Is there a role for intelligence in the law enforcement world?


Way back in 2006, Studies in Intelligence had a book review by Richard Posner about the intelligence community in the post-9/11 Commission Report world.

He (and the reviewer) focused exclusively on the federal level but some of his comments about why the FBI has had such difficulty assuming the role of ‘intelligence agency’ are equally relevant to those in other law enforcement agencies attempting to introduce an intelligence component to operations.  By just about all accounts the FBI has made some impressive strides towards incorporating intelligence into their operations.  It took a very long time (too long) and the process isn’t complete but progress is being made.  I’m not the same can be said throughout the whole community.  So, while this was written half a decade ago, just replace the terms ‘FBI’ and ‘the bureau’ with your own agency and see how well these statements fit…

Posner asserts that there is a “crisis” in domestic intelligence because the FBI is proving that it cannot discharge its new intelligence duties. His evidence is mostly anecdotal, but it is also supported by history. The FBI, according to Posner, is in its eighth year of reorganization, and, despite protestations that it has “got it” this time, Posner argues that as a law enforcement agency, the Bureau will never be able to “change its culture” and embrace the intelligence mission. Posner describes at length the many differences between law enforcement and intelligence: law enforcement performance is measurable, intelligence is not; law enforcement seeks to make (countable) arrests and (countable) convictions, while intelligence wants to surveil and analyze and understand. He gives real-life examples including the so-called Lackawanna six case. For Posner, the intelligence mission is diverting the FBI from its real calling.

The Bureau structure is inherently decentralized and the Bureau’s 56 field offices essentially work for the Department of Justice’s 96 US Attorney’s Offices, which are scattered across the country. Since most crime is local and prosecuted locally, the provincialism of the FBI’s field offices is rational. If you add to that the fear that FBI agents have, according to Posner, that others will steal their cases and the fact that the judicial system discourages committing to paper or sharing data that can be discovered by defense attorneys, then you can understand that the nature of the FBI’s undertaking gives rise to cultural norms that are antithetical to intelligence work

There are other problems. The Bureau is accustomed to investigating crimes that have been committed, less so to the idea of gathering data or pursuing leads in an environment in which no law has been broken. (Presumably counterintelligence investigations are an exception).

The Bureau incorrectly believes that intelligence is a natural outgrowth of traditional criminal investigative practices. Criminal investigations are after-the-fact reactions to specific events, and their scope is limited.…The process is remote from the collection of bits of evidence relating…to quite speculative threats and from the interpretation of that evidence with the aid of…analytical techniques.

The Bureau is interested primarily in arrests, but such arrests not only potentially compromise greater understanding of the networks or leadership of terrorist enterprises but they can alienate US Muslim communities whose good will is key to penetrating terrorist conspiracies.

Posner adds to his case that the Bureau is unlikely to successfully undertake terrorist intelligence by rehearsing stories about the Bureau’s current problems. These includes accounts of troubles in starting up an intelligence shop; the rapid turnover of officers working in intelligence; the lack, presumably inevitable, of intelligence experience; the hiring of clerks to do analysis and the treatment of them as clerks; the so-so reputation of bureau-led joint terrorist task forces; the continuing complaints of local law enforcement; and the latter’s setting up of their own intelligence operations. He says the Bureau will be unable to change its culture, because it is still by mission a law enforcement agency and the two cultures are incompatible.

Posner’s solution is to create a seperate domestic intelligence agency that has no law enforcement powers. He argues that while such an idea might be met with hostility by civil libertarians the cold, hard fact is that intelligence operations are already occurring domestically.

Over the years I’ve come to believe that (particularly at the sub-federal level) independent intelligence agencies are probably the way to go.   The forseeable future will see a continued push for more domestic intelligence operations, not less. The problems of doing intelligence in a law enforcement culture are legion and the lack of real progress across the community in 10 years is not encouraging.  That being the case, we’re probably better off centralizing such operations and developing clear policies and procedures rather than allow every municipality to try to become mini-CIAs. We don’t want to return to the bad times of the 60s and 70s and recent reporting (and some common sence) indicates the danger of agencies without a solid understanding of intelligence trying to jump on the bandwagon.

I’m not sure the domestic intelligence agency Posner seems to be advocating needs to be a federal one and, in fact, state level agencies might be an alternative. States across the nation have been receiving lots of federal money since 9/11 in order to create ‘fusion centers’ which, for the most part, haven’t done a whole lot other than buy a lot of flat screen TVs, keep a variety of contractors employed and issue press releases about how cool fusion centers are. The creation of most of these centers has been the result of the availability of federal money rather than any sort of overarching vision of how such centers could/should actually work. Perhaps there is some way these fusion centers could be transformed to take over the role of a non-law enforcement domestic intelligence agency.

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Posted on 12 July 2011, in Uncategorized and tagged , . Bookmark the permalink. Leave a comment.

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