Secret Agent Scam

The FBI leverages its failures.


After the 9/11 attacks it seemed, well, unseemly to play the blame game. It was clearly a massive government failure. But it's just as clear that if anyone could have thwarted the attack, they would have.

When attention finally turned to U.S. security and law enforcement agencies, they did what comes natural: They shifted the blame. The FBI blamed the CIA. The CIA shot back at the FBI. That got them nowhere; each new revelation made them look more ridiculous. So they turned on those who would limit their authority.

The problem with the FBI, according to the Department of Justice, is that its special agents are unjustly restricted by punctiliousness over civil liberties. Agents aren't allowed to surf the Internet or even read the newspapers in search of crimes. They aren't allowed to collect information on people who aren't likely to commit a crime. In a great preemptive move, Attorney General John Ashcroft announced that the FBI would no longer follow these restrictive rules and issued new ones.

The new rules seek to broaden the FBI's ability to collect information on Americans and people living in the United States. Positive coverage of the changes would have us believe that the old rules were only in place because of "post-Watergate paranoia," as author Mark Riebling wrote in the Wall Street Journal. That was paranoia based on the fact that the FBI, as Nat Hentoff notes, "monitored, infiltrated, manipulated, and secretly fomented divisions within civil rights, anti-war, black, and other entirely lawful organizations who were using the First Amendment to disagree with government policies." The changes are also supported by the claim, made in yesterday's Wall Street Journal, that the old rules kept FBI agents from reading newswires during the Danny Pearl kidnapping.

Think about that. The FBI, while tracking a kidnapping in a foreign country, is restricted from essentially reading the newspaper? It sounds absurd and it is. If it didn't have access to the wires, it's because government managers chose not to spend a portion of its $3.7 billion budget on such access. Is it breaking news that Dow Jones & Company, whose job it is to break news, has better access to information than a government agency?

But there's plenty of reason to believe that it was pure screw-ups, not restrictive rules, that prevented our intelligence agencies from being more useful regarding 9/11. The CIA got information about a January 2000 al Qaeda meeting in Kuala Lumpur, Malaysia, through a wiretap in Yemen, so foreign surveillance wasn't a problem. It either didn't or did hand off information on two participants who had U.S. visas to the FBI. If it didn't, the problem wasn't hand-tying rules from civil liberties whiners restricting the CIA's access to phones or pens and paper.

The FBI didn't track the two individuals once they were in the United States. This, too, wasn't a conscious decision based on restrictive rules that prevented it from watching suspected foreign terrorists. It was an oversight. The FBI didn't need new money-laundering laws or wiretapping or web-surfing authority to track these folks. Agents could have used the San Diego phone book. The FBI admitted as much, when it produced a chart that showed how, had they known the two terrorists were in the country, it could have thwarted their efforts. When the CIA reminded the FBI it did know about the pair, it declined to comment.

What about the famous memos? The FBI agent in Phoenix had the authority to dig up the info on the suspicious flight school students and write it down. The warning just didn't make it through the FBI's D.C. bureaucracy. The same D.C. bureaucrats thwarted the Minnesota effort to search the computer of alleged 20th hijacker Zacarias Moussaoui. As the letter from FBI agent Coleen Rowley maintains, this could have been done under the old standards. There are issues of coordination: If the two offices had been aware of each other's work, higher ups might have taken it seriously. But that's not a problem of rules. Nothing other than competence and other priorities prevents the FBI from coordinating its efforts.

Indeed, the rule change is nothing more than a heroic effort to change the subject while grabbing more powers, as New York Times columnist William Safire noted on Monday. The Center for Democracy & Technology (CDT) analyzed the new guidelines and government claims about them. CDT noted that the FBI already can and does make abundant use of private information sources, the Internet, and keyword searches (such as "anthrax," the example CDT gave). The change is that it will no longer only do so after it has a "reasonable indication" that a crime has or may be committed, a standard that, by its own claims, is much lower than "probable cause." It'll be able to use searches and data mining to generate the "reasonable indication."

The CDT also found that, although allegedly justified by the threat of terrorism, the lower standards of the new guidelines apply to all FBI investigations and activities, everything from anti-drug to anti-porn efforts. The CDT notes that the FBI operates under two sets of guidelines—one for domestic investigations and another for international terrorism, which covers the domestic activities of foreign terrorist suspects such as the two individuals who the FBI didn't watch once they were in the United States. Interestingly, the FBI changed the domestic, not international, guidelines.

There has been at least one high-profile call to turn a part of the FBI into a domestic CIA—a change that would require us to allow surveillance, rather than crime solving. It appears the FBI is already attempting to do just that.