For FBI Director Robert S. Mueller III, the biggest threat to the bureau was a movement to do away with the FBI’s counterterrorism effort and replace it with a new terror-fighting agency similar to the British MI5.
Such an agency would have investigative powers but none of the FBI’s law enforcement powers.
Former National Security Agency director William E. Odom, a retired general, first floated the idea back in 2002. In a later Washington Post op-ed headlined “Why the FBI Can’t Be Reformed,” Odom wrote that the bureau’s shortcomings in fighting the terrorist threat were systemic.
“No one can turn a law enforcement agency into an effective intelligence agency,” he said. “Police work and intelligence work don’t mix. The skills and organizational incentives for each are antithetical. One might just as well expect baseball’s Washington Nationals to win football’s Super Bowl as believe the FBI can become competent at intelligence work.”
These and other similar proposals to break up the FBI came from people who had never investigated terrorism cases and seemed to have no idea how the FBI investigates terrorism post-9/11. But that did not stop members of Congress from endorsing the idea, giving them another chance to go on TV and proclaim that they were doing something to stop terrorist attacks.
Mueller dispatched agents to look into how MI5 and counterterrorism agencies in other countries work. He concluded that applying the MI5 model to the bureau made little sense.
As proposed, the change meant creating a new wall that would bifurcate
|FBI Director Robert S. Mueller III (AP photo)
the counterterrorism effort. In Great Britain, when an arrest must be made, MI5 presents the case to a police agency such as the Metropolitan Police based at New Scotland Yard. MI5 then has the task of trying to persuade that agency to pursue it. Thus, rather than tearing down walls that impede cooperation and sharing of information, as happened before 9/11, an American agency patterned after MI5 would create a new barrier.
More important, without law enforcement powers, MI5 cannot use the threat of prosecution to try to elicit cooperation and recruit informants.
Because terrorists often finance their activities by smuggling cigarettes, selling stolen designer clothing, or dealing in drugs, the FBI’s structure makes it easy for the bureau to pass along leads from agents pursuing such criminal cases to agents focused on counterterrorism.
During creation of a new agency, the country would be vulnerable to attack as investigators are recruited and trained and as they try to develop relations with counterparts in foreign countries.
The continuing chaos at the Department of Homeland Security, which combined 22 agencies and departments, is an illustration of what can happen when a new government agency is created.
The FBI’s focus on violations of criminal laws keeps its agents from violating civil liberties. Without that framework, agents might begin to stray into investigating political beliefs or dissent or even gathering personal information for the purpose of subtly blackmailing political leaders, as happened when J. Edgar Hoover was director. In doing so, they would lose their compass, forgetting what their target is and botching investigations because of a lack of proper focus.
Arthur M. “Art” Cummings II, who headed counterterrorism and counterintelligence investigations until last year, considered nutty the idea of handing over such awesome powers to a new agency not trained in law enforcement.
Cummings and other agents who worked with MI5 in Great Britain knew that its lack of law enforcement powers constantly impeded the British officers’ work, although recent changes have improved coordination between MI5 and the police.
“I find it astounding that anyone would take the position that what you want to do is essentially strip away the law enforcement powers and say, ‘Now go fight terrorism,’” Cummings told me for my new book “The Secrets of the FBI,” to be published Aug. 2.
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“To think that you’re going to develop a domestic intelligence service from the ground up and do it in anything short of a decade before they can even walk, let alone crawl, is crazy,” he said. “And then to think that they could do that and still have the organization grounded in the Constitution and the civil liberties that go with that, I think is crazy as well.”
“The FBI model of combining intelligence and law enforcement responsibility is the envy of allied services, including the British,” says John Martin, who, as chief of the U.S. Justice Department’s counterespionage section for 25 years, had extensive dealings with MI5.
“Indeed,” he adds, “MI5 is constantly impeded by its inability to quickly translate intelligence operations into arrests and prosecutions. Setting up an MI5 in the United States would create a significant and unnecessary barrier to fighting terrorism and espionage at a time when this country needs to enhance its communications among agencies and to quickly react to terrorist threats.”
Instead of adopting the MI5 model, Mueller met with members of Congress privately to explain why such a move would be a disaster. At the same time, he changed the direction of the bureau so that it placed first priority on gathering intelligence to prevent plots rather than obtaining evidence for possible prosecutions.
While the FBI has always looked for leads to stop the next plot and often successfully rolled up plots before they happened, the pressure was always to go on to the next case. The FBI’s primary goal traditionally had been to lock people up.
Cummings told agents that could actually put the country at risk. Instead of bringing a prosecution, the primary goal should be gathering intelligence to penetrate terrorist organizations and develop leads on future plots.
Of course, the FBI has been using intelligence since it pursued tips to close in on John Dillinger at the Biograph Theater in Chicago. It used intelligence to wipe out the Ku Klux Klan and nearly wipe out the Mafia. But using the word intelligence conveys a mindset that emphasizes the importance of holding off on an arrest in order to develop new information.
“Pre-9/11, the first consideration was, I got an indictment in my pocket,” Cummings says. “The CIA would have run the other way, rightfully so. They didn’t want anything to do with testifying in a court of law. And we ran on the assumption that if you had an indictment, you used the indictment. Slap it down on the table, pick the guy up, you throw him on an airplane. You bring him home, you put him in jail, and you go, ‘Okay, I’ve done a great job today.’”
If that were to happen today, Cummings says, “I would have told my agents they basically just put Americans more in jeopardy rather than less in jeopardy. It’s a completely different approach and bears little resemblance to the previous one.”
The success of Mueller’s effort to turn the FBI into a prevention agency is self-evident: With the exception of the shooting rampage by Army Major Nidal Hasan, there have been no successful terrorist attacks since 9/11.
Every few months, the FBI announces new arrests of terrorists. In many cases, instead of waiting years to nail them with terrorism-related charges, the FBI will charge terrorists with lesser crimes that result in deportations or put them away for years.
At the same time, no abuse — meaning an illegal or politically motivated act — has ever been found during Mueller’s nearly 10 years as FBI director.
By combining the best features of a law enforcement agency and a national security agency, Mueller turned the bureau into a powerful weapon against terrorism and overcame the greatest threat to the FBI.
Ronald Kessler is chief Washington correspondent of Newsmax.com. He is a New York Times best-selling author of books on the Secret Service, CIA, and FBI. His latest, "The Secrets of the FBI," is to be released in August. View his previous reports and get his dispatches sent to you free via email. Go Here Now.
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