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Back to Archives | Back to February 2005 Contents 

Legislative Alert

Legislative Alert: President Bush Signs Sweeping Intelligence Reform Bill

Jennifer Boyter, IACP Legislative Analyst

n December 17, President Bush signed into law a bill (S. 2845) that makes sweeping reforms to the nation's intelligence community. The bill, which implements many of the recommendations of the September 11 commission, is the second major government reorganization in the last two years, after the 2002 creation of the Department of Homeland Security.

Passage of the bill came after the House and Senate finally reached an agreement on final language in the bill after weeks of deliberations. Lawmakers in both houses had come under great pressure to pass the bill before the end of the congressional session by members of the September 11 commission and families of victims of the terrorist attacks.

Most notably, the bill creates a counterterrorism center and a director of national intelligence to coordinate the activities of the CIA and the other 14 intelligence agencies throughout the government, as recommended by the September 11 commission. The director, who will report directly to the president, will be the president's primary advisor on foreign intelligence matters and have the power to develop and determine the intelligence budget.

The chief sticking point in negotiations between the House and Senate had been how much budgetary power to give the director. Previously, the Pentagon controlled about 80 percent of the estimated $40 billion annual intelligence budget. The bill will transfer some of that authority to the new national intelligence director, who would write the budgets for those intelligence agencies that do not provide combat support. The national intelligence director also would be able to shift limited amounts of funds from one program or agency to another, and to reassign some personnel from one agency to another.

The bill also establishes an intelligence directorate at the FBI and requires that some agents be trained and dedicated to domestic intelligence activities.

Information Sharing: The bill requires President Bush to submit to Congress within a year a broad outline for how intelligence should be shared across the federal government and with state and local law enforcement agencies. The federal government will design communication systems and clearance authority that will give local officials access to threat information.

The bill also allows federal prosecutors to share secret information obtained in grand jury proceedings with state, local, or foreign law enforcement officers if it might prevent a future terrorist attack.

In addition, the bill attempts to clear the backlog in government security clearances by directing the president to designate a single agency to handle all security clearances and set uniform standards for processing clearance applications. It also calls for the creation of a multiagency database to handle all clearances, and requires quicker processing of security clearances so that most applications can be cleared within 60 days.

Terrorist Financing: The bill strengthens the Financial Crimes Enforcement Network (FinCEN), which tracks the movement of money worldwide. It seeks to improve information sharing with state and local law enforcement by providing Web-based access to suspicious activity reports and other financial data collected by the Treasury Department. It also requires banks and other financial institutions to report cross-border wire transfers of funds.

The bill also broadens and clarifies language in current law prohibiting people from providing material support or resources for carrying out terrorist acts. Two federal courts in California have ruled the statute unconstitutionally vague. Provisions in the bill provide more detailed definitions of what constitutes illegal "expert advice and assistance" and broadens the law to prohibit "any tangible or intangible property or any service" to terrorist groups.

Law Enforcement: The bill also includes several law enforcement-related measures to augment the Patriot Act, which enhanced the government's surveillance and prosecutorial powers against suspected terrorists, their associates, and those who fund them. Specifically, the bill does the following:

  • Makes it a crime to visit a terror camp that provides military-style training

  • Makes terrorism hoaxes a federal crime

  • Increases penalties against people who possess weapons of mass destruction

  • Establishes a legal presumption to deny bail to anyone indicted by a grand jury on terrorism charges; although the suspect could appeal to a judge, the burden of proof would be on the defendant to show release would be prudent

Foreign Intelligence Surveillance Act (FISA): The bill contains a provision making it easier to conduct surveillance on suspected terrorists by relaxing a requirement for authorizing warrants under the Foreign Intelligence Surveillance Act (FISA), which was passed in 1978. Under the bill, the government could conduct surveillance on a suspect if it could show probable cause that the suspect intends to commit a terrorist act, even if officials lack evidence connecting the individual to a specific terrorist group or a foreign power that supports terrorism, as is now required. Supporters of the provision say that it is designed to allow law enforcement to pursue so-called lone wolf terrorists who might sympathize with terrorist groups but are not active agents of one.

Homeland Security Grant Programs: The bill includes nonbinding "sense of the Congress" language that homeland security grants should be distributed to cities and states based on the threat of terrorism, rather than by population size. Since it is nonbinding, the language makes no statutory changes to the formulas that distribute first responder grants. Both the House and Senate versions of the bill contained language that specifically altered the formula for first responder grants so the money would be distributed based on the threat of terrorism.

Radio Spectrum: The bill contains a nonbinding resolution that calls on Congress to make additional spectrum for public safety a priority next year. This is much weaker language than what was contained in the Senate version of the bill, which would have freed up valuable portions of the broadcast spectrum for emergency responders by requiring local broadcasters that are now using channels reserved for public safety to turn in those frequencies by January 1, 2008, if police, fire, or other first responder agencies in their region want to use the spectrum. The IACP strongly supported the Senate provision.

National Identification Standards: The bill also sets standards for state-issued identification cards, driver's licenses, and birth certificates, standardizing the documentation required to get such documents and the data they must contain. The standards must be developed by the Department of Transportation and the Department of Homeland Security within 18 months.

The bill does not give the federal government the authority to force states to meet the federal standards, but it would create enormous pressure on them to do so. Two years after the standards are released, the federal government will no longer accept state-issued identification that does not meet the federal standards. The bill also prevents states from putting a person's social security number on a driver's license or identification card.

The bill did not include a House provision that would have required the states to keep all driver's license information in a linked database, for quick access. In addition, it did not ban the issuance of driver's licenses to illegal immigrants, which had been in the House bill.

Border Security: The bill authorizes the Homeland Security Department to hire 2,000 more border agents and 800 more customs and immigration agents each year for the next five years.

Aviation Security: The bill authorizes programs to tighten aviation security, including carry-on baggage screening for explosives, blast-resistant cargo containers, and increased screening for airport workers.

The bill also authorizes $83 million for the Homeland Security Department to hire additional air marshals. It also offers air marshal training to other U.S. law enforcement officers. In addition, it directs the department to take steps to ensure the anonymity of marshals.

More Work Left to Do
Lawmakers in both the House and Senate said that their work on strengthening the country's intelligence system was not complete and indicated that they would begin work on an immigration measure early next year that would include many of the provisions that were dropped from the intelligence bill, including one that would prevent illegal immigrants from obtaining driver's licenses.

In addition, several members of the September 11 commission will continue to push Congress to overhaul its oversight of the intelligence community. The commission criticized congressional oversight of homeland security as "dysfunctional" and called for changes in the committee structure to oversee the intelligence community. Commission members said that changes in the legislative branch were just as important as those in the executive branch.

Specifically, the commission recommended that Congress have a single committee in both the House and Senate with responsibility over the Homeland Security Department, and that the Intelligence Committee should be strengthened and given direct control over the intelligence budget.

However, the intelligence law made no changes to congressional oversight. The Senate and House have each passed separate reorganization plans, but the changes are far less than what was recommended by the commission.

The Senate reorganization plan (S. Res. 445) that passed in October gives formal oversight of homeland security to the Governmental Affairs Committee and also establishes an appropriations subcommittee dedicated to the intelligence budget. However, the bill was heavily amended on the floor by senior lawmakers on the Judiciary, Budget, and Finance panels. The bill faced resistance from lawmakers who did not want to lose jurisdiction, and neither of the commission's two recommendations was completely adopted.

Under the original plan, drafted by party whips Mitch McConnell (R-Kentucky) and Harry Reid (D-Nevada), the Governmental Affairs Committee would have had increased jurisdiction and influence. Although it will now be known as the Homeland Security and Governmental Affairs Committee, it will oversee only a portion of the Homeland Security Department and has lost its share of the budget process.

Some of the largest agencies with the Homeland Security Department will remain under the oversight of other committees. For example, the Transportation Security Administration, the largest agency in the department, and the Coast Guard would remain under the Commerce, Science, and Transportation Committee. The Secret Service will remain under the jurisdiction of the Judiciary Committee.

The biggest change for the Intelligence Committee is the elimination of the eight-year term limit on panel service, a move aimed at building and preserving expertise on the committee. However, the Appropriations Committee blocked the commission's recommendation that it give the Intelligence panel responsibility for the intelligence budget.

On January 4, the House approved its organizing resolution (H. Res. 5), which will give parts of the Transportation, Judiciary, Intelligence, and Science committees' jurisdiction to what will become a permanent Homeland Security Committee. Since its creation in 2002, the Homeland Security Committee had been a temporary select committee. In passing the reorganization plan, Republican leaders overcame the resistance of powerful committee chairmen, who did not want to lose jurisdiction over key homeland security issues.

The plan gives the committee primary jurisdiction over homeland security in general, including domestic preparedness and the collective response to terrorism, as well as authority over government-wide homeland security matters. Integration, analysis, and dissemination of homeland security information, which in the last session was under the Intelligence Committee, also would move to the Homeland Security Committee, along with research and development, which has been under the Science Committee.

Under the plan, the committee, which will be chaired by Christopher Cox (R-California), will have jurisdiction over the Transportation Security Administration and port security, which had previously been under the jurisdiction of the Transportation and Infrastructure Committee. It also would give the Homeland Security Committee jurisdiction over customs and border security, both of which were previously handled by the Judiciary Committee.

The resolution gives 10 committees besides the Homeland Security Committee jurisdiction over some part of the Department of Homeland Security. The Judiciary Committee will retain jurisdiction over immigration policy and non-border enforcement. The Transportation Committee will keep jurisdiction over the Coast Guard and the Federal Emergency Management Agency. Cybersecurity will move from the Judiciary Committee to the Energy and Commerce Committee.

However, although the new committee was given significant jurisdiction, the new House rules include provisions that could allow the chairs of other committees to request referrals on homeland security-related bills. Consequently, House Speaker Dennis Hastert (R-Illinois) will determine which committees get referrals on homeland security legislation.

Critics of the plan said the reorganizations would continue to result in ambiguity over homeland security oversight, a danger the September 11 commission warned against. The commission supported a strong Homeland Security Committee with wide jurisdictional authority. ■



From The Police Chief, vol. 72, no. 2, February 2005. Copyright held by the International Association of Chiefs of Police, 515 North Washington Street, Alexandria, VA 22314 USA.

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