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Abstract

The magnitude of the terrorist threat to the United States, coupled with the lack of coordination among our domestic intelligence agencies and the failure of the lead agency, the FBI, to develop an adequate domestic intelligence capability, argues compellingly for reform. Because the FBI’s failure is systemic, being rooted in the incompatibility of criminal law enforcement (the FBI’s principal mission) with national-security intelligence, the reform must have a structural dimension. The WMD (Robb-Silberman) Commission’s proposal, which the President is reported to have endorsed, is to create a domestic intelligence agency within the FBI by fusion of its three units that at present share intelligence responsibility. Such a fusion may or not be a good idea; but clearly it is not enough. The Director of National Intelligence should take the coordination and command of domestic intelligence firmly into his hands by appointing a deputy for domestic intelligence, while the President should by executive order create outside of (but not in derogation of) the FBI a domestic intelligence agency, modeled on such foreign agencies as the Canadian Security Intelligence Service, that would have no law enforcement functions. The agency could be lodged in the Department of Homeland Security.

Judge Richard A. Posner serves on the U.S. Court of Appeals for the Seventh Circuit and is a senior lecturer at the University of Chicago Law School.