Wednesday, April 28, 2010


If you wish to find the defining document for the intelligence collection, analysis, and dessimination by the federal government look no further than E.O. 12333. The text can be found at:
It is fascinating to me that this order has not been amended since the arrival of the Obama Administration given the many inherent flaws in the organizational construct of the INTEL community and its systems and process.
Disclosure: Not my favorite subject even though officially a battalion S-2 for over a year in FRG during late 60's during the Cold War. And not ever a member of the formal INTEL community. But I did grow up and lived for many years in Arlington County, VA and knew throughout my life people who became or once were station chiefs for the CIA including several forced into retirement by the book published by Frank Snepp.

But I was asked to be interviewed by the 9/11 Commission staff and did so for approximately five hours. The thrust of my testimony was my concern with so-called information sharing and how the career bureacracy used the non-statutorily derived "need-to-know" doctrine to protect themselves and their organization from needed cooperation and collaboration with others. This sentiment I am sure is not and was not exclusively mine and the Commission's final report does discuss the problems with information sharing. That stated where does this issue stand now and what is the context for FEMA post-Katrina and post PKEMA of 2006.
When FEMA was created a number, probably too many IMO, of the senior officialdom that entered FEMA had the notion that somehow they would be running new and secret organizations that would be created after the execution of a SIOP by the Soviet Union. Although I had most of the critical clearances FEMA could grant I never found any evidence that such new organizations would be created and in fact that was not the approach I took in many many classified exercises and briefings of high-rank DOJ and DOD officials. The closest that any plan or plans came were PLAN D and OTHER THAN D which have been mentioned previously in/on this blog.
Interestingly, President Reagan's first FEMA Director did ask the General Counsel for an opinion as to whether FEMA was part of the formal INTEL community? The answer drafted by me was NO but every agency had a right under E.O. 11030 to submit a draft new or revised Executive Order to the President at any time. Thus,the Director was free to draft an amendment to E.O. 12333 or its predecessor to add FEMA to the roster. Understanding that FEMA might lose more than it would gain this was never done. FEMA did have a large contingent of officials with CIA clearances to raw INTEL data and I constantly opposed this as being risky for two reasons. First the quality of the personnel in FEMA and second the fact that there was no "need-to-know" any data that might risk exposure of collection methods for personnel of FEMA.
It should also be understood that the National Security portfolio in the Office of the General Counsel, FEMA was not officially mine until July 1, 1985, so I was somewhat of a late comer to that aspect of FEMA's portfolio. By that time NSDD-188 had been issued and it had been made very clear to FEMA that it had NO role in National Security Policy development, formulation, or implementation, and in fact a number of major Reagan Administration officials wanted FEMA to be put out of business. This had occurred for several reasons but largely because of the lack of skills and competencies of those handling the Department of Justice and the egos and hubris of its officialdom in the runup and provision of security to the LA Olympics. Confusingly the long-term effort to draft a comprehensive revision to E.O. 10490 (1969) had also irritated DOJ and that irritation was also expressed by proposed FEMA amendments to the Disaster Relief Act of 1974, Public Law 93-288, which would have limited the President's authority under that statute. Typically FEMA's left hand and right hand never quite could be coordinated even on the most important issues. It was at this point that I was assigned two important interface missions with DOJ who knew me from my years of running FEMA litigation as the Associate GC for Litigation. And if not for other things, for bringing DOJ what was then the largest civil suit ever filed for money damages in 1980 involving the NFIP and its operations in S. Louisiana. The first role was to be the primary legal interface on the redrafting of E.O. 10490 which ended with the issuance of E.O. 12656 discussed elsewhere on this blog. And the second role was to be the COTR for a formal IAA/Contract with DOJ to review and update materials in the President's football dealing with civil agency roles in various crisis situations.
Going back to INTEL and its role in FEMA, let's be very clear that INTEL is not part of the FEMA mission but it is in fact one of the primary reasons DHS was created and in particular to work the civil liberty, privacy, tradeoffs with collection, analysis, and dessimination of domestic intelligence. Thus, back to "need-to-know" doctrine and how that is policed, interpreted, and processed in DHS generally and with respect to FEMA.
I was always the proponent that FEMA did not have to have all of its personnel with a window into the National Security world. And that at best it needed a small staff with appropriate clearances that could provide the National Security world with insights as to FEMA capabilities and operations. In many ways that occurred under Director James Lee Witt who was ordered by President Clinton to focus on the FEMA natural hazards role and thus largely left dormant the interface with the National Security Community which proved awkwards after the bombings at the WTC in 1993 and the Murrah Building in 1995.
FEMA lost the capability to create SAPs in the Bush 41 era, perhaps largely because a very senior official called me and asked what I thought about the issue and stated that FEMA did not need that authority and that part of the problem was FEMA not knowing exactly which programs were theirs and which were the province of other Executive Branch organizations. The subject of polygraphing led to my being asked by the highest polilitical ranks in FEMA if FEMA should adopt polygraphing, used frequently in the INTEL community and COMSEC world. I stated absolutely not and gave my reasoning. I was also asked if FEMA employees or officials could ever be officially (legally) subjected to polygraphing and of course answered yes but only when FEMA employees and officials were participants in the programs of other Executive Branch organizations and their participation had been specifically approved by the Director FEMA. It should be noted that whatever else occurred FEMA never adopted any official positon or doctrine on polygraphing during my tenure. Did it happen? Perhaps! Was it legal? Perhaps!

My point in discussing any of this is that FEMA is largely a grant making administrative agency and has limited technical skills or knowledge which is in fact what is required in the world of INTEL.

I also found from time to time that officals and employees that I believed might well have important roles in various crisis situations often lacked appropriate clearances. I do know that lack of clearances did adversly impact certain FEMA involvement in a number of situations in my time--1979-1999!

Oddly under DOJ guidance then in effect, all of my litigation staff had full background investigations as did I and therefore when it came time for necessary clearances they all were able to rapidly obtain them when necessary. This BI need was nothing more than refinements of suitablilty requirements and not because of their need as litigation specialists to have access to classified information although that did occur from time to time.

As to E.O. 12333 it will be of interest to see if amendments suddenly appear to this order under the Obama Administration.