Broken: The Troubled Past and Uncertain Future of the FBI
by Richard Gid Powers
Free Press. 492 pp. $30.00
In the wake of 9/11, and especially of the report of the 9/11 Commission (formally known as the National Commission on Terrorist Attacks upon the United States), the country expects its intelligence organizations to be changed in ways that will make it easier for them to “connect the dots” so as to alert us to any future terrorist attacks. But just what changes will achieve that goal is not entirely clear.
If specific and obvious leads about the impending 9/11 attacks were received by senior officials, and then deliberately ignored, we should worry deeply about our intelligence systems. But if, on the other hand, there were leads about the 9/11 attacks that got lost in the general noise of countless tips about all manner of terrorist threats around the world, then a sensible policy would be to stop brooding about intelligence failures altogether. The latter seems to have been the case when, decades ago, Congress investigated the Japanese bombing of Pearl Harbor in 1941; it turned out that we knew too much then, not too little, and had no way of deciding which hints were worth pursuing.
Richard Gid Powers, a historian who has written books about the FBI, J. Edgar Hoover, and anti-Communism, was working on a new history of the Bureau when the Twin Towers were struck down by hijacked airliners. His first reaction was the 1941 one: surely, any leads the FBI may have had would prove to have been indistinguishable from meaningless noise. As he completed his research, he decided that he was wrong. He discovered what he believes were smoking guns.
Powers’s interesting book includes a historical account of the FBI from the time of its predecessor agencies, formed early in the 20th century, down through its much-celebrated campaigns against Depression-era gangsters and against Nazi and Communist spies. Most of this material is well-known. The heart of the book, however, lies in Powers’s discussion of the smoking guns and of the culture of the Bureau that led them to be ignored. These chapters make especially valuable reading in conjunction with the report of the 9/11 Commission, and should be carefully studied by people who think they know how to fix the problem.
For nearly a decade, the FBI and the CIA had been keenly aware of Osama bin Laden. In 1998, a sealed indictment against him had been produced by a federal court; a year later, an unsealed indictment alleged that bin Laden was responsible for the attacks on the American embassies in Kenya and Tanzania. By June 2001, the intelligence agencies were warning senior American officials that bin Laden was planning a “spectacular” strike against the United States.
Against this background of keen interest and clear warnings, two FBI officials also sent specific warnings that have since been extensively covered by the press. In a July 2001 message, FBI agent Kenneth Williams in Phoenix reported that Middle Eastern students were taking flight courses, that they hated the United States, that one had a poster of bin Laden in his room, and that several were members of al Qaeda. A month later, FBI agents in Minneapolis reported that Zacarias Moussaoui, a Middle Easterner with hardly any flight experience, had paid $6,800 in cash to get access to a flight simulator for a Boeing 747, normally reserved for the most experienced pilots in the country. Hawkins learned that Moussaoui’s visa had expired and that he was eligible for deportation; local agents arrested him, and decided to get a search warrant to look inside his computer. French intelligence told the Minneapolis agents that Moussaoui was a member of al Qaeda.
What is remarkable is what FBI supervisors in Washington then did with this information, or rather did not do. Williams’s memo was shelved because, Powers asserts, acting on it “might appear to unfriendly observers to be racial profiling.” The Minneapolis request for a search warrant, which could have been issued by a special court that handles such requests when they involve foreign intelligence, was likewise derailed by FBI headquarters. One supervisor asserted, wrongly, that the Chechen group of which Moussaoui had been a member was not a foreign-intelligence target. Then, after the Minneapolis agents labored to establish a link between the Chechen group and al Qaeda, another supervisor wrongly deleted statements about that link from the application for a warrant. An FBI lawyer then decided that the application could not be sent up to the court.
The supervisor who blocked the Minneapolis bid for a warrant was promoted. When Minneapolis agent Coleen Rowley wrote a public memo to FBI director Robert Mueller explaining how badly headquarters had handled the Minneapolis requests, some supervisors contemplated bringing criminal charges against her.
One way to interpret these events is to dismiss them as the routine, albeit regrettable, errors of a few bad supervisors. That is not Powers’s view. To him, the supervisors’ actions flowed directly from a desire to avoid any “unnecessary” actions. Since at least the time of the Church Committee hearings in 1975, the Bureau had learned that what most often landed it in political trouble was not what it failed to do but what it did.
Recall the series of problems that produced the Church Committee’s report. A domestic counterintelligence program, COINTELPRO, had been aimed at disrupting radical organizations. The hotel room of the Rev. Martin Luther King, Jr. had been bugged. Some activists burgled an FBI field office in Media, Pennsylvania, where they discovered documents showing how the Bureau was wiretapping the Black Panthers and conducting surveillance on the Students for a Democratic Society (SDS) and other New Left movements. FBI agents had illegally broken into the homes of families of Weather Underground members. Other agents were involved in the long standoff between law-enforcement personnel and members of the American Indian Movement at Wounded Knee. After the so-called Symbionese Liberation Army kidnapped Patty Hearst, it took the Bureau months to find the captors even though they were robbing banks as they moved about. And so forth.
The image of the Bureau as a professional, nonpartisan, and utterly competent agency was in disarray. The Church Committee published a fierce denunciation of its practices. Although the bureau’s new directors, William Ruckelshaus and Clarence Kelley, worked hard to rebuild confidence in the agency, theirs was, at the time, a hopeless task. As Powers puts it, many Americans had turned against not only the FBI but the entire federal government of which it was a part. In the late 1970’s, the number of domestic-intelligence investigations being carried out by the FBI fell from 22,000 to 4,000. The Bureau pretty much stopped developing informants in radical organizations. Without informants, an investigative agency is dead in its tracks.
This problem remained at the heart of Louis Freeh’s tenure as director from 1993 to 2001. To him, the FBI should be chiefly concerned with ethics, and that meant being reactive: the only safe law-enforcement activity would be in response to events that had already occurred.
The foundation for this reactive posture had been put in place by former Attorney General Edward H. Levi in 1976. Under his guidelines, a “preliminary investigation” could be launched when the Bureau had allegations that someone might be engaged in activities involving the violation of federal law. But such inquiries were limited to 90 days, were to be confined to reviewing files and public records, and could have no goal other than to learn whether the allegations were true. If the Bureau, within those three months, wanted to start a full investigation, it had to have discovered “specific and articulable facts” and it had to have the approval of the Justice Department.
Whenever it appeared that the Bureau was violating the spirit of this order, the political roof fell in on it. Even a closed investigation could become meat for Bureau critics—as when William Sessions, an absolutely hopeless director, publicly apologized for one investigation despite the fact that it had been authorized under the Levi guidelines and had been approved by the Justice Department.
Matters became still worse during the Clinton administration. That was when Jamie Gorelick, at the time a key official in the Justice Department and later, ironically, a member of the 9/11 Commission, issued a ruling that stretched even farther the gap between intelligence and investigative work. Her instructions, she conceded, went “beyond what [was] legally required”; their goal was to “prevent any risk of creating an unwanted appearance” that the FBI was acting inappropriately.
Powers summarizes the lesson of his history: “Any revelation that the Bureau kept any eye on anyone who had not yet committed a crime would be used against it.” I would amend this slightly: any revelation that the Bureau was keeping an eye on left-wing groups would be used against it. Very few complaints were to be heard about the FBI’s having thoroughly infiltrated the Ku Klux Klan (at one time, about a fifth of the Klan’s members were Bureau informants), and a major movie was made about the success of an FBI agent in becoming a member of a Mafia organization. But if it penetrated the Weather Underground, or Citizens in Solidarity with the People of El Salvador (CISPES), or the Black Panthers, the Bureau was in trouble.
Of course, there were cases in which a Bureau investigation was clearly wrong, as in the bugging of King’s hotel room. And there were and are instances when the Bureau has come in for lambasting from the Right, as in the episode of David Koresh and the Branch Davidian compound in Waco, Texas. But these were exceptions. What the Bureau learned was that it could either penetrate radical groups or avoid penetrating them, and that the former course was exceedingly dangerous to its ability to function at all. Powers puts the matter this way: “You can’t protect a country that doesn’t want to be protected.”
Today, the Patriot Act has eliminated the barrier between intelligence and investigative agents so that the Bureau and the CIA can share information with each other and also with law-enforcement officials. But the larger problem remains: share what information?
Dealing with terrorists here or abroad means getting leads from people in or close to terrorist or potential terrorist groups. Doing that means, often, putting a double agent in place. In the case of a group composed of United States citizens or lawfully admitted aliens, an agent asked to penetrate such a group might well recall the two high Bureau officials who narrowly escaped going to prison for having broken into the homes of members of the ultra-radical Weather Underground.
To all the current talk about changing the culture of the FBI, Powers has a withering reply: “The FBI can no more create its own culture independent of the rest of government and the rest of society than Rhode Island can create its own climate independent of Massachusetts.”
Whom will agents believe today, an FBI director who tells them what they may investigate, or their memory of senior officials facing jail time for having investigated too aggressively?
Suppose we tried to deal with the problem by creating a new intelligence agency, modeled perhaps on MI-5, the British Secret Service. It, like its English cousin, would gather intelligence and then refer any cases requiring investigation and prosecution to the FBI just as MI-5 refers them to Scotland Yard. But the American MI-5 would face the same problem as the Bureau: could it acquire political support to penetrate radical groups in this country?
So far, I think, the answer is probably no. That may change, but in the volatile, polarized politics of Washington, D.C., I am not optimistic. Carl Stern, once an NBC reporter, used the Freedom of Information Act to pry material about COINTELPRO out of the Justice Department. His successors could use the same law as a weapon against an American MI-5. England, significantly, has no such law.
The same sorts of problems plague other recent proposals for overhauling our intelligence services, including those of Senator Pat Roberts and of the 9/11 Commission itself. As is well known, the Commission suggested the creation of a cabinet-level national intelligence director who would oversee homeland security by, among other things, having under his command the head of the FBI’s intelligence office. Such an arrangement might help reduce the lack of communication between the CIA and the FBI that characterized the months leading up to 9/11, but I remain skeptical that a new cabinet bureaucracy would produce close working-level cooperation between the agencies. In any case, whatever its merits, the new strategy would do nothing to deal with the widespread reluctance to adopt the bold steps necessary to penetrate and destabilize terrorist groups here at home.
Those steps require that senior law-enforcement officials be willing to take the heat when the press reports that a (possibly) innocent Islamic group is now under the Bureau’s microscope or that “racial profiling” has occurred. The lessons these officials have learned from their experience with radical groups and Central American support organizations still shape their consciousness. With many left-leaning politicians and much of the mainstream media now suggesting that our invasion of Iraq was a mistake, those old lessons have hardly been forgotten.