Prevent Defense

by Jeffrey Rosen | September 6, 2004

The FBI's Strategic Information Operations Center, known as sioc, occupies more than 40,000 square feet on the fifth floor of the Bureau's headquarters in Washington, D.C. It was set up in 1998 as a clearinghouse for intelligence about terrorism collected throughout the federal government, and Attorney General John Ashcroft and FBI Director Robert Mueller camped out here in the weeks following September 11. At the heart of sioc is the Joint Terrorism Task Force, which operates out of a windowless conference room containing a big-screen television tuned to CNN and several banks of secure computer terminals. Digital clocks display the local time in Riyadh, Baghdad, and Morocco, and there is a poster of a bearded Saddam Hussein, on which someone has scrawled, "Any questions?" While a federal railroad policeman discusses threats over the phone with railroad officials, representatives from the Transportation Security Administration and the Citizenship Immigration Services scan databases for signs of trouble. "This room supports the number- one priority of the FBI, which is the prevention of terrorist acts," Roger Morris, the unit chief, told me. "We're tracking suspicious activity at federal monuments and analyzing the incidents reported by local police."The Joint Terrorism Task Force represents something of a sea change for the FBI. "We used to wait until the crime is committed. Now we're trying to prevent it before it occurs," Morris explains. The Joint Terrorism Task Force was designed to allow federal officials who had previously been forbidden from talking to one another to exchange intelligence about threats. It is the most visible symbol of the government's effort to address what the 9/11 Commission identified as a critical challenge in the age of terrorism: the need to share more information between law enforcement and intelligence officials. Since September 11, increased information-sharing has been the first element in the Justice Department's two-pronged strategy to prevent terrorism. The second element involves prosecuting suspicious individuals or groups quickly for low-level crimes rather than waiting years to build a more elaborate case. In many ways, the prevention strategy offers a new twist on an old prosecutorial tactic. Call it the Al Capone approach: Unable to prove that Capone was a mobster, the government prosecuted him for tax evasion instead. Now, the government is using similar tactics to take suspected terrorists off the streets before they can launch an attack. In principal, the Justice Department's new prevention strategy makes sense. But, in practice, it has had mixed results. Increasing the FBI's ability to engage in domestic surveillance and to share intelligence with domestic and international law enforcement officials has helped identify some terrorist plots before they are hatched, as the recent arrests of suspected Al Qaeda terrorists in Great Britain show. But, since September 11, the Bush administration has also used its new surveillance authority to prosecute or deport hundreds of people who have nothing to do with terrorism. This, in turn, has undermined political support for the war on terrorism in communities where support is crucial. In order to convince Congress to pass the intelligence reforms that the 9/11 Commission recommends--and that both presidential candidates have endorsed--the next president will need to show more restraint. New domestic intelligence powers should be focused exclusively on the investigation of suspected terrorists and not squandered on low-level criminals. The 9/11 Commission concluded that the September 11 hijackers were aided by a legal and political culture in Washington that discouraged the sharing of intelligence among the CIA, the FBI, and the Justice Department, each of which was more concerned about protecting its turf than connecting the dots. After September 11, the Bush administration resolved to tear down the wall between intelligence-gathering and law enforcement. On September 21, 2001, John Ashcroft ordered prosecutors to share with the FBI, the CIA, and other federal agencies any information that might "increase the possibility that any threatened action can be disrupted or prevented." And provisions of the USA Patriot Act removed some of the legal barriers that had prevented the FBI, the Justice Department, and the CIA from sharing information obtained through domestic and foreign surveillance. At the same time, Ashcroft and Mueller claimed they were reorganizing their departments to focus on the prevention and disruption of terrorism, as opposed to investigation and after-the-fact prosecution. Although the prevention model has been presented as a revolutionary change, it relies on a technique that prosecutors and FBI agents have long deployed: the Al Capone strategy. "I don't see this as a major paradigm shift; it's just that counterterrorism is our top priority," says Thomas Fuentes, director of the FBI field office in Indianapolis. "Because we were so successful in fighting domestic organized crime, we're now using those same techniques in this arena as well." If the prevention strategy had been in place prior to September 11, the government might, in theory, have been able to disrupt the Al Qaeda plot. The 9/ 11 Commission specifically noted the usefulness of detaining dangerous suspects like Zacarias Moussaoui on immigration violations. It also found that, as early as 1999, in their investigation of the USS Cole bombing, intelligence agencies detected the travel of September 11 hijacker Khalid Al Mihdhar and saw his travel converge with that of another hijacker they could have identified but didn't--Nawaf Al Hazmi. Because the FBI's intelligence agents were confused about the rules governing the sharing of information about Mihdhar, they failed to alert FBI criminal agents who knew about Al Qaeda. Had they done so, the Commission concluded, both Hazmi and Mihdhar could have been held for immigration violations or as material witnesses in the Cole bombing case, and further investigation of their travel could have revealed their connections to other hijackers. "The simple fact of their detention" on low-level charges, the Commission noted, "could have derailed the plan." Since September 11, the Al Capone strategy has worked several times in terrorism cases: In Charlotte, North Carolina, in 2002, for example, members of a Hezbollah cell were convicted not of providing support for terrorists but of smuggling cigarettes to avoid paying state taxes. In a Portland, Oregon, terrorism case, the wife of one of the suspects pled guilty to money-laundering charges in connection with sending her husband cash overseas. These cases show the benefits of the Al Capone strategy: All of the accused were tied closely enough to terrorist activities to be worth getting off the streets by any means necessary. But the techniques designed to fight organized crime pose new risks when applied to terrorism. Unlike organized crime, where the government has a fairly good idea of who the dangerous individuals are, terrorists are organized less hierarchically and rarely reveal their murderous intentions until it is too late. There is always a danger, therefore, that, in prosecuting individuals for immigration offenses or other low-level crimes, the government may be deporting or detaining people with no connection to terrorism. Since September 11, this is exactly what has happened. A comprehensive tracking study by Syracuse University in December 2003 found that the Justice Department had overstated the number of terrorism-related convictions by creating a new category after September 11 called "Anti-Terrorism," which includes immigration offenses, identity theft, and drug cases "intended to prevent or disrupt potential or actual terrorist threats where the offense conduct is not obviously a federal crime of terrorism." According to the Syracuse study, only half of the more than 6,400 "terrorist and anti-terrorist" matters referred to prosecutors by investigative agencies in the two years after September 11 involved actual acts of international or domestic terrorism. (Moreover, the median sentence in international terrorism cases won by the Justice Department was only two weeks.) Prosecutors insist that cracking down on non-terrorists for identity theft or immigration offenses makes it harder for real terrorists to get false identification or to enter the country illegally. "When we go after people for selling false documents, social security fraud, or visa fraud, these are not terrorist cases in the pre-9/11 ... model, but these are people who are weakening our infrastructure ... in ways that make it possible for these plots to occur," says Christopher Wray, the deputy attorney general in charge of the Criminal Division at Justice. Nevertheless, there are many prosecutions under the Patriot Act and the prevention strategy that have no direct, or even indirect, connection to terrorism. A report by the General Accounting Office found that nearly half of the cases the Department of Justice classified as resulting in "terrorism- related" convictions in 2002 had been misclassified and, in fact, had nothing to do with terrorism. For example, two New Jersey grocery store operators were convicted of accepting boxes of stolen breakfast cereal 16 months before the September 11 hijacking. In a recent Las Vegas case called "Operation G-String," prosecutors invoked the money-laundering provisions of the Patriot Act to investigate alleged payoffs to local politicians from a strip club owner. What's more, the 9/11 Commission noted that, of the 768 aliens arrested as "special interest detainees" and lawfully held on immigration charges, 531 were deported, 162 were released on bond, and only eight--including Moussaoui--were remanded to the U.S. Marshall Service as terrorism suspects. The Justice Department's inspector general criticized the treatment of the detainees, and other critics of the prevention strategy, such as David Cole of the Georgetown University Law Center, note that, of the nearly 5,000 foreign nationals detained since September 11 on immigration charges, only three were actually charged with any terrorism-related crime. Of those, two were acquitted of terrorism charges in Detroit and the conviction of the third is under a cloud because prosecutors failed to turn over to the defense evidence that a witness lied on the stand. "If you look at the sum total of all these immigration measures that John Ashcroft used since 9/11, you're hard-pressed to find any actual terrorists who have been identified," Cole says. Defenders of the prevention approach counter that, if you commit a felony, you have no right to complain about being prosecuted. But using the Patriot Act to bring low-level charges in cases that have nothing to do with terrorism unnecessarily alienates local officials and citizens whose support is critical to waging the war on terrorism. In Georgia and Maryland, local police officers have complained that resident aliens now view them as immigration law enforcers and are more reluctant to call the police to report crimes or other suspicious activity. "Enforcing immigration regulations has created an invisible barrier between the police and the people in precisely those communities that need the most interaction," says Dennis Kenney, a professor of criminal justice at John Jay College in New York City. Kenney also notes that the expansion of Patriot Act investigations into areas unconnected to terrorism can produce a political backlash. Kenney describes being at a meeting where federal officials were promoting the Patriot Act to local police. "Very politely, the assistant chief from Las Vegas pointed out that, just as he was buying into the Patriot Act and telling his citizens about its value, federal prosecutors began employing their increased authority in run-of-the-mill domestic violence cases and in investigating city officials," Kenney says. "This was seen in the press as an abuse of power--the thing was sold as a way of catching terrorists, but local folks started to see it as a means to catch everyone else." For this reason, state and local officials seem less enthusiastic about the prevention paradigm than their counterparts in Washington. Four states and nearly 330 local governments have passed resolutions objecting to the Bush administration's use of the Patriot Act and its efforts to enlist local officials in the war on terrorism. For example, the district attorney in Portland, Oregon, insisted that state law banned his city's police from apprehending people who had violated only immigration laws or from collecting information on the political beliefs of citizens, except as part of a criminal investigation. Daniel Richman of Fordham Law School offers a political explanation for this resistance: Local police forces get none of the credit for the success of federal antiterrorism efforts but are blamed for any local excesses. What's more, local law enforcement officials continue to be evaluated on traditional prosecutions rather than on their contributions to a broader intelligence effort. These problematic incentives also persist at the federal level, where FBI agents are still judged on convictions rather than intelligence successes, a fact that worried the 9/11 Commission. "We are concerned," the Commission noted in its report, "that management in the [FBI] field offices still can allocate people and resources to local concerns that diverge from the national security mission. This system could revert to a focus on lower-priority criminal justice cases over national security requirements." In other words, diverting domestic surveillance to lower-level crimes is bad terrorism policy as well as bad politics. The 9/11 Commission concluded that waging an effective war on terrorism will require renewing some of the Patriot Act provisions that are due to expire and also on consolidating authority for information collection and dissemination under a single national intelligence director. But, despite the endorsements of President Bush and John Kerry, its recommendations are being resisted not only by turf-conscious federal bureaucrats but also by the libertarian conservatives and civil libertarian liberals in Congress. These congressional skeptics came within one vote on July 8 of repealing Section 215 of the Patriot Act, which gives government broad authority to search libraries, businesses, and medical records. In order to alleviate the libertarians' legitimate fears, the next president, whoever he is, will have to take a less polarizing approach than Bush has so far. Intelligence analysts need to cooperate with law enforcement officials. But the president needs to emphasize that broad surveillance authority will only be used against suspected terrorists, not ordinary suspects. By doing so, he could reassure critics and make America safer at the same time.

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