Proposals Calling for New Domestic Intelligence Agency Based on MI5 Ignore Similarities with FBI

With every new story about “incompetence” or “intelligence failures” within our federal law enforcement or intelligence agencies, citizens and newspaper editors step forward to cry for a new intelligence agency to be established in the U.S. to replace the FBI as the lead agency for domestic counterterrorism investigations. In the wake of Friday’s released unclassified report revealing that the FBI under reported its use of National Security Letters (an exigent circumstance records request similar to an administrative subpoena), it did not take long for critics, unfortunately including the editors at the Wall Street Journal, to expand the rhetoric beyond the National Security Letter reporting issue and call for a new agency that will magically succeed where they perceive the FBI has failed.

According to the WSJ editors:

This is another fiasco for the FBI, which may simply be incapable of effective counterterrorism. Every independent group that has looked into the FBI--including the Robb-Silberman commission--has found that the agency is failing in that duty. Whatever discipline is handed out for this latest foul-up, the country needs to debate again whether domestic antiterror functions should be taken from the FBI and given to a new agency modeled after Britain's MI5. The FBI's culture of crime-fighting and case-building to win convictions may be incompatible with the prevention and intelligence demands of counterterrorism.

The WSJ editors omitted the important fact that the Robb-Silberman commission, while highly critical of the FBI, did not advocate the creation of a new agency to take over the FBI’s counterterrorism duties. The commission reported that the FBI had agreed to make significant changes to address its shortcomings by 2010, and thus withheld any proposal for a new agency until after 2010. Well into 2007, and with the FBI in the news again for administrative errors, it is unclear what, if any, progress the FBI is making toward restructuring itself before its detractors take the reigns of reform with relish in 2010.

Having experience in these fields, I am fully aware of the shortcomings of the FBI and other federal agencies in the effort to prevent and investigate terrorist activities and further to prosecute Americans linked to terrorism. Mistakes, at times grave but usually unintentional, have been and continue to be made by the FBI and other agencies. That is the nature of human intelligence and law enforcement, and these mistakes certainly deserve attention and scrutiny in the spirit of suggested improvement. However, to point to MI5 as the panacea model that will solve America’s domestic counterterrorism woes ignores two critical points: First, MI5 has experienced many of its own frequent and very public failures; second, forming new government agencies is almost never the answer to a governmental reform problem.

There are numerous examples of MI5 intelligence errors, including the infamous "Cambridge 5," a massive internal penetration of MI5 by Cambridge University students recruited and handled by the KGB. MI5 was also criticized for a perceived failure to warn Britains of the targeting of entertainment spots in Bali prior to the 2002 Bali bombing that killed 24 British Citizens, among many other victims. MI5 critics likewise believed the agency should have made connections among individuals later discovered to have perpetrated the London Tube bombings in July 2005. One of the bombers reportedly visited Britain just weeks prior to the attack but was never placed under surveillance by MI5. For a fascinating look into MI5 that FBI critics should examine is Spy Catcher: The Candid Autobiography of a Senior Intelligence Officer. These are merely two examples out of many in which MI5 was criticized for precisely the same shortcomings the FBI waded through after 9/11.

Perhaps MI5’s organizational structure is superior, but its efficacy is questioned by the British government and press with nearly as much zeal as the FBI experiences from Congress and the American media. It is a truism among intelligence and law enforcement personnel that your mistakes are front page news, while your successes are met with a shrug of the shoulders. Failure is always a bigger story than success. If you successfully identify and prevent an attack, you are simply told “thanks for doing your job.” If you make a mistake, the vultures immediately squawk for your duties to be given to someone else, preferably a new entity with no record of failure or success to tarnish its pristine reputation.

We have been down this road before, as recently as post 9/11 with the establishment of the behemoth Department of Homeland Security (DHS). DHS was ostensibly formed to collectivize agencies possessing national security and emergency response capacities and duties to “secure the homeland,” and improve coordination and efficiency of responses to national emergencies. Has it worked? Not according to a recent poll that declared DHS to be the least trusted agency within the U.S. government by the American people. Interestingly, public trust in the FBI, CIA, and NSA, despite media excoriations of FBI terrorist investigations, the CIA’s failure to locate and kill Bin Laden, and the alleged threat to privacy posed by the NSA domestic surveillance program, is higher than trust in DHS. Why the lack of confidence in DHS? The Department’s size, with 20+ agencies and 170,000+ employees, may influence skeptics to conclude it will never integrate fully or that some components have no direct role in securing the homeland, such as FEMA. Yet it seems clear that the more significant reason may be that Americans are wary of any new government department or agency (DHS was created in 2002) and are more apt to place their trust in agencies that have track records, even records rife with mistakes, to no track record at all. How long would it take for a new domestic intelligence agency to become operational and engender public trust? How many attacks will occur during such a fundamental reorganization?

Therein lays one of the significant arguments against the formation of a new American MI5 intelligence agency to take over the FBI’s domestic counterterrorism functions: Where will this new agency obtain its analysts and field operatives? What will be new about it other than its name and reporting structure? The learning curve in these fields is too long and the War on Terror too pressing to afford sufficient time for an entirely new agency to select inexperienced personnel and train them according to the new agencies techniques and standards. If such an agency were created, there would be an immediate need for experienced intelligence analysis staff, and the applicant pool would consist of the same analysts currently functioning within the FBI, CIA, and DHS. Through no fault of their own, these intelligence staffers would bring established organizational cultures, information sharing issues, and varying work ethics, thereby ensuring that the “new” agency would be anything but new in its ideas or preconceived intelligence estimates.

What the WSJ editors and others who have called for the creation of a new intelligence agency neglect to recommend is the need to give equal scrutiny to the possibility of restructuring the FBI by reassigning jurisdiction over many financial crimes to other federal agencies that are currently smaller and limited in scope, such as the Treasury Department, Bureau of Alcohol, Tobacco, and Firearms (ATF), and others. Thousands of FBI agents currently investigating white collar crimes could be freed from those cases and assigned to higher priority investigations, specifically domestic counterterrorism. If it is true, as a Washington Post contributor argued in 2005, that the FBI is 90% criminal investigation and 10% intelligence, then it would make more sense to move those percentages closer together and not lose whatever level of expertise exists in that 10%, than it would to simply take the 10% away and create yet another government agency. If after such a restructuring and narrowing of focus the FBI continued to prove inadequate to the task of counterterrorism, then a proposal to reassign such duties to a different or new agency should be considered.

Under reporting the number of National Security Letters it issued and inadequately training agents on what information could or could not be requested with the letters were clearly internal administrative errors. The Inspector General’s report declared that such errors were not criminal in nature and there was no evidence that any privacy rights were violated by the FBI’s issuance of the letters or the subsequent under reporting of the number issued. Yet critics are always poised to call for the most drastic remedies, and often use the symptoms of minor illnesses like under reporting to suggest the patient, in this case the FBI, has no hope for recovery. If occasional error or failure to connect the intelligence dots were considered symptoms of terminal illness in an agency, no intelligence or investigative agency, foreign or domestic, would have hope for survival, as all appear similarly afflicted.

The WSJ editors, though, did make an important statement regarding any proposed remedy to the FBI’s shortcomings:

The worst outcome would be if Congress limited the administrative subpoena power in order to punish the FBI. By all accounts, these "national security letters" have proven to be useful in tracking potential terror threats. In particular, the Bush Administration shouldn't now give in to any such demands merely to appease Congress or save the jobs of Messrs. Mueller or Gonzales.

Spy the News! concurs with this opinion and advises readers to watch the development of these issues, as Bush administration critics will seize upon National Security Letters as an alleged menace to personal and corporate privacy rights. The National Security Letters work, and despite media stories with alarmist headlines insinuating that the FBI was “snooping” on Americans and intentionally not reporting it, the only remedy that is needed in this case is an organized reporting system that tracks the number of letters issued and assures that agents are properly trained in what information they can and cannot obtain with this valuable tool in the War on Terror.

Agencies Failing to Protect Agents and Operatives From Physical and Legal Threats

Have you ever risked your life to benefit your employer or the greater good? Intelligence field operatives, military personnel, and law enforcement do so on a daily basis, with little expectation of reward or recognition. Is it unreasonable for personnel who have worked undercover to expect their employers to do everything possible to protect them when foreign operatives or betrayed criminals issue death threats and cash bounties to kill the employee? There is a marked difference between feeling under appreciated and feeling completely abandoned and in constant fear for one’s life. Although the risk of revenge or reprisal from infiltrated governments or criminal organizations is known to undercover operatives or agents before they undertake an assignment, they still reasonably expect their employer to make every effort to protect them once the operation is completed and cover is exposed.

Consider the case of Jay Dobyns. A former football player at the University of Arizona, Dobyns joined the ATF and became an undercover agent . During his first operation in 1987 he was shot in the back by a suspect. The round came within inches of his heart. He recovered and was transferred to Chicago, where he was struck by a vehicle driven by a suspect firing on him with an automatic weapon. He later infiltrated the Calabrese organized crime family and the Hells Angels. Dobyns incredibly faked a murder to be accepted into the Hells Angels. The Hells Angels and Aryan Brotherhood have offered cash contracts to hit men to find and kill the former Arizona receiver. One would assume that an employee who has demonstrated such remarkable courage and effectiveness would be sufficiently valued by an employer to offer him witness protection or similar security measures. Dobyns certainly made that assumption and now faces the reality that protecting its own is apparently not a high priority despite official statements to the contrary.

In a liaison capacity a few years ago, I represented an unnamed government agency at an awards ceremony. The main attraction at that event was Jay Dobyns, who was presented the Law Enforcement Officer of the Year award. While sitting in that large banquet hall listening to harrowing descriptions of Dobyns’ 2 year undercover infiltration of the Hells Angels gang, I was amazed that he had survived the experience and frankly more amazed he was being trotted around the country like a show pony by his agency despite death threats and contracts being offered in prisons nationwide for his murder. It did not appear then, and it appears even less so now, that his employer has any interest in protecting Dobyns, who sacrificed his identity, his family, and any semblance of a normal life for 2 years to effect more than 40 arrests of Hells Angels’ leadership structure.

Dobyns, harboring little hope that the ATF will take action to protect him and his family, now feels forced into bringing attention to his plight through the media, which he hopes will result in public pressure being applied to the ATF to protect him and others in similar danger. This media effort places him at even greater risk as his current appearance is shown on web sites and cable news channels, but Dobyns apparently sees no alternative. In an effort to raise awareness, Dobyns granted an extensive interview to CNN, in which he warned that there are many other agents and officers who have worked undercover for various agencies and were similarly abandoned once they returned to civilian life. All of them had something in common: They faced credible threats of reprisals from those whom they had infiltrated.

After warning the ATF of the death threats and murder contracts, Dobyns was surprised and angered by the ATF’s reaction. According to the CNN report:

In response, Dobyns says, the ATF gave him a routine transfer with no special protection, despite his repeated protests. The ATF could have moved Dobyns and his family under what is known as a "threat policy" -- similar to the kind of protection the government routinely gives witnesses in organized crime cases.

But federal agents who go undercover don't automatically get a high level of protection, according to Dobyns and other ATF agents CNN interviewed.

"In order to save money, I was told it wasn't cost effective," Dobyns says.

Dobyns says he has moved himself and his family several times to elude those who've threatened to kill him. He has filed a claim with the ATF for the emotional stress and financial burden he says he's had to bear as a result.

The acting director of the ATF notified CNN that Dobyns’ grievance claim is under review, which to anyone with government experience signifies that no immediate remedy is being sought by the ATF to protect Dobyns until the outcome of this grievance review is determined.

The report also included the results of interviews with a dozen other former undercover ATF agents who have filed claims similar to Dobyns’. The official ATF response to CNN asserted, “"[T]here is nothing more important to ATF and to me than the safety and protection of our employees and their families. We at ATF understand that we have a solemn responsibility to protect the people whom we charge to investigate and arrest the country's most violent criminals."

The ATF statement was refuted in a CNN interview with a prominent former trainer of undercover agents:

Charlie Fuller is a 23-year retired veteran ATF special agent and a former top trainer of undercover agents, who wrote a manual on undercover work, "The Art of Undercover." He trained Dobyns and many other top ATF undercover agents.

"What happened to Dobyns is not an isolated incident," said Fuller. In many cases, he said, managers don't thoroughly understand the complexity of the undercover work or how to best work with and manage the agents once they're back in the real world.

He said agents are seen as troublemakers or retaliated against if they raise complaints or report problems.

"Threats like what Dobyns faced -- this is the most serious thing an ATF agent can face -- the threats against his family," said Fuller. "How could they ignore something like that?"

Hopefully Dobyns and others facing similar threats can continue to elude death at the hands of enemies they made while in service of the ATF long enough to receive that review decision.

Other agencies within the intelligence and law enforcement communities are likewise guilty of failing to adequately protect valued employees who have lost all possibility of anonymity or quiet family life due to their undercover assignments. The problem of abandonment or insufficient protection is not solely an ATF issue. Employers demonstrating loyalty to employees seems to be the exception rather than the rule. The plight of Border Patrol agents Ignacio Ramos and Jose Compean may be an example of this, as new reports have now surfaced that government reports provided to prosecutors contained false information, according to an Inspector General. These reports refute testimony used to convict the two agents in the shooting of a fleeing armed Mexican drug smuggler transporting hundreds of pounds of narcotics into the U.S. The Mexican smuggler, although in the U.S. illegally, filed a lawsuit for damages against the two agents. Additionally, prosecutors convinced the jury that the agents failed to report the incident to supervisors in an effort to cover up their actions, when recently released documents reveal that Agent Compean did in fact report the incident to his supervisor.

While some facts of that case remain in dispute, one fact is all too clear: the U.S. Government, specifically the Border Patrol and its parent department, failed to provide exculpatory evidence that might have protected its employees from a controversial and polarizing prosecution. What motivated that action should be the focus of media and Congressional inquiries. The motivation for the ATF to abandon Dobyns and others should receive similar scrutiny and condemnation. When government fails to protect those who sacrifice their identity and family security in its service, it discourages potential recruits and embitters dedicated personnel who deserved better.