RL32336 -- FBI Intelligence Reform Since September 11, 2001:
Issues and Options for Congress
April 6, 2004
Alfred Cumming
Specialist in Intelligence and National Security
Foreign Affairs, Defense and Trade Division
Todd Masse
Specialist in Domestic Intelligence and Counterterrorism
Domestic Social Policy Division
CONTENTS
Summary
The Intelligence Community, including the Federal Bureau of
Investigation (FBI), has been criticized for failing to warn
of the attacks of September 11, 2001. In a sweeping indictment
of the FBI's intelligence activities relating to counterterrorism
and September 11, the Congressional Joint Inquiry Into the Terrorist
Attacks of September 11, 2001, singled out the FBI in a significant
manner for failing to focus on the domestic terrorist threat;
collect useful intelligence; analyze strategic intelligence;
and to share intelligence internally and with other members of
the Intelligence Community. The Joint Inquiry concluded that
the FBI was seriously deficient in identifying, reporting on,
and defending against the foreign terrorist threat to the United
States.
The FBI is responding by attempting to transform itself into
an agency that can prevent terrorist acts, rather than react
to them as crimes. The major component of this effort is restructuring
and upgrading of its various intelligence support units into
a formal and integrated intelligence program, which includes
the adoption of new operational practices, and the improvement
of its information technology. FBI Director Robert S. Mueller,
III, has introduced reforms to curb the autonomy of the organization's
56 field offices by consolidating and centralizing FBI Headquarters
control over all counterterrorism and counterintelligence cases.
He has also established (1) an Executive Assistant Director for
Intelligence (EAD-I); (2) an Office of Intelligence to exercise
control over the FBI's historically fragmented intelligence elements;
and (3) field intelligence groups to collect, analyze, and disseminate
intelligence.
Reactions to these FBI reforms are mixed. Critics contend the
reforms are too limited and have implementation problems. More
fundamentally, they argue that the gulf between law enforcement
and intelligence cultures is so wide, that the FBI's reforms,
as proposed, are unlikely to succeed. They believe the FBI will
remain essentially a reactive law enforcement agency, significantly
constrained in its ability to collect and exploit effectively
intelligence in preventing terrorist acts.
Supporters counter that the FBI can successfully address its
deficiencies, particularly its intelligence shortcomings, and
that the Director's intelligence reforms are appropriate for
what needs to be done. They argue that the FBI is unique among
federal agencies, because it supplies the critical ingredient
to a successful war against terrorism in the U.S. -- unmatched
law enforcement capabilities integrated with an improving intelligence
program.
The congressional oversight role includes deciding on whether
to accept, modify, or reject the FBI's intelligence reforms currently
underway. Congress may consider several options, ranging from
support of the FBI's current reforms, to establishing a stand-alone
domestic intelligence service entirely independent of the FBI.
Congress may also reevaluate how it conducts oversight of the
FBI. Pending legislation on FBI intelligence reform includes,
but is not limited to, S.
410, The Foreign Intelligence Collection Improvement Act
of 2003, and S.
1520, The 9-11 Memorial Intelligence Reform Act.
Introduction (1)
The September 11, 2001 terrorist attacks on the United States
have been labeled as a major intelligence failure, similar in
magnitude to that associated with the Japanese attack on Pearl
Harbor. (2) In
response to criticisms of its role in this failure, the Federal
Bureau of Investigation (FBI) has introduced a series of reforms
to transform the Bureau from a largely reactive law enforcement
agency focused on criminal investigations into a more mobile,
agile, flexible, intelligence-driven (3) agency
that can prevent acts of terrorism.
FBI Director Robert S. Mueller, III initiated changes that were
sparked by congressional charges that the Intelligence Community
(IC), (4) including
the FBI, missed opportunities to prevent, or at least, disrupt
the September 11 attacks on New York City and Washington. In
a sweeping indictment of the FBI's intelligence activities relating
to counterterrorism, the Joint Inquiry Into Intelligence Community
Activities Before and After the Terrorist Attacks of September
11, 2001, (5) (JIC)
criticized the FBI for failing to focus on the terrorist threat
domestically; collect useful intelligence; strategically analyze
intelligence, (6) and
to share intelligence internally, and with the rest of the IC.
According to the congressional inquiry, the FBI was incapable
of producing significant intelligence products, and was seriously
handicapped in its efforts to identify, report on (7) and
defend against the foreign terrorist threat to the United States. (8)
Observers believe successful FBI reform will depend in large
measure on whether the FBI can strengthen what critics have characterized
as its historically neglected and weak intelligence program,
particularly in the area of strategic analysis. They contend
the FBI must improve its ability to collect, analyze and disseminate
domestic intelligence so that it can help federal, state and
local officials stop terrorists before they strike. If the FBI
is viewed as failing this fundamental litmus test, they argue,
confidence in any beefed up intelligence program will quickly
erode.
Critics contend the FBI's intelligence reforms are moving too
slowly (9) and
are too limited. (10) They
argue that the FBI's deeply rooted law enforcement culture and
its reactive practice of investigating crimes after the fact, (11) will
undermine efforts to transform the FBI into a proactive agency
able to develop and use intelligence to prevent terrorism (for
a more detailed discussion of the FBI's reactive "case file" approach,
see Appendix 4). While the British Security
Service (MI-5) may or may not be an appropriate organizational
model for U.S. domestic intelligence for myriad reasons, the
primacy it accords to intelligence functions over law enforcement
interests may be worthy of consideration. (12) In
justifying their pessimism, critics cite two previous failed
attempts by the FBI to reform its intelligence program (for a
more detailed discussion, see Appendix 5).
Critics also question whether Director Mueller, who has an extensive
background in criminal prosecution but lacks experience in the
intelligence field, (13) sufficiently
understands the role of intelligence to be able to lead an overhaul
of the FBI's intelligence operation. (14)
Supporters counter that they believe the FBI can change, that
its shortcomings are fixable, and that the Director's intelligence
reforms are appropriate, focused and will produce the needed
changes. (15) They
also argue that a successful war against terrorism demands that
law enforcement and intelligence are closely linked. And they
maintain that the FBI is institutionally able to provide an integrated
approach, because it already combines both law enforcement and
intelligence functions. (16)
A major role for Congress is whether to accept, modify or reject
the FBI's intelligence reforms. Whether lawmakers believe the
FBI to be capable of meaningful reform, and the Director's reforms
to be the correct ones, could determine whether they accept or
modify his changes, or eliminate them altogether in favor of
a new separate domestic intelligence agency entirely independent
of the FBI, as some have advocated. (17)
This report examines the FBI's intelligence program and its
reform. Specifically, the section covers a number of issues that
Congress might explore as part of its oversight responsibilities,
to develop and understanding of how well the FBI is progressing
in its reform efforts. The following section outlines the advantages
and disadvantages of several congressional options to make further
changes to the FBI's intelligence program. (18) Finally,
a number of appendices concerning contextual issues surrounding
FBI intelligence reform are provided.
FBI Intelligence Reforms
The FBI is responding to the numerous shortcomings outlined
by the JIC by attempting to transform itself into an agency that
can prevent terrorist acts, rather than react to them as criminal
acts. The major component of this effort is the restructuring
and upgrading of its various intelligence support units into
a formal and integrated intelligence program, which includes
the adoption of new operational practices, and the improvement
of its information technology. FBI Director Robert S. Mueller,
III, has introduced reforms to curb the autonomy of the organization's
56 field offices by consolidating and centralizing FBI Headquarters
control over all counterterrorism and counterintelligence cases.
He has also established (1) an Executive Assistant Director for
Intelligence (EAD-I); (2) an Office of Intelligence to exercise
control over the FBI's historically fragmented intelligence elements;
and (3) field intelligence groups to collect, analyze, and disseminate
intelligence. The FBI also has reallocated its resources in an
effort to establish an effective and efficient intelligence program.
The reforms are intended to address the numerous perceived shortcomings,
including those outlined by the JIC Inquiry, which concluded
the FBI failed to
- Focus on the domestic threat. "The FBI was unable
to identify and monitor effectively the extent of activity
by al-Qaida and other international terrorist groups operating
in the United States." (19)
- Conduct all-source analysis. (20) "...
The FBI's traditional reliance on an aggressive, case-oriented,
law enforcement approach did not encourage the broader collection
and analysis efforts that are critical to the intelligence
mission. Lacking appropriate personnel, training, and information
systems, the FBI primarily gathered intelligence to support
specific investigations, not to conduct all-source analysis
for dissemination to other intelligence agencies." (21)
- Centralize a nationally-coordinated effort to gain intelligence
on Osama Bin Laden and al-Qaida. "... The FBI's 56 field
offices enjoy a great deal of latitude in managing their
work consistent with the dynamic and reactive nature of its
traditional law enforcement mission. In counterterrorism
efforts, however, that flexibility apparently served to dilute
the FBI's national focus on Bin Laden and al-Qaida." (22)
- Conduct counterterrorism strategic analysis. "Consistent
with its traditional law enforcement mission, the FBI was,
before September 11, a reactive, operationally-driven organization
that did not value strategic analysis ... most (FBI consumers)
viewed strategic analytical products as academic and of little
use in ongoing operations." (23)
- Develop effective information technology systems.
The FBI relied upon "... outdated and insufficient technical
systems...." (24)
Business Process Changes
In an attempt to transform and upgrade its intelligence program,
the FBI is changing how it processes intelligence by formally
embracing the traditional intelligence cycle, a long-time practice
followed by the rest of the IC. It also is centralizing control
over its national security operations at FBI Headquarters.
The Intelligence Cycle. FBI
is attempting to formalize and discipline its approach to intelligence
by embracing the traditional intelligence cycle, a process through
which (1) intelligence collection priorities are identified by
national level officials, (2) priorities are communicated to
the collectors who collect this information through various human
and national technical means, (3) the analysis and evaluation
of this raw intelligence are converted into finished intelligence
products,( 4) finished intelligence products are disseminated
to consumers inside and outside the FBI and Department of Justice,
and (5) a feedback mechanism is created to provide collectors,
analysts and collection requirements officials with consumer
assessment of intelligence value. (See Figure 1,
below). To advance that effort, the Executive Assistant Director
for Intelligence (EAD-I) has developed and issued nine so-called
concepts of operations, which essentially constitute a strategic
plan identifying those areas in which changes must be made. These
changes are seen as necessary if the FBI is to successfully establish
an effective intelligence program that is both internally coordinated
and integrated with its Intelligence Community counterparts.
Source: http://www.fbi.gov/,
as altered by the Congressional Research Service
The FBI also is trying to improve and upgrade its functional
capabilities at each step along the cycle. Success may turn,
in part, on the performance of the new Office of Intelligence,
which has the responsibility to "... manage and satisfy needs
for the collection, production and dissemination of intelligence" within
the FBI and to ensure requirements "levied on the FBI by national,
international, state and local agencies" are met. (25)
FBI officials say their objective is to better focus intelligence
collection against terrorists operating in the U.S. through improved
strategic analysis that can identify gaps in their knowledge.
As will be addressed later in the "Issues for Congress" section,
the FBI faces numerous challenges as it formalizes its activities
in each element of the intelligence cycle.
Centralized Headquarters
Authority. Following September 11, Director Mueller
announced that henceforth, the FBI's top three priorities would
be counterterrorism, counterintelligence and cyber crime, respectively. (26) He
signaled his intention to improve the FBI's intelligence program
by, among other measures, consolidating and centralizing control
over fragmented intelligence capabilities, both at FBI Headquarters
and in the FBI's historically autonomous field offices. (27) He
restated that intelligence had always been one of the FBI's
core competencies (28) and
organic to the FBI's investigative mission, (29) and
asserted that the organization's intelligence efforts had and
would continue to be disciplined by the intelligence cycle
of intelligence requirements, collection, analysis, and dissemination.
Organizational Changes
The FBI is restructuring to support an integrated intelligence
program. The FBI director has also created new intelligence-related
positions and entities at FBI Headquarters and across its 56
field offices to improve its intelligence capacity.
New Position of Executive
Assistant Director for Intelligence (EAD-I) and the Office
of Intelligence. As part of his effort to centralize
control, Director Mueller established a new position -- the
EAD-I. (30) The
EAD-I manages a single intelligence program across the FBI's
four investigative/operational divisions -- counterterrorism,
counterintelligence, criminal, and cyber. Previously, each
division controlled and managed its own intelligence program.
To emphasize its new and enhanced priority, the Director also
elevated intelligence from program support to full program
status, and established a new Office of Intelligence (OI).
The OI is responsible for implementing an integrated FBI-wide
intelligence strategy, developing an intelligence analyst career
path, and ensuring that intelligence is appropriately shared
within the FBI as well as with other federal agencies. (31) The
Office also is charged with improving strategic analysis, implementing
an intelligence requirements and collection regime, and ensuring
that the FBI's intelligence policies are implemented. Finally,
the office oversees the FBI's participation in the Terrorist
Threat Integration Center (TTIC). (32)
The OI, headed by an Assistant Director who reports to the EAD-I,
is comprised of six units: (1) Career Intelligence (works to
develop career paths for intelligence analysts), (2) Strategic
Analysis (provides strategic analyses to senior level FBI executives),
(3) Oversight (oversees field intelligence groups), (4) Intelligence
Requirements and Collection Management (establishes and implements
procedures to manage the FBI intelligence process), (5) Administrative
Support, and (6) Executive Support. (33)
New Field Office Intelligence
Groups. The FBI has established field intelligence groups
in each of its 56 field offices to raise the priority of intelligence
and ultimately to drive collection, analysis and dissemination
at the local level. Each field intelligence group is responsible
for managing, executing and coordinating their local intelligence
resources in a manner which is consistent with national priorities. (34) A
field intelligence group is comprised of intelligence analysts, (35) who
conduct largely tactical analyses; special agents, who are
responsible for intelligence collection; and reports officers,
a newly created position. (36) Reports
officers are expected to play a key role by sifting raw, unevaluated
intelligence and determining to whom it should be disseminated
within the FBI and other federal agencies for further processing.
With regard to counterintelligence, which is any intelligence
about the capabilities, intent, and operations of foreign intelligence
services, or those individuals or organizations operating on
behalf of foreign powers, working against the U.S., the FBI has
established six field demonstration projects led by experienced
FBI retirees. These teams are responsible for assessing intelligence
capabilities at six individual field offices and making recommendations
to correct deficiencies. (37)
New National (and More
Regional) Joint Terrorism Task Force (s). In July 2002,
the FBI established a National Joint Terrorism Task Force (NJTTF),
which coordinates its nation-wide network of 84 Joint Terrorism
Task Forces (JTTFs). (38) The
NJTTF also coordinates closely with the FBI's newly established
Counterterrorism Watch, a 24-hour operations center, which
is responsible for tracking terrorist threats and disseminating
information about them to the JTTFs, to the Department of Homeland
Security's Homeland Security Operations Center and, indirectly,
to state and local law enforcement. CT Watch is located at
the FBI's 24-hour Strategic Intelligence Operations Center
(SIOC). (39) With
respect to regional JTTFs, the Bureau has increased their number
from 66 to 84, and the number of state and local participants
has more than quadrupled -- from 534 to over 2,300, according
to the FBI.
Participation in the
New Terrorist Threat Integration Center. President Bush
in his January 2003 State of the Union address announced the
establishment of the Terrorist Threat Integration Center (TTIC),
which is to issue threat assessments based on all-source intelligence
analysis. (40) The
TTIC is a joint venture comprised of a number of federal agencies
with counterterrorism responsibilities, and is directed by
a CIA-named official, and a deputy director named by the FBI.
The Center, formally established in May 2003, employs 150, eight
of whom are FBI analysts. When fully operational, in May 2004,
the Center anticipates employing 300 professionals, approximately
65 (22%) of whom will come from FBI ranks. Of 300 total staff,
56 are expected to be strategic analysts.
New Position of Executive
Assistant Director for Law Enforcement Services. As
will be discussed in more detail below, the FBI has been criticized
for failing to effectively share information with numerous
consumer sets, including other members of the Intelligence
Community, and state and local law enforcement authorities.
In order to address these concerns Director Mueller established
the EAD for Law Enforcement Services and under this new position,
created an Office of Law Enforcement Coordination. Staffed
by a former state police chief, the Office of Law Enforcement
Coordination, working with the Office of Intelligence, ensures
that relevant information is shared, as appropriate, with state
and local law enforcement.
Resource Enhancement and Allocation Changes
There are numerous changes the FBI has made or is in the process
of making to realize its intelligence goals. With the support
of Congress, the FBI's budget has increased almost 50% since
September 11, from $3.1 billion in FY2000 to $4.6 billion in
FY2004. (41) The
recently proposed FBI budget for FY2005 is $5.1 billion, including
an increase of at least $76 million for intelligence and intelligence-related
items. (42) According
to Maureen Baginski, EAD for Intelligence, this year the FBI
plans to hire 900 intelligence analysts, mostly in FBI field
offices. (43) With
the existing infusion of resources, the FBI is beefing up its
intelligence-related staff, as well as functions which are integral
to intelligence -- such as intelligence training, language translation,
information technology, and intelligence sharing.
More Special Agent Intelligence
Collectors. The FBI has increased the number of field
agents it is devoting to its three top priorities -- counterterrorism,
counterintelligence and cyber crime. According to the General
Accounting Office (GAO), (44) in
FY2004 the FBI allocated 36% of its agent positions to support
Director Mueller's top the three priorities -- counterterrorism,
counterintelligence and cyber crime -- up from 25% in FY2002.
This represents an increase of approximately 1,395 agent positions,
674 of which were permanently reprogrammed from existing FBI
drug, white collar, and violent crime programs. (45) From
a recruitment perspective, the FBI recently established "intelligence" as
a "critical skill need" for special agent recruitment. (46)
More Intelligence Analysts. The
FBI estimates that of the 1,156 analysts employed as of July
2003, 475 of them were dedicated to counterterrorism analysis. (47) Prior
to September 11, the FBI employed 159 counterterrorism analysts. (48) The
FBI requested and received an additional 214 analytical positions
as part of its FY2004 funding. (49) As
mentioned above, in calendar year 2004, the FBI intends to hire
900 analysts, many of whom will be stationed across its 56 field
offices. In an effort to convey that the FBI is attaching greater
importance to the role analysts play, the Office of Intelligence
has signaled to the FBI that analysts have a valid and valuable
role to play within the organization. (50) The
FBI, for the first time, is also attempting to establish a dedicated
career path for its intelligence analysts, and for the purposes
of promotion is now viewing its three types of analysts (formerly
the Intelligence Research Specialists and Intelligence Operations
Specialists, with the addition of a new category of employee,
Reports Officers) all as generic intelligence analysts. As will
be discussed more in-depth below, theoretically, all intelligence
analysts, whether assigned to Headquarters or to a field office,
will have promotion potential to the grade of GS-15 (non-managerial).
Until now, generally, at the non-managerial level, analysts assigned
to Headquarters had a promotion potential to the GS-14 level,
and those in the field were only allowed to reach the GS-12 level.
New recruitment standards, including the elimination of a requirement
for a bachelor's degree (51) and
a new cognitive ability testing process, have been developed.
Revamped Intelligence
Training. (52) The
FBI is revamping its training to reflect the role of intelligence.
The FBI has revised its new agent training, established a College
of Analytical Studies to train both new and more experienced
analysts and has plans to re-engineer its overall training
program. (53)
Specifically, the FBI is providing more intelligence training
for new special agents. New special agents undertake a 17 week,
680 hour training program when they enter the FBI. The amount
of time agents devote to studying National Foreign Intelligence
Program (NFIP) topics (54) --
principally Counterintelligence and Counterterrorism (55) --
in new agent training has increased from 28 hours (4.1% of total
training) to 80 hours (11.8% of total training). (56) As
part of this updated 680 hour curriculum for new agents, the
FBI has instituted a two-hour block of training devoted solely
to intelligence. Notwithstanding these changes, FBI officials
recognize they have made relatively little progress in integrating
intelligence into all aspects of new agent training.
The new training is intended to expose new employees to the
intelligence cycle -- requirements, collection, analysis, reporting
and dissemination -- and to how intelligence advances national
security goals. Agents also are taught how to use strategic and
tactical analysis effectively. (57)
All new analysts, or those new to the analytical function, are
required to take an introductory analytical training course when
they assume analytical responsibilities at the FBI. Historically,
the curriculum for this course -- recently renamed the Analytical
Cadre Education Strategy-I (ACES) so as to be "... more descriptive
and create a positive image for the training effort" (58) --
included a substantial amount of time dedicated to orienting
the new analyst to the FBI. According to FBI officials, this
course has recently been re-engineered to focus more directly
on intelligence, asset vetting, reporting writing, the Intelligence
Community, and various analytical methodologies. According to
FBI officials, more advanced intelligence analysis courses --
ACES II -- are in development.
Finally, the FBI plans to enhance training standardization and
efficiency by consolidating all training in the FBI's Training
Division. Historically, the FBI's National Foreign Intelligence
Program has developed and provided its own substantive intelligence
training programs. FBI analysts are also encouraged to avail
themselves of the many geographic and functional analytic courses
taught by other elements of the Intelligence Community.
Improved Technology. The
FBI says it recognizes the critical importance of improving its
antiquated information technology system, (59) so
that it can more effectively share information both internally
and with the rest of the Intelligence Community, and Director
Mueller has made it one of his top ten priorities. But the FBI's
technological center-piece -- the three-stage Trilogy Project
-- continues to suffer from delays and cost overruns. Although
the FBI has installed new hardware and software, and established
local and wide area communications networks, (60) Trilogy's
third, and perhaps most important component -- the Virtual Case
File system (intended to give analysts access to a new terrorism
database containing 40 million documents, and generally an improved
ease of information retrieval) -- remains behind schedule and
over budget. (61)
More Intelligence Sharing
Within the FBI. In the wake of the 1960s domestic intelligence
scandals (for further discussion, see Appendix 3)
various protective "walls" were put in place to separate criminal
and intelligence investigations. As a result of these walls,
information sharing between the two sets of investigators was "sharply
limited, overseen by legal mediators from the FBI and Justice
Department, and subject to scrutiny by criminal courts and
the secret Foreign Intelligence Surveillance Court." (62) The
FBI recently eliminated an internal barrier to communication
by allowing its criminal and intelligence investigators to
physically work together on the same squads. As part of a new
so-called Model Counterterrorism Investigations Strategy (MCIS),
all counterterrorism cases will be handled from the outset
like an intelligence or espionage investigation. (63)
Improved Intelligence
Sharing with Other Federal Agencies and State and Local Officials. The
FBI also has taken steps to improve its intelligence and information
sharing with other federal agencies as well as with state and
local officials. It has established an Executive Assistant
for Law Enforcement Services, who is responsible for coordinating
law enforcement with state and local officials through a new
Office of Law Enforcement Coordination. The FBI also has increased
dissemination of weekly intelligence bulletins to states and
localities as part of an effort to educate and raise the general
awareness of terrorism issues. And the FBI is increasing its
use of the National Law Enforcement Telecommunications System
and the National Criminal Information Center databases to disseminate
threat warnings and the identities of individuals the FBI has
listed on its Terrorist Watch List. (64) Other
information sharing enhancements -- each addressed earlier
-- include increasing the number of JTTFs and establishing
the new position of Reports Officer.
Issues for Congress
Assessing the effectiveness of the FBI's intelligence reforms
raises several potential issues for Congress. These include
- The FBI's new focus on centralized headquarters decision-making;
- Implementation challenges, including those in each area of
the Intelligence Cycle;
- Adequacy of resources to support reforms; and
The Role of Centralized Decision-Making in
Strengthening FBI Intelligence (65)
Some observers believe a major issue is whether the FBI's new
centralized management structure will provide the organization
with the requisite formal and informal authority to ensure that
its intelligence priorities are implemented effectively and efficiently
by FBI field offices. Historically, and particularly with respect
to the FBI's law enforcement activities, field offices have had
a relatively high degree of autonomy to pursue locally determined
priorities. A related issue is whether FBI employees will embrace,
or resist, FBI Headquarters' enhanced management role and its
new emphasis on intelligence.
Supporters Contend Centralized
Management Will Help Prevent Terrorism by Improving FBI's Intelligence
Program. Supporters argue that a centralized management
structure is an essential ingredient of a counterterrorism
program, because it will enable the FBI to strengthen its intelligence
program, establish intelligence as a priority at FBI field
offices and improve headquarters-field coordination.
According to proponents, FBI Director Mueller has centralized
authority by making four principal structural changes. He has
established (1) a new position of Executive Assistant Director
for Intelligence (EAD-I); (2) created a new Office of Intelligence
to exercise control over the FBI's historically fragmented intelligence
program; (3) established a National Joint Terrorism Task Force;
and (4) established intelligence units in each field office to
collect, analyze and disseminate intelligence to FBI Headquarters.
Supporters contend that by centralizing decision-making, the
FBI will be able to address several critical weaknesses which
the JIC Inquiry attributed to decentralized management.
First, a central management structure will enable the FBI to
more easily correlate intelligence, and thereby more accurately
assess the presence of terrorists in the U.S. Second, the FBI
will be able to strengthen its analysis capabilities, particularly
with regard to strategic analysis, which is intended to provide
a broader understanding of terrorist threats and terrorist organization.
Third, FBI Headquarters will be able to more effectively fuse
and share intelligence internally, and with other IC agencies.
Finally, centralized decision-making will provide FBI Headquarters
a means to enforce intelligence priorities in the field. Specifically,
it provide a means for FBI Headquarters to ensure that field
agents spend less time gathering information to support criminal
prosecutions -- a legacy of the FBI's law enforcement culture
-- and more time collecting and analyzing intelligence that will
help prevent terrorist acts.
Supporters contend that employees are embracing centralized
management and the FBI's new intelligence priorities, but caution
it is premature to pronounce centralized management a success.
Rather, they suggest that, "with careful planning, the commitment
of adequate resources and personnel, and hard work, progress
should be well along in three or four years," (66) but
concede that, "we're a long way from getting there." (67)
Skeptics Agree Strong
Intelligence Essential, But Question Whether Centralized Decision-Making
Will Improve Program. Skeptics agree that if the FBI
is to prevent terrorism, it must strengthen its intelligence
program, establish intelligence as a priority at FBI field
offices and improve headquarters-field coordination. But they
question whether centralizing decision-making at FBI Headquarters
will enable the FBI to accomplish these goals, and they cite
two principal factors which they suggest will undermine the
impact of centralized decision making. They question whether
any structural management changes can (1) change a vested and
ingrained law enforcement culture, and (2) overcome the FBI's
lack of intelligence experience and integration with the Intelligence
Community.
Skeptics Believe FBI's Law Enforcement
Culture Will Prove Impervious to Centralized Decision-Making. Skeptics
assert that the FBI's entrenched law enforcement culture
will undermine its effort to establish an effective and efficient
intelligence program by centralizing decision-making at FBI
Headquarters. They point to the historical importance that
the FBI has placed on convicting criminals -- including terrorists.
But those convictions have come after the fact, and skeptics
argue that the FBI will continue to encounter opposition
within its ranks to adopting more subtle and somewhat unfamiliar
intelligence methods designed to prevent terrorism. Former
Attorney General Janet Reno, for example, reportedly "leaned
toward closing down surveillance under the Foreign Intelligence
Surveillance Act (FISA) if they hindered criminal cases." (68) As
one observer said, "law enforcement and intelligence don't
fit ... law enforcement always wins." (69)
Some observers speculate that one reason law enforcement priorities
prevail over those of intelligence is because convictions that
can disrupt terrorist planning in advance of an attack often
are based on lesser charges, such as immigration violations.
FBI field personnel therefore may conclude that they should focus
more effort on prosecuting criminal cases that result in longer
jail terms. (70) Observers
also suggest that because of the importance attached to successful
criminal prosecutions, to the extent intelligence is used, it
will be used to support criminal investigations, rather than
to learn more about potential counterterrorism targets. (71)
Skeptics are convinced that the FBI's law enforcement culture
is too entrenched, and resistant to change, to be easily influenced
by FBI Headquarters directives emphasizing the importance of
intelligence in preventing terrorism. They cite the Gilmore Commission,
which concluded:
... the Bureau's long-standing traditional
organizational culture persuades us that, even with the best
of intentions, the FBI cannot soon be made over into an organization
dedicated to detecting and preventing attacks rather than one
dedicated to punishing them. (72)
Skeptics Also Question Whether Centralized
Decision-Making Can Overcome FBI's Lack of Intelligence Experience. Skeptics
assert that the FBI's inexperience in the intelligence area
has caused it to misunderstand the role intelligence can
play in preventing terrorism, and they question whether centralized
decision-making can correct this deficiency.
Specifically, they contend the FBI does not understand how to
collect intelligence about potential counterterrorism targets,
and properly analyze it. Instead, skeptics argue that notwithstanding
the FBI's current efforts to develop detailed collection requirements,
FBI agents will likely continue to "gather" evidence to support
criminal cases. Moreover, skeptics argue, the FBI will undoubtedly "run
faster, and jump higher," in gathering even more information
at the urging of FBI Headquarters to "improve" intelligence. (73) Missing,
however, according to critics, is the ability to implement successfully
a system in which intelligence is collected according to a strategically
determined set of collection requirements that specifically target
operational clandestine activity. These collection requirements
in turn must be informed by strategic analysis that integrates
a broader understanding of terrorist threats and known and (conceptually)
unknown gaps in the FBI's intelligence base. Critics fear that
FBI analysts, instead, will continue to spend the bulk of their
time providing tactical analytic support to FBI operational units
pursuing cases, rather than systematically and strategically
analyzing all-source intelligence and FBI intelligence gaps.
Implementation Challenges
The FBI is likely to confront significant challenges in implementing
its reforms. Its most fundamental challenge, some assert, will
be to transform the FBI's deeply entrenched law enforcement culture,
and its emphasis on criminal convictions, into a culture that
emphasizes the importance that intelligence plays in counterterrorism
and counterintelligence. Although observers believe that FBI
Director Mueller is identifying and communicating his counterterrorism
and intelligence priorities, they caution that effective reform
implementation will be the ultimate determinant of success. The
FBI, they say, must implement programs to recruit intelligence
professionals with operational and analytical expertise; develop
formal career development paths, including defined paths to promotion;
and continue to improve information management and technology.
These changes, they say, should be implemented in a timely fashion,
as over two and a half years have passed since the attacks of
September 11, 2001. They also contend the FBI must improve intelligence
sharing within the FBI and with other IC agencies, and with federal,
state and local agencies.
Technology. Inadequate
information technology, in part, contributed to the FBI being
unable to correlate the knowledge possessed by its components
prior to September 11, according to the congressional joint inquiry. (74) GAO
and the Department of Justice Office of Inspector General reports
conclude that the FBI still lacks an enterprise architecture,
a critical and necessary component, they argue, to successful
IT modernization. (75) In
addition to lacking an enterprise architecture plan, according
to the GAO, the FBI has also not had sustained information technology
leadership and management. To demonstrate this point, a recent
GAO report found the FBI has had five Chief Information Officers
in the last 2003-2004, and the current CIO is temporarily detailed
to the FBI from the Department of Justice. (76)
One important manifestation of the FBI's historical problems
with information management is the deleterious effects it has
had on analysis. For numerous information technology reasons,
it has historically been difficult for FBI analysts at Headquarters,
whose primary responsibility is to integrate intelligence from
open sources, FBI field offices and legal attaches, and other
entities of the U.S. Intelligence Community, to retrieve in a
timely manner intelligence which should be readily available
to them. Among other factors, this is the result of lack of appropriate
information management and technology tools and, to a lesser
extent, the lack of uniform implementation of policies relating
to information technology usage.
Technology alone is not, however, a panacea. Existing information
technology tools must be uniformly used to be effective. One
FBI official responsible for intelligence analysis stated before
the Joint Inquiry that "... Information was sometimes not made
available (to FBI Headquarters) because field offices, concerned
about security or media leaks, did not upload their investigative
results or restricted access to specific cases. This, of course,
risks leaving the analysts not knowing what they did not know." (77)
As mentioned above, supporters say that Director Mueller recognizes
the important role technology must play in his reforms, and that
despite setbacks to the Trilogy technology upgrade, the Director
is making important progress. (78) However,
the third and arguably most important stage of the Trilogy technology
update, the deployment of the aforementioned Virtual Case File
system, did not meet its December 2003 deadline. Moreover, according
to the Department of Justice Office of Inspector General, as
of January 2003, the FBI confirmed the Inspector General's assessment
that an additional $138 million (over the then estimated requirement
of $458 million) would be necessary to complete the Trilogy project. (79) This
would bring the total cost of the Trilogy update to $596 million.
FBI Field Leadership. An
important issue is whether the FBI's field leadership is able
and willing to support Director Mueller's reforms. Critics argue
that the lack of national security experience among the existing
cadre of Special Agents-in-Charge (SACs) of the FBI's field offices
represents a significant impediment to change. According to one
former senior FBI official, "... over 90 percent of the SACs
have very little national security experience ...." (80) He
suggested that lack of understanding and experience would result
in continued field emphasis on law enforcement rather than an
intelligence approach to terrorism cases.
Supporters counter that Director Mueller has made it inalterably
clear that his priorities are intelligence and terrorism prevention.
Some SACs who have been uncomfortable with the new priorities
have chosen to retire. But critics also contend that it will
require a number of years of voluntary attrition before field
leadership more attuned to the importance of intelligence is
in place.
Lack of Specific Implementation
Plans and Performance Metrics. Another issue is whether
the FBI is effectively implementing its reforms and has established
appropriate benchmarks to measure progress. Critics assert
that although the FBI developed various concepts of operations
to improve its intelligence program, in many cases it lacks
specific implementation plans and benchmarks. The Department
of Justice Inspector General has recommended that "an implementation
plan that includes a budget, along with a time schedule detailing
each step and identifying the responsible FBI official" (81) be
drafted for each concept of operations.
Supporters say that the FBI recognizes the need for specific
implementation plans and is developing them. They cite as an
example the implementation plan for intelligence collection management,
almost half of which they estimate is in place. (82)
Funding and Personnel
Resources to Support Intelligence Reform. Prior to September
11, FBI analytic resources -- particularly in strategic analysis
-- were severely limited. The FBI had assigned only one strategic
analyst exclusively to Al-Qaeda prior to September 11. (83) Of
its approximately 1,200 intelligence analysts, 66% were unqualified,
according to the FBI's own assessment. (84) The
FBI also lacked linguists competent in the languages and dialects
spoken by radicals linked to Al-Qaeda. (85)
Some supporters argue that appropriate resources now are being
allocated to reflect the FBI's new intelligence priorities. "Dollars
and people are now flowing to the FBI's most critical needs ...
This trend is clearly reflected in the FBI's requested resources
for FY2004," (86) according
to former Attorney General Richard Thornburgh, who said intelligence
analytic support, particularly for counterterrorism, has improved
substantially. (87) As
mentioned above, the Department of Justice is requesting at least
$76 million in support of intelligence and intelligence-related
programs for FY2005.
Supporters of the ongoing FBI intelligence reform describe a "dramatic
increase" in intelligence analysts, both at headquarters and
in the field -- from 159 in 2001, to 347 planned in 2003, and
that an initial cadre of about a dozen analysts is supporting
TTIC . (88) Moreover,
as mentioned above, the FBI intends to hire 900 intelligence
analysts in 2004. Supporters also point to the Daily Presidential
Threat Briefings the FBI drafts, and 30 longer-term analyses
and a comprehensive national terrorist threat assessment that
have been completed. (89) But
even supporters caution that institutional change now underway
at the FBI "does not occur overnight and involves major cultural
change." (90) They
estimate that with careful planning, the commitment of adequate
resources and personnel, and hard work, the FBI's "transformation" will
be well along in three to five years, though it will take longer
to fully accomplish its goals. (91)
GAO presents a more mixed assessment. According to GAO: "The
FBI has made substantial progress, as evidenced by the development
of both a new strategic plan and a strategic human capital plan,
as well as its realignment of staff to better address the new
priorities." Notwithstanding this progress, however, the GAO
concluded "...an overall transformation plan is more valuable..." than "cross
walks" between various strategic plans. (92) GAO
also reports that 70% of the FBI agents and 29 of the 34 FBI
analysts who completed its questionnaire said the number of intelligence
analysts was insufficient given the current workload and priorities. (93) As
a result, many field agents said they have no choice but to conduct
their own intelligence analysis. Despite a lack of analysts apparent
before September 11, if not after, the FBI did not establish
priority hiring goals for intelligence analysts until 2003. (94) According
to GAO, the FBI was well on its way to meeting its target of
126 new analytic hires in 2003 -- having hired 115 or 91%. (95)
The mix of analytic hires also is critical. But, according to
GAO, the FBI lacks a strategic human capital plan, making it
difficult to determine whether the FBI is striking an effective
balance in its analytic core. (96) It
also is difficult to assess whether the FBI is providing sufficient
institutional support, the appropriate tools, and incentive system
for these resources to be harnessed effectively in pursuit of
its priority national security missions-counterterrorism and
counterintelligence.
Skeptics of the ongoing FBI intelligence reform argue -- and
supporters concede -- that this is not the first time the FBI
has singled out intelligence for additional resources. The FBI
did so in the wake of the 1993 World Trade Center bombing and
the 1995 Oklahoma City bombing, only to allow those resources
to revert to the FBI's traditional priorities -- violent and
organized crime, drug trafficking, and infrastructure protection.
Additional intelligence analysts also were hired, but they were
viewed as poorly trained, limited in experience, and lacking
in needed information technology tools. They also were easily
diverted to support the FBI's traditional anti-crime operations, (97) even
though efforts were made during the intervening years to protect
resources intended to support the agency's national security
efforts, including intelligence. (98)
Changes in The Intelligence
Cycle. As the FBI attempts to formalize its intelligence
cycle, it will likely face challenges in each element of the
intelligence cycle. Incomplete or ineffective implementation
in any one element of the cycle detracts from the overall system's
effectiveness.
Will the Changes in the Collection
Requirements Produce Desired Results? The FBI's
new Office of Intelligence is establishing an internal intelligence
requirements mechanism that will be part of an integrated
IC national requirements system. Supporters of establishing
this mechanism maintain that the FBI has outlined a rational
process for managing collection requirements. According to
FBI officials, the FBI is developing for each of its investigative/operational
programs a detailed set of priority intelligence collection
requirements. These requirements will be disseminated to
FBI field offices through a classified FBI Intranet.
Skeptics question whether the FBI can overcome its historic
lack of experience with a disciplined foreign intelligence requirements
process. The FBI, they argue, traditionally has viewed domestic
collection of foreign intelligence as a low priority "collateral" function,
unless it helped solve a criminal case. And dissemination of
any domestically collected foreign intelligence tended to be
ad hoc.
Skeptics point to four hurdles that the FBI may have trouble
surmounting. First, given that traditional intelligence tasking
from the Intelligence Community to the FBI has generally been
vague and voluminous; the FBI, they say, must be able to strike
a balance between directing its collectors to answer questions
that are either too nebulous or too specific. Questions that
are overly vague can go unanswered for lack of direction. On
the other hand, collection requirements that are too specific
risk reducing intelligence to a formulaic science, when most
analysts would agree the intelligence discipline is more art
than science. In the final analysis, while appropriately drafted
intelligence collection requirements are an essential element
in the intelligence cycle, there is no substitute for experienced
intelligence professionals who are capable of successfully collecting
intelligence in response to the requirements. Second, they say,
the FBI will need to dedicate appropriate resources to managing
a requirements process that could easily overwhelm Headquarters
and field intelligence staff with overlapping and imprecise requests
for intelligence collection. Third, they say, the FBI will have
to significantly upgrade its cadre of strategic analysts, who
will play a critical role in identifying intelligence gaps. Fourth,
they say, the FBI will have to support its requirements process
with incentives and disincentives for agent intelligence collectors
so that requirements are fulfilled. Enhanced performance of the
intelligence requirements process depends largely on the accumulated
successes the FBI has in each of these areas. Incomplete or ineffective
implementation in any one element of the cycle detracts from
the overall system's effectiveness.
Are Changes in Collection Techniques
Adequate? Both supporters and skeptics of the adequacy
of FBI's reforms agree that collecting intelligence by penetrating
terrorist cells is critical to disrupting and preventing
terrorist acts. Supporters argue that the FBI has a long
and successful history of such penetrations when it comes
to organized crime groups, and suggest that it is capable
of replicating its success against terrorist cells. They
assert that the FBI has had almost a century of experience
recruiting and managing undercover agents and informers,
and that it long ago mastered collection techniques such
as electronic surveillance and witness interviews. They also
argue that the FBI can uniquely use both money and the threat
of prosecution to induce cooperation in recruiting human
source assets. (99) They
also cite as evidence of the FBI's commitment to improving
its human intelligence collection the organization's recent
deployment of six teams to "...examine ways to expand the
FBI's human intelligence base and to provide additional oversight." (100)
Skeptics are not so certain. They say recruiting organized crime
penetrations differs dramatically from terrorist recruiting.
As one former senior level intelligence official put it, "It's
one thing to recruit Tony Soprano, yet quite another to recruit
an al Qaeda operative." (101) This
official was alluding to the fact that terrorist groups may have
different motivations and support networks than organized crime
groups. (102) Moreover,
terrorist groups may be less willing than organized crime enterprises
to accept as members or agents individuals who they have not
known for years and are not members of the same ethnocentric
groups, or whose bona fides are not directly supported by existing
members of the group.
As alluded to above, skeptics also argue that while the FBI
is good at gathering information, it has little experience collecting
intelligence based on a policy driven, strategically determined
set of collection requirements. (103) As
one observer commented:
While the FBI correctly highlights
its unmatched ability to gather evidence and with it information,
there is nonetheless a National Security imperative which distinguishes
intelligence collection from a similar, but different, function
found in law enforcement. "Gathering" which is not driven [and]
informed by specific, focused, National Security needs is not
the same as "intelligence collection"... which means intelligence
activities which are dictated by, and coupled to, a policy
driven, strategically determined set of collection requirements. (104)
Critics assert that the FBI's criminal case approach to terrorism
produces a vacuum cleaner approach to intelligence collection.
The FBI, they say, continues to collect and disseminate interesting
items from a river of intelligence when, instead, it should focus
collection on those areas where intelligence indicates the greatest
potential threat. (105) But
critics contend that there are few evident signs that the FBI
has adopted such an approach. "They are jumping higher, faster," but
not collecting the intelligence they need, according to one critic. (106) As
a result, critics maintain, the process turns on serendipity
rather than on a focused, directed, analytically driven requirements
process. Another observer put it this way:
Using the metaphor "finding the
needle in the haystack," since September 11 government agencies
have been basically adding more hay to the pile, not finding
needles. Finding the needles requires that we undertake more
focused, rigorous and thoughtful domestic intelligence collection
and analysis not collect mountains of information on innocent
civilians.
(107)
Skeptics also question whether the FBI is prepared to recruit
the type of individual needed to effectively collect and analyze
intelligence. The FBI's historic emphasis on law enforcement
has encouraged and rewarded agents who gather as many facts as
legally possible in their attempt make a criminal case. Because
a successful case rests on rules of criminal procedure, the FBI
draws largely from the top talent in state and local law enforcement
agencies, and the military; in short, some say, those individuals
who focus on discrete facts rather than on the connections between
them. (108)
Perhaps as fundamental to the collection of more targeted human
intelligence is the implementation of a formal asset vetting
program to assess the validity and credibility of human sources,
according to informed observers, who note that only three to
four percent of the FBI's human assets are vetted. (109) They
point out the failure to effectively vet its human assets has
contributed to serious problems in the FBI's criminal and national
foreign intelligence programs. (110)
Supporters contend that the FBI is currently implementing its
national intelligence collections requirements concept of operations,
and so it may be premature to assess effectiveness. Critics contend,
however, that it remains unclear what specific performance metrics
the FBI is employing to measure the effectiveness of its collection.
They say that when asked to assess its performance in the war
on terrorism, the FBI continues to cite arrests and convictions
of suspected terrorists. (111) They
further contend that the FBI rarely cites the number of human
sources recruited who have provided information essential to
counterterrorism or counterintelligence as a performance metric. (112)
Are Analytical Capabilities Sufficient? Some
observers contend that the FBI has made notable progress in professionalizing
its analytical program since September 11, and, indeed, over
the past two decades. During this period, they assert that the
FBI's analytic cadre, particularly at Headquarters, has evolved
from a disjointed group of less than qualified individuals into
a group of professionals which understands the role analysis
plays in advancing national security investigations and operations.
The majority of intelligence analysts at Headquarters possesses
advanced degrees and has expert knowledge in various functional
and geographic areas. Over the last two decades, they also cite
the FBI's progress in internally promoting analysts to analytic
management positions.
Supporters of Director Mueller's reforms also point to the new
Office of Intelligence, and maintain that it is implementing
a number of initiatives focused on improving the quality of analysis.
They include a new promotion plan that will provide analysts
GS-15 promotion opportunities (they now are capped at GS-14);
new career development plans; an increased flexibility to continue
working in their areas of expertise or to rotate to other functional,
geographic or management positions; improved mid-career training;
and improved and more standardized recruitment practices. They
assert that these efforts will improve retention rates, a chronic
problem. (113)
Critics, however, remain largely unpersuaded and argue that
analysis remains a serious FBI vulnerability in the war on terrorism.
The Congressional Joint Inquiry on September 11 urged the FBI,
among other steps, to
... significantly improve strategic
analytical capabilities by assuring qualification, training,
and independence of analysts coupled with sufficient access
to necessary information and resources. (114)
Although they applaud the FBI's new focus on analysis, critics
question its effectiveness and point to a number of trends. For
example, they cite the continuing paucity of analysts in the
FBI's senior national security ranks, even more than two years
after the September 11 attacks. This, they say, reflects the
FBI's continuing failure to treat analysis as a priority and
more fundamentally to understand how to leverage analysis in
the war on terror. (115) They
also point to the FBI's own internal study that found 66 percent
of its analytic corps unqualified and question whether the FBI's
changes are sufficiently broad to address this legacy problem. (116)
Critics support the new GS-15 promotion plan, but contend that
implementation is lacking and that it falls short of senior executive
service promotion which they advocate. (117) According
to an FBI official, there are currently no FBI intelligence analysts
at the non-managerial GS-15 grade level. They also are concerned
that the FBI has eliminated the requirement that all new intelligence
analysts possess a minimum of a bachelor's degree, and substituted
instead a less rigorous requirement, in their view, of one year
of analytic experience, or military or law enforcement employment.
They insist that a bachelor's degree provides more formal and
necessary academic training in research methodologies, written
and oral communication and critical thinking. Moreover, according
to some critics, the collapsing of all functional and cross-disciplinary
analysts into one intelligence analyst position encourages a "one
size fits all" approach to analysis that may undermine a need
for functional, geographic and target-specific expertise. (118)
Finally, critics are concerned that although the FBI says it
is trying to strengthen strategic analysis, it is failing to
commit adequate resources. The new Office of Intelligence has
a Strategic Intelligence Unit, but more in name only, according
to some observers. Few analysts have been assigned to the unit,
and those who have are being forced to balance management and
executive briefing responsibilities with actually conducting
strategic analysis. Further complicating the situation is the
fact that tactical and strategic analysts still physically located
in each of the FBI's operational divisions are now "matrixed" to
the Office of Intelligence. That is, they report both to their
own divisions and to the Office of Intelligence. Therefore, they
potentially confront competing priorities -- analysis largely
composed of briefing materials to support FBI executives, and
tactical analyses to support ongoing cases. (119)
Are Efforts to Improve Intelligence
Sharing Adequate? The FBI continues to be criticized
for not sharing information -- a failure that variously has
been blamed on a variety of shortcomings, including culture,
an absence of information sharing strategy, technological
problems, and legal and policy constraints. Some of the legal
and policy constraints were eliminated by the USA PATRIOT
Act. (120) And
more recently, by a decision to allow criminal and intelligence
investigators to work side by side. (121)
FBI supporters give the FBI high marks since the September 11th
attacks for sharing threat information, building information
bridges to the intelligence agencies and state and local law
enforcement, collaborating with foreign law enforcement components,
and opening itself up to external reviewers. (122) But
even supporters believe that maintaining this commendable record
will be a continuing management challenge, one which will require
constant reinforcement. (123) They
emphasize that the traditional values of FBI agents as independent
and determined must give way to include values of information
sharing and cooperation. (124)
Sharing within FBI: Some Improvements. Supporters
argue that perhaps the most significant change -- a sea change,
according to some -- is a recent decision to tear down the organizational
wall that has separated criminal and intelligence investigations
since the spying scandals of the 1960s. (125) As
a result, criminal and intelligence investigators will now physically
work as part of the same squads on terrorism investigations.
All counterterrorism cases will be handled from the outset like
intelligence or espionage investigations, allowing investigators
to more easily use secret warrants and other methods that are
overseen by the surveillance court and are unavailable in traditional
criminal probes. The FBI was able to do so as a result of the
USA PATRIOT Act, which allows counterterrorism intelligence and
criminal information to be more easily shared within the FBI. (126)
Supporters blame Congress for creating the wall in the first
place. They assert that in the wake of the 1960s spy scandals,
Congress weakened the FBI's domestic intelligence capabilities
by imposing stricter standards. The result, they argue, was a
dangerous lack of intelligence sharing. (127) According
to the FBI, the recent change has resulted in the disruption
of at least four terrorist attacks overseas and the uncovering
of a terrorist sleeper cell in the United States. (128)
Although these changes undoubtedly will improve intelligence
sharing between FBI's criminal and intelligence components, the
question remains whether the information will be shared with
other agencies and state and local law officials. Some critics
do not dispute that Director Mueller's decision will enhance
intelligence sharing within the FBI. They agree it will. Rather,
they are concerned that more innocent people will become the
targets of clandestine surveillance. (129)
Supporters Say Sharing, Internally and
With Other Agencies, Is Improving For Additional Reasons. Advocates
assert intelligence sharing, both internally and with other
agencies is improving for other reasons -- the FBI is better
training its personnel and providing them with improved sharing
processes. In addition, they point to the FBI's new concept
of operations for intelligence dissemination that collapses
a number of current and different production processes into
a single one that will be imbedded throughout the FBI. (130) Supporters
also point favorably to Director Mueller's decision to establish
the position of "Reports Officers," whose responsibility will
be to extract pertinent intelligence from FBI collection and
analysis and disseminate it to the widest extent possible.
Supporters who believe that sharing with state and local authorities
has improved point out that since September 11, the number
of Joint Terrorism Task Forces, which are the principal link
between the Intelligence Community and state and local law
enforcement officials, has increased from 66 in 2001 to 84
in 2003. The number of state and local participants has more
than quadrupled from 534 to over 2,300, according to the FBI.
Supporters also finally embrace Director Mueller for correctly
emphasizing technology that emphasizes horizontal, rather than
vertical, flow of information to produce better results. Director
Mueller asserts that, "Our move to change the technology in the
next two or three years will have a dramatic impact on the way
we do business -- eliminating a lot of the bureaucratic hang-ups,
giving the agents the tools they need to be interactive, pass
among themselves the best ways of doing things and we will free
up the FBI in a substantial number of ways." (131)
Critics Still Point to Number of Troubling
Signs on Sharing. The FBI concedes that although it "...
has always been a great collector of information," its "sharing
of information was primarily case oriented rather than part
of an enterprise wide activity." (132) Critics
point to a number of troubling signs that they claim indicate
continuing problems. According to the Gilmore Commission, the
Federal government is far from perfecting a system of sharing
national security intelligence and other information. Moreover,
the flow of information remains largely one way -- from the
local and state levels to the FBI. The prevailing view, according
to the Commission, continues to be that the Federal Government
likes to receive information but is reluctant to share it completely.
One local law enforcement official said the FBI's intelligence
sharing practices remain essentially unchanged since September
11. This official suggested that the FBI shares a great volume
of threat information, but little of real value that would
help state and local officials prevent terrorist attacks. (133) Another
state office said, "We don't get anything (of value) from the
FBI." (134)
Some skeptics argue that technology problems notwithstanding,
willingness to share intelligence, both within the FBI and with
other Intelligence Community agencies, remains a continuing problem.
According to a recent report issued by the Markle Foundation,
there has been only marginal improvement in the past year in
the sharing of terrorist-related information between relevant
agencies, including the FBI. The report states that sharing remains
haphazard and still overly dependent on the ad hoc network of
personal relations among known colleagues. It is not the result
of a carefully considered network architecture that optimizes
the abilities of all of the players, according to the report. (135)
The Markle report argues that the existing system of counterterrorism
information sharing remains too centralized, federal government-centric,
and bound by increasingly tenuous distinctions in U.S. regulations
and law regarding domestic and foreign intelligence. (136) In
order to combat a decentralized terrorist threat more effectively,
Markle recommends a model of information sharing which runs counter
to the existing "hub and spoke" information sharing model the
FBI is building. Advocates envision a decentralized "peer-to-peer" network
in which the various federal, state, local and private sector
entities systematically collecting information relevant to counterterrorism,
and according to established guidelines protecting civil liberties
and privacy, share that information directly with one another. (137)
The Department of Justice's Office of Inspector General, recently
reported that despite progress in terrorism information sharing,
the FBI faces considerable impediments in establishing an effective
information and intelligence sharing program, including changes
to information technology constraints, ongoing analytical weaknesses,
agency origination control procedures, (138) and
lack of "... established policies and procedures that delineate
the appropriate processes to be used to share information and
intelligence, either internally or externally." (139)
Some State and Local Officials Also Remain
Dissatisfied With Level of Sharing. Some state and local
law enforcement officials continue to criticize what they characterize
as FBI's continuing unwillingness to share intelligence, while
expecting state and local law officials to share their information
with them. Nevertheless, some state and local law enforcement
officials concede that there has been some improvement in the
sharing relationship since September 11. And there also is
a growing recognition among some state and local law enforcement
officials that "... there may be a mis-perception that the
FBI has more detailed accurate or confirmed information than
it actually has." (140)
While acknowledging some improvement, these officials insist
the exchange of information remains largely one-way. (141) And
although that hasn't prevented them from participating in their
local JTTFs, one official said he believed that the FBI did not
consider him an intelligence consumer. (142) According
to another, the FBI has shared information through the JTTF but
made clear it was doing so because "...he has a right to know,
but not a need to know," and that the FBI told him not to share
the information with anyone else in law enforcement or state
government, including the governor, who, he said, possesses a
Top Secret clearance. (143)
Some state and local law enforcement officials complain that
although JTTFs are intended to be joint enterprises, combining
federal, state and local law enforcement resources, they characterize
the relationship as more of one of "co-habitation" where the
FBI clearly is in charge and non-federal representatives are
viewed as second tier participants, despite often having greater
knowledge of a particular case. (144)
With respect to the case-orientation and law enforcement bias
so often mentioned as challenges for the FBI as it shifts to
having a more preventative bias, state and local law enforcement
officials stated that notwithstanding recognition by FBI leadership
that the "intelligence is in the case," the FBI agent on the
street still starts with a case and has a bias in the direction
of law enforcement. Moreover, one senior state law enforcement
official stated that FBI leadership is "... still being led by
individuals who have a criminal law mindset." (145)
Some States Have Suggested Alternate Sharing
Procedures. Some state and local law enforcement officials
are sufficiently displeased with the current sharing relationship
that they have proposed that the Department of Homeland Security
establish regional intelligence centers through which classified
raw and finished foreign intelligence on terrorism could be
disseminated. (146) The
centers would be staffed by a cadre of Top Secret-cleared personnel
drawn principally from State Police and State DHS Offices and
would serve as "... regional repository and clearinghouse for
terrorist related information gathered at the federal level,
consisting of trends, indicators, and warnings." (147) Through
a pending arrangement with the DHS, Directorate of Information
Analysis and Infrastructure Protection (IAIP), the goal would
be to "... create a national pipeline for pattern and trend
analysis of terrorism intelligence," (148) at
the state level. DHS has not acted on the proposal. (149)
Congressional Oversight Issues
The U.S. Senate and House of Representatives each established
intelligence oversight committees in the 1970s. The catalyst
for the creation of these committees was public revelations resulting
from press coverage and congressional investigations that the
Intelligence Community had conducted covert assassination attempts
against foreign leaders, and collected information concerning
the political activities of some U.S. citizens during the late
1960s and early 1970s. (150) Intelligence
Committee Members are selected by the majority and minority leadership
of each chamber of Congress, and serve terms of eight years on
the Senate Select Committee on Intelligence and six years on
the House Permanent Select Committee on Intelligence. Terms limited
were established so that a greater number of Members could become
knowledgeable on intelligence matters over time. Membership rotation
was also viewed as the best way to maintain a flow of new ideas.
Committee membership was also structured so that Members serving
on other committees with interests in intelligence issues --
the Appropriations, Armed Services, Judiciary, and Committee
on Foreign Relations (Senate) and Committee on International
Relations (House) -- would be represented. Finally, in the Senate,
the majority was given a one-vote, rather than a proportional
margin, to ensure bipartisanship. The House apportions its membership
using the traditional proportional method.
One oversight issue is whether the current congressional structure
is sufficiently focused to monitor effectively the FBI's intelligence
reforms. In the wake of the September 11 terrorist attacks, the
FBI has been criticized for failing to more effectively collect,
analyze and disseminate intelligence. The congressional committees
principally responsible for conducting FBI oversight -- the Intelligence,
Judiciary and Appropriations Committees -- on the other hand,
have been subject to little or no criticism. (151) Some
critics argue that those responsible for conducting oversight
should be held accountable as well. They have questioned the
diligence of the committees and, in the case of the Intelligence
Committees, the committees' structure. (152)
Ellen Laipson, former director of the National Intelligence
Council (1997-2002) suggests while the balance between intelligence
collection and analysis is unlikely to be corrected soon:
What are needed are more radical
steps to dismantle the bloated bureaucratic behavior of the
large agencies and retool most employees to contribute more
directly to the intelligence mission. The fault lies both with
Congress and with the intelligence community's bureaucrats.
This is not an argument for less collection, but perhaps less
collection management, less complicated requirements process,
and more priority given to a workforce whose productivity is
measured in terms of output, of more useful processing of data,
and creation of more analytic product. It seems that even the
best intentioned intelligence community leaders cannot effect
this change alone; a serious push by the oversight process
and the senior customers must take place.
(153)
At the same time, GAO recommends that continuous internal and
independent external, monitoring and oversight are essential
to help ensure that the implementation of FBI reforms stays on
track and achieves its purpose. "It is important for Congress
to actively oversee the proposed transformation." (154)
Oversight Effectiveness. According
to Representative David Obey, congressional oversight, at times,
has been "miserable."
I've been here 33 years and I have
seen times when Congress exercised adequate oversight, with
respect to [the FBI], and I've seen times when I thought Congress'
actions in that regard were miserable ... I can recall times
when members of the committee seemed to be more interested
in getting the autographs of the FBI director than they were
in doing their job asking tough questions. And I don't think
the agency was served by that any more than the country was.
And I hope that over the next 20 years we'll see a much more
consistent and aggressive oversight of the agency, because
your agency does have immense power. (155)
Some observers agree, and have singled out the oversight exercised
by the two congressional intelligence committees for particular
criticism. According to Loch Johnson, a former congressional
staff member and intelligence specialist at the University of
Georgia, "They [the intelligence committees] didn't press hard
enough [with regard to 9/11]. There's all the authority they
need. They didn't press hard enough [for change]." Another observer
commented, "They should be held as accountable as the intelligence
agencies." (156)
Some Members of Congress, however, contend that the congressional
committees have their limits. "Our job is to see that the agencies
are focused on the right problems as we think them to be and
they have the capabilities to meet those mission requirements," former
Senate Intelligence Committee Chairman Bob Graham is reported
to have said. (157) One
of Graham's predecessors seems to agree. "We can legislate, but
there is little we can do to compel compliance," according to
a press account of former Chairman Senator Richard Shelby, who
said the committees face an unacceptable choice from a security
standpoint when it comes to fencing spending in an effort to
force change. (158)
"As you examine the record, you will discover numerous examples
of complete disregard for congressional direction, not to mention
the law." Shelby is reported to have said. But as one Senate
aide pointed out, "When you're in the middle of a war on terror,
holding money back from the Intelligence Community -- that's
the problem." (159)
Eliminating Committee
Term Limits. Some have suggested that the current eight-year
cap on intelligence committee service be eliminated. Critics
of the term limits argue that members often are just beginning
to grasp the complexities of the Intelligence Community by
the time their term ends. "I was at a peak of my knowledge
and ability to carry out effective oversight," Graham, who
already had received a two-year extension of his eight-year
term when he had to leave the committee at the end of the 107th
Congress in 2002 is quoted as saying. (160)
Critics also argue that term limits, although seen as a well-intentioned
efforts to prevent to members from becoming co-opted by the Intelligence
Community, have outlived whatever usefulness they may have had.
The community, they assert, has become technically so complex
that effective oversight requires members who are knowledgeable
and well-versed in its intricacies. Term limits work against
that goal by robbing the committee of institutional memory, knowledge
and expertise. That outcome can only be avoided if members are
permitted to serve on an open-ended basis; of all congressional
committees, only the intelligence committees are term-limited.
Supporters of term limits argue that the eight-year cap still
effectively prevents Members of Congress from becoming too close
to the Intelligence Community -- including the FBI; and this
remains an important objective given the sensitive role the Intelligence
Community plays in a democracy. Term limits, supporters argue,
also provide exposure to the arcane world of intelligence to
a greater number of members. Finally, they argue, by ensuring
a stream of new members with relatively little experience in
intelligence, term limits bring more new ideas to the table.
Consolidating Oversight
Under the Intelligence Committees. Some observers argue
that Congress could more effectively oversee the FBI's intelligence
operation if the joint jurisdiction now exercised by the intelligence
and judiciary committees was eliminated, and the sole responsibility
given to the intelligence committees. They concede, however,
that such an outcome could result only if a stand-alone collection
and analysis entity, was separate and became independent from
the FBI, effectively removing the rationale for judiciary committee
oversight. In recommending such an outcome, they at least imply
that the intelligence committees would bring a more focused
oversight expertise to judging the effectiveness of domestic
intelligence analysis, collection and dissemination. They further
suggest that putting the intelligence committees in charge
would provide an even better mechanism for protecting civil
liberties than do "current structure and processes." (161)
However, opponents of consolidation argue that the intelligence
committees are ill-quipped to focus on questions of civil liberties
in connection with a domestic intelligence agency. They also
could argue that the sensitivity of such issues requires the
transparency that comes with regular public hearings. The intelligence
committees, by contrast, conduct the majority of their work behind
closed doors.
Options
The debate over Congressional options on FBI reform centers
on two fundamentally opposing views on how best to prevent terrorist
acts and other clandestine foreign intelligence activities directed
against the United State before they occur. Adherents to one
school of thought believe there are important synergies to be
gained from keeping intelligence and law enforcement functions
combined as they are currently under the FBI. They argue that
the two disciplines share the goal of terrorism prevention; that
prevention within the U.S. will invariably require law enforcement
to arrest and prosecute alleged terrorists; and, that the decentralized
nature of terrorist cells is analogous to that of organized crime. (162)
A second school of thought counters that the chasm between the
exigencies of the two disciplines, both cultural and practical,
is simply too broad to effectively bridge, and, therefore, that
the two should be bureaucratically separated.
These two opposing views raise several options for Congress,
including the following:
- Option 1: Support Director Mueller's reform package.
- Option 2: Create a semi-autonomous National Security Intelligence
Service within the FBI.
- Option 3: Establish a separate domestic intelligence agency
within the Department of Homeland Security.
- Option 4: Establish a separate domestic intelligence agency
under the authority of the DCI, but subject to oversight of
the Attorney General.
- Option 5: Create an entirely new stand-alone domestic intelligence
service.
Option 1: Status Quo
Under this option Congress would continue to support Director
Mueller's reforms with necessary funding. Proponents of this
could argue that Director Mueller's reforms constitute the most
effective way to address weaknesses and improve the FBI's intelligence
program, and ultimately, to prevent terrorism in the U.S. They
could also argue that the reforms accomplish three important
and inter-related goals. First, the FBI would continue to benefit
from the synergies that integrated intelligence-law enforcement
provides in the war on terror. Second, by keeping the intelligence
program within the FBI and under the watchful eye of the Department
of Justice, the Attorney General would be better able to reassure
the American people that the FBI's use of intelligence will not
be allowed to infringe on their civil liberties. Third, the reforms
would improve the FBI's intelligence capabilities, while minimizing
the bureaucratic disruption, confusion and resource constraints
that would result if the FBI's intelligence program were re-established
in a new stand-alone entity separate from the FBI. More specifically,
they could maintain that Director Mueller's changes are improving
day-to-day collection, analysis and dissemination of intelligence.
Opponents to this option could counter that the reforms are
necessary but insufficient. While applauding Director Mueller's
new focus on the intelligence, some could contend that his reforms
are too limited and that intelligence still and always will be,
undermined by its arguably second-class status in an FBI that
has long been proud of its law enforcement culture. They could
cite past instances when additional resources were provided to
the FBI's intelligence program, only later to be siphoned off
to support criminal priorities. Or, they could also go further,
arguing that the disciplines of intelligence and law enforcement
are so different that they must be separated, and the FBI's intelligence
program housed in and directed by a new agency.
Option 2: Creation of a National Security
Intelligence Service within the FBI
Under this option, Congress could establish a semi-autonomous
national security intelligence service (NSIS) within the FBI,
and provide it with sufficient staff and protected resources.
The service would have its own budget to ensure sustainable resources.
The service's principal responsibility would be to develop and
nurture an integrated intelligence program, and to establish
well-defined career paths for special agents and analysts that
would hold out realistic promise of advancement to the highest
levels of the FBI and the Intelligence Community. (163) Current
FBI employees who decide to join the service could be protected
from mandatory transfers to the FBI's criminal programs. The
service director, experienced in all-source domestic and foreign
intelligence, would be presidentially appointed and Senate-confirmed.
Regional service squads could be established to focus intelligence
resources in the field.
There are multiple ways such an organization could be structured.
One such construct, however, would pull all (investigative, operational
and analytical -- headquarters and field) of the FBI's international
terrorism, foreign counterintelligence, JTTF, and security countermeasures
resources into the NSIS. While the NSIS Director would report
to the FBI Director and the Attorney General, and operate under
the Attorney General Guidelines, the NSIS Director would also
be tasked to ensure seamless coordination with the Director of
Central Intelligence on issues for which the distinction between
foreign and domestic intelligence are increasingly blurred, such
as terrorism. Analysts within the NSIS would have access to all
the FBI's intelligence relevant to national security, including
criminal intelligence. Moreover, formal analytical working groups
could be established to ensure analytical integration across
counterterrorism, counterintelligence, and criminal programs.
Finally, field intelligence groups could be fewer in number to
ensure focus and deployment of experienced human resources, and
could report to both the NSIS Deputy Director, and local Special
Agent in Charge.
Proponents could argue this option would enhance the FBI's focus
on intelligence without building any "walls" between the various
types of intelligence the FBI collects, analyzes, and exploits.
They could contend that the FBI could build a more effectively
leveraged intelligence program on the foundation that the Director
is currently putting in place. And that it could do so without
severing the connection with law enforcement and the FBI's 56
field offices and 46 legal attaches (164) serving
in U.S. embassies. Such an approach would also ease efforts to
establish intelligence career paths and strengthen the role of
intelligence. Some proponents of a "service within a service" also
argue that it may serve as an interim or bridge solution to the
eventual creation of an autonomous domestic intelligence agency
(see option 5 below). (165)
Opponents could argue that this option is still too limited,
and that intelligence and law enforcement should be separated.
They could also contend such an effort could be bureaucratically
confusing as the new service seeks to build its independence
while the FBI continues to exert control. Opponents could also
argue that this option would disrupt Director Mueller's current
reforms at the very time they are taking hold.
Option 3: Transfer of Existing FBI National
Foreign Intelligence Program Resources to Department of Homeland
Security
A third option could be to establish a separate domestic intelligence
service and house it in the Department of Homeland Security. (166) The
service would be a member of the Intelligence Community and its
authorities would be limited to collecting and analyzing foreign
intelligence inside the United States, including the plans, intentions
and capabilities of international terrorist groups operating
in the U.S. As envisioned, the agency, like Great Britain's MI5, (167) would
not have arrest authority.
Proponents of this option could argue that folding the new entity
into DHS, as opposed to creating a new stand-alone agency, would
avoid creating more bureaucracy while also establishing an organization
unencumbered by the FBI's law enforcement culture. They could
argue that such an entity would be able to more sharply focus
on intelligence while also better safeguarding the rights of
citizens, provided new checks on its ability to collect intelligence
against innocent people were put in place.
Opponents could counter that placing the new organization in
DHS would undermine its ability to play the role of an honest
broker that could produce intelligence products not only for
DHS but for other federal agencies, as well as for state and
local authorities. They could also argue that placing the new
entity within DHS would force it to compete with other DHS offices
for scarce resources. (168) They
also could oppose the idea for the same reason they might oppose
a new entity separate from the FBI -- that the essential synergistic
relationship between intelligence and law enforcement would be
severed. Finally, opponents could argue that establishing a separate
agency is tantamount to creating an MI5-like agency, which may
be unworkable in the U.S. context for political, cultural and
legal reasons despite any efforts to mold it to conform to American
experience. (169)
Option 4: Transfer of Existing FBI National
Foreign Intelligence Program Resources to the DCI
A fourth option could be to establish a domestic intelligence
service under the direction of the Director Central Intelligence,
either as a separate entity reporting directly to the DCI in
that capacity, (170) or
incorporated into the CIA. The Attorney General would retain
the authority to establish and enforce rules to assure that the
rights of Americans would be preserved.
Supporters of this option could contend that providing the DCI
additional operational capability would improve the integration
of analysis and collection and would ensure that security rather
than criminal concerns would be emphasized. (171) Opponents
could argue that legal, policy perception, and cultural concerns
militate against expanding DCI control over domestic intelligence
collection and analysis. They could assert that there is a risk
that the IC could misuse information it collected on American
citizens. (172) They
could also argue that as a practical matter if a decision was
made to incorporate this entity into the CIA, it, like the FBI,
simply may not up to the task of reorienting its efforts quickly
enough to take on this added responsibility. (173)
Option 5: Creation of a New Domestic Security
Intelligence Service
A fifth option could be to create an entirely new agency within
the IC -- but, one which is independent of the FBI, CIA and DHS.
The new agency would fuse all intelligence -- from all sources,
domestic and foreign -- on potential terrorist attacks within
the United States and disseminate it to appropriately cleared
federal, state, local and private sector customers. (174) This
stand-alone entity also would include a separate but collocated
collection units, which would be authorized to collect domestic
intelligence on international terrorism threats within the United
States. The new organization would be prohibited from collecting
intelligence un-related to international terrorism. Counterterrorism
intelligence collection outside the United States would continue
to fall under the purview of the CIA, NSA, and other foreign
IC components. (175) It
also would lack arrest authorities, but would provide "actionable" intelligence
to those entities, such as the FBI, with authority to take action.
The new entity would have authority to task the IC for collection.
It would be overseen by a policy and steering committee comprised
of the new agency's director, the DCI, the Attorney General and
the DHS Secretary. The steering committee would ensure that the
new entity adheres to all relevant constitutional, statutory,
regulatory, and policy requirements.
Proponents of this option could argue that because of its law
enforcement culture, the FBI is incapable of transforming itself
into an agency capable of preventing terrorist attacks. (176) And
even if it could, proponents could argue that failing to separate
intelligence collection from law enforcement could give rise
to the fear that the U.S. was establishing a secret police. (177) Proponents
also could assert that the federal government artificially distinguishes
between foreign and domestic terrorist threats, when those distinctions
increasingly are blurred. And they could contend, given the historical
record, that the FBI and CIA are incapable of changing direction
quickly enough to work together effectively to bridge that divide. (178)
Opponents could counter that establishing another agency will
simply create more bureaucracy. They could argue that it would
take years for a new organization to be fully staffed, and become
effective in the fight against terrorism, and that pushing for
better CIA-FBI cooperation is a more practical approach. (179) They
also could argue that establishing a separate domestic intelligence
service (like MI-5) is impractical in the U.S. context (180) and
would move the country in the wrong direction by creating a more
stove-piped bureaucracy that would undermine the country's ability
to wage an integrated war on terrorism. (181) And
they could argue that the FBI has never been solely a law enforcement
agency but rather an investigative and domestic security agency
that is well prepared to collect and analyze intelligence, and
they could cite the FBI's successes against organized crime as
proof. (182)
Opponents could also counter that the FBI in the past has effectively
collected intelligence, but, that its ability to do so over time
has been eroded. Former U.S. Attorney General Barr and others
argue that historically the FBI has been effective in the collection
of domestic intelligence, but that it was undermined by policymakers,
such as Congress and the courts, through the placement of legal
constraints on the FBI over the past 30 years. (183) Finally,
opponents could argue that Britain's MI-5 has a mixed record
of effectiveness. (184)
Conclusion
Congressional policymakers face FBI intelligence reform options
in a dynamic context. The FBI has made or is in the process of
making substantial organizational, business process, and resource
allocation changes to enhance its ability to deter, detect, neutralize
and prevent acts of terrorism or espionage directed against the
United States. Some experts believe that the remedial measures
currently being taken by the FBI, to include a centralization
of national security-related cases, enhanced intelligence training
for agents and analysts, increased recruitment of intelligence
analysts, and the development of a formal and integrated intelligence
cycle are all appropriate and achievable. Other experts are more
critical of the current intelligence reforms believing that the
culture of the FBI, including its law enforcement-oriented approach
to intelligence, may prove to be an insurmountable obstacle to
necessary intelligence reforms. Some argue that the pace and
scope of reform may be too slow and not radical enough.
One of the central points of distinction between supporters
and critics of the current FBI intelligence reforms is the extent
to which they believe that the two disciplines of law enforcement
and intelligence are synergistic, that is that the commonalities
among them would benefit from continued integration. In general,
those believing that law enforcement and intelligence should
be integrated argue for the status quo. However, other experts
believe that given the conceptual and operational differences
between law enforcement and intelligence, the national interest
would be best served by having them located in separate organizations
with systematic and formal mechanisms in place to share information
and protect civil liberties. Should the Congress choose to influence
the direction and/or outcome of the FBI's intelligence reform,
numerous options, from support of the status quo to the establishment
of an autonomous domestic security intelligence service, are
available for consideration.
Appendix 1: Definitions of Intelligence
Three formal categories of intelligence are defined under statute
or regulation:
- Foreign Intelligence. Information relating to the capabilities,
intentions, or activities of foreign governments or elements
thereof, foreign organizations, or foreign persons. (185)
- Counterintelligence. Information gathered, and activities
conducted, to protect against espionage, other intelligence
activities, sabotage, or assassinations conducted by or on
behalf of foreign governments or elements thereof, foreign
organizations, or foreign persons, or international terrorist
activities. (186)
- Criminal Intelligence. Data which has been evaluated to determine
that it is relevant to the identification of and the criminal
activity engaged in by an individual who or organization which
is reasonably suspected of involvement in criminal activity.
[Certain criminal activities including but not limited to loan
sharking, drug trafficking, trafficking in stolen property,
gambling, extortion, smuggling, bribery, and corruption of
public officials often involve some degree of regular coordination
and permanent organization involving a large number of participants
over a broad geographical area]. (187)
Appendix 2: The FBI's Traditional Role in
Intelligence
According to Executive Order 12333, United States Intelligence
Activities, signed December 4, 1981, and the National Security
Act of 1947 (50 U.S. Code §401), the FBI is a statutory member
of the United States Intelligence Community. Specifically, and
in accordance with section 1.14 of Executive Order 12333, United
States Intelligence Activities, the intelligence roles of the
FBI are outlined as follows:
Under the supervision of the Attorney General and pursuant to
such regulations as the Attorney General may establish, the Director
of the FBI shall:
- (a) Within the United States conduct counterintelligence
and coordinate counterintelligence activities of other agencies
within the Intelligence Community. When a counterintelligence
activity of the military involves military or civilian personnel
of the Department of Defense, the FBI shall coordinate with
the Department of Defense;
- (b) Conduct counterintelligence activities outside the United
States in coordination with the Central Intelligence Agency
as required by procedures agreed upon by the Director of Central
Intelligence and the Attorney General;
- (c) Conduct within the United States, when requested by officials
of the Intelligence Community designated by the President,
activities undertaken to collect foreign intelligence or support
foreign intelligence collection requirements of other agencies
within the Intelligence Community, or, when requested by the
Director of the National Security Agency, to support the communications
security activities of the United States Government;
- (d) Produce and disseminate foreign intelligence and counterintelligence;
and
- (e) Carry out or contract for research, development, and
procurement of technical systems and devices relating to the
functions authorized above.
Appendix 3: The FBI's Intelligence Programs
-- A Brief History
The FBI's is responsible for deterring, detecting and preventing
domestic activities that may threaten the national security,
and, at the same time, respecting constitutional safeguards. (188) The
FBI, a statutory member of the IC, is able to collect foreign
intelligence within the U.S. when authorized by IC officials.
The FBI and its predecessor, the Bureau of Intelligence, have
collected intelligence -- foreign intelligence, counterintelligence
and criminal intelligence -- in the U.S. since 1908, (189) and,
at times, effectively. (190) During
the Cold War, the FBI successfully penetrated the Soviet leadership
through a recruited U.S. Communist Party asset. The FBI also
battled the Kremlin on the counterintelligence front. (191) In
1985 -- dubbed the Year of the Spy, the FBI arrested 11 U.S.
citizens for espionage, -- including former U.S. warrant officer
John Walker, who provided the Soviets highly classified cryptography
codes during a spying career that began in the 1960s. The FBI
also arrested Larry Wu-Tai Chin, a CIA employee, a spy for the
People's Republic of China; Jonathan Pollard, a Naval Investigative
Service intelligence analyst who stole secrets for Israel; and
Ronald Pelton, a former National Security Agency communications
specialist who provided the Soviet Union classified material. (192) More
recently convicted spies include FBI Special Agent Robert P.
Hanssen, who spied on behalf of Soviet Union and, subsequently,
Russia, and pleaded guilty to 15 espionage-related charges in
2001; and former Defense Intelligence Agency analyst Ana Belen
Montes, arrested in 2001 and subsequently convicted for spying
for Cuba.
FBI Excesses
The FBI has been applauded for its historical successes, but
also criticized for overstepping constitutional bounds by targeting
U.S. citizens who were found to be exercising their constitutional
rights. (193) For
example, during the 1919-1920 "Palmer Raids," the FBI's so-called
Radical Division (later renamed the General Intelligence Division)
arrested individuals allegedly working to overthrow the U.S.
government, but who were later judged to be innocent. (194)
Between 1956 and 1970, the FBI investigated individuals it believed
were engaging in "subversive" activities as part of the FBI's
so-called COINTELPRO Program. (195) In
the mid-1960s, the FBI surveilled such prominent Americans as
Martin Luther King, Jr., collecting "racial intelligence." (196) And
in the 1980s, the FBI was found to have violated the constitutional
rights of members of the Committee in Solidarity with the People
of El Salvador (CISPES) who the FBI believed violated the Foreign
Agent Registration Act. (197) Although
congressional investigators concluded that the FBI's investigation
did not reflect "significant FBI political or ideological bias
...," its activities "resulted in the investigation of domestic
political activities protected by the First Amendment that should
not have come under governmental scrutiny." (198)
Oversight and Regulation: The Pendulum Swings
In response to these FBI abuses, the Department of Justice imposed
domestic intelligence collection standards on the IC, including
the FBI. For example, in 1976, Attorney General Edward H. Levi
issued specific guidelines governing FBI domestic security investigations.
Congress also established House and Senate intelligence oversight
committees to monitor the IC. And President Carter signed into
law the Foreign Intelligence Surveillance Act of 1978, which
established legal procedures and standards governing the use
of electronic surveillance within the U.S.
Critics argue that until Congress approved the U.S.A. PATRIOT
Act granting the FBI additional authority to investigate suspected
terrorists, increased oversight and over-regulation had seriously
weakened the FBI's intelligence capabilities. Some thought that
not only had regulations curtailed the FBI's surveillance authorities,
but that they had undermined the risk-taking culture thought
to be essential to successful intelligence work. (199) The
Levi Guidelines (200) were
singled out as being particularly onerous. (201)
Some observers blamed the restrictions for discouraging domestic
intelligence collection unless the FBI could clearly show that
its collection was tied to a specific alleged crime. They also
said the restrictions led the FBI to transfer responsibility
for parts of its counterterrorism program from the FBI's former
Intelligence Division to its Criminal Division. The result, they
contend, was an anemic intelligence program that contributed
to the failure to prevent the September 11, 2001 terrorist attacks. (202)
Appendix 4: The Case File as an Organizing
Concept, and Implications for Prevention
The FBI uses a case approach to categorize each of its investigations.
Each case receives an alphanumeric indicator signifying the target
country, or issue, and the level of priority. Some observers
have criticized this approach as reactive; a case is opened only
after a crime has been committed. Traditionally, ex post investigation
is the FBI's greatest investigative strength. It can deploy thousands
of agents, as it did after the terrorist attacks of September
11, 2001, to track domestic and international leads, conduct
witness interviews and develop a "story board" about how the
act and the events surrounding it took place. Although well suited
for assembling a criminal case, this operational approach is
ill-suited for terrorism prevention.
While the FBI reacts to crimes after the fact, it adopts a proactive
approach in some counterintelligence cases, For example, FBI
counterintelligence agents, working with their IC counterparts,
may open a "case" to recruit a human asset, usually a foreign
national, who may have access to information which would fulfill
an existing intelligence gap.
The FBI says it is attempting to adopt a proactive approach
to counterterrorism. FBI Director Mueller says that the new USA
PATRIOT Act has helped. According to FBI Director Mueller, the
FBI can now, "... move from thinking about 'intelligence as a
case' to finding 'intelligence in the case'...." (203) While
the reactive opening a criminal case, such as those against cigarette
smugglers, may yield intelligence relevant to counterterrorism,
it is generally a serendipitous occurrence. Extracting preventative
and predictive intelligence from a case arguably presupposes
first, that the case was opened pro-actively, and not necessarily
in response to some adverse event. Second, in order to extract
intelligence from any case, well-trained and experienced reports
officers and intelligence analysts must be integrated into the
flow of intelligence resulting from investigations, and be able
to sift the "signal" from the "noise" in the sea of raw intelligence
to which they have access. According to one local law enforcement
official, the FBI is unable to strip the intelligence from their
own cases, much less share that intelligence with state and local
law enforcement officials. (204) Finally,
for the FBI to succeed in using this new approach, it will likely
have to implement successfully all the complex and inter-related
elements of the intelligence cycle.
Appendix 5: Past Efforts to Reform FBI Intelligence
The FBI's current intelligence reform is not its first. Twice
before -- in 1998, and then again in 1999 -- the FBI embarked
on almost identical efforts to establish intelligence as a priority,
and to strengthen its intelligence program. Both attempts are
considered by some to have been failures. (205)
Both previous attempts were driven by concerns that FBI's intelligence
effectiveness was being undercut by the FBI's historically fragmented
intelligence program. The FBI's three operational divisions,
at the time -- criminal, counterterrorism and counterintelligence
-- each controlled its own intelligence program. (206) As
a result, the FBI had trouble integrating its intelligence effort
horizontally between its divisions. In intelligence world parlance,
the programs were "stove-piped."
In 1998, the FBI attempted to address the stove pipe problem
by consolidating control over intelligence under the authority
of a newly established Office of Intelligence. It also took steps
to improve the quality of its intelligence analysis, particularly
in the criminal area, which was viewed as particularly weak.
Dissatisfied with the results, the FBI launched a second round
of reforms the following year aimed at more thoroughly integrating
FBI intelligence analysis in support of investigations. A new
Investigative Services Division (ISD) was established to replace
the Office of Intelligence, and to house in one location all
FBI analysts that until then had been "owned" by FBI's operational
divisions. Although the ISD was intended to provide each of the
divisions "one-stop shopping" for their intelligence needs, it
was never accepted by the operational divisions, which wanted
to control their own intelligence analysis programs. In the wake
of September 11, the FBI concluded that analysts would be more
effective if they were controlled by the operational divisions.
ISD was abolished, and analysts were dispersed back to the divisions
in which they originally served.
Although observers blame the failure of both prior reform efforts
on several complex factors, they put the FBI's deeply-ingrained
law enforcement mentality at the top of the list. As one observer
described it, efforts to integrate intelligence at the FBI were
substantially hampered because resources dedicated to intelligence
were gradually siphoned back to the FBI's traditional counter
crime programs. Moreover, there was also little sustained senior
level support for an intelligence function that was integrated
with the Intelligence Community. (207)
Appendix 6: Counterterrorism and Counterintelligence (208)
The FBI's two principal national foreign intelligence program
responsibilities are counterterrorism and counterintelligence.
Some observers of FBI intelligence reform have suggested that
these two disciplines be integrated, but not necessarily under
the control of the FBI. (209) Numerous
interviewees indicated their belief that of the FBI's NFIP responsibilities,
the counterintelligence program was most closely integrated into
the Intelligence Community.
Historically, the FBI has shifted its organization to counter
both terrorist and clandestine foreign intelligence activity
directed against the United States. Although the FBI in the past
has integrated both missions as part of the same division, currently
the FBI has separate counterterrorism and counterintelligence
divisions. The Assistant Directors for each division report to
an Executive Assistant Director having responsibility for both
functions. In a debate that mirrors the ongoing discussion about
the appropriate relationship between law enforcement and intelligence,
some observers believe counterterrorism and counterintelligence
should be reintegrated. (210) They
make the following arguments:
- Commonality of Adversary Methods of Operation. No
matter whether the threat the United States is confronting
is that of a loosely affiliated foreign terrorist group, or
a centrally controlled foreign intelligence service, the method
of operation is consistent -- a covertly organized set of activities
designed to undermine U.S. national security. As such, the
countermeasures are similar -- primarily the penetration and
surveillance of the inimical activity, up to, and until, the
point at which action may be taken against the United States.
- Linkages between Foreign Intelligence Services and Terrorist
Groups. Some argue that there are linkages between foreign
intelligence services and terrorist groups. (211) Information
documenting these links, should they exist, are likely to
be classified.
Supporters of the status quo argue the following:
- Similar Disciplines -- Different Time Lines and Pressures.
While the damage that can result from a successful espionage
operation directed against the United States by a foreign power
can be just as damaging to national security as the terrorist
attacks of September 11, counterintelligence moves at a different
pace than counterterrorism. Building counter-espionage cases
can sometimes consume months, if not years, of monitoring actions
of those suspected of passing national defense information
to an unauthorized third party, or committing economic espionage.
In the case of a potential terrorist act, there is pressure
to collect actionable intelligence, and to act quickly to prevent
terrorists from striking.
- Diminution of Resources/Organizational Focus on Counterintelligence.
Of the FBI's two principal National Foreign Intelligence Program
priorities, the counterintelligence program, arguably, has
been accorded a lower priority in the wake of the Cold War.
Counterterrorism has become the FBI's first priority. Reintegrating
the two could lead to situations in which, particularly from
an FBI human resources perspective, counterintelligence personnel
serve as a reserve pool of educated labor for counterterrorism.
Such an occurrence may result in a diminished strategic focus
on counterintelligence, a function which requires a long-term
outlook and commitment.
- The Law Enforcement Nexus with Counterterrorism and Counterintelligence.
Given the decentralized nature of the terrorist threat, and
criminal activities engaged in to provide financial support
for such activities, there is a close relationship between
the FBI's criminal programs and its counterterrorism program.
While there is also a nexus between the FBI's counterintelligence
activities and its criminal programs, arguably, given that
very few counterintelligence cases ever go to trial for espionage
or economic espionage prosecution, the nexus is weaker.
Appendix 7: Relevant Legal and Regulatory
Changes
Intelligence Community operations, including domestic intelligence
collection, and collection of intelligence on U.S. persons, (212) are
governed by a body of laws, regulations and guidelines. (213) With
regard to the domestic intelligence collection, for example,
the U.S. Department of Justice has promulgated seven successive
sets of guidelines (214) governing
these efforts since 1976.
Following September 11, Congress also approved the USA PATRIOT
Act, which makes it easier for the FBI to share intelligence
with IC agencies, and to conduct electronic surveillance. (215) For
example, with respect to electronic surveillance, a substantially
broader legal standard authorized in the USA PATRIOT Act allows
for electronic surveillance under the Foreign Intelligence Surveillance
Act, as long as, among other requirements, the application includes
a certification by an appropriate national security official
that "a significant purpose of the surveillance is to obtain
foreign intelligence information." (216) Among
the other criteria which must be met for an application for electronic
surveillance to be approved under FISA, a court must find that
the surveillance "... is not conducted solely upon the basis
of activities protected by the first amendment to the Constitution." (217) Moreover,
the Intelligence Authorization Act of FY2004 authorized the enhanced
use of administrative subpoenas, also known as national security
letters, by the FBI in order to gather information from financial
institutions. (218)
The USA PATRIOT Act has had a substantial impact on FBI intelligence
gathering and sharing. For example, Foreign Intelligence Surveillance
Act authorizations for electronic surveillance increased 21.3%
during the two-year period, 2000 to 2002. (219) According
to FBI Director Mueller, the act has been "extraordinarily beneficial
in the war on terrorism ... Our success in preventing another
catastrophic attack on the U.S. homeland would have been much
more difficult, if not impossible, without the Act." (220)
The USA PATRIOT Act also has provided a legal framework that
makes it easier for the FBI's four investigative/operational
divisions -- criminal, counterterrorism, counterintelligence,
and cyber -- to integrate their intelligence efforts. As a result,
the FBI has adopted a new strategy, known as the Model Counterterrorism
Investigations Strategy, which permits the FBI to treat counterterrorism
cases as intelligence cases from the outset, making it easier
to initiate electronic surveillance. Special Agent John Pistole,
FBI Executive Assistant Director for Counterterrorism and Counterintelligence,
stated, "We're still interested in the criminal violations that
many people may be involved in. But, in many cases we are going
to put that in the back seat and go down the road until we have
all that we need." (221) If
implemented and institutionalized, the new policy may significantly
enhance the effectiveness of the FBI's intelligence program.
The question becomes whether the FBI can implement the policy
and stay within constitutional limits. Some civil libertarian
advocates say they are concerned that by making it easier for
the FBI to employ surveillance under FISA, the USA PATRIOT Act
might lead the FBI to use such FISA surveillance to investigate
criminal cases in a manner that may be inconsistent with the
requirements of the Fourth Amendment. (222)
Footnotes
1. (back)While
the FBI initially provided the authors access to FBI officials
and documents, it later declined to do so, despite numerous requests.
Although this paper would have benefitted from continued cooperation,
the authors note with gratitude that some FBI officials continued
to share their insights into the current reforms. Numerous current
and former employees of the FBI and Cental Intelligence Agency
(CIA), as well as state and local law enforcement entities, were
interviewed for this report. Some sources wish to remain anonymous
and, therefore, have not been identified by name in this report.
2. (back)William
E. Odom, Fixing Intelligence for a More Secure America (New
Haven, CT: Yale University Press, 2003), p. 187.
3. (back)For
purposes of this report, intelligence is defined to include foreign
intelligence, counterintelligence and criminal intelligence.
For a statutory definition of each see Appendix 1.
For a brief summary of the FBI's traditional role in intelligence,
see Appendix 2. Finally, Appendix 3 provides
a brief history of FBI intelligence.
4. (back)The
IC is comprised of 15 agencies: the Central Intelligence Agency;
the National Security Agency, the Defense Intelligence Agency;
the National Geospatial-Intelligence Agency; the National Reconnaissance
Office; the intelligence elements of the Army, Navy, Air Force,
and Marine Corps; the Federal Bureau of Investigation; the Department
of the Treasury; the Department of Energy; the Coast Guard; the
Bureau of Intelligence and Research of the Department of State;
and; the Department of Homeland Security.
5. (back)See Joint
Inquiry Into Intelligence Community Activities Before and After
the Terrorist Attacks of September 11, 2001, a report
of the U.S. Congress, Senate Select Committee on Intelligence
and the House Permanent Select Committee on Intelligence, S.Rept.
107-351; H.Rept.
107-792, Dec. 2002, pp. xv, xvi, 37-39, 337-338. (Hereafter
cited as JIC Inquiry)
6. (back)An
analyst conducts counterterrorism strategic intelligence analysis
in order to develop a national and international understanding
of terrorist threat trends and patterns, as well as common operational
methods and practices. An analyst conducts tactical counterterrorism
analysis in order to support specific criminal or national security-oriented
cases and operations. While not mutually exclusive, each type
of analysis requires a unique set of analytical methodologies
and research skills.
7. (back)See
the JIC Inquiry, p. 37.
8. (back)Ibid.,
p. 39.
9. (back)See "Statement
of John MacGaffin to the National Commission on Terrorist Attacks
Upon the United States," Dec. 8, 2003. MacGaffin testified, "In
the domestic context, it is clear that the FBI needs to improve
greatly its intelligence collection so that there are meaningful "dots" to
connect and analyze. Some observers believe the FBI since 9/11
has made real progress in this direction. I and many others do
not."
10. (back)A
former senior FBI official stated in an Aug. 21, 2003 interview
that if FBI Director Mueller was serious about achieving more
than a limited reform, he would establish an intelligence career
path. To date the Director has not implemented fully an intelligence
career path for special agents.
11. (back)Fourth
Annual Report to the President and Congress of the Advisory Panel
to Assess Domestic Response Capabilities for Terrorism Involving
Weapons of Mass Destruction, Implementing the National Strategy,
Dec. 15, 2002, pp. 43-44. (Hereafter cited as Gilmore Commission, Fourth
Annual Report to the President and Congress.) Organizational
culture is a product of many factors, including, but not limited
to, an organization's history, mission, self-image, client base
and structure. According to William E. Odom, former Director
of the National Security Agency, however, organizational culture
is principally the product of structural conditions. See William
E. Odom, Fixing Intelligence for a More Secure America,
p. 3.
12. (back)For
an analysis of the applicability of Great Britain's MI-5 model
to the U.S., see CRS
Report RL31920, Domestic Intelligence in the United Kingdom:
Applicability of the MI-5 Model to the United States, by
Todd Masse.
13. (back)Director
Mueller has headed the Department of Justice Criminal Division,
served as U.S. Attorney in San Francisco, and generally focused
on criminal prosecution during his career.
14. (back)Interview
with a former senior FBI official, with an extensive intelligence
background, Aug. 21, 2003.
15. (back)See
statement of William P. Barr, Former Attorney General of the
United States, in U.S. Congress, House Permanent Select Committee
on Intelligence, Oct. 30, 2003, p. 14.
16. (back)Ibid.,
pp. 16-17.
17. (back)See
the Gilmore Commission, Fourth Annual Report to the President
and Congress. pp. 43-44.
18. (back)The
Congressional Research Service has recently published a related
report on the FBI. For a history of the FBI, see CRS
Report RL32095(pdf), The FBI: Past, Present and Future,
by Todd Masse and William Krouse.
19. (back)See
the JIC Inquiry, p. xv.
20. (back)All-source
intelligence analysis is that analysis which is based on all
available collection sources.
21. (back)See
the JIC Inquiry, p. 37.
22. (back)Ibid.,
pp. 38-39.
23. (back)Ibid.,
pp. 337-338.
24. (back)Ibid.,
p. xvi.
25. (back)See
Concept of Operations, FBI Intelligence Requirements and
Collection Management Process, prepared jointly by FBI Headquarters
divisions, reviewed by FBI field office representatives and coordinated
by the FBI's Office of Intelligence, Aug. 2003. The Assistant
Director, Office of Intelligence, reports to the Executive Assistant
Director for Intelligence.
26. (back)According
to the FBI's 1998-2003 Strategic Plan, issued in May 1998, the
FBI, prior to Sept. 11, had established three tiers of priorities:
(1) National and Economic Security, aimed at preventing intelligence
operations that threatened U.S. national security; preventing
terrorist attacks; deterring criminal conspiracies; and deterring
unlawful exploitation of emerging technologies by foreign powers,
terrorists and criminal elements; (2) Criminal Enterprise and
Public Integrity; and (3) Individuals and Property. Countering
criminal activities was a prominent feature of each tier. See
Department of Justice, Office of Inspector General, Federal
Bureau of Investigation: Casework and Human Resource Allocation, Audit
Division, Sept. 2003, pp. 03-37.
27. (back)See
statement of Robert S. Mueller, III, Director, Federal Bureau
of Investigation, in U.S. Congress, House Committee on Appropriations,
Subcommittee on the Departments of Commerce, Justice, State,
the Judiciary and Related Agencies, June 18, 2003.
28. (back)Core
competencies are defined as a related group of activities central
to the success, or failure, of an organization. In the private
sector, core competencies are often the source of a company's
competitive advantage. See C. K. Prahalad and Gary Hamel, "The
Core Competency of the Corporation," Harvard Business Review,
Apr. 1, 2001.
29. (back)See
statement of Robert S. Mueller, III, Director, Federal Bureau
of Investigation, in U.S. Congress, Senate Judiciary Committee,
July 23, 2003.
30. (back)The
FBI established the position of EAD-I in early 2003, and the
position was filled in April 2003, when Maureen Baginski, the
former Director of Signals Intelligence, National Security Agency,
was appointed. It was another four months before EAD-I Baginski
began working in her new capacity, and an additional four months
before Congress approved the reprogramming action formally establishing
the EAD-I position. Some critics date whatever progress the FBI
has made in upgrading intelligence to Baginski's arrival, but
contend that because this critical position was left vacant for
an extended period of time, the FBI made little, or no progress,
between September 11 and Baginski's arrival almost one-and-a-half
years later.
31. (back)See
statement of Robert S. Mueller, III, Director, Federal Bureau
of Investigation, before the Joint Inquiry, Oct. 17,
2002.
32. (back)The
establishment of TTIC, and its mission, is addressed later in
this section.
33. (back)The
Office of Intelligence has had an uneven, albeit short, leadership
history since its establishment. Although Director Mueller announced
OI's established in Dec. 2001, the position of OI Assistant Director
was vacant for one-and-a-half years, until Apr. 2003. The selected
individual served four months before being appointed to another
FBI position. The position then was vacant for almost five additional
months before Michael Rolince, Special-Agent-in-Charge of the
FBI's Washington Field Office, was appointed to lead the office
on an acting basis in mid-Dec. 2003.
34. (back)See
FBI Field Office Intelligence Operations, Concept of Operations,
Aug. 2003.
35. (back)For
the purposes of this report, intelligence analysts are defined
as all-source analysts who conduct tactical and strategic analysis.
Until recently, the FBI had two categories of analysts -- Intelligence
Research Specialists, who were responsible for all-source analysis,
and Intelligence Operations Specialists, who provided tactical
analytic support for cases and operations. The FBI is merging
these two positions with the newly created "Reports Officer" position,
and re-titling the consolidated position as "intelligence analyst." The
FBI says its purpose in doing so is to standardize and integrate
intelligence support for the FBI's highest priorities. Within
the intelligence analyst position, there are four "areas of interest" --
counterterrorism, counterintelligence, cyber, and criminal; and
three specific work "functions" -- all source, case support,
and reports.
36. (back)The
number of individuals in a field intelligence group varies, depending
upon the size of the field office. See "FBI Field Office Intelligence
Operations," Concept of Operations, Aug. 2003.
37. (back)Funding
was authorized under the FY2004 Intelligence Authorization Act
(P.L.
108-177). The legislation permits the FBI Director to "...
enter into personal services contracts if the personal services
to be provided under such contracts directly support the intelligence
or counterintelligence missions of the Federal Bureau of Investigation."
38. (back)JTTFs
are FBI-led and are comprised of other federal, state and local
law enforcement officials. JTTFs serve as the primary mechanism
through which intelligence derived from FBI investigations and
operations is shared with non-FBI law enforcement officials.
JTTFs also serve as the principal link between the Intelligence
Community and state and local law enforcement officials.
39. (back)See
statement of Larry A. Mefford, Executive Assistant Director --
Counterterrorism and Counterintelligence, Federal Bureau of Investigation,
before the Subcommittee on Cybersecurity, Science, Research and
Development; and the Subcommittee on Infrastructure and Border
Security of the U.S. Congress, House Select Committee on Homeland
Security, Sept. 4, 2003.
40. (back)See CRS
Report RS21283, Homeland Security: Intelligence Support,
by Richard A. Best, Jr.
41. (back)See http://www.usdoj.gov/jmd/2003summary/html/FBIcharts.htm and
Where the Money Goes: Fiscal 2004 Appropriations, -- House Commerce,
Justice, State Subcommittee, Committee on Appropriations, House
of Representatives (House Conf. Rept. 108-401).
42. (back)See
U.S. Department of Justice, Justice Management Division, "2005
Budget and Performance Summary," winter 2004, pp.113-122. Elements
of this request include 1) $35 million in non-personnel funding
to support collocation of a portion of the FBI's Counterterrorism
Division with the CIA's Counterterrorism Center and the interagency
Terrorist Threat Integration Center; 2) $13.4 million to launch
the Office of Intelligence; 3) $14.3 million to Counterterrorism
FBI Headquarters program support, including intelligence analysis;
and 4) $13 million to launch the National Virtual Translation
Center. Some elements of the $46 million request for Counterterrorism
Field Investigations and the $64 million request for various
classified national security initiatives, also likely will be
dedicated to intelligence.
43. (back)See
Michelle Mittelstadt, "FBI Set to Add 900 Intelligence Analysts," The Dallas
Morning News, Feb. 17, 2004. The near doubling of intelligence
analysts in one year could present the FBI with a significant
absorption challenge.
44. (back)The
GAO has drafted two reports (GAO-03-759T, June 18, 2003 and GAO-04-578T,
Mar. 23, 2004) on the FBI reform efforts cited in this report.
These GAO reports assess the FBI's transformation from a program
management and results perspective, that is, the extent to which
the FBI is expending its resources and dedicating its management
in a manner consistent with its stated priorities. This CRS report
focuses on the more policy-oriented question of FBI intelligence
reform and related policy options, as well as the ability of
the FBI to implement successfully its strategic plans related
to intelligence.
45. (back)FBI
Reorganization: Progress Made in Efforts to Transform, but
Major Challenges Continue, GAO-03-759T, June 18, 2003.
The U.S. Department of Justice, Office of the Inspector General
(OIG), periodically audits resource allocations, to determine
if human resources are being committed in a manner consistent
with stated priorities and strategies. In a recent report,
the OIG found that since Sept. 11, the FBI "... continued to
devote more of its time to terrorism-related work than any
other single area," consistent with its post-Sept. 11 terrorism
priority. To ensure that the FBI systematically and periodically
analyzes its programs, the OIG recommended that the FBI Director "...
regularly review resource utilization reports for the Bureau
as a whole, as well as for individual investigative programs,
and explore additional means of analyzing the Bureau's resource
utilization among the various programs." See Federal Bureau
of Investigation: Casework and Human Resource Allocation, U.S.
Department of Justice, Office of Inspector General, Audit Division,
Audit Report 03-37), Sept. 2003. While the quantity of human
resources must be adequate, appropriate quality is essential.
One asset developed by an experienced, well-trained FBI special
agent could have a significant effect on U.S. national security.
46. (back)As
currently structured, the FBI special agent recruitment procedure
has five entry programs, with numerous other areas defined as "critical
skill needs." Agents must be hired under one of the five programs
(law, accounting/finance, language, computer science/information
technology and diversified); yet, the FBI will establish priorities
for those having expertise in the critically needed skills. Unlike
intelligence analysts, who are not required to possess a bachelor's
degree, candidates for FBI special agent positions "must possess
a four-year degree from an accredited college or university ...." See
https://www.fbijobs.com/jobdesc.asp?requisitionid=368.
47. (back)See
Concept of Operations, Human Talent for Intelligence Production,
Federal Bureau of Investigation, Aug. 2003.
48. (back)See
statement of Richard Thornburgh, Chairman, Academy Panel on FBI
Reorganization, National Academy of Public Administration, before
the Subcommittee on Commerce, State, Justice, the Judiciary and
Related Agencies, Committee on Appropriations, House of Representatives,
June 18, 2003, p. 3.
49. (back)See Making
Appropriations for Agriculture, Rural Development, Food and
Drug Administration, and Related Agencies for the Fiscal Year
Ending Sept. 30, 2004, and For Other Purposes, U.S. House
of Representatives, Conference Report (H.Rept.
108-401).
50. (back)See "Human
Talent for Intelligence Production," FBI Concept of Operations,
Aug. 2003.
51. (back)In
place of a bachelors degree, the FBI now allows a candidate for
intelligence analyst to substitute a minimum of one year of related
law enforcement or military experience.
52. (back)The
authors were unable to compare training, before and after Sept.
11, because the FBI's Office of Congressional Affairs denied
requests for a copy of the training curriculum.
53. (back)See
statement of David M. Walker, Comptroller of the United States,
General Accounting Office, in U.S. Congress, Committee on Appropriations,
House Subcommittee on Commerce, Justice, State and the Judiciary,
June 18, 2003, p. 14.
54. (back)The
National Foreign Intelligence Program (NFIP) budget includes
a number of national-level intelligence programs, which are approved
by the Director of Central Intelligence and submitted to the
President and Congress as a single consolidated program. The
NFIP budget funds those departments and agencies constituting
the U.S. Intelligence Community. Historically, the FBI's NFIP
has included the headquarters and field elements associated with
the following programs: 1) international terrorism, 2) counterintelligence,
3) security countermeasures, and 4) dedicated technical activities.
55. (back)Some
observers have suggested that as part of its intelligence reform,
the FBI should consider re-integrating counterterrorism and counterintelligence.
For an assessment of these arguments, see Appendix 6.
56. (back)Notwithstanding
this increase in intelligence training, a new special agent collector,
at least early in his career, still is at a disadvantage, compared
to a foreign intelligence officer, or terrorist, who has likely
received intensive clandestine operations training.
57. (back)Interview
with an FBI official, Jan. 15, 2004.
58. (back)See "Human
Talent for Intelligence Production," the Federal Bureau of Investigation,
Sept. 2003.
59. (back)Numerous
GAO studies, including the recent Information Technology:
FBI Needs an Enterprise Architecture to Guide Its Modernization
Activities (GAO Report 03-959, Sept. 25, 2003) have found
substantial deficiencies in the FBI's formal procedures to implement
recommended information technology changes. See also The
Federal Bureau of Investigation's Implementation of Information
Technology Recommendations, U.S. Department of Justice,
Office of Inspector General, Audit Division (Audit report 03-36,
Sept. 2003).
60. (back)See "FBI
Director Says Technology Investments Are Paying Off," Government
Executive, Apr. 10, 2003.
61. (back)According
to the Department of Justice Inspector General (IG), FBI officials
originally estimated the cost of the Virtual Case File system
to be $380 million. The current actual cost, according to the
IG, exceeds $596 million. See also Wilson P. Dizard, "FBI's Trilogy
Rollout Delayed; CSC Misses Deadline," Government Computer
News, Nov. 4, 2003. Critics have attributed the FBI's chronic
information management problems to, among other factors, deficient
data mining capabilities, and the FBI's continuing inability
to effectively upload information collected by field offices
onto accessible FBI-wide databases.
62. (back)Dan
Eggen, "FBI Applies New Rules to Surveillance," Washington
Post, Dec. 13, 2003, p. A1.
63. (back)In
addition to easing constraints on intelligence sharing, this
change will allow investigators to more easily employ secret
warrants and other intelligence collection methods permitted
by the Foreign Intelligence Surveillance Act, as amended. Those
foreign intelligence gathering tools cannot be used in traditional
criminal probes. The change stems from a Nov. 2002 intelligence
appeals court ruling that upheld the USA PATRIOT Act provisions
that provided more latitude for the sharing of foreign intelligence
between criminal prosecutors and intelligence/national security
personnel. See United States Foreign Intelligence Surveillance
Court of Review, In re: Sealed Case 02-001, Decided Nov.
18, 2002.
64. (back)For
information on terrorist watch lists, see CRS
Report RL31019, Terrorism: Automated Lookout Systems
and Border Security Options and Issues, by William Krouse
and Raphael Perl.
65. (back)An
organization's structure and business processes influence its
performance. Large organizations with dispersed operations continually
assess the appropriate balance between decentralized and centralized
elements of their operations. Although the mission of National
Aeronautics Space Administration (NASA) is unrelated to that
of the FBI, it too has dispersed operations. In a review of the
causes of the 1986 Columbia shuttle accident, the board investigating
the accident found that "The ability to operate in a centralized
manner when appropriate, and to operate in a decentralized manner
when appropriate, is the hallmark of a high-reliability organization." See Columbia
Accident Investigation Report, Volume I, Aug. 2003. http://www.caib.us/news/report/volume1/default.html
66. (back)See
statement of Richard Thornburgh, Chairman, Academy Panel on FBI
Reorganization, National Academy of Public Administration, U.S.
Congress, House Committee on Appropriations, Subcommittee on
Commerce, State, Justice, the Judiciary and Related Agencies,
June 118, 2003, p. 3.
67. (back)Interview
with an FBI official, Jan. 6, 2004.
68. (back)See
the JIC Inquiry, p. 224.
69. (back)Interview
with a former senior intelligence official, Oct. 15, 2003.
70. (back)See
the JIC Inquiry, p. 224.
71. (back)See
testimony of John MacGaffin, III, before the National Commission
on Terrorist Attacks Upon the United States, Dec. 8, 2003, p.
4.
72. (back)See
the Gilmore Commission, Fourth Annual Report to the President
and Congress, pp. 43-44.
73. (back)Interview
with a former senior FBI official, Aug. 21, 2003.
74. (back)See
the JIC Inquiry, p. 245.
75. (back)Statement
by David M. Walker, Comptroller General of the United States,
General Accounting Office, in U.S. Congress, House Committee
on Appropriations, Subcommittee on Commerce, Justice, State,
and the Judiciary, June 18, 2003, p. 19. See also The Federal
Bureau of Investigation's Implementation of Information Technology
Recommendations, U.S. Department of Justice, Office of Inspector
General, Audit Division (Audit report 03-36, Sept. 2003), p.
v.
76. (back)See "FBI
Transformation: FBI Continues to Make Progress in Its Efforts
to Transform and Address Priorities," statement by Laurie E.
Ekstrand, Director Homeland Security and Justice Issues; and
Randolph C. Hite, Director Information Technology Architecture
and Systems Issues, GAO-04-578T, Mar. 23, 2004, p. 13.
77. (back)See
the JIC Inquiry, p. 358.
78. (back)Statement
of Richard Thornburgh, Chairman, Academy Panel on FBI Reorganization,
National Academy of Public Administration, in U.S. Congress,
House Committee on Appropriations, Subcommittee on Commerce,
State, Justice, the Judiciary, and Related Agencies, June 18,
2003.
79. (back)The
Federal Bureau of Investigation's Implementation of Information
Technology Recommendations, U.S. Department of Justice,
Office of Inspector General, Audit Division (Audit report 03-36,
Sept. 2003), p. xiv.
80. (back)Interview
with a former senior FBI official, Oct. 2, 2003.
81. (back)See The
Federal Bureau of Investigation's Efforts to Improve the Sharing
of Intelligence and Other Information, U.S. Department
of Justice, Office of Inspector General, Audit Division, Audit
Report 04-10, Dec. 2003, p.x.
82. (back)Interview
with an FBI official, Jan. 6, 2004.
83. (back)See
the JIC Inquiry, p. 337.
84. (back)Ibid.,
p. 340. The vast majority of FBI analysts are located in the
FBI's 56 regional field offices.
85. (back)Ibid.,
p. 245.
86. (back)See
statement of Richard Thornburgh, Chairman, Academy Panel on FBI
Reorganization, National Academy of Public Administration, in
U.S. Congress, House Committee on Appropriations, Subcommittee
on Commerce, State, Justice, the Judiciary and Related Agencies,
June 18, 2003, p. 3.
87. (back)Ibid.,
p. 5.
88. (back)Ibid.,
p. 4.
89. (back)Ibid.,
p. 5.
90. (back)Ibid.,
p. 3.
91. (back)Ibid.
92. (back)See "FBI
Transformation: FBI Continues to Make Progress in Its Efforts
to Transform and Address Priorities," statement by Laurie E.
Ekstrand, Director Homeland Security and Justice Issues; and
Randolph C. Hite, Director Information Technology Architecture
and Systems Issues, GAO-04-578T, Mar. 23, 2004, p. 33. A congressional
requirement concerning resource management was levied on the
FBI by P.L.
108-199. By Mar. 15, 2004, the FBI is to provide a report
to the Committees on Appropriations a report which "...details
the FBI's plan to succeed at its terrorist prevention and law
enforcement responsibilities, including proposed agent and support
personnel levels for each division."
93. (back)Ibid.,
p. 14.
94. (back)Ibid.,
p. 23.
95. (back)Ibid.,
p. 22.
96. (back)See "FBI
Reorganization: Progress Made in Efforts to Transform, But Major
Challenges Continue," statement by David M. Walker, Comptroller
of the United States, General Accounting Office, in U.S. Congress,
House Committee on Appropriations, Subcommittee on Commerce,
Justice, State and the Judiciary, June 18, 2003, p. 8.
97. (back)See
statement of Richard Thornburgh, Chairman, Academy Panel on FBI
Reorganization, National Academy of Public Administration, in
U.S. Congress, House Committee on Appropriations, Subcommittee
on Commerce, State, Justice, the Judiciary and Related Agencies,
June 18, 2003, p. 4.
98. (back)Interview
with a former senior FBI official, Oct. 2, 2003.
99. (back)See
statement of William P. Barr, former Attorney General of the
United States, before the House Permanent Select Committee on
Intelligence, Oct. 30, 2003, p.18.
100. (back)See "FBI
Creates Structure to Support Intelligence Mission," U.S. Department
of Justice, Federal Bureau of Investigation, press release, Apr.
3, 2003. The results of these examinations remain classified.
101. (back)Interview
with a former senior intelligence official, Oct. 15, 2003.
102. (back)See
William E. Odom, Fixing Intelligence for a More Secure America,
2003, (Yale University Press) p. 177.
103. (back)Interview
with a former senior FBI official, Aug. 21, 2003.
104. (back)See
statement of John MacGaffin, III, before the National Commission
on Terrorist Attacks upon the United States, Dec. 8, 2003.
105. (back)Interview
with a former senior FBI official, Aug. 21, 2003.
106. (back)Ibid.
107. (back)See
statement of John J. Hamre before the National Commission on
Terrorist Attacks upon the United States, Dec. 8, 2003. Hamre
is a former deputy secretary of defense.
108. (back)See
Siobhan Gorman, Government Executive Magazine, FBI, CIA Remain
Worlds Apart, Aug. 1, 2003. See also Frederick P. Hitz and
Brian J. Weiss, "Helping the FBI and the CIA Connect the Dots
in the War on Terror," International Journal of Intelligence
and Counterintelligence; volume 17, no. 1, Jan. 2004.
109. (back)Interview
with a former senior FBI official, Oct. 2, 2003.
110. (back)Former
FBI Special Agent John J. Connally, Jr., was recently convicted
of racketeering and obstruction of justice for secretly aiding
organized crime leaders in the Boston, Massachusetts area. See
Fox Butterfield, "FBI Agent Linked to Mob is Guilty of Corruption," New
York Times, May 29, 2002, p.14. Special Agent James J. Smith
recently was indicted on one count of gross negligence in handling
national defense information [Title 18, U.S. Code, Section 793(f)]
and with four counts of filing false reports on an asset's reliability
to FBI Headquarters [18 U.S. Code §§1343, 1346]. See http://news.findlaw.com/hdocs/docs/fbi/ussmith50703ind.pdf It
is alleged that Smith and former Special Agent William Cleveland
had sexual relationships with Katrina Leung, an FBI operational
asset informing the FBI on the intelligence activities of the
People's Republic of China (PRC). It is further alleged that
Ms. Leung may have been a double agent for the PRC. Leung has
been charged with unauthorized access and willful retention of
documents relating to national defense [Title 18 U.S. Code, §793(b)].
See http://news.findlaw.com/cnn/docs/fbi/usleung403cmp.pdf James
Smith has pleaded guilty and his trial has been set for February
2005. Katrina Leung's trial is scheduled for September. In addition
to appointing an Inspector-in-Charge to investigate the integrity
of the Chinese counterintelligence program in the FBI's Los Angeles
Field Office (the last FBI Office of employment for Mr. Smith),
the FBI has launched organizational and administrative reviews
to determine why its established accountability system for the
handling of intelligence assets apparently failed in this case.
See FBI press release dated Apr. 9, 2003.
111. (back)See
Statement of Robert S. Mueller, III, Director, Federal Bureau
of Investigation, in U.S. Congress, Senate Select Committee on
Intelligence, Feb. 11, 2003.
112. (back)For
further information on how to assess performance of the FBI,
and the U.S. Government in the war on terrorism, see Daniel Byman, "Measuring
the War on Terrorism: A First Appraisal," in Current History,
Dec. 2003.
113. (back)The
FBI has never experienced problems in recruiting educated analysts,
at least at FBI Headquarters. The FBI, however, has from suffered
a retention problem.
114. (back)See
the JIC Inquiry, Recommendations Section Errata, p.
7.
115. (back)See
Daniel Benjamin and Steven Simon, The Age of Sacred Terror,
p. 298. (Random House).
116. (back)See
the JIC Inquiry, p. 340.
117. (back)Other
IC agencies permit analysts to rise to the analytical equivalent
of Senior Executive Service, or Senior Intelligence Service.
One such program, the Senior Analytic Service (SAS), was established
at the CIA in the late 1990s by CIA Deputy Director John McLaughlin.
The SAS track allows analysts to rise to the senior-most analytic
level, without assuming managerial responsibilities.
118. (back)This
approach is manifested in a recent intelligence analyst job announcement
(04-FO-0515). While the FBI used to recruit intelligence analysts
according to the functional or geographic area of need, it now
asks potential candidates to identify one of four areas of interest,
choosing from: counterintelligence, counterterrorism, criminal
or cyber. According to the announcement, "... Applicants must
identify the program area or interest, however, this does not
guarantee placement in the particular program...." See
https://www.fbijobs.com/JobDesc.asp?src=001&requisitionid=1614&r=021811042620.
119. (back)Although
these types of analyses are not mutually exclusive, they serve
two different sets of consumers -- the executive who is supporting
policymakers, and the special agent who is running an investigation
or operation.
120. (back)For
a policy-oriented discussion of relevant legal and regulatory
changes, see Appendix 7.
121. (back)Dan
Egan, The Washington Post, "FBI Applies New Rules to
Surveillance," Dec. 12, 2003, p. A-1. (Hereafter cited as Egan,
FBI Applies New Rules.)
122. (back)See
statement of Richard Thornburgh, Chairman, Chairman, and Academy
Panel on FBI Reorganization, National Academy of Public Administration,
in U.S. Congress, House Committee on Appropriations, Subcommittee
on Commerce, State, Justice, the Judiciary, and Related Agencies,
June 18, 2003, pp. 21-22.
123. (back)Ibid.,
p. 22.
124. (back)Ibid.
125. (back)See
Dan Egan, "FBI Applies New Rules."
126. (back)Ibid.
127. (back)See
statement of William P. Barr, former United States Attorney General,
in U.S. Congress, House Select Committee on Intelligence, Oct.
30, 2003, p. 14.
128. (back)Ibid.
129. (back)See
Dan Egan,"FBI Applies New Rules."
130. (back)See
statement of Steven C. McCraw, Assistant Director, Federal Bureau
of Investigation, in U.S. Congress, House Select Committee on
Homeland Security, July 24, 2003.
131. (back)See
statement of Robert S. Mueller, III, Director, Federal Bureau
of Investigation, in U.S. Congress, House Committee on Appropriations,
Subcommittee on Commerce, Justice, State and Judiciary June 21,
2002, transcript, p. 30.
132. (back)See
Statement of Assistant Director Steven C. McCraw, Federal Bureau
of Investigation, in U.S. Congress, House Select Committee on
Homeland Security, Subcommittee on Intelligence and Counterterrorism,
July 24, 2003.
133. (back)Interview
with a local law enforcement official, Nov. 18, 2003.
134. (back)Interview
with a former senior FBI official, Nov. 13, 2003.
135. (back)See "Creating
a Trusted Network for Homeland Security," The Markle Foundation,
Dec. 2, 2003, p. 2.
136. (back)See Creating
a Trusted Network for Homeland Security, Second Report
of the Markle Foundation Task Force, Dec.2, 2003.
137. (back)The
Markle Foundation has recommended the creation of a System-wide
Homeland Analysis and Resources Exchange (SHARE) Network, in
which the Department of Homeland Security would assume a central
role in working with federal, state, local and private sector
organizations to establish a strategy and implementing mechanisms
and policies to share and analyze information in a decentralized
manner. See Creating a Trusted Network for Homeland Security,
Exhibit A: "Action Plan for Federal Government Development of
the SHARE Network," Dec. 2, 2003, p. 10.
138. (back)Originator
control, or ORCON, is a process designed to protect categories
of (generally) classified information from being sharing with
unauthorized third parties. If an agency wishes to share ORCON
information it received from another agency, it must first request
ORCON release from the originating agency to share the information
with a specific third party consumer. In terms of providing security
clearances to state and local law enforcement officials with
a "need to know," the FBI has established a streamlined security
process that allows law enforcement officials to receive expedited "secret" clearances
in about nine weeks. See Dan Eggen, "Bridging the Divide Between
FBI and Police," The Washington Post, Feb. 16, 2004,
p. A25.
139. (back)See The
Federal Bureau of Investigation's Efforts to Improve the Sharing
of Intelligence and Other Information, U.S. Department
of Justice, Office of Inspector General, Audit Division, Audit
Report 04-10, Dec. 2003, p.iv.
140. (back)See
Gerard R. Murphy and Martha R. Plotkin, Protecting Your Community
from Terrorism: Strategies for Local Law Enforcement (Volume
1 -- Local-Federal Partnerships), Police Executive Research
Forum, as supported by the U.S. Department of Justice, Office
of Community Oriented Policing, Mar. 2003.
141. (back)Many
of the state and local law enforcement officials interviewed
for this report also had substantial experience at the federal
level, both in the IC and in law enforcement. They said they
therefore well understand the inherent capabilities and limitations
of intelligence and the roles foreign intelligence and criminal
intelligence play in preventing terrorism.
142. (back)Interview
with a local law enforcement official, Nov. 18, 2003.
143. (back)Interview
with a state law enforcement official, Nov. 13, 2003.
144. (back)One
local law enforcement official suggested that the JTTFs are where
the investigative expertise lies, and should be retained. However,
he suggested that in order to be more valuable in preventing
terrorist acts domestically, the JTTFs should be reorganized
around the concept of "joint ness," and cited the "Goldwater
Nichols" Department of Defense Reorganization Act as a model.
The "joint ness" envisioned by this official would have state
and local law enforcement, federal law enforcement, and IC entities
responsible for counterterrorism, operate in an integrated and
seamless environment. As envisioned by this local law enforcement
official, consistent with joint officers in the military, promotion
to senior level positions at the parent agency would be contingent
upon a successful rotation to the "Joint" Terrorism Task Forces.
The Goldwater-Nichols Department of Defense Reorganization Act
of 1986 (P.L.
99-433) integrated the operational capabilities of the military
services. For further information on Goldwater-Nichols, see
http://www.ndu.edu/library/goldnich/goldnich.html.
H.R. 3439, the "JTTF Enhancement Act of 2003" proposes that 1)
there be a greater degree of participation in the JTTFs from
DHS Bureau of Immigration and Customs Enforcement officials;
and 2) a program be established to detail state and local law
enforcement officers to the CIA, or CIA personnel to state and
local law enforcement organizations.
145. (back)Interview
with a state law enforcement official, Nov. 13, 2003.
146. (back)See "Blue
Spies for City," New York Post, June 29, 2003. The New
York Police Department (NYPD), in what it describes as a substantial
resource investment, has dedicated more than 100 officers to
the New York JTTF. According to NYPD officials, there has been
a steady improvement in the flow of information between the NY
JTTF and the NYPD. But there also have been occasions when police
officials have requested information from the FBI and the IC,
but failed to receive a timely response. As result, the NYPD
has stationed several of its officers overseas to better protect
the city's security needs by collecting information regarding
terrorist activities. As one New York City official commented, "We're
not looking to supplant anything that is being done by the Federal
government. We're looking to supplement. We're looking to get
the New York question asked."
147. (back)See
Northeast Regional Agreement Information Sharing Proposal, Sept.
22, 2003. The states engaged in this effort include Connecticut,
Delaware, Maine, Massachusetts, New Hampshire, New Jersey, New
York, Pennsylvania, Rhode Island, and Vermont. These proposed "centers" are
distinct from the existing Homeland Security Information Network
(HSIN). The HSIN uses the Joint Regional Information Exchange
System (JRIES) to foster communication among federal, state and
local officials involved in counterterrorism information. Currently,
the system contains only information categorized as "sensitive
but unclassified." See "Homeland Security Information Network
to Expand Collaboration, Connectivity for States and Major Cities," Department
of Homeland Security, Press Release, Feb. 24, 2004.
148. (back)Ibid.
149. (back)Proponents
contend that state and localities should have access to raw foreign
intelligence, because the analysts they have been able to recruit
are often superior to those the FBI employs in its field offices.
Moreover, they argue that FBI analysts, unlike their local counterparts,
are unfamiliar with local infrastructure needing protection,
and provide inferior analysis. In asking for more intelligence
sharing, state and local officials say they recognize and respect
the FBI's authority to conduct terrorism investigations, but
insist they need access to unfiltered foreign intelligence in
order to protect state and local security needs.
150. (back)See
Appendix 3 (page 48) for additional information.
151. (back)At
the beginning of the 108th Congress, the House Select Committee
on Homeland Security was established. Along with the Senate Governmental
Affairs Committee, this new committee now shares FBI oversight
responsibilities.
152. (back)See
Cory Reiss, "Graham's security complaints might bite back," The Gainesville
Sun, May 27, 2003.
153. (back)See
Ellen Laipson, President and Chief Executive Officer, the Henry
L. Stimson Center, "Foreign Intelligence Challenges post September-11," a
paper delivered at the Lexington Institute's conference titled "Progress
Towards Homeland Security: An Interim Report Card," Feb. 27,
2003. http://www.lexingtoninstitute.org/homeland/Laipson.pdf.
154. (back)See
statement by David M. Walker, Comptroller General of the United
States, Government Accounting Office, before the Subcommittee
on Commerce, Justice, State and the Judiciary, Committee on Appropriations,
United States House of Representatives, June 21, 2002, p. 18.
155. (back)See
remarks of Congressman David Obey during a hearing in U.S. Congress,
House Committee on Appropriations, Subcommittee on Justice, State
and Judiciary, June 21, 2002.
156. (back)See
Cory Reiss, "Graham's Security Complaints Might Bite Back," The
Gainesville Sun, May 27, 2003.
157. (back)Ibid.
158. (back)Ibid.
159. (back)Ibid.
160. (back)Ibid.
161. (back)See
the Gilmore Commission, Fourth Annual Report to the President
and Congress. pp. 44-45.
162. (back)For
a treatment of the evolution of the relationship between law
enforcement and intelligence, see CRS
Report RL30252, Intelligence and Law Enforcement: Countering
Transnational Threats to the U.S., by Richard A. Best Jr.
163. (back)The
Central Intelligence Agency's Senior Analytic Service might serve
as a possible model for elevating senior analysts to the non-managerial
analytical equivalent of Senior Executive Service special agents.
164. (back)FBI
legal attaches serve in overseas posts, and are declared to the
host country. Legal attaches serve as the FBI's link to foreign
law enforcement and security services. While legal attaches conduct
overt liaison with foreign services, they do not engage in clandestine
intelligence collection overseas.
165. (back)See
Richard A. Clarke, Against All Enemies: Inside America's
War on Terror, (Free Press, 2004), pp. 254-256.
166. (back)U.S.
Senator John Edwards introduced S.
410, The Foreign Intelligence Collection Improvement Act
of 2003,which would establish a Homeland Intelligence Agency
within DHS.
167. (back)See CRS
Report RL31920, Domestic Intelligence in the United
Kingdom: Applicability of the MI-5 Model to the United States,
by Todd Masse.
168. (back)See
Gilmore Commission, Fourth Annual Report to the President
and Congress. p. 42.
169. (back)See CRS
Report RL31920, Domestic Intelligence in the United
Kingdom: Applicability of the MI-5 Model to the United States,
by Todd Masse.
170. (back)The
Director of Central Intelligence serves as both the leader of
the Central Intelligence Agency, and as Director of the broader
U.S. Intelligence Community. The proposed 9/11 Intelligence Memorial
Reform Act (S.
1520) would create a Director of National Intelligence. That
individual would be precluded from simultaneous service as the
Director of the CIA and Director of National Intelligence. Some
have argued this proposal would undermine the DCI's power base.
See Robert M. Gates, "How Not to Reform Intelligence," Wall
Street Journal, Sept. 3, 2003. Finally, while the TTIC reports
to the Director of Central Intelligence as leader of the Intelligence
Community, the organization has been categorized as a "joint
venture" of Intelligence Community participants.
171. (back)See
statement by John Deutch, former Director of Central Intelligence,
before the National Commission on Terrorist Attacks upon the
United States, Oct. 15, 2003, p. 5.
172. (back)Ibid.,
p. 5.
173. (back)See
Gilmore Commission, Fourth Annual Report to the President
and Congress, p. 41.
174. (back)Ibid.,
pp. 41-47.
175. (back)Ibid.,
p. 44.
176. (back)Ibid.,
pp. 43-44.
177. (back)Ibid.,
p. 44.
178. (back)Ibid.,
p. 41.
179. (back)According
to former House Intelligence Committee Chairman Lee Hamilton, "if
the shortcomings leading up to Sept. 11 were systemic in nature,
the solution lies in better system management, the handling and
analysis of vast amounts of information, and the distribution
in a timely manner of the key conclusions to the right people." See
the JIC Inquiry, p. 350.
180. (back)Ibid,
p. 351. According to former FBI Director William Webster, the
MI-5 concept is inapplicable in the U.S. context. "We're not
England," Webster said. "We're not 500 miles across our territory.
We have thousands of miles to cover. Would you propose to create
an organization that had people all over the United States, as
the FBI does?" He instead supports training FBI personnel to
be more responsive to terrorist threats. He further argues that, "More
than any other kind of threat, there is an interrelationship
between law enforcement and intelligence in dealing with the
problem of terrorism...We need investigative capability and intelligence
collection capability, as well as those who go through the bits
and pieces and fill in the dots."
181. (back)See
statement of William P. Barr, former United States Attorney General,
in U.S. Congress, House Select Committee on Intelligence, Oct.
30, 2003, p. 13.
182. (back)Ibid,
p. 18. Former Attorney General Barr testified, "An idea making
the rounds these days is the notion of severing "domestic intelligence" from
the FBI and creating a new domestic spy agency akin to Britain's
MI-5. I think this is preposterous and goes in exactly the wrong
direction. Artificial stove-piping hurts our counterterrorism
efforts. What we need to do now is meld intelligence and law
enforcement more closely together, not tear them apart. We already
have too many agencies and creating still another simply adds
more bureaucracy, spawns intractable and debilitating turf wars,
and creates further barriers to the kind of seamless integration
that is needed in this area."
183. (back)Ibid.,
p. 14.
184. (back)See
Center for Democracy, "Domestic Intelligence Agencies: The Mixed
Record of the UK's MI5," Jan. 27, 2003.
185. (back)See
National Security Act of 1947, as amended (50 U.S. Code, Chapter
15, 401(a) and Executive Order 12333, 3.4.
186. (back)Ibid.
187. (back)See Code
of Federal Regulations, Part 23.
188. (back)For
a more detailed description of the FBI's traditional intelligence
role, see Appendix 2.
189. (back)For
an official history of the FBI, see http://www.fbi.gov/fbihistory.htm.
See also CRS
Report RL32095(pdf), The FBI: Past, Present and Future,
by William Krouse and Todd Masse.
190. (back)Interview
with a former senior FBI official, Oct. 3, 2003.
191. (back)The
successful prosecution of an espionage case can be viewed as
both a counterintelligence success, and failure. It is a success
insofar as the activity is stopped, but is a failure insofar
as the activity escaped the attention of appropriate authorities
for any period of time.
192. (back)See
CRS Report 93-531, Individuals Arrested on Charges of Espionage
Against the United States Government: 1966-1993, by Suzanne
Cavanagh (available from the authors of this report). For a compilation
of espionage cases through 1999, see
http://www.dss.mil/training/espionage.
193. (back)See
Tony Poveda, Lawlessness and Reform: The FBI in Transition,
Brooks/Cole Publishing, 1990.
194. (back)See
Edwin Hoyt Palmer, The Palmer Raids,1919-1921: An Attempt
to Suppress Dissent, Seabury Press, 1969.
195. (back)For
further information on the history of COINTELPRO, see S.Rept.
94-755, Supplementary Detailed Staff Reports of Intelligence
Activities and the Rights of Americans, Book III, Final
Report of the Select Committee to Study Governmental Operations
with Respect to Intelligence Activities, U.S. Senate, (Washington,
Apr. 23, 1976); (Hereafter cited as the Church Committee Report).
196. (back)See
Church Committee Report, Intelligence Activities and the
Rights of Americans, Book II, p.71.
197. (back)The
Foreign Agent Registration Act requires that persons acting as
foreign agents (as defined by the act) register with the U.S.
Department of Justice for, among other reasons, transparency.
(see 22 U.S.C. Chap. 611)
198. (back)See "The
FBI and CISPES," a report of the Select Committee on Intelligence,
U.S. (S.Rept. 101-46, July 1989).
199. (back)See
Bill Gertz, Breakdown: How America's Intelligence Failures
Led to September 11, 2002, pp. 83-125. (Regnery Publishing).
200. (back)According
to the Levi guidelines, domestic security investigations were
to be limited to gathering information on group or individual
activities "... which involve or will involve the use of force
or violence and which involve or will involve a violation of
federal law...."
201. (back)See
Testimony of Francis J. McNamara, former Subversive Activities
Control Board Director, before the National Committee to Restore
Internal Security, May 20, 1986. Quoted in W. Raymond Wannall, "Undermining
Counterintelligence Capability," International Journal
of Intelligence and Counterintelligence, vol. 15, winter
2002, pp. 321-329.
202. (back)Interviews
with former senior FBI officials.
203. (back)See
statement of Robert S. Mueller III, Director, Federal Bureau
of Investigation, in U.S. Congress Senate Judiciary Committee,
July 23, 2003.
204. (back)Interview
with local law enforcement official, Apr. 5, 2004.
205. (back)Interview
with a former senior FBI official, Oct. 2, 2003.
206. (back)A
fourth division -- cyber crime -- was established in Apr. 2002.
Until the appointment of the EAD-I, it, too, had its own intelligence
component.
207. (back)Interview
with a former senior FBI official, Oct. 2, 2003.
208. (back)According
to Executive Order 12333, counterintelligence includes international
terrorist activities. See Appendix 1.
209. (back)See "Spying," The
Economist, July 10, 2003.
210. (back)Ibid.
211. (back)Ibid.
212. (back)United
States persons means a United States citizen, an alien known
by the intelligence agency concerned to be a permanent resident
alien, an unincorporated association substantially composed of
United States citizens or permanent resident aliens or a corporation
incorporated in the United States, except in the case of a corporation
directed and controlled by a foreign government, or governments. See
United States Intelligence Activities, Executive Order 12333,
Dec. 4, 1981.
213. (back)Richard
Betts, Member of the National Commission on Terrorism and Director
of the Institute of War and Peace Studies at Columbia University,
contends that the balance between civil liberties and security
is one in which a differentiation between two types of constraints
on civil liberties (political censorship and compromises of individual
privacy via enhanced surveillance) should be made. According
to Betts, although the former (largely manifested through the
suppression of free speech) will not measurably advance the war
against terrorism, and should not be tolerated, greater acceptance
of the latter, with appropriate measures for keeping secret irrelevant
byproduct intelligence, may yield "...the biggest payoff for
counterterrorism intelligence." See "Fixing Intelligence," Foreign
Affairs, Jan./Feb. 2002.
214. (back)These
policy guidelines include The Attorney General's Guidelines
on Domestic Security Investigations (April 5, 1976 -- Attorney
General Edward H. Levi), The Attorney General Guidelines
on Criminal Investigations of Individuals and Organizations Dec.
2, 1980 -- Attorney General Benjamin R. Civiletti), The Attorney
General's Guidelines on General Crimes, Racketeering Enterprise
and Domestic Security,/Terrorism Investigations (Mar. 7,
1983 -- Attorney General William French Smith), The Attorney
General's Guidelines on General Crimes, Racketeering Enterprise
and Domestic Security/Terrorism Investigations (Mar. 21,
1989 -- Attorney General Richard Thornburgh), The Attorney
General's Guidelines on General Crimes, Racketeering Enterprise
and Domestic Security/Terrorism Investigations (Memorandum
from Acting Deputy Attorney General Jo Ann Harris to Attorney
General Janet Reno recommending a change in the guidelines; approved
by Attorney General Reno on April 19, 1994.), The Attorney
General's Guidelines on General Crimes, Racketeering Enterprise
and Terrorism Enterprise Investigations (May 30, 2002 -
Attorney General John Ashcroft), and The Attorney General's
Guidelines for FBI National Security Investigations and Foreign
Intelligence Collection (U) (Oct. 31, 2003 - Attorney General
John Ashcroft). Other guidelines -- classified and unclassified
- regulating the use of confidential informants, undercover operations,
and procedures for lawful, warrant less monitoring of verbal
conversations may also play a role in the gathering of domestic
intelligence.
215. (back)See
CRS Report RL30465, The Foreign Intelligence Surveillance
Act: An Overview of the Statutory Framework and Recent Judicial
Decisions, Mar. 31, 2003, by Elizabeth B. Bazan. See also CRS
Report RL31377, The USA PATRIOT Act: A Legal Analysis,
by Charles Doyle. See also CRS Report RL31200(pdf), Terrorism:
Section by Section Analysis of the USA PATRIOT Act, by Charles
Doyle. See Title II - Enhanced Surveillance Procedures (Section
203 "Authority to Share Criminal Investigative Information," altered
rule 6(e) of the Federal Rules of Criminal Procedure[2003
Edition] to permit the sharing of grand jury information
with "federal law enforcement, intelligence, protective, immigration,
national defense, or national security officials for official
duties.") Section 203 of the USA PATRIOT Act authorized sharing
of information gathered through electronic surveillance as part
of a criminal investigation under 18 U.S.C. §2517, as well as
the sharing of foreign intelligence and counterintelligence gathered
as part of a criminal investigation with any Federal law enforcement,
intelligence, protective, immigration, national defense, or national
security official in order to assist that official in performance
of his official duties, 50 U.S.C. § 403-5d. See also P.L.
107-56, Title V -- Removal of Obstacles to Investigating
Terrorism, and Title IX -- Improved Intelligence.
216. (back)The
requirement and standard was changed from "the purpose" to "a
significant purpose." Section 218 of the USA PATRIOT Act of 2001, P.L.
107-56, codified at 50 U.S.C. § 1804(a)(7)(B).
217. (back)50
U.S.C. §1805(a)(3)(A). See numerous references to this standard
in USA PATRIOT Act of 2001, P.L.
107-56, Title II -- Enhanced Surveillance Procedures. Prohibitions
against electronic surveillance or physical searches under FISA
based solely on First Amendment protected activities pre-date
the USA PATRIOT Act. However, the USA PATRIOT Act added similar
language to the pen register and trap and trace devices part
of FISA. See FISA, 50 U.S.C. §§1842 and 1843.
218. (back)The
definition of financial institution as set out in the Intelligence
Authorization Act for FY2004 (P.L.
108-177), adopts the language of Title 31, U.S. Code, §§(a)
(2) and (c) (1), which includes any credit union, thrift institution,
broker or dealer in equities or commodities, currency exchange,
insurance company, pawn broker, travel agency, and/or operator
of a credit card system, among others.
219. (back)See
annual reports of the U.S. Justice Department to the Speaker
of the U.S. House of Representatives, as required by the Foreign
Intelligence Surveillance Act of 1978, as amended (Title 50 U.S.
Code, §1807). Statistics and annual reports compiled by the Federation
of American Scientists (see http://www.fas.org/irp/agency/doj/fisa/).
This increase is attributable, at least in part, to Section 218
of the USA PATRIOT Act (P.L.
107-56) which changed the legal standard concerning the purpose
of the surveillance and its relationship to foreign intelligence
information. According to the original language, "the purpose" of
the surveillance had to be to obtain foreign intelligence information.
The new language demands certification that foreign intelligence
gathering is a "significant purpose" of the requested surveillance.
220. (back)See
Statement of Robert S. Mueller, III, Director, Federal Bureau
of Investigation, before the Judiciary Committee, United States
Senate, July 23, 2003.
221. (back)See
Dan Eggen, "FBI Applies New Rules to Surveillance," Washington
Post, Dec. 13, 2003, p. A1.
222. (back)Ibid.
Return to CONTENTS section
of this Long Report.
