The Intelligence Mess: How It Happened, What to Do About It
Andrew C. McCarthy, a former chief assistant U.S. attorney in New York, led the 1995 terrorism prosecution of Sheik Omar Abdel Rahman in connection with the first World Trade Center bombing. His reviews and essays have appeared in COMMENTARY, National Review Online, and other publications.
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Intelligence-gathering is something of a square peg in the round hole of contemporary political morality. It is about unearthing that which is willfully concealed, an enterprise that necessarily calls for invading privacy and inducing betrayal—discomfiting acts in an age that exalts the individual and his liberties above community and country. It is about assuming and preparing for the worst in an era that sees "bad" as an outmoded adjective for "different," another dash of enlivening spice in a rich social stew. Intelligence is gimlet eyes in a world of rose-colored glasses.
Now, however, that foreign pathologies long denied have visited their excesses upon us, many among the benignly tolerant have turned overnight into the equivalent of ambulance-chasers. In particular, they have confidently laid at the door of America’s intelligence apparatus the success of America’s enemies on September 11, 2001. Even as investigators in the CIA and FBI were unable to "connect the dots," it is said, nineteen al-Qaeda hijackers cavorted for months in this country before carrying out the atrocities of that day. Nor was this catastrophe—"by definition, the worst intelligence failure in our country’s history," in the words of the Reagan-era intelligence expert Herbert Meyer—a singular phenomenon. Less than a year earlier, a billion-dollar battle ship, the U.S.S. Cole, had been bombed and nearly sunk, causing the deaths of seventeen servicemen, because we unwittingly berthed it in the al-Qaeda-infested port of Aden, Yemen. This, after our embassies in Kenya and Tanzania were turned to rubble in August 1998 by the very same al Qaeda, which had already attacked numerous times previously, and which no less often had expressly declared war on the United States.
Nor is that all.<font size=3> Thanks to our failed intelligence services (the indictment continues), the Bush administration grossly overestimated the stockpiles and production capacity of chemical, bacteriological, radiological, and nuclear weapons of mass destruction (WMD) in Iraq. In the meantime, in North Korea, construction of nuclear weapons seems to have ensued for years right under our noses. And Pyongyang’s mischief marked only a single strand in a web of proliferation woven by our ally Pakistan, a web that may have spread into as many as seven nations, including Iran, where the mullahs now harbor the remnants of al Qaeda’s leadership.
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How did this wide wreckage in our intelligence capacities come about? <font size=3>One incisive answer has been given by Mark Riebling in his gripping history, Wedge: How the Secret War between the FBI and CIA Has Endangered National Security (1994, re-issued in 2002 with a new epilogue). Riebling’s thesis is that the problem is longstanding, that it has a single "root cause," and that this root cause is institutional. In his telling, a full half-century’s worth of national disasters—from Pearl Harbor through the Bay of Pigs, the Kennedy assassination, Watergate, Iran-Contra, and 9/11—can be traced directly to intelligence failures, and those failures were proximately caused by turf-battling between our two great rival agencies.
This has now become conventional wisdom, accepted on all sides. And one can see the apparent sense in it. A ramified system of multiple agencies having similar missions and chasing the same budget dollars will inevitably produce rivalry; rivalry begets pettiness, and pettiness begets failure. Such, indeed, is the reasoning behind virtually all of the proposals now under consideration by no fewer than seven assorted congressional committees, internal evaluators, and blue-ribbon panels charged with remedying the situation.
One proposed fix, supported by, among others, Senator John Edwards and James B. Steinberg, a deputy national security adviser in the Clinton administration, would create a new entity, analogous to Britain’s MI-5, to assume the FBI’s domestic-intelligence mission. Decoupling that agency’s information-gathering from its law-enforcement duties would allegedly result in a specialist agency that would more resemble, and be less likely to rumble with, its foreign-intelligence counterpart, the CIA. These hoped-for efficiencies would, it is (naively) supposed, compensate for the loss of the FBI’s critical power to leverage intelligence-gathering with the ready hammer of prosecution.
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Steinberg and Senator Dianne Feinstein are also among those who would solve the pitfalls of conflicting bureaucracies by . . . adding another bureaucracy.<font size=3> This new National Intelligence Directorate would oversee the full spectrum of relevant entities, compelling the likes of the CIA, the FBI, the National Security Agency (NSA), the National Geospatial-Intelligence Agency, the Defense Intelligence Agency (DIA), and the State Department’s intelligence branch to play nice with each other. Presumably it would also render obsolete the Terrorist Threat Integration Center, another new entity (under CIA direction) created by President Bush a year ago to promote harmony.
II
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But is it true that inter-agency rivalry is the problem everyone claims it is?
That rivalry exists is indisputable; likewise, that its effects can be pernicious.<font size=3> One of my first encounters with the CIA a decade ago occurred when I and other prosecutors preparing the conspiracy case against the organization responsible for the 1993 World Trade Center (WTC) bombing asked the agency for a much-needed briefing. The CIA was perfectly willing to come to New York for that purpose—but not if our FBI case agents were going to be in the same room.
Nevertheless, <font size=4>like many facts that appall at first blush, internecine warfare is only, at best, half the story. For one thing, intelligence professionals are correct (if occasionally disingenuous) when they complain that the public has a skewed perception of their operations: while catastrophic lapses are always notorious, intelligence successes are more numerous. These, however, must typically be kept secret in order to preserve sources of information and methods of gathering it. The unfortunate result is a portrait of ceaseless "failure" that, aside from giving intelligence-gathering an undeserved bad name, also obscures other verities.
First, day-to-day cooperation among agencies, and particularly between the FBI and CIA, is actually far better than people have been led to believe.<font size=3> In terrorism cases, in the decade after the 1993 WTC bombing, teamwork improved in leaps and bounds. To be sure, there are occasional breakdowns, usually due to personality conflicts. But this is an unavoidable function of the human condition—which no legislation on earth can repeal—and it is just as frequently a factor in intra-agency disputes as in those between agencies. Today, agents who fail to compare notes are generally acting in violation of information-sharing protocols; it is hard to imagine additional directives improving the situation.
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Second, intelligence-gathering is not monolithic. Domestic intelligence is radically different from the foreign variety, and both differ critically from the needs of the military.<font size=3> So polysemous an imperative requires a variety of skills to meet widely divergent situations and assumptions. As both a practical and a political matter, it is inconceivable that the task could be accomplished by a single agency, and proposals that suggest otherwise are certain only to reshuffle, rather than eradicate, natural rivalries while damaging the quality and quantity of information collection.
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Third, and most misunderstood, rivalry—overall—is a virtue. In the government’s vast monopoly, it is essential.<font size=3> Naturally, the seamy side of competition being a perennial best-seller, the public record is replete with hair-raising anecdotes of sharp-elbowed investigators pursuing the same quarry to the benefit of criminals, enemies, and traitors. On a macro level, however, the throat-cutting is statistically insignificant. As a rule, competition impels agents to test their premises and press for better information; it results in the generation of more leads and the collection and refinement of more intelligence. <font size=4>In a world where the Supreme Court cannot decide a case without amicus briefs from innumerable interested observers, where Congress declines to pass legislation without the input of scores of experts, do we really want the President, in matters of national security, reduced to a single stream of intelligence-collection and analysis?
If turf-battling is not an enormous obstacle, does that mean there are no obstacles? Hardly. The real problems, though, are not bureaucratic but structural and philosophical. They have taken over 40 years to metastasize, and they would take a lot more than cosmetic surgery to reverse, even assuming the national will to do it.
III
As with much else in our national life, the bacillus now grown to plague America’s intelligence apparatus took root in the unrest of Vietnam and the upheaval of Watergate. The perception of national security became intertwined in those years with an increasingly unpopular war that ended badly. For a generation of activists soon to take up positions of influence in politics, academia, and the media, the antiwar movement inculcated a lasting aversion not only to the exercise of American military power but to the agencies tasked with assessing threats to our national security, not to mention the real-world grunt work of intelligence.
Watergate deepened the aversion.<font size=3> For one thing, the burglars included former intelligence officers. For another, President Richard Nixon enlisted the CIA to obstruct the FBI’s investigation of the break-in. For a third, his White House "enemies" operation featured spying against domestic political adversaries. Hot on the heels of these misdeeds, the CIA became enmeshed in other domestic spying scandals that were subjected to high-profile probes, first by a commission appointed by President Ford and, in 1976, by the celebrated Senate Select Committee chaired by Frank Church.
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Perhaps the first consequence of this chain of events was a long-term decline in the authority of the executive branch of government. The decline stemmed from an illogic that often bedevils the aftermath of scandal: the tendency to confound the sins of a corrupt actor (in this case, Nixon) with a structural weakness in the system itself. In the mid-1970, the new operating premise was that, since robust presidential power was likely to be corrupted, it must therefore be scrutinized and shackled in every respect.
From this there followed a second consequence: a shift of national-security functions, prominently including intelligence-gathering, from the ambit of broad executive discretion to the area where executive action is regulated by Congress and the federal courts. Compared with the "intelligence failures" decried by journalists and politicians today, this shift engendered a continuing calamity.
In the constitutional license given to executive action, a gaping chasm exists between the realms of law enforcement and national security. In law enforcement<font size=3>, as former U.S. Attorney General William P. Barr explained in congressional testimony last October, <font size=4>government seeks to discipline an errant member of the body politic who has allegedly violated its rules. That member<font size=3>, who may be a citizen, an immigrant with lawful status, or even, in certain situations, an illegal alien, <font size=4>is vested with rights and protections under the U.S. Constitution. Courts are imposed as a bulwark against suspect executive action; presumptions exist in favor of privacy and innocence; and defendants and other subjects of investigation enjoy the assistance of counsel, whose basic job is to thwart government efforts to obtain information. The line drawn here is that it is preferable for the government to fail than for an innocent person to be wrongly convicted or otherwise deprived of his rights.
Not so the realm of national security, where government confronts a host of sovereign states and sub-national entities (particularly terrorist organizations) claiming the right to use force. Here the executive is not enforcing American law against a suspected criminal but exercising national-defense powers to protect against external threats. Foreign hostile operatives acting from without and within are not vested with rights under the American Constitution. The galvanizing national concern in this realm is to defeat the enemy, and as Barr puts it, "preserve the very foundation of all our civil liberties." The line drawn here is that government cannot be permitted to fail.
For these reasons, prior to the post-Vietnam, post-Watergate revolution, executive-branch authority in matters of national security had been almost plenary. The constitutional checks held by Congress were largely trifles. The power to declare war was already nearly an anachronism—during the Civil War, the Supreme Court had ruled that, regardless of whether Congress acts, Article II of the Constitution actually obliges the President to respond with all necessary force to put down attacks against the United States. Even Congress’s power of the purse lacked much practical muscle, given the inherent political risk for a legislator who dared to withhold funds the President said were vital to national security.
In line with this, the executive branch had wide latitude to gather intelligence against potential threats. True, the CIA’s charter did not permit it to conduct domestic intelligence-gathering—that task being left to the FBI—but this affected only which arms of the executive branch could spy on our enemies in which venues. It did not, at least in theory, affect the substance of the information to be gathered.
IV
But cataclysmic changes were ahead, and their harbinger was President Jimmy Carter’s acquiescence in the 1978 Foreign Intelligence Surveillance Act (FISA). Here, for the first time, Congress and the courts undertook to regulate the gathering of national intelligence, particularly by electronic eavesdropping, against agents of hostile foreign powers. In the Nixonian afterclap, it was adjudged that the executive could not be trusted unilaterally to wield this power, which might secretly be used against political opponents. <font size=3>
Of course, such wiretapping was already illegal, and the Nixon experience had amply demonstrated the political price to be paid for engaging in it. No matter. Henceforth, the executive branch would not be allowed to use whatever tactics it, as the branch with the most expertise and information, determined were necessary to protect the nation. Rather, it would be compelled to go to a federal FISA court newly created for the purpose, and, as with the procedure for criminal wiretaps, it would need to establish probable cause that the target was an agent of a foreign power. Electronic surveillance would be permitted only if the judges approved.
The impact on intelligence collection was serious. <font size=4>Previously, it would have been laughable to suggest that foreign enemy operatives had a right to conduct their perfidies in privacy—the Fourth Amendment prohibits only "unreasonable" searches, and there is nothing unreasonable about searching or recording people who threaten national security. (The federal courts have often recognized that the Constitution is not a suicide pact.) Now, such operatives became the beneficiaries of precisely such protection. Placing so severe a roadblock in the way of a crucial investigative technique necessarily meant both that the technique would be used less frequently (thereby reducing the quantity and quality of valuable intelligence) and that investigative resources would have to be diverted from intelligence-collection to the rigors of compliance with judicial procedures (which are cumbersome).
This was only the start of the debacle. Courts and the organized defense bar soon began to ply the FISA statute with hypothetical governmental abuses.<font size=3> What if, they worried, a national-security wiretap yielded evidence of an ordinary crime—not an unlikely event, given that terrorists tend to commit lots of ordinary crimes, including money laundering, identity fraud, etc. This was no problem under FISA as written: intelligence agents could simply pass the information to agents of the criminal law, who could then use the damning conversations in court. But what if such law-enforcement agents, for their part, were to try to use FISA as a pretext to investigate crimes for which they themselves lacked probable cause to secure a regular criminal wiretap?
In one sense, the suggestion was not out of line—wiretap conversations are devastating evidence, and defense lawyers routinely strain to have them suppressed. But the notion was logically absurd. If a criminal investigator was going to act corruptly, it would be far easier for him to fabricate evidence showing probable cause for a regular wiretap (by pretending, for example, to have an anonymous source who had bought illegal drugs from the target) than to trump up a national-security angle necessitating an additional set of internal approvals. Nor was there any indication that such chicanery was actually afoot. But <font size=4>reality is rarely an obstacle for those who see life as an ongoing law-school seminar<font size=3>. Gradually, courts rewrote FISA, grafting onto it a so-called "primary purpose" test requiring the government to establish not only probable cause that it was targeting operatives of a foreign power but also that its real reason for seeking surveillance was counterintelligence, not criminal prosecution.
As one would expect, this created among many prosecutors a grave apprehension about "the appearance of impropriety"—a hidebound concept governing lawyer ethics that is perfectly nonsensical in the life-and-death context of national security. Even as militant Islam began its terrorist war against the United States with the 1993 WTC bombing and the 1994-95 "Bojenka" plot to blow a dozen American airliners out of the sky over the Pacific, the Justice Department was worrying that agents and prosecutors might be perceived to be using intelligence-gathering authority to build criminal prosecutions. Often, the result was weeks or more of delay, during which identified terrorists who happened also to be committing quotidian crimes went unmonitored while the government dithered over whether to employ FISA or the criminal wiretap law. <font size=4>The insanity reached its apex in 1995 with the "primary purpose" guidelines drafted by the Clinton administration: henceforth, a firewall would be placed between criminal and national-security agents, generally barring them even from communicating with one another.
The damage from the firewall and the impediments to FISA has been incalculable.<font size=3> It took ten years to make the racketeering case against Sami al-Arian, the professor accused of helping run the murderous Palestinian Islamic Jihad from the campus of South Florida University, because the wealth of information collected by intelligence agents was withheld from their criminal counterparts. And that was a pittance compared with what happened <font size=4>in the waning weeks before the September 11 attacks. Zacarias Moussaoui, who had paid cash for pilot training (and was reported to authorities when his bizarre behavior—including intense interest in how cabin and cockpit doors worked—could no longer be ignored), was detained by the immigration service. Worried FBI intelligence agents were desperate to search his computer, but were turned down by supervisors who decided there was insufficient evidence to go to the FISA court. His al-Qaeda membership and numerous connections to the hijackers were not uncovered until after the attacks.
And the Moussaoui travesty itself pales in comparison to the story of Khalid al-Midhar and Nawaf al-Hazmi<font size=3>, excruciatingly recounted in Slate by Stewart Baker, general counsel of the National Security Agency during the early Clinton administration. <font size=4>The pair, who had trained to pilot planes, lived in California. In August 2001, an astute FBI intelligence agent was trying to find them, and asked the criminal division for help. But FBI headquarters stepped in and insisted that the firewall not be breached: criminal agents were to stay out of the intelligence effort. A few weeks later, al-Midhar and al-Hazmi plunged Flight 77 into the Pentagon, their manifold ties to Mohammed Atta and the other hijackers kept safely under wraps.
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End of Part One |
