Order Code RS21310
Updated November 6, 2002
CRS Report for Congress
Received through the CRS Web
The Intelligence Community and 9/11:
Proposals for an Independent Commission
Richard A. Best, Jr.
Specialist in National Defense
Foreign Affairs, Defense, and Trade Division
Summary
There is significant support for an independent commission to assess the
performance of the U.S. Intelligence Community in regard to the September 11, 2001
attacks, despite the fact that a joint inquiry by the Senate and House intelligence
committees has been underway since early 2002. In separate legislation, the House and
Senate have endorsed proposals for an independent commission. Proponents argue that
an investigation by persons without ties to intelligence agencies could provide greater
assurance of an impartial assessment that could lead, if necessary, to improvements in
the nation’s intelligence effort. Opponents argue that it would usurp the responsibilities
of congressional intelligence committees, burden senior intelligence officials, and risk
exposure of intelligence assets deeply involved in the current struggle against terrorism.
This report will be updated as circumstances warrant.
Introduction
On July 24, 2002, for the second time in two years, the House of Representatives
voted to establish an independent commission to investigate the performance of the U.S.
Intelligence Community in regard to the September 11, 2001 terrorist attacks on the
World Trade Center and the Pentagon. In 2001, the House had included a provision to
establish a commission on national security readiness in its version of the FY 2002
Intelligence Authorization bill (H.R. 2883), but the provision was dropped in conference.
The 2002 vote reflected the concerns of constituents as well as a view among some
Members that little progress is being made by the two intelligence committees in
determining whether, or not, there had been an “intelligence failure.”
The proposal, in the form of an amendment offered by Representative Roemer, to
the FY2003 Intelligence Authorization bill (H.R. 4628), was opposed by Representative
Goss, the Chairman of the House Permanent Select Committee on Intelligence (HPSCI)
and some other Members of the Committee, but was adopted by a 219-188 roll call vote
after extended debate in the early hours of July 25. On September 24, the Senate adopted
(by a vote of 90-8) an amendment to the H.R. 5005, the Homeland Security bill, to
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The Library of Congress
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establish an independent commission to investigate the 2001 terrorist attacks. Thus, since
September 2002, there have been two legislative vehicles, the intelligence authorization
bill (H.R. 4628) and the homeland security measure (H.R. 5005), to which provisions
establishing an independent commission on the 9/11 attacks could be attached.
Background
Prior to September 11, 2001, the Intelligence Community understood that a serious
terrorist threat existed from the Al-Qaeda organization and other international terrorists.
However, the nature and timing of attacks and the use of civilian aircraft were not
anticipated and no specific warnings had been issued. The Bush Administration quickly
launched efforts to eliminate the Al Qaeda infrastructure in Afghanistan and elsewhere–a
campaign that required the close involvement of intelligence agencies–but did not initiate
a comprehensive assessment of the record of the performance of intelligence agencies.
Many in Congress have supported a broader inquiry, questioning why U.S. intelligence
agencies could not have provided better and more specific warning of the attacks that cost
more American lives than were lost at Pearl Harbor on December 7, 1941.
Some Members favored an independent commission to investigate the performance
of intelligence agencies while others believed that Congress itself should undertake an
investigation. On October 5, 2001 the House voted to establish a commission to review,
with respect to the events of September 11, “the national security readiness of the United
States to identify structural impediments to the effective collection, analysis, and sharing
of information on national security threats, particularly terrorism.” The Senate did not
include a similar provision in its version of intelligence authorization legislation, and
conferees did not include the House-passed provision in the final version that was
subsequently enacted (P.L. 107-108).
On February 14, 2002 the House and Senate intelligence committees announced the
establishment of an unprecedented joint inquiry. The official press release stated that,
“Among the purposes of this joint effort is ascertaining why the Intelligence Community
did not learn of the September 11th attacks in advance, and to identify what, if anything,
might be done to better the position [of] the Intelligence Community to warn of and
prevent future terrorist attacks and other threats of the 21st Century. The Committees may
seek to legislate changes to remedy any systemic deficiencies revealed by the joint
inquiry.” The House authorized $1.6 million (H.Res. 359) for the inquiry and the Senate
approved a similar amount. House funding extends through January 3, 2003.
The work of the congressional Joint Inquiry has not fully allayed concerns about the
performance of intelligence agencies. The Inquiry, which is being undertaken by some
23 professional staff, has kept a low public profile. Public hearings were originally
planned for June 2002, but have been postponed. The original staff director, L. Britt
Snider, a former counsel of the Senate Intelligence Committee and Inspector General of
the Central Intelligence Agency (CIA), resigned in April 2002 amid media reports over
controversies surrounding his staffing decisions. His replacement, Eleanor Hill, a former
Inspector General of the Department of Defense (DOD), was not appointed until May
2002. It is not clear whether the Inquiry will complete its work by the end of 2002.
The amendment to H.R. 4628 to establish a commission, adopted by the House in
July, is focused on intelligence agencies, and does not include law enforcement agencies
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(perhaps because of a need to avoid a jurisdictional point of order during floor
consideration). The proposed commission would review the implementation by the
Intelligence Community of the completed findings and recommendations of the current
congressional Joint Inquiry, and other reports and investigations. It would make further
recommendations and review resource allocations, and other prioritizations of the
Intelligence Community for counterterrorism; it would also review and recommend
changes to the organization of the Intelligence Community “in particular the division of
agencies under the jurisdiction of the Secretary of Defense and the Director of Central
Intelligence.” It would submit reports only after the results of the Joint Inquiry become
available. The Commission would be composed of 10 persons, three appointed by the
Senate majority leader, two by the Senate minority leader, three by the Speaker, and two
by the House minority leader. Not more than five members would be of the same political
party and at least two members shall be members of the family or a representative
designated by a family or families of an individual who died in the September 11 attacks.
It would be in existence for some 18 months.
The amendment to H.R. 5005, sponsored by Senator Lieberman and approved by the
Senate on September 19, 2002, is somewhat broader. The commission it would establish
would investigate not only intelligence agencies, but also law enforcement agencies, the
conduct of foreign policy, immigration and border control issues, financial transactions
of terrorist groups, commercial aviation, and related concerns. It would evaluate lessons
learned from other inquiries, and submit findings regarding the performance of the
Federal Government, state and local governments, and nongovernmental entities,
conclusions, and recommendations. The commission would be composed of 10
members–three each appointed by the majority leader of the Senate and the Speaker of the
House, two each appointed by minority leader of the Senate and the minority leader of the
House. Not more than five of the members would be from the same political party. The
Commission would be in existence for 18 months.
Either proposal would establish a commission composed of non-government officials
or employees. Both proposals express a sense of the Congress that commission members
should be prominent U.S. citizens with national recognition. The House version specifies
experience in governmental service and intelligence gathering; the Senate approach also
includes provisions suggesting a significant depth of experience in law enforcement, the
armed services, legal practice, public administration, commerce including aviation
matters, and foreign affairs for commission members. Some observers believe that the
rigid requirements for partisan balance assume that the commission might become
politicized and do not seem to envision a commission emphasizing professional expertise.
As reflected in the lengthy House debate of July 25, congressional views on the need
for an independent commission differ. Advocates of an independent commission argue
that, given the magnitude of the losses suffered on September 11, an outside assessment
of the performance of intelligence agencies is necessary to maintain the public credibility
of the Intelligence Community. Furthermore, they suggest, the close and intimate ties
between intelligence agencies and the two intelligence committees will not provide the
degree of accountability that the public expects. Some supporters of an independent
commission further perceive a need for a major reorganization of the Nation’s intelligence
effort, including steps to reduce duplication of effort and reconsider the status of some of
the large intelligence agencies as combat support agencies of DOD.
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Opponents of establishing an independent commission stress that the basic
investigation of the 9/11 attacks can best be undertaken by congressional committees
working within oversight responsibilities long established under the rules of the House
and Senate. They point out that the ongoing investigation will soon move into a public
phase and produce for the public a comprehensive assessment of the record of the
Intelligence Community. The intelligence committees, it is argued, are in the best
position to undertake investigations of highly sensitive activities, preventing the
unauthorized disclosure of classified information and protecting intelligence sources and
methods. The Administration has made clear its opposition to a wide-ranging
investigation with extensive public hearings that could lead to a media circus and would,
in its view, jeopardize the ongoing effort against international terrorism, and burden
senior officials with duplicative requests for information and testimony. Some observers
note the apparent strength of Administration sentiment on this issue, and suggest that a
veto of legislation proposing an independent commission could be difficult to override.
Although there were indications in October that an agreement on an independent
commission had been reached, the effort broke down prior to the November 5 elections.
Reportedly, there are differences between the Administration and some Members and
9/11 family representatives over the number of commission members that would be
required to issue subpoenas and whether the executive branch would appoint the
chairman. Observers suggest that pressure to pass an intelligence authorization bill could
encourage compromise on provisions to establish an independent commission.
Possible Approaches
Commentators have suggested that, should Congress proceed with legislation
establishing an independent commission, there are three different sets of concerns that
might be considered. First is the immediate background to the attacks last year; what
evidence was collected, what analysis was performed, what warning were given. Second,
is the structure of the Intelligence Community; how well is it adapted to the effort against
international terrorism? Third is the larger question of the relationship of intelligence
agencies to law enforcement, especially in situations involving U.S. citizens/persons.
Immediate Background of 9/11. The Joint Inquiry is in the process of gathering
vast amounts of data concerning the individuals who carried out the 9/11 attacks, their
associations, their efforts to attend flight schools, the sources of their financial support,
etc. Most observers acknowledge that the ongoing investigation is very extensive and is
likely to encompass most of the documentary records and include interviews with almost
all intelligence officials who were responsible for collecting, analyzing, and disseminating
information about terrorist attacks. The executive branch reportedly has been
forthcoming, albeit after prodding. Although it is possible that some important data will
be missed, most observers believe the Joint Inquiry effort will be reasonably thorough.
Many observers also acknowledge as legitimate the concerns of the Administration that
intelligence officials not be subject to repeated and duplicative interviews and document
requests. On the other hand, some observers argue that having a separate set of reviewers,
without ties to intelligence agencies or to the congressional committees, assess the
collected data and undertake supplementary interviews would serve to reassure the public.
Intelligence Organizational Issues. The modern U.S. Intelligence Community
was created in the context of the Cold War; it was designed to support military strategies
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and operations ranging from limited war to all-nuclear exchanges. Despite considerable
attention in recent years to enhancing counterterrorism capabilities, some observers
believe that current organizational relationships are not optimized for post-Cold War
missions. There were two major reviews of intelligence organization in the mid-
1990s–the Aspin-Brown Commission and the Intelligence Community-21st Century
review undertaken by the House Intelligence Committee in the 104th Congress. Both
addressed proposals suggesting that the Director of Central Intelligence (DCI) should
have direct line control of the major intelligence agencies now part of DOD–the National
Security Agency (NSA), the National Reconnaissance Office (NRO), and the National
Imagery and Mapping Agency (NIMA). This approach was viewed skeptically by others,
including senior Defense Department officials and some members of the congressional
armed services committees. In October 1996 Congress passed legislation (P.L. 104-293)
that provided greater coordinative authority for the DCI without giving him line control.
A Senate-confirmed position of Deputy DCI for Community Management was established
and subsequently filled by a longtime DOD official, Joan Dempsey. Little information,
however, is publicly available regarding the implementation of this legislation. Some
observers continue to argue that the expanded DCI statutory authorities are inadequate.
The incoming Bush Administration established two separate commissions to look
into questions of intelligence organization–one composed of current intelligence officials
and the other of outsiders, headed by former National Security Adviser Brent Scowcroft.
Brief media reports indicate that the latter review has proposed the transfer of the DOD
agencies to the control of the DCI, but that the initiative has been put on hold given the
intense focus on counterterrorism and the strong opposition of Defense Secretary
Rumsfeld. The FY2003 Defense Authorization bill (H.R. 4546), as passed by the Senate,
includes a provision to establish an Under Secretary of Defense for Intelligence, a new
position intended to ensure a continued strong DOD role in national intelligence.
Some observers believe that only an outside commission could make an objective
assessment of the best approach to organizing the Intelligence Community for current and
anticipated missions. They note that there is little public information about the
management processes of the Intelligence Community, and that, in recent years few open
hearings have been held concerning resource management issues. They argue that a
commission could make information available about resource allocations in unclassified
forms that would enhance congressional and public understanding and could be charged
with presenting a plan for reorganization that would serve as the basis for legislation.
Other observers, however, argue that major reorganization of the Intelligence
Community is not needed and that a commission would be superfluous. Some note that
FY1997 legislation gave the DCI increased statutory authorities to manage intelligence
resources throughout the Federal Government, and that not enough time has passed to
determine if these provisions are sufficient. Such judgments, they argue, can best be
made by congressional intelligence, armed services, and appropriations committees.
The Intelligence-Law Enforcement Relationship. One of the most striking
phenomena of recent years has been the removal of barriers between intelligence and law
enforcement agencies. Increasing concerns with international narcotics smuggling and,
more recently, with international terrorism have resulted in removing a number of
statutory and administrative barriers to closer cooperation among agencies which gather
information on links between overseas groups and criminal acts in the United States.
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Some, however, attribute the failure to anticipate the September 11 attacks to an inability
or unwillingness by law enforcement and intelligence agencies to share information in
their possession. Changes in policies and statutes since September 2001 have encouraged
closer coordination among these different sets of agencies, but difficult questions remain.
It is clear to almost all observers that intelligence and law enforcement agencies must
routinely share information, given the nature of international terrorism, but some fear that
important distinctions are being ignored. They emphasize that intelligence agencies were
established to collect, analyze, and disseminate information by virtually any means
possible; they were not envisioned as being law enforcement agencies. (The CIA and
Defense agencies are denied law enforcement responsibilities by separate statutes.)
According to some observers, using intelligence agencies to collect evidence specifically
for use in criminal investigations leaves open the possibility for serious erosions of civil
liberties. From their perspective, the legal requirements for electronic and physical
surveillance, including those established by the Foreign Intelligence Surveillance Act,
could be undermined by a more expansive role for intelligence agencies.
Some observers believe that only an independent commission could effectively
address the question of balancing the need for intelligence in the war on terrorism with
the integrity of the Nation’s legal system. They believe there is considerable uncharted
legal territory involved, and that the broader constitutional questions involved could
benefit from detached consideration by persons without vested political or bureaucratic
interests at stake. Since the issues fall within the oversight of a number of different
congressional committees–including intelligence and judiciary committees, proponents
of an independent commission suggest that a commission would be best able to consider
the complex questions involved and provide the understanding of the issues that will be
necessary to sustain public support of any needed changes in the functioning of
intelligence and law enforcement agencies over the long term.
On the other hand, those skeptical of the need for such a commission argue that
many of the necessary adjustments in the roles and missions of intelligence and law
enforcement agencies have already been made by the USA Patriot Act of 2001 (P.L. 107-
56) and subsequent amendments, and that an independent commission would serve no
useful purpose at this time. They suggest that the public fully understands the unique
threat posed by international terrorists, and generally accepts steps to modify existing
legal procedures when dealing with suspected terrorists. They believe that the Executive
Branch could make any further needed adjustments in the relationship between law
enforcement and intelligence agencies in consultation with congressional committees.
Conclusion
In considering intelligence authorization bills and homeland security legislation,
Congress is addressing proposals for an independent commission to investigate the attacks
on September 11, 2001. Different views are held regarding the advisability of such a
commission, how any commission’s membership should be chosen, and what the terms
of reference should be. Some will see an independent commission as duplicating the
duties of existing congressional committees; others will see an opportunity for an outside
assessment of complex issues of great concern to the public.