With the announcement that James B. Comey will be nominated by President Barack Obama to replace Robert W. Mueller III as the director of the FBI, a modern era will soon come to an end. Mueller has served longer (12 years) as FBI director than anyone since J. Edgar Hoover. He is the first person to complete a full term as director since Hoover’s tumultuous and controversial 48-year reign, and the imposition of a 10-year term limit by Congress in 1976. While the public and the press generally laud Mueller for his achievements at the FBI, his own agency has a more conflicted view.
Mueller was appointed by President George W. Bush to replace Louis Freeh just days before 9/11, and was a bit like a raw recruit the first time he witnessed combat in the stressful period that followed the attack. He was little heard or seen in the field as he allowed Deputy Director Tom Pickard to lead the daily all-office conference calls and manage the initial stages of the TRADEBOM and PENTBOM cases, as the investigations into the World Trade Center and Pentagon attacks were known. Mueller soon found his voice, however, and set about ensuring that the FBI was protected from the wolves that were circling the bureau, sniffing the blood of blame and recrimination for the 2,977 innocent victims. The wolves were bent on dismantling and destroying the organization that allowed 19 Saudi terrorists to live among us for so long, essentially unnoticed. The FBI was described as having precipitated an intelligence failure of epic proportions.
Mueller eventually prevailed over his detractors, and he satisfied the FBI’s numerous 9/11 critics by creating the National Security Branch, an Intelligence Division, a Cyber Division, and reprogramming thousands of FBI agents from criminal work into counterterrorism and intelligence analysis. He personally initiated one of those grand paradigm shifts in government that academics and historians build careers around analyzing and evaluating. There is no doubt that Director Mueller is held in the highest esteem by local law enforcement, Congress, and the general public; he will go down in history as one of the FBI’s greatest directors.
Within the FBI, however, there are at least two divergent views of Mueller’s legacy. The first is that Mueller saved the FBI from being broken up into its component parts amid the 9/11 Commission’s call to create a new domestic intelligence agency to address counterterrorism. For that political feat he is a hero to a great many current and former agents — certainly to the more than 50 percent of FBI agents who have joined the bureau since 2001, many specifically to fight terrorism. Most of them have spent their entire careers working counterterrorism or intelligence matters, however, and they have no experience with the criminal investigative organization that was the pre-9/11 FBI. Theirs is a world of terrorism leads, assessments, preliminary investigations, national security letters, FISA intercepts, and the occasional undercover operation targeting a self-directed domestic terrorist.
Much like the way the FBI shifted in the 1940s from fighting bank robbery and gangster crime to fighting Nazis and catching Communist spies during the Cold War, the modern FBI became all counterterrorism, all intelligence, all the time, after the 9/11 attacks. Mueller effectively transformed the FBI into the intelligence agency that his critics always wanted it to be
To effect this great change, Mueller mandated that the FBI would leave no counterterrorism leads unaddressed, at a time when the amount of unaddressed work in FBI files was a standard by which field office manpower needs were documented. At the direction of President Bush, Mueller ordered this focus on prevention — at the expense, if need be, of prosecution. He shifted the internal and external legacy of the FBI agent from that of a hard-nosed, cigar-smoking, tough-guy criminal investigator, to one of desk-bound, egghead intelligence collector, perusing open and classified sources for leads and tips — an FBI agent whose job it was to collate and analyze information about terrorism, not just to investigate federal crimes.
But there is another view of Mueller’s legacy. The shift to an intelligence agency was dramatic and disheartening to those who had joined the bureau under other former directors, particularly Louis Freeh, to investigate gangs, organized crime, and international cartels — and actually put people in jail. It was now clear to them that being part of an intelligence agency was not the same as being a member of the world’s premier law enforcement agency.
Many senior agents view the changes with a jaundiced eye. In a nutshell, here’s what a lot of current agents think: The focus on intelligence for intelligence’s sake has been detrimental to the FBI, particularly within the criminal program. You can gather all the intelligence you want and “know your domain,” but if you don’t have the agents to act on the intelligence, or don’t want to act on criminal intelligence, it’s useless. Many outside the FBI do not understand that, unlike within the national security and intelligence communities, there is no system to easily disseminate criminal intelligence to other law enforcement agencies. So criminal evidence is often collected, reported, analyzed, and then filed away.
Senior agents complain about the increase in the administrative burden that accompanied the shift to intelligence gathering: Intelligence reporting requirements often take away from the time necessary to build a case for prosecution. Instead, agents now spend their valuable investigative time entering evidence into computer systems, making their own copies, logging vehicle mileage, running records checks, and in general doing their own administrative support with no clerical assistance. “Support” positions have given way to intelligence analysis positions to track an al Qaeda threat that President Obama says is severely diminished and may no longer exist domestically. As one senior agent said to me, “If they want to pay a 20-year agent with an advanced degree and national criminal expertise to move file boxes and make copies of case files, who am I to complain?” All of this, however, makes the FBI far less efficient.
Others noted the shift away from the law enforcement model to a corporate model. Internal FBI directives now come out as corporate policy. Outsiders like McKinsey Consulting and its 23-year-old Harvard MBAs were brought in to tell senior FBI agents how to transform themselves and work more efficiently. Learning Lean Six Sigma and earning your business black belt became more important than catching bad guys. The FBI’s own Domestic Investigations and Operations Guide and other policy implementation guides (PIGs) have become overly burdensome to follow and impossible to commit to memory. For example, the PIG regarding the use of bureau vehicles is over 40 pages long, when all it really needs to say is, “Bureau vehicles are for official use only.”
In addition to the corporate transition, current street agents complain that the shift to intelligence work has made senior FBI officials perceive the bureau’s analytical model as superior to the investigative model. Analysts are given more respect, particularly at FBI headquarters, where the influx of senior staff from within the U.S. intelligence community are given deference over those who carry guns, take risks (both with their lives and liability), are injured on duty, and ultimately collect the intelligence that the analysts regurgitate into reports for field agents. These are the views of the agents in the streets and are based on conversations with them about the direction of the FBI.
As I write these words, I can already hear the disagreement from my colleagues and friends within the intelligence community, who will argue that my comments re-enforce the need for a separate agency to conduct domestic intelligence collection. But my argument is not about the need for analysts, but rather about how they are used in the bureau to the detriment of investigators, particularly within the criminal programs. When you try and create an animal by committee, you end up with a camel. That is what the FBI has become under Mueller … a law-enforcement camel.
Currently, the FBI’s top investigative priorities, in order, are:
Protect the United States from terrorist attacks;
Protect the United States against foreign intelligence operations and espionage;
Protect the United States against cyber-based attacks and high-technology crimes;
Combat public corruption at all levels;
Protect civil rights;
Combat transnational/national criminal organizations and enterprises;
Combat major white-collar crime;
Combat significant violent crime.
As you can see from this list, combating major white-collar and significant violent crime is now the FBI’s lowest investigative priority.
In my personal opinion, one of Mueller’s major failings during his 12-year tenure has been ignoring the threat to national security that systemic mortgage fraud by banking insiders posed to the United States. The FBI basically ignored systemic financial institution fraud of major proportions. While many threats are often bandied about as a danger to national security, the near collapse of the housing industry through sub-prime lending and the securitization of mortgages almost resulted in a total failure of the banking industry. Without the intervention by Congress and the bailout of numerous banks “too big to fail,” the United States — and possibly the world — would have experienced catastrophic consequences.
According to a report by the Seattle Post Intelligencer in 2007, this occured because the FBI “dramatically cut its number of white-collar crime investigations, including mortgage fraud, after shifting about 2,400 agents from traditional crime-fighting squads to counterterrorism units in the wake of the 2001 terrorist attacks.” The Post Intelligencer further reported that “the FBI was aware for years of ‘pervasive and growing’ fraud in the mortgage industry that eventually contributed to America’s financial meltdown, but it did not take definitive action to stop it.” The Bush administration later rejected FBI pleas for more agents to investigate mortgage fraud. “We have to prevent another 9/11-type surprise attack,” agents were told by Bureau officials. Transfers to counterterrorism prevented the FBI from understanding how bad mortgages were packaged into bad securities, creating a widespread impact that weakened the greater economy.
What then occurred was that FBI staffing issues after 9/11 led to white-collar criminals escaping prosecution and punishment in financial institution fraud cases involving billions of dollars. For example, the collapse of Washington Mutual Bank, which was the largest savings and loan institution in the United States until its collapse in 2008, due to horribly flawed sub-prime lending practices, resulted in no one in bank executive management (who had pledged to make WaMu “the Walmart of banking”) going to jail. Not one!
FBI officials knew what was going on because they had good criminal intelligence on the mortgage-fraud schemes, on the corrupt attorneys and appraisers, and on the insider schemes. But no action was taken on the intelligence. Had the violators been terrorists whose crime resulted in deaths of innocent civilians — instead of homes lost to foreclosure while the corporations reaped billions of dollars in profits — the FBI would have been excoriated. But it was alleged that when Mueller was briefed on mortgage fraud, “his eyes would glaze over. It was not something that he would consider a high priority. It was not on his radar screen,” according to a retired FBI official cited in the press.
It wasn’t just the FBI’s white-collar crime program that lacked the resources and political will to do its job. Organized crime, complex international drug investigations, and domestic police cooperation suffered as well. There were simply not enough experienced agents working criminal cases nor enough federal prosecutors to prosecute the complex cases that could result from criminal investigations. As former FBI Deputy Director Mark Felt, speaking as the source Deep Throat, allegedly told Watergate reporter Bob Woodward in a basement parking garage, “You got to follow the money.” Unfortunately, today, according to current and past FBI agents, there are few people left with the expertise to follow the money.
The next director of the bureau will face significant criminal investigative and counterterrorism challenges. James Comey, like the previous two FBI directors, was a career federal prosecutor and an attorney at the Department of Justice for the majority of his career. This experience will serve him well, but only if he embraces a new paradigm that takes a hard look at the functionality of the counterterrorism and intelligence programs vis-a-vis the criminal programs and does not succumb to political pressure to only commit resources to what is politically expedient.
Among the current and former agents with whom I have spoken, Comey is highly regarded for his stand, along with Mueller, against then White House aides Andrew H. Card and Alberto R. Gonzales during their attempt to get ailing Attorney General John Ashcroft to reauthorize the warrantless wiretapping of American citizens then being conducted by the National Security Agency. Integrity goes a long way with rank-and-file FBI agents, as do the stones to stand up to your boss and tell him he is wrong. The threat to resign was real and would have had tremendous political impact had both Comey and Mueller left in protest of that policy. It is my personal hope that the president chose Comey based on a belief that a willingness to stand on principle is the single most important characteristic that an FBI director can have.
Will Comey continue to maintain that political independence, or will he succumb and follow Mueller’s policies regarding the prioritization of national security programs within the FBI over the needs of the criminal branches, particularly as the war in Afghanistan ends, and the president proclaims al Qaeda defeated? Does Comey represent a new hope or a continuation of the status quo? Only time will tell.
BY DAVID GOMEZ | MAY 31, 2013
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©2013 The Foreign Policy Group, LLC.