The Secrets of the FBI

by Ronald Kessler

  27

  CHRISTMAS DAY

  AFTER LEARNING OF UMAR FAROUK ABDULMUTALLAB’S attempt to blow up a Northwest Airlines plane, Cummings arrived at his office at FBI headquarters in the afternoon. On the hallway door leading to his office, Cummings had hung a three-by-five-foot photo of the American flag being raised at the World Trade Center site. Even though he never used it, a blue FBI raid jacket hung on a rack near his desk.

  Abdulmutallab had tried to blow up the flight with a bomb whose components included pentaerythritol, also known as PETN, and triacetone triperoxide, also known as TATP, both high explosives. The bomb was sewn into his underpants near his crotch and was designed to allow him to detonate it at a time of his choosing.

  If successful, Abdulmutallab, a Nigerian citizen, would have killed all 253 passengers and 11 crew members on board. However, because he somehow fumbled triggering the device, the bomb failed to explode. When passengers saw the flames and smoke, they subdued and restrained him.

  After talking with Mike Leiter, a former federal prosecutor who heads the National Counterterrorism Center, on a secure phone, Cummings, who was once a special agent bomb tech, put together a secure video conference. On the call along with Leiter were John Brennan, the counterterrorism chief at the White House, and Jane Lute, deputy secretary of the Department of Homeland Security, among others.

  Based at the NCTC, the secure video teleconferences—known as SVTCs, pronounced “sivitz”—take place in a room straight out of Dr. Strangelove. On an oak oval table, which seats at least twenty, are mice belonging to eight invisible computers. A command on a touch screen orders the computers to rise like Atlantis from somewhere at the center of the table. On a wall at the head of the table, the requisite clocks show the time in New Delhi, Stockholm, Shanghai, Sarajevo, Jerusalem, Paris, Teheran, and New York.

  At the other end of the table are plasma screens. During daily SVTCs, they show certain high-level, security-cleared members of the intelligence community at the FBI, CIA, NSA, Pentagon, and Department of Homeland Security, as well as the White House.

  The secure video conference on the attempt to blow up the plane began just after agents gave Abdulmutallab a Miranda warning. The conference lasted two hours and covered “what we knew, who was doing what, who we needed to interface with, who needed to be briefed,” Cummings says. The subject of a Miranda warning never came up during the conference, he says.

  Brennan later said that he fully briefed Republican congressional leaders—Senators Kit Bond and Mitch McConnell and Representatives John Boehner and Peter Hoekstra—on Christmas night about the arrest and subsequent handling of Abdulmutallab.

  “None of those individuals raised any concerns with me at that point,” Brennan said on NBC’s Meet the Press. “They didn’t say, ‘Is he going into military custody? Is he going to be Mirandized?’ They were very appreciative of the information. We told them we’d keep them informed. And that’s what we did.”

  But according to all four leaders, Brennan merely said that Abdulmutallab had been arrested, with nothing about how the case would be handled. Some of the Republican leaders pushed for such cases to be presented to a military tribunal, obviating the need to read a foreign suspect rights guaranteed to American citizens.

  Cummings says that what was unusual about the case was that, in contrast to most FBI cases, Abdulmutallab had already been taken into custody by U.S. Customs and Border Protection officers. The FBI therefore did not have the luxury of questioning him before he was in custody. However, based on the Supreme Court’s 1984 New York v. Quarles decision that permits such warnings to be put off if the public safety might be threatened, a Miranda warning was delayed.

  “Usually, what you would do is just not arrest a suspect,” Cummings says. “We’ll have a chat, explain the facts of life to him, where his life is headed. It happens regularly, and therefore we don’t have to sit down and say, ‘You have a right to this, you have a right to that.’ ”

  In the case of the twenty-three-year-old suspect, he talked freely at first. “In the first hour, he gave us really good information on the front end,” Cummings says. “ ‘Yep, I did this on behalf of al Qaeda. Yep, it was in Yemen.’ ” He gave up names, places, training camps. Then he was transported to the University of Michigan Medical Center for a medical procedure. After that, he started to clam up.

  “He was under the influence of painkillers, and they’d scrubbed the skin to remove the burnt skin,” Cummings says. As the narcotics wore off, two new agents went in to see him. They were instructed to deal with conditions on the ground as they saw them.

  The agents saw the Nigerian the day after his arrest. He was praying. They began by asking elementary questions he had already answered. “He either lied or didn’t give them the answer,” Cummings says. “And at that point, they were like, ‘He’s done.’ So then they gave him Miranda.”

  Over the next five weeks, the FBI worked on him. The focus was on finding out what he cared about. “Is it his mother, is it his family, is it his future?” Cummings says. “Is it shame upon his family? We offer them the possibility that instead of dying in an American prison, maybe sometime in their lifetime they will actually be able to go home and see their family, and they won’t be executed and die at the hands of this nation they hate so much.”

  As with failed Times Square car bomber Faisal Shahzad, Abdulmutallab was a self-initiated terrorist enabled by al Qaeda.

  “So it really gets to the point of what the heck is going on?” Cummings says. “What really is happening to influence a young man [Shahzad] who in this case was essentially raised in the United States to take this path? It’s not terribly far from youths who join violent gangs. Instead, these guys are moving toward combat in al Qaeda.”

  Cummings sent two agents to Nigeria to learn everything they could about Abdulmutallab’s background and family. “They engaged his family and explained, ‘This is really, really serious, and it’s in the best interest of your son that we cut a deal of some sort,’ ” Cummings says.

  One agent moved in with Abdulmutallab’s uncle, then flew him to Detroit. Later, his father flew to Detroit as well. Both told Abdulmutallab it was in his interest to listen to the agent. Meanwhile, agents told the suspect, “You have a long life to live, there are a number of conditions you can live it in,” Cummings says. “It’s all up to you.”

  Five weeks after he had stopped talking, Abdulmutallab was cooperating again.

  Cummings says that while the public safety exception allows a relatively brief delay in giving a Miranda warning, it may be helpful to enact legislation that would allow an even longer delay than currently permitted. But he says that in many cases, the FBI does not have to worry about giving the warning because the individual is not in custody. If the suspect is in custody, Cummings says the FBI can obtain the information it needs in most cases after a Miranda warning so long as agents have unfettered access and can offer incentives for cooperation.

  “Frankly, I can’t remember a case where a guy didn’t talk to us in a terrorism case,” Cummings says. “You let them know what it’s all about, and then you tell them what their rights are, and you say, ‘But just sign here, and we can just continue our discussion.’ Most cases they’re willing to sign the waiver and continue talking. The question usually is not whether or not we can get them to talk. The question is how long it takes.”

  If the FBI arrests a suspect in the United States, Cummings sees no need for a military tribunal. He points out that Jose Padilla, a Brooklyn-born man who converted to Islam, was initially held as an enemy combatant in military custody.

  “No Miranda, no rights, no lawyer,” Cummings says. “They got nothing from him.”

  Padilla was eventually transferred to the civilian court system. He was convicted of conspiring to help Islamic jihadist fighters abroad. Some other high-ranking FBI officials privately favor tribunals.

  Even though it is within the purview of the FBI, Janet Napolitano, secretary of
homeland security, maintained that her department should have a vote on whether or not to Mirandize a suspect, Cummings says. “It’s the insanity of Washington when representatives of Homeland Security believe they might have a say in whether or not the FBI Mirandizes or doesn’t Mirandize somebody,” Cummings says. “They should not be getting involved in tactical CT [counterterrorism] operational decisions.”

  Under Bush, the Department of Homeland Security (DHS) did not try to become involved in such issues. However, under Michael Chertoff, Bush’s secretary of homeland security, it did push to join local Joint Terrorism Task Forces, a move the FBI resisted.

  “Their mission is infrastructure protection, and no one else does it,” Cummings says of DHS. “Shore up the dam, shore up the power plant, shore up the chemical plants, deny the target to the enemy. No one else is doing it, and frankly, I’m not convinced they are focused on it.”

  The NCTC determines whether an individual should be added to the Terrorist Identities Datamart Environment, or TIDE, which lists about 550,000 individuals, addresses, and objects such as cars and weapons. From that list, the FBI develops the Terrorist Screening Database (TSDB), from which consular, border, and airline watch lists are drawn. The list has 430,000 names. The Transportation Security Administration maintains its own no-fly list of about 4,000 people who are prohibited from boarding any domestic or U.S.-bound aircraft. Another list has about 14,000 “selectees” who require additional scrutiny but are not banned from flying. Each list is used for different purposes and is based on differing criteria. The TIDE list is broadest and includes anyone who might be suspicious. The no-fly list includes only the most clear-cut threats. In placing individuals on these lists, intelligence officials receive constant pressure from the American Civil Liberties Union (ACLU) and other civil liberties advocates who complain that there is something inherently insidious about the number of names on the lists. Timothy Sparapani, the ACLU’s legislative counsel for privacy rights, has called the numbers “shocking.”

  Abdulmutallab’s father had warned U.S. officials in Nigeria that his son had fallen prey to radical Islam and had said he would never see his family again. Consequently, Abdulmutallab was on the TIDE list—but he was not on the more select lists that would have subjected him to additional screening.

  “The Abdulmutallab case was really a convergence of missed opportunities,” Cummings says.

  Getting the State Department to deny a visa based on an FBI request is almost impossible, Cummings says. Cummings and the FBI constantly tried to get both the Bush and Obama administrations to change the visa policy, to no avail.

  “In this country, if you’re a student and you come to the U.S., and the FBI has you under investigation for being a terrorist, we can’t get your visa pulled,” Cummings says. “And I say what, do they have a right to be here? When did that happen? When did the privilege become a right?”

  But Cummings applauds the Obama administration’s new guidelines for screening passengers on airplanes. Instead of using nationality alone to determine which U.S.-bound international air travelers should receive additional screening, the government now selects passengers based on how they match up with known intelligence on possible threats, including their physical descriptions or travel patterns. Previously, passengers were subjected to extra screening if they came from one of fourteen countries. With the new guidelines, extra screening is applied based on the latest intelligence.

  In his FBI role, Cummings met with White House officials on a regular basis. Several times he met with Bush and later Obama. The FBI agent saw little change between the two administrations and no increase in what may have been politically motivated direction. “Frankly, we would not have responded to such direction,” Cummings says.

  What most frustrated him was the additional bureaucracy that the Office of the Director of National Intelligence (ODNI) imposed. While the 9/11 Commission originally envisioned the office as having several hundred employees to coordinate the intelligence community, it has ballooned to an agency of 1,500 employees. A small segment of those employees work for the NCTC, which is vital, but the rest of the agency produces little that Cummings could see to enhance the intelligence effort.

  That point was symbolized when the director of national intelligence, James R. Clapper Jr., admitted in a December 2010 interview with ABC’s Diane Sawyer that he was unaware of the arrests of twelve terrorists in London. It had been all over the news for most of the day. Cummings regarded Clapper as by far the most qualified DNI to have held the post. But the embarrassing lapse spotlighted the folly of creating a bureaucracy on top of operational agencies that must be alert to terror threats.

  “The intelligence community operators are doing a good job,” Cummings says. “It’s the massive bureaucracy around them that slows things down and frustrates the effort. You have this big planning machine generating endless meetings. We would walk out of the meetings shaking our heads.”

  28

  SUITCASE NUKE

  BY 2010, ART CUMMINGS WAS STARTING TO SEE A TURNAROUND in the war on terror, largely because of increased cooperation by the Pakistanis and others and an increase in strikes by Predator drone aircraft.

  He traces the changes to August 2006, when British authorities disrupted an al Qaeda plot to explode nine American airliners in flight from London. Cummings was then deputy assistant director of the Counterterrorism Division. In that capacity, he issued orders for wiretaps and physical surveillance of terrorist suspects in the United States. The objective was to pick up clues from how these suspects reacted when they heard the news of the impending arrests in Great Britain.

  After that plot was rolled up, the Bush administration began to intensify pressure on the Pakistanis to cooperate. At the same time, Bush ordered a threefold increase in the number of drone aircraft. Because it takes several years for such aircraft to be produced, it was not until 2010 that Predators began knocking off top al Qaeda leaders on a regular basis.

  Before increased pressure was applied, Cummings had a chart on the wall tracing multiple scary plots.

  “Everybody was going, ‘Holy s—,’ ” he says. “There were ongoing plots all around the world, all emanating from different al Qaeda strongholds in the FATA or other parts of Pakistan. The Pakistanis knew back in 2006 that if they didn’t do something, we’re coming in, because it was getting that bad.”

  Now, he says, “They’re getting the crap kicked out of them. I believe that absent the Predator program, we’d be in a ground war in Pakistan. Because this country would in no way tolerate successful al Qaeda plots inspired and hatched in Pakistan. Our frustration level was so high that al Qaeda was training people, and there just didn’t seem to be anybody who really had the capacity to do anything about it.”

  Yet as the FBI and the United States changed their approach, so did al Qaeda.

  “Al Qaeda in the Arabian Peninsula has moved from an internal focus on Yemen and Saudi Arabia to a focus on both the Arabian Peninsula and the United States,” Cummings says.

  Al Qaeda in the Arabian Peninsula was behind the failed efforts to bring down planes with bombs on Christmas Day 2009 and in October 2010, when two package bombs were shipped from Yemen to the United States. Even though Saudi intelligence pinpointed exactly where the bombs could be located in the planes, explosives-sniffing dogs failed to detect them. The radical cleric Anwar al-Awlaki, who is a leader of al Qaeda in the Arabian Peninsula, also inspired Nidal Malik Hasan, the U.S. Army major who shot to death thirteen people at Fort Hood.

  While al Qaeda has suffered big losses, it is becoming more sophisticated and effective in its recruiting, using Facebook and YouTube to enlist new terrorists.

  “Their media machine is really effective,” Cummings says. “Hence, they are getting volunteers from around the world. Something is working. Their communications strategy to those young men mainly and some young women now who are off on the wrong path speaks to them loudly and effectively.”

  Despite
the diffusion, al Qaeda would love to release biological, chemical, or nuclear weapons on the United States. But when it comes to nuclear weapons, “while they aspire to use them, when it comes down to limited resources, limited capacity, and being always on the run, where are they going to put their money?” Cummings says. “They’re going to put their money in five thousand pounds of ammonium nitrate and not in a nuclear warhead.”

  While some say obtaining a nuclear weapon would not be that difficult, both acquiring such a weapon and keeping it secret carries with it “very high risk with a very high likelihood of failure,” Cummings says.

  A terrorist bent on detonating a nuclear weapon would have to negotiate successfully a series of steps, according to Dr. Vahid Majidi, the FBI’s assistant director in charge of the Weapons of Mass Destruction Directorate. The terrorist would have to find an expert with the right knowledge. He would have to find the right material. Such a terrorist would have to bring the device into the country, and he would have to evade detection programs.

  “While the net probability is incredibly low, a ten-kiloton device would be of enormous consequence,” Majidi says. “So even with those enormously low probabilities, we still have to have a very effective and integrated approach trying to fight the possibility.”

  Besides an investigative and an intelligence approach, that entails using a forensic approach, including use of detectors and other technology, Majidi says. “You have to bring the three approaches together, and each one of them will bring you a certain amount of information at a given time,” he says.

  While TV shows such as 24 feature suitcase nuclear devices, Majidi—who confesses he never misses an episode—says that is a fantasy.

  “One of the smallest weapons that we have had in our arsenal is the special atomic demolition munition, which weighs about a hundred fifty pounds and is designed to take bridges out,” Majidi says. “That is like carrying seventeen gallons of milk. So that’s the kind of weight we’re talking about. That’s one of the smallest weapons that we have that is full-up,” meaning it is self-contained.