The Proposed Authorities of a National Intelligence Director: Issues for Congress and Side-by-Side Comparison of S. 2845, H.R. 10, and Current Law
Released: 2004-10-05T00:00:00

Congressional Proposals Concerning NID Position

There have been a variety of proposals concerning the NID (4) position. Following the creationof the intelligence oversight committees in the Senate (1976) and in the House (1977), Congressconsidered charter legislation that included, among other proposals, one that would have created theposition of an NID to manage the IC. A presidentially selected deputy would have managed the CIA. Confronted by strong opposition to the overall legislation, which also included language governingcovert actions, the Committees did not report the respective bills.

In 1992, Senator David Boren and Representative David McCurdy, respective chairmen of the Senate Select Committee on Intelligence (SSCI) and House Permanent Select Committee onIntelligence (HPSCI), introduced legislation creating the NID position and giving the position theauthority to program and reprogram funds. Their legislation also would have created a separatedirector of CIA. Boren and McCurdy failed to win adoption of their legislation in the face ofopposition by the Department of Defense (DOD) and the congressional Armed Services Committees.

In December 2002, the Congressional Joint Inquiry Into Intelligence Community Activities Before and After the Terrorist Attacks of September 11, 2001 (5) , recommended that a new cabinetlevel Senate-confirmed NID position be established, and that a separate director be named to managethe CIA. The Joint Inquiry also recommended that the NID be granted the full range ofmanagement, budgetary and personnel responsibilities needed to make the entire IC operate as acoherent whole. (6)

DCI Budget-Related Responsibilities and Authorities Under the National Security Act of 1947 Are Seen by Some as Limited

Proponents of establishing the NID position contend the current IC management structure is characterized by an incoherence they attribute to two flaws. First, because the DCI is dual-hatted,heading both the IC and the CIA, they maintain he is too busy to do either job well. Second, theyargue that the DCI's hiring, firing and budget authorities are limited. From their perspective, theresult is an IC management structure that lacks direction and focus.

Any discussion of the NID concept invariably leads to a debate over whether the two jobs should be split, and whether current DCI budget authorities are strong enough to permit effectivemanagement of the IC.

With regard to budget authority, the National Security Act of 1947 authorizes the DCI to facilitate the development of an annual intelligence budget [1947 National Security Act, seeSec.103.(c)(1)(A) [50 U.S.C. 403-3(c)(1)(A)]. The act also stipulates that the DCI prepare andapprove all budgets for each of the IC agencies comprising the National Foreign IntelligenceProgram (NFIP) (7) [1947 National Security Act, seeSec.104.[50 U.S.C. 403-4] (b)].

More than 85% of the intelligence budget, however, is executed by agencies not under the DCI's control. (8) Although the DCI has the authorityto approve all budgets for each of the ICagencies comprising the NFIP, he or she cannot transfer funds and personnel during the year ofbudget execution without the agreement of the agency head of the IC element that would be affectedby such a transfer. Moreover, the appropriation for the NFIP agencies, including the CIA, is givendirectly to the Secretary of Defense, who then disburses the funds to the various agencies, including the NFIP's three largest agencies -- the National Security Agency (NSA), the NationalReconnaissance Office (NRO) and the National Geospatial-Intelligence Agency (NGA). (9) Each ofthose agencies, among other tasks, supports Department of Defense (DoD) combat operations, andeach answers to the Secretary of Defense. The DCI is left with exclusive budget execution authorityonly over the CIA. (10) Some have asserted that,in part because of the DCI's relatively weak positionwith respect to the IC, DCIs historically have devoted the bulk of their time to managing the CIA andserving as the President's intelligence advisor, rather than overseeing the IC. (11)

Collins/Lieberman (S. 2845) and Hastert (H.R. 10) Would Establish an NID

Senators Susan Collins and Joe Lieberman, and Speaker of the House of Representatives Dennis Hastert, have separately introduced legislation that would establish the NID position. Bothbills would establish a presidentially-nominated, Senate-confirmed position of NID, who wouldserve as the head of the IC's 15 separate intelligence agencies, including the CIA. Both bills alsowould establish a separate Senate-confirmed Director of Central Intelligence, who would managethe CIA, and would be prohibited from serving simultaneously as the NID. See Appendix 1 for aside-by-side comparison of NID authorities in both bills.

Arguments Offered In Favor of Establishing an NID

Supporters of the NID concept argue that the DCI, who manages the IC and the CIA, and servesas the principal intelligence advisor to the President, has too many jobs, and that an NID, unburdenedby the need to manage the CIA, must be established if the IC is to be effectively managed. (12)

They also argue that an NID must be empowered with two authorities the DCI now lacks: the authority to hire and remove IC agency heads in consultation with the Defense Secretary (currently,the Secretary of Defense selects principal IC agency heads for the three combat support agencies --NSA, NRO, and NGA -- with the concurrence of the DCI); and the authority to move funding andpersonnel within or across IC agencies at any time during the year of execution with congressionalapproval. (13) Some proponents add what theycharacterize as a third essential authority -- the powerto set standards for the IC's information infrastructure and personnel. (14)

From the prospective of proponents, failure to establish an empowered NID with hiring, firing and budget authority will leave the IC with divided management of intelligence capabilities; lack ofcommon standards and practices across the foreign-domestic intelligence divide; structural barriersthat undermine the performance of joint intelligence work; and a weak capacity to set priorities andmove resources.

They cite DCI George Tenet's 1998 "declaration of war" (15) on Osama Bin Laden and thecorresponding lack of an integrated IC response as a clear indication of the need for an NID. (16) Senator Bob Graham, a co-chairman of the 9/11 congressional joint inquiry, stated, "The intelligencecommunity needs a leader with the clout to set common goals, establish priorities, knock heads andensure that the American people are protected." (17) To accomplish that goal, NID supporters argue,requires an empowered NID with clear statutory end-to-end IC budget and personnel authorities,including authority over those large portions of the NFIP budget now controlled by the Secretary ofDefense.

Arguments Offered in Opposition to Establishing an NID

Some opponents counter that although perhaps a good idea, establishing the position of NIDwill have only a marginal impact, and assert that had this change been made prior to the September11 attacks, it would not have significantly altered the way the U.S. dealt with Al Qaeda, and certainlywould not have prevented the 9/11 attacks. They suggest that a more important step would be to hiremore capable people throughout the IC. (18)

Other opponents contend that rather than strengthening control over the IC, the establishment of an NDI would actually weaken IC management. They assert an NID would lose day-to-daycontrol over the CIA, a natural power base. Without it, the NID will lose influence, according toopponents. Admiral Bobby Inman, Former Deputy DCI and NSA director, said that DCIs rely onthe CIA for their effectiveness and that an NID "would be like the Drug Czar," (19) a position thatcritics have argued has little management control over U.S. government agencies engaged incounternarcotics.

Other skeptics assert that establishing the position of NID will only add another layer of bureaucracy, and risks disruption at a time when terrorists continue to threaten to attack the UnitedStates.

Critics are likely to also assert that centralized management control will be further weakenedif the NID is not granted meaningful hiring, firing and budget authority. They may argue that theDCI's relatively robust authorities to approve IC budgets and control budget reprogramminghistorically have gone largely unused in the face of DOD opposition. In other words, critics say, theDCIs have had the authority, but simply have chosen not to exercise it.

Some critics have voiced concern about the 9/11 Commission's recommendations to locate the office of the NID in the executive office of the President. They contend that doing so risks thepoliticization of intelligence, would give the White House more direct control over covert operations,and would blur the line between foreign and domestic covert operations. (20) They also expressconcern that Congress will experience greater difficulty in conducting oversight of the IC becausethe proximity of the NID to the White House will more frequently raise the issue of executiveprivilege.

Some critics contend that the 9/11 Commission's concept of the NDI would shift too much influence over the IC to the Defense Department, because DOD would retain most of its roles underthe commission's proposal and, they say, stand to gain influence. In contrast, other critics of the NIDconcept oppose it because they believe NID authorities could be so strengthened that DOD interestsmight suffer, if an empowered NID were to favor providing more intelligence to policy makersrather than the warfighter. They argue the IC's three largest agencies -- NSA, NRO and NGA --are combat support agencies that collect and disseminate intelligence affecting tactical militaryoperations. It, therefore, is entirely appropriate, they argue, that the Secretary of Defense, rather thanthe DCI, control these agencies and the dollars that fund them, given that the needs of militarycommanders often differ from those of policymakers who generally are more interested in strategicintelligence. (21)

History of Recommendations to Centralize and Strengthen IC Leadership

The issue of centralized IC leadership was first addressed by the Second Hoover Commissionin 1955. The following lists those Commissions, reports, individuals, executive orders andlegislation that have addressed the issue of centralizing and strengthening IC leadership. (22)

Second Hoover Commission, 1955

The Commission on Organization of the Executive Branch of the Government, also known as the second Hoover Commission and chaired by former President Herbert Hoover, recommended thatmanagement of the CIA be turned over to an "executive officer," so that the DCI could focusattention on the IC.

The Schlesinger Report, 1971

President Nixon tasked the Office of Budget and Management to recommend changes in the IC's organization. Deputy OMB Director James R. Schlesinger, a future DCI, headed the effort andin his report considered the creation of an NID, but in the end recommended that "a strong DCI whocould bring intelligence costs under control and intelligence production to an adequate level ofquality and responsiveness." Schlesinger criticized the IC's failure to coordinate resources, blamingthe deficiency on the lack of a strong, central IC leadership that could "consider the relationshipbetween cost and substantive output from a national perspective."

Murphy Commission, 1975

The Commission on the Organization of the Government for the Conduct of Foreign Policy, chaired by former Deputy Secretary of State Robert D. Murphy, noted that the DCI exercised directcontrol over the CIA but had only limited influence over the IC as a whole. But rather thanrecommending a structural change, the Commission said it was neither possible nor desirable toextend the DCI's control to the large part of the intelligence community that lies outside the CIA.

Church Committee, 1976

The Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities, known as the Church Committee and headed by Senator Frank Church, did notrecommend establishing an NID but urged that DCI authorities be strengthened by appropriatingintelligence dollars directly to the DCI and by defining in statute DCI reprogramming authorities. The Committee also recommended that consideration be given to enhancing the DCI's managementof the IC by relieving him of day-to-day management of the CIA.

Pike Committee, 1976

The House Select Committee on Intelligence, chaired by Congressman Otis G. Pike, recommended that the DCI should manage the IC as a whole and not exclusively the CIA. TheCommission said the DCI should receive budget proposals from intelligence agencies comprisingthe community but did not indicate whether the DCI should have budget authority.

Clifford/Cline Proposals, 1976

Clark Clifford, a former Secretary of Defense under President Lyndon B. Johnson who had earlier participated in drafting legislation establishing the CIA, recommended that a new positionof Director of General Intelligence be established and that a separate CIA director be responsible formanaging the CIA.

Ray Cline, a former Deputy Director of the CIA, recommended that the DCI be given cabinet rank and broad supervisory authorities over the IC.

Charter Legislation, 1978

Following the establishment of the intelligence oversight committees in the Senate (1976) and in the House (1977), Congress considered charter legislation that, among other things, would havecreated an NID to manage the IC. A presidentially selected deputy would manage CIA. In the faceof strong opposition to the overall legislation, which also included language governing covertactions, the Committees did not report the respective bills.

Executive Branch Orders, 1976-1981

In an effort to head off further congressional action, President Gerald Ford in 1976 issued Executive Order (E.O.) 11905 naming the DCI as the President's primary intelligence advisorresponsible for developing the NFIP.

President Jimmy Carter in 1978 issued E.O. 12036 (superseding E.O. 11905) more clearly defining the DCI's community-wide authority in areas relating to the budget, tasking, intelligencereview, coordination, intelligence dissemination and foreign liaison.

President Ronald Reagan in 1981 continued the expansion of the DCI's community responsibilities and authorities, issuing E.O. 12333 (superseding E.O. 12036), which detailed theroles, responsibilities, missions, and activities of the IC. Executive Order 12333, which remainsin effect today, granted the DCI more explicit authority over the development, implementation, andevaluation of the NFIP.

Turner Proposal, 1985

Admiral Stansfield Turner, former DCI under President Carter, recommended establishing an NID to oversee the IC, and leaving responsibility for CIA day-to-day operations to a separate directorof CIA.

Boren-McCurdy, 1992

Senator David Boren and Congressman David McCurdy, respective chairmen of the Senate Select Committee on Intelligence (SSCI) and House Permanent Select on Intelligence (HPSCI),introduced legislation creating the position of an NID with authority to program and reprogramfunds, and creating a separate director of CIA. Boren and McCurdy failed to win adoption of theirlegislation in the face of opposition from DOD and the congressional Armed Services Committees.

Aspin-Brown Commission, 1996

The Commission on the Roles and Capabilities of the United States Intelligence Community (known as the Aspin-Brown Commission, after its respective chairmen Les Aspin and HaroldBrown) concluded that the relationship between the DCI and Secretary of Defense should not bealtered, but that the DCI should be given more time to manage the IC. The Commissionrecommended the creation of two deputies, one to help manage the IC and the other to manage theCIA. (23)

Specter/Combest, 1996

In the wake of the Aspin-Brown Commission report, Senator Arlen Specter and Congressman Larry Combest, respective chairmen of the SSCI and the HPSCI, sought to increase the clout of theDCI by giving him more control over the appointments of chiefs of defense-related agencies and thebudgets of those agencies. But faced with intense opposition from the Pentagon and itscongressional allies, they settled for more modest reform, agreeing to establish a new position ofdeputy DCI for community management and three assistant directors to oversee collection, analysis,and administration. (24) Although each were to beSenate confirmed, only the deputy intelligencedirector for community management and the assistant director for administration have beenconfirmed. Neither the Clinton nor George W. Bush Administration has chosen to submit to theSenate for confirmation the names of individuals now serving as assistant directors for collection andanalysis and production respectively.

Scowcroft Commission, 2001

A presidential commission chaired by retired Lt. Gen. Brent Scowcroft, the Chairman of President George W. Bush's Foreign Intelligence Advisory Board, reportedly recommended that thePentagon should cede to the DCI control over DOD's three largest intelligence operations -- NSA,NRO, and NGA. Although never made public, the report, according to media reports, was stronglyopposed by Secretary of Defense Donald Rumsfeld. (25) The report never was formally presented tothe President.

The Joint Inquiry Into September 11 Terrorist Attacks

The Congressional Joint Inquiry Into Intelligence Community Activities Before and After the Terrorist Attacks of September 11, 2001, recommended that a new cabinet level Senate-confirmedNID position be established and that a separate director be named to manage the CIA. The JointInquiry further recommended that the NID be granted full IC budget execution and personnelprogramming authorities. (26)

The 9/11 Commission

The 9/11 Commission, in a report issued in July, 2004, recommended the establishment of a presidentially appointed, Senate-confirmed National Intelligence Director who would overseenational intelligence centers on specific subjects of interest across the U.S. government, manage thenational intelligence program, oversee the agencies that contribute to it, and have hiring, firing andbudgetary authority over the IC's 15 agencies. The Commission recommended that the director belocated in the Executive Office of the President and that a deputy NID be established to oversee theday-to-day operations of the Central Intelligence Agency (CIA).

Appendix 1. Selected NID Legislation Compared to Current Law

Comparison of S. 2845, H.R. 10, and CurrentLaw