How the FBI failed us -- and how we can fix it

NOW WE KNOW why the government failed to stop 9/11. Embattled FBI Director Robert Mueller told a Senate committee last week that what prevented his agency from halting the attack was its inability to issue warrant-less search orders with the profligacy of a parking ticket officer.

If only it had the currently available unfettered "national security letter" authority to run through personal information data bases without judicial oversight, Mueller suggested, the FBI would have found 9/11 terrorist Khalid al Midhar and through him the other Al Qaeda conspirators. Really?

Midhar was one of the 9/11 terrorists. When he entered the United States, the CIA knew it and knew he was an Al Qaeda terrorist. An FBI agent at the CIA knew he was in the country. Months later FBI headquarters was told, but the agents working the case never told the FBI leadership or the White House.

So what does Mueller want us to believe now, that when the CIA finally told the FBI that Midhar was in the United States that it was the bureau's difficulty in getting a warrant on a known Al Qaeda terrorist that was responsible for its failure to find him?

Might a few other factors have played a bigger role in Midhar's not getting caught? Perhaps it was the fact that the FBI agent (stationed at the CIA to ensure "information sharing") accepted the decision to deny the bureau the information that Midhar had entered the United States? Or maybe it was the later decision by FBI counter terrorism supervisors working on the Midhar case not to tell the bureau's representative on the interagency Counter-terrorism Security Group? Could it possibly be the absence of a serious nationwide manhunt for an Al Qaeda terrorist or the FBI's failure to tell the National Security Council he was in the United States? Or could it have been the bureau's inability to listen to its own agents' concerns about flight schools, when the 9/11 terrorists were here learning how to fly?

Mueller's "blame the Fourth Amendment" excuse cannot hide the consistent record of colossal mismanagement under the current FBI director and his predecessor. Republican senators Arlen Specter and Charles Grassley have detailed the long list of the bureau's failures -- from the thousands of errors in warrant-less search orders, to the millions of dollars wasted in botched computer system contracts, to the failure to provide adequate training in radical Islam to new recruits.

There is an embarrassing string of national security cases in which the Bureau either accused the wrong man or was unable to arrest him, from the Atlanta Olympics bombing, to the Los Alamos nuclear espionage, to the lethal anthrax attacks. In many of the terrorism cases it did "crack," the agency exaggerated the threat, giving the impression it had uncovered and prevented serious or imminent plots when in fact the plot was still little more than a day dream.

Specter was right to suggest it is time to take away national security investigations from the FBI and let it concentrate on fewer, easier things so that it might do a better job. We and other counter terrorism specialists have struggled with the decision to call for a separate national security protective investigatory agency. Creating a new agency is always fraught with challenges. One can only look at the disastrous start to the Department of Homeland Security. But it is also difficult to re invent an existing bureaucracy with a deeply engrained culture like the FBI's.

Other democracies, such as Britain and Germany, have recognized that national security and terrorism investigations do not require men with guns and badges. Those nations have created separate analytic research and investigations groups, which call the police to make arrests. The Germans named their agency the "Office to Protect the Constitution."

The Bush administration and Congress have given the FBI "one more chance" to get it right too many times. There is no reason to continue to believe that the bureau as now designed can be effectively managed to handle its counterterrorism and other responsibilities. Its scope should be narrowed and a separate national security protection agency created with effective safeguards to do analysis, research, and investigation of domestic security. Threats to national security within the United States are too important to be left to the FBI. The time to do this is not in the aftermath of another terrorist attack, when Congress's instinct will be to legislate first and worry about the consequences later. It should be done now, in a manner that is thoughtful, logical, and supportive of the nation's security and constitutional liberties.

Richard A. Clarke and Roger W. Cressey, who were counterterrorism officials in the Clinton and Bush administrations, are officers of Good Harbor Consulting.