Richard A Posner - A Domestic CIA - WSJ

Wall Street Journal

A Domestic CIA
We need a spy agency that operates inside the U.S.
http://www.opinionjournal.com/editorial/feature.html?id=110008379

BY RICHARD A. POSNER
Monday, May 15, 2006 12:01 a.m.

Assuming that Michael Hayden is confirmed as CIA director, the agency will be in strong hands--especially if, as rumored, Stephen Kappes is appointed his deputy. General Hayden is the nation's senior intelligence officer (his current boss, John Negroponte, the director of national intelligence, is a career diplomat rather than an intelligence professional). Mr. Kappes, a former director of the operations (human intelligence) division of the CIA, is highly respected throughout the intelligence community. These 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, Messrs. 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. In my forthcoming book, I explain why burying our principal assets for detecting terrorist plots that unfold within the U.S. in a criminal-investigation agency--the FBI--is unsound. We are the only major country that does this. The U.K.'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 U.S. 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 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. Almost 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. Just eight months after the president forced a fiercely recalcitrant bureau to combine its intelligence-related divisions into a single unit (the "National Security Branch"), the unit's first and only director has 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 compromising its main mission by embracing its secondary one.

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 U.S. 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.

Domestic intelligence is vital because of the danger of terrorist attacks from inside the U.S., such as the 9/11 attacks, and controversial because it entails surveillance of Americans, and not just of foreigners abroad--hence the current controversies over domestic surveillance by the NSA and over the Defense Department's expanding role in domestic intelligence. Before the fifth anniversary of 9/11 rolls around, 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, can begin to plug a gaping hole in our defense against terrorism.

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," which will be published next week by Rowman & Littlefield.