A difficult real world lesson for academics like me is that execution matters. It very often matters much more than institutional design. A suboptimal institutional design often matters less than how it is executed, and the attention with which it is executed. Hard for academics like me to keep in mind, because we are conceptually oriented and almost by nature care more about the design of a system than the messy, daily details of how, or whether, it is carried out. We tend to think, correctly, that incentives matter and that execution will tend to flow where the incentives flow. True, but not the whole story; there is another story (much discussed in business literature these days) that execution is not merely an afterthought – another too-easily made economists’ assumption – but a process that has its own dynamics.
The Christmas attack brings these problems of both institutional design, but also execution failure, to the fore as the disastrous performance of government agencies once again takes center stage. Watching the institutional blame game now starting to unfold (see also the excellent article by the NYT Scott Shane) caused me to recall three short books written by Judge Richard Posner a few years ago, as part of a Hoover Institution series from Rowman and Littlefield, on domestic counterterrorism. He was writing particularly from the vantage point of analyzing institutional design, but then going on to discuss the many reasons why government agencies are typically so appallingly bad at execution. His basic observation was that bureaucratic coordination in domestic counterterrorism was nearly unachievable, for reasons related to the internal governance of bureaucracies, agent-principal failures, and other reasons. Reasons that were partly bad incentives – but also simply the inability to get bureacratic focus on execution.
These books are worth revisiting as structures of domestic counterterrorism are now getting (or so I hope) a much needed re-examination. Below the fold, I am putting a short review of the three books from early 2008 – originally slated to appear in the Journal of Terrorism and Political Violence, where I’m on the editorial board, but then we shifted away from short reviews, so it didn’t run. Judge Posner makes keen observations on what works, what doesn’t, and his observations from the mid 00′s are still relevant today.
Institutional Reform of US Domestic Counterterrorism Bureaucracies:
Richard A. Posner is the best-known and unquestionably the academically best-regarded judge in the United States who is not already a justice of the US Supreme Court. Leading exponent of the law and economics movement at the University of Chicago before joining the bench, he is a brilliant, wide-ranging jurist-academic who, after 9/11, turned his attention to counterterrorism. Between 2005-7, he produced three short books in a policy series from the Hoover Institution devoted to the problems of bureaucratic reform of US counterterrorism agencies. On evidence of this triptych, Posner’s pragmatic, economics-driven instrumentalism provides an astute lens by which to examine bureaucracies and institutions of domestic intelligence from within, focusing on their incentives and disincentives to undertake reform. The books are technically detailed, especially in the notes, yet are readable across the fields of security studies, political science, economics, law, and organizational theory. This is policy rather than academic literature; the purpose is entirely practical and instrumental, and the books’ audience is policymakers, government officials, legislators, and the analysts, academics, and others who advise them on how to improve US government counterterrorism programs. The focus is limited to counterterrorism and US domestic intelligence in particular.
The first book, Preventing Surprise Attacks, analyzes the Report of the 9/11 Commission and the Intelligence Reform Act of 2004 that resulted from it. Posner examines the analysis that led to the Commission’s conclusions, set against a brief but powerful historical, strategic, and comparative review of successful and unsuccessful surprise attacks, including Pearl Harbor, the Tet offensive, and the Yom Kippur war. He concludes that successful surprise attacks “follow a tried-and-true pattern, one that a reorganization of our intelligence system is unlikely to be able to disrupt.” (PSA, p. 13). This does not however render domestic counterterrorism pointless. On the contrary, the likely harms (particularly from a catastrophic terrorist attack using WMD, but also from the indirect economic, political, and social effects of another conventional 9/11, let alone recurrent but unpredictable attacks) are so large that very strong measures and resources devoted to prevention meet probabilistic tests of costs versus benefits. That calculus also favors offensive as well as defensive counterterrorism as a counterbalance to the difficulty of defending the US’s nearly unlimited vulnerable points.
The second book, Uncertain Shield, takes up the bureaucracy of intelligence and counterterrorism in, as the subtitle says, in the “throes of reform.” It picks up with passage of the 2004 intelligence reform act and argues that its reforms were badly conceived because, relying upon mistaken analysis in the 9/11 Commission Report, Congress sought to centralize even further an already heavily top-down institutional structure, to fix perceived coordination problems among intelligence agencies. The effect was simply to add another layer of bureaucracy at the top (through the office of the Director of National Intelligence) that did nothing to improve the informational inputs at the bottom or its informed analysis but which instead considerably slowed and weakened analysis.
Analyzing a factor ignored by nearly everyone – Posner examines the problems of inadequate automation systems for dealing with classified data existing even within the midst of the world’s most technologically sophisticated surveillance systems. He shows, moreover, that massive over-classification of government documents itself induces leaks and lack of respect for secrecy laws, overwhelms automation systems for dealing with classified documents (especially between agencies), and turns out to impose surprisingly strong negative costs upon counterterrorism as a whole. Finally, Posner offers a controversial proposal to take the FBI out of domestic intelligence as such and replace it with a new agency (modeled loosely on Britain MI5) devoted solely to domestic intelligence gathering with no law enforcement powers.
The FBI’s bureaucratic incentives, Posner says, cause it to focus on preparing, trying, and winning cases, a role which it plays effectively. But the “weakest link in our intelligence system” is its “domination by the Federal Bureau of Investigation”; the reasons are fundamentally that gathering intelligence necessary to prevent an attack is not a matter of carefully gathering and interpreting evidence one knows exists after the fact of a crime, it is willingness to go after needles in haystacks, in advance, and under uncertainty as to whether a plot actually exists. (US, p. 88) These functions are organizationally completely different, and the FBI has shown virtually no ability or interest in preventative activities except collateral to pursuing actual cases.
The final book, Countering Terrorism, looks to the broader picture of counterterrorism and domestic intelligence, examining institutions outside the formal intelligence apparatus, particularly courts, and considering the question today at the center of national policy debate, how to balance off intelligence gathering against civil liberties. As Posner notes, the debate over values of safety versus individual rights permeates nearly every contested counterterrorism issue – surveillance, detention and interrogation at Guantanamo, “black sites,” rendition, profiling, etc. Even in an instrumentalist argument, it cannot be avoided. But involving the federal judiciary by treating terrorism as simple criminality and making counterterrorism (once again) a function of federal criminal justice is, he says, mistaken.
Posner rejects the view that regular criminal justice can address transnational terrorism cases; as a leading federal judge, he brings authority to the view that ordinary criminal justice neither prevents nor deters jihadist terror. He endorses, at least conceptually, moving from military detention to a civilian system of administrative detention and trial in a special “national security court,” with relaxed rules for procedure and evidence and specialist judges drawn from the regular federal judiciary.
Carefully argued and closely observant of US security bureaucracies, these three books merit study as policy tools for genuinely effective reform. Posner is skeptical that much will take place. His arguments will particularly not persuade, moreover, those who believe (the emerging view among US elites, in my estimation) that the terrorist threat is greatly overstated and the true threat is the governmental threat to civil liberties. For those holding such views, Posner’s calls for greater and more efficient resources directed to domestic intelligence and counterterrorism will likely fall on deaf ears.
OregonJon says:
“One of the most difficult lessons of the real world for academics like myself to keep firmly in mind is that execution matters.” Just a high-fallutin’ way of expressing what mother always said, i.e. success is 10% inspiration and 90% perspiration.
December 31, 2009, 2:32 pmjgreene says:
We once again need an Office of Strategic Services to bypass and override the obviously inept gathering of intelligence and ACTION against IslamoFascist Terror in today’s world.
Political Correctness be damned! Muslims are using our strengths to attempt to destoy us. Only when we admit that the jihadists of Islam are the enemy will we begin to be able to DESTROY THEM before they reach our shores.
Anyone involved in actively or passively engaged in jihad against kafirs (unbelievers) deserves to die. Simple solution. But life is too complicated.
Muslims in our country as well as overseas are all suspect until they stand up and disavow Islam’s present and past barbarism.
December 31, 2009, 2:34 pmCrunchy Frog says:
It always amuses me when people think that just because the name at the top of a large organization changes (say, DOJ when a new adminstration takes over) that everyone within the agency itself is going to immediately move in lockstep with the new boss.
Never underestimate institutional inertia.
December 31, 2009, 2:35 pmRod McFadden says:
Execution and speed: “A good plan, violently executed now, is better than a perfect plan next week.” General George Patton, Jr.
December 31, 2009, 2:41 pmVegasGuy says:
“execution matters. It very often matters much more than institutional design”
Well, yeah. Execution matters in that a design does not by itself produce an outcome. But to say or imply that ad hoc, inconsistent-design-driven behavior *can* yield good results is a huge “So what.” Is that off-chance possibility what one would want to depend on in the real world? I think not. Lawyers and politicians should spend more time around engineers.
December 31, 2009, 2:46 pmChris Travers says:
Very true. The process of building airport security policies has not always been well executed, for example even though the institutional design looks pretty good on paper.
December 31, 2009, 3:22 pmFPC says:
I agree, executing them is better than giving them art therapy.
December 31, 2009, 5:33 pmKarl Lembke says:
Another way I’ve heard it put came from a fellow who programs computers for a living.
“The system design is not nearly as important as the error correction mechanism.”
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[...] This post was mentioned on Twitter by Ruben Marquez, Solis Web Graphics. Solis Web Graphics said: The Volokh Conspiracy » Blog Archive » Execution Even More than … http://bit.ly/90zBoj [...]
December 31, 2009, 7:54 pmDave Hardy says:
Every layer of bureaucracy functions on only passing up information that makes it look good, and options that it wants adopted. The information must support “our position.” To any good bureaucrat, true and false are unimportant, the position is everything.
So adding one more layer at the top does nothing but ensure the decisionmaker is even more isolated from real information and options.
December 31, 2009, 9:08 pmuberVU - social comments says:
Social comments and analytics for this post…
This post was mentioned on Twitter by rubenmarquez: Interesting read. http://volokh.com/2009/12/31/execution-even-more-than-design-revisiting-richard-posner-on-domestic-counterterrorism/...
December 31, 2009, 9:42 pmDavid Sucher says:
“A difficult real world lesson for academics like me is that execution matters. ”
How wonderful to hear someone say that! The idea that implementation matters as much or more than design, and that one must calibrate actions to match capabilities, is true thoughout every aspect of governance and human action
I remember taking part in a the debates of a non-profit board (this is in Seattle). The issue was whether our group should support a huge public project. I said that one of the reasons I was against supporting the project was because I doubted if the local government in question could effectively manage such a large and yet subtle project; with all the good will and intentions, it simply didn’t have the institutional experience or judgment to do a good job and the consequence of a mediocre job were worse than just mediocre.
People looked at me as if I was crazy. Finally someone spoke up and said “What difference does that make?”
I lost interest in the group shortly thereafter.
Btw, I think that Rory Stewart says something along those lines vis-a-vis Afghanistan: there is no wisdom in trying (much less moral obligation) to do something which exceed one’s abilities no matter how worthy the goal.
December 31, 2009, 10:11 pmSara says:
“Ah, but a man’s reach should exceed his grasp, or what’s a heaven for?” -Browning
January 1, 2010, 11:53 amDavid Sucher says:
‘ “Ah, but a man’s reach should exceed his grasp, or what’s a heaven for?” ‘
Sounds good and glorious, Sara, but as Browning suggests, exceeding one’s grasp can be a sure road to death. Taking chances with other people’s lives and time is not something to do lightly — that’s why Rupert Brooke might have been a miserable general, too much motivated by adolescent dreams of glory to be given the responsibility of leadership.
January 1, 2010, 12:10 pmSW says:
Oh, lighten up, Dave.
January 1, 2010, 1:32 pmTatil says:
I guess the difficulty lies in figuring out who actually is taking part.
Sure, right after you stand up and disavow your religion’s present and past barbarism.
January 1, 2010, 4:32 pmray ward says:
I agree with jgreene.
In addition, we need a domestic group of American revolutionaries, vintage 1776. No compromise. We hold these truths to be self-evident. And if you don’t, then you are a traitor. And we all know how to deal with traitors… Not conservatives, revolutionaries.
January 2, 2010, 1:32 amBoy, I just can’t wait to fly now… : PassageMaker China says:
[...] Interesting article on counter-terrorism here. [...]
January 2, 2010, 12:27 pmGabriel McCall says:
Yes, of course execution matters. But good design takes that fact into account. If the designer is not actively considering the question of who’s going to be doing the work and how they’re likely to do it, he’s not doing his job.
Proper design means making it easy and natural for the execution team to execute. A process which can theoretically be done properly but only with the full attention of a highly-expert and strongly-motivated staff is not ready for deployment. You can’t just decide what you want people to do; you must begin by considering what they are likely to do and then find a way to bring the likely and the desired into agreement.
January 2, 2010, 12:43 pmTracy W says:
This reminds me of a book I once read on bioethics, one of the authors of an article in that book recommended that doctors consider fully all the implications of their treatments for patients, without bothering himself with the question of how doctors would find time to do this. The author didn’t even identify how doctors could determine if they had identified all the implications or not.
January 4, 2010, 6:06 am