MILNET:

MILNET Brief
Analysis and Summary of the 9/11 Commission Report Implementation act of 2004

"A bill to implement the recommendations of the National Commission on Terrorist Attacks Upon the United States, and for other purposes."

- S 2774, September 8, 2004.

On September 8, John McCain and Joe Lieberman led a small group of Senators to propose legislation (S.2774 PDF 479K), "9/11 Commission Report Implementation Act of 2004" which supposedly to implement nearly all of the 9/11 Commission's recommendations.

This brief will present an analysis followed by a detailed summary of the provisions of the bill as found on 9/10/2004

Analysis

Executive Summary:

If you are looking for a short summary, you will be disappointed. S.2774 is a monster of a bill, with some nine titles each equivalent to a bill in their own right. For those who wish to get only a cursory glance, you can skip to the titles list below:

Major portions of Title I of the Bill (The NID and NCTC provisions) will most likely be implemented before the end of the 108th Congress, however Titles III through IX will be under debate well beyond 2004. Title II is the information systems proposal and portions dealing with analysis of a common architecture across the intelligence community may be enacted in order to get that analysis started, however the complexity of that process is likely to take years if not a decade.

Title I implements the NID and the NCTC and is well written and quite specific language. It reads like solid law, while, beginning with title II the Bill reads like wishful thinking, incorporating language we recognize as guidance to lawmakers rather than finished law. This means the language will require months of cleanup -- unless of course the correct language has already been under edit and is waiting for Congressional interest to begin the debates.

Title II deals with information systems and while most will agree with many of its measures, the schedule in the Bill for development and implementation goals are not rational and the nature of the problem will require many months to visualize, let alone agree upon. This will delay its passage due to wrangling over provisions, however, there is the possibility that the language may be de-specific-ized and therefore make passage so that the experts in computer systems can be given the problem to solve.

This analysis will focus on Title I and V, while the other seven titles will remain in extremely brief form only.

Our analysis is that all the provisions after Title II will be chopped to pieces. For instance, the Bill includes requirements for development and implementation of a new biometric passport and national standards for driver's license and personal identification cards -- standards that if not met will mean the document cannot be accepted for federal purposes. That is extremely likely to meet heavy resistance from civil libertarian groups.

Another example is that Title V levies huge requirements on the DoS to implement foreign education programs, foreign entry programs for education purposes, and foreign aid programs which many will believe spend funds that could be better spent on U.S. students or even spent elsewhere at a time of MILNET's opinion is that this title will not survive the Congressional process and in the least, may be tabled for a decade or more. Some provisions may survive (after much modification and reduction) as carrots to be used to increase U.S. influence in Arab nations of interest.

Title Analysis- Overviews

Title I

The Bill indeed implements the 9/11 Commission recommendations. It essentially creates the National Intelligence Authority -- the NIA and invests it with the national level intelligence community controls of the Director of Central Intelligence and transfers the executive level offices and authority of the DCI to a National Intelligence Director.

It dual hats three subordinate Deputies who are essentially the appropriate senior level intelligence community officials (Director of CIA, Under Secretary of Defense for Intelligence, and either the Under Secretary of Homeland Security for IAIP or the Executive Assistant Director for Intelligence at the FBI.

The Bill creates several bureaucratic positions in the NIA, including a Civil Liberties/Civil rights officer, a Privacy officer, a Comptroller, an Inspector General and allows for professional staff.

As expected, it transfers the TTIC to the NCTC and implements the joint planning concept by creating a Directorate of Operations within the NCTC.

In essence the bill guts the executive level of the Office of the Director of Central Intelligence and places it in the new NID's office, and adds more specific authority for the NID.

It essentially makes the NSA, NRO, NGSA and Intelligence components of the DoD subordinate to the new NIA organization specifically under the control of the Deputy NID for Military Intelligence.

It takes care to spell out the cooperative mode of operation visa-vis working with the Secretary of Defense and his subordinates as far as budget and priorities, but in the end, gives conflict resolution authority to the President.

The CIA retains foreign collection responsibility, and the FBI retains domestic collection responsibility.

The National Foreign Intelligence Program is redesignated to the National Intelligence Program and the appropriate adjustments to the budgeting process are changed as well, with the NID controlling all intelligence budgeting for the U.S. government including reprogramming.

Analysis for Military intelligence still takes place in the hands of the military and is responsible through the NID Deputy for Military Intelligence.

Analysis foreign intelligence activities occurs in the CIA and is responsible through the NID Deputy for Foreign Intelligence.

Analysis for domestic intelligence collection takes place in Homeland Security and the FBI and reports through the NID Deputy for Domestic Intelligence.

The Bill also contains LOTS of new regulations and requirements for reports to be created by the President and/or his Secretary of DoHS and/or Secretary of State and/or Secretary of Defense.

Bad Ideas

The following list is comprised of those ideas many in the Intelligence Community and the Executive Branch have said are bad ideas. Putting aside personal bias, all concerned in crafting new legislation must take careful notice of those in position know what is good and bad.

Concept		Why it may be a bad idea
Paramilitary (covert actions) only in DoD		There exist already many safeguards to ensure proper oversight for the civilian agencies involved in covert action that should not, cannot apply to use of military units, especially special operations.
Dual hatting deputies from CIA, DoD, and DoHS or FBI to the NID		Dual hatting splits loyalties and creates an unclear chain of command offering opportunities to create conflicted officials who make poor decisions or hesitation.
Removing analysis sections from various agencies and placing them in one organization		1) Heads of agencies need to focus on their specialties and focus their people as they need 2) Large potential for misuse of specialties 3) Some analysis capability is shared and synergetic to the organization -- for instance recent changes in the FBI have brought the field and headquarters analysis capabilities together, splitting that apart by moving the analysis section to a group under the NID may destroy that new and very effective capability 4) In most cases, the movement of analysis to a separate unified organization will separate the operators from the analysts, which recent experience this synergy has shown to provide increased performance and capability.
Complete sharing of information		Sharing is okay, but only if and when security provisions can be PROVED to prohibit a person like Aimes or Hansen from stealing all our secrets and handing them to our enemies (more than just an anti-terrorist and domestic intelligence security issue). If security provisions cannot be proven to be effective in eliminating penetration then the sharing network should not be implemented.

For those not willing to read the complete bill, here are the titles of the sections (also the summary of the House version is quite descriptive):

Title I - Reform of Intelligence Community

Implements the NIA, its Director (NID), the National Counterterrorism Center (NCTC), the National Intelligence Center (NIC) and topic or geographic based individual national intelligence centers. Also creates a number of bureaucratic units within the NIA that will expand the size of the executive level of the current Director of Central Intelligence Office. The title also implements a civil rights, civil liberties and privacy advocacy within the department, which may find some trouble surviving the Congressional process.

Title II - Information Sharing Network

Directs the NID and cabinet level departments to create an intelligence information network and systems to share information between the agencies, store and disseminate classified information and update classified information handling and dissemination standards and practices. Many of the provisions will meet with success, however, the proposed timing is most likely not rational and this may delay passage.

Title III - Congressional Reform

Proposes new oversight and budgetary processes that Congress participates in with regards to the intelligence community. Much will change in the power of Congress over the intelligence community and this will, unfortunately mean huge fights in Congress and little progress will be made before the end of this session of Congress. Some portions may be passed or the provisions dumbed down in order to get started (let the contractors figure out the details that may not be appropriate in law at this time).

Title IV - Presidential Transition

Includes measures to a) get security clearances to potential transition briefees so that they can receive transition briefings quickly rather than delay the transition process, and b) directs cabinet level department heads to prepare briefings, including current threats and the like to expedite the transition

Title V - The Role of Diplomacy, Foreign Aid, and The Military in the War on Terrorism

Includes "hearts and minds" legislation and no less than twenty or more reports within an average of 180 days from the President, the SecDef, the Sec DoHS, and Sec DoS.

Title VI - Terrorist Travel and Effective Screening

Includes biometric screening, biometric passports for U.S. citizens, temporarily halting the transit passage program (already has occurred) until a security process can be put in place that will not allow the program to be used for illegal immigration (difficult). The Bill also calls for minimum standards for acceptance of birth certificate authenticity and changes to the process for supplying Social Security cards. The Bill also directs the Sec DoHS and the Commissioner of Social Security shall form an interagency task force to further improve the security of social security cards and it shall establish new SSN card requirements.

Title VII - Transportation Security

The Bill directs the Secretary of Homeland Security to develop and implement a National Strategy for Transportation Security and update that strategy periodically as needed and in consultation with the Secretary of Transportation. The strategy should ID transportation assets that must be protected, assigning risk based priorities and a resulting plan to address those risks. The Sec DoHS is directed to submit the strategy by April 1, 2005 and revised plans and progress report every year. The Bill also requires the TSA within DoHS to compare passengers with watch lists and prevent terrorists from boarding national transportation assets, thus requiring a national watch list database. The Bill also requires "as soon as practicable" improve detection of explosives as well as establish an interim screening process prior to the improvements being installed -- as well as a report within 90 days detailing how the detection will be improved and an implementation schedule. The Sec DoHS is directed to accelerate R & D for screening passengers for explosives, improve the performance of screeners at airports, conduct a human factors study on screening within 180 days, improve inline baggage screening, cargo security and hardened cargo containers for cargo carrying passenger aircraft. A cost sharing plan including the proposed formula will be supplied within 45 days.

Title VIII - National Preparedness

Within 60 days, the Secretary of DoHS is directed to establish an advisory panel on how to allocate homeland security assistance funds and within a year begin an annual reporting process on the benchmarks and progress of the program. The Bill also goes into some detail specifying national capital mutual aid, FCC assignment of new frequencies for public safety radio. The Bill directs the Secretary of DoHS to establish a program to promote private sector preparedness. The Secretary must also report within 180 days and annually on DoHS assessment of risks to critical infrastructure. Within 180 days and every 180 days after, the Secretary of Defense must submit a report detailing Northern Command's plans and strategies to defend the United States against military and paramilitary threats within the United States.

Title IX - Protection of Civil Liberties

Establishes the Privacy and Civil Liberties Oversight Board to analyze and review actions the Executive Branch takes to protect the Nation from terrorism and ensure that liberty concerns are considered in development of laws, regulations, and policies to protect the Nation against terrorism and semi-annually submit on the Executive Branches compliance including regular public hearings and reports.

The next two sections focus on Title I and Title V respectively.

Summary of Title I of S 2774

The legislation includes Title 1, "National Intelligence Authority Act of 2004" which sets up the "National Intelligence Authority" (NIA) which is responsible for the National Intelligence Program (NIP) and the NIP budget. The NIA (section 152) has the procurement authority granted under the Central Intelligence act of 1949 and essentially proffers authority granted to the Director of Central Intelligence to the NID and gives the NID the full personnel power over the CIA.

The NIA will consist of the National Intelligence Director, a General Counsel to the NIA, and any other agencies the President or additional law may set up, as well as the NIC and NCTC and of course the intelligence agencies of:

The National Intelligence Authority (NIA)
The Central Intelligence Agency (CIA)
The National Security Agency (NSA)
The Defense Intelligence Agency (DIA)
The National Geo-Spatial Intelligence Agency (NGSA)
The National Reconnaissance Office (NRO)
Other agencies within the Department of Defense for the collection of specialized national intelligence through reconnaissance programs
The intelligence elements of the Army, Navy, Marine Corps, Federal Bureau of Investigation, and the Department of Energy
The Bureau of Intelligence and Research of the State Department
The Office of Intelligence and Analysis of the Department of Treasury
The elements of the Department of Homeland Security concerned with the analysis of intelligence information including the Office of Intelligence of the Coast Guard
Other elements as defined by the President or jointly by the NID and the appropriate department head

The NID cannot be the head of the CIA.

Under the provisions of the bill, the NID has a Deputy as well as three specific area deputies:

Deputy for Foreign Intelligence (who also serves as the Director of the CIA)
Deputy for Defense Intelligence (also serves as the Under Secretary of Defense for Intelligence)
Deputy for Homeland Intelligence (also serves either as the Under Secretary of Homeland Security for Information Analysis and Infrastructure Protection or the Executive Assistant Director for Intelligence of the FBI) .

The bill also sets up a National Intelligence Council, an Inspector General, a Comptroller, an "Officer for Civil Rights and Civil Liberties", an "Officer for Privacy", the "Chief Information Officer" and a number of unspecified staff positions.

The NID's responsibilities (section 131) will provide national intelligence to:

the President
the heads of other departments and agencies of the executive branch
to the Chairman of the Joint Chiefs of Staff and senior military commanders
where appropriate to the House and Senate committees

The NID will:

present an annual unified budget to the President
ensue the budget reflects an appropriate balance between varieties of technical and human intelligence methods and analysis
direct and manage the tasking of collection, analysis, and dissemination of national intelligence
approve collection and analysis requirements and determine collection and analysis priorities and resolve conflicts in collection and analysis priorities
establish and oversee the National Counterterrorism Center and other national intelligence centers
establish requirements and priorities for foreign intelligence information to be collected under FISA 1978
develop and implement personnel policies for the intelligence community (rich in detail)
promote and evaluate the utility of national intelligence to consumers in the government
ensure the appropriate officials of the government have access to a variety of intelligence assessments and analytical views
protect intelligence methods and sources from disclosure
establish requirements and procedures for the classification of information and for access to classified information
establish requirements and procedures for the dissemination of classified information by elements of the intelligence community
establish information sharing and intelligence reporting guidelines that maximize the dissemination of information while protecting intelligence sources and methods
develop and implement in consultation with the heads of other elements of the intelligence community personnel policy and programs
ensure compliance by the elements of the intelligence agency to the constitution, laws, executive orders, etc.
eliminate waste and unnecessary duplication within the intelligence community

In addition the bill directs the NID to establish national intelligence centers within the NIA, each to be assigned specific areas of intelligence responsibility for instance in terms of function, geographical area or other terms. The national intelligence centers shall be assigned to a lead agency by the NID, determine the size and structure of the center, and report to Congress within 30 days of creation of a center. Directors of these centers shall serve as principal advisors to the NID and submit budget personnel requests and technology requirements to the NID. The centers will have staff assigned by the head of the element head to which the center is assigned.

The Bill directs the NID to report within one year on the reform of the intelligence community.

The Bill legislates the individual agencies must participate in the budget process and how the NID may reprogram funds or transfer personnel as needed within the intelligence community

The Bill implements the National Counterterrorism Center (NCTC) and makes the NID responsible for its operation

The Bill defines the National Intelligence Council (NIC) which can consist NID appointed members from government or the civilian sector who are "senior analysts within the intelligence community and substantive experts from private industry and private sector" , whose responsibilities are to produce National Intelligence Estimates including alternative views, evaluate community wide intelligence collection and production, and other tasks set out by the NID. The bill defines in some detail how the NIC will set out characteristics of their findings to ensure reliability and confidence in their output using confidence factors, as well as spelling out assumptions and judgments. The NIC may contract out intelligence analysis as needed and will have a staff. The NIC will be "readily available" to policy makers and "other appropriate individuals". The heads of the intelligence agencies will provide support to the NIC.

The Inspector General for NIA is defined, and together with the NID must submit semi-annual (due June 31 and December 31) classified reports to Congress detailing his cases. The IG is to have a staff. The NID must make available reports and findings of the IG office at the request of the ranking member or chairman of either intelligence oversight committees. The bill spells out complaint procedures and time limits for reporting of such complaints to the intelligence oversight committees.

The Comptroller must be assigned from "private life" and shall assist the NID in preparation of the National Intelligence Program budget, participate with the Secretary of Defense in developing the annual budget for military intelligence programs and activities outside the National Intelligence Program.

The Officer for Civil Rights and Civil Liberties will assist the NID by ensuring that the protection of civil right and civil liberties is "appropriately incorporated in the policies and procedures" for the NIA and in the relationships between the agencies.

The Privacy Officer will assist the NID by assuring that the use of NIA technologies "sustain, and do not erode, privacy protections relating to the use, collection, and disclosure of personal information; ensure information is stored in compliance with the privacy act of 1974 and conducting privacy assessments as required.

The Chief Information Officer will assist the NID by:

developing and implementing an integrated information technology network;
develop an enterprise architecture for the intelligence community, and ensuring the elements of the intelligence community comply with that architecture;
ensure the elements of the intelligence community have direct and continuous electronic access to all information including unevaluated intelligence for appropriately cleared analysts to conduct comprehensive all source analysis and for appropriately cleared policy makers to perform their duties;
review and provide recommendations to the NID on NIP budget requests for information technology and national security systems.
assist the NID in promulgating and enforcing standards on information technology and national security systems that apply throughout the intelligence community
provide for the elimination of duplicate information technology and national security systems within and between the elements of the intelligence community

.The bill requires that the NID consult with the Secretary of Defense on intelligence appointments to positions traditionally falling under the authority of the DoD and requires, when there is dissent from secede to include a statement to that effect when the NID presents the appointment to the President. Covered are appointments to NSA, NRO, and NGSA.

A similar policy is spelled out by the bill for the other agencies in the intelligence community. The positions effected by the general policy are the Under Secretary of Defense for Intelligence, the Under Secretary of Homeland Security for information analysis and infrastructure protection, the Director of the Defense Intelligence Agency and the Executive Assistant Director for Intelligence of the FBI.

The bill details the structure of the National Counterterrorism Center -- specifying it is to have a Director, who shall have "significant expertise in matters relating to the national security of the United States and matters relating to terrorism that threatens the national security of the United States".

The NCTC (section 182 transfers the Terrorist Threat Integration Center to the NCTC) shall have a Directorate of Intelligence. The NCTC will have the mission to:

unify the strategy for the civilian and military Counterterrorism efforts of the U.S. government
effectively integrate counterintelligence and operations across element boundaries

The NCTC's Directorate of Intelligence will:

"have primary responsibility within the U.S. government for analysis of terrorism and terrorist organizations from all sources of intelligence whether collected inside or outside the U.S.
be the principle repository for all source information on terrorists, their organizations, and their capabilities
propose intelligence collection requirements for action inside and outside the U.S.
have primary responsibility for net assessments and warnings about terrorist threats with comparison of terrorist capabilities vs. assess national vulnerabilities

The NCTC will have a Directorate of Operations which has the primary responsibility within the U.S. government for providing guidance and plans, including strategic plans, for joint counterterrorism operations conducted by the U.S. government, base upon policy object and priorities established by the National Security Council as well as assign responsibility for counterterrorism operations ot the departments, agencies , and elements of the U.S. Government (in the case of DoD assets, with the concurrence of the Secretary of Defense). The Directorate will have staff.

The Bill also provides for release of certain intelligence budget information to the public.

The Bill merges the Homeland Security Council into the National Security Council.

What follows in the legislation is both "Sense of Congress" and "Findings" that do not appear to have the same tone and appearance as the more formal stated legislation previous. Sprinkled throughout this section are reporting requirements on various changes to operational details as well as reorganizing of budget request formats and other less critical changes to administration and personnel policies. For instance, the legislation calls on the NID to ensure personnel policies reward those FBI agents who have both criminal justice and national security training and experience.

The Bill makes several findings (findings are not binding and do not have the force of law), and makes recommendations (in the form of "Sense of the Congress" statements) that:

the lead responsibility for paramilitary operations shall be retained in the DoD and should be discharged through Special Operations Command.
The SecDef and Director of the Central Intelligence Agency should work jointly to plan paramilitary operations.
the Director of the FBI should improve the FBI workforce to emphasis a culture with substantial expertise in and commitment to the intelligence and national security missions of the Bureau.
Each agent employed by the Bureau shall receive basic training both criminal justice and national security matters.

The bill redefines the Director of the Central Agency to be dual hatted as the Deputy National Intelligence Director for Foreign Intelligence and respells out the DCIA responsibilities as a subordinate of the NID.

The Bill amends the National Security Act of 1947, the Central Intelligence Act of 1949, the FISA act of 1978, and Intelligence Authorization acts are modified to replace "Director of Central Intelligence" with "National Intelligence Director". Similar changes are made to reflect movement of the elements of the intelligence community into the National Intelligence Authority and a redesignation of the National Foreign Intelligence Program as the National Intelligence Program. Also the so called "Community Staff" of the DCI is transferred to the NID (section 181), the TTIC is transferred (section 182).

The Bill also terminates the positions of Assistant Director of Central Intelligence for Collection, Assistant Director of Central Intelligence for Analysis and Production, the Assistant Director of Central Intelligence for Administration.

The Bill terminates the Joint Military Intelligence Program and directs the NID, Director of the CIA and the Secretary of Defense to jointly preserve the intelligence capabilities during the establishment of the NIA

.

Title V - Title V is titled "The Role of Diplomacy, Foreign Aid, and The Military in War On Terrorism". It requires among other things the President or the appropriate cabinet secretaries to submit short term (180 days) and annual reports on a) a strategy for addressing and eliminating terrorist sanctuaries, b) efforts of the U.S. government to support Pakistan and encourage moderation in that country. c) a 5 year strategy for providing aid to Afghanistan d) "strategy for expanding collaboration with the Government of Saudi Arabia on subjects of mutual interest and of importance of to the United States", e) "contains a cohesive long-term strategy for the United States Government to help win the struggle of ideas in the Islamic world, f) "strategy of the United States Government for expanding its outreach to foreign Muslim audiences through broadcast media g) on expediting the issuance of visas to individuals who are entering the United States for the purpose of participating in a scholarship, exchange, or visitor program authorized under Title V Section 508 (Use of United States Scholarship and Exchange Programs in the Islamic World) and schedule for recommendations, h) "efforts of the United States Government to encourage development and promote economic reform in countries that have a significant population of Arab and Muslim individuals." (i) (SecDef) submit to Congress the rules, regulations, or guidelines and any modifications to such rules, regulations, or guidelines for treatment of prisoners in the hands of U.S. military or contract personnel " (j) semi annual reports on any investigations in (i) above, (j) a report on the effort to establish coalition approach toward the detention and humane treatment of captured terrorists (k) a strategy for expanding and strengthening the Proliferation Security Initiative, the programs for Cooperative Threat Reduction and other non-proliferation assistance programs, (l) an evaluation for alternatives to address the global threat of nuclear proliferation, (m) evaluation of the effectiveness of United States efforts to curtail the international financing of terrorism.

The President is also directed to establish International Youth Opportunity Fund and a report on improvement of education in the Middle East.

Sources:

Senate Bill Would Implement 9/11 Panel Proposals, CNN, 9/8/2004
S.2774 - 9/11 Commission Report Implementation Act of 2004, McCain and Lieberman, September 8, 2004 (MIRROR)
Summary of House Version, The U.S. House of Representatives, Representative Christopher Shays, 9/13/2004 (MIRROR)