The Handcuff Handicap

This summer, the Washington Post ran a remarkable story reporting that the director of national intelligence had given the FBI the lead in "coordinating domestic intelligence gathering activities." The article warned of a tidal change in the intelligence landscape — and yet it disappeared almost immediately from the news cycle. This lack of attention hints that the significance of the change, seemingly minor on paper, but actually having profound national security ramifications in the long term, has eluded U.S. policy-makers.

Although the law prohibits the CIA from conducting surveillance on U.S. citizens, the agency is allowed to operate domestically — chiefly to gather information from Americans who have traveled abroad, and to recruit foreigners who are in the United States. Our home soil is thus a remarkably fertile — and readily available — source of intelligence on what is happening abroad.

One could argue, as apparently the FBI did, that domestic intelligence-gathering should fall under the purview of an agency whose chief focus is domestic. But rather than handling the new authority in the spirit of mutual cooperation, a major FBI field office immediately held a meeting with corporate executives on the west coast and told those execs the FBI was now in charge of corporate contacts and that the execs should cut all contacts with the Central Intelligence Agency. News of the FBI’s power play only surfaced because, unbeknownst to the FBI, one of the corporate execs was ex-CIA.

Such heavy-handed tactics demonstrate that at least some FBI staffers think spiking the wheels of the CIA’s domestic activities is a fine idea, which casts grave doubt on the willingness and ability of the FBI to be an impartial coordinator. It was not, however, the only major red flag attached to the rule change. Assigning the FBI as "coordinator for domestic intelligence" and ceding the FBI the prime role is a change that ignores one crucial, immutable reality: The FBI cannot do what the CIA does. This is not an issue of the education, skills or ability of FBI agents. It is based on a fact that almost everybody knows, and people who work in law enforcement know better than anybody: FBI special agents are cops, and many people, not to put too fine a point on it, don’t like talking to cops. And so they lie to them…a lot.

When I was in the CIA and serving as a liaison to a national lab, the scientists there had a curious story to tell me. That national lab conducted tests on heavy equipment. The lab staffers joked that when they went to trade shows and conferences, the heavy-industry folk in attendance frequently gossiped about safety issues with their equipment, including problems arising from cyber-attacks, but that whenever the FBI representative to the meetings showed up, everybody clammed up about the attacks.

While the FBI agents who attended those conferences may have been there in an "intelligence collection" role, nobody forgot that, first and foremost, FBI agents are law enforcement. The people running those industrial facilities simply weren’t going to share information about cyber-attacks on their systems if sharing such information exposed them to fines or prosecution for negligence. As a consequence of that reticence, nobody in the federal government was being notified of the attacks (a situation fortunately since rectified).

I still shudder to remember one successful cyber-attack that went unreported to the FBI: A hacker took control of the systems running an industrial plant located in the eastern United States. The plant dealt with hazardous materials and the hacker maintained control for a full half-hour. Thankfully, that particular hacker took no malicious action. Still, if the chemical leak from the Union Carbide chemical plant in Bhopal, India, whose final toll was estimated to be near 18,000 deaths, taught any lessons, one was surely that running a chemical plant is tricky enough without your control systems being usurped by hackers. Despite the potential danger, the industry attendees at the conference where that tidbit surfaced might all have been Sergeant Schultz ("I see nothing, absolutely nothing") as far as the FBI agents in attendance were concerned.

The chief virtue of the CIA in the domestic intelligence arena, one the FBI can never duplicate, is that the CIA has no law enforcement powers, and the CIA’s domestic contacts know that. When I took the owner of a U.S. tech firm to lunch to gather information, he or she could be sure that the only potential downside to the meeting was indigestion from a lavish meal. Any FBI agent equipped with handcuffs, a gun, and most importantly, the duty to bring that business owner up on charges should the agent believe he heard something that violated the law, is always going to have a harder time garnering sensitive confidences than someone with no law enforcement affiliation.

Having the FBI looking over the CIA’s shoulder while the CIA conducts domestic intelligence activities has another huge potential downside: One of the most fertile recruiting grounds for the CIA’s foreign intelligence program is right here in the United States. How better to get somebody inside Syria’s chemical weapons program (to pick a random example) than by approaching a Syrian chemical engineering student attending university in the United States and enticing him to join Syria’s defense industries when he finishes school and returns to Syria? If the FBI’s "coordinating" starts to impede the CIA’s domestic recruiting efforts, as it already attempted to impede the CIA’s contacts with the business community, the FBI will have sabotaged one of the CIA’s most productive sources of human intelligence: foreign nationals visiting the United States, safely away from the prying eyes of their own governments, in the only place where the CIA has the home court recruiting advantage.

Washingtonians not intimately concerned with the intelligence world may consider the shift in "coordinating authority" in favor of the FBI a minor blip in the ongoing struggle between the CIA and the FBI. In reality, though the adverse effects may accumulate so slowly few will notice, it’s a sea change pushing the CIA toward a perfect storm. If the situation is not returned to the status quo ante to allow the CIA to act with full independence, the flow of information from domestic sources on which U.S. national security so heavily depends will slowly but inevitably start to dry up. That may leave the FBI as the winner in the bureaucratic battles that so infest Washington, but it will eventually leave every other American a loser.