October 28, 2004 | WebMemo on Department of Homeland Security

Putting Off 9/11 Reform Law is the Right Answer

Three cheers for the Congress. House and Senate conferees have resisted compromising on a bill to address the reforms proposed by the 9/11 Commission. It is now unlikely that a measure will be signed into law before the national elections next week. The conferees did the right thing. The pressure of rushing a bill through conference presented too great a risk of ending up with a bad law. Congress needs to take its time. It is more important to get the reforms right than to get them fast.

 

The Senate and the House authored significantly different bills (S. 2845 and H.R. 10) with varying proposals for centralizing intelligence authorities, providing new anti-terrorism tools, instituting immigration reform, and managing funding for emergency responders. The right bill would enhance homeland security, protect civil liberties, and create efficient and effective federal instruments for winning the long war against terrorism. The Heritage Foundation's research suggests that neither bill accomplishes those goals. (See, e.g., "The Senate and House 9/11 Reform Bills Both Miss the Mark," Executive Memorandum No. 946, and "Intelligence Reform Needs To Enhance Our Legal Capacity To Combat Terrorism," WebMemo No. 591.) Both bills are deeply flawed.

 

Some, including members of the 9/11 Commission, have used the approaching elections to pressure Congress to act. "It would be a tragedy for the country if they were not able, at this point, to reach an agreement when they are actually so close," said 9/11 Commission chairman Thomas Kean. Other commissioners have even warned that if another attack occurs before a bill is passed responsibility for the failure to protect Americans will fall on the administration and the Congress.

 

But pressuring the Congress to act, to get a bill-any bill-to the president before election day is to play Russian Roulette with the legislative process for no good reason. The 9/11 Commission's initiatives are vital to the security of the nation, but it will take years to implement them and gain the requisite benefits. Even if the reforms were signed into law before November 2, they would have little impact on preventing terrorist attacks in the near future. Moreover, the proposed reforms are complex. Getting them wrong could create as many problems as they solve, and once they are in place it will be difficult to pursue further reform.

 

Indeed, had the bill sailed through to passage, the resulting law would have come under intense criticism by voices on the right and the left. Much as the Patriot Act was assailed by critics for having been too briefly considered by the Congress, legislators would be excoriated for rushing through intelligence reform without adequate deliberation and debate. This time, the critics would be right.

 

Neither the politically charged atmosphere of impending election nor the crush of a post-election lame-duck session is the right legislative setting to craft the most important intelligence reform bill since the National Security Act of 1947. A more reasonable approach would be to make this effort the first priority for the next full session of Congress, beginning with a set hearings led by restructured and empowered intelligence and homeland security committees-with jurisdiction over all the key issues covered by the 9/11 reforms-in both the House and the Senate.

 

These hearings should evaluate how well the 9/11 bills address four key issues:

 

  1. Do the reforms preserve civil liberties?
  2. Do the reforms address modern threats?
  3. Do the reforms assure the independence of the National Intelligence Director?
  4. Do the reforms help integrate intelligence operations at all levels? (See "Avoiding a Rush to Failure.")

Congress can and must pass legislation implementing the reforms proposed by the 9/11 Commission, but this is a task best left the 109th Congress.

 

James Jay Carafano, Ph.D., is Senior Research Fellow in Defense and Homeland Security in the Kathryn and Shelby Cullom Davis Institute for International Studies at The Heritage Foundation.

About the Author

James Jay Carafano, Ph.D. Vice President for the Kathryn and Shelby Cullom Davis Institute for National Security and Foreign Policy, and the E. W. Richardson Fellow