Criminal Justice & the Rule of Law Democracy & Elections

The Questions FBI Director Christopher Wray Wasn’t Asked

Friday, March 5, 2021, 2:50 PM

The Senate Judiciary Committee fails to hold the FBI director accountable for the massive intelligence failure for which his agency is chiefly responsible.

The U.S. Capitol Building on Jan. 6. (Blink O'Fanaye, https://flic.kr/p/2kpQPuv; CC BY-NC 2.0, https://creativecommons.org/licenses/by-nc/2.0/)

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It was the most catastrophic intelligence failure since Sept. 11, 2001.

One of the three branches of American government faced violent invasion. The invaders threatened the lives of the speaker of the House, the vice president of the United States and all members of Congress. People died. Many more were injured. And the intruders successfully interrupted the basic functioning of American democracy: its peaceful transfer of power and its ability to honor the results of an election in which those in power lost.

Yet on March 2, the man who heads the intelligence component chiefly responsible for domestic intelligence matters, for terrorism investigations, and for combatting violent extremism appeared before the Senate Judiciary Committee and had a pleasant exchange with senators. The committee members seemed positively uninterested in his agency’s obvious institutional failure in the run-up to Jan. 6.

FBI Director Christopher Wray is a decent man, and he has served under incredibly difficult circumstances. We are in no sense braying for his blood. We do want to suggest, however, that the failure of senators to ask him basic questions about the FBI’s performance is an abdication of their own responsibilities. And their seeming eagerness to accept Wray’s assurances that the FBI has performed admirably in combating domestic violent extremism stands in sharp contrast to their properly inquisitorial attitude toward the performance of Defense Department officials and those responsible for security on Capitol Hill.

Wray and the FBI should not be getting a pass here.

Let’s not fault Wray for telling the best story for himself and his agency that the truth will bear. That’s his job. And he’s got some data points that are not trivial. His presentation before the Judiciary Committee ran along the following lines: First, the FBI has been warning about domestic violent extremism for quite a while. Wray himself has designated it among the bureau’s top priorities and among the greatest threats the country faces: <blockquote> The problem of domestic terrorism has been metastasizing across the country for a long time now, and it’s not going away any time soon. At the FBI, we’ve been sounding the alarm about domestic terrorism since about my first month on the job, when I first started appearing up on the Hill, and I have spoken about it in maybe a dozen different congressional hearings. Whenever we’ve had the chance, we’ve tried to emphasize this is a top concern and remains so for the FBI. In fact, ... we’ve viewed it as such a critical threat that back in June of 2019, under my leadership, we elevated racially and ethnically motivated violent extremism to our highest threat priority. </blockquote> Second, Wray boasted to the senators that he has ramped up investigations, and the bureau now has a lot of them ongoing all over the country. <blockquote> In terms of domestic violent extremism, domestic terrorism, that number now has grown steadily on my watch. So, we’ve increased the number of domestic terrorism investigations from around 1,000 or so when I got here, up to about 1,400 at the end of last year, to about 2,000 now. … And the number of arrests, for example, of racially motivated violent extremists who are what you would categorize as white supremacists, last year was almost triple the number it was in my first year as director. </blockquote> Third, Wray emphasized that the bureau provided general intelligence to the Capitol Police and other agencies warning of election-related violence: <blockquote> I will tell you that we the FBI, over the course of 2020, put out a number of intelligence products specifically warning about domestic violent extremism—including specifically warning about it in connection with the election, including specifically warning about that threat in relation to the election continuing past election day itself and up through the inauguration, and including a product that I think we put out with DHS in December of 2020. </blockquote> And finally, according to Wray, when the FBI’s Norfolk office developed more specific intelligence on Jan. 5 about what might happen the following day, it shared that material within an hour with D.C. and Capitol Police officials by multiple different means: <blockquote> Sen. Dianne Feinstein: When did you first receive intelligence about the possibility of an attack on the Capitol on January 6th? And what happened to the process that people weren’t seeing the warnings? Wray: Well, senator, I think the intelligence or the information that you’re asking about is the much discussed Norfolk S.I.R. or situational information report. I didn’t see that report, which was raw, unverified information, until some number of days after the 6th. But again, that raw, unverified information was passed within I think 40 minutes to an hour to our partners, including the Capitol Police, including Metro P.D. in not one, not two, but three different ways: one email, one verbal and one through the law enforcement portal. As to why the information didn’t flow to all the people within the various departments that they would prefer, I don’t have a good answer for that. </blockquote> That’s the FBI’s story, and it faced virtually no challenge from senators. Many Republicans on the committee seemed principally concerned with establishing an equivalence between white supremacist violence and violence committed by antifa. And a number of Democrats seemed keen to rebut that premise. A number of members decided to talk about other things altogether—from <a href="https://youtu.be/wjxZ3hzwtjM?t=12355">SolarWinds</a> to <a href="https://youtu.be/wjxZ3hzwtjM?t=5508">Forign Intelligence Surveillance Act reforms</a> to the <a href="https://youtu.be/wjxZ3hzwtjM?t=10185">diversity of Wray’s staff</a>. And Sen. Sheldon Whitehouse of Rhode Island <a href="https://youtu.be/wjxZ3hzwtjM?t=4819">got quite worked up</a> about the FBI’s failure to respond to committee questions for the record from previous hearings. But with the exception of Sen. Richard Blumenthal of Connecticut, nobody even attempted to dig into Wray’s basic story. Blumenthal gave it a try—once. <a href="https://youtu.be/wjxZ3hzwtjM?t=8191">Here’s the entirety of his exchange with Wray on the subject</a>: <blockquote> Blumenthal: I think the American people listening to these past ten days of hearings and knowing how much information there was out there on social media, in other forms, about these thugs and rioters coming to Washington—organized groups, Three Percenters, Proud Boys and others—are wondering: Why didn’t the FBI sound the alarm? I know there was a communication through that threat assessment. I know you’ve talked about the agencies that were hearing that assessment, but here we have the United States Capitol, where a key function of democracy enabling the peaceful transition of power was taking place and a threat of violence and even death to them. Why didn’t you go to the Gang of Eight? Why didn’t you sound the alarm in some more visible and ringing way? Wray: Well, senator, I guess a couple of things. One, over the course of 2020 we repeatedly, repeatedly put out intelligence products on this very issue. Domestic violent extremism, specifically tied to the election, domestic violent extremism tied to the election and continuing beyond the election and up through the inauguration, and specifically in December of 2020. In addition to that, in connection with the one piece of raw intelligence that’s been discussed so much here today, we did pass that on to the people in the best position to take action on the threat—not one, not two, but three different ways. Now, more broadly in terms of what’s out in social media, as a number of the questions here today have elicited, I think it highlights one of the most challenging jobs for law enforcement in today’s world with social media. There is so much chatter, often unattributed to somebody in a neatly identifiable way, where people are saying unbelievably horrific, angry, combative things, using language about beheading and shooting and explosives and all kinds of things like that, and separating out which ones are getting traction, which ones reflect intention as opposed to aspiration, is something we spend an enormous amount of time to do. Sometimes we don’t have the luxury of time and the ability to make those judgements. I can assure you that as I said to Senator Klobuchar, my standard is we’re trying to bat 1000. We want to thwart every attack …. Blumenthal: I understand your response. What I don’t understand is why this chatter and raw intelligence didn’t prompt a stronger warning, an alarm, going to the very top of the United States Congress because clearly the United States Congress was under severe threat. </blockquote> But Blumenthal ran out of time. And nobody followed up, so Wray’s answer was thus allowed to stand. Senators did a little better in questioning Wray’s counterterrorism chief, Jill Sanborn, who testified the following day before <a href="https://www.youtube.com/watch?v=lRC9Y4D7fNM">a joint hearing of the Senate Rules Committee and the Senate Homeland Security Committee</a>. During an opening statement, Sen. Rob Portman set the stage for these exchanges, asserting that “many questions remain unanswered” regarding intelligence failures. Portman asserted, “We need to know what information the intelligence community reviewed prior to Jan. 6, how it assessed that intelligence and characterized the potential for violence when it shared that intelligence with law enforcement.” Several senators went on to critique how the FBI communicated the relevant information in the Norfolk memo and how the bureau failed adequately to warn of the impending threat, especially considering the seriousness of the danger and given the ubiquitous presence of warning signs on social media. But Sanborn, for her part, didn’t stray much from Wray’s script. Sen. Maggie Hassan, for example, asked Sanborn about the standard policy for disseminating reports like the Norfolk memo, pointing out that “it’s important for us to understand if this was a failure in information sharing policy or practice.” Sanborn explained that part of the reason the FBI was able to get the Norfolk memo out in the first place was because the bureau made it a “national collection priority for all 56 field offices to collect whatever they could on the joint session and the inauguration.” She stated that the field offices not only followed procedure but also went “above and beyond” by disseminating it in three separate channels. But Hassan pushed back, asking why the alarm wasn’t elevated to the highest levels of leadership: “Who was the highest official within the FBI to be informed of the intelligence?” she inquired. Sanborn paused here, and proceeded to answer that she, like Wray, learned of the Norfolk report days after the Capitol attack occurred—adding the caveat that the report was “raw, unvetted information.” The FBI gets thousands of tips every day, Sanborn stated. “Not all of those get elevated to senior leadership.” Hassan was unimpressed. “Except that this was tips about violence at the United States Capitol where we were going to have all members of Congress, the current vice president, the vice president-elect …. [G]iven the gravity of the threat, it is very hard to understand why somebody didn’t pick up the phone,” she responded. Sen. Jacky Rosen echoed these concerns, asking why the FBI “did not alert local law enforcement about the possible violent insurrection in a matter more consistent with the gravity of the threat on our homeland.” Sanborn reiterated that even though the information was unverified, it was quickly disseminated to state and local partners, and she again recounted the three channels through which the FBI circulated the Norfolk intelligence. Some senators, meanwhile, asked more about the specifics of the bureau’s social media monitoring. At one point during the hearing, Sen. Kyrsten Sinema questioned Sanborn on whether the FBI was aware of online conversations that showed coordination ahead of the Jan. 6 attack. Sanborn said no, and she stated that the FBI does not monitor publicly available social media conversations without an already-predicated investigation that allows the bureau to gather communications information. Sinema also pushed Sanborn to elaborate on how the FBI acted on and shared the Jan. 5 intelligence that there were armed protests planned at all 50 state capitols across the country. Sanborn responded that she did not recall, but she promised to get back to the senator later. Finally, Sen. Gary Peters asked Sanborn to explain surveillance differences between the FBI’s monitoring of protests in the summer of 2020—during which the FBI reportedly deployed a “state of the art surveillance plane” to fly over the D.C. protests—and the pro-Trump protests, where no such plane was used. Sanborn noted that, while she didn’t have any specifics on the plane, “the counterterrorism division’s approach to both of those [protests] was not different.” At one point during the hearing, Sen. Mark Warner chastised both the Department of Homeland Security and the FBI for failing to adapt to better monitor domestic violent extremist activity online, stating: <blockquote> We can’t always be saying we’re going to do better next time when this threat has been around for years. It is not going to disappear with Donald Trump …. I had a number of senior conversations with FBI officials both on January 5th and January 6th where I was constantly reassured, don’t worry, we think from the FBI standpoint we’ve got this pretty well under control. That was not the case, and now we have the Capitol of the United States desecrated—and for our adversaries, from an intel standpoint, to the Vladimir Putins and the Xi Jinpings of the world, the images of the marauders across the whole world is going to be a price that we’ll be paying for many years to come. </blockquote> But Wray himself was asked none of these questions. And there are still other key questions that—at least as far as we know—no FBI official has been made by Congress to address. The first of these questions concerns the relationship between the number of predicated investigations of which Wray is publicly proud, on the one hand, and the FBI’s almost total lack of visibility into the planning for Jan. 6, on the other. On a live show two days before the insurrection, and one day before the Norfolk intelligence was transmitted, <a href="https://youtu.be/awMpdgU6XlQ?t=1160">one of us (Wittes) described</a>—based entirely on open-source media reporting—the situation as follows: “The Proud Boys are coming to Washington, as are a bunch of other people, on Wednesday. As best as I can tell, they seem to be a little less interested in Black churches this time than they were last time, a little bit more interested in attacking federal buildings and maybe storming Congress itself.” <iframe width="560" src="https://www.youtube.com/embed/awMpdgU6XlQ?start=1161" height="315" frameborder="0" allowfullscreen="" allow="accelerometer; autoplay; clipboard-write; encrypted-media; gyroscope; picture-in-picture"/> He went on, quite wrongly, to express confidence in the Capitol Police’s ability to repel whatever attack rioters might launch and to suggest that the would-be rioters did not understand what they were up against in trying to take on federal power at the Capitol. So the point here is not about the predictive perspicacity of the commentary. In fact, the point was sufficiently obvious that neither of the other two people on the show blanched for a moment at the prediction. The point, rather, is that the idea that Jan. 6 would involve an attempt to storm the Capitol was very much part of normal public discussion several days before the event. And it was by no means confined to social media traffic the FBI is rightly encumbered from following on a routine basis. In fact, the whole reason for confidence on Jan. 4 that the plot would fail was the assumption that the Capitol Police would be aware of plans and thus prepare appropriately, a premise that proved no less false for being entirely reasonable. Yet even as Wray congratulated himself for the bureau’s 2,000 predicated investigations of violent extremism, the FBI also contended that it had no specific insight into what was likely to happen on Jan. 6 until the day before the insurrection. These two points don’t sit well together. Can it really be that not one of the thousands of open investigations allowed the bureau to examine public social media postings that made the plan to storm the Capitol a matter of public knowledge and conversation? Can it really be that the restrictions on monitoring of public social media activity are so severe that plotting that took place in public and was the subject of open discussion on television and in newspapers was off-limits to the FBI? These contentions are too extravagant to warrant serious contemplation. Particularly given how many of the subsequent charges brought against rioters have involved alleged conspiracies and how quickly the FBI was able to uncover those conspiracies, it is quite clear that forewarning was available. But Wray did not have to answer this question. There’s a second key question that neither Wray nor Sanborn had to address—and that is the role of implicit bias in blinding the FBI to the gathering storm in the run-up to Jan. 6. It is simply unimaginable that, if a group of American Muslims sympathetic to the Islamic State were tweeting about storming the Capitol and mustering by the thousands in Washington using violent rhetoric similar to that used by the insurrectionists, the bureau’s intelligence efforts would have been so anemic. It is even more unthinkable that, had a similar attack taken place at the hands of domestic self-radicalized Islamist extremists, Wray would appear before the Judiciary Committee and congratulate himself that he had 2,000 open investigations and that the bureau had managed to send some raw intelligence to the Capitol Police with a day to spare. It is even more unthinkable that the FBI director would consider it acceptable that he had not been briefed on this intelligence when it emerged and neither had his counterterrorism chief. And it is, finally, completely unthinkable that, if the FBI director had the gumption to make such claims before the Senate Judiciary Committee, senators would swallow it whole. Yet, as former FBI official <a href="https://youtu.be/qblzG8PTirU?t=1674">Peter Strzok put it the other day</a>, “Any time you have an organization that is made up largely of white conservative males, there is always, I think, a question about whether or not you are going to take it easy on white, conservative males.” Yes, there is. And more generally, there is a question about whether the FBI’s culture is as sensitive to the dangers that can flow from the violent fulminations of conservative white men as it is to the dangers of similar fulminations from Islamist extremists. But Wray did not have to address this delicate point—because nobody asked. The problem here is not that the FBI has failed, as Wray put it, to bat 1000. It is that the bureau failed spectacularly on a matter of the highest possible stakes on which there was every reason to think success was achievable, and that it does not appear to understand the magnitude of its failure or to be interrogating the reasons for it. That is bad. How much worse is it that senators do not appear inclined to force officials to confront these questions? </center>

Topics:

Criminal Justice & the Rule of Law Democracy & Elections

Tia Sewell

@tia_sewell

Tia Sewell is a former associate editor of Lawfare. She studies international relations and economics at Stanford University.

Benjamin Wittes

@benjaminwittes

Benjamin Wittes is editor in chief of Lawfare and a Senior Fellow in Governance Studies at the Brookings Institution. He is the author of several books.

The Questions FBI Director Christopher Wray Wasn’t Asked

Tia Sewell

Benjamin Wittes

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