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Worried about free speech, FBI never issued intelligence bulletin about possible Capitol violence

The lack of an intelligence bulletin left agencies like the Capitol Police without the full picture of what the FBI had learned about what extremists were saying.
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Shattered glass in the doors leading to the Capitol Rotunda on Tuesday.J. Scott Applewhite / AP

WASHINGTON — FBI intelligence analysts gathered information about possible violence involving the U.S. Capitol on Jan. 6., but the FBI never distributed a formal intelligence bulletin, in part because of concerns that doing so might have run afoul of free speech protections, a current and two former senior FBI officials familiar with the matter told NBC News.

While the FBI did share some threat intelligence with law enforcement agencies, the lack of a comprehensive Joint Intelligence Bulletin compiled by the FBI's Intelligence Branch — which would have made assessments about possible threats and would have been shared with relevant law enforcement agencies — left the Capitol Police and other agencies lacking the full picture of what the FBI had learned from human sources and social media postings about what extremists were saying about plans to assault the Capitol.

The former officials said the reluctance to distribute such a document highlighted a long-standing dilemma under which the FBI has been reticent about circulating intelligence related to far-right or far-left domestic terrorism while regularly issuing bulletins about threats from violent Americans who have adopted the ideology of Al Qaeda or the Islamic State terrorist group, also known as ISIS.

"For every major event in D.C., and even sporting events like the World Series, they produce a Special Event Bulletin," a former FBI analyst said, noting that the document is also known as a Joint Intelligence Bulletin. A second former FBI official said it didn't happen this time because of concerns that the material FBI analysts were examining on social media amounted to protected free speech.

The disparate treatment of domestic terrorism goes beyond intelligence, the officials said. When there is a major event in Washington, major international terrorism "subjects" are put under 24/7 FBI surveillance "to ensure they don't try to do anything during the event," the former analyst said. "Nothing like that happens for domestic terrorism subjects."

While threatening violence isn't protected speech under the First Amendment, the line between protected speech and threats can be hard to discern. Because Al Qaeda and ISIS are designated terrorist organizations under the law, the FBI feels more free to disseminate intelligence about Americans linked to them in any way. There are no designations for domestic terrorist groups.

A senior FBI official confirmed that the FBI did have indications that extremists were calling for violent action at the Capitol on Jan. 6 but felt constrained from sharing some of the information because of First Amendment concerns.

Asked about that, a second senior FBI official confirmed that no intelligence bulletin was published but didn't speak about whether there had been a debate about publishing one.

The head of the FBI's Washington field office, Steven D'Antuono, had told reporters Friday that the FBI had no intelligence suggesting that violence was brewing before Jan. 6. He reversed himself in a briefing to reporters Tuesday, acknowledging that the bureau did, in fact, have some intelligence. The FBI identified extremists who intended to travel to Washington and sought to stop them, he said, confirming a story first reported Sunday by NBC News.

He said some information about possible violence, gleaned from social media and human sources, was shared with members of a D.C.-area law enforcement group known as the Joint Terrorism Task Force, which includes Washington's Metropolitan Police Department and U.S. Capitol Police.

"This information was immediately disseminated through a written product and briefed through our command operations to all levels of law enforcement," he said.

The current and former officials familiar with the matter said the "written product" wasn't a formal intelligence bulletin.

D'Antuono didn't describe the information the FBI gathered and shared, and NBC News didn't have access to the specific details of the other intelligence that FBI analysts wanted to circulate. In recent days, social media posts have emerged making it clear that far-right groups had been planning an invasion of the Capitol for some time, including coordinating travel and posting photos of weapons people planned to take with them. But Capitol Police were unprepared for such an organized onslaught, said the agency's former chief, who was forced out after the debacle.

The Washington Post reported Tuesday that the FBI's field office in Norfolk, Virginia, circulated a report the day before the riot warning that extremists were heading to Washington to wage "war."

D'Antuono described the information from Norfolk as relating to "a thread on a message board" that wasn't attributed to a specific person. He said that when his office received the information, "we briefed that within 40 minutes to our federal and state law enforcement partners in our command post." He said it was entered into the D.C. Joint Terrorism Task Force system and shared with the FBI's law enforcement partners through that process.

Several news organizations, including NBC News, published stories before Jan. 6 that reported on calls by extremists to march on and occupy the Capitol. Some of those social media postings included talk of violence.

On Friday, NBC News reported that on the fringe message board 8kun, which is popular with QAnon followers, users talked for weeks about a siege of the Capitol, some speaking about it like a foregone conclusion.

"You can go to Washington on Jan 6 and help storm the Capital," an 8kun user said a day before the siege. "As many Patriots as can be. We will storm the government buildings, kill cops, kill security guards, kill federal employees and agents, and demand a recount."

Some experts say the lack of a domestic terrorism statute constrains the FBI from treating far-right and far-left groups the same as Americans who are radicalized to violence by Al Qaeda or ISIS ideology. But the two former FBI officials who spoke Tuesday argued that the bureau is being overly cautious and that it has simply not dedicated the resources required to tackle the domestic threat.

It's clear, however, that in the wake of the Jan. 6 riot, the FBI has been leaning forward. On Monday, an FBI memo warned about the threat of armed protests at all 50 state capitols starting Saturday and disclosed that an armed group has threatened to travel to Washington to stage an uprising if Congress removes President Donald Trump from office, a senior law enforcement official said.

But law enforcement officials cautioned that the memo didn't mean they expect violence in every state capitol. The FBI simply felt the duty to warn.