A Better Bureau: How to fix the FBI.

The shocked and dismayed tone of the media coverage and the congressional reaction to the FBI's missteps in handling pre-9/11 terror clues makes it seem as though one day a bunch of agents, unbeknownst to everyone, got together and decided that they would no longer be aggressive in chasing terrorists.

This is a nice bedtime story for the press and Capitol Hill, but the fact is that the culture of caution at the FBI was imposed on it mostly from without -- by the Reno Justice Department, which put the liberal critics of the Bureau directly in charge of it; by Democrats in Congress, who want forever to replay the greatest hits of the FBI- and CIA-bashing Church Committee; and by a cadre of conservatives who let their libertarian instincts and their disgust at Waco and Ruby Ridge overwhelm their sympathy for law enforcement.

This is why the answer to the pre-9/11 failings cannot be found just in internal FBI reforms (although that is certainly important) but in a broader reevaluation by the political class of how the U.S. regards terrorism. It should no longer be considered a problem of domestic law enforcement, with all its necessary safeguards of the rights of U.S. citizens -- it should be a matter of national security, with much more latitude for the government to prosecute the fight against it. Last year's Patriot Act moved in the right direction. But the rules for surveillance of terror suspects need further loosening, and a track entirely separate from domestic law enforcement should be created for terror-related cases.

Much of the FBI's anti-terrorist work is done under the rubric of the 1978 Foreign Intelligence Surveillance Act (FISA), which created a special court to which the FBI would bring wiretap requests in counterintelligence cases. This was an innovation. Previously, surveillance related to national security was done simply on the order of the president or attorney general. FISA curtailed this power in reaction to scandals involving, among other things, domestic spying on Martin Luther King. Mark Riebling, in his book The Wedge, describes the atmosphere in which such scandals were aired in the 1970s: "As various governmental inquiries assumed the aura of Inquisition, the CIA's legal counsel reminded all employees of their rights under the Miranda decision."

The standard for a FISA warrant isn't as high as that for an ordinary criminal wiretap warrant, but does require a finding of "probable cause" that the target is an agent of a "foreign power" or a "group engaged in international terrorism or activities in preparation therefor." This creates a paradox. Riebling quotes a counterintelligence officer complaining about it at the time of FISA's enactment: "In order to convince a judge to issue a warrant, it was necessary to show that sufficient evidence existed, 'probable cause,' yet the collection of that evidence could only be done through surveillance of some sort. A Catch-22 situation!"

In the 1990s, the U.S. tied itself in further knots by treating terrorism as a matter for the criminal-justice system, thus bringing into play all sorts of other restrictions on collecting and sharing information. The CIA is reluctant to provide information for criminal cases out of fear that its sources and methods will be disclosed in open trial. The FBI, meanwhile, was forbidden to share information gathered from grand-jury proceedings. (This changed after September 11.) The absurdity of making the fight against terrorism a domestic legal question reached its height when the Clinton administration was hesitant to accept Osama bin Laden, if handed over by a foreign government, because it couldn't have indicted him.

As long as terrorism in the United States is treated as a criminal matter, a terrorist gets more rights and protections as he gets closer to his target: i.e., if bin Laden is in Afghanistan, we try to bomb him to kingdom come (since there he is an enemy fighter), but if he makes it to Brooklyn, we hesitate even to listen in on his sermons at a mosque (since here he is a domestic criminal). Zacarias Moussaoui -- the alleged "20th hijacker" -- benefited from exactly this dynamic. Whistleblower Coleen Rowley was outraged that FBI headquarters didn't think there was "probable cause" to request a FISA warrant on Moussaoui. But it may well be that the FBI was conscientiously following the letter of the law, displaying the tender regard for Moussaoui's civil liberties that the political culture has demanded. There was certainly evidence prior to September 11 that Moussaoui was a Muslim extremist, but "probable cause" that he was an agent of a foreign power or terrorist group? It was by no means a slam dunk.

What if there clearly was "probable cause" for a FISA warrant in late August? Unless it is determined to be an emergency, the FISA process can be a drawn-out one, as former FBI agent James J. Roth explained in a letter to the Wall Street Journal: "Even assuming that FBI headquarters agreed that there was probable cause, the FISA request still had to be reviewed and approved by the Department of Justice Office of Intelligence Policy and Review; come back to the FBI for the director's certification, which is required by law; return to Justice for the attorney general's approval, also required by law; and get scheduled on the court docket. . . . Simply put, it is unlikely that the request would have reached the court before 9/11."

All of these legal and procedural hoops existed in the context of a culture of timidity, even fear, at the FBI, as Rowley's famous memo says over and over again. "Our best real guess," she writes, "is that, in most cases, avoidance of all 'unnecessary' actions/decisions by FBIHQ managers (and maybe to some extent field managers as well) has, in recent years, been seen as the safest FBI career course. Numerous high-ranking FBI officials who have made decisions or have taken actions which, in hindsight, turned out to be mistaken or just turned out badly (i.e., Ruby Ridge, Waco, etc.) have seen their careers plummet and end. This has in turn resulted in a climate of fear which has chilled aggressive FBI law enforcement action/decisions."

This hints at Janet Reno's role in the Moussaoui debacle. The first World Trade Center bombing in 1993 should have been a sign that organized terrorist cells were capable of operating on U.S. soil, and that perhaps the FISA regime and the U.S. paradigm for fighting terrorism were outdated. But Reno's Justice Department increased all the restrictions. Reno ratcheted up the standards for both criminal and counterintelligence warrants, making the standard less "probable cause" and more "near certainty," and created firewalls between the FBI's counterintelligence agents and the Justice Department's criminal division. As former Energy Department spy-catcher Notra Trulock says, an ethic of "self-deterrence" settled over the FBI.

In the past, there would be loose cooperation between the counterintelligence agents and the criminal division, since monitoring of foreign agents (a counterintelligence matter) could easily turn up evidence for espionage cases (a criminal matter). FISA allowed for this, since it said that intelligence should only be the "primary" purpose of a FISA warrant. But the Reno Justice Department, in the person of Richard Scruggs, head of the Office of Intelligence Policy and Review (OIPR), interpreted "primary purpose" to mean "only purpose," and insisted on nearly zero cooperation between counterintelligence agents and prosecutors.

"Scruggs pursued his separation doctrine with religious fervor, and FBI agents and Justice Department prosecutors considered crossing the line he imposed to be a 'career stopper,'" Ronald Kessler writes in his book The Bureau. "Besides ruining the relationship that had worked so well in the past [between the FBI and prosecutors], Scruggs and OIPR often opposed FBI surveillance requests that should have been approved. Such was the case with the FBI's application to eavesdrop electronically on [Wen Ho] Lee's telephone calls."

Indeed, the badly mishandled Lee case is a perfect preview of how the FBI would drop the ball pre-9/11, with regard to both Moussaoui and the Phoenix memo advocating a critical look at Arabs training at U.S. flight schools: It was hesitant to go for a FISA warrant; it didn't communicate well, as the criminal division didn't learn about the case until it showed up in the newspaper; it got clobbered in the media for alleged racial profiling; and Notra Trulock, who aggressively pursued the case, was publicly pilloried for it. Put these tendencies together -- no FISA, no communication, no profiling, no risk-taking -- and you get the do-nothing culture that so frustrated Rowley.

Meanwhile, few in Congress expressed any interest in loosening the FBI's 1970s-era legal straitjacket (with the exception of the farsighted Sen. Jon Kyl). The FBI had been asking, for instance, to change FISA to include a "roving wiretap" -- which is attached to a person wherever he goes rather than to just one phone line -- as far back as the first Bush administration. To no avail. Congressional conservatives joined liberals in successfully opposing new wire-tapping powers in an anti-terrorism bill proposed by Bill Clinton in 1996. It was during this debate that Henry Hyde says another Republican member told him, "I trust Hamas more than I trust my own government."

Liberals were no better, and generally worse. Part of the Church Committee's doctrine was that the CIA, with its mission of dealing with foreign enemies, should be kept strictly separate from the FBI, charged with domestic work. Vermont senator Patrick Leahy -- who now complains about the lack of cooperation between the two agencies -- accepted this bit of Church Committee wisdom as holy writ. In 2000, he opposed a Kyl proposal to loosen the prohibitions on FBI-CIA cooperation, and entered into the record and endorsed a letter from the ACLU: "The factual predicate has not been established for even concluding that the FBI is not already properly sharing intelligence information," the letter said. "[Since] the Church Committee, it has been recognized that the rights of Americans are better protected (and the FBI may be more effective) when international terrorism and national security investigations are conducted under the rules for criminal investigations."

In light of this, Leahy is in no position to complain about the handling of the Moussaoui case, since the FBI was operating exactly in keeping with his, and the ACLU's, guidance. Even after September 11, Leahy was still clinging to Church Committee orthodoxy. On September 13, he lambasted a proposal of Sens. Kyl and Feinstein to give the FBI more powers: "Maybe the Senate wants to just go ahead and adopt new abilities to wiretap our citizens. Maybe they want to adopt new abilities to go into people's computers. Maybe that will make us feel safer. Maybe. And maybe what the terrorists have done made us a little bit less safe. Maybe they have increased Big Brother in this country."

Despite Leahy's misgivings, the Patriot Act passed, with overwhelming support -- including eventually from Leahy. No longer does acquiring foreign intelligence have to be the "primary" purpose of a FISA warrant; it can be merely a "significant" purpose, providing the FBI considerably more leeway. FBI agents are now allowed to conduct "sneak and peek" searches in which the target is not notified that the search is taking place. The Bureau finally has a roving wiretap under FISA. And the restrictions on CIA and FBI cooperation have been eased. This is all to the good -- but none of it would have solved the Moussaoui problem, since there may not have been "probable cause" that he was a member of a terrorist group in the first place.

This is why the Bush administration went back to Congress after the Patriot Act passed to ask for new FISA language to cover individual terror suspects. But Leahy screamed, objecting that the administration was, like Oliver Twist, asking for more after already having been served the Patriot Act. So, the proposal was dropped.

Now Jon Kyl and Chuck Schumer want to deal with the Moussaoui problem by adding language to FISA covering individual terrorists. The lone wolf would have to be a "non-U.S. person," not a citizen or green-card holder. This is a necessary fix. But while we're at it, it's not clear why the law shouldn't be even looser when it comes to non-U.S. persons, eliminating the "probable cause" standard altogether and moving to a "reasonable suspicion" standard. In the case of Moussaoui, the feds were absurdly arguing over whether to search the computer of someone who not only wasn't a U.S. person, but wasn't even here legally.

The most important point in considering all of this is that fundamental one: Terrorism is an act of war. Therefore, the fight against it shouldn't be a criminal matter, emphasizing high "probable cause" standards to protect a suspect's rights and set the predicate for a punctilious criminal trial. Instead, terrorism cases should be handled on an entirely different track that follows logically from beginning to end. This track begins with efforts at pre-emption, which requires the gathering of intelligence and breaking up of networks rather than the careful step-by-step construction of a specific criminal case. And it should end in military detentions and tribunals, allowing for less inhibited evidence-gathering and other practices inherent to the urgency of combating terrorism.

Last year, the administration had apparently grasped, in its proposal for military tribunals, the need for a separate track for terrorism cases. At least one prominent Democrat, Joe Lieberman, was willing to see Moussaoui tried before a military tribunal. But Moussaoui was nevertheless scheduled for an ordinary criminal trial in a federal court. Now the administration seems to be moving back to a separate terrorism track. The FBI is being re-oriented to a counter-terrorism mission. Meanwhile, the handling of the recent Dirty Bomber case is heartening, from the bomber's preemptive apprehension (as a result of cooperation between the FBI and CIA), to, one hopes, his impending military trial. This would be an effective post-Moussaoui model for counter-terrorism.

It will, of course, produce howls. But at least now we'll see whether all the politicians and pundits who said "Never again" in the wake of the Moussaoui revelations really meant it.