Posner Comments on CIA

[Roguish Lawyer]

Richard Posner, a libertarian judge on the 7th Circuit Court of Appeals and former law professor at the University of Chicago, is guest blogging on a blog site this week. I thought you guys might find of interest the following post of his. The blog site is at http://www.lessig.org/blog/.

A further thought, prompted in part by the release yesterday of the Schlesinger panel’s report of its investigation of the Abu Ghraib scandal.

Under the present system of intelligence, the CIA, although it is not the largest intelligence agency, is the leading agency, and its director is understood to be the government’s senior intelligence officer; he briefs the President, and is responsible for keeping the President and the other top officials informed. If a National Intelligence Director is layered on top of the CIA, its director, and the other agencies, as recommended by the 9/11 Commission, and if in addition, as suggested by Senator Roberts, the CIA is broken up into three parts, who will brief the President? The NID will be too busy supervising 18 agencies, which will mean worrying about spy-satellite launchings, creating “back doors� to encrypted Internet communications, monitoring the Coast Guard’s intelligence activities, etc., etc. So will the responsibility for keeping the President informed devolve on the head of one of the CIA fragments? But won’t he be too low-level an official to be able to marshal all the intelligence resources of government?

The basic problem with the recommendations is the attempt to solve managerial problems with structural solutions. This was recognized by the Schlesinger panel. Its report explains that the Abu Ghraib interrogation fiasco was the result of specific mistakes in planning, analysis, training, deployment, supervision, and personnel, made by specific individuals up and down the chain of command, who are named. The mistakes were not the product of a deficient structure. For the most part, this is likewise the case with respect to the failure to detect Al Qaeda’s 9/11 plot and respond to the attacks. Inadequate screening of visa applicants, deficiencies in building-evacuation plans, misunderstood rules regarding sharing of intelligence between criminal investigators and intelligence officers--the list of remediable management failures goes on and on, but the closest to a structural failure that I discern is the lodging of domestic terrorist surveillance in the FBI, which seems to have a deep-seated prosecutorial mindset that is inconsistent with effective preventive surveillance of potential terrorists.

Thoughts?