Prodded by mushy-headed civil libertarians, Democrats in the White House and Congress have for years hobbled the CIA and FBI's efforts to fight terrorism, with especially dire consequences on 9/11, says Andrew C. McCarthy. His must-read piece from the current issue of Commentary is titled, "The Intelligence Mess: How It Happened, What To Do About It." McCarthy is the former chief assistant U.S. attorney in New York, and led the 1995 terrorism prosecution of Sheik Omar Abdel Rahman tied to the first World Trade Center bombing.
Intelligence-gathering is something of a square peg in the round hole of contemporary political morality...It is about assuming and preparing for the worst in an era that sees "bad" as an outmoded adjective for "different," another dash of enlivening spice in a rich social stew.
Now, however, that foreign pathologies long denied have visited their excesses upon us, many among the benignly tolerant have turned overnight into the equivalent of ambulance-chasers. In particular, they have confidently laid at the door of America’s intelligence apparatus the success of America’s enemies on September 11, 2001....This has now become conventional wisdom, accepted on all sides...A ramified system of multiple agencies having similar missions and chasing the same budget dollars will inevitably produce rivalry; rivalry begets pettiness, and pettiness begets failure.
...But is it true that inter-agency rivalry is the problem everyone claims it is?
..like many facts that appall at first blush, internecine warfare is only, at best, half the story...rivalry—overall—is a virtue...
..The real problems..are..structural and philosophical....As with much else in our national life, the bacillus now grown to plague America’s intelligence apparatus took root in the unrest of Vietnam and the upheaval of Watergate...For a generation of activists soon to take up positions of influence in politics, academia, and the media, the antiwar movement inculcated a lasting aversion not only to the exercise of American military power but to the agencies tasked with assessing threats to our national security, not to mention the real-world grunt work of intelligence.
..(With) President Jimmy Carter’s acquiescence in the 1978 Foreign Intelligence Surveillance Act (FISA)...for the first time, Congress and the courts undertook to regulate the gathering of national intelligence, particularly by electronic eavesdropping, against agents of hostile foreign powers....the executive branch would not be allowed to use whatever tactics it, as the branch with the most expertise and information, determined were necessary to protect the nation.
Rather, it would be compelled to go to a federal FISA court newly created for the purpose, and, as with the procedure for criminal wiretaps, it would need to establish probable cause that the target was an agent of a foreign power. Electronic surveillance would be permitted only if the judges approved.
The impact on intelligence collection was serious....The insanity reached its apex in 1995 with the "primary purpose" guidelines drafted by the Clinton administration: henceforth, a firewall would be placed between criminal and national-security agents, generally barring them even from communicating with one another.
The damage from the firewall and the impediments to FISA has been incalculable.....in the waning weeks before the September 11 attacks...Zacarias Moussaoui, who had paid cash for pilot training (and was reported to authorities when his bizarre behavior—including intense interest in how cabin and cockpit doors worked—could no longer be ignored), was detained by the immigration service. Worried FBI intelligence agents were desperate to search his computer, but were turned down by supervisors who decided there was insufficient evidence to go to the FISA court. His al-Qaeda membership and numerous connections to the hijackers were not uncovered until after the attacks.
And the Moussaoui travesty itself pales in comparison to the story of Khalid al-Midhar and Nawaf al-Hazmi, excruciatingly recounted in Slate by Stewart Baker, general counsel of the National Security Agency during the early Clinton administration. The pair, who had trained to pilot planes, lived in California. In August 2001, an astute FBI intelligence agent was trying to find them, and asked the criminal division for help. But FBI headquarters stepped in and insisted that the firewall not be breached: criminal agents were to stay out of the intelligence effort. A few weeks later, al-Midhar and al-Hazmi plunged Flight 77 into the Pentagon, their manifold ties to Mohammed Atta and the other hijackers kept safely under wraps.
....U.S. law and tradition (strenuously supported by many of the same politicians who today bluster about the CIA’s lack of dot-connecting skills) rig intelligence as if it were Russian roulette: the agency whose raison d’ętre is to counter foreign threats to our national security is precluded from participating in investigations once they cross into our nation, while the agency that is expected to pick up the ball and run with it from there does so without the CIA’s depth of knowledge and expertise.
The ill-conception of this arrangement has become increasingly patent. With the info-tech revolution, al-Qaeda operatives seamlessly share information across borders with the click of a mouse, enabling them instantly to construct a complete picture of their prey. By contrast, the forces charged with keeping us safe from them are expected to complete awkward hand-offs as persons and information roam in and out of the country.
The windfall beneficiary is, ironically, the terrorist operative who happens also to be an American citizen. Such an operative is not only protected by the full panoply of constitutional rights wherever in the world he travels but is radioactive to the CIA, which is no less fearful of the perception that it is spying on Americans than the Justice Department was about the appearance of misusing FISA.
...Bin Laden struck us repeatedly in the eight years leading up to September 11. From the thousands in al Qaeda’s swelling international ranks, we plucked about 40 and indicted them, bathing them in all the rights of American defendants, and arming them with information from our intelligence files to prepare their defenses.
Was September 11 the worst intelligence failure in our country’s history? Or was it, rather, a national failure, the failure of a country that allowed its sense of decency to overwhelm its instinct for survival and that effectively convinced its enemies that they could strike with impunity?
A political class that appreciated the stakes involved...would not hasten to dub every episodic setback an intelligence failure without asking searchingly whether we have set our agencies up to fail. It would have the necessary perseverance, through the inevitable torrent of catcalling, to retrace a quarter-century of missteps. And it would construct its remedies on the basis of a correct diagnosis of the disease. Right now, when we need it most, this is not the political class we have.