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Impediments to effective counterintelligence and counterterrorism

Date: October 1-3, 2003

Counterintelligence is vitally important to safeguard effective positive intelligence collection and counterterrorism.  Impediments to counterintelligence damage both. For the last three decades legislative and bureaucratic guidelines have not only prevented necessary counterintelligence operations but have helped create a mindset in the intelligence community that further eroded counterintelligence capabilities.

One example was the notorious “fire wall” between intelligence and law enforcement that prevented the information sharing necessary for effective counterterrorist operations. The “fire wall” was built into the Foreign Intelligence Surveillance Act passed in 1979. It meant that the CIA and NSA could not collect information on U.S. persons engaged in espionage or terrorism, or share such information with the FBI.

Twenty-five years ago, Congressman John Ashbrook and I visited a sensitive collection site abroad and spoke with the director of the operation. Congressman Ashbrook asked if in the course of their work they learned that a US person was working for the KGB, what would they do? The answer was “I’d tear up the report and throw it in the wastebasket. I don’t collect information on US persons.” The Congressman then asked, “what if the US person told the KGB he was planning to murder a US Congressman?” The answer was “I’d chuck in my job and warn the victim.” That kind of thinking has not changed. In the report of the Joint Congressional Inquiry on 9-11 we read, “Both the CIA and NSA are leery of activity that suggests they are monitoring U.S. citizens or conducting assessments linked to the activities of persons in the United States, a task that officials interviewed at these agencies believed belongs exclusively to the FBI.” The report went on “General [Michael] Hayden [Director National Security Agency], senior NSA managers, NSA legal staff, and NSA analysts made clear in Joint Inquiry testimony and interviews that they do not want to be perceived as focusing NSA capabilities against ‘U.S. persons’ in the United States. The Director and his staff were unanimous that lessons NSA learned as a result of Congressional investigations during the 1970s should not be forgotten.” 

All of our intelligence agencies have not forgotten the lessons they learned during the anti-intelligence hysteria of the 1970s. Almost 3,000 Americans died on 9-11 because those lessons were learned too well.

The most destructive piece of legislation impeding counter-intelligence was the Foreign Intelligence Surveillance Act. It is still on the books. Wire tapping of Nazis and Communists had been carried out since it was ordered by President Roosevelt in the 1930s to protect the United States from espionage and violence directed by hostile foreign powers. President Roosevelt maintained that the President had an inherent power to order electronic surveillance of those who would engage in espionage or terrorism against the United States. As a result of the FBI wire tapping of leaders of the Communist Party USA, the US government learned of the extent of Soviet use of American Communists in their espionage operations. The FBI could also boast that during World War II the Nazis were never able to successfully carry out their sabotage missions.

In the 1970s Senator Edward Kennedy campaigned against this FBI activity. In 1976, he told the Senate Select Committee on Intelligence that “For the last five years I, and others in the Senate have labored unsuccessfully to place some meaningful statutory restrictions on the so-called inherent power of the Executive to engage in surveillance.”  He said that “Attorney General Levi in particular has been most cooperative and helpful in the drafting of this legislation.”

If the President did not have the inherent right to order electronic surveillance, then Kennedy argued that it could only be carried out pursuant to a court order. Then began the campaign orchestrated by the American Civil Liberties Union to raise the bar of requirements so high that it became very difficult for the FBI to get such a warrant from the court. In addition, Kennedy succeeded in introducing the concept that an agent of a foreign power had to be someone who collected classified information for a foreign intelligence service. Someone who “only” had a clandestine relationship with a foreign intelligence officer and carried out covert influence operations for a foreign power could not be wire tapped.

Before 9/11, the FBI had received some interesting information. On July 10, 2001, the FBI’s office in Phoenix, AZ warned headquarters that large numbers of Middle Eastern students were attending flight schools and might be a future terrorist threat. They suggested that the FBI collect the names of these people. Little was done. The FBI had the mindset that if someone has not yet committed a crime, they could not be investigated. For years the FBI has only been solving crimes, preventing them was out of the question.

On August 17th the FBI in Minnesota arrested Zacarias Moussaoui on immigration violation charges. He had explained to a flight school that he wanted to learn to fly a jet liner but was not interested in learning how to take off or land. The FBI seized his computer and asked headquarters to obtain a warrant under FISA to download it and tap his phone. They were turned down by FBI headquarters because the bar was so high in FISA that they had to prove to the court “sufficient specific and articulable facts to indicate that the individual’s activities are in preparation for sabotage or international terrorism.” Common sense suspicion of Moussaoui’s strange actions was not enough. After 9/11 the computer was downloaded. Among other things information about the air currents over New York was found. After 9/11 voices in Congress and talking heads on television told us that the FBI had not “connected the dots.” The truth was that they couldn’t collect enough dots to connect. And they couldn’t do so because of the very high bar that had to be reached before a request could be made to the Foreign Intelligence Surveillance Court to obtain a warrant to download a computer or wiretap a phone.

Additional damage was done by the FBI guidelines promulgated by Attorney General Edward Levi in 1976. They prevented FBI investigations unless a clear criminal nexus could be established. These restrictions severely affected counter terrorism investigations. Levi’s guidelines virtually took the FBI out of the business of investigating potential terrorist activity. In the late 1970s, the Maryland State Police received information that a small group calling itself the Maryland Ku Klux Klan was talking about committing acts of violence against Blacks and Jews. A State trooper named John Cook was assigned to penetrate the group. His reports were shared with the FBI, which opened up a “preliminary investigation.” They could not put their own informants in the group, but they could receive information from Maryland State Police. After some time, when the group had not yet carried out their violence, the FBI closed the case. This meant they could no longer even received the information that the Maryland police collected. One night, the Klansmen set out to fire bomb some Black churches, Jewish temples, and the home of a Black Congressman. Cook blew the whistle and the terrorists were arrested. Had the case been handled by the FBI, the violence would have taken place.

New York City and State police, Washington, DC, and many other departments had abolished their intelligence units. Maryland State Police had retained a small unit. The police intelligence units in cooperation with the FBI had a done a good job of protecting us from terrorists. For example, in 1964 the New York City police had penetrated a small terrorist group which received report from Communist Cuba. That year a young Black American radical, Robert Collier was part of a delegation that visited Cuba. When he returned he told his comrades that he had received training from both Cuban and North Vietnamese officers on handling explosives and guerrilla warfare. He had also been put in contact with the French Canadian terrorist organization, the FLQ. He explained that this group would provide the explosives for Collier and his associates to blow up the Statue of Liberty. One of his associates accompanied him to Canada. What Collier didn’t know was that his associate, a young Black man named Ray Wood, was an undercover officer of the New York City Police Department. When they returned to New York with the explosive, Wood gave the signal and Collier and the rest of the terrorist group were arrested.

Wood was a member of an elite New York City Police Department intelligence unit called the Bureau of Special Services. During the 1970s hysteria against intelligence gathering that unit and similar ones in most other police departments were disbanded.

In 1976, the Central Intelligence Agency released its first public report on international terrorism. Its title was “Research Study, International and Transnational Terrorism: Diagnosis and Prognosis.” The low point of the document was the sentence, “Simply stated, one man’s terrorist is another man’s freedom fighter.” This moronic attempt to discuss terrorism in “value-free terms” made it clear that the CIA could not understand the problem, let alone cope with it.

Terrorism is a violent attack on non-combatants for purposes of intimidation to achieve a political objective. While non-state actors usually carry it out, starting in the 20th Century international terrorism almost invariably received the support of patron states.

During the Cold War, the major Patron State supporting terrorism was the Soviet Union. It was assisted by its satellites and clients. These included the East European Communist states, Cuba, and the radical Arab states such as Syria and Libya. The Palestine Liberation Organization, a terrorist group that received Soviet and Bloc support, provided training, on behalf of the Soviet Union, to a variety of non-Arab terrorists. Including Latin American Marxists, supplied by the Cuban intelligence service, the DGI; the Japanese Red Army; West European terrorists supplied by the Soviet KGB and Iranian terrorists, both Marxist and Islamic. German terrorists trained at PLO camps included the Marxist-Leninist Baader-Meinhof group and the neo-Nazi Military Sports Group Hoffmann that in 1980 exploded a bomb at the Munich beer festival that killed 13 people and injured 212. Both Marxist and neo-Nazi terrorists were trained at the same PLO camps in Lebanon.

The Cubans, on behalf of the Soviet Union, also provided support to Marxist-Leninist terrorist groups in the United States. In the 1960s and 70s, Julian Torres Rizo, a Cuban intelligence officer, worked with groups of young American radicals who visited Cuba supposedly to cut sugar cane. He told one such group, “the first thing that a U.S. revolutionary must be convinced of is precisely the fact that he does come from a decadent society, that he comes from a society that must be destroyed….” In the post Cold War period, with the Soviet Union no longer in existence, some of its former client states and organizations continue to provide support to terrorists.

The Weather Underground and its spin-offs provided many of the young activists that received Cuban training in the 1970s. The FBI, handcuffed by the Levi guidelines, lost interest in collecting intelligence information on the Weathermen and similar groups.

The clearest example of this is the Brink’s robbery on October 20, 1981, in which three people were murdered. Remnants of 1970s terrorist groups, the Weather Underground, the Black Liberation Army, and the Republic of New Africa, banded together as the May 19th Communist Organization and attempted to rob a Brink’s truck in order to finance an expansion of their activities. In early 1979, more than two years before the murders, this terrorist group issued a document called Principles of Unity of the May 19th Communist Organization. The document pledged support to terrorists in the United States, South Africa, and Puerto Rico, as well as to terrorists in the Middle East.

This was not enough to alert the FBI. Nor was the fact that Judy Clark, a member of the group, had attended an international conference organized by the PLO in Lebanon in September 1981, shortly before the abortive terrorist “expropriation.” Five hundred supporters of the PLO and other international terrorist groups were in attendance. Clark remained in Lebanon with the PLO for a time after the conference.

After the robbery, the defendants’ “comrades” issued a leaflet:

On October 20, 1981, an attempted revolutionary expropriation of a Brink’s truck in Nyack, N.Y., was carried out by the Black Liberation Army and the Revolutionary Armed Task Force in pursuit of the struggle for land and independence for the Black nation and against fascism in America. Brother Sol (Samuel) Brown, Judith Clark, David Gilbert, and Kathy Boudin were captured at that time.

Months later, the FBI was still unprepared to treat the Brink’s robbery as a terrorist incident. After the testimony of [FBI Director] Judge William Webster before the Security and Terrorism Subcommittee of the Senate Judiciary Committee on February 4, 1982, the Chairman Senator Jeremiah Denton submitted written questions. One of them was:

Director Webster has been quoted in an Associated Press release, based on a year-end press conference on December 29, 1981, as having sgtated that: “It is premature to call the Brink’s case a terrorist incident. It involved a number of former radicals with a history of violence but that amount of money is attractive for any purpose – either terrorists or criminal.”

I assume the FBI is familiar with the contents of Carlos Marighella’s Mini-Manual for the Urban Guerrilla, published in 1969. In that document the author advised underground guerrillas to expropriate funds from banks and similar instututions in order to sustain their revolutionary activities. Do you think that it is likely that this was the underlying motivation in this case?

Judge Webster answered: "At the present time, we have no specific information which would allow a definitive conclusion to be drawn as the motive for the crime."

One can understand why the FBI did not have the information. Under the Levi Guidelines, the FBI was not allowed to read the publications of terrorist groups, until a crime was committed. Then it was too late. In addition, treating the Brink’s case as a simple crime, not as a terrorist activity, allowed the FBI to argue that it did not fail to properly track the terrorist problem. Soon, the uninvestigated May 19th terrorist organization planted a bomb in the Capitol building. A crime having been committed, the FBI could investigate and Linda Sue Evans was arrested for the Capitol bombing. A number of the Brinks terrorists were recently paroled, including Kathy Boudin. Another, Susan Rosenberg and the Capitol bomber, Linda Sue Evans, were pardoned by President Clinton on his last night in office. None of them have repudiated their crimes, although they claim to be sorry for the victims.

The most powerful weapon against terrorists is to inflict defeat on them. The victory over the Taliban and al Qaeda in Afghanistan was both a physical and morale blow to terrorism. Victory is the lifeblood of the terrorists. It enables them to embolden their members and recruit new ones. When terrorists are prematurely released from prison it is a victory for them, and encourages new terrorist recruits.

Terrorist groups are organized in concentric circles. The inner core carries out the violent acts. The next circle provides logistical support, funds, safe houses, etc.  The outer circle provides both propaganda and new recruits. As the new recruit is vetted, he graduates from one circle to another and finally enters the inner circle. The FBI cannot investigate those engaged in “mere” propaganda for terrorism. As a result, they cannot place informants who could work their way from the outer to the inner circle.

Most of the FBI investigations of support groups for terrorism and for hostile foreign powers were closed in the 1970s. As a result the recruiting ground for terrorists and/or spies could not be watched by the FBI. In 1979 testimony before the House Permanent Select Committee on Intelligence FBI Special Agent Donald T. Perrine, who would soon retire revealed that one of his colleagues had said “Gentlemen, where else is the Federal government paying me not to investigate? If I do investigate, I can’t keep a record, If I could keep a record, I can’t disseminate it. And if I disseminate it, I have got to excise it and purge it. So it is in a way for veteran of almost 30 years in the FBI, I feel as though I am not earning my money.”

The USA PATRIOT Act was passed to correct these problems. In some cases it has, but not in others. The Act makes it clear in a number of places that a warrant cannot be obtained for a wiretap based solely on someone exercising his First Amendment rights. This makes no sense. While the First Amendment protects our right of free speech, religion, assembly and press, it does not say that the government should ignore someone who reveals an intent to commit a crime. While the Patriot Act allows the FBI to send an informant into a suspicious group, even if the group is meeting in a church or mosque, let us look at a possible scenario. An informant reports on a speech he heard in a mosque where the speaker said that it would be a good idea to kill Christians and Jews. In all common sense the FBI should put a wiretap on the speaker to see if he tells his friends which Christians or Jews should be killed, and when. However, under the Patriot Act, a wiretap cannot be obtained based solely on the target's exercise of his First Amendment rights. The hypothetical speaker was speaking in a Mosque (Freedom of Religion). He was making a public speech (Freedom of Speech) and he was speaking to a gathering (Freedom of Assembly). If his speech were reported in the extremist press that would constitute Freedom of the Press. The Patriot Act thus provides the hypothetical terrorist organizer with four first amendment rights to protect him from being wire tapped.

There are many other examples of impediments caused by legislation, guidelines and mindset. There was a saying in the FBI “You can’t get into trouble if you don’t do your job.” We will not have repaired our counterintelligence and counterterrorism defenses until that saying no longer has any meaning.