Intelligence and Surveillance Policies and Procedures after September 11th

Intelligence/Surveillance Policies & Procedures

After the tragedy of September 11 attacks on Pentagon and World Trade Center, the National Security Agency (NSA) was given authority to listen to all kinds of communications between those U.S. residents who are suspected to have links to Al Qaeda and other terrorist groups around the world. It was assumed that by tapping their communication American intelligence community can efficiently detect and deter terror attacks. The Congress also provided the U.S. president legal coverage to pursue American enemies, disregarding all preceding intelligence and surveillance acts such as Foreign Intelligence Surveillance Act or Title III of the Omnibus Crime Control and Safe Streets Act (Donohue, 2006).

It is noteworthy that previous U.S. presidents also have used and enjoyed such powers and that George Bush was not the first president to do so. For instance, SHAMROCK and MINARET are two noteworthy operations that were carried out during the cold war by the NSA. Similarly, the Federal Bureau of Investigations (FBI) also carried out operation COINTELPRO, which led to approximately half a million files relating to the American people. In the same vein, the Central Intelligence Agency (CIA) launched and administered operation CHAOS which designed a database of approximately 300,000 American citizens also constantly kept tract of them (Donohue, 2006).

In is noteworthy here that Congress cut back on these intelligence community privileges in 1978 and 1991 respectively. Donohue (2006) writes,

In 1978, Congress introduced the Foreign Intelligence Surveillance Act ("FISA") precisely to prevent unchecked executive surveillance of American citizens. And congressional interest in ensuring oversight did not end there: in 1991 Congress amended the 1947 National Security Act to require the President to keep the congressional intelligence committees 'fully and currently informed' of surveillance programs underway, including any "significant anticipated intelligence activity."

The law enforcement agencies in U.S., in particular the American intelligence gathering institutions have been given unprecedented powers to curb extremism and prevent another terror attack on the U.S. soil. Previously the National Security Act and FISA made sure that the American intelligence community faced tough challenges in the form of legal hurdles to spy American citizens. However, post 9/11, with the digital infrastructure in place things have become relatively easy for the law enforcement to spy whom they suspect of having terror links. Similar trends are also being seen elsewhere in Europe. Donohue (2006) writes,

The NSA program represents only one of many expansions in executive surveillance since 9/11. Legal controls previously introduced to protect citizens' privacy and to prevent the misuse of surveillance powers have been relaxed. What makes the situation qualitatively different now is not just the lowering of the bar: digitization and the rapid advancement of technology mean that the type and volume of information currently available eclipse that of previous generations. And the issue is not confined to the United States. Despite the incorporation of the European Convention of Human Rights into British law, the United Kingdom also appears to be losing privacy in its battle against terrorism."

Counterterrorism and intelligence

The American judiciary, the military and the intelligence community have been at the in conflict about how the war prisoners should be treated and how they should face trial. The war prisoners include not only foreign detainees but also American citizens. Both of them are being held in military prisons and are being tried by the military courts. Similarly, the intelligence community is also facing problems in executing its plans on spying domestically and picking up suspects for without a warrant. Anderson (2006) writes: "Two branches of government have been hard at work in the war on terror these past years, even if they have not infrequently worked at cross-purposes. Executive agencies devise a warrantless surveillance program -- and a federal judge declares it unconstitutional. Administration officials and federal bureaucrats devise rules for trying accused terrorists in military tribunals -- and the Hamdan decision sends the tribunal drafters back to the drawing board (Anderson 2006)."

The U.S. Congress and senate have played the role of more or less a spectator throughout this debacle. Seven and a half years have passed since 9/11 and U.S. still does not have a comprehensive policy with regards to how terrorism should be tackled institutionally both within and outside United States. The Supreme Court who has the power to interpret the constitution states very strenuously, "Congress has an indispensable role to play in establishing democratically legitimate policy in counterterrorism (Anderson, 2006)." In addition, Anderson (2006) critics the manner in which counterterrorism has been handled by the law making body in America. He writes, "Democratic theory tells us, moreover, that whatever actions the executive was able to undertake on its own authority in the immediate emergency of 9/11, and indeed whatever inherent powers it might permanently possess, in fact democracy is better off when the political branches work in concert to create a long-term policy. So where is the legislation, passed by Congress and signed into law by the president, on the multiple topics that make up a full and complete counterterrorism policy for the country?"

Defining Terrorism

The United Nations is an organization representing the interests and rights of more than 200 countries. The interests of one country quite often are in conflict with another country. This is no more evident in the case of terrorism since this body has yet to come up with a suitable definition of what constitute terrorism. Higgie (2005) writes, "There is no internationally agreed definition of 'terrorism'. Over the nearly 35 years this very issue has been inscribed on the UN's agenda, professional diplomats and international lawyers have completely failed to settle on a definition."

Policy Considerations

It is clear from the aforementioned facts that currently the American intelligence community lacks a comprehensive counterterrorism policy. Furthermore, the global community cannot even come to terms with what constitutes terror. In such a scenario where on one hand the terrorists are going to stop at nothing to hurt American interests, the American leadership needs to step up efforts to lead the world by creating a comprehensive counterterrorism policy. Throughout the rest of the paper, we will highlight some useful policy recommendations for establishing comprehensive counterterrorism laws and procedures.

With regards to preparation

Art and Richardson (2007) present four important dimensions of preparing counterterrorism laws. These four dimensions are as follows:

Preceding experience

Acquired knowledge

Heightened interest towards discovering flaws in the measures

Increased effort based on a constant basis

Furthermore, Jacobson (2006) also identified (1) prior experience and (2) acquired knowledge as strong counterterrorism policy making initiatives. They asserted and identified prior experience as the founding stone to start working towards a comprehensive counterterrorism policy.

Working towards change that begins from bottom-up to encourage incubation

Art and Richardson (2007) assert that those in the field acquire first hand experience of how the laws are functioning and therefore their ideas are critical for strengthening the current counterterrorism measures. They identified incubation as a process of contemplating an idea and recognized two features of incubation:

Perceptive

Calculated

They asserted that incubation leads to discovery of various new relationships that had previously gone unnoticed. In the field of intelligence, this attribute can be recognized as an inherent trait of intelligence officers. They give a uni-dimensional definition of incubation: simmering of opportunities that had been recognized over time.

Strong insight

The intelligence community ought to be trained to develop strong insights. They should be able to consciously recognize an opportunity when it arrives. Art and Richardson (2007) define insight as an emotional and mental experience when the opportunity is recognized. They signify insight as a "point of vision" that ruptures the present means-ends perception.

Evaluation of policy success

Intelligence gathering and filtering process is inherently dependent on the outcome of the evaluation. In the field of law enforcement, Art and Richardson (2007) provide two significant dimensions of evaluation:

Testing of ideas by talking to field agents and intelligence officers

Refining of ideas by consulting it with top management

In the same way, Jacobson (2006) recognized entrepreneurship evaluation as a two-fold process:

Preliminary field testing

Financial viability analysis

Art and Richardson (2007) identified two distinct attributes of intelligence officers in the evaluation phase. Both these features greatly assist in overcoming risks whilst executing the policies. These distinct attributes are:

Creative thinking

Preparation.

They furthermore identified that failure to comprehensively evaluate every aspect of the policy is the major reason for many intelligence policies failures.

Elaborated counterterrorism policy analysis

Art and Richardson (2007) asserted that elaboration is the most difficult part of the entire policy making process. He identified four distinct aspects of success in this phase:

Extended planning covering every aspect of counterterrorism

Constant brainstorming to find solutions to the problems

Constant feedback and testing of ideas

Actual execution of the policy

Both Art and Richardson (2007) highlight two salient attributes of policy makers in the elaboration phase:

Focusing on feedback to initially create and steadily formalize organizational procedures

Focusing on trial and error procedures in order to constantly change procedures to enhance security processes

Resourcefulness in policy making

Resourcefulness is the essence of successful policies. Many scholars have signified that timely availability of both creative and financial resources leads to effective problem solving. Many scholars have given a great deal of emphasis to the creative aspect of counterterrorism policy making. They assert that policy makers have got to get inside the heads of the terrorists to figure out what they plan to do, what their ideology is and how they are going to execute their plans of hurting American interests. Jacobson (2006) provided seven dimensions of creativity, which are as follows:

Imagination;

Spontaneity;

Self-confidence;

Resourcefulness;

Enthusiasm; and Independence.

He asserts that the policy makers should not create rigid process that on one hand discourages independent and on the spot decision making and on the other makes their intelligence gathering efforts into a routine. Instead, he asserts the policy makers should encourage:

Open and friendly to creative thought

Free of disapproval and favorable to out-of-the-box thinking.