Three ways Trump could restructure the intelligence community
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It is no secret that President-elect Trump and the intelligence community do not necessarily see eye to eye on certain things. Whether it is Russian interference in the presidential election, the situation in Syria, or the security of the government’s communication systems, the two are effectively ships passing each other in the night, and “never the twain shall meet.”

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With Trump’s inauguration fast approaching, rumors are already circulating about possible bureaucratic changes being prepared for the intelligence community. Initial reports – which, to be fair, have been refuted by Trump’s team – indicate that Trump plans to streamline and slim down certain agencies, including possibly the Office of the Director of National Intelligence and the Central Intelligence Agency. Whatever Trump’s team is actually planning, if they truly are looking to “fix” some of the inefficiencies in the intelligence community, I would humbly submit the following three ideas.

 

First and foremost, a decision needs to be made with respect to what exactly the ODNI is supposed to be. When the office was created in 2004, the intention was for it to serve as the central integrating location for intelligence within the government. From the outset, however, it lacked the real authority to actually fulfill those lofty intentions. The enabling legislation kept the sprawling behemoth that is the Department of Defense separated from the control of the ODNI, allowing the Secretary of Defense to effectively maintain authority over far more intelligence assets and resources than the Director of National Intelligence. That flaw in the legislation has remained unresolved to this day.

Trump needs to decide – in a way that neither President Bush nor Obama ever decided – whether ODNI is going to be the authoritative central hub of intelligence or not. If Trump wants to centralize the IC, he should push for congressional legislation to amend the original legislation and place DoD under the control of the ODNI. That would, without a doubt, result in significant bureaucratic friction and tension, but it would be the only true way to make the ODNI fulfill its original expected purpose. 

Alternatively, if Trump is not going to take that step, then he should push for the re-decentralization of the IC and forego the fiction that the ODNI truly has any current authority. It would be reasonable to reallocate much of the ODNI’s operational authorities back to agencies such as the CIA, and slim down the ODNI’s budget and staff. The ODNI itself could technically remain in existence, but it would serve more as a mere advisory and oversight entity similar to the role the Joint Chiefs of Staff fulfills for the military. 

Second, settle on a role for the FBI and stick with it. For the last 16 years, the FBI has gone back and forth between whether it is a law enforcement agency, a counterintelligence agency, or both. It’s resulted in a messy distribution of resources that has undermined the Bureau’s ability to fulfill its core functions. If Trump wants there to be a domestic counterintelligence entity similar to what the British and Israelis maintain, then splinter off those assets and resources from the FBI (as well as the Department of Homeland Security, which has its own confusing mission statement) and create a separate, independent agency that reports directly to the ODNI. Maintaining these two competing wings of the FBI, one of which is the Bureau’s historical foundation, has produced mixed results at best and needs to be resolved.

Third, fix the broken whistleblower process. The range of leaks during the Obama Administration alone ran the gamut from Chelsea Manning and Edward Snowden’s disclosures of alleged civil liberties violations and foreign policy scandals, to alleged manipulation of intelligence by senior officials in U.S. Central Command with respect to the war against ISIS. Whatever the merits of those leaks to the press, in and of themselves, that they occurred at all was due in no small part to the insufficiency of the internal whistleblower process. Much of the due process protections that exist for whistleblowers within the Intelligence Community are strictly administrative (Presidential Policy Directive 19), and recent legislation meant to provide stronger protections remains in its infancy. 

Whistleblower advocates can point to stories of those who tried to use the whistleblower process and allegedly faced direct retaliation, such as former NSA official Thomas Drake, who faced criminal prosecution and ultimately pled guilty to a misdemeanor charge after the bulk of the government’s case against him fell apart. Snowden himself specifically cited Drake’s case as a reason why he did not try to raise his concerns through internal channels. 

While I will never condone the leaks of classified information made by Manning or Snowden, that they felt the proper channels were futile is an indictment of the IC’s efforts to reassure whistleblowers that they can report their concerns without fear of retribution.

Trump’s preference for secrecy is well known, and he has spoken more than once about his desire to impose supplemental (and arguably unconstitutional) non-disclosure agreements on some of his senior staffers to prevent the later publication of “tell all” books. If he pursues a deeper crackdown on leakers than done by President Obama and Bush, and takes no action to fix the whistleblower system, he’s only asking for more pain down the road, with no end in sight. 

If he seeks to truly strengthen the whistleblower process, no matter the short-term pain his administration might face through embarrassing protected disclosures by lawful whistleblowers, he can take credit for ensuring that a means of keeping government accountable was finally fixed after years of failed attempts by his more politically experienced predecessors.

Trump was elected due in part to his reputation as a negotiator, a deal maker, and someone who can fix what others cannot. The three topics listed above have confounded his predecessors and many bureaucrats within the Beltway. If he truly wants to make this nation safer, and actually has the managerial skills he claims to possess, these three problems should be major priorities during his administration.

Bradley P. Moss is a partner at the Washington, D.C. Law Office of Mark S. Zaid, P.C., and the deputy executive director of the James Madison Project, through which he has represented media outlets such as Gawker, Daily Caller, and the Daily Beast in FOIA lawsuits against the Bush and Obama administrations.


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