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The Constraints and Obstacles Facing U.S. Intelligence

In these excerpts from FRONTLINE's interviews, experts point to a web of laws, regulations, and policies that have hindered American counterterrorism operations in recent decades -- from the ban on political assassinations to bureaucratic recruitment polices and prohibitions. Others cite the lack of qualified personnel and an intelligence culture that has not adapted to a post-Cold War world. Here are the views of Jeffrey Smith, former general counsel of the CIA; Lewis Schiliro, former assistant director of the FBI from 1998 to 2000; Congressman Porter Goss (R-Fl.), chairman of the House Permanent Select Committee on Intelligence; and Bill Esposito, former deputy director of the FBI.

Jeffrey Smith
Former general counsel of the CIA


· read smith's full interview

In the mid-1970s, there were two congressional investigations that grew out of Watergate, essentially the Church committee in the Senate and the Pike committee in the House. Those two committees recommended an elaborate series of laws and regulations to oversee the conduct of U.S. intelligence activities. President Ford signed an executive order that regulated U.S. intelligence activities. Then two permanent committees, one in the House and one in the Senate, were created to oversee the U.S. intelligence community. The result of all of that is that an elaborate, extensive and complex web of laws, executive orders and regulations, governs the conduct of U.S. intelligence activities. No comparable law governs the regulation of U.S. military activity. The only thing that comes anywhere close is the War Powers Resolution, also passed in that same era, which is widely ignored. ...

So you have the irony of a stack of regulations that must be this high, governing secret intelligence activities, with lots of people in Congress informed about it. And the comparable regulations governing the movement of U.S. forces and the conduct of U.S. military operations is tiny.

The sad fact of the matter is it keeps a lot of lawyers busy. The good news is that, over time, we have figured out ways to conduct necessary intelligence activities and comply with the law, but still largely do what needs to be done. But it clearly "gums up the works" as we try to put together intelligence activity. It risks disclosures, because every time additional people know about activities, there is a greater risk of leaks. But we have largely found a way to make it work.

Recently, there've been comments that the reason we didn't know about September 11 is because of these bureaucratic requirements--the ban on assassinations which came out of the Church committee hearings, and this bureaucracy that's been created, if you will--that make people in the field risk averse. True?

I don't know the answer to that. I think it is a fair and good question to ask. As former President Bush has said, we ought to look at all of those rules and regulations to determine if we have it right. I'm not certain, in my own mind, that these rules and regulations really inhibited our ability either to penetrate the terrorist organizations, or to find out what was coming. It's an enormously difficult intelligence task; made, no doubt, somewhat more difficult by these rules. But I'm not persuaded that they necessarily led to the failure....

In your experience--because you start with the Cold War--[as] we come to the present, to modern-day terrorism in the post-Soviet era, has it been really a breakdown not so much of intelligence, but of cultural understanding of what we're dealing with?

Well, in many respects it was much easier to deal with the Soviet Union. We successfully managed a balance of nuclear terror with the Soviets for 50 years, nearly, and we didn't blow one another up. And that's a huge achievement, candidly.

Dealing with these groups is much, much more difficult. They are, as often said, para-statal; they're not a government; they're not a state; but they have many of the attributes of a state. They're big, they're well financed, they're secretive, they operate outside of ordinary established legal channels. They enjoy support across a number of governments. Very, very difficult to deal with.

We don't have formal relations with them like we did with the Soviet Union. We don't have a series of back channels with them like we did with the Soviet Union, and they don't behave in a responsible fashion like, at the end of the day, the Soviets did, with respect to managing their nuclear weapons. It's a fundamentally different situation and we're going to have to look at the way we conduct our business, at the way we confront it, and at the way we fight it. ...

NEED FOR HUMAN INTELLIGENCE
Congressman Porter Goss (R-FL)
Chairman of the House Permanent Select Committee on Intelligence


· read goss's full interview

The FBI has told us that they have had a problem over the last decade because there are almost no Arab-speaking FBI agents, and they've had to build up their capacity.

That's accurate. ... Despite oversight committee recommendations of all the appropriate committees and the appropriators and everybody else, we have not been able to get the administration to listen to, in the past decade, the need to invest in those capabilities; to diversify law enforcement agency and intelligence agencies; and train sufficiently to get the job done that needs to be done. ...

I recall back in the Aspin-Brown report as it came out, one of the main findings we made after investigating the roles and capabilities of our intelligence community back in the early 1990s was that we did not have the right mix of skills. ... There's not enough money to train people to speak the languages. There are not enough officers out there to recruit agents who speak the languages. There are not enough agents out there who speak the languages who are sympathetic to the United States of America and what it stands for. ...

What would the benefit be from having agents who actually steeped in the language, in the culture and are... What could they do for us in the future?

... They have the contacts. They know the culture. They know the places to go. They know the nerve centers. They can go to the right coffee shop at the right time and hear the right minister's aide talking to the other minister's aide and get the right information. You could study that target forever and not know that, unless you knew the local scene.

Those people are invaluable. We have fewer and fewer of them. And the tragedy is we have not brought along the next generation of them. We're going to have a generational gap of these people. We've lost them in droves in retirements. We've lost some, tragically, in casualties. ...

There are not enough people to examine all the information. We are inundated with tidbits of information. Finding in these ever-growing haystacks the nuggets, the needles that we need, has become increasingly difficult, because the haystacks have taken on a culture of their own now. ...

We've got wonderful sensors. ... That's glamorous, in-place sensors. That's fun stuff. But when it talks about going through reams and reams and reams and reams of take, and say, "Does any of this stuff mean anything?" especially if it's in a foreign language or in code or in some other thing, that's very hard to deal with. That's hard work, and it takes a very dedicated person with a great deal of concentration to do that job well, and a huge amount of knowledge. And those people are hugely valuable, and they are probably under-rewarded in the system.

And hard to come by.

Very hard to come by.

ASSASSINATION PROHIBITION
jeffrey smith
Former general counsel of the CIA

We've been told that in 1998 DEA agents in Pakistan had developed their own network of informants into Afghanistan. Of course, the Nairobi bombing had taken place. And they had discovered that Osama bin Laden has a kidney problem, is on dialysis, that his doctor was in Peshawar, and that they had the ability, possibly, to poison his dialysis treatment, but that their proposal to do so was rejected when it was sent through the embassy to CIA, because of the ban on assassinations.

This is the first time I've heard that story. I have no idea whether it's true or not. But if your question is should we rescind the ban on assassinations, my view is, no. In my view, Americans are not assassins. And we have been able to conduct necessary military and intelligence activities, including covert intelligence activities involving the use of lethal force to combat and disrupt terrorist activities outside the United States, and, in some instances, the activities of drug dealers outside the United States, without engaging in assassinations.

But...when you were in the CIA, as general counsel, we were, in a sense, at peace. Now, for all intents and purposes, we're at war. Shouldn't we be taking the gloves off?

Even in war, there are rules. We don't shoot prisoners. There's a whole body of law that governs the conduct of armed hostilities, and the reason is because how you fight a war does matter, because there will come an end to the war. We'll have to move on with life, and you don't necessarily throw out all of the rules just because you are at war. The ban on assassinations, which is a presidential executive order, initially signed by President Ford, but, in essence, was repeated and endorsed by all presidents to date... There is something about crossing that line that Americans have been unwilling to do. It raises moral questions: Is this the sort of country we are, that we target a foreign leader for murder? And it also raises questions of, is it effective? Does it truly deter or disrupt terrorist activities?

Congressman Porter Goss (R-FL)
Chairman of the House Permanent Select Committee on Intelligence

I don't think you need to back it. I think that the use of lethal force as a last resort in situations where you're trying to bring well-known criminals to justice is a concept most Americans are fairly comfortable with. It doesn't exactly go back to the "Wanted, Dead or Alive" poster. But the idea is, if you've got a criminal, and you've gone through the proper identification process, as you're trying to bring that person to justice, the person resists and tries to take a shot at our law enforcement people or our operatives in the field, I think that the possibility of lethal force is well understood. ...

Let me just make sure I understand. You don't believe we need to change the presidential directive on assassinations?

I don't think it's necessary, because I think it is very important that we expand the number of arrows we have in the quiver of what I will call covert action, and I don't mean covert action, capital C, capital A. I just mean action that is not visible, where our hand doesn't show, or where you don't necessarily know where it's coming from, but it changes the course of events.

It might be psychological warfare. It might be something going on in some circles, that change of financial outcome somewhere to the disadvantage of a terrorist. Things like that need to be expanded. We do not have a big enough bag of tricks to work with. But the assassination piece, the lethality question... We are a civilized nation. I don't think we are setting out where the idea is the way to deal with this is to go assassinate somebody. I think what we would start out with is we are going to catch that person and bring them to justice. And I think that is the way to look at this.

So no poison cigars for Castro? That's still out. No hit man like the Israelis might send to take out some leader of a Palestinian group?

I think in our system of government, there is a possibility of doing those kinds of things under extreme last resort circumstances with the appropriate oversight.

So that would change the presidential directive.

I don't think it would change the presidential directive, if you read it closely. My view is the president has the right to do that, but not an unfettered right to do that.

RECRUITMENT RESTRICTIONS
jeffrey smith
Former general counsel of the CIA

In 1995, when I became general counsel of the CIA, there were a series of investigations about CIA activity, largely in Central and South America. There were a series of allegations in public that were being investigated by the Congress and by the...CIA inspector general--that CIA officers overseas had recruited and were paying people as sources of information who were serious human rights abusers, and, in one case, were paying an individual who was responsible for the death of an American citizen. That allegation later turned out not to be true, by the way.

But, nevertheless, the agency was under huge pressure from the Congress and from the press about, how could you deal with these horrible people? And so it occurred to us that the CIA had no guidelines for dealing with sources of intelligence information who had serious criminal or human rights problems. The DEA and the FBI have had such guidelines forever. So I suggested, and Director of Central Intelligence Deutsche agreed, and the operations directorate agreed, that it would be a good idea to have guidelines patterned after those used by the FBI in their dealings, for example, with a source inside the Mafia.

So we put those guidelines in place. Essentially, they require that if the CIA wishes to recruit a source of human intelligence information, that is to say, a human being, outside the United States with a bad record, that is to say, someone who's committed murders, someone who's a drug dealer, someone who's a terrorist--these are terrible people. On the other hand, they're the only ones that are going get us inside these terrorist organizations.

[The guidelines require] that when we're going to recruit somebody like that, the CIA headquarters ought to know about that, and they ought to be given the opportunity to balance the value of the intelligence that we're going to gain by having a relationship with this person against the risks to the United States that accrue from dealing with him or her.

You mean they would just recruit people in the past and not inform headquarters to what they were like or who they were?

There was information that went to headquarters about a recruitment; but in our judgment, it was inadequate. So we simply added to the amount of information that had to be provided to headquarters before a recruiting attempt was made, and at the time everybody thought that was a good idea.

Congressman Porter Goss (R-FL)
Chairman of the House Permanent Select Committee on Intelligence

What about dealing with people who kill American citizens and commit mass murder or human rights violations in their own country; can we recruit them as agents?

The guidelines for agent recruitment are an area of great debate, and the consequence of the dampening effect on [risk-taking] of some of our people, has been unmistakable. I mean we have lost something since 1995.

What is it? What did we lose?

What I am suggesting is that the concern about the political backlash of having a flap in a foreign country, especially involving a human rights violator, is so great that it isn't worth [it to] our operatives out there. It isn't just a question of them being denied the opportunity to go do that. It's just the smart people out there say, "This isn't worth going at the target this way. I'll try and go at it another way." That's what's happened.

Has there been any intelligence failure because of that?

I would say yes. But ... how do you know what you don't know? ...

But have any of these restrictions impeded their ability to gather information?

In their view, yes. And that's the point. But if you go to the headquarters personnel here and talk to the top brass, they say, "No, because we give waivers. If they come in with a legitimate case, we'll give them a waiver." And I think they've said, "We've never turned them down." So there's a miscommunication going on here. ...

The whole issue is, at what level do you get approval to do that? That's essentially been the discussion. Can you get this approval in the field any more? No, you have to come home. You have to come to headquarters. Does headquarters want to... be put in a position where they have to make these tough judgment calls? Not really. Therefore, if you're smart in the field, you don't send a hard decision back to headquarters. ...

Jeffrey Smith
Former general counsel of the CIA

We heard from Congressman Goss and from former Senator Rudman that their experience in the field is that agents in the field today feel risk-averse, if you will, because of these regulations, and this added bureaucratic paperwork that they have to go through.

I understand that concern. And if that is the case, it needs to be fixed. I think the guidelines ought to be reevaluated. CIA management ought to look at them, and if they are having this effect, then they need to be modified, accordingly. Let me hasten to add, however, that George Tenet, the Director of Central Intelligence, the other senior leadership of the CIA, do not agree with that assessment. In their view, and in my experience, the guidelines never led to the CIA at Washington being unwilling to approve the recruitment of a human source with serious human rights or criminal problems when that individual could provide valuable intelligence. ... It needs to be made very clear to officers in the field that we expect them to take risks, and we're going to back them up when they take those risks. If that's not happening--and I must say I'm disappointed to learn that some officers in the field believe that--but if it is happening, that needs to be fixed. ...

OK. So the question is, is it true, as some people are alleging, that the Central Intelligence Agency or international covert operators can't go near "bad guys" that we need in order to accomplish something?

That is not true. We have, in the past, in instances in which I am personally aware, dealt with individuals who have engaged in terrible acts, some of which were designed to kill Americans. We have dealt with those individuals. We have paid them for the acquisition of intelligence information from them. The information we have obtained from those individuals has proved extraordinarily valuable to the United States in disrupting activities, in bringing people to justice, when necessary. It is not accurate to say that we have been unable to do it. ...

But you must also understand that when we deal with these people, when we pay them money, when we meet with them, when we become part of their lives, which is what happened, the United States is inevitably drawn in to the activities of that individual, and what they're doing, and what that group is doing. And one has to do that with your eyes open, and not become in any way a part of that activity. That's a challenge--to get the intelligence but not be tainted in some fashion by dealing with some people that are embodiments of evil. ...

LACK OF COORDINATION
jeffrey smith
Former general counsel of the CIA

We've learned that the CIA doesn't like to tell the FBI things, sometimes for rivalry reasons, or personality conflicts, sometimes because they don't want to give up, quote, "their sources." The INS doesn't have an efficient system, many times, to tell the FBI or the CIA that the person they're looking for is already in the country.... There's a culture of distrust, of bureaucratic procedures that are different, laws that are in conflict with each other. It's almost like we have Keystone Kops running around, who may [in the end, when we study this,] have been able to put together September 11. But because of the culture or customs, the laws of America, it didn't happen.

I strongly suspect that when we look back at what happened, we will find that there are nuggets of information scattered around various U.S. agencies, perhaps information in the hands of foreign intelligence services, that had we been able to pull it together, would have given us warning. That is a very serious issue that needs to be examined. You are correct. A variety of U.S. agencies, intelligence agencies and law enforcement agencies, do not share information....

They're not even on the same computers....They can't even talk to each other.

That is a very serious problem. I mentioned earlier how long it has taken the military to learn to act jointly. The U.S. intelligence and law enforcement community needs to go through that same exercise. They need to look at the laws that constrain their activity or that govern their activity. We need to find a way that still protects the rights of defendants in criminal trials but permits that information to be shared with the intelligence community. The intelligence community needs to be prepared to share its information with the law enforcement community. ...

It's going to be very hard to do, because these procedures have grown up over years; they have good reasons, in some instances, reasons that are based in the law. But that ought to be changed. We now are facing a much more difficult challenge in finding terrorists, in building international coalitions, in rooting them out, and we can't approach this through the rules and regulations of the past. ...

Bill Esposito
Former deputy director of the FBI during the Clinton administration


· read esposito's full interview

The FBI and the CIA had problems over the years. This inter-bureaucratic rivalry and inability to communicate--does that account for some of this?

I think there's no doubt that, over the years, going back to when the CIA was first started, that there was a rivalry and not the greatest communication between the two agencies. Back in the mid-1990s, under Louis Freeh's regime and George Tenet's regime started by John Deutch, they did a lot to get that gap closer together. ... A better relationship exists, including exchange of personnel, more exchange of information, working together. And that was a great step in putting information together that has prevented several incidents from occurring, or putting a better intelligence package together for the people who make decisions.

But it wasn't good enough; or it's not good enough yet.

Well, no, everything could always be improved. And one of the ways it could be improved is they both need additional resources. They need to be sitting, a lot of times, closer together. They exchange personnel, but I'm saying that there needs to be a better harmony. There are other agencies that are out there also, that are involved in intelligence gathering. Sometimes they haven't been the greatest in getting that information to either one of those two agencies.

Lew Schiliro
Assistant director of the FBI from 1998 to 2000


· read schiliro's full interview

I think that, under certainly Louis Freeh and George Tenet, the cooperation between the CIA and the FBI has vastly improved. And I think certainly when you get information that would indicate a terrorist act from the standpoint of the loss of life, that there is no doubt in my mind that the agencies would do everything in their power to prevent that.

The argument, though, becomes between how we divulge techniques. In other words, the divulgence of sources and techniques of investigation oftentimes become a center of issue between the agencies. But when information is developed that indicates that there will be a terrorist act, a violent act -- and I've seen this in numerous occasions -- agencies work very well to prevent it.

No one is questioning that the agencies would work in the right direction. But Nairobi is a good example; there was information that something was going on. There was a preventative raid, if you will, to disrupt the cell. The bombing still took place. They did what they set out to do.

They did exactly what they set out to do. But I also would submit -- and again, I am not attempting to defend whether or not the flow of information is where it needs to be, and that the cooperation is exactly all that it needs to be -- but the issue becomes how we manage that information and interpret that information. There's been a jihad against this country for a number of years, in which the extremists in some of the Al Qaeda groups have avowed a violent reaction to the United States, and have demonstrated that on numerous occasions. That threat continues to exist. It existed prior to September 11. The only thing that was lacking, in terms of information, was really the specific target of that jihad. ...

CRIMINAL VS. INTELLIGENCE INVESTIGATIONS
jeffrey smith
Former general counsel of the CIA

... Prior to 1978, the law was that the president, on his own, could authorize the interception of electronic communications in the United States for national security purposes without a warrant.

That is to say, the president could order the wiretap of an American citizen if he thought that this person was operating on behalf of a foreign power, was a spy. We could also target foreign installations in the United States, that is to say, embassies, and so on, without a warrant. But in the mid-1970s, the courts began to raise questions about the constitutionality of that. So in 1978, the Congress passed a statute called the Foreign Intelligence Surveillance Act--often called FISA for short--that required that a warrant be obtained from a special court that sits to hear applications from the government to conduct these wiretaps within the United States.

This is like a secret court inside the Justice Department building?

That isn't the way I would characterize it. These are sitting federal judges who ordinarily hear cases, routine cases, in federal court. They are designated by the chief justice of the United States to sit on this special court and hear these applications for wiretap warrants. ... And when necessary, they go to the Department of Justice, to a secure room, where they are presented with the facts that the Justice Department, the FBI, the CIA, NSA, has marshaled, to meet the standard: is there reasonable cause to believe that this person is an agent of a foreign power? And if the U.S. government can prove that to the judge, the judge signs an order, which authorizes the wiretap.

And not just a foreign power, but also a possible terrorist?

That's right. It does cover terrorists; yes.

Now we understand that there have been occasions, some recent occasions actually, where there's a conflict between the use of these intelligence eavesdropping warrants, and what may in fact be a criminal case. So the result has been that this bureaucratic, or, if you will, legal conflict has resulted in people deciding, "Well, I guess we just won't "bug" these people, or won't do this wiretap." ... Do you remember anything like that happening during your tenure?

These are questions that arise from time to time, yes.

Which questions?

The question of, is this particular investigation that the United States is conducting a law enforcement investigation that's going to lead to a trial? Or is it an intelligence investigation designed to produce intelligence which might lead to some other action, a military action, a diplomatic response, or an arrest overseas, or intelligence activities to disrupt it?

And the law now is such that, when you start down one course, it's very hard, if not impossible, to shift to the other course, because the Title 3 wiretaps are developed and in place for criminal prosecutions--the Mafia, drug investigations, and so on--and that's designed with a very specific set of rules governing the manner in which wiretaps will be conducted, ultimately, to be introduced in court, designed to protect the rights of the defendant. With an intelligence wiretap, it's very different. The fundamental purpose is to collect as much information as you can--largely about non-Americans, but occasionally about Americans--and there's never the intention that it will be used in prosecutions. The same issue sometimes arises in counterintelligence investigations--trying to find spies in the United States. Are you doing this for the purpose of finding out what they're up to and perhaps expelling them, because you can't try them if they have diplomatic protection? Or are you trying to find out who the American spy is so that you can prosecute them? A very elaborate set of rules and regulations have grown up under each of those two statutes. I think they need to be reconciled....

I don't know exactly what the right answer is. But it seems to me that we need to find a way to have these wiretaps conducted in such a way that the maximum amount of information is obtained for intelligence purposes--and keep in mind that it's called the "Foreign Intelligence Surveillance Act"--but at the same time, if necessary, have that information available for use in trial. We're going to have to look at the rules of evidence. We're going to have to look at the legal standards under which these are conducted in the first place, so that adequate protection is still afforded to American citizens under the Fourth Amendment. That cannot change.

But in terms of the manner in which the information is collected, disseminated, and handled, that needs to change. There are also instances in which the FBI and the Department of Justice will do a Title 3 wiretap--that's a criminal wiretap--for counterterrorist purposes, because they intend to prosecute somebody, or they're pursuing a counterintelligence investigation, and they refuse to share that information with the CIA. I think that has to change.

Or they're in a grand jury and they're legally...prohibited.

The same--yes; precisely right. The same issue arises under the grand jury rules, which prohibit the Department of Justice from giving grand jury information to the intelligence community. There are, as we speak, a series of proposals in Congress to change these rules, both for FISA wiretaps and for grand jury information, and my hope is that those rules will be changed.

So when we interviewed the recently retired head of the FBI in New York, Lew Schiliro, who led many of the terrorism investigations of the bin Laden organization, and he says to us, "Oh, that's not a real problem. We, the FBI, figure that out with people, usually to everyone's satisfaction." You don't agree?

I do not agree with that. The FBI and the Justice Department understand that the intelligence community needs to have access to that information. But they've been reluctant, and indeed feel prohibited under the existing law from giving the intelligence community access to that. They will say, "Tell us what you're interested in and we'll see if there's a way we can tell you whether there's anything we know that you might want to know. But it's entirely up to us." And that's not a satisfactory way to do intelligence.

Bill Esposito
Former deputy director of the FBI during the Clinton administration

In cases when, let's say, you're listening to an intelligence case and it becomes a criminal case, you start hearing criminal evidence. Is there a problem in the FBI or in the Justice Department dealing with that crossover between the two?

Yes, there is. As I said, in the criminal world, everything goes through the district court, and you're geared towards making your case in court--gathering the evidence and presenting it in court to get a prosecution. In a national security case, we're basically concerned with the national security of the country. There's not really an intent at the beginning of that case to take that case to court. [The intent is] trying to protect the national security of the nation, to find out, is somebody trying to overthrow the government? Is somebody trying to do whatever it takes to ruin the national security of the country? ...

On a national security case...one reason why they don't like to bring these cases to court is you have to divulge sources and methods. And a lot of times, the government does not like to divulge what sources and methods the government has used to obtain the information that is now being presented.

WHAT SHOULD BE DONE?
Congressman Porter Goss (R-FL)
Chairman of the House Permanent Select Committee on Intelligence

A CIA officer told the New York Times, "You never stop all the attacks, because you never hear about all of them. You just can't spy on all of these groups. You have to destroy them, and that's not what the CIA has been set up to do."

That's true.

Do we need a James Bond agency that goes out and basically whacks people?

No, we don't. We don't need that. ... We have been trying to redefine our defense capabilities to respond to the kinds of threats we have today, and we're trying to do the same exact thing with intelligence, change the capabilities we have. Do we need more arrows in the quiver of small "c," covert action? The answer is yes. There is no doubt about that. Is it a James Bond assassination squad? Certainly not. It's a great movie, but movies, unfortunately, are not reality.

Back in the day when James Bond was popular, that was sort of the image of intelligence. Those were, in many ways, the heydays. ... Now we're in the position where we have had to overcome this sort of bad period where intelligence is not only unfashionable, it's un-American, and we don't want to do that any more. We've had to resist that, rebuild the financing for it, rebuild the recruiting, rebuild the morale. It has been a very hard problem, and we are caught a little short, and that's one of the reasons.

So when you say, "Was this a cultural problem that we had?" The answer is partly yes, because we decided that the world didn't need quite as much intelligence, and we weren't sure what it exactly it should be. So we backed off from some stuff. I can't say we would have prevented the tragedies of last Tuesday if we'd had more intelligence. I'd just say the odds were higher that we could have.

Jeffrey Smith
Former general counsel of the CIA

So when I hear from people in the Central Intelligence Agency that I know, and some people who have gone public on this, that it's the Church committee, it's regulations like this, it's the prohibition on assassinations, that's why we can't do our job, that's why we didn't know about September 11...

I don't necessarily agree with that. ...We don't know the reason why we don't know that this was going to occur. We need to look at what went wrong. Why didn't we know about this terrible attack? And we need to try to identify those problems and fix them. Former President Bush has said we need to look at these rules and regulations, and if they have unnecessarily restricted our ability to collect and disseminate intelligence, then they need to be changed. I agree with that.

It is premature to conclude, simply because there are a lot of rules passed by Congress, by the way, signed by a number of presidents of both parties going all the way back to President Ford... I think it is wrong to conclude in a simplistic fashion that these rules and regulations, which have been designed to constrain the activities of an intelligence agency in a democracy... I think it's a mistake to immediately conclude that those rules need to be thrown out just because of this one terrible intelligence failure.

... So what should we do?

Two things, in my judgment. First of all, with respect to some of these specific rules and regulations, Congress right now is proposing to enact legislation to move the line; that is to say, to make it easier.... For example, in terms of using wiretaps to collect information, Congress is proposing to move the line, to make it easier to collect information under one wiretap, under Title 3 criminal wiretap, and make it available to the intelligence community for foreign intelligence purposes. I think that's appropriate. Congress has directed George Tenet, the Director of Central Intelligence, to look at and rescind these regulations that require headquarters approval to recruit someone with serious human rights problems.

All of those things are appropriate to do in my view. We need to look at these rules and regulations and make appropriate adjustments. My point is we shouldn't throw everything out; these were put in place for good and valid reasons at the time. They have worked to protect the rights of American citizens, because we are still worried about an overreaching national security and law enforcement apparatus. And we're still worried about protecting American rights under the Fourth Amendment. We can move too quickly; we can move the line too far in the wrong direction, and find that we are abusing the rights of Americans in order to enforce a law overseas. ...

Do I hear you correctly, as a 30-year veteran of the intelligence community--either in it, or outside of it, or advising it--that despite the horror of September 11, we still have to have rules? We still have to make sure that we don't turn into what we're trying to destroy?

Yes. We cannot abuse the rule of law in seeking to enforce the rule of international law or our own domestic law. There will come a time when we will win this war, and how we fought it and how we won it matters. We are a nation held together by a belief in the Constitution, held together by the rule of law. We are not bound together by ethnic nor religious reasons. We believe in the Constitution. That is what makes this country great. It's terribly important that we not lose sight of that in the course of fighting this war. We may need to adjust the lines, we may need to make some changes in the way we govern U.S. intelligence activities, and law enforcement activities, and the way we conduct them. We need to be brutally tough. We need to be, when necessary, vicious. We need to use force and violence to achieve this objective. But that can still be done consistent with the rules of law in this country and the rule of law in armed conflict.


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