M.N.: THE TIME BOMB OF TERRORISM KEEPS TICKING, THE BUREAU KEEPS FIGHTING THE TURF WARS AND PROTECTING ITS VESTED SELF-INTERESTS: MONEY AND POWER. IT LOOKS LIKE IT IS THE MAIN ISSUE THEY CARE ABOUT. NOTHING CHANGED IN ABOUT TEN YEARS SINCE THESE ARTICLES WERE WRITTEN AND THE CONTINUING TERRORIST ATTACKS, LARGE AND SMALL, INCLUDING THE SAN BERNARDINO, IS THE BEST PROOF OF IT. | Time to Rethink the FBI - By RICHARD A. POSNER
M.N.: The time bomb of terrorism keeps ticking, the Bureau keeps fighting the turf wars and protecting its vested self-interests: money and power. It looks like it is the main issue they care about. Nothing changed in about ten years since these articles were written and the continuing terrorist attacks, large and small, including the San Bernardino, are the best proof of it.
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- COMMENTARY
Time to Rethink the FBI
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).
Countering Terrorism: Blurred Focus, Halting Steps (Hoover Studies in Politics, Economics, and Society): Richard A. PosnerA Ticking Time Bomb: Counterterrorism Lessons from the U.S. Government's Failure to Prevent the Fort Hood Attack
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In Domestic Intelligence Gathering, the FBI Is Definitely on the Case
| Washington, D.C.March 21, 2007 |
Judge Posner repeats in his March 19 op-ed commentary "Time to Rethink the FBI" his now longstanding criticism of the bureau as an organization that has failed to transform in taking on an expanded intelligence mission. He says we have not made enough progress. He says we are gathering information to obtain convictions and without regard to our responsibilities as an intelligence agency. He says we need a separate intelligence service in this country, and he critiques virtually every aspect of the bureau in arguing that we cannot accommodate an intelligence program within the FBI.
I joined the CIA in 1985 as an analyst, and I left on loan to the FBI, to become second-in-charge of the National Security Branch responsible for this intelligence transformation, in September 2005. I watched counterterrorism operations for years; my most recent position at CIA was as second-in-charge of the Counterterrorist Center. There are many more important things we do beyond watching our critics comment on the FBI in the media, but few things in my 19 months at the bureau have been as curious as the broad gap between perceptions of the bureau among some critics, including Judge Posner, and the reality I have witnessed during my time here.
Judge Posner's comments fall short, well short, in two fundamental areas: facts and analysis. He is dead wrong on both fronts.
First, the facts. Judge Posner points to FBI investigations as law enforcement measures that are not intelligence operations. This is incorrect. We have discussions at least once a day with Director Mueller and senior operational managers to discuss the most significant terrorist threats we see. No discussion has ever focused solely on a prosecution or on a need to compile evidence quickly for a courtroom. Every discussion I've seen focuses on how much we understand al Qaeda and its homegrown cells.
Terrorism is not about stopping plots. We can stop plots, and do, with our partners in foreign security services, at CIA, at Homeland Security, with state and local police, and with Americans who help. But terrorists will plot again if we defend against only their schemes and fail to stop the terrorists themselves. So our focus is on what to do about terrorists once we draw an intelligence picture of who they are and what they are up to. When intelligence groups use their unique tools to stop terrorists overseas, they disrupt unilaterally and sometimes with foreign partners, often using those partners' law enforcement tools to take terrorists off the streets. But the end of their often brilliant intelligence operations is disruption: stopping people so they cannot plot again.
We operate within the U.S., and we have a different set of tools. But we have the same end as they do: disruption. Once we fully understand a cell, we can either let it run, which we often do, or take it down. When we take it down, we use tools that reflect American laws, used in ways that reflect American values. We penetrate cells to develop a sufficient understanding of who they are so we can limit the prospects of surprise. And once we have that understanding, we do what our partners do: We disrupt that cell using the tools at our disposal. Any security service around the world—MI5, CIA, Shin Bet—operates using this model.
Judge Posner's arguments are equally flawed when one actually examines how our foreign intelligence partners operate. He argues for an MI5, a separate security service that has only domestic intelligence responsibilities. It is not clear to me why such an approach would be any better than what we have. In fact, I believe it would be fundamentally worse. First, when our sister security services overseas operate, they do not function independently. They operate jointly, with their police counterparts. They may run parallel informant networks at the same time, keeping one network focused on intelligence collection while another might include an informant who can appear in a courtroom. We have the luxury, in this country, of a more efficient approach: We can sit at the table, in one organization, and talk about the intelligence we are collecting and what we should do about it, whether we should continue collecting or disrupt, and what options we have under either scenario.
The FBI is a national security agency; we are not solely a law enforcement agency. Judge Posner is right—we are not and never will be solely an intelligence agency. We are the federal agency responsible for national security, combining the authority and capability to collect information that could pre-empt a threat and to do something about it. Dividing these combined responsibilities by creating yet another federal agency, an MI5, would be remarkably inefficient and terribly slow. Who would divide the tactical responsibilities that overlap and snag? Why should one agency manage intelligence sources on Hezbollah and another manage sources who provide the same information but can appear in a court of law? Who would police turf wars? And how many more resources would we have to expend to fund and staff an agency dedicated to collecting the intelligence we already collect at the FBI? Such a move would be not only inefficient but foolish.
We have had remarkable success collecting against organized crime families, for example, so we could understand their structures and then take them down in what was a remarkable intelligence success. More recently, we've hired over a thousand more analysts, trained agents in intelligence collection programs, added national security training for all agents, and expanded guidance to FBI field offices on how we should conduct our intelligence mission. And we've shifted massive resources into counterterrorism and counterintelligence and made commensurate advances in our relationships with state and local law enforcement, tripling the number of joint terrorism task forces.
But we also have a ways to go to evolve our intelligence mission. Once we do, we should determine how to get even better. We don't train our personnel well enough yet, though we are working closely with intelligence partners to do so. We continue to devise policies for guidance in collecting intelligence. I joined the bureau with questions: Can we do this? Will we do this? And how? Nineteen months later, these questions are answered. It is the responsibility of those of us leading this bureau to provide the guidance, tools, funding, and vision to accomplish this mission. Judge Posner fails to understand what we have done, who we are, and how we go about our mission. He simply doesn't know.
John P. Mudd Deputy Director FBI's National Security Branch Washington
(As printed in The Wall Street Journal, March 21, 2007)
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