The National Counterterrorism Center: Implementation Challenges and Issues for Congress

^Pr^ep^ar^{ed f}^o^r^M^e^m^b^ers^an^d^Com^mⁱ^t^t^ees^of^C^ong^r^e^ss

In July 2004, the National Commission On Terrorist Attacks Upon the United States
recommended the establishment of a National Counterterrorism Center (NCTC) to serve as a
center for “... joint operational planning and joint intelligence, staffed by personnel from the
various agencies....” On August 27, 2004, President George W. Bush signed Executive Order
(EO) 13354, National Counterterrorism Center, which established the National Counterterrorism
Center and stipulated roles for the NCTC and its leadership and reporting relationships between
NCTC leadership and NCTC member agencies, as well as with the White House. In December

2004, Congress passed the Intelligence Reform and Terrorism Prevention Act of 2004, P.L. 108-

458. Like the preceding executive order, among many other reform initiatives, the act prescribes
roles and responsibilities for the NCTC and its leadership.
The purpose of this report is to outline the commonalities and potential differences between EO
13354 and P.L. 108-458, as these conceptual differences could be meaningful in the
implementation process of P.L. 108-458 and/or should the issue of intelligence reform be re-^th
visited by the 109 Congress. The report examines some aspects of the law related to the NCTC,
including the relationship between the NCTC’s Director and the Director of National Intelligence
(DNI), which may have implications related to policy and implementation of an effective and
efficient nationally coordinated counterterrorism function. Moreover, the report examines several
issues that may be of interest to Congress as the NCTC matures and evolves, including potential
civil liberties implications of collocating operational elements of the traditional foreign
intelligence and domestic intelligence entities of the U.S. Intelligence Community. While the
appointment and confirmation of a DNI may resolve some of the uncertainty regarding the
NCTC, the NCTC is only one of a myriad of complex issues that will be competing for the time
and attention of the recently nominated DNI.
An issue for Congress is whether to let the existing intelligence reform law speak for itself (and
let certain ambiguities be resolved during implementation), or to intervene to address apparent
ambiguities through amendments to the law now. Alternatively, the executive branch may choose
to intervene to clarify apparent ambiguities within P.L. 108-458, or between EO 13354 and P.L.
108-458. In any event, congressional oversight of the status quo and implementation of the
present law could prove useful.
This product will be updated as necessary.

Introduc tion ............................................................................................................................... 1
Executive Orders and Statutes...................................................................................................2
Genesis of the NCTC................................................................................................................3
Commonalities Between EO 13354 Approach and P.L. 108-458.............................................4
Potential Inconsistencies Between EO 13354 Approach and P.L. 108-458..............................5
NCTC Director Appointment..............................................................................................5
NCTC Director Reporting Relationships............................................................................5
Issues for Congress...................................................................................................................7
Options for Congressional Consideration.........................................................................10
Conclusion ............................................................................................................................... 11
Figure 1. Dir., NCTC Reporting Relationships EO 13354..............................................................6
Figure 2. Dir., NCTC Reporting Relationships P.L. 108-458..........................................................7
Appendix. Functional Comparison E.O. 13354 and P.L. 108-458................................................13
Author Contact Information............................................................................................................1

Currently there are two legal mechanisms governing the establishment of the National ¹
Counterterrorism Center (NCTC). The NCTC was initially established by Executive Order
13354, signed by President George W. Bush on August 27, 2004. Section 3 of EO 13354 outlined
the functions of the NCTC which included, among others, (1) serving as the primary organization
within the U.S. government for analyzing and integrating all intelligence possessed by the U.S.
government pertaining to terrorism and counterterrorism, (2) conducting strategic operational
planning for counterterrorism activities, (3) assigning operational responsibilities to lead agencies
for counterterrorism activities, and (4) serving as a shared knowledge bank on known and
suspected terrorists and international terror groups. Less than two months later, the Intelligence
Reform and Terrorism Prevention Act of 2004 (hereinafter the act) became P.L. 108-458. Section
1021 of the act amends the National Security Act of 1947, as amended (50 U.S.C. 402 et. seq.) to
establish within the Office of the Director of National Intelligence, a National Counterterrorism
Center. The primary NCTC missions outlined in the act are largely consistent with those
stipulated in EO 13354. However, there are some differences between these two legal
mechanisms that may be worthy of congressional consideration. Moreover, within Section 1021
of the act itself there are some provisions that may prove problematic if efficient and effective
implementation of a nationally coordinated counterterrorism function is to take place in a timely
manner.

¹^For^aⁿ^aⁿ^a^l^y^s^is^of^the^de^ba^te^aⁿ^d^r^a^tiona^le^f^o^r^t^h^e^e^s^ta^blis^hm^eⁿ^{t of}^the^N^C^T^C^{, s}^e^e^C^R^S^R^e^por^{t R}^L³²⁵⁵^8,^The^9/1¹
^C^o^m^mⁱ^s^sⁱ^on^an^d^{a N}^a^tⁱ^o^{nal C}^o^uⁿ^t^e^r^te^r^r^o^rⁱ^s^m^C^e^nte^r^:^I^s^s^u^e^s^{and O}^p^tio^ns^f^o^r^C^o^ngr^e^s^s^.

The President’s constitutional authority to issue executive orders (EO) related to national security
is derived from Article II, Section 2, Clause 1 of the U.S. Constitution, which identifies, among
other powers, that the President serves as the “... Commander in Chief of the Army and Navy of ³
the United States....” In general, the President can also issue executive orders based on
congressionally delegated statutory authority. The preamble to EO 13354 titled, National
Counterterrorism Center, states that the President’s authority to issue the executive order flows
from the “... authority invested in (the) President as by the Constitution and laws on the United
States of America, including section 103(c)(8) of the National Security Act of 1947 (as ⁴
amended)....” At the time the executive order was issued this section of the National Security Act
stipulated that the Director of Central Intelligence (DCI), acting as head of the IC shall “... ⁵
perform such other functions as the President or the National Security Council may direct.”
One of the issues for the 109^th Congress with respect to the implementation of the functions
outlined for the NCTC, or the role and responsibilities of its Director, is the extent to which the
executive order and Intelligence Reform and Terrorism Prevention Act of 2004 (hereinafter Act)
are consistent, or at least not contradictory. In general, executive orders are interpreted as having ⁶
the force of law, unless they contravene existing law. Given that the NCTC, its roles and
responsibilities, and those of its Director, have been established in both an executive order and in
statute, it is reasonable for one to conclude that any differences or inconsistencies would be

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⁷²^{S. C}^t^.⁸^63,⁹⁶^L^.^Ed.¹¹⁵³⁽¹⁹⁵²⁾^.
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^g^o^v^e^rn^m^e^{nt in t}^h^e^P^r^e^s^ideⁿ^tⁱⁿ^A^r^tic^le^{II, Se}^c^tio^{n 1}^,^c^l^a^u^se¹^,^aⁿ^d^f^r^om^A^r^tic^le^{II, Se}^c^tion^{3 w}^h^ic^{h sta}^t^e^s^tha^t^the
^P^r^e^s^ideⁿ^{t s}^h^a^l^l^ta^k^e^c^a^r^e^tha^t^the^l^a^w^s^“^{... be}^f^a^ithf^u^lly^e^x^e^c^u^te^d....”
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^“^p^e^r^f^o^r^m^s^u^c^h^othe^r^f^unc^ti^ons^a^s^t^h^e^P^r^e^s^ideⁿ^t^m^a^y^dir^e^c^t^.”^Se^c^{tion 101}²^of^P.L^.¹⁰^8-⁴^{58 e}^s^ta^b^lis^he^d^the^N^C^T^C^{in the}
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^Institutⁱ^oⁿ^P^r^e^{ss, 20}^00).

resolved in favor of the statutory language. While this is true generally, given that the intelligence ^th⁷
reform legislation passed in the 108 Congress is open to interpretation in some areas, the basis
for this interpretation could be either the legislative history of P.L. 108-458 or EO 13354. As a ^th
result, legislative oversight and potential amendments to the act in the 109 Congress are
possible. As a means of understanding the varying conceptual underpinnings for the NCTC, its
Director, and how its Director relates to the established Director of National Intelligence, it may
be useful to outline the areas of commonality and difference between these two legal authorities.
In the aftermath of the terrorist attacks of September 11, 2001, two authoritative reports
concluded that the lack of adequate and timely coordination and communication within the
Intelligence Community (IC) was one factor contributing to the inability of the IC to detect and
prevent the terrorist attacks. The Joint Inquiry Into Intelligence Community Activities Before and
After the Terrorist Attacks of September 11, 2001 (hereinafter Joint Inquiry) concluded, in part,
that
^W^ithⁱⁿ^th^{e I}ⁿ^telli^g^eⁿ^{ce Co}^m^m^uⁿ^it^y^,^a^g^en^cie^s^dⁱ^dⁿ^o^t^ad^eq^u^a^tel^y^s^h^ar^{e r}^e^le^v^aⁿ^t
^couⁿ^t^ert^e^rrori^smⁱⁿ^f^o^r^m^a^tⁱ^oⁿ^,^pri^o^{r t}^o^S^e^pt^em^{ber 11. T}^hⁱ^s^break^do^wⁿⁱⁿ^co^m^m^uni^catⁱ^oⁿ^s
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^au^th^o^r^itie^{s an}^d^c^u^lt^u^r^{es. I}ⁿ^f^o^r^m^at^ioⁿ^w^a^sⁿ^o^{t s}^u^f^fⁱ^cⁱ^en^t^l^y^s^h^ar^ed^{, n}^o^{t o}ⁿ^l^y^b^e^t^w^eeⁿ
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^la^w^eⁿ^f^o^rce^m^{ent ag}^eⁿ^cies^.
While the Joint Inquiry did not recommend the creation of a National Counterterrorism Center
per se, it did recommend the following measures, which are largely consistent, in a conceptual
sense, with the creation of the NCTC: (1) the development, within the Department of Homeland
Security (DHS), of an “all-source terrorism information fusion center,” and (2) congressional
consideration of legislation, modeled on the Goldwater-Nichols Act of 1986 (P.L. 99-433), to “...
instill the concept of “jointness” throughout the intelligence community.” With respect to the all-
source terrorism information fusion center, the Homeland Security Act of 2002 (P.L. 107-296)
created within DHS an Information Analysis and Infrastructure Protection (IAIP) Directorate
which has, among other functions, legal responsibility for the fusion of federal, state and local
intelligence information to “identify and assess the nature and scope of terrorist threats to the ⁹
homeland.” Subsequently, in his State of the Union Address on January 28, 2003, President
George W. Bush announced the creation of a new organization, the Terrorist Threat Integration
Center (TTIC) designed to “... merge and analyze all threat information in a single location.”
While the IAIP continues to exist within DHS, TTIC and its fusion functions have been absorbed ¹⁰
into the newly-created NCTC Directorate of Intelligence.

⁷^Se^e^W^a^lte^{r P}ⁱ^nc^{us, “}^N^a^tiona^l^Int^e^llig^eⁿ^c^e^Dire^c^t^{or P}^r^ov^e^s^{to Be}^Dⁱ^ff^ic^{ult Post t}^o^Fi^ll,”^Wa^shing^t^on^Po^st^{, J}^a^n.³¹^,
²⁰⁰^{5, p.}^A⁴^.
⁸^Se^e^{U.S. C}^ong^re^{ss, Se}^na^te^Se^le^c^t^Com^m^itte^e^{on Inte}^llig^eⁿ^c^e^,^aⁿ^{d t}^h^e^{U.S. H}^ouse^P^e^rm^aⁿ^eⁿ^{t Se}^le^c^t^Com^m^itte^e^on
^Inte^llig^eⁿ^c^e^,^J^oⁱⁿ^{t In}^quiry^Iⁿ^to^Int^e^lligeⁿ^c^e^Commu^nity^Ac^tiv^itie^{s B}^e^fo^re^an^{d Afte}^{r t}^h^e^Te^{rrorist At}^ta^c^k^s^{of Se}^pte^m^be^r^th^nd
^{11, 20}⁰¹^{, 1}⁰⁷^Co^ng^.,²^s^e^s^s^{., S.R}^e^pt.¹⁰^7-³^51,^H^.^R^e^pt.¹⁰^7-⁷⁹^2,^{p. x}^v^{ii, D}^e^c^.²⁰⁰²^.
⁹^Se^e^T^itle^{6 U.S.C.}^§¹²¹^.
¹⁰^Se^e^Se^c^tion¹¹^{9 (I)}^of^the^N^a^tioⁿ^a^{l Se}^c^u^rity^A^c^{t of}^1947,⁵⁰^U^.^S.C^.^§4⁰²^{(I), a}^s^a^m^e^nde^{d by}^P^.^L^.¹⁰^8-4⁵⁸^§1⁰²^1.

Like the Joint Inquiry, the National Commission on Terrorist Attacks Upon the United States ¹¹
(hereinafter The Commission) also found, among other factors, that the lack of information ¹²
sharing and coordination within the IC led to numerous missed operational opportunities to
detect and prevent the attacks. However, it also expounded on the virtues of “jointness” with
respect to operational planning, unification of effort, and analysis. Seeking “unity of effort across
the foreign-domestic divide” and deliberate avoidance of the proliferation of intelligence “fusion”
centers, one of the Commission’s central recommendations was the creation of an NCTC which
would have responsibilities for both joint counterterrorism operational planning, and joint ¹³
intelligence analysis. The central tenets of this recommendation were incorporated into both EO

13354 and P.L. 108-458, albeit in somewhat different forms.

There is a high degree of consistency between section three of EO 13354 “Functions of the ¹⁵
Center,” and the “Primary Missions” provisions of P.L. 108-458. Under each of these legal
mechanisms, the NCTC is to (1) be the primary organization for analysis and integration for “...
all intelligence possessed or acquired by the United States Government pertaining to terrorism ¹⁶
and counterterrorism ...”; (2) conduct strategic operational planning for counterterrorism
activities, “integrating all instruments of national power, including diplomatic, financial, military,
intelligence, homeland security, and law enforcement activities ...” within and among agencies;
(3) assign operational responsibilities to lead departments or agencies, as appropriate, with the
limitation that the Center “... shall not direct the execution” of operations; (4) serve as a “shared
knowledge bank on known and suspected terrorists and international terror groups, as well as
their goals, strategies, capabilities, and networks of contact and support;” and (5) ensure that
agencies “... have access to and receive” all-source intelligence “needed to execute their
counterterrorism plans, or perform independent, alternative analysis.”

¹¹^T^h^e^C^o^m^m^issⁱ^{on o}^u^tli^ne^{d w}^h^a^t^it^c^ons^ide^r^e^d^f^our^br^oa^{d a}^r^e^a^s^of^f^a^ilur^e^—ⁱ^nc^l^udi^ng⁽¹⁾^im^a^g^ina^tion,⁽²⁾^p^o^lic^y^,⁽³⁾
^c^a^p^a^b^ilitie^{s, a}ⁿ^{d (4)}^m^a^na^ge^m^e^{nt. Se}^e^The^Fi^nal^Re^p^o^r^t^of^the^N^a^ti^ona^{l C}^o^m^mⁱ^s^sⁱ^oⁿ^on^Te^r^r^o^rⁱ^s^t^Att^a^c^k^s^U^pon^the
^Uⁿ^ite^{d State}^s^{, c}^h^a^p^te^{r 1}¹^,^pp^{. 3}³⁹^-³⁶^0.
¹²^S^ee^The^Fi^nal^Re^p^o^r^t^of^the^N^a^ti^ona^{l C}^o^m^mⁱ^s^sⁱ^oⁿ^on^Te^r^r^o^rⁱ^s^t^Att^a^c^k^s^U^pon^the^Uⁿ^ite^d^Sta^t^e^s^{, J}^u^ly^22,²⁰⁰⁴^,^pp.
³⁵⁵^-³^56.
¹³^A^s^re^c^o^m^m^e^nde^{d by}^the^Com^m^is^sion,^the^j^oⁱⁿ^{t in}^te^llig^eⁿ^c^e^e^l^e^m^eⁿ^{t of}^the^NCT^C^w^{ould be}^“^b^uilt^oⁿ^the^f^oun^da^tioⁿ
^o^f^t^h^{e exi}^s^tⁱⁿ^{g T}^e^rro^ri^st^T^h^reat^In^t^e^gratⁱ^oⁿ^Cen^t^er.^.^.^.^”^T^hⁱ^s^h^a^{s o}^c^c^u^rred^,^{as t}^h^{e T}^T^I^{C h}^a^{s b}^eenⁱⁿ^co^r^p^o^r^at^edⁱⁿ^t^o^t^h^e
^NCT^C^{’s Dire}^c^t^ora^t^e^of^Inte^llig^eⁿ^c^e^.^T^h^e^NCT^C^c^u^rre^ntly^ha^s^ov^e^r³⁰⁰^pe^rso^nne^l^on^b^o^a^r^{d - e}ⁱ^t^h^e^r^a^s^e^m^plo^y^e^e^{s or}
^assi^gn^ees^f^r^o^m^o^v^{er t}^eⁿ^dⁱ^f^f^eren^t^f^e^d^e^ral^a^g^en^ci^es,^an^d^coⁿ^tⁱⁿ^u^e^{s t}^o^hⁱ^{re add}ⁱ^tⁱ^oⁿ^st^af^f^.^S^{ee F}^a^y^e^Bo^wers,^“U.^S^.
^Inte^llig^eⁿ^c^e^A^g^eⁿ^cⁱ^e^s^Ma^k^e^H^e^a^d^w^a^y^{on Re}^f^o^r^m^,^Christian^Sc^ie^nc^e^M^onitor^,^Ma^r^.^14,²⁰⁰⁵^{, p. 2.}
¹⁴^Quote^sⁱⁿ^t^h^{is se}^c^tion^of^the^re^p^o^r^{t illustra}^teⁱ^d^eⁿ^ti^c^a^l^la^ng^ua^g^e^{in t}^h^e^e^x^e^c^u^tiv^e^orde^{r a}^{nd t}^h^e^a^c^t^{. T}^h^e^NCT^C
^c^onti^nue^s^to^f^unc^tio^{n u}^nde^r^EO¹³³⁵⁴^unt^{il t}^h^e^D^N^I^is^c^onf^ir^m^e^d.
¹⁵^Se^e^ne^w^s^e^c^{tion 11}⁹⁽^d)^of^the^N^a^tiona^l^Se^c^u^r^ity^A^c^{t of}¹⁹⁴⁷^{, a}^s^a^m^e^nde^{d by}^P.L^.¹⁰^8-⁴⁵⁸^,^Se^c^tioⁿ¹⁰^21.
¹⁶^Both^{EO 1}³³⁵⁴^aⁿ^d^P^L¹⁰^8-4⁵⁸^e^x^c^l^ude^inte^llig^eⁿ^c^e^pe^rtaⁱⁿⁱ^ng^e^x^c^l^usiv^e^l^y^{or pure}^l^y^{to d}^o^m^e^stic^te^{rrorists a}ⁿ^d
^dom^e^s^tic^c^ounte^r^te^r^r^o^rⁱ^s^m^f^r^o^m^t^h^e^N^C^T^C^’^s^aⁿ^a^l^y^tic^a^l^r^e^s^pons^ibili^ty^{. Se}^e^EO¹³³⁵^{4 Se}^c^tⁱ^on³⁽^a⁾^aⁿ^{d ne}^w^Se^c^tion
¹¹⁹⁽^d⁾⁽¹⁾^of^the^N^a^ti^ona^{l Se}^c^u^rⁱ^t^y^A^c^{t of}¹⁹⁴⁷^{, a}^s^a^m^e^nde^{d by}^Sec^tion¹⁰²¹^of^P^.^L^.¹⁰^8-⁴⁵⁸^{. H}^o^w^e^v^e^r^,^the^a^c^t^a^llow^s
^t^h^{e NCT}^C^t^o^recei^ve,^ret^aⁱⁿ^,^an^d^dⁱ^ssemⁱⁿ^a^t^e^d^o^m^estⁱ^c^c^ounte^r^te^rr^oris^m^inte^llig^eⁿ^c^e^{to f}^u^lf^{ill its}^re^s^ponsⁱ^b^ili^tie^s^.^Se^e
^Se^c^tion¹¹^9A⁽^e⁾^of^the^N^a^tiona^{l S}^e^c^u^r^ity^A^c^{t o}^f¹⁹⁴^{7, a}^s^a^m^e^nde^d^by^Se^c^{tion 1}⁰²¹^of^P^.^L^.¹^08-⁴⁵^8.^T^h^is^e^x^c^l^us^{ion is}
^g^e^ne^ra^ll^y^inte^rpre^te^{d to}^m^e^aⁿ^tha^t^the^NCT^C^w^{ill not}^be^re^spoⁿ^sibl^e^f^o^{r c}^o^m^p^re^he^nsiv^e^thre^a^t^aⁿ^a^l^y^s^{is c}^onc^e^rⁿⁱ^ng
^t^e^rro^ri^st^gro^u^p^s^b^a^sed^l^a^rgel^yⁱⁿ^t^h^{e Un}ⁱ^t^e^{d S}^t^at^{es an}^{d en}^g^a^gⁱ^ngⁱⁿ^polit^ic^a^lly^m^o^tiv^a^t^e^d^vⁱ^oleⁿ^c^e^w^ithin^the^Un^ite^d
^Sta^t^e^s^{. For}^e^x^a^m^ple^,^dom^e^s^tic^te^r^r^or^is^{t g}^r^ou^ps^{, s}^u^c^h^a^s^the^Ea^r^t^{h L}ⁱ^be^r^a^tion^Fr^oⁿ^t^or^t^h^e^Aⁿ^im^a^l^Lⁱ^ber^a^tion^Fr^oⁿ^t,^do
^{not g}^e^ne^r^a^lly^ta^k^e^dir^e^c^{tion f}^r^om^aⁿ^y^f^o^r^e^ig^{n g}^r^{oup. Se}^e^“^T^he^T^h^r^e^a^t^of^Ec^o-^T^e^r^r^o^rⁱ^sm^,”^te^s^tⁱ^m^ony^o^f^J^a^m^e^s^{F. J}^a^r^boe^,
^Do^m^e^stic^T^e^rro^ris^m^Sectioⁿ^,^Co^uⁿ^terterro^rism^Divⁱ^sioⁿ^,^F^B^I,^Bef^o^{re t}^h^{e Ho}^u^s^{e Resou}^r^{ces Co}^mmⁱ^t^t^ee,^S^u^b^c^o^m^mⁱ^t^t^ee
^on^For^e^s^t^s^,^aⁿ^{d F}^o^r^e^s^t^H^e^a^lth,^Fe^{b. 1}²^,²⁰⁰²^.

It is clear that at least with respect to the baseline functions of the NCTC, there is general
agreement between the executive and legislative branches of government. However, as it pertains
to the roles and responsibilities of the Director of the NCTC, who has yet to be named, and
reporting relationships for the Director of the NCTC to the DNI and to the President, there is less
agreement between these two legal mechanisms. The executive order specifies how the President
prefers to implement the functions of the NCTC. However, the act altered some of the processes
and structures underlying the executive order. While the explicit Act will take precedence legally,
ambiguities in implementation may cause confusion, which could undermine the intent of
integrating the counterterrorism function nationally.
There are at least two areas in which there are inconsistencies between the executive order and
the act: (1) the appointment of the Director of the NCTC, and (2) the roles and responsibilities of
the Director of the NCTC, including the reporting relationships associated with this position. The
Appendix outlines some of the potential inconsistencies or factors which may complicate
effective implementation of the NCTC’s mission between the executive order and the act, and
within the act itself, which may be of congressional interest. To the extent that there are
inconsistencies or contradictions between these two legal mechanisms specific provisions of the
act would take precedence over the executive order.
First, with respect to the appointment of the Director of the NCTC, the executive order stipulates
that this individual will be appointed by the DCI with the approval of the President. As a result of
P.L. 108-458, however, the position of DCI, as envisioned in the National Security Act of 1947, ¹⁷
as amended, no longer exists. Under the act, the Director of the NCTC is appointed by the
President with the advice and consent of the Senate. Although the NCTC now has an acting
director, former head of the TTIC, John O. Brennan, it is not known at this time whether he will
be asked by the President to assume the statutorily defined role of Director of the NCTC. It is
possible that the nomination of the Director of the NCTC may not occur unless and until the U.S.
Senate confirms Ambassador John Negroponte, the President’s nominee for DNI.
Second, a possibly more stark contradiction exists between the executive order and the act with
respect to the reporting relationships for the Director of the NCTC. Under the executive order, the
reporting chain of command for the Director of the NCTC would have the individual reporting
directly to the DCI who, in turn, would report to the President. Even if one changed the language
in the executive order—replacing DCI with DNI—a substantial difference between the executive
order and the act in the reporting relationships of the Director of the NCTC would remain. Under
the executive order, the DCI would have “... authority, direction, and control over the Center and

¹⁷^Se^c^tions¹⁰^2-¹⁰⁴^of^the^N^a^tio^na^l^Se^c^u^r^ity^A^c^{t of}^{1947 w}^e^r^e^de^le^te^{d a}ⁿ^d^r^e^pl^aced^wⁱ^t^hⁿ^e^w^l^aⁿ^g^u^a^ge^regardⁱⁿ^{g t}^h^e
^ne^w^positio^{n of}^{DNI. Unlik}^e^t^h^e^f^o^rm^e^r^DCI^w^{ho he}^{ld sim}^u^lta^ne^o^u^s^l^y^the^posit^io^{ns of}^DC^{I a}^nd^the^Dire^c^t^{or of}^the
^Ce^ntra^{l Inte}^llig^eⁿ^c^e^A^g^eⁿ^c^y^{, the}^{DNI is pro}^h^ibi^t^e^d^f^r^om^c^onc^u^rreⁿ^tly^se^r^v^ing^a^s^the^Dire^c^t^{or of}^the^CIA^,^{or a}ⁿ^y^othe^r
^e^l^e^m^eⁿ^{t of}^the^{IC. (Se}^e^P^.^L^.¹^08-⁴⁵⁸^{, T}^itle^I,^§1^02).

the Director of the Center.” In contrast, the act has the Director of the NCTC’s reporting
responsibilities bifurcated. According to P.L. 108-458, the Director of the NCTC reports to the
DNI with respect to (1) budget and programs of the NCTC, (2) activities of the NCTC’s
Directorate of Intelligence, and (3) the conduct of intelligence operations implemented by other
elements of the IC. However, according to the act, the Director of the NCTC also reports directly
to the President with respect to the “... planning and progress of joint counterterrorism operations
(other than intelligence operations).” Figures 1 and 2 depict these reporting relationships.
Figure 1. Dir., NCTC Reporting Relationships EO 13354
Exec. Order 13354
President
DCI
Dir.,NCTC

Figure 2. Dir., NCTC Reporting Relationships P.L. 108-458
P.L. 108-458
DNIPres ident
Dir., NCTC
The differences between the executive order and Act are summarized here only to highlight
alternative perspectives with regard to the NCTC. Should Congress consider amending P.L. 108-
458, it may want to examine elements within the act that may contribute to a lack of clarity within
the NCTC and the broader IC. While clarity can be a byproduct of experience, specific guidance
may prove useful in facilitating the more rapid development of effective and efficient operations.
There are at least two areas within Section 1021 of P.L. 108-458 that may be worthy of additional
congressional scrutiny. The first concerns the bifurcated reporting relationships the act outlines
for the Director of the NCTC. Through this mechanism the Director of the NCTC reports directly
to President with regard to “the planning and progress of joint counterterrorism operations (other
than intelligence operations).” This language could be construed to mean that under the act the
Director of the NCTC will be reporting to the President on the planning and progress of joint
military counterterrorism operations, a role traditionally reserved to components of the
Department of Defense (DOD). As noted earlier, the Director of the NCTC also reports to the
DNI with respect to (1) the budget and programs of the NCTC; (2) the activities of the NCTC’s
Directorate of Intelligence; and (3) the conduct of intelligence operations implemented by other
elements of the IC. The act, then, differentiates between joint counterterrorism “intelligence
operations” and other (presumably military) counterterrorism operations. This bifurcated structure
was intentionally designed to reflect what the Commission and the Congress believed should be
the dual missions of the NCTC. Its first mission is to integrate and analyze all counterterrorism
intelligence available to U.S. government departments and agencies and to serve as a knowledge
bank on known and suspected terrorist and international terrorist groups. Given that this function
is directly germane and limited to intelligence-related activities, the act stipulates that the
Directorate of Intelligence report to the DNI. It is the second function—strategic counterterrorism
operational planning—that gave rise to the unique reporting structure that has the Director of the
NCTC reporting directly to the President for planning and progress of joint counterterrorism
operations. According to Senator Joseph I. Lieberman, a cosponsor of the act and the ranking

member of the then named Senate Governmental Affairs Committee, the strategic operational
planning function is an “...an Executive branch wide planning—which is beyond the DNI’s ¹⁸
juri sdiction.”
While such reporting mechanisms and processes may be necessary to achieve “jointness,” it is not
implausible to foresee potential conflicts between the DNI and the Director of the NCTC
concerning who is the President’s primary advisor with respect to joint counterterrorism
operational initiatives. Is the role of the DNI as “... principal adviser to the President, to the
National Security Council, and the Homeland Security Council for intelligence matters relating to ¹⁹
national security ...” undermined by establishing a separate reporting channel to the President
for certain counterterrorism operations? Moreover, given that the Director of the NCTC is a
confirmed Presidential appointee, a question could be raised as to whether the individual will
serve more of a policy advisory role to implement the Administration’s agenda, or will serve as an ²⁰
unbiased professional civil servant. Some believe, however, that the NCTC Director will have
greater analytical independence and objectivity because the incumbent will be confirmed by the ²¹
Senate.
A second issue which may be of interest to appropriate congressional oversight committees is the
collocation of what has traditionally been foreign and domestic intelligence operators. In general, ²²
national security professionals look favorably upon the concept of “jointness,” at least in part as
a result of the positive results yielded from the Goldwater-Nichols Department of Defense
Reorganization Act of 1986. This favorable predisposition generally extends to the intelligence
arena, especially with respect to joint intelligence analysis projects. Alternative analysis, “red
teaming,” and competing analysis conducted creatively and without undue duplication, are all
generally thought to result in better analysis. However, with respect to joint intelligence
operations and the integration of traditionally foreign and domestic intelligence operations, there ²³
seems to be less of a consensus. At a macro level, it is clear that coordination in intelligence
operations is a common good. Yet, the legal mechanisms and regulations that underlie and guide
foreign intelligence collection and domestic intelligence collection, particularly as it relates to ²⁴²⁵
U.S. persons, are substantially different.

¹⁸^S^ee^Co^ng^ressioⁿ^a^{l Reco}^rd^,^Decem^b^e^{r 8}^,²⁰⁰⁴^,^S^eⁿ^a^t^e^con^sⁱ^d^eratⁱ^oⁿ^o^f^t^h^{e con}^f^eren^{ce rep}^o^r^t^t^o^acco^m^p^an^y^S^.²⁸⁴⁵^.
^Se^na^tor^Lⁱ^e^b^e^r^m^a^{n c}^ontin^ue^{d t}^h^a^t^the^t^h^eⁿ^-^p^r^o^p^o^s^e^{d N}^C^T^C^Dⁱ^r^e^c^t^or^a^t^e^of^Str^a^te^gⁱ^c^O^p^e^r^a^tiona^l^P^l^aⁿ^ning^w^ould
^c^ond^uc^{t pla}ⁿⁿⁱ^ng^f^o^{r “}^...the^eⁿ^tire^Ex^e^c^u^tiv^e^braⁿ^c^h^—raⁿ^gⁱ^ng^f^r^om^the^c^o^m^b^a^t^aⁿ^{t c}^o^m^m^a^nds^{, to t}^h^e^Sta^t^e^D^e^pa^rtm^e^nt,
^t^o^t^h^{e F}^B^{I’s Cou}ⁿ^t^e^rt^erro^ri^sm^Di^vi^si^oⁿ^t^o^t^h^{e Dep}^a^rt^m^eⁿ^t^o^f^Heal^t^h^an^{d Hu}^m^aⁿ^S^e^rvi^{ces t}^o^t^h^{e CIA}^.^”
¹⁹^Se^e^P.L^.¹⁰^8-4⁵⁸^,^T^itle^{I, S}^u^b^titl^e^A^,^Esta^blishm^eⁿ^{t of}^a^Dire^c^t^{or of}^Na^tiona^{l Inte}^ll^ig^eⁿ^c^e^.
²⁰^Se^e^W^a^lte^{r P}ⁱ^nc^{us, “}^T^he^{Hill, B}^u^{sh, Dif}^f^e^{r on Cou}ⁿ^te^rte^{rror Ce}^nte^r^,”ⁱⁿ^Wa^shing^t^on^P^o^st^,^N^o^v^.²⁸^{, 200}^{4, p.}^A⁶^.
²¹^{See remark}^{s o}^f^Sen^a^to^{r Carl L}^e^vⁱⁿⁱⁿ^C^o^ngr^e^s^sⁱ^on^{al Re}^c^o^r^d^{, p.S}⁹⁸^{82, Se}^pt.²⁹^{, 20}^04.
²²^W^h^ile^c^o^lloc^a^tio^{n m}^a^y^f^a^c^ilita^te^“^j^oint^ne^s^s^,^”^w^ithout^ha^rm^oniz^a^tio^{n of}^b^u^sⁱ^ne^s^s^pra^c^tic^e^s^{, tra}ⁱⁿⁱ^ng^{, a}^nd^pe^rha^p^s^e^v^eⁿ
^doc^triⁿ^e^,^{it w}^{ill n}^o^t,^{in a}^nd^of^itse^l^f^,^yⁱ^e^l^{d joint}ⁿ^e^ss.
²³^Jurisdic^ti^ons^de^fⁱ^ning^w^h^ic^{h IC a}^g^eⁿ^c^y^m^a^y^ha^v^e^the^le^a^d^{in c}^e^r^ta^{in in}^te^llig^eⁿ^c^e^ope^ra^tio^{ns c}^aⁿ^beⁿ^e^bulo^u^{s. F}^o^r
^exa^m^p^l^e,^b^o^t^h^t^h^{e F}^B^{I a}ⁿ^d^t^h^{e Ce}ⁿ^t^ral^In^t^e^l^lⁱ^g^en^{ce Agen}^c^y^{’s d}^o^m^e^s^tⁱ^cal^l^y^-o^ri^en^t^e^d^di^vi^si^oⁿ^h^a^{ve j}^u^rⁱ^sdⁱ^c^tⁱ^oⁿ^t^o^co^l^l^ect
^f^o^re^ig^{n inte}^llig^eⁿ^c^e^w^{ithin the}^Uⁿ^ite^{d Sta}^t^e^s^{. Se}^e^EO¹²³³^3,^Se^c^tio^{n 1.}^{8 f}^o^{r Ce}^ntra^l^Inte^llig^eⁿ^c^e^A^g^eⁿ^c^y
^re^s^ponsⁱ^b^ilitie^s^,^a^nd^Se^c^tion^1.¹⁴^f^o^{r FBI re}^s^ponsⁱ^b^ilit^ie^s^.^D^e^pe^ndⁱⁿ^g^{on c}ⁱ^rc^um^s^t^aⁿ^c^e^s^a^{nd loc}^a^tion^of^aⁿ^ope^ra^tio^n,
^one^a^g^eⁿ^c^y^or^the^othe^r^m^a^y^beⁱⁿ^the^le^a^d^{, w}^{ith t}^h^e^s^u^pp^or^t^of^the^othe^r^.^H^o^w^e^ve^r^,^tr^aⁿ^s^c^e^nding^q^u^e^s^tions^a^b^ou^{t w}^h^ic^h
^a^g^eⁿ^c^y^{is le}^a^d^a^{nd w}^h^ic^{h is sup}^p^o^r^{t is the}^na^tio^na^{l im}^pe^ra^tiv^e^f^o^r^ti^m^e^l^y^c^oor^dina^ti^{on a}^{nd s}^h^a^r^ing^of^the^inf^o^r^m^a^tion
^b^e^t^w^een^{IC agen}^ci^e^sⁱⁿ^vo^l^v^edⁱⁿ^CT^o^p^e^ratⁱ^oⁿ^s^.^S^{ee “S}^pⁱ^{es Cl}^ash^{as F}^B^{I Jo}ⁱⁿ^{s CIA}^Oversea^s^:^S^o^u^r^{ces T}^a^l^k^o^f
^Com^m^unic^a^tion^P^r^oble^m^{in T}^e^rrorism^Role^,”^the^A^ssocⁱ^a^t^e^d^Pre^{ss, Fe}^{b. 1}⁵^,²⁰⁰⁵^{. Se}^e^a^l^{so Ric}^h^a^r^{d B}^.^Sc^hm^{itt a}^nd
^G^r^e^g^M^{iller, “FBI In}^T^a^lk^{s to}^Ex^t^eⁿ^d^Reach^,”^L^o^{s Ang}^e^{les T}ⁱ^mes^{, J}^a^{n. 2}⁸^,²⁰^05.
²⁴^T^h^e^For^e^ig^{n I}ⁿ^te^l^lig^eⁿ^c^e^Sur^v^e^ill^aⁿ^c^e^A^c^{t of}¹⁹⁷^{8 (}⁵^{0 U}^.^S^.^C^.^§1⁸⁰¹^et^seq^.⁾^,^a^s^a^m^e^nde^{d de}^fⁱ^ne^s^U^.^{S. pe}^r^s^oⁿ^s^a^s
^“^...a^c^itiz^eⁿ^of^the^Un^ite^d^Sta^t^e^s^,^aⁿ^a^lie^{n la}^w^f^ull^y^a^d^m^itte^{d f}^o^{r pe}^rm^aⁿ^eⁿ^{t re}^side^nc^e^(a^{s de}^fⁱ^ne^{d in}^se^c^{tion 1}^01(a⁾⁽²⁰⁾^of
⁽^c^onti^nue^d.^..)

The act defines strategic operational planning as “... the mission, objectives to be achieved, tasks
to be performed, interagency coordination of activities, and the assignment of roles and ²⁶
responsibilities.” The executive order does not directly define strategic operational planning,
other than to state generally that it involves the integration of all instruments of national power.
As stated above, under both the executive order and the act, the NCTC itself is expressly
prohibited from executing operations; it assigns roles and monitors overall counterterrorism
operational progress. It is explicitly stated in the executive order that “... each agency
representative to the Center, unless otherwise specified by the DCI, shall operate under the
authorities of the representative’s agency.” That is, while strategic planning may be joint, if the
NCTC Director assigns the FBI, CIA, and Department of Defense certain counterterrorism
operational responsibilities, each agency operates under its own legal authorities. While it may be
implicit, no such similar and explicit legal authority guidance was provided in P.L. 108-458.
The FBI has physically moved a substantial portion of its operational and analytical
counterterrorism personnel from FBI Headquarters to offsite locations in the interest of closer ²⁷
coordination with the rest of the IC’s counterterrorism entities. While not necessarily
“integrated” into the NCTC, these individuals are now “collocated” with elements of the NCTC.
As envisioned by the Commission and P.L. 108-458, this collocation could yield substantial
analytical dividends, particularly when information systems are integrated in a manner that allows
for closer analytical collaboration across the IC. The collocation of IC personnel engaged in
counterterrorism operations may also lead to substantially improved and informed
counterterrorism operations. Human assets recruited by the IC can be highly mobile. As these
individuals move between the United States and overseas locations, coordination amongst and
between IC agencies having sole or shared jurisdiction can add substantial value to an operation,
and avoid inefficient as well as potentially embarrassing operational overlaps. Recent media
coverage suggests tension between the FBI and the domestic intelligence arm of the CIA on ²⁸
domestic intelligence activities. While a distinction must be made between collocation, which
implies reliance on existing legal authorities, and integration, which implies the creation of a new

^(...c^on^tin^ue^d)
^the^Im^mⁱ^g^r^a^{tion a}ⁿ^{d Na}^tio^na^lity^A^c^{t), a}ⁿ^uninc^orp^o^ra^te^{d a}^ssocⁱ^a^tⁱ^{on a}^s^ubsta^nt^ia^{l n}^u^m^b^e^r^of^m^e^m^b^e^r^{s of}^w^h^ic^{h a}^r^e
^c^itiz^eⁿ^{s of}^the^Unite^d^Sta^t^e^s^or^a^lⁱ^e^{ns la}^wf^ull^y^a^d^m^itte^{d f}^o^{r pe}^rm^aⁿ^eⁿ^{t re}^side^nc^e^,^or^a^c^o^rp^ora^tio^{n w}^h^ic^{h is inc}^o^rp^ora^t^e^d
^{in t}^h^e^Uⁿ^ite^d^Sta^t^e^s^{, b}^u^t^doe^s^not^inc^l^u^d^e^a^c^o^r^p^or^a^tio^{n or}^aⁿ^a^s^s^o^cⁱ^a^{tion w}^h^ic^{h is}^a^f^o^r^e^igⁿ^pow^e^r^{, a}^s^de^fⁱ^ne^{d in}
^su^b^s^ectioⁿ^{(a) (1}^),⁽²^),^o^r⁽³^).
²⁵^T^h^e^role^{s a}^{nd re}^sp^onsi^b^ilit^ie^{s of}^the^{IC a}^r^e^se^{t f}^o^{rth in}ⁿ^u^m^e^{rous le}^g^a^l^m^e^c^h^aⁿ^is^m^s^inc^l^uding^,^butⁿ^o^t^lim^ite^{d to, T}^h^e
^N^a^tiona^{l Se}^c^u^ri^ty^A^c^{t of}^{1947, a}^s^am^e^nde^{d; c}^e^r^ta^{in s}^e^c^tions^of^T^itle^s^{10 a}^nd⁵⁰^of^the^U^.^S.^Co^de^{; n}^u^m^e^r^ous^c^l^a^s^sⁱ^fⁱ^e^d
^a^{nd u}ⁿ^c^l^a^ssifⁱ^e^d^e^x^e^c^u^tiv^e^orde^{rs, suc}^h^a^s¹²³³³^,^title^d^Uni^t^e^d^S^t^at^e^s^Inte^lligeⁿ^c^e^Ac^tiv^itie^s^;^aⁿ^d^{a se}^ri^{es o}^f^cl^assi^fⁱ^ed
^an^d^un^cl^assi^fⁱ^ed^regu^l^a^tⁱ^oⁿ^s^and^guⁱ^d^elⁱⁿ^{es kn}^o^wⁿ^{as DCI Di}^rectⁱ^v^e^s^.^In^addⁱ^tⁱ^oⁿ^t^o^s^o^m^e^o^f^t^h^{e a}^f^o^r^emen^tⁱ^oⁿ^e^{d IC}
^g^u^ide^line^s^{, t}^h^e^FBI^{is a}^l^{so re}^q^u^ire^d^to^e^x^e^c^u^te^{its inte}^llig^eⁿ^c^e^a^c^tiv^itie^{s in a}^m^a^nne^{r tha}^t^{is c}^o^nsiste^nt^w^{ith, a}^m^ong^othe^r
^re^g^u^la^{tions, t}^h^e⁽¹⁾^A^ttorne^y^G^eⁿ^e^ra^l^G^u^ide^line^s^f^o^{r FBI Na}^tiona^l^Se^c^u^rity^Inv^e^stiga^{tions a}ⁿ^d^Foreⁱ^g^{n Inte}^llig^eⁿ^c^e
^Colle^c^tio^{n (U), a}ⁿ^{d (}²^{) A}^ttorne^y^G^e^ne^r^a^{l G}^u^ide^line^s^on^G^eⁿ^e^{ral Crim}^e^s^{, Rack}^eteerin^g^En^terp^rises,^an^d^T^e^rro^rism
^Ente^rprise^Iⁿ^v^e^stig^a^{tions. Fo}^{r a}ⁿ^a^sse^ss^m^e^{nt of}^the^poteⁿ^tia^{l tra}^d^e^o^ff^{s be}^t^w^e^eⁿ^cⁱ^v^{il libe}^r^tie^{s a}^{nd d}^o^m^e^s^tic^inte^llig^eⁿ^c^e
^c^o^lle^c^tion^,^se^e^Ka^te^Ma^{rtin, “}^D^o^m^e^s^tic^Inte^llig^eⁿ^c^e^a^{nd Civ}^{il L}ⁱ^be^rtie^s,”^S^A^{IS R}^evi^ew^,^v^o^{l., X}^X^I^V^{, no. 1}^(W^inte^r-
^Spring²⁰^04).^Fo^{r a}ⁿ^a^sse^ssm^eⁿ^{t of}^the^dif^f^e^re^nc^e^s^be^twe^eⁿ^la^w^eⁿ^f^o^rc^e^m^eⁿ^{t a}^{nd i}ⁿ^te^llig^eⁿ^c^e^,^se^e^St^ua^{rt A}^.^Ba^k^e^r,
^“^S^hou^ld^Spie^s^B^e^C^ops^?^”ⁱⁿ^Fore^{ign Polic}^y^,^Wⁱ^nte^r¹⁹^94/⁹⁵^.
²⁶^Se^e^Se^c^tion¹¹⁹⁽^j)⁽²⁾^of^the^N^a^ti^ona^{l Se}^c^u^rⁱ^ty^A^c^{t of}^1947,^a^s^a^m^ende^d^by^P^.^L^.¹^08-⁴⁵^8,^Se^c^tion¹⁰^21,⁵⁰^U^.^S.C^.
^§40^{2 (}^j⁾⁽²⁾^.
²⁷^A^pprox^im^a^t^e^l^y^$35.^{5 m}^{illion w}^a^s^a^ppro^p^ria^t^e^d^f^o^{r t}^h^e^“^{... re}^l^o^c^a^tⁱ^on^of^porti^ons^of^the^Co^unte^r^te^rr^o^r^is^m^Dⁱ^vⁱ^sⁱ^{on ..}^.,”
^{in t}^h^e^FY²⁰⁰⁵^C^o^ns^oli^d^a^t^e^d^A^ppr^opr^ia^ti^ons^A^c^t,^P^.^L^.¹^08-⁴⁴^7.
²⁸^S^{ee “S}^pⁱ^{es Cl}^ash^{as F}^B^{I J}^oⁱⁿ^{s CI}^A^O^v^erse^as:^S^o^u^r^{ces T}^a^l^k^o^f^Co^mm^uⁿⁱ^catⁱ^oⁿ^P^r^ob^l^e^mⁱⁿ^T^e^rro^ri^sm^Ro^l^e^,^”^t^h^e
^A^sso^ci^a^t^ed^P^r^ess^{, Fe}^b^.¹⁵^,²⁰⁰⁵^.^{See also}^Rich^ard^B.^Sch^m^{itt an}^d^G^r^e^g^M^{iller, “FBI In}^T^a^lk^{s to}^Ex^t^eⁿ^d^Reach^,”^Lo^s
^Ange^le^s^Tim^e^s^{, J}^a^n.²⁸^,²⁰^05.

body of law and regulations, the possibility exists that unintentional mission creep and
operational zeal could lead to situations in which rules designed to guide traditional foreign
intelligence collection may be applied to U.S. persons. That is, the civil liberties of U.S. persons
could be at risk if domestic intelligence collection is directed against them in a manner that may ²⁹
not be consistent with or constrained by appropriate Attorney General Guidelines.
Finally, with respect to the resolution of disputes between the NCTC and its constituent agencies,
the act stipulates that the DNI shall resolve conflicts. In the event that the heads of constituent
agencies disagree with the DNI’s resolution, they may appeal the resolution to the President.
Given the NCTC’s role to “... monitor the implementation of strategic operational plans,” it is
possible to envision conflicts between the NCTC and an agency with respect to what exactly
constitutes “implementation” and how, specifically, operational success is defined. This may be
exacerbated by the act’s distinction between joint intelligence counterterrorism operations, and
joint counterterrorism operations other than intelligence. Regardless, resolution of potential
disputes within the NCTC is one area that may be worthy of congressional oversight.
An issue for Congress is whether to let the existing intelligence reform act speak for itself (and let
certain ambiguities be resolved during implementation), or to intervene to address apparent
ambiguities through amendments to the act now. Alternatively, the Executive Branch may choose
to intervene to clarify apparent ambiguities within P.L. 108-458 or between EO 13354 and P.L. ³⁰
108-458. In any event, congressional oversight of the status quo and implementation of the
present act could prove useful.
Should Congress amend intelligence reform legislation in the 109^th Congress, or introduce new
legislation (possibly through the annual intelligence authorization process) related to the NCTC,
there are at least two areas in which it might consider action. The first concerns the reporting
relationships of the Director of the NCTC to the DNI and to the President. While the coordination
of planning for counterterrorism operations is necessarily an executive branch wide endeavor, the
daily implementation of such practice remains a relatively nebulous function and may, therefore,
be a topic for close congressional oversight. Some might argue that if a close professional and ³¹
personal bond develops between the President and the DNI, then a direct reporting chain for the
Director of the NCTC to the President for certain joint operations relating to counterterrorism is
unlikely to undermine the DNI’s new authority. The frequency, substance, and duration of the
direct meetings between the President and the Director of the NCTC may pale in comparison to
those between the President and the DNI. However, it is possible that confusion could develop
because the act differentiates between intelligence joint counterterrorism operations and joint
counterterrorism operations (other than intelligence operations)—presumably military operations.

²⁹^T^h^e^For^e^ig^{n I}ⁿ^te^l^lig^eⁿ^c^e^Sur^v^e^ill^aⁿ^c^e^A^c^{t of}¹⁹⁷^{8, a}^s^a^m^e^nde^{d (}⁵⁰^U^.^S.C^§1⁸⁰¹^et^seq^.⁾^a^u^th^or^iz^e^s^,^unde^r^c^e^r^taⁱⁿ
^cⁱ^rc^um^st^aⁿ^c^e^s^a^{nd subje}^c^t^t^o^a^c^o^{urt or}^de^{r, e}^l^e^c^t^ro^nic^surv^e^illa^nc^e^dire^c^t^e^d^a^g^aⁱ^{nst U.S.}^pe^rsons.
³⁰^Se^e^c^o^m^m^e^nts^of^R^a^{nd B}^e^e^r^s^,^f^o^r^m^e^r^N^a^tiona^{l Se}^c^u^r^ity^C^ounc^il^o^f^fⁱ^cⁱ^a^l^{, in W}^a^lte^r^Pⁱ^nc^us^{, “}^N^e^g^r^o^p^onte^’^s^Fir^s^t^J^o^b^I^s
^Show^ing^W^{ho’s Boss: I}ⁿ^te^llig^eⁿ^c^e^Dire^c^t^{or Must A}^sse^{rt A}^u^thority^{, Ex}^pe^{rts Sa}^y^,^”ⁱⁿ^Wa^shⁱⁿ^gt^on^Po^st^,^Ma^r^.^{1, 20}^05,^p.
^A^13.
³¹^P^r^e^s^ideⁿ^{t B}^u^s^h^s^t^a^t^e^dⁱⁿ^his^pr^e^s^s^br^ie^fⁱ^ng^a^nno^uncⁱⁿ^g^theⁿ^o^mⁱ^na^tion^of^the^c^u^r^r^e^{nt U}^.^{S. A}^m^ba^s^s^a^dor^{to I}^r^a^q^J^o^hⁿ
^N^e^g^r^oponte^a^s^D^N^I^t^h^a^t^his^nom^ine^e^:^“^{... w}^{ill ha}^v^e^{access o}ⁿ^{a d}^a^il^y^b^a^{sis in}^th^{at h}^e^’ll^b^e^my^p^r^imar^y^b^r^ie^f^e^{r....” See}
^W^h^ite^H^ous^e^P^r^e^s^s^C^onf^e^r^eⁿ^c^e^,^F^e^{b. 1}⁷^,²⁰^05,^a^t^ht^tp:/^/w^w^w^.^w^hite^hous^e^.^g^o^v^/^ne^w^s^/^r^e^l^e^a^s^e^s^/²⁰⁰^5/⁰²^/prⁱ^nt^/²⁰⁰⁵⁰²¹^7-
^2.htm^l^.

This distinction may prove difficult to make in practice because, generally, even joint military
counterterrorism operations require sound tactical intelligence to achieve their objectives.
Second, Congress may wish to consider adding to its expressed prohibition for the NCTC to
execute operations, language which would explicitly clarify the legal authorities of constituent
NCTC members with respect to counterterrorism operations. Alternatively, Congress could
consider specifically stating in law that the Privacy and Civil Liberties Oversight Board ³²
established in P.L. 108-458, has explicit responsibility for oversight of the joint counterterrorism
operations of the NCTC, particularly when these operations involve U.S. persons.
Finally, another potential area for congressional scrutiny may be the appropriate arrangements
and congressional committees that have jurisdiction over the activities of the NCTC. While the
Directorate of Intelligence’s activities are largely bounded by traditional intelligence functions,
such as the setting of collections requirements, collection of raw intelligence, and the conduct of
intelligence analysis, the Directorate of Strategic Operational Planning’s activities go beyond
intelligence. As such, the universe of committees having oversight over the executive branch
wide functions associated with strategic operational planning may exceed those that will conduct
oversight over the NCTC’s Directorate of Intelligence. One could envision a situation in which,
not unlike the activities of the Department of Homeland Security, the number of committees
claiming jurisdiction over the NCTC’s Director of Strategic Operational Planning could be
substantial. The challenge would then be to coordinate congressional oversight in a manner that is
rigorous and meaningful without unduly burdening NCTC leadership.
The ostensible purpose for the creation of intelligence “centers,” including the NCTC, is to bring
together the disparate elements of the IC having different intelligence foci and missions in order
to achieve common intelligence and national security objectives. Given the positive results of
“jointness” achieved in the armed forces context as a result of the Goldwater-Nichols Defense
Reorganization Act of 1986, there is an inherent attraction to apply such “best practices” to the
IC. Yet the cohesive integration of functions across the IC requires relatively clear guidance, or at
least the absence of contradictory or confusing authorities. With respect to the NCTC, the act
outlines some authorities which may cause a lack of clarity, which may, in turn, undermine the
effective and efficient implementation of a truly national approach to counterterrorism. The
bifurcated reporting relationships the act outlines for the Director of the NCTC, ill-defined
distinctions between joint counterterrorism intelligence operations and joint counterterrorism
operations (other than intelligence), as well as the authority of the NCTC to define operational
success and have the tools necessary to ensure compliance with its joint plans, are all areas in
which unclear authority could lead to inefficient business practices. Professionalism, and a high
degree of commitment among the counterterrorism cadre assigned to the NCTC, may go a long
way toward ameliorating these ambiguities and thus negate the need for legislative action. It is
also possible, however, that the ambiguities outlined in the act may only complicate the inevitable
growing pains associated with establishing an effective, nationally coordinated counterterrorism

³²^Se^e^T^itle^{I, Su}^btitle^{F -}^P^r^iv^a^c^y^a^{nd Civ}^{il L}ⁱ^be^rtie^s,ⁱⁿ^P.L^.¹⁰^8-4⁵⁸^{. A}^s^c^u^rre^ntly^dra^f^te^{d, the}^a^c^t^woul^{d lik}^e^l^y^a^llow
^s^u^c^h^ov^e^r^sⁱ^g^h^{t, a}^s^it^is^s^t^a^t^e^d^t^h^a^t^the^Boa^r^d^“^{... s}^h^a^{ll c}^o^ntin^ua^lly^re^vⁱ^e^w^{, re}^g^u^la^tions^{, e}^x^e^c^u^tiv^e^braⁿ^c^h^po^lic^ie^s^,^aⁿ^d
^pr^oc^e^dur^e^s⁽ⁱ^nc^lu^ding^im^ple^m^eⁿ^t^a^tion^of^s^u^c^h^r^e^g^u^la^tio^ns^,^polic^ie^s^,^a^nd^pr^oc^e^d^ur^e^s⁾^...^to^eⁿ^s^u^r^e^t^h^a^t^pr^iv^a^c^y^a^{nd c}ⁱ^v^il
^lⁱ^b^ertⁱ^e^{s are p}^r^ot^ect^ed^.^”

intelligence effort. As such, narrowly targeted and clarifying oversight guidance or legislative
remedies may assist the NCTC in reaching optimal effectiveness in the least amount of time.

^{Executive Order 1335}⁴^{P.L. 1}^08-4⁵⁸^Consistency^Implications
^{(1) Analysis and integration of int}^{elligence; (2)}^{Identical language}^Consistent^Exp^{erience in}^{implementation of}^{this core mission}
^{coordination of strategic operational planning (3)}^{may have im}^portant^{policy implic}^{ations. For}
^{assigning operational respo}^nsibilit^{ies to agencies,}^{example, as the}^{NCTC is an I}^ntel^ligence
^{(4) serving as a}^{shared k}^{nowledge bank; a}^{nd (5)}^{Community entity sta}^{ffed largely}^{with detailees, it}
^ensu^{ring agencies}^{have a}^ppro^{priate access to}^{has the}^b^{urden of}^{proving t}^{hat it}^{will put the}
^intelligence^{Community’s interests a}^{bove tho}^{se argua}^{bly more}
^{parochial interests of its con}^stitu^{ent mem}^ber
^{agencies. The b}^{urden of t}^{his res}^p^{onsibility may lie}
^{mostly with NCTC leadership, as well as with the}
^{Director of National Intelligence. In s}^{hort, the}
^{NCTC may need to p}^{rotect its “jointness.”}
ⁱ^{ki/CRS-RL32816}^{Does not execute}^operations^{Identical language}^Consistent^N/A
^g/w^of^{DCI appoints with a}^p^p^{roval of President}^{Appointed by P}^{resident with advi}^{ce and conse}^nt^Inconsistent^{P.L. 108-4}^{58 s}^upe^{rsedes. Within}^{the act, does the}
^s^.or^{of Senate}^{fact that t}^{he Director, NCTC is a Senate ap}^proved
^le^ak^{presidential nominee make t}^{he D}^{irector, NCTC}
^{more of a princi}^{pal policy aide than ex}^{pert sta}^ff?
^://wiki
^h^ttp^{(1) Access information}^necessa^ry^{for NCTC}^{function; (2) cor}^{relate, analyze, evaluate, integrate}^{Identical with the e}^{xception of es}^tablishing^{information systems. I}ⁿ^{addition to the duties}^Some^{inconsistencies}^{Does the direct reporting}^{role of the NCTC}^{Director to the President for int}^elligence
^{and produce}^reports^{on ter}^{rorism information;}^{outlined in the EO, t}^{he act also in}^{cludes the}^{operations relating to counte}^rter^{rorism matters}
^{(3) disseminate terrorist informat}^{ion to the}^follow^{ing provisions: (1) Serve as principal}^{potentially undermine t}^{he a}^uthori^{ty of the DN}^I?

^{President, Vice President in the p}^erformance^of^{intelligence adviser to the DNI o}ⁿ^intelligence
^{executive f}^uⁿ^{ctions; (4) su}^pport^{DoJ and DHS in}^{operations relating to CT; (2) pr}^{ovide strategic}
^{dissemination mission; (5) establi}^{sh information}^{operational plans for civilian and}^{military CT}
^{systems and a}^rchitect^{ure; (6) assi}^{st DCI in}^{efforts; (3) advise DNI on}^exte^nt^{to which}
^{establishing and}^{prioritizing intell}ⁱ^{gence collection}^{NCTC budget meet}^{s p}^{residential priorities, (4)}
^requirem^ents^{relating to CT; and (7) identify}^{develop strategy for combi}^{ning te}^{rrorist travel}
^{specific CT planning}^efforts.^{intelligence and law enforceme}^{nt; and (5)}
^{primary re}^{sponsibility within U.S.}^{to conduct}
^{net assess}^ments

^{Executive Order 1335}⁴^{P.L. 1}^08-4⁵⁸^Consistency^Implications
^nd^{Specifies that “...each agency}^repr^{esentative to the}^{None Possibly}^Coll^{ocation is not necessarily integration. However,}
^{Center...shall operate under t}^he^{authorities of the}^inconsistent^{could potential and uninte}^{ntional mission creep a}^nd
^represe^{ntative’s agency.”}^{operational zeal lead to s}^{ituations in which}^rules
^{designed to guide traditional fore}^{ign intelligence}
^collecti^{on may be a}^{pplied to U.S.}^persons?
^{Director, NCTC reports to DCI.}^{Director, NCTC reports directly to President}^Inconsistent^{Does the direct report}^{role of th}^{e Director, NCTC}
^{for “planning}^{and p}^{rogress of joint CT}^undermine^{the a}^{uthority of t}^{he D}^NI?

^{operations (other tha}^{n intelligenc}^e
^{operations).” Reports to DNI on}^{all other}
^matters.
ⁱ^{ki/CRS-RL32816}
^g/w
^s^.or
^le^ak
^://wiki
^h^ttp

^T^o^{dd Mas}^s^e