Stewart Baker, a Washington attorney who used to be GC for the National Security Agency, has an excellent essay in Slate wherein he argues that we have invested too much in separating law enforcement from intelligence in the name of civil liberties. This "wall of separation" grew up after various agencies abused various groups' privacy during the 1960s and 1970s, and was thought to safeguard citizens from the more invasive forms of surveillance used in the national security world. Unfortuately, the result has been that good intel could not be passed onto law enforcement agencies. And that, in turn, has handcuffed America's cops in dealing with terrorism, with deadly results.
. . . the source of this tragedy was not wicked or uncaring officials. The wall was built by professionals who thought they were acting in the country's and their agency's best interest. They were focused on the hypothetical risk to privacy if foreign intelligence and domestic law enforcement were allowed to mix, and they worried that courts and Congress would punish them for putting aside these theoretical concerns to combat a threat that was both foreign and domestic. They feared that years of successful collaboration would end in disaster if the results of a single collaboration could be painted as a privacy scandal, so they created an ever-higher wall to govern operations at the border between domestic law enforcement and foreign intelligence. As drafted, the rules technically allowed antiterrorism investigators to do their jobs—if the investigators were sufficiently determined and creative. For a while they were, but the FISA court scandal sapped their determination and finally choked off any practical hope of getting the job done.Analysis: I wish Mr. Stewart was overstating the case here, but I don't think he is. First, a cursory glance at his c.v. (which includes a J.D. from UCLA Law School) will tell you that he knows his stuff. Second, the Senate Select Committee on Intel has come to the same conclusion -- that this wall of separation handicapped America's government in detecting and interdicting the 9/11 hijackers. Third, not enough has been done to increase information sharing between public agencies, both horizontally (think CIA-FBI) and vertically (think FBI-NYPD). We're still nowhere near the day where the local police officer can reach into an intel database to input his observations from the street, or where he receives actionable intel from above. Or even where first responder agencies in the same county can talk on the same radios! This wall of separation continues to impede our anti-terrorism efforts, along with the bureaucratic walls which separate federal, state and local agencies.
The second lesson is that we cannot write rules that will both protect us from every theoretical risk to privacy and still allow the government to protect us from terrorists. We cannot fine-tune the system to perfection, because systems that ought to work can fail. That is why I am profoundly skeptical of efforts to write new privacy rules and why I would rely instead on auditing for actual abuses. We should not again put American lives at risk for the sake of some speculative risk to our civil liberties.
And the final lesson? Perhaps it isn't fair to blame all the people who helped to create the wall for the failures that occurred in August of 2001. No one knew then what the cost of building such a separation would be. But we should know now. We should know that we can't prevent every imaginable privacy abuse without hampering the fight against terror; that an appetite for privacy scandals hampers the fight against terror; and that the consequence of these actions will be more attacks and more dead, perhaps in numbers we can hardly fathom.
The country and its leaders have had more than two years to consider the failures of August 2001 and what should be done. In that time, libertarian Republicans have joined with civil- liberties Democrats to teach the law enforcement and intelligence communities the lesson that FBI headquarters taught its hamstrung New York agent: You won't lose your job for failing to protect Americans, but you will if you run afoul of the privacy lobby. So the effort to build information technology tools to find terrorists has stalled. Worse, the wall is back; doubts about legal authority are denying CIA analysts access to law enforcement information in our new Terrorist Threat Integration Center. Bit by bit we are recreating the political and legal climate of August 2001.
And sooner or later, I fear, that August will lead to another September.
Despite the billions we've spent on homeland security since 9/11/01, we may not have achieved much of a real increase in security because of our failure to fix this area. We've won some tactical battles overseas in the war on terror, and we've tightened some important areas of our domestic security net (like port security). But intelligence is what drives operations, and we have not yet created the intelligence or information architecture yet to drive domestic anti-terrorism operations. Until we do, we will be vulnerable to an enemy who can move faster than the flow of information between the FBI and the CIA, or between the CIA and the Los Angeles Police Department.