MILNET Opinion
  Laws, Regulations and Rules

"In 1995, the Justice Department embraced flawed legal reasoning, imposing a series of restrictions on the FBI that went beyond what the law required. The 1995 Guidelines and the procedures developed around them imposed draconian barriers to communications between the law enforcement and intelligence communities. The wall "effectively excluded" prosecutors from intelligence investigations. The wall left intelligence agents afraid to talk with criminal prosecutors or agents. In 1995, the Justice Department designed a system destined to fail."

-  U.S. Attorney General John Ashcroft, in testimony before the 9/11 Commission, April 15, 2004. 1

Our opinion is that Congress and the Executive Branch must be cautious in changing the Intelligence Community -- while things were definitely broken before, improvements since 9/11 should be carefully preserved.  Our duties as citizens requires that we elect leaders who will both preserve those improvements and reject political correctness, careerism and creation of regulations and policies that serve appearance rather than critical national security needs.

There is no better time than the present to take the time to remind ourselves that we are a nation of laws.  Laws are written to be more than just guidelines, they are sacrosanct.  Those who would take laws as guidelines and attempt to skirt either the spirit or the letter of the law do so at great risk.  Moreover, those who would assume they can extend the law beyond its written form and legislate without authority, create conditions for catastrophic failure.No greater risk is incurred than when people in power assume they understand the spirit of the law and somehow presume they can extend the premise of the law to meet their political and philosophical needs.

The case in point was made clear to us on April 13, 2004.  This was the revelation that the Department of Justice in 1995 was engaging in wholesale extensions of the law that created an environment wherein FBI agents could commit professional suicide simply by doing their duty as counterintelligence or counterterrorism officers.

Today, only four months later, we probably need to remember that beyond careerism and political correctness, one of the major failures in the intelligence community was the inability to simply do the basic investigative work with three suspects that perhaps could have brought the whole 9/11 plot into focus well enough before 9/11 to prevent or mitigate the damage and lives lost.

As the U.S. Congress prepares to draft legislation to modify forever the U.S. Intelligence Community and in ways that have been considered even as far back as the Truman presidency, we need to remind Congress how our legal system works -- clearly they need that reminder as much as any politician or lawyer -- those who tend to regard laws more as guidelines that can be broken at a moment's whim.

Laws are immutable -- at least until Congress, state or local governments repeal or modify them.

Regulations flow from Laws.  Regulations are the guiding threads that help clarify how a particular law applies to the citizenry.

Rules are at a tier lower than regulation.  Rules may be fashioned to satisfy specific areas of regulation for a particular skill, vocation, or activity. 


An Example

For example, Congress crafted legislation that prohibited the U.S. military from conducting military operations against U.S. citizens.  The idea or spirit of the law was to prevent the U.S. Government from using it's military power to force its desires on the American People.  Called Posse Comitas, the laws are specific and clear.

However, regulations were drafted for the U.S. military that prohibited certain and specific activities.  These regulations allowed the soldier to know what was proper or improper conduct.

Rules for military operations flowed from those regulations.  For instance, a soldier in the U.S. military is not obligated to accept an illegal order.  Of course, that means that the U.S. soldier has to be capable of discerning what is and what isn't a legal order.  Therein lies the problem.  At times those who create the laws aren't sure, those who are charged with the authority to enforce those laws aren't completely sure, and many lawyers will tell you there are always exceptions to every rule, making it difficult for anyone to discern right from wrong. 

That's where the human thought process must fall back on "doing what is right in your heart".  It is also known as common sense.  Unfortunately not all of us have common sense, or perhaps, sometimes other things push aside our common sense.  Emotions, religion, upbringing, any number of things effect our common sense at any given point in time.

And we expect a U.S. soldier with at a minimum a high school education to be able to discern what is and what isn't a legal order?  Already we are in big trouble.


Natural Effects

Take for instance the pre 9/11 decade.  It culminated a multi-decade growth in American distrust for its government agencies that began back in the 1960s.  From investigations of anti-war protesters and organizations to the Watergate break-ins came laws that prohibited laise-fair gathering of information on U.S. citizens by the Federal Bureau of Investigation.   A tenuous tie between privacy and investigative authority created that climate, with the actual constitutional basis being questionable at best.  Regulations were created to modify the behavior of federal investigators based on the assumption that Congress had already given itself the authority to extend the constitutional imperative for privacy and limit investigative power.

This created a process wherein the Federal agent must first prove to a court that it had probable cause to investigate, and then there were time limits placed on different types of information gathering -- for instance electronic surveillance.  If the investigation were to target a suspected agent of a foreign government, a special court was setup to hear the rationale and forms that were to be followed in determining probable cause and the danger to the nation had to be sufficient to override these modern day regulations.  If the court found that the agents were in possession of evidence that clearly might lead to a terrorist or saboteur, than the court would grant certain limited surveillance authorities.

Some of this process was defined in specific law, and some were defined in regulations -- Department of Justice Regulations governing their child agency, the Federal Bureau of Investigation. The regulations flowed into rules of conduct - similar to Rules of Engagement for the military.

Over time, more rules were added as civil libertarians complained of discomfort in the already constitutionally stretched regulations. 


Results
In the 9/11 Commission hearings in which John Ashcroft made the quoted statement at the top of this briefing, he also cited several examples of how the DOJ had adopted rules and regulations that "built a wall" between criminal investigations and anti-terrorist efforts -- including terrorism prevention.  Even within the DOJ they recognized the problem with their wall, even going as far as stating in a now infamous memorandum:

"These procedures, which legally go beyond what is legally required, will prevent any risk of creating unwarranted appearance that FISA is being used to avoid procedural safeguards which would apply in a criminal investigation."
The intent of the guidance to the Department of Justice employees was therefore safeguards to protect against the appearance of an attempt to circumvent safeguards.  If left unchecked, this kind of bureaucratic nonsense would eventually have us five levels deep in safeguards against safeguards which protect us from appearing to conflict with safeguards, built upon other safeguards, which flowed from earlier safeguards. 

The unfortunate part of all this, from the management perspective, is that the original safeguards were already flawed and had no basis in constitutional law.  However, we must let that go, since the constitutional debate will go on for another 200 centuries at least.


Futures

At the time of the hearings at which Ashcroft testified, the media was frenzied by the revelation of how serious this wall had become prior to 9/11.  Aside from some rather contentious accusations about a certain member of the 9/11 Commission being the author of the memorandum in question, the real issue was pretty much ignored by the mainstream press, their angst focusing on the personal issue rather than the more important and far reaching implications that Ashcroft was attempting to point out.  Not until the final report of the 9/11 Commission was released in mid August of 2004, did it finally become clear what the real issue was.

The real issue that the wall was built by an interpretation and extension of law that had occurred administratively within the DOJ and consequently, within the FBI.  These regulations and guidance to the DOJ occurred without regard to either the constitution and without legal authority.  In other words, someone at DOJ interpreted what they believed to be the will of the people of the United States, and in order to meet that vision of people's will, they overreached.  They went beyond the requirements of law in the direction of and followed the lead of the regulations.  They played it safe, a rather ubiquitous bureaucratic management method that has been around for centuries. And with political appointees and their toadies as the only persons to evaluate those new rules, perception matched desire, and everyone was happy. Including, unfortunately, the 9/11 terrorists. 


Mechanisms for Change

Today, Congress and the Bush Administration are about to "go at it" in order to determine how the Intelligence Community of the future will be structured.  Some advocate the use of the Executive Order as the mechanism to define this new structure, and Congress has already let fly with legislation that will make major surgery upon the IC.  Meanwhile the administration had already taken several key steps, first by standing up the Terrorist Threat Integration Center in May of 2003, as well as announcing on August 15, 2004 the acceptance of the 9/11 Commission recommendation to establish the office of the National Intelligence Director and to expand the TTIC to become the National Counterterrorism  Center  -- the NCTC.

When many of the proponents of the use of clear and specific laws were riding high on the expectation that Congress was going to define a set of laws specifically to address the changes in the Intelligence Community, another bump in the road appeared.  At the August 16 Senate Governmental Affairs Committee hearing on the 9/11 recommendations, former DCI Stansfield Turner let loose with a near fatal salvo.  He stated that President Jimmy Carter had given him, through Executive Order (it is not clear whether a verbal command was followed up by a written order) the authority to turn over day-to-day administration of the CIA to his deputy while, he, Turner, would become the Intelligence leader for all of the U.S. Intelligence Community.  In other words, as Turner put it, he was the guinea pig serving to test the first instance of a National Intelligence Director.  Combined with the fact that in 2003 President Bush had created the Terrorist Threat Integration Center, it appeared that nothing more than an executive order was necessary to modify the Intelligence Community.

MILNET believes the battle lines are now drawn, with key aspects of operations and planning on the chopping block as Congress has already indicated that whole agencies may be taken out of the budget and administrative control of either the CIA or the Department of Defense.

This creates a huge dilemma for those of us watching the battle forming up.  On one hand, we don't want to have a situation where  no laws govern the area of Intelligence operations -- the activities of the IC are very dangerous and fraught with ways to damage both internal and external trust of the U.S. government's intentions, not to mention create damage to the minds and bodies or people inside or outside our country. 

On the other hand, we have seen what happens when we let lawyers interpret laws and create regulations and rules where the laws fail to address a particular issue.  And finally, we have seen what happens when political philosophy interprets how our federal employees conduct themselves, even in critically important areas as counterintelligence or counterterrorism activities.

The wall between criminal and anti terrorism efforts is just one of a number of effects created by weak or non-specific legislation.  A Deputy Attorney General decided that "in order to prevent the appearance..." of impropriety, she would go beyond the letter of the law and create regulations that pro ported to reflect the proper procedure for complying with law -- unfortunately, law that did not exist. 


Warning
As this is a dangerous time with Congress about to craft legislation to make some rather dramatic changes to the Intelligence Community, it  IS necessary to warn Congress to be cautious of precipitous action as well as to remind them of how non-specific laws will force those who create rules and regulations in the various IC agencies to make more interpretations.  This will present yet another opportunity to "get it wrong" instead of "doing the right thing".

Congress needs to say what it wants.  Or provide the specific language necessary should the President decide to use an Executive Order to accomplish the changes to the Intelligence Community.  Then simple language regulations should be drafted and the same Congress that drafted the laws should determine if the appropriate agency's internal regulations meet the sprit of the law they have created.  That is what is known as oversight. 

For the real blame in all this is not a politically correct Deputy Attorney General, but a Congress that has failed in their ultimate duty to provide oversight into the Department of Justice.  A Congress which allows political expediency to trump national security, either through specific action or inaction is not worth much to the nation. 

For instance, if Congress believes it is more important to disrupt, interrupt or destroy a terrorist plot to kill Americans than it is to successfully prosecute those terrorists, than Congress must not only make that desire clear, but carefully craft legislation to codify both the desire and the procedural steps necessary to protect Americans instead of prosecute terrorists in a courtroom.  This is the prevention versus prosecute paradox that we face post 9/11.  If Congress fails to be specific, someone will invariably decide they understand what is necessary and make their own laws by drafting departmental rules and regulations that meet their own particular political bias.  And then we will be back right where we started, a pre 9/11 bureaucracy frozen in place by its own finely created handcuffs.


Will Checks and Balances Continue to Work

In a system of checks and balances, it is ultimately the balance of power between the Legislative and Executive branches that we, the citizens of this country want and desire.  There is absolutely nothing wrong with the President of the United States using his authority to create and standup the TTIC organization to satisfy a need made very clear by the events of 9/11.  And there is nothing wrong with Congress wishing to codify that organization and expand it to better serve the original purpose.  Both efforts are part of the balance.

We, the American citizens have our duty as well.  We must watch carefully how the two branches of government work together, and if they do not get it right we must a) detect the failure, b) call for correction, and c) hold our leaders accountable for their failures.

And of course that is how the blame game gets started.  Both political parties can point to long term Congressional membership on whose watch 9/11 occurred.  The problem with accountability is that unless the people give Congress a mandate, they provide the opportunity for Congress to play politics instead of do their job. 

A fifty-fifty Congress is part of the problem.  While it might reflect the split in the American electorate, it is this same divisive form of rule that clearly doesn't work.  When majority rules becomes a fractured tenet that wavers in one direction and then another, we do not get responsible legislation. We get emotionally driven, capricious decision making that swings one way or another around a stagnant central point. In essence, our Congress becomes useless. 

What frightens us is that even with issues that are critical to our national survival, the endless debate and almost child like bickering threaten to be our undoing.  Take a look at the current Presidential Campaign if you doubt how fractious our system has become.

The Citizen's Duty

In the end we must elect both the members of the Executive Branch and the Legislative Branch.  We must choose accomplished leaders. We must hold those leaders accountable.  Opting to replace our leaders every election cycle to err on the safe side is ludicrous, just as it is to go with an unknown in order to hide the blemishes of a current administration.  "If it works, don't fix it" is an old saw. Currently, the changes to the Intelligence Community appear to be working.  Let's not get too anxious to go out and repair it. 

If Congress wants to wave its budgetary authority around, let's have them focus on providing what the Intelligence Community has been begging for.  Let's put the right people together in a building, not change the org chart.  Let's build a computer system architecture that will allow the 15 odd agencies to communicate and process in the 21st century instead of barely adequate systems designed in the late 1960s.  Let's create a recruiting process AND an educational process that will create a pool of talented Americans who can speak and understand the languages of our enemy and be willing to help us as linguists in our intelligence agencies. 

We should never, ever, hear again that for the sake of a few more analysts we might have been able to "connect the dots".

We should never, ever, hear again that the counterintelligence, counterterroism, and law enforcement folks can't talk to each other.

We should never, ever, hear again that the Department of Justice is more concerned with appearances than chasing down criminals and terrorists.

We should never, ever, hear again that Immigration Service, the State Department, the Border Patrol, and the Intelligence Community cannot figure out how to keep terrorists out of country or cannot find a suspected terrorist who has entered this country illegally.

Who cares if a swift boat Captain was on one side of the Cambodian border on December 24 over thirty years ago.  Who cares if a President took 7 minutes out to contemplate what the hell he was going to do now that the world had changed forever.

What we need now is to fight a war that will not be over next week or three election cycles from now.  We need war fighters.  People willing to stand up for this country and its citizens.  We need people who know the difference between right and wrong and support our military. And most of all, we need people who can focus on the real issues, not serve perception and careerism. We need people who don't change their stripes and jump back and forth on issues so often we need a scorecard just to keep track of where they stand.

Politics as usual in this country created the environment for 9/11 to succeed.  Bin Laden's grim friends obliged us with a reminder that we cannot have politics as usual any more.  The 2004 election has the opportunity to once again serve us with a decade of political correctness over duty, careerism over decisiveness, cowardice over gutsy determination.  Once again, our common duty is to elect those who will focus on issues and solutions, not build walls between those whose job it is to protect us.


Sources:

The National Commission on Terrorist Attacks on the United States
  1. Testimony of Attorney General John Ashcroft, April 13, 2003 (PDF 16KB)  (MILNET Mirror) (Text version)
  2. Hearing 10, April 13, 2004 (9/11 Website)
  3. The Gorelick Memorandum (MILNET Mirror)
  4. Final Report, June 23, 2004 ( MILNET Mirror)
U.S. Senate Governmental Affairs Committee Hearings
  1. Hearing Statements, Reorganizing America's Intelligence Community: A View from the Inside U.S. Senate Governmental Affairs Committee hearing, August 16, 2004.
  2. Hearing Statements, Assessing America's Counterterrorism Capabilities, U.S. Senate Governmental Affairs Committee hearing, August 03, 2004.
  3. William Webster, former Director of Central Intelligence, written statement submitted to the U.S. Senate Governmental Affairs Committee hearing, August 16, 2004.
  4. R. James Woolsey, former Director of Central Intelligence, written statement submitted to the U.S. Senate Governmental Affairs Committee hearing, August 16, 2004.
  5. John O. Brennan, Director, Terrorist Threat Integration Center, written statement submitted to the U.S. Senate Governmental Affairs Committee hearing, August 03, 2004.
  6. John S. Pistole, Executive Assistant Director for Counterterrorism and Counterintelligence, Federal Bureau of Investigations, written statement submitted to the U.S. Senate Governmental Affairs Committee hearing, August 03, 2004
  7. Lieutenant General Patrick M. Hughes, Assistant Secretary for Information Analysis, Department of Homeland Security, written statement submitted to the U.S. Senate Governmental Affairs Committee hearing, August 03, 2004
  8. Philip Mudd, Deputy Director, Counterterrorist Center, Central Intelligence Agency, written statement submitted to the U.S. Senate Governmental Affairs Committee hearing, August 03, 2004

Media
  1. Proposed Changes to the U.S. Intelligence Community , a MILNET Brieing and Analysis, August 22, 2004
  2. Summary and Analysis of the Governmental Affairs Committee Hearings on 9/11 Commission, MILNET Briefing, August 22,  2004
  3. Gorelick Memo Exposes 'Feckless' Clinton Policy, Ken Timmerman, Insight on the News, April 13, 2003
  4. Ashcroft Blames Clinton-Era  FBI, CIA, NBC, MSNBC, April 14, 2004


-  Copyright ©, 2004, Michael G. Crawford for MILNET