9/11 at 10: A New Domestic Intelligence Agency?

In the aftermath of 9/11, the question was raised whether it was time for the U.S. to build a “domestic intelligence agency.” Could the attacks have been prevented if the U.S. had had the domestic equivalent of the CIA, like the UK has in its MI5?  When the CIA was set up in 1947, President Truman worried about creating a Gestapo-like agency, and so its charter expressly prohibited engaging in law enforcement or any “internal security functions.”

My organization, the Center for National Security Studies (CNSS), as well as some within the national security community opposed the idea that the CIA should take on domestic security and CIA domestic expansion was for the most part shelved. While the New York City Police Department reportedly uses CIA personnel to teach techniques to troll mosques and Muslim communities in New York, public revelation of their involvement immediately generated an internal Inspector General investigation.

While the CIA remains nervous about domestic spying, the FBI has wholeheartedly embraced its quiet transformation into a domestic intelligence agency. As Michael Leiter, former counterterrorism official under both Presidents Bush and Obama, recently said, one of our unfinished tasks is public scrutiny and debate about the post-9/11 domestic security enterprise. Although there has been little public discussion about the scope or wisdom of this fundamental change in the FBI’s mission, it’s no secret. Just this month, FBI Director Robert Mueller described the remarkable extent of the Bureau’s transformation in testimony before Congress.

CNSS and its allies are focused on generating the public scrutiny and debate urged by Michael Leiter. We first need a much broader public understanding of this new enterprise, its mission, its powers, and how it works in practice. Traditionally the FBI focused mostly on criminal activity. While it is not true that the FBI only got involved after a crime was committed – it successfully prevented terrorist attacks on New York City tunnels in the early 1990’s – it was true that at least lip service was paid to the idea that the government had no business investigating Americans, unless it had some individualized suspicion of criminal wrong-doing. That limitation is now gone.

The FBI now describes itself as an intelligence agency, seeking “situational awareness” about communities across the U.S. In furtherance of that mission, it has been given much broader powers, much more money, and cutting edge technologies to collect massive amounts of data on millions of Americans, which may be compiled in electronic data-bases for automatic data-mining. Many of these powers can be exercised in secret and it is not clear to what extent Congress is exercising any real oversight. Civil libertarians cite abuses, ranging from infiltrating protesters at the Republican national conventions, to sending undercover informants into mosques and using “training materials” on Islam that are no more than thinly veiled presentations of ignorance and bigotry. The FBI counters that it is simply doing what Congress has asked, that it has withdrawn the bigoted training materials, and, most significantly, has prevented any major domestic attack since 9/11.

But history teaches us the perils of wholesale domestic surveillance by intelligence agencies, even in the most democratic countries. As Senator Sam Ervin, the conservative author of the 1974 Privacy Act explained:

Each time we give up a bit of information about ourselves to the Government, we give up some of our freedom: the more the Government or any institution knows about us, the more power it has over us. When the Government knows all of our secrets, we stand naked before official power. Stripped of our privacy, we lose our rights and privileges. The Bill of Rights then becomes just so many words.

We need independent analysis of the effectiveness of the new intelligence powers. Would less intrusive or worrying surveillance methods be equally successful or more so? What is the cost-benefit evaluation of these changes—in terms of security risk, economic cost, and societal cost from the potential erosion of trust in our government?

To answer these questions, we must begin with a comprehensive understanding of the scope of the changes: the ways in which the different powers granted by the Patriot Act, the FBI rules and other laws work together; the ways in which such powers have been exercised; the risks to civil liberties and to the social compact between the people and their government, and the availability of alternatives. We need a non-politicized understanding of the scope of the risk of future domestic attacks, how best to manage that risk, and a review of whether these intelligence powers are best designed to deal with those risks.

Historically, Congress has been best suited institutionally to undertake such a review, as can be seen in the extraordinary Church committee reports. When I raised civil liberties concerns with Congress in the years before 2001, it was possible to have a real dialogue aimed at finding solutions to protect civil liberties while satisfying national security needs. But one of the terrible effects those attacks had on our democracy has been the change in the way Congress approaches these issues. In October 2001, Attorney General Ashcroft threatened the Senate that it would have blood on its hands if it didn’t pass the Patriot Act immediately. Since then, Congress has too frequently ducked hard questions in favor of partisan political rhetoric. At the same time, the Executive Branch has claimed ever greater needs for secrecy, making public scrutiny more difficult. Individual Members have spoken up, of course. Senators Wyden and Udall of the Senate Intelligence Committee, for example recently warned about secret interpretations of controversial Patriot Act provisions allowing the government to obtain private information on Americans with no ties to terrorism.

But Congress as a body has a constitutional responsibility to examine whether government powers are in fact aligned with real threats and to ensure that the fundamental protections for religious worship and political dissent, and against unreasonable searches and seizures, continue to be meaningful in the 21st century. It is up to each and every one of us to demand that Congress meet that responsibility.