NYTimes.com Article: The 9/11 Report: A Dissent

[David Farber <dave () farber net>]

The 9/11 Report: A Dissent

August 29, 2004
 By RICHARD A. POSNER





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.



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

http://www.nytimes.com/2004/08/29/books/review/29POSNERL.html? 
ex=1094665466&ei=1&en=8fe5b7713d54e18d


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