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do we need an mi5?
Since Sept. 11, President Bush has told the FBI that its primary focus needs to be protecting the U.S. homeland. However, critics have argued that the bureau sees this mission through a law enforcement lens -- catching and prosecuting criminals -- rather than through a counterintelligence lens, or trying to develop the intelligence necessary to prevent terrorist acts. The FBI responds that the two are not mutually exclusive -- that law enforcement investigations provide a great deal of intelligence that can be used to combat terrorism.

Some outside analysts, most notably the Gilmore Commission, set up in 1999 to assess America's ability to respond to terrorist incidents, have argued that the FBI's two missions should be separated. They say what the U.S. needs is a new domestic intelligence agency, set up along the lines of Great Britain's covert MI5, to collect, assess and disseminate domestic intelligence. FRONTLINE asked its experts whether they believe the FBI is up to the task or whether an MI5-style agency is necessary. All were opposed to the creation of a new domestic intelligence agency, but for different reasons.

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David Cole
Professor, Georgetown School of Law; civil liberties expert
read the full interview

There are many in the intelligence community, in Congress, who are saying the FBI is not up to this job of counterterrorism; [that] what we need is a domestic intelligence agency, stand-alone agency, to deal with terrorism and espionage. Do you agree?

My view is that it is important to have domestic intelligence and domestic information gathering focused on crime. The FBI is focused on crime. Some people say that's a shortcoming of the FBI. I think it's a critical limitation on the power to spy, the power to surveil, because if they're not focused on crime, what are they focused on?

If you create a domestic intelligence entity which is not in the business of looking for criminal activity, it's very likely that they're going to be in the business of surveilling political dissent.

The director of the FBI and FBI officials we've interviewed say, "We understand and respect the Constitution of the United States. That's why we should be doing this job."

One hopes that they understand and respect the Constitution of the United States. But we've never rested our rights on the good faith of government officials. We have insisted that they be bound by constitutional principles, that they be held accountable in courts, that there is a public process, an adversarial process that assures that if they take action that goes over the line, they'll be held accountable. The problem with secret surveillance, the problem with one-sided procedures is that you don't have that kind of critical public check on the prosecutorial power.

Am I hearing you say that you would agree with Director Mueller and his colleagues that they should not lose jurisdiction over domestic intelligence operations?

Yes. What I'm saying is that I think there's a real danger in creating an intelligence agency that has a kind of roving warrant to conduct surveillance over individuals without a focus on criminal activity. If what we're concerned about is terrorism, it's a crime. It seems to me that if the FBI is charged with investigating crime and the FBI focuses on people who may be engaged in crime, may be conspiring to engage in crime, might have evidence of criminal activity -- all of which terrorism fits into -- that they ought to be able to do that job.

I'm not convinced that another separate agency would do a better job. I am concerned that a separate agency -- if it were sort of severed from the focus on crime -- would quickly sort of slip into a focus on politics, on religion, on ideology, just as J. Edgar Hoover did with the FBI.

In fact, an intelligence official who we interviewed has said the FBI used to be very good at domestic intelligence gathering. It put the Communist Party in the United States out of business.


That what you really want to know when you're dealing with a threat, a conspiracy like Al Qaeda, is you want to know what they're planning to do. That is not a law enforcement function; that is an intelligence function.

I don't buy that. We want to know what the Mafia is planning to do. So we get informants and we get inside and we find out what they're planning to do, and we bring them to justice. We wanted to know what Sheik Omar Abdel Rahman was planning to do. We got an informant, got inside there, and ended up bringing to justice the sheik and a number of other people for allegedly planning to conspire to bomb the tunnels and bridges around Manhattan. That was criminal law enforcement activity focused on crime.

What we don't want, it seems to me, is either the FBI or some other entity going into a mosque just because it's a mosque. Or conducting surveillance of this organization because it's a left-wing organization and it's criticized John Ashcroft. Or investigating this organization because it appears to have some radical elements who believe strongly in environmental justice.

It seems a far cry from terrorism to that. But it seemed a far cry from communism to that, and we saw when these kinds of restraints weren't in place in the McCarthy era and the civil rights era that followed it, the government slid from a focus on criminal conspiracies to a focus on political ideology and information gathering on wholly lawful, nonviolent political activity. I don't think we want our government doing that.

The thing that protects us from that is the Fourth Amendment, the requirement of probable cause of criminal activity and the focus of crime. So what concerns is that a domestic intelligence agency, if the idea is to sever it from the FBI because the FBI is too focused on crime -- it's a dangerous idea, because the focus on crime is the protection that we have. ...

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dale watson
FBI assistant director for counterterrorism, 1999-2002
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The responses that I have been getting -- and some people have written this, like the Gilmore Commission -- that the FBI, by its very nature, is a reactive organization, a prosecuting organization, they would say. You are not a domestic intelligence organization. You are [not] going to prevent [attacks] from happening. That's not [the FBI's] mindset.

I would have said that prior to the 1998 East Africa bombing. From 1998 on, it was very clear to me ... the right response was to be proactive. To be proactive, you have to change people's way of thinking. You have to say, "Well, maybe we are not going to investigate methamphetamine cases anymore. Maybe we should let DEA run those cases. Maybe we should take the people working drugs, and put them into counterterrorism." So, in fact, we could interview all the immigrants, if we needed to do that, or, in fact, be able to go to all the flight schools, or all the bus driving schools in the United States. ...

What people are saying is, the culture of the FBI, the history of the FBI, the fact that it's going to court makes it impossible for them to become an effective domestic intelligence organization to eliminate this terrorist threat.

I have heard this argument. I don't necessarily agree with that. I think it will take some hard work. It will take a new process of thinking. Not "new," but a continuation of thinking, of what reactive means, what proactive means, and how do you build off of intelligence cases. It talks about the quality and the background of individuals you do hire to do that work.

You said, "I don't necessarily agree?"

Yes. That the FBI is incapable of doing this, of shifting into proactive.

But you are skeptical about whether the FBI can do it.

I am not skeptical. I think it will take a period of time. I think it has to be driven from the top down. But also, at the bottom level, you need to reinforce why this is important, and why these cases are difficult to do something with. Realize that they are not the easy criminal investigative matters. ... You might work for years on the intelligence side and not have a prosecution. But yet, have you done something to try to prevent the next act of terrorists in the United States? Absolutely.

Should there be an MI5 type organization created, based on your experience, that just goes after the problem alone and doesn't worry about prosecution?

The answer is no, and the reasons behind that are many. First of all, there was so much talk after 9/11 about people not talking, and the FBI and the CIA are not sharing anything. If you come out and create another agency, that the problems between them doing intelligence work, and then it crosses over into a prosecutable case -- they have to share that information. So, in fact, you create another soapbox. ... An organization over here, security organization, and law enforcement over here.

The other thing most people don't realize is that criminal prosecutions are in fact the prevention, and provide a tremendous amount of intelligence. So you can't fragment that. Bringing people back up to the East Africa bombings -- certainly, it enlightened us about Al Qaeda. ... So it's a blending of roles, and it's a unique thing in this country, to doing criminal and intelligence.

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tom ridge
Secretary of Homeland Security
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Some of the veteran intelligence people that we've talked to, some people and the Gilmore Commission have recommended that we create a separate counterterrorism organization, a MI5, if you will, that's not connected to the law enforcement community, that wouldn't even be connected to you guys at Homeland Security. Your reaction?

The president has basically made the decision to turn the primary focus of the FBI to counterterrorism. I don't think you're going to see an MI5-like agency in this country for a variety of reasons -- the most important of which is that the president believes that the FBI, under the leadership of Bob Mueller, can make that transition from a criminal investigative unit -- and they're still obviously going to be doing some of that -- but into the chief domestic counterterrorism group.

But are they doing that in sort of de facto? That is, creating a domestic counterintelligence operation in part by having the TTIC [Terrorist Threat Integration Center] as part of Homeland Security, where you bring together the CIA's counterterrorism people and the FBI's people, and, in a sense, de facto creating a domestic spy organization, even though technically we're not calling it that?

Well, no. First of all, the Threat Integration Center is not a collection agency. The only thing the Threat Integration Center is empowered to do is take a look at all the information out there from all the intelligence gathering sources. Again, we're mindful of the limitations, gathering information on American citizens. So, again, number one, the TTIC is the single venue where a group of analysts from the CIA, FBI, Department of Defense, NSA, Homeland Security -- their sole exclusive function is to give the president and decision makers a comprehensi[ve] threat picture. If there's a need for additional information, they can charge the respective agency to go back and get it for them.

They're also charged with giving the Department of Homeland Security the benefit of their analysis. We are a consumer as it relates to hardening America. You know, protecting infrastructure.

So you've got this group of analysts, [who] obviously, in part, support the work of the FBI's counterterrorism unit. The FBI has their analysts; we have ours. Everybody still has their own analysts. And the FBI can go out and secure information, as long as it's consistent with the Constitutional laws of this country. But the Threat Integration Center is really an effort to aggregate and analyze the information, and then share it with the other agencies in government.

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Robert mueller
FBI Director
read the full interview

There are people in the intelligence community who just simply say the FBI is not up to this job; [that] you have a law enforcement, case-oriented view of things.

I disagree with that. I think what we have moved to do is increase our analytical ability, to take the information we have had from our various offices where, in the past, that information has ... not gotten into headquarters, and we have not had the capability of analyzing that information, and then disseminating that information. I think we've turned that around.

Secondly, not only have we put additional agents on counterterrorism, but we've also built up our analytical structure so that we're better positioned to analyze the information we have.

Lastly, in order to do it and do it effectively, you need information technology. We're putting in place, and have put in place, those pieces that will enable us to do a better job than we have in the past, of not only gathering the information -- which I think we do exceptionally well -- but centralizing that information, analyzing that information and disseminating that information.

So is it fair to say you're recreating the FBI's ability to do domestic intelligence operations?

No. What I am doing is setting up in the FBI a core analytical function, within the bureau, to take the information we've had for years -- which we gather day in and day out in our various field offices and put it in databases -- so it can be available to analysts to analyze, be predictive in terms of the next attacks, and then disseminated to others.

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john macgaffin
Former CIA associate deputy director for operations; former senior adviser to FBI
read the full interview

... When you are looking at something like a terrorist organization here in the United States, what's the difference in perspective between law enforcement and intelligence?

Let's remove the notion of "here in the United States," because that complicates it. But let's start, first, with the notion of the difference between law enforcement and intelligence. This is absolutely crucial to understanding where we are now, the trouble we are in now as a nation trying to cope with threats -- terrorism and others -- by people who would do us harm and who secretly [wish] to do us harm, and understanding this difference and which road to go down.

It's a way to think of these as two different roads. Let's talk about the law enforcement road and then the intelligence road. I use the analogy of roads, because roads lead to destinations. They can lead to the same destination, but I would maintain that part of the problem is these two roads lead to somewhat different destinations.

The law enforcement road. Law enforcement is intended to apprehend and bring to justice people who have broken the law or who are about to break the law. The latter would be sort of preemptive. We can stop them. We can catch them before they get on the plane and fly into the World Trade Center. And we have done it, OK? So it is entirely based relative to law, statute, what's legal, and what's illegal. ... That road leads to prosecution; if someone is guilty, prison, whatever, conviction. If they are not [guilty] and we have done it properly, if all the rules had been followed, it leads to people being exonerated and not pursued further, whatever the case may be. That's the law enforcement road. That's the definition relative to U.S. law statute.

Intelligence doesn't have the destination that's relative to law or not-law. It has no such relationship. In the words of a biographer of one of the great directors of Central Intelligence, Richard Helms, the biographer, a guy named Powers, describes the difference between law enforcement and intelligence as "The mission of intelligence is to determine where the danger lies." That's very different from someone breaking the law.

Go back to our example about 9/11. But the goal of intelligence if it were properly done, relative to 9/11 -- and we failed -- would have been to understand where the danger lies. Who around this world hated America so much that they were willing to, in this case, kill 19 of their own in the process of killing 3,000 of us? Where did the danger lie? How were they going on?

Understand the organization. Understand it by getting in inside it, which are the techniques of intelligence ... to get inside it secretly, so they don't know you are there, so you can gauge how serious the danger to our core interests are. ...

What are those things a policymaker absolutely needs to know that the policymaker can't get any other way? You are not going to necessarily get that, unless you are very lucky, through a law enforcement chain. I would submit the only way you are likely to get it is to penetrate those organizations. Get into their secret councils. Find out what they intend to do to us.

Look, for the last 10 years -- the previous decade, before 9/11 -- the secret organization, operated in our country abroad, in Afghanistan, for that entire period, planning carefully and implementing the attacks of 9/11. Things were done there that were knowable had you had a spy, someone inside their councils, who would sit and know what they were doing.

They were not knowable if you go down the law enforcement road, because the law enforcement road is looking for people who have broken or are about to break the law. None of these guys, as they were in the shadow of a mosque in Hamburg, in the mountains of Afghanistan or in Des Moines, Iowa, or wherever they took flying lessons, where they cased buildings, took [a look at] airlines -- they weren't breaking the law. There is no way that law enforcement, unless it's very lucky, is going to get the tumble to these people. ...

They don't have the resources?

They have not been given resources sufficient to the part of the organization, the FBI, charged to do counterterrorism and counterintelligence. They are really related, and it's a very complicated issue, but worth another discussion. But the people, given that, were not given the resources, the respect, the assistance to get their job done.

Eighty percent of the FBI is populated by people who do very important, very effective criminal work. Maybe they do white-collar crime, and they do civil rights. They do organized crime. They do a marvelous, marvelous job of that. Only 20 percent of them are involved in national security work and in the business of trying to stop terrorism in the United States. So first of all, not enough resources in terms of the total throwaway. Not enough resources, and not enough respect, in terms of career progression, and all those things.

The irony is that there was a period, when the bureau did this, law enforcement did this very well. But the most obvious examples, of the Communist Party of the United States of America, when -- for those who are old enough to remember Herb Philbrick, there was the movie about Herb Philbrick, "A Spy for the FBI." There are more Herb Philbricks at [a] Communist Party of the United States meeting than there were real Communists.

"I Led Three Lives."

"I Led Three Lives." That's right. Exactly. You are obviously old enough to remember. They did that. They did that very well, and what was that about? That was about determining where the danger lies. That wasn't about putting someone in jail because they were breaking the law. It could have come to that, and putting people in jail is good.

Let the record show, bad guys should go to jail. Bad terrorists should go to jail. Even good terrorists ought to go to jail. That's what that was all about; they did that. They have not done it since then. There are reasons that have to do with the 1970s, with the abuses of the intelligence community, with the regulations that were put in place. But essentially the FBI can do it, could do it, ought to do it. I am in favor, not of the solutions to form a new--


--a new service like the British, and the MI5 argument is, or--

Or the Gilmore Commission has recommended a national domestic counterterrorist agency, sort of like the status of the EPA, that stands separate from the FBI and the CIA.

That's what we really need -- yet another element of government bureaucracy! I think that misses the point, and this gets really complicated. This is not just terrorism. It's terrorism and counterintelligence, and it's that universal things that would do us significant harm that need to be addressed. The bureau has done it in the past. It does not do it now, as well, because it approaches it in a law enforcement, criminal conviction mentality. That's unfortunate, because we're taking a chance that we're not going down the road that's likely to get us inside the innermost councils of those who wish us harm. If we're prepared to take that chance, that's fine. I think the bureau could do it if we make some really major changes. ...

The FBI officials we've spoken with from Buffalo to Washington say the problem with what you're saying, and the reason the FBI should be involved, is our agents are trained to protect the Constitution in the United States. People like you are oriented overseas, where they don't have to abide by the Constitution, where you can do more or less whatever you want.

I couldn't agree more. I'm not advocating that the FBI not do this. I think the only solution is for the FBI to do this. This is America. We don't need a British system. We don't need MI5. We need an American system that will protect the Constitution and will know the rights of American citizens -- and not just American citizens, but American persons. I'm not, and wouldn't for a moment think that the CIA should do those things. It would be a terrible idea within the United States.

But my point is that the FBI is going down the law enforcement road. We have to have an FBI that is capable, as it was once in the past, has the resources and the respect needed internally to go down the intelligence road; to be able to recruit the guy in Buffalo, to have that kind of background, and, in the process, make absolutely sure that the rights of Americans are in no way infringed. But until you start going down that road, you're going to go down the law enforcement road and end up at the law enforcement destination. Right people, wrong approach.

The people that are now running counterterrorism at the FBI are wonderful officers. You undoubtedly talked to them for this program. They're wonderful people, but most of them, I think all of them, come out of a law enforcement background. They're expert in organized crime, civil rights, all the things that we want our wonderful FBI to do. They've got to find a way to take people who do counterterrorism, counterintelligence, the whole thing, and understand how you do that effectively while protecting the rights of U.S. citizens.

I'm not suggesting the bureau shouldn't do it. I'm saying they've got to change to do it, and they're not on that road. ...

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posted october 16, 2003

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