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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.2

2 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]

The panel also recognizes that other agencies may continue to require some limited analytical capability. The NCTC will be responsible for strategic level intelligence analysis, and for creating intelligence products that will inform operational decisions. Individual agencies, such as the FBI and the new DHS when formed, may need some internal analytical capability to take NCTC product and convert it from the operational level into tactical, actionable intelligence. It will be necessary, however, to ensure that other agencies do not seek to duplicate the NCTC intelligence analytical fusion function, as has been the case in certain other historical contexts within the Intelligence Community. The President will have to ensure that the NCTC is the primary fusion center for all domestic intelligence. It must not be allowed to become a "coordinator of coordinators."

3

The panel is aware of other recent proposals that appear to be designed to address the collection problem. One was made by “The Task Force on National Security in the Information Age" of the Markle Foundation. That proposal would place certain information collection functions in the proposed DHS, but would leave domestic intelligence collection with the FBI. We believe that that proposal does not go far enough in resolving the problem.

4

We are also aware of proposals similar to ours that are being made by U.S. Senators John Edwards (NC) and Bob Graham (FL). The major distinction is that those proposals, while creating a separate collection entity, would leave that entity in the Department of Justice. For reasons stated above, we believe that the new entity must stand alone and clearly separated from law enforcement.

Apparently, the Executive Branch is also considering some alternative to address the problem, reportedly including the establishment of something like an American version of the British MIS. The panel has, however, avoided any comparison between our proposal and MI5. Our Constitution, our laws, our history, and our culture require a United States solution.

“I would prefer to see the FBI given additional resources especially in the area of computer support. They should place an increased emphasis on building a robust analytical capability to do a better job of recognizing and connecting the elusive dots' so they can provide valuable input to the NCTC. The AG Guidelines should also be revisited with the view of making them more `user-friendly' and identify areas where lines can be drawn clearly and distinctly for aggressive investigative activity. Agents shouldn't have to worry about interpreting the rules. They need to know what is expected of them so they can go forward with an aggressive intelligence collecting process that is carried out in a way the American people would expect, and in a manner that the Constitution demands."

Protecting America's Freedom in the Information Age. New York: Markle Foundation, October 2002. 4-Spies in the Ointment? Experts Debate Whether U.S. Should Launch Domestic Espionage Agency," CQ Homeland Security bulletin, Congressional Quarterly. Oct. 14, 2002. 5 «U.S. may set up MIS-style spy agency in security shake-up." The Telegraph (U.K), October 31, 2002.

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· Would execute FISA and other foreign terrorist legal authorities inside the United States

Would only effect persons with connections to foreign terrorists or terrorist entities, not purely domestic organizations or persons

• Would have no responsibility for non-terrorism-related criminal activity

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• Would not have arrest powers or other "sanction" authority

Would be subject to requirements and restrictions in FISA (including application to the Foreign Intelligence Surveillance Court) and in the AG Guidelines

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Collection Function-Summary of Key Points

Would not create a domestic intelligence function; that function is already being performed by the FBI

Would transfer that function to an entity with a detection and prevention, not law enforcement, focus and culture

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Would not require new or expanded authority

Would not have Title III wiretap authority

Would be monitored by a steering committee and staff verification function (OIPR)

Would likely provide better civil rights and liberties protection

• Would have direct and significant relationships with States, localities, and the private sector

The Importance of Threat and Vulnerability Assessments

The National Strategy for Homeland Security appropriately notes the requirement for both strategic and tactical analysis and vulnerability assessments, and designates various lead or co-lead agencies for those functions. The proposed DHS is only responsible for

disseminating "real time actionable" information to others. It apparently has sole responsibility only for vulnerability assessments for critical infrastructure protection. There is no indication that strategic assessments of threats inside the U.S. will receive dissemination to state and local agencies.

Recommendation: That the President direct that the NCTC produce

continuing, comprehensive “strategic" assessments of threats inside the United States, to be provided to policymakers at all levels, to help ensure appropriate planning and allocation of preparedness and response resources.

The Role of the Department of Homeland Security in Intelligence Functions

It appears that the new DHS will have no authority for intelligence collection, limited capability for intelligence analysis, and significant responsibility for threat warnings.

Recommendations: That the Congress and the President ensure that the DHS has the authority to levy direct intelligence requirements on the Intelligence Community for the collection or additional analysis of intelligence of potential threats inside the United States to aid in the execution of its specific responsibilities in the area of critical infrastructure protection vulnerability assessments.

That the Congress and the President ensure that the DHS has robust capability for combining threat information generated by the Intelligence Community and the NCTC with vulnerability information the Department generates in cooperation with the private sector to provide comprehensive and continuing assessments on potential risks to U.S. critical infrastructure.

These capabilities will be important not only for the DHS specified missions but also for the DHS role in the NCTC.

Managing Operations

The National Strategy for Homeland Security has eliminated the distinction between "crisis” and “consequence” management. This will help remove certain ambiguities in the responsibilities and authority for planning and response. The creation of an overarching National Incident Response Plan to replace the Federal Response Plan and numerous other federal plans can also clarify responsibilities. With the merger of USCS, USCG, and INS (and others) into the new DHS, that agency will have control over some but not all Federal law enforcement capability. The National Strategy provides that the Secretary of DHS will have the responsibility for “coordination and integration" of Federal, state, local, and private” activities for critical infrastructure protection (CIP). But it does not provide any vision about the extent to which DHS will be “in charge” of executing a response during or after an attack on some CIP sector; nor does it specify which federal agency is in charge for the federal sector for other types of attacks, especially a biological one.

Recommendations: That the President and the Congress clearly define the responsibilities of DHS and other federal entities before, during, and after an attack has occurred, especially any authority for directing the activities of other federal agencies.

That situation is especially problematic when it comes to a bioterrorism attack. No one in the federal structure can currently identify who is or after DHS is formed will be in charge in the event of a biological attack.

Recommendation: That the President specifically designate the DHS as the Lead Federal Agency for response to a bioterrorism attack, and specify its responsibilities and authority before, during, and after an attack; and designate the DHHS as the Principal Supporting Agency to DHS to provide

technical support and provide the interface with State and local public health entities and related private sector organizations.

Interagency Coordination

There are numerous federal interagency coordination structures and several combined federal/state/local structures. As examples of the later, the Joint Terrorism Tasks Forces (JTTF) (FBI) will remain with the FBI and a new National ITTF (FBI) will be formed. But JTTFs are organized differently in various jurisdictions. And according to the national strategy, the responsibilities (for intelligence/information sharing with state and local law enforcement) of the U.S. Attorney Antiterrorism Task Forces (ATTFs) will shift to the DHS. The proliferation of such mechanisms will likely cause unnecessary duplication of effort. More importantly, the National Strategy calls on the Governors of the several states “to establish a single Homeland Security Task Force...to serve as (the) primary coordinating body with the federal government.” But there is no similar single mechanism at the federal end.

Recommendation: That the Assistant to the President for Homeland Security review and recommend to the President, and that the President direct, a restructuring of interagency mechanisms to ensure better coordination within the federal government, and with states, localities, and the private sector, to avoid confusion and to reduce unnecessary expenditure of limited resources at all levels.

Legal Authorities

With the formation of the new DHS and other initiatives envisioned in the National Strategy, various statutory, regulatory, and other authorities (e.g., PDDs 37, 62, and 63) will be directly implicated. The Strategy appropriately calls for a review of legal authority for use of the military domestically. But there are other legal and regulatory issues that must be addressed, not the least of which are quarantine, isolation, mandatory vaccinations, and other prescriptive measures that may be called for in the event of biological attack.

Recommendation: That the President direct the Attorney General to conduct a thorough review of applicable laws and regulations and recommend legislative changes before the opening of the next Congress.

The Congress

The Congress is still poorly organized to address issues involving homeland security in a cohesive way. The House recently took the bold, necessary, but unfortunately only

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