“Empowering Law Enforcement Is Not the Solution” Says Former FBI Agent

In their first press briefing since the deadly fascist mob attack on the Capitol on January 6, FBI and Department of Justice (DOJ) officials on Tuesday said they are investigating an “unprecedented” number of criminal cases related to last Wednesday’s breach.

The FBI’s Washington Bureau field office assistant director, Steve D’Antuono, said at a news conference that his office has opened 170 case files, and that agents have received over 100,000 “pieces of digital media” and are “scouring every one for investigative and digital leads.”

Michael Sherwin, the acting U.S. attorney in Washington, D.C., said the “scope and scale” of the Capitol assault investigation is unprecedented in FBI and DOJ history, and that more than 70 people tied to the attack had been charged with crimes. Sherwin said he expected that number to rise into the hundreds, and that prosecutors are looking at charging some of the attackers with sedition and conspiracy, which carry sentences of up to 20 years in prison.

D’Antuono defended the FBI after The Washington Post reported that agents in Virginia had warned about a threat of violence the day before the mob attack, contradicting D’Antuono’s previous statement that the bureau had no intelligence indicating any of the pro-Trump protesters planned violence.

He told reporters that the warnings had been shared with multiple law enforcement agencies and that separate intelligence had led agents to visit several individuals in the run-up to the pro-Trump protest to prevent them from traveling to the event. D’Antuono also pointed to the arrest of Proud Boy leader Enrique Tarrio shortly after he arrived in D.C. for the event.

But the several reports in the aftermath of the breach have raised questions about the FBI’s intelligence failures in the run-up to the assault, as well as the possibility of deeper collusion with law enforcement personnel within the Capitol Police and the FBI itself.

Truthout spoke with former FBI agent and Brennan Center Fellow Michael German just before Tuesday’s briefing about the FBI’s failures in preventing the attack, its investigatory process, and long-running double standards in how agents treat left-wing activists versus far right militants.

German spent 16 years as a special agent at the FBI, working undercover among various factions of the far right, including white supremacists and other right-wing militants. He left the FBI in 2004 as a whistleblower, after reporting misconduct and mismanagement in counterterrorism cases to Congress. He was formerly senior policy counsel at the ACLU’s Washington Legislative Office, working on national security and civil rights issues.

The following transcript has been lightly edited for length and clarity.

Candice Bernd: I want to start with the obvious intelligence failures at the FBI. From some of the reporting that’s come out now, many are pointing to the possibility of collusion. Do you view this as an intelligence failure, or do you see it as something deeper than that?

Michael German: So, there’s substantial evidence that sympathy for white supremacy and far right militant groups in law enforcement has been a persistent problem. Serious enough that the FBI regularly warns its own agents about it, and particularly in 2015, warned its agents that the subject domestic terrorism investigations involving white supremacists and far right militias often also involve “active links to law enforcement.” That’s the classified 2015 counterterrorism policy guide that I reference.

Policing remains a predominantly white male profession, and if you look at the political views of white men in this country, they tend to skew to supporting Trump. Because society is polarized, it’s harder: You’re either on one side or the other. There’s no more middle. So even if they reject white supremacy and don’t support the views or political goals of far right militants, they end up on the same side at a protest.

Certainly, what has been frustrating for me over the last four years is that these groups have been allowed to commit public violence and to travel from state to state committing public violence at these rallies without local law enforcement taking action to prevent it or to address it, and without the federal government addressing the interstate aspects of it. That conditions these groups to believe that what they’re doing is government sanctioned. The president of the United States has been encouraging them to attack his enemies in public, and when they do it the police aren’t interfering, so of course they would become conditioned to believe this is allowed.

They have been able to build interstate networks that allow them to travel to do this, and all the while I have been warning police officers that they kill police officers, including recently. The Boogaloo shooting of the two Department of Homeland Security officers in Oakland, and the killing of a sheriff’s deputy in Santa Cruz County — this isn’t some long ago history I’m referring to; it’s current. How law enforcement ever became snookered by their professed “backing of the blue” is absurd to me, and I don’t understand how they fell for it. But certainly, you would hope that at this point they would realize it was a ruse.

I have questions about the FBI process here. The agency had put out a statement saying they had no indication of violence on January 6, which is absurd because those indications were online, everywhere. But it turns out now that they did actually visit more than a dozen people at their homes prior to the attack. So clearly, they did have an understanding of the potential for violence. Another issue is that the FBI didn’t deploy three tactical teams to the Capitol until after a series of calls from Mitch McConnell’s aide that eventually reached FBI Deputy Director David Bowdich in the command center in the Washington Field Office. What are your thoughts on the difference between these reported developments and what the agency is saying publicly? That there hasn’t been a press briefing for six days?

The failure of law enforcement to be better prepared for this assault on the Capitol is an indictment of the law enforcement intelligence apparatus that we’ve invested in for the past 20 years. The FBI beefed up its Joint Terrorism Task Forces and greatly expanded them. The federal government, working with state and local law enforcement, developed a network of law enforcement intelligence fusion centers. Law enforcement is working hand-in-glove with the intelligence agencies. Yet, here was a violent assault that was planned in plain sight, and somehow the dots weren’t connected again.

I think that is an example of what many of us have been talking about for a long time — that this system is not adequately focused on real threats and instead is targeting groups that are expressing themselves or otherwise just minding their own business.

So part of it is that this law enforcement intelligence apparatus is now huge. You’re talking thousands of law enforcement officers involved with it, along with private companies, analysts and this whole intelligence enterprise, and it’s warning constantly. So if you’re a law enforcement leader, you’re probably receiving these threat reports coming over the FBI eGuardian system. They’re probably also coming over to Homeland Security Information Network. They’re coming over Law Enforcement Online. They’re coming over their Regional Intelligence Security System. There are a dozen other portals, and you have these analysts whose performance is measured by the number of reports they produce rather than the quality of them. So they’re writing all kinds of absurd nonsense that is coming out of the fever dreams of the far right, social media swamp, and nobody receiving this information would have any idea how to assess what’s real and what isn’t.

Moreover, if you look at those reports, if you look at the FBI’s Black Identity Extremism report, it warns about this very nebulous, poorly defined movement that is imagined out of six cases in three years that are totally unrelated to one another to imagine a “threat” to law enforcement, but it doesn’t tell law enforcement what to do about that supposed threat. Other reports address more substantial threats from the far right, but likewise do not tell law enforcement how to address them. So all these reports do is frighten people. They don’t provide any actual methodology for addressing the threat.

So the system needs to be torn down, and especially this Capitol assault case is the perfect test case for it, because I imagine that the incidents the FBI is pointing to about how they went out to somebody’s house — I imagine that those are based on eGuardian tips. So there’s this “See Something, Say Something” program in every locality, which reports to law enforcement, who then report to the fusion centers, who then report to the FBI. These go in a system, and the FBI has a policy that no lead goes uncovered, so when somebody says, ‘Hey, my uncle Earl is saying these things about Joe Biden,’ they go out to interview uncle Earl, whether there’s any actual legitimacy to that report or not, and that’s what they call the Suspicious Activity Reporting Program.

When I was at the ACLU, we did a lot of work exposing how a lot of that was racist and Islamophobic and weren’t legitimate leads but were wasting a lot of law enforcement resources in targeting people because of their race or religion. But here we have a case where you don’t have to wait for a tip. These groups have been committing public violence for four years that isn’t policed by the local police. Many of them have been traveling interstate to engage in that public violence, so there’s certainly federal jurisdiction, and yet, these people become minor celebrities in the movement because their violence is filmed and published online, and they use the video to promote themselves at the next protest where they again engage in violence.

I don’t want the FBI going and telling somebody not to go to a protest because his grandma complained about him. I want them addressing the public violence, because the failure to do so has conditioned these people to believe that their conduct is authorized by the government. How would they think anything else? They’re committing violence in front of the local police, and they’re traveling interstate, and the FBI isn’t interfering.

I imagine that when they look at the people who were acting most violently in the assault on the Capitol, that many of them will have engaged in violence in previous protests or have a long history of violent crime. That’s the other thing that’s surprising to me — the FBI is so focused on the First Amendment issues, rather than just looking at the crime issues. These people are not there because they’re politicians. They’re there because they’re violent people who have found an area where number one, there’s a group that encourages their violence and appreciates them for it; but number two, the police let them do it.

I don’t have any insight into why it has taken so long for a press briefing. It’s obviously concerning. The resignation of Acting Secretary of Homeland Security Chad Wolf is eyebrow raising to say the least, as is the recent turnover of leadership at the Department of Justice and the Department of Defense. If I were a policymaker in Congress or in the new administration, I would want to know what is going on that is leading people to leave in droves at this moment where obviously there are serious security issues that need to be addressed. It’s certainly a failure of leadership.

But we’re in a dangerous period, and it would certainly be helpful for the public to know what’s going on. But part of the problem is that for two decades now, we’ve given our law enforcement and intelligence agencies carte blanche and no oversight. So they’ve become accustomed to doing what they want, when they want, and not answering Congress when requested or when demanded.

Yeah, it’s interesting you’re talking about them being so focused on First Amendment activities for so long rather than the actual criminal activity that’s been going on, but in the aftermath of this attack, FBI Washington Field Office Assistant Director Steven D’Antuono told reporters that there was no indication of violence on January 6 beyond plans for “First Amendment protected activity.” All of a sudden they’re citing the First Amendment now to justify their failures.

I’m glad they finally found the First Amendment. I think there are a lot of Black Lives Matter activists and Standing Rock Water Protectors and environmental protesters across the country who would actually point them to that and ask them to stop harassing them. I do want them to protect the First Amendment rights of the Trump supporters who simply went down there to express themselves. That’s not what I’m talking about.

These are two very different things. You know, there’s a lot of talk about social media monitoring too. I’m not on Parler. I don’t surf 8chan or 4chan, or any of these dark web sites. I follow them just through the regular media. So it doesn’t require that kind of surveillance. That’s the wrong way to approach it. Why is it that they’re talking about social media surveillance when they can’t tell you how many people white supremacists killed last year? They can’t tell you that because they’re not looking for it.

Just to be clear: Yes, the FBI needs to honor the First Amendment rights of the people who are going there and expressing themselves and not track people because they’re Trump supporters or because they think the vote was stolen. They need to track people who engage in violence.

One of the things that concerns me right now is that many of the arrests that have been made so far are not focusing on the most violent people there. I mean they’ve made dozens of arrests and most of them are for unauthorized entry. Not many assault-of-a-federal-officer cases have been brought yet, so I hope that that’s where their focus is as well.

I do want to discuss how Biden is already talking about passing a new domestic terrorism statute. Many are issuing warnings about this, about how the reaction to the fascist mob attack and the resulting FBI crackdown could fuel an expansion of the “war on terror,” and I want to get your perspective on how that could be damaging.

First, what I want the public to understand is that no new law is necessary. I worked these cases in the 1990s, and nobody suggested we didn’t have enough legal authority to do so. So it’s a distraction in the first place. The question isn’t what new laws they need, but why isn’t the FBI using the laws it has to address this problem.

My concern is that when you look at the FBI cases against white supremacists, they’re not losing cases against white supremacists; the cases they’re losing are the attempt to prosecute 200-plus anti-Trump protesters at the “Disrupt J20” protest because they were standing on the same block where a window was broken.

How is it that more than 200 people were arrested at the J20 protest, and there were only a handful that were arrested at the Unite the Right protest in Charlottesville, where there was actually interpersonal violence and a homicide. These are choices that law enforcement is making. My concern is that the reason why they want that extra statutory authority is because they want to win those cases, they want to be able to prosecute Black Lives Matter protesters more easily and Standing Rock Water Protectors more easily. There are five federal hate crime statutes. There are 51 federal crimes and terrorism statutes that apply to domestic terrorism. There are organized crime statues. There are conspiracy statues. There’s plenty legal authority to address these crimes, and again they can’t even tell you how many people white supremacists and far right militants kill each year because they’re not sufficiently looking at that violence. There are some good agents who are doing good work in different offices around the country, but FBI leaders are not prioritizing this work.

Law enforcement is part of the problem. So empowering law enforcement is not the solution. Law enforcement already has the power to address violent crime. They’re choosing not to. What Congress needs to do and what the new administration needs to do is get to the bottom of why they’re choosing not to.

There’s a Justice Department policy on the books that has been there for decades that says the federal government, even though Congress passed five federal hate crimes statues, the Justice Department will defer the investigation and prosecution of hate crimes to state and local law enforcement. Find any other aspect where the FBI has jurisdiction where they just bat it away. Congress passed civil rights laws against police racism and brutality. There are laws on the books. The FBI investigates those crimes. Often, the Justice Department fails to prosecute them. The declination rate on those cases is astronomical. Why? Those are choices the Justice Department is making. That has to be addressed.

I did just want to go back to this issue of deeper collusion. Do you think it’s possible that some prior arrangement was happening within the FBI and Capitol Police? Two Capitol Police officers are now suspended, and one has been arrested for his role in the mob attack. I think more and more people are beginning to understand how and why federal law enforcement has overlooked or failed on intelligence matters when it comes to white supremacists, but many are questioning whether this breach could have resulted merely as a result of such failures alone.

Like I said, there is evidence that white supremacy and far right militancy exists in law enforcement at every level that is tolerated. I hope that the investigations that follow focus on that and to the extent any political viewpoints altered the law enforcement response, is critical to understand and address. I don’t want to predict the outcome of those investigations.

I think it’s also on a spectrum. I think it’s important not to focus on small things, and try to focus on the larger operations. We want police to deescalate violence. You know, moving the perimeter back from the original perimeter set up at the Capitol — that’s an effective technique to deescalate violence. So just because you see a police officer pulling the gate open doesn’t mean that that officer is supporting an assault on the Capitol, but rather is a tactic to reduce pressure and to focus resources on protecting the building.

How the building was so easily breached is going to be a question. Obviously, some officers fought literally for their lives to protect it, but we need to get to the bottom of whether or not there was an order not use lethal force.

I want to go back to your point about the system needing to be overhauled. You pointed out how they could have focused on violent actors who are traveling across state lines. Are there other specific ways in which you think the system should be retooled here? Do you have other ideas about how agents should focus going forward?

Absolutely yes, they have to scrap this concept of ‘See Something, Say Something’ reporting, and monitoring communities; and suspicionless surveillance has to be put aside. We’re very fortunate in this country that violent crime, and particularly political crime and political violence, are still relatively rare. For the most part, we’re a very safe and peaceful nation, but law enforcement should focus its resources where there are actual criminal activities, and having a triage that works by reasonable suspicion. That was the standard that I worked under, and I couldn’t understand why anyone would want a different one.

If a law enforcement officer doesn’t reasonably suspect somebody is going to commit a crime, why in the world would they bother them? Why in the world would they waste taxpayer resources investigating somebody they don’t even have an objective basis to suspect is doing something wrong? Because what you do is simply waste resources and create a system that’s ringing alarms that aren’t real.

Structure fires threaten lives every year, and we do a lot: We have building codes and fire alarms that are put in every building. But if you pull that fire alarm when there isn’t a fire, that’s a crime, because we understand that false alarms dull the response. Yet our national security officials are ringing false alarms constantly and patting themselves on the back about it, rather than recognizing that if you use reasonable suspicion as a method of triaging these cases, you can actually more clearly focus on actual criminal activity.

I assume when they changed the FBI’s domestic guidelines after 9/11, reducing those criminal predicates, that you’d see a lot of convictions for ancillary things. Again, terrorism is very rare, even post-9/11, so the idea that that would help identify rare events I thought was specious, but I assumed that because you’re doing this mass surveillance, you’re going to find other kinds of crime just by accident, but in fact, if you look at prosecution data, it’s actually gone down.

If you look at violent crime across the country, law enforcement clearances for violent crimes have also gone down, in particular homicide — the most serious kind of violent crime. In the last 40 years, almost 40 percent of homicides go unsolved, more than 64 percent of rapes that are reported to the police go unsolved, and we know that many people don’t report to the police because they don’t solve these crimes. There’s this idea that law enforcement is out there solving crime, but if you look at the statistics, they are not.

So why are we spending these resources going out and talking people out of a protest? And to the extent that agents are doing that at environmental protests and anti-racism and police violence protests, it’s really harassment. There’s any number of cases I could point you to where environmentalists are getting a knock at the door when they are sitting down for dinner. The FBI Joint Terrorism Task Force officers are visiting their workplace and interviewing them because they went to an environmental protest. So that’s what needs to end. Focus on the actual criminal activity and violence. That’s the way to address this crime.