September 22, 2004
By Paul Rosenzweig
most pressing issue currently before Congress is reform of the
national intelligence system. Proposals abound, most calling for
the creation of a National Intelligence Director (NID) and for the
restructuring of America's national intelligence services. As
Congress considers these proposed changes, it should bear in mind
the most important lesson of September 11--that the purpose of any
reorganization is to assist in "connecting the dots" of
intelligence information. To assure that this occurs, Congress must
take steps to make the critical information-sharing authority
contained in the USA Patriot Act permanent. If Congress does not
act, vital aspects of that new legal authority will lapse in
the aftermath of September 11, Congress passed the Patriot Act
(P.L. 107-56), many provisions of which have generated substantial,
though unwarranted, controversy. But one aspect of the Patriot Act
has won near uniform approval: Prior to September 11, U.S. law
enforcement and intelligence agencies were limited by law in what
information they could share with each other. A legal wall
separated them. The Patriot Act tore down that wall. Section 203 of
the Act permits information gathered during the course of law
enforcement investigations to be shared with the intelligence
community, and section 218 creates the reciprocal opportunity for
intelligence information to be conveyed to law enforcement
authorities, where appropriate.
These information-sharing authorities have
been put to good use since September 11. Information sharing
facilitated by the Patriot Act, for example, was critical to the
successful dismantling of terrorist cells in Portland, Oregon,
Lackawanna, N.Y., and Virginia. Likewise, the information-sharing
provisions contained in the Act assisted the prosecution in San
Diego of persons involved with an al-Qaeda drugs-for-weapons plot
that included Stinger anti-aircraft missiles. The new law also
aided in the prosecution of Enaam Arnaout, an individual who had a
long-standing relationship with Osama bin Laden and who used his
charity organization both to obtain funds illicitly from
unsuspecting Americans for terrorist organizations, such as
al-Qaeda, and to serve as a channel for people to contribute money
knowingly to such groups.
remarkably, some of these vital provisions allowing the exchange of
information between law enforcement and intelligence agencies are
set to expire at the end of next year. If Congress does nothing,
then portions of section 203 and all of section 218 will lapse and
the laws will return to where they were on the day before September
11--to a time when the government could not, by law, connect all
the dots. Nobody wants a return to those days, but that is where we
are headed if Congress does not set aside its partisan debates.
Consider what this would mean for the
proposed, revised intelligence structure. If portions of the
Patriot Act are allowed to lapse, then the new NID may sometimes
develop information from a foreign intelligence investigation that
he will not be permitted to share with the Director of the Federal
Bureau of Investigation. Similarly, some information gathered by
the FBI during a law enforcement investigation will not be
transmitted to the NID.
entire purpose of creating an NID--indeed, the singular purpose of
most of the substantive recommendations of the National Commission
on Terrorist Attacks Upon the United States (the 9/11
Commission)--is to enhance information sharing and analysis. It
would be foolish, to say the least, if new legislation creating an
NID and reorganizing the intelligence community to enhance
information sharing did not also eliminate permanently the legal
barriers to that sharing. All the structural reorganization in the
world will come to naught if the law does not provide the requisite
authority to act.
Thus, as a vital matter of policy, in
reforming the American intelligence community Congress should also
make permanent the information-sharing authorities in the Patriot
Act. Members of Congress should go on record now, before the next
election, with their views on this vital issue. The American people
deserve no less on an issue of such grave potential
importantly, lawmakers must understand the damage that will be done
if this issue is not resolved soon. Intelligence operations are
very expensive and complicated and take a long time to complete.
They require certainty in their planning and execution. If planners
are uncertain now about what is in store from Congress, some
intelligence efforts to be undertaken next year may be compromised
or deterred if the information gathered might not be useable. As
President Bush warned in his 2004 State of the Union Address,
though vital information sharing provisions are set to expire next
year, "[t]he terrorist threat will not expire on that
Indeed, whether the legislation that
ultimately becomes law contains a provision making information
sharing permanent is, in a very real sense, a test of whether or
not Congress is treating the question of reform seriously. Without
information-sharing authority, intelligence reform will be little
more than moving bureaucratic boxes around. True reform will make
the provisions of sections 203 and 218 that allow information
sharing between law enforcement and intelligence agencies
Rosenzweig is Senior Legal Research Fellow in the Center for
Legal and Judicial Studies at The Heritage Foundation and Adjunct
Professor of Law at George Mason University.
Information sharing by law enforcement and intelligence agencieshas enabled important arrests and prosecutions in the war onterrorism. Congress should move to make this vital authoritypermanent before the relevant sections of the Patriot Act expirenext year.
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