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Site Map REPORT OF THE JOINT INQUIRY INTO THE TERRORIST ATTACKS OF SEPTEMBER 11, 2001 |
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A third approach might be to move the FBI's CI and CT functions; to the new Department of Homeland Security, thereby adding a domestic collection element to that organization's soon- to-be-created Undersecretariat for Information Analysis and Infrastructure Protection. This might allow the collection components to take advantage of working within a "national security" culture rather than a "law enforcement" culture, and would give them a broader base of institutional support than they might enjoy as a freestanding "MI-5" within the Intelligence Community. Many Americans, however, might be uncomfortable with combining these functions with the already sweeping security responsibilities of the new Department. Whatever the best answer turns out to be, I believe some kind of radical reform of the FBI is in order -- indeed, is long overdue -- and should be a major item on the "intelligence reform" agenda for the 108th Congress. The FBI has, unfortunately, shown that in its present form, it is not capable of successfully performing domestic intelligence collection and analysis against modern CI and CT challenges. The Bush Administration and the 108th Congress should make it a high priority to resolve these issues, and to put the domestic components of our Intelligence Community on a footing that will enable them to meet the challenges of the 21st century. V. Human Intelligence In an unclassified report such as this one, it is hard to provide much supporting information for a critique of human intelligence (HUMINT) operations against terrorist groups prior to September 11. Suffice it to say, however, that the status quo of Intelligence Community approaches in this regard was tested against the Al-Qa'ida threat and found wanting. 123 CIA officials have publicly boasted that they had operatives in Afghanistan before September 11, [159] but careful observers should not confuse the periodic infiltration of operatives for brief liaison meetings with friendly warlords for a real HUMINT or paramilitary presence. Such unfounded braggadocio aside, the distinguishing feature of anti-terrorist HUMINT three years after the embassy bombings and the DCI's "declaration of war" against Al-Qa'ida was our lack of HUMINT penetration of the organization, especially of its central operations. It is well known in the intelligence world that "[c]landestine handling of agents or other covert activity is usually assigned to intelligence officers under diplomatic cover" [160] -that is, to officials operating out of embassies who, while they face greater risks than the average diplomat, are in the final analysis protected from arrest by diplomatic immunity. The CIA's HUMINT collection service, the Directorate of Operations (DO), admits to occasionally using non-official cover (NOC) officers, [161] but such assignments are the rare exception rather than the rule, and _______________ 159 See, e.g., Drogin, supra (quoting CIA Deputy Director for Operations Jim Pavitt that "we were there before the 11th of September"). 160 FBI Section Chief Timothy D. Bereznay, statement for the record submitted to the House International Relations Committee (May 11, 2000), at 2. 161 Both DCI Tenet, during his confirmation hearing, and his predecessor John Deutch have discussed CIA policy with respect to the employment of NOCs posing as members of certain professions. As Deutch explained it, the CIA has a policy of generally avoiding "having a U .S. intelligence asset use U.S. journalistic cover ." John Deutch, testimony before SSCI hearing (February 22, 124 _______________ 1996), available from Federal News Service transcripts (February 22, 1996); see also George Tenet, testimony before SSCI hearing (May 6,1997), available from Federal News Service transcripts (May 6, 1997). 125 This balance between diplomatic cover officers and NOCs may have served the CIA tolerably well during the Cold War -though HUMINT was never regarded as our strong suit against the Soviets - but it is patently unsuited to HUMINT collection against nontraditional threats such as terrorism or proliferation targets. As former DCI James Woolsey has observed, "[o]ne needs to use non- official cover officers to recruit spies inside terrorist organizations," because "not too many [Al- Qa'ida] supporters and friends attend embassy cocktail parties."162 Especially against Al-Qa'ida - which is known actively to seek out Islamic converts such as Jose Padilla, John Walker Lindh, and Richard Reid, who have "legitimate" papers and can travel and live in the West without raising much suspicion -it is hard to understand why the CIA was not more interested in, and successful at, NOC-based HUMINT operations against AI-Qa'ida before September 11. The CIA has relied too much, in my view, upon traditional embassy-based HUMINT, and not enough upon NOCs. It has also focused too heavily upon HUMINT operations conducted in collaboration with foreign intelligence services. There is nothing intrinsically wrong with liaison service work, and such collaboration has produced some of the greatest HUMINT successes we have had in the war against terrorism. Liaison operations are also by far the easiest sort of HUMINT for CIA officers to conduct against terrorist groups when those officers are operating under diplomatic cover. (Visiting one's liaison counterpart at his office is rather less hazardous than actually developing sources in the souk, and "State Department" employees are unlikely to be invited to many radical Islamist meetings anyway.) Liaison work, however, is inherently conducted only on the basis of, and limited by the extent of, the cooperative service's own interests -rather than those of the CIA or the United States. They are _______________ 162 James Woolsey, testimony before Senate Judiciary Committee Subcommittee (September 3, 1998), available from Federal News Service transcripts (September 3, 1998). 126 also of necessarily limited utility in countries in which the host government is, to some extent at least, part of the problem. In the final equation, there is no substitute for mounting our own extra-embassy, non-official cover HUMINT operations. It is far past time for the CIA to recognize the sharp limitations of its traditional Cold War approach to HUMINT, and to begin serious development -in a large-scale, programmatic way, rather than simply on an ad hoc or "volunteer" basis -of nontraditional HUMINT "platforms" and the use of NOCs. A greater emphasis upon non-Caucasian NOC officers would also probably pay dividends out of proportion to the investments necessary to recruit and train such individuals. Indeed, it is perhaps in getting undercover agents out (and at risk) amongst the "target" population that the HUMINT operators of the DO perhaps have the most to learn from their law enforcement counterparts. If the Drug Enforcement Administration can put actual, salaried American officers undercover in clannish narcotrafficking organizations in foreign countries, surely the CIA can learn to penetrate aggressively proselytizing Islamic fundamentalist organizations. We depend upon them to do just that. As a final note, it is worth pointing out that I do not believe the language in the Joint Inquiry's "Recommendations" concerning the importance of enhancing "the recruitment of a more ethnically and culturally diverse workforce with the intelligence skills and expertise needed for success in counterterrorism efforts" is meant to represent our collective endorsement of workplace diversity for its own sake. Rather, the Committees believe that the challenges of both understanding and penetrating international terrorist organizations and the milieu in which they move require that the Intelligence Community seek to develop larger numbers of native- speaking translators, culturally-attuned analysts, and HUMINT operators -especially NOC officers - ethnically and culturally indistinguishable from their collection targets. In legal terms, 127 certain specific target-related types of ethnic and cultural diversity should be sought as a bona fide occupational qualification. Without a fundamental shift in the CIA's operational paradigm, diversity for diversity's sake alone will do little to improve the CIA's ability to execute its mission. VI. Covert Action A. Clarity and Support As with HUMINT operations, there is obviously little one can say here about the lessons that should be learned from the CIA's clearly mixed record of success in offensive operations against Al-Qa'ida before September 11, 2001. [163] One important lesson, however, was suggested by former National Security Advisor Sandy Berger in his testimony before our Joint Inquiry. In giving covert action instructions to the CIA, he said it is incumbent upon the President to convey _______________ 163 DC1 Tenet confirmed the existence of CIA offensive operations against Al-Qa'ida in public testimony before the Joint Inquiry .See George Tenet, testimony before joint SSCI/HPSCI hearing (October 17, 2002), available from FDCH Political Transcripts (October 17, 2002) (declining to discuss specific legal authorities received by CIA to conduct operations before September 11, 2001 but describing "offensive operations" and a "plan of attack" both "inside Afghanistan and globally" to "render" Al-Qa'ida terrorists [capture and deliver them to appropriate authorities], "disrupt" Usama bin Laden's terrorist infrastructure and finances, and otherwise "degrade his ability to engage in terrorism"). 128 legal authorities -the limits spelled out in a covert action "finding" or Memorandum of Notification (MON) as to what agents are permitted to do in pursuit of the stated aim -- with absolute clarity.164 Unfortunately, as the committees have heard repeatedly from knowledgeable participants, Berger's injunction was honored more in the breach than in the observance by the very Administration he served. Particularly given the unpleasant history of covert action scandals that have affected the CIA, one should not be surprised to find that - ironically, perhaps -the covert action infrastructure is a relatively cautious one. Intelligence officers will often, and with good reason, hesitate to take operational risks or to push aggressively to accomplish their missions if they are operating under ambiguous or convoluted legal authorities and always suspect that they may be prosecuted or hauled before a hostile inquiry for any actual or perceived missteps. This admonition clearly applies to both Executive Branch and Congressional leaders: whatever the merits or demerits of the policies they are asked by the President to execute, our intelligence operators risking their lives in the field need to know that their own government will make clear to them what their job is and protect them when they do it. Neither assurance, unfortunately, could be had by the DO's covert action staffs working against terrorism in the late 1990s. As far as the anti-terrorism efforts of the Intelligence Community since September 11 are _______________ 164 Sandy Berger, testimony before joint SSCI/HPSCI hearing (September 18, 2002), available from FDCH Political Transcripts (September 19, 2002) (remarking with respect to covert action authorities that "We certainly would have to have clarity from the President of the United States ..."). 129 concerned, I believe it is important that the record reflect that we on the oversight committees of Congress have been kept apprised of the new approaches and initiatives adopted by the President as part of our country's war on terrorism. As any perusal of our closed hearing records at the SSCI will show, we have been uniformly supportive. These are challenging times, and they have in some respects demanded unprecedented responses. In the past, Congress has sometimes contributed to cultural and legal problems of risk-aversion within the Intelligence Community by conducting high-profile investigations into intelligence activities. Congress can and must continue to assert its prerogatives in undertaking careful oversight of IC activities and conducting investigations wherever necessary. Historians of the United States' war on terrorism, however -- and, above all, our intelligence operatives currently in the field -should be aware that our committee Members have forcefully supported the IC's current counterterrorist campaign. Far too much is already publicly known about this campaign, but if and when the full story is actually told, it must be made clear that what has occurred has been undertaken with the knowledge and support of the oversight organs of our national legislature. 2. Oversight Challenges Perhaps in part because of frustrations with the existing covert action system, it has been widely reported that the Defense Department is interested in augmenting a quasi-covert action capability of its own, based upon its highly competent cadre of special operations forces (SOF). [165] If this parallel system works, I wish it well: the covert action side of the war on terrorism could certainly use the manpower and expertise. It is worth emphasizing, however, that a greater DOD involvement in the world of covert action could present oversight challenges _______________ 165 See, e,g , Schmidt & Ricks, supra. 130 for Congress. The oversight mechanism and reporting requirements for covert action contained in 50 U.S.C. §§ 413b, of course, operate in a functional basis rather than an agency-specific one. The law does not require that only the CIA conduct covert action: rather, the President can designate any government entity for this purpose if he sees fit. DOD forces conducting covert action-type operations against Al-Qa'ida, however, may be harder for Congress to oversee if the Defense Department decides to treat attacks on Al-Qa'ida and affiliated terrorist networks as part of its "wartime" operational responsibilities rather than as part of covert action policy. Like the rules in Executive Order 12,333 regarding "assassination," some might argue that "covert action" is a conceptual category more appropriate to times of "peace" in which special restrictions and oversight rules are crafted to oversee the government's employment of certain somewhat sinister policy tools. By this argument, operational conduct in attacking "enemy" forces in time of "war" is something else entirely -and is not something into which Congress has traditionally enjoyed any meaningful visibility, let alone had "oversight" responsibilities. In truth, such questions are legal matters of first impression, because the federal laws governing covert action were not yet in place the last time we faced a bitter war of indefinite duration against a global enemy. How exactly the line is drawn between "covert action" oversight and "operational" opacity, therefore, remains to be determined. The 108th Congress should watch these issues carefully, for the oversight committee -- are the only real "check" our constitutional scheme provides in these areas. We should take care that any alleged covert action "exception" does not swallow its rule. 131 VII. Accountability The story of September 11 is one replete with failures: to share information, to coordinate with other agencies; to understand the law, follow existing rules and procedures, and use available legal authorities in order to accomplish vital goals; to devote or redirect sufficient resources and personnel to counterterrorism work; to communicate priorities clearly and effectively to IC components; to take seriously the crucial work of strategic counterterrorism analysis; and most importantly, to rise above parochial bureaucratic interests in the name of protecting the American people from terrorist attack. One of the mandates of this inquiry has been to "lay a basis for assessing the accountability of institutions and officials of government"166 by identifying any problems and failings within the Intelligence Community that helped leave us unprepared for the terrorist attacks. The Joint Inquiry's recommendations call for the agency Inspectors General to "review the factual findings and the record of this Inquiry and conduct investigations and reviews as necessary to determine whether and to what extent Intelligence Community personnel at all levels should be held accountable for any omission, commission, or failure to meet professional standards in regard to the identification, prevention, or disruption of terrorist attacks, including the events of September 11, 2001." _______________ 166 SSCI & HPSCI, "Initial Scope of Joint Inquiry" (June 5, 2002), from the preamble. 132 The DCI has declared us to be at "war" against Al-Qa'ida since 1998, and as the President has declared, we have really been so since at least September 11. Some have suggested that this means that we should postpone holding anyone accountable within the Intelligence Community until this war is over and the threat recedes. I respectfully disagree. The threat we face today is, unfortunately, in no danger of subsiding any time soon, and the problems our Intelligence Community faces are not ones wisely left unaddressed any longer. Indeed, it is precisely because we face a grave and ongoing threat that we must begin reforming the Community immediately. Otherwise we will simply be unable to meet this threat. The metaphor of "war" is instructive in this regard, inasmuch as wise generals should not -and historically do not -hesitate to hold their subordinates accountable while the battle still rages, disciplining or cashiering those who fail to do their duty. So also do wise Presidents dispose of their faltering generals under fire. As the fabric of military law makes clear, failures in wartime are traditionally considered less excusable, and are punished more severely, than failures in times of peace. If we are indeed at war, accountability is more important now than ever, for it is through insisting upon accountability that life-threatening problems may best be fixed. Nor should we forget that accountability has two sides. It is also a core responsibility of all good leaders to reward those who perform well, and promote them to positions of ever greater responsibility. In urging the Intelligence Community to hold its employees accountable, the IC must therefore both discipline those who fall down on the job and reward those who have excelled. For officials charged with protecting our national security and keeping Americans safe from attack, professional advancement should proceed by Darwinian selection. For these reasons, it is disappointing to me that despite the Joint Inquiry's explicit 133 mandate to "lay a basis for assessing the accountability of institutions and officials of government" and despite its extensive findings documenting recurring and widespread Community shortcomings in the months and years leading up to September 11, the Joint Inquiry has not seen fit to identify any of the persons whose decisions left us so unprepared. Careful readers of the Joint Inquiry's findings will be left with little doubt as to the identities of at least some of the officials responsible. It is unfortunate, however, that the Joint Inquiry has shied away from its oversight responsibilities in refusing to provide more of the accountability to which we ask the IC to subject itself. I thus urge President Bush carefully to examine the Joint Inquiry's findings in order to determine the extent to which he has been well served by his "generals" in the Intelligence Community. Some have argued that we should avoid this issue of accountability lest we encourage the development of a worse climate of intra- community risk-aversion and legal timorousness than the Committees have already seen during the 1990s. I do not believe this is the case. To begin with, the failings leading up to September 11 were not ones of impetuousness, the punishment for which might indeed discourage the risk-taking inherent in and necessary to good intelligence work. The failures of September 11 were generally ones not of reckless commission but rather of nervous omission. They were failures to take the necessary steps to rise above petty parochial interests and concerns in the service of the common good. These are not failings that will be exacerbated by accountability. Quite the contrary. And, more importantly, it is clear that without real accountability, these many problems will simply remain unaddressed -leaving us terribly and needlessly vulnerable in the future. By no means do I advocate a crusade to hold low-level employees accountable for the failures of September 11. There clearly were some individual failings, but for the most part our 134 hard-working and dedicated intelligence professionals did very well, given the limited tools and resources they received and the constricting institutional culture and policy guidance they faced. The IC's rank-and-file deserve no discredit for resource decisions and for creating these policies. Ultimately, as the findings of the Joint Inquiry make clear -though they carefully stop short of saying so explicitly -accountability must begin with those whose job it was to steer the IC and its constituent agencies through these shoals, and to ensure that all of them cooperated to the best of their abilities in protecting our national security. Responsibility must lie with the leaders who took so little action for so long, to address problems so well known. In this context, we must not be afraid publicly to name names, and I do so here. The U.S. Intelligence Community would have been far better prepared for September 11 but for the failure of successive agency leaders to work wholeheartedly to overcome the institutional and cultural obstacles to inter-agency cooperation and coordination that bedeviled counterterrorism efforts before the attacks: DCls George Tenet and John Deutch, FBI Director Louis Freeh, and NSA Directors Michael Hayden and Kenneth Minnihan, and former NSA Deputy Director Barbara McNamara. These individuals are not responsible for the disaster of September 11, of course, for that infamy belongs to Al-Qa'ida's 19 suicide hijackers and the terrorist infrastructure that supported them. As the leaders of the United States Intelligence Community, however, these officials failed in significant ways to ensure that this country was as prepared as it could have been. 135 ADDITIONAL VIEWS OF REPRESENTATIVE MIKE CASTLE: (R-DELAWARE) TO BE APPENDED TO THE REPORT OF THE JOINT INQUIRY ON THE SEPTEMBER 11, 2001 TERRORIST ATTACKS ON THE UNITED STATES I fully support the findings and recommendations that were debated and approved by the Members and Senators serving on the Joint Inquiry on the September 11, 2001 terrorist attacks on the United States. As the outgoing Chairman of HPSCI's Technical and Tactical Subcommittee, I want to communicate my strong support for Recommendation 10 concerning the National Security Agency's past performance and future role in the global war on terrorism. Specifically, the Joint Inquiry's Recommendation 10 mandates a report from the Director of the National Security Agency to the House and Senate Intelligence Committees no later than June 30, 2003 that will provide the following: (1) a description of solutions for the technological challenges confronting the NSA in the war on terrorism; (2) a quarterly review of the goals, products to be delivered, funding levels, and schedules for every NSA technology development program so as to ensure strict accountability for NSA program expenditures; (3) the implementation by NSA, CIA and FBI of a strategy to fully integrate these agencies' collection and analytic capabilities in the war on terrorism; and ( 4) the development of legislative proposals to improve NSA's coordination and collaboration with other elements of the U.S. Intelligence Community. Although the issue of visa issuances and control was not within the scope and jurisdiction of the Joint Inquiry's review, we did review some information that gave us a glimpse into this issue. As a result, I am very concerned that significant reforms need to be implemented immediately with respect to the management, coordination and oversight of our Nation's visa program. The visa program has suffered from a lack of accountability, unclear lines of bureaucratic responsibility between the Departments of State and Justice, and contradictory legal authorities. The State Department's Bureau of Consular Affairs and the Justice Department's Immigration and Naturalization Service have joint responsibility for the management of our visa program, yet this program's administration has been characterized by poor management practices, uneven enforcement policies, and inadequate coordination between these agencies and other elements of the U.S. intelligence and law enforcement communities. The majority of the September 11th hijackers were wrongly admitted to the United States -- in violation of U.S. immigration laws --as a result of decisions made and errors committed by responsible State Department and Justice Department officers. The fact that many of them entered and operated in true name, further emphasizes the extent to which the current system is broken. Entry of foreign nationals into the United States is a privilege that demands clear authorities to determine who may legally enter the United States with a visa, accurate information on all visa applicants that is fully shared between the relevant agency decisionmakers, and full accountability to ensure that the requirements of consular and immigration law are properly enforced. Equally troubling is our government's inability to properly account for foreign nationals who overstay the authorized period of their visas. These foreign nationals are in violation of our immigration laws and should be held legally accountable. Although the recently enacted Department of Homeland Security bill addresses the need for visa reform, I strongly believe that significant legislative changes are urgently needed to redirect and reorganize our national visa policies. ADDITIONAL COMMENTS JOINT INQUIRY STAFF REPORT U.S. SENATOR MIKE DEWINE DECEMBER 18, 2002 My purpose in providing these additional comments is to express my support for certain recommendations, my reservations regarding others, and my concerns about key intelligence areas that simply are not addressed in the report's recommendations. Accordingly I have identified several areas of this report that merit additional comment. INCREASE RESOURCES The tragic September 11th terrorist attacks represent a massive intelligence failure. Congress and past Administrations, over a period of many years, failed to provide adequate resources to the Intelligence Community. To avert future attacks and improve the security of this nation, in the weeks and months and years ahead, we will need to invest a considerable amount of time and resources in making up for decades of shortfalls in our commitment to intelligence. That will necessitate an on-going, continuous, sustained effort ultimately aimed at reforming the Intelligence Community. FISA CHANGES FISA is one of the primary weapons we have in our war on terrorism, and it is crucial that the Intelligence Community be able to use it aggressively and effectively. The recent Court of Review decision is an important clarification, which should allow the Intelligence Community to confer and coordinate more effectively with law enforcement officials. Nonetheless, the report makes a major omission by failing to recommend any further enhancements to the FISA statute. FISA -- Amend and Make Stronger It is important that we continue to refine and improve the FISA statute, and consequently, I believe that Congress should adopt the proposed Kyl/Schumer amendment to FISA and the proposed DeWine amendment to FISA. The Kyl/Schumer amendment would remove the requirement that the subject suspected of international terrorism be affiliated with a "group engaged in international terrorism or activities in preparation therefore." This change would allow the surveillance of individuals who are not affiliated with any terrorist group and would give the government another weapon to terrorists, who act alone. The De Wine amendment would lessen the burden on the government by changing the standard for showing that a proposed FISA target is "a foreign power or agent of a foreign power." Rather than the current "probable cause" standard, the amendment applies a "reasonable suspicion" standard. Both standards require the court to apply a "totality of the circumstances" test and examine all the various factors to determine if the government has met its burden. But the reasonable suspicion standard is slightly easier to satisfy , and that is appropriate, because these cases involve national security interests. Under such dangerous circumstances, it is appropriate to balance the competing interests in a slightly different \\lay than usual, and make it a little bit easier for the law enforcement interest to prevail. Such a change would make it a little more likely that FISA surveillance is permitted and would make it more likely that FISA can effectively be used in the war on terrorism. For example, in the case of the Moussaoui investigation, there was some uncertainty about whether the facts were sufficient to find probable cause, and so the Justice Department did not apply for a FISA warrant (However, under any legitimate reading of the facts in Moussaoui, the government could have met a reasonable suspicion standard and most likely would have asked for and received surveillance authority.). FISA -- Congressional Oversight In addition to these and other enhancements to FISA, it is important that Congress improve the quality and quantity of oversight with regard to FISA. There are two separate and distinct reasons for this. First, as the recent Court of Review opinion made clear, in recent years, the 2 FISC has imposed on the Justice Department a set of court-created FISA rules that have unnecessarily limited the use of the FISA statute. [1] More vigorous and informed Congressional oversight might have prevented those limitations from being imposed. Furthermore, the Intelligence Committees should hold regularly scheduled hearings to examine the FISA process and receive testimony from senior officials at OIPR and the FBI. These hearings should explore the FISA process and provide information as to how FISA is being implemented. For example, in order to better determine how the Executive Branch is utilizing FISA, the Committee should examine the number of FISA warrants issued during a given period of time and the general subject matter or issues those warrants were meant to address. Furthermore, these hearings should be used to explore a wide range of hypothetical situations -- situations based on actual cases that demonstrate to the Committee how the law would be applied in certain scenarios. This would allow the Committee to develop a better understanding of how FISA is being implemented in a practical, day-to-day manner and also alert the Committee to any instances where the FISC or Justice Department is departing from Congressional intent. _______________ 1 As originally drafted in 1978, FISA allowed surveillance when "the purpose" of that surveillance was to obtain "foreign intelligence information," which is defined, essentially, as information the government needs to protect against attack, sabotage, clandestine intelligence activities, or international terrorism. Over the years, the FISC interpreted "the purpose" to mean "the primary purpose," and interpreted "foreign intelligence information" to mean information that the government needs to protect itself against attack, sabotage, etc., using methods other than law enforcement. So, the FISC took the view that using a FISA warrant to obtain foreign intelligence information that was primarily for use as part of an intelligence strategy, (e.g., to flip a spy) was legitimate; using a FISA warrant to obtain information that was primarily for use as part of a law enforcement strategy (e.g., prosecution) was not legitimate. One of the indicia used by the FISC to determine whether the primary purpose was intelligence (legitimate) or law enforcement (not legitimate) was the degree of involvement by law enforcement agents in the investigation and FISA application process. Accordingly, the Justice Department, with the approval of the FISC, adopted very restrictive guidelines to minimize law enforcement contact with intelligence officers. After the passage of the Patriot Act, the Justice Department litigated the issue of how much contact is allowed between intelligence agents and law enforcement officials, and on appeal, the Foreign Intelligence Surveillance Court of Review overruled the FISC. The Court of Review held that FISA, as originally drafted, did not contain any distinction between foreign intelligence information utilized as part of an intelligence strategy and foreign intelligence information used as part of a law enforcement strategy. Accordingly, the Justice Guidelines strictly limiting contact between law enforcement agents and intelligence officers have never been necessary .It is interesting to note that the Court of Review found that the Patriot Act actually created a distinction between law enforcement use and intelligence use of FISA information. However, because of other modifications in the Patriot Act, the Justice Department is still free from earlier, FISC-created limitations on contact between intelligence officers and law enforcement. 3 FISA -- Protecting Civil liberties The second reason enhanced Congressional oversight is important is because it would provide increased protection of the civil liberties of potential FISA surveillance targets. The FISA process, rightfully so, is highly secretive and not subject to the usual procedural protections built into most other courtroom proceedings. Accordingly, it is particularly important that the Intelligence Committee provide oversight to assure that the FISA process is not being abused, especially now, as we look for ways to enhance and further utilize it in the war against terrorism. In doing so, the Intelligence Committee should consider whether or not the current FISA process provides adequate legal representation for the legal position of potential subject of surveillance. The inherently ex parte nature of the application process raises concerns about civil liberties and may have the counterintuitive effect of making the FISC and even the prosecutors reluctant to use FISA to the full extent allowed by law. Congress should consider whether it could be useful to provide authority to the FISC and to the Court of Review to appoint, on a case-by-case basis, an advocate for the subject. The advocate could be one of a number of pre-cleared attorneys with prior FISA experience, who could serve as a defense attorney on a limited number of cases, where the FISC or Court of Review felt it would be useful. [2] EMPOWERING THE HEAD OF THE INTELLIGENCE COMMUNITY I believe we need to create a cabinet-level intelligence position -- a director of intelligence, who is ultimately responsible for control of the budgets and operations of the overall Intelligence Community. While most experts seem to agree that we need to strengthen the head of national intelligence -- whether that is the DCI or the DNI or some other cabinet-level position -- there is less agreement as to how we go about doing this. My own view is that there are two critical things to keep in mind if we empower the head of national intelligence. First, we need to give the DCI complete budget authority, and second, we need to keep the DCI as the head of the CIA. _______________ 2 These advocates would not contact nor inform the subject of the potential surveillance about the proceedings. Instead, they would act as officers of the court, representing the legal position in opposition to the Justice Department's application for a FISA warrant. 4 Budget Authority The DCI already has authority to review and approve budgets, personneJ, and resources for virtually every aspect of the national intelligence program. Yet, despite this authority, the DCI still actually controls only about 15 to 20 percent of the actual intelligence budget. It is not surprising that as a result, he has been unable to provide necessary leadership within the Intelligence Community, as exemplified by DCI's inability to fully mobilize the Intelligence Community in response to his "declaration of war" on al Qaeda. The DCI has understood the terrorist danger as much as any human being could; yet he didn't have command of all the troops, so to speak, to get the job done. That's why the DCI needs the authority both to manage and oversee the execution of the Intelligence Community budgets. The DCI as Head of the CIA The report's recommendation to separate the positions of DCI and head of the CIA is likely to be counterproductive. A number of experts agree with this proposition. During the open hearings just completed in the intelligence committee Judge Webster, the former head of the CIA and the former head of the FBI, said, in reaction to the suggestion to split the DCI from the CIA: "I would strengthen the DCI. I would not have a head of the national intelligence unless that [head of] national intelligence was actually running something." In his written testimony to the Committee, Anthony Lake, former National Security Advisor, also supported maintaining the CIA under DCI control. Furthermore, the 2001 Hart-Rudman Commission report took this position, as did the 104th Congress House Intelligence Committee staff report, which stated: "Indeed, the testimony of former DCIs and other former senior IC officials all concur that the DCI needs an agency 'of his own' -- i.e., the CIA -- if he is to have any real power within the IC." At this stage, the operational authority vested in the head of the CIA comprises a substantial amount of the power of the DCI. Removal of that authority now would separate him from his 5 operational base and significantly dilute the power of the DCI, at a time when it is not clear that the requisite budgetary authority will, in fact, be conferred upon the office of DCI. OPEN-SOURCE INFORMATION In another important area, the Intelligence Community needs to pay more attention to the collection and analysis of open-source information. This type of information needs to be examined and needs to be taken more seriously. We must remember that open-source information was used to warn investigators in 1999 that al-Qaeda terrorists might fly a hijacked airliner into American buildings. Library of Congress analyst, Rex Hudson, wrote a report for the National Security Council --based entirely on unclassified material --which noted the possibility of almost exactly the kind of attack that occurred on September 11th. Hudson concluded: "Suicide bombers belonging to al-Qaeda's Martyrdom Battalion could crash an aircraft packed with high explosives into the Pentagon, the headquarters of the CIA, or the White House." The Intelligence Community is simply not accustomed to assessing the value of open sources nor is it used to integrating them into their work. In fact, the Intelligence Community is more inclined to use open-source material as a last resort, not as a primary source, no matter how compelling the information. This attitude needs to change, and the Community must re-evaluate how it prioritizes open- source material that ultimately can be of extraordinary value, either by itself or as a mechanism to refine or evaluate other intelligence. REPORTS 1 am also concerned that the Intelligence Community is not being informed about a number of important intelligence issues because of delays in the issuance of requested reports. Part of the problem is that the Senate and House Intelligence Committees are asking for too many unnecessary reports. Compounding that, the Intelligence Community has been slow in the production of the reports, themselves, though in the recent past, the Community has started producing many of these required reports in a more timely fashion. Still a lag remains. To help 6 remedy that, the Intelligence Committees should continue to discuss with the Intelligence Community the status of the currently requested reports and determine which ones are necessary, eliminating those report requests that are not absolutely essential and ensuring that the ones required do, in fact, get generated and issued to the Committees. MULTI-LEVEL SECURITY CAPABILITY One of the most significant problems examined during the open hearings was the lack of information sharing between agencies. In assessing that area of concern, the Intelligence Community needs to figure out how agencies and intelligence personnel can better share and disseminate important information, while still protecting that information from getting into the wrong hands. A relatively simple way to address this would be through the use of a technology known as "multi-level security" capability. Basically, the use of multi-level security allows computer users with different levels of security classification to get different levels of access to information contained and stored in a comprehensive intelligence database. In other words, database users would be able to access only the information in the database that their security clearances allow them to view. This would allow the myriad intelligence agencies to safely combine all of their databases, including those containing the most sensitive data and make the entire combined database accessible to a wide range of intelligence and law enforcement personnel, without sacrificing security for the most highly classified data. For example, a detective in Cincinnati who notices unusual activity around city hall could do a search of the comprehensive Community-wide database for "city halls in Ohio" and come up with some non-classified FBI information about possible attacks on city halls around the state or in other states. He then also would get a notification from the system that there was more information about that topic, but that it was classified at a level above his clearance. At that point, he could go to his supervisor and begin the process of having that information sent to someone within the department who has the appropriate level of clearance. This would help resolve one of the many information-sharing problems facing the Intelligence Community. 7 REFORMING HUMAN INTELLIGENCE COLLECTION (HUMINT) U.S. Human Intelligence collection organizations are unable to penetrate organizations like Al Qaeda because they are not properly organized for the task and have become too risk averse to undertake the kind of dangerous operations required for success. A new organization must be built from the ground up as a small, agile, and adaptive organization with a corporate culture of taking prudent risks. It would have a limited list of targets: terrorists, proliferators, and "rogue states." Creating a new organization has the advantage of creating a capability to directly target organizations like Al Qaeda better than is possible today, yet without undermining the strengths of the existing HUMINT organizations. A Broken Corporate Culture With a few exceptions, the current structure of the HUMINT community remains based on the official cover system used during the Cold War to fight the largely static; Soviet threat. Official cover is when a clandestine intelligence officer appears to work as an employee of another U .s. government agency. Many of the Soviet officers and officials we were trying to recruit during the Cold War associated with U.S. government officials in the course of their normal duties, so it made sense to put our HUMINT collectors in roles where they were likely to encounter their targets in the course of their "ordinary" daily work. The problem is that while the foreign threat has changed since the end of the Cold War, too many U.S. clandestine HUMINT collectors still work under official cover. The work they do in this capacity is important, but it does not offer the full range of capabilities to go after targets such as proliferators or terrorist organizations like Al Qaeda that do not knowingly associate with U.S. government officials. Nobody openly associated with any element of the U.S. government is going to be able to get close to an organization like Al Qaeda, so an official cover is of little use against these targets. The best "platforms" for targeting groups like Al Qaeda are non-official cover operations, or NOC's. A non-official cover is when a clandestine officer appears to be a private citizen without any U.S. government affiliation, typically operating under the cover of a legitimate commercial enterprise. 8 Clandestine human intelligence collection operations under non-official cover (NOC) are very difficult to detect and the U.S. Intelligence Community acknowledges that they are the best platform for working against targets like Al Qaeda. U.S. intelligence entities like the CIA's Directorate of Operations (CIA/DO) have been unable, however, to transform their organizations to employ fully the range of possibilities offered by NOC operations. The primary obstacle is a corporate culture problem -lighter covers (such as official cover) tend to "crowd out" deep covers (such as non-official cover). What this means is that in a clandestine human intelligence collection agency that starts out with a good balance of official and non-official covers, the agency will eventually phase out most of its NOC's in lieu of official cover operations. [3] The reason this happens is two fold: First, many clandestine officers prefer the lifestyle offered by the official cover assignments over NOC assignments, and second, supervisors prefer subordinates who are under official cover where they can be more easily managed. Clandestine officers prefer official cover assignments because working as a NOC officer is a difficult life-style. NOC's are paid the same government salary as their colleagues under official cover, but they get few of the comforts available to those under official cover and none of the legal protections. NOC's have to spend most of their time abroad, and will not be able to meet and network with most of their colleagues in the Agency. Meanwhile, their peers under official cover can interact and network with other agency colleagues, leading to steady promotions and better assignments. Relative to official cover, non-official cover assignments also offer less prestige, safety and comfort, and involve a less family-friendly lifestyle. [4] Not only do clandestine officers generally not want to serve as NOC's, but their managers do not want to use them because officers under official cover are much easier to manage than a NOC. A NOC requires much more elaborate and difficult operational security measures (also known as tradecraft). Another big reason managers do not like using officers under non-official cover is risk aversion: NOC officers are not protected by diplomatic immunity. It is one thing to have an official cover employee declared persona non grata and expelled from the country; it's quite another to have him arrested and shot. Official cover operations are too deeply entrenched in the _______________ 3 Bruce Berkowitz, "Deep Cover," Hoover Digest, Fall, 2002. 4 Bruce Berkowitz, "Deep Cover, " Hoover Digest, Fall, 2002 9
A Broken Cover System The Central Intelligence Agency's Directorate of Operations' (CIA/DO) official cover system has been well known, both in and out of the agency, as a significant operational vulnerability for many years. Foreign intelligence services are all too familiar with the CIA 's official cover system, which suffers from the fact that it is not difficult for sophisticated observers to distinguish CIA officers from actual officers of other U.S. government agencies. The current system of official cover largely amounts to little more than a non-attribution system similar to that used by journalists in Washington, D.C.: it is clear who the intelligence officers are, but diplomatic manners usually preclude saying so. This system works for the bulk of CIA operations, which involve liaison contacts with foreign intelligence services and working with "walk-in" sources (in which the source approaches the agency, not vice versa). In both types of work, the CIA's sources know who they are dealing with and need to know where to go to find them, which makes official cover an excellent fit. This does not work, however, when trying to recruit hard targets such as members of Al Qaeda's inner circle, who do not associate with U.S. government officials. The state of our non-official cover (NOC) system is no better. U.S. intelligence's NOC programs have been damaged by half-hearted execution of operational security measures and under-utilization by managers. The U.S. Intelligence Community is well aware of these significant problems but takes little action to fix them because effective cover is not critical to the way our HUMINT agencies currently do business. Too often content to work with foreign liaison intelligence services and accept walk-ins, HUMINT managers generally do not go after difficult targets, and thus feel they do not need the tools that an effective cover provides. Even beyond the limitations imposed by a system made up of mostly official cover assignments, the existing HUMINT agencies are further limited by a corporate culture that has become 10 excessively risk-averse. For example, despite all the advantages of a career under official cover as compared to non-official cover, the average CIA/DO employee still doesn't spend a significant amount of time overseas. Only about 35 percent of CIA/DO employees have spent more than 3 out of the last 10 years overseas. This low ratio indicates that the wrong mindset now dominates what is supposed to be an overseas clandestine service. The Solution -A New OSS The answer to the problems described above is to create an environment in which the aggressive non-official cover operations we need to be conducting are not "crowded out" by official cover operations. A small agile and adaptive organization should be built, along the lines of the Office of Strategic Services (OSS) in World War II, chartered with a corporate culture of taking prudent risks, and operating exclusively from non-official cover (NOC) platforms. This would be a small organization that would augment the existing HUMINT agencies and work against a limited list of targets: terrorists, proliferators and "rogue states." This organization could be created within an existing HUMINT agency like the CIA or the Defense HUMINT Service (DHS), but creating it as an independent agency would help avoid the possibility that its aggressive non-official cover operations would be "crowded out" by the official cover operations being conducted in these agencies. Creating an independent agency would also avoid the possibility that it would be held back by the culture of risk aversion that exists in agencies like the CIA. and the DHS. Another possibility is to create the organization as an independent agency of the Department of Defense.
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A Longer Term Approach The current HUMINT system is handicapped by a need to conduct operations that can deliver results within the span of an officer's three year tour in order to benefit the careers of both the HUMINT collector and his or her chain of command. We must create in our Intelligence Community a culture and capability that allows the longer-term, unorthodox approaches to human intelligence collection required to combat organizations like Al Qaeda. Rather than the current HUMINT system's typical three-year assignment under official cover and focused on a 13 geographical location, officers would be allowed to spend much longer periods of time moving from country to country at their own discretion to build up and reinforce their bone fides to support a non-official cover.
U.S. clandestine human intelligence entities like the Central Intelligence Agency's Directorate of Operations (CIA/DO) themselves admit that they are not able to penetrate organizations like Al Qaeda. This failure results from their reliance on an official cover system, which does not allow them to get close to Al Qaeda operatives. Even if entities like the CIA/DO were able to build a substantial non-official cover capability, it would soon be "crowded out" by lighter cover operations, like official cover operations, because the corporate culture of these agencies has grown comfortable with the advantages of life under official cover. A new independent organization, like the one proposed above, must be built from scratch in order to create a culture in which aggressive, non-official cover operations can flourish and not be "crowded out." With this new organization focusing on aggressive non-official cover operations, the work that can be done from official cover, like liaison with foreign intelligence services and handling "walk-ins", would be left to existing entities like the CIA/DO that have expertise in this kind of work. Such a new NOC organization, if created independent of existing HUMINT collection agencies like the CIA and operating in the "black" world, may also benefit from being removed from the 14 media spotlight and the politics that consume agencies like the CIA on a daily basis. A bold venture like the new organization proposed above will require the latitude to learn by trial and error as it proceeds into largely uncharted territory. The message must be delivered loud and clear that it is acceptable to fail on the way to success. Oversight of this new entity by Congress and the Executive Branch, while ensuring that the agency operates within the law, also will need to focus on making sure that the agency remains aggressive and does not shy from taking prudent risks in order to ensure that a culture of risk aversion does not develop. A new independent clandestine HUMINT agency may be the fresh start we need to break the pattern of failure that has prevented us penetrating groups like Al Qaeda. CONCLUSION In conclusion, I thank the Chairs of the Joint Committee for their leadership and work over the past several months, as we have reviewed and studied vast amounts of information regarding the September 1 Ith terrorist attacks and the state of the Intelligence Community. I also want to thank my fellow Senate and House Intelligence Committee colleagues and staffs, and the Joint Investigative staff for the countless hours spent on this inquiry. Our nation's security -- the safety and protection of our loved ones -- is directly linked to the quality of the intelligence gathered and analyzed by the Community. Good intelligence is what allows us to find the terrorists before they find us. That's what good intelligence can do -- and reforming our methods of collecting, analyzing, and disseminating good intelligence is our aim is in these recommendations and this report. We must realize, though, that as this joint inquiry ends, our real work, as members of the House and Senate Intelligence Committees, just begins. There are many unresolved issues and areas which time did not permit the Joint Committee to fully and thoroughly investigate. Furthermore, it is incumbent upon us, as Intelligence Committee members, and it is incumbent upon the entire Congress and the President to act on the report's recommendations. We must not let this report sit idle. We need to continue this critical national debate, even as the next commission begins its work. We need to continue to hold hearings. We need to introduce legislation that can help 15 remedy the shortfalls we have identified throughout this investigative process. We need to be committed to an on-going, continuous, sustained effort to reform and fully fund the Intelligence Community. As such, the issuance of this report must be viewed as a beginning -- not an end. 16 Joint Inquiry Report ADDITIONAL VIEWS The Honorable Jane Harman The Joint Inquiry report is a strong product from a strong staff and unprecedented Congressional collaboration. I strongly support this report. It provides the most complete and comprehensive assessment of the plot behind the 9/11 terrorist attacks. It identifies systemic and structural problems within the U.S. Intelligence Community that hampered the prevention of these attacks. And, most important, it looks forward: it applies lessons learned to make recommendations critical to prevent further attacks. Using the information in this report, the 108th Congress has a base on which to oversee, fund, reshape, and reform the intelligence functions of the federal government. The additional views below supplement the report's findings and recommendations. Director of National Intelligence To date, the term "Intelligence Community" (IC) has been an oxymoron. The community is really a collection of stovepipes working separately -often in conflicting or self-interested ways. Creating a real Community requires a coherent approach across agencies and overarching leadership. The recommendation aims to empower a Director of National Intelligence (DNI) to lead the community by pairing authority with responsibility. The Director of Central Intelligence currently lacks the statutory authority to do this. The DNI would also have the responsibility and accountability for bringing unity to the different intelligence collection and analysis functions. The Director would allocate budget resources to provide people and technology where they are needed most, regardless of which federal department houses the agency. All agree that the Administration, Congress, and the IC leadership must act together to foster a more innovative and less risk-averse intelligence culture. The employees in intelligence agencies today are hard-working, capable, and dedicated, but often lack the resources and tools they need to gather, process, analyze, and use information in today's digital environment. In my view, these workers deserve the trust and appreciation of Congress and the nation, and should be encouraged and empowered to be imaginative, innovative, and collaborative in order to protect us from future attacks. Information Sharing The investigation revealed that significant intelligence leads about some of the hijackers were available but did not get widely shared. This was less a willful refusal to share information than it was a failure to grasp its significance. For example, the CIA and NSA had collected information on hijackers al Hazmi and al Mihdhar that connected them to bin Laden, the East Africa Embassy bombings, and the attack on the USS Cole. The agencies also had information indicating that both men were in the United States. The al Hazmi and al Mihdhar story shows what many analysts had claimed for years-the raw databases of CIA and NSA contain extremely valuable information that does not get noticed, shared, integrated, or acted upon. Entities within the agencies that collect signals and human intelligence guard their "raw" data; few outside analysts are allowed access. The NSA and CIA's Directorate of Operations typically insist that they alone, not even all-source intelligence analysts or other sophisticated consumers, possess the special expertise required to evaluate human or signals intelligence data. Before sharing information, these entities go through an internal analysis process that "filters" out everything that does not seem to the analyst sufficiently important or reliable to report. But as the al Hazmi and al Mihdhar cases demonstrate, analysts can fail to appreciate what might be important to potential consumers, who bring different perspectives and other sources of information. There are powerful reasons why the entities within the CIA, NSA, and FBI that collect the raw data are so unwilling to allow access to outside analysts -even those within their parent agency. Compartmentation of classified information is sometimes needed to protect sensitive sources and methods. There is also a need to protect constitutionally-protected privacy rights. For example, NSA personnel are trained in "minimization" procedures to cordon off and protect the communications the agency intercepts. The FBI, historically, has been very concerned to protect the integrity of actual or potential legal proceedings, causing its field offices to restrict access to its unreported information. These obstacles to full exploitation of intelligence information hinder our national security, and must be overcome. It should be feasible to clear all-source counterterrorism analysts to the same standards demanded of the human and signals intelligence collectors and train them in "minimization" procedures to protect the privacy of U.S. persons. As intelligence agencies increasingly focus on homeland security, they must share information with state and local governments, first responder groups, private companies, and the American public. To the extent possible, the intelligence community should create unclassified products that provide guidance for the appropriate responder groups to prevent or prepare for terrorist threats. The IC must work with the Department of Homeland Security to match threat information with vulnerability assessments, and provide the new Department with the intelligence it needs to communicate to first responders what they should look for. Domestic Intelligence Collection The findings reflect problems in gathering and processing actionable intelligence about foreign terrorists on American soil. Problems also exist for gathering and handling intelligence on Americans who assist foreign terrorists or plan terrorist plots. The nature of the terrorist threat does not allow us the luxury of focusing abroad to learn of terrorist activity; we must recognize the existence of terrorist organizations within the United States and develop the capacity to uncover, infiltrate, and disrupt them while respecting the privacy and Constitutional rights of law abiding Americans. The FBI is currently responsible for gathering intelligence within the United States, but is not adequately organized nor resourced to successfully meet this mission. Notwithstanding efforts by FBI Director Mueller, the FBI does not have a robust counterterrorism capability, and there are serious policy and legal questions in co-locating within one agency responsibility for domestic intelligence with law enforcement. Intelligence is fundamentally predictive, based on assumptions, hypotheses, analyses, and forecasts; law enforcement is responsive, based on credible evidence. These functions use different approaches and operating procedures and there is great risk that marrying the two will sacrifice one or both. The report recommends further study and debate of a separate domestic intelligence agency, without law enforcement responsibility or authorization. Such an entity would be modeled on Britain's MI-5, but would be tailored to reflect the U.S. federal system and civil rights laws. Establishing a new agency is not a panacea; Congress must vest any new entity with authorities and safeguards following a national debate over the appropriate scope of domestic intelligence collection. Privacy and Civil Liberties Collecting information on U.S. citizens and foreign visitors in the United States raises serious civil liberty and privacy implications, and it is critical that Congress defend the freedoms and rights of Americans and others. The report recommends continuing Congressional oversight of domestic intelligence authorities, including a review of the implementation of the Foreign Intelligence Surveillance Act and USA Patriot Act. Within the Executive Branch, it is important that the position of Civil Rights and Civil Liberties Officer in the Department of Homeland Security be filled promptly by a senior and well- respected official so that protection of civil liberties is an integral part of homeland security planning and strategy, and not as an afterthought. Leaks Throughout the Joint Inquiry, I have expressed concern with what appear to be frequent leaks of classified intelligence information. The public disclosure of sensitive intelligence information can have devastating effects on intelligence sources and methods needed to fight terrorism. The report recommends the President and agency heads take specific steps to prevent and appropriately punish the unauthorized disclosure of properly classified intelligence. The 108th Congress should demand updates on the measures recommended by the Attorney General in a report to the Congress in fall 2002. Conclusion Intelligence remains the key to preventing terrorist attacks. The IC has had many successes in uncovering and preventing attacks that, by necessity, go unreported and publicly unappreciated. But terrorists need to be successful only once to kill Americans and demonstrate the inherent vulnerabilities we face. We have learned that despite considerable attention and significant efforts across and throughout the intelligence agencies in the summer of 2001, crucial information was not exploited, and organizational barriers in the IC blocked preventive action. Solutions to these problems involve forging a true "digital" community of intelligence agencies with strong leadership, overcoming entrenched bureaucratic and risk-averse cultures, and empowering our intelligence employees. This report and these additional views are a basis for action in the 108th Congress. It will be my priority to see these improvements made. |