Transcript of Speech Delivered by Richard A. Posner

Prevention -- detection in advance -- requires casting a very wide net, following up on clues, assembling bits of information, and often failing because there is as yet no crime, no definite time and place from which to begin, no witnesses. To speak a bit fancifully, the FBI agents are like dogs, and the CIA officers like cats. The pointer, the retriever, the hound has a definite target, and goes for it. The cat is furtive, slinks about in the dark, pounces unexpectedly at the time and place of its choosing.

There was a noteworthy incident, shortly after the NSA's non-FISA surveillance program came to light last December, that received less attention than it should have. I am referring to leaks by FBI officials, reported in the media, expressing skepticism about the value of the program. These officials complained that the NSA had given the FBI clues to follow up most of which led nowhere. The Bureau's dissatisfaction with this assignment reflected the dominance of the criminal-investigation culture in the Bureau, despite Robert Mueller's and now Philip Mudd's efforts to change that culture. (The FBI is waiting for them to leave.) When a crime has been committed, as I have said, a focused investigation with a high probability of success is possible. That focus and that expectation of success are impossible in national security intelligence concerned with preventing a new round of surprise attacks on the nation. Intelligence is a search for the needle in the haystack. FBI agents don't like being asked to chase down clues gleaned from the NSA's interceptions, because 99 out of 100 (maybe even a higher percentage) turn out to lead nowhere. That is not what they are accustomed to when they do criminal investigations. The agents think they have better things to do with their time. Maybe they do -- maybe the root problem is that we simply don't have enough intelligence officers working on domestic threats.

What makes coordination of the three competing cultures in the intelligence community -- the military, civilian intelligence, and the FBI -- so difficult, and maybe impossible, is a profound political imbalance. The military is immensely popular, immensely powerful politically (in part because of its popularity, in part because of its support by defense contractors), disproportionately responsible for the intelligence budget, ambitious to expand its intelligence activities under the forceful leadership of Secretary Rumsfeld and Under Secretary Cambone, and for all these reasons out of the practical control of the DNI. The FBI is also immensely popular (despite its very poor performance as a domestic intelligence agency -- the worst performing in the run-up to the 9/11 attacks) and politically powerful, and furthermore it is stubbornly resistant to change. That leaves the CIA in a situation of considerable vulnerability, as an unpopular agency and therefore a natural scapegoat; and it greatly limits the power of the DNI, who finds cabinet officers (the Secretary of Defense and the Attorney General) between him and the military and Bureau intelligence services.

A notable example of the limitations of the DNI's powers, and a dramatic example of the FBI's political strength, is that the wholly improper, as well as deeply uninformed, leaks of which I have just been speaking received no rebuke from the DNI. Or for that matter from Director Mueller or Attorney General Gonzales, even though the FBI is part of the Department of Justice and at the very moment that the Bureau leakers were deriding the NSA program, the Attorney General was defending it before Congress as essential to the national security (which I believe it is).

I have mentioned the FBI's poor performance as an intelligence agency. I have documented its failures in this regard at some length in my book Uncertain Shield. The evidence continues to mount up. Just recently the New York Times published an article on the continuing saga of the FBI's computer struggles.[4] <#_ftn4> Now one knew already that the Bureau had blown $170 million on Virtual Case File, a computer system designed to enable the Bureau's agents to share information across field offices and with headquarters. Virtual Case File was abandoned late last year in favor of Sentinel, which, we learn from the article, "is still not fully staffed," and "it is not clear that the bureau has a management system in place to prevent the huge cost overruns that plagued previous incarnations of the project" -- that is, Virtual Case File. Although it is estimated that Sentinel will cost $500 million or more (surely much more), the article reports that the Justice Department's "inspector general's office said it was not yet satisfied that the overhaul [i.e., Sentinel], even if successful, would allow the bureau to share information adequately with other intelligence and law enforcement agencies." So four and a half years after 9/11, the FBI is years away from having computer capabilities adequate to its national security intelligence mission. That is a result not primarily of technical incompetence, but rather of cultural resistance rooted in the autonomy of the Bureau's field offices and the reluctance of criminal investigators to leave a documentary trail that might be discoverable in a criminal proceeding

I have concluded and argue at length in Uncertain Shield that the nation needs a true domestic intelligence agency, outside the Bureau, modeled on MI5 or on the Canadian Security Intelligence Service. (I emphasize CSIS because MI5 has a rather scary reputation, having until recently operated with far less sensitivity to civil liberties than would be tolerated in this country.) Here is one organizational change that makes compelling sense, yet was not recommended by the 9/11 Commission or the WMD Commission and was omitted from the Intelligence Reform and Terrorism Prevention Act of 2004. The FBI would retain an intelligence capability, but it would be a capability for intelligence as an adjunct to criminal investigation, which is anyway the Bureau's concept of national security intelligence. The National Security Branch would remain the Bureau, corresponding as the NSB does to Scotland Yard's special branch. The new agency, corresponding to MI5, would be free from the police culture that dominates the FBI.

The other overdue organizational recommendation, made by a commission headed by Brent Scowcroft and rejected by the Administration, is to spin off the national intelligence agencies from the Defense Department, make them their own agency or agencies and by doing so place them under more effective control by the DNI. That would improve the balance among the intelligence cultures by reducing the "twin stars" problem (Secretary of Defense and Director of National Intelligence circling warily around each

other) that is created by the Defense Department's disproportionate weight in the overall intelligence budget. In the case of the NRO and NGA, it would be, as I suggested earlier, restoring the original position of those agencies.

The culture clash is a factor, though not the only one, in the government's failure to get a good handle on domestic intelligence, a failure reflected in the eruption of a series of unnecessary controversies in recent months. Think of the recent controversies concerning

intelligence: the NSA's surveillance program outside of FISA; Dubai Ports World; and the increasing involvement of the Defense Department in domestic intelligence, an involvement not limited to the NSA's program of electronic surveillance of U.S. citizens within the United States. Other Pentagon agencies, notably "Counterintelligence Field Activity," have, as described in articles by Walter Pincus in the Washington Post, been conducting domestic intelligence on a large scale. Although CIFA's formal mission is to prevent attacks on military installations in the United States, the scale of its activities suggests a broader involvement in domestic security.

Another Pentagon agency have gotten into the domestic intelligence act is the Information Dominance Center, which developed the Able Danger data-mining program, a very promising program derailed by the involvement of Admiral Poindexter and the failure of the Administration to explain and defend the program. Another recent article in the Times reported "that the military's counterterrorism effort is hampered by bureaucratic duplication, officials said, citing in particular an overlap between new government centers," including the National Counterterrorism Center...The review found that the government-wide national security bureaucracy still does not respond rapidly and effectively to the new requirements of the counterterrorism campaign. The report said more streamlining was necessary across a broad swath of the civilian bureaucracy and military."[5] <#_ftn5>

All these controversies, even the one over Dubai's now-thwarted acquisition of U.S. port operations, are about protecting the United States from attacks from within, the domain of domestic intelligence. The controversies demonstrate the extraordinary importance and sensitivity of domestic security, which stirs acute fears both of attacks (hence the Dubai