Terror Watch: At Odds

The selection of Sen. John Edwards as John Kerry's running mate has raised concerns inside the FBI and among civil-liberties groups that the North Carolina senator will use the campaign to promote his controversial proposal to create a new domestic spy agency.

For the past 18 months, Edwards has been perhaps the Senate's foremost champion of a much-debated proposal to strip the bureau of its intelligence-gathering functions and turn them over to a new domestic spy agency patterned after Britain's M.I.5.

Edwards's promotion of the idea has created friction between him and FBI Director Robert Mueller who, along with other bureau officials, has warned that such a move would spark renewed turmoil within the U.S. intelligence community that would hinder the war on terrorism. It also has stirred the fears of civil-liberties groups, who believe such an agency would inevitably end up spying on political dissidents and religious groups.

But Edwards has refused to back down--and there are signs that Kerry himself may be warm to the idea. "He thinks it's still the way to go," said Mike Briggs, Edwards's Senate press secretary on Wednesday when asked about the M.I.5 proposal.

Indeed, in an op-ed article for a North Carolina newspaper as recently as two months ago, Edwards wrote "that the FBI has failed as an intelligence agency." He also dismissed Mueller's own efforts to reform the FBI to make it more attentive to intelligence gathering, as opposed to strict law enforcement. Despite receiving numerous briefings from the FBI director on the subject, which Edwards would have received as a member of both the Senate Judiciary Committee and Senate Intelligence Committee, "I have heard nothing that gives me confidence that the proposed changes will enable the FBI to more effectively collect intelligence on the plans and intentions of terrorists," Edwards wrote in a May 2, 2004, op-ed in the Raleigh News and Observer.

Although Kerry himself has talked more vaguely about reforming intelligence in his major campaign speeches, a little noticed "Defending the American Homeland" plan on his campaign Web site seems to reach a similar conclusion as Edwards on the subject.

"Many of the examinations of 9/11 have raised serious questions about whether the FBI is the right agency to conduct domestic intelligence collection and analysis," the Kerry plan states in a section entitled "Reforming Domestic Intelligence." "America needs an independent intelligence capability that focuses explicitly on domestic intelligence." A senior Kerry campaign official said that language--taken from a fact sheet handed out after a Kerry speech to a firefighters' group in March 2003--was not intended to specifically endorse an M.I.5 over a beefed up intelligence function within the FBI. "We've been back and forth on this issue--and it's still not determined," the campaign official said.

The idea of creating a new domestic spy agency first received wide currency in the wake of the September 11 attacks and has been debated intensely by the 9/11 commission. The panel is due to make its recommendations for intelligence reform later this month. But sources inside the commission say the prospect of such a major overhaul--along with its profound implications for civil liberties--has caused many panel members to shrink from such a step and favor less sweeping recommendations to improve intelligence gathering inside the country.

Indeed, top FBI officials had until this week concluded that Mueller's own reform efforts--including a recent proposal to create a new "intelligence directorate" within the FBI--had pretty much put the matter to rest. "We're not too worried about that," said one senior bureau official about the M.I.5 proposal.

Now, however, the prospect that the Kerry-Edwards ticket might push the M.I.5 idea could swiftly change the political dynamic. Since late 2002, in speeches and on the Senate floor, Edwards has argued that the failures of the FBI to pick up the trail of the 9/11 hijackers graphically shows the bureau's fundamental deficiencies in intelligence gathering. As a law-enforcement agency, the FBI is by culture and practice focused on arresting, prosecuting and convicting criminals--not collecting fragmentary bits of intelligence about potential terrorists and then analyzing the information to make sense of it, he has said.

"Asking a law-enforcement agency to manage intelligence is like trying to jam a square peg into a round hole," Edwards said in a December 2002 speech to the Brookings Institution. "The FBI... builds cases rather than connecting dots, and it keeps information secret rather than getting it to those who can use it stop the terrorists."

Edwards's repeated pounding away on the subject early last year annoyed top FBI officials. Some privately expressed irritation, suggesting that the politically ambitious first-term senator had seized on the idea as a vehicle for his presidential campaign. At one point, Mueller appealed to Edwards to hold off introducing legislation on the subject until the FBI director could brief him about what he was doing to correct the problem. Edwards went ahead and introduced his bill anyway in February 2003--and then took Mueller up on his offer, a sequence that did not go down well among some of Mueller's deputies.

Mueller's own reform efforts have revolved around making terrorism the FBI's top priority, beefing up the bureau's own intelligence and analytic functions and bringing in fresh managers with backgrounds in the intelligence community. But bureau officials argue that creating an entirely new agency dedicated solely to spying inside the United States would only create new bureaucratic rivalries--especially because the bureau law-enforcement agents would still be needed to develop evidence for criminal prosecutions. "You can't separate criminal prosecutions, terrorism and foreign intelligence," said one top FBI manager.

Civil-liberties groups have other concerns about the Edwards plan. For decades, FBI agents who seek to develop evidence about potential domestic threats have operated under tight Justice Department guidelines; those guidelines require there be grounds to believe targets are engaged in criminal acts. A new domestic spy agency would not be so encumbered, the critics say. In an effort to insulate himself from such criticism, Edwards had proposed steps to curb potential excesses by a domestic spying agency, such as requiring approval from the Foreign Intelligence Surveillance Court for infiltrating domestic political or religious groups. But some civil-liberties advocates say such steps would be insufficient--the FISA court has historically acted as a rubber stamp, critics say--and that a domestic-intelligence agency such as Edwards has advocated would inevitably be tempted to spy on legitimate dissenters.

"Senator Edwards's proposal ignored the serious civil-liberties problems it would have caused," said Kate Martin of the Center for National Security Studies. She said she hopes the Democratic candidates will await the full report of the 9/11 commission before pushing the idea any further and "not make this a political issue."

Ironically, others say Edwards's selection could be the political kiss of death for the M.I.5 plan--at least within the Bush administration. Until recently, there had been strong indications that some White House officials, especially national-security adviser Condoleezza Rice, were leaning toward adopting the idea once the 9/11 commission comes out with their report. But now, with Edwards so strongly identified with it, it would be highly unlikely the Bush administration would be tempted to pursue such a course--if only because administration officials would then be accused of stealing from one of their rivals, said Jim Dempsey, the executive director of the Center for Democracy and Technology. "They'll never support it now," said Dempsey.

Terror Watch, written by Michael Isikoff and Mark Hosenball appears online weekly