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Domestic spying vs. secret police

The FBI has new powers to conduct domestic surveillance that some liken to a burgeoning “secret police” agency. Part III of a series.
/ Source: An Special Report

It should have been a great news day for the FBI, the kind that finds the agency director, Robert Mueller, beaming on the evening news about the competence and foresight his agents showed in bringing down one of the most vicious terrorist organizations on the planet. On Aug. 7, based solely on the testimony of an FBI informant who bravely infiltrated the group, a court in Dublin, Ireland, convicted Michael McKevitt, the leader of the Real IRA, responsible for the 1998 bombing at Omagh, Northern Ireland, that killed 29 people.

But the FBI director chose not to emphasize the story and he did not appear in any of the day’s coverage. Nor was the achievement — recruiting and training an American businessman to pose as a dimwitted Irish-American gunrunner — heralded on the FBI’s Web site as an example of what the agency can achieve in its undercover operations.

“The agency doesn’t want to trumpet this case,” says an American law enforcement official involved in it. “Look, they’ve been going around saying they couldn’t infiltrate al-Qaida because of legal constraints and other issues. Now, this shows that all the while they were doing exactly to the Real IRA what they should have been doing to al-Qaida. That’s a dot they don’t want anyone connecting.”

Among the many agencies singled out for criticism after 9/11, the FBI arguably has occupied the hottest of the hot seats and has been on the receiving end of some of the harshest — and some say, most unfair — criticism.

Pat D’Amuro, who ran the FBI’s counter-terrorism division until he took over its New York field office in July, says the IRA case is a good example of the latter.

“Yes, sure, this shows it can work, but development of the sources is not an easy thing to do,” he says. “When you talk about al-Qaida, one thing they did very well was compartmentalize issues to the point where a lot of top people associated with al-Qaida didn’t even know about Sept. 11. So, in that sense, it is not a fair criticism.”

For the past two years, Mueller and top agents like D’Amuro have been peppered by such criticism. By last summer, when it became clear that several leads developed in FBI field offices that might have uncovered the 9/11 plot were not acted on, Mueller conceded that “I cannot say for sure that there wasn’t a possibility we could have come across some lead that would have led us to the hijackers.”

Conflicting demands
Since then, changes have accelerated as the FBI has been subject to conflicting demands that it change the way it does business, revamp its technology and take on new domestic surveillance powers — all at a time when other bureaucracies, from the CIA to the Pentagon to the new Department of Homeland Security, have circled overhead eager to pick off tasks traditionally performed by the bureau.

But the ground keeps shifting. As Mueller retooled the agency to make counter-terrorism its absolute priority, for instance, the Bush administration and Congress fought over who should lead the effort, with the White House championing the CIA and Congress preferring its own creation, the new Department of Homeland Security.

No one, it seemed, took the position that FBI should continue as the lead agency. In January, the White House created a new office — the Terrorist Threat Integration Center (TTIC) — led by a CIA officer and housed at the CIA’s headquarters.

“Would I rather have seen it in FBI?” asks D’Amuro, who ran FBI’s counter-terrorism and counterintelligence division until July. “Yeah, but one of the areas the bureau still has to work very hard is on increasing and building its the cadre of analysts. We didn’t have the number of professional analysts at the time to run TTIC.”

Civil rights concerns
More controversial, still, were the new powers granted FBI under the USA Patriot Act, passed in November 2001, including powers to spy on American citizens, which were taboo since the days when J. Edgar Hoover’s FBI kept tabs on his friends’ political enemies or other “troublemakers.”

To some people, from conservative politicians to civil libertarians and former law enforcement officials, licensing any federal body to spy on Americans risks undermining the Constitution. In July, the House passed an amendment to the Patriot Act sponsored by a Republican, Rep. C.L. “Butch” Otter of Idaho, that would scale back law enforcement’s ability to go on “fishing expeditions” in libraries, on the Internet or using phone or bank records without reporting these activities to the subject of the investigation. The amendment would have to be taken up by the Senate as well to go into effect.

“How much are we willing to change in response to 9/11 attack, to tolerate being watched, our information being joined into databases that create a whole new picture of person that didn’t exist before, how much should we accept authorities pushing, probing and demanding?” asks Jim Gilmore, former Virginia governor and leader of a panel investigating these issues on behalf of the Bush administration. “If the enemy’s going to force us to change what we are as Americans, we should do it with our eyes opened. As a conservative Republican, I’m deeply concerned about this.”

In a letter accompanying his commission’s most recent report last December, Gilmore wrote that it is “important to separate the intelligence collection function from the law enforcement function to avoid the impression that the U.S. is establishing a kind of ‘secret police.’”

While Gilmore says he personally believes the FBI can balance the need for domestic intelligence with the rights of citizens, the commission as a whole, made up of a wide range of civilian and military law enforcement and security experts, saw the need to create a separate agency. One often-cited model: Britain’s MI5, which has the power to investigate virtually anyone in the United Kingdom, but cannot make an arrest or take other action without consulting other law enforcement agencies.

So far, that kind of drastic move has not found wide support in the Bush administration. But that has not halted the criticism nor the lobbying for other powers to be taken away from the bureau.

“FBI has a long way to go,” says Sen. Richard Shelby, a Republican from Alabama and former chairman of the Senate Intelligence Committee. “They come to their job with all the constraints of the legal system, including a tendency to worry about acting on information for fear that it won’t stand up in court. We’re asking them to become an intelligence agency like [Britain’s] MI5. They’re trying and trying hard, but it might be a couple more years before we can truly judge.”

D’Amuro says the FBI’s propensity to view information as potential evidence that needs to be able to stand up in court, while viewed as a problem by critics like Shelby, actually creates a natural brake on potential civil rights violations that might not exist in a new, domestic spy agency. “That’s the beauty of what FBI can do, investigate, in a legal fashion, controlled and monitored by [Congressional] oversight committees.”

‘Law enforcement culture'
But can FBI agents accustomed to building meticulous criminal conspiracy cases operate within the law and still identify potential terrorist cells and move against them before they can strike? Skeptics say no.

Among them is Gen. Brent Scowcroft, national security adviser in the first Bush administration and currently the head of Bush’s Foreign Intelligence Advisory Board. Scowcroft has proposed creating a division within the FBI to run domestic intelligence with its own separate career path. This approach, the argument goes, would quarantine it from the FBI’s cautious law enforcement culture and keep information garnered in terrorist investigations — where the bar for things like phone taps is far lower — from being used to prosecute otherwise innocent Americans for, say, tax evasion.

“They’ve got to get this division out of the J. Edgar Hoover building,” says former Sen. Gary Hart, a Democrat who chaired several panels on the lessons of 9/11. “It sounds crazy but it’s very, very important. Where people sit has a lot to do with how they look at the world. FBI has to recruit young 21-, 22-, 25-year olds who understand their job differently than an FBI agent, who understand the dilemmas and how to be aggressive without stepping on the Constitution. It should have happened two years ago, and I think that’s two years wasted.”

Dick Thornburgh, who was attorney general during the Reagan administration and first Bush administration, is an adviser to Mueller on FBI reorganization. He says the conflicts being set up by the expansion of investigative powers will require far more explanation by government if problems are going to be avoided.

“Neither the public nor agencies involved are prepared to deal with these things,” he says.

Thornburgh says it will take a long time for many Americans, who remember the abuses of the Nixon era and before, to build up the degree of trust needed to allow law enforcement agents or spies to make snap judgements on issues of constitutional rights.

“We Americans are basically suspicious of anyone in those callings,” he says. “It’s a built-in characteristic of our national character, and I think it is going to take a real effort to earn public confidence.”