L. Gordon Crovitz examines the so called “intelligence failures” of the Christmas Day terrorist attack over at the WSJ and finds the problems lies more with the Obama Administration’s “domestic law enforcement” approach (or as it used to be termed–the pre-9/11 mentality) than failures of the CIA and other intelligence agencies to connect the dots. He writes: 

The difference between law-enforcement procedures and preventing terrorism could not be clearer. If a well-respected banker takes the initiative to come to a U.S. embassy in Nigeria to report that he thinks his son is a terrorist, we expect intelligence officers to make “hunches,” such as that this person should have his visa reviewed and be searched before getting on a plane. Information is our defense against terrorism, but evidence of terror plots is often incomplete, which is why intelligence requires combining facts with hunches. 

But, as Crovitz explains, hunches are not allowed.  In testimony given to the Senate Homeland Security Committee, FBI Terrorist Screening Center (TSC) head Timothy Healy explained just how the TSC’s “reasonable suspicion” standard works and how U.S. intelligence agencies decide when to put suspected terrorists on a watch list or a no-fly list. 

“Reasonable suspicion requires ‘articulable’ facts which, taken together with rational inferences, reasonably warrant a determination that an individual is known or suspected to be or has been engaged in conduct constituting, in preparation for, in aid of, or related to, terrorism and terrorist activities, and is based on the totality of the circumstances. Mere guesses or inarticulate ‘hunches’ are not enough to constitute reasonable suspicion.” 

If this sounds like legalistic language, it is. Indeed, a quick Web search was a reminder that this language is adapted from Terry v. Ohio, a landmark Supreme Court case in 1968 that determined when Fourth Amendment protection against unreasonable searches allows the police to frisk civilians or conduct traffic stops. In other words, foreign terrorists have somehow now been granted Fourth Amendment reasonableness rights that courts intended to protect Americans being searched by the local police. Thus was Abdulmutallab allowed on the airplane with his explosives. 

Crovitz concludes this by showing exactly what happens when Intelligence officers and analysts aren’t allowed to act on hunches, or feelings or former experience.  

The result of prohibiting hunches was that Abdulmutallab was waved through. Information about suspected terrorists flows into a central Terrorist Screening Database, which is then analyzed by the Terrorist Screening Center, where FBI agents apply the “reasonable suspicion” standard to assign people to various watch lists including “selectee” lists and the “no-fly” list. It’s at this point where an approach based on domestic law enforcement trump prevention, undermining the use of information.