Because the FBI and the Justice Department are responsible for protecting us from that threat, we need to ask whether officials there are using all of the lawful tools at their disposal, whether the FBI is properly aligned to the threat, and whether the FBI’s culture helps or hinders that effort. One historical example is illuminating.
Before 9/11, FBI intelligence officials, especially in counterterrorism cases, did not fully share information gleaned in their investigations with FBI criminal investigative colleagues because of a “wall” between their operations. The origins of the wall are murky, but it inhibited full information sharing within the FBI and between the intelligence community and the Justice Department. The wall was rooted in policy and law, though it was more than that. It was reinforced by bureaucratic habit, trepidation and confusion within the Justice Department, and it made the FBI less effective. It also highlighted a stubborn inability to mend a faulty structure. That wall is gone. Do other barriers still exist?
The FBI is large and complex and has a difficult mission set — counterterrorism, counterintelligence, cybercrime, violent crime and public corruption, for starters. The threat streams are swift and strong, and navigating the many currents is challenging. As FBI Director Christopher A. Wray recently stated, the FBI has 2,000 open domestic terrorism investigations — double the number from four years ago.
The FBI is a good agency, but its culture is not merely good . . . or bad. It is filled with diligent and talented professionals led by a thoughtful director. These people care deeply about protecting us from all sorts of threats, and they succeed overwhelmingly at it. That is the good part of the culture.
But the factors that contributed to the wall — habit, trepidation and confusion — still exist, as in any large organization. And whether that manifests in a maddening and naive “we got this” mentality or an inability to see its own shortcomings, that is the bad part of the culture.
After the Jan. 6 riots, Wray proclaimed that a “situational information report” produced in the FBI’s Norfolk field office warning of possible “violence” was transmitted to the Capitol Police on Jan. 5, one day before the riot. The FBI also posted it to a “law enforcement Web portal” and briefed it to partners. Though the FBI suggests this is good and timely intelligence sharing, I disagree.
If smoke were coming from a neighbor’s house, I would bang on their front door and call 911. They would be properly dismayed if I emailed them a “situational information report” and posted my concerns on a neighborhood blog. I would have failed them, their house reduced to cinders. Urgent matters require, well . . . urgency.
The urgency of the Jan. 6 riot was obvious on Jan. 6. Was it obvious earlier in an FBI with thousands of cases, tips and threats? If it were, you would expect a direct warning — someone banging on the door.
Perhaps the FBI got institutionally “lucky” when the Norfolk report was transmitted to the Capitol Police the day before the riot. If this was a game of musical chairs, the FBI was sitting when the music stopped. It won. The Capitol Police were standing. They lost.
Regarding the breadth, scope and duration of FBI investigations, internal guidance is cluttered and confusing. FBI special agents must understand the limits of — and distinctions between — an “assessment” vs. a “predicated investigation,” and the difference between a “preliminary” vs. a “full” predicated investigation. Different investigative methods are allowed under each category. Assessments, for instance, “require an authorized purpose but not any particular factual predication.” Got that?
So, an FBI special agent needs an “authorized purpose” to assess something on social media that you, sitting at your kitchen table, can freely review on your laptop. Have we struck the proper First Amendment balance here? Are FBI investigative guidelines too loose, too restrictive? Even if the balance is right, do confusion and trepidation hinder investigative efforts? Relatedly, the Norfolk report authors, according to The Post, worried that the individuals and organizations they identified might be “participating in activities . . . protected by the First Amendment.” Was that a throwaway line? Their concern, given events at the Capitol, seems misplaced.
Finally, with some 2,000 open domestic terrorism investigations, does the FBI truly know which are most urgent? Has it shifted resources accordingly, and in a sustained way? Has it asked for help to fully cover the most urgent matters? Asking for help is a sign of strength, though often perceived in a bureaucracy as a sign of weakness. Does the “we got this” mentality get in the way here?
Before 9/11, we failed to dismantle the wall. That was a mistake. Are there similar vulnerabilities now — habit, trepidation and confusion — that encumber the FBI in its efforts to thwart domestic terrorism?