As FBI fights terrorism, other prosecutions drop

Since 9/11, the number of criminal prosecutions the US Justice Department credits to the Federal Bureau of Investigation has dropped by more than 30 percent. Among the steepest declines: white-collar crime, drug prosecutions, and organized crime.

The data reflect a fundamental shift in the mission of the FBI, from primarily a law-enforcement agency dedicated to investigating crime to an intelligence and counterterrorism one dedicated to preventing attacks on the US. The numbers show the extent of that transformation, raising concern in some quarters about the strength of crime-fighting in America and the FBI's enhanced surveillance powers.

In 2001, the Justice Department credited almost 19,000 prosecutions to the FBI. In 2006, the bureau was credited with 12,700, according to an analysis of Justice Department data by the Transactional Records Access Clearinghouse (TRAC) at Syracuse University in New York. During that same five-year period, terrorism prosecutions rose 26 percent, but they account for a small fraction of the FBI's cases and have dropped in number since peaking in 2002.

FBI officials declined to discuss the TRAC data specifically. But they note there hasn't been a terrorist attack on US soil since 9/11. They also point to FBI successes in infiltrating potential terror cells, such as the recent foiling of alleged plots to attack Fort Dix in New Jersey and John F. Kennedy International Airport in New York.

The drop in traditional prosecutions is simply the opportunity cost associated with such a significant shift of FBI priorities, say some former agents and law-enforcement analysts. Still, the drop in prosecutions is alarming to some observers.

"I don't pick up the business section every day of the week that I don't see some kind of shenanigans going on in the business sector," says Lee Hamilton, vice chair of the 9/11 commission. "There's an awful lot of malfeasance in this country at high levels: You've got drug dealers, and ordinary criminals, and all the rest, and they need to be prosecuted."

Congressional scrutiny

The drop in prosecutions has also caught Congress's attention. At a hearing of the Senate Judiciary Subcommittee on Crime and Drugs in May, Sen. Joseph Biden (D) of Delaware said that since 9/11, the number of violent-crime investigations by the FBI has dropped 60 percent – even though cities across the country are seeing an increase in murders and other violent crime, after a decade of steady declines.

Senator Biden, chairman of the subcommittee, blamed the White House for transferring about 1,000 agents to counterterrorism from traditional law-enforcement duties and not replacing them. He has introduced legislation to remedy that by adding 1,000 agents to the bureau, which currently has about 12,500 agents total.

"The federal government has taken its focus off street crime since 9/11, asking law enforcement to do more with less," he said at the hearing. "It's a false choice between fighting terrorism and fighting crime."

Drug prosecutions still make up about half of all cases the FBI brought to court in fiscal year 2006, about the same share as before 9/11. But there are simply half as many of them as in 2000: 2,380 now compared with 5,014 then, according to the TRAC analysis.

Organized-crime cases saw the biggest decline – a 73 percentage drop in prosecutions filed between fiscal 2000 and 2006. The study reported that the FBI filed 163 such cases last year, compared with 606 in 2000.

In addition, its prosecutions of white-collar crime against banks fell 62.5 percent over that time. Yet the study also showed an exception to the rule: Pursuit of pornography cases has become more zealous since 9/11, doubling from 385 in 2000 to 796 in 2006.

For some analysts, the overall drop in traditional prosecutions raises concerns about how the FBI is carrying out its new counterterrorism mandate, because much of its work is done in secret. They point to revelations this spring by the Justice Department's inspector general that the FBI had misused its authority to collect Americans' telephone and credit-card records without a warrant through the use of so-called national security letters (NSLs). Last week, an internal FBI review reported as many as 1,000 violations since 2002. As a result, the FBI issued 24 pages of guidelines for agents to follow so individual rights won't be compromised.

Still, civil libertarians are not satisfied.

"Unfortunately, these NSL guidelines are not enough," says Caroline Fredrickson, director of the American Civil Liberties Union legislative office in Washington. "The IG report revealed that the FBI can't be trusted to follow the rule of law when the public is not watching."

Other analysts also point to a history of the FBI engaging in unconstitutional domestic surveillance, such as the Counter Intelligence Program (COINTEL). It was started in the 1950s and was designed to infiltrate communist organizations, but by the 1970s when it was shut down, it was keeping dossiers on tens of thousands of individuals.

"These activities were unlawful and a serious violation of individual rights, and threatened the civil liberties upon which our democracy is based," says David Burnham, co-founder of TRAC.

Assurances from FBI

FBI officials insist that safeguards put in place as a result of past abuses ensure that Americans' civil rights will be protected. They note that the Justice Department, in the IG report, exposed the NSL abuses.

"It is the FBI's job to protect Americans, not only from crime and terrorism, but also from incursions into their constitutional rights," said FBI spokeswoman Denise Ballew in an e-mail. "Through a series of legislative, procedural, and institutional initiatives, we now have a structure of self-regulation and oversight that ensures FBI compliance with the [USA] Patriot Act and all other applicable laws and regulations."

In addition to the Justice Department's inspector general, which oversees the FBI, five congressional committees also have oversight authority. Current and former FBI agents also insist they are trained from their first days in the academy to be conscious of legal restraints that guide their investigative work.

They also argue that if Congress expects the agency to fulfill both its law-enforcement and counterterrorism functions, the bureau will need more resources.

"I'd prefer to see an in-depth study of the kind of resources that are really needed," says John Hall, a 32-year FBI veteran, now retired, who spent the last third of his career teaching at the FBI National Academy. "It may be a thousand, or it may be 2,000 agents, but if we expect to address effectively the sophisticated challenges that are out there now, [we need] more resources."