By Jerry Markon
Washington Post Staff Writer
Thursday, August 26, 2010; 6:29 PM
A long-standing battle between the FBI and the ATF over who controls investigations of bombings is a serious problem that has caused law enforcement delays and duplication of effort, according to a top Justice Department official who is trying to resolve the dispute.
Acting Deputy Attorney General Gary G. Grindler, in an internal memo, said it is "critically important" that the two agencies share information so key intelligence is not lost. He designated the FBI as the lead investigator for explosives cases linked to terrorism, while the Bureau of Alcohol, Tobacco, Firearms and Explosives will control all other bombing inquiries.
But the Aug. 3 memo - which highlights a rift in which FBI and ATF agents have occasionally battled over jurisdiction and evidence, and even threatened to arrest each other at crime scenes - has triggered new resistance within ATF. The memo creates broad categories of explosives cases presumed to have terrorist links, such as those targeting courthouses, schools, shopping malls or any "tourist attraction."
The result, some ATF agents fear, is that the FBI will grab high-profile investigations by claiming a terrorism nexus and marginalize the ATF's explosives expertise.
"It's very disheartening," said one ATF agent, who was not authorized to speak publicly about internal matters. "They won't hesitate to throw that memo in our face."
Other agents said there will be further delays as the FBI decides whether bombings are terrorism-related - and then hands over some cases weeks later to ATF agents who must retrace the FBI's steps. The agencies use different techniques to investigate bombings.
"Everyone will have to wait for the FBI to make a decision," said one ATF agent. "This gives one agency - the FBI - the ability to control everything."
Top officials at both agencies said they supported Grindler's memo and are working together to implement it. They said relations have improved in recent years, especially since the Justice Department's inspector general found last year that agents were clashing at crime scenes "throughout the country."
"ATF is diligently working with the FBI to implement the recommendations and requirements set forth in his memorandum," said ATF Deputy Director Kenneth E. Melson. He said Grindler's guidance "will enhance law enforcement's capabilities nationally, and ensure safer communities."
T.J. Harrington, the FBI's associate deputy director, praised Grindler's "leadership" and said "both the FBI and ATF are committed to providing their very best in service to the American public. The Deputy Attorney General recognized the unique strengths of our two organizations, and he has reaffirmed our common commitment and goal of 'One-Team One-Fight' - keeping the country safe."
The ATF will probably retain lead-agency jurisdiction over the vast majority of explosives incidents, officials said, since federal figures show that more than 90 percent are not related to terrorism. Such incidents can range from minor pipe bombings to the recent attempted terrorist bombing in New York's Times Square.
Turf battles are nothing new in Washington. But FBI-ATF squabbling poses particular dangers in the post-Sept. 11 era, experts said, because cooperation is more vital than ever to prevent another terrorist attack on U.S. soil.
"It is absolutely critical that they get along, particularly in the terrorism context," said McGregor Scott, a former U.S. attorney in Sacramento who teaches national security law at McGeorge School of Law at the University of the Pacific. "If you're a local sheriff or police chief, the last thing you want to see is two agencies within the Justice Department fighting each other."
Grindler makes similar points in his memo. Although the FBI and ATF work well together in most instances, he said, "there nonetheless have been disputes in some cases where both agencies have asserted lead jurisdiction" over bombing investigations.
The conflict is "a persistent problem" that has caused "unfortunate confusion" among local law enforcement officials and "duplication of effort between ATF and the FBI," Grindler wrote. He said the situation "must be remedied . . . so that there is never an incident where actionable intelligence does not get into the right hands because of concerns about which agency will be the lead."
The FBI and ATF have distinctive cultures that have bred mutual suspicion. Some ATF agents, many of whom are former police or military officers, have long resented their FBI counterparts, who until the mid-1990s were usually higher paid.
The ATF's transfer from the Treasury Department to the FBI's home at the Justice Department after Sept. 11, 2001, was supposed to eliminate tension and coordinate the fight against terrorism.
But it created more competition by expanding the ATF's role in domestic terrorism cases, bringing that agency into conflict with the core mission of the post-Sept. 11 FBI. It also added the word "explosives" to ATF's name, which had been the Bureau of Alcohol, Tobacco and Firearms.
Glenn A. Fine, the Justice Department's inspector general, reported last year that battles were flaring at crime scenes from Baltimore to Houston, delaying witness interviews and impairing the government's ability to spot trends in bombings.