The hasty rush to intelligence reform prevailed early in December, despite warnings from cooler heads. Last August, Dr. James Schlesinger, former head of the intelligence community and past Secretary of Defense, said in testimony before the Senate Armed Services Committee, "First, do no harm. In altering the structure of the intelligence community, it is essential to deliberate long and hard--and not to be stampeded into doing harm."

A Wall Street Journal editorial on November 22 observed, “If this reform is really so vital, it will get done, but better to do it in a more considered fashion next year.”

Congress ignored the warnings and ploughed ahead, despite deep divisions over the roles that the Pentagon and military—as opposed to a potentially powerful director of national intelligence—should play in the war on terrorism.

-- Should the military take the lead in fighting the war on terror, or should we approach the war on terrorism with small-scale, possibly covert, operations by taking the Pentagon out of the decision-making process and putting the task of going after terrorists in the hands of the intelligence czar?

-- Is it prudent to create a National Counter-terrorism Center overseen by a single director of national intelligence (DNI) heading up the CIA and other agencies and having control over budgets for intelligence agencies inside the Defense Department . . . potentially drawing money and personnel away from the Pentagon's intelligence agencies . . . having authority to move personnel out of combat support units, thereby threatening the military's chain of command . . . and with power to order military personnel and CIA operatives to carry out missions overseas without input from the director of the CIA or Secretary of Defense?

Other thorny issues pertained to the roles that border security, asylum issues, standardized identification documents, and immigration controls play in national security—and whether such issues should be addressed in the intelligence reform bill.

What Did We Get?

For a short time, it did appear that reform legislation would be postponed until after the beginning of the New Year, allowing time for deliberation and further study. However, politics over-ruled common sense, and Congress succumbed to near-hysterical charges that failure to pass intelligence reform in this session would make the country less safe and would be a callous and irresponsible response to the suffering and death of 9-11.

Bills were rushed through both houses, then cobbled together in conference committee into an omnibus bill of several hundred pages that few had read, much less “digested” at the time votes were taken. The final bill, the National Intelligence Reform Act, passed in both houses of Congress early in December, and the president has promised he will sign it. The question now is, what did we get?

The 243-page bill establishes the National Counter-terrorism Center and places it under the newly formed office of Director of National Intelligence. Other aspects of the bill focus on problems such as the need for better intelligence sharing and for standardized security clearances.

The bill includes measures tied to homeland security, among them big increases in number of border control agents, new laws aimed at alien smugglers, and some controversial provisions that broaden law enforcement authority.

The bill protects soldiers in the field by preserving the existing military chain of command, a provision that Duncan Hunter, chairman of the House Armed Services Committee, insisted upon. The Act leaves military command decisions to military commanders—something that Hunter insisted should not have been on the table in the first place.

The Pentagon and its allies on Capitol Hill (with quiet support from the White House) fought against giving the DNI too much power. The bill does grant the DNI limited power to move money and personnel, but the DNI can move funds only as long as they do not exceed $150 million or 5 percent of an agency's budget. (Source: David Kaplan, “Intelligence Reform-at last,” U.S. News.com, 12/20/04)

Many have doubts about this arrangement. “Without control of budget and personnel, all you have is the authority to use tact and goodwill,” says James Simon, who spent three years as an assistant director of central intelligence. (Kaplan, “Intelligence Reform . . .”)

The DNI's authority under the bill is often vaguely defined. Much will depend on personal relationships with other agency chiefs and on backing from the White House. Some reformers are concerned that President Bush may be reluctant to fully empower a DNI.

Another worry is that many in Washington will see this bill as the end, rather than the beginning of reform, as indeed it is. Critics say that few of the bill's changes really get to the heart of the failures leading up to 9/11, and that logically it will take decades to correct problems that have been decades in the making.

Security Measures: Mixed Bag

Rep. Elton Gallegly, chairman of the House International Terrorism, Nonproliferation and Human Rights subcommittee, was critical of the bill passed on December 7, saying, “Unfortunately, Congress has ignored the commission's warning that illegal immigration poses a substantial security risk for the United States.” The final bill dropped provisions that would deny asylum to terrorists.

Some House Republicans tried but failed in their attempts to include a provision that would prohibit states issuing driver's licenses to illegal aliens. (The nineteen 9-11 terrorists possessed a total of 63 validly-issued driver’s licenses.) Even bare-minimum, common sense fixes for that problem didn’t make it into the bill’s final draft. Nancy Pelosi and other Democrat critics characterized such measures as “controversial,” “egregious,” and “extraneous.”

Rep. Walter B. Jones (N.C.) was very critical of the final bill, noting that all jurisdiction concerning driver's licenses is transferred to the Department of Transportation—an area in which Homeland Security lacks any authority. Forty states currently have laws against issuing a driver's license to an illegal alien. However, Jones says the intelligence bill would weaken a state's ability to enforce its laws by allowing individuals who are denied a driver's license to legally challenge the clerk's denial. He noted that most states don't have the time or resources to defend thousands of lawsuits.

James Sensenbrenner was also critical on that point, saying the language in the final bill “is worse than current law” and that it virtually invites terrorists to come into our country and apply for drivers' licenses.

House Speaker Dennis Hastert admits the bill passed on December 7 lacks important security provisions. However, he says he will bring the drivers' license standards, asylum procedures, and other border security provisions back to the House floor early in the next session, and that the White House has promised it will support such legislation.

Sensenbrenner’s “Draw Play”?

On the plus side, syndicated columnist Joel Mowbray reported on December 16 that there were a number of significant victories, attributable to House Judiciary Committee chairman Sensenbrenner. Ironically, Mowbray says, Sensenbrenner scored wins precisely because his “controversial” immigration provisions dominated the Democrats’ focus.

Over the past year and a half, the federal definition of what constitutes “material support” for terrorist organizations has failed to hold up in court. Working with the Department of Justice, Sensenbrenner’s committee drafted a new definition that will have teeth, while also addressing the concerns of the courts. (Democrats opposed the new language.)

Another win was on the “lone wolf” provision. Under current law, terrorists believed to be acting on their own must be pursued and investigated under criminal, not counter-terrorism, law. The new language will eliminate the ridiculous double standard of affording civil liberties protections to terrorists who appear to be acting alone. (Democrats opposed the new language.)

Stringent mandatory minimum sentences for certain terrorism-related convictions also won passage. The “production, construction, import, export, possession, or use of dirty bombs, nukes, surface-to-air missiles, and smallpox” will now carry a statutory sentence of 25 years to life; if someone is killed, the penalty becomes life in prison or a death sentence. (Democrats opposed these mandatory minimums.)

Another significant win was a change in the process for renewing the official designation of Foreign Terrorist Organizations (FTOs). Every two years, the FBI, CIA, DOJ, and State Department must wade through a cumbersome process to renew the FTO designation of any terrorist group. The new bill changes the renewal period to five years and significantly streamlines the process. FTO-designated groups can still petition to be dropped from the list (a rare occurrence) but the burden of proof will be on them to show they are not engaged in any form of terrorism.

Although Sensenbrenner didn’t get some of the border security measures he had supported, his overall record suggests that (to use Mowbray’s words) “the Democrats only managed to throw him in the briar patch.”

Clearly, strong measures are still needed to prevent terrorists from so easily “gaming the system” as they did in the 9-11 attack. Time will tell whether Congress will adequately address the critical issues that “fell out” this time around. It will take vigilance on the part of the American people to force the extensive reform that is needed—partly, by exposing the motives of those who are willing to trade our security for political gain.

Stay tuned.