Protecting the Nation: The FBI in War and Peace
Graphical Highlights
Since 9/11
In the period since September 11, there has been a six-fold increase in the number of the FBI referrals for the prosecution of individuals classified as international terrorists, according to very recent Justice Department data.
Prior to the attacks, there were an average of 10 such referrals a month. From September 11, 2001 to the end of March 2002, the monthly average jumped to 59. (See graph and table.)
The surge in international terrorism referrals from the bureau -- there were a total of 395 of them in the six months after 9/11 -- shows how dramatically the federal government’s practices in this narrow enforcement area have changed.
From other perspectives, however, the impact of the 9/11 events on FBI enforcement has so far been surprisingly limited. During each of the last five years, for example, drug violations, bank robberies and frauds against banks, mostly by credit card, were the subject of more than one third of all FBI referrals for prosecutions and more than half of all FBI convictions. Notably, during the months since 9/11, these proportions hardly changed; with 39% of bureau’s referrals and 54% of its convictions still involving the same kind of matters, many of which could be handled by local authorities. (See graph.)
For a variety of reasons, relating partly to the basic dynamics of the criminal justice system and partly to what appear to be unofficial shifts in how federal officials define terrorism, caution is advised in the interpretation of these numbers. (See below.)
For all the FBI matters that were classified as international terrorism by the Justice Department -- and in one way or another were acted upon during the six months following September 11 -- assistant U.S. Attorneys declined to prosecute 61% of them. Although the declination rate for the first months of FY 2002 actually was higher than for the previous fiscal year, it was broadly similar to the annual rate since 1997. (See table.)
The proportion of terrorism matters rejected by federal prosecutors is higher than for all matters handled by the FBI. Considering the fact that international terrorism must be the single most serious threat confronting the FBI, the comparatively high declination rate is surprising. One explanation, of course, is that these kinds of cases presumably are much more challenging when it comes to gathering evidence that can be presented in federal court. This explanation is somewhat undermined, however, when the reasons that assistant U.S. Attorneys recorded for their declination decisions are considered. During the first months of FY 2002, half of the referrals were turned down because of assistant U.S. attorneys decided there was a "lack of evidence of criminal intent” or that "no federal offense [was] evident.” (See table.)
Faced with growing evidence of possibly serious intelligence lapses, FBI Director Robert S. Mueller III on May 29, 2002 announced plans for what he said would be "a redesigned and refocused FBI.” As part of this proposed change, the director presented a new list of FBI’s ten top priorities for the post 9/11 world. Number one was the obligation to "Protect the United States from terrorist attack.” Number two was on a related subject: "Protect the United States against foreign intelligence operations and espionage.” Next in the list of FBI priorities was the mission to "Protect the United States against cyber-based attacks and high-technology crimes.” Four and five concerned combating "public corruption at all levels” and protecting "civil rights.”
The FBI Director also said he was shifting the assignments of a small number of special agents --only 5 percent of the current roster of around 11,000. Within the bureau, 400 agents previously assigned to the war on drugs and 118 who had been on the white collar crime and crimes of violence teams were re-assigned, 480 of these to the counterterrorism field. (see graph.)
But in large old bureaucracies like the FBI, publishing a new list of agency enforcement priorities and giving new assignments to some agents does not always result in the hoped for results. A possible illustration of the challenge can be gained from the FBI budget submission submitted to Congress by former Director Louis Freeh more than three years ago in the wake of the bombings at the World Trade Center and the federal building in Oklahoma city.
Mr. Freeh -- in his five-year strategic plan -- told Congress that hard choices had to be made. In a world of scarce resources, he said, "issues which have the potential for the gravest consequences must receive priority. The FBI’s goal must be to prevent horrific acts such as Oklahoma City or the World Trade Center bombings from occurring.”
Freeh’s 1999 strategic plan envisioned three tiers of enforcement activities. The number one target was to be "foreign intelligence, terrorists and criminal activities that directly threaten the national or economic security of the United States.” The specific FBI goal: to "prevent, disrupt and defeat terrorists operations before they occur.”
Despite the sweeping promises, overall enforcement priorities of the bureau so far have remained essentially unchanged.
As noted above, however, Mr Freeh’s pronouncements appeared to have little impact in how the FBI actually was enforcing the law. In FY 1997, fully half (50%) of all FBI convictions were for drugs, bank robbery and bank fraud (largely by credit card). Under Freeh’s strategic plan the importance of these crimes was downgraded, given a priority below that of terrorism and major white collar crime conspiracies. Five years later, however, the concentration of these crimes, if anything, has crept higher -- 54% in the first six months of 2002. (See table.)
Month after month, year after year, usually in a regularized way, a factory produces widgets. In the case of the FBI -- month after month, year after year, the standard "widget” is a finding that the bureau has uncovered sufficient evidence for federal prosecutors to consider bringing criminal charges against an individual suspect. In the wake of September 11, Attorney General Ashcroft predicted revolutionary changes. "When terrorism threatens our future, we cannot afford to live in the past,” he told a group of Justice Department officials. "We cannot do everything we once did because lives now depend upon us doing a few things very well.”
Matter-by-matter information from the Justice Department, however, indicates that changes in the production of widgets by the department’s primary investigating agency were not as significant or long lasting as might have been anticipated. In the period immediately before the attacks, the FBI referrals were running around 3,300 a month, although December 2000 came in lower and March 2001 higher. With the attacks, and the necessary diversion of FBI agents from their normal duties, referrals in September, October, November and December dropped by about a quarter, 23 percent. Then, in January of 2002, the production of widgets began to pick up and by March FBI referrals were back to the pre 9/11 norm of about 3,300. (See graph and table.)
One apparent indication of the pre 9/11 concern about terrorism of the FBI under former President Clinton was the sharp increase in "intelligence officers” hired by the FBI in the 1990s. From FY 1992 to 2000, this category of FBI employee increased from 224 to 1,027 or 357%. (See graph and table.) From what is know, an intelligence officer’s duties are to analyze disparate pieces of information and connect the dots. Curiously, however, recent quarterly data indicate that from December 2000 to December 2001 the number of intelligence officers employed by the bureau actually had declined by 5 percent. (See graph and table.)
The prosecution of Arthur Anderson, the collapse of Enron and investigations of Wall Street analysts suspected of pushing the sale of questionable stocks have generated garish headlines in the last year about white collar crime. The FBI, of course, has long been viewed as the lead federal agency when it came to investigating these complex kinds of crime.
Very recent Justice Department data, however, suggests that the FBI’s interest in white collar crime may be waning. During the last five years, bureau referrals for what the department classified as white collar crime have hovered around 33% of the total of all referrals, down from 40% in the mid-90s. During the first six months FY 2002 the proportion of white collar crime matters sent to the prosecutors dropped to 29.6%. (See table.)
By contrast, drug referrals by the FBI are on the rise. In 1992 , such cases represented 9.4 percent of all FBI referrals, in 2001 17.3% and in the first six months of 2002 17.4%. (See table.)
An examination of the Justice Department data suggests that in several ways the FBI’s overall enforcement performance improved over the last decade. While the FBI referrals for prosecution are substantially lower than they were in 1992, the evidence suggests this decline may indicate the FBI is doing a better job focusing on significant criminal suspects. (See graph.) The proportion of FBI referrals for prosecution that resulted in conviction has gradually grown -- from 25% in FY 1992, to 41% in the first six months of FY 2002. (See table.) During the same years, the proportion of those found guilty on the basis of an FBI investigation also moved higher -- from 67% to 80%. Median FBI sentences -- half got more, half got less -- went up from 18 months in FY 1992 to 30 months from October 1, 2001 to March 31 2002. (See table.)
Cautionary Note
Given the horrendous events of last September, the bombing of the Cole, and the violent attacks on the U.S. embassies in Kenya and Tanzania, the increased focus of the FBI on international terrorism is clearly justified. It should be understood, however, that while the recent sharp increase in terrorism referrals in the United States does indeed mark a growing government concern, the increase is not an index of terrorist crimes. Public confusion about the imperfect connection between enforcement efforts and crime patterns is a continuing reality at all levels of government. When a city police department makes an administrative decision to increase the number of officers assigned to deal with a particular problem like drugs, for example, drug arrests then go up. But newspaper editors and the public often jump to the false conclusion that the growing number of arrests necessarily means there is a growing use of illegal drugs by the city’s residents. In the same way, the recent six-fold increase in terrorism referrals by the FBI should not be read as indicating there has been a parallel increase in terrorism crimes.
Assistant U.S. Attorney David Brown said the investigation leading to the indictments was "necessary and successful” because it made Charlotte’s airport less vulnerable to terrorists. In previous years, these 66 cases almost certainly would have been classified as simple immigration matters. But in the post 9/11 world, the choice was obvious and each one was officially placed in the "domestic terrorism” category.
The result of this classification decision was a substantial expansion in the government’s official count of domestic terrorism cases. This increase, in turn, can be read in several not necessarily incompatible ways: as a sign of the growing threat of terrorism, or as an outstanding example of the government’s successful "war on terrorism,” or as an indication of the jumpy mood of the federal government when it comes to dealing with a serious problem.
By its very nature, the under cover work of the FBI is secret and not subject to public examination. But in a highly unusual interview with The Washington Post in June, Robert S. Mueller III said the bureau at the present time has a "substantial” number of individuals it suspected of ties to terror under round-the-clock FBI surveillance. "Our biggest problem is we have people we think are terrorists. They are supporters of al Qaeda.... They may have sworn jihad, they may be here in the United States legitimately and they have committed no crime,” Mueller said. He added that the bureau had been "pushed, really pushed” to keep up with these suspects.
The current intense surveillance of individuals who may be connected to terrorism but are not believed to have committed a criminal act, recalls the Cold War years when the bureau maintained constant watch over thousands of subjects thought to have some connection with the Soviet Union.
Report Date: June 17, 2002
