Pros, Cons of Creating an 'American MI5'

W A S H I N G T O N, Dec. 14, 2002 -- With the recommendation of Congress' Joint Intelligence Committee this week that serious consideration be given to establishing a domestic intelligence agency comparable to Britain's MI5, the issue seems to be approaching critical mass.

Much of the push for creating such an agency, or, more accurately, breaking it off from the FBI, originates in the criticism of the bureau's various failings pre-9/11 adequately to analyze and assess clues that supposedly could have led it to uncover the plot and prevent the attacks.

The question also naturally arises with the attorney general and FBI director constantly emphasizing that they are restructuring and re-engineering the bureau to make countering terrorism its first priority, and even to change it from a strictly law enforcement agency that responds to crimes, to a more proactive one that can prevent the crimes.

In fact, last spring I first raised this question with the director in a sit-down with reporters. At that time he acknowledged the legitimacy of the question, but countered that one of the most valuable attributes of the FBI is its interaction with other law enforcement agencies, both foreign and domestic; the information gleaned from those contacts, he argued, is invaluable on the intelligence side.

A few weeks ago it became obvious there are some in the administration who are rather enamored of the idea of creating an MI5. At that time, the best defense of the bureau's remaining in charge of counterterrorism came from the attorney general, who argued that the lesson of 9/11 is that more and better integration, communication and coordination is needed, and "the establishment of a separate, distinct agency would be to move in the other direction, instead of to integrate and cooperate and communicate."

I thought it might be useful to see what the experts in counterterrorism have to say on the subject.

The Pros

One former senior Justice official was in favor of at least giving the idea "serious analysis." His main rationale is that "the FBI is not really very well-suited" for the job; that there is a basic difference between trying to arrest and prosecute somebody who has committed a crime, and trying to prevent the crime in the first place.

He also argues that programs such as the controversial Pentagon Total Information Awareness being developed by John Poindexter are "going to happen; we'll be doing more data mining, more information analysis" and he would "feel more comfortable if all that information were not going to be ending up with the FBI and law enforcement."

He noted that several large cities' police departments are currently in court, trying to get out from under consent decrees that had prevented their spying on domestic groups. Aren't you a lot more uneasy having police departments doing that kind of thing? he demanded.

At least one FBI agent, rather surprisingly, agreed with this argument. He said he's spent most of his career on the criminal side, although he has some experience on the intelligence side as well. He says the FBI "can't do it. We have never been analytical, we don't have the ability; it'll be four to five years before we have a clue."

He maintains that the "old mentality" still manifests itself despite all the e-mails from the director; no matter how many times Bob Mueller insists that terrorism is the first priority, there will be special agents in charge who are still devoting most of their resources to the old priorities, such as bank robberies, kidnappings, and other crimes that the locals could easily handle.

He said it's not like Osama bin Laden is running around his neighborhood, but to be genuinely proactive is nearly impossible "when you still have to do all the other stuff." I countered that they had supposedly pulled back from bank robberies. He said, yeah, sure, but "we still respond." Maybe not with eight agents — but the bureau still picks up the bank film, still interviews the witnesses, etc. The idea was supposed to be that the FBI would only respond if there were some overarching reason, some activity that only they could perform.

"It's time for us to grow up and get rid of the things we don't need." He believes the bureau can only take on the counterterrorism mandate realistically "if we can toss overboard a lot of the responsibilities we have now that are redundant" to other agencies.

In Between

A former FBI senior official muses that if the country were starting with a blank slate, the MI5 model would be "very attractive."

Like the former Justice official, he points out the fundamental difference between law enforcement and domestic intelligence-gathering, and notes that the attributes that make one shine in one area don't necessarily cohabit in the same person with those from the other. To move people from one side to the other can take considerable "retooling."

He also maintains that if one were creating a domestic intelligence agency from scratch, it's not clear that such an agency should report through the Justice Department or that the attorney general should have a significant role. Although some would say the attorney general can guard civil liberties, the fact is that the attorney general "tends to reinforce the law enforcement perspective at the expense of the intelligence side."

But the problem is, we're not dealing with a blank slate; we're in the midst of one war and on the verge of another; "it's a messy time to start moving the deck chairs around." It's confusing enough that we're creating a Homeland Security Department on the fly, he said. But we do want some entity thinking in a thoughtful, strategic way about the threats that are facing the United States, and how do we try to prevent them.

This former official protested, "I'm a huge fan of Bob Mueller, and if there's anybody who can do it [i.e., retool the agency], he can do it." But the bureau's strength traditionally has not been in analysis and synthesis; it's not what the bureau was designed and its agents trained to do.

He also noted that when he was there agents were entirely aware of the bureau's checkered history with such invasive programs as COINTELPRO; they were "nervous and hesitant" even to engage in intelligence-gathering a few years ago into the question whether there was a national conspiracy to target abortion clinics. That institutional baggage in some ways argues that the FBI would be more restrained than a newly founded agency.

The official pointed out that a former CIA official is now overseeing intelligence-gathering for the New York Police Department; he has "no doubt" that the NYPD is now "devoting far more resources to the task of gathering intelligence in and around New York than the bureau is."

And perhaps rightly so: The NYPD would likely say that New York City is a target and yet they don't have a seat at the table when discussions turn to national priorities.

The Cons

A former very senior FBI official who has closely observed the way the separate agency works in Canada and the United Kingdom thinks it "doesn't work very well," but acknowledges that "the bureau will do what the public wants it to do and what the law allows it to do."

He pointed out that the Canadian Security and Intelligence Service was created about a decade ago when there was a scandal about illegal wiretaps involving the national police force, the Royal Canadian Mounted Police. But he maintains there's been nothing but confusion since; "there's always some issue whether information should go to CSIS or the RCMP."

In Britain there are also problems in coordinating between Scotland Yard and MI5 — plus, it's a very different system over there, with their secrecy laws. France has the DST, and they are "probably the best, but they also use torture."

Basically he's opposed to creating a new agency; "we're in the Super Bowl and it's not a good idea to be changing teams." He believes "we're probably in imminent danger of an attack right now." There certainly do have to be changes at the FBI; there's a ton of information that has not been well analyzed; but this is not the time to break that off.

This is the time to fund the automation that the bureau has so desperately needed; this is the time to say if a major criminal case breaks, they're not going to move the national security agents to work it, he said. There have to be adequate national security resources and they must be segregated, not touched by other demands. "Everybody's kicking the crap out of the bureau but we had to have congressional approval to spend $250,000!"

There also ought to be career professionals dedicated to the national security job. Many FBI officials disagree; they think it's good for an agent to leave counterterrorism and go work bank robberies; but this official is adamant that the job requires specialization. An agent on the national security side should stay 20 to 25 years and out of that cadre should come the leadership of the division. The FBI needs to build a corps of professionals who understand what the rules are, and that can be built within the bureau a lot quicker than starting all over with another agency.

There must also be a very clear mandate from both the president and the Congress as to what the bureau must accomplish; there must be clear guidelines so there won't be constant litigation.

And this former agent believes it's a good idea to have Justice overseeing the process; "I like the idea of having the attorney general, a constitutionally appointed officer in charge."

From the Street

Nancy Savage, an FBI agent who is president of the Agents' Association, is very strongly opposed to the creation of an American-style MI5.

In fact, she says the Brits tell the bureau "we wish we were like the FBI." She says her reasons are far from parochial. She strongly counters the adage that the Bureau is too "case-oriented" to handle terrorism. "How the hell do you get rid of terrorists [in the U.S.] other than through cases? ... We can't take them out with unmanned drones!"

And she maintains that a case is a case is a case; that the best drug agents and white-collar agents are just good investigators; with any case you do the analysis and look at the vulnerabilities of the targets. "Good agents are like hound dogs; put some pictures up on the wall, give them the files, and let 'em loose!"

In an article prepared for the upcoming edition of the Agents' Association newsletter, Savage points out that with the recent ruling of the FISA Court of Review, the strictures that previously limited the FBI's ability have been removed.

And Savage maintains the nation should hail the FBI's case-oriented culture: "Cases that stand the legal scrutiny of the courts and allow for due process of the defendants are absolutely crucial to this nation's fight against terrorism. ... The grounding of FBI Agents in due process and legal rights will stand this nation well in the fight against terrorism, just as it has stood us well during the last century during numerous other serious threats."

Praising the revolutionary new FISA ruling, Savage observes:

"The ruling is extremely timely as it not only allows the FBI to aggressively prosecute terrorists with all the information the government possesses, but it also should mortally wound the foolish idea of splitting the FBI into two agencies — one with criminal responsibilities and one with intelligence related functions. Now when the Justice and the FBI are finally free of the infirmities and timidity of misguided and mistaken FISA interpretations, it is not the time to begin the bureaucratic plunder of splitting the Bureau."

From the Left

Savage and the FBI get support from perhaps a strange bedfellow: Jim Dempsey of the Center for Democracy and Technology is strongly opposed to the creation of a U.S. MI5.

He says, "I never have understood the argument that an intelligence agency divorced from law enforcement is somehow more protective of civil liberties. ... You want the intelligence activity to support and culminate in a law enforcement activity with all the constitutional protections."

To those who argue, don't worry, the intelligence agents won't be able to arrest people, Dempsey's response is: Well, then, what are they going to do with the information they collect? Disrupt groups? Perform dirty tricks? Engage in political pressure? Use it during background checks? What's the point of collecting it if you're not going to use it?

Dempsey has studied MI5's record and maintains that it actually has all of the same problems that troubled the FBI in the past — dirty tricks, political targeting, plus (most ironically) the failure to share information. For example, MI5 had info about convicted would-be shoe bomber Richard Reid that it neglected to share. There are also cases where it had actual advance notice of IRA actions and failed to warn appropriate authorities.

So, from both the civil liberties' and the effectiveness perspectives, Dempsey doesn't see how splitting intelligence from law enforcement helps anybody. It's the "goofiest, bizarrest idea I've ever heard ... these are desperate times!"

Dempsey also noted, perhaps ominously, that Mueller is far less political than his predecessor Louis Freeh was, and while that should be a good thing — right now, it could be bad.

Freeh employed a "combination of stroke and threat that was very, very effective" in getting his way around town. Dempsey worries that if this issue becomes political — and some potential presidential candidates, including John Edwards, show signs of grabbing onto the issue for 2004 — the White House "will dump Mueller in a second — and dump the bureau."

The Official View

FBI spokesman Mike Kortan maintains there are "so much criminal and intelligence overlaps that the bureau, whether you like it or not, or whether it's as perfect as it can be, is still best structured to deal with" the war against terrorism. Precisely because the bureau has "evolved through so many difficult times" it has the knowledge and foundation for how to collect, store, distribute, and utilize intelligence. Kortan said, "we can do it legally and effectively, and we're getting better at the analysis part, that we didn't do in the past."

He disagrees that a professional corps needs to be built up; "the techniques and fundamentals for organized crime are not all that different from CT or CI"; it's still source development and analysis.

It is true, however, that the "bench strength" on the national security side is thin right now. Kortan admitted the bench strength now is in white-collar, but he's confident those agents can make the transition. And he did acknowledge that the bureau has become more specialized as an organization: "we're not the roving generalists we once were."

Beverley Lumpkin has covered the Justice Department for 16 years for ABCNEWS. Halls of Justice appears every Saturday.