FBI heeds 9/11 panel directive in terror probes, but not without criticism

WASHINGTON — Five separate times during a short car ride with the two men he thought were his confederates, James Medina left little doubt about his resolve to bomb a south Florida synagogue as a bloody expression of his support for the Islamic State.

“You know,’’ the 40-year-old Hollywood, Fla., man allegedly said earlier this year. “It’s my call of duty … And whatever happens, it’s for the glory of Allah!’’

The subsequent criminal complaint outlined a now-familiar plot line in which government informant and undercover agent infiltrate an alleged criminal network and win the confidence of a suspected terrorist whose journey now ends more often than not in shackles.

Sting operations always have been a staple of FBI criminal investigations, dating to the federal government’s earliest infiltration of the mafia and other organized crime networks. But its broad and controversial application in terror inquiries is the manifestation of a daunting directive issued in the aftermath of 9/11 attacks and a reflection of the evolving threat.

Pondering the very existence of the FBI in the post-2001 world, the 9/11 Commission, created by Congress in the aftermath of the catastrophic assaults, urged the bureau to find its way into the then-unfamiliar culture of a new enemy embracing radical Islam that continues to represent an unparalleled threat.

“The FBI needs to be able to direct its thousands of agents and other employees to collect intelligence in America’s cities and towns — interviewing informants, conducting surveillance and searches, tracking individuals,’’ the panel recommended in its 2004 report. “The FBI’s job in the streets of the United States would thus be a domestic equivalent, operating under the U.S. Constitution and quite different laws and rules, to the job of the CIA’s operations officers abroad.’’

More than 12 years after the commission's highly critical report was issued, panel chairman Tom Kean said the aggressive use of informants in a steady stream of terror cases since — from the FBI's early post-9/11 inquiries involving al-Qaeda operatives to the dozens of more recent stings involving U.S. recruits to the cause of the Islamic State, also known as ISIS or ISIL — represent the bureau's continuing transformation to the intelligence-driven agency envisioned by the commission.

"The bureau was always good at collecting information,'' Kean said. "Our push was that you've got to get the people who understand the information and act on it.''

While the basic tactic — the deployment of undercover agents and informants — has been a part of the FBI's DNA almost since the bureau's inception a century ago, the challenge posed by an evolving adversary, current and former federal officials said, required a dramatic shift in resources and thinking that more than a decade later still is rippling throughout the bureau's 56 field divisions and offices abroad.

Indeed, FBI Director James Comey has frequently referred in recent months to the volume of potential terror cases — there are about 1,000 open investigations into potential terror operatives and violent extremists — that now occupy every field office in the country.  During the next five years at least, Comey said Thursday during a panel discussion, even more extensive use of "sources and undercovers'' will be required to meet investigative challenges posed by digital encryption and the "hundreds of hardened fighters'' who likely will stream from the "crush of the (ISIL) caliphate'' in Syria.

For defense lawyers and civil rights advocates who have been closely monitoring the FBI's counterterrorism activities, the aggressive tactics have raised separate concerns about the possible entrapment of suspects whose willingness or ability to carry out alleged plots may not have been possible without the FBI's involvement.

In the pending appeal of a Mohamed Osman Mohamud's conviction in a 2010 plot to bomb a Portland, Ore., Christmas tree lighting ceremony, defense attorneys directly called into question the government's tactics.

"This case presents fundamental questions about the relationship between citizens and their government during times of national alarm,'' Mohamud's attorneys Stephen Sady and Steven Wax asserted in the appeal of a case in which agents posed as jihadists and helped the suspect prepare a "Sheik Osama-style" video in which Mohamud, then 19, allegedly recites a rambling statement taking responsibility for the planned attack.

Bureau at a crossroads

The transformation of the FBI that began shortly after 9/11 was not only required to meet the new terror threat but necessary for the agency's very survival.

John Pistole, a former FBI deputy director who helped oversee critical aspects of the bureau's shift from an after-the-fact investigative agency to an agency capable of thwarting future attacks, described the anxious weeks and months after 9/11 in which agents sought to head off new threats while then-director Robert Mueller fought to keep the bureau from being dissembled by members of Congress into something resembling the British MI5 intelligence service.

"There was a view that the bureau had failed significantly when it came to terrorism,'' said Pistole, who went on to head the Transportation Security Administration, an arm of the Department of Homeland Security created following 9/11.

What followed, Pistole said, was an unprecedented push inside the agency to embrace the idea of shared analysis of the information streaming in, while agents were deployed to communities where they rarely ventured, including Kurdish enclaves in Nashville and Somali sections of Minneapolis.

Meanwhile, the number of Joint Terrorism Task Forces — local units that draw members from myriad state, local and federal law enforcement agencies — grew dramatically from about two dozen at the time of 9/11 to now more than 100. The aim was to form counter-terrorism cells in communities across the country in an attempt to identify and thwart potential threats before they developed.

"It was all about putting trip wires in place that could recognize things like operational planning and financing,'' Pistole said, adding that the use of informants and undercover agents naturally followed.

Michael Steinbach, chief of the FBI's National Security Branch, said the extensive use of the Internet for self-radicalization and the explosion of social media platforms where ISIL has identified U.S. recruits to join the fight in Syria or lash out domestically has required the bureau to adapt to the "changing threat.''

”While the FBI is obligated to use the "least intrusive methods'' available, Steinbach said those efforts aren't always enough.

"Often times, the most effective way to mitigate the threat is to make use of an informant or undercover,'' Steinbach said. "As the threat has changed with encryption or digital (communications), a lot of times the starting point is an anonymous online (address). It's much more difficult.''

Yet sometimes, even informants are unable to divine the ultimate intentions of their investigative subjects.

Following the massacre earlier this year at an Orlando, Fla., nightclub, the FBI acknowledged that it had years earlier investigated provocative statements made by shooter Omar Mateen, including his claims that his family had connections to al-Qaeda and later a possible link to the first American suicide bomber to die in Syria. The multifaceted inquiry, which included the use of informants, was closed after authorities found no formal connections.

"We are going to look hard at our own work to see if there is something we should have done differently," Comey said soon after Mateen's deadly June assault. "So far, I think the honest answer is, 'I don't think so.' I don't see anything in reviewing our work that agents should have done differently ... We are looking for needles in a national haystack.''

Concerns raised about new approach

Those investigative challenges, however, have not quashed criticisms that some of the most intensive undercover operations may be netting some questionable suspects.

In federal court documents outlining the case against the suspected Florida synagogue plotter, authorities said Medina, 40, repeatedly affirmed his alleged commitment to launch an attack against the synagogue in Aventura, Fla., to coincide with Yom Kippur.

There were discussions about the use of AK-47s and an explosive device, which an undercover agent ultimately agreed to provide. Nine days before the alleged attack was to be launched, the undercover agent once again sought to gauge Medina's commitment to the plan.

"I'm pretty sure," Medina said at one point. "I think so; I believe so. I'm ready, bro!''

On the appointed day of the alleged attack, shortly after taking possession of a device that the FBI had rigged to resemble an explosive, Medina was arrested and charged with attempting to use a weapon of mass destruction.

While the case remains pending, a federal judge earlier this month ordered the government to perform a mental evaluation of the suspect after a neuropsychologist's review arranged by Medina's defense team found that he was "not competent.''

While not commenting on the pending case, Steinbach said authorities "absolutely'' take into account suspects' mental health. Yet, he said, the twisted ideology promulgated by the Islamic State and other groups has proved "very receptive'' to the disaffected, while some emotionally disturbed — the Newtown, Conn., school shooter and the gunman in the Virginia Tech massacre — have lashed out with no formal terror connection.

"We have seen that you can be mentally disturbed and carry out deadly attacks,'' Steinbach said.

USA Today


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