1231

Full Terms & Conditions of access and use can be found at https://www.tandfonline.com/action/journalInformation?journalCode=fint20

Intelligence and National Security

ISSN: 0268-4527 (Print) 1743-9019 (Online) Journal homepage: https://www.tandfonline.com/loi/fint20

The Federal Bureau of Investigation and Change: Addressing US Domestic Counter-terrorism Intelligence

Adam D.M. Svendsen

To cite this article: Adam D.M. Svendsen (2012) The Federal Bureau of Investigation and Change: Addressing US Domestic Counter-terrorism Intelligence, Intelligence and National Security, 27:3, 371-397, DOI: 10.1080/02684527.2012.668080

To link to this article: https://doi.org/10.1080/02684527.2012.668080

Published online: 29 May 2012.

Submit your article to this journal

Article views: 3192

View related articles

Citing articles: 2 View citing articles

The Federal Bureau of Investigation and Change: Addressing US Domestic

Counter-terrorism Intelligence

ADAM D.M. SVENDSEN*

ABSTRACT In this article, shortcomings with US domestic counter-terrorism intelligence and associated efforts since 2000 are analysed. Potential suggestions for the extended development of the Federal Bureau of Investigation (FBI) are then discussed. Some of these propositions touch on developments involving the domestic intelligence and security services of other countries, and explore their use concerning the future optimization of the FBI in the area of domestic counter-terrorism intelligence. Within the overall culture and operational approach of the FBI, today greater sustained emphasis still needs to be accorded to the ‘intelligence methodology’ of ‘wait and watch’. Simultaneously, the FBI needs to keep moving more from mainly a post facto emphasis to more of an a priori one in its investigations. Thereby, the FBI can continue to move towards improved delivery and better meet its role as a guarantor of US national security in a timely manner as the twenty-first century progresses.

We in the FBI have undergone unprecedented transformation in recent years, from developing the intelligence capabilities necessary to address emerging terrorist and criminal threats, to creating the administrative and technological structure necessary to meet our mission as a national security service.1

– R.S. Mueller, III, Director, FBI

Introduction

The early twenty-first century has inaugurated a period of much change for US domestic intelligence. This has particularly been the case for its traditional manager, the Federal Bureau of Investigation (FBI). The long-term drivers for these trends stem predominantly from attempting to cope with the detritus of unprecedented rapid globalization experienced during the post- Cold War era. This has included significantly elevated counter-crime

*Email: [email protected] 1‘Statement of R.S. Mueller, III, Director, FBI’, Oversight of the FBI, Hearing before the Committee on the Judiciary, United States Senate (25 March 2009) p.5

Intelligence and National Security Vol. 27, No. 3, 371–397, June 2012

ISSN 0268-4527 Print/ISSN 1743-9019 Online/12/030371-27 ª 2012 Taylor & Francis

http://dx.doi.org/10.1080/02684527.2012.668080

requirements.2 After the 9/11 attacks, expanded domestic and international counter-terrorism needs were also firmly asserted. A complex matrix of enhanced tasks has formed.

In this article, focus is concentrated on the post-9/11 FBI. Unsurprisingly, given the contemporary challenges confronted by the FBI, strategy and policy implications loom large. Equally, neither exempt from consideration are important tactical and operational concerns. Both structural and cultural factors likewise figure. All of these implications still need their timely engagement and addressing by the FBI and its partners beyond. This action is required in order to maintain an appropriate and proportional level of vigilance in the United States and abroad as the twenty-first century progresses. This consideration emerges prominently as, into 2010, the diverse terrorism threat the US confronts continues to evolve in several different challenging directions. Sustained close scrutiny and monitoring of all the dimensions involved is necessary.3

To keep both identifying, and – more crucially – learning, complex lessons, the considerations presented above make the subject of this article worthy of some further examination. This is especially as the FBI has to constantly maintain treading a fine ‘balancing act’ in its operations concerning many sensitive issues. Extending a continuously evolving approach to learning and adaptation is clearly essential.4 During the FBI’s process of change, increasingly creative and knowledgeable counter- terrorism practitioners need their enhanced fostering.

‘Reforming’ the FBI

Recent history has dealt some tough hands for the FBI. Over the last decade, analysts have tabled numerous suggestions for FBI reform. Frequently, they adopt a comparative approach. Attention is drawn to other instructive models for domestic intelligence and security sector reform in the United States that are available throughout the world. This extensive literature provides a valuable foundation upon which the connective and explorative propositions advanced in this article are built.5

2For a mid-1990s evaluation of ‘globalization’, M. Waters, Globalization (London: Routledge/Key Ideas series 1995). For the ‘dark side’ of globalization, S. Weber, Naazneen Barma, Matthew Kroenig and Ely Ratner, ‘How Globalization Went Bad’, Foreign Policy (January/February 2007); see also J.A. Scholte, ‘Globalization and (In)Security’ in Globalization: A Critical Introduction, 2nd ed. (London: Palgrave 2005) pp.279–315. 3See, for example, C. Dickey, ‘Inside the Zazi Takedown’, Newsweek, 26 September 2009; ‘Pakistan Confirms US Men Arrested’, BBC News Online, 10 December 2009; ‘Unconnected Dots, Yet Again, on a Terror Attempt’, The Washington Post, 28 December 2009; M. Mazzetti and S. Shane, ‘Evidence Mounts for Taliban Role in Car Bomb Plot’, The New York Times, 5 May 2010. 4See, for example, C. Johnson, ‘FBI Director Appoints Judge to Review lead up to Fort Hood’, The Washington Post, 8 December 2009; J. Markon, ‘FBI Walks Tightrope in Outreach to Muslims, Fighting Terrorism’, The Washington Post, 20 December 2009. 5See, for instance, the texts cited throughout this article.

372 Intelligence and National Security

Offering a ‘critical’ perspective, this article aims to provide a suitably detached reflective overview evaluation of the ongoing changes vis-à-vis the FBI. Aiming to communicate a range of operational-to-strategy/policy- orientated lessons, contemporary historical developments since 2000 are examined. Particular concentration is placed on the FBI’s counter-terrorism intelligence work in the early twenty-first century. Some suggestions are then offered for how changes might be shaped and extended over the next few years. These are provided to help ensure that the FBI adequately reflects an evolving ‘work-in-progress’ within the important realms of intelligence and counter-terrorism.

The FBI and Intelligence

Intelligence forms the main concern. As former CIA Inspector General (1990–98), Frederick P. Hitz, has argued: ‘It is not fair to say, as some of its critics do, that the bureau has no experience in this domestic intelligence responsibility’.6 Indeed, several longer-ranging histories of the FBI, and associated subject texts, provide valuable insights into the extent of that competency during earlier time periods.7 However, as a plethora of twenty- first-century events have shown and continue to demand, an enhanced intelligence methodology is still increasingly imperative for the FBI.8

Reflecting greater use of ‘wait and watch’ tactics, this last methodology requires effective implementation alongside the security methodology – characterized in turn as being more reflective of ‘see and strike’ actions. An extended ‘intelligence methodology’ is especially important vis-à-vis the issue of terrorism. This is while it is simultaneously useful against other contemporary pressing FBI concerns, such as organized and cyber crime.9

Forward movements can be summarized. Sustained attention towards effectively pursuing the route of enhanced intelligence is required by the FBI in its overall law enforcement approach as time progresses. A useful place to begin is by examining the context of recent US domestic counter-terrorism intelligence shortfalls. Especially shown is how, over the past decade, particularly emblematic examples have been tackled and where they need their further addressing.

6F.P. Hitz, Why Spy? Espionage in an Age of Uncertainty (New York: St. Martin’s Press 2008) p.193. 7See, for example, texts such as R. Jeffreys-Jones, The FBI: A History (London: Yale University Press 2007); see also A.D.M. Svendsen, Intelligence Cooperation and the War on Terror: Anglo-American Security Relations after 9/11 (London: Routledge/Studies in Intelligence Series 2010) pp.42, 47–8. 8See also J.N. Shapiro and R. Darken, ‘Homeland Security: A New Strategic Paradigm?’ in J. Baylis, J.J. Wirtz and C.S. Gray (eds.) Strategy in the Contemporary World, 3rd ed. (Oxford: Oxford University Press 2010) from p.288. 9See also R.S. Mueller, III, Director, Federal Bureau of Investigation, ‘Before the Senate Committee on the Judiciary’, FBI website, 20 January 2010.

Addressing US Domestic Counter-terrorism Intelligence 373

US Domestic Counter-terrorism Intelligence Shortcomings

In the wake of 9/11, the FBI was widely criticized regarding its competence. Domestic counter-terrorism intelligence emerged as the main focus of concern.10 Arguably, especially after the 1998 US embassy bombings in Africa, the FBI’s attention span concerning terrorism had been increasingly focused beyond the shores of the United States. The international terrorism threat dominated.11 Only very shortly before the 9/11 attacks was a more concerted domestic counter-terrorism focus and broader homeland security threat awareness beginning to develop.12 Ultimately, with hindsight, this was rather belated.

After 9/11, numerous reviews were conducted and a multitude of reforms to US domestic counter-terrorism intelligence were tabled. Many of the post- 9/11 reviews were vociferous in calling for the radical reform of the FBI. Notably, these demands emphasized improving information sharing. This was to be accomplished both internally within the FBI and externally on an interagency basis.13

Certainly, some of the shortcomings identified during the post-9/11 ‘season of inquiry’ have now been addressed.14 However, some limitations

10See also Jeffreys-Jones, ‘9/11 and the Quest for National Unity’, chapter 14 in his The FBI, pp.230–52. 11A. Khan, ‘Analysis: FBI Goes Global’, Jane’s Defence Weekly, 12 April 2000; see also ‘George Tenet’s al-Qaida Testimony – Part 1’, The Guardian, 18 October 2002; M. Smith, The Spying Game (London: Politico’s 2003) p.444. 12‘Defending the Homeland becomes a Priority for Bush’, Jane’s Terrorism & Security Monitor, 1 August 2001. 13Many sources can be cited here: ‘3.2. Adaptation – and nonadaptation – in the law enforcement community’ in the US National Commission on Terrorist Attacks Upon the United States of America, 9/11 Commission Report (22 July 2004), pp.73–80; M. German, ‘An FBI Insider’s Guide to the 9/11 Commission Report’, GlobalSecurity.org (2005); P. Shenon and E. Lichtblau, ‘F.B.I. is Assailed for its Handling of Terror Risks’, The New York Times, 14 April 2004; A. Cumming and T. Masse, ‘RL32336: FBI Intelligence Reform Since September 11, 2001: Issues and Options for Congress’, CRS Report for Congress, 6 April 2004; Office of the Inspector General, ‘A Review of the Federal Bureau of Investigation’s Counterterrorism Program: Threat Assessment, Strategic Planning, and Resource Manage- ment’, Report No. 02-38, September 2002; ‘Terrorist Attacks Prompt FBI Reform’, Jane’s Intelligence Review, 1 February 2002; A. Brownfeld, ‘US Intelligence Failures and the Moussaoui Case’, Jane’s Terrorism & Security Monitor, 17 June 2002; U.S. Department of Justice, Office of the Inspector General, A Review of the FBI’s Handling of Intelligence Information Related to the September 11 Attacks (November 2004/declassified June 2006); see also ‘Confronting the ‘‘Enemy Within’’: What Can the United States Learn About Counterterrorism and Intelligence from Other Democracies?’, RAND Research Brief, 2004; see also P. Chalk and W. Rosenau, Confronting the ‘Enemy Within’: Security Intelligence, the Police, and Counterterrorism in Four Democracies (Santa Monica, CA: RAND 2004). 14See, for example, ‘Sharing & Accessing of Information Beyond the FBI’ in ‘Responses of the Federal Bureau of Investigation Based Upon the May 2, 2006 Hearing Before the Senate Committee on the Judiciary Regarding FBI Oversight’, pp.117–18; see also R.S. Mueller, Director, Federal Bureau of Investigation, ‘From 9/11 to 7/7: Global Terrorism Today and the

374 Intelligence and National Security

remain. More than eight years after 9/11, domestic counter-terrorism efforts and intelligence gathering generally within the United States still have ample scope for being further optimized.15 Both qualitative and quanti- tative problems have been confronted. While challenging to disaggregate because of their close overlap, some of these pressing problems are now evaluated in turn.

Confronting Qualitative Problems

In May 2006, Chairman of the Judiciary Committee, US Senator Pat Leahy, highlighted some of the major obstacles that confronted the FBI. He asserted that: ‘The FBI simply cannot continue to foster a culture that places a lower value on intelligence functions than investigative efforts.’16 During early 2008, in his testimony to a congressional subcommittee, FBI Agent Bassem Youssef went further. He observed critically that: ‘The FBI counter-terrorism division is ill-equipped to handle the terrorist threat we are facing’.17 Furthermore, he asserted that ‘counter-terrorism agents and managers at FBI headquarters often lack basic knowledge about Middle Eastern culture, language and terrorists’ ideology’. Allegedly, high-level counter-terrorism inexperience figured strongly, ‘compounding matters’.18 More widely, these problems are often intimately connected with prominent questions regarding ‘proportionality’ during the conduct of operations. They also extend to include pressing civil liberties and domestic, constitutional and civil rights considerations.19

Challenges of Tomorrow’, Chatham House Transcript, 7 April 2008; see also, for example, ‘Interview: Art Cummings’, PBS Frontline, 5 June 2006; see also D. Priest, ‘FBI Pushes to Expand Domain into CIA’s Intelligence Gathering: Common Ground Not Yet Reached on Agency Roles in U.S.’, The Washington Post, 6 February 2005; see also R.A. Best Jr., ‘Sharing Law Enforcement and Intelligence Information: The Congressional Role’, CRS Report for Congress, 13 February 2007; ‘TSC Recognized for Information Sharing Initiatives’, FBI Press Release, 6 March 2009; see also ‘Intelligence at Home . . . and Abroad?’ heading in ‘The Agenda Ahead’, chapter 5 in G.F. Treverton, Intelligence for an Age of Terror (Cambridge: Cambridge University Press 2009) pp.120–33. 15See also S. Shane, ‘Lapses Allowed Suspect to Board Plane’, The New York Times, 5 May 2010. 16‘Statement by Sen. Patrick Leahy, Ranking Member, Committee on the Judiciary Hearing on FBI Oversight’, Office of Senator Leahy, 2 May 2006; see also R.A. Posner, Uncertain Shield: The U.S. Intelligence System in the Throes of Reform (Lanham, MD: Rowman & Littlefield Publishers, Inc. 2006); for a review of Posner’s book, see S. Moskowitz, ‘Intelligence in Recent Public Literature: Uncertain Shield: The U.S. Intelligence System in the Throes of Reform. . .’, CIA Studies in Intelligence 50/3 (2006); see also R.A. Posner, ‘Conclusion’ in his Remaking Domestic Intelligence (Washington, DC: Hoover Institution Press, 2005) pp.81–2. 17Quoted in R.B. Schmitt, ‘Agent Says the FBI is Not Prepared’, Los Angeles Times, 22 May 2008. 18Ibid. 19D. Cole and J.X. Dempsey, Terrorism and the Constitution, 3rd ed. (New York: The New Press 2006).

Addressing US Domestic Counter-terrorism Intelligence 375

A persistent but frequently overlooked problem for the FBI is balancing multiple roles. Most immediately after the multitude of post-9/11 reforms around 2002 and closely following several high-profile spy cases, other security anxieties re-emerged, such as regarding counter-espionage.20 Fears were evident that too many resources, including staff, were being redeployed to combat solely the issue of terrorism. Others expressed concerns that organized crime investigations were simultaneously atrophying. Although, according to some – such as David Major, a former senior FBI Counter- intelligence agent – these fears could soon be somewhat placated by 2002–3.21

Yet, divided attention remains problematic. Focusing on three highly demanding roles, that all compete for the same ultimately finite resources, means that several complications are encountered.22 Continuing into 2009– 10, the diverse competing calls on the FBI’s intelligence capabilities and capacity necessitates ever-greater resourcefulness in making allocations.23

Here, an enhanced ‘intelligence methodology’ can again assist. For example, this is in the form of introducing some more reflective planning.

These have not been the only prevailing concerns. During the FBI’s attempts to modernize, as well as to reform after 9/11, not all of its initiatives have gone to plan. The FBI has encountered a plethora of major and costly information computing technology (ICT) project problems. Worse, simultaneously some of these projects have failed to deliver or produce as quickly as required.24 In part, these struggles appropriately reflect the FBI’s attempts to strive to meet what criminologist James Sheptycki has observed as an overall trend towards a ‘rise to prominence of intelligence-led policing (ILP), which is the technological effort to manage

20G. Corera, ‘US Reforms Overlook Threat from Foreign Intelligence’, Jane’s Intelligence Review, 1 June 2003. 21See, for instance, where he is quoted in ibid.; for a later US espionage case, ‘US Scientist Charged with Spying’, BBC, 19 October 2009; D.Q. Wilber, ‘Md. Scientist Tried to Spy, Indictment Says’, The Washington Post, 23 October 2009. 22See also ‘The FBI and Foreign Intelligence Penetration’, Jane’s Intelligence Digest, 30 January 2009. 23B. Krebs, ‘Organized Crime Behind a Majority of Data Breaches’, The Washington Post, 15 April 2009; see also B. Krebs, ‘Security Fix: Is Cyber Crime Really the FBI’s No. 3 Priority?’, The Washington Post Blog, 24 September 2007; see also R.S. Mueller, III, Director FBI, ‘Before the Senate Committee on Homeland Security and Governmental Affairs’, FBI website, 30 September 2009; R.S. Mueller, III, Director FBI, ‘Statement Before the Senate Judiciary Committee’, FBI website, 16 September 2009; P. Slevin, ‘Rampage Kills 12, Wounds 31’, The Washington Post, 6 November 2009; G. Jaffe, A. Gerhart and W. Booth, ‘Officials Cast Wide Net in Search for Answers’, The Washington Post, 8 November 2009; E. Nakashima and J. Pomfret, ‘China Proves to be an Aggressive Foe in Cyberspace’, The Washington Post, 11 November 2009; M. Glod, ‘Former FBI Employee Sentenced for Leaking Classified Papers’, The Washington Post, 25 May 2010; A. Entous, ‘Obama Starts Deploying Interrogation Teams’, Reuters, 19 May 2010. 24E. Lichtblau, ‘F.B.I. Faces New Setback in Computer Overhaul’, The New York Times, 18 March 2010.

376 Intelligence and National Security

information about threats and risks in order to strategically manage the policing mission’.25

Significant well-documented obstacles have beset the FBI on this front.26

In August 2006, reports bemoaned that, ‘five years after the Sept. 11, 2001, terrorist attacks and more than $600 million later, agents still rely largely on the paper reports and file cabinets used since federal agents began chasing gangsters in the 1920s’. This lack of technological interconnectivity was a considerable shortcoming. Not least, this paucity was occurring as the FBI tried to operate in a domain where making ‘connections’ during the course of increasingly wide-ranging investigations is crucial. This is particularly when operations are trying to be undertaken during an era of exponential globalization. Amid the fallout from these stymying ICT project failures, officials commented that in terms of technology the FBI is trapped in the 1980s, ‘if not earlier’.27 Senator Leahy lamented: ‘We might be in the 22nd century before we get the 21st-century technology’.28 FBI intelligence activities confronted being technologically stunted.

A third area of difficulty has been evident. This has been seen most clearly regarding FBI internal handling processes and procedures. Pointing to a suggested lack of micro-domain change at the daily work level, post-9/11 FBI agent training has frequently been criticized. This has particularly been in relation to the more specific domain of counter-terrorism skills.29 Business was impacted negatively. Poor handling, such as of records and so-called ‘National Security Letters’ (NSLs)30 during the course of investigations, has experienced considerable criticism. In 2007, the flaws were exposed most starkly in an official report during a review of FBI data collection.31

However, what was possibly more damning for the FBI were its subsequent

25J. Sheptycki, ‘Transnational Policing’, The Canadian Review of Policing Research, 1 (2005); see also T. Connors, ‘Putting the ‘‘L’’ into Intelligence-Led Policing: How Police Leaders Can Leverage Intelligence Capability’, International Journal of Intelligence and CounterIntelligence 22/2 (2009) pp.237–45. 26D. Eggen and G. Witte, ‘The FBI’s Upgrade That Wasn’t: $170 Million Bought an Unusable Computer System’, The Washington Post, 18 August 2006. 27Ibid. 28Quoted in ibid. 29See, for example, S. Horwitz, ‘Old-School Academy in Post-9/11 World: New Focus is on Terrorism, but Training is Struggling to Keep Up’, The Washington Post, 17 August 2006. 30NSLs are defined by the FBI as ‘a letter request for information from a third party that is issued by the FBI or by other government agencies with authority to conduct national security investigations’. 31Many sources can be cited here: R.J. Smith, ‘Report Details Missteps in Data Collection’, The Washington Post, 10 March 2007; see also D. Johnston and E. Lipton, ‘U.S. Report to Fault F.B.I. on Subpoenas’, The New York Times, 9 March 2007; J. Solomon and B. Gellman, ‘Frequent Errors in FBI’s Secret Records Requests: Audit Finds Possible Rule Violations’, The Washington Post, 9 March 2007; D. Stout, ‘F.B.I. Head Admits Mistakes in Use of Security Act’, The New York Times, 10 March 2007; D. Eggen and J. Solomon, ‘FBI Audit Prompts Calls for Reform: Some Lawmakers Suggest Limits on Patriot Act’, The Washington Post, 10 March 2007; R.J. Smith and J. Solomon, ‘Amid Concerns, FBI Lapses Went On: Records

Addressing US Domestic Counter-terrorism Intelligence 377

sluggish attempts to then deal with the issue once identified. This was while the scope of the errors, at least at first, was not fully appreciated.32 Worse, these problems were not isolated. Instead, they were more linked to issues of a muddled methodology riddled with faults.33 Already besieged exter- nally, intelligence work suffered further from facing these substantial internal challenges.

The faults could be exposed. According to Justice Department and FBI officials, FBI agents repeatedly provided inaccurate information to win secret court approval of surveillance warrants in terrorism and espionage cases. This prompted officials to tighten controls. Notably, this was on the way the FBI uses its powerful anti-terrorism tools, as sanctioned by legislation such as the post-9/11 Patriot Act of October 2001.34

The spectre of some further operational constraints being raised was soon forthcoming. This was through the stricter application of the law as a greater controlling mechanism on FBI intelligence activities. The chief judge of the Foreign Intelligence Surveillance Court, Colleen Kollar-Kotelly, ‘raised the possibility of requiring counterterrorism agents to swear in her courtroom that the information they were providing was accurate’. This was judged to be ‘a procedure that could have slowed such investigations drastically’.35 A sharp legal warning was issued to the FBI. These developments could impact strongly on its permissible intelligence activities and on the definition of their legitimate operational parameters. Many concerns for future intelligence activities and which ‘leads’ could be exploited were apparent.

Operational flaws were proving difficult to resolve. Although ‘risk thresholds’ had been lowered post-9/11, better balances with other pressing and frequently competing considerations were sought in the FBI’s opera- tions. This was especially so that the end goals of ‘public safety’ and ‘homeland security’ could be better met in a less compromising manner to widely held higher values. In his later testimony of March 2009, the Director of the FBI, Robert S. Mueller highlighted that: ‘We have strengthened our training at the FBI’s Quantico Training Academy for both agents and [intelligence] analysts’.36 The improvement of practices was to be the way forward.

Arguably, however, the operational problems confronted also reflected institutional overstretch. Intelligence efforts were similarly frustrated. This was

Collection Brought Internal Questions but Little Scrutiny’, The Washington Post, 18 March 2007. 32Ibid. 33See also C.E. Lindblom, ‘The Science of ‘‘Muddling Through’’‘, Public Administration Review 19 (Spring 1959) pp.79–88; C.E. Lindblom, ‘Still Muddling, Not Yet Through’, Public Administration Review 39 (1979) pp.517–26; J. Solomon and C. Johnson, ‘FBI Broke Law for Years in Phone Record Searches’, The Washington Post, 19 January 2010. 34See also P.A. Buxbaum, ‘Patriot Act Redux’, ISN Security Watch, 11 November 2009. 35J. Solomon, ‘FBI Provided Inaccurate Data for Surveillance Warrants’, The Washington Post, 27 March 2007. 36‘Statement of R.S. Mueller, III, Director, FBI’, p.7.

378 Intelligence and National Security

witnessed vividly in mid-2007, extending into 2009, with the concerns over the backlog exposed in the FBI’s immigration-checking responsibilities.37 Other intelligence and terrorism experts were not impressed. With an eye on FBI developments around 2006–7, Michael Scheuer, the former head of the Central Intelligence Agency (CIA)’s Bin Laden unit, claimed: ‘The FBI continues to be a broken, anachronistic organization’.38 The presence of more quantitative problems, concerning the high volume of work that had to be undertaken by the FBI, was also suggested. These problems are examined next.

Experiencing Quantitative Problems

During March 2009, Mueller effectively demonstrated to Congress the sheer multiplicity of tasks with which the contemporary FBI has to deal.39 This heavy workload has had ramifications of a quantitative nature on daily business activities, including the FBI’s intelligence activities. Indeed, some of these highly demanding quantitative factors continue to be experienced – especially as a plethora of high-profile US terrorism cases have unfolded during the latter half of 2009 and into mid-2010, including an attempted airline attack on Christmas Day 2009 and a car bomb attempt in Times Square, New York, during May 2010.40 These issues take time to be addressed, requiring the constant strict prioritization of tasks and the judicious allocation of resources, as well as their continuous monitoring. As difficult trade-offs attempt to be fashioned by the FBI (together at times in concert with other domestic and international agencies), inevitably not all activities have gone smoothly.41 These continue to have far-reaching implications for intelligence work in the FBI context and beyond.

Over time, the terrorist watchlist system in the United States has shown some noteworthy inconsistencies.42 According to a Department of Justice (DoJ) audit on the FBI released in March 2008:

We found that the FBI was not always providing updated nominations when new information became known about a nominated individual . . . We also found that the FBI was not always removing records from the watchlist when it was appropriate to do so . . . Moreover, FBI

37See, for example, S.S. Hsu and N.C. Aizenman, ‘FBI Name Check Cited in Naturalization Delays: Official Calls Backlog ‘‘Unacceptable’’’, The Washington Post, 17 June 2007; see also S. Fidler, ‘Fears Over Covert DNA Database’, The Financial Times, 17 November 2008; see also N.C. Aizenman, ‘U.S. Antiterrorism Laws Causing Immigration Delays for Refugees’, The Washington Post, 12 November 2009. 38Quoted in ‘INTERVIEW: With Michael Scheuer’, PBS Frontline, 30 January 2007. 39‘Statement of R.S. Mueller, III, Director, FBI’, p.5. 40See, for example, the several cases cited in the sources dated September–December 2009, provided throughout this article. 41See also C. Johnson and S.S. Hsu, ‘Possible Agency Missteps Debated’, The Washington Post, 11 November 2009; ‘In Plain Sight?’, The Washington Post, 12 November 2009. 42See also C.K. Ervin, ‘OP-ED Contributor: After Eight Years, Terrorists Still Fly’, The New York Times, 29 December 2009.

Addressing US Domestic Counter-terrorism Intelligence 379

headquarters officials reported that watchlist nomination submissions from field offices were often incomplete or contained inaccuracies, which caused delays in the processing of nominations.43

With further implications for intelligence work and procedures, more worryingly these problems had reportedly been ongoing ‘for nearly three years despite steps taken to prevent errors’. Furthermore, an FBI spokesman responded that ‘gaps identified in the system should be fixed within six months’. Factors akin to bureaucratic inertia were proving hard to erode. In the audit’s entirety, the FBI was given ‘a mixed review’. More positively, the audit did conclude ‘that the FBI has proper training and other internal controls in place to help make sure names of suspected terrorists were accurately added to the list’.44

Distinct deficiencies, however, have continued to be evident. Subsequent adjustments, or indeed even their lack thereof, were the complicating factors. For instance, once ‘blacklisted’ it was considerably challenging to get a name cleared. With ramifications for refined intelligence filtering and targeting activities, a degree of chaos and inconsistency was reflected. This was as well as, more widely, the impact of multiple overlapping agencies focused on the domestic counter-terrorism intelligence task continuing to be vividly apparent.45

The higher coordination of domestic intelligence tasks still appeared to be more lacking. Or, it was more haphazard in its nature. This was at least con- cerning the management of some of these more specific issue areas, including counter-terrorism work.46 Moreover, extending into 2010, the challenge of a high volume of names needing to be processed speedily in a timely manner continued to be confronted in the FBI context. Tough issue management ‘trade- offs’ similarly continued to be navigated. Disappointingly, some persistent and familiar difficulties appeared to be encountered on occasion.47

Arguably, the FBI’s overburdened condition is one of the main impediments to internal reform and renewal.48 As a ripple knock-on effect, intelligence efforts are similarly constrained. This factor was apparent as

43Quoted in L.J. Jordan, ‘Audit: FBI Watchlist Data Error-Riddled’, The Huffington Post, 17 March 2008. 44Ibid. 45See also B. Debusmann, ‘The Trouble with US Terrorist Watchlists’, Reuters, 8 May 2010; Timothy J. Healy, Director, Terrorist Screening Center, Federal Bureau of Investigation, ‘Statement Before the House Judiciary Committee’, FBI website, 24 March 2010. 46E. Nakashima, ‘FBI’s Lapses on Terrorist Watch List put Nation at Risk, Report Warns’, The Washington Post, 7 May 2009; see also, for later concerns, ‘US Vows to Pursue Plane Plotters’, BBC News Online, 28 December 2009. 47W. Pincus, ‘1,600 are Suggested Daily for FBI’s List’, The Washington Post, 1 November 2009; see also K. DeYoung and M. Leahy, ‘Uninvestigated Terrorism Warning about Detroit Suspect called Not Unusual’, The Washington Post, 28 December 2009. 48See also E. Lichtblau, D. Johnston and R. Nixon, ‘F.B.I. Struggles to Handle Wave of Financial Fraud Cases’, The New York Times, 19 October 2008; J. Carmella, ‘FBI Director says Financial Fraud Cases are Limiting Ability to Fight Other Crime’, Jurist, 25 March 2009;

380 Intelligence and National Security

recently as late 2008, as the FBI kept demanding new tools. Reportedly, these were needed to better aid it ‘to assess national security and foreign intelligence threats’.49 According to an authoritative article in The Washington Post:

The overhaul [‘to FBI ground rules’, proposed by the US Department of Justice during September 2008, would be] the most substantial revision to FBI operating instructions in years, also [they] would ease some reporting requirements between agents, their supervisors and federal prosecutors in what authorities call a critical effort to improve information gathering and detect terrorist threats.50

More of an ‘intelligence methodology’ appeared to be trying to get greater expression. This elevated status for intelligence was trying to be fashioned amid the overall persisting mix of methodologies used contemporaneously by the FBI.51 Indeed, in his response to some recent public criticism of the FBI’s performance in the intelligence area, John Miller, assistant director of the FBI, argued:

the FBI’s Strategic Execution Team has employed best practices from the private and public sectors to identify what was working well in our intelligence efforts and how we could strengthen those efforts. We have standardized the intelligence work roles and processes across all field offices. We have added several weeks of updated hands-on training for field-office personnel, developed new policies and handbooks for field intelligence, and tasked the field offices to use these tools in new assessments of the potential threats in their areas.

Providing further insights into the FBI’s internal processes, he continued:

see also ‘FBI to Play Larger Role in US Counter-terror Ops: Report’, AFP Newswire, 28 May 2009. 49L. Margasak, ‘FBI Wants New Tools in Terrorism Assessments’, Associated Press – Newswire, 13 September 2008; S. Gorman and E. Perez, ‘FBI Wrestling with Remake as Intelligence Agency: Critics say Bureau Needs Culture Shift; Director to Testify’, The Wall Street Journal, 16 September 2008. 50C. Johnson, ‘Rule Changes Would Give FBI Agents Extensive New Powers’, The Washington Post, 12 September 2008; see also ‘Joint Statement of Attorney General Michael B. Mukasey and FBI Director Robert S. Mueller on the Issuance of the Attorney General Guidelines for Domestic FBI Operations’, MarketWatch, 3 October 2008. 51See also under sub-heading ‘Intelligence’ in Robert S. Mueller, III, Director Federal Bureau of Investigation, ‘Statement Before the House Judiciary Committee’, FBI Press Release, 16–17 September 2008; Valerie Caproni, General Counsel, FBI, and Elisebeth Collins Cook, Assistant Attorney General, Office of Legal Policy, DOJ, ‘Statement Before the Senate Select Committee on Intelligence’, FBI Press Release, 23 September 2008; ‘Fact Sheet: Justice Department Counter-Terrorism Efforts Since 9/11’, FBI Press Release, 11 September 2008.

Addressing US Domestic Counter-terrorism Intelligence 381

To improve the number and quality of our human sources, we created special squads in every field office that will focus entirely on developing human sources and intelligence collection. In addition, we launched an effort to recruit, train and enhance the roles of intelligence analysts. All of this progress in the field is vetted personally by Director Robert Mueller on a regular basis over a classified video link. These sessions reinforce the need for leadership in the field and accountability.52

Clearly much introspection regarding the intelligence dimension was underway within the FBI. Also, according to the FBI, positively some of the computer ‘problems’ they had experienced earlier were now resolved by September 2008.53 Providing updates, the recurring theme of ‘improvements in FBI technology’ similarly figured in Mueller’s later testimony to Congress during both March and May 2009. As he remarked, this development ‘will allow us to communicate and share information with our law enforcement and intelligence partners’.54

More intelligence-led policing activities would now be better furnished technologically. However, how these most recent changes actually work in practice over the long term – for instance, regularly at the daily operational level and in qualitative terms – are yet to be seen more fully and clearly.55 The new ‘guidelines’ have already been criticized as ‘expansive, not delimiting’ from a civil liberties perspective.56 These concerns highlight others that exist, extending beyond merely those regarding the FBI.57

Many fixes in several different areas of activity were clearly required. Those most relevant to the FBI will be considered next. Capturing core concerns, as UK scholars Jon Moran and Mark Phythian note, those who follow counter-terror and policing policy in the United States should now be

52J. Miller, Assistant Director, FBI, ‘The FBI is on Track with Its Intelligence Mission’, FBI Press Release, 29 September 2008, written in response to Gorman and Perez, ‘FBI Wrestling with Remake as Intelligence Agency’; see also ‘FBI Transformation’ in Robert S. Mueller, III, Director, FBI, ‘Statement Before the Senate Judiciary Committee’, FBI Press Release, 25 March 2009. 53J. Stein, ‘FBI Touts New Online Intelligence Systems’, SpyTalk – CQ Politics Blog, 24 September 2008. 54‘Statement of R.S. Mueller, III, Director, FBI’, pp.7–8; see also R.S. Mueller, III, Director FBI, ‘Statement Before the House Judiciary Committee’, FBI website, 20 May 2009. 55See also C. Johnson, ‘FBI Threat Tracking Improves, Report Says: System, However, Still Needs Work’, The Washington Post, 8 November 2008; Lichtblau, ‘F.B.I. Faces New Setback in Computer Overhaul’. 56A. D’Amato, ‘The FBI’s New Guidelines’, Jurist Forum, 7 October 2008; C. Johnson, ‘Guidelines Expand FBI’s Surveillance Powers’, The Washington Post, 4 October 2008; see also C. Savage, ‘Loosening of F.B.I. Rules Stirs Privacy Concerns’, The New York Times, 29 October 2009. For FBI guidelines, see ‘Essential Documents: FBI Domestic Investigations and Operations Guide, December 2008’, US Council on Foreign Relations website (2009). 57See also C. Johnson, ‘Director of FBI Urges Renewal of Patriot Act: Portions of Law to Expire This Year’, The Washington Post, 26 March 2009; D. Kravets, ‘Lawmakers Cave to FBI in Patriot Act Debate’, Wired.com Blog, 1 October 2009.

382 Intelligence and National Security

‘familiar with the controversial relationship between intelligence investiga- tion and criminal investigation with regard to the activities of the FBI’.58

Indeed, arguably the role of intelligence is central to all of those investigative efforts in the overall law enforcement approach espoused by the FBI. This is rather than intelligence being merely juxtaposed. Some further changes were needed in order to realize a better balance. This was as well as to adequately maintain that optimum balance into the future.

Changing US Domestic Counter-terrorism Intelligence

How can the FBI more effectively confront what FBI scholar Rhodri Jeffreys- Jones has appropriately termed ‘the post-9/11 challenge’?59 The suggestions tabled below encompass both structural and cultural approaches. In their close overlap, they intend to address the overstretched and overburdened condition of the FBI in the early twenty-first century. This occurs as the FBI tries to fulfil the twin roles of being both a domestic intelligence and a security/law enforcement agency. Simultaneously, this is as the FBI tries to operate both domestically and abroad – emphasizing the wider US counter-terrorism ‘Fortress America’ approach. Frequently, this FBI work is conducted alongside the CIA, with the deployment of the FBI’s forward-posted legal attachés (‘legats’).60

The pressures of globalization have multiplied further the demands that all these tasks have made on the FBI. The developments associated with globalization have also required the FBI to further join up overseas with other domestic intelligence and security agencies in foreign countries, such as the British Security Service (MI5).61 Substantially increased foreign liaison

58J. Moran and M. Phythian, ‘Introduction: In the Shadow of 9/11’, Crime, Law & Social Change 44/4–5 (2005), p.330. 59R. Jeffreys-Jones, ‘The Historiography of the FBI’ in L.K. Johnson (ed.) Handbook of Intelligence Studies (London: Routledge 2007) p.47; see also ‘ The FBI’s New Approach’ in R. Kessler, ‘A Journalist’s View: The New Spies’, SAIS Review XXVIII/1 (2008) pp.149–51; see also ‘A Call for an American MI5’ in ibid., pp.153–5. 60For background insights into FBI foreign liaison activities, ‘The Legat Program and Interpol’ in A.G. Theoharis, ‘FBI Oversight and Liaison Relationships’, chapter 4 in A.G. Theoharis, T.G. Poveda, S. Rosenfeld and R.G. Powers (eds.) The FBI: A Comprehensive Reference Guide (Phoenix, AZ: The Oryx Press 1999) p.165; see also ‘Legal Attachés (Legats)’ in the chapter titled ‘Organization and Day-to-Day Activities’ in ibid., pp.218–19; see also ‘Federal Bureau of Investigation Legal Attaché Program’ (March 2004), 5http:// www.usdoj.gov/oig/reports/FBI/a0418/index.htm4 (accessed 19 January 2006); see also FBI, Budget Document (2008), pp.6-123–6-131 – where references are made to: ‘Expansion of CT Presence Overseas’, ‘Legal Attaché Expansion’ and (on the domestic intelligence front) ‘Fusion Centers’, 5http://www.fas.org/irp/agency/doj/fbi/2009just.pdf4 (accessed 11 March 2008); J.S. Landay, ‘FBI Questions American Held Without Charges in Gulf State’, McClatchy Newspapers, 17 November 2008. 61A. Svendsen, ‘The Globalization of Intelligence since 9/11: Frameworks and Operational Parameters’, Cambridge Review of International Affairs 21/1 (2008) pp.129–44; A.D.M. Svendsen, ‘The Globalization of Intelligence since 9/11: The Optimization of Intelligence Liaison Arrangements’, International Journal of Intelligence and CounterIntelligence 21/4

Addressing US Domestic Counter-terrorism Intelligence 383

between these agencies is now a huge and complex additional task. This work requires ever-greater expeditious management. Even the New York Police Department (NYPD) enjoys numerous foreign liaison officers stationed abroad. They are similarly tasked with primarily addressing terrorism through extended intelligence activities.62

1. Structural Changes and Increasing the ‘Intelligence Methodology’

Several valuable ‘structural change’ suggestions can be tabled. Firstly, into the future, the FBI will undoubtedly continue to benefit by placing more emphasis on (i) the development, and then (ii) the sustaining, of a comprehensive and sophisticated intelligence methodology in its overall approach to domestic counter-terrorism. More importance can be devoted to the ‘wait and watch’ and longer-term surveillance tactics in its investigations. For instance, this can be best articulated in terms of increased staff and other resource allocations being devoted to those ends.

Undertaking greater contextualization efforts similarly offer tangible benefits when applied. More closely tied to prevailing details and specifics acquired through improved intelligence collection activities, these move- ments allow for the establishment of some more robust ‘connection’ possibilities during investigations.63 Through implementing some structural changes, an enhanced contribution can be made towards better fostering a changed culture of intelligence. This is particularly towards one that ceases to prioritize merely ‘see and strike’ police-style and security dominated investigations. Offering the potential for greater clarity to be brought into answers arising from overall intelligence analysis (‘what is it?’) and assessment (‘what does it mean?’) activities, by adopting this approach, further-reaching improvements have increased possibilities to be realized. Simultaneously, both the qualitative and quantitative problems experienced by the FBI are more effectively addressed. In short, engaging in greater intelligence efforts can offer much to practitioners.

Evidently movement in this direction has already begun. For instance, the FBI has created the Directorate of Intelligence within the National Security Branch, and it has ‘established Field Intelligence Groups in all 56 field offi- ces’. This is as well as having ‘established Intelligence sections in each

(2008) pp.661–78; P. Finn, ‘U.S. Citizen Sues over Treatment in ‘‘Rendition’’’, The Washington Post, 11 November 2009; J. Markon and S. Hussain, ‘N.Va. Men Allegedly Tried to Join Jihadists’, The Washington Post, 11 December 2009. 62Many sources can be cited: E. Kaplan, ‘Hometown Security’, Council on Foreign Relations, 2 January 2007; E. Kaplan, ‘Backgrounder: New York Spurs Counterterrorism Efforts’, Council on Foreign Relations, 28 December 2006; B. Hope, ‘Police Counterterror Official Touts Importance of Local Role’, The New York Sun, 18 August 2006; B. Nussbaum, ‘Protecting Global Cities: New York, London and the Internationalization of Municipal Policing for Counter Terrorism’, Global Crime 8/3 (2007) pp.213–32; see also J. Dwyer, ‘City Police Spied Broadly Before G.O.P. Convention’, The New York Times, 25 March 2007; ‘Christopher Dickey: Intelligence The NYPD Way’, NPR, 15 February 2009. 63Svendsen, Intelligence Cooperation and the War on Terror, p.233.

384 Intelligence and National Security

operational division at FBIHQ’.64 However, despite these positive develop- ments, many critics have suggested that this is more of a peripheral enhancement. It is claimed little is done to change activities at the centre. Indeed, the ‘centre of gravity’ around which the FBI – as an organization – and its investigations pivot, continues to be subject to close scrutiny.65

Questions have also been asked about the effectiveness of coordination, especially in relation to intelligence. The FBI tradition of local investigation by scattered field offices across the United States persists, including its extension across the globe, with several FBI ‘legat’ offices abroad. Further ameliorative adjustments can be suggested through some greater centraliza- tion. However, these centralization movements must be carefully undertaken hand-in-glove with the local developments. Here, the technological impro- vements, together with their further advancement, can come in most usefully. Positively, these technological improvements can be seen to be underway by 2009–10, as cited above by both Mueller and Miller. This approach must include ensuring that there is the effective recognition of and capitalization on contemporary ‘glocalization’66 trends. Namely, this is tackling areas where ‘local’ extending through to ‘global’ factors fuse. Simultaneously, ‘human factors’ should not be neglected during the strong emphasis on what technology can deliver.67 Implemented in balance with each other, both human and technology factors must be carefully addressed by the FBI.

Moreover, developments must not be undertaken too much in isolation. This includes avoiding an overly individualistic emphasis and over-reliance on certain key members of staff or particular managers. This is a trait that impacts negatively on future business continuity. Leadership is undoubt- edly important, as Miller has already highlighted, but it must not be implemented alone. This is without adequate support from, or the leadership failing to be taken up by, other members of staff within and throughout the entire organization. Otherwise, sustaining stronger intelli- gence initiatives and prolonging their underpinning rationale and momentum is not fostered.

Together with occurring at a quicker rate, arguably cultural change within the FBI must reach further down. This is into the micro levels of operation and activity, witnessed at the daily work level. Enhanced and collective training programmes, such as those referred to above by Mueller, are a commendable way forward. However, these, too, always have ample scope to be extended. This is accomplished through their further optimization, in several different directions, as time progresses. Equally, they require their continuous evolution through being constantly kept up-to-date. Moreover,

64‘Intelligence’, FBI fact sheet. 65See, for instance, the testimony of FBI Agent Bassem Youssef in 2008, cited above. 66A. Mooney and B. Evans (eds.), Globalization: The Key Concepts (London: Routledge/Key Guides 2007) pp.117–8. 67See also the comments of John Miller, FBI assistant director, cited above.

Addressing US Domestic Counter-terrorism Intelligence 385

pro-active intelligence gathering must be kept well reflected in the FBI’s operational culture. These movements are particularly essential vis-à-vis individual FBI agents as they daily go about their work. Regularization is key, addressing more haphazard, ad hoc tendencies.

Observations can be extended further. As ‘Americans spying on Americans’ is such a strong anathema, a separate European-style domestic security service would sit very uncomfortably with the American political constituency.68 However, worthy of pursuit is some greater separation of (i) the intelligence (‘wait and watch’) and (ii) the security (‘see and strike’) functions and methodologies – or, at least, aspects of them. Although more intelligence input is required in overarching strategic and policy terms organizationally by the FBI, adopting more of this ‘firewall’ approach elsewhere would help the FBI towards better resolving the tensions encountered between these two methodologies. This is particularly at the ‘lower’ and more ‘micro’ tactical and operational levels, especially within the investigations domain of the FBI’s activities. Notably, this is accomplished through some enhanced reconciling disaggregation of these differing areas – or, at least, their increased harmonization. This includes that process occurring embedded within the pursuit of the FBI’s overall law enforcement approach. Several complexities must be better resolved through at least a degree of further methodological refinement.

Some further explanation is helpful. During the above process, an improved way forward is offered. Instead of competing and clashing (in a versus mode), the different methodologies are turned into more comple- mentary force multipliers (in a vis-à-vis mode). Greater synergy between the two is also generated, offering some ‘added value’ to investigations. As again referred to above by Mueller, having both ‘analysts’ and ‘agents’ respectively adopting those roles and specializing more in those methodologies does offer a viable pragmatic and practical way forward. However, the importance of the intelligence dimension in the training of FBI ‘agents’, while it might be configured differently, must not be weaker than that provided to ‘analysts’. Intelligence constructs must be maintained and communicated across the whole organization. All of the FBI’s employees need enhanced intelligence awareness being consistently encouraged. This is best accomplished through their greater education in those terms.

Some qualifications apply to the above discussion. The tensions observed between the intelligence and security methodologies in the overall approach towards domestic counter-terrorism in the FBI context will never be completely resolved. As frequently seen played out in institutional form, tensions always remain. Some contradictions also always remain inherent. These can be witnessed in the so-called ‘turf battles’ between dedicated intelligence and security/law enforcement agencies, notably, in the United

68M.M. Lowenthal, Intelligence: From Secrets to Policy, 3rd ed. (Washington, DC: CQ Press 2006) p.1; see also J. Risen and E. Lichtblau, ‘Early Test for Obama on Domestic Spying Views’, The New York Times, 18 November 2008.

386 Intelligence and National Security

States, the CIA and FBI, and when they are operating abroad.69 These tensions include concerning at what point in time are ‘purer’ intelligence operations stopped and is ‘security’ applied? They include clustering around when the law should be enforced, typically achieved through the interdicting of suspects.

A way forward can be readily suggested. While still allowing the FBI to build and contribute towards legal cases, other security and stronger law enforcement characteristics instead should be effectively toned down. For instance, this is through those attributes being devolved more to the local police authorities. This would involve removing the need for FBI agents to possess the powers of arrest and removing their requirement to be (overly) absorbed in actually physically implementing the law – i.e. needing to undertake the ‘striking’ actions characterized above. This proposed re- fashioning can be envisaged as being conducted along similar lines to how MI5 and the UK police interact in concert during their joint counter- terrorism investigations.70 As William Rosenau of RAND argued during 2006: ‘‘‘The British trump us in their use of police in counterterrorism,’’ while in the U.S., police are viewed largely as first-responders . . . The police are integrated into the intelligence community in Britain in ways they aren’t in the U.S., except perhaps in New York, L.A., and Chicago’.71

More recently, some commendable changes are afoot. Through the further building up of their capacity and capabilities, local police authorities can effectively take on greater security and law enforcement task burden sharing with the FBI. This includes the police undertaking more of the local physical and mechanical activities, such as actually carrying out raids and arresting the targets. These movements also include the police doing more of the in- the-field ‘legwork’ and ‘operation space’ (stakeout) preparation, as well as dealing with the local community. Such a division of tasks is intended so that FBI agents, in their ‘grander’ role as protectors of national security, do not have to expend their time and effort on instead undertaking those lower and micro level modes of tasks. Not least this is helpful as those tasks are already

69For CIA and FBI tensions, Priest, ‘FBI Pushes to Expand Domain into CIA’s Intelligence Gathering’; see also R. Suskind, The One Percent Doctrine: Deep Inside America’s Pursuit of its Enemies Since 9/11 (London: Simon & Schuster 2006) pp.92–4; ‘US Intelligence Wars’, Jane’s Intelligence Digest, 4 November 2005; J. Warrick and W. Pincus, ‘CIA Finds Holes in Pre-9/11 Work’, The Washington Post, 22 August 2007; D. Linzer, ‘In New York, a Turf War in the Battle Against Terrorism’, The Washington Post, 22 March 2008; D. Johnston and W.K. Rashbaum, ‘New York Police Fight with U.S. on Surveillance’, The New York Times, 20 November 2008; C. Johnson and S.S. Hsu, ‘Justice Dept., NYPD Tussle Over FISA Warrants’, The Washington Post, 20 November 2008. 70See also K. Weston, ‘The Changing Nature of Counter-Terrorism Policing, RUSI Monitor 8/1 (2009) pp.19–20. 71E. Stables, ‘Alleged Plot in U.K. Highlights Improved Intelligence-Sharing with U.S.’, Congressional Quarterly – CQ.com, 10 August 2006; see also Michael Downing, LAPD Deputy Commissioner for Counterterrorism, ‘Counterterrorism and Crime Fighting in Los Angeles’, The Washington Institute for Near East Policy, 22 October 2009.

Addressing US Domestic Counter-terrorism Intelligence 387

equally familiar to those operating in the general crime-fighting world.72

Effective lines of communication and flows of information between the different levels and entities need to be strenuously managed, however, allowing for best intelligence fusion possibilities. Also a degree of the observable ‘nationalization of intelligence’ process is reflected.

Regarding the tackling of organized crime overseas, in 2009 the UK Serious Organised Crime Agency (SOCA) has been going down a similar road. Significantly, so-called ‘vetted units’ consisting of approved local law enforcement personnel have been fostered in strategically important countries across the globe.73 Adopting and extending these sorts of approaches, both domestically (nationally) in the United States and out in operational contexts abroad (on international, even globalized, bases), would then allow ample room for the FBI to better: (i) address its overburdened status; (ii) concentrate more on its investigations at a higher and macro level of investigative and operational activity; as well as (iii) focus on the enhancement of the intelligence methodology as more of an integral and increased part of those investigations. Strategic impact would likewise be better realized.

The extended use of various configurations of intelligence ‘fusion centers’ (and related concepts) similarly must be better encouraged.74 Tactically through to strategically, the value of adopting this approach has already been effectively demonstrated. For instance, this was seen during 2008–9 with the FBI’s development of the El Paso Intelligence Center.75 Greater room for manoeuvre to develop these highly supportive intelligence dimensions further into the future would also be permitted in a suitably opportunistic manner.

However, acute vigilance must be maintained. Movements in this direction must not be applied in a mutually exclusive and all-encompassing blanket manner. As David Thacher has cautioned, the devolving of only some security and law enforcement responsibilities from the macro and higher-sited FBI to more micro and lower-situated local police forces must be undertaken carefully.76 This is to ensure that already present higher-level ‘qualities’ are not lost or diminished during any change-processes. This includes regarding more specialist counter-terrorism expertise – e.g.

72See also J. Weaver, ‘Sept. 11 Attacks Helped Forge Bond between FBI and Local Police’, Miami Herald, 11 September 2009; S. Saulny, ‘Prayers and Criticism in Wake of Detroit Imam’s Killing by F.B.I.’, The New York Times, 31 October 2009. 73Based on information from a non-attributable source. For more on SOCA, see Svendsen, Intelligence Cooperation and the War on Terror, pp.20–1. 74‘Transformation through Integration and Innovation’, US Office of the Director of National Intelligence (ODNI), The National Intelligence Strategy of the United States of America, October 2005; J. Rollins, ‘Fusion Centers: Issues and Options for Congress’, Congressional Research Service Report for Congress, 18 January 2008; ‘Fusion Centers: Unifying Intelligence to Protect Americans’, FBI Press Release, 12 March 2009. 75‘Statement of R.S. Mueller, III, Director, FBI’, p.29. 76D. Thacher, ‘The Local Role in Homeland Security’, Law & Society Review 39/3 (2005) p.637; see also S. Pickering, D. Wright-Neville, J. McCulloch and P. Lentini, Counter- Terrorism Policing (New York: Springer 2007) p.106.

388 Intelligence and National Security

concerning chemical, biological, nuclear and explosive (CBRNE) compo- nents and forensic skills. The change-processes should not be too sweeping. Important ‘top-down’ (central/national), and equally ‘bottom-up’ (periph- eral/local), filtering and informing investigation information and skill-set flows do not want to become detrimentally impeded as a byproduct or side- effect. Equally, the valuable qualities do not want to become jettisoned. Careful balances must be fashioned and then constantly maintained in future activities.

Of course, clearly no single approach is entirely perfect. The intelligence methodology itself is also not without flaws. Developments occurring in real- time can be missed. ‘Time lags’ belonging to processes can have an impact, such as during the translation and interpretation of the information gathered. Naturally, it is also impossible for investigators to always be everywhere at once. However, constant monitoring activities undertaken more system- atically, and in a more consolidated form, can help to minimize those risks. The cleavage has to be fashioned along lines that effectively navigate the difficulties highlighted by Sheptycki, where, on the one hand, ‘Governments at every level advocate putting more police on patrol but, at the same time, re- organise and centralise policing systems around the intelligence-led policing paradigm that puts more and more officers behind desks analysing criminal intelligence’.77 Adopting a plurality of approaches therefore emerges as the most effective route to pursue. The FBI can learn much.

Indeed, a proven method for enhanced directing is proposed. Increasingly adopting the ‘medical triage’ process appears to be a commendable prudent way forward in contemporary circumstances.78 This helps to better ascertain FBI prioritizations, together with better allocating its case burden-sharing and division of labour requirements with other collaborative partners – such as local law enforcement (police) agencies. The potential for introducing more reflective planning can be facilitated. In the 2008–9 global economic downturn, a successful implementation of this approach has already been witnessed amid the FBI and police based in New York City.79 This allows the FBI to remain sufficiently focused on the contemporaneous ‘big’ or ‘headline’ issues, without simultaneously becoming (too) overwhelmed by other seemingly more amorphous or ‘micro’ considerations. This is particularly relevant in light of the contested domestic terrorism ‘threat’ the United States has appeared to confront over time.80

77Sheptycki, ‘Transnational Policing’; see also J. Sheptycki, ‘Organizational Pathologies in Police Intelligence Systems’, European Journal of Criminology 1/3 (2004) pp.307–32. 78On ‘triage’ systems, see D. Alexander, Principles of Emergency Planning and Management (Harpenden: Terra 2002) pp.200–11. 79P. Hurtado, ‘FBI Uses Triage to Shift from Terror to Madoff, Subprime Probes’, Bloomberg, 22 December 2008. 80J. Mueller, ‘Is There Still a Terrorist Threat?’, Foreign Affairs (September/October 2006). However, see also A. Elliott, ‘A Call to Jihad, Answered in America’, The New York Times, 12 July 2009; for recent cases, see P. Bergen, ‘The Terrorists Among Us’, Foreign Policy, 19 November 2009; B. Ghosh, ‘Domestic-Terrorism Incidents Hit a Peak in 2009’, TIME, 23

Addressing US Domestic Counter-terrorism Intelligence 389

Furthermore, the ‘pure’ intelligence elements within the FBI must not become encumbered by more ‘pedestrian’ producing-for-court requirements. Sensibly, the Canadian Security Intelligence Service (CSIS) explicitly notes that: ‘The Service collects information relating to Canada’s security, not evidence for a court of law’.81 Unfortunately, in its own contemporary overstretched and overburdened condition, the UK’s MI5 appears to be going more down the producing-for-court route.82 Indeed, from a ‘purer’ intelligence perspective, this appears to be a counter-productive development for that agency. This suggests its greater enmeshment in a web of highly set law court requirements.83 Much can therefore be learned from these developments. Before introducing the Arar Commission recommendations in Canada during 2006, the Canadian intelligence and security system similarly had its own portfolio of shortcomings from which valuable lessons were drawn.84

Generally, intelligence targeting must be kept carefully refined. An advisable move is for all agencies to engage in a greater degree of reflection about their methods and processes. A better recall of their functional ‘roots’ and ‘heritage’ is helpful. This is not least through adequately remembering the historical dimensions of their functional rationale. This is a movement that is especially useful in our contemporary era, which has been appropriately characterized as being substantially ‘back to the future’.85

December 2009; S. Shane, ‘News Analysis: A Year of Terror Plots, Through a Second Prism’, The New York Times, 13 January 2010. 81Canadian Security Intelligence Service (CSIS), Communicating with Canadians (Ottawa: Government of Canada 2006) p.6. 82See, for example, G. Corera, ‘The Reality of MI5’s Work’, BBC News Online, 10 November 2006. 83‘MI5’s ‘‘Torture’’ Evidence Revealed’, BBC News Online, 21 October 2005; ‘Lords Reject Torture Evidence Use’, BBC News Online, 8 December 2005; ‘Judge Critical of MI5 Testimony’, BBC News Online, 12 October 2006. 84W. Wark, ‘Learning Lessons (and how) in the War on Terror: The Canadian Experience’, International Journal 60/1 (2004–2005) pp.71–90. 85For the ‘dangers of a debased collective mentality, tenuous grasp of history’ and related issues, see W.K. Wark, ‘Introduction: ‘‘Learning to Live with Intelligence’’’, Intelligence and National Security 18/4 (2003); see also C. Andrew, ‘Intelligence Analysis Needs to Look Backwards Before Looking Forward,’ History & Policy (June 2004); R. Popplewell, ‘‘‘Lacking Intelligence’’: Some Reflections on Recent Approaches to British Counter- Insurgency, 1900–1960’, Intelligence and National Security 10/4 (1995) pp.336–52. For other ‘historical resonances/parallels’, e.g. G. Stewart, ‘Al-Qaeda, Victorian Style’, The Times, 5 August 2005; B. Hoffman, Inside Terrorism (New York: Columbia University Press 2006) p.7; R.B. Jensen, ‘Daggers, Rifles and Dynamite: Anarchist Terrorism in Nineteenth Century Europe’, Terrorism and Political Violence 16/1 (2004) pp.116–53; E. Aydinli, ‘Before Jihadists There Were Anarchists: A Failed Case of Transnational Violence’, Studies in Conflict & Terrorism 31/10 (2008) pp.903–23; R.B. Jensen, ‘The International Campaign Against Anarchist Terrorism, 1880–1930s’, Terrorism and Political Violence 21/1 (2009) pp.89–109; W. Kassel, ‘Terrorism and the International Anarchist Movement of the Late Nineteenth and Early Twentieth Centuries’, Studies in Conflict & Terrorism 32/3 (2009); J. Lyon (ed.), ‘Introduction’ to J. Conrad, The Secret Agent (Oxford: Oxford University Press 2004 [1907]) p.xi.

390 Intelligence and National Security

Intelligence degradation must be strenuously avoided. Increasingly, the shortcomings of pursuing a route that concertinas specialist, higher, and macro level ranging intelligence capabilities appear to be exposed publicly. Instead of becoming overly focused on fast moving day-to-day operational minutiae, an appropriate long-view strategic focus simultaneously needs to be carefully maintained.86 Once the more structural changes have been implemented, some more cultural changes can be pursued. These can be wider and deeper-reaching in their impact.87 They are examined next.

2. Cultural Change and Investigations Becoming More A Priori

As already introduced above, the FBI continues to require an extended cultural transformation. In its domestic counter-terrorism investigations, the FBI can effectively realize a yet greater capacity for agility and flexibility. This involves a movement from investigations being so mainly post facto in their nature to being more a priori.88 Or, to use a constructive distinction borrowed from US Judge Richard Posner, culturally the FBI must be less like ‘dogs’ and more like ‘cats’ in terms of its outlook and behaviour.89 Such a shift in the FBI’s domestic counter-terrorism investigations brings an added benefit: arguably, the requirement to better pre-empt domestic terrorist attacks is more advantageously reformed. The FBI would undergo a shift to being more proactive and ‘ahead of the curve’ of events.90

Further emergency preparedness offers a helpful way forward. By successfully adopting these constructs, the FBI is better placed to implement a greater forward-looking risk management and opportunity-generation approach. This offers improved ‘risk pre-emption’ possibilities. This is rather than instead emphasizing more after-the-event crisis management or first- responder approaches. Adopting this proposed ‘forward’ approach is highly advisable, helping the FBI to better foresee and prevent potential terrorist attacks.

Simultaneously, the process of ‘reflecting back’ and ‘learning lessons’ during, or from, investigations should not atrophy. However, while being ‘bottom-up’ informing, these activities must be marginally rolled back from the real-time frontline ‘current affairs’-focused dimensions of the FBI’s

86M.V. Rasmussen, The Risk Society at War (Cambridge: Cambridge University Press 2006) p.206; H. Strachan, ‘Strategy as a Balancing Act: The UK’s Dilemma’, RUSI Journal 153/3 (2008) pp.6–10. 87See also C.S. Gray, ‘Out of the Wilderness: Prime Time for Strategic Culture’, Comparative Strategy 26/1 (2007) pp.1–20; J.D. McCausland, Developing Strategic Leaders for the 21st Century (Carlisle, PA: Strategic Studies Institute, U.S. Army War College 2008). 88See also R.S. Mueller, III, Director, FBI, ‘Speech – Council on Foreign Relations, Washington, D.C.’, FBI Press Release, 3 February 2009. 89Judge Richard A. Posner, ‘Why the United States Needs a Counterpart to CSIS or MI–5’, talk delivered at the Canadian Association for Security and Intelligence Studies (CASIS) 2006 Annual International Conference, Ottawa, Canada, 26 October 2006. 90See, for example, A.K. Cronin, ‘Behind the Curve: Globalization and International Terrorism’, International Security 27/3 (2002–3) pp.30–58.

Addressing US Domestic Counter-terrorism Intelligence 391

police-work. Thereby, more appropriate supportive ‘top-down’ intelligence- associated informing and warning qualities can be offered.91 The ‘seeing the wood for the trees’ analogy resonates, also allowing for some extended directing and thinking ‘outside of the box’.92

The improved intelligence penetration of terrorist activities also assists. An extended intelligence methodology, involving the employment of extended surveillance activities, allows authorities much. This includes the confidence to permit a terrorist operation to mature to a sufficiently convincing extent before arrests are made. Two important advantages of adopting this approach can be highlighted: firstly, the terrorists readily produce valuable future investigative leads. Secondly, arrests made at a later stage in the development of a plot can offer distinct ‘added value’. Arrests at this later stage tend to uncover considerably less disputable (physical) evidence. Broadly ranging consensus can be built by demonstrat- ing convincingly, e.g. communicating to the public via the media, that the threat is sufficiently genuine. Facts can have greater potential to ‘speak for themselves’. Thereby, more of a self-generating and sustaining ‘unique selling point’ (USP), and hence legitimacy, for the case is offered publicly. Enhanced potential for successful subsequent prosecution similarly is better realized.

Ultimately, there is the increased potential for the application of a more refined mode of pre-emption. As Harvard Professor Alan Dershowitz has observed, pre-emption is a risky approach to adopt, as it is a ‘knife that cuts both ways’.93 Therefore, by applying a greater intelligence methodol- ogy, the scenario that eventually emerges is increasingly engineered. This ensures that there are better possibilities engendered for the course of action adopted to ‘cut’ (work) more the way as desired. Borrowing from Sir David Omand, the former Intelligence and Security Coordinator in the UK Cabinet Office, overall this approach allows for the better application of the ‘rapier’, rather than the ‘bludgeon’, in intelligence and security operations.94 This scenario can be contrasted with the Padilla case from 2002, which posited a ‘dirty bomb’ plot directed at Chicago. Here, overly zealous early action was counter-productive and left the authorities with

91‘Second Sight – Michael Heimbach, Assistant Director of the FBI’s Counter-terrorism Division’, Jane’s Intelligence Review, 19 February 2009. 92For the value of ‘scenario’ and ‘horizon-scanning’ work, B. Ralston and I. Wilson, The Scenario Planning Handbook: Developing Strategies in Uncertain Times (Mason, OH: Thomson South-Western 2006); G. Ringland, Scenario Planning, 2nd ed. (London: Wiley 2006). 93For more on ‘pre-emption’, A.M. Dershowitz, Preemption: A Knife That Cuts Both Ways (London: W.W. Norton & Co. 2006); see also the cautions in B.E. Harcourt, Against Prediction: Profiling, Policing, and Punishing in an Actuarial Age (Chicago, IL: University of Chicago Press 2007). 94D. Omand, ‘Reflections on Secret Intelligence’, Gresham College Transcript, 20 October 2005.

392 Intelligence and National Security

embarrassingly little material with which to later make a compelling prosecution case.95

Whatever the mixed eventual outcome of contemporary change develop- ments currently underway vis-à-vis the FBI, some clear conclusions emerge. Implementing a shift in investigative approach demonstrably would be of long-term value to the FBI. This is particularly where the intelligence methodology of ‘wait and watch’ continues to burgeon and figures through (i) its rigorous application in a substantially extended and enhanced systemic and systematic form, and where (ii) it is then constantly maintained into the future in a consistent manner. A brief examination of how the domestic intelligence services of other countries can be drawn on as viable models for the FBI is now undertaken. Both in organizational (structural) and cultural (even philosophical) terms, the value of adopting an enhanced intelligence methodology is demonstrated.

The Domestic Intelligence and Security Services Model

Usefully applied intelligence methodologies exist elsewhere. In recent years, there has been a sizeable amount of discussion about whether the British Security Service (MI5) would be a commendable model on which to base reform for the FBI.96 However, eventually Washington decided against pursuing this option.97 Understandably in the United States, where ‘internal liaison’ is a sizeable challenge between the multiple agencies that already exist, there was opposition towards the creation of yet another separate agency to handle domestic counter-terrorism intelligence. Such a proposal was viewed as unhelpful from several vantage points. This included from a US domestic intelligence-sharing perspective.98 Partly as a consequence of these arguments, the United States decided that the FBI would keep its domestic counter-terrorism intelligence role. This was despite the perceived shortcomings around 9/11.

The FBI’s remit has since continued to proliferate exponentially. This has been along with the tensions between the differing intelligence and security methodologies trying to be reconciled within the one agency. By 2006, as

95M. Davis, ‘Padilla Case Highlights Terror Debate’, BBC News Online, 22 November 2005. 96See, for instance, T. Harnden, ‘US May Set Up MI5-style Spy Agency in Security Shake-up’, The Daily Telegraph, 31 October 2002; see also T. Masse, ‘Domestic Intelligence in the United Kingdom: Applicability of the MI-5 Model to the United States’, Congressional Research Service, 19 May 2003; J. Burns and M. Huband, ‘US Considers Security Reforms Along UK Lines’, The Financial Times, 5 May 2003; G. Corera, ‘USA Studies UK Security Service’, Jane’s Intelligence Review, 23 January 2003; see also US National Commission, 9/11 Report, 22 July 2004, p.423; RAND, ‘Confronting the ‘‘Enemy Within’’’; S.J. Paltrow, ‘MI5 Could Be Model for Revamped U.S. Intelligence Agency’, The Wall Street Journal, 10 October 2004. 97‘Bush Sets Up Domestic Spy Service’, BBC News Online, 30 June 2005. 98‘Statement of William P. Barr to the National Commission on Terrorist Attacks Upon the United States’, Sixth public hearing of the National Commission on Terrorist Attacks Upon the United States, 8 December 2003.

Addressing US Domestic Counter-terrorism Intelligence 393

Senator Leahy observed, this had been accomplished to an extent. Yet, simultaneously, much work remained to be done. The debates over whether the United States needs a separate domestic intelligence agency also continue to be aired, demonstrating the distinct lack of consensus on this issue.99

Further insights have been forthcoming. As explored in-depth by RAND, other domestic intelligence and security services, or at least aspects of their functioning, can be used as viable referential models for the basis of domestic counter-terrorism intelligence reform to the FBI. This remains the case even if a separate domestic intelligence agency or bureaucracy, adding to the 17 (including the Office of the Director of National Intelligence – ODNI) that already exist in the United States, is not created. The services drawn upon for illustrative purposes notably include MI5 and the Canadian Security Intelligence Service.100 Their instructive utility to the FBI continues to be upheld into 2010. Most significantly, this is because those services represent ‘purer’ intelligence organizations and are (generally) exponents of a stronger intelligence methodology. Despite some renewed US Department of Homeland Security (DHS) and Congressional interest being emergent during late October 2008, the creation of another US intelligence bureau- cracy is still unlikely to be easily introduced or to be forthcoming anytime soon.101 The FBI therefore has no choice but to continue to raise its own intelligence game.

Other conclusions crystallize. Some separation, particularly of certain powers – such as that of arrest, allocated to the police in the other countries cited here (the UK and Canada) – continues to be highly advisable. Again, this is so that the ‘ends’ of those types of domestic counter-terrorism intelligence operations do not conflict, or at least do not clash so strongly, with the ‘means’ deployed. The balance between methodologies being pursued can move increasingly from figuring in more of a versus (oppositional) and divided form, to a vis-à-vis (complementary) and unified mode of operating. Further empowering shifts, allowing for improved methodological fusion, can still be undertaken in a viable manner.

Ultimately, whatever is decided, any lessons learnt from these models should not be assimilated uncritically. This is not least as those agencies (MI5 and CSIS) similarly have their own portfolio of shortcomings, as they likewise continue to undergo their own changes in such dynamic operating

99See Discussants: Richard A. Posner, Circuit Judge, U.S. Court of Appeals for the Seventh Circuit, Senior Lecturer, University of Chicago Law School and Juliette Kayyem, ‘Online Debate: Does the United States Need a Domestic Intelligence Agency?’, Council on Foreign Relations (CFR), 17 November 2006; Svendsen, Intelligence Cooperation and the War on Terror, p.55; see also as cited below. 100See, for example, the in-depth RAND report on this issue, Chalk and Rosenau, Confronting the ‘Enemy Within’. 101See, for instance, ‘U.S. Policymakers Mull Creation of Domestic Intelligence Agency’, CNN.com, 20 October 2008; see also ‘Should the United States Establish a Dedicated Domestic Intelligence Agency for Counterterrorism?’ RAND Research Brief, October 2008; G.F. Treverton, Reorganizing U.S. Domestic Intelligence: Assessing the Options (Santa Monica, CA: RAND 2008).

394 Intelligence and National Security

environments. However, a conclusion that emerges clearly from examining these models is that by overall adopting a greater ‘intelligence methodology’ significant benefits can be brought to the FBI. Notably, this is throughout its whole organization and in relation to all of its operational processes. This is especially when those movements are implemented comprehensively, including in cultural terms. This observation now opens the way for some wider conclusions.

Conclusions

Valuably, Hitz observed in 2008 that: ‘I believe it is too early to conclude, as some important observers apparently have, that the FBI cannot perform its domestic intelligence role competently’. He continued:

Congress and the executive branch will have to monitor carefully the FBI’s success in creating a domestic intelligence career service to gauge whether or not the bureau’s law-enforcement culture can be modified to adopt an MI–5 competence. I believe that it will, as . . . cross-cutting responsibilities like the [(US Intelligence Community-spanning) Na- tional Counterterrorism Center] NCTC gather importance and effec- tiveness, but the jury is still out.102

Whichever developments are particularly highlighted for examination, the ongoing requirement to engage more with an intelligence methodology in the FBI context continues to need to be energized and extended further. Moreover, this must be accomplished in a long-term sustainable manner.103

Otherwise, any viable post–9/11 reforms of the FBI in the area of domestic counter-terrorism intelligence, and the driving momentum behind them, will instead increasingly stagnate. This last development would be counter- productive for both the United States itself, as well as for its key counter- terrorism partners, such as, internationally, the UK and Canada.

Alternatively, concerns abound that we will have to wait for the least desirable ‘spark’ in the ‘tinderbox’ to act as a stimulus for more substantial change. Namely, this is some future attack on American soil that would surely provoke a further wave of reform. Indeed, a claim has surfaced that it is likely that the ‘MI5-model’ would be adopted by the United States in the aftermath of another ‘mass casualty’ attack similar to 9/11.104

Whatever transpires, to paraphrase the observation of an anonymous commentator: ‘Americans are more interested in results; Europeans are more interested in process’.105 Today, however, the FBI and all of its personnel throughout the whole organization must become more interested in its

102Hitz, Why Spy?, p.193. 103For some FBI recognition of this factor, FBI Director Mueller, ‘Director to Police Chiefs: Intelligence is Our Future’, FBI Press Release, 10 November 2008. 104Information from a non-attributable source. 105Based on paraphrased information from a non-attributable source.

Addressing US Domestic Counter-terrorism Intelligence 395

process(es). Otherwise, the results that the American people most desire – notably long-term sustainable public safety and security – are going to be increasingly elusive. Without getting too constrained by bureaucratic factors and machinations, ‘culture-change’ stands out as the best area on which to concentrate. This is also the best area to continue investing and driving transformative efforts vis-à-vis the twenty-first-century FBI.

A commendable way forward is pursuing more of an intelligence- dominated approach. Rightly, as the FBI has recognized in 2009, this can be characterized as consisting of the effective distribution and balance of the elements of ‘assess, evaluate, monitor, and – if required – disrupt’.106

Regardless of the perceived scale of the domestic terrorist threat confronted over time, as recent terrorism-related cases towards the end of 2009 and into 2010 have served to highlight, a more considered form of vigilance should not be neglected by the United States.

Moving along the proposed lines of extended ‘waiting and watching’ activities is key. This offers (i) an approach that strives to reach wider and deeper than current efforts, also (ii) allowing for the setting of more suitably refined (and higher) risk management thresholds, while (iii) simultaneously taking ‘proportionality’ considerations adequately into account during ope- rations.107 Clearly adopting an enhanced comprehensive intelligence metho- dology can offer an appropriate panacea to all of those concerns. Qualitatively, as well as quantitatively, the FBI would do well to continue rigorously pursuing this route in a sustained manner into the future. This includes in both structural and cultural terms.

Finally, as FBI Director Robert Mueller argued in his Congressional testimony of March 2009:

Today, the Bureau is a stronger organization, combining better intelligence capabilities with a longstanding commitment to protecting the American people from criminal threats. And we are also mindful that our mission is . . . also to safeguard American liberties.108

Broadly, when reflecting over the long term of the years 2000–10, although there have been significant problems and paucities encountered along the way, the contemporary FBI has made some progress. In its condition of ongoing transformation, so far the FBI appears to be heading in a more

106Philip Mudd, Associate Executive Assistant Director, National Security Branch, FBI, ‘Statement Before the Senate Committee on Homeland Security and Governmental Affairs’, FBI Press Release, 11 March 2009; see also E. Schmitt, ‘F.B.I. Agents’ Role is Transformed by Terror Fight’, The New York Times, 19 August 2009. 107On ‘proportionality’ considerations, A.D.M. Svendsen, ‘Strategy and Disproportionality in Contemporary Conflict’, Journal of Strategic Studies 33/3 (June 2010) pp.367–99. 108‘Statement of R.S. Mueller, III, Director, FBI’, p.5; for later insights, R.S. Mueller, III, Director, Federal Bureau of Investigation, ‘Statement Before the House Committee on Appropriations, Subcommittee on Commerce, Justice, Science, and Related Agencies’, FBI Website, 17 March 2010.

396 Intelligence and National Security

positive than negative direction. Its increased adoption of intelligence elements is commendable.

Complacency, however, should not ensue. Further time is now required to see where the most recently implemented developments take us in the future.109 While notes of caution should still be sounded on a regular basis, whichever road is taken, and whatever various ‘moments’ of weakness are encountered, the intelligence dimension remains central and essential for the FBI. This is especially for its counter-terrorism work, with added use beyond for the tackling of other concerning crimes. By comprehensively implement- ing an enhanced intelligence approach in an effectively inter-connected way, the contemporary FBI can continue to transform in a most expeditious manner as the twenty-first century progresses.

Acknowledgements

This article is based in part on papers delivered at the British Association for American Studies (BAAS) Conference, held at the University of Edinburgh in March 2008, and the annual conference of the American Politics Group (APG), held at the Rothermere American Institute and St. Anne’s College, University of Oxford, in January 2009.

109See also S.S. Hsu, ‘FBI Names Veteran Officer to Oversee Intelligence Divisions’, The Washington Post, 21 April 2010.

Addressing US Domestic Counter-terrorism Intelligence 397