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Opinion Where was the FBI before the attack on the Capitol?

FBI Director Christopher A. Wray looks through documents as he testifies before the House Judiciary Committee on Capitol Hill on June 10. (Evelyn Hockstein/Reuters)

Ryan Goodman, a former special counsel at the Defense Department, is a law professor at New York University and co-editor-in-chief at Just Security. Andrew Weissmann, a law professor at New York University, previously served as general counsel of the FBI.

What did the FBI know before the Jan. 6 attack on the Capitol? What did it do to make sure it had the necessary intelligence? And what did the bureau do with what it did know?

After two days of recent hearings with FBI Director Christopher A. Wray, these questions remain frustratingly unanswered. Many law enforcement and intelligence agencies fell short in the run-up to Jan. 6; they failed to adequately prepare for the dangers of a singular event that had every member of Congress and the vice president gathered in a single location.

But the stingy, unenlightening testimony by the FBI director is particularly disappointing. Wray repeatedly failed to provide the information lawmakers seek to perform their oversight role. Like many Americans, lawmakers have been astonished that the FBI and other agencies did not pick up on the threats of violence broadcast for weeks on social media by Trump supporters and militia groups before Jan. 6.

In response to questions from Reps. Alexandria Ocasio-Cortez (D-N.Y.) and Eric Swalwell (D-Calif.), Wray suggested the bureau’s hands were tied by Justice Department policy that requires a “proper predication” before being able to scan social media. The FBI, he said, cannot go out and monitor social media “just in case.”

That answer is deeply unsatisfying. There were acts of violence and widely reported threats of more in the run-up to Jan. 6. FBI internal rules would have permitted an assessment of those dangers. The FBI, along with other agencies, routinely takes actions to prepare for highly sensitive events such as the Jan. 6 certification of the electoral college results.

Indeed, although Wray did not mention this to lawmakers, the FBI’s role in preparing for such events allows the bureau, in accordance with the attorney general’s guidelines, to engage in “proactively surfing the Internet to find publicly accessible websites and services” through which the “promotion of terrorist crimes is openly taking place.”

What is clear is that the FBI knew enough to take further action, but failed to do so. Shortly after the attack, the head of the FBI’s Washington Field Office said that the Bureau had “developed some intelligence that a number of individuals were planning to travel to the D.C. area with intentions to cause violence,” and that the FBI disrupted their travel. The Post reported that dozens who were on the federal government’s terrorist watch list came to Washington for the events that day. The New York Police Department also reportedly “sent a packet of material” to the FBI that was full of intelligence from social media sites indicating “there would likely be violence when lawmakers certified the presidential election on Jan. 6.”

Did the FBI make an affirmative decision not to issue a threat bulletin despite these developments? A bulletin could have placed on heightened alert not only those officials involved specifically in protecting the Capitol, but also law enforcement authorities across the country.

What was behind that failure to act? Despite Wray’s appearing five times before Congress since Jan. 6, he still hasn’t said. In Tuesday’s hearing, House Oversight Committee Chair Carolyn B. Maloney (D-N.Y.) also revealed that the social media company Parler made more than 50 referrals to the FBI with tips of planned violence in Washington on Jan. 6, including specific threats of violence being planned at the Capitol. Wray confirmed the company had done so (after giving Swalwell a different answer last week). What was done — or not done — with that information?

What is hard to understand about the FBI’s failures is that, by comparison, the recent Senate report shows the U.S. Capitol Police was apparently far ahead of the FBI in understanding the threat. Their small intelligence division only “began gathering information about events planned for January 6 in mid-December 2020” but “through open source collection, tips from the public, and other sources … knew about social media posts calling for violence at the Capitol on January 6, including a plot to breach the Capitol, the online sharing of maps of the Capitol Complex’s tunnel systems, and other specific threats of violence,” according to the report.

Where was the FBI?

These hearings should have been an opportunity for Wray to turn the corner on how the department will respond to congressional oversight. His responsibility for leading the FBI during a foreseeable domestic terrorist attack needs to come under greater scrutiny, as it should in a healthy democracy, and he must do more to give lawmakers the information they need to assure this kind of assault does not happen again.

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