"Walls" between the FBI and CIA (and within the FBI)

Sandy Levinson

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 11:52 AM by Sandy Levinson [link]