Judge Richard Posner, one of the nation’s top thinkers on matters of homeland security and intelligence, argues in today’s Washington Post in favor of the creation of an MI5-type organization in the U.S. government:
Intelligence succeeded in part because of the work of MI5, England’s domestic intelligence agency. We do not have a counterpart to MI5. This is a serious gap in our defenses. Primary responsibility for national security intelligence has been given to the FBI. The bureau is a criminal investigation agency. Its orientation is toward arrest and prosecution rather than toward the patient gathering of intelligence with a view to understanding and penetrating a terrorist network.
The bureau’s tendency, consistent with its culture of arrest and prosecution, is to continue an investigation into a terrorist plot just long enough to obtain enough evidence to arrest and prosecute a respectable number of plotters. The British tend to wait and watch longer so that they can learn more before moving against plotters.
The FBI’s approach means that small fry are easily caught but that any big shots who might have been associated with them quickly scatter. The arrests and prosecutions warn terrorists concerning the methods and information of the FBI. Bureaucratic risk aversion also plays a part; prompt arrests ensure that members of the group won’t escape the FBI’s grasp and commit terrorist attacks. But without some risk-taking, the prospect of defeating terrorism is slight.
MI5, in contrast to the FBI (and to Scotland Yard’s Special Branch, with which MI5 works), has no arrest powers and no responsibilities for criminal investigation, and it has none of the institutional hang-ups that go with such responsibilities. Had the British authorities proceeded in the FBI way — rather than continuing the investigation until virtually the last minute, which enabled them to roll up (with Pakistan’s help) more than 40 plotters — most of the conspirators might still be at large, and the exact nature and danger of the plot might not have been discovered. We need our own MI5, not to supplant but to supplement the FBI.
This is an idea that I’ve supported for a long time, given all of the difficulties that the FBI has faced with changing its culture and developing an effective intelligence capability. The counterargument against this idea has always been that it’s too hard, and that it would take too long. (The 9/11 Commission considered an MI5 recommendation, but backed away from it for this reason). But we’re now five years out from 9/11, and the FBI still hasn’t fully digested its new intelligence role. How much longer can we afford to leave this institutional gap unfilled?
For more interesting commentary from Judge Posner, check out his blog.