Posner's List

W keeps sending wacko judicial appointments to the Senate Judiciary Committee. Why doesn't he send Richard A. Posner forward? The most cerebral of the federal jurists, Posner cuts to the heart of the weaknesses of the 9/11 Commission Report. If his suggestions aren't taken to heart by the 9/11 Families and the 9/11 Commissioners, the result will be more furniture rearrangement on the deck of the Titanic. If this is (fair & balanced) analysis, so be it.

[x The New York Times]
The 9/11 Report: A Dissent
By RICHARD A. POSNER
Review of THE 9/11 COMMISSION REPORT: Final Report of the National Commission on Terrorist Attacks Upon the United States. Illustrated. 567 pp. W. W. Norton & Company. Paper, $10.

The idea was sound: a politically balanced, generously financed committee of prominent, experienced people would investigate the government's failure to anticipate and prevent the terrorist attacks of Sept. 11, 2001. Had the investigation been left to the government, the current administration would have concealed its own mistakes and blamed its predecessors. This is not a criticism of the Bush White House; any administration would have done the same.

And the execution was in one vital respect superb: the 9/11 commission report is an uncommonly lucid, even riveting, narrative of the attacks, their background and the response to them. (Norton has published the authorized edition; another edition, including reprinted news articles by reporters from The New York Times, has been published by St. Martin's, while PublicAffairs has published the staff reports and some of the testimony.)

The prose is free from bureaucratese and, for a consensus statement, the report is remarkably forthright. Though there could not have been a single author, the style is uniform. The document is an improbable literary triumph.

However, the commission's analysis and recommendations are unimpressive. The delay in the commission's getting up to speed was not its fault but that of the administration, which dragged its heels in turning over documents; yet with completion of its investigation deferred to the presidential election campaign season, the commission should have waited until after the election to release its report. That would have given it time to hone its analysis and advice.

The enormous public relations effort that the commission orchestrated to win support for the report before it could be digested also invites criticism -- though it was effective: in a poll conducted just after publication, 61 percent of the respondents said the commission had done a good job, though probably none of them had read the report. The participation of the relatives of the terrorists' victims (described in the report as the commission's ''partners'') lends an unserious note to the project (as does the relentless self-promotion of several of the members). One can feel for the families' loss, but being a victim's relative doesn't qualify a person to advise on how the disaster might have been prevented.

Much more troublesome are the inclusion in the report of recommendations (rather than just investigative findings) and the commissioners' misplaced, though successful, quest for unanimity. Combining an investigation of the attacks with proposals for preventing future attacks is the same mistake as combining intelligence with policy. The way a problem is described is bound to influence the choice of how to solve it. The commission's contention that our intelligence structure is unsound predisposed it to blame the structure for the failure to prevent the 9/11 attacks, whether it did or not. And pressure for unanimity encourages just the kind of herd thinking now being blamed for that other recent intelligence failure -- the belief that Saddam Hussein possessed weapons of mass destruction.

At least the commission was consistent. It believes in centralizing intelligence, and people who prefer centralized, pyramidal governance structures to diversity and competition deprecate dissent. But insistence on unanimity, like central planning, deprives decision makers of a full range of alternatives. For all one knows, the price of unanimity was adopting recommendations that were the second choice of many of the commission's members or were consequences of horse trading. The premium placed on unanimity undermines the commission's conclusion that everybody in sight was to blame for the failure to prevent the 9/11 attacks. Given its political composition (and it is evident from the questioning of witnesses by the members that they had not forgotten which political party they belong to), the commission could not have achieved unanimity without apportioning equal blame to the Clinton and Bush administrations, whatever the members actually believe.

The tale of how we were surprised by the 9/11 attacks is a product of hindsight; it could not be otherwise. And with the aid of hindsight it is easy to identify missed opportunities (though fewer than had been suspected) to have prevented the attacks, and tempting to leap from that observation to the conclusion that the failure to prevent them was the result not of bad luck, the enemy's skill and ingenuity or the difficulty of defending against suicide attacks or protecting an almost infinite array of potential targets, but of systemic failures in the nation's intelligence and security apparatus that can be corrected by changing the apparatus.

That is the leap the commission makes, and it is not sustained by the report's narrative. The narrative points to something different, banal and deeply disturbing: that it is almost impossible to take effective action to prevent something that hasn't occurred previously. Once the 9/11 attacks did occur, measures were taken that have reduced the likelihood of a recurrence. But before the attacks, it was psychologically and politically impossible to take those measures. The government knew that Al Qaeda had attacked United States facilities and would do so again. But the idea that it would do so by infiltrating operatives into this country to learn to fly commercial aircraft and then crash such aircraft into buildings was so grotesque that anyone who had proposed that we take costly measures to prevent such an event would have been considered a candidate for commitment. No terrorist had hijacked an American commercial aircraft anywhere in the world since 1986. Just months before the 9/11 attacks the director of the Defense Department's Defense Threat Reduction Agency wrote: ''We have, in fact, solved a terrorist problem in the last 25 years. We have solved it so successfully that we have forgotten about it; and that is a treat. The problem was aircraft hijacking and bombing. We solved the problem. . . . The system is not perfect, but it is good enough. . . . We have pretty much nailed this thing.'' In such a climate of thought, efforts to beef up airline security not only would have seemed gratuitous but would have been greatly resented because of the cost and the increased airport congestion.

The problem isn't just that people find it extraordinarily difficult to take novel risks seriously; it is also that there is no way the government can survey the entire range of possible disasters and act to prevent each and every one of them. As the commission observes, ''Historically, decisive security action took place only after a disaster had occurred or a specific plot had been discovered.'' It has always been thus, and probably always will be. For example, as the report explains, the 1993 truck bombing of the World Trade Center led to extensive safety improvements that markedly reduced the toll from the 9/11 attacks; in other words, only to the slight extent that the 9/11 attacks had a precedent were significant defensive steps taken in advance.

The commission's contention that ''the terrorists exploited deep institutional failings within our government'' is overblown. By the mid-1990's the government knew that Osama bin Laden was a dangerous enemy of the United States. President Clinton and his national security adviser, Samuel Berger, were so concerned that Clinton, though ''warned in the strongest terms'' by the Secret Service and the C.I.A. that ''visiting Pakistan would risk the president's life,'' did visit that country (flying in on an unmarked plane, using decoys and remaining only six hours) and tried unsuccessfully to enlist its cooperation against bin Laden. Clinton authorized the assassination of bin Laden, and a variety of means were considered for achieving this goal, but none seemed feasible. Invading Afghanistan to pre-empt future attacks by Al Qaeda was considered but rejected for diplomatic reasons, which President Bush accepted when he took office and which look even more compelling after the trouble we've gotten into with our pre-emptive invasion of Iraq. The complaint that Clinton was merely ''swatting at flies,'' and the claim that Bush from the start was determined to destroy Al Qaeda root and branch, are belied by the commission's report. The Clinton administration envisaged a campaign of attrition that would last three to five years, the Bush administration a similar campaign that would last three years. With an invasion of Afghanistan impracticable, nothing better was on offer. Almost four years after Bush took office and almost three years after we wrested control of Afghanistan from the Taliban, Al Qaeda still has not been destroyed.

It seems that by the time Bush took office, ''bin Laden fatigue'' had set in; no one had practical suggestions for eliminating or even substantially weakening Al Qaeda. The commission's statement that Clinton and Bush had been offered only a ''narrow and unimaginative menu of options for action'' is hindsight wisdom at its most fatuous. The options considered were varied and imaginative; they included enlisting the Afghan Northern Alliance or other potential tribal allies of the United States to help kill or capture bin Laden, an attack by our Special Operations forces on his compound, assassinating him by means of a Predator drone aircraft or coercing or bribing the Taliban to extradite him. But for political or operational reasons, none was feasible.

It thus is not surprising, perhaps not even a fair criticism, that the new administration treaded water until the 9/11 attacks. But that's what it did. Bush's national security adviser, Condoleezza Rice, ''demoted'' Richard Clarke, the government's leading bin Laden hawk and foremost expert on Al Qaeda. It wasn't technically a demotion, but merely a decision to exclude him from meetings of the cabinet-level ''principals committee'' of the National Security Council; he took it hard, however, and requested a transfer from the bin Laden beat to cyberterrorism. The committee did not discuss Al Qaeda until a week before the 9/11 attacks. The new administration showed little interest in exploring military options for dealing with Al Qaeda, and Donald Rumsfeld had not even gotten around to appointing a successor to the Defense Department's chief counterterrorism official (who had left the government in January) when the 9/11 attacks occurred.

I suspect that one reason, not mentioned by the commission, for the Bush administration's initially tepid response to the threat posed by Al Qaeda is that a new administration is predisposed to reject the priorities set by the one it's succeeding. No doubt the same would have been true had Clinton been succeeding Bush as president rather than vice versa.

Before the commission's report was published, the impression was widespread that the failure to prevent the attacks had been due to a failure to collate bits of information possessed by different people in our security services, mainly the Central Intelligence Agency and the Federal Bureau of Investigation. And, indeed, had all these bits been collated, there would have been a chance of preventing the attacks, though only a slight one; the best bits were not obtained until late in August 2001, and it is unrealistic to suppose they could have been integrated and understood in time to detect the plot.

The narrative portion of the report ends at Page 338 and is followed by 90 pages of analysis and recommendations. I paused at Page 338 and asked myself what improvements in our defenses against terrorist groups like Al Qaeda are implied by the commission's investigative findings (as distinct from recommendations that the commission goes on to make in the last part of the report). The list is short:

(1) Major buildings should have detailed evacuation plans and the plans should be communicated to the occupants.

(2) Customs officers should be alert for altered travel documents of Muslims entering the United States; some of the 9/11 hijackers might have been excluded by more careful inspections of their papers. Biometric screening (such as fingerprinting) should be instituted to facilitate the creation of a comprehensive database of suspicious characters. In short, our borders should be made less porous.

(3) Airline passengers and baggage should be screened carefully, cockpit doors secured and override mechanisms installed in airliners to enable a hijacked plane to be controlled from the ground.

(4) Any legal barriers to sharing information between the C.I.A. and the F.B.I. should be eliminated.

(5) More Americans should be trained in Arabic, Farsi and other languages in widespread use in the Muslim world. The commission remarks that in 2002, only six students received undergraduate degrees in Arabic from colleges in the United States.

(6) The thousands of federal agents assigned to the ''war on drugs,'' a war that is not only unwinnable but probably not worth winning, should be reassigned to the war on international terrorism.

(7) The F.B.I. appears from the report to be incompetent to combat terrorism; this is the one area in which a structural reform seems indicated (though not recommended by the commission). The bureau, in excessive reaction to J. Edgar Hoover's freewheeling ways, has become afflicted with a legalistic mind-set that hinders its officials from thinking in preventive rather than prosecutorial terms and predisposes them to devote greater resources to drug and other conventional criminal investigations than to antiterrorist activities. The bureau is habituated to the leisurely time scale of criminal investigations and prosecutions. Information sharing within the F.B.I., let alone with other agencies, is sluggish, in part because the bureau's field offices have excessive autonomy and in part because the agency is mysteriously unable to adopt a modern communications system. The F.B.I. is an excellent police department, but that is all it is. Of all the agencies involved in intelligence and counterterrorism, the F.B.I. comes out worst in the commission's report.

Progress has been made on a number of items on my list. There have been significant improvements in border control and aircraft safety. The information ''wall'' was removed by the USA Patriot Act, passed shortly after 9/11, although legislation may not have been necessary, since, as the commission points out, before 9/11 the C.I.A. and the F.B.I. exaggerated the degree to which they were forbidden to share information. This was a managerial failure, not an institutional one. Efforts are under way on (5) and (6), though powerful political forces limit progress on (6). Oddly, the simplest reform -- better building-evacuation planning -- has lagged.

The only interesting item on my list is (7). The F.B.I.'s counterterrorism performance before 9/11 was dismal indeed. Urged by one of its field offices to seek a warrant to search the laptop of Zacarias Moussaoui (a candidate hijacker-pilot), F.B.I. headquarters refused because it thought the special court that authorizes foreign intelligence surveillance would decline to issue a warrant -- a poor reason for not requesting one. A prescient report from the Arizona field office on flight training by Muslims was ignored by headquarters. There were only two analysts on the bin Laden beat in the entire bureau. A notice by the director, Louis J. Freeh, that the bureau focus its efforts on counterterrorism was ignored.

So what to do? One possibility would be to appoint as director a hard-nosed, thick-skinned manager with a clear mandate for change -- someone of Donald Rumsfeld's caliber. (His judgment on Iraq has been questioned, but no one questions his capacity to reform a hidebound government bureaucracy.) Another would be to acknowledge the F.B.I.'s deep-rooted incapacity to deal effectively with terrorism, and create a separate domestic intelligence agency on the model of Britain's Security Service (M.I.5). The Security Service has no power of arrest. That power is lodged in the Special Branch of Scotland Yard, and if we had our own domestic intelligence service, modeled on M.I.5, the power of arrest would be lodged in a branch of the F.B.I. As far as I know, M.I.5 and M.I.6 (Britain's counterpart to the C.I.A.) work well together. They have a common culture, as the C.I.A. and the F.B.I. do not. They are intelligence agencies, operating by surveillance rather than by prosecution. Critics who say that an American equivalent of M.I.5 would be a Gestapo understand neither M.I.5 nor the Gestapo.

Which brings me to another failing of the 9/11 commission: American provinciality. Just as we are handicapped in dealing with Islamist terrorism by our ignorance of the languages, cultures and history of the Muslim world, so we are handicapped in devising effective antiterrorist methods by our reluctance to consider foreign models. We shouldn't be embarrassed to borrow good ideas from nations with a longer experience of terrorism than our own. The blows we have struck against Al Qaeda's centralized organization may deflect Islamist terrorists from spectacular attacks like 9/11 to retail forms like car and truck bombings, assassinations and sabotage. If so, Islamist terrorism may come to resemble the kinds of terrorism practiced by the Irish Republican Army and Hamas, with which foreign nations like Britain and Israel have extensive experience. The United States remains readily penetrable by Islamist terrorists who don't even look or sound Middle Eastern, and there are Qaeda sleeper cells in this country. All this underscores the need for a domestic intelligence agency that, unlike the F.B.I., is effective.

Were all the steps that I have listed fully implemented, the probability of another terrorist attack on the scale of 9/11 would be reduced -- slightly. The measures adopted already, combined with our operation in Afghanistan, have undoubtedly reduced that probability, and the room for further reduction probably is small. We and other nations have been victims of surprise attacks before; we will be again.

They follow a pattern. Think of Pearl Harbor in 1941 and the Tet offensive in Vietnam in 1968. It was known that the Japanese might attack us. But that they would send their carrier fleet thousands of miles to Hawaii, rather than just attack the nearby Philippines or the British and Dutch possessions in Southeast Asia, was too novel and audacious a prospect to be taken seriously. In 1968 the Vietnamese Communists were known to be capable of attacking South Vietnam's cities. Indeed, such an assault was anticipated, though not during Tet (the Communists had previously observed a truce during the Tet festivities) and not on the scale it attained. In both cases the strength and determination of the enemy were underestimated, along with the direction of his main effort. In 2001 an attack by Al Qaeda was anticipated, but it was anticipated to occur overseas, and the capability and audacity of the enemy were underestimated. (Note in all three cases a tendency to underestimate non-Western foes -- another aspect of provinciality.)

Anyone who thinks this pattern can be changed should read those 90 pages of analysis and recommendations that conclude the commission's report; they come to very little. Even the prose sags, as the reader is treated to a barrage of bromides: ''the American people are entitled to expect their government to do its very best,'' or ''we should reach out, listen to and work with other countries that can help'' and ''be generous and caring to our neighbors,'' or we should supply the Middle East with ''programs to bridge the digital divide and increase Internet access'' -- the last an ironic suggestion, given that encrypted e-mail is an effective medium of clandestine communication. The ''hearts and minds'' campaign urged by the commission is no more likely to succeed in the vast Muslim world today than its prototype was in South Vietnam in the 1960's.

The commission wants criteria to be developed for picking out which American cities are at greatest risk of terrorist attack, and defensive resources allocated accordingly -- this to prevent every city from claiming a proportional share of those resources when it is apparent that New York and Washington are most at risk. Not only do we lack the information needed to establish such criteria, but to make Washington and New York impregnable so that terrorists can blow up Los Angeles or, for that matter, Kalamazoo with impunity wouldn't do us any good.

The report states that the focus of our antiterrorist strategy should not be ''just 'terrorism,' some generic evil. This vagueness blurs the strategy. The catastrophic threat at this moment in history is more specific. It is the threat posed by Islamist terrorism.'' Is it? Who knows? The menace of bin Laden was not widely recognized until just a few years before the 9/11 attacks. For all anyone knows, a terrorist threat unrelated to Islam is brewing somewhere (maybe right here at home -- remember the Oklahoma City bombers and the Unabomber and the anthrax attack of October 2001) that, given the breathtakingly rapid advances in the technology of destruction, will a few years hence pose a greater danger than Islamic extremism. But if we listen to the 9/11 commission, we won't be looking out for it because we've been told that Islamist terrorism is the thing to concentrate on.

Illustrating the psychological and political difficulty of taking novel threats seriously, the commission's recommendations are implicitly concerned with preventing a more or less exact replay of 9/11. Apart from a few sentences on the possibility of nuclear terrorism, and of threats to other modes of transportation besides airplanes, the broader range of potential threats, notably those of bioterrorism and cyberterrorism, is ignored.

Many of the commission's specific recommendations are sensible, such as that American citizens should be required to carry biometric passports. But most are in the nature of more of the same -- more of the same measures that were implemented in the wake of 9/11 and that are being refined, albeit at the usual bureaucratic snail's pace. If the report can put spurs to these efforts, all power to it. One excellent recommendation is reducing the number of Congressional committees, at present in the dozens, that have oversight responsibilities with regard to intelligence. The stated reason for the recommendation is that the reduction will improve oversight. A better reason is that with so many committees exercising oversight, our senior intelligence and national security officials spend too much of their time testifying.

The report's main proposal -- the one that has received the most emphasis from the commissioners and has already been endorsed in some version by both presidential candidates -- is for the appointment of a national intelligence director who would knock heads together in an effort to overcome the reluctance of the various intelligence agencies to share information. Yet the report itself undermines this proposal, in a section titled ''The Millennium Exception.'' ''In the period between December 1999 and early January 2000,'' we read, ''information about terrorism flowed widely and abundantly.'' Why? Mainly ''because everyone was already on edge with the millennium and possible computer programming glitches ('Y2K').'' Well, everyone is now on edge because of 9/11. Indeed, the report suggests no current impediments to the flow of information within and among intelligence agencies concerning Islamist terrorism. So sharing is not such a problem after all. And since the tendency of a national intelligence director would be to focus on the intelligence problem du jour, in this case Islamist terrorism, centralization of the intelligence function could well lead to overconcentration on a single risk.

The commission thinks the reason the bits of information that might have been assembled into a mosaic spelling 9/11 never came together in one place is that no one person was in charge of intelligence. That is not the reason. The reason or, rather, the reasons are, first, that the volume of information is so vast that even with the continued rapid advances in data processing it cannot be collected, stored, retrieved and analyzed in a single database or even network of linked databases. Second, legitimate security concerns limit the degree to which confidential information can safely be shared, especially given the ever-present threat of moles like the infamous Aldrich Ames. And third, the different intelligence services and the subunits of each service tend, because information is power, to hoard it. Efforts to centralize the intelligence function are likely to lengthen the time it takes for intelligence analyses to reach the president, reduce diversity and competition in the gathering and analysis of intelligence data, limit the number of threats given serious consideration and deprive the president of a range of alternative interpretations of ambiguous and incomplete data -- and intelligence data will usually be ambiguous and incomplete.

The proposal begins to seem almost absurd when one considers the variety of our intelligence services. One of them is concerned with designing and launching spy satellites; another is the domestic intelligence branch of the F.B.I.; others collect military intelligence for use in our conflicts with state actors like North Korea. There are 15 in all. The national intelligence director would be in continuous conflict with the attorney general, the secretary of defense, the chairman of the Joint Chiefs of Staff, the secretary of homeland security and the president's national security adviser. He would have no time to supervise the organizational reforms that the commission deems urgent.

The report bolsters its proposal with the claim that our intelligence apparatus was designed for fighting the cold war and so can't be expected to be adequate to fighting Islamist terrorism. The cold war is depicted as a conventional military face-off between the United States and the Soviet Union and hence a 20th-century relic (the 21st century is to be different, as if the calendar drove history). That is not an accurate description. The Soviet Union operated against the United States and our allies mainly through subversion and sponsored insurgency, and it is not obvious why the apparatus developed to deal with that conduct should be thought maladapted for dealing with our new enemy.

The report notes the success of efforts to centralize command of the armed forces, and to reduce the lethal rivalries among the military services. But there is no suggestion that the national intelligence director is to have command authority.

The central-planning bent of the commission is nowhere better illustrated than by its proposal to shift the C.I.A.'s paramilitary operations, despite their striking success in the Afghanistan campaign, to the Defense Department. The report points out that ''the C.I.A. has a reputation for agility in operations,'' whereas the reputation of the military is ''for being methodical and cumbersome.'' Rather than conclude that we are lucky to have both types of fighting capacity, the report disparages ''redundant, overlapping capabilities'' and urges that ''the C.I.A.'s experts should be integrated into the military's training, exercises and planning.'' The effect of such integration is likely to be the loss of the ''agility in operations'' that is the C.I.A.'s hallmark. The claim that we ''cannot afford to build two separate capabilities for carrying out secret military operations'' makes no sense. It is not a question of building; we already have multiple such capabilities -- Delta Force, Marine reconnaissance teams, Navy Seals, Army Rangers, the C.I.A.'s Special Activities Division. Diversity of methods, personnel and organizational culture is a strength in a system of national security; it reduces risk and enhances flexibility.

What is true is that 15 agencies engaged in intelligence activities require coordination, notably in budgetary allocations, to make sure that all bases are covered. Since the Defense Department accounts for more than 80 percent of the nation's overall intelligence budget, the C.I.A., with its relatively small budget (12 percent of the total), cannot be expected to control the entire national intelligence budget. But to layer another official on top of the director of central intelligence, one who would be in a constant turf war with the secretary of defense, is not an appealing solution. Since all executive power emanates from the White House, the national security adviser and his or her staff should be able to do the necessary coordinating of the intelligence agencies. That is the traditional pattern, and it is unlikely to be bettered by a radically new table of organization.

So the report ends on a flat note. But one can sympathize with the commission's problem. To conclude after a protracted, expensive and much ballyhooed investigation that there is really rather little that can be done to reduce the likelihood of future terrorist attacks beyond what is being done already, at least if the focus is on the sort of terrorist attacks that have occurred in the past rather than on the newer threats of bioterrorism and cyberterrorism, would be a real downer -- even a tad un-American. Americans are not fatalists. When a person dies at the age of 95, his family is apt to ascribe his death to a medical failure. When the nation experiences a surprise attack, our instinctive reaction is not that we were surprised by a clever adversary but that we had the wrong strategies or structure and let's change them and then we'll be safe. Actually, the strategies and structure weren't so bad; they've been improved; further improvements are likely to have only a marginal effect; and greater dangers may be gathering of which we are unaware and haven't a clue as to how to prevent.


Judge Richard A. Posner 

serves on the United States Court of Appeals for the Seventh Circuit, is a senior lecturer at the University of Chicago Law School and is the author of the forthcoming book Catastrophe: Risk and Response.

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