Reshaping the way the nation's intelligence agencies are run won't be easy. But the House's reform plan is misguided, and Washington has a long way to go.
Published October 22, 2004
The House-passed version of the intelligence reform legislation is full of misguided proposals and anti-civil liberties measures. It should get very little favor from House and Senate conferees. In the meantime, President Bush should turn off the pressure he is putting on conferees to get the legislation to his desk before Election Day. Reforming the way the nation's 15 intelligence agencies operate and are overseen is vital and sensitive work that should be conducted in a bipartisan manner without having to meet a politically contrived deadline.
The House and Senate measures are starkly divergent responses to the recommendations of the 9/11 commission. The Senate bill hews closely to the reforms the commission suggested, including creating a national intelligence director with "full budget authority" and the power to make personnel changes in the agencies. This approach has widespread support, even though it raises questions about the wisdom of vesting so much power in one individual who would be a White House insider.
The House bill is far worse and would create a position of national intelligence director and a corresponding intelligence bureaucracy, without giving the new Cabinet-level director the power to execute real reform. In addition, the House measure contains outright mischief with proposals that range far from the commission's recommendations. It has a series of anti-immigrant provisions that even the White House has rejected. Also slipped into the House version is a series of "Patriot Act II" provisions that would, among other things, increase the government's surveillance authority and reduce judicial oversight.
Currently, for the FBI to obtain a warrant from the secret federal foreign intelligence court, there has to be a connection between the subject of the surveillance and a foreign government or terrorist group. The House version would expand the court's jurisdiction to include individuals acting alone. The FBI can always go to the regular criminal courts to obtain eavesdropping warrants on individuals suspected of terrorism. But the agency wants to use the secret court for warrants even when a suspect has no ties to a foreign terrorist group. The purpose is to get around the proof requirements of the Fourth Amendment.
Another provision would change the presumption of bail for anyone charged with a terrorism crime. The government would no longer have to demonstrate that a suspect is dangerous or likely to flee in order for bail to be withheld. Instead, the individual charged would have to prove a negative - that he or she is not dangerous - in order to qualify for bail.
These and other proposals go beyond the intent of the commission. Thomas Kean and Lee Hamilton, the chairman and vice chairman of the commission, stated in a strongly worded letter to conferees that "this bill is not the right occasion for tackling controversial immigration and law enforcement issues that go well beyond the Commission's recommendations." They also insisted that an independent civil liberties board with "strong investigative powers" is needed as a safeguard. The White House and congressional Republicans oppose such a board.
The conferees should take this advice, and they should also disregard the White House's pressure for fast action. Just as the rush to pass the original USA Patriot Act led to some nasty surprises when legislators realized what they had done, intelligence reform done without enough thought or deliberation could create more problems than it solves.
