an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
"Walls" between the FBI and CIA (and within the FBI)
I strongly recommend to everyone the new book by Lawrence Wright, The Looming Tower, about the creation of al-Qaeda and the move toward September 11. More than anything I've read so far, it leaves the reader believing that September 11 could almost easily have been prevented had the FBI and CIA not been engaged in almost literally incredible turf wars with each other (putting to one side presidential lassitude in face of the August briefing about the potential imminence of an al-Qaeda attack). Among other things, the CIA simply refused to notify the FBI that known members of al-Qaeda had entered the country. But one of the issues raised in the book goes beyond turf wars and is certainly relevant to many of the readers of Balkinization. To wit, various "walls" were thought to be legally necessary, both with regard to CIA-FBI cooperation and, within the FBI itself, between the "intelligence" and "criminal" divisions. After all (among other things), evidence seized as part of "intelligence work" might not be admissible if there were no probable cause to engage in the search. Wright argues that these walls were basically self-created and based on misreadings of relevant law. I do not know enough to have anything resembling an informed view.
So let me pose some of the questions suggested by Wright's analysis: 1) How does "law" actually get created? I.e., much of what we call "law" is the creation of bureaucratic agencies that generate internal norms of operation. "Law in action," we well know, looks quite different from what a detached lawyer would view as "law on the books." Vanderbilt Dean Edward Rubin, in an important book Beyond Camelot, emphasizes the radical differences between "law" in the modern administrative state and models developed eariler. 2) Assuming, for the moment, that the various bureaucrats were accurate in their reading of the law, do we applaud the scrupulousness with which various persons insisted on staying within legal norms? (The most notorious instance, of course, is the refusal by the FBI to seek a warrant to "search" Moussauri's computer because of what was thought to be lack of probable cause. Do those of us who are civil libertarians applaud such a cautious reading or condemn it?)
A third question, incidentally, is the role of the Reno Justice Department, and Clinton Administration more broadly, in functionally encouraging these disastrous bureaucratic developments. It seems quite clear that both Louis Freeh and George Tenet, both of them Clinton appointees, were disasters as heads of their respective agencies, both of which had people in them--John O'Neal in the FBI and Michael Scheuer in the CIA--who were well aware of al-Qaeda and the threat it posed. It's easy enough for many of us to beat up on George Bush. But many of the basic mistakes took place during the Clinton Administration. Incidentally, one of the fascinating differences between O'Neal, who died on Sept. 11, and Scheuer,is that O'Neal was a "legalist" through and through, devoted to building criminal cases that would stand up in court, whereas Scheuer wanted to kill bin Laden regardless of the amount of "collateral damage" that might be generated in deaths of civilians or, in one instance, Arab princes gathered with bin Laden in Afghanistan. Had Scheuer prevailed, we might well have been spared Sept. 11 BUT, since we wouldn't in fact have had any real way of knowing that, we could easily have blamed him for other kinds of disastrous consequences attached to the "collateral damage." (Dare I suggest that some of the same questions are raised by what is going on right now in Lebanon?)
Jack and I have been touting the onrushing development of the "national surveillance state." Wright's book demonstrates the stunning failures of almost basic surveillance and challenges all of us, regardless of what we think are our "ordinary politics," to figure out how much surveillance we want and how government should be organized in order to maximize effective surveillance. Posted
by Sandy Levinson [link]
Last month The New Yorker ran an article by Wright. I don’t think the article went online, but here is a link to their interview with him about the article, with a few broader reach questions as well.
I don’t have the depth to respond to your questions, although I will be interested to see what you get. I will say that for 2) I am not sure how fair it is to characterize the Moussaui warrant impasse as an institutional problem (FBI) or even a process (FISA) problem (there was no request and it seems unlikely that, if the information supplied by the field agent was included, the request would have been denied) as opposed to a desk (individual) problem. I do not understand, wall or not, the failure of the desk to respond to the field in the Moussaoui example and have a hard time understanding, even with a due respect and regard for probable cause, why the application was not made Fwiw.
I have reservations about the intertwining of intelligence gathering efforts and criminal prosecution efforts that proceed under different standards and in different executive branch responsiblity cultures, but I also have concerns over inability or unwillingness to share critical information between agencies. I don’t mean this as an info dump, but the best discussion and analysis that I have read so far comes from the statements given by David Kris to the Judiciary Committees, preceding the appeal of the In Re Sealed Case in 2002 and later, in early 2005 in connection with the rework of the Patriot Act.
Here, http://judiciary.senate.gov/testimony.cfm?id=398&wit_id=944 and here (pdf), http://judiciary.house.gov/media/pdfs/kris042805.pdf
I’m skeptical of a lot of the arguments that have been tendered, but his analysis sold me more than anything else that I have seen. There is also some interesting information and context in the letters and attachments from Daniel Bryant, AsstAG, to Leahy. (pdf) http://www.fas.org/irp/agency/doj/fisa/doj-fisa-patriot-122302.pdf
Unrelated observation – it is just a sad thing to compare the analysis from Kris’ statements, or that went out under Byrant’s signatures, with the more recent products that have come out under Moschella’s signature. I’m waiting for the devolution to citation of Nanner. v. Nanner and Yoo v. Cant Makeme as authority.
Scheuer wanted to kill bin Laden regardless of the amount of "collateral damage"
Ah, so we have gone down this route here at Balkanization, hmm? What is this 'collateral damage' we speak of? Oh, so sorry ... apparently various innocent civilians. Sort of like the kids when McVeigh blew up the federal building.
As to the "wall," perhaps it would be tad be useful to clarify why such 'legalisms' were in place. Decades of abuse respecting use of intelligence and criminal information against various groups. The pendulum might have swung too far in one direction, but darn if it is useful to understand fully why.
I wonder what would have happened if federal officials were on guard, as Clinton's people warned as they left office, that Al Qaida was the biggest threat, including domestically.
Perhaps, some things might have been taken more seriously. Who knows. [It generally takes time for an administration to settle in, but the structure was in place and there was that memo.] Worth pointing out though.
As to preventing the attacks. I don't know if such low tech terrorism would have not existed if a particular mastermind (Bin Ladin) was killed. Would no one take his place? Is the organization that centralized? etc.
One might also note that it is not like Republicans in Congress was willing to give Clinton must breadth to risk 'collateral damage' either. I'm all for sharing blame ... it was an overall mentality in place. Thus, conservative Republicans opposed the expanded anti-terrorism bill in the 1990s as a threat to civil liberty, but Clinton signed it into law all the same.
I have to admit Brett that in this case you were the victim of a little collateral anger. I don't care for Saudi princes any more than I do for Bin Laden, but I'm always annoyed by people who make comparisons where they don't apply, especially about the current situation in the mideast. I doubt you would agree with me, and I do not want to get in a discussion. Read the links I posted if you want and we'll leave it at that.