•• Congressional iiii§ • 111 Research Service-------------------- The Federal Bureau of Investigation and Terrorism Investigations Jerome P Bjelopera Specialist in Organized Crime and Terrorism December 28 2011 Congressional Research Service 7-5700 www crs gov R41780 CRS Report for Congress Prepared for Members and Committees of Congress The Federal Bureau of Investigation and Terrorism Investigations Summary The Federal Bureau of Investigation FBI the Bureau is the lead federal law enforcement agency charged with counterterrorism investigations Since the September 11 2001 9 11 attacks the FBI has implemented a series of reforms intended to transform itself from a largely reactive law enforcement agency focused on investigations of criminal activity into a more proactive agile flexible and intelligence-driven agency that can prevent acts of terrorism This report provides background information on key elements of the FBI terrorism investigative process based on publicly available information It discusses • several enhanced investigative tools authorities and capabilities provided to the FBI through post-9 11 legislation such as the USA PATRIOT Act of 2001 the 2008 revision to the Attorney General’s Guidelines for Domestic FBI Operations Mukasey Guidelines and the expansion of Joint Terrorism Task Forces JTTF throughout the country • intelligence reform within the FBI and concerns about the progress of those reform initiatives • the FBI’s proactive intelligence-driven posture in its terrorism investigations using preventative policing techniques such as the “Al Capone” approach and the use of agent provocateurs and • the implications for privacy and civil liberties inherent in the use of preventative policing techniques to combat terrorism This report sets forth possible considerations for Congress as it executes its oversight role These issues include the extent to which intelligence has been integrated into FBI operations to support its counterterrorism mission and the progress the Bureau has made on its intelligence reform initiatives Congressional Research Service The Federal Bureau of Investigation and Terrorism Investigations Contents Introduction 1 Enhanced Investigative Authorities Tools and Capabilities 2 USA PATRIOT Act 3 Dismantling “the Wall” Between Intelligence and Criminal Investigations 3 Roving Wiretaps 5 Expanded Use of Devices that Record the Sources of Incoming and Outgoing Communications 5 “Sneak and Peek” Search Warrants 6 Increased Access to Business Records 6 National Security Letters 6 Debate over Civil Liberties Issues 9 Revised Attorney General Guidelines 11 Joint Terrorism Task Forces JTTFs 13 Intelligence Reform 14 Reform Initiatives A Work in Progress 17 Terrorism Prevention and Proactive Investigations 18 The Capone Approach 20 Agent Provocateur Cases 21 Balancing Civil Liberties against Terrorism Prevention 23 Considerations for Congress 25 Figures Figure 1 Balancing Civil Liberties Concerns and Security 23 Contacts Author Contact Information 27 Acknowledgments 27 Congressional Research Service The Federal Bureau of Investigation and Terrorism Investigations Introduction The Federal Bureau of Investigation FBI the Bureau is the lead agency for investigating the federal crime of terrorism 1 which is defined under law as “an offense that is calculated to influence or affect the conduct of government by intimidation or coercion or to retaliate against government conduct ”2 This includes terrorist acts committed within and outside U S national boundaries 3 This report provides background on some of the key elements of the FBI terrorism investigative process based on publicly available information The September 11 2001 9 11 terrorist attacks have been called a major security law enforcement and intelligence failure 4 Prior to 9 11 the FBI was largely a reactive law enforcement agency—pursuing suspects after they had allegedly committed crimes Since 9 11 the Bureau has arguably taken a much more proactive posture particularly regarding counterterrorism 5 It now views its role as both “predicting and preventing” the threats facing the nation drawing upon enhanced resources 6 A few basic measures suggest this • Post-9 11 legislation—notably the USA PATRIOT Act P L 107-56 —dismantled “the Wall” between intelligence and criminal investigation and expanded the U S government’s ability to monitor terrorist suspects among other changes • Changes in the Attorney General’s Guidelines for Domestic FBI Operations and the FBI Domestic Investigations and Operations Guidelines give the FBI more leeway to engage in proactive investigative work that does not depend on criminal predication i e a nexus to past or future criminal activity • Since 9 11 a widening of the agency’s counterterrorism operations has occurred as well as closer liaison with agencies outside the Department of Justice DOJ This is most evident domestically in the increased number of its Joint Terrorism 1 Pursuant to 28 C F R 0 85 l the Attorney General has assigned responsibility to the Director of the FBI to “ l Exercise Lead Agency responsibility in investigating all crimes for which it has primary or concurrent jurisdiction and which involve terrorist activities or acts in preparation of terrorist activities within the statutory jurisdiction of the United States Within the United States this would include the collection coordination analysis management and dissemination of intelligence and criminal information as appropriate ” If another federal agency identifies an individual who is engaged in terrorist activities or in acts in preparation of terrorist activities the other agency is required to promptly notify the FBI 2 18 U S C 2332b g 5 A Subparagraph B enumerates the specific crimes covered by this definition The FBI differentiates hate crimes and other criminal activity from domestic terrorism partly by assessing the intent of the criminals involved in specific incidents Hate crimes “generally involve acts of personal malice directed at individuals” and lack the broader motivations and driving acts of domestic terrorism In addition the lines are not always clear between ordinary criminal acts and domestic terrorism In these instances FBI investigations also focus on clarifying the motives of the suspects involved—such as profit personal malice or an ideologically driven agenda 3 The extraterritorial jurisdiction for terrorism crimes is specified in 18 U S C 2332b e and f 4 The National Commission on Terrorist Attacks Upon the United States Final Report of the National Commission on Terrorist Attacks Upon the United States p xvi The Commission specifically attributed the 9 11 attacks to failures in four areas imagination policy capabilities and management See p 339 5 The FBI describes the post-9 11 changes in its approach in all major program areas at “The Intel-Driven FBI New Approaches ” http www fbi gov about-us intelligence intel-driven new-approaches 6 U S Congress House Committee on Appropriations Subcommittee on Commerce Justice Science and Related Agencies Statement of Robert S Mueller III Director FBI Federal Bureau of Investigations FY2012 Budget Hearing 112th Cong 1st sess April 6 2011 http www fbi gov news testimony fbi-budget-for-fiscal-year-2012 Hereafter Mueller Testimony April 6 2011 Congressional Research Service 1 The Federal Bureau of Investigation and Terrorism Investigations Task Forces JTTF These are multi-agency investigative units led by DOJ and the FBI and are designed to combine the resources of federal state and local law enforcement They are locally based and comprised of investigators analysts linguists Special Weapons and Tactics SWAT experts and other specialists from dozens of U S law enforcement and intelligence agencies 7 In 1999 there were 26 JTTFs throughout the United States 8 As of December 2011 there were over 100 • Evidence of growth within the FBI’s counterterrorism operations can also be seen in the agency’s increased allocation of agents to terrorism matters In April 2011 testimony to Congress FBI Director Robert Mueller “estimated that before 9 11 there were 10 000 FBI agents on the streets with 30 percent engaged in national security issues and the rest focused on criminal activity Since then Mueller said he has gained 4 000 more agents and the FBI’s focus is a 50-50 split between terrorism and other criminal activity like mortgage fraud ”9 • To further its proactive intelligence-driven counterterrorism mission the FBI established a National Security Branch NSB and a Directorate of Intelligence DI within the NSB Moreover the FBI has reportedly increased its intelligence analyst workforce from approximately 1 100 in October 2001 to more than 3 000 by September 2011 10 Enhanced Investigative Authorities Tools and Capabilities The FBI is an intelligence agency as well as a law enforcement agency 11 Since 9 11 the Bureau has taken what it describes as a more forward-leaning intelligence-driven posture in its terrorism investigations in order to prevent or disrupt terrorist acts not merely investigate them after they have occurred Shortly after the attacks FBI Director Robert Mueller wrote a memo to Special Agents in Charge of FBI Field Offices saying “while every office will have different crime problems that will require varying levels of resources the FBI has just one set of priorities Stop the next attack ”12 Then-Deputy Attorney General Paul McNulty described the DOJ’s aggressive proactive and preventative approach as 7 DOJ Joint Terrorism Task Force http www justice gov jttf Federal Bureau of Investigation FBI Terrorism in the United States 1999 p 44 9 Phillip Swarts “Director Warns Shutdown Would Harm FBI ” upi com April 7 2011 http www upi com Top_News Special 2011 04 07 Director-warns-shutdown-would-harm-FBI UPI-46091302214622 #ixzz1Ix7YBLZ2 10 Robert S Mueller III Director Federal Bureau of Investigation “Statement Before the Senate Committee on Homeland Security and Governmental Affairs” September 13 2011 http www fbi gov news testimony ten-yearsafter-9-11-are-we-safer See also FBI Intelligence Analysts Association “About FBI Intelligence Analysts ” http www fbianalysts org about aspx and Mueller Testimony April 6 2011 11 FBI Domestic Investigations and Operations Guide DIOG redacted December 16 2008 p 3 available at http www eff org fn directory 8364 354 Hereafter DIOG redacted 12 Garrett M Graff The Threat Matrix The FBI at War in the Age of Terrorism New York Little Brown and Co 2011 p 404 Hereafter Graff The Threat Matrix Chapter 11 of the book discusses the pressure brought to bear on the FBI immediately after 9 11 to prevent future attacks The author also reports that some former and current FBI special agents who worked in counterterrorism dispute the notion that prevention of terrorism only became a priority after 9 11 See pp 426-430 8 Congressional Research Service 2 The Federal Bureau of Investigation and Terrorism Investigations the only acceptable response from a department of government charged with enforcing our laws and protecting the American people Awaiting an attack is not an option That is why the Department of Justice is doing everything in its power to identify risks to our Nation’s security at the earliest stage possible and to respond with forward-leaning – preventative – prosecutions 13 The FBI’s post-9 11 transformation is particularly evident in four areas The USA PATRIOT Act provided the FBI additional authorities and enhanced investigative tools 14 The FBI and DOJ altered the way the agency investigated terrorism with the 2008 revision of The Attorney General’s Guidelines for Domestic FBI Operations The FBI expanded operationally via a proliferation of JTTFs across the United States In so doing it also increased its cooperation with state local and federal agencies Finally watershed changes were made in the Bureau’s intelligence program USA PATRIOT Act Shortly after the 9 11 attacks Congress provided the FBI with several additional investigative tools and expanded its authority to monitor and search suspects in terrorism-related and other investigations Many of these tools and authorities were contained in the USA PATRIOT Act P L 107-56 signed by President George W Bush on October 26 2001 The act amended several existing statutes such as the Foreign Intelligence Surveillance Act FISA of 1978 P L 95-511 the Electronic Communications Privacy Act of 1986 P L 99-508 and the various National Security Letter NSL statutes 15 Additional tools and authorities include • dismantling “the Wall” that inhibited the sharing of information between intelligence and criminal investigators • roving wiretaps • expanded use of devices that record the sources of incoming and outgoing communications • “Sneak and Peek” search warrants • increased access to business records and • expanded use of National Security Letters Dismantling “the Wall” Between Intelligence and Criminal Investigations Historically there have been differences between electronic surveillance wiretaps conducted for intelligence and for law enforcement purposes Among these is the protection of the constitutional rights of persons under criminal investigation A former government official describes the differences 13 Prepared Remarks of Deputy Attorney General Paul J McNulty at the American Enterprise Institute Washington D C May 24 2006 http www justice gov archive dag speeches 2006 dag_speech_060524 html 14 Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 USA PATRIOT Act P L 107-56 15 For more information on these authorities see CRS Report R40980 Government Collection of Private Information Background and Issues Related to the USA PATRIOT Act Reauthorization by Edward C Liu Congressional Research Service 3 The Federal Bureau of Investigation and Terrorism Investigations Law enforcement wiretaps are heavily regulated … they can only be carried out for a limited time They require constant supervision and review… They are approved for only specific types of crime… And once a crime begins the defendant can see transcripts of the wiretaps and challenge their legality… Intelligence wiretaps are different … they aren’t triggered by suspected criminal activity Any representative of a foreign government is fair game for an intelligence tap The rules that apply to law enforcement taps just aren’t appropriate for intelligence wiretaps 16 FISA regulates intelligence collection directed at foreign powers and agents of foreign powers in the United States to include those engaged in international terrorism 17 FISA required the government to certify that “the purpose” of surveillance was to gather foreign intelligence information 18 Prior to the USA PATRIOT Act DOJ turned the “primary purpose” standard into written policy that had the effect of limiting the coordination between intelligence and criminal investigators 19 This came to be known as “the Wall” between intelligence and law enforcement and the “unfortunate consequences” of this barrier to information sharing were noted by the 9 11 Commission in its report on the 9 11 attacks 20 Section 218 of the USA PATRIOT Act amended FISA to replace the phrase “the purpose” with the phrase “a significant purpose ” According to Senator Dianne Feinstein these changes were necessary to make it easier to collect foreign intelligence information under … FISA Under current law authorities can proceed with surveillance under FISA only if the primary purpose of the investigation is to collect foreign intelligence But in today’s world things are not so simple In many cases surveillance will have two key goals—the gathering of foreign intelligence and the gathering of evidence for a criminal prosecution Determining which purpose is the “primary” purpose of the investigation can be difficult and will only become more so as we coordinate our intelligence and law enforcement efforts in the war against terror 21 As one legal scholar described it by moving the FISA requirement from the purpose to a significant purpose the USA PATRIOT Act “knocked out the foundation for ‘the Wall ’”22 This removed impediments to the exchange of information about terrorism or other national security threats between intelligence and law enforcement personnel Other provisions of the USA PATRIOT Act also sought to increase intelligence information sharing Section 504 amended FISA by adding provisions allowing federal officers who conduct electronic surveillance to acquire foreign intelligence information to consult with federal law 16 Stewart Baker Skating on Stilts Why We Aren’t Stopping Tomorrow’s Terrorism Stanford CA Hoover Institution Press 2010 pp 40-1 For further discussion of this issue see chapter 3 Hereafter Baker Skating on Stilts 17 For the definitions within FISA for foreign power and agents of a foreign power see P L 95-511 §101 18 National Commission on Terrorist Attacks Upon the United States The 9 11 Commission Report Washington DC U S Government Printing Office 2004 p 78 Hereafter 9 11 Commission Report 19 Cedric Logan “The FISA Wall and Federal Investigations ” New York University Journal of Law and Liberty vol 4 no 209 p 229 http www law nyu edu ecm_dlv4 groups public @nyu_law_website__journals__journal_of_law_and_liberty documents documents ecm_pro_062708 pdf Hereafter Logan “The FISA Wall and Federal Investigations ” 20 9 11 Commission Report p 79 and Chapter 8 21 Statement of Senator Dianne Feinstein 147 Cong Rec S10591 October 11 2001 quoted in Logan “The FISA Wall and Federal Investigations ” pp 230-1 Full statement available at http frwebgate access gpo gov cgi-bin getpage cgi 22 Logan “The FISA Wall and Federal Investigations ” p 230 Congressional Research Service 4 The Federal Bureau of Investigation and Terrorism Investigations enforcement officers to coordinate efforts to investigate or protect against among other issues sabotage or international terrorism by a foreign power or an agent of a foreign power 23 And Section 203 amended the Federal Rules of Criminal Procedure to allow disclosure of grand jury information in certain circumstances including if that information is related to sabotage or international terrorism by a foreign power or an agent of a foreign power 24 Roving Wiretaps Federal law enforcement officers have the authority subject to court approval to conduct wiretaps and electronic surveillance on persons suspected of committing federal crimes A “roving” wiretap allows law enforcement officers to “follow” a subject and lawfully intercept that person’s communications with a single court order even if the target attempts to evade surveillance by changing telephones or other communications devices 25 According to an Assistant U S Attorney “Prior to roving wiretaps law enforcement agents and federal prosecutors had to invest substantial time and resources in obtaining a separate wiretap order for each additional telephone used by a subject during an investigation … Q uite often this resulted in a loss of valuable evidence through missed wiretap conversations relating to the criminal activity being monitored ”26 Before the USA PATRIOT Act the concept behind roving wiretaps did not apply to FISA 27 The USA PATRIOT Act amended the electronic surveillance portion of FISA to allow government agents to continue surveillance when “the target of the surveillance switches from a facility e g a telephone associated with one service provider e g a telephone company to a different facility associated with a different provider ”28 Expanded Use of Devices that Record the Sources of Incoming and Outgoing Communications A trap and trace device shows all incoming phone numbers to a particular telephone 29 A pen register shows all outgoing phone numbers a particular telephone has called 30 Prior to 2001 FISA allowed law enforcement officers to collect incoming and outgoing numbers on a telephone 23 P L 107-56 §504 a k 1 B P L 107-56 §203 a 1 C V 25 Peter M Thomson “White Paper on The USA PATRIOT Act’s ‘Roving’ Electronic Surveillance Amendment to the Foreign Intelligence Surveillance Act ” The Federalist Society for Law and Public Policy Studies April 2004 p 1 http www fed-soc org doclib 20070326_rovingsur pdf 26 Ibid 27 Ibid p 2 28 P L 107-56 §206 See also U S Congress House Committee on the Judiciary Subcommittee on Crime Terrorism and Homeland Security USA Patriot Act Reauthorization Statement of Todd M Hinnen Acting Assistant Attorney General 112th Cong 1st sess March 9 2011 p 1 29 18 U S C §3127 3 defines a “trap and trace device” as “a device or process which captures the incoming electronic or other impulses which identify the originating number or other dialing routing addressing and signaling information reasonably likely to identify the source of a wire or electronic communication provided however that such information shall not include the contents of any communication ” 30 18 U S C §3127 3 defines a “pen register” as “a device or process which records or decodes routing addressing or signaling information transmitted by an instrument or facility from which a wire or electronic communication is transmitted provided however that such information shall not include the contents of any communication ” 24 Congressional Research Service 5 The Federal Bureau of Investigation and Terrorism Investigations line The USA PATRIOT Act expanded the law to permit the capture of comparable information related to other forms of communication including the Internet electronic mail web surfing and all other forms of electronic communications 31 “Sneak and Peek” Search Warrants In general police officers serving a warrant must “knock and announce”—that is give the subject notice that they are the police and are serving a warrant They may enter and search even if the subject is not present at the premises to be searched but they must leave a copy of the warrant and an inventory of what was seized giving notice that the premises was searched 32 The USA PATRIOT Act amended Title 1833 to allow federal law enforcement officers to request from the courts a delayed-notice so-called “sneak and peek” search warrant allowing officers to enter and search a premises without immediately notifying the owner when such notice may have an adverse result e g tipping off a suspect or co-conspirators 34 This authority has been used rarely in terrorism cases In the three years for which data are available October 1 2006-September 30 2009 the Director of the Administrative Office of the United States Courts reported to Congress that 2 332 delayed-notice search warrant requests were made Drug-related offenses accounted for 1 618 69 4 % of these The next largest category of offense for such warrants was fraud 122 warrants 5 2% Fifteen requests less than 1% were made for terrorism cases 35 Increased Access to Business Records The USA PATRIOT Act amended FISA to authorize the FBI to seek an order from the FISA Court for the production of any tangible things including books records papers documents and other items in a terrorism or counterintelligence investigation provided that such investigation of a United States person is not conducted solely upon the basis of activities protected by the First Amendment 36 National Security Letters National Security Letters NSL 37 are regularly used in FBI counterterrorism investigations and are roughly comparable to administrative subpoenas 38 They have been described as “form letters 31 P L 107-56 §214 and §216 Electronic Freedom Foundation “‘Sneak and Peek’ Search Warrants ” https ssd eff org your-computer govt sneakand-peek 33 18 U S C 3103 a which amended Rule 41 f 3 of the Federal Rules of Criminal Procedure 34 P L 107-56 §213 35 Director of the Administrative Office AO of the United States Courts Report on Applications for Delayed-Notice Search Warrants and Extensions for FY2007 FY2008 and FY2009 Table 2 The USA PATRIOT Act requires the AO to transmit to Congress annually beginning with data from FY2007 a full and complete report summarizing information reported by judges on delayed-notice search warrants 36 P L 107-56 §215 37 For additional information see CRS Report RL33320 National Security Letters in Foreign Intelligence Investigations Legal Background and Recent Amendments by Charles Doyle 32 Congressional Research Service 6 The Federal Bureau of Investigation and Terrorism Investigations signed by an FBI agent”39 used to request and collect non-content consumer records and related information from “telephone companies Internet service providers consumer credit reporting agencies banks and other financial institutions ”40 The FBI has said that “NSLs are indispensable investigative tools that serve as building blocks in many counterterrorism and counterintelligence investigations ”41 In 2010 the FBI made 24 287 NSL requests These requests asked for information related to 14 212 different individuals 42 NSLs predate the USA PATRIOT Act but the act increased their use by the FBI 43 For one thing the USA PATRIOT Act allowed the FBI to issue NSLs for full consumer credit reports 44 Additionally it widened the number of FBI officials who could issue NSLs 45 It also expanded the circumstances under which the letters could be issued by eliminating requirements that NSLs contain specific and articulable facts demonstrating a nexus to a foreign power or its agents continued 38 CRS Report R41619 National Security Letters Proposals in the 112th Congress by Charles Doyle p 1 Hereafter CRS Report R41619 39 Government Relations Office and Government Relations Committee American Association of Law Libraries AALL National Security Letters AALL Issue Brief 2007-2 Revised March 2007 September 2009 December 2009 February 2010 p 1 http www aallnet org aallwash ib032007b pdf Hereafter AALL National Security 40 CRS Report R41619 p 1 “Non–content” as it relates to telephone records does not include the content of conversations Rather the FBI can request items such as customer identity length of service and toll records 41 Office of the Inspector General Department of Justice A Review of the Federal Bureau of Investigation’s Use of National Security Letters March 2007 p 121 http www justice gov oig special s0703b final pdf Hereafter DOJ OIG Review of FBI Use of NSLs March 2007 According to a media report the FBI’s use of business record requests under section 215 of the USA PATRIOT Act increased in 2010—in 2009 the Bureau made 21 requests and in 2010 it made 96 This increase was reportedly attributable to some communications service providers not providing all information broadly asked for under NSLs Most business record requests in the first three months of 2011 reputedly involved Internet records See Ellen Nakashima “FBI Going to Court More Often to Get Personal Internet-Usage Data ” Washington Post October 25 2011 http www washingtonpost com world national-security fbi-going-tocourt-more-often-to-get-personal-internet-usage-data 2011 10 25 gIQAM7s2GM_story html 42 Letter transmitting report from Ronald Weich Assistant Attorney General to Senator Harry Reid Senate Majority Leader April 29 2011 http www fas org irp agency doj fisa 2010rept pdf 43 John Solomon and Carrie Johnson “FBI Broke Law for Years to Get Phone Records ” Washington Post January 19 2010 http www washingtonpost com wp-dyn content article 2010 01 18 AR2010011803982 html wprss rss_nation Hereafter Solomon and Johnson “FBI Broke Law ” NSLs are authorized under five federal statutes 1 Under the Electronic Communications Privacy Act 18 U S C § 2709 the FBI can obtain subscriber information for telephone and electronic communication as well as toll billing information and electronic communication transaction records According to FBI information from 2007 this is the NSL authority most frequently used by the agency 2 Under the Right to Financial Privacy Act 12 U S C § 3414 a 5 the FBI can obtain records from financial institutions This NSL authority is used in investigations of potential terror financing 3 Under the Fair Credit Reporting Act 15 U S C §§ 1681u the FBI can obtain from credit reporting agencies a the names of financial institutions with which the subject of the NSL has an account and b consumer identifying information 4 Also under the Fair Credit Reporting Act 15 U S C §1681v the FBI can obtain a full credit report—15 U S C §1681v was added by the PATRIOT Act 5 Under the National Security Act 50 U S C § 436 the FBI can obtain a variety of records related to the finances and travel of government employees These may be obtained only in investigations involving alleged improper disclosure of classified information by such employees See CRS Report R40138 Amendments to the Foreign Intelligence Surveillance Act FISA Extended Until June 1 2015 by Edward C Liu p 4 Hereafter CRS Report R40138 See also Robert S Mueller III Director Federal Bureau of Investigation “Statement Before the Senate Committee on the Judiciary ” March 27 2007 http www fbi gov news testimony the-fbis-use-of-national-securityletters-2 44 Ibid 15 U S C §1681v 45 Prior to the PATRIOT Act the FBI Director or a senior FBI Headquarters official could formally issue NSLs The PATRIOT Act expands and decentralizes this authority by granting it to FBI field office heads special agents in charge as well See CRS Report R41619 pp 1-2 See also Solomon and Johnson “FBI Broke Law ” Congressional Research Service 7 The Federal Bureau of Investigation and Terrorism Investigations Currently the information sought via an NSL “must only be relevant to protecting against international terrorism or clandestine intelligence activities ”46 However an NSL-related investigation of an American citizen or legal permanent resident cannot be based solely on First Amendment-protected activities 47 The implementation of the post-USA PATRIOT Act NSL regimen at the FBI has not been seamless In 2007 the DOJ Inspector General initially reported that “the FBI used NSLs in violation of applicable NSL statutes the Attorney General Guidelines and internal FBI policies ” although no evidence was found of criminal misconduct 48 In a subsequent report in 2008 the Inspector General concluded that DOJ and the FBI “have made significant progress in addressing the need to improve compliance in the FBI’s use ” but “it is too early to definitively state whether the new systems and controls developed by the FBI and the Department will eliminate fully the problems with NSLs that we identified ”49 Moreover between 2003 and 2006 some FBI personnel circumvented the NSL process using crisis conditions as a justification Namely in that time period one FBI headquarters unit issued 722 “exigent letters” to obtain telephone toll records for approximately 4 400 telephone numbers in lieu of NSLs The unit included representatives from three communications service providers These representatives typically received the exigent letters from FBI employees working alongside them None of the 722 exigent letters actually described the specific crises that supposedly made them necessary and in some cases there were no emergencies 50 The FBI General Counsel at the time Valerie E Caproni stated in congressional testimony that the exigent letters were borne out of a misunderstanding of the import of the USA PATRIOT Act’s amendments to ECPA Electronic Communications Privacy Act 18 U S C § 2709 For reasons lost in the fog of history—but no doubt partially the result of the intense pace of activity in the months following the 9 11 attacks—the FBI did not adequately educate our workforce that Congress had provided clear mechanisms to obtain records in emergency situations Although guidance was eventually provided in August 2005 the employees who had been using exigent letters for several years simply did not recognize the applicability of that guidance to their situation 51 46 AALL National Security p 1 CRS Report R41619 p 2 48 U S Department of Justice Office of the Inspector General A Review of the FBI Use of National Security Letters March 2007 p 124 http www justice gov oig special s0703b final pdf 49 U S Department of Justice Office of the Inspector General A Review of the FBI’s Use of National Security Letters Assessment of Corrective Actions and Examination of NSL Usage in 2006 March 2008 p 8 http www justice gov oig special s0803b final pdf 50 Valerie E Caproni General Counsel Federal Bureau of Investigation “Statement Before the House Judiciary Committee Subcommittee on the Constitution Civil Rights and Civil Liberties ” April 14 2010 http www2 fbi gov congress congress10 caproni041410 htm Hereafter Caproni “Statement ” In addition to the 722 letters 76 other exigent letters were signed by FBI personnel who worked outside of the headquarters unit in question On the letters see also U S Department of Justice Office of the Inspector General A Review of the Federal Bureau of Investigation’s Use of Exigent Letters and Other Information Requests for Telephone Records January 2010 pp 19-21 http www justice gov oig special s1001r pdf 51 Caproni “Statement ” 47 Congressional Research Service 8 The Federal Bureau of Investigation and Terrorism Investigations In March 2007 the FBI ended the use of exigent letters 52 Regardless they have played into recent congressional debate regarding the extension of key provisions within the PATRIOT Act 53 Debate over Civil Liberties Issues When the USA PATRIOT Act was signed into law then-Attorney General John Ashcroft said Law enforcement is now empowered with new tools and resources necessary to disrupt weaken and eliminate the infrastructure of terrorist organizations to prevent or thwart terrorist attacks and to punish the perpetrators of terrorist acts The American people can be assured law enforcement will use these new tools to protect our nation while upholding the sacred liberties expressed in the Constitution 54 And FBI Director Mueller has testified to Congress that “the USA PATRIOT Act has changed the way the FBI operates Many of our counterterrorism successes are the direct result of the provisions of the Act ”55 But others were concerned about the constitutional implications of the USA PATRIOT Act Law Professor Susan Herman notes that four of the provisions described above56 “exemplify several different ways in which the USA PATRIOT Act allow the executive branch to deviate from the presumptive Fourth Amendment57 model requiring 1 some form of individualized suspicion presumptively probable cause 2 antecedent judicial review where feasible and 3 notice of any search ”58 After passage of the act the Electronic Freedom Foundation worried that “the civil liberties of ordinary Americans have taken a tremendous blow with this law especially the right to privacy in our online communications and activities ”59 The Rutherford Institute argued that while the USA PATRIOT Act “may not have been designed to restrict American citizens’ civil liberties its unintended consequences threaten the fundamental constitutional rights of people who have absolutely no involvement with terrorism ”60 And the American Civil Liberties Union ACLU 52 Ibid For more information see CRS Report R40138 54 The USA Patriot Act Background Report PBS Newshour March 27 2006 http www pbs org newshour indepth_coverage terrorism homeland patriotact html Hereafter PBS Newshour March 27 2006 55 U S Congress Senate Committee on the Judiciary Sunset Provisions of the USA Patriot Act Testimony of Robert Mueller Director FBI 109th Cong 1st sess April 5 2005 56 P L 107-56 §213 §215 §218 and §505 57 The Fourth Amendment to the U S Constitution states “The right of the people to be secure in their persons houses papers and effects against unreasonable searches and seizures shall not be violated and no Warrants shall issue but upon probable cause supported by Oath or affirmation and particularly describing the place to be searched and the persons or things to be seized ” 58 Susan N Herman “The USA PATRIOT Act and the Submajoritarian Fourth Amendment ” Harvard Civil RightsCivil Liberties Law Review Vol 41 No 1 Winter 2006 pp 70-1 59 Electronic Freedom Foundation EFF EFF Analysis Of The Provisions Of The USA PATRIOT Act October 31 2011 http w2 eff org Privacy Surveillance Terrorism 20011031_eff_usa_patriot_analysis php 60 John W Whitehead and Steven H Aden “Forfeiting ‘Enduring Freedom’ for ‘Homeland Security ’ A Constitutional Analysis of the USA PATRIOT Act and the Justice Department’s Anti-Terrorism Initiatives ” American University Law Review Vol 51 October 2002 p 1083 http www wcl american edu journal lawrev 51 correctedaden pdf rd 1 53 Congressional Research Service 9 The Federal Bureau of Investigation and Terrorism Investigations charges that “the mammoth USA PATRIOT Act expanded government powers in ways that will diminish liberty for years to come ”61 They specifically note that the wiretapping and intelligence provisions of the act “minimize the role of a judge in ensuring that law enforcement wiretapping is conducted legally and with proper justification and they permit use of intelligence investigative authority to by-pass normal criminal procedures that protect privacy ”62 In 2005 debate over the USA PATRIOT Act resumed when Congress deliberated extension of certain provisions of the act that were scheduled to expire sunset Eventually Congress passed and on March 9 2006 President Bush signed into law an extension of several of the USA PATRIOT Act provisions that provided the FBI with additional authorities 63 In its legislation Congress added new civil liberties protections For example in the case of requests to the FISA Court for an order to obtain business records government agents are now required to present the court with data proving how the evidence sought will apply to the relevant investigation 64 The reauthorizing legislation also afforded greater protections for library medical and educational records and provides the party forced to disclose the business information the right to seek the advice of an attorney 65 In 2011 Congress again considered the extension of three expiring amendments to FISA Two of these were enacted as part of the USA PATRIOT Act—the “roving wiretap” and “business records” provisions The third amendment was enacted in 2004 as part of the Intelligence Reform and Terrorism Prevention Act P L 108-458 Known as the “lone wolf” provision it permits surveillance of non-U S persons engaged in or preparing to engage in international terrorism without requiring evidence linking those persons to an identifiable foreign power or terrorist organization In arguing for extension of these provisions before the House of Representatives law professor Nathan Sales testified that “they simply let counterintelligence agents use some of the same techniques that ordinary criminal investigators have been using for decades – techniques that federal courts repeatedly have upheld ”66 At the same hearing Acting Assistant Attorney General Todd Hinnen added “Robust substantive standards and procedural protections are in place to ensure that these tools are used responsibly and in a manner that safeguards Americans’ privacy and civil liberties ”67 61 American Civil Liberties Union ACLU Insatiable Appetite The Government’s Demand for New and Unnecessary Powers After September 11 updated October 2002 p 10 http www aclu org files FilesPDFs insatiable%20appetite%20final pdf 62 ACLU Legislative Analysis “USA Patriot Act Boosts Government Powers While Cutting Back on Traditional Checks and Balances ” November 1 2001 http www ratical org ratville CAH l110101a html 63 These are contained in the USA PATRIOT Improvement and Reauthorization Act of 2005 P L 109-177 and the USA PATRIOT ACT Additional Reauthorizing Amendments Act of 2006 P L 109-178 64 See 50 U S C 1861 b 2 65 See 50 U S C 1861 a 3 and 50 U S C 1861 d 1 B 66 U S Congress House Committee on the Judiciary Statement of Nathan A Sales Assistant Professor of Law George Mason University School of Law The Reauthorization of the PATRIOT Act Hearing 112th Cong 1st sess March 9 2011 p 1 http judiciary house gov hearings pdf Sales03092011 pdf 67 Ibid Statement of Todd M Hinnen Acting Assistant Attorney General Department of Justice p 4 http judiciary house gov hearings pdf Hinnen03092011 pdf Congressional Research Service 10 The Federal Bureau of Investigation and Terrorism Investigations Congress passed legislation S 990 to extend the provisions until June 1 2015 and President Obama signed the legislation P L 112-14 on May 26 2011 68 Revised Attorney General Guidelines The FBI and DOJ also emphasized their forward-leaning approach with the September 29 2008 revision of the Attorney General’s Guidelines for Domestic FBI Operations 69 which they claim “make the FBI’s operations in the United States more effective by providing simpler clearer and more uniform standards and procedures ”70 Referred to as the “Mukasey Guidelines” after Michael B Mukasey who was Attorney General at the time of their release this is the latest in a series of guidelines stretching back to 1976 that govern the FBI’s investigative activities 71 The Mukasey Guidelines went into effect on December 1 2008 In large part these guidelines sprang from the post-9 11 national security context in which the FBI surmised that it could not simply react to crimes It had to preemptively search for criminal counterintelligence and terrorist threats to the homeland 72 As the FBI’s General Counsel stated in congressional testimony We believe that this will allow the FBI to take additional necessary steps to becoming a more proactive organization One of the key issues that we think the FBI needs to be able to do is assess potential risks and vulnerabilities Having these additional techniques available at the assessment level we think will be key to the FBI’s ability to efficiently and effectively answer those questions and assess risks 73 The 2008 revision to the guidelines represents a consolidation of several other previously standalone documents that had governed FBI investigations Also a work in progress is the 2008 Domestic Investigations and Operations Guide DIOG —the FBI’s document governing the agency’s implementation of the Mukasey Guidelines—which the FBI modified in 2011 74 68 For more information see CRS Report R40138 Amendments to the Foreign Intelligence Surveillance Act FISA Extended Until June 1 2015 by Edward C Liu 69 Available at http www ignet gov pande standards prgexhibitg1 pdf 70 U S Department of Justice “Memorandum for the Heads of Department Components The Attorney General’s Guidelines for Domestic FBI Operations ” press release September 29 2008 http www justice gov ag readingroom guidelines-memo pdf 71 See Emily Berman Domestic Intelligence New Powers New Risks Brennan Center for Justice at New York University School of Law 2011 pp 8-9 11 Hereafter Berman Domestic Intelligence 72 Prepared Statement of Elisebeth Collins Cook Assistant Attorney General Office of Legal Policy DOJ and Valerie Caproni General Counsel FBI U S Congress Senate Select Committee on Intelligence Attorney General Guidelines for FBI Criminal Investigations National Security Investigations and the Collection of Foreign Intelligence 110th Cong 2nd sess September 23 2008 S HRG 110–846 Washington GPO 2009 p 10 http intelligence senate gov pdfs 110846 pdf 73 U S Congress Senate Select Committee on Intelligence Attorney General Guidelines for FBI Criminal Investigations National Security Investigations and the Collection of Foreign Intelligence 110th Cong 2nd sess September 23 2008 S HRG 110–846 Washington GPO 2009 p 17 http intelligence senate gov pdfs 110846 pdf Hereafter Hearing “Attorney General Guidelines ” 74 Department of Justice Office of the Inspector General Oversight and Review Division Investigation of Allegations of Cheating on the FBI’s Domestic Investigations and Operations Guide DIOG Exam Washington DC September 2010 pp 1 34 http www justice gov oig special s100927 pdf Interestingly this report discusses the findings of an investigation into a string of incidents in which FBI employees cheated on a mandatory exam covering the DIOG DIOG redacted p 2 For a description of the most recent changes to the DIOG see Charlie Savage “FBI Agents Get Leeway to Push Privacy Bounds ” New York Times June 12 2011 http www nytimes com 2011 06 13 us 13fbi html _r 1 Congressional Research Service 11 The Federal Bureau of Investigation and Terrorism Investigations The most prominent changes in the Mukasey Guidelines and the DIOG concern “assessments ” Agents and analysts may now use assessments outside of the more traditional preliminary and full investigations which require some level of factual predication 75 Preliminary investigations can be opened with “‘allegation or information’ indicative of possible criminal activity or threats to the national security ” Opening a full investigation requires an “‘articulable factual basis’ of possible criminal or national threat ”76 On the other hand opening an assessment does not require allegations information of possible criminal activity or threat or an articulable factual basis 77 Instead assessments are to follow a specifically articulated purpose of which there are six 78 • check leads on individuals or activities • check leads on groups or organizations • collect information to analyze potential threats and vulnerabilities • gather information for intelligence analysis or planning • vet and manage the agency’s confidential human sources informants and • collect foreign intelligence Assessments are not to be based on “arbitrary or groundless speculation nor can an assessment be based solely on the exercise of First Amendment protected activities or on the race ethnicity national origin or religion of the subject ”79 Assessments offer terrorism investigators a variety of techniques including public surveillance and the use of confidential informants to penetrate conspiracies 80 The Bureau has incorporated assessments into its investigative processes According to numbers made publicly available in March 2011 between December 2008 and March 2009 the FBI initiated 11 667 assessments to check leads on individuals activities groups or organizations These in turn led to 427 preliminary or full investigations Officials noted that about one-third of the assessments resulted from vague tips 81 Reportedly between March 2009 and March 2011 the Bureau opened 82 325 assessments About half of the assessments from this time frame 75 Hearing “Attorney General Guidelines ” p 17 DIOG redacted pp 76 85 77 According to the DIOG “Although difficult to define ‘no particular factual predication’ is less than ‘information or allegation’ as required for the initiation of a preliminary investigation For example an assessment may be conducted when there is a basis to know i whether more information or facts are required to determine if there is a criminal or national security threat and ii there is a rational and articulable relationship between the stated authorized purpose of the assessment on the one hand and the information sought and the proposed means to obtain that information on the other Regardless of whether specific approval or specific documentation is required an FBI employee should be able to explain the purpose of an assessment and the reason for the methods used to conduct the assessment Those FBI employees who conduct assessments are responsible for assuring that assessments are not pursued for frivolous or improper purposes and are not based solely on First Amendment activity or on the race ethnicity national origin or religion of the subject of the assessment ” DIOG redacted p 39 78 DIOG redacted pp 44-56 See also Andrew Kalloch “FBI General Counsel Defends New Guidelines ” Harvard Law Record December 4 2008 updated September 29 2009 http www hlrecord org 2 4463 fbi-general-counseldefends-new-guidelines-1 577396 79 DIOG redacted p 39 80 Charlie Savage “Wider Authority for F B I Agents Stirs Concern ” New York Times October 29 2009 81 Charlie Savage “F B I Casts Wide Net Under Relaxed Rules for Terror Inquiries Data Show ” New York Times March 26 2011 http www nytimes com 2011 03 27 us 27fbi html _r 2 sq savage st cse scp 3 pagewanted print Hereafter Savage “F B I Casts ” 76 Congressional Research Service 12 The Federal Bureau of Investigation and Terrorism Investigations focused on determining whether specific groups or individuals were spies or terrorists This pool of 42 888 assessments produced just under 2 000 full or preliminary investigations 82 Critics have voiced broad concerns about the Mukasey Guidelines One detailed study has noted that they “tip the scales too far in favor of relatively unchecked government power allowing the FBI to sweep too much information about too many innocent people into the government’s view In so doing they pose significant threats to Americans’ civil liberties and risk undermining the very counterterrorism efforts they are meant to further ”83 According to media reports Farhad Khera executive director of the nonprofit Muslim Advocates has suggested that the Attorney General Guidelines are invasive and based on “generalized suspicion and fear on the part of law enforcement not on individualized evidence of criminal activity ”84 The ACLU also criticized the large number of assessments the FBI appears to be initiating A policy counsel with the civil liberties group noted that the large number of assessments that did not lead to preliminary or full investigations are “against completely innocent people that are now bound up within the FBI’s intelligence system forever ”85 The FBI’s General Counsel viewed the numbers from a more proactive investigative posture “Recognize that the FBI’s policy—that I think the American people would support—is that any terrorism lead has to be followed up ”86 Under the Freedom of Information Act in late July 2010 the ACLU requested information from the FBI regarding the agency’s amassing of racial and ethnic data based on the new guidelines 87 As written the guidelines allow for the collection of information about ethnic or racial communities and justify the gathering of such information for proactive purposes The DIOG states that it should be done if it “will reasonably aid the analysis of potential threats and vulnerabilities and overall assist domain awareness for the purpose of performing intelligence analysis ”88 Joint Terrorism Task Forces JTTFs JTTFs are locally based multi-agency teams of investigators analysts linguists SWAT experts and other specialists who investigate terrorism and terrorism-related crimes Seventy-one of the 106 JTTFs currently operated by DOJ and the FBI were created since 9 11 Over 4 400 federal state and local law enforcement officers and agents—more than four times the pre-9 11 total— 82 Charlie Savage “F B I Focusing on Security Over Ordinary Crime ” New York Times August 23 2011 http www nytimes com 2011 08 24 us 24fbi html 83 Berman Domestic Intelligence p 1 84 Brent Jones “ACLU Seeks Information About FBI Racial Ethnic Data Collection ” Baltimore Sun July 28 2010 http articles baltimoresun com 2010-07-28 news bs-md-aclu-fbi-20100728_1_ethnic-data-profiling-aclurepresentatives Pete Yost “FBI Defends Guidelines on Eve of Senate Testimony ” Associated Press cited in boston com July 27 2010 http www boston com news nation washington articles 2010 07 27 fbi_defends_guidelines_on_eve_of_senate_testimony Hereafter Yost July 27 2010 85 Savage “F B I Casts ” 86 Ibid 87 Yost July 27 2010 88 DIOG redacted p 32 Congressional Research Service 13 The Federal Bureau of Investigation and Terrorism Investigations work in them These officers and agents come from more than 600 state and local agencies and 50 federal agencies 89 The FBI considers the JTTFs “the nation’s front line on terrorism ”90 They “investigate acts of terrorism that affect the U S its interests property and citizens including those employed by the U S and military personnel overseas ”91 As this suggests their operations are highly tactical and focus on investigations developing human sources informants and gathering intelligence to thwart terrorist plots JTTFs also offer an important conduit for the sharing of intelligence developed from FBI-led counterterrorism investigations with outside agencies and state and local law enforcement To help facilitate this especially as the threat of homegrown jihadists has emerged the number of top-secret security clearances issued to local police working on JTTFs has increased from 125 to 878 between 2007 and 2009 92 There is also a National JTTF which was established in July 2002 to serve as a coordinating mechanism with the FBI’s partners Some 40 agencies are now represented in the National JTTF which has become a focal point for information sharing and the management of large-scale projects that involve multiple partners 93 Intelligence Reform The 9 11 terrorist attacks have been called a major intelligence failure 94 In response to criticisms of its intelligence capabilities the FBI over the last decade has introduced a series of reforms 89 Federal Bureau of Investigation “Protecting America from Terrorist Attack Our Joint Terrorism Task Forces ” http www fbi gov about-us investigate terrorism terrorism_jttfs 90 Federal Bureau of Investigation “Protecting America Against Terrorist Attack A Closer Look at Our Joint Terrorism Task Forces ” May 2009 http www fbi gov page2 may09 jttfs_052809 html 91 Brig Barker and Steve Fowler “The FBI Joint Terrorism Task Force Officer ” The FBI Law Enforcement Bulletin vol 77 no 11 November 2008 p 13 92 Kevin Johnson “FBI Issues More Top Secret Clearance for Terrorism Cases ” USA Today August 12 2010 http www usatoday com news nation 2010-08-12-secret-clearances_N htm STRATFOR A Decade of Evolution in U S Counterterrorism Operations Special Report December 2009 http www stratfor com memberships 150745 analysis 20091216_us_decade_evolution_counterterrorism_operations ip_auth_redirect 1 CRS Report RL33033 Intelligence Reform Implementation at the Federal Bureau of Investigation Issues and Options for Congress by Alfred Cumming 93 DOJ “Joint Terrorism Task Force ” http www justice gov jttf 94 There is a large body of literature on the failures associated with the attacks of September 11 2001 and broader issues associated with the effectiveness of the Intelligence Community in general According to William E Odom Fixing Intelligence for a More Secure America New Haven CT Yale University Press 2003 p 187 the attacks of 9 11 represent a failure of both intelligence and policy See also The Commission on Intelligence Capabilities of the United States Regarding Weapons of Mass Destruction Report to the President of the United States March 31 2005 Hereafter cited as WMD Report Chapter 10 of this report “Intelligence at Home The FBI Justice and Homeland Security ” is the most germane with respect to FBI intelligence reform See also Senate Select Committee on Intelligence Report on the U S Intelligence Community’s Pre-War Intelligence Assessments on Iraq July 7 2004 See also the National Academy of Public Administration Transforming the FBI Progress and Challenges January 2005 Chapter 3 on Intelligence is most pertinent to the topic of this CRS report See also Richard A Posner Preventing Surprise Attacks Intelligence Reform in the Wake of 9 11 Palo Alto CA Hoover Institution Stanford University 2005 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 recently released in redacted form Congressional Research Service 14 The Federal Bureau of Investigation and Terrorism Investigations intended to transform the agency from a largely reactive law enforcement agency focused on criminal investigations into a more proactive agile flexible and intelligence-driven95 agency that can prevent acts of terrorism 96 Robert S Mueller III who became the FBI Director just prior to the 9 11 has vowed to assert headquarters’ control over the FBI’s historically fragmented and much-criticized intelligence program He signaled his intention to improve the FBI’s intelligence program by consolidating and centralizing control over intelligence capabilities both at FBI Headquarters and in the FBI’s largely autonomous field offices 97 He has contended that intelligence has always been one of the FBI’s core competencies 98 organic to the FBI’s investigative mission 99 and he asserted that the organization’s intelligence efforts have been and will continue to be disciplined by the intelligence cycle i e the development and conduct of intelligence collection requirements collection analysis and dissemination Since the 2001 attacks Director Mueller has instituted a number of reforms He created a new Directorate of Intelligence DI at headquarters He also acted on a recommendation by the Weapons of Mass Destruction Commission and established a National Security Branch at headquarters which integrated the FBI’s Counterterrorism and Counterintelligence Divisions with the DI the Weapons of Mass Destruction Directorate and the Terrorist Screening Center 100 More fundamentally perhaps Director Mueller established Field Intelligence Groups FIGs which could be viewed as a cornerstone of his reforms at each of the FBI’s 56 field offices in an effort to improve the agency’s intelligence capacity by combining its intelligence and investigative capabilities FIGs are comprised of agents analysts linguists and surveillance specialists A FIG’s principal mission is to identify intelligence gaps obtain and analyze raw intelligence from FBI investigations and sources and generate intelligence products and disseminate them to the intelligence and law enforcement communities in order to help guide investigations programs and policy Arguably the mission of the FIGs is nothing less than to “drive ” or inform the direction of the FBI’s counterterrorism effort by identifying assessing and attacking emerging threats “before they flourish ”101 Intelligence Information Reports IIRs are a primary component of the FBI’s post-9 11 transformation FIGs disseminate IIRs 102 These reports are formatted as teletype messages and 95 For purposes of this report intelligence is defined to include foreign intelligence counterintelligence and criminal intelligence Experts differ on the extent to which there may be a synergy between traditionally defined foreign intelligence and criminal intelligence One’s perspective on the relationship between the law enforcement and intelligence disciplines can have direct effects on policy preferences including the role of the FBI in domestic intelligence and domestic intelligence resource allocation strategies 96 P L 108-447 the FY2005 Consolidated Appropriations Act provided the FBI with additional human resource tools for recruitment and retention including authority to provide retention and relocation bonuses to certain categories of FBI employees and the establishment of an FBI Investigative Reserve Service 97 See statement of Robert S Mueller III Director FBI in U S Congress House Committee on Appropriations Subcommittee on the Departments of Commerce Justice State the Judiciary and Related Agencies June 18 2003 98 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 April 1 2001 99 See statement of Robert S Mueller III Director FBI in U S Congress Senate Judiciary Committee July 23 2003 100 FBI National Security Branch http www fbi gov about-us nsb 101 See statement of Robert S Mueller Director FBI in U S Congress Senate Judiciary Committee March 25 2009 102 Known as “direct dissemination ” this is a transformation of a post-9 11 FBI policy that centralized IIR continued Congressional Research Service 15 The Federal Bureau of Investigation and Terrorism Investigations shared electronically with the law enforcement and intelligence communities They contain “raw” intelligence—“unevaluated intelligence information generally from a single source that has not fully been evaluated integrated with other information or interpreted and analyzed ”103 These reports include information “extracted” from FBI case files 104 The agency emphasizes that the information in IIRs must not be “based solely on the exercise of First Amendment protected activities or on the race ethnicity national origin or religion of the subject ”105 In 2010 the FBI produced over 25 000 IIRs which included counterintelligence counterterrorism and criminal information as well as information related to cyber issues and weapons of mass destruction 106 In making intelligence a priority Director Mueller also adopted a Strategy Management System establishing a Strategic Execution Team SET to execute organizational changes and to build support and momentum for institutional change across the Bureau 107 Mueller testified in 2008 “we established Strategic Execution Teams to help us assess our intelligence program evaluate best practices decide what works and what does not work and to standardize it throughout the FBI The purpose of the SET is to accelerate improvements to our intelligence capabilities to ensure we are an intelligence-driven organization and to drive a change in mindsets throughout the FBI ”108 More specifically the FBI acted on SET recommendations and restructured the FIGs in each of its field offices to conform to one model based on best practices from the field and adapted to the size and complexity of each office As a result according to Director Mueller FIGHeadquarter coordination has improved In 2008 Mueller told Congress that another result of the continued dissemination from headquarters “In 2010 the FBI continued to adjust its intelligence dissemination practices During the early years of the FBI Directorate of Intelligence intelligence reporting was prepared by the Field Intelligence Groups in each of the FBI‘s Field Offices and was then sent to FBI Headquarters in Washington DC for review and editing prior to dissemination This was necessary to ensure consistency and quality in the raw reporting that the FBI provided to other parts of the Federal Government as well as to its State local tribal and foreign partners However in 2009 the Bureau determined that its raw intelligence reporting had reached a state of maturity that justified direct dissemination of intelligence reporting The FBI accelerated its original timetable and in March 2010 authorized all 56 field offices to directly disseminate most intelligence information reports IIRs to its Intelligence Community and law enforcement partners While the FBI continues to disseminate its analytic intelligence reports centrally a new dissemination team was added to the Directorate of Intelligence to improve efficiencies in sharing analytic intelligence with its partners and customers ” See Federal Bureau of Investigation FBI Information Sharing Report 2010 p 3 http www fbi gov stats-services publications national-information-sharing-strategy-1 fbi-information-sharing-report2010 Hereafter Federal Bureau of Investigation FBI Information 103 Request for Records Disposition Authority Standard Form 115 Job Number n1-065-10-25 National Archives and Records Administration December 14 2010 http 207 245 165 90 records-mgmt rcs schedules departments department-of-justice rg-0065 n1-065-10-025_sf115 pdf Interagency Threat Assessment and Coordination Group Intelligence Guide for First Responders p 30 http www nctc gov docs itacg_guide_for_first_responders pdf 104 Ibid 105 Federal Bureau of Investigation FBI Information p 21 106 Ibid p 22 107 See U S Congress Senate Committee on Homeland Security and Governmental Affairs A Ticking Time Bomb Counterterrorism Lessons from the U S Government’s Failure to Prevent the Fort Hood Attack 112th Cong 1st sess February 2011 p 53 http hsgac senate gov public _files Fort_Hood FortHoodReport pdf Hereafter A Ticking Time Bomb 108 U S Congress House Committee on the Judiciary Statement of Robert S Mueller III Director FBI 110th Cong nd 2 sess September 16 2008 Congressional Research Service 16 The Federal Bureau of Investigation and Terrorism Investigations single-model standardized FIG approach is that special agents and analysts are now able to transition more easily and quickly from one field office FIG to another 109 Reform Initiatives A Work in Progress Recently post-9 11 intelligence reform at the FBI has been critiqued by the Senate Committee on Homeland Security and Governmental Affairs HSGAC Its February 2011 report A Ticking Time Bomb Counterterrorism Lessons from the U S Government’s Failure to Prevent the Fort Hood Attack paints a mixed picture regarding FBI efforts to integrate intelligence with investigative operations 110 According to the committee’s report which focuses on the counterterrorism lessons derived from the U S government’s failure to prevent the November 2009 shootings at Fort Hood there is no question that the FBI has made substantial progress since 9 11 and has achieved many successes in countering terrorism as a result of FBI Director Mueller’s leadership 111 However it remains unclear whether the FBI has truly transformed into an “intelligence-driven” organization meaning that the analysis production and exploitation of intelligence is not simply yoked to the process of investigating cases en route to prosecution In essence in an intelligence-driven organization “intelligence is a preeminent objective separate from whether a prosecution occurs ”112 Others have echoed A Ticking Time Bomb’s appraisal In an April 2011 letter to Attorney General Eric H Holder and Director of National Intelligence James R Clapper Jr the FBI Intelligence Analysts Association FBI IAA criticized the efforts the agency has made toward becoming “intelligence-driven ”113 The letter stated that the Bureau has not yet fully established intelligence analysis as a core mission of the organization Rather than being a driver of operational activity intelligence is still typically seen as an enabler to the law enforcement mission Intelligence is often viewed as an operational asset an additional tool that can be used much in the same way that technology can be used to help investigate cases But to be “intelligence-driven” in the FBI cannot mean intelligence should be a surrogate or a component of the law enforcement mission America’s security requires that FBI operations be guided by the best possible assessment of the threat Intelligence must drive operations by identifying threats and vulnerabilities based on our nation’s criminal and national security concerns 114 109 Ibid A Ticking Time Bomb The report discusses findings from an investigation into the failure of the U S government to stop U S Army Major Nidal Hasan’s alleged mass shooting at Fort Hood TX in November 2009 It claimed 13 lives Forty-three people were injured in this attack as well 111 See A Ticking Time Bomb p 51 112 Ibid p 54 113 The FBI IAA used the letter to lay out what it sees as key traits for the next FBI director The key traits included the following “Trait one the next Director must have a deep understanding of and commitment to both the intelligence and law enforcement mission of the Bureau Trait two the next Director must strengthen a culture of collaboration within the FBI and across the USIC and continue building the FBI intelligence career service Trait three the next Director must be a seasoned manager of a global enterprise who can lead a group of diverse professionals—agents intelligence analysts and other FBI employees—and form strong partnerships to achieve the FBI’s mission ” See Letter from Clarence A Stiehm II President FBI Intelligence Analysts Association to James R Clapper Jr Director of National Intelligence and Eric H Holder United States Attorney General April 5 2011 http www fbiiaa org wpcontent uploads 2011 04 FBI_IAA_letter_to_DNI_Clapper_and_AG_Holder pdf 114 Ibid 110 Congressional Research Service 17 The Federal Bureau of Investigation and Terrorism Investigations One of the Bureau’s latest innovations regarding the integration of intelligence and operations is the “Fusion Cell Concept ” It appears to feature intelligence as a component of the law enforcement mission by blending interagency information sharing with targeting within the FBI’s counterterrorism division As described by a senior FBI counterterrorism official the Fusion Cell Concept “take s a target-centric emphasis added approach to the threat by combining FBI and Intelligence Community tactical analysis strategic analysis and operational capabilities to identify and mitigate the priority threats ”115 The FBI uses “intelligence generated from these Fusion Cells to strategically select targets posing the greatest threat ”116 The FBI’s public rhetoric about “Fusion Cells” stresses proactivity but it remains unclear how this substantially differs from the type of work that is supposed to occur in task force settings such as JTTFs However the FBI IAA has stated that analysts at the FBI continue to be relegated to “support” roles117 i e they react to direction from special agents rather than being full partners in an intelligence-driven investigative operation They argue that intelligence analysts should have professional parity with special agents to rapidly reform the FBI’s institutional culture The FBI IAA’s indictments of the agency’s efforts come from insiders working on intelligence matters within the FBI However it must be kept in mind that these same individuals publicly lobby on behalf of FBI intelligence analysts 118 A Ticking Time Bomb also emphasized that the necessary transformation of the FBI is incomplete and “we must be impatient for progress ”119 Specifically the committee cited the Fort Hood shootings as a warning that the FBI’s transformation remains a work in progress and that the FBI must accelerate efforts—especially given the growing complexity and diversity of the homegrown terrorist threat 120 Among its findings the committee said that the FBI’s Hassan inquiry was impeded by division among the agency’s field offices insufficient use of intelligence analysis outdated tradecraft and poor coordination within the JTTFs and between the JTTFs and headquarters 121 As a counterpoint the HSGAC report cited the case of the terrorist plot by Najibullah Zazi to attack the New York City subway system in September 2009 as an FBI success noting that the coordination across federal state and local departments led by two JTTFs was excellent and unprecedented 122 Terrorism Prevention and Proactive Investigations One observer has described intelligence gathering by the FBI in the post-9 11 context as “driven by a theory of preventive policing in order to anticipate the next terror attack authorities need to track legal activities… It focuses not on crime but on the possibility that a crime might be 115 Mark F Giuliano Assistant Director FBI Counterterrorism Division The Post 9 11 FBI The Bureau’s Response to Evolving Threats Statement for the Record at The Washington Institute for Near East Policy Stein Program on Counterterrorism and Intelligence April 14 2011 p 5 116 Ibid 117 FBI Intelligence Analysts Association Intel Shift “Needs To” Happen February 26 2010 118 The FBI IAA describes itself as an “independent advocate representing the professional interests both internally and externally” of the FBI’s intelligence analysts See http www fbiiaa org 119 A Ticking Time Bomb p 51 120 Ibid p 52 121 Ibid pp 55-56 122 Ibid p 55 Congressional Research Service 18 The Federal Bureau of Investigation and Terrorism Investigations committed at some future date ”123 This preventative stance can be seen in an intelligencegathering operation related to recent events in Libya The FBI has interviewed more than 800 Libyans residing in the United States to determine if there is any threat of terror attacks against American targets because of U S military action in Libya 124 During congressional testimony Director Mueller stated that the FBI wanted to make certain that “we are on guard with the possibility of terrorist attacks emanating somewhere out of Libya ”125 This proactive posture also involves challenges for the agency—especially in determining when individuals move from radical activity involving First Amendment-protected behavior to violent extremism 126 Because not all terrorist suspects follow a single radicalization roadmap on their way to executing plots U S law enforcement also faces the task of discerning exactly when radicalized individuals become real threats As suggested timing is everything To preemptively stop terrorists law enforcement requires accurate and timely intelligence The FBI generates terrorism cases from a number of sources Information about terrorist threats or suspicious incidents is brought to the attention of the FBI by the public other government agencies particularly those in the intelligence community state and local law enforcement ongoing FBI investigations including sources surveillance financial analysis 127 and tactical analysis and FBI Legal Attachés stationed abroad Most FBI investigations develop from information or leads generated by pre-existing FBI investigations or casework and liaison with other federal agencies or international counterparts A handful of leads stem from information generated by local or state law enforcement and filtered up to the FBI via intelligence fusion centers 128 To counter violent plots U S law enforcement has employed two tactics that have been described by one scholar as the “Al Capone”129 approach and the use of “agent provocateurs ”130 The 123 Thomas Cincotta “From Movements to Mosques Informants Endanger Democracy ” The Public Eye Summer 2009 http www publiceye org magazine v24n2 movements-to-mosques html Hereafter Cincotta “From Movements to Mosques ” 124 Richard Esposito and Jason Ryan “FBI Has Interviewed 800 Libyans About Terror Threat ” abcnews com April 7 2011 http abcnews go com Blotter fbi-interviewed-800-libyans-terror-threat story id 13321227 125 Justin Blum “FBI Monitoring Possibility of Terrorist Attacks From Libya ” Bloomberg April 6 2011 http www bloomberg com news 2011-04-06 fbi-monitoring-possibility-of-terrorist-attacks-from-libya html This wave of interviews mirrors a 2002-2003 effort by the FBI to interview Iraqis living in America as the Iraq war began See Devlin Barrett “FBI Questioning Libyans ” Wall Street Journal April 5 2011 http online wsj com search term html KEYWORDS DEVLIN BARRETT bylinesearch true 126 Eileen Sullivan and Devlin Barrett “Recent Cases Show Challenge of US Terrorists ” Associated Press cited in abcnews com March 17 2010 http abcnews go com Politics wireStory id 10121734 127 For example the FBI’s Terrorism Financing Operations Section TFOS “coordinates efforts to track and shut down terrorist financing and to exploit financial information in an effort to identify previously unknown terrorist cells and recognize potential activity planning ” Federal Bureau of Investigation Today’s FBI Facts and Figures 2010-2011 http www fbi gov stats-services publications facts-and-figures-2010-2011 facts-and-figures-2010-2011-pdf 128 Dana Priest and William M Arkin “Monitoring America ” Washington Post December 20 2010 http projects washingtonpost com top-secret-america articles monitoring-america Hereafter Priest and Arkin “Monitoring ” For background on state and local fusion centers see CRS Report RL34070 Fusion Centers Issues and Options for Congress by John Rollins 129 Al Capone was a Prohibition-era gang leader engaged in a variety of criminal activities including racketeering bootlegging liquor prostitution and bribery of government officials He was however ultimately arrested and convicted of tax evasion for which he served an 11-year prison sentence 130 Lorenzo Vidino “Homegrown Jihadist Terrorism in the United States A New and Occasional Phenomenon ” Studies in Conflict and Terrorism vol 32 no 1 January 2009 p 13 http pdfserve informaworld com continued Congressional Research Service 19 The Federal Bureau of Investigation and Terrorism Investigations Capone approach involves apprehending individuals linked to terrorist plots on lesser nonterrorism-related offenses such as immigration violations 131 In agent provocateur cases—often called sting operations—government undercover operatives befriend suspects and offer to facilitate their activities As the “Al Capone” moniker suggests historically these tactics have been employed against many types of targets such as mafia bosses white-collar criminals and corrupt public servants While these techniques combined with the cultivation of informants as well as surveillance especially in and around mosques may be effective in stymieing rapidly developing terrorist plots their use has fostered concern within U S Muslim communities 132 The Capone Approach As mentioned the Capone approach involves apprehending individuals linked to terrorist plots on lesser non-terrorism-related offenses such as immigration violations This approach fits within a preventative mode of counterterrorism prosecution 133 Experts have noted that immediately after 9 11 DOJ often leveled lesser charges against terrorist suspects to preemptively squelch potential attacks The author of a 2011 book about the FBI and counterterrorism reported “of the 417 terrorism indictments in the five years after 9 11 … only 143 of the individuals were actually indicted on specific terrorism charges the rest were the result of what then-Attorney General Ashcroft called the ‘spitting-on-the-sidewalks’ approach driver’s license fraud marriage fraud wire fraud immigration violations and the myriad of other lesser charges that served to disrupt potential plots and get suspects off the streets ”134 However according to the Center on Law and Security at New York University School of Law DOJ has moved toward trying suspected terrorists as terrorists instead of leaning heavily on lesser charges “77% of cases between September 11 2009 and September 11 2010 carried terrorism or national security charges an increase of nearly 50% compared to the average over the previous eight years ”135 Regardless the Capone approach is still used in terrorism cases Lying to an FBI Special Agent is a charge reminiscent of the Capone approach 136 A recent example stands out 137 On July 21 2010 Paul Rockwood Jr a U S citizen and Muslim convert pled guilty to making false statements to the FBI Rockwood’s wife Nadia Rockwood also pled guilty to making false statements related to her husband’s case By early 2010 while living in continued 738522_731260637_907926062 pdf 131 See Daveed Gartenstein-Ross and Kyle Dabruzzi “The Al Capone Model of Anti-Terror Policing How Old Tactics are Countering New Threats ” The Weekly Standard April 12 2007 http www weeklystandard com Content Public Articles 000 000 013 495wvpqo asp page 1 132 Paul Vitello and Kirk Semple “Muslims Say F B I Tactics Sow Anger and Fear ” New York Times December 17 2009 http www nytimes com 2009 12 18 us 18muslims html 133 Dan Eggen and Julie Tate “U S Campaign Produces Few Convictions on Terrorism Charges ” Washington Post June 12 2005 http www washingtonpost com wp-dyn content article 2005 06 11 AR2005061100381 html Andrew Adams “FBI’s New Approach Minor Charges Now Stop Terrorism Later ” Lodi News-Sentinel June 17 2005 134 Graff The Threat Matrix pp 420-421 135 The Center on Law and Security New York University School of Law Terrorist Trial Report Card September 11 2001-September 11 2010 p 2 http www lawandsecurity org Portals 0 documents 01_TTRC2010Final1 pdf 136 18 U S C § 1001 137 For additional examples see CRS Report R41416 American Jihadist Terrorism Combating a Complex Threat by Jerome P Bjelopera Congressional Research Service 20 The Federal Bureau of Investigation and Terrorism Investigations King Salmon AK Paul Rockwood had developed a list of 15 people he planned to kill believing that they had desecrated Islam He had also researched explosives and shared with others ideas about mail bombs or using firearms to kill his targets 138 It appears that prosecutors did not pursue a case based on more substantive terrorism charges and opted to neutralize a threat—someone apparently preparing to kill people—by using a false statement charge Lesser charges against a suspect in a terrorism case may also act as a placeholder until evidence to support a more serious charge is gathered The utility of this preventative technique coupled with actual terrorism charges was exhibited by the FBI in its case against Najibullah Zazi He arrived in New York on September 10 2009 with explosive material and plans to detonate bombs in New York’s subway system Zazi feared authorities had caught up with him and returned to Denver on September 12 Between September 10 and 19 the FBI monitored his activities and bolstered its case with searches of a vehicle and locations linked to him in New York and Denver Zazi also agreed to interviews with the FBI in Denver Then on September 19 FBI special agents arrested Zazi in Aurora CO for knowingly and willfully lying to the FBI Presumably this was done because he might flee Four days later a grand jury returned a more substantive one-count indictment against him on weapons of mass destruction charges 139 Agent Provocateur Cases Agent provocateur cases—sting operations—rely on expert determination by law enforcement that a specific individual or group is likely to move beyond radicalized talk and engage in violence or terrorist plotting The ultimate goal is to catch a suspect committing an overt criminal act such as pulling the proverbial trigger but on a dud weapon By engaging in such strategy investigators hope to obtain ironclad evidence against suspects Although an official count of terrorist sting operations is not publicly available the FBI has said that of all the terrorist plots disrupted between 9 11 and the September 2009 Zazi plot to bomb the New York City subway only two plotters were “prepared to move ahead with their plots without the benefit or knowledge of government informants or U S officials ”140 Since 2009 according to The Center for Law and Security at the New York University School of Law the FBI has arrested 41 people on terrorism charges through sting operations 141 An FBI investigation exemplifies this approach On November 26 2010 Mohamed Osman Mohamud was arrested after he attempted to set off what he believed was a vehicle bomb at an annual Christmas tree lighting ceremony in Portland OR Mohamud thought he had plotted with 138 DOJ Press Release “Alaska Man Pleads Guilty to Making False Statements in Domestic Terrorism Investigation Spouse Pleads Guilty to Making False Statements ” July 21 2010 http www fbi gov anchorage press-releases 2010 ak072110 htm Colleen Kelly “Alaskan Couple in Domestic Terrorism Plot Sentenced ” ktva com Anchorage AK August 23 2010 http www ktva com alaskanews ci_15870578 source rss 139 U S Department of Justice “Najibullah Zazi Pleads Guilty to Conspiracy to Use Explosives Against Persons or Property in U S Conspiracy to Murder Abroad and Providing Material Support to Al-Qaeda ” press release February 22 2010 http www justice gov opa pr 2010 February 10-ag-174 html Nicole Vap “Timeline of Terror Plot Investigation ” KUSA TV NBC affiliate September 2009 http www 9news com news specials terrorplot article aspx storyid 123658 catid 207 140 Graff The Threat Matrix p 574 For a description of known sting operations among the post-9 11 homegrown jihadist terrorism plots see CRS Report R41416 American Jihadist Terrorism Combating a Complex Threat by Jerome P Bjelopera Appendix A 141 Quoted in Basil Katz “New York Bomb Plot Four Ask Judge to Dismiss Charges ” Reuters March 24 2011 http www reuters com article 2011 03 25 us-security-newyork-plot-idUSTRE72O0CC20110325 Congressional Research Service 21 The Federal Bureau of Investigation and Terrorism Investigations terrorists to detonate the bomb In actuality the device was a dud assembled by his coconspirators who were FBI undercover operatives Mohamud offered the target for the strike provided components for assembly of the device gave instructions for the operation and mailed passport photographs for his getaway plan to FBI undercover operatives 142 What specifically caused the FBI to begin its sting operation against Mohamud is unclear from publicly available sources At some point someone from the local Muslim community alerted the FBI to Mohamud a 19-year-old Somali-born naturalized U S citizen Media reports have suggested that a family member perhaps Mohamud’s father relayed concerns about the young man to officials 143 In a number of recent FBI terrorism sting operations defense attorneys have alleged that the FBI had entrapped defendants 144 Ten defendants charged with terrorism-related crimes have formally argued the entrapment defense in six trials since 9 11 145 However since 9 11 this defense has been unsuccessful in federal courts 146 FBI Director Mueller and Attorney General Holder have described the use of sting operations as “essential” to terrorism prevention 147 Mueller has emphasized that the FBI is careful in its undercover investigative work arguing that the agency performs “substantial oversight” of the techniques used in these cases 148 In at least some investigations FBI undercover employees test suspects to ascertain the depth of their intent to do harm For example the FBI evaluated Mohamud’s resolve on a number of occasions Two stand out Mohamud’s first meeting with an undercover FBI operative entailed a discussion in which the would-be violent jihadist was told that he could help “the cause” in “a 142 U S Department of Justice “Oregon Resident Arrested in Plot to Bomb Christmas Tree Lighting Ceremony in Portland ” press release November 27 2010 http portland fbi gov dojpressrel pressrel10 pd112610 htm 143 Caryn Brooks “Portland’s Bomb Plot Who Is Mohamed Mohamud ” November 28 2010 TIME Magazine http www time com time nation article 0 8599 2033372 00 html 144 In criminal law a person is “entrapped” when he is induced or persuaded by law enforcement officers or their agents to commit a crime that he had no previous intent to commit A defendant who is subject to entrapment may not be convicted as a matter of public policy However there is no entrapment where a person is ready and willing to break the law and the government agents merely provide what appears to be a favorable opportunity for the person to commit the crime Merely providing an opportunity to commit a crime is not entrapment In order to find entrapment there must be persuasion to commit a crime by the entrapping party Entrapment is an affirmative defense in which the defendant has the burden of proof It excuses a criminal defendant from liability for crimes proved to have been induced by certain governmental persuasion or deceit To claim inducement a defendant must demonstrate that the government conduct created a situation in which an otherwise law-abiding citizen would commit an offense The defendant must show that he or she was unduly persuaded threatened coerced harassed or offered pleas based on sympathy or friendship by police See Legal Definitions and Legal Terms Dictionary U S Legal Forms Inc http definitions uslegal com e entrapment See also William Yardley “Entrapment is Argued in Defense of Suspect ” New York Times November 29 2010 http www nytimes com 2010 11 30 us 30mohamud html Chris Herring “Bomb Case Bail Hearing ” The Wall Street Journal June 22 2010 http online wsj com article SB10001424052748704256304575321131297175098 html mod WSJ_hpp_sections_newyork A G Sulzberger “Defense Cites Entrapment in Terror Case ” New York Times March 17 2010 http www nytimes com 2010 03 18 nyregion 18newburgh html Carol J Williams “A Case of Terror or Entrapment ” Los Angeles Times November 30 2007 http articles latimes com 2007 nov 30 nation na-liberty30 Michael Wilson “Jury Convicts 2 Albany Men in Missile Sting ” New York Times October 11 2006 http www nytimes com 2006 10 11 nyregion 11plot html 145 The Center on Law and Security New York University School of Law TTRC Update Informant Cases and the Entrapment Defense March 2011 Hereafter Center on Law and Security March 2011 146 Nardine Saad “FBI Director Robert S Mueller III in O C Denies Sting Operations Aimed at Terrorists Are Entrapment ” Los Angeles Times http latimesblogs latimes com lanow 2011 01 fbi-director-robert-s-mueller-iii-in-ocdenies-sting-operations-aimed-at-terrorists-are-entrapment html Hereafter Saad “FBI Director ” 147 Ibid Malia Wollan and Charlie Savage “Holder Calls Terrorism Sting Operations ‘Essential ’” New York Times December 11 2010 http www nytimes com 2010 12 12 us politics 12holder-1 html 148 Saad “FBI Director ” Congressional Research Service 22 The Federal Bureau of Investigation and Terrorism Investigations number of ways … ranging from simply praying five times a day to becoming a martyr ” The young man responded saying that he wanted to become “operational” and needed help in staging an attack When Mohamud suggested the Christmas tree lighting ceremony as his intended target in a following meeting an FBI undercover employee noted that children attend such events Mohamud responded by saying that he wanted a large crowd “that will … be attacked in their own element with their families celebrating the holidays ”149 Balancing Civil Liberties against Terrorism Prevention As discussed the FBI’s DIOG articulates a need to proactively gather intelligence in counterterrorism investigations and establishes the assessment as a technique to do so Balancing civil liberties against the need for preventative policing to combat terrorism is a key policy challenge The notion of balancing civil liberties against security requirements is not new In 1976 the United States Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities commonly referred to as the Church Committee after its chair Senator Frank Church noted as much in its investigation of domestic intelligence abuses A tension between order and liberty is inevitable in any society A Government must protect its citizens from those bent on engaging in violence and criminal behavior or in espionage and other hostile foreign intelligence activity … Intelligence work has at times successfully prevented dangerous and abhorrent acts such as bombings and foreign spying and aided in the prosecution of those responsible for such acts Figure 1 Balancing Civil Liberties Concerns and Security Perceived threat oiv • 4- -----lc------ high Security Terrorism Prevention Efforts Source CRS But intelligence activity in the past decades has all too often exceeded the restraints on the exercise of governmental power that are imposed by our country’s Constitution laws and traditions 150 149 Ibid United States v Mohamed Osman Mohamud Criminal Complaint U S District Court for the District of Oregon November 26 2010 p 2 http media oregonlive com portland_impact other USAFFIDAVIT pdf 150 Church Committee Book II p 2 Congressional Research Service 23 The Federal Bureau of Investigation and Terrorism Investigations Figure 1 suggests how competing elements influence the balance between civil liberties and security—largely defined today in terms of terrorism prevention efforts As an historical example the FBI had developed intrusive domestic intelligence collection measures and counter-radical operations stretching from the late 1930s through the 1960s Of course the focus of the FBI’s efforts in this period was not COINTELPRO counterterrorism These decades Prior to 1976 national security investigations at the FBI followed featured domestic security concerns no specific guidelines established by either DOJ or Congress during World War II and fears of Without oversight the agency developed a covert espionage and communist infiltration of Counterintelligence Program COINTELPRO to target the Communist Party U S A 1 During its lifespan from 1956 to 1971 American institutions during the Cold the program involved aggressive and illegal tactics to harass War The FBI worked to prevent this disrupt discredit and collect intelligence on the party and its activity For much of this period a members COINTELPRO’s purpose was to protect national national consensus suggested that security prevent violence and maintain the social and political serious threats were posed by foreign order in the United States 1 It was not designed to build traditional cases to be brought to trial The FBI expanded agents revolutionaries or outside COINTELPRO to target groups and movements such as the agitators operating in the United States Socialist Workers Party the Ku Klux Klan the New Left and the Within this context the FBI had broad Black Panther Party 1 The program was developed partly because authority for investigation of and the FBI was frustrated with Supreme Court limits on overt investigations of dissident groups 1 intelligence collection regarding domestic subversive activity from With COINTELPRO the FBI “took the law into its own hands”1 Presidents Harry S Truman and and authorized questionable methods including “use of subterfuge plant ing agents provocateurs and leak ing Dwight D Eisenhower and Attorney 151 derogatory information to the press ”1 Among specific tactics the General Robert F Kennedy The FBI mailed anonymous letters to break up marriages contacted agency developed a number of employers to get people fired from their jobs and falsely programs to combat what it saw as declaimed individuals as government informants to discredit them internal threats within their own organizations 1 The agency even targeted some nonviolent organizations such as the Southern Christian Leadership Conference because it “believed they represented a During this period the FBI engaged in ‘potential for violence ’”1 As the FBI itself acknowledges some what can be described as preventive COINTELPRO methods were excessive and “went too far for covert intelligence-based efforts to the American people ”1 target and contain people groups or The public first learned of the program after a 1971 burglary at movements suspected by the agency to an FBI office in Media PA Individuals tied to the incident leaked be ‘“rabble rousers ’ ‘agitators ’ ‘key information on COINTELPRO to the press and Congress In activists ’ or ‘key black extremists ’”152 response the FBI terminated the program 1 A hallmark was the agency’s Counterintelligence Program COINTELPRO which lasted from 1956 to 1971 Subjects investigated by the FBI under its domestic intelligence programs did not have to be suspected of criminal activity Instead of bringing criminal cases to court the Bureau acted outside of legal processes and relied on illegal means to curb constitutionally protected activity it deemed threatening to national security 153 By the 1970s as Cold War fears ebbed the balance between civil liberties and prevention tipped in the other direction—favoring concerns over civil liberties This is highlighted by the development of the original set of Attorney General guidelines Issued in 1976 and known as the Domestic Security Investigation Guidelines these responded to FBI abuses embodied in programs 151 Church Committee Book II p 39 Church Committee Book II pp 40 69 153 Ibid Church Committee Book III pp 211-212 152 Congressional Research Service 24 The Federal Bureau of Investigation and Terrorism Investigations such as COINTELPRO These first guidelines were intended to prevent the FBI’s monitoring of groups that had unpopular or controversial public views and greatly circumscribed the agency’s domestic intelligence gathering capabilities and investigations related to national security-related issues 154 Since the 1976 guidelines and especially after 9 11 the balance has shifted in favor of security and terrorism prevention efforts As suggested the Mukasey Guidelines and FBI DIOG offer more investigative flexibility to proactively counter terrorist actors Critics have stated that subsequent guidelines have excessively loosened the constraints on FBI intelligence collection and investigation 155 In essence these critics suggest that concerns over terrorism and security have outweighed fears of systemic abuse by investigators Philadelphia Inquirer reporter and author Stephan Salisbury describes current efforts at striking this balance as the “bind” the FBI finds itself in “On one hand it is being charged by the Justice Department to go out and stop this stuff terrorism before it happens But on the other it is getting criticized for the techniques it is using to do that ”156 The Mukasey Guidelines and FBI DIOG address the same competing forces and as mentioned their implementation has spurred concerns among civil liberties groups Considerations for Congress Since 9 11 the FBI has been given substantially greater resources to enhance its counterterrorism activities—particularly its intelligence operations 157 The Bureau over the last decade has also introduced a series of reforms intended to transform it from a largely reactive law enforcement agency focused on criminal investigations into a more proactive agile flexible and intelligencedriven organization In its oversight role Congress may wish to examine the extent to which intelligence has been integrated into FBI operations to support its counterterrorism mission and the progress the Bureau has made on its intelligence reform initiatives Congress may also wish to explore the extent to which the FBI has enhanced its collaboration with the Department of Homeland Security other federal partners and state and local law enforcement elements This is not just an issue of information sharing but of how the Bureau has institutionalized its collaboration in order to tackle complex threats Finally Congress might ask how the FBI uses strategic intelligence to develop a true understanding of security threats and how they are evolving In other words has the Bureau developed effective predictive capacity FBI intelligence reforms since 9 11 have met with a mixed response Among its intelligence initiatives since 9 11 the FBI has increased its intelligence focus by creating a Directorate of Intelligence and hiring thousands of new and better-qualified analysts Another innovation was 154 Berman Domestic Intelligence p 11 Berman Domestic Intelligence p 13 156 Stephan Salisbury “Leather Glove ” audio interview tomdispatch com July 5 2010 http tomdispatch blogspot com 2010 07 leather-glove html Hereafter Salisbury “Leather Glove ” 157 The FY2012 budget request for the FBI proposes $131 5 million for new or expanded initiatives and 181 new positions including 81 special agents three intelligence analysts and 97 professional staff See Mueller Testimony April 6 2011 155 Congressional Research Service 25 The Federal Bureau of Investigation and Terrorism Investigations the establishment of Field Intelligence Groups FIG that are embedded into each of the FBI’s 56 field offices The FBI says that the FIGs are responsible for coordinating managing and executing all the functions of the intelligence cycle In April 2011 Director Mueller testified that “the FBI recently restructured its FIGs where each group now has clearly defined requirements for intelligence collection use and production With this new structure each office can better identify assess and attack emerging threats ”158 Yet as the Senate Homeland Security and Governmental Affairs Committee HSGAC investigation into the Fort Hood shootings highlighted questions remain about the extent to which intelligence has been effectively integrated into FBI investigative operations According to the Senate HSGAC’s report A Ticking Time Bomb In the Hasan case the FBI did not effectively utilize intelligence analysts who could have provided a different perspective given the evidence that it had The FBI ‘s inquiry focused narrowly on whether Hasan was engaged in terrorist activity - as opposed to whether he was radicalizing to violent Islamist extremism and whether this radicalization might pose counterintelligence or other threats e g Hasan might spy for the Taliban if he was deployed to Afghanistan This critical mistake may have been avoided if intelligence analysts were appropriately engaged in the inquiry 159 Congress may wish to examine the extent to which analysts at the FIGs have access to case information about specific Joint Terrorism Task Force JTTF investigations and the opportunity to provide relevant intelligence to help steer those investigations The FBI Intelligence Analysts Association has stated that analysts at the FBI continue to be relegated to “support” roles160 i e they react to direction from special agents rather than being full partners in an intelligence-driven investigative operation They argue that intelligence analysts should have professional parity with special agents to rapidly reform the FBI’s institutional culture Congress may also wish to explore the extent to which intelligence analysts outside the FIGs such as those within the Directorate of Intelligence at Headquarters also have access to case information about specific JTTF investigations and have the opportunity to provide relevant intelligence for those investigations According to the Senate HSGAC report In the Hasan case two JTTFs each located in a different field office disputed the significance of Hasan’s communications with the Suspected Terrorist and how vigorously he should be investigated The JTTF that was less concerned about Hasan controlled the inquiry and ended it prematurely after an insufficient examination Two key headquarters units - the Counterterrorism Division the “National JTTF” which was created specifically to be the hub among JTTFs and the Directorate of Intelligence were not made aware of the dispute This unresolved conflict raises concerns that despite the more assertive role that FBI headquarters now plays especially since 9 11 in what historically has been a decentralized organization field offices still prize and protect their autonomy from headquarters FBI headquarters also does not have a written plan that articulates the division of labor and hierarchy of command-and-control authorities among its headquarters units field offices and the JTTFs 161 158 Mueller Testimony April 6 2011 A Ticking Time Bomb p 10 160 FBI Intelligence Analysts Association Intel Shift “Needs To” Happen February 26 2010 161 A Ticking Time Bomb p 10 159 Congressional Research Service 26 The Federal Bureau of Investigation and Terrorism Investigations Insight by Directorate of Intelligence DI analysts into JTTF cases would enable the DI to provide national intelligence community-level support to help guide those cases It would also facilitate DI analysis of the overall domestic terrorism threat so it can provide strategic context to the FBI leadership and other policy makers Finally the FBI has greatly increased its production of intelligence products As noted earlier in 2010 the Bureau produced over 25 000 intelligence reports on counterintelligence counterterrorism and criminal topics as well as information related to cyber issues and weapons of mass destruction 162 It may be of oversight interest to Congress to examine the value of these reports their accessibility within the intelligence and law enforcement communities and the views of various consumers about them Author Contact Information Jerome P Bjelopera Specialist in Organized Crime and Terrorism jbjelopera@crs loc gov 7-0622 Acknowledgments Mark A Randol former CRS Specialist in Domestic Intelligence and Counter-Terrorism was originally a co-author of this report 162 FBI Information p 22 Congressional Research Service 27