Earlier this week, Judge Richard Posner took to the pages of the Wall Street Journal to call for removing counterterrorism from the FBI 's mandate and creating a domestic spying agency to handle this task. Not only would this follow the example of many other nations, most notably Britain with its MI5 and MI6 agencies, but it also makes a ton of sense.
Today, former Justice Department official and current law professor John Yoo argues for doing the same thing.
Like a bloated corporate conglomerate, the FBI cannot execute its core missions with focus and flexibility. The FBI is rife with mismanagement. In recent years, it has lost weapons and laptop computers and has been unable to complete a $170-million computer system to manage cases.The FBI is good at investigating crimes after the fact, building cases for prosecution and charging criminal suspects. Conducting surveillance on suspected terrorists and preventing attacks before the fact requires an entirely different mindset.In the financial world, markets identify companies that have become too large and should split up. Investment groups take over such companies and either streamline them or spin off units into new, smaller companies.
Federal agencies have no such creative destruction mechanism. Instead, Washington's knee-jerk reaction to every crisis is to encrust already dysfunctional bureaucracies with more layers — witness the monstrously large Department of Homeland Security created after 9/11, or the post of director of national intelligence created after prewar intelligence on Iraq was found wanting.
It makes less and less sense for one agency, the FBI, to be grappling with Internet-savvy Al Qaeda terrorists while also dealing with drug trafficking, insider trading on Wall Street, copyright violations and industrial espionage.
The 9/11 commission in 2004 detailed the FBI's shortcomings in understanding, much less preventing, attacks by Al Qaeda. The next year, the Silberman-Robb commission, which analyzed pre-Iraq war intelligence failings, chronicled the FBI's ongoing difficulties in restructuring to fight terrorism.
But none of these calls for change have gone far enough. Almost all other democracies that face terrorist threats divide internal security from domestic law enforcement. Britain has MI5; France has its Direction de la Surveillance du Territoire; Israel has Shin Bet. We can learn from their experiences, dividing the FBI into a traditional law enforcement arm and a separate, independent counter-terrorism unit.
The FBI's current organizational culture is fundamentally incompatible with foreign intelligence and with war. For instance, the FBI rates and promotes agents based on the number of cases opened and solved. This makes sense if the bureau's sole mission is solving crimes that have already occurred — but not if the mission is gathering intelligence to prevent terrorist attacks.
