TCS Daily


MI-5: American Style

By Pejman Yousefzadeh - May 23, 2006 12:00 AM

Richard Posner, the polymath judge who sits on the United States Court of Appeals for the Seventh Circuit, recently called for the creation of a domestic intelligence agency. In so doing, he reveals the problems with the current domestic intelligence set-up:

The British understand that a criminal-investigation culture and an intelligence culture don't mix. A crime occurs at a definite time and place, enabling a focused investigation likely to culminate in an arrest and conviction. Intelligence seeks to identify enemies and their plans before any crime occurs. It searches for terrorist sleeper cells in the U.S. with no assurance of finding any. Hunting needles in a haystack is uncongenial work for FBI special agents. And so at the same time that the attorney general was testifying before Congress that the National Security Agency's intercepting some communications of U.S. citizens is essential to national security, leaks from inside the FBI revealed that special agents are disgruntled at having to chase down the leads furnished to them by NSA. FBI special agents -- the bureau's only operations officers -- want to make arrests, and so they zero in on animal-rights terrorists and eco-terrorists -- people known to be committing crimes and therefore relatively easy to nail. These people are criminals and should be prosecuted, but as they do not endanger national security, prosecuting them should not be an intelligence priority.

Given the possibility of future terrorist acts on American soil, Posner's recommendation in favor of creating a domestic intelligence agency makes some sense. Compared to other countries, our relative vacuum in the field of domestic intelligence-gathering and analysis does not bode well in our efforts to secure the United States. But if such ever comes under consideration, the question becomes: what kind of domestic intelligence agency will we have?

Posner notes that FBI agents would not make good intelligence operatives, just as intelligence operatives would probably not make good crime-fighters. The skill-sets of both groups are too much at variance to expect one group of people to perform both jobs. As such, it is may be better to take the responsibility for counterintelligence operations away from the FBI and to create a separate agency.

Counterintelligence agents are charged with the responsibility of ferreting out and defeating many enemy intelligence operations to be carried out on American soil. Thus, the expectation that the counterintelligence bureau would take up responsibilities associated with larger domestic intelligence activities is a natural one. Posner notes that while MI-5, the British domestic intelligence service, works closely with Scotland Yard, it is not part of Scotland Yard. A similar arrangement between an American counterintelligence/domestic intelligence agency and the FBI can be easily envisioned and would likely work well along the lines of the British model.

Of course, the spinning-off of a new agency could very well create the kind of bureaucratic confusion I have previously decried. So while I may argue for the spinning-off of a new domestic intelligence agency from the FBI, I would argue as well that any increases in personnel and/or budget have to be strictly mission-specific, meaning that there should be a distinct and defined task or sets of tasks associated with any request for increased personnel and money. In the absence of any mission-specific justifications for an increase in budget and/or personnel, the creation of a new domestic intelligence agency should be revenue and personnel neutral. Not only will this ensure a more effective domestic intelligence agency, it will also serve as a beneficial example for the rest of government as it sets its personnel and budget priorities.

In addition, now that we are apparently stuck with the creation of a National Intelligence Director (NID) to serve as an "intelligence czar," a new domestic intelligence agency should be strictly answerable to the NID and serve as part of a unified chain of command that reports directly to the NID, and through him, to the President. As with MI-5, a domestic intelligence agency should not have the power to arrest but can work closely with the FBI by supplying it with information. This will mean facilitating the level of cooperation that exists between the intelligence agencies and the FBI. We have come a long way in establishing lines of communication between the intelligence and law enforcement communities ever since September 11th, but we have further to go yet.

There is a need to balance security with civil liberties -- and many other procedural issues would need to be worked out before we could expect a domestic intelligence agency to function with any semblance of efficacy. But the number of challenges that come with the creation of such an agency should not prevent us from creating it.

Pejman Yousefzadeh is a lawyer and a TCS contributing writer.

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24 Comments

Existential enemies
"The British understand that a criminal-investigation culture and an intelligence culture don't mix. A crime occurs at a definite time and place, enabling a focused investigation likely to culminate in an arrest and conviction. Intelligence seeks to identify enemies and their plans before any crime occurs."

In the old days, someone had to DO something to get arrested. Not any more. In the new day a-dawning, he'll merely have to be.

We have ways of finding out what you're thinking. And if in our sovereign judgment you are thinking ill of the administration that's clearly a thoughtcrime.

And since due process is something we've regrettably had to jettison in the name of freedom, we'll just have to put him in preventive detention, lest he actually do something. For how long? How long does it take, before you know for certain your suspect will never do anything?

Take Jose Padilla, for instance. How long will they have to keep that person incommunicado? They can't try him-- they don't have any evidence. Because he hasn't done anything. He's a preventive detainee-- among the first of many to come.

information
Information only has commercial or intelligence value if it is restricted. It is impossible to have an honest society and a private society. If we want honesty and safety then ALL information collected by the govt should be posted on the web.

Hysterics
But that's nothing new to Roy.

>"In the old days, someone had to DO something to get arrested. Not any more. In the new day a-dawning, he'll merely have to be."

As far as I know, it has always been a crime to plot and prepare to perform a crime. It is called conspiracy to commit a crime and many people have been put in jail for it. But hey, don't let reality stop you from using mediocre sarcasm.

>"Take Jose Padilla, for instance. How long will they have to keep that person incommunicado? They can't try him-- they don't have any evidence. Because he hasn't done anything. He's a preventive detainee-- among the first of many to come."

Yes, let's take poor, poor Jose Padilla. He was merely a student of Al Queda in Pakistan, Afghanistan, Egypt, and Yeman. He trained for three months at the al-Farouq camp in Afghanistan and was tutored in the fundamentals of marksmanship and explosives and then went to the frontlines of the Afghan civil war. While there he was approached by Mohammed Atef, al-Qaeda’s military commander.

It gets better: before he could be sent to the United States by Atef, the American war against al-Qaeda and the Taliban commenced. Fleeing to Pakistan with other al-Qaeda members, Padilla soon became acquainted with another veteran terrorist Abu Zubaydah and Khalid Sheikh Muhammad, you know, the mastermind of 9/11.

Padilla was charged by KSM with carrying out a plot targeting apartment buildings and assigned targets in New York City. With $10,000 and further instructions, Padilla was sent to the U.S. in May 2002, where he was intercepted and arrested by FBI agents. He is then called an "enemy combatant" and taken into military custody.

He is charged with 11 counts of criminal acts including terrorist conspiracy, conspiracy to commit murder, and material support to terrorists. If that is your definition of "done nothing" then I would like to know what it takes to be defined as a criminal in your book. But, as we know, in Roy's book all things are relative.

So why is the government hesitant to bring Padilla to civil court? Because the defense would require that mass murderers such as Khalid Sheikh Mohammad and Abu Zubaydah, who are still valuable sources of information in the War on Terror, to the witness stand. This would undoubtedly lead to calls for those two men, along with other al-Qaeda leaders, to be afforded rights reserved for conventional criminal suspects, an unacceptable surrender of mandated war powers.

The government has a huge case against Padilla due to its justified investigation of the AIG and there terrorist funding activities. Much of Padilla's travel and expense were paid by this group and much of this information is known because of the Patriot Act.

For all the hysterics and "slippery slope" crap that keeps spewing from the mouths of people like Roy we have yet to see the boxcars full of people being hauled away or jackboots kicking in doors. If Padilla was "first of many to come", where are the others? If this guy wasn't an enemy combatant then what is your definition?

So Roy, please stick to commenting on things you know about although I have no idea what that could be.

Just plain stupid...
or just childish fantasy. Pick one.

Government Evolution and Totalitarianism
Why don't we just outsource this to the KGB and be done with it? After all, Khrushchev was right when he predicted that the US and USSR forms of government would both evolve into a state where they were indistinguishable.

We're almost there. The Constitution has been eviscerated.

The 1st Amendment is in tatters. The 2nd might as well not exist. The 3rd hasn't been tested recently but I bet it will be at the Mexican Border or the 'War on Terror'.

The 4th is in tatters (just think War on Drugs, No Knock Warrants, Patriot Act's Sneak and Peek, etc), the 5th is in tatters - just think of the widespread abuses of eminent domain for private use, the 6th is a joke since most citizens arrested for a crime spend months, if not years in lockup (like Jose Padilla), secret trials and secret evidence are all the rage.

The 7th is routinely abused by the Trial lawyers who go jury shopping to extort the maximum penalties from companies whose products or facilities (in the main) have been abused by idiots looking for a quick buck. In addition, the concept of 'double jeopardy' has been eliminated since lack of criminal conviction inevitably leads to civil conviction and impoverishment.

The 8th is routinely abused through asset forfeiture and other 'creative' government techniques to impoverish and leave defenseless those who would defy them. Also, innocent citizens who defend their lives and properties against invading thugs are routinely sued and impoverished through civil suits charging excessive force and other equally stupid concepts like unjustified homicide.

The 9th is ignored as is the 10th. As far as the government is concerned all power is vested in Washington and they dole out the little they don't want back to the states - which is the antithesis of these amendments.

Incumbent Senators and COngressmen are re-elected 98% of the time so all we get there is more of the same. Particularly as they delegate the actual law writing to the staffs of the burgeoning Executive Branch and their interpretation to the Courts.

As a result, we're ruled by a panel of 9 humans in black robes. The government confiscates almost 50% of our wages. By next year Federal identification papers will be required for all residents.

By 2050, the trandsormation will be complete. Hopefully, by then, I'll be dead and my grandchildren (and grand neices, nephews, etc) will have escape to the moon, Mars and other stellar systems.

Original quote:

"The reformation was preceded by the discovery of America, as if the Almighty graciously meant to open a sanctuary to the persecuted in future years, when home should afford neither friendship nor safety." -- Thomas Paine (Common Sense, 1776)

Updated Quote:

"The new reformation was preceded by development of access to the Moon, Mars, and other stellar systems, as if the Almighty graciously meant to open sanctuaries to the persecuted in future years, when home should afford neither friendship nor safety." -- Jim Kress (More Common Sense, 2006)


The New NIH
I guess we'll have to take away the NIH acronym from the National Institutes of Health and give to the new Needle In the Haystack department that will carry out domestic spying in order to protect our freedoms, such as privacy.

And now...
the hysterics are complete.

This is so tired they were saying back in the 40s. The Constitution is still there and will be for a long time from now.

Education not abdication
The Constitution is ignored because most people have not read it lately, if at all. Unfortunately, the modern American educational system no longer teaches the Constitution because it doesn not support their political agenda.

I had to pass a test on the U.S. Constitution get get out of 7th Grade and a test on the state constitution to get out of 8th Grade.

My children had to read neither! Now with standardized testing, studnets are tested on everything but their knowledge of the Constitution.

Keep the people ignorant and you can get away with anything. We can't restore our rights, if we don't know what they are.

Sunshine, the best disinfectant
I want honesty and openness (glasnost). I can take care of my own safety, thank you. All information gained by the government should be accessible to its people.

Most of the material marked "secret" is known already to our enemies. The reason for its being kept secret is to hide it from the public. We should view with alarm the policy of the current regime in going back to reclassify information previously given to the public.

I would be the CIA's biggest backer if they pursued a policy of digging up the secrets of other governments, and publishing these secrets to the web. It would be a lot harder for the bastards of the world to operate if everyone knew what they were up to. That, of course, is our bastards as well as their bastards.

The evidence against Padilla
"As far as I know, it has always been a crime to plot and prepare to perform a crime. It is called conspiracy to commit a crime and many people have been put in jail for it."

NO evidence has been proferred publicly that Padilla took part in any plot against the US. You offer voluminous claims about events I've seen alleged but the proof has been lacking. How about offering a citation so I can see where you're getting this stuff?

If you show me something that can hold up in a court of law I'll change my mind. I have no idea whether or not the guy was up to something. All I'm saying is that they're not giving him his day in court, and they're not offering to us that they have anything on him. It's just their word against his.

So please address this imbalance by showing me the evidence. If it's any good I'm actually very easy to convince.

Second subject: if we don't ever get to the point where boxcars of people are getting hauled away it'll be because of people like me exercising constant vigilance. It all starts with little shortcuts and graduates to the bigger stuff. Already the Bush White House is claiming it is the law, and so can't be touched by mere mortal laws. This is wrong by everything American.

Ignorance is bliss - at least for you
Your complete ignorance of the reality surrounding you is tragic.

You remind me of the Germans in the Wiemar Republic who were convinced Hitler would never have any effect on their lives. You probably would have classified the German Jews who fled the country as 'hysterics' too.

According to you, the intellectual class in Cambodia (e.g. those people who wore glasses) were also hysterics, even as they were being murdered in the killing fields.

It's people like you, with a complete ignorance of history and current events, that have caused the death of over 50 million people by their own governments over the last century.

Oh yeah, I noticed you were unable to refute any example I posted. So, that too is indicative that you are unqualified to define anything as hysteria.

Let's take a look your "reality"
The Bush administration in no way resembles the rise of the *****. To believe this is to be a hysterical idiot. I don't see them nationalizing industry, controlling the media, or filling up trains to send to death camps. I remember during Reagan's terms that such stupidity was spoken as well. A reminder that the ***** were national socialists and not really driven by capitalism as our government is.

Same with your Cambodia connection, uttely baseless. Again I remind you that this was yet another attempt at a Marxist utopia that ended the way all such experiments do... with millions dead.

>"It's people like you, with a complete ignorance of history and current events, that have caused the death of over 50 million people by their own governments over the last century."

Actually, its people such as yourself that inhibit the rooting out and destruction of the very forces you describe. I am sure that Islamofascists love such "useful idiots" such as yourself and smile when you rant against the very powers that prevent them from making their repressive dreams a reality. But hey, the point is to make you seem enlightened right?

As for refuting your examples perhaps you would like to address my points about Padilla and compare them to yours. In the end, it is hard to refute examples posited by someone so paranoid.

Perhaps you can provide me with a single country on Earth that has better freedoms, higher quality of life, a dynamic and robust economy, and ability to better one's situation than the US. I am sure you can since we are barely one step away from a fascist dictatorship in your fevered mind.

So I guess I should thank you for the education. Without it I would have never learned that your grasp of history, much less reality, was so very shakey.

Once again... lazy
The box you are typing into is linked to the internet. Padilla's history and the charges against him are all over it. If you can't find it then it is no surprise that you so very little about what you talking about.

As for Padilla's day in court. He is an enemy combatant who has fought with foreign powers and conspired to engage in acts of terrorism in the US. Do to his own involvement with enemy forces and for the protection of information that could lead us to others of his kind he is being processed by military tribunals.

>"if we don't ever get to the point where boxcars of people are getting hauled away it'll be because of people like me exercising constant vigilance."

This is a joke right? I find it amazing that you actually believe that opposing everything Bush does is "constant vigilance". It is childish and merely a prop for you.

Don't worry, come next election the big, bad fascist will be gone and quite possibly be replaced by a Democrat. Watch what happens next in the media: the poor will go away, terrorism will become a mere "incovenience", covert surveillance will be directed at the real threat (right-wing militias), gun laws will become fashionable again, and the economy will actually be reported truthfully as excellent.

Yep, all your fears will melt away until the next Republican comes into office. At that time you can polish off the old Nazi comparisons and start defending the rights of terrorists again. Ah yes, good times Roy.

Dispensing with justice
I've checked out the resources offered by the "box I'm typing into. They don't offer much.

The Justice Department described him as a "trained, funded and equipped terrorist". Yet they've offered no details as to his training, they've described no funding and they apprehended him with no equipment. Naturally we should uncritically swallow their allegations.

There does appear to be some actual evidence against him, for instance alleged contacts with Adnan Shukrijumah and specifics of conversations about blowing up apartment buildings by leaving the gas on in an apartment (!). These should be presented at trial so they can be addressed by evidence from the defense.

What you're saying is a sentiment popular with small town hicks back in the nineteen oughts, teens and twenties. We know the guy is guilty so why bother with the trial. Let's just string him up now, as an example to the others.

I would respectfully disagree with this approach, which diminishes us as public citizens.

On the use of public outcries
Our conversation: (Me) "If we don't ever get to the point where boxcars of people are getting hauled away it'll be because of people like me exercising constant vigilance."

(You) "This is a joke right? I find it amazing that you actually believe that opposing everything Bush does is "constant vigilance". It is childish and merely a prop for you."

Public outcries are necessary as a check on government excesses. If it weren't for an informed and aggravated public, people like Richard Nixon and Joe McCarthy would have gotten away with their slanderous and underhanded attacks, and the country would see the adoption of these tactics by every administration. But they were laughed out of existence by people like me.

Another example would be the Japanese-American internments in World War II. Something like this is unlikely to ever happen again due to the popular outrage that was voiced over it. It's a useful tool, and I plan to continue using it.

I see...
that your research skills are as good as your skills with an analogy.

>"There does appear to be some actual evidence against him,"

So you found some huh? Pretty easy to do considering the amount of evidence they learned just by monitoring his contacts in the AIG.

The fact that you ignore the mountain of documented and availible evidence of his funding, his travels, and his contacts tells me that you are in no way serious about uncovering the truth. Much of Padilla's story has been uncovered by sources outside the control of the "evil fascists" that are holding him.

>"What you're saying is a sentiment popular with small town hicks back in the nineteen oughts, teens and twenties. We know the guy is guilty so why bother with the trial. Let's just string him up now, as an example to the others."

Actually what I am saying is with the wealth of evidence and the particular situation we are in that Padilla is to be treated differently because he IS different. The circumstances, that Padilla placed himself in of his own free will, that surround his ties to terrorism, his contacts, and his plans demands his being labeled as an enemy combatant. Do I need to remind you of Sheikh Omar Abdel Rahman and his defense attorney Lynne Stewart? If you don't remember, look them up. I would say this is a lesson learned.

But hey, attributing such facts as the sentiments of a hick is much easier than actually analyzing the them honestly. Less brain power needed.

Public Outcry = Good?
Always?

What if the outcry is ignorant and infantile? Which is better, the outcry of citizens against illegal immigration or the outcry of illegal aliens against immigration policy?

Like most critics of government you believe that Loud = Truth.

BTW, Joe McCarthy has been vindicated. Please read up on him and learn the truth over the demonization.

The sentiments of a hick
What you're saying is not at all the case. I think there's avery good chance that the guy is no good. But my point is if that is the case, they need to go by the rules. Better to have someone like this twerp go free than to overturn the entire rule of law and have a police state. Really.

It's not that hard to do it right. They could use FISA to surveille anyone they're concerned about, gather evidence and give it to twelve of our citizens to sort out. I am definitely NOT in favor of leaving it all to jerkwads like John Ashcroft or Alberto Gonzalez, to use their best judgment. If they can't make a case, then they need to start letting people go.

Competing interests
In a showdown between US citizens and noncitizens, I'd side with our people-- if that were the only dimension to the issue. But in a showdown between a good working policy and a needlessly draconian effort, I would go with common sense and against politics.

We all know immigration can't be completely unrestricted. So I like the Senate bill, which deals with the facts on the ground sensibly and crafts a very workable future policy. I also like the President's idea. I may not agree with him often, but he makes pretty good sense here.

The House bill just panders to the boobs among the population. No way would they be doing something this dumb if it weren't an election year. If it passes we'll pay every which way-- jobbers won't have access to a talented, low-wage labor pool, prisons will have to be built to house these unfortuunate job seekers, and the quality of life here will decline. It's a lose-lose-lose.

http://www.texasobserver.org/showArticle.asp?ArticleID=2193

Let's see...
How about naming all the other American citizens held in the manner of Padilla. If this is such a slippery slope there must be more right?

Or perhaps this is a case that requires the retaining of Padilla and his processing through military channels. What you see as the "overturn of the entire rule of law" I see as the proper handling of a terrorist who wished the destruction of innocent lives through a conspiracy with foreign powers. His usefulness now is to assist in the capture of others of his kind. Perhaps simple-minded liberals, like youself, do not understand the gravity of the situation we are in but at least "jerkwads" like Ashcroft and Gonzalez do.

They did it right and evidence is out there for you to see if you didn't let your paranoid fantasies get the best of you. Use some of that mighty skepticism for a brief minute and look at the facts of the case, not just what is written in the Nation or Salon.

I know it is hard to swallow for someone who really can't understand the difference between right and wrong, good and evil but sometimes harsh measures are needed to deal with the evils of the world. In this case: good call by the government.

At least...
we agree somewhat on immigration policy which will no doubt make me rethink my position.

At least you agree that public outcry does not automatically equal good.

You're still not getting my point
"I see as the proper handling of a terrorist who wished the destruction of innocent lives through a conspiracy with foreign powers."

WE DON'T KNOW THAT!

In our system of justice a man is innocent until proven guilty. He also has certain inalienable rights, defined in the Bill of Rights and known generally under the rubric of habeas corpus.

He has a right to trial, and cannot be incarcerated indefinitely just because some bozo in government decides he is a dangerous threat.

You claim to be against dictators like Saddam. Isn't one of the principal ways we distinguish ourselves from people like him the fact that we follow the law when convicting someone? That we don't just jail political prisoners without going to trial and obtaining a conviction?

Padilla may be guilty as hell. Why don't we bring him to trial and find out?

Americans like you are scary as hell. You believe nothing I was brought up to rely on.

Sorry. I am not fluent in stupdity.
Shout all you want but we do know a great deal about Padilla.

His joining with foreign powers for the purpose of performing terrorist acts, well documented, and his connection to many leaders amongst those organizations, again well documented, makes him a special case and a military prisoner.

Once again, refer to Lynne Stewart. Why throw away valuable intelligence for a show trial?

So where are these other Americans who suffer as Padilla does? Your slippery slope or erosion of rights sure does take a long time to manifest. Perhaps it is like the climate change slippery slope? Here's a pointer, add "your grandchildren will suffer the consequences of our inaction" to your argument. That will give you the ability to avoid having to prove an actual impact.

More on Padilla
How much valuable intelligence do you think the guy has? We've been holding him for years. Everything he knows would have been beaten out of him in year one. And the rest must now be outdated.

And pardon me, the right of every individual to a trial by his peers is not a "show trial". It is a determination of whether the person in question has actually done anything-- which Padilla clearly has not.

It may be that he has conspired to do something, and was apprehended before carrying out the plan. If so, the government should not be hesitant to present its case. They had no trouble bringing John Walker Lindh to trial. Their conspicuous failure to do so with Padilla points to the inescapable conclusion that something is wrong with the case.

The same applies to Yasser Hamdi, another American detained without trial. And for that matter the same applies to every remaining prisoner in Guantanamo. The ones who have been freed, most only after several years in detention, never had anything much in the way of evidence against them. And the government doesn't want to talk about the remaining ones.

The right to a trial is one of our most basic protections. Lightly set it aside and all our freedoms are diminished. I'm not moving on this one.

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