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The Terrorism Enhancement: An obscure law stretches the definition of terrorism, and metes out severe punishments.

by Shane Harris
Friday, July 13, 2007



There’s no doubt about it: Daniel McGowan is a criminal. In January 2001, he stood lookout while other members of a radical environmentalist group set fire to the offices of the Superior Lumber Co. in the tiny southwestern Oregon town of Glendale. In statement issued after the fire, McGowan justified the after-hours assault, calling Superior “a typical earth raper contributing to the ecological destruction of the Northwest.” Five months later, in the northern town of Clatskanie, McGowan and others torched a farm that grew hybrid poplar-cottonwood trees, which they denounced in another public message as “an ecological nightmare threatening native biodiversity in the ecosystem.” At the scene, McGowan painted the letters ELF, the acronym of the Earth Liberation Front, an underground band of economic saboteurs responsible for a string of arsons across the Northwest and in Colorado and Wyoming. McGowan, fully committed to ELF’s violent tactics, caused more than $2 million in property damage. He is, by the letter of the law and by his own admission of involvement in the two fires, an arsonist.

But is Daniel McGowan a terrorist? As far as the law is concerned, yes. Last month, a U.S. District Court judge in Eugene, Ore., ruled that McGowan set the fire at the tree farm to intimidate state governments. Specifically, the Clatskanie statement had declared, “Pending legislation in Oregon and Washington further criminalizing direct action in defense of the wild will not stop us and only highlights the fragility of the ecocidal empire.” That one sentence, the judge found, showed that McGowan meant to influence the conduct of government by intimidation or coercion, a particular legal standard that elevated his crime from simple arson to terrorism. Under the law, that gave the judge the authority to increase McGowan’s sentence to life in prison. In the end, however, she gave him seven years for his role in the arsons, partly because McGowan helped to persuade his co-conspirators to plead guilty.

McGowan is one of the latest defendants to come under the so-called terrorism enhancement, an obscure measure that allows judges to dramatically increase a person’s sentence if his or her offense “involved, or was intended to promote, a federal crime of terrorism,” as defined by Congress. Enacted in 1995 after the bombings of the World Trade Center and the Alfred P. Murrah Federal Building in Oklahoma City, the law aimed to stiffen sanctions rather than create new categories of crimes.

There is no comprehensive accounting of how often the enhancement has been used, but in the last eight years, federal prosecutors have successfully applied it against at least 57 individuals, according to the U.S. Sentencing Commission and court records. (There is no way to determine how many times prosecutors might have been unsuccessful.) Some of their crimes fit the traditional concept of terrorism, at least the one that the public has come to know in the wake of the 9/11 attacks: indiscriminant assaults on civilian populations, usually inspired by a fundamentalist religious ideology, that are intended to cause mass casualties.

However, an extensive examination by National Journal of cases where the enhancement was in play suggests that the government more often targets individuals who didn’t commit a religiously motivated act of terrorism, or who consciously avoided human casualties. Some defendants were driven by political outrage, and specifically targeted government facilities. But their crimes, while serious and violent, were covered by well-established definitions and punishments.

“We already have a very solid sentencing structure that punishes people for their crimes. This is beyond that,” says Deborah Buckman, a lawyer and an author for the professional journal American Law Reports Federal, who wrote a lengthy report on terrorism enhancements.

Stretching the Limits

In addition to McGowan, judges have imposed the enhancement on criminals for whom the label “terrorist” strikes some lawyers and judges as dubious. They include two men who set fire to an Internal Revenue Service office to protest tax collection; an anti-abortion activist who concocted a plan to blow up abortion clinics but never carried it out; a mentally ill man who telephoned bomb threats against local government offices and a television station; and a man who threatened a federal judge who had ruled against him in a trademark infringement case. Because of his plea deal, McGowan did not receive a tougher sentence despite the judge’s finding. But in other cases, the enhancement has dramatically increased the defendant’s prison time—sometimes more than threefold.

National Journal reviewed 35 cases that were publicly available through legal databases or court records. Fewer than half—13—involved individuals accused of supporting or conspiring with radical Islamic organizations. Three defendants were found to have actively engaged in formulating plots—one to attack the New York City subway system, the other the foiled attack on Los Angeles International Airport during New Year’s celebrations in 1999. A judge also applied the enhancement to John Walker Lindh’s conviction for supplying services to the Taliban regime, and he received a 20-year sentence.

The remaining defendants in those 13 cases provided “material support” to terrorist groups or engaged in preliminary plotting. In one case, the enhancement was applied to a young man who had backed out of a plan to blow up electrical substations in Florida. The government apparently has not sought the enhancement in some high-profile terrorism cases, including that of Zacarias Moussaoui, who was convicted of conspiracy in connection with the September 11 attacks and sentenced to life imprisonment without invoking the enhancement. However, prosecutors did use the law against the “Lackawanna Six,” a group of U.S. citizens in New York state who pleaded guilty to providing material support to Al Qaeda.

The application of the terrorism enhancement has largely been overlooked by the media, legal scholars, Congress, and terrorism analysts. The Justice Department is tight-lipped about how prosecutors determine when to seek it. Department officials declined National Journal’s request for an interview, and several federal prosecutors were reluctant to speak on the record about what motivates them to use it. Dean Boyd, the spokesman for Justice’s National Security Division, which oversees terrorism matters, said, “The decision by federal prosecutors to seek [the] enhancement depends on the facts and circumstances of each particular case. Ultimately, it is up to a federal judge to determine whether or not to apply the enhancement at sentencing.”

The enhancement has outraged some defense lawyers and judges, who see it as a government shortcut to label criminals as terrorists and to punish them in extraordinary ways. A judge, not a jury, decides whether the enhancement applies, based on a threshold of evidence lower than reasonable doubt. The enhancement automatically elevates a defendant’s criminal history—a key factor used to calculate sentences—to the highest possible level. It directs judges to increase the sentencing range at least “12 levels,” which can add 20 years. A defendant convicted of a relatively minor crime could suddenly find himself serving prison time on par with a hardened offender.

“It’s a very onerous enhancement, so when it applies, it’s really devastating,” says James Felman, a criminal defense lawyer and national authority on sentencing guidelines.

And it’s not just the enhancement’s severity that worries some experts. Courts have ruled that a judge can apply it even if a defendant wasn’t convicted of a terrorism act per se. The government need only convince a judge that the crime in question was aimed at the government and that it “involved, or was intended to promote” a specific act of terrorism—even one that was never carried out.

Congressional Confusion

Congress created the terrorism enhancement, not surprisingly, in response to terrorism. As early as 1991, but particularly after the World Trade Center bombing two years later, lawmakers and the Clinton administration realized that crimes involving terrorism—even if the act itself was already covered by statute—needed to be identified in law as such and accorded stiffer punishment. They wanted to account for the severity of the offenses, particularly the indiscriminant killing of civilians, and to deter future acts.

At the same time, lawmakers wanted to carefully define what qualified as terrorism. They had their work cut out for them. For starters, there was no crime of terrorism on the books. There still isn’t: Congress instead sought tougher sentences for a range of existing crimes when they were motivated by terrorist impulses.

Motive has always been a key to defining terrorism. That is, in fact, how society distinguishes the crime from other violent acts, such as murder or arson. Motivation and intent are also key factors in determining sentences. So, in the mid-1990s, Congress ordered the Sentencing Commission, which promulgates the guidelines, to include an anti-terrorism factor in the sentencing phase that accounted for specific crimes and required a basic motivation to affect, influence, or retaliate against government conduct.

Lawmakers gave explicit instructions that the enhancement had to meet two tests. First, there was the government-focused motive of the crime. That was broad, to be sure, but then Congress narrowed things a bit. The enhancement had to apply to one or more specific offenses enumerated in a section of the U.S. Code covering “acts of terrorism transcending national boundaries.” This was, in effect, a master list that Congress wanted judges to use. Today, it contains more than 55 discrete offenses that qualify as terrorism when the requisite motive is present, including destruction of aircraft; use of biological and chemical weapons; the burning or bombing of government property in a way that risks or causes death; providing material support to terrorists; attacks on energy facilities; and assassinating the president.

In so doing, lawmakers wanted to ensure that judges would not apply the terrorism label too broadly. In its conference report on the anti-terrorism legislation that established the sentencing enhancement, the House Judiciary Committee signaled Congress’s intent: “In order to keep a sentencing judge from assigning a terrorist label to crimes that are truly not terrorist, and to adequately punish the terrorist for his offense, it is appropriate to define the term.”

Something, it seems, got lost in translation. The Sentencing Commission’s final version of the enhancement includes a key phrase that never appears in the congressional record: “ … involved, or is intended to promote, a federal crime of terrorism.” On the basis of those 11 words, judges have applied the enhancement broadly—perhaps more broadly than Congress
intended.

An enhancement for “international terrorism,” which had been on the books less than a year, did contain the phrase “involved or is intended to promote.” But there is no indication that Congress intended it to apply to the subsequent version that more specifically defined a crime of terrorism. Still, based on this arguably broader guideline, judges have consistently ruled that a defendant need not be convicted of one of the enumerated crimes of terrorism for the enhancement to apply, so long as the motivation is there. These judges have exhaustively researched the definitions of “involved” and “intended to promote,” pulling out case law, precedent, and even the dictionary.

A Landmark Case

The U.S. Court of Appeals for the 6th Circuit upheld this reading of the guidelines in a landmark enhancement case, which it decided only a few months after the September 11 attacks. Randy Graham, a Michigan marijuana farmer and member of the North American Militia, had been convicted of conspiracy against the United States, as well as various weapons and drug violations. Graham had plotted to launch a “first strike” on the U.S. government by attacking various communications, transportation, and energy facilities, and killing certain federal officials. A District Court judge applied the enhancement to one of his convictions—for an offense not contained in the list of terrorism crimes—finding that Graham intended to promote an act of terrorism by plotting to attack various federal facilities. (He never carried out the plan.) The underlying offense carried a maximum penalty of five years in prison; the judge boosted Graham’s sentence to 55 years.

In a vigorous dissent, Judge Avern Cohn said that Congress never intended for people not convicted of a crime of terrorism to be subject to the enhancement. Senators, in their final conference report, gave the Sentencing Commission clear instructions: The new provision was “applicable only to those specifically listed federal crimes of terrorism, upon conviction of those crimes with the necessary motivational element.” Cohn said he was at a loss to determine why the Sentencing Commission included “involved, or was intended to promote” in the final version, because Congress never instructed it to do so. As he saw it, the commission had gotten it wrong, and the judge who sentenced Graham had made the same mistake.

Cohn had no sympathy for Graham. He wrote that his disagreement on the enhancement issue “should not be considered in any way a denigration of Graham’s crimes or in any way an attempt to simply ameliorate the severity of his sentence.” But to apply the enhancement “effectively labels Graham a terrorist and his activity as displayed in the record as terroristic activity,” Cohn wrote. And that was “grossly contrary to the language…defining a ‘federal crime of terrorism,’ as well as the congressional intent to keep the definition narrow.”

Even with the shock of the attacks on the World Trade Center and the Pentagon still fresh, Cohn found little comparison with Graham’s conduct. “Graham’s actions depict grossly less offensive, and qualitatively different, conduct than that displayed on September 11, 2001.” Cohn added that Congress’s concern in drafting the enhancement was “much like the concern of the delegates to the Constitutional Convention of 1787 over the definition of ‘treason,’ that ‘terrorism’ being a phrase which carries far-reaching connotations … is not to be used indiscriminately and must be carefully defined.”

Critics of the terrorism enhancement have seized on this issue of congressional intent to argue that the courts have veered into forbidden territory. Whether Congress agrees is hard to gauge. The lawmakers and staff involved in creating the enhancement have either retired or taken new jobs. Several former House Judiciary Committee aides contacted by National Journal couldn’t recall the details of the proceedings. By all accounts, Congress hasn’t examined use of the terrorism enhancement since it created it more than a decade ago.

The Punishment and the Crime

Many lawyers who have argued against the law had never heard of it until their clients were facing long prison terms. Sometimes they won partial victories.

William Mason, a criminal defense lawyer in Columbus, Ga., represented Eddie Garey, who was convicted of making several telephone bomb threats involving buildings in Macon. (The trial was moved to Columbus, 100 miles away, because of extensive publicity.) Garey objected to the government’s recommendation that the terrorism enhancement be applied. It was a first for Mason, his court-appointed attorney. “We don’t get any terrorism cases in Columbus, Georgia,” he says.

A jury convicted Garey, whom Mason describes as “mentally ill,” of 27 counts arising from threats to blow up the Macon City Hall, a shopping mall, and a local television station. According to the indictment, over a nine-day period in September 2003, Garey called the threats in to the local 911 center, altering his voice and making demands for cash. Authorities traced the calls to Garey’s home and caught him in the act. “My client was arrested standing in the hallway of his house buck naked making a 911 call,” Mason says.

Garey’s presentencing report, prepared by a local probation officer, recommended the enhancement because he was convicted of a crime involving the use of a weapon of mass destruction—an enumerated crime of terrorism—and because evidence at trial showed that Garey attempted to influence the conduct of government. The requisite elements were all there. Garey already faced a lengthy sentence based on the seriousness of his crimes, but the enhancement elevated his criminal history to the highest level. The probation report recommended a life sentence.

U.S. District Judge Clay D. Land found that a life sentence technically fit the guidelines. But there was a bigger principle at stake, he said, namely the overarching law that sentences must be based upon “the nature and circumstance of the offense and characteristics of the defendant.” The law directs a judge to impose a sentence that metes out appropriate punishment but not one that is more severe than necessary. In Garey’s case, a life term was excessive, regardless of what the terrorism enhancement dictated, Land ruled.

“In this case, the guidelines increase the defendant’s offense by 12 levels [approximately 20 years] for conduct of which he was not convicted by a jury,” the judge found. Garey was “arguably being held criminally responsible for conduct for which he was not indicted.” Because of the enhancement, Land pointed out, Garey faced a harsher punishment for threatening to blow up a building than would someone who actually followed through on that threat. “A violation for ‘threatening’ to commit an offense of international terrorism … has a maximum sentence of 10 years. Yet, this defendant, who ‘threatened’ to bomb various public facilities, faces life imprisonment.” The judge continued, “It is also troubling that another defendant who carried out a threat to bomb public facilities, injuring and maiming (but not killing) thousands of people, would face the same sentence as this defendant who did not cause physical injury to a single person.”

Land said that elevating Garey’s criminal history to the highest level “ignores the individual ‘history and characteristics’ of the defendant, and instead places too much weight on a questionable interpretation of what constitutes a federal crime of terrorism under the guidelines.”

Land reduced Garey’s criminal history level to the middle range and applied a new sentence—30 years.

Mason, Garey’s attorney, says that there’s no doubt his client’s behavior was “terror-invoking.” But he thinks that the enhancement is not being applied the way that Congress intended. “They want to be able to punish the guy who helped the [9/11 hijackers] sign up for flight school,” Mason says. Garey, by contrast, is an obviously disturbed man who never carried out his threats.

At least one other court has also balked at the dramatic sentencing increases imposed by the enhancement. In July 2004, the U.S. Court of Appeals for the 11th Circuit ruled on the case of Imran Mandhai, an apparently confused would-be jihadist who, over the course of several months, committed to and then backed out of a plot to blow up electrical substations in Florida. Whether Mandhai—who was 18 at the time—really intended to wage war against the government, he never followed through. But in May 2002, the government charged him with conspiring to blow up the stations; Mandhai pleaded guilty in exchange for a reduced sentence.

Federal prosecutors sought the terrorism enhancement, and a judge found that it applied. But he also reduced Mandhai’s sentence because the crime was inchoate. The government appealed to the 11th Circuit, which found that the district judge had acted improperly in the way he reduced Mandhai’s sentence but that he was right to consider the totality of Mandhai’s actions when deciding to deviate from the enhancement’s harsh penalty.

“The terrorism enhancement prevents the penalty from fitting the crime, based on the facts of this record,” the court ruled. “It is easy to forget that the sentencing guidelines are merely that—guidelines. Any attempt to remove all judicial discretion in sentencing would raise serious concerns about the separation of powers.”

The judges remanded Mandhai’s case, and he ultimately received a 14-year prison sentence. Last October, the Supreme Court denied his petition for a hearing. To date, the high court has not heard a single case involving the terrorism enhancement.

A Winning Streak

Taken on their own, the passionate objections and deep concerns surrounding the terrorism enhancement might suggest that the government is having a hard time getting the law to stick. In fact, the opposite is true.

The review of publicly available cases shows that judges uphold the government’s request for an enhancement far more often than they deny it. Prosecutors obtained the enhancement in 27 of the 35 cases that National Journal reviewed—more than 75 percent. To be sure, in a number of those cases the defendants did not object to the enhancement. The Lackawanna Six, for instance, agreed that it would be applied as part of their guilty pleas, and they were spared the 20-years-plus sentences because they cooperated with federal terrorism investigations.

But the government clearly wins on the enhancement more times than it loses, even when defendants object. Despite the skeptical opinions expressed by Cohn, Land, and the judges on the 11th Circuit, most judges appear to have had little problem accepting the guidelines at face value. This isn’t a leap of faith on their part. When it comes to matters of statutory interpretation, judges follow the language of the rule they’re given: They use it for a crime that “involved, or was intended to promote, a
federal crime of terrorism.”

In Daniel McGowan’s case, District Judge Ann Aiken noted that several judges before her—including those in the Graham and Mandhai cases—had offered no contrary statutory interpretation. Aiken applied the enhancement to one of McGowan’s crimes and to others committed by six of his co-defendants. The environmental saboteurs had been rounded up as part of the FBI’s Operation Backfire, a multi-agency investigation of ELF and the Animal Liberation Front.

The enhancement became a central focus of the Backfire cases. Environmental activists accused the government of trying to brand the defendants as “eco-terrorists” to advance the Bush administration’s security agenda. Defense attorneys strenuously objected to the enhancement, which they felt could land their clients in maximum-security penitentiaries with the most hardened criminals.

Echoing the sentiments of other Backfire defendants, the attorney for Kevin Tubbs, who pleaded guilty to multiple counts of arson and conspiracy, noted that the saboteurs took great pains to ensure that no one was harmed in the course of their crimes. (ELF and ALF are fundamentally opposed to taking any life, animal or human, their supporters say.) “A terrorist’s goal is to cause death, because death is the ultimate tool. Death is the ultimate source of fear,” Marc Friedman wrote in a 31-page objection
to the enhancement. “The government, and in particular this administration’s, use of the term ‘eco-terrorism’ and their efforts to tie these actions to domestic terrorism is misplaced. It seeks to place the actions of a loose group of animal rights and environmental activists on par with Timothy McVeigh [who blew up the Murrah Federal Building] and Al Qaeda.”

Friedman cited Judge Cohn’s dissent in the Graham case, arguing that Congress and the Sentencing Commission didn’t envision applying the law to defendants such as Tubbs, “defendants with no long history of association with international terrorist cells.” He portrayed his client as a passionate yet easily persuaded and manipulated man who, for a short period, engaged in “wrongful activities” for which he accepted full responsibility.

Judge Aiken was unmoved by Tubbs’s argument and those of his co-defendants. In sentencing Tubbs to 12 years and seven months’ imprisonment, she said that he had used fear as a tool. “You have created fear, made people fearful in their workplaces and homes,” she said. “Fear and intimidation can play no part in changing hearts and minds in a democracy.” Addressing the larger group of defendants, Aiken lamented, “You all seem to be very smart people. Why couldn’t kindness have been your tool? Stop destroying the Earth to send a message.”

In sentencing the activists under the terrorism enhancement, Aiken insisted that she was not trying to send a message. “The issue the court must decide is not whether the defendants are ‘terrorists’ as the word is commonly used,” she wrote in a lengthy ruling. “Nor is it appropriate for the court to speculate whether the government seeks to promote a particular political agenda or to punish a particular form of activism in requesting the terrorism enhancement.… The debate is about the defendants' criminal conduct—not their political beliefs.”

Prosecutors spent considerable time and energy securing the enhancement. They refused to take it off the table during plea negotiations, says Amanda Lee, McGowan’s attorney. But in the end, none of the defendants received more prison time. In fact, the government recommended reductions equal to the enhancement’s increases. The terrorism label stuck—and McGowan, as part of his plea, agreed not to appeal—but it had no real effect on the sentences.

The government has recommended reduced sentences, usually for cooperative defendants, in a number of other cases where it sought the enhancement. In still others, prosecutors have sought the enhancement only after a defendant reneged on an agreement to cooperate. This has led some analysts to conclude that it’s not always policy and principle that guide the government’s decisions on whom to treat as a terrorist.

The Bargaining Chip

Deborah Buckman, the lawyer who studied the use of enhancements, says she always suspected that the government had some motivation other than punishing terrorism.

“I felt, all the way through, that there’s got to be some game going on here,” she says. “It’s so outrageous that you can take someone who would get five to 10 years and sentence them for the rest of their lives.”
Buckman says she sees a pattern in the government’s often inconsistent application of the enhancement. “In the end, it really is just a bargaining chip,” she says. The threat of 20 years or more in prison is enough to compel almost any defendant to cooperate. Indeed, in the cases in which prosecutors sought the enhancement, but also offered sentence reductions, the defendants usually pleaded guilty and agreed to provide the government with information about their crimes or conspiracies.

When defendants renege on their agreements, case history suggests that the government punishes them by applying the enhancement stringently. Randy Graham, for example, initially agreed to cooperate with investigators and plead guilty to one count of conspiracy against the United States, which carries a five-year penalty. Graham’s co-conspirator, Ken Carter, who was the commanding officer of their North American Militia, pleaded guilty to the same charge in exchange for total cooperation with the government. In outlining the sentencing guidelines for Carter and Graham, prosecutors never mentioned the terrorism enhancement. It surfaced in Graham’s case only after he withdrew his plea and went to trial.

The first reference appeared in the government’s presentencing report after a jury found Graham guilty. Prosecutors—apparently without written justification—recommended that the enhancement be applied to not one but four of Graham’s offenses, three of which were not enumerated crimes of terrorism. The judge applied the enhancement to one of the unlisted crimes; Graham appealed, and the 6th Circuit Court’s ruling against him became a national precedent.

But what about Carter’s case? Likewise, the government never mentioned the terrorism enhancement until it submitted a presentencing report. But when the court used those recommendations to determine Carter’s punishment, it departed from the guideline range—that potentially 20-year increase—“because the count of conviction carries a five-year maximum statutory penalty.” Carter got a lesser sentence than Graham, even though he was the militia leader and their conspiracy crimes were the same. The court also recommended to the Bureau of Prisons “that [Carter] be placed in a less-secure facility than may be indicated by criminal history category VI,” the highest level, which the enhancement requires. “In fact, his true criminal history is I.”

Assessing the disparity in sentences between Graham and Carter, Judge Cohn questioned whether the government really thought either man was a terrorist. “Approving a plea agreement which limited [Carter’s] sentence to 60 months was a recognition of the fact that the district court did not believe that Carter committed a ‘federal act of terrorism,’ ” Cohn wrote. “The government also did not consider Carter a terrorist, as evidenced by his plea agreement. Likewise, the government did not view Graham as committing a ‘federal crime of terrorism’ until after it received the [presentencing report].”


Constitutional Stakes

The terrorism enhancement could open a veritable Pandora’s box of constitutional concerns, in light of recent Supreme Court rulings that judges need only consult the sentencing guidelines—they are no longer mandatory. Terrorism enhancement is applied at the judge’s discretion, says Bobby Chesney, an associate professor of law at Wake Forest University Law School, who specializes in national security issues. Because judges can choose when to use the enhancement, Congress’s intent when it crafted the law is less important, Chesney says.

Some experts say that a bigger question is whether a jury should decide when to apply the enhancement. In the landmark case U.S. v. Booker, the Supreme Court ruled that under the Sixth Amendment a jury must determine any facts that increase a criminal defendant’s sentence beyond the customary range for his or her particular crime—which is what the terrorism enhancement does. The standard of evidence is the same as at trial: beyond a reasonable doubt. However, the Court stopped short of requiring juries to review sentencing enhancements. Instead, the sentencing guidelines are now only advisory—judges still have to consult them, but they are no longer required to sentence defendants according to the ranges that the guidelines recommend. So far, judges have ruled that the terrorism enhancement requires a lower evidentiary threshold than reasonable doubt, and no jury has been involved in an enhancement decision. This uneasiness over judges, rather than juries, applying the sentencing law goes to the heart of the Supreme Court’s decision to hear Booker, as well as Washington v. Blakely, which concerned state sentencing guidelines. There, the Court ruled that judges couldn’t
enhance sentences based on facts that a jury didn’t decide.

Felman, the sentencing expert, notes that those rulings didn’t require juries to decide enhancements. Instead, they required sentencing judges to use discretion, and to keep in mind the nature of the crime. “They should not consider themselves bound to sentence within a range determined by the guidelines where it results in a sentence greater than what is necessary to achieve the purposes of punishment,” he says.

Looking to the future of the terrorism enhancement, Felman and other experts ponder the possibilities. In the wake of an event on the scale of 9/11, might prosecutors use the enhancement to label more people as terrorists, or to punish a wider variety of offenses that they believe were “intended to promote” violence against the government?

“Absolutely,” Felman says. “There aren’t too many examples in our history of prosecutors not using power given to them.

“A line prosecutor doesn’t need to get anyone’s permission to go ask for an enhancement. They just do it,” Felman says. That’s problematic, he thinks, when grappling with a concept as amorphous as terrorism. “The word terrorism is kind of a dangerous one,” Felman says. “It’s just inherently going to result in some unfair applications. Any time you have an adjustment that is that large, the potential for abuse is great.”


Reporting Interns Alexander Burns and Candace Mitchell contributed to
this article.

Published in National Journal.

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Full Article

Most Dangerous Theory

by Shane Harris
Friday, June 15, 2007



As details emerge in the case of Andrew Speaker, the 31-year-old runaway groom with a drug-resistant strain of tuberculosis, more questions arise about whether the nation's defenses against biological agents, as well as terrorists, are in proper working order, and whether health and homeland-security officials have truly adapted to the unpredictable nature of such threats.

At first glance, it seemed that the breakdown that allowed Speaker to re-enter the United States last month -- after having left for his wedding in Greece knowing that he was infected with TB -- could be laid at the feet of one recalcitrant border guard.

On May 24, Speaker, driving a rented car with his bride, approached the busy U.S.-Canadian border checkpoint in Champlain, N.Y. Speaker presented his passport to a Customs and Border Protection officer, who electronically scanned it and got back a "lookout" notice that Customs officials had dispatched two days earlier.

The notice -- which is not a "no-fly" order or a warning triggered by a terrorist watch list -- instructed that Speaker should be taken to secondary screening, then isolated, placed in a ventilated area, and required to wear a protective mask. It also said that Speaker had an extensively drug-resistant form of TB, and that the border station should contact a specific medical officer at the Centers for Disease Control and Prevention in Atlanta.

The border guard didn't question Speaker about his illness, officials have testified. Nor, apparently, did he pay the alert much mind. Rather, he decided that Speaker "did not appear sick" so he let him go through, officials said. The border guard is awaiting disciplinary action.

Before congressional hearings on Speaker's case last week, officials were on their way to chalking up the incident to human error. Customs' nationwide lookout for Speaker had been transmitted flawlessly. The border guard had all the information he needed to detain Speaker, but simply chose otherwise -- a momentary lapse in judgment that foiled the entire defense apparatus, but an isolated lapse, nonetheless.

Or was it? True, the lookout system -- called the Treasury Enforcement Communications System -- functioned as designed, and officials testified that Customs and CDC employees in Atlanta, where Speaker's original plane reservations were supposed to return him on June 5, cooperated to get his name in the system once health officials determined that he had the resistant, and potentially fatal, form of TB.

But it's what officials didn't do in the two days between the time they learned about Speaker's specific illness and the moment he slipped back into the United States that troubles lawmakers. Although disease experts stress that Speaker was never contagious, the case has exposed weaknesses that plague the nation's multilayered defenses against biological and terrorist threats. These systems have improved markedly since the 9/11 attacks, but they are still vulnerable to human error. And the Homeland Security Department's tendency to treat such threats as routine, when in fact they might be anything but, is unsettling.

Key facts are still unknown about the sequence of events in Speaker's case. But according to congressional testimony last week, Homeland Security officials didn't at first place Speaker on a no-fly list -- which in theory would have kept him off any commercial airliners bound for the United States -- because they didn't believe he would abscond. Indeed, they presumed that Speaker would fly home as planned to Atlanta on a June 5 Air France flight. Even though officials knew that Speaker had a rare form of TB and that Speaker knew they knew, officials thought that he would behave rationally and predictably.

Of course, that's not what happened. Speaker, at significant expense and risk, fled from his hotel in Rome, then made his way to Prague and boarded a Czech Air flight to Montreal. From there, he rented the car and drove across the border. He apparently believed -- incorrectly, as it turned out -- that U.S. officials had placed his name on a no-fly list, which is why he chose to fly through Canada. (In fact, the Canadian no-fly list is identical to the U.S. list, so if Speaker had been listed at that point, it's plausible that he would have been denied permission to fly into Canada.)

Speaker is no terrorist. But he sure acted like one, in several key respects. He deliberately attempted to cover his tracks. He looked for alternative ways to penetrate the U.S. security system. And he disregarded the safety of those around him. Although Speaker emphasizes, and health officials concur, that he was never contagious, they also know that he could have become contagious during his journey. CDC officials told him to stay off commercial flights, and turn himself in to Italian medical authorities. CDC Director Julie Gerberding said, "We make decisions based on the theory that the patient will cooperate." But Speaker didn't.

Experts like to say that terrorists don't follow the "rational actor" model, but that model informed many of the assumptions that the United States followed during its Cold War against the Soviet Union, and the mentality has been hard to shake. The model holds that national decision makers -- and therefore governments, and sometimes individuals -- operate in a manner that maximizes their benefits at the least cost. Terrorists, however, behave irrationally. They engage in all kinds of behaviors that put them at risk for detection and death -- which, of course, doesn't deter them. The "irrational actor" doesn't care how many people he kills or injures, and that mind-set makes his actions harder to anticipate.

So it was, in a sense, with Speaker. But rather than presume that he might act irrationally, or at least less than rationally, Homeland Security officials presumed that Speaker would follow his predetermined course. Jayson Ahern, assistant commissioner for field operations at Customs, told the House Homeland Security Committee that beginning on May 22, the day that Customs officials learned about Speaker's case from the CDC and put his name in the lookout system, the bureau began scanning Speaker's Air France reservation twice daily, to see if he made any modifications.

But, Ahern said, the system isn't designed to detect new reservations -- only changes to existing ones -- so no one noticed when Speaker booked a ticket to Canada on Czech Air. The best way, it seems, to ensure that Speaker stayed off a plane would have been to put him on the no-fly list.

Speaker appears to have behaved somewhat rationally on his return trans-Atlantic journey. According to Homeland Security officials, including the department's chief medical officer, Dr. Jeffrey Runge, Speaker wore a mask on the Czech Air flight. But then, in Canada, he again took evasive action. At the border crossing, officials said, he informed the guard that he and his wife were in Canada on a "mini-vacation." He lied, perhaps to divert attention away from his international travel.

Homeland Security officials didn't put Speaker on the no-fly list until after they learned he had already returned to the United States, and then only after the CDC made a direct request. According to a timeline compiled by the House Homeland Security Committee, government officials engaged in considerable legal wrangling over whether Speaker could be added to the list, because he wasn't a terrorist.

Runge testified that the Transportation Security Administration could not recall an instance where the agency had put an individual on the no-fly list for health reasons. Ultimately, the TSA's general counsel had to convince the administrator, Kip Hawley, that he had the authority under transportation laws to take the action, and Speaker's name was finally added to the list.

"We have no history in this regard," Runge said. "This was, in fact, a novel case."

But lawmakers seemed skeptical of that excuse and of officials' assertions that the entire Speaker manhunt was undone by one human being's mistake.

"DHS states in their testimony today that there was a single point of failure in this case," Homeland Security Committee Chairman Bennie Thompson, D-Miss., said. "But I've done my own timeline of the actions and inactions of DHS and CDC, and it suggests that we should have connected more dots. Shrugging off a deeper analysis of this incident will only cause DHS to repeat its previous failures."

Among the key questions that Thompson wants answered, but that may remain unresolved for some time, are why Homeland Security officials didn't move faster to put Speaker on the no-fly list, and "why did CDC think that Speaker would turn himself in to Italian medical authorities?"

Thompson praised many of the government's actions and said that it would be "unfair ... to characterize this as a total system failure." But the best decisions, he said, were made "ad hoc," which suggested that "we still do not have adequate operational control over our components."

The bigger question may be why officials didn't exercise those controls sooner. In response to the border guard's error, officers no longer will have the authority to overrule a lookout notice without a supervisor's approval. And Runge indicated that, in any future such incident, top DHS officials would convene much sooner, hopefully before a seemingly rational patient becomes an irrational absconder, and a national security risk. If that means that DHS will lower its threshold for action, it could lead to more international manhunts like the one for Speaker, but it also might help the department train itself to adapt to unpredictable threats.

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The Coming Storm

by Shane Harris
Friday, June 01, 2007



On November 2, 2004, top officials from the Homeland Security Department held a small Election Night party at a Washington restaurant to watch the presidential election returns come in on television. Nearly every leader there owed his job to the man then fighting for his own job -- George W. Bush.


The department was almost two years old and run almost entirely by political appointees. Twenty-three months earlier, they had been tapped to lash together 22 disparate, frequently dysfunctional agencies, some of whose failures to safeguard domestic security contributed to the 9/11 attacks.

As the returns trickled in, there was an hour or so when it appeared that Bush's Democratic rival, Sen. John Kerry of Massachusetts, might overtake him in the electoral vote count. Rather suddenly, some partygoers recalled, it dawned on them that they might be out of a job.

As they looked around the room, they realized they hadn't fully considered who would replace them. Who, they wondered, would keep the department running while President-elect Kerry picked a new leadership team? What career officials, whose posts are designed to outlast any one administration, would step in to ensure that planes flew safely, that borders were patrolled, that the government could respond swiftly to a natural disaster? No one could say for sure, because DHS had no plan.

"All the politicals thought we were out," says Stewart Verdery, then the department's assistant secretary for policy and planning for border and transportation security. Verdery was an energetic and experienced Capitol Hill staffer who had come to Homeland Security after a stint as senior legislative adviser to Vivendi Universal, the media conglomerate. But DHS was uncharted territory. "There was a definite sense that the transition was going to be rocky," he recalls.

The department's top echelons, of course, never had to experience what horrors a clunky handover of power could bring. But whether those leaders knew it or not, they possibly had just averted more than a management disaster.

The 1993 bombing of the World Trade Center and the attacks of September 11, 2001, both occurred within eight months of a change in presidential administrations. (At the time of the first attack, Bill Clinton had been president exactly 37 days.) In March 2004, Qaeda-linked terrorists bombed four Madrid commuter trains three days before Spain's national elections. Periods of political transition are, by their very nature, chaotic; terrorists know this, and they exploit it. This is the reality: Terrorists strike when they believe governments will be caught off guard.

As of June 2, there are 597 days until the next presidential inauguration, on January 20, 2009. As the Bush administration's days wind down, the government's level of vulnerability -- and the nation's risk level -- increase, and they will stay high until the next president gets on his or her feet. This is true in any transition. "The first year and a half of a new administration is really the most vulnerable in terms of political leadership," says Paul Light, a professor at New York University's Wagner School of Public Service.

Be Prepared

January 2009 has current and former officials particularly worried, because it marks the first time since 9/11 that the reins of national and domestic security will be handed off to a completely new team. At the Pentagon, this changeover doesn't matter as much. It has an entire joint staff of senior military officers who oversee worldwide operations, as well as regional military commands whose senior leadership stays in place. The Homeland Security Department, however, is another story. It is still run almost entirely by political appointees and stands to be the most weakened during the transition.

"Any of the other main Cabinet departments have civil servants that step in" as acting officials during a transition, says Stephen Flynn, a senior fellow at the Council on Foreign Relations and a leading expert on the department and its history. "Homeland Security doesn't have any of those.... And that's extremely unusual."

In the four and a half years since the department opened for business, few career officials have been promoted into positions of senior or even middle management. As a result, most of the responsibility for running the department, and its plethora of critical missions, is still in the hands of people who will be walking out the door as the Bush administration wanes or leaves en masse after the election. "The department virtually has no backbench," Flynn says.

The upheaval that strikes all organizations during presidential transitions will be magnified at Homeland Security, which has the third-largest workforce of any Cabinet department. And because the department's primary mission is to prepare for and respond to catastrophes, the magnitude of a terrorist attack or natural disaster during the transition could be compounded.

"The attack, when it happens, will be far more consequential," Flynn says. Light echoes that sentiment, and alludes to the department's most notorious disaster response. "The odds of a repeat of [Hurricane] Katrina are higher."

Former officials and experts are alarmed that so few Bush administration officials or lawmakers of either party have fully grasped this, and they worry that come Inauguration Day, national security could suffer.

"My fear is that on January 20, where does that transition team go to triage, quickly, the first 10 decisions they need to make?" asks Randy Beardsworth, who left the department in September 2006 as the assistant secretary for strategic plans. "There's not going to be a senior official with broad experience to answer that unless the transition team gets a couple of key folks to stay on a while."

When he departed DHS, Beardsworth was one of the last remaining senior officials who had helped the department stand up. And at the time of the 2004 election, he was one of the few career civil servants -- and the most senior one -- in a leadership post, and thus one of the few senior leaders who would have stayed on without having to be asked.

What people like Beardsworth -- career, nonpartisan security experts -- fear now is that another storm is heading the department's way. It makes landfall in 597 days, and the consequences could be severe. Hurricane Katrina was tracked on radar for several days before it struck; federal officials did make some preparations, but obviously they were inadequate. Will the department be ready for this next season of vulnerability? Some officials and homeland-security experts say that the Bush administration -- and even the presidential candidates -- should take action now to avoid a crisis.

Political by Design

The predicament in which the department now finds itself is almost entirely of its own and the White House's making. President Bush, who initially opposed creating a different domestic security bureaucracy after 9/11, ultimately assented amid mounting evidence about what clues the administration missed in the run-up to the attacks. Indeed, the White House changed its stance at the same time that Congress held hearings into pre-9/11 intelligence failures, in the summer of 2002. Before the year was out, Bush signed legislation to establish the department, which opened officially in January 2003.

From its inception, Homeland Security was run by political appointees or by other officials on loan to headquarters from the various agencies the department had absorbed. There wasn't a lot of time to post job notices and staff the ranks with career employees, who take much longer to hire, former officials say.

DHS had to be fully operational on day one. So, the White House and then-Secretary Tom Ridge largely handpicked their leadership team from the ranks of Bush loyalists. Before the 2004 election, Ridge's deputy secretary, his chief of staff, and almost all of his assistant and undersecretaries and their deputies were political appointees, people who by design would not stay long.

Former officials and experts recognize that haste dictated those early decisions. The problem, they say, is that the trend toward political appointees never subsided.

According to figures compiled in the quadrennial Plum Book by the Office of Personnel Management, as of September 2004 the 180,000-employee Homeland Security Department had more than 360 politically appointed, noncareer positions.

By contrast, the Veterans Affairs Department -- the government's second-largest department, at 235,000 employees -- had only 64. And the Defense Department -- far and away the largest department in the government, at 2.1 million employees, including military and civilian -- counted 283 appointed, noncareer billets. That figure includes political appointees at the Army, Navy, and Air Force. DHS's own reports show that since 2004, it has often added more political positions to its ranks, and more frequently, than other large departments.

It's common in government to find political appointees concentrated in policy shops, public-affairs offices, and legislative liaison posts. But that has never been the case at Homeland Security, where appointees run the first- and second-tier layers across almost all of the department's units.

"Early on, there was a sense that the administration wanted mostly political people," Beardsworth says. "They were very much concerned about loyalty and shaping the department where they wanted it to go." He says he always believed that his boss, Asa Hutchinson, the first undersecretary for border and transportation security, as well as Ridge "had the good of the country at heart.... I never had the feeling that we were making partisan decisions."

But after the 2004 election, when Bush announced that he "earned capital in the campaign, political capital, and now I intend to spend it," things changed. Under the new DHS secretary, Michael Chertoff, former officials say that the tone and tenor of political appointments took a turn. Personal connections and political fealty became litmus tests, these ex-officials say. Faithfully shepherding administration policy was to be expected, but the department's leaders seemed more beholden to individuals with close ties to the White House.

In September 2005, for instance, the administration sought to install Julie Myers, a 36-year-old lawyer with little management experience, as the assistant secretary in charge of the Immigration and Customs Enforcement division. ICE was poorly run and a constant problem for the department, and during her nomination hearing, Sen. George Voinovich, R-Ohio, told Myers she was unqualified to helm the unwieldy agency.

For many critics, Myers's strong political connections explained her swift rise to power. She is the niece of Air Force Gen. Richard Myers, then the chairman of the Joint Chiefs of Staff. She is married to John Wood, who was Chertoff's chief of staff and an ex-aide to Attorney General John Ashcroft. (Wood is now the U.S. attorney for the Western District of Missouri.) Despite Julie Myers's lack of experience, President Bush gave her a recess appointment to the job.

The Land of Misfit Toys

Charges of nepotism, cronyism, and incompetence continued to dog Homeland Security's senior ranks, particularly after the fumbled response to Hurricane Katrina, which was initially directed by an official with meager experience in disaster response -- Michael Brown. Nominees who would normally have slid into their jobs with little notice were now held up to scrutiny and sometimes ridicule. Take the case of Andrew Maner, a former staffer to President George H.W. Bush, who became the department's chief financial officer. Responsible for a multibillion-dollar budget, Maner couldn't point to any obvious credentials in accounting and finance on his resume.

And then there was Douglas Hoelscher. The former White House staffer and Republican campaign aide was 28 years old when he became executive director of the Homeland Security Advisory Committee last year. The policy group gathers advice on such critical issues as protecting infrastructure and countering weapons of mass destruction.

Hoelscher had no management experience, but had apparently proven himself as a Bush campaign staffer. At the time of his appointment, he was the department's liaison to the White House, where, in the words of a Homeland Security spokeswoman, he "made sure [that political appointees] were all placed in the office where they were happiest and ... fit best."

Most recently, Philip Perry, the department's now ex-general counsel, stirred critics' ire. Perry is Vice President Cheney's son-in-law. In February, David Walker, the comptroller general of the United States and Congress's chief watchdog, told House overseers that his office faced "systemic" and "persistent" problems trying to obtain DHS documents because it had to go through Perry. Walker complained that Perry's office reviewed documents before their release, and that his staff sat in on investigative interviews with Homeland Security employees.

Of all the departments in the government, Homeland Security has the most notorious reputation for placing political appointees in jobs over their heads. In fact, even before the bungled response to Katrina, critics warned that the department could be come a haven for patronage if officials didn't work hard to beef up DHS's career ranks.

Indeed, Homeland Security has earned a reputation as a political dumping ground, a sort of Land of Misfit Toys, where GOP fundraisers or apparatchiks are sent to pad their resumes or to cool their heels. There is more than a little truth to this -- the department does have a lot of political appointees whose main strength seems to be loyalty to Bush and connections to the White House. But former officials and observers say that the department has many well-intentioned and hardworking political employees, including in the senior ranks.

Nevertheless, the stain of incompetence and cronyism hasn't faded, nor has the reality that Homeland Security is something of a revolving door. According to Flynn, of the 60 top officials at the department, only one has been there since 2003 when Homeland Security opened its doors.

"This is essentially the most challenging merger and acquisition in government history, and it's being managed with this turnover in people," Flynn says. His fear, shared by other experts, is that the limited institutional memory of the Ridge years was lost under Chertoff, and that that memory will be lost again when a new administration takes over.

The department's leaders have virtually no playbook for transition, something other departments and agencies of that size literally pull off the shelf every four or eight years. "They're almost starting from scratch," Flynn says.

The Exit Strategy

If the department is to weather the storm of transition, it will largely depend on the efforts of one man -- Michael Jackson, Homeland Security's deputy secretary.

"If a day goes by and I don't use up some of my brain cells focusing on this problem, it's a very unusual day," he says. The administration has a set of policy goals it wants to achieve before the transition. But underpinning that, Jackson says, is a plan to leave the department stronger than it is now, "so that people [will] start a new administration with the sense that the department has reached a level of maturity." The possibility of a major attack before or soon after the transition factors into his planning.

Jackson says he is drawing up succession plans for "every operational component": the Secret Service, the Immigrations and Customs division, the Federal Emergency Management Agency, and others, as well as the top layers of management. The basic idea is to find talented career, nonpolitical employees who can move up into more-senior ranks, and then serve in an acting capacity when the administration changes hands. (It will be the next president's prerogative to keep or dismiss those officials.)

"We've gone throughout the entire organization and looked for people like this to promote," Jackson says. "We're trying to nurture a cadre of owners. I am the part-time help at DHS."

Jackson acknowledges that it hasn't been easy to keep good help. "We've had a significant turnover," he says. "And that turnover has been below the top-level jobs as well." But, he insists, preparations for the transition are well under way. "I would say we are well beyond the halfway point in what we have to get done."

Certain agencies within DHS ought to fare better than others. The Coast Guard, for instance, has an entrenched military culture, so command will shift more smoothly. The Secret Service, although now headed by a presidential appointee, will still likely draw from within its own ranks in the next administration. And in the intelligence directorate, officials have implemented a slew of training programs to cultivate junior officers for more-senior posts.

But it's the headquarters operation, not the front-line agencies, that has observers most worried. The constant turnover and reliance on political appointees has effectively stunted the growth of a management class.

There are notable exceptions. The current commissioner of Customs and Border Protection, Ralph Basham, and FEMA Director David Paulsion have spent most of their careers in government and have held other senior positions in the department.

But across the top layers of Homeland Security, critics say, the department is still far more reliant on political appointees than other large departments. And this state of affairs causes some national security experts to pose a challenge to the field of 2008 presidential hopefuls: Commit now that if you win the election, you will keep the top leaders at Homeland Security, and across the intelligence agencies, perhaps indefinitely.

Permanence in Transition

It might seem anathema that, say, a President Hillary Rodham Clinton would ask Michael Chertoff or any of his lieutenants to serve in her administration. It might seem even less likely that any candidate of either party, given how forcefully they'll try to distance themselves from the security policies of the Bush administration, would throw out an open invitation for the architects of those policies to hang around. But that might just be the soundest move in the interests of national security.

"It's possible," Jackson says. For example, even if Chertoff left, his replacement could ask the director of FEMA or his deputy to stay. "That would be one thing I'm prepared to advise," Jackson says. And there is precedent for such a move.

Michael Hayden, now the director of the CIA, served under two presidents -- Clinton and the second Bush -- as National Security Agency director. Ex-CIA Director George Tenet also held on to his job in that transition. True, Tenet lobbied to stay, and the CIA director's success has always depended on a personal rapport with the president. (Tenet and Bush got along from the start.) But Hayden and Tenet proved that professionals can overcome politics, at least during a transition.

Members of Congress have considered awarding top intelligence and security jobs political immunity. In the mid-1990s, House Republicans contemplated making the CIA director the head of the agency -- rather than an overall intelligence czar as the director was then -- and giving the position some statutory longevity. The idea was to make the job more like the FBI director's post, which doesn't automatically turn over on Election Day, says Tim Sample, who was the staff director of the House Permanent Select Intelligence Committee at the time.

"The only reason we did not take that step in our recommendations was the issue of the personal rapport with the president," says Sample, who is now president of the Intelligence and National Security Alliance, a nonprofit intelligence advocacy group. Lawmakers understood that the president and the CIA director had a unique relationship, one they thought should be preserved. But they still believed that, fundamentally, the job should be above politics, and Sample says this is truer than ever today.

This idea is gaining traction again in security circles, especially in the intelligence community, where many current and former officials think that the recent appointments of several seasoned experts to top slots has resulted in a "Dream Team." Defense Secretary Robert Gates is a former CIA director; career intelligence officer James Clapper is Gates's military spy chief; former National Security Agency Director Mike McConnell is now director of national intelligence; and Hayden, the ex-NSA chief, is running the CIA.

Former officials and experts recoil at the idea of losing such a deeply experienced, collegial, and by all accounts remarkably apolitical team of leaders at such a critical moment for national security. They want lawmakers and the presidential candidates to consider keeping those officials in their posts.

The same goes for Homeland Security. "The only reason there are all those [political] positions is just because of the way the department came together," Sample says. "One could argue those should not be political positions."

There's precedent for that, too. Before the Office of the Director of National Intelligence was established in April 2005, career assistant directors managed the intelligence agencies, and were charged with overseeing various programs and policies that stretched across administrations. On a practical level, the agencies needed that continuity, but officials also wanted to avoid politicizing intelligence, Sample says. It has always been a difficult goal, inconsistently achieved, but it's one that all presidents are encouraged to aim for.

Some experts have suggested that Congress cap the number of politically appointed senior posts at Homeland Security as a way of stanching future brain drains. Sens. Voinovich and Daniel Akaka, D-Hawaii, have proposed legislation to elevate the undersecretary for management to the third-ranking spot in the department. The bill would require a career employee to also serve in a five-year term as the secretary's "principal adviser" on management issues.

Jackson, the deputy secretary, strongly opposes the bill, saying it is unnecessary. He insists that the current leaders understand the problems Voinovich and others have expressed. "This is stuff we all talk about," he says. "The team gets it.

"I won't blow smoke at you and say everything is nailed down and perfectly fixed," Jackson continues. "The day that someone in my department tells you that about DHS is the day that person should get out of his job.... But [the transition plan] is not something I feel anxiety about."

Opportunity Lost

Those who know Jackson and have worked with him say he has never been one to put partisanship over security, and that he is not biased against career employees. But some have accused him of micromanaging the department and not handing over enough authority earlier to career officials. These failures, they say, have retarded the department's maturation process. For his part, Jackson says he's focused on the transition, and has drilled the urgency into all of his lieutenants.

In government, organizations mature by finding the right balance of politically motivated leaders and apolitical bureaucrats. The former have the ability, and the credibility, to make policy, and the latter actually know how to make it work. This is the tension that, sooner or later, leads to equilibrium.

Beardsworth, the former assistant secretary, has always adhered to that philosophy. He's now a vice president at Analytic Services, a nonprofit research group that advises security and intelligence agencies. Its Homeland Security Institute, a federally funded research and development center established in the same law that created DHS, is counseling senior officials on transition strategies. Knowing the department lacks a playbook, Beardsworth hopes the institute has enough experts to help ease the transition, and he praises Jackson for taking action now.

But like Jackson, Beardsworth isn't blowing any smoke. "Does the department have the right political and career mix to ensure a smooth transition?" he asks, sounding like a frustrated yet hopeful parent. "No. They've likely missed that opportunity."

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Shadow Hunters

by Shane Harris
Wednesday, May 02, 2007



It started with a phone call. On April 23, 2004, a Friday, a man calling himself "Al" contacted the Homeland Security Department in Washington. He claimed that he knew a group of terrorists who were going to blow up a building. Al knew this, he said, because he was once a member of Al Qaeda.

The shadowy warning could have easily been swallowed up in the flow of hundreds of crank calls and sketchy leads about airport attacks and bombs on bridges that flooded government hotlines that year. But this call was different: Al named a place, and a date.

Los Angeles, next Thursday, the 29th, Al said. A shopping mall near the Federal Building on Wilshire Boulevard and the close-by campus of UCLA. Al said that a cell of three terrorists would enter the country from Canada. He even gave names. This didn't sound like a crank. Could it be for real? Could this be the one?

Forget about what you think homeland security really means. For now, put aside thoughts of stripping down at airport security checks. Never mind those seemingly random spikes in the color-coded national threat level -- and whatever happened to those alerts, anyway? From a city's point of view, where distinguishing hoax from horror can turn on a single phone call, this is how you fight a war on terrorism.

Officials in Washington immediately called L.A.'s Joint Terrorism Task Force, a team of FBI agents, Homeland Security officials, and local police and sheriff's officers. The FBI set up dozens of these task forces in cities across the country after 9/11, and they quickly became magnets for bureaucratic turf tussles. But in L.A., partly owing to a long history of cooperating on anti-gang and drug squads, the local cops and the feds got along well.

After getting Washington's call about Al, the FBI set up a team within the task force to vet incoming tips, including other bomb threats. The police department's terrorism analysts canceled their weekend plans. Unnoticed in the hustle and flow of city life, L.A. went into terror mode.

At least two big malls were near the Federal Building and UCLA. On busy West Pico Boulevard was the Westside Pavilion, with more than 160 stores. Over in the Fairfax District, a historically Jewish neighborhood, the fashionable outdoor plaza called the Grove beckoned shoppers and moviegoers to its stores and cinemas. Before the Los Angeles Police Department and the mayor told thousands of Angelinos to stay away from these two sites, the authorities needed to know what they were up against.

FBI agents traced Al's call to a prepaid phone card. They tracked down the card seller, who gave agents a log of Al's calls. It turned out that his real name was Zameer Mohamed and that he had called in the bomb threat from Room 308 of a Comfort Inn in Calgary.

Hotel management told agents that a Samier Hussein had rented the room. Authorities ran the name and got a hit in federal records: Mohamed had used Hussein as an alias in Texas, where officials had investigated him the year before on a theft charge. Was Mohamed changing names to cover his tracks? That would have helped him if he wanted to evade U.S. authorities or the Qaeda members he had ostensibly just ratted out.

Life Goes On

Meanwhile, in Los Angeles, local authorities were analyzing the bomb threat. The city's top terrorism officials were seasoned experts. John Miller, the head of the LAPD's counter-terrorism operation at the time, was a former journalist with deep ties to the FBI. He was also the last Western reporter to interview Osama bin Laden before 9/11.

The department's chief, William Bratton, was perhaps the most famous cop in America. He was appointed New York City's police commissioner a year after the 1993 World Trade Center bombing, and he led a dramatic reduction in crime citywide. Miller was Bratton's spokesman then. The two were plugged in to those who knew the national threat picture.

No one in Washington had said it publicly yet, but even as Mohamed made his call in April 2004, multiple and credible sources had convinced counter-terrorism officials that Al Qaeda was planning a major attack in the United States. The "chatter" about a strike was at its highest level since 9/11, intelligence agencies calculated.

A month earlier, coordinated bombings on commuter trains in Madrid had killed 191 people. Some senior officials believed that Al Qaeda struck Spain in an effort to turn popular support against the conservative government, which backed the war in Iraq and was up for re-election.

The Americans thought that the terrorists might try something similar in the United States, possibly with attacks at the upcoming national political conventions. Senior officials also feared the possibility of strikes aimed at the Group of Eight summit in Sea Island, Ga., and even the opening of the World War II Memorial in Washington.

There had also been worried talk about a dirty bomb. Specifically, intelligence and diplomatic officials had homed in on three Qaeda operatives who had overseen experiments to build explosives containing radioactive material or deadly chemicals. America was bracing for a hit. In that anxious atmosphere, how could anyone ignore Mohamed's tip that three terrorists were about to go after L.A.?

On Wednesday, the day before the threatened attack, city officials informed the shopping mall owners. On Thursday, Bratton stood before news cameras at the Grove and asked Angelinos for help. "We need the eyes, the ears" of the citizenry, he stressed. He reminded people that bin Laden had recently issued another taped warning promising more violence.

Then-Mayor James Hahn said that people should go about their daily business but should be alert to the out-of-place: "a truck that seems to be parked somewhere for too long, or someone ... wearing bulky clothing on a hot day."

Police stepped up patrols around the two malls and across West Los Angeles. News helicopters whirled above the supposed targets. But by Friday, everything seemed back to normal. Shoppers trolled the window fronts, while L.A. traffic flowed as usual. Nearby, a movie crew erected the set for a day's shooting.

"This just happens all the time.... This is no different than any anonymous bomb threat that gets called in," Gene Thompson, the head of corporate security for the Westside Pavilion's owners, told a reporter for the Los Angeles Times. "Life goes on," said Tom Miles, the Grove's general manager.

In fact, life did go on, unimpeded by a bomb or any other shopping disruptions. On the day Mohamed had warned that his Qaeda friends would strike, federal authorities apprehended him as he crossed the U.S.-Canadian border into Montana.

Mohamed confessed that he'd made the whole thing up. There was no bomb. Those supposed Qaeda operatives were actually friends of his girlfriend. Mohamed had called Homeland Security to get back at her for stealing his paycheck from a Toronto bank where they used to work together. He had asked the three men to help him get the money back, but they had refused. Mohamed said he picked the two malls because he knew the area, having once visited the UCLA Law Library.

Life went on. But the city never really slept.

The Listening Post

Mohamed's unusually specific threat inspired a rare frenzy of activity. To be sure, Los Angeles doesn't ramp up to full alert for every lead that comes over the transom. That would be impossible, because, by officials' count, they have received more than 4,000 tips, leads, and other vague insinuations about possible terrorist attacks in the greater L.A. area in just the past three years.

Most of them turn out to be bogus. Anonymous callers see "Arabs" taking photographs of bridges. Electrical plant owners notice a van driving slowly by their security gates. Some concerned citizen sees "Middle Eastern-looking" men loading fertilizer onto a truck in her neighbor's driveway. Authorities have documented literally thousands of such leads in cities across the country, and few of them come to anything. The camera-toting terrorists are actually tourists; the driver of the van was lost; the men loading fertilizer were Mexican gardeners.

Occasionally, of course, the leads are more substantial and are worth investigating. Some are sourced to U.S. intelligence agencies or to the Homeland Security Department, which is nominally tasked with keeping states and localities abreast of threats to their areas. But the river of leads pouring into L.A. contains mostly unofficial reports from locals, and they run the gamut from the useful to the useless. At such a dizzying pace -- 4,000 in three years -- how could anyone keep up?

Today, in L.A. and in more than four dozen other cities across the country, state and local officials, using mostly federal grant money, have built a network of lead-vetting teams to do just that. They call them "fusion centers," and Bush administration officials, along with powerful members of Congress in both parties, believe that they are one of the best ways to prevent the next attack.

Usually run in partnership with federal agencies, such as the FBI and Homeland Security, fusion centers employ teams of terrorism analysts, many of whom are self-educated. They take every lead, hold it up to the light, and ask, Could this be connected to terrorism? To answer that question, the leads are examined using a wealth of other information, including analysts' own expertise, local police reports, statewide crime databases, and sometimes intelligence from the federal level. "Fused" together, all that analysis tells police and security agencies whether they should rest easy or call out the guard.

In L.A., a city that makes its living spinning fact into fiction -- the buttoned-down terrorism analyst has morphed into Jack Bauer, terrorist-fighting force of nature on "24" -- you might expect the fusion center to pulse at the city's heart. Wrong. To get to the lead-filtering complex -- called the Joint Regional Intelligence Center, or "Jay-Rick" -- you have to leave the beauty bars of the Sunset Strip and the curvy overlooks of the Hollywood Hills. Go south about 10 miles, take the 105 freeway east until it ends, then head down an industrial road, past a taco stand, a carwash, and a movie theater.

There, amid a warren of stout office buildings in the industrial L.A. suburb of Norwalk, is a sand-colored 525,000-square-foot edifice. JRIC is on the seventh floor, next to the corporate headquarters of Bally Total Fitness. This is homeland security's next frontier.

JRIC is L.A.'s terrorism "listening post," says Stephen Tidwell, the assistant director in charge of the FBI's Los Angeles field office. Tidwell, LAPD's Bratton, and L.A. County Sheriff Leroy Baca are among JRIC's most enthusiastic supporters. The three men are friends and self-professed true believers in chasing terrorists down at the local level. Their comradeship has caught Washington's attention. When JRIC opened last summer, Homeland Security Secretary Michael Chertoff came out for the ribbon-cutting. Federal officials call JRIC a "model fusion center," one for others to emulate.

JRIC's roster is a bureaucratic potpourri. It contains FBI agents, LAPD officers, L.A. County sheriff's deputies, public health experts, contract analysts who study radical Islam, a liaison from the Homeland Security Department, and officers detailed from other local law enforcement agencies across the Los Angeles region.

The "region" is a seven-county, 44,000-square-mile sprawl that, historically, has never much cared for jurisdictional spats. As any L.A. cop, firefighter, or paramedic will attest, during an earthquake, fire, or a flood -- all of which the region suffers every year -- you don't much care what color uniform the person coming to your rescue wears. The region adheres to a pact of "mutual aid," which all but eliminates turf tensions. Cooperatively fighting terrorism fits right in with that culture.

Dead Ends

At 9 a.m. every Monday through Friday, the JRIC staff sits down and sorts through the daily cache of leads, to make sure that they're vetted and that all agencies are on the same page. If there's a report that terrorists are spiking the water supply with biotoxins, JRIC will ask a microbiologist to take a look. How credible is the threat? Could that toxin actually live in water? How many people might be affected?

If there's a call about suspicious activity in Long Beach, the appropriate JRIC officer will run it past his sources. Some have likened the hunt for terrorists to looking for a needle in a haystack. But JRIC members go through haystacks, straw by straw, asking, "Could this be a needle?"

So far, none of the leads has revealed an active terrorist conspiracy in the L.A. region. "Ninety-nine-point-nine percent are false," says Bob Galarneau, a sheriff's department lieutenant and a JRIC program manager. "But we still investigate.... Every one is followed up on."

Considering the gravity of the potential threat, one might expect daily life at JRIC to resemble a scene out of a Tom Clancy movie. Wrong again. There are trappings of adventure -- wall-mounted televisions tuned to cable news channels, including Al Jazeera; table tops strewn with copies of Counterterrorism magazine. Beyond that, JRIC looks like just another banal workplace. If this were a TV show, it would be "24" meets "The Office."

But that is what homeland security looks like. A lot of waiting, a lot of wading through noise, and then life goes on, in all its reassuring regularity.

"I wish it were like '24,'" says Kristen von KleinSmid, the FBI supervisory special agent in charge of the threat squad, a JRIC team that can decide to open investigations on particular leads. "I can't redirect satellites. I'm sure there's someone who can. But I just can't make a phone call and have it done."

The threat squad, also called CT-6, worked the 2004 bomb threat on the shopping malls. Today it comprises about 20 analysts and officers from a variety of federal and local agencies. The squad is permanently attached to the fusion center and has "right of first refusal" on all incoming leads. Von KleinSmid says that it handles, on average, about 25 tips a week. "You have to be very organized," she says. "It's hard to keep the leads straight."

As leads go, CT-6 has a low bar. "The only ones we won't work are if we know the person who wrote this complaint is completely crazy," von KleinSmid says -- if the person rambles, or if "it's just some woman saying she saw two Middle Eastern men taking photos of a building." Those tips have no "lead value," she continues, meaning they're dead ends. It's "common," von KleinSmid says, for people to anonymously file complaints about their neighbors.

"Most of the leads are dead ends," Sheriff Baca says. "It's well-meaning information from people who don't know exactly what they're talking about."

Distractions and hoaxes come with the job, but officials are also trying to dissuade future cranks. In one case, officials say, the threat squad responded to a complaint from a military contractor who claimed that his Filipino girlfriend had stolen plans for a shoulder-fired missile and intended to sell them to Abu Sayyaf, a terrorist network based in the Philippines.

CT-6 investigated, and officers tracked down the woman, who, it turned out, was in the country illegally. She and her boyfriend had recently fought, and to get back at her, he reported her as a terrorist supporter, hoping she would be deported. The U.S. attorney's office is prosecuting him for making false claims, officials say.

"About one out of every 100 leads, there's something good that comes out of that, where really useful information is obtained," von KleinSmid says. Agents "know that a lot of the stuff they're working isn't going to go anywhere."

Which makes one wonder: If nothing will come of most -- nearly all -- of the leads that have poured into L.A. over the years, why bother chasing down each one? Because, officials say, chasing ghosts and possible hoaxes is the best chance they have of finding a bona fide threat. One time out of thousands, the lead might bear fruit. The terrorist hunters might get lucky. In fact, they say, it has already happened.

Terror Comes to Town

In the summer of 2005, police officers in Torrance, south of downtown L.A., investigated an armed robbery at a gas station. It was the latest in a string of heists, and each time the bandits had fled without a trace. But this time one of them dropped his cellphone, giving police a rare lead.

Officers traced the phone to Gregory Vernon Patterson, a 21-year-old local man with no criminal record. They placed him under surveillance. According to a criminal complaint, on the evening of July 5, Patterson and Levar Haney Washington, who, later investigations showed, was an L.A. gang member, drove to a gas station in Fullerton, east of Torrance in Orange County.

Washington, dressed in a dark hooded sweatshirt and carrying a shotgun, robbed the clerk, according to the complaint. Police arrested the two men and then searched Washington's apartment in South Los Angeles.

That search, authorities say, ultimately enabled them to disrupt a major terrorist plot aimed at local military recruiting stations, the Israeli consulate, and other targets across L.A. Torrance police officers found documents outlining an imminent attack, possibly timed for the anniversary of September 11, as well as knives, bulletproof vests, and "jihadist" material that wasn't available from the usual sources on the Internet, investigators said.

Almost immediately, one of the officers involved in the search, who had been trained to spot terrorist warning signs in the course of his normal duties, called local counter-terrorism officials. The entire L.A. terrorist hunting apparatus was on alert again.

More than 200 federal and local investigators worked the case, pursuing leads, tracking evidence, and grilling Washington and Patterson. "Virtually every agency in the area jumped on the hunt," says Tidwell, the FBI assistant director in charge. "It was textbook."

According to an FBI affidavit, Washington told investigators that he led an "Islamic council" that was planning a jihad in the United States, "to respond to the oppression of Muslims in Iraq and Afghanistan by the U.S. government."

Washington said that his group had scouted targets, to determine whether they should use a bomb or "rifles and inflict as many casualties as possible." Patterson, the affidavit said, had purchased an AR-15 assault rifle and was only days from picking it up at a sporting goods store. Investigators charged that the men committed the gas-station robberies to pay for their citywide offensive. Planning for the attacks, the FBI said that Washington told them, was nearly complete.

Officials later charged that Washington and Patterson acted at the behest of Kevin Lamar James, a Muslim convert doing time in Folsom prison since 1996 for armed robbery in gang-related crimes. Police said that James had founded a radical Islamic cell called Jamiyyat Ul Islam Is Saheeh, or JIS -- "the Association of True Islam," -- and, from inside Folsom's walls, directed a plot to conduct a violent jihad.

Federal officials had warned about the spread of Islamic radicalism in prisons. Local authorities said that Washington and Patterson had met at an area mosque, and had become radicalized by James's vision. On August 31, 2005, a federal grand jury indicted the three men, along with a Pakistani national, on charges of plotting the L.A. attacks. A trial is scheduled for August.

Ask any of the terrorist hunters in L.A. to cite a plot they've disrupted as a result of their post-9/11 vigilance, and they'll immediately point to JIS. To this day, the FBI calls the incident the closest thing to an "operational" terrorist plot since the September 11 attacks.

Miller, the former LAPD counter-terrorism official who is now the FBI's chief spokesman, has called JIS a "homegrown" terrorist cell. He said that it "is the best example of how the threat now is as much out there on our streets, among some disaffected Americans, as it is teams of sleeper cells who are sent from faraway training camps."

Before 9/11, officials in L.A. agree, the police officers who searched Washington's apartment might have been alarmed by the weaponry and the jihadist literature but wouldn't have known to immediately call the terrorism task force. The JIS case is proof, they say, that the relentless pursuit of leads, the hyper-alertness, the constant probing of every piece of evidence for a terrorist link, actually prevents attacks.

Many terrorism experts, however, aren't so sure. If the evidence is correct, then Washington and Patterson were clearly capable of violence, and very well may have attacked targets in the city. But is it accurate to call them domestic terrorists, members of a homegrown cell?

The case demands comparisons to bona fide homegrown extremists, such as those involved in the London subway and bus bombings in 2005, which killed 52 people. Is JIS the same? Are L.A. terrorist hunters, so intent on turning over every rock, seeing threats where they don't exist?

Seeing Things

Since 9/11, the FBI and local law enforcement have produced few cases of legitimate terrorism, critics say. Miller said recently that the bureau "has had a part in stopping five terrorist plots in progress" in the past year and a half. Among those, he counts the foiled attempt last year to bomb commercial airliners in midflight on their way from England to the United States.

But Miller also includes a plot to blow up a New York City commuter rail line, which investigators have said involved suspects who were never in the United States; the arrest of members of a suspected terrorist cell in Canada who aimed to blow up government buildings there; the arrest of two men in Georgia who the FBI says were linked to the Canadian group and who also discussed attacks on oil refineries and military bases; and the arrest of members of a suspected terrorist group in Florida called "the Seas of David" who officials say wanted to blow up the Sears Tower in Chicago.

Terrorism experts hotly debate whether those four cases and others, including JIS in Los Angeles, can or should be called examples of domestic terrorist cells. Tom Kean, the former co-chairman of the 9/11 commission, has dismissed the comparison of JIS to Al Qaeda.

JIS, he said, is part of a long history of anarchists and disaffected groups that have wanted to harm the government. Al Qaeda, on the other hand, is a worldwide organization that has declared its intention to harm Americans and has the personnel and financial capabilities to do it, Kean said. "That is the enemy," he told the PBS series "Frontlin" last year. "And that is who we're fighting, and we've got to always keep our focus on that."

Amy Zegart, an associate professor of public policy at UCLA and a leading national authority on counter-terrorism, says that officials are too quick to label as terrorists groups that express some outrage at the government. "When you parade things that clearly aren't at the level of 9/11 as successes, you undermine the FBI's credibility with the public," she says.

Zegart is a prominent FBI skeptic. After she wrote a scathing op-ed in the Los Angeles Times last year in which she said that the FBI was "still stupid" about terrorism, Tidwell called her to his office for a dressing down.

Still, after examining the city's terrorist-hunting efforts, including JRIC, Zegart says that there's some reason to take heart. "They have a very forward-thinking approach," she said.

JRIC, for instance, built upon the work of another outfit, the Terrorism Early Warning Group, created in 1996 by the L.A. County Sheriff's Department. Experts have lauded the group and the city's leaders for taking local responsibility for terrorism prevention seriously years before national agencies made it a priority.

But there's a flip side to the city's ceaseless pursuit, Zegart says.

"What worries me about the follow-every-lead approach is that it is done in a strategic void. I think this is an endemic problem that is true across U.S. intelligence. We're ramping up ... saying, 'Let's look at today's threat list,' " Zegart says. "The current news cycle and the terrorist threat are putting more pressure on people to focus on the here and now."

As a result, counter-terrorism officials might miss the bigger, longer-range picture about terrorism trends, and overlook new threats that could be emerging below the daily radar sweep, she fears.

Zegart says she believes that the threat of domestic terrorism is real. Nevertheless, she's unconvinced that other cities should try to emulate L.A.'s approach. "In many ways, we've been the model in terms of prevention and response," she says. "I always say that the good news and the bad news is, L.A. leads the country in counter-terrorism."

Help From Above?

In Washington, many intelligence officials want to push the running of homeland security as far away from the nation's capital as possible. In November 2006, President Bush approved a set of guidelines to govern how federal agencies share terrorism information with states, localities, tribal governments, and the private sector, which owns and operates 80 percent of the nation's infrastructure.

The guidelines were submitted to the White House by the Office of the Director of National Intelligence, but they were developed by state and local officials, including many of those running fusion centers like JRIC.

The guidelines call for a "federalist, or shared-responsibility, approach to information-sharing." The federal government will "promote ... a network of fusion centers" but won't control it. The FBI's Joint Terrorism Task Force and the Homeland Security Department, which is legally the point of contact for states and localities, are cast as partners, not directors.

"Fusion centers cannot carry out their efforts in a vacuum. They rely on intelligence and other information from federal entities so that they can develop intelligence priorities," says John Cohen, a spokesman for Thomas McNamara, the former U.S. ambassador-at-large for counter-terrorism and the man who heads the information-sharing environment office that submitted the guidelines to the president.

"They also need to be able to view local events within the context of national, even global, terrorist patterns," Cohen says. "State and local officials need this federal information so that they can protect their local communities, and they are telling us that they still are not getting the information they need from the federal government. We are listening and are working aggressively with these states and localities, as well as the intelligence community, Homeland Security, the Defense Department, and the FBI to fix it."

Today, some threat reporting comes from the Homeland Security Department and some from the FBI. Those entities have sparred over which should be the primary conduit for states and localities, and who should decide how much they get to know.

State and local officials, meanwhile, complain that threat reporting is inconsistent and that much of what they know comes from their own residents. Even in Los Angeles, where relations have remained congenial, Chief Bratton says that the federal agencies need to settle their disputes and to give the locals more information.

"How do we get the feds to make nice with each other -- that's still the big issue," Bratton says. From his perspective, local officials have already made a sizable investment in homeland-security policy. "I easily spend 40 percent of my time on terrorism matters," Bratton says, including talking to journalists and members of Congress. Of the federal agencies whose intelligence Bratton wants, he says, "Locals have to be accepted into what was a private club.... We're the new kids knocking on the door."

"We're Gonna Get Hit"

Ask Stephen Tidwell where the FBI and his friends in L.A. are looking for the next terrorist threat, and you'll get no specifics. "We're looking everywhere.... We spend hours upon hours," he says. "Got people not sleeping very much. People walking around like zombies.... We can't have enough eyes looking."

Considering his obsession with standing vigil over L.A., it's odd that Tidwell's office on the 11th floor of the Federal Building looks not to the south and east, over the city's concrete expanse, but to the northwest, taking in the verdant Santa Monica Mountains, which run east to west, to the Pacific Ocean. It's a vivid reminder that Los Angeles sits in a bowl, surrounded by natural forces that also conspire to wipe the city off the map.

Immediately outside Tidwell's panoramic window, the Los Angeles National Cemetery spreads in a gradual upward slope toward the mountain range. Dedicated in 1889, the 114-acre garden of stone holds the remains of more than 84,000 veterans of four American wars, from the Spanish-American to the Korean.

"We game out in our heads multiple suicide bombers or multiple IED attacks," Tidwell says, referring to Iraqi insurgents' weapon of choice, the improvised explosive device. He pauses and glances out the window. What really scares him, Tidwell says, is what happens after the attack. "Eighteen million people, trying to self-evacuate out of here, will collapse this place."

"We're gonna get hit here," Tidwell says. "When it does happen, how are we going to hunt them? How are we going to find them?" By his calculus, every set of eyes, every listening post, every JRIC is one more barrier that terrorists have to overcome. The best chance to save L.A. is to make their job harder. "We're building fences," Tidwell says. "We want enough fences between us and them."

Published in National Journal.

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Full Article

Intelligence Designs

by Shane Harris
Friday, December 02, 2005



In the spring of 2000, a year and a half before the 9/11 attacks, Erik Kleinsmith made a decision that history may judge as a colossal mistake.

Then a 35-year-old Army major assigned to a little-known intelligence organization at Fort Belvoir in Virginia, Kleinsmith had compiled an enormous cache of information -- most of it electronically stored -- about the Al Qaeda terrorist network. It described the group's presence in countries around the world, including the United States.

It was of great interest to military planners eager to strike the terrorists' weak spots. And it may have contained the names of some of the 9/11 hijackers, including the ringleader, Mohamed Atta.

The intelligence data totaled 2.5 terabytes, equal to about 12 percent of all printed pages held by the Library of Congress. Neither the FBI nor the CIA had ever seen the information. And that spring, Kleinsmith destroyed every bit of it.

Why did he do that? And how did a midlevel officer in a minor intelligence outfit obtain that information in the first place? Those questions lie behind the latest phase of a simmering controversy in Washington: whether something could have been done to prevent the terror attacks of September 11.

Kleinsmith worked for an Army project code-named "Able Danger." This past summer, a number of former project members -- none of whom had worked for Kleinsmith -- came forward to say that Able Danger had identified Atta and linked him to a convicted terrorist who is still serving time in federal prison for his role in the 1993 bombing of the World Trade Center.

The Able Danger members recalled charts showing names and pictures of suspects, and their links to each other. Rep. Curt Weldon, an outspoken Pennsylvania Republican and longtime supporter of intelligence reform, has demanded to know why the charts were never shared with an agency positioned to halt the attacks.

He also points out that the 9/11 commission failed to include any mention of Able Danger in its final report, which is regarded as an authoritative history of the attacks. The Pentagon searched more than 80,000 documents and found no chart with the name "Mohamed Atta." Weldon has accused the government of a cover-up and called for a criminal investigation.

But Able Danger, for all its intrigue, is just one piece of the unusual intelligence practices that Kleinsmith was engaged in, years before 9/11. In the late 1990s, Kleinsmith was the chief of intelligence for the Army's Land Information Warfare Activity, a support unit assigned to the Intelligence and Security Command. LIWA had broad authority to assist the Army and all military commands in conducting "information operations," a broad discipline that includes information warfare, public deception in combat, and intelligence analysis.

The Army's hub in this effort was the aptly named Information Dominance Center, based at Fort Belvoir. Since the late 1990s, the IDC has been home to some of the most innovative, unconventional, and controversial minds in the intelligence business. In its futuristic-style building -- its interior spaces designed by a Hollywood set artist to mimic the bridge of the starship Enterprise, complete with a large captain's chair in the center of the main room -- the IDC covered a range of topics.

Analysts tracked computer hackers who were targeting military networks, watched for potential avenues of Chinese government espionage, and charted the working relationships among foreign terrorists. To do this, the IDC relied heavily on a novel technique called "data mining."

On a recent afternoon at a coffee shop in Springfield, Va., not far from the IDC, Kleinsmith explained how data mining works. Putting pen to paper, Kleinsmith sketched clumps of circles, then surrounded some with concentric, wavy perimeters, until he'd drawn a crude version of a topographical map.

In data mining, he explained, a powerful search engine is used to "harvest" tens of thousands of Web pages that contain key words of interest -- "Al Qaeda" and "bin Laden," for instance. Another tool, called a data visualization program, then creates a three-dimensional map showing which words appear most often and how they relate.

The features and contours of the map tell an analyst about the underlying information's significance, Kleinsmith said. High peaks represent words that appear frequently. Peaks close together signal words that share some context. The analysts can click on a peak and pull up the information that helped create it. With data mining, analysts don't just read information, they "see" it. Kleinsmith called this kind of data mining "intelligence on steroids," and it was the IDC's hallmark.

Data mining works best with large sets of information, so it's particularly useful for Internet searches. At the IDC, Kleinsmith and three colleagues mapped Al Qaeda for Able Danger by mining open sources and fusing their results with classified government intelligence. But in addition to the mass of information they returned on suspected terrorists, they collected thousands of names of U.S. citizens.

People's names and personal information litter the Internet. Data harvesting, by its very nature, is indiscriminate and sweeping. Unavoidably, along with "Osama Bin Laden," an often-mentioned name like "Bill Clinton" will be harvested. That says a lot about the power, and the limits, of data mining, and why Kleinsmith destroyed what he had; the military is not supposed to be gathering information on U.S. citizens.

A First Test

From its earliest days, the IDC was a haven for renegades who wanted to use technology to step outside traditional intelligence-gathering, which relies heavily on classified sources and labor-intensive analysis. The center had high-level champions, including Lt. Gen. Keith Alexander, who from 2000 to 2003 directed the Intelligence and Security Command, the IDC's parent. Alexander now heads the National Security Agency, which operates the most-sophisticated electronic eavesdropping devices in the world.

Alexander also worked closely with James Heath, who headed the IDC in the late 1990s and whom former employees recall as a mix of driven genius and mad scientist. According to one such former employee of the center, Heath saw the IDC as "an experimentation table" on which to try out all kinds of new tools, depending on what the Army wanted at the time. Analysts and technicians worked together, "speaking the same language" and building useful data-mining tools. This dynamic didn't exist in other intelligence agencies, the former employee noted.

The IDC earned a reputation for innovation, but it also stepped over the bounds of traditional military intelligence. One of its first outside fans was Curt Weldon. Rep. Weldon had been advocating a "national collaborative center" to fuse law enforcement and intelligence units, and their information, from across the government.

In 1997, as the U.S. intervened in the Balkan War, senior Russian officials wanted Weldon (who had had good and long-standing contacts with the Russians) to meet in Belgrade with Yugoslavia's then-president, Slobodan Milosevic, to negotiate a peace settlement.

As Weldon stated on the House floor in 2002, the Russians offered to arrange a meeting between Weldon and Dragomir Karic, a rich Serb closely tied to Milosevic. Perhaps, the Russians said, Karic could act as a go-between with the Serbian president. But according to Weldon, State Department officials said they'd never heard of Karic, and thought the meeting was a ploy to manipulate the congressman.

Weldon met with Karic on neutral territory, in Vienna. But before leaving the States, he asked then-CIA Director George Tenet for background on the Serb. Tenet "called me back the next day and gave me two or three sentences ... and said they thought he was tied in with the corruption in Russia, but did not know much else about him," Weldon said.

Unsatisfied, Weldon contacted his "friends at the Information Dominance Center," which he considered a model for his own intelligence collaboration venture. The IDC "came back to me with eight pages about this man," who the analysts said "was very close to Milosevic personally." Former IDC employees confirmed that they provided Weldon with detailed information on Karic.

The talks with Karic bore no fruit. But when Weldon returned to Washington, he said, the FBI and CIA asked to debrief him on what he knew about Karic. Weldon delivered a thorough dossier.

"I told them that there were four Karic brothers; that they were the owners of the largest banking system in the former Yugoslavia; that they employed some 60,000 people; that their bank had tried to finance the sale of an SA-10 [missile system] from Russia to Milosevic; that their bank had been involved in a $4 billion German bond scam; that one of the brothers had financed Milosevic's election; that the house Milosevic lived in was really their house; that, in fact, the Karic brothers' wives were best of friends with Milosevic's wife; and that they were the closest people to this leader."

Surprised to hear such details on a man they barely knew of, the agents presumed Weldon got the information from the Russians. When he told them that the facts came from the Army's Information Dominance Center, Weldon recalls, the agents replied, "What ... is the Information Dominance Center?"

The event convinced Weldon that the CIA and the FBI didn't "get it," and that the IDC was the wave of the future. He became its biggest proponent in Congress, and sang its praises to the highest levels of the Defense Department.

After Weldon submitted the Karic dossier, word of the IDC's work spread outside the Army realm, Kleinsmith said. He had put just two analysts on the Weldon project, and they had taken only a day to generate the Karic profile. It "shocked me that we were outdoing these other organizations," namely the CIA, Kleinsmith said.

The China Problem

Intrigued with the Karic work, senior Pentagon officials decided to see if the tiny band of analysts could prove their mettle on a bigger problem. Officials were concerned about the possible leakage of U.S. military technology abroad, through unauthorized exports or through espionage. In the spring of 1999, the Pentagon "initiated a onetime project, to use data-correlation tools to decide if we could use those methods as a superior approach for counterintelligence," said John Hamre, the deputy Defense secretary at the time. "It was an experiment."

The people involved said the experiment looked specifically at technology transfers to China, whose military posed the gravest post-Cold War threat to the United States. Kleinsmith says the particular technology the IDC researched was arbitrary. "I think we flipped a coin" to decide. The point was to show the Pentagon that data mining could identify front companies, potential leaks of technology, and other vulnerabilities. "What we found was absolutely enormous," Kleinsmith said.

Former IDC employees and others familiar with the work say the China research exposed a variety of avenues through which military technology designs could end up in Chinese government hands. The IDC created a diagram showing how organizations and people in the United States were connected to the Chinese. Hamre had visited the center, and according to Weldon, reported back, "It is amazing what they are doing there."

The experiment "went well," the former IDC employee said. "Unfortunately, it went too well." During construction of those link diagrams, the names of a number of U.S. citizens popped up, including some very prominent figures. Condoleezza Rice, then the provost at Stanford University, appeared in one of the harvests, the by-product of a presumably innocuous connection between other subjects and the university, which hosts notable Chinese scholars.

William Cohen, then the secretary of Defense, also appeared. As one former senior Defense official explained, the IDC's results "raised eyebrows," and leaders in the Pentagon grew nervous about the political implications of turning up such high-profile names, or those of any American citizens who were not the subject of a legally authorized intelligence investigation. Rumors still abound about other notable figures caught up in the IDC's harvest. "I heard they turned up Hillary Clinton," the official said. The experiment was not continued.

"We determined that there were significant methodological problems," Hamre said of the IDC's techniques. Data-correlation analyses on raw information "produce impossibly large numbers of potential correlations. The numbers are too large to be operationally helpful."

But it appears not everyone in the military establishment agreed. Over the next several months, Kleinsmith estimated he gave more than 200 briefings on the IDC to members of Congress, generals, and senior government officials. "I could tell in three to four minutes if someone 'got it,' " Kleinsmith said. Hamre got it, he noted. And so, it seems, did officials with the Army's Special Operations Command, who, despite the unease over the China experiment, came to the IDC asking for information about a then-shadowy organization called Al Qaeda.

Able Danger

In the fall of 1999, top officials in the Special Operations Command were looking for a way to take the nascent fight on terrorism to its source. Al Qaeda had recently destroyed the U.S. embassies in Kenya and Tanzania. Special Operations' top officers, including the commander, Gen. Peter Schoomaker, "wanted the mission of 'putting boots on the ground' to get at [Osama] bin Laden and Al Qaeda," according to the 9/11 commission report.

But the military leadership believed that without concrete intelligence about Al Qaeda, a strike on the group was doomed to fail. President Clinton told the 9/11 commission, "If we had really good intelligence about ... where [bin Laden] was, I would have done it." Plans were already under way to attack Al Qaeda using AC-130 gunships. What was lacking was actionable intelligence to tell the military whom to hit and where.

Kleinsmith said that a pair of Special Operations officials visited him at the IDC in December 1999. At the instruction of the Joint Chiefs of Staff, the officials wanted as much intelligence on Al Qaeda and other transnational terrorists that could be mustered. They called the project Able Danger. (The word "able" has been commonly used for military exercises for more than two decades.)

The officials asked Kleinsmith about the technologies the IDC was using. "They didn't talk specifics," Kleinsmith said, but it was clear that "we had something they could really use." Later, he offered to "run some data" and produce a preliminary analysis. Within 90 minutes, Kleinsmith said, his analysts found evidence that Al Qaeda had a "worldwide footprint," including "a surprising presence in the U.S. That's when we started losing sleep."

In January 2000, Special Operations gave Kleinsmith and his team the green light to find as much information as they could. "They told us, 'Start with the words "Al Qaeda," and go,' " he said. A month later, the IDC conducted the first Able Danger harvest. The initial results, while impressive, were hardly what Special Operations forces needed to put boots on the ground.

The harvest "was a mile wide and an inch deep," Kleinsmith said. It included more than two terabytes of information, too vast an amount to provide specific targets. The IDC analysts could see the broad outlines of Al Qaeda, particularly its transformation from an idealistic movement into an operational network that could possibly inflict damage. Names, locations, and capabilities, and even the group's financial sources, were "coming together," Kleinsmith said. But the data set was still too big.

That didn't stop the analysts from trying to pare the information down. The former IDC employee said analysts played what they called "the Kevin Bacon game," referring to the popular notion that the prolific film actor can be linked to any other actor through no more than five people. (The game is based on the "six degrees of separation" theory that anyone on Earth can be linked to anyone else through five intermediaries.)

"Let's say you had a bad guy at each end of a string," the employee said. The analysts looked for the people between them, and then those people's ties to each other and to still others, asking whether any of the links came ba