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After World War II, the Soviet Union and Warsaw Pact were formed with the intention of creating a coordinated defense to thwart an enemy assault. The world climate was significantly altered by the treaty's collapse in 1991. Transnational problems like economic espionage, terrorism, drug trafficking, money laundering, and the importation of materials for WMDs have caused countries to become more worried. (WMD). Concerns about transnational activities in the US were significantly heightened following the Pentagon and World Trade Center attacks in 2001. Initially, it was the United States courts and law enforcement agencies obligation to monitor activities that happened outside the country’s territorial borders like piracy and smuggling. With increased transnational activities, US had to categorize them as military threats, which led to a more expansive international role for law enforcement agencies. They had to corporate with operational arms of the State and Defense Departments and the intelligence agencies in fighting transnational activity. The September attack prompted the Bush administration to enact an anti-terrorism legislation in October of the same year, which facilitated information sharing between intelligence and law enforcement agencies.
The development and collaboration of intelligence and law enforcement resulted in clouding differences between security policy and law, which have been always distinct. In various occurrences, the tactics used to counter transnational issues appeared to be counterproductive and jumbled. There are some instances when this collaboration seemed to fail. For example, some people argue that the attack on World trade Center and Pentagon in 2001 would have been prevented had there been adequate exchange of information among the agencies.
Potential Congress Concerns
The increase in transnational activities means that the responsibility of the international authority, which is to enforcement of law will continue to develop. As roles of various agencies grow, observers assert that it is important to have a clear distinction between security policy and law enforcement. Moreover, they held that less ambiguous differences in the relationships between the agencies should be considered. According to Grewe (2004), the Congress has the option of concerning itself with how law enforcement and intelligence cooperate. Congress has the responsibility of conducting oversight, budgeting, and policymaking. However, Congress funding and managing of intelligence and law enforcement agencies is so restricted hence may not be modified to sustain the growing and overlapping missions that arose in post-Cold War world. Congress later revised the coordinative mechanisms that were in place but failed to provide legal charters.
The Congress has various committees within it that carries out different functions. The House International Relations Committee and the Senate Foreign Relations Committee is in charge of State Department oversight. The House Permanent Select Committee on Intelligence and the Senate Select Committee on Intelligence oversees intelligence activities. The two Judiciary Committees in the Congress manage law enforcement efforts. Division of responsibilities among the Congress committees has made it challenging to offer unified management of law enforcement and intelligence activities in foreign countries.
Noteworthy challenges are normally arise especially in circumstances which military, intelligence, diplomatic, and law enforcement efforts are closely linked. The likely method that can be used to overcome these challenges is the formation of joint committees or having joint hearings. Absence of distinct line in the responsibilities and mission of intelligence and law enforcement agencies greatly minimizes the efficacy of their efforts resulting in role duplication and waste of resources. Most failures in countering narcotic trafficking have been attributed to minimal use of both law enforcement and intelligence in searching for perpetrators. The September 11, 2001 events led to the Congress removing several barriers that hindered a closer corporation between the Agencies.
Illegal Activities and Transnational Threats
Major transnational activities that happened in foreign countries that had a great impact on US security interests were narcotic smuggling, propagation of WMD, and terrorism. Copyright issues, smuggling, monopolistic competition, and trademark violations may not upsurge to a degree that would institute an honest transnational threat. Illegal activities abroad that threatened the interests of US security may also violate international law. International law can be defined as rules and practices illustrating the relationship between states and between foreign states and private entities. International law itself addresses various criminal activities for which perpetrators can held responsible by foreign countries. International agreements prohibit any type of terrorist activities and human rights violations such as torture, hostage taking, genocide, airplane hijacking, and diplomatic personnel attacks. Crimes of universal nature are punishable by any state. A major terrestrial issue that has attracted the attention of most countries is materials that cab used in WMD. However, it has become challenging internal law to reach an agreement on the exact definition of terrorism due to determination of some international community trying to legalize some activities involved in wars of national liberation ( Fidler, 1994).
Since the attack on US in September 11, 2001, most international communities have shown boundless support for the country’s counter-terrorist deeds. Nevertheless, some groups that the US consider as terrorist still enjoy a wide spread support from various parts of the world. Ironically, some groups and people that have involved in terrorist activities have become leaders of sovereign states. As much as dealing with such types of leaders is abhorrent and distasteful, the US has no choice but to collaborate with some of them to attain key national goals.
Apart from terrorism, narcotic trafficking has been affirmed illegal by various international treaties. Nonetheless, it does not fall under universal jurisdiction since it is not categorized as an international crime. All countries are required to subdue narcotic production and illegal transit. In addition, each state is expected to deal with drug producers and traffickers and respond to any requests for extradition from foreign countries. Unlike torture, piracy, and other particular crimes that have universal jurisdiction, the United States must employ pressure and incentives and depend on diplomacy to inspire other countries to collaborate in fighting illegal drug production and trafficking. In 1989, US military force was used to overthrow the Panamanian dictator, Manuel Noriega, who was also an illegal narcotics trafficker. However, some people observers criticize the use of military force in embargoing drug production and trafficking in other countries. They claim that such actions may have noteworthy damaging effects on other vital interests.
Intelligence Agencies Support Law Enforcement
Many people are in support of the involvement of the intelligence agencies in efforts to carb transnational illegal activities. Intelligence agencies have massive information gathering capabilities that have both human agents and collection systems. According to Cartel, Deutch, & Zelikow (1998), it will make efforts of tracking and bringing narcotic traffickers and terrorists to justice comparatively easy. In most complex and threatening situations, covert actions, which is the role of military strikes and CIA maybe required. Despite the collaboration of the law enforcements agencies and the intelligence services, distinction between their roles must be present to avoid conflict of interest and other challenges. For instance, the 1947 National Security Act that instituted the CIA prohibits the Organization from carrying out law enforcement or internal security services. This act aimed at preventing CIA from encroaching into the responsibilities of the FBI. The act aided in defining the various roles of CIA, FBI, and Office Strategic Service during World War II.
Most activities of the Intelligence Agency in US are carried out in the Department of Defense (DOD). Nevertheless, they rarely involve themselves with matters related to domestic law enforcement. DOD has the mandate to aid law enforcement agencies in countering narcotic production and shipping on condition that they do not involve any military personnel in the arrest and detention of the culprit (Doyle & Elsea, 2012).
Even after officially allowing the corporation of intelligence agencies in fighting terrorism and narcotics, there was still much pressure, particularly from the 94th congress, that wanted a distinction of roles between intelligence and other law enforcement agencies (Grolier, 2002). The criticism and pressure from the congress caused the agencies to be reluctant in forming a closer cooperating in fighting illegal activities. However, the increase in the number of transnational dangers became a matter of concerns not all observers but also the congress. The Intelligence Community, who in recent years has gathered enough intelligence resources, was requested to aid in countering these threats. The Intelligence Community’s role was to collect and tore volumes of data from worldwide. The data was retrieved upon request by court or investigative agency. Data collected by the intelligence is not specifically for law enforcement agencies but has greatly aided in resolving some criminal activity concerns.
In the late 1980s, campaigns for a closer relationship between the law enforcement and Intelligence intensified. This cooperation was necessary in the investigation of a scandal of two international banks, which are Bank of Credit and Commerce International (BCCI) and Banca Nazionale del Lavoro (BNL).
Law Enforcement Agencies Acquire International Missions
The increased transnational threats and the high demand for intelligent information prompted Intelligent Community, especially the FBI to increase the number of its workforce. A four-year plan to increase the number of FBI agents who will work in legal attaché offices of United States embassies around the world was launched (Smith & Lippman, 1996. Offices were opened in Egypt, Pakistan, Israel, Estonia, Ukraine, Poland, Kazakhstan, Czech Republic, Uzbekistan, South Africa, India, and Argentina. The chief role of these offices was to allow the creation of a close liaison among the cops. This was to aid in the exchange of crucial law enforcement data with host country agents. Likewise, the agents were required to foster links to get information in the host countries.
Some of the concerns that arose while expanding the FBI offices to other territories are the overlap of roles especially in countries that have no distinct line between law enforcement and intelligence agencies. The chief of the station or ambassador will deal with duplication of effort, complications, competition, and disagreements issues when they arise
Managing the Intelligence-Law Enforcement Relationship
As stated earlier, the scandal between BNL and BCCI increased demand for Intelligence Service inclusion in the fight against transnational dangers intensified. CIA were unable to provide required data about the banks to the Justice Department officials that prompted for the formation of a Joint Task Force on law enforcement and intelligence in 1993. The chief challenge between the justice department and the CIA as noted by the Joint Task Force was the facilitation of information flow. Therefore, the task force came up with several suggestions on how to promote flow of and retrieval of data (Permanent Select Committee on Intelligence, 1996).
Intelligence and Law enforcement agencies considerably differ in the methods of operation, administration structure, and bureaucratic customs. Law enforcement agencies usually do an investigation when a particular case has been presented to them or received a tip concerning a particular illegal activity, perform trial, and close the case after all appeals are exhausted. Any data collected during the investigation is mostly put to the archives since it has finished its purpose and of no use. On the hand, the intelligence agencies carry out investigations on probable lawbreakers and look research on how to indict alleged criminals in the judicial system (United States Department of Justice, n.d.). The difference in their structure and mode of operation is the principal challenge in achieving closer cooperation between the two agencies.
United States national security policymakers needed an up-to-date and constant flow of data from different parts of the globe, especially from people, groups, or countries that are operating against the interests of the country. Policymakers preferred intelligent information over a specific incident data since the former could be used to address or solve various issues. Therefore, they found it necessary to support a surreptitious intelligence source even if the data collected is full of gossip and rumors and could not hold up in court. Such type of data was used to evaluate the political situation of a particular country that could have a direct influence on interests of United States.
To implement effectively the 1994 assessment of the Joint Task Force proposals, an Intelligence-Law Enforcement Policy Board and a Joint Intelligence-Law Enforcement Working Group was initiated at various levels. The chief role of this coordinative group was to ensure sound exchange of data between the agencies and uphold information integrity. To facilitate flow of information between the agencies, Congress also decided to do away with some statutory embargos that hindered intelligence involvement in countering transnational threats.
The Congress encouraged corporation between intelligence and law enforcement agencies was when they passed the Antiterrorism and Effective Death Penalty Act in 1996. The act was to permit employment of classified data showing terrorists links in extradition hearings of foreigners looking for entrance into the United States. Classified data was to be retrieved from the intelligence or law enforcement sources, which is then disclosed to the foreigner or his/her attorney. Another example of the cooperation between the two agencies is seen in the National Drug Intelligence Center (NDIC) located at Johnstown, Pennsylvania. NDIC role was to avail data from both agencies to the analysts, who will assess and come up with an inclusive account of drug enterprises in that area. In addition, NDCI organized and amalgamated administrative drug intelligence. Moreover, it facilitated valuations of the finances, membership, transportation, and logistics of organizations that dealt in drug trafficking. Congress continued to fund NDIC despite not witnessing any noteworthy success in fulfilling its goals. It is the duty of the FBI to provide counterintelligence and securing all the United States government agencies from interference or penetration of aliens. Likewise, it collects data on any transnational activities that are threatening to the United States. Since the encouragement by policymakers for the agencies to create a closer relationship with one another, the FBI and CIA established long-lasting arrangements that will ease exchange of information on counterintelligence alarms. In 1994, President Clinton established a National Counterintelligence Center (NACIC) whose objective was to manage counterintelligence efforts of different agencies. NACIC staff members comprised of CIA, FBI, DOD, National Security Agency (NSA), and State officers. However, observers criticized NACIC claiming that it did not deal with counterintelligence challenges effectively. In 2001, U.S Counterintelligence Effectiveness-Counterintelligence for the 21st Century (CI-21) was formed whose key functions were to strategically plan, analyze, budget , and collect data. Moreover, CI-21 was to act as a national organization mechanism that cautions the government of any counterintelligence concerns. In 1986, a Counterterrorist Center (CTC), which was initiated within the CIA, had representatives form policy agencies, intelligence agencies, and law enforcement agencies. All these centers were built to simplify exchange of information and maintain data integrity. Likewise, the centers ensured that data collected is used for the intended purpose and prevent persons from using the data to compromise or violate the rights of American residents.
Beyond Information Exchanges: Using Intelligence Agencies in Enforcing Laws
The responsibility of United States government is research on transnational dangers and look for ways of eradicating or reducing them. On the other hand, intelligence agencies collects and analyzes information that aids in countering transnational threats like terrorism, narcotics smuggling and other activities that may have adverse effect on the country. The United States has put in place programs that offer training and technical support to intelligence agencies in other countries. Occasionally, U.S intelligence agencies cooperate with military and law enforcement officials to bring suspected international offenders to the United States for trial. Foreign countries, especially developing ones would desire to have some notorious criminals to be tried in United States to avoid political influence on judgment.
Various departments play a crucial role in countering transnational dangers. For instance, the state department may use pressure or persuasion method on another state to crack down on an alleged offender within the borders of the latter state. In addition, the state department, through law enforcement channels can request formal deportation of a criminal in instances where the supposed violation is of U.S law. There are cases where supposed criminals are taken to United States courts by force. For example, a supposed airline hijacker was captured by FBI agents in the Mediterranean and flown in the United States for trial. Likewise, a nongovernmental group handed over an alleged person who participated in the torture of a DEA agent in Mexico to the FBI without his consent. In 1989, a full-scale invasion of Panama was launched under the directive of President Bush to reinstate the country’s legitimate leadership and demanded the capturing Noriega. Such forcible captures against the will of an individual or consent of a foreign country may obfuscate the two countries relation.
In some cases, the United States force takes upon themselves to prevent and punish terrorism. In 1986, President Reagan of the United States ordered attacks on Libya in retaliation for its participation in bombing a berlin nightclub. In response to intelligence reports on plans to assassinate President Bush by Iraqi terrorists, President Clinton ordered an attack on Iraqi military headquarters. In August 1998, U.S embassies in Tanzania and Kenya were bombed. After carrying out research and founding out the countries behind the bombing, President Clinton responded by ordering that the terrorist training complex in Afghanistan and chemical weapons factory in Sudan be attacked.
From the examples given, it is evident that drug traffickers and terrorists in foreign countries attract either covert action or military strikes. During such actions, intelligence agencies and military forces have to work within the indeterminate framework of the international law that allows countries to operate in self-defense.
Law Enforcement and Intelligence in the War against Terror: The Implications of September 11, 2001
The Bush Administration was in dilemma whether to use military force or law enforcement agencies to address the issue of terrorist attack that took place in September 11, 2001. They first resorted to persuasion method where they tried to convince Afghan government to pursue, arrest, and hand over Osama bin Laden but their efforts were futile. Therefore, the government opted for military action, an approach that was directly approved by Congress by a joint resolution (Elsea, 2005). The Bush Administration also demanded for the passage of statute that will facilitate various authorities to get data on terrorist activities. Moreover, the administration pressed the authority to give intelligence agencies any foreign data gotten from grand jury disclosures and criminal investigations. The later request faced a lot of criticism. Some observers argued that making available such sensitive information to the intelligence is not in order. Data confidentiality may be compromised when unauthorized persons access the information.
The USA-Patriot Act was enacted to simplify restrictions that were outlined in the Foreign Intelligence Surveillance Act. In the USA-Patriot Act, changing information technologies such as pen registers, trap and trace authorities, and roving surveillance was allowed. In addition, it allowed the exchange of foreign intelligence data from law enforcement agencies to intelligence agencies as long as it is in harmony with guidelines established by the Attorney General (Bazan, 2005). Foreign terrorists’ information acquired from the law enforcement will aid intelligence agencies analysts to evaluate the data and come up with probable individuals or groups that are planning to attack United States. The authority will then use a suitable reaction chosen from various available options that will counter the challenge posed. Some of the responses used are diplomatic protests, military strike, and covert action. The responses aim at arresting the alleged offender, extradition of an alleged offender in an alien country to face trial in United States courts, or the destruction of training camps and military centers. Any response chosen has pros and cons, however, the government will still employ it as long as it reduces or completely clears the danger (Gauthier, 2002).
The realities that emerged during post-cold war made the government of the United States to review the roles of its intelligence and law enforcement agencies. In the following years, various coordinative mechanisms and centers were created to aid draw a distinct line between the different agencies roles and at the same time facilitate a closer relationship among the agencies.
Some observers claimed that the uncertain situation that popped up during post-cold war should be permitted to develop practically before establishing any legal structure for closer relationship between law enforcement and intelligence agencies. However, other people claim that the roles and missions of these two agencies should be distinctively defined to avoid overlap and confusion and demanded for a greater congressional oversight over the same. Furthermore, they argued that closer relationship between the two agencies would aid in solving complex jurisdictional challenges and other responsibilities while working as a single entity especially on matters of security may become difficult. Even before the end of cold War, an increase in the number of transnational threats was witnessed. In response to such dangers, the government of the United States was required to implement international law and extraterritorial domestic laws. Most people agree that a country’s security is the backbone for the development of its economy. It was a challenging task for policymakers to decide on who among the defense, enforcement agencies, and intelligence agencies will be responsible for handling transnational dangers. They had to make some compromises and involve both agencies in dealing with the issue at hand.
A major reevaluation of the relationship and exchange of information between law enforcement and intelligence took place after the events of September 2001. After realizing that terrorism and narcotic trafficking are real threat to the nation, Congress decided to remove barriers that hindered the flow of information among the agencies. The hunt of the Al Qaeda network was prompted the congress to pass an act that will allow utilization all information collected by military, intelligence, and law enforcement agencies.
Bazan, E. B. (2005). The Foreign Intelligence Surveillance Act: An Overview of the Statutory Framework and Recent Judicial Decisions. Ft. Belvoir: Defense Technical Information Center.
Carter, A., Deutch, J., & Zelikow, P. (1998). Catastrophic Terrorism: Tackling the New Danger. Foreign Affairs, 77(6), 82. doi:10.2307/20049132
Doyle, C., & Elsea, J. (2012). The Posse Comitatus Act and related matters: The use of the military to execute civilian law. Washington, DC: Congressional Research Service, Library of Congress.
Elsea, J. (2005). Terrorism and the law of war: Trying terrorists as war criminals before military commissions. Honolulu: Congressional Research Service.
Fidler, D. (1994). ON INTERNATIONAL LAW AND NUCLEAR TERRORISM. GEORGIA JOURNAL OF INTERNATIONAL AND COMPARATIVE LAW, 24(1), 100-120. doi:10.4337/9780857938817.00013
Gauthier, A. (2002). Access to terrorism proceedings. Arlington, VA: Reporters Committee for Freedom of the Press.
Grewe, B. A. (2004). Legal Barriers to Information Sharing: The Erection of a Wall Between Intelligence and Law Enforcement Investigations.
Grolier, M. S. (2002). Perspectives on intelligence. Hauppauge, NY: Nova Science Publishers.
Permanent Select Committee on Intelligence. (1996). IC21: Intelligence community in the 21st century : staff study. Washington: U.S. G.P.O.
Smith, J., & Lippman, T. (1996, August 20). FBI PLANS TO EXPAND OVERSEAS. The Washington Post.
United States Department of Justice. (n.d.). 9-90.000 - National Security. Retrieved from https://www.justice.gov/usam/usam-9-90000-national-security
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