Agencies' reluctance to spy on Americans is largely a management issue.
Since journalists revealed in December 2005 that the National Security Agency has eavesdropped on phone calls and e-mails inside the United States without the customary court-issued warrants, the public debate over domestic spying has centered on ethics and the law. This isn't surprising, considering that NSA's actions, personally authorized by President Bush, were unprecedented in the agency's recent history and, in the judgment of many sound legal experts, fly in the face of the Constitution.
U.S. intelligence agencies have dabbled in domestic affairs before, of course, but there has been no concerted, constant effort on that front for more than 30 years. Today's spies came of age in the shadow of COINTELPRO, the FBI's notorious campaign against political dissidents that ran from 1956 to 1971. In reaction to those excesses, Congress enacted laws that have blocked the intelligence agencies from building a domestic service, making the United States one of the few Western powers that keep their spies focused, at least officially, overseas.
Fear of persecution or even jail time certainly has kept intelligence officials from going domestic en masse. But their reluctance has as much-if not more-to do with their own management culture.
For years now, a slew of intelligence veterans-including at least one ex-CIA lawyer-have argued that the agencies need some formal, domestic component in order to disrupt future terrorist attacks like Sept. 11, which was, after all, partly planned and entirely perpetrated within U.S. borders. They've called for an American version of Great Britain's domestic service, MI-5. But many in the intelligence bureaucracies have steadfastly resisted such a change because they know it would take years to implement and inspire enormous turf wars. Indeed, many current and former officials opposed adding "new layers" to the intelligence community by establishing the Homeland Security Department.
Judge Richard Posner, the mostly self-educated intelligence expert who sits on the U.S. Court of Appeals for the 7th Circuit, notes that even the addition of a new intelligence chief has failed to created stronger management. "No single official in the Office of the Director of National Intelligence presides over domestic intelligence as a whole except the DNI himself, who has neither the time nor the inclination to make domestic intelligence a priority," Posner writes in his new book, Countering Terrorism: Blurred Focus, Halting Steps (Rowman & Littlefield Publishers), which will be published in September. Posner writes mainly about former DNI John Negroponte, but presumes this will hold for new intelligence chief Mike McConnell as well.
The officials at the DNI's office are foreign intelligence experts, who regard domestic work as a "briar patch," Posner writes, not just because of its attendant political controversies, but also because "the executive branch has a freer hand in foreign policy, including foreign intelligence, than in domestic policy." Congress, the FBI and Homeland Security have their hands in domestic counterterrorism already as a law enforcement matter. With all those competing players, some intelligence officials have examined the terrain and have asked, "Why bother?"
To be sure, the federal government has stepped up intelligence collection at home dramatically since Sept. 11. But there is still no MI-5 for America because no top official, including the president, has tried to make one. To do so would mire the agencies in a domestic power grab for which they have shown little inclination.
Perhaps, as Posner suggests, the "pressure of the immediate" has kept managers from the task. (The agencies are fighting a global war on terror, after all.) But to presume that domestic inertia is chiefly the product of political trepidation would be to ignore the central role that managers play in how the spies spy, and how they don't.
Shane Harris, a staff correspondent for National Journal, wrote about intelligence and technology at Government Executive for five years.