Set Up To Fail
s the joint House-Senate intelligence committee grinds through its investigation of why intelligence failed before Sept.11, it should not be surprising that cooperation between the CIA and the FBI was ragged at best. We created them that way. Out of concern for our civil liberties, we prevented them from becoming too close. The FBI and CIA sit astride the fundamental distinctions of the Cold War - distinctions between intelligence and law enforcement, between foreign and domestic, and between public and private. The distinctions run deep.
Those distinctions were not imposed by nature; rather, the United States mostly chose them for good, practical and constitutional reasons. They did not serve us badly during the Cold War, but they set us up to fail in an era of terror. Now, reshaping intelligence and law enforcement means not just reshuffling organizations and refashioning their cultures, it means rethinking basic categories of threat and response. In that sense, the proposed new Department of Homeland Security is a first step in a long process, but surely not the last.
Law enforcement and intelligence are worlds apart. That was driven home to me early in the Clinton administration when I was vice chairman of the National Intelligence Council, which brings together all the intelligence agencies to hammer out national intelligence estimates. There was evidence that Iraqi intelligence had plotted to kill former President Bush during his post-presidential visit to Kuwait. In the event, the plot never came close, but the Clinton administration faced a decision about whether to punish Iraq. In examining the evidence, the administration put together a team combining CIA intelligence analysts with FBI and Justice Department lawyers. The interaction was fascinating, but it showed just how different intelligence and law enforcement are in mission, operating code and standards.
Intelligence, what John Le Carré, author of best-selling spy thrillers, refers to as "pure intelligence," is oriented toward the future. It seeks to inform policy-making by interpreting new information in the context of the existing understanding of complex situations. Intelligence agencies live in a blizzard of uncertainty where the "truth" never is certain. Thus, their standard is "good enough for government work." Because intelligence agencies strive above all to protect sources and methods, their officials want desperately to stay out of the chain of evidence so they will not have to testify in court.
By contrast, law enforcement comes after the fact. Its business is not policy but prosecution, and its method is building cases. It strives to put bad guys in jail. Its standard is high: good enough for a court of law. In the Iraqi case, evidence that for intelligence would have been good enough to unleash cruise missile attacks on Iraq was not good enough for our FBI and Justice colleagues, so the team looked again and again at forensic evidence and the "signatures" of bomb makers. Law enforcement knows that to make a case, it must be prepared to reveal something of how it knows what it knows. The nation's premier law enforcer, the FBI, has no real history of analysis; indeed, the word "intelligence" means something different in law enforcement. It means "tips" that will help to find and convict evil-doers. It does not mean presenting a mosaic of understanding to policy-makers.
The distinction between foreign and domestic magnifies the intelligence-law enforcement split. American institutions and practices before and during the Cold War drew a sharp distinction between home and abroad. When he created the Central Intelligence Agency in 1947, President Truman worried openly about a "Gestapo-like" organization, so the CIA was barred from law enforcement and domestic operations. A generation later, in the mid-1970s, Congress' first-ever inquiry into intelligence investigated abuses of the rights of Americans. The Senate Select Committee on Intelligence Activities (which I served as a staffer) was headed by then-Sen. Frank Church, D-Idaho. The most serious of those abuses, which included the harassing of Martin Luther King Jr. along with many American religious and political groups, had emerged from COINTELPRO, a curious mixing by the FBI of law enforcement and intelligence ostensibly for domestic counterintelligence purposes. Our response was to raise the walls between intelligence and law enforcement, for example by creating a special court, the Federal Intelligence and Surveillance Court, to review applications for national security wiretaps and surveillance.
To be sure, turf battles and different cultures also play a role in keeping the CIA and FBI apart. When I first went to Washington in the 1970s to work for the Senate Select Committee, it was literally true that the directors of the CIA and FBI didn't speak to each other. That state of affairs has improved-it could hardly have gotten worse-but still, relations between the two have been rough. The National Security Agency, too, is barred from law enforcement and from domestic spying, so if the trail of conversations NSA is monitoring becomes "domestic"-that is, if it involves a U.S. citizen, corporation or even a resident alien-the trail must end.
The Cold War could draw a distinction between public and private because at the time, national security was a federal government monopoly. To be sure, private companies and citizens played a role, but for most citizens, fighting the Cold War simply meant 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. Thus, private companies will be drawn more deeply into fighting terrorism than they were into fighting communism. The lives of private citizens also will be affected more deeply by anti-terrorism efforts. To the inconvenience of waiting in long lines imposed by security procedures at airports will be added harder questions about whether citizens will be willing to carry national identity cards or let their biometric identifications be taken for special advance screenings as "trusted fliers."
All three of these distinctions-between law enforcement and intelligence, foreign and domestic and public and private-were all too vividly on display before Sept. 11. In its law enforcement role, the FBI failed to share important intelligence with non-law enforcement brethren in government. Focused on domestic crime, the bureau failed to see the threat Osama bin Laden posed within this country. Blocked by the high walls protecting privacy, the FBI couldn't get into the laptop computer belonging to alleged 20th hijacker Zacarias Moussaoui.
An Aug. 23 CIA cable warned of two bin Laden associates who had entered the United States and two others who were expected to attempt entry. Apparently, the FBI did little with the information and also failed to share it with the Immigration and Naturalization Service until the INS already had admitted the other two into the country. Questioned about its failure to follow up, one FBI official said, "If the cable says, 'Don't let them in the country,' and they were already in the country, what's the point of bringing this up now?"
In any event, the FBI failed to locate Khalid Almihdhar and Nawaf Alhazmi, who are said to have been responsible for the jet that crashed into the Pentagon on Sept. 11. On Oct. 18, the Los Angeles Times reported that a simple check of public records and addresses through the California Department of Motor Vehicles would have disclosed the location of the two hijackers who were the subject of the Aug. 23 cable. A check with credit card companies would have shown airline ticket purchases and given their correct addresses.
A State Department official testified that the FBI has refused for a decade to provide the INS with access to its National Crime Information Center Database on the argument that the INS is not a "law enforcement" organization. Nevertheless, the Los Angeles Times reported, an internal FBI review concluded that everything was done that could have been done to prevent the Sept. 11 attacks. Before Sept, 11, the "standard FBI line," according to a source who spoke to writer Joe Klein for an Oct. 1 story in The New Yorker, was that "Osama bin Laden wasn't a serious domestic security threat," presumably because his earlier attacks had been abroad, not at home.
No agency told the Federal Aviation Administration to be on the lookout for the four bin Laden associates, apparently because it was not in the law enforcement business. And nobody told the airlines because they were private, not public.
Meanwhile, Moussaoui had been arrested on Aug. 16 in Minneapolis for a visa violation. FBI agents at the field office suspected him of terrorism and sought, increasingly desperately, to search his laptop computer. They were frustrated in a debate with headquarters about one of those walls between intelligence and law enforcement that had been raised during the 1970s-the Federal Intelligence and Surveillance Court, established in 1978.
Before FISC, presidents had claimed the prerogative of warrantless searches for national security purposes. In a compromise between presidential discretion and civil liberties, FISC created a special secret court in Washington to review requests for covert national security wiretaps and searches by the FBI and NSA. By the FISC standard, however, the "primary purpose" of any search had to be a suspected connection to a foreign power, and the FBI offices disagreed on whether Moussaoui met that standard. The debate continued through Sept. 11, according to a July 7 story in The New York Times.
COOPERATING WITH OURSELVES
Terrorism at home is new terrain for the nation, and so it will take us time to work through the implications of the changed threat. In terms of organization, if the United States were now starting from scratch, it would never re-create its existing intelligence or law enforcement structures. Establishing a Department of Homeland Security is a good first step, but there is no magic organizational solution.
If the Department of Homeland Security has its own intelligence assessment capability, it needs to be a serious one, which means it would need authority to both receive raw intelligence and assign tasks to the intelligence collectors. It would need access to foreign intelligence and to the domestic material that emerges from law enforcement. It would not be simply a departmental intelligence operation like the State Department's Bureau of Intelligence and Research. Rather, it also would serve the broader set of officials, especially in the White House homeland security office.
It would need to be focused on terrorism and be oriented domestically. Of current institutions, the CIA and the intelligence community's Counterterrorism Center, which is located at the CIA, are, for legal reasons, focused mostly abroad. Operators, not analysts, have dominated the center. At present, remarkably, no agency systematically reviews domestic information for intelligence and warning purposes-as opposed to law enforcement; the FBI has only expressed the intention to begin doing so.
The Homeland Security Department's intelligence capacity would link intelligence tightly to warning. Getting warnings too close to operations was a concern after Pearl Harbor was bombed in 1941, but seems the right approach now. In the run-up to Pearl Harbor, Army and Navy intelligence had, apparently, been reluctant to sound the tocsin based on what was inevitably "iffy" evidence. They were close to their operational colleagues and thus knew that it was a costly nuisance for those operators to act on warning-for instance, putting the fleet to sea-if the warning turned out to be a false alarm. The concern is fair, but now the warners (at the CIA, for instance) are so disconnected from those who must act that they are tempted to overwarn-a temptation in evidence this past summer. Moreover, the new assessment capacity will have lots of competition, hence many watchful eyes and differing views to prevent its assessments from being tailored to suit the convenience of Homeland Security operators.
Tom Ridge, the president's homeland security adviser, instituted a national warning stoplight chart with colors ranging from green through blue, yellow and orange to red, the highest state of warning. The idea is based on 20 years of experience in Britain. It is a good one, 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. With time and experience, the Homeland Security intelligence assessors could help the colors begin to acquire some meaning for public officials and private citizens alike.
The new unit also could provide additional incentive for the CIA and the FBI to communicate, in the form of another set of eyes looking at, and trying to integrate information from, both. It hardly would be decisive in producing easier communication between the two agencies-there is too much history, not to mention constitutional concern. But the new intelligence unit would be a customer with a direct stake in the intersection of the information and analysis produced by the two.
The challenge of cooperating among ourselves in the war on terrorism is indeed formidable. Not only does the war on terrorism involve, by one count, 18,000 federal, state and local agencies, but there are many more if private players are added-not just corporations but nongovernmental organizations as well. And almost none of them have security clearances. Thus far, most intelligence sharing has been haphazard. After Sept. 11, it turned out that there was information suggesting nuclear threats to New York, information that no part of the federal government bothered 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.
The implications of the changed threat run well beyond organization, to what is collected, by whom and under what restrictions, all sensitive issues of domestic intelligence gathering. The Sept. 11 terrorists not only trained in Afghanistan, they also used European cities like Hamburg, Germany, and Brixton, England, as staging areas where they could live, train and recruit in a protective environment. Similarly, they mixed easily in some areas of the United States, South Florida and Southern California in particular. The nation's need is not just to follow individuals, it is also to know what is being said on the streets and in the mosques of Brixton or Boston-it must do domestically what has heretofore been considered "foreign" intelligence gathering.
The terrorist threat takes us back to the thicket that the investigators of intelligence worried about a generation ago. Then, the investigations led to higher walls between intelligence and law enforcement. After Sept. 11, intelligence and law enforcement have been pushed toward each other, yet how far remains controversial.
For instance, the 2001 U.S.A. Patriot Act made it easier to move information across the organizational divide. Before the law was enacted, any information that was before a federal grand jury could be shared with CIA analysts only with a court order. Now, that information can be shared more easily. The act also loosened the FISC standard to permit covert searches if a foreign connection was a "secondary purpose." The new law updated wiretapping authority to cope with a world of multiple, mobile cell phones. This summer, FBI Director Robert Mueller relaxed rules that had restricted FBI agents from doing things that ordinary citizens do, such as surfing the Internet or visiting churches and similar public places.
Shifting the culture of the FBI from law enforcement to prevention, as Mueller has urged, is such a dramatic change that it may not be wise. In any case, it is the work of a generation, not a couple of years. Ultimately, if we require not just good law enforcement but good domestic intelligence, can the FBI do both? Former National Security Adviser Brent Scowcroft has suggested creating a separate career track in the bureau for intelligence-a call that fell on stony ground. By tradition, law enforcement has been the bureau's dominant mission and special-agents-in-charge have dominated its pecking order. Should the FBI be split into two agencies, one for law enforcement and the other for domestic intelligence?
If domestic intelligence is now an urgent need, should we create not just a Department of Homeland Security, but also add to it a home office-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 born of overlapping missions. But, somewhat paradoxically, a separate U.S. domestic service might make for clearer lines of accountability than would a domestic intelligence agency that could wind up as a stepchild in a reshaped FBI.
And 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 risk are we prepared to run that rights of Americans, let alone of non-Americans (who have far fewer rights), will be compromised?
In coming to grips with these questions, the creation of a Department of Homeland Security will provide a beginning, but just a bare beginning.
Gregory F. Treverton, now at RAND, was vice chairman of the National Intelligence Council during the first Clinton administration. His book