Intelligence: June 14, 2002


: Removing The FBI's Counterterrorism Mission- The FBI is now in the fight of its life. Retired Lt. General William E. Odom, former director of the National Security Agency and former U.S. Army Assistant Chief of Staff for Intelligence, advocated removal of the FBI's counterintelligence and counterterrorism missions in a major article in the June 12, 2002, Wall Street Journal. This followed two major op-ed pieces on domestic security reorganization in the June 10 issue, whose lead editorial on a different subject, by its senior editor, started with the following statement:

"When the government fails in its most basic functions--say, protecting our citizens from foreign enemies--no one at the FBI or CIA loses his job, ..."

General Odom slammed the FBI's counterintelligence record and explained how the institutional culture required for law enforcement is incompatible with that necessary for counter-intelligence. He is the first major intelligence official to publicly advocate such a drastic change in the FBI. There will probably be others and, while General Odom refrained from mentioning the FBI's glaring management deficiencies, Congress is not likely to be so charitable now that such an intelligence heavyweight has advocated the obvious solution -restricting the FBI to domestic law enforcement. That would allow Congress to address FBI management issues without impairing national security.

General Odom also noted one of the two major problems with the presently proposed form of the new Homeland Security Department the absence of a counterintelligence/counterterrorism organization with operational (i.e., investigative & enforcement) authority as opposed to only an analytical mission. His proposed solution is to create an entirely new service for that mission, and place it under the Central Intelligence Agency. The latter has problems. Congress has been rightly concerned that national security operational needs might impinge on the domestic freedoms which make us Americans, and has always required that domestic counterintelligence be separated from foreign intelligence. Past abuses by the CIA and FBI proved the wisdom of this. A new counterintelligence service must remain separate from the CIA, and its obvious home is as the investigative bureau of the Homeland Security Department just as the FBI is the investigative bureau of the Justice Department.

Additionally the same 9/11 security failures whose public revelation has lead to General Odom's proposals have shown that the FBI has many outstanding field personnel doing counterterrorism. It might be desirable to simply transfer the FBI's counterintelligence group almost intact as the nucleus of a new, separate, counterintelligence service. Care should be taken to transfer as few as possible of the FBI headquarters staff to the new service, to avoid cloning the FBI's dysfunctional management. 

The FBI won't be the same afterwards, and that will be a good thing. We need a competent federal law enforcement agency and they're not it. We need a competent counterintelligence service still more and they're not that either. But we can get both by splitting the FBI's counterintelligence people, as individuals or as an intact group, off from its law enforcement branches. Then Congress and maybe, just maybe, the President, will force the necessary management changes upon an FBI lacking its national security cover.

This leaves, however, the unspeakable elephant of immigrant alien surveillance and control sitting in Homeland Security's waiting room. With rare exceptions, citizens aren't our foreign terrorism threat. Resident aliens - legal and illegal - are the threat and no one, not even General Odom, has addressed this defect in the Homeland Security Department's organization.

The Supreme Court long ago ruled that resident aliens are entitled to the same constitutional protections as citizens. This was done for expedient reasons - letting police and prosecutors deny constitutional protections to aliens imperiled the same protections for citizens. But the "Constitution is not a suicide pact." The lives of citizens are now directly threatened by resident aliens, while the constitutional rights of citizens are imperiled by security measures created to protect against the physical threats. The law must change to reflect these developments. 

The new Department of Homeland Security would be more effective, without harming citizen rights, if aliens lack full constitutional protection, for offenses committable only by aliens, which it has exclusive jurisdiction to prosecute. State and local police, the FBI, and state and Justice Department prosecutors, would have to give aliens full constitutional rights during investigation and prosecution of ordinary offenses, as citizens can be charged with those too. But Homeland Security law enforcement officers and prosecutors wouldn't have to do so for offenses under laws which apply only to aliens. -- Thomas M. Holsinger




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