SEPTEMBER 11 AND THE IMPERATIVE OF REFORM IN THE U.S. INTELLIGENCE COMMUNITY

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• Document Creation Date: March 9, 2023
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• Publication Date: December 10, 2002

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SUMMARY:
Additional views of Senator Richard C. Shelby regarding the 9-11 Joint Inquiry.
Date: 10 December 2002
Received in DAC: 19 December 2002
P0-BOARD 07310 1005 P 2002
UNCLASSIFIED
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September 11 and the Imperative of Reform
in the U.S. Intelligence Community
Additional Views of Senator Richard C. Shelby
Vice Chairman, Senate Select Committee on Intelligence
December 10, 2002
"In actual practice, the successful end to the Cold War and the lack of
any national intelligence disasters since then seem to militate in favor
of keeping the existing structure until some crisis proves it to be in
dire need ofrepair... . Thus we are likely to live with a decentralized
intelligence system and the impulse toward centralization until a
crisis re-aligns the political and bureaucratic players or compels them
to cooperate in new ways."
Deputy Chief, CIA History Staff
publication dated 2001'
Our country's Intelligence Community was born because of the devastating surprise attack
the United States suffered at Japanese hands at Pearl Harbor on December 7, 1941. In the wake
of that disaster, America's political leaders concluded "that the surprise attack could have been
blunted if the various commanders and departments had coordinated their actions and shared their
intelligence." This was the inspiration behind the National Security Act of 1947, which
"attempted to implerrent the principles of unity of command and unity of intelligence."'
Central Intelligence: Origin and Evolution (Langley, Virginia: CIA History Staff, CIA Center
for the Study of Intelligence, 2001), from the Historical Perspective by Dr. Michael Warner
[hereinafter "Warner"], at 2 & 18.
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Warner, supra, at 1.
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Sixty years later, on September 11, 2001, we sufEred another devastating surprise attack,
this time by international terrorists bent upon slaughtering Americans in the name of their God.
This second attack is the subject of the findings and recommendations of the unprecedented Joint
Inquiry conducted by the Senate Select Committee on Intelligence (SSCI) and the House
Permanent Select Committee on Intelligeme (HPSCI). In this document, I offer my own
assessments and suggestions, based upon my four and a half years as Chairman of the SSCI and
one and a half years as its Vice Chairman. These additional views are intended to complement and
expand upon the findings and recommendations of the Joint Inquiry.
Long before the September 11 attacks, I made no secret of my feelings of disappointment
in the U.S. Intelligence Community for its performance in a string of smaller-scale intelligence
failures during the last decade. Since September 111 have similarly hid from m one my belief
that the Intelligence Community does not have the decisive and innovative leadership it needs to
reform itself and to adapt to the formidable challenges of the 21st Century.
In the following pages, I offer my suggestions about where our Intelligence Community
should go from here. These views represent the distilled wisdom of my eight years on the SSCL
of innumerable hearings, briefings, and visits to sensitive sites and facilities, and of thousands of
man-hours of diligent work by intelligence oversight professionals on the SSCI staff over several
years. Most of all, these Additional Views represent the conclusions I have reached as a resuk of
the work of our Joint Inquiry Staff and the many private and public committee hearings we have
had into the intelligence failures that led up to September 11.
I hope that the American public servants who inherit responsibility for these matters
during the 108'h Congress and the second half of President Bush's first term will carefully consider
my arguments herein. Thousands of Americans have already been killed by the enemy in the war
declared against us by international terrorists, and though we have enjoyed some signal successes
since our counteroffensive began in late September 2001, our Intelligence Community remains
poorly prepared for the range of challenges it will confront in the years ahead.
Too much has happened for us to be able to conclude that the American people and our
national security interests can be protected simply by throwing more resources at agencies still
fundamentally wedded to the pre-September 11 status quo. I salute the brave and resourceful
Americans both in and out of uniform who are even at this moment taking the fight to the
enemy in locations around the world. These patriots, however, deserve better than our
government's recommitment to the bureaucratic recipes that helped leave us less prepared for this
crisis than we should have been.
I hope that the Joint Inquiry's report and these Additi onal Views thereto will help spur
the kind of broad-ranging debate in Congress, within the Administration, and among the American
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public that our present circumstances deserve. The road to real intelligence reform is littered
with the carcasses of forgotten studies and ignored reports. We cannot afford to let the results of
this unprecedented Joint Inquiry be forgotten as well. The American people will not forgive us if
we faillo make the changes necessary to ensure that they are better protected in the future.
Executive Summary
Community Structure and Organization. With respect to the
structure and organization of the U.S. Intelligence Community (IC), the
story of counterterrorism (CT) intelligence work before September 11
illustrates not only the unwillingness of the Director of Central Intelligence
(DCI) fully to exercise the powers he had to direct resources and attention
to CT, but also the institutional weakness of the DCI 's office within the
Community. Caught ambiguously between its responsibilities for providing
national-level intelligence and providing support to the Department of
Defense to which most IC agencies owe their primary allegiance, the
Community proved relatively unresponsive to the DCI 's at least partly
rhetorical 1998 declaration of "war" against Al-Qa'ida. The fragmented
nature of the DCI's authority has exacerbated the centrifugal tendencies of
bureaucratic politics and has helped ensure that the IC responds too slowly
and too disjointedly to shifting threats. Ten years after the end of the Cold
War, the Community still faces inordinate difficulty responding to evolving
national security threats.
To help alleviate these problems, the office of the DCI should be
given more management and budgetary authority over IC organs and be
separated from the job of the CIA Director, as the Joint Inquiry suggests in
urging that we consider reinventing the DCI as the "Director of National
Intelligence." Moreover, the DCI (or DNI, as the case may be) should be
compelled actually to use these powers in order to effect real IC
coordination and management. An Intelligence Community finally capable
of being coherently managed as a Community would be able to reform and
improve itself in numerous ways that prove frustratingly elusive today
ultimately providing both its national-level civilian and its military
customers with better support. Congress should give serious
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consideration, in its intelligence reform efforts, to developing an approach
loosely analogous to that adopted by the Goldwater-Nichols Act in
reforming the military command structure in order to overcome entrenched
bureaucratic interests and forge a much more effective 'joint" whole out of
a motley and disputatious collection of parts.
Most importantly, Congress and the Administration should focus
upon ensuring an organizational structure that will not only help the IC
respond to current threats but will enable our intelligence bureaucracies to
change themselves as threats evolve in the future. We mist not only learn
the lessons of the past but learn how to keep learning lessons as we change
and adapt in the future. To this end, the IC should adopt uniform
personnel and administrative standards in order to help ensure that its
personnel and organizational units remain unique and valuable individual
resources but also become administratively fungible assets, capable of being
reorganized and redirected efficiently as circumstances demand. It will
also be necessary to break the mindset within the IC that holds that only
intelligence professionals actually empbyed by the traditional collection
agencies can engage in collection or analysis of those agencies' signature
types of intelligence. The traditional co llection agencies' expertise in
"their" areas should be used to enrich the Community's pool of intelligerre
know-how rather than as barriers to entry wielded in defense of
bureaucratic and financial "turf" Instead, the collection agencies should be
charged with certifying but not running or controlling training curricula
within other IC agencies that will produce competent specialists in the
relevant fields.
Ultimately, Congress and the Administration re-examine the basic
structure of the intelligence provisions of the National Security Act of 1947
in light of the circumstances and challenges our country faces today.
Returning to these roots might suggest the need to separate our country's
"central" intelligence analytical functions from the resource-hungry
collection responsibilities that make agencies into self-interested
bureaucratic "players."
Information-Sharing. Our Joint Inquiry has highlighted
fundamental problems with information-sharing within the IC, depriving
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analysts of the information access they need in order to draw the inkrences
and develop the conclusions necessary to inform decision-making. The
IC's abject failure to "connect the dots" before September 11, 2001
illustrates the need to wholly re-think the Community's approach to these
issues.
The CIA's chronic failure, before September 11, to share with other
agencies the names of known Al-Qa 'ida terrorists who it knew to be in the
country allowed at least two such terrorists the opportunity to live, move,
and prepare for the attacks without hindrance from the very federal officials
whose job it is to find them Sadly, the CIA seems to have concluded that
the maintenance of its information monopoly was more important that
stopping terrorists from entering or operating within the United States.
Nor did the FBI fare much better, for even when notified in the so-called
"Phoenix Memo" of the danger ofAl-Qa'ida flight school training, its
agents failed to understand or act upon this information in the broader
context of information the FBI already possessed about terrorist efforts to
target or use U.S. civil aviation. The CIA watchlisting and FBI Phoenix
stories illustrate both the potential of sophisticated information-sharing and
good information-empowered analysis and the perils of fiuiling to share
information promptly and efficiently between (and within) organizations.
They demonstrate the need to ensure that intelligence analysis is conducted
on a truly "all-source" basis by experts permitted to access all relevant
information no matter where i n the IC it happens to reside.
The IC's methods of information-sharing before September 11
suffered from profound flaws, and in most respects still do. In order to
overcome bureaucratic information-hoarding and empower analysts to do
the work our national security requires them to do, we need to take
decisive steps to reexamine the fundanrntal intellectual assumptions that
have guided the IC's approach to managing national security information.
As one witness told the Joint Inquiry, we may need "to create a new
paradigm wherein 'ownership' of infot uation belonged with the analysts
and not the collectors." In addition, the imbalance between analysis and
collection makes clear that in addition to being empowered to conduct true
"all-source" analysis, our analysts will also need to be supplied with
powerful new tools if they are to provide analytical value-added to the
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huge volumes of information the IC brings in every day. Recent
development and initiatives in comprehensive dat abasing and data-mining
suggest that solutions to these challenges may be within our reach. The
information-analysis organization within the new Department of Homeland
Security als has great potential to contribute to effective CT information-
sharing and analyst-empowerment within the U.S. Government and
Congress has given it the legal tools it needs to play this crucial catalytic
role. Meanwhile, Congress should take decisive steps to help stem our
contemporary culture of endemic "leaking" of national security information
to the media, so as better to ensure that our analysts remain better informed
about terrorists than the terrorists do about them.
Intelligence-Law Enforcement Coordination. The September 11
story also illustrates the tremendous problems of coordination between
U.S. law enforcement and intelligence entities that developed out of a long
series of misunderstandings, timorous lawyering, and mistaken
assumptions. Congress and the Administration have made progress since
September 11 in breaking down some of the mythologies that impeded
coordination. Thanks to Congress' passage of the USA PATRIOT Act of
2001 and the Justice Department's success in appellate litigation to compel
the Foreign Intelligence Surveillance Court to implement these changes, for
instance, the legally fallacious "Walr' previously assumed to exist between
intelligence and law enforcement work has been breached and years of
coordination-impeding Justice Department legal reticence has been
overcome.
With luck, we will never again see the kind of decision-making
exhibited when the CIA refused to share information with FBI criminal
investigators about two known Al-Qa'ida terrorists (and soon-to-be suicide
hijackers) in the United States, and when the FBI only days before the
September 11 attacks delberately restricted many of its agents from
participating in the effort to track down these terrorists on the theory that
this was work in which criminal investigators should play no role.
Hopefully we will also no longer see the kind of fundamental legal
misunderstanding displayed by FBI lawyers in the Moussaoui case, in
which investigators in Minneapolis were led on a three-week wild goose
chase by a faulty analysis of the Foreign Intelligence Surveillance Act
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(FISA). It will take sustained Congressional oversight in order to ensure-
compliance with the information-sharing authorities and mandates of the
USA PATRIOT Act, but it is imperative that we ensure that such problems
do not recur. To help achieve this, Congress should modify the Act's
"sunset" provisions and should approve legislation proposed by Senators
Kyl and Schumer to modify FISA's "foreign power" standard.
Domestic Intelligence. The story of September 11 is also replete
with the FBI's problems of internal counterterrorism and
counterintelligence (CI) coordination, information-sharing, and basic
institutional competence. The FBI was unaware of what information it
possessed relevant to internal terrorist threats, unwilling to devote serious
tine, attention, or resources to basic intelligence analytical work, and too
organizationally fragmented and technologically impoverished to fix these
shortfalls even had it understood them and really wished to do so. These
problems persisted, moreover, through a major FBI reorganization
ostensibly designed to address these problems, which hid been well known
for years.
The FBI's problems in these respects suggests that the Bureau's
organizational and institutional culture is terribly flawed, and indeed that
the Bureau as a law enforcement organization is fundamentally
incapable, in its present form, ofproviding Americans with the security
they require against foreign terrorist and intelligence threats. Modern
intelligence work increasingly focuses upon shadowy transnational targets,
such as international terrorist organizations, that lack easily-identifiable
geographic loci, organizational structures, behavioral patterns, or other
information "signatures." Against such targets, intelligence collection and
analysis requires an approach to acquiring, managing, and understanding
information quite different from that which prevails in the law enforcement
community. The United States already has a domestic intelligence agency
in the form of the FBI, but this agency is presently unequal to the
challenge, and provides neither first-rate CT and CI competence nor the
degree of civil liberty protections that would obtain were domestic
intelligence collectors deprived of their badges, guns, and arrest powers
and devoted wholly to CI and CT tasks.
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This pattern of dysfunction compels us to consider radical reform at
the FBI. A very strong argument can be made for removing the CI and CT
portfolios from the Bureau, placing them in a stand-alone member of the
Intelligence Community that would be responsible for domestic intelligence
collection and analysis but would have no law enforcement powers or
responsibilities. Alternatively, it might be sufficient to separate the CI and
CT functions of the FBI into a semi-autonomous organization that reports
to the FBI director for purposes of overall coordination and accountability,
but which would in every other respect be wholly separate from the
"criminal" components of the FBI. A third approach might be to move the
FBI's CI and CT functions to the new Department of Homeland Security,
thereby adding a domestic collection element to that organization's soon-
to-be-created Undersecretariat for Information Analysis and Infrastructure
Protection. Some kind of radical reform of the FBI is long overdue, and
should be a major item on the "intelligence reform" agenda for the 108th
Congress. The Bush Administration and the 108' 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 21' century.
Human Intelligence. The status quo of IC approaches to human
intelligence (HUMINT) was tested against the Al-Qa'ida threat and found
wanting. The CIA's Directorate of Operations (DO) has been too reluctant
to develop non-traditional HUMINT platforms, and has stuck too much
and for too long with the comparatively easy work of operating under
diplomatic cover from U.S. embassies. This approach is patently unsuited
to HUMINT collection against nontraditional threats such as terrorism or
proliferation targets, and the CIA must move emphatically to develop an
entirely new collection paradigm involving greater use of non-official cover
(NOC) officers. Among other things, this will necessitate greater efforts to
hire HUMINT collectors from ethnically and culturally diverse
backgrounds, though without a fundarrental shift in the CIA's HUMINT
paradigm diversity for diversity's sake will be of little help. The CIA
should also spend more time developing its own sources, and less time
relying upon the political munificence of foreign liaison services.
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Covert Action. The CIA's decidedly mixed record of success in
offensive operations against Al-Qa'ida before September 11 illustrates the
need for the President to convey legal authorities with absolute clarity. If
we are not to continue to encourage the kind of risk-averse decision-
making that inevitably follows from command-level indecision, our
intelligence operators risking their lives in the field need to know that their
own government will make clear to them what their job is and protect them
when they do it. Congress should bear this in mind when conducting its
legitimate oversight of covert action programs in the future, even as it
struggles to cope with the oversight challenges posed by the potential for
the Defense Department to take a greater role in such activities.
Accountability. The story of September 11 is one replete with
failures: to share information, to coordinate with other agencies; to
understand the law, follow existing rules and procedures, and use available
legal authorities in order to accomplish vital goals; to devote or redirect
sufficient resources and personnel to counterterrorism work; to
communicate priorities clearly and effectively to IC components; to take
seriously the crucial work of strategic counterterrorism analysis; and most
importantly, to rise above parochial bureaucratic interests in the name of
protecting the American people from terrorist attack
The DCI has declared us to be at "war" against Al-Qa'ida since
1998, and as the President has declared, we have really been so since at
least September 11. Some have suggested that this means that we should
postpone holding anyone accountable within the Intelligence Community
until this war is over and the threat recedes. I respectfully disagree.
The threat we face today is in no danger of subsiding any time
soon, and the problems our Intelligence Community fices are not ones
wisely left unaddressed any longer. Precisely because we face a grave and
ongoing threat, we must begin reforming the Community immediately.
Otherwise we will be unable to meet this threat. The metaphor of "war" is
instructive, for wise generals do not hesitate to hold their subordinates
accountable while the battle still rages, disciplining or cashiering those who
fail to do their duty. So also do wise Presidents dispose of their faltering
generals under fire. Indeed, failures in wartime are traditionally considered
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less excusable, and are punished more severely, than failures in times of
peace.
Nor should we forget that accountability has two sides. It is also a
core responsibility of all good leaders to reward those who perform well,
and promote them to positions of ever greater responsibility. In urging the
Intelligence Community to hold its employees accountable, the IC must
therefore both discipline those who fall down on the job and reward those
who have excelled.
For these reasons, it is disappointing to me that despite the Joint
Inquiry's explicit mandate to "lay a basis for assessing the accountability of
institutions and officials of government" and despite its extensive findings
documenting recurring and widespread Community shortcomings in the
months and years leading up to September 11, the Joint Inquiry has not
seen fit to identify any of the indiviluals whose decisions left us so
unprepared. I urge President Bush to examine the Joint Inquiry's findings
in order to determine the extent to which he has been well served by his
"generals" in the Intelligence Community.
Some have argued that we should avoid this issue of accountability
lest we encourage the development of yet more risk-aversion within the
Community. I do not believe this is the case. The failings leading up to
September 11 were not ones of impetuousness, the punishment for which
might indeed discourage the risk-taking inherent in and necessary to good
intelligence work. The failures of September 11 were generally ones not of
reckless commission but rather of nervous omission. They were failures to
take the necessary steps to rise above petty parochial interests and
concerns in the service of the common good. These are not 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 needlessly vulnerable
in the future.
I advocate no crusade to hold low-level employees accountable for
the failures of September 11. There clearly were some individual failings,
but for the most part our hard-working and dedicated intelligence
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professionals did very well, given the limited tools and resources they
received and the constricting institutional culture and policy guidance they
faced. The IC's rank-and-file deserve no discredit for resource decisions
and for creating these policies.
Ultimately, as the findings of the Joint Inquiry make clear though
they stop short of actually saying so accountability must begin with those
whose job it was to steer the IC and its constituent agencies through these
shoals, and to ensure that all of them cooperated to the best of their
abilities in protecting our national security. Responsibility must lie with 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 narre names.
The U.S. Intelligence Community would have been far better prepared br
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: DCIs George Tenet and John Deutch, FBI
Director Louis Freeh, and NSA Directors Michael Hayden and Kenneth
Minnthan, and NSA Deputy Director Barbara McNamara. These
individuals are not responsible for the disaster of September 11, of course,
for that infamy belongs to Al-Qa'ida's 19 suicide hijackers and the terrorist
infrastructure that supported them. As the leaders of the United States
Intelligence Community, however, these officials failed in significant ways
to ensure that this country was as prepared as it could have been.
I. Intelligence Community Structure
A. The DC1's Problematic "War" of 1998
The Director of Central Intelligence (DCI) testified before Congress in February 2001 that
he considered Usama bin Laden and Al-Qa'ida to be the most important national security threat
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faced by the United States.' In December 1998, in fact in the wake of the terrorist bombings of
the U.S. embassies in Dar es Salaam, Tanzania, and Nairobi, Kenya he had proclaimed that
"[w]e are at war" with Al-Qa'ida.4 The story of this "war," however, underlines the problematic
nature of the U.S. Intelligence Community's rranagenent structure.
As the Joint Inquiry Staff (HS) has noted in its presentations to the Committees, "[dlespite
the DCI's declaration of war in 1998, there was no massive shift in budget or reassignment of
personnel to counterterrorism until after September 11, 2001.'' Indeed, the amount of money
and other resources devoted to counterterrorism (CT) work after the DCI's "declaration of war"
in 1998 barely changed at all. The budget requests sent to Congress relating to the CIA's
Counterterrorism Center (CTC), for instance, rose only marginally in the low single-digit
percentages each year into Fiscal Year 2001 and at rates of increase essentially unchanged from
their slow growth before the "war." (These requests, incidentally, were met or exceeded by
Congress, even to the point that the CIA ended Fiscal Year 2001 with millions of dollars in
counterterrorism money left unspent.6)
In his 1998 "declaration of war," the DCI had declared to his deputies at the CIA that "I
want no resources or people spared in this effort, either inside the CIA or the Community."' CIA
officials also told the HPSCI on March 4, 1999 in a written response to questions about the
CIA's proposed budget for Fiscal Year 2000 that "the Agency as a whole is well positioned" to
work against Al-Qa'ida targets, and that they were "confident that funding could be redirected
intemally, if needed, in a crisis."'
3
4
5
6
7
8
Senate Select Committee on Intelligence, hearing in to "Worldwide Threats to National Security"
(February 7, 2001) (remarks of George Tenet, declaring that "Osama bin Laden and his global
network of lieutenants and associates remain the most immediate and serious threat.")
JIS, written statement submitted to joint SSCl/HPSCI hearing (September 18, 2001), at 9.
JIS, written statement submitted to joint SSCl/HPSCI hearing (September 18, 2001), at 10.
The detailed figures remain classified.
JIS, written statement submitted to joint SSCl/HPSCI hearing (September 18, 2001), at 9.
Central Intelligence Agency, response to "HPSCI Questions for the Record" (March 4, 1999)
(declassified portion).
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Shortly thereafter, however, a study conducted within the CTC found that it was unable to
carry out more ambitious plans against Al-Qa'da for lack of money and personnel,' and CIA
officials reported being "seriously overwhelmed by the volume of information and workload"
before September 11, 2001.10 According to former CTC chief Cofer Black, "before September
11, we did not have enough people, money, or sufficiently flexible rules of engagement." The
troops fighting the DC I's "war," in short, didn't have the support they needed. (Even when the
DCI requested additional counterterrorism money from Congress, it almost invariably did so in
the form of supplemental appropriations requests thus denying Community managers the ability
to prepare long-term plans and programs because these increases were not made a part of the
Community's recurring budgeting process.)
Under the National Security Act of 1947, the DCI has considerable budgetary power over
the U.S. Intelligence Community. His consent is needed before agency budget requests can be
folded into the National Foreign Intelligence Program (NFIP) budget proposal, and he has
authority over reprogramming both money and personnel between agencies.' Simultaneously
serving as Director of the CIA, the DCI also has essentially complete authority over that
organization, both with respect to budget requests and day-to-day management. If a DCI were
willing actually to use the full range of powers available to him, these statutory levers would give
him considerable influence over the Community. One of the great unanswered questions of our
September 11 inquiry, therefore, is how the DCI could have considered himself to be "at war"
against this country's most important foreign threat without bothering to use the full range of
authorities at his disposal in this fight.
Unfortunately, part of the reason for this failure is the current DCI 's longstanding
determination which he expressed quite frankly to some of us at a SSCI off-site meeting that
he does not really consider himself to be DCI. His principal interest and focus in office, he has
told us, revolves around his role as head of the CIA, rather than his role as head of the
9
ib
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12
This was the conclusion presented to an internal CIA ccnference on September 16, 1999.
Further information about this internal study, however, has not been declassified.
JIS, written statement submitted to joint SSCl/HPSCI hearing (September 18, 2001), at 13.
Cofer Black, written statement submitted to joint SSCl/HPSC1 hearing (September 26, 2001), at
10.
See 50 U.S.C. � 403-4(b), (c), and (d).
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Community as a whole. (The DCI has also publicly supported the creation of an Undersecretary
of Defense for Intelligence [US DI], which seems likely only to reduce his influence over the
Defense components of the U.S. Intelligence Community.) Part of the reason may also lie in the
merely rhetorical nature of the DCI's 1998 proclamation: since September lithe DCI has pointed
to his "declaration o f war" as a token of his pre-September 11 seriousness o f purpose against Al-
Qa'ida, but it does not appear to have been circulated or known outside a small circle of intimates
bethre that date. And part of the reason that more was not done may also lie at higher levels of
political authority. The nature of the "war" contemplated in 1998 certainly pales in comparison to
the use of that term after September 11, and officials have suggested in the press that they
undertook, as much as was politically possible at the time."
That said, there can be no gainsaying that even if the DCI had really meant to "declare
war" against Al-Qa'ida in 1998, the fragmented structure of the Intelligence Community and his
tenuous authority over its component agencies would have greatly handicaliped any effort to
conduct an effective counterterrorist campaign from the DCI's office. His existing budget and
reprogramming authorities under Section 104 of the National Security Act, for instance, extends
by its terms only to the NFIP budget and not to the Joint Military Intelligence Program (JMIP)
and the Tactical Intelligence and Related Accounts (TIARA) budgets.' For this reason, no
serious plan to reform the U.S. Intelligence Community can ignore the problem of Conununity
management and the weaknesses of the office of the DCI as the Community's nominal head.
B. Reinvigorating the Office of the DCI?
The most obvious problem with respect to the IC's ability to act as a coherent and
effective whole is the fact that more than 80 percent of its budgets and personnel resources are
controlled by the Department of Defense (DOD). The DCI may be the titular head of the
13
14
See, e.g., Barton Gellman, "Broad Effort Launched After '98 Attacks," Washington Post
(December 19, 2001), at Al (quoting brmer Assistant Secretary of State for South Asian Afftirs
Karl Inderfurth that "Until September 11', there was certainly not any grourtdswell ofsupport to
mount a majcr attack on the Taliban."); Bob Drogin, "US. Had Plan for Covert Afghan Options
Before 9/11," Los Angeles Times (May 18, 2002), at A14 (quoting former Clinton Administration
State Department official that invasicn of Afghanistan was "really not an cption" before
September 11).
Section 104 only discusses the NFIP. See 50 U.S.C. �� 403-4(b) (budget approval); 403-4(c)
(reprogramming); & 403-4(d) (transfer of finds and/or personnel).
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Intelligence Community, but the National Security Agency (NSA), National Imagery and
Mapping Agency (NIMA), National Reconnaissance Office (NRO), Defense Intelligence Agency
(DIA), and military service intelligence arms are all DOD organizations and report first and
foremost to the Secretary of Defense. (The heads of NSA and DIA, and the service intelligence
agencies are active duty military officers, and the NRO Director is an Undersecretary o f the Air
Force.) Only the CIA itself and a comparatively tiny "Community Management Staff' (CMS)
is unambiguously under the authority of the DCI.
The domination of the IC by the Department of Defense is perhaps the most fundamental
bureaucratic fact of life for anyone who aspires to manage the Community as a whole. As one
organizational history of the CIA has noted, "Niue DCI never became the manager of the
Intelligence Community," and decisions over the years to "us[e] declining resources first and
foremost to support military operations effectively blunted the Congressional emphasis upon
centralization by limiting the wherewithal that DCIs and agency heads could devote to national
and strategic objectives."'
Nor is this arrangement entirely accidental. This awkward balance of authority between
DCI and the Secretary of Defense reflects an inability finally to decide whether agencies such as
NSA and NIMA are "really" national intelligence agencies that should report to the DCI or
"combat support agencies" that should report to DOD. The U.S. military, of course, is an
enorrmus and, in wartime, perhaps the most important consumer of certain sorts of
intelligence product, particularly signals intelligence (SIGINT), photographic and other imagery
(IMINT), and mapping products. Without immediate access to such support, our armed forces
would have difficulty knowing where they are, where the enemy is, and what the enemy is doing.
The reason that the military possesses integral service intelligence arms and cryptologic support
components, in fict, is precisely because the imperatives of war planning and operational
decision-making do not permit these functions to be entirely separated from the military chain of
command. This attitude, however, also exists at the national level: DOD officials insist that
organizations such as NSA and NIMA are, above all else, "combat support agencies." Implicitly,
this means that in any unresolvable resource-allocation conflict between the Secretary of Defense
and the DCI, the Secretary must prevail.
The difficulty lies in the fict that the DOD components of the Intelligence Community are
also vital parts of the national intelligence system, and provide crucial intelligence products to
15
Warner, supra, at 8 & 17.
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national-level consumers, including the President. To the extent that DOD's domination of IC
resources impedes the Community's ability to provide adequate national-level support and to
the extent that such high-level bureaucratic stand-offs hamper the IC's ability to reorient it self
against dangerous emerging threats, or to reform itself in response to intelligence failures we
face grave challenges.
These problems have led many to suggest the need finally to empower the DCI to act as
the true head of the U.S. Intelligence Community. At one pole, such suggestions have included
proposals to give the DCI full budgetary and management authority over all IC components
effectively taking them out of DOD and establishing the DCI as something akin to a cabinet-level
"Secretary of Intelligence." (Former National Security Advisor Brent Scowcroft has allegedly
recommended something to this effect, but his report has never been released supposedly due to
Defense Department opposition.) At the other pole, some in Congress have suggested merely
ending the "dual-hatted" nature of the DCI's office by separating the roles of DCI and CIA
Director.
In my view, these two poles leave us with a Hobson's choice between the virtually
unworkable and the clearly undesirable. Creating a true DCI would entail removing dozens of
billions of dollars of annual budgets from the Defense Department, and depriving it of
"ownership" over "its" "combat support organizations." In contemporary Washington
bureaucratic politics, this would be a daunting challenge; DOD and its Congressional allies would
make such centralization an uphill battle, to say the least.
Indeed, if anything, the trend in the post-September 11 world is against DCI
centralization DOD has asked for, and Congress has now established, a new Undersecretary of
Defense for Intelligence (USDI) to oversee and coordinate DOD's intelligence components,
creating what may well be, in efEct, a Pentagon DCI and one, moreover, likely to have at.least
as much influence over the agencies in question than the DCI himself DOD's Joint Intelligence
Task Force for Counterterrorism (JITF-CT) already reproduces at least some of the analytical
functions of the CIA's CTC, DIA analysts already supply all-source analysis across a wide range
of functional and regional specialties, and press accounts suggest that the Pentagon is increasingly
interested in establishing its own parallel covert action capability using Special Operations Forces
(SOF) troops.16 DOD is, in short, creating a parallel universe of intelligence organs increasingly
16
Susan Schmidt & Thomas E. Ricks, "Pentagon Plans Shift in War cn Terror; Special Operations
Commands Role to Grow With Covert Approach," Washington Post (September 18, 2002), at
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independent o f the DCI. Particularly under a DCI who prizes his role as CIA Director above his
Community responsibilities, the prospects for DCI centralization are grim indeed.
On the other hand, without more, proposals merely to separate the DCI's office from that
of the CIA Director will likely only make the situation worse. At the moment, one of the few
sources of bureaucratic power the DCI enjoys is his "ownership" of what is, in theory at least, the
nation's premier intelligence analysis organization and its only specialist HUMINT collection
agency the CIA. Heading the CIA gives the DCI at least "a seat at the table" in national-level
debates: a DCI without the limited but non-trivial bureaucratic clout of the CIA behind him would
find himself even more marginalized and ineffective than the office is today.
My experience with the fragmented and disjointed Community management process have
led nr to conclude that the best answer is probably to give more management and budgetary
authority over IC organs to an effective DCI focused upon issues of IC coordination and
management as the Joint Inquiry has suggested by urging that we consider the creation of a
"Director of National Intelligence" with powerfill new Comramity-management authority.
Because he will need to use these new powers to arbitrate between and set policies for self-
interested bureaucratic "players" within the Intelligence Community rather than be one of them,
this augmented DCI (or DNI, as the case may be) should not simultaneously hold the position of
CIA Director.
The "combat support" argument is, in my view, overblown. There is nothing to suggest
that organizations like NSA and NIMA would deny crucial support to the Defense Department
the moment that they were taken out of the DOD chain of command. Any lingering doubts about
the effectiveness of the Pentagon's "combat support" from intelligence agencies could be allayed
by improving the effectiveness and resources devoted to the services' organic intelligence and
cryptologic components. (Civilian directors of NSA and NIMA appointed with DCI and
Secretary of Dense concurrance could serve as Assistant DCIs for SIGINT and IMINT,
respectively, serving alongside an Assistant DCI for Military Intelligence, a high-ranking Military
officer charged with ensuring that the IC is at all times aware of and responsive to military needs.)
Best of all, an Intelligence Community finally capable of being coherently managed as a
Community would be able to reform and improve itself in numerous ways that prove frustratingly
elusive today ultimately providing both its national-level civilian and its warfighter customers
with better support.
Al.
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Congress took a remarkable step in reforming the basic structure of the military command
system in 1986 with the passage of the Goldwater-Nichols legislation." This landmark legislation
which reformed the roles of the CliieS of Staff and created an entirely new system of regional
unified commanders tilted at what were thought to be bureaucratic windmills and ran into
fearsome bureaucratic opposition, but it succeeded brilliantly and helped our armed forces find
new strength and coherence in war-winning "joint" operations. The success of the Goldwater-
Nichols reforms should.be a lesson to Intelligence Community reformers today, for it teaches that
it is possible sometimes to overcome entrenched bureaucratic interests and forge a much more
effective whole out of a motley and disputatious collection of parts.
Unfortunately, Congress, the Administration, and the American public have yet to engage
in much of a debate about these issues. Perhaps nothing can shock us into serious debates about
the fundamental structure of our Intelligence Community if the horror of September 11 cannot,
but I am hopeful that the SSCI and HPSCI will make these issues a centerpiece of their agenda
for the 108th Congress. I urge them strongly to do so.
C. An Agile and Responsive IC
As the 108th Congress takes up these reform challenges, I would like to offer some
additional suggestions that I believe would help the IC both meet the challenges it faces today and
be prepared for those it may face tomorrow. One of the roots of our problems in coping with
threats such as that posed by Al-Qa'ida beginning in the 1990s is that the tools with which we
have had to fight transnational terrorism were designed for another era. The U.S. Intelligence
Community is hard-wired to fight the Cold War, engineered in order to do a superlative job of
attacking the intelligence "targets" presented by a totalitarian superpower rival but nowhere near
as agile and responsive to vague, shifting transnational threats as we have needed it to be.
� The lesson of September 11, therefore, should be not simply that we need to reform
ourselves so as to be able to address the terrorist threat bit also that we need an Intelligence
Community agile enough to evolve as threats evolve, on a continuing basis. Hard-wiring the IC
in order to fight terrorists, I should emphasize, is precisely the wrong answer, because such an
approach would surely leave us unprepared for the next major threat, whatever it turns out to be.
Our task must be to ensure that whatever we do to "fix" the problems that helped leave us
unprepared in the autumn of 2001, we make sure that the Intelligence Community can change,
17
Public Law 99-433 (October 1, 1986).
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adapt, and move in unanticipated directions in the future. Otherwise the IC will liice little but a
future punctuated by more intelligence failures, more Congressional inquiries, and more
Commissions.
This is perhaps the most powerful argument for strengthening the DCI's ability to lead the
Intelligence Community as a community, insofar as it is notoriously difficult to reorient large
bureaucracies under the best of circumstances, and virtually impossible to do so simply by
persuasion. But there are additional steps that Congress and the Administration should consider
in order to make the IC "quicker on its feet" in anticipating and preparing for and, where that
fails, responding to future threats.
Well short of putting the entire Community under a "Secretary for Intelligence," one way
to greatly augnrnt the ability of the Intelligence Community to adapt flexibly and effectively to
future threats would be to increase the degree of uniformity in its personnel managerrent system.
A homogenized payment and benefits structure for the Community would not necessarily require
putting the agencies themselves under the DCI's operational command. It would, however,
enable the IC to move personnel and reorganize organizational structures on an ad hoc basis
much more effectively in response to future developments.
Achieving such organizational flexibility and the conceptual flexibility that must
accompany it will be essential if the Community is not simply to replace its dangerous and
inflexible Cold War hard-wiring with an equally rigid and unadaptable CT paradigm. This is what
might be called the "meta-lesson" of our current round of "lessons learned" studies of intelligence
failures: we must not only learn the lessons of the past but learn how to keep learning lessons as
we change and adapt in the future. Adopting uniform personnel standards would help the
Community ensure that its personnel and organizational units remain unique and valuable
individual resources but they would also become administratively fungible assets, capable of
being reorganized and redirected efficiently as circumstances demand.
The CIA, to its credit, has experimented in recent years with approaches to organizing
"virtual stations" ad hoc issue-focused organizations mimicking the structure of an overseas
Directorate of Operations outpost, but simply existing within CIA Headquarters. In the future,
the IC as a whole will need to learn from (and improve upon) this concept, by developing ways to
"swarm" personnel and resources from various portions of the Community upon issues of
particular importance as circumstances demand. At the same time, the IC will have to be willing
to move personnel resources out of programs and organizations that no longer fulfil their
missions, or whose targets have been superseded in priority lists by more important threats. We
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must, in short, be willing to buikl new structures and raze old ones in a continual process of
"creative destruction" not unlike competitive corporate approaches used in the private sector.
Concomitant with this, it will also be necessary to break the artificial definitional
monopoly within the IC that holds that only intelligence professionals actually employed by the
traditional collection agencies can engage in collection or analysis of those agencies' signature
types of intelligence. We should be open to unconventional HUM1NT collection opportunities,
for instance, arkl should not deny non-CIA analysts a chance to provide the analytical "value-
added" that can be obtained by making them more aware than they are today of the origins of
their information. And we should reject the self-satisfied assumptions of NSA managers that only
NSA personnel can be trusted with analyzing "raw" SIGINT data. (Unfortunately, the
Administration seems to be heading in precisely the wrong direction in this respect. If recent
reports are to be believed, the President intends to ratify the information-monopolistic status quo
by issuing an Executive Order to make Homeland Security intelligence analysts dependent upon
the traditional IC collection bureaucracies to tell these analysts what information is relevant:8)
The traditional collection agencies do have valuable expertise in "their" areas, but this
expertise should be used to enrich the Community's pool of intelligence expertise rather than
simply as barriers to entry wielded in defense of bureaucratic and financial "turf" Instead, the
collection agencies should be charged with certifying but not running or controlling training
curricula within other IC agencies that will produce competent specialists in the relevant fields. A
SIGINT analyst, for instance, should be properly trained to meet the relevant professional
standards (e.g., compliance with USS1D 18), but there is no reason why he must receive his
paycheck from NSA in order to make important contributions to the Community. Agencies such
as CIA and NSA with special expertise in a particular "INT" should become jealous advocates
and guardians of high professional standards within the Community as a whole, but they should
no longer be permitted to use their expertise to maintain parochial information monopolies.
Fundamentally, Congress and the Administration should be willing, over the coming
months, carefully to examine the basic structure of the intelligence provisions of the National
Security Act of 1947 in light ofthe circumstances and challenges our country faces today. At a
time in which the State Department and the military services provided the only thing resembling
national-level information collection and analytical expertise in the entire U.S. Government, the
18
See, e.g., Dan Eggen & John Mintz, "Homeland Security Won't Have Diet of Raw Intelligence,"
Washington Post (December 6, 2002) at 43.
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Act set up a "central" intelligence agency to be an objective source of information and to stand
above the bureaucratic political infighting of the day. It was to be what Colonel William ("Wild
Bill") Donovan had called for in October 1946: "a centralized, impartial, independent agency that
is qualified to meet the atomic age."9 In 2002, however, the CIA no longer quite fulfils that
function, now existing as one of many bureaucratic fiefdoms within a sprawling and Defe nse-
dominated Intelligence Community.
One possibility to which Congress and the Administration should give very careful
consideration is whether we should return to the conceptual inspiration behind the intelligence-
related provisions of the National Security Act of 1947: the need for a "central" national level
knowledge-compiling entity standing above and independent from the disputatious bureaucracies.
Returning to these roots might suggest the need to separate our country's "central" intelligence
analytical functions from the resource-hungry collection responsibilities that make agencies into
self-interested bureaucratic "players" that is, to separate human intelligence (HUMINT)
collection into a specialized service that would, along with other collection agencies, feed
information into a national-level purely analytical organization built around the core of the CIA's
Directorate of Intelligence. (The resulting pure-analysis organization would arguably be the sole
institution that could appropriately be run directly by a new Director of National Intelligence, who
would serve as the overall head of the IC and as the President's principal intelligence advisor.)
Whether or not we determine that this is the right answer, however and h owsoever we
determine that any such agency would interact with a more empowered DCI our opportunity
seriously to consider such changes is now.
Information-Sharing
Perhaps the most fundamental problem illustrated by the findings of the Joint Inquiry Staff
(JIS) in connection with the intelligence failures leading up to September 11 relates to the
problem of persuading U.S. Intelligence Community agencies to share information efficiently and
19
Thomas F. Troy, Donovan and the CIA: A History of the Establishment of the Central
Intelligence Agency (Langley, Virginia: CIA Center fa- the Study of Intelligence, 1981), supra,
at 382 (quoting Dcnovan); see also id. at 408 (noting that "Congress wanted CIA. [to be] free
from undue military influence as well as Department ccntrol."); id. at 410 (noting that Donovan
"recognized that the appropriate status for intelligence was independence and that such
independence required the establishment of an 'agency' free of any other department of
government").
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effectively. This problem is inextricably tied up with the bngstanding problem of ensuring quality
intelligence analysis within the Community, for without access to a broad range of infoimation
upon which to draw inferences and base conclusions, even the best individual analysts necessarily
find themselves gravely handicapped.
There exists a fundamental tension in intelligence work between the need for security and
the need for sharing information. Increasing the number of persons having access to a particular
item of information inevitably leads to at least some increase in the lilcelihood of its compromise,
either accidentally or deliberately (e.g., in a "leak" to the press or to a foreign power through
espionage). Agencies which possess sensitive information, therefore, tend to prefer to restrict
others' access to "their" information. (This is particularly true in an Intelligence Community
institutional culture in which knowledge literally is power in which the bureaucratic importance
of an agency depends upon the supposedly "unique" contributions to national security it can make
by ramopolizing control of "its" data-stream.)
On the other hand, perfectly secure information is perfectly useless information. Since the
purpose of intelligence-gathering is to inform decision-making, restricting access inevitably
degrades the value of having intelligence collectors in the first place. For good analysis to be
possible, expert analysts must be able to perform what is called "all-source intelligence fusion"
drawing upon the available breadth o f information in order to tease patterns of "signal" out of the
mass of irrelevant and distracting 'noise" that comprehensive collection invariably brings in. If
good analysis is to form the basis for intelligent policy, moreover, information must be passed
along to the policy community in order to inform their actions.
This tension between security and sharing has been part of the fabric of intelligence policy
for years, perhaps manifesting itself most clearly in U. S. -British debates during the Second World
War over when (or whether) to share high-grade communications intelligence with operational
commanders who needed such information in order to win the war against Nazi Germany.'
Today, similar debates continue as it becomes clear that the sort of sophisticated pattern-analysis
20
See, e.g., F.W. Winterbotham, The Ultra Secret (New York: Harper & Row, 1974), at 86; John
Winton, ULTRA At Sea (New York: Morrow & Co., 1988), at 148; Patrick Beesly, Very Special
Intelligence: The Story of the Admiralty's Operational Intelligence Centre, 1939-1945 (London:
Greenhill, 2000), 89, 98-100, 189-90, & 279; David Kohnen, "F-21 and F-21I: A Fresh Look
into the 'Secret Room," in New Interpretations in Naval History: Selected Papers from the
Fourteenth Naval History Symposium ed. Randy Carol Balano and Craig L. Symonds,
(Annapolis, Md.,: Naval Institute Press, 2001), at 304 & 327-29.
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and semi- or fully-automated "data-mining" capabilities that will be necessary for intelligence
analysis to keep up with complex transnational threats such as those presented by Usama bin
Laden's Al-Qa'ida organization are not compatible with traditional notions of inter-Intelligence
Community secrecy and restrictions upon access based upon an outsider's "need to know" as
determined by the agency information-holders themselves.
A. The Intelligence Community's Failure to "Connect the Dots" Prior to 9/11
The most fundamental problem identified by the JIS is our Intelligence Community's
inability to "connect the dots" available to it before September 11, 2001 about terrorists' interest
in attacking symbolic American targets. Despite a climax of concern during the surruner of 2001
about imminent attacks by Al-Qa'ida upon U.S. targets, the Intelligence Community (IC) failed to
understand the various bits and pieces of information it possessed about terrorists' interest in
using aircraft as weapons,' about their efforts to train pilots at U.S. flight schools,' about the
presence in the U.S. of Al-Qa'ida terrorists Khalid al-Milidhar and Nawafal-Hazmi, and about
Zacarias' Moussaoui's training at a U.S. flight school as being in some fashion related to each
other.
As the JIS concluded, the IC Jailed to "connect[} these individual warning flags to each
other, to the 'drumbeat' of threat reporting that had just occurred, or to the urgency of the 'war'
efforts against Usama bin Laden."' Having failed to make that connection, the IC was caught
flat-footed when the attack finally came. Accordingly, no effort to "fix" the problems highlighted
by September 11 should be taken seriously unless it attempts to address the pervasive problems of
information-sharing that afflict our Intelligence Community.
(1) Terrorist Names
21
22
23
For an account of information available to the Intelligence Community about terrorists' interest
in using aircraft as weapons, see JIS, written statement presented to SSCl/HPSCI joint hearing
(September 18, 2002), at 26-28.
For an account ofinformation available about terrorists' interest in acquiring aviaticn training at
U.S. flight schools, see JIS, written statement presented to SSCl/HPSCI joint hearing (September
24, 2002), at 3.
JIS, written statement presented to SSCUHPSCI joint hearing (September 18, 2002), at 10.
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One of the serious problems identified by our Joint Inquiry is the pervasive refusal of the
CIA, in the months and years before September 11, to share information about suspected
terrorists with the very U.S. Government officials whose responsibility it is to keep them out of
the United States: the State Department consular officials who issue visas and the INS officials
who man immigration posts at every American port of entry.
As the JIS outlined in its testimony before one of our joint SSCl/HPSCI hearings, the so-
called TIPOFF system provides the basic "watchlist" function by which consular and INS officials
check visa applicants or U.S. arrivals against lists of suspected terrorists and other undesirables.
With respect to suspected terrorists, the TIP OFF database is populated principally through the
submission ofnarres from the CIA Crucially, however, without CIA input, these' officials cannot
do their job and even terrorists known to the CIA will be able freely to acquire visas and be
granted entry if the CIA has neglected to share their names with TIPOFF.
Alarmingly, this is apparently precisely what happened for years, because CIA was
unwilling to share more than a small fraction of its infoinkition about suspected terrorists with
State and INS. Based upon clear internal guidance issued on December 11, 1999, the CIA was
required to pass to the TIP OFF program the names of all persons it suspected of being
terrorists.' Before September 11, however, the Agency did not consistently do this. Instead, it
oftenprovided the names of suspected terrorists to TIPOFF if the CIA already had information
indicating that the terrorist planned to travel to the United States.' Because of the practical
impossibility of knowing the personal travel plans, in advance, of every suspected terrorist in the
world, this inevitably meant that the CIA withheld hundreds or perhaps thousands ofnames from
the TIPOFF database names ofpersons who were thus free to obtain U.S. visas and walk
through INS booths without notice. Indeed, even though it signed an explicit Memorandum of
Understanding (MOU) in January 2001 with the FBI, NSA, and State Department on watchlist
24
25
CIA Office of Congressional Affairs Liaison Officer Gary Dionne, unclassified telephonic
communication to SSCI Minority Counsel Christopher Ford (December 9, 2002). The text of the
December 11, 1999 guidance, however, is still classified.
CIA officials have infcrmed SSCI staffthat this occurred because State Department officials felt
overly burdened with having to process all the names. Their account, however, is not caisistent
with the State Department complaints about CIA practice recorded by the JIS. See, e.g., JIS,
written statement presented to SSCl/HPSCI joint hearing (September 20, 2002), at 15. In any
event, it is clear that the "rules of the road" involved the CIA passing comparatively few names
in violation of its own rules by no one's account were the 1999 guidelines actually consistently
followed as written.
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procedures, State Department officials have complained to the JIS that the CIA still did not share
many of its terrorism-related Critical Intelligence Report (CIRs) with the =OFF program in the
months leading up to the September 11 attacks.'
What's more, the CIA apparently did not take its watchlisting responsibilities very
seriously even when it did see fit to pass some names to TIPOFF. According to the JIS, the CIA
provided its employees no training in this regard.' Indeed, one CIA official from the
Counterterrorism Center's special cell devoted to tracking Al-Qa'ida told the ES that he didn't
feel that his organization needed to worry about whether anyone watchlisted Al-Qa'ida
terrorists.' The CIA, therefore, apparently neither trained nor encouraged its employees to
follow its own rules on watchlisting e mbodied in the December 1999 guidance and they
clearly did not do so.'
Nor, despite repeated inquiries about watchlisting standards, did the CIA apparently ever
disclose the existence of this guidance to the JIS. As the JIS has recounted, Iv* were told that
there was, at the time, no formal system in place at the CTC for watchlisting suspected
terrorists.' This, however, was not true. As noted above, the CIA's December 1999 guidance
specifically provided watchlisting standards which were often ignored. By failing to provide this
information to the JIS, the CIA thus managed to keep the fact that it violated its own rules out of
the formal report of the Joint Inquiry.
The magnitude of the CIA's watchlisting failures and the potential impact o f this
information-hoarding upon our country's preparedness for terrorist attack may be seen in the
contrast between the CIA's pre-September 11 performance in this respect and its performance
after the attacks. Within a month after September 11, the CIA provided more than 1,500 CIRs to
26
27
28
29
30
JIS, written statement presented to SSCl/HPSCI joint hearing (September 20, 2002), at 15.
JIS, written statement presented to SSCl/HPSCI joint hearing (September 20, 2002), at 7-8.
JIS, written statement presented to SSCl/HPSCI jcint hearing (September 20, 2002), at 8.
Strangely, to judge from the testimcny given in Joint Inquiry hearings ty JIS representatives, the
JIS does not seem ever to haw dixovered that the CIA had "hard" guidance in place requiring
such watchlisting. The CIA, however, has now provided me with a copy of its classified
December 1999 guidance.
JIS, written statement presented to SSCl/HPSCI joint hearing (September 20, 2002), at 7.
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TIPOFF that had it had previously withheld. The State Department reported a 455 percent
increase in the number of names CIA provided during the months after the attacks with the total
provided rising from 1,761 during the three months before September 11 to 4,251 in the three
months afterwards.' But for the shock of September 11, these thousands of potential terrorists
would presumably still be free to obtain visas and enter the United States without anyone asking
any questions, thanks to the CIA's apparent belief that only it can be trusted with its information.
As it turns out, two of the September 11 hijackers did precisely this.
(2) The al-Mihdhar and al-Hazmi Story
What such watchlisting problems can mean in practice is illustrated by the failures of the
CIA and FBI in dealing with Al-Qa'ida-affiliated terrorists Khalid al-Mihdhar and Nawaf al-
Haani Their story is ably recounted by in the body ofthe JIS report, but its highlights are worth
repeating here. Al-Mihdhar and al-Hazmi attended a terrorist meeting in Kuala Lumpur,
Malaysia, in early January 2000.32 This meeting was known to and surveiled by the CIA,
which already knew that al-Mihdhar possessed a multiple-entry visa permitting him to travel to the
United States. The National Security Agency (NSA) also independently possessed infonmtion
linking al-Hazmi to Al-Qa' ida. Neither the CIA nor NSA, however, saw fit to provide their
names to the TIPOFF database.' There is apparently some confusion over whether the CIA told
the FBI anything about al-Milidhar and al-Hazmi. CIA e-mail traffic reviewed by the JIS,
however, suggests that the CIA did brief the FBI in general terms. The CIA, however, still did
not bother to tell the FBI that al-Mihdhar had a multiple-entry visa that would allow him to enter
the United States.'
In early March 2000, the CIA karned that al-Hazmi had arrived in Los Angeles on
January 15. Despite having just learned of the presence in this country of an Al-Qa'ida terrorist,
the CIA told no one about this. The internal cable transmitting this information, in fact, contained
31
ITS, written statement presented to SSCl/HPSCI jcint hearing (September 20, 2002), at 15.
32
JIS, written statement presented to SSCl/HPSCI jcint hearing (September 20, 2002), at 5.
33
ITS, written statement presented to SSCl/HPSCI joint hearing (September 20, 2002), at 6.
34
ITS, written statement presented to SSCl/HPSCI joint hearing (September 20, 2002), at 6-7.
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the notation: "Action Required: None, FYI."35 This information came at the height of the U.S.
Intelligence Community's alarm over Al-Qa'ida's "Millemium Plot," and al-Hazmi's arrival had
occurred at about the same time the CIA knew that Al-Qa'ida terrorist Ahmed Ressam was also
supposed to have arrived in Los Angeles to conduct terrorism operations.36 Still, however, the
CIA refused to notify anyone of al- Haz mi's presence in the country.
By this point, both al-Mihdhar and al-Hazmi both terrorists known to the CIA were
living in San Diego under their true names. They signed these names on their rental agreement,
both used their real names in taking flight school training in May 2000, and al-Milidhar even used
his real name in obtaining a motor vehicle identification card from the State of California." In
July 2000, al-Hazrni even applied to the INS for an extension of his visa, sending in this
application usingboth his real name and his current address in San Diego (where he would remain
until that Decernber).38 INS, of course, had no reason to be concerned, since the CIA had
withheld the two terrorists' names from TIPOFF. Nor did the FBI have any reason to look for
them e.g., by conducting a basic Internet search for their names or by querying its informants in
Southern California since the last it had heard from CIA was that these two terrorists were
overseas.
The CIA's failure to watchlist al-Mihdhar and al-Hazmi became even more alarming and
inexplicable in January 2001, when the CIA discovered that the Malaysia meeting had also been
attended by a suspect in the USS Cole bombing. This presumably made the two terrorists even
more interesting to the CIA and their known presence in the U.S. even more dangerous, by
confirming their linkages to Al-Qa'ida operational cells but the CIA still did not bother to
inform 11YOFF. This failure was particularly damaging because al-Mihdhar was overseas at the
time: putting his name on the watchlist would have enabled INS agents to stop him at the
35 JIS, written statement presented to SSCl/HPSCI joint hearing (September 20, 2002), at 7; see
also generally CIA officer, written statement presented to SSCl/HPSCI joint hearing (September
20, 2002), at 3.
36 JIS, written statement presented to SSCl/HPSCI jcint hearing (September 20, 2002), at 8 & 10.
37 JIS, written statement presented to SSCl/HPSCI jcint hearing (September 20, 2002), at 8.
38
JIS, written statement presented to SSCUHPSCI jcint hearing (September 20, 2002), at 8-9.
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border."
Even when given the opportunity to tell the FBI in face to face meetings about the
presence of these two terrorists in the United States, the CIA refused. At a meeting in June 2001
with FBI officials from the New York Field Office who were working on the USS Cole case, a
CIA official refused to tell them that al-Mihdhar and al-Hazmi had come to the United States.4�
Meanwhile, Khalid al-Mihdhar was in Jeddah, Saudi Arabia, and applied for a new U.S.
visa in June 2001. The State Department officials who took this application appear to have
followed procedures and checked his name against their CLASS database, which incorporates
TIPOFF watchlist information. Because CIA continued to refuse to put the name o f this Al-
Qa'ida terrorist into TIPOFF, however, no CLASS "hits" occurred, and al-Mihdhar was given a
visa and returned to the United States unmolested in July.4'
The CIA only decided to watchlist al-Hazmi and al-Mldhar in late August 2001, by which
point they were already in the United States and in the final stages of preparing for the September
11 attacks.' By this point, tragically, it was too late for the FBI hamstrung by its own
investigative regulations to stop them. Although the FBI scrambled in late August and early
September to locate the two terrorists in the United States," it denied itself the services of any of
its own agents assigned to criminal work and refused even to conduct a basic Internet search that
would have revealed al-Hazmi and al-Mihdhar living under their true names in San Diego.
(According to testimony from an FBI agent in New York who conducted just such an Internet
39
40
41
42
43
JIS, written statement presented to SSCl/HPSCI joint hearing (September 20, 2002), at 9; see
also CIA official, written statement presented to SSCl/HPSCI joint hearing (September 20,
2002), at 4; Michael Rolince, written statement presented to SSCl/HPSCI joint hearing
(September 20, 2002), at 2.
JIS, written statement presented to SSCl/HPSCI joint hearing (September 20, 2002), at 21; see
also id. at 10.
JIS, written statement presented to SSCl/HPSCI joint hearing (September 20, 2002), at 10.
JIS, written statement presented to SSCl/HPSCI joint hearing (September 20, 2002), at 10; see
also Rolince, supra, at 3.
JIS, written statement presented to SSCl/HPSCI jcint hearing (September 20, 2002), at 11.
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search after the September 11 attacks, finding al-Mihdhar's address "within hours.�") It also
denied itself any assistance that could have been obtained from Treasury officials in tracking down
al-Milidbar and al-Hazmi through their credit card or banking transactions. As it turned out,
however, on September 11, 2001, the two men boarded Anrrican Airlines Flight 77, and helped
fly it into the Pentagon.
(3) The "Phoenix Memo"
The affair of the FBI Electronic Communication (EC) sent by the Phoenix field office to
FBI Headquarters in order to warn officials about potential dangers from Al-Qa'ida-affiliated
individuals training at U.S. flight schools, also illustrates the tremendous difficulty our Intelligence
Community has had with sharing information and "connecting the dots" particularly where the
FBI is concerned.
The FBI special agent in Phoenix who sent the EC to headquarters on July 10, 2001,
addressed his memorandum to the Usama bin Laden Unit (UBLU) and the Radical Fundamentalist
Unit (RFU) within the Bureau's counterterrorist organization. Headquarters personnel, however,
decided that no folbw-up was needed, and no managers actually took part in this decision or even
saw the memorandum before the September 11 attacks.' The CIA was made aware of the
Phoenix special agent's concerns about flight schools, but it offered no feedback" despite the
information the CIA possessed about terrorists' interest in using aircraft as weapons. Nor did the
new FBI officials who saw the Phoenix EC at headquarters ever connect these concerns with the
body of information already in the FBI's possession about terrorists' interest in obtaining training
at U.S. flight schools.' The full contents of the "Phoenix Memo" have yet to be made public, but
it is astonishing that so little was made of it, especially since it drew readers' attention to certain
information already in the FBI's possession suggesting a very specific reason to be alarmed about
44
FBI Agent from New York Field Office, testimony before joint SSCl/HPCSI hearing (September
20, 2002), available from Federal News Service (response to question from Senator Shelby).
45
HS, written statement presented to SSCl/HPSCI joint hearing (September 24, 2002), at 2.
46
JIS, written statement presented to SSCl/HPSCI joint hearing (September 24, 2002), at 6.
47
JIS, written statement presented to SSCl/HPSCI jcint hearing (September 24, 2002), at 11-13.
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one particular foreign student at an aviation university in the United States."
(4) Missed Opportunities
Altogether, the al-Miladhar/al-Hazmi and "Phoenix EC" stories suggest both the potential
of sophisticated information-sharing and good information-empowered analysis and the dangers
of failing properly to "connect the dots." It is impossible to know, of course, whether the
September 11 plot could have been disrupted or at least significantly delayed had the FBI and
CIA acted properly in sharing and understanding iniormation available to them. The evidence,
however, suggests a number of pregnant "what ifs":
If the CIA had been willing to share its information about al-Mihdhar and
al-Hazmi with consular and INS officials through the TIPOFF program,
one or both of them might have been apprehended upon entering or
reentering the United States after their Malaysia nreting.
If the CIA had informed the FBI when it first knew that al-Mihdhar and al-
Hazmi were in the United States and the FBI had perm itted itself to do
common-sense things like use the Internet these two terrorists might have
been located at their home in San Diego (or in flight school in the area)
long before the September 11 attacks. Surveillance of them might have led
the FBI to other hijackers, or to operational cell leaders, or their
deportation might have disrupted the plot.
If the FBI had been able to "connect the dots" between the Phoenix EC
and the body of information already in the FBI's possession about terrorist
interest in U.S. flight schools and information held by the Intelligence
Community about terrorists' interest in using aircraft as weapons it might
have been better able to investigate Za car ias Moussaoui and obtain
information on son r of the other September 11 hijackers from information
in Mouassaoui's computer and in his personal effects.
48
FBI Special Agent in Phoenix, Arizona, electronic communicaticn addressed to Radical
Fundamentalist Unit etal. (July 10, 2001), at 5. The FBI declined to declassify any more specific
an account of this infcrmation.
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If the FBI had understood the full significance of the Phoenix EC in light of
this other information, they might have begun to conduct the follow-up
work recommended by the Phoenix special agent. In May 2001, the FBI
had already briefly considered opening an investigation upon one of the
individuals named in the EC, but this was dropped when it was discovered
he was out of the country at the time. Had the Phoenix EC spurred serious
follow-up by FBI Headquarters, however, this individual's name might
have been added to the TIPOFF watchlist leading investigators right to
him upon his subsequent retum to the United States. Restarting the
aborted investigation of this individual would likely also have led the FBI
to his radical fundamentalist flight school classmate in Arizona, September
11 hijacker Hani Hanjour."
The September 11 story, therefore, should be an object lesson in the perils of failing to share
information promptly and efficiently between (and within) organizations, and in the need to ensure
that intelligence analysis is conducted on a truly "all-source" basis by experts permitted to access
all relevant information no matter where in the Intelligence Community it happens to reside.
B. Pervasive Problems of Information-Sharing
That effective information-sharing and truly all-source analysis should have been such a
scarce commodity in counterterrorism work during the months and years leading up to September
11 years during which the Director of Central Intelligence supposedly believed the U.S.
Intelligence Community to be "at war" with Al-Q a'ida and made fighting it his highest priority is
a testament to the recurring problems of agency parochialism and information-hoarding. Even
Community-wide attempts to "fix" the problem of information-sharing, such as the DCI's ongoing
development of the computerized Intelligence Community-Wide System for Information Sharing
(ICSIS), simply replicate the problem. ICSIS will be built around a series of agency-specific
electronic "shared spaces" accessible to users of the system, but populated only with such
information as each agency sees fit to permit others to see.' ICSIS will, in other words,
49
JIS, written statement presented to SSCl/HPSCI jcint hearing (September 24, 2002), at 10.
It is not even clear that ICSIS will meet the Community's needs even on its own terms. In
January 2001, the NIMA Commission report recommended that NIMA begin building a new
information-management system essentially from scratch, notwithstanding ICSIS planned
deployment over the next ten years. See Dr. Robert C. Norris, written statement presented to
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presumably speed access to what agencies are willing to share, but it will do nothing to address
broader issues of their unwillingness to permit experts from other intelligence agencies any
window upon the data-streams the monopolization of which is the source of each host agency's
bureaucratic power.'
Such information-hoarding thus goes deeper than simply being "policy," often reaching the
level ofsimp reflex. For instance, the FBI for years monopolized the processing ofinformation
obtained from surveillance under the Foreign Intelligence Surveilance Act (FISA) even though
it fell hopelessly behind in processing FISA "raw data" and accumulated vast backlogs of
untranslated tapes that were of no use to anyone. Thus also does the NSA insist that only its
employees can be trusted with handling "raw" signals intelligence (SIGINT) data under the
standards prescribed by U.S. Signals Intelligence Directive (IJSSID) 18. And the CIA's
joint SSCl/HPSCI hearing (October 1, 2002), at 4.
51
The culture of information-holder control is formally enshrined most obviously in the "originator
control" (ORCON) classification caveat, which requires that anycne given access to a certain
piece of information not reveal it to anycne else without explicit permission from its a-iginating
agency. According to FBI official Michael Rolince, the ORCON caveat made it very difficult for
the FBI to pass intelligence information to criminal investigators in terrorism cases, "even for
lead purposes," because the originating agency (frequently the CIA) would refuse tO allow it. See
Michael Rolince, written statement presented to joint SSCUHPSCI hearing (September 20,
2002), at 4. According to the JIS, ORCON rules present a major problem to efficient
information-sharing, because they impose upon sharing arrangements a cumbersome and lengthy
case-by-case adjudication process. See JIS, written statement presented to joint SSCl/HPSCI
hearing (October 1, 2002), at 6. Our Joint Inquiry also discovered this to be the case,
encountering frequent delays allegedly because of the nece%ity of clearing ORCON transmittals
to Congress.
In travels and discussions with U.S. Allies currently engaged in helping us fight the war
against terrorism, SSCI Members and staff have heard many complaints that the U.S.
classification caveat "no foreign" (NOFORN) has also unnecessarily impeded information-
sharing. Even cur closest military allies haw privately complained about what they describe as
the unnecessary and reflexive use of the NOFORN caveat by U.S. officials. This has frequently
resulted in U.S. intelligence officers stamping "NOFORN" on information provided to them by
those same allies, denying these contributors to our war and intelligence efforts the ability to see
the intelligence products we make out of their information. The Intelligence Committees
attempted to draw attention to this "NOFORN problem" in � 831 of the Fiscal Year 2003
Intelligence Authorization Bill (Public Law 107-306), which requires that the DCI and the
Secretary of Defense report to Congress on the impact of NOFORN practices upon allied
intelligence-sharing relationships.
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Directorate of Operations usually refuses even to t CIA analysts see its own operational cable
traffic.
Reading the DCI's authority to protect intelligence "sources and methods" as barring the
disclosure of source information not simply to the public or to U.S. adversaries but also to anyone
else in the U.S. Intelligence Communio/, the CIA has proven unwilling to permit others a window
upon the context that source information can occasionally provide. CIA information-hoarding is
hardly a problem unique to the al-Mihdhar and al-Hazrni story. The CIA also refused requests by
U.S. Navy intelligence officers to turn over highly relevant information about the source of an
intelligence warning that might have prompted the Navy to direct the USS Cole away from
Yemen in October 2000.
As the Senate and House Intelligence Committees have seen repeatedly, the Intelligence
Community shares information poorly and reluctantly, at best. Especially since September 11,
Community representatives have assured us on innumerable occasions that their coordination and
information-sharing problems have been fixed: it has become their mantra that such cooperation is
now "seamless" aril "unprecedented." Even today, however, these sharing arrangements consist
principally of the assignment of agency personnel for reciprocal details at counterpart agencies
(e.g., FBI personnel at the CIA, and CIA personnel at the FBI). (Nor is the CIA's CTC much of
a "joint" center in the military sense, since the overwhelming majority of its personnel are CIA
empbyees. It was, and remains, a CIA organization.)
Such cross-detailing, as we have long known and as testimony before our Joint Inquiry
hearings has made doubly clear, is at best "an imperfect response" to the information-sharing
problem.
"The almost unanimous opinion among the detailing agencies is that
host agencies still restrict access to information and limit the
databases that can be queried by detailees from other agencies on
grounds of personnel or information security, and intelligence
policies."52
Such detailees commonly bring special experience and contextual knowledge to their
assignments that host-agency personnel may lack, but they are seldom .illy trusted by their host
52
JIS, written statement presented to SSCl/HPSCI jcint hearing (October 1, 2002), at 7.
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agencies and are seldom, if ever, permitted to know as much as "real" agency employees.
Moreover, even when detailees are given comparatively good access to host-agency information,
they are almost invariably prohibited from passing it back to their home organizations. This, for
instance, is the fate of non-FBI officials assigned to the FBI-run Joint Terrorism Tracking Task
Forces (JTTFs)." It is also that of DIA analysts cross-assigned to other IC agencies.' As Rear
Admiral Lowell Jacoby recounted in testimony submitted to the Joint Inquiry, cross-assigned
personnel are routinely denied "unfettered and unconditional access to all relevant . . .
information" and are often not permitted to transmit to their home agencies what they are
permitted to see.'
Today, the "seamless" and "unprecedented" information-sharing within our Intelligence
Community remains built around personal contacts and such cross-details. According to FBI
Counterterrorism chief Dale Watson, the FBI's arrangements with the CIA and with other U.S.
Government agencies revolve principally around the "exchange of working level personnel and
senior managers at the headquarters lever' This may represent considerable progress compared
with what prevailed before September 11, but it is woefully inadequate to our intelligence needs in
the 21" century.
The Future of Information-Sharing
(1) The Imperative of "Deep" Analyst Data-Access
The greatest contributions that intelligence analysis can make against vague, shifting, and
inherently ambiguous transnational threats such as international terrorism lie in analysts' capacity
to conduct "all-source fusion" of information performing the classic task of assembling
fragmentary information into actual or inferential "mosaics" and teasing useful "signals" out of the
53
JIS, written statement presented to SSCl/HPSCI jcint hearing (October 1, 2002), at 7-8.
54
ITS, written statement presented to SSCl/HPSCI jcint hearing (October 1,2002), at 13.
55
RADM Lowell E. Jacoby, written statement presented to SSCl/HPSCI joint hearing (October 1,
2002), at 5.
56
Dale Watson, written statement presented to SSCl/HPSCI jcint hearing (September 26, 2002), at
4 & 6.
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"noise" brought in by our wide-ranging rreans of intelligence collection. Problems of
information-hoarding and dysfunctional sharing methodologies, however, restrict analysts' ability
to apply their talent, training, and experience against intelligence targets in a truly all-source
fashion. If they are to be expected to have success against such modern targets in the future, we
will need to do a great deal to improve their ability to survey and draw patterns out of the masses
of data that exist in discrete and carefully-guarded bundles throughout the Intelligence
Community.
Intelligence collectors whose status and bureaucratic influence depends to no small
extent upon the monopolization of "their" information-stream often fail to recognize the
importance of providing analysts with "deep" access to data. The whole point of intelligence
analysis against transnational targets is to draw patterns out of a mass of seemingly unrelated
information, and it is crucial that the analysis of such patterns not be restricted only to personnel
from a single agency. As Acting DIA Director Lowell Jacoby observed in his written testimony
before the Joint Inquiry, "information considered irrelevant noise by one set of analysts may
provide critical clues or reveal significant relationships when subjected to analytic scrutiny by
another."57
This suggests that the fundamental intellectual assumptions that have guided our
Intelligence Community's approach to managing national security inforuration for half a century
may be in some respects crucially flawed, in that it may not be true that information-holders the
traditional arbiters of who can see "their" data are the entitie s best placed to determine whether
outsiders have any 'heed to know" data in their possession. Analysts who seek access to
information, it turns out, may well be the participants best equipped to determine what their
particular expertise and contextual understanding can bring to the analysis of certain types of data.
In this vein, the Military Intelligence Board has explicitly suggested that deep information-
sharing will require a re-examination of traditional concepts of "need to know" although, not
surprisingly, traditional collection agencies such as the CIA still contest this conclusion." Rear
Admiral Jacoby made the point firmly to our Joint Inquiry, writing that it should be the task, of
intelligence reformers
57
58
RADM Lowell E. Jacoby, written statement presented to SSCl/HPSCI joint hearing (October 1,
2002), at 4.
JIS, written statement presented to SSCl/HPSCI jcint hearing (October 1, 2002), at 12.
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"to create a new paradigm wherein 'ownership' of information
belonged with the analysts and not the collectors. In my opinion,
one of the most prolonged and troubling trends in the Intelligence
Community is the degree to which analysts while being expected
to incorporate the full range of source information into their
assessments have been systematically separated from the raw
material of their trade.""
Sadly and dangerously the result of this systematic separation is that "groundbreaking,
innovative, true all-source analysis" has become "the exception, not the rule" in today's
Intelligence Community.'
The imperative of "deep" analyst data-access is intertwined with another dynamic. For
some time, our ability to analyze information has been falling increasingly behind the enormous
volumes of information collected by our intelligence agencies. This imbalance between analysis
and collection has been the subject of numerous SSCI hearings. It has important implications for
the future of information-sharing within the Intelligence Community because it suggests that in
addition to being empowered to conduct true "all-source" analysis, our analysts will also need to
be supplied with powerful new tools if they are to work their analytical magic upon such large
information volumes.
As Rear Admiral Jacoby has suggested, the challenge for intelligence reform is thus
twofold: we must persuade information-holders to give analysts "deeper" and less conditional
access to data than they have ever before enjoyed, and we must equip analysts with the tools
needed to "mine" these data-streams for useful information.
"[W]e need to find a way to immediately and emphatically put the
'all' back into all-source analysis. . . . If we expect analysts to
perform at the level and speed expected in a counterterrorism
mission environment characterized by pop-up threats, fleeting
targets, and heavily veiled communication, they require immediate,
on-demand access to data from all sources and the ability to mine,
59
60
Jacoby, supra, at 6.
Id.
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manipulate, integrate, and display all relevant information!'
As noted previously, making information accessible necessarily exists in some tension with
keeping it secure and some balance must always be sought between usability and security. I
have come to the conclusion that our Intelligence Community, dominated by traditional coltction
agencies such as CIA and NSA that enjoy special status precisely because of the monopolization
of "their" data-streams (e.g., HUMINT and SIGIN1), has drawn this line in ways incompatible
with our intelligence needs in the 21" century. I thus believe, with RADM Jacoby, that we must
bring about a radical change in the access collection agencies give to all-source analysts, including
all-source analysts from outside their own ranks.
Such analyst empowerment must be accomplished in ways that do not leave our secrets
unduly vulnerable to compromise. It is thus the chalknge of reform not only to persuade
recalcitrant information-hoarders into making their databases available to sophisticated analytical
exploitation but also to ensure that the resulting information architectures are secure. There is no
reason why appropriately cleared analysts should not be trusted with such information: they are
no less patriotic, no less committed to protecting national security, and no less professional in
their fields than the collection bureaucrats who would presume to deny them access. That sail, of
course, there is every reason to develop comprehensive security protocols and accountability
systems to reduce the risk of espionage or accidental compromise that is to some degree inherent
in any expansion of the universe of persons given access.
-Fortunately, recent efforts to move forward in empowering analysts to conduct true all-
source analysis provide reasons for confidence that a workable solution is possible. As the
SSCI's Technical Advisory Group (TAG) a nonpartisan group principally composed of expert
private sector technologists and managers with the highest possible security clearances has
forcefully recommended, we must move forward into the realm of comprehensive databasing and
data-mining now, and the technology we need is either in existence already or well on its way to
development. As this technology advances, the TAG has suggested, agency resistance to such
developments in the name of "security" is looking increasingly like a mere excuse:
"The technology of mulii-level-security databases and computer
systems is highly developed, and all that stands between the present
61
RADM Lowell E. Jacoby, written statement presented to SSCl/HPSCI joint hearing (October 1,
2002), at 7.
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moment and the operation of such a database in the National
interest is political will."62
(2) Faltering Steps Forward
In efforts to meet the analytical challenge of transnational terrorism, both the Department
of Defense (DOD) and the Department o fJustice (DOT) have undertaken new experiments in all-
source fusion aimed at the targets. At DOD, the Defense Intelligence Agency set up an
organization it calls Joint Intelligence Task Force-Counterterrorism (JITF-CT). Established in the
wake of the bombing of the USS Cole by Al-Qa'ida members in October 2000, and augmented by
new assignments of personnel and resources after the September 11 attacks, JITF-CT aspires to
provide its analysts with deep data access sufficient to permit real all-source fusion. According to
RADM Jacoby, DIA's aim in establishing JITF-CT was to create a "stand-alone limited access
data repository accredited to host the entire range of terrorism related information, regardless of
source" including not just "highly compartmented intelligence," but also "law enforcement
information related to ongoing investigations or prosecutions, and security incident reporting
sometimes catalogues as criminal, rather than terrorism activity." JITF-CT seeks to "apply state-
of-the-practice technological tools and expertise that enhance opportunities for 'analytic
discovery."63
The Attorney General established his own Foreign Terrorist Tracking Task Force
(1.1,1TF) after September 11 in order to help develop "deep"-access data-mining techniques and
apply these new methodologies to the formidable challenge of catching terrorists operating within
'the United States. FTTTF is co-located with the Pentagon's Joint Counterintelligence
Assessment Group (JCAG, a.k.a. the Counterintelligence Field Activity, or CIFA), which
provides technical support." As with JITF-CT, FTTTF/JCAG aspires to bring about great
innovations in analyst access to and data-mining of disparate "all-source" data-streams.
The experience o f these innovative analytical cells, however, is simultaneously
62
63
64
SSCI Technical Advisory Group, "TAG Findings-&-Recommendatinos Post-9/11,"
memorandum to Senators Bob Graham and Richard Shelby (April 3, 2002), at 3.
RADM Lowell E. Jacoby, written statement presented to SSCl/HPSCI joint hearing (October 1,
2002), at 2.
JIS, written statement presented to SSCl/HPSCI joint hearing (October 1, 2002), at 15-16.
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encouraging and dispiriting. It is encouraging in that it shows a commendable interest in inter-
agency information-sharing on something approaching or at least aspiri ng to a truly all-source
basis, and enabled by state-of-the-art analytical tools. Nonetheless, it is also dispiriting in that the
available evidence suggests that these organizations are experiencing some notable "pushback" by
the traditional information-holders within the Intelligence Community. According to RADM
Jacoby, for instance, JITF-CT and DIA are still being denied information by "those intelligence
and law enforcement organizations that are the 'owners' or 'arbiters' of unshared information."
"This is no small problem" as Jacoby emphasizes, for although the
"un-shared information falls largely into the categories of
background and contextual data, sourcing, seemingly benign
activities, and the like. . . it is within these categories that the
critical 'connecting dot' may well be found."65
The CIA has its own "all-source" fusion cell devoted to terrorist targets, in the form of the
DCI's Counterterrorism Center (CTC). The CTC has performed this function for some years,
and not without some success. Even CTC has had difficulty penetrating the veil of agency
information-hoarding. Although as an operational arm of the CIA staffed principally by
Directorate of Operations personnel, the CTC is denied far less inforrnation in CIA operational
cables than organizations such as JITF-CT, it still encounters information-sharing problems in
dealing with other organizations. In particular, timely and effective access to law enforcement
information has been a traditional weakness at CTC, and the NSA has refused to permit the
Center access to "raw" SIGINT data. Moreover, another weakness of CTC as an analytical
fusion cell is precisely its operational focus: CTC plays a vital role in spearheading our country's
campaign to disrupt and dismember terrorist cells overseas, but this necessarily means that it
devotes less time to purely analytical work on terrorism than would otherwise be the case.
Indeed, not unlike FBI analysts diverted to "operational" support to ongoing investigations (see
below), CTC analysts apparently spend a great proportion of their time providing analytical
support to CT C's ongoing operations.
More than a year after September 11, there is still "no single agency or database or
computer network that integrates all counter terrorism information nationwile."" And there is no
65
66
RADM Lowell E. Jacoby, written statement presented to SSCITHPSCI joint hearing (October 1,
2002), at S.
JIS, written statement presented to SSCl/HPSCI joint hearing (October 1,2002), at 5.
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center devoted entirely to counterterrorist analysis on a truly all-source basis. As former
Representative Lee Hamilton emphasized in testimony before our Joint Inquiry, this is a
significant unmet need within the Intelligence Community.
"We need a center in the goverrurent for all intelligence foreign
and domestic to come together. There is currently no place in the
government where we put to data from all of our domestic
and foreign sources the CIA, FBI, Department of Defense,
Department of State, NSA, and other agencies."'
(3) Technological and Bureaucratic Empovterment
(a) "Total Information Awareness"
To help address the need for technological change to support the kind of analyst
empowerment that our Intelligence Community needs, Dr. Robert Norris of the National Defense
University and RADM Jacoby of DIA argued that the IC should take its cue from the private
sector and move toward a common data format standard. Such a standard, they suggested, would
allow data-interoperabiity as opposed to system interoperability, which is much more
challenging and is perhaps unattainable 68 across the Commun ity, or even across the federal
government as a whole.
"Interoperability at the data level is an absolutely necessary
attribute of a transformed intelligence environment because it
enables horizontal integration of information from all sources not
just intelligence and at all levels of classification."'
In this regard, RADM Jacoby suggested that the Community follow the commercial world in
67
68
69
Lee Hamilton, written statement presented to SSCl/HPSCI joint hearing (October 3, 2002), at 4.
Dr. Robert C. Norris, written statement presented to SSCl/HPSCI jcint hearing (October 1,
2002), at 10 (quoting LTG Peter Cuviello); see also id. at 7 (quoting Brig. Gen. Michael Ennis).
RADM Lowell E. Jacoby, written statement presented to SSCl/HPSCI joint hearing (October 1,
2002), at 8.
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embracing eXtensible Markup Language (XML) was a way to ensure such dat a-interoperabilit y.7�
Interestingly, an ongoing project by the Information Awareness Office (IA0) of the
Defense Advanced Research Projects Agency (DARPA) suggests that while such data-
interoperability would be enormously useful, it may not be an absolute prerequisite for meaningful
"deep access" data-mining within the Intelligence Community, the U.S. Govemnrnt, or beyond.
The SSCI has been following with great interest IAO's work on what it calls its "Total
Information Awareness" (T IA) project, for this project holds out the prospect of providing the
technological tools to achieve radical analyst empowerment vis-d-vis the IC's entrenched
information-holders.
TIA aspires to create the tools that would permit analysts to data-mine an indefinitely-
expandable universe of databases. These tools would not be database-specific, but would rather
be engineered in such a way as to allow databases to be added to the analytical mix as rapidly as
interface software could be programmed to recognize the data formats used in each new database
and to translate queries and apply specific "business rules" into a form usable therein. Through
this system, T IA hopes to enable an analyst to make search requests either on a name-by-name
basis or in order to apply sophisticated pattern-recognition software to each among a "cloud" of
remotely-distributed databases. Each analyst user would possess a complex set of individual
"credentials" which would be embedded in each query and "travel" with that query through the
database universe. These credentials would include information such as the user's access
permissions and the specific legal and policy authorities under which each query has been
conducted; they would tell the system what sorts of responses that user is permitted to get.'
Even when the user did not have authority to see certain types of information, the system would
be able to tell the analyst whether any data responsive to his query existed in any particular
database, allowing him to submit a request for access to higher authority.' Information
responsive to user queries would then be passed back through the system to an automated data
70
71
72
Id,
The TI A project also contemplates a system o f "se lective revelation of in forma don, " whereby
initial respcnses to a query would indicate merely the presence of responsive entries or patterns.
Subsequent queries and per haps additional levels of authority would be needed for the analyst
to "bore deeper" into the data.
This helps analysts get avoid the "you don't know what you don't know" dilemma, yet without
compromising particularly sensitive information to unauthorized individuals.
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repository, where it would be stored for analytical exploitation.'
The TIA approach thus has much to recommend it as a potential solution to the imperative
of deep data-access and analyst empowerment within a 21"-century Intelligence Community. If
pursued with care and determination, it has the potential to break down the parochial agency
information "stovepipes" and permit nearly pure all-source analysis for the first time yet without
unmanageable security difficulties. If done right, moreover, TIA would be infinitely scalable:
expandable to as many databases as our lawyers and policymakers deem to be appropriate.'
TIA promises to be an enormously Useful tool that can be applied to whatever data we feel
comfortable permitting it to access. How broadly it will ultimately be used is a matter for
policymakers to decide if and when the program bears fruit. It is worth emphasizing, however,
that TIA would provide unprecedented value-added even if app lied exclusively within the current
Intelligence Community as a means of finally providing analysts deep but controlled and
accountable access to the databases of collection and analytical agencies alike. It would also be
useful if applied to broader U.S. Government information holdings, subject to laws restricting the
use of tax return information, census data, and other information. Ultimately, we might choose to
permit TIA to work against some of the civilian "transactional space" in commercially-available
73 IAO officials have told committee staff that DARPA envisions the possibility of supporting
analysts with semi-automated functions that would "learn" from the behavior of large numbers of
other users on the system, "pushing" data out to uxrs working on specific topics in ways lcosely
analogous to the way in which the software at Amazon. corn recommends books to browsers based
upon what other customers who selected a particular title also picked.
74
What's more, the TIA architecture is being designed to create elaborate audit trails upon the
initiation of each qua-y. These audit trails, which would be accessible to intelligence oversight
organs, would be specially encrypted and secured against tampering, and would allow overseers
to hold each accredited user accountable for activity undertaken within the system and
information gleaned therefrom. Moreover, developing TIA will apparently not involve the use of
any data from actual persons (e.g., information about real Americans). IA0 plans to construct a
"virtual" economy filled with huge numbers of "synthetic" personal transactions by millions of
hypothesized people. A "red team" would develop and "carry oue' attacks within this virtual
environment, role-playing the parts of individual terrorists in order to create transactional trails.
The software developers would then try to develop programs to identify these patterns of
"terrorist" transactions, picking them out of the "noise" of the "synthetic" civilian transactions in
which they will be embedded. This approach, DARPA hopes, will identify the best ways to
identify real terrorists while minimizing the system's intrusion upon the transactional records of
non-terrorists.
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databases which are thready publicly and legally available today to marketers, credit card
companies, criminals, and terrorists alike. The point for civil libertarians to remember is that
policymakers can choose to restrict TIA's application however they see fit: it will be applied only
against the data-streams that our policymakers and our laws permit.
I mention TIA here at some length because it represents, in my view, precisely the kind of
innovative, "out of the box" thinking of which I have long been speaking and which Americans
have a right to expect from their Intelligence Community in the wake of a devastating surprise
attack that left 3,000 of their countrymen dead. It is unfortunate that thinking of this sort is most
obvious in the Defense Department rather than among Intelligence Community leaders, and more
unfortunate still that projects like TIA are likely to encounter significant resistance from the
entrenched information-holders at the core o f the traditional IC. Nevertheless, projects like this
represent a bright spot in the Community's baleful recent history of counterterrorist information-
sharing.
(b) Homeland Security Intelligence Fusion
Another bright spot is the potential for a fresh start that is presented by the new .
Department of Homeland Security. The Homeland Security bill signed by President Bush on
November 25, 2002 contains provisions which I wrote specifically in order to help address these
information-sharing problems within the Intelligence Community and between other federal
agencies. Specifically, this new law makes it the responsibility of the Undersecretary for
Information Analysis and Infrastructure Protection at the Department ofHomeland Security to
"establish and utilize. . . a secure communications and information
technology infrastructure, including data-mining and other
advanced analytical tools, in order to access, receive, and analyze
data and information in furtherance of the responsibilities under this
section. . . ."75
This language is complemented by the strong information-access provisions I also wrote into the
bill These provisions provide appropriately-cleared Homeland Security analysts with authority
affirmatively to access (i.e., not simply to be given):
75
Public Law 107-296 (November 25, 2002), at � 201(d)(14).
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"all information, including reports, assessments, analyses, and
unevaluated intelligence related to threats of terrorism against the
United States.. . that may be collected, possessed, or prepared by
any agency of the Federal Governrrent.""
Read together, as they were intended to be, these provisions provide statutory authorization for a
radical new approach to counterterrorist information-sharing in which analysts are for the first
time given the ability to conduct real "all-source" analysis and to "connect the dots" in order to
protect our nation from terrorists.
It was my hope with this legislation to begin to move our Intelligence Community, to
paraphrase former DIA Director Thomas Wilson, beyond the realm of information "sharing"
entirely, inasmuch as "sharing" connotes information ownership by the party that decides to share
it, an idea that is antithetical to truly empowering analysts to connect all the right "dots."'
My views on this subject have been powerfully reinforced by the findings of the Joint
Inquiry, which has recommended that Congress work diligently to ensure the success of the
Homeland Security information analysis office including. ensuring that it gets "full and timely
access to all counterterrorism-related intelligence information," including all the 'raw' supporting
data" it needs. While it certainly remains in President Bush's power to stop his new Homeland
Security organization short o f leading the way toward this new paradigm, it is my hope and it
was the inspiration behind my contributions to Title 11 of the Homeland Security bill and the
recommendations of the Joint Inquiry that he will use this historic opportunity to bring the U.S.
Intelligence Community into the 21' century. I dearly hope that, recent press reports to the
contrary,' the Administration will not squander the opportunity to make true all-source fiision
finally work to protect Americans from terrorism.
(4) The Other Side of the Coin: Protecting National Security Information
In the context of information sharing, a quick word should also be said about the reed to
76
77
78
Id. at � 202(a)(1) (emphasis added).
See JIS, written statement presented to SSCl/1-1PSCI joint hearing (October 1, 2002), at 13 (citing
VADM Thomas Wilson).
See, e.g., Eggen & Mintz, supra, at 43.
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protect national security information from unauthorized discbsure. Those of us with regular
access to highly classified information cannot help but be appalled by the frequency with which
the publication within the Intelligence Community of enormously sensitive reports is quickly
followed by sensationalistic press accounts of that very same information. The President, the
Secretary of Defense, and other officials have all stated emphatically the dangers posed by the
endemic culture of media "leaks" in modem Washington. As Attorney General Ashcroft has
noted, "there is no doubt and ample evidence that unauthorized disclosures of classified
information cause enormous and in harm to the nation's diplomatic, military, and
intelligence capabilities.' As we have learned during the course of this Joint Inquiry, our
Intelligence Community's ability personally to track Usama bin Laden himselfwas lost in 1998 on
account of a senior official's boasting to the media about a certain type of collection capability.
We simply cannot hope to fight the war on terrorism with sustained success if we continue to see
our intelligence activities and capabilities featured in the press as part of what Senator Pat Roberts
has described as "the leak of the week."
Unfortunately, however, our current laws against disclosing classified inbrmation are far
too.rweak, and investigations of leaks usually far too difficult, for prosecutors to have had any
success in pursuing them. Indeed, in the last half-century, I am aware of only one non-espionage
case in which someone was prosecuted for an unauthorized disclosure. The SSCI and HPSCI
tried to address this issue in 2000 by placing a section in our Fiscal Year 2001 intelligence
authorization bill that would have made it a felony for someone with authorized access to
classified information knowingly to disclose it to someone not authorized to receive it."
President Clinton, however, vetoed the bill.
Now that the war on terrorism has refocused us upon the potentially appalling
consequences of our culture of leaks, the 108' Congress should take up and enact this legislation
anew and President Bush should sign it. Such anti-leaks legislation will become more important
than ever as we move into the 21" century world of true "all-source" fusion and automated data-
mining within the Intelligence Community. We should also bear continually in mind the
admonition contained in the Joint Inquiry's recommendation to consider the degree to which
"excessive classification" has impeded the IC's ability to handle the information-management
responsibilities we ask of it We must both punish leaks of information and ensure that the only
79
80
Attorney General John Ashcroft, letter to Vice President Dick Cheney (October 15, 2002).
See S.2507 (106th Congress, 2d Sess.), at � 303.
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information subject to classification is that which truly needs to be.
III. Intelligence-Law Enforcement Coordination
Another of the discouraging lessons of September 11 is the extent to which the United
States' law enforcement agencies (LEAs) and its Intelligence Community (IC) still have not
managed to work effectively with each other. Progress has been made in this regard since the
terrorist attacks, thanks in large part to Congress' prompt passage of the USA PATRIOT Act of
200 1 (Public Law 107-56). This remains an area, however, in which much improvement is
needed as well as sustained Congressional oversight to ensure that these agencies really do
make cooperation part of their institutional culture over the long run.
A. FISA and Its Discontents
Much of the blame for the dysfunctional nature of pre-September 11 LEA/IC coordination
can be traced to a series of misconceptions and mythologies that grew up in connection with the
implementation of domestic intelligence surveillance (and physical searches) under the Foreign
Intelligence Surveillance Act (FISA).81 Rigid and restrictive readings of FISA in the early and
mid-1990s acquired with time the apparent legitimacy of long-presumed acceptance, and created a
sterile and ultimately fallacious conventional wisdom that effectively but unnecessarily
prevented meaningful LEA/IC coordination.
(1) Development of the "No Coordination" Myth
Much of the pre-September 11 problems with FISA can be traced to confusions associated
with participants' understandings of the so-called "purpose test" embodied in the statute. Under
FISA as it existed before 2001, a surveillance or search order could only be obtained if, among
other things, the government was able to certify and a federal judge on the FISA court agreed
that "the purpose" of the undertaking was to collect foreign intelligence information.
Taking their cue from non-FISA caselaw setting forth the constitutional ml es for
warrantless intelligence surveillance, most courts interpreting FISA and essentially all intra-
Executive Branch officials who dealt with these matters read FISA's "the purpose" language as
81
18 U.S.C. � 1801 et seq.
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imposing the requirement that the "primary" purpose of the requested surveillance or search be
the collection of foreign intelligence. Warrantless surveillance cases such as Truong" arising out
of activities undertaken before the passage of the FISA statute, had helped create what became
known as the "primary purpose" test. Technically, the seminal "primary purpose" cases did not
apply to surveillance conducted under Fl SA, a statute enacted by Congress in order to establish a
special, court-overseen system of domestic intelligence surveillance and thus to replace the pre-
FISA constitutional standard with a specified statutory one. Nevertheless, it did not take long for
courts and commentators alike to interpret FISA as incorporating the pre-FISA "primary
purpose" test.
As the FISA Court of Review ably explained in a recent landmark decision (and the first
case ever heard by that appellate body established by the FISA statute in 1978), FISA itself
imposes kw, if any, restrictions upon intelligence/law enforcement coordination. Indeed,
according to the Court of Review, the very idea that there exists a "dichotomy" between
"criminal" and "intelligence" purposes was merely an unwarranted assumption that subsequent
participants in the FISA process imagined into the law." Nevertheless, in short order it had
become the conventional wisdom of U.S. intelligence oversight law that FISA incorporated the
"primary purpose" test and thus that there must at some point be a limit to the permissible
degree of "criminal investigative" involvenrnt in electronic surveillance or physical searches"
under FISA.
More importantly and, as it turns out, far more perni ciously this hal f-irnagined
"purpose test" itself came to be interpreted extremely rigidly, in ways that in time came to be seen
effectively to preclude any meaningful coordination between criminal investigators and
intelligence personnel even in terrorism and espionage cases. As first discussed publicly in
connection with a report on the Wen-Ho Lee affairs by the Chairman of the Senate Governmental
82
83
United States v. Truong Dinh Hung, 629 F.2d 908 (41h Cir. 1980).
See Foreign Intelligence Surveillance Court of Review, In re: Sealed Case No. 02-001
(November 18, 2002) [hereinafter "Court of Review Opinion"], at 18-19.
84
Physical searches were not covered by the criginal FISA statute, being added to the law in 1995.
(Before that point, therefore, physical searches still fell under the pre-FISA ccnstitutional
standards for warrantless surveillance.)
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Afthirs Committee in 1999," and as subsequently detailed both in a General Accounting Office
(GAO) study" and the declassifrd findings of a special Justice Department review the Attorney
General's Review Team (AGRT) headed by Assistant U.S. Attorney Randy Bellows, which
produced the so-called "Bellows Report"' DOJ attorneys adopted a hyper-restrictive, and
legally unnecessary, approach to FISA applications. This approach, as was apparently intended,
maximized the likelihood of FISA order requests being approved by the Foreign Intelligence
Surveillance Court (FIS C) and certainly minimized FISA "intrusions" upon American privacy." It
came at the cost, however, o f pro hibiting a great deal of useful and quite lawful information-
sharing and coordination between intelligence and criminal investigators.
As best I have been able to piece these things together today and in its recent decision
on these matters, the FISA Court of Review (COR) disclaimed any real certainty about when
these problems first arose" the most damaging manifestations of this phenomenon came about
after 1995, in the wake of the espionage prosecution of nior CIA officer (and Soviet mole)
Aldrich Ames. Criminal and intelligence investigators in that case allegedly cooperated closely, so
85
86
87
88
89
Fred Thompson & Joseph Lieberman, "Special Statement on 'Department of Energy, FBI, and
Department of Justice Handling of the Espionage Investigation into the Compromise of Design
Information on the W-88 Nuclear Warhead" (August 5, 1999), available at
http://www.senate.gov/--gov affairs/ 080599 china espionage statement.html (visited August
23, 2001).
General Accounting Office, Coordination Within Justice on Counterintelligence Criminal
Matters is Limited (July 2001) [hereinafter "GAO Report"].
Attorney General's Review Team, Final Report on the Handling of the Los Alamos National
Laboratory Investigatioit (May 2000), declassified version [hereinafter "Bellows Report"].
These debates, of course, came up with most vehemence in connection with proposed FISA
surveillance or physical searches of the property of "United States persons" that i s, U.S.
citizens, lawful permanent residents, or U.S. corperations, see 50 U.S.C. �� 1801(i) (providing
definiticn) bemuse FISA impows special rules for dealing with U.S. perscris, see id. at
� 1801(a), 1804(a), & 1825(a). FISA surveillance and searches are much more easily available,
under the statute, against non-US, persons such as foreign diplomats or facilities within the
United States. See, e.g., id. at � 1802(a)(1) (permitting surveillance ofpremises exclusively
controlled by a foreign power without need fcr court approval).
See Court ofReview Opinion, supra, at 10 (suggesting that this dynamic may have begun "at
some point during the 1980s").
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closely that lawyers within Attorney General Janet Reno's Justice Department apparently became
convinced that they might "lose" the Aims case if dense counsel asked the trial judge to
suppress evidence obtained by intelligence surveillance on the grounds that this collection had
"really" been for criminal purposes.
As it turned out, Ames' guilty plea brought the case to a conclusion before this issue could
be joined. Unsettled by the episode, Clinton Administration lawyers apparently concluded that '
they would in the future essentially prohibit coordination between criminal and intelligence
investigators. The Attorney General issued special guidelines in July 1995 setting forth standards
for information-sharing and coordination between FBI agents working on FISA cases or other
intelligence investigations and attorneys in DOJ's Criminal Division. These guidelines did permit
some cooperation, specifying standards for when the Criminal Division was to be notified of
information."
As detailed by GAO, however, these guidelines were never really enforced within DOJ.
With these guidelines standing, in effect, in abeyance, DOJ attorneys especially those within the
Office of Intelligence Policy and Review (OIPR), which serves as the Department's "gatekeeper"
on FISA matters were free to interpret FISA as banning essentially any contact between FISA
investigators and the Criminal Division. As GAO and a special internal DOJ report have
recounted, coordination on intelligence cases dropped off significantly after the guidelines were
issued, and what contact was undertaken commonly- occurred so late in the process as to be
substantively useless." According to some participants, meetings between FBI intelligence
investigators and Criminal Division attorneys became "unproductive," and even "weird" and
"surreal." The new restrictions imposed by OIPR prevented the FBI from obtaining 'meaningful
advice from the Criminal Division during an FCI [foreign counterintelligence] investigation," and
impeded "the FBI's ability to do its job.' In short order, OIPR attorneys turned the "primary
purpose test" into a de facto "exclusive' purpose" test." No FISA request was permitted to go
90
Attorney General Janet Reno, "Procedures br Contacts Between the FBI and the Criminal
Divisicn Concerning Fcreign Intelligence and Foreign Counterintelligence Investigations,"
memorandum to Assistant Attorney General, Criminal Divisicn, et al. (July 19, 1995).
91
See GAO Report, supra, at 14.
92 Bellows Report, supra, at 732-33.
93
See GAO Report, supra, at 14.
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forward if there was any meaningful coordination between criminal and intelligence investigative
organs, and similar 'no-coordination" standards were applied to all FCI and counterintelligence
investigations. Denied any meaningful ability to coordinate actions between the LEA and IC
spheres, the FBI developed a Byzantine system of parallel investigative tracks for working
terrorism issues: "dirty" teams of intelligence investigators and "clean" teams of purely criminal-
focused agents would work the same terrorist cases at the same time, "biet they rarely talk[ed] to
each other."94 This organizational allergy even to the most common-sense forms of
counterterrorist cooperation become infamous after September 11: a "Wall" had been built
between intelligence and law enforcenent.
(2) Manifestations in the September 11 Intelligence Failure
Spurred by Congressional attention given to OIPR's excessively restrictive approach to
FISA during the Wen-Ho Lee affair and by the scathing critique of that office offered in the
Bellows Report DOJ began to realize in the final months of the Clinton Administration that it
had created a significant national security problem for itself On January 21, 2000, Attorney
General Reno promulgated some new "interim measures," but she failed to adopt new guidelines
before leaving office. Revised formal guidance, however, was not forthcoming until set forth in
August 2001 by Deputy Attorney General Larry Thompson.' This clarified the rules for
coordination between law enforcement and intelligence organs, emphasizing that notification of
the Criminal Division is mandatory when information is developed that "reasonably indicate[s]
that a significant federal crime has been, is being, or may be committed."96
These new rules, however, did not make major changes in the 1995 guidelines, and were
clearly insufficient to change the institutional culture that had developed within the FBI and the
Justice Department around what was now the virtually unchallenged conventional wisdom of the
"no coordination" myth Investigators working before September 11 to get to the bottom of
alarming terrorist cases such as those of Khalid al-Mihdhar, Nawaf al-Hazmi, and Zacarias
Moussaoui repeatedly ran into the "War and its institutional side-effects: an investigative culture
� 94
95
96
See, e.g., Roberto Suro, "FBI's 'Clean' Team Follows 'Dirty' Work of Intelligence," Washington
Post (August_ 16, 1999), at A13.
Deputy Attorney General Larry Thompson, 'Intelligence Sharing," memorandum to Assistant
Attorney General Michael Chertoff et al. (August 6,2001).
Id. at 2.
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positively allergic to LEA/IC information-sharing and coordination, and remarkably ignorant
about how much such cooperation was actually allowed.
FBI special agents in the New York Field office working on the Bureau's investigation of
the bombing of the Navy destroyer USS Cole by Al-Qa'ida, for instance, met with CIA officials in
June 2001 in an effort to obtain information. At this point, the CIA knew both that al-Mihdhar
and al-Hazrni were linked to a prime suspect in the Cole attack and that they were both in the
United States, but it refused to give the FBI this information. Former CIA CTC chief Cofer Black
later testified before Congress that the CIA's refusal to tell the FBI about these two terrorists
loose in the United States had been entirely consistent with 'rules against contaminating criminal
investigators with intelligence information!' As one of the FBI agents involved in this episode
put it,
"[t]he Wall', and implied, interpreted, created or assumed
restrictions regarding it, prevented myself [sic] and other FBI
agents working a criminal case out of the New York Field Office to
obtain information from [the] Intelligence Community, regarding
Khalid al-Mthdhar and Nawafal-Hazmi in a fleeting on June 11,
2001.98
Nor was this all After the FBI was belatedly notified by the CIA in August 2001 that
known Al-Qa'ida terrorists al-Mthdhar and al-Hazmi were in the United States, the Bureau began
trying to track them down. Despite the urgency of this task, however, FBI Headquarters
prohibited FBI criminal investigators in New York from participating in the search for these
terrorists and refused even to tell them what little was known about the two men at the time. As
one of the New York agents was informed in an e-mail from Washington, D.C., "that information
will be passed over the wall" only if "information is developed indicating the existence of a
substantial federal crime!'" Perceiving there to be an unbridgeable gap between law enforcement
and intelligence work, the FBI thus refused even to talk to itself in order to prevent mayhem by
known Al-Qa' ida terrorists in the United States. Meanwhile, al-Mihdhar and al-Hazmi were in
97
98
99
Cofer Black, written statement presented to joint SSCl/HPSCI hearing (September 26, 2002),
at 3.
HS, written statement presented to joint SSCUHPSCI hearing (September 20, 2002), at 21.
JIS, written statement presented to joint SSCUHPSCI hearing (September 20, 2002), at 21.
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the final stages of their preparations for the September 11 attacks.
As noted by the JIS, these information sharing problems clearly "reflect misunderstandings
that have developed over the last several years about using information derived from intelligence
gathering activities in criminal investigations."' DOJ's "policies and practices regarding the use
of intelligence information in FBI criminal investigations" helped make it enormously harder for
the government to find al-Mthdhar and al-Hazmi in the last weeks before September 11101 even
though they were both living and traveling under their true names at the time, and a simple
Internet search requested by one of the New York FBI agents after the World Trade Center
attacks yielded their address in San Diego "within hours."' The tragedy of this is that it was so
needless: the law actually did not bar all cooperation across the "Wall" between law enforcement
and intelligence. It was simply assumed to do so because years of timorous lawyering in the
Justice Department and Intelligence Community reticence had created an institutional culture
hostile to coordination. As FBI official Michael Rolince put it, procedures for information-
sharing becalm so baroque and restrictive that sharing was essentially prohibited: "In terrorism
cases, this became so complex and convoluted that in some FBI field offices agents perceived
'walls' where none actually existed."1�3
Coordination problems also arose in the Moussaoui case, in which FBI agents in the
Minneapolis Field Office were desperate to search Moussaoui's personal effects for clues about
his activity. Even though Moussaoui was in government custody, however, FBI agents were
prohibited from looking through his computer and papers without court permission. FBI
Headquarters actually prohibited intelligence investigators in Minneapolis from notifying the
Criminal Division at the Justice Department about the Moussaoui situation, and prohibited agents
100
101
102
103
JIS, written statement presented to joint SSCUHPSCI hearing (September 20, 2002), at 13
(quoting e-mail message sent cn August 29, 2001, from FBI Headquarters to FBI Special Agent
in New York City).
JIS, written statement presented to joint SSCUHPSCI hearing (September 20, 2002), at 20.
FBI Agent from New York Field Office, testimony before joint SSCURPCSI hearing (September
20, 2002), available from Federal News Service.
Michael Rolince, written statement presented to joint SSCl/HPKI hearing (September 20,
2002), at 4.
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from pursuing a criminal search warrant against him. t�4
FBI Headquarters apparently barred the pursuit of a criminal warrant on the theory that
any professed interest in criminal prosecution would jeopardize any chances of a FISA a
reasonable assumption given 01PR's longstanding approach to such matters.1�5 When the FBI
agents actually contacted Headquarters about obtaining such a FISA order, however, they were
given inexcusably confused and inaccurate information from attorneys at the FBI's National
Security Law Unit (NSLU). FBI attorneys at Headquarters told Minneapolis that in order to get
a FISA, they had to produce evidence showing that Moussaoui was affiliated with one or more
groups on the State Department's official list of "terrorist" organizations. This legal advice was
patently false and has no basis either in the FISA statute or in DOJ policy or guidelines.
Nevertheless, this bad advice led the Minneapolis agents on a legal wild goose chase for nearly
three weeks, as they tried to find enough information connecting Chechen terrorist organizations
with whom M oussaoui had some ties, but who were not on the list to Al-Qa'i da.106
(3) Developments Since September 11
Since the September 11 attacks, both Congress and the Justice Department have taken
important steps to revise the law and policies restricting law enforcement/intelligence
coordination. The myth that FISA prohibited essentially all coordination between intelligence and
law enforcement agents, while untrue even under pre-September 11 law, was addressed by
Congress' passage of the USA PATRIOT Act of 2001 (Public Law 107-56), which took aim
directly at the "primary purpose" test long assurred to be part of FISA case law. Whereas FISA
for years had provided that "the purpose" of FISA surveillance had to be intelligence collection,
after President Bush's signature of the USA PATRIOT Act, FISA said merely that orders are to
104
105
106
JIS, written statement presented to joint SSCl/HPSCI hearing (September 24, 2002), at 17-18.
During the Wen-Ho Lee affair, fa- instance, OTR chief counsel Francis Fragos Townsend had
rebuffed FBI attempts to get a FISA order in early 1999 because the FBI was by that point
considering pursuing a criminal search warrant against Lee. Acccrding to contemporaneous
notes taken by FBI officials, Townsend rejected the FBI's efforts to renew FISA discussicns with
the dismissal that the case had become "way too criminal." See Thompson & Lieberman, supra,
at 13.
JIS, written statement presented to joint SSCl/HPSCI hearing.(September 24, 2002), at 19-20;
see also Minneapolis FBI Agent, testimony befDre joint SSCl/HPSCI hearing (September 24,
2002), available from FDCH Political Transcripts (September 24, 2002)..
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be granted where this is "a significant purpose."' Thereafter, no inference of a "primary"
purpose test should have been permitted, much less an "exclusive purpose" standard. After
October 26, 2001, the FISA statute permitted surveillance and physical searches even for
undertakings that were primarily criminal provi ded only that intelligence collection was not an
insignificant reason for the undertaking.
It took over a year, however, for the USA PATRIOT Act changes to penetrate the U.S.
Government's entrenched "no coordination" bureaucratic culture. In November 2001,
immediately after Congress had enacted the "significant purpose" change to FISA, the Foreign
Intelligence Surveillance Court broke with previous precedent and for the first time required DOJ
and the FBI to follow the Attorney General's July 1995 guidelines on law enforcerrent-
intelligence coordination.'" Ahhough court approval was necessary under the FISA statute for
the establishment of FISA "minimization rules" for handling information on U.S. citizens or lawful
permanent residents, the FISC had never before seen fit to enforce specific general rules on
coordination between intelligence and law enforcement organs. The July 1995 guidelines had
been the creation of the Attorney General's policy discretion, and the FISC had never required
them to be followed during the long years of the late 1990s when they were being ignored by DOJ
attorneys seemingly hostile to the very idea of such coordination. Yet the moment that Congress
changed the law in order to make clear that it intended there to be no "Wall," the FISC stepped in
to impose the very legal standards repudiated by the USA PATRIOT Act.
With its November 2001 ruling imposing the July1995 guidelines upon the post-
Sept ember 11 Justice Department, the FISC necessarily established the precedent that any
changes to the coordination guidelines required court approval. Things got still more strange
after the Attorney General duly submitted draft guidelines in March 2002, seeking the FISC's
approval to implement the changes written into law by the USA PATRIOT Act. These new
proposals embodied the "significant purpose" changes, and permitted extensive information-
sharing and coordination between intelligence and law enforcement elements within the
Department and the FBI to the point that "all DOJ component are free to offer advice and make
recommendations, both strategic and tactical, about the conduct and goals of the
107
Public Law 107-56 (October 26, 2001), at � 218.
108
See Court ofReview Opinion, supra, at 21-22 (recounting history of case).
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investigations."109
The FISC, however, rejected the Attorney General's proposed changes, declaring in a
May 17, 2002 opinion that they went too far. Wholly ignoring the USA PATRIOT Act's changes
to the FISA "purpose test," this opinion explicitly endorsed what the FISC itself described as "the
Walr' between law enforcement and intelligence finding support for this not in the crucial
"purpose test" modified by Congress but in the statute's substantively unrelated provisions on
"minimization rules" to govern the handling of information specifically about U.S. persons.11�
It was not until November 2002 that the FISA Court of Review the nev er-before-used
appellate body created by the statute issued an opini on overruling the FISC's decision. Thanks
to the Court of Review holding, the law thus stands today where Congress intended it to stand on
October 26, 2001: there is no restriction upon coordination between law enforcement and
intelligence organs in connection with FISA surveillance or physical searches, and such activity
can lawfully be undertaken even if primarily done with prosecutorial intent, provided that a
"significant" intelligence purpose remains."' Given its erratic and reflexive behavior after
.September 11, how faithfully the FISC actually applies this standard to individual FISA requests
109 "Intelligence Sharing Procedures for Foreign Intelligence and Foreign Counterintelligence
Investigations Conducted by the FBI," memorandum from Attorney General John Ashcroft to
*FBI Director et al. (March 6, 2002), at 2.
110
See Foreign Intelligence Surveillance Court, In re: All Matters Submitted to the Foreign
Intelligence Surveillance Court, Memorandum Opinion (as Corrected and Amended), multiple
docket numbers (May 17, 2002) [hereinafter "FISC Opinion"], at 18 & 22-27.
Ironically, the law stands here today even though the Court of Review held that before the USA
PATRIOT Act,th ere really was never any "dichotomy" between a FISA order's "intelligence"
and "criminal" purpose in the first place. As the Court of Review explained the law, under FISA
as originally written, even a wholly prosecutorial purpose should have been acceptable insofar
as putting spies and terrorist behind bars and/or using the threat of prosecution to�squeeze" them
for information was an entirely legitimate "intelligence" purpose. According to the Court of
Review, the USA PATRIOT Act, by purporting to loosen a "purpose test" that Congress wrongly
assumed to exist, actually imposed a balancing test between "criminal" and "law enforcement"
purposes for the first time. The bottom line, however, is that FISA law today actually says what
Congress intended it to say after the passage of the USA PATRIOT Act.
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remains to be seen."2 Provided that the FBI can persuade its NSLU attorneys to learn FISA law
better and provided that Attorney General Ashcroft succeeds in replacing the "Wall" culture
with new attitudes devoted to effective coordination there is reason for optimism that
coordination-related problems of the sort seen in the al-Mthdhar, al-Hazmi, and Moussaoui cases
will not recur.
(4) Intelligence-Law Enforcement Information-Sharing
In addition to problems stemming from presumed legal obstacles to passing crucial
information from the Intelligence Community to law enforcement, the events of September 11
highlighted the problems of passing information in the other direction: from law enforcement to
the Intelligence Community. Throughout the 1990s, for instance, the Justice Department, the
FBI, and the offices ofvarious U.S. Attorneys around the country accumulated a great deal of
iniormation about Al-Qa'ida and other terrorist networks operating within the United States.
This information was derived from law enEarcement investigations into such events as the 1990
assassination of Rabbi Meier Kahane, the 1993 World Trade Center bombing, the abortive plot to
blow up various harbors and tunnels in New York City, the 1996 Khobar Towers attack, the 1998
U.S. embassy bombings, Al-Qa'ida's `Millennium Plot," and the attack on the USS Cole in
October 2000. Most of this information, however, remained locked away in law enforcement
evidence rooms, unknown to and unstudied by counterterrorism (CT) analysts within the
Intelligence Community.
112
There is some room for ccncem that the FISC's legal instincts have become too congruent with
the "Wall" mentality. As the Court ofReview acidly suggested in a barbed fcotnote to its
November 2002 opinion, mme of the FISC's eagerness to defend mistaken concepts of the
"Wall" may have stemmed from the fact that an OIPR attorney closely associated with "Wall"
thinking recently took up a position as FISA clerk to the federal district judges serving cn the
FISC. See Court ofReview Ornion, supra, at 20 n.15. The attorney in questicn is Allan
Komblum, who achieved a degree of notoriety in FISA circles as the DOJ lawyer perhaps most
personally responsible for the Department's much-criticized interpretation of "probable cause"
under the FISA statute during the Wen-Ho Lee affair. See Fred Thompson & Joxph Lieberman,
- transcript of press conference (August 5, 1999) (available from Federal News Service), at 2-3
(remarks of Senator Thompson describing OIPR's "highly restrictive view ofprobable cause" as
"a faulty interpretation") & 4 (remarks of Senator Lieberman, noting that he "disagreed" with
OIPR's "judgment call"); Bellows Repert, supra, at 482 (concluding that the Wen-Ho Lee FISA
application indeed "established probable cause" and "should have resulted in the submission of a
FISA application, and the issuance of a FISA order").
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That this information possessed potentially huge relevance to the Intelligence
Community's CT work is beyond question. Indeed, until the late1990s, at least, U.S. law
enforcement offices probably had more information on Al-Q a'ida its key members operating in
the West, its organizational structure, and its methods of operation than the CIA's CTC. Two
CT specialists from the Clinton Adrninistration's National Security Council later described court
records from 1990s terrorism trials as being "a treasure trove" that contained "information so
crucial that we were amazed that the relevant agencies did not inform us of it while we were at
the NSC."113 A small office within the Office of Naval Intelligence, for instance, began a whole
new field of inquiry into terrorist maritime logistics networks in the summer o f 2001 on the basis
of a single FBI interview form (a "Form 302") and the public court transcripts from the 1998
embassy bombings trials in New York, long before anyone had even tried systematically to "mine"
law enforcement records for intelligence-related information."4 That most such law enforcement
information remained off limits to intelligence analysts before September 11 is terribly, and
perhaps tragically, unfortunate.'"5
Even apart from coordination-related concerns about the "Wall" discussed previously, the
sharing of law enforcement information with the IC was fiercely resisted by law enforcement
113
114
115
Daniel Benjamin & Steven Simon, The Age of Sacred Terror (New York: Random House, 2002),
at xii-xiii.
This office, lcn own as the Maritime Target Development Division (MTDD), has since been
elevated to the status of full-fledged Department office within the ON! organization.
The degree to which law enforcement information remained so firmly embedded within records
unsearched by intelligence analysts can perhaps be seen in the failure of our own JIS to identify
within Intelligence Community records at is perhaps the earliest known reference by an
Islamic-fundamentalist to a plot to attack buildings such as the World Trade Center towers. After
U.S. law enforcement authorities captured El- Sayyid Nosair after his assassination of Rabbi
Meier Kahane in 1990, they found in one of his notebooks a lyrical description of the need to
destroy "the enemies of Allah . . . by means of destroying exploding [sic], the structure of their
civilized pillars such as the touristic infrastructure which they are proud of an their high world
buildings which they are proud of . . . ." See Benjamin & Simon, supra, at 6. More than a
decade after this evidence was seized, the JIS ' searches of In Community databases for
information that might have presaged the September 11 attacks has apparently produced not a
single reference to this pregnant early warning signal by an Islamic fimdamentalist now long
known to have been linked to Sheikh Omar Ahmad Abdel Rahman and the terrorist cell
responsible for the 1993 World Trade Center attacks and invdved in plotting to blow up multiple
tunnels and monuments in New York City thereafter.
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officials. Some of this was unavoidable, insofar as information protected by Rule 6(e) of the
Federal Rules of Criminal Procedure that is, grand jury information really could not lawfully
be passed to intelligence analysts. Like the mythology of the coordination "Wall" in the years
before September lithe "Rule 6(e) excuse" acquired an unwarranted mythologioal dimension of
its own.
Rule 6(e) restricts the disclosure of information actually revealed in the confidence of the
grand jury chamber. This prohibition, however, does not actually reach other information in the
possession of law enforcement entities, such as FBI "Form 302" witness interview records,
documents obtained in response to search warrants, "lead" information acquired from sources,
and so forth. Even during the most secretive grand jury investigation, in other words, there is a
huge amount of information that can be shared with intelligence officials without running afoul of
Rule 6(e). (Such information may be highly sensitive, of course, but protecting sensitive sources
and methods is hardly something with which the Intelligence Community lacks experience.)
Sadly, however, Rule 6(e) increasingly came to be used simply as an excuse for
not sharing information leaving vital collections of shareable information about international
terrorist groups off-limits to IC intelligence analysts. For years, it was routine FBI and DOJ
practice to respond to virtually any Intelligence Community requests for information with the
answer that "Rule 6(e)" prevented any response. As two frustrated NSC veterans describe it,
"Rule 6E [sic] is much more than a procedural matter: it is the
bulwark of an institutional culture, and as Justice Department
lawyers readily admit, it is used by the Bureau far more often than it
should be. It is one of the Bureau's foremost too is for maintaining
the independence that the FBI views as its birthright.37116
Indeed, by this account, NSC officials met with Attorney General Reno in 1993 about the
obstacles this dynamic presented for counterterrorism analysis. "Akhough the issue was revisited
many times over the next four years," nothing happened: "The FBI balked at the proposal, and
[Attorney General] Reno, although she was [FBI Director] Louis Freeh's boss, could never bring
him around."'"
116
117
Benjamin & Simon, supra, at 227.
Id.
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After the surprise attacks on September 11, the new Justice Department of Attorney
General Ashcroft worked with Congress to put the Rule 6(e) issue to rest. Apparently working
from the assumption that it would be easier to change the law itself than to fix a parochial and
dysfunctional institutional culture that used the Rule as an excuse to prevent all information-
sharing, they determined simply to change Rule 6(e) to permit information-sharing with
intelligence officials. This change was incorporated into the USA PATRIOT Act.'
As the law stands today, even intelligence-related information that derives exclusively
from revelations within the confines of the grand jury chamber may freely be shared with the
Intelligence Community. The USA PATRIOT Act, in fact, permits sharing criminal wiretapping
information"' and more generally authorizes inkrmation-sharing "[n]otwithstanding any other
provision of law''"2� thus sweeping within its ambit not only Rule 6(e) but also 18 U.S.C. � 2517
and any other rule that might providing an excuse to ho ard information. Indeed, Title IX of the
Act included a provision that, subject to the Attorney General's establislunent of procedures and
standards for such sharing, requires law enforcement organs to pass information with intelligence
significance to the Intelligence Community.'
(5)
Recommendations
Organizational cultures are notoriously hard to change, and it remains to be seen how well
the legal and policy changes of the post-September 11 period will become part of the institutional
fabric of the Justice Department and the FBI. In the interest of ensuring that sustained progress is
made in this regard, Congress probably made a mistake in subjecting the broad "notwithstanding
any other provision of law" sharing provision and the "significant purpose" FISA amendment in
the USA PATRIOT Act to that bill's "sunset" clause which will cause these important
provisions to expire in December 31, 2005.' If it wishes to see these improvements in
information-sharing and law enforcement-intelligence coordination succeed in the long term, the
118 P.L. 107-56, at � 203(a).
119 Id. at � 203(b).
120 Id. at � 203(d).
121 Id. at � 905.
122
See id. at � 224(a) (providing for expiration of certain provisions).
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1086 Congress should consider exempting them from the "sunset" provision.'
The 108th Congress should also reintroduce and promptly approve the amendment to
FISA proposed in June 2002 by Senators Kyl and Schumer. This legislation wh ich was
introduced during the 107th Congress as S.2586 would modify the "foreign power" definition in
the FISA statute to permit the issuance of surveillance or search orders against non-U.S. persons
suspected of international terrorist activity but whose ties to a specific foreign terrorist "group"
cannot initially be shown. Debates continue in FISA circles about whether Zacarias Moussaoui's
ties to the Chechen rebels were sufficient to provide a "foreign power" nexus under the existing
FISA statute. Discussions of the Moussaoui case, however, have made clear that there is a
potential loophole in the law that might be exploited by future terrorists.
Specifically, as discussed in a public hearing of the SS CI during the summer of 2002, the
FISA statute is built around a 1970s-era conception of the "international terrorist group." When
FISA was enacted in 1978, the typical terrorist group was a Marxist-style organization with a
fairly rigid, authoritarian organizational structure and chain of command (e.g., Baader-Meinhoff
gang, the Red Brigades, the PLO, the Red Army Faction, the PFLP, and so forth). Terrorist
organizations today, however, have increasingly "fiat" or "networked" organizational structures,
tending to be decentralized and comparatively resistant to institutional "decapitation." Moreover,
as the FBI's Deputy General Counsel has noted, terrorism today is far more indiscriminate and
more focused simply upon causing mass casualties than were terrorist groups at the time FISA
123
Congress should also closely monitor the Intelligence Community's use of grand jury and other
protected law enforcement information. Sudi information is quite properly subject to oversight
by federal judges while it remains within law enforcement channels. When passed to the
Intelligence Community, however, it leaves the courts' control and oversight. Since the
Department of Justice has taken the position that the intelligence oversight committees of
Congress should not be permitted to see any grand jury information, this means that there is no
oversight of what use is made of grand jury material passed to the Intelligence Community. The
Senate Select Committee on Intelligence tried to provide for such oversight in its FY03
authorization bill, see S.2506 (107th Cong., 2d Sess.), at � 306, but this provision was removed in
conference at the insistence of the Administration. The 1081" Congress would do well to consider
the civil liberties implications of passing grand jury information to the Intelligence Community
without effective oversight as well as the implications for the oversight prerogatives of
Congress more generally, as such information is incorperated over time into intelligence products
denied to the committees because they contain such material.
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was adopted.124 Whereas terrorist groups in the 1970s tended to focus upon achieving specific
political goals or upon targeting specific individuals, often using the threat of violence as much as
violence itself (e.g., in hostage-taking s itu at ions), modem terrorist groups are increasingly
interested simply in annihilating their perceived enemies on as grand as scale as technologically
feasible.
Modem terrorists, therefore, are both more lethal and harder to tie to formal "group"
structures than the terrorists Congress had in mind when enacting the FISA statute's current
definition o f a terrorist "foreign power." Senators Kyl and Schumer have proposed to permit
FIS A orders to issue against even a single individual who appears to be involved in terrorism,
provided that such a person is not a U.S. person and that his terrorism has an international nexus.
(The proposal, therefore, would have no impact upon American citizens or lawful permanent
residents, and would not affect investigations into domestic terrorist groups.) The Kyl/Schumer
legislation is supported by the Administration, and was favorably received by the SSCI when
discussed at our July 2002 hearing. It deserves the support of the 108th Congress.
IV. Domestic Intelligence
The findings of our Joint Inquiry Staff have also highlighted grave and continuing
problems with the Federal Bureau of Investigation in connection with its national security work.
Though still renowned for its criminal investigative competence, the FBI has shown a disturbing
- pattern of collapse and dysfunction in its counterintelligence and counterterrorism functions.
These recurring problems have, in turn, led many observers and Members of Congress
increasingly to lose faith in the Bureau's ability to meet the national security challenges it faces,
despite a series of internal reorganizations over the past several years that have failed to rectify
the situation.
In light of the FBI's dismal recent history of disorganization and institutional
incompetence in its national security work, many of us in Congress have begun to consider
whether it might better serve the interests of the American people to separate the
counterintelligence and counterterrorism functions of the Bureau into an entirely separate
organization ore that would be free of the structural, organizational, and cultural constraints
that have greatly handicapped the FBI's ability to conduct the domestic intelligence work our
124
Marion E. ("Spike") Bowman, written statement submitted to SSCI hearing (July 31, 2002), at 1.
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country depends upon it to perform.
A. Tyranny of the Casefile
Fundamentally, the FBI is a law enforcement organization: its agents are trained and
acculturated, rewarded and promoted within an institutional culture the primary purpose of which
is the prosecution o f criminals. Within the Bureau, information is stored, retrieved, and simply
understood principally through the conceptual prism of a "case" a discrete bundle of information
the fundamental purpose of which is to prove elements of crimes against specific potential
defendants in a court of law.
The FBI's reification of "the case" pervades the entire organization, and is reflected at
every level and in every area: in the autonomous, decentralized authority and traditions of the
Field Offices; in the priorities and preference given in individual career paths, in resource
allocation, and within the Bureau's status hierarchy to criminal investigative work and post hoc
investigations as opposed to long-term analysis; in the lack of understanding of and concern with
modern information management technologies and processes; and in deeply-entrenched individual
mindsets that prize the production of evidence-supported narratives of defendant wrongdoing
over the drawing of probabilistic inferences .based upon incomplete and fragmentary information
in order to support decision-making.
At its core, the FBI has always been and remains a "casefile" organization wedded
inextricably to a "casefile" mentality. This is not a bad thing: the Bureau is often, and generally
accurately, described as the "world's premier law enforcement organization." It does its
traditional job quite well. But the tyranny of the case file presents a fimdamental obstacle to
national security work, for the simple reason that law enforcement organizations handle
information, reach conclusions, and ultimately just think difErently than intelligence
organizations. Intelligence analysts would doubtless make poor policemen, and it has become
very clear that policemen make poor intelligence analysts.
Particularly against shadowy transnational targets such as international terrorist
organizations that lack easily-identifiable geographic loci, organizational structures, behavioral
patterns, or other information "signatures," intelligence collection and analysis requires an
approach to acquiring, managing, and understanding information quite different from that which
prevails in the law enforcement community. Intelligence analysts tend to reach conclusions based
upon disparate fragments of data derived from widely-distributed sources arrl assembled into a
probabilistic "mosaic" of information. They seek to distinguish useful "signals" from a
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bewiklering universe of background "noise" and make determinations upon the basis of vague
pattern recognition, inferences (including negative inferences), context, and history. For them, .
information exists to be cross-correlated evaluated, and continually subjected to re-evaluation,
in light of the total context of what is available to the organization as a whole. Intelligence
analysts think in degrees ofpossibility and probability, as opposed to categories of admissibility
and degrees of contribution to the ultimate criminal-investigative aim of proof "beyond a
reasonable doubt."
The "analyst" mindset is thus radically different than that cultivated by training and
acculturation within a law enforcement environment, which necessarily focuses upon building
carefully-managed bundles of information about specific individuals or organizations for specific
purposes. Far from embracing probabilistic inference, "knowledge" in a law enforcement context
aspires in its ideal form at least not only to certainty but also to admissibility, the two
essential conceptual elements of being able to prove someone guilty beyond a reasonable doubt in
a court of law. Within such a paradigm, information exists to be segregated and ultimately
employed under carefully-managed circurnstances for the single specific purpose for which it was
gathered.,
Naturally, these are only ideal types. In reality, intelligence knowledge management is
more Balkanized and disaggregated than the model suggests, and law enforcement information-
holdings more interconnected. Nevertheless, the basic mindsets do exist, and the FBI's
conceptual and institutional baggage as a law enforcement "casefile" organization has made it
very hard some might conclude impossible for the Bureau to mature as a competent player in
the national security field.
(1) Resistance to Intelligence Analysis
(a) Impact of "Casefile" Mentality on pre-9/11 Analysis
The Joint Inquiry Staff (HS) has outlined several examples of such problems within the
FBI in the period leading up to the September 11 terrorist attacks. The FBI, for instance, knew
that convicted terrorist Abdul Hakim Murad had been involved in an extremist Islamic plot to
blow up 12 U.S.-owned airliners over the Pacific Ocean and crash an aircraft in to CIA
Headquarters. Murad was not charged with a crime in comection with the CIA crash plot,
apparently because it was merely at the "discussion" stage when he was apprehended. Because
the CIA crash plot did not appear in the indictment, however, the FBI effectively forgot all about
it.
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As the JIS has recounted, the FBI's case file for the Murad case essentially ignored the air
crash plot, and FBI agents interviewed as part of our inquiry confirmed that Murad's only
significance to them was in connection specifically with the crimes for which he was charged: �
"the other aspects of the plot were not part of the criminal case and therefore not considered
relevant's Convinced that the only information that really matte's was information directly
related to the criminal investigation at hand, the FBI thus ignored this early warning sign that
terrorists had begun planning to crash aircraft into symbols of U.S. power. Thus, rather than
being stored in a form that would permit this information to be assessed and re-assessed in light of
a much broader universe of information about terrorist plans and intentions over time, the Murad
data-point was simply forgotten. Like all the other tidbits of information that might have alerted a
sophisticated analyst to terrorists' interest in using airplanes to attack building targets in the
United States,' the episode disappeared into the depths of an old case file and slipped out of the
FBI's usable institutional memory.
The handling ofinfo illation about the Murad air-crash plot and the flight-school
information is, unfortunately, illustrative of the FBI's more general problems in "connecting the
dots" in ways that good intelligence analysts are expected to do. So pervasive was the FBI's
"casefile" mentality, in fact, that it bled over into the basic architecture of how the Bureau handled
terrorist infoniration even when it tried to do intelligence analysis.
As the ES has recounted, the FBI for years has tracked terrorism information in ways that
essentially prohibit broad, cross-cutting analytical assessment. If it identified a suspected terrorist
in connection with a Hamas investigation, for example, the FBI would label him as a Hamas
terrorist and keep information on him in a separate "Hamas" file that would be easily accessible to
and routinely used only by "Hamas"-focused FBI investigators and analysts. The Usama bin
Laden unit would be unlikely to know about the FBI's interest in that individual, and no one
thought to establish a system for cross-referencing terrorist connections between the carefully-
segregated institutional files. 127 This approach is entirely unsuited to virtually any long-tenn
strategic analytical work, and is patently inappropriate to counterterrorism analysis against the
125
JIS, written statement presented to SSCUHPSCI joint hearing (September 18, 2002), at 11-12.
126
For a summary of intelligence holdings from all intelligence agencies related to the potential
use of aircraft as weapons, see JIS, written statement presented to SSCUIPSCI joint hearing
(September 18, 2002), at 26-28.
127
ns, written statement presented to SSCUHPSCI joint hearing (September 24, 2002), at 14.
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loose, interconnected and overlapping networks ofIslamic extremists that make up the modern
jihadist movement.
The FBI's decentralized organizational structure contributed to these problems, in that it
left information-holdings fragmented into largely independent fiefdoms controlled by the various
field offices. The New York Field Office for years played the principal counterterrorism role
within the FBI simply because it had the misfortune of hosting the 1993 World Trade Center
attacks, thereby acquiring a degree of experience with Islamic fundamentalist terror groups. Even
so, this work focused upon terrorism cases not strategic analy sis and the F BI's decentralized
structure left other field offices in the dark. As the JIS concluded, there was even great "variation
in the degree to which FBI-led Joint Terrorism Task Forces (JTTFs) prioritized and coordinated
field efforts targeting Bin Ladin and al-Qa'ida," and "many other FBI offices around the country
were unaware of the magnitude of the threat."'
The culturally and organizationally fragmented nature of FBI information-holdings
apparently even extended to the handling of knowledge within individual FBI offices themselves.
In August 2001, for example, as FBI agents first sought to establish whether Zacarias Moussaoui
was a terrorist, FBI agents from the local field office visited the flight school in Norman,
Oklahoma, where Moussaoui had been taking flying lessons. The FBI agents were not aware that
their own field office had become concerred about that same flight school two years before
because the personal pilot of Usarna bin Laden (UBL) had been training there.'
The earlier episode in Norman, had it been remembered, may not have been much use in
obtaining criminal probable cause to search Moussaoui's personal effects, but being aware of such
disparate and potentially connected bits of information is at the core of all-source intelligence
analysis "fiision." Such fusion, apparently, was quite beyond the capabilities of the FBI. Despite
all the FBI knew about terrorist interest in U.S. flight schools and in the potential use of aircraft
as weapons, for example, it had declared in December 2000 in a joint report with the FAA that its
"investigations" did not suggest any "evidence" of terrorist plans to target U.S. domestic civil
aviation.'"
128 JIS, written statement presented to SSCUHPSCI jcint hearing (September 18, 2002), at 18.
129
JIS, written statement presented to SSCl/HPSCI jcint hearing (September 24, 2002), at 19.
130
JIS, written statement presented to SSCUHPSCI jcint hearing (September 18, 2002), at 29.
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By the summer of 2001, the FBI knew from the Phoenix EC about UBL-associated
individuals training at U.S. flight schools, that UBL's organization also used the Norman flight
school Moussaoui attended, about past Libyan efforts to send terrorists through aviation training
in the U.S., and that Murad had planned to attack the CIA with an aircraft. As a result, the FBI
was the U.S. Government agency probably best positioned in the late summer of 2001 to "connect
the dots" with an analytical assessment warning of terrorist interest in using U.S.-trained pilots to
crash aircraft into symbolic American buildings. It was also the agency best positioned to connect
such analyses with Moussaoui's activity at Norman, or the presence of known Al-Qa'ida terrorists
al-Mihdhar and al-Hazmi at flight school in San Diego. Follow-up investigation of the names
suggested in the Phoenix EC, which might have occurred had the FBI assembled enough of the
information in its possession to understand the potential threat posed by terrorists at U.S. flight
schools, might also conceivably have led the Bureau to Hani Hanjour one of the September 11
hijackers who trained at flight school in Arizona with one of the individuals identified in the EC as
having links to Al-Qa'ida.131
The Bureau was unable to connect these "dots," however, in large part because
"Nile FBI's focus at the tinr Moussaoui was taken into custody
appears.. . to have been almost entirely on investigating specific
crimes and not on identifying linkages between separate
investigations or on sharing information with other U.S.
Government agencies with counterterrorist responsibilities �,'L32
Approaching issues of intelligence fusion with a law enforcement "casefile" mindset and
organizational structure left the FBI unprepared for the national security challenges of modern
terrorism.
Moreover, because the FBI is fundamentally a "casefile" organization, it has been very
poor at disseminating any intelligence information it might happen to acquire or analytical
products it might happen to produce. The Bureau disseminated extraordinarily few intelligence
reports before September 11, 2001, even with respect to what is arguably its most unique and
powerful domestic intelligence-collection tool: collection under the Foreign Intelligence
131
JIS, written statement presented to SSCl/HPSCI joint hearing (September 24, 2002), at 10.
132
JIS, written statement presented to SSCl/HPSCI jcint hearing (September 24, 2002), at 19.
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Surveillance Act (FISA).1" The FBI's problems in counterterrorist intelligence before September
11 were thus threefold: the Bureau did not lcnow what information it possessed, it did not
approach this information with an intelligence analysis mindset, and it too often neglected to
inform other agencies of what it did know or believe.
Even when the FBI did see fit to try to notify the rest of the Intelligence Community about
the potential threat represented by the Moussaoui situation not long before the September 11
attacks, it was unable to place the Moussaoui case in the analytical context that would have made'
this information usefill to analysts and intelligence consumers. On September 4, the FBI's Radical
Fundamentalist Unit (RFU) sent out a teletype that did no more than merely recount the
investigative steps the FBI was undertaking in its Moussaoui investigation. The author apparently
did not find it worthy of comment that Al-Qa'ida threat warnings were at a fever pitch when
Moussaoui had come to the Bureau's attention.' (Given the FBI's poor record of internal
information-sharing, it is conceivable that the author was not even aware of the broader analytical
dontext, even though he worked in the office at FBI Headquarters nominally responsible for
having such awareness. At any rate, the RFU teletype certainly provided no such context.)
Despite Moussaoui's specific focus upon aviation training, the RFU's teletype to the FAA on that
same day also contained no analytical context that would have helped a reader understand
Moussaoui's potential significance.'"
(b) Analysis versus Investigations
(i) Disinterest in Analysis
Fundamentally, the FBI consistently prized investigations and operations in its national
security work and neglected long-term analysis of the sort that might have permitted agents to
understand more about the pre-September 11 threat of terrorists using civil aviation. According
133
134
At a joint SSCl/HPSCI hearing on July 18, 2002, Senator Feinstein read into the record the
number of reports sent from the FBI to the CIA on terrorism issues. These figures have not been
declassified, but there were essentially no FISA-derived "dissems" issued by the FBI in calendar
year 2001. (The number of "disseminations" issued by the FBI to cther members ofthe IC
mostly in connection with FISA surveillance or searches since October 2001 is much higher.)
JIS, written statement presented to SSCUHPSCI joint hearing (September 24, 2002), at 18.
135
JIS, written statement presented to SSCl/HPSCI joint hearing (September 24, 2002), at 21.
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to FBI Counterterrorism Division chief Dale Watson, counterterrorism work was "a relatively
low-priority program" at the Bureau for many years. He has testified that it received more
emphasis beginning in late 1998, but even this new emphasis grew out of the FBI's investigations
into the 1996 Khobar Towers bombing and the 1998 East African embassy attacks. 136 This
emphasis does not seem to have changed the FBI's disinterest in long-term strategic analytical
work in support of the Bureau's national security responsibilities.
As the Joint Inquiry Staff put it,
"At the FBI, our review found that, prior to September 11, 2001,
support for ongoing investigations and operations was favored, in
terms of allocating resources, over long-term, strategic analysis.
We were told, during the course of our FBI interviews, that
prevention occurs in the operational units, not through strategic
analysis, and that, prior to September 11, the FBI had insufficient
resources to do both."'
These problems were, in large part, an outgrowth of the "casefile" mentality that prevailed at the
Bureau. According to the JIS,
"the case-driven, law enforcement approach, while important and
extremely productive in terms of the FBI's traditional mission, does
not generally `incentivize' attention to big-picture, preventive
analysis and strategy. This is particularly true when there is no
direct and immediate impact on an ongoing criminal
prosecution."38
Counterterrorism (CT) and counterintelligence (CI) work were for years considered less
prestigious career fields for FBI agents. CT and CI investigations could last for years and often
produced m defendants at all, and analytic work almost never produced easily-quantifiable career
136
Dale Watson, written statement presented to SSCl/HPSCI jcint hearing (September 26, 2002),
at 3.
137
JIS, written statement presented to SSCl/HPSCI joint hearing (September 18, 2002), at 28-29.
138
JIS, written statement presented to SSCl/HPSCI joint hearing (September 24, 2002), at 2-3.
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trophies. Particularly after the collapse of the Soviet Empire, managers de-emphasized the FBI's
CI mission, assignments to national security billets became less and less attractive within an
organization focused upon criminal cases. The reluctance of agents to "homestead" in national
security work in stead of working CT and CI issues merely on a rotational basis, which was
much more common helped preclude any possibility of breaking the hegemony of the "casefile"
mindset within the organizaztion's national security components.
On top ofa general lack of emphasis upon national security work within the organization
as a whole, the FBI suffered in particular from a positive aversion to long-term strategic analysis
of the sort routinely expected of intelligence agencies. CT investigations, after all, were at least
investigations and bore at least some resemblance to ordinary law enforcement work. Analysis,
however, was apparently anathema. Even as the FBI received ever-greater amounts of CT money
and personnel during the late 1990s, therefore, it showed little interest in devoting more effort to
strategic intelligence or to analytical efforts aimed at Al-Qa'ida cells in the United States.
According to tie JIS, the FBI's disinterest in analysis work led managers systematically to
reassign good analysts from doing strategic analysis to supporting operational (i.e., investigative)
units. JIS investigators were "told that the FBI's al-Qa'ida-related analytic expertise had been
'gutted' by transfers to operational units and that, as a result, the FBI's [international terrorism]
analytic unit had only one individual working on al-Qa'ida at the time of the September 11
attacks."39 Indeed, the FBI seems to have regarded "intelligence analysts" as little more than a
pool of disposable personnel assets to be redeployed as needed to other responsibilities wh ich
perhaps explains the Bureau's longstanding failure to insist upon clear standards for adjudging
intelligence "analyst" qualifications in the first place.'"
139
140
RS, written statement presented to SSCl/HPSCI joint hearing (September 18, 2002), at 28-29;
see also id. at 18.
The SSCI became so concerned about the tininess of these standards that it enacted specific
provisions in the Fiscal Year 2003 Intelligence Authorization Bill (Public Law 107-306) to
encourage the Director of Central Intelligence to promulgate Community-wide standards for
individuals performing intelligence functions. As the Senate Report put it,
"the Committee has become concerned that, particularly in the area of
analysis, elements of the Intelligence Community are denominating
individuals as 'analysts' or 'intelligence analysts' without adherence to
a meaningful common definition of that wad."
U.S. Senate Select Committee on Intelligence, S.Rep. 107-149, Report to Accompany S. 2506,
107th Cong., 2d Sess. (May 13, 2002), at 12.
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Discouragingly, all of the problems found by the JIS with the FBI's chronic inability to
perform serious intelligence analysis occurred despite a major reorganization of the FBI
announced in late 1999 in order to improve the Bureau 's ability to do analysis. In November
1999, FBI Director Louis Freeh amounced that he was creating a new "Investigative Services
Division" within the FBI to "coordinate the FBI's international activities, integrate and
substantially strengthen its analytic capabilities, and oversee the Bureau's crisis management
functions." This reorganization was the result of Director Freeh's 1998 "Strategic Plan," which
allegedly "focuse[d] on the need to improve the FBI's capacity for information analysis."'
According to Attorney General Reno, this new organizational scheme would "help enable the
Bureau to face the challenges of the next millennium."' The Bureau's failures leading up to
September 11 thus suggest the possibility that no internal FBI reorganizations will prove able to
effect real reform.
(ii) Problems Illustrated by the Phoenix EC
According to the JIS, the FBI's handling of the Phoenix EC was "symptomatic of a focus
on short-term operational priorities, often at the expense of long-term, strategic analysis. . . . [W]e
have found that the FBI's ability to handle strategic analytic products, such as the Phoenix EC,
was, at best, limited prior to September 11, 2001." "
"The manner in which the Phoenix EC was handled demonstrated
how strategic analysis took a back seat to operational priorities
prior to September 11. * * * Even the analytic unit responsible for
strategic analysis was largely producing tactical products to satisfy
the operational section. In fact there was no requirement [at the
time] to handle projects with nationwide impact, such as Phoenix,
any different[ly] than any other project."'
Due to "[i]nadequate information sharing within the FBI, particularly between the operational and
141
142
143
144
Federal Bureau of Investigation, press release (November 19, 1999), at 1-2.
Id. at 1.
JIS, written statement presented to SSCl/HPSCI joint hearing (September 24, 2002), at 2.
JIS, written statement presented to SSCl/HPSCI joint hearing (September 24, 2002), at 8.
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analytic units,' the recipients of the Phoenix EC lacked any knowledge of information
already within the FBI's possession, but lost or ignored in a myriad of disaggregated casefiles
that would have put the EC into a broader context of longstanding concern with terrorism threats
related to Middle Eastern flight school students training in the United States. 146
As it was, even those FBI "Intelligence Operations Specialists" (IOS s) the name itself
reveals the Bureau's preference for "operations" over "analysis" who did see the Phoenix EC
decided against sending it to the FBI's lone analytic unit concerned with terrorism.'47 Nor is it
clear that it would have done much good to pass the EC to that unit, as it had been effectively
crippled by personnel poaching and bureaucratic infighting.
"[T]he capability to conduct strategic analysis on al-Qa'ida was
limited because five ofthe unit's analysts had transferred into
operational units. The Joint Inquiry Staff has been told that every
time a competent new analyst arrived, the UBLU or RFU would
either try to recruit them as IOS or would refuse to share
information. This allowed the ULBU and RFU to control the
information flow. The end result, unfortunately, is that there is no
one left whose role is to perform strategic analysis."48
Against this deep background of analytical and organizational dysfunction and mismanagement in
the national security arena, it is hard to imagine that real CT and CI analytical reform within the
FBI is really possible.
(2) The FBI's Inability to Know what it Knows
(a) Technological Dysfunction
145
146
JIS, written statement presented to SSCl/HPSCI joint hearing (September 24, 2002), at 2.
For a summary of information relating to this context, see JIS, written statement presented to
SSCl/HPSCI joint hearing (September 24, 2002), at 3.
147 ITS, written statement presented to SSCl/HPSCI jcint hearing (September 24, 2002), at 7.
148
JIS, written statement presented to SSCITHPSCI joint hearing (September 24, 2002), at 8.
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In addition to these cultural and organizational problems or perhaps in large part
because of them the FBI has never taken information technology (IT) very seriously, and has
found itself left with an entirely obsolete IT infrastructure that is wholly inadequate to the FBI's
current operational needs, much less to the task of supporting sophisticated all-source intelligence
fusion and analysis. Fundamentally, the FBI's IT system has changed surprisingly little since the
late 1980s or early 1990s, a decade during which the rest of the computer world moved at
extraordinary speed.
The handling of the Phoenix EC demonstrates some of these technological deficiencies,
highlighting the "limitations in the electronic dissemination system" that kept FBI supervisors
from seeing the document even when it was addressed to them.' According to the JIS, the
problems with the Phoenix EC "are consistent with the complaints we have repeatedly heard
throughout this inquiry about the FBI's technology problems."5� The Bureau's electronic system
for disseminating messages such as the Phoenix EC was itself "considered so unreliable that many
FBI personnel, both at the field offices and at FBI headquarters, use e-mail instead."' Since
most offices at the FBI lack a classified e-mail capability, this represents a fundamental obstacle to
information-sharing of even the most rudimentary sort. Moreover, as users have fled the
dysfunctional case-tracking system, the Bureau appears to have lost any ability to track leads
entered into it. The 1I5, for instance, was told that "there are 68,000 outstanding and unassigned
leads assigned to the counterterrorism division dating back to 1995." At the time of our Inquiry,
the FBI had no idea whether any of these leads had been assigned and dealt with outside the
electronic system.152
This disastrous information-management system compares unfavorably with the systems
developed elsewhere in the Intelligence Community for sharing data and providing analysts with
the information they need to conduct intelligence "fusion." In this respect, it is useful to compare
the IT capabilities of the CIA with those at FBI.
"At CIA, the DCI's CTC maintains a massive database of terrorist
149
JIS, written statement presented to SSCl/HPSCI joint hearing (September 24, 2002), at 9.
iso
JIS, written statement presented to SSCUHPSCI jcint hearing (September 24, 2002), at 2.
151
JIS, written statement presented to SSCl/HPSCI jcint hearing (September 24, 2002), at 9.
152
JIS, written statement presented to SSCl/HPSCI jcint hearing (September 24, 2002), at 9.
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related information going back at least two decades. Within this
database are analytic papers, messages between CIA headquarters
and CIA stations and bases around the world, signals intelligence
reports from the National Security Agency (NSA), and various
briefmgs, memoranda, and working notes."'
At the most generous, the FBI is years away from having such IT capabilities, even if the
Bureau's organizational structure and institutional culture permitted such tools to be used
appropriately.
The FBI's TRILOGY project seeks to improve the Bureau's IT infrastructure in order to
bring it up to IC standards, but this project was only begun at the very end of the tenure of
Director Louis Freeh who himself apparently did not even use a personal computer and
remains a very long way from completion. Moreover, as suggested above, even if TRILOGY
succeeds in fringing the FBI up to "Community standards" in the IT realm, those standards are
themselves inadequate to the challenges of 21't-century intelligence analysis.
(b) A Pattern of Failures
Unfortunately, this combination of organizational, cultural, and technological impediments
has led the FBI into a recurring pattern of information dysfunction. Time after time during the
past few years, the Bureau has distinguished itself by its inability to assess what is in its own files
much-less to make productive analytical use of such information. This occurred, for instance, in
� 1997 when the FBI misplaced vital infoluration in its own files linking the People's Republic of
China to illicit political influence operations during the 1996 U.S. Presidential campaign.' It
happened with the belated discovery of thousands of pages of documents related to convicted
Oklahoma City bomber Timothy McVeigh just days before his execution.' It happened on
several occasions during the FBI's botched handling of the Wen-Ho Lee nuclear espionage
153
154
JIS, written statement presented to SSCl/HPSCI jcint hearing (September 20, 2002), at 3.
See U.S. Department of Justice, Office ofthe Inspector General, The Handling of FBI Intellience
Information Related to the Justice Department's Campaign Finance Investigation (July 1999)
[unclassified Executive Summary], available at http://vAvw.usdoi eov.80/oig/fbi cfi/tbicti .1 htm.
155 See, e.g., David Johnson, "Citing FBI Lapse, Ashcroft Delays McVeigh Executicn," New York
Times (May 12, 2001), at Al.
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investigation, when agents in the Albuquerque field office or at FBI Heaciquarters misplaced or
failed to pass along crucial information that might have permitted agents to discover Lee's
unlawful removal of nuclear secrets from the Los Alamos National Laboratory months or years
before they finally did.56
As detailed by the MS in the present inquiry, the same thing happened with the Phoenix
EC and the many tidbits of information in the FBI's possession relating to terrorists' interest in
U.S. flight schools. It also happened in the FBI's belated revelation to the Joint Inquiry in the late
summer of 2002 of certain information relating to the activities of September 11 hijackers Khalid
al-Mihdhar and Nawafal-Hazmi
Being able to know what one knows is the fundamental prerequisite for any organization
that seeks to undertake even the most rudimentary intelligence analysis. The FBI, however, has
repeatedly shown that it is unable to do this. It does not know what it knows, it has enormous
difficulty analyzing information when it can find it, and it refuses to disseminate whatever
analytical products its analysts might, nonetheless, happen to produce. The Bureau's repeated
failures in this regard despite successive efforts to reorganize its national security components
have led many observers to conclude that "mixing law enforcement with counterintelligence"
simply cannot work. As one former director of the National Security Agency has suggested,
"cops" cannot do the work of "spies."' This insight, in turn, has led to widespread public debate
over the need for radical structural reform including removing the CI and CT functions from the
FBI entirely.
B. The Need to Consider Radical Reform
For all of these reasons, I believe that a very strong argument can be made for removing
the CI and CT portfolios from the FBI. Despite repeated reorganizations, the FBI has simply
performed too poorly for the American people to have much faith in its ability to meet current and
future challenges no matter how many aggressive "reform" plans are announced by FBI
management. Even a year after September 11, in fact, the FBI's deputy director sent angry e-mail
messages to Bureau aid offices declaring that he was "amazed and astounded" that the Special
Agents in Charge (SACs) still refused to commit essential resources to the fight against terrorism
156
157
See Thompson & Lieberman, supra,at 3-4 & 11.
Gen. William Odom, USA (ret.), written statement presented to JIS hearing (October 3, 2002),
at 4.
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and still refused to share information properly with Headquarters. "You need to instil a sense of
urgency," he told them, insisting that the SACS send their agents "out on the street and develop
sources" and "demand that information is being sent" to headquarters. 158 If September 11 cannot
persuade the existing FBI to focus properly upon terrorism, perhaps nothing can.
Some observers have thus suggested placing the Bureau's CI and CT functions within
their own separate agency, a stand-alone member of the Intelligence Community that would be
responsible for domestic intelligence collection and analysis but would have no law enforcement
powers or responsibilities. This would be, in effect, an American analogue to the British Security
Service (a.k.a. MI-5) or the Australian Security Intelligence Organization (ASIO).
There is much to recommend such an approach. The FBI today performs the domestic
intelligence role within the U.S. Intelligence Community. Its problem, however, is that it
performs this task poorly and arguably cannot be made to perform it well given the cultural and
organizational chasm that exists between a "casefile" organization and a true intelligence
organization. An MI-5 analogue would allow our domestic intelligence collection and analytical
functions to be performed by a "pure-knowledge" organization freed from the tyranny of the
casefile and thus able properly to perform these functions.
Paradoxically, such a freestanding "domestic spy agency" might offer advantages over our
current structure even in terms of civil liberties. Today, domestic intelligence collection is
performed by FBI special agents who, in addition to their "pure-knowledge" functions, also have
law enforcement powers: they have badges, can carry firearms, and can arrest and detain
Americans. I suspect that most Americans, however, would feel safer having such collection
performed by intelligence officers who do not possess coercive powers and who can only
actually take action against someone through a process of formal coordination with law
enforcement officials (e.g., an office remaining within the FBI that would function as an analogue
to the Special Branch, which performs law enforcement liaison functions with the British Security
Service).
Should the creation of a wholly freestanding agency turn out to be, in bureaucratic terms,
"a bridge too far," an alternative approach might be to separate the CI and CT functions of the
FBI into a semi-autonomous organization. This approach envisions an organization that would
158
Eric Lichtblau, "FBI Officials Say Same Agents Lack a Focus on Terror," New York Times
(November 21, 2002), at 1 (quoting Deputy Director Bruce J. Gebhardt).
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still report to the FBI director for purposes of overall coordination and accountability, but which
would in all other respects (e.g., training and promotion pipelines, IT systems, management
structures, and chains of command) be entirely separate from the "criminal" components of the
FBI (This approach might be called the "NNSA option," after Congress' effort in 1999 to create
a semi-freestanding National Nuclear Security Administration within the Energy Department
though any effort to do this with the FBI would have to avoid the rampant "dual-hatting" that has
eroded the effectiveness of our NNSA refoins.)
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
modem 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 21" 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.
CIA officials have publicly boasted that they had operatives in Afghanistan before
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September ii,'" 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 kature 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"' 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-offrial
cover (NOC) officers,' but such assignments are the rare exception rather than the rule, and
NOCs too often suffer career damage because their no nconvent ional assignments necessarily
remove them from the usual network of DO contacts and advancement opportunities.
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 prolikration targets. As former DCI James Woolsey has observed,
"[o]ne rreds 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."'
159
160
161
162
See, e.g., Drogin, supra (quoting CIA Deputy Director for Operaticris Jim Pavitt that 'We were
there before the 11th of September").
FBI Section Chief Timothy D. Bereznay, statement for the record submitted to the House
International Relations Committee (May 11, 2000), at 2.
Both DC I Tenet, during his confirmation he and his predecessor John Deut ch 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 befcre SSCI hearing
(February 22, 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).
James Woolsey, testimony bekore Senate Judiciary Committee Subcommittee (September 3,
1998), available from Federal News Service transcripts (September 3, 1998).
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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 Al-Qa'ida before
September 11.
The CIA has relied too much, in my view, upon traditional embassy-based HUMINT, and
not enough upon NOC s. 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 also of necessarily limited
utility in countries in which the host govemnent 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 ofNOCs. A greater emphasis upon non-Caucasian NO C 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 irrportance 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
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workplace diversity for its own sake. Rather, the Committees believe that the challenges ofboth
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, 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, 2001.1' 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
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.'" 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.
163
164
DCI Tenet confirmed the existence of CIA offensive operations against Al-Qa'ida in public
testimony before the Joint Inquiry. See George Tenet, testimony befcre joint SSCl/HPSCI
hearing (October 17, 2002), available from FDCH Political Transcripts (October 17, 2002)
(dedining to discuss specific legal authorities receised 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").
Sandy Berger, testimony before joint SSCUHPSCI 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
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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
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 shoul d 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.
B. Oversight Challenges
Perhaps in part because of frustrations with the existing covert action system, it has been
widely reported that tie DeEnse Department is interested in augmenting a quasi-covert action
capability of its own, based upon its highly competent cadre of special operations forces (SOF).'
If this parallel system works, I wish it well: the covert action side of the war on terrorism could
165
See, e.g., Schmidt & Ricks, supra.
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certainly use the manpower and expertise. It is worth emphasizing, however, that a greater DOD
involverrent in the world of covert action could present oversight challenges for Congress.
The oversight mechanism and reporting requirements for covert action contaired 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 governnent entity for this purpose if he sees frt. 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 n ot 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 committees 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.
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
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of institutions and officials of government"' 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 hit elligence Community personnel at all
levels should be held accountable for any omission, coininission, or
failure to meet professional standards in regard to the identification,
prevention, or disruption of terrorist attacks, including the events of
September 11, 2001."
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 gave 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 enployees 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
166
SSCI & HPSCI, "Initial Scope of Joint Inquiry" (June 5, 2002), from the preamble.
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from attack, professional advancement should proceed by Darwinian selection.
For these reasons, it is disappointing to me that despite the Joint Inquiry's explicit
mandate to "lay a basis for assessing the accountability ofinstitutions and officials of govemment"
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 Ins 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
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 aced.
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,
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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 bit 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 effort
before the attacks: DCIs George Tenet and John Deutch, FBI Director Louis Freeh, and NSA
Directors Michael Hayden and Kenneth Minnthan, and forrrer 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.
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