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In Domestic Intelligence Gathering, the FBI Is Definitely on the Case

Washington, D.C. March 21, 2007
  • FBI National Press Office (202) 324-3691

Judge Posner repeats in his March 19 op-ed commentary "Time to Rethink the FBI" his now longstanding criticism of the bureau as an organization that has failed to transform in taking on an expanded intelligence mission. He says we have not made enough progress. He says we are gathering information to obtain convictions and without regard to our responsibilities as an intelligence agency. He says we need a separate intelligence service in this country, and he critiques virtually every aspect of the bureau in arguing that we cannot accommodate an intelligence program within the FBI.

I joined the CIA in 1985 as an analyst, and I left on loan to the FBI, to become second-in-charge of the National Security Branch responsible for this intelligence transformation, in September 2005. I watched counterterrorism operations for years; my most recent position at CIA was as second-in-charge of the Counterterrorist Center. There are many more important things we do beyond watching our critics comment on the FBI in the media, but few things in my 19 months at the bureau have been as curious as the broad gap between perceptions of the bureau among some critics, including Judge Posner, and the reality I have witnessed during my time here.

Judge Posner's comments fall short, well short, in two fundamental areas: facts and analysis. He is dead wrong on both fronts.

First, the facts. Judge Posner points to FBI investigations as law enforcement measures that are not intelligence operations. This is incorrect. We have discussions at least once a day with Director Mueller and senior operational managers to discuss the most significant terrorist threats we see. No discussion has ever focused solely on a prosecution or on a need to compile evidence quickly for a courtroom. Every discussion I've seen focuses on how much we understand al Qaeda and its homegrown cells.

Terrorism is not about stopping plots. We can stop plots, and do, with our partners in foreign security services, at CIA, at Homeland Security, with state and local police, and with Americans who help. But terrorists will plot again if we defend against only their schemes and fail to stop the terrorists themselves. So our focus is on what to do about terrorists once we draw an intelligence picture of who they are and what they are up to. When intelligence groups use their unique tools to stop terrorists overseas, they disrupt unilaterally and sometimes with foreign partners, often using those partners' law enforcement tools to take terrorists off the streets. But the end of their often brilliant intelligence operations is disruption: stopping people so they cannot plot again.

We operate within the U.S., and we have a different set of tools. But we have the same end as they do: disruption. Once we fully understand a cell, we can either let it run, which we often do, or take it down. When we take it down, we use tools that reflect American laws, used in ways that reflect American values. We penetrate cells to develop a sufficient understanding of who they are so we can limit the prospects of surprise. And once we have that understanding, we do what our partners do: We disrupt that cell using the tools at our disposal. Any security service around the world—MI5, CIA, Shin Bet—operates using this model.

Judge Posner's arguments are equally flawed when one actually examines how our foreign intelligence partners operate. He argues for an MI5, a separate security service that has only domestic intelligence responsibilities. It is not clear to me why such an approach would be any better than what we have. In fact, I believe it would be fundamentally worse. First, when our sister security services overseas operate, they do not function independently. They operate jointly, with their police counterparts. They may run parallel informant networks at the same time, keeping one network focused on intelligence collection while another might include an informant who can appear in a courtroom. We have the luxury, in this country, of a more efficient approach: We can sit at the table, in one organization, and talk about the intelligence we are collecting and what we should do about it, whether we should continue collecting or disrupt, and what options we have under either scenario.

The FBI is a national security agency; we are not solely a law enforcement agency. Judge Posner is right—we are not and never will be solely an intelligence agency. We are the federal agency responsible for national security, combining the authority and capability to collect information that could pre-empt a threat and to do something about it. Dividing these combined responsibilities by creating yet another federal agency, an MI5, would be remarkably inefficient and terribly slow. Who would divide the tactical responsibilities that overlap and snag? Why should one agency manage intelligence sources on Hezbollah and another manage sources who provide the same information but can appear in a court of law? Who would police turf wars? And how many more resources would we have to expend to fund and staff an agency dedicated to collecting the intelligence we already collect at the FBI? Such a move would be not only inefficient but foolish.

We have had remarkable success collecting against organized crime families, for example, so we could understand their structures and then take them down in what was a remarkable intelligence success. More recently, we've hired over a thousand more analysts, trained agents in intelligence collection programs, added national security training for all agents, and expanded guidance to FBI field offices on how we should conduct our intelligence mission. And we've shifted massive resources into counterterrorism and counterintelligence and made commensurate advances in our relationships with state and local law enforcement, tripling the number of joint terrorism task forces.

But we also have a ways to go to evolve our intelligence mission. Once we do, we should determine how to get even better. We don't train our personnel well enough yet, though we are working closely with intelligence partners to do so. We continue to devise policies for guidance in collecting intelligence. I joined the bureau with questions: Can we do this? Will we do this? And how? Nineteen months later, these questions are answered. It is the responsibility of those of us leading this bureau to provide the guidance, tools, funding, and vision to accomplish this mission. Judge Posner fails to understand what we have done, who we are, and how we go about our mission. He simply doesn't know.

John P. Mudd
Deputy Director
FBI's National Security Branch

(As printed in The Wall Street Journal, March 21, 2007)