ACLU Analysis of the 9-11 Commission's Recommendations for Intelligence Reform

To:       Interested Persons
From:   Timothy H. Edgar, legislative counsel

Re:       9-11 Commission's Recommendations for Reform of the Intelligence Community 

The Final Report of the National Commission on Terrorist Attacks Upon the United States ("9/11 Commission Report") exhaustively details the failures of the intelligence agencies, including the Federal Bureau of Investigation (FBI) and the Central Intelligence Agency (CIA), and proposes major structural changes to address those failures. 

The failure to "connect the dots" to prevent the terrorist attacks of 9/11 must rank among the worst intelligence failures in American history.  No one doubts the necessity of reorienting an intelligence community built to fight the Cold War to focus on the national security threats of the 21st Century.  The ACLU strongly favors reforming the intelligence community in a way that enhances national security, encourages openness, and protects civil liberties.

The 9/11 Commission's most sweeping proposed solution is a powerful National Intelligence Director (NID) and a National Counter-Terrorism Center (NCTC) that would centralize power over both foreign and domestic intelligence collection agencies in the White House.  The way in which the recommendation centralizes power over both foreign and domestic surveillance in the White House raises serious civil liberties concerns.  

The NID is given authority, though the NCTC, not only over what intelligence agencies - including the FBI - should collect, but also what actions they should take based on that intelligence.  The NID hires the FBI's Director of Intelligence and the chief intelligence officer of the Department of Homeland Security, one of whom will also be the NID's deputy for "homeland intelligence."  The proposed structure poses real dangers of rendering the FBI and other domestic agencies subservient to the mindset of foreign intelligence agencies.  

Putting domestic national security surveillance in the hands of a "top spy" at the White House, rather than a "top cop" at the Department of Justice, raises real risks of making sensitive domestic national security investigations a servant of the President's political or ideological goals.    

As outlined, the 9/11 Commission's recommendations would put too much power in a White House official with access to the agencies of government that spy on Americans.   The answer, however, is not to do nothing.  

Rather, the answer is to reform intelligence while incorporating safeguards that will protect civil liberties, and that will respect the special sensitivity of domestic surveillance.  This document outlines fourteen such recommendations and explains why they are vital to ensuring intelligence reform does not sacrifice civil liberties.

A New Intelligence Chief Must Be Accountable, Not Political

Intelligence chief should be independent and should not be a White House official.  In a democratic society, domestic surveillance must serve the goals of preventing terrorism and other serious crime, not the political goals of the party in power.  The temptation to use the intelligence community to further a political agenda is ever-present.  

The Commission's recommendations place effective control over the intelligence community - including parts of the FBI, Department of Homeland Security, and other agencies that exercise domestic surveillance powers - in the Executive Office of the President (the White House).  The proposal seriously increases the risk of spying for political ends. 

As proposed by the Commission, the NID's powers would include:

  • The power to submit a unified budget for national intelligence, including for domestic surveillance programs,  
  • The power to approve and submit nominations to the president for the chiefs of all the composite intelligence agencies, including the FBI's Director of Intelligence and the principal intelligence official at the Department of Homeland Security.  
  • The power to set personnel policies to establish standards for education and training, including within domestic agencies.  
  • The DCI's current authorities as head of the intelligence community, including the power under the USA PATRIOT Act to set "requirements" for FBI wiretaps and other intelligence surveillance within the United States.

The NID would also replace the DCI as the principal adviser to the President on intelligence matters affecting the national security.  The NID would be located in the Executive Office of the President, but would (under the Commission's proposal) be subject to Senate confirmation.  

The NID would oversee a number of national intelligence centers, housed in disparate agencies, assigned to track particular national security concerns like counter-proliferation, narco-trafficking or relations with China.  

The NID authority would also appoint of three deputy NIDs for foreign intelligence, military intelligence, and homeland intelligence:

  • The Director of the CIA, who would also serve as the deputy NID for foreign intelligence, 
  • The Undersecretary of Defense for Intelligence, who would also serve as the deputy NID for military intelligence, and 
  • The deputy NID for homeland intelligence, who would either be the FBI's Director of Intelligence, or the Director of the Department of Homeland Security's infrastructure and intelligence office.

Within the Executive Office of the President, the NID would take the reins of a powerful new National Counter-Terrorism Center (NCTC), which would take over the terrorism intelligence analysis responsibilities of the Terrorism Threat Integration Center (currently run by the DCI).  The NCTC would also have the explicit power to "task" collection for intelligence agencies and to plan intelligence operations.

The proposed structure centralizes too much power over intelligence in the White House, and risks a re-run of the abuses that led to Watergate.  The last major reforms of the intelligence community were put in place in the 1970's, in the wake of Watergate, following the revelations of the special Congressional committee led by Senator Frank Church.  The Watergate break-in, and President Nixon's use of the CIA to cover up an investigation of the break-in, led to revelations of Nixon's abuse of intelligence powers to spy on his political opponents and ultimately forced Nixon's resignation.

The Church Committee's exhaustive post-Watergate investigation found that the problems went far beyond President Nixon.  The Committee found that the intelligence community had been an active participant in highly charge political battles involving the civil rights movement and the Vietnam War.  The FBI, CIA, Department of Defense and other intelligence agencies had been involved in widespread spying on ordinary Americans - and illegal covert operations.  Most famously, the Church Committee detailed the FBI's wiretapping of Martin Luther King, Jr., and a covert operation, personally directed by FBI Director J. Edgar Hoover, to use derogatory information derived from those wiretaps to destroy King as a national civil rights leader.

The Church Committee's final report led to important reforms designed in part to prevent the intelligence community from being misused to serve the political or ideological interests of the incumbent Administration.  These reforms included, among other things, the adoption of Attorney General guidelines for the FBI's national security and criminal investigations, enforcement of the limits on the CIA's involvement in domestic spying, and internal controls on the National Security Agency's monitoring of the electronic communications of United States persons.  

These reforms of the intelligence community were vitally necessary to ensure that intelligence activities in a democratic society remain under the rule of law.  They remain vitally important today, as the public and political pressure to prevent terrorist attacks poses the danger of encouraging intelligence agents to violate fundamental civil liberties and human rights.  

The 9/11 Commission should be applauded for avoiding the easy - and wrong - scapegoat of civil liberties and human rights protections for intelligence failures.  According to the Commission, pre 9/11 intelligence failures were, largely, failures of analysis and information-sharing.  These failures were not the result of legal restrictions that are designed to protect civil liberties, but as a result of a culture and bureaucracy that horded information.  

However, the placement of the intelligence community under effective White House control could seriously undermine these reforms and politicize intelligence activities.  These new institutions, if they are established, should be accountable to the President, but they should not be servants of the President's political or ideological agenda.

Other proposals to create a new official to head the intelligence community do not make that person a White House official.  Members of the House and Senate intelligence committees have introduced legislation to create a "Director of National Intelligence."  These include S. 190, the "Intelligence Community Leadership Act of 2003," sponsored by Senator Feinstein (D-CA), S. 1520, the "9-11 Memorial Intelligence Reform Act," sponsored by Senators Graham (D-FL), Feinstein (D-CA) and Rockefeller (D-WV), and H.R. 4140, the "Intelligence Transformation Act," sponsored by Rep. Jane Harman.  These bills place the new intelligence director in an independent office, not the White House, and they do not create a Counter-Terrorism Center that puts an intelligence official effectively in control of domestic surveillance.

Rep. Porter Goss (R-FL), chair of the House Permanent Select Committee on Intelligence, has introduced as a different intelligence reorganization bill, H.R. 4584, the "Directing Community Integration Act."  The Goss bill rejects a new intelligence director and instead enhances the powers of the DCI over community-wide responsibilities, including domestic collection of intelligence while leaving the DCI as the head of the CIA.  The Goss bill is, in some respects, even worse than the Commission's proposal for an NID, because it contemplates much greater involvement of the DCI - the head of a foreign intelligence agency - in domestic intelligence matters.  The Goss bill would even go so far as to render toothless the current prohibition on CIA involvement in domestic activities by amending it to bar "police, subpoena, or law enforcement powers within the United States, except as otherwise permitted by law or as directed by the President." [1]  

The person who is charged with overseeing the activities of the intelligence community - the fifteen agencies across the government designed to ensure policymakers have access to accurate, timely information about threats to the nation's security - should not be a White House or Cabinet official who answers to the President's political and ideological agenda.

Recommendation #1:  The National Intelligence Director (NID) should not be a Cabinet or White House official and the National Counter-Terrorism Center (NCTC) should not placed in the Executive Office of the President, nor should stronger community-wide powers be given to an official who continues to head the CIA.  A new head of the intelligence community, if one is created, should head an independent Office of the Director of National Intelligence.  

Intelligence chief should be independent and subject to Congressional oversight.  The placement of the National Intelligence Director in the White House could also frustrate Congressional oversight.  White House officials have long received, on separation of powers grounds, far less scrutiny from Congress than agency heads and other Executive Branch officials.  White House officials are not usually subject to Senate confirmation and do not usually testify before Congress on matters of policy.  Executive privilege may be claimed as a shield for conversations between the President and his advisors from both Congressional and judicial inquiries. 

While the 9/11 Commission recommends that the NID should be subject to Senate confirmation, the President might object to this recommendation, particularly if the NID remains in the White House.  The President's national security advisor - who, like the NID, is not the head of an agency but is charged with coordinating the work of other agencies - is not subject to Senate confirmation.  The controversy over whether Condoleezza Rice, President Bush's national security advisor, could or should testify publicly before the 9/11 Commission is an excellent example of how the prerogatives of the President with respect to White House advisors can complicate oversight by Congress and other investigative bodies.

Congress must ensure that the National Intelligence Director is appointed by and with the advise and consent of the Senate, and that the NID will regularly testify before Congress.  The Office of the NID and the NCTC must also be answerable to Congress.  Congress must make clear that key officials will be asked to testify and that the NID and the NCTC are expected to provide answers to questions, relevant documents, and cooperate with Congressional inquiries.

The Commission recommends that the Director of the CIA should serve a fixed term, like the Director of the FBI, that does not coincide with the President's term.  The FBI Director's tenure provides some insulation from partisan politics, and helps protect the FBI's image as a servant of the American people, not of the party in power.  Insulating the CIA further from political pressure is a welcome step.

However, ensuring a powerful intelligence chief - who will wield substantial authority over the CIA, FBI and other agencies - is independent and respected across party lines and ideological divides is equally vital.  Of course, the President should - as with the FBI Director and other nonpartisan officials - retain ultimate authority, but the National Intelligence Director should not be a part of the President's political "team."

Recommendation #2:  The National Intelligence Director must be subject to Senate confirmation and Congressional oversight, and should, like the Director of the CIA, have a fixed term that does not coincide with that of the President.

Make Sure a "Top Cop," Not a "Top Spy," Is in Charge of Surveillance Operations within the United States

FBI intelligence director should remain answerable to FBI Director, not to head of the intelligence community.  The United States has - historically and to the present day - entrusted the domestic collection of information about spies, terrorists, and other national security threats to federal and state law enforcement, with the FBI playing the most important role.  The reason is simple: Americans do not believe the government should investigate you if you are not involved in a crime - if your activities, however unpopular, are not illegal.  

For this reason, the CIA - a pure spy agency with no law enforcement functions - has been barred from domestic surveillance ever since it was created by the National Security Act in 1947.  President Truman - a strong opponent of Communism and a hawk on security - shared the concerns of many Americans about the CIA's establishment as a peacetime agency.  Truman believed that a permanent secret spy agency could, if allowed to operate on American soil, use espionage techniques - including blackmail, extortion and disinformation - against American citizens who were critical of government policy or the incumbent administration, but had broken no law.  With Truman's support, the National Security Act, sometimes described as the CIA's "charter," contains a prohibition - which stands today - on the CIA's exercising any "police, subpoena, or law enforcement powers or internal security functions." [2]

Truman's concerns were not just with bureaucratic turf - whether the FBI or the CIA was the lead agency in collecting information about national security threats within the United States.  Truman believed that the domestic collection of information about national security threats should generally be handled as a law enforcement matter.  Indeed, Truman often clashed with FBI Director Hoover over whether the FBI had any business using break-ins, illegal wiretaps, and other spy techniques, at one point saying Hoover's advocacy of such methods risked transforming the FBI into the equivalent of the Gestapo. [3]   Truman did not just want to prevent the CIA itself from operating on American soil - he wanted to ensure that a CIA-style agency did not become dominant in domestic collection of intelligence about national security threats.

The "tools" of foreign intelligence agents include break-ins (also called "black bag jobs"), searches and surveillance outside the oversight of a traditional warrant process that requires probable cause of criminal activity, infiltration and spying on lawful political activity, and "dirty tricks" including extortion, bribery and blackmail.  These spy techniques operate - and are designed to operate - outside the normal laws of any given society and its system of checks and balances.  

The American system of government, with its high respect for the autonomy of the individual, simply cannot tolerate the use of many such techniques domestically, on its own citizens or residents.  While the use of intelligence techniques in foreign countries must also be subject to controls, the operations of a democratic government that spies on the very citizens from which it derives its legitimacy poses special concerns for civil liberties.  Secret domestic surveillance and operations directed at political, religious or ideological groups can, if they are not cabined by a focus on individuals and organizations involved in serious criminal activities, easily be misused to serve the interests of the party in power against its political opponents and critics.

The 9/11 Commission proposes that the NID hires both the FBI's Director of Intelligence and the intelligence chief of the Department of Homeland Security, either of whom may serve as the deputy NID for homeland intelligence.  This proposal is very problematic.  The Commission proposal puts the FBI's intelligence capabilities in the hands of a super-spy who could involve in domestic spying foreign intelligence agencies that use foreign intelligence agency methods - such as break-ins, warrantless surveillance, or covert operations.

While a NID could play a role in coordinating the activities of the Intelligence Community, the NID should not be given, as the Commission's proposal currently contemplates, what amounts to control over targets of intelligence collection within the United States.  That should remain the responsibility of the FBI Director, under the supervision of the Attorney General.

Recommendation #3:  To ensure the FBI retains control of domestic surveillance operations, the head of the FBI's intelligence operations must report to the FBI Director and the Attorney General, not to the National Intelligence Director or another intelligence official.

Domestic surveillance guidelines must bar political spying.  The FBI's own mistakes and missteps show the dangers of a powerful government agency that uses its investigating authority without regard to whether the subjects of its investigations are involved in criminal activities.  To a large degree, these abuses were the result of the FBI's unique lack of accountability to the courts, Congress and even the Attorney General under the direction of FBI Director J. Edgar Hoover.  

Some will argue that the record of Hoover's FBI proves that entrusting the domestic intelligence mission to a law enforcement agency like the FBI is no guarantee of respect for civil liberties.  They are right that any government agency charged with the collection of intelligence about national security threats may (and, inevitably, will) abuse its powers.  They are wrong in arguing that the risk of abuse is no greater when the agency's intelligence mission is seen as a function altogether different than its law enforcement investigations and one that effectively operates outside the constraints of an agency that looks as specific cases of individuals and organizations involved in serious criminal behavior.

Today, as a result of Church Committee reforms, the FBI operates under both internal and external controls that constrain its criminal and national security investigations.  These controls are designed to ensure that its intrusive intelligence-gathering and criminal surveillance powers are directed at organizations involved in criminal activities and at the investigation of foreign agents and not at lawful political, religious and other First Amendment activities.  

For criminal investigations of organized crime or domestic terrorism, Attorney General guidelines restrict the use of most surveillance techniques - such as tracking mail, following suspects, and interviewing witnesses - to situations where there is at least some indication of criminal activity.  These guidelines were weakened, following September 11, to allow FBI agents to visit, on a clandestine basis, political and religious meetings that are "open to the public" without any such indication, but most other investigative techniques do require at least some indication of crime.  In criminal investigations, of course, the Fourth Amendment requires probable cause and a judicial warrant for a physical search or electronic eavesdropping of the content of private communications.

National security investigations are governed by separate guidelines, important parts of which are secret.  The guidelines do not require probable cause of crime but are, in theory, designed to restrict national security investigations to circumstances in which there is some indication of hostile activity by an agent of a foreign power - such as a foreign government or international terrorist organization.  The most intrusive national security investigations - those that involve physical searches or electronic eavesdropping - must also at least "involve" some possible criminal activity when the subject of the investigation is a United States citizen or permanent resident, although this falls far short of the constitutional standard of criminal probable cause.

Investigative guidelines, and the law enforcement and case-orientation of the Bureau, are vitally important to preserving civil liberties.  The government argues that a number of highly intrusive intelligence gathering techniques - including collecting files on individuals and groups, physical surveillance in public places, and tracking the sender and recipient of mail, telephone and Internet communications - are not constitutional "searches" subject to the Fourth Amendment's probable cause standards.  As a result, for investigations using such techniques, it is only the guidelines and case-oriented structure of the investigating agency that protects against widespread spying on lawful political and religious activities.

For those intrusive techniques that the government concedes are searches - including electronic eavesdropping of the content of communications and searches of a person's home or office - the Fourth Amendment and federal statutes plainly require court approval based on probable cause.  However, the Fourth Amendment's principal remedy, the exclusionary rule, does nothing to hinder illegal searches and wiretaps if the government does not plan to use the information in a prosecution or otherwise in court.

Of course, the FBI has been given many - in the minds of many Americans, too many - new powers by the USA PATRIOT Act and by the loosening of its investigative guidelines.  Still, while the FBI's powers in national security and intelligence investigations have dramatically increased, the FBI still does not view itself as an agency concerned with spying on law-abiding Americans, and has, to a significant extent, institutionalized and learned from its past mistakes.  

Even before 9/11, post-Watergate controls and reforms have on occasion proven inadequate to prevent inappropriate FBI spying.  Perhaps the best example is the wide-ranging investigation of the Committee in Solidarity with the People of El Salvador (CISPES), a group opposed to President Reagan's Central America policy during the 1980's.  Nevertheless, in these instances, the FBI spying has been almost universally rejected.  FBI investigations that appear to target organizations or individuals because of their political or religious beliefs, instead of their criminal conduct, are seen as illegitimate.

Critics of placing the FBI in charge of domestic national security surveillance argue that the case-oriented mindset of a law enforcement agency cannot be reconciled with quality intelligence analysis.  While the FBI concerns itself with gather information of relevance to particular cases, they argue, intelligence analysts must be looking more broadly to see how specific data fits into the "big picture" of a national security threat.

This critique sweeps too broadly because it fails to recognize the difference between two very different kinds of cases.  The FBI not only investigates particular crimes - generally, crimes that have already occurred and must be "solved" - it also opens "enterprise" investigations of organized crime and terrorism.  Enterprise investigations put an entire criminal organization, such as the Mafia, a major drug gang, or a terrorist organization such as Al Qaeda or Hamas, under investigation.  FBI investigators are not limited to the investigation of specific crimes committed by the organization, but are instructed to gather intelligence information and analyze it to find out the "big picture" of how the organization works to prevent future crimes. 

For example, in investigating a domestic funding network for Al Qaeda as a possible criminal enterprise, the FBI is not limited to investigating whether the organization was involved in funding specific terrorist bombings or other attacks, such as the 1998 embassy bombings in Africa, the 1999 bombing of the U.S.S. Cole, or the September 11 attacks.  Rather, the FBI has authority to investigate the organization as an enterprise, and to fit together bits of information that help prevent future terrorist attacks, not just gather information about past crimes.  The FBI's failures in analyzing information about Al Qaeda's domestic activities are not a result of flaws in the basic concept of an enterprise investigation; rather, they appear to be the result of a combination of other failures that must be addressed on their own terms.

Of course, even an enterprise investigation has - and should have - limits.  The rules for enterprise investigations reflect the reality that such investigations pose greater risks for civil liberties because they are not linked to particular crimes.  Under the rules, an enterprise investigation of a specific group suspected of aiding Al Qaeda cannot - and should not - morph into a broad intelligence gathering exercise directed at mosques or Islamic community centers where there is no indication of any criminal activity

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