Richard Posner, as I'm sure many of you know, is one of the nation's top "public intellectuals" in addition to his role as a judge on the 7th Circuit Court of Appeals.

Posner is gearing up to promote his new book, Catastrophe: Risk and Response. He is a first-rate legal mind but is not an expert on counterterrorism. So why is he opining on the 911 report?

As he says here while guest-blogging over at Larry Lessig's place:

[Yo]u don't have to be an expert in a field to criticize the experts, provided you know enough about the field to understand what the experts are saying and writing, to be able to spot internal contradictions and other logical lapses, sources of bias, arguments obviously not based on knowledge, carelessness in the use of evidence, lack of common sense, and mistaken predictions. These are the analytical tools that judges, who in our system are generalists rather than specialists, bring to the task of adjudicating cases in specialized fields of law.

Posner was referring to some criticism of his blog comments on global warming, but the point is equally applicable to Posner's sharply critical remarks on the 911 report.

Posner is complementary toward the narrative section of the report, but he offers some cogent analysis of the commissions's prescriptive failings. Here is the central thrust of his argument:

The way a problem is described is bound to influence the choice of how to solve it. The commission's contention that our intelligence structure is unsound predisposed it to blame the structure for the failure to prevent the 9/11 attacks, whether it did or not. And pressure for unanimity encourages just the kind of herd thinking now being blamed for that other recent intelligence failure -- the belief that Saddam Hussein possessed weapons of mass destruction.

So what Posner goes on to say is that it doesn't follow that deep structural problems are to blame for the 911 attacks. Rather, the problems are managerial.

He continues:

The tale of how we were surprised by the 9/11 attacks is a product of hindsight; it could not be otherwise. And with the aid of hindsight it is easy to identify missed opportunities (though fewer than had been suspected) to have prevented the attacks, and tempting to leap from that observation to the conclusion that the failure to prevent them was the result not of bad luck, the enemy's skill and ingenuity or the difficulty of defending against suicide attacks or protecting an almost infinite array of potential targets, but of systemic failures in the nation's intelligence and security apparatus that can be corrected by changing the apparatus.

That is the leap the commission makes, and it is not sustained by the report's narrative. The narrative points to something different, banal and deeply disturbing: that it is almost impossible to take effective action to prevent something that hasn't occurred previously. Once the 9/11 attacks did occur, measures were taken that have reduced the likelihood of a recurrence. But before the attacks, it was psychologically and politically impossible to take those measures.

Posner is pessimistic about the likelihood that we will foil the next round of spectacular terrorism on American soil -- he says there's no way we can know what's coming down the pike. While that echoes the Commission's claim that a "failure of imagination" was to blame, Posner is arguing something rather different: that this failure of imagination may have been the problem but that it is pretty much impossible to correct.

While he is pessimistic, he offers his own quick and dirty list of What Is To Be Done:

(1) Major buildings should have detailed evacuation plans and the plans should be communicated to the occupants.

(2) Customs officers should be alert for altered travel documents of Muslims entering the United States; some of the 9/11 hijackers might have been excluded by more careful inspections of their papers. Biometric screening (such as fingerprinting) should be instituted to facilitate the creation of a comprehensive database of suspicious characters. In short, our borders should be made less porous.

(3) Airline passengers and baggage should be screened carefully, cockpit doors secured and override mechanisms installed in airliners to enable a hijacked plane to be controlled from the ground.

(4) Any legal barriers to sharing information between the C.I.A. and the F.B.I. should be eliminated.

(5) More Americans should be trained in Arabic, Farsi and other languages in widespread use in the Muslim world. The commission remarks that in 2002, only six students received undergraduate degrees in Arabic from colleges in the United States. [! -ed.]

(6) The thousands of federal agents assigned to the ''war on drugs,'' a war that is not only unwinnable but probably not worth winning, should be reassigned to the war on international terrorism.

(7) The F.B.I. appears from the report to be incompetent to combat terrorism; this is the one area in which a structural reform seems indicated (though not recommended by the commission). The bureau, in excessive reaction to J. Edgar Hoover's freewheeling ways, has become afflicted with a legalistic mind-set that hinders its officials from thinking in preventive rather than prosecutorial terms and predisposes them to devote greater resources to drug and other conventional criminal investigations than to antiterrorist activities. The bureau is habituated to the leisurely time scale of criminal investigations and prosecutions. Information sharing within the F.B.I., let alone with other agencies, is sluggish, in part because the bureau's field offices have excessive autonomy and in part because the agency is mysteriously unable to adopt a modern communications system. The F.B.I. is an excellent police department, but that is all it is. Of all the agencies involved in intelligence and counterterrorism, the F.B.I. comes out worst in the commission's report.

So that's it.

He comes out in favor of a domestic intelligence agency along the lines of Britain's MI-5, but otherwise suggests that we can't do much beyond what has already been done. And in a moment that would make Ken White proud, he smacks Congress:

One excellent recommendation is reducing the number of Congressional committees, at present in the dozens, that have oversight responsibilities with regard to intelligence. The stated reason for the recommendation is that the reduction will improve oversight. A better reason is that with so many committees exercising oversight, our senior intelligence and national security officials spend too much of their time testifying.

Posner repeats a point made elsewhere but with more cliches (fighting the last war!):

Illustrating the psychological and political difficulty of taking novel threats seriously, the commission's recommendations are implicitly concerned with preventing a more or less exact replay of 9/11. Apart from a few sentences on the possibility of nuclear terrorism, and of threats to other modes of transportation besides airplanes, the broader range of potential threats, notably those of bioterrorism and cyberterrorism, is ignored.

Another contrarian point Posner makes is that it's not clear that Islamist terrorism is the problem:

The report states that the focus of our antiterrorist strategy should not be ''just 'terrorism,' some generic evil. This vagueness blurs the strategy. The catastrophic threat at this moment in history is more specific. It is the threat posed by Islamist terrorism.'' Is it? Who knows? The menace of bin Laden was not widely recognized until just a few years before the 9/11 attacks. For all anyone knows, a terrorist threat unrelated to Islam is brewing somewhere (maybe right here at home -- remember the Oklahoma City bombers and the Unabomber and the anthrax attack of October 2001) that, given the breathtakingly rapid advances in the technology of destruction, will a few years hence pose a greater danger than Islamic extremism. But if we listen to the 9/11 commission, we won't be looking out for it because we've been told that Islamist terrorism is the thing to concentrate on.

He connects this to his fears that the Commission is calling for too much centralization:

Indeed, the report suggests no current impediments to the flow of information within and among intelligence agencies concerning Islamist terrorism. So sharing is not such a problem after all. And since the tendency of a national intelligence director would be to focus on the intelligence problem du jour, in this case Islamist terrorism, centralization of the intelligence function could well lead to overconcentration on a single risk.

I'm not sure I agree -- only Islamist terrorism, it seems to me, is truly globally networked, strategic, apocalyptic, deeply rooted in a particular group of societies and their problems, and reliably capable of raising funds and finding willing martyrs. I am unconvinced that Aum Shinryko, the ELF, or right-wing militias are as much of a danger. Sure, we should watch those groups carefully. But we should be able to prioritize.

Posner concludes, somewhat fatalistically:

When the nation experiences a surprise attack, our instinctive reaction is not that we were surprised by a clever adversary but that we had the wrong strategies or structure and let's change them and then we'll be safe. Actually, the strategies and structure weren't so bad; they've been improved; further improvements are likely to have only a marginal effect; and greater dangers may be gathering of which we are unaware and haven't a clue as to how to prevent.

What do you think?