The National Counterterrorism Center: Implementation Challenges and Issues for Congress

The National Counterterrorism Center: Implementation Challenges and Issues for Congress

Order Code RL32816
CRS Report for Congress
Received through the CRS Web
The National Counterterrorism Center:
Implementation Challenges and Issues
for Congress
Updated March 24, 2005
Todd M. Masse
Specialist in Domestic Intelligence and Counterterrorism
Domestic Social Policy Division
Congressional Research Service ˜ The Library of Congress

The National Counterterrorism Center: Implementation
Challenges and Issues for Congress
Summary
In July 2004, the National Commission On Terrorist Attacks Upon the United
States recommended the establishment of a National Counterterrorism Center
(NCTC) to serve as a center for “... joint operational planning and joint intelligence,
staffed by personnel from the various agencies....” On August 27, 2004, President
George W. Bush signed Executive Order (EO) 13354, National Counterterrorism
Center, which established the National Counterterrorism Center and stipulated roles
for the NCTC and its leadership and reporting relationships between NCTC
leadership and NCTC member agencies, as well as with the White House. In
December 2004, Congress passed the Intelligence Reform and Terrorism Prevention
Act of 2004, P.L. 108-458. Like the preceding executive order, among many other
reform initiatives, the act prescribes roles and responsibilities for the NCTC and its
leadership.
The purpose of this report is to outline the commonalities and potential
differences between EO 13354 and P.L. 108-458, as these conceptual differences
could be meaningful in the implementation process of P.L. 108-458 and/or should the
issue of intelligence reform be re-visited by the 109th Congress. The report examines
some aspects of the law related to the NCTC, including the relationship between the
NCTC’s Director and the Director of National Intelligence (DNI), which may have
implications related to policy and implementation of an effective and efficient
nationally coordinated counterterrorism function. Moreover, the report examines
several issues that may be of interest to Congress as the NCTC matures and evolves,
including potential civil liberties implications of collocating operational elements of
the traditional foreign intelligence and domestic intelligence entities of the U.S.
Intelligence Community. While the appointment and confirmation of a DNI may
resolve some of the uncertainty regarding the NCTC, the NCTC is only one of a
myriad of complex issues that will be competing for the time and attention of the
recently nominated DNI.
An issue for Congress is whether to let the existing intelligence reform law
speak for itself (and let certain ambiguities be resolved during implementation), or
to intervene to address apparent ambiguities through amendments to the law now.
Alternatively, the executive branch may choose to intervene to clarify apparent
ambiguities within P.L. 108-458, or between EO 13354 and P.L. 108-458. In any
event, congressional oversight of the status quo and implementation of the present
law could prove useful.
This product will be updated as necessary.

Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Executive Orders and Statutes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Genesis of the NCTC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Commonalities Between EO 13354 Approach and P.L. 108-458 . . . . . . . . 5
Potential Inconsistencies Between EO 13354 Approach and P.L. 108-458 . 5
NCTC Director Appointment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
NCTC Director Reporting Relationships . . . . . . . . . . . . . . . . . . . . . . . . 6
Issues for Congress . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Options for Congressional Consideration . . . . . . . . . . . . . . . . . . . . . . 11
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Appendix 1: Functional Comparison EO 13354 and P.L. 108-458 . . . . . . . . . . 14
List of Figures
Figure 1. Dir., NCTC Reporting Relationships EO 13354 . . . . . . . . . . . . . . . . . . 7
Figure 2. Dir., NCTC Reporting Relationships P.L. 108-458 . . . . . . . . . . . . . . . 7

The National Counterterrorism Center:
Implementation Challenges and Issues for
Congress
Introduction
Currently there are two legal mechanisms governing the establishment of the
National Counterterrorism Center (NCTC).1 The NCTC was initially established by
Executive Order 13354, signed by President George W. Bush on August 27, 2004.
Section 3 of EO 13354 outlined the functions of the NCTC which included, among
others, (1) serving as the primary organization within the U.S. government for
analyzing and integrating all intelligence possessed by the U.S. government
pertaining to terrorism and counterterrorism, (2) conducting strategic operational
planning for counterterrorism activities, (3) assigning operational responsibilities to
lead agencies for counterterrorism activities, and (4) serving as a shared knowledge
bank on known and suspected terrorists and international terror groups. Less than
two months later, the Intelligence Reform and Terrorism Prevention Act of 2004
(hereinafter the act) became P.L. 108-458. Section 1021 of the act amends the
National Security Act of 1947, as amended (50 U.S.C. 402 et. seq.) to establish
within the Office of the Director of National Intelligence, a National
Counterterrorism Center. The primary NCTC missions outlined in the act are largely
consistent with those stipulated in EO 13354. However, there are some differences
between these two legal mechanisms that may be worthy of congressional
consideration. Moreover, within Section 1021 of the act itself there are some
provisions that may prove problematic if efficient and effective implementation of
a nationally coordinated counterterrorism function is to take place in a timely
manner.
1 For an analysis of the debate and rationale for the establishment of the NCTC, see CRS
Report RL32558, The 9/11 Commission and a National Counterterrorism Center: Issues
and Options for Congress.

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Executive Orders and Statutes2
The President’s constitutional authority to issue executive orders (EO) related
to national security is derived from Article II, Section 2, Clause 1 of the U.S.
Constitution, which identifies, among other powers, that the President serves as the
“... Commander in Chief of the Army and Navy of the United States....”3 In general,
the President can also issue executive orders based on congressionally delegated
statutory authority. The preamble to EO 13354 titled, National Counterterrorism
Center, states that the President’s authority to issue the executive order flows from
the “... authority invested in (the) President as by the Constitution and laws on the
United States of America, including section 103(c)(8) of the National Security Act
of 1947 (as amended)....”4 At the time the executive order was issued this section of
the National Security Act stipulated that the Director of Central Intelligence (DCI),
acting as head of the IC shall “... perform such other functions as the President or the
National Security Council may direct.”5
2 This report is not intended to provide an authoritative legal interpretation of the
relationship between executive orders and statutes. Others have done that elsewhere. See
CRS Report RS20846, Executive Orders: Issuance and Revocations, by T.J. Halstead. See
also Phillip J. Cooper, By Order of the President: The Use and Abuse of Executive Direct
Action, Lawrence, Kansas: University Press of Kansas, 2002. The case of Youngstown
Sheet and Tube v. Sawyer, is often cited as offering an appropriate framework for
determining the constitutionality of an executive order. In this case, the Supreme Court
ruled that an executive order issued by President Truman in 1952, directing the Secretary
of Commerce to seize U.S. steel mills and continue their operation in order to avert a strike,
was unconstitutional. As one of five concurring opinions, Justice Black developed a three-
pronged test against which to weigh the presidential power to issue executive orders. The
first leg of the triad concludes that the presidential power to issue an authoritative executive
order was at its maximum when “... the president acts pursuant to an express or implied
authorization of Congress.” The second leg of the triad stipulates that presidential authority
to issue authoritative executive orders is in “... a zone of twilight in which he and Congress
may have concurrent authority, or in which its distribution is uncertain....” In this area,
presidential power is “... likely to depend on the imperatives of events and contemporary
imponderables rather than on abstract theories of law....” The third leg of the triad
concludes that the president’s power is at its “lowest ebb” when the president “... takes
measures incompatible with the expressed implied will of Congress...for then he can rely
only upon his own constitutional powers minus any constitutional powers of the Congress
over the matter....” Arguably, the President’s decision to issue EO 13354 lies somewhere
between the first and second legs of Justice Black’s test. The majority and minority
opinions may be found at Youngstown Sheet and Tube v. Sawyer 343 U.S. 579, 72 S. Ct.
863, 96 L. Ed. 1153 (1952).
3 Presidential authority to issue executive orders can also be derived from the vesting of
executive power of the U.S. government in the President in Article II, Section 1, clause 1,
and from Article II, Section 3 which states that the President shall take care that the laws “...
be faithfully executed....”
4 Executive Order 13354, “National Counterterrorism Center,” 69 Federal Register 53589,
Sept. 1, 2004.
5 As amended by the Intelligence Reform and Terrorism Prevention Act of 2004, Section
1011(a), the prior Sections 102 through 104 of the National Security Act were replaced with
(continued...)

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One of the issues for the 109th Congress with respect to the implementation of
the functions outlined for the NCTC, or the role and responsibilities of its Director,
is the extent to which the executive order and Intelligence Reform and Terrorism
Prevention Act of 2004 (hereinafter Act) are consistent, or at least not contradictory.
In general, executive orders are interpreted as having the force of law, unless they
contravene existing law.6 Given that the NCTC, its roles and responsibilities, and
those of its Director, have been established in both an executive order and in statute,
it is reasonable for one to conclude that any differences or inconsistencies would be
resolved in favor of the statutory language. While this is true generally, given that
the intelligence reform legislation passed in the 108th Congress is open to
interpretation in some areas,7 the basis for this interpretation could be either the
legislative history of P.L. 108-458 or EO 13354. As a result, legislative oversight
and potential amendments to the act in the 109th Congress are possible. As a means
of understanding the varying conceptual underpinnings for the NCTC, its Director,
and how its Director relates to the established Director of National Intelligence, it
may be useful to outline the areas of commonality and difference between these two
legal authorities.
Genesis of the NCTC
In the aftermath of the terrorist attacks of September 11, 2001, two authoritative
reports concluded that the lack of adequate and timely coordination and
communication within the Intelligence Community (IC) was one factor contributing
to the inability of the IC to detect and prevent the terrorist attacks. The Joint Inquiry
Into Intelligence Community Activities Before and After the Terrorist Attacks of
September 11, 2001 (hereinafter Joint Inquiry) concluded, in part, that
Within the Intelligence Community, agencies did not adequately share
relevant counterterrorism information, prior to September 11. This
breakdown in communications was the result of a number of factors,
including differences in agencies’ missions, legal authorities and
cultures. Information was not sufficiently shared, not only between
Intelligence Community agencies, but also within agencies, and
between the intelligence and law enforcement agencies.8
5 (...continued)
new Sections 102 through 104. Under new Section 102A(f)(7) of the National Security
Act, the newly created Director of National Intelligence is directed, in part, to “perform
such other functions as the President may direct.” Section 1012 of P.L. 108-458 established
the NCTC in the Office of the Director of National Intelligence and sets out its duties and
responsibilities.
6 See Bradley H. Patterson, Jr., The White House Staff: Inside the West Wing and Beyond
(Washington, DC: Brookings Institution Press, 2000).
7 See Walter Pincus, “National Intelligence Director Proves to Be Difficult Post to Fill,”
Washington Post, Jan. 31, 2005, p. A4.
8 See U.S. Congress, Senate Select Committee on Intelligence, and the U.S. House
Permanent Select Committee on Intelligence, Joint Inquiry Into Intelligence Community
Activities Before and After the Terrorist Attacks of September 11, 2001, 107th Cong., 2nd
(continued...)

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While the Joint Inquiry did not recommend the creation of a National
Counterterrorism Center per se, it did recommend the following measures, which are
largely consistent, in a conceptual sense, with the creation of the NCTC: (1) the
development, within the Department of Homeland Security (DHS), of an “all-source
terrorism information fusion center,” and (2) congressional consideration of
legislation, modeled on the Goldwater-Nichols Act of 1986 (P.L. 99-433), to “...
instill the concept of “jointness” throughout the intelligence community.” With
respect to the all-source terrorism information fusion center, the Homeland Security
Act of 2002 (P.L.107-296) created within DHS an Information Analysis and
Infrastructure Protection (IAIP) Directorate which has, among other functions, legal
responsibility for the fusion of federal, state and local intelligence information to
“identify and assess the nature and scope of terrorist threats to the homeland.”9
Subsequently, in his State of the Union Address on January 28, 2003, President
George W. Bush announced the creation of a new organization, the Terrorist Threat
Integration Center (TTIC) designed to “... merge and analyze all threat information
in a single location.” While the IAIP continues to exist within DHS, TTIC and its
fusion functions have been absorbed into the newly-created NCTC Directorate of
Intelligence.10
Like the Joint Inquiry, the National Commission on Terrorist Attacks Upon the
United States (hereinafter The Commission) also found, among other factors,11 that
the lack of information sharing and coordination within the IC led to numerous
missed operational opportunities12 to detect and prevent the attacks. However, it also
expounded on the virtues of “jointness” with respect to operational planning,
unification of effort, and analysis. Seeking “unity of effort across the foreign-
domestic divide” and deliberate avoidance of the proliferation of intelligence
“fusion” centers, one of the Commission’s central recommendations was the creation
of an NCTC which would have responsibilities for both joint counterterrorism
operational planning, and joint intelligence analysis.13 The central tenets of this
8 (...continued)
sess., S.Rept. 107-351, H.Rept. 107-792, p. xvii, Dec. 2002.
9 See Title 6 U.S.C. §121.
10 See Section 119 (I) of the National Security Act of 1947, 50 U.S.C. §402 (I), as amended
by P.L. 108-458 §1021.
11 The Commission outlined what it considered four broad areas of failure — including (1)
imagination, (2) policy, (3) capabilities, and (4) management. See The Final Report of the
National Commission on Terrorist Attacks Upon the United States, chapter 11, pp. 339-360.
12 See The Final Report of the National Commission on Terrorist Attacks Upon the United
States, July 22, 2004, pp. 355-356.
13 As recommended by the Commission, the joint intelligence element of the NCTC would
be “built on the foundation of the existing Terrorist Threat Integration Center....” This has
occurred, as the TTIC has been incorporated into the NCTC’s Directorate of Intelligence.
The NCTC currently has over 300 personnel on board - either as employees or assignees
from over ten different federal agencies, and continues to hire addition staff. See Faye
Bowers, “U.S. Intelligence Agencies Make Headway on Reform, Christian Science Monitor,
Mar. 14, 2005, p. 2.

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recommendation were incorporated into both EO 13354 and P.L. 108-458, albeit in
somewhat different forms.
Commonalities Between EO 13354
Approach and P.L. 108-45814
There is a high degree of consistency between section three of EO 13354
“Functions of the Center,” and the “Primary Missions” provisions of P.L. 108-458.15
Under each of these legal mechanisms, the NCTC is to (1) be the primary
organization for analysis and integration for “... all intelligence possessed or acquired
by the United States Government pertaining to terrorism and counterterrorism ...”16;
(2) conduct strategic operational planning for counterterrorism activities, “integrating
all instruments of national power, including diplomatic, financial, military,
intelligence, homeland security, and law enforcement activities ...” within and among
agencies; (3) assign operational responsibilities to lead departments or agencies, as
appropriate, with the limitation that the Center “... shall not direct the execution” of
operations; (4) serve as a “shared knowledge bank on known and suspected terrorists
and international terror groups, as well as their goals, strategies, capabilities, and
networks of contact and support;” and (5) ensure that agencies “... have access to and
receive” all-source intelligence “needed to execute their counterterrorism plans, or
perform independent, alternative analysis.”
Potential Inconsistencies Between EO 13354
Approach and P.L. 108-458
It is clear that at least with respect to the baseline functions of the NCTC, there
is general agreement between the executive and legislative branches of government.
However, as it pertains to the roles and responsibilities of the Director of the NCTC,
who has yet to be named, and reporting relationships for the Director of the NCTC
to the DNI and to the President, there is less agreement between these two legal
14 Quotes in this section of the report illustrate identical language in the executive order and
the act. The NCTC continues to function under EO 13354 until the DNI is confirmed.
15 See new section 119(d) of the National Security Act of 1947, as amended by P.L. 108-
458, Section 1021.
16 Both EO 13354 and PL 108-458 exclude intelligence pertaining exclusively or purely to
domestic terrorists and domestic counterterrorism from the NCTC’s analytical
responsibility. See EO 13354 Section 3(a) and new Section 119(d)(1) of the National
Security Act of 1947, as amended by Section 1021 of P.L. 108-458. However, the act
allows the NCTC to receive, retain, and disseminate domestic counterterrorism intelligence
to fulfill its responsibilities. See Section 119A(e) of the National Security Act of 1947, as
amended by Section 1021 of P.L. 108-458. This exclusion is generally interpreted to mean
that the NCTC will not be responsible for comprehensive threat analysis concerning terrorist
groups based largely in the United States and engaging in politically motivated violence
within the United States. For example, domestic terrorist groups, such as the Earth
Liberation Front or the Animal Liberation Front, do not generally take direction from any
foreign group. See “The Threat of Eco-Terrorism,” testimony of James F. Jarboe, Domestic
Terrorism Section, Counterterrorism Division, FBI, Before the House Resources Committee,
Subcommittee on Forests, and Forest Health, Feb. 12, 2002.

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mechanisms. The executive order specifies how the President prefers to implement
the functions of the NCTC. However, the act altered some of the processes and
structures underlying the executive order. While the explicit Act will take
precedence legally, ambiguities in implementation may cause confusion, which could
undermine the intent of integrating the counterterrorism function nationally.
There are at least two areas in which there are inconsistencies between the
executive order and the act: (1) the appointment of the Director of the NCTC, and (2)
the roles and responsibilities of the Director of the NCTC, including the reporting
relationships associated with this position. Appendix 1 outlines some of the
potential inconsistencies or factors which may complicate effective implementation
of the NCTC’s mission between the executive order and the act, and within the act
itself, which may be of congressional interest. To the extent that there are
inconsistencies or contradictions between these two legal mechanisms specific
provisions of the act would take precedence over the executive order.
NCTC Director Appointment. First, with respect to the appointment of the
Director of the NCTC, the executive order stipulates that this individual will be
appointed by the DCI with the approval of the President. As a result of P.L. 108-458,
however, the position of DCI, as envisioned in the National Security Act of 1947, as
amended, no longer exists.17 Under the act, the Director of the NCTC is appointed
by the President with the advice and consent of the Senate. Although the NCTC now
has an acting director, former head of the TTIC, John O. Brennan, it is not known at
this time whether he will be asked by the President to assume the statutorily defined
role of Director of the NCTC. It is possible that the nomination of the Director of the
NCTC may not occur unless and until the U.S. Senate confirms Ambassador John
Negroponte, the President’s nominee for DNI.
NCTC Director Reporting Relationships. Second, a possibly more stark
contradiction exists between the executive order and the act with respect to the
reporting relationships for the Director of the NCTC. Under the executive order, the
reporting chain of command for the Director of the NCTC would have the individual
reporting directly to the DCI who, in turn, would report to the President. Even if one
changed the language in the executive order — replacing DCI with DNI — a
substantial difference between the executive order and the act in the reporting
relationships of the Director of the NCTC would remain. Under the executive order,
the DCI would have “... authority, direction, and control over the Center and the
Director of the Center.” In contrast, the act has the Director of the NCTC’s reporting
responsibilities bifurcated. According to P.L. 108-458, the Director of the NCTC
reports to the DNI with respect to (1) budget and programs of the NCTC, (2)
activities of the NCTC’s Directorate of Intelligence, and (3) the conduct of
intelligence operations implemented by other elements of the IC. However,
according to the act, the Director of the NCTC also reports directly to the President
17 Sections 102-104 of the National Security Act of 1947 were deleted and replaced with
new language regarding the new position of DNI. Unlike the former DCI who held
simultaneously the positions of DCI and the Director of the Central Intelligence Agency, the
DNI is prohibited from concurrently serving as the Director of the CIA, or any other element
of the IC. (See P.L. 108-458, Title I, §102).

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with respect to the “... planning and progress of joint counterterrorism operations
(other than intelligence operations).” Figures 1 and 2 depict these reporting
relationships.
Figure 1. Dir., NCTC
Figure 2. Dir., NCTC Reporting
Reporting Relationships EO
Relationships P.L. 108-458
13354
P.L. 108-458
Exec. Order 13354
President
President
DNI
DCI
Dir., NCTC
Dir.,NCTC
Issues for Congress
The differences between the executive order and Act are summarized here only
to highlight alternative perspectives with regard to the NCTC. Should Congress
consider amending P.L. 108-458, it may want to examine elements within the act that
may contribute to a lack of clarity within the NCTC and the broader IC. While
clarity can be a byproduct of experience, specific guidance may prove useful in
facilitating the more rapid development of effective and efficient operations.
There are at least two areas within Section 1021 of P.L. 108-458 that may be
worthy of additional congressional scrutiny. The first concerns the bifurcated
reporting relationships the act outlines for the Director of the NCTC. Through this
mechanism the Director of the NCTC reports directly to President with regard to “the
planning and progress of joint counterterrorism operations (other than intelligence
operations).” This language could be construed to mean that under the act the
Director of the NCTC will be reporting to the President on the planning and progress
of joint military counterterrorism operations, a role traditionally reserved to
components of the Department of Defense (DOD). As noted earlier, the Director of
the NCTC also reports to the DNI with respect to (1) the budget and programs of the
NCTC; (2) the activities of the NCTC’s Directorate of Intelligence; and (3) the
conduct of intelligence operations implemented by other elements of the IC. The act,
then, differentiates between joint counterterrorism “intelligence operations” and other
(presumably military) counterterrorism operations. This bifurcated structure was
intentionally designed to reflect what the Commission and the Congress believed

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should be the dual missions of the NCTC. Its first mission is to integrate and analyze
all counterterrorism intelligence available to U.S. government departments and
agencies and to serve as a knowledge bank on known and suspected terrorist and
international terrorist groups. Given that this function is directly germane and limited
to intelligence-related activities, the act stipulates that the Directorate of Intelligence
report to the DNI. It is the second function — strategic counterterrorism operational
planning — that gave rise to the unique reporting structure that has the Director of
the NCTC reporting directly to the President for planning and progress of joint
counterterrorism operations. According to Senator Joseph I. Lieberman, a cosponsor
of the act and the ranking member of the then named Senate Governmental Affairs
Committee, the strategic operational planning function is an “...an Executive branch
wide planning — which is beyond the DNI’s jurisdiction.”18
While such reporting mechanisms and processes may be necessary to achieve
“jointness,” it is not implausible to foresee potential conflicts between the DNI and
the Director of the NCTC concerning who is the President’s primary advisor with
respect to joint counterterrorism operational initiatives. Is the role of the DNI as “...
principal adviser to the President, to the National Security Council, and the
Homeland Security Council for intelligence matters relating to national security ...”19
undermined by establishing a separate reporting channel to the President for certain
counterterrorism operations? Moreover, given that the Director of the NCTC is a
confirmed Presidential appointee, a question could be raised as to whether the
individual will serve more of a policy advisory role to implement the
Administration’s agenda, or will serve as an unbiased professional civil servant.20
Some believe, however, that the NCTC Director will have greater analytical
independence and objectivity because the incumbent will be confirmed by the
Senate.21
A second issue which may be of interest to appropriate congressional oversight
committees is the collocation of what has traditionally been foreign and domestic
intelligence operators. In general, national security professionals look favorably upon
the concept of “jointness,”22 at least in part as a result of the positive results yielded
from the Goldwater-Nichols Department of Defense Reorganization Act of 1986.
This favorable predisposition generally extends to the intelligence arena, especially
with respect to joint intelligence analysis projects. Alternative analysis, “red
18 See Congressional Record, December 8, 2004, Senate consideration of the conference
report to accompany S.2845. Senator Lieberman continued that the then-proposed NCTC
Directorate of Strategic Operational Planning would conduct planning for “...the entire
Executive branch — ranging from the combatant commands, to the State Department, to the
FBI’s Counterterrorism Division to the Department of Health and Human Services to the
CIA.”
19 See P.L. 108-458, Title I, Subtitle A, Establishment of a Director of National Intelligence.
20 See Walter Pincus, “The Hill, Bush, Differ on Counterterror Center,” in Washington Post,
Nov. 28, 2004, p. A6.
21 See remarks of Senator Carl Levin in Congressional Record, p.S9882, Sept. 29, 2004.
22 While collocation may facilitate “jointness,” without harmonization of business practices,
training, and perhaps even doctrine, it will not, in and of itself, yield jointness.

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teaming,” and competing analysis conducted creatively and without undue
duplication, are all generally thought to result in better analysis. However, with
respect to joint intelligence operations and the integration of traditionally foreign and
domestic intelligence operations, there seems to be less of a consensus. At a macro
level, it is clear that coordination23 in intelligence operations is a common good. Yet,
the legal mechanisms and regulations that underlie and guide foreign intelligence
collection and domestic intelligence collection, particularly as it relates to U.S.
persons,24 are substantially different.25
The act defines strategic operational planning as “... the mission, objectives to
be achieved, tasks to be performed, interagency coordination of activities, and the
assignment of roles and responsibilities.”26 The executive order does not directly
define strategic operational planning, other than to state generally that it involves the
integration of all instruments of national power. As stated above, under both the
23 Jurisdictions defining which IC agency may have the lead in certain intelligence
operations can be nebulous. For example, both the FBI and the Central Intelligence
Agency’s domestically-oriented division have jurisdiction to collect foreign intelligence
within the United States. See EO 12333, Section 1.8 for Central Intelligence Agency
responsibilities, and Section 1.14 for FBI responsibilities. Depending on circumstances and
location of an operation, one agency or the other may be in the lead, with the support of the
other. However, transcending questions about which agency is lead and which is support
is the national imperative for timely coordination and sharing of the information between
IC agencies involved in CT operations. See “Spies Clash as FBI Joins CIA Overseas:
Sources Talk of Communication Problem in Terrorism Role,” the Associated Press, Feb. 15,
2005. See also Richard B. Schmitt and Greg Miller, “FBI In Talks to Extend Reach,” Los
Angeles Times, Jan. 28, 2005.
24 The Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. §1801 et seq.), as amended
defines U.S. persons as “...a citizen of the United States, an alien lawfully admitted for
permanent residence (as defined in section 101(a)(20) of the Immigration and Nationality
Act), an unincorporated association a substantial number of members of which are citizens
of the United States or aliens lawfully admitted for permanent residence, or a corporation
which is incorporated in the United States, but does not include a corporation or an
association which is a foreign power, as defined in subsection (a) (1), (2), or (3).
25 The roles and responsibilities of the IC are set forth in numerous legal mechanisms
including, but not limited to, The National Security Act of 1947, as amended; certain
sections of Titles 10 and 50 of the U.S. Code; numerous classified and unclassified
executive orders, such as 12333, titled United States Intelligence Activities; and a series of
classified and unclassified regulations and guidelines known as DCI Directives. In addition
to some of the aforementioned IC guidelines, the FBI is also required to execute its
intelligence activities in a manner that is consistent with, among other regulations, the (1)
Attorney General Guidelines for FBI National Security Investigations and Foreign
Intelligence Collection (U), and (2) Attorney General Guidelines on General Crimes,
Racketeering Enterprises, and Terrorism Enterprise Investigations. For an assessment of the
potential tradeoffs between civil liberties and domestic intelligence collection, see Kate
Martin, “Domestic Intelligence and Civil Liberties,” SAIS Review, vol., XXIV, no. 1
(Winter-Spring 2004). For an assessment of the differences between law enforcement and
intelligence, see Stuart A. Baker, “Should Spies Be Cops?” in Foreign Policy, Winter
1994/95.
26 See Section 119(j)(2) of the National Security Act of 1947, as amended by P.L. 108-458,
Section 1021, 50 U.S.C. §402 (j)(2).

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executive order and the act, the NCTC itself is expressly prohibited from executing
operations; it assigns roles and monitors overall counterterrorism operational
progress. It is explicitly stated in the executive order that “... each agency
representative to the Center, unless otherwise specified by the DCI, shall operate
under the authorities of the representative’s agency.” That is, while strategic
planning may be joint, if the NCTC Director assigns the FBI, CIA, and Department
of Defense certain counterterrorism operational responsibilities, each agency operates
under its own legal authorities. While it may be implicit, no such similar and explicit
legal authority guidance was provided in P.L. 108-458.
The FBI has physically moved a substantial portion of its operational and
analytical counterterrorism personnel from FBI Headquarters to offsite locations in
the interest of closer coordination with the rest of the IC’s counterterrorism entities.27
While not necessarily “integrated” into the NCTC, these individuals are now
“collocated” with elements of the NCTC. As envisioned by the Commission and
P.L. 108-458, this collocation could yield substantial analytical dividends,
particularly when information systems are integrated in a manner that allows for
closer analytical collaboration across the IC. The collocation of IC personnel
engaged in counterterrorism operations may also lead to substantially improved and
informed counterterrorism operations. Human assets recruited by the IC can be
highly mobile. As these individuals move between the United States and overseas
locations, coordination amongst and between IC agencies having sole or shared
jurisdiction can add substantial value to an operation, and avoid inefficient as well
as potentially embarrassing operational overlaps. Recent media coverage suggests
tension between the FBI and the domestic intelligence arm of the CIA on domestic
intelligence activities.28 While a distinction must be made between collocation,
which implies reliance on existing legal authorities, and integration, which implies
the creation of a new body of law and regulations, the possibility exists that
unintentional mission creep and operational zeal could lead to situations in which
rules designed to guide traditional foreign intelligence collection may be applied to
U.S. persons. That is, the civil liberties of U.S. persons could be at risk if domestic
intelligence collection is directed against them in a manner that may not be consistent
with or constrained by appropriate Attorney General Guidelines.29
Finally, with respect to the resolution of disputes between the NCTC and its
constituent agencies, the act stipulates that the DNI shall resolve conflicts. In the
event that the heads of constituent agencies disagree with the DNI’s resolution, they
may appeal the resolution to the President. Given the NCTC’s role to “... monitor the
implementation of strategic operational plans,” it is possible to envision conflicts
27 Approximately $35.5 million was appropriated for the “... relocation of portions of the
Counterterrorism Division ...,” in the FY2005 Consolidated Appropriations Act, P.L. 108-
447.
28 See “Spies Clash as FBI Joins CIA Overseas: Sources Talk of Communication Problem
in Terrorism Role,” the Associated Press, Feb. 15, 2005. See also Richard B. Schmitt and
Greg Miller, “FBI In Talks to Extend Reach,” Los Angeles Times, Jan. 28, 2005.
29 The Foreign Intelligence Surveillance Act of 1978, as amended (50 U.S.C §1801 et seq.)
authorizes, under certain circumstances and subject to a court order, electronic surveillance
directed against U.S. persons.

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between the NCTC and an agency with respect to what exactly constitutes
“implementation” and how, specifically, operational success is defined. This may be
exacerbated by the act’s distinction between joint intelligence counterterrorism
operations, and joint counterterrorism operations other than intelligence. Regardless,
resolution of potential disputes within the NCTC is one area that may be worthy of
congressional oversight.
Options for Congressional Consideration. An issue for Congress is
whether to let the existing intelligence reform act speak for itself (and let certain
ambiguities be resolved during implementation), or to intervene to address apparent
ambiguities through amendments to the act now. Alternatively, the Executive Branch
may choose to intervene to clarify apparent ambiguities within P.L. 108-458 or
between EO 13354 and P.L. 108-458.30 In any event, congressional oversight of the
status quo and implementation of the present act could prove useful.
Should Congress amend intelligence reform legislation in the 109th Congress,
or introduce new legislation (possibly through the annual intelligence authorization
process) related to the NCTC, there are at least two areas in which it might consider
action. The first concerns the reporting relationships of the Director of the NCTC to
the DNI and to the President. While the coordination of planning for
counterterrorism operations is necessarily an executive branch wide endeavor, the
daily implementation of such practice remains a relatively nebulous function and
may, therefore, be a topic for close congressional oversight. Some might argue that
if a close professional and personal bond develops between the President and the
DNI,31 then a direct reporting chain for the Director of the NCTC to the President for
certain joint operations relating to counterterrorism is unlikely to undermine the
DNI’s new authority. The frequency, substance, and duration of the direct meetings
between the President and the Director of the NCTC may pale in comparison to those
between the President and the DNI. However, it is possible that confusion could
develop because the act differentiates between intelligence joint counterterrorism
operations and joint counterterrorism operations (other than intelligence operations)
— presumably military operations. This distinction may prove difficult to make in
practice because, generally, even joint military counterterrorism operations require
sound tactical intelligence to achieve their objectives.
Second, Congress may wish to consider adding to its expressed prohibition for
the NCTC to execute operations, language which would explicitly clarify the legal
authorities of constituent NCTC members with respect to counterterrorism
operations. Alternatively, Congress could consider specifically stating in law that the
30 See comments of Rand Beers, former National Security Council official, in Walter Pincus,
“Negroponte’s First Job Is Showing Who’s Boss: Intelligence Director Must Assert
Authority, Experts Say,” in Washington Post, Mar. 1, 2005, p. A13.
31 President Bush stated in his press briefing announcing the nomination of the current U.S.
Ambassador to Iraq John Negroponte as DNI that his nominee: “... will have access on a
daily basis in that he’ll be my primary briefer....” See White House Press Conference, Feb.
17, 2005, at [http://www.whitehouse.gov/news/releases/2005/02/print/20050217-2.html].

CRS-12
Privacy and Civil Liberties Oversight Board established in P.L. 108-458,32 has
explicit responsibility for oversight of the joint counterterrorism operations of the
NCTC, particularly when these operations involve U.S. persons.
Finally, another potential area for congressional scrutiny may be the appropriate
arrangements and congressional committees that have jurisdiction over the activities
of the NCTC. While the Directorate of Intelligence’s activities are largely bounded
by traditional intelligence functions, such as the setting of collections requirements,
collection of raw intelligence, and the conduct of intelligence analysis, the
Directorate of Strategic Operational Planning’s activities go beyond intelligence. As
such, the universe of committees having oversight over the executive branch wide
functions associated with strategic operational planning may exceed those that will
conduct oversight over the NCTC’s Directorate of Intelligence. One could envision
a situation in which, not unlike the activities of the Department of Homeland
Security, the number of committees claiming jurisdiction over the NCTC’s Director
of Strategic Operational Planning could be substantial. The challenge would then be
to coordinate congressional oversight in a manner that is rigorous and meaningful
without unduly burdening NCTC leadership.
Conclusion
The ostensible purpose for the creation of intelligence “centers,” including the
NCTC, is to bring together the disparate elements of the IC having different
intelligence foci and missions in order to achieve common intelligence and national
security objectives. Given the positive results of “jointness” achieved in the armed
forces context as a result of the Goldwater-Nichols Defense Reorganization Act of
1986, there is an inherent attraction to apply such “best practices” to the IC. Yet the
cohesive integration of functions across the IC requires relatively clear guidance, or
at least the absence of contradictory or confusing authorities. With respect to the
NCTC, the act outlines some authorities which may cause a lack of clarity, which
may, in turn, undermine the effective and efficient implementation of a truly national
approach to counterterrorism. The bifurcated reporting relationships the act outlines
for the Director of the NCTC, ill-defined distinctions between joint counterterrorism
intelligence operations and joint counterterrorism operations (other than
intelligence), as well as the authority of the NCTC to define operational success and
have the tools necessary to ensure compliance with its joint plans, are all areas in
which unclear authority could lead to inefficient business practices. Professionalism,
and a high degree of commitment among the counterterrorism cadre assigned to the
NCTC, may go a long way toward ameliorating these ambiguities and thus negate the
need for legislative action. It is also possible, however, that the ambiguities outlined
in the act may only complicate the inevitable growing pains associated with
establishing an effective, nationally coordinated counterterrorism intelligence effort.
32 See Title I, Subtitle F - Privacy and Civil Liberties, in P.L. 108-458. As currently drafted,
the act would likely allow such oversight, as it is stated that the Board “... shall continually
review, regulations, executive branch policies, and procedures (including implementation
of such regulations, policies, and procedures) ... to ensure that privacy and civil liberties are
protected.”

CRS-13
As such, narrowly targeted and clarifying oversight guidance or legislative remedies
may assist the NCTC in reaching optimal effectiveness in the least amount of time.

CRS-14
Appendix 1: Functional Comparison EO 13354 and P.L. 108-458
Executive Order
Issue
P.L. 108-458
Consistency
Implications
13354
NCTCFunctions
(1) Analysis and integration of
Identical language
Consistent
Experience in implementation of this core
intelligence; (2) coordination
mission may have important policy
of strategic operational
implications. For example, as the NCTC
planning (3) assigning
is an Intelligence Community entity
operational responsibilities to
staffed largely with detailees, it has the
agencies, (4) serving as a
burden of proving that it will put the
shared knowledge bank; and
Community’s interests above those
(5) ensuring agencies have
arguably more parochial interests of its
appropriate access to
constituent member agencies. The burden
intelligence
of this responsibility may lie mostly with
NCTC leadership, as well as with the
Director of National Intelligence. In short,
the NCTC may need to protect its
“jointness.”
Limitations
Does not execute operations
Identical language
Consistent
N/A
Appointment of
DCI appoints with approval of
Appointed by
Inconsistent
P.L. 108-458 supercedes. Within the act,
Director, NCTC
President
President with
does the fact that the Director, NCTC is a
advice and consent
Senate approved presidential nominee
of Senate
make the Director, NCTC more of a
principal policy aide than expert staff?

CRS-15
Executive Order
Issue
P.L. 108-458
Consistency
Implications
13354
Duties and
(1) Access information
Identical with the
Some
Does the direct reporting role of the
Responsibilities
necessary for NCTC function;
exception of
inconsistencies
NCTC Director to the President for
Director, NCTC
(2) correlate, analyze, evaluate,
establishing
intelligence operations relating to
integrate and produce reports
information
counterterrorism matters potentially
on terrorism information; (3)
systems. In
undermine the authority of the DNI?
disseminate terrorist
addition to the
information to the President,
duties outlined in
Vice President in the
the EO, the act also
performance of executive
includes the
functions; (4) support DoJ and
following
DHS in dissemination mission;
provisions: (1)
(5) establish information
Serve as principal
systems and architecture; (6)
intelligence adviser
assist DCI in establishing and
to the DNI on
prioritizing intelligence
intelligence
collection requirements
operations relating
relating to CT; and (7) identify
to CT; (2) provide
specific CT planning efforts.
strategic operational
plans for civilian
and military CT
efforts; (3) advise
DNI on extent to
which NCTC
budget meets
presidential

CRS-16
Executive Order
Issue
P.L. 108-458
Consistency
Implications
13354
Operations and
Specifies that “...each agency
None
Possibly
Collocation is not necessarily integration.
Legal Authorities
representative to the
inconsistent
However, could potential and
Center...shall operate under the
unintentional mission creep and
authorities of the
operational zeal lead to situations in which
representative’s agency.”
rules designed to guide traditional foreign
intelligence collection may be applied to
U.S. persons?
Reporting
Director, NCTC reports to
Director, NCTC
Inconsistent
Does the direct report role of the Director,
Relationships
DCI.
reports directly to
NCTC undermine the authority of the
Director, NCTC
President for
DNI?
“planning and
progress of joint CT
operations (other
than intelligence
operations).”
Reports to DNI on
all other matters.