Trump Has Considerable Authority to Revamp the Intelligence Community

FBI Director James Comey listens at left as National Intelligence Director James Clapper testifies on Capitol Hill in Washington, Tuesday, Jan. 10, 2017, before the Senate Intelligence Committee hearing on Russian Intelligence Activities.

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FBI Director James Comey listens at left as National Intelligence Director James Clapper testifies on Capitol Hill in Washington, Tuesday, Jan. 10, 2017, before the Senate Intelligence Committee hearing on Russian Intelligence Activities.

But the the 2004 law that created the Office of the Director of National Intelligence creates some hurdles as well.

The dust-up over Russian interference in the U.S. election and resulting skepticism of President-elect Donald Trump has spawned speculation that the incoming president will revise the 12-year-old structure of the post-9/11 intelligence community.

A Wall Street Journal front-page story on Jan. 4 reported that Trump was preparing such a reorganization, though it was dismissed by his press spokesman Sean Spicer. Still, it prompted anxiety among intelligence professionals whose studied consensus on the Russian actions was waived aside by Trump. One former acting CIA chief warned in an op-ed that Trump’s dismissal of the community’s conclusions as politically biased would drive away talent.

Whatever the president-elect and his team are preparing to do after Jan. 20, the debate has resurrected decade-old questions about the Office of the Director of National Intelligence: Is its staff bloated? Is it successfully sharing intel among the 16 agencies in the intelligence community? Is Trump right to complain that key agencies such as the CIA in the past have gotten too many estimates wrong?

A Jan. 6 Wall Street Journal editorial argued that a shake-up would be useful to cut central staff “bloat” and move toward a structure similar to that of the military’s joint chiefs of staff, where representatives from each service work together.

While acknowledging room for improvement in Senate testimony last week, Current ODNI Director James Clapper has touted ODNI’s progress in integrating the 17 agencies to coordinate output while preserving operational independence.

Trump thus far has been guided mostly by former Defense Intelligence Agency chief Lt. Gen. Michael Flynn, his controversial designee as national security adviser who has been critical of many mainstream intelligence findings. The president-elect was also urged by former New York City Mayor Rudy Giuliani to appoint his own intelligence group to reexamine the evidence of Russian hacking.

Trump has since named former Indiana Republican Sen. Dan Coats to be the new director of national intelligence. Coats presumably would run any effort at reorganization.

Government Executive interviews with veteran observers of the structure set up under the 2004 Intelligence Reform and Terrorism Prevention Act say that Trump would have both a chief executive’s leeway and statutory restrictions in what he might do to reorganize his White House team’s relationship with the office that Clapper will soon vacate.

That office, according to a U.S. intelligence official familiar with its structure, has a staff of about 1,800, though only 40 percent are “core staff” working joint duty either under Clapper or as detailees to other organizations. The remaining 60 percent, plus an unknown number of contractors, work at various specialized centers such as the National Counterterrorism Center, the National Counterintelligence and Security Center, and the National Counterproliferation Center. The core staff, this source said, is proportionately about the size of the CIA’s former community management unit before the 2004 creation of ODNI.

Who Has the President’s Ear?

“You have to draw a distinction between what Trump can do formally and what he can do practically,” said Stephen Vladeck, a University of Texas law professor with a focus on federal jurisdiction, constitutional law and national security law. “There are relatively strict formal limits on how much he could do to marginalize or dismantle ODNI, but practically, because so much of this enterprise is about access, it is the president who chooses whom to listen to.”

The 2004 law simply “recognized the potential logjam that arises from having 16 intelligence agencies that, if all reported directly to the president, would mean chaos that all agree would be bad for efficient government and effective supervision of intelligence activities,” Vladeck said.

Questions about Trump’s plans for the intel community parallel questions about his plans in other contexts, he added. “Just how much respect will Trump and his staffers have for the value of the bureaucracy?” he asked. “It depends on when they actually take the keys, how well Flynn and Coats get along and whether there is a perception that ODNI is somehow interfering with the White House.”

Overall, however, “there is not a lot he can do without Congress as a formal matter, but plenty he can do informally,” Vladeck said. “It is both within the presidential prerogative and good government to make sure that agencies like ODNI are efficient. But cutting off the chicken’s head does nothing to trim the chicken.”

Paul Pillar, a veteran CIA analyst of 28 years and now affiliated with Georgetown University’s Center for Security studies, said, “Any significant changes in terms of the powers of the DNI, the relative powers and roles of the ODNI versus constituent agencies within the community would have to be a matter of legislation.”

The 2004 law essentially split the job of the director of central intelligence into two separate jobs. Following the laws passage, however, government attorneys spent many hours hammering out how exactly the legislation defined the DNI’s role in relation to the CIA director’s role. That was one of the law’s deficiencies, Pillar said.

But Trump “could probably do a fair amount by executive fiat,” in areas such as staffing procedures and use of short-term seconded officers from other intelligence agencies, though Pillar said he hopes any reforms are “kept completely separate from presidential vindictiveness” over some of the intel community’s recent judgments.

Pillar is on record as having been critical of the 2004 legislation which, he said, was “simply a way of responding to the anguish of 9/11.” He wasn’t surprised that the ODNI grew in numbers as opposed to serving merely as a coordinating body. And though he respects Clapper, he doesn’t see the setup used for the past decade as a “significant improvement over the previous set-up. ODNI’s accomplishments are in “narrow areas,” Pillar said, such as modernization of information technology and compatibility of databases. “Who talks to whom, particularly in counter-terrorism,” he said, “was not affected by what the upper reach of the organization chart looks like. The people at CIA and the FBI knew quite well who their counterparts were, and worked on the same problems and communicated with them at all times.”

Reform By Executive Order

A new President Trump could do “several things unilaterally, such as reviewing executive orders and other directives and regulations to determine what changes should be made in line with whatever goals” he has, said George Jameson, a consultant who spent more than 33 years at CIA and the greater intelligence community as a senior counsel, policy director and manager of congressional affairs.

“Changes could be made to enhance powers of the ODNI, which doesn’t necessarily mean making it bigger, but making it a strong one to improve coordination and collaboration across the intel community,” he said. Or Trump could reduce the ODNI’s power while enhancing power elsewhere. “The consequences could be far-ranging, such as less helpful coordination, less insight into what individual agencies are doing, recreation of a bureaucracy elsewhere,” Jameson said. The intel community’s budget depends greatly on the Office of Management and Budget, and Congress can also cut it.

An example of a presidential document open to change is Executive Order 12333, signed by President Reagan in 1981 to extend powers and responsibilities of intelligence agencies and direct the leaders of U.S. federal agencies to co-operate fully with CIA requests for information. It tasks CIA with oversight of covert action, but the DNI has an explicit role and must keep Congress informed. “The president could change that tomorrow if he wants the National Security Council to do it,” Jameson said.

Other directives address approval of warrants under the Federal Intelligence Surveillance Act, the role of the President’s Intelligence Advisory Board and declassification. “Any place the DNI has a role, the president can change it,” Jameson said. “But he risks running afoul of the statute if he crosses certain lines.”

That 2004 law specifically requires the DNI to, for example, write reports on narcotics in National Parks and to monitor use of tunnels by illegal immigrants. The powers of the National Counterterrorism Center are divided, Jameson added, because it reports directly to the president on anti-terrorism planning but to ODNI on intelligence, but Trump could decide to reduce ODNI’s role.

Currently the ODNI has top authority to declassify documents, but the White House could return that authority to individual agencies of the National Security Council, he added.

“What is the goal?” Jameson said. “I urge that any change be designed to improve the national security interests,” whether that means decreasing or increasing ODNI’s authority, and should favor good process over bad process. ”At what point does cutting or changing something turn out to be counterproductive?” he suggests Trump ask. “If the main goal is improving efficiency and the national security interest, use a scalpel, not a sledgehammer.”

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