Spook Central

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.