Transcript of Speech Delivered by Richard A. Posner

It is an honor to be asked to address the legal staff of the CIA.

This is a period of great challenge to the agency on all fronts, including the legal; your role as lawyers in interpreting the Intelligence Reform and Antiterrorism Prevention Act and in assuring that the agency operates in conformity with the law is a vital one.

By way of brief background, I first became seriously interested in intelligence reform in the summer of 2004, when out of the blue the New York Times Book Review asked me to review the about-to-be-issued 9/11 Commission's report, and I unguardedly agreed. My review nevertheless was well received in some quarters, and I was asked to expand it into a short book, Preventing Surprise Attacks: Intelligence Reform in the Wake of 9/11, published last spring. I have since written another book, Uncertain Shield:

The U.S. Intelligence System in the Throes of Reform, which is due to be published next week. And I have completed a third book, this one focusing on the interplay of law and intelligence, called Not a Suicide Pact: The Constitution in a Time of National Emergency. It will be published in the fall.

At the suggestion of Acting General Counsel Rizzo, I am not going to talk today about law today, though I will address an issue of legal policy, relating to the National Security Agency's recently disclosed program of surveillance outside the framework of the Foreign Intelligence Surveillance Act, at the end of my talk.

I am going to focus mainly upon, and raise questions concerning the wisdom and consequences of, the reorganization decreed of the U.S. intelligence system that was decreed by Congress in the Intelligence Reform and Terrorism Prevention Act, which was signed into law in December 2004 and which the intelligence community has been engaged in implementing in the year (well, actually 11 months) since the President appointed Ambassador Negroponte to be the first Director of National Intelligence. A recent article by Scott Shane in the New York Times states that "a year after the sweeping government reorganization [of intelligence] began, the [intelligence] agencies...remain troubled by high-level turnover, overlapping responsibilities and bureaucratic rivalry," and that the reorganization has "bloated the bureaucracy, adding boxes to the government organization chart without producing clearly defined roles."[2] <#_ftn2> The question is whether these are merely teething troubles, the inevitable transition costs involved in an ambitious government reorganization, or whether they point to fundamental design flaws in the intelligence reorganization.

It is tempting to suppose that all must be well because the DNI has hired able people. Indeed he has. But it is possible that these people could be working equally or even more productively for the individual agencies from which they (largely) came. The reorganization reshuffled rather than augmented the nation's federal intelligence personnel. In evaluating a reorganization, one must always consider the incremental benefits created by it, and compare them with the incremental costs.

The fundamental cause of the ambitious reorganization of the intelligence community that we are living through is not, I believe, some deep flaws in the system as it exited on the eve of the 9/11 attacks.

Rather, it is a deep misunderstanding of the limitations of national-security intelligence. It is the kind of misunderstanding that the commissioner of baseball might harbor if he thought it a scandal that 70 percent of the time even the best hitters fail to get a hit, and if he proposed to boost batting averages to 1000 by reorganizing the leagues. His thinking would be deeply flawed and his reorganization would fail to raise batting averages, though it might lower them.

Ephraim Kahana, in a recent article, lists Israeli intelligence failures since the founding of the State of Israel in 1948.[3] <#_ftn3> It is a remarkably long list. Many of the failures, it is true, occurred before Israel's warning-intelligence system was reorganized after the nation's biggest intelligence failure -- the Egyptian-Syrian surprise attack of October 1973. But as many occurred afterwards. Israel is reputed to have an excellent intelligence system and one that is on high alert because of the acute threat to its existence posed by the Arab states. Nevertheless it is fooled repeatedly. And its rate of being fooled seems insensitive to the organizational structure.

U.S. intelligence has been fooled repeatedly too. Think only of Pearl Harbor (after which we reorganized our intelligence system), the Tet Offensive of 1968, which put us on the road to eventual defeat in Vietnam, and, of course, the 9/11 attacks. We are fooled not because our intelligence system is poor, but because surprise attacks are extremely difficult to predict. And there are no organizational panaceas.

Intelligence misses are a constant; they are not a function of the details of the table of organization.