Against All Enemies (39 page)

Among the things that could have been done instead of, or even as part of or in addition to, the Department of Homeland Security was the creation of an agency that actually did only domestic security. Many in Washington were taken with the idea of creating in the United States what was known in Britain as MI5. Military Intelligence branch five during World War II was the group that so successfully hunted down Nazi sleepers in the United Kingdom. It later became civilian and is now known as the British Security Service. Many other successful democracies have something like the BSS. In several countries the security service has the task of finding terrorist sleeper cells and enemy spies. They do not, in some countries, have arrest powers and can only develop information to be given to police such as Scotland Yard or the Royal Canadian Mounted Police. While these security services have not been without problems, they have often been effective in rooting out particular terrorist groups and have not destroyed their democracies along the way.

Before and after September 11, the security service mission in the United States has belonged to the FBI. It was the FBI that sought out Nazi infiltrators in World War II and went after Communists during the McCarthy era and later. Because of J. Edgar Hoover's excesses and abuse of civil liberties, however, Congress restricted the FBI's domestic security role beginning in the 1970s. Nonetheless, the FBI did continue in its counterintelligence role looking for Soviet, then Russian, and Chinese agents. There were, unfortunately, several embarrassing cases in which spies were not uncovered (in FBI and CIA) for years. There were other bureaucratic black eyes in which spies were allowed to escape or people were accused of spying and no charges were ever filed. FBI also had responsibility for finding terrorists and often seemed unable to find al Qaeda in the U.S. prior to September 11 or even to find the right-wing domestic terrorist who bombed the Atlanta Olympics and several other targets.

Bob Mueller, a federal prosecutor, arrived as the new head of the FBI just days before September 11. He cannot be blamed for the failure of the Bureau to find al Qaeda or even to have a computer network prior to then. Much of that responsibility belongs to his predecessor. Since September 11, Mueller has tried to reorient the organization from post-crime investigation to prevention, from drugs and bank robbery to terrorism. In 2002, Dale Watson, the FBI's leading counterterrorism official, retired. Months later, Watson's replacement asked to be reassigned and a third person became the Executive Assistant Director for counterterrorism. Within two months, the next incumbent retired and the post was vacant again. Without steady top leadership in charge of counterterrorism, the Bureau has not been fully able to make the transition from post-crime investigation to prevention and analysis.

As Dale Watson discovered in 2000, it is hard to turn around a bureaucracy that has been heading in another direction for years. Watson's attempts prior to September 11 met with resistance even from the Attorney General. John Ashcroft had denied Watson's requests for more counterterrorism funds because counterterrorism was not one of the three priorities of the Ashcroft Justice Department.

Would creating an MI5, a British Security Service, make America more safe? It is tempting to say yes. A lean, modern, specialized organization of terrorism analysts and agents might be better able to attract “the best and the brightest,” people who would be creative at ferreting out terrorists but do not want to become gun-carrying federal policemen. The best counterterrorism agents from FBI, Customs, Immigration, Secret Service, Treasury's Bureau of Alcohol, Tobacco, and Firearms, and city police could be seconded and deputized in a new MI5. There would be none of the distractions that the FBI now has. Alternatively, if FBI keeps the terrorism mission and diminishes its focus on organized crime, drugs, and bank robberies, who will fill those roles? Already there are signs that the shift of FBI from those missions is making life easier for criminals.

The reality in America is that there are two big hurdles to the creation of a new, effective security service. The first is the right-left political alliance against security measures and the second is the FBI itself. The right-left political alliance is the phenomenon in which organizations like the National Rifle Association and the American Civil Liberties Union come together, usually with congressmen like Dick Armey, to express concern at efforts to strengthen the hand of domestic security officials. Any legislation proposing a security service will be met by a barrage of critics before they even read the bill. The FBI, which does not want to lose the domestic security mission to some new agency, will also work hard in the media and the Congress to scuttle any legislation. Were the legislation to pass, many FBI personnel will display passive-aggressive behavior rather than assist or cooperate with the security service.

These hurdles do not mean that the security service should not be pursued. If there is another major terrorist incident in this country, it most certainly will be. There is, however, little desire in the Congress now to create another new agency in light of what even Republican Members of Congress working on homeland security now admit is the demonstrable failure of the Department of Homeland Security. Thus, the best path at the present is to create the security service within the FBI, a service within a service, with a new spirit. For the security service to be effective in the FBI, however, it must have its own budget, computer network, regional offices (within FBI buildings), and personnel system. It must be able to hire and pay well civilian analysts, federal law enforcement agents from other agencies, security agents from other countries, and the best local police on counterterrorism. It must train large numbers of staff in key languages and in the philosophy, ideology, and culture of the likely terrorists. Finally, it must have routine access to all information available to the FBI and any government-held information.

To insure that the security service does not fall into the abuses of the J. Edgar Hoover era, there must be active oversight by a board of Americans all of whom inspire trust and confidence from the vast majority of our citizens. A Civil Liberties and Security Board must be more than just a civilian police complaint committee; it must actively shape the work of the security service to insure that it acts in accordance with what we believe in as Americans: civil rights and civil liberties.

John Ashcroft before September 11 had refused to increase counterterrorism funds and had not placed terrorism in the top-priority issues for the Justice Department. When I and one of my staff met with Ashcroft early in the Administration, we were left wondering if his discussion with us had been an act. My associate asked me on the drive back to the White House, “He can't really be that slow, can he? I mean, you can't get to be the Attorney General of the United States and be like that, right?”

I wasn't sure. “I don't know,” I said. “Maybe he's just cagey, but after all, he did lose a Senate reelection to a dead man.”

After the attacks and armed with the USA Patriot Act, Ashcroft so mismanaged the important perceptions component of the war on terrorism at home that he became a symbol to millions of Americans of someone attacking rather than protecting our civil liberties. The way in which Ashcroft has approached sensitive issues having to do with security and civil liberties has caused many Americans to trust their government even less.

There is an obvious tension between domestic security and civil liberties. We know that al Qaeda and similar groups have figured that out and use our system against us, applying for refugee status or political asylum, hiding in religious and charitable institutions, communicating on the Internet. To protect our civil liberties and defeat the terrorists, we need to be careful not to do things that create a popular backlash against security measures. As the widespread opposition to the unfortunately named Patriot Act proves, Attorney General Ashcroft has not managed that balancing act.

The most egregious example is the case of José Padilla. Whatever else he is, Padilla is apparently an American citizen. He was arrested not on a foreign combat field like the misguided John Lindh, but in Chicago. The Bush administration then denied him his rights because the Secretary of Defense, Donald Rumsfeld, determined (no doubt after long personal involvement in the review) that Padilla was an enemy. There are probably days when Donald Rumsfeld thinks lots of Americans in America are enemies (including, perhaps, on trying days for him, half the Pentagon press corps), but that should not give him the authority to lock them up without recourse. In the case of José Padilla, the Bush administration crossed a very important line that was created by the Founding Fathers to protect Americans from the possibility of some future government in this country violating their basic rights.

What Ashcroft and others did in the case of Padilla, and in proposing to amend the Patriot Act to allow for actions without judicial review, was to fundamentally shake the confidence of many Americans in the government's ability to safeguard our rights. At a time when we need greater citizen trust in the government so that we can adapt to the terrorist threat, Ashcroft is doing such things as engaging in a war of words with America's librarians over whether the FBI can scan reading records. The probability of the FBI ever needing to do that is so remote that this controversy should never have been allowed to develop. The Battle with the Librarians, the case of José Padilla, and the request for Patriot Act II make it very difficult to gain consensus to do the things that are needed to improve security, because trust in government's sensitivity to civil liberties is eroded.

Critics of all methods of improving domestic security must, however, also be cautious. If our domestic security organizations do not have the appropriate skills, staff, technology, and authorities they need, there may be more terrorist disasters in this country. The congressional and popular response to another round of major terrorist disasters in the U.S. could seriously threaten our civil liberties. Israel, Britain, France, Italy, and other democracies have demonstrated how willing citizens can be to yield up their rights in the face of a steady assault by terrorists. Thus, those of us who most cherish America's civil liberties should be in the forefront of advocacy for effective, appropriate security measures with meaningful oversight and review mechanisms, such as a Civil Liberties and Security Board.

Because the Department of Homeland Security was not given the role of a domestic security service nor allowed to do the congressionally mandated task of a “second opinion” on terrorism analysis, one would have thought that at least it would assist the nation's cities to become prepared to deal with a major terrorist attack, particularly one involving chemical, biological, or radioactive/nuclear weapons. Just as the Administration shortchanged the creation of the new Department, it sought to keep aid to police, fire, and other emergency responders as constrained as possible under the circumstances.

In 2000, I asked DOD and FEMA to determine what units would be needed to deal with a small nuclear weapon going off in a midsize U.S. city. Both agencies said I had to be more specific, so I chose Cincinnati because I had just been there. The kind of federal plan and units needed to help metropolitan Cincinnati officials deal with such a calamity simply did not exist. Nonetheless, many city officials assumed that there were federal units somewhere that would come to help them in an extreme emergency. They also noted that it is the first twenty-four hours in which the injured can be saved, and most local officials I spoke with doubted that the U.S. Cavalry would appear that fast. In fact, many of the kinds of federal units that city officials assume will help them will never show up. Large MASH-style military field hospitals are no longer in the force structure. Military Police are in short supply and stretched with overseas deployments. (Now, because of Iraq, many National Guard units are also overseas, taking with them mobilized police and fire personnel from cities and towns. The new Northern Command created to assist in homeland emergencies has not developed a single new field unit to meet domestic requirements; it merely has the ability to plan to call on units that already happen to exist and are still in the homeland.)

So when former Senator Warren Rudman asked me, following my departure from the White House, to join him in worrying about how we train and equip our first responders to deal with weapons of mass destruction attacks, I eagerly agreed to do so. Rudman has been dedicated to preparing the nation for dealing with terrorism both during his illustrious career in the Senate and subsequently as a private citizen. He and I disagreed about creating the Department of Homeland Security, but concurred in the need to train and equip the police, fire, emergency services, public health, and hospital staffs of our major cities. Rudman and I began to look at the state of first responders in 2003, working with a young Harvard lawyer and triathlete, Jamie Metzl, who had earlier done outstanding work for me as a White House Fellow. What we uncovered was disturbing. The program to train and equip first responders, which had started in the late 1990s, had not grown sufficiently even after the disasters of September 11. Our estimates indicate that only 25 percent of the needed funds were being requested by the Administration.

A survey of 168 cities showed that 90 percent of them had not received any significant additional federal assistance since the September 11 attacks. Emergency services organizations were understaffed and utilizing archaic equipment. Few had detailed or realistic plans to deal with a major terrorist attack using chemical, biological, or radiological devices. Emergency 911 systems, fire-police radio units, public health departments, emergency hospitals, and other first responders all had long lists of unmet requirements.