Transcript of Speech Delivered by Richard A. Posner

controversy) and of civil-liberties abuses (hence the NSA, CIFA, TIA, and Able Danger controversies), fears that however groundless (I think they are largely groundless) require focused attention by the leadership of the intelligence community on domestic intelligence -- and for the further reason that domestic intelligence is a cockpit of conflict among the three separate intelligence cultures that I have described.

I do not sense such focus. I do not sense the DNI's taking a leadership role, though of course he may be operating effectively behind the scenes, concealed from an outsider like myself. (The DNI is in fact largely invisible to the world outside the national security community, and this I take to be another failure of the community's public relations.) I conjecture that the cultural imbalance is stifling effective leadership on the domestic-intelligence front -- the Pentagon's huge budget, its control of the national intelligence agencies, the able and aggressive Secretary of Defense and his able and aggressive Under Secretary for Intelligence, and the FBI's apparent freedom from control by its nominal superiors. We not only have no real domestic intelligence agency; we have no official with sole and comprehensive responsibility for domestic intelligence. It is no surprise that gaps in domestic intelligence are being filled by controversial ad hoc initiatives.

I want, in deference to my audience, to veer briefly into the area of legal policy, and to suggest that the best way to end one of these controversies -- the debate over the propriety of the National Security Agency's conducting electronic surveillance outside the framework of the Foreign Intelligence Surveillance Act -- is for Congress to enact a new statute along different lines from those currently in contemplation.

The Administration is right to point out that FISA, enacted in 1978 -- long before the danger of global terrorism was recognized and electronic surveillance was transformed by the digital revolution -- is dangerously obsolete. It retains value as a framework for monitoring the communications of known terrorists, but it is hopeless as a framework for detecting terrorists. It requires that surveillance be conducted pursuant to warrants based on probable cause to believe that the target of surveillance is a terrorist, when the desperate need is to find out who is a terrorist.

Critics point out that surveillance not cabined by a probable-cause requirement produces many false positives (intercepts that prove upon investigation to have no intelligence value). That is not a sound criticism. National security intelligence is, as I said earlier, a search for the needle in a haystack. The intelligence services must cast a wide net with a fine mesh to catch the clues that may enable the next attack to be prevented. The NSA's initial trolling for clues is done by computer search programs, which do not invade privacy because search programs arenot sentient beings. The programs pick out a tiny percentage of communications to be read by (human) intelligence officers, and a small subset of these will turn out to have intelligence value and spur an investigation. Some of them may be communications to which a U.S. citizen is a party.

The civil liberties concerns that revelation of the NSA's program has aroused can be allayed without gutting the program. Not, however, by relaxing while retaining the standard for obtaining a warrant. Instead of requiring probable cause to believe the target a terrorist, FISA could be amended to require merely reasonable suspicion. But even that would be too restrictive. And the lower the standard for getting a warrant, the less of a filter a warrant requirement creates. If all that the government is required to state in its application is that it thinks an interception might yield intelligence information, judges will have no basis for refusing to grant the application.

It is a mistake to think that the only way to prevent abuses of the NSA's surveillance program is by requiring warrants. Congress could enact a statute that would subject warrantless electronic surveillance to effective oversight and specific legal controls. The statute might, for example, create a steering committee for national security electronic surveillance composed of the Attorney General, the Director of National Intelligence, the Secretary of Homeland Security (chairman), and a senior or retired federal judge or Justice appointed by the Chief Justice of the United States. The committee would monitor all such surveillance to assure compliance with the Constitution and laws.

The NSA could be required to submit to the FISA court, every six months, a list of the names and other identifying information of all persons whose communications had been intercepted without a warrant in the previous six months, with a brief statement of why these individuals had been targeted.

If the court concluded that an interception had been inappropriate, it would so report to the steering committee and the congressional intelligence committees.

The statute would authorize "national security electronic surveillance"

outside FISA's existing framework, provided that Congress declared a national emergency and the President certified that such surveillance was necessary in the national interest. Warrants would continue to be required for all physical searches and for all electronic surveillance for which FISA's existing probable-cause requirement could be satisfied. "National security" would be defined narrowly, excluding "ecoterrorism,"

animal-rights terrorism, and other forms of political violence that, though criminal and deplorable, do not endanger the nation. The statute would sunset after five years, or sooner if the declaration of national emergency was rescinded.

Most important, any use of intercepted information for any purpose other than "national security" as narrowly defined in the statute would be forbidden. Information could not be used as evidence or leads in a prosecution for ordinary crime, to alleviate concern that "wild talk"

picked up by electronic surveillance would lead to criminal investigations unrelated to national security. The responsible officials would be required to certify to the FISA court annually that there had been no violations of the statute during the preceding year. False certification would be punishable as perjury. But lawsuits challenging the legality of the NSA's current warrantless surveillance program would be forbidden. Such lawsuits would distract officials from their important duties, to no purpose given the new statute.

Here is a project on which I am sure the lawyers in this room would have much to contribute; I hope you are being consulted.

But to return in closing to the issue of organization, I am well aware of the political obstacles to what seems to me to be the correct direction for the reform of the intelligence system. But there is value in speculation. American politics are in continuous flux; what is politically unthinkable one year can in a few years become a political imperative. I hope it will not take another terrorist attack to put us back on the path to true reform: an independent DCI, independent national intelligence agencies, a domestic intelligence agency, and, once more at the center of the spider's web that is national security intelligence, the Central Intelligence Agency.

[1] <#_ftnref1> Judge, U.S. Court of Appeals for the Seventh Circuit; Senior Lecturer, University of Chicago Law School. This is the revised text of a talk given at the biennial offsite conference of the General Counsel's Office of the Central Intelligence Agency on March 24, 2006.

[2] <#_ftnref2> Scott Shane, "Year into Revamped Spying, Troubles and Some Progress," New York Times, Feb. 28, 2006, p. A12.

[3] <#_ftnref3> Ephraim Kahana, "Analyzing Israel's Intelligence Failures," 18 International Journal of Intelligence and Counterintelligence

262 (2005).

[4] <#_ftnref4> Eric Lichtblau, "Cost Concerns for F.B.I. Overhaul," New York Times, March 14, p. A20.

[5] <#_ftnref5> Thom Hanker, "Study Is Said to Find Overlap in U.S.

Counterterror Effort," New York Times, Mar. 18,p. A5.