NATIONAL SECURITY:
Our Intelligence Quotient

By Richard A. Posner

Why we need a domestic CIA. By Richard A. Posner.

Now that General Michael Hayden has been confirmed as

General Michael Hayden by Taylor Jones for the Hoover Digest

CIA director, the agency will be in strong hands—especially with Stephen Kappes as his deputy. Hayden and Kappes are both highly respected throughout the intelligence community. Their appointments will not “recenter” the beleaguered Central Intelligence Agency, which is being squeezed from three sides: The Defense Department, the FBI, and the director of national intelligence are all encroaching on functions once securely within the CIA's domain. But with luck, Hayden and Kappes can prevent a further erosion of the agency's standing, restore morale, and take care that the CIA performs its core functions competently.

The picture may be brightening as far as foreign intelligence is concerned, but it remains dark with respect to domestic intelligence. Burying our principal assets for detecting terrorist plots that unfold within the United States in a criminal-investigation agency—the FBI—is unsound. We are the only major country that does this. The United Kingdom's domestic intelligence agency, MI5, works closely with Scotland Yard, Britain's counterpart to the FBI. But it is not part of Scotland Yard.

The British understand that a criminal-investigation culture and an intelligence culture don't mix. A crime occurs at a definite time and place, enabling a focused investigation likely to culminate in an arrest and conviction. Intelligence seeks to identify enemies and their plans before any crime occurs. It searches for terrorist sleeper cells in the United States with no assurance of finding any. Hunting needles in a haystack is uncongenial work for FBI special agents. And so, at the same time that the attorney general was testifying before Congress that the National Security Agency's intercepting some communications of U.S. citizens is essential to national security, leaks from inside the FBI revealed that special agents are disgruntled at having to chase down the leads furnished to them by the NSA. FBI special agents—the bureau's only operations officers—want to make arrests, and so they zero in on animal-rights terrorists and ecoterrorists—people known to be committing crimes and therefore relatively easy to nail. These people are criminals and should be prosecuted, but as they do not endanger national security, prosecuting them should not be an intelligence priority.

Changing an institutional culture is difficult at best; in this case it may be impossible. Five years after 9/11, the horses of change at the FBI have left the paddock but are still short of the starting gate. At least $100 million spent on trying to equip the bureau with modern information technology adequate to its intelligence tasks has been squandered. Less than a year after the president forced a fiercely recalcitrant FBI to combine its intelligence-related divisions into a single unit (the National Security Branch), the unit's first and only director resigned to become the security director of a cruise-ship line. The FBI's primary mission is and will remain fighting crime; and just as crime-fighters don't make good intelligence operatives, intelligence operatives don't make good crime-fighters. The FBI fears that its main mission would be compromised if it embraced its secondary one.

Illustration by Taylor Jones for the Hoover Digest

The objections to creating a U.S. counterpart to MI5 are shallow. The FBI notes that Britain has only about 50 police forces and the United States, 18,000: How could a U.S. domestic intelligence agency staff 18,000 field offices? It couldn't, of course. But neither can the FBI, which has only 56 field offices and an attitude of hauteur toward local police. Some fear that a domestic intelligence agency would be a secret police, spying on Americans. But like MI5 (and its Canadian counterpart, the Canadian Security Intelligence Service), such an agency would have no powers of arrest, and no greater authority to “spy on Americans,” than the FBI now does.

Intelligence seeks to identify enemies and their plans before any crime occurs. It searches for terrorist sleeper cells in the United States with no assurance of finding any. Hunting needles in a haystack is uncongenial work for FBI special agents.

Domestic intelligence is vital because of the danger of terrorist attacks from inside the United States, such as those on 9/11, and controversial because it entails surveillance of Americans, not just foreigners abroad—hence the current controversies over domestic surveillance by the NSA and over the Defense Department's expanding role in domestic intelligence. We need an agency (which the president could create by executive order, as he did the National Counterterrorism Center in August 2004) that, unhampered by either military or law enforcement responsibilities, could begin to plug a gaping hole in our defense against terrorism.

Available from Rowman and Littlefield is Uncertain Shield: The U.S. Intelligence System in the Throes of Reform, by Richard A. Posner, copublished with the Hoover Institution. To order, call the National Book Network at 800.462.6420 or visit www.rowmanlittlefield.com.

Judge, U.S. Seventh Circuit Court of Appeals; Author, Breaking the Deadlock.