How Far Do We Want The FBI To Go?

By MICHAEL DUFFY AND NANCY GIBBS

Back in the dark, scary days of autumn, top law-and-order men like John Ashcroft and Tom Ridge pinned little silver sheriff's stars to every American chest and told us to be vigilant, form neighborhood watch groups and report anything suspicious. The 911 lines promptly jammed, local cops chased flocks of wild geese, and no one felt much safer.

Too much information, it turns out, is sometimes not much better than too little--especially if the information ends up in the hands of a federal agency that doesn't know what to do with it, an agency that hates embarrassment above all things. So it was extraordinary to see last week what it takes to bring an agency like the FBI to its knees, make it admit defeat and promise--yet again--to mend its ways. Minneapolis, Minn., agent Coleen Rowley's blistering 13-page memo, first published by TIME, detailed some warnings that had been ignored and the opportunities that were missed even when the FBI agents working on the strange case of suspected terrorist Zacarias Moussaoui implored headquarters to act before something really bad happened.

Rowley's memo ripped into FBI chief Robert Mueller just as he was changing the way the bureau hunts terrorists in the U.S.--nine months after he first made that very same promise. Mueller announced Wednesday that he was retargeting more agents at the terrorists, empowering local field agents to seize the initiative, centralizing information in Washington so that every agent would know what every other agent was doing and creating a special branch of analysts to think through every unimaginable possibility. Mueller cited Rowley's memo and an e-mail written last summer by agent Kenneth Williams in Phoenix, Ariz., as proof that the bureau was broken and needed repairs. "We have to develop the capability to anticipate attacks," he said. "We have to develop the capability of looking around corners."

Nobody was arguing with that, but not everyone was applauding Thursday when Attorney General Ashcroft announced that he was rewriting the rules that govern the way FBI agents launch and conduct probes of suspected terrorists here at home. The new rules, Ashcroft said, would help the feds prevent terrorist strikes rather than deal with them after they happen. But lawmakers of both parties complained that Ashcroft had cast off a 26-year-old policy without giving them any notice. Civil libertarians cried that the FBI was trampling on privacy in the name of security. And even George W. Bush's chief of staff, Andrew Card, was irked that the White House had been left out of the loop.

The new rules were presented as dramatic reforms to protect us, and yet for many people the truly shocking discovery was that the FBI had not been doing these things all along: surfing the Web, sifting through commercial databases, lurking in chat rooms, monitoring public activities. Under the old rules, Ashcroft said, FBI agents were proscribed from doing what any local cop or reporter or concerned citizen would do. An Ashcroft staff member recalls the tortured investigation of Sheik Omar Abdel Rahman, the blind sheik convicted after the first World Trade Center bombing in 1993. "Here was a guy you knew had ties to a terrorist organization," he says. "You knew he was meeting with his followers in the mosque. The agents couldn't go in. They had to stop at the door because no crime had been committed yet. You look at that and say, 'You've gotta be kidding me.'"

The old guidelines were designed in response to the ugly days when dossiers were built, surveillance kept and blackmail threats held over the heads of people whose only crime was to criticize the U.S. government. But over the years of scandals and lawsuits and congressional inquiries, the rules became as encrusted with legal debris as the tax code. The FBI tried to amend them from time to time, including after the Oklahoma City bombing. But the Clinton Justice Department fought back with hand-to-hand combat and eventually convinced Director Louis Freeh that he had more than enough authority to do what he needed. Said a Republican official familiar with the fight: "The great irony is that most of these limits have been self-imposed. While everyone worries that our civil liberties are being trampled by the CIA and FBI, they've been hamstringing themselves."

Ashcroft and Mueller hope the new guidelines will change all that. Agents can now watch websites where bad guys trade explosives recipes and stolen credit-card numbers. Field agents will have the power to launch preliminary "terrorism enterprise investigations" without prior approval from headquarters, and they can last as long as a year instead of the previous 90 days. Memos like the one released last week, in which an Oklahoma City agent warned back in 1998 of "large numbers of Middle Eastern males receiving flight training at Oklahoma airports in recent months," will in theory no longer get buried on supervisors' desks.

Taken together, the exposure of the Phoenix, Minneapolis and Oklahoma City memos forced Mueller to back down from the position he had publicly taken in September, when he declared that there had been "no warning signs" that an attack might be in the works. Last week he came closer than anyone else has yet to accepting responsibility for what happened--despite the fact that he took office the week before the Sept. 11 attacks. "I cannot say for sure that there wasn't a possibility we could have come across some lead that would have led us to the hijackers," he said.

That was probably further than the White House wanted Mueller to go; such mea culpas invite talk of a never-ending blue-ribbon commission--something the Bush team dreads. But there are few signs that the White House is, in fact, dissatisfied with Mueller. Even before last week, he quietly replaced more than a third of the FBI's senior executives, hoping to break open the culture of caution that so stymied agents in the field. Sources tell TIME that Mueller is actually policing top agents' efficiency by insisting that each document be marked to indicate how long the author took to prepare it. And Mueller has discovered that when he can't retrieve a document from the FBI's impenetrable archives, he can usually call someone at the CIA, where many of the same papers are more carefully sorted and filed. "The FBI," notes an agency official, "is archivally challenged."

But Mueller, like his predecessors, is walking a narrow line. "The reason the folks at FBI headquarters are paralyzed is they have to undergo a Senate inquisition every time they act," says a former Clinton Justice Department official. "If they investigate Wen Ho Lee, it's profiling. If they don't investigate, they're attacked for letting the China stuff go by. They can't win. They are paralyzed because the Senators who are jumping up and down today about the FBI being paralyzed will be jumping up and down tomorrow when they go too far."

Both Mueller and whistle-blower Rowley will be pressed hard about the FBI's many problems and the wisdom of the new rules when they testify on Capitol Hill this week. Bureau veterans are the first to say that little in last fall's antiterrorism bill or last week's new rules would have helped stop the hijackers as they went about planning their strike. The problem was not just that clues pointing to the 19 terrorists weren't discovered; it was also that wispy evidence and agents' observations about the possibility of hijackings weren't being analyzed, evaluated and judged for their meaning. That's one reason insiders say the most important reform may be Mueller's creation of an Office of Intelligence, staffed with foreign-language speakers and regional experts who will report to FBI counterterrorism chief Dale Watson. "For years," says a former Justice official, "the analysts were not the heroes of this agency. Nobody wanted to be one. Nobody wanted to listen to them."

So can the FBI turn itself into a domestic CIA? "The question now is, How quickly can you change a complex political culture?" says Joseph Nye, dean of Harvard's Kennedy School of Government. Spy agencies such as the CIA are all about cracking codes, uncovering secrets. "During the cold war," Nye says, "they didn't believe it was important unless you had to steal it. But some of the biggest and hardest questions are mysteries--and most of the answers to a mystery are available in the public domain and just have to be assembled." At the FBI, "getting people to sit in the back office and connect dots has not been their strong suit. Now they know they have to do it. The question is, Will they?"

Any move to make it easier for federal agents to track what private citizens do privately, though, makes libertarians on the left and right edgy. On Friday, House Judiciary Committee chairman James Sensenbrenner, a conservative Republican, said he was "deeply troubled by the Department of Justice's failure to consult with Congress over changes to investigative policies that have been in place for more than 20 years." Civil libertarians warned that however sensible the reforms sounded, the potential for abuse by "cowboy" agents was great and that the letter and spirit of the Constitution do not endorse the sacrifice of privacy for security. "You could make the country safer from terror by attending every meeting at every mosque, but do you want to do that?" asks Robert Litt, a top Justice official under Janet Reno. "The question will be, What do they do and where do they go with this new power?" Polls have consistently shown a public willingness to trade some privacy for security. The harder questions are, Whose privacy, and how much, and will it actually do any good?

--Reported by James Carney, Massimo Calabresi, John F. Dickerson, Elaine Shannon and Michael Weisskopf/Washington

With reporting by James Carney, Massimo Calabresi, John F. Dickerson, Elaine Shannon and Michael Weisskopf/Washington