This commentary appeared in San Diego Union Tribune on September 8, 2002.
One year after Sept. 11, it is plain that arrangements that served the nation
in fighting the Cold War set it up to fail in the war on terrorism.
To be sure, pure inertia and bureaucratic in-fighting played a role and still
do. In the 1970s, it was literally true that the directors of the CIA and the
FBI did not speak to one another. Yet the terrorist threat puts pressure directly
on the fault-lines of Cold War arrangements. The threat is both foreign and
domestic. It respects no boundary between intelligence and law enforcement.
Nor does it respect the distinctions our federal system makes in doing policing.
And fighting terrorism bodes to affect the daily lives of citizens much more
than did fighting the Cold War.
Over the last year, the nation has begun, haltingly, to rethink those arrangements,
particularly in debating a new department of homeland security. But the process
has just begun. The terrorist threat to the homeland is very new terrain for
the nation, and so some caution in dramatically revamping organizations, and
still more attitudes, is unsurprising and probably wise. If a new department
is authorized, it will be a first step but hardly a last.
The Cold War Legacy
The reshaping is all the harder because the Cold War arrangements were, for
the most part, created on purpose. When President Truman formed the CIA, for
instance, he worried openly about a "Gestapo-like organization," and
so the CIA was barred from law enforcement and domestic activity. The nation's
first investigations of the intelligence, in the 1970s, uncovered abuses of
the rights of Americans and responded by suggesting, in effect, that the wall
between intelligence and law enforcement be raised. One result of those investigations
was a special court, the Federal Intelligence and Surveillance Court (FISC),
to review applications for national security, as opposed to law enforcement,
wiretaps and surveillance.
In that sense, the ragged cooperation between the FBI and the CIA before Sept.
11 should not have been such a surprise. They were created that way, to be close
but not too close lest the rights of Americans be abused.
Law enforcement and intelligence are very different worlds, a fact that compounds
the foreign-domestic divide. Intelligence is oriented toward the future and
toward policy. It seeks to inform the making of policy. It seeks to understand
new information in light of its existing understanding of complex situations.
It lives in a blizzard of uncertainty where the "truth" will never be
known for certain. Thus, its standard is "good enough for government work."
By contrast, law enforcement is after the fact. Its business is not policy
but prosecution, and its method is cases. It strives to put bad guys in jail.
Its standard is high, good enough for a court of law. And law enforcement knows
that if it is to make a case, it must be prepared to reveal something of how
it knows what it knows.
Law enforcement and policing also traditionally have been defined in geographical
units like precincts, cities and counties. Those definitions are mismatched
to a terrorist threat that moves easily across not just cities but countries,
as well. For the most part, the hijackers prior to Sept. 11 broke no laws, especially
no local ones. As a result, they were not, as they prepared their awful terror,
of much interest to local authorities. So, tips that would have been crucial
to intelligence about what was afoot went unnoticed, and surely uncommunicated.
Yet, suppose tips about Arabs in flight schools had been passed to the FBI
in the summer of 2001. Taking flying lessons is not a crime; as a law enforcement
operation, the FBI would have had no reason to open a case. Imagine how far
the FBI would have gotten then had it begun knocking on the doors of flying
schools inquiring about Arab students — all without an open case and at
a time when the FBI's parent, the Justice Department, was opening cases, but
ones against local police departments for racial profiling.
Fighting the Cold War was mostly a government — and a federal government
— monopoly; private companies and citizens were involved, but mostly they
fought the war by paying their taxes. That does not seem likely to be so for
the campaign against terrorism and for homeland security. Safeguarding critical
infrastructures, such as communications or electric power, from terrorist attack
means protecting public goods that are mostly in private hands. Across the country,
there are three times as many "police" in the private sector as in governments.
The lives of private citizens also will be affected more deeply by anti-terrorism
efforts. The long waits for security procedures at airports suggest the harder
questions to follow about whether people will carry national identity cards
or let their biometric identifications be taken for special advance screenings
as "trusted fliers." There are still harder questions about how private
citizens might be eyes and ears in the war on terrorism.
The Process of Rethinking
After Sept. 11, intelligence and law enforcement have been pushed toward each
other, yet how far remains controversial. The USA Patriot Act of November 2001,
for instance, made it easier to move information across the organizational divide
from law enforcement to intelligence. Sharing information in the other direction
remains even more sensitive because the FISC standard is easier to meet than
"probable cause" of a crime, giving rise to the fear that "national
security" wiretaps will be used to troll for criminal activity.
The Patriot Act did loosen the FISC standard, which before had prevented the
FBI field office in Minneapolis from getting permission to search the computer
of Zaccarias Moussaoui, the so-called 20th hijacker. The law also updated wiretapping
authority to cope with a world of multiple, mobile cell phones, not just static,
analog phones. This past summer, FBI Director Robert Mueller relaxed rules that
had restricted FBI agents from activities that are permitted to ordinary citizens,
such as surfing the Internet or visiting churches and similar public places
The Bush administration's proposal to turn the Office of Homeland Security
into a full-fledged department and the joint House-Senate investigations of
what went wrong before Sept. 11, which will come to a conclusion this fall,
should also provide both an opportunity and a basis for moving the rethinking
along. The new department, which is to have its own intelligence unit, will
be focused on terrorism and oriented domestically.
At present, remarkably, no agency systematically reviews domestic information
for intelligence and warning purposes, as opposed to law enforcement; the FBI
has expressed only the intention to begin doing so. While FBI Director Mueller
seeks to change this, the FBI really has not done intelligence, given its focus
on cases. As Mueller put it, the Bureau collects a lot of information but seldom
puts it all together.
The new department also could provide additional incentive for the CIA and
the FBI to communicate by looking at and trying to integrate information from
both. It hardly would be decisive in producing easier communication between
the two main agencies — there is too much history, not to mention constitutional
concern. But the department would at least be, as Gov. Tom Ridge, director of
the Office of Homeland Security, put it, another set of eyes.
Cooperating with Ourselves
The challenge of cooperating among ourselves in the war on terrorism is indeed
formidable. Not only are there, by one count, 18,000 governmental entities involved,
but the count would rise dramatically if private entities were added. And, almost
none of them have security clearances.
Thus far, information sharing has been pretty haphazard. After Sept. 11, it
turned out that there was information about possible nuclear threats to New
York, information that no part of the federal government troubled to share with
New York officials. At the other extreme, California's governor interpreted
very skimpy information about threats to the state's bridges as a reason for
public announcement and stepped-up protection.
Ridge instituted a color-coded chart of national warning, ranging from green
through blue, yellow, and orange, to red. The idea is based on 20 years of counter-terrorism
experience in Britain. It is a good idea, but the United States lacks Britain's
experience, so no one — not state and local officials, much less private
citizens — knows yet what the colors mean.
Intelligence and law enforcement do have experience in sharing intelligence,
both at home and abroad, and some of the mechanisms that have been developed
are suggestive. For instance, the U.S. military literally tears the source off
a message before passing the information to foreign partners in peacekeeping
operations. The FBI routinely organizes task forces with state and local law
enforcement officials to pursue joint operations, for instance against organized
crime, drug traffickers, or gangs. The local officers work as full partners
of the FBI. The rub is that to do so, they need to be cleared to the same level
as FBI agents, which is Top Secret (though the clearance process is often expedited).
California's Amber Alert system for missing kids suggests ways to both convey
relevant information to citizens and engage them actively in helping out. For
passing information from federal intelligence agencies to the states and their
public, the challenge is to pass as much information as possible but without
simply scaring people with warnings that they can't do anything about.
If domestic intelligence is now an urgent need, should we create not just
a Department of Homeland Security but our version of MI-5, the British domestic
intelligence service, as several members of Congress have suggested? Creating
a new service would not solve the turf disputes but might, somewhat paradoxically,
make for clearer lines of accountability than would leaving domestic intelligence
as the stepchild in a reshaped FBI.
Finally, how does the public provide warning without too much risk of score-settling
or witch-hunting? Do people call local authorities, visit websites, or offer
anonymous tips? Should there be penalties for false calls or for tips that turn
out to be score-settling? How should feedback be handled? Local authorities
now complain routinely that they never hear what happens with information they
provide to the FBI.
If domestic intelligence means not just tracking suspected terrorists but
also monitoring the chatter in the mosques of Chicago or the strip malls of
south Florida, how much are we prepared to run the risk that rights of Americans,
let alone non-Americans (who have far fewer rights), will be compromised? In
coming to grips with these questions, creating a department of homeland security
will provide a beginning, but just a bare beginning.
Explore All Topics »