washingtonpost.com
Intelligence Redo Is Harshly Judged
A Judge Critiques 9/11 Overhaul, and Finds It Top-Heavy
By Walter Pincus
Washington Post Staff Writer
U.S. Court of Appeals Judge Richard A. Posner sharply criticized the restructuring of U.S. intelligence agencies last week, telling CIA lawyers that the overhaul has done nothing to rectify flaws exposed by al-Qaeda's Sept. 11, 2001, attacks and that the changes "in the end . . . will amount to rather little."
Posner, who has written extensively on intelligence matters, questioned "the wisdom and consequences" of the intelligence overhaul passed by Congress in December 2004, which he said was based on "a deep misunderstanding of the limitations of national security intelligence."
That misunderstanding, Posner said, came from a naive belief that intelligence agencies can somehow be made infallible. "Failure in a democratic society," he said, "demands a response that promises, however improbably, to prevent future failures. [And] the preferred response is a reorganization, because it is at once dramatic and relatively cheap."
Posner made his remarks last Friday at an off-site conference of the CIA's office of general counsel, and a revised text was made available to The Washington Post.
CIA spokesman Paul Gimigliano said yesterday that the judge was invited because he is a well-known writer on intelligence issues and that "the CIA believes its officers should hear a range of informed opinion on issues affecting their work." Posner has a book being published next week, "Uncertain Shield: The U.S. Intelligence System in the Throes of Reform." His book "Preventing Surprise Attacks: Intelligence Reform in the Wake of 9/11" was published last spring.
In Posner's analysis, the director of national intelligence (DNI), created by Congress to be the president's top intelligence adviser, was given too much to do. DNI John D. Negroponte oversees the CIA and 15 other intelligence agencies, including those at the Pentagon. Negroponte's staff, which has grown to about 1,000, "has become a new bureaucracy layered on top of the intelligence community," Posner said.
In the process, he said, the DNI's office has absorbed "many of the responsibilities of the CIA and demoted the agency to little more than a spy service." He points out that Negroponte runs the National Counterterrorism Center, which used to be part of the CIA. The agency also prepared the President's Daily Brief, the most sensitive intelligence delivered to President Bush and his top national security team each morning, but that now is prepared by the DNI.
At the same time, the DNI has floundered in its task of coordinating the agencies within the intelligence community, according to Posner, in part because of "three distinct and largely incompatible intelligence cultures that are poorly balanced: military intelligence, civilian intelligence and criminal investigation intelligence."
The military culture, with its "up-and-out promotions system . . . discipline and strong mission orientation," views the CIA with "a degree of hostility and disdain, which the agency reciprocates," Posner said. In addition, CIA and Pentagon intelligence officers compete in strategic intelligence work, a situation aggravated by the fact that the military operates the spy satellite agencies, whose capabilities it often does not wish to share.
Meanwhile, the FBI culture, focused in the past on catching criminals, is having problems with intelligence gathering because, as Posner put it, "the aim is to prevent the crime, not punish the criminals." Counterterrorist intelligence, he said, requires "casting a very wide net, following up on clues, assembling bits of information, and often failing because there is as yet no crime."
Complicating these differences, he noted, was the "profound political imbalance" extant among the three intelligence cultures. The military "is immensely popular, immensely powerful politically" and "ambitious to expand its intelligence activities under the forceful leadership of Secretary [Donald H.] Rumsfeld and Under Secretary for Intelligence [Stephen A.] Cambone." Posner added that for "all these reasons" Pentagon intelligence is "out of the practical control of the DNI."
He said the FBI "is also immensely popular . . . and politically powerful . . . and stubbornly resistant to change." The CIA was left, Posner said, "in a situation of considerable vulnerability, as an unpopular agency and therefore a natural scapegoat" for intelligence failures of Sept. 11 and prewar Iraq.
Posner said that the DNI should have been given only a coordinating role in U.S. intelligence, and that the CIA director, now Porter J. Goss, should have remained the president's senior intelligence adviser. That approach would have eliminated the requirement that the DNI's office build its own bureaucracy of analysts, he said.