Tuesday, August 15, 2006

For an FBI-5

Judge Richard Posner is always worth reading. He is a judge on the United States Court of Appeals for the Seventh Circuit (Wisconsin, Illinois, Indiana) and one of the most influential jurists in the history of the United States. Two years ago he wrote a dissection of the 9-11 Commission Report that is still worth reading today. Two months ago, he lauded the performance of the Canadian CSIS in stopping a terror plot in Toronto.

Judge Posner is the most notable proponent of developing a US-equivalent to Her Majesty's Security Service, also known as MI-5. The reason is simple: counterintelligence/counterespionage and criminal investigation are so different, and require such different skills, that an agency that seeks to do both will not excel at either. And the FBI is poor at counterespionage. Here's Posner's core reasoning:

. . . We do not have a counterpart to MI5. This is a serious gap in our defenses. Primary responsibility for national security intelligence has been given to the FBI. The bureau is a criminal investigation agency. Its orientation is toward arrest and prosecution rather than toward the patient gathering of intelligence with a view to understanding and penetrating a terrorist network.

The bureau's tendency, consistent with its culture of arrest and prosecution, is to continue an investigation into a terrorist plot just long enough to obtain enough evidence to arrest and prosecute a respectable number of plotters. The British tend to wait and watch longer so that they can learn more before moving against plotters.

The FBI's approach means that small fry are easily caught but that any big shots who might have been associated with them quickly scatter. The arrests and prosecutions warn terrorists concerning the methods and information of the FBI. Bureaucratic risk aversion also plays a part; prompt arrests ensure that members of the group won't escape the FBI's grasp and commit terrorist attacks. But without some risk-taking, the prospect of defeating terrorism is slight.

MI5, in contrast to the FBI (and to Scotland Yard's Special Branch, with which MI5 works), has no arrest powers and no responsibilities for criminal investigation, and it has none of the institutional hang-ups that go with such responsibilities. Had the British authorities proceeded in the FBI way -- rather than continuing the investigation until virtually the last minute, which enabled them to roll up (with Pakistan's help) more than 40 plotters -- most of the conspirators might still be at large, and the exact nature and danger of the plot might not have been discovered. We need our own MI5, not to supplant but to supplement the FBI.

Read the whole thing.

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