The Intelligence Community and 9/11: Congressional Hearings and the Status of the Investigation
Released: 2003-01-16T00:00:00

Introduction

In February 2002, the two congressional intelligence committees launched a Joint Inquiry intothe terrorist attacks of September 11, 2001 that destroyed the World Trade Center and a portion ofthe Pentagon. In a press release committee leaders announced that "Among the purposes of this jointeffort is ascertaining why the Intelligence Community did not learn of the September 11th attacks inadvance, and to identify what, if anything, might be done to better the position [of] the IntelligenceCommunity 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 bythe staff. The series of hearings concluded on October 17 with testimony by the Director of CentralIntelligence (DCI) and the Director of the Federal Bureau of Investigation (FBI). It is expected thata final report will be prepared for release in early 2003.

As the Joint Inquiry completes it work and committee members draft their final report, onNovember 27, 2002 Congress passed the FY2003 Intelligence Authorization Act which establishes an independent commission with a charter to conduct a wide-ranging investigation and assessmentof the events surrounding the 9/11 attacks. The commission, which will be headed by former NewJersey Governor Thomas H. Kean (appointed by President Bush on December 16, 2002 after theinitial appointee, former Secretary of State Henry Kissinger, withdrew), (2) is intended to take theevidence and findings produced by the Joint Inquiry into consideration as it undertakes its workwhich is planned to take some 18 months. The commission is expected to make recommendationsconcerning organizational and statutory changes to enhance the ability of the entire government toprevent future terrorist attacks.

The Joint Inquiry of the Intelligence Committees

In the immediate aftermath of September 11, 2001, there was widespread support for aninvestigation of the performance of relevant agencies would be necessary following, in part, theprecedent of the congressional investigation of the Japanese attack on Pearl Harbor in 1941. (3) TheAdministration indicated some concern at the time that a wide-ranging investigation could makeheavy demands on senior policymakers at a time of crisis (similar arguments had been made duringWorld War II and the major congressional inquiry of Pearl Harbor did not begin until after hostilitiesended in 1945). Nevertheless, public anxieties about a possible "intelligence failure" led to theconclusion 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 theprovision was dropped by the conference committee because some Members preferred that Congressconduct its own investigation with a mandate focused primarily on the role of intelligence and lawenforcement agencies. In February 2002, the two intelligence committees initiated a Joint Inquirywith a staff separate from that of the existing intelligence committees. Difficulties over staffassignments complicated the Inquiry's early months. The first staff director, L. Britt Snider, a formergeneral counsel of the Senate Intelligence Committee and inspector general of the CentralIntelligence Agency (CIA), resigned in April 2002 as a result of concerns about some of his staffappointments. It was some weeks later that Eleanor Hill, a former inspector general of the DefenseDepartment, took over as staff director. Public hearings, originally anticipated in May, werepostponed 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. Thestaff was divided into five investigative teams to investigate different aspects of the question. Theteams are assigned to CIA, the FBI, and the National Security Agency (NSA). In addition,documents were collected and interviews conducted at other federal agencies, including the Treasury,Defense, State, Justice, Transportation, and Energy Departments as well as some private sectorindividuals and organizations. Ms. Hill indicated that the staff has reviewed over 400,000 pages ofdocuments, identified over 66,000 pages for the Inquiry's central records, and documented some 400interviews 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 approvedby the committees. (5) Complaints have surfaced thatintelligence agencies have at times beenuncooperative in providing information to committee staff. On the other hand, great offense wastaken when a briefing book prepared by Inquiry staff for committee members to use on September26 suggested that a CIA official might "dissemble" in regard to a certain line of questioning. SomeMembers opposed the holding of public hearings prior to the completion of the investigation andthere 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 staffconclusions 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 andintelligence officials involved in the counterterrorism efforts, by outside experts on the intelligenceand law enforcement communities, and by current and former senior officials from the NationalSecurity 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 thespring and summer of 2001 and promulgated strategic warnings. However, it does not appear to datethat the Intelligence Community had information prior to September 11 that identified preciselywhere, when and how the attacks were to be carried out. (7)

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. ACounterterrorist Center (CTC) had been established at the CIA in 1986 consisting of personnel fromvarious intelligence agencies and the FBI. By mid-2001 it consisted of some 400 personnel; aspecial unit within the CTC to monitor Osama bin Laden had been created in 1996. Ms. Hill tracedthe response of agencies to the series of terrorist attacks, including the one on the New York WorldTrade Center in February 1993, an unsuccessful plot to bomb New York City tunnels, the 1996Khobar Towers bombing, a plot to kill the Pope in Manila and blow up 12 U.S.-owned airliners overthe Pacific Ocean, a plan to attack the Los Angeles Airport in December 1999, the August 1998bombings of two U.S. Embassies in Africa, and the attack on the USS Cole in October2000. Despiteextensive casualties and property damage that have been inflicted by Al Qaeda, she noted thateffective intelligence and law enforcement work by U.S. agencies, in cooperation with foreigncountries, 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. Bythe mid-1990s, however, a National Intelligence Estimate called attention to a "new breed" ofterrorists who had no state sponsor, was loosely organized, had an Islamic agenda, and a "penchantfor violence." (8) By1996 attention had focused onOsama bin Laden and Al Qaeda operating out ofAfghanistan. Ms. Hill discussed the increasing focus of intelligence and law enforcement agencieson terrorism and the augmentation and creation of special units to track them, cooperative effortswith 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 officialsthat an attack was more likely to occur overseas. She cited a briefing prepared for senior governmentofficials 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 inflictmass casualties against U.S. facilities or interests. Attack preparations have been made. Attack willoccur with little or no warning. (9)

The Staff Director further suggested that although the Intelligence Community had consistently reported on Al Qaeda activities, a comprehensive listing of terrorist threats to the United States hadnot been prepared, nor was specific attention given to the possibility of using hijacked aircraft toattack U.S. facilities. Despite the threat warnings issued in mid-2001, there was not a comprehensiveeffort 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 terroristorganizations 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 notreceive 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 attackusing commercial aircraft. She concluded: "The FBI handling of the Phoenix EC is symptomaticof 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 receivedspeeding 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 Qaedaoperative. As the Staff Director stated on September 20, the Joint Inquiry staff concluded that thenames of these individuals should have been included in watchlists maintained by the StateDepartment, the Immigration and Naturalization Service, and the Customs Service that might haveled to their being denied entry into the U.S. (11) Insubsequent testimony, the DCI concurred in thisjudgment and indicated that the reason for the failure was the absence of a formal system in placefor watchlisting suspected terrorists, a lack of formal training, and the heavy counterterroristworkload. (12) It was only in August 2001 that theCIA recommended that four Bin Laden-relatedindividuals, 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 toprovide earlier information on these men drew particular criticism from Members, some of whomquestioned whether individual intelligence officials had been held accountable. (13)

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 tocommit aircraft piracy. Moussaoui was arrested on August 16, 2001 on immigration-related chargesafter suspicions had been reported by an employee of the flight school in Minnesota that he hadrecently enrolled in. FBI officials in Minnesota sought a warrant to investigate his notes andcomputer disks, but authorization was not approved prior to September 11. There was, accordingto Ms. Hill, excessive caution along with misunderstandings of the requirements of the relevantstatutes and lengthy debates over the advisability of a criminal search warrant vs. a search under theprovisions of the Foreign Intelligence Surveillance Act (FISA). (14) At one point the FBI had intendedto deport Moussaoui to France in order that French officials could search his belongings and forwardthe 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 littlecapability to oppose or even to closely monitor the network of training camps and headquarters inAfghanistan. (15) Some diplomatic pressure wasbrought to bear on the then-government ofAfghanistan and President Clinton ordered missile strikes on a presumed Al Qaeda site in August1998, but, as she stated, "there was little effort to integrate all the instruments of nationalpower-diplomatic, intelligence, economic, and military-to address this problem." (16)

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 committedAmerican public." (17) She stated that, while seniorintelligence and law enforcement officials werewell aware of the threat from Al Qaeda, there had been little effort to mobilize public opinion. Sheadded that neither the Clinton nor the Bush Administration before September 11 brought home tothe 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 systematicallyand thoroughly make the changes necessary to fight terrorism in the United States." The Bureau, sheargued, had very few officials assigned to counterterrorism (especially outside the New York FieldOffice) 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 UnitedStates. The FBI's decentralized structure contributed to the Bureau's inability to correlate theknowledge its components possessed. In addition, the FBI's case-based approach led the terroristthreat to be viewed through a narrow lens. (18)

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 therewas 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 ofcourse subsequently enter the country). She concluded: "The FBI's limited attention to the dangerat home reflects a huge gap in the U.S. government's counterterrorism structure: a lack of focus onhow an international terrorist group might target the United States itself. No agency appears to havebeen responsible for regularly assessing the threat to the homeland." (19) The Joint Inquiry staffconcluded that the FBI has been structured to concentrate on gathering evidence on crimes to anextent that strategic analysis of threats to the homeland did not receive adequate attention. (20)

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 exclusivelyon law enforcement to fight terrorism. By default, however, law enforcement tools became theprimary instrument of American counterterrorism strategy." (21) A number of individuals with terroristconnections were prosecuted for immigration law violations; such efforts complicated the efforts ofterrorists but they concentrated on underlings rather than the masterminds who were abroad andbeyond the reach of U.S. justice. In addition, the need to prepare for trials led to a disinclination bythe FBI to cooperate with intelligence agencies out of concern that evidence might be tainted by alink with intelligence agencies and not usable in court proceedings. Osama Bin Laden was himselfindicted 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 wallsderived from the provisions of the Foreign Intelligence Surveillance Act which was enacted in 1978in order to ensure that the Fourth Amendment protections against unreasonable searches were notundermined by employing electronic surveillance that had been authorized for foreignintelligence-gathering purposes. (22) Ms. Hill notedthat many of the "walls" derived from guidanceprovided by the FISA Court and that FISA procedures have been under judicial review. (23)

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 ofbureaucratic hurdles. "Snowballed" was the term employed by an FBI official in the New York FieldOffice who complained when information on Khalid Al-Mihdhar and Nawaf Al-Hazmi was notmade available to him out of concern that his role as a criminal case investigator would becontaminated 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 throwingevery resource we had at certain 'problems.' (24)

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-Mihdharafter 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 byFBI policies and practices regarding the use of intelligence information in FBI criminalinvestigations. This limited the resources that were made available for the FBI to conduct the searchduring a time in which al-Mihdhar and al-Hazmi were purchasing their September 11 tickets andtraveling to their last rallying points. (25)

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 Freehhad maintained that the Bureau had provided all available intelligence acquired by the Bureau to theCIA, 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 acknowledgmentin 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) Therewas no single point at which all the evidence relating to terrorist threats within the U.S. could besifted and the various "dots" connected.

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 necessaryadministrative divisions of effort, but also important civil liberties by permitting the use ofinformation obtained by intrusive intelligence methods for criminal justice purposes and a muchwider 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 todescribe how intelligence and law enforcement agencies had reacted to the rise of radical Islamicterrorism 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 toexplaining why intelligence on the terrorist connections of two individuals who turned out to behijackers had not been passed on to the State Department and INS as soon as the information hadbeen acquired. In addition, the hearings addressed the history of a memorandum from the FBI'sPhoenix office calling attention to the presence of flight school students with possible terroristconnections. (28) The committees also focused onunsuccessful efforts by the FBI's Minneapolis fieldoffice to seek legal approval to search Moussaoui's affects. (29) Finally, the hearings includeddiscussion of proposals to reorganize intelligence and law enforcement agencies to improve theircounterterrorism 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 andthose who planned them were arrested and convicted. Efforts were made to enlist the assistance offoreign governments with mixed success. The hearings provided descriptions of complex proceduralproblems relating to the sharing of information from intelligence and law enforcement sources andsuggestions were made that agencies need better guidance on dealing with these issues. (30) Thehearings also reflected a number of instances when information could have been shared inaccordance with then-existing procedures that might have provided clues to the unfolding September11 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 intheWorld Trade Center, pointed to September 11th as "the devastating result of a catalogue of failureson behalf of our government and its agencies." She went on to note a number of specific failuresby 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 fromthenews reports about the intelligence failures that led to the attacks: If the intelligence community hadbeen 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-levelCounterterrorism 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 attackon the Los Angeles airport planned for January 2000. He noted, however, that the FBI was not asfocused on counterterrorism as the CIA: "the view we received from the Bureau was that Al Qaedahad limited capacity to operate in the U.S. and any presence here was under surveillance." (33) Bergerurged the improvement of coordination and integration of intelligence, strengthening the role of theDCI 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 alsoemphasized the importance of human intelligence, a covert action capability, and adding resourcesto the analytical effort. Berger indicated that "by and large, if there was a flood of intelligenceinformation 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 thatsupported them along with a chronology of their activities from their arrival in the U.S. throughSeptember 11, 2001. He summarized:

Clearly, these 19 terrorists were not supermen using extraordinarily sophisticated techniques. They came armed with simple box cutters. But they alsocame 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 andabroad without detection, and how to exploit the vulnerabilities inherent in our freesociety.

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 livedlawfully. They trained lawfully. They boarded the aircraft lawfully. They simply relied uponeverything from the vastness of the Internet to the openness of our society to do what they wantedto do without detection. (35)

Mueller acknowledged:

We have heard, and we acknowledge, the valid criticisms, many of which have been reiterated by this Committee. For example, the Phoenix memoshould have been disseminated to all field offices and to our sister agencies; and the 26-page requestform Minneapolis for a FISA warrant should have been reviewed by attorneys handling therequest. (36)

Testimony from Mueller was supplemented by his predecessor Louis Freeh who had left officein June 2001. On October 8, 2002 Freeh described the counterterrorist efforts of the Bureau duringhis tenure. The number of FBI special agents assigned to counterterrorism more than doubled. Thestationing of some 44 legal attaches in U.S. embassies throughout the world represented one step toimprove the acquisition of information on terrorist activities. The legal attaches have also beenhelpful in facilitating the extradition (or transfer) of suspected terrorists to the U.S. or othercountries. In addition, some 56 Joint Terrorism Task Forces (JTTFs) have been established tointegrate the investigative capabilities of the FBI with those of local law enforcement agencies. TheFBI's Counterterrorism Center was established in 1996 to coordinate threat analysis andcounterterrorist operations in the U.S. In lengthy testimony on October 8, Freeh described hisinvolvement in the investigation of the 1996 bombing of the Khobar Towers apartment complex inSaudi Arabia that resulted in the deaths of 19 American servicemen with 500 wounded. The FBIreceived cooperation from the Saudi government, and acquired direct access to several suspects whomay have had Iranian connections. Freeh acknowledged that "Khobar represented a national securitythreat far beyond the capability or authority of the FBI or Department of Justice to address. Neitherthe FBI Director nor the Attorney General could or should decide America's response to such a gravethreat." (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 toperform even basic functions, such as e-mail and electronic files that were available in othergovernment agencies and the private sector." (38) Necessary upgrades were delayed, however, and newsystems began to be acquired only in September 2000. Freeh pointed out that September 11 changedmany of the rules under which FBI officials had previously operated. "For example, FBI Agentswere not permitted without special circumstances to visit a suspect group's web site or to attend itspublic meetings." (39) In May 2002 the JusticeDepartment issued new guidelines to remove suchrestrictions. (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, inone of the few presentations that directly addressed the analytical process. He argued that there isa need to create "a new paradigm wherein 'ownership' of information belonged with the analysts andnot the collectors."

In my opinion, one of the most prolonged and troubling trends in the Intelligence Community is the degree to which analysts-while being expected toincorporate the full range of source information into their assessments-have been systematicallyseparated from the raw material of their trade. In fact, while I acknowledge there are many pocketswhere groundbreaking, innovative, true all-source analysis is occurring, they are the exception, notthe rule. (41)

Testimony in public sessions suggested widespread support for breaking down barriers to a freer exchange of information among law enforcement and intelligence agencies. Especially emphaticwas Mary Jo White , the former U.S. Attorney for the Southern District of New York and a leadfigure 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 ofthe intelligence and law enforcement communities and functions, as they operate in internationalterrorism investigations, including the permissible use of FISA and the dissemination and use of theproduct of FISA searches and surveillances. (42)

Her comments were echoed by the Director of NSA, General Michael Hayden , who testified onOctober 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 foreignintelligence purpose. This is so because law enforcement electronic searches implicate not only 4thAmendment privacy interests, but also 5th Amendment liberty interests. After all, the purpose oftraditional law enforcement activity is to put criminals behindbars.

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 thatI need more Arabic linguists or by someone second-guessing an obscure intercept sitting in our filesthat may make more sense today than it did two years ago. What I really need you to do is talk toyour constituents and find out where the American people want that line between security and libertyto be. (43)

James Gilmore , the Chairman of the Advisory Panel to Assess Domestic Response Capabilitiesfor Terrorism Involving Weapons of Mass Destruction, also testified that his panel continues "tobelieve that improvements in intelligence and information sharing are central to the nation's effortsto 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 October17. In his prepared remarks, Tenet traced Intelligence Community tracking of the emergence of BinLaden as a terrorist leader during the 1990s, especially after his move from the Sudan to Afghanistanin 1996, his issuance of various fatwas against the U.S., and his involvement in terrorist attacks onU.S. forces. (45) Tenet alluded to a comprehensiveoperation plan prepared in 1999 to disrupt Al Qaedafinances, impede their activities and bring Osama Bin Laden to justice. The plan included not onlyheightened 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 counterterroristassignment. Tenet stated: "By 9/11, a map would show that these collection programs and humannetworks were in place in such numbers to nearly cover Afghanistan. This array meant that, whenthe military campaign to topple the Taliban and destroy [Al Qaeda] began last October, we were ableto support it with an enormous body of information and a large stable of assets." (46) Tenet pointed toa number of successes-some 70 terrorists being brought to justice throughout the world, an array ofefforts aimed at preventing any terrorists attacks at the time of the Millennium, and other effortstaken in conjunction with several European governments to "identify and shatter" terrorist groupsoperating against American and local interests in Europe. Other CIA initiatives were conducted inthe Middle East and East Asia. Tenet noted the upsurge in reports of potential terrorist activities inthe spring and summer of 2001 as being "[t]he only occasions in this reporting where there was ageographic context, either explicit or implicit, [and] it appeared to point abroad, especially to theMiddle 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 wasmost likely to occur abroad, most likely in the Middle East. There was also a focus on a longer-termthreat of a catastrophic attack within the U.S. that would employ chemical, biological, or nuclearweapons. (48) While there had been instances in thepast when airplanes had been hijacked by terroristsand reports of plots to drive airplanes into buildings, these reports appeared within a vast flow ofdata and analysts saw no reason to concentrate on them. They also suggest that clues are far easierto perceive in hindsight rather than when they first come in, mixed with many thousands of other bitsof 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 (althoughhe did not indicate whether these positions were tied to Cold War missions that were no longerrelevant to the concerns of policymakers). At the same time, however, Tenet argued that fundingfor counterterrorism had increased; CIA's funding level for counterterrorism just prior to September11 was more than fifty percent above the FY1997 level. Tenet argued that in the fall of 1998 heasked that intelligence funding for FYs2000-2005 be increased by more than $2 billion annually andthat similar requests were made for FYs 2001-2005 and FYs 2002-2007. "Only small portions ofthese requests were approved." He noted that supplemental appropriations beginning in FY1999supported the counterterrorist mission, but argued that supplemental appropriations could not becounted on to build multi-year programs. (49)

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 iscompleted. 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 theweb 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 wasavailable to agencies and "that appears relevant to the events of September 11" but was not fullyexploited. The findings further suggested systemic weaknesses of intelligence and law enforcementcommunities: an absence of emphasis on the counterterrorist mission, a decline in funding, limiteduse of information technology, poor inter-agency coordination, insufficient analytic focus andquality, and inadequate human intelligence. Above all, there was a lack of a government-widestrategy for acquiring and analyzing intelligence and for acting on it to eliminate or reduce terroristthreats.

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 NationalIntelligence, separate from the position of Director of the CIA, who would establish priorities forcollection, analysis, and dissemination throughout the Intelligence Community and manage andoversee the execution of Intelligence Community budgets. Also included was a recommendationcalling for a government-wide strategy for combating terrorism prepared by the NSC with anintelligence 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 centerthat will dramatically improve the focus and quality of counterterrorism analysis and facilitate thetimely dissemination of relevant intelligence information, both within and beyond the boundariesof the Intelligence Community." (51) DHS shouldhave "full and timely access to allcounterterrorism-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 itsfocus from criminal cases to intelligence gathering, the intelligence committees raise the possibilityof creating a new agency to perform those functions. Other recommendations deal with the need foraddressing the technological challenges facing NSA. The committees also urged "sustained,long-term investment in counterterrorism capabilities that avoid dependence on repeated stop-gapsupplemental 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 greatermanagement and budgetary authority over the Intelligence Community and called for areexamination of the intelligence provisions of the National Security Act of 1947. He expressedconcern about the failure of the Joint Inquiry to identify any of the individuals whose decisions, inhis view, left the country unprepared on September 11, 2001. He identified several seniorIntelligence Community leaders whom he believes should be faulted for inadequate efforts to"overcome the institutional and cultural obstacles to inter-agency cooperation and coordination thatbedeviled 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, butrather "we need an Intelligence Community agile enough to evolve as threats evolve, on a continuingbasis." Further, "we must not only learn the lessons of the past but learn how to keep learninglessons 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 uponissues 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 inmaintaining control of information as "incompatible with our intelligence needs in the 21st century." He also supported Admiral Jacoby, the DIA Director, in calling for "information-holders to giveanalysts 'deeper' and less conditional access to data than they have ever before enjoyed, and [hecontinued] we must equip analysts with the tools needed to 'mine' these data-streams for usefulinformation." (56) He recalled that law enforcementagencies during the 1990s accumulated a great dealof information about Al Qaeda and other terrorist groups that "remained locked away in lawenforcement evidence rooms, unknown to and unstudied by counterterrorism (CT) analysts withinthe 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 longoverdue," 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 meetingswith friendly warlords for a real HUMINT or paramilitary presence." (60) Shelby criticized theexcessive dependence on traditional human agents based in embassies whose primary functioninvolves contact with the intelligence services of the host government. There is, he argues, a needfor getting "undercover agents out (and at risk) amongst the 'target' population." (61) This, he alsosuggests, is an area in which the law enforcement agencies have valuable experience from which theCIA 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 theSeptember 2001 attacks. (62) The President signedthe legislation on November 27, 2002. A majorconsideration is providing assurance to the families of victims and the public that the investigationof the background to 9/11 has not been affected by an effort to shield government officials fromcensure and that all relevant factors have been taken into consideration regardless of the restrictionsof 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 governmentagencies, making use of information gathered by the Joint Inquiry and other investigations, andreport findings, conclusions, and recommendations for corrective measures. The independentcommission is expected to secure information from government agencies (by subpoena, ifnecessary), conduct hearings, and submit findings, conclusions, and recommendations within 18months.

An independent commission may make a far-reaching study of organizational arrangements for collecting, analyzing, and disseminating information about terrorist threats. It might address thequestion of whether the DCI should have additional authority to manage intelligence resources tofocus on key priorities. This proposal has been made a number of times over the years, and althoughthe DCI's authorities to establish priorities and oversee budget submissions have been strengthenedin recent years, a consensus has not yet emerged that the DCI should have direct control of the majorintelligence 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 separateintelligence and law enforcement that have been partially dismantled by the USA Patriot Act andother legislation. Also, some observers believe that an independent commission could usefullyreview the relationship of intelligence and information functions in the Department of HomelandSecurity (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 thereis a need for Congress to revisit the prohibition in the National Security Act of 1947 against CIAinvolvement in domestic law enforcement activities since the public will insist that the variousagencies cooperate in preventing future terrorist attacks. (64) On the other hand, some observers remainconcerned that, although exceptional efforts to gather information on Al Qaeda and some otherterrorist groups are justified and widely supported by the public, extensive use of traditionalintelligence methods in domestic law enforcement efforts could eventually undermine civil libertiesand 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 collectionof terrorism-related intelligence. When, where, and under what circumstances should thegovernment collect intelligence about the activities of U.S. citizens? Of lawful visitors to ourNation? What techniques should be used and what techniques should be prohibited? Is the presentgovernment structure, in which the FBI is primarily responsible for collection of intelligence, foreignand domestic, within the United States, adequate? Should we enhance our domestic collectioncapabilities, and if so, how?

... this is a thorny subject, in which we must balance deeply-held civil liberty and privacy concerns with the need to protect our nation. This will not beeasy. (65)

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 governmentalofficials to gain advance notice of the terrorists' plans, the Inquiry focused on testimony thatsuggested available information in the possession of some agencies was not fully shared with othersin a timely manner. Congress and the executive branch have acted in the USA Patriot Act, in otherlegislation, and in changed administrative procedures to address these issues. Some observers,however, have criticized these changes, arguing that the roles of intelligence and law enforcementare inherently different and that mixing them can undermine the civil liberties of U.S. persons. Someobservers 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 consensuson the proper balance between needs to protect the nation against international terrorists and toprotect civil liberties.

Conclusion

The final report of the two intelligence committees is expected to be submitted in 2003 afterit has been declassified. It will reflect the views of Members, which may not necessarily coincidewith the conclusions of the Joint Inquiry staff. It may include judgments on the performance ofagencies and their leaders. It may propose changes in the responsibilities of agencies. It willundoubtedly influence the oversight of the counterterrorist effort during the 108th Congress. The twocommittees have, however, already made public a considerable amount of evidence, analysis, andtestimony 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 intelligenceand 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 Departmentof Homeland Security has been established. Many observers believe that further changes may benecessary, especially in regard to intelligence and law enforcement, to confront what is likely to bea lengthy campaign against the forces of international terrorism. Some believe that there should bemore precise statutory protections of civil liberties. The character and extent of any changes remainunder discussion.