The Intelligence Community and 9/11: Congressional Hearings and the Status of the Investigation
Report for Congress
The Intelligence Community and 9/11:
Congressional Hearings and the
Status of the Investigation
Updated January 16, 2003
Richard A. Best, Jr.
Specialist in National Defense
Foreign Affairs, Defense, and Trade Division
Congressional Research Service ˜ The Library of Congress
The Intelligence Community and 9/11:
Congressional Hearings and the
Status of the Investigation
Summary
The terrorist attacks of September 11, 2001 led many to inquire whether there
had been a failure by United States intelligence agencies to collect all available
information about the plots that led to the attacks, to analyze it properly, and
disseminate it in time to protect the American public. Congressional intelligence
committees responded by launching an unprecedented Joint Inquiry to investigate the
Intelligence Community’s record in regard to the 9/11 attacks and make
recommendations for further legislative action. The Joint Inquiry began its
investigation in February 2002 and held public hearings in September and October.
Findings, conclusions, and recommendations were made public in December 2002;
release of the final report is anticipated in 2003.
In public hearings, the Joint Inquiry’s Staff Director traced salient aspects of the
Inquiry’s work and emphasized that, whereas the Intelligence Community provided
ample warning of an impending attack in mid-2001 against the U.S. by the Islamic
terrorist group headed by Osama Bin Laden, the Community did not learn in advance
the plans for the aircraft hijackings that occurred on September 11.
The Joint Inquiry focused on several underlying problems. For a number of
Constitutional, statutory, and organization reasons, information collected by
intelligence agencies has historically not been routinely used for law enforcement
purposes. Similarly, information collected in preparation for trials has not been
routinely forwarded to intelligence agencies. In an era in which terrorists work
abroad to launch attacks in the U.S., some have argued that the “walls” between
intelligence and law enforcement have complicated the ability of any agency to put
together a complete picture of evolving plots. Explaining the complexity of this
situation was a major contribution of the Inquiry, although the issue of breaching
these “walls” remains complicated and controversial.
In addition, the Inquiry examined the role of the FBI. There were criticisms of
the Bureau’s ability to: process and store information; provide communications links
between field offices and headquarters; process applications for surveillance; and
coordinate with intelligence agencies. More fundamentally, the intelligence
committees examined priorities that, prior to September 11, 2001, did not emphasize
counterterrorism to the extent that has subsequently been considered necessary.
The Intelligence Authorization Act for FY2003 (P.L. 107-306) establishes an
independent commission to assess the role of agencies throughout the government
with regard to the 9/11 attacks. This independent commission, to be headed by
former New Jersey Governor Thomas H. Kean, will build upon the investigatory
record of the Joint Inquiry, but might reach further to assess organizational issues and
the proper relationship of law enforcement and intelligence agencies. This report will
be updated as circumstances dictate.
Contents
In troduction ......................................................1
The Joint Inquiry of the Intelligence Committees.........................2
Analysis Presented by Staff Director...................................3
Public Testimony by Witnesses......................................10
Committee Findings, Conclusions, Recommendations and
Additional Views of the Vice Chairman...........................16
An Independent Commission: Possible Issues..........................18
Conclusion ......................................................20
The Intelligence Community and 9/11:
Congressional Hearings and the
Status of the Investigation
Introduction
In February 2002, the two congressional intelligence committees launched a
Joint Inquiry into the terrorist attacks of September 11, 2001 that destroyed the
World Trade Center and a portion of the Pentagon. In a press release committee
leaders announced 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.”1
After months of assembling data and taking testimony, public hearings began
on September18, 2002 that included extended presentations of the staff findings and
conclusions thus far reached by the staff. The series of hearings concluded on
October 17 with testimony by the Director of Central Intelligence (DCI) and the
Director of the Federal Bureau of Investigation (FBI). It is expected that a final
report will be prepared for release in early 2003.
As the Joint Inquiry completes it work and committee members draft their final
report, on November 27, 2002 Congress passed the FY2003 Intelligence
Authorization Act which establishes an independent commission with a charter to
conduct a wide-ranging investigation and assessment of the events surrounding the
9/11 attacks. The commission, which will be headed by former New Jersey
Governor Thomas H. Kean (appointed by President Bush on December 16, 2002 after
the initial appointee, former Secretary of State Henry Kissinger, withdrew),2 is
1An Initial Scope of Joint Inquiry adopted and made public by the two intelligence
committees in June 2002 listed the Inquiry’s purposes, viz., investigating the evolution of
the international terrorist threat to the U.S. and the response of the Intelligence Community,
what was known prior to September 11 about the scope and nature of possible attacks, what
was subsequently learned about the events, whether there were systemic problems that
effected intelligence agencies’ ability to learn of or prevent the attacks, the interaction of
intelligence agencies with federal, state, and local officials, ways in which responses to past
problems had affected counterterrorism, and other information that would allow the
intelligence committees to propose legislation and administrative or structural changes if
determined to be necessary or desirable.
2Other commission members are former Representative Lee H. Hamilton (who will serve
as vice chairman); Richard Ben-Veniste, a former Federal prosecutor; Senator Max Cleland;
(continued...)
intended to take the evidence and findings produced by the Joint Inquiry into
consideration as it undertakes its work which is planned to take some 18 months.
The commission is expected to make recommendations concerning organizational
and statutory changes to enhance the ability of the entire government to prevent
future terrorist attacks.
The Joint Inquiry of the Intelligence Committees
In the immediate aftermath of September 11, 2001, there was widespread
support for an investigation of the performance of relevant agencies would be
necessary following, in part, the precedent of the congressional investigation of the
Japanese attack on Pearl Harbor in 1941.3 The Administration indicated some
concern at the time that a wide-ranging investigation could make heavy demands on
senior policymakers at a time of crisis (similar arguments had been made during
World War II and the major congressional inquiry of Pearl Harbor did not begin until
after hostilities ended in 1945). Nevertheless, public anxieties about a possible
“intelligence failure” led to the conclusion that an official investigation was needed.
The House voted to establish an independent commission to investigate the
attacks during consideration of the FY2002 Intelligence Authorization bill (H.R.
2883), but the provision was dropped by the conference committee because some
Members preferred that Congress conduct its own investigation with a mandate
focused primarily on the role of intelligence and law enforcement agencies. In
February 2002, the two intelligence committees initiated a Joint Inquiry with a staff
separate from that of the existing intelligence committees. Difficulties over staff
assignments complicated the Inquiry’s early months. The first staff director, L. Britt
Snider, a former general counsel of the Senate Intelligence Committee and inspector
general of the Central Intelligence Agency (CIA), resigned in April 2002 as a result
of concerns about some of his staff appointments. It was some weeks later that
Eleanor Hill, a former inspector general of the Defense Department, took over as
staff director. Public hearings, originally anticipated in May, were postponed several
times and finally began in mid-September.
The Joint Inquiry staff has consisted of twenty-four professionals with
backgrounds in intelligence collection, analysis, management, law enforcement,
investigations and oversight. The staff was divided into five investigative teams to
investigate different aspects of the question. The teams are assigned to CIA, the FBI,
and the National Security Agency (NSA). In addition, documents were collected and
2 (...continued)
Fred Fielding, a former White House Counsel; Jamie Gorelick, a former Assistant Attorney
General; former Senator Slade Gorton; John F. Lehman, a former Secretary of the Navy;
Representative Tim Roemer; and former Illinois Governor James R. Thompson.
3For background on the congressional investigations of Pearl Harbor, see Wayne Thompson,
“The Pearl Harbor Inquiry, 1945,” in Congress Investigates: A Documented History, 1792-
Martin V. Melosi, Shadow of Pearl Harbor: Political Controversy over the Surprise Attack,
interviews conducted at other federal agencies, including the Treasury, Defense,
State, Justice, Transportation, and Energy Departments as well as some private sector
individuals and organizations. Ms. Hill indicated that the staff has reviewed over
400,000 pages of documents, identified over 66,000 pages for the Inquiry’s central
records, and documented some 400 interviews and technical discussions.4
The hearings have also revealed some disagreements about Joint Inquiry
procedures. Some Members have expressed concern about making public an interim
report that had not been approved by the committees.5 Complaints have surfaced that
intelligence agencies have at times been uncooperative in providing information to
committee staff. On the other hand, great offense was taken when a briefing book
prepared by Inquiry staff for committee members to use on September 26 suggested
that a CIA official might “dissemble” in regard to a certain line of questioning. Some
Members opposed the holding of public hearings prior to the completion of the
investigation and there have been reports of communications breakdowns within the
committee.6
Nevertheless, the September-October 2002 public hearings and the public
statements of Ms. Hill have provided insights into the directions taken by the Joint
Inquiry staff as well as the staff conclusions that the two committees may draw from
the investigation as they prepare their report. Public hearings included testimony by
representatives of victims’ families, by law enforcement and intelligence officials
involved in the counterterrorism efforts, by outside experts on the intelligence and
law enforcement communities, and by current and former senior officials from the
National Security Council (NSC) and the intelligence and law enforcement
communities.
Analysis Presented by Staff Director
Eleanor Hill, in her initial public statement before the Joint Inquiry on
September 18, emphasized:
... the Intelligence Community did have general indications of a possible terrorist
attack against the United States or U.S. interests overseas in the spring and
summer of 2001 and promulgated strategic warnings. However, it does not
appear to date that the Intelligence Community had information prior to
September 11 that identified precisely where, when and how the attacks were to7
be carried out.
4Eleanor Hill, Staff Director, Joint Inquiry Staff, Joint Inquiry Staff Statement, Part I,
September 18, 2002, pp. 4-6.
5See comments of Senator Kyl, Joint House and Senate Select Intelligence Committee
Hearing, September 18, 2002, FDCH Political Transcripts, p. 56.
6See the comments of Senator Shelby, Joint House and Senate Select Intelligence Committee
Hearing, September 18, 2002, FDCH Political Transcripts, p. 6.
7Joint Inquiry Staff Statement, Part I, Eleanor Hill, Staff Director, Joint Inquiry Staff,
(continued...)
Ms. Hill traced the history of the Intelligence Community’s concern with the
international terrorist threat back into the 1980s and its focus on Al Qaeda from the
early 1990s. A Counterterrorist Center (CTC) had been established at the CIA in
1986 consisting of personnel from various intelligence agencies and the FBI. By
mid-2001 it consisted of some 400 personnel; a special unit within the CTC to
monitor Osama bin Laden had been created in 1996. Ms. Hill traced the response of
agencies to the series of terrorist attacks, including the one on the New York World
Trade Center in February 1993, an unsuccessful plot to bomb New York City tunnels,
the 1996 Khobar Towers bombing, a plot to kill the Pope in Manila and blow up 12
U.S.-owned airliners over the Pacific Ocean, a plan to attack the Los Angeles Airport
in December 1999, the August 1998 bombings of two U.S. Embassies in Africa, and
the attack on the USS Cole in October 2000. Despite extensive casualties and
property damage that have been inflicted by Al Qaeda, she noted that effective
intelligence and law enforcement work by U.S. agencies, in cooperation with foreign
countries, disrupted other planned attacks that would have been very costly.
Ms. Hill surveyed the response of government agencies to terrorist attacks prior
to 2001 and noted that they represented a threat much different from those that
existed during the Cold War. By the mid-1990s, however, a National Intelligence
Estimate called attention to a “new breed” of terrorists who had no state sponsor, was
loosely organized, had an Islamic agenda, and a “penchant for violence.”8 By1996
attention had focused on Osama bin Laden and Al Qaeda operating out of
Afghanistan. Ms. Hill discussed the increasing focus of intelligence and law
enforcement agencies on terrorism and the augmentation and creation of special units
to track them, cooperative efforts with foreign governments to suppress terrorist
groups and to arrest individuals involved in terrorism, the development of new legal
strategies, and the expansion of the FBI presence overseas.
Ms. Hill noted that intelligence agencies issued growing warnings of attacks in
the spring and summer of 2001 although she acknowledged that it was the “general
view” of intelligence officials that an attack was more likely to occur overseas. She
cited a briefing prepared for senior government officials in early July 2001:
Based on a review of all-source reporting over the last five months, we believe
that UBL [Bin Laden] will launch a significant terrorist attack against U.S.
and/or Israeli interests in the coming weeks. The attack will be spectacular and
designed to inflict mass casualties against U.S. facilities or interests. Attack9
preparations have been made. Attack will occur with little or no warning.
The Staff Director further suggested that although the Intelligence Community
had consistently reported on Al Qaeda activities, a comprehensive listing of terrorist
7 (...continued)
September 18, 2002, p. 7.
8Eleanor Hill, Staff Director, Joint Inquiry Staff, Joint Inquiry Staff Statement, Hearing on
the Intelligence Community’s Response to Past Terrorist Attacks Against the United States
from February 1993 to September 2001, October 8, 2002, p. 8.
9Eleanor Hill, Staff Director, Joint Inquiry Staff, Joint Inquiry Staff Statement, Part I,
September 18, 2002, Ibid., p. 23.
threats to the United States had not been prepared, nor was specific attention given
to the possibility of using hijacked aircraft to attack U.S. facilities. Despite the threat
warnings issued in mid-2001, there was not a comprehensive effort to educate the
American public.
As Ms. Hill indicated in a lengthy statement on September 24, the Inquiry
devoted extensive attention to an electronic communication sent in July 2001 from
the FBI field office in Phoenix, Arizona, calling for further investigation of
individuals with possible ties to foreign terrorist organizations who were attending
flight colleges and universities in the U.S. The communication (often referred to as
the “Phoenix Memorandum”) was forwarded to FBI Headquarters, but did not
receive sustained attention there nor were its recommendations acted upon prior to
September 11. The episode reflected a number of administrative, legal, and policy
barriers that, taken together, Ms. Hill argued, may have prevented the FBI from
perceiving a pattern of planning for a terrorist attack using commercial aircraft. She
concluded: “The FBI handling of the Phoenix EC is symptomatic of a focus on short-
term operational priorities, often at the expense of long-term strategic analysis.”10
The Inquiry also addressed the question of three of the hijackers who had come
to the attention of the Intelligence Community prior to September 11, 2001. (Except
for two who had received speeding tickets, none of the hijackers had come to the
attention of law enforcement agencies.) Khalid al-Mihdhar and Nawaf al-Hazmi
(hijackers of Flight 77 which crashed into the Pentagon) were identified in early 2000
as having attended a meeting in Malaysia with a known Al Qaeda operative. As the
Staff Director stated on September 20, the Joint Inquiry staff concluded that the
names of these individuals should have been included in watchlists maintained by the
State Department, the Immigration and Naturalization Service, and the Customs
Service that might have led to their being denied entry into the U.S.11 In subsequent
testimony, the DCI concurred in this judgment and indicated that the reason for the
failure was the absence of a formal system in place for watchlisting suspected
terrorists, a lack of formal training, and the heavy counterterrorist workload.12 It was
only in August 2001 that the CIA recommended that four Bin Laden-related
individuals, including al-Mihdhar and Nawaf al-Hazmi, be watchlisted and denied
entry into the U.S. although by this time both of the latter were already present in this
country. The failure by CIA to provide earlier information on these men drew
particular criticism from Members, some of whom questioned whether individual
intelligence officials had been held accountable.13
10Eleanor Hill, Staff Director, Joint Inquiry Staff, The FBI’s Handling of the Phoenix
Electronic Communication and Investigation of Zacarias Moussaoui Prior to September 11,
11Eleanor Hill, Staff Director, Joint Inquiry Staff, The Intelligence’s Community’s
Knowledge of the September 11 Hijackers Prior to September 11, 2001, p. 6.
12Written Statement for the Record of the Director of Central Intelligence Before the Joint
Inquiry Committee, 17 October 2002, pp. 15-16.
13See the questioning by Senator Levin, House and Senate Intelligence Committees, Hearing,
October 17, 2002, FDCH Political Transcripts.
The Inquiry also delved extensively into the widely publicized case of Zacarias
Moussaoui, a French citizen seeking flight instruction in the U.S. who was detained
by the FBI in Minneapolis, Minnesota in August 2001, and remains under arrest
pending trial on charges of conspiracy to commit aircraft piracy. Moussaoui was
arrested on August 16, 2001 on immigration-related charges after suspicions had
been reported by an employee of the flight school in Minnesota that he had recently
enrolled in. FBI officials in Minnesota sought a warrant to investigate his notes and
computer disks, but authorization was not approved prior to September 11. There
was, according to Ms. Hill, excessive caution along with misunderstandings of the
requirements of the relevant statutes and lengthy debates over the advisability of a
criminal search warrant vs. a search under the provisions of the Foreign Intelligence
Surveillance Act (FISA).14 At one point the FBI had intended to deport Moussaoui
to France in order that French officials could search his belongings and forward the
results back to the U.S.
Moving to more general concerns, Ms. Hill described a number of basic
limitations to the U.S. response to the rise of Al Qaeda. First was the “unsolved
problem of sanctuary.” The U.S. had little capability to oppose or even to closely
monitor the network of training camps and headquarters in Afghanistan.15 Some
diplomatic pressure was brought to bear on the then-government of Afghanistan and
President Clinton ordered missile strikes on a presumed Al Qaeda site in August
1998, but, as she stated, “there was little effort to integrate all the instruments of
national power–diplomatic, intelligence, economic, and military–to address this
problem.”16
14The effects of the provisions of FISA are discussed below.
15Former National Security Adviser Samuel Berger testified that the CIA had maintained no
significant assets in Afghanistan after our withdrawal from the region in 1989. Comment by
Berger, House and Senate Select Intelligence Committees, Committee Hearing, September
16Eleanor Hill, Staff Director, Joint Inquiry Staff, Hearing on the Intelligence Community’s
Response to Past Terrorist Attacks Against the United States from February 1993 to
September 2001, October 8, 2002, p. 14. Former National Security Adviser Berger has
argued that insufficient public and congressional support existed to enable the
Administration to take stronger measures against Afghanistan; “I don’t think there [was]
anybody up here [on Capitol Hill] calling for an invasion of Afghanistan. I don’t think there
[was] anybody in the press calling for an invasion of Afghanistan. I just don’t think that was
something we would have had diplomatic support [for]. We would not have had basing
support. And, so, I don’t [think] the kind of full-scale war that we’ve seen since 9/11 was
feasible, unfortunately, before that.” House and Senate Intelligence Committees, Committee
Hearing, FDCH Political Transcripts, September 19, 2002, p. 35. Some observers would
note that the Clinton Administration had not focused on building a public consensus around
the dangers of Al Qaeda operating out of Afghanistan. Only after September 11 did the U.S.
seek regime change in Afghanistan; as DCI George Tenet stated, “Nothing did more for our
ability to combat terrorism than the President’s decision to send us into the terrorist’s
sanctuary. By going in massively, we were able to change the rules for the terrorists. Now
they are the hunted.” Written Statement for the Record of the Director of Central
Intelligence Before the Joint Inquiry Committee, 17 October 2002, p. 26 (italics in original).
Furthermore, Ms. Hill noted that government agencies were fighting terrorists
“without the benefit of what some would call their most potent weapon in that effort:
an alert and committed American public.”17 She stated that, while senior intelligence
and law enforcement officials were well aware of the threat from Al Qaeda, there had
been little effort to mobilize public opinion. She added that neither the Clinton nor
the Bush Administration before September 11 brought home to the American public
the extent of danger they faced from terrorist attacks.
Secondly, the Staff Director expressed specific concerns about the performance
of the FBI. She concluded that the Bureau remained focused on individual
prosecutions and “did not systematically and thoroughly make the changes necessary
to fight terrorism in the United States.” The Bureau, she argued, had very few
officials assigned to counterterrorism (especially outside the New York Field Office)
and give the effort a relatively low priority.
A fundamental problem, Ms. Hill argued, was an inability to systematically
collect information on terrorist plots against targets in the U.S.:
The FBI was not able to gather intelligence from disparate cases nationwide to
produce an overall assessment of [Al Qaeda’s] presence in the United States.
The FBI’s decentralized structure contributed to the Bureau’s inability to
correlate the knowledge its components possessed. In addition, the FBI’s case-18
based approach led the terrorist threat to be viewed through a narrow lens.
According to Ms. Hill’s statement, the FBI did not concentrate on radical activity in
the U.S. She stated that former National Security Adviser Berger had testified that
“the FBI assured him that there was little radical activity in the United States and that
this activity was ‘fully covered.’” There was, she added, a particular disinclination
to target suspects residing outside the U.S. (who could of course subsequently enter
the country). She concluded: “The FBI’s limited attention to the danger at home
reflects a huge gap in the U.S. government’s counterterrorism structure: a lack of
focus on how an international terrorist group might target the United States itself.
No agency appears to have been responsible for regularly assessing the threat to the
homeland.”19 The Joint Inquiry staff concluded that the FBI has been structured to
concentrate on gathering evidence on crimes to an extent that strategic analysis of
threats to the homeland did not receive adequate attention.20
17Eleanor Hill, Staff Director, Joint Inquiry Staff Statement, October 17, 2002, p. 5.
18Eleanor Hill, Statement of October 8, 2002, p. 16.
19Eleanor Hill, Statement of October 8, 2002, p. 17.
20The Inquiry received testimony from a former DIA analyst that the Justice Department did
not share information it collected with intelligence agencies: “...US agencies conducted a
vigorous investigation, to include a physical search, of the [A]l Qaeda cell leader in Nairobi
nearly a year prior to the 1998 Embassy bombings. Almost all of the results of this effort
were never shared with the terrorism analytical community due to concerns about the
criminal case. Most of the information was never properly exploited. In fact, a great deal
of it was only translated after the bombings themselves.” Statement for the Record, Lessons
Learned and Actions Taken in Past Events, 8 October 2002, Kie C. Fallis, p. 6. Ms. Hill
(continued...)
Ms. Hill addressed the question of the extent to which a law enforcement
approach to terrorist attacks was appropriate. “U.S. Government officials apparently
never intended to rely exclusively on law enforcement to fight terrorism. By default,
however, law enforcement tools became the primary instrument of American
counterterrorism strategy.”21 A number of individuals with terrorist connections were
prosecuted for immigration law violations; such efforts complicated the efforts of
terrorists but they concentrated on underlings rather than the masterminds who were
abroad and beyond the reach of U.S. justice. In addition, the need to prepare for trials
led to a disinclination by the FBI to cooperate with intelligence agencies out of
concern that evidence might be tainted by a link with intelligence agencies and not
usable in court proceedings. Osama Bin Laden was himself indicted in June 1998,
but that did not obstruct his activities.
The Staff Director drew attention to the institutional “walls” that had been
erected to govern the use of information acquired by intelligence and law
enforcement agencies. Many of the walls derived from the provisions of the Foreign
Intelligence Surveillance Act which was enacted in 1978 in order to ensure that the
Fourth Amendment protections against unreasonable searches were not undermined
by employing electronic surveillance that had been authorized for foreign
intelligence-gathering purposes.22 Ms. Hill noted that many of the “walls” derived
from guidance provided by the FISA Court and that FISA procedures have been
under judicial review.23
20(...continued)
also noted that the arrest of one individual in 1990 suspected of terrorist ties produced forty-
seven boxes of notes and paramilitary manuals, but “it would be at least two years before
much of the information was actually translated.” Eleanor Hill, Statement of September 18,
21Deputy Defense Secretary Wolfowitz noted in his testimony on September 19 the
“puzzlement of many Americans at why the FBI didn’t provide some of this information
[regarding terrorist plots]. In fairness to [the] FBI, it ought to be pointed out that, for very
good, substantial reasons, they are not supposed to report information on Americans to
intelligence agencies. This is an issue we’ve go to confront now, but they weren’t–it’s not
that they were stupid. They’re there under a different set of rules, rules that require people
to be very careful about information that can be prosecuted.” Comment by Wolfowitz,
Senate and House Intelligence Committees, Committee Hearing, FDCH Political
Transcripts, September 19, 2002, p. 15.
22See Elizabeth B. Bazan, The Foreign Intelligence Surveillance Act: An Overview of the
Statutory Framework, CRS Report RL40465, Updated April 29, 2002. The National
Security Act of 1947 specifically provided that the CIA would have no domestic law
enforcement powers or internal security functions (50 USC 403-3(d)(1)) in order to avoid
creating the sort of intelligence organizations that existed in European dictatorships. During
the Cold War it was relatively simple to discriminate between foreign and domestic threats,
but even during that time procedures that have complicated intelligence collection against
terrorist groups were established as a result of criticisms of expansive intelligence collection
efforts against domestic opponents of the Vietnam War who were alleged, in large measure
incorrectly, to have been working on behalf of foreign Communist elements.
23The Foreign Intelligence Surveillance Court of Review made public its decision in a case
dealing with processes for obtaining FISA court orders on November 18, 2002 that reflected
(continued...)
Many observers believe that, certainly in retrospect, the “walls,” or at least the
procedures established to maintain them, “snowballed” into an unworkable and
counterproductive set of bureaucratic hurdles. “Snowballed” was the term employed
by an FBI official in the New York Field Office who complained when information
on Khalid Al-Mihdhar and Nawaf Al-Hazmi was not made available to him out of
concern that his role as a criminal case investigator would be contaminated by
intelligence materials. He wrote on August 29, 2001:
Whatever has happened to this–someday someone will die–and wall or not–the
public will not understand why we were not more effective and throwing every24
resource we had at certain ‘problems.’
Ms. Hill noted that “walls” between law enforcement and intelligence also came into
play in regard to efforts by the New York FBI office to use full criminal investigative
resources against al-Mihdhar after information was obtained about a tangential
connection to the Cole attack.
Once it was determined in late August 2001 that Khalid al-Mihdhar was in the
United States, the search to determine his whereabouts was constrained by FBI
policies and practices regarding the use of intelligence information in FBI
criminal investigations. This limited the resources that were made available for
the FBI to conduct the search during a time in which al-Mihdhar and al-Hazmi
were purchasing their September 11 tickets and traveling to their last rallying25
points.
A major theme of the investigation has been inadequate communication between
and among the various intelligence and law enforcement agencies. Ms. Hill noted
that former FBI Director Freeh had maintained that the Bureau had provided all
available intelligence acquired by the Bureau to the CIA, but this was “an assertion
that individuals at the working level at the CIA strongly contest....”26 She concluded:
“The events of September 11, 2001 have led to an almost universal acknowledgment
in the United States Government of the need for consolidating and streamlining
collection, analysis, and dissemination of information concerning threats to the
United States and its interests.”27 There was no single point at which all the evidence
relating to terrorist threats within the U.S. could be sifted and the various “dots”
connected.
23(...continued)
in part the evidence presented to the Joint Inquiry.
24Prepared Statement of a New York Special Agent before the Select Committee on
Intelligence, United States Senate, and the Permanent Select Committee on Intelligence,
House of Representatives, September 20, 2002, p.3.
25Eleanor Hill, Statement of September 24, 2002, p. 22.
26Eleanor Hill, Staff Director, Joint Inquiry Staff, Joint Inquiry Staff Statement, Hearing on
the Intelligence Community’s Response to Past Terrorist Attacks Against the United States
from February 1993 to September 2001, October 8, 2002, p. 20.
27Eleanor Hill, Staff Director, Joint Inquiry Staff, Counterterrorism Information Sharing
with Other Federal Agencies and with State and Local Governments and the Private Sector,
October 1, 2002, p. 16.
Some observers have urged caution, however. They are concerned that the
removal of “walls” separating different types of information and analytical functions
could jeopardize not only necessary administrative divisions of effort, but also
important civil liberties by permitting the use of information obtained by intrusive
intelligence methods for criminal justice purposes and a much wider dissemination
of sensitive grand jury information to a large number of intelligence agencies.
Public Testimony by Witnesses
The public hearings conducted by the two intelligence committees provided an
opportunity to describe how intelligence and law enforcement agencies had reacted
to the rise of radical Islamic terrorism in the 1990s and the attacks on Bin Laden’s
organization by the Clinton Administration (although covert operations were only
briefly mentioned). Considerable attention was given to explaining why intelligence
on the terrorist connections of two individuals who turned out to be hijackers had not
been passed on to the State Department and INS as soon as the information had been
acquired. In addition, the hearings addressed the history of a memorandum from the
FBI’s Phoenix office calling attention to the presence of flight school students with28
possible terrorist connections. The committees also focused on unsuccessful efforts
by the FBI’s Minneapolis field office to seek legal approval to search Moussaoui’s29
affects. Finally, the hearings included discussion of proposals to reorganize
intelligence and law enforcement agencies to improve their counterterrorism
capabilities.
In general, the testimony suggested that government agencies were well aware
of the hostile intentions of Al Qaeda and similar groups. A number of serious
terrorist attacks were thwarted and those who planned them were arrested and
convicted. Efforts were made to enlist the assistance of foreign governments with
mixed success. The hearings provided descriptions of complex procedural problems
relating to the sharing of information from intelligence and law enforcement sources
and suggestions were made that agencies need better guidance on dealing with these
issues.30 The hearings also reflected a number of instances when information could
have been shared in accordance with then-existing procedures that might have
provided clues to the unfolding September 11 plot.
The hearings opened on September 18 with impassioned testimony by two
representatives of the families of those killed in the 2001 attacks. Kristen
Breitweiser, whose husband worked in the World Trade Center, pointed to
September 11th as “the devastating result of a catalogue of failures on behalf of our
government and its agencies.” She went on to note a number of specific failures by
28See Eleanor Hill, Staff Director, Joint Inquiry Staff, The FBI’s Handling of the Phoenix
Electronic Communication and Investigation of Zacarias Moussaoui Prior to September 11,
29Ib i d .
30For background on this issue, see CRS Report RL30252, Intelligence and Law
Enforcement: Countering Transnational Threats to the U.S., by Richard A. Best, Jr.
government agencies and asked for an investigation by an independent commission.31
Similarly, Stephen Push, another family representative, stated that “one thing is
already clear to me from the news reports about the intelligence failures that led to
the attacks: If the intelligence community had been doing its job, my wife, Lisa
Raines, would be alive today. She was a passenger on flight 77, the plane that was
crashed into the Pentagon.”32
Former National Security Adviser Samuel Berger testified on September 19
about the increasing priority that the Clinton Administration had given to
counterterrorism during its tenure, increasing budgets for the counterterrorism effort,
and the creation of a White House-level Counterterrorism Security Group to review
threats and follow up on them. Like other witnesses, Berger noted successes in
stopping some terrorist attacks such as the 1993 plot to bomb New York bridges and
tunnels, the conspiracy to blow up 12 U.S. commercial airliners in 1995, and an
attack on the Los Angeles airport planned for January 2000. He noted, however, that
the FBI was not as focused on counterterrorism as the CIA: “the view we received
from the Bureau was that Al Qaeda had limited capacity to operate in the U.S. and
any presence here was under surveillance.”33 Berger urged the improvement of
coordination and integration of intelligence, strengthening the role of the DCI over
the entire intelligence effort (while establishing a separate position of director of the
CIA), and greater emphasis on predictive intelligence which would provide tactical
warning. Berger also emphasized the importance of human intelligence, a covert
action capability, and adding resources to the analytical effort. Berger indicated that
“by and large, if there was a flood of intelligence information from the CIA, there
was hardly a trickle from the FBI.”34
FBI Director Robert S. Mueller, III provided a summary of information on
the nineteen hijackers, their travel to the U.S., attendance at flight schools, and the
financial transactions that supported them along with a chronology of their activities
from their arrival in the U.S. through September 11, 2001. He summarized:
Clearly, these 19 terrorists were not supermen using extraordinarily
sophisticated techniques. They came armed with simple box cutters. But they
also came armed with sophisticated knowledge about how to plan these attacks
abroad without discovery, how to finance their activities from overseas without
alarm, how to communicate both here and abroad without detection, and how to
exploit the vulnerabilities inherent in our free society.
31Comments by Kristen Breitweiser, Joint House and Senate Select Intelligence Committee,
Committee Hearing, FDCH Political Transcript, September 18, 2002, p. 9.
32Ibid., Comments by Stephen Push, pp. 15-16. Push made a number of recommendations
for restructuring the nation’s intelligence effort, including the creation of a new domestic
intelligence agency, closer links with state and local law enforcement agencies, and setting
up a separate oversight subcommittee specifically for intelligence on terrorism.
33Samuel R. Berger, Joint Intelligence Committee Testimony, Washington, D.C., September
34Comment by Berger, House and Senate Select Intelligence Committees, Committee
Hearing, FDCH Political Transcripts, September 19, 2002, p. 12.
There were no slip ups. Discipline never broke down. They gave no hint to
those around them what they were about. They came lawfully. They lived
lawfully. They trained lawfully. They boarded the aircraft lawfully. They
simply relied upon everything from the vastness of the Internet to the openness35
of our society to do what they wanted to do without detection.
Mueller acknowledged:
We have heard, and we acknowledge, the valid criticisms, many of which have
been reiterated by this Committee. For example, the Phoenix memo should have
been disseminated to all field offices and to our sister agencies; and the 26-page
request form Minneapolis for a FISA warrant should have been reviewed by36
attorneys handling the request.
Testimony from Mueller was supplemented by his predecessor Louis Freeh
who had left office in June 2001. On October 8, 2002 Freeh described the
counterterrorist efforts of the Bureau during his tenure. The number of FBI special
agents assigned to counterterrorism more than doubled. The stationing of some 44
legal attaches in U.S. embassies throughout the world represented one step to
improve the acquisition of information on terrorist activities. The legal attaches
have also been helpful in facilitating the extradition (or transfer) of suspected
terrorists to the U.S. or other countries. In addition, some 56 Joint Terrorism Task
Forces (JTTFs) have been established to integrate the investigative capabilities of the
FBI with those of local law enforcement agencies. The FBI’s Counterterrorism
Center was established in 1996 to coordinate threat analysis and counterterrorist
operations in the U.S. In lengthy testimony on October 8, Freeh described his
involvement in the investigation of the 1996 bombing of the Khobar Towers
apartment complex in Saudi Arabia that resulted in the deaths of 19 American
servicemen with 500 wounded. The FBI received cooperation from the Saudi
government, and acquired direct access to several suspects who may have had Iranian
connections. Freeh acknowledged that “Khobar represented a national security threat
far beyond the capability or authority of the FBI or Department of Justice to address.
Neither the FBI Director nor the Attorney General could or should decide America’s
response to such a grave threat.”37
Freeh acknowledged longstanding problems in the FBI’s often criticized
information technology (IT) capabilities: “We didn’t just wake up one day and realize
that our IT systems were unable to perform even basic functions, such as e-mail and
electronic files that were available in other government agencies and the private
35Statement for the Record, FBI Director Robert S. Mueller III, Joint Intelligence Committee
Inquiry, 9/25/02, p. 14.
36Testimony of Robert S. Mueller, III, Director, Federal Bureau of Investigation Before the
Senate Select Committee on Intelligence and the House Permanent Select Committee on
Intelligence, October 17, 2002, p. 6.
37Statement of Louis J. Freeh, Former FBI Director, before the Joint Intelligence
Committees, October 8, 2002, p. 33.
sector.”38 Necessary upgrades were delayed, however, and new systems began to be
acquired only in September 2000. Freeh pointed out that September 11 changed
many of the rules under which FBI officials had previously operated. “For example,
FBI Agents were not permitted without special circumstances to visit a suspect
group’s web site or to attend its public meetings.”39 In May 2002 the Justice
Department issued new guidelines to remove such restrictions.40
Admiral Lowell Jacoby, the Director of the Defense Intelligence Agency
(DIA), expressed his concern about barriers that prevent analysts from having access
to all available information, in one of the few presentations that directly addressed
the analytical process. He argued that there is a need to create “a new paradigm
wherein ‘ownership’ of information belonged with the analysts and not the
col l ect ors.”
In my opinion, one of the most prolonged and troubling trends in the Intelligence
Community is the degree to which analysts–while being expected to incorporate
the full range of source information into their assessments–have been
systematically separated from the raw material of their trade. In fact, while I
acknowledge there are many pockets where groundbreaking, innovative, true all-41
source analysis is occurring, they are the exception, not the rule.
Testimony in public sessions suggested widespread support for breaking down
barriers to a freer exchange of information among law enforcement and intelligence
agencies. Especially emphatic was Mary Jo White, the former U.S. Attorney for the
Southern District of New York and a lead figure in important terrorism
investigations, who stated:
The single most important recommendation I would make to the
Committees would be to address the full range of issues presented by the
bifurcation of the intelligence and law enforcement communities and functions,
as they operate in international terrorism investigations, including the
permissible use of FISA and the dissemination and use of the product of FISA42
searches and surveillances.
Her comments were echoed by the Director of NSA, General Michael Hayden, who
testified on October 17 that:
As a practical matter, we have chosen as a people to make it harder to conduct
electronic searches for a law enforcement purpose than for a foreign intelligence
38Louis Freeh Statement, October 8, 2002, p. 36.
39Louis Freeh Statement, October 8, 2002, p. 43.
40See Bill Miller, “Ashcroft: Old Rules Aided Terrorists; FBI Agents Get Freer Hand; Civil
Liberties Groups Criticize New Guidelines,” Washington Post, May 31, 2002, p. A13.
41Statement for the Record for the Joint 9/11 Inquiry, 1 October 2002, Information Sharing
of Terrorism-Related Data, Rear Admiral Lowell E. Jacoby, US Navy, Acting Director,
Defense Intelligence Agency, p. 6.
42Statement of Mary Jo White, Former United States Attorney for the Southern District of
New York before the Joint Intelligence Committees, October 8, 2002, p. 27.
purpose. This is so because law enforcement electronic searches implicate notthth
only 4 Amendment privacy interests, but also 5 Amendment liberty interests.
After all, the purpose of traditional law enforcement activity is to put criminals
behind bars.
Hayden’s challenge to Congress was almost identical to that of Ms. White:
Let me close by telling you what I hope to get out of the national dialogue that
these committees are fostering. I am not really helped by being reminded that I
need more Arabic linguists or by someone second-guessing an obscure intercept
sitting in our files that may make more sense today than it did two years ago.
What I really need you to do is talk to your constituents and find out where the43
American people want that line between security and liberty to be.
James Gilmore, the Chairman of the Advisory Panel to Assess Domestic
Response Capabilities for Terrorism Involving Weapons of Mass Destruction, also
testified that his panel continues “to believe that improvements in intelligence and
information sharing are central to the nation’s efforts to combat terrorism. They are,
as we see it, the most crucial and fundamental requirement.”44
The Director of Central Intelligence, George J. Tenet, testified in a public
hearing on October 17. In his prepared remarks, Tenet traced Intelligence
Community tracking of the emergence of Bin Laden as a terrorist leader during the
1990s, especially after his move from the Sudan to Afghanistan in 1996, his issuance
of various fatwas against the U.S., and his involvement in terrorist attacks on U.S.45
forces. Tenet alluded to a comprehensive operation plan prepared in 1999 to
disrupt Al Qaeda finances, impede their activities and bring Osama Bin Laden to
justice. The plan included not only heightened analytical efforts to track Al Qaeda but
also to act against the terrorist organization. Seeking candidates fluent in Middle
Eastern and South Asian languages and with police, military, business, technical, or
academic experience, CIA recruited and trained officers for counterterrorist
assignment. Tenet stated: “By 9/11, a map would show that these collection
programs and human networks were in place in such numbers to nearly cover
Afghanistan. This array meant that, when the military campaign to topple the
Taliban and destroy [Al Qaeda] began last October, we were able to support it with
43Statement for the Record by Lieutenant General Michael V. Hayden, USAF, Director,
National Security Agency/Chief, Central Security Service Before the Joint Inquiry of the
Senate Select Committee on Intelligence and the House Permanent Select Committee on
Intelligence, 17 October 2002, pp. 11-12.
44Testimony of James S. Gilmore, III, Chairman, Advisory Panel to Assess Domestic
Response Capabilities for Terrorism Involving Weapons of Mass Destruction Before the
Joint Hearing of the U.S. Senate Select Committee on Intelligence and the House Permanent
Select Committee on Intelligence on the Joint Inquiry in the September 11 Attacks, October
45Bin Laden and Al Qaeda were not, however, the Intelligence Community’s sole
counterterrorist interest; through the mid-1990s Hizballah (which had been responsible for
more deaths of Americans than any other group prior to 9/11), Hamas, the Egyptian Islamic
Jihad, and other groups were even more important.
an enormous body of information and a large stable of assets.”46 Tenet pointed to a
number of successes–some 70 terrorists being brought to justice throughout the
world, an array of efforts aimed at preventing any terrorists attacks at the time of the
Millennium, and other efforts taken in conjunction with several European
governments to “identify and shatter” terrorist groups operating against American
and local interests in Europe. Other CIA initiatives were conducted in the Middle
East and East Asia. Tenet noted the upsurge in reports of potential terrorist activities
in the spring and summer of 2001 as being “[t]he only occasions in this reporting
where there was a geographic context, either explicit or implicit, [and] it appeared
to point abroad, especially to the Middle East.”47
In general, Tenet and other executive branch officials were well aware of the
danger of an Al Qaeda attack, especially in mid-summer 2001, but had the perception
that a near-term attack was most likely to occur abroad, most likely in the Middle
East. There was also a focus on a longer-term threat of a catastrophic attack within
the U.S. that would employ chemical, biological, or nuclear weapons.48 While there
had been instances in the past when airplanes had been hijacked by terrorists and
reports of plots to drive airplanes into buildings, these reports appeared within a vast
flow of data and analysts saw no reason to concentrate on them. They also suggest
that clues are far easier to perceive in hindsight rather than when they first come in,
mixed with many thousands of other bits of information that were irrelevant.
As was the case with other Intelligence Community leaders, Tenet noted the
effect of budgetary reductions in the early 1990s. He claimed that CIA lost nearly
one in four of its positions (although he did not indicate whether these positions were
tied to Cold War missions that were no longer relevant to the concerns of
policymakers). At the same time, however, Tenet argued that funding for
counterterrorism had increased; CIA’s funding level for counterterrorism just prior
to September 11 was more than fifty percent above the FY1997 level. Tenet argued
that in the fall of 1998 he asked that intelligence funding for FYs2000-2005 be
increased by more than $2 billion annually and that similar requests were made for
FYs 2001-2005 and FYs 2002-2007. “Only small portions of these requests were
approved.” He noted that supplemental appropriations beginning in FY1999
supported the counterterrorist mission, but argued that supplemental appropriations
could not be counted on to build multi-year programs.49
46DCI Statement, October 17, 2002, p. 10.
47DCI Statement, October 17, 2002, p. 19.
48See for instance Comments by Deputy Secretary of Defense Paul Wolfowitz and Deputy
Secretary of State Richard Armitage in Senate and House Intelligence Committees,
Committee Transcript, FDCH Political Transcripts, October 19, 2002, p. 11.
49DCI Statement, October 17, 2002, p. 24-25.Dale Watson, a former FBI counterterrorism
official, testified that, “In ‘00 the FBI requested 180 agents and 680 for support in the ‘00
budget. What comes out the other end approved by Congress is five support people. In the
‘01 budget we asked for 30 agents, 397 support people. And what comes out the other end
is 0-0. In the ‘02 budget we asked for 203 agents, 104 support, and what comes out the
other end is 8 agents and 56 support people. . . . [I]n the ‘02 supplemental, right after 9/11,
we received 297 agents and 823 support people.” Comment by Watson, Senate and House
(continued...)
Committee Findings, Conclusions,
Recommendations and Additional Views
of the Vice Chairman
On December 10, 2002, the two intelligence committees released a series of
findings, conclusions, and recommendations pending release of a complete report
when security review is completed. In addition, Senator Shelby, the Vice Chairman
of the Senate Intelligence Committee, made public an extensive statement of his
additional views. These documents are available on the web site of the Senate Select
Committee on Intelligence.50
In large measure, the findings, conclusions, and recommendations are consistent
with Ms. Hill’s earlier public assessments. The findings emphasize that no agency
had information on the time, place, or specific nature of the attacks. They describe,
however, specific information that was available to agencies and “that appears
relevant to the events of September 11” but was not fully exploited. The findings
further suggested systemic weaknesses of intelligence and law enforcement
communities: an absence of emphasis on the counterterrorist mission, a decline in
funding, limited use of information technology, poor inter-agency coordination,
insufficient analytic focus and quality, and inadequate human intelligence. Above
all, there was a lack of a government-wide strategy for acquiring and analyzing
intelligence and for acting on it to eliminate or reduce terrorist threats.
On the basis of these findings, the two intelligence committees made a number
of recommendations, including the creation of a Cabinet-level position of Director
of National Intelligence, separate from the position of Director of the CIA, who
would establish priorities for collection, analysis, and dissemination throughout the
Intelligence Community and manage and oversee the execution of Intelligence
Community budgets. Also included was a recommendation calling for a
government-wide strategy for combating terrorism prepared by the NSC with an
intelligence component prepared by the Director of National Intelligence.
A number of recommendations centered on the newly-established Department
of Homeland Security (DHS), which should become “an effective all-source
terrorism information fusion center that will dramatically improve the focus and
quality of counterterrorism analysis and facilitate the timely dissemination of relevant
intelligence information, both within and beyond the boundaries of the Intelligence
49(...continued)
Intelligence Committees, Committee Hearing, FDCH Political Transcripts, September 26,
50[http://intelligence.senate.gov]. Several of the findings were redacted for national security
reasons. The complete Report of the Joint Inquiry into Intelligence Community Activities
Before and After the Terrorist Attacks of September 11, 2001 (H.Rept. 107-792) is awaiting
declassification.
Community.”51 DHS should have “full and timely access to all counterterrorism-
related intelligence information, including ‘raw’ supporting data as needed.”52
A number of recommendations addressed the need to improve the FBI’s
capabilities for intelligence gathering and analysis. Expressing concern that the FBI
might be unable to redirect its focus from criminal cases to intelligence gathering, the
intelligence committees raise the possibility of creating a new agency to perform
those functions. Other recommendations deal with the need for addressing the
technological challenges facing NSA. The committees also urged “sustained, long-
term investment in counterterrorism capabilities that avoid dependence on repeated
stop-gap supplemental appropriations.”53
In his 84-page statement of Additional Views, Senator Shelby, the Vice
Chairman of the Senate Intelligence Committee, criticized the inability or
unwillingness of the DCI to exert greater management and budgetary authority over
the Intelligence Community and called for a reexamination of the intelligence
provisions of the National Security Act of 1947. He expressed concern about the
failure of the Joint Inquiry to identify any of the individuals whose decisions, in his
view, left the country unprepared on September 11, 2001. He identified several
senior Intelligence Community leaders whom he believes should be faulted for
inadequate efforts to “overcome the institutional and cultural obstacles to inter-
agency cooperation and coordination that bedeviled counterterrorism efforts before
the attacks.”54
Senator Shelby noted that “the U.S. Intelligence Community is hard-wired to
fight the Cold War” and must be more agile and responsive to vague, shifting
transnational threats. Nevertheless, he does not argue that the Intelligence
Communities should be “hard-wired” to fight terrorists, but rather “we need an
Intelligence Community agile enough to evolve as threats evolve, on a continuing
basis.” Further, “we must not only learn the lessons of the past but learn how to keep
learning lessons as we change and adapt in the future.” The Intelligence Community
must, he suggests, develop “ways to ‘swarm’ personnel and resources from various
portions of the Community upon issues of particular importance as circumstances
demand.”55
In addition, Senator Shelby joined his colleagues in lamenting the lack of
coordination and information sharing among agencies. He criticized the dominant
role of collection agencies in maintaining control of information as “incompatible
51“Recommendations of the Final Report of the Senate Select Committee on Intelligence and
the House Permanent Select Committee on Intelligence Joint Inquiry into the Terrorist
Attacks of September 11, 2001,”December 10, 2002, p. 4.
52Ib i d .
53Ibid., p. 11.
54“Additional Views of Senator Richard C. Shelby, Vice Chairman, Senate Select
Committee on Intelligence, September 11 and the Imperative of Reform in the U.S.
Intelligence Community,” December 10, 2002, p. 11.
55Ibid., pp. 18-19 (italics in the original).
with our intelligence needs in the 21st century.” He also supported Admiral Jacoby,
the DIA Director, in calling for “information-holders to give analysts ‘deeper’ and
less conditional access to data than they have ever before enjoyed, and [he continued]
we must equip analysts with the tools needed to ‘mine’ these data-streams for useful
information.”56 He recalled that law enforcement agencies during the 1990s
accumulated a great deal of information about Al Qaeda and other terrorist groups
that “remained locked away in law enforcement evidence rooms, unknown to and
unstudied by counterterrorism (CT) analysts within the Intelligence Community.”57
The FBI was a particular target of the Vice Chairman: the Bureau “has shown
a disturbing pattern of collapse and dysfunction in its counterintelligence and
counterterrorism functions.”58 Senator Shelby suggested that “some kind of radical
reform of the FBI is in order, indeed, is long overdue,” although he did not
specifically advocate a new domestic intelligence collection agency.59
Senator Shelby also addressed the role of human intelligence (humint) in
counterterrorism. Although CIA officials have stated that they had operatives in
Afghanistan before September 11, “careful observers should not confuse the periodic
infiltration of operations for brief liaison meetings with friendly warlords for a real
HUMINT or paramilitary presence.”60 Shelby criticized the excessive dependence
on traditional human agents based in embassies whose primary function involves
contact with the intelligence services of the host government. There is, he argues, a
need for getting “undercover agents out (and at risk) amongst the ‘target’
population.”61 This, he also suggests, is an area in which the law enforcement
agencies have valuable experience from which the CIA could learn.
An Independent Commission: Possible Issues
With the passage of the Intelligence Authorization Act for FY2003 (P.L. 107-
306) Congress approved the establishment of an independent commission to assess
the background to the September 2001 attacks.62 The President signed the legislation
on November 27, 2002. A major consideration is providing assurance to the families
of victims and the public that the investigation of the background to 9/11 has not
been affected by an effort to shield government officials from censure and that all
56Ibid., pp. 37, 36.
57Ibid., p. 56.
58Ibid., p. 61.
59Ibid., p. 76.
60Ibid., p. 77.
61Ibid., p. 78.
62See CRS Report RS21310, The Intelligence Community and 9/11: Proposals for an
Independent Commission, by Richard A. Best, Jr.
relevant factors have been taken into consideration regardless of the restrictions of
security classification.
The independent commission will examine the facts and causes relating to the
attacks of September 11 and evaluate the evidence regarding the attacks gathered by
all relevant government agencies, making use of information gathered by the Joint
Inquiry and other investigations, and report findings, conclusions, and
recommendations for corrective measures. The independent commission is expected
to secure information from government agencies (by subpoena, if necessary), conduct
hearings, and submit findings, conclusions, and recommendations within 18 months.
An independent commission may make a far-reaching study of organizational
arrangements for collecting, analyzing, and disseminating information about terrorist
threats. It might address the question of whether the DCI should have additional
authority to manage intelligence resources to focus on key priorities. This proposal
has been made a number of times over the years, and although the DCI’s authorities
to establish priorities and oversee budget submissions have been strengthened in
recent years, a consensus has not yet emerged that the DCI should have direct control
of the major intelligence agencies in the Defense Department.
Another issue concerns the appropriate role of intelligence agencies in tracking
terrorists who may conduct operations in the U.S. This includes the role of long-
established “walls” that separate intelligence and law enforcement that have been
partially dismantled by the USA Patriot Act and other legislation. Also, some
observers believe that an independent commission could usefully review the
relationship of intelligence and information functions in the Department of Homeland
Security (DHS) before they become formalized and difficult to alter.63
Some believe that the overall relationship between intelligence and law
enforcement requires detached scrutiny. Frederick Hitz, a former CIA Inspector
General, testified on October 3 that there is a need for Congress to revisit the
prohibition in the National Security Act of 1947 against CIA involvement in
domestic law enforcement activities since the public will insist that the various
agencies cooperate in preventing future terrorist attacks.64 On the other hand, some
observers remain concerned that, although exceptional efforts to gather information
on Al Qaeda and some other terrorist groups are justified and widely supported by
the public, extensive use of traditional intelligence methods in domestic law
enforcement efforts could eventually undermine civil liberties and the entire justice
system. As Senator Graham, Chairman of the Senate Intelligence Committee,
testified in June 2002:
Finally, I believe that the events of September 11 compel a re-examination of the
scope, methodology, and limitations governing domestic collection of terrorism-
related intelligence. When, where, and under what circumstances should the
63See CRS Report RS21283, Homeland Security: Intelligence Support, by Richard A. Best,
Jr.
64Testimony of Frederick Hitz, Morning Session of a Joint Hearing of the House and Senate
Select Intelligence Committees, October 3, 2002, Federal News Service, p. 18.
government collect intelligence about the activities of U.S. citizens? Of lawful
visitors to our Nation? What techniques should be used and what techniques
should be prohibited? Is the present government structure, in which the FBI is
primarily responsible for collection of intelligence, foreign and domestic, within
the United States, adequate? Should we enhance our domestic collection
capabilities, and if so, how?
... this is a thorny subject, in which we must balance deeply-held civil liberty and65
privacy concerns with the need to protect our nation. This will not be easy.
The Joint Inquiry has sought to determine and describe the background to the
attacks of September 11, 2001. In describing procedures that may have affected the
ability of governmental officials to gain advance notice of the terrorists’ plans, the
Inquiry focused on testimony that suggested available information in the possession
of some agencies was not fully shared with others in a timely manner. Congress and
the executive branch have acted in the USA Patriot Act, in other legislation, and in
changed administrative procedures to address these issues. Some observers,
however, have criticized these changes, arguing that the roles of intelligence and law
enforcement are inherently different and that mixing them can undermine the civil
liberties of U.S. persons. Some observers suggest that the independent commission,
receiving extended testimony from intelligence, law enforcement, and legal experts,
could play a useful role in the achievement of a public consensus on the proper
balance between needs to protect the nation against international terrorists and to
protect civil liberties.
Conclusion
The final report of the two intelligence committees is expected to be submitted
in 2003 after it has been declassified. It will reflect the views of Members, which
may not necessarily coincide with the conclusions of the Joint Inquiry staff. It may
include judgments on the performance of agencies and their leaders. It may propose
changes in the responsibilities of agencies. It will undoubtedly influence the
oversight of the counterterrorist effort during the 108th Congress. The two
committees have, however, already made public a considerable amount of evidence,
analysis, and testimony that will support a deeper understanding of the background
to the September 11 attacks. The emphasis appears to be focused on a perceived
need to bridge the “walls” between intelligence and law enforcement and to
encourage the FBI’s current concentration on counterterrorism.
The investigations and the assessments of the tragic events of September 11,
2001 have not yet been concluded. Thus far, a number of statutory changes have
been enacted and a new Department of Homeland Security has been established.
Many observers believe that further changes may be necessary, especially in regard
65Prepared Testimony Before the Senate Governmental Affairs Committee, June 27, 2002,
by Senator Bob Graham, D-Florida, Chairman, Senate Select Committee on Intelligence,th
reprinted in U.S. Congress, Senate, 107 Congress, 2d session, Committee on Governmental
Affairs, Hearings, A Review of the Relationship Between a Department of Homeland
Security and the Intelligence Community, S. Hrg. 107-562, June 26 and 27, 2002, p. 195.
to intelligence and law enforcement, to confront what is likely to be a lengthy
campaign against the forces of international terrorism. Some believe that there
should be more precise statutory protections of civil liberties. The character and
extent of any changes remain under discussion.