Book Criticizes Sept. 11 Panel's Suggestions

Judge Richard Posner's book Preventing Surprise Attacks takes a critical view of the Sept. 11 commission's recommendations and the Central Intelligence Reform Act which followed. Posner discusses the book with Robert Siegel.

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ROBERT SIEGEL, host:

This is ALL THINGS CONSIDERED from NPR News. I'm Robert Siegel.

According to Richard Posner, a lot of what's being done to remedy 9/11 is misguided--for example, the move to centralize control over US intelligence agencies. That's a recommendation of the 9-11 Commission, and it's one that does not thrill Posner, who is a federal judge, a legal scholar and a prolific author. In his new book, "Preventing Surprise Attacks," Richard Posner makes a more fundamental critique. `Sometimes, you just can't prevent a surprise attack. In 2001,' he argues, `some key US officials were very mindful of the risks we faced, but the detailed intelligence just wasn't there.'

Judge RICHARD POSNER (Author, "Preventing Surprise Attacks"): Certainly George Tenet, the head of the CIA, was extremely concerned about international terrorism and Islamic terrorism in particular; Richard Clarke in the White House also. They were sounding the alarm. The problem is they were not able to find out the details.

It's not enough to know that you have an enemy (laughs). You have to know where the enemy is planning to strike next, where and when and how. And the notion of the form the attack would take just was not anticipated. Not that it wasn't understood that crashing airplanes into buildings was a possible terrorist tactic. And in fact, the Air Force had realized this was possible and had actually been planning some exercises to test possible defenses against such an attack. They dropped the idea, decided it was too implausible. You see, the problem is you can think up a zillion ways in which you can be attacked, but given limited resources, you can't defend against all of them. You can't plan against all of them. There are too many.

SIEGEL: How should the federal government strike a balance between what you describe rather persuadingly as the inevitability of the success of some surprise attacks, and on the other hand the sense that one of the things we expect of our government is to protect us? I mean, I can't imagine people running for president or the Senate, saying, `You know, this sort of thing happens. What can we do about it?' They've got to make some good case that they can prevent this, no?

Judge POSNER: Well, that's true as a matter of kind of American political psychology. Americans are not fatalists (laughs). And if you say to them, `Yeah, 9/11--just one of those things...'

SIEGEL: Yeah.

Judge POSNER: `...Pearl Harbor...'

SIEGEL: Yeah.

Judge POSNER: `...just one of those things,' of course, people are indignant. They assume we can achieve anything including security, which we can't. But what is necessary for realism is to understand that we will never have an airtight warning system against surprise attacks, and that means that while we have to devote thought and resources to our intelligence system, we also have to think about how to mitigate these attacks when they come.

So if you think about something like the risk of a bioterror attack, which I think is significant, very ominous, we can do certain things to try to detect it in advance. It would be foolish to think we could achieve, you know, omniscience about bioterror potential of enemies. And therefore, we have to think very carefully about how to mitigate a bioterror attack that occurs, which means stocking vaccines. It means expanding hospital facilities, creating systems of sensors. All sorts of measures of mitigating the severity of attack require as much attention as trying to improve intelligence to the point where we can always head off the attack before it occurs.

SIEGEL: There's an idea that you fault the 9-11 Commission for being too dismissive of that you're attracted to, and that is the MI 5 model. That would be the British agency that is not a criminal prosecution force, not a criminal police force, that is, but rather a domestic intelligence force. You feel they should have taken that idea much more seriously.

Judge POSNER: Yes. MI 5 was founded in 1909, and it has operated for most of its life, until recently, without any kind of judicial controls. And, you know, it has a certain history of abusing civil liberties, so it's not a perfect model. What I prefer now to talk about is the Canadian Security Intelligence Service, which is modeled on MI 5, but has very elaborate controls to prevent infringements of civil liberties, and it's been operating for--since 1984 and I don't believe has been accused of abuses. Moreover, while historically...

SIEGEL: But, Judge Posner, this season, we've seen the unveiling of Mark Felt as having been Deep Throat. He used to run the counterintelligence program at the FBI.

Judge POSNER: Yeah, but look.

SIEGEL: And he was tried for it.

Judge POSNER: Yeah.

SIEGEL: He was indicted for what he did.

Judge POSNER: But that's another absurdity of the 9-11 Commission's opposition to an MI 5 structure. Who did Mark Felt work for? He worked for the FBI. The FBI has a long history of civil liberties abuses. That doesn't mean that a counterpart agency with somewhat different legal environment wouldn't be perfectly effective.

SIEGEL: One thing you say that we can do to cope with the possibility of a surprise attack is be prepared to cope with its consequences. We can also be prepared to deter by it being known that we'll strike back at someplace, whoever does this.

Judge POSNER: Yes.

SIEGEL: Is that equally effective, to say that?

Judge POSNER: Yes, well, that's, of course, the principle of deterrence, and it's very important. And I think, you know, the fact that we responded so rapidly and so effectively in Afghanistan, I think, would give a terrorist pause. So, yes, deterrence, even willingness to wage preventive war are among the measures you want to have once you realize that intelligence is not going to be airtight.

SIEGEL: Would you suggest that people who are opening the mail in the mail room with latex gloves for fear of the white powder that might be anthrax or the people who are having their fingernail clippers confiscated at the airport because they could be weaponized, or who aren't allowed to use the rest room for the last half-hour coming into Washington, DC--that we should simply stop all this, that it really has no role in the calculus of surprise attacks?

Judge POSNER: There's a political problem, and that is that from the standpoint of the people working in intelligence and in security generally, the very worst thing is another attack that's a repetition of the previous attack, because then you have no excuses. So if there's a smallpox bioterror attack, people could say, `Well, you know, it's the first time, what can we do, such and such.' But if there's another anthrax attack, then people will say, `Well, you knew that could happen. Why did you let your guard down?' And if you replied, which is the intelligence reply, `Look, the way you deal rationally with threats, you assess threats, and you try to figure out, you know, what are the biggest threats, which are the most likely, which would do the most harm, which can be prevented at reasonable cost.'

So as I say, there is a excess investment in trying to prevent an exact repetition of a previous attack, but there may be a political or psychological inevitability to that.

SIEGEL: Well, Judge Posner, thank you very much for talking with us today.

Judge POSNER: Very welcome.

SIEGEL: Richard Posner is the author of "Preventing Surprise Attacks: Intelligence Reform in the Wake of 9/11."

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