of the American Society for Information Science and Technology     Vol. 28, No. 3      February / March 2002

Search

Go to
Bulletin Index

bookstore2Go to the ASIST Bookstore

 

Copies

Information and the War Against Terrorism, Part II:

Were American Intelligence and Law Enforcement Effectively Positioned to Protect the Public?

by Lee S. Strickland

Lee S. Strickland is a visiting professor in the College of Library and Information Studies at the University of Maryland. He can be reached by e-mail at lee.karen.strickland@worldnet.att.net .

In the first article of this series (Bulletin of the American Society for Information Science and Technology, December/January 2002) we considered information and information network theory as the primary offensive war tools in the war against terrorism – a significant change from historical threats and responses. Here we begin our examination of the information-related implications of the war that are of critical import to readers as both information professionals and citizens of a democratic society. Every war has profound effects on the society. Just as the Cold War resulted in dramatic changes to our technology base, the functions of our government and our society, this war will likewise bring changes that may be characterized within two broad categories – governance and commerce. This installment examines a key governance issue – the legal response to terrorism. It presents the critical question as to whether American intelligence and law enforcement, with their information collection, exploitation and use responsibilities, are positioned to protect the public in an effective manner.

Future installments will consider legal and business changes that are, or may be, occasioned by the terrorist threat. Specifically, Part III of this series (in this issue of the Bulletin) and Part IV will survey the newly enacted information-related laws and security processes and their impact on our constitutional expectations. We will conclude with Part V, which will survey the impact on business operations, from the critical need for knowledge redundancy planning to the impetus for electronic services in both government and industry.

In following these issues here and in our daily lives, I suggest that we must remain mindful of our primary national objective – the final destruction of international terrorism and state support of terrorism – not a tactical victory over one discredited sect of cultural and religious zealots. Security for the United States will only come through a comprehensive solution that brings all people to the realization that peace and economic well-being are possible. So long as want and misery rule the lives of millions in the world, they will provide breeding grounds for terrorism. This is the ultimate challenge for American leadership.

Information and the Legal Response

Information acquisition and exploitation are at the core of every intelligence and law enforcement operation as is certainly evidenced in the terrorist investigation now being conducted. We have seen the role that information and network theory is playing on the intelligence front and similarly with respect to law enforcement. E-mail is a major focus, and the Federal Bureau of Investigation (FBI) has sought numerous court orders requiring Microsoft, AOL and Earthlink to produce e-mail from customer accounts, many specifying any mail that contains key words such as "pilot" in the text. And service providers are not the only targets. The FBI believes that some of the terrorists may have used public library computers, and warrants have been served seeking electronic and paper records of transactions made by named individuals. And, of course, personal computers have been targets where the FBI has sought warrants to examine the hard drives on computers owned by various suspects.

But are these after-the-fact actions indicative of systemic failings? Within hours of the horrific events of September 11, accusations of "intelligence failures" echoed from the media and our elected leadership. If this claim is correct, it suggests the existence of problems in government requiring dramatic efforts at remediation or reformation. Or is it a convenient sound bite that demonstrates a lack of understanding of the intelligence process?

To answer this critical governance question we must understand the business of intelligence as well as the appropriate performance expectations. Simply stated, intelligence bears a very strong resemblance to other information-based businesses such as a major news organization or research centers in the academic community. Intelligence is perhaps the ultimate information or knowledge-based business, but all share the same primary activities.

    1. All collect information through overt and covert means, analyze that information to decide what it means (that is, turn information into "intelligence" or "news" through a validation process) and disseminate the resulting product (that is, inform those who need to know what "they need to know.") Only the ultimate mission of intelligence is different in terms of customer. The mission of government intelligence is to inform the President and policy makers about strategic and tactical issues and to provide warning as necessary.

    2. All rely increasingly on technology to enable the mission – from collection of information to analysis and dissemination where one of the most notable impacts of modern information technology has been the ability to analyze vast quantities of data and put resulting analysis – up-to-the-minute intelligence – in the hands of users.

    3. Most important, all are constrained by the inherent limitations of information businesses – the inability to collect the totality of the available and needed information as well as the inability to interpret the certain meaning from incomplete or deceptive data. Stated differently, one cannot collect all available factual data and one cannot be assured that validation (for instance, asking questions with known answers, tasking others or analyzing for logical inconsistencies) will remove all deceptive and inaccurate information. As a result, the intelligence process, whether in government or business, cannot magically move from ambiguity to certainty.

Moreover, the criticism of intelligence almost without exception fails to distinguish between the two types of problems that are presented. The first type is a puzzle – a question that may be answerable if the necessary factual data is collected. An example would be the names of the members of a given terrorist cell. The second type is a mystery – a question that is not answerable because it is beyond our ability to understand and predict since it depends on so many unknowns or imponderables. At most, intelligence may collect facts that inform us about the mystery, but will not and cannot provide an answer. An example of a mystery would be the next target for al-Qaeda. In sum, the intelligence process – collection, collation, validation and analysis – is rigorous but has the limitations we have detailed whether the information analyst is a stock broker, a librarian, a corporate information officer or a government intelligence official.

As a note, a related political claim is that there is a serious lack of human intelligence resources because of legal restrictions imposed by a former CIA Director in 1995 to respond to criticisms that the CIA had utilized foreign nationals with significant criminal and human rights abuse backgrounds. There is no doubt that the United States could do better here in general (for instance, recruit more Arab-Americans into law enforcement and intelligence who in turn might have greater success against secretive and insular establishments such as the bin Laden organization). But the factual response is that the restrictions have never resulted in the denial of any proposed or potential recruitment. The requirement for legal and political oversight of field operations is, in fact, consistent with our system of government.

But Problems Do Exist

The foregoing discussion is not to suggest that there are not problems and areas for improvement. The United States is hampered in our information acquisition and exploitation work by significant resource, legal and bureaucratic impediments. We shall consider each in turn and then discuss the quintessential example of the problem.

Resource impediments. The resource impediments in the FBI, the agency responsible for domestic counter-terrorism, are generally viewed as significant and pervasive, meaning that they reach throughout the life cycle of information from collection to analysis to use. Three may be highlighted:

    • First, the information-processing infrastructure is old and inefficient. Many field offices cannot run current generation software, have low-speed Internet access at best, and can't access classified databases – an activity that requires dedicated PCs and encryption.
    • Second, the information collection (that is, investigative) effort is, in large part, focused and trained on the old world of crime not terrorism. Fighting this new war will require not only new training and approaches but also a resource base of Arab-American special agents. American business and large segments of the government have embraced diversity – not only is it ethically correct, it is often the only way to effect operations in a diverse world. Estimates today are that there are less than 25 Arab-American agents.
    • Third, the analytical base is minimal. While information may or may not be collected efficiently and in great volume by the Bureau, that effort is worthless if the material is not promptly and fully analyzed. In this arena, the workforce is composed in substantial part by former clerical employees, and there are few professionals here trained in information science. Moreover, language skills are minimal and reams of Arabic-language materials are said to languish. In addition, cultural skills necessary for effective analysis are woefully lacking.

Legal Impediments. The specific need for new laws to fight terrorism most effectively will be discussed in greater detail in Part III of this series of articles. Here, our focus is on current law that is a significant element in our current information acquisition and exploitation shortcomings. Specifically, two very distinct laws – the Electronic Communications Privacy Act (ECPA) for criminal law enforcement work and the Foreign Intelligence Surveillance Act (FISA) – govern the acquisition of communications information for counter-intelligence and counter-terrorism work. The FISA, seemingly the choice for the problem at hand, authorizes the issuance of a warrant based on a finding of probable cause to believe that the target is a member of a foreign terrorist group or an agent of a foreign power and also provides that intelligence (not law enforcement) is the sole or primary purpose. Otherwise, if there is any potential for law enforcement action, the government must proceed under the ECPA with the issuance of a warrant under traditional Fourth Amendment standards (that is , probable cause of a crime) and, in the case of an intercept warrant, under even higher standards of proof and with greater limitations.

Thus, first and as a result, the Department of Justice is constantly torn between two paths and reluctant to go the intelligence route if there is any indication that a federal crime has been committed – almost always the case in terrorism. And the choice of the criminal route makes warrants very difficult to secure and appears inappropriate to many. As Gardner Peckham, a member of the former National Commission on Terrorism, observed recently in the media, such steps are somewhat akin to "interviewing the Japanese pilots after Pearl Harbor to see if indictments are in order before the U.S. otherwise proceeds." Second, if we select the criminal route – assuming we could meet the required showing – the law then also imposes a near impregnable barrier to information sharing between the criminal investigation and the intelligence process – a barrier that quite obviously hampers the inherently time-sensitive nature of counter-terrorism work. And, third, if we select the intelligence route, the law still prevents surveillance of foreign nationals even where there is a significant suspicion that terrorism may be in the works if there is no firm evidence of links to terrorist groups or foreign states. Unfortunately few terrorists carry identification cards confirming their associations, and evidence of such that would meet the probable cause standard can be almost impossible to acquire without electronic acquisition – the classic Catch-22 situation.

Bureaucratic Impediments. Beyond these questions of resources, analytical capabilities and legal shortcomings, there are bureaucratic issues. These include

  • slowness to move from the historic main enemy (international communism and the USSR);
  • fixation on high-tech terrorism (versus the more accessible type demonstrated on September 11);
  • poor information-sharing practices by the FBI that have been long criticized by local and state police officials; and
  • perhaps most significantly, lack of national political will and focus to address the problem of terrorism in a strategic manner.

Let us consider each in turn.

Slowness to Move from the Main Enemy: For over 40 years, the United States stood in the shadow of a nuclear doomsday and was faced with an enemy well schooled and adept at espionage of every type and focus. As such, American intelligence and law enforcement rightly focused on this critical threat that could end our unique experiment in democratic government. The criticism we read today from many quarters is that our government has failed to quickly and effectively retool to meet the new main enemy. What is the fair answer to this charge? One answer is that the events of  September 11 prove ineptitude. A fuller answer requires examining the many reports and testimony in recent years from the leadership of the FBI and the CIA. Also, it requires realizing that national level priorities of executive branch agencies are set largely and approved in total, not by the agencies, but by the President and the Congress. While a detailed analysis of this issue is beyond our scope here, the debate on mission direction is one with many facets and complexities requiring a commitment from the entirety of our leadership.

Fixation on High-Tech Terrorism: Most would agree that views influence actions in life and here the criticisms are better founded in the judgment of many experts. For example, the U.S. General Accounting Office (GAO) has concluded in several recent studies that too many counter-terrorist programs were based on "improbable, worse-case scenarios" that presented an "exaggerated view" of the potential use of weapons of mass destruction (WMD) and tended to downplay more traditional threats. Moreover, the focus tended to be based on consideration of hypothetical but unlikely vulnerabilities rather than a fact-based analysis of credible threats and historic data.

For example, a 1999 GAO analysis of Department of Defense (DoD) anti-terrorist exercises showed that 92% focused on WMD attacks. And even where consideration is given to the potential use of more conventional attacks such as the use of hijacked airliners, the issue seems to disappear. For instance, last year's Congressionally financed terrorism drill designated TOPOFF and the Terror 2000 report that was to come from the exercise, discussed an attack very similar to September 11, but that discussion was eliminated from the final version. Clearly, a more balanced view of our threat profile is required. As we have seen, the high-tech threat, while intellectually challenging and budget enhancing, is no more likely, and perhaps much less likely, than an attack using more available and traditional resources.

Need to Improve Information Sharing: Here, also, improvements are required since the complaints regarding FBI information dissemination and sharing are long-standing, continuing and dual faceted. The first involves a meaningful process to place information in the hands of those who require access; the second involves a refusal to provide information often on the basis of jurisdiction (turf). We hear the FAA administrator state: "No one could imagine … suicide … airplanes as a lethal weapon." Well, CNN certainly reported the risk. We hear the new FBI director say "… if we had known about this flight training…" The point, of course, is that at least some government officers did know and that it would not have been difficult to learn of this activity at every flight school in the country if the FBI had appropriately tasked local police. And local police from around the country have said the same thing time and time again.

Although promises have been made to solve this problem, the media reports that the FBI will not grant security clearances for the most senior local police officials, that the FBI remains elitist and arrogant and that it is adamant to keep local police out of any anti-terrorist activity. Many are reluctant to speak on the record, but not so the chiefs of police in Baltimore, Portland and several other cities. In other cases, such as the current conflict between former New York City Mayor Giuliani and the local FBI assistant director, the conflict is widely reported, not confirmed, but evident by virtue of the mayor's recent Congressional testimony in favor of legislation to force information sharing. What is needed? Security of information is important but more significant is the development of information and the prevention of terrorism. The bureaucratic hoarding of information, however explained, has no justification in this war. Information – intelligence in government parlance – has value only if it used for the public good.

Need for a Strategic Approach: This brings us to our fourth and undoubtedly most significant bureaucratic factor. If there was not an intelligence failure, then what contributed to the surprise assault on America? To the extent there is a single answer, it is a lack of national political will and the absence of a broad-based international consensus to say that terrorism and state-sponsorship of terrorism must end. This is the lesson of the decades-long war against the Barbary Pirates and it is the path of success today. Strategic problems are not solved by short-term tactical attention. And changes in threats, a constant through history, usually means that we are prepared (at most) for the previous war in terms of resources and techniques. Moreover, there is the traditional American rejection of foreign entanglements as well as a preference and mindset for peace, not war.

The Quintessential Example of the Problem

Is there a common thread to these resource, legal and bureaucratic impediments? Why were multiple clues as to the realistic threat posed by the hijacking of commercial airliners ignored? Why did we hear comments of surprise about the attack on September 11 by scores of federal officials? And is there an answer?

Actually, the public record establishes that the plan was known as early as 1995 and details were added up to the moment of the attack. In 1995 chemical explosives – intended to destroy a commercial American airliner in flight as it hit a major building – blew up instead in a safe house in Manila used by Ramzi Yousef, now serving a life sentence for bombing the garage of the World Trade Center. Philippine police, to their credit, discovered other members of the cell as well as specific details of the plans, including specifically suicide bombers on commercial flights, and shared this information widely including with the news media. Indeed, on September 19 of that year, CNN reported, based on information developed by the Philippine police, that the airliner targets included the Pentagon, CIA headquarters, the Transamerica Tower in San Francisco, the Sears Tower in Chicago and the World Trade Center in New York.

 Fast forward to the present time and further evidence presented by the case of Zacarias Moussaoui, a 33-year-old French citizen of Moroccan descent. He came to the attention of the FBI when an instructor at the Pan Am Flying Academy in Eagan, Minnesota, called the local FBI office in Minneapolis to report that a new foreign student was acting suspiciously. He was asking to learn how to fly large jet aircraft in level flight, but not taking off or landing. But local FBI agents could not get their hands on his computer and telephone records since FBI Headquarters rejected two requests for warrants. First, they rejected even taking the case to the Department of Justice, the first step toward acquiring a FISA warrant, on the grounds that there was not probable cause that the subject was an agent of a foreign terrorist group. Second, they rejected a criminal approach using laws other than terrorism to get grand jury subpoenas and search warrants because there was not probable cause of a crime (yet) and because the existence of a criminal investigation would prohibit any future FISA warrant. All of this despite disseminated reports from a French intelligence agency that the suspect had "Islamic extremist beliefs" as reported in the media. While FBI Headquarters was technically and legally correct here, this example presents graphically the conundrum – an artificial division between law enforcement and intelligence as well as the inability to move against foreign nationals in the United States where there is a strong suspicion, but not probable cause.

 As is evident, the convergence of these two problems – one focus and the other legal – lead to the loss of an opportunity to perhaps prevent the events of September 11. The use today of the information from the Philippines would have been critical in an analytical and legal sense when the Minnesota flight school owner reported the strange behavior of some students of Middle Eastern background to the local FBI. Yet there is no evidence that this highly relevant information was used either to support the application for warrants or intercept the terrorists by dramatically increasing airport security. Only after the events of September 11 was the fact that bin Laden operatives used or planned to use suicide airplane bombs used as justification for a warrant against Moussaoui's computer. That search has raised suspicions by showing, among other things, that he had downloaded information about crop-dusting aircraft. Moussaoui remains in custody and uncooperative.

 The problems we have highlighted and this example suggest that we must have a more consistent, substantial and practical national focus on terrorism. This focus equates to, quite likely, both a change in institutional mission for the FBI as well as a change in the pattern of relationships between local and federal authorities. This change will be, in substantial part, the daunting job facing the FBI's new director, Robert Mueller, as well as Governor Ridge in his new job as head of the Office of Homeland Defense. But we note that on December 3, 2001, as this paper was submitted, FBI Director Mueller announced a sweeping reorganization of the FBI to increase the focus on counter-terrorism operations. The existing structure will be consolidated into four major directorates – criminal investigations, counter-terrorism and counter-intelligence, law enforcement services, and administration. In addition, a number of current activities will be eliminated or downgraded in the coming months; candidates for this elimination and transfer to other agencies include bank robbery and narcotics investigations.

Conclusion

We have examined so far issues relating to the collection and exploitation of information. There remains for us to consider new laws enacted to date to address such problems, yet additional proposed laws and, lastly, the manner in which we may use acquired information in the context of a legal response. In subsequent articles we will consider the changes brought by the USA Patriot Act of 2001, the changes effected by the Justice Department regarding the monitoring of attorney conversations and the authorization by the President for trails of foreign terrorists by military commissions.

We should be mindful of two points as we consider these legal changes. First with respect to new laws, our civil liberties must not be mindlessly exchanged for temporal security measures. It is thus incumbent upon our political body to understand and join the debate and hopefully reach an appropriate balance. Second, with respect to the specific issue of trials by military commissions, we must recognize that waging war against the people of the United States is not dysfunctional crime properly addressed by the criminal code of a civilized nation. Rather, the Constitution of the United States was entered into by, and protects the people of, the United States, not those who have sworn to destroy this nation on the field of battle. We shall see, I believe, that this decision was consistent with established Constitutional law and historical precedent.

How to Order


ASIST Home Page

American Society for Information Science and Technology
8555 16th Street, Suite 850, Silver Spring, Maryland 20910, USA
Tel. 301-495-0900, Fax: 301-495-0810 | E-mail:
asis@asis.org

Copyright © 2001, American Society for Information Science and Technology