(Click on the logo to return to the main blog.)

Why We Failed on September 11
01/03/2004

Must-read column by ex-NSA general counsel Stewart Baker on one reason intelligence failed to stop September 11. This is truly chilling:

In August 2001, the New York FBI intelligence agent looking for al-Mihdhar and al-Hazmi didn't have the computer access needed to do the job alone. He requested help from the bureau's criminal investigators and was turned down. Acting on legal advice, FBI headquarters had refused to involve its criminal agents. In an e-mail to the New York agent, headquarters staff said: "If al-Midhar is located, the interview must be conducted by an intel[ligence] agent. A criminal agent CAN NOT be present at the interview. This case, in its entirety, is based on intel[ligence]. If at such time as information is developed indicating the existence of a substantial federal crime, that information will be passed over the wall according to the proper procedures and turned over for follow-up criminal investigation."

In a reply message, the New York agent protested the ban on using law enforcement resources for intelligence investigations in eerily prescient terms: "[S]ome day someone will die—and wall or not—the public will not understand why we were not more effective and throwing every resource we had at certain 'problems.' Let's hope the [lawyers who gave the advice] will stand behind their decisions then, especially since the biggest threat to us now, UBL [Usama Bin Laden], is getting the most 'protection.' "

You know you're dealing with 9/11-related material when reality has an urban-legend, Internet-rumor feel.

Baker goes on to suggest what has been more and more on my mind as foolish town council after foolish town council votes to thumb their noses at the Patriot Act:

The second lesson is that we cannot write rules that will both protect us from every theoretical risk to privacy and still allow the government to protect us from terrorists. We cannot fine-tune the system to perfection, because systems that ought to work can fail. That is why I am profoundly skeptical of efforts to write new privacy rules and why I would rely instead on auditing for actual abuses. We should not again put American lives at risk for the sake of some speculative risk to our civil liberties.

It's difficult — and not altogether comfortable — to guess at what it indicates, but I can't help but see significance in the fact that so many who oppose post-9/11 security measures push to repeal them rather than to insert protections. It is important to ask "who's watching the watchers," but it seems we're much too quick to declare that our worries indicate that the watchers oughtn't be watching, rather than that somebody should be watching them.

Posted by Justin Katz @ 12:17 AM EST