The FBI: Past, Present, and Future

Order Code RL32095 CRS Report for Congress Received through the CRS Web The FBI: Past, Present, and Future October 2, 2003 Todd Masse Specialist in Domestic Intelligence and Counterterrorism Domestic Social Policy Division William Krouse Analyst in Social Legislation Domestic Social Policy Division Congressional Research Service ˜ The Library of Congress The FBI: Past, Present, and Future Summary The Federal Bureau of Investigation (FBI) is the Nation’s premier law enforcement organization responsible for gathering and reporting facts and compiling evidence in cases involving federal jurisdiction. It has broad jurisdiction in federal law enforcement and in national security, and is a statutory member of the U.S. Intelligence Community. From its official inception in 1908, the FBI’s mission, jurisdiction, and resources have grown substantially in parallel with the real or perceived threats to American society, culture, political institutions, and overall security. In FY2003 the organization has approximately 26,000 employees, about 12,000 of whom are Special Agents. The FBI has had many successes in countering criminal and hostile foreign intelligence and terrorist activity in its storied history. However, in its zeal to protect U.S. national security, the FBI occasionally exceeded its mandate and infringed upon the protected rights of U.S. citizens. Currently, the FBI is undergoing a massive reorganization to shift its culture from reaction to crimes already committed to detection, deterrence and prevention of terrorist attacks against U.S. interests. The FBI continues to be a major domestic and international force in the war against terrorism. The FBI, one element of the U.S. Department of Justice, is led by a Director appointed by the President with the advice and consent of the Senate. The Director is appointed for a single 10-year term to insulate the investigative agency from tacit or perceived political pressures. The FBI Director is not a member of the President’s Cabinet, although he reports to one – the U.S. Attorney General. The current organizational schema of the FBI has three main elements: Headquarters, 56 Field Offices, and 45 Legal Attaches overseas. The degree of autonomy with which field offices have operated with respect to Headquarters has oscillated over time. Currently, Headquarters is assuming a more assertive role in directing field activities and demanding accountability, particularly with respect to the FBI’s national security responsibilities. While the FBI has long had counterterrorism as a top tier priority, the terrorist attacks of September 11, 2001 were a catalyst for developing a definitive list of ranked priorities. On May 29, 2002, counterterrorism became the FBI’s sole number one priority. Other major priorities include countering foreign intelligence activity directed against the United States, countering cybercrime, and working against public corruption. The FBI’s priorities continue to reflect its traditional law enforcement mission, but the FBI’s national security mission has assumed an unprecedented degree of prominence. In order to successfully implement its mission, the FBI has extensive relationships with other federal executive agencies, including other members of the U.S. Intelligence Community. It also has an important network of relationships with state and local law enforcement, and overseas law enforcement agencies and security services. Relevant pending bills include H.R. 1157, H.R. 2867, S. 410, S. 1158, S. 1440, S. 1507, and S. 1520. Issues for the Congress involve whether: (1) the FBI can sufficiently adapt its law enforcement culture to deter, detect, and prevent terrorism; (2) some of the FBI’s criminal jurisdiction should be devolved to state and local law enforcement; (3) a statutory charter for the FBI should be developed; and (4) the planned co-location of the FBI’s operational Counterterrorism Division with the newly formed Terrorist Threat Integration Center provides an opportunity for foreign intelligence entities to engage in domestic intelligence activities. Contents Brief History and Program Development . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Domestic Security and Counterintelligence . . . . . . . . . . . . . . . . . . . . . . 4 Organized Crime . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Domestic Extremism . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Counterterrorism . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 FBI Organization and Culture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Organization and Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 FBI Leadership . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Culture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 International Presence and Role . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Current Major Investigative Programs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 FBI Counterterrorism Program . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 The Wake Up Call . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 U.S. Vulnerability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Catalyst for a War of Indeterminate Duration . . . . . . . . . . . . . . . 21 FBI Counterintelligence Program . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 History . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 Imbalances Between Dissent and Subversion . . . . . . . . . . . . . . . 24 The Pendulum Swings Back: Oversight and Regulation . . . . . . . 26 Year of the Spy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 Post Cold War Counterintelligence . . . . . . . . . . . . . . . . . . . . . . . 27 FBI Criminal Enterprises, White Collar, Cyber and Other Federal Crimes . . . . . . . . . . . . . . . . . . . . . . . . . 29 Organized Criminal Enterprises . . . . . . . . . . . . . . . . . . . . . . . . . . 30 White Collar Crime and Public Corruption . . . . . . . . . . . . . . . . . 32 Cybercrime . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 Other Significant Crime . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 FBI Security Program . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 Pertinent Relationships . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 Investigative Relationships . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 Congressional Oversight Relationships . . . . . . . . . . . . . . . . . . . . . . . . 38 The FBI in Transition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 Issues for Congress . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 Appendix I: FBI Field Offices (By City Location) . . . . . . . . . . . . . . . . . . . . . . . 41 Appendix II: FBI Directors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45 Appendix III: FBI Legal Attache Offices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46 List of Figures Figure 1. FBI Appropriations FY1940-2004* . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Figure 2. Total Number of FBI Positions FY1940-2004* . . . . . . . . . . . . . . . . . . 4 Figure 3. FBI Headquarters Organizational Chart . . . . . . . . . . . . . . . . . . . . . . . 12 The FBI: Past, Present, and Future Brief History and Program Development The Federal Bureau of Investigation (FBI) is the lead agency in the Department of Justice (DOJ) which has the dual mission of protecting U.S. national security and combating criminal activities. As a statutory member of the U.S. Intelligence Community, it is charged with maintaining domestic security by investigating foreign intelligence agents/officers and terrorists who pose a threat to U.S. national security. The Bureau’s criminal investigative priorities include organized crime and drug trafficking, public corruption, white collar crime, and civil rights violations. In addition, the Bureau investigates significant federal crimes including, but not limited to, kidnaping, extortion, bank robberies, child exploitation and pornography, and international child abduction. The FBI also provides training and operational assistance to state, local, and international law enforcement agencies. The FBI’s expertise in national and international law enforcement may be taken for granted today.1 Because the organization had relatively little jurisdiction in its early years (a result of nascent federal criminal law development), the organization demonstrated substantial creativity in using its existing authority to combat criminal behavior. For example, in its infamous investigations into the organized crime and gangster activities of John Dillinger (and others) in the early 20th Century, the FBI (then known as the Bureau of Investigation) and Department of Justice relied on jurisdiction in more discrete areas of crime such as fugitive status and interstate motor vehicle theft to arrest and prosecute organized crime cases. More recently, the FBI has developed into a national investigative agency and established a national identification system, a uniform crime reporting system, as well as a forensic science program that are heavily relied upon by state and local law enforcement. Some would argue that by instituting rigorous law enforcement training and employment qualifications, the FBI ushered in an era of unprecedented professionalism in law enforcement. Moreover, as the forces of globalization became prominent in the late 20th Century, the FBI expanded its international influence by developing important relationships with overseas law enforcement and security services. These relationships continue to pay dividends in the war against terrorism2 today. The 1 An official history of the FBI can be found at [http://www.fbi.gov/libref/historic/historymain.htm]. See also Athan Theoharis, The FBI: An Annotated Bibliography and Research Guide (1994). 2 The term “terrorism,” as used in this report, means premeditated, politically motivated violence perpetrated against targets by sub-national groups or clandestine agents. The term “international terrorism” means terrorism involving citizens or the territory of more than one country. The term “terrorist group” means any group practicing, or which has significant (continued...) CRS-2 FBI’s recent arrest of a British national alleged to be smuggling shoulder fired missiles into the United States is an example of how its national and international cooperation with intelligence and law enforcement organizations is paying dividends.3 As an organization that has been at the forefront of law enforcement and domestic security in turbulent times, however, the FBI has also been through its share of difficult times. While the Bureau is considered one of the world’s premier investigative agencies and has had numerous successes implementing its criminal and national security missions, in recent years it has been criticized for its handling of a number of cases. These cases include the Waco and Ruby Ridge sieges, the Oklahoma City bombing documents, the Los Alamos National Laboratory espionage investigation, the Atlanta Olympic Park bombing investigation, the Robert Hanssen spy case,4 the degradation of the FBI crime lab, the improper use of confidential informants, and the failure to secure and upgrade the agency’s computer systems. The September 11, 2001 attacks, moreover, are widely viewed as a systemic intelligence failure of the U.S. Intelligence Community, of which the FBI is one component. Some Members of Congress have called for increased oversight and explored proposals to reform or, perhaps, dismantle elements of the FBI, transferring the agency’s domestic security functions to another agency that could possibly resemble Britain’s MI-5.5 2 (...continued) subgroups which practice, international terrorism. See Title 22, U.S. Code, §2656f(d). There are numerous definitions of terrorism found in U.S. law statutes and regulations. See CRS Report RS21021, “Terrorism” and Related Terms in Statute and Regulation: Selected Language, Sept. 26, 2001, by Elizabeth Martin. 3 See “FBI Arrests British Man in Alleged Missile Plot,” New York Times, Aug. 12, 2003. As early as May of last year, the FBI was alerting law enforcement to be on the lookout for potential terrorist activities involving shoulder-fired missiles. See “FBI Warns of Shoulder-Fired Missile Threat,” May 31, 2002, at [http:www.cnn.com]. In Nov. 2002 in Mombasa, Kenya, a chartered Israeli passenger plane was targeted with a man portable air defense (MANPAD) system. The rocket missed its target. See Thom Shanker, “Terror in Africa: Security Concerns, Ideal Terror Weapons – Portable, Deadly, Plentiful Missiles,” New York Times, Nov. 29, 2002, p. A32. The indictment of Hemant Lakhani can be found at [http://news.findlaw.com/cnn/docs/terrorism/uslakhani81103cmp.pdf]. 4 See A Review of the FBI’s Performance in Deterring, Detecting, and Investigating the Espionage Activities of Robert Philip Hanssen, Department of Justice, Office of the Inspector General, Report, Aug. 14, 2003. The unclassified executive summary of this report can be found at [http://www.usdoj.gov/oig/special/03-08/final.pdf]. 5 See the “Foreign Intelligence Collection Improvement Act of 2003,” (S. 410). See also CRS Report RL 31920, Domestic Intelligence in the United Kingdom: The Applicability of the MI-5 Model to the United States, May 19, 2003, by Todd Masse. S. 1520, the “9-11 Memorial Intelligence Reform Act,” proposes that the Attorney General, Director of National Intelligence (a proposed position), and the Secretary of Homeland Security provide a report to Congress which, among other factors, assesses the advisability of establishing a new domestic intelligence agency, and the experiences of other democratic nations in conducting domestic intelligence programs and activities. Similar recommendations were made in the Joint Inquiry Into Intelligence Community Activities Before and After the Terrorist Attacks of September 11, 2001, a report of the U.S. Senate Select Committee on (continued...) CRS-3 The FBI’s investigative jurisdiction has grown significantly over time, and it is governed by multiple congressional statutes.6 As this jurisdiction expanded, so too did the organization’s budget and employees. From 1940 until FY2003, the FBI’s total numbers of employees increased from roughly 2,400 to about 26,000, as its budget increased from $9 million to more than $4 billion.7 Figures 1 and 2 below depict the extent to which the FBI budget and numbers of employees increased over time. Figure 1. FBI Appropriations FY1940-2004* 5,000 $ Million 4,000 3,000 2,000 1,000 0 1940 1950 1960 1970 1980 1990 2000 2001 2002 2003 2004 Current $ Cons tant 03 $ * Fiscal Year 2004 is a requested amount. 5 (...continued) Intelligence and the U.S. House Permanent Select Committee on Intelligence, Dec. 2002. 6 For general information on FBI jurisdiction see U.S. Code, Title 18 (Crimes and Criminal Procedure), §3052; U.S. Code Title 28, (Judiciary and Judicial Procedure),§533; and Title 28 Code of Federal Regulations, §0.85. 7 The FBI’s request for FY2004 is $4,639,569.00. See FBI Budget Submission: Estimates for Fiscal Year 2004. CRS-4 Figure 2. Total Number of FBI Positions FY1940-2004* 30,000 25,000 20,000 15,000 10,000 5,000 19 40 19 50 19 60 19 70 19 80 19 90 20 00 20 01 20 02 20 03 20 04 * 0 Source: Annual appropriations, and Athan G. Theoharis, et al., FBI: A Comprehensive Reference Guide. Gross Domestic Product Deflators for current (FY2003 = 1.00) dollar adjustments were derived from Budget of the U.S. Government: Fiscal Year 2004, Historical Tables, Office of Management and Budget. * Fiscal Year 2004 is a requested amount. What follows in this section is a functional and chronological summary of the major elements in the historical development of the FBI. Domestic Security and Counterintelligence. Since its inception in 1908,8 the Bureau’s domestic security and counterintelligence missions have expanded and contracted to meet internal and external exigencies. At times, maintaining a proper balance between national security and preserving constitutional rights – particularly those guaranteed under the First, Fourth, and Fifth Amendments (freedom of speech and assembly, protection against unreasonable search and seizure, and due process) – has been a difficult proposition for the FBI in particular and for the federal government as a whole. Toward the end of the First World War, civil unrest and a series of bombings prompted the Department of Justice, and its Bureau of Investigation (BI), to monitor and arrest persons suspected of being anarchists, Bolsheviks, socialists, or of other radical political beliefs under the 1917 Espionage Act and the 1918 Immigration Act. The Bureau participated in round ups of draft dodgers (“slackers”) as well. In the 8 Attorney General Charles J. Bonaparte established the Bureau of Investigation in 1908, when the Department of Justice hired 10 investigators who had previously worked as U.S. Secret Service agents. Bonaparte was prompted to hire the investigators, because a rider in an appropriations bill prohibited Justice from borrowing Secret Service agents from Treasury for investigations. See S.Rept. 94-755, Supplementary Detailed Staff Reports of Intelligence Activities and the Rights of Americans, Book III, Final Report of the Select Committee to Study Governmental Operations with Respect to Intelligence Activities, U.S. Senate, (Washington, Apr. 23, 1976), 989 p. (Hereafter cited as the Church Committee Report) CRS-5 1920s, roundups of non-citizens suspected of subversion, known as “Palmer raids” (named after former Attorney General Alexander Mitchell Palmer [1919-1921]) enjoyed public approval in the popular press, but later proved controversial with revelations of civil rights violations and wrongful deportations. As a Justice Department Attorney, J. Edgar Hoover headed the Department’s General Intelligence Division, and played an integral role in these roundups and deportations.9 As the tide of public opinion turned against the federal government’s anti-Red tactics, Hoover successfully distanced himself from these policies. Incoming Attorney General, Harlan Fiske Stone, appointed Hoover acting and, then, permanent Bureau Director in 1924. Hoover approached his new job with zeal and is largely credited with remaking the Bureau by, among other factors, standardizing some facets of BI operations and basing appointments and promotions on merit, rather than political connections. Moreover, Hoover promoted the Bureau’s public image by pursuing high-profile “public enemies” – depression era bank robbers and gangsters. In 1933, the Bureau of Investigation was renamed the Division of Investigation. In 1935, it was renamed the Federal Bureau of Investigation (FBI). In 1936, President Franklin Delano Roosevelt charged the FBI with investigating subversive activities as political unrest in Europe spilled over into America.10 Such operations were aimed at not only fascist organizations like the pro-Nazi German – American Bund, but at the Communist Party USA and other leftist organizations as well.11 The end of the Second World War did not bring about a reduction in FBI domestic security investigations. Instead, they increased as U.S.-Soviet tensions mounted with revelations that U.S. atom bomb secrets were betrayed to the Soviets and allegations that high-ranking U.S. officials may have been communist agents.12 As a result, wartime domestic security operations were carried 9 Numerous books have been written about Director Hoover. A select few include: Richard Gid Powers, Secrecy and Power: The Life of J. Edgar Hoover (1987), and Curt Gentry, J. Edgar Hoover: The Man and the Streets, 1991. 10 Among other legal authorities, the FBI’s jurisdiction to conduct such investigations was included in appropriations act language that allowed the Secretary of State to request such investigations. Then Secretary of State, Cordell Hull, consented. See Church Committee Report. 11 In addition, President Roosevelt accepted a proposal from Director Hoover to station FBI agents in Latin America as intelligence operatives as part of the FBI’s Special Intelligence Service in 1939. About 360 FBI agents were stationed in Latin America during the Second World War as intelligence operatives. Such postings, however, exacerbated the growing rivalry between Hoover and William J. Donovan, the founder of the wartime Office of Strategic Services (OSS) – the forerunner of the Central Intelligence Agency. The FBI pulled out of Latin America at the end of the war, and foreign intelligence and espionage matters were ultimately given to the Central Intelligence Agency, when that agency was established in 1947. See Athan G. Theoharis, with Tony G. Poveda, Susan Rosenfeld, and Richard Powers, The FBI: A Comprehensive Reference Guide (2000). 12 For an historical perspective on this era, see Ellen Schrecker, The Age of McCarthyism: A Brief History with Documents (1994), Walter Goodman, The Committee: The Extraordinary Career of the House Committee on Un-American Activities (1968), and (continued...) CRS-6 over into peacetime. The FBI investigated “atomic spies” Ethel and Julius Rosenberg, and the trial subsequently took place in 1950-1951. The trial resulted in the execution of both Julius and Ethel for committing espionage against the United States on behalf of the Soviet Union. Director Hoover opposed the execution of Ethel Rosenberg warning that the public would be averse to taking the life of a woman and a mother.13 From 1956 through 1971, the FBI conducted an intensive and largely successful domestic security operation to neutralize, among other groups, the Communist Party USA. Since the Party was viewed by many to be under direction of Soviet agents, the FBI considered such investigations to fall under the rubric of the Bureau’s counterintelligence program (hence COINTELPRO). During COINTELPRO, the FBI used wire taps, listening devices, break ins, and other means of covert surveillance – investigative techniques considered legitimate for “national security” purposes. Other techniques were more questionable, among those used against civil rights leaders, including Dr. Martin Luther King, Jr. – the leader of the Southern Christian Leadership Conference. The FBI also monitored a wide range of antiVietnam war activists. As the line between dissent and sedition blurred, the American public was alarmed by allegations that the FBI was violating the constitutional rights of citizens. Former FBI Director Hoover died on May 2, 1972, on the eve of the Watergate scandal. The Watergate hearings, along with the COINTELPRO revelations, focused attention on FBI abuses of power. Following two acting directors, Clarence Kelley, a former FBI Agent and Kansas City, Missouri police chief, was appointed FBI Director (1973-1978). A career law enforcement professional, Kelly is credited with restoring public faith in the FBI by instilling greater discipline in its ranks and providing enhanced operational oversight. Following Watergate, the Senate Select Committee to Study Government Operations and the House Select Committee on Intelligence, known respectively as the Church and Pike Committees for their Chairs – Senator Frank Church and Representative Otis Pike – held a series of hearings examining the operations of U.S. intelligence agencies, including FBI domestic security and counterintelligence investigations.14 At the time of the hearings, (1976), Attorney General Levi promulgated new domestic security guidelines which established parameters within which it would be permissible for the FBI to conduct investigations into the “...use of force or violence in violation of federal law to overthrow the government or interfere with the activities of a foreign governments within the United States, to substantially impair the federal government in order to influence its policies, or to deprive others of their civil rights.”15 Watergate and other intelligence community 12 (...continued) Howard Zinn, A People’s History of the World: 1492 to Present (2003). 13 Richard Gid Powers, Secrecy and Power: The Life of J. Edgar Hoover, p. 304. 14 For Church Committee findings regarding the FBI, see the Church Committee Report. 15 U.S. Congress FBI Domestic Security Guidelines: Oversight Hearings Before the (continued...) CRS-7 abuses led to increased congressional oversight through the establishment of House and Senate Select Committees on Intelligence and development of executive guidelines and legislation for electronic surveillance.16 Notwithstanding the abuses of the 1960s, the FBI had many successes in countering espionage activities conducted by U.S. citizens on behalf of the Soviet Union. Some of the higher profile Soviet espionage cases during this decade involved William Kampiles (a CIA employee), Christopher Boyce (an employee of defense contractor TRW, Inc.), and Edwin G. Moore, II (a retired CIA employee).17 During the 1980s, foreign intelligence agencies still aggressively engaged in espionage against the United States, despite the fact that much of their support in the guise of Communist and Socialist movements in the United States had been greatly diminished. In 1985, known as the “Year of the Spy,” U.S. officials uncovered several spies – most of whom were motivated by greed rather than ideology. In the 1990s both the FBI and the CIA again found themselves penetrated by employees working on behalf of the Soviet Union, and the successor Russian Federation. Aldrich Ames (CIA) and Robert Hanssen (FBI), both of whom worked at one point in Soviet counterintelligence, committed espionage and did substantial damage to U.S. national security. Their activities even led to the death of agents working on behalf of the U.S. Government against the Soviet Union and Russia. In the late1990s, the FBI was criticized for its handling of the Los Alamos National Laboratory (LANL) investigation, a case involving Wen Ho Lee, a cleared employee of LANL’s sensitive “X” Division. After an embarrassing government case in which 58 of 59 counts18 of an indictment alleging espionage and inappropriate treatment of classified information were dropped, Wen Ho Lee pled guilty to one count of unlawfully collecting and storing classified information related to national defense for which he was sentenced to time already served during pretrial detention and released. Organized Crime. In the late 1920s and 1930s the United States economy went from boom to bust, as a period of relative wealth gave way to the great depression. As the depression took hold, and joblessness soared to 25%, lawlessness that had begun in the era of Prohibition swept across the country. Gangsters notorious for bank robbing, kidnaping and other illegal activities became the FBI’s primary focus. As mentioned above, because the FBI did not have broad jurisdiction to combat organized crime at the time, it effectively and efficiently used those 15 (...continued) Subcommittee on Civil and Constitutional Rights of the Committee on the Judiciary, House of Representatives, 98th Congress, April 27, 1983, p.60. 16 The two primary legal authorities governing electronic surveillance are Title III of the 1968 Omnibus Crime Control and Safe Streets Act (18 USC, §2510 et seq.) for criminal authorities, and the Foreign Intelligence Surveillance Act (50 USC, §1801 et seq) for foreign intelligence authorities. 17 For a summary of espionage cases, see CRS Report 93-531, Individuals Arrested on Charges of Espionage Against the United States Government: 1966-1993, Revised May 27, 1993, by Suzanne Cavanagh (available from the authors of this report). 18 The indictment can be located at [http://www.fbi.gov/pressrel/pressrel99/indictmenta.pdf]. CRS-8 statutes that were available to it, such as the Federal Kidnaping Act passed by Congress in response to the famous Lindbergh kidnaping case in 1932 and the National Motor Vehicle Theft Act, which made it a federal crime to transport a stolen car across state lines, to combat gangsterism. In what some consider the heyday for the FBI, the organization successfully neutralized the activities of such infamous criminals as Bonnie and Clyde, John Dillinger, Charles Arthur (“Pretty Boy”) Floyd, and George (“Machine Gun”) Kelly during this turbulent era.19 During the late 1950s and 1960s, the FBI conducted a series of high profile investigations to combat organized crime. For many years, Director Hoover discounted the existence of organized crime – national criminal syndicates, and avoided narcotics investigations.20 Congressional hearings, however, confirmed the existence of the Mafia and other organized crime syndicates. In the 1960s, at the direction of Attorney General Robert Kennedy, the FBI investigated Jimmy Hoffa and the Teamsters for alleged mob ties. In 1970, Congress passed the Racketeer-Influenced and Corrupt Organizations (RICO) Act (P.L. 91-452), giving the FBI and other federal law enforcement agencies new statutory laws by which they could prosecute professional criminals. RICO enlarged the range of civil and criminal penalties which may result from commission of federal and state crimes.21 In 1978, President Jimmy Carter appointed Judge William H. Webster as FBI Director. Judge Webster successfully employed the RICO provisions to combat New York City’s entrenched mob families. In the “Pizza Connection” case, the Gambino family was prosecuted successfully. In another operation, the FBI investigated and supported the successful prosecution of the Raymond Patriarca, Jr. family in New England. The FBI also initiated undercover operations during which they used middlemen to lure public figures into taking bribes. These investigations, known as ABSCAM, were controversial, even though they eventually led to the successful prosecution of one Senator and six Members of the House of Representatives, among others. Domestic Extremism. During the 1980s and the 1990s, the FBI and other federal law enforcement agencies encountered an assorted array of groups opposed to the federal government and mainstream American society. These groups ranged from the militia movement to white supremacists inspired by the racial doctrines of the Nazis and the Ku Klux Klan. Among others, they included the Posse Comitatus, the Aryan Nations, the Silent Brotherhood, the Order, and the Christian Identity Movement. As white supremacists, some of these groups anticipated a race war in the United States as portrayed in William Pierce’s novel, The Turner Diaries. Yet 19 For a summary of various high profile cases, see [www.fbi.gov/libref/historic/famcases/famcases.htm]. 20 It is reputed that J.Edgar Hoover shunned drug investigations, because he feared the corrupting effects that narcotics, like alcohol during Prohibition, might have on FBI Special Agents. In part, this led to the formation of the Drug Enforcement Agency as a separate agency for drug control within the Department of Justice. Drug control did not become a priority for the FBI until 1987. See Ronald Kessler, The FBI, 1993. 21 See CRS Report RS 20376, RICO: An Abridged Sketch, updated May 6, 2002, by Charles Doyle. CRS-9 another group, the Branch Davidians anticipated the apocalypse, though they were not white supremacists. The FBI adopted special tactics designed to overcome these groups with overwhelming force, but minimum violence, so that there would be little injury and loss of life.22 In two cases, however, violence escalated dramatically, leading to the sieges at Ruby Ridge, Idaho, and the Branch Davidian compound near Waco, Texas.23 Some critics assert that the Ruby Ridge and Waco sieges fueled anti-government sentiment that led to the Oklahoma City and Atlanta Centennial Park bombings. For various reasons, the FBI was criticized for its handling of each of these cases. In 1996, however, the FBI and other federal law enforcement services were able to defuse successfully another potential domestic extremist group – The Montana Freeman – without any loss of life. Through patient negotiation and gradual increases in pressure, to include cutting power provided to the Freeman compound in Montana, the FBI and other law enforcement services brought the crisis to an end. Counterterrorism. In the late 1980s and 1990s, the United States increasingly became the target of Islamic radicals and terrorists. In February 26, 1993, a bomb was detonated in the basement parking garage of the World Trade Center. The FBI-led investigation revealed a conspiracy centered around a small group of Islamic radicals, who were followers of a Muslim extremist, the blind Egyptian cleric, Sheikh Omar Abdel Rahman.24 Ramzi Yousef, considered to have been the mastermind of the bombing, escaped, but, in a major success for the FBI and its Intelligence Community partners, he was captured in Pakistan in 1995. Following the World Trade Center bombing in 1993, President Clinton appointed Louis Freeh as FBI Director. A former judge and FBI Special Agent, Director Freeh enjoyed working cases and was personally engaged in the investigations of the Oklahoma City and Atlanta Centennial Park bombings. He also increased the number of FBI Special Agents deployed abroad at foreign legations to cope with the growing globalization of crime and to enforce U.S. extraterritoriality laws.25 Director Freeh’s tenure saw a marked increase in the number of terrorist attacks overseas on U.S. interests by Islamic radicals. Most, if not all, of these attacks have been linked to al-Qaeda (The Base), a radical Islamic terrorist network 22 Danny O. Coulson and Elaine Shannon, No Heroes, Inside the FBI’s Secret CounterTerror Force, (New York, 1999), p. 595. 23 Other federal law enforcement agencies were involved in both incidents. For assessments of Ruby Ridge, see The Department of Justice Ruby Ridge Report at [http://web3.foxinternet.net/djf/ruby001.htm#tab]. The Report to the Deputy Attorney General on the Events at Waco, Texas can be located at [http://www.usdoj.gov/05publications/waco/wacothree.html]. See also hearings before the Subcommittee on Terrorism, Technology and Government Information, Committee on the Judiciary, U.S. Senate, Oct. 19, 1995. 24 In 1994, Rahman and several followers were convicted for a conspiracy to blow up the Brooklyn Bridge and Lincoln and Holland tunnels in New York City. 25 Extraterritoriality is defined as U.S. laws which provide federal jurisdiction over some crimes committed outside the United States. See CRS Report 94-166-A, Extraterritorial Application of American Criminal Law, updated Sept. 2, 2002, by Charles Doyle. See also, CRS Report RL 31557, Terrorism and Extraterritorial Jurisdiction in Criminal Cases: Recent Developments, Sept. 2, 2002, by Charles Doyle. CRS-10 founded by Osama Bin Laden, a Saudi national and former heir to a multi-million dollar fortune and construction company. As early as 1993, Bin Laden issued fatwahs26 against U.S. troops in Somalia and Saudi Arabia. The FBI opened an investigation into his activities in October 1995.27 On February 23, 1998, Bin Laden and his lieutenant, Ayman Al Zawahiri, issued a fatwah declaring that it was “the duty of all Muslims to kill Americans – including civilians – anywhere in the world where they could be found.”28 President George W. Bush nominated Robert Mueller, III as FBI Director, and he was sworn in on September 4, 2001. On September 11, 2001, Bin Laden’s followers carried out the largest terrorist attack against the United States in its history. Compounding this crisis, an unknown person or persons delivered anthrax to several locations in the United States, including the Senate and House office buildings, through the U.S. mail. Director Mueller, a former U.S. Attorney in San Francisco, California, and U.S. Marine Corps officer, redeployed FBI Special Agents to more effectively counter terrorism and foreign espionage. In addition, Director Mueller has sought to strengthen the FBI’s capacity to counter cyber-based attacks and other high-technology crime against the United States, and has worked to revamp the FBI’s information technology infrastructure and security programs. FBI Organization and Culture How an entity organizes to implement its mission is critical to the organization’s ultimate success. At the most general level, the FBI has three organizational elements – its headquarters, field components, and Legal Attache offices. FBI Headquarters establishes organizational direction and priorities, while overseeing and managing the field’s implementation of priorities through investigations and operations. With respect to its national security responsibilities, FBI Headquarters is working to centralize and integrate accountability and authority. More important than simple organizational flow charts, however, are the relationships and communication between entities and hierarchical levels within an organization. The culture and ethos of an organization also speaks to its inherent focus and missionbased flexibility. What follows is an assessment of these issues with respect to the FBI. Organization and Jurisdiction. Since its creation in 1908, like many other organizations of similar longevity, the FBI has been through numerous restructuring initiatives. As outlined above, these organizational changes coupled with increased federal criminal jurisdiction reflected an increase in real or perceived criminal and 26 A fatwah is a legal statement in Islam issued by a mufti (religious leader) or a religious lawyer on a specific issue. 27 John Miller, Michael Stone, and Chris Mitchell, The Cell: Inside the 9/11 Plot, and Why the FBI and CIA Failed To Stop It, (New York: Hyperion, 2002), p. 148. 28 This fatwah can be located at [http://www.ict.org.il/articles/fatwah.htm]. See also U.S. Department of Justice, Federal Bureau of Investigation, Congressional Statement before the Senate Committee on Foreign Relations, Subcommittee on International Operations and Terrorism, Al-Qaeda International, by J.T. Caruso, Acting Director, Counterterrorism Division, FBI, (Washington: Dec. 18, 2001), p. 3. CRS-11 national security threats to the United States. The FBI’s jurisdiction and responsibilities are guided by a broad range of statutes and regulations that have developed since its inception. Although prior Congresses have discussed the development of a legislative charter for the FBI, no such single authoritative document outlining FBI jurisdiction and responsibilities exists.29 Figure 3 below reflects the current structure of the FBI. 29 The FBI Charter Act of 1979 was developed in the wake of revelations in the 1960s and early 1970s that the FBI and other U.S. intelligence agencies were investigating U.S. citizen activity deemed then to be “subversive.” Subsequent investigation found many of the government’s activities during this tumultuous period of U.S. history were indeed illegal. For a summary of the FBI Charter Act, see “FBI Charter Act of 1979 (S. 1612),” Hearings before the House Committee on the Judiciary, 96th Congress, Aug., Sept., Oct. 1979. Although the FBI Charter Act was referred to the Judiciary Committee and hearings were held, it was not reported out of the Committee. For a summary of historical abuses committed by U.S. law enforcement and intelligence agencies, see the Church Committee Report. CRS-12 Figure 3. FBI Headquarters Organizational Chart Director Chief of Staff Deputy Director Inspection Division SAC Advisory Committee Office of Public Affairs Office of Congressional Affairs Office of the Ombudsman Office of General Counsel Office of Equal Employment Opportunity Chief Information Officer Office of Professional Responsibility Executive Assistant Director for Intelligence Office of Intelligence Executive Assistant Director for Law Enforcement Services Executive Assistant Director for Counter-Terrorism/ Counter-Intelligence CounterTerrorism Division CounterIntelligence Division Cyber Division Executive Assistant Director for Administration Office of Criminal Law Investigation Enforcement Division Coordination Office of International Operations Office of Strategic Planning Records Management Division Administrative Services Division Critical Incident Response Group Training Division Laboratory Division Criminal Justice Information Services Division Investigative Technologies Division Security Division Finance Division Information Resources Division Source: Federal Bureau of Investigation. Current as of July 1, 2003. CRS-13 As Figure 3 illustrates, the FBI currently has four main directorates under which all of its activities are organized. Each of the 56 field offices is engaged in investigative and operational activities that support the programs around which FBI Headquarters is organized. One recent major organizational and managerial change is the conversion of the Executive Assistant Director (EAD) for Criminal Investigations into an EAD for Intelligence.30 Responsibility and program management for both the Criminal Investigative Programs and the Cyber Program will be assumed by the the FBI Deputy Director. This issue is somewhat contentious from a managerial and functional perspective.31 Functionally, at a time when there is a general perception among some in law enforcement that the national security mission is drawing resources from the FBI’s traditional criminal mission, the organization dissolved an EAD for Criminal Investigations. One of the four existing directorates is investigative and operational (Counterterrorism and Counterintelligence), with the other three (Law Enforcement Services, Administration, and Intelligence) focusing on information sharing with state and local law enforcement, organizational support activities, and intelligence infrastructure development, respectively. Responsibility for criminal and cyber investigations, the FBI’s other investigative/operational role, is now directed from the Deputy Director’s office, as indicated above. The FBI, an organization in the midst of a reorganization aimed at improving its ability to detect, deter, and prevent another terrorist attack has 14 divisions (as illustrated in Figure 3 above). Nationwide, the FBI conducts its investigations and operations through 56 Field Offices and over 400 “resident agencies,” smaller offices geographically dispersed around the country which report to one of the larger 56 field offices.32 With the exception of the largest field offices in Washington (D.C.), New 30 See testimony of FBI Director, Robert S. Mueller III on the FBI reorganization before the House Appropriations Committee, Subcommittee on the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies, June 18, 2003. The FBI has recently appointed an Executive Assistant Director for Intelligence. This position is responsible for the FBI’s Office of Intelligence, the primary mission of which is to establish a formal intelligence program within the FBI’s national security and criminal programs. Substantial reorganizations require congressional approval, particularly if there are proposed changes in how previously authorized and/or appropriated resources are allocated. 31 There are different viewpoints on this initiative. From a management perspective, it could be argued that the agency’s second official is in essence its chief operating officer (COO) responsible for the daily operations of the FBI. The existence of a COO allows the Director the time to engage and inform national level policymakers and congressional oversight committees, and to develop broad strategy for the organization. Some may argue that burdening a COO with specific programmatic responsibilities may force the executive to focus undue time and emphasis on those programs to the potential detriment of the broader organizational mission. However, it could also be argued that notwithstanding the dissolution of the EAD for Criminal Investigations, the FBI has indeed increased its focus on these matters by elevating them to the Deputy Director’s level. 32 See Appendix I for a list of the 56 field offices by city location. See also testimony of FBI Director, Robert S. Mueller, III on the FBI reorganization before the House Appropriations Committee, Subcommittee on the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies, June 18, 2003. As part of its ongoing reorganization, the (continued...) CRS-14 York and Los Angeles, which are led by Assistant Directors-In-Charge (ADICs), each of the 56 field offices is led by a Special Agent-In-Charge (SAC). Offices led by ADICs generally have program-oriented SACs who report to the ADICs. ADICs and SACs report directly to the FBI Director and periodic (generally quarterly) meetings are held during which all SACs and ADICs join with the Director to discuss ongoing activities and FBI strategies. FBI Leadership. The FBI is led by a Director, who is appointed by the President with the advice and consent of the U.S. Senate. The Director is appointed for a single 10-year term. The 10-year appointment was passed by Congress in 1968 to take effect after the tenure of the sixth FBI Director, J. Edgar Hoover, who led the agency for nearly 48 years (1924-1972). The 10-year term was approved in an effort to balance the independence necessary for an investigative agency with protection against the accumulation of excessive power by one agency or individual. Historically, no FBI director following Hoover (See Appendix II for a chronological list) has served the full 10-year term. The median tenure for an FBI Director is six years (including the anomalous nearly 48-year Hoover tenure and excluding six acting directors). Culture. The FBI has a rich culture that is dominated by the interests of law enforcement and has developed over many years. “Fidelity, Bravery and Integrity” are integrated in much of the training FBI employees receive. It is the preeminent national, and arguably international, law enforcement entity. No other U.S.-based organization has the same national and international law enforcement reach, power and influence. Critics have argued, however, that notwithstanding, or perhaps because of, this reactive law enforcement culture the FBI may not be well-equipped for the preventative counterterrorism mission which is now its number one priority.33 The FBI and its supporters recognize the need for substantial change that builds on existing strengths, but substantially redirects FBI activities from a reactive posture to crimes already committed toward a proactive posture with a clear focus on preventing terrorist attacks on U.S. interests. Some have observed that the outcome of the ongoing reorganization activities at the FBI hinge largely on the extent to which this cultural shift can be made, and on the establishment of an effective and efficient intelligence program.34 32 (...continued) FBI is reconsidering its field office structure to determine if it reflects the Nation’s criminal and national security priorities. According to Director Mueller, changes, such as the shifting of population and crime patterns, are factors causing this reassessment of field structure. 33 See the Advisory Panel to Assess Domestic Response Capabilities for Terrorism Involving Weapons of Mass Destruction (the “Gilmore” Commission), and Protecting America’s Freedom in the Information Age (a report of the Markle Foundation Task Force). See also William E. Odom, Fixing Intelligence for More Secure America, Yale University Press, 2003; and Senator John Edwards, “Iraq, Terrorism and U.S. Global Leadership,” speech before the Center for Strategic and International Studies, Oct. 7, 2002. See also Robert Bryant, et al., “America Needs More Spies,” The Economist, July 10, 2003. 34 The FBI has been a statutory member of the U.S. Intelligence Community since 1947 with the passage of the National Security Act of 1947 (50 U.S. Code, §401), as amended. Some (continued...) CRS-15 The culture of intelligence driven organizations differs from those of pure law enforcement organizations.35 While (foreign) intelligence36 organizations are interested in long-term infiltration, active and passive monitoring, and deterrence, the law enforcement bias is to arrest and prosecute. The primary goal of a (foreign) intelligence organization is to: (1) determine what intelligence should be collected to advance national interests; (2) systematically collect that raw intelligence; (3) apply analytical tools to the raw information in the development of informed judgements; and (4) to share that finished intelligence with national level policymakers and other officials with a demonstrated need to know. “Tradecraft” or the how, where and why intelligence gathering takes place, is of utmost importance.37 Recruitment of sources and penetration of groups operating in United States is highly valued.38 There are fewer legal restrictions on overseas U.S. Intelligence Community agency operations. By contrast, the primary goal of a (pure) law enforcement agency is to respond to criminal activities, and to deter future crimes. In general, this goal is achieved by rigorous investigation of criminal activities and close cooperation with prosecution. Discrete cases are the driving factor in a law enforcement organization, while broader trends and relationships among social variables, such as political, economic, and military factors, drive intelligence organizations. When law 34 (...continued) would argue, however, that historically its criminal responsibilities eclipsed its intelligence mission. 35 For a brief assessment of the cultural differences between intelligence and law enforcement see Siobhan Gorman, “FBI, CIA Remain Worlds Apart,” Government Executive, Aug. 1, 2003. See also CRS Report RL30252, Intelligence and Law Enforcement: Countering Transnational Threats to the U.S., updated Dec. 3, 2001, by Richard A. Best, Jr. See also Mark Riebling, Wedge: The Secret War Between the FBI and the CIA, (Knopf, 1994). 36 Foreign Intelligence is defined as information relating to the capabilities, intentions, or activities of foreign governments or elements thereof, foreign organizations, or foreign persons. See the National Security Act of 1947, (50 U.S. Code, Chapter 15, §401a). Gathering of foreign intelligence within the United States is governed by, among other sources, the classified U.S. Department of Justice’s Foreign Counterintelligence Manual, and, for electronic surveillance, the Foreign Intelligence Surveillance Act of 1978 (50 U.S. Code, §1861), as amended. Gathering of foreign intelligence within the United States is governed by, among other sources, the classified U.S. Department of Justice Foreign Counterintelligence Manual, and, for electronic surveillance; physical searches; pen registers and trap and trace devices; and access to “business records,” including any tangible things to obtain foreign intelligence information not concerning a U.S. person, or to protect against international terrorism, or clandestine intelligence activities, the Foreign Intelligence Surveillance Act of 1978 (50 U.S. Code, §1801 et. seq.), as amended. 37 For a brief discussion of how foreign intelligence tradecraft differs from Homeland Security tradecraft, see Bruce Berkowitz, “A Fresh Start Against Terror,” New York Times, Aug. 4, 2003, p. A17. 38 Some have argued a sound metric for assessing performance of an intelligence driven organization is the number of trusted penetrations the agency has recruited. In general, foreign intelligence organizations tend to perform better than pure law enforcement agencies in human asset recruitment. S. 1520, the “9-11 Memorial Intelligence Reform Act,” proposes the FBI enhance its efforts to penetrate terrorist organizations operating in the United States through “all available means” of collection. CRS-16 enforcement entities operate within the United States, civil liberties and the rights of U.S. citizens are of paramount concern. As a result, the domestic environment, and any intelligence gathering which takes place in the United States, is governed by a complex range of investigative guidelines and statutes and constitutional limits. As a hybrid law enforcement and intelligence organization, the FBI collects criminal intelligence in support of its law enforcement mission, and foreign intelligence in support of its national security mission. As such, it has a set of unique advantages (familiarity with treating terrorism as both a crime and potential threat to U.S. national security, awareness of the need to protect civil liberties) and challenges (largely cultural) as it attempts to change the balance between these two missions. The FBI’s membership in the U.S. Intelligence Community makes it responsible for collecting, analyzing, exploiting and disseminating foreign intelligence. Its primary national security mission areas have been and remain counterterrorism and counterintelligence. As a result of this focus, and its prominent law enforcement mission, the FBI has not historically been a substantial producer of foreign intelligence. Moreover, because of its unique (domestic) law enforcement and intelligence mission, the organization was, for the most part, the primary consumer of its own raw and finished intelligence. Informing national policymakers about pressing national security matters when action may not be immediately necessary has historically not been a high FBI priority. Rather, the primary impetus for gathering intelligence was to support a case. However, according to Director Mueller, the FBI is now moving from thinking about “intelligence as a case,” to finding the “intelligence in the case.”39 While some argue that intelligence is the more effective discipline in countering terrorists who operate clandestinely, all elements of national power (intelligence, law enforcement, military, diplomatic, economic) have a role to play in combating terrorism. An important element of an organization’s culture is not only the ethos of the entity itself, but how its employees define themselves and interact with internal and external stakeholders. As mentioned above, the FBI employs a broad range of professionals that fall into two basic categories: Special Agents and professional support. Generally, two professional support staff support each Agent.40 Agents are sworn law enforcement officers who carry a badge and weapon and are authorized to make arrests for many federal crimes, including recently added authority to make arrests based on immigration violations.41 While the FBI continues to recruit lawyers and accountants as Agents, it has diversified its recruitments to include linguists, chemists and biologists, and international affairs experts, among others. New 39 See “Combating Terrorism,” a Statement of Robert S. Mueller, III, before the U.S. Senate, Committee on the Judiciary, July 23, 2003. 40 See P.L. 108-7, Consolidated Appropriations Resolution, 2003. The FBI has approximately 26,000 total employees, out of which about 12,000 are Agents. 41 This authority was recently provided to the FBI when, in Feb. 2003, Attorney General John Ashcroft signed an order extending this power to the FBI. This power had heretofore been reserved for Immigration and Naturalization Service Agents, some U.S. Customs Service officials, and a small amount of Southern Florida law enforcement officers. See Dan Eggen, “Rules on Detention Widened: FBI, Marshals Can Hold Foreigners,” Washington Post, Mar. 20, 2003, p. A11. CRS-17 Agents are required to pass 16 weeks of academic and practical training at the FBI Academy located at the Quantico Marine Base in Quantico, Virginia. Programspecific training follows the 16 week program and continues throughout an Agent’s career. Professional support personnel cover myriad functions ranging from financial and human resources support to physical surveillance, foreign language, and intelligence analytical support. All-source intelligence analysts work closely with Agents to provide tactical analytical support to ongoing national security and criminal cases. They also provide strategic level analyses, such as criminal, terrorism or foreign intelligence patterns of activity and/or trend analyses, and programmatic analyses, to FBI executives and U.S. Intelligence Community policymakers. Training for professional support varies depending on the position. In the wake of September 11, 2001, the FBI has substantially increased training for new and existing intelligence analysts at the FBI, to include an invigorated College of Analytical Studies, an FBI program which leverages some Central Intelligence Agency (CIA) analytical training methodologies.42 International Presence and Role. Internationally, in the last decade the FBI has significantly expanded its presence to 45 Legal Attache (LEGAT) offices.43 Legal Attaches are located within the U.S. Embassy overseas and report to the U.S. Ambassador.44 Legats are integrated into the U.S. Embassy and serve the primary role of developing and nurturing reciprocal relationships with foreign law enforcement and security services in the mutual interest of investigating international crime and terrorism. Legats gather information through overt liaison, but are not engaged in clandestine intelligence collection. FBI officials project that by the end of 2003 there will be approximately 133 Special Agents and 83 support personnel stationed overseas in support of the international mission.45 Legats played a prominent role in coordinating with overseas law enforcement and security services during the investigation into the terrorist attacks of September 11, 2001 (FBI case name PENTTBOMB).46 Legats are also responsible for facilitating the placement of 42 See Robert S. Mueller III, FBI Director, testimony before the U.S. Senate Committee on the Judiciary, “The War Against Terrorism: Working Together to Protect America,” Mar. 4, 2003. 43 See Appendix III for an international map of the FBI’s Legal Attaches. There are 45 overseas Legal Attache offices and one domestic Legal Attache liaison office (Miami, Florida). 44 The FBI has a Memorandum of Understanding (MOU) with the U.S. State Department regarding the placement of Legats in U.S. Embassies. See John S. Pistole, testimony before the U.S. Senate Committee on Foreign Relations, “Diplomacy and the War Against Terrorism,” Mar. 18, 2003. 45 See testimony of Roderick L. Beverly, Special Agent-in-Charge, FBI Office of International Operations, before the House Judiciary Subcommittee on Immigration, Border Security and Claims, May 13, 2003. 46 The nomenclature of the PENTTBOMB case is as follows: “PENT” for Pentagon, and “TT” for twin towers. CRS-18 foreign law enforcement officers into annual FBI National Academy classes.47 Through this program, foreign law enforcement officers are trained in a broad range of criminal procedures, with the attendant benefit of building a cadre of international contacts the FBI leverages to mutual advantage in international criminal and related investigations. Current Major Investigative Programs Robert S. Mueller, III became Director of the FBI on September 4, 2001, only one week prior to the infamous terrorist attacks of September 11. Up until that point, the FBI had national security responsibilities, including counterterrorism, in Tier I of its (1998-2003) Strategic Plan’s Investigative Priorities. Tier I combined national security responsibilities with other issues such as deterring criminal conspiracy;48 therefore, the clarity and focus of FBI priorities, arguably, remained nebulous. Nor was it generally perceived within the FBI that working national security accounts (counterterrorism and counterintelligence) was a career-enhancing endeavor. The events of September 11 only made more stark the need to develop a definitive and clarified list of new priorities for the FBI. Moreover, the recent Robert Hanssen espionage case49 and the espionage investigation at Los Alamos National Laboratory, also contributed to a perceived need for reprioritization, particularly of national security-related issues at the FBI. As a result, on May 29, 2002, the FBI Director announced the following 10 priorities: ! Protect the United States from terrorist attack. ! Protect the United States against foreign intelligence operations and espionage. ! Protect the United States against cyber-based attacks and high-technology ! ! ! ! crimes. Combat public corruption at all levels. Protect civil rights. Combat transnational and national criminal organizations and enterprises. Combat major white-collar crime. 47 Since its inception in 1935, over 2,000 foreign law enforcement officers from over 140 countries have participated in the National Academy. For additional information on the National Academy see [http://www.fbi.gov/hq/td/academy/na/na.htm]. The FBI National Academy should not be confused with the FBI Academy, established in 1920s, which has as its primary purpose the training of new FBI Special Agents. In 1972, the FBI opened a facility to train new Special Agents on the United States Marine Corps Base at Quantico, Virginia. 48 See Thomas J. Pickard, former Acting Director and Deputy Director FBI, testimony before the House Committee on the Judiciary, Subcommittee on Crime, “Re-authorization of the FBI,” May 3, 2001. 49 Robert Hanssen was an FBI Special Agent who had substantial expertise in counterintelligence matters and had access to some of the most highly classified intelligence in the U.S. government. Mr. Hanssen betrayed the trust put in him by the U.S. government by committing espionage on behalf of the former Soviet Union and then Russia. For more information on this case, see the U.S. Department of Justice’s indictment at [http://www.fas.org/irp/ops/ci/hanssen_indict.html]. CRS-19 ! Combat significant violent crime. ! Support federal, state, local and international partners. ! Upgrade technology to successfully perform the FBI’s mission. As this prioritized list makes clear, while the FBI continues to dedicate a majority of its time and resources to combating crime, its national security mission has been dramatically elevated in stature and importance within the organization.50 What follows then is a brief description of the top four FBI investigative programs: Counterterrorism, Counterintelligence, Criminal and Cybercrime (including public corruption), and Security. FBI Counterterrorism Program.51 At the most generic level, there are two types of terrorism that the FBI, and other U.S. governmental agencies, seek to counter – domestic terrorism and international terrorism. The domestic terrorist threat can be categorized as coming from extremists on polar opposites of the political spectrum. That is, there are domestic groups that do not believe in the legitimacy of the U.S. government, including its laws, currency and sovereignty and others that are motivated by hatred of certain ethnic groups (generally referred to as “right wing” extremists), while others are primarily oriented toward violent activities to advance preferred social causes, such as liberation of the earth or animals from perceived exploitation (generally referred to as “left wing” extremists). International terrorists and terrorist groups are generally categorized as State Sponsors of Terrorism or Foreign Terrorist Organizations.52 In FY2002, the FBI worked 12,512 50 According to the General Accounting Office (GAO), from FY2002 to FY2003, the FBI increased the allocation of FBI positions in the counterterrorism, counterintelligence, and cyber areas from 26% to 36%. See FBI Reorganization: Progress Made in Efforts to Transform, but Major Challenges Continue, Statement of David M. Walker, Comptroller General of the United States, before the Subcommittee on Commerce, Justice, State and the Judiciary, Committee on Appropriations, June 18, 2003. Although the FBI’s number one and two priorities are national security oriented, it does not necessarily follow that these two priorities should consume a majority of FBI resources. The quality of the (human) resources, targeting of these resources against greatest threats, and close collaboration between these resources and other Intelligence Community assets, as well as state and local law enforcement partners, may be better indicators of success in this area than raw financial data. 51 The FBI treats terrorism as both a federal crime and as a national security issue. Not all terrorism is a grave threat to national security, but all terrorism, or activity in support of terrorism, is criminal. This reflects the reality of the issue, that is, some prima facie criminal activities, such as fraud and other illegal fund-raising techniques, are engaged in domestically by those supporting terrorist activities at home or abroad. The fact that the proceeds of these illegal activities may be used for violent or coercive activities directed against U.S. citizens to achieve a desired political outcome, makes the activity inimical to U.S. values and interests. Terrorism has the capacity to undermine national public and private institutions and values and negatively affect national quality of life. As such, multiple tools of statecraft, including law enforcement, intelligence, diplomacy, and military force are used to counter terrorism. 52 Two other “lists” have been created by the U.S. government as counterterrorism tools – the Terrorism Exclusion List (TEL) which has immigration consequences for any aliens (continued...) CRS-20 counterterrorism investigations.53 An abbreviated version of the history of the FBI’s Counterterrorism Program is illustrative. The Wake Up Call. The FBI’s organization for countering terrorism has shifted over time as the relative importance of terrorism as a national security and criminal issue has changed. There have been three major periods in the development of the existing Counterterrorism Program. The first period occurred in the early-tomid 1980s. During this period, the FBI’s counterterrorism program employed fewer than 500 people.54 In the aftermath of the 1983 bombings of the U.S. Embassy (April – 63 dead, 17 of whom were Americans) and then the U.S. Marine Corps (October – 241 Marine personnel dead) barracks in Beirut, Lebanon, the FBI established a Terrorism Section within its Criminal Investigative Division. Although the FBI has long had the authority to investigate federal crimes not assigned to other U.S. law enforcement entities, the passage of the Hostage Taking Act of 1984 and the Omnibus Crime Bill of 1986 granted it the explicit authority for extraterritorial investigation of terrorist attacks against U.S. interests and citizens overseas.55 U.S. Vulnerability. The second major period includes the early-to-mid 1990s. During this period, the United States not only was attacked overseas, but perhaps more importantly there were successful and significant terrorist attacks within the United States. The two most prominent attacks during this period involved the bombing of the World Trade Center in February 1993 (an incident of international terrorism in which six Americans died), and the April 1995 domestic terrorism attack on the Alfred P. Murrah office building in Oklahoma City, Oklahoma (168 52 (...continued) “...who provide material assistance to, or solicit it for, designated organizations.” Executive Order 13224, Terrorist Financing allows the U.S. government “... to block designees’ assets in any financial institution in the United States, or held by any U.S. person.” See U.S. Department of State, Patterns of Global Terrorism 2002. The second set of lists is what is referred to as “Watch Lists.” These lists, of which there are approximately 12, were established and are implemented by various executive agencies with intelligence, counterterrorism, and law enforcement responsibilities. See GAO Report 03-322, Information Technology: Terrorist Watch Lists Should be Consolidated to Promote Better Integration and Sharing, Apr. 2003. S. 1520, the “9-11 Memorial Intelligence Reform Act,” proposes the establishment of a National Terrorist Watchlist Center, which would has as its primary function the coordination and integration of all terrorist watchlists. On Sept. 16, 2003, the Department of Justice announced the creation of the Terrorist Screening Center, “...a multi-agency center anchored by the Departments of Justice, Homeland Security, and State, and the Intelligence Community, and administered by the FBI...” to “consolidate terrorist watchlists and provide 24/7 operational support for thousands of federal screeners across the country and around the world.” See Department of Justice News Release, Sept. 16, 2003. 53 See FY2004 FBI Budget Submission, pp. 2-6. 54 By contrast, in early 2003, the FBI dedicated approximately 3,000 field Agents to counterterrorism. See Walker, June 18, 2003. See also Robert M. Blitzer, “Domestic Intelligence Challenges in the 21st Century,” prepared for the Lexington Institute’s February 2003 conference Progress Towards Homeland Security: An Interim Report Card. 55 Extraterritorial jurisdiction for acts of terrorism transcending national boundaries is granted to the Attorney General pursuant to Title 18, U.S. Code, Chapter 113B, §2332b. CRS-21 Americans perished). In part as a response, in 1996, the FBI established, with the support of the Congress, its own Counterterrorism Center and devoted additional international terrorism and domestic terrorism experts to combating terrorism. It was also during this period that the FBI transferred responsibility for terrorism from its Criminal Investigative Division to its National Security Division. Catalyst for a War of Indeterminate Duration. The third period is the late 1990s to 2001. It was during this period that loosely affiliated terrorist organizations became more active and attacks became more deadly and asymmetrical. The August 1998 bombings of U.S. embassies in Kenya and Tanzania (224 killed, 12 of whom were American) are largely attributed in part to an increasingly aggressive al-Qaeda. In 1999, to provide enhanced focus on counterterrorism, the FBI transferred its counterterrorism program from the National Security Division to a newly established Counterterrorism Division. In October 2000, the USS Cole was attacked (17 servicemen dead) by al-Qaeda operatives as it was in the Yemen’s Aden Harbor for refueling.56 Then, on September 11, 2001, acts of violence directed against the United States were carried out with near simultaneous attacks (an al-Qaeda hallmark) on the Pentagon, the World Trade Center and a third target that was averted with a scuttling of the hijacked United Flight 93 in rural Pennsylvania. As a result of the events of September 11, 2001 (approximately 3,000 dead, the majority of whom were American), many changes have taken place and continue to be implemented, to shift the FBI from a reactive to a proactive posture. On May 22, 2002, FBI Director Mueller outlined a reorganization initiative at the FBI. A primary theme of this reorganization is program centralization and the establishment of a national intelligence program which rebalances the relationship between FBI Headquarters and field offices. S. 1520, a bill to amend the National Security Act of 1947 (short title “the 9-11 Memorial Intelligence Reform Act”) proposes that the FBI take a number of actions to enhance its counterterrorism capabilities, including clearly designating priorities for national terrorism and enforcement of adherence by FBI field offices to such priorities, establishing and maintaining a counterterrorism career track and formal training programs for Special Agents and Analysts and improving its ability to penetrate terrorist organizations operating in the United States. Some of these changes are in process. In addition to those changes already outlined above, other major elements of this reorganization are as follows: ! FBI Headquarters Organizational Changes. The Director established a new EAD for Counterterrorism and Counterintelligence, among three other EADs. Subsequently, the FBI Director has established an EAD for Intelligence whose primary function will be to establish and implement a formal and systematic Intelligence Program throughout the FBI. The extent to which this initiative will be successful is largely dependent on whether the FBI’s strong law enforcement culture accepts and adopts this new approach to intelligence. 56 See CRS Report RS 20721, Terrorist Attack on the USS Cole: Background and Issues for Congress, updated Jan. 30, 2001, by Ronald O’Rourke, and Raphael Perl. CRS-22 ! Analytical Enhancements. In order to immediately meet the surge in demand for real-time tactical and strategic counterterrorism analysis, the FBI requested and received 25 analysts on temporary detail from the CIA. According to the FBI, since September 11, 2001, it has increased the number of its Intelligence Operations Specialists from 65 to 345 and increased the number of Intelligence Research Specialists from 41 to 130.57 To meet the sustained long-term need for counterterrorism analysis, for FY2004, the FBI has requested 214 additional counterterrorism analysts, a number that would quadruple the pre-September 11 number of counterterrorism analysts.58 These analysts will be part of the newly formed Analysis Branch of the FBI’s Counterterrorism Division. Perhaps most importantly, analysis of foreign threat intelligence gathered overseas and in the United States on terrorism will be integrated in the newly established Terrorist Threat Integration Center (TTIC), which reports to the Director of Central Intelligence in his capacity as the leader of the U.S. Intelligence Community.59 The Director of the TTIC is a CIA employee detailed to the TTIC, while the Deputy Director is an FBI employee detailed to the TTIC.60 57 Until just recently, the FBI has had two categories of professional support employees who engage in analysis. While Intelligence Research Specialists are all-source intelligence analysts who engage in a full range of tactical, strategic and programmatic analysis, Intelligence Operations Specialists are more tactically oriented and provide direct case and operational support. The FBI is currently in the process of merging these two categories of employees into one - intelligence analysts. The newly created Reports Officers generally do not engage in traditional all source analysis; their focus is reviewing raw information in a timely manner and understanding to whom (internally and externally) that information must be disseminated. 58 See Statement by FBI Director Robert Mueller regarding the Joint Intelligence Committee Report into the Terrorist Attack of September 11, 2001, U.S. Department of Justice, FBI Press Release, July 24, 2003. 59 Currently, the Director of Central Intelligence serves as both the leader of the Central Intelligence Agency, and as Director of the broader U.S. Intelligence Community. The pending 9/11 Intelligence Memorial Reform Act (S. 1520) would create a Director of National Intelligence, and that individual would be precluded from simultaneous service as the Director of the CIA and Director of National Intelligence. Some have argued this proposal would undermine the DCI’s power base. See Robert M. Gates, “How Not to Reform Intelligence,” Wall Street Journal, Sept. 3, 2003. Finally, while the TTIC reports to the Director of Central Intelligence as leader of the U.S. Intelligence Community, the organization has been categorized as a “joint venture” of U.S. Intelligence Community participants. 60 While there is widespread agreement on the need to have more integrated foreign and domestic counterterrorism analytical effort, some observers are skeptical of the placement of an intelligence analytical “fusion” center within the U.S. Intelligence Community. Some believe placement of such a center within the U.S. Intelligence Community will undermine intelligence sharing with state and local law enforcement. Moreover, according to the Homeland Security Act (P.L. 107-296) an Undersecretary of Information Analysis and Infrastructure Protection (IAIP) was to be established within the newly created Department to, inter alia, (1) assess the nature and scope of the terrorist threat to the Homeland; (2) understand threats in light of actual and potential vulnerabilities of the Homeland; and (3) (continued...) CRS-23 ! Investigative Enhancements. With respect to field Agents dedicated to the FBI’s three highest priorities (counterterrorism, counterintelligence and cybercrime), the FBI has increased this number from approximately 2,376 Agents in FY02 to 3,308 Agents in FY03, a 39% increase in 1 year.61 Intelligence squads, including supporting Reports Officers, also have been established at FBI field offices to ensure that this important function is given appropriate attention. ! Re-engineering Projects. The FBI Director has about 40 ongoing or completed re-engineering projects designed to improve the focus, information technology,62 and business practices at the organization. Six projects have been completed, eight additional projects are in the final stages of completion, and work continues on the remainder.63 Counterterrorism and counterintelligence share the same basic discipline, that is, efforts in both areas are supported by clandestine intelligence activity and may or may not be state sponsored. FBI Counterintelligence Program. The FBI’s Counterintelligence 64 Program developed largely as a response to real or perceived threats to U.S. national 60 (...continued) integrate relevant information, analyses and vulnerability assessments to identify priorities for protective measures. IAIP is a member of the TTIC and the U.S. Intelligence Community. For additional information on TTIC, see CRS Report RS 21283, Homeland Security: Intelligence Support, updated June 23, 2003, by Richard A. Best, Jr. See also, Joint Hearing on the Terrorist Threat Integration Center, House Select Committee on Homeland Security and the House Judiciary Committee, July 22, 2003. 61 See General Accounting Office (GAO), FBI Reorganization: Progress Made in Efforts to Transform, but Major Challenges Continue, testimony of David Walker before the House Committee on Appropriations, Subcommittee on Commerce, Justice, State and the Judiciary, June 18, 2003. 62 The Trilogy project is the FBI’s overarching initiative to improve its antiquated information technology infrastructure. Broadly speaking, the goals are to improve information connectivity between and among national and international FBI entities, the U.S. Intelligence Community and, where appropriate, state and local law enforcement agencies. Another important element of this program is to re-engineer FBI information systems so that information can be readily captured and retrieved for timely analytical exploitation. For additional information see, Federal Bureau of Investigation’s Management of Information Technology Investments, Report No. 03-09, Dec. 2002, U.S. Department of Justice, Office of the Inspector General. 63 For a list of these projects see, Dick Thornburgh, Chairman, National Academy of Public Administration Panel of FBI Reorganization, testimony before the House Subcommittee on Commerce, Justice, and State, the Judiciary, and Related Agencies, Committee on Appropriations, June 18, 2003. 64 Counterintelligence is defined as information gathered and activities conducted to protect against espionage, other intelligence activities, sabotage, or assassinations conducted for or on behalf of foreign powers, organizations, or persons, or international terrorist activities, but not including personnel, physical, document, or communications security programs. See Executive Order 12333, United States Intelligence Activities, Dec. 4, 1981. See also (continued...) CRS-24 security as a result of the clandestine foreign intelligence activities directed against the United States. The goal of counterintelligence is to neutralize, deter, detect and prevent, where possible, foreign intelligence activity directed against U.S. interests. Notwithstanding the end of the Cold War, counterintelligence remains a vital U.S. national security function, as nation states and sub-national actors continue to act in their own parochial self interest.65 Moreover, as the world’s dominant economic and military power, the United States remains a target for foreign intelligence activity from a broad range of countries. Although espionage66 cases are the very public face of counterintelligence, the majority of counterintelligence cases never reach prosecution. History. The FBI’s history illustrates that during times of national crisis its domestic intelligence activities have occasionally circumvented constitutional norms. On balance, however, enhanced Attorney General Guidelines covering a broad range of issues such as legal predicates for initiating counterintelligence investigations, the establishment of congressional intelligence committees, as well as the passage of statutes governing electronic surveillance,67 have strengthened the legal, regulatory and oversight environment in which the FBI must operate. Imbalances Between Dissent and Subversion. As alluded to above, historically, the FBI (and other intelligence agencies) have been engaged in intelligence activities directed against individuals based solely on their exercising First Amendment constitutional rights.68 The “Palmer Raids” took place in 19191921, as the FBI’s “Radical Division” (later renamed the General Intelligence Division) sought to round up “anarchist” and “revolutionary” aliens. It was alleged that these individuals, some of whom belonged to the Communist Party of America, were actively engaged in supporting the violent overthrow of the U.S. government. In fact, although many of the individuals subject to the raids may have had political beliefs that were inconsistent with those of contemporary governing authorities, subsequent investigation revealed that many of the so-called radicals were U.S. 64 (...continued) National Security Act of 1947, (50 U.S. Code, Chapter 15, §401a). 65 See David Szady, Assistant FBI Director Counterintelligence Division, “Changes the FBI is Making to the Counterintelligence Program,” statement before the Senate Judiciary Committee, Apr. 9, 2002. 66 In general, there are two categories of espionage – that which involves the unlawful transfer of classified national defense information to an unauthorized third party (see 18 U.S. Code, Chapter 37, §§793, 794, and 798), and that which involves theft of commercial trade secret information which is categorized as “economic espionage.” Economic espionage was codified in 1996 (see 18 U.S. Code, Chapter 90, §1831). 67 The landmark statute in this case is the Foreign Intelligence Surveillance Act of 1978, as amended by P.L. 107-56, which stipulates that a court order must be granted prior to collecting electronic surveillance for foreign intelligence purposes. 68 See Tony Poveda, Lawlessness and Reform: The FBI in Transition, Brooks/Cole Publishing, 1990. CRS-25 citizens who were not actively engaged in any Communist activity to overthrow the U.S. government.69 Throughout the Cold War as the FBI fought an intense counterintelligence battle against the hostile intelligence activities of the Soviet Union and its client states, the FBI occasionally would become involved in domestic intelligence activities inappropriately and in contravention of the basic tenets of an open democracy. Some of these activities included: ! COINTELPRO. During the 1956-1971 era, the FBI developed and implemented its infamous Counterintelligence program or COINTELPRO. Through this program, the FBI investigated those involved in vaguely defined “subversive” activities, including U.S. citizens engaged in legitimate political discourse and advocacy, such as civil rights leader Martin Luther King, Jr.70 In March 1971, antiwar activists broke into the FBI field office in Media, Pennsylvania and stole about 1,000 classified documents that chronicled the FBI’s surreptitious surveillance of anti-Vietnam War activists. These documents were incrementally leaked to the press. ! CISPES. In the early 1980s, the FBI investigated the domestic activities of a group know as the Committee in Solidarity with the People of El Salvador (CISPES), a group engaged in fund-raising activity in the United States with remittance payments to El Salvador. The purpose of the initial investigation was to determine if CISPES had violated the Foreign Agent Registration Act.71 Subsequently, in 1983 the FBI opened a broader investigation to determine if the organization was engaged in international terrorist activity. Although a congressional investigation concluded that the FBI’s investigation did not reflect “significant FBI political or ideological bias...,” its activities “resulted in the investigation of domestic political activities protected by the First Amendment that should not have come under governmental scrutiny.”72 ! Library Awareness Program. In late 1980s, the New York Office of the FBI Counterintelligence Program initiated what became known as the Library Awareness Program. Through this program FBI Agents visited certain libraries within the New York area to make librarians aware that Intelligence Officers of the (former) Soviet Union, may attempt to spot, assess, and recruit librarians and/or students as intelligence agents of the Soviet Union. This FBI initiative was predicated on prior Soviet hostile intelligence activity which demonstrated that known intelligence officers sought to fulfill Soviet intelligence collection requirements regarding U.S. high technology before it became classified or restricted by tasking librarians or students at technical 69 See Edwin Hoyt Palmer, The Palmer Raids,1919-1921: An Attempt to Suppress Dissent, Seabury Press, 1969. 70 For further information on the history of COINTELPRO, see Church Committee Report. 71 The Foreign Agent Registration Act requires that persons acting as foreign agents (as defined by the Act) register with the U.S. Department of Justice for among other reasons, transparency (see 22 U.S. Code, §611). 72 See “The FBI and CISPES,” a report of the Select Committee on Intelligence, U.S. (S. Prt. 101-46, July 1989). CRS-26 libraries. Some civil libertarians and other library groups believed that even though this program was not national in scope, it risked undermining the democratic ideal of openness, particularly because it might impinge on the sharing of open, unclassified information.73 These FBI activities and those of other intelligence agencies in the Watergate era, a time characterized by general mistrust of the government, led to increased oversight of the FBI. The Pendulum Swings Back: Oversight and Regulation. In the wake of these and other scandals, both the executive and legislative branches of government took action to protect the constitutional rights of U.S. citizens. Former Attorney General Edward Hirsch Levi (1975-1977) issued “Domestic Security Investigations” Guidelines (also known as the “Levi” Guidelines) which clarified FBI authorities in this area. Nearly six years later, in 1983, these Guidelines were updated and incorporated into the Attorney General Guidelines on “General Crimes, Racketeering, Enterprises, and Domestic Security/Terrorism Investigations.”74 In the mid-1970s the Congress established two permanent select committees to conduct oversight of U.S. intelligence activities. Later, in 1978, the Congress passed the Foreign Intelligence Surveillance Act (FISA [P.L.95-511]) to establish legal standards and criteria for electronic surveillance of foreign intelligence activities in the United States.75 Executive Order 12333, United States Intelligence Activities, signed in 1981, also prevents members of the U.S. Intelligence Community from conducting, inter alia, electronic surveillance in the United States, unless expressly 73 The USA PATRIOT ACT (P.L. 107-56) §215 amended the Foreign Intelligence Surveillance Act of 1978 (50 U.S. Code §1861) to allow the Director of the FBI (or a designee) to make an application for an order requiring the production of “...any tangible things (including books, records, papers, documents, and other items)...” for an authorized international terrorism or counterintelligence investigation. This remains contentious today, and there are at least three bills pending in the108th Congress (S. 1158, S. 1507, and H.R.1157) which would either exempt bookstores and libraries from orders requiring the production of any tangible things for certain foreign intelligence investigations, or amend the standards for such orders. Recently, the American Civil Liberties Union (ACLU) and six Muslim groups sued the U.S. government arguing that these elements of the PATRIOT Act are unconstitutional on the grounds that they violate the privacy, due process, and free speech rights of Americans. See Eric Lichblau, “Suit Challenges Constitutionality of Powers in Antiterrorism Law,” New York Times, July 31, 2003. 74 See “FBI Domestic Security Guidelines,” Oversight hearings before the Subcommittee on Civil and Constitutional Rights, House Committee on the Judiciary, House Representatives, Apr. 27, 1983. The 1976 and 1983 versions of the domestic security guidelines were subsequently updated and modified by both Attorneys General Richard Thornburgh (1989) and Janet Reno (1994). 75 Some elements of FISA were recently amended in the USA PATRIOT Act (P.L. 107-56), in the Intelligence Authorization Act for FY2002 (P.L.107-108), and in the Homeland Security Act of 202 (P.L. 107-296). See CRS Report RL30465, The Foreign Intelligence Surveillance Act: An Overview of the Statutory Framework and Recent Judicial Decisions, updated Mar. 31, 2003, by Elizabeth Bazan. See also CRS Report RL 31200, Terrorism: Section by Section Analysis of the USA PATRIOT Act, updated Dec. 10, 2001, by Charles Doyle. CRS-27 authorized by the Attorney General and subject to probable cause legal standards.76 It was within this newly regulated environment that the FBI’s Counterintelligence program would have some of its highest profile successes – investigations and prosecutions of espionage. Year of the Spy. In comparison to the early 1950s when the only executions for the crime of espionage took place in the United States, the period of the late 1960s through the mid-1970s can be aptly characterized as relatively quiescent from a counterespionage perspective. During the 1966-1975 period there were five arrests for espionage and related charges. It was not until the late 1970s that the Justice Department, under former Attorney General Griffin Bell (1977-1979), assumed a more aggressive posture against espionage. As implemented by Judge William Webster, FBI Director from 1978 to1987, the FBI’s Counterintelligence program was invigorated. As counterintelligence cases can be relatively slow in pace due to their intelligence nature and relatively high legal thresholds for successful conviction, the FBI’s aggressive investigation bore significant fruit in the mid -1980s. In 1985 alone, the FBI arrested 11 individuals for espionage; and the year was dubbed the “Year of the Spy.” The John Walker espionage ring alone accounted for the indictment of four individuals who were either convicted of or pleaded guilty to charges of espionage. John Walker was a U.S. Navy warrant officer with a top secret clearance and access to cryptography codes, a position which allowed him access to some of the most important national security secrets the nation had. He committed espionage on behalf of the Soviet Union from the late 1960s until he was arrested. Other espionage arrests in 1985 included Larry Wu-Tai Chin, a CIA employee (on behalf of the People’s Republic of China), Jonathan Pollard, an intelligence analyst with the Naval Investigative Service (on behalf of Israel), and Ronald Pelton, a former National Security Agency communications specialist (on behalf of the Soviet Union).77 Post Cold War Counterintelligence. When the former Soviet Union dissolved in 1991, the FBI, like many agencies in the federal bureaucracy that were targeted, staffed and trained to contain the Soviet threat, had to reassess its approach and priorities for counterintelligence. The Department of Justice led an effort to reassess the new international environment and target its counterintelligence resources accordingly. The bipolar world had dissolved with the passing of the Soviet Union and was replaced with a multipolar world. The new world was far less certain and far more complex than the well tested boundaries of international behavior that had evolved since 1945. The end result of the Department of Justice/FBI counterintelligence review was a concept known as the National Security Threat List (NSTL).78 Flexible enough to incorporate a broader array of “non-traditional” threats (that is, those foreign powers that did not traditionally target 76 See Executive Order 12333, §§2.4 and 2.5. 77 See CRS Report 93-531, Individuals Arrested on Charges of Espionage Against the United States Government: 1966-1993, Revised May 27, 1993, by Suzanne Cavanagh (available from the authors of this report). For a compilation of espionage cases through 1999, see [http://www.dss.mil/training/espionage]. 78 See Pat Watson, “The FBI’s Changing Mission in the 1990s,” Consortium for the Study of Intelligence, Mar. 24, 1992. CRS-28 the United States with their foreign intelligence resources), the NSTL is composed of two elements: (1) a classified list of countries whose demonstrated level of activity directed against the United States warrants special attention and monitoring, and (2) an unclassified “Issues List,” which provides the predicate for opening an investigation on any foreign power engaged in activity outlined by the eight issues.79 Some of the higher profile cases during this era include: ! Aldrich Hazen Ames. Aldrich Ames was a CIA, Directorate of Operations Officer who worked on intelligence matters relating to the Soviet Union. In his later career he had responsibilities related to Soviet counterintelligence, which afforded him access to the identities of some of the Soviet sources who had been recruited and operated by U.S. intelligence agencies. From 1985 to 1994, Ames committed espionage on behalf of the Soviet Union and then Russia. He was arrested in 1994, and was convicted of one count of espionage under 18 U.S. Code §794(c). ! Los Alamos National Laboratory (LANL). LANL is one of the world’s preeminent nuclear weapons design and testing facilities. In the late 1990s, DOE intelligence and counterintelligence officials alleged that highly classified documents concerning the design of the W-88 nuclear warhead may have been made available to China.80 Wen Ho Lee was a naturalized U.S. citizen of Taiwanese origin who worked at LANL’s Applied Physics or “X” Division, which has expertise involving all aspects of nuclear weapons physics and a lead role in assessing the safety and reliability of the nuclear stockpile. Based on a DOE Administrative Inquiry, and subsequent FBI full foreign counterintelligence investigation, in December 1999, Lee was indicted on 59 counts of violating the Atomic Energy Act and committing espionage (42 U.S. Code §2276 and 18 U.S. Code, §§793(c) and 793 (e), respectively). Based on FBI testimony to a federal judge that Lee posed a flight risk, he was arrested and placed in solitary confinement for 9 months. The case became contentious and public, as it was alleged by Lee’s defense attorneys that racial profiling played a role in his indictment. Moreover, investigative agencies never located tapes onto which the indictment alleged that Lee downloaded classified information and removed it from Los Alamos National Laboratory. In the end, he pled guilty to one count of unlawfully collecting and keeping classified information relating to the national defense and was sentenced to time served during his pretrial detention. The remaining 58 of 59 counts were dropped. 79 These issues are: Terrorism, Espionage, Proliferation, Economic Espionage, Targeting the National Information Infrastructure, Targeting the U.S. Government, Perception Management, and Foreign Intelligence Activities. See [http://www.fas.org/irp/ops/ci/ansir.htm]. 80 See U.S. Congress, House, Select Committee on U.S. National Security and Military/Commercial Concerns with the People’s Republic of China (the “Cox” report), which can be accessed through http://hillsource.house.gov/CoxReport/cont/gncont.html. For a critical review of the handling of this case see The Attorney General’s Review Team on the Handling of the Los Alamos National Laboratory Investigation (“Bellows” report), May 2000. Much of this report is classified, but a redacted version can be viewed at [http://www.usdoj.gov/ag/readingroom/bellows.htm]. CRS-29 ! Robert Hanssen. As mentioned above, former FBI Agent Robert Hanssen was convicted of committing espionage on behalf of the former Soviet Union and then Russia in the late 1980s, and then again in the late 1990s. Like Aldrich Ames, Hanssen’s insider access through his FBI position allowed him to be a valuable Russian agent. Tipped off that the FBI had a “mole” in its ranks by a U.S. Intelligence Community-controlled double agent, Hanssen’s espionage career was halted in February 2001. He is now serving a life sentence without parole, the result of a plea bargain with the U.S. Department of Justice. In early 2003, the FBI’s Counterintelligence program developed a Strategic Plan outlining the FBI’s perception of top foreign intelligence threats, and therefore, its top counterintelligence priorities. According to Director Mueller, these threats and resultant counterintelligence priorities include: (1) the potential for an agent of a hostile group to enhance its capability to produce or use a weapon of mass destruction; (2) the potential for a foreign agent to penetrate the U.S. Intelligence Community (for espionage purposes); (3) targeting of government supported research and development; and (4) compromise of U.S. Critical National Assets.81 Other important recent changes in the Counterintelligence program include the establishment of a Counterespionage Section to manage classic (national defense information) and economic espionage cases, and a centralization of the program, with FBI Headquarters taking a more direct role in setting priorities and allowing FBI field offices some degree of autonomy in how they implement these national priorities. FBI Criminal Enterprises, White Collar, Cyber and Other Federal Crimes. The FBI’s major criminal responsibilities include investigating organized criminal enterprises, white collar crime, public corruption, civil rights violations, and a host of other crimes that often fall within the jurisdiction of state and local law enforcement, but are either committed across state borders or are so complex in nature that federal involvement is appropriate. Such crimes include kidnaping, extortion, bank robberies, child exploitation and pornography, and international child abduction. In FY2002, out of a $5.1 billion budget and 28,277 funded positions,82 the FBI obligated over half of its funding and positions to combat criminal enterprises, and other federal crimes.83 81 See Robert S. Mueller III, “FBI’s Fiscal Year 2004 Budget,” testimony before the House Appropriations Committee, Subcommittee on the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies, Mar. 27, 2003. A Critical National Asset is defined as those “... persons, information, assets, activity, research and development technology, infrastructure, economic or security interests whose compromise would do damage to the survival of the United States.” 82 The number of “funded positions” an agency has does not always correlate directly to the number of on board employees an agency has, as hiring and attrition are fluid and ongoing processes. 83 U.S. Department of Justice, 2004 Congressional Authorization and Budget Submission, Volume II, Federal Bureau of Investigation, (Washington, Feb. 2003), pp. 1-7 and pp. 1-9. CRS-30 Organized Criminal Enterprises. The FBI defines “organized criminal enterprises” as continuing and self-perpetuating criminal conspiracies by groups that are hierarchical in structure, and employ the use and threat of violence to maintain their power base. Through investigation and prosecution, the FBI’s Organized Crime program seeks to disrupt the largest criminal enterprises. In FY2002, the FBI worked nearly 4,087 organized crime cases, of which 956 ended in a conviction or a pre-trial diversion.84 It is noteworthy that as part of every major crime law Congress passed, the FBI received enhanced capacity to combat organized crime. Specifically, two laws passed by Congress gave the Department of Justice and the FBI the tools to more effectively combat organized crime. In 1968, Congress passed the Omnibus Crime Control and Safe Streets Act of 1968 (P.L. 90-351). Title III of this Act defined for the first time parameters within which federal law enforcement could engage in electronic surveillance during criminal investigations.85 In 1970, Congress passed the Racketeering-Influenced and Corrupt Organizations (RICO) Act (P.L. 91-452), giving federal law enforcement new statutory laws by which they could prosecute professional criminals, who are linked to a pattern of criminal activity.86 Crimes covered by RICO include, but are not limited to, sports bribery, counterfeiting, embezzlement of union funds, mail fraud, wire fraud, money laundering, obstruction of justice, murder for hire, drug trafficking, prostitution, sexual exploitation of children, alien smuggling, trafficking in counterfeit goods, theft from interstate shipments, and interstate transportation of stolen property. State crimes covered by RICO include murder, kidnaping, gambling, arson, robbery, bribery, extortion, and drug trafficking. Factors that perpetuate organized crime include social and economic instability in the newly emerging post-Soviet nation states; increased cross-border commerce; the development of the Internet; widespread use of electronic banking; increased ease and frequency of international travel; the continuing profitability of international drug trafficking; and the possible proliferation of nuclear, chemical. and biological weapons of mass destruction. According to the FBI, the principal organized crime groups–that are not primarily involved in drug trafficking – include: (1) La Cosa Nostra and other Italian organized crime groups; (2) Russian and Eastern European crime groups; and (3) East Asian crime groups. While these groups are identified with ethnic groups, their associates are often of other backgrounds. Some observers note that increasingly these groups are specializing in order to carve out market niches. For example, the Russian mob is known to produce high quality forged 84 2004 FBI Budget Submission, pp. 2-11. Pre-trial diversions usually include cases where the U.S. Attorney decides to postpone prosecution depending upon the offender agreeing to testify, or agreeing to accept certain probation-like conditions, or both. 85 For further information, see CRS Report 98-327, Privacy: An Abbreviated Outline of Federal Statutes Governing Wiretapping and Electronic Eavesdropping, by Gina Stevens and Charles Doyle. 86 For further information, see CRS Report RS20376, RICO: An Abridged Sketch, by Charles Doyle. CRS-31 documents. They are also cooperating with one another to a greater degree than in the past.87 A brief summary of these groups and others follow. La Cosa Nostra (LCN) emerged as a national criminal threat in the 1950s and 1960s. These groups are involved in a wide variety of on-going criminal enterprises that include illegal gambling, prostitution, drug trafficking, theft, fraud, extortion, public corruption, and the infiltration of labor unions. Russian and Eastern European criminal enterprises emerged following the break-up of the Soviet Union in 1991. These groups are sophisticated and specialize in international money laundering, bank fraud, and forgery. They conduct the bulk of their activities in the former Soviet Union, but they are also highly mobile and have been active in the United States.88 East Asian criminal enterprises include the Chinese Triads and Japanese Yakuza. They also includes smaller, but often more violent, gangs from Vietnam, Laos, Cambodia, and Thailand. Their criminal activities include narcotics trafficking, financial crimes, prostitution, public corruption, and alien smuggling. Drug trafficking organizations. There are several major Mexican, Colombian, Jamaican, and Dominican drug trafficking organizations. According to GAO, since September 11, 2001, about 40% of FBI Special Agent positions dedicated to drug enforcement have been shifted to either the national security or counterterrorism programs. At the end of FY2002, the FBI had 1,379 agents positions allocated to drug cases, by the second quarter of FY2003, it only had 823 agents working these matters.89 The number of newly opened drug cases is expected to drop sharply in FY2003 to just over 300, as compared to 944 cases in FY2002, 1,413 in FY2001, and 1,825 in FY2000.90 In FY2002, the FBI worked 10,132 open drug cases, of which nearly 3,906 ended in convictions or pre-trial diversions.91 Other Violent Gangs. In recent decades, law enforcement agencies have noted a rise in violent street gangs, prison gangs, and outlaw motorcycle gangs. Los Angeles is the center of gang phenomenon, but there has been significant migration of street gangs from larger to smaller urban areas. Such street gangs would include the Bloods, the Crips, Folk Nation, the People Nation, the18th Street Gang, and the Mara Salvatrucha. Many of these street gangs are run by prison gangs, as older gang members are incarcerated but continue to run gang operations from prison. Outlaw 87 Jeffrey Robinson, The Merger: How Organized Crime is Taking Over Canada and the World, 1999. 88 For a description of gasoline bootlegging scams carried out by Russian organized crime groups, see Robert I. Friedman, Red Mafiya: How the Russian Mob Has Invaded America, (New York: Mar. 2000), 266 p. 89 U.S. General Accounting Office, FBI Reorganization: Progress Made in Efforts to Transform, but Major Challenges Continue, GAO-03-759T, (Washington, June 18, 2003), p. 16. 90 Ibid., pp. 18. 91 2004 FBI Budget Submission, pp. 2-11. CRS-32 motorcycle gangs continue to pose a threat as well. They include, among others, the Hells Angels, the Bandidos, the Pagans, and the Warlocks. Since motorcycle gangs often engage in interstate narcotics trafficking – particularly methamphetamine – and prostitution, they have been the target of major FBI investigations. In FY2002, the FBI worked 1,832 gang-related cases, of which 956 ended in convictions or pre-trial diversions.92 White Collar Crime and Public Corruption. White collar crime refers to non-violent fraudulent enterprises committed by persons while engaged in legitimate occupations. Such crimes range from small-time embezzlements to corporate malfeasance, and are committed in every major sector of the economy. They include health care fraud, public corruption, financial institution fraud, insurance fraud, securities and commodities fraud, telemarketing fraud, bankruptcy fraud, environmental crimes, money laundering, and intellectual property rights. There is a widespread public perception, moreover, that high-level white collar and public corruption crimes go unpunished.93 Three areas of “white collar” crime present the greatest challenge to the FBI. They include health care fraud, public corruption, and corporate and securities fraud. In FY2002, the FBI worked 42,738 white collar crime cases, of which 6,918 resulted in convictions or pre-trial diversions.94 Health Care Fraud. In Calendar Year (CY) 2000, fraud in the burgeoning $1.3 trillion health care sector had become so lucrative that law enforcement agencies95 documented the migration of some crime groups from drug trafficking and other criminal enterprises to health care fraud. Health care fraud involves making false claims to health care insurers, including Medicare and Medicaid. The Centers for Medicare and Medicaid Services (CMS) estimate that health care expenditures will exceed $2 trillion by CY2006.96 A recent audit of the Medicare fee-for-services program reported that out of $192 billion in claims paid in CY2001, over $12 billion in claims, or 6% were paid in error, without proper documentation, or were fraudulent.97 The National Health Care Anti-Fraud Association estimates that at least 3% of health care outlays, or $39 billion was lost to outright fraud in CY2000.98 92 Ibid., pp. 2-11. 93 David Burnham, “The FBI: A Special Report,” The Nation, (Aug. 11-18, 1997), p. 12. 94 2004 FBI Budget Submission, pp. 2-10, 2-11. 95 The U.S. Department of Health and Human Services, including its Office of Inspector General, participates in combating healthcare fraud. 96 Department of Health and Human Services, Centers for Medicare & Medicaid Services, National Health Care Expenditures Projections Tables, Table 1, click on [http://cms.hhs.gov/statistics/nhe/projections-2001/t1.asp]. 97 Department of Health and Human Services, Office of Inspector General, Improper Fiscal Year 2001 Medicare Fee-For-Service Payments, Report A-17-01-02002, (Washington, February 21, 2002), click on [http://www.oig.hhs.gov/oas/reports/cms/a0102002.pdf], cited in National Health Care Anti-Fraud Association, Health Care Fraud: A Serious and Costly Reality for All Americans, p. 2, click on [http://www.nhcaa.org/pdf/all_about_hcf.pdf]. 98 National Health Care Anti-Fraud Association, Health Care Fraud, p. 2, click on (continued...) CRS-33 Other estimates place the losses in the 10% range, or $130 billion per year.99 Health care fraud includes the following scams: ! ! ! ! ! billing for services never provided; billing for higher reimbursed services than actually performed (upcoding); performing unnecessary services simply to generate billings; misrepresenting treatments as medically necessary to obtain coverage; and referring patients to ancillary providers in return for a kickback. Congress included provisions to combat fraud in the Health Insurance Portability and Accountability Act of 1996 (P.L. 104-191; HIPAA). Beside making health care fraud a federal crime, the Act established a dedicated funding stream, which is used to fund FBI efforts to detect and investigate fraud in the Medicare and Medicaid programs. Prior to the Act, funding for health care fraud investigations were directly appropriated. For 2003, the FBI anticipated that it would receive $114 million from HIPAA, supporting 878 positions (507 agents).100 Public Corruption. The FBI is responsible for investigating public corruption cases that involve federal, state and local public servants entrusted with the safety and protection of the citizenry and public property. In addition to independent inspectors general at federal agencies, the FBI is perhaps the only agency that is positioned to investigate pervasive corruption and restore the public’s faith in public institutions. Its role, however, in policing such corruption has been controversial. When such investigations are ill conceived, poorly managed, or perceived as politically motivated, they actually undermine the public’s faith in the federal government’s ability to effectively police the Nation. Perhaps the most well known public corruption investigation was ABSCAM, an undercover operation in which the FBI used middlemen to lure public figures into taking bribes. While controversial, ABSCAM led to the successful prosecution of one Senator and six Members of the House of Representatives, among others. More recently, an FBI investigation resulted in the conviction of Congressman James A. Traficant on multiple counts, including bribery, tax evasion, and racketeering. In FY2002, the FBI worked 2,344 public corruption cases, of which 631 resulted in convictions or pre-trial diversions.101 Corporate Fraud and Securities. In July 2002, the FBI established a corporate fraud task force and, since that date, 45 of 56 FBI field offices have participated in some part of task force operations. As of February 2003, the FBI had opened more than 50 corporate fraud investigations. Among others, the FBI is currently investigating Enron, WorldCom, Tyco International, Rite Aid, Qwest Communications, Peregrine Systems, K-Mart, ImClone Systems, Global Crossing, 98 (...continued) [http://www.nhcaa.org/pdf/all_about_hcf.pdf]. 99 Ibid., p. 2. 100 2003 FBI Budget Submission, pp. 3-4. 101 2004 FBI Budget Submission, pp. 2-10. CRS-34 Dynegy, Duke Power, and CMS Energy Corporation.102 Of these investigations, 13 involve estimated losses to investors that exceed $100 million.103 In the wake of these corporate scandals, Congress increased penalties for certain types of securitiesrelated fraud in the Sarbanes-Oxley Act (P.L. 107-204).104 To address corporate crime, the FBI has formulated a four-part plan. First, the FBI is working to increase liaisons with other agencies that work corporate and security fraud. Such agencies would include the Securities and Exchange Commission, the U.S. Postal Service, State Attorney General offices, and other state agencies. Second, the Bureau is increasing training for Agents and Analysts in the areas of corporate fraud, securities fraud, and money laundering. Third, the Bureau is establishing a corporate fraud “reserve team,”consisting of 304 agents and over 300 financial analysts with investigative expertise in the area of corporate and securities fraud. This team will be available to be deployed as needed in the case of large and complex investigations on the scale of Enron or WorldCom. Fourth, the FBI intends to hire additional agents and analysts who can be dedicated to the corporate fraud reserve team.105 Cybercrime. Cyberspace has been described as the “nervous system” of our Nation’s critical infrastructures. Cyberspace essentially consists of hundreds of thousands of computers, networks, and routers that are linked together in a massive telecommunications grid known as the Internet. Enemies of the United States can conduct espionage and prepare for cyber strikes against the United States through the Internet.106 Criminals, moreover, have exploited computers and the Internet to engage in identity theft and other types of fraud. Consequently, cyber security has become a national priority and the Executive Branch has formulated a National Strategy to Secure Cyberspace.107 To reduce threats and vulnerabilities, the National Strategy calls for enhancing law enforcement’s capabilities to prevent and prosecute cyberspace attacks. The FBI has a prominent role to play in this area. Following September 11th, the reorganization of the FBI included the creation of Cyber Division, as the Bureau prioritized cybercrime. Within the Cyber Division, the FBI established a Computer Investigation Threat Assessment Center (CITAC) to conduct and coordinate all investigations involving foreign terrorists or powers that threaten or attack the integrity of our Nation’s information systems. While the newly created Department of Homeland Security is responsible for protecting the Nation’s 102 For further information, see CRS Report RS21269, Accounting Problems Reported in Major Companies Since Enron, by Mark Jickling. 103 U.S. Department of Justice, Federal Bureau of Investigation, Corporate Fraud Hotline Press Release, (Washington, Feb. 5, 2003) 1 p. [http://www.fbi.gov/pressrel/pressrel03/mueller022503.htm]. 104 For further information, see CRS Report RL31554, Corporate Accountability: SarbanesOxley Act of 2002 (P.L. 107-204), by Michael V. Seitzinger and Elizabeth B. Bazan. 105 FBI Budget Submission, pp. 5-12. 106 For information on one international dimension of this issue, see Ariana Eunjung Cha, “Internet Dreams Turn to Crime: Russian Start-Up Firm Targeted U.S. Companies,” a threepart series of articles in the Washington Post, beginning May 18, 2003. 107 The White House, The National Strategy to Secure Cyberspace, (Washington, Feb. 2003), 60 p. Available at [http://www.whitehouse.gov/pcipb/cyberspace_strategy.pdf]. CRS-35 cyber infrastructure,108 the FBI’s Cyber Division is responsible for investigating federal crimes that have a cyber nexus.109 Cyber-related investigations could include: ! violations of intellectual property rights, including theft of trade and signal ! ! ! ! secrets; software copyright infringements; Internet and online credit/debit card fraud; Internet and online identity theft and fraud; and online child pornography. Since investigations handled by the Counterterrorism, Counterintelligence, and Criminal Investigations Divisions could also involve cyber-related elements, the Cyber Division supports these divisions with technical assistance. Besides conducting cybercrime investigations, the Cyber Division is working to maintain the necessary public/private alliances, provide education and training, and stay abreast of the emerging technologies. In partnership with the National White Collar Crime Center (NW3C), the FBI also established the Internet Fraud Complaint Center (IFCC) in 1999. The IFCC is a collection point of valuable cybercrime intelligence. Complaints include computer intrusions, identity theft, intellectual property rights violations, economic espionage, credit card fraud, child pornography, and online extortion. In CY2002, the FBI received more than 75,000 fraud complaints. Of these complaints, more that 48,000 were referred to other law enforcement agencies for follow up – triple the referral rate in CY2001. A recent IFCC report estimated that cyber-related fraud from referred cases amounted to $54 million in losses in CY2001, as compared to $17 million in CY2000. The most frequently reported complaints involved Internet auction fraud (46%), non-delivery of merchandise and non-payment (31%), and credit/debit card fraud (12%). In FY2003, the FBI and the Office of Management and Budget is conducting a performance and analysis review test on the cybercrime program. Performance measures for this program will be incorporated into the FY2005 budget submission. Other Significant Crime. Other crime areas of significant concern for the FBI include civil rights/hate crimes; crimes against children, including abduction cases, sexual exploitation, and child pornography; and Indian country law enforcement. Civil Rights/Hate Crimes. The FBI is also responsible for investigating certain civil rights violations, which for operational purposes are divided into four 108 The Homeland Security Act of 2002 (P.L. 107-296) transferred the National Infrastructure Protection Center (NIPC), to the Department of Homeland Security. NIPC was formed to detect, deter, assess, and warn computer users as to cyber threats and to investigate and prosecute unlawful computer intrusions. According to the DOJ FY2004 Budget Summary, NIPC’s transfer to DHS’s Information Analysis and Infrastructure Protection Directorate included about $51 million and 307 positions. 109 For further information, see CRS Report RS20830, Cybercrime: A Sketch of 18 U.S.C. 1030 and Related Federal Criminal Laws, by Charles Doyle. CRS-36 categories: hate crimes, color of law/police misconduct, freedom of access to clinic entrances, and involuntary servitude/slavery.110 The Violent Crime Control and Law Enforcement Act (P.L. 103-322) defines a “hate crime” as: a crime in which the defendant intentionally selects a victim, or in the case of property crime, the property that is the object of the crime, because of the actual or perceived race, color, religion, national origin, ethnicity, gender, disability, or sexual orientation of any person (§280003). In FY2002, the FBI worked 3,485 civil rights or hate crime cases, of which 186 resulted in convictions or pre-trial diversions.111 Crimes Against Children. The FBI launched the Innocent Images National Initiative (IINI) to lead multi-agency undercover operations to identify child pornographers and others that use the Internet to lure children into sexually abusive situations. Under Director Louis Freeh, as has been continued under Director Robert Mueller, it became a matter of policy for the FBI to lend immediate assistance to state and local authorities in cases of child abduction – particularly those 12 years old or younger, since it is extremely critical to resolve such cases within the first 24 hours. In FY1996, the FBI pursued about 113 child pornography cases. In FY2002, the Bureau worked 2,704 Innocent Images cases and 1,775 other child exploitation cases. Of these cases, 660 Innocent Images and 194 other child exploitation cases ended in convictions or pre-trial diversions.112 FBI Security Program. As the Nation’s lead counterintelligence organization, the FBI is an obvious target for foreign intelligence agencies and others seeking to compromise U.S. national security. Efforts to assess the FBI security program were initiated in the Fall of 1999. These efforts were intensified following the arrest of Robert Hanssen in February 2001 and the September 11th attacks. By April 2001, a FBI task force concluded that a single executive should be responsible for the FBI Security program. At that time, the security function was diffused and scattered in several Bureau divisions, and no single Bureau executive was responsible for security. In March 2001, Attorney General John Ashcroft established a Commission for the Review of FBI Security Programs. Former FBI and CIA Director, Judge William Webster headed the Commission. In March 2002, Judge Webster’s Commission issued its findings. Among other findings, the Commission found that Robert Hanssen had exploited his access to the FBI’s Automated Case Support (ACS) system to breach most security fire walls and compiled highly sensitive information regarding FBI counterintelligence operations. He later sold this information to the Soviets and, then, the Russians. In addition, Judge Webster testified that in the days immediately following September 11 the FBI 110 A “color of law” investigation involves instances when persons operating under the “color of law,” e.g., police officers, willfully deprive, or cause to be deprived, any person of their rights, privileges, or immunities secured or protected by the Constitution or other U.S. laws. 111 2004 FBI Budget Submission, pp. 2-11. 112 Ibid., pp. 2-11. CRS-37 had dropped all ACS fire walls in the interest of sharing all relevant leads. In so doing, any FBI employee with access to the ACS could have accessed all the FBI foreign intelligence case files – an alarming vulnerability. The Webster Commission’s Review of FBI Security Programs included recommendations regarding systems, personnel, and document security.113 In addition, the Commission recommended that the FBI security programs should be integrated into a single office that reports to the Director. Two measures, S. 1440 and its pending companion bill, H.R. 2867, the “FBI Reform Act of 2003" would adopt some of the changes recommended in the Webster Commission, including the establishment of a counterintelligence screening polygraph program.114 In response to the Webster Commission recommendations, the FBI has enhanced computer audit procedures, expanded the use of polygraphs, and increased the frequency of employee reinvestigations for sensitive positions. As part of the recent FBI reorganization, a stand-alone Security Division has been established under the Executive Assistant Director for Administration. This Division is currently headed by a CIA intelligence executive. Observers note, however, that no security program can guarantee against a “trusted insider” who, for whatever motivation, might compromise the FBI or the Nation’s security. Notwithstanding these limitations, the Assistant Director for Security recently testified that the FBI is committed to changing its security culture to more quickly detect those who may compromise sensitive information.115 Pertinent Relationships Notwithstanding the 10-year appointment of the FBI Director, the FBI does not operate in a vacuum. In order to most effectively and efficiently implement its mission, the FBI must have sound relationships with a broad range of national and international agencies and organizations. The first of these is its parent organization, the U.S. Department of Justice. As one element of the Department of Justice, at the policy level the FBI’s requested budget is set by the Department and approved by the Office of Management and Budget. The Director of the FBI reports to the Attorney General. While the Attorney General is a member of the president’s cabinet, the FBI Director is not. Therefore, policymaking on matters concerning the FBI’s mission areas is developed by the Attorney General with substantial input from the Director. At the operational level, FBI Agents work closely with U.S. Attorneys to provide evidence and facts in support of potential prosecutions. Investigative Relationships. From a counterterrorism perspective, the FBI also works closely with a broad range of national and international organizations, including important relationships with other elements of the U.S. Intelligence 113 U.S. Department of Justice, A Review of FBI Security Programs, (Washington: Mar. 2002), p. 25. [http://www.usdoj.gov/05publications/websterreport.pdf]. 114 Other matters included in this proposed legislation include protection for FBI whistle blowers, establishment of career paths for FBI security professionals, and allowing the disciplinary suspension of FBI Senior Executive Service Members for 14 days or less. 115 U.S. Department of Justice, Federal Bureau of Investigation, Testimony by Kenneth H. Senser before the Senate Judiciary Committee on Review of the FBI Security Program and Its Transformation, (Washington: July 18, 2001). CRS-38 Community. The FBI has substantial interaction with the CIA, NSA, and the Defense Intelligence Agency (DIA). Since the mid-1990s, the FBI and CIA have exchanged senior level management, as well as Agents and Analysts in both the Counterterrorist and Counterintelligence Centers housed at the CIA. Certain entities within the FBI, including the National Infrastructure Protection Center (NIPC), were transferred to the Department of Homeland Security (DHS). FBI Agents work closely with DHS immigration and customs professionals on matters pertaining to national security. From a counterterrorism analytical perspective, the FBI works closely with DHS, among other agencies, through participation in the aforementioned Terrorist Threat Integration Center. Conceptually, the FBI conducts all-source counterterrorism analysis, while the DHSInformation Analysis and Infrastructure Protection Directorate’s analysis is designed to contribute to these threat assessments while building upon them to conduct (internal infrastructure) vulnerability assessments. State and local law enforcement are another important FBI relationship in the War Against Terrorism and in complex criminal cases in which the FBI has jurisdiction. While the FBI has a reputation for being reluctant to share information, it is now working to integrate state and local law enforcement personnel into its 84 Joint Terrorism Task Forces (JTTFs).116 Moreover, it has established a separate office, the Office of Law Enforcement Coordination, to ensure a two-way flow of germane information to state and local law enforcement officials. Counterterrorism threat and vulnerability assessment data are shared by FBI and DHS personnel with state and local law enforcement and private sector entities as appropriate. Finally, as mentioned above, the FBI has many close international law enforcement and security service relationships developed through its Legal Attache program. Congressional Oversight Relationships. From a congressional perspective, the FBI and its activities are subject to extensive oversight from a variety of committees and subcommittees. In the last 5 years, the FBI has provided official testimony to congressional committee hearings open to the public on over 100 occasions. Unofficial briefings to Members of Congress and their staff, as well as responses to congressional inquiries made directly to the FBI Director far surpass the numbers of official statements at congressional hearings. These oversight committees include, but are not limited to, House and Senate Judiciary Committees, 116 Joint Terrorism Task Forces are mechanisms used by the FBI to integrate federal, state and local law enforcement efforts in the prevention of terrorism. According to the FBI, these task forces “...are important ‘force multipliers’ in the war on terror, pooling multiagency expertise....” They are also the primary conduit through which intelligence sharing is coordinated. State and local law enforcement officials are required to have a top secret security clearance to be a member of the JTTFs. See testimony of Larry A. Mefford, FBI Executive Assistant Director for Counterterrorism and Counterintelligence, before the Senate Judiciary Committee, Subcommittee on Immigration and Border Security, September 23, 2003. For a state and local perspective on the effectiveness of JTTFs, see Protecting Your Community From Terrorism: Strategies for Local Law Enforcement - Volume 1 Local-Federal Partnerships, Police Executive Research Forum, supported by a Cooperative Agreement with the U.S. Justice Department’s Office of Community Oriented Policing Services, at [http://policeforum.mn-8.net/default.asp?link=]. CRS-39 Appropriations, Armed Services, Select Committees on Intelligence, as well as House Governmental Reform, Senate Governmental Affairs, House Select Committee on Homeland Security, House International Relations Committee, and the Senate Foreign Relations Committees. Given the FBI’s law enforcement and national security mission, in general, the committees with the greatest amount of interaction with the FBI tend to be the Judiciary and Intelligence Committees. The FBI in Transition As domestic and international criminal and national security trends have changed and the FBI’s jurisdiction expanded over time, the organization has been through multiple periods of transition. One could argue, however, that the current period of transition is at least as portentous as those which the FBI has experienced before. Some have argued that the FBI’s reactive law enforcement culture, with its alleged predilection for information collection, but not sharing, may be so resistant to change that the organization may ultimately prove itself incapable of adapting to a preventative counterterrorism and intelligence mission.117 Others have argued that the FBI’s case orientation and culture is not in need of changing; indeed, the culture and ability to build complex cases that withstand legal and constitutional scrutiny is an unassailable asset in the War Against Terrorism.118 While the changes that the FBI has made thus far have generally been received positively by groups which have reviewed them,119 the extent to which the organization can reform itself to effectively and efficiently advance the preventative counterterrorism mission is an open question.120 In addition to the question of whether the FBI can succeed in making the 117 See, Advisory Panel to Assess Domestic Response Capabilities for Terrorism Involving Weapons of Mass Destruction (the “Gilmore” Commission), and Protecting America’s Freedom in the Information Age (a report of the Markle Foundation Task Force). See also William E. Odom, Fixing Intelligence for More Secure America, Yale University Press 2003, and Senator John Edwards, “Iraq, Terrorism and U.S. Global Leadership,” speech before the Center for Strategic and International Studies, Oct. 7, 2002. 118 See testimony of Nancy L. Savage, President, Federal Bureau of Investigation Agents Association, before the House Appropriations Committee, Subcommittee on Commerce, Justice, and State, the Judiciary, and Related Agencies, June 18, 2003. 119 See Dick Thornburgh, Chairman National Academy of Public Administration Panel of FBI Reorganization, testimony before the House Committee on Appropriations, Subcommittee on Commerce, Justice, State and the Judiciary, June 18, 2003. 120 In a recent article in The Economist, six senior experts in intelligence and law enforcement, including a recent former Deputy Director of the FBI who also previously served as Assistant Director for both the FBI’s Criminal Investigative and National Security Divisions stated that while FBI’s preliminary (reorganization) steps are “...welcome, they are nonetheless very modest.” The article continues “The FBI should be regarded as having been granted a last chance to succeed before the (counterterrorism and counterintelligence) mission should be permanently removed and its jurisdiction given to a new domestic security service.” The authors state that the adoption of the British model of conducting domestic intelligence, as implemented by the British Security Service (MI-5), is not appropriate – “... not for now at least.” See Robert Bryant, et al., “America Needs More Spies,” in The Economist, July 10, 2003. See CRS Report RL 31920, Domestic Intelligence in the United Kingdom: Applicability of the MI-5 Model to the United States, May 19, 2003, (continued...) CRS-40 transformation from reactive to proactive bias in the national security realm, there is the issue of the extent to which the FBI should balance its national security responsibilities with its traditional criminal pursuit mission. As mentioned above, there is some concern that the movement of investigative resources from the FBI’s traditional criminal mission to the counterterrorism and counterintelligence mission may undermine the agency’s ability to aggressively counter crime.121 Issues for Congress ! Is the FBI the appropriate agency to fight terrorism against U.S. interests? Can an organization with a strong and proud law enforcement culture be retrained to engage in the more subtle discipline of gathering and exploiting foreign intelligence domestically, where the end goal may not necessarily be prosecution, but preemption as well as continued collection and exploitation? Can the relatively autonomous relationships between FBI Headquarters and the 56 field offices be successfully rebalanced so centralized priorities established at HQ, are vigorously and successfully implemented locally? The ongoing reformation of the FBI presents multiple opportunities for oversight. ! Are there some federal crimes for which the FBI has jurisdiction that should be devolved to state and local law enforcement? If so, should additional resources be provided to the federal, state and local law enforcement agencies to support training? If not, does the FBI need additional criminal resources given that it may be unlikely that the reprogramming of resources from the criminal to the national security divisions of the FBI in the wake of September 11 will be reversed? ! Given the expansive mosaic of FBI jurisdiction in criminal and national security realms, would a legislative charter clarify and more centrally codify the organization’s roles/responsibilities and jurisdiction? ! If the FBI’s Counterterrorism Division, which has operational responsibilities within the United States, is eventually to be “co-located” with the existing TTIC, what implications, if any, does this have for the potential of U.S. foreign intelligence organizations becoming involved in domestic intelligence activities precluded pursuant to Executive Order 12333?122 120 (...continued) by Todd Masse. See also Gregory F. Treverton, “Time to Spy in America,” Government Executive, Sept. 2003. 121 See Gary Fields and John R. Wilke, “FBI’s New Focus Places Burden on Local Police,” Wall Street Journal, June 30, 2003, p. A1. 122 Executive Order 12333 and other guidelines and statutes prevent federal agencies authorized to conduct foreign intelligence overseas from operating in the United States. However, the FBI, a member of the U.S. Intelligence Community, is primarily charged with domestic intelligence operations. If an entire operational division of the FBI is “colocated”with what is largely a foreign threat intelligence entity (the TTIC), it is not inconceivable that cooperation in foreign and domestic intelligence activities may exceed (continued...) CRS-41 Appendix I: FBI Field Offices (By City Location) A FBI Albany 200 McCarty Avenue Albany, New York 12209 http://albany.fbi.gov (518) 465-7551 FBI Birmingham Room 1400 2121 8th. Avenue N. Birmingham, Alabama 35203-2396 http://birmingham.fbi.gov (205) 326-6166 FBI Albuquerque Suite 300 415 Silver Avenue, Southwest Albuquerque, New Mexico 87102 http://albuquerque.fbi.gov (505) 224-2000 FBI Boston Suite 600 One Center Plaza Boston, Massachusetts 02108 http://boston.fbi.gov (617) 742-5533 FBI Anchorage 101 East Sixth Avenue Anchorage, Alaska 99501-2524 http://anchorage.fbi.gov (907) 258-5322 FBI Buffalo One FBI Plaza Buffalo, New York 14202-2698 http://buffalo.fbi.gov (716) 856-7800 FBI Atlanta Suite 400 2635 Century Parkway, Northeast Atlanta, Georgia 30345-3112 http://atlanta.fbi.gov (404) 679-9000 C FBI Charlotte Suite 900, Wachovia Building 400 South Tyron Street Charlotte, North Carolina 28285-0001 http://charlotte.fbi.gov (704) 377-9200 B FBI Baltimore 7142 Ambassador Road B a l t i m o r e , M a r yl a n d 21244-2754 http://baltimore.fbi.gov (410) 265-8080 122 FBI Chicago Room 905 E.M. Dirksen Federal Office Building 219 South Dearborn Street Chicago, Illinois 60604-1702 http://chicago.fbi.gov (312) 431-1333 FBI Cincinnati Room 9000 550 Main Street Cincinnati, Ohio 45202-8501 http://cincinnati.fbi.gov (513) 421-4310 FBI Cleveland Federal Office Building 1501 Lakeside Avenue Cleveland, Ohio 44114 http://cleveland.fbi.gov (216) 522-1400 FBI Columbia 151 Westpark Blvd Columbia, South Carolina 29210-3857 http://columbia.fbi.gov (803) 551-4200 D FBI Dallas One Justice Way Dallas, Texas 75220 http://dallas.fbi.gov (972) 559-5000 FBI Denver Federal Office Building, Room 1823 1961 Stout St. 18th. Floor Denver, Colorado 80294-1823 http://denver.fbi.gov (303) 629-7171 (...continued) analysis and bleed into joint intelligence operations within the United States. While these types of joint operations may well be warranted given the nature of the terrorist threat facing the Nation, an explicit and statutory authorization of such joint operations would increase transparency and jurisdictional clarity, as well as guard against potential abuses or excesses domestically. CRS-42 FBI Detroit 26th. Floor, P. V. McNamara FOB 477 Michigan Avenue Detroit, Michigan 48226 http://detroit.fbi.gov (313) 965-2323 FBI Jacksonville Suite 200 7820 Arlington Expressway J acks o n v i l l e, F l o r i da 32211-7499 http://jacksonville.fbi.gov (904) 721-1211 E FBI El Paso 660 S. Mesa Hills Drive El Paso, Texas 79912-5533 http://elpaso.fbi.gov (915) 832-5000 K FBI Kansas City 1300 Summit Kansas City, Missouri 64105-1362 http://kansascity.fbi.gov (816) 512-8200 H FBI Honolulu Room 4-230, Kalanianaole FOB 300 Ala Moana Boulevard Honolulu, Hawaii 96850-0053 http://honolulu.fbi.gov (808) 566-4300 FBI Houston 2500 East TC Jester Houston, Texas 77008-1300 http://houston.fbi.gov (713) 693-5000 I FBI Indianapolis Room 679, FOB 575 North Pennsylvania Street In d i a n a p o l i s , Indi a n a 46204-1585 http://indianapolis.fbi.gov (317) 639-3301 J FBI Jackson Room 1553, FOB 100 West Capitol Street Jackson, Mississippi 39269-1601 http://jackson.fbi.gov (601) 948-5000 FBI Knoxville Suite 600, John J. Duncan FOB 710 Locust Street Knoxville, Tennessee 37902-2537 http://knoxville.fbi.gov (865) 544-0751 L FBI Las Vegas John Lawrence Bailey Building 700 East Charleston Boulevard La s V e g a s , N e v a d a 89104-1545 http://lasvegas.fbi.gov (702) 385-1281 FBI Little Rock Suite 200 Two Financial Centre 10825 Financial Centre Parkway Little Rock, Arkansas 72211-3552 http://littlerock.fbi.gov (501) 221-9100 FBI Los Angeles Suite 1700, FOB 11000 Wilshire Boulevard Los Angeles, California 90024-3672 http://losangeles.fbi.gov (310) 477-6565 FBI Louisville Room 500 600 Martin Luther King Jr. Place Louisville, Kentu cky 40202-2231 http://louisville.fbi.gov (502) 583-3941 M FBI Memphis Suite 3000, Eagle Crest Bldg. 225 North Humphreys Blvd. Memphis, Tennessee 38120-2107 http://memphis.fbi.gov (901) 747-4300 FBI North Miami Beach 16320 Northwest Second Avenue North Miami Beach, Florida 33169-6508 http://miami.fbi.gov (305) 944-9101 FBI Milwaukee Suite 600 330 East Kilbourn Avenue Milwaukee, Wisconsin 53202-6627 http://milwaukee.fbi.gov (414) 276-4684 FBI Minneapolis Suite 1100 111 Washington Avenue, South Minneapolis, Minnesota 55401-2176 http://minneapolis.fbi.gov (612) 376-3200 CRS-43 FBI Mobile One St. Louis Centre 1 St. Louis Street, 3rd. Floor Mobile, Alabama 36602-3930 http://mobile.fbi.gov (334) 438-3674 N FBI Newark 1 Gateway Center, 22nd. Floor Newark, New J ersey 07102-9889 http://newark.fbi.gov (973) 792-3000 FBI New Haven 600 State Street New Haven, Connecticut 06511-6505 (203) 777-6311 FBI New Orleans 2901 Leon C. Simon Dr. New Orleans, Louisiana 70126 http://neworleans.fbi.gov (504) 816-3000 FBI New York 26 Federal Plaza, 23rd. Floor New York, New York 10278-0004 http://newyork.fbi.gov FBI Norfolk 150 Corporate Boulevard Norfolk, Virginia 23502-4999 http://norfolk.fbi.gov (757) 455-0100 O FBI Oklahoma City 3301 West Memorial Drive Oklahoma City, Oklahoma 73134 http://oklahomacity.fbi.gov (405) 290-7770 FBI FBI Omaha 10755 Burt Street Omaha, Nebraska 68114-2000 http://omaha.fbi.gov (402) 493-8688 P FBI Philadelphia 8th. Floor William J. Green Jr. FOB 600 Arch Street Philadelphia, Pennsylvania 19106 http://philadelphia.fbi.gov (215) 418-4000 FBI Phoenix Suite 400 201 East Indianola Avenue Phoenix, Arizona 85012-2080 http://phoenix.fbi.gov (602) 279-5511 FBI Pittsburgh 3311 East Carson St. Pittsburgh, PA 15203 http://pittsburgh.fbi.gov (412) 432-4000 FBI Portland Suite 400, Crown Plaza Building 1500 Southwest 1st Avenue Portland, Oregon 97201-5828 http://portland.fbi.gov (503) 224-4181 R FBI Richmond 1970 E. Parham Road Richmond, Virginia 23228 http://richmond.fbi.gov (804) 261-1044 S FBI Sacramento 4500 Orange Grove Avenue Sacramento, California 95841-4205 http://sacramento.fbi.gov (916) 481-9110 FBI St. Louis 2222 Market Street S t . Loui s, Missouri 63103-2516 http://stlouis.fbi.gov (314) 231-4324 FBI Salt Lake City Suite 1200, 257 Towers Bldg. 257 East, 200 South Salt Lake City, Utah 84111-2048 http://saltlakecity.fbi.gov (801) 579-1400 FBI San Antonio Suite 200 U.S. Post Office Courthouse Bldg. 615 East Houston Street San Antonio, Tex as 78205-9998 http://sanantonio.fbi.gov (210) 225-6741 FBI San Diego Federal Office Building 9797 Aero Drive San Diego, California 92123-1800 http://sandiego.fbi.gov (858) 565-1255 FBI San Francisco 450 Golden Gate Avenue, 13th. Floor San Francisco, California 94102-9523 http://sanfrancisco.fbi.gov (415) 553-7400 CRS-44 FBI San Juan Room 526, U.S. Federal Bldg. 150 Carlos Chardon Avenue Hato Rey San Juan, Puerto Rico 00918-1716 http://sanjuan.fbi.gov (787) 754-6000 FBI Seattle 1110 Third Avenue Seattle, Washington 98101-2904 http://seattle.fbi.gov (206) 622-0460 FBI Springfield Suite 400 400 West Monroe Street S p r i n gfield, Illi n o i s 62704-1800 http://springfield.fbi.gov (217) 522-9675 T FBI Tampa Room 610, FOB 500 Zack Street Tampa, Florida 33602-3917 http://tampa.fbi.gov (813) 273-4566 W FBI Washington Washington Metropolitan Field Office 601 4th Street, N.W. Washington, D.C. 20535-0002 http://washingtondc.fbi.gov (202) 278-2000 Source: http://www.fbi.gov/contact/fo/fo.htm CRS-45 Appendix II: FBI Directors 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. Robert S. Mueller, III, 2001-present Thomas J. Pickard (Acting), 2001 Louis J. Freeh, 1993-2001 Floyd I. Clarke (Acting), 1993 William S. Sessions, 1987-1993 John Otto (Acting), 1987 William H. Webster, 1978-1987 Clarence M. Kelley, 1973-1978 William D. Ruckelshaus (Acting), 1973 L. Patrick Gray (Acting), 1972-1973 J. Edgar Hoover, 1924-1972 William J. Burns, 1921-1924 William J. Flynn, 1919-1921 William E. Allen (Acting), 1919 Alexander Bruce Bielaski, 1912-1919 Stanley Finch, 1908 - 1912 Source: www.FBI.gov/libref/directors/directmain.htm CRS-46 Appendix III: FBI Legal Attache Offices /