Guiding Lights: Intelligence Oversight and Control for the Challenge of Terrorism
Berman, Jerry, Flint, Lara, Criminal Justice Ethics
Winning the war on terrorism requires clear guidelines for data collection, use, and dissemination. The failure of our law enforcement and intelligence agencies to predict and prevent the attacks of September 11, 2001, was powerful evidence of the need for reform of U.S. counterterrorism efforts. Unfortunately, in the government's reaction to September 11 central elements of developing policy have been both dangerous to civil liberties and unlikely to improve national security. In particular, the tendency by legislators and executive branch officials to loosen limits on domestic spying and to weaken oversight mechanisms fundamentally undermines the efficacy of Constitutional checks and balances. The hijackers did not evade detection because of rules intended to guide the efforts of intelligence and law enforcement agencies and to prevent the chilling of activities protected by the First Amendment, although some of these rules have been misunderstood and misapplied in perverse ways. As we seek to improve intelligence collection, sharing, and analysis, it is necessary to set reasonable guidelines for the FBI, the CIA, and the new Department of Homeland Security and to enforce them though judicial and Congressional oversight. Such guidelines are as important to the prevention of terrorism as they are to the protection of civil liberties.
One response to September 11 has been the loosening of rules on information collection through electronic and other means. But casting a wider net and collecting massive volumes of information without direction is not justified by what we know about government activity before September 11. The joint investigation into September 11 by the Congressional intelligence committees identified no pre-9/11/01 legal barriers that needed to be lifted for the government to collect the information necessary to prevent terrorism. Nor did an independent task force commissioned by the Markle Foundation identify such a need. (1) Instead, a primary lesson drawn by Congressional and other inquiries into the September 11 intelligence failure is that the government did not make good use of the information it had already collected and failed to utilize information-sharing authorities at its disposal. Granting the government broader authority to collect vastly greater volumes of information without particularized suspicion could exacerbate this problem. Collecting more information will not catch terrorists if the information is irrelevant because it has been acquired without deliberate targeting.
The war on terrorism will be aided, not hampered, by respect for core Constitutional values: the First Amendment rights to assembly, speech, and the exercise of religion; due process, especially the right to confront the charges and accusers against oneself in a court open to public scrutiny; and privacy. By "privacy," we mean fair information principles that not only protect personal dignity, but also ensure the accuracy of information as the government collects and draws inferences from the ocean of data produced by the digital revolution.
The Relationship Between Law Enforcement and Intelligence
Our nation has traditionally drawn distinctions between law enforcement and foreign intelligence, and between agencies operating domestically and those focused overseas. Sometimes these distinctions have been seen as creating a "wall" that has prevented the useful sharing of information and other forms of collaboration among various agencies. One theme of the Patriot Act--officially entitled the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act--was to break down the "wall" between law enforcement and intelligence.
In fact, there was never just one wall. As the Congressional inquiry into September 11 found, there were really many walls, built between and within agencies over the past sixty years as a result of various legal, policy, institutional, and individual factors. …