The FBI has come under harsh criticism in recent weeks for its failure to act on information that might have enabled it to thwart the September 11 attacks. Rather than deny the criticism, FBI Director Robert Mueller has embraced it (easy for him to do, since he didn't start on the job until September 4) and then exploited it to argue that the bureau needs more power, more resources and fewer restrictions.
Both the criticism and the remedy are misguided. The dots that everyone now says should have been connected consist of a few leads spread over a three-year period: a 1998 memo from an FBI agent in Oklahoma suspicious about some Middle Eastern men taking flying lessons; a July 2001 memo from a Phoenix agent speculating that Osama bin Laden could be sending terrorists to flight schools here; and the August 2001 arrest of Zacarias Moussaoui for acting suspiciously in flight school. Viewed in hindsight, each points inexorably to September 11. But there is a world of difference, as any gambler, stock trader or palm reader will tell you, between perceiving the connections after and before the fact. On September 10 these three bits of information competed for the FBI's attention with thousands of other memos, leads and suspicious events pointing in thousands of other directions. We are engaged in a nationwide session of Monday-morning quarterbacking.
The remedy is worse. Shifting resources to fighting terrorist threats makes sense, but freeing the FBI from the minimal restrictions it has operated under in the past does not. The guidelines governing the FBI's domestic criminal investigations, which do not even apply to international terrorism investigations, had nothing to do with the FBI missing the September 11 plot. And it is likely that the changes in the guidelines announced by Attorney General John Ashcroft will actually reduce the FBI's effectiveness in fighting terrorism.
The old guidelines were sparked by revelations that in the 1960s and '70s, the FBI's COINTELPRO initiative targeted perfectly lawful antiwar, environmental, feminist and civil rights groups for widespread monitoring, infiltration and disinformation. The guidelines sought to remedy the FBI's proclivity for indulging in guilt by association and conducting intrusive and sweeping investigations of political groups without any criminal basis. They sought to focus the FBI on its mission, which, contrary to popular perception, has always been to prevent as well as to investigate crime.
But even under the guidelines abuses continued. One of the most prominent involved an investigation of the Committee in Solidarity With the People of El Salvador (CISPES) from 1983 to 1985. Under the rubric of counterterrorism, the FBI monitored student rallies, infiltrated meetings and identified attendees at CISPES events. In the end, the bureau had collected information on 1,330 groups--including Oxfam America, the US Catholic Conference and a Cincinnati order of nuns--but no evidence of crime.
Such investigations are likely to be commonplace in the post- September 11 era. Ashcroft's guidelines expressly permit the FBI to conduct some investigations without even a shred of information about potential criminal conduct. And Congress has so expanded the definition of federal crimes that requiring a criminal basis is not enough to forestall political spying. Federal antiterrorism laws of 1996 and 2001 now make it a crime to provide any associational support to foreign groups we designate as terrorist, even if the support has no connection whatever to terrorist activity. Under those laws, the CISPES investigation would have been legal, on suspicion that CISPES was supporting the Salvadoran rebel movement.
The combined effect of the expanded statute, loosened guidelines and increased counterterrorism personnel at the FBI will be to bring in exponentially more information about the populace than the FBI has ever had. Some of the additional information obtained may, like the isolated leads developed before September 11, be related to terrorist plots. But those leads are almost certain to be drowned out by the barrage of information about innocent political activity.
An intelligence expert on a recent panel with me claimed that what we need now is "all-source intelligence fusion," meaning a group of analysts sitting in a room analyzing mounds of data for trends and patterns. Despite its techno-trendy title, all-source intelligence fusion is no substitute for good relations with the affected communities. If the FBI has information that the threat is likely to stem from Arab sources, it should be building bridges to the millions of law-abiding Arabs--instead of profiling Arab students without cause, holding Middle Easterners without charges and selectively registering all immigrants from Arab countries. You don't build bridges by infiltrating and monitoring legitimate political and religious activity.
David ColeThe FBI has come under harsh criticism in recent weeks for its failure to act on information that might have enabled it to thwart the September 11 attacks. Rather than deny the criticism, FBI Director Robert Mueller has embraced it (easy for him to do, since he didn’t start on the job until September 4) and then exploited it to argue that the bureau needs more power, more resources and fewer restrictions.
Both the criticism and the remedy are misguided. The dots that everyone now says should have been connected consist of a few leads spread over a three-year period: a 1998 memo from an FBI agent in Oklahoma suspicious about some Middle Eastern men taking flying lessons; a July 2001 memo from a Phoenix agent speculating that Osama bin Laden could be sending terrorists to flight schools here; and the August 2001 arrest of Zacarias Moussaoui for acting suspiciously in flight school. Viewed in hindsight, each points inexorably to September 11. But there is a world of difference, as any gambler, stock trader or palm reader will tell you, between perceiving the connections after and before the fact. On September 10 these three bits of information competed for the FBI’s attention with thousands of other memos, leads and suspicious events pointing in thousands of other directions. We are engaged in a nationwide session of Monday-morning quarterbacking.
The remedy is worse. Shifting resources to fighting terrorist threats makes sense, but freeing the FBI from the minimal restrictions it has operated under in the past does not. The guidelines governing the FBI’s domestic criminal investigations, which do not even apply to international terrorism investigations, had nothing to do with the FBI missing the September 11 plot. And it is likely that the changes in the guidelines announced by Attorney General John Ashcroft will actually reduce the FBI’s effectiveness in fighting terrorism.
The old guidelines were sparked by revelations that in the 1960s and ’70s, the FBI’s COINTELPRO initiative targeted perfectly lawful antiwar, environmental, feminist and civil rights groups for widespread monitoring, infiltration and disinformation. The guidelines sought to remedy the FBI’s proclivity for indulging in guilt by association and conducting intrusive and sweeping investigations of political groups without any criminal basis. They sought to focus the FBI on its mission, which, contrary to popular perception, has always been to prevent as well as to investigate crime.
But even under the guidelines abuses continued. One of the most prominent involved an investigation of the Committee in Solidarity With the People of El Salvador (CISPES) from 1983 to 1985. Under the rubric of counterterrorism, the FBI monitored student rallies, infiltrated meetings and identified attendees at CISPES events. In the end, the bureau had collected information on 1,330 groups–including Oxfam America, the US Catholic Conference and a Cincinnati order of nuns–but no evidence of crime.
Such investigations are likely to be commonplace in the post- September 11 era. Ashcroft’s guidelines expressly permit the FBI to conduct some investigations without even a shred of information about potential criminal conduct. And Congress has so expanded the definition of federal crimes that requiring a criminal basis is not enough to forestall political spying. Federal antiterrorism laws of 1996 and 2001 now make it a crime to provide any associational support to foreign groups we designate as terrorist, even if the support has no connection whatever to terrorist activity. Under those laws, the CISPES investigation would have been legal, on suspicion that CISPES was supporting the Salvadoran rebel movement.
The combined effect of the expanded statute, loosened guidelines and increased counterterrorism personnel at the FBI will be to bring in exponentially more information about the populace than the FBI has ever had. Some of the additional information obtained may, like the isolated leads developed before September 11, be related to terrorist plots. But those leads are almost certain to be drowned out by the barrage of information about innocent political activity.
An intelligence expert on a recent panel with me claimed that what we need now is “all-source intelligence fusion,” meaning a group of analysts sitting in a room analyzing mounds of data for trends and patterns. Despite its techno-trendy title, all-source intelligence fusion is no substitute for good relations with the affected communities. If the FBI has information that the threat is likely to stem from Arab sources, it should be building bridges to the millions of law-abiding Arabs–instead of profiling Arab students without cause, holding Middle Easterners without charges and selectively registering all immigrants from Arab countries. You don’t build bridges by infiltrating and monitoring legitimate political and religious activity.
David ColeTwitterDavid Cole is The Nation’s legal affairs correspondent, and national legal director of the American Civil Liberties Union.