I know for sure that this blog is going to raise some hackles, especially among my US friends and colleagues. Why? Because I am going to argue that the current US counter terrorism architecture is inadequate to deal with the threat and needs a serious overhaul. The solution I am proposing, however, will go against the grain of what many in the US see as acceptable and entails activities that many will see as unconstitutional. Be that as it may, it is nevertheless certain that something must be done.
Before I justify seismic changes to how the US does counter terrorism I do want to recognise the fantastic work that is already being done at many levels. I have had the good fortune of working with, and developing friendships out of, the NCTC, FBI and NSA over many years and I admire the dedication and professionalism of those men and women. Their often underappreciated labours have saved lives and prevented tragedies. But, it could be better.
Allow me to explain. The way I see the US intelligence structure insofar as counter terrorism goes is as follows. The CIA acts outside the US to identify and, at times, eliminate, threats. NSA acts to collect the communications of terrorists. The FBI does domestic investigations and the NCTC is supposed to put together the bigger picture. All in all an impressive bench.
So, what is missing? Simply stated, a domestic intelligence service. In other words an American CSIS (or MI5 or ASIO or…). The FBI is a law enforcement agency, not an intelligence one. Cops act differently than spies and see information differently. Law enforcement collects evidence and needs reasonable grounds to believe something is worth looking at: intelligence agents collect intelligence and need reasonable grounds to suspect a threat is present. The latter is by definition fuzzier than the former. The distinction between the two can be summed up in this article from the Washington Post on how the FBI and CIA see the allegations of Russian interference in the recent presidential elections:
“The FBI briefers think in terms of criminal standards — can we prove this in court…The CIA briefers weigh the preponderance of intelligence and then make judgment calls to help policymakers make informed decisions. High confidence for them means ‘we’re pretty damn sure.’ It doesn’t mean they can prove it in court.”
Every counter terrorism investigation that I am aware of started as an intelligence one, not a law enforcement one. Intelligence agencies, given their lower bar of investigative authority, can gather information before law enforcement can, as a rule. Once enough intelligence is picked up, there are mechanisms to share that with the police to begin a criminal case. At least that is how it works in Canada.
Some countries combine police and intelligence: that is the general model in Scandinavia for example. Others split the two and that is what came out of the McDonald Commission in Canada in the early 1980s and led to the creation of CSIS out of the former RCMP Security Service. The US is an odd hybrid: a law enforcement agency on which intelligence functions – at least for counter terrorism – were foisted after 9/11. Don’t get me wrong: the FBI does s0me very good work.
But it could be better if it partnered with a true intelligence agency that didn’t care about “getting the collar”. Investigations that may never lead to an arrest could be pursued where there were reasonable grounds to do so for national security. It is also probable that if an independent intel service were in play, several plots – Orlando, Fort Hood, Boston Marathon – would have been foiled thanks to continued intelligence monitoring. No, there are no guarantees in counter terrorism and any one of these attacks may have succeeded anyway, but the experiences of other nations tells a different story.
I can already hear the howls of protest. I am advocating the creation of yet another spy service that would trample all over the rights of Americans under the First Amendment. No, I am not. I am calling for the creation of a body that is tasked with investigating legitimate threats at the earliest possible stage when acts are ideas and not yet plots. If you think that is an unnecessary infringement of constitutional rights you are entitled to that opinion but you are also making a mistake. Yes, adequate oversight is needed, but we can do this and still have a functioning, effective domestic spy service.
The insertion of a solely intelligence agency might also decrease the so-called “sting” operations for which the FBI has been roundly criticised. If your goal is arrest, perhaps you take things in a direction they would not have gone minus your actions. If your goal is intelligence gathering you don’t care about arrests and non-plots are dropped once it is determined that there is no imminent threat.
I really do believe that the US needs a CSIS. I have been told by very senior US officials that this will never happen. That is too bad. The US is less safe as a result.
