Yesterday, a memorandum I helped write, "Countering Terrorism --- How Not To Do It" with other Veteran Intelligence Professionals for Sanity was published on ConsortiumNews.com. In light of last week's news about the FBI's attempt to breath new life into Poindexter's long discredited "Total Information Awareness" program, among other "how NOT To Do It" things, we feel an approach to the issues from a pragmatic law enforcement/intelligence viewpoint -- what works and what doesn't -- is in order. We explain how a unique consensus is developing between pragmatists and civil libertarians. In any event, I for one, am hopping on the ACLU's bus to Washington D.C. in a few days for their June 26th "Day of Action to Restore Law and Justice" and any and all comments related to these dual goals are appreciated.
On June 6, 2002, former FBI Special Agent Coleen Rowley testified before the Senate Committee on the Judiciary about the attacks of Sept. 11, 2001 and how the FBI could do a better job detecting and disrupting terrorism. Time magazine had acquired (not from Rowley) a long letter she wrote to FBI Director Mueller listing a string of lapses in the month before 9/11 that helped account for the failure to prevent the attacks. As painful and embarrassing as it was after such tragedy to unravel the mistakes, Rowley insisted that the unraveling was necessary in order to address effectively the threat of further terrorist attacks. Her VIPS colleagues asked Rowley to review what has happened in the five years since her testimony, and we have contributed to this memorandum. In what follows, Rowley outlines how the primacy given to PR and other political factors has encumbered still further the FBI's ability to deal in reasonable and effective ways with the challenge of terrorism.
Given the effort that many of us have put into suggestions for reform, how satisfying it would be, were we able to report that appropriate correctives have been introduced to make us safer. But the bottom line is that the PR bromide to the effect that we are "safer" is incorrect. We are not safer. What follows will help explain why.
Wrong-headed actions and ideas had already taken root before that Senate hearing on June 6, 2002. Post 9/11 dragnet-detentions of innocents, official tolerance of torture (including abuse of U.S. citizens like John Walker Lindh), and panic-boosting color codes, had already been spawned from the mother of all slogans -- "The Global War on Terror" -- rhetorically useful, substantively inane. GWOT was about to spawn much worse.
Within a few hours of the Senate hearing five years ago, President George W. Bush reversed himself and made a surprise public announcement saying he would, after all, create a new Department of Homeland Security. The announcement seemed timed to relegate to the "in-other-news" category the disturbing things reported to the Senate earlier that day about the mistakes made during the weeks prior to 9/11. More important, the president's decision itself was one of the most egregious examples of the doing-something-for-the-sake-of-appearing-to-be-doing-something-against-terrorism syndrome.
As anyone who has worked in the federal bureaucracy could immediately recognize, the creation of DHS was clearly a gross misstep on a purely pragmatic level. It created chaos by throwing together 22 agencies with 180,000 workers -- many of them in jobs vital to our nation's security, both at home and abroad. It also enabled functionaries like the two Michaels -- Brown and Chertoff -- to immobilize key agencies like the previously well-run Federal Emergency Management Agency (FEMA), leading to its feckless response to Hurricane Katrina.
Radical, Reckless Departures From the Law
There were so many other missteps, so much playing fast and loose with the law, that it is hard to know where to begin in critiquing the results. One transcendent error was the eagerness of senior political appointees to exploit the "9/11-Changed-Everything" chestnut to prime people into believing that effective detection and disruption of terrorism required radical departures from rules governing our criminal justice and intelligence collection systems. Departures from established law and policies were introduced quickly. Many of the worst of these came to light only later -- extraordinary rendition, "black-site" imprisonment, torture, and eavesdropping without a warrant. (We now know that senior Justice Department officials strongly objected to the eavesdropping program.)
The first protests came from those most concerned with human rights and constitutional law. But, by and large, the fear-laden populace "didn't get it." The prevailing attitude seemed to be, "Who cares? I want to be safe." Everyone wants security. But all too few recognize that security and liberty are basically flip sides of the same coin. Just as there can be no meaningful liberty in a situation devoid of security, there can be no real security in a situation devoid of liberty. It took a bit longer for pragmatists to observe and explain how the draconian steps departing from established law and policy -- not to mention the knee-jerk collection and storing of virtually all available information on everyone -- are not, for the most part, helping to improve the country's security.
The parallel with the introduction of officially sanctioned torture is instructive. TV programs aside, many if not most Americans instinctively know there is something basically wrong with torture--that it is immoral as well as illegal and a violation of human rights. Pragmatists (experienced intelligence and law enforcement professionals, in particular) oppose torture because it does not work and often is counterproductive. Nevertheless, the president grabbed the headlines when he argued on Sept. 6, 2006 that "an alternative set of procedures" (already outlawed by the U.S. Army) for interrogation is required to extract information from terrorists. He then went on to intimidate a supine Congress into approving such procedures.
Virtually omitted from media coverage were the same-day remarks of the pragmatist chief of Army intelligence, Lt. Gen. John Kimmons, who conceded past "transgressions and mistakes" and made the Army's view quite clear: "No good intelligence is going to come from abusive practices. I think history tells us that. I think the empirical evidence of the last five years, hard years, tells us that."
Who should enjoy more credibility in this area, Bush or Kimmons?
The War on [fill in the blank]
"War! Huh... What is it good for? Absolutely nothing!" This 1969 song lyric turns out to be even more applicable to Bush's "global war on terror" than to the Vietnam War. As for "The War on Drugs," that one was readily recognized as little more than a catchy metaphor helpful in arguing for budget increases. But the use of our armed forces for war in Iraq was guaranteed to be self-defeating and to increase the terrorist threat.
-- Military weapons are inherently rough, crude tools. Our rhetoric makes bombs and missiles out to be capable of "surgical strikes," but such weapons also injure and kill innocent men, women, and children, taking us down to the same low level inhabited by terrorists who rationalize the killing or injuring of civilians for their cause. Civilian casualties also serve to radicalize people and swell the terrorist ranks to the point where it becomes impossible for us to kill more terrorists than U.S. policy and actions create. (In one of his leaked memos, former defense secretary Donald Rumsfeld asked about that; he should have paused long enough to listen to the answer.) This inherent "squaring of the error" problem in applying military force in this context has been a boon to terrorist recruitment, and has spurred activity to the point of having actually quadrupled significant terrorist incidents worldwide.
-- Declaring "war" on the tactic of terrorism elevates to statehood what actually may be scattered, disorganized individuals, sympathizers, and small groups. It empowers the terrorists as they add to their numbers and provides the status of statehood to what often should be regarded and treated as a rag-tag group of criminals.
-- There is, of course, political advantage for a "war president" to rally Americans around the flag, but the negatives of the axioms "truth is the first casualty of war" and "all's fair in love and war" far outweigh any positives. Ultimately, the recklessness and cover-up mid-wived by the "fog of war" (everything from the friendly fire that killed Pat Tillman to the torture at Abu Ghraib and other atrocities) just magnify the "squaring the error" effect. Judiciousness--and just plain smarts--tend to be sacrificed for quick action.
-- Perhaps the most insidious blowback from war is that it weakens freedom and the rule of law inside the country waging it. James Madison was typically prescient in warning of this: "No nation can preserve its freedom in the midst of continual warfare;" and "If Tyranny and Oppression come to this land, it will be in the guise of fighting a foreign enemy."
From Fire Hose to Niagara to Tsunami
Administration pressure on intelligence collection agencies, together with an extraordinary lack of professionalism and courage in the senior ranks of such agencies, have resulted in not only over-reaching the law, but over-collecting information. Those on the front lines striving to prevent future attacks face the kind of pressure a soccer goalie would feel trying to keep the other team from scoring when his own team's offense is off playing in an adjacent field--as when President George W. Bush sent our offense to invade Iraq, the wrong country with negligible ties to terrorism. Facing that kind of pressure, and lacking strong professional coaching, the defense can feel hopelessly outmatched, leading to still further mishap.
Former Defense Secretary Donald Rumsfeld spoke of the difficulty of getting a sip from the fire hose of intelligence being collected and flowing through the system. The stream of intelligence before 9/11 was also described by others as gushing from a fire hose, rendering it hard to find the dots, much less connect them--making it impossible, for example, to find, translate, and disseminate until 9/12 a key 9/11-related intercept acquired shortly before the attacks. Compounding the problem is the FBI's unenviable record in acquiring computer technology to facilitate its work--witness the junking of a computerized records system two years ago after wasting $170 million on defense contractors hired to create the system.
But the fire hose soon became Niagara Falls. FBI Director Robert Mueller set the tone early on as he kept telling Congress, "The greatest threat is from al-Qaeda cells in the US that we have not yet identified." (sic) Blindly following Mueller's White House-induced fixation with the "greatest" (though not yet "identified") threat, the FBI diverted about half its agents and other resources from areas like violent crime to work on terrorism.
Small wonder, then, that tons of additional data have been collected as a result, for example, of the "No-Tip-Will-Go-Uncovered" policy and the hundreds of thousands of National Security Letter requests. And who is surprised that most of that tonnage will never be evaluated? There is no denying that the threat from Al Qaeda has grown over the past five years, and today probably better fits the earlier inflated warnings of multiple terrorist cells already in place in the U.S. Hard questions must be asked, however, when it appears as though collectors are being paid by the ream, while the drowning analysts go down for the third time.
Extraneous, irrelevant data clutter the system, making it even harder for analysts to make meaningful future connections. A needle is hard enough to find in the proverbial haystack, without adding still more hay. And once the extra hay is piled onto the stack--by adding still more names to the 40,000-plus already on the "no-fly list," for example--there doesn't seem to be any way of reducing it. Ask Northfield (Minnesota) Police Chief Gary Smith and other law enforcement officers whose very common names have gotten onto this seemingly indelible list and who get stopped every time they try to fly.
The Ghost of Poindexter: "Total Information Awareness" Revisited
Just when it appears this insanity cannot get any worse, here come still more dots. Recent news reports indicate that the FBI--presumably having hired different contractors this time around--is compiling a massive computer database that will hold 6 billion records by 2012. This equals 20 separate "records" for each man, woman and child in the United States. "The universe of subjects will expand exponentially" is the proud spin being put on this recycled version of the Pentagon's discredited "Total Information Awareness" program.
Data-mining experts are not convinced this program is worth the effort. Since there are so few known terrorist patterns of behavior, one specialist has written that this kind of search would not only needlessly infringe on privacy and civil liberties, but also waste taxpayer dollars and misdirect still more time and energy by "flood[ing] the national security system with false positives--suspects who are truly innocent." If this were not enough, we learn that the terrorist watch list compiled by the FBI and the National Counterterrorism Center is out of control, having apparently swelled to include more than half a million names. So instead of trying to get a sip from a fire hose, or from Niagara Falls, the data-mining challenge is going to be more like sipping from a tsunami.
The good news is that this predicament is creating unusual consensus among people concerned with human rights and those dealing with pragmatic law enforcement. As one specialist on civil liberties observed recently, "There's a reason the FBI has a 'Ten Most Wanted' list, right? We need to focus the government's efforts on the greatest threats. When the watch list grows to this level, it's useless as an anti-terror tool."
Quantity cannot substitute for quality. Higher quality data collection depends not only on better guidance with respect to relevance, but also on judiciousness applied from the beginning and throughout the collection process. Unfortunately, case and statutory law has come to be regarded as some kind of nicety--or a barrier that needs to be overcome. Not so. That law sets standards of relevancy for collection that used to hold down data clutter. One might view the process of investigation, intelligence collection, increased intrusiveness, and erosion of liberties as a pyramid with the least intrusive actions and methods on the bottom of the pyramid entailing little or no interference with one's civil liberties. As a suspect proceeds up the pyramid from being the target of an investigation, to temporary detention, interview, search, arrest, and finally subject to criminal charges and long-term incarceration, each higher level of intrusiveness should correspond to a greater amount of evidence. What the "war on terrorism" has done, however, to a large extent, is simply invert this pyramid on its head, allowing long-term incarceration with little or no corresponding evidence.
In the past, general awareness that collected data could either become publicly known through criminal processes (criminal discovery), or through a plain Freedom of Information/Privacy Act request, built an extra degree of judiciousness into data collection. Classifying all information about international terrorism secret, perpetually secret, which is the current practice, removes this natural safeguard.
Former FBI agent Mike German, whose life depended on government secrecy when he was working under cover in domestic terrorism investigations, has an acute understanding of the need for operational secrecy in undercover work. At the same time, German has pointed to the pitfalls of secrecy where it is not essential, and has emphasized the importance of transparency within the government, even when conducting sensitive operations:
"While my activities were covert during the operational phase of
my undercover work, I knew from day one that I would have to be able to defend in court my actions. This gave me extra incentive to do everything by the book, so as to avoid the kind of mistakes or over-reaching that could prejudice efforts to bring domestic terrorists to justice. Operations designed with the understanding that they can remain forever secret do not require this kind of diligence and this can easily lead to abuse."
But What About Emergencies?
J. Edgar Hoover's vision during the early part of his 48-year control of the FBI not only led to creating the fingerprint identification system, but also brought in highly professional agents who could then be trained and trusted to conduct their own investigations and law enforcement actions without unnecessary interference from superiors. The FBI became the role model for law enforcement due to its insistence on high educational standards and continuing legal and professional training. Thus, before the "Miranda Rule" became law as the protocol for conducting interrogations, the FBI had already voluntarily adopted and implemented such a procedure as part of its professional approach to interrogation.
At the same time, the law of criminal procedure, including search and seizure, interrogation, and the right to an attorney need not be a barrier to effective investigation (or to the prevention of crime or terrorist acts), because "emergency exceptions" have already been carved into that law. So, for example, if an FBI agent finds him/herself outside a home with probable cause to believe that evidence of a crime exists inside and is being destroyed, that agent can legally conduct a search pursuant to the "exigent circumstances" exception in the law, without having to wait for a court warrant. Similar emergency exceptions exist under the statutes for monitoring of wire and/or electronic communications. This is one reason why it was difficult for us to understand why President Bush decided simply to ignore the Foreign Intelligence Surveillance Act (FISA) in ordering warrantless surveillance that included U.S. citizens. There is in that law an explicit exception allowing emergency monitoring up to 72 hours if, for example, a cell phone of an al-Qaeda operative were suddenly discovered.
For some reason the media have not done a good job of informing the American people about this exception. Those of us who are aware of it have difficulty avoiding the conclusion that the president's decision to violate FISA means the surveillance program is so intrusive and all-encompassing that it could not bear scrutiny. The program has already been ruled both unconstitutional and illegal by U.S. District Judge Anna Diggs Taylor but, despite that, continues in operation.
The FISA emergency exception is not hard to obtain; it simply requires that the Attorney General approve. That approval is what my colleagues in the Minneapolis field office desperately sought in mid-August 2001 so that they could search the personal effects and computer of Zacarias Moussaoui, who was already in the custody of our immigration service. The approval was denied for reasons that make little sense. Suffice it to point out a supreme irony here: because FBI headquarters personnel were reluctant, for whatever reason, to seek this emergency case-specific authority from the Attorney General and because the attacks of 9/11 were not thwarted, the net result was a presidential decision to ignore FISA altogether and institute a surveillance program in clear violation of the Fourth Amendment as well as FISA, as Judge Taylor has ruled.
A similar exception covering life-and-death situations allows law enforcement officers to dispense with the protection ordinarily afforded by Miranda warnings. The way the so-called "ticking-bomb scenario" has been disingenuously used to justify torture makes one reluctant to mention a scenario in which something like it might apply. However, unlike TV-glorified "ticking-bomb torture," there have in fact been cases in which a kidnap victim's life was in serious, time-sensitive jeopardy. One such kidnap victim was buried alive with limited oxygen supply.
In such cases, the normally required Miranda warning-protection can legally give way to the need to protect the life or lives hanging in the balance. What often gets blurred here, sometimes deliberately by advocates of torture, is the significant difference between the issue of truly involuntary confession--one produced by torture, for example, and thus with no guarantee of reliability--and the much larger area that is protected by the prophylactic Miranda Rule.
Judicious application of any emergency exception, of course, must obtain in order to prevent such exceptions from swallowing the rule. In the past, individual law enforcement officers have been trained and trusted to behave in such a way as to prevent that. Some of us VIPS were trained to use deadly force under narrow "emergency" circumstances when an imminent threat existed to our lives or to other innocent victims and there was no reasonable alternative to stopping the imminent threat. This delegation-down, this investing of trust in junior officers to exercise the enormous power of using lethal force under limited circumstances and after sufficient training, is necessary in order to protect their own and others' lives. So, too, it can be argued that investigators and intelligence gatherers should be trained to spot the type of life-and-death circumstances that might allow them to conduct an emergency search without a warrant or to dispense with Miranda protections.
The existence under current law of these "emergency exceptions" means there is no need to paint over civil liberties with a broad brush from on high, in order to effectively detect and disrupt terrorism. Despite the intense political and PR pressures, it is extremely unwise to allow the pendulum to swing in the reckless way it did post 9/11:
-- From ranking terrorism as the Justice Department's lowest priority in August 2001 to establishing it as the FBI's only real priority now. (Despite the word games, anything that consumes half of the FBI's resources is its only real priority).
-- From ignoring specific instances where emergency action under the law (FISA, for example) was warranted to now simply ignoring long-standing law.
-- From the failure to follow up promptly on specific, well predicated tips pre-9/11 to the "No-Tip-Will-Go-Uncovered" tsunami post 9/11.
-- From training interrogators on the finer points of the Miranda Rule to training on torture techniques.
The bottom-line result of this pronounced pendulum swing is not only that our own constitutional and legal protections are jeopardized as seldom before, but also that--far from bringing any real benefit--these practices impede efforts to find and stop actual terrorists, and they lengthen the waiting lines at al-Qaeda recruiting centers.
Veteran Intelligence Professionals for Sanity
Coleen Rowley, former FBI special agent
Tom Maertens, former NSC Director for Nonproliferation; former Deputy Coordinator for Counterterrorism, Dept. of State
Larry Johnson, former CIA analyst; former counterterrorism manager, Dept. of State
Ray McGovern, former CIA analyst