<html><body>U.S. Intelligence Reform and the WMD Commission Report May 4, 2005 Unedited transcript prepared from a tape recording. <TABLE width="100%" border=0> <TBODY> <TR> <TD width="20%">11:45 a.m.</TD> <TD width="80%" colSpan=2>Registration </TD></TR> <TR> <TD width="20%"> </TD> <TD width="23%"> </TD> <TD width="57%"> </TD></TR> <TR> <TD width="20%">Noon </TD> <TD width="23%">Lunch </TD> <TD width="57%"> </TD></TR> <TR> <TD width="20%">12:30 p.m.</TD> <TD width="23%">Presenters:</TD> <TD width="57%">Judge Laurence H. Silberman, co-chairman, Commission on the Intelligence Capabilities of the United States Regarding Weapons of Mass Destruction</TD></TR> <TR> <TD width="20%"> </TD> <TD width="23%"> </TD> <TD width="57%">Judge Richard Posner, U.S. Court of Appeals for the 7th Circuit</TD></TR> <TR> <TD width="20%"> </TD> <TD width="23%">Discussants:</TD> <TD width="57%">Tom Corcoran, Senate Select Committee on Intelligence</TD></TR> <TR> <TD width="20%"> </TD> <TD width="23%"> </TD> <TD width="57%">Lindsay Moran, former CIA case officer </TD></TR> <TR> <TD width="20%"> </TD> <TD width="23%">Moderator:</TD> <TD width="57%">Reuel Marc Gerecht, AEI</TD></TR> <TR> <TD width="20%"> </TD> <TD width="23%"> </TD> <TD width="57%"> </TD></TR> <TR> <TD width="20%">2:00</TD> <TD width="80%" colSpan=2>Adjournment</TD></TR></TBODY></TABLE> Proceedings: MR. GERECHT:  I want to welcome everybody here today to a general discussion on intelligence reform and a very specific conversation on the WMD Commission report, known perhaps better as the Robb-Silberman report. We are very honored to have with us here today Judge Silberman, who will give us his insights.  He co-chaired this Commission with former Senator Chuck Robb.  And for any of you who have read both the 9/11 Commission report and this one, I think you will quickly see that this is a much more serious work.  Its critiques and recommendations I think are vastly more thoughtful than what was in the 9/11 Commission's report.  And even though I and perhaps others here today may have a few reservations about some of the discussion and recommendations in the Robb-Silberman report, it does not belittle in any way, I think, the enormous work and thoughtfulness that went into this effort. In addition to Judge Silberman, I'm also very pleased to welcome Judge Richard Posner.  I think he has written, beyond a shadow of a doubt, the most definitive book certainly critiquing the 9/11 Commission report.  It is called "Preventing Surprise Attacks:  Intelligence Reform in the Wake of 9/11."  It grew out of a sublimely good and scorching review that was done of the 9/11 Commission report in the New York Times.  The only criticism I could possibly give of Judge Posner's commentary is that he was perhaps too kind. We are also very fortunate to have here Tom Corcoran from the Senate Select Committee on Intelligence.  Many people don't realize it, but the professional staff at the Senate Select Committee actually has been consistently one of the few places in the American Government where you can have a thoughtful, interesting, and honest discussion about the state of American intelligence.  And I'm very, very pleased that Tom is here today. And last but not least is Lindsay Moran joining us.  She is the author of "Blowing My Cover:  My Life in the CIA (and Other Misadventures)."  I have to say that when I read Ms. Moran's book, particularly her discussion of training and time down at the farm, it brought back memories for me from when I was there during the Reagan years.  And it certainly proves beyond a shadow of a doubt, as the French would say, "Plus ca change, plus c'est la meme."  It was very, very amusing to see, in fact, how unrelentingly surreal and mediocre the training has remained, and it brought endless enjoyment to me while reading it.  In fact, I just have to say that just the digression of having case officers today train for fighting Middle Eastern terrorism in the swamplands of Virginia should give you some idea of how serious the agency has so far taken this. So with that commentary, I'm going to turn over the podium to Judge Silberman. [Applause.] JUDGE SILBERMAN:  I didn't know I got the podium. Thank you very much.  I have to start with an explanation of my anomalous role.  I am at the moment both an Article II appointee and an Article III appointee, which I wouldn't have thought some years ago was possible.  But it turns out that senior judges, according to the Judicial Canons of Ethics, are permitted to take appointments in the executive branch.  And that appointment I believe still continues until the end of May, maybe early June.  But for that, I might be more hesitant to express policy views. Now, on the other hand, my colleague Judge Posner has a broader view. [Laughter.] JUDGE SILBERMAN:  The Commission had basically two functions.  The first function was to look back and to see how the intelligence community had done with respect to Iraq, Libya, and Afghanistan particularly, but also other areas, and compare what we knew later with what the intelligence community had assessed beforehand.  In Iraq, of course, we had a particular--both Iraq and Libya, and Afghanistan, we had particular grounds to look at what we discovered afterwards and compare with what we assessed or knew before. But we did not evaluate the intelligence community based on an after-acquired knowledge, rather on what they had beforehand, how well their collection worked, and, more importantly, how well they evaluated what they had.  And although certainly we concluded that the collection with respect to Iraq was inadequate, primarily we saw a failure of analysis. It would have been eminently justifiable to have told the President and the Congress that it was likely that Saddam had weapons of mass destruction based on his past use, insufficient indications of destruction, and his deceptive behavior.  But we thought the intelligence community made a grave, grave mistake in concluding that there was a 90-percent degree certainty that he had weapons of mass destruction.  And it was a grave mistake not based on hindsight.  It was a grave mistake when we went back and looked at the material they had before them at the time. The evidence was completely frail, some quite faulty, and their trade craft wasn't good.  Moreover, there was such an abysmal lack of internal communication within the intelligence community that often the left hand didn't know what the right hand was doing, which led to some grave mistakes. Now, there are three specific areas I'll mention:  nuclear, BW, and chemical. On nuclear weapons, almost entirely the conclusion that Iraq has reconstituted its nuclear program was based on its importation of aluminum tubes.  For those of you who have read the report--and I assume that's everybody in the room--you know that it's almost shockingly wrong to conclude that those aluminum tubes were appropriate or designed for centrifuges for nuclear weapons.  They were, in fact, perfectly appropriate for rockets.  Indeed, they had been made by the Italians for that purpose.  And the Americans had used rockets--tubes for similar rockets. The very organization within the Defense Department that is supposed to specialize in evaluating and understanding foreign weapons made an incredible mistake about this, and we have made that point clear in the report.  Beyond that, the other parts of the intelligence community really, really badly handled the question of aluminum tubes. Then on BW, we have the Curveball incident.  And anybody who looks at that Curveball incident has to conclude it's a comedy of errors.  There is a classic example of the left hand not knowing what the right hand does.  But as you know from our report, the existence of biological weapons is almost entirely based--almost entirely based on the intelligence information from one source--Curveball--which came from a foreign liaison.  We never got access to them.  We didn't try, in our judgment, anywhere near hard enough to get access.  But beyond that, people in the CIA were told by representatives of that foreign intelligence agency that they thought it was--at least some of them thought he was a fabricator, and that information never got up, arguably, senior enough in the intelligence community, and certainly never got to Colin Powell, who relied so heavily on it in the United Nations. And, finally, on chemical weapons, really extraordinary.  We thought there was a resurgence of the development of chemical weapons because we saw more pictures of tanker trucks which we thought were designed for chemical weapons.  Now, we were wrong about that, but it was a legitimate mistake to think that those trucks were designed to help the production of chemical weapons. What was unforgivable is that the analysts didn't realize we had more pictures of those trucks because we were taking more pictures.  The analysts and the collectors never talked about that together. Now, one other small point before I go on is it has been suggested by such eminent critics as my old friend and colleague Dick Posner that our report is too harsh and it will hurt the morale of the intelligence agencies, particularly the CIA, of which he is devoted. [Laughter.] JUDGE SILBERMAN:  My reaction to that is we're at war.  We're at war.  If the American Army had made a mistake anywhere near as bad as our intelligence community, we would expect generals to be cashiered, as we did in North Africa after the disaster when Rommel clobbered the 2nd Corps.  We would expect inquiries, and we would expect a much tougher reaction.  If our intelligence community is so frail that this criticism--which I think is legitimate--impairs their morale, we're in even greater trouble than I thought. Now, to the Commission's activities.  We initially hoped to focus on granular issues--culture, incentives, trade crafts--and stay away from organizational questions.  To a certain extent, events forced us to consider organizational questions earlier. Our job was to look at the past, these past mistakes, but also to consider all the reform suggestions that had been made over the last 20 years and evaluate them.  That was part of our function, and to think about any other reforms that we thought were a good idea. We wanted to hold off on the organization issues because, as is so often true in Washington, the organizational box changes tend to attract all the news interest and people don't focus enough on the granular issues. But, of course, once the 9/11 report came out and Dick wasn't able to stop the Congress from rushing to legislate, despite his cogent criticism, we were forced to treat this as facts on the ground, or as we said in the report, deus ex machina.  And after that, it became more difficult to think about organizational questions without regard to trying to make sense out of the legislation. Initially, many of us were inclined to a lighter coordinating role for a senior intelligence official, but, of course, the legislation forced us to think in terms of a different structure.  And, secondly, the more we looked at the intelligence community, the more we looked at mistakes made in the past, the more we realized that there were two fundamental problems:  one, a leadership problem; and, two, an integration problem--integration in collection.  Some of the most important advances we're making today are situations where agencies are cooperating on collection.  I can't discuss them.  We couldn't discuss them in the unclassified version of the report.  But it shows how important those synergies are. The same thing is true to a certain extent on analysis.  We saw in Iraq and we saw it also in Afghanistan and in other areas that the inability of analysts to talk to each other about what they knew often resulted in a sum that was considerably less than the parts. So we came to the view that, even without regard to the legislation, which forced us to think in those terms, we realized that integration in the intelligence community and leadership was important. Also, I have to say that although Dick has made arguments that we should have followed the British system, I think he doesn't sufficiently take into account--the British system has a light coordinator over separate units of the intelligence community, which he will describe.  What he doesn't sufficiently take into account is a fundamental difference between the British, indeed everybody else, and us with respect to our constitutional structure.  We have separation of powers. In the British system, for instance, you have one or two political--you have two political appointees in most departments of government.  You don't need any more political appointees because you have a fusion of legislative and executive power; ergo, you don't have the competing sun and moon we have in the United States between Congress and the executive branch, between Congress and the President, which, incidentally, forces the President to try to have many more political appointees in order to try to control his executive branch and forces--and the Congress, of course, builds greater and greater staff to fight back to the executive branch.  But it means that it's much more difficult to achieve coordination with a light hand of the intelligence community in the United States than it is in Britain. And, finally, I had my own experience, which I have to confess.  Back in 1975--it's an amazing coincidence--when President Ford was in office and Don Rumsfeld was chief of staff, and we had an analogous problem--not the same, but an analogous problem with the intelligence community.  I had been asked by the President and Don Rumsfeld to come into the White House to be assistant to the President for intelligence.  And I declined over a period of time because I didn't think anybody without the troops, without sufficient staff, could effectively deal with that coordination problem. The final point I would make before I turn it over to everybody else is to give Dick Posner some credit.  He has strongly argued for a separate MI5.  Other people have made that point, too.  As a matter of fact, one person who presented that position to us as our consultant was James Q. Wilson, well known in this body and for whom I've had enormous respect for many years and who knows the bureau as well as any man outside the bureau. We concluded that--and we did look--I did particularly--look carefully at the MI5 situation.  They have some real major boundary problems between MI5, which has no law enforcement authority, and special branch of Scotland Yard, who they have to go to when they want somebody arrested.  But beyond that, I actually concluded, many of us concluded, that if we could set up a separate service within the bureau that was focused on national security issues, foreign intelligence, counterespionage, counterterrorism--which, incidentally, has very similar characteristics to counterespionage--that we would be better off because there were synergies between the law enforcement side and the national security side which we'd like to keep and preserve, assuming we could set up a separate service so that you would take advantage of separate expertise, separate training, or at least added separate training, and separate career advancement. I have to say that if there's one part of our report which is generating some resistance--well, there are a lot of parts that generate resistance in the bureaucracy, as we predicted to the President.  But probably the fiercest bit of resistance is coming from the bureau and perhaps the Justice Department about the prospect of separating--or setting up a new national security service. As one of our consultants said to us--and we made it clear in the report--this is the last chance.  If the bureau will not reform, if they won't set up a national security service focused on this issue and which is linked to the rest of the intelligence community and to the Director of National Intelligence, then I will go along with Dick Posner and agree with the notion that you have to have a separate MI5. All right.  That's my opening few remarks. [Applause.] MR. GERECHT:  Thank you, Judge. What I'm going to do here is I'm going to turn the podium to Judge Posner.  I must say I do enjoy having two judges go at each other.  Isn't it nice?  And then we'll form the panel, and I will turn it over to Tom Corcoran and Lindsay Moran.  And then I will open up the room to questions. So, with that, over to Judge Posner, and I think everybody else can come up to the front. JUDGE POSNER:  Thank you.  Thank you very much, Reuel.  It's a pleasure to be here and get to talk to such a large and interesting and informed group. Despite what Larry said about my devotion to the CIA, I am an outsider to national -- [blank spot on tape]. MR.           :  It's on. JUDGE POSNER:  Am I audible now?  Okay.  I'll start over.  So my perspective is an outsider's perspective.  I don't have a national security background.  I do think there is value in an outsider's perspective, but it has to be taken with a certain grain of salt. Despite what Larry said about my devotion to the CIA, my knowledge of the CIA comes in no small part from movies, like "The Bourne Identity" and "The Recruit." [Laughter.] JUDGE POSNER:  Which don't actually cast the CIA in the most favorable light. And I second what Reuel said about the--I call it the Silberman-Robb report.  I think it's a very impressive document, light years ahead of the 9/11 Commission report, a very good read, and, you know, terrific narrative of the Iraqi failure and with many very interesting proposals.  But I do want to focus on my disagreements.  I offer them diffidently as an outsider.  And I'll repeat the view that Larry correctly attributed to me. I do think the tone of the report is too severe in its condemnation of the intelligence system of the United States.  And I think there's a dis-analogy to the practice of firing unsuccessful generals, which is undoubtedly the practice.  Whether they're good generals or bad generals, if they lose, they're generally fired.  But the reason has to do with the fact that the soldiers lose confidence in an unsuccessful commander.  That's why he has to be removed, regardless of his quality.  I don't think that's the situation with the CIA. The criticisms that are made go all the way down to the bottom of the service.  It's not, you know, lions led by donkeys, they said about World War I generalship.  It's donkeys all the way down. [Laughter.] JUDGE POSNER:  And I think that has to be very damaging to recruitment and retention of able people.  And it has another bad effect, and that is, I think--and certainly unintended effect, but that is of overselling intelligence.  That is, if you think that the reason there are intelligence failures is that the system isn't well organized or there are bad practices or bad people in it, then the implication is, well, let's fix this, let's have a new organization, new practice, new personnel, everything will work fine, we won't have any more intelligence failures, and then we can relax all our concern with the other elements of national defense.  And that's very worrisome because there will always be intelligence failures.  That's inherent in intelligence.  Intelligence is one of those activities that cannot be made to work well if you think of what it involves, for example, heavy reliance on secret information.  At the same time intelligence estimates are produced by putting together, by creating a mosaic from little bits of information that don't mean much by themselves.  Well, those little bits of information are secret and they have sources that you don't want to compromise and technologies you don't want to reveal.  Then you have to maintain secrecy, which makes it very difficult to pool the information.  So that's an inherent problem. There are others.  Just the range of targets and methods of enemies of the United States is so vast we can't possibly anticipate all of them, even if we can crawl into the mind-sets of very alien enemies, alien ways of thinking. And there are very serious career incentive problems for an intelligence service because it's so difficult to evaluate success in intelligence.  Success basically means nothing happened.  It's very tepid.  Nothing happens, the country hasn't been attacked.  Is that intelligence success?  Or are our enemies inept?  Or have they been distracted? And then, of course, there's the problem of politicization, which is discussed in the report, and the report says--found no evidence of political pressure being placed on intelligence officers.  But, obviously, like all employees of government, they're operating in a political context.  They're sensitive to what they consider to be the views of their political superiors.  So the general picture is one of profound uncertainty that is intrinsic to the intelligence task, and that means there will always be a lot of intelligence failures. We fired a lot of generals and so on at the beginning of World War II, and we fired Admiral Kimmel and General Short, the commanders in Hawaii.  But it's now generally thought they were scapegoats for a failure which was to some extent an intelligence failure, to some extent a strategic failure, but probably not an avoidable failure. You know, anthropologists like to distinguished between shame cultures and guilt cultures, so ancient Greece is an example of a shame culture, and Christian society is an example of a guilt culture.  But we have a third culture--the blame culture, the idea that anytime something goes wrong, it's culpable.  A person dies at 95 and his family says, well, this was a medical failure.  You know, why didn't you keep our great-grandfather or great-grandmother going for another ten years?  So that's the danger in critiques of intelligence failures. And I'll mention just a couple of specific criticisms that the Silberman-Robb Commission made that seemed to me to be questionable.  One is that the intelligence services operated with a preconception that Saddam Hussein had weapons of mass destruction and that this preconception guided their evaluation of evidence that they gathered in the run-up to the invasion.  And the report is very critical that the effect of this preconception was really to shift the burden of proof to the doubters to show that Saddam Hussein didn't have these weapons. Well, the use of preconceptions to guide inquiry is actually--is perfectly rational.  In fact, it's a condition of rationality.  You can't approach things with a tabula rasa.  You have to start somewhere.  The Commission gives a very good example of the use of preconceptions, sensible use of preconceptions, when it emphasizes the danger of bioterrorism.  That's a preconception in the sense that we don't have any concrete information about the intentions or capabilities of our enemies with respect to bioterrorism.  But we do know the logic of the situation, given what we think they want to do to us and given the means that are available in scientific knowledge and technical facilities, this is something to worry about. And, similarly, the logic of the situation--and the report states correctly that Saddam Hussein certainly behaved like someone with a lot to hide.  And so most people thought, well, you know, he wouldn't risk his life and his regime if he didn't have these things.  So that logic guided the intelligence activities, and as I say, I think that's rational. Now, the information that was gathered in the period between, you know, the formation of the preconception and the final advice to the President, the observation, the aluminum tubes, Curveball, and so on, all of these were recognized at the time to be flawed.  But what I think the report doesn't give sufficient weight to is that if you have a lot of data, all of which point in the same direction, even though each data may point only very weakly, the probability that they're all wrong is much less than the probability that one is wrong, or two or three.  And so statisticians would say, you know, a mass of weak observations can add up to strong evidence. So I think the mistake that was made, certainly an error, obviously, in thinking Saddam Hussein had these things, but it's not clear to me that it should be regarded as a culpable error, calling for, you know, heads to roll and so on. The other points I wish to make, and very quickly, first, with regard to the FBI that Larry mentioned, Chapter 10 of the Silberman-Robb report is really a gem, a devastating critique of the FBI's response to 9/11.  Even though it has a very good director, I think, Bob Mueller--I think he's very able and really determined to try to make an intelligence agency out of the FBI.  But Chapter 10 is emphatic that this has failed, and there's also a letter that the Commission wrote to the President on March 29th, two days before it issued its report, in which it has some specific criticism of the FBI and the CIA, and with respect to the FBI, really suggests--and Larry I think suggested in his oral remarks today--really is refusing--is stonewalling about organizing an effective domestic intelligence capability. The only respect in which I would disagree--not so much disagree as amplify, I think the reasons for the FBI's resistance are systemic.  That's why I don't think they're going to be changed internally.  The report quotes an FBI person as saying that he hopes--hopes.  It doesn't say he will, but hopes that by 2010 the FBI can get its intelligence act together.  I think that's unlikely because the problem is the idea of combining in one agency criminal investigation and intelligence, national security intelligence, where criminal investigation will always be dominant because there will always be much more conventional law enforcement activity for the FBI to engage in than there will be, we hope, you know, national security intelligence.  So you have an agency that's always going to be dominated by criminal investigators, and there's a really deep sort of dog and cat incompatibility between the criminal investigation and intelligence. In criminal investigation, what you do is you make arrests and you hope the arrests will stick, and you provide evidence to the U.S. attorney to prosecute and so on.  That's an activity which is very easily graded, very easily rated, which is very important for a career, because the number of arrests you make, weighted by the convictions that survive appeal and weighted further by the length of the sentence imposed and the property recovered by the government.  So you can see that there are good arrests, they lead to convictions, which lead to big sentences, so you know you're dealing with serious crimes.  And a person who performs well, who meets these objective criteria, will advance and have a good career. Well, intelligence is completely different.  As I say, in intelligence the goal is for nothing to happen, and when nothing happens, how do you evaluate the people who are involved in nothing happen?  Because maybe nothing happened because the plotters were inept, which is, in fact, very commonly the case. So you have intelligence officers and criminal investigators with very different career paths, very different orientation.  Intelligence people often do not want to arrest and prosecute people because if you arrest and prosecute them, you reveal to the enemy community how much you know about their activities.  And then the prosecutions drag on, and secret information becomes public and so on.  So the investigators want to arrest--there's a sense in which people engaged in criminal investigation, they want crime.  Their activities presuppose crime.  They catch criminals.  To catch criminals, you have to have crime.  You don't want to extirpate crime. But for intelligence, you want to prevent things from happening rather than have dramatic arrests and so on.  So combining these--if you go into the FBI now, you're trained as an FBI agent.  Then you're given intelligence training on top of it, and you're given stints of service as an intelligence officer.  But if you're an able person, you will always gravitate back to criminal investigation because if you're an able person, you want to be judged by these objective criteria:  arrests, convictions, sentences, and so on.  So I think intelligence will always be a kind of orphan activity. And a final point on that is that the FBI is extremely decentralized.  Most of its employees are scattered among its 56 field offices.  That makes perfectly good sense from a crime-fighting standpoint.  Most crime, even federal crime, is local.  And, also, you know, if you want to get credit for arresting and assisting in prosecutions, you don't want to share your information with other field officers.  You don't want someone else to take your prosecution away.  And, of course, prosecution itself, federal prosecution, is decentralized.  There are 96 United States Attorneys, again, regionally distributed; whereas, for national security intelligence, you're dealing with, to a large extent, international terrorist gangs, and to detect their plots, you want to put together information from all over the world, not just what you found out in your little local office. Well, last, also on the theme of organization--and I agree completely with what Larry said.  Given that the Intelligence Reform and Terrorism Prevention Act of 2004 has been passed, creating the Director of National Intelligence and so on, any organization suggestions should stick to that framework pretty much and try to find a good role for the DNI rather than say it was a mistake to create that position.  But the question is whether the suggestions of the Silberman-Robb Commission are the best way to organize in light of that framework. There's a scary chart on page 348 of the report called a notional organizational chart for the Office of the Director of National Intelligence.  The reason I call it scary is that it has 34 boxes representing different functions that the office of the DNI will perform, things like budget and personnel and, you know, computers and science and strategy and collection and so on.  They're all important functions.  But the question is whether creating a large staff, a staff of 500, maybe a staff of a thousand, who will exercise this kind of detailed supervision of the various functions performed by the various agencies is an efficient way of organizing this new office of the DNI strikes me as questionable, because you're creating a new bureaucracy layered over the 15-odd intelligence agencies, and that's going to create a potential for delay of information getting to the top, getting, you know, diluted as it goes up and then slow as it goes back down with directions. The alternative, which would have a parallel in the British system, would be, instead of a functional structure for the Office of the Director of National Intelligence, more of a sort of multi-divisional structure.  The intelligence agencies fall into four major groups.  There are military intelligence agencies, foreign intelligence, technical intelligence--satellites and so on--and domestic intelligence.  There's overlap but there are basically these four groups.  And so you could imagine a system in which the groups had their staffs to coordinate within the group, and then the Director of National Intelligence coordinated the four groups, with a smaller staff.  So it would be a little more horizontal and less bureaucratized. Thank you. [Applause.] MR. GERECHT:  Thank you, Judge Posner.  Even though I'm very, very tempted to turn this into a proper Oxford debate between the two judges, I won't, and I will turn the floor over to Mr. Corcoran. MR. CORCORAN:  Thanks.  It's an honor to be here today. Let me start by just adding the disclaimer that my views today don't necessarily represent the Senate Intelligence Committee.  They're largely my own. I would add to what Judge Silberman said about the idea of it's painfully obvious to everybody now that the intelligence community was wrong about Iraq, except for a few flat-earthers who are still hanging on in the intelligence community, still hopeful we'll find WMD someday.  But I guess the question is:  What should they have said when they were talking to the President and the Congress and policymakers about what was going on inside Iraq?  And I think the Senate Intelligence Committee found, when it did its review of the Iraq WMD issue, and the intelligence community's work on that problem before the war, that it really was an analytical failure as well as a collection failure. I don't think anybody on the Senate Intelligence Committee was arguing that they should have said Saddam does not have weapons of mass destruction.  I think what we found was they should have communicated the uncertainty behind their judgments.  They should have said there's a lot of suspicious activity going on in there, especially in light of Saddam and Iraq's history, but we don't really know what's going.  And I think that warning, communicated with the proper amount of uncertainty, would have led to a very different debate in Washington about what needed to be done about Iraq.  I'm not sure whether that would have led to war or not, but I think it would have been a much more focused debate.  We wouldn't be sitting around regretting a lot of decisions that got made before the war. And I think you can see in the--a lot of folks have sort of characterized--have debated whether the blame should be laid in the President's lap or the intelligence community's lap.  And I think one interesting data point is to go to the CIA's website and read the declassified national intelligence estimate that was given to the Congress and the President before the war.  It's unequivocal.  It says Saddam has chemical and biological weapons.  There's not a scintilla of doubt in that judgment as delivered. The good news is we're already seeing improvement.  The intelligence assessments that are now being delivered to the President as well as the Congress are much more honest now about the uncertainties about what we don't know and what it is we do know.  That's the analytical side of the problem. On the human side, one of the primary failures we saw was a failure to take risks.  That primarily falls on the human collectors. I think in Judge Posner's book--which is a very good book, by the way, but one issue I take--one point I take issue with is, you know, can we penetrate organizations like al Qaeda?  And when we talk to the intelligence community about that, they are doing some bold things, but not on the scale across the entire intelligence community.  And when we ask them why these things aren't being done, we get responses along the lines of "It's hard" and "It's dangerous."  And that's awfully disappointing when you consider the fact that there are 22-year-old kids standing post in Fallujah, you know, dying every day.  No one's afraid to put them behind the lines and actually risk their lives.  But there seems to be a broad reluctance in the intelligence community to take the risks necessary to penetrate organizations like al Qaeda. And I think it can be done.   Jose Padilla walked right in.  John Walker Lindh walked right in.  It can be done.  And I'm not in any way diminishing the risks of doing something like that, but I think you have to try. I would also add to what Judge Silberman said about these folks, the intelligence community, not being frail, delicate flowers.  I think they can take this criticism, and they need to take it.  And if they can't take it, maybe they should consider a different career. Adding on to the example that Judge Silberman added, you know, the Kasserine Pass in North Africa, I would also add the example of American submarine captains in the Pacific in World War II.  A certain kind of officer rises to the top in peacetime, you know, someone who fills their forms out on time and doesn't get in trouble.  They found that these guys were not making the tough calls in the Pacific submarine campaign.  They were coming back after tours at sea with full loads of torpedoes because they were waiting for perfect shots before they were taking them.  And the Pacific Command started sacking these officers right away and taking guys who had been passed over, putting them out in the fleet, and right away the tonnage of ships that were sank by the U.S. Navy in World War II in the Pacific skyrocketed because these guys who were not necessarily suited for command in peacetime were excellent officers in wartime.  And I think there's some lesson to be learned from that about the changes that have not been made in our intelligence community since we went to war after September 11, 2001. Another example to add onto that is Lindsay Moran.  You know, she didn't leave because she was being criticized by the media or by Congress.  She left because she was frustrated--I don't want to speak for you, but she and a lot of other young competent officers leave because they are frustrated by   (?)   bureaucracy and a broken corporate culture.  And I think they're frustrated by the fact that there's not enough accountability, that managers who make bad decisions don't get sacked.  They, in fact, get promoted.  And I think if we were a little bit tougher on the intelligence community, I think the better officers might rise to the top a little more often. We also look at the example in the Iraq WMD story of some of the folks that did make the right calls and did raise important questions before the national intelligence estimate and the judgments went forward to the Congress and the President.  And those folks didn't get heard because of some problems in the intelligence community.  I think a little more accountability would actually be welcome by folks like that, folks like the analysts at the Department of Energy who were raising questions about the aluminum tubes before the war. So that leads us to what's the solution to all this.  In Judge Posner's book, he equates a lot of what's going on now with the DNI and proposals to even go beyond that with a stronger chain of command to overcentralization and the fact that that would lead to problems of the span of control.  I would argue that what we really need is a stronger chain of command and a more rational organization, and you can't have that without more central authority, someone actually in charge, who's not only in charge but also accountable for the decisions he makes.  And I think the DNI isn't all the way there to that strong chain of command, but it's a good step in the right direction. A key, I guess, symptom of that problem is the flow of information in the intelligence community.  Senator Roberts on the Intelligence Committee has talked a lot about a concept called "information access."  It's something that's echoed in the WMD Commission report.  People have talked a lot about information sharing since 9/11, and I think information access is a little bit more powerful idea than that.  Information sharing implies that agencies like the CIA and the National Security Agency own the data they collect and it's up to them to decide whether they're going to push that information to analysts out in the field.  And we've found time and time again that just doesn't work.  The information doesn't get to the people that need it. As Judge Posner--information is power.  It's hard to break that human impulse to hoard information and to use it to empower yourself in the bureaucracy.  So by transforming our method of business over to information access, we're talking about giving analysts the ability to pull the information themselves without waiting for an agency to push that information out to them.  And that has to be done electronically so that an analyst at the Department of Energy or the Defense Department or the FBI can automatically search CIA's and NSA's databases electronically without waiting for somebody to tell them that the information exists. That's not something that folks at NSA and CIA are really excited about, and you can see that in what goes on today over at the National Counterterrorism Center.  Analysts there generally have about, I think, 9 to 12 CPUs under their desks so they can access all the different databases out there in the intelligence community.  And they're making small progress sort of, you know, wedding those databases together, but it's very slow progress.  It's 2005.  I think we should be moving faster than that.  And it's only happening on a couple of key issues like terrorism.  And I think it's only happening also because of the intense political and media pressure to share information.  So why do they have ten CPUs under their desks?  It's an issue of chain of command.  They're not accountable to one person who's going to force them to make the compromises to share their information electronically, to plug their databases together. I think we are making progress on issues of terrorism, but it's limited, and I think it is the result of a lot of the political and media pressure that's on them today. MR. GERECHT:  Thank you, Tom. And I'll now turn it over to Lindsay Moran, and I would just add that I think it's always a good idea in intelligence discussions that you have sort of from the ground up views and to remember that really what makes the CIA supposedly special are not its analysts but the case officers.  And for a ground-up view, to Lindsay. MS. MORAN:  Thank you.  Thank you for having me. I'm going to speak briefly from the perspective of someone who was in the Directorate of Operations for a short career but a recent career and during some of the seminal events, both for our country and for the organization, to include September 11th and the build-up to the Iraq war.  And I think I can talk a little bit about the culture of the Directorate of Operations that has sort of led to its sorry state today. Three things that I think would characterize that culture and the reasons that I and other young officers left would be a standard of mediocrity, a lack of accountability at the CIA, and I think a kind of striving for normalcy within the personnel, which doesn't always yield the best covert operatives or the most original operations. I was in Russian language lessons here in Washington when I was  (?)  to work on the Iraqi operations element at Langley, to provide support to the field during the build-up to the war.  And I remember walking through the corridors of Langley and running into a former colleague of mine from the Balkans who had recently been put in kind of a senior position within Iraqi operations.  And I told him that I would be joining the group.  And he leaned over and he said to me, you know, the biggest secret we have is that we don't have any Iraqi agents or assets. And he and I kind of chuckled.  We chuckled because I think there's a sort of esprit de cynicism that exists within the Directorate of Operations; that is, it was no surprise to him, obviously, and it really wasn't a surprise to me that we didn't have any Iraqi agents or assets.  I would come to realize retrospectively that he wasn't exaggerating at all, and I think this has come to light publicly recently with the example of us basing our entire decision to go to war on this one very unreliable agent, Curveball. But it occurred to me retrospectively after I left the agency that probably I should have been horrified upon hearing that, as our leaders were making the case to go to war to the American public, that on some level I should have found it horrifying that someone who was going to occupy a senior position with Iraqi operations was saying to me we don't have any agents.  And yet I wasn't--I was more--I just sort of accepted it, and I think that certainly the morale after the Robb-Silberman report at the CIA is very low, but I would argue that the morale was always low.  It's just that this report has maybe brought to light the elephant in the room that up until that point had been ignored, which is that to call the CIA ineffective or inefficient or broken, you can't ignore the fact that--and I'm speaking specifically about the Directorate of Operations here--that the Directorate of Operations is made up of humans.  That is what human intelligence is. Of course, I would agree with Judge Posner that it's always going to be inherently faulty because it relies on humans and humans have frailties.  But the DO could be a lot better.  Providing support to Iraqi operations from Langley for me was kind of like watching a global Keystone Kops episode; that is, with the realization that we didn't have any Iraqi agents or assets either in Iraq or elsewhere in the world, there was a kind of 11th hour effort on the part of the DO to recruit Iraqis. So we had DO case officers with no knowledge of the language, culture, or even basic psychology of their targets running around worldwide trying to recruit Iraqis at the last minute.  You know, some of the cables that I read, from an entertainment perspective, were sort of funny.  I remember reading about a case officer chasing after an Iraqi who was still in his pajamas, threatening the Iraqi with repercussions if he didn't accept the pitch to come work for the CIA, and the Iraqi all the while shouting "This man is a CIA spy" to all and sundry in the street.  Amusing from an entertainment perspective, but, you know, woefully dispiriting from the perspective of an intelligence officer. Needless to say, I don't think that any of the Iraqis were impressed by the CIA tactics, and the message that we sent to the Iraqi diaspora was that the CIA is incompetent, that the only means that we have to recruit is to sort of issue veiled threats.  So it was incredibly discouraging. Fast forward to, you know, mission accomplished in Iraq, and the CIA I think is reacting as it always does, which is to throw people at the problem; that is, we've sent countless CIA case officers over to Baghdad.  And one colleague, when I was still at the agency, wrote to me and said she was bored out of her skull and could I please send the entire final series of "Sex and the City." Again, somewhat entertaining, but very depressing.  And it's not just the female case officers that I think find themselves idle in Baghdad.  The climate there is such that you simply cannot conduct standard case officer operations.  And a male colleague has described it to me as a kind of relentless, overage frat party in Baghdad; that is, the case officers, without being able to conduct operations, are just sort of forced to stay on the compound and party.  All of this I think is information that's not at all surprising to people within the agency. So what is the problem in the DO?  The elephant in the room that I was referring to earlier that I think the Robb-Silberman report finally gets at is that the problem does lie, yes, with the leadership, but also with the underlings, as Judge Posner said.  And there seemed to me, and I think to many other CIA case officers who left in the same time frame I did, a kind of standard of mediocrity that is simply not acceptable for the intelligence service of what is the last remaining superpower. We watched people who had either failed or failed to succeed rise up through the ranks at the agency, suggesting to all of us that that was how you would get ahead in this organization.  And then to go back to the example of the man who, you know, admitted to me that we have no agents or assets, and that this was kind of an inside joke within the agency.  But, you know, it's a pretty grim joke. So how do you get around that?  Sometimes I hear all the talk of reform, and to me it seems a lot of times like putting Band-aids on gaping wounds.  The morale at the CIA is devastated, but I don't think it's because of these reports.  I think it was always devastated, and now it's just sort of an open secret. The DO and the cadre within the DO have always considered themselves pretty elite, but you don't get to be an elite organization just by being secret.  You know, by that definition the KKK could be an elite organization.  To be truly elite you need to have quality people, and the problem in the Directorate of Operations today I think is the quality of people.  And it goes from the leadership on down.  And it starts with the way in which the agency recruits people.  Almost everyone within the agency knows that if you're a CIA officer on a recruitment tour, that is, going out to find potential new employees, you've probably done something wrong.  That's considered a punishment tour within the Directorate of Operations.  So we're sending out our most mediocre officers to recruit the next generation of spies. And then with the agency polygraphers sort of acting as the gatemen or henchmen to the Directorate of Operations or to the CIA, as I spoke about before, there's this kind of striving for normalcy; that is, they want to find people who are not foreign born, not eccentric, not really out there.  And the result, I think, is that you end up perpetuating this cadre and culture of mediocrity that pervades the agency today. So I would advocate starting from ground zero and a whole new organization. MR. GERECHT:  Thank you, Lindsay. I would just add a little historical note.  I remember that during the first Iraq War, as soon as it concluded, a huge flood of awards and commendations poured out of headquarters to the various stations around the world, congratulating us on how much we had contributed to the war.  It was immediately--within days of that, General Schwarzkopf said that the agency had "given me nothing," followed with this little tiny cable coming from the Directorate of Operations saying, you know, perhaps I exaggerated a little bit, maybe we need to work on this just a bit more.  We didn't. I will now turn it back over to Judge Silberman for responses to any of the panelists, and I will give the same opportunity to other members of the panel if they've heard something they wish to take issue with or to just simply add to. JUDGE SILBERMAN:  Three short points--can I be heard? MR. GERECHT:  Yes. JUDGE SILBERMAN:  In response to my old friend and colleague Dick Posner. First, he's right, he was right also in his book to suggest that surprise is inevitable.  Even the best intelligence agencies will be surprised.  I don't think--in fact, one of the first things we did as co-chairmen is distribute to all of our members Roberta Wohlstetter's wonderful book on Pearl Harbor, in which she makes the point very powerfully that prior to Pearl Harbor, there was information that could lead one to conclude the Japanese would attack Pearl Harbor.  It was embedded in information that suggested they could attack anyone.  And when you go back in hindsight, you can always find the threads that support the action taken. So we were conscious of that.  He performs a service in his book by making the point that you can never stop and guarantee against surprise.  That doesn't mean, it seems to me, we can't do better.  And as I said in my opening comments, we did not criticize the intelligence community for subsequent events suggesting that Saddam did not have weapons of mass destruction.  We think the proper intelligent answer would have been, yeah, we think it's likely he's got it, but the intelligence community should have admitted that it didn't know.  And, therefore, Colin Powell would not have gone to the United Nations, put the American credibility on the line in such a fashion as it will take 20 years to recover from it, from a proposition that it was absolutely certain that he had weapons of mass destruction. With respect to his statistical point, which Dick loves to make, you're right, if you have a lot of data points suggesting in a certain direction, the odds go up enormously.  The truth of the matter is for nuclear weapons there was one data point.  For BW, there was one data point.  For chemical, basically the research is there was one data point. Now, it's true these three weak data points were used to support each other, but that really is pretty fallacious. Finally, on the presumption point--Dick has fun with that, as only judges and lawyers can.  It's perfectly clear if you read the report, what we were concerned about was the intelligence community constructing an irrebuttable presumption in which information that detracted from the irrebuttable presumption was ignored.  I will give a perfect example. Saddam's son-in-law defected.  He gave us all kinds of interesting intelligence information which was very good.  He also said Saddam had destroyed the weapons of mass destruction.  We disregarded that on the grounds that it was possibly a deception. Now, one might have thought when he went back to Iraq and was assassinated by his father-in-law that might have suggested that he was not part of a deception program.  We didn't take that into account, though. So, in any event, the point is he's right to caution.  You can't avoid surprise.  We can do a lot better. MR. GERECHT:  Thank you, Judge. JUDGE POSNER:  Larry's point is good about the difference between a presumption which is rational and an irrebuttable presumption that isn't.  The only thing I'd add to that is that the tendency to, once you've formed your preconception to reject contrary information, that's called by psychologists confirmation bias and it's a cognitive defect.  And I think when one considers the realistic potential for good intelligence, you have to recognize that these cognitive defects are pervasive characteristics of human thinking. I'd just like to make a brief comment about Mr. Corcoran's and Ms. Moran's points. With regard to the computers, the multiple computers--and I think this is in your report, Larry--the American Government has a terrible problem with information technology, which I think he meant was rooted in, you know, archaic procurement practices.  It just is extremely difficult for government agencies to procure up-to-date computer software and hardware and to make them compatible with the information technology of other agencies.  That seems to be a government-wide failure. Now, my impression of the Intelligence Reform Act, I think it does authorize the Director of National Intelligence to bypass certain bureaucratic restrictions on procurement.  So that would be a constructive activity for him. Also, about the--what Ms. Moran described sounds like, you know, the American Government.  It doesn't really sound like especially the CIA. [Laughter.] JUDGE POSNER:  I don't think Americans are that gifted at government because it's not the focus of our society.  The ablest people tend not to become career government employees, and that's unfortunate when we're in very tense times. Now, clearly, there are improvements that as possible.  Whether reorganization is the key to improvement, that's where I'm skeptical. And, finally, about the problem of risk taking and not risk taking, which I think is very much connected, actually, to these criticisms, it really is a no-win situation for these agencies.  If they take risks, they're whacked, right?  If they take risks--for example, roughing up prisoners to get information, that's taking risks, and you get whacked.  And if--the CIA has a long history of embarrassing, you know, diplomatic disasters and failures.  The Bay of Pigs was a risky operation, and its failure, of course, cost the job of the two top people in the CIA, among other things. So it seems to me the CIA, the intelligence in general has these problems, that if they take risks, they're damned, and if they don't take risks, they're damned.  So it's natural for them to kind of retreat into their bureaucratic turtle shells and concentrate on, you know, bureaucratic survival rather than exclusive focus on their mission. So that's why I worry that the intense criticisms being directed against the agency and all the high-level personnel changes are--they may be good on balance, but they're also making the risk aversion problem more serious. JUDGE SILBERMAN:  Incidentally, that same risk question, that same balance of risk obtains with respect to any military officer.  And yet we expect them to do the best. MR. GERECHT:  I would just add I actually think the problems with the American espionage service pre-date the covert action embarrassments that Judge Posner was alluding to, that we have had a very timid service for quite some time, and that it was not the covert action failures that made it that way. I'll turn it over to Tom Corcoran and Lindsay Moran if they wish to respond to anything that has been said. MS. MORAN:  I did want to say something about the lack of integration that you were referring to between the different intelligence services and also how that's a problem that's kind of endemic to the CIA itself. In my experience, there was very little interaction between DO officers--that is, the spies--and the DI analysts.  And I think that, you know, that has been traditionally true, and the reason for that, at least in my mind, is that the DO officers consider themselves more elite.  They're very distrustful of the analysts, distrustful to provide any information that might expose sources or methods, which is understandable.  But the result is that in the DO culture, which tends to reward quantity over quality, both the quantity of your recruitments and the quantity of reports that you're able to write, you end up sort of squeezing every last little report you can out of an agent or asset, even if it's potentially not really relevant information, writing as many reports as you can, and then these reports sort of disappear into the ether world of the agency computer system.  Eventually they make it down to the DI analyst, but there's no dialogue or discussion between the collectors and the analysts that I think would enable the analysts to make better judgments about, you know, what they say is definitive analysis and what they say is probable analysis and basically improve the whole operation. Thank you. MR. CORCORAN:  I would just to the issue of, you know, what are the barriers to information access.  IT really isn't all that much of a barrier anymore.  The intelligence community has done quite a good job of building gigantic pipelines between the agencies, certainly with the exception of the FBI.  The one area we're lacking is some better analytical tools to help analysts sort through the large volume of data.  But the real barrier is bureaucratic barriers.  Agencies like CIA DO just will never willingly allow folks outside the agency to have access to their sacred databases, source registries, and information like that. Now, I'm not advocating for one minute opening it all up, but certainly analysts need a lot more information about the veracity or the reliability of some of these humint sources.  And we could do that tomorrow if we really wanted to.  It wouldn't take much work in terms of technology.  It's really the bureaucratic barriers, and that's where it's my hope that with somebody in charge like a DNI, he might be able to actually put his thumb on agencies like NSA and CIA DO and force them to begin sharing information about where the information comes from. MR. GERECHT:  I always thought it was a very important part of being a case officer to go back to headquarters and tell the analysts, "Do not trust anything I send you." We're going to turn it over now to questions from the audience.  If you wish to identify yourself, go right ahead. MR.           :  After the first Gulf War, one of the [inaudible] was the severe shortage of language-qualified officers serving in language-designated positions.  Does that have an adverse impact on collecting intelligence overseas?  And what is being done about it?  The reports I've read recently indicate that the problem has gotten worse. MR.           :  They've developed a new pill that you can take overnight and you then can speak any language. [Laughter.] MR.           :  Just a quick comment on that.  I mean, I think there is--languages are always good, but if you're serving overseas as a fake diplomat and you're not really in a position to meet Islamic militants, anyway, it doesn't really matter whether you know Arabic or you've had the proper educational background.  So the languages are essential, but it's not--it won't get you home. MR. CORCORAN:  I think the real barrier to getting folks with the culture and language experience in is not--if they're not out there or not willing to serve, it's the security culture in the agency.  They don't want to bring in first-generation Americans, and no one's putting their thumb on the directors of security at the agency saying, "You will hire that first-generation Iranian American because he speaks the language and understands the culture." JUDGE SILBERMAN:  That is a fair point.  One of the failures on our Commission, one of the things we didn't get to, is the security problem.  We couldn't possibly take that on, too.  But that is an unmitigated disaster.  It takes years to get people on, even if they're not first generation.  It's an awful problem. MR. GERECHT:  Dani Pletka? MS. PLETKA:  Is there a microphone? [Pause.] MS. PLETKA:  I apologize on behalf of AEI.  I'll ask my question.  Can you all hear me?  I've been trying to formulate my question throughout your entire presentations, especially Judge Silberman's presentation, because [inaudible] weapons of mass destruction, and there was a big problem of dual use that we faced [inaudible] chlorine gas that went into Iraq during the '90s [inaudible] could have been used for anything.  We never knew what it was used for, and there were lots and lots of problems. But what I'm trying to figure out is how do we create an agency that is able to reflect the doubts that everybody wants and needs to hear.  For example, on the question of those metal tubes, aluminum tubes, centrifuges, how do we [inaudible] without actually forcing our government to make no decisive decisions about anything because there's not good intelligence to go forward? The second part of that question, how do we accept from the agency and other intelligence services the information that they provide, understanding full well how they have become part of the political debate and how they attempted to influence the debate about whether or not to go to war in Iraq by releasing classified information collectively to the press?  How do we deal with those two problems? JUDGE SILBERMAN:  Well, on the second first, actually many of the people in the intelligence community who were so certain about Saddam's weapons of mass destruction were actually against going to war.  It was paradoxical.  So they didn't try to influence the policy.  They were actually coming out with a view that was contrary to the view-- MS. PLETKA:  Not against the war.  I meant they were trying to influence the policy against [inaudible]. JUDGE SILBERMAN:  No, no, no.  They were--well, the ones who were--but they were providing intelligence to the effect that Saddam had--they were certain Saddam had weapons of mass destruction. Now, what's the interesting question, everyone has sort of assumed that had the intelligence community reported somewhat more doubtful information--let us suppose they had come up with what I think would have been appropriate.  It would have been wrong but appropriate, which is, as I said earlier, we think Saddam likely has weapons of mass destruction because he's used them in the past, we have no clear evidence that he destroyed them, and he's engaged in deception.  What would the country have done? It may well be that historians looking back from a point of view of a hundred years from now would say we probably would have gone to war anyway.  And it is probably also true that Saddam intended to develop weapons of mass destruction as soon as he could get through the sanctions regime.  So then it's only a question of timing. But what was such a disaster, as I suggested before, was for Colin Powell to have gone to the United Nations and set forth that absolutely unmistakable certain case which was based on really bad, bad stuff--not various data points that statistically could be correlated, just bad, bad information. MR. GERECHT:  Over here. MR.           :  David [inaudible] with Global Security Newsletter.  I wanted to challenge one of the conclusions in the report that [inaudible] the conclusion that the intelligence community should not be blamed for not concluding that Saddam had given up his weapons of mass destruction.  And the issue I have is-- JUDGE SILBERMAN:  Well, you've got double negatives there, and I lost you. MR.           :  Okay.  They didn't conclude that Saddam had given up his weapons, weapons of mass destruction, but that's a reasonable thing for them not to have concluded.  Does that make sense? JUDGE SILBERMAN:  I think so.  Yes, yes, there's-- MR.           :  One more thing.  You said--you faulted them for not considering he might have given them up, but you didn't fault them for not [inaudible]-- JUDGE SILBERMAN:  That's correct. MR.           :  The problem I have with that is the use of the term "weapons of mass destruction," because with respect to nuclear, given the paucity of good intelligence [inaudible], given the level of destruction that UNSCOM visited on the program after the war, and given the difficulties of concealing a nuclear weapons program relative to chemical and biological, it would have been perhaps more reasonable to think maybe they didn't start up that [inaudible]. JUDGE SILBERMAN:  I think you're wrong, actually, and the intelligence community was seared after the Gulf War, the first Gulf War, because afterwards it was determined that Saddam was much closer to a nuclear weapon than they had thought beforehand. I think if the intelligence community had come up with your conclusion before the war, that would have been very dubious, not-- MR.           :  But [inaudible] inspectors in Iraq-- JUDGE SILBERMAN:  That was part of the problem.  He kicked them out.  So that gave an inference. Now, the truth of the matter is if we had had--on the collection question, if we had had five senior agents in the highest positions in the Iraqi military or the Iraqi civilian defense and they were reporting every day, we probably would have been even more wrong about whether or not he had weapons of mass destruction because he gave a talk once to his senior group saying he'd destroyed his weapons of mass destruction and most of them didn't believe him.  He was playing an enormous bluff. Now, what we didn't have the imagination to consider is the reasons why he would be doing a bluff, why he would have--why it would be perfectly rational to destroy the weapons after '91 because he didn't want to get caught with them and he wanted to get through the sanction regime and figured he could perhaps develop them afterwards, post-sanction regime.  We didn't have the imagination to think about it. But, frankly, if the intelligence community had come in and said we think he's destroyed the weapons, that would have been--there was even less evidence to support that. MR.           :  [inaudible] had them and he didn't-- JUDGE SILBERMAN:  He didn't have them in '91. MR.           :  [inaudible] infrastructure.  He didn't have nuclear weapons in '91. JUDGE SILBERMAN:  He was very close to them. MR.           :  And he didn't have-- JUDGE SILBERMAN:  He was very close.  What you're not taking account of is the intelligence community miscalculated prior to '91 how close he had been to nuclear weapons. MR. CORCORAN:  It's near to impossible to prove a negative, and if the intelligence community had come out and said, ironclad, Saddam has no weapons of mass destruction programs, they would be just as guilty of not communicating the uncertainties behind that judgment than-- MR.           :  I'm not talking about weapons of mass destruction.  I'm talking about nuclear weapons, and they could have said there's a high probability that they've destroyed them, that they [inaudible] nuclear weapons. JUDGE SILBERMAN:  I think that would have been an improper judgment based on what they had before. MR. CORCORAN:  What the intelligence community was saying was that they thought there was a chance that he could have a weapon within five to seven years.  That's much different than saying he has nuclear weapons. MR.           :  There wasn't any evidence. JUDGE SILBERMAN:  Well, the tubes.  That was the whole--you're right, you're right.  The tubes evidence was not good evidence.  It was really silly, fallacious evidence.  You're right.  But I don't think anybody would have been prepared to conclude the contrary. MR. GERECHT:  [inaudible] I just meant on the historical point of having five assets inside the Iraqi hierarchy, we had numerous assets inside the German and the Cuban system for years, and they all turned out to be doubles or dangles. In the back? MR.           :  [inaudible] from DOD.  Let me take you to the last sentence in the paragraph transmitting the WMD Commission report to the President.  You say, "There is no more important intelligence mission than understanding the worst weapons that our enemies possess and how they intend to use them against us.  These are their deepest secrets, and unlocking them must be our highest priority." Now, you've already invoked Roberta today.  Here we are in the Wohlstetter Conference Center.  Let me invoke the other Wohlstetter, not John, Albert.  What would you like to see the intelligence community budget share split between WMD and non-WMD issues be?  For example, there is a principle first introduced by Albert, the principle of comparative risk.  Other things being equal, the budget shares ought to be proportional, varying inversely with the relative risks.  If you think the relative risks are roughly 50/50, let's put the budget shares even.  Judges, what do you want to do? JUDGE SILBERMAN:  Well, I frankly would--I would take the intelligence budget and divert most of it to raising judicial salaries. [Laughter.] MR. GERECHT:  Over here. MR. WOHLSTETTER:  [inaudible] John Wohlstetter, senior fellow, Discovery Institute, and if you're wondering, Albert and Roberta, aunt and uncle. I'd like to try to put together some [inaudible] try and see what [inaudible] in terms of Iraq [inaudible] building a nuclear plant ostensibly for peaceful purposes. If you start out with Roberta's premise that it is going to always be very difficult to separate signals from background noise, particularly when you reach your conclusions and [inaudible] human nature [inaudible] surprise attack [inaudible] figure out what's going on in closed societies, and if you add to that that we are thoroughly discredited for a generation, as [inaudible] said, I think correctly, our intelligence concludes that [inaudible] within five weeks of producing their first [inaudible].  Does it not make more sense, if we are prepared to act in the face of greater uncertainty, to talk in terms of not taking out capabilities [inaudible] preempting the prospect that certain people who are not to be confused with Mother Teresa's disciples ever get their hands on a nuclear weapon [inaudible] in Iran.  If they get nuclear weapons, they will not only [inaudible] but as well to behind the nuclear shield that virtually immunizes them from attack to subverting democracy that you're trying to promote elsewhere in the Middle East.  This would be such a catastrophe, we must preclude the possibility instead of trying to wait and guess, well, we think you're only a year or two away and the Israelis say this, but instead to move to conclude certain possibilities that are so dangerous that we base them not on the intelligence estimate that is bound to be very iffy to begin with, but rather on just certain possibilities that we can't live with. JUDGE SILBERMAN:  I take it you're suggesting war. MR. WOHLSTETTER:  No, I'm suggesting that one way or another it implies regime change.  That doesn't necessarily, depending on, you know, whether you follow Mike Ledeen's stuff here, whether it comes about by pressing them to hold elections and moving in that direction, it isn't necessarily launching tomorrow.  But it does imply that if you don't get regime change without [inaudible]. JUDGE SILBERMAN:  That's such a deep policy issue, I'd defer to my colleague Dick Posner. [Laughter.] JUDGE POSNER:  All I'd say about that is that the more dubious you are about the accuracy of intelligence, the more weight you have to give to alternative methods of national defense. So, yes, I mean, clearly preemptive activities of one sort or another become more attractive if you don't figure--if you can't figure out your enemy's intention. I actually think during the Cold War that the United States and Soviet Union probably were pretty happy with each other's espionage activities because that was a way of assuring the other side that we didn't harbor aggressive intentions.  So you can put yourself at risk if your enemy doesn't know your intentions because he may strike preemptively.  So preemption is always in the picture there. So, again, that's--one of the, as I said, very good emphases in the Silberman-Robb report is the danger of bioterrorism, which I rate very high in terms of what Mr. Kozemchek (ph) was asking about comparative risk.  Although we don't know anything about the actual probability of bioterror attack, we know the consequences could be enormous, could dwarf, you know, nuclear-- JUDGE SILBERMAN:  Excuse me on that, Dick.  I should have said it earlier.  Actually, you're not quite right about what we know about the threat of bio attack, but that's unfortunately in the classified version of our report. JUDGE POSNER:  Okay.  Well, I think it's--if we do know something about it, that is somewhat reassuring.  But supposing we couldn't estimate the probability of a bioterror attack and we didn't know where it would come from and so on.  Then clearly we would put even more emphasis than we are putting on creating, you know, wide spectrum vaccines and, you know, sensor warning systems and so on against epidemics. So, you know, intelligence has to be traded off--intelligence investments, intelligence budget has to be traded off against all the alternative methods of defending the nation. JUDGE SILBERMAN:  I think that was, incidentally, a very astute response, sir. MR. GERECHT:  We have a question in the back, the young lady back there standing. MS.           :  [inaudible].  A, is this credible?  And, B, if it is, is there a possibility that countries outside the Middle East [inaudible]? JUDGE SILBERMAN:  I think what Delfer(ph) said is he couldn't preclude the possibility, but he did not think that was true.  We did not see evidence of that. MR. CORCORAN:  I think if you look carefully at the language of the report, he's not talking about weapons of mass destruction.  I don't remember the exact words that he used, but he talked about materials and equipment.  And we're back to sort of the dual-use issue again.  There was a pattern of dual-use activity that didn't necessarily add up to a weapons of mass destruction program.  That same equipment is awfully valuable, so when that looting frenzy began, that was the first to go.  That's the stuff they actually get a pretty good price for on the international market.  But it doesn't necessarily mean that there was a weapons of mass destruction at the root of that. MR. GERECHT:  Right here. MR.           :  My name is [inaudible].  I have a question for Ms. Moran.  I'm Japanese, and I have heard from two Japanese American World War II veterans--they are both in their 80s now--that after the attack on Pearl Harbor, the U.S. military deployed about 3,000 Japanese American soldiers throughout the Pacific as interpreters of [inaudible] culture, psychology, and everything that is relating to Japan. My question [inaudible]:  Does anybody on the panel know this?  And, B, why is it that this important lesson appears to have been [inaudible]? MR.           :  Actually, I'm from Hawaii and I do know something about that because most Japanese Americans were in the 442nd or 100th Battalion and they were not used in the Pacific.  They were used in Italy and France.  We had a few Japanese American intelligence officers, but nowhere near 3,000.  We had a much larger number of Navajo Indians, which we used to communicate in such a way in which the Japanese who spoke English wouldn't be able to tap into our lines. MS. MORAN:  I was going to say it's before my time, but-- MR.           :  Thanks a lot. [Laughter.] MS. MORAN:  I don't know why this sort of common-sense lesson has somehow been lost on the CIA and the recruiters of the CIA.  I know both of a second-generation Iraqi and a second-generation Iranian, both of whom applied to the agency and got to the final security stage, the polygraph, and both ended up being eliminated.  And that's just, I'm sure, you know, two of many examples of what could have been a valuable resource to the agency, that because of this kind of distrust of foreigners, the agency has failed to capitalize on all of these people as resources. A lot of Iraqi Americans were far more patriotic and far more in favor of the war, I think, than other Americans and yet somehow, because they're foreign born or of foreign descent, are viewed with a great deal of distrust by the agency. JUDGE POSNER:  I think it's a good illustration of a bureaucratic problem, again, one of these very stubborn problems that you encounter in government.  So in business, of course, you know, there's a market measure of success and failure, and that has tremendous incentivizing effects.  But in government, it's very different. So if you're an agency official who signs off on hiring an Arab American, you know, someone, you know, that has family abroad and seems somewhat riskier than hiring a nice fresh-faced, you know, Mormon from Salt Lake City, if this person turns out to be a double agent or unreliable in some way, you will be blamed.  If, on the other hand, this person simply turns out to be a good agent, there will be a gradual, imperceptible improvement in the general quality of the agency, you, the officer who passed this person, who allowed him in, will not--is unlikely to get the credit.  The credit will be diffused, but the blame will tend to be concentrated.  You look for the scapegoat when something goes wrong.  You don't look for the hero when something goes right. So you can see how this--it would be another example of how a risk-averse culture is deeply embedded in the nature of our government, unless someone is able to think up, you know, really ingenious systems of reward and compensation for government officials who take risks, career risks. MR. GERECHT:  In the back. MR.           :  Greg [inaudible], Senate Intelligence Committee staff.  I wondered if Judge Silberman could comment on the absence of systemic treatment about intelligence on foreign ballistic missiles since that is the most potent means of delivery for by far the most potent category of [inaudible].  This report really doesn't much about it, and it seems that this has two effects.  One is in telling the Iraq intelligence failure story, it almost shoves off the table an apparently credible [inaudible] picture of the one smoking gun, the range of violation by the Iraqis.  But more broadly than that, looking at Iran and North Korea and other things the Commission addressed, it seems to not share with the public the fact that the U.S. Government has fairly consistently overestimated the speed and severity of the foreign ballistic missile threat from rogue states. JUDGE SILBERMAN:  The problem with the subject of your question is it necessarily requires me to get into the classified version of the report, so I can't answer it.  The classified version of the report deals with Iran, North Korea, Russia, China, and I can't get into that.  Were you referring to the classified version when you were asking the question? MR.           :  I'm asking the question about the unclassified version.  Having seen the classified version, I would still ask the question about the ballistic missile focus [inaudible]. JUDGE SILBERMAN:  I don't think that's quite fair, but I can't answer that. MR. GERECHT:  I just love classified information. In the back? MS.           :  Lauren [inaudible], AEI scholar.  I'd like to underscore what Dani Pletka said in her question, part of which didn't get answered, which was that there were many, many more sources of information about Iraq [inaudible] the Commission suggested [inaudible] regard to BW.  I personally thought the BW program-- JUDGE SILBERMAN:  Why do you say that? MS.           :  UNSCOM.  UNSCOM reported from 1995 on that there were significant quantities of undisclosed material in Iraq [inaudible] relevant to-- JUDGE SILBERMAN:  Chemical, not B--are you talking about BW? MS.           :  BW as well in terms of growth media, research, all the stuff Iraq seemed to have that came from UNSCOM's [inaudible] that there was an Iraqi BW program.  I never heard [inaudible].  But that is not my question.  I just wanted to say-- JUDGE SILBERMAN:  I think you're wrong about that.  I think you're exaggerating enormously what UNSCOM reported.  But in any event, go ahead. MS.           :  I will be happy--if you give me your e-mail, I will send you it. JUDGE SILBERMAN:  Oh, I don't want to do that. [Laughter.] MR. CORCORAN:  I think it's fair to say that UNSCOM did document a lot of discrepancies in the inspection process. JUDGE SILBERMAN:  Right. MR. CORCORAN:  But that wasn't prima facie evidence of an active program at that point.  I think-- MS.           :  That is [inaudible]-- MR. CORCORAN:  That gets back to the point I made earlier, that, you know, the intelligence community should have said that there was some suspicious activity going on in Iraq, and there were a lot of unanswered questions that could add up to a very disturbing conclusion.  But they should have been more honest about the fact that--we know that that growth media hasn't been accounted for.  We don't know what happened to it.  You know, the Iraqis could be right.  It could have been looted, you know, right after the war.  Or there could be something going on there.  We don't know. MS.           :  Okay.  My question, though, however, was directed to Judge Posner, whose comments I thought were-- JUDGE SILBERMAN:  Good. [Laughter.] MS.           :  --really insightful [inaudible]--really insightful, for example, how the FBI, the criminal--people who are chasing criminals would, in fact, have disincentives for ever ending criminal enterprise, but that's not really a problem because people--some part of the populace are prone to criminal activity.  I wonder the implication of this for terrorists, when particularly in the '90s we treated terrorism as a law enforcement issue, and, of course, [inaudible] incentives to arrest and convict terrorists.  Did we set up a situation in fact in which the career incentives were not really to end terrorism but to take these kinds of steps which would advance careers without focus on what really should have been the proper objectives of it?  You know, everyone said that--when we knew since 1993 the objective of these terrorists was to [inaudible] New York World Trade Center [inaudible].  Was that the wrong way to deal with terrorism in terms of career incentives, and may it have distorted our understanding of terrorism? JUDGE POSNER:  Yes, I don't want to suggest--I wasn't being serious.  I wasn't suggesting that the FBI and the Justice Department and so on like crime and would be disappointed if crime disappeared.  And certainly they don't like terrorism or anything like that. But I do think that while prosecutions of terrorists would be one of the weapons that one uses against them, it seems to me it's not the key one, and it can interfere with an effective anti-terrorism program because in order to--if your focus is on prosecution of terrorists, you have to wait until there is criminal activity.  And the optimum time to arrest a person from the standpoint of getting a conviction and a good sentence is not necessarily--I think would rarely be the optimum time for intervening in a terrorist plot that you're watching unfold because you want to make sure that you know everybody who's involved in it.  As soon as you arrest someone, all the rest of his connections scatter.  They know you're on to them.  So that's the danger, premature intervention in developing plots. Another thing is that a lot of intelligence involves the monitoring of perfectly lawful activity which is unlikely ever to become unlawful.  The terrorists, presumably, require some kind of, you know, friendly medium.  It may just be groups of supporters, of sympathizers, maybe some financial assistance, maybe just moral support.  And you want to know, you know, what these people are thinking and doing and so on, what kind of culture they are evolving, what kind of hospitality they provide to suspicious characters.  And, again, there may be no unlawful activity, or the unlawful activity may not become an actual crime for years. Well, the criminal investigator doesn't want to arrest someone before there's enough evidence to be reasonably confident of a conviction.  And so they don't want a situation where they're going to spend ten years monitoring some group that may or may not ever cross the boundary into illegal activity.  They want instead to focus on, you know, nascent criminal activity, only a small amount of which is terrorism. So, yes, you know, as I say, you certainly want to have in the FBI people who are specialized in the prosecution of terrorists for that minority of instances in which you decide that prosecution was the way to deal with it. For example, in one of the congressional inquiries, there was testimony that said that, well, often what you might want to do with a terrorist, many of whom, of course, are aliens here illegally, you might want to deport the person.  You might want to deport him to a place where you could follow him and see where he goes.  But apparently when you go to the Justice Department and say, well, don't prosecute this person, we'd actually prefer to see him deported, according to this testimony, you get absolutely no positive response from the Justice Department because they're not interested in--I mean, they do deport people, but you know what they do.  They want to prosecute the person, then deport him.  That's the typical approach, because just deportation doesn't give them the kind of credit in their sort of internal rating system that they get from prosecutions. MR. GERECHT:  I think with that we've run out of time, and I would like to thank everybody for coming.  I'd particularly like to thank the panel, and especially our two judges. [Applause.]</body></html>