Spook Central

by Maria on July 16, 2003

Does America need a new agency to combine law enforcement and intelligence functions, AKA spy on American citizens?

An invited think-piece in last week’s Economist (Friday 11 July) puts the case for creating yet another US intelligence agency. The six former intelligence and law enforcement heavyweights who wrote the piece say the new Terrorist Threat Information Center which will integrate and analyse information provided by law enforcement and intelligencies is fine as far as it goes, but it doesn’t go far enough. The FBI, they say, is too law enforcement focused, and doesn’t do enough domestic intelligence gathering. They want to create an elite and effectively autonomous agency within the FBI to do domestic intelligence gathering and counter-terrorism. The piece acknowledges that the public won’t like the idea of a secret police, but says that ‘rationally drafted legislation, the extension of Executive Orders, congressional oversight and a well-informed American media’ should meet public concerns. Well, aside from the fact that all of the above have failed to meet public concerns regarding the Total Information Awareness project (Oops, ‘Terrorist Information Awareness’), I think there are some real problems with this proposal.

First off, the NSA’s FAQ lists 13 different federal organisations that already form the US ‘intelligence community’. And those are the ones we know about. Then there are little coteries like
Rumsfeld’s high level clique in the DoD whose ideologically-driven analysis seems to have gotten the government into all sorts of difficulty. Then add in the uncertainty of the massive institutional re-organisation and accompanying turf wars which comprise the Department of Homeland Security as we know it today. From a purely organisational point of view, it looks like the US needs more and better integration of its existing intelligence gathering and analysis organisations, and their government clients, and not the creation of an entirely new agency.

But the meat of this issue is an assumption the Economist article’s authors only imply; a new and unpleasant need for the US government to spy on its citizens. Or, to put it another way, to spy on them in a way that is more like how it spies on foreigners. Constitutional lawyers can tell us more about the likely Fourth Amendment limits to domestic intelligence gathering, but what worries me most is the blurring of boundaries between law enforcement and intelligence work, and its implications for justice and human rights. (This is happening in Europe as well, it’s just that the institutions and processes involved mean it’s behind closed doors.)

After 9/11, the US government realised that to deal with terrorists who operate at least partly within the US, much better coordination and information sharing was needed between law enforcement whose focus is domestic, and intelligence agencies that mostly focus outside the US. So, since 9/11 we’ve seen more information and analysis sharing between the two types of organisations, typified in the creation of the TTIC. The logic has gone the other way too, with law enforcement agencies taking on powers and using national security exemptions that were previously the preserve of the intelligence community. This blurring of the boundaries between intelligence and law enforcement agencies has come about because of a clear cut need, but it is creating some unexpected and rather unpleasant consequences.

In general, law enforcement and intelligence agencies operate in very different realms; domestic versus foreign, under enacting legislation and greater congressional/parliamentary oversight versus executive orders and much less oversight, and with procedures and institutional information (e.g. staffing levels, types and names of operations) being in the public domain versus being kept secret. Law enforcement agencies must aim ultimately to bring perpetrators to justice, and so have to follow the rules all the way to the end of a fair trial. Intelligence agences don’t work within these strictures, and don’t operate with the assumption that information they use for investigation will ultimately be made public in judicial proceedings.

Mixing these two very different types of organisation, and their operational imperatives, is causing lots of incongruity, and we’re seeing unsatisfactory hybrid institutions emerge, such as special military tribunals in offshore legal limbos. Yesterday’s Washington Post reported that the Department of Justice has refused to produce a key witness in the trial of Zacarias Moussaoui, citing reasons of intelligence and national security. Despite the view of a dissenting judge who argued that the other judges had not taken the delicacy of intelligence matters into due consideration, the trial may well collapse. At the same time, Tony Blair is in deep trouble regarding the Britons to be tried by military tribunal in Guantanamo Bay because he is a) unlikely to get a concession from his closest ally to try them in the UK and b) unlikely to successfully bring that case to trial in the UK in any case as it would not meet basic (civilian) legal requirements. Of course human rights groups in the UK argue that if these people couldn’t be tried in the UK, then they’ve no business being held at all. But the military and intelligence imperatives are quite different to those of a justice system: get information out of the internees, and use it to improve intelligence, then hang onto the internees indefinitely so they can’t spoil things by telling their friends what they’ve said, but in a way that stops anyone else from getting at the intelligence. The moral of the story is, when hard-won intelligence is at stake, there is no real chance of a fair trial. Maybe this seems ok when foreigners are in question, but would the American public accept it if US citizens were in the dock?

So the idea that the US should have a new secret police to seems to me to be a very bad one. The very nature of intelligence gathering means that in a domestic setting, it will go far beyond what is constitutionally and politically acceptable, and combining intelligence gathering with policing seems to preclude fair trials. Integrating information sharing and analysis is a fine idea. But a quasi-intelligence, quasi-law enforcement agency would further expose the glaring conflict between human rights and national security.



SageOne 07.16.03 at 9:10 pm

I would have to agree, though I find it hard to believe that some sort of big brother doesn’t already exist and that we are monitored more than we know.


PG 07.16.03 at 9:32 pm

Adding to the mix, what is the military element in this?

It seems strange that we would have domestic law enforcement hunting down a guy and then handing him over to a military tribunal.

I think the lines should be kept more clear:
domestic law enforcement goes after criminals who will be tried in the criminal courts,
and intelligence agencies go after military-esque threats (the soldiers of the terror war, I suppose) who will be tried in military tribunals.

I’m fine with having regular law enforcement tip off the intelligence agencies to dodgy sorts, but I think their involvement should stop there. Ditto for the intelligence agencies’ interference in domestic crime matters.

Has anyone posted here about the parallels between Moussaoui and a Mafia member on trial? I would think some of the same concerns about organized general crime would apply to organized terrorism.

Finally, if we are going to hold people indefinitely because we cannot risk their telling their compatriots what they’ve leaked to the U.S., why don’t we just call them POWs and stop bothering with trials altogether?


aelph 07.17.03 at 12:35 am

I can’t resist the cheap shot…

and a well-informed American media

The Economist’s editorial staff apparently has little experience with American media.

That being said, I must say I like pg’s rather clear-headed proposal.


tew 07.17.03 at 1:06 am

pg’s proposal is reasonable and clear-headed, but I disagree about the interaction between regular law enforcement and intelligence. While it makes sense for the police to tip off the spooks when something irregular is going on, I would rather not have the spooks tipping off the police when they come across something out of their jurisdiction but potentially criminal. If we’re going to give intelligence services broad surveillance powers, let’s not tempt anybody to use them for anything but protecting us from terrorists and foreign enemies. Disallowing spook-to-cop tips would go a long way toward making me more comfortable with spies among us.


Daragh McDowell 07.17.03 at 3:58 am

Due to 9/11 related security beef-ups, after 2 months of being checked out before I got my visa, I’ve now been waiting almost 2 more months (with about 6 weeks left in my stay) for INS to doublecheck my papers before SSA will give me a Social Security Number (without which I can’t even get a key to my office, let alone get paid.) I do however have a bank account, into which my folks have kindly transferred some cash while I wait to be paid so I can survive off of something other than rats. Lets think about this:

I have been denied entry into a government database which would allow my employment, the amount of money I’m earning, my residence etc. etc. to be catalogued and tracked, until INS checks that the birthdate on my DS-2019 matches that on my passport and Visa. Meanwhile I’m still here, but I’m outside the system, and thus much harder to ‘find.’ I do have a bank account though, and thus if I had a patron willing to send it, access to as much cash as I need. My patron happens to be my parents, but what if I was someone else, and my patron happened to be in the House of Saud.

I really don’t think the Americans have a clue how to conduct succesful counterterrorism and are just blindly throwing stuff at the wall to see what sticks. And if that should just happen to vastly inflate the powers of the thief-in-chief well hey, what’s the harm?


JB 07.17.03 at 6:27 pm

The Pentagon’s 135 page piece on its $74 million+ per-year investment in new surveillance technologies is relevant … and scary. Go here to read an abridged review. Or-well (big sigh)…

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