March 28, 2006
On April 7th, Michael Hurley will speak at William Mitchell College of Law on the future of counterterrorism. Hurley served as senior counsel to the 9/11 Commission. Below is a summary of the major findings of the 9/11 Commission, with excerpts from the report itself.
Summary prepared by Matt Ehling – November, 2004
STRUCTURE OF REPORT IN BRIEF
The report features a number of chapters, which can be grouped into three general categories:
1. A history of Islamic fundamentalist terrorism, and United States responses to it before 9/11.
2. A narrative description of the events leading up to and through 9/11, including what is known about Al-Qaeda planning, and missed opportunities on the part of U.S. intelligence and law enforcement agencies. The report also describes the federal, state and local responses to the 9/11 incident itself.
3. Commission recommendations about how to fix problems related to counter-terrorism policy, first-responder coordination, intelligence sharing, and other relevant matters.
This summary will concentrate on the third section, related to recommendations. Summarized information is in brackets. Report excerpts are in quotations.
APPOINT A NATIONAL DIRECTOR OF INTELLIGENCE
“Recommendation: The current position of Director of Central Intelligence should be replaced by a National Intelligence Director with two main areas of responsibility: (1) to oversee national intelligence centers on specific subject areas of interest across the US government and (2) to manage the national intelligence program and oversee the agencies that contribute to it.”
(The commission recommends that the National Director of Intelligence (NID) would be located within the executive office of the president. This position would move the CIA chief (the DCI) out of the role of overseeing the nation’s overall intelligence operations, and relegate the DCI to simply managing the CIA.)
ATTACK TERRORISTS AND THEIR ORGANIZATIONS.
(The Commission notes the danger of “failed states” like Afghanistan and the Arabian Peninsula as places where terrorists can plot and train with impunity.)
“Recommendation: The U.S. government must identify and prioritize actual or potential terrorist sanctuaries. For each, it should have a realistic strategy to keep possible terrorists insecure and on the run, using all elements of national power. We should reach out, listen to, and work with other countries that can help.”
TURN A NATIONAL STRATEGY INTO A COALITION STRATEGY
“Recommendation: The United States should engage other nations in developing a comprehensive coalition strategy against Islamic terrorism” … “This is a good place, for example, to develop joint strategies for targeting terrorist travel, or for hammering out a common strategy for the places where terrorists may be finding sanctuary.”
(The Commissions addresses the debate over the camp at Guantanamo Bay, and the treatment of “enemy combatants”.)
“Recommendation: The United States should engage its friends to develop a common coalition approach toward the detention and humane treatment of captured terrorists. New principles might draw upon Article 3 of the Geneva Conventions on the law of armed conflict. That article was specifically designed for those cases in which the usual laws of war did not apply. Its minimum standards are generally accepted throughout the world as customary international law.”
TARGET TERRORIST TRAVEL – IMPLEMENT STANDARDIZED IDs
“Recommendation: Targeting travel is at least as powerful a weapon against terrorism as targeting their money. The United States should combine terrorist travel intelligence, operations and law enforcement in a strategy to intercept terrorists, find terrorist travel facilitators, and constrain terrorist mobility.”
(The Commission recommends the creation of a de-facto national ID card, such as a standardized driver’s license, or passports with biometric identifiers, such as fingerprints and digital photos.)
“Recommendation: The Department of Homeland Security, properly supported by the Congress, should complete, as quickly as possible, a biometric entry-exit screening system, including a single system for speeding qualified travelers. It should be integrated with the system that provides benefits to foreigners seeking to stay in the United States. Linking biometric passports to good data systems and decision making is a fundamental goal. No one can hide his or her debt by acquiring a credit card with a slightly different name. Yet today, a terrorist can defeat the link to electronic records by tossing away an old passport and slightly altering the name in a new one.”
“Recommendation: Secure identification should begin in the United States. The federal government should set standards for the issuance of birth certificates and sources of identification, such as driver’s licenses. Fraud in identification documents is no longer just a problem of theft. At many entry points to vulnerable facilities, including gates for boarding aircraft, sources of identification are the last opportunity to ensure that people are who they say they are and to check whether they are terrorists.”
(The Commission endorses a consolidated and enhanced “no-fly” list system as part of U.S. efforts to frustrate terrorist travel. The current “no-fly” system is called CAPPS. The proposed successor system is known as CAPPS II, and it has generated considerable resistance from civil liberties advocates.)
“Recommendation: Improved use of “no-fly” and “automatic selectee” lists should not be delayed while the argument about a successor to CAPPS continues. This screening function should be performed by the TSA, and it should utilize the larger set of watch lists maintained by the federal government. Air carriers should be required to supply the information needed to test and implement this new system.”
(The Commission cites the need for increased information sharing among government agencies, but also calls for additional civil liberties protections to be implemented.)
“As the President determines the guidelines for information sharing among government agencies and by those agencies with the private sector, he should safeguard the privacy of individuals about whom information is shared.”
(The report discusses the PATRIOT Act and other mechanisms which have enhanced the government’s surveillance powers.)
“Recommendation: The burden of proof for retaining a particular governmental power should be on the executive, to explain (a) that the power actually materially enhances security and (b) that there is adequate supervision of the executive’s use of the powers to ensure protection of civil liberties. If the power is granted, there must be adequate guidelines and oversight to properly confine its use.”
(The report supports the information sharing provisions of the PATRIOT Act, but also calls for a broad national debate about oversight issues.)
EXCERPT (p 394) – “Congress responded, in the immediate aftermath of 9-11, with the Patriot Act, which vested substantial new powers in the investigative agencies of the government. Some of the most controversial provisions of the Patriot Act are to “sunset” at the end of 2005. Many of the act’s provisions are relatively non-controversial, updating America’s surveillance laws to reflect technological developments in a digital age. Some executive actions that have been criticized are unrelated to the Patriot Act. The provisions of the Act that facilitate the sharing of information among intelligence agencies and between law enforcement and intelligence appear, on balance, to be beneficial. Because of concerns regarding the shifting balance of power to the government, we think that a full and informed debate on the Patriot Act would be healthy.”
NOTES ON INFORMATION SHARING
(Many portions of the narrative about pre-9/11 intelligence failings indicate that existing surveillance powers under FISA were not properly used. The report provides many details which point to information sharing problems within the Justice Department during the 1990, as well as in the lead-up to 9/11. The report seems to indicate that these problems arose from institutional misunderstandings over information sharing rules that were implemented by Janet Reno deputy Jamie Gorelnick, rather than from a lack of existing legal authority to share information between the FBI’s criminal and intelligence agents. Reno deputy Gorelnick later served as one of the 9/11 Commissioners, which has led some to question elements of the report’s narrative.)
“In July 1995, Attorney General Janet Reno issued formal procedures aimed at managing information sharing between Justice Department prosecutors and the FBI. They were developed in a working group led by the Justice Department’s Executive Office of National Security, overseen by Deputy Attorney General Jamie Gorelnick. These procedures – while requiring the sharing of intelligence information with prosecutors – regulated the manner in which such information could be shared from the intelligence side of the house to the criminal side.”
“The Justice Department interpreted these rulings as saying that criminal prosecutors could be briefed on FISA information, but could not direct or control its collection.”
“These procedures were almost immediately misunderstood and misapplied. As a result, there was far less information sharing and coordination between the FBI and the Criminal Division in practice than was allowed under the department’s procedures. Over time the procedures came to be referred to as the “wall”.
“Bureaucratic maneuvers made by the FBI’s Office of Intelligence and Policy Review (OIPR), made OIPR the only gatekeeper for passing FISA information to the Criminal Division, although Reno’s 1995 guidelines did not mandate this. According to the report, it was also widely misunderstood that “the 1995 procedures dealt only with sharing between agents and criminal prosecutors, not between two kinds of FBI agents, those working on intelligence matters and those working on criminal matters.” … “Agents in the field began to believe – incorrectly – that no FISA information could be shared with agents working on criminal investigations.”
(The narrative provides examples of problems posed by misunderstandings about pre-9/11 information sharing procedures. The Commission highlights the missed opportunity to arrest hijacker Khalid Mihhdar, who was sought in connection with the bombing of the USS Cole before 9/11. The CIA had developed a lead that Mihdar had entered the United States during the summer of 2001. This information was passed on to FBI, and was shared with one intelligence agent, but was withheld from criminal agents who already had a criminal case against Mihdar open regarding the Cole bombing. The Commission believes that by not including the criminal agents in the information loop, a valuable opportunity to find Mihdhar was by-passed. Although the FBI supervisor who made this decision did so because of concerns about the “wall” procedures, the Commission does not fault the “wall” itself, but rather misinformation within the FBI about how these procedures were supposed to work.)
“It is now clear that everyone involved was confused about the rules governing the sharing and use of information gathered in intelligence channels. Because Mihdar was being sought for his possible connection to or knowledge of the Cole bombing, he could be investigated or tracked under the existing Cole criminal case. No new criminal case was needed for the criminal agent to begin searching for Mihdhar.”
NATIONAL CIVIL LIBERTIES OVERSIGHT BOARD
“During the course of our inquiry, we were told that there is no office within the government whose job it is to look across the government at the actions we are taking to protect ourselves to ensure that liberty concerns are appropriately considered. If, as we recommend, there is a substantial change in the way we collect and share intelligence, there should be a voice within the executive branch for those concerns. Many agencies have privacy offices, albeit of limited scope. The Intelligence oversight Board of the President’s Foreign Intelligence Advisory Board has, in the past, had the job of overseeing certain activities of the intelligence community.”
“Recommendation: At this time of increased and consolidated government authority, there should be a board within the executive branch to oversee adherence to the guidelines we recommend and the commitment the government makes to defend our civil liberties.
We must find ways of reconciling security with liberty, since the success of one helps protect the other. The choice between security and liberty is a false choice, as nothing is more likely to endanger Americas liberties than the success of a terrorist attack at home. Our history has shown us that insecurity threatens liberty. Yet, if our liberties are curtailed, we lose the values that we are struggling to defend.
(NOTE – Thus far, Congress has not been successful in creating a civil liberties oversight board. A board with this purpose was empaneled by the President, but it has faced criticism over its slate of appointees, who critics regard as being beholden to the White House. Also, as of March 2006, the board has yet to convene to begin its oversight work.)
(The Commission cites several other areas for increased attention:)
ENGAGE IN THE STRUGGLE OF IDEAS
STRENGTHEN COUNTER-PROLIFERATION EFFORTS
TARGET TERRORIST MONEY
DIRECT FINANCIAL ASSISTANCE FOR SECURITY TO AREAS OF GREATEST NEED
CONGRESS SHOULD SET ASIDE MORE RADIO BANDWIDTH FOR PUBLIC SAFETY USAGE
THE PRIVATE SECTORY SHOULD BE ENCOURAGED TO ENHANCE ITS OWN SECURITY
GATHER ALL INFORMATION STREAMS UNDER ONE CENTRAL UMBRELLA; INVOLVE ALL PERTINENT AGENCIES IN JOINT ACTION AGAINST TERRORISM
“Primary responsibility for terrorism analysis has been assigned to the Terrorism Threat Integration Center (TTIC), created in 2003, based at the CIA headquarters, but staffed with representatives of many agencies, reporting to the Director of Central Intelligence. Yet the CIA houses another intelligence fusion center the Counterterrorist Center that played such a key role before 9/11. A third major analytic unit is at Defense, in the Defense Intelligence Agency. A fourth, concentrating more on homeland vulnerabilities, is at the Department of Homeland Security.”
“The US government cannot afford so much duplication of effort. There are not enough experienced experts to go around.”
“A smart government would integrate all sources of information to see the enemy as a whole. Integrated all-source intelligence should also inform and shape strategies to collect more intelligence. Yet the Terrorist Threat Integration Center, while it has primary responsibility for terrorism analysis, is formally proscribed form having any oversight or operational authority, and is not part of any operational entity.”
“Recommendation: We recommend the establishment of a National Counterterrorism Center (NCTC), built on the foundation of TTIC. Breaking the older mold of national government organization, this NCTC should be a center for joint operational planning and joint intelligence, staffed by personnel from the various agencies. The head of the NCTC should have the authority to evaluate the performance of people assigned to the Center.”