Recommendations on the intelligence reform and terrorism prevention act of 2004 and/or to executive order 12333

Subject: Law
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Over the years, intelligence reorganization and reforms, particularly as they relate to domestic intelligence, have been implemented with the primary objective of making the nation more secure. This paper analysis the Intelligence Reform and Terrorism Prevention Act of 2004 and the Executive Order 12333 to identify appropriate revisions. It also provides the rationale for the recommended changes.

The twenty first century presents a range of dynamic and complex threats to national security, such as terrorism, states failure, and use of weapons of mass destruction. This calls for an integration of all the instruments of US national power for a common purpose. This is because while individual departments achieve their core missions, effectively and efficiently meeting the multidimensional threats of the twenty first century remain a challenge. The 9/11 terrorist attack was a strategic event that revealed the inabilities of the US intelligence community in dealing with a threat of such magnitude as a result of ineffective information-sharing mechanisms. The need for radical improvements in the national intelligence apparatus formed the basis for the implementation of different statutory instruments and executive orders, such as the Intelligence Reform and Terrorism Prevention Act (herein the Act) and the Executive Order 12333 (herein the E. O 12333). The enactment of the former was largely a public affair resulting from the impact of the 9/11 terrorist attacks as an advocacy for the attack’s victims in addition to the emphasis on national security in the 2004 presidential election, and the failure in finding weapons of mass destruction in Iraq. The Act gives the Director of National Security (DNI) control over resources.

The E. O 12333, on the other hand, establishes a framework for intelligence programs targeting the activities, capabilities, plans, and intentions of foreign powers, organizations, persons, and their agents. Its goal is to provide the President and the relevant government agencies with information pertaining to the conduct of the aforementioned foreign bodies upon which to base policies and conducts in order to protect the national interests against foreign security threats. The E. O provides the authority for most of the NSA’s surveillance activities. For example, the CIA is authorized to collect intelligence from a variety of sources, such as open source intelligence (publicly available information), Geospatial Intelligence, and Signals Intelligence, among others, which is later incorporated to produce all-source analysis of possible national security threats. Issued by President Reagan, the E. O 12333 establishes rules for the exercise of intelligence activities outside the scope of the Foreign Intelligence Surveillance Act (FISA) 1978 and establishes a balance between collection of intelligence and privacy protection. Although it has never been put to a congressional vote, the E. O, as well as all other executive orders have the force and effect of law through the congressional delegation of power to the President or the President’s independent authority derived from Article II of the United States Constitution.

Both the Act and the E. O 12333 have been subject to amendments and while those regarding the former have largely been unsuccessful, the latter has been severally amended. Nevertheless, some changes can still be effected, which will have a great impact in improving their efficiency and effectiveness. For the identified changes, both the president and Congress would be approached to request for revisions.

From the very start and with fresh memories of the 9/11 national tragedy, the office of the Director of National Intelligence (ODNI) faced fierce criticisms from traditional quarters of intelligence. This was primarily based on the untrue belief that the ODNI was just but a bloated bureaucracy inhibiting policy makers from their important tasks of data collection. Both the E. O 12333 and the Act are substantially elaborate on the extent of authority and responsibilities of the DNI, it has not provisions regarding the tenure of employment for the holder of this office. Consequently, the job has often been regarded as a scapegoat, providing a deck chair for rearrangement every two years for the continued inability to detect terrorists.

Since its inception in 2005, the ODNI is on its fifth occupant, the previous holders having held office for different periods and a majority of them having resigned from their jobs. Dennis Blair, the third DNI, served the shortest tenure of just seventeen months before resigning. The immediate former DNI is James Clapper. From his appointment in 2010 by President Obama up to his resignation on the inauguration day of President Trump, Clapper’s is undoubtedly the most turbulent and controversial of tenures to date, which was defined by attempts to combat the whistleblower Edward Snowden on issues of surveillance on Americans. The resignation accounts have led to widespread suggestions that the position is fundamentally flawed. This speaks of internal disorganization and the negative view with which the public holds the ODNI.

Another revision relates to the mode of reporting and providing more information to Congressional. National Security is a sensitive sector of the nation’s welfare on which the Congress also legislates upon and which the legislators have comparatively less information. Senate and House Intelligence Committees receive briefings relating to the surveillance provisions of the US PATRIOT Act. However, presidents have over the years offered limited information to the Congressional leadership relating to similar provisions of the E. O 12333. The Congress on its part, despite its pique over not being fully consulted on updates regarding the E. O 12333, it has taken little actions in response to its provisions.

In addition, the authorities of the ODNI need to be strengthened in order to eliminate the ambiguities and confusion existing regarding who runs what. The Act states that the DNI is the head of the intelligence community (IC) who acts as the principal advisor to the President in matters of national intelligence. However, the DNI has never enjoyed the full extent of these authorities largely due to the capabilities of the NSA, the Defence Intelligence Agency (DIA), the National Geospatial Intelligence Agency, and the National Reconnaissance Office (NRO. These agencies remain under the primary authority and control of the Secretary of Defence who further delegates it to the Secretary of Defence for Intelligence. In addition, the CIA has also in multiple occasions distanced itself from the IC and purported to be an independent body. In the face of the suppressing twenty first century threats to national security, it is prudent to eliminate all sorts of confusion regarding who is accountable for what in order to create an open and free channel of communication.

Reorganization and reforms in issues of national security are prudent in light of dynamic security threats of the twenty first centuries. The Executive Order 12333 and the Intelligence Reform and Terrorism Prevention Act of 2004 establish the rather powerful position of the Director of National Intelligence who is in control of the agencies mandated with intelligence collection. Changes and reforms in this office and beyond should be aimed at making the nation more secure by addressing any existing domestic intelligence gap while also ensuring that there are oversight mechanisms to avoid abuse of the surveillance power. This is because intelligence collection is a sensitive issue requiring consideration of other significant factors, such as respect for individual privacy.

Effectiveness should be created on the authorities of the DNI. The director should be empowered with responsibilities and accountability, for example, regarding budgetary functions and allocation of resources across the IC, being the accountable party to the president for timely, trustworthy, and relevant intelligence for decision-making, and having the power to make direct functional and organizational changes in the IC. With clear cut authorities, collaboration among the different agencies will be enhanced thereby improving their effectiveness.

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  10. Severson, D., 2015. American Surveillance of Non-U. S Persons: Why New Privacy Protections Offer only Cosmetic Change. Harvard International Law Journal, Vol. 56, No. 2.
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  12. The CIA’s Updated Executive Order 12333 Attorney General Guidelines. Available at < https://www.cia.gov/about-cia/privacy-and-civil-liberties/Detailed-Overview-CIA-AG-Guidelines.pdf> accessed October 2, 2017.
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