Remaking Domestic Intelligence

Remaking Domestic Intelligence

HOOVER CLASSICS

The Hoover Classics series will reissue selected books of lasting merit and influence from the list of previous Hoover Institution Press publications. The aim of the series is to engender new interest in these titles and expand the readership to a wider audience—in some cases, to a new generation. Additionally, it is hoped that by extending the life of these books, they will continue to contribute to free discussion and debate on important issues of public policy and historical understanding.

Robert E. Hall and Alvin Rabushka

The Flat Tax, second edition

Richard Epstein

Free Markets Under Siege: Cartels, Politics, and Social Welfare

Russell A. Berman

Anti-Americanism in Europe: A Cultural Problem

Terry L. Anderson and Laura E. Huggins

Property Rights: A Practical Guide to Freedom and Prosperity

Richard A. Posner

Remaking Domestic Intelligence

Remaking

Domestic

Intelligence

Richard A. Posner

HOOVER INSTITUTION PRESS

Stanford University       Stanford, California

The Hoover Institution on War, Revolution and Peace, founded at Stanford University in 1919 by Herbert Hoover, who went on to become the thirty-first president of the United States, is an interdisciplinary research center for advanced study on domestic and international affairs. The views expressed in its publications are entirely those of the authors and do not necessarily reflect the views of the staff, officers, or Board of Overseers of the Hoover Institution.

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Hoover Institution Press Publication No. 541

Copyright © 2011 by the Board of Trustees of the

     Leland Stanford Junior University

All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, without written permission of the publisher.

First edition paperback published in 2005

First printing Hoover Classics edition, 2011

Library of Congress Cataloging-in-Publication Data

Posner, Richard A.

Remaking domestic intelligence / Richard A. Posner.

p.    cm. — (Hoover Institution Press publication ; no. 541)

(Hoover classics)

Reissue of the 2005 ed.

Includes index.

ISBN-13:  978-0-8179-4681-4 (cloth : alk. paper)

ISBN-13:  978-0-8179-4683-8 (e-book)

1. Intelligence service—United States.    2. Canadian Security Intelligence Service.    I. Title. JK468.I6P672  2011

363.25’931—dc22               2008040212

Contents

Introduction to the Hoover Classics Edition

Prefatory Note to the Original Edition

1.   The Problem

2.   The Agency within an Agency Solution

3.   A Better Solution

Conclusion

Appendix: Mission Statement of the Canadian Security Intelligence Service

Index

Introduction to the

Hoover Classics Edition

I BEGAN STUDYING and writing about national security intelligence in the summer of 2004, when the editor of the New York Times Book Review asked me to do a substantial front-page review of the 9/11 Commission’s report on the terrorist attacks of September 11, 2001. As I began work on the review, I was quickly struck by the anomaly that alone of major nations the United States—though now exposed as a prime terrorist target—did not have a domestic intelligence service, like England’s MI5 or Canada’s Canadian Security Intelligence Service. Instead we had entrusted responsibility for preventing terrorist and other enemy attacks within the United States (like the 9/11 attacks themselves) to the Federal Bureau of Investigation, which had of course done a very poor job in the run-up to 9/11. It was apparent that entrusting a detective bureau (which in essence is what the FBI is) with national security intelligence was a mistake.

I suggested as much in the book review but elaborated the suggestion in my first book on national security intelligence—Preventing Surprise Attacks: Intelligence Reform in the Wake of 9/11 (Hoover Institution and Rowman & Littlefield, 2005)—although that was not the focus of the book. Later that year, however, I published the monograph reprinted here—Remaking Domestic Intelligence (Hoover Institution, 2005)—which as the title suggests focuses exclusively on domestic intelligence, and argues at length the need for creating a domestic intelligence service outside the FBI.

The monograph was completed in July of 2005, just a month after President Bush had announced a reorganization of the FBI that would consolidate three divisions of the Bureau—the Intelligence, Counterterrorism, and Counterintelligence Divisions—to form the National Security Service (quickly renamed the National Security Branch), within the Bureau, that would report to the Bureau’s deputy director. I was skeptical about the reorganization, but it was too soon to evaluate it; I nevertheless remained confident that the nation needed a separate domestic intelligence service, and I so argued in the monograph.

It is three and a half years since I completed Remaking Domestic Intelligence, and in chapters of two subsequent books (both published by the Hoover Institution and Rowman & Littlefield)—Uncertain Shield: The U.S. Intelligence System in the Throes of Reform, chs. 4 and 5 (2006) and Countering Terrorism: Blurred Focus, Halting Steps, ch. 6 (2007)—I have examined the performance of the National Security Branch and found it wanting in such areas as executive turnover (excessive), organizational culture (still that of a detective bureau), organizational structure (too hierarchical), relations with other agencies both federal and state concerned with counterterrorism (still very poor), and utilization of digital technology (hopeless). See also my article (coauthored with Luis Garicano) Intelligence Failures: An Organizational Economics Perspective, Journal of Economic Perspectives, Fall 2005, p. 151. The book chapters review other evidence that supports the need to create a domestic intelligence service wholly outside the FBI. But they supplement rather than supplant this monograph, which lays out the essential case against the present arrangements.

Four years on from my last book that discussed the domestic intelligence issue (Countering Terrorism), there is, despite the foiling of a number of attempted attacks by home-grown Islamist terrorists (the major failure being the Fort Hood Massacre by Major Nidal Hasan), growing concern about the danger of such terrorism, and, so far as I am able to judge, continued serious culture problems with the entrustment of primary responsibility for domestic intelligence to the FBI. Hence I continue to advocate the creation of a separate domestic intelligence agency modeled on Britain’s MI5 (the Security Service) or Canada’s CSIS (the Canadian Security Intelligence Service. The only major change I would make in the monograph reprinted here were I writing it anew would be to delete the recommendation to place the domestic intelligence agency in the Department of Homeland Security. Today as in 2005, when the Department was only two years old, it remains the case that the Department is unlikely to become fully functional for years to come—and perhaps that time will never come, and the Department will eventually be abolished. I now think that unless and until DHS gets its act together, a domestic intelligence service should be a free-standing agency, like the CIA (that is, not part of a Cabinet-level department), reporting to the Director of National Intelligence.

Richard A. Posner

March 20, 2011

Prefatory Note to the

Original Edition

THE MAGNITUDE OF the terrorist threat to the United States, coupled with the lack of coordination among our domestic intelligence agencies and the continuing failure of the lead agency, the Federal Bureau of Investigation, to develop an adequate domestic intelligence capability, argues compellingly for reform. This monograph by Richard A. Posner, a federal circuit judge and a senior lecturer at the University of Chicago Law School, and the author of Preventing Surprise Attacks: Intelligence Reform in the Wake of 9/11 (2005), develops the case for reform and makes concrete proposals.

Because the FBI’s failure is systemic, being rooted in the incompatibility of criminal law enforcement (the FBI’s principal mission) with national security intelligence, the reform must have a structural dimension. Under pressure from the White House, the FBI has now reluctantly agreed to create a unit to be called the National Security Service, by fusing the Bureau’s three divisions that at present share intelligence responsibility. This reorganization may or may not be a good idea; but clearly it is not enough. The Director of National Intelligence should take the coordination and command of domestic intelligence firmly into his hands by appointing a deputy for domestic intelligence. Even more important, a true domestic intelligence agency—which is to say an agency that like England’s MI5 or the Canadian Security Intelligence Service would have no law enforcement functions—should be created and lodged in the Department of Homeland Security. Intelligence fits better into an agency concerned with preventing attacks than into one concerned with prosecuting the attackers. The reorganization of DHS announced by Secretary Michael Chertoff on July 13, 2005, is potentially a first step toward the creation of a U.S. Security Intelligence Service.

This monograph borrows some material from chapter 6 of Preventing Surprise Attacks but is mainly new. The author thanks Lindsey Briggs, Paul Clark, Raina Kim, and Meghan Maloney for exemplary research assistance, and Stewart Baker, Scott Hemphill, Grace Mastalli, Ted Price, Laurence Silberman, George Spix, Thomas Twetten, and James Q. Wilson for valuable advice and stimulating comments. The extensive comments of Baker, Spix, and Twetten on successive drafts deserve a special acknowledgment. Remaining errors are the author’s own.

July 20, 2005

1. The Problem

INTRODUCTION

Domestic national security intelligence (domestic intelligence for short) is intelligence concerning threats of major, politically motivated violence, or of equally grievous harm to national security, mounted within the nation’s territorial limits, whether by international terrorists, homegrown terrorists, or spies or saboteurs employed by foreign nations. The 9/11 attacks reflected a failure of domestic intelligence, having been mounted from within the United States by terrorists who had been in this country for months—some intermittently for years.

The danger of terrorist acts committed on the soil of the United States has not abated despite strenuous efforts to improve homeland security. The hostility of significant segments of the vast Muslim world (including large and restive Muslim minorities