Crossposted at TIME
The views expressed are the author’s own and not necessarily those of the Brennan Center for Justice.
After a horrible tragedy like the recent attack on Orlando’s Pulse nightclub, it’s natural to wonder what more the Federal Bureau of Investigation could have been done to prevent it. The immediate reaction of the national security establishment to such events is often to argue it needs more power and resources to fulfill its terrorism prevention mandate. But when what you’re doing isn’t working, doing more isn’t the answer.
Omar Mateen, the shooter in Orlando, had been flagged for the FBI before. He was investigated — and cleared — twice, a process that started because of a troubling tip from his co-workers. The bureau is inundated with similar calls every day. The sheer volume of information means valuable resources are spent chasing down false leads, instead of honing in on viable intel about people set to cause real harm.
Repeatedly since the 9/11 attacks, calls for more surveillance have been too quickly answered by politicians eager to show they are doing something, without regard for whether it actually helps or harms our security efforts. The fact is: opening the intelligence collection spigot has left the FBI and other intelligence agencies drowning in irrelevant information. One federal review of the FBI’s pre-attack investigation of Ft. Hood shooter Nidal Hasan, for example, argued this “data explosion” contributed to the investigators’ inability to identify all of Hasan’s relevant communications sitting in FBI databases.
But the increasing data collection is only half the problem. Since 9/11, the Justice Department has repeatedly expanded the FBI’s authorities, making it easier to initiate investigations with less evidence. These lowered standards, combined with ill-conceived “see something, say something” campaigns and “no leads go uncovered” policies, vastly increase the agent workload and divert investigative resources to cases with the least evidence indicating a criminal or terrorist threat.
Attorney General Michael Mukasey made the latest and most significant changes to the FBI’s authorities in December 2008. He created a new type of investigation, called an “assessment,” which could be opened for an “authorized purpose,” but without requiring any particular factual predicate suggesting wrongdoing. The next level of inquiry, a “preliminary investigation,” requires only “information or an allegation” to open renewable six-month investigations. Opening full investigations requires an “articulable factual basis” that “reasonably indicates” someone is planning criminal acts, a standard “substantially lower” than the probable cause necessary for obtaining search warrants or wiretaps.
The FBI opened more than 82,000 “assessments” of individuals and groups in the first two years it had this authority, in addition to thousands of predicated investigations into more than 200 federal crimes. Recognizing the FBI has only 14,000 FBI agents across the country and around the world provides perspective on the increased workload these changes create. When the FBI conducted an assessment of Boston Marathon bomber Tamerlan Tsarnaev based on a warning from Russian intelligence that he planned to join Chechen terrorist groups, it was only one of 1,000 assessments the Boston FBI conducted that year.
Increasing FBI resources to conduct more assessments, or examine subjects more closely or for longer periods of time might seem a positive step. But the data show the vast majority of assessments are false alarms. Of the 82,325 assessments conducted in the two years after this authority was created, only 3,315 discovered information or allegations that justified further investigation. Roughly 96% were dry holes. And only a small percentage of full investigations ever result in charges.
Leaving aside privacy and civil liberties concerns, with FBI agents scrutinizing so many people with so little justification, these false alarms inflict a two-fold cost to security. First is the diversion of resources from investigations based on reasonably objective evidence of criminal or terrorist activity. The second is the dulling effect false alarms have on our counterterrorism response.
The Tsarnaev case is prime example. The Justice Department Inspector General criticized shortcomings concerning the FBI’s assessment of Tsarnaev, most significantly the failure to ask about his travel plans to Russia or his knowledge of Chechen terrorist groups. Both the FBI and CIA placed Tsarnaev on watchlists, and though they “pinged” to alert authorities when he bought airline tickets, traveled to, and returned from Russia, he was not re-investigated or screened as requested at the airport because there were too many other watchlisted people of higher priority traveling that day.
These cases show an overloaded system unable to adequately track and capture the real terrorist threats in this country. Which is why it’s time to rethink how the FBI does its job.
Giving FBI agents more resources might be helpful, but only if the FBI’s investigative guidelines are tightened up to ensure they are focusing on real threats rather than chasing false alarms. Restoring standards requiring a reasonable factual indication of wrongdoing before conducting intrusive, resource intensive investigations will make the FBI more efficient—and more effective.
As an FBI undercover agent in the 1990s, I infiltrated neo-Nazi and anti-government militia groups. The investigations were initiated based on a reasonable indication that people were engaging in precursor crimes, such as trafficking in illegal firearms and manufacturing explosives. This evidentiary standard forced me to focus on the people I had a reasonable basis to believe were engaging in criminal activity—rather than the thousands who were saying things I didn’t like. Those cases successfully prevented terrorism by focusing on those most likely to commit it.
Think of the fire department. More than 3,000 Americans die in fires each year. We try to reduce these losses, with fire codes, smoke alarms, sprinklers, and well-equipped fire departments. But we don’t have a “smell something, say something” program. Instead, it is a crime to pull a fire alarm when there is no emergency, because we know false alarms dull response times.
FBI agents and intelligence analysts have a tough job trying to protect us. Requiring them to do more, instead of better, won’t help.