About Those FBI Counterterrorism Assessments …

The Department of Justice Inspector General, Michael Horowitz, released a report this week on the FBI’s use of counterterrorism assessments to find and stop so-called “Homegrown Violent Extremists” (HVEs). The report notes that the FBI

defines HVEs as global jihad-inspired individuals who are in the United States, have been radicalized primarily in the United States, and are not receiving individualized direction from a foreign terrorist organization (FTO).

That definition excludes the white supremacist or Neo-Nazi domestic terrorists that in the post-9/11 period have actually accounted for more U.S. homeland terrorism-related deaths than those inspired by Salafist ideology. Why Horowitz and his team did not question the FBI’s very selective definition of who is considered an HVE is just one troubling aspect of the report.

Given the extremely low threshold requirements in the FBI’s Domestic Investigations and Operations Guide (DIOG) for opening an assessment, the potential for wrongly targeting an individual or group for data collection, or even confidential human source (CHS) recruitment and monitoring, on the basis of constitutionally protected speech and association is ever present. The IG does express concerns about the potential for such abuses, but the report’s focus is clearly on getting the FBI to reopen closed assessments to make sure another Omar Mateen doesn’t slip through the cracks in the FBI’s Guardian counterterrorism (CT) assessment tracking database:

While we acknowledge the difficulty in finding the right balance between national security and civil liberties, the FBI should determine what steps are permissible under applicable law and FBI policy, and if necessary, amend FBI policy consistent with legal requirements to ensure that the FBI is able to identify and mitigate potential terrorism threats during Guardian assessments and reassessments. (DOJ IG report, p. 27)

The IG noted that the FBI had previously closed an assessment on Mateen, suggesting that the failure to follow up on additional derogatory information on Mateen contributed to the Pulse Nightclub shooting tragedy, a pattern Bureau officials believed they had seen in at least 5 other subsequent domestic terrorism cases, in which prior Guardian CT assessments had been closed, including Nidal Malik Hasan, who shot and killed 13 people at Fort Hood, Tex., and Tamerlan Tsarnaev, who, along with his brother Dzhokhar, carried out the 2013 Boston Marathon bombing.

Indeed, the IG seems to have accepted the FBI’s discredited radicalization theory as a reason for recommending the regular review and reopening of closed Guardian CT assessments:

We found that some field offices developed initiatives to conduct similar reviews on closed investigations and closed assessments, separate from the Deputy Director’s Closed Guardian Review. According to the FBI, these field offices established these initiatives, in part, to address the HVE phenomenon involving individuals who turn from consuming radical ideologies to mobilizing to violence in a short period of time without extensive planning. These field offices used a Type III assessment for their initiatives. According to the DIOG, a Type III assessment is opened to identify, obtain, and utilize information about actual or potential national security threats of federal criminal activities or the vulnerability to such threats or activities. (DOJ IG report, p. 20)

In fact, there is no scientific basis for the theory that simply “consuming radical ideologies” leads to a person becoming a terrorist.

The fact that at least two FBI field offices took it upon themselves to reopen an unspecified number of closed Guardian CT investigations utilizing the broad authorities granted by the DIOG for conducting Type III assessments gave the IG some pause:

Although distinct from the Deputy Director’s Closed Guardian Review, these initiatives have similar implications for legal and civil liberties issues resulting from field offices that conducted proactive database checks on all closed Guardian assessments. In line with our recommendation for the FBI to evaluate the execution of the Deputy Director’s Closed Guardian Review, we believe the FBI should take steps to both assess the benefits of these individual field office initiatives and determine whether such proactive steps are permissible under applicable legal authorities and FBI policy so that a decision can be made as to whether they should be undertaken by all FBI field offices, and if necessary, whether amending FBI policy, consistent with law and mindful of civil liberties, would enable such initiatives to improve the quality of Guardian assessments. (DOJ IG report, p. 21)

If the IG conducted any kind of evaluation on the reopened Guardian CT assessments to determine if they were initiated largely on the basis of constitutionally protected speech or association, there is no mention of it in the report.

Finally, it is deeply disturbing that the IG elected to censor the total number of Guardian assessments, preliminary investigations, or full investigations generated by the FBI during the period in question (FY 2014-2018). Releasing such summary data would in no way jeopardize national security or pending investigations. Indeed, nearly a decade ago the FBI released to the New York Times the total number of Type I and Type II assessments it had conducted over a just a four-month period in 2009: 11,667. Of those, only 427 resulted in actual investigations, and no data was provided on exactly how many actual trials and convictions resulted. The Times subsequently got additional data, covering March 2009 to March 2011, that revealed 82,325 FBI Type I and Type II assessments had been conducted, with only 3,315 preliminary or full investigations subsequently opened. Bottom line: The Bureau collected data and conducted some level of surveillance on nearly 80,000 individuals or groups with no plausible connection to crimes. Horowitz and his investigators made no mention of these past FBI excesses in their current report.

I have no doubt that Horowitz and his team meant to be helpful to the Bureau with this report and recommendations. I fear, however, that it will actually encourage the FBI to be more, not less, aggressive in the use of Type III assessments in CT cases without adequate constitutional safeguards. 

About the Author(s)

Patrick Eddington

Policy Analyst in Homeland Security and Civil Liberties at the Cato Institute and Former Senior Policy Advisor to Rep. Rush Holt (D-N.J.). Follow him on Twitter (@PGEddington).