{"id":52279,"date":"2016-09-30T11:27:00","date_gmt":"2016-09-30T16:27:00","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/supreme\/legal-commentary\/is-it-time-to-reform-intelligence-reform.html"},"modified":"2016-09-30T11:27:00","modified_gmt":"2016-09-30T16:27:00","slug":"is-it-time-to-reform-intelligence-reform","status":"publish","type":"supreme","link":"https:\/\/supreme.findlaw.com\/legal-commentary\/is-it-time-to-reform-intelligence-reform.html","title":{"rendered":"Is It Time to Reform Intelligence Reform?"},"content":{"rendered":"\n
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Is It Time to Reform Intelligence Reform?
Why We May Come to Regret the Intelligence Reform and Terrorism Prevention Act of 2004<\/span><\/h1><\/td>\n <\/tr>\n

By BOB BARR<\/h2><\/a><\/td>\n <\/tr>\n

Friday, Jan. 21, 2005<\/td>\n\n <\/tr>\n <\/table>\n

Late last year, in response to the recommendations of the 9\/11 Commission, Congress passed a new, major intelligence reform law – the Intelligence Reform and Terrorism Prevention Act of 2004 (which I will refer to as “the Act). It remains to be seen whether the Act represents a sea-change in the way the United States goes about the intelligence game, or whether it is simply a recipe for more of the same bureaucratic bottlenecks and buck-passing that led, in part, to 9\/11.<\/p>

As a former CIA analyst and long-time student of American intelligence, I believe intelligence reform is needed. However, a thorough examination of the Act’s provisions leads me to wonder if we will come to regret this new law. <\/p> \n\n

Much of it the Act concerned with merely reshuffling authority among the bureaucracies that form the current intelligence community. But as I will explain, this particular reshuffling of authority may be a serious error. <\/p>

Background: The Organizational Structure of <\/b>U.S.<\/b> Intelligence Before the Act<\/b><\/p>

<\/b><\/p>

The modern American intelligence system originated early in the Cold War era. Most significantly, the National Security Act of 1947 established the CIA, intended as the primary collector and interpreter of non-tactical foreign intelligence. <\/p>

The CIA, the Act made clear, would be headed by a chief – the Director of Central Intelligence (DCI) – who was to serve two masters. The DCI had direct responsibility for the management of the CIA. But the DCI was also saddled with “community-wide” duties – which tended to bring him into conflict with the Secretary of Defense, the heads of each of the armed services’ intelligence arms, the director of the FBI, and other executive officials with a hand in the intelligence-money pie. <\/p>

Historically, the Pentagon was the primary bureaucratic competitor with the CIA, as many intelligence activities (most notably, the construction and operation of spy satellites and the interception of electronic communications) were established under military purview. Indeed, prior to the passage of the Act, 80 percent of the estimated $40 billion spent annually on intelligence in America was under military control.<\/p>

In addition, prior to the passage of the Act, the American intelligence infrastructure was largely headless. It was composed of 15 separate agencies, most of which were within the Pentagon. The various agencies fought constant internecine wars over resources, prestige and the ear of the president.<\/p>

\n\nWhy the Act’s Reshuffling of Authority May Be Misguided<\/b><\/p>

The 9\/11 legislation attempts to remove the structural cause of interagency conflict by eliminating the DCI position, and creating a new position – the “National Intelligence Director” or “NID.” <\/p>

At least in title, and in theory, the NID serves as a single point of authority exercising power over the entire intelligence community. The idea is to encourage the entire intelligence community to run patterns from the same playbook – that of the NID.<\/p>

There are a number of problems with this approach. First, even if the NID were to be imbued with godlike authority, it is unclear whether he or she would practically be able to break down the old guard enough to effect real change. <\/p>

Second, from even a cursory reading of the new law, it is clear that the NID’s authority is far inferior to the ideal. For instance, the budgetary provisions give the NID the responsibility for developing a “consolidated budget for the National Intelligence Program,” and permit the NID’s “participation” in formulating budgets for tactical and other military intelligence. But the power to develop and participate is hardly the power to helm and control. Thus, only time will tell whether this provision will lead to an NID who wields real budgetary power, or a mere paper tiger. <\/p>

Third, and finally, the bill only managed to garner enough votes for passage after sponsors agreed to include a provision specifying that nothing in it would “abrogate” the statutory authority of other heads of departments. But that’s a big problem: The Defense Secretary, for instance, has vast<\/u> statutory authority over intelligence gathering, authority that is seemingly preserved under this little-noticed section.<\/p>

This anti-abrogation language was described as “minor” by champions of the bill who were desperate for a pre-election win. But it may become quite major: Just as with the NID’s vague budgetary authority, the anti-abrogation language could become the ultimate wrench in the gears of reform. <\/p>

Putting Immense Authority In the Hands of a Single Person May Be Disastrous<\/b><\/p>

Let’s suppose though, that the NID can seize the purse strings and subdue the departmental egos in the intelligence community – a Herculean task. Even if this occurs, vesting such overweening authority in one person could itself lead to disaster. <\/p>

In one of the few conclusions of the 9\/11 Commission that I found to be spot on, the commissioners primarily blamed a pervasive lack of “imagination” as the real reason behind 9\/11. In other words, nobody seriously considered the possibility of a suicide hijacking of commercial aircraft – even though in hindsight, such a scenario obviously poses a serious threat, and one that might have been prepared for, and possibly prevented. <\/p>

The 9\/11 Commission’s point is well taken. Intelligence analysts are human, and humans often think inside boxes. The problem, then, with putting all the intelligence eggs in one human basket is that we may actually retard, rather than encourage, such innovative analysis. <\/p>

Take, for instance, a particular NID who remains stuck in a Cold War mentality, where superpower politics present the greatest threat to our national security. Or, take a particular NID who discounts games of state, and sees non-state actors as the ultimate priority. <\/p>

The point is not that either of these two worldviews is wholly right or wrong. It is that a single point of policy-making could muffle arguments and perspectives on either side – to our detriment.<\/p>

How to Coordinate Foreign and Domestic Intelligence: Communication, Not Consolidation<\/b><\/p>

Finally, aside from practical arguments, the centralization of intelligence authority poses obvious civil liberties concerns. <\/p>

Admittedly, greater coordination is needed between foreign intelligence operations and domestic law enforcement – information sharing is crucial. It is important that we have create procedures to ensure that the “cops” know about domestic threats identified by the “spies” – and that the “cops” can let the “spies” know if they suspect that a domestic criminal operation might have a terrorism dimension, or that a particular perpetrator’s crime may be part of preparation for a terrorist act. <\/p>

But different laws govern the two spheres. Carefully wrought constitutional checks and balances traditionally apply to domestic law enforcement and homeland security operations. So actually consolidating<\/u> foreign intelligence operations and domestic law enforcement – as the Act tries to do – is a serious error. An all-powerful “spymaster” should not have been put in charge of both realms. <\/p>

Inevitably, the law that prevails, due to the consolidation, will be the more permissive law that governs foreign intelligence operations, which will increasingly be applied in domestic criminal cases — and constitutional rights will suffer. We have already seen the USA Patriot Act applied to garden variety domestic crimes. That trend should not continue.<\/p>

To make matters worse, the NID’s civil liberties board lacks oversight authority. That fact – coupled with the potentially vast authority of the NID – foreshadows trouble. We may even see a repeat of the black-ops-on-American-soil excesses of the 1960s and ’70s.<\/p>

In the end, we’ll have to wait and see before passing final judgment on what the 9\/11 Commission has wrought. Preliminary indications, however, are not good, for the reasons I have cited. <\/p>

Regardless of whether the new National Intelligence Director becomes a bureaucratic strongman or a 98-pound weakling, the prospects for effective intelligence reform have been hamstrung by the imperfect process that brought the position into being. And, consequently, I’ll say this much: we better keep tabs on our spies.<\/p>\n\n\n<\/span>\n\n

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\n\n\n<\/a>\nBob Barr served in the U.S. House of Representatives from January 1995 to January 2003. He was a senior member of the Judiciary Committee. He now practices law, writes extensively, works with the American Conservative Union, and consults on privacy matters with the ACLU.\n

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