Published by The Lawfare Institute
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Darren E. Tromblay has served the U.S. Intelligence Community, as an Intelligence Analyst, for more than a decade. He is the author of The U.S. Domestic Intelligence Enterprise: History, Development, and Operations (Taylor & Francis, 2015) and co-author of Securing U.S. Innovation (Rowman & Littlefield, 2016). Mr. Tromblay has been published in Lawfare, the Hill, Small Wars Journal, and Intelligence and National Security. He holds an MA from the George Washington University’s Elliott School of International Affairs, an MS from the National Intelligence University, and a BA from the University of California. Mr. Tromblay can be reached at [email protected]. The views expressed in this essay are entirely his own and do not represent those of any U.S. government or other entity.
Recrimination or Reform? The FBI’s Current Crisis Is Not the Bureau’s Biggest Problem
by Darren E. Tromblay MA, MS
The Federal Bureau of Investigation is once again the target of intense criticism for its questionable judgment. At the center of the latest storm is its handling of issues pertaining to the 2016 presidential election. Outrage has now reached a new decibel level, with the announcement by Department of Justice’s Office of the Inspector General (IG) that it will be initiating a review into allegations with a nexus to both the Bureau’s Director and Deputy Director. This, however, is only the latest in a series of post-9/11 missteps that have ranged from technology (e.g. Virtual Case File) to human capital (a counterterrorism head who did not know the difference between the Sunni and Shia sects of Islam). mission. Rather than engage in punitive finger pointing and recrimination, U.S. national security would be much better served by an examination of the FBI’s underlying structural deficiencies that have undermined its efforts to reform and evolve.
Two major faults have compromised the FBI’s development. The first is its lack of a defined mission. First, the FBI has no formal charter (although Congress—between 1978 and 1980—gave consideration to the matter although the proposal would not have covered the entire organization). Second, the Bureau’s conceptualization of national security has not kept pace with the United States’ needs. While U.S. policymakers require information that will provide them with an informational advantage, the FBI—despite its post-9/11 measures—remains a fundamentally reactive agency. In this void, it has attempted to define itself by function, rather than objective. Under then-Director Robert Mueller III, it presented itself as a bifurcated intelligence and law enforcement organization. More recently its identity has become an ungainly “intelligence-driven and a threat- focused national security organization with both intelligence and law enforcement responsibilities.”
The lack of a charter creates problems for the FBI—and its customers—in several ways. First, it has resulted in evolution by aggregation—rather than assuming functions that fit within a defined framework, the Bureau has accumulated such a diverse set of missions that it cannot establish a coherent corporate culture. The nuanced discipline of counterintelligence, the methodical approach of intelligence collection in furtherance of a criminal investigation, and the physical preparedness of the Hostage Rescue Team are alike only in the lowest-common-denominator of stopping threats. (An interesting thought experiment is that the Department of Homeland Security has been ridiculed for combining 22 different agencies but the FBI is in a similar position of herding functions, if not agencies.) It is difficult to identify and excise the elements that are only marginally-related to a central mission if that mission does not exist.
Although the FBI’s lack of a formal charter is the most extreme example, vagueness of mission is a shortcoming of multiple U.S. agencies with intelligence responsibilities. For example, the Central Intelligence Agency (CIA) can point to the National Security Act of 1947 as its founding document, the legislation was little more than an acknowledgement that the United States needed a foreign intelligence service, rather than a detailed delineation of the agency’s roles and organization (a problem exacerbated by the clause allowing for “other functions and duties related to intelligence”). More recently, the formation of the Department of Homeland Security (DHS) was the recognition of a perceived need—rather than a well-though-through effort—to address national security needs. Both agencies were responses to crises triggered by intelligence failures (Pearl Harbor for the CIA and the attacks of September 11 for DHS) and, consequently, the vividness of the need to respond took priority over how to respond. However, unlike the FBI, both of these agencies are enshrined as a concept in legislation. This provides at least a modicum of focus for their actions, unlike the Bureau, which began as a detective bureau for the Department of Justice and has incrementally expanded to become a member of the U.S. intelligence community.
The overstretched FBI—a mile wide and an inch deep—cannot emphasize subject matter expertise. With so many missions within one agency, it should not be a surprise that Bureau executives’ biographies are accounts of ricocheting between disparate divisions in search of the next promotion. Ambition is not necessarily a bad thing. However, allowing movement across such a far-flung field of disciplines does nothing to enhance expertise necessary to comprehend and lead in an arcane discipline (and the Bureau is certainly known for arcane disciplines). Furthermore, the wide array of responsibilities means that the FBI can too easily redirect resources toward the latest “shiny object” rather than maintaining awareness of a sustained issue. For instance, with the end of the Cold War, the FBI redirected several hundred agents, whose national security expertise was no longer considered relevant, to criminal work, only to reassign several hundred agents back to counterterrorism following the attacks of September 11. While terrorism did not go away during that decade (as indicated by the 1993 World Trade Center bombing, the Alfred P. Murrah Federal Building bombing in Oklahoma City, and the 1998 embassy attacks) the FBI’s resources did.
Reformed (Perhaps) but Still Reactive
The second issue for the FBI is an entrenched, reactive approach to the world around it. This dates to its founding in 1908, as an agency focused on rooting out political corruption which then grew to take on a variety of duties vis-à-vis both foreign and domestic national security threats. (Any of the Bureau’s operational activities—whether under the National Security Branch or the Criminal Intelligence Division—should be considered to be “national security” in nature, since they all preserve the integrity of U.S. elements of national power.) However, by 1947, U.S. policymakers recognized that they needed a proactive approach to intelligence, while the FBI continued to operate in reaction to identified threats. Its current structure cements this vision, with “counterterrorism”, “counterintelligence”, and “criminal investigative” divisions. Furthermore, the Threat Review and Prioritization (TRP) by which the Bureau identifies the issues of greatest significance has been the target of criticism by both the Department of Justice’s IG and the 9/11 Review Commission. TRP is a parochial process which seems to decouple the Bureau from the National Intelligence Priorities Framework, rather than integrating the FBI into the Intelligence Community.
The FBI may be fundamentally unable to substantially reform its approach to intelligence. In one of several efforts to make the Bureau more intelligence-oriented in the decade after 9/11, Mueller characterized the FBI’s intelligence mission as moving from “thinking about ‘intelligence as a case’ to finding ‘intelligence in the case’”. However, indicators of interest may not be located in a case, which—by first focusing on malfeasance—rules out the opportunity for identifying data which may not be nefarious but nonetheless of value in providing policymakers with an informational advantage. Mueller remained anchored to the concept that cases—and thus reactivity—provided the framework for the FBI. Speaking in 2008, he referred to new human intelligence (HUMINT) collectors as filling the “spaces between the cases”. Aside from being abysmally trite, this comment made collection beholden to cases—which defined the landscape—rather than predicated on intelligence requirements.
As an agency that thinks first about the concept of “threat”—and then about the type of threat—it has little institutional use for subject matter expertise. Enlightened managers may individually appreciate the strengths of employees but this is no match for the oft-cited “needs of the Bureau”. As noted previously, agents skilled in one area may be redirected toward an unrelated issue. This indifference to expertise has severely damaged the Bureau’s analytic corps as well. Historically, analyst positions were filled indifferently—sometimes given to individuals who lacked basic college educations—a problem which the FBI’s Office of Intelligence attempted to remedy after September 11, by requiring existing analysts to reapply for their positions. However, the Office’s initiative was canceled prior to completion. This failure to demand credentials arguably had a negative impact on the workforce, indicated by the Department of Justice IG’s determination that newly hired analysts with the highest education were also the most likely to leave. When bodies, rather than brains, are the priority, these conditions are unlikely to change.
The FBI does have the capability and the responsibility to conduct positive intelligence collection, which makes its reactive posture even more unacceptable. The Attorney General’s Guidelines for Domestic FBI Operations explicitly identify the Bureau as the “primary collector of foreign intelligence within the United States.” It was the FBI’s Cold War-era SOLO operation that provided significant reporting on the Sino-Soviet split, which was praised by a number of intelligence and policy officials. However, the FBI’s ability to collect information of non-threat-specific value has been stymied by multiple factors including TRP. According to the 9/11 Review Commission, field offices were penalized because, even though their collection activities addressed US intelligence community requirements and produced information that was included in the President’s Daily Brief, their efforts did not correspond with the TRP issues. The divergence between what is expected of the FBI—in terms of foreign intelligence collection—and the Bureau’s reticence to pursue this facet of its mission arguably leaves valuable opportunities unexploited.
Options for Restoring Effectiveness
The FBI is apparently incapable of identifying and remedying its fundamental failings (one need only look at the Strategic Execution Team initiative of 2008). Meaningful change will only come about if external institutions, notably Congress, shape (strong-arm?) the Bureau’s disparate elements into a more coherent agency. The FBI should—at its core—be premised on intelligence collection and exploitation. Collection—across the spectrum to identify both threats and opportunities—should be linked to the NIPF so that the FBI is working from the same point of reference as the IC. Intelligence should be exploited to serve strategic customers (e.g. policymakers) and tactical clients (e.g. law enforcement activities directed against specific targets). Furthermore, the Bureau should speak the same language. “National security”—protecting the integrity of U.S. elements of national power, should be a theme across programs, whether they are focused on state or non-state actors, foreign or domestic. Finally, the FBI should align its terminology with the IC—forensics are simply a form of “MASINT”, evidence functions as an “indicator”, Title III monitoring is “SIGINT”— to further speed the coalescence of culture both within the Bureau and with the IC and other agencies in the domestic intelligence enterprise.
In the longer term, the FBI should be incisively reduced in scope. It pre-dates a number of the agencies that constitute the domestic intelligence enterprise and maintains functions which are either redundant or are complementary to the missions of other agencies. For instance, the FBI’s Safe Streets Task Forces would fit equally well within the Bureau of Alcohol, Tobacco, Firearms, and Explosives or even the Drug Enforcement Administration. The Criminal Justice Information Services (CJIS) Division is better-suited to DHS, which has the bailiwick for the network of fusion centers and would the a natural home for the information-sharing functions for which CJIS is responsible. Similarly, there are functions for which a reformed Bureau should assume responsibility. Notably, the CIA’s National Resources Division, which conducts intelligence activities within the United States, would fit within an intelligence-oriented FBI as would DHS’ Homeland Security Investigations. This latter move would allow DHS—a similarly sprawling agency—to focus on its passive, protective functions (e.g. airport screening, border protection, monitoring critical cyber infrastructure.)
The IG review of recent FBI activities is one more unfortunate development in the FBI’s recent history. Rather than engage in a superficial rapping of knuckles, or a resource-devouring witch hunt, this latest episode should serve as the impetus for an examination of why the Bureau continues to founder, 15 years after the attacks of September 11. Two factors are at fault for the FBI’s current dysfunctionality. This first is the lack of a charter that can provide a point of reference for organizational decisions and for corporate culture. The second issue is an outdated approach to national security that emphasizes threats, at the expense of identifying opportunities that would provide decision-makers with an informational advantage. Reform—whether it occurs entirely within the Bureau or involves redistribution of Bureau components across the domestic intelligence enterprise—must emphasis intelligence – threat and opportunity-oriented—that serves strategic and tactical customers. Re-engineering the FBI for greater effectiveness, across national security missions, will also provide impetus to address similar issues that result from vagueness of function and organization in other elements of the U.S. Intelligence Community and in the broader U.S. domestic intelligence enterprise.