The Intelligence Mess - Part Two
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In attempting to "connect the dots" on how branches of our government erected barricades against efficient information-sharing, one cannot avoid addressing the most basic blunder of all. In the years after World War II, the designers of the CIA conceived of it as, in one sense, an analogue to the American military. Just as the armed forces are generally precluded by law from domestic policing (which is left to the FBI and other federal, state, and local agencies), so the CIA could not conduct its operations within U.S. territory.
The CIA, then, is confined to foreign intelligence and counterintelligence activities. When leads cross into U.S. territory, the FBI takes over—mainly through its foreign-counterintelligence division, which is separate from its law-enforcement side. This division of labor, and not simple rivalry, is the salient reason for the inter-agency warfare of the last half-century.
Turf aside, however, the structure is not analogous to the military doctrine of posse comitatus, which bars the armed forces from domestic policing. For if the United States were invaded by a foreign army, our military would respond; that would be a national-defense function, not policing. Similarly, hostile foreign operatives within the U.S.—plotting, recruiting, providing funding and material support to their principals—fit the mold of an invading foreign army far better than that of a criminal collaborator.
Yet U.S. law and tradition (strenuously supported by many of the same politicians who today bluster about the CIA’s lack of dot-connecting skills) rig intelligence as if it were Russian roulette: the agency whose raison d’être is to counter foreign threats to our national security is precluded from participating in investigations once they cross into our nation, while the agency that is expected to pick up the ball and run with it from there does so without the CIA’s depth of knowledge and expertise.
The ill-conception of this arrangement has become increasingly patent. With the info-tech revolution, al-Qaeda operatives seamlessly share information across borders with the click of a mouse, enabling them instantly to construct a complete picture of their prey. By contrast, the forces charged with keeping us safe from them are expected to complete awkward hand-offs as persons and information roam in and out of the country. The windfall beneficiary is, ironically, the terrorist operative who happens also to be an American citizen. Such an operative is not only protected by the full panoply of constitutional rights wherever in the world he travels but is radioactive to the CIA, which is no less fearful of the perception that it is spying on Americans than the Justice Department was about the appearance of misusing FISA.
VI
It is bad enough that, prior to 9/11, terrorists could easily survive in the lacunae of our domestic intelligence apparatus. Worse, they positively thrived on the way it operated.
Throughout the eight years of the Clinton administration, as militant Islam’s jihad against America escalated, the federal courts became the linchpin of counterterror strategy. This began understandably enough. The 1993 WTC bombing was viewed as a domestic crime.<font size=3> Although, years later, investigators and journalists would link the bombing to al Qaeda, and al Qaeda in turn to prior terrorist acts against the U.S., at the time not much was known about Osama bin Laden, his network, and his national support systems in Afghanistan and Sudan. <font size=4>No one credibly could fault President Clinton for handling the matter as a court case or for not responding militarily. As the murder and mayhem grew, however, and as it became clearer that indictments were a pusillanimous response to suicide bombers geared to obliterate American embassies and naval destroyers, Clinton stayed the self-defeating course.
As Defense Secretary Donald Rumsfeld has observed, weakness is provocative. The fecklessness of meeting terrorist attacks with court proceedings—trials that take years to prepare and months to present, and that, even when successful, neutralize only an infinitesimal percentage of the actual terrorist population—emboldened bin Laden. But just as hurtful was the government’s promotion of terrorism trials in the first place. They were a useful vehicle if the strategic object was to orchestrate an appearance of justice being done. As a national-security strategy, they were suicidal, providing terrorists with a banquet of information they could never have dreamed of acquiring on their own.
Under discovery rules that apply to American criminal proceedings, the government is required to provide to accused persons any information in its possession that can be deemed "material to the preparation of the defense" or that is even arguably exculpatory. The more broadly indictments are drawn (and terrorism indictments tend to be among the broadest), the greater the trove of revelation. In addition, the government must disclose all prior statements made by witnesses it calls (and, often, witnesses it does not call).
This is a staggering quantum of information, certain to illuminate not only what the government knows about terrorist organizations but the intelligence agencies’ methods and sources for obtaining that information. When, moreover, there is any dispute about whether a sensitive piece of information needs to be disclosed, the decision ends up being made by a judge on the basis of what a fair trial dictates, rather than by the executive branch on the basis of what public safety demands.
It is true that this mountain of intelligence is routinely
surrendered along with appropriate judicial warnings:
defendants may use it only in preparing for trial, and may
not disseminate it for other purposes. Unfortunately,
people who commit mass murder tend not to be terribly
concerned about violating court orders (or, for that
matter, about being hauled into court at all).
In 1995, just before trying the blind sheik (Omar Abdel Rahman) and eleven others, I duly complied with discovery law by writing a letter to the defense counsel listing 200 names of people who might be alleged as unindicted co-conspirators—i.e., people who were on the government’s radar screen but whom there was insufficient evidence to charge. Six years later, my letter turned up as evidence in the trial of those who bombed our embassies in Africa. It seems that, within days of my having sent it, the letter had found its way to Sudan and was in the hands of bin Laden (who was on the list), having been fetched for him by an al-Qaeda operative who had gotten it from one of his associates.
Intelligence is dynamic. Over time, foreign terrorists and spies inevitably learn our tactics and adapt: consequently, we must refine and change those tactics. When we purposely tell them what we know—for what is blithely assumed to be the greater good of ensuring they get the same kind of fair trials as insider traders and tax cheats—we enable them not only to close the knowledge gap but to gain immense insight into our technological capacities, how our agencies think, and what our future moves are likely to be.
In considering the asserted "intelligence failures" of
September 11 and beyond, it is worth bearing in mind this
information bounty, which our government consciously
decided to provide from 1993 through 2001 even as it was
increasingly manifest that the enemy was growing more
proficient, its attacks more deadly.
VII
Although I have thus far been concentrating on the collection and analysis of intelligence here at home, a similar and complementary history can be constructed for what happened to our capabilities overseas. There, too, our intelligence apparatus was thoroughly compromised.
In particular, the collapse of the Soviet Union in the early 1990’s dovetailed with a severe economic recession that ultimately cost George H. W. Bush his presidency. For the CIA, this constellation of circumstances had two major, detrimental consequences.
First, desperate to cut spending wherever politically palatable, the federal government declared a "peace dividend." This was a fantasy. Although the fall of Soviet tyranny was an enormous blessing, it also presaged a more challenging international environment, filled with threats diffuse, unconventional, and less predictable.
Nevertheless, at the urging of many of the same elected
officials now complaining about failure, including Senator
John F. Kerry, intelligence spending was repeatedly
slashed.
The second nightmare for the CIA was President Clinton.
For the first President Bush, himself a former CIA
director, intelligence had been a priority. For Clinton,
it was a nettlesome chore—and one he largely avoided.
Clinton had no time even for James Woolsey, his own chosen
director of Central Intelligence, declining to hold a
single one-on-one meeting during Woolsey’s maddening two-
year tenure. This freeze-out had the predictable effects:
agency morale plummeted, officers abandoned ship, and
Congress’s funding door slammed shut.
Human intelligence also fell into disrepair, having already fallen into disrepute. It is worth considering that almost all the terrorism prosecutions of the 1990’s took place after successful attacks. We managed to stop exactly two such attacks: the 1994 Bojenka plot against the airliners, and a 1993 conspiracy to bomb New York City landmarks. The former success was due to sheer luck (a fire, started by inept chemical mixing on the part of two terrorists, was detected by an alert Manila police officer), combined with a Pakistani informant who was induced to turn in the ringleader. The latter happened because an informant penetrated the blind sheik’s terror organization, recorded scores of conspiratorial conversations, and permitted agents to catch the plotters in flagrante delicto, stirring explosives. Sadly, that informant had actually infiltrated the group in 1991 but had been deactivated seven months before the 1993 WTC bombing (after which he was reinstated).
One cannot develop the necessary global network of
intelligence informants without CIA case officers. As
George Tenet, the current director, attested in a recent
speech, by the time he took the helm in the fifth year of
the Clinton administration the graduating class of case
officers was at a historic nadir. As for the agency’s
clandestine-services program, Tenet elaborated, that was
in such a shambles that it will take until 2009 before it
is functioning at an acceptable level.
Meanwhile, abjuring clandestine operatives, Clinton-era intelligence went hi-tech, making extensive use of satellite surveillance and other advances in remote eavesdropping. But with fewer agents to translate and analyze what was gathered, or to follow leads, the effort was ineffectual. Consider: the 1998 embassy bombings in Africa, carried out by an organization we had been focusing on for five years, took several months to plan; ditto the 2000 strike on the U.S.S. Cole (which would have happened eight months earlier, to the U.S.S. The Sullivans, had not the terrorists’ attack boat sunk from the heft of explosives). The attacks of September 11, 2001 were plotted on four continents for well over a year. We did not sniff out any of them.
As the CIA stumbled, the FBI was ascendant, opening a host of new legal-attaché offices around the world. Generally speaking, this was a positive development: just as the terrorist threat was exploding, so too was the spread and sophistication of criminal syndicates, making it imperative for law-enforcement agencies to cooperate internationally. But timing is everything. The FBI was spreading its wings just as its most significant cases involved not ordinary crimes but national security.
Some of our best information is obtained from foreign
intelligence services. Naturally, those services are much
less forthcoming if they think that what they tell us will
have to be revealed in court because of U.S. legal rules.
Historically, that was not much of a problem when dealing with the CIA; it is, however, always a concern for a country weighing whether to share some sensitive or potentially embarrassing information with the FBI. The Saudis’ infamous obstruction of the FBI’s efforts to investigate the 1996 Khobar Towers bombing is an exquisite example.
In the Clinton years, no matter how many times we were
attacked, all the world knew that our approach was to have
the FBI build criminal cases. Indeed, Presidential
Decision Directive (PDD) 39, issued in June 1995,
announced that prosecuting terrorists and extraditing
indicted terrorists held overseas were signature
priorities of the administration. Nearly three years
later, after several other attacks and public declarations
of war by bin Laden, Clinton issued a press release that
both trumpeted as a ringing success his strategy of having
terrorists "apprehended, tried, and given severe prison
sentences" and announced a new directive, PDD 62. This
purported to "reinforce the mission of the many U.S.
agencies charged with roles in defeating terrorism,
"including by means of the "apprehension and prosecution
of terrorists." The embassies in Kenya and Tanzania were
bombed less than three months later.
VIII
The mantra that "9/11 changed everything" is omnipresent.
But is it true? It is certainly true in one crucial sense:
our national anti-terrorism strategy is no longer to fight
bombs and militias with indictments and press releases.
The military has reemerged as the spearhead, with law
enforcement in an important but subordinate role. The
ramifications have already been positive: simply by
responding with force to our enemies, we have not just
eliminated thousands of terrorists but accumulated volumes
of vital intelligence.
But much still needs to change, and the prognosis is not
hopeful. For one thing, we speak of intelligence
"failures" as if they were current lapses, to be laid at
the feet of the poor saps left without a chair just as the
music stopped. And we speak about "fixes" without coming
to terms with the nature of the problem; until we do, any
such fixes will at best be palliatives, and will more
likely make things worse.
Take Iraq’s missing weapons of mass destruction. It may yet turn out that these will be found in Iraq itself, or that they were moved or hidden outside the country in the many months between when we first told Saddam Hussein we were coming and when at last we arrived to depose him. Still, for the moment the stubborn fact remains that the government said the WMD were there and they have not been located. Whose intelligence failure is that? Did our intelligence agencies "fail" in 2003, when, according to David Kay, even Saddam’s Republican Guard believed Iraq possessed the weapons? Or did they "fail" in the 1990’s when the government of the United States regarded the CIA, and spying, and human intelligence, and Iraq as one big pain that should just go away?
Hizballah killed well over 200 servicemen in the two Lebanon attacks of 1983. The blind sheik, and bin Laden after him, promised their adherents that a reprise or two of such "operations" would surely induce the Americans to cut and run from the Persian Gulf. Although we did not cut and run, we did stand by as Saddam Hussein put down a revolt we had incited with the materiel we let him keep. When Saddam tried to assassinate the first President Bush and when he expelled the UN inspectors, we lobbed a few missiles at useless targets—just as we did when bin Laden obliterated our embassies in Africa. In response to the Cole bombing, we did nothing.
Bin Laden struck us repeatedly in the eight years leading up to September 11. From the thousands in al Qaeda’s swelling international ranks, we plucked about 40 and indicted them, bathing them in all the rights of American defendants, and arming them with information from our intelligence files to prepare their defenses. One of these, Mohammed Daoud al-‘Owhali, had killed nearly 250 people by helping to drive a car bomb to the entrance of our embassy in Nairobi, and later confessed. Al-‘Owhali was a soldier in a war on America, probably among the most effective ever. He was held not as a prisoner of war but as a criminal defendant, questioned not by the CIA but by FBI agents, who actually tried to give him Miranda warnings. When he was given a civilian trial, a U.S. judge initially ordered his confession suppressed—which would nearly have guaranteed his acquittal—because he had not been advised of his right to have an American defense lawyer present: a right that, since he was in the custody of Kenya, he did not have. The judge later relented, but only after issuing an opinion holding that foreign terrorists who attack America overseas should be accorded the benefits of the constitutional system it is their mission to destroy.
Was September 11 the worst intelligence failure in our country’s history? Or was it, rather, a national failure, the failure of a country that allowed its sense of decency to overwhelm its instinct for survival and that effectively convinced its enemies that they could strike with impunity?
The problem with our intelligence apparatus, to repeat, is that we went on a national nap for over two decades. If an entity is systematically warped and mismanaged for 20 or 30 years—not by a single agency director or American President, but by a philosophy—it cannot be fixed overnight. You cannot wake up on Monday and say, "We need more informants," and expect to have them embedded and reporting by the close of the business day. If those lobbying for quick fixes to the intelligence mess do not appear to understand this, might it be because they do not want anyone to start probing whose mess it actually is?
IX
This is not to say that the U.S. intelligence apparatus needs fundamental restructuring. In my opinion, it does not. Instead, its primary needs are, first, time to reverse a quarter-century of sloth, and, second, adequate resources to build a new human-intelligence network. Beyond that, a few other things need to happen, but it is here especially that pessimism sets in.
Although there is no need to restructure the CIA and FBI, the division of labor between them must take account of new realities. Without losing the benefits of rivalry, it is imperative to eliminate the structural barriers that, assuming they ever made sense, make none now. In particular, in a national-security investigation, the overriding assumption must be that we are dealing not with potential criminals presumed innocent but with foreign enemies who must be brought to heel. This means that the CIA must be able to follow the trail of its intelligence into the U.S.
In short, I am proposing that the CIA be permitted to work in the United States against those who have been colorably associated with foreign powers, including terrorist groups. A number of safeguards can be put in place to assure Americans that we have not authorized Big Brother to run amok. In addition to requiring that the FBI be given notice and periodic updates, we could mandate that the CIA obtain authorization within 72 hours of the start of domestic surveillance.
My own preference is that this approval come from a responsible executive-branch official rather than from the courts. The FISA model, in my view, violates the principle of separation of powers, gets courts (which have no institutional expertise in, or ready access to, intelligence) into the business of micro-managing national security, discourages agents from pursuing investigations essential to public welfare, and confers upon enemy operatives benefits they should not have. Still, given that FISA is not going away, I would rather have a requirement to obtain FISA court authorization than a continuation of the outdated system in which, while al Qaeda can freely cruise from Peshawar to Peoria, the CIA gets turned away at the border.
Complementing this change, the FBI and the CIA should continue their increasingly effective cooperation outside the United States, with two caveats. The first is that the CIA (and the Defense Department) should be in the lead, the FBI in a secondary role except when the executive branch determines it is in our national interest to extradite to our criminal-justice system a terrorist held by a foreign sovereign. The second is that, the targets in this war being enemy combatants and not criminal suspects, they should not get Miranda warnings, American constitutional protections (except minimal due process, which our government must always accord), or lavish access to our sensitive files. Instead, they should be captured, held for however long active hostilities last, squeezed (humanely) for information, and, if they have violated the laws of war, given military tribunals.
Other commonsense steps to promote competent intelligence-collection were incorporated in the Patriot Act, enacted six weeks after the September 11 attacks. This act, however, has come under blistering assault; so vicious has the campaign been that sensible Democrats like Senator Feinstein and Senator Joseph Biden have been moved to join their voices to those of President Bush and Attorney General John Ashcroft in the act’s defense. But it may be too little, too late: there are now more than a half-dozen proposals making their way through Congress seeking rollbacks or repeal.
The Patriot Act’s intelligence improvements were vital, and nowhere more so than in the area of information-sharing. It dismantled the pernicious FISA firewall that prevented agents from pooling information. It authorized intelligence agents who were conducting FISA surveillance to "consult with federal law-enforcement officers to coordinate efforts to investigate or protect against" terrorism and other hostile acts. In addition, the act made it easier to obtain surveillance authorization, scotching the requirement that agents show that foreign counterintelligence was the "primary purpose" for their application in favor of the less burdensome certification that it was a "significant purpose."
But it is these crucial improvements that have come under greatest fire. First, in 2002, the FISA court itself took umbrage at Congress’s demolition of the firewall and the (judicially invented) "primary purpose" test. Fortunately, the court’s attempt to reestablish the suicidal status quo ante was blocked. Next, however, an amalgam of libertarian Republicans and anti-Bush Democrats has promised to limit the term of the bill’s crucial provisions to December 31, 2005, when they are currently scheduled to "sunset" unless extended or made permanent by new legislation.
This bipartisan Senate cabal (led by Democrats Patrick
Leahy, Richard Durbin, and Harry Reid and Republicans
Larry Craig and John Sununu) wants not only to terminate
the FISA sharing provisions but to end the sharing of
grand-jury information; to restrict the information that
intelligence agencies may obtain from communications-
service providers (the same kind of information long
available to criminal investigators probing health-care
fraud and gambling); and effectively to destroy the
valuable "sneak-and-peak" search warrant (another
longstanding tool in ordinary criminal investigations)
that allows agents, with court approval, to search a
location for intelligence purposes but not to seize
anything, thus keeping the targets unaware. No doubt, the
next time something goes boom, these Senators and their
myriad sympathizers will be among the first to wail about
unconnected dots.
A political class that appreciated the stakes involved
would not indulge in this sort of recklessness. It would
not hasten to dub every episodic setback an intelligence
failure without asking searchingly whether we have set our
agencies up to fail. It would have the necessary
perseverance, through the inevitable torrent of
catcalling, to retrace a quarter-century of missteps. And
it would construct its remedies on the basis of a correct
diagnosis of the disease. Right now, when we need it most,
this is not the political class we have.
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Copyright 2003 Commentary |
