April 13, 2004,
EDITOR'S NOTE: This article appeared in the November 25, 2002, issue of National Review.
Fighting back tears, an agent from the FBI's New York office told Congress how his Washington bosses had ordered him not to track suspected terrorist Khalid al-Midhar. Precisely because the CIA had told the FBI that Midhar was an al-Qaeda operative, the FBI could do nothing: Data obtained through intelligence channels could not be used to launch a criminal investigation. Midhar was let be. Thirteen days later, he helped hijack the plane that struck the Pentagon.
The agent's testimony, delivered to a shocked audience at a September hearing of the Joint Intelligence Committee, spotlighted a grave flaw in our national-security system: the wedge between law enforcement and intelligence. Yet for all their focus on this wedge in nine public hearings committee investigators showed little curiosity about its origins. In a staff report, they cited rules "about using information derived from intelligence-gathering activities in criminal investigations," but did not consider how the rules arose. They merely noted that certain procedures had "developed over the last several years."
Saying "the last several years" instead of "the Clinton administration" did preserve the hearings' bipartisan tone. Unfortunately, it also thwarted scrutiny of the policy that caused our spy failures a Clinton policy the Bush administration has yet to fully reject.
Though President Clinton failed in his ambition to "reinvent government," he did manage to reinvent national security. His core innovation was to expand the FBI's powers while reducing the CIA's. Previously, law enforcement and intelligence had coexisted in a delicate equilibrium; Clinton pushed down hard on the law-enforcement side of the seesaw.
The rationale for this shift was provided by the FBI itself. In January 1992, the George H. W. Bush White House asked all security agencies to reassess their "post-Soviet" priorities. At that fateful moment, the chief of the National Security Threat List Unit, in the FBI's Intelligence Division, suggested a radical shift in focus: Instead of neutralizing organized secret warfare by states, the counterintelligence community should target criminal acts by loose networks of rogue actors. The collapse of the Soviet Union, it was foreseen, would provide a fertile operational field for the transnational criminal. The threat list was revised accordingly: Three hundred FBI agents were pulled from intelligence duties and pushed into international crime.
The FBI unit chief who revised the threat list, Robert Phillip Hanssen, would later confess to being a Soviet and Russian agent. But by then the new notions about national security were dogma. In May 1994, FBI director Louis J. Freeh told Congress that "criminal cartels are now richer and stronger than many nations." The New York Times echoed that judgment: "The threats [today] are less nations than gangs. The harm they can do the United States is . . . a law-enforcement problem."
This doctrine was refined by former Carter defense secretary Harold Brown, whom Clinton chose to head the Commission on the Roles and Capabilities of the United States Intelligence Community. Brown redefined international terrorism traditionally considered a form of political warfare as a form of "global crime." Terrorism joined narcotics transshipment and trafficking in weapons of mass destruction in that category; Clinton nearly always mentioned all three together, typically in the same sentence, as if they were the heads of one private-sector hydra, an unsponsored monster that was merely the incidental byproduct of globalization.
To counter global crime instead of global political subversion, the national-security community would have to be reoriented. During the Cold War, when the greatest perceived threat was a military one, the Pentagon had been seen as the institution that could best defend America. Now, in the age of global crime, the FBI would be the new Pentagon. Much as the Pentagon had absorbed the Army, Navy, Air Force, Marines, electronic surveillance, and satellite reconnaissance, so now the FBI became a bureaucratic Pac-Man, gobbling up national-security functions.
Presidential Decision Directive 24 (May 3, 1994), which gave the Bureau control of counterespionage, was just the start. The Economic Espionage Act and the Combating Proliferation of Weapons of Mass Destruction Act thrust the Bureau farther into CIA preserves. And on June 21, 1995, Clinton issued Presidential Decision Directive 39, which made the Bureau the pointed end of the counterterrorist spear. The purpose of PDD-39, attorney general Janet Reno said, was to "integrate the roles of all pertinent federal agencies in a comprehensive, pro-active counterterrorism program." Clinton named the FBI the "lead" agency in that effort, and lest the importance of that distinction be questioned PDD-39 itself specified: "Lead agencies are those that have the most direct role in and responsibility for implementation of U.S. counterterrorism policy" (emphasis added).
This marked a radical change. Previously, law-enforcement agencies had been passive participants in foreign policy, relegated to observer status at the National Security Council and its working groups. Now the FBI and the Justice Department would play major policy roles. In 1998 Congress directed the attorney general not the president's national security adviser to develop a five-year plan to coordinate "national policy" and "operational" capabilities to combat terrorism.
The Clinton administration deployed various fogs and euphemisms for this coup de bureau. Janet Reno used words like "partnership" and "coordination." National security adviser Sandy Berger invoked a corporate-merger model. Former CIA officer Robert Baer, expressing the CIA viewpoint in his 2002 book, would be less delicate: "Over at the FBI, director Louis Freeh couldn't wipe the smile off his face. He was dismantling the CIA piece by piece."
Whatever the phrase, the result was plain. "When the law-enforcement juggernaut gets going," former attorney general William Barr noted, "everyone else steps out of the way." In 1996, on Clinton's orders, Freeh formed a new Counterterrorism Center, patterned on the CIA's, to "coordinate the efforts of various components of the U.S. intelligence community" a function previously reserved to the director of the CIA. He increased the number of the FBI's overseas legal-attache offices from 22 to 44; Baer speculated that these offices "one day will displace the CIA [stations]." The FBI also usurped the CIA's national-warning functions when Freeh created a Counterterrorism Threat Assessment and Warning Unit to assess "domestic and international terrorist threats" (emphasis added). When CIA director John C. Deutch spoke on terrorism at Georgetown University in September 1996, he submissively titled his talk: "Fighting Foreign Terrorism: The Integrated Efforts of the Law-Enforcement Community" (again, emphasis added). By 2000, Freeh was speaking openly of "FBI leadership in national security."
When Clinton signed PDD-24, which began the FBI takeover, the White House claimed the measure would "improve our ability to counter both traditional and new threats to our nation's security in the post-Cold War era." In fact, the opposite was true: For at least five reasons, treating al-Qaeda as if it were merely a foreign branch of the Bonanno crime family was a strategy that could only fail.
First, law enforcement traditionally reacted to crimes after they occurred the very opposite of the preemptive approach required by counterterrorism.
Second, because FBI agents had no legal jurisdiction in other sovereign countries, they were at the mercy of unhelpful foreign governments, such as Saudi Arabia and Iran.
Third, a war waged on terror according to the rules of criminal procedure was no "war" at all. Janet Reno was given virtual veto power over the use of force: If the Pentagon acted on data gathered by the FBI, those actions could be considered illegal in future court cases. In 1998, while Clinton weighed whether to lob Tomahawks into Afghanistan and Sudan, Reno delayed the strikes so that Justice Department lawyers could review the implications. Bin Laden used the delay to elude the Pentagon's targeteers. Similarly, in 1996, when the White House pondered asking Sudan to arrest bin Laden and turn him over to the FBI, Justice attorneys pronounced the evidence insufficient for prosecution; bin Laden slithered to safety in Afghanistan.
Fourth, the FBI's new primacy thickened the wall between law enforcement and intelligence. CIA case officers feared that enforced support for FBI probes would open them to stricter judicial scrutiny, which would impede their ability to recruit sources. The Agency's longtime reluctance to share data with the Bureau only deepened. And as terrorism became increasingly a criminal matter, data sharing between cops and spies became more and more difficult. Because the use of secret intelligence in criminal trials raised civil-liberties issues, Reno was compelled to promulgate mazelike guidelines, walling off FBI crime inquiries from espionage probes. The Midhar debacle was a product of these procedures. With perversely perfect illogic, each vaunted new Clinton law against terrorism each new occasion for criminal inquiry actually discouraged the collation of intelligence on terrorists.
Fifth and finally, giving the FBI the lead role against al-Qaeda violated the basic rule of warfare: Know thine enemy. Though the FBI is the best police force in the world, it is not geared to the assessment of international jihad. Asking veterans of bank robbery and child-porn cases to become scholars of comparative religion, to forecast trends in a clash of civilizations, was a conspicuous case of wishful thinking. In the end, the problem would be not so much bad analysis as the lack of any analysis at all. In July 2000, Freeh's deputy assistant director for counterterrorism, Terry Turchie, said, "Since 1995 [when it became the lead counterterrorism agency] the FBI has avoided issuing comprehensive assessments estimating the threat against U.S. interests. Given the range of potential threats . . . from terrorist organizations . . . such assessments would be inherently too broad-based to provide much practical value." In short: The lead agency for counterterrorism would not analyze the terrorist threat.
Placing the FBI in charge of counterterrorism created a strategic vacuum at the heart of national-security operations. The critical stage of intelligence management the setting of collection priorities requires definition of the probable threat. Lacking any definition more coherent than "the threat of global crime," the FBI could only work case-by-case. That increased, to a virtual certainty, the odds that the nation would be strategically surprised. As strategic-warning specialist Richard Betts has written: "Surprise can be engendered if collectors focus on the wrong threat. Surprise can also be engendered, however, if collectors focus on all threats equally."
So it was before 9/11. "An overall assessment of the risk to America was not prepared," testified Eleanor Hill, the intelligence committee's chief investigator. "As a result, to much of the intelligence community, everything was a priority. The U.S. wanted to know everything about everything all the time." No wonder Freeh found that "analyzing intelligence" was, as he recalled, "like trying to take a sip of water coming out of a fire hydrant." In the months before doomsday, the FBI was warning the Pentagon to prepare simultaneously against attacks from hang gliders, mortars, and weapons of mass destruction. The Bureau was listening for everything, and hearing nothing.
Since 9/11 the law-enforcement model has been broadly criticized, by policy analysts and legislators alike. The congressional joint inquiry traced the 9/11 intelligence failures to "issues that transcend the Intelligence Community and involve questions of policy." Even after the 1998 African embassy attacks, Hill noted, "the United States continued to rely on what was primarily a law-enforcement approach to terrorism. As a result, while prosecutions succeeded in taking individual terrorists off the streets, the masterminds of past and future attacks often remained beyond the reach of justice."
Alas, the Bush administration has largely retained the Clinton model. The easing of Reno's strictures by the Patriot Act and the remanding of al-Qaeda prisoners to military tribunals have not changed the basic bureaucratic structure of counterterrorism. In May, President Bush actually expanded the FBI's counterterrorist mandate; and, in his Homeland Security Plan, he pledged that "the Department of Justice, and the FBI, will remain the lead law-enforcement agencies for preventing terrorist attacks."
Whether this effort should be led by a law-enforcement agency at all is an issue the administration is only now confronting. The November 4 assassination of an al-Qaeda leader in Yemen, reportedly by the CIA, would seem to mark a pronounced change for the better; under Clinton, FBI agents would simply have flashed their badges at Yemeni officials, then skulked home with empty handcuffs.
Encouragingly, too, there's a movement to transfer the FBI's spy functions to a new domestic-security unit. As this article went to press, Homeland Security director Tom Ridge was in London, holding talks with Eliza Manningham-Buller, director of Britain's domestic counterspy and counterterrorist unit, MI5. Unlike the FBI, MI5 has no law-enforcement mandate, but specializes in the collection of intelligence. Though Ridge would neither confirm nor deny that the administration was weighing an "MI5 solution," his visit came on the heels of meetings between Senate Intelligence Committee staffers and British security officials. At least three members of that committee Chairman Bob Graham and Sens. John Edwards and Fred Thompson are said to be crafting legislation for an "American MI5."
Any such initiative will face serious obstacles. Civil libertarians will view a domestic spy agency as a threat to constitutional rights: Sen. Dianne Feinstein has already spoken out against the idea on these grounds. Bureaucrats will see a new security service as a grab at their turf: FBI director Robert S. Mueller has predictably gone on record against it. Finally, one of the most influential members of the Bush team Vice President Dick Cheney is said to oppose any radical shakeup, apparently reasoning that the chaos of dislocation would be a cure worse than the disease of incompetence.
But it's hard to imagine what could be worse than the incompetence that led up to 9/11. The cause of that incompetence the Clinton law-enforcement model of counterterrorism should be addressed and removed now. As CIA director George Tenet testified on the final day of the intelligence hearings: "I think one of the things that we've learned is, is in hindsight, the country's mindset has to be changed fundamentally. . . . Because the threat environment we find ourselves in today is as bad as it was last summer, the summer before 9/11. They [al-Qaeda] have reconstituted. . . . They intend to strike this homeland again. And we better get about the business of putting the right [intelligence] structure in place as fast as we can."
Mark Riebling is the author of Wedge: From Pearl Harbor to 9/11: How the Secret War Between the CIA and FBI Has Endangered National Security .