MILNET Brief
  Progress on the 9-11 Commission Recommendations, 10/18/2006
"Determine, with leadership from the President, guidelines for gathering and sharing information in the new security systems that are needed, guidelines that integrate safeguards for privacy and other essential liberties."

"...ensure adequate supervision of how they are used, including a new board to oversee the implementation of the guidelines needed for gathering and sharing information in these new security systems "

- 9-11 Commission Recommendations 1


NID    NCTC    NIC    Congressional Oversight    Summary



[BRIEFING]:
The 9-11 Commission final report calls out a number of recommendations written in language that, well...to be polite are far from being implement able, let alone specific enough to do anything other than create debate.  Debate is fine, however, for many, the recommendations fall very short of the necessary crispness to motivate Congress or the President to "get things done" and in a timely fashion.

Having said that, a number of the recommendations are precise enough and we set out to discover just how much of what was recommended has actually been achieved. 

In this election cycle, there have been a number of accusations that the Bush administration has not gone far enough to implement the 9-11 recommendations.  We decided to verify or debunk that claim, focusing on the key arena in our estimation, Intelligence and which, not coincidentally, is where the 9-11 Commission recommendation language is not as ambigious.

In our research, we found that a number of the recommendations built upon events already underway that had either been classified at the time of the 9-11 Commission report and are now visible to the public or simply weren't being talked about so as to protect them during their early stages.  Some aspects of actual operational methodology (for instance within the NCTC itself) remain highly classified.  This makes our analysis a little more difficult 

[ANALYSIS]:
We note that much of the NCTC implementation had been tested quite thoroughly by the TTIC within Homeland Security and this was created first by Executive Order in the days following the 9-11 attacks.  In fact, several Executive Orders are ratified by specific callout in legislation implemented later as U.S. law.  And while Congress is happy to take credit for them, in several cases the law has followed the regulations created in response to Executive Order word for word. This is not an argument we wish to document at this time -- suffice to say the evidence is there and those who would complain the administration has done nothing or little to implement the 9-11 Commission recommendations need to do a little homework and look at the dates and times of implementation, and compare regulations created well before the 9-11 Commission even began their work.  Nuff said.

As in our analysis of the final report of the 9-11 Commission 2, we will look at three areas first, the NID -- National Intelligence Director, the NCTC -- National Counter Terrorism Center, and the NIC -- National Intelligence Centers.  And like our earlier analysis of the recommendations we will look at Congressional Oversight, a key issue in the 9-11 Commission Findings.

We should also note that just because the 9-11 Commission recommended a particular action, it does not mean it was a) a great idea, or b) could be implemented.  This is especially true where idealism suffers from reality or language gets in the way of implementation.  Many of the recommendations suffer from both problems and therefore are not likely to find their way into legislation, Presidential Directive, or regulation.

[OPINION]:
Thus when we offer our opinion as to how well our national leadership has performed vis-a-vis a recommendation from the 9-11 Commission, we may score higher due to our interpretation of the acceptability or viability of a specific recommendation that was not taken to heart.  Any Commission who believes their recommendations are fully implementable or even deserve 100% implementation is both arrogant and dangerous.  In fact, in this analysis we look specifically at the Intelligence arena recommendations, ignoring any other legislative embellishments made by the Commission.

One more point.   As we pointed out earlier, prior to the release of the 9-11 Commission final report, a large number of immediate actions took place, many within the newly created Department of Homeland Security.  While this giant organization is still working out how to operate in this era of increased terrorist activity, it could be said that the reorganization has done an adequate job of consolidating all the operational organizations involved in homeland security and thus makes the job of reforming the intelligence community that much easier. 

[ANALYSIS]:
And it should be noted that Homeland Security was created by Executive Order and later ratified with few changes by Congress at a much later time, creating the Department of Homeland Security.  This was an especially bi-partisan effort with his honor Senator Joe Lieberman crossing the aisle to do magnificant work  We would also like to thank Tom Ridge for shepherding that organization into existence -- he did a remarkable job and did not receive nearly enough acclaim when he finally left the position of Secretary of the Department of Homeland Security. A job well done, and a sacrifice made at a time when our country really needed a man of his caliber to step up and get it done.  Thanks Joe and Tom for being REAL patriots and statesmen.


NID

The 9-11 Commission made the following recommendations as to the National Intelligence Director:

The NID would be the top intelligence official in the U.S. and would be responsible to:
  1. Oversee National Intelligence Centers which would include counterterrorism and non-proliferation among others,
  2. Oversee the agencies that contribute to the national intelligence programs -- setting standards for personnel and information technology, among other things.
  3. The NID should be in the Executive branch reporting directly to the President, but confirmed by the Senate.
  4. The NID should have three "dual hatted" Deputies:
  5. The NID should be able to hire and fire his deputies, and have an appropriated budget for his office and operations and set personnel and information technology policies across the IC.
To check the progress of this item, we looked at actions by the U.S. President and Congress.  First, Congress and the Executive Branch negotiated for two years on the details for reformation of the Intelligence Community. The result was that On December 17, 2004, President Bush signed into effect public law 108-458, the "Intelligence Reform and Terrorist Prevention Act of 2004" 3 which implements most of the 9/11 commission recommendations for the Intelligence Community.  President Bush appointed John Negroponte to become the first NID and shortly thereafter Congress confirmed Negroponte in the role.

Our analysis of the new law indicates that our national leadership achieved 4 out of 5 of the 9-11 recommendations vis-a-vis the NID:
  1. Oversee National Intelligence Centers which would include counterterrorism and non-proliferation among others,
  2. Oversee the agencies that contribute to the national intelligence programs -- setting standards for personnel and information technology, among other things.
  3. The NID should be in the Executive branch reporting directly to the President, but confirmed by the Senate.
  4. The NID should be able to hire and fire his deputies, and have an appropriated budget for his office and operations and set personnel and information technology policies across the IC.
Left out of the legislation was the idea of dual hatting Deputies, although the legislation DID name a position as deputy to the NID, and Negroponte quickly filled the spot with an experienced intelligence community warrior , USAF Lt. General Michael Hayden 4 a former director of the NSA.  Hayden is the highest ranking intelligence officer in the military and now serves as  the Director of the CIA after being the first Principal Deputy Director of National Intelligence.  Hayden was succeeded as Principal Deputy by Richard Burgess, Jr. 9

Our "score" for the President and Congress is 100%, due to our analysis that a cadre of dual hatting deputies was a bureaucratic nightmare that calmer heads rejected in favor of realistic management efforts. 


NCTC

In the 9-11 Commission recommendations, the NCTC was depicted as follows:
  1. Implement the NCTC in a "Joint" fashion similar to DoD's unified command structure, unifying joint intelligence functions in the IC (Intelligence Community).
  2. Build on the existing Terrorist Threat Integration Center (Department of Homeland Security), integrating all such operations in the U.S. and tasking both internal and external intelligence requirements.
  3. The NCTC should perform operational planning and have the authority to assign lead agencies to actually execute those plans.
  4. The director of the NCTC would be under the Executive branch,  and be confirmed by the Senate and have the rank of a cabinet department, reporting to the National Intelligence Director.
  5. The NCTC would track implementation of plans, influencing budgets and leaders of counterterrorism arms of CIA, FBI, DoD, and DoHS.
  6. The NCTC will not make policy, direction and policy determined by the National Security Council on behalf of the President.
Our analysis of the NCTC is hampered by that classified curtain mentioned earlier.  However, the Intelligence Reform and Terrorist Prevention Act of 2004 does spell out the NCTC responsibilities and indeed modifies the National Security Act of 1947 by adding the specific officers and responsibilities of the NCTC to the U.S. Intelligence Community:

"Sec 119 (a) Establishment of Center.  There is within the Office of the National Intelligence Director a National Counterterrorism Center.
(b) Director of National Counterterrorism Center -- 1) There is a Director of the National Counterterrorism Center, who shall be the head of the National Counterterrorism Center, and who shall be appointed by the President, by and with the advice and consent of the Senate...."
The legislation goes on to specifically assign responsibility for Counterterrorism within the center, adding the exacting detail the 9-11 Commission recommendations lacked.  For instance, the legislation clearly calls out that the NCTC should NOT actually direct the actual operations of the agencies assigned to a task.  This is critical, allowing the operational expertise of the agencies to remain untouched.

It should be noted here that many critics of the legislation argued the new law would provide for increased and uncontrolled domestic spying on American citizens.  The reverse is true.
"(d) PRIMARY MISSIONS -- The Primary Missions of the National Counterterrorism Center shall be as follows:
(1)  To serve as the primary organization within the United States Government for analyzing and integrating all intelligence possessed or acquired by the United States Government pertaining to terrorism and counterterrorism, excepting intelligence pertaining exclusively to domestic terrorists and domestic counterterrorism..."
Later in the legislation, it is made clear that the NCTC can receive domestic counterterroism information, making it clear it is not responsible as the lead agency for collection and analyzing domestic terrorism, but has the benefit of receiving any domestic counterterrorism information it needs to integrate that info into the overall counterterrorism picture.

The legislation creates a Director of Intelligence within the NCTC and limits that individuals power by giving him full control of: intelligence gathering, however, specifically limits his ability to collect domestically:
"[Sec 119] (i) DIRECTORATE OF INTELLIGENCE -- The Director of the National Counterterrorism Center shall establish and maintain within the National Counterterrorism Center a Directorate of Intelligence which shall primary responsibility within the United States Government for analysis of terrorism and terrorist organizations  (except for purely domestic terrorism and domestic terrorist organizations) from all sources of intelligence whether collected inside or outside of the United States..."

[Emphasis added by MILNET]
Here again, Congress was sensitive to the need to restrict any new agency from conducting domestic information gathering.  Currently the role of collecting domestic information is assigned to the Federal Bureau of Investigation and modifications to their role are clearly spelled out in other legislation (The U.S. Patriot Act 5, of 2001, Foreign Intelligence Surveillance Act of 1978 6, and the Electronic Surveillance Modernization Act 7).

Our analysis of the legislation and Executive Orders relating to the NCTC indicates the following have been implemented:
  1. Implement the NCTC in a "Joint" fashion similar to DoD's unified command structure, unifying joint intelligence functions in the IC (Intelligence Community).
  2. Build on the existing Terrorist Threat Integration Center (Department of Homeland Security), integrating all such operations in the U.S. and tasking both internal and external intelligence requirements.
  3. The NCTC should perform operational planning and have the authority to assign lead agencies to actually execute those plans.
  4. The director of the NCTC would be under the Executive branch,  and be confirmed by the Senate and have the rank of a cabinet department, reporting to the National Intelligence Director.
  5. The NCTC would track implementation of plans, influencing budgets and leaders of counterterrorism arms of CIA, FBI, DoD, and DoHS.
The sixth item from the recommendations detailed a reporting structure -- that the NCTC would take direction from the National Security Council. While this is not in legislation, said legislation is not needed.  The NID reports to the President, the NCTC reports to the NID and all the Directorates of the NCTC report to the Director of the NCTC.   The National Security Council desires are communicated to the NID without the need to legislate that reporting structure -- it is the responsibility of the President to see that the NID and the National Security Council are in sync...that is called management. 

Thus our score for the NCTC recommendations is 100%.  Indeed, the legislation goes well beyond the 9-11 Commission recommendations and spells out several additional offices within the NCTC which help the NCTC meet the nebulous requirements of  (in the language of the 9-11 recommendations):


NIC

A NIC is a "National Intelligence Center".  Each of the 15 entities that comprise the U.S. Intelligence Community, are already NICs.  They include such alphabetic soup as the FBI, NSA, CIA, DIA, and so on.   Each has their own specific jobs to do and indeed the Intelligence Reform and Terrorist Prevention Act of 2004 goes the extra mile in making sure that any agency that needs a little more authority gets it, and that no agency gets more than it needs (the legislation carefully spells out where newly created agencies CANNOT supplant the activities and responsibilities of existing agencies). 

The 9-11 Commission made the following recommendation:
"NICs would exist for CIA, DIA, NSA, and FBI, and would handle new organizations, train, and equip, as well as handle execution of intelligence operations in the field."
For example, the legislation implements a version of the  TTIC  -- Terrorist Threat Integration Center created by Executive Order in Homeland Security, however now creating the entity as a national level asset.  Again, prior to the 9-11 Commission, TTIC already existed, Congress simply beefed it up a bit and made it a national asset.

The legislation clearly points out that the NCTC is where the counterterror info is made available to all the 15 agencies and this is done by having membership and information sharing existing within the center itself...there are a host of representatives in the NCTC who provide the effective and useable information sharing from all 15 agencies.  How that is done exactly remains classified and rightly so.  The key information for us is that it takes place, it has been tested in real world events and it works to stop terrorist attacks in this country.

The NIC idea supports existing training and equipment procurement facilities within the 15 intelligence agencies and directs Congress to further support those efforts by additional funding where necessary.

In addition, several organizations are building in organizational entities to meet the needs of the NIC concept.  For instance, the FBI announced it was creating the National Security Service.  In the announcement it was said that the FBI's NSS,
"...pulls together the Counterintelligence Division, the Counterterrorism Division, and the Directorate of Intelligence, enabling it to act together to develop intelligence and then to act on that intelligence, in consultation with not only Department of Justice but also the Director of National Intelligence (DNI). We look forward to working with the DNI over the next 60 days to put in place additional steps that may be required to give full implementation to the development of this National Security Service."
[NOTE:  The DNI mentioned in the news release above is the NID -- National Intelligence Director as codified by the legislation discussed in this analysis  - MILNET]
Thus, thankfully, we give the national leadership a 100% on the NIC implementation.  However, we must remain vigilant -- Congress does not always fund NIC type structures within the 15 agencies and it is up to external analysts to focus on whether Congress has dropped the ball in that funding.  And there may need to be other changes to each of the 15 agencies and Congress will need to support those changes with funding.



Changes to the CIA

In a puzzling display of irrationality, the 9-11 Commission made the following recommendations:
"The CIA should concentrate on strengthening the collection capabilities of its clandestine service and the talents of its analysts, building pride in its core expertise."

"Secrecy stifles oversight, accountability, and information sharing.  Unfortunately all the current organizational incentives encourage over classification.  This balance should change; and as a start, open information should be provided about the overall size of agency intelligence budgets."
Not too surprisingly, our clandestine friends said of the first paragraph, "No duh!  As if that hasn't been a goal of the CIA since its inception!"   If it were not for Congressional interference and leaks of Intelligence Community secrets, there would not be such a pressing need today for such strengthening.  And we also lay some blame on a certain few CIA directors who essentially "outted" CIA operatives by calling them home to attend knitting lessons or some such nonsense.  Our point here is that the first paragraph is asinine and demonstrates a lack of competence for its being stated in the first place.

The second paragraph is nearly as bad.  "Secrecy stifles oversight.."  Nearly every case of espionage in the United States has occurred where compartmentalization of secret information failed.  Not because it was over classified, but because the agent of espionage had access to information and that the safeguards on that information proved to be wholly inadequate. 

The 9-11 commission recommendations in this area reflect a junior Congressional view of the intelligence oversight.  Not everyone on any committee that now believes they have the authority to oversee the Intelligence Community can see the budgets or every little secret detail of operations.  Indeed experience with Congress has shown that the best way to make public things that should remain secret is to give it to a politician in the U.S. Congress.

The phrase "Secrecy stifles oversight..." is reversed.  "Oversight destroys secrecy" would be more appropriate.  The difficulty is in providing oversight, which everyone agrees is necessary in our free society.  But at what cost?  We need to provide oversight without compromising the intelligence mission, not compromising the intelligence mission to please Congressional curiosity. 

This is why oversight needs to be codified.  What is to be seen, which select few individuals in Congress are allowed to do the looking and how the counterbalance is to take place, all need to be codified. 

[OPINION]:
There is nothing worse for the Intelligence Community to see Senators bicker about things they have no concept of or no expertise with while they publicly chew on the sides (we had another piece of anatomy in mind) of the Intelligence Community.  That is more than counter-productive, it is traitorously destructive.  It has to stop. 

ALL discussions on intelligence need to occur by our elected leaders behind closed doors.   Play politics with other areas of government control.  And since Congress clearly cannot put down partisan bickering even on something as serious as the Intelligence arena, than public discussions of the subject should cease immediately.


Congressional Oversight

[ANALYSIS]:
It would be funny were it not so serious. The 9-11 Commission clearly spelled out the need for additional Congressional oversight in the Intelligence Community.  However, the Commission went one step further.  It recommended consolidation of oversight responsibility, realizing that there were more committees engaged in oversight of one form or another than there were intelligence organizations. 

That condition has not changed.  Congress still has no clear lines of oversight responsibility and the number of committees who have the authority to call in the leadership of the Intelligence Agencies is phenomenal.

Now we could be wrong...however, we have not seen ANY legislation correcting this particular problem.  And frankly we are not surprised  at the lack of legislation.  We WOULD be surprised if any was forthcoming. 

[OPINION]:

Congress has historically never relinquished ANY of its power since the signing of the Constitution.  And where the Constitution is silent on certain matters, Congress is not.  To expect Congressional Committees to give up their power to intrude is a childlike fantasy that frankly we do not believe will ever come to pass.

Again, the Commission demonstrates frustration of its members at not having access to things that must remain secret, and portrays an almost junior perception of the role of Congress.  Certain of the leadership DO have exposure to much of the Intelligence Community details, however, the vast majority of even those on the Intelligence committees do not have all that the leadership does.  And this is the way it should be, and will remain.

[ANALYSIS]:
Sadly we give Congress a 0% in this area of the 9-11 recommendations due to the fact that they can no more police themselves today than they have in the past.


Summary

The national leadership has done well in implementing the rationale portions of the 9-11 Commission recommendations that effect the Intelligence arena.  The U.S. now has:
[OPINION]:
The question arises, of course, is how well does all this new organization of the Intelligence Community and the legislation creating it work.   Only time will tell.  Our clandestine friends assure us it is working quite well and that our newly charged intelligence community has already stopped more than one terrorist attack by way of information sharing amongst the various agencies of the U.S., State and Local government cooperation. 

Congress and oversight is still a major problem for the Intelligence Community.  If there ever was an area that cannot accept partisan influences, it is Intelligence. Yet, both parties continue to place members on these committees who bicker and pontificate as if their words had real meaning, instead of placing experts on intelligence.  Indeed some of the committee members appear to be childlike in their approach to the world and intelligence. Also at times it appears the committee members have no idea what intelligence gathering and clandestine operations do, let alone how to oversee them and/or improve the organizations that conduct such operations. 

During WWII, Franklin Roosevelt was told by soon to be OSS chief William Donovan that the U.S. had an intelligence organization that were worried that spying was "not something gentlemen did to one another" or something to that effect.  Our clandestine activities appear to be headed that way of late, and it does not inspire confidence when Congress cannot come to grips with the reality of the people we face. 

Moreover, Congress appears to be focused on law enforcement, which is only a small priority in intelligence operations.  Exposure of espionage or disruption and/or destruction of terrorist plots and organizations even by the simple expediency of deportation is in some cases an adequate solution.  Sure, it would be great to hang every terrorist, but as long as we stop the attack, all else becomes secondary.  Fortunately, it appears the FBI is finally learning this lesson, and we hope the rest of the community understands as well.  Hopefully someday Congress will get a clue.

Having said that, there are elements within Congress who seem to get it.  The recent passage of two measures in Congress signal there is hope for the future.  The Electronic Surveillance Modernization Act and the Detainee Treatment Act of 2005 8 provide much needed clarification on the surveillance and treatment of terrorists -- necessary authorities in emergencies as well as new or ongoing counterintelligence/counterterrorism operations.

Sources:
  1. National Commission on Terrorist Attacks on the United States, June 23, 2004 (Mirror)
  2. Summary and Analysis, 9/11 Commission Recommendations, MILNET, July 22, 2004
  3. Intelligence Reform and Terrorist Prevention Act of 2004, U.S. public law 108-458 (Mirror)
  4. Lt. General Michael Hayden, The Wikipedia
  5. The U.S. Patriot Act,. Senate version as enacted in law, October 2001 (Mirror)
  6. Foreign Intelligence Surveillance Act of 1978 (Text), Senate version as enacted in law (Mirror)
  7. Electronic Surveillance Modernization Act, House version as enacted in law (Mirror)
  8. Detainee Treatment Act of 2005, House version as enacted in law (Mirror)
  9. Richard Burgess, Jr, The Wikipedia
A note on sources and methodology.


© Copyright 2006, Michael G. Crawford