The war on terrorism has been anything but quiet lately here on its western front. The Washington Post concluded in a seminal investigation this week that the top-secret world the government has created in response to 9/11 has become so secretive and unwieldy that no one knows how large it is, what it does or how effective its programs are. To counter terrorism, the Post reports, America has created some 263 new or reorganized government groups, expanded the U.S. intelligence budget to $75 billion - more than 2-1/2 times its size on Sept. 11 - and awarded top-secret security clearances to some 854,000 civil servants, military personnel and private contractors.
Yet despite this monumental effort, terrorism plots keep on unfolding, undetected. Thirteen people were killed last November in Army psychiatrist Nidal Malik Hasan's attack on his fellow soldiers at Fort Hood. Then came a succession of near misses: Umar Farouk Abdulmutallab's nearly successful effort to blow up an American jetliner over Detroit last Christmas and the failed attempt by Faisal Shahzad, a seemingly successfully naturalized Pakistani-American, to detonate a car-bomb at rush hour in Times Square. In February, Najibullah Zazi, an Afghan immigrant who had grown up in New York, admitted in court that he had returned to New York from Denver last fall to kill himself and others in an attack on the city's subways. In June, two young New Jersey men were arrested at John F. Kennedy International Airport as they tried boarding planes for Cairo en route to Somalia, where the government says they hoped to join a militant Islamic group and kill Americans.
The persistence of militant Islamist terrorism plots, the vast majority "homegrown," has revived a debate about whether America should restructure its massive war on terrorism. Among the most popular, if controversial, ideas remains a proposal four years ago by Richard A. Posner, a judge on the U.S. Court of Appeals for the Seventh Circuit in Chicago. In an essay on The Wall Street Journal editorial page and in a subsequent book, Judge Posner argued that America needed to bolster its war on terror by creating a domestic intelligence agency, a red-white-and-blue version of Britain's famous domestic spy agency, MI5.
The suggestion created a firestorm that is still generating intellectual heat and dividing the counterterrorism and law enforcement communities. Given the growth of homegrown terror and the recent succession of near-misses, does America need an MI5 to cut through the clutter and do what this unwieldy intelligence bureaucracy, from the FBI to the Department of Homeland Security, cannot do?
Judge Posner maintains that it does. At present, his argument goes, the job of detecting domestic terrorists and other plots falls to the FBI and its 106 Joint Terrorism Task Forces. But the FBI, he warns, remains dominated by criminal investigators responsible for collecting information to bring criminal charges against individuals and organizations. As such, it has been unable to transform itself into a purely intelligence-gathering agency.
"Conceiving intelligence as merely an adjunct to arrest and prosecution, and measuring success by number of arrests," he wrote, the Bureau has repeatedly "jumped the gun" by arresting terrorist suspects as soon as it has gathered enough evidence to convict them of providing "material support" to terrorists or another lesser crime, rather than continuing its investigation until the full scope of a terrorist plot has been revealed. A culture of criminal investigation, he argues, is inherently "backward looking" and "preoccupied with arrests and prosecution"; a culture of intelligence, by contrast, is preventative in outlook and casts a "wide net for clues to impending attacks." America, moreover, is one of the few nations that does not have an agency devoted purely to the collection of domestic intelligence.
But the arguments opposing such an agency are substantively and politically powerful. Juliette Kayyem, now an assistant secretary at the Department of Homeland Security who was a Massachusetts state homeland security official when she responded to Judge Posner, argued that an American MI5 would jeopardize civil liberties, create yet another untethered new bureaucracy lacking clear oversight or constraints, and mimic organizations that have not been nearly as successful as their proponents boast. Britain's MI5, after all, did not detect or prevent London's devastating bus and subway attacks in 2005.
Moreover, given America's passion for litigation, its Fourth Amendment protection against unreasonable searches and seizures and its proud tradition of mounting court challenges in the defense of civil liberties, a new domestic intelligence agency would find itself the target of non-stop lawsuits. "Three-quarters of the new agency's staff would have to be lawyers rather than intelligence collectors," one law enforcement official told me.
Moreover, several law enforcement sources told me, creating such an agency would be hugely disruptive — consider the Department of Homeland Security, which lumped together 22 separate agencies with a total of 184,000 employees. It is also not clear that such an agency would be an improvement over the FBI. Sending federal employees into communities across the country, whether they are hunting criminals or terrorists, still won't ensure that they know the communities in which they are stationed well enough to be effective.
A far more promising model is at work right here in the city that is, unfortunately, the bullseye of the terrorists: the New York Police Department's counterterrorism program. Although the NYPD primarily collects intelligence for arrests and prosecutions, it has a 1,000-person staff under David Cohen, a former CIA analyst who served as the agency's director of operations, whose mission is to collect intelligence aimed at preventing terrorism in New York. Police Chief Raymond W. Kelly, unwilling to rely solely on the feds to protect the nation's most tempting target, said he spends $330 million of his $4.6 billion annual budget on counterterrorism. The payoff has been impressive: One of its undercover agents, for instance, recently produced the information that led to the arrest of the two New Jersey residents who police say were wannabe jihadis en route to Somalia.
"Local police are in the best position to collect domestic intelligence," concludes a new report on domestic intelligence by the 319 Group, a small group of prominent counterterrorism experts, police chiefs and researchers. "Unlike Federal officials, they don't rotate to a new city every few years." In other words, because they understand what is normal, they rapidly sense what is not.
But most of the nation's police departments lack the resources and training to undertake a counterterrorism mission - or do it with anywhere near the skill that the NYPD brings to the task. Particularly in a recession, most cannot afford to spend the millions of dollars that New York spends and assign police, who are in short supply, to thwart terrorism.
If they did, we'd all be a great deal safer. Rather than continue to proliferate new federal agencies, Washington should help the nation's 800,000 local cops collect that intelligence. Using the NYPD program as a model, the DHS should make a major, long-term investment to enable local and state police throughout the nation to do what they are best positioned to do.
Empowering local law enforcement would also enable city and state police to provide real intelligence to the 72 "fusion centers" that the DHS operates ostensibly to share terrorism-related information. Currently, according to officials, too much relatively useless federally-generated information is passed down through the centers, and too few locally-generated tips are being passed up the chain. Moreover, few fusion centers collect intelligence on their own; nor were the centers designed to do so.
Equally important is the need to share locally gathered intelligence laterally - among local police agencies. The NYPD's "Sentry" program helps train local cops in the tri-state area. Relationships have been created that generate trust, and hence, vital tips are shared rather than hoarded. This program, too, should be replicated throughout the nation, starting with cities that terrorists have already targeted.
Collecting intelligence domestically always has been sensitive in America. That caution is understandable given the episodic, well-documented, deplorable abuses. Nor has the NYPD been immune to law suits and complaints. The New York Civil Liberties Union challenged in court the department's surveillance of groups prior to the 2004 Republican National Convention in New York, claiming that the department's surveillance program and subsequent arrests of protesters at the convention violated their civil liberties.
But efforts to empower local police are likely to be less controversial and more politically palatable than the creation of yet another vast new federal structure that is accountable to no one. More importantly, they are the best weapon in our arsenal to stop the terrorists from striking again.