31 December 2003

Another Brick in the Wall???

At Slate today, Stewart Baker (former general counsel to the NSA, so he should in theory know something about what he's talking about) properly notes that there were structural reasons that impeded (not necessarily, as he implies, prevented) the apprehension of two or more of the 9/11 terrorists.

The country and its leaders have had more than two years to consider the failures of August 2001 and what should be done. In that time, libertarian Republicans have joined with civil- liberties Democrats to teach the law enforcement and intelligence communities the lesson that FBI headquarters taught its hamstrung New York agent: You won't lose your job for failing to protect Americans, but you will if you run afoul of the privacy lobby. So the effort to build information technology tools to find terrorists has stalled. Worse, the wall is back; doubts about legal authority are denying CIA analysts access to law enforcement information in our new Terrorist Threat Integration Center. Bit by bit we are recreating the political and legal climate of August 2001.

"Wall Nuts." With all due respect, Mr. Baker, you've identified the wrong problem.

[Carefully speaking around the restrictions in my NDA…] The difficulty is not with walls inside the FBI. The difficulty is that the culture of the FBI is simply not adaptable to preventive measures. The FBI is pretty good at dealing with matters after the fact—that is, catching criminals after the crimes have occurred. But its training, its leadership, its culture, and its capabilities are simply not appropriate to preventing serious actions, whether petty crimes or terrorism.

Unlike every other Western democracy, the US has no nonblack agency that is staffed with intelligence personnel that is also allowed (and indeed encouraged) to run domestic operations. (Aside: This is one of the most outlandish inventions of Fox's 24.) The problem is not the wall between criminal and counterintelligence investigations. The problem is that we don't have both an MI5 and an MI6. The CIA, the NSA, and the DIA are all chartered for foreign operations only. The wall is necessary precisely because when they do have information relevant to work inside the US, they have the mirror image of the FBI's problem: they have little or no training, culture, or capability to work within the civil rights accorded within the US.

To put it another way, the problem is not that the information didn't get to the right people; it's that we don't have the right people. Our structure omits an agency to handle domestic counterterrorism that does not report principally to a law enforcement agency, and then to the Attorney General. This is the wrong command structure; and, if nothing else, the problems at Desert One and in Grenada and in the Beirut barracks should act as obvious, harsh, unclassified lessons in the consequences of improper command structures.

My gut instinct is that Mr. Baker might have liked to comment on this issue, but that his NDA is even more restrictive in that aspect than is mine. If one looks at his rhetoric, he carefully does not say that the wall must be torn down within the FBI. The irony is that a separate agency would actually be easier to control and train in terms of respect for civil liberties—the fact that it might fill the same role as the Okhrana (the Czar's secret police) does not mean that it must behave the same way.