| When Dr.Gant asked
me to give the keynote address for this colloquium, she shared
several topics with me that included "Balancing Domestic
and International Challenges" as well as "Creating
Public Trust in Times of War ". It wasn’t merely that I
couldn’t make up my mind between these two topics, but rather
that there is an intimate connection between these two topics.
I hope we will have time to establish that relationship in our
discussion this afternoon.
In addressing the question of balancing domestic and international
challenges, we begin with the "view from 20,000 ft."
and move down to ground level. In the next half hour I ’d like
to take those perspectives with you.
It has been clear since the tragedies of 9/11 that we are
moving into uncharted territory, so it’s doubtful we would ask
ourselves "What can we learn from history?" But perhaps
we should. This afternoon we examine what we can learn from
history and how those lessons seriously affect the policy decisions
made today as well as the evolving roles we see in intelligence,
law enforcement and this new animal "Homeland Security
".
It’s hard to get the Professor out of many of us, so you will
have to indulge the didactic examples. Most of what affects
us today derives from the World War II and Cold War eras in
terms of what we might learn. The situation during WW-II was
far more clear-cut, and following WW-II the tools at the President’s
disposal to balance domestic and international challenges were
also more clear-cut as were the roles and challenges themselves.
We lived in a bipolar world with our main adversary being the
USSR. In terms of resolving conflict, we had two basic choices:
bilateral diplomacy or military action. The United Nations and
other international organizations were mainly arenas that the
two superpowers could use when they thought the organizations
served their interests. The catch
phrase then was "Send in the diplomats or send in the Marines."
Of course history does not hide the fact that the U.S. did exercise
the so-called "quiet option" or "third option"
at various times during the Cold War.
The roles of our intelligence and law enforcement organs were
also much more clearly defined in terms of domestic and international
responsibilities and authorities.
The CIA operated overseas collecting foreign intelligence
and was explicitly enjoined from collecting information on US
citizens. In contrast, the FBI operated on US soil gathering
evidence to be used, often against US citizens,in the prosecution
of crimes. Counter-Intelligence being the one mission both shared.
The "good news - bad news" is through enhanced cooperation
we’ve gotten much better at counter-intelligence. (cf.Ames case).
While not mentioned as
prominently, but critical to our national security and the points
at hand, is the National Security Agency (NSA) which, under
USSID 18, goes to great lengths to avoid even incidental or
accidental collection of intelligence on U.S.persons. The lines
and roles were clear. By the end of my remarks we will see that
this is far from the current situation.
J. Edgar Hoover tried - and failed - to win the FBI a bigger
role in national
security after World War II. Indeed, until 1947, the FBI even
had stations in much of Latin America. After the Truman administration
created the CIA, however, the FBI closed these stations and
confined its offshore operations mainly to counter- espionage.
This changed in the mid-1990s. As international crime began
to look like a growing threat, FBI director Louis Freeh seized
the opportunity to nearly double the number of law enforcement
attachés assigned to U.S. embassies. The FBI established
23 offices in Europe and farther east.
Law enforcement and intelligence are very different worlds,
a fact that
compounds the foreign-domestic divide. Intelligence is oriented
toward the future and toward policy. It seeks to inform the
making of policy. It seeks to understand new information in
light of its existing understanding of complex situations. It
lives in a blizzard of uncertainty where the "truth"
may never be known for certain. Thus, its standard is "good
enough for government work." [Yet, the motto inscribed
in marble in the entrance foyer of CIA Hqs.quotes from the gospel
of John: "Ye shall know the truth and the truth shall make
you free."]
By contrast, law enforcement is after the fact.Its business
is not policy but prosecution, and its method is court cases.
It strives to put bad guys in jail. Its standard is high, good
enough for a court of law. And law enforcement knows that if
it is to make a case, it must be prepared to reveal something
of how it knows what it knows - intelligence would never allow
compromising of sources or methods.
Bureaucratic turf is a third reason foreign policy appears
to be taking a legalistic turn. Law enforcement agencies have
often had to operate beyond U.S. borders because many crimes
are inherently international in nature. Smuggling, for example,
crosses national borders by definition. Espionage often occurs
within American borders but, also by definition, involves a
foreign nation as an accomplice. And today, criminals can launder
money and set up bogus operations worldwide over the Internet
with the click of a mouse.
Today, it seems as though intelligence analysts are morphing
into law
enforcement detectives and vice versa. This certainly didn ’t
happen overnight. The turning point may have been the 1970s,
when monitoring arms control treaties became an important intelligence
mission.The issue was whether the Soviet Union was "in
violation"of a legal agreement. Intelligence became a hot
political issue, mainly because it was central to the question
of whether or not arms control was working.
Intelligence,on the other hand, rarely tries to prove anything;
its main purpose is to inform officials and military commanders.
There is a critical point in time where officials have to "go
with what they've got," ambiguous or not. They cannot afford
"analysis paralysis " where they hesitate to make
a decision telling themselves "If I just had one more piece
of data..." In command school leaders are taught that often
a bad decision is better than no decision .
Usually intelligence does not offer crystal-clear answers,
and one should be cautious about hanging decisions to go to
war or do anything else on its ability to provide such answers.In
my own experience, intelligence is usually full of uncertainty.
In the intelligence business, foolproof, airtight evidence --
the kind that changes minds and convinces the public - has been
called as "rare as hens' teeth." That's why expecting
intelligence to provide "proof"in the legal sense
of the word is so dangerous.
It got worse about a decade ago,when a new buzzword began
percolating through intelligence circles. Intelligence officials
began saying that their goal was to provide "actionable
intelligence." Originally this was a military term for
intelligence precise enough and timely enough to tell you where
to put a bomb or intercept a target. In time, though, the term
mutated. Actionable intelligence these days refers to data so
clear and so thorough that policymakers can, literally, base
a decision to take action on it.
The clock runs differently for detectives and intelligence
analysts, too.
Intelligence analysts -- one hopes -- go to work before a crisis;
detectives usually go to work after a crime. Law enforcement
agencies take their time and doggedly pursue as many leads as
they can. Intelligence analysts usually operate against the
clock.
In a few moments we will examine how homeland security should
operate as a potential hybrid of intelligence and law enforcement
and what the sticky issues are. But there is more to all of
this than theory, political science and what some might call
"squishy soft sciences ". There is Technology with
its Challenges, Issues and impacts.
Our ability to successfully execute law enforcement, military
and intelligence missions has increasingly depended on Technology
- whether it be overhead reconnaissance such as the U-2 flights
used over Cuba in the early 60s or those today over Iraq or
the miniature camera used by Oleg Penkovsky to photograph Soviet
documents whose information was vital to our policymakers during
the height of the Cold War. We have seen the role and benefits
of technology come more than full circle in several aspects.
Those that have enhanced national security and those that beg
questions about civil liberties and raise constitutional issues
are often the same.
More than anything,in addressing the terrorist threat domestically,
technology is today highlighting that natural and painful tension
between security and democracy and raising painful questions.
During the Cold War, we came to rely enormously on our technology
for
intelligence collection; primarily for remote sensing. The "eye
in the sky" helped us keep track of the Soviet strategic
threat that was our greatest concern. During the 1970s, the
role of technology grew to include verification of arms control
treaties that stretched intelligence into a quasi-international
law enforcement domain and politicized intelligence. Through
the decades we developed more and more sophisticated technology
to eavesdrop on our adversaries or equip our operatives to collect
foreign intelligence. The use of technology for intelligence
(and law enforcement) is certainly not a one-way street. We
all recall the case of the Soviets supplying extra technical
"devices" to our New Embassy in Moscow - free of charge.
In the case of drug-runners and other transnational threats,
situations where the "bad guys’" technology was more
sophisticated than our own were not unheard of.
In our vigilance we should never underestimate the technology
our adversaries may have and use against us. This is further
aggravated by one of the great technologies of our time:the
Internet where openness prevails and policing what is or is
not released or to whom is effectively out of the question.
Yet,some claim that our adversaries are not the only ones
using technology against us. Certainly given what was developed
for foreign intelligence collection, the same technology could
be used domestically. Investigations in the 1970s, uncovered
abuses of the rights of Americans and responded by suggesting,
in effect,that the wall between intelligence and law enforcement
be raised. One result of those investigations was a special
court, the Federal Intelligence and Surveillance Court (FISC),
to review applications for national security, as opposed to
law enforcement, wiretaps and surveillance. (see ruling 3/24/03)
In that sense, the ragged cooperation between the FBI and
the CIA before Sept. 11 should not have been such a surprise.
They were created that way,to be close but not too close lest
the rights of Americans be abused.
We are now caught in a balancing act. The line between law
enforcement and civil liberties; domestic and foreign intelligence
which we got all cleaned up in the ’70s is glaring at us again
and oozing across all previously established - and well understood,
agreed-upon boundaries. Never in our nation ’s history have
we considered establishing an organization modeled on the British
MI-5 for domestic intelligence. Yet, that has been a topic under
discussion for the past 9 months, if not longer. When President
Truman formed the CIA, for instance, he worried openly about
a "Gestapo-like organization," and so the CIA was
barred from law enforcement and domestic activity. By way of
illustration, constraints on collecting information on US Persons
were taken so seriously that when now declassified "spy
satellites" flew over U.S. territory, they did no imaging;
"Shutter control" as it was known.
This policy too has evolved. Satellite imaging is now used
in support of FEMA for both predicting natural disasters such
as the path and intensity of hurricanes and large scale forest
fires as well as analyses of the aftermath of floods.
The most recent example of using technology meant to collect
(foreign)
intelligence in a domestic setting, but for national (homeland)
security purposes comes from the 2002 Winter Olympics in Salt
Lake City, UT. For this event, there was close - unprecedented
- coordination between our National Imagery and Mapping Agency
(NIMA); the folks who are concerned with (usually) using overhead
imagery for targeting purposes, and local and national law enforcement
units. So great was the concern over terrorism at the games
that satellite imagery was "down linked" directly
to remote analysis sites outside Salt Lake City that had direct
communication with law enforcement and security forces had there
been any hint of something amiss.
In the aftermath of 9/11, the rules for wiretapping and domestic
surveillance have now been broadened with passage of the USA
PATRIOT Act and the expansion of Foreign Intelligence Surveillance
Act (FISA), now somewhat relaxed - Here you will see the blurring
of collection of criminal, law enforcement "evidence"
and the line separating collection of intelligence -
In 1978, Congress passed the Foreign Intelligence Surveillance
Act (FISA), which establishes a separate legal regime for
"foreign intelligence" surveillance. Title III (the
"Wiretap Statute") outlines the strict guidelines
regulating ordinary law enforcement surveillance, while FISA
regulates the government's collection of "foreign intelligence"
information in furtherance of U.S. counterintelligence. FISA
was initially limited to electronic eavesdropping and wiretapping.
In 1994 it was amended to permit covert physical entries in
connection with "security" investigations, and in
1998, it was amended to permit pen/trap orders. FISA can also
be used to obtain some business records.
As originally passed, any FISA investigation must have had
the collection of Foreign Intelligence Information as its sole
or "primary purpose." The USA- PATRIOT Act expanded
the application of FISA to those situations where foreign intelligence
gathering is merely "a significant" purpose of the
investigation. "Significant" is not defined,... The
more lenient standards that the government must meet under FISA
(as opposed to the stringent requirements of Title III) are
justified by the fact that FISA's provisions facilitate the
collection of foreign intelligence information, not criminal
evidence. This continues to be a very contentious topic, with
the Supreme Court involved just last week. Stay tuned.
The lives of private citizens also will be affected more deeply
by other anti- terrorism efforts. The long waits for security
procedures at airports suggest the harder questions to follow
about whether people will carry national identity cards or let
their biometric identifications be taken for special advance
screenings as "trusted travelers." There are still
harder questions about how private citizens might be eyes and
ears in the war on terrorism.
Here we have not heard the vociferous public debate regarding
"What ’s a pound of security worth?" "What does
it cost?" that we might have imagined. Emerging technologies
like biometrics are improving the private and public sectors'
ability to gather individual information. Use of these technologies
is increasing, but not without debate about balancing security
interests with individual privacy concerns. While biometric
technologies (fingerprints,iris scans,facial recognition systems,etc.)
are rarely 100% accurate and often produce false positives,
their use in increasing almost without question. Here we find
the classic tension between security, in this case, homeland
security, in the form of
screening, and perceived Constitutional guarantees of privacy
and protection from unreasonable search & seizure. Technology
has without a doubt enabled "search" and raised questions
of invasion of privacy in the most unobtrusive ways. No longer
does a ham-handed official in a uniform have to physically "pat
you down" and turn your pockets inside--out to find out
all about you.
The American public seemed to accept the additional waiting,
scrutiny and interviewing at US airports and other venues if
it might catch the next Zacharias Massaoui. The compromise of
our convenience was taken in-stride, as will more likely need
be as we move forward with our actions in Iraq and heightened
alert status. But the needle hit the red-line on the civil liberties
meter when details of the government ’s "Total Information
Awareness" (TIA) research program were published. Alas,
many of the claims regarding actual technical capabilities of
this program, as well as it’s ‘intent’, were overstated. Nonetheless,
the capabilities of TIA were perceived by many to be overreaching:
the government would have too
much detailed information about innocent U.S. citizens.
Many test cases are already beginning the process of tuning-up
the
biometrics/surveillance, privacy questions. Do US citizens mind
that all those in attendance at the Super bowl had facial recognition
technology applied to their images? http://www.rand.org/publications/IP/IP209/IP209.pdf
The Virginia
Department of Criminal Justice Services gave a $150,000 grant
to the city of Virginia Beach in July 2001, to help the city
obtain face recognition cameras to look for criminal suspects
and missing children. Although officials had initially expressed
mixed feelings about the technology, the city council voted
on November 13 to install the software at the oceanfront. What
about children at Disney world? Will parents object? Perhaps
this is where we must end up as a nation to ensure our security.
These are a few of the growing number of examples. For now and
the long-term,technology and policy are inextricably linked.
The debate is far from over. The pendulum is swinging, and
the two poles are near and dear to our hearts: Our nation’s
security on the one hand and our constitutional freedoms on
the other. The post 9/11 environment demands we examine a new
equilibrium for that pendulum; balancing what we as a people/nation
are willing to sacrifice individually and collectively for our
nation’s security and in support of intelligence.
But what truly is "intelligence "? Information.
Whether it was Moses sending out two spies millennia ago to
gather information or decrypting Japanese intercepts before
Pearl Harbor, information (intelligence) has been both openly
and clandestinely collected. Both were cases to support "policymakers
".
It is important to be clear about the role of intelligence
with respect to policy - at least the traditional role - intelligence
‘informs’ policy, it does not make policy. A simplistic example
is the following. Intelligence analysts could provide the following
information/intelligence to their policymaker consumers: "the
bridge is out ". However, they cannot be prescriptive by
saying "Don ’t go down that road ". It ’s a very tricky
line to walk. Intelligence doesn’t make policy, but in many,
many cases it does carry out policy at the direction of the
President. Whether in agreement or not with a particular (foreign)
policy, the intelligence community, often those organizations
with paramilitary and special operations capabilities,
are directed to "take that hill" (or more recently
"take out that terrorist"). This brings us to asking,
when implementing policy do we send in the Marines, the cops
or the spooks?" And do we do it at home and abroad? In
crafting the mission for homeland security these are very valid
and serious questions.
Sept. 11th forced our government to ask previously imponderable
questions and rethink, and truly seriously challenge "the
way we ’d always done things". The issue of a HLS mission,
its goals and challenges made nearly everything fair game and
some wondered if it left anything sacred.
Many have said "Homeland Security begins Abroad ".
We don ’t have time to belabor the distinctions between Homeland
Security and Homeland Defense in today’s discussion. Creation
of DHS was meant to address both. If we focus on the ‘security
’aspects, we see that to successfully carry out the HLS mission,
our government will be collecting intelligence domestically
and abroad. The targets will be resident in the US and the collection
activity a curious blend of intelligence (domestic) and law
enforcement. You can see the necessity for a special breed
of analyst and investigator to carry out the HLS mission. Had
the entire mission been given to CIA, their focus would have
been on the predictive, crystal ball, future scenarios and very
importantly, they would have held their sources close to the
vest. This serves no purpose when our goal is to "wrap
these guys up", which is the purview of law enforcement.
But the downside is that they are trained to work reactively
- after the fact - and we all pray there is no "after the
fact "for them to investigate. So, are we proposing marrying
Jane Bond and Columbo?
Our government ’s wisdom recognized that both roles were important,
but needed to overlap, to complement each other and, as you
all heard repeatedly in the media - cooperate, coordinate and
communicate. (Personal note: re cooperation since Ames,etc.)
One of the greatest challenges we face is passing the baton
between foreign intelligence collection (the CIA has been tracking
a bad guy overseas and has information he ’s connected to other
bad guys in the USA) and
domestic intelligence/law enforcement. Actually, Director Mueller
committed to reshaping the FBI into a counter-intelligence,
counter-terrorism organization from its historic criminal and
law enforcement incarnation. Overcoming 50 years of culture
and tradition on either side is a monumental challenge. We are
now about to do this under the most adverse of circumstances
- being at war - physically and ideologically -and with the
rules ‘in flux ’as questions of privacy, civil liberties are
debated with the unquestionable need for national security.
Recently, in reviewing the feasibility of DHS carrying out
the monumental charter it was given on Nov.15, our nation ’s
leaders concluded that there should be a dedicated focus on
intelligence with respect to the threat of terrorism and proposed
that hybrid we ’ve described earlier. This resulted in the creation
of the Terrorist Threat Integration Center, which is
designed to be one central location where all foreign-and domestically-generated
terrorist threat information and intelligence is gathered, assessed
and coordinated.
The center will be composed of elements of the Central Intelligence
Agency (CIA), the Federal Bureau of Investigation (FBI), the
new Department of Homeland Security and the Department of Defense.
It will be headed by a senior U.S. government official, who
will report to the director of Central Intelligence, George
Tenet.
Naturally, this will mean each respecting the legal statutes
that separate their authorities to collect and share intelligence
and yet work closely together.Many barriers to sharing intelligence
have been broken down this past year, but information on private
US citizens continues to be sacred.
We know that all forces: the Law Enforcement Community, Intelligence
Community and military - including reserves and National Guard,
all have roles to play in the Homeland Security Mission. The
Posse Comitatas Act forbids the use of US military forces to
carry out law enforcement functions on US soil; but does not
prevent them from protecting our borders, infrastructure and
homes.
Leadership :Team
We certainly know what the challenge is and we know that we
are engaged in a war on terrorism (war with an NGO). The theme
of the Colloquium is Leadership: On War and Terrorism. Compared
with World War-II, we have a broader leadership to draw on.
No longer will the President, supported by the Secretary of
Defense, fight the war (we didn’t have a DCI in WW2). We probably
have more non-military members on the leadership team than ever
in history. It is clear that the DCI must play a strong role
coordinating with the SecDef (and his new USDNI) and draw on
his Director of TTIC, Dir. Mueller of the FBI as well as Secretary
Ridge. There is another aspect that our leadership will be considering
in this war: the role and participation of the private sector
and private US citizens. It has been 150 years since there was
a war on US soil. Much of what is to be protected is in the
hands of the private sector and tightly interwoven with our
economy (critical infrastructure, etc.). Therefore, unprecedented
coordination will be required. This extends the leadership circle
to include leaders of US industry. Even private citizens are
not exempt for sharing some of the load.We are all in this together.
Today, we have a new paradigm both in terms of our adversary
and our
response. That response may rest on the shoulders of the leadership
today, but it will be handed down to the leaders of tomorrow;
students such as yourselves who consider a career in public
service. I found it impossible to completely leave public service
and hope that you too will experience that "calling"
and respond as only your generation can.
Thank You for your kind attention and please, any questions
would be welcome.
The opinions expressed herein are solely those of Ms.
Snyder and do not represent those of RAND or its sponsors.
References:
USSID 18: http://cryptome.org/nsa-ussid18.htm
FISA: http://www.epic.org/privacy/terrorism/fisa/
Protecting the Homeland: One Year Later
By Gregory F. Treverton
This opinion article appeared in the San Diego Union Tribune
on September 8, 2002.
http://www.rand.org/hot/op-eds/090802SDUT.gft.html
Dissect the Divisions
By Gregory F. Treverton
This opinion article appeared in the Baltimore Sun on June 9,
2002.
http://www.rand.org/hot/op-eds/060902BS.html
Super Bowl Surveillance: Facing Up to Biometrics
John D. Woodward, Jr. IP-209, © 2001
http://www.rand.org/publications/IP/IP209/IP209.pdf
The Big Difference Between Intelligence and Evidence
By Bruce Berkowitz
This opinion article appeared in the Washington Post on February
2, 2003.
http://www.rand.org/hot/op-eds/020203WP.html
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