, law enforcement approach, while important and extremely productive in terms of the FBI's traditional mission, does not generally 'incentive' attention to big-picture, preventive analysis and strategy. This is particularly true when there is no direct and immediate impact on an ongoing criminal prosecution." [138] Counterterrorism (CT) and counterintelligence (CI) work were for years considered less prestigious career fields for FBI agents. CT and CI investigations could last for years and often produced no defendants at all, and analytic work almost never produced easily-quantifiable career trophies. Particularly after the collapse of the Soviet Empire, managers de-emphasized the FBI's CI mission, assignments to national security billets became less and less attractive within an organization focused upon criminal cases. The reluctance of agents to "homestead" in national security work -- instead of working CT and CI issues merely on a rotational basis, which was much more common -helped preclude any possibility of breaking the hegemony of the "casefile" mindset within the organization's national security components. On top of a general lack of emphasis upon national security work within the organization as a whole, the FBI suffered in particular from a positive aversion to long-term strategic analysis of the sort routinely expected of intelligence agencies. CT investigations, after all, were at least _______________ 138 JIS, written statement presented to SSCI/HPSCI joint hearing (September 24, 2002), at 2-3. 110 investigations -and bore at least some resemblance to ordinary law enforcement work. Analysis, however, was apparently anathema. Even as the FBI received ever-greater amounts of CT money and personnel during the late 1990s, therefore, it showed little interest in devoting more effort to strategic intelligence or to analytical efforts aimed at Al-Qa'ida cells in the United States. According to the JIS, the FBI's disinterest in analysis work led managers systematically to reassign good analysts from doing strategic analysis to supporting operational (i.e., investigative) units. JIS investigators were "told that the FBI's al-Qa'ida-related analytic expertise had been 'gutted' by transfers to operational units and that, as a result, the FBI's [international terrorism] analytic unit had only one individual working on al-Qa'ida at the time of the September 11 attacks." [139] Indeed, the FBI seems to have regarded "intelligence analysts" as little more than a pool of disposable personnel assets to be redeployed as needed to other responsibilities -which perhaps explains the Bureau's longstanding failure to insist upon clear standards for adjudging intelligence "analyst" qualifications in the first place. [140] _______________ 139 JIS, written statement presented to SSCI/HPSCI joint hearing (September 18, 2002), at 28-29; see also id. at 18. 140 The SSCI became so concerned about the fuzziness of these standards that it enacted specific provisions in the Fiscal Year 2003 Intelligence Authorization Bill (Public Law 107-306) to encourage the Director of Central Intelligence to promulgate Community -wide standards for individuals performing intelligence functions. As the Senate Report put it, "the Committee has become concerned that, particularly in the area of analysis, elements of the Intelligence Community are denominating 111 _______________ individuals as 'analysts' or 'intelligence analysts' without adherence to a meaningful common definition of that word." U.S. Senate Select Committee on Intelligence, S.Rep. 107-149, Report to Accompany S 2506, 107th Cong., 2d Sess. (May 13, 2002), at 12. 112 (ii) Problems Illustrated by the Phoenix EC According to the JIS, the FBI's handling of the Phoenix EC was "symptomatic of a focus on short- term operational priorities, often at the expense of long-term, strategic analysis. ... [W]e have found that the FBI's ability to handle strategic analytic products, such as the Phoenix EC, was, at best, limited prior to September 11, 2001." [143] "The manner in which the Phoenix EC was handled demonstrated _______________ 141 Federal Bureau of Investigation, press release (November 19, 1999), at 1-2. 142 Id. at 1. 143 JIS, written statement presented to SSCI/HPSCI joint hearing (September 24, 2002), at 2. 113 how strategic analysis took a back seat to operational priorities prior to September 11. * * * Even the analytic unit responsible for strategic analysis was largely producing tactical products to satisfy the operational section. In fact there was no requirement [ at the time] to handle projects with nationwide impact, such as Phoenix, any different[ly] than any other project." [144] _______________ 144 JIS, written statement presented to SSCI/HPSCI joint hearing (September 24, 2002), at 8. 114 Due to "[i]nadequate information sharing within the FBI, particularly between the operational and analytic units," [145] the recipients of the Phoenix EC lacked any knowledge of information - already within the FBI's possession, but lost or ignored in a myriad of disaggregated casefiles - that would have put the EC into a broader context of longstanding concern with terrorism threats related to Middle Eastern flight school students training in the United States. [146] As it was, even those FBI "Intelligence Operations Specialists" (IOSs) -the name itself reveals the Bureau's preference for "operations" over "analysis" -who did see the Phoenix EC decided against sending it to the FBI's lone analytic unit concerned with terrorism. [147] Nor is it clear that it would have done much good to pass the EC to that unit, as it had been effectively crippled by personnel poaching and bureaucratic infighting. "[T]he capability to conduct strategic analysis on al-Qa'ida was limited because five of the unit's analysts had transferred into operational units. The Joint Inquiry Staff has been told that every time a competent new analyst arrived, the UBLU or RFU would either try to recruit them as IOS or would refuse to share information. This allowed the ULBU and RFU to control the information flow. The end result, unfortunately, is that there is no _______________ 145 JIS, written statement presented to SSCI/HPSCI joint hearing (September 24, 2002), at 2. 146 For a summary of information relating to this context, see JIS, written statement presented to SSCI/HPSCI joint hearing (September 24,2002), at 3. 147 JIS, written statement presented to SSCI/HPSCI joint hearing (September 24, 2002), at 7. 115 one left whose role is to perform strategic analysis." [148] Against this deep background of analytical and organizational dysfunction and mismanagement in the national security arena, it is hard to imagine that real CT and CI analytical reform within the FBI is really possible. (2) The FBI's Inability to Know what it Knows (a) Technological Dysfunction In addition to these cultural and organizational problems -or perhaps in large part because of them - he FBI has never taken information technology (IT) very seriously, and has found itself left with an entirely obsolete IT infrastructure that is wholly inadequate to the FBI's current operational needs, much less to the task of supporting sophisticated all-source intelligence fusion and analysis. Fundamentally, the FBI's IT system has changed surprisingly little since the late 1980s or early 1990s, a decade during which the rest of the computer world moved at extraordinary speed. _______________ 148 JIS, written statement presented to SSCI/HPSCI joint hearing (September 24, 2002), at 8. 116 The handling of the Phoenix EC demonstrates some of these technological deficiencies, highlighting the "limitations in the electronic dissemination system" that kept FBI supervisors from seeing the document even when it was addressed to them. [149] According to the JIS, the problems with the Phoenix EC "are consistent with the complaints we have repeatedly heard throughout this inquiry about the FBI's technology problems." [150] The Bureau's electronic system for disseminating messages such as the Phoenix EC was itself "considered so unreliable that many FBI personnel, both at the field offices and at FBI headquarters, use e-mail instead." [151] Since most offices at the FBI lack a classified e-mail capability, this represents a fundamental obstacle to information-sharing of even the most rudimentary sort. Moreover, as users have fled the dysfunctional case-tracking system, the Bureau appears to have lost any ability to track leads entered into it. The JIS, for instance, was told that "there are 68,000 outstanding and unassigned leads assigned to the counterterrorism division dating back to 1995." At the time of our Inquiry, the FBI had no idea whether any of these leads had been assigned and dealt with outside the electronic system. [152] This disastrous information-management system compares unfavorably with the systems developed elsewhere in the Intelligence Community for sharing data and providing analysts with the information they need to conduct intelligence "fusion." In this respect, it is useful to 149 JIS, written statement presented to SSCI/HPSCI joint hearing (September 24, 2002), at 9. 150 JIS, written statement presented to SSCI/HPSCI joint hearing (September 24, 2002), at 2. 151 JIS, written statement presented to SSCI/HPSCI joint hearing (September 24, 2002), at 9. 152 JIS, written statement presented to SSCI/HPSCI joint hearing (September 24, 2002), at 9. 117 compare the IT capabilities of the CIA with those at FBI. "At CIA, the DCI's CTC maintains a massive database of terrorist related information going back at least two decades. Within this database are analytic papers, messages between CIA headquarters and CIA stations and bases around the world, signals intelligence reports from the National Security Agency (NSA), and various briefings, memoranda, and working notes." [153] At the most generous, the FBI is years away from having such IT capabilities, even if the Bureau's organizational structure and institutional culture permitted such tools to be used appropriately. The FBI's TRILOGY project seeks to improve the Bureau's IT infrastructure in order to bring it up to IC standards, but this project was only begun at the very end of the tenure of Director Louis Freeh -who himself apparently did not even use a personal computer -- and remains a very long way from completion. Moreover, as suggested above, even if TRILOGY succeeds in bringing the FBI up to "Community standards" in the IT realm, those standards are themselves inadequate to the challenges of 21st-century intelligence analysis. (b) A Pattern of Failures _______________ 153 JIS, written statement presented to SSCI/HPSCI joint hearing (September 20, 2002), at 3. 118 Unfortunately, this combination of organizational, cultural, and technological impediments has led the FBI into a recurring pattern of information dysfunction. Time after time during the past few years, the Bureau has distinguished itself by its inability to assess what is in its own files -much less to make productive analytical use of such information. This occurred, for instance, in 1997 when the FBI misplaced vital information in its own files linking the People's Republic of China to illicit political influence operations during the 1996 U .S. Presidential campaign. [154] It happened with the belated discovery of thousands of pages of documents related to convicted Oklahoma City bomber Timothy McVeigh -just days before his execution. [155] It happened on several occasions during the FBI's botched handling of the Wen- Ho Lee nuclear espionage investigation, when agents in the Albuquerque field office or at FBI Headquarters misplaced or failed to pass along crucial information that might have permitted agents to discover Lee's unlawful removal of nuclear secrets from the Los Alamos National Laboratory months or years before they finally did. [156] As detailed by the JIS in the present inquiry, the same thing happened with the Phoenix EC and the many tidbits of information in the FBI' s possession relating to terrorists' interest in U.S. flight schools. It also happened in the FBI's belated revelation to the Joint Inquiry in the late summer of 2002 of certain information relating to the activities of September 11 hijackers _______________ 154 See U.S. Department of Justice, Office of the Inspector General, The Handling of FBI Intelligence Information Related to the Justice Department's Campaign Finance Investigation (July 1999) [unclassified Executive Summary], available at http://www.usdoj.gov.:80/oig/tbicfi/fbicfi.lhtm 155 See, e,g" David Johnson, "Citing FBI Lapse, Ashcroft Delays McVeigh Execution," New York Times (May 12,2001), at AI. 156 See Thompson & Lieberman, supra,at 3-4 & 11. 119 Being able to know what one knows is the fundamental prerequisite for any organization that seeks to undertake even the most rudimentary intelligence analysis. The FBI, however, has repeatedly shown that it is unable to do this. It does not know what it knows, it has enormous difficulty analyzing information when it can find it, and it refuses to disseminate whatever analytical products its analysts might, nonetheless, happen to produce. The Bureau's repeated failures in this regard - despite successive efforts to reorganize its national security components -have led many observers to conclude that "mixing law enforcement with counterintelligence" simply cannot work. As one former director of the National Security Agency has suggested, "cops" cannot do the work of "spies." [157] This insight, in turn, has led to widespread public debate over the need for radical structural reform -including removing the CI and CT functions from the FBI entirely. B. The Need to Consider Radical Reform _______________ 157 Gen. William Odom, USA (ret.), written statement presented to JIS hearing (October 3, 2002), at 4. 120 For all of these reasons, I believe that a very strong
argument can be made for removing the CI and CT portfolios from the FBI.
Despite repeated reorganizations, the FBI has simply performed too poorly
for the American people to have much faith in its ability to meet current Some observers have thus suggested placing the Bureau's CI and CT functions within their own separate agency, a stand-alone member of the Intelligence Community that would be responsible for domestic intelligence collection and analysis but would have no law enforcement powers or responsibilities. This would be, in effect, an American analogue to the British Security Service (a.k.a. MI-5) or the Australian Security Intelligence Organization (ASIO). There is much to recommend such an approach. The FBI today performs the domestic intelligence role within the U.S. Intelligence Community. Its problem, however, is that it performs this task poorly -and arguably cannot be made to perform it well given the cultural and organizational chasm that exists between a "casefile" organization and a true intelligence organization. An MI-5 analogue would allow our domestic intelligence collection and analytical _______________ 158 Eric Lichtblau, "FBI Officials Say Some Agents Lack a Focus on Terror," New York Times (November 21,2002), at 1 (quoting Deputy Director Bruce J. Gebhardt). 121 functions to be performed by a "pure-knowledge" organization freed from the tyranny of the casefile and thus able properly to perform these functions. Paradoxically, such a freestanding "domestic spy agency" might offer advantages over our current structure even in terms of civil liberties. Today, domestic intelligence collection is performed by FBI special agents who, in addition to their "pure-knowledge" functions, also have law enforcement powers: they have badges, can carry firearms, and can arrest and detain Americans. I suspect that most Americans, however, would feel safer having such collection performed by intelligence officers who do not possess coercive powers--and who can only actually take action against someone through a process of formal coordination with law enforcement officials (e.g., an office remaining within the FBI that would function as an analogue to the Special Branch, which performs law enforcement liaison functions with the British Security Service). Should the creation of a wholly freestanding agency turn out to be, in bureaucratic terms, "a bridge too far," an alternative approach might be to separate the CI and CT functions of the FBI into a semi-autonomous organization. This approach envisions an organization that would still report to the FBI director for purposes of overall coordination and accountability, but which would in all other respects (e.g., training and promotion pipelines, IT systems, management structures, and chains of command) be entirely separate from the "criminal" components of the FBI. (This approach might be called the "NNSA option," after Congress' effort in 1999 to create a semi- freestanding National Nuclear Security Administration within the Energy Department - though any effort to do this with the FBI would have to avoid the rampant "dual-hatting" that has eroded the effectiveness of our NNSA reforms.) 122 |