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system will cease, men from the targeted countries will continue to face
increased scrutiny when they enter or leave the country. The ACLU and
Lawyers Committee for Human Rights cautiously welcomed the policy
change.

According to Press Report, Some Guantanamo Detainees to be Released <? f

Time magazine reports that the U.S. is planning to release at least 140 S~\ fV\ •—> ^
detainees being held at the Guantanamo Bay military facility. Described by
military officials as "the easiest 20%", Time notes that their processing has
proceeded more quickly since the Supreme Court decided to consider —
whether American courts have jurisdiction to consider the appeals of -P & »«/i
foreign nationals held at the facility.
Law and Policy News and Analysis
_, __
Supreme Court T_
Supreme Court to Consider International Kidnappings r~y~"6>V7
The Supreme Court has agreed to hear arguments in a case raising the
issue of whether federal agents can enter another country and covertly
kidnap suspected criminals and bring them to the U.S. for trial. In a case
involving a Mexican man kidnapped abroad by U.S. agents and brought to
the U. S. to answer questions related to his role in the death of a federal
agent, the Ninth Circuit Court of Appeals ruled that federal agents acted
illegally and upheld a lower court's $25,000 award to the man. The Bush
Administration said that while covert, overseas kidnappings are rare, the
government needs the authority to use them as parts of its efforts to
combat terrorism.

Supreme Court Affirms Police Entry Technique

The Supreme Court ruled unanimously that it was constitutional for police
to wait 20 seconds before entering a drug suspect's home by force. The
Court ruled that the 20-second delay was sufficient because any further
delay could have given the suspect time to flush the evidence down the
toilet. "Police seeking a stolen piano may be able to spend more time to
make sure they really need the battering ram," Justice David Souter wrote
in the Court's opinion. The Court reversed a ruling by the Ninth Circuit
Court of Appeals that said officers should wait "a significant amount of
time" before entering a suspect's property, and a "more substantial amount
of time" between knocking and entering by force if property would be
destroyed. As the Court decides this issue and grants cert to two additional
Ninth Circuit cases, The Recorder reviews the Court's action on Ninth
Circuit cases and notes that "the nation's largest circuit is increasingly
dominating the high court's calendar."

Supreme Court Considers State-Supported Religious Studies

The Supreme Court has heard arguments in a case that considers whether
theology students may be denied state scholarships available to students
studying other disciplines. As an undergraduate at a Christian- affiliated
school in Washington state, Harvard Law School student Joshua Davey
was awarded a state scholarship for high achieving, low income students
only to have it rescinded because he was majoring in theology. The Ninth
Circuit Court of Appeals ruled in Davey's favor, saying that the state had no
compelling interest in limiting what he could study. In a statement
supporting the state's policy. Americans United for Separation of Church
and State said, "States should never be required to support religious
education. .. The Founding Fathers wanted religion to be supported
voluntarily, not through taxpayer funding."

Companies Aren't Required to Re-hire Substance Abusejg

The Supreme Court ruled unanimously that federal law does not require
employers to rehire employees fired because of drug abuse. The Court
ruled that as long as the company's policy is applied the same way to all
workers, it does not discriminate against the disabled or violate the
Americans with Disabilities Act (ADA). Drug abusers are not classified as
disabled under the ADA.

For more Supreme Court news and commentary, visit ACS member Tom

12/7/2003
TO: Chris H.
CC: Kevin, Lorry, and Lloyd
FROM: Gordon
DATE: November 26, 2003
RE: Team 6' s Monograph Outline

Thank you for requesting our comments on Team 6's monograph outline. My comments
are set forth below. A copy of the monograph outline with Lorry's annotations is
attached.

My major comment is that the monograph concentrates too much on "what was and what
is," with less emphasis on "what should be, and how do we get there." An alternative
approach would be to follow the following syllogism: (1) "what should be (in terms of
capabilities and performance, not laws, structures, and culture);" (2) "what was;"
(3) "what is;" (4) "is there a gap between what is and what should be;" and (5) "what
needs to be done to get us to where we should be (laws, structures, and culture, etc.)."

My specific comments are below:

(1) The monograph might consider clarifying whether the term "Domestic
Intelligence/Counterterrorism Community" is used by the USG and/or
commentators or is a term coined by Team 6. And does this term reflect that the
community already exists (or is beginning to exist), or does the term reflect
Team 6's judgment that a community needs to be formed out of currently
disparate pieces?

(2) Section LA. might benefit from a historical section (which would be I.A.I)
concerning the history of domestic intelligence in order to set the context for the
legal framework governing domestic intelligence.

(3) Section I.B.I by implication includes a discussion of whether the FBI had an
overall strategy for combating international terrorism, but it might be useful to
create a separate section (which would be Section I.B.I.a) to this effect given the
likely importance of actually having a written, endorsed, and disseminated
counterterrorism strategy for the success of counterterrorism efforts in practice.

(4) Concerning Section I.B.3.b, it is unclear what "The role of other agencies or
institutions on [sic] FBI operations" means and what the relationship of this
section is to Section I.C.

Regarding Section I.C, it may be that CIA's NR Division is a minor player and
should come at the end of that section. Moreover, the outline does not mention
other players such as INS, Customs, State and local law enforcement, the private
sector, etc., which probably are important.
(5) I do not understand the title of Section II, "The Extent to Which the Structure and
Operations of the Domestic Intelligence Community was a Factor in the Failure of
the Domestic Intelligence Community to Protect the Homeland on
September 11." The question presupposes that the "Domestic Intelligence
Community" failed, which may be true but must be proven based on a theoretical
definition of "failure."

Moreover, assuming that the "Domestic Intelligence Community" failed, why are
the potential sources of the failure limited to "structure" and "operations?"
Perhaps there were other causes: (a) lack of funds; (b) lack of "good people" who
would have failed despite the best organizational structure; (c) failure by the
Intelligence Community to provide relevant and timely information; (d) failure by
other agencies to provide relevant and timely information; (e) failure of
policymakers to determine that international terrorism was important; and (f) any
criminal or otherwise negligent conduct by a USG official.

Finally, the monograph may have to argue why, if the FBI had been able to do
any of (A)-(E) correctly, that the FBI would have been able to prevent or
substantially disrupt the attack. Otherwise, why would (A)-(E) be important?

(6) Regarding Section III.B.l, does the FBI have a new strategy for counterterrorism?

(7) Perhaps Section III. A ("The Changing Roles Within the Community and the
Altered Legal Framework") needs to set forth the "ideal" for how domestic
intelligence should be done. Without doing so at the beginning of Section III,
Section IV.D has no ideal to which to compare the current state of domestic
intelligence.

Sections III and IV probably should include a substantial discussion of foreign

models for domestic intelligence (MI-5, CSIS, etc.) for comparative purposes.

Finally, Section IV probably should set forth policy options, pros-and-cons of

these options, and recommendations.
 'NOV.19.2003 6:29PM NO. 264 P. 2/5

Commission Sensitive

TEAM 6 MONOGRAPH OUTLINE

Law Enforcement and Domestic Intelligence
L The Domestic Intelligence/Counterterrorisrn Community Prior to the September 11 Attacks

A. The Members of the Domestic Intelligence/Counterterrorism Community and their

Respective Roles Prior to September 11 (jJo,
^«^j
1. The legal framework governing intelligence collection4nd counterterrorism
activity within the United States

2. The actual roles assumed by the various agencies acting within the United
States

B. The FBI's Approach to Combating International Terrorist Activity in the United

States prior to September 11. ^

1, The FBI's collection, processing, and dissemination of intelligence regarding

foreign terrorist activity within the United States

a. Collecting the "dots"

b. Connecting the "dots"

/-^T^^t^O
c. Sharing the'picture with others

2. The FBI's structure, traditions, and priorities and their impact on

counterterrorism strategy

a. The law enforcement mentality

K^AJ
'b. Thefieldoffice structure/^e ^$^ ^

c. The oppression of tradition

forces on the FBI's counterterrorism strategy

%£'•
> i^\^ ~yv
r
J a. Legal constraints - real and imagined — on the FBI's operations
d/Lfljf: - f -*-' JK~jf-^v* ^\nfa ^.,fj-s> . —- /) /* c.r <%- /}J ^j-^^C ^J
/ C^\^7 C.
^--^-^_/Z_ —- -- - -• -y^ f

b. TherpJ^ofother agencies or institutions onFBI operations

i. The "White House's influence /

X/5^^^fe>^^Uv^d^2^
ii. Congress and the poxveriof the puree

Commission Sensitive
 NOV. 19.2003 6:29PM • NO.264 P.3/5

Commission Sensitive

iii. The Department of Justice's directives

iv. The influence of fellow community members

C. The Other Participants in the Domestic Counterterrorism Efforts - Who They Were
and What They Were Doing

1. The CIA'sKR Division

2. The Department of Defense and Protection of the Homeland

3. The NSA and the Issue of U.S. Persons

IL The Extent to Which the Structure and Operations of the Domestic Intelligence Community
Was a Factor in the Failure of me Domestic Intelligence Community to Protect the
Homeland on September 11

A, The lack of a search for Hazmi and Mihdhar when they entered the United States and
established residence in early 2000.

attention on Hazmi and Mihdhar but ultimately a failed search over Summer
2001.
.
/Vf fJ C. Hijackers' stumbles and other possible missed opportunities,
(r i \Qf
T oA \- "^e Phoenix EC: missed opportunity or distraction?
J
E. The failed pre-9/11 investigation into Moussaoui, < r-»<J2j)c^_ ,

III. The Domestic Intelligence/Counterterrorism Community Since the September 11 Attacks

A. The Changing Roles Within the Community and fee Altered Legal Framework

B. The Reinvention of the FBI Since the September 11 Attacks

1, The FBI's new collection, processing, and dissemination of intelligence

regarding foreign terrorist activity within the United States

a. Collecting the "dots"

b. Connecting the "dots?

c. Sharing the/picture with others

2. The FBI's new structure, ana priorities and^heir impact on counterterrorism

Commission Sensitive
NOV.19.2003 6=29PM . NO.264 P.4/5

Commission Sensitive

strategy

a. Prevention as the new motto

b. Centralization of the counterterrorism effort

c. Changing technology, incentives, and ways of thinking

d. The changing operational landscape - JTTFs, TTIC,A>US/

3. 'The impact of external forces on the FBI's counterterrorism strategy

a. The new legal landscape - its impact on jjffectiveness

b. Theicomgrn^olaJof other agencies or institutions^nJFBI operations

i. The White House's influence

<ryCxl^C<2-<_^-«*--i
ii. Congress and the power &t the

iii. The Department of Justice's directives

iv. The impact of competition for the FBI's job J,

-•;-•• - ' '• - ' " X " "
4. How Far the FBI Has Come a^Whether It Has Come Far EnoughJ,.}

a. Intentions versus reality - how far has the FBI come along its intended
trajectory //•.

b. How much former the FBI must go'fo'meet the needs of ourprinwY
domestic counterterrorism agency

C. The Department of Homeland Security and its intended role in the Intelligence
Community

D. The Other Participants in the Domestic Counterterrorism Efforts - Who They Are
Now and What They Are Doing

1. The CIA's NR Division ^

2. The Department of Defense and Protection of the Homeland

3. The NSA and the Continuing Issue of U.S. Persons

Commission Sensitive
NOV.19.2003 6=29PM NO.264 P.5/5

Commission Sensitive

W. Defining the Future of the Domestic Intelligence/Counterterrorism Community

A. Infonnalion Sharing - Analysis of the Way Forward

B. The Foreign/Domestic dichotomy and resolving artificial barriers to an effective

intelligence program.

ling vulnerabilities - whose job?

.e best way to close the remaining gaps between the existing domestic intelligence
.ction and the ideal

Commission Sensitive
TO: Chris H.
CC: Kevin, Lorry, and Lloyd
FROM: Gordon
DATE: November 26, 2003
RE: Team 6's Monograph Outline

This memorandum responds to your request for comments on Team 6's monograph
outline (a copy of which is attached).

My major comment is that the monograph concentrates too much on "what was and what
is," with less emphasis on "what should be, and how do we get there." An alternative
approach would be to follow the following syllogism: (1) "what should be (in terms of
capabilities and performance, not laws, structures, and culture);" (2) "what was;"
(3) "what is;" (4) "is there a gap between what is and what should be;" and (5) "what
needs to be done to get us to where we should be (laws, structures, and culture, etc.)."

My specific comments are below:

(1) The monograph might consider clarifying whether the term "Domestic
Intelligence/Counterterrorism Community" is used by the USG and/or
commentators or is a term coined by Team 6.

(2) Section LA. might benefit from a historical section (which would be I.A.I)
concerning the history of domestic intelligence in order to set the context for the
legal framework governing domestic intelligence.

(3) Section I.B.I by implication includes a discussion of whether the FBI had an
overall strategy for combating international terrorism, but it might be useful to
create a separate section (which would be Section I.B.I.a) to this effect given the
likely importance of actually having a written and endorsed counterterrorism
strategy for the success of counterterrorism efforts in practice.

(4) Concerning Section I.B.3.b, it is unclear what "The role of other agencies or
institutions on [sic] FBI operations" means and what the relationship of this
section is to Section I.C.

Regarding Section I.C, it may be that CIA's NR Division is a minor player and
should come at the end of that section. Moreover, the outline does not mention
other players such as INS, Customs, State and local law enforcement, the private
sector, etc., which probably are important.

(5) I do not understand the title of Section II, "The Extent to Which the Structure and
Operations of the Domestic Intelligence Community was a Factor in the Failure of
the Domestic Intelligence Community to Protect the Homeland on
September 11." The question presupposes that the "Domestic Intelligence
 Community" failed, which may be true but must be proven based on a theoretical
definition of "failure."

Moreover, assuming that the "Domestic Intelligence Community" failed, why are
the potential sources of the failure limited to "structure" and "operations?"
Perhaps there were other causes: (a) lack of funds; (b) lack of "good people" who
would have failed despite the best organizational structure; (c) failure by the
Intelligence Community to provide relevant and timely information; (d) failure by
other agencies to provide relevant and timely information; and (e) failure of
policymakers to determine that international terrorism was important.

Finally, the monograph may have to argue why, if the FBI had been able to do
any of (A)-(E) correctly, that the FBI would have been able to prevent or
substantially disrupt the attack. Otherwise, why would (A)-(E) be important?

(6) Regarding Section III.B.l, does the FBI have a new strategy for counterterrorism?

(7) Perhaps Section III.A ("The Changing Roles Within the Community and the
Altered Legal Framework") needs to set forth the "ideal" for how domestic
intelligence should be done. Without doing so at the beginning of Section III,
Section IV.D has no ideal to which to compare the current state of domestic
intelligence.

Sections III and IV probably should include a substantial discussion of foreign

models for domestic intelligence for comparative purposes.

Finally, Section IV probably should set forth policy options, pros-and-cons of

these options, and recommendations.
 NOV.19.2903 6:29PM NO.264 P.2/5
/

/ Commission Sensitive

TEAM 6 MONOGRAPH OUTLINE

Law Enforcement and Domestic Intelligence

L The Domestic InteUigence/Counterterrorism Community Prior to the September 11 Attacks

A. The Members of the Domestic mtelligence/Counterterrorism Community and their

Respective Roles Prior to September 11

1. The legal framework governing intelligence collection and counterteirorism

activity within the United States

2. The actual roles assumed by the various agencies acting within the United
States

B. The FBI's Approach to Combating International Terrorist Activity in the United^

States prior to September 11. "^

1. The FBI's collection, processing, and dissemination of intelligence regarding

foreign terrorist activity within the United States

a. Collecting the "dots"

b. Connecting the "dots"

c. Sharing the picture with others

2. The FBI's structure, traditions, and priorities and their impact on

counterterrorism strategy

a. The law enforcement mentality

b. The field office structure

c. The oppression of tradition

3. The impact of external forces on the FBI's counterterrorism strategy
a. Legal constraints - real and imagined - on the FBI's operations

b. The role of other agencies or institutions on FBI operations

i. The "White House's influence

.^_, ii. Congress and the power of the purse

Commission Sensitive
NOV.19.2003 6:29PM ' NO.264 P.3/5

Commission Sensitive

iii. The Department of Justice's directives

iv. The influence of fellow community members

C. The Other Participants in the Domestic Ckunterterrorism Efforts - Who They Were
and What They Were Doing

1. The CIA'sHR Division

2. The Department of Defense and Protection of the Homeland

3. The NSA and the Issue of U.S. Persons

IL The Extent to Which the Structure and Operations of the Domestic Intelligence Community
Was a Factor in the Failure of me Domestic Intelligence Community to Protect the
Homeland on September 11

A. The lack of a search for Hazmi and Mihdhar when they entered the United States and
established residence in early 2000.

B. New attention on Hazmi and Mihdhar but ultimately a failed search over Summer
2001.

C. Hijackers' stumbles and other possible missed opportunities,

D. The Phoenix EC: missed opportunity or distraction?

E. The failed pre-9/11 investigation into Moussaoui,

III. The Domestic Intelligence/Counterterrorism Community Since the September 11 Attacks

A. The Changing Roles Within the Community and the Altered Legal Framework

B. The Reinvention of the FBI Since the September 11 Attacks

1. The FBI's new collection, processing, and dissemination of intelligence

regarding foreign terrorist activity within the United States

a. Collecting the "dots"

b. Connecting the "dots"

c. Sharing the picture with others

2. The FBI's new structure, and priorities and their impact on counterterrorism

Commission Sensitive 't

NOV.19.2003 6:29PM . NO.264 P.4/5

Commission Sensitive

strategy

a. Prevention as the new motto

b. Centralization of the counterterrorism effort

c. Changing technology, incentives, and ways of thinking

d. The changing operational landscape - JTTFs, TTIC,

3. "The impact of external forces on the FBI's counterterrorism strategy

a. The new legal landscape - its impact on effectiveness

b. The changing role of other agencies or institutions on FBI operations

i. The White House* s influence

ii. Congress and the power of the purse

iii. The Department of Justice's directives

iv. The impact of competition for the FBI's job

, -'- ' -- *'

4, How Far the FBI Has Come and Whether It Has Come Far Enough

a. Intentions versus reality ~ how far has the FBI come along its intended
trajectory

b. How much further the FBI must go to meet the needs of our primary
domestic counterterrorism agency

C. The Department of Homeland Security and its intended role in the Intelligence
Community

D. The Other Participants in the Domestic Counterterrorism Efforts - Who They Are
Now and What They Are Doing

1. The CIA's NR Division

2. The Department of Defense and Protection of the Homeland

3. The NSA and the Continuing Issue of U.S. Persons

Commission Sensitive
NOV.19.2003 6:29PM NO.264 P.5/5

Commission Sensitive

IV. Defining the Future of die Domestic Intelligence/Counterterrorism Community

A. Information Sharing - Analysis of the Way Forward

B. The Foreign/Domestic dichotomy and resolving artificial barriers to an effective

intelligence program.

C. Mapping vulnerabilities - whose job?

D. The best way to close the remaining gaps between the existing domestic intelligence
function and the ideal

Commission Sensitive