We Need Our Own MI5

By Richard A. Posner
Tuesday, August 15, 2006

What lessons can we draw from the recent foiled plot to bring down U.S.-bound airliners with liquid bombs?

The first concerns the shrewdness of al-Qaeda and its affiliates in continuing to focus their destructive efforts on civil aviation. Death in a plane crash is one of the "dreaded" forms of death that psychologists remind us arouse far more fear than others that are much more probable. The concern with air safety, coupled with the fact that protection against terrorist attacks on aviation can be strengthened only at great cost in convenience to travelers, makes the recently foiled plot merely a partial failure for the terrorists. The episode is going to make air travel significantly more costly. The additional costs are no less real for being largely nonpecuniary (fear, and loss of time -- which, ironically, will result in some substitution of less safe forms of travel, namely automobile travel).

The plot has also revealed the indispensability of good counterterrorism intelligence. A defense against terrorists, as against other enemies of the nation, must be multilayered to have a reasonable chance of being effective. One of the outer defenses is intelligence, designed to detect plots in advance so that they can be thwarted. One of the inner defenses is preventing an attack at the last minute, as by airport screening for weapons.

The inner defense would have failed in the recent episode because the equipment for scanning hand luggage does not detect liquid explosives. (The liquid-bomb threat had been known since a similar al-Qaeda plot was foiled in 1995, but virtually nothing had been done to counter it.) Fortunately, the outer defense succeeded.

Intelligence succeeded in part because of the work of MI5, England's domestic intelligence agency. 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.

A New York Times article Sunday on British methods says the British could wait until the last minute because they can detain suspects for up to 28 days without giving them a judicial hearing, while we in the United States can do so for only 48 hours. That is not correct. Normally, it is true, an arrested person in this country is entitled to a probable-cause hearing within 48 hours. But the rule is waived in extraordinary circumstances. The government may have a compelling justification for holding a suspected terrorist incommunicado for more than 48 hours, namely, to avoid tipping off his accomplices that the government has seized him and may be getting information from him that can be used to make further arrests.

But to the extent that our laws do handicap us in fighting terrorism, it is one more sign that we do not take the threat of terrorism seriously enough to be willing to reexamine a commitment to a rather extravagant conception of civil liberties that was formed in a different and safer era.

There is a silver lining in all this: not that the Heathrow plot was foiled, because, as I said, it was only a partial failure. The silver lining is that our close call may shake us out of our complacency. Because we have not been attacked since 2001, we are (or were until last week) beginning to feel safe. We were ostriches. An article in the current Atlantic Monthly proclaims victory over al-Qaeda, arguing that by depriving Osama bin Laden of his sanctuary in Afghanistan we defeated al-Qaeda, and the only danger now is that we will overreact to a diminished terrorist threat. Bin Laden was indeed deprived of his Afghanistan sanctuary, but he promptly found another one, in northwestern Pakistan. Though the plotters of the liquid-bomb attack are British citizens, the plot, in its scope and objective, has al-Qaeda written all over it.

The ostriches may retreat to the claim that "our" Muslims, unlike those in Britain and Canada, are fully integrated into American society and so pose no threat. And the percentage of American Muslims who are potential terrorists is indeed smaller than the corresponding percentages in either Britain or Canada. But there are many more American Muslims than there are British or Canadian ones, and we now know that British (and presumably Canadian) Muslim extremists are bent on attacking the United States, not just their own societies. We cannot afford to assume that we are safe. Perhaps we will now abandon that comfortable assumption.

The writer is a U.S. appeals court judge and author most recently of "Uncertain Shield: The U.S. Intelligence System in the Throes of Reform."


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