August 23, 2004  ·  Richard Posner

Enough for the moment on fair use; I’ll get back to that.

I’m interested in the report of the 9/11 Commission on the intelligence failures that led up to the 9/11 attack. I was asked to do a book review of by it the New York Times, and I agreed (the review will appear in next Sunday’s New York Times book review section, but as the Sunday Times Book Review is published the preceding Monday, my review was actually published today) because of my interest in how the nation should be responding to catastrophic risks (this turns out to be, to a considerable extent, a law and science issue). My book Catastrophe: Risk and Response will be published in November by Oxford University Press, and besides taking the opportunity created by my guest blogging to plug the book shamelessly, I am going to be discussing some of the issues raised in it.

One is how to defend against terrorism. Although the 9/11 Commission’s report is a good read, and has other virtues as well, one of its greatest weaknesses is its failure to address, other than in passing, terrorist risks that are even greater than that of another 9/11: in particular the risks of bioterrorism, nuclear terrorism, and cyberterrorism. The Commission’s recommendations are concerned essentially with preventing a more or less exact repetition of the 9/11 attacks, which are any event the least likely form of a future terrorist attack, since surprise has been lost. We give our adversaries little credit if we suppose that the only attack they can launch is the one we’ve anticipated. They didn’t make that mistake on 9/11; why should they now?

The Commission’s report, because of its timing in relation to the election and because of the unusual promotional (and self-promotional) efforts of the Commission’s members, has attracted enormous attention, particularly with respect to its marquee recommendation (as one commentator put it) for the creation of a new position of National Intelligence Director.

With all due respect for Senator Roberts, his proposal, at least as described by the New York Times, seems to me to highlight the problems with the Commission’s report rather than to solve them. He proposes to break the CIA into three parts, and also to create a new agency from within the DIA (Defense Intelligence Agency), and to place all the intelligence agencies under the direction of the new NID (National Intelligence Director). It is unclear what he wants to do with the uniformed intelligence services (Army, Navy, etc.), so it’s unclear just how many intelligence agencies he envisages the NID directing, but it is at least 15 and could go as high as 18.

The agencies are highly diverse. One for example designs and launches spy satellites; another analyzes intelligence for the State Department; another does satellite mapping; another is the FBI’s counterrorist division; and so on and on. No one seems to have considered whether it makes good management sense to place all these agencies under the direction of a single official. There is some optimum span of control, which the proposal seems to exceed. It would be highly unusual in any organization for 18 divisions to report directly to the president, especially if they were as diverse as our intelligence agencies. Probably the agencies should be grouped. Well, they are grouped; most of them are part of the Defense Department. The proposal would spin them off, them put them all under the NID. Sounds pretty dubious.

There is also a point that readers of Larry’s blog should particularly appreciate: the dangers of centralization. Of course to have multiple overlapping intelligence agencies creates a degree of chaos (and there are limits, which breaking up the CIA might well exceed); but it also creates competition among organizations having different organizational cultures, personnel policies, traditions, methods, etc. Were the agencies to be welded into a single organization, the inevitable tendency would be the substitution of uniformity for heterogeneity and centralized control for a competitive “market” in which rival agencies strive to get their views accepted by the President. Would there be a net improvement? Neither the 9/11 Commission, with its less ambitious project of centralization, nor Senator Roberts, with his more ambitious one, has explored this vital question in depth, at least so far as an outsider is able to judge.

Against all this it can be argued that we have to do something, because we were surprised in 9/11, so we must have been doing something wrong. Not necessarily. Yesterday my wife and I happened to attend a surprise 60th birthday party thrown by the woman’s husband. He had thrown a surprise party for her on her 50th birthday. Nevertheless, she was completely surprised–indeed, stunned–by the party yesterday.

It is easy to surprise people, including entire nations.

  • Legal Diva

    We seem to be in a constant state of “reaction” to the 9/11 attacks. The other risks, perhaps things we have yet to even conceive of, remain passive rather than active, so there is nothing yet to react to. This is a problem. Terrorists are motivated and will remain innovative. If we don’t keep up we will continue to be surprised. But there’s no way they will ever sneak up on us and destroy the Twin Towers again. We’ve got that one covered.

  • Anonymous

    If you’re going to plug the book, plug it. Here’s the link to buy it from Oxford:

  • baratunde

    I’m really glad you raised the centralization issue. I had done a bit of research into cyberterrorism back in college, and what I found then has turned out to be even more true: those bent on terrorist acts do so in a highly decentralized fashion. There is very little traditional command-and-control. So how do we respond to a decentralizing opponent? By centralizing??

    What Sen. Roberts may be responding to, and in his way, missing, is the need for coordination, which does not necessarily mean centralization. Improving the flow of information between competing agencies is the goal, but giving them all the same boss is not necessarily the best means.

    Of course, part of me is all for breaking up an agency that trains and finances anti-democratic and anti-liberal militia forces around the world :)

    Tough call.
    goodcrimethink blog

  • Ramesh Mantha

    Judge Posner

    You refer to the “competition among organizations having different organizational cultures, personnel policies, traditions, methods, etc.” as a desirable method of generating better intelligence. I’ve heard this echoed repeatedly elsewhere and it certainly has an intuitive appeal. The concept of competition implies that one view wins out and is subsequently manifested in policy in some way that actually leads to a better outcome. In this case the outcome is presumably fewer (or no) future terrorist attacks. However, how does this “chaos” actually lead to better outcomes in an environment like bureaucratic Washington? What approach would more usefully harness this chaos than the 9/11 commision’s?

  • M. Mortazavi

    Most important benefit of multiple intelligence organizations is a certain fault-resilience that they together add. That fault resilience will be missing in a single organization.

    If there’s a single organization, and that single organization gets things wrong, lives could be ruined. Multiple organizations add ability to view facts from multiple angles and with different attitudes.

    Problem of U.S. security is not one of organization but one that is caused by a global posture that breads enemies by the carnage it unleashes. To minimize backlash, we need to reduce the conflictual attitude in dealing with the world and build an attitude based on “commerce” and “exchange.”

  • Robert Apgood

    Just to puctuate Mr. Posner’s observations about the “risks of bioterrorism, nuclear terrorism, and cyberterrorism,” my experience leads me to believe that the DOJ simply doesn’t recognize these very real dangers.
    I attempted to report a potential cyberterrorism issue to the local U.S. Attorney whose minion just “didn’t get it.” It seemed that his position was that if the threat didn’t involve guns and money, then the threat wasn’t really a threat at all…

  • raoul

    The main problem that I have with the idea of completely restructuring our intelligence apparatus is that the motivation is purely political and will only result in a horse and pony show that may cause irreparable damage.

    A major overhaul�s only purpose is to show the voters that something is being done without any regard as to its effect. However, the solution is not a major overhaul but a very basic change in focus from spying on the Soviets to spying on the Islamic Jihadists.

    Admittedly there was a failure by law enforcement to act prior to 911. However, the mad dash to reform the intelligence community is a misdirection tactic used by the current administration to deflect the indisputable truth that they leaned on the CIA (heavily) to color their intelligence regarding the presence of WMDs. There were numerous news stories, prior to 911, about CIA analysts complaining about the administration�s efforts to politicize and distort the intelligence for their own needs. There was no failure by the intelligence community in its assessment of the Iraqi military capabilities. They were dead on. They were correct about everything.

    The way to effectively fight terrorism is to admit to ourselves that if we build a Maginot Line around our entire country and tear up the Bill of Rights, we will not be able to stop every single terrorist attack, from the Islamic Jihadists or anyone else. We will be hit again. Dedicating our resources to the impossible task of stopping every single attack from happening will only distract us form the task at hand of fighting the terrorists.

    (1) We must focus a certain portion of our current intelligence capability on the Islamic Jihadists (not all of it because there are still threats from traditional enemy nation states);
    (2) We must not show fear by abrogating our freedoms and our way of life at the first sign of danger;
    (3) We must ensure that we limit, to the greatest degree possible, the effects of domestic politics on intelligence analysis;
    (4) We must decide on a new set of rules that find a suitable middle ground between the rules of war and the rules of law enforcement;
    (5) We need to accept that our actions have consequences and that we do not live in a vacuum.

  • joe

    What about changing our foreign policy… and being more conscious of what aspects of our culture come to define us?

  • Anonymous

    yea! privatize the cia, it’ll go great with private military contractors. if the people ever do get their country back, it’ll probably be after corporatism has picked it clean down to the bones.

    the bush administration’s direct inteference in the intelligence community’s investigations before 9-11 don’t seem to count as possible problems with our intelligence gathering capabilities. all we hear about is the thing with the bin laden family getting out on planes when the planes were downed, so that ends up looking like some important aspect of the debate, rather than less wiggle-able factoids such as the fact that at least two investigations of individual members of the bin laden family were blocked.

    the cia works, for *us*, we the people — carlyle harriman brown kellog root et al do not. maybe if we weren’t running around looking for an easy throat to tear out (the cia being easy b/c everybody’s used to thinking of them as the bad guys) they could do their job rather than having to worry about ending up twisting in the wind if they can’t wrest themselves out from under the war/energy industry politics doing their damndest to control the outcome of intelligence work.

    at least we know which team really holds the reigns. they’re making a killing off it, and there’s no end in sight. given how much money they make off war, what motive do they have to not keep finding/provoking new hot spots? don’t believe it when they say these new wars are about ethnic and religious conficts, at least not without checking into whether or not we’re funding their intensification. cripes, here i am arguing for factoring the history of our foreign policy into our evaluation of its results.. silly..

  • lupus

    Why not just eliminate the CIA all together? I’m tired of bumbling federal agencies that claim effectiveness and large budgets under the cloak of secrecy. If their successes cannot be revealed
    in order to preserve national security one can only imagine the failures, less dramatic than 9/11,
    that are being suppressed. Public, commercial sources of information are doing a better job than
    our intelligence bureaucracies. Americans will take care of themselves, as they always have. Let
    our spooks find real jobs.

  • Chuck

    I’m in the midst of reading “Imperial Hubris: Why the West is Losing the War on Terror” by Anonymous, a serving CIA agent since revealed to be Michael Scheuer. If this guy is anywhere within the ball park in his assessment of the threat posed by al Qaeda, we, our children and grandchildren are in for some very rough times. As he sees it, a big part of our problem is our nearly complete misreading of what bin Laden and AQ is all about. And the reasons for this are deeply embedded within our culture – media, government institutions, the whole pervasive ball of wax. The author is an equal opportunity basher of the intelligence and diplomatic establishments, the military, and all administrations going back to Eisenhower and Truman. But especially the Bush admin and the military and intelligence bureaucracies after 9/11. Scary as it is, his arguments make a lot of sense to me, and correlate with a lot of other stuff I’ve read re the dysfunctions of the military and intelligence establishments.

    Scheuer has been muzzled from further media appearances, which I think is tragic, since these are what gets the book attention. The American people NEED to read this book. It should be assigned reading for every sitting member of Congress, especially. And they ought to put off any shuffleing of deck chairs until it and other similar analyses have been thoroughly discussed. If Scheuer is no more than, say, 1/4 right in his assessments, he must be listened to.

  • Chuck

    I meant to also mention that the Clinton crowd came in for plenty of whacks.

  • Trevor Hill

    The fundamental problem here is that the influence of the U.S. has outgrown its democratic base. In many significant respects, the U.S. is in fact controlling the lives of people in far-flung portions of the globe; however, these people are not represented in our republic.

    I think we have unfortunately passed beyond the time in which other nations might have considered joining our union (the United States), and instead think they will get representation through the U.N. or somesuch. I doubt very much that the U.N. can become anything like what the U.S. has become in terms of a functioning basic structure for economic growth and further integration and harmonization.

    I have thought of the possibility of establishing some sort of organization to advise Congress or the President on matters of foreign policy, which would be made up of foreign representatives, but to have an appeasing effect around the world, it would have to at least have the patina of a legitimate system to voice their concerns to those guiding the U.S. It may be that something like this will eventually have to be done in order to prevent an inevitable backlash against a single superpower acting in its own interest, and treating much of the world as an externality.

    Recently, re-reading the story of Cicero’s early life, I thought of our current situation and its similarity to the problems the Romans faced at that time. Rome’s influence had begun to affect the surrounding areas to such an extent that non-citizens from surrounding areas began to demand more of a say in things. The optimates, or conservative upper-class party, refused to entertain the idea of extending citizenship to the outsiders. The populares, or the popular party, supported the idea, at least as a way to appease them (especially in the person of one Drusus).

    In the end, Drusus was murdered, Rome was attacked by the surrounding tribes, and a long and bloody war ensued. In the end, they were forced to grant the citizenships anyway in order to bring most of the tribes over to their side and crush the final few.

  • Palooka

    Judge Posner,

    The suggestion of breaking the CIA up seems, at least to me, a rash decision with dangerous implications. I am not an intelligence expert, and I have no definitive opinion on this subject, but it seems absurd to call for such a gargantuan restructuring. But, perhaps, that is exactly what is needed. I sure haven’t heard the case for it yet.

    You have pretty much answered the questions I had about IP terms, but maybe you can elaborate on those more. One reason why I enjoy your writing so much is we are kindred economists. I am sure much of your reasoning is foreign to many in the lawyer class, and misunderstanding the source of unwarranted criticism. I have previously thought the ridiculous terms of some IP were indefensible. As you suggest, the amount of additional incentive provided by recent extensions is negligible. For this reason I find such extension indefensible. They are nothing more than windfalls for IP holders. Is there, as a matter of policy, a defense for extending those terms as was done in the acts you have mentioned? I found your comments on extending Fair Use interesting, and while I may applaud the result, I am not sure if I approve of the method (you haven’t quite persuaded me on pragamtism, yet).


  • Rolo Timassie

    Arguably the single most important response to 9/11 has already occurred, which is that we have been made aware that there is a significant risk of catastrophic terrorist attacks within the United States. The mental constructs we use to go about our daily business are at least as important as the technological and administrative measures we have in place. For example, as Roberta Wohlstetter famously showed (Pearl Harbor: Warning and Decision, 1962), the U.S. had — buried amidst considerable noise — all of the signal intelligence it needed prior to the Japanese attack on Pearl Harbor to detect at least some warning of the impending attack. The failure to do so was not because the signals weren’t there, but because we were not expecting to see them. It’s a bit like the drawing in psychology class that appears to be meaningless blotches, until you’re told it’s a cow. Once you see the cow, you can’t imagine how you looked at the picture without seeing the cow.

    Of course, mere awareness of risk is not enough. There is a line of sociology articles and books, including Diane Vaughan’s on the Challenger disaster (The Challenger Launch Decision, 1996), that demonstrate that people and organizations often assume that the non-occurrence of a disaster after taking a risk means that the risk has become less likely. Richard Feynman noted with astonishment internal NASA estimates pre-1986 that the risk of a shuttle failure was less than 1 in 100,000 launches, which was orders of magnitude less than the track record for space launches. Our challenge going forward will be to maintain the same (or greater) level of vigilance in the absence of another attack.

  • Rolo Timassie

    Whoops, it’s a dog, not a cow.

  • v

    Judge Posner,
    Would’nt centralizing the intelligence apparatus give far too much power to the person at the top of this organization? After all, whoever controls the information flow ends up with enormous power. I feel that this may be a problem with Sen. Roberts’ proposal.

  • Anonymous

    the most important thing here is perspective.

    as much as the republicans want americans to fear “islamic” terrorists, we submit that this movement is no more or less a threat than the irish republican army, ETA, or hamas, or any other of the hundreds of terrorist groups that have plagued the rest of the world. bin laden just had more imagination and he introduced america to what the british, spanish, french and the rest of old europe have been dealing with for decades.

    the british didn’t claim any right to invade and occupy america when irish-americans were shipping guns and raising money for ira terrorists.

    there are no trash cans in the london underground, there are routine sweeps with bomb sniffing dogs, warnings are prominently posted to be report unattended baggage.. and people get on with their lives.

    a rational response requires a rational assesment of the threat – not a look back at history.

    certainly 9/11 was a terrible event, but 19 guys with knives is a long way from a nuclear weapon being floated up the potomac. where is the straight line between these two events?

    as long as the focus of the threat is “weapons of mass destruction” unbalanced and unreasonable solutions will result. such as the invasion of iraq.

    when the threat is anihilation, even when the risk is remote, any action is justified. this is no way to run a business.

    a realistic response should consider a realistic assesment of the threat in which case one need look no further than israel to predict with some reasonable probablilty that the next level of escalation is suicide bombers on city buses, not nuclear bombs.

    it is hard to imagine how any reform at the federal level is going to have an impact on the most probable threat. reform, if it is needed, is needed at the local level.

    of course, if america would do something about the more than one million palestinians who are living in refugee camps, whose land is occupied by an american funded and equipped hostile army, and who are entering the third generation of such desperate existence this might help too.

    delaying the rapture to support human rights seems like the christian thing to do.

  • n8o

    According to one analysis of the 9/11 commission’s report, “a competitive �market� in which rival agencies strive to get their views accepted by the President” is what lead to certain parties within the CIA to push flimsy evidence concerning Iraq’s (now discredited) implication in 9/11.

    While I don’t think centralized intelligence will change this behaviour, do we really want intelligence agencies “competing” over what they want the President to think?

  • Allan Schiffman

    From his TV interviews, Senator Roberts seems to be proposing the creation of four superagencies to be responsible for intelligence collection, analysis, covert action and “science and technology”. He’s also made it clear that in his proposal, tactical military intelligence in the service of the warfighter is to be left to the services.

    Given the proposal covers the reorganization of 15+ agencies with a combined budget of over forty billion dollars, it seems quite silly to characterize it as “breaking up the CIA”, which is only about an eighth of the overall intelligence establishment. The NSA alone, for example, is about 30% larger than the CIA, likewise for the NRO. Rather than fixating on the CIA and a prospective intelligence Czar, consider the big picture.

  • David

    I realize this is off-topic, but perhaps Mr. Posner would be inclined to address the question (which follows on the heated discussion in the blogosphere of Michelle Malkin’s pro-internment book In Defense of Internment at Eric Muller’s blog [] and elsewhere) .

    In a panel discussion published in Harper’s Magazine, you say:

    POSNER: Actually, I think it is like Korematsu, but then I actually think Korematsu was correctly decided. In 1942, there was a real fear of a possible Japanese invasion of the West Coast. I believe there had actually been some minor shelling of the Oregon coast by a Japanese submarine. Unquestionably, the order excluding people of Japanese ancestry from the West Coast was tainted by racial prejudice.
    On the other hand, many Japanese Americans had refused to swear unqualified allegiance to the United States. Good or bad, it was a military order in a frightening war. Although the majority opinion, written by Justice Hugo Black, is very poor, the decision itself is defensible. The Court could have said: We interpret the Constitution to allow racial discrimination by government when there are urgent reasons for it, and if the military in the middle of a world war says we have to do this, then we’re going to defer, because the Constitution is not a suicide pact.” (my emphasis)

    It is one thing to say that, theoretically, there might be good reasons for curtail the rights and freedoms of American citizens due to an impending attack. It’s another to say that the events leading up to Korematsu constituted, in fact, a good reason.

    As the game show host might ask, “Is that your final answer?”

  • Raoul

    “Good or bad, it was a military order in a frightening war.”

    WWII was a war, not like the little “storming the crack house” operation we have going on now. 40 million people died in that war. It was a different era. Americans did not know if they were going to make it or not. At least the fear was rational. Compared to dropping nuclear weapons on metropolitan centers just to see what they would do, Korematsu seems insignificant.

    Korematsu and all judicial rulings must be looked at in context. Racism used to be more relevant than it is today. At one time in our planet�s history there was nothing wrong with racism, in that everyone was defined by their race. Today, race is less important. We have evolved. Thus, Korematsu today would be much more offensive than it was then. Now having said that, it is my belief it is imperative that we adhere to our value of freedom at all costs, even if such adherence leads to our unqualified destruction. Better the Constitution be a suicide pact than a document without meaning.

  • Illinois Lawyer

    I think Korematsu is always worth discussing, but given this thread, perhaps we can tie it to 9/11.

    Korematsu was decided during a conflict in which the US lost 400,000 + in an era where our population was some fraction of what it is currently. Lincoln’s suspension of Habeas was the better part of century prior to Korematsu, and that war lost something like 600,000, against a population even smaller still. On 9/11 we lost on the order of 3000 people at a time when our nation is somewhere between 250 million and 300 million in population.

    Korematsu can’t be good law during anything approaching normal times, however, it wasn’t a particularly normal period, but in the midst of one our nation’s bloodiest wars. I happen to fall on the side of those against the Korematsu decision, like the previous poster, but I don’t feel it is doing justice to the decision if you take the case out of context…Which brings me to 9/11.

    9/11 is exactly the type of event we have to be careful of, specifically our reactions to such an event. On the one hand, many good-hearted people feel (and honestly so) that 9/11 was the worst disaster that has befallen America. Well intentioned folks don’t always appreciate that our nation loses about the same number of people lost on 9/11, every two days or so, to traffic fatalities. Emotions, understandably, make it difficult to argue what needs to be argued. As bad as 9/11 was, it simply pales in comparison to the historical realities that existed at the time of Korematsu.

    What I find especially troubling is the number of people willing to allow the Executive branch to (more or less) suspend traditional Constitutional protections. It is true that nothing on the scale of Lincoln’s general suspension of the Writ or the internment seen in the days Korematsu exists presently. However, if one steps back and looks at Gitmo/Camp X-ray, use of FISA warrants, monitoring of library records, “no-fly” lists, etc, it seems to be of the same character of action.

    In the wake of 9/11, whether the Constitution should be a “suicide pact” is popular arguement for those justifying the recent expansion of Executive authority. Maybe I’m just too cynical, but comparing 9/11 to WW2 or the Civil War diminishes these greater tragedies and makes for terrible policy. If another terrorist attack were to occur, I fear the willingness of many reasonable people to allow even more draconian policies.

    I think its important to realize, free societies are not the safest societies. Constitutional protections cost lives (think of our biased judicial system favoring the accused.) The question is not, “Will we allow our system of limited government to be abandoned or suspended?”(history and analysis of the present proves we will.) Rather, it seems to me, there are two questions, “What conditions allow for these suspensions of limited gov’t?” and given those conditions are met, “What actions, in particular, can the Executive branch undertake?”

  • raf

    Illinois Lawyer seems to imply that the correct course of action is to wait until a sufficient disaster occurs to justify a response. Is no preventive measure ever allowable? Proportional response in VietNam was arguably disastrous — the war could perhaps have been ended quickly with extreme overkill in the early days. Or have escalated catastrophically. Someone has to decide these things, and I doubt I will approve of whatever they decide, but I am not ready to categorically deny the validity of preventive measures.

  • Jardinero1

    Although my own psyche has been injured by 9/11 and I grieve for the families of the dead, on a strictly rational level I have to concur with Illinois Lawyer.
    Terrorism in the US is a statistical non-event. It falls in line with lightning strikes and great-white shark attacks. Historians will look back at this fifty years from now and compare this to previous periods of mass hysteria, salem witch trials, red scare, et al. They will ask “What were they thinking? They abandonded their democratic principles, trampled their own civil liberties and unleashed what may still turn out to be a global religious war.” It’s sad, really sad.

  • markm

    “Constitutional protections cost lives.” And allowing the government to take too much power costs many more lives. The entire 20th century was a horrific demonstration of that.

    One thing that hasn’t been mentioned yet: a free society’s final protection is it’s own citizens. It’s the only one that worked even partially on 9/11/2001. If the government and airlines hadn’t spent 30-some years teaching travelers not to try to protect themselves on aircraft, I doubt that the hijackers would have been able to take over even one airplane.

  • raf

    Terrorism in the US is not a significant factor YET. Enemy atacks on the US were not yet statistically significant in early 1942, either, but it was possible to predict that the trend was changing. With all the uproar about how “the government” could/should have prevented the 9/11 attacks, I am skeptical of the attitude following another attack being more understanding.

    If this were a private tort case, would not the occurance of a previous incident in an area of your responsibility increase your culpability if you failed to recognize an increased liklihood of hazard and did not take preventive action?

    Just by the way, I personally think the better solution to the airline hijack problem would have been to arm all the passengers, or at least the pilots. I would be sympathetic to the argument that the best defense against further terrorism is to require all able persons to arm themselves so as to be able to take action if warranted. But the argument that the situation isn’t bad enough to warrant any preventive action strikes me as irresponsible.