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Remaking Domestic Intelligence
By Richard A. Posner
Hoover Institution PressCopyright © 2011 Board of Trustees of the Leland Stanford Junior University
All rights reserved.
"Domestic national security intelligence" ("domestic intelligence" for short) is intelligence concerning threats of major, politically motivated violence, or of equally grievous harm to national security, mounted within the nation's territorial limits, whether by international terrorists, homegrown terrorists, or spies or saboteurs employed by foreign nations. The 9/11 attacks reflected a failure of domestic intelligence, having been mounted from within the United States by terrorists who had been in this country for months — some intermittently for years.
The danger of terrorist acts committed on the soil of the United States has not abated despite strenuous efforts to improve homeland security. The hostility of significant segments of the vast Muslim world (including large and restive Muslim minorities in such European nations as the United Kingdom, France, and the Netherlands) toward the United States is unabated. And weapons of mass destruction — atomic bombs, dirty bombs (conventional explosives that scatter radioactive material), chemical agents, lethal pathogens, and deadly-when-abused industrial materials — are ever cheaper and more available. Their cost will continue to decline, and their availability to increase, faster than the defensive measures planned or deployed at present. Nor can it be assumed that the threat of terrorism with weapons of mass destruction comes only from the Muslim world, or indeed only from foreign groups or nations. The Unabomber, Timothy McVeigh, the FALN (a violent Puerto Rican separatist organization), the Weather Underground, and the Black Panthers are historical examples of homegrown U.S. terrorists whose successors may wield enormously greater lethal power.
It is difficult to imagine any major attack on the United States (other than by an enemy nation) that would not have a domestic aspect. Even an attack that consisted of exploding a ship full of ammonium nitrate (or carrying a dirty bomb or a nuclear bomb) in a U.S. port would take place within the defensive perimeter of the Coast Guard, whose intelligence service is a part of the federal intelligence community, and would undoubtedly have been prepared with the help of people living in the United States, if only because the attackers would need information about port security.
The meaningfulness of "domestic intelligence" as a category might be questioned on the ground that borders have no significance when the main threat to national security comes from international terrorism. Certainly domestic and foreign intelligence must be closely coordinated. But there are enough differences to justify preserving the distinction. Domestic intelligence presents civil liberties concerns that are absent or attenuated when intelligence agencies operate abroad, since the Constitution and laws of the United States generally do not have extraterritorial application. And homegrown terrorists — terrorists with no personal, familial, ethnic, or political ties to a foreign country — are a major potential threat in an era of weapons of mass destruction. Recruitment, training, deployment, and security requirements are also different for intelligence officers operating inside and outside national borders. Surveillance methods are apt to differ too. And domestic intelligence officers must work closely with the nation's public and private police and protection forces to create a nationwide network of eyes and ears.
Despite its importance to national security, domestic intelligence is the weakest link in the U.S. intelligence system. The proximate cause is the entrustment of domestic intelligence to the FBI; a more remote cause is that Americans tend to disregard foreign experience. The final report of the National Commission on Terrorist Attacks Upon the United States (the 9/11 Commission) cast only a cursory glance at foreign intelligence systems, even though some of them, notably the British, French, and Israeli, are well regarded. These are also nations that have a longer experience dealing with terrorism than the United States. Each has a domestic intelligence agency that is separate from its national police force, its counterpart to the FBI, and has no power of arrest or other law enforcement powers. In Britain the domestic intelligence agency is called the Security Service, better known as MI5; in France, the Direction de la Surveillance du Territoire (DST); in Israel, Shin Bet. Examples of similar agencies in other nations are the Bundesamt für Verfassungsschutz (BfV) in Germany, the Public Security Investigation Agency in Japan, the Australian Security Intelligence Organisation, the New Zealand Security Intelligence Service, the Intelligence Bureau in India, the National Intelligence Agency in South Africa, and — an agency that I shall especially emphasize as a possible model for a U.S. domestic intelligence agency — the Canadian Security Intelligence Service. There is an international consensus that a nation's intelligence system should include a domestic intelligence capability that is separate from the police. The consensus includes the nations of "old Europe" admired by American liberals who are in the fore-front of opposition to emulating the European approach to domestic security.
Although the United States is an outlier in not having such an agency, the 9/11 Commission gave the back of its hand to proposals that we create one. Members and staff of the commission visited the director-general of MI5, who told them she "doubt[ed] that such an agency could operate under the restrictions of the U.S. Constitution and the traditionally higher American emphasis on civil liberties and the right to privacy. 'Even the Brits think it wouldn't work here,' 9/11 Commission Chairman Thomas Kean said in a news conference shortly after the commission issued its report." To defer to the opinion of a foreign official concerning the limits that U.S. law and custom would place on a domestic intelligence service makes little sense — and anyway all that the director-general may have meant was that a U.S. service couldn't be a carbon copy of her agency because the legal framework would be different. It does not follow that the difference (which is anyway slight now that the United Kingdom has signed the European Convention on Human Rights) would render a U.S. agency ineffectual.
The 9/11 Commission's rejection of the idea of a U.S. counterpart to MI5 was tentative. It said a domestic intelligence agency wasn't needed if the commission's other recommendations were adopted. Many of them were whittled down by the Intelligence Reform Act and Terrorism Prevention Act of 2004, the legislative response to the 9/11 Commission's report. Recommendations for reorganizing congressional oversight of intelligence, to which the commission attached great importance, were ignored. So we don't know what the commission would think of the idea today — or at least we didn't know until the commission decided to reconstitute itself (albeit as a private, no longer a governmental, commission, the 9/11 Discourse Project). The commissioners have been so taken aback by the FBI's inability to rectify the errors identified in the commission's report of July 2004 that they are now wondering whether the creation of a separate domestic intelligence agency mightn't be the right course of action after all.
Amid mounting criticisms, which I summarize below, of the FBI's continuing inability to perform the domestic intelligence role adequately, the President in June of this year ordered the Bureau to build a halfway house to a true domestic intelligence agency by combining its three divisions that have intelligence responsibilities into a new unit to be called the "National Security Service" (NSS). Because two of these divisions have law enforcement as well as intelligence duties (nor is it even clear that the intelligence activities of the new entity will be limited to national security intelligence), it will not be a true domestic intelligence agency, quite apart from its being lodged in a police department.
The United States may be right to refuse to create a domestic intelligence agency separate from the police and other countries wrong (or right for them but not for us). We are larger and more diverse, have a more robust civil liberties tradition, and face a wider range of threats. But the fact that we are out of step should give us pause. Although we are different from other countries, they are also different from each other (India versus France or Canada, for example), yet they agree on the need to separate domestic intelligence from law enforcement. It is no surprise, therefore, that criticisms of their approach that are based on the supposedly unique characteristics of the United States turn out to be superficial. One such criticism is that "if the Homeland Security Department and 170,000 people to be integrated is going to take a couple of years, standing up a brand new domestic intelligence agency would take a decade." Another is that "We're not England. We're not 500 miles across our territory. We have thousands of miles to cover. Would you propose to create an organization that had people all over the United States, as the FBI does?" The first criticism overlooks the fact that creating a domestic intelligence agency cannot be compared with the creation of the Department of Homeland Security, a mega-agency that dwarfs the entire domestic intelligence community. We'll see later that the total number of federal employees exclusively engaged in domestic intelligence probably does not exceed 7,000, which is fewer than 4 percent of the number of employees of DHS. In addition, it is more difficult to consolidate a number of heterogeneous agencies into a single department than to create a new agency that, as outlined in chapter 3 of this monograph, might have as a few as 1,500 employees.
As for the second criticism, although we are indeed not England, a domestic intelligence agency would not require much field staff because its creation would not entail removing staff from the FBI. The Bureau would continue to play a large role in domestic intelligence.
The critics are correct that other nations tend to be more centralized than the United States. The United Kingdom, for example, has only 56 police forces; the United States has more than 20,000. Domestic intelligence has to liaise with local law enforcement, whose personnel may turn up clues to the existence of terrorist or prototerrorist gangs and to the identity of members, sympathizers, and foreign contacts. Also, terrorists sometimes commit quite ordinary crimes to finance their terrorist activities — bank robberies are a traditional example — though this has not been characteristic of recent terrorist activity in this country.
It is easier for thousands of local police departments, many quite small, to communicate with one federal agency than with two. But, at most, all that this would require is that in the division of responsibilities among agencies conducting domestic intelligence, responsibility for liaison with local police forces remain with the FBI. (Even before September 11, 2001, the FBI had established Joint Terrorism Task Forces with local law enforcement authorities; these task forces now exist in scores of cities.) But the qualification "at most" deserves emphasis. Because the FBI's relations with local authorities in regard to national security intelligence are strained, leaving the liaison responsibility entirely to the FBI would be a mistake.
THE FBI'S FAILURES
The FBI is not the answer to the problem of domestic intelligence. As demonstrated by the 9/11 Commission's report, the Bureau turned in the most lackluster performance of any agency in the run-up to 9/11, even though it had (and has) the primary responsibility among police and intelligence services for preventing terrorist attacks on the nation from within. A request by one of the FBI field offices to apply for a warrant to search the laptop of Zacarias Moussaoui (a prospective hijack pilot) was turned down. A prescient report on flight training by Muslims in Arizona was ignored by FBI headquarters. There were only two analysts on the Bin Laden beat in the entire Bureau. Director Louis Freeh's directive that the Bureau focus its efforts on counterterrorism was ignored.
Concerning the Moussaoui episode, Senator Richard Shelby, the vice chairman of the Senate Select Committee on Intelligence, has pointed out that "FBI Headquarters actually prohibited intelligence investigators in Minneapolis from notifying the Criminal Division at the Justice Department about the Moussaoui situation, and prohibited agents from pursuing a criminal search warrant against him." "The Bureau did not know what information it possessed, it did not approach this information with an intelligence analysis mindset, and it too often neglected to inform other agencies of what it did know or believe." Senator Shelby concluded that,
though still renowned for its criminal investigative competence, the FBI has shown a disturbing pattern of collapse and dysfunction in its counterintelligence and counterterrorism functions. These recurring problems have, in turn, led many observers — and Members of Congress — increasingly to lose faith in the Bureau's ability to meet the national security challenges it faces, despite a series of internal reorganizations over the past several years that have failed to rectify the situation.
In light of the FBI's dismal recent history of disorganization and institutional incompetence in its national security work, many of us in Congress have begun to consider whether it might better serve the interests of the American people to separate the counterintelligence and counterterrorism function of the Bureau into an entirely separate organization — one that would be free of the structural, organizational, and cultural constraints that have greatly handicapped the FBI's ability to conduct the domestic intelligence work our country depends upon it to perform.
The reasons the Senator gave for the FBI's dysfunction as an intelligence agency are illuminating:
Fundamentally, the FBI is a law enforcement organization: its agents are trained and acculturated, rewarded and promoted within an institutional culture the primary purpose of which is the prosecution of criminals. Within the Bureau, information is stored, retrieved, and simply understoodprincipally through the conceptual prism of a "case" — a discrete bundle of information the fundamental purpose of which is to prove elements of crimes against specific potential defendants in a court of law.
The FBI's reification of "the case" pervades the entire organization, and is reflected at every level and in every area: in the autonomous, decentralized authority and traditions of the Field Offices; in the priorities and preference given in individual career paths, in resource allocation, and within the Bureau's status hierarchy to criminal investigative work and post hoc investigations as opposed to long-term analysis; in the lack of understanding of and concern with modern information management technologies and processes; and in deeply-entrenched individual mindsets that prize the production of evidence-supported narratives of defendant wrongdoing over the drawing of probabilistic inferences based upon incomplete and fragmentary information in order to support decision-making. ... Far from embracing probabilistic inference, "knowledge" in a law enforcement context aspires — in its ideal form at least — not only to certainty but also to admissibility, the two essential conceptual elements of being able to prove someone guilty beyond a reasonable doubt in a court of law. Within such a paradigm, information exists to be segregated and ultimately employed under carefully-managed circumstances for the single specific purpose for which it was gathered.
After 9/11 the Bureau, under a new director, Robert Mueller, vowed to do better, but his efforts have fallen far short of success. In part because the Bureau has been plagued by excessive turnover in the executive ranks of its intelligence and antiterrorism sections, and even more so in its information technology staff, it took the Bureau two years after 9/11 just to devise a plan to reform its counterterrorism program. We know now that the plan was a failure; for otherwise the President would not be forcing a reorganization on the Bureau.
Three and a half years after acknowledging in the wake of 9/11 the inadequacy of its information technology for intelligence purposes, the Bureau abandoned a $170 million "Virtual Case File" project intended to enable FBI agents to input intelligence data into their computers without having to undergo "a cumbersome, time-consuming process of preparing a paper record of that information, seeking the necessary approvals, then uploading the document into an existing database." Because the FBI chose to develop Virtual Case File noncollaboratively, the federal and many of the state agencies with which it works delayed upgrading their own systems in the hope that by waiting until VCF was up and running they could configure their own systems to be compatible with the Bureau's.
Excerpted from Remaking Domestic Intelligence by Richard A. Posner. Copyright © 2011 Board of Trustees of the Leland Stanford Junior University. Excerpted by permission of Hoover Institution Press.
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