By contrast, consider another New York City terrorism conspiracy—the so-called Herald Square bomb plot. Shahawar Matin Siraj, a twenty-two-year-old Pakistani American, struck up a friendship with a seemingly elderly and knowledgeable Islamic scholar named Dawadi at his uncle’s Islamic books and tapes shop in Brooklyn. Dawadi was an FBI informant, Osama Eldawoody, who was put on the government payroll in September 2003 to stoke Siraj’s extremist inclinations by claiming to have a degree in nuclear engineering, showing him pictures from Abu Ghraib, and bragging about his ties to “The Brotherhood,” which Eldawoody said had connections to Omar Abdel-Rahman, the Egyptian commonly known as The Blind Sheikh who is serving a life sentence for his role in the 1993 World Trade Center bombings.18 Siraj asked if Eldawoody could help him build a nuclear weapon and volunteered that he and a friend, James Elshafay, wanted to detonate a car bomb on one of New York’s bridges. “He’s a terrorist. He wants to harm the country and the people of the country. That’s what I thought immediately,” Eldawoody said in court testimony.
Siraj introduced Dawadi to Elshafay, who had drawn schematics of police stations and bridges on napkins with the hopes of plotting a terrorist attack. Elshafay’s crude drawings prompted Siraj to hatch a new plan that involved the three men, Dawadi’s supposed international connections, and an attack on New York’s Herald Square subway station. The two young men discussed how they’d grown to hate the United States for invading Iraq and torturing prisoners. In Eldawoody’s car, the three of them talked about carrying twenty- to thirty-pound backpack bombs into the Herald Square subway station and leaving them on the train platform. Their conversations were recorded by a secret camera in the car’s dashboard. From April to August 2004, the men considered targets, surveilled the subway, checked security, and drew diagrams of the station. The informant goaded them on the whole time, encouraging the pair with lines like: “We will teach these bastards a good lesson.”19 For his work on the case, Eldawoody received $100,000 from the FBI.
The evidence from the sting was enough to win convictions, and Siraj was sentenced to thirty years in prison and Elshafay to five years. But it was also clear from the trial that Siraj was a dimwitted social recluse—a mother’s boy with little capacity to steal a car on his own, let alone bomb a subway station as part of a spectacular terrorist attack that could frighten the most populous city in the United States. In fact, Siraj was recorded during the sting operation as saying: “Everyone thinks I’m stupid.” The question underlying the Herald Square case can be asked in dozens of other similar sting operations: Could the defendants have become terrorists had they never met the FBI informant? The answer haunts Martin Stolar, the lawyer who represented Siraj at trial and fully expected to win an acquittal through an entrapment defense. “The problem with the cases we’re talking about is that defendants would not have done anything if not kicked in the ass by government agents,” Stolar said. “They’re creating crimes to solve crimes so they can claim a victory in the War on Terror.”20 The practice is only growing. Though developed under the watch of President George W. Bush, terrorism stings have become even more common under the Obama administration. While the Bush administration’s use of terrorism stings peaked in 2006 and 2007—sixty defendants were prosecuted and convicted from terrorism stings during those two years—the Justice Department began to shy away from the practice toward the end of Bush’s term in office. In 2008, Bush’s last year as president, the U.S. government didn’t prosecute anyone from a terrorism sting. But when Barack Obama became president in January 2009, the use of sting operations resumed and increased in frequency. During Obama’s first three years in office, the Justice Department prosecuted more than seventy-five terrorism sting targets.21
More than anything, these aggressive prosecutions are a result of Obama’s embracing national security as a central tenet of his presidency. Despite having been awarded a Nobel Peace Prize in 2009, Obama has been an agressive president—engaging U.S. military resources in the ouster of Muammar Gaddafi in Libya and conducting secret wars in Yemen and Somalia. But nowhere is Obama’s agressiveness more dramatic than at home, where he has ordered six prosecutions under the 1917 Espionage Act involving leaks of government documents—double the number of Espionage Act prosecutions under all previous presidents combined—and stepped up the rate of terrorism sting operations conducted by the FBI.22 Obama’s national security posture is a pragmatic political one, as the public has historically perceived Democrats as weak on national security and unwilling to be as aggressive on terrorism as their Republican counterparts. However, Obama was able to reverse that perception during his first years in office, and public opinion polls during his fourth year as president showed that most Americans gave him high marks on national security.23
That’s in part why the Obama administration has been so aggressive in pursuing terrorism stings. Addressing a gathering of Muslim leaders near San Francisco in December 2010, attorney general Eric Holder explained that in the use of terrorism stings, the administration believes the ends justify the means. “These types of operations have proven to be an essential law enforcement tool in uncovering and preventing potential terror attacks … And in those terrorism cases where undercover sting operations have been used, there is a lengthy record of convictions,” the Attorney General said, adding “Our nation’s law enforcement professionals have consistently demonstrated not just their effectiveness, but also their commitment to the highest standards of professional conduct, integrity, and fairness.”24
Today, federal prosecutors announce arrests from terrorism stings at a rate of about one every sixty days, suggesting either that there are a lot of ineffective terrorists in the United States, or that the FBI has become effective at creating the very enemy it is hunting.
2. THE NEW FBI
The story of the FBI’s transformation from a law enforcement organization that investigates crimes after they occur to one that tries to prevent them before they happen began with an agent whose life ended in the south tower of the World Trade Center on September 11, 2001.
John P. O’Neill was a handsome man who wore his black hair slicked back and every morning placed a pocket square in his custom-tailored suit jacket. He had moved up in the Bureau after investigating white-collar crime and abortion clinic bombings, and had a reputation for being unafraid to challenge superiors, high-level political appointees, and politicians. He was what most FBI agents weren’t—flamboyant and opinionated.
In 1995, following an assignment in Chicago, O’Neill received a promotion that brought him to FBI headquarters in Washington, D.C., where he was named chief of the counterterrorism section. Back then, counterterrorism was a small FBI branch that rarely attracted the notice of the Bureau’s leadership. However, his first day on the job, O’Neill received a tip that would begin an obsession with a terrorist organization known as Al Qaeda. Ramzi Yousef, mastermind of the 1993 World Trade Center bombing and co-conspirator of the “Bojinka” bomb plot (a foiled 1995 attempt to hide explosives in dolls placed aboard airliners), had been spotted in Pakistan. O’Neill put together a team including Pakistan’s Inter-Services Intelligence that captured Yousef in Islamabad and extradited him to New York, where he was found guilty at trial for his role in the World Trade Center bombing and sentenced to life in prison.
Following Yousef’s capture, O’Neill began to suspect that Al Qaeda, then an emerging Islamic terrorist network, would try to target the United States again. Al Qaeda was more sophisticated and farther-reaching than U.S. government officials had estimated, O’Neill believed. However, his obsession with Al Qaeda and his abrasive personal style chafed at FBI headquarters. Following a heated exchange with then FBI director Louis Freeh on a plane trip from Saudi Arabia—O’Neill told the director Saudi officials were “blowing smoke up your ass” about the Khobar Towers bombing investigation—O’Neill put in for a transfer to the New York office.1 When the Bureau granted his request, he moved the FBI’s counterterrorism section to Manhattan and s
et out to recruit agents for a reconfigured unit that would investigate an emerging enemy the FBI only barely understood.
Dedicating itself to researching Al Qaeda and Osama bin Laden, the counterterrorism section found evidence to support O’Neill’s belief that Al Qaeda was getting Muslim extremists throughout the Middle East and Asia to coalesce around a common philosophy that viewed the United States as a central force for evil in the world. But the Bureau’s top leaders weren’t interested in what O’Neill was finding, and his warnings about Al Qaeda’s increasing threat to the United States fell on deaf ears at headquarters. After being denied a promotion to head the FBI’s New York office, one of the Bureau’s most prestigious posts, O’Neill, then forty-nine years old, knew he’d reached the top rung of his ladder at the Bureau and submitted his retirement paperwork in August 2001.
O’Neill had lined up another job, however, as chief of security at the World Trade Center. He told Chris Isham about his new job. Isham was an ABC News producer who had interviewed Osama bin Laden in May 1998 and had leaned on O’Neill for information to prepare the interview questions. “Well, that’ll be an easy job,” Isham told him. “They’re not going to bomb that place again.”2
“No, actually, they’ve always wanted to finish that job,” O’Neill told him. “I think they’re going to try again.”
Nineteen days after O’Neill started at the World Trade Center, two commercial airliners crashed into the twin towers. O’Neill died in the attack from an enemy he had repeatedly told the FBI it should fear. Despite his death and the resistance to his warnings about Al Qaeda, O’Neill’s ideas and several agents he trained would ultimately reshape the Bureau’s counterterrorism section in the years following the attack.
Because of the long-term institutional ignorance about the threat that Al Qaeda posed, most of the FBI’s top management knew little about the terrorist organization on September 11, 2001. Part of the reason for this problem was that counterterrorism before 9/11 was considered a career dead end within the Bureau. As a result, FBI training did not distinguish between Islamic terror tactics and those that had been employed in the past by European and domestic groups. “A bombing case is a bombing case,” said Dale Watson, who was the FBI’s assistant director for counterterrorism on September 11, 2001.3 During a 2004 deposition, a lawyer asked the former counterterrorism chief if he knew the difference between Shia and Sunni Muslims. “Not technically, no,” he answered. Watson’s attitude reflected a belief in the Bureau that agents didn’t need to understand Al Qaeda in order to investigate the terrorist network. “I don’t necessarily think you have to know everything about the Ku Klux Klan to investigate a church bombing,” Watson said in the same deposition as a way of explaining this thinking.4
The Bureau’s ignorance of Al Qaeda and Islamic terrorism in general was one of the reasons the FBI was caught flatfooted on September 11, 2001. But it wasn’t the only reason. Despite his unsophisticated view of Islam, Watson had lobbied to increase the counterterrorism budget. With the help of outside consultants, and with the approval of President Bill Clinton’s attorney general, Janet Reno, Watson had authored a plan codenamed MAX CAP 05, or Maximum Capacity by 2005, which called for a significant capacity increase in FBI counterterrorism operations. In the months before 9/11, as intelligence suggested a terrorist attack could be imminent, Watson pushed Attorney General John Ashcroft to approve MAX CAP 05. But Ashcroft and Robert Mueller—then the attorney general’s deputy at the Justice Department—rejected Watson’s requests for budgetary reasons.5 That left the FBI counterterrorism section poorly equipped to respond to the 9/11 attacks. As the U.S. government prepared for a feared second-wave attack, few agents were qualified to gather intelligence effectively and quickly on Islamic terrorism, in the United States or abroad. For example, on the day planes flew into the World Trade Center, the FBI had only eight agents who could speak Arabic and only one of those agents, Ali Soufan, an O’Neill protégé, was based in New York.6*
FBI director Robert Mueller had taken the top job at the Bureau only one week before 9/11. After the World Trade Center towers fell, President George W. Bush called the new director into the Oval Office. He had a simple message for him: never again. The White House began to exert enormous pressure on the FBI to disrupt or preempt the feared next attack, forcing the Bureau to transform overnight into an intelligence-gathering agency capable of doing what international peer groups such as Britain’s MI5 were able to achieve in terms of surveillance. To help accomplish this, the FBI recruited intelligence officers out of the National Security Agency and Central Intelligence Agency. Mueller’s stewardship of the FBI’s rapid transformation was among the reasons he received favorable reviews from the 9/11 Commission.7
To lead the transformation into a counterintelligence and counterterrorism organization, Mueller turned to Pat D’Amuro, who had researched Al Qaeda while working under John O’Neill. In D’Amuro, whose background was in investigating Russian organized crime, O’Neill had seen a talented manager who could help him run the counterterrorism section. “I can teach you the counterterrorism issues,” O’Neill told D’Amuro.8 Mueller knew that O’Neill’s former unit in New York was the most up to speed on Al Qaeda, and that D’Amuro, as O’Neill’s former deputy, was best qualified to lead an investigation of 9/11. “I was down in Washington and the director saw me in the hallway and wanted to speak to me,” D’Amuro remembered. “So I went into his office the next day and that’s when he asked me if I would come down to Washington as an inspector-in-place and run the events of 9/11 because of the involvement of New York into the investigations and the intelligence gathering into Al Qaeda.”9 That post led to D’Amuro’s quick promotion to executive assistant director for counterintelligence and counterterrorism.
In an effort to redesign the FBI’s counterterrorism program, D’Amuro called Arthur Cummings, a former Navy SEAL who spoke Mandarin and had investigated the first World Trade Center bombing, and asked him to take the position of counterterrorism section chief.10 Because counterterrorism still had a reputation at the Bureau for being a career-halting transfer, Cummings, who was based in Richmond, Virginia, was initially resistant. He wanted to move up in the Bureau, and he knew some paths made upward movement easier than others. Counterterrorism wasn’t one of those paths, Cummings and other FBI agents believed at the time. Cummings told D’Amuro he didn’t want the job, as he had put in to be assistant special agent in charge, or ASAC, of the FBI’s office in Richmond.
D’Amuro asked FBI director Mueller to call Cummings himself. “He said that he understood that I wanted to be the ASAC in Richmond, and I said I did,” Cummings recalled. “I said that would be my preference because I needed to ensure my career progression, and the Bureau’s a little tight on checking the boxes. I just needed to be an ASAC, or I thought I did. He said, ‘It’s a different time. You’ve already displayed leadership traits. You don’t need to be an ASAC. Don’t worry about being an ASAC. I need you in this section chief job.’”11 D’Amuro added that Cummings was getting the terrorism post whether he wanted it or not. “He basically said, ‘I need you in this job. It’s very important right now in counterterrorism,’” Cummings said. “And I said, ‘It doesn’t make sense from a career progression standpoint. He said, ‘You can either put in for the job or I’m going to draft you for the job. But you’re going to do this job.’ The Bureau, after 9/11, stopped being an all-volunteer army. The director made it very clear that he needed the right people in the right jobs at the right time. He basically was making that happen. So I said OK. I’m not an idiot. I was going to be in the job. I was either going to go willingly or I was going to not, but I was going to be in the job.”12 While Cummings was rebuilding the counterterrorism section in Washington, D.C., FBI associate deputy director Thomas J. Harrington sent him to Guantanamo Bay, Cuba, in January 2003 to help set up the FBI’s operations on the island. Harrington saw it as an opportunity for Cummings and other counterterrorism agents and analysts to get “in
the box” with terrorists and build their confidence in dealing one on one with Islamic extremists.13 When he returned from Cuba, Cummings had orders to devise the Department of Homeland Security’s new threat-level matrix—the now-famous red, orange, and blue color scheme.14 “They started off with the red, orange, green,” Cummings said. “I’ve got some great stories about that whole disaster. What are color-blind people going to do? I mean, the questions that came.”15
Among Cummings’s most important tasks at the Bureau was increasing intelligence gathering at home. As a result, he became one of the chief proponents of FBI terrorism stings, co-authoring the Bureau’s Domestic Investigations and Operations Guide, best known by the acronym DIOG. The 258-page document created the policy framework for the FBI’s domestic intelligence network in U.S. Muslim communities and elsewhere, and allowed the Bureau to open quick investigations, known as “threat assessments,” without having the criminal predicate, or probable cause, necessary to justify a full investigation.16 Before 9/11, investigating anyone without having credible information to support the belief that the target was involved in a crime was illegal—and unthinkable at the FBI. The DIOG changed all of that, and specifically allowed the consideration of religious affiliation for justifying threat assessments. If a known or suspected terrorist had attended a particular mosque, for example, the FBI had authority under the DIOG to investigate any of the mosque’s other attendees for up to forty-eight hours. Once forty-eight hours had passed, according to the DIOG, agents needed an established predicate to continue the investigation. The current version of the DIOG, adopted in October 2011, goes even further than the one Cummings co-wrote, allowing for, among other tactics, “trash covers,” which is Bureau parlance for when agents rifle through someone’s garbage to search for information that could be used to recruit informants.17
The Terror Factory Page 3