Report of the Joint Inquiry Into the Terrorist Attacks of Se

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Re: Report of the Joint Inquiry Into the Terrorist Attacks o

Postby admin » Sat Mar 26, 2016 8:35 am

Part 4 of 5

Reflecting on his time as DCI, Judge Webster explained that "[o]ccasionally I would issue something that looked nominally like an instruction, it was mostly hoping with a lot of groundwork behind it. ..something would come of it." If the head of national intelligence were placed at the White House "without troops," Judge Webster argued, "it's difficult for me to see how it would be truly effective."

Former CIA Inspector General Fred Hitz agreed with Judge Webster, describing the Secretary of Defense as an "800-pound gorilla" that the DCI has never been able to wrestle to the ground because of the Secretary's responsibility and command authority for defense intelligence agencies. Mr. Hitz recommended "realistic" proposals giving the DCI "a kibitzing power over selection of Director of NSA and more collaborative powers with the Secretary of Defense."

Former Congressman Hamilton responded that the Director of National Intelligence should have "real authority and real personnel authority": "I wouldn't put him in the White House, as Judge Webster is suggesting [1 would]." General Odom argued that the DNI "has to take some organizational capability with him -he can't just stand out there in an office and be a czar over in the White House." He should have an expanded National Intelligence Council as a reinforcement which together with the DCI's Community management staff give him "a pretty good organizational base." As for limiting change to strengthening the existing DCl position, Congressman Hamilton asserted:

We're in a new world, and we have to begin to think of ways to structure this. I have heard the argument about strengthening the DCI for 35 years. ...It's a move in the right direction. But I don't think it gets us into the new era we're in.


E. Counterterrorism within the U.S and Creation of a Domestic Intelligence Agency

The witnesses addressed the organizational and other challenges to the effective conduct of counterterrorism operations in the United States. To Congressman Hamilton, the CIA and FBI must "fundamentally alter" policies and practices: "The FBI, with its new emphasis on prevention, will have to focus more on counter-terrorism, and the CIA will have to trace international leads to the homeland." Indeed, "the threat of terrorism is going to require an unprecedented overlap between intelligence and law enforcement." Although Congressman Hamilton favored

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restructuring the Intelligence Community so that "resources can be coordinated and agencies aid, not obstruct one another," he did not recommend a new organization to conduct counterterrorism domestically:

I don't think it's a statutory solution, a legislative solution. ...Most important, the two agencies will have to share information and work together to infiltrate, disrupt and destroy terrorist cells...If the shortcomings leading up to 9/11 were systemic in nature, the solution lies in better system management, the handling and analysis of vast amounts of information, and the distribution in a timely manner of the key conclusions to the right people.


[Page 368]

Congressman Hamilton urged recognition of the fact that CIA and FBI have "for a very long period" done their jobs "quite well" and they are now "suddenly confronted with a new world." The decision to transform FBI priorities from law enforcement to prevention is a "huge change," and we cannot expect the Bureau "to turn around on a dime." Rather than new legislation, change "takes leadership, it takes oversight."

In contrast, General Odom argued for a major change in the organization of U.S. counterintelligence and counterterrorism. Counterintelligence, he urged, "is in the worst shape of all." Five agencies have counterintelligence operations -FBI, CIA, and three military services - "with no overall manager." As a consequence, "[t]he parochialism, fragmentation, and incompetence are difficult to exaggerate in the U.S. counterintelligence world." Fragmentation and lack of skills ensures "dismal performance" because "terrorists, like spies, come through openings."

General Odom recommended that the "first step" is "to take [counterintelligence] responsibility out of the FBI, leaving the Bureau with its law enforcement responsibilities, and create a National Counterintelligence Service under the DCI with operational oversight over the [counterintelligence] operations of the CIA and the three military departments in the Pentagon." The new organization would not be given arrest authority, which would remain with the FBI and other law enforcement organizations: "The FBI might be the agency to use [intelligence] to go make arrests and provide the evidence for prosecutions, but the business of locating spies, finding out what they're doing, understanding patentable collection, terrorist infiltrations, et cetera, can be primarily an intelligence operation."

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Judge Webster did not "warm to the idea of separating counterterrorism from the FBI." He responded to proposals for a separate domestic intelligence service modeled after England's MI-5 service:

We're not England. We're not 500 miles across our territory. We have thousands of miles to cover. Would you propose to create an organization that had people all over the United States, as the FBI does?


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The Congress, Judge Webster argued, would "never vote the resources to have a second FBI throughout the country." It is better, then, "to use what we have and train them to be more responsive." Rather than spending time "moving the boxes around," Judge Webster recommended that Congress look to those areas in the system which need to be shored up with appropriate resources and training." The "crucial" example, he testified, was the FBI's twelve year-old information system, that "the FBI has been trying to get help with for years, and has not succeeded." Judge Webster also called for "new sets of relationships between CIA, which has been functioning largely abroad, until more recently, with the FBI's participation and expanded legal attache relationships, and the law enforcement responsibilities of dealing with the threat here":

More than any other kind of threat, there is an interrelationship between law enforcement and intelligence in dealing with the problem of terrorism ...We need both investigative capability and intelligence collection capability, as well as those who go through the bits and pieces and fill in the dots.


Senator Rudman maintained that creation of a British-styled MI-5 domestic intelligence service would not solve the problems we face: "You have got enormous domestic collection capability in the FBI, assuming it is focused in the right direction." He concluded that the Intelligence Community could enhance its campaign against terrorism by adopting measures designed to share and cooperate amongst its members:

[T]he more jointness that you have between these agencies, the more they work in joint counterterrorism centers, the more their information databases become common, the more there is constant daily, hourly cooperation between them, the more the NSA is brought in by statute, if necessary, to supplying the FBI with domestic counterterrorism information, then you will do the improvement you need.


Senator Rudman spoke forcefully against proposals for a new counterterrorism organization:

I do not believe we need new structures or new systems. We may need different kinds of people, we may need different kinds of technology, but I don't think [page 370] there is anything wrong with the systems. I think there is a lot wrong with how they have been used over the last ten years.


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Senator Rudman did not believe that a law-enforcement culture makes it impossible for the Bureau to be an effective intelligence- gathering agency, an issue he has also addressed as chairman of the President's Foreign Intelligence Advisory Board. "The best domestic intelligence-gathering organization...on the ground today is the FBI," although the Senator agreed that "[t]he problem is that they have had a law enforcement mind-set." In spite of that problem, the Bureau has 56 field offices and 44 offices overseas, and, therefore, "it is not a question of trying to get a new agency to do the domestic intelligence, counterintelligence; it is a question of [getting] the resources" necessary for the task.

Following the Joint Inquiry hearings, the Commission that Governor Gilmore chairs on assessing domestic response capabilities against terrorism, released recommendations in advance of its fourth annual report in December 2002. The Commission recommended establishment of a National Counter Terrorism Center (NCTC), a "stand-alone organization" headed by a Senate confirmed, presidential appointee, "responsible for the fusion of intelligence, from all sources, foreign and domestic, on potential terrorist attacks inside the United States." The Commission also recommended that "collection of intelligence ...on international terrorist activities inside the United States, including the authorities, responsibilities and safeguards under the Foreign Intelligence Surveillance Act, which are currently in the FBI, be transferred to the NCTC" for two reasons: First, "while the FBI remains the world's preeminent law enforcement agency, there is a big difference between dealing with a terrorist act as a crime to be punished and dealing with it as an attack to be prevented." Second, "it is important to separate the intelligence function from the law enforcement function to avoid the impression that the U.S. is establishing a kind of "secret police."' The proposed NCTC would not have arrest authority.

Governor Gilmore's preference is "to maintain these [domestic intelligence] functions within the FBI and to build upon [its] considerable structures, sources and resources to upgrade and improve these functions." Nevertheless, he said he would support the Commission's recommendation, given the oversight provisions and legal restrictions described in the Commission's preliminary report to ensure that our civil liberties are not diminished. Another Commission member disagreed with the [Page 371] recommendation, however, asserting in

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dissent that "[t]he FBI culture as a law enforcement agency provides a backdrop and check and balance against any abuse of civil liberties."

F. A Legislative Charter for the Intelligence Community

Beyond streamlining the Intelligence Community by, for example, enacting legislation to create a new Director of National Intelligence, Congressman Hamilton urged the enactment of a "legislative charter" for the Community, a task he knew from personal experience would be difficult to accomplish:

U.S. intelligence is governed by a set of disparate laws and executive orders produced over the last fifty-five years. No single one of these laws provides a comprehensive legal foundation for our massive intelligence establishment. This is a remarkable state of affairs in a country that takes the rule of law so seriously.


In short, the Congressman testified, "[w]e need a statutory foundation for U.S. intelligence."

G. Respect for the Rule of Law

Notwithstanding differences on particular proposals, many witnesses joined in the conviction Congressman Hamilton voiced that "[r]eforms in the Intelligence Community must not come at expense of the rule of law and respect for civil liberties." As Judge Webster put it: "I hope that in the rush to judgment, we will remember who we are and [that] the methods we choose, both for intelligence and for law enforcement, will be consistent with who we are in this country." Congressman Hamilton described the challenges ahead: "Intelligence work requires that our government obtain information, and obtaining that information requires surveillance of people who have committed no crime --the challenge is to facilitate information-gathering about suspicious people, while insulating legitimate personal and political activity from intrusive scrutiny."

Congressman Hamilton also stressed that responsibility for protecting basic rights lies in several places:

It's very easy to overlook these matters of privacy and civil rights --it has to come from the top of the agency. It has to be protected by the courts. The United States Congress, the intelligence committees, have to be sensitive to the manner in which intelligence activities are carried out, and they have to zero in on civil rights and liberties.


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[page 372]

Judge Webster added that ensuring that investigatory tools are used in accordance with the law is "an important role for the Department of Justice," and, therefore, he is opposed to law enforcement "go[ing] outside the Department of Justice at the federal level by giving it to people who are not trained and do not understand the requirements that the Constitution and our laws impose on them."

General Odom asserted that "[t]he [Congressional] committees that did the investigation [of the Intelligence Community] in the 1970s did a great service in implementing the system that they have at NSA now, ensuring that rights are not violated":

Congress should get credit for that. And as the director of the agency I felt better for having this. I felt that I could be certain that my bureaucracy was not going to run away and violate these kind of rights. And it was a thoughtfully done process that created that system in the 1970s.

Finally, General Odom emphasized the importance of accountability:

In the military, we have a tradition. When you screw things up, we relieve the commander, which leaves me puzzled about the behavior of the Administration in the intelligence area. I consider intelligence...a military engagement, and I would hold the commanders as responsible as I would ship commanders who run their ships aground. They don't stay around after they've run them aground, even if they are not very guilty.

X. Information Sharing

Before September 11, 2001, the Intelligence Community had not melded into an effective team to prevent terrorist attacks within the United States. Efforts had been taken to improve cooperation between the CIA and FBI. After the DCI created the CTC in 1986, for instance, CIA and FBI cross-detailed personnel to each other's counterterrorism units, but this did not lead to a plan between those two agencies or across the Community to integrate intelligence collection and analysis. In the absence of a plan, agencies tended to operate independently.

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Prior to September 11, information was inadequately shared not only within the Intelligence Community, but also between the Community, other federal agencies, and state and local authorities. In sum, the Joint Inquiry discovered significant problems in how intelligence agencies shared information among themselves and with entities that need information to protect the nation against terrorist attack.

A. Information Sharing between Intelligence Agencies and within the Federal Government

In closed and open hearings witnesses from both the intelligence and law enforcement communities spoke of the need to share information. As the Comptroller General put it in a statement submitted for the Joint Inquiry record, "The success of a homeland security strategy relies on the ability of all levels of government and the private sector to communicate and cooperate effectively with one another."

a. National Security Agency

NSA intercepts well over [ ] communications each day, which it uses to create reports for dissemination to components of the Executive Branch that have expressed requirements for certain information. The growth of global communications and computer networks has significantly increased the volume of communications NSA can intercept. One of the major challenges the agency faces is to find information buried in the avalanche of electronic data it receives every day. In deciding which communications [ ] to target, which [ ] to monitor [ ], and which communications to select [ ], NSA tries to maximize its exploitation capability, including its linguistic and analytic workforce.

[The effort to find and report the most useful information results in decisions at every step in the exploitation process that leave information behind, unanalyzed and unreported. Thus, potentially vital information is rejected before analysts see it, or, if it reaches an analyst, it is not reported to customers. For example, NSA informed the Joint Inquiry that it reported some but not all communications analyzed in 1999 and the first half of 2000 involving a [page 374suspected terrorist facility in the Middle East linked to al-Qa'ida activities directed against U.S. interests. NSA did not publish other communications involving this facility and as.5ociated with a participant

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in a January 2000 meeting in Malaysia, hijacker Khalid al-Mihdhar. As was explained in the section of this report devoted to that meeting, these communications fell below NSA 's reporting threshold].

NSA officials described the threshold as a subjective standard that can change every day. It is a product of several factors including the priority of the intelligence topic (for example, threat warnings have the highest priority), the level of customer interest in a particular subject, the perceived value of the information, and the amount of intercept available for analysis and reporting. In short, analysts have considerable discretion in reporting information, especially when it is fragmentary or obscure.

A major concern of NSA customers is that this winnowing process is not sufficiently well informed to avoid leaving potentially vital but seemingly irrelevant information on the "cutting room floor," particularly with regard to targets like al-Qa'ida where the smallest piece of information may fill in the mosaic of the organization and its plans. To make well-informed decisions about what to report, NSA needs detailed knowledge about how raw intercept data might respond to customer needs. NSA deploys many analysts to customer agencies to understand their needs and help them shape NSA reports. This is an important, but not complete solution to the problem.

NSA officials complained to the Joint Inquiry that its customers rarely reciprocate by assigning analysts to NSA to access its information, including raw intercepts. An NSA counterterrorism supervisor noted that the productivity of NSA analysts was substantially increased when a CIA analyst with access to Directorate of Operations cables was detailed to NSA.

NSA officials are concerned about sharing raw intercepts in large part because some intercepts contain information about "U.S. persons" that NSA must protect under "minimization procedures" established by the Attorney General and the Foreign Intelligence Surveillance Court. It is not practical to review all raw traffic to strip off this information, and minimized [page 375]

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information might not have the same value as original text. NSA officials also cited concerns about protecting sources and methods that produced the data and the difficulties in separating content from information about them.

b. The Central Intelligence Agency

CIA personnel also make decisions about sharing information, particularly with regard to [ ] cables that contain vital information about ClA activities.

[NSA has told the Joint Inquiry that regular access to [ --] cables would enhance its understanding of material it intercepts and increase the productivity of its analytic workforce. The Director of the Defense Intelligence Agency expressed particular concern about cables relating to the Malaysia meeting. Joint Inquiry staff identified numerous CIA [-] cables concerning that meeting that contained information of value to all-source analysts. In response to a Joint Inquiry request, DIA identified four leads its terrorism analysts could have pursued in early 2000 and one in December 2000, had information been shared. DIA also identified three leads in [CIA] cables in August 2001 that would have allowed it to take action concerning the Malaysian meeting, Zacarias Moussaoui, Khalid al-Mihdhar, and Nawafal-Hazmi].

[CIA is concerned that access to cables would place its sources and methods at risk because cables contain information about activities, including meetings with human assets. Most analytic personnel recognize this concern and profess not to want operational details or information about sources and methods. These analysts see information of potential significance, embedded in the raw data. The CIA, they believe, filters out many intelligence "nuggets" before analysts receive the information. The agency has itself recognized the value of this data by integrating its counterterrorism analysts into the CTC where they are supposed to have full access to raw traffic].

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c. The Federal Bureau Of Investigation

The FBI collects vast amounts of information from both criminal and intelligence investigations, including interviews, wiretaps, physical searches, grand jury material, and

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intelligence disseminated by other members of the Intelligence Community. The FBI's problem is twofold: 1) dissemination of information within the Bureau and, 2) sharing of information with other members of the Intelligence Community. In some cases, the FBI was limited by legal or policy constraints on, for example, the use of grand jury information and information obtained through criminal wiretaps. The USA Patriot Act eliminated some of those constraints. However, the FBI has also been hampered by its own limitations, for example, a failure to develop a strategy for sharing information. As its Deputy Assistant Director for Counterterrorism and Counterintelligence testified:

We did not leverage what we had information-wise, and we did not leverage what other agencies had as information. We lacked analysts, we lacked linguists, we lacked electronic architecture that allows to us interact with other organizations. ... we lacked size. And we lacked attacking the target from 360 degrees. For example, we did not develop a program that leveraged what we have as expertise, what the Treasury had as expertise, and what the [CIA] had as to expertise for a concentrated, focused, aggressive investigation in finances. Terrorist organizations ...like al-Qa'ida ...have several points of strength, but several points of weakness. ...We did not leverage State and local police. The culture says you don't share that information.


In addition, as a result of technological problems, FBI analysts did not have access to all information within the Bureau. The FBI's Deputy Assistant Director for Counterterrorism Analysis testified that "the FBI lacked effective data mining capabilities and analytical tools, it has often been unable to retrieve key information and analyze it in a timely manner, and a lot has probably slipped through the cracks as a result."

Before September 11, FBI personnel were not trained or equipped to share foreign intelligence developed in counterterrorism investigations with the Intelligence Community or even with other units within the Bureau, which deprived analysts throughout the Community of information. The FBI's Chief of the Counterintelligence Analysis Section in the Counterintelligence Division explained: [page 377]

Technology alone, however, is not the silver bullet; gaining access to all relevant FBI information associated with an individual terrorist suspect, terrorist group or State Sponsor was also an issue the analysts faced periodically. Information was sometimes not made available because field offices, concerned about security or media leaks, did not upload their investigative results or restricted access to specific cases. This, of course, risks leaving the analysts not knowing what they did not know.


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Finally, the FBI typically used information obtained through the Foreign Intelligence Surveillance Act only in the cases in which it was obtained and would not routinely disseminate the information within the Bureau or to other members of the Intelligence Community.

d. The Department Of State

One of the principal State Department contributions to the fight against terrorism is the TIPOFF watchlist program, which, according to its director, was established in 1987 after the Department issued a visa to someone the Intelligence Community knew was a terrorist.

According to TIPOFF's Director, from inception to Summer 2002, the program prevented 763 individuals from receiving visas to enter the United States. However, the Joint Inquiry was told that information flow into TIPOFF before September 11 was less than complete. It was not until 1995, eight years after a terrorist was mistakenly allowed into the United States, that the CIA approved State Department declassification of data for inclusion in TIPOFF. Before the change in policy, State would submit a list of names monthly for CIA declassification, and that process delayed the watchlist updates.

Growing concern about the terrorist threat did not noticeably increase the amount of information shared between the Intelligence Community and the State Department before September 11, which, in contrast, advised the Joint Inquiry that it received at least 1,500 CIA Central Intelligence Reports containing terrorist names shortly after September 11. State Department officials also spoke about the difficulty in obtaining data for watchlisting purposes from the FBI National Crime Information Center, in spite often years of negotiations with the Bureau for access.

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September 11 hijackers Khalid al-Mihdhar and Nawaf al-Hazmi provide perhaps the most glaring examples of incomplete information sharing with the State Department. As is demonstrated in other sections of this report, the CIA had reportable information about these men long before it asked that they be "watchlisted" in August 2001. As DCI Tenet testified, this failure is not the result of a limited problem in the systems in place:

The fact that we did not recommend al-Hazmi and al-Mihdhar for watchlisting is not attributable to a single point of failure. There were opportunities, both in the field and at Headquarters, to act on developing information. The fact that this did not happen -aside from questions of CTC workload, particularly around the period of the disrupted Millennium plots -pointed out that a whole new system, rather than a fix at a single point in the system, was needed.


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In particular, the DCI pointed to CIA personnel not understanding their obligation to place people on watchlists or the criteria by which watchlist decisions should be made. The Director of the TIPOFF program also described poor attendance at meetings he would arrange to brief CIA personnel on the program and the frequent turnover of CIA personnel assigned to it.

Some improvements have been made since September 11. For example, Ambassador Francis Taylor told the Joint Inquiry that, "in August, 2002, the entire TIPOFF database, including full biographic records on nearly 85,000 terrorist names, photographs, fingerprints, and on-line documentation, was made available to the authorized users from five Intelligence Community and law enforcement agencies." In August 2002 the State Department added over seven million names from FBI indices to a State watchlist, augmenting the 5.8 million names already uploaded.

e. The Federal Aviation Administration (FAA) and the Transportation Security Administration (TSA)

The FAA and its successor TSA are responsible for making threat information available to airlines and airports, domestic and foreign. Without specific information from intelligence [page 379] and law enforcement agencies, TSA is unable to provide the context of threat to carriers and airports. FAA officials told the Joint Inquiry that they have to make convincing cases about threats to the aviation industry because the industry is not willing to absorb additional security costs, absent strong evidence of need.

An example of the importance of providing context is the memorandum an agent in the FBI's Phoenix office prepared expressing concern about Middle Eastern students taking aviation training. Claudio Manno, TSA's Assistant Undersecretary for Intelligence, told the Joint Inquiry that the FAA saw the Phoenix memorandum for the "first time" when Joint Inquiry staff brought the matter up. Mr. Manno testified that, had he been made aware of the document, he would have done "a number of things that were done later" to advance the post-September 11 investigation.

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B. Information Sharing between Intelligence Agencies and State and Local Officials

Although federal officials emphasized the importance of state and local perspectives, the Joint Inquiry heard witnesses complain that the federal government does not systematically involve state and local agencies in counterterrorism programs. Governor Gilmore, Chairman of the Advisory Panel to Assess Domestic Response Capabilities for Terrorism Involving Weapons of Mass Destruction, testified:

[T]o the extent that there has been intelligence sharing, it has been ad hoc. It has been without a real systematic approach. And what would you expect? With the Intelligence Community, it is within the culture if not within the statute that you don't share information. If you do [share information], you are even subject to criminal penalties. ...


Some progress was made on information sharing with state and local officials after the FBI organized Joint Terrorism Task Forces in its field offices. Starting with the first JTTF New York City in 1980, the FBI made a concerted effort to expand the program. As Director Freeh noted, "We doubled and tripled the number of Joint Terrorism Task Forces around the United States so we could multiply our forces and coordinate intelligence and counterterrorism operations with FBI's federal, state, and local law enforcement partners." As of September 11, thirty-five FBI field offices had JTTFs; now all fifty-six offices do.

JTTFs are designed to combine federal and local law enforcement and intelligence capabilities into a cohesive unit to address complex international and domestic terrorism investigations. JTTFs might include federal participants from CIA, INS, the Marshals Service, the Secret Service, TSA, Customs, the Bureau of Alcohol, Tobacco, and Firearms, the State Department, U.S. Postal Inspection Service, the IRS, Park Police, and other agencies.

According to FBI representatives, JTTFs have improved communication among these agencies and enabled the FBI to leverage their capabilities in counterterrorism investigations. For example, INS personnel assigned to the Minneapolis JTTF were able to determine quickly that Zacarias Moussaoui's authority to stay in the United States had expired, leading to his arrest and detention.

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JTTFs have not solved the information concerns of all state and local officials. Baltimore Police Commissioner Edward Norris told the Joint Inquiry that serious gaps remain:

I would like to know exactly what everyone else knows in my city. Whatever Federal agencies are working on in my city. ... I should know exactly what's happening. ...[W]e know for a fact [that] terrorists are living in our cities. We all know they're here; we just don't know who they are, we bring the urban police departments in this country. I would like to know and I would like to have a briefing. ..at least every month. I would like to know what's happening, because I get briefings from my intelligence division every day, so I know who we're working on and I know what we're looking at. ...If I had access in a full briefing from whatever agency investigating within my city, it would make my life a whole lot more efficient and comfortable. I would like to know what is happening, but currently do not.


C. Additional Information Sharing Problems

Detailing employees from one agency to another is often praised as a form of information sharing, but the Joint Inquiry heard that there are several limits to the practice. The Departments of State, Transportation, Treasury, and Energy and the INS, Customs, and other organizations detail personnel to the CIA's Counterterrorist Center, the FBI, and, to a much lesser extent, NSA.

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Intelligence Community agencies also send detailees to non-intelligence and law-enforcement agencies. Numerous task forces and cooperative agreements exist between the FBI and border-security and intelligence agencies. Task forces are also primary vehicles for involving state and local agencies in counterterrorism efforts.

The Joint Inquiry was told repeatedly that host agencies restrict access to information and limit databases detailees can query on security and policy grounds. Detailees often learn about intelligence only after host agency employees make ad hoc judgments to share information.

Representatives of detailing agencies also told the Joint Inquiry that host agency employees often do not understand issues of interest to other agencies and consequently provide detailees with information without context.

Access to databases is also impaired. This is because there is no single architecture in the Intelligence Community that bridges all federal, state, and local government databases.

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Cultural concerns are another problem. Former DIA Director Admiral Thomas Wilson explained to the Joint Inquiry that "information sharing" implies that one' "owns the information." According to Admiral Wilson, agencies must shed the belief that they own information, which, in fact, belongs to the government.

D. The Wall: Barriers between Law Enforcement and Intelligence

Legal and other considerations have substantially influenced the degree to which intelligence agencies share information with law enforcement agencies. These concerns also affected how information was shared between FBI intelligence components and FBI criminal investigators and Department of Justice prosecutors. In interviews and at hearings, the Joint Inquiry has been told repeatedly that a phenomenon known as the "Wall" significantly hampered the free flow of information between the intelligence and law-enforcement entities. Michael Rolince, former Chief of the FBI's International Terrorism Operations Section, testified:

[Page 382] In terrorism cases this became so complex and convoluted that in some FBI field offices FBI agents perceived walls where none actually existed. In fact, one New York supervisor commented that "so many walls had created a maze" which made it very difficult for the criminal investigators.


The "Wall" is not a single barrier, but a series of restrictions between and within agencies constructed over sixty years as a result of legal, policy, institutional, and personal factors. These walls separate foreign from domestic activities, foreign intelligence from law-enforcement operations, the FBI from the CIA, communications intelligence from other types of intelligence, the Intelligence Community from other federal agencies, and national-security information from other forms of evidence.

Following World War II, the National Security Act of 1947 created the Central Intelligence Agency, our first peacetime civilian intelligence organization. Two fundamental considerations shaped that Act: the United States would not establish an organization that coupled foreign and domestic intelligence functions, and the FBI's domestic jurisdiction would be preserved. To satisfy these aims, the Act provided that the CIA would not have police, subpoena, or law enforcement powers and would not perform internal security functions.

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Generations of intelligence professionals have been trained in the belief that the CIA should not play an internal security role. They also learned that sensitive information should be disclosed only to those with a demonstrable "need to know" the information within the rigidities of a national security classification system. In addition, law enforcement personnel have long recognized that confidentiality, protection of witnesses, and secrecy of grand jury information are essential to the successful investigation and prosecution of crimes. Thus, in the law-enforcement and foreign intelligence professions, security practices and strict limits on sharing information have become second nature.

The division between foreign intelligence and law enforcement is illustrated in the different procedures developed for law-enforcement and foreign-intelligence electronic surveillance and searches.

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The Fourth Amendment to the Constitution requires a judicial warrant for most physical searches for law enforcement purposes. In 1967, the Supreme Court held in Katz v. United States, 389 U.S. 347, that the Constitution requires that law enforcement officers engaged in electronic surveillance in criminal investigations also obtain a warrant.

The 1967 decision stated that it was not addressing the question of whether electronic surveillance for foreign intelligence required a warrant. However, in 1912, the Court held that a domestic group could not be subjected to warrantless electronic surveillance, even if authorized by the President or Attorney General, unless a connection was established between the group and a foreign power. The government's argument that surveillance was necessary to collect intelligence about the group as part of an "internal security" or "domestic security" investigation was not sufficient to override the Constitutional warrant requirement. The Court explicitly did not address the President's surveillance power with respect to foreign powers.

A few years later, Congress conducted extensive investigations into the activities of U.S. intelligence agencies, including warrantless electronic surveillance of citizens who were not agents of a foreign power and warrantless physical searches purportedly to identify subversives and protect intelligence sources and methods. These investigations led to the enactment of the Foreign Intelligence Surveillance Act of 1978 (FISA).

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FISA established a special court in response to the argument that the judiciary was not equipped to review requests for foreign intelligence surveillances. Recognizing that intelligence and law enforcement interests would coincide in many cases where foreign intelligence surveillance is appropriate, such as espionage and terrorism investigations, the Act permits information produced by surveillance to be shared with law enforcement, However, to ensure that the division between foreign-intelligence and law-enforcement surveillance was maintained, the Act required a certification that "the purpose" of a proposed FISA surveillance was collection of foreign- intelligence information.

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In the early 1980s, the law enforcement and intelligence communities often worked together often in counterintelligence and counternarcotics investigations. Law enforcement agencies became more acutely aware in the course of this collaboration of the evidentiary complications that could arise as a result of using intelligence information in law enforcement efforts. For example, defense attorneys seeking discovery of investigative information relating to the guilt or innocence of their clients could move to have charges dismissed, if the government withheld information on the basis of national security. Thus, increased interaction between law enforcement and intelligence agencies required that procedures be devised to disseminate intelligence for law enforcement use while protecting intelligence sources and methods. For example, intelligence agencies provided information to law enforcement organizations "for lead purposes only," so as to allow those organizations to act on the information without its becoming entwined in criminal prosecutions.

Personnel within the Justice Department and United States Attorneys' Offices were given responsibility for insulating law enforcement personnel from intelligence information while finding ways for them to benefit from it. These arrangements came to be known as "walls."

To avoid court rulings that FISA surveillances were illegal because foreign intelligence was not their "primary purpose," Department of Justice lawyers began to limit contacts between FBI personnel involved in these activities and DOJ personnel involved in criminal investigations. One result of this approach was that the then Counsel for Intelligence Policy at DOJ, the official

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most responsible for dealing with the FISA Court, was recused from handling FISA applications on al-Qa'ida because she had worked with prosecutors on the embassy bombing prosecution.

The Attorney General issued procedures in 1995 regulating FBI foreign intelligence investigations in which FISA was used and potential criminal activity was discovered. These procedures required notice and coordination among the FBI, DOJ's Criminal Division, and its Office of Intelligence Policy and Review (OIPR). In November 2001, the FISA Court adopted these procedures.

[Page 385]

The wall in FISA matters became thicker and higher over time, as the FISA Court explained in a May 2002 opinion rejecting procedural changes proposed by the Attorney General;

[T]o preserve...the appearance and the fact that FISA [was] not being used sub rosa for criminal investigations, the Court routinely approved the use of information screening "walls" proposed by the government in its applications. Under the normal "wall" procedures, where there were separate intelligence and criminal investigations, or a single counter-espionage investigation with overlapping intelligence and criminal interests, FBI criminal investigators and [DOJ] prosecutors were not allowed to review all of the raw FISA [information] lest they become de facto partners in the FISA [operations]. Instead, a screening mechanism, or person, usually the chief legal counsel in an FBI field office, or an assistant U.S. attorney not involved in the overlapping criminal investigation, would review all of the raw [information] and pass on only that information which might be relevant evidence. In unusual cases. ... [DOJ] lawyers in OIPR acted as the "wall." In significant cases, ...such as the bombings of the U.S. embassies in Africa, ...where criminal investigations of FISA targets were being conducted concurrently, and prosecution was likely, this Court became the "wall" so that FISA information could not be disseminated to criminal prosecutors without the Court's approval.


The thicket of procedures, reviews, and certifications regarding FISA information and contact between foreign-intelligence and criminal investigators led to confusion and error. An FBI attorney noted in an interview that, as detail was added to certain FISA applications, the Court began to expect that level of detail in all applications. Thus, an application to renew a surveillance of an intelligence officer of a foreign government that might have originally required two paragraphs in support grew to many pages, increasing the possibility of error in details.

In March 2000, the Department of Justice discovered substantive errors in factual applications presented to the FISA Court. By September 2000, the Department identified errors in

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about seventy-five FISA matters, and in March 2001 notified the FISA Court of additional errors. In response, the Court required that all DOJ personnel involved in FISA matters certify that they understood that FISA information could not be shared with criminal prosecutors without the Court's approval and an FBI agent involved with the erroneous filings was barred from the Court. While the Department attempted to correct the process that had led to erroneous [Page 386] filings, a large number of FISA surveillances, including many related to international terrorism, expired in the spring and summer of 2001.

[The consequences of the FISA Court's approach to the Wall between intelligence gathering and law enforcement before September 11 were extensive. FBI personnel involved in FISA matters feared the fate of the agent who had been barred and began to avoid even the most pedestrian contact with personnel in criminal components of the Bureau or DOJ because it could result in intensive scrutiny by OIPR and the FISA Court. In addition, because NSA was not certain that it could identify reporting that came from FISA derived information, it began to indicate on all reports of terrorism-related information that the content could not be shared with law enforcement personnel without FISA Court approval].

The various walls have had other consequences of direct relevance to the Joint Inquiry. For example, a CIA employee spoke to two FBI employees in January 2000 about the activities of future hijacker Khalid al-Mihdhar in Malaysia, but did not tell them that he had a U.S. visa. The CIA officer stated in an e-mail at the time that the FBI would be brought "into the loop," only after "something concrete" was developed "leading us to the criminal arena or to known FBI cases." Perhaps reflecting the deadening effect of the long standing wall between CIA and FBI, the FBI agents reportedly thanked the CIA employee and "stated that this was a fine approach," although the FISA wall did not apply in this case.

Even in late August 2001, when the CIA told the FBI, State, INS, and Customs that Khalid al-Mihdhar, Nawafal-Hazmi, and two other "Bin Laden-related individuals" were in the United States, FBI Headquarters refused to accede to the New York field office recommendation that a criminal investigation be opened, which might allow greater resources to be dedicated to the search for the future hijackers than would be available in an intelligence investigation. This was based on Headquarters' reluctance to utilize intelligence information to draw the connections

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between al-Mihdhar and the USS Cole bombing necessary to open a criminal investigation. FBI attorneys took the position that criminal investigators "CAN NOT" ( emphasis original) be involved and that criminal information discovered in the intelligence case would be "passed over the wall" according to proper procedures. An agent in the FBI's New York field office responded by e-mail, [page 387] "Whatever has happened to this, someday someone will die and, wall or not, the public will not understand why we were not more effective in throwing every resource we had at certain problems." Again, FBI Headquarters applied FISA "walls" to a non-FISA case.

The USA PATRIOT Act, enacted in response to September 11, provided unambiguous authority for the Attorney General and other law enforcement officials to disclose to the Director of Central Intelligence foreign intelligence collected in the course of a criminal investigation. The Act also requires that intelligence be "a significant purpose" of a FISA search rather than "the purpose." These provisions were intended to reduce, if not remove restrictions that had grown up around FISA operations. The Foreign Intelligence Surveillance Review Court, in its first opinion since being established in 1979, has affirmed that the Act permits the free flow of intelligence to prosecutors, who may direct and control FISA surveillances.

XI. Technology Gaps

Technology is critical to the Intelligence Community's efforts to collect, analyze, and disseminate information on terrorist identities, locations, capabilities, plans, and intentions. The Joint Inquiry examined a number of issues in order to assess how well-postured the Community was in regard to its use of technology as well as its understanding of the use of technology by terrorists. The NSA, which, of all the intelligence agencies, relies the most on technical collection, received most of the attention.

A. Technology Gaps at NSA

Al-Qa'ida members employed a variety of communications technologies, including modern ones such as [ .-], in the conduct of their activities. In his testimony, NSA Director Lt. Gen. Hayden lamented the fact that terrorists have access to the three-trillion-dollar-a-year communications industry. The Joint

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Inquiry attempted to examine NSA's current and planned capabilities to exploit these types of modern communications as well as the tools being used and developed to help linguists and analysts process and share the volumes of information collected. In addition, the Joint Inquiry [page 388] examined the health of the technical collection platforms from which the majority of counterterrorism intelligence information is derived.

The assessment presented below draws on testimony, interviews, and some NSA documentation.

B. [ ]

[ ].

[ ].

C. [ ].

[

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].

[Page 389]

[ ].

D. [ ].

[ ].

E. [ ].

[ ].

[ ]

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[Page 390] [ ].

F. Selection and Filtering for[ ] Communications

Much of NSA's pre-September 11 success against terrorist targets was due to the ability to [ ] based on [ ] interest rather than randomly choosing among millions of communications. With the proliferation of multimedia communications, even better selection and filtering techniques will be required.

One area of increased attention is [ ] an area in which NSA has made only limited progress. [ ]. Unfortunately, NSA's selection capabilities suffer from a critical deficiency, [ ].The solution to this deficiency is well understood and estimated to cost less than $1 million to implement. However, the Joint Inquiry learned in interviews that even though [ ] have been available for many years, and even though NSA has had recent significant funding increases, the program manager is still "scrounging" for funds to pay for this upgrade that would not be completed until 2004.
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Re: Report of the Joint Inquiry Into the Terrorist Attacks o

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Part 5 of 5

G. Analyst Tools

NSA often did not provide analysts with sufficient tools to exploit the data collected. For example, NSA in 1998 did not have the capability to [ ], NSA's Analysis and Production Chief, noted, "At that time the systems that were in place were high tailored, not integratable. The plug and play was only beginning to come into play at that point in time. So a tailored solution that you might be able to architect at home wasn't necessarily one that you could deploy across [ ] or within a CT shop." [ ] noted, however, that this capability now existed.

[Page 391]

However, field operators still do not have such tools, even though they were available at NSA Headquarters after September 11. During a visit to the [ ],

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Joint Inquiry personnel found [ ] linguists frustrated with Headquarters support for language tools. In fact, one of their primary concerns was the inability to display [ ]. They noted that they could purchase software on the local economy that can display [ ] but are prohibited from doing so because the software is not an "approved application" for their computer platform. "When they officially requested such a capability through official channels, they were told that something could be available in 18 months." They noted that some computers they still use are 1993 vintage UNIX machines that cannot even display ordinary graphical user interfaces correctly due to color graphics limitations.

H. Collection Platforms

NSA collects signals intelligence using a variety of methods or platforms. Often these platforms, which have a sizable infrastructure investment, serve a myriad of intelligence missions. In identifying these critical platforms, the Joint Inquiry examined statistics on counterterrorism- related reporting. The following chart shows the source of counterterrorism reports per technical collection platform both pre- and post-September 11:

[x]

NSA spending increases after September 11, however, are not focused on several of the most productive sources of counterterrorism information. [ ] [Page 392]

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[ ].

The evidence suggests that an effective counterterrorism effort requires [ ]. In testimony, Lt. Gen. Hayden acknowledged, [ ]. Lt. Gen. Hayden also stated that in his effort to develop capabilities against new communications technologies by the end of the 1990s, "This meant taking money away from current, still active, still producing activities. ..." Since the attacks, NSA has focused on its transformation strategy.

Lt. Gen. Hayden testified:

"Shortly after September 11th, I had a meeting of my senior leaders. I asked them the following question: Is there any part of our transformation roadmap that we should change as a result of the attacks? Unanimously, they responded, 'No, but we need to accelerate these changes.' With the money the President has requested and Congress has provided, we have done just that."


NSA's commitment to the future viability of the [ ] collection platforms remains unclear, despite their value.

XII. Technical Collection of Terrorist Communications

[Responsibility for most of the technical collection of terrorist communications falls under the purview of the National Security Agency, although the CIA and the FBI also conduct technical collection against terrorism. NSA and other agencies learned valuable information from intercepting terrorist communications and prevented several planned attacks. Indeed, numerous

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officials throughout the policy and Intelligence Community told the Joint Inquiry that Signals Intelligence (SIGINT) was a valuable source of information on al-Qa'ida. Exploitation of terrorist communications, however, was uneven at best and suffered from insufficient investment. AI-Qa'ida was only one of several high priority targets and a difficult one].

A. NSA's Organizational Structure for Collecting Terrorist Communications

Within the NSA, the Signals Directorate, which was created in February 2001 by combining the Operations and Technology Directorates, has the primary SIGINT mission. Within the Signals Directorate, the Counterterrorism Product Line has the lead for counterterrorism reporting. [ ]:

• [ ];
• [ ];
• [ ];
• [ ];
• [ ];
• [ ];

B. SIGINT and the September 11 Attacks

Prior to 11 September 2001, NSA had no specific information indicating the date, time, place, or participants in an attack on the United States. Numerous NSA personnel, including

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Lt. [Page 394] General Hayden, the Director of the NSA (DIRNSA), repeatedly related this conclusion to the Joint Inquiry.

[NSA had intercepts on September 10, 200 I that, in retrospect, appear to relate to the September 11 attacks. These intercepts were processed on September 11 (after the terrorist attacks) and reported early on September 12, 2001. Although each of the products referred to something occurring the following day, neither intercept had specifics on the attack, location, or targets. This wording was similar to other non-specific threats occasionally reported by NSA over the past several years.

In an effort to place the September 10 messages in perspective, General Hayden testified, "I should also note that [over a period of time] earlier that summer we had intercepted and reported over 30 such imminent attack messages and that since September 11 [NSA continues to report similar activities]."

In fact, following September 11, there was a flurry of similar [ ] intercepts that were not associated with any terrorist attacks:

• [ ];
• [ ];
• [ ]; and
• [ ].

[Page 395]

C. A Chronological Review of NSA Collection Efforts Against al-Qa'ida

[In the years before the September 11 attacks, NSA steadily increased its collection on al-Qa'ida. Initial Intelligence Community efforts focused on Bin Ladin himself as a terrorist financier. As the 1990s wore on, this effort expanded to collection on Bin Ladin's associates and the al-Qa'ida organization. [ ].

The following review is largely drawn from Joint Inquiry interviews. It highlights important milestones in NSA's collection against al- Qa'ida.

[ ]. Bin Ladin was viewed almost exclusively by the Intelligence Community as a terrorist financier until 1996].

[In 1996, CTC established its Bin Ladin unit as the Intelligence Community focal point for tracking Bin Ladin. [ ]. The first phase of the unit's Bin Ladin project was strategic information gathering,[ ]. It was at this point that the Intelligence Community began focusing on the Bin Ladin target as a terrorist support network in addition to being a terrorist financier].

[ ].

[Page 396]

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[Before Bin Ladin issued his February 1998 anti-American fatwa, [ ]. Following the fatwa, the Director of NSA appealed to [ ] partners, few of which were focused on counterterrorism at the time, for counterterrorism assistance. [ ].

[Following the August 1998 East Africa Embassy bombings, NSA instituted a much higher operations tempo, which never really subsided. After the bombings, at the request of FB1's New York Field Office, NSA provided all reports that appeared related to the attacks. This information was useful to the FBI].

[In the fall of 1998, NSA lost the ability to listen to Bin Ladin on his satellite phone. This loss was probably the result of, among other things, a media leak. [ ].

[ ].

In February 1999, the Department of State demarched the Taliban, [ ].

[Page 397]

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[ ].

The Millennium threat surge began in November 1999. The Millennium threat was a top priority for the entire Intelligence Community, and NSA personnel worked around the clock supporting CIA's disruption campaign. During this time, Jordanian officials arrested terrorists linked to al-Qa'ida. [ ].

[ ].

Several other advances occurred throughout 2000. [ ].

[Page 398]

Following the USS Cole bombing in October 2000, NSA consolidated some of its counterterrorism efforts [

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].

[By the winter of 2000, NSA noted a general rise in threat activity. The Intelligence Community assessed the threat to be mostly oriented abroad. In spring 2001, NSA noted another significant rise in threat activity. Again, the Intelligence Community assessed the threat to be directed abroad].

[Throughout June and July 2001, another rise in threat activity was identified. NSA analysts noted vague communications traffic indicating that something was afoot. Intelligence Community speculation centered on whether the likely target was abroad. The U.S. military was sufficiently concerned that an attack would occur on the Arabian Peninsula that "ThreatCon Delta" was declared and all ships in the area were sent to sea].

[Military customers asked NSA/CT analysts if the threat were real. NSA counterterrorism analysts reviewed the evidence and were confident that it was. [ ].

[In the spring, the Intelligence Community reported indications that an attack may have been postponed. The Joint Inquiry was told that this led the Intelligence Community to believe that a real terrorist attack had been averted].

D. Technical Collection Problems and Limits at NSA

Technical collection was limited. This was due to both the nature of the target and missteps by the NSA and other U.S. government elements.

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a. Difficulties of Gaining Actionable Intelligence on al-Qa'ida

[Several senior NSA officials, including the Deputy Director of NSA and Chief of the counterterrorism organization contended in interviews and testimony that information on terrorist plans and intentions was often not available [ ]. Even when information was intercepted, the analyst often must interpret arcane, circumspect discussions, put them into context, and identify linkages to other known targets or activities. NSA's Director stated: ". ...we do not anticipate being able to provide detailed threat information from SIGINT in most cases." Indeed, SIGINT did not provide significant intelligence to prevent other major terrorist attacks against U.S. interests such as Khobar Towers, the East Africa U.S. Embassies, and USS Cole].

[However, these arguments are somewhat belied by evidence uncovered during the Joint Inquiry that identified several instances of communications providing some specifics in terms of a timeframe and general location for terrorist activity. In addition, the FB I acquired toll records that five or six hijackers communicated extensively abroad after they arrived in the United States. The Intelligence Community had no information prior to September 11, 2001 regarding these communications, and, as a result, does not know what clues they may have contained].

[ ] [Page 400] [ ]. The Director of NSA, testifying about the targeting challenges facing NSA, said "cracking into these targets is hard - very hard - and SIGINT operations require considerable patience - sometimes over years - before they mature."

b. Difficulties in Adjusting to Terrorist Targets

The communications sophistication of stateless terrorists in general and al-Qa'ida in particular clearly surprised NSA officials. The rise of al-Qa'ida seemingly paralleled in some respects what NSA 's Director referred to as "the telecommunications and information revolution" of the past ten years. He noted that al-Qaida operatives are skilled users of the global telecommunications infrastructure, "al-Qa'ida is in many respects different from NSA's typical SIGINT targets of the past 50 years."

In spring 2001, NSA began to change direction: rather than analyzing what was collected, NSA would dissect its targets' communications practices to determine what to collect. This is commonly referred to at NSA as hunting rather than gathering. This procedure was in its infancy when the September 11 terrorist attacks occurred.

c. Problems Keeping Pace with [ ] Advances before September 11

[ ]. The Director of NSA did acknowledge NSA' s deficiencies in dealing with some forms of modern communications, but was also quick to credit his organization for working on the building blocks before September 11, so that [Page 401] fielding additional capabilities after September 11 was expedited].

NSA's Director apparently felt handcuffed in his effort to move forward in this area, citing his inability to "churn" (redirect) some $200 million into "new age signals ...because we were going to erode our coverage of [other intelligence issues] as part of this effort." Indeed, General

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Hayden told the Joint Inquiry that he was severely criticized on several occasions for abandoning so-called legacy communication paths in favor of developing robust new capabilities.

[There is some apparent inconsistency concerning NSA's concentration. On at least one occasion, the Director of NSA asserted that it was not so much NSA's inability to collect some modern communications, but other factors. The bulk of the information available to the Joint Inquiry, however, suggests NSA was behind the curve in this area and only began to catch up after September 11, 2001].

E. Insufficient Resources for Counterterrorism at NSA

Although NSA has had difficulty in generating consistent, accurate personnel numbers for the Joint Inquiry, it appears from interviews and the limited information provided that personnel employed in the counterterrorism organization were largely static over several years, despite repeated efforts by local managers to increase the numbers of linguists and analysts. General Hayden testified that in hindsight he would have liked to have doubled hjs resources against al-Qa'ida.

NSA acknowledged it had insufficient numbers of linguists and analysts on the counterterrorism target. This acknowledgment seems to have come from leadership in retrospect, while those closer to the counterterrorism problem stated to the Joint Inquiry they had been requesting personnel increases for years, mostly to little or no avail.

[Page 402]

Declining overall resources made it difficult to dramatically expand counterterrorism coverage. As discussed in more detail in a separate chapter, for much of the 1990s NSA's budget and manpower were steadily reduced to a point that all collection efforts were impeded. Cuts were "salami-sliced" across the agency rather than specifically targeted, a tactic employed by NSA for many years to cope with declines while still trying to satisfy an increasing number of intelligence requirements, and competing priorities ( especially force protection requirements) that drained scarce resources, such as Arabic linguists. Funds for [ ] collection, historically two of NSA's most lucrative reporting sources, were essentially put in a maintenance

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mode, with investment focused on other collection sources that NSA felt needed to be developed to have a more balanced SIGINT collection system.

There was little significant, sustained reaction to the DCI's declaration of war on al-Qa'ida in 1998. Indeed, L TG Hayden (who became Director of NSA in 1999) noted that by 1998, NSA was already at a heightened counterterrorism posture and thus no additional wholesale shifts in resources were made at that time. L TG Minihan, the Director of NSA at the time of the DCI's declaration, told the Joint Inquiry that he felt the DCI was speaking for the CIA only. In his view, the DCI generally left Intelligence Community matters to the head of the Community Management Staff.

[Numerous individuals noted that counterterrorism was but one of several seemingly equally high priority targets levied on NSA prior to September 11. Although the Director of the Signals Directorate stated that in addition to al-Qa'ida, [ ] was the only other Tier 0 (highest priority) target in the 1998-2001 timeframe, there did not seem to be an objective method for resource assignment within NSA, nor guidance from the DCI. The Director of NSA in his testimony referred to the PDD-35 requirements system as "cumbersome." The requirements system in place on the eve of September 11 consisted of some 1,500 standing requirements calling for some 200,000 detailed pieces of information - ad hoc requirements that were received telephonically or via e-mail, and requests for additional information. In response, NSA juggled resources to cope with competing requirements but did not make dramatic cuts in other priorities to dramatically expand counterterrorism coverage].

[Page 403]

The NSA Director also cautioned in his testimony, "If these hearings were about the war that had broken out in Korea or the crisis in the Taiwan Straits that had taken us by surprise or if we had been surprised by a conflict in South Asia or if we had lost an aircraft over Iraq or if American forces had suffered casualties in Bosnia or Kosovo, in any of these cases I would be here telling you that I had not put enough analysts or linguists against the problem. We needed more analysts and linguists across the agency, period."

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F. Technical Collection at CIA

Most of the technical collection operations at the CIA have a human access element, and the primary offices with responsibility are in the Directorate of Operations. The Counterterrorist Center has a Technical Operations Branch that is responsible for orchestrating special technical collection operations for terrorist targets. Some of these operations are conducted in concert with NSA, [ ]. [ ]. [Despite this [ ] effort, a senior CIA official testified that in hindsight he would have liked to have had more [ ].

G. NSA/CIA Disputes Over [ ] Collection

[NSA and CIA failed to agree on an approach to collect [.], and both agencies independently developed a capability [ ]. After considerable discussion with NSA and CIA personnel, the Joint Inquiry [page 404] determined that CIA wished to have [ ] as soon as possible [ ], and NSA said it could not deliver in the requested timeframe. Accordingly, CIA developed its own capability while NSA continued with its program, which ultimately was delivered some 15 months early. In the end, peace was made and over time, NSA and CIA began to benefit from each other's capabilities].

Especially during periods of budgetary shortfalls, the competitive example just cited appears particularly wasteful. To avoid similar disputes, NSA and CIA have created the Senior Partnership Advisory Group (SPAG).

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H. Technical Collection at FBI

The FBI performs considerable technical collection within the United States to support its own intelligence and criminal investigations. It also supports the collection efforts of Intelligence Community agencies, [ ]. These activities are conducted pursuant to the authority of the Foreign Intelligence Surveillance Act of 1978. [ ].

FBI was conducting relatively few technical collection operations against al-Qa'ida before September 11. The intelligence produced was of relatively limited value because the targets did not appear to be involved in significant activity.

FBI officials indicated that after September 11 a joint program had begun with NSA [ ]. FBI is responsible for collecting the information. NSA receives the information and is responsible for reporting to the Intelligence Community and [page 405] intelligence customers. [ ]. FBI personnel maintain that collaboration [ ] can still be improved.

XIII. HUMINT Collection

Three agencies in the Intelligence Community have primary responsibility for HUMINT (intelligence from human sources) collection: the CIA, the FBI, and the DIA. Before September 11, none of these agencies had collected any information through HUMINT sources warning of the September 11 attacks on the Pentagon and the World Trade Center.

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[The agencies' attempts to use human penetrations to gather intelligence on al-Qa'ida steadily grew throughout the 1990s, until by the end of the decade it was a top priority. The CIA met with the most success through its foreign liaison relationships and with volunteers. It made only limited progress with unilateral attempts to place human assets in al-Qa'ida's leadership. The DIA's Defense Humint Services (DHS) had some success against the Taliban, but little against al- Qa'ida. The FBI collected valuable information on Islamic radical activity in the United States, but the Bureau's focus was often overseas. In addition, the FBI often failed to coordinate its human collection].

The Joint Inquiry collected information about the agencies' pursuit of HUMINT through interviews and reviews of documents. The Joint Inquiry was frequently unable to catalog or audit the HUMINT sources from the information delivered by CIA because the documents were heavily redacted for source protection. This did decrease the Joint Inquiry's ability to judge the breadth and depth of the HUMINT program at CIA.

A. CIA Human Intelligence Collection

[The CIA has tried to collect on Bin Ladin and al-Qa'ida since the mid-1990s. Collecting human intelligence on al-Qa'ida became an increasingly important priority at the CIA, and in 1996, the Counterterrorist Center (CTC) set up a special Bin Ladin unit to increase its focus on Bin Ladin. The CIA used the three traditional mechanisms for developing HUMINT or field intelligence: unilateral sources, volunteers, and liaison relationships].

The CIA made the penetration of al-Qa'ida a top priority. The DCI characterized the counterterrorism effort against Bin Ladin and his organization to the Committees on June 18, 2002 in this way:

We understood that our first priority was to try and stop the next attack that was going to occur and operate against these people around the world, and then penetrate a sanctuary through whatever means we could, to build the [capabilities] that would allow us to mount these kinds of operations. ...As we race through [a] period of threat when we're disrupting specific attacks against embassies and overseas facilities and thousands of people would be dead, except for what we did, I don't remember anybody saying you guys are too timid, you're not working it hard enough or you haven't expended a level of effort.


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[To improve collection on, and efforts to disrupt, al-Qa'ida, a special unit focused on Bin Ladin was created in early 1996. The Bin Ladin unit initially had fewer than 20 people, and included operations officers, analysts who acted as targeteers, and desk officers who directed field operations. At the start, it did not have any case officers of its own deployed to the field. To conduct operations overseas for intelligence collection or disruption, the unit had to work through the Directorate of Operations (DO) area divisions and request the use of their operations officers to pursue al-Qa'ida related leads. With the passage of time and the increased priority of al-Qa'ida, more people were added to the Bin Ladin unit and more case officers were assigned to the field either permanently or temporarily. The area divisions also increased their case officers' efforts against the target].

However, Joint Inquiry interviews indicate that even into 2001, the Bin Ladin unit knew it needed more people -particularly experienced Headquarters desk officers and targeters -to effectively meet the HUMINT challenge. In early Spring 2001 briefing to the DCI, CTC [page 407] requested hiring a small group of contractors not involved in day-to-day crises to digest vast quantities of information and develop targeting strategies. The briefing emphasized that the unit needed people, not money.

The penetration of al-Qa ' ida by an Intelligence Community human asset is an exceptionally difficult task. Intelligence Community officials in several agencies told the Joint Inquiry that members ofUsama Bin Ladin's inner circle have close bonds established by kinship, wartime experience, and long-term association. Information about major terrorist plots was not widely shared within al-Qa'ida, and many of Bin Ladin's closest associates lived in war-torn Afghanistan. The United States had no official presence in that country and did not formally recognize the Taliban regime, which viewed foreigners with suspicion. Pakistan is the principal access point to southern Afghanistan, where al-Qa'ida was particularly active, but U.S.-Pakistani relations were strained by Pakistani nuclear tests in 1998 and a military coup in 1999. This was an exceedingly difficult operational environment in which to conduct clandestine operations.

[Nevertheless, CIA officials recognized the imperative of penetrating al-Qa'ida, particularly at the leadership level. A CTC presentation made to the CIA senior leadership on December 2, 1999 noted:

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• Without penetrations of [the] UBL organization ...[ ].
• While we need to disrupt operations ... we need to also recruit sources inside UBL's organization.
• Realize that recruiting terrorist sources is difficult ... but we must make an attempt].

[On the next day, the CTC briefed the National Security Council Small Group about the CIA's lack of sources and the importance of recruitment:

We will continue with disruptions of operations and renditions ... but with an increased emphasis on recruiting sources; at this time, we have no penetrations inside UBL's leadership].


[Page 408]

[Because this target was such a high priority, the CIA tried many unilateral avenues to obtain access to Bin Ladin and his inner circle. Interviews of CIA officials and documents provided to the Joint Inquiry indicate the CIA tried to [ ] According to documents reviewed by the Joint Inquiry Staff, [ ]: "[ Despite these creative attempts, former CTC officers told the Joint Inquiry that before September 11 the CIA had no penetrations of al-Qa'ida's leadership, and the Agency never got actionable intelligence [ ].

In interviews with current and former CTC officers, the Joint Inquiry learned that [

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].

The CIA frequently draws on an active set of volunteer sources, [ ], to gain intelligence. [ ].

[Page 409]

[Volunteers needed particular scrutiny, as some of these individuals were suspected of being sent in from foreign intelligence services as counterintelligence assets, or they might have been al-Qa'ida provocations. [ ].

[ ].

Critical to the successful collection of intelligence and to the disruption of terrorist activities were the relationships forged with foreign liaison services. (See Section II). Because of the scarce personnel resources initially assigned to this target, and because of the intense pressure to capture Bin Ladin himself, CTC chose to have liaison services develop sources wherever possible to support the U .S. mission. In addition, as noted in section II, liaison services had

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additional capabilities that made them particularly effective against the al-Qa'ida target. The DCI, the senior leadership of the CTC, and the leadership of the Directorate of Operations were actively engaged in building and maintaining these liaison relationships.

Developing relationships with liaison services paid off handsomely when there was some actionable intelligence about a terrorist or a cell. For example, in July 2001, a Bin Ladin operative was arrested in the [ ]. Because of this arrest, a plot to bomb an American Embassy in Europe was thwarted.

[Page 410]

[The liaison relationship worked extremely well with the [-], as well as with other services in the [ ]. Liaison sources often provided valuable information about the al-Qa'ida network, but the CIA could not rely on them to provide access to Bin Ladin's leadership. Moreover, in other parts of the world, abdicating collection to foreign partners meant the CIA obtained precious little information. According to one U.S. Government official, if liaison services did not want to help, for example in certain Western countries, there was little that could be done, by CIA].

B. DIA Human Intelligence Collection

[DIA's Defense HUMINT Service also plays a role in clandestine collection, though on a much smaller scale than CIA. According to General Dayton, the Director of DHS, after the Embassy bombings DHS "got excited" about Bin Ladin and al Qa'ida. They searched their old agent files and reestablished contact with [ ] sources that could help them with terrorist targets. [ ] former highly placed agents were reactivated. Prior to September 11, at anyone time, DHS had [ ] active. Based on those sources they produced several hundred intelligence reports from fall 1998 to September 2001.

Most of the DHS sources were focused on [ ] and had little direct reporting capability against [ ]. DHS characterized its [ ] sources as well placed and extremely useful in the post-September 11 air campaign targeting effort. [

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].

C. FBI Human Intelligence Collection

The FBI attempted to develop specific intelligence that could be acted upon before September 11 by penetrating terrorist organizations operating in the United States. Before September 11, the FBI had 70 full field investigations of individuals with al-Qa'idaties. [Page 411] However, Bureau and Department of Justice policy and practice may have hampered the FBI's coverage of the radical fundamentalist community in this country. Much of the FBI's effort against al-Qa'ida was actually expended overseas, with the investigations of the terrorist attacks against the US Embassies in Africa in 1998 and the USS Cole in 2000.

Recruiting sources in fundamentalist communities within the United States is difficult for many of the reasons noted above with regard to the penetration of al-Qa'ida in general. However, even those FBI agents who were skilled at developing such sources faced a number of difficulties that may have hampered the Bureau's ability to gather intelligence on terrorist activities in the United States. According to several agents, for example, FBI Headquarters and field managers were often unwilling to approve potentially controversial activity involving human sources that could provide counterterrorism intelligence.

The 1996 Antiterrorism and Effective Death Penalty Act, which specifically outlawed providing material support to terrorism, posed a particular problem. If all FBI source was involved in illegal funding or in terrorist training, the agent responsible for the source had to obtain approval from Headquarters and the Department of Justice to allow the source to engage in the illegal activity. This reportedly was a difficult process that sometimes took as long as six months. Because terrorist sources frequently engaged in activity that violated the 1996 Act, the cumbersome approval process negatively affected the Bureau's ability to operate more sources successfully.

Sending sources recruited in the United States overseas proved particularly difficult. Some FBI agents also saw the requirement that the Director of Central Intelligence approve such

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operations as a problem, claiming that the CIA took advantage of this requirement to prevent FBI sources from operating overseas. Another FBI agent stated that FBI Headquarters management did not readily approve overseas travel for sources because of its belief that the Bureau should focus on activity within the United States. When management did approve such operations, it often declined to allow the responsible agents to accompany the sources while traveling overseas, a decision some agents believe significantly diminished the quality of the operations.

[Page 412]

The Joint Inquiry was told by several officials that the FBI was not using its network of counterterrorism sources in the most effective and coordinated manner. The Bureau focused source reporting on cases and subjects within specific field offices and did not adequately use sources to support a national counterterrorism intelligence program. In 1999, the FBI received reporting that a terrorist organization was planning to send students to the United States for aviation training. In response, an operational unit at FBI Headquarters instructed twenty-four field offices to "task sources" for information. However, it appears that no FBI sources were asked about the matter. The problems experienced in Phoenix and Minneapolis -both of which are discussed in separate sections -further suggest that the FBI did not effectively task its sources in the United States to follow up on suspicious activity.

[This problem was painfully manifest in August 2001,when the FBI was made aware by CIA that terrorist suspects Nawaf al-Hazmi and Khalid al-Mihdhar were in the United States. Neither the FBI field offices that were involved in the search nor FBI Headquarters thought to ask FBI field offices to ask their sources whether they were aware of the whereabouts of the two individuals, who later took part in the September 11 attacks. A San Diego FBI field office agent who handled such sources, including the source who had numerous contacts with Nawafal-Hazmi and Khalid al-Mihdhar, insisted to the Joint Inquiry that he would have been able to find them through his sources].

Finally, that same agent testified that he had "never" discussed any FBI interest in Bin Ladin or al-Qa'ida with that source prior to September 11, "because that was not an issue in terms of my assignments. I was interested in Hamas, Hizbollah, Popular Front for the Liberation of Palestine, the Democratic Front for the Liberation of Palestine, the whole different range." He stated that "we knew [al- Qa'ida] was an important person or important organization. But we

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didn't have any presence. We didn't have any cases and we didn't have any source information that indicated that these guys were here in San Diego at that time."

[Page 413]

XIV. Summary of Joint Inquiry Review of Anthrax Attacks

In October 2001, the Congress, the United States Postal Service (USPS), and elements of the domestic infrastructure were the targets of anthrax attacks that eventually killed five Americans. The Joint Inquiry requested that the General Accounting Office review those attacks, focusing on the difficulty of producing and spreading anthrax, mail as a delivery system, the status of USPS efforts to detect anthrax, the federal investigation into the attacks, and how the government is preparing for other incidents.

When the Joint Inquiry report was filed, the GAO investigation had been substantially completed, with an initial finding that no consensus exists among experts regarding the ease with which terrorists or a disgruntled scientist could effectively produce and disseminate anthrax on U.S. soil. According to the GAO, technical experts believe that it would be very difficult to overcome technical and operational challenges to produce and deliver biological warfare agents sufficient to cause mass casualties.

According to the experts the GAO interviewed, delivery of anthrax by mail is not as efficient a method of producing mass casualties as military technologies. However, in the public's mind and in terms of economic damage, anthrax powder in the mail represents a potentially significant problem. The USPS effort to defend against biological agents illustrates a key aspect of homeland defense: the distinction between reactive and proactive operational environments. Whereas the nation's posture had been to prevent attacks against military facilities, the anthrax attacks targeted civilian facilities that are unprepared to react.

According to the GAO, the FBI is aware of numerous anthrax incidents throughout the United States, which were random in nature and determined to be hoaxes" Because this was the first time the FBI responded to an actual attack, however, there was some initial confusion about the investigative roles and responsibilities of various agencies. The Bureau has recognized the

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need to involve subject-matter experts and, as a result, its investigative teams include scientists, criminal investigators, hazardous-material experts, investigators from other federal agencies, and federal laboratories.

[Page 414]

As a result of the anthrax attacks, the FBI and other investigative agencies have increased attention on chemical and biological threats. These agencies have reached agreements delineating roles and responsibilities, increased liaison with public health officials, developed a Center for Disease Control and FBI handbook for conducting investigations, and identified state and local officials who need security clearances for access to classified information.

To date, no connection has been established between the anthrax attacks and the terrorist attacks of September 11.

A copy of the GAO report can be found in the Appendix to this volume.

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Re: Report of the Joint Inquiry Into the Terrorist Attacks o

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Part 1 of 11

[Page 415]

PART FOUR - FINDING, DISCUSSION AND NARRATIVE REGARDING CERTAIN SENSITIVE NATIONAL SECURITY MATTERS

20. Finding: [Through its investigation, the Joint Inquiry developed information suggesting specific sources of foreign support for some of the September 11 hijackers while they were in the United States. The Joint Inquiry's review confirmed that the Intelligence Community also has information, much of which has yet to be independently verified, concerning these potential sources of support. In their testimony, neither CIA nor FBI officials were able to address definitively the extent of such support for the hijackers globally or within the United States or the extent to which such support, if it exists, is knowing or inadvertent in nature. Only recently, and at least in part due to the Joint Inquiry's focus on this issue, did the FBI and CIA strengthen their efforts to address these issues. In the view of the Joint Inquiry, this gap in U.S. intelligence coverage is unacceptable, given the magnitude and immediacy of the potential risk to U.S. national security. The Intelligence Community needs to address this area of concern as aggressively and as quickly as possible].

Discussion: [The Joint Inquiry reviewed information in FBI and CIA documents suggesting specific potential sources of foreign support for the September 11 hijackers. While the Joint Inquiry uncovered this material during the course of its review of FBI and CIA documents, it did not attempt to investigate and assess the accuracy and significance of this information independently, recognizing that such a task would be beyond the scope of the Joint [page 416] Inquiry. Instead, the Joint Inquiry referred a detailed compilation of information it had uncovered in documents and interviews to the FBI and CIA for further investigation by the Intelligence Community and, if appropriate, law enforcement agencies. A detailed summary of the available information pertaining to this issue is included in the classified version of the Joint Inquiry final report].

[It should be clear that this Joint Inquiry has made no final determinations as to the reliability or sufficiency of the information regarding these issues that was found contained in FBI and CIA documents. It was not the task of this Joint Inquiry to conduct the kind of extensive investigation that would be required to determine the true significance of such alleged support to the hijackers. On the one hand, it is possible that these kinds of connections could suggest, as indicated in a CIA memorandum, "incontrovertible evidence that there is support for these terrorists [ ]." On the other hand, it is also possible that further

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investigation of these allegations could reveal legitimate, and innocent, explanations for these associations].

[Given the serious national security implications of this information, however, the leadership of the Joint Inquiry is referring the Joint Inquiry Staff's compilation of relevant information to both the FBI and the CIA for investigative review and appropriate investigative and intelligence action].

[Page 416][ ].

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In the October 10, 2002 closed hearing, FBI Director Mueller acknowledged that he became aware of some of the facts regarding this issue only as a result of the investigative work of the Joint Inquiry Staff:

I'm saying the sequence of events here, I think the staff probed and, as a result of the probing, some facts came to light here and to me, frankly, that had not come to light before, and perhaps would not have come to light had the staff not probed. That's what I'm telling you. So I'm agreeing with you that the staff probing brought out facts that may not have come to this Committee.

Senator DeWine: But what you're also saying, though, is that that probing then brought facts to your attention.

Director Mueller: Yes.


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Re: Report of the Joint Inquiry Into the Terrorist Attacks o

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GLOSSARY OF TERMS AND KEY NAMES

[Page 444]

GLOSSARY OF TERMS AND ACRONYMS

ACS: FBI Automated Case System

Actionable Intelligence: Intelligence information that is directly useful to customers for immediate exploitation without having to go through the full intelligence production process; it may address strategic or tactical needs, close support of US negotiating teams, or action elements dealing with such matters as international terrorism or narcotics.

AIG: Assessments and Information Group -Counterterrorist Center's analytic arm pre-September 11. After September 11th this office became the Office of Terrorism Analysis.

Agent (I) A person who engages in clandestine intelligence activity under the direction of an intelligence organization but who is not an office, employee, or co-opted worker of that organization. (2) An individual who acts under the direction of an intelligence agency or security service to obtain, or assist in obtaining, information for intelligence or counterintelligence purposes. (3) One who is authorized or instructed to obtain or to assist in obtaining information for intelligence or counterintelligence purposes.

Analysis A process in the production step of the intelligence cycle in which intelligence information is subjected to systematic examination in order to identify significant facts and derive conclusions therefrom.

Asset: (I) Any resource -a person, group, relationship, instrument installation, supply -at the disposition of an intelligence agency for use in an operational or support role. (2) A person who contributes to a clandestine mission but is not a fully controlled agent.

[ ]

BW: Biological Warfare

CBRN: Chemical, Biological, Radiological, Nuclear

CDC: FBI Chief Division Counsel (Chief Field Office Counsel)

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CIA: Central Intelligence Agency. An Intelligence Community agency established under the National Security Council for the purpose of coordinating the intelligence activities of several US departments and agencies in the interest of national security. The CIA collects, produces, and disseminates foreign intelligence and counterintelligence; conducts counterintelligence activities abroad; collects, produces, and disseminates intelligence on foreign aspects of narcotics production and trafficking; conducts special activities approved by the President; and conducts research, development, and procurement of technical systems and devices.

CIR: Central Intelligence Report - A specific form of communicating intelligence from the CIA to other agencies.

Clandestine Operation: A preplanned secret intelligence collection activity or covert political, economic, propaganda, or paramilitary action conducted so as to assure the secrecy of the operation; encompasses both clandestine collection and covert action.

Classification: The determination that official information requires, in the interest of national security, a specific degree of protection against unauthorized disclosure, coupled with a designation signifying that such a determination has been made; the designation is normally termed a security classification and includes Confidential, Secret, and Top Secret.

Compartmentation: (1) Formal system of restricted access to intelligence activities, such systems established by and/or managed under the cognizance of the DCI to protect the sensitive aspects of sources, methods, and analytical procedures of foreign intelligence information, limited to individuals with a specific need for such information and who are therefore given special security clearances and indoctrination in order to have access to it. (2) Establishment and management of an intelligence organization so that information about the personnel, organization, or activities of one component is made available to any other component or individual only to the extent required for the performance of assigned duties.

Counterintelligence: Information gathered and activities conducted to protect against espionage, other intelligence activities, sabotage, or assassinations conducted for or on behalf of foreign powers, organizations, persons, or terrorist activities, but not including personnel, physical, document, or communications security programs.

Counterterrorism: Offensive measures taken to prevent, deter, and respond to a

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terrorist act or the documented threat of such an act.

Covert Action: (1) An operation designed to influence governments, events, organizations, or persons in support of foreign policy in a manner that is not necessarily attributable to the sponsoring power; it may [Page 446] include political, economic, propaganda, or paramilitary activities. (2) Operations that are so planned and executed as to conceal the identity of, or permit plausible deniability by, the sponsor.

Covert Operation: (Preferred term -Clandestine operation). A covert operation encompassing covert action and clandestine collection.

[ ]

CSG: Counterterrorism Security Group (also known as the Coordinating Subgroup)

CTAU: Counterterrorist Action Unit

CTC: DCI's Counterterrorist Center at the CIA

[ ]

CTD: FBI Counterterrorism Division

DCI: Director of Central Intelligence- (1) Primary advisor to the President and National Security Council on national foreign intelligence, appointed by the President with the consent of the Senate. (2) Head of the Intelligence Community and responsible for the development and execution of the National Foreign Intelligence Program. (3) Director of the Central Intelligence Agency.

DHS: DIA's Defense Human Intelligence (HUMINT) Service

DHS: Department of Homeland Security

DIA: The Defense Intelligence Agency is an agency of the Intelligence Community responsible for satisfying the foreign military and military-related intelligence requirements of the Secretary of Defense, the Joint Chiefs of Staff, the Unified and Specified Commands, other Defense components, and, as appropriate, non- defense agencies. It is a provider of military intelligence for national foreign intelligence and counterintelligence products and

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is responsible for coordinating the intelligence activities of the military services and managing the Defense Attache System.

Dissemination: The timely distribution of intelligence products (in oral, written, or [page 447] graphic form) to departmental and agency intelligence consumers in a suitable form.

DNI: Director of National Intelligence

Domestic Collection: The acquisition of foreign intelligence information within the United States from governmental or nongovernmental organizations or individuals who are witting sources and choose to cooperate by sharing such information.

[ ]

EC: FBI Electronic Communication

Estimate: (1) An analysis of a foreign situation, development, or trend that identifies its major elements, interprets the significance, and appraises the future possibilities and the prospective results of the various actions that might be taken. (2) An appraisal of the capabilities, vulnerabilities, and potential courses of action of a foreign nation or combination of nations in consequence of a specific national plan, policy, decision, or contemplated course of action. (3) An analysis of an actual or contemplated clandestine operation in relation to the situation in which it is or would be conducted in order to identify and appraise such factors as available and needed assets, and potential obstacles, accomplishments, and consequences.

FAA: Federal Aviation Administration

Fatwa: Religious decree

FBI: Federal Bureau of Investigation-The FBI is within the Department of Justice. It is the principal law enforcement investigative arm of the US government and the lead agency responsible for counterterrorism in the United States.

FinCEN: Financial Crimes Enforcement Network of the Treasury Department

Finding: A determination made by the President stating that a particular intelligence operation is important to the national security of the

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United States, in compliance with Section 503 (50 U.S.C. 413b) of the National Security Act, as amended.

Finished Intelligence: (1) The product resulting from the collection, processing, integration, analysis, evaluation, and interpretation of available information concerning foreign countries or areas. (2) The final result of the production step of the intelligence cycle; the intelligence product.

FISA Court: Court that reviews, for sufficiency, applications for orders issued under the Foreign Intelligence Surveillance Act.

FISA Order: Order authorized under the Foreign Intelligence Surveillance Act to conduct electronic or physical searches within the US for foreign intelligence purposes.

Foreign intelligence service: An organization of a foreign government that engages in intelligence activities.

Foreign Liaison: Efforts to work with foreign government intelligence services, including law enforcement agencies that gather or carry out intelligence-related activities. Examples of foreign liaison include sharing information, joint collection efforts, and the arrest of suspected terrorists by foreign governments using US-supplied information. Every major US intelligence agency has some forn of liaison relationship with foreign governments.

[ ]

[ ].

HPSCI: House Permanent Select Committee on Intelligence -- A permanent select committee of the House of Representatives established by House Rule XL VIII, whose function is to monitor and provide oversight for the Intelligence Community and intelligence-related activities of all other government organizations. The committee is also responsible for legislation pertaining to intelligence agencies and activities, including authorizing appropriations for such activities.

IC: Intelligence Community-The aggregate of the following executive branch organizations and agencies involved in intelligence activities: the Central Intelligence Agency; the National Security Agency; the Defense Intelligence agency; offices within the Department of Defense for the collection of specialized national foreign intelligence through reconnaissance programs; the Bureau of Intelligence and Research of the Department of State;

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intelligence elements of the military services, the Federal Bureau of Investigation, the Department of Treasury, and the Department [page 449] of Energy; and staff elements of the Office of the Director of Central Intelligence.1

IICT: Interagency Intelligence Committee on Terrorism

[ ]

Intelligence: (1) A body of evidence and the conclusions drawn therefrom acquired and furnished in response to the known or perceived requirements of customers; it is often derived from information that is concealed or not intended to be available for use by the acquirer. (2) A term used to refer collectively to the functions, activities, or organizations that are involved in the process of planning, gathering, and analyzing infon11ation of potential value to decision-makers and to the production of intelligence as defined above. (3) The product resulting from the collection, collation, evaluation, analysis, integration, and interpretation of all collected information.

Intelligence assessment: A category of intelligence production that encompasses most analytical studies dealing with subjects of policy significance, thorough in its treatment of subject matter -as distinct from building-block papers, research projects, and reference aids, but unlike estimative intelligence need not attempt to project future developments and their implications; usually coordinated within the producing organization, but may not be coordinated with other intelligence agencies.

Intelligence report: (1) A product of the production step of the intelligence cycle; (2) Military Usage-A specific report of information, usually on a single item, made at any level of command in tactical operations and disseminated as rapidly as possible in keeping with the timeliness of the information.

Intelligence requirement: Any subject, general or specific, upon which there is a need for the collection of intelligence information or the production of intelligence.

International terrorism: Terrorist acts that transcend national boundaries in their conduct or purpose, the nationalities of the victims, or the resolution of the incident. Such an act is usually designed to attract wide publicity

_______________

1 Pursuant to Title I, Section 105, of the Intelligence Authorization Act for Fiscal Year 2002, the United States Coast Guard has been included as an element of the Intelligence Community.

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[page 450] to focus attention on the existence, cause, or demands of the perpetrators.

IOS: FBI's Intelligence Operations Specialists -- Specialists conduct case specific (tactical) research.

IRS: FBI's Intelligence Research Specialist -- Specialists conduct long term (strategic) research.

[ ].

JITF-CT: DIA's Joint Intelligence Task Force -- Combating Terrorism

JSOCL Military's Joint Special Operations Command

JTTF: FBI's Joint Terrorism Task Force

LEGAT: FBI's Legal Attache in foreign countries

Manila (Bojinka) Plot: A Ramzi Yousef plot to blow up 12 airliners over the Pacific Ocean and to crash a plane into the CIA Headquarters (1995)

MI-5: Britain's internal security service (BSS).

[ ] [ ]

NGO: Non-Governmental Organization

NIC: National Intelligence Council, comprised of the National Intelligence Officers (NIOs), their staff, and an analytic group. The NIOs support the DCI by producing national intelligence estimates and other interagency assessments and by advising him on the intelligence needs of policymakers.

NID: National Intelligence Daily -An Intelligence Community produced digest of current intelligence drafted six times a week for senior government officials. (Replaced by the SEIB)

NIE: National Intelligence Estimate: (1) A thorough assessment of a situation in a foreign environment relevant to the formulation of foreign, economic, and national security' policy, that projects probable future courses of action and developments, and is structured to illuminate differences of view within the Intelligence Community; it is issued by the DCI with the advice of the National Foreign Intelligence Board; (2) a strategic estimate of capabilities,

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[page 451] vulnerabilities, produced at the national level as a composite of the views of the Intelligence Community.

NIMA: National Imagery and Mapping Agency, an Intelligence Community agency.

NIO: The senior staff officer of the DCI for an assigned area of functional or geographic responsibility. The NIO manages estimative and interagency intelligence production on behalf of the DCI; he is the principal point of contact between the DCI and intelligence consumers below the cabinet level and is a primary source of national-level substantive guidance to intelligence Community planners, collectors, and resource managers.

NFIP: National Foreign Intelligence Program

NRO: National Reconnaissance Office, an Intelligence Community agency.

NSA: National Security Agency, the Intelligence Community agency responsible for centralized coordination, direction, and performance of highly specialized technical functions in support of US Government activities to protect US communications and produce foreign intelligence information. It coordinates, directs, and performs all cryptologic functions for the US Government; collects, processes, and disseminates SIGINT information for DoD, national foreign intelligence, and colmterintelligence purposes; and is the national executive agent for classified communications and computer security.

NSD: National Security Directive

NSC: National Security Council

NSLU: FBI National Security Law Unit

OIPR: Office of Intelligence Policy Review, Department of Justice

OMB: Office of Management and Budget

PDB: President's Daily Brief (Prepared by CIA for President and very small number of other senior officials)

PDD: Presidential Decision Directive

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PENTTBOMB: FBI investigation of September 11 WTC & Pentagon attacks

PFIAB: President's Foreign Intelligence Advisory Board-A body consisting of senior non- government members appointed by, and reporting directly to, the President, empowered to assess the quality, quantity, and adequacy of intelligence collection, of analysis and estimates, or counterintelligence, and other intelligence activities with a view toward increasing the effectiveness of the national intelligence effort; specific duties and responsibilities are outlined in Executive Order 12331.

Phoenix EC: Electronic communication of July 2001 from the FBI's Phoenix field office to FBI Headquarters expressing concern about an increase in the number of Middle Eastern men enrolled in civil aviation training (also referred to as the Phoenix Memo).

Raw Intelligence: A colloquial term meaning collected intelligence information that has not yet been converted into finished intelligence.

RFU: FBI's Radical Fundamentalist Unit

SA: Special Agent

SAC: Special Agent in Charge

SEIB: Senior Executive Intelligence Brief (CIA intelligence summary for senior USG officials; replaced the NID, see above.)

SIGINT: Signals intelligence-Intelligence information derived from signals intercept comprising, either individually or in combination, all communications intelligence, electronic intelligence, and foreign instrument signals intelligence, however, transmitted.

SIOC: FBI's Strategic lnformation Operations Center

SOIC: Senior Officials of the Intelligence Community -- The heads of the organizations comprising the Intelligence Community or their designated representatives.

SRTD: Signals Research and Target Development, a NSA function

SSA: Supervisory Special Agent

SSCI: Senate Select Committee on Intelligence -- A select committee of the Senate established by Senate Resolution 400, 94th Congress, 2nd Session (1976), whose function is to monitor and provide oversight

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[page 453]

over the Intelligence Community and intelligence- related activities of all other government organizations; the Committee is also responsible for legislation pertaining to intelligence agencies and activities, including authorizing appropriations for such activities.

Strategic intelligence: Intelligence required for the formulation of policy and military plans at national and international levels; it differs primarily from tactical intelligence in level of use, but may also vary in scope and detail.

Tactical intelligence: Intelligence produced in support of military, intelligence, or other operations, or that relates to the specific time, date, nature, and other details of events.

Title III Order: Order issued by a court pursuant to the provisions of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, Public Law 90-351 (June 19, 1968), as amended, authorizing the interception of oral, wire, and/or electronic communication.

UAV: Unmanned Aerial Vehicle

UBLU: FBI's Usama bin Ladin Unit

USSID: United States Signals Intelligence Directive

Volunteer: Persons who, on their own initiative, make contact with a government representative and volunteer information and/or request political asylum.

WTC: World Trade Center

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[Page 454]

KEY NAMES

Mohamed Yousef

Mohamed Alqusaidi: Marwan al-Shehhi's brother

Muhammed Atif: Bin Ladin's lieutenant

[ ]

[ ]

[ ]
Usama Bin Ladin: Leader of al-Qa'ida and promoter of terrorist attacks against US

Imad Mugniyah: Hizbollah Leader

Khalid Shaykh Mohammad: Bin Ladin Lieutenant; believed to be the mastermind of the September 11th attacks (AKA Mukhtar or "the Brain")

Mohamed al-Owhali: Passenger in truck bomb that jumped out of the bomb laden vehicle before it crashed into the American embassy in Kenya

Al-Qa'ida: Terrorist organization led by Usama bin Ladin. Translates as "the Base"

Omar Abd al-Rahman: Blind Sheikh

Ahmed Ressam: Convicted terrorist who tried to cross into the United States from Canada with explosives intending to target Los Angeles International Airport in December 1999

Ramzi Yousef: Organizer of the 1993 bombing of the World Trade Center

Ayman Zawarhari: Bin Ladin lieutenant

Abu Zubaydah: Bin Ladin Lieutenant captured in March 2002

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SEPTEMBER 11, 2001 HIJACKERS

American Airlines Flight 11 hit the North Tower of the World Trade Center at 8:45 a.m.

Mohamed Atta: [Mo-Ha-mahd A-tta] Pilot

Abd AI-Aziz Al-Omari: [Abd al-A-ziz AI-OMA-ree]

Satam Al-Suqami: [Sa-TOM Ah-Suq-AMl]

Wail Al-Shehri: [Wa-EEL Ah-SHEH-ree]

Walid Al-Shehri: [Wa-LEED SHEH-ree]

United Airlines Flight 175 hit the South Tower of the World Trade Center at 9:05 a.m.

Marwan Al-Shehhi: [Mar-WAHN Ah-SHEH-hee Pilot

Ahmed Al-Ghamdi: [Ah-MED al-GAM-dee]

Hamza Al-Ghamdi: [HAM-za al-GAM-dee]

Fayez Ahmed: [FA-yez AH-med]

Mohand Al-Shehri: [MO-hahnd ah-SHEH-ree]

American Airlines Flight 77 hit the Pentagon at 9:39 a.m.

Hani Hanjour: [Ha-NEE HAN-joor] Pilot

Khalid Al-Mihdhar: [Kah-LEED al-MID-har]

Majid Moqed: [MAH-jid MOE-Ked]

Nawaf AI-Hazmi: [Now-Woff al-HAS-me ]

Salim Al-Hazmi: [Sa-LEEM al-HAS-me]

United Airlines Flight 93 crashed in Pennsylvania at 10: 10 a.m.

Ziad Jarrah: [Zee-YAHD Jara] Pilot

Ahmad Al-Nami: [AH-med Ah-Nah-mee]

Ahmad Al-Haznawi: [AH-med al-Has-NOW-wee]

Saled Al-Ghamdi: [Sah-EED al-GAM-dee]
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Re: Report of the Joint Inquiry Into the Terrorist Attacks o

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Part 1 of __

ADDITIONAL VIEWS AND APPENDICES

TABLE OF CONTENTS

Additional Views Of Members


Sen. Richard C. Shelby
Rep. Michael N. Castle
Sen. Mike De Wine
Rep. Jane Harman
Sen. John Kyl & Sen. Pat Roberts
Sen. Carl Levin
Sen. Barbara A. Mikulski
Rep. Tim Roemer

Appendices

Initial Scope Of Joint Inquiry
Supplemental Joint Inquiry Rules
Joint Inquiry Hearings
List of Hearing Witnesses
List of Persons Interviewed
Counterterrorism Organizations Within The Intelligence Community
Evolution Of The Terrorist Threat And The U.S. Response, 1983-2001
Selected Events In The Chronology Of Terrorism, 1982-2001
CIA/FBI Failures In Regard To Two September 11 Hijackers, The Phoenix Electronic
Communication, And The Moussaoui Investigation (Adapted From A Chart Presented By
Senator Carl Levin At The October 17, 2002 Joint Inquiry Hearing)
The Phoenix Electronic Communication

Moussaoui Related FBI Field Agent Notes & Field Office/Headquarters E-Mails
General Accounting Office: Analysis Of U.S. Anthrax Attacks
CTC Watchlisting Guidance -December 1999
The Joint Inquiry In Court
Access Limitations Encountered By The Joint Inquiry

ADDITIONAL VIEWS OF MEMBERS OF THE JOINT INQUIRY

On December 10, 2002, the Report of the Joint Inquiry was voted on and approved by the House Permanent Select Committee on Intelligence and the Senate Select Committee on Intelligence. The following additional views were submitted by individual members of those committees.

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 of repair. ...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. [1] 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,

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[1] 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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which "attempted to implement the principles of unity of command and unity of intelligence."2

Sixty years later, on September 11, 2001, we suffered 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 Intelligence (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 11 I have similarly hid from no 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 SSCI, 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 result 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.

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2 Warner, supra, at 1.

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I hope that the American public servants who inherit responsibility for these matters during the 108th 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 Additional Views thereto -- will help spur the kind of broad-ranging debate in Congress, within the Administration, and among the American 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 fail to make the changes necessary to ensure that they are better protected in the future.

Executive Summary

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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

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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 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 must 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 employed by the traditional collection agencies can engage in collection or analysis of those agencies' signature types of intelligence. The traditional collection agencies , expertise in "their" areas should be used to enrich the Community's pool

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of intelligence 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 JC, depriving analysts of the information access they need in order to draw the inferences 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,

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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 of Al-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 failing 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 in 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 fundamental 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 information belonged with the analysts

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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 huge volumes of information the IC brings in every day. Recent development and initiatives in comprehensive databasing 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 has 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

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changes, for instance, the legally fallacious "Wall" 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 -- deliberately 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 (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

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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 time, 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 had 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, of providing 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

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were domestic intelligence collectors deprived of their badges, guns, and arrest powers and devoted wholly to CI and CT tasks.

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 108th Congress should make it a high priority to resolve these issues, and to put the domestic components of our Intelligence Community on a footing that will enable them to meet the challenges of the 21st century.

Human Intelligence. The status quo of IC approaches to human intelligence (HUMINT) was tested against the Al-Qa'ida threat and found

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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 fundamental 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.

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

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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 faces 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

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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 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 individuals 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

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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 tailings 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 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

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the leaders who took so little action for so long, to address problems so well known. In this context, we must not be afraid publicly to name names. The U.S. Intelligence Community would have been far better prepared for September 11 but for the failure of successive agency leaders to work wholeheartedly to overcome the institutional and cultural obstacles to inter-agency cooperation and coordination that bedeviled counterterrorism efforts before the attacks: DCls George Tenet and John Deutch, FBI Director Louis Freeh, and NSA Directors Michael Hayden and Kenneth Minnihan, and 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 DCI's Problematic "War" of 1998


The Director of Central Intelligence (DCI) testified before Congress in February 2001 that he considered Usama bin Laden and AI-Qa'ida to be the most important national security

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threat faced by the United States.3 In December 1998, in fact-- in the wake of the terrorist bombings of the U.S. embassies in Dares 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 management structure.

As the Joint Inquiry Staff (JIS) has noted in its presentations to the Committees, "[d]espite 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." [5] 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 ClA 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

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3 Senate Select Committee on Intelligence, hearing into "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.")

4 JIS, written statement submitted to joint SSCI/HPSCI hearing (September 18, 2001), at 9.

5 JIS, written statement submitted to joint SSCI/HPSCI hearing (September 18, 2001), at 10.

6 The detailed figures remain classified.

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want no resources or people spared in this effort, either inside the CIA or the Community." [7] 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 internally, if needed, in a crisis." [8]

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7 JIS, written statement submitted to joint SSCI/HPSCI hearing (September 18, 2001), at 9.

8 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'ida for lack of money and personnel, [9] 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." [11] The troops fighting the DCI'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.[12] Simultaneously serving as Director of the CIA, the DCI also has essentially complete authority over that

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9 This was the conclusion presented to an internal CIA conference on September 16, 1999. Further information about this internal study, however, has not been declassified.

10 JIS, written statement submitted to joint SSCI/HPSCI hearing (September 18, 2001), at 13.

11 Cofer Black, written statement submitted to joint SSCI/HPSCI hearing (September 26, 2001), at 10.

12 See 50 U.S.C. § 403-4(b), (c), and (d).

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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 DCl 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 Community as a whole. (The DCI has also publicly supported the creation of an Undersecretary of Defense for Intelligence [USDI], 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 11 the DCI has pointed to his "declaration of war" as a token of his pre-September 11 seriousness of purpose against Al-Qa'ida, but it does not appear to have been circulated or known outside a small circle of intimates before 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. [13]

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13 See, e.g., Barton Gellman, "Broad Effort Launched After '98 Attacks," Washington Post (December 19, 2001), at Al (quoting former Assistant Secretary of State for South Asian Affairs Karl Inderfurth that "Until September 11 th, there was certainly not any groundswell of support to mount a major attack on the Taliban."); Bob Drogin, "U.S. 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 invasion of Afghanistan was "really not an option" before

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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 handicapped 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. [14] For this reason, no serious plan to reform the U.S. Intelligence Community can ignore the problem of Community management and the weaknesses of the office of the DCI as the Community's nominal head.

2. 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 Intelligence Community, but the National Security Agency (NSA), National Imagery and Mapping Agency (NIMA), National Reconnaissance Office (NRO), Defense Intelligence

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September 11).

14 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 funds and/or personnel).

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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 of 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, "[t]he 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 DCls and agency heads could devote to national
and strategic objectives." [15]

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 enormous -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

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15 Warner, supra, at 8 & 17.

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components, in fact, 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 fact that the DOD components of the Intelligence Community are also vital parts of the national intelligence system, and provide crucial intelligence products to national- evel 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 itself 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 Scow croft 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.

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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 effect, a Pentagon DCI -and one, moreover, likely to have at least as much influence over the agencies in question than the DCI himself. OOD'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 independent of 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

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16 Susan Schmidt & Thomas E. Ricks, "Pentagon Plans Shift in War on Terror; Special Operations Command's Role to Grow With Covert Approach," Washington Post (September] 8, 2002), at A I.

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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 me 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 powerful new Community-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 ofNSA and NIMA -appointed with DCI and Secretary of Defense 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

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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.

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. [17] This landmark legislation -which reformed the roles of the Chiefs 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

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17 Public Law 99-433 (October 1, 1986).

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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 AI-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 but 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, adapt, and move in unanticipated directions in the future. Otherwise the IC will face 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

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fails, responding to - future threats.

Well short of putting the entire Community under a "Secretary for Intelligence," one way to greatly augment 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 management 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

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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 must, in short, be willing to build 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 HUMINT collection opportunities, for instance, and 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. [18])

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

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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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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 USSID 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 of the 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 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." [19] In 2002, however, the CIA no longer quite fulfils that function, now existing as one of many bureaucratic fiefdoms within a sprawling -and Defense -- dominated -- Intelligence Community.

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19 Thomas F. Troy, Donovan and the CIA: A History of the Establishment of the Central Intelligence Agency (Langley, Virginia: CIA Center for the Study of Intelligence, 1981), supra, at 382 (quoting Donovan); see also id. at 408 (noting that "Congress wanted CIA...[to be] free from undue military influence as well as Department control."); 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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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 howsoever we determine that any such agency would interact with a more empowered DCI -our opportunity seriously to consider such changes is now.
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Re: Report of the Joint Inquiry Into the Terrorist Attacks o

Postby admin » Sat Mar 26, 2016 8:56 am

Part 2 of 11

II. 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 effectively. This problem is inextricably tied up with the longstanding problem of ensuring quality intelligence analysis within the Community, for without access to a broad range of information upon which to draw inferences and base conclusions, even the best individual

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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 likelihood 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 monopolizing 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 of 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

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Germany. [20] Today, similar debates continue as it becomes clear that the sort of sophisticated pattern-analysis 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 summer 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, [21] about their efforts to train pilots at U.S. flight schools, [22] about the

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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, 7939- 945 (London: Greenhill, 2000), 89, 98-100, 189-90, & 279; David Kohnen, "F-21 and F-211 : 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.

21 For an account of information available to the Intelligence Community about terrorists' interest in using aircraft as weapons, see JIS, written statement presented to SSCI/HPSCI joint hearing (September 18, 2002), at 26-28.

22 For an account of information available about terrorists' interest in acquiring aviation training at U.S. flight schools, see JIS, written statement presented to SSCI/HPSCI joint hearing (September 24, 2002), at 3.

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presence in the U.S. of Al-Qa'ida terrorists Khalid al-Mihdhar 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 failed 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." [23] 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

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 SSCVHPSCI hearings, the so-called TIPOFF system provides the basic "watchlist" function by which consular and INS

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23 JIS, written statement presented to SSCI/HPSCI joint hearing (September 18,2002), at 10.

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officials check visa applicants or U.S. arrivals against lists of suspected terrorists and other undesirables. With respect to suspected terrorists, the TIPOFF database is populated principally through the submission of names 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 information about suspected terrorists with State and INS. Based upon clear internal guidance on December 11, 1999, the CIA was required to pass to the TIPOFF program the names of all persons it suspected of being terrorists [24] Before September 11, however, the Agency did not consistently do this. Instead, it often provided the names of suspected terrorists to TIPOFF if the CIA already had information indicating that the terrorist planned to travel to the United States. [25] 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 of names from the TIPOFF database -- names of persons 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

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24 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.

25 CIA officials have informed SSCI staff that this occurred because State Department officials felt overly burdened with having to process all the names. Their account, however, is not consistent with the State Department complaints about CIA practice recorded by the JIS. See, e.g., JIS written statement presented to SSCI/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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Understanding (MOU) in January 2001 with the FBI, NSA, and State Department on watchlist 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 TIPOFF program in the months leading up to the September 11 attacks. [26]

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. [27] Indeed, one CIA official from the Counterterrorism Center's special cell devoted to tracking Al-Qa'ida told the JIS that he didn't feel that his organization needed to worry about whether anyone watchlisted Al-Qa'ida terrorists. [28] The CIA, therefore, apparently neither trained nor encouraged its employees to follow its own rules on watchlisting -- embodied in the December 1999 guidance -- and they clearly did not do so. [29]

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26 JIS, written statement presented to SSCI/HPSCI joint hearing (September 20,2002), at 15.

27 JIS, written statement presented to SSCl/HPSC[ joint hearing (September 20, 2002), at 7-8.

28 JIS, written statement presented to SSCI/HPSCI joint hearing (September 20, 2002), at 8.

29 Strangely, to judge from the testimony given in Joint Inquiry hearings by JIS representatives, the JIS does not seem ever to have discovered 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.

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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, "[w]e were told that there was, at the time, no formal system in place at the CTC for watchlisting suspected terrorists."30 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.

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30 JIS, written statement presented to SSCI/HPSCI joint hearing (September 20, 2002), at 7.

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The magnitude of the CIA's watchlisting failures and the potential impact of 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 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 I, 761 during the three months before September 11 to 4,251 in the three months afterwards. [31] 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 Nawafal- Hazmi. Their story is ably recounted by in the body of the 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 information linking al-Hazmi to AI- a'ida. Neither the CIA nor NSA, however, saw fit to

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31 JIS, written statement presented to SSCI/HPSCI joint hearing (September 20,2002), at 15.

32 JIS, written statement presented to SSCI/HPSCI joint hearing (September 20,2002), at 5.

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provide their names to the TIPOFF database. [33] There is apparently some confusion over whether the CIA told the FBI anything about al-Mihdhar 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 mllltiple-entry visa that would allow him to enter the United States. [34]

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33 JIS, written statement presented to SSCl/HPSCI joint hearing (Sep1ember 20, 2002), at 6.

34 JIS, written statement presented to SSCI/HPSCI joint hearing (September 20, 2002), at 6- 7.

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In early March 2000, the CIA learned 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 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 "Millennium 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-Hazmi'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-Mihdhar even used his real name in obtaining a motor vehicle identification card from the State of California.37 In July 2000, al-Hazmi even applied to the INS for an extension of his visa, sending in this application using both his real name and his current address in San Diego (where he would remain until that December).38 INS, of course, had no reason to be concerned, since the CIA had

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35 JIS, written statement presented to SSCI/HPSCI joint hearing (September 20, 2002), at 7; see also generally CIA officer, written statement presented to SSCI/HPSCI joint hearing (September 20, 2002), at 3.

36 JIS, written statement presented to SSCI/HPSCJ joint hearing (September 20, 2002), at 8 & 10.

37 JIS, written statement presented to SSCI/HPSCI joint hearing (September 20, 2002), at 8.

38 JIS, written statement presented to SSCI/HPSCI joint hearing (September 20,2002), at 8-9.

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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 TIPOFF. 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 border. [39]

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 200l 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. [40]

Meanwhile, Khalid al-Mihdhar was in Jeddah, Saudi Arabia, and applied for a new U.S.

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39 JIS, written statement presented to SSCI/HPSCI joint hearing (September 20, 2002), at 9; see also CIA official, written statement presented to SSCI/HPSCI joint hearing (September 20, 2002), at 4; Michael Rolince. written statement presented to SSCI/HPSCI joint hearing (September 20, 2002), at 2.

40 JIS, written statement presented to SSCI/HPSCI joint hearing (September 20,2002), at 2] ; see also id. at 10.

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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 of 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. [41]

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41 JIS, written statement presented to SSCI/HPSC] joint hearing (September 20, 2002), at 10.

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The CIA only decided to watchlist al-Hazmi and al-Mihdhar 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. [42] 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, [43] 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 search after the September 11 attacks, finding al-Mihdhar's address "within hours." [44]) It also denied itself any assistance that could have been obtained from Treasury officials in tracking down al-Mihdhar and al-Hazmi through their credit card or banking transactions. As it turned out, however, on September 11, 2001, the two men boarded American 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 AI-Qa'ida-affiliated individuals training at U .S. flight schools, also illustrates the tremendous difficulty our

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42 JIS, written statement presented to SSCI/HPSCI joint hearing (September 20, 2002), at 10; see also Rolince, supra, at 3.

43 JIS, written statement presented to SSCI/HPSCI joint hearing (September 20, 2002), at 11.

44 FBI Agent from New York Field Office, testimony before joint SSCI/HPCSI hearing (September 20,2002), available from Federal News Service (response to question from Senator Shelby).

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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 follow-up was needed, and no managers actually took part in this decision or even saw the memorandum before the September 11 attacks. [45] The CIA was made aware of the Phoenix special agent's concerns about flight schools, but it offered no feedback [46] 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. [47] 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 FBl's possession suggesting a very specific reason to be alarmed about one particular foreign student at an aviation university in the United States. [48]

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45 JIS, written statement presented to SSCI/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 SSC]/HPSCI joint hearing (September 24, 2002), at 11-13.

48 FBl Special Agent in Phoenix, Arizona, electronic communication addressed to Radical Fundamentalist Unit et al. (July 10,2001 ), at 5. The FBI declined to declassify any more specific an account of this information.

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(4) Missed Opportunities

Altogether, the al-Mihdhar/al-Hazmi and "Phoenix EC" stories suggest both the potential of sophisticated information-sharing and good information-empowered analysis and the dangers of jailing 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 information 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 meeting.
• 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 permitted 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

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• Community about terrorists' interest in using aircraft as weapons -it might have been better able to investigate Zacarias Moussaoui and obtain information on some of the other September 11 hijackers from information in Mouassaoui's computer and in his personal effects.
• 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 return 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 II hijacker Rani Hanjour. [49]

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.

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49 JIS, written statement presented to SSCI/HPSCI joint hearing (September 24, 2002), at 10.

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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-Qa'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- haring, 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. [50] ICSIS will, in other words, 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. [51]

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50 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 joint SSCI/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 anyone given access to a certain piece of information not reveal it to anyone else without explicit permission from its originating 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 SSCI/HPSCI hearing (September 20, 2002 ),

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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 SSCI/HPSC] hearing (October 1, 2002), at 6. Our Joint Inquiry also discovered this to be the case, encountering frequent delays allegedly because of the necessity 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 our closest military allies have 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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Such information-hoarding thus goes deeper than simply being "'policy," often reaching the level of simple reflex. For instance, the FBI for years monopolized the processing of information obtained from surveillance under the Foreign Intelligence Surveillance 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 (USSID) 18. And the CIA's Directorate of Operations usually refuses even to let 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 Community, 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-Hazmi 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" and "unprecedented." Even today, however, these sharing

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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 employees. 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]


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52 JIS, written statement presented to SSCI/HPSCI joint hearing (October], 2002), at 7.

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Such detailees commonly bring special experience and contextual knowledge to their assignments that host-agency personnel may lack, but they are seldom fully trusted by their host 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). [53] It is also that of DIA analysts cross-assigned to other IC agencies. [54] 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. [55]

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 level." [56] This may represent considerable progress compared with what prevailed before September 11, but it is woefully inadequate to our intelligence needs in the 21st century.

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53 JIS, written statement presented to SSCI/HPSCI joint hearing (October 1, 2002), at 7-8.

54 JIS, written statement presented to SSCI/HPSCI joint hearing (October 1, 2002), at 13.

55 RADM Lowell E. Jacoby, written statement presented to SSCI/HPSCI joint hearing (October], 2002), at 5.

56 Dale Watson, written statement presented to SSCI/HPSCI joint healring (September 26, 2002), at 4 &6.

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C. 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 "noise" brought in by our wide-ranging means 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

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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 information 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 entities best placed to determine whether outsiders have any "need 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. [58] Rear Admiral Jacoby made the point firmly to our Joint Inquiry, writing that it should be the task of intelligence reformers

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57 RADM Lowell E. Jacoby, written statement presented to SSCI/HPSCI joint hearing (October 1, 2002), at 4.

58 JIS, written statement presented to SSCI/HPSCI joint 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." [59]

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 . [60]

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

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59 Jacoby, supra, at 6.

60 Id

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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, manipulate, integrate, and display all relevant information." [61]


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 collection agencies such as CIA and NSA that enjoy special status precisely because of the monopolization of "their" data- streams (e.g., HUMINT and SIGINT), has drawn this line in ways incompatible with our intelligence needs in the 21st 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

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61 RADM Lowell E. Jacoby, written statement presented to SSCI/HPSCI joint hearing (October 1, 2002), at 7.

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unduly vulnerable to compromise. It is thus the challenge 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 said, 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 multi-level-security databases and computer systems is highly developed, and all that stands between the present moment and the operation of such a database in the National interest is political will." [62]


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62 SSCI Technical Advisory Group, "TAG Findings-&-Recommendations Post-9/11," memorandum to Senators Bob Graham and Richard Shelby (April 3,2002), at 3.

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(2) Faltering Steps Forward

In efforts to meet the analytical challenge of transnational terrorism, both the Department of Defense (DOD) and the Department of Justice (DOJ) 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 (FTTTF) 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

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63 RADM Lowell E. Jacoby, written statement presented to SSCI/HPSCl joint hearing (October 1, 2002), at 2.

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provides technical support. [64] 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 of these innovative analytical cells, however, is simultaneously encouraging and dispiriting. It is encouraging in that it shows a commendable interest in inter- agency information-sharing on something approaching -or at least aspiring 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

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64 JIS, written statement presented to SSCI/HPSCI joint hearing (October 1, 2002), at 15-16. 58

"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 information 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 CTC's ongoing operations.

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65 RADM Lowell E:. Jacoby, written statement presented to SSCI/HPSCI joint hearing (October 1, 2002), at 5.

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More than a year after September 11, there is still "no single agency or database or computer network that integrates all counter terrorism information nationwide." [66] And there is no 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 government for all intelligence -foreign and domestic -to come together. There is currently no place in the government where we put together data from all of our domestic and foreign sources - the CIA, FBI, Department of Defense, Department of State, NSA, and other agencies." [67]


(3) Technological and Bureaucratic Empowerment

(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-interoperability -as opposed to system interoperability, which is much more

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66 JIS, written statement presented to SSCI/HPSCI joint hearing (October 1, 2002), at 5.

67 Lee Hamilton, written statement presented to SSCI/HPSCl joint hearing (October 3, 2002), at 4.

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challenging and is perhaps unattainable [68] -- across the Community, 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."69


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68 Dr. Robert C. Norris, written statement presented to SSCI/HPSCI joint hearing (October 1,2002), at 10 (quoting LTG Peter Cuviello); see also id. at 7 (quoting Brig. Gen. Michael Ennis).

69 RADM Lowell E. Jacoby, written statement presented to SSCI/HPSCI joint hearing (October 1, 2002), at 8.

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In this regard, RADM Jacoby suggested that the Community follow the commercial world in embracing eXtensible Markup Language (XML) was a way to ensure such data- interoperability. [70]

Interestingly, an ongoing project by the Information Awareness Office (IAO) 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. Government, or beyond. The SSCI has been following with great interest IAO's work on what it calls its "Total Information Awareness;' (TIA) project, for this project holds out the prospect of providing the technological tools to achieve radical analyst empowerment vis-a-vis the IC's entrenched information-holders.

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70 Id

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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, TIA 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. [71] 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, [72] Information responsive to user queries would then be passed back through the system to an automated data repository, where it would be stored for analytical exploitation, [73]

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71 The TIA project also contemplates a system of "selective revelation of information," whereby initial responses to a query would indicate merely the presence of responsive entries or patterns, Subsequent queries -and perhaps additional levels of authority -would be needed for the analyst to "bore deeper" into the data.

72 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.

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 users working on specific topics in ways loosely analogous to

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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 21st-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. [74]

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the way in which the software at Amazon.com 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 query, 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). IAO 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 out" attacks within this virtual environment, role- laying 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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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 applied 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 databases which are already 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 of the traditional IC. Nevertheless, projects like this represent a bright spot in the Community's baleful recent history of counterterrorist information- sharing.

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Re: Report of the Joint Inquiry Into the Terrorist Attacks o

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Part 3 of 11

(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 of Homeland 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):

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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 Government." [76]


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." [77]

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

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76 Id. at § 202(a)(1) (emphasis added).

77 See JIS, written statement presented to SSCI/HPSCI joint hearing (October 1, 2002), at 13 (citing VADM Thomas Wilson).

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Homeland Security organization short of leading the way toward this new paradigm, it is my hope -and it was the inspiration behind my contributions to Title II 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 21st century. I dearly hope that, recent press reports to the contrary, [78] the Administration will not squander the opportunity to make true all- source fusion finally work to protect Americans from terrorism.

(4) The Other Side of the Coin: Protecting National Security Information

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78 See, e.g., Eggen & Mintz, supra, at 43.

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In the context of information sharing, a quick word should also be said about the need to protect national security information from unauthorized disclosure. 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 modern Washington. As Attorney General Ashcroft has noted, "there is no doubt and ample evidence that unauthorized disclosures of classified information cause enormous and irreparable harm to the nation's diplomatic, military, and intelligence capabilities." [79] As we have learned during the course of this Joint Inquiry, our Intelligence Community's ability personally to track Usama bin Laden himself was 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 information are far too weak, 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

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79 Attorney General John Ashcroft, letter to Vice President Dick Cht:ney (October 15,2002).

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classified information knowingly to disclose it to someone not authorized to receive it. [80] 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 108th 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 21st 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 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 2001 (Public Law 107-56). This remains an area, however, in which much improvement is

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80 See S.2S07 (106th Congress, 2d Sess.), at § 303.

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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.

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81 18 U.S.C. § 1801 et seq.

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Taking their cue from non-FISA caselaw setting forth the constitutional rules 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 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 [82] 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 FISA, 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 few, 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. [83] Nevertheless, in short order it had

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82 United States v. Truong Dinh Hung, 629 F .2d 908 ( 4th Cir. 1980).

83 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.

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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" involvement in electronic surveillance or physical searches84 under FISA.

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84 Physical searches were not covered by the original FISA statute, being added to the law in 1995. (Before that point, therefore, physical searches still fell under the pre-FISA constitutional standards for warrantless surveillance.)

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More importantly -and, as it turns out, far more perniciously -this half-imagined "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 Affairs Committee in 1999,85 and as subsequently detailed both in a General Accounting Office (GAO) study [86] and the declassified 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" [87] -DOJ attorneys adopted a

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85 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).

86 General Accounting Office, Coordination Within Justice on Counterintelligence Criminal Matters is Limited (July 2001) [hereinafter "GAO Report"].

87 Attorney Genera1's Review Team, Final Report on the Handling of the Los Alamos National Laboratory Investigation (May 2000), declassified version [hereinafter "Bellows Report"].

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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 (FISC) and certainly minimized FISA "intrusions" upon American privacy. [88] It came at the cost, however, of prohibiting a great deal of useful and quite lawful information- sharing and coordination between intelligence and criminal investigators.

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88 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 is, U.S. citizens, lawful permanent residents, or U.S. corporations, see 50 U.S.C. §§ 1801(i) (providing definition) - because FISA imposes special rules for dealing with U.S. persons, see id. at § 1801(a), 1804(a), & 1825(a). FISA surveillance and searches are much more easily available, under the statute, against non-U.S. persons such as foreign diplomats or facilities within the United States. See, e.g., id. at § 1802(a)(1) (permitting surveillance of premises exclusively controlled by a foreign power without need for court approval).

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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 [89] -the most damaging manifestations of this phenomenon came about after 1995, in the wake of the espionage prosecution of senior CIA officer (and Soviet mole) Aldrich Ames. Criminal and intelligence investigators in that case allegedly cooperated closely, so closely that lawyers within Attorney General Janet Reno's Justice Department apparently became convinced that they might "lose" the Ames case if defense 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

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89 See Court of Review Opinion, supra, at 10 (suggesting that this dynamic may have begun "at some point during the 1980s").

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notified of information. [90]

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90 Attorney General Janet Reno, "Procedures for Contacts Between the FBI and the Criminal Division Concerning Foreign Intelligence and Foreign Counterintelligence Investigations," memorandum to Assistant Attorney General, Criminal Division, et al. (July 19, 1995).

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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. [91] 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."92 In short order, OIPR attorneys turned the "primary purpose test" into a defacto "'exclusive' purpose" test.93 No FISA request was permitted to go 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, "[y]et 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 enforcement.

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91 See GAO Report, supra, at 14.

92 Bellows Report, supra, at 732-33.

93 See GAO Report, supra, at 14.

94 See, e.g., Robelio Suro, "FBI's 'Clean' Team Follows 'Dirty' Work of Intelligence," Washington

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(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.95 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]

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Post (August 16, 1999), at A 13.

95 Deputy Attorney General Larry Thompson, "Intelligence Sharing," memorandum to Assistant Attorney General Michael Chertoff et al. (August 6, 2001).

96 Id at 2.

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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, Nawafal-Hazmi, and Zacarias Moussaoui repeatedly ran into the "Wall" and its institutional side-effects: an investigative culture 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 200l in an effort to obtain information. At this point, the CIA knew both that al-Mihdhar and al-Hazmi 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."97 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-Mihdhar and Nawaf al-Hazmi in a meeting on June 11, 2001," [98]


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97 Coter Black, written statement presented to joint SSCI/HPSCI hearing (September 26, 2002), at 3.

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98 JIS, written statement presented to joint SSCI/HPSCI hearing (September 20, 2002), at 21.

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Nor was this all. After the FBI was belatedly notified by the CIA in August 2001 that known Al- Qa'ida terrorists al-Mihdhar 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." [99] 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 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." [100] 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-Mihdhar and al-Hazmi in the last weeks before September 11 [101] -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

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99 JIS, written statement presented to joint SSCI/HPSCI hearing (September 20, 2002), at 21.

100 JIS, written statement presented to joint SSCI/HPSCI hearing (September 20, 2002), at 13 (quoting e-mail message sent on August 29, 2001, from FBI Headquarters to FBI Special Agent in New York City).

101 JIS, written statement presented to joint SSCI/HPSCI hearing (September 20, 2002), at 20.

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after the World Trade Center attacks yielded their address in San Diego "within hours." [102] 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 became 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." [103]

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102 FBI Agent from New York Field Office, testimony before joint SSCI/HPCSI hearing (September 20, 2002), available from Federal News Service.

103 Michael Rolince, written statement presented to joint SSCI/HPSCI hearing (September 20, 2002), at 4.

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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 from pursuing a criminal search warrant against him. [104]

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 OIPR' s longstanding approach to such matters. [105] 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.

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104 JIS, written statement presented to joint SSCI/HPSCI hearing (September 24,2002), at 17-18.

105 During the Wen-Ho Lee affair, for instance, OIPR 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. According to contemporaneous notes taken by FBI officials, Townsend rejected the FBI's efforts to renew FISA discussions with the dismissal that the case had become "way too criminal." See Thompson & Lieberman, supra, at 13.

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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 Moussaoui had some ties, but who were not on the list -to Al-Qa'ida. [106]

(3) Developments Since September 11

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106 JIS, written statement presented to joint SSCI/HPSCI hearing (September 24, 2002), at 19-20; see also Minneapolis FBI Agent, testimony before joint SSCI/HPSCI hearing (September 24, 2002), available from FDCH Political Transcripts (September 24,2002).

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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 assumed 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 be granted where this is "a significant purpose." [107] 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 --provided 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 enforcement- intelligence coordination,108 Although 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

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107 Public Law 107-56 (October 26, 2001), at § 2 18.

108 See Court of Review Opinion, supra, at 21-22 (recounting history of case).

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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 July 1995 guidelines upon the post-September 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 investigations." [109]

The FISC, however, rejected the Attorney General's proposed changes, declaring in a May l7, 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 Wall" between law enforcement and intelligence -finding support for this not

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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 at. (March 6, 2002), at 2.

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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. [110]

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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.

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It was not until November 2002 that the FISA Court of Review -the never-before-used appellate body created by the statute -issued an opinion 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, 200 I: 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. [111] Given its erratic and reflexive behavior after September 11, how faithfully the FISC actually applies this standard to individual FISA requests remains to be seen. [112] Provided that the FBI can persuade its NSLU attorneys to learn FISA law

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111 Ironically, the law stands here today even though the Court of Review held that before the USA PATRIOT Act there 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.

112 There is some room for concern that the FISC's legal instincts have become too congruent with the "Wall" mentality. As the Court of Review acidly suggested in a barbed footnote to its November 2002 opinion, some 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 on the FISC. See Court of Review Opinion, supra, at 20 n.15. The attorney in question is Allan Kornblum, 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 & Joseph 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 of probable cause" as "a faulty interpretation") & 4 (remarks of Senator Lieberman, noting that he "disagreed" with OIPR's 'Judgment call"); Bellows Report, 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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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-Mihdhar, 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 of various U.S. Attorneys around the country accumulated a great deal of information about Al-Qa'ida and other terrorist networks operating within the United States. This information was derived from law enforcement 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.

That this information possessed potentially huge relevance to the Intelligence Community's CT work is beyond question. Indeed, until the late 1990s, at least, U .S. law enforcement offices probably had more information on Al-Qa'ida -its key members operating in the West, its organizational structure, and its methods of operation -than the CIA's CTC. Two

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CT specialists from the Clinton Administration'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 of 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. [114] That most such law enforcement information remained off limits to intelligence analysts before September 11 is terribly, and perhaps tragically, unfortunate. [115]

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113 Daniel Benjamin & Steven Simon, The Age of Sacred Terror (New York: Random House, 2002), at xii-xiii.

114 This office, known as the Maritime Target Development Division (NFTDD), has since been elevated to the status of full-fledged Department office within the ONI organization.

115 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 what 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

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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 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 11 the "Rule 6(e) excuse" acquired an unwarranted mythological dimension of its own.

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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 highh 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 Intelligence 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 fundamentalist 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 involved in plotting to blow up multiple tunnels and monuments in New York City thereafter.

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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 tools for maintaining the independence that the FBI views as its birthright." [116]


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116 Benjamin & Simon, supra, at 227.

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Indeed, by this account, NSC officials met with Attorney General Reno in 1993 about the obstacles this dynamic presented for counterterrorism analysis. "Although 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." [117]

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117 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. [118]

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 [119] and more generally authorizes information-sharing "[n]otwithstanding any other provision of law" [120] -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 hoard information. Indeed, Title IX of the Act included a provision that, subject to the Attorney General's establishment of procedures and standards for such sharing, requires law enforcement organs to pass information with intelligence significance to the Intelligence Community. [121]

(5) Recommendations

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118 P.L. 107-56, at § 203(a).

119 Id. at § 203(b ).

120 Id. at § 203(d).

121 Id. at § 905.

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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. [122] If it wishes to see these improvements in information-sharing and law enforcement-intelligence coordination succeed in the long term, the 108th Congress should consider exempting them from the "sunset" provision. [123]

The 108th Congress should also reintroduce and promptly approve the amendment to FISA proposed in June 2002 by Senators Kyl and Schumer. This legislation -which was introduced during the 107th Congress as S.2586 -would modify the "foreign power" definition in the FlSA statute to permit the issuance of surveillance or search orders against non-U.S.

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122 See id at § 224(a) (providing for expiration of certain provisions).

123 Congress should also closely monitor the Intelligence Community's use of grand jury and other protected law enforcement information. Such 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 (107h Cong., 2d Sess.), at § 306, but this provision was removed in conference at the insistence of the Administration. The 108th 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 incorporated over time into intelligence products denied to the committees because they contain such material.

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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 SSCI 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 "flat" 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 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 situations), modern terrorist groups are increasingly interested simply in annihilating their perceived enemies on as grand as scale as technologically feasible.

Modern 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

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124 Marion E. ("Spike") Bowman, written statement submitted to SSCI hearing (July 31, 2002), at 1.

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definition of a terrorist "foreign power." Senators Kyl and Schumer have proposed to permit FISA 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 -one that would be free of the structural, organizational, and cultural constraints

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that have greatly handicapped the FBI's ability to conduct the domestic intelligence work our 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 of 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 mind sets 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

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traditional job quite well. But the tyranny of the case file presents a fundamental obstacle to national security work, for the simple reason that law enforcement orgar1izations handle information, reach conclusions, and ultimately just think differently 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 and assembled into a probabilistic "mosaic" of information. They seek to distinguish useful "signals" from a bewildering 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 of possibility 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

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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 circumstances 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.
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Re: Report of the Joint Inquiry Into the Terrorist Attacks o

Postby admin » Sat Mar 26, 2016 9:04 am

Part 4 of 11

(1) Resistance to Intelligence Analysis

(a) Impact of "Casefile " Mentality on pre-9/11 Analysis


The Joint Inquiry Staff (JIS) 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 connection 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." [125] Convinced that the only information that really matters 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, [126] the episode disappeared into the depths of an old case file and slipped out of the FBI's usable institutional memory.

The handling of information 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

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125 JIS, written statement presented to SSCI/HPSCI joint hearing (September 18, 2002), at 11- 2.

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 SSCI/HPSCI joint hearing (September 18, 2002), at 26-28.

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"casefile" mentality, in fact, that it bled over into the basic architecture of how the Bureau handled terrorist information even when it tried to do intelligence analysis.

As the JIS 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 FBl 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-term strategic analytical work, and is patently inappropriate to counterterrorism analysis against the loose, interconnected and overlapping networks of Islamic 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 analysis -and the FBI'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

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127 JIS, written statement presented to SSCI/HPSCI joint hearing (September 24,2002), at 14.

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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." [128]

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 concerned about that same flight school two years before -because the personal pilot of Usama bin Laden (UBL) had been training there. [129]

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 "fusion." 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

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128 JIS, written statement presented to SSCI/HPSCljoint hearing (September 18, 2002), at 18.

129 JIS, written statement presented to SSCI/HPSCI joint hearing (September 24, 2002), at 19.

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the FAA that its "investigations" did not suggest any "evidence" of terrorist plans to target U.S. domestic civil aviation. [130]

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130 JIS, written statement presented to SSCI/HPSCI joint 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

"[t]he FBI's focus at the time 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." [132]


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131 JIS, written statement presented to SSCI/HPSCI joint hearing (Septernber 24, 2002), at 10.

132 JIS, written statement presented to SSCI/HPSCI joint hearing (Septernber 24, 2002), at 19.

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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 Surveillance Act (FISA). [133] The FBI's problems in counterterrorist intelligence before September 11 were thus threefold: the Bureau did not know 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 II attacks, it was unable to place the Moussaoui case in the analytical context that would have made this information useful 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

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133 At a joint SSCI/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 FB1 in calendar year 2001. (The number of "disseminations" issued by the FBI to other members of the IC - mostly in connection with FISA surveillance or searches -since October 2001 is much higher.)

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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.134 (Given the FBI's poor record of internal information-sharing, it is conceivable that the author was not even aware of the broader analytical context, 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. [135]

(b) Analysis versus 'Investigations'

(i) Disinterest in Analysis


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134 JIS, written statement presented to SSCI/HPSCI joint hearing (September 24, 2002), at 18.

135 JIS, written statement presented to SSCI/HPSCI joint hearing (September 24, 2002), at 21.

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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 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." [137]


These problems were, in large part, an outgrowth of the "casefile" mentality that prevailed at the Bureau. According to the JIS,

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136 Dale Watson, written statement presented to SSCI/HPSCI joint hearing (September 26, 2002), at 3.

137 JIS, written statement presented to SSCI/HPSCI joint hearing (Septernber 18, 2002), at 28- 9.

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"the case-driven, law enforcement approach, while important and extremely productive in terms of the FBI's traditional mission, does not generally 'incentive' 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." [138]


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 no defendants at all, and analytic work almost never produced easily-quantifiable career 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 -- instead 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 organization's national security components.

On top of a 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

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138 JIS, written statement presented to SSCI/HPSCI joint hearing (September 24, 2002), at 2-3.

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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 the 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." [139] 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 -which perhaps explains the Bureau's longstanding failure to insist upon clear standards for adjudging intelligence "analyst" qualifications in the first place. [140]

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139 JIS, written statement presented to SSCI/HPSCI joint hearing (September 18, 2002), at 28-29; see also id. at 18.

140 The SSCI became so concerned about the fuzziness 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

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individuals as 'analysts' or 'intelligence analysts' without adherence to a meaningful common definition of that word." 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 announced 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 FBl's capacity for information analysis." [141] According to Attorney General Reno, this new organizational scheme would "help enable the Bureau to face the challenges of the next millennium."142 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." [143]

"The manner in which the Phoenix EC was handled demonstrated

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141 Federal Bureau of Investigation, press release (November 19, 1999), at 1-2.

142 Id. at 1.

143 JIS, written statement presented to SSCI/HPSCI joint hearing (September 24, 2002), at 2.

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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." [144]


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144 JIS, written statement presented to SSCI/HPSCI joint hearing (September 24, 2002), at 8.

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Due to "[i]nadequate information sharing within the FBI, particularly between the operational and analytic units," [145] 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" (IOSs) -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. [147] 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 of the 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." [148]


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145 JIS, written statement presented to SSCI/HPSCI joint hearing (September 24, 2002), at 2.

146 For a summary of information relating to this context, see JIS, written statement presented to SSCI/HPSCI joint hearing (September 24,2002), at 3.

147 JIS, written statement presented to SSCI/HPSCI joint hearing (September 24, 2002), at 7.

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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


In addition to these cultural and organizational problems -or perhaps in large part because of them - he 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.

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148 JIS, written statement presented to SSCI/HPSCI joint hearing (September 24, 2002), at 8.

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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. [149] 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." [150] 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." [151] 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 JIS, 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

149 JIS, written statement presented to SSCI/HPSCI joint hearing (September 24, 2002), at 9.

150 JIS, written statement presented to SSCI/HPSCI joint hearing (September 24, 2002), at 2.

151 JIS, written statement presented to SSCI/HPSCI joint hearing (September 24, 2002), at 9.

152 JIS, written statement presented to SSCI/HPSCI joint hearing (September 24, 2002), at 9.

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compare the IT capabilities of the CIA with those at FBI.

"At CIA, the DCI's CTC maintains a massive database of terrorist 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 briefings, memoranda, and working notes." [153]


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 bringing the FBI up to "Community standards" in the IT realm, those standards are themselves inadequate to the challenges of 21st-century intelligence analysis.

(b) A Pattern of Failures

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153 JIS, written statement presented to SSCI/HPSCI joint hearing (September 20, 2002), at 3.

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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 information in its own files linking the People's Republic of China to illicit political influence operations during the 1996 U .S. Presidential campaign. [154] 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. [155] It happened on several occasions during the FBI's botched handling of the Wen- Ho Lee nuclear espionage investigation, when agents in the Albuquerque field office or at FBI Headquarters 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. [156]

As detailed by the JIS 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

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154 See U.S. Department of Justice, Office of the Inspector General, The Handling of FBI Intelligence Information Related to the Justice Department's Campaign Finance Investigation (July 1999) [unclassified Executive Summary], available at http://www.usdoj.gov.:80/oig/tbicfi/fbicfi.lhtm

155 See, e,g" David Johnson, "Citing FBI Lapse, Ashcroft Delays McVeigh Execution," New York Times (May 12,2001), at AI.

156 See Thompson & Lieberman, supra,at 3-4 & 11.

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Khalid al-Mihdhar and Nawaf al-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." [157] 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

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157 Gen. William Odom, USA (ret.), written statement presented to JIS hearing (October 3, 2002), at 4.

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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 field 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 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 agen1:s "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

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158 Eric Lichtblau, "FBI Officials Say Some Agents Lack a Focus on Terror," New York Times (November 21,2002), at 1 (quoting Deputy Director Bruce J. Gebhardt).

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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 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 reforms.)

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A third approach might be to move the FBI's CI and CT functions; to the new Department of Homeland Security, thereby adding a domestic collection element to that organization's soon- to-be-created Undersecretariat for Information Analysis and Infrastructure Protection. This might allow the collection components to take advantage of working within a "national security" culture rather than a "law enforcement" culture, and would give them a broader base of institutional support than they might enjoy as a freestanding "MI-5" within the Intelligence Community. Many Americans, however, might be uncomfortable with combining these functions with the already sweeping security responsibilities of the new Department.

Whatever the best answer turns out to be, I believe some kind of radical reform of the FBI is in order -- indeed, is long overdue -- and should be a major item on the "intelligence reform" agenda for the 108th Congress. The FBI has, unfortunately, shown that in its present form, it is not capable of successfully performing domestic intelligence collection and analysis against modern CI and CT challenges. The Bush Administration and the 108th Congress should make it a high priority to resolve these issues, and to put the domestic components of our Intelligence Community on a footing that will enable them to meet the challenges of the 21st century.

V. Human Intelligence

In an unclassified report such as this one, it is hard to provide much supporting information for a critique of human intelligence (HUMINT) operations against terrorist groups prior to September 11. Suffice it to say, however, that the status quo of Intelligence Community approaches in this regard was tested against the Al-Qa'ida threat and found wanting.

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CIA officials have publicly boasted that they had operatives in Afghanistan before September 11, [159] but careful observers should not confuse the periodic infiltration of operatives for brief liaison meetings with friendly warlords for a real HUMINT or paramilitary presence. Such unfounded braggadocio aside, the distinguishing feature of anti-terrorist HUMINT three years after the embassy bombings and the DCI's "declaration of war" against Al-Qa'ida was our lack of HUMINT penetration of the organization, especially of its central operations.

It is well known in the intelligence world that "[c]landestine handling of agents or other covert activity is usually assigned to intelligence officers under diplomatic cover" [160] -that is, to officials operating out of embassies who, while they face greater risks than the average diplomat, are in the final analysis protected from arrest by diplomatic immunity. The CIA's HUMINT collection service, the Directorate of Operations (DO), admits to occasionally using non-official cover (NOC) officers, [161] but such assignments are the rare exception rather than the rule, and

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159 See, e.g., Drogin, supra (quoting CIA Deputy Director for Operations Jim Pavitt that "we were there before the 11th of September").

160 FBI Section Chief Timothy D. Bereznay, statement for the record submitted to the House International Relations Committee (May 11, 2000), at 2.

161 Both DCI Tenet, during his confirmation hearing, and his predecessor John Deutch have discussed CIA policy with respect to the employment of NOCs posing as members of certain professions. As Deutch explained it, the CIA has a policy of generally avoiding "having a U .S. intelligence asset use U.S. journalistic cover ." John Deutch, testimony before SSCI hearing (February 22,

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NOCs too often suffer career damage because their nonconventional assignments necessarily remove them from the usual network of DO contacts and advancement opportunities.

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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).

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This balance between diplomatic cover officers and NOCs may have served the CIA tolerably well during the Cold War -though HUMINT was never regarded as our strong suit against the Soviets - but it is patently unsuited to HUMINT collection against nontraditional threats such as terrorism or proliferation targets. As former DCI James Woolsey has observed, "[o]ne needs to use non- official cover officers to recruit spies inside terrorist organizations," because "not too many [Al- Qa'ida] supporters and friends attend embassy cocktail parties."162 Especially against Al-Qa'ida - which is known actively to seek out Islamic converts such as Jose Padilla, John Walker Lindh, and Richard Reid, who have "legitimate" papers and can travel and live in the West without raising much suspicion -it is hard to understand why the CIA was not more interested in, and successful at, NOC-based HUMINT operations against AI-Qa'ida before September 11.

The CIA has relied too much, in my view, upon traditional embassy-based HUMINT, and not enough upon NOCs. It has also focused too heavily upon HUMINT operations conducted in collaboration with foreign intelligence services. There is nothing intrinsically wrong with liaison service work, and such collaboration has produced some of the greatest HUMINT successes we have had in the war against terrorism. Liaison operations are also by far the easiest sort of HUMINT for CIA officers to conduct against terrorist groups when those officers are operating under diplomatic cover. (Visiting one's liaison counterpart at his office is rather less hazardous than actually developing sources in the souk, and "State Department" employees are unlikely to be invited to many radical Islamist meetings anyway.) Liaison work, however, is inherently conducted only on the basis of, and limited by the extent of, the cooperative service's own interests -rather than those of the CIA or the United States. They are

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162 James Woolsey, testimony before Senate Judiciary Committee Subcommittee (September 3, 1998), available from Federal News Service transcripts (September 3, 1998).

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also of necessarily limited utility in countries in which the host government is, to some extent at least, part of the problem. In the final equation, there is no substitute for mounting our own extra-embassy, non-official cover HUMINT operations.

It is far past time for the CIA to recognize the sharp limitations of its traditional Cold War approach to HUMINT, and to begin serious development -in a large-scale, programmatic way, rather than simply on an ad hoc or "volunteer" basis -of nontraditional HUMINT "platforms" and the use of NOCs. A greater emphasis upon non-Caucasian NOC officers would also probably pay dividends out of proportion to the investments necessary to recruit and train such individuals. Indeed, it is perhaps in getting undercover agents out (and at risk) amongst the "target" population that the HUMINT operators of the DO perhaps have the most to learn from their law enforcement counterparts. If the Drug Enforcement Administration can put actual, salaried American officers undercover in clannish narcotrafficking organizations in foreign countries, surely the CIA can learn to penetrate aggressively proselytizing Islamic fundamentalist organizations. We depend upon them to do just that.

As a final note, it is worth pointing out that I do not believe the language in the Joint Inquiry's "Recommendations" concerning the importance of enhancing "the recruitment of a more ethnically and culturally diverse workforce with the intelligence skills and expertise needed for success in counterterrorism efforts" is meant to represent our collective endorsement of workplace diversity for its own sake. Rather, the Committees believe that the challenges of both understanding and penetrating international terrorist organizations and the milieu in which they move require that the Intelligence Community seek to develop larger numbers of native- speaking translators, culturally-attuned analysts, and HUMINT operators -especially NOC officers - ethnically and culturally indistinguishable from their collection targets. In legal terms,

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certain specific target-related types of ethnic and cultural diversity should be sought as a bona fide occupational qualification. Without a fundamental shift in the CIA's operational paradigm, diversity for diversity's sake alone will do little to improve the CIA's ability to execute its mission.

VI. Covert Action

A. Clarity and Support


As with HUMINT operations, there is obviously little one can say here about the lessons that should be learned from the CIA's clearly mixed record of success in offensive operations against Al-Qa'ida before September 11, 2001. [163] One important lesson, however, was suggested by former National Security Advisor Sandy Berger in his testimony before our Joint Inquiry. In giving covert action instructions to the CIA, he said it is incumbent upon the President to convey

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163 DC1 Tenet confirmed the existence of CIA offensive operations against Al-Qa'ida in public testimony before the Joint Inquiry .See George Tenet, testimony before joint SSCI/HPSCI hearing (October 17, 2002), available from FDCH Political Transcripts (October 17, 2002) (declining to discuss specific legal authorities received by CIA to conduct operations before September 11, 2001 but describing "offensive operations" and a "plan of attack" both "inside Afghanistan and globally" to "render" Al-Qa'ida terrorists [capture and deliver them to appropriate authorities], "disrupt" Usama bin Laden's terrorist infrastructure and finances, and otherwise "degrade his ability to engage in terrorism").

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legal authorities -the limits spelled out in a covert action "finding" or Memorandum of Notification (MON) as to what agents are permitted to do in pursuit of the stated aim -- with absolute clarity.164 Unfortunately, as the committees have heard repeatedly from knowledgeable participants, Berger's injunction was honored more in the breach than in the observance by the very Administration he served.

Particularly given the unpleasant history of covert action scandals that have affected the CIA, one should not be surprised to find that - ironically, perhaps -the covert action infrastructure is a relatively cautious one. Intelligence officers will often, and with good reason, hesitate to take operational risks or to push aggressively to accomplish their missions if they are operating under ambiguous or convoluted legal authorities and always suspect that they may be prosecuted or hauled before a hostile inquiry for any actual or perceived missteps. This admonition clearly applies to both Executive Branch and Congressional leaders: whatever the merits or demerits of the policies they are asked by the President to execute, our intelligence operators risking their lives in the field need to know that their own government will make clear to them what their job is and protect them when they do it. Neither assurance, unfortunately, could be had by the DO's covert action staffs working against terrorism in the late 1990s.

As far as the anti-terrorism efforts of the Intelligence Community since September 11 are

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164 Sandy Berger, testimony before joint SSCI/HPSCI hearing (September 18, 2002), available from FDCH Political Transcripts (September 19, 2002) (remarking with respect to covert action authorities that "We certainly would have to have clarity from the President of the United States ...").

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concerned, I believe it is important that the record reflect that we on the oversight committees of Congress have been kept apprised of the new approaches and initiatives adopted by the President as part of our country's war on terrorism. As any perusal of our closed hearing records at the SSCI will show, we have been uniformly supportive. These are challenging times, and they have in some respects demanded unprecedented responses. In the past, Congress has sometimes contributed to cultural and legal problems of risk-aversion within the Intelligence Community by conducting high-profile investigations into intelligence activities. Congress can and must continue to assert its prerogatives in undertaking careful oversight of IC activities and conducting investigations wherever necessary. Historians of the United States' war on terrorism, however -- and, above all, our intelligence operatives currently in the field -should be aware that our committee Members have forcefully supported the IC's current counterterrorist campaign. Far too much is already publicly known about this campaign, but if and when the full story is actually told, it must be made clear that what has occurred has been undertaken with the knowledge and support of the oversight organs of our national legislature.

2. Oversight Challenges

Perhaps in part because of frustrations with the existing covert action system, it has been widely reported that the Defense Department is interested in augmenting a quasi-covert action capability of its own, based upon its highly competent cadre of special operations forces (SOF). [165] If this parallel system works, I wish it well: the covert action side of the war on terrorism could certainly use the manpower and expertise. It is worth emphasizing, however, that a greater DOD involvement in the world of covert action could present oversight challenges

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165 See, e,g , Schmidt & Ricks, supra.

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for Congress.

The oversight mechanism and reporting requirements for covert action contained in 50 U.S.C. §§ 413b, of course, operate in a functional basis rather than an agency-specific one. The law does not require that only the CIA conduct covert action: rather, the President can designate any government entity for this purpose if he sees fit. DOD forces conducting covert action-type operations against Al-Qa'ida, however, may be harder for Congress to oversee if the Defense Department decides to treat attacks on Al-Qa'ida and affiliated terrorist networks as part of its "wartime" operational responsibilities rather than as part of covert action policy.

Like the rules in Executive Order 12,333 regarding "assassination," some might argue that "covert action" is a conceptual category more appropriate to times of "peace" in which special restrictions and oversight rules are crafted to oversee the government's employment of certain somewhat sinister policy tools. By this argument, operational conduct in attacking "enemy" forces in time of "war" is something else entirely -and is not something into which Congress has traditionally enjoyed any meaningful visibility, let alone had "oversight" responsibilities. In truth, such questions are legal matters of first impression, because the federal laws governing covert action were not yet in place the last time we faced a bitter war of indefinite duration against a global enemy. How exactly the line is drawn between "covert action" oversight and "operational" opacity, therefore, remains to be determined. The 108th Congress should watch these issues carefully, for the oversight committee -- are the only real "check" our constitutional scheme provides in these areas. We should take care that any alleged covert action "exception" does not swallow its rule.

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VII. Accountability

The story of September 11 is one replete with failures: to share information, to coordinate with other agencies; to understand the law, follow existing rules and procedures, and use available legal authorities in order to accomplish vital goals; to devote or redirect sufficient resources and personnel to counterterrorism work; to communicate priorities clearly and effectively to IC components; to take seriously the crucial work of strategic counterterrorism analysis; and most importantly, to rise above parochial bureaucratic interests in the name of protecting the American people from terrorist attack.

One of the mandates of this inquiry has been to "lay a basis for assessing the accountability of institutions and officials of government"166 by identifying any problems and failings within the Intelligence Community that helped leave us unprepared for the terrorist attacks. The Joint Inquiry's recommendations call for the agency Inspectors General to

"review the factual findings and the record of this Inquiry and conduct investigations and reviews as necessary to determine whether and to what extent Intelligence Community personnel at all levels should be held accountable for any omission, commission, or failure to meet professional standards in regard to the identification, prevention, or disruption of terrorist attacks, including the events of September 11, 2001."


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166 SSCI & HPSCI, "Initial Scope of Joint Inquiry" (June 5, 2002), from the preamble.

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The DCI has declared us to be at "war" against Al-Qa'ida since 1998, and as the President has declared, we have really been so since at least September 11. Some have suggested that this means that we should postpone holding anyone accountable within the Intelligence Community until this war is over and the threat recedes. I respectfully disagree.

The threat we face today is, unfortunately, in no danger of subsiding any time soon, and the problems our Intelligence Community faces are not ones wisely left unaddressed any longer. Indeed, it is precisely because we face a grave and ongoing threat that we must begin reforming the Community immediately. Otherwise we will simply be unable to meet this threat. The metaphor of "war" is instructive in this regard, inasmuch as wise generals should not -and historically do not -hesitate to hold their subordinates accountable while the battle still rages, disciplining or cashiering those who fail to do their duty. So also do wise Presidents dispose of their faltering generals under fire. As the fabric of military law makes clear, failures in wartime are traditionally considered less excusable, and are punished more severely, than failures in times of peace. If we are indeed at war, accountability is more important now than ever, for it is through insisting upon accountability that life-threatening problems may best be fixed.

Nor should we forget that accountability has two sides. It is also a core responsibility of all good leaders to reward those who perform well, and promote them to positions of ever greater responsibility. In urging the Intelligence Community to hold its employees accountable, the IC must therefore both discipline those who fall down on the job and reward those who have excelled. For officials charged with protecting our national security and keeping Americans safe from attack, professional advancement should proceed by Darwinian selection.

For these reasons, it is disappointing to me that despite the Joint Inquiry's explicit

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mandate to "lay a basis for assessing the accountability of institutions and officials of government" and despite its extensive findings documenting recurring and widespread Community shortcomings in the months and years leading up to September 11, the Joint Inquiry has not seen fit to identify any of the persons whose decisions left us so unprepared. Careful readers of the Joint Inquiry's findings will be left with little doubt as to the identities of at least some of the officials responsible. It is unfortunate, however, that the Joint Inquiry has shied away from its oversight responsibilities in refusing to provide more of the accountability to which we ask the IC to subject itself. I thus urge President Bush carefully to examine the Joint Inquiry's findings in order to determine the extent to which he has been well served by his "generals" in the Intelligence Community.

Some have argued that we should avoid this issue of accountability lest we encourage the development of a worse climate of intra- community risk-aversion and legal timorousness than the Committees have already seen during the 1990s. I do not believe this is the case. To begin with, the failings leading up to September 11 were not ones of impetuousness, the punishment for which might indeed discourage the risk-taking inherent in and necessary to good intelligence work. The failures of September 11 were generally ones not of reckless commission but rather of nervous omission. They were failures to take the necessary steps to rise above petty parochial interests and concerns in the service of the common good. These are not failings that will be exacerbated by accountability. Quite the contrary. And, more importantly, it is clear that without real accountability, these many problems will simply remain unaddressed -leaving us terribly and needlessly vulnerable in the future.

By no means do I advocate a crusade to hold low-level employees accountable for the failures of September 11. There clearly were some individual failings, but for the most part our

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hard-working and dedicated intelligence professionals did very well, given the limited tools and resources they received and the constricting institutional culture and policy guidance they faced. The IC's rank-and-file deserve no discredit for resource decisions and for creating these policies.

Ultimately, as the findings of the Joint Inquiry make clear -though they carefully stop short of saying so explicitly -accountability must begin with those whose job it was to steer the IC and its constituent agencies through these shoals, and to ensure that all of them cooperated to the best of their abilities in protecting our national security. Responsibility must lie with the leaders who took so little action for so long, to address problems so well known. In this context, we must not be afraid publicly to name names, and I do so here. The U.S. Intelligence Community would have been far better prepared for September 11 but for the failure of successive agency leaders to work wholeheartedly to overcome the institutional and cultural obstacles to inter-agency cooperation and coordination that bedeviled counterterrorism efforts before the attacks: DCls George Tenet and John Deutch, FBI Director Louis Freeh, and NSA Directors Michael Hayden and Kenneth Minnihan, and former NSA Deputy Director Barbara McNamara. These individuals are not responsible for the disaster of September 11, of course, for that infamy belongs to Al-Qa'ida's 19 suicide hijackers and the terrorist infrastructure that supported them. As the leaders of the United States Intelligence Community, however, these officials failed in significant ways to ensure that this country was as prepared as it could have been.

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Re: Report of the Joint Inquiry Into the Terrorist Attacks o

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Part 5 of 11

ADDITIONAL VIEWS OF REPRESENTATIVE MIKE CASTLE: (R-DELAWARE) TO BE APPENDED TO THE REPORT OF THE JOINT INQUIRY ON THE SEPTEMBER 11, 2001 TERRORIST ATTACKS ON THE UNITED STATES

I fully support the findings and recommendations that were debated and approved by the Members and Senators serving on the Joint Inquiry on the September 11, 2001 terrorist attacks on the United States. As the outgoing Chairman of HPSCI's Technical and Tactical Subcommittee, I want to communicate my strong support for Recommendation 10 concerning the National Security Agency's past performance and future role in the global war on terrorism. Specifically, the Joint Inquiry's Recommendation 10 mandates a report from the Director of the National Security Agency to the House and Senate Intelligence Committees no later than June 30, 2003 that will provide the following: (1) a description of solutions for the technological challenges confronting the NSA in the war on terrorism; (2) a quarterly review of the goals, products to be delivered, funding levels, and schedules for every NSA technology development program so as to ensure strict accountability for NSA program expenditures; (3) the implementation by NSA, CIA and FBI of a strategy to fully integrate these agencies' collection and analytic capabilities in the war on terrorism; and ( 4) the development of legislative proposals to improve NSA's coordination and collaboration with other elements of the U.S. Intelligence Community.

Although the issue of visa issuances and control was not within the scope and jurisdiction of the Joint Inquiry's review, we did review some information that gave us a glimpse into this issue. As a result, I am very concerned that significant reforms need to be implemented immediately with respect to the management, coordination and oversight of our Nation's visa program. The visa program has suffered from a lack of accountability, unclear lines of bureaucratic responsibility between the Departments of State and Justice, and contradictory legal authorities. The State Department's Bureau of Consular Affairs and the Justice Department's Immigration and Naturalization Service have joint responsibility for the management of our visa program, yet this program's administration has been characterized by poor management practices, uneven enforcement policies, and inadequate coordination between these agencies and other elements of the U.S. intelligence and law enforcement communities. The majority of the

September 11th hijackers were wrongly admitted to the United States -- in violation of U.S. immigration laws --as a result of decisions made and errors committed by responsible State Department and Justice Department officers. The fact that many of them entered and operated in true name, further emphasizes the extent to which the current system is broken.

Entry of foreign nationals into the United States is a privilege that demands clear authorities to determine who may legally enter the United States with a visa, accurate information on all visa applicants that is fully shared between the relevant agency decisionmakers, and full accountability to ensure that the requirements of consular and immigration law are properly enforced.

Equally troubling is our government's inability to properly account for foreign nationals who overstay the authorized period of their visas. These foreign nationals are in violation of our immigration laws and should be held legally accountable. Although the recently enacted Department of Homeland Security bill addresses the need for visa reform, I strongly believe that significant legislative changes are urgently needed to redirect and reorganize our national visa policies.
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Re: Report of the Joint Inquiry Into the Terrorist Attacks o

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Part 6 of 11

ADDITIONAL COMMENTS JOINT INQUIRY STAFF REPORT U.S. SENATOR MIKE DEWINE DECEMBER 18, 2002

My purpose in providing these additional comments is to express my support for certain recommendations, my reservations regarding others, and my concerns about key intelligence areas that simply are not addressed in the report's recommendations. Accordingly I have identified several areas of this report that merit additional comment.

INCREASE RESOURCES

The tragic September 11th terrorist attacks represent a massive intelligence failure. Congress and past Administrations, over a period of many years, failed to provide adequate resources to the Intelligence Community. To avert future attacks and improve the security of this nation, in the weeks and months and years ahead, we will need to invest a considerable amount of time and resources in making up for decades of shortfalls in our commitment to intelligence. That will necessitate an on-going, continuous, sustained effort ultimately aimed at reforming the Intelligence Community.

FISA CHANGES

FISA is one of the primary weapons we have in our war on terrorism, and it is crucial that the Intelligence Community be able to use it aggressively and effectively. The recent Court of Review decision is an important clarification, which should allow the Intelligence Community to confer and coordinate more effectively with law enforcement officials. Nonetheless, the report makes a major omission by failing to recommend any further enhancements to the FISA statute.

FISA -- Amend and Make Stronger

It is important that we continue to refine and improve the FISA statute, and consequently, I believe that Congress should adopt the proposed Kyl/Schumer amendment to FISA and the proposed DeWine amendment to FISA.

The Kyl/Schumer amendment would remove the requirement that the subject suspected of international terrorism be affiliated with a "group engaged in international terrorism or activities in preparation therefore." This change would allow the surveillance of individuals who are not affiliated with any terrorist group and would give the government another weapon to terrorists, who act alone.

The De Wine amendment would lessen the burden on the government by changing the standard for showing that a proposed FISA target is "a foreign power or agent of a foreign power." Rather than the current "probable cause" standard, the amendment applies a "reasonable suspicion" standard. Both standards require the court to apply a "totality of the circumstances" test and examine all the various factors to determine if the government has met its burden. But the reasonable suspicion standard is slightly easier to satisfy , and that is appropriate, because these cases involve national security interests. Under such dangerous circumstances, it is appropriate to balance the competing interests in a slightly different \\lay than usual, and make it a little bit easier for the law enforcement interest to prevail. Such a change would make it a little more likely that FISA surveillance is permitted and would make it more likely that FISA can effectively be used in the war on terrorism. For example, in the case of the Moussaoui investigation, there was some uncertainty about whether the facts were sufficient to find probable cause, and so the Justice Department did not apply for a FISA warrant (However, under any legitimate reading of the facts in Moussaoui, the government could have met a reasonable suspicion standard and most likely would have asked for and received surveillance authority.).

FISA -- Congressional Oversight

In addition to these and other enhancements to FISA, it is important that Congress improve the quality and quantity of oversight with regard to FISA. There are two separate and distinct reasons for this. First, as the recent Court of Review opinion made clear, in recent years, the

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FISC has imposed on the Justice Department a set of court-created FISA rules that have unnecessarily limited the use of the FISA statute. [1] More vigorous and informed Congressional oversight might have prevented those limitations from being imposed.

Furthermore, the Intelligence Committees should hold regularly scheduled hearings to examine the FISA process and receive testimony from senior officials at OIPR and the FBI. These hearings should explore the FISA process and provide information as to how FISA is being implemented. For example, in order to better determine how the Executive Branch is utilizing FISA, the Committee should examine the number of FISA warrants issued during a given period of time and the general subject matter or issues those warrants were meant to address. Furthermore, these hearings should be used to explore a wide range of hypothetical situations -- situations based on actual cases that demonstrate to the Committee how the law would be applied in certain scenarios. This would allow the Committee to develop a better understanding of how FISA is being implemented in a practical, day-to-day manner and also alert the Committee to any instances where the FISC or Justice Department is departing from Congressional intent.

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1 As originally drafted in 1978, FISA allowed surveillance when "the purpose" of that surveillance was to obtain "foreign intelligence information," which is defined, essentially, as information the government needs to protect against attack, sabotage, clandestine intelligence activities, or international terrorism. Over the years, the FISC interpreted "the purpose" to mean "the primary purpose," and interpreted "foreign intelligence information" to mean information that the government needs to protect itself against attack, sabotage, etc., using methods other than law enforcement. So, the FISC took the view that using a FISA warrant to obtain foreign intelligence information that was primarily for use as part of an intelligence strategy, (e.g., to flip a spy) was legitimate; using a FISA warrant to obtain information that was primarily for use as part of a law enforcement strategy (e.g., prosecution) was not legitimate.

One of the indicia used by the FISC to determine whether the primary purpose was intelligence (legitimate) or law enforcement (not legitimate) was the degree of involvement by law enforcement agents in the investigation and FISA application process. Accordingly, the Justice Department, with the approval of the FISC, adopted very restrictive guidelines to minimize law enforcement contact with intelligence officers.

After the passage of the Patriot Act, the Justice Department litigated the issue of how much contact is allowed between intelligence agents and law enforcement officials, and on appeal, the Foreign Intelligence Surveillance Court of Review overruled the FISC. The Court of Review held that FISA, as originally drafted, did not contain any distinction between foreign intelligence information utilized as part of an intelligence strategy and foreign intelligence information used as part of a law enforcement strategy. Accordingly, the Justice Guidelines strictly limiting contact between law enforcement agents and intelligence officers have never been necessary .It is interesting to note that the Court of Review found that the Patriot Act actually created a distinction between law enforcement use and intelligence use of FISA information. However, because of other modifications in the Patriot Act, the Justice Department is still free from earlier, FISC-created limitations on contact between intelligence officers and law enforcement.

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FISA -- Protecting Civil liberties

The second reason enhanced Congressional oversight is important is because it would provide increased protection of the civil liberties of potential FISA surveillance targets. The FISA process, rightfully so, is highly secretive and not subject to the usual procedural protections built into most other courtroom proceedings. Accordingly, it is particularly important that the Intelligence Committee provide oversight to assure that the FISA process is not being abused, especially now, as we look for ways to enhance and further utilize it in the war against terrorism.

In doing so, the Intelligence Committee should consider whether or not the current FISA process provides adequate legal representation for the legal position of potential subject of surveillance. The inherently ex parte nature of the application process raises concerns about civil liberties and may have the counterintuitive effect of making the FISC and even the prosecutors reluctant to use FISA to the full extent allowed by law. Congress should consider whether it could be useful to provide authority to the FISC and to the Court of Review to appoint, on a case-by-case basis, an advocate for the subject. The advocate could be one of a number of pre-cleared attorneys with prior FISA experience, who could serve as a defense attorney on a limited number of cases, where the FISC or Court of Review felt it would be useful. [2]

EMPOWERING THE HEAD OF THE INTELLIGENCE COMMUNITY

I believe we need to create a cabinet-level intelligence position -- a director of intelligence, who is ultimately responsible for control of the budgets and operations of the overall Intelligence Community. While most experts seem to agree that we need to strengthen the head of national intelligence -- whether that is the DCI or the DNI or some other cabinet-level position -- there is less agreement as to how we go about doing this. My own view is that there are two critical things to keep in mind if we empower the head of national intelligence. First, we need to give the DCI complete budget authority, and second, we need to keep the DCI as the head of the CIA.

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2 These advocates would not contact nor inform the subject of the potential surveillance about the proceedings. Instead, they would act as officers of the court, representing the legal position in opposition to the Justice Department's application for a FISA warrant.

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Budget Authority

The DCI already has authority to review and approve budgets, personneJ, and resources for virtually every aspect of the national intelligence program. Yet, despite this authority, the DCI still actually controls only about 15 to 20 percent of the actual intelligence budget. It is not surprising that as a result, he has been unable to provide necessary leadership within the Intelligence Community, as exemplified by DCI's inability to fully mobilize the Intelligence Community in response to his "declaration of war" on al Qaeda. The DCI has understood the terrorist danger as much as any human being could; yet he didn't have command of all the troops, so to speak, to get the job done. That's why the DCI needs the authority both to manage and oversee the execution of the Intelligence Community budgets.

The DCI as Head of the CIA

The report's recommendation to separate the positions of DCI and head of the CIA is likely to be counterproductive. A number of experts agree with this proposition. During the open hearings just completed in the intelligence committee Judge Webster, the former head of the CIA and the former head of the FBI, said, in reaction to the suggestion to split the DCI from the CIA: "I would strengthen the DCI. I would not have a head of the national intelligence unless that [head of] national intelligence was actually running something."

In his written testimony to the Committee, Anthony Lake, former National Security Advisor, also supported maintaining the CIA under DCI control. Furthermore, the 2001 Hart-Rudman Commission report took this position, as did the 104th Congress House Intelligence Committee staff report, which stated: "Indeed, the testimony of former DCIs and other former senior IC officials all concur that the DCI needs an agency 'of his own' -- i.e., the CIA -- if he is to have any real power within the IC."

At this stage, the operational authority vested in the head of the CIA comprises a substantial amount of the power of the DCI. Removal of that authority now would separate him from his

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operational base and significantly dilute the power of the DCI, at a time when it is not clear that the requisite budgetary authority will, in fact, be conferred upon the office of DCI.

OPEN-SOURCE INFORMATION

In another important area, the Intelligence Community needs to pay more attention to the collection and analysis of open-source information. This type of information needs to be examined and needs to be taken more seriously. We must remember that open-source information was used to warn investigators in 1999 that al-Qaeda terrorists might fly a hijacked airliner into American buildings. Library of Congress analyst, Rex Hudson, wrote a report for the National Security Council --based entirely on unclassified material --which noted the possibility of almost exactly the kind of attack that occurred on September 11th. Hudson concluded: "Suicide bombers belonging to al-Qaeda's Martyrdom Battalion could crash an aircraft packed with high explosives into the Pentagon, the headquarters of the CIA, or the White House."

The Intelligence Community is simply not accustomed to assessing the value of open sources nor is it used to integrating them into their work. In fact, the Intelligence Community is more inclined to use open-source material as a last resort, not as a primary source, no matter how compelling the information. This attitude needs to change, and the Community must re-evaluate how it prioritizes open- source material that ultimately can be of extraordinary value, either by itself or as a mechanism to refine or evaluate other intelligence.

REPORTS

1 am also concerned that the Intelligence Community is not being informed about a number of important intelligence issues because of delays in the issuance of requested reports. Part of the problem is that the Senate and House Intelligence Committees are asking for too many unnecessary reports. Compounding that, the Intelligence Community has been slow in the production of the reports, themselves, though in the recent past, the Community has started producing many of these required reports in a more timely fashion. Still a lag remains. To help

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remedy that, the Intelligence Committees should continue to discuss with the Intelligence Community the status of the currently requested reports and determine which ones are necessary, eliminating those report requests that are not absolutely essential and ensuring that the ones required do, in fact, get generated and issued to the Committees.

MULTI-LEVEL SECURITY CAPABILITY

One of the most significant problems examined during the open hearings was the lack of information sharing between agencies. In assessing that area of concern, the Intelligence Community needs to figure out how agencies and intelligence personnel can better share and disseminate important information, while still protecting that information from getting into the wrong hands. A relatively simple way to address this would be through the use of a technology known as "multi-level security" capability. Basically, the use of multi-level security allows computer users with different levels of security classification to get different levels of access to information contained and stored in a comprehensive intelligence database. In other words, database users would be able to access only the information in the database that their security clearances allow them to view.

This would allow the myriad intelligence agencies to safely combine all of their databases, including those containing the most sensitive data and make the entire combined database accessible to a wide range of intelligence and law enforcement personnel, without sacrificing security for the most highly classified data. For example, a detective in Cincinnati who notices unusual activity around city hall could do a search of the comprehensive Community-wide database for "city halls in Ohio" and come up with some non-classified FBI information about possible attacks on city halls around the state or in other states. He then also would get a notification from the system that there was more information about that topic, but that it was classified at a level above his clearance. At that point, he could go to his supervisor and begin the process of having that information sent to someone within the department who has the appropriate level of clearance. This would help resolve one of the many information-sharing problems facing the Intelligence Community.

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REFORMING HUMAN INTELLIGENCE COLLECTION (HUMINT)

U.S. Human Intelligence collection organizations are unable to penetrate organizations like Al Qaeda because they are not properly organized for the task and have become too risk averse to undertake the kind of dangerous operations required for success. A new organization must be built from the ground up as a small, agile, and adaptive organization with a corporate culture of taking prudent risks. It would have a limited list of targets: terrorists, proliferators, and "rogue states." Creating a new organization has the advantage of creating a capability to directly target organizations like Al Qaeda better than is possible today, yet without undermining the strengths of the existing HUMINT organizations.

A Broken Corporate Culture

With a few exceptions, the current structure of the HUMINT community remains based on the official cover system used during the Cold War to fight the largely static; Soviet threat. Official cover is when a clandestine intelligence officer appears to work as an employee of another U .s. government agency. Many of the Soviet officers and officials we were trying to recruit during the Cold War associated with U.S. government officials in the course of their normal duties, so it made sense to put our HUMINT collectors in roles where they were likely to encounter their targets in the course of their "ordinary" daily work. The problem is that while the foreign threat has changed since the end of the Cold War, too many U.S. clandestine HUMINT collectors still work under official cover. The work they do in this capacity is important, but it does not offer the full range of capabilities to go after targets such as proliferators or terrorist organizations like Al Qaeda that do not knowingly associate with U.S. government officials. Nobody openly associated with any element of the U.S. government is going to be able to get close to an organization like Al Qaeda, so an official cover is of little use against these targets. The best "platforms" for targeting groups like Al Qaeda are non-official cover operations, or NOC's. A non-official cover is when a clandestine officer appears to be a private citizen without any U.S. government affiliation, typically operating under the cover of a legitimate commercial enterprise.

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Clandestine human intelligence collection operations under non-official cover (NOC) are very difficult to detect and the U.S. Intelligence Community acknowledges that they are the best platform for working against targets like Al Qaeda. U.S. intelligence entities like the CIA's Directorate of Operations (CIA/DO) have been unable, however, to transform their organizations to employ fully the range of possibilities offered by NOC operations. The primary obstacle is a corporate culture problem -lighter covers (such as official cover) tend to "crowd out" deep covers (such as non-official cover). What this means is that in a clandestine human intelligence collection agency that starts out with a good balance of official and non-official covers, the agency will eventually phase out most of its NOC's in lieu of official cover operations. [3] The reason this happens is two fold: First, many clandestine officers prefer the lifestyle offered by the official cover assignments over NOC assignments, and second, supervisors prefer subordinates who are under official cover where they can be more easily managed.

Clandestine officers prefer official cover assignments because working as a NOC officer is a difficult life-style. NOC's are paid the same government salary as their colleagues under official cover, but they get few of the comforts available to those under official cover and none of the legal protections. NOC's have to spend most of their time abroad, and will not be able to meet and network with most of their colleagues in the Agency. Meanwhile, their peers under official cover can interact and network with other agency colleagues, leading to steady promotions and better assignments. Relative to official cover, non-official cover assignments also offer less prestige, safety and comfort, and involve a less family-friendly lifestyle. [4]

Not only do clandestine officers generally not want to serve as NOC's, but their managers do not want to use them because officers under official cover are much easier to manage than a NOC. A NOC requires much more elaborate and difficult operational security measures (also known as tradecraft). Another big reason managers do not like using officers under non-official cover is risk aversion: NOC officers are not protected by diplomatic immunity. It is one thing to have an official cover employee declared persona non grata and expelled from the country; it's quite another to have him arrested and shot. Official cover operations are too deeply entrenched in the

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3 Bruce Berkowitz, "Deep Cover," Hoover Digest, Fall, 2002.

4 Bruce Berkowitz, "Deep Cover, " Hoover Digest, Fall, 2002

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organizational structure, personnel system, and tradecraft of intelligence entities like CIA, and their organizations have developed incentives and procedures that make it hard to adopt NOC operations on a larger scale.

A Broken Cover System

The Central Intelligence Agency's Directorate of Operations' (CIA/DO) official cover system has been well known, both in and out of the agency, as a significant operational vulnerability for many years. Foreign intelligence services are all too familiar with the CIA 's official cover system, which suffers from the fact that it is not difficult for sophisticated observers to distinguish CIA officers from actual officers of other U.S. government agencies. The current system of official cover largely amounts to little more than a non-attribution system similar to that used by journalists in Washington, D.C.: it is clear who the intelligence officers are, but diplomatic manners usually preclude saying so. This system works for the bulk of CIA operations, which involve liaison contacts with foreign intelligence services and working with "walk-in" sources (in which the source approaches the agency, not vice versa). In both types of work, the CIA's sources know who they are dealing with and need to know where to go to find them, which makes official cover an excellent fit. This does not work, however, when trying to recruit hard targets such as members of Al Qaeda's inner circle, who do not associate with U.S. government officials.

The state of our non-official cover (NOC) system is no better. U.S. intelligence's NOC programs have been damaged by half-hearted execution of operational security measures and under-utilization by managers. The U.S. Intelligence Community is well aware of these significant problems but takes little action to fix them because effective cover is not critical to the way our HUMINT agencies currently do business. Too often content to work with foreign liaison intelligence services and accept walk-ins, HUMINT managers generally do not go after difficult targets, and thus feel they do not need the tools that an effective cover provides. Even beyond the limitations imposed by a system made up of mostly official cover assignments, the existing HUMINT agencies are further limited by a corporate culture that has become

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excessively risk-averse. For example, despite all the advantages of a career under official cover as compared to non-official cover, the average CIA/DO employee still doesn't spend a significant amount of time overseas. Only about 35 percent of CIA/DO employees have spent more than 3 out of the last 10 years overseas. This low ratio indicates that the wrong mindset now dominates what is supposed to be an overseas clandestine service.

The Solution -- A New OSS

The answer to the problems described above is to create an environment in which the aggressive non-official cover operations we need to be conducting are not "crowded out" by official cover operations. A small agile and adaptive organization should be built, along the lines of the Office of Strategic Services (OSS) in World War II, chartered with a corporate culture of taking prudent risks, and operating exclusively from non-official cover (NOC) platforms. This would be a small organization that would augment the existing HUMINT agencies and work against a limited list of targets: terrorists, proliferators and "rogue states." This organization could be created within an existing HUMINT agency like the CIA or the Defense HUMINT Service (DHS), but creating it as an independent agency would help avoid the possibility that its aggressive non-official cover operations would be "crowded out" by the official cover operations being conducted in these agencies. Creating an independent agency would also avoid the possibility that it would be held back by the culture of risk aversion that exists in agencies like the CIA. and the DHS. Another possibility is to create the organization as an independent agency of the Department of Defense.

• Creating a new organization has the advantage of creating a capability to directly target organizations like Al Qaeda without undermining the strengths of the existing HUMINT organizations. For example, two of CIA/DO's strengths are their work with foreign liaison intelligence services and taking "walk in" sources. These are important missions that would not be compatible with a new organization operating exclusively under non- official covers. Thus, there is both room for, and a need for, both CIA/DO and a new organization that operates exclusively from non-official cover collection platforms.

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• This new organization should use bolder, more innovative non-official covers than have been typically employed by entities like CIA/DO, which typically operates under the cover of a commercial enterprise.
• To be successful, during its initial build-up this organization may have to have full access to CIA, the Defense HUMINT Service (DHS) and FBI data about both their employees and sources to select candidates to work in and for the new agency, and the authority to "grab" sources and interview employees for this new high priority program. In terms of the terrorism target, FBI's many low level sources and contacts in the U.S. and international Islamic community may be most productive.
• The new agency would also need to have a significant level of independence in order to avoid being strangled at birth. The agency would have to keep selected personnel in the other HUMINT agencies informed of its activities but it would have primacy in matters concerning terrorism, proliferation or rogue states and would not need to seek CIA approval to recruit new sources.
• Operating under a corporate culture of taking prudent risks, particularly when working under non-official cover could subject employees to significant danger. This is, however, a necessary risk in light of the clear and present threat posed by terrorism and proliferation. Our elite military special-forces units, such as the U.S. Navy Seals, sustain injuries and deaths every year as a result of training alone, not to mention casualties sustained in combat. These injuries and deaths aren't the result of reckless behavior -our special forces are the best in the world because they train like they fight. These casualties are the result of prudent risks that were willingly accepted and clearly understood by everyone involved, in order to produce the best special-forces that will be well trained when we need them. The work of this new HUMINT agency would be no less important and we should be willing to accept a similar level of risk.
• This new organization should be chartered and resourced to leverage advanced technologies to aid all aspects of their work. Advanced equipment and software can allow officers to covertly communicate no matter where their work takes them and support their non-official covers over decades. Such technology can also be used to ensure more timely delivery of intelligence to consumers such as military commanders. Finally, the new organization should work closely with the National Security Agency and other organizations to use advanced technology to conduct technical penetrations of targets like Al Qaeda.

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• This new agency should endeavor to learn from both the successes and failures of Israeli HUMINT efforts. Their aggressive tactics and inventive use of non-official covers may serve as a useful guide for this new agency. The Israelis have had notable successes in penetrating terrorist organizations and we should learn from their efforts. The new agency may also want to consider some level of partnership with the Israeli HUMINT services, in light of the amount of overlap in the terrorism and proliferation threats to both our national interests.
• It should be acknowledged at the outset that the kind of aggressive, non-official cover operations described above would take a toll on the officers who conduct them and that many of them could experience "burn out" in as few as five to ten years. The agency should be structured from the outset to accommodate this high turnover rate and provide pension, disability and placement services for officers who leave the service before reaching civil service retirement age. It may be appropriate in some cases to place some of these officers under "lighter" cover at agencies like CIA/DO.

A Longer Term Approach

The current HUMINT system is handicapped by a need to conduct operations that can deliver results within the span of an officer's three year tour in order to benefit the careers of both the HUMINT collector and his or her chain of command. We must create in our Intelligence Community a culture and capability that allows the longer-term, unorthodox approaches to human intelligence collection required to combat organizations like Al Qaeda. Rather than the current HUMINT system's typical three-year assignment under official cover and focused on a

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geographical location, officers would be allowed to spend much longer periods of time moving from country to country at their own discretion to build up and reinforce their bone fides to support a non-official cover.

• A new HUMINT organization, like the above-proposed organization, could give its officers the autonomy to invest the years required and take the necessary risks to infiltrate organizations like Al Qaeda. For example, an officer operating under non-official cover. would be allowed to attend a radical mosque in the United States and over a period of months and years develop the range of contacts that would allow him to travel abroad, receive training in a radical Islamic terrorist training camp and infiltrate organizations like Al Qaeda. Such an assignment would be undertaken with the understanding that it would not yield results for months or even years. The current HUMINT system is averse to such an assignment that would involve allowing an officer to be out of contact with his chain of command for weeks and months at a time, and leave him continually exposed to grave danger in the course of the assignment.

U.S. clandestine human intelligence entities like the Central Intelligence Agency's Directorate of Operations (CIA/DO) themselves admit that they are not able to penetrate organizations like Al Qaeda. This failure results from their reliance on an official cover system, which does not allow them to get close to Al Qaeda operatives. Even if entities like the CIA/DO were able to build a substantial non-official cover capability, it would soon be "crowded out" by lighter cover operations, like official cover operations, because the corporate culture of these agencies has grown comfortable with the advantages of life under official cover. A new independent organization, like the one proposed above, must be built from scratch in order to create a culture in which aggressive, non-official cover operations can flourish and not be "crowded out." With this new organization focusing on aggressive non-official cover operations, the work that can be done from official cover, like liaison with foreign intelligence services and handling "walk-ins", would be left to existing entities like the CIA/DO that have expertise in this kind of work.

Such a new NOC organization, if created independent of existing HUMINT collection agencies like the CIA and operating in the "black" world, may also benefit from being removed from the

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media spotlight and the politics that consume agencies like the CIA on a daily basis. A bold venture like the new organization proposed above will require the latitude to learn by trial and error as it proceeds into largely uncharted territory. The message must be delivered loud and clear that it is acceptable to fail on the way to success. Oversight of this new entity by Congress and the Executive Branch, while ensuring that the agency operates within the law, also will need to focus on making sure that the agency remains aggressive and does not shy from taking prudent risks in order to ensure that a culture of risk aversion does not develop. A new independent clandestine HUMINT agency may be the fresh start we need to break the pattern of failure that has prevented us penetrating groups like Al Qaeda.

CONCLUSION

In conclusion, I thank the Chairs of the Joint Committee for their leadership and work over the past several months, as we have reviewed and studied vast amounts of information regarding the September 1 Ith terrorist attacks and the state of the Intelligence Community. I also want to thank my fellow Senate and House Intelligence Committee colleagues and staffs, and the Joint Investigative staff for the countless hours spent on this inquiry.

Our nation's security -- the safety and protection of our loved ones -- is directly linked to the quality of the intelligence gathered and analyzed by the Community. Good intelligence is what allows us to find the terrorists before they find us. That's what good intelligence can do -- and reforming our methods of collecting, analyzing, and disseminating good intelligence is our aim is in these recommendations and this report.

We must realize, though, that as this joint inquiry ends, our real work, as members of the House and Senate Intelligence Committees, just begins. There are many unresolved issues and areas which time did not permit the Joint Committee to fully and thoroughly investigate. Furthermore, it is incumbent upon us, as Intelligence Committee members, and it is incumbent upon the entire Congress and the President to act on the report's recommendations. We must not let this report sit idle. We need to continue this critical national debate, even as the next commission begins its work. We need to continue to hold hearings. We need to introduce legislation that can help

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remedy the shortfalls we have identified throughout this investigative process. We need to be committed to an on-going, continuous, sustained effort to reform and fully fund the Intelligence Community. As such, the issuance of this report must be viewed as a beginning -- not an end.

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