Friday, May 20, 2016

2007 - A Better Solution: A New Agency - Richard A. Posner | 2008 - Book Review: Countering Terrorism: Blurred Focus, Halting Steps Richard A. Posner - by Jennifer C. Gross

Book Review

Countering Terrorism: Blurred Focus, Halting Steps 
Richard A. Posner 

(Rowman & Littlefield, 245 pp., $22.95)

Jennifer C. Gross

More than six years after the September 11, 2001 terrorist attacks, the federal government continues to respond to the jihad declared against the United States by the radical Muslim terrorist group al Qaeda. One of the nation’s most significant reforms has involved the intelligence community. Responding to concerns that the Central Intelligence Agency (CIA) failed to anticipate the attacks on the World Trade Center and Pentagon, Congress undertook an ambitious reorganization of the community in the Intelligence Reform Act of 2004 to restructure intelligence gathering, analysis, and sharing (National Commission on Terrorist Attacks 2004). Judge Richard A. Posner’s latest book on intelligence community reform, Countering Terrorism: Blurred Focus, Halting Steps, addresses what he sees as the principle challenges facing the intelligence community and suggests several appropriate measures for improvement. Countering Terrorism is the third installment of Judge Posner’s recent work on the reshaping of our intelligence analysis process (Posner 2006a, 2006b, 2005). Author of more than forty books and scores of articles pertaining to public policy, Posner is widely recognized throughout the legal community as a brilliant and prolific scholar. No less noteworthy are his opinions and criticisms regarding the role of both Congress and the Bush Administration in intel
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ligence community reform.

In Countering Terrorism, Posner attributes the pre-9/11 intelligence failures to five factors: (1) organizational limitations; (2) the structure of the U.S. intelligence community; (3) the quality of the leadership and staff in the intelligence community; (4) oversight of the community by Congress and the President; and (5) the inherent limitations of military intelligence (Posner 2007, 24). 

While he recognizes the intrinsic difficulties in mitigating some of these shortcomings (such as the limitations of intelligence), Posner advocates certain reforms of the civilian component of the U.S. intelligence system that will enhance counterterrorism measures.

His most significant proposal is the creation of a domestic intelligence agency similar to the United Kingdom’s Military Intelligence, Section 5 (MI5). Adoption of an American version of MI5 would mark a dramatic change in domestic intelligence-gathering responsibility.

Traditionally, the Federal Bureau of Investigation (FBI or Bureau) is responsible for domestic intelligence gathering and analysis (The public has historically been fearful of allowing the CIA to conduct such intelligence work).

Posner, however, believes that the FBI is an inappropriate agency for the job of collecting and analyzing domestic intelligence. 

Posner asserts that FBI’s “culture” is unsuitable for an intelligence agency. An agency’s organizational “culture”—namely the accumulated, settled body of beliefs and principles that defines an agency’s mission and that dictates the value system to which an organization demands its employees adhere—shapes and channels how the agency pursues its mission. 

Unlike the CIA, the FBI is predominantly a law enforcement agency and that focus undergirds every step the Bureau takes. The FBI primarily conducts investigations after a crime has occurred rather than pursuing suspects beforehand. Its highest priority is gathering legally admissible and ample proof of a suspect’s commission of a past crime rather than acquiring the fragile and diaphanous bits and pieces of intelligence that could reveal a larger terrorist network or plot in the making. Additionally, the FBI is inclined to view public adversarial criminal prosecutions as the natural culmination of solid investigative work rather than as a harmful and unfortunate occasion for the disclosure of intelli
gence whose value hinges on its secrecy. In contrast, the CIA would rather watch suspected terrorists in order to collect as much information as possible and pursue various covert actions to disrupt terrorist work (such as bribing or turning a participant) instead of seeking the public condemnation and punishment of a suspect at a criminal trial. For these reasons, Posner contends, the FBI continues to display a law enforcement mindset, despite FBI Director Robert S. Mueller’s efforts to redirect the Bureau toward counter-terrorism work. What the country needs, Posner argues, is to treat terrorist activities uniquely rather than as large-scale crimes and to dedicate one agency to the sole task of sniffing out domestic terrorists. He concludes that the FBI, after seventy-plus years of focusing on catching felons, cannot hope to reinvent itself for that job. 

Posner highlights cultural differences by describing federal actions toward a terrorist cell based in Lackawanna, New York, in 2002. The Justice Department decided to identify and arrest the cell’s known members and quickly thereafter seek criminal prosecutions instead of learning more about the terrorist ring, its activities, and how it operated. These decisions stemmed from the Department’s preference for law enforcement over intelligence-gathering. Had the CIA instead managed the investigation, Posner argues, the government would likely have allowed the cell to remain free while attempting to infiltrate the group in order to learn more about its role in al Qaeda’s global network. Posner attributes the difference to the FBI’s focus on the short-term pursuit of an identifiable but small-sized benefit (e.g., disruption of one cell and prevention of its crimes) as opposed to the CIA’s focus on the longterm pursuit of information regarding an unknown large-scale threat to national security (e.g., al Qaeda’s acquisition of nuclear or biological weapons). The FBI’s strategy, Posner believes, is appropriate for ordinary crimes but not for al Qaeda’s intentions, which include the murder of thousands of civilians, the destruction of the American way of life, and the toppling of the federal government (Posner 2006c). Throughout Countering Terrorism, Posner attributes the pre-9/11 intelligence failure to the rift between the FBI and the CIA. In addition to
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the clash in organizational cultures, there was also a lack of information sharing. Although the USA PATRIOT Act contributed to dismantling “the wall” that hindered information sharing between law enforcement and intelligence entities, Posner advocates for greater collaboration with state and local entities (PL 107-56, Sec. 218).

In the absence of federal leadership in coordinating intelligence with state and local entities, local police departments have begun creating their own intelligence units. For example, the New York City Police Department (NYPD) was the first local police department in the country to establish its own domestic intelligence unit— an act Posner identifies as “a striking vote of no confidence in the FBI...” (149). The growth of such local intelligence units is valuable but uncoordinated actions by various federal, state, and local agencies not only wastes valuable resources but also undermines the federal government’s effort to manage intelligence work. According to Posner, cooperation is essential if antiterrorism work is to be successful. 

Recognizing that civil libertarians may be wary of his proposals, Posner attempts throughout his book to assuage their concerns. He argues that if a domestic intelligence service were created, upholding civil liberties—particularly those of Muslims living in the United States—would be paramount. While Posner’s statements add to his credibility in presenting a balanced argument, his efforts are unlikely to convince civil libertarians. Posner himself concedes that civil libertarians are not so much concerned with the number of agencies collecting domestic intelligence as they are with the fact that government entities do it at all. It is likely that the tradeoffs between security and civil liberties will ultimately be refereed by the courts (Posner 2006b). Posner’s intelligence reform proposals are commendable, but his review is self-admittedly incomplete because it lacks an analysis of the present state of intelligence activity. In the introduction he confesses, “…no doubt my lack of insider knowledge limits my ability to address issues such as the insertion and control of undercover agents abroad and the strengths and limits of technical intelligence” (Posner 2007, ix). This omission, while unavoidable due to the highly sensitive nature of these issues, is significant. The reader cannot discern whether Posner’s recommendations would en
book reVieW: countering terroriSm 109
hance national security because his book neglects to describe the extent to which pre-9/11 intelligence failures were attributable not to organizational deficiencies but to operational mistakes, a shortage of foreign language– speaking analysts, the inability to penetrate al Qaeda cells, or simply to the fact that no defense is perfect. Trying to decide whether to endorse his recommendations for the reorganization of the intelligence community without knowing how well U.S. field personnel are acquiring pertinent data about al Qaeda is like trying to decide whether to hire a new general manager for a baseball team without knowing whether the pitching staff is worth keeping. Nonetheless, Posner’s book is a timely contribution to the debate over the proper organization of the intelligence community.

Posner makes a powerful case, especially in his recommendation that the United States use MI5 as a paradigm for successful domestic intelligence units. Regardless of political perspective, the reader will leave Countering Terrorism recognizing that the status quo is ineffective. Posner makes it quite clear that in its present state, the intelligence system is plagued with design problems, clashes in organizational cultures, and bureaucratic hurdles. Countering Terrorism effectively raises awareness of these challenges within the intelligence community and government at large and suggests thoughtful reforms on this all-important issue.

References
National Commission on Terrorist Attacks Upon the United States. 2004. The 9/11 Commission Report. Posner, Richard A. 2007. Countering terrorism: Blurred focus, halting steps New York: Rowman & Littlefield. _____. 2006a. Uncertain shield: The U.S. intelligence system in the throes of reform. New York: Rowman & Littlefield. _____. 2006b. Not a suicide pact: The constitution in a time of national emergency. Oxford University Press. _____. 2006c. The job the FBI can’t do. Hoover Digest (Winter). http://

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by JC Gross - ‎2008 - ‎Related articles
Judge Richard A. Posner's latest book on intelligence community re- form, Countering ... Bureau of Investigation (FBI or Bureau) is responsible for domestic intel-.
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A Better Solution: A New Agency

Chapters 1 and 2 of this monograph demonstrated that the FBI’s
intelligence failures have been serious, are inherent in confiding
domestic intelligence responsibility to a criminal investigation
agency, and will not be cured by the consolidation of the Bureau’s
three intelligence-related divisions. In elaborating these points I
presented most of the reasons for creating a domestic intelligence
agency outside the FBI. The Bureau is well aware of these reasons,
and its resistance to the proposal for consolidation was due
in part to fear that it might be the prelude to lifting domestic
intelligence right out of the Bureau, which would be easier to do
with all the Bureau’s intelligence assets in one place. The fear
may be realistic—recall how the security service of the Royal
Canadian Mounted Police was lifted out of the RCMP and made
its own separate agency. But it would be a mistake to create a
U.S. domestic intelligence agency in that fashion. Apart from
points made earlier, we don’t have enough domestic intelligence
officers. We need more (and better), and forming a new agency
would be an opportunity to obtain them. In contrast, rapid expansion
of the FBI in the midst of its reorganization would be a
recipe for disaster.
Although the total personnel of the five federal agencies with
primarily domestic intelligence responsibilities (the FBI, the two
intelligence agencies in DHS, and the intelligence units of the
Treasury and Energy Departments) is not a published figure, it
probably does not exceed 7,000, of whom probably no more than
5,000 are in the FBI.7 Remarkably, MI5, though tiny (2,000
employees), is almost 30 percent the size of the U.S. domestic
intelligence community, although the United States has more
than four times the population of the United Kingdom and much
less control over its borders yet faces graver, more varied, and
more numerous threats. Even more striking is the fact that the
Canadian Security Intelligence Service also has 2,000 employees.
Although its population is much smaller than the United Kingdom’s,
its much greater land area is thought to require additional
staff;8 the inhabited land area of the United States is much
greater than that of Canada.
Creating a new agency without displacing the intelligence
element of the FBI would secure any efficiencies that FBI intelligence
may be able to achieve by virtue of the Bureau’s relations
with local police forces, its experience in terrorist prosecutions—
for that matter, its experience, checkered as it is, in national
security intelligence—and the occasional overlaps of terrorist
activity with ordinary crime. The need is to supplement the
Bureau’s intelligence components with a new agency that will
have a distinctive focus and culture, not to break up the Bureau.
But although the FBI should continue to play a major role
in federal intelligence liaison with local police, a domestic intelligence
agency could play an equal or even more important role.

The rivalries among law enforcement agencies are acute because
of competition for funds, overlapping authority, different cultures,
the FBI’s traditional hauteur, and fear of a rival agency’s
“stealing” one’s cases. Many local law enforcers feel deserted by
the federal government in general, and the FBI in particular, in
regard to national security intelligence. The Bureau does not treat
them as its partners or even its customers. FBI agents have been
known to brush off attempts by local police, and even by other
federal officers, to obtain the Bureau’s aid in intelligence matters.

9
I am told that the FBI turned down an offer of a simple
computer-communications system that would have linked the
Joint Terrorism Task Forces directly to squad cars so that police
officers could send and receive timely information concerning
possible terrorist activities.
A domestic intelligence agency not linked to any law enforcement
agency would stand above the fray and be trusted as an
honest broker—especially if it were authorized to reimburse some
of the intelligence-related costs of state and local law enforcement
agencies, such as costs of information technology, of training
intelligence officers, and of paying informants. In effect, the
domestic intelligence agency would be buying intelligence data
from the many police departments that, with proper incentives,
can gather abundant data. The agency would be in a good position
to take the lead in creating the coordinated nationwide intelligence
network that we need and don’t have.
...
The idea of creating a U.S. domestic intelligence agency is
commonly called the “MI5 solution.” MI5 is the best known of
the foreign domestic intelligence agencies, and the United Kingdom
is our closest ally. But a better model for a U.S. domestic
intelligence agency from a public-relations standpoint (and the
importance of good public relations for a domestic intelligence
agency should not be underestimated, given civil liberties concerns
and FBI opposition) is the Canadian domestic intelligence
agency. MI5, throughout most of its long history, which began
in 1909, operated without any judicial control. That would be
unthinkable in the United States but seemed natural in the
United Kingdom, which had no tradition of separation of powers.
Violations of civil liberties were common.10 Merely the use of a
military acronym for a domestic intelligence agency (“MI” stands
for “military intelligence”)—even though MI5 has long been a
civilian agency—strikes an ominous note. The Canadian Security
Intelligence Service (CSIS),11 though modeled on MI5, does not
have these drawbacks. It has no military origins or overtones and
is subject to an elaborate set of controls12 designed to prevent it
from infringing civil liberties.
...
 The Department of Homeland Security is the logical
choice. Locating the agency there would conform to the practice
of foreign nations. 

For example, MI5 reports to the Home Secretary,
who corresponds to our Secretary of Homeland Security,
and the director of the Canadian Security Intelligence Service
reports to the Minister for Public Safety and Emergency Preparedness.
The planned reorganization of DHS announced recently
by Secretary Chertoff will, as we’ll see, simplify the creation of
a domestic intelligence agency within the department.
Locating the agency in DHS would have the following advantages
besides interposing an official who is not an intelligence
official between the agency and the President:
1. Unlike the FBI, DHS has no J. Edgar Hoover legacy. This
should further reassure civil libertarians.
2. The coordination of DHS’s immense information
sources—including Immigration and Customs Enforcement, the
Transportation Security Administration, the Border Patrol, and
the Secret Service—would be facilitated. These agencies take in
an enormous amount of information every day, much of which
may have value to an intelligence agency. A domestic intelligence
agency within DHS would have readier access to this information
than an outside agency would.
3. The agencies mentioned in the preceding paragraph are
all “prevention” agencies, just as DHS as a whole is a prevention
department. Intelligence fits better with prevention than with
prosecution. Think how closely related inspecting cargo for radioactivity
(prevention) is to collecting information on persons who
have tried to obtain radioactive materials for questionable purposes
(intelligence). The preventers will be obtaining information
that the intelligence agency wants, and vice versa.


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