Richard Posner is a judge on the United States Court of Appeals for the Seventh Circuit. He is one of the most influential jurists in the US, and one of the most influential in the history of American jurisprudence. He has taken a special interest in the question of domestic information gathering to prevent terrorist attacks, and has thoroughly studied the issue of America's programs to prevent domestic terrorism. His excellent rebuke of the 9-11 Commission's final report, which appeared in the NY Times Book Review two years ago, is a must read.
In today's Chicago Tribune, Posner has a column on the lessons of Toronto -- what Canada's apprehension of the 17 Toronto terrorists can teach the US about tracking down the terrorists in our midst. In the UK, the domestic surveillance of threats to the nation and the law enforcement investigation of crimes that have occurred are separate matters. MI-5, Her Majesty's Security Service, performs domestic intelligence and has no power of arrest, Special Branch performs investigation and has powers to arrest. In Canada, the CSIS is the equivalent of MI-5, the Royal Canadian Mounted Police are Special Branch. In 1984, the CSIS was formed to perform duties in Canada equivalent to MI-5. Posner says we need the same type of organization because the FBI is a national investigation police force, not an adequate counterespionage organization.
Here's an excerpt:
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.