The new USA PATRIOT Act has brought into being an unprecedented merger between the functions of intelligence agencies and law enforcement. What this means might be clearer if we used the more straightforward term for intelligence–that is, spying. Law enforcement agents can now spy on us, "destabilizing" citizens, not just noncitizens. They can gather information with few checks or balances from the judiciary.
Morton Halperin, a defense expert who worked with the National Security Council under Henry Kissinger, worried in The New Yorker that if a government intelligence agency "thinks you're under the control of a foreign government, they can wiretap you and never tell you, search your house and never tell you, break into your home, copy your hard drive, and never tell you that they've done it." Moreover, says Halperin, on whose phone Kissinger placed a tap, "Historically, the government has often believed that anyone who is protesting government policy is doing it at the behest of a foreign government and opened counterintelligence investigations of them."
This expansion of domestic spying highlights the distinction between punishing what has already occurred and preventing what might happen in the future. In a very rough sense, agencies like the FBI have been primarily concerned with catching criminals who have already done their dirty work, while agencies like the CIA have been involved in predicting or manipulating future outcomes–activities of prior restraint, in other words, from which the Constitution generally protects citizens.
The events of September 11 were a tremendous failure of intelligence, as well as a monumental embarrassment for law enforcement. At the same time, we must not allow our sense of helplessness in a teetering, unruly world to distort us. In startling numbers, Americans suddenly seem willing to embrace profiling based on looks and ethnicity; detention without charges; searches without warrants; and even torture and assassination. We want to open up the hearts of those all around us, peer in and see for ourselves what evil lurks in the hearts of men, women and neighbors. But the difficult reality is that no such measures were apt to have revealed the World Trade Center hijackers; no such measures were likely to have prevented Timothy McVeigh's bombing of the federal building in Oklahoma City.
Prophesying wrongdoing, particularly of those with no history of mental illness or violent criminality, is guesswork at best. No one foresaw the attacks on the World Trade Center because well-financed, professionally trained operatives spent years planning, strategizing and coordinating that effort. The sad and unpalatable truth is that preventing surprise attacks of that sophistication may never be possible. If the risk ever could be reduced, it will require not so much the identification of "suspect" profiles but the kind of cross-cultural fluency and diplomatic skill of which the intelligence community has confessed it has an unfortunately short supply.