How the FBI's intelligence experiment went wrong

For the second time in two decades, the FBI finds itself in turmoil. This time, unlike the first, the problem is of the bureau’s own making — and it needs to course-correct quickly, for the sake of itself and the country it serves.

To do so, one must consider that earlier tumultuous episode and how the response to it ultimately led to the second.

The events of 9/11 have been variously described as a gut punch or a Mike Tyson uppercut to the FBI. Unprepared to understand the threat before the attack or to immediately respond afterward, FBI agents across the country went home to email documents and photographs of the terrorists using their personal AOL accounts because, unbelievably, they lacked technology at work. Then-Director Robert MuellerRobert (Bob) MuellerCNN's Toobin warns McCabe is in 'perilous condition' with emboldened Trump CNN anchor rips Trump over Stone while evoking Clinton-Lynch tarmac meeting The Hill's 12:30 Report: New Hampshire fallout MORE, who had experience in criminal matters as a prosecutor and Department of Justice official, had been on the job just seven days on that Tuesday morning, but he knew the bureau had to change — and fast.

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There were cries to break up the FBI or establish a stand-alone internal security service like Britain’s MI5. Mueller reflexively knew that was a bad idea for two reasons: Other democracies with internal services didn’t have a Constitution and Bill of Rights, and most of those services wanted what the FBI already had — the ability to use criminal investigative tools in the fight against terrorism and counterintelligence threats.

Early into his mission to rapidly change the bureau into an intelligence-driven organization, he looked across the Potomac River and found a mentor in then-CIA Director George Tenet. Both were old hands in Washington, and one of the first things Mueller noticed — and decided the FBI needed — was that the CIA was more of a headquarters-centric organization. Operations, analysis and decisionmaking were primarily overseen from Langley and executed in the field. To the contrary, Mueller’s predecessor, Louis Freeh, used to travel to FBI field offices and proclaim the FBI was a field-centric organization supported by HQ. Mueller set about changing that, and the FBI’s headquarters would play a more substantive role going forward.

A Directorate of Intelligence was established, an executive from the National Security Agency was brought in to run it, and the FBI hired hundreds of analysts to work in the new intel shop. In addition to what it had done exceedingly well for almost 100 years — investigations — the FBI would connect the dots of future threats. 

Nearly two decades after 9/11, and seven years after Mueller left the FBI, the investigation code-named “Crossfire Hurricane” — the investigation of Donald Trump’s campaign and its supposed collusion with Russia — has exposed some flaws in Mueller’s dream of an intelligence-led FBI.

When the FBI became intelligence-driven, it didn’t have to stop being fact-driven. Exhibit A is Christopher Steele, who was never a collector of facts — he was a former foreign intelligence officer, and there’s a huge difference: A spy’s singular mission is to break the laws of the countries to which they are assigned and get citizens to commit espionage. Facts don’t matter — only results. The FBI agents who handled or listened to Steele should not have treated him as the confidential human source he never was but as a conduit for the transmission of unverified information.

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When intelligence started coming into headquarters from Steele and other confidential sources, it was treated as part of a labyrinth of possibilities. Unlike a criminal investigation, where facts matter, none of what the bureau got was verifiable. Yet no one involved at HQ appears to have cared if the intelligence on Trump campaign allies Carter Page, Michael Flynn, Paul Manafort and Roger Stone was factually true. (The latter two later were prosecuted for crimes that occurred before and after the campaign.)

To the headquarters executives and lawyers running the Trump-Russia investigation, this was the best of both worlds: a criminal investigation into Russian collusion masquerading as a counterintelligence case, where information was not evidence and therefore fungible. 

Former FBI Director James ComeyJames Brien ComeyFBI director Wray orders internal review of Flynn case Grenell says intelligence community working to declassify Flynn-Kislyak transcripts FBI director stuck in the middle with 'Obamagate' MORE, in testimony to Congress on national television, announced that a counterintelligence case had been opened on the Trump campaign. Think about that: The very announcement that a counterintelligence case exists is, de facto, the end of such an investigation; the “enemy” knows the jig is up. Did Comey really know that little about counterintelligence? 

Even after President TrumpDonald John TrumpMulvaney: 'We've overreacted a little bit' to coronavirus Former CBS News president: Most major cable news outlets 'unrelentingly liberal' in 'fear and loathing' of Trump An old man like me should be made more vulnerable to death by COVID-19 MORE took office, the FBI was running a criminal investigation under the rubric of a counterintelligence investigation. How do we know? Because it was perhaps the most important case in the history of the bureau and they didn’t tell the boss. If it really was a counterintelligence case — that’s what the Foreign Intelligence Surveillance Act (FISA) is used for, after all — why hide it from the chief consumer of counterintelligence, the president?

On Jan. 13, 2017, the FBI interviewed Steele’s only sub-source and determined his dossier on which the entire Russia collusion case was built was bogus. Not only were the four subjects of confidential information not suspects in the crime, but the FBI now knew there was no crime. What law enforcement agency keeps investigating a crime it finds out didn’t happen? Answer: one that has parallel counterintelligence authorities. 

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So, agents pressed on with three additional FISA warrants, a legally dubious approach to getting then-national security adviser Michael Flynn to lie about a conversation with the Russian ambassador, for which the FBI already had a transcript, in order to prosecute him for the lie or get him fired. And they opened a criminal investigation on the president of the United States for lawfully firing Comey. These tactics might have been laudable had the FBI been a foreign intelligence agency directing agents against a foreign target, not against American citizens and a presidential administration.

Mueller was right in 2001 that the FBI needed to focus on intelligence, and he’s widely credited with keeping the bureau intact. What the FBI got wrong in Crossfire Hurricane was confusing the use of criminal tools toward targets they more rapidly could have identified as potential threats by better using intelligence. The FBI also should not have turned loose intelligence techniques on American citizens with a criminal investigation for a crime they couldn’t show even existed.

Now, the FBI must get this right and restore its credibility with the American people, who need the bureau to protect them from criminals and foreign threats while also protecting our civil liberties. 

James M. Casey was a law enforcement officer for 32 years, 25 of them at the FBI. He served on the National Security Council in 2004-2005 and retired in 2012 as the Special Agent in Charge of the FBI’s Jacksonville Division. He is president of FCS Global Advisors, an investigative and crisis management firm.