Intel: Lost in the Reshuffle

For that reason, some argue that Congress should revisit the statute, much as it went back after two years and revised the 1947 National Security Act that created the CIA. Such an effort now, though, would inevitably reopen some of the territorial disputes among agencies that created flaws in the current law.

Congress made some changes last year when it wrote a law codifying more of the Sept. 11 commission’s recommendations on national security. But the lawmakers didn’t even try to strengthen the DNI’s powers, which would have been a particularly difficult task, and only the House attempted the equally tough job of streamlining congressional oversight of intelligence. The commission had recommended that House and Senate Intelligence committees have both authorization and appropriations powers, since appropriators and authorizers now sometimes contradict one another.

The longer Congress takes to address such issues, the more difficult it will be to do anything, said Tim Roemer, a member of the Sept. 11 commission and a former Democratic congressman from Indiana. “The cement is hardening around the 2004 reform effort,” he said, “and there are still significant pillars missing from the foundation.”

Incremental Improvement

When government agencies, like big companies, are merged or reorganized, it can take years for them to settle out and function smoothly. The Defense Department, for example, was created by the same 1947 law that established the CIA, but some defense experts contend that the military services did not work smoothly together for decades — until a 1986 law known as the Goldwater-Nichols Act changed the military command structure and gave more power to the chairman of the Joint Chiefs of Staff.

“The textbooks say it takes seven to 10 years,” said Ronald P. Sanders, the DNI’s personnel chief, “but we can’t afford for it to take that long,” given the continued threat of terrorism.

McConnell has approached the reorganization with urgency because of that. In April 2007, two months after taking office, he launched a 100-day plan, followed by a 500-day proposal for better integrating the intelligence agencies and fostering cooperation. Some parts of his plan are drawn from the 2004 law and others are new, such as a pilot project streamlining procedures for security clearances that relies more on record searches for routine new employee applications, rather than laborious interviews with friends and neighbors. Most experts view the initiative as promising.

Thornberry said there have been “incremental” gains in all the areas addressed by the law, but most everyone agrees the biggest improvement has been in intelligence analysis — the area where, for instance, faulty assessments five years ago inflated the extent of Saddam Hussein’s weapons capabilities.

In the more recent case of Iran, a National Intelligence Estimate issued late last year contradicted a previous estimate by saying that Iran had shut down its nuclear weapons program in 2003. Though some conservatives disagreed with the new estimate, most experts said it had showed how far intelligence analysis had progressed.

LEAD OFF BATTER: Negroponte, the first DNI, is described as a capable diplomat but a poor choice to lead the intelligence community. (AFP \ GETTY IMAGES \ NICHOLAS KAMM)

“The analysts are improving,” Roemer said, “and their product is gradually moving forward.”

Improvements in cooperation between the DNI and Defense Department over the past two years are largely due to the good relations between McConnell and Gates, who ran the CIA for the first President Bush. Gates’ predecessor at the Pentagon, Donald H. Rumsfeld, had a more expansive view of military intelligence than that shared by Gates and his intelligence chief at the Pentagon, James R. Clapper. The two have dismantled or begun to tear down several of Rumsfeld’s intelligence initiatives, such as the data-gathering program known by the acronym TALON and the Counterintelligence Field Activity, which also reportedly gathered information on suspicious activity in the United States. Clapper, unlike his predecessor, Stephen Cambone, also serves as deputy director of defense intelligence.

Problems of Power

Intel: Lost in the Reshuffle

Whatever changes Congress envisioned in 2004, it left the new national intelligence director short of the authority he needs to carry out the role lawmakers envisioned. In fact, the title “director of national intelligence” is a misnomer, according to the very person who holds the office.

At a February hearing of the Senate Intelligence Committee, McConnell tried to describe where his authority and duties lie on a scale of increasing leadership power — from an overseer, such as a presidential “drug czar” whose authority is limited to persuasion, to a coordinator, an integrator of programs and finally to a director. “I currently have the title of director,” McConnell testified, “but the authorities created in statute and executive order put me more in the middle of that range of options — coordinator and integrator — rather than director with directive authority.”

The reason, he said, is that 15 of the 16 agencies in the intelligence community report to a Cabinet secretary in another department, most of them in Defense. McConnell has only the CIA under his direct control.

McConnell’s indirect authority has made it difficult to implement some provisions of the 2004 law. Congress, for instance, wrote that promotions within the intelligence community should depend partly on whether the employee has served in a “joint duty status” with other intelligence agencies to gain experience in different operations. Although the armed services have the same requirement for their officers, until he left in 2006 Rumsfeld resisted the idea of having outsiders working in Pentagon intelligence agencies. Gates has been more amenable.

David Shedd, McConnell’s deputy director for policy, plans and requirements, acknowledged that the program has been hard to establish, although he did not ascribe that specifically to Rumsfeld. “There have been some areas of resistance, I guess, in pulling the community to all go in the same direction,” he said. “The fact is, trying to get joint duty done was difficult in terms of each of the departmental personnel authorities.”

The DNI’s limited authority has spawned myriad personnel problems. Negroponte’s effort to get the National Counterterrorism Center into operation was hampered by his limited authority to move personnel. According to Christopher S. Bond , the Missouri Republican who is vice chairman of the Senate Intelligence Committee, “Negroponte had a real cat fight.” And Sanders, the DNI’s personnel chief, said the law’s personnel authorities are “ambiguous at best.”

There also are ambiguities about the director’s budget authority. At the February hearing where McConnell testified, Senate Intelligence Chairman John D. Rockefeller IV , a West Virginia Democrat, said the law gives the director “significant power to move resources from one intelligence agency to another, but if bureaucratic roadblocks cause every transfer to take six months, then maybe we haven’t done that at all, and at least we need to discuss about that.”

‘A Lack of Urgency’

What power Congress gave the intelligence director the Bush administration was not quick to use, and intelligence experts say that has allowed the reorganization to fall behind.

Lawmakers, outside experts and former officials focused on intelligence all saw the first director as a capable diplomat but a poor choice to lead the DNI. Some viewed him as uninterested. “While Ambassador Negroponte did a fine job at the beginning” with the preliminary organization, said Timothy R. Sample, a former staff director of the House Intelligence Committee, “I don’t think there were any key advances in what Congress was after and within the community.” Sample is currently president of the Intelligence and National Security Alliance, an association of intelligence professionals in and out of government.

Thornberry said it was a question of temperament. A report his subcommittee released in 2006, when Negroponte was still on the job, characterized the biggest reason for the slow progress as “a lack of urgency.”

Other administration decisions hampered the law’s execution as well. It took the White House more than a year, from May 2006 to July 2007, to select a principal deputy director of national intelligence, Donald M. Kerr, to serve as McConnell’s right-hand man.

Under Negroponte, Michael V. Hayden , Kerr’s predecessor and now the head of the CIA, served as a manager of the intelligence community. The director of national intelligence, like the CIA director before the 2004 restructuring, has dual roles as the head of the intelligence community and as the top intelligence official, a responsibility that includes briefing the president on a daily basis.

Intel: Lost in the Reshuffle

“With McConnell spending the time he has to spend as the president’s chief intel officer, that doesn’t leave much time to manage the community,” said Sample. “The fact is that, if you don’t have a strong deputy you can work hand-in-hand with, then at the end of the day you’re not able to fulfill what everybody wants. In the execution of the creation of the DNI, I think we lost some critical time.”

Assessing the Overseers

Strong authority for the intelligence director was a major recommendation of the Sept. 11 commission — but not the only one left on the cutting room floor in the Capitol four years ago. The commission recommended that Congress reorder its own supervision of intelligence, either by creating a joint House-Senate intelligence panel or giving appropriations powers to the two Intelligence committees. When several commissioners recognized that Congress was unlikely to do either, they recommended the creation of two Appropriations subcommittees on intelligence. In the end, Congress did none of it.

“Of all the recommendations, that is the one that has truly gone nowhere,” said Amy Zegart, an associate professor of public policy at the University of California Los Angeles who has studied the history of intelligence restructuring.

The result, she said, is that intelligence agencies can dodge effective oversight by going around the authorizing committees that scrutinize them most closely and appealing to Defense appropriators, who provide most of the intelligence budget. Bond, at a hearing last year, provided the outlines of several secret programs for which the Senate Intelligence Committee made one funding recommendation and appropriators went another way — part of what the senator characterized as a consistent pattern.

Roemer said a congressional overhaul was key to making sure the overall restructuring worked. “Out of all of the many recommendations of the 9/11 commission, the congressional reform one might be the hardest, but it may be the single most important,” he said. “If you fail to reform yourselves as Congress, it is awfully difficult to oversee these new structures if you don’t have the updated structure yourself.”

Changing Culture

Though the reorganization Congress envisioned has lagged, two changes are often singled out as being behind the rest: changing the FBI’s culture to concentrate on counterterrorism and improving collaboration among all intelligence agencies.

The FBI had already begun beefing up counterterrorism efforts after the Sept. 11 attacks, and the 2004 law authorized a directorate of intelligence within the bureau and further steered the FBI toward becoming a counterterrorism agency first and foremost.

But progress has been slow. At an October hearing of the Senate Intelligence Committee, the FBI received what Zegart described as “a brutal dressing down.” During one exchange, Willie T. Hulon, then the executive assistant director of the FBI’s national security branch, acknowledged to Oregon Democrat Ron Wyden that perhaps fewer than one-third of his agents and analysts had Internet access at their desks. In addition, Hulon said, while the law gave the FBI authority to hire 24 senior intelligence analysts, the bureau had hired only two.

Another witness, former GOP Gov. Thomas H. Kean of New Jersey, who chaired the Sept. 11 commission, said he was still hearing that FBI analysts were being treated like second-class citizens and given tasks such as manning the phones.

Hulon insisted that the situation had improved and that the FBI had “really focused on making sure that we have the analysts focused on the analytical duties.” But Zegart, citing her own sources at the bureau, said something starkly contradictory was happening even as Hulon testified. “At that moment, in FBI headquarters, analysts were being assigned duties to watch a construction crew while FBI agents were exempt from doing that,” she said.

The culture of spies keeping the fruits of their endeavors to themselves — instead of sharing it with other spies — has also been difficult to change.

Intel: Lost in the Reshuffle

The 2004 law was intended to foster more collaboration, and in an op-ed last September in The Washington Post, Kean and the Sept. 11 commission’s vice chairman, former Democratic Rep. Lee H. Hamilton of Indiana, said the National Counterterrorism Center (NCTC) was a positive development because it had brought together analysts from the CIA, FBI and elsewhere. Each of the intelligence agencies sends representatives to the center, which is located at CIA headquarters. “But those inside the center still face restrictions on what they can share — a disturbing echo of failed practices,” the pair wrote.

John Brennan, a former NCTC director, said those barriers are complex. “There are different issues and laws and policies and procedures that govern the access and handling and management of different pieces of data,” said Brennan, whose company, the Analysis Corp., still works with the counterterrorism center. “It’s come a long way, and they’re doing a better job of making more things available so that the NCTC can connect the dots and have at least one place in the U.S. government that has access to everything.”

Regulation Patchwork

But Brennan and others say the information sharing barriers are not just among agencies, but between the federal government and state and local law enforcement agencies, which operate under a patchwork of laws and regulations governing what data may be collected and how it may be shared.

Brennan said the federal government also is still clearly struggling to get a handle on the issues surrounding domestic intelligence, one factor that has made it difficult to share information between the federal government and local entities.

A Primer on the U.S. Intelligence Community: Click Here to View Chart

Still, Thornberry’s subcommittee found that, in addition to the information sharing barriers, the analysts were doing work that overlapped with the CIA and Defense Intelligence Agency. It quoted an NCTC official as saying that everyone was analyzing the same 10 percent of available information on terrorist targets.

Almost every aspect of the intelligence overhaul, though, has not progressed quickly enough, observers say. Despite McConnell’s pilot project to streamline security clearances, applications still take a long time to process. Agencies do not recognize clearances granted by other agencies, one contributor to the rivalries between different components of the intelligence community.

Background checks that require extensive interviews are particularly difficult when applicants are from other countries, yet those are just the sort of people the intelligence agencies say they want more of to serve as translators or human intelligence gatherings.

The DNI’s office, many say, is still struggling with what and how much it should be doing. Some have criticized it for not taking a more active role in managing the intelligence community; others say it has become a bloated bureaucracy that duplicates the work of other agencies. The DNI now employs about 1,500 people.

The Privacy and Civil Liberties Oversight Board created under the 2004 law was supposed to help protect both during the expected increase in intelligence collection, but it has been exceptionally weak in doing so. The board “has raised no objections to wiretaps without warrants and to troubling detention and interrogation practices,” Kean and Hamilton wrote. “It even let the White House edit its annual report.”

The CIA, robbed of its position as the seat of the earlier Director of Central Intelligence, initially struggled with its new, secondary role. “I’ve heard stories that the DNI has run into a lot of resistance from the CIA,” though those have since subsided, Lowenthal said.

Search for Solutions

Intel: Lost in the Reshuffle

Congress, and to a lesser degree the Bush administration, has few options for correcting the problems, and all of them are difficult.

One is to try to adjust the law on the reorganization piecemeal. Democrats tried that last year, after promising during the 2006 campaign that they would enact all of the Sept. 11 commission’s recommendations that had been left undone when the Republicans controlled Congress.

TEAM PLAYER: Gates, as Defense secretary, has worked with McConnell on ways to coordinate intelligence work; colleagues hope their arrangements might be successful enough to survive a change of administrations. (GETTY IMAGES / WIN MCNAMEE)

The law that Bush signed in August strengthened the hand of the Privacy and Civil Liberties Oversight Board. Another change it ordered, which might seem minor but was important, was the annual disclosure of the total spent on intelligence. The commission had recommended doing so as a way to increase oversight of the spy agencies by at least monitoring total appropriations. The law put into place several new programs designed to enhance information sharing between federal intelligence officials and local law enforcement, such as a fellowship program that places state and local officials in the Department of Homeland Security’s intelligence office.

Separately, Democrats created a new select House Appropriations subcommittee focused on intelligence and composed of both appropriators and Intelligence Committee members. It provides recommendations to Defense appropriators, but has no appropriations power itself.

“I believe we’ve had the kind of better understanding and coordination between authorizers and appropriators that we need,” House Intelligence Chairman Silvestre Reyes , a Texas Democrat, said of the change. “If I were able to, I would give you some very specific examples of issues we were able to work through because of this concept.”

UCLA’s Zegart called it “a step forward, but it’s not the same as having appropriations powers.”

On the Senate side, the situation is largely unchanged. Last year’s law included a “sense of the Senate” provision suggesting that its Intelligence Committee recommend changes to the structure of intelligence oversight. When the majority of the panel last month sent a letter to Senate leaders recommending that either they give the Intelligence Committee appropriations powers or create a new Appropriations subcommittee on intelligence, leaders of the Appropriations Committee rejected both suggestions.

Not even a token attempt at giving the DNI more authority was included in the Democrats’ Sept. 11 commission law.

The Senate Intelligence Committee last week approved a draft authorization bill for fiscal 2009 that would give the DNI new personnel and budget powers, such as the authority to exceed intelligence community personnel caps by 5 percent and shift funds more easily. The draft bill also contains provisions that would prohibit harsh interrogation tactics — provisions that led Bush to veto a similar authorization measure last year.

One possibility now, Lowenthal said, is to undertake a top-to-bottom revision of the 2004 law, though he readily acknowledges the difficulty in that. “This is not a rap on the people who run the system now, but it is a rushed law and has a number of intellectual flaws,” he said. “For Congress to admit that would be difficult. I don’t see a major willingness to do a similar kind of review.”

The law was rushed by the 2004 election and the passion of the Sept. 11 victims’ families, who united behind the commission’s recommendations. A revision of the law might not have the same momentum that allowed some of the more daring changes enacted in 2004.

The administration is not pushing for any major new authorities, said Shedd, the DNI’s policy director. For the immediate future, that leaves the fate of the intelligence community in the hands of an incoming administration.

Intel: Lost in the Reshuffle

Thomas Fingar, the DNI’s deputy director for analysis, said the current intelligence leaders are trying to put structures, agreements and procedures in place “not only so that they won’t be easy to undo, but people won’t want to undo them.”

But few believe, despite the gains under McConnell, Gates, Clapper and others, that they will last. The current team is unique. “The fear that a lot of people have is that it will not survive the change of administrations a year from now,” said Lowenthal. “The problem is, it’s built on people. It’s not institutionalized. Are you likely to get the same setup again? Probably not.”

Roemer, now president of the Center for National Policy, a nonpartisan think tank, said that to force a solution to the intelligence problems will take either leadership or the unthinkable: another attack. “There is leadership that is provided by energy, initiative and creativity,” he said, “or there is a crisis.”

FOR FURTHER READING: Fiscal 2009 intelligence bill, p. 1189; fiscal 2008 intelligence bill (HR 2082), CQ Weekly, p. 729; Sept. 11 commission law (PL 110-53), p. 49; intelligence overhaul (PL 108-458), 2004 Almanac, p. 11-3; Sept. 11 commission, 2004 Almanac, p. 11-8.