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March 19, 2007

Time To Rethink America's Domestic Intelligence Paranoia

In today's Wall Street Journal, Richard Posner has an excellent piece on the recent revelation that the FBI may have improperly issued national security letters. Those eager to blame the Bureau may wish to pause, however, before they rush to judgment and define the problem:

The FBI came under heavy criticism last week when it was reported that the agency had failed properly to supervise the issuance of national security letters, a form of administrative subpoena used in terrorist investigations. The bureau, it turns out, was unable even to determine how many such subpoenas it has issued.

Just weeks earlier, it was discovered that the FBI had been misreporting the statistics that it uses to track its intelligence activities. The bureau attributed that lapse to its continued struggle -- five and a half years after the 9/11 attacks -- to master modern information technology. The FBI also inflates its counterterrorist statistics by defining terrorism to include the acts of obnoxious but minor political criminals, such as white supremacists, animal-rights extremists and makers of idle (but frightening) phone threats.

Is it the case that the FBI is "incapable of effective counterterrorism," as an editorial in this newspaper wondered? Does the country need "to debate again whether domestic antiterror functions should be taken from the FBI and given to a new agency modeled after Britain's MI5"?

The answer to both questions is yes.

But is the problem really FBI inefficiency/incompetence? Or is it, more accurately, a question of using the wrong tool for the job? Unsurprisingly, Posner has an opinion:

The FBI is a detective bureau. Its business is not to prevent crime but to catch criminals. The Justice Department, of which the FBI is a part, knows only one way of dealing with terrorism, and that is prosecution. (Mr. Mueller is a former prosecutor.)

For prosecutors and detectives, success is measured by arrests, convictions and sentences. That is fine when the object is merely to keep the crime rate within tolerable limits. But the object of counterterrorism is prevention. Terrorist attacks are too calamitous for the punishment of the terrorists who survive the attack to be an adequate substitute for prevention.

Detecting terrorist plots in advance so that they can be thwarted is the business of intelligence agencies. The FBI is not an intelligence agency, and has a truncated conception of intelligence: gathering information that can be used to obtain a conviction. A crime is committed, having a definite time and place and usually witnesses and often physical evidence and even suspects. This enables a criminal investigation to be tightly focused. Prevention, in contrast, requires casting a very wide investigative net, chasing down ambiguous clues, and assembling tiny bits of information (hence the importance of information technology, which plays a limited role in criminal investigations).

America has long been hostile to what many view as 'domestic spying', but it wasn't always that way. After Pearl Harbor, Harry Truman recognized the need for heightened vigilance and established the Central Intelligence Agency. For two decades there was little legislative oversight over domestic intelligence gathering, but in the 1970s, alarmed by reports of rogue CIA activity the pendulum swung the other way and the Church and Pike Committees sought to reign in what Truman had wrought. This climate of hostility to home-grown intelligence persisted until 2001 when America again experienced an attack on our own soil, reinforcing the need for domestic intelligence gathering that virtually every large democratic nation except the United States accepts as a matter of course. Unfortunately, the brief recognition that we continue to be ill-prepared to defend ourselves from terrorists didn't last much longer than it took the dust to settle from the collapse of the World Trade Center. Almost six years after 9/11, we still haven't gotten it right:

Every major nation (and many minor ones), except the United States, concluded long ago that domestic intelligence should be separated from its counterpart to the FBI. Britain's MI5 is merely the best-known example. These nations realize that if you bury a domestic intelligence service in an agency devoted to criminal law enforcement, you end up with "intelligence-led policing," which means orienting intelligence collection and analysis not to preventing terrorist attacks but to assisting in law enforcement.

MI5 and its counterparts in other nations are not law-enforcement agencies and do not have arrest powers. Their single-minded focus is on discovering plots against the nation. Knowing that arrest and prosecution should be postponed until a terrorist network has been fully traced and its methods, affiliates, financiers, suppliers and camp followers identified, they do not make the mistake that the FBI made last year in arresting seven Muslims in Miami on suspicion of plotting to blow up buildings there, along with the Sears Tower in Chicago.

Civil libertarians worry about abuses of domestic intelligence. But an agency that had no powers of arrest or prosecution, and that conceived its primary role to be to prevent the alienation of Americans who have religious or family ties to nations that harbor terrorists, rather than to run up arrest statistics, would be less likely than the FBI to engage in the promiscuous issuance of administrative subpoenas.

...In 2004, Congress created the post of Director of National Intelligence, hoping to plug the gaps in our multi-agency intelligence system. The biggest gap is domestic intelligence, yet the FBI director and his staff have largely ignored it. They have no background in domestic intelligence. No senior official is assigned full time to it. So turf wars between the FBI and the Department of Homeland Security have been allowed to rage, and the nation's hundreds of thousands of local police have not been knitted into a comprehensive national system of domestic intelligence collection.

We need an agency that will integrate local police and other information gatherers (such as border patrol police, customs officials and private security personnel) into a comprehensive national intelligence network, as MI5 has done in Britain -- and as the FBI has failed to do here, in part because of deeply rooted tensions that have long inhibited cooperation between the bureau and the rest of the law enforcement community. The bureau does not want the local police to steal its cases, and vice versa. Moreover, it is a self-consciously elite institution whose stars -- the special agents -- look down on local police and are reluctant to share information with them. Lacking police powers or a law enforcement function, a domestic intelligence agency separate from the FBI would be an honest broker among all the institutions that gather information of potential significance for national intelligence.

America's more enlightened deep thinkers eagerly cite the value of learning from the international community yet, like hummingbirds, they seem astonishingly finicky about which examples they choose to sample from. As no enumerated Constitutional right to privacy yet exists outside the perfervidly penumbral pratings of the pro-choice crowd, this seems an area in which we could readily open ourselves to the vaunted "international perspective" without doing violence to the literal text of our own Bill of Rights. Now, if we can just get the advocates of our living, breathing Constitution to take their own oft-given advice.

Posted by Cassandra at March 19, 2007 05:44 PM

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What, precisely, is your point/proposal? And does it conflict with the Constitution (pesky text, that)? And if so, what's the solution?


Posted by: dgf at March 19, 2007 10:10 PM

I thought that was obvious from the post, dgf.

The FBI needs to be replaced/enhanced with something more like MI5 - an arm with some domestic intelligence capabilities. You can read the post, I'm not going to retype everything Posner suggested.

The Constitutional aspect is obvious: domestic surveillance and the issue of how that will be handled. I brought that up with the Constitutional right to privacy, and it will be up to Congress to decide if they want to amend some of our current statutes but there is no real Constitutional impediment, contrary to the 4th amendment hysteria you read many places.

Posted by: Cassandra at March 19, 2007 10:48 PM

The issue of surveillance, especially if Posner's suggestion is taken and there is a bifurcation of intelligence and police powers such as arrest and prosecution, will immediately be pounced on by groups such as the ACLU citing 'privacy concerns', so Congress is going to have to weigh that against security. My guess is that they'll duck the issue unless we're attacked again, then overreact as they did with the Patriot Act, then have a Monday morning attack of the jitters and try to pretend it was date rape :p

Posted by: Cassandra at March 19, 2007 10:58 PM

The US Military has been performing domestic intelligence to a certain degree for several years now. Like MI5, they can't make arrests, etc.

The group doing it, Counterintelligence Field Activity (CIFA), was established in 2002 by DoD directive 5105.67.

Posted by: Grim at March 20, 2007 09:29 AM

I didn't know that. Good point. There's another good parallel in that the military carries out warrantless searches all the time, but they do this for the purpose of stopping behavior, not for prosecution. This separation of the power to search from the power to use seized materials in a court of law against the accused is what protects the accused.

Posted by: Cassandra at March 20, 2007 09:33 AM

I believe I read that all this military intel is now coming under heightened scrutiny Grim as being horribly, horribly wrong/bad, and is supposed to be called off or severely curtailed.

Posted by: Cassandra at March 20, 2007 09:34 AM

Those that scream the loudest about the "erosion of civil liberties" are ironically those that scream "why didn't the gov't stop this attack before it happened" the most hysterically after an attack occurs.

It leads me to believe that they simply enjoy the act of screaming.

Posted by: daveg at March 20, 2007 10:29 AM

[Cass] --

It must be nice living in a world where everything is so obvious. No constitutional issue; obvious. What the proposal actually amounts to; obvious. Plame; obviously not a covert agent. . . .

I dunno. I tend to find that the devil tends to reside in the details... An old fashioned concept. I know. One essentially conservative in nature. Yes'm. And so it goes.

Posted by: dgf at March 20, 2007 05:47 PM

dgf, it may surprise you to learn that I have a job.

I've spent weeks patiently and politely responding to questions of yours where the answers were right in my previous comment, but you hadn't bothered to read it carefully. So no, I'm not going to go back and paste it in again.

This isn't a doctoral dissertation. It's a short post. What he was proposing was right in Posner's article for you to read - there was no reason for me to find it FOR you when you ought to be perfectly capable of doing so yourself. And if you do assert a Constitutional conflict, you are free to do so, and I'll be happy to refute that assertion.

But you did not do that, did you?

Instead you appear to want me to defend against some argument you are too lazy to make. Forgive me if I have better things to do.

Posted by: Cassandra at March 20, 2007 06:03 PM

Trackbacked by The Thunder Run - Web Reconnaissance for 03/20/2007
A short recon of what’s out there that might draw your attention.

Posted by: David M at March 20, 2007 06:18 PM

LOL. You miss my point. So badly, that I think it must be deliberate.

Have a good day (job).

Posted by: dgf at March 22, 2007 07:04 AM

The FBI was chastised in the 70's because its intelligence gathering left the domain of criminal investigations. Why giving this authority to someone else would prevent abuse it completely unclear.

Posted by: mara at March 22, 2007 10:17 AM

I wasn't talking about why the FBI was chastised. That has nothing to do with the subject of this post. Improper use law enforcement is not something that is being contemplated here, unless you are reading something into the article that is not there.

I was referring to the curtailing of CIA activities in the United States - a completely different matter.

Posted by: Cassandra at March 22, 2007 10:35 AM

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