Captain's Quarters -

Has the time arrived to divorce the counterterrorism functions from the FBI and create a new agency dedicated to the task? Richard Posner believes that we have long needed to do just that, and to follow the lead of other nations in separating law enforcement from intelligence work within our borders:

Detecting terrorist plots in advance so that they can be thwarted is the business of intelligence agencies. The FBI is not an intelligence agency, and has a truncated conception of intelligence: gathering information that can be used to obtain a conviction. A crime is committed, having a definite time and place and usually witnesses and often physical evidence and even suspects. This enables a criminal investigation to be tightly focused. Prevention, in contrast, requires casting a very wide investigative net, chasing down ambiguous clues, and assembling tiny bits of information (hence the importance of information technology, which plays a limited role in criminal investigations).

The bureau lacks the tradition, the skills, the patience, the incentive structures, the recruitment criteria, the training methods, the languages, the cultural sensitivities and the career paths that national-security intelligence requires. All the bureau's intelligence operations officers undergo the full special-agent training. That training emphasizes firearms skills, arrest techniques and self-defense, and the legal rules governing criminal investigations. None of these proficiencies are germane to national-security intelligence. What could be more perverse than to train new employees for one kind of work and assign them to another for which they have not been trained?

Every major nation (and many minor ones), except the United States, concluded long ago that domestic intelligence should be separated from its counterpart to the FBI. Britain's MI5 is merely the best-known example. These nations realize that if you bury a domestic intelligence service in an agency devoted to criminal law enforcement, you end up with "intelligence-led policing," which means orienting intelligence collection and analysis not to preventing terrorist attacks but to assisting in law enforcement.

Posner wants a new organization created that has no arrest authority, one that can play a string out longer than just the ability to get a conviction. He uses as an example the arrest of several men in Miami who had big dreams of jihad, but little competence in conducting it. The FBI managed to get an infiltrator into the group, but it turned out that the mole was the only one able to arrange financing to promote their cause.

Unfortunately, the FBI arrested everyone before they could make contact with actual jihadis, as they planned to do. Posner criticizes them for stopping there, rather than conducting real counterterrorism. Noting the ridicule the group received for its amateurish operation, but Posner notes that most terrorists start off as amateurs until they can make contact with more professional terrorists who can guide them. That's what the Miami group wantd to do, and those are the people Posner says for which a real counterterrorist operation would have waited.

Will Americans put up with a domestic intelligence agency, even one without the power of arrest? Americans generally speaking have a healthy dislike of that kind of function. The FBI used to be quite adept at it, but it led to the myriad abuses of J. Edgar Hoover and a substantial corruption of the federal government. During wartime, we have more patience, but not tremendously so -- and the reaction to the limited efforts of the Bush administration to conduct surveillance on just communications shows that.

Posner probably has this analzyed properly, but don't expect this Congress to authorize a new domestic intelligence agency, not with this administration. It will have to wait until the 111th Congress convenes.