Protecting Informants
Near the end of May 2018, the president falsely accused the FBI of having put a “spy” in his campaign and called for an investigation. The president’s allies began demanding that the so-called spy’s identity be unmasked. The FBI had, of course, not put anyone inside the campaign. A confidential informant with preexisting tangential ties to people associated with Trump’s political operation had provided information relating to specific national-security risks, in this case involving possible Russian influence in the conduct of a presidential campaign. Reading the news of President Trump’s demand to know details about the confidential informant, I wanted the leadership at Justice and the FBI to say, We will not provide any information. We are going to protect the people who work with us, period. In the end, the deputy attorney general, Rod Rosenstein, sought to defuse the situation by referring the matter to the inspector general and giving confidential briefings to key members of Congress. To prepare for such an important briefing, it would be customary both to review the raw intelligence of 302s from interviews with the confidential informant and to work with an analyst who processed that raw intelligence into a more finished briefing product. When the information was properly prepared and presented, after various people had taken the time to understand it, even some FBI critics on Capitol Hill realized—and publicly stated—that there was no issue here.
Not giving up your people: This is important. It is crucially important not only to the FBI but to the country’s safety and security. The ability to identify and develop relationships with human sources is oxygen to the FBI. The Bureau cannot live without that. It is the first step toward the activation of any of our other, more sophisticated investigative authorities. You do not get to search warrants, you don’t get to subpoenas, you don’t get to listen in on a subject’s communications through a FISA or Title III court order, without people telling you what they know. And if you can’t credibly tell them that you will protect and conceal their identity if they are willing to go out on a limb, if they are willing to risk their own and their families’ lives and welfare—if they can’t trust that you will protect them—then they will not cooperate with you.
Discretion allows the FBI to generate human sources. Human sources build the credibility of this institution. No other U.S. agency has a pool of human sources bigger than that of the FBI. That is the true strength of this organization: the ability of its agents to go out into any part of this country, sit down with people, and get information from them in a lawful, constitutionally protected way. A person who is willing to have an ongoing relationship of this kind with an agent is called an informant, or a source. Without those people, we’re sunk—as a law-enforcement agency and as a law-abiding society.
So—hypothetically—if the FBI finds out that someone who is definitely associated with a domestic political campaign has made a comment to a high-ranking government official from another country about possibly colluding with a foreign adversary in the course of that campaign, the FBI is obligated to look into that. The foreign counterintelligence implications of this information are obvious. The Bureau would be guilty of dereliction of duty if it did not open an investigation and look into the matter.
And the Bureau’s goal would be not only to find out who is responsible for working with the enemy, but also to protect the campaign from the foreign influence that might be seeping into what they are trying to do. No campaign in the U.S. would want that. And it could be illegal—the Federal Election Campaign Act strictly regulates the participation by foreign nationals in U.S. elections and specifically prohibits the provision of money or anything of value. The FBI would open an investigation to protect the people who are involved in that political activity from malicious foreign influence. We assume the campaign is operating under good faith. We assume innocence until proof of guilt. That is why, in this hypothetical situation, a case would be opened.
What would happen once that case was opened? Would agents go busting out and interviewing people willy-nilly? Would they publicly line up everybody in that campaign and ask, Did you talk to anyone from this foreign country? No, they wouldn’t want to do that. If they did, they would communicate to all the world the FBI’s investigative interest in this subject matter—which would have an indelibly deleterious effect on both the investigation and the campaign. The question of when to move from one stage of an investigation to another—when to move from collecting evidence to briefing any of the subjects involved—is a delicate one, involving consideration of many factors. Absent imminent threats to life and limb or the destruction of evidence, once a case is opened, agents conduct the investigation quietly and covertly.
What would agents do first? It could be a good idea to start out by talking with people who have a history with other people in the campaign. So agents might go to those people and say, What do you know about this person? And have you heard anything about that? And if, in talking to those people, agents came across someone who had exposure to and knowledge about this person or that issue, or was in a position to find out, agents might say to the person, See if they know anything about this or that, and let us know what they say.
That is the answer to a president who is worried about a nonexistent spy in his campaign and who demands that an informant be identified.
3
The Shift
SOLVING CRIME—AND PREVENTING TERRORIST ATTACKS
Ground Zero
It was a bad Monday. I’d just come back to New York from a trip to Fort Lauderdale with one of the detectives on my task force. We ran an operation there that triggered turf issues for the field office, and the local FBI supervisor screamed at me like I’d never been screamed at before: You are banned from the state of Florida! So on this Monday, I expected my boss to chew up what was left of me. I stayed at the office late, coming up on midnight, to offer my hide. The boss just made me wait, and then he left.
So I got home late—I was living in Westchester County—and I canceled plans to meet my workout buddy at the gym by the World Trade Center, where we usually met on Tuesdays. I slept in. When I was getting out of the shower, I heard Katie Couric on the TV in the bedroom say a report had just come in: A small plane had flown into the side of one of the towers at the World Trade Center. The phone rang. It was Jill, saying, Did you see what happened to the World Trade Center? You’d better get into work. I was confused. I said, I’m not a fireman. What do you want me to do about a fire at the World Trade Center? Then the newscast cut in with an update.
I floored it in the black Chevy Tahoe, tinted windows up, speeding into Manhattan. Bureau radio on, I listened to the chatter, tracking calls to rally—first at an intersection right next to the towers, then in Chinatown. The bridges were closed. When I got near the Triborough Bridge, the on-ramp was a parking lot. I drove on the shoulder, lights and sirens on, trying to maneuver around the cars, and there were orange construction barrels in the way. When the other drivers saw the lights and sirens, a bunch of them jumped out of their cars and started lifting the barrels out of the way so I could get through. When I made it up onto the bridge and drove across, my car was the only car on the bridge. It was like that scene in Vanilla Sky. Southbound on the FDR, again I was practically the only car on the road. By then the first tower had fallen. I took the right-hand exit at the Brooklyn Bridge, and I saw a crowd of people walking the other way on the FDR, away from downtown. They were all white, covered in dust. Not excited, not talking. Calm, dazed, a crowd of ghosts walking along.
I made it to 26 Federal Plaza, dropped the car, and immediately the SWAT team rallied, right there: Get your gear on, get in the vehicles, get together. We’re going to stage the vehicles, we’re going to be ready, because no doubt we’re going to get called. The SWAT team would be the ones who would arrest the people who were involved in this. Any second now—I was sure of it—we would get the order to go out to some location in Brooklyn or the Bronx or wherever, and get this guy or that guy. They moved our team ov
er to the West Side Highway, by the heliport. The weather was absolutely gorgeous, blue sky, not a cloud, and we stood there and we waited.
And we waited, and we waited. Nothing happened. And eventually we started to realize that probably nothing was going to happen that day. There was no one to go get, because no one knew yet who had done this.
By that night, it was decided that the field office could not work from the old Federal Building. The air quality was too bad. The building had sucked in all the fumes and dust from Ground Zero. So the field office moved uptown, to the FBI garage, a huge brick building on the corner of the West Side Highway and Twenty-sixth Street. Oil-stained cement floor, debris everywhere, cars everywhere. This was the graveyard for old Bureau cars—name your style of anonymous dark sedan, they were all there, along with cars that had been seized. Ferraris and Bentleys, rusting and rotting away, going nowhere.
All that stuff got hauled out, and we put in tables, phone lines, computers. This was the command center. This was where the terrorism case squads worked their investigations. All the intelligence on the attacks was pouring in here. All decisions about deployments and investigations were made here. The SWAT team provided a perimeter of security around the building, twenty-four hours a day. Every street agent who wasn’t on a terrorism squad or with the SWAT team was shagging leads for the case. The lead pool ran out of the USS Intrepid, the old aircraft carrier docked a few blocks up the river, and it ran around the clock. This was the rhythm: show up at the Intrepid at 7 A.M., grab a stack of leads, go work them, come back at 7 P.M., give your paperwork back, go home and sleep, repeat.
On and on it went, one week working days, the next week working nights. It rained, the air was freezing, and we stood there. Somebody had to stand guard, so we did it. But we wanted to do more. We wanted to find the people responsible for this—even though, very quickly after the attack, we in fact knew who they were: terrorists affiliated with al-Qaeda and directed by Osama bin Laden. We also knew that the nineteen hijackers, the ones most responsible, had all died in the attack when the airplanes they had hijacked crashed into the Twin Towers, the Pentagon, and a field in Pennsylvania.
Most of us on the SWAT team were criminal guys. Agents who do criminal work have traditionally seen themselves as the only true agents, the ones who do the real work. Everybody else could mess around sending cables back and forth, swapping “intelligence.” Criminal agents did the big stuff. We arrested people. Of course, the agents who worked on terrorism thought they were the real thing. Each side had its own myths to deploy against the other. Being of the criminal camp, I was champing at the bit to get moving. Instead, I found myself saying, Can I see your ID, ma’am? to every twenty-five-year-old on the way into work at Martha Stewart’s headquarters, upstairs in our building.
‘I Am Sikh’
September 11 was the day that made everything look different from how it had looked before. This is true even in a literal way. After standing watch the night of 9/11, three of us drove downtown. By that point, everything south of Twenty-sixth Street was like a world under martial law. No private vehicles. Restaurants serving food only to first responders. I remember coming down Broadway with city hall on the left, the park in front tapering to a point. It looked like a winter morning after an eight-inch snowfall. Every surface was white. It looked peaceful. And it was quiet—the dust, like snow, muffled every sound. There were no people walking around, and there was no traffic.
We dropped the car at 26 Federal Plaza and then walked over to see Ground Zero up close. I remember reminding myself, That’s not snow. That’s just the buildings, and everything and everyone that was in them, a physical manifestation of violence and hatred. But also of all the people and lives and families and businesses and enterprises and hopes and plans and everything that intersected at those two tall towers, turned into dust.
The dust and debris would be hauled to Fresh Kills Landfill on Staten Island, and agents and police officers would go out there every day to sort through it. They would put on their Tyvek suits and take garden rakes in their hands and rake the dust and debris, looking for human remains, day after day. Living persisted, in all the forms living takes. My friend Michael Breslin worked at the morgue, documenting the bodies and body parts being brought in.
At another level, the wheels of national government were grinding forward. First, federal immigration services stopped all regular processes of deportation—no illegal aliens would be sent out of the country until the FBI cleared them of any connection to the 9/11 attacks. Second, at the same time, immigration enforcement became much more aggressive, particularly as it concerned Middle Easterners, than it had been on September 10. Attorney General John Ashcroft was blunt: “If you overstay your visa—even by one day—we will arrest you.” And third, hundreds of agents, not only in the New York area but all over the country, were processing leads generated out of the 9/11 case files, which were known as PENTTBOM and TRADEBOM.
To show what happened when those three lines intersected, consider one scenario that might have unfolded if you’d become the subject of a lead after 9/11. Let’s say you were from the Middle East, and your neighbor had called the FBI and said, The person who lives next door comes and goes at odd hours, and he hangs out with other guys with Middle Eastern names, and I think I saw him wearing a turban once. The FBI got thousands of such calls. Every call became a lead. We would get the address, and two agents would go out that same day. Once the agents arrived at your doorstep, even if you weren’t there, if any of your neighbors passed by, the agents would have struck up conversations with them. If one of those neighbors, too, happened to have come from a Middle Eastern country, the agents would have asked if he was a citizen or to see his green card. If that man wasn’t a citizen and didn’t have a green card, he would no longer have been your neighbor. He would have been detained.
All of a sudden, the U.S. was enforcing immigration laws in a way that it had not done for decades. Many, many people were picked up and thrown into deportation proceedings, which would not occur until they were cleared of any connections to terrorism. A massive logjam formed.
In addition to all the people who were getting picked up in the New York area, others were picked up around the country, and some of them caught the interest of the terrorism squads, so they asked for those detainees to be sent to New York. The Immigration and Naturalization Service, as it was then known, quickly blew through all of its detention space. The INS started signing contracts to house detainees in county jails in New Jersey. The Passaic County Jail, the Orange County Jail—facilities with some hard-core inmates—started to fill up with immigration detainees who had not even been accused of a crime. These detainees were virtually all Middle Eastern. They were virtually all dark skinned. They were not treated with courtesy.
As the numbers grew, it finally dawned on someone that we had to start vetting these detainees so that we could figure out whether to let them go or start deporting them. So the special agent in charge asked Ray Kerr to come up with a plan. Ray grabbed a few of us and explained the job. We were eager to do anything. None of us knew anything about terrorism. We didn’t know what a vetting investigation for someone with connections to terrorism should even include. The process we set up was not efficient. Some of those first groups of detainees were in custody for a long time—six months or more—before we were finally able to build the system and then get them through it.
The program generated a lot of lawsuits and prompted my first interaction with the inspector general’s office at the Department of Justice. Sometime after we had concluded the detainee clearances, the inspectors came to New York to investigate how we had handled our assignment. Ray Kerr and I sat for that interview together. They asked a lot of questions about why we had detained so many people, how we created the clearance process, and why it had taken so long. The only candid response was to point to the context: This was New York in the traumatic aftershock of 9/11. The attorney general had asked the FBI to rende
r an opinion on every immigration detainee’s possible connections to terrorism. We created a process to do that. We had never done it before. It was far from perfect.
Our group ended up processing about 550 detainees. The best thing about this job was that it got done. The detentions were incredibly hard on people. Most of the detainees had blue-collar jobs, and most of them were guilty of nothing other than violating immigration laws that typically had not been enforced. One day another agent came back from the Passaic County Jail. A man he had been interviewing had broken down in tears. Said that after 9/11 people called him horrible names and gossiped about bad things he was supposed to have done, things that he did not do. Called him a terrorist. Then he looked at the agent and said, I am Sikh. I’m not even Muslim.
Not Mr. Casual
I am continually struck by the strangeness of living in a world where many people cannot connect with 9/11 in a visceral way. It is still so much with me. Five years after the attacks, I started working on counterterrorism full-time. Having spent most of the period since 9/11 looking closely at terrorist groups and religious extremism, these things weigh differently in my perspective than in most people’s. Some people see counterterrorism as essentially a political issue, even a fearmongering technique. It is sometimes both of those things. It is also very real. People who work in counterterrorism are correct in making this point: The fact that 9/11 happened once does mean that something like it could happen again. And the fact that we should have seen it coming the first time—we could have seen it, and we didn’t—instills everyone involved in counterterrorism with a vigilance that manifests as dread and fear. Not a fear of bad things happening, but fear of missing something. A relentless second-guessing. People who take this threat seriously are more on edge than people who don’t.
The Threat Page 7
