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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
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)
The panel recognizes that the creation of this new entity, the NCTC, cannot happen over night, nonetheless, its creation should begin immediately. Some may argue that we should not attempt to make this change in the midst of the “war on terrorism." But that war may continue for many years, and the danger now posed by terrorists underscores the need for moving ahead on an urgent basis. In the near term, the FBI will continue to have FISA and other domestic collection responsibilities. Deliberate and thoughtful planning will be required in order to ensure continuity and to transfer effectively and as seamlessly as possible the capabilities and functions required for the NCTC. But, to underline the point, the NCTC should be established right away.”
Panel Chairman Jim Gilmore filed the following statement, in which he was joined by Panel Member Ellen Gordon, concurring in the recommendation with reservations: "The Commission has devoted much time to the discussion of a new agency to collect information on international terrorist activities inside the U.S. My approach has been to maintain these functions within the FBI, and to build upon their considerable structures, sources and resources to upgrade and improve this function. After great discussion and testimony, the Commission has decided to recommend the creation of a new agency. I will support this recommendation, but only with the oversight provisions and legal requirements contained and described in the report, to ensure no diminution of the civil liberties of the People of the United States." Panel Member Jim Greenleaf filed the following dissent: “I am in favor of the creation of the NCTC but only for the analytical 'fusion' function. I am opposed to the creation of an independent organization within the NCTC that would collect intelligence and other information on international terrorists activities inside the United States. “I believe that the FBI is fully capable of collecting the needed information in an effective, efficient, and lawful manner. The Bureau is like most bureaucracies and change comes slowly. However, knowing the caliber and dedication of the men and woman in the organization, they can meet these new challenges and make the appropriate adjustments to counter the terrorist threat. "It will take years for a new organization to be created and become an effective resource in the fight against terrorism. The FBI already has agents in the field with the proper contacts to collect much of the needed intelligence. More certainly needs to be done. I am concerned about creating an organization that places detection and prevention ahead of prosecution. The FBI culture as a law enforcement agency provides a backdrop and check and balance against any abuse of civil liberties. “Terrorism is a crime and needs to be addressed in that fashion following the current AG Guidelines and the Constitution. An organization designed to detect and prevent will not by definition be as sensitive and cautious in carrying out their mandate to protect civil liberties. I fully understand the restrictions that will be placed on the new agency, but doubt they can do the job required of them by operating in a very murky area of law and governmental guidelines. The issue of "secret police" becomes more of a factor for the new organization rather then with the FBI. “Although the new organization would only collect intelligence on international terrorism threats, I find it difficult to visualize how they would carry out that mandate without involving domestic persons and organizations, since many cases involve both domestic subjects as well as international subjects. Many of the cases would evolve into complex relationships between domestic and international people and organizations, thus creating a difficult problem of jurisdiction and further concerns about 'stovepiping between agencies. "I am concerned about any agency that doesn't have to be held accountable for their actions by not having to defend their investigation by use of 'sanctions'. The ultimate arrest and prosecution of a subject acts as a logical process for the organization to demonstrate that they have operated within the law in conducting their business. Decisions made as to what course of action should be followed in order to detect and prevent' may very well result in a situation where the subject or subjects could not be prosecuted, thereby leaving the system with the question of what to do with them once the case becomes public knowledge. Certainly the prevention of a terrorist attack is of the highest priority, but what do we sacrifice in the process? (continued)