Of Security and Human Institutions

by Ronald Rychlak - January 13, 2010

Reprinted with permission.

On Christmas day, a Delta Airlines flight from Amsterdam to Detroit narrowly escaped catastrophe when an intended suicide bomber who had passed through security could not get the plastic explosives he hid in his underwear to detonate. The attempt occurred as the plane was on its final descent, 20 minutes from landing, with 289 people on board.

That hundreds were not killed is perhaps a miracle. White House Press Secretary Robert Gibbs and Secretary of Homeland Security Janet Napolitano originally claimed that "the system had worked." The next day they retracted that statement, saying that the system had in fact "failed miserably." After reviewing a report on the incident, President Barack Obama referred to "systemic failure."

Commenting on last week's report on the intelligence failures, White House national security adviser James Jones said Americans would feel "a certain shock" when they read an account of the missed clues that should have prevented the would-be bomber from ever boarding the plane, including the fact that his own father reported that he had become radicalized and was a threat to security. Unfortunately, missed clues like that are all too common – something to which I can personally attest.

Years ago, when my wife and I first moved to Mississippi, we lived in faculty housing. Two of the other families on our floor had recently moved to the United States from Egypt. They were (and are) Muslim, and they are among our oldest and closest friends here in Oxford. They and their friends have often turned to me for (pro bono) legal advice. My wife and I joke about how I am the "Muslim attorney" in town.

About five years ago, one of the families came to me over a financial matter. They had decided to remodel their home. When someone at their mosque learned about this, he asked them to take out a larger loan than necessary and lend him the extra money to help support his business venture. They agreed and borrowed an extra $150,000 on their house in order to make the loan.

The venture in question involved travel to Europe, where the man said that he would buy several expensive automobiles, return with them to the States in two weeks, resell them at a profit, then return the amount borrowed to my friends (who, in accordance with their faith, did not want to take any interest payment from him). The only problem was that, instead of two weeks, he was gone for about six months, and when he came back he had no cars and no money. He said that something had gone wrong. He declared bankruptcy, and the family asked me to help them recover what they could of the loan. As unsecured creditors, that would not be much.

My friends told me that they were not the only family at the mosque who had loaned money to this fellow. He had borrowed hundreds of thousands of dollars, traveled overseas, then returned home broke. I could not help but be suspicious about what he had done with these funds.

I went back and forth for several days, but eventually I decided to call the 1-800 number that the FBI established to report suspicions about terrorism. The agent who answered the phone was not impressed. He said that the FBI was not interested in helping my clients get their money back (not that I had asked for or expected that). He also scolded me for assuming that the issue was terrorism-related simply because it involved a Muslim.

I was quite chagrinned. I never thought my actions were based on prejudice, but after talking to him, I assumed that I had completely misread the situation. I later lectured to my "terrorism and the law" classes about these events, sometimes taking votes on whether they would have made the same call that I did.

Then, about two years ago, I was talking to a recently retired Assistant United States Attorney. He had been a regional coordinator of anti-terrorism cases, and he was considering a possible second career in academia. My experience with the call to the FBI naturally came up. His jaw dropped: With just a few questions, he was able to determine that the man I had tried to report was the same man he had been trying to convict.

He said that his office knew this person was funneling money to terrorist groups, but they needed proof, and they needed a victim. If I had called him instead of the 1-800 number, they would have been able to make an arrest and probably gotten a conviction. As it was, the man got out of the country without ever being brought to justice.

Of course, this conversation means that I no longer have to be embarrassed about having made that call. That is of limited comfort, however, in that it also means that I have first-hand experience with another significant intelligence failure. Who knows how many others there might be?

The bottom line, of course, is that intelligence officers are human. They have to make judgment calls, and they're going to make errors. It would be great to stop every plot before harm takes place, but I don't think we should be shocked when there is an intelligence failure. These are human institutions, and human institutions are not infallible – not even close.

Ronald J. Rychlak is the associate dean and MDLA Professor of Law at the University of Mississippi School of Law. He is the author of Hitler, the War, and the Pope (2000) and Righteous Gentiles (2005).