What Went Wrong at the FBI

 After 9/11, the bureau lost its law-enforcement ethos as it tried to become more of an intelligence agency.

By Thomas J. Baker

Americans have grown increasingly skeptical since 2016 of the Federal Bureau of Investigation, an institution they once regarded as the world’s greatest law-enforcement agency. I spent 33 years in a variety of positions with the FBI, and I am troubled by this loss of faith. Many lapses have come to light, and each has been thoroughly covered. But why did they happen? The answer is a cultural change that occurred in the wake of the 9/11 attacks.

For reasons that seemed justified at the time, the bureau set out to become an “intelligence driven” organization. That had unintended consequences. The FBI’s culture had been rooted in law enforcement. A law-enforcement agency deals in facts, to which agents may have to swear in court. That is why “lack of candor” has always been a firing offense. An intelligence agency deals in estimates and best guesses. Guesses are not allowed in court. Intelligence agencies often bend a rule, or shade the truth, to please their political masters. In the FBI, as a result, there now is politicization, polarization, and little sense of the bright line that separates the legal from the extralegal.

Part of making the FBI more like an intelligence agency was the centralization of case management at headquarters in Washington, rather than the field offices around the country. With this came the placing of operational decisions in the hands of more “politically sensitive” individuals at headquarters.

The 9/11 investigations and related matters were the first to be moved from the field to headquarters. But the trend culminated with the investigations into Hillary Clinton’s emails and Russian election interference—both run from headquarters as well. Levels of review—and independent judgment—were eliminated. Thus, we learn that Peter Strzok —who held the relatively high rank of deputy assistant director of counterintelligence—was himself conducting interviews in both politically sensitive investigations.

After 9/11 there was much talk of the negative consequences of a “wall” between criminal and intelligence investigations. But you can talk over a wall. There was always—it was part of our culture—a discussion about how to proceed at the outset of a counterintelligence or terrorism investigation. To seek a warrant under the Foreign Intelligence Surveillance Act, with its lower standard of probable cause, when one would ultimately pursue a prosecution was considered an abuse of FISA. It is still an abuse. To shade the truth in a FISA application—as occurred with the “ Steele Dossier”—is characteristic behavior of an intelligence agency, not a “swear to tell the truth” law-enforcement organization.

FISA was never intended as a tool to pursue Americans. It was to be used to gather intelligence about agents of a foreign power operating in the U.S. The aim of this monitoring was to produce intelligence for our national decision makers. It was not intended to be used in criminal prosecutions. If an American is suspected of operating as an agent of a foreign power, that individual is better pursued under the Espionage Act, a criminal statute. The fruits of that monitoring could then be used in court for a prosecution. Using FISA to target a U.S. citizen is just not the right way to go.

As former FBI Director William Webster repeatedly told us agents: “We must do the job the American people expect of us, in the way that the Constitution demands of us.” All actions and decisions must once again be viewed though that prism. The Justice Department inspector general and others are now looking at specific alleged abuses.

Perhaps Deputy Director Andrew McCabe’s firing is a start. Mr. McCabe’s statement, in response to his firing, that “the big picture is a tale of what can happen when law enforcement is politicized” is, ironically, true.

What is needed is much more—a renewal of the FBI’s culture. When the smoke clears from the current controversies, Director Christopher Wray must help the bureau turn the page on this intelligence chapter and get the bureau back to the law-enforcement culture of fact-finding and truth-telling that once made us all so proud.

Mr. Baker is a retired FBI special agent and legal attaché.

Appeared in the March 20, 2018, print edition as 'What Went Wrong At the FBI.'