G-Men’s Guilt

Is there a “tyranny of the case file”? The criminal investigator, whose “case file” is at issue, must have the ability to size up facts through the prism of potential charges and knit together evidence accordingly. The rule of law, without which there is no liberty, depends on these talents.

But is this skill-set, epitomized by the American FBI agent, somehow inimical to what national security demands in an era of terrorist peril? Can the G-man be a competent intelligence analyst who can stop the next bombing rather than solve it only after lives have been lost?

For Richard Gid Powers, the answer is yes and no. His latest in-depth law enforcement study, “Broken: The Troubled Past and Uncertain Future of the FBI,” buys a good deal into the dubious notion that the law enforcement and intelligence missions are inherently at loggerheads. Unlike other bureau critics, however, he believes the FBI is evolving, under Director Robert Mueller, into a top-notch counterterror force. He thus has it half right.

Powers' tome is an exercise in irony. He is a historian whose subject is the FBI. His theory is that the FBI is a great institution that, like other great human institutions, is terrific but flawed at what it does best, namely, investigating crime; but it is so myopic and turf-driven regarding this mission that it tends to miss larger trends, such as the nature and imminence of the terror threat prior to 9/11.

Yet, Powers is himself guilty of the same type of error. Like an agent for whom focus on the case file may — but doesn't necessarily — cause him to miss more consequential developments, Powers has made his subject the center of his universe. This leads him to see the FBI as a principal cause of intelligence failure when, in fact, it is more aptly seen as an interested bystander sometimes rendered ineffective by greater forces that Powers sometimes glimpses but often simply misses.

In large part, this is because Powers makes another mistake that commonly plagues case-obsessed agents — he falls in love with witnesses he should be challenging. Here, it is Sen. Richard Shelby, who has been scathing in evaluating the FBI's pre-9/11 performance. Shelby's ire — enthusiastically echoed by Powers — targets the failure of the FBI's intelligence division and its criminal division to have communicated effectively, causing the bureau to miss opportunities to disrupt the suicide hijacking plot.

But this was hardly the FBI's fault. The procedural “wall” erected between the two divisions was imposed on the FBI, first by the Congress in over-reacting to the spy scandals of the 1970s by enacting a law (the 1978 Foreign Intelligence Surveillance Act) that put domestic intelligence collection under court supervision; then by the courts, which attributed to the statute more restrictions than it literally contained, and finally by the Justice Department, which in the mid-1990s heightened the wall immeasurably.

It is fair enough to say the FBI could have performed better in the run-up to 9/11. But it did not cause intelligence failure. That was caused by the Justice Department and congressional committees, like Shelby's, which were derelict in their oversight responsibilities and in remedying policies that virtually guaranteed failure. These institutions, in turn, were cowed by fear of the public backlash civil liberties activists inevitably incite at the merest suggestion of sensible national-security measures — like allowing agents to compare notes.

Powers demonstrates the populist urges in the Teddy Roosevelt era that led to the creation of the FBI, and convincingly shows that through all its highs and lows the bureau has been, foremost, a creature of the popular will. It has become more or less deferential toward individual liberty depending on public attitudes.

Powers insightfully perceives that this is a worrisome correlation. Effective national security, he sees, hinges on developing capable intelligence collection and analysis, even if there is political resistance. Nevertheless, after acknowledging that President Bush and Attorney General John Ashcroft have embarked on precisely this essential project with measures like the Patriot Act, he suggests they must be replaced for failing to convince Americans of their commitment to civil liberties — thus aligning himself with the problem rather than the solution.

“Broken” often reads as if Powers is arguing with himself over whether the salient issue is the FBI or the innate hostility of a free people to an effective domestic intelligence apparatus. While the history is engaging, the analysis would have benefited had Powers made up his own mind first.

– Andrew C. McCarthy, a National Review Online contributor, prosecuted Sheik Omar Abdel-Rahman and the 1993 World Trade Center bombers.