The lessons of Toronto and domestic intelligence
By Richard A. Posner
Published June 8, 2006
The terrorist arrests in Toronto this week have revealed a gap in the U.S. intelligence system. The arrests were made by the Royal Canadian Mounted Police, but the plot had been discovered by surveillance conducted by the Canadian Security Intelligence Service, a different kind of security organization that our media have dubbed Canada's "spy agency." That is true, but misleading.
When we think of a spy agency, we think of the CIA, which conducts foreign intelligence. CSIS, however, conducts only domestic intelligence. It corresponds to England's security intelligence agency, commonly known as MI5, and to similar agencies in almost all major countries other than the United States. Such agencies are not in the law enforcement business. They have no powers of arrest or prosecution. Their sole mission is to detect and foil terrorism, sabotage, espionage and other internal threats to national security. Sometimes they hand over terrorists or other state enemies to the police, but often they thwart terrorists by other means, such as exposure, disinformation or "turning"--persuading the suspect to become a double agent.
In the U.S., domestic intelligence is primarily the responsibility of the FBI. Canada took the same approach until 1984. The Royal Canadian Mounted Police, Canada's counterpart to the FBI, had a division called the Security Service that dealt with national security threats. But in that year the service was removed from the Mounties and made a separate domestic intelligence agency, CSIS.
Why split domestic intelligence from criminal investigation? Because these activities differ so profoundly that trying to combine them into one agency causes underperformance of both. A crime has a definite locus in time and space, a characteristic profile (it's a bank robbery, or credit-card fraud, etc.), physical evidence, witnesses and often suspects. These circumstances enable a tightly focused investigation that usually leads in a reasonably short time to an arrest, prosecution, conviction and sentence. National security intelligence does not operate with such a clear path to success, especially when confronting a terrorist threat. For then the main objective is to discover who and where the terrorists are, what their plans and capabilities are, who finances them and what links they have with other terrorist networks. Obtaining such information is a laborious, painstaking and frustrating process, full of dead ends and wrong turnings. It is uncongenial activity for an agency, such as the FBI, that is primarily oriented toward conventional criminal investigations.
This is not just a theoretical point. Experience both before and after the terrorist attacks of Sept. 11, 2001, reveals an FBI that has stumbled repeatedly in its efforts, as yet unachieved, at "transformational" change. Almost five years after Sept. 11, the FBI has yet to create a separate career track for intelligence operations officers, to acquire up-to-date information technology, to appoint officials at the executive assistant director level who are intelligence specialists, or to command the respect of the intelligence community.
Objections have been raised to proposals to create an American counterpart to CSIS or MI5.
Some of these are clearly spurious, such as that there are 17,000 police forces in the U.S. and only 50 or so in England and how could a U.S. counterpart to MI5 coordinate its activities with 17,000 police forces. But the same question can be asked of the FBI: With 56 field offices, how can it coordinate with thousands of police forces? (Actually there are good answers to both questions.)
A similarly spurious objection is that a domestic "spy" agency would be bound to be a menace to civil liberties. But CSIS operates under extremely tight administrative oversight; and anyway, we have a domestic spy agency already--it is the FBI--and no one suggests that we should forbid it to engage in national-security intelligence.
There may be stronger objections to creating a domestic intelligence agency, though I doubt it, but it is high time these objections were addressed in a comprehensive feasibility study--just the sort of thing that one might have expected our Office of the Director of National Intelligence, the intelligence bureaucracy created by the Intelligence Reform and Terrorism Prevention Act of 2004--to conduct. It has not done so.
The Toronto arrests should be a wake-up call to Americans.
We knew from the London transit bombings of last summer that a nation's citizens can be recruited for terrorism, but we were reassured by the fact that England like other European countries has a large, poorly integrated, radicalized Muslim minority, surely unlike the Muslim minorities in Canada or the United States.
We have to rethink this comfortable assumption, at least insofar as Canada is concerned. Canada has approximately 600,000 Muslims, most of whom (like most other Canadians) live very close to Canada's largely unguarded 4,000--mile border with us. The United States has an estimated 2 million Muslims.
The vast majority of North American Muslims are loyal; and even among those who hate our governments and way of life only a tiny minority would ever turn terrorist. But that tiny minority could do immense damage, against which our best protection is a well-designed system of domestic intelligence--something we do not have.
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Richard A. Posner is a judge on the U.S. Court of Appeals in Chicago and the author of "Uncertain Shield: The U.S. Intelligence System in the Throes of Reform."
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