Counter-Counterterrorism: The debacle pre-9/11

Fighting back tears, an agent from the FBI's New York office told Congress how his Washington bosses had ordered him not to track suspected terrorist Khalid al-Midhar. Precisely because the CIA had told the FBI that Midhar was an al-Qaeda operative, the FBI could do nothing: Data obtained through intelligence channels could not be used to launch a criminal investigation. Midhar was let be. Thirteen days later, he helped hijack the plane that struck the Pentagon.

The agent's testimony, delivered to a shocked audience at a September hearing of the Joint Intelligence Committee, spotlighted a grave flaw in our national-security system: the wedge between law enforcement and intelligence. Yet for all their focus on this wedge -- in nine public hearings -- committee investigators showed little curiosity about its origins. In a staff report, they cited rules "about using information derived from intelligence-gathering activities in criminal investigations," but did not consider how the rules arose. They merely noted that certain procedures had "developed over the last several years."

Saying "the last several years" -- instead of "the Clinton administration" -- did preserve the hearings' bipartisan tone. Unfortunately, it also thwarted scrutiny of the policy that caused our spy failures -- a Clinton policy the Bush administration has yet to fully reject.

Though President Clinton failed in his ambition to "reinvent government," he did manage to reinvent national security. His core innovation was to expand the FBI's powers while reducing the CIA's. Previously, law enforcement and intelligence had coexisted in a delicate equilibrium; Clinton pushed down hard on the law-enforcement side of the seesaw.

The rationale for this shift was provided by the FBI itself. In January 1992, the George H. W. Bush White House asked all security agencies to reassess their "post-Soviet" priorities. At that fateful moment, the chief of the National Security Threat List Unit, in the FBI's Intelligence Division, suggested a radical shift in focus: Instead of neutralizing organized secret warfare by states, the counterintelligence community should target criminal acts by loose networks of rogue actors. The collapse of the Soviet Union, it was foreseen, would provide a fertile operational field for the transnational criminal. The threat list was revised accordingly: Three hundred FBI agents were pulled from intelligence duties and pushed into international crime.

The FBI unit chief who revised the threat list, Robert Phillip Hanssen, would later confess to being a Soviet and Russian agent. But by then the new notions about national security were dogma. In May 1994, FBI director Louis J. Freeh told Congress that "criminal cartels are now richer and stronger than many nations." The New York Times echoed that judgment: "The threats [today] are less nations than gangs. The harm they can do the United States is . . . a law-enforcement problem."

This doctrine was refined by former Carter defense secretary Harold Brown, whom Clinton chose to head the Commission on the Roles and Capabilities of the United States Intelligence Community. Brown redefined international terrorism -- traditionally considered a form of political warfare -- as a form of "global crime." Terrorism joined narcotics transshipment and trafficking in weapons of mass destruction in that category; Clinton nearly always mentioned all three together, typically in the same sentence, as if they were the heads of one private-sector hydra, an unsponsored monster that was merely the incidental byproduct of globalization.

To counter global crime instead of global political subversion, the national-security community would have to be reoriented. During the Cold War, when the greatest perceived threat was a military one, the Pentagon had been seen as the institution that could best defend America. Now, in the age of global crime, the FBI would be the new Pentagon. Much as the Pentagon had absorbed the Army, Navy, Air Force, Marines, electronic surveillance, and satellite reconnaissance, so now the FBI became a bureaucratic Pac-Man, gobbling up national-security functions.

Presidential Decision Directive 24 (May 3, 1994), which gave the Bureau control of counterespionage, was just the start. The Economic Espionage Act and the Combating Proliferation of Weapons of Mass Destruction Act thrust the Bureau farther into CIA preserves. And on June 21, 1995, Clinton issued Presidential Decision Directive 39, which made the Bureau the pointed end of the counterterrorist spear. The purpose of PDD-39, attorney general Janet Reno said, was to "integrate the roles of all pertinent federal agencies in a comprehensive, pro-active counterterrorism program." Clinton named the FBI the "lead" agency in that effort, and -- lest the importance of that distinction be questioned -- PDD-39 itself specified: "Lead agencies are those that have the most direct role in and responsibility for implementation of U.S. counterterrorism policy" (emphasis added).