REPORT OF THE JOINT INQUIRY INTO THE TERRORIST ATTACKS OF SEPTEMBER 11, 2001 |
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ADDITIONAL
VIEWS AND APPENDICES TABLE OF CONTENTS Additional Views Of Members Sen. Richard C. Shelby Appendices Initial Scope Of Joint Inquiry Moussaoui Related FBI Field Agent Notes & Field
Office/Headquarters E-Mails ADDITIONAL VIEWS OF MEMBERS OF THE JOINT INQUIRY On December 10, 2002, the Report of the Joint Inquiry was voted on and approved by the House Permanent Select Committee on Intelligence and the Senate Select Committee on Intelligence. The following additional views were submitted by individual members of those committees. September 11 and the Imperative of Reform in the U.S. Intelligence Community
Additional Views
of Senator Richard C. Shelby December 10, 2002 "In actual practice, the successful end to the Cold War and the lack of any national intelligence disasters since then seem to militate in favor of keeping the existing structure until some crisis proves it to be in dire need of repair. ...Thus we are likely to live with a decentralized intelligence system -- and the impulse toward centralization -- until a crisis re-aligns the political and bureaucratic players or compels them to cooperate in new ways." -- Deputy Chief, CIA History Staff, publication dated 2001 Our country's Intelligence Community was born because of the devastating surprise attack the United States suffered at Japanese hands at Pearl Harbor on December 7, 1941. [1] In the wake of that disaster, America's political leaders concluded "that the surprise attack could have been blunted if the various commanders and departments had coordinated their actions and shared their intelligence." This was the inspiration behind the National Security Act of 1947, _______________ [1] Central Intelligence Origin and Evolution (Langley, Virginia: CIA. History Staff: CIA Center for the Study of Intelligence, 2001), from the Historical Perspective by Dr. Michael Warner [hereinafter "Warner"], at 2 & 18. 1 which "attempted to implement the principles of unity of command and unity of intelligence."2 Sixty years later, on September 11, 2001, we suffered another devastating surprise attack, this time by international terrorists bent upon slaughtering Americans in the name of their God. This second attack is the subject of the findings and recommendations of the unprecedented Joint Inquiry conducted by the Senate Select Committee on Intelligence (SSCI) and the House Permanent Select Committee on Intelligence (HPSCI). In this document, I offer my own assessments and suggestions, based upon my four and a half years as Chairman of the SSCI and one and a half years as its Vice Chairman. These additional views are intended to complement and expand upon the findings and recommendations of the Joint Inquiry. Long before the September 11 attacks, I made no secret of my feelings of disappointment in the U.S. Intelligence Community for its performance in a string of smaller-scale intelligence failures during the last decade. Since September 11 I have similarly hid from no one my belief that the Intelligence Community does not have the decisive and innovative leadership it needs to reform itself and to adapt to the formidable challenges of the 21st Century. In the following pages, I offer my suggestions about where our Intelligence Community should go from here. These views represent the distilled wisdom of my eight years on the SSCI, of innumerable hearings, briefings, and visits to sensitive sites and facilities, and of thousands of man-hours of diligent work by intelligence oversight professionals on the SSCI staff over several years. Most of all, these Additional Views represent the conclusions I have reached as a result of the work of our Joint Inquiry Staff and the many private and public committee hearings we have had into the intelligence failures that led up to September 11. _______________ 2 Warner, supra, at 1. 2 I hope that the American public servants who inherit responsibility for these matters during the 108th Congress and the second half of President Bush's first term will carefully consider my arguments herein. Thousands of Americans have already been killed by the enemy in the war declared against us by international terrorists, and though we have enjoyed some signal successes since our counteroffensive began in late September 2001, our Intelligence Community remains poorly prepared for the range of challenges it will confront in the years ahead. Too much has happened for us to be able to conclude that the American people and our national security interests can be protected simply by throwing more resources at agencies still fundamentally wedded to the pre-September 11 status quo. I salute the brave and resourceful Americans -- both in and out of uniform -- who are even at this moment taking the fight to the enemy in locations around the world. These patriots, however, deserve better than our government's recommitment to the bureaucratic recipes that helped leave us less prepared for this crisis than we should have been. I hope that the Joint Inquiry's report -- and these Additional Views thereto -- will help spur the kind of broad-ranging debate in Congress, within the Administration, and among the American public that our present circumstances deserve. The road to real intelligence reform is littered with the carcasses of forgotten studies and ignored reports. We cannot afford to let the results of this unprecedented Joint Inquiry be forgotten as well. The American people will not forgive us if we fail to make the changes necessary to ensure that they are better protected in the future. Executive Summary 3 Community Structure and Organization. With respect to the structure and organization of the U.S. Intelligence Community (IC), the story of counterterrorism (CT) intelligence work before September 11 illustrates not only the unwillingness of the Director of Central Intelligence (DCI) fully to exercise the powers he had to direct resources and attention to CT, but also the institutional weakness of the DCI's office within the Community. Caught ambiguously between its responsibilities for providing national-level intelligence and providing support to the Department of Defense to which most IC agencies owe their primary allegiance, the Community proved relatively unresponsive to the DCI's at least partly rhetorical 1998 declaration of "war" against Al-Qa'ida. The fragmented nature of the DCI's authority has exacerbated the centrifugal tendencies of bureaucratic politics and has helped ensure that the IC responds too slowly and too disjointedly to shifting threats. Ten years after the end of the Cold War, the Community still faces inordinate difficulty responding to evolving national security threats. To help alleviate these problems, the office of the DCI should be given more management and budgetary authority over IC organs and be separated from the job of the CIA Director, as the Joint Inquiry suggests in urging that we consider reinventing the DCI as the "Director of National Intelligence." Moreover, the DCI (or DNI, as the case may be) should be compelled actually to use these powers in order to effect real IC coordination and management. An Intelligence Community finally 4 capable of being coherently managed as a Community would be able to reform and improve itself in numerous ways that prove frustratingly elusive today -- ultimately providing both its national-level civilian and its military customers with better support. Congress should give serious consideration, in its intelligence reform efforts, to developing an approach loosely analogous to that adopted by the Goldwater-Nichols Act in reforming the military command structure in order to overcome entrenched bureaucratic interests and forge a much more effective "joint" whole out of a motley and disputatious collection of parts. Most importantly, Congress and the Administration should focus upon ensuring an organizational structure that will not only help the IC respond to current threats but will enable our intelligence bureaucracies to change themselves as threats evolve in the future. We must not only learn the lessons of the past but learn how to keep learning lessons as we change and adapt in the future. To this end, the IC should adopt uniform personnel and administrative standards in order to help ensure that its personnel and organizational units remain unique and valuable individual resources but also become administratively fungible assets, capable of being reorganized and redirected efficiently as circumstances demand. It will also be necessary to break the mindset within the IC that holds that only intelligence professionals actually employed by the traditional collection agencies can engage in collection or analysis of those agencies' signature types of intelligence. The traditional collection agencies , expertise in "their" areas should be used to enrich the Community's pool 5 of intelligence know-how rather than as barriers to entry wielded in defense of bureaucratic and financial "turf." Instead, the collection agencies should be charged with certifying -but not running or controlling -training curricula within other IC agencies that will produce competent specialists in the relevant fields. Ultimately, Congress and the Administration re-examine the basic structure of the intelligence provisions of the National Security Act of 1947 in light of the circumstances and challenges our country faces today. Returning to these roots might suggest the need to separate our country's "central" intelligence analytical functions from the resource-hungry collection responsibilities that make agencies into self-interested bureaucratic "players." Information-Sharing. Our Joint Inquiry has highlighted fundamental problems with information-sharing within the JC, depriving analysts of the information access they need in order to draw the inferences and develop the conclusions necessary to inform decision- making. The IC's abject failure to "connect the dots" before September 11, 2001 illustrates the need to wholly re-think the Community's approach to these issues. The CIA's chronic failure, before September 11, to share with other agencies the names of known Al-Qa'ida terrorists who it knew to be in the country allowed at least two such terrorists the opportunity to live, 6 move, and prepare for the attacks without hindrance from the very federal officials whose job it is to find them. Sadly, the CIA seems to have concluded that the maintenance of its information monopoly was more important that stopping terrorists from entering or operating within the United States. Nor did the FBI fare much better, for even when notified in the so-called "Phoenix Memo" of the danger of Al-Qa'ida flight school training, its agents failed to understand or act upon this information in the broader context of information the FBI already possessed about terrorist efforts to target or use U .S. civil aviation. The CIA watchlisting and FBI Phoenix stories illustrate both the potential of sophisticated information- sharing and good information-empowered analysis and the perils of failing to share information promptly and efficiently between (and within) organizations. They demonstrate the need to ensure that intelligence analysis is conducted on a truly "all-source" basis by experts permitted to access all relevant information -no matter where in the IC it happens to reside. The IC's methods of information-sharing before September 11 suffered from profound flaws, and in most respects still do. In order to overcome bureaucratic information-hoarding and empower analysts to do the work our national security requires them to do, we need to take decisive steps to reexamine the fundamental intellectual assumptions that have guided the IC's approach to managing national security information. As one witness told the Joint Inquiry, we may need "to create a new paradigm wherein 'ownership' of information belonged with the analysts 7 and not the collectors." In addition, the imbalance between analysis and collection makes clear that in addition to being empowered to conduct true "all-source" analysis, our analysts will also need to be supplied with powerful new tools if they are to provide analytical value-added to the huge volumes of information the IC brings in every day. Recent development and initiatives in comprehensive databasing and data-mining suggest that solutions to these challenges may be within our reach. The information-analysis organization within the new Department of Homeland Security has has great potential to contribute to effective CT information-sharing and analyst-empowerment within the U.S. Government and Congress has given it the legal tools it needs to play this crucial catalytic role. Meanwhile, Congress should take decisive steps to help stem our contemporary culture of endemic "leaking" of national security information to the media, So as better to ensure that our analysts remain better informed about terrorists than the terrorists do about them. Intelligence-Law Enforcement Coordination. The September 11 story also illustrates the tremendous problems of coordination between U.S. law enforcement and intelligence entities that developed out of a long series of misunderstandings, timorous lawyering, and mistaken assumptions. Congress and the Administration have made progress since September 11 in breaking down some of the mythologies that impeded coordination. Thanks to Congress' passage of the USA PATRIOT Act of 2001 and the Justice Department's success in appellate litigation to compel the Foreign Intelligence Surveillance Court to implement these 8 changes, for instance, the legally fallacious "Wall" previously assumed to exist between intelligence and law enforcement work has been breached and years of coordination-impeding Justice Department legal reticence has been overcome. With luck, we will never again see the kind of decision-making exhibited when the CIA refused to share information with FBI criminal investigators about two known Al-Qa'ida terrorists (and soon- to-be suicide hijackers) in the United States, and when the FBI -only days before the September 11 attacks -- deliberately restricted many of its agents from participating in the effort to track down these terrorists on the theory that this was work in which criminal investigators should play no role. Hopefully we will also no longer see the kind of fundamental legal misunderstanding displayed by FBI lawyers in the Moussaoui case, in which investigators in Minneapolis were led on a three-week wild goose chase by a faulty analysis of the Foreign Intelligence Surveillance Act (FISA). It will take sustained Congressional oversight in order to ensure compliance with the information-sharing authorities and mandates of the USA PATRIOT Act, but it is imperative that we ensure that such problems do not recur. To help achieve this, Congress should modify the Act's "sunset" provisions and should approve legislation proposed by Senators Kyl and Schumer to modify FISA 's "foreign power" standard. Domestic Intelligence. The story of September 11 is also replete with the FBI's problems of internal counterterrorism and 9 counterintelligence (CI) coordination, information-sharing, and basic institutional competence. The FBI was unaware of what information it possessed relevant to internal terrorist threats, unwilling to devote serious time, attention, or resources to basic intelligence analytical work, and too organizationally fragmented and technologically impoverished to fix these shortfalls even had it understood them and really wished to do so. These problems persisted, moreover, through a major FBI reorganization ostensibly designed to address these problems, which had been well known for years. The FBI's problems in these respects suggests that the Bureau's organizational and institutional culture is terribly flawed, and indeed that the Bureau -- as a law enforcement organization -is fundamentally incapable, in its present form, of providing Americans with the security they require against foreign terrorist and intelligence threats. Modern intelligence work increasingly focuses upon shadowy transnational targets, such as international terrorist organizations, that lack easily- identifiable geographic loci, organizational structures, behavioral patterns, or other information "signatures." Against such targets, intelligence collection and analysis requires an approach to acquiring, managing, and understanding information quite different from that which prevails in the law enforcement community. The United States already has a domestic intelligence agency in the form of the FBI, but this agency is presently unequal to the challenge, and provides neither first- rate CT and CI competence nor the degree of civil liberty protections that would obtain 10 were domestic intelligence collectors deprived of their badges, guns, and arrest powers and devoted wholly to CI and CT tasks. This pattern of dysfunction compels us to consider radical reform at the FBI. A very strong argument can be made for removing the CI and CT portfolios from the Bureau, placing them in a stand-alone member of the Intelligence Community that would be responsible for domestic intelligence collection and analysis but would have no law enforcement powers or responsibilities. Alternatively, it might be sufficient to separate the CI and CT functions of the FBI into a semi- autonomous organization that reports to the FBI director for purposes of overall coordination and accountability, but which would in every other respect be wholly separate from the "criminal" components of the FBI. A third approach might be to move the FBI's CI and CT functions to the new Department of Homeland Security, thereby adding a domestic collection element to that organization's soon-to-be-created Undersecretariat for Information Analysis and Infrastructure Protection. Some kind of radical reform of the FBI is long overdue, and should be a major item on the "intelligence reform" agenda for the 108th Congress. The Bush Administration and the 108th Congress should make it a high priority to resolve these issues, and to put the domestic components of our Intelligence Community on a footing that will enable them to meet the challenges of the 21st century. Human Intelligence. The status quo of IC approaches to human intelligence (HUMINT) was tested against the Al-Qa'ida threat and found 11 wanting. The CIA's Directorate of Operations (DO) has been too reluctant to develop non- traditional HUMINT platforms, and has stuck too much and for too long with the comparatively easy work of operating under diplomatic cover from U.S. embassies. This approach is patently unsuited to HUMINT collection against nontraditional threats such as terrorism or proliferation targets, and the CIA must move emphatically to develop an entirely new collection paradigm involving greater use of non- official cover (NOC) officers. Among other things, this will necessitate greater efforts to hire HUMINT collectors from ethnically and culturally diverse backgrounds, though without a fundamental shift in the CIA's HUMINT paradigm diversity for diversity's sake will be of little help. The CIA should also spend more time developing its own sources, and less time relying upon the political munificence of foreign liaison services. Covert Action. The CIA's decidedly mixed record of success in offensive operations against Al- Qa'ida before September 11 illustrates the need for the President to convey legal authorities with absolute clarity. If we are not to continue to encourage the kind of risk-averse decision- making that inevitably follows from command-level indecision, our intelligence operators risking their lives in the field need to know that their own government will make clear to them what their job is and protect them when they do it. Congress should bear this in mind when conducting its legitimate oversight of covert action programs in the future, even as it 12 struggles to cope with the oversight challenges posed by the potential for the Defense Department to take a greater role in such activities. Accountability. The story of September 11 is one replete with failures: to share information, to coordinate with other agencies; to understand the law, follow existing rules and procedures, and use available legal authorities in order to accomplish vital goals; to devote or redirect sufficient resources and personnel to counterterrorism work; to communicate priorities clearly and effectively to IC components; to take seriously the crucial work of strategic counterterrorism analysis; and most importantly, to rise above parochial bureaucratic interests in the name of protecting the American people from terrorist attack. The DCI has declared us to be at "war" against Al-Qa'ida since 1998, and as the President has declared, we have really been so since at least September 11. Some have suggested that this means that we should postpone holding anyone accountable within the Intelligence Community until this war is over and the threat recedes. I respectfully disagree. The threat we face today is in no danger of subsiding any time soon, and the problems our Intelligence Community faces are not ones wisely left unaddressed any longer. Precisely because we face a grave and ongoing threat, we must begin reforming the Community immediately. Otherwise we will be unable to meet this threat. The metaphor of "war" is instructive, for wise generals do not hesitate to hold their subordinates 13 accountable while the battle still rages, disciplining or cashiering those who fail to do their duty. So also do wise Presidents dispose of their faltering generals under fire. Indeed, failures in wartime are traditionally considered less excusable, and are punished more severely, than failures in times of peace. Nor should we forget that accountability has two sides. It is also a core responsibility of all good leaders to reward those who perform well, and promote them to positions of ever greater responsibility. In urging the Intelligence Community to hold its employees accountable, the IC must therefore both discipline those who fall down on the job and reward those who have excelled. For these reasons, it is disappointing to me that despite the Joint Inquiry's explicit mandate to "lay a basis for assessing the accountability of institutions and officials of government" and despite its extensive findings documenting recurring and widespread Community shortcomings in the months and years leading up to September 11, the Joint Inquiry has not seen fit to identify any of the individuals whose decisions left us so unprepared. I urge President Bush to examine the Joint Inquiry's findings in order to determine the extent to which he has been well served by his "generals" in the Intelligence Community. Some have argued that we should avoid this issue of accountability lest we encourage the development of yet more risk-aversion within the 14 Community. I do not believe this is the case. The failings leading up to September 11 were not ones of impetuousness, the punishment for which might indeed discourage the risk-taking inherent in and necessary to good intelligence work. The failures of September 11 were generally ones not of reckless commission but rather of nervous omission. They were failures to take the necessary steps to rise above petty parochial interests and concerns in the service of the common good. These are not tailings that will be exacerbated by accountability. Quite the contrary. And, more importantly, it is clear that without real accountability, these many problems will simply remain unaddressed -leaving us needlessly vulnerable in the future. I advocate no crusade to hold low-level employees accountable for the failures of September 11. There clearly were some individual failings, but for the most part our hard-working and dedicated intelligence professionals did very well, given the limited tools and resources they received and the constricting institutional culture and policy guidance they faced. The IC's rank-and-file deserve no discredit for resource decisions and for creating these policies. Ultimately, as the findings of the Joint Inquiry make clear -though they stop short of actually saying so -accountability must begin with those whose job it was to steer the IC and its constituent agencies through these shoals, and to ensure that all of them cooperated to the best of their abilities in protecting our national security. Responsibility must lie with 15 the leaders who took so little action for so long, to address problems so well known. In this context, we must not be afraid publicly to name names. The U.S. Intelligence Community would have been far better prepared for September 11 but for the failure of successive agency leaders to work wholeheartedly to overcome the institutional and cultural obstacles to inter-agency cooperation and coordination that bedeviled counterterrorism efforts before the attacks: DCls George Tenet and John Deutch, FBI Director Louis Freeh, and NSA Directors Michael Hayden and Kenneth Minnihan, and NSA Deputy Director Barbara McNamara. These individuals are not responsible for the disaster of September 11, of course, for that infamy belongs to Al-Qa'ida's 19 suicide hijackers and the terrorist infrastructure that supported them. As the leaders of the United States Intelligence Community, however, these officials failed in significant ways to ensure that this country was as prepared as it could have been. I. Intelligence Community Structure A. The DCI's Problematic "War" of 1998 The Director of Central Intelligence (DCI) testified before Congress in February 2001 that he considered Usama bin Laden and AI-Qa'ida to be the most important national security 16 threat faced by the United States.3 In December 1998, in fact-- in the wake of the terrorist bombings of the U.S. embassies in Dares Salaam, Tanzania, and Nairobi, Kenya -he had proclaimed that "[w]e are at war" with Al-Qa'ida.4 The story of this "war," however, underlines the problematic nature of the U.S. Intelligence Community's management structure. As the Joint Inquiry Staff (JIS) has noted in its presentations to the Committees, "[d]espite the DCI's declaration of war in 1998, there was no massive shift in budget or reassignment of personnel to counterterrorism until after September 11, 2001." [5] Indeed, the amount of money and other resources devoted to counterterrorism (CT) work after the DCI's "declaration of war" in 1998 barely changed at all. The budget requests sent to Congress relating to the CIA's Counterterrorism Center (CTC), for instance, rose only marginally -in the low single-digit percentages each year into Fiscal Year 2001 -and at rates of increase essentially unchanged from their slow growth before the "war ." (These requests, incidentally, were met or exceeded by Congress, even to the point that the ClA ended Fiscal Year 2001 with millions of dollars in counterterrorism money left unspent. [6] In his 1998 "declaration of war," the DCI had declared to his deputies at the CIA that "I _______________ 3 Senate Select Committee on Intelligence, hearing into "Worldwide Threats to National Security" (February 7 , 2001) (remarks of George Tenet, declaring that "Osama bin Laden and his global network of lieutenants and associates remain the most immediate and serious threat.") 4 JIS, written statement submitted to joint SSCI/HPSCI hearing (September 18, 2001), at 9. 5 JIS, written statement submitted to joint SSCI/HPSCI hearing (September 18, 2001), at 10. 6 The detailed figures remain classified. 17 want no resources or people spared in this effort, either inside the CIA or the Community." [7] CIA officials also told the HPSCI on March 4, 1999 -- in a written response to questions about the CIA's proposed budget for Fiscal Year 2000 -- that "the Agency as a whole is well positioned" to work against Al-Qa'ida targets, and that they were "confident that funding could be redirected internally, if needed, in a crisis." [8] _______________ 7 JIS, written statement submitted to joint SSCI/HPSCI hearing (September 18, 2001), at 9. 8 Central Intelligence Agency, response to "HPSCI Questions for the Record" (March 4, 1999) (declassified portion). 18 Shortly thereafter, however, a study conducted within the CTC found that it was unable to carry out more ambitious plans against Al-Qa'ida for lack of money and personnel, [9] and CIA officials reported being "seriously overwhelmed by the volume of information and workload" before September 11,2001. [10] According to former CTC chief Cofer Black, "before September 11, we did not have enough people, money, or sufficiently flexible rules of engagement." [11] The troops fighting the DCI's "war," in short, didn't have the support they needed. (Even when the DCI requested additional counterterrorism money from Congress, it almost invariably did so in the form of supplemental appropriations requests -thus denying Community managers the ability to prepare long-term plans and programs because these increases were not made a part of the Community's recurring budgeting process.) Under the National Security Act of 1947, the DCI has considerable budgetary power over the U.S. Intelligence Community. His consent is needed before agency budget requests can be folded into the National Foreign Intelligence Program (NFIP) budget proposal, and he has authority over reprogramming both money and personnel between agencies.[12] Simultaneously serving as Director of the CIA, the DCI also has essentially complete authority over that _______________ 9 This was the conclusion presented to an internal CIA conference on September 16, 1999. Further information about this internal study, however, has not been declassified. 10 JIS, written statement submitted to joint SSCI/HPSCI hearing (September 18, 2001), at 13. 11 Cofer Black, written statement submitted to joint SSCI/HPSCI hearing (September 26, 2001), at 10. 12 See 50 U.S.C. § 403-4(b), (c), and (d). 19 organization, both with respect to budget requests and day-to-day management. If a DCI were willing actually to use the full range of powers available to him, these statutory levers would give him considerable influence over the Community. One of the great unanswered questions of our September 11 inquiry, therefore, is how the DCl could have considered himself to be "at war" against this country's most important foreign threat without bothering to use the full range of authorities at his disposal in this fight. Unfortunately, part of the reason for this failure is the current DCI's longstanding determination - which he expressed quite frankly to some of us at a SSCI off-site meeting -that he does not really consider himself to be DCI. His principal interest and focus in office, he has told us, revolves around his role as head of the CIA, rather than his role as head of the Community as a whole. (The DCI has also publicly supported the creation of an Undersecretary of Defense for Intelligence [USDI], which seems likely only to reduce his influence over the Defense components of the U.S. Intelligence Community.) Part of the reason may also lie in the merely rhetorical nature of the DCI's 1998 proclamation: since September 11 the DCI has pointed to his "declaration of war" as a token of his pre-September 11 seriousness of purpose against Al-Qa'ida, but it does not appear to have been circulated or known outside a small circle of intimates before that date. And part of the reason that more was not done may also lie at higher levels of political authority. The nature of the "war" contemplated in 1998 certainly pales in comparison to the use of that term after September 11, and officials have suggested in the press that they undertook, as much as was politically possible at the time. [13] _______________ 13 See, e.g., Barton Gellman, "Broad Effort Launched After '98 Attacks," Washington Post (December 19, 2001), at Al (quoting former Assistant Secretary of State for South Asian Affairs Karl Inderfurth that "Until September 11 th, there was certainly not any groundswell of support to mount a major attack on the Taliban."); Bob Drogin, "U.S. Had Plan for Covert Afghan Options Before 9/11," Los Angeles Times (May 18, 2002), at A14 (quoting former Clinton Administration State Department official that invasion of Afghanistan was "really not an option" before 20 2. Reinvigorating the Office of the DCI? The most obvious problem with respect to the IC's ability to act as a coherent and effective whole is the fact that more than 80 percent of its budgets and personnel resources are controlled by the Department of Defense (DOD). The DCI may be the titular head of the Intelligence Community, but the National Security Agency (NSA), National Imagery and Mapping Agency (NIMA), National Reconnaissance Office (NRO), Defense Intelligence _______________ September 11). 14 Section 104 only discusses the NFIP. See 50 U.S.C. §§ 403-4(b) (budget approval); 403-4(c) (reprogramming); & 403-4(d) (transfer of funds and/or personnel). 21 Agency (DIA), and military service intelligence arms are all DOD organizations and report first and foremost to the Secretary of Defense. (The heads of NSA and DIA, and the service intelligence agencies are active duty military officers, and the NRO Director is an Undersecretary of the Air Force.) Only the CIA itself -- and a comparatively tiny "Community Management Staff' (CMS) -is unambiguously under the authority of the DCI. The domination of the IC by the Department of Defense is
perhaps the most fundamental
bureaucratic fact of life for anyone who aspires to manage the Community
as a whole. As one
organizational history of the CIA has noted, "[t]he DCI never became the
manager of the
Intelligence Community ," and decisions over the years to "us[e] declining
resources first and
foremost to support military operations effectively blunted the
Congressional emphasis upon
centralization by limiting the wherewithal that DCls and agency heads
could devote to national Nor is this arrangement entirely accidental. This awkward balance of authority between DCI and the Secretary of Defense reflects an inability finally to decide whether agencies such as NSA and NIMA are "really" national intelligence agencies that should report to the DCI or "combat support agencies" that should report to DOD. The U.S. military, of course, is an enormous -and, in wartime, perhaps the most important -consumer of certain sorts of intelligence product, particularly signals intelligence (SIGINT), photographic and other imagery (IMINT), and mapping products. Without immediate access to such support, our armed forces would have difficulty knowing where they are, where the enemy is, and what the enemy is doing. The reason that the military possesses integral service intelligence arms and cryptologic support _______________ 15 Warner, supra, at 8 & 17. 22 components, in fact, is precisely because the imperatives of war planning and operational decision- making do not permit these functions to be entirely separated from the military chain of command. This attitude, however, also exists at the national level: DOD officials insist that organizations such as NSA and NIMA are, above all else, "combat support agencies." Implicitly, this means that in any unresolvable resource-allocation conflict between the Secretary of Defense and the DCI, the Secretary must prevail. The difficulty lies in the fact that the DOD components of the Intelligence Community are also vital parts of the national intelligence system, and provide crucial intelligence products to national- evel consumers, including the President. To the extent that DOD's domination of IC resources impedes the Community's ability to provide adequate national-level support -and to the extent that such high-level bureaucratic stand-offs hamper the IC's ability to reorient itself against dangerous emerging threats, or to reform itself in response to intelligence failures -we face grave challenges. These problems have led many to suggest the need finally to empower the DCI to act as the true head of the U.S. Intelligence Community. At one pole, such suggestions have included proposals to give the DCI full budgetary and management authority over all IC components -- effectively taking them out of DOD and establishing the DCI as something akin to a cabinet- level "Secretary of Intelligence." (Former National Security Advisor Brent Scow croft has allegedly recommended something to this effect, but his report has never been released -- supposedly due to Defense Department opposition.) At the other pole, some in Congress have suggested merely ending the "dual-hatted" nature of the DCI's office by separating the roles of DCI and CIA Director. 23 In my view, these two poles leave us with a Hobson's choice between the virtually unworkable and the clearly undesirable. Creating a true DCI would entail removing dozens of billions of dollars of annual budgets from the Defense Department, and depriving it of "ownership" over "its" "combat support organizations." In contemporary Washington bureaucratic politics, this would be a daunting challenge; DOD and its Congressional allies would make such centralization an uphill battle, to say the least. Indeed, if anything, the trend in the post-September 11 world is against DCI centralization. DOD has asked for, and Congress has now established, a new Undersecretary of Defense for Intelligence (USDI) to oversee and coordinate DOD's intelligence components, creating what may well be, in effect, a Pentagon DCI -and one, moreover, likely to have at least as much influence over the agencies in question than the DCI himself. OOD's Joint Intelligence Task Force for Counterterrorism (JITF-CT) already reproduces at least some of the analytical functions of the CIA's CTC, DIA analysts already supply all-source analysis across a wide range of functional and regional specialties, and press accounts suggest that the Pentagon is increasingly interested in establishing its own parallel covert action capability using Special Operations Forces (SOF) troops. [16] DOD is, in short, creating a parallel universe of intelligence organs increasingly independent of the DCI. Particularly under a DCI who prizes his role as CIA Director above his Community responsibilities, the prospects for DCI centralization are grim indeed. On the other hand, without more, proposals merely to separate the DCI ' s office from that of the CIA Director will likely only make the situation worse. At the moment, one of the few _______________ 16 Susan Schmidt & Thomas E. Ricks, "Pentagon Plans Shift in War on Terror; Special Operations Command's Role to Grow With Covert Approach," Washington Post (September] 8, 2002), at A I. 24 sources of bureaucratic power the DCI enjoys is his "ownership" of what is, in theory at least, the nation's premier intelligence analysis organization -and its only specialist HUMINT collection agency -the CIA. Heading the CIA gives the DCI at least "a seat at the table" in national-level debates: a DCI without the limited but non-trivial bureaucratic clout of the CIA behind him would find himself even more marginalized and ineffective than the office is today. My experience with the fragmented and disjointed Community management process have led me to conclude that the best answer is probably to give more management and budgetary authority over IC organs to an effective DCI focused upon issues of IC coordination and management -- as the Joint Inquiry has suggested by urging that we consider the creation of a "Director of National Intelligence" with powerful new Community-management authority. Because he will need to use these new powers to arbitrate between and set policies for self- interested bureaucratic "players" within the Intelligence Community rather than be one of them, this augmented DCI (or DNI, as the case may be) should not simultaneously hold the position of CIA Director. The "combat support" argument is, in my view, overblown. There is nothing to suggest that organizations like NSA and NIMA would deny crucial support to the Defense Department the moment that they were taken out of the DOD chain of command. Any lingering doubts about the effectiveness of the Pentagon's "combat support" from intelligence agencies could be allayed by improving the effectiveness and resources devoted to the services' organic intelligence and cryptologic components. (Civilian directors ofNSA and NIMA -appointed with DCI and Secretary of Defense concurrance -could serve as Assistant DCIs for SIGINT and IMINT, respectively, serving alongside an Assistant DCI for Military Intelligence, a high-ranking military officer charged with ensuring that the IC is at all times aware of and responsive to 25 military needs.) Best of all, an Intelligence Community finally capable of being coherently managed as a Community would be able to reform and improve itself in numerous ways that prove frustratingly elusive today -ultimately providing both its national-level civilian and its warfighter customers with better support. Congress took a remarkable step in reforming the basic structure of the military command system in 1986 with the passage of the Goldwater-Nichols legislation. [17] This landmark legislation -which reformed the roles of the Chiefs of Staff and created an entirely new system of regional unified commanders -tilted at what were thought to be bureaucratic windmills and ran into fearsome bureaucratic opposition, but it succeeded brilliantly and helped our armed forces find new strength and coherence in war-winning "joint" operations. The success of the Goldwater-Nichols reforms should be a lesson to Intelligence Community reformers today, for it teaches that it is possible sometimes to overcome entrenched bureaucratic interests and forge a much more effective whole out of a motley and disputatious collection of parts. Unfortunately, Congress, the Administration, and the American public have yet to engage in much of a debate about these issues. Perhaps nothing can shock us into serious debates about the fundamental structure of our Intelligence Community if the horror of September 11 cannot, but I am hopeful that the SSCI and HPSCI will make these issues a centerpiece of their agenda for the 108th Congress. I urge them strongly to do so. C. An Agile and Responsive IC _______________ 17 Public Law 99-433 (October 1, 1986). 26 As the 108th Congress takes up these reform challenges, I would like to offer some additional suggestions that I believe would help the IC both meet the challenges it faces today and be prepared for those it may face tomorrow. One of the roots of our problems in coping with threats such as that posed by AI-Qa'ida beginning in the 1990s is that the tools with which we have had to fight transnational terrorism were designed for another era. The U.S. Intelligence Community is hard-wired to fight the Cold War, engineered in order to do a superlative job of attacking the intelligence "targets" presented by a totalitarian superpower rival but nowhere near as agile and responsive to vague, shifting transnational threats as we have needed it to be. The lesson of September 11, therefore, should be not simply that we need to reform ourselves so as to be able to address the terrorist threat but also that we need an Intelligence Community agile enough to evolve as threats evolve, on a continuing basis. Hard-wiring the IC in order to fight terrorists, I should emphasize, is precisely the wrong answer, because such an approach would surely leave us unprepared for the next major threat, whatever it turns out to be. Our task must be to ensure that whatever we do to "fix" the problems that helped leave us unprepared in the autumn of 2001, we make sure that the Intelligence Community can change, adapt, and move in unanticipated directions in the future. Otherwise the IC will face little but a future punctuated by more intelligence failures, more Congressional inquiries, and more Commissions. This is perhaps the most powerful argument for strengthening the DCI's ability to lead the Intelligence Community as a community, insofar as it is notoriously difficult to reorient large bureaucracies under the best of circumstances, and virtually impossible to do so simply by persuasion. But there are additional steps that Congress and the Administration should consider in order to make the IC "quicker on its feet" in anticipating and preparing for -- and, where that 27 fails, responding to - future threats. Well short of putting the entire Community under a "Secretary for Intelligence," one way to greatly augment the ability of the Intelligence Community to adapt flexibly and effectively to future threats would be to increase the degree of uniformity in its personnel management system. A homogenized payment and benefits structure for the Community would not necessarily require putting the agencies themselves under the DCI's operational command. It would, however, enable the IC to move personnel and reorganize organizational structures on an ad hoc basis much more effectively in response to future developments. Achieving such organizational flexibility -- and the conceptual flexibility that must accompany it - will be essential if the Community is not simply to replace its dangerous and inflexible Cold War hard- wiring with an equally rigid and unadaptable CT paradigm. This is what might be called the "meta- lesson" of our current round of "lessons learned" studies of intelligence failures: we must not only learn the lessons of the past but learn how to keep learning lessons as we change and adapt in the future. Adopting uniform personnel standards would help the Community ensure that its personnel and organizational units remain unique and valuable individual resources but they would also become administratively fungible assets, capable of being reorganized and redirected efficiently as circumstances demand. The CIA, to its credit, has experimented in recent years with approaches to organizing "virtual stations" -ad hoc issue-focused organizations mimicking the structure of an overseas Directorate of Operations outpost, but simply existing within CIA Headquarters. In the future, the IC as a whole will need to learn from (and improve upon) this concept, by developing ways to "swarm" personnel and resources from various portions of the Community upon issues of 28 particular importance as circumstances demand. At the same time, the IC will have to be willing to move personnel resources out of programs and organizations that no longer fulfil their missions, or whose targets have been superseded in priority lists by more important threats. We must, in short, be willing to build new structures and raze old ones in a continual process of "creative destruction" not unlike competitive corporate approaches used in the private sector. Concomitant with this, it will also be necessary to break the artificial definitional monopoly within the IC that holds that only intelligence professionals actually employed by the traditional collection agencies can engage in collection or analysis of those agencies' signature types of intelligence. We should be open to unconventional HUMINT collection opportunities, for instance, and should not deny non-CIA analysts a chance to provide the analytical "value- added" that can be obtained by making them more aware than they are today of the origins of their information. And we should reject the self-satisfied assumptions of NSA managers that only NSA personnel can be trusted with analyzing "raw" SIGINT data. (Unfortunately, the Administration seems to be heading in precisely the wrong direction in this respect. If recent reports are to be believed, the President intends to ratify the information-monopolistic status quo by issuing an Executive Order to make Homeland Security intelligence analysts dependent upon the traditional IC collection bureaucracies to tell these analysts what information is relevant. [18]) The traditional collection agencies do have valuable expertise in "their" areas, but this expertise should be used to enrich the Community's pool of intelligence expertise rather than simply as barriers to entry wielded in defense of bureaucratic and financial "turf." Instead, the collection agencies should be charged with certifying -but not running or controlling -training _______________ 18 See, e.g., Dan Eggen & john Mintz, "Homeland Security Won't Have Diet of Raw Intelligence," Washington Post (December 6,2002) at 43. 29 curricula within other IC agencies that will produce competent specialists in the relevant fields. A SIGINT analyst, for instance, should be properly trained to meet the relevant professional standards (e.g., compliance with USSID 18), but there is no reason why he must receive his paycheck from NSA in order to make important contributions to the Community Agencies such as CIA and NSA with special expertise in a particular "INT" should become jealous advocates and guardians of high professional standards within the Community as a whole, but they should no longer be permitted to use their expertise to maintain parochial information monopolies. Fundamentally, Congress and the Administration should be willing, over the coming months, carefully to examine the basic structure of the intelligence provisions of the National Security Act of 1947 in light of the circumstances and challenges our country faces today. At a time in which the State Department and the military services provided the only thing resembling national-level information collection and analytical expertise in the entire U.S. Government, the Act set up a "central" intelligence agency to be an objective source of information and to stand above the bureaucratic political infighting of the day. It was to be what Colonel William ("Wild Bill") Donovan had called for in October 1946: "a centralized, impartial, independent agency that is qualified to meet the atomic age." [19] In 2002, however, the CIA no longer quite fulfils that function, now existing as one of many bureaucratic fiefdoms within a sprawling -and Defense -- dominated -- Intelligence Community. _______________ 19 Thomas F. Troy, Donovan and the CIA: A History of the Establishment of the Central Intelligence Agency (Langley, Virginia: CIA Center for the Study of Intelligence, 1981), supra, at 382 (quoting Donovan); see also id. at 408 (noting that "Congress wanted CIA...[to be] free from undue military influence as well as Department control."); id. at 410 (noting that Donovan "recognized that the appropriate status for intelligence was independence and that such independence required the establishment of an 'agency' free of any other department of government"). 30 One possibility to which Congress and the Administration should give very careful consideration is whether we should return to the conceptual inspiration behind the intelligence-related provisions of the National Security Act of 1947: the need for a "Central" national level knowledge-compiling entity standing above and independent from the disputatious bureaucracies. Returning to these roots might suggest the need to separate our country's "central" intelligence analytical functions from the resource-hungry collection responsibilities that make agencies into self-interested bureaucratic "players" -that is, to separate human intelligence (HUMINT) collection into a specialized service that would, along with other collection agencies, feed information into a national-level purely analytical organization built around the core of the CIA's Directorate of Intelligence. (The resulting pure-analysis organization would arguably be the sole institution that could appropriately be run directly by a new Director of National Intelligence, who would serve as the overall head of the IC and as the President's principal intelligence advisor.) Whether or not we determine that this is the right answer, however -and howsoever we determine that any such agency would interact with a more empowered DCI -our opportunity seriously to consider such changes is now. II. Information-Sharing Perhaps the most fundamental problem illustrated by the findings of the Joint Inquiry Staff (JIS) in connection with the intelligence failures leading up to September 11 relates to the problem of persuading U.S. Intelligence Community agencies to share information efficiently and effectively. This problem is inextricably tied up with the longstanding problem of ensuring quality intelligence analysis within the Community, for without access to a broad range of information upon which to draw inferences and base conclusions, even the best individual 31 analysts necessarily find themselves gravely handicapped. There exists a fundamental tension in intelligence work between the need for security and the need for sharing information. Increasing the number of persons having access to a particular item of information inevitably leads to at least some increase in the likelihood of its compromise, either accidentally or deliberately (e.g., in a "leak" to the press or to a foreign power through espionage). Agencies which possess sensitive information, therefore, tend to prefer to restrict others' access to "their" information. (This is particularly true in an Intelligence Community institutional culture in which knowledge literally is power -in which the bureaucratic importance of an agency depends upon the supposedly "unique" contributions to national security it can make by monopolizing control of "its" data-stream.) On the other hand, perfectly secure information is perfectly useless information. Since the purpose of intelligence-gathering is to inform decision-making, restricting access inevitably degrades the value of having intelligence collectors in the first place. For good analysis to be possible, expert analysts must be able to perform what is called "all-source intelligence fusion" - drawing upon the available breadth of information in order to tease patterns of "signal" out of the mass of irrelevant and distracting "noise" that comprehensive collection invariably brings in. If good analysis is to form the basis for intelligent policy, moreover, information must be passed along to the policy community in order to inform their actions. This tension between security and sharing has been part of the fabric of intelligence policy for years, perhaps manifesting itself most clearly in U.S.-British debates during the Second World War over when (or whether) to share high-grade communications intelligence with operational commanders who needed such information in order to win the war against Nazi 32 Germany. [20] Today, similar debates continue as it becomes clear that the sort of sophisticated pattern-analysis and semi-or fully-automated "data-mining" capabilities that will be necessary for intelligence analysis to keep up with complex transnational threats such as those presented by Usama bin Laden's Al-Qa'ida organization are not compatible with traditional notions of inter-Intelligence Community secrecy and restrictions upon access based upon an outsider's "need to know" as determined by the agency information-holders themselves. A. The Intelligence Community's Failure to "Connect the Dots " Prior to 9/11 The most fundamental problem identified by the JIS is our Intelligence Community's inability to "connect the dots" available to it before September 11, 2001 about terrorists' interest in attacking symbolic American targets. Despite a climax of concern during the summer of 2001 about imminent attacks by Al-Qa'ida upon U.S. targets, the Intelligence Community (IC) failed to understand the various bits and pieces of information it possessed -about terrorists' interest in using aircraft as weapons, [21] about their efforts to train pilots at U.S. flight schools, [22] about the _______________ 20 See, e.g., F.W. Winterbotham, The Ultra Secret (New York: Harper & Row, 1974), at 86; John Winton, ULTRA At Sea (New York: Morrow & Co., 1988), at 148; Patrick Beesly, Very Special Intelligence; The Story of the Admiralty's Operational Intelligence Centre, 7939- 945 (London: Greenhill, 2000), 89, 98-100, 189-90, & 279; David Kohnen, "F-21 and F-211 : A Fresh Look into the 'Secret Room,"' in New Interpretations in Naval History; Selected Papers from the Fourteenth Naval History Symposium ed. Randy Carol Balano and Craig L. Symonds, (Annapolis, Md.,: Naval Institute Press, 2001), at 304 & 327-29. 21 For an account of information available to the Intelligence Community about terrorists' interest in using aircraft as weapons, see JIS, written statement presented to SSCI/HPSCI joint hearing (September 18, 2002), at 26-28. 22 For an account of information available about terrorists' interest in acquiring aviation training at U.S. flight schools, see JIS, written statement presented to SSCI/HPSCI joint hearing (September 24, 2002), at 3. 33 presence in the U.S. of Al-Qa'ida terrorists Khalid al-Mihdhar and Nawafal-Hazmi, and about Zacarias' Moussaoui's training at a U.S. flight school¬ as being in some fashion related to each other. As the JIS concluded, the IC failed to "connect[] these individual warning flags to each other, to the 'drumbeat' of threat reporting that had just occurred, or to the urgency of the 'war' efforts against Usama bin Laden." [23] Having failed to make that connection, the IC was caught flat- footed when the attack finally came. Accordingly, no effort to "fix" the problems highlighted by September 11 should be taken seriously unless it attempts to address the pervasive problems of information-sharing that afflict our Intelligence Community. (1) Terrorist Names One of the serious problems identified by our Joint Inquiry is the pervasive refusal of the CIA, in the months and years before September 11, to share information about suspected terrorists with the very U.S. Government officials whose responsibility it is to keep them out of the United States: the State Department consular officials who issue visas and the INS officials who man immigration posts at every American port of entry. As the JIS outlined in its testimony before one of our joint SSCVHPSCI hearings, the so-called TIPOFF system provides the basic "watchlist" function by which consular and INS _______________ 23 JIS, written statement presented to SSCI/HPSCI joint hearing (September 18,2002), at 10. 34 |