August 28, 2004 · Richard Posner
I thank commenter Craig for discovering that my review of the 9/11 Commission’s report, to be published tomorrow in the New York Times Book Review section, is now online. The review was written before Senator Roberts’ proposal to break up the CIA, but offers several reasons for thinking that the failure to prevent the 9/11 attacks, if it was indeed a culpable failure rather than an inevitable one, was primarily a managerial rather than a structural failure.
Issues of government organization are baffling. Where you have a boundary, you have a turf war; and if you erase the boundary, you lose diversity and competition, and with it the power of intelligent control. If only one person reports to you, you’re pretty much at his mercy; he’ll tell you just as much as he wants to.
I suggest in my review (despite my general skepticism about structural solutions) carving the domestic intelligence function out of the FBI and creating a stand-alone domestic intelligence agency, similar to England’s MI5; and I point out that MI5 and MI6 (England’s counterpart to the CIA) work well together because they’re both intelligence agencies. The FBI doesn’t work well with the CIA, because the FBI is not an intelligence agency, but a criminal investigation agency, in other words a plainclothes police department.
MI5 has no power of arrest; the power to arrest terrorists is lodged in the Special Branch of Scotland Yard, Scotland Yard being England’s counterpart to the FBI. Presumably MI5 has some of the same problems of coordinating with the Special Branch as the CIA does in coordinating with the FBI; in both cases, you have an intelligence agency working with a criminal investigation agency. But I think–though could well be wrong–that a section of the FBI that was, like the Special Branch of Scotland Yard, specialized to arresting and otherwise assisting in the criminal prosecution of terrorists would make a better fit with a domestic intelligence agency modeled on MI5 than the current counteterrorism branch of the FBI makes with the rest of the FBI. Because the dominant culture of the FBI is and probably always will be that of criminal investigating, intelligence officers lodged in the FBI will always seem odd men out; a person wanting a career in intelligence will not be attracted to working for a police deparment. But it is quite otherwise with someone wanting a career in the criminal investigation and prosecution of terrorists, a perfectly respectable and exciting field of police work. Such a unit in the FBI could holds its head high, and would at the same time have strong incentives to cooperate with a domestic intelligence agency.
Or so one can hope.