American MI5?

The Seventh Circuit Court of Appeals' Judge Richard Posner addresses the question of the lack of adequate domestic intelligence in the United States:

The FBI came under heavy criticism last week when it was reported that the agency had failed properly to supervise the issuance of national security letters, a form of administrative subpoena used in terrorist investigations. The bureau, it turns out, was unable even to determine how many such subpoenas it has issued.

Just weeks earlier, it was discovered that the FBI had been misreporting the statistics that it uses to track its intelligence activities. The bureau attributed that lapse to its continued struggle -- five and a half years after the 9/11 attacks -- to master modern information technology. The FBI also inflates its counterterrorist statistics by defining terrorism to include the acts of obnoxious but minor political criminals, such as white supremacists, animal-rights extremists and makers of idle (but frightening) phone threats.

Is it the case that the FBI is "incapable of effective counterterrorism," as an editorial in this newspaper wondered? Does the country need "to debate again whether domestic antiterror functions should be taken from the FBI and given to a new agency modeled after Britain's MI5"?

The answer to both questions is yes.

Quite a scathing pronouncement indeed. Fans of James Bond books and movies may be delighted at the prospect of having an MI5-styled domestic intelligence agency here in the United States, but civil libertarians are apprehensive. Judge Posner notes:

Civil libertarians worry about abuses of domestic intelligence. But an agency that had no powers of arrest or prosecution, and that conceived its primary role to be to prevent the alienation of Americans who have religious or family ties to nations that harbor terrorists, rather than to run up arrest statistics, would be less likely than the FBI to engage in the promiscuous issuance of administrative subpoenas.

How would an agency that had "no powers of arrest or prosecution" do its work? This can be quite befuddling, particularly if one views counterterrorism as nothing more than routine law enforcement. This is an understandable attitude, but only because the United States has never had a real domestic intelligence unit. In the popular media, the FBI or the CIA spies on citizens within the United States itself; but the CIA is not empowered to conduct domestic intelligence gathering, and the FBI's abuses are (supposedly) checked by the Bill of Rights, particularly the Fourth (addressing searches and seizures, including nontraditional searches and seizures such as wiretapping), the Fifth (addressing self-incrimination), and the Sixth (addressing right to counsel) Amendments.

The idea of an analog to MI5 has been around for a while, particularly after 9/11, when it was apparent that FBI agents did not act on tips from Arizona regarding some of the 19 hijackers taking flying lessons but never moving on to lessons on landing planes. And yet the FBI seemed mostly to have played by the book; indeed, its extra zeal now, particularly in taking advantage of the Patriot Act, seems like an overcompensation.

The remaining worry, then, is whether or not a domestic intelligence agency with no arresting or prosecuting powers would be at all effective. Further, to whom would it report? The Secretary of the Interior? The Secretary of State? And should it be placed under the Department of Homeland Security? Should it be placed under the Director of National Intelligence? How independent should it be from the FBI? What about turf wars between the FBI and a Domestic Intelligence Agency?

My gut instinct is that Judge Posner is right. He has articulated a great rationale for having a DIA. How that would be implemented, in the current political atmosphere, is another story.