FBI Intelligence Reform Since September 11, 2001: Issues and Options for Congress
Congressional research reportAug 4, 2004
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Order Code RL32336
CRS Report for Congress
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FBI Intelligence Reform Since September 11,
2001: Issues and Options for Congress
Updated August 4, 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
Congressional Research Service ˜ The Library of Congress
FBI Intelligence Reform Since September 11, 2001:
Issues and Options for Congress
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. In the most recent iteration of the debate,
the 9/11 Commission concluded that the FBI has made significant progress in
improving its intelligence capabilities, and generally endorsed Director Mueller’s
reforms, rejecting the creation of a new domestic intelligence agency.
This report identifies five options for Congress to consider, including the
creation of a domestic intelligence agency like Great Britain’s MI-5. Other options
include maintaining the status quo, transferring such responsibilities to the
Department of Homeland Security or to the Director of Central Intelligence, or
creating a national security intelligence service within the FBI. Meanwhile, for a
variety of reasons, the 9/11 Commission has recommended leaving counterterrorism
intelligence collection with the FBI, and creating an integrated national security
workforce within the bureau.
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
FBI Intelligence Reforms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Business Process Changes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
The Intelligence Cycle . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Centralized Headquarters Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Organizational Changes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
New Position of Executive Assistant Director for Intelligence
(EAD-I) and the Office of Intelligence . . . . . . . . . . . . . . . . . . . . . 9
New Field Office Intelligence Groups . . . . . . . . . . . . . . . . . . . . . . . . . . 9
New National (and More Regional) Joint Terrorism Task Force (s) . . 10
Participation in the New Terrorist Threat Integration Center . . . . . . . 11
New Position of Executive Assistant Director for Law
Enforcement Services . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Resource Enhancement and Allocation Changes . . . . . . . . . . . . . . . . . . . . . 11
More Special Agent Intelligence Collectors . . . . . . . . . . . . . . . . . . . . 12
More Intelligence Analysts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Revamped Intelligence Training . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Improved Technology . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
More Intelligence Sharing Within the FBI . . . . . . . . . . . . . . . . . . . . . . 15
Improved Intelligence Sharing with Other Federal Agencies and
State and Local Officials . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Issues for Congress . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
The Role of Centralized Decision-Making in Strengthening FBI
Intelligence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Supporters Contend Centralized Management Will Help
Prevent Terrorism by Improving FBI’s Intelligence Program . . . 17
Skeptics Agree Strong Intelligence Essential, But Question Whether
Centralized Decision-Making Will Improve Program . . . . . . . . 18
Skeptics Believe FBI’s Law Enforcement Culture Will Prove
Impervious to Centralized Decision-Making . . . . . . . . . . . 18
Skeptics Also Question Whether Centralized Decision-Making
Can Overcome FBI’s Lack of Intelligence Experience . . . . 19
Implementation Challenges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Technology . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
FBI Field Leadership . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Lack of Specific Implementation Plans and Performance Metrics . . . 21
Funding and Personnel Resources to Support Intelligence Reform . . . 22
Changes in The Intelligence Cycle . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Will the Changes in the Collection Requirements Produce
Desired Results? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Are Changes in Collection Techniques Adequate? . . . . . . . . . . . 25
Are Analytical Capabilities Sufficient? . . . . . . . . . . . . . . . . . . . . 27
Are Efforts to Improve Intelligence Sharing Adequate? . . . . . . . 29
Congressional Oversight Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Oversight Effectiveness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Eliminating Committee Term Limits . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Consolidating Oversight Under the Intelligence Committees . . . . . . . 38
Options . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Option 1: Status Quo . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Option 2: Creation of a National Security Intelligence Service within
the FBI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Option 3: Transfer of Existing FBI National Foreign Intelligence
Program Resources to Department of Homeland Security . . . . . . . . . 41
Option 4: Transfer of Existing FBI National Foreign Intelligence
Program Resources to the DCI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Option 5: Creation of a New Domestic Security Intelligence Service . . . . . 43
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Appendix 1: Definitions of Intelligence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Appendix 2:The FBI’s Traditional Role in Intelligence . . . . . . . . . . . . . . . . . . . 48
Appendix 3: The FBI’s Intelligence Programs — A Brief History . . . . . . . . . . . 49
FBI Excesses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Oversight and Regulation: The Pendulum Swings . . . . . . . . . . . . . . . . . . . 50
Appendix 4: The Case File as an Organizing Concept, and Implications
for Prevention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
Appendix 5: Past Efforts to Reform FBI Intelligence . . . . . . . . . . . . . . . . . . . . . 53
Appendix 6: Counterterrorism and Counterintelligence . . . . . . . . . . . . . . . . . . . 54
Appendix 7: Relevant Legal and Regulatory Changes . . . . . . . . . . . . . . . . . . . . 56
Appendix 8: 9/11 Commission Recommendations Regarding an Integrated
FBI National Security Workforce . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
List of Figures
Figure 1: The Intelligence Cycle . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
FBI Intelligence Reform Since September
11, 2001: Issues and Options for Congress
Introduction1
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-driven3
agency that can prevent acts of terrorism.4
FBI Director Robert S. Mueller, III initiated changes that were sparked by
congressional charges that the Intelligence Community (IC),5 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
1
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
William E. Odom, Fixing Intelligence for a More Secure America (New Haven, CT: Yale
University Press, 2003), p. 187.
3
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
It is notable that the House-passed FY2004 Commerce-Justice-State Appropriations Act
(H.R. 4754; H.Rept. 108-576) includes provisions that would authorized several FBI
personnel reforms.
5
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.
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Activities Before and After the Terrorist Attacks of September 11, 2001,6 (JIC)
criticized the FBI for failing to focus on the terrorist threat domestically; collect
useful intelligence; strategically analyze intelligence,7 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 on8 and defend against the foreign
terrorist threat to the United States.9
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 slowly10 and are
too limited.11 They argue that the FBI’s deeply rooted law enforcement culture and
its reactive practice of investigating crimes after the fact,12 will undermine efforts to
6
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)
7
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.
8
See the JIC Inquiry, p. 37.
9
Ibid., p. 39.
10
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.”
11
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.
12
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
(continued...)
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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.13 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,14
sufficiently understands the role of intelligence to be able to lead an overhaul of the
FBI’s intelligence operation.15
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.16 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.17
In its July 2004 final report, the 9/11 Commission 18 recommended leaving
counterterrorism intelligence collection with the FBI, and creating an integrated
national security workforce within the bureau. Such an option has been often
referred to as “creating a service within a service.” For a variety of reasons, the 9/11
Commission rejected the option of creating a new domestic intelligence agency like
12
(...continued)
structural conditions. See William E. Odom, Fixing Intelligence for a More Secure
America, p. 3.
13
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.
14
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.
15
Interview with a former senior FBI official, with an extensive intelligence background,
Aug. 21, 2003.
16
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.
17
18
Ibid., pp. 16-17.
The 9/11 Commission is formally known as the National Commission on Terrorist Attacks
Upon the United States, and was created by law in late 2002 (P.L. 107-306, Nov. 27, 2003).
It was chartered to prepare a full and complete account of the circumstances surrounding the
September 11, 2001 terrorist attacks, including preparedness for and the immediate response
to the attacks. The Commission also was mandated to provide recommendations designed
to guard against future attacks.
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Great Britain’s MI-5.19 These and other options are discussed in greater detail below
as well.
The 9/11 Commission, in its recent contribution to the debate, essentially
endorsed the FBI reforms, noting that the FBI, under Director Mueller, “has made
significant progress in improving its intelligence capabilities,”20 The commission
recommended that the FBI establish a specialized and integrated national security
workforce consisting of agents, analysts, linguists, and surveillance specialists who
are recruited, trained, rewarded, and retained to ensure the development of an
institutional culture with a deep expertise in intelligence and national security.
The commission expressed concern that management in the field offices still can
allocate people and resources to local concerns that diverge from the national
security mission, and that this system could revert to a focus on lower-priority
criminal justice cases over national security requirements. To address this concern,
the commission recommended that each field office should have an official at the
field office’s deputy level for national security matters. This individual would have
management oversight and ensure that the national priorities are carried out in the
field.21
Following the release of the 9/11 Commission’s report, FBI Director Mueller
said the FBI embraced most of the commission’s recommendations. With regard to
the commission’s recommendation that each field office should have an official at
the deputy level to ensure that national security priorities are addressed, the FBI
stated in a July 22, 2004 press release:
Our Field Intelligence Groups currently report directly to an ASAC (Assistant
Special Agent in Charge). In some field offices, these ASACs have broader
responsibility for national security matters. We will look closely at this
recommendation.22
According to the FBI, ASACs at some field offices have responsibilities
broader than just national security matters, raising the question as to whether ASACs
in each instance will ensure that national security priorities are carried out.
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
19
National Commission on Terrorist Attacks upon the United States, The 9/11 Commission
Report: Final Report of the National Commission on Terrorist Attacks upon the United
States, (Washington, 2004), pp. 423-428.
20
Ibid., p. 425.
21
Ibid., pp. 425-426.
22
See Federal Bureau of Investigation, “FBI Responds to Report of the National
Commission on Terrorist Attacks Upon the United States,” press release, July 22, 2004.
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in favor of a new separate domestic intelligence agency entirely independent of the
FBI, as some have advocated.23
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.24 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.”25
!
Conduct all-source analysis.26 “... 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
23
See the Gilmore Commission, Fourth Annual Report to the President and Congress, pp.
43-44.
24
The Congressional Research Service has recently published a related report on the FBI.
For a history of the FBI, see CRS Report RL32095, The FBI: Past, Present and Future, by
Todd Masse and William Krouse.
25
26
See the JIC Inquiry, p. xv.
All-source intelligence analysis is that analysis which is based on all available collection
sources.
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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.”27
!
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.”28
!
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.”29
!
Develop effective information technology systems. The FBI relied
upon “... outdated and insufficient technical systems....”30
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
27
See the JIC Inquiry, p. 37.
28
Ibid., pp. 38-39.
29
Ibid., pp. 337-338.
30
Ibid., p. xvi.
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necessary if the FBI is to successfully establish an effective intelligence program that
is both internally coordinated and integrated with its Intelligence Community
Figure 1: The Intelligence Cycle
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.31
31
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
(continued...)
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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.32 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.33 He
restated that intelligence had always been one of the FBI’s core competencies34 and
organic to the FBI’s investigative mission,35 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.
31
(...continued)
Assistant Director, Office of Intelligence, reports to the Executive Assistant Director for
Intelligence.
32
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.
33
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.
34
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.
35
See statement of Robert S. Mueller, III, Director, Federal Bureau of Investigation, in U.S.
Congress, Senate Judiciary Committee, July 23, 2003.
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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.36 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.37 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).38
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.39
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
36
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.
37
See statement of Robert S. Mueller, III, Director, Federal Bureau of Investigation, before
the Joint Inquiry, Oct. 17, 2002.
38
39
The establishment of TTIC, and its mission, is addressed later in this section.
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, SpecialAgent-in-Charge of the FBI’s Washington Field Office, was appointed to lead the office on
an acting basis in mid-Dec. 2003.
CRS-10
local intelligence resources in a manner which is consistent with national priorities.40
A field intelligence group is comprised of intelligence analysts,41 who conduct largely
tactical analyses; special agents, who are responsible for intelligence collection; and
reports officers, a newly created position.42 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.43
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).44 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).45 With respect to regional
40
See FBI Field Office Intelligence Operations, Concept of Operations, Aug. 2003.
41
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.
42
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.
43
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.”
44
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.
45
See statement of Larry A. Mefford, Executive Assistant Director — Counterterrorism and
(continued...)
CRS-11
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.46 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 FY2004.47 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.48 According to Maureen Baginski, EAD for Intelligence, this year the FBI
45
(...continued)
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.
46
See CRS Report RS21283, Homeland Security: Intelligence Support, by Richard A. Best,
Jr.
47
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).
48
See U.S. Department of Justice, Justice Management Division, “2005 Budget and
(continued...)
CRS-12
plans to hire 900 intelligence analysts, mostly in FBI field offices.49 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),50 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.51 From a recruitment
48
(...continued)
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.
49
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.
50
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.
51
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 postSept. 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, welltrained FBI special agent could have a significant effect on U.S. national security.
CRS-13
perspective, the FBI recently established “intelligence” as a “critical skill need” for
special agent recruitment.52
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.53
Prior to September 11, the FBI employed 159 counterterrorism analysts.54 The FBI
requested and received an additional 214 analytical positions as part of its FY2004
funding.55 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.56 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 degree57 and
a new cognitive ability testing process, have been developed.
52
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].
53
See Concept of Operations, Human Talent for Intelligence Production, Federal Bureau
of Investigation, Aug. 2003.
54
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.
55
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).
56
57
See “Human Talent for Intelligence Production,” FBI Concept of Operations, Aug. 2003.
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.
CRS-14
Revamped Intelligence Training.58 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.59
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) topics60 — principally Counterintelligence and
Counterterrorism61 — in new agent training has increased from 28 hours (4.1% of
total training) to 80 hours (11.8% of total training).62 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.63
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”64 — included a substantial amount of
58
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.
59
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.
60
The National Foreign Intelligence Program (NFIP) budget includes a number of nationallevel 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.
61
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.
62
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.
63
Interview with an FBI official, Jan. 15, 2004.
64
See “Human Talent for Intelligence Production,” the Federal Bureau of Investigation,
(continued...)
CRS-15
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,65 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,66
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.67
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
64
(...continued)
Sept. 2003.
65
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).
66
See “FBI Director Says Technology Investments Are Paying Off,” Government Executive,
Apr. 10, 2003.
67
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.
CRS-16
Justice Department, and subject to scrutiny by criminal courts and the secret Foreign
Intelligence Surveillance Court.”68 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.69
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.70 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
! Congressional oversight.
!
!
68
Dan Eggen, “FBI Applies New Rules to Surveillance,” Washington Post, Dec. 13, 2003,
p. A1.
69
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.
70
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.
CRS-17
The Role of Centralized Decision-Making in Strengthening
FBI Intelligence71
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
71
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]
CRS-18
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,”72 but concede that, “we’re a long way from
getting there.”73
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.”74 As one observer said,
“law enforcement and intelligence don’t fit ... law enforcement always wins.”75
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
72
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.
73
Interview with an FBI official, Jan. 6, 2004.
74
See the JIC Inquiry, p. 224.
75
Interview with a former senior intelligence official, Oct. 15, 2003.
CRS-19
effort on prosecuting criminal cases that result in longer jail terms.76 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.77
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.78
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.79 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.
76
See the JIC Inquiry, p. 224.
77
See testimony of John MacGaffin, III, before the National Commission on Terrorist
Attacks Upon the United States, Dec. 8, 2003, p. 4.
78
See the Gilmore Commission, Fourth Annual Report to the President and Congress, pp.
43-44.
79
Interview with a former senior FBI official, Aug. 21, 2003.
CRS-20
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.80 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.81 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.82
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
80
See the JIC Inquiry, p. 245.
81
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.
82
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.
CRS-21
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.”83
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.84 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.85 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 ....”86 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.
83
See the JIC Inquiry, p. 358.
84
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.
85
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.
86
Interview with a former senior FBI official, Oct. 2, 2003.
CRS-22
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”87 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.88
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 11.89 Of its approximately 1,200 intelligence
analysts, 66% were unqualified, according to the FBI’s own assessment.90 The FBI
also lacked linguists competent in the languages and dialects spoken by radicals
linked to Al-Qaeda.91
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,”92 according to former Attorney General Richard Thornburgh,
who said intelligence analytic support, particularly for counterterrorism, has
improved substantially.93 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
87
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.
88
Interview with an FBI official, Jan. 6, 2004.
89
See the JIC Inquiry, p. 337.
90
Ibid., p. 340. The vast majority of FBI analysts are located in the FBI’s 56 regional field
offices.
91
Ibid., p. 245.
92
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.
93
Ibid., p. 5.
CRS-23
is supporting TTIC .94 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.95 But even supporters caution
that institutional change now underway at the FBI “does not occur overnight and
involves major cultural change.”96 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.97
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.98 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.99 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
2003.100 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%.101
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.102 It also is difficult to assess
94
Ibid., p. 4.
95
Ibid., p. 5.
96
Ibid., p. 3.
97
Ibid.
98
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.”
99
Ibid., p. 14.
100
Ibid., p. 23.
101
Ibid., p. 22.
102
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
(continued...)
CRS-24
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,103 even though efforts were made during the
intervening years to protect resources intended to support the agency’s national
security efforts, including intelligence.104
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
102
(...continued)
on Commerce, Justice, State and the Judiciary, June 18, 2003, p. 8.
103
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.
104
Interview with a former senior FBI official, Oct. 2, 2003.
CRS-25
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.105 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.”106
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.”107 This official was alluding to the fact that terrorist groups may
have different motivations and support networks than organized crime groups.108
Moreover, terrorist groups may be less willing than organized crime enterprises to
105
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.
106
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.
107
108
Interview with a former senior intelligence official, Oct. 15, 2003.
See William E. Odom, Fixing Intelligence for a More Secure America, 2003, (Yale
University Press) p. 177.
CRS-26
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.109 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.110
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.111 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.112 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.113
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,
109
Interview with a former senior FBI official, Aug. 21, 2003.
110
See statement of John MacGaffin, III, before the National Commission on Terrorist
Attacks upon the United States, Dec. 8, 2003.
111
Interview with a former senior FBI official, Aug. 21, 2003.
112
Ibid.
113
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.
CRS-27
some say, those individuals who focus on discrete facts rather than on the
connections between them.114
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.115 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.116
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.117
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.118
114
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.
115
Interview with a former senior FBI official, Oct. 2, 2003.
116
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.
117
See Statement of Robert S. Mueller, III, Director, Federal Bureau of Investigation, in U.S.
Congress, Senate Select Committee on Intelligence, Feb. 11, 2003.
118
For further information on how to assess performance of the FBI, and the U.S.
(continued...)
CRS-28
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.119
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.120
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.121 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.122
118
(...continued)
Government in the war on terrorism, see Daniel Byman, “Measuring the War on Terrorism:
A First Appraisal,” in Current History, Dec. 2003.
119
The FBI has never experienced problems in recruiting educated analysts, at least at FBI
Headquarters. The FBI, however, has from suffered a retention problem.
120
See the JIC Inquiry, Recommendations Section Errata, p. 7.
121
See Daniel Benjamin and Steven Simon, The Age of Sacred Terror, p. 298. (Random
House).
122
See the JIC Inquiry, p. 340.
CRS-29
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.123 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.124
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.125
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
123
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.
124
This approach is manifested in a recent intelligence analyst job announcement (04-FO0515). 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].
125
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.
CRS-30
PATRIOT Act.126 And more recently, by a decision to allow criminal and
intelligence investigators to work side by side.127
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.128 But even supporters
believe that maintaining this commendable record will be a continuing management
challenge, one which will require constant reinforcement.129 They emphasize that the
traditional values of FBI agents as independent and determined must give way to
include values of information sharing and cooperation.130
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.131 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.132
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
126
For a policy-oriented discussion of relevant legal and regulatory changes, see Appendix
7.
127
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.)
128
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.
129
Ibid., p. 22.
130
Ibid.
131
See Dan Egan, “FBI Applies New Rules.”
132
Ibid.
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a dangerous lack of intelligence sharing.133 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.134
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.135
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.136 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.”137
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
133
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.
134
Ibid.
135
See Dan Egan,”FBI Applies New Rules.”
136
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.
137
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.
CRS-32
“sharing of information was primarily case oriented rather than part of an enterprise
wide activity.”138 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.139 Another state office said, “We don’t get anything (of
value) from the FBI.”140
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.141
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.142 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.143
138
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.
139
Interview with a local law enforcement official, Nov. 18, 2003.
140
Interview with a former senior FBI official, Nov. 13, 2003.
141
See “Creating a Trusted Network for Homeland Security,” The Markle Foundation, Dec.
2, 2003, p. 2.
142
See Creating a Trusted Network for Homeland Security, Second Report of the Markle
Foundation Task Force, Dec.2, 2003.
143
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
(continued...)
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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,144 and lack of “... established
policies and procedures that delineate the appropriate processes to be used to share
information and intelligence, either internally or externally.”145
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.”146
While acknowledging some improvement, these officials insist the exchange of
information remains largely one-way.147 And although that hasn’t prevented them
from participating in their local JTTFs, one official said he believed that the FBI did
143
(...continued)
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.
144
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.
145
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.
146
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.
147
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.
CRS-34
not consider him an intelligence consumer.148 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.149
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.150
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.”151
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.152 The centers
148
Interview with a local law enforcement official, Nov. 18, 2003.
149
Interview with a state law enforcement official, Nov. 13, 2003.
150
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.
151
Interview with a state law enforcement official, Nov. 13, 2003.
152
See “Blue Spies for City,” New York Post, June 29, 2003. The New York Police
(continued...)
CRS-35
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.”153 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,”154 at the state level. DHS has not acted on the proposal.155
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.156 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.
152
(...continued)
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.”
153
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.
154
Ibid.
155
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.
156
See Appendix 3 (page 48) for additional information.
CRS-36
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.157 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.158
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.159
At the same time, GAO recommends that continuous internal and independent
external, monitoring and oversight are essential to help ensure that the
157
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.
158
See Cory Reiss, “Graham’s security complaints might bite back,” The Gainesville Sun,
May 27, 2003.
159
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].
CRS-37
implementation of FBI reforms stays on track and achieves its purpose. “It is
important for Congress to actively oversee the proposed transformation.”160
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.161
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.”162
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.163 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.164
“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
160
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.
161
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.
162
See Cory Reiss, “Graham’s Security Complaints Might Bite Back,” The Gainesville Sun,
May 27, 2003.
163
Ibid.
164
Ibid.
CRS-38
on terror, holding money back from the Intelligence Community — that’s the
problem.”165
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.166
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.”167
165
Ibid.
166
Ibid.
167
See the Gilmore Commission, Fourth Annual Report to the President and Congress. pp.
44-45.
CRS-39
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.168
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
168
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.
CRS-40
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.169 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.
169
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.
CRS-41
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.
In its July 2004 final report, the 9/11 Commission recommended leaving
counterterrorism intelligence collection with the FBI, and creating an integrated
national security workforce within the bureau.170 The commission recommended
further that such a workforce should consist of special agents, analysts, linguists, and
surveillance specialists who would be recruited, trained, rewarded, and retained to
ensure the development of an institutional culture dedicated to intelligence and
national security. For a list of specific recommendations made by the commission,
see Appendix 8.
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 attaches171 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).172
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
170
National Commission on Terrorist Attacks upon the United States, The 9/11 Commission
Report: Final Report of the National Commission on Terrorist Attacks upon the United
States, (Washington, 2004), pp. 423-428.
171
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.
172
See Richard A. Clarke, Against All Enemies: Inside America’s War on Terror, (Free
Press, 2004), pp. 254-256.
CRS-42
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.173 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 MI5,174 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.175 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.176
Option 4: Transfer of Existing FBI National Foreign
Intelligence Program Resources to the DCI
173
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.
174
See CRS Report RL31920, Domestic Intelligence in the United Kingdom: Applicability
of the MI-5 Model to the United States, by Todd Masse.
175
176
See Gilmore Commission, Fourth Annual Report to the President and Congress. p. 42.
See CRS Report RL31920, Domestic Intelligence in the United Kingdom: Applicability
of the MI-5 Model to the United States, by Todd Masse.
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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,177 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.178
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.179 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.180
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.181 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.182 It also would lack arrest authorities, but would provide
“actionable” intelligence to those entities, such as the FBI, with authority to take
177
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.
178
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.
179
Ibid., p. 5.
180
See Gilmore Commission, Fourth Annual Report to the President and Congress, p. 41.
181
Ibid., pp. 41-47.
182
Ibid., p. 44.
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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.183 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.184 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.185
In its July 2004 final report, for a variety of reasons, the 9/11 Commission
rejected the option of creating a new domestic intelligence agency like Great
Britain’s MI-5. These reasons included the following:
!
the FBI is well positioned within the Department of Justice to carry
out sensitive domestic intelligence operations in compliance with the
law, while maintaining civil liberties and constitutional norms;
!
the creation of a new domestic intelligence agency would divert
attention from, and disrupt, ongoing counterterrorism efforts at a
time when the threat remains high;
!
the creation of a new domestic intelligence agency would require
allocating scarce resources (in terms of both infrastructure and
personnel), which are already committed to ongoing investigations;
!
the creation of a new domestic intelligence agency would require the
new agency to establish close working relationships with state and
local law enforcement, the U.S. Intelligence Community, and foreign
intelligence and law enforcement agencies;
!
counterterrorism, as well as foreign intelligence, investigations often
evolve into criminal investigations — the FBI currently enjoys the
full-range of investigative authorities to handle such matters; and
183
Ibid., pp. 43-44.
184
Ibid., p. 44.
185
Ibid., p. 41.
CRS-45
!
counterterrorism investigations are often initiated as part of other
criminal investigations, such as money laundering or contraband
smuggling.186
Opponents could also contend 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.187
They also could argue that establishing a separate domestic intelligence service (like
MI-5) is impractical in the U.S. context188 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.189 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.190
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
186
National Commission on Terrorist Attacks upon the United States, The 9/11 Commission
Report, pp. 423-424.
187
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.
188
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.”
189
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.
190
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.”
CRS-46
constraints on the FBI over the past 30 years.191 Finally, opponents could argue that
Britain’s MI-5 has a mixed record of effectiveness.192
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.
191
192
Ibid., p. 14.
See Center for Democracy, “Domestic Intelligence Agencies: The Mixed Record of the
UK’s MI5,” Jan. 27, 2003.
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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.193
!
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.194
!
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].195
193
See National Security Act of 1947, as amended (50 U.S. Code, Chapter 15, 401(a) and
Executive Order 12333, 3.4.
194
Ibid.
195
See Code of Federal Regulations, Part 23.
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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
counterintelligence; and
!
(e) Carry out or contract for research, development, and procurement
of technical systems and devices relating to the functions authorized
above.
foreign
intelligence
and
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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.196 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 1908,197 and, at times, effectively.198 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.199 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.200 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.201 For example, during the 1919-1920 “Palmer
196
For a more detailed description of the FBI’s traditional intelligence role, see Appendix
2.
197
For an official history of the FBI, see [http://www.fbi.gov/fbihistory.htm]. See also CRS
Report RL32095, The FBI: Past, Present and Future, by William Krouse and Todd Masse.
198
Interview with a former senior FBI official, Oct. 3, 2003.
199
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.
200
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].
201
See Tony Poveda, Lawlessness and Reform: The FBI in Transition, Brooks/Cole
(continued...)
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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.202
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.203 In the mid-1960s, the FBI surveilled such prominent Americans as
Martin Luther King, Jr., collecting “racial
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