August 24, 2004 · Richard Posner
Many excellent comments on my posting. I can’t respond to all of them, but I do want to respond to two of them.
One commenter said (I’m paraphrasing): why would breaking up the CIA be a big deal? It accounts for only 12 percent of the national intelligence budget. What that overlooks is that high-tech intelligence agencies, like the NSA (surveillance of communications worldwide) and the NRO (develops and launches spy satellites), are very expensive because they are capital-intensive as well as requiring substantial staffs, but much of their intelligence output is input into the analytical and operational divisions of the CIA, the FBI’s counterterrorist division, and the State Department’s Bureau of Intelligence and Research. It is important not to disrupt those analytical and operational activities.
It’s also important to recognize the importance of the phenomenon that economists refer to as “path dependence”: where you end up may depend on where you started from, rather than on optimal system design as an original matter. If we were starting afresh, we might well configure the intelligence agencies differently. But imagine the transition costs involved in a from-the-ground-up reorganization of our 15 intelligence agencies.
The second comment I want to respond to may seem unrelated to the first, yet turns out to be closely related. This commenter takes issues with a statement that I once made to the effect that I thought the Supreme Court had made the correct decision in the Korematsu case, when it refused to invalidate an army order, approved by President Roosevelt (and by Earl Warren, who at the time was the governor of California), removing persons of Japanese extraction from the west coast in 1942, shortly after Pearl Harbor. In hindsight, it is apparent that the order was erroneous–that the Japanese-Americans did not pose a threat to the nation and that the order was influenced by racism. But the wisdom of hindsight is treacherous. In March of 1942 when the order was issued, just three months after Pearl Harbor, there was not only fear that Japan would attack the continental United States, but also a need to demonstrate resoluteness in a war for which the nation was not prepared.
The wisdom of hindsight infected the 9/11 Commission’s report and the reaction to it by Senate Roberts and others. Hindsight is omniscent. In hindsight we know that Al Qaeda planned to attack the United States by infiltrating its operatives to learn to fly commercial aircraft and take over and crash those aircraft into buildings. The natural reaction is, since we know it now, why didn’t we know it then? We must have been asleep at the switch, and so we have to revamp our intelligence structure from the ground up. There are two non sequiturs here. First, that if you’re surprised by something, it shows you were culpable. Second, that if there is a system failure, the solution is to change the table of organization.