Congressional leaders and the White House have yet to reach agreement on two major elements of intelligence reform legislation -- the powers of the new national intelligence director, and the specific roles of the new national counterterrorism center.
Although both congressional chambers have now passed bills, a conference committee has not yet met to begin working out differences. The House has just released the final version of its 645-page measure. The Senate is still integrating the many last-minute amendments accepted in the final days of debate and so has yet to publish its bill, several Senate staff members said.
Meanwhile, CIA Director Porter J. Goss, as a result of executive orders signed by the president in August, already has much of the power and authority in his role as director of central intelligence (DCI) that the new legislation would give to the proposed national intelligence director, or NID.
"The president's order, thanks to slight changes in language, gave the DCI more budget authority [over intelligence agencies] and control over the national counterterrorism center," a senior congressional intelligence specialist said last week. "And he still controls the CIA," the specialist added.
Specific control over the CIA is one of the differences between the bills. Under the House measure, the CIA director "shall be under the authority, direction, and control" of the national intelligence director, but under the Senate bill, the CIA director only "shall report" to the NID.
"That means he can report daily, weekly or monthly to the national intelligence director," the congressional specialist said, adding that the result would be "the NID would have less power over CIA than the DCI does today."
The House, Senate and White House disagree over what authority the new national intelligence director would have over the intelligence community budget.
The question of budget authority has been a sticky one since the Sept. 11 commission recommended that the U.S. intelligence community be reorganized with a new national intelligence director and a national counterterrorism center. The overall idea was to address a lack of coordination and other shortcomings that the commission said helped prevent the CIA and other agencies from detecting the planned attacks on the World Trade Center and the Pentagon.
Both bills would give the NID a role in deciding how to apportion money among more than a dozen agencies, including the CIA and offices at the Pentagon, that carry out the nation's foreign intelligence program. The defense secretary would retain the primary role in budgeting military intelligence activities. The two bills would also give the new director varying degrees of authority in "reprogramming," or shifting funds between intelligence agencies to meet new needs after Congress approves the budget.
Regarding the annual foreign and military intelligence budgets, the House bill would provide the national intelligence director with authority to "develop" both budgets by giving "guidance" to each of the agencies in the community.
The Senate, though, stipulates that the NID "shall determine" the annual budget for the U.S. foreign intelligence portion. With regard to these nonmilitary intelligence programs, the NID would have the right to review, modify and approve the budgets for each element. With regard to the military, the NID would "participate in development" of the figures.
Goss has inherited a team that had been working on the fiscal year 2006 intelligence budget to be presented to Congress next January, already armed with budgetary language from Bush's August executive order.
That order for the first time gave the DCI explicit authority to "determine" the budget for the National Foreign Intelligence Program -- the name for all foreign intelligence not related to tactical military operations. These programs are said to account for about 75 percent of the intelligence budget, which is secret but is believed to be about $40 billion.
In that way, the president's August order gives Goss authority similar to the power the Senate bill would give to the new NID. That means Goss "will have the last word on those figures and not have to compromise if he doesn't want to with the Pentagon," according to an administration official involved in the budget process.
While Congress debates the powers of the national counterterrorism center (NCTC), Bush's executive order authorized its establishment and has led to work that has been underway for the past two months.
Under Bush's order -- and the two bills in Congress -- the NCTC becomes the primary agency for analyzing intelligence from both foreign and domestic sources, and for planning strategic counterterrorism operations. The NCTC, which is being built upon the existing Terrorist Threat Integration Center, "may raise its flag in mid-November," a senior counterterrorism official said yesterday. Under Bush's order, it is supposed to report on its progress by Dec. 24, the official said.
Goss, under the Bush order, is to name an NCTC director with the approval of the president but will retain "authority, direction and control" over the center and its director. Under the Senate bill, however, the NCTC director would be appointed by the president and confirmed by the Senate. Under the House bill, the head of the counterterrorism center would be appointed by the new national intelligence director.
For now, the NCTC director will report to the DCI, Goss. But the Senate bill would have the NCTC director report directly to the president as well as to the NID. The NCTC director would also be "principal adviser" to the president on "joint operations relating to counterterrorism."
There are many more differences in the bills to be worked out by conferees from the House and the Senate, who are preparing for a possible meeting this week.
Because the bills are so large and complicated, it is considered doubtful that the normal materials prepared for conferees would be ready in time for such a meeting. According to one Senate aide, the Congressional Research Service cannot provide a "side-by-side" comparison of the two bills for at least three weeks.
Last week, Alberto Gonzales, chief White House counsel, told relatives of the victims of the Sept. 11 attacks that the administration is not sure a bill can be finished by year's end, a source said.
Backroom negotiations have begun on Capitol Hill with White House lawyers and intelligence specialists working with members to find solutions. "The president wants a bill," White House spokesman Sean McCormack said.