Revamping national intelligence
The following is a guest post by Samuel Rascoff, an assistant professor at New York University School of Law, was Director of Intelligence Analysis for the New York City Police Department from 2006 to 2008. His article, “Domesticating Intelligence,” appears in the current volume of the Southern California Law Review. The opinions expressed are his own.
The nation’s intelligence apparatus continues to mushroom, flush with sustained post-9/11 budget increases, creating a state within a state. In what a series of recent reports in the Washington Post refers to as Top Secret America, contractors and officials working in a vast array of suburban office parks populate a government behemoth in which inefficiencies and redundancies are rife, transparency is scant, and meaningful oversight is impossible.
The specter of massive invasions of privacy and basic rights looms larger than ever. But, the man awaiting Senate confirmation to be the latest Director of National Intelligence, Lt. Gen. (Ret.) James Clapper, could change all that.
The DNI position was created five years ago to address previous intelligence failures and manage the sprawling intelligence bureaucracy. Unfortunately, it is widely regarded as lacking the budgetary and political clout to fulfill the much-needed mission. So, failure seems inevitable. But it doesn’t have to be.
One important solution to our intelligence woes is hiding in plain sight. Simply put, we should subject our intelligence and national security programs to the same cost-benefit analysis that we have applied for a generation to all of our domestic agencies, from the FDA to the EPA. The best national intelligence is rational intelligence, and the tools are at hand to achieve that.
Cost-benefit analysis – predicated on the simple and appealing idea that government policies ought to produce more benefit than harm – came to play a central role a generation ago with President Reagan’s Executive Order 12,291. Subsequent presidents from both parties have tweaked that order, but its core purpose has been retained ever since. It empowers an obscure but enormously consequential office within the Office of Management and Budget to assess the value all major proposed agency rules and then supervise them once they are in place.
Proposed rules whose costs are deemed to outweigh their benefits are prevented from taking effect. Equally important, the Reagan-era innovation provides a centralized process for unifying the administrative state and addressing governmental bloat, specifically tasking OMB officials to identify and address proposed new regulations that are “duplicative, overlapping, and conflicting” with existing ones.
Subjecting our intelligence agencies to cost-benefit analysis and having the DNI spearhead that effort would help address some of the rampant wastefulness in our current intelligence bureaucracy. Going through the discipline of trying to cost out the pros and cons of various programs would streamline the intelligence process and produce better results. If, as the old adage has it, you can only manage what you measure, cost-benefit analysis would represent an important first step to bringing accountability to the intelligence bureaucracy.
Duplicative intelligence work is not merely costly in terms of dollars misspent. It can carry a price-tag measured in innocent lives lost, as well. For a counterterrorism official who may need to make a tough judgment call on a moment’s notice, drowning in a sea of intelligence reports is functionally no better than being forced to make a decision without critical information.
History amply attests that an unsupervised intelligence arm, in which surveillance expands well past the purpose for which it was initiated, represents a significant threat to our freedoms. From the FBI’s notorious COINTELPRO to the infamous red squads deployed by large municipal police departments, ungoverned intelligence has frequently implied officially sanctioned lawlessness.
Concern about civil liberties is especially warranted as terrorism increasingly possesses a domestic link, and as more and more spying necessarily goes on in our own backyard. So once intelligence programs have served their purpose, they should be terminated.
The good news is that the DNI possesses the requisite authority to carry out cost-benefit analysis. It is also encouraging to hear Gen. Clapper insist that he intends to “push the envelope … on whether those authorities can be broadened.” In order for him — and for future DNIs — to succeed, it is vital that they learn from the way we have effectively run the rest of our government agencies for the last thirty years.