RAMANAM
In the Name of The Father, and of The Son and of The Holy Spirit, Amen.
Time to Rethink the FBI
By RICHARD A. POSNER
Wall Street Journal
March 19, 2007; Page A13
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.
It is more than a decade since the then director of the FBI, Louis Freeh, tried to make the bureau take the terrorist threat to the United States seriously. He failed. His successor, the current director, Robert Mueller, has tried harder than Mr. Freeh, and has made some progress, but not enough. The cause lies deep in the bureau’s organizational culture. 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).
The bureau lacks the tradition, the skills, the patience, the incentive structures, the recruitment criteria, the training methods, the languages, the cultural sensitivities and the career paths that national-security intelligence requires. All the bureau’s intelligence operations officers undergo the full special-agent training. That training emphasizes firearms skills, arrest techniques and self-defense, and the legal rules governing criminal investigations. None of these proficiencies are germane to national-security intelligence. What could be more perverse than to train new employees for one kind of work and assign them to another for which they have not been trained?
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.
The bureau had been able to plant an informant in the group. Yet as soon as it had enough evidence to prove a criminal conspiracy, it pounced. Because the group had no money or backers (except the FBI’s informant!) and no skills or experience, and had been penetrated, it was not an imminent threat, so there was no urgency about arresting its members. The group had wanted to get in touch with foreign terrorists but had been unable to do so.
The informant might have helped them do so — might even have helped them become part of a serious terrorist network, enabling the bureau to ascertain the network’s scope and membership, methods and tradecraft, even goals and specific plans. The opportunity to exploit the penetration in this fashion was lost by the arrests — about which the Attorney General boasted to an extent that, given the ineptness of the defendants, evoked ridicule.
A senior Justice Department official said: “We can’t afford to wait . . . [The suspects in Miami] were of significant concern, and we’re not going to allow them to run into somebody who has the means to carry out what they were talking about.”
That is the wrong attitude. Finding a “somebody who has the means” to carry out a terrorist attack is more important than prosecuting plotters who pose no immediate threat to the nation’s security. The undiscovered “somebody” is the real threat. Small fry are easily caught, but upon their arrest any big shots who might be linked to them scatter. The arrests and prosecutions serve mainly to alert terrorists to the bureau’s methods and targets, as well as to bolster its arrest statistics and provide fodder for its public affairs office.
Experts on terrorism, noting the fortunately thwarted terrorist plots of British and Canadian citizens (thwarted in major part through the efforts of the British and Canadian domestic-intelligence services), warn of the homegrown terrorist threat against the U.S. Against that threat, most of our security apparatus is helpless. When a foreign terrorist wants to strike us here, our security forces have three bites at the apple: seize him abroad, seize him at the border, and if all else fails, seize him inside the U.S. In the case of U.S. citizen terrorists, there is only the one bite; and the FBI does not have the right set of teeth.
Improving domestic intelligence is not a partisan issue. The critics of the FBI’s performance include former members (among them the co-chairmen) of the bipartisan 9/11 Commission; the advocates of creating a separate agency include Democratic Congressman Rahm Emmanuel.
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.
The Director of National Intelligence has not evaluated the FBI’s performance. Nor has he explored the feasibility and desirability of creating a separate agency. The FBI staggers and stumbles; the managers of the intelligence community are content to avert their eyes from the unedifying spectacle.
Mr. Posner, a federal circuit judge and a senior lecturer at the University of Chicago Law School, is the author of “Uncertain Shield: The U.S. Intelligence System in the Throes of Reform” (Rowman & Littlefield, 2006).
AMDG
