Side-by-Side Comparison of 9/11 Commission Intelligence Reforms and Legislative Proposals

Order Code RL32524 CRS Report for Congress Received through the CRS Web Side-by-Side Comparison of 9/11 Commission Intelligence Reforms and Legislative Proposals August 13, 2004 Alfred Cumming Specialist in Intelligence and National Security Foreign Affairs, Defense, and Trade Division Congressional Research Service ˜ The Library of Congress Side-by-Side Comparison of 9/11 Commission Intelligence Reforms and Legislative Proposals Summary On July 22, 2004, the National Commission on Terrorist Attacks Upon The United States (also known as the 9/11 Commission) released its bipartisan, unanimous final report containing major recommendations for far-reaching and fundamental changes to the United States Intelligence Community (IC). Almost 20 months after its creation by P.L. 107-306, the commission, as mandated by its founding legislation, attempted to present a full and complete accounting of the facts and circumstances surrounding the terrorist attacks of September 11, 2001, as well as recommendations for corrective measures that can be taken to prevent acts of terrorism. Several Members of Congress also have introduced legislative proposals to reform the IC. Senators Feinstein (S. 190), Bob Graham (S. 1520) and Daschle (S. 6) have introduced legislation that either directly, or as part of broader security legislation, propose a variety of IC reforms. Representatives Harman (H.R. 4104) and Goss (H.R. 4584) have introduced comprehensive intelligence reform legislation. In response to the 9/11 Commission’s recommendations, President Bush has put forward several proposals with regard to intelligence reform, agreeing with the 9/11 Commission recommendations that the position of the National Intelligence Director, and the National Counterterrorism Center, be established. The Administration has yet to propose a detailed legislative reform package. This report presents a side-by-side comparison of the 9/11 Commission recommendations; President George W. Bush’s proposals; legislative proposals contained in legislation introduced by Senators Feinstein, Bob Graham, and Daschle; Representatives Harman and Goss; and relevant provisions of current statute, if they exist. This report will be updated as warranted. Contents Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 List of Tables Side-by-Side Comparison of Intelligence Community Reforms Proposed by 9/11 Commission, the Bush Administration, Senators Feinstein, Bob Graham and Daschle, and Representatives Harman and Goss; and Current Statute . . 3 Side-by-Side Comparison of 9/11 Commission Intelligence Reforms and Legislative Proposals Introduction The National Commission on Terrorist Attacks Upon The United States (henceforth referred to as the 9/11 Commission)1 on July 22, 2004, issued its recommendations for comprehensive reform of the United States Intelligence Community (IC). The Commission recommended several potentially far-reaching changes, including the creation of the position of National Intelligence Director (NID), and a new National Counterterrorism Center (NCTC). The Commission urged that an NID be given a full range of powers not now currently available to the Director of Central Intelligence (DCI). Those powers would include (1) budget authority; (2) hire and fire authority over senior IC managers; (3) the ability to set standards for the IC’s information infrastructure and personnel.2 Senator Feinstein’s legislation (S. 190) proposes that the position of Director of National Intelligence (DNI) be established. Senator Bob Graham’s bill (S. 1520) introduced broader legislation that contained DNI language identical to Sen Feinstein’s. Senator Daschle (S. 6) also introduced broader security legislation containing almost identical DNI language. All three bills would enhance the DNI’s budget authorities, including permitting the DNI to unilaterally transfer funds and personnel between agencies within the IC during the year the intelligence budget is executed. Under current statute, an IC agency head whose agency would be affected by such a transfer has the authority to prevent such a transfer. The DNI would continue to exercise the limited personnel authorities contained in current statute. Representative Harman’s bill (H.R. 4104) also would establish the position of a DNI with enhanced funding and personnel transfer authorities, albeit more limited that those contained in the Senate bills. Rather than provide the DNI unilateral authority in this area, the Harman language specifies that the President would 1 The National Commission on the Terrorist Attacks Upon the United States, informally known as the 9/11 Commission, was created by congressional legislation and the signature of President George W. Bush in late 2002 (P.L. 107-306, Nov. 27, 2003). It was chartered to prepare a full and complete account of the circumstances surrounding the September 11, 2001 terrorist attacks, including preparedness for and the immediate response to the attacks. The Commission also was mandated to provide recommendations designed to guard against future attacks. 2 See 9/11 Commission Report, National Commission on Terrorist Attacks Upon the United States, July 22, 2004, p. 410. CRS-2 arbitrate any disagreement between the DNI and an agency head over a DNI-initiated funds or personnel transfer, provided the agency head submitted his or her objection to the President in writing. The Harman bill also would “dual hat” the Under Secretary of Defense for Intelligence, who would also serve as the Deputy Director of National Intelligence. The bill also proposes the creation of a Deputy Director of National Intelligence for Operations and a Joint Tasking Organization. Finally, the Harman legislation would provide the DNI some degree of enhanced personnel authorities over those enjoyed by the DCI under current statute. Representative Goss’ (H.R. 4584) legislation adopts a different approach to intelligence reform. Rather than creating the position of NDI, his bill would leave the DCI in charge of both the CIA and the IC, as is currently the case, while stengthening some DCI authorities. For example, it would repeal the current prohibition pertaining to the DCI exercising internal security functions. With regard to funds and personnel transfer authorities, the bill would strengthen some of the DCI’s current authority by providing the DCI the unilateral authority to move funds and personnel. The bill further stipulates that the DCI coordinate such transfers with the Director of the Office of Management and Budget (OMB), rather than obtain his or her approval, as is required under current law. Finally, the Goss bill would provide the DNI some enhanced personnel authorities. CRS-3 Side-by-Side Comparison of Intelligence Community Reforms Proposed by 9/11 Commission, the Bush Administration, Senators Feinstein, Bob Graham and Daschle, and Representatives Harman and Goss; and Current Statute 9/11 Commission Bush Administration Harman (H.R. 4104) Feinstein (S. 190), Bob Graham (S. 1520), Daschle (S. 6) Goss (H.R. 4584) Current Law Comparable proposal, except NID would lead a free-standing agency, not located in the Executive Office of the President. Comparable provision, except NID would be named Director of National Intelligence (DNI). Not located in the Executive Office of the President. Comparable provision, except NID would be named Director of National Intelligence (DNI). Not located in the Executive Office of the President. [S. 6, unlike S. 190 and S. 1520, establishes a tenyear term for the DNI.] Establishes presidentiallyappointed, Senateconfirmed position Director of Central Intelligence (DCI) who would also head CIA. Stipulates that there is a Director of Central Intelligence who also heads CIA. No official proposal, but oppose concept on the record. No provision. Sense of Congress that DNI should be cabinetlevel officer. No provision. No provision. NATIONAL INTELLIGENCE DIRECTOR (NID) Replace current position of Director of Central Intelligence with a Presidentially appointed, Senateconfirmed NID. The NID located in the Executive Office of the President. A separate Director would head the Central Intelligence Agency (CIA). Cabinet Member NID should not be cabinet member. CRS-4 9/11 Commission Bush Administration Harman (H.R. 4104) Feinstein (S. 190), Bob Graham (S. 1520), Daschle (S. 6) Goss (H.R. 4584) Current Law — President’s principal intelligence advisor. — Head Intelligence Community (IC). — Oversee the NCTC. — Head IC. — President’s principal intelligence advisor. — Head IC. — President’s principal intelligence advisor. — Head CIA. — Head IC. — President’s principal intelligence advisor. — Head IC. — President’s principal intelligence advisor. — Head CIA. No proposal. Retains current statutory prohibition preventing CIA director from exercising internal security functions. Retains current statutory provision preventing CIA director from exercising internal security functions. Repeals prohibition preventing DCI as CIA head from exercising internal security functions. Prohibits the DCI as CIA head from exercising internal security functions. General Responsibilities — Oversee national intelligence centers, on specific subjects of interest, including the proposed National Counterterrorism Center (NCTC). — Oversee the Intelligence Community (IC). — President’s principal intelligence advisor. Internal Security Responsibilities NID should directly oversee intelligence collection inside the U.S. CRS-5 9/11 Commission Bush Administration Harman (H.R. 4104) Feinstein (S. 190), Bob Graham (S. 1520), Daschle (S. 6) Goss (H.R. 4584) Current Law NID would have significant input into the development of an intelligence budget. DNI would develop an annual intelligence budget. DNI would develop an annual intelligence budget. DCI would determine the annual intelligence budget. DCI facilitates the development of an annual intelligence budget. No specific proposal, but Administration is reviewing budget authorities. No provision. The DNI’s budget development would include review, approval, and modification of the execution of IC budgets, and personnel and resource allocation. No provision. No provision. No specific proposal, but Administration is reviewing budget authorities. No provision. DNI’s budget development includes managing and overseeing the execution and, if necessary, the modification of the No provision. No provision. BUDGET RESPONSIBILITIES Budget Submission NID should submit a unified budget for national intelligence. Budget Development No recommendation. Budget Execution “Responsibilities” No recommendation. CRS-6 9/11 Commission Bush Administration Harman (H.R. 4104) Feinstein (S. 190), Bob Graham (S. 1520), Daschle (S. 6) Goss (H.R. 4584) Current Law annual National Foreign Intelligence Program (NFIP), including directing the transfer of funds or personnel within the IC. BUDGET AUTHORITIES Budget Approval NID should approve all IC budgets. No specific proposal, but Administration is reviewing budget authorities. Adheres to current statute — DNI approves budgets of all IC elements before incorporation into NFIP Adheres to current statute — DNI approves budgets of all IC elements before incorporation into NFIP DCI approves budgets of all IC elements before provided to President for transmission to Congress. DCI approves budgets of all IC elements before incorporation into NFIP. No specific proposal, but Administration is reviewing budget authorities. Adheres to current statute — No NFIP funds may be reprogrammed without DNI prior approval, except in accordance with DCI-issued procedures. Adheres to current statute — No NFIP funds may be reprogrammed without DNI prior approval, except in accordance with DCI-issued procedures. Adheres to current statute, except eliminates: “except in accordance with DCIissued procedures.” No NFIP funds may be reprogrammed without DNI prior approval, except in accordance with DCI-issued procedures. Budget Reprogramming NID should have reprogramming authority. CRS-7 9/11 Commission Bush Administration Harman (H.R. 4104) Feinstein (S. 190), Bob Graham (S. 1520), Daschle (S. 6) Goss (H.R. 4584) Current Law No specific proposal, but Administration is reviewing budget authorities. Would require approval of Director of Office of Management and Budget (OMB), and transfers could occur for periods up to a year. Would require approval from Director of OMB, and transfers could occur for periods up to a year. Requires that DCI coordinate with OMB director before proceeding with a funds or personnel transfer. No limit on period of transfer. Requires approval from Director OMB, No specific proposal, but Administration is reviewing budget authorities. Would withhold from DNI unilateral fund and personnel transfer authority, but would provide presidential decision on objection by affected agency head to such transfer, provided objection made in writing the President. Would permit DNI to transfer funds and personnel within the IC over the objection of agency heads. Would permit DCI transfer authority. Agency heads could object in writing to the intelligence committees, but could not prevent such transfers. Would allow agency heads to stop DCIinitiated transfers, so long as they state objection in writing to the DCI. Funds and Personnel Transfer No recommendation. and could occur for periods up to a year. Agency Heads Objections to Fund and Personnel Transfers DNI should be permitted to transfer funds and personnel within the IC over the objection of agency heads. CRS-8 9/11 Commission Bush Administration Harman (H.R. 4104) Feinstein (S. 190), Bob Graham (S. 1520), Daschle (S. 6) Goss (H.R. 4584) Current Law No specific proposal, but Administration is reviewing budget authorities. Would not require the DCI to develop personnel transfer procedures with affected agency heads. Would not require the DCI to develop personnel transfer procedures with affected agency heads. Would require the DCI to develop transfer procedures with affected agency heads. Would require the DCI to develop transfer procedures with affected agency heads. No proposal. DNI authorized to transfer funds/personnel from the FBI. DNI authorized to transfer funds/personnel from the FBI. DCI is not authorized to transfer funds/personnel from the FBI. DCI is not authorized to transfer funds/personnel from the FBI. Transfer Procedures No recommendation. FBI Funds & Personnel Transfers NID should be authorized to transfer funds/personnel from the FBI. CRS-9 9/11 Commission Bush Administration Harman (H.R. 4104) Feinstein (S. 190), Bob Graham (S. 1520), Daschle (S. 6) Goss (H.R. 4584) Current Law No specific proposal, but Administration is reviewing budget authorities. NDI would not receive direct appropriation. NDI would not receive direct appropriation. DCI receives direct appropriation. DCI does not receive direct appropriation. No proposal. No provision. No provision. No provision. No provision. DIRECT APPROPRIATION NID Receives Direct Appropriation NID should receive direct appropriation. Currently the Sec Def receives the appropriation and disburses to CIA and national intelligence agencies. BUDGET DISCLOSURE Overall national intelligence budget and budgets of component agencies should be publicly disclosed. CRS-10 9/11 Commission Bush Administration Harman (H.R. 4104) Feinstein (S. 190), Bob Graham (S. 1520), Daschle (S. 6) Goss (H.R. 4584) Current Law NID would play a coordinating role and NID concurrence would be required in recommending IC appointments, but Administration is reviewing hiring and firing authorities. No direct NDI hire/fire authority; However, provision does strengthen NDI’s personnel selection authorities. No NDI hiring/firing authority... would maintain current statute authorities. No NDI hire/fire authority; However, provision would strengthen personnel authority by maintaining current statute requirement for DCI/Secretary concurrence, but adding several agency head positions to which this would apply. Secretaries in affected agencies could still over-ride DNI non-concurrence. No DCI hire/fire authority; However, provision calls concurrence and consultation on personnel selections. HIRE AND FIRE AUTHORITY NID should have hire/fire...authority to approve and submit nominations to the President for CIA, Defense Intelligence Agency (DIA), FBI Intelligence Office, National Security Agency (NSA), National Reconnaissance Office (NRO), and Homeland Security Information Analysis and Infrastructure Protection (IAIP). Joint Recommendations NDI/SecDef joint recommendation to the President on heads of NSA, NRO and NGA. Concurrence DNI/agency head concurrence on other IC appointments, but agency head can override DNI. Concurrence DCI/SecDef concurrence on heads of NSA, NRO and NGA, but SecDef can override. Consultation Dept. Heads consult with DCI on directors of DIA INR, and DOE intelligence units, but agency head decides. CRS-11 9/11 Commission Bush Administration Harman (H.R. 4104) Feinstein (S. 190), Bob Graham (S. 1520), Daschle (S. 6) Mandatory Concurrence on FBI Appointments DNI/FBI Director mandatory concurrence on FBI intelligence appointments. Goss (H.R. 4584) Current Law FBI Discretionary Consultation FBI Timely Notice DNI/FBI Director make joint recommendation on FBI intelligence appointments. AG determines. FBI director gives DCI timely notice of FBI intelligence appointments. DCI not required to consult agency heads in developing IC standards and qualifications DCI required to consult agency heads in developing IC personnel standards and qualifications. Where appropriate, DCI should consider rotated service in IC elements a factor to consider in senior promotions. Personnel Policy NID should set ICwide personnel education and training standards and facilitate assignments across agency lines and at national intelligence centers. No proposal, although NID unlikely to have authority to set standards. NDI would set ICwide personnel education and training standards and require for senior promotion service in more than two positions outside home element. Maintains current statute requiring NDI to consult agency heads in developing personnel standards and qualifications. CRS-12 9/11 Commission Bush Administration Harman (H.R. 4104) Feinstein (S. 190), Bob Graham (S. 1520), Daschle (S. 6) Goss (H.R. 4584) Current Law No proposal. DNI/Secretary of Defense develop integrated communications network and maximize state/local information sharing. No provision. Newly created Assoc. Dir. for info management would recommend to DCI info and technology standards to maximize info sharing. The National Security Council shall develop procedures for effective information sharing. Establish NCTC, but located outside of President’s executive office. Builds on existing TTIC. House outside President’s Executive Office. No provision. No provision. No provision. No provision. Information Sharing Technology Policies NID should establish information technology standards to maximize info sharing and info security. IC STRUCTURE National Counterterrorism Center (NTCT) Should establish NTCT, housed in the Executive Office of the President, and overseen by the NID. Build on existing Terrorist Threat Integration Center (TTIC). CRS-13 9/11 Commission Center for joint operational planning and joint intelligence, staffed by personnel from various agencies. Intelligence Aspects Pool all-source analysis; perform strategic analysis and net assessment. Operations Aspects Perform joint planning; assign operations to lead agencies (State, CIA, FBI, Defense). Track plan implementation. Bush Administration Harman (H.R. 4104) Feinstein (S. 190), Bob Graham (S. 1520), Daschle (S. 6) Goss (H.R. 4584) Current Law CRS-14 9/11 Commission Bush Administration Harman (H.R. 4104) Feinstein (S. 190), Bob Graham (S. 1520), Daschle (S. 6) Goss (H.R. 4584) Current Law No proposal. Establishes WMD center. To be overseen by NDI. No provision. No provision. No provision. CIA director heads CIA. CIA director heads CIA. Ten-year term. Simultaneous service as DNI prohibited. CIA director heads CIA. Simultaneous service as DNI prohibited. DCI heads the CIA, and acting through the CIA, head the IC. DCI heads the IC and CIA. National Intelligence Centers Should establish centers on Weapons of Mass Destruction (WMD), int’l crime and narcotics, China/East Asia, Middle East, Russia/Eurasia. To be overseen by NID. Director of CIA CIA director should focus on rebuilding Agency’s analytic and human intelligence collection capabilities. CRS-15 9/11 Commission Bush Administration Harman (H.R. 4104) Feinstein (S. 190), Bob Graham (S. 1520), Daschle (S. 6) Goss (H.R. 4584) Current Law No proposal. No provision. No provision. No provision. No provision. No proposal. No provision, per se, but DNI/Sec Def to develop integrated communications network and maximize state/local info sharing. No provision. No provision, per se, but newly created Assoc. Dir. for info management would recommend to DCI info and technology standards to maximize info sharing. No provision, per se, but the National Security Council shall develop procedures for effective information sharing. Paramilitary Operations DOD should assume from the CIA responsibility for directing and executing paramilitary operations, clandestine or covert. Information Sharing Establish incentives for sharing; restore better balance between security and shared knowledge. CRS-16 9/11 Commission Bush Administration Harman (H.R. 4104) Feinstein (S. 190), Bob Graham (S. 1520), Daschle (S. 6) Goss (H.R. 4584) Current Law No proposal. No provision. No provision. No provision. No provision. Congress should adopt unspecified oversight reforms. No provision. No provision. No provision. No provision. Senate Resolution 400 — still in effect today — created the Senate Select Committee on Intelligence. House Resolution 658 — still in effect today — created the House Permanent Select Committee on Intelligence. Information Revolution President should lead effort to bring national security institutions into information revolution. Congressional Oversight Congress should consider joint intelligence committee, or single committee in each house, combining authorizing and appropriating. CRS-17 9/11 Commission Bush Administration Harman (H.R. 4104) Feinstein (S. 190), Bob Graham (S. 1520), Daschle (S. 6) Goss (H.R. 4584) Current Law No proposal. No provision. No provision. No provision. No provision. No proposal. No provision. No provision. No provision. No provision. Homeland Security Congress should create a single, principal point of oversight for homeland security. Should be permanent standing committee with bipartisan staff. FBI The FBI should create a specialized and integrated national security workforce consisting of agents, analysts, linguists, and surveillance specialists with a deep expertise in intelligence and national security. CRS-18 9/11 Commission Bush Administration Harman (H.R. 4104) Feinstein (S. 190), Bob Graham (S. 1520), Daschle (S. 6) Goss (H.R. 4584) Current Law No proposal. No provision. No provision. No provision. No provision. No proposal. No provision. No provision. No provision. No provision. Homeland Defense DOD Aspects DOD and its oversight committees should regularly assess adequacy of Northern Command strategies and planning to defend the U.S. against military threats. Dept. of Homeland Security Aspects The Dept. of Homeland Security and its oversight committees should regularly assess types of threats to U.S. and determine adequacy of protection plans and response readiness. CRS-19 9/11 Commission Bush Administration Harman (H.R. 4104) Feinstein (S. 190), Bob Graham (S. 1520), Daschle (S. 6) Goss (H.R. 4584) Current Law No proposal. Establishes Presidentiallynominated, Senateconfirmed Deputy DNI, who also would serve as Under Secretary of Defense for Intelligence. Establishes Presidentiallynominated, Senateconfirmed Deputy DNI. Establishes Presidentiallynominated, Senateconfirmed Deputy DCI. Establishes Presidentiallynominated, Senateconfirmed Deputy DCI. IC MANAGEMENT STRUCTURE NID Deputies The NID should have three deputies — foreign intelligence (CIA head); defense intelligence (under secretary of defense for intelligence);and homeland intelligence (FBI’s exec. asst. dir. or under secr. of homeland security for info. analysis and infrastructure protection) CRS-20 9/11 Commission Bush Administration Harman (H.R. 4104) Feinstein (S. 190), Bob Graham (S. 1520), Daschle (S. 6) Goss (H.R. 4584) Current Law No proposal. Eliminates position. Renames this position Deputy Director of National Intelligence For Community Management. Eliminates position. There is the position for Deputy Director of Central Intelligence For Community Management. No proposal. Establishes deputy DNIs for Operations and for Resources No provision. No provision. No provision. No proposal. No provision. No provision. Would establish eight associate directors for operations; analysis; information management; No provision. Deputy Director of Central Intelligence For Community Management Recommends eliminating the position. Deputy DNIs for Operations & Resources No recommendation. Associate Directors of Central Intelligence No recommendation. CRS-21 9/11 Commission Bush Administration Harman (H.R. 4104) Feinstein (S. 190), Bob Graham (S. 1520), Daschle (S. 6) Goss (H.R. 4584) Current Law language and education; military support; space; science and technology; resources. Assistant Directors of Central Intelligence No recommendation No proposal. No proposal. No proposal. Would establish five assistant directors for central intelligence for: counterterrorism; counterintelligence; couterproliferation; counternarcotics; foreign intelligence. No proposal. No provision. Would establish assistant directors for national intelligence for collection; analysis and production; administration. No provision. Assistant Directors of National Intelligence No recommendation There are assistant directors of central intelligence for collection; analysis and production; administration. CRS-22 9/11 Commission Bush Administration Harman (H.R. 4104) Feinstein (S. 190), Bob Graham (S. 1520), Daschle (S. 6) Goss (H.R. 4584) Current Law No proposal. Establishes a senior advisor to the DNI for Homeland Security. No provision. No provision. No provision. No proposal. Establishes General Counsel to the DNI; and Inspector General of the IC. Establishes General Counsel to the DNI; and Inspector General of the IC. Establishes General Counsel and Inspector General of the IC. There is an a General Counsel and Inspector General for the CIA. No provision. No provision. No provision. Senior Advisor to the DNI for Homeland Security No recommendation. General Counsel and Inspector General No recommendation. National Intelligence Council for Alternative Analysis No recommendation. No proposal. Establishes a National Intelligence Council Alternative Analysis Unit to review each national intelligence estimate produced by the National Intelligence Council. CRS-23 9/11 Commission Bush Administration Harman (H.R. 4104) Feinstein (S. 190), Bob Graham (S. 1520), Daschle (S. 6) Goss (H.R. 4584) Current Law No proposal. Establishes a joint tasking organization within the DNI’s office which would task IC collection. The DNI would appoint tasking directors from CIA, NSA, and NGA. No provision. No provision. No provision. No proposal. Would establish joint No provision. intelligence comptroller appointed jointly by DNI and Sec. Def. Comptroller would report directly to the Under Secretary of Defense and provide both the Sec. Def. and the DNI NFIP financial information insofar as No provision. No provision. Joint Tasking Organization No recommendation Joint Intelligence Comptroller No recommendation. CRS-24 9/11 Commission Bush Administration Harman (H.R. 4104) Feinstein (S. 190), Bob Graham (S. 1520), Daschle (S. 6) Goss (H.R. 4584) Current Law No provision. No provision. No provision. that information would relate to elements of the IC under the jurisdiction of DOD. Joint Acquisition Office No recommendation. No proposal. Would establish a joint IC acquisition office headed by a director jointly appointed by the DNI and Sec. Def.