Sen. Edwards Proposes Homeland Intelligence Agency

February 13, 2003. Sen. John Edwards (D-NC) introduced S 410, the Foreign Intelligence Collection Improvement Act of 2003. It is a massive bill -- 91 pages in PDF -- that is more than twice as long as the first version of the Homeland Security Act. It would revise the way the government conducts foreign intelligence operations within the U.S., and the way government stores, shares and safeguards information.

It is a major government reorganization bill. It would create a Homeland Intelligence Agency within the Department of Homeland Security, and reduce the responsibilities of the FBI. The bill does not expand the powers of the federal government with respect to intelligence gathering. Rather, it is premised upon the assumption that by moving certain functions to a new agency, those functions will be conducted more effectively.

It also limits executive power, in two respects. First, a substantial part of the bill is devoted to protecting privacy, civil rights and Constitutional rights, particularly through the creation of an entity to safeguard these rights. Second, it would increase the ability of the Congress to oversee and control the operations of executive branch.

The bill is a carefully drafted, detailed government reorganization bill. However, Sen. Edwards' explanation of his bill was a partisan and political attack upon President Bush. Sen. Edwards (at right), who may run against Bush in the 2004 Presidential election, proclaimed that "This President is failing the test on homeland security. ... The bare minimum of homeland security improvements we need -- $10 billion more this year -- costs less than half of President Bush's tax cut just for 226,000 millionaires." See, Cong. Record, Feb. 13, 2003, at S2487-8.

Perhaps the most important aspect of the bill is its proposal to create a new entity titled the Homeland Intelligence Agency, that would take over certain activities and operations of the Federal Bureau of Investigation (FBI). Perhaps the second most important aspect of the bill is its proposal to create an Office of Privacy and Civil Liberties Protection within the new Agency.

The bill states that "It is the purpose of this Act to create a new element of the Intelligence Community of the United States Government, within the Department of Homeland Security, whose primary mission will be the collection and dissemination of foreign intelligence and counterintelligence inside the United States, including the plans, intentions, and capabilities of international terrorist groups operating in the United States. The mission of such entity, the Homeland Intelligence Agency, shall be conducted with appropriate respect for the privacy and civil liberties of United States persons."

Title I of the bill, which is also carries the title "Homeland Intelligence Agency Act of 2003", states that "The mission of the Homeland Intelligence Agency shall be to support the Director of Central Intelligence ... as follows: (1) By serving as the primary entity within the United States Government responsible for collecting foreign intelligence on the plans, intentions, and capabilities of international terrorists and terrorist groups operating inside the United States."

The mission also includes "conducting operations to collect foreign intelligence and counterintelligence within the United States, including foreign intelligence and counterintelligence regarding United States persons, through human sources and by other lawful intelligence collection means" and "conducting operations to collect foreign intelligence and counterintelligence through the use of electronic surveillance and physical searches pursuant to the Foreign Intelligence Surveillance Act ..."

The mission further includes "conducting analysis, including identification and assessment", and "assisting the Under Secretary for Information Analysis and Infrastructure Protection of the Department of Homeland Security ... relating to the identification and assessment of threats".

Finally, the mission includes "ensuring the prompt and efficient dissemination of foreign intelligence reports to appropriate consumers in the United States Government", and "facilitating the sharing of information between the Agency and other elements of the United States Government, State governments, and local governments".

Sen. Edwards explained in detail why activities of the FBI should be transferred to this new entity. He stated that "This bill takes away from the FBI the responsibility to collect intelligence on foreign terrorist groups operating in America. And this bill gives that responsibility to a new Homeland Intelligence Agency."

He said that "there is also no question that the FBI made many serious mistakes before September 11. There was the Phoenix memorandum, a memorandum about suspicious behavior at flight schools that the FBI did not follow up on. There was the Moussaoui case, where the FBI had in its possession a computer full of critical information, yet did not access the information there. There were even two hijackers who the FBI knew were threats but did not track and stop."

"Part of the problem is bureaucratic resistance at the FBI", said Sen. Edwards. "But the reality is that the FBI is also a bureaucracy, and it is the nature of a bureaucracy to resist change."

He continued that "Beyond the problem of bureaucratic resistance, there is a more fundamental problem with the FBI. That problem is the conflict at the base of the FBI's mission, which is a conflict between law enforcement and intelligence. These are fundamentally different functions. Law enforcement is about building criminal cases and putting people in jail. Intelligence isn't about building a case; it is about gathering information and putting it together into a bigger picture. The FBI has never been built for intelligence. It has always been an agency that hires people who want to be law enforcement officers, trains them to be law enforcement officers, and promotes them for succeeding as law enforcement officers."

The bill would also create an Office of Privacy and Civil Liberties Protection within the new Homeland Intelligence Agency. (See, pages 15-37.) Its responsibilities would include "assuring that the use of technologies by the Agency sustain, and do not erode, privacy protections in the collection, use, and disclosure of personal information".

It would have substantial authority, including the power to conduct audits and inspections, "to administer or take oaths, affirmations, or affidavits", and to "require the production of evidence by subpoena". Its subpoenas would be enforceable in District Court. It would have no prosecutorial power, but could refer cases to the Department of Justice (DOJ).

Sen. Edwards stated that his proposed agency "will do a better job protecting our civil liberties. While we will not give the new agency any new authorities, we will place new checks on its ability to collect information about innocent people. Time and again, we have seen this administration overreach when it comes to civil liberties. That should stop, and this proposal will help stop it. We will require judicial approval before the most secretive and invasive investigations of religious and political groups. We will require greater public reporting and more internal auditing. We will establish a new and independent office of civil liberties within the new agency that is dedicated to protecting the constitutional rights of innocent Americans."

This bill would also create new requirements regarding submitting reports to the Congress. The bill would also set a limited and short (two year) term for the Director of the new agency. Thus, every two years the Senate would have the opportunity to reject or accept the nominee.