Break up the FBI

JOHN YOO is a former Justice Department official, a law professor at UC Berkeley and a visiting scholar at the American Enterprise Institute. He is the author of "War by Other Means."

MORE THAN five years after 9/11, the United States still has a long way to go to create an effective and efficient antiterrorism agency.

The FBI’s latest missteps are being aired this week in congressional hearings in which the Justice Department’s inspector general has vividly described the failings of the FBI process for issuing national security letters. According to his estimates, the FBI improperly issued thousands of requests — which don’t require judicial approval — for telephone logs, banking records and other personal information between 2003 and 2005.

Efforts to narrow the Patriot Act (which expanded the power to issue national security letters) are sure to follow, promising new layers of bureaucracy and judicial review. The Beltway scandal machine will demand scalps, perhaps including that of Atty. Gen. Alberto R. Gonzales, already under attack for the mishandled firings of U.S. attorneys.


But all this commotion — essentially over clerical mismanagement rather than wrongdoing — is a distraction from the real problem: The FBI has become overgrown and unwieldy.

Like a bloated corporate conglomerate, the FBI cannot execute its core missions with focus and flexibility. The FBI is rife with mismanagement. In recent years, it has lost weapons and laptop computers and has been unable to complete a $170-million computer system to manage cases.

In the financial world, markets identify companies that have become too large and should split up. Investment groups take over such companies and either streamline them or spin off units into new, smaller companies.

Federal agencies have no such creative destruction mechanism. Instead, Washington’s knee-jerk reaction to every crisis is to encrust already dysfunctional bureaucracies with more layers — witness the monstrously large Department of Homeland Security created after 9/11, or the post of director of national intelligence created after prewar intelligence on Iraq was found wanting.

It makes less and less sense for one agency, the FBI, to be grappling with Internet-savvy Al Qaeda terrorists while also dealing with drug trafficking, insider trading on Wall Street, copyright violations and industrial espionage.

The 9/11 commission in 2004 detailed the FBI’s shortcomings in understanding, much less preventing, attacks by Al Qaeda. The next year, the Silberman-Robb commission, which analyzed pre-Iraq war intelligence failings, chronicled the FBI’s ongoing difficulties in restructuring to fight terrorism.


But none of these calls for change have gone far enough. Almost all other democracies that face terrorist threats divide internal security from domestic law enforcement. Britain has MI5; France has its Direction de la Surveillance du Territoire; Israel has Shin Bet. We can learn from their experiences, dividing the FBI into a traditional law enforcement arm and a separate, independent counter-terrorism unit.

The FBI’s current organizational culture is fundamentally incompatible with foreign intelligence and with war. For instance, the FBI rates and promotes agents based on the number of cases opened and solved. This makes sense if the bureau’s sole mission is solving crimes that have already occurred — but not if the mission is gathering intelligence to prevent terrorist attacks.

The inherent inflexibility of the FBI bureaucracy conflicts with the very heart of the intelligence mission. Intelligence officers must be imaginative to intuit patterns that might signal an unconventional attack on the order of 9/11. They need to act more quickly and decisively than traditional law enforcement officers. The FBI moves slowly, managing its employees by command and control. Criminal prosecution is the FBI’s preferred tool to handle terrorism. It doesn’t think first of double agents, blackmail, bribery or misinformation — all valuable tools in combating terrorism.

The 9/11 attacks forced us to reconsider the nature of war. They should now make us rethink how we organize the government. We have a government whose basic outlines and functions have not changed significantly since the end of World War II. Instead of new limits on the Patriot Act or more layers of inefficient bureaucracy, our leaders in the executive branch and Congress could take a lesson from the financial markets and ask whether it is time for a breakup and spinoff of the FBI.