Capsule review of Judge Posner's trilogy on domestic intelligence bureaucracy reform

(I sometimes write capsule reviews - really short, just the facts ma'am summaries - of new books for specialist and technical journals. This is the early draft of one - it's still too long, needs to be down to about 700 words - but thought I would post up this draft review of Judge Richard Posner's trilogy of books on counterterrorism, written for a Hoover Institution public policy series published by Rowman & Littlefield. I may make some more changes on this here.)

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Richard A. Posner

Preventing Surprise Attacks:
Intelligence Reform in the Wake of 9/11
(Rowman and Littlefield 2005)

Uncertain Shield:
The U.S. Intelligence System in the Throes of Reform
(Rowman and Littlefield 2006)

Countering Terrorism:
Blurred Focus, Halting Steps
(Rowman and Littlefield 2007)

Richard A. Posner is perhaps the best-known and unquestionably the academically best-regarded judge in the United States who is not already a justice of the US Supreme Court. Leader exponent of the law and economics movement at the University of Chicago before joining the bench, he is a brilliant, wide-ranging jurist-academic who, after 9/11, turned his attention to counterterrorism. Between 2005-7, he produced three short books in a policy series from the Hoover Institution (on whose Task Force on National Security and Law Posner and I both serve) devoted to the problems of bureaucratic reform of US counterterrorism agencies. On evidence of this triptych, Posner’s pragmatic, economics-driven instrumentalism provides an astute lens by which to examine bureaucracies and institutions of domestic intelligence from within, focusing on their incentives and disincentives to undertake reform. The books are technically detailed, especially in the notes, yet are readable across the fields of security studies, political science, economics, law, and organizational theory. This is policy rather than academic literature; the purpose is entirely practical and instrumental, and the books’ audience is policymakers, government officials, legislators, and the analysts, academics, and others who advise them on how to improve US government counterterrorism programs. The focus is limited to counterterrorism and US domestic intelligence in particular.

The first book, Preventing Surprise Attacks, analyzes the Report of the 9/11 Commission and the Intelligence Reform Act of 2004 that resulted from it. Posner examines the analysis that led to the Commission’s conclusions, set against a brief but powerful historical, strategic, and comparative review of successful and unsuccessful surprise attacks, including Pearl Harbor, the Tet offensive, and the Yom Kippur war. He concludes that successful surprise attacks “follow a tried-and-true pattern, one that a reorganization of our intelligence system is unlikely to be able to disrupt.” (PSA, p. 13).

What is that pattern? Posner identifies characteristics to which surprise attacks generally have a family resemblance:

• an attacker too weak to prevail in conventional military terms;
• the victim’s perception of weakness contributing to misperceiving the threat;
• the victim lacking a deep understanding of the attacker’s capabilities and intentions, and so basing his expectations on how the victim would have behaved;
• the victim reasonably believing the danger lay elsewhere or in the future;
• the victim misinterpreting warning signs to fit a preconceived, mistaken narrative;
• the victim lulled by false alarms or deliberate deceptions designed to reduce attentiveness;
• the victim was in a state of denial about what forms of attack are hardest against which to defend;
• intelligence officers were reluctant, for career reasons, to challenge the conventional threat narrative; and
• warnings to local commanders of impending attack lacked clarity and credibility. (PSA 85-6)

That the pattern of successful attacks is not preventible absolutely by reorganization of the security system does not, however, render domestic counterterrorism pointless. On the contrary, the likely harms (particularly from a catastrophic terrorist attack using WMD, but also from the indirect economic, political, and social effects of another conventional 9/11, let alone recurrent but unpredictable attacks) are so large that very considerable measures and resources devoted to prevention meet probabilistic tests of costs versus benefits. That calculus also favors offensive as well as defensive counterterrorism as a counterbalance to the difficulty of defending the US’s nearly unlimited vulnerable points.

The second book, Uncertain Shield, takes up the bureaucracy of intelligence and counterterrorism in, as the subtitle says, in the “throes of reform.” It picks up with passage of the 2004 intelligence reform act and argues that its reforms were badly conceived because, relying upon mistaken analysis in the 9/11 Commission Report, Congress sought to centralize even further an already heavily top-down institutional structure, to fix perceived coordination problems among intelligence agencies. The effect was simply to add another layer of bureaucracy at the top (through the office of the Director of National Intelligence) that did nothing to improve the informational inputs at the bottom or its informed analysis but which instead considerably slowed and weakened analysis.

Analyzing a factor ignored by nearly everyone, Posner examines the problems of inadequate automation systems for dealing with classified data existing even within the midst of the world’s most technologically sophisticated surveillance systems. He shows, moreover, that massive over-classification of government documents itself induces leaks and lack of respect for secrecy laws, overwhelms automation systems for dealing with classified documents (especially between agencies), and turns out to impose surprisingly strong negative costs upon counterterrorism as a whole. Finally, Posner offers a controversial proposal to take the FBI out of domestic intelligence as such and replace it with a new agency (modeled loosely on Britain MI5) devoted solely to domestic intelligence gathering with no law enforcement powers.

The FBI’s bureaucratic incentives, Posner says, cause it to focus on preparing, trying, and winning cases, a role which it plays effectively. But the “weakest link in our intelligence system” is its “domination by the Federal Bureau of Investigation”; the reasons are fundamentally that gathering intelligence necessary to prevent an attack is not a matter of carefully gathering and interpreting evidence one knows exists after the fact of a crime, it is willingness to go after needles in haystacks, in advance, and under uncertainty as to whether a plot actually exists. (US, p. 88) These functions are organizationally completely different, and the FBI has shown virtually no ability or interest in preventative activities except collateral to pursuing actual cases.

The final book, Countering Terrorism, looks to the broader picture of counterterrorism and domestic intelligence, examining institutions outside the formal intelligence apparatus, particularly courts, and considering the question today at the center of national policy debate, how to balance off intelligence gathering against civil liberties. As Posner notes, the debate over values of safety versus individual rights permeates nearly every contested counterterrorism issue – surveillance, detention and interrogation at Guantanamo, “black sites,” rendition, profiling, etc. Even in an instrumentalist argument, it cannot be avoided. But involving the federal judiciary by treating terrorism as simple criminality and making counterterrorism (once again) a function of federal criminal justice is, he says, mistaken. He rejects the view that regular criminal justice can address transnational terrorism cases; as a leading federal judge, he brings authority to the view that ordinary criminal justice neither prevents nor deters jihadist terror. He endorses, at least conceptually, moving from military detention to a civilian system of administrative detention and trial in a special “national security court,” with relaxed rules for procedure and evidence and specialist judges drawn from the regular federal judiciary.

Carefully argued and closely observant of US security bureaucracies, these three books merit study as policy tools for genuinely effective reform. Posner is skeptical that much will take place. His arguments will particularly not persuade, moreover, those who believe (the emerging view among US elites, in my estimation) that the terrorist threat is greatly overstated and the true threat is the governmental threat to civil liberties. For those holding such views, Posner’s calls for greater and more efficient resources directed to domestic intelligence and counterterrorism will likely fall on deaf ears.