The Washington Post
May 10, 2008 Saturday
Met 2 Edition
FBI, ATF Battle for Control Of Cases;
Cooperation Lags Despite Merger
BYLINE: Jerry Markon; Washington Post Staff Writer
SECTION: A-SECTION; Pg. A01
LENGTH: 3084 words
In the five years since the FBI and ATF were merged under the Justice Department to coordinate the fight against terrorism, the rival law enforcement agencies have fought each other for control, wasting time and money and causing duplication of effort, according to law enforcement sources and internal documents.
Their new boss, the attorney general, ordered them to merge their national bomb databases, but the FBI has refused. The Bureau of Alcohol, Tobacco, Firearms and Explosives has long trained bomb-sniffing dogs; the FBI started a competing program.
At crime scenes, FBI and ATF agents have threatened to arrest one another and battled over jurisdiction and key evidence. The ATF inadvertently bought counterfeit cigarettes from the FBI -- the government selling to the government -- because the agencies are running parallel investigations of tobacco smuggling between Virginia and other states.
The squabbling poses dangers, many in law enforcement say, in an era in which cooperation is needed more than ever to prevent another terrorist attack on U.S. soil. Michael A. Mason, a former head of the FBI's Washington field office who retired in December from a senior post at FBI headquarters, said outside intervention might be needed.
"A lot of these things require a little adult supervision from the Justice Department or Congress, which will resolve a lot of the food fights these two agencies find themselves in," he said. Mason said that although both agencies "have in their hearts the safety and security of this country," he worries about a potential attack "where the ball got dropped, and it's not going to matter whose fault it was because information wasn't passed or shared."
The ATF's transfer from the Treasury Department to the FBI's home at Justice after the Sept. 11, 2001, attacks was supposed to eliminate long-standing tensions between two proud and independent entities,
"We thought we'd get more cooperation from two agencies that ought to be cooperating in the war on terror," Sen. Charles E. Grassley (R-Iowa) said of the 2002 law that created the Department of Homeland Security and authorized the merger.
But the transfer, thrown together in the final stages of the largest government reorganization in a half-century, proved to be a merger in name only. The ATF came under the Justice Department seal yet maintained its offices and headquarters. Little thought went into melding the distinctive cultures.
"It was all slapdash," said a Justice Department official who spoke on condition of anonymity because he is not an authorized spokesman. "One day you wake up, and ATF is part of Justice."
The new law not only failed to repair clashing jurisdictional lines, it also expanded the ATF's role in domestic terrorism cases, bringing that agency into conflict with the core mission of the post-Sept. 11 FBI.
Officials from both agencies acknowledged occasional tensions and said they are working hard to protect Americans and ensure smooth relations. They provided numerous examples of cooperation, including the response to bombings in Iraq, the recovery efforts after Hurricane Katrina and the investigation of the Virginia Tech massacre led by state and university police.
But law enforcement sources describe an unyielding struggle for control of explosives, arson and tobacco investigations that has played out in recent months at the government's highest levels. A dispute over the ATF's role in explosives cases, sources said, has helped delay a White House-ordered national strategy to protect the nation from terrorist bombs.
"Everything that we're doing, they're doing," said an ATF agent not authorized to comment. "It's just a constant battle."
'Sour Relationship'
More than 30 ATF agents arrived at the smoldering Pentagon the day after Sept. 11, 2001, to help with the largest criminal investigation in the nation's history. The FBI commander threw them off the site.
Although Arlington County had authority over the scene for the first 10 days after the attacks, the two federal agencies fought over who would take the eventual lead in the investigation, recalled Arlington Fire Chief James H. Schwartz, the incident commander.
The ATF backed down, but before assuming control, the FBI again excluded some ATF agents from the site. Several frustrated ATF agents cut a fence to get closer and were ejected by U.S. marshals, Schwartz said.
"The American people are not being best served by this sour relationship and by the lack of efficiency," Schwartz said. "I think there's a huge risk there, especially when you look at it through the lens of terrorism."
ATF spokesman Robert Browning said ATF commanders told him the fence incident did not happen.
The clash at the Pentagon laid bare problems between the two agencies that had been brewing for years.
The ATF, which now has about 2,500 agents, was historically part of the Treasury Department -- it became an independent agency within Treasury in 1972 -- because it collected tobacco and liquor taxes. It has gradually acquired jurisdiction over firearms, explosives and other related crimes.
The FBI, which has more than 12,000 agents, has prided itself on fighting violent crime since the 1930s.
The competition between the FBI and ATF bred mutual suspicion. ATF agents, many of whom are former police or military officers, have long resented their FBI colleagues, who until the mid-1990s were usually higher paid.
"We fashion ourselves as federal street cops, and we don't try to make things larger than they are," said one ATF agent. "Their job is to see a bigger picture, a global connection."
As Congress debated the Homeland Security Act of 2002, an FBI memo surfaced that hinted at problems to come. It derided ATF agents as poorly trained and lacking "strategic vision." Although it was discounted by FBI Director Robert S. Mueller III, many in the ATF were outraged.
The new law turned the rivals into Justice Department siblings but might have deepened their estrangement.
It is unclear who conceived the transfer, but then-ATF Director Bradley A. Buckles recalled that the Justice Department "seemed like a natural home for us" because the ATF had become primarily a law enforcement agency.
Grassley saw a way to heighten collaboration against terrorism. "I was well aware of the conflict between ATF and FBI, but I thought it would all be put to the side once they got under the same department," he said.
The Bush administration's first proposal left the ATF in the Treasury Department. What ensued was "a mad scramble," Buckles said. "We were just a loose piece that they hadn't figured out what to do with."
With little fanfare, the final bill transferred the ATF's law enforcement functions to Justice while leaving tax-collecting employees at Treasury. But the agents who became part of the Justice Department on Jan. 24, 2003, didn't really move at all. Their supervisors stayed the same, as did their work.
A few things did change. Congress added the word "explosives" to the name of the ATF, which had been the Bureau of Alcohol, Tobacco and Firearms.
And the law spelled out that in addition to violent crime, the ATF could investigate acts of "domestic terrorism."
Less than two months later, in March 2003, a North Carolina farmer drove his tractor into a pond on the Mall, keeping police at bay for 47 hours as he threatened to set off bombs. The FBI and ATF both asserted jurisdiction, even though the U.S. Park Police was the lead agency, sources said.
It was becoming clear that the lack of planning would have consequences. Who would control explosives cases? How involved would the ATF be in fighting terrorism? When is a bombing considered terrorism?
Within days of the tractor episode, the ATF fired a shot in a long series of battles at Justice Department headquarters, documents show. Emboldened by its new name, the ATF sought to become the department's primary responder to all of the nation's estimated 3,500 annual explosives incidents and to coordinate the on-scene investigation even for domestic terrorism.
The FBI, which had always taken the lead on terrorism, fought back. Other disputes flared: Who would train bomb-sniffing dogs and bomb squads, and what would be done about competing ATF-FBI "bomb data centers" -- vast databases used in explosives investigations?
An August 2004 memo from then-Attorney General John D. Ashcroft decreed that the bomb data centers and most explosives training would be consolidated under the ATF and that the agency would train all Justice Department bomb-sniffing dogs.
On the core issue of explosives, Ashcroft said that if a bombing was terrorist-related, the FBI-led Joint Terrorism Task Force for that area would control the investigation. If it was not, theATF would take charge, unless the case involved areas such as civil rights that are traditional FBI turf.
The memo left it up to the task forces to determine terrorist links. In practice, it has meant that both agencies descend on the same crime scenes, often at the same time.
Arguments Still Flare
FBI agents arrived first in December 2004 after fires devastated a Charles County subdivision, built near an ecologically sensitive bog, in Maryland's biggest residential arson case in memory. The FBI pushed to declare it eco-terrorism, sources said.
ATF agents thought the FBI, seeking to take the lead in the case, was reaching a hasty conclusion before fully examining the evidence. There were shouting matches at the scene, slowing the investigation, sources said. "There were definitely some issues," said Maryland Deputy State Fire Marshal Joseph Zurolo.
Five men were ultimately convicted of setting the fires, and eco-terrorism was ruled out. The arson disputes have persisted. Sources said arguments in similar fires have flared more than a dozen times across the country in recent years.
Sometimes, the integrity of key evidence is put at risk. When letters containing flammable match devices were mailed to state governors in late 2004, the ATF-FBI battle over lead agency status grew so contentious that it reached the deputy attorney general's office in Washington. Because the ATF could not prove that the act was not terrorism, sources said, officials sided with the FBI.
The ATF then had to move evidence from its lab to the FBI lab -- in the middle of the analysis. FBI officials said they thought their lab was better positioned to glean hair and fiber evidence. The case has never been solved.
Justice Department intervention was also needed after an explosion at a Texas apartment complex in July 2006 killed a 21-year-old man. ATF and FBI agents responded.
Terrorism was again the flash point. FBI agents asserted jurisdiction in part because the device was a peroxide-based explosive, a popular weapon for terrorists worldwide. ATF agents believed there was no terrorist link. The U.S. attorney's office in Houston backed the FBI.
According to an internal ATF incident report, the FBI refused to allow the ATF to continue assisting in the probe. FBI agents then threatened to arrest their ATF counterparts if they remained at the scene, sources said. The roommate of the dead man pleaded guilty to a federal explosives charge and will be sentenced next month.
The federal fighting frustrates local police and firefighters, who are usually the first responders. They describe tense crime scenes in which FBI and ATF agents stand on opposite sides of the street.
"If you're working with one agency, you have to walk on eggshells if you mention the other," said Jeff Kirk, former commander of the Kokomo, Ind., police bomb squad, who has written to Congress about the issue. "Frankly, after all these years, I'm really tired of this alphabet soup fight."
As agents battled in Texas, clashes escalated in Washington. The FBI was resisting Ashcroft's directive to consolidate the bomb databases and most explosives training under the ATF. Ashcroft, who left the Justice Department in 2005, declined to comment. Deputy Attorney General Mark R. Filip would not address the Ashcroft memo but said in a statement that the FBI and ATF "have worked together to build a unified law enforcement response to threats presented by criminals and would-be terrorists. . . . We at the Department expect that."
The FBI responded to Ashcroft's order by saying, "Are you kidding?" a former high-level Justice Department official said. "They couldn't digest it, couldn't accept the notion that their terrorism responsibilities would still be fulfilled and yet they wouldn't have responsibility or control over these certain things. . . . These are very hot and deep-seated conflicts."
FBI officials have not transferred to the ATF the bomb data center they have operated since 1972, saying it analyzes key terrorism intelligence. "Such a shift . . . would seriously impede the FBI's counterterrorism efforts," the bureau argued in a position paper circulated at the Justice Department's highest levels in early 2007.
The paper criticized the ATF for "marketing efforts" promoting the ATF's role in fighting international terrorism.
The Justice Department's inspector general has called the databases duplicative -- the ATF's dates to 1975 -- but local police often feel compelled to check both when investigating bombings. "It's killing time, manpower and resources," said one large-city bomb squad commander. "It's dysfunctional."
The agencies still run separate training academies and classes that are widely considered duplicative, even though two congressional committees also urged in 2004 that training be consolidated under the ATF.
"The FBI is doing the exact same classes that we are," one ATF agent said. "It's chest pounding -- we're better than they are, and they're better than we are."
Officials said they are trying to iron out the bomb data center issue and offer more training together.
Then there was the dogfight. When the Ashcroft memo came out in 2004, the ATF had been training bomb-sniffing dogs for more than a decade. The FBI didn't have a program.
In 2005, the FBI began training dogs to sniff out peroxide-based explosives. An FBI "white paper" sent to the deputy attorney general's office in early 2007 described how the program is superior to the ATF's peroxide training.
ATF officials, some of whom learned of the FBI initiative from the media, were so upset that they issued an order banning ATF-trained dogs from participating in the FBI program, according to the FBI document and law enforcement sources.
In a joint interview recently at FBI headquarters, top ATF and FBI officials vowed to work together, even if some in their ranks are determined to resist.
"We are two very proud agencies that have done tremendous work to protect the American public, and we do that with vim and vigor every day," said William J. Hoover, the ATF'sassistant director for field operations. "Anytime you have individuals who are that passionate about their job, if they feel they are somehow being encroached upon, rightly or wrongly, they are going to bring issues like this to the forefront."
"But we work cases together every day," Hoover added. "I really believe there's a lot more good going on."
J. Stephen Tidwell, an FBI executive assistant director, said conflicts can occur "when that pride in agency comes through, and all that is sometimes going to cause some friction. . . . But I would characterize the relationship right now as as good as it's ever been."
Joseph Persichini Jr., head of the FBI's Washington field office, said he works smoothly with his ATF counterparts. "There's no room for error," he said.
Even as the current leaders try to work in tandem, they are finding it hard to overcome their history.
A fierce dispute among the FBI, the ATF and the Department of Homeland Security has helped delay for nearly a year the national strategy to protect the United States from improvised explosive devices, or IEDs -- a top Bush administration priority. The president directed that the plan be ready by last July. It is unclear when it will be finished.
Sources said the ongoing negotiations over the ATF's role in the plan have become the latest framework for the broader FBI-ATF battle over control of explosives cases, along with conflicts within the ATF over how hard to fight the FBI.
"We are working through each and every [IED] issue that has been bogged down," Hoover said.
Tensions spilled out publicly when the Center for Strategic and International Studies held an IED conference in Washington in October. David Heyman, director of the center's homeland security program, said FBI and ATF agents clashed over who would be on the panel and exchanged sharp words during the conference.
"It was such bad blood that if either agency was going to be there, the other wasn't going to be," said Heyman, who threatened to cancel the conference.
There are still issues at even routine crime scenes. When a Liberty University student was arrested near Lynchburg, Va., last May with a homemade explosive device in his car the day before the Rev. Jerry Falwell's funeral, the ATF interviewed witnesses for two days before the FBI tried to take over, citing domestic terrorism, sources said. Supervisors worked it out, and the ATF kept the case.
Terry Gaddy, the local sheriff, said he was aware of the tension but tried to stay out of it. "It's not my fight; it's theirs," he said.
The lack of information-sharing can have potentially deadly consequences. In Chicago, an undercover ATF agent bought a loaded gun from an FBI informant and was arrested, according to a 2007 Justice Department inspector general's report.
The report quoted an FBI supervisor as saying he was "truly concerned" that FBI and ATF violent crime task forces are "seriously going to be duplicating" gang investigations. It said a top Justice official asked the two agencies to coordinate task forces, but they disagreed over who would lead them.
And a newer battle is emerging: tobacco smuggling. It is integral to the ATF's mission, but the FBI is interested because terrorists have used tobacco profits. Several times in recent months, sources said, the FBI put counterfeit cigarettes on the market and found an unknowing buyer: the ATF.
Some question whether the ATF can survive. "It just doesn't make sense to have two agencies . . . responding anytime a bomb goes off," one Justice Department official said.
Grassley said Congress might have to step in.
"Anybody who wants to be attorney general in fact as well as in name ought to end this yesterday," he said.
Staff writer Sari Horwitz contributed to this report.
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