Defense and Security

Intelligence

  • Intelligence
    U.S. Intelligence: The Inside Story
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    Council on Foreign Relations New York, NYDANA PRIEST: Okay. I think we're going to start now, so if everyone could take their seats and turn off your cell phones and BlackBerries and other monitoring devices that you might have, because our guest is Jim Risen. This is on the record, and I'm going to introduce Jim and then talk with him for a little while and then turn it over to questions.Jim Risen is one of my competitors -- I'm with The Washington Post, he's with The New York Times -- and he's renowned among reporters as being never among reporters. (Chuckles.) Whenever there are news conferences or big events that reporters who cover national security -- Jim is always working in the background somewhere, which always bothers us, because we can't keep track of him. (Chuckles.) And so you can see the fruits of that in his book.He's currently the -- a national security correspondent with The New York Times. And he was a member of the team that won the Pulitzer in 2002 for the coverage of September 11th and terrorism. He's the author the book that we will be discussing tonight, "State of War: The Secret History of the CIA and the Bush Administration." But this is not his first book. He co-authored "Wrath of Angels" and "The Main Enemy: The Inside Story of the CIA's Final Showdown with the KGB."He began his intel career about 10 years ago, when at the LA Times, as an economic correspondent, he was getting awfully bored, looking for something else to do. And they said, "Well, you can cover intelligence sort of on the side and also the State Department on the side." And between the State Department and the CIA, the CIA won out -- (chuckles) -- no big surprise. And that's how he started his career at the LA Times and from there jumped to The New York Times after, I will note, The Washington Post tried to hire him first -- (chuckles) -- and that didn't work.So I wanted to begin, before we get into the substance of the book, just to talk with you a little bit about even why you decided to write a book, given how much you were writing for The New York Times. And why did you find a need to go deeper and do something in book form?JAMES RISEN: Well, you know, both of us were covering this stuff after 9/11 -- by the way, I just want you all to know what a fantastic competitor Dana is. And she scares the hell out of everybody at The New York Times with her stories.I just felt after 9/11 we were covering everything so fast, and there was so much happening; I felt like this was the first time in my career as a reporter when you really felt like you were really part of history in a very immediate sense that I'd never felt before as a reporter. And I felt that we were just skimming the service, as the whole news business, and I just had this constant feeling that I was drinking from a fire hydrant trying to write about this stuff.And after a couple of years of just running, as we all were, flat out, I just realized there was way -- there was so much happening that we didn't understand that I felt like I really had to step back and try and understand what was happening, especially after the war in Iraq. Iraq really, I think, changed the whole dynamic of how Washington is working, because there was a great -- not complete, but there was a lot of consensus in the government and in Washington in general, the political establishment, about Afghanistan and the about the early days of the war on terror, but I think Iraq broke that consensus eventually. And we began to hear from people in the intelligence community and throughout the Bush administration in 2003, 2004 and then last year this growing frustration and anger and dismay at what was happening in the government. And I felt like it was very hard to reflect in daily journalism. It was something that I felt I could try to do better in a book.PRIEST: So everyone expects a book -- and yours definitely fulfills this -- to go deeper and explain behind the scenes, behind the headlines. But trying to do that, especially in intelligence, can be very difficult, because superficial reporting is easier in a difficult situations. Did you find people more willing to talk to you because you were writing a book; things wouldn't come out right away, or --RISEN: Some, yeah. Yeah. Yeah, I mean, that was interesting, because I think there were people -- definitely people who were willing to talk about certain things that had happened a couple of years ago that didn't want to see them come out right away. And I'm sure that's happened with a lot of book authors. I've heard that from other authors, that that has been the case. And I know that was the case in some of these things that -- they felt -- there's a slight different kind of a relationship you develop with people when you're working on a book, because you can take more time developing a relationship, because it's not -- you don't have to turn it around fast.PRIEST: So if you were to talk about the motives, as best you can determine, of people who -- you know, obviously they're often talking to you about things they aren't supposed to talk to you about; it's probably illegal for them to talk to you about, in some cases. What are the range of motives that you found for sources who nonetheless want to help you out?RISEN: I could ask you exactly the same question.PRIEST: Well, I'm the presider, so -- (chuckles) -- RISEN: You know, it's the same thing that any reporter covering this stuff goes through, which is it varies from person to person. And a big part of the job that you have is to kind of vet your source, before you even go further with that person, to figure out what kind of person they are. First, you want to know, are they who they say they are? Did they really have the access, if they act like they had the access to the information? Are they credible, you know? And then the big question is, what is their motivation beyond, you know, are they credible?And I found -- it varied. In the case of the NSA story, I think it was a genuine belief that the Bush administration was doing something illegal and that they did not want to be a part of something that was potentially unconstitutional, and they felt that this was important for the people to know about. Other things -- other people I talked to were just -- were deeply angered by the way -- the conduct of the administration on the war in Iraq and the lack of planning; the whole issue of WMD; a whole range of motions. But on the NSA one, it was truly the clearest case of pure whistle-blowing I've ever seen in my career as a journalist. People who truly believed - and they were shocked by what they knew about.PRIEST: Do you think -- I find that a lot of people believe people who go to the media hate the administration. You know, they're Democrats or liberal Democrats, even. Is there anything that you can say about folks at the agency in terms of -- we know that the military tends to be more Republican.RISEN: Right.PRIEST: What about the CIA?RISEN: I think at the CIA -- as you know, the CIA -- this is a broad overgeneralization, simplification -- I think the CIA rank and file hated Bill Clinton with a passion. They thought he was feckless on foreign policy. They hated John Deutch even more than they hated Bill Clinton, and they kind of liked George Tenet because he got them more money and helped them around.I would categorize the average -- if you had to ask me what the average CIA person is, I would say they're a moderate Republican. They liked George Bush I, and they thought they were going to like George Bush II. And they kind of like the -- I think they see themselves in kind of the centrist foreign policy tradition of the Republican Party. And I think they've been deeply dismayed by the direction that foreign policy in this administration has taken and especially on Iraq, where the professionals were really not listening.PRIEST: So you brought up the NSA story, and there's obviously some lingering questions about putting together that story. And one of the obvious questions is, as the story pointed out, you had a lot of this information, although it insinuates you didn't have it all, a year before you published it. First, can you talk about -- does the Times have a process for considering national security concerns on the part of the administration that you can describe in a generic way? And then can you throw any more light on the year pause?RISEN: No, I can't. (Laughter.) I can just say that I think that the decision to publish it was a real public service and that all this other talk about what happened was inside baseball and that it really doesn't matter. And I think that, you know, it's a funny world today, with all the bloggers and the media critics, and everybody's got a take on the media. And the thing I've always thought is, you know, what would have happened if Woodward and Bernstein had 500 blogs on their case in 1972, you know, after they'd written five, 10 stories about Watergate, and you had -- what if Arianna Huffington and Matt Drudge were on their ass every day? PRIEST: (Laughs.)RISEN: They never would have gotten to the bottom of anything. And if you had Bill O'Reilly and -- I mean --PRIEST: Is it because they wouldn't be paying attention to the target and then be off paying attention -- RISEN: I believe it's paralyzing to pay attention to all that and that you've just got to ignore it and just keep going. And so that's what I'm trying to do.PRIEST: So on the question of a process, can you just take it away from your own story, and if there's any way to explain --RISEN: I don't know that there's any specific process. I just think, you know -- I just think that, you know, they had -- you know, that we handled this is in a way that was professional, and we ended up in the right place. So that's about all I can say.PRIEST: Okay. To talk about the book for a minute, I -- instead of going chapter by chapter or subject by subject, I found some of the most interesting things -- the personalities involved and the motives of those people.So could you summarize how you, after -- at the end of this process, saw George Bush and George Tenet? First Bush, his involvement with the issues that you lay out in the book -- you kind of reaffirm this idea that he's in a bubble, but --RISEN: Yeah, I don't -- I guess maybe that's -- that would be too strong. Maybe I didn't articulate it very well in the book. I guess what I would say is that I think Bush is not an idiot. He's not a fool. He's in charge. I think my view from talking to a lot of people is that he sets a grand vision, a strategic vision of where he wants the administration to go, and then he leaves it up to others to make tactical and -- decisions and implement things.And I think the difficulty and the problem that he's encountered with that is that he has given so much leeway to people like Rumsfeld and Cheney and others that, in the end, their tactical decisions have a major effect on the substance of the strategy. And the case in point, obviously, is Iraq, this lack of postwar planning.From everything I've -- people I talked to -- he made it very clear, when the Defense Department came to the White House and said we -- essentially, they wanted -- not in so many words, but it was clear that what they wanted was a turnkey operation with Ahmad Chalabi in charge of -- you know, they were going to fly in a new government, more or less. And Bush said no, we're not going to do that, we're not going to -- as one person said, the president repeatedly made it clear to Rumsfeld and others he wasn't going to put his thumb on the scales of Iraq.Now -- so he made it very clear he wanted democracy. But beyond that, he left -- I think he left far too much up to what he might consider the details, but I think the details ended up being the substance of the policy. You know, he had this working group at the -- this interagency group at the NSC and other State Department and other groups formulating ideas for -- and guidelines for postwar planning, and then allowed Rumsfeld to just ignore it.PRIEST: How much did you get involved with the issue of WMD and whether or not it existed? Is that something he relegated and just entrusted those --RISEN: I think -- yeah, I think on WMD he just -- I think -- well, I think it's more of a nuanced case here. I think that in the six months or so after 9/11 there was a fierce debate in the Bush administration over Iraq-al Qaeda ties, not about WMD. Wolfowitz and Feith and others at the Pentagon wanted to -- I think they saw the Saddam-9/11 or the Iraq-al Qaeda tie as the silver bullet that would trump everything else. And so they were pushing hard for that, and the CIA pushed back. It was the one issue I think they pushed back on. And so by late 2002 is when WMD came to the fore. And I don't think it was the central issue until the months right before the invasion. And I think it was hurried and the whole process was kind of botched. I don't blame Bush for that. I think -- and I don't think he lied about anything. I think -- and I don't think anybody lied. I believe they truly thought there was WMD there. I think that they assumed it.The problem was that the CIA allowed themselves to get captured by groupthink; that they said, "Okay, we assume there's WMD there, and so we're going to dismiss all of the indicators to the contrary as part of Saddam's denial and deception program."PRIEST: And you say that the CIA was captured by a war fever, that it just assumed it's going to happen, get on board. How do you get to that point if your mission is to, you know, be the truth teller?RISEN: That's a question that I don't know the answer to -- why this happened. I mean, I can kind of lay out the symptoms. And it's difficult to -- to me, it was like -- it's like workplace harassment. It's like sexual harassment or racial discrimination in the workplace. You know, it's always a he said/she said type thing. Political interference with intelligence is in the air, but how do you prove it? And I don't think you can prove it. To me, it is -- but the end result was a climate in which people knew what the right answers were, and I don't know how that exactly happened.I don't think anybody knows. I don't think the people in charge know how it happened. I think they would still deny that it happened, but it's clearly happened. And I think it was -- it's one of those great things that -- of interpersonal dynamics that's really hard to point to any one piece of evidence --PRIEST: Well, you do mention specifically that, you know, there's some -- there's a dismissal of dissidents, anybody who questioned.RISEN: Yeah.PRIEST: That dismissal comes from somewhere. Tenet? His deputy, perhaps?RISEN: Yeah, it's difficult to tell exactly. I mean, what I think happened was that no one -- I don't think anyone lied. I think everyone believed, in the leadership of the Bush administration, that there was WMD. What they did not -- what the dissidents were saying -- they were not saying there's no WMD. What they were saying was, the evidence is weak, and we don't have very good intelligence on this.PRIEST: But it's so weak. In the case you would -- like the Curveball case --RISEN: Right.PRIEST: -- in which they don't even bother to check the source --RISEN: Right.PRIEST: -- now how do you get to that point by then, when --RISEN: I think at that point it was so late in the process that the leadership said, you know, the train's already left the station. And I remember one source telling me that he got the distinct impression that the leadership was saying: They're going to war anyway. It doesn't matter. We'll find it when we get there. And I think that was the -- by this whole process of -- that's why I think the debate over the Iraq-al Qaeda ties plays into the way in which WMD was handled, because I think for the first six months or so after 9/11, as I said, when they were focused on Iraq-al Qaeda, and they had this big fight, then they switched to this thing where they thought there was greater agreement and consensus within the government on -- and that process, because they had just, I think, just been focused on other things, was compressed. And by that time -- by the time you focus on WMD in the summer and fall of 2002, you know, it's very clear the administration's already on their way to war. And I think that message was already clear at the CIA -- you know, "Hey, they're going to war anyway."PRIEST: So in what you're saying, you're rejecting those who say that there was a cabal that pushed falsified information, the whole Office of Special Plans that we read about in the Defense Department. RISEN: Right.PRIEST: And I assume that you looked for evidence of that and you just didn't --RISEN: Yeah. No, I think, as I say, that it's a more subtle argument. I think that there were people -- as I said, everyone more or less assumed that Saddam had WMD, but there were people who said we don't have very good intelligence on that. And those people were not listened to, and they were shunted to the side.PRIEST: Talk about Charlie Allen's efforts for a minute and describe, if you would, who he is.RISEN: Yeah, there was a -- I think Charlie Allen is this guy who was in charge of kind of an arcane office that -- his main job was really to look for gaps in intelligence collection, things around the world that the CIA or the whole intelligence community was not doing a particularly good job on. And one of the things that I was told he looked at was Iraq WMD. And he came -- they came up with this idea of sending relatives of Iraqi weapons scientists back to Iraq, people who were in the West, to actually ask their relatives, you know, "What are you doing now? Are you still working on WMD?"And one of the people involved in this program was a doctor from Cleveland, a woman Iraqi exile. And she went back and met with her brother, who had been in the nuclear program. And he told -- and she went back to Baghdad in September of 2002. And her brother -- you know, the CIA sent her, and she asked all these questions about the nuclear program. And her brother looked at her incredulously and said, you know, "Don't you know? There is no WMD. There is no nuclear program."And she came back to Washington to meet with the CIA and told them, you know, "He says there is no nuclear program." And they had other relatives who did the same thing. And this intelligence - they filed these reports, and they didn't go anywhere, because the CIA, I think, believed that this was all part of the denial and deception program of Saddam. And I think that was the way in which, as I said, contrary evidence was seen as Saddam's -- this brilliant plan by Saddam to fool us. And anybody who came up with something that said there is WMD, that information went right to the top very rapidly.And so that was the -- I think that's the subtle thing that is lost in the partisan debate over this, where they say Bush lied or Bush -- or whatever, is -- that's just a red herring. I think it's a much more complex thing, where it was this climate that was created where people began to just kind of ignore -- I think what they lost really was the intellectual discipline on how to conduct intelligence analysis.PRIEST: So one more question, and then we'll open it to everybody else. The last chapter is called, "The Rogue Operation" and deals with Iran and starts out with this startling revelation that I've never seen anywhere else: that they made a mistake and ended up rolling up or getting rolled up a number of their contacts in Iran. So my question is, since Iran is so center, seemingly, to what they might be looking at now, can you judge now how damaging that mistake was to the sources that they have in Iran still today or don't have anymore?RISEN: Well, I know the CIA has disputed the level of damage from that mistake. They don't dispute that the mistake happened. Since my book came out, they've disputed how much damage it did. I think what it shows is that they admit that that mistake was made and that it was enormous. I think they -- from everything I've been told, they have very little insight into the Iranian nuclear program. And they really, I think, as your paper reported some months ago, that -- it was a related story -- I think it was Dafna Linzer -- about how the NIE -- about saying it was another 10 years. I think if you say that they could have a nuclear program sometime in the next 10 years, that means we don't really have a clue.And I think that's essentially where they are. They are -- and I think it's a real problem now, given this track record on Iraq. How do you present credibly to the world any argument based on intelligence again about WMD in another country that starts with the letter I? (Soft laughter.)PRIEST: (Chuckles.) All right. Countries that start with I.Now this -- consider this the appetizer for the State of the Union, because -- (laughter) -- the book has every large issue that Bush is going to talk about today.Okay. Let's start up here.QUESTIONER: Yeah -- (name and affiliation off mike). For those of us who haven't read it, can you tell us what are -- what you think are the key points of your book?RISEN: Well, I think the theme that I -- I mean, one of the problems writing a book like this is that it is -- when you get so close to the information, how do you develop a theme? And the thing that I think is the theme of it is -- I think after 9/11 you had a problem where there was a lack of checks and balances on the way in which foreign policy and national security was developed. You had, I think, over the 30 or 40 years -- really, since World War II, you'd had -- the American foreign policy was always kind of pushed towards the center by the bureaucracy, by career professionals, the interagency process, just by lobbyists, by the American interests around the world.Whenever there was a big issue, it would get chewed over and studied and reviewed. And eventually, we'd kind of be -- you know, even whether it was Republican or Democrat, over time, you know, we would kind of be somewhere in this range that was more or less moderate on how we dealt with foreign policy. I mean, there were obviously exceptions.But I think after 9/11 -- one of the things someone told me which really struck me was that what happened was, the principals were meeting every day. And normally on an issue, a big issue, the principals, meaning the Cabinet level type officials, would only meet maybe once every six months on an issue. And during the interim period, there had been this enormous interagency process where everybody would chew over things and fight over things. And the end result would always be that policies would be kind of pushed back toward the center. But when you had Rumsfeld and Rice and all these people meeting every morning or every day for however long that frantic period was going on, I think that had a major effect on the way in which policy happened. And the bureaucracy, the career experts, couldn't catch up. So I think between 9/11 and the beginning -- and the invasion of Iraq, policy was on the fly, and it was being made verbally, basically, within small groups. And the professionals didn't really know what was going on. And I think that led to a veering off in different directions of policy that were -- some people believe were radical.PRIEST: Over here.QUESTIONER: Thank you. One comment. I was at a conference in the U.K. about a year ago, and Brits and Americans were asking how we both blew it on the question of WMD. And your thesis would be very much what the Brits think. There was tremendous pressure from Number 10 to come up with what they wanted to hear, just as there was from the White House.RISEN: Right.QUESTIONER: My question is, did you see the roots of our current approach toward torture and interrogation? And where did that come from?RISEN: Well, I think -- I mean, the issue is -- goes back, I think -- something that I really struggled with is -- and I couldn't get a satisfactory answer -- you know, it's something that Dana has written extensively about, probably better than anybody in Washington. The issue of how did the -- you start in early -- late 2001, early 2002 with a decision by the president and by people around him to let the CIA take the lead on capturing and interrogating al Qaeda prisoners and to keep them secretly overseas, away from the U.S. judicial process.And I think somehow that we ended up with Abu Ghraib, with National Guardsmen from Western Maryland. And how that migrated from one place to the other is the story that we are still struggling with, I think. But I think it was clearly a continuum that we are still trying to fill in the blank with, don't you think? I mean --PRIEST: Yeah, and I also think there was a decision that we're at war, and war powers give you -- as you've seen in that torture memo, the August 1, 2002, memo -- the commander in chief can disregard things. And that's what his lawyers were saying, and that's what they wanted to do anyway. RISEN: Yeah.PRIEST: That really freed their hands. And they, unlike -- they pushed the authority down into the field, where field people who had no real experience as interrogators, because the agency hadn't done that for so many years -- RISEN: Right. Right.PRIEST: -- were now being -- I think you're right -- on verbal -- a lot of times on verbal okay --RISEN: Right.PRIEST: -- being faced with grave situations and knowing that they'd be covered if they pushed it to an extreme.RISEN: The question I think none of us -- we're all struggling with is, how did you get from a CIA operation to something that the military is involved with, for the first time in modern history, where they're ignoring the Geneva Convention?PRIEST: Yeah.RISEN: And that is the leap that -- you know, we've kind of reported -- everybody in Washington has kind of reported both of those things, but we don't have that leap right there, you know.PRIEST: Up here, in the very beginning -- QUESTIONER: I'm Pete Peterson. Some of us who are not experts find this NSA situation a bit of a puzzlement. We hear the experts come to the council and explain that the existing laws have immense latitude and flexibility; you can get clearance for almost anything, you can even do it retrospectively and so forth. And yet the administration takes the position of really not using the existing legislation.What do you think are the real reasons for their point of view? I could give you at least two options. One, this is just a raw continuation of a presidential power grab, just generically. Or are there limitations in the existing legislation that do make the implementation of that law difficult in practice? I'm really confused about what the explanation is. And if so, what are those problems?RISEN: That's an excellent question that we have struggled with ourselves. And I think it's a mix. I think it's both, frankly. I think that there are -- I think FISA was created -- the Foreign Intelligence Surveillance Act was -- 1978 -- was created in an era in which the telecommunications industry was completely different than it is today. Today it's far more globalized and much more complex, and I don't pretend to understand it fully. I mean, that's about the level of my knowledge. I know that it's more complicated today than it used to be.And so I think there was -- for a long time, my impression is, there was a long -- for a long time, NSA has wanted new powers, way before 9/11, wanted new -- they were frustrated with the limitations that FISA put, given the changing nature of the global telecommunications network. I think that was one thing.The other thing was, as you said, a belief in the administration -- as you said, the lawyers had this belief of broad presidential power. And the third factor, I think, is the immense technical capabilities of the NSA go way beyond anything that most people understand. And I'm just starting to understand it. They have - I think it's still -- probably still true they have more computing power at Fort Meade than anywhere else in the world. And they have the ability to do almost -- you know, to manipulate the data and the information in a lot of very interesting ways.And my belief is that one thing -- one reason they did not go to Congress and one reason they did not ask the courts for approval on this is that the program is very large and is doing a lot of very voluminous things, which we've talked about in the paper and in my book some.PRIEST: I thought I found a clue to that question in the book when you talked about NSA having a checklist of suspects, I guess, and that people that were on that list were considered -- that alone amounted to enough of probable cause to go after them -- RISEN: Right.PRIEST: -- even though that checklist was not vetted by anyone else, right?RISEN: Yeah. That's one -- that's -- I think the problem that people came to me about -- one of the things that led people to come to me was this idea that they couldn't believe that the administration was letting NSA officials decide probable cause. And so that was one of the real -- that's where it gets back to this issue of - I think it was more -- as much presidential power and prerogative as anything else.PRIEST: Okay, how about in the back, in the orange scarf? Or orange -- yeah, okay. (Chuckles.) Can't really --QUESTIONER: Hi, Dana. Wendy Luers, Foundation for Civil Society.Going from the connection between CIA and military, in your articles on rendition and the CIA planes going around, there has been a lot of talk in the Balkans about using Camp Bondsteel in Kosovo as one of the places where they were landing. Can either one of you verify that at all, and talk further about the utilization of not only foreign airports, but our military bases abroad?PRIEST: Well, in the lists of -- there are now lists, a combination of Euro-control lists, plane-spotter lists. We have tail numbers now. You know, the CIA didn't do a great job. Their cover staff, you know, should all be fired from that tradecraft. (Laughter.) Really, once you got onto this, it wasn't that hard to find the rest of the planes.So now you have all of Europe trying to look for the planes, and as a result we have a lot of information. There was not -- I haven't seen Kosovo. But there are military airports, and I think some of the records aren't true, you know, that some of them are falsified in some way, and it's hard to -- it would be hard to really figure out which ones are.As for the military airports, yes, they use military airports quite a bit. However, I think as this controversy has bubbled up, less and less. And I know for instance they've changed their -- the black sites, those secret prisons. Now they have a rule: no black sites near soldiers. And that started actually when they got -- they had a little black site that was on Guantanamo and was discovered, and they left Guantanamo. And I think the military really doesn't have anything to do with this because they've got their own problems. So no black sites near soldiers. Yes use of military airfields still, but I would guess less so now.And there's no firm evidence that I've seen that Kosovo was used. Kosovo has its -- Bondsteel has its own military prisons in which the military rules, and I think a lot of reporters in Europe sort of mix the two up. But I wouldn't close the door totally.RISEN: The one thing I would add about the prison, CIA prison, issue is that I think it's one of the things that has angered and frustrated career CIA people more than anything else. Because I kept hearing repeatedly -- I'm sure you've heard this a million times -- people said, you know, I don't recognize the agency I joined.PRIEST: Yeah. In fact, the feeling that the CIA has lost its espionage role and taken on a large paramilitary role, in part because, you know, Tenet got kudos from Bush on that. You could cross people off on the cards that Bush would keep on the high-value detainees. You could show progress. But it's a different agency.Let me go one more time back in the back, way back here. Yeah. Yes.QUESTIONER: I want to go back to the L word, to the lying question. And I want to try to ask this in a nuancy way, and I'm really sort of asking your -- your view of this as you wrote the book, and your view of this as how the media handles the question.I don't think -- I'll say it personally -- I personally never thought that what you pose as the red herring -- as the lie ever was a lie -- it never occurred to me that people in the administration said let's make up a story and then let's carry that through. It seemed to me the issue that it's a -- that you seem somewhat dismissive of, was -- occurred as the issue shifted from whether there were connections to the -- as they shifted from that -- and by the way, my view of that is, the agency simply got exhausted, and that was -- they fought one fight and sort of won it, and then they said they weren't going to win another one. But as the issue shifted to the WMD question, what we know throughout that entire period was that there were deep, deep disputes within the intelligence community about what was real, what was not real, what was truth, what was not truth.We also know that throughout certainly the latter half of that year -- and I'm talking about 2002 -- every senior member of the national security team of the Bush administration used the nuclear cloud analogy. And that in itself strikes me as pretty damn close to a mistruth. But it also seems to me that with respect to the nuclear issue, a president is given such automatic belief -- after all, who -- I mean, we can quarrel with what our president says about taxes tonight, but you can't -- but who absolutely knows, except someone who has a -- that therefore, that whether or not the story got made up, there was certainly a -- it's fair to say there was a considerable mistruth implied about degree of certainty on the second half of that year. And I'm curious about what you thought about it at the time.RISEN: Well, I agree -- I mean I think -- I guess what I would say is you see all the symptoms of what you're saying, but you don't see the cause. You can't prove -- you can't prove -- you see the systems of the politicization deep in the bowels of the CIA when you talk to people, but what you don't see, and what I cannot find, is where that started.And I think, as I said, it's like workplace harassment. I mean, where does that come from? It's in the air. It's a group dynamic that I don't think you can blame on any one person. And that's really -- I struggled with that, and I still struggle with it. And maybe you had something.PRIEST: But are you also asking -- so that's a big generalization -- I mean an exaggeration -- of what, if you knew what they knew, you could say. So it's an exaggeration, and you had a media question in there somewhere, right? Like did the media --QUESTIONER: (Off mike.)PRIEST: Yeah.QUESTIONER: When the most senior members of the national security apparatus of an administration use the nuclear cloud analogy --RISEN: But I think they believed it. This is what I'm getting to.QUESTIONER: It would have been a different thing -- I don't mean to monopolize -- it would have been a different thing if someone had said, you know, there are 10 issues about weapons of mass destruction that are currently under dispute. We the administration don't know the truth one way or another, but we believe the nuclear cloud analogy. That would be one thing to say to the American people. But to say it without a single qualification for months strikes me as a different kind of question. And you all knew that there were disputes going on at the time. Anybody who had any connection with the intelligence community knew that there were disputes --PRIEST: So do you have a question in that one? And would you write it? (Laughs.)QUESTIONER: It didn't strike me that the media did a terribly good job during the period of planning.RISEN: The basic point, just to reiterate, I think, is that I really don't believe that they went out publicly and lied. I mean, they may have -- they certainly had political talking points in which they shortened things and overemphasized things.I still believe -- because it got down to this -- I mean, the reason I say this is because the people I talked to were deep down in the organization. There's no way the president was talking to these people, and they weren't hearing from George Tenet. They were talking to their own people. And so I just think that there was a groupthink that captured the whole government that is a phenomenon that's very difficult to understand.PRIEST: But you're also asking, did it capture the media? And when I -- and having been a reporter trying to work on that, we wrote at the Post -- and the Times did, too -- we wrote a lot of stories about dissent, but -- and many of them, you know, I think, were underplayed in our pages. And we've done a lot of internal -- you know, we had a lot of internal arguments about that. But they were in -- they were in the paper. But you're faced with as reporters not being able to do what you haven't been able to do, which is finding a smoking gun after all these months. So then you're still weighing judgment. And the stories that say, Bush says this and he's exaggerating, but there's some dissent, they're almost not -- they don't weigh as much in one sense as the president and the Cabinet coming out and making these dramatic statements because we can't -- we're not -- we're can't be firm about it, we can't be clear.RISEN: I think what happened in the media reflected what was going on inside the intelligence community, that the people that -- the dissidents knew that there was something, that the evidence wasn't very strong. How do you prove a negative? You know, I wrote some of those stories about people skeptical of intelligence -- you know, Walter and I and others -- you and other people.PRIEST: Right.RISEN: But how do you prove -- how do you prove a negative? That's the question. And so the -- it was really a matter within the -- I think it was within the CIA -- that if you had curveball or you had somebody else, you've got something specific that you can take to the afternoon meeting. But if all you do is you come to the meeting and say I don't believe what this guy's telling you or I have problems with that intelligence, they'll say, okay, what do you have? And I think that's what happened.PRIEST: Yeah.QUESTIONER: Hi, I'm Richard Solomon of Public Perspectives at Columbia University.I wanted to bring you a little more up to today if I could. Because clearly, as I read your book over the last weekend, it's a pretty unremittingly negative view of what happened in the last few years, probably justifiably so. But as you talk to sources today, do they see we really learned a lot; that the organizations are different, the players are new, we learn from our mistakes and therefore we're in a better position than we were? Or where -- where we now are; do people still -- are they still afraid to tell the truth upward? So would you talk a little bit about where you think our intelligence efforts are today relative to two to four years ago?RISEN: Someone who was recently in Iraq for the CIA told me that they are not allowed to go outside the Green Zone because they are afraid of getting kidnapped, and that to me says everything you need to know about the CIA in Iraq. Maybe you've heard differently, but --PRIEST: Well, you know, what about --RISEN: I think that -- well, my point is --PRIEST: What about Iran? What about Porter Goss' leadership?RISEN: Porter Goss is no longer the leader of the intelligence community. And I think that's what you -- we had maybe the worst combination of things happen in the fall of 2004, where you had -- I mean, I'll say something politically incorrect here -- which was you had a group of widows from 9/11 take control of the legislative effort to reform the intelligence community. And they were fooled, I think, by the Republican leadership into thinking that adding another layer of bureaucracy was going to solve the problem. And the idea that the DNI is any better than the DCI I think is a joke.PRIEST: Well, what about the CIA that has to analyze -- you know, take a RAND for the moment. Do you think that they've put -- either that they don't have groupthink as a result of this experience, or they've put things in place that will guard against another Iraq experience?RISEN: It's possible that they've done that recently. I don't see any evidence of it. I don't -- but I don't know. I mean, maybe in the last few months, maybe they -- maybe they'll surprise me. But I don't see any evidence. I think they are more cautious. I mean, I think the -- their reporting on Iran, I've been told, is more cautious than it was on Iraq. But that doesn't seem to change the political debate within the Bush administration. I think basically the CIA's standing within the government is at a low, maybe an all-time low, because their credibility is shot.PRIEST: Can you say -- is there anything positive to come out of Negroponte's position and appointment? Is he going to do anything that needed to be done?RISEN: He was a --PRIEST: Stand up to Rumsfeld, for example?RISEN: Well, that's the question. I don't think we've seen that yet. I think if I was Negroponte, what I would want is a very public confrontation with Donald Rumsfeld, and he hasn't done that yet. And I think until he has a public fight with Rumsfeld, we won't know where -- what the standing of the DNI is going to be.PRIEST: Yes.QUESTIONER: Roland Paul, I'm a lawyer.Maybe we could put this in -- I'd welcome your perspective about WMD, if I may kind of give a little bit of the -- in one place you slid between chemical and biological weapons on the one hand and nuclear on the other. I don't think that the administration has ever said -- but maybe Cheney making one slight slip -- that they had nuclear weapons. They never said that. They said they had chemical and biological. And so the -- and what we now --RISEN: Before the war in Iraq?QUESTIONER: What's that?RISEN: You mean before the war in Iraq?QUESTIONER: Yes, yes.RISEN: They said they had -- they said they had all of them.PRIEST: They were reconstituting their nuclear program.RISEN: Yeah.QUESTIONER: They didn't say they had nuclear weapons.RISEN: Oh, no, they said they were reconstituting.QUESTIONER: Yeah, that's what I mean. And what we know about their nuclear program now wasn't that far from what they were saying. In other words, we know they had lowly enriched uranium. We know that they had buried -- you know, Mahdi Obeidi had buried everything he needed to reconstitute it. He wrote in your paper that with the snap of Saddam's fingers we could have a nuclear program. And on the chemical and biological they were wrong, but there is a lot of evidence that he could quickly reconstitute it. And some authorities -- one is Hans Blix -- and the other thing in that regard was -- well, actually your colleague, Bob Woodward, in his book -- if you read on page 422 of Woodward's book, the president -- he says, well, what about WMD? And the president says, well, he could have reconstituted them quickly. And I remember David Kay -- I'll be done -- David Kay, in his testimony before the Armed Services Committee, said that Saddam and his two sons went three times to their scientists and said, how quickly can we reconstitute them? And they said quick.RISEN: I don't think there is any question that if the sanctions had been lifted, if the world had decided to ignore Iraq for a few years, he would have redeveloped nuclear -- WMD of some kind. That's clear. I think -- I don't think there is any doubt that he was waiting for the sanctions to be lifted. The question, although, of course is, did he have the resources to really do that if the time came.QUESTIONER: Hi, I'm Ted Sorensen. This has been terrific.I want to ask about the source that is the most important to me, which happens to be The New York Times. I am an admirer, and of you also, Mr. Risen. But a long time ago when I was in government, the Times, as you might imagine, came to me and said that their role required them to know all the truth and facts about the government.Now I'm on the other side as a reader, and I'd like to be sure that that is still the role of The New York Times. (Laughter.) And I would like to know whether you or the Times is either used by either the CIA or the White House, the State Department or others, or if the chain of intelligence ever gets a little mixed, and sometimes the Times is the source for the general atmosphere inside the CIA or the department instead of the other way around?RISEN: I think every reporter I've ever known gets used every single day. We all get used by our sources. That's what the business is. We get used, and we try to figure out how we're getting used, and whether we can turn it around and take advantage of that. I mean, that's the process. People use us and we try to use them, and it happens to every single reporter.PRIEST: How about standing up in the back over there?QUESTIONER: I still don't understand -- (off mike, comes on mike) -- I still don't understand why you held the story at The New York Times for a year. We all sit around and discuss it. And can't you shed a little more light than you did shed on that?RISEN: No. (Laughter.)PRIEST: Well, can I try this? You've been accused of holding it for political reasons, that it was too close to the election. Can you just take that off the table?RISEN: I can just say that I think it was the right decision to publish it when we did.x x x Yes?QUESTIONER: I'm David Vidal. I used to be a reporter; I'm now with the Commerce Department. I have a question that relates to, I guess, reporting ethos. I've been in meetings here for the past several weeks, and I've heard things like fear among Democrats, fear in the country. You talk about war fever and an environment and groupthink, as if all of these are individuals and basically parts of our government; but none of them are people. Are you telling us or would you have us believe that you are actually reporting that some of these momentous effects that have affected our lives have no causes, that there is no accountability, and that all we can trace for this is fevers and environments and groupthinks?RISEN: No, all I can say is that I don't know the full answer. I mean, I'm sure there is an answer. I mean I don't know, it may take 20 years for all of us to figure it all out. All I can say is that what I've been able to determine so far are the symptoms. And knowing human nature, I think it's unlikely that you can ever trace it to one source. I don't think there is a smoking gun. I don't think there was a meeting where Dick Cheney and George Bush said, well, let's make the CIA lie to us, or let's tell a bunch of lies. I just don't think that happened. I think there was a series of incremental actions and decisions throughout the government that led to what happened.And I think the overarching decision was that President Bush wanted to invade Iraq, and everything flowed from that. But beyond saying that, I can't prove anything beyond that.PRIEST: Let's try again in the back.QUESTIONER: Chris Isham with ABC. There's been quite a bit of confusion about exactly what the NSA program did or did not do. I wonder if you could just clarify what your understanding is at this moment, both from your reporting in the book and subsequently, what the president authorized, and what the program did?RISEN: Well, we're still trying to report further on that. I think the -- my understanding is, and what we've written so far, is that there was a decision by the president to allow the NSA to get back-door access to a series of major telecommunication switches into the U.S. telecommunications network, essentially getting right into the bloodstream of the telecommunications and e-mail in and out of the United States, and that those switches were kind of the gateways in and out of the U.S. for a lot of traffic; and that they were doing this without search warrants; and that this allowed them to both eavesdrop on individuals without search warrants and to conduct broad data-mining operations within e-mail and telephone and cell phone conversations in and out of the country .And one of the questions we still haven't answered is what kind of abuses they were of this program. I mean, that's something that everybody has been speculating about, but we don't have any strong answers on.QUESTIONER: What do you mean by data mining?RISEN: Well, that's one thing we're still trying to understand fully. What we believe was that there was something called pattern analysis, where they are able to look at the frequency of calls from one number to another, the time of day of calls, the duration of calls between different numbers, and to use that kind of information -- and for e-mail traffic as well, and to use that information to develop analysis of likely relationships between people.QUESTIONER: All of it overseas to the U.S.RISEN: Yes.PRIEST: But do you think once they got access to the switches, they're not looking at everything they have access to, right? They have certain things they're going to.RISEN: That's what they say. That's what they say, and that's what -- the problem is, there is no oversight of the program.PRIEST: Okay, jump in, third time, red shirt.QUESTIONER: Jim Dingeman from -- (inaudible) -- World Report. I'd just like to ask you what your opinion is of the whole impact of this unitary executive branch theory that we've seen bandied about with Judge Sam Alito, which in particular has been deployed in regard to the revelations of you and your colleagues in December about NSA surveillance. And what do you think it raises in terms of the questions of freedom of the press and the ability of the press to inquire into these issues without having the Damocles Sword of the executive branch on their heads?RISEN: (Laughs.) Well, you could answer that as well as -- PRIEST: No, you're -- (laughs).RISEN: I mean, that's the problem we face covering national security, is you've got one party running the government, and so there's -- you can have an expansive view of presidential power when your party controls Congress and most of the courts.PRIEST: I also think that -- I think Bush revealed a lot when he started to defend the NSA program. He revealed a lot about their legal thinking. And it's not only his commander-in-chief powers at a time of war, but it's also that Congress did pass a war resolution which, despite the Democrats' claim, does not use the word "Afghanistan." It says everybody responsible for 9/11. And if you follow that trail, that gets you to al Qaeda worldwide. So it's much broader than they're willing to say now. So he believes, and his government lawyers have gone forward and -- I'll give you another example, ban on assassinations. If you are in a self-defense mode and you have a list of terrorists that you know want to commit war against the United States, that's no longer assassination; it's targeted killings that are permitted under this idea.And it goes through a whole lot of other things. So a lot of them we have not been able to report on, but there's a whole slew of things that they are able to do in the special operations world, in the clandestine service, in NSA, probably in the NRO. And they all rest on a state of war and then bolstered by the congressional war powers resolution.I kind of wonder why, if this is so controversial in Congress now, someone doesn't try to say, "Well, that's not what we meant," but try to say that in some actual -- you know, with some legislative language or sense of the Congress or whatever. But they are not trying to do that. So I think Congress sort of wants to have it both ways too.RISEN: I think one of the other issues is something you hinted at, which is that in a war on terrorism, the Pentagon and the Bush administration have argued that the entire world is a battlefield; that the global war on terror, GWOT, means that everywhere is a battlefield.And if you carry that to a legal construct, then that means that any place in the world is open to U.S. military action, and that would mean also U.S. intelligence action. And so that changes the whole dynamic. If you think -- and I think that's where Rumsfeld has gotten this enormous running room, that you can -- that the Pentagon can operate anywhere in the world and declare that this is part of the preparation of the battlefield for future combat operations.PRIEST: Including the United States, where you see this growth in domestic military activity.Okay, we have time for one more question, and then I'm sure Jim will stay around and answer more. QUESTIONER: Yes, I'm Dick Garwin. And I would welcome a little less passive voice here. That is, the CIA let itself be captured by groupthink. And Dana Priest said, well, we haven't found a smoking gun. But that doesn't mean there isn't a smoking gun, and you say maybe 20 years more. So let's try to parse that a little bit. Suppose we didn't have, hadn't had Douglas Feith's Office of Special Plans and Cheney. Would the capture by groupthink have happened, do you think?RISEN: Yes, I think -- well, it's an interesting question. As I said, I think the effect of the -- basically what the Pentagon -- the neocon fight against the CIA was not about WMD. It was about the Iraq-al-Qaeda link or the 9/11-Saddam link. It was about Prague. It was about, you know, the stuff that the Weekly Standard keeps beating a dead horse with.And I think the effect of that was not so much on that as an issue within the government. The effect, I think, was to compress the WMD argument into a few months at the end of 2002, and so that you had less time. It kind of sucked the oxygen out of the time you could have had to argue WMD, so that by the time you began to really argue WMD, by the fall of 2002, the troops were already flowing to Iraq -- I mean to Kuwait, and the train was already leaving the station.And so there was the sense within the CIA that, man, this argument is really late; you know, look at all those brigades flowing to Kuwait. We already had this argument. We already argued over Iraq-al-Qaeda; now can we really argue over this? So I think that was the effect of the Office of Special Plans, was kind of this unintended consequence, which I think is pretty interesting.PRIEST: Okay. Thank you all for coming. And thank you. (Applause.) (C) COPYRIGHT 2006, FEDERAL NEWS SERVICE, INC., 1000 VERMONT AVE.NW; 5TH FLOOR; WASHINGTON, DC - 20005, USA. ALL RIGHTS RESERVED. ANY REPRODUCTION, REDISTRIBUTION OR RETRANSMISSION IS EXPRESSLY PROHIBITED.UNAUTHORIZED REPRODUCTION, REDISTRIBUTION OR RETRANSMISSION CONSTITUTES A MISAPPROPRIATION UNDER APPLICABLE UNFAIR COMPETITION LAW, AND FEDERAL NEWS SERVICE, INC. RESERVES THE RIGHT TO PURSUE ALL REMEDIES AVAILABLE TO IT IN RESPECT TO SUCH MISAPPROPRIATION.FEDERAL NEWS SERVICE, INC. IS A PRIVATE FIRM AND IS NOT AFFILIATED WITH THE FEDERAL GOVERNMENT. NO COPYRIGHT IS CLAIMED AS TO ANY PART OF THE ORIGINAL WORK PREPARED BY A UNITED STATES GOVERNMENT OFFICER OR EMPLOYEE AS PART OF THAT PERSON'S OFFICIAL DUTIES.FOR INFORMATION ON SUBSCRIBING TO FNS, PLEASE CALL JACK GRAEME AT 202-347-1400.THIS IS A RUSH TRANSCRIPT.
  • Intelligence
    INTELLIGENCE: Negroponte’s Challenges
    This publication is now archived. What are the main challenges facing new Director of National Intelligence John Negroponte?He must manage the sprawling U.S. intelligence bureaucracy, oversee the nation’s counterterrorism strategy, replace the CIA director as the president’s primary adviser on intelligence, and--with the Secretary of Homeland Defense and the head of the FBI--take responsibility for preventing another large-scale terror attack on U.S. soil. At the same time, he has to work with the president and Congress to better define the scope of his authority, which critics say was inadequately spelled out in the reform legislation that created the director of national intelligence (DNI) post.President Bush named Negroponte DNI on February 17. Negroponte, 65, has served as U.S. ambassador to Iraq since June 2004, experience the president called an "incalculable advantage for an intelligence chief." He was U.S. ambassador to the United Nations from 2001 to 2004, and also served as ambassador to Honduras (1981-85), Mexico (1989-93), the Philippines (1993-96), and as deputy national security adviser (1987-89).The legislation that created the DNI job implemented many of the recommendations of the 9/11 Commission charged with investigating the 2001 terror attacks on New York and Washington. The DNI will, according to the White House, "conduct strategic operational planning for counterterrorism activities, integrating all instruments of national power, including diplomatic, financial, military, intelligence, homeland security, and law enforcement activities within and among agencies." He will also control the budgets of the nation’s 15 intelligence agencies, reportedly about $40 billion, and coordinate operations and assign roles in them to the CIA, FBI, or Pentagon. Those agencies can raise objections to the assignments with the National Security Council.The final report of the Presidential Commission on the Intelligence Capabilities of the United States Regarding Weapons of Mass Destruction, released March 31, outlines the challenges Negroponte will face in his new position. Because of ambiguities in the legislation creating the post, the full extent of the DNI’s responsibilities and powers is unclear, the report says. As a result, the DNI will need the president’s strong backing to help him build consensus for reforms and bring the intelligence community into line. "The DNI cannot make this work unless he takes his legal authorities over budget, programs, personnel, and priorities to the limit," the report says. The commission, headed by former Virginia Governor and U.S. Senator Charles S. Robb and Laurence H. Silberman, a federal appeals judge, also recommends that the DNI focus on managing and setting long-term goals for the intelligence community, not on preparing and delivering the daily intelligence briefing to the president--a process that takes many hours and limits work on other tasks.Some lawmakers say the ambiguities in the DNI’s job description may actually help the DNI do his work. "I think the fact that all of the lines aren’t crossed and every decision isn’t made about what powers the DNI has is an advantage for the DNI, because a vacuum invites power," Senator Jay Rockefeller of West Virginia, the ranking Democrat on the Senate Select Intelligence Committee, said just prior to Bush’s introduction of Negroponte. "I think it is much more important that the DNI be able to come in? [and] fill that out according to his own instincts," he said.
  • Intelligence
    Betts: Negroponte Must Assert Leadership as Intelligence Czar Over Pentagon Agencies
    Richard K. Betts, the Council’s top expert on intelligence, says the newly named director of national intelligence (DNI), John D. Negroponte, will inherit an espionage bureaucracy that has been “demoralized” by a series of investigations. The latest probe of intelligence missteps, the Robb-Silberman report released March 31, sharply criticized spy agencies for claiming Iraq had weapons of mass destruction (WMD).Negroponte, Betts says, must assert his willingness to take charge of competing intelligence agencies to demonstrate that reform legislation enacted in December 2004 will be effective. “It’s still not clear that the new DNI is going to be able to call the tune when issues come up that involve the Defense Department” and other agencies, says Betts, the Arnold A. Saltzman Professor of War and Peace Studies.Betts, an adjunct senior fellow at the Council on Foreign Relations, was interviewed by Bernard Gwertzman, consulting editor for cfr.org, on April 4, 2005.What is the state of mind in the intelligence community these days, in the wake of the Robb-Silberman report and the 9/11 Commission report?It’s shaken and still being shaken up. It’s demoralized and its reputation is down because of this one-two- actually three- punch of outside reviews. There is also the Duelfer report [on the search for WMD] by the Iraq Survey Group, and it’s universally assumed on the outside, in the public and among the political leadership, that the failures which these reports reveal were egregious and demonstrate fundamental flaws in the community. So, they’re on the ropes at the same time the new legislation aimed at fixing some of this is still coming into focus. How the prevalent assumption that radical change has to occur pans out with this new legislation is the big unknown.If you were a Negroponte adviser, would you have told him not to take the job?No. The big question is whether he winds up with significantly more power than the old director of central intelligence [DCI]. What a lot of people don’t appreciate is that, fundamentally, the new legislation creates in the DNI what the old DCI was supposed to do in theory but often could not do because his authority didn’t match his responsibility.And it’s still not clear that the new DNI is going to be able to call the tune when issues come up that involve the Defense Department especially, but also a number of other agencies, the FBI [Federal Bureau of Investigation] or others, over matters that conflict with what he wants to do. There will probably have to be some test cases in the shake-down period in the coming years. It’s in Negroponte’s interest, if he wants to really implement the vision of the legislation rather than subvert it, to have a showdown on this question and to demonstrate that he, in fact, is going to be able to give more orders to elements within the Defense Department and make more decisions that affect the programs of agencies outside the CIA than the old DCI could do.The director of central intelligence was supposed to be in charge of all U.S. intelligence agencies, correct?Yes, although how much authority he was to have apart from the authority of the heads of the departments and agencies in which many of those intelligence units existed has always been unclear. The DCI’s authority changed over time, but it was always limited.And he did not have the authority to pick the heads of those agencies?No, he did not, although, in practice, consultation and having the ear of the president will matter more than some statutory statement [that gives the DNI] an official role in naming the heads. I think what is more important is how much budgetary control he will have and whether his preferences about how roles and missions are allocated among agencies turn out to be the governing preferences or whether the other departments will still be able to override him and do their own thing, as was the case many times in the past.One of the concerns with the new legislation was it would result in a homogenized product that would disguise differences within agencies.There’s a tension between the values of pluralism and redundancy to maximize competition, thereby reducing the chances that dissenting views will be smothered, and the desire to have a strong central coordinator who will do the job more effectively than the old DCI could. For example, the Robb-Silberman report says at one point that the DNI should play a stronger role in controlling what goes in the president’s daily brief [a daily summary of intelligence information] to eliminate redundancies. Well, that’s fine and that’s efficient, but it also cuts against the notion that dissenting views should be communicated and uncertainties should not be covered up.The Robb-Silberman report criticizes U.S. intelligence agencies for failing to get an accurate fix on Iraq’s WMD. When the Soviet Union conducted its first atomic bomb test in 1949, that surprised U.S. intelligence, didn’t it?Yes. There had been a disagreement among various agencies about how soon the Soviets would get an atomic bomb, but the majority view was it would be something like 15 to 20 years later. That was at a time, though, when our ability to collect intelligence in the Soviet Union was very, very constrained or negligible, in some ways analogous to the situation in Iraq.I would think it is extremely difficult to get good human intelligence from these cultures. North Korea, for instance, has always been regarded as an impossible place to garner good intelligence.Yes. Everybody agrees we need better human intelligence, that we need to get inside the heads of the leaders of nasty countries or countries with exotic cultures, but it’s not clear how much more can be done, even with much more expensive efforts. But the effort needs to be made. You may have to increase the efforts by 50 percent to get a 5 percent improvement in output, but that may be worth it. The problem is there is a natural limit to how much you can expect to penetrate countries that are essentially closed societies. North Korea is the consummate example of that. Next to North Korea, Iraq under Saddam was an open society.Western intelligence did pretty well in the Cold War in Eastern Europe. Was that because it had a lot of effective agents working?It’s a combination of things. There were a lot more contacts between people in Western Europe and the United States and people in Eastern Europe. There were a lot of refugees and emigres who had contacts. But, even then, I would not exaggerate how much on-the-ground, human intelligence we got. The reason our intelligence did so well in the Cold War- and I would say more so in the second half of the Cold War than the first- was due largely to technical intelligence collection and the great advances in overhead [satellite] reconnaissance and electronic interception of communications. It was sort of a golden age for a few decades when we could get a huge amount through those technical collection means that don’t work as well now against rogue states or secretive sub-national groups that don’t communicate over the airwaves.What does Negroponte have to do when he appears before Congress? What kind of statements does he have to make?For political purposes, obviously, he has to indicate he’s really going to crack heads and make this new reorganization work to accomplish this sort of centralization and coordination that most of the critics said was missing. He’s got to say that to reassure people and look as if he’s serious. But he’s probably also got to lay out an agenda for what this amounts to operationally at least in general terms.What would be very interesting would be what, if anything, he says about his plans for relations with the Defense Department. It’s always been acknowledged that the Defense Department is the 800-pound gorilla in the intelligence community and recently there have been changes in the organization of intelligence activities in the Defense Department that move in the direction of even greater independence from the old DCI and presumably, if they go forward, from the new DNI. Negroponte won’t be able to say much about those [plans] in detail without starting some bureaucratic battles he may not be ready for, but if anybody is looking for a real statement that means something about how he’s going to accomplish the new agenda, he’s got to say something about the Defense Department and the organizational relationships with the DNI. That’s probably going to be the single-biggest issue in the next couple of years [related to] how the new reorganization works.What is at stake for the Defense Department?The biggest agencies in the intelligence business, in terms of both personnel and expensive collections systems, are housed within the Defense Department: the National Security Agency; the National Geospatial Intelligence Agency, the NGA, which replaced NIMA, the National Imaging and Mapping Agency; and the National Reconnaissance Office, the NRO. Those three very big collection agencies spend the bulk of the intelligence budget, have the bulk of intelligence personnel, and receive huge amounts of information. The question of what real authority the new DNI has to coordinate and harmonize and reallocate missions and programs among these agencies will be crucial. When the dust settles, if it turns out that it’s not more than what the old DCI had, then the new organization will begin to look as if it is the old system with a new name and perhaps not much more than that.The NSA was built up during the Cold War to intercept radio signals and phone calls from within the Soviet bloc. Is it as necessary today as it was then?It’s as least as necessary as it was then if you’re interested in the war on terror. But the obstacles to success have gotten bigger because of technological changes, such as fiber-optic communications, that make it harder to monitor communications of hostile states, and also because sub-national groups have become so much more careful about how they communicate. The competent ones don’t use cell phones anymore for sensitive communications. The Internet is very hard to monitor and control. The challenge to NSA has gotten very big. But most people would consider the interests of the United States in being able to intercept the communications of al-Qaeda or other terrorist groups to be equal to our interests in the Cold War in being able to get Soviet or Chinese communications.The focus has shifted to terror groups?I don’t know how the NSA allocates their resources. If I did, I couldn’t say, I guess, without going to jail. But, presumably, their interest is greater in these new targets by a long shot, although some of the traditional targets are going to be of continuing concern, China and Russia particularly. Proportionally, the interest in tracking and getting into the communications of these sub-national groups is a much bigger priority than it would have been during the Cold War or even a few years ago before September 11.There’s been some criticism in the press and in articles written by people like Joseph Cirincione of the Robb-Silberman report because it does not address whether the president’s decision to go to war in Iraq influenced intelligence-gathering.There are two questions: Did the administration politicize the intelligence professionals by putting pressure on them? And the second was: Did the administration make proper use of the information it got? I think on the first one, the report does come down and say it echoes the Senate Intelligence Committee report from a few months ago in saying that analysts were unanimous that they were not pressured to change their conclusions or that they did not succumb to any pressure to change their conclusions.The other question about how and whether the administration utilized the intelligence it got in making a decision for war is a controversial political question. It’s unrealistic to think any commission could productively get at that because that’s high politics. It’s an important question, but it’s one that is likely to be fought over in memoirs and journalistic investigations more than in some commission, because the commission has to be politically balanced to have general credibility, half Republican and half Democrat. And if it got into assessing that question, the whole exercise, I imagine, might fall apart. So, as a practical matter, I don’t think one could expect the commission to answer that question, which is at least as important as the other ones.
  • Intelligence
    INTELLIGENCE: Intelligence Reform
    This publication is now archived. What does the intelligence reform bill do? The National Intelligence Reform Act, which was strongly influenced by the recommendations of the 9/11 Commission, dramatically overhauls the U.S. intelligence-gathering bureaucracy. It creates a director of national intelligence (DNI) and places him or her in charge of intelligence-agency budgets and personnel. The Senate and House passed different versions of the bill in October 2004, and congressional negotiators worked out a compromise bill that was scheduled for a November 2004 vote. House opponents balked at the revised legislation, and House Speaker Dennis Hastert (R-Ill.) declined to send the bill to the floor. Presidential pressure revived the bill, which became law on December 17, 2004. Which issues delayed passage of the bill? Key Republican members of the House of Representatives claimed that some provisions of the comprehensive restructuring of the nation’s intelligence community could threaten national security by interfering with U.S. troops’ access to battlefield intelligence and by failing to restrict drivers’ licenses for illegal immigrants. Congressional and White House negotiators resolved the military issue, which appeared to be the main sticking point, and put off the license dispute. What were the opponents’ main objections? There were two key grievances, each backed by a powerful House committee chairman. James Sensenbrenner (R-Wis.), the chairman of the House Judiciary Committee, pushed for several immigration and law enforcement measures that had been in the House version of the bill, including the limit on licenses for immigrants who enter the United States illegally. Sensenbrenner was angry the provisions he backed were dropped from the final version of the legislation, which he called "woefully incomplete. "Duncan Hunter (R-Cal.), chairman of the House Armed Services Committee, was concerned that the new intelligence structure would interfere with what the Pentagon calls "warfighter support"—getting military intelligence to soldiers on the battlefield. Hunter’s concerns were allayed when negotiators added language to the bill explicitly preventing intelligence officials from interfering in the military chain of command. What were the details of Hunter’s argument? Hunter, a Vietnam veteran with a son in the Marine Corps, was concerned about provisions that shifted responsibility for key intelligence operations from the Pentagon to the DNI. A central issue was whether the Pentagon would have priority access to satellite images from the National Geospatial-Intelligence Agency (NGA) and the National Reconnaissance Office (NRO). Both are currently Defense Department agencies that will, under the terms of the reform bill, report to the DNI. Some experts say Hunter represents the feelings of the military establishment, which has long opposed civilian control of technical intelligence collection. The intelligence arms of the military services fought "tooth and nail" in the 1960s against the creation of the Defense Intelligence Agency (DIA), which provides military intelligence to the armed forces and lawmakers, says Alton Frye, presidential senior fellow at the Council on Foreign Relations and director of the Council’s Congress and U.S. Foreign Policy project. What were the details of Sensenbrenner’s argument? Sensenbrenner argued that state policies allowing illegal immigrants to apply for drivers’ licenses pose a serious national security risk. Most states require drivers to be legal residents of the United States, but 10 states--including Wisconsin, Sensenbrenner’s home state--do not. He pointed out that the 19 September 11 hijackers possessed a total of 63 drivers’ licenses. Sensenbrenner pushed for a national standard for drivers’ licenses that would deny them to illegal immigrants and, in the case of temporary visitors, link the expiration date on the license to the end date of the visitor’s visa. Was there opposition to intelligence reform from otherquarters? Yes, although the bill steadily gained support. General Richard Myers, chairman of the Joint Chiefs of Staff, wrote a letter to Congress in October arguing that control over three intelligence agencies that provide combat support--the National Security Agency (NSA), the NGA, and the NRO--should stay with the Pentagon. On December 2, 2004, however, Myers said measures in the compromise bill had addressed his concerns. Defense Secretary Donald Rumsfeld has opposed the idea of centralized control over the nation’s intelligence operations in the past, but eventually said he would support President Bush’s position. What are the bill’s major elements? The National Intelligence Reform Act will: Create a National Intelligence Authority to coordinate the efforts of the nation’s intelligence community. This new office will be independent of the Executive Office of the President and will oversee 11 of the 15 agencies that make up the U.S. intelligence community. Create a DNI to head the National Intelligence Authority. The DNI will be the principal intelligence adviser to the president and have responsibility for counterterrorism and intelligence related to national security, but will not be a member of the Cabinet. The DNI will have budgetary authority over the country’s civilian intelligence program and will "participate" with the defense secretary in creating the budget for military intelligence programs. The DNI will also be responsible for submitting a national intelligence budget to the president. Create a National Counterterrorism Center (NCTC) to coordinate the work of the nation’s intelligence agencies, as recommended by the 9/11 Commission. Which agencies fall under the DNI’s authority? The Central Intelligence Agency (CIA) , which gathers intelligence related to national security. The NSA, which encrypts sensitive U.S. information and works to decode foreign intelligence. The NGA, which collects and analyzes satellite images. The NRO, which develops and launches satellite systems for gathering intelligence. The DIA, which gathers military intelligence. The Bureau of Intelligence and Research (INR) at the State Department, which uses intelligence to advance diplomatic initiatives. The Office of Terrorism and Finance Intelligence (TFI) in the Treasury Department, which monitors money laundering and seeks to halt terrorist financing. The Office of Intelligence and the Counterterrorism and Counterintelligence Divisions of the Federal Bureau of Investigation(FBI). The Office of Intelligence of the Energy Department, which safeguards the nation’s nuclear weapons and ensures a stable energy supply. The Directorate of Information Analysis and Infrastructure Protection (IAIP) in the Homeland Security Department. The Directorate of Coast Guard Intelligence of the Department of Homeland Security. The intelligence arms of each military service--the Army, Navy, Air Force, and Marines-would remain under the direct control of the Defense Department. What else would the bill do? Establish a unified network to share more intelligence information among federal, state, and local agencies and the private sector. Each intelligence agency currently has its own database that only its members can access. Declassify the annual intelligence budget. The current annual total is thought to be around $40 billion, much of it controlled by the Pentagon. Create a Privacy and Civil Liberties Board to monitor government counterterrorism agencies for violations of civil and privacy rights. Establish an Analytic Review Unit in an ombudsman’s office to take a second look at National Intelligence Estimates and other analytical products to ensure their accuracy and search for and correct bias. Add border patrol agents, install cameras in baggage-handling areas of airports, increase cargo inspections, and take other measures designed to secure borders, transportation, and critical infrastructure. Promote outreach to the Muslim world in order to improve the image of the United States abroad and stem terrorist recruiting. Does the bill differ from the 9/11 Commission proposal? The bill is largely faithful to the 9/11 Commission’s recommendations. In its July 22 report on the September 11, 2001, terrorist attacks, the commission called for an overhaul of the nation’s intelligence services to reform the "broken" culture of intelligence-gathering and analysis that failed to prevent the attacks. However, the bill does not directly address a key commission recommendation: the creation of a single congressional committee with responsibility for overseeing the work of the National Intelligence Agency. Currently, more than 80 House and Senate committees and subcommittees deal with intelligence, a situation the 9/11 Commission called "dysfunctional." The Senate has appointed a task force to examine ways to implement the commission’s recommendations on this issue. — by Esther Pan, staff writer, cfr.org
  • Intelligence
    INTELLIGENCE: National Intelligence Czar
    This publication is now archived. Does the United States need a national intelligence czar?The 9/11 Commission report released July 22 recommends that Congress create a Cabinet-level post to oversee and control the 15 agencies that make up the so-called national intelligence community. Proponents say the new director will be able to reorganize those agencies and fix the lapses uncovered by the 9/11 Commission and other panels that have examined U.S. intelligence-gathering. Pressure to reform the system is mounting: a July 9 Senate Select Intelligence Committee report found that flawed analysis and poor management led the intelligence community to overstate Iraq’s weapons of mass destruction programs. George J. Tenet stepped down as director of the Central Intelligence Agency (CIA) a few days before the Senate report was released. What are the counterarguments?Some experts, officials, and lawmakers say that creating the new post will merely add another layer of bureaucracy and won’t address core problems such as weak data-collection capabilities and shortages of expert personnel. "Appointing a director of national intelligence will solve an immediate political need. But it’s at best a superficial fix," says Ellen Laipson, the president of the Henry L. Stimson Center and a former vice chairman of the National Intelligence Council. Who oversees the U.S. intelligence community now?The director of central intelligence (DCI)--a post currently filled by acting director John E. McLaughlin--is responsible both for running the CIA and managing the entire U.S. intelligence community. However, the CIA chief does not have the power to hire or fire the heads of the other agencies. In addition, some 80 percent of the intelligence community’s annual budget--which totals an estimated $40 billion--is controlled by the Pentagon. "The DCI has lots of responsibility without a comparable amount of authority, especially over resources," says Heather Kiriakou, the 2003-04 intelligence fellow at the Council on Foreign Relations and a CIA analyst. How many people work in U.S. intelligence agencies?The exact number is classified. Jeffrey Richelson, an intelligence expert who is a senior fellow at the National Security Archive at The George Washington University, estimates the total to be about 100,000. Included in that figure are some 20,000 employees at the CIA, some 40,000 in the National Security Agency (NSA), which collects and processes foreign telephone, radio, and other kinds of so-called signal communications and safeguards U.S. communications, and 7,000 in the Defense Intelligence Agency (DIA), which coordinates intelligence among the military services. What would a new director of national intelligence do?Appointed by the president and confirmed by the Senate, he would have the authority to manage many parts of the intelligence budget, appoint and fire key personnel, have access to all intelligence produced, and be the top authority on intelligence matters in discussions with the president and other executive branch officials, according to bills introduced in the House and the Senate. He would also develop and enforce standards and policy for the entire intelligence community and coordinate its relationships with foreign intelligence organizations. Day-to-day responsibility for running the 15 intelligence agencies would fall to the directors of each. How much control would the director have over military intelligence?It depends. The House bill introduced by Representative Jane Harman (D-Cal.) would allow the secretary of defense to retain primary budgetary and programming control over military intelligence. The Senate bill introduced by Senator Dianne Feinstein (D-Cal.)would transfer budget power to the new director. Under the 9/11 Commission plan, the new director would manage all agencies except for the Army, Navy, Air Force, and Marine Corps intelligence services. Which of the 15 intelligence agencies fall under the Pentagon’s jurisdiction?The Army, Navy, Air Force, and Marine intelligence shops.The DIA.The National Geospatial-Intelligence Agency uses imagery from satellites and other sources to create maps and analysis.The National Reconnaissance Office coordinates the collection and analysis of airplane and satellite reconnaissance information gathered by the military services and CIA.The NSA. What are the other intelligence agencies?The CIA collects and analyzes foreign intelligence relevant to national security.The Office of Intelligence of the Department of Energy analyses foreign nuclear weapons programs, nuclear nonproliferation, and energy security-related intelligence issues.The Directorate of Information Analysis at the Department of Homeland Security is charged with preventing terrorist attacks within the United States, reducing American vulnerability to terrorism, and minimizing the damage from attacks that do occur.Coast Guard Intelligence deals with information related to U.S. maritime borders and homeland security.The Bureau of Intelligence and Research of the Department of State (INR) collects and analyzes information affecting U.S. foreign policy.The Office of Terrorism and Finance Intelligence at the Department of the Treasury collects and processes terrorism financing information and other data that may affect U.S. fiscal and monetary policy.The Office of Intelligence and the Counterterrorism and Counterintelligence divisions of the Federal Bureau of Investigation (FBI) deal with espionage, terrorism, and international criminal cases. Why are there so many agencies?The intelligence community developed over decades as policy-makers responded to new threats and priorities. When the CIA was created in 1947, it was designed to complement, not replace, the military intelligence agencies that had collected information in World War II, according to a CIA-authored historical overview. The NSA was created in 1952 to be a center for signals intelligence collection; the DIA was created in 1961 to better coordinate military intelligence after the failed Bay of Pigs invasion of Cuba; and the NRO was founded that same year to handle the new field of satellite surveillance. Are there benefits to having multiple intelligence agencies?Creative tension among analytical agencies is one of the hallmarks of the U.S. intelligence system and is thought to improve the overall quality of analysis. The 1981 Executive Order on Intelligence mandated that "maximum emphasis should be given to fostering analytical competition among ... elements of the intelligence community." John J. Hamre, president of the Center for Strategic and International Studies in Washington, D.C., and a former deputy defense secretary, told a congressional committee July 21 that, "I fear bringing [intelligence operations] all under one chief would seriously threaten what little competition for ideas we have."In addition, many government agencies use their own intelligence shops to gear analyses specifically to the needs of their personnel, says Michael P. Peters, the executive vice president of the Council on Foreign Relations. For example, the State Department generates intelligence reports targeted to the concerns of diplomats. How well do these agencies coordinate?Often poorly, experts say. The three panels that have recently released public reports on intelligence gathering--the 2002 joint congressional inquiry on 9/11, the Senate Intelligence Committee report, and the 9/11 Commission--highlighted a lack of information-sharing among agencies. (The conclusions of a fourth inquiry, a presidential advisory panel on intelligence reform headed by former National Security Adviser Brent Scowcroft, are classified.) Throughout the intelligence community, coordinating so many diverse agencies is nearly impossible, some analysts say. "There are too many agencies, which makes the intelligence community too decentralized and impedes the ability to coordinate at the ’worker’--or analyst--level," Kiriakou says. "I don’t think 15 agencies all have to have expertise in a particular subject. We could create discrete centers of expertise, perhaps within the CIA, that would bring together experienced analysts," Laipson suggests.Sometimes the CIA’s role as the lead U.S. intelligence agency creates its own problems, according to the Senate Intelligence Committee report. The committee found that the CIA hampered intelligence sharing by keeping some of its sources secret from other analysts, allowed CIA analysts to control the presentation of information to policy-makers, and excluded analysis from other agencies. While the DCI was supposed to function as both the head of the CIA and the head of the intelligence community, "in many instances he only acted as the head of the CIA," the committee found. How could the creation of a director of national intelligence resolve these problems?Proponents of the idea say that a director of national intelligence would be authorized to reorganize the intelligence community to make it more responsive to terrorism and other emerging threats. His Cabinet-level status could enhance communication between the intelligence community and the president and, theoretically, his White House-based office wouldn’t be biased toward any one intelligence agency. A director solely devoted to coordinating national intelligence would have more time to do his job than one who is simultaneously managing the CIA, and the CIA director would have more time to make sure that his agency was running properly. In addition, an independent director might be more inclined to make painful or politically difficult reforms, such as layoffs or merging some intelligence agencies. What would happen to domestic intelligence?Under the 9/11 Commission’s plan, the national intelligence director would oversee a homeland intelligence division that would include the intelligence units of the FBI and the Department of Homeland Security. An FBI reorganization would create an elite counterterrorism unit. Some analysts have suggested the creation of a new security agency modeled on Britain’s MI-5 that would merge FBI and CIA intelligence efforts; the 9/11 Commission report does not make this recommendation. Who are the advocates of the national intelligence czar idea?It has been endorsed by the 2002 joint congressional committee, the 9/11 Commission, and, reportedly, the classified conclusions of the Scowcroft panel. A number of lawmakers have signed on to pending legislation that would create the post, and presumptive Democratic presidential nominee John F. Kerry supports the creation of a director of national intelligence with a 10-year term. "The creation of such a Cabinet-level position will not in itself solve every problem, but it will be an important first step," he said July 16. Who are the opponents?Some lawmakers are skeptical, and the leadership of the CIA and Defense Department--which would stand to lose significant control over their personnel and budgets under the plan--have spoken out against it. Acting DCI McLaughlin, in an interview with Fox News Sunday on July 18, said, "The idea of a czar to oversee the entire intelligence community ... doesn’t relate particularly to the world I live in. I think with some modest changes in the way the CIA is set up, the director of central intelligence could carry out that function well and appropriately." Speaking before the 9/11 Commission in March, Secretary of Defense Donald Rumsfeld said that consolidating all the intelligence agencies under a single intelligence czar "would do our country a great disservice." Instead of centralizing them, Congress should look at ways to break down barriers between agencies. "Fostering multiple centers of information has proven to be better at promoting creativity and challenging conventional thinking," he said. What arguments do the opponents make?"Just putting someone in charge doesn’t fix problems," says Stephen E. Flynn, the Jeane J. Kirkpatrick senior fellow for national security studies at the Council on Foreign Relations. Measures must be taken to address the underlying problems of weak data-collection capabilities and shortages of personnel, foreign-language skills, and funding throughout the intelligence and homeland security agencies, he and other experts say. "My concern is that we will see [a director of national intelligence] as a silver bullet," Flynn says.Some experts are also concerned that a White House-based intelligence czar will be reluctant to bring the president alternative views, independent thinking, or bad news. Other critics say that the new director will be disconnected from the community he is representing and, therefore, ineffective. It would be similar, says Richelson, to appointing a defense czar who didn’t actually manage the Pentagon. Robert M. Gates, the DCI under President George H.W. Bush, argued in a June 8 New York Times op-ed that the new director would likely have insufficient authority. "You can bet that any provisions transferring Pentagon agencies and their budgets to the new office would be watered down and compromised into meaningless verbiage. ... The intelligence czar would, in fact, be an intelligence eunuch," he wrote. What alternatives do opponents offer?Enlarge the DCI’s powers: Instead of creating a new director, Congress could give the DCI more budgetary and hiring authority to manage the intelligence community and permit him to further delegate to a deputy the day-to-day running of the CIA. This option would retain the CIA’s central role in the intelligence community. Another idea: give the DCI a fixed-term that bridges presidential administrations, thereby making him "nonpolitical," a suggestion McLaughlin made in the Fox News interview. Currently, the DCI serves at the president’s pleasure.Fix things from the bottom up. Increase expertise among analysts, improve management and quality control, and ease information sharing among agencies, instead of focusing on creating a new office. "I think that rather than the quick fix, it’s much more worthwhile, while we have the political will, to address all the issues," Kiriakou says.Reduce redundancies. Reduce the total number of intelligence agencies and reorganize them under the current DCI. Does President Bush support the intelligence czar idea?He has not ruled it out, but neither has he endorsed it. He said July 19, in advance of the release of the 9/11 Commission report, that its expected recommendations "are necessary: such as more human intelligence, better ability to listen or to see things, and better coordination amongst the variety of intelligence-gathering services."
  • Intelligence
    INTELLIGENCE: Major Reform Plans Compared
    This publication is now archived. What are the differences among the competing congressional proposals to reform the U.S. intelligence community?Congress is considering two different proposals. The Senate passed a bill October 6 strongly influenced by the recommendations of the 9/11 Commissionthat would create a national intelligence director (NID) post with sweeping authority over intelligence agency budgets and personnel. A competing bill sponsored by House Republicans and passed October 8 would also establish a NID but with more limited powers. The House bill also includes several provisions on border security and immigration; some critics say these provisions are too harsh and decrease the chances that the House and Senate will agree on a final bill. Others say both pieces of legislation are hasty and ill-advised attempts to resolve a complicated problem. Still, many lawmakers say intelligence reform, a hotly debated issue in the presidential campaign, is likely to be passed in some form, possibly even before the November 2 elections. What are the major elements of the Senate bill?On October 6, the Senate voted 96-2 to pass the Collins-Lieberman National Intelligence Reform Act. The bill was co-authored by Susan Collins (R-Maine), chairwoman of theSenate Governmental Affairs Committee, and Joseph Lieberman (D-Conn.) and addresses all 41 of the 9/11 Commission’s recommendations. It is supported by the White House, the 9/11 Commission, and many families of 9/11 victims. The bill’s major provisions:Create a National Intelligence Director as head of the intelligence community and principal adviser to the president, as recommended by the 9/11 Commission. The NID will have budget authority over the intelligence program and will submit a unified intelligence budget to the president. He or she will also have full authority to transfer funds and personnel between agencies. The NID will coordinate foreign and domestic intelligence and take "clear responsibility and accountability for counterterrorism and other intelligence matters relating to the national security of the United States." The 9/11 Commission recommended that this post be part of the office of the president, but the Senate bill makes the position head of an independent agency not in the White House.Create a National Counterterrorism Center (NCTC) to coordinate the work of the nation’s intelligence agencies, as recommended by the 9/11 Commission. The NCTC would be responsible for coordinating intelligence efforts and operational planning across agencies. For example, it would evaluate foreign and domestic intelligence about terrorist threats from the Federal Bureau of Investigation (FBI), CIA, Department of Homeland Security, and other agencies, issue warnings about U.S. preparedness, and assign defensive operations to the appropriate agency.Create a Civil Liberties Board to protect the civil rights and privacy of citizens and to act as a watchdog organization over government agencies fighting terrorism.Establish an Analytic Review Unit in an ombudsman’s office to evaluate intelligence analysis and ensure that the intelligence provided by the NID is not politically influenced.Establish an information-sharing network to facilitate flows of information among federal, state, and local agencies and the private sector. Each intelligence agency currently has its own database that only its members can access.Invest in technologies to make borders, transportation, and critical infrastructure safer.Promote outreach to the Muslim world--including increasing aid to Afghanistan, renewing aid for Pakistan, and opening new channels for dialogue with Arab countries--to try to slow terrorist recruiting.Declassify the National Intelligence Program’s total annual appropriation in order to promote public accountability. The current annual total devoted to intelligence is thought to be around $40 billion, much of it controlled by the Pentagon. Does the Senate bill differ from the 9/11 Commission proposal?The Senate bill is largely faithful to the 9/11 Commission’s recommendations. In its July 22 report on the September 11, 2001, terrorist attacks, the commission called for an overhaul of the nation’s intelligence services to reform the "broken" culture of intelligence-gathering and analysis that failed to prevent the attacks. However, the Senate bill does not directly address a key commission recommendation: the creation of a single congressional committee with responsibility for overseeing the work of the intelligence agencies. Currently, dozens of House and Senate committees and subcommittees deal with intelligence, a situation the 9/11 Commission calls "dysfunctional." The Senate has appointed a task force to examine ways to implement the commission’s recommendations on this issue. How does the House plan compare to the Senate plan and the 9/11 Commission recommendations?There is some overlap, but the House bill also contains some significant differences in key areas. The 9/11 Commission Recommendations Implementation Act is backed by House Republicans, including Speaker of the House J. Dennis Hastert (R-Ill.). It also creates a NID, but limits the position’s power; it creates an NCTC and a civil liberties board; invests in programs to improve the image of the United States in the Muslim world; supports an information-sharing network; declassifies the aggregate figure appropriated for intelligence annually; and endorses more streamlined congressional oversight of intelligence operations. However, the House bill modifies some elements of the Senate bill and adds others. What is modified?The most significant change is that the NID proposed in the House bill is granted limited budget authority--and therefore much less power--than the director in the Senate bill. The NID will not take charge of a unified intelligence budget, for example, and will only "participate" with the secretary of defense in the development of the defense intelligence budget. The House bill also places strict guidelines on the NID’s ability to shift funds or personnel from one intelligence agency to another. What new elements are added?The House bill gives law enforcement officials expanded authority in a range of areas. These include:Increased powers to detain suspected terrorists indefinitely, and new authority to deport suspects to nations known to use torture. The deportee would have to show "clear and convincing evidence" that he would be tortured at home in order to halt the process.The bill would also integrate border security into a nationwide screening system that would protect sensitive areas like transportation hubs and nuclear sites. It would establish a biometric screening system for all people entering or exiting the United States, require airlines to provide information on passengers to check against "no-fly" lists; and establish national standards for issuing identity documents like passports and drivers’ licenses to prevent fraud. Critics say the bill extends provisions of the Patriot Act that, they assert, threaten civil liberties and could discriminate against certain groups. What happens next?The bills go to a conference committee, where House members and senators will try to devise a compromise proposal to submit to both chambers for another vote. Congressional leaders plan to call members back to Washington to vote on the new proposal. If the new bill passes, it will be sent to President Bush. What is the president’s position on intelligence reform?He says he backs it and vows to sign a bill to implement it. Has President Bush’s position on the issue shifted over time?Yes. Initially resistant to the commission’s proposals, he endorsed some of the commission’s recommendations in a statement August 2. Bush agreed with the idea of a national counterterrorism center and a national intelligence director post, but without Cabinet rank or full budget authority for the NID. Then, on September 8, Bush modified his position and saidthat he supports giving strong budgetary authority to a NID. Specifically, he proposed giving the national intelligence director control over the approximately 70 percent of the intelligence budget not related specifically to military operations. The director would take charge of the budget of the National Foreign Intelligence Program, which accounts for nearly half the nation’s intelligence budget. The NID would be assisted by a new Cabinet-level Joint Intelligence Community Council, which will advise the NID and coordinate the intelligence community to protect national security. However, Bush stopped short of fully supporting the 9/11 Commission’s proposals. His intelligence director would not be based in the White House, and the Pentagon would retain control over intelligence-gathering relating to military planning. What has the president done to enact these reforms?On August 27, the president signed an executive order that gave the CIA director expanded authority to develop a national intelligence budget and transfer funds from one intelligence program to another, as well as increased budget authority over programs run by the National Security Agency (NSA), Defense Intelligence Agency (DIA), andNational Reconnaissance Office. White House officials said these expanded powers were interim measures until a national intelligence director was named. Another order created a National Counterterrorism Center, as recommended by the 9/11 Commission, to act as the government’s data bank on terror and monitor of counterterrorism operations. A third executive order directed the nation’s intelligence agencies to better share information; and a fourth created an advisory board to safeguard civil liberties. What is at stake in the debate over intelligence reform?The fate of the intelligence community--which is made up of 15 agencies and has tens of thousands of employees--and control the annual intelligence budget. The Pentagon oversees some 80 percent of these funds and, experts say, will fight to keep that budgetary control. Pentagon officials have also expressed concern that wholesale intelligence reform would threaten "warfighter support," the ability to get military intelligence to soldiers on the battlefield. Is there opposition to intelligence reform?Yes. The Defense Department and the leaders of powerful Senate committees overseeing defense and intelligence--whose control over funding would be threatened by a NID with strong budget powers--are determined to protect their territory, experts say, and other critics call the reforms proposed by Congress too broad and too quick to be effective. In a statement released September 21, several senior intelligence and security officials expressed their concern. "Racing to implement reforms on an election timetable is precisely the wrong thing to do," the statement said. The statement was signed by former secretaries of state Henry Kissinger and George Shultz, former defense secretaries Frank Carlucci and William Cohen, former deputy secretary of defense John Hamre, former CIA director Robert Gates, and former senators David Boren, Gary Hart, Sam Nunn, Bill Bradley, and Warren Rudman. Does the intelligence community agree on what reforms should take place?No. "Most people would rather work within the current institutions and just improve them," says Heather Kiriakou, the 2003-04 intelligence fellow at the Council on Foreign Relations who has since returned to work at the agency. She says the intelligence community thinks any potential reforms should focus on a more equitable distribution of resources. "Most of the intelligence that goes to the president comes from the CIA," she says, "but most of the budget is in the Pentagon. People ... want to fix what’s really wrong." Nevertheless, Kiriakou agrees that reform is necessary. "We have way too many intelligence lines out there to be useful to the policy-makers," she says. The answer, she argues, is streamlining the nation’s intelligence community to get rid of "competing and duplicative efforts."
  • United States
    Cordesman: 9/11 Commission Report Lacks Specifics
    Anthony H. Cordesman, a leading expert on intelligence, says President Bush wisely declined to embrace all of the 9/11 Commission’s proposals for intelligence reform. Bush’s call for a new director of national intelligence (DNI) was “a compromise between taking the kind of action that would show that intelligence reform was under way and overreacting to the 9/11 report, which provides almost no detail, no specific plans, and no rationale for most of its recommendations.” Cordesman says it is “irresponsible” for politicians like Democratic presidential nominee John F. Kerry to call for quick approval of all the commission’s recommendations without proper study by Congress. Cordesman holds the Arleigh A. Burke chair in strategy at the Center for Strategic and International Studies in Washington. He was interviewed on August 3, 2004, by Bernard Gwertzman, consulting editor of cfr.org. President Bush said on Monday that he supports the idea of a new director of national intelligence, a new intelligence “czar”... Let me interrupt. Nobody has said this new intelligence director is going to be an intelligence “czar,” in terms of defining any of the powers he is going to have. This is particularly true in terms of tasking and budget control. So until you see a presidential directive, I would be very careful about using the word “czar.” What then has the president proposed? He compromised between taking the kind of action that would show that intelligence reform was under way and overreacting to the 9/11 report, which provides almost no detail, no specific plans, and no rationale for most of its recommendations. What Bush did, effectively, was to say that there would be a new national intelligence director and that this new person would be his principal adviser and would be separate from the director of the Central Intelligence Agency [CIA]. He talked about an office that would combine domestic and foreign intelligence in terms of coordination, but he did not really go beyond that to try to define specific roles. He talked about creating a national counterterrorism center in this office, but he also talked about building on the work done since 9/11 within the CIA. Much of this would presumably consist of transferring a component of the CIA to the new DNI. But he was careful to note something the 9/11 Commission did not consider at all— that there are many, many more uses of intelligence than just counterterrorism. So he pointed out that it might well be necessary to have a similar center to deal with issues like proliferation. He also wisely, I think, talked about endorsing the recommendations of the commission in some areas, but provided no details as to which he would endorse, the timing, or how [the recommendations] would be implemented. Given the fact that the commission report basically provides no details as to what these recommendations mean in terms of staffing, costs, procedures, information technology, or any of the other steps necessary to implement them, the president has effectively left most issues open. Is this good or bad? Is this now open for discussion with Congress? It will take some time to put together a plan. That is one of the key issues. Nothing could have been worse or more impractical than calling Congress back to essentially try to vote on legislation to implement recommendations that have no details and no specifics. I think one of the great problems people face is that politicians rushed to join the bandwagon, effectively endorsing chapters 12 and 13 of this report. But they could not possibly have bothered to read what they were endorsing. Nobody in Congress with any experience is going to endorse a generalized recommendation for organizational change without any specifics, without any knowledge of the cost or the effectiveness, or even, because this is the major failing of the report, any knowledge of what has been done since 9/11 to try to fix the problems exposed in the commission report. Are you implying that Senator John F. Kerry, the Democratic nominee, was premature in endorsing the report’s recommendations? In fairness to Senator Kerry, there were many people in both parties who rushed out to gain political visibility and do the same thing. But it isn’t a matter of being premature; it is a matter of being totally irresponsible to think that you can rush Congress back to pass legislation when you haven’t the faintest idea of what it means, when most of the recommendations have never been reviewed or commented on by the intelligence community, and nobody has any idea of the staffing requirements or costs. There has been some criticism that the president, by declining to give the DNI control over the government’s intelligence budget, has made the job meaningless. Is this criticism premature? I think it is. The president has to consider some very real problems. Most of the intelligence budget goes to what are called “national technical means” [such as photo and communications satellites]. These are extremely sophisticated high-technology systems. Almost all of the planning and development of these systems occurs in the Defense Department [DOD]. They are designed to be integrated into an overall command-and-control system for military crisis management and war fighting. Now, when you reach budget decisions you have to have a budget structure where both the new DNI and the DOD can play the proper roles in budget review, and where there is programming authority and a programming staff to look beyond the current annual requirement to the overall needs for intelligence and how they fit into our command-and-control and communications systems. Again, one of the great problems in the commission report is that it looked at exactly one issue— counterterrorism— and none of the others. But [U.S.] intelligence users consist of more than 1 million people, many of them in uniform, and when you talk about budgeting and programming authority, you have to consider that. The other difficulty is that at some point— and it will have to be very quick, if the new DNI is given budget authority— the [current] archaic and outdated budget system, which has many different elements and information systems, is going to have to be integrated and converted into a more modern system. You cannot simply wave a magic wand and tell somebody how to create a system that can manage what is certainly more than $20 billion a year. I’m not quite sure where you come out on this. Do you think the new DNI should have overall budget authority, or should he just be a coordinator with the existing agencies? I think, like almost every recommendation in the commission report, that is something that requires study and the creation of some clear planning system. I think the DNI has to have programming capabilities, budget review, and budget authority. But he is not the only person who has to be involved in the process. And the DOD is still going to be the primary office in charge of integrating, developing, and reviewing most of this budget. In fact, if you look at the commission report, one of the problems— which is typical— is there is no description of any of these issues. The president is going to have to study this and reach a decision. All of the people who talk about how this should be implemented instantly, without any study or planning, have absolutely no idea of what they are talking about or what they mean when they say it. You are not happy with the overall conclusions of the report? One needs to be very careful. Many of these conclusions are probably very valuable. But this is a 13-chapter report. Eleven chapters are a masterful description of what happened and what went wrong that led to the 9/11 attack. There is no chapter that explains what people did after 9/11. There is no chapter that qualifies that this is only one of many problems in intelligence and intelligence reform. The last two chapters effectively describe changes in an organizational chart and make very broad recommendations. Anybody who bothers to read them, which tends to be a remarkably few people who are commenting on the report, realizes that you can’t solve problems when you don’t know what you are saying in terms of staff, costs, operating systems, and other details. This is critical because, among other things, when you look through that report, you see vague recommendations about getting rid of the causes of terrorism or about dealing with issues like Islamic extremism or improving the quality of the CIA, which are among the most important recommendations you could make. And then you suddenly realize that this is a paragraph of generalities or cliches with absolutely no operating content at all. To do its job properly, the commission needed at least several more months. It needed to actually create useful plans. And at some point, there needs to be a commission, or somebody, who looks at the overall needs of the intelligence community and doesn’t make counterterrorism effectively the only function of the intelligence community. Who would be the ideal DNI? The answer to that is no one. You are asking who is the perfect person to tie together collection and analysis for the entire world, looking at today’s issues and indefinitely into the future, and then communicate them perfectly to all the possible users, from the president on down. That person clearly does not exist. But whoever does do it has to have vast experience in actually managing the intelligence community, in knowing how to allocate resources, looking at the overall complexity of this issue. One of the great weaknesses in the new system is the same weakness of the old system: The same person is supposed to create an effective structure to manage a global intelligence system, which costs more than $20 billion a year, and then be the ideal personal intelligence adviser to the president. I’m not sure that, quite apart from the perfect person, one person can do those functions. But again, that question is not addressed in the 9/11 report.
  • Intelligence
    Testimony of Dr. Morton H. Halperin Before The United States Senate Judiciary Committee
      Testimony of Dr. Morton H. Halperin Senior Fellow, The Council on Foreign Relations, and Chair, Advisory Board, Center for National Security Studies Before The United States Senate Judiciary Committee Subcommittee on the Constitution, Federalism, and Property Rights U.S. Senator Russell D. Feingold, Chairman October 3, 2001   Mr. Chairman, It is a very great pleasure for me to appear again before this distinguished sub-committee. Since the text of the legislation remains a moving target I thought it would be more useful if I stepped back and discussed a few issues in more general terms. This committee does not have to be reminded that intelligence agencies have in the past abused their authority to spy on and even disrupt lawful political activity under the guise that those protesting the actions of our government were in fact agents of a foreign power. Now we are told that the efforts of Congress to expose those abuses, especially the work of the Church Committee, is somehow responsible for the failure of the CIA to learn about and prevent the tragic acts of September 11. This is an outrageous characterization,both because in a democracy we must be able to discuss abuses of power and discuss how to prevent them, but even more becausethe Church Committee report did not lead to any legislation limiting the authority of intelligence agencies. In fact, to this day, Congress has not legislated any limits on the ability of the CIA or other intelligence agencies to conduct surveillance in the United States and abroad beyond that initial prohibition in the act creating the CIA that asserted that the CIA would have no internal security functions. This brings me to FISA which is a grant of authority by the Congress to the President and not a limit on what authority would otherwise exist. Since there is a good deal of confusion about this I want to take a moment to remind the Committee how FISA came about. I speak from having been deeply involved in the process which led to the enactment of FISA. Until the mid-1970s the executive branch regularly conducted electronic surveillances for “national security” purposes without a court order. It was only after the Supreme Court held that wiretaps were covered by the Fourth Amendment and the scandals revealed by the Church and Pike Committees opened the intelligence agencies to threats of lawsuits and damages that the government reconsidered its position and decided that it needed congressional authorization to conduct electronic surveillance for national security purposes. (In the interest of full disclosure, I should note for the record that I was the subject of a 21 month warrantless wiretap of my home telephone from 1969-71. After I and my family filed suit the court found that the surveillance violated our constitutional rights. Reading the governments logs of your private phone calls for an extended period does bring sharply into focus the danger of abuse and the value of privacy). FISA thus arose from a request from the government for authority to conduct electronic surveillance for national security purposes. The government explained that it could not use Title III procedures for a number of reasons including its desire to gather foreign intelligence information even when no crime was suspected and its unwillingness ever to provide notice that it had conducted a surveillance. Congress debated long and hard about FISA and enacted legislation that was substantially different from the original draft submitted by the administration with the usual demand that it be enacted immediately and without any changes. In the end Congress struck a deal with the administration with the support of some civil libertarians including me (I then spoke for the ACLU on these issues). The basic compromise was this: Congress gave the executive branch the authority to conduct electronic surveillance for national security purposes under a lesser standard than the probable cause that it would gather evidence of a crime. Equally important, the government was given permission to keep the surveillance secret and not provide the notice required by Title III when the surveillance ended. In return the government agreed to judicial supervision, and provisions to minimize the interception of non-germane information. Most important, it was agreed that the government would not use the FISA procedures if it was conducting a criminal investigation and would switch to a Title III warrant if it began a criminal investigation. Subsequently, in 1994 Congress broadened FISA to include physical searches which can be conducted even against the homes of Americans without a warrant, without knock or notice, and without ever informing the person that the government has surreptitiously acquired information from his home. I believe that this provision is clearly unconstitutional and the Supreme Court seems to agree (See Richards v. Wisconsin (1997) holding that a blanket exception allowing no-knock entries for warrants served in drug cases violated the 4th Amendment). But that is for another day. For our purposes, we need to keep in mind that we are talking about the secret searches of the homes of Americans and not just wiretaps of foreign embassies. It is from this perspective that the proposed amendments to FISA must be examined. The most disturbing provision in the administration draft bill is the one permitting the government to initiate a FISA surveillance even when the primary purpose of the government is to gather evidence for a criminal prosecution. As I said, FISA authority was given to the government for situations in which it was not seeking to indict individuals for crimes, but rather to gather information for foreign intelligence purposes. To now permit these procedures to be used in a criminal investigation would almost certainly be unconstitutional and would certainly be dangerous. Whether the change in the law is from “the” to “a” or to “significant” the result is the same. The Executive would always be able to use FISA to conduct surveillance whenever it believed that the people being surveilled were agents of a foreign power thus circumventing the notice and probable cause requirements of the Fourth Amendment. Any legitimate problem that the government has in this area can be cured either by explicitly permitting exchanges between law enforcement officials and those conducting a FISA surveillance or by permitting the government to seek two warrants for the same surveillance, as the Senate Intelligence Committee leaders have suggested. A second problem with the administration bill is the effort to permit the government to get warrants for six months or a year for FISA searches of individuals it suspects are agents of a foreign power as it now has for foreign powers themselves. Here again, some history may help to explain why this provision was written as it was and why it should not be changed. When FISA was being debated in the Congress the shorter time limits on warrants applied to all targets. The government pointed out that it made no sense to go back so often if the target was, say, the Soviet embassy. And so Congress agreed to permit longer warrants for foreign powers themselves. Now the government seeks to bootstrap using this difference to argue that it should not be required to seek frequent warrants against agents of a foreign power. We need again to recall that the government has been granted the authority to wiretap a person, even an American citizen, or secretly break into his home and surreptitiously remove his papers. It is not too much to ask that the government return regularly to a specially selected judge in a separate court with full security protections to demonstrate that it was right in thinking that the target was an agent of a foreign power engaged in illegal activity. With the indulgence of the Committee I would like to comment on two other matters raised by the Administration’s draft. The first relates to the provisions which permit the government to share information gathered for law enforcement purposes, including Title III surveillance and grand jury testimony, with intelligence officials. Given the activities of terrorists who operate both in the United States and abroad, I believe that such sharing is appropriate, but I believe it needs to be limited in several ways. First, when the information is gathered under judicial supervision, the court’s approval should be required for the transfer. Second, the information transferred should be limited to Foreign Intelligence Information as that term is defined in FISA. Third, the disclosure should be limited to those officials who are directly involved in a terrorism investigation. Finally, the information should be marked and safeguarded so that these restrictions can be enforced, much as classified information is marked and stored. Finally, I want to comment on the extraordinary proposal to include disclosure of the names of covert agents in the new list of federal terrorism crimes. This is a speech crime which has no place in this list. I was deeply involved in the development of this statute as well. Again, although the administration, in this case as with FISA, both Democratic and Republican, insisted on immediate action and no changes, Congress deliberated carefully for several years. Before it enacted the statute it insisted on a number of safeguards to insure that it would not prevent the press from publishing information it had acquired by legitimate means. For example, Congress inserted a bar on conspiracy provisions so that a reporter could not be accused of conspiring with a source. This protection and many others would be swept away if this crime remains on the list of federal terrorism crime. Mr. Chairman, there is an important lesson in the history of the enactment of FISA and the Intelligence Agents Identities Act. It is that if we take both national security and civil liberties seriously, and if we work hard and take the time that we need we can find solutions that protect them. The Congress deserves high praise for not giving in to the administration’s demand that it act first and read later in the face of the unbelievable and unfathomable events of September 11. We have gone very far in a very short time from the administration’s first draft. With a little more time and a little more give and take, I believe we can arrive at a text which strikes an appropriate balance. I urge you to stay at the task. I commend the sub-committee for holding this hearing. I appreciate the opportunity to testify and would be pleased to answer your questions.
  • Human Rights
    Testimony of Morton H. Halperin and Kate Martin Before the Permanent Select Committee on Intelligence of the U.S. Senate
    Statement of Morton H. Halperin, Chair, Advisory Board, and Kate Martin, Director, on behalf of the Center for National Security Studies Before the Permanent Select Committee on Intelligence of the United States Senate on Legislative Proposals in the Wake of the September 11, 2001 Attacks Including the Intelligence to Prevent Terrorism Act of 2001, S. 1448 September 24, 2001 Thank you Mr. Chairman and Vice-Chairman for the opportunity to testify today on behalf of the Center for National Security Studies. The Center is a civil liberties organization, which for 30 years has worked to ensure that civil liberties and human rights are not eroded in the name of national security. The Center is guided by the conviction that our national security must and can be protected without undermining the fundamental rights of individuals guaranteed by the Bill of Rights. In its work over the years on legislation from the Foreign Intelligence Surveillance Act to the Intelligence Oversight Act, the Center has begun with the premise that both national security interests and civil liberties protections must be taken seriously and that by doing so, solutions to apparent conflicts can often be found without compromising either. We appear before you today at a time of great mourning, when it is difficult to turn our thoughts and attention from anything but our grief and trouble. And we appreciate the enormous efforts of those individuals who have put their own grief aside to concentrate on searching for survivors, comforting those who have suffered most directly and finding and holding accountable the perpetrators of these crimes. It is not too soon to begin thinking about how we can improve our ability to prevent such unspeakable events from occurring again. However, as we do so we must resolve to act in a way that protects our liberties as well as our security and which recalls the lessons of the past from times when we permitted our concerns for security to accept erosions of our liberty that we now regret. The Alien and Sedition Acts, the internment of Japanese Americans, McCarthyism, and the efforts of intelligence agencies and the FBI to disrupt the civil rights and anti-war movements were not our proudest moments. We must not repeat them or lay the seeds for future abuses. We owe it to all those innocent people who were murdered to reflect upon those basic principles and values which should inform our discussion today. What distinguishes us as a people from our fellow human beings who committed these terrible acts is our commitment to law and to individual freedom. It is a commitment to law made deliberately, with calm reflection and an opportunity for public debate. The genius of democracy is the understanding that in the noisy and seemingly inefficient marketplace of ideas, the wisest decisions will be made. And certainly there is no more important subject than how to protect both our liberty and security most especially at a time like this when both may be so at risk. The American people look to the Members of this Committee to make law as the founders of the Constitution envisaged when they set up this legislative body, after a full public debate informed by facts, analysis and the chance for reflection. We owe nothing less to those who have been killed and to our children born and to be born. We commend the Chair and the Vice-Chair for their hard work and quick action to outline proposals intended to help prevent such horrific acts in the future and to focus on needed structural reforms in the intelligence community. We are grateful to this committee for holding public hearings and for inviting the Center for National Security Studies to testify. At the same time, we call upon this committee not to precipitously make changes to long-standing rules on some of the most technically complicated and difficult issues before the Congress. In urging you to proceed calmly and deliberately we speak on behalf of a coalition of more than 140 organizations from all ends of the political spectrum who last week all agreed on a Statement, which reads in part : IN DEFENSE OF FREEDOM This tragedy requires all Americans to examine carefully the steps our country may now take to reduce the risk of future terrorist attacks. We need to consider proposals calmly and deliberately with a determination not to erode the liberties and freedoms that are at the core of the American way of life. We need to ensure that actions by our government uphold the principles of a democratic society, accountable government and international law, and that all decisions are taken in a manner consistent with the Constitution. We can, as we have in the past, in times of war and of peace, reconcile the requirements of security with the demands of liberty. We should resist the temptation to enact proposals in the mistaken belief that anything that may be called anti-terrorist will necessarily provide greater security. We must have faith in our democratic system and our Constitution, and in our ability to protect at the same time both the freedom and the security of all Americans I ask permission, Mr. Chairman to submit for the record as an attachment to my statement the full statement of the In Defense of Freedom coalition and a list of the organizational and individual signers of the statement. The danger of haste is not just to our civil liberties but equally to our security. We face an equal danger that in the understandable rush to do something, what is done will not be effective in making us any safer, that it will substitute for the difficult analysis and work that is needed to figure out just how to prevent such attacks in the future. This is particularly true with regard to widening surveillance of Americans, where extending the net of surveillance, rather than doing the difficult work of trying to figure out who should be targeted, may well lead to information overload, where it will not be possible for the government to distinguish the important from the insignificant. We have had the Chairman’s bill since Saturday morning and the administration’s proposals being considered by this committee for two days more than that. We have done our best to provide the Committee with our preliminary analysis of the proposals. But most significantly, we urge you before acting, to hold additional hearings, to obtain in writing the careful analyses needed of what the current authorities are and what changes would be effected by these proposals, why such changes would be useful and what the risks will be. These are very technical and complicated issues, with enormous implications for both civil liberties and our security and we need to act carefully. If there are specific authorities immediately needed by the current investigators into last week’s acts, those authorities could be separated from the rest of the proposals and considered as quickly as possible. But those proposals designed to prevent such intelligence failures in the future, can only be done wisely and effectively after more is known about the cause of the failure and a public discussion about how to fix them. On the subject of haste, we welcome the provision that would undo the hasty action of the Senate 10 days ago in repealing the DCI guidelines on recruitment of assets involved in terrorism or other human rights violations. That provision (sec. 815 in the September 13 amendment to H.R. 2500) was apparently based on the misunderstanding that the existing guidelines had prevented the CIA from recruiting terrorist informants, when the guidelines in fact simply required procedures intended to insure that the appropriate high level officials at the agency approved the use of any such informants. They were adopted in response to the report by the President’s Intelligence Oversight Board that the CIA had not kept this committee informed as required by law of serious human rights violations. We understand that Section 103 of S. 1448, the Graham-Feinstein bill is intended to override section 815 passed September 13 by specifically authorizing what is already the case, that the CIA may use terrorist informants. We would suggest that the section 103 simply be amended to add that agency officers may do so “pursuant to guidelines or directives issued by the agency.” We have organized our discussion of the proposals before the Committee into three categories: Changes to the Foreign Intelligence Surveillance Act. Proposal to allow wiretap evidence obtained overseas in violation of Fourth Amendment standards to be introduced against Americans in US courts; and Changes to the current authorities of the Director of Central Intelligence and rules regarding sharing of information gathered on Americans with the intelligence community. I. Proposed changes to the Foreign Intelligence Surveillance Act. We have attempted to coordinate our testimony with that being presented by the Center for Democracy and Technology. Mr. Berman will provide you with detailed comments on the specific provisions, but since one of us was intimately involved in the lengthy negotiations which led to the enactment of FISA, we wanted to provide you with some general remarks relating to the structures and purposes of FISA and of the efforts to protect civil liberties while giving the government the authority it needed to conduct electronic surveillance to gather foreign intelligence. It is important to remember that FISA was a grant of authority to the government to conduct surveillance, which the Supreme Court had held was clearly within the ambit covered by the Fourth Amendment. The Court had suggested that the warrant requirements of the Fourth Amendment might be different in national security matters and Congress and the Administration worked together, with the active involvement of outside groups and scholars, over a period of several years to craft the careful compromise incorporated in FISA. At the heart of FISA was this trade. Congress would authorize electronic surveillance of foreign powers and their agents within the United States under a standard different and less stringent than required for criminal wiretaps and it would authorize the government never to tell the targets that their conversations were intercepted. In return the government accepted judicial involvement and oversight of the process (carried out in an ex parte rather than adversarial manner however) and a wall to insure that it did not use these procedures to gather information for criminal prosecutions. Proposals to alter FISA need to be understood in this context. It is not an anomaly that the government has to go back to court more often than under Title III to get authority to continue surveillance of a private person lawfully resident in the United States. Since the person will never be told of the surveillance nor have an opportunity to move to have the surveillance records purged, it is important that a judge check regularly, at least as a surveillance begins, to be sure that the government’s suspicion that the person was acting as the agent of a foreign power was correct and that the surveillance was producing foreign intelligence information while minimizing the collection of other information. We urge you to keep this basic structure in mind as you consider objections to specific provisions. We urge also that you remember the care with which FISA was enacted and maintain the same spirit of skepticism and openness as this committee considers the proposed amendments. In this connection, it is also important to remember that investigations of terrorism pose particularly difficult problems because of the intersection of First Amendment, Fourth Amendment and national security concerns. Unlike international narcotics investigations, it is important to distinguish between those engaged in criminal terrorist activity and those who may share in the religious or political beliefs of the terrorists, or even their ethnic background, without engaging in any unlawful acts. Regarding specific proposals on both FISA and changes to other statues permitting national security investigations of financial records and other information, we refer you to Mr. Berman’s testimony in addition to our comments below. Elimination of the primary purpose requirement, Administration bill sec. 153. We want to stress our concern, as spelled out by Mr. Berman, about the administration’s proposal to eviscerate the original premise of the FISA , that its procedures would only be employed when the primary purpose of the surveillance was to gather foreign intelligence. The administration’s proposal in section 153 would turn the statutory scheme on its head by allowing the use of FISA surveillance when the government’s primary purpose is to bring criminal charges against an individual, a change which we believe would violate basic Fourth Amendment guarantees. --Duration of authority to conduct surveillance and searches of non-U.S. persons under FISA. Graham –Feinstein bill, sec. 202, Administration bill, sec. 151. These sections would extend the period allowed for the conduct of FISA surveillance and searches of non-U.S. persons from 90 days and 45 days respectively, to one year for both surveillance and searches. For the reasons outlined above, the current limitations are an integral part of the balance intended to provide judicial supervision of the use of secret wiretaps and secret searches targeted against individuals, who, while not permanent residents or U.S. citizens may well be long-time legal residents and are protected by the Fourth Amendment. The statute currently provides one-year authorization for surveillance and searches of embassies and similar establishments, because the Fourth Amendment does not apply to foreign embassies. If there is some necessity, other than to avoid inconvenience, for longer authorizations for individuals, we would suggest considering an amendment that would allow extended authorizations on a second application if the government made a showing that the initial surveillance or search did in fact obtain foreign government information. In such a case, the second order could authorize electronic surveillance for an additional six months, rather than the current 90 days, and authorize physical searches for 90 days rather than the currently allowed 45 days. II. Proposal to allow wiretap evidence obtained overseas in violation of Fourth Amendment standards to be used against Americans in US courts. Administration bill, section 105. As described by the administration, section 105 of its bill would provide that United States prosecutors may use against American citizens information collected by a foreign government even if the collection would have violated the Fourth Amendment. As the administration points out, as criminal law enforcement becomes more of a global effort, such information will come to play a larger role in federal prosecutions and indeed other provisions of the administration bill would extend the extraterritorial reach of U.S. criminal law to even more crimes than are currently covered today. Section 105 would for the first time codify the extraordinary view that as the United States works to promote the rule of law throughout the world and to extend the reach of U.S. criminal law, it should leave the Bill of Rights behind. Implicit in this approach is the view that the Constitution is merely an inconvenience to law enforcement rather than acknowledging it as the best instrument yet written to govern the relations of a government to the governed. Certainly, it is not obvious how to implement the protections of the Fourth Amendment against unreasonable searches and seizures in a new era of global law enforcement. It is an issue that has just begun to be examined by the courts. While a bare majority of the Supreme Court has held that the Fourth Amendment does not apply to the search and seizure of property owned by a nonresident alien and located in a foreign country, (United States v. Verdugo-Urquidez, 494 U.S. 259) it has affirmed that the Fifth and Sixth Amendments do protect Americans overseas. Reid v. Covert, 354 U.S. 1 (1957). The question must also be considered under international human rights law, as it is quite likely that unreasonable searches and seizures that don’t meet Fourth Amendment standards also violate existing human rights treaties signed by the U.S. The question of how to implement Fourth Amendment protections for overseas searches will probably at some point require congressional action, but it is a difficult and complicated issue that cannot be adequately addressed in the context of an emergency response to last week’s terror attack. III. Changes to current law concerning sharing of information on Americans with the intelligence community. Several provisions of both bills would significantly change current statutory authorities and responsibilities for conducting terrorism investigations involving Americans or other U.S. persons inside the United States. The problem of effective coordination between such investigations and overseas intelligence activities is certainly one of the most important ones before this Committee. It is also one of the most difficult, both in terms of actually insuring effective investigations and making sure that the unintended consequences are not to repeal crucial protections for individual rights. Since the creation of the CIA in the 1947 National Security Act, there has been an attempt to distinguish between law enforcement, the collection of information on Americans and others to be used in criminal prosecutions of individuals , and foreign intelligence, the collection of information about the plans, intentions and capabilities of foreign governments and organizations. When the CIA was created, its charter specifically prohibited the agency from any “law enforcement or internal security functions” 50 U.S.C. 403-3(d)(1). As was documented in the Church committee report, it was the blurring of the distinction between law enforcement and foreign intelligence national security investigations that led to the abuses by the intelligence agencies outlined in that report. Many of the reforms intended to prevent such abuses from happening again, were explicitly predicated upon recognizing the differences between law enforcement and intelligence, they have different objectives and require different means and different rules should apply in order to protect individual liberties. The most obvious examples are the different rules for criminal wiretaps set out in Title III and for foreign intelligence wiretaps in the Foreign Intelligence Surveillance Act, as well as the two sets of Attorney General guidelines governing FBI investigations, one for General Crimes, including domestic terrorism, and a different set for Foreign Counter-Intelligence investigations. At the same time, it has always been recognized that some matters, most particularly internationally-sponsored terrorism and espionage on behalf of foreign powers implicate both law enforcement and foreign intelligence concerns. In the past few years, there has been an increasing number of situations where intelligence and law enforcement interests coincide and there are a substantial number of executive branch regulations, directives, working groups and practices that have been developed to address the myriad specific issues that are involved; for example reconciling the need for intelligence agencies to keep the identities of their human sources a secret with due process requirements that a criminal defendant be informed of the evidence against him and allowed to cross-examine his accusers. The threat of terrorism obviously requires effective and close coordination between the intelligence community and law enforcement. We welcome these proposals as the first step towards examining whether statutory changes are now needed. However, we urge the Committee to take the time to examine the issue in depth beginning with an analysis of existing rules and practices. Nothing is more central to the protection of the liberties of Americans from the abuses of the past than the distinction between law enforcement and intelligence. The current proposals would be a sea change in laws that have been on the books for 30 years. Before that is done, we urge the Committee to act slowly and deliberately. We would welcome the opportunity to sit down with you and the Judiciary Committee together to work on solutions that will ensure an effective anti-terrorism effort without sacrificing individual liberties. The specific provisions at issue include the following sections in the Department of Justice draft: Section 103, repealing the present prohibition on disclosing Title III intercepts of Americans’ conversations to the intelligence community, other than the FBI. Sections 154 and 354 , repealing the present prohibitions on sharing grand jury information and other criminal investigation information with the intelligence community, other than the FBI. The provisions in the Graham -Feinstein bill on this subject, are much narrower. However, they would also effect an important shift in current responsibilities that needs much more extensive discussion and analysis, before being acted upon. Specifically, Section 101 would shift from the Attorney General to the Director of Central Intelligence the responsibility for determining which Americans should be targeted for FISA surveillance. Section 102 of the Graham-Feinstein bill would also change the foreign intelligence definitions in the National Security Act of 1947. This provision would change the definitions in the National Security Act of 1947 so that “international terrorism” is included in the definition of “foreign intelligence” rather than “counterintelligence.” While, this may be a wise idea, it requires an extensive reading of the many and various laws and regulations which incorporate the current definitions in the Act to determine what the effect of the change would be, which we have not had an opportunity to do. Miscellaneous. Sec. 104 Temporary authority to defer reports to Congress. This seems like a good way to insure that adequate resources may be directed to the September 11 attack while also insuring that the Congress continue to receive the information required by the Intelligence Oversight Act on all intelligence activities. In this connection, we note that paragraph (c) entitled “Exception for Certain Reports” should refer to section 501 of the National Security Act (50 U.S.C.413) as well as to sections 502 and 503(50 U.S.C. secs 413a and 413b).
  • Politics and Government
    Statement by Morton H. Halperin and Kate Martin on behalf of the Center for National Security Studies
    STATEMENT BY MORTON H. HALPERIN AND KATE MARTIN ON BEHALF OF THE CENTER FOR NATIONAL SECURITY STUDIES 24 SEPTEMBER 2001 Thank you Mr. Chairman and Vice-Chairman for the opportunity to appear today on behalf of the Center for National Security Studies. The Center is a civil liberties organization, which for 30 years has worked to ensure that civil liberties and human rights are not eroded in the name of national security. The Center is guided by the conviction that our national security must and can be protected without undermining the fundamental rights of individuals guaranteed by the Bill of Rights. In its work over the years on legislation from the Foreign Intelligence Surveillance Act to the Intelligence Oversight Act, the Center has begun with the premise that both national security interests and civil liberties protections must be taken seriously and that by doing so, solutions to apparent conflicts can often be found without compromising either. We appear before you today at a time of great mourning, when it is difficult to turn our thoughts and attention from anything but our grief and trouble. And we appreciate the enormous efforts of those individuals who have put their own grief aside to concentrate on searching for survivors, comforting those who have suffered most directly and finding and holding accountable the perpetrators of these crimes. It is not too soon to begin thinking about how we can improve our ability to prevent such unspeakable events from occurring again. However, as we do so we must resolve to act in a way that protects our liberties as well as our security and which recalls the lessons of the past from times when we permitted our concerns for security to accept erosions of our liberty that we now regret. The Alien and Sedition Acts, the internment of Japanese Americans, McCarthyism, and the efforts of intelligence agencies and the FBI to disrupt the civil rights and anti-war movements were not our proudest moments. We must not repeat them or lay the seeds for future abuses. We owe it to all those innocent people who were murdered to reflect upon those basic principles and values which should inform our discussion today. What distinguishes us as a people from our fellow human beings who committed these terrible acts is our commitment to law and to individual freedom. It is a commitment to law made deliberately, with calm reflection and an opportunity for public debate. The genius of democracy is the understanding that in the noisy and seemingly inefficient marketplace of ideas, the wisest decisions will be made. And certainly there is no more important subject than how to protect both our liberty and security most especially at a time like this when both may be so at risk. The American people look to the Members of this Committee to make law as the founders of the Constitution envisaged when they set up this legislative body, after a full public debate informed by facts, analysis and the chance for reflection. In urging this committee to proceed calmly and deliberately we speak on behalf of a coalition of more than 140 organizations from all ends of the political spectrum who last week all agreed on a Statement, which reads in part: IN DEFENSE OF FREEDOM This tragedy requires all Americans to examine carefully the steps our country may now take to reduce the risk of future terrorist attacks. We need to consider proposals calmly and deliberately with a determination not to erode the liberties and freedoms that are at the core of the American way of life. We need to ensure that actions by our government uphold the principles of a democratic society, accountable government and international law, and that all decisions are taken in a manner consistent with the Constitution. We can, as we have in the past, in times of war and of peace, reconcile the requirements of security with the demands of liberty. We should resist the temptation to enact proposals in the mistaken belief that anything that may be called anti-terrorist will necessarily provide greater security. We must have faith in our democratic system and our Constitution, and in our ability to protect at the same time both the freedom and the security of all Americans I ask permission, Mr. Chairman, to submit for the record as an attachment to my statement the full statement of the InDefenseofFreedom coalition and a list of the organizational and individual signers of the statemennt. The danger of haste is not just to our civil liberties but equally to our security. We face an equal danger that in the understandable rush to do something, what is done will not be effective in making us any safer, that it will substitute for the difficult analysis and work that is needed to figure out just how to prevent such attacks in the future. This is particularly true with regard to widening surveillance of Americans, where extending the net of surveillance, rather than doing the difficult work of trying to figure out who should be targeted may well lead to information overload, where it will not be possible for the government to distinguish the important from the insignificant. We have had the administration’s proposals being considered by this committee since Wednesday. We have done our best, working with many other groups to provide the Committee with our preliminary analysis of the proposals and we have divided up the presentation with our colleagues on this panel so as to provide you with preliminary comments on the entire bill in the short time permitted for our presentations. Our most important recommendation is to urge you before acting, to hold additional hearings, to obtain the careful analyses needed in writing of what the current authorities are and what changes would be effected by these proposals, why such changes would be useful and what the risks will be. These are very technical and complicated issues, with enormous implications for both civil liberties and our security and we need to act carefully. If there are specific authorities immediately needed by the current investigators into last week’s acts, those authorities could be separated from the rest of the proposals and considered as quickly as possible along with non-controversial items. Our comments will focus on the broad national security provisions in the legislation leaving it to our colleagues to comment on the electronic surveillance, immigration, criminal justice and forfeiture provisions. However, since CNSS was intimately involved in the lengthy negotiations which led to the enactment of FISA we wanted to provide you with some general remarks relating to the structures and purposes of FISA and of the efforts to protect civil liberties while giving the government the authority it needed to conduct electronic surveillance to gather foreign intelligence. It is important to remember that FISA was a grant of authority to the government to conduct surveillance which the Supreme Court had held were clearly within the ambit covered by the Fourth Amendment. The Court had suggested that the warrant requirements of the Fourth Amendment might be different in national security matters and Congress and the Administration worked together, with the active involvement of outside groups and scholars, over a period of several years to craft the careful compromise incorporated in FISA. At the heart of FISA was this trade. Congress would authorize electronic surveillance of foreign powers and their agents within the United States under a standard different and less stringent than required for national security wiretaps and it would authorize the government never to tell the targets that their conversations were intercepted. In return the government accepted greater judicial involvement and oversight of the process (carried out in an ex parte rather than adversarial manner however) and a wall to insure that it did not use these procedures to gather information for criminal prosecutions. Proposals to alter FISA need to be understood in this context. It is not an anomaly that the government has to go back to court more often than under Title III to get authority to continue surveillance of a private person lawfully resident in the United States. Since the person will never be told of the surveillance nor have an opportunity to move to have the surveillance records purged, it is important that a judge check regularly, at least as a surveillance begins, to be sure that the government’s suspicion that the person was acting as the agent of a foreign power was correct and that the surveillance was producing foreign intelligence information while minimizing the collection of other information. We urge you to keep this basic structure in mind as you consider objections to specific provisions. We urge also that you remember the care with which FISA was enacted and maintain the same spirit of skepticism and openness as this committee considers the proposed amendments. In this connection, it is also important to remember that investigations of terrorism pose particularly difficult problems because of the intersection of First Amendment, Fourth Amendment and national security concerns. Unlike international narcotics investigations, it is important to distinguish between those engaged in criminal terrorist activity and those who may share in the religious or political beliefs of the terrorists, or even their ethnic background, without engaging in any unlawful acts. Regarding specific proposals on both FISA and changes to other statues permitting national security investigations of financial records and other information, we refer you to Mr. Berman’s testimony in addition to our comments below. Elimination of the primary purpose requirement, Administration bill sec. 153. We want to stress our concern, as spelled out by Mr. Berman, about the administration’s proposal to eviscerate the original premise of the FISA , that its procedures would only be employed when the primary purpose of the surveillance was to gather foreign intelligence. The administration’s proposal in section 153 would turn the statutory scheme on its head by allowing the use of FISA surveillance when the government’s primary purpose is to bring criminal charges against an individual, a change which we believe would violate basic Fourth Amendment guarantees. --Duration of authority to conduct surveillance and searches of non-U.S. persons under FISA. Graham –Feinstein bill, sec. 202, Administration bill, sec. 151. These sections would extend the period allowed for the conduct of FISA surveillance and searches of non-U.S. persons from 90 days and 45 days respectively, to one year for both surveillance and searches. For the reasons outlined above, the current limitations are an integral part of the balance intended to provide judicial supervision of the use of secret wiretaps and secret searches targeted against individuals, who, while not permanent residents or U.S. citizens may well be long-time legal residents and are protected by the Fourth Amendment. The statute currently provides one-year authorization for surveillance and searches of embassies and similar establishments, because the Fourth Amendment does not apply to foreign embassies. If there is some necessity, other than to avoid inconvenience, for longer authorizations for individuals, we would suggest considering an amendment that would allow extended authorizations on a second application if the government made a showing that the initial surveillance or search did in fact obtain foreign government information. In such a case, the second order could authorize electronic surveillance for an additional six months, rather than the current 90 days, and authorize physical searches for 90 days rather than the currently allowed 45 days. Let me turn then to specific comments on some of the proposals. I want to reiterate that these are only preliminary remarks. In many cases the objections which we have might be remedied by more careful drafting or my changes in the approach to accommodate civil liberties concerns. Other provisions we believe are simply not fixable. Changes to current law concerning sharing of information on Americans with the intelligence community. Several provisions of administration bill would significantly change current statutory authorities and responsibilities for conducting terrorism investigations involving Americans or other U.S. persons inside the United States. The problem of effective coordination between such investigations and overseas intelligence activities is certainly one of the most important ones before this Committee. It is also one of the most difficult, both in terms of actually insuring effective investigations and making sure that the unintended consequences are not to repeal crucial protections for individual rights. Since the creation of the CIA in the 1947 National Security Act, there has been an attempt to distinguish between law enforcement, the collection of information on Americans and others to be used in criminal prosecutions of individuals , and foreign intelligence, the collection of information about the plans, intentions and capabilities of foreign governments and organizations. When the CIA was created, its charter specifically prohibited the agency from any “law enforcement or internal security functions” 50 U.S.C. 403-3(d)(1). As was documented in the Church committee report, it was the blurring of the distinction between law enforcement and foreign intelligence national security investigations that led to the abuses by the intelligence agencies outlined in that report. Many of the reforms intended to prevent such abuses from happening again, were explicitly predicated upon recognizing the differences between law enforcement and intelligence, that they have different objectives and required different means and that different rules should apply in order to protect individual liberties. The most obvious examples are the different rules for criminal wiretaps set out in Title III and for foreign intelligence wiretaps in the Foreign Intelligence Surveillance Act, as well as the two sets of Attorney General guidelines governing FBI investigations, one for General Crimes, including domestic terrorism, and a different set for Foreign Counter-Intelligence investigations. At the same time, it has always been recognized that some matters, most particularly internationally-sponsored terrorism and espionage on behalf of foreign powers implicate both law enforcement and foreign intelligence concerns. In the past few years, there has been an increasing number of situations where intelligence and law enforcement interests coincide and there are a substantial number of executive branch regulations, directives, working groups and practices that have been developed to address the myriad specific issues that are involved; for example reconciling the need for intelligence agencies to keep the identities of their human sources a secret with due process requirements that a criminal defendant be informed of the evidence against him and allowed to cross-examine his accusers. The threat of terrorism obviously requires effective and close coordination between the intelligence community and law enforcement. We welcome these proposals as the first step towards examining whether statutory changes are now needed. However, we urge the Committee to take the time to examine the issue in depth beginning with an analysis of existing rules and practices. Nothing is more central to the protection of the liberties of Americans from the abuses of the past than the distinction between law enforcement and intelligence. The current proposals would be a sea change in laws that have been on the books for 30 years. Before that is done, we urge the Committee to act slowly and deliberately. We would welcome the opportunity to sit down with you and the administration together to work on solutions that will ensure an effective anti-terrorism effort without sacrificing individual liberties. The specific provisions at issue include the following sections in the Department of Justice draft: Section 103, repealing the present prohibition on disclosing Title III intercepts of Americans’ conversations to the intelligence community, other than the FBI. Sections 154 and 354 , repealing the present prohibitions on sharing grand jury information and other criminal investigation information with the intelligence community, other than the FBI. Section 406 on disclosure of tax returns raises similar issues. Proposal to allow wiretap evidence obtained overseas in violation of Fourth Amendment standards to be used against Americans in US courts. As described by the administration, section 105 of its bill would provide that United States prosecutors may use against American citizens information collected by a foreign government even if the collection would have violated the Fourth Amendment. As the administration points out, as criminal law enforcement becomes more of a global effort, such information will come to play a larger role in federal prosecutions and indeed other provisions of the administration bill would extend the extraterritorial reach of U.S. criminal law to even more crimes than are currently covered today. Section 105 would for the first time codify the extraordinary view that as the United States works to promote the rule of law throughout the world and to extend the reach of U.S. criminal law, it should leave the Bill of Rights behind. Implicit in this approach is the view that the Constitution is merely an inconvenience to law enforcement rather than acknowledging it as the wisest instrument yet written to govern the relations of a government to the governed. Certainly, it is not obvious how to implement the protections of the Fourth Amendment against unreasonable searches and seizures in a new era of global law enforcement. It is an issue that has just begun to be examined by the courts. While a bare majority of the Supreme Court has held that the Fourth Amendment does not apply to the search and seizure of property owned by a nonresident alien and located in a foreign country, (United States v. Verdugo-Urquidez, 494 U.S. 259) it has affirmed that the Fifth and Sixth Amendments do protect at least Americans overseas. Reid v. Covert, 354 U.S. 1 (1957). The question must also be considered under international human rights law, as it is quite likely that unreasonable searches and seizures that don’t meet Fourth Amendment standards also violate existing human rights treaties signed by the U.S. The question of how to implement Fourth Amendment protections for overseas searches will probably at some point require congressional action, but it is a difficult and complicated issue that cannot be adequately addressed in the context of an emergency response to last week’s terror attack. Duration of authority to conduct surveillance and searches of non-U.S. persons under FISA This section would extend the period allowed for the conduct of FISA surveillance and searches of non-U.S. persons from 90 days and 45 days respectively, to one year for both surveillance and searches. For the reasons outlined above, the current limitations are an integral part of the balance intended to provide judicial supervision of the use of secret wiretaps and secret searches targeted against individuals, who, while not permanent residents or U.S. citizens may well be long-time legal residents and are protected by the Fourth Amendment. The statute currently provides one-year authorization for surveillance and searches of embassies and similar establishments, because the Fourth Amendment does not apply to foreign embassies. If there is some necessity, other than to avoid inconvenience, for longer authorizations for individuals, we would suggest considering an amendment that would allow extended authorizations on a second application if the government made a showing that the initial surveillance or search did in fact obtain foreign government information. In such a case, the second order could authorize electronic surveillance for an additional six months, rather than the current 90 days, and authorize physical searches for 90 days rather than the currently allowed 45 days.
  • Human Rights
    Testimony of Morton H. Halperin and Kate Martin Before the House Judiciary Committee
    STATEMENT BY MORTON H. HALPERIN AND KATE MARTIN ON BEHALF OF THE CENTER FOR NATIONAL SECURITY STUDIES 24 SEPTEMBER 2001 Thank you Mr. Chairman and Vice-Chairman for the opportunity to appear today on behalf of the Center for National Security Studies. The Center is a civil liberties organization, which for 30 years has worked to ensure that civil liberties and human rights are not eroded in the name of national security. The Center is guided by the conviction that our national security must and can be protected without undermining the fundamental rights of individuals guaranteed by the Bill of Rights. In its work over the years on legislation from the Foreign Intelligence Surveillance Act to the Intelligence Oversight Act, the Center has begun with the premise that both national security interests and civil liberties protections must be taken seriously and that by doing so, solutions to apparent conflicts can often be found without compromising either. We appear before you today at a time of great mourning, when it is difficult to turn our thoughts and attention from anything but our grief and trouble. And we appreciate the enormous efforts of those individuals who have put their own grief aside to concentrate on searching for survivors, comforting those who have suffered most directly and finding and holding accountable the perpetrators of these crimes. It is not too soon to begin thinking about how we can improve our ability to prevent such unspeakable events from occurring again. However, as we do so we must resolve to act in a way that protects our liberties as well as our security and which recalls the lessons of the past from times when we permitted our concerns for security to accept erosions of our liberty that we now regret. The Alien and Sedition Acts, the internment of Japanese Americans, McCarthyism, and the efforts of intelligence agencies and the FBI to disrupt the civil rights and anti-war movements were not our proudest moments. We must not repeat them or lay the seeds for future abuses. We owe it to all those innocent people who were murdered to reflect upon those basic principles and values which should inform our discussion today. What distinguishes us as a people from our fellow human beings who committed these terrible acts is our commitment to law and to individual freedom. It is a commitment to law made deliberately, with calm reflection and an opportunity for public debate. The genius of democracy is the understanding that in the noisy and seemingly inefficient marketplace of ideas, the wisest decisions will be made. And certainly there is no more important subject than how to protect both our liberty and security most especially at a time like this when both may be so at risk. The American people look to the Members of this Committee to make law as the founders of the Constitution envisaged when they set up this legislative body, after a full public debate informed by facts, analysis and the chance for reflection. In urging this committee to proceed calmly and deliberately we speak on behalf of a coalition of more than 140 organizations from all ends of the political spectrum who last week all agreed on a Statement, which reads in part: IN DEFENSE OF FREEDOM This tragedy requires all Americans to examine carefully the steps our country may now take to reduce the risk of future terrorist attacks. We need to consider proposals calmly and deliberately with a determination not to erode the liberties and freedoms that are at the core of the American way of life. We need to ensure that actions by our government uphold the principles of a democratic society, accountable government and international law, and that all decisions are taken in a manner consistent with the Constitution. We can, as we have in the past, in times of war and of peace, reconcile the requirements of security with the demands of liberty. We should resist the temptation to enact proposals in the mistaken belief that anything that may be called anti-terrorist will necessarily provide greater security. We must have faith in our democratic system and our Constitution, and in our ability to protect at the same time both the freedom and the security of all Americans. I ask permission, Mr. Chairman, to submit for the record as an attachment to my statement the full statement of the InDefenseofFreedom coalition and a list of the organizational and individual signers of the statemennt. The danger of haste is not just to our civil liberties but equally to our security. We face an equal danger that in the understandable rush to do something, what is done will not be effective in making us any safer, that it will substitute for the difficult analysis and work that is needed to figure out just how to prevent such attacks in the future. This is particularly true with regard to widening surveillance of Americans, where extending the net of surveillance, rather than doing the difficult work of trying to figure out who should be targeted may well lead to information overload, where it will not be possible for the government to distinguish the important from the insignificant. We have had the administration’s proposals being considered by this committee since Wednesday. We have done our best, working with many other groups to provide the Committee with our preliminary analysis of the proposals and we have divided up the presentation with our colleagues on this panel so as to provide you with preliminary comments on the entire bill in the short time permitted for our presentations. Our most important recommendation is to urge you before acting, to hold additional hearings, to obtain the careful analyses needed in writing of what the current authorities are and what changes would be effected by these proposals, why such changes would be useful and what the risks will be. These are very technical and complicated issues, with enormous implications for both civil liberties and our security and we need to act carefully. If there are specific authorities immediately needed by the current investigators into last week’s acts, those authorities could be separated from the rest of the proposals and considered as quickly as possible along with non-controversial items. Our comments will focus on the broad national security provisions in the legislation leaving it to our colleagues to comment on the electronic surveillance, immigration, criminal justice and forfeiture provisions. However, since CNSS was intimately involved in the lengthy negotiations which led to the enactment of FISA we wanted to provide you with some general remarks relating to the structures and purposes of FISA and of the efforts to protect civil liberties while giving the government the authority it needed to conduct electronic surveillance to gather foreign intelligence. It is important to remember that FISA was a grant of authority to the government to conduct surveillance which the Supreme Court had held were clearly within the ambit covered by the Fourth Amendment. The Court had suggested that the warrant requirements of the Fourth Amendment might be different in national security matters and Congress and the Administration worked together, with the active involvement of outside groups and scholars, over a period of several years to craft the careful compromise incorporated in FISA. At the heart of FISA was this trade. Congress would authorize electronic surveillance of foreign powers and their agents within the United States under a standard different and less stringent than required for national security wiretaps and it would authorize the government never to tell the targets that their conversations were intercepted. In return the government accepted greater judicial involvement and oversight of the process (carried out in an ex parte rather than adversarial manner however) and a wall to insure that it did not use these procedures to gather information for criminal prosecutions. Proposals to alter FISA need to be understood in this context. It is not an anomaly that the government has to go back to court more often than under Title III to get authority to continue surveillance of a private person lawfully resident in the United States. Since the person will never be told of the surveillance nor have an opportunity to move to have the surveillance records purged, it is important that a judge check regularly, at least as a surveillance begins, to be sure that the government’s suspicion that the person was acting as the agent of a foreign power was correct and that the surveillance was producing foreign intelligence information while minimizing the collection of other information. We urge you to keep this basic structure in mind as you consider objections to specific provisions. We urge also that you remember the care with which FISA was enacted and maintain the same spirit of skepticism and openness as this committee considers the proposed amendments. In this connection, it is also important to remember that investigations of terrorism pose particularly difficult problems because of the intersection of First Amendment, Fourth Amendment and national security concerns. Unlike international narcotics investigations, it is important to distinguish between those engaged in criminal terrorist activity and those who may share in the religious or political beliefs of the terrorists, or even their ethnic background, without engaging in any unlawful acts. Regarding specific proposals on both FISA and changes to other statues permitting national security investigations of financial records and other information, we refer you to Mr. Berman’s testimony in addition to our comments below. Elimination of the primary purpose requirement, Administration bill sec. 153. We want to stress our concern, as spelled out by Mr. Berman, about the administration’s proposal to eviscerate the original premise of the FISA , that its procedures would only be employed when the primary purpose of the surveillance was to gather foreign intelligence. The administration’s proposal in section 153 would turn the statutory scheme on its head by allowing the use of FISA surveillance when the government’s primary purpose is to bring criminal charges against an individual, a change which we believe would violate basic Fourth Amendment guarantees. --Duration of authority to conduct surveillance and searches of non-U.S. persons under FISA. Graham –Feinstein bill, sec. 202, Administration bill, sec. 151. These sections would extend the period allowed for the conduct of FISA surveillance and searches of non-U.S. persons from 90 days and 45 days respectively, to one year for both surveillance and searches. For the reasons outlined above, the current limitations are an integral part of the balance intended to provide judicial supervision of the use of secret wiretaps and secret searches targeted against individuals, who, while not permanent residents or U.S. citizens may well be long-time legal residents and are protected by the Fourth Amendment. The statute currently provides one-year authorization for surveillance and searches of embassies and similar establishments, because the Fourth Amendment does not apply to foreign embassies. If there is some necessity, other than to avoid inconvenience, for longer authorizations for individuals, we would suggest considering an amendment that would allow extended authorizations on a second application if the government made a showing that the initial surveillance or search did in fact obtain foreign government information. In such a case, the second order could authorize electronic surveillance for an additional six months, rather than the current 90 days, and authorize physical searches for 90 days rather than the currently allowed 45 days. Let me turn then to specific comments on some of the proposals. I want to reiterate that these are only preliminary remarks. In many cases the objections which we have might be remedied by more careful drafting or my changes in the approach to accommodate civil liberties concerns. Other provisions we believe are simply not fixable. Changes to current law concerning sharing of information on Americans with the intelligence community. Several provisions of administration bill would significantly change current statutory authorities and responsibilities for conducting terrorism investigations involving Americans or other U.S. persons inside the United States. The problem of effective coordination between such investigations and overseas intelligence activities is certainly one of the most important ones before this Committee. It is also one of the most difficult, both in terms of actually insuring effective investigations and making sure that the unintended consequences are not to repeal crucial protections for individual rights. Since the creation of the CIA in the 1947 National Security Act, there has been an attempt to distinguish between law enforcement, the collection of information on Americans and others to be used in criminal prosecutions of individuals , and foreign intelligence, the collection of information about the plans, intentions and capabilities of foreign governments and organizations. When the CIA was created, its charter specifically prohibited the agency from any “law enforcement or internal security functions” 50 U.S.C. 403-3(d)(1). As was documented in the Church committee report, it was the blurring of the distinction between law enforcement and foreign intelligence national security investigations that led to the abuses by the intelligence agencies outlined in that report. Many of the reforms intended to prevent such abuses from happening again, were explicitly predicated upon recognizing the differences between law enforcement and intelligence, that they have different objectives and required different means and that different rules should apply in order to protect individual liberties. The most obvious examples are the different rules for criminal wiretaps set out in Title III and for foreign intelligence wiretaps in the Foreign Intelligence Surveillance Act, as well as the two sets of Attorney General guidelines governing FBI investigations, one for General Crimes, including domestic terrorism, and a different set for Foreign Counter-Intelligence investigations. At the same time, it has always been recognized that some matters, most particularly internationally-sponsored terrorism and espionage on behalf of foreign powers implicate both law enforcement and foreign intelligence concerns. In the past few years, there has been an increasing number of situations where intelligence and law enforcement interests coincide and there are a substantial number of executive branch regulations, directives, working groups and practices that have been developed to address the myriad specific issues that are involved; for example reconciling the need for intelligence agencies to keep the identities of their human sources a secret with due process requirements that a criminal defendant be informed of the evidence against him and allowed to cross-examine his accusers. The threat of terrorism obviously requires effective and close coordination between the intelligence community and law enforcement. We welcome these proposals as the first step towards examining whether statutory changes are now needed. However, we urge the Committee to take the time to examine the issue in depth beginning with an analysis of existing rules and practices. Nothing is more central to the protection of the liberties of Americans from the abuses of the past than the distinction between law enforcement and intelligence. The current proposals would be a sea change in laws that have been on the books for 30 years. Before that is done, we urge the Committee to act slowly and deliberately. We would welcome the opportunity to sit down with you and the administration together to work on solutions that will ensure an effective anti-terrorism effort without sacrificing individual liberties. The specific provisions at issue include the following sections in the Department of Justice draft: Section 103, repealing the present prohibition on disclosing Title III intercepts of Americans’ conversations to the intelligence community, other than the FBI. Sections 154 and 354 , repealing the present prohibitions on sharing grand jury information and other criminal investigation information with the intelligence community, other than the FBI. Section 406 on disclosure of tax returns raises similar issues. Proposal to allow wiretap evidence obtained overseas in violation of Fourth Amendment standards to be used against Americans in US courts. As described by the administration, section 105 of its bill would provide that United States prosecutors may use against American citizens information collected by a foreign government even if the collection would have violated the Fourth Amendment. As the administration points out, as criminal law enforcement becomes more of a global effort, such information will come to play a larger role in federal prosecutions and indeed other provisions of the administration bill would extend the extraterritorial reach of U.S. criminal law to even more crimes than are currently covered today. Section 105 would for the first time codify the extraordinary view that as the United States works to promote the rule of law throughout the world and to extend the reach of U.S. criminal law, it should leave the Bill of Rights behind. Implicit in this approach is the view that the Constitution is merely an inconvenience to law enforcement rather than acknowledging it as the wisest instrument yet written to govern the relations of a government to the governed. Certainly, it is not obvious how to implement the protections of the Fourth Amendment against unreasonable searches and seizures in a new era of global law enforcement. It is an issue that has just begun to be examined by the courts. While a bare majority of the Supreme Court has held that the Fourth Amendment does not apply to the search and seizure of property owned by a nonresident alien and located in a foreign country, (United States v. Verdugo-Urquidez, 494 U.S. 259) it has affirmed that the Fifth and Sixth Amendments do protect at least Americans overseas. Reid v. Covert, 354 U.S. 1 (1957). The question must also be considered under international human rights law, as it is quite likely that unreasonable searches and seizures that don’t meet Fourth Amendment standards also violate existing human rights treaties signed by the U.S. The question of how to implement Fourth Amendment protections for overseas searches will probably at some point require congressional action, but it is a difficult and complicated issue that cannot be adequately addressed in the context of an emergency response to last week’s terror attack. Duration of authority to conduct surveillance and searches of non-U.S. persons under FISA This section would extend the period allowed for the conduct of FISA surveillance and searches of non-U.S. persons from 90 days and 45 days respectively, to one year for both surveillance and searches. For the reasons outlined above, the current limitations are an integral part of the balance intended to provide judicial supervision of the use of secret wiretaps and secret searches targeted against individuals, who, while not permanent residents or U.S. citizens may well be long-time legal residents and are protected by the Fourth Amendment. The statute currently provides one-year authorization for surveillance and searches of embassies and similar establishments, because the Fourth Amendment does not apply to foreign embassies. If there is some necessity, other than to avoid inconvenience, for longer authorizations for individuals, we would suggest considering an amendment that would allow extended authorizations on a second application if the government made a showing that the initial surveillance or search did in fact obtain foreign government information. In such a case, the second order could authorize electronic surveillance for an additional six months, rather than the current 90 days, and authorize physical searches for 90 days rather than the currently allowed 45 days.
  • Intelligence
    Making Intelligence Smarter
    The need for intelligence, and for a capability within the U.S. government to collect, produce, and disseminate it, remains critical. The end of the Cold War will not usher in an age of peace and security. Nor is the need for intelligence eliminated by new sources of open information. There are still important but hard to learn facts about targets---the intentions and capabilities or rogue states and terrorists, the proliferation of unconventional weapons, the disposition of potentially hostile military forces---that can only be identified, monitored, and measured through dedicated intelligence assets. The United States will have to continue to devote significant resources to intelligence if it wants an enhanced capability. The money will be well spent if it improves the effectiveness of diplomatic and military undertakings. Good intelligence cannot guarentee good policy, but poor intelligence frequently contributes to policy failure. This is a principal finding of a report of a Task Force of former government officials, military officers, businessmen, and scholars. This report offers judgments and makes recommendations on some of the most important questions affecting the future of U.S. national security: priorities for intelligence collection, the role of economic intelligence, improving analysis and increasing its impact, the future of clandestine activities, reorganizing the intelligence community, intelligence ties with both the military and law enforcement, and congressional and public oversight.