Judge Richard A. Posner ex cathedra?

Judge Richard A. Posner, the brilliant chief judge of the Seventh Court of Appeals in Chicago is a Renaissance man whose polymath skills, libertarian views and hopelessly eclectic personal passions have kept him from being considered for the Supreme Court His blog is must reading for the high-IQ geeks who believe the University of Chicago is the most fertile seedbed for growing American world-class intellects.

Today the esteemed jurist jumps into the fray over protecting national security in the Washington Post, a paper whose recent moderation reflects a somewhat mature equilibrium not yet achieved by the agenda-driven NYT.

Here are some of the choicest bits:

The goal of national security intelligence is to prevent a terrorist attack, not just punish the attacker after it occurs, and the information that enables the detection of an impending attack may be scattered around the world in tiny bits. A much wider, finer-meshed net must be cast than when investigating a specific crime.

This is obvious to most, but overlooked by many paranoid fantasists of the left who believe the black helicopters are on the way.

[Computerized sifting of data], far from invading privacy (a computer is not a sentient being), keeps most private data from being read by any intelligence officer.
The data that make the cut are those that contain clues to possible threats to national security. The only valid ground for forbidding human inspection of such data is fear that they might be used to blackmail or otherwise intimidate the administration's political enemies. That danger is more remote than at any previous period of U.S. history. Because of increased political partisanship, advances in communications technology and more numerous and competitive media, American government has become a sieve. No secrets concerning matters that would interest the public can be kept for long. And the public would be far more interested to learn that public officials were using private information about American citizens for base political ends than to learn that we have been rough with terrorist suspects -- a matter that was quickly exposed despite efforts at concealment.

This is eminently sensible. So what is the problem with massive intercepts if employing them were only for countering terrorism? The Wall between the FBI domestically and the CIA overseas.

Most other nations, such as Britain, Canada, France, Germany and Israel, many with longer histories of fighting terrorism than the United States, have a domestic intelligence agency that is separate from its national police force, its counterpart to the FBI. We do not. We also have no official with sole and comprehensive responsibility for domestic intelligence. It is no surprise that gaps in domestic intelligence are being filled by ad hoc initiatives.

Indeed, as Finding 12 of the REPORT OF THE JOINT INQUIRY INTO THE TERRORIST ATTACKS OF 9/11 by the House Permanent Select and Senate Select Intelligence Ctes. cites that the FBI is concerned that

the FISA process led to a diminished level of coverage of suspected Al-Qa’ida representatives in the United States. The effect of these difficulties was compounded by the perception that spread among FBI personnel at Headquarters and the field offices that the FISA process was lengthy and fraught with peril. [emphasis mine] [xvii]

But Judge Posner wonders if the FBI can keep its focus because

it is primarily a criminal investigation agency that has been struggling, so far with limited success, to transform itself. It is having trouble keeping its eye on the ball; an FBI official is quoted as having told the Senate that environmental and animal rights militants pose the biggest terrorist threats in the United States. If only that were so.

But the crux of the problem was outlined in Bill Arkin's article in yesterday’s WaPoblog where the domestic gaps Judge Posner describes in his piece today are delineated:

Certainly the most serious NSA failure was the Joint Inquiry's discovery that one of the future 9/11 hijackers "communicated with a known terrorist facility in the Middle East while he was living in the United States." Yet the intelligence community did not identify the domestic origin of those communications prior to 9/11. The reason, the Joint Inquiry found, was a "gap … between NSA’s coverage of foreign communications and the FBI’s coverage of domestic communications …neither agency focused on the importance of identifying and then ensuring coverage of communications between the United States and suspected terrorist-associated facilities abroad …"

Prior to 9/11, the Joint Inquiry report says, NSA "adopted a policy that avoided intercepting the communications between individuals in the United States and foreign countries." It was NSA policy "not to target terrorists in the United States, even though it could have obtained a Foreign Intelligence Surveillance Court order authorizing such collection."

NSA Director Lt. Gen. Michael Hayden (now the Deputy Director of National Intelligence) testified to the Joint Inquiry "that NSA did not want to be perceived as targeting individuals in the United States and believed that the FBI was instead responsible for conducting such surveillance."

Judge Posner is correct. We do need to either tear down the walls between the intelligence agencies or institute a new domestic intelligence agency such as the Europeans and Israelis have.