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Calibrating Domestic Intelligence at the 20-Year Mark

The divide between foreign and domestic intelligence, while grounded in legitimate civil liberties concerns, can inhibit detection of transnational threats.

As the 20-year anniversary of the attacks on 9/11 passes, decision-makers are once again faced with questions of “intelligence failure” and problematic information-sharing between security entities. This time the questions are raised by the insurrection on January 6. Some questions are how much and when intelligence agencies and law enforcement became aware of plans for the insurrection, how well they shared this information, who acted in response and how, and what, technology was used. As Congress begins its investigation into those activities, we address some fundamental questions that have arisen in their wake.

The attacks on 9/11 catalyzed the creation of a new agency – the Department of Homeland Security – which was a hastily organized amalgam of 22 disparate agencies. It also introduced the term “homeland” in the security lexicon, and the topic of domestic intelligence into the discourse on national security. Domestic intelligence is an uncomfortable concept for many – traditionally, as the trope goes, intelligence is something we do “over there,” not here in the United States, and certainly not directed toward American citizens. By understanding the scope of domestic intelligence and the complications that arise when collecting and analyzing intelligence in the United States, we can better understand the evolution, current state, and potential future course of domestic intelligence activities.

What Is Domestic Intelligence?

At a conceptual level, “domestic intelligence” in the United States has been defined by what it is not – that is, essentially collection of intelligence other than foreign intelligence. More specifically, domestic intelligence has been defined by one scholar, Gregory Treverton, former Chair of the National Intelligence Council, as “efforts by government organizations to gather, assess, and act on information about individuals or organizations in the United States or U.S. persons elsewhere that is not necessarily related to the investigation of a known past criminal act or specific planned criminal activity.”

Domestic intelligence broadly refers to intelligence activities related to internal national security, focusing on issues such as  crime, disorder, terrorism, and insurrection. In the post-9/11 security environment, the term has increasingly come to mean intelligence concerning homeland security, specifically engaging with the problem of fighting the threat of terrorism. Domestic intelligence supports decision-making at multiple levels – ranging from the tactical to the strategic – that focuses on internal threat. The Intelligence Community has long de-emphasized the use of the intelligence function within the United States because of political history and sensitivity.

The State of Domestic Intelligence

Domestic intelligence in the United States is complicated by ambiguity and overlapping systems. This is the result of historical controversies, as well as the atomization inherent to federalism. The confluence of diverse threats and politicization, exemplified, for example, by the partisan reactions to the Jan. 6, 2021, U.S. Capitol insurrection, further intensify the problems of conducting effective domestic intelligence. Part of this complexity results from the broad range of decision support domestic intelligence is expected to provide. For example, at the tactical level, police and emergency responders require threat information to interdict and mitigate attacks or humanitarian consequences of intentional, technological, and natural disasters, such as terrorist attacks, hazardous materials incidents, and wildfires. Further, police must understand crime trends and indicators of potential epidemiological outbreaks such as COVID-19.

Operationally and strategically, emergency managers and state, local, tribal, and federal governments require similar information, but also broader contextual awareness of issues impacting populations, such as security, economic stability, and governance. In addition, federal agencies need information to manage support to the states, protect federal entities, and ensure a bundle of functions collectively known as homeland security. These range from border security issues, organized crime, maritime and port security, aviation security, emergency response, and emergent threat warnings. Security priorities guide intelligence collection and analysis and the organization of the national enterprise. Financial and legal factors complicate matters as agencies vie for turf, resources, and prestige.

At the federal level, domestic intelligence is divided between DHS and the FBI, with some tactical intelligence at other agencies such as DEA for narcotics, for example. As a result of this division, domestic threat information can become obscured, either by legal constraints or bureaucratic hurdles. This can lead to agencies minimizing or even ignoring emerging threats such as domestic violent extremism, or remaining unaware of the convergence between intersecting threats, for example the relationship between crime and terrorism. Agencies also aim to avoid domestic political challenges adjacent to First Amendment activity. This is understandable, as there is a constitutional basis for limiting intelligence collection directed against political speech. Yet these protections don’t justify overlooking crimes.

Concerns about domestic activities in the American democracy have deep roots. The COINITELPRO (Counterintelligence) program, run by the FBI between 1956 and 1971, and similar efforts by the CIA and NSA were investigated and exposed by two congressional committees – the Church and Pike Committees – and reforms were instituted, resulting in the creation of dedicated intelligence oversight committees and a firmer delineation between foreign and domestic intelligence. Clearly, Fourth Amendment issues related to surveillance are important; they are already a core issue in domestic policing. Both wiretaps and other forms of electronic surveillance – including mass surveillance – require warrants under both federal law and the laws of the various states.

The divide between foreign and domestic intelligence, while grounded in legitimate civil liberties concerns, can inhibit detection of transnational threats involving networked foreign actors operating in conjunction with domestic criminals and extremist actors. Further, partisan political influences and sympathies for extremism complicate the current political dynamic. Preserving civil liberties, however, is not a glitch in the system. It is the core of the American experiment. Nevertheless, there is a need to balance liberties and security. In large measure, this is why domestic intelligence must be more than a federal effort. Domestic intelligence has always existed at the state, local, and federal levels. The focus on domestic intelligence as a federal function ignores that and is part of the reason state and local efforts are incohesive.

State and local authorities conduct intelligence (usually criminal and public order intelligence). The public order intelligence is actually better suited to local efforts since the operational issues related to protests and riots are local responses since law enforcement is primarily a state and local function. That operational need for public safety (the police function of the state) resides with state and local law enforcement agencies – police and sheriff’s departments – in our tradition. This is reinforced by practice and the Tenth Amendment.

Local police are, arguably, better suited to monitoring public order issues, but like their federal counterparts often lack the skills and ability to address the gaps that arise from networked actors that go beyond speech into criminal activity. This does not mean that local police are immune from abuses as seen in current controversies, such as the George Floyd protests, over police use of force in reaction to protest. This is natural since they are at center of policing so therefore opportunities for abuses are ever-present. Add to this historical abuses such as the Red Squads and repressive police operations in America’s cities during the 1960s-70s.

Additional complications include the reactive nature of decision-making in this sphere. Current intelligence for crisis management dominates tasking and prioritization of effort. Little or no appreciation of warning and strategic foresight exists as agencies focus on the demands of the current news cycle. This in turn leads to an ineffective intelligence-operations interface and fusion. The emphasis on federal requirements with little comprehensive understanding of the needs and drivers of state, local, and tribal intelligence, when combined with an emphasis on bureaucratic players rather than holistic mission needs of the diverse communities, leads to a fragmented approach.

The current situation relies upon a national network of fusion centers at state and local levels. Fusion centers have a controversial history. Uneven performance, as well as privacy and human rights concerns, and accusations of political partisanship are continuing concerns. In many cases, the lack of domain expertise leads to an emphasis on investigative support rather than predictive intelligence. Information-sharing rather than the production of intelligence dominates the domain.

Collectively, these challenges were exemplified in the difficulties seen in anticipating and addressing the January 6 insurrection and its related sequence of events, including drivers such as political instigation and propaganda networks, including alt-right actors, conspiracy theorists (QAnon), and foreign information operations. Add to this existing threats – traditional right-wing and anti-government extremists, militias, white supremacists – and emerging threats including hybrid left-right-wing actors, and resistance to government action to contain the COVID-19 pandemic, and climate change. A lack of cohesive standards, transparency, legal and public oversight complicate these factors.

9/11 and Stalled Intelligence Reform

As we assess domestic intelligence 20 years after the attacks on 9/11, it is clear that the United States is facing a range of new threats as well as further and fast development of the ones that drove the reform and realignment efforts after the attacks. As is oft-mentioned, cyber – including artificial intelligence and robotics – permeates all aspects of society and further elides the old boundaries of foreign/domestic and public/private. Large-scale, border-spanning, global challenges are on the rise, such as climate change, environmental degradation, and pandemics. Transnational crime is evolving as technology develops, empowering nontraditional actors in the international system at an alarming rate. Where do we go from here?

It has become commonplace to suggest, after the fact, relying on the assertions from the 9/11 Commission, that the attacks on 9/11 were the result of the failure to share information, connect the dots, or have the appropriate level of imagination to pre-empt the attacks. It is, however, much harder to build a structure to withstand the as-yet unknowable than it is to perform a postmortem. This is the conundrum of intelligence. 9/11 rightly focused efforts on detecting foreign terrorist threats but, in doing so, inadvertently minimized continuing surveillance of domestic threats, despite being only six years after the Oklahoma City bombing. Overemphasis on foreign threats was part of the problem but the law enforcement agencies should have already been addressing public order issues.

The domestic intelligence domain is once again in need of significant reform – a reform that remains largely unfinished after the initial impulse to build new capacity after 9/11. The current system created and funded centers but did not provide the training and doctrine needed to effectively bring the local perspective(s) to the table. By framing the initiative as an information-sharing issue we missed the opportunity to develop an effective and comprehensive national domestic intelligence network. By framing domestic intelligence as a federal issue, the necessary local responsibility and accountability is diminished. This allows local authorities to elude responsibility and pass the buck to the federal agencies. When federal agencies intervene, which may be appropriate when there are national dimensions to the threat, they can misread local conditions and actors. When the speech issues are politicized and manipulated by the executive they cripple intelligence efforts, lead to improper and disproportionate responses – including both inaction or overreaction.

The results of the early reform efforts were uneven. Currently, there are still significant levels of bureaucratic competition, for example, between the FBI and DHS, where roles are often competing and duplicative. Further, fusion centers still lack unified network standards in terms of common training, doctrine, and defined standards for multi-lateral communication and the “co-production of intelligence.” Finding the appropriate balance among civil liberties, privacy issues, and security is a challenge, but one that can successfully be addressed to meet core constitutional requirements and the reasonable expectations of all Americans. Beyond these operational issues, there are the problems of increasing extremism within policing and the military, and the role of social media in expanding exposure to mis- and disinformation. Partisanship imbues a wide range of aspects of society at this point, from education to public health, to how we construe an existential threat.

The Future

The need to examine domestic intelligence in a holistic, national – rather than federal – framework remains. It is time to revisit the network architecture of a national ‘domestic’ intelligence capacity on functional and operational levels. Also, considering change in the area of domestic intelligence requires a fundamental shift from the mindset of 20 years ago – a mindset that has hindered adaptation to the emergent domestic threat. Built deeply within the domestic threat picture of the past 20 years has been the stark image of the Islamic terrorist. This has allowed the American polity to construe an adversary, which can easily be “othered” when countermeasures are concerned. Increasingly, this picture may miss the mark, as it must expand to include all American citizens. The future is already here. It is dominated by threat convergence where multiple threat streams, such as crime and terrorism (the crime-terror nexus), exist and amplify potential threats.

This convergence also includes blurring the lines between domestic and global threats. The existence of globalized networks of non-state actors – such as global alt-right extremism –complicates matters. Domestic agencies are restrained by law on addressing issues of speech and assembly. These First Amendment concerns are the cornerstone of our political process. Yet hate speech, amplified by social media, and propaganda manipulated by foreign intelligence disinformation campaigns empowers extremists and elevates potentials for violence. Domestic terrorist threats now compete with foreign – jihadist – terrorism for attention and resources. Global threats have local implications that in turn influence the global security arena (that is, they have global-local-global manifestations). Multiple threats demand ubiquitous monitoring, prioritization, and a recognition of synergetic and cascading effects. Cyber issues including artificial intelligence (AI) and robotics – both threat and capabilities – increasingly permeate everything. Additional concerns include climate change, environmental degradation, pandemics, state fragility and transition (including internal strife and migration pressures). Transnational crime complicates matters serving as a both a standalone threat and amplifier for other threats.

Conclusion: The Way Forward

Addressing the current and future threat landscape demands a reassessment of the domestic intelligence architecture. This will require a comprehensive critique of the post-9/11 threat response, the state of domestic intelligence functions at all levels, and an assessment of current, evolving, and emerging threats. All relevant stakeholders need a voice in this assessment. That includes state and local law enforcement, other public safety agencies, the medical public health communities, state and federal legislators, and civil society (including civil rights, privacy, and human rights concerns). Surveillance, privacy, and equitable distribution of justice under the rule of law must be balanced with the complex threat environment. We can start with a comprehensive assessment of the attack on the Capitol and efforts to obscure and erase recognition of the underlying threat. Multilateral/networked adversaries and networked responses, including the co-production of intelligence, rather than mere information-sharing, must be explored.

The way forward would first involve impaneling a national commission to look at these efforts.  This effort could examine the entire scope of domestic intelligence, look at the state of fusion centers, and assess foreign experiences with domestic intelligence and public order. It could also look at effectively integrating domestic intelligence into the overall national intelligence framework, along with providing an evaluation of the politicization of intelligence and potential mechanisms for bridging responses to domestic, international, and transnational terrorism.

This reassessment must look at oversight, transparency, privacy concerns, the rise of new technology, counterintelligence, and the growing connections between domestic and global threats, such as the rise of global networks composed of authoritarian states and violent non-state actors. The suitability of current organizational roles, including potential reforms to fusion centers, and the potential role and model for a new domestic intelligence service is once again a necessary. The time for this examination is now; the threat(s) won’t wait.

 

The views expressed herein are those of the author(s) and do not necessarily reflect the official policy or position of the U.S. Army War College, Department of the Army, or Department of Defense.

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Genevieve Lester and John P. Sullivan
Dr. Genevieve Lester is the De Serio Chair of Strategic Intelligence at the US Army War College. She is also an associate fellow for strategic intelligence at the International Institute for Strategic Studies (IISS). She was visiting faculty and faculty coordinator of both intelligence studies and analytic methods at the Security Studies Program, School of Foreign Service, Georgetown University as well as a senior fellow at the Center for Security Studies also at Georgetown. She writes on intelligence and accountability and is the author of When Should State Secrets Stay Secret? Accountability, Democratic Governance, and Intelligence (2015). Lester served as a research fellow for counterterrorism at the International Institute for Strategic Studies, and as an editor of the journal, International Affairs, based at Chatham House in London. She was also Fulbright Scholar at the Technical University in Berlin. She holds a PhD and MA in political science from the University of California, Berkeley, a MA in international economics/international law and organizations from Johns Hopkins Paul H. Nitze School of Advanced International Studies, and a BA in history from Carleton College. Dr. John P. Sullivan is a Homeland Security Today contributing editor. He served as a lieutenant with the Los Angeles Sheriff’s Department; specializing in emergency operations, transit policing, counterterrorism and intelligence. He is an Instructor in the Safe Communities Institute (SCI) at the Sol Price School of Public Policy - University of Southern California, Global Fellow at Stratfor, Senior El Centro Fellow at Small Wars Journal, and Member of the Scientific Advisory Board of the Global Observatory of Transnational Criminal Networks. In addition, he is a member of The InterAgency Board for Emergency Preparedness and Response. His doctoral dissertation at the Open University of Catalonia examined the impact of transnational crime on sovereignty. His current research focus is terrorism, transnational gangs and organized crime, conflict disaster, intelligence studies, post-conflict policing, sovereignty and urban operations.

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