The Secrets of the FBI

by Ronald Kessler

  “He comes off as your central-casting ex-Marine—tough, no-nonsense, and not suffering fools gladly,” says Michael R. Bromwich, a former Justice Department inspector general.

  “In the earlier years, when you didn’t have the facts, he would point out that you didn’t have the facts by basically just a machine-gun staccato of questions: ‘What about this? What about that?’ ” says Art Cummings, who wound up heading both counterterrorism and counterintelligence. “Never a pause for the answer. The point was you don’t have this, you don’t have this, and you don’t have that. And the underlying message was, ‘Don’t come back here without the right answers next time.’ ”

  Over time, Mueller’s cross-examinations became less painful, Cummings says. “But he’s still very pointed, very directed.” When officials did not meet Mueller’s standards or ignored his directives, he quietly forced them out.

  Under Mueller, the bureau’s mission once again was defined by war.

  19

  INTELLIGENCE MIND-SET

  FOR SOMEONE DIRECTLY RESPONSIBLE UNDER THE FBI DIRECTOR for protecting the country from terrorists and spies, Art Cummings had strange living arrangements.

  An agent since 1987, Cummings had worked nearly every kind of FBI case—counterintelligence, violent crime, drugs, child molestation—before focusing on terrorism. The risks involved with being an FBI agent never bothered Cummings. In a way, he was used to taking risks. After graduating from Bowie High School in Maryland, Cummings joined the Navy SEALs, then attended the University of California. All through college and the Navy, Cummings had two motorcycles, a BMW 650 and a Honda 900. When he married his wife, Ellen, in 1982, she made him promise not to ride motorcycles, and he sold them. In the Navy and in the FBI, Cummings had made 160 parachute jumps from airplanes. When he decided to go skydiving for fun, she said, “I’m just going to require one thing: why don’t you sit down and write a goodbye letter to each of your kids, just in case?” That was the end of his skydiving.

  As an FBI agent, Cummings rose to become deputy assistant director of the Counterterrorism Division, in charge of international terrorism investigations. He spent a year as deputy director of the National Counterterrorism Center (NCTC). There, two hundred analysts from the CIA, FBI, NSA, and other intelligence agencies sit next to one another, sharing intelligence and tracking threats twenty-four hours a day. Cummings also did a stint at Guantánamo Bay, where he personally interrogated prisoners.

  In January 2008, Mueller named Cummings to head both counterterrorism and counterintelligence as the FBI’s executive assistant director in charge of the National Security Branch. Cummings maintained his home in the Richmond, Virginia, area, where Ellen and their three teenagers lived. On weekends, he drove nearly two hours to Richmond and back.

  During the week, Cummings lived on his twenty-three-foot sailboat, moored near Annapolis, Maryland, about forty-five minutes from Washington. He set his alarm to go off at three-ten in the morning. By four-fifteen, he was working out in the FBI’s gym. By six, he was showered and in his office.

  Every day, he placed his .45-caliber Glock in a safe. Then he sat down and reviewed briefing books on the latest terrorist threats and developments in espionage cases. The blinds in Cummings’ office on the seventh floor of FBI headquarters are closed as an additional precaution to prevent conversations from being picked up by devices trained on the windows. Even though visitors to the FBI building undergo a background check, no one can enter the executive corridor where Cummings, Mueller, and other top officials have their offices without punching a personal PIN into a security device.

  At seven, Cummings met with his staff. At seven-thirty, he saw Mueller in the director’s office. Then at eight-thirty, he saw the attorney general. He met with Mueller again at nine. On occasion, Cummings would meet with President Obama, as he had met before with President Bush.

  Evenings, Cummings left the office by seven forty-five or eight. He drove back to Annapolis and stopped at a deli near the Chesapeake Bay Bridge, where the counterman knew his standing order: a half pound of tuna salad, a bag of SunChips, and a cold Dos Equis or Sol Brava beer. On his way to his boat, he stopped off at the marina club house, where he brushed his teeth. Then he drove a quarter mile to the dock. On many weekends, breaking cases meant Cummings never got back home to Richmond.

  That kind of frantic lifestyle began for Cummings on the day of the attacks on the World Trade Center and Pentagon. At the time, Cummings was running a counterterrorism squad in the FBI’s Richmond field office. That afternoon, Dale L. Watson, who was in charge of the FBI’s national counterterrorism effort, called Cummings frantically. He considered Cummings a sharp operator who was not afraid to tell his bosses exactly what he thought. Watson needed him in Washington. He gave him until midnight to get there. Cummings arrived at 11:30 p.m. Working fourteen-hour days, Cummings wound up living in a Marriott hotel at Ninth and F Streets, NW, for three months.

  All the intelligence pouring in pointed to a second wave of attacks, perhaps within months of 9/11. The Library Tower in Los Angeles was to be one target. The pressure to stop those attacks was enormous.

  “Listen, guys, we get another hit, and we’re all gone,” Pasquale “Pat” D’Amuro, who was in charge of the 9/11 investigation, told Cummings and others at a meeting.

  In the days after 9/11, Cummings was only on temporary assignment at headquarters. But after seeing Cummings give a PowerPoint presentation, D’Amuro decided to bring him to headquarters permanently. D’Amuro made Cummings chief of the Document Exploitation Unit, then the Communications Exploitation Section. After that, he placed him in charge of the first national Joint Terrorism Task Force, which brought together dozens of intelligence and law enforcement agencies to go after terrorism. Eventually, the FBI had 106 local Joint Terrorism Task Forces, compared with 35 before 9/11. By March 2003, Mueller had placed Cummings in charge of International Terrorism Operations Section 1 (ITOS 1), which directs operations having to do with al Qaeda.

  “The real anxiety [after 9/11] was, ‘Okay, if they’re here, how do we make sure they don’t do another one?’ ” Cummings says. “We don’t have the luxury of time. If they’re here, they’re already planning. They may have been disrupted with this first wave, but if there’s going to be a second wave, we need to get out in front of it.”

  Now, as the FBI official in charge of counterintelligence and counterterrorism, Cummings coordinated the bureau’s operations with the rest of the intelligence community. Having never granted an interview previously to the press while in charge of counterterrorism or counterintelligence, Cummings revealed his experiences and thoughts for the first time in a series of interviews for this book.

  Before 9/11, Cummings had to fight what he considered the insane policy of separating intelligence from criminal investigations as part of the so-called wall erected by Attorney General Janet Reno. A 1995 interpretation of law by Richard Scruggs, a Justice Department official hired by Reno, had essentially paralyzed the nation’s effort to hunt down terrorists before they killed people.

  As chief counsel of the Department of Justice’s Office of Intelligence Policy and Review, Scruggs decided that when applications were going to be made for electronic surveillance in foreign counterintelligence or counterterrorism cases, information gathered for purposes of obtaining intelligence could not be mixed with information that might be used for a criminal prosecution. The Foreign Intelligence Surveillance Act of 1978 (FISA) had established a court to hear requests for electronic intercepts in such cases. Until Scruggs came along, there had been no problem. John Martin, who headed the Justice Department’s espionage section, prosecuted more than seventy-six spies by properly distinguishing between information developed for purposes of intelligence gathering and that gathered for purposes of a criminal investigation.

  When advising agents, Martin made the point that while watching KGB officers who have diplomatic immunity as part of a routine counterintelligence investigation, they might
very well develop information that implicates a government employee passing secrets to the Russians. FISA specifically recognized that this routinely happens and that therefore a counterintelligence investigation and an espionage investigation were often indivisible. Under court rulings, so long as the “primary purpose” of the initial investigation was to gather intelligence, the evidence collected could be used to support a prosecution without any problem. No prosecution had ever been overturned on appeal.

  But Scruggs said that to demonstrate that the primary purpose of an investigation was originally counterintelligence and not a prosecution, those who worked on the case initially should have absolutely no contact with prosecutors.

  Asked why he made an issue of contact between the FBI and Justice Department prosecutors in view of the record of success in espionage prosecutions, Scruggs told me a court had held that Justice acted “improperly” in the prosecution of Ronald Humphrey, an employee of the U.S. Information Agency, and David Truong, who turned over secret State Department documents from Humphrey to the North Vietnamese. But that case, brought in early 1978, was before the enactment of FISA. It was therefore irrelevant. Moreover, an appeals court upheld the convictions. Asked about that, Scruggs said he thought the case occurred after FISA was passed. In fact, when Scruggs issued the memo, no court had ruled that intelligence information had been used improperly in an espionage prosecution under FISA.

  After Reno and Deputy Attorney General Jamie Gorelick approved Scruggs’ memo requiring separation of intelligence and criminal matters when making a FISA application, Scruggs’ staff at the Justice Department enforced his dictum by warning that FBI agents could be fired or even prosecuted for a felony if they overstepped. Soon the FBI and CIA overreacted to the warning and began separating information from criminal and intelligence sources even if no application was being made for a FISA warrant. The result was a wall so inflexible that FBI agents on the same counterterrorism squad were prohibited from discussing the case they were working on with one another. Within the FBI, files on the same case were kept separate. What was known as the criminal side of the case was assigned a 65 classification number, while what was known as the intelligence side was assigned a 199 number.

  “In practice, the wall crippled our last best chance to catch the hijackers before September 11, 2001,” Stewart Baker, a former general counsel of the National Security Agency and assistant secretary of the Department of Homeland Security, wrote in his book Skating on Stilts: Why We Aren’t Stopping Tomorrow’s Terrorism. He was referring to how the wall imposed impediments to the FBI finding Khalid al-Mihdhar, one of the 9/11 hijackers, who was linked by address or data in reservation systems to eleven of the other hijackers.

  Scruggs had a “blockage in his thinking, which was accepted by Janet Reno and Jamie Gorelick,” Martin says. But few in the FBI had the courage to take on what amounted to a monumental government scandal. Cummings did. He remembers saying to Marion “Spike” Bowman, the FBI lawyer who headed the National Security Law Unit and was in charge of enforcing the wall, “Spike, this is stupid! I can’t live with this.”

  “Oh, you don’t have a choice,” Bowman replied.

  Cummings devised a way around the wall—a subterfuge, really. He told Bowman, “I’m going to open a 199 case. I’m going to work this as an intel case. But I’m going to have a criminal subfile.”

  “Well, you’re supposed to open a 65,” Bowman replied.

  Cummings said he wasn’t going to do that. He didn’t have the luxury of adding a second agent to a case so that one could pursue it as a criminal matter and another as an intelligence matter. Adding a subfile was a meaningless gesture to appease Bowman and get around Scruggs’ ruling.

  After 9/11, the USA Patriot Act broke through the wall, overturning the interpretation of the law that had begun with Scruggs’ memo. The Patriot Act also allowed the FBI to wiretap a terrorist suspect regardless of what phone he used. Previously, if a suspect changed from a landline to a cell phone to a pay phone, the FBI had to apply for a new FISA order each time he used a different phone, entailing weeks of delay. Incredibly, the FBI could employ what are known as roving wiretaps in organized crime or drug-trafficking cases but could not use them in terrorism cases, which focused on threats that could endanger the country’s survival. But, as the FBI official in charge of counterterrorism, Cummings had a much larger issue to tackle: changing the FBI’s culture to make the bureau more prevention oriented.

  Two days after the 9/11 attack, Mueller and Attorney General Ashcroft began to brief Bush.

  “They talked about how the terrorists got plane tickets, got on planes, moved from one airport to another, and then attacked our citizens,” Andy Card, Bush’s chief of staff, says. “And the president, while he was very interested in that report, said, ‘Mr. Director, that’s building a case for prosecution. I want to know what you have to say about the terrorist threats that haven’t materialized yet and how we can prevent them.’ ”

  As Bush writes in his book Decision Points, Mueller affirmed, “That’s our new mission, preventing attacks.”

  Mueller took the message back to headquarters: instead of simply responding to attacks, interdict them. Of course, the FBI had always sought to prevent terrorist attacks before they occurred. Often the bureau was successful. In the six years before 9/11, the bureau stopped forty terrorist plots before they could be carried out. The FBI foiled an attempt by al Qaeda to blow up the Holland and Lincoln tunnels between New Jersey and Manhattan, the United Nations, and the FBI’s New York field office.

  But under Freeh’s leadership, the FBI tended to treat each incident as a separate case instead of recognizing the larger threat and mounting an effort against the entire al Qaeda organization, as the bureau had done with the Ku Klux Klan and the Mafia.

  On top of that, before 9/11, because of relentless media criticism and a lack of clear authority under Justice Department guidelines, the FBI had become so gun-shy and politically correct that even though terrorists were known to hatch their plots in mosques, the FBI was averse to following suspects there. Because he was a cleric, FBI and Justice Department lawyers debated for months whether to open an investigation of Sheik Omar Abdel-Rahman, who was later convicted in the first World Trade Center bombing.

  Under the guidelines in place before 9/11, FBI agents could not even look at online chat rooms to develop leads on people who might be recruiting terrorists or distributing information on making explosives. The FBI first had to determine that there was a sound investigative basis before it could sign on to chat rooms any twelve-year-old could enter.

  In other words, “a crime practically had to be committed before you could investigate,” Weldon Kennedy, the former FBI deputy director, says. “If you didn’t have that, you couldn’t open an investigation.”

  “We were told before 9/11 that we were not allowed to conduct investigative activity on the Internet, even though it’s public,” Cummings says. “Same thing with a mosque. It’s a gathering open to the public, but we were absolutely precluded from going into a mosque as an FBI agent. And precluded from having a source in a mosque report on anything in the mosque, or look at anything in the mosque, unless we had a specific target within the mosque.”

  Focusing on Arab men, as had been suggested by a memo from a Phoenix agent worried about Arabs taking flight training, was a no-no.

  “Remember, under the administration of the day before 9/11, the Justice Department was investigating the Pittsburgh police department for profiling,” Cummings says. “Profiling was a really, really bad thing back then. Imagine in those pre-9/11 days going to flight schools and saying, ‘We want you to give us a list of all your Middle Eastern students.’ They would’ve said, ‘Excuse me? Is there a problem with Middle Eastern students we aren’t aware of? Why don’t you go to the ACLU and American-Arab Anti-Discrimination Committee and talk to them about it?’ We’d have had more knocks on our door. In the case of Arab men taking flight training, we would not
have been able to justify an investigation.”

  That changed once Mueller came back from his meeting with Bush after 9/11. Cummings told agents, “The director said, ‘We’ve got this new mission. It’s a prevention mission.’ ”

  The FBI’s primary goal had always been to lock people up. But Cummings told agents that strategy could actually put the country at risk. Instead of bringing a prosecution, the primary goal should be gathering intelligence to penetrate terrorist organizations and prevent future plots. Cummings considered “intelligence” to be a fancy word for information. The FBI had been using intelligence since it pursued tips to close in on John Dillinger at the Biograph Theater in Chicago. It used intelligence to wipe out the Ku Klux Klan and nearly wipe out the Mafia. But using the word “intelligence” conveys a mind-set that emphasizes the importance of holding off on an arrest.

  When an agent would say he wanted to take down a suspect on some alien violations, Cummings would tell the agent: “So you’re telling me you’ve done your job, you know everything there is to know about him, his organization, everything around him, all his travel, all his friends, and all family members? He’s not a viable source, and he’s not producing any productive intelligence whatsoever?”

  Often there would be silence.

  Cummings would say to the agent, “This is a deliberate judgment you have to make. Your objective is not to make the arrest. Your objective is to make that suspect our collection platform. That guy now is going to tell us just how big and broad the threat might be. He now becomes a means to collection, instead of the target of collection. I want you to understand his entire universe.” Then Cummings would tell the agent, “If he’s not a viable source, and his intelligence isn’t productive, then knock yourself out and use your law enforcement powers to make that arrest.”