Jewish World Review Oct. 15, 2001 / 28 Tishrei, 5762
The SIOC's approximately 60 miles of fiber-optic cable are emblematic of the FBI's turn from a reactive into a proactive institution. Its specialty has been investigations of crimes, leading to indictments -- investigations triggered by "criminal predicates," meaning evidence that a crime had been committed or is imminent. Suddenly, a huge open-ended mission is prevention -- turning over rocks in order to disable terrorist cells.
The clear demarcation between national security investigations and criminal investigations is becoming blurry. Hitherto there was little commingling of the tasks of prevention and prosecution. Terrorism mixes the missions of prevention -- gathering intelligence -- and bringing offenders to justice.
Timeliness is everything in counterterrorist investigations, but they must conform to the Foreign Intelligence Surveillance Act, which extended Fourth Amendment privacy protections to electronic surveillance for gathering national security intelligence. However, FISA was enacted in 1978, before cell phones and the Internet. It should be reconsidered, given that the terrorists organized the Sept. 11 onslaught using disposable cell phones and computers in libraries, Internet cafes and Kinko's.
Mueller believes the public will now be part of the nation's threat assessment process: Americans will be more suspicious, reporting peculiar behavior to authorities. Judges, too, may have new sensibilities suited to an era of terrorism -- sensibilities that may color their considerations of requests for wiretaps, access to computer hard drives and other forms of surveillance covered by Fourth Amendment privacy protections. Agencies seeking surveillance powers will still have to demonstrate to judges probable cause, but that is an elastic concept. Probability is in the eye of the beholder, and judges may see that differently when looking through the lens of the terrorist threat.
The current crisis may crack the resistance to reform inherent in institutions, such as the FBI and armed services, that have -- and should have -- cultures of confidence and elan. New skills, support structures and attitudes will be necessary as the FBI's basic mission is broadened beyond building prosecutable cases to preventing terrorism by implacable disruption of those planning it. Congressional habits also should change.
Congress frequently uses crime policy for legislative grandstanding, courting constituencies by turning certain offenses into federal crimes. So the FBI finds itself burdened with enforcing things like the Church Arson Prevention Act and the Deadbeat Parents Punishment Act. This even though the number of FBI agents (about 11,500) has been essentially constant since 1994 and in the current crisis some retired agents have been called back into service.
With 40 percent of agents now working the response to Sept. 11, this may be a good time to be a bank robber. But, then, it is time to take some things off the FBI's overflowing plate, perhaps removing bank robbery -- and credit card fraud, many narcotics, computer and white collar crimes, and protecting facilities such as Hoover Dam ("national infrastructure protection").
The FBI is designated the leading agency for counterterrorism, but receives only 1 percent of the government's anti-terrorism budget. The FBI has some technological marvels, such as the fingerprint tracking system that in 17 minutes can match a fingerprint with one in the 38 million criminal prints in its database. However, approximately 13,000 FBI computers are four to eight years old -- ancient because incompatible with much software. Mueller wants more capacity for "database migration." For example, the FBI should be able to communicate with the Immigration and Naturalization Service in seconds rather than days. Hence Mueller's priority -- an information infrastructure (and linguists and analysts) to support collaborative work among the 42 federal agencies concerned with intelligence and counterterrorism.
Terrorism may make Americans less concerned with hermetically sealing domestic law enforcement from intelligence gathering, more willing to extend government investigative powers over new information technologies and more inclined to authorize investigations to discover whether individuals are dangerous, rather than to authorize investigations only when convinced the individuals are dangerous. There will be a constant weighing of rights against the potentially catastrophic costs of inhibiting government's protective measures.
The FBI will be at the center of a weighing process deeply discomforting to a nation that since the civil rights revolution has defined civic health in terms of the multiplication and expansion of