National Intelligence Reform Act of 2004

NATIONAL INTELLIGENCE REFORM ACT OF 2004

The PRESIDING OFFICER. Under the previous order, the Senate will proceed to consideration of S. 2845, which the clerk will report.

The assistant legislative clerk read as follows:

A bill (S. 2845) to reform the intelligence community and the intelligence and intelligence-related activities of the U.S. Government, and for other purposes.

The Senate proceeded to consider the bill.

The PRESIDING OFFICER. The Senator from Maine.

Ms. COLLINS. Mr. President, today the Senate begins an important debate on the National Intelligence Reform Act. This legislation, which I have introduced with my good friend and colleague, Senator JOE LIEBERMAN, represents the most sweeping reform of our intelligence structures in more than 50 years. It reorganizes an intelligence community designed for the Cold War into one designed for the war against global terrorism and future national security threats. It recognizes that the fundamental obligation of government is to protect its citizens and that those protections must evolve along with the threats. It reorders the priorities of an intelligence structure that was devised for a different time and a different enemy.

On July 22, the 9/11 Commission released its final report on terrorist attacks against the United States. On that same day, our leaders, Senator Frist and Senator Daschle, assigned the Governmental Affairs Committee the task of developing legislation addressing the Commission's recommendations to restructure the intelligence agencies within the executive branch. Our committee performed that task with dedication and diligence, and with the active participation of its talented members. From late July until mid-September, we held eight indepth hearings to assess the recommendations of the 9/11 Commission. We heard testimony from more than two dozen witnesses, including Secretary of State Powell, Secretary of Homeland Security Ridge, FBI Director Mueller, CIA Director McLaughlin, the 9/11 Commission Cochairmen, Kean and Hamilton, Commissioners Fielding and Gorelick, intelligence experts, field operatives, professors, and representatives of the 9/11 families. As a result of this unprecedented effort and wide-ranging input, the committee has produced the legislation now before the Senate. It is legislation that is comprehensive, bipartisan-indeed, unanimous-and historic.

This legislation is not, however, merely the product of 2 months' work by our committee. It is based upon the work of the 9/11 Commission and the inquiry that spanned 20 months, with 19 days of hearings and 160 witnesses, the review of 2.5 million documents, and interviews of more than 1,200 individuals in 10 countries. The new intelligence structure we propose in our legislation is built upon a rock-solid foundation of inquiry and information.

In crafting a structure designed for today and for the future, the committee built on the strengths of our current system, recognized the progress that has been made since 9/11, and charted a new course to strengthen our intelligence community. We understood that the 15 agencies that comprise the intelligence community provide a wide range of unique experience, expertise, and viewpoints that must be preserved. We realize that the barriers to information sharing, cooperation, and coordination-what the 9/11 Commission referred to as "stovepipes"-must be demolished.

We set as our goal an intelligence structure with the agility that the times and the threats demand, not simply another layer of bureaucracy. We were determined that this new structure not infringe upon the freedoms that Americans cherish.

This legislation uses the Commission's recommendations as our guide and these principles as our compass. It begins with the creation of the position of national intelligence director. The NID will be the head of our intelligence community and the principal adviser to the President of the United States. As the head of the new National Intelligence Authority, this Presidentially appointed, Senate-confirmed official will truly be in charge of our intelligence community. No longer will there be confusion and doubt about who is in charge and accountable. The answer will clearly be the national intelligence director.

The director will have broad authority to unify and strengthen our intelligence community's efforts and to eliminate barriers that impede the coordination of intelligence activities. He or she will set standards for information sharing and classification across the intelligence community and develop an integrated, coordinated communications network. His responsibility will be to turn the stovepipes that separate our intelligence community into conduits that promote cooperation. Along with this responsibility will come strong authority to direct budgetary and personnel resources where they are needed most.

To illustrate why these authorities are crucial, consider this passage from the 9/11 Commission Report.

In late 1998, it had become increasingly apparent that Osama bin Laden and al-Qaida posed a direct, immediate, and deadly threat to the United States. On December 4 of that year, Director of Central Intelligence George Tenet issued this memorandum. I quote from it:

We are at war. I want no resources or people spared in this effort, either inside CIA or the Community.

You may ask, What is the result of this clear, concise and direct order from the head of our intelligence community.

According to the Commission:

The memorandum had little overall effect on mobilizing the CIA or the intelligence community.

Why did it have so little impact? The expert witnesses before our committee and before the Commission provided the answer. Under the current structure, the DCI is responsible for managing the intelligence community but does not have the real authority to do so. No organization can succeed with such a disconnect between responsibility and authority.

At our committee hearing on September 13, I asked Secretaries Powell and Ridge what I consider to be the bottom-line question in this debate. I asked them both: Do you believe that a strong national intelligence director with enhanced power to set collection priorities, to task the collection of intelligence, will improve the quality of intelligence that you both need in your capacity as policymakers?

Each answered with an enthusiastic and unambiguous "yes." As Secretary Powell put it, our intelligence team needs, and I quote the Secretary, "a stronger, empowered quarterback." The Collins-Lieberman bill would provide that quarterback.

Perhaps the most important power that we provide to the national intelligence director is the power of the purse. In order to foster cooperation throughout the intelligence community, the NID will have control over the budget for national intelligence. Currently, that funding is largely funneled through the Department of Defense, and the director of the CIA has only very limited authority over the overall resources of the intelligence community.

Under the Collins-Lieberman bill, the NID, in consultation with the agency and department heads, will develop and recommend an intelligence budget to the President. After congressional action, it will be the NID who receives the appropriations for what will be known as the national intelligence program. The NID will also have significant authority to reprogram and transfer funds so that he can marshal the resources needed to counter a threat.

Never again should we have the kind of situation we saw with the directives issued by George Tenet in December of 1998, calling on the marshaling of resources and yet nothing happens.

After careful consideration, the committee decided to declassify only the aggregate figure for the national intelligence program. The Collins-Lieberman bill does not require the declassification of the budget totals for the various agencies that make up the NIP. Our witnesses generally urged great caution in going that far; instead, we require the directors to report to Congress on whether further declassification of budget totals is appropriate.

The NID will allocate the budget to the various intelligence agencies in accordance with the appropriations determined by the Congress. That includes agencies such as the National Security Agency, the National Geospatial Intelligence Agency, the National Reconnaissance Office, and parts of the Defense Intelligence Agency which serve national intelligence consumers but are located within the Department of Defense. In recognition of the dual roles played by these important agencies, which provide critical intelligence not only to the Department of Defense but also to the CIA and other national customers, our bill keeps these agencies within the department but strengthens the NID's authority over them.

It is important to emphasize that nothing in the national intelligence agency's authority will in any way hinder military operations or readiness. Tactical and joint military intelligence programs will remain under the control of the Pentagon and outside the national intelligence program as they are today. The Collins-Lieberman bill will not affect the tactical intelligence assets of the Army, Air Force, Navy, or Marines. This bill will not impede the flow of real-time actionable intelligence that our war fighters require. In fact, by strengthening and improving the collection and analysis of intelligence, our legislation should improve the quality of intelligence provided to Pentagon officials and the combatant commanders.

The members of the intelligence community collect a vast amount of information, but the Commission found that we have a weak system for processing and transmitting this information where it is needed. As the 9/11 report reveals, this weakness has been evident during many terrorist attacks over many years. It took an attack that claimed the lives of 3,000 people for
this weakness to be fully exposed, and now it cannot be ignored.

Our legislation contains strong provisions that make information sharing the rule, not the exception, and requires integrated communications networks to be developed, a serious deficiency in our current system which Senator Durbin highlighted in our hearings. We simply can no longer tolerate a system where the pieces of the puzzle are not assembled, where the CIA and the FBI each have vital, urgent, and compelling information, but no one puts the picture together.

The second major Commission recommendation included in our bill is the establishment of a national counterterrorism center. It would expand the communitywide intelligence analysis capabilities of the Terrorist Threat Integration Center established by the President last year.

A major benefit of this new center is that much of its staff will be drawn from the various intelligence agencies now scattered across the Federal Government. These intelligence experts will work side by side sharing and analyzing information, gaining an understanding of each other's mission, and creating a culture of cooperation. A significant responsibility of the NCTC will be joint planning. The center will have the authority to develop plans that include a mission, objectives to be achieved, courses of action, and recommendations from operational plans. Moreover, the center will assign responsibilities for counterterrorism operations to the agencies as set forth in these plans.

As an example of how this might work, the NCTC would have the authority to create an interagency plan to dismantle a particular al-Qaida cell. The center would assign specific tasks to the appropriate agencies. But I want to be clear that the NCTC would not have the authority to tell any agency how it must execute that task, nor will it be in the military chain of command. Should an agency object to the NCTC assignment, the national intelligence director could either accede to the objection or appeal to the President to resolve the conflict.

These provisions are important. They will ensure an integrated approach to operational planning. We are not telling the various agencies precisely how to carry out the plan, how to execute it, but we will make sure that someone is looking at plans that span agencies, and in doing the planning when it affects more than one agency, when it is joint.

The legislation also includes provisions recommended by the Commission and authored by Senator Voinovich that streamline and standardize the system for security clearances, a system that we have heard, over and over again, is inconsistent, slow, and backlogged. An important provision requires the President to designate a single agency to handle security clearances for Government employees and contractors.

The final chapter of the 9/11 report, the chapter that outlines the recommendations we seek to implement, begins with this statement:

Some of the saddest aspects of the 9/11 story are the outstanding efforts of so many individual officials straining, often without success, against the boundaries of the possible. Good people can overcome bad structures. They should not have to.

This summarizes one of the major reasons we need reform. We have a system now that does not allow us to respond with agility to the threats we face today.

As this next chart shows, in our legislation we are not adding a layer of bureaucracy, nor are we breaking up individual agencies, nor are we creating a new department of intelligence. We are, instead, creating a new structure for cooperation, accountability, and results. Our legislation gives the good people in our intelligence community the structure they deserve. It also takes steps recommended by Senator JAY ROCKEFELLER, the vice chairman of the Intelligence Committee, to ensure that we will always have good people. It creates a scholarship program to encourage bright young Americans to join the intelligence community and it will enable veteran intelligence officers to enhance their skills. Intelligence reform requires this investment in human capital. We also create a reserve corps of retired intelligence officers who can be called upon when their special skills and judgment are needed.

Our bill also creates a civil liberties board as recommended by the Commission and strengthened by amendments offered by Senator Durbin. Nominated by the President and confirmed by the Senate, the members of this board will advise agencies of the civil liberties ramifications of policies before they are adopted and then will conduct oversight.

In addition, our legislation will create both a civil liberties and privacy officer as part of the new national intelligence authority.

The fundamental obligation of any government is to protect its citizens. The American Government has an additional obligation to protect the freedom of its citizens. Our legislation does not ask the American people to choose between security and liberty. We firmly believe that no such choice is necessary. Our structure reflects that belief.

To help ensure a smooth transition from the current structure to the new, the bill provides a 6-month phase-in period that gives the President considerable discretion in implementing these reforms. We will not let our guard down during any point in this process.

We also recognize that reforms of this magnitude require continued and careful congressional oversight and review. The bill includes a provision recommended by former Senator Warren Rudman that requires a report to Congress on implementation of these reforms after 1 year. As a result of an amendment offered by Senator Pryor, it also includes a useful requirement for a government accountability study and report to Congress.

As I have indicated, this legislation is the product of a concerted effort by the Governmental Affairs Committee. It reflects the recommendations of other committees and it builds upon the work of the 9/11 Commission. But it is important to know that the 9/11 Commission did not start from scratch, either. Its work takes into account nearly a half century of studies on intelligence reform dating back to the Eisenhower administration.

The titles of the studies and commissions reads like a "Who's Who" of 20th century military, intelligence, and diplomatic expertise: Hoover, Doolittle, Schlesinger, Rockefeller, Scowcroft, to name just a few. These studies were conducted under a variety of conditions and threats but a central theme emerges: America's intelligence system is hindered by a fragmented structure and compartmentalized thinking.

Our past failure to act on these many studies, which spans decades, which is repeated over and over again, is why we are here today. For example, the Boren-McCurdy legislation of 1992 realized the emerging threat of the post-Cold War era, terrorism, and weapons proliferation. Using the successful restructurings of the military since World War II as models, the National Security Act of 1947 and the Goldwater-Nichols Act of 1986, this legislation called for the creation-yes, you guessed it, Mr. President-the creation of a national director of intelligence with strong authority similar to what we propose today.

The Boren-McCurdy Act was not adopted. At the same time that those reforms were being set aside for another day, one component of our intelligence community had identified Osama bin Laden as the mastermind behind a foiled plot to bomb American troops. Another noted bin Laden's close ties to a known terrorist who was later revealed as the architect of the 1993 World Trade Center bombing. Yet another considered bin Laden to be nothing more than an extremist financier. Information that could have led to effective action against bin Laden a decade ago was there, but it was not shared or acted on. In 1996, the Aspin-Brown Commission reached the same post-Cold War conclusion and made very similar reform recommendations. The result: yet another failure by Congress to take action.

Meanwhile, our intelligence community was starting to agree that bin Laden had started something called al-Qaida and that it was some kind of terrorist army. As the 9/11 Commission notes, however, every relevant member of the intelligence community had a different plan for dealing with bin Laden and al-Qaida, from cruise missiles to diplomacy with the Taliban. While these conflicting plans were butting heads, two American Embassies in Africa were bombed, the attack on the USS Cole was approved, and what became known as the Planes Operation was taking shape.

The need for reform was made clear by the 9/11 Commission's exhaustive study on the intelligence failures that preceded the murder of 3,000 innocent people on September 11, 2001. In late July of this year, as the Governmental Affairs Committee's work began, Washington, New York City, and northern New Jersey were placed under elevated terrorist alert, an alert that is still very much evident at the intersections of this city today. Our committee work neared its conclusion as terrorists murdered once again, this time at a schoolhouse in Russia.

These terrible events, combined with the slaughter we have seen in Bali, Istanbul, Madrid, Jerusalem, Jakarta, and so many other places, leaves no doubt that the enemy we face has both a global reach and an unlimited capacity for cruelty. Our response must be far reaching, and it must unleash America's capacity to meet any challenge. This legislation is an essential part of that response.

The calls for reform go back 50 years. For nearly 2 years, the 9/11 Commission conducted an investigation of unprecedented depth. Our committee produced comprehensive legislation with unanimous support.

Hardly a day passes in which we do not see new evidence of terrorism's depravity. Yet there are still some who say: We should wait. We need more information. Under the current threat of terrorist attack, the time is not right. The charged atmosphere of the election season is not the right environment for such important decisions.

I ask, What more information do we need? Look at the list of witnesses who appeared before the 9/11 Commission and our committee. What point of view has not been heard? What area of expertise was not explored? What more compelling evidence do we need before we act?

I ask, If the time is not right now, when will the right time come? When will there be no threats? I ask, What could be more cynical than our failure to act on something of such critical importance to the citizens of our country?

At our very first Commission hearing on July 30, Commission Chairman Thomas Kean spoke on the need to move forward with these reforms. This is what he said-and I hope we will heed his words-

These people are planning to attack us again and trying to attack us sooner, rather than later. Every delay we have in changing structures or changing people . . . to make that less likely is a delay the American people can't tolerate.

Yes, we can wait. We can wait until the day when we know everything we possibly can know, when there are no more threats, when the American people do not expect their leaders to lead. We can wait until the day another attack leaves us all wondering once again why we did not see it coming.

That first day will never come. If we do not act, the second surely will.

Thank you, Mr. President.

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Ms. COLLINS. Madam President, I thank the Senator from West Virginia for his eloquent statement of support for this legislation. As vice chairman of the Senate Intelligence Committee, he brings extraordinary knowledge to this debate. We are very grateful for his contributions to the Collins-Lieberman bill.

As both Senator Lieberman and I mentioned, Senator Rockefeller responded to our request for input and advice. We incorporated into our legislation several of the suggestions he provided. We are very grateful to have his support. It means a great deal as we proceed with this debate.

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Ms. COLLINS. Madam President, I thank the chairman of the Commerce Committee, the distinguished Senator from Arizona, for his contributions to this entire enterprise. I am very grateful to have his support for the underlying bill drafted by Senator Lieberman and myself. And I very much appreciate his offering of the first amendment to strengthen the bill still further, by adding one of the recommendations made by the 9/11 Commission.

As the Senator indicated, the Governmental Affairs Committee largely confined its review to the major recommendations of the Commission that had to do with the reorganization of our intelligence community. That does not mean, however, that we slight in any way the many other recommendations made by the Commission. The amendment of the Senator from Arizona would implement the transportation security recommendations of the 9/11 Commission.

It is my understanding the Senator's amendment was drafted in consultation with officials from the Department of Homeland Security. I believe it will help make our Nation more secure. Specifically, the 9/11 Commission recommended establishing a national strategy for transportation security, assigning responsibility for the no-fly list to the Transportation Security Administration, and enhancing passenger and cargo screening.

The amendment offered by the Senator will require the Secretary of the Department of Homeland Security to develop and implement a national strategy for transportation security and to revise and update that strategy as necessary to improve or maintain its currency.

I particularly want to comment on the provisions of the McCain amendment that task the TSA with the responsibility of developing the no-fly list and comparing the names of air passengers against the Government database containing the consolidated terrorist watch list.

I think recent incidents in the news show why it is a good idea for the Transportation Security Administration to have that authority rather than vesting it in the airlines, as is now the case. I would indicate to my colleagues that the Department of Homeland Security agrees with Senator McCain that it is the more appropriate entity to perform this matching of names against the Government's database.

Two incidents which come to mind are, first, one of our colleagues, the senior Senator from Massachusetts, finding that he had difficulty boarding flights because of confusion with the names listed on the terrorist database. I have a similar case of a retired physician in Camden, ME, whose name, unfortunately, including his middle initial, is very similar to a name that is on the terrorist watch list. As a result, this retired physician, who is no more a terrorist than you or I, Madam President, has an extremely difficult time every single time he flies. That shows me that we need to do a far better job of improving the quality of that watch list to make sure it is consolidated but also to make sure it is accurate and that people who have similar names are not needlessly subjected to an in-depth search or even denied boarding privileges altogether.

The second incident involves the singer formerly known as Cat Stevens, who was allowed to board an air flight from London to the United States recently because the airline was using a list that did not include all of the names on the terrorist watch list. So clearly we have a problem in that direction as well. There are too many watch lists. They need to be consolidated.

The quality of information on those lists needs to be improved to make sure innocent Americans are not needlessly targeted, and it should be a Government responsibility-that of the Transportation Security Administration-to maintain and check these databases against the lists of airline passengers. It is really not fair to ask the airlines to accept that responsibility, particularly when they may not have access to the entire database that the Government has compiled.

The McCain amendment appropriately vests in the Transportation Security Administration the responsibility for the no-fly list and for checking airline passengers against this list. I again emphasize that the Department of Homeland Security agrees that TSA should assume that responsibility and it should no longer be carried out by the airlines.

For these reasons, I urge adoption of the McCain amendment. I believe it strengthens the Collins-Lieberman bill by incorporating some worthwhile and commonsense recommendations made by the 9/11 Commission in the area of airline security.

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Ms. COLLINS. Madam President, I thank the distinguished Senator from California for her longstanding expertise in this area. I know the Senator presented a bill to create a national intelligence director long before it was popular to do so. She has been a leader in intelligence reform. She has made several very constructive and helpful suggestions and recommendations to the committee. We very much appreciate her leadership, and we consider it a great coup to have her support for our legislation.

I thank her for her hard work and her leadership. We look forward to continuing to work with her.

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Ms. COLLINS. Mr. President, I appreciate the commitment of the Senator from Oregon to work with us on this issue. I certainly understand his frustration at a tendency to overclassify information that it is not warranted to be classified, that is not necessary to protect intelligence sources and methods.

I note a couple of points. One is that the Collins-Lieberman bill vests in the national intelligence director the authority to establish requirements and procedures for the classification of intelligence information.

Another portion of our bill requires the national intelligence director to establish intelligence-reporting guidelines that maximize the dissemination of information, while protecting intelligence sources and methods.

In addition, the administration has expressed grave reservations about the amendment as it is now drafted.

What I would like to suggest and what the Senator from Oregon has graciously offered to do is have our staff on both sides of the aisle sit down with the Senator, see if we can address some of the administration's concerns, see if we can look at language that is already in the bill, and understand how that interacts with the Senator's proposal.

I thank him for his commitment to this area. He has identified a very real problem. I hope, perhaps, we can come up with an approach that will address his concerns.

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Ms. COLLINS. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

The PRESIDING OFFICER. Without objection, it is so ordered.

Ms. COLLINS. Mr. President, it is my understanding that the senior Senator from Maine, Senator Snowe, is on her way to the floor to speak to the amendment temporarily laid aside.

Before the Senator from Florida leaves the floor, I want to thank him for all the work he has done in this area. The Senator recently spent about an hour with me, sharing some of his experiences as chairman of the Senate Intelligence Committee. He has a great deal of knowledge and expertise, and I very much appreciated his taking the time to give me the benefit of his thoughts on intelligence reform. I am also the proud owner of his book, which is on my bedside table right now and is very appropriate reading as we do this debate. I thank him for his contributions. Like Senator Lieberman, I look forward to working with him, Senator Wyden, Senator Snowe, Senator Lott, on the amendment they have proposed.

Mr. LIEBERMAN. Mr. President, I want to tell Senator Graham that Senator Collins indicated to me she does have your book on her bedside table and she finds it compelling. She does not use it to induce sleep. I want to reassure him of that. I find it compelling as well. I join her in thanking the Senator.

You two were way out front in recommending quite a while ago some of the reforms that are contained in our committee's proposal. I hope the Senator knows his work cleared a path and informed the work that the committee did. I thank him for that.

AMENDMENT NO. 3705

Ms. COLLINS. Mr. President, I send an amendment to the desk on behalf of myself, Senator Carper, and Senator Lieberman.

The PRESIDING OFFICER. The clerk will report.

The bill clerk read as follows:

The Senator from Maine [Ms. Collins] for herself, Mr. Carper, and Mr. Lieberman, proposes an amendment numbered 3705.

Ms. COLLINS. Mr. President, I ask unanimous consent that further reading of the amendment be dispensed with.

The PRESIDING OFFICER. Without objection, it is so ordered.

(The amendment is printed in today's RECORD under "Text of Amendments.")

Ms. COLLINS. Mr. President, I will not debate this amendment tonight. I wanted to alert our colleagues that this amendment represents the work of the Governmental Affairs Committee to reform and improve and strengthen the formula for the allocation of Homeland Security grant moneys. Our committee has held several hearings over the last 2 years on this issue. This legislation reflects the result of those hearings. It also parallels the recommendations of the 9/11 Commission, that the formula needs to be revised so that it is more of a threat-based formula.

We worked very hard to come up with a compromise on the committee. We maintained the minimum that each State would get to ensure that every State can respond to its preparedness needs. But we also rewrote the formula in recognition of the fact that some areas of our country, some States, are indeed high-threat areas.

This legislation represents a careful balance that reflects the membership of our committee, which includes both large-State Senators, such as Senator Levin of Michigan, and small-State Senators, such as Senator Carper of Delaware. Senator Levin, in particular, I recognize for his very hard work on revising the formula. As I said-and I see members of the leadership on the floor-we will not debate this at length tonight. I did want to send the amendment to the desk.