Momentum is growing for efforts to dramatically reorganize the U.S. intelligence community in the few weeks before Congress adjourns for the elections. But while there has been much arcane debate on budgetary authorities, one important aspect of the reform proposals has gone largely unnoticed: the serious threat they pose to civil liberties.
While the Sept. 11 commission rejected a proposal to establish a domestic intelligence agency along the lines of Britain's MI5 agency, many of the current proposals would create a back-door domestic spy agency. The proposed intelligence agency restructuring would, in columnist William Safire's words, marry the law officer and the spy by placing the FBI's domestic counterterrorism activities and counterterrorism operations by the CIA and Defense Department under the authority of one spymaster. Foreign and domestic intelligence activities are now in different agencies reporting to separate masters because intelligence methods used overseas -- disinformation campaigns, secret kidnappings, etc. -- are fundamentally different from those allowed in the United States. Here, the FBI can engage in secret surveillance, but it must arrest and charge individuals in ways consistent with due process. FBI domestic operations are also subject to public scrutiny, because they are ultimately answerable to the courts in a way that is not true of such CIA activities as secret interrogations in unknown prisons overseas.
Under the proposals being considered, there would be no protection against the reappearance of covert operations targeting Americans by the CIA and the Pentagon. There are no legal prohibitions against the CIA or defense intelligence agencies conducting covert campaigns against Americans. Although the National Security Act excludes the CIA from law enforcement and internal security, it has never been read to prohibit domestic covert operations done for a "foreign intelligence purpose." Indeed, President Ronald Reagan granted such authority to the CIA in a 1982 executive order that remains in place. The only protection against such operations has been bureaucratic arrangements and the CIA's understanding that its primary mission lies overseas. Those bureaucratic protections would disappear with the establishment of a new intelligence director with the power to turn to the CIA or Defense Department and order domestic covert operations in the name of counterterrorism.
These proposals also threaten to transform the FBI's counterterrorism operations by putting an intelligence czar, rather than the attorney general, in charge. Despite civil libertarians' many criticisms of the FBI, it operates with much greater accountability than the CIA, because the line of command goes to the Justice Department, which has an institutional responsibility for the protection of constitutional rights.
The pending bills call for the creation of a national information-sharing network. (This is not part of the intelligence agency restructuring.) Congress would require building the technological capability for an FBI or CIA officer sitting at his desk to access all information about any American in any existing database. This would make it possible, for instance, to generate complete dossiers on all political protesters in Seattle or all Arab Americans in Michigan. Instead of building one massive central database, this proposal envisions a system whereby thousands of government officials would have instantaneous access to multiple databases. No laws currently restrict such dossier-building or limit the government from using such information against anyone for any purpose. Only the lack of capacity stops the government from putting this into practice today.
The proposals do contain references to privacy and civil liberties protections, but they abdicate Congress's constitutional responsibility to enact such protections. Instead, they direct the White House to write privacy guidelines for the new information network. Neither administration guidelines nor the proposed civil liberties board is an adequate substitute for public debate and congressional legislation on the complex issues posed by such a massive new information-gathering program.
What is to be done? As CIA Director Porter Goss has recognized, we urgently need a national debate on the domestic spy powers of any new intelligence director before such powers are given to him. If there is to be a new national intelligence director, domestic covert operations should be outlawed. While a new intelligence director should ensure that foreign and domestic information is shared and that agencies operating at home and abroad coordinate their efforts, the FBI should remain under the direction and control of the attorney general.
Before Congress gives its blessing to the largest-ever surveillance information network, it should conduct a serious examination of the need for such government capability. It should then look closely at the implications for individual privacy and liberty in concentrating such power in the government. Only then, if it determines that such a capability is needed, should it authorize its construction and write the laws necessary to protect individual rights.
In the end, there will be an added security benefit from respecting civil liberties because limited government resources will be focused on actual terrorists and not on American Muslims or political dissidents.
The writer is director of the Center for National Security Studies, a civil liberties organization.