You Call That a Reform Bill?
The new national intelligence director will be a toothless figurehead.
The intelligence-reform bill, which the House and Senate seem finally on the verge of passing, doesn't really reform much. Certainly it falls far short of the measures urged by the 9/11 commission, which set the legislative process in motion. The basic reason for this shortfall is simple: The Bush White House doesn't want reform.
The commission's main proposal was to create a new national intelligence director, who would coordinate and control the vast, disparate, and sometimes quarrelsome array of federal departments, agencies, and sub-agencies that comprise the U.S. "intelligence community."
Initially, the Senate passed a bill that closely reflected the commission's suggestions, which a handful of Republicans in the House firmly rejected. House Speaker Dennis Hastert refused even to bring a similar bill to the floor for a vote.
The compromise bill that's about to pass—and that President Bush, at last, has endorsed—establishes a national intelligence director but one with scant authority.
The key passage in the bill making this so notes that this director will not "abrogate the statutory responsibilities" of the Department of Defense. A story in today's New York Times quotes a supporter of the bill who describes this language as "minor." In fact, it is anything but.
The Defense Department's "statutory responsibilities" for intelligence matters—which the bill says the new NID may not abrogate—are laid out in Title 10 of the U.S. Code (Chapter 21) and in DoD Directive 5100.20. They cover the personnel, operations, and budgets of not just the Defense Intelligence Agency (and its Army, Navy, Air Force, and Marine sub-branches), but also the National Reconnaissance Office (which controls all spy satellites), the National Imagery and Mapping Agency * (which selects the routes for those satellites), and, most critically, the National Security Agency (the largest U.S. intelligence apparatus, which handles electronic and communications intercepts).
All told, these activities comprise about 80 percent of the U.S. intelligence community's budgets. In short, this "reform" bill places about 80 percent of the entity that's supposedly being reformed outside the control of the official—the new national intelligence director—who is supposedly the reform's centerpiece.
10 U.S. Code 21 allows few loopholes in the Pentagon's grip over these agencies. Section 421 authorizes the secretary of defense to use appropriated funds and "funds other than appropriated" to pay for "arrangements with foreign countries" involving cryptographic operations "without regard for the provisions of law relating to the expenditure of United States Government funds" (as long as such deals are reported to the congressional intelligence committees). Section 422 permits similar arrangements for counterintelligence operations. Section 423 says the secretary of defense "shall establish policies and procedures to govern acquisition, use, management, and disposition of proceeds from counter-intelligence operations." Section 424 states that the secretary has no obligation to reveal anything about the personnel, budgets, or other facts about these activities, except as the president or specially cleared congressional committee wants to know.
The explicit duties of the new national intelligence director, as laid out in the bill, have not yet been reported. Whatever they are, they will be strictly limited by the provision forbidding the abrogation of the defense secretary's statutory responsibilities.
This explains why Secretary of Defense Donald Rumsfeld so strongly opposed the reforms recommended by the 9/11 commission and adopted by the Senate. They would have stripped him of those responsibilities—i.e., of his power over so vast and shrouded a chunk of the national security machinery. It is no coincidence that the lawmakers who put up the stiffest opposition to the Senate bill were members of the House Armed Services Committee. The Senate bill would have greatly reduced the piece of the federal pie that they routinely oversee.
Fred Kaplan is Slate's "War Stories" columnist and author of the book, The Insurgents: David Petraeus and the Plot to Change the American Way of War. He can be reached at email@example.com. Follow him on Twitter.