JOHN SIPHER
JULY 5, 2016
After the San Bernardino terrorist attack there were the usual cries “to do something” to better protect the nation. We will surely again hear similar concerns in the face of the brutal massacre in Orlando. To this point, however, not much, if anything, has happened. However, another domestic terrorist attack—especially during a Presidential election cycle— will certainly lead to increased calls to reform our domestic counterterrorism (CT) and intelligence systems.
Unfortunately, the way we tend to make big and important change is to wait until it's too late, overreact to a crisis, slap together a hasty bill of available options, re-order some organizational blocks, and then have a politically-inspired fight that produces a solution that satisfies no one.
That’s what happened after 9/11.
Here's an idea: Let’s not wait until there is yet another crisis and the certain resulting hyper-partisan atmosphere before we think about how best to manage our domestic intelligence and counter-terror system.
According to numerous scholars and practitioners of the intelligence craft, one of the biggest mistakes following 9/11 was the failure to debate the necessity of creating a domestic intelligence service separate from the FBI.
Most developed democratic countries have domestic intelligence agencies focused 100 percent of the time on preventing attacks. They believe that separating intelligence from law enforcement functions allows them to be more effective in collecting and analyzing intelligence—to be forward looking rather than focused on investigative functions following an attack. For example, former Israeli Mossad Director Efraim Halevy commented that, “nowhere in the world, except in the United States, are the two functions combined. As long as there is no security service in the United States, there shall be a yawning gap in the defense of that great nation.”
We would probably already have had this debate if the post-9/11 response was not so harried and politicized. However, the effort to “reform” the intelligence community in the wake of the 9/11 attacks was a mess.
There were two periods following 9/11 when the idea of a new domestic intelligence agency was considered but never seriously debated, and ultimately shelved. The issue was first raised following the 9/11 Commission’s review of the U.S. effort to fight terrorism prior to 9/11. In their final report, the Commissioners placed primary blame on the FBI for the failures, and a majority of the Commissioners believed that the U.S. should consider a new domestic intelligence agency to replace the FBI. While it was considered undoubtedly the best Law Enforcement and detective agency in the world, the Bureau’s intelligence/CT capability was woefully inadequate.
Despite their findings, there was a fundamental rift between the 9/11 Commissioners themselves over what to recommend – the creation of an entirely new domestic intelligence organization or to allow the newly appointed FBI Director Robert Mueller to attempt to reform the Bureau. Since there was a distinct split between those Commissioners who wanted a new organization, and those who felt that it would be too contentious a political battle while the country was facing a challenge from al Qaeda, they decided to avoid any serious recommendations concerning the FBI.
It was a missed opportunity.
Therefore, despite the centrality of the question, the Commissioners barely addressed the problem and left it to the newly appointed FBI Director to reform the FBI from a decentralized detective and law enforcement agency into a new centralized domestic intelligence entity.
The second opportunity to address the issue was during the crafting of the 2004 Intelligence Reform Bill (IRTPA - Intelligence Reform and Terrorism Prevention Act). The biggest legislative change in this country’s intelligence and security system since WWII was pushed through in a matter of weeks during the hyper-charged 2004 Presidential election.
Likewise, Congress couldn’t agree on the 9/11 recommendations, but under pressure to “do something,” they crafted a bill in a matter of weeks that would radically change the Intelligence Community. They didn’t really have a clue what to do. In their haste to get a bill passed before the election, they didn’t even include the Congressional Intelligence Committees in the process.
FBI Director Mueller lobbied hard to avoid any breakup of the FBI, and helped to craft a public narrative that a new agency could well be a risk to civil liberties, effectively dodging the fact that the FBI’s existing power to arrest, combined with increased authority to collect data on U.S. citizens, was already more power than would be housed in any new entity modeled on those of our Western allies. Consequently, the authors of the legislation were reluctant to take up such a delicate issue in the short weeks that they had to craft the Bill. Instead, they hoped that the issue of the FBI and domestic intelligence would be something left to a newly empowered Director of National Intelligence (DNI)—a primary goal of the new Law. Sadly, however, Defense Secretary Donald Rumsfeld used his bureaucratic weight to neuter the powers of the DNI in the Bill, fearing that a strong DNI could impinge on the 80 percent of the Intelligence budget controlled by the Department of Defense. Another missed opportunity.
The FBI has come a long way in their efforts over the past decade to build itself into an effective intelligence-led counterterrorism agency. From an organization that only collected information for its own use and treated intelligence analysis as a stepchild, it has greatly improved its collection and analysis of intelligence. Moreover, the current Director, James Comey, is one of the most impressive leaders in Washington. Nonetheless, there are yawning cultural and professional differences that inhibit the FBI from becoming an effective domestic intelligence organization.
Despite the fact that almost all western democratic states separate their domestic law enforcement and intelligence functions, we burden the FBI with the responsibility for far too much, and subsequently dilute their ability to focus on the intelligence/counterterrorist mission. To provide some context, the contemporary FBI is encumbered with the daunting responsibility of keeping us safe from terrorism while also serving as the nation’s premier law enforcement, domestic intelligence, and detective agency. It’s simply too much. Nobody can adequately recruit, train, and support a workforce able to do it all.
These concerns are by no means meant to downplay the incredible effort and progress the FBI has made over the last 15 years. However, ordering the FBI to reform and make itself into an intelligence agency, while keeping its law enforcement primacy, only puts the Bureau in an untenable situation. It is nearly impossible to do both jobs well since the culture, mindset, training, and professional tradecraft required for each are so different. Frankly, expecting a service to become the nation’s lead provider of predictive domestic counterterrorism intelligence, while concurrently maintaining primacy over federal law enforcement, is contradictory and unfair.
The law enforcement and intelligence cultures are equally powerful, but are diametrically opposed in many key ways. By its very nature, criminal investigation is retrospective—investigators investigate after a crime has been committed. While law enforcement is interested in what happened, intelligence is interested in what will happen.
Intelligence agencies prioritize human intelligence and collect information to build an institutional base of knowledge, while law enforcement frequently treats sources as short-term informants or potential witnesses. Further, there is a disincentive against collecting and documenting too much information, as it might well help a defense lawyer with exculpatory information, or jeopardize a potential conviction. The notion that there should be inhibitors to collection, dissemination, and storage of information is anathema to a true intelligence organization.
Indeed, FBI Director Comey said during a news conference on June 13 that the Bureau had investigated Orlando shooter Omar Mateen three times after it received information that Mateen had terrorist connections. Each time, the FBI concluded he was not a threat and closed the case. While I don’t doubt that the FBI took the threat seriously and actively monitored Mateen, the notion that you would “close” an investigation just doesn’t make sense to an intelligence service.
Suffice it to say that there are significant and meaningful differences between the law enforcement and intelligence missions. If we are truly concerned about the threat of terrorism in the U.S., why wouldn’t we consider an agency with primary focus on that mission rather than leaving it to an organization like the FBI whose focus is so diffuse?
At the very least, we could rationally consider what we expect from our domestic CT service, discuss the pros and cons, and be comfortable with a result that truly reflects what we want and need in the American context. There are a lot of downsides and obstacles to creating a wholly new domestic intelligence agency. Any large re-structuring is always disruptive. It has taken years for Department of Homeland Security and the DNI to become functional. Any new organization would need to take people from existing agencies, including the FBI. It would be a large effort for any administration to manage the public perceptions around the new organization. There are people who would see it as a “secret police” no matter how carefully it was structured. And it would need to overcome institutional antagonisms. Any successful domestic intelligence service would rely on a deep and close relationship with the FBI. It would have to be set up carefully so that it is not immediately shunned by the Bureau.
However, it is time to revisit the issue of a domestic intelligence service in a thoughtful way, unhindered by the hyper-partisan passions that reign supreme following a crisis. If we conclude that the present system with its inherent strengths and clear weaknesses is the best answer for our unique system of government, at least we will have arrived at that conclusion through a sensible, deliberate process, rather than passive acceptance of the consequences of a flawed report and hurried legislative process.
Then maybe, just maybe, we can also avoid wasting time and mental energy after the next terrorist attack, and focus on supporting our professionals.
THE AUTHOR IS JOHN SIPHER
John Sipher is a Director of Client Services at CrossLead, Inc. John retired in 2014 after a 28-year career in the Central Intelligence Agency’s National Clandestine Service. At the time of his retirement he was a member of the CIA’s Senior Intelligence Service. John served multiple overseas tours as Chief of Station and Deputy Chief of Station in Europe, Asia, Southeast Asia, the Balkans, and South Asia. He is the recipient of the Agency's Distinguished Career Intelligence Medal.
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