Stunned guns: how we've made the FBI too timid to bug mosques—or Ken Lay's office

Washington Monthly, Nov, 2004 by Richard Gid Powers

One of the strangest things about the 9/11 Commission's report is that the FBI, whose intelligence failures during the summer of 2001 had been the most glaring of all the security agencies, actually managed to get itself ... promoted. The Bureau's jurisdiction over domestic counterterrorism remains intact, its leadership has been left in place, its authority increased by the Patriot Act, and its budget for 2005 upped by Congress beyond what either President Bush or FBI Director Robert Mueller had requested. For close watchers of the Bureau, all of this came as something of a shock. Virtually everyone in Washington and the intelligence community had expected the FBI to have its wings severely clipped, particularly after former Senate intelligence committee chairman Richard Shelby (R-Ala.) had joined many other critics to charge that the FBI's failures were so deeply rooted in its "risk- aversive" institutional culture that it could no longer be trusted to carry out domestic intelligence work. Shelby and other critics had recommended an entirely new agency (modeled on Britain's MI5) be created to gather domestic intelligence.

But when the Commission's report came out in August, it noted the praiseworthy changes Mueller had been making at the FBI in the interim--refocusing 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 call--not derisively, one hopes--the "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, Mudler'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 water--jobs 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 work--we mined the FBI, like a dog that has been beaten too often for barking, not to bark at all.

Communication breakdown

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 leads--and they were very good ones--either vigorously or effectively.

For two years before the arracks, the whole American intelligence community--the FBI, CIA, and the Defense Intelligence Agency--had 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 bad 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 muted to units within the Burean'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.