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STRATEGY AND STRUCTURE RECOMMENDATIONS
Intelligence Collection, Analysis, and Dissemination
Dealing with the Terrorists Among Us
It is now clear, from contemporaneous reports and recent arrests, that potential terrorists are inside the United States. Many of them may have received training in foreign camps. They may seek to carry out attacks against U.S. citizens and property. This new aspect of the terrorist threat requires a new approach in two key areas:
The need for a focused and comprehensive analysis of threats of potential
The U.S. government's organization reflects an artificial distinction between "foreign” and "domestic” terrorist threats. The new threat environment, where those distinctions are increasingly blurred, requires a more robust and focused approach to all aspects of intelligence - collection, analysis and dissemination – whether it is collected at home or abroad. And this must be done in a way that respects American civil rights and liberties.
The CIA, FBI, other members of the Intelligence Community, and the proposed Department of Homeland Security (DHS) will all have roles for intelligence-related functions. DHS will have responsibility only for vulnerability assessments for critical infrastructure protection, as well as for providing nationwide alerts. As things now stand, the FBI and CIA will each continue to have its own domain for terrorism intelligence with only marginal direct coordination between those entities, and no direct, formal relationship with the proposed DHS. Yet, large, multi-mission agencies like the FBI and the CIA are incapable of changing direction quickly enough, and should not be tasked further, to respond to current dangers. There is a risk of duplication, overlap, and bureaucratic "stovepiping" in this vital area. So a consolidation of certain activities is required.
Recommendation: That the President direct the establishment of a National
That entity should be a "stand-alone" organization outside of the FBI, CIA, or the proposed DHS. The objective is to consolidate in one entity the analysis of foreigncollected and domestically-collected intelligence and information on international terrorists and terrorist organizations threatening attacks against the United States. This would be accomplished by permanently transferring (not "detailing") analysts currently performing those functions within the CIA (i.e., the core analytic capability within the CIA's Counter Terrorism Center), the FBI (the newly-expanded analytical section), other appropriate
members of the Intelligence Community, representation from DHS (when formed), and supplementing with new hires as necessary.
The NCTC should be an Independent Agency of the Federal Executive Branch, similar to the standing of the Environmental Protection Agency, the Federal Emergency Management Agency, NASA, or the General Services Administration. The new entity should be a full member of the U.S. Intelligence Community. The agency head should be appointed by the President with the advice and consent of the U.S. Senate.
Advantages and Disadvantages of an Independent Agency
The members of the Advisory Panel discussed at length whether the NCTC should be placed within an existing department or agency or within the proposed Department of Homeland Security.
The panel discounted its placement in the Central Intelligence Agency for legal, policy, perception, and cultural reasons. The panel discussed and rejected the notion that this entity could be part of the FBI or an agency within the Department of Justice. Panel members felt that such placement would cause the entity to have too much law enforcement focus—building cases for prosecution-rather than detection and prevention.
The panel considered the prospect of placing the entity in the proposed Department of Homeland Security (DHS). While many panel members agree that such placement is a viable option, that alternative was eventually rejected for several reasons. First and most important, DHS will not be the only "customer of the products of the NCTC. Other key Federal entities_notably the Department of Justice and its agencies, the Department of Health and Human Services, the Department of Defense, the Department of State, and the Department of Agriculture-will all require significant intelligence products from the NCTC. States, localities, and elements of the private sector will all be considerable consumers of NCTC products. Moreover, it would be viewed by other Federal agencies as being more responsive to DHS activities and priorities at the expense of other agencies' requirements. As a DHS entity, the NCTC would have to compete for resources with other DHS functions.
The panel concluded that a stand-alone entity, with its own funding, would be more likely to set priorities for its activities more objectively—an "honest broker" for competing requirements—and would not be viewed as tied to any single agency's mission.
The disadvantage to a stand-alone agency is that may simply create more bureaucracy. That argument will be neither more nor less valid than the suggestion that DHS will create new bureaucracy. Moving existing resources and responsibilities from the FBI and from other entities in the Intelligence Community will minimize any real growth of government. The advantages gained in this structure outweigh any such impact, in the panel's view.
The NCTC would be responsible for the fusion of intelligence, from all sources, foreign and domestic, on potential terrorist attacks inside the United States. It would be responsible for the production and dissemination of analytical products to all appropriate "customers,” including the Departments of Justice, Homeland Security, State, Health and Human Services, Agriculture, and Defense, and in coordination with those agencies, to designated and cleared officials in States, localities, and the private sector. It would have the authority to levy direct intelligence requirements on the Intelligence Community for the collection of intelligence on potential threats inside the United States. (See further discussion on collection below.)
The NCTC should be the entity that manages the "Collaborative Classified Enterprise" outlined in the National Strategy for Homeland Security, which links Federal, State, and local efforts in analyzing the activities of persons who have links to foreign states or to foreign terrorist organizations. The intelligence and information sharing functions currently being developed through the U.S. Attorney Antiterrorism Task Forces and slated to be moved to the proposed DHS should instead be imbedded in the NCTC.
The Critical Role of States, Localities, and the Private Sector
State and local entities, as well as key segments of the private sector,
It is clear that the Federal government is far from perfecting a system of sharing national security intelligence and other information, developed at the Federal level, with States,
localities, and certain segments of the private sector. While important progress has been made, the flow of intelligence and information is still not completely a "two-way street." The prevailing view continues to be that the “Feds” like to receive information but are too reticent to share completely. Not all officials at every level of government need to be cleared for classified information. The Federal government must do a better job of designating “trusted agents” at the State and local level and in the private sector, and move forward with clearing those trusted agents—at Federal expense. This should not be a case of the Federal government allowing those agents access and then giving them the "privilege” of paying for it. This is a national requirement--not Federal on the one hand, and States, localities and the private sector on the other. Additional Federal resources are required, and soon, to make this process work.
Improving the Collection Function
Recommendation: That the collection of intelligence and other
This collection function would be functionally separate from, but physically co-located with, the analytical fusion component.
The Panel makes this recommendation 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. We commend the FBI leadership for its efforts to make these changes. But the Bureau's long standing tradition and organizational culture persuade us that, even with the best of intentions, the FBI cannot soon be made over into an organization dedicated to detecting and preventing attacks rather than one dedicated to punishing them.
Second, even if the FBI could be remade, the Panel believes it important to separate the intelligence collection function from the law enforcement function to avoid the impression that the U.S. is establishing a kind of “secret police.”
The collection component of the NCTC should be based on the concept of the Foreign Terrorist Tracking Task Force created by the Attorney General in the fall of 2002— multiple agency representation and robust technological capabilities—but with authority to collect intelligence and information within the United States. It would be authorized to collect intelligence only on international terrorism threats. It could not lawfully collect any other intelligence. Counter terrorism intelligence collection outside the United States would continue to be accomplished by the CIA, NSA, and other foreign IC components.
The NCTC would have no “sanction" authority. It would not have arrest powers that authority will continue to rest with the FBI, other Federal law enforcement agencies, and state and local law enforcement. The NCTC would have no authority to engage in
deportations or other actions with respect to immigration issues, to seize the assets of foreign terrorists or their supporters, or to conduct any other punitive activities against persons suspected of being terrorists or supporters of terrorism. The NCTC will provide information that can be "actionable” to those agencies that do have the authority to take action.
This new collection component of the NCTC would operate under significant judicial, policy, and administrative restraints. It will be subject to the requirements of the Foreign Intelligence Surveillance Act (FISA)' and the Attorney General's Guidelines for terrorism investigations. This component would be required to seek legal authority from the Foreign Intelligence Surveillance Court (FISC) for intrusive (surveillance or search) activities. Moreover, the NCTC would not require any expansion of the authority under FISA or the conditions and strictures that apply thereto, or additional authority beyond that contained in the USA PATRIOT Act. The FBI would continue to have responsibility for purely domestic terrorist organizations and for non-terrorism related organized crime. Title III wiretap responsibilities would remain with the FBI for criminal activities. To ensure that the NCTC remained within these guidelines, a Policy and Program Steering Committee for the new agency should be established, comprised of the new agency's director, the Director of Central Intelligence, the Attorney General, and the new Secretary of DHS (when appointed and confirmed). The functions of the Office of Intelligence and Policy Review currently in DoJ would move to the new NCTC to staff this Steering Committee, to assist in ensuring that the entity adheres to all relevant constitutional, statutory, regulatory, and policy requirements, and to assist in coordinating the activities of the new entity with the FBI, and other law enforcement agencies.
In addition, there could be more focused and effective Congressional oversight of the domestic collection and analysis functions. Currently, the oversight of the FBI's FISA and other domestic intelligence activities is split between the Judiciary and Intelligence committees in each House of Congress. Creation of the NCTC would clearly place the primary responsibility for oversight of that agency under the Senate Select Committee on Intelligence and the House Permanent Select Committee on Intelligence. Such a structure and improved oversight would likely provide an even better mechanism for protecting civil rights and liberties than do current structure and processes. For that reason, the panel makes the following, related
Recommendation: That the Congress ensure that oversight of the NCTC be concentrated in the intelligence committee in each House
How will the NCTC enhance civil rights protections?
50 U.S. Code, Chapter 36 (50 USC Sections 1801-1863) (PL 105-511, October 25, 1978)