Congressional Record: October 4, 2004 (Senate)
Page S10296-S10358
NATIONAL INTELLIGENCE REFORM ACT OF 2004
The PRESIDING OFFICER. Under the previous order, the Senate will now
resume consideration of S. 2845, which the clerk will report.
The bill clerk read as follows:
A bill (S. 2845) to reform the intelligence community and
the intelligence and intelligence-related activities of the
United States Government, and for other purposes.
Pending:
Collins Amendment No. 3705, to provide for homeland
security grant coordination and simplification.
Lautenberg Amendment No. 3767, to specify that the National
Intelligence Director shall serve for one or more terms of up
to 5 years each.
Kyl Amendment No. 3801, to modify the privacy and civil
liberties oversight.
Feinstein Amendment No. 3718, to improve the intelligence
functions of the Federal Bureau of Investigation
Stevens Amendment No. 3839, to strike section 201, relating
to public disclosure of intelligence funding.
Ensign Amendment No. 3819, to require the Secretary of
State to increase the number of consular officers, clarify
the responsibilities and functions of consular officers, and
require the Secretary of Homeland Security to increase the
number of border patrol agents and customs enforcement
investigators.
Reid (for Schumer) Amendment No. 3887, to amend the Foreign
Intelligence Surveillance Act of 1978 to cover individuals,
other than United States persons, who engage in international
terrorism without affiliation with an international terrorist
group.
Reid (for Schumer) Amendment No. 3888, to establish the
United States Homeland Security Signal Corps to ensure proper
communications between law enforcement agencies.
Reid (for Schumer) Amendment No. 3889, to establish a
National Commission on the United States-Saudi Arabia
Relationship.
Reid (for Schumer) Amendment No. 3890, to improve the
security of hazardous materials transported by truck.
Reid (for Schumer) Amendment No. 3891, to improve rail
security.
Reid (for Schumer) Amendment No. 3892, to strengthen border
security.
Reid (for Schumer) Amendment No. 3893, to require
inspection of cargo at ports in the United States.
Reid (for Schumer) Amendment No. 3894, to amend the
Homeland Security Act of 2002 to enhance cybersecurity.
Allard Amendment No. 3778, to improve the management of the
personnel of the National Intelligence Authority.
Byrd Amendment No. 3845, to enhance the role of Congress in
the oversight of the intelligence and intelligence-related
activities of the United States Government.
Warner Modified Amendment No. 3877, to modify the role of
the National Intelligence Director in the appointment of
intelligence officials of the United States Government.
Leahy/Grassley Amendment No. 3945, to require Congressional
oversight of translators employed and contracted for by the
Federal Bureau of Investigation.
Reed Amendment No. 3908, to authorize the Secretary of
Homeland Security to award grants to public transportation
agencies to improve security.
Reid (for Corzine/Lautenberg) Amendment No. 3849, to
protect human health and the environment from the release of
hazardous substances by acts of terrorism.
Reid (for Lautenberg) Amendment No. 3782, to require that
any Federal funds appropriated to the Department of Homeland
Security for grants or other assistance be allocated based
strictly on an assessment of risks and vulnerabilities.
Reid (for Lautenberg) Amendment No. 3905, to provide for
maritime transportation security.
Reid (for Harkin) Amendment No. 3821, to modify the
functions of the Privacy and Civil Liberties Oversight Board.
Roberts Amendment No. 3748, to clarify the duties and
responsibilities of the Ombudsman of the National
Intelligence Authority and of the Analytic Review Unit within
the Office of the Ombudsman.
Roberts Amendment No. 3739, to ensure the sharing of
intelligence information in a manner that promotes all-
sources analysis and to assign responsibility for competitive
analysis.
Roberts Amendment No. 3750, to clarify the responsibilities
of the Directorate of Intelligence of the National
Counterterrorism Center for information-sharing and
intelligence analysis.
Roberts Amendment No. 3747, to provide the National
Intelligence Director with flexible administrative authority
with respect to the National Intelligence Authority.
Roberts Amendment No. 3742, to clarify the continuing
applicability of section 504 of the National Security Act of
1947 to the obligation and expenditure of funds appropriated
for the intelligence and intelligence-related activities of
the United States.
Roberts Amendment No. 3740, to include among the primary
missions of the National Intelligence Director the
elimination of barriers to the coordination of intelligence
activities.
Roberts Amendment No. 3741, to permit the National
Intelligence Director to modify National Intelligence Program
budgets before their approval and submittal to the President.
Roberts Amendment No. 3744, to clarify the limitation on
the transfer of funds and personnel and to preserve and
enhance congressional oversight of intelligence activities.
Roberts Amendment No. 3751, to clarify the responsibilities
of the Secretary of Defense pertaining to the National
Intelligence Program.
Kyl Amendment No. 3926, to amend the Immigration and
Nationality Act to ensure that nonimmigrant visas are not
issued to individuals with connections to terrorism or who
intend to carry out terrorist activities in the United
States.
Kyl Amendment No. 3881, to protect crime victims' rights.
Kyl Amendment No. 3724, to strengthen anti-terrorism
investigative tools, promote information sharing, punish
terrorist offenses.
Stevens Amendment No. 3826, to modify the duties of the
Director of the National Counterterrorism Center as the
principal advisor to the President on counterterrorism
matters.
Stevens Amendment No. 3827, to strike section 206, relating
to information sharing.
Stevens Amendment No. 3829, to amend the effective date
provision.
Stevens Amendment No. 3840, to strike the fiscal and
acquisition authorities of the National Intelligence
Authority.
Stevens Amendment No. 3882, to propose an alternative
section 141, relating to the Inspector General of the
National Intelligence Authority.
Collins (for Inhofe) Amendment No. 3946 (to Amendment No.
3849), in the nature of a substitute.
Sessions Amendment No. 3928, to require aliens to make an
oath prior to receiving a nonimmigrant visa.
Sessions Amendment No. 3873, to protect railroad carriers
and mass transportation from terrorism.
Sessions Amendment No. 3871, to provide for enhanced
Federal, State, and local enforcement of the immigration
laws.
Sessions Amendment No. 3870, to make information sharing
permanent under the USA PATRIOT ACT.
Warner Amendment No. 3876, to preserve certain authorities
and accountability in the implementation of intelligence
reform.
Collins (for Cornyn) Amendment No. 3803, to provide for
enhanced criminal penalties for crimes related to alien
smuggling.
Collins (for Baucus/Roberts) Modified Amendment No. 3768,
to require an annual report on the allocation of funding
within the Office of Foreign Assets Control of the Department
of the Treasury.
Collins (for Stevens) Amendment No. 3903, to strike section
201, relating to public disclosure of intelligence funding.
Frist (for McConnell) Amendment No. 3930, to clarify that a
volunteer for a federally-created citizen volunteer program
and for the program's State and local affiliates is protected
by the Volunteer Protection Act.
Frist (for McConnell) Amendment No. 3931, to remove civil
liability barriers that discourage the donation of equipment
to volunteer fire companies.
The PRESIDING OFFICER. The Chair recognizes the distinguished Senator
from Maine.
Ms. COLLINS. Thank you, Mr. President. The bill is now officially
before the Senate. It is open for amendment. We have great deal of work
to do on this legislation, as the Presiding Officer is well aware. I do
anticipate many votes later today, starting at 4:15. I do anticipate a
late session tonight in order to make considerable progress on the
bill.
In addition, I want to alert my colleagues to the fact that the
majority leader, with the consent of the Democratic leader, did file a
cloture motion last week that will ripen tomorrow morning. So we are
determined to make good progress on this bill. We made a great deal of
progress last week. Negotiations continued over the weekend. But we
have to finish this highly significant bill. That is the leader's
intention. It is the floor managers' intention. And we will be working
long and hard to do so both tonight and tomorrow night.
I thank the Chair.
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The PRESIDING OFFICER. The Chair, in a helpful way, wishes to inform
the Senate that under the previous order, at the hour of 4:15 today,
the Senate will proceed to a series of votes on the pending amendments
with 2 minutes equally divided for debate prior to each vote.
Ms. COLLINS. Thank you, Mr. President.
The PRESIDING OFFICER. The Senator from Ohio.
Mr. DeWINE. Mr. President, first, I congratulate Senator Collins and
Senator Lieberman for their very fine work on this bill. Anyone who has
watched this debate has to be very impressed by the work they have done
in, frankly, a relatively short period of time. They have held a number
of hearings. They have diligently worked on this bill and brought the
bill to the floor.
I came to the floor last week and asked my colleague from Maine some
questions. I thought she had some very good answers. As I expressed at
that time--and I have made no secret of this--I have always been
concerned that any bill we produce, in fact, give the head of our
intelligence enough authority, enough power to actually get the job
done. And that was my concern. Frankly, that was the nature of my
questions to my colleague from Maine last week.
I come to the floor this morning to express my concerns about the
Byrd amendment. My reading of the Byrd amendment is, frankly, that it
would strike at the heart of the Collins-Lieberman bill. I believe if
the Byrd amendment were to be adopted, all my worst fears would be
realized, and we would end up with a bill that would look like it was
giving power to this new head of intelligence in this country, but, in
fact, that person would not really have the requisite power they
needed.
I wonder if I may ask my friend and colleague from Maine several
questions about her interpretation of the Byrd amendment.
My understanding is that the Byrd amendment begins, on the copy I
have, on page 27 of the bill and strikes the title ``Transfer or
Reprogramming of Funds and Transfer of Personnel within NIP.''
I wonder if my colleague shares my concerns about the danger of this
amendment. I think, frankly, this is a gutting amendment. I wonder what
her reaction to that is.
The PRESIDING OFFICER. The Senator from Maine.
Ms. COLLINS. Mr. President, if the Senator from Ohio will yield, I
will be happy to respond to his question. The Senator from Ohio is
exactly right. The amendment offered by the Senator from West Virginia
would greatly weaken the authority of the national intelligence
director to move funding and people. That is one of the most important
reforms made by this legislation. That is one reason I am strongly
opposed to the amendment offered by the Senator from West Virginia.
I believe the Senator from Ohio is exactly right, that were the
amendment to pass, it would severely undermine the reforms called for
by the 9/11 Commission to create a NID with real authority. That means
the authority over the budget, over the people in the national
intelligence program, the authority to set priorities, and certainly
the Byrd amendment would greatly weaken that authority.
Mr. DeWINE. I appreciate very much my colleague's response. That is
the way I read this. As I expressed when I was on the floor last week,
really what we need to do is to empower this person, this new position
with the authority to get the job done. Never again do we want to be in
a position where the head of intelligence of this country can come
before the committee and say: I do not have enough power; I do not have
the authority to get the job done; I could not move people around; I
did not have the budget authority.
That, I think, is what my two colleagues who are on the floor right
now have tried to craft with this bill. If you look at this particular
section, it talks about the transfer of people and the transfer of
money, and the ability of that person to be able to do that and to be
the prime mover, the prime person who could do that.
Never again should the head of intelligence in this country really be
subservient to anybody else. Yes, they should consult. Yes, they should
involve other people. But they certainly should be the prime person.
I wonder if I may ask my colleague--I see Senator Lieberman on the
floor--I know some people do have concerns with the way the Senator has
written the bill, that other agencies would not be consulted. With the
way the Senator has written the bill, would the new head of
intelligence consult other agencies and be involved with other agencies
with regard to these very essential decisions?
Mr. LIEBERMAN. Mr. President, through you, I am pleased to respond to
the Senator from Ohio. I thank him for his questions. The direct answer
is that in the proposal Senator Collins and I have put down, the
national intelligence director, in formulating the national
intelligence budget, as distinguished from the military tactical
intelligence joint budget, would be required to consult with the heads
of the relevant intelligence agencies in formulating his budget, but we
make very clear that the budget authority for the national intelligence
budget ought to go to the national intelligence director, both in terms
of final recommendations to the Office of Management and Budget and the
President, but then that the money must come to the national
intelligence director before it goes to those constituent agencies.
That is a critical element of the authority that we want to establish
in the national intelligence director where there is none.
We had repeated testimony before our committee from Secretary Powell,
from former Directors of Central Intelligence that without budget
authority, they are ineffective, they have no clout.
In addition to constricting, as the Senator from Ohio has made clear,
the authority of the national intelligence director under the Collins-
Lieberman proposal to transfer both personnel and funds, the Byrd
amendment does dramatically undercut that budget authority by, if I can
state this to the best of my ability in lay people's language, removing
the authority of the new national intelligence director to have budget
accounts at the Treasury Department, which would mean that the only way
Treasury could transfer money to the national intelligence director was
back through the Department of Defense. That is exactly what we are
trying to change.
Mr. DeWINE. If I may ask an additional question for Senators who are
watching today, maybe the answer is obvious, but what is the importance
of that distinction, the inability to do that, having that money go
through the Defense Department as opposed to the national intelligence
director?
Mr. LIEBERMAN. It is just such a strange circumstance with which I
believe many members of our committee were surprised to find, that the
intelligence budget, including the CIA budget, the Central Intelligence
Agency right now, goes through the Department of Defense before it gets
there. Obviously, the Defense Department is an important user of
intelligence, perhaps the most important, so is the State Department,
the President, and the Homeland Security Department.
The current situation is a little bit--let me see if I can think of
an analogy, and I know this is farfetched--where the budget of the
Securities and Exchange Commission went through the Department of
Health and Human Services. It may be a little farfetched. Maybe it went
through one of the other Departments that is slightly more related. It
makes no sense.
Again, we are trying to create authority here, and authority in this
town, as we kept hearing over and over, is built on money, budget
authority, and this amendment would remove that authority from the
national intelligence director and, therefore, weaken that position. I
fear it would get us back to where we are now, where we do not have
that authority with anyone in the intelligence community and no one is
in charge.
Mr. DeWINE. I wonder if I may ask my colleague another question. As
one looks at the language throughout the bill that Senator Collins and
Senator Lieberman have crafted, they have made a distinction between
the national intelligence programs and the nonnational intelligence
programs, given certainly the authority over the national intelligence
programs and what they described as far as the budget authority,
execution authority over
[[Page S10298]]
those to the national intelligence director.
The other programs that are not national intelligence programs
continue to remain, then, with other departments--for example, the
Defense Department--is that correct?
Mr. LIEBERMAN. I am sorry? I missed the question.
Mr. DeWINE. The other programs that are not national intelligence
programs would not come under, then, the national intelligence
director?
Mr. LIEBERMAN. That is correct. We tried to draw some lines. They are
not always clear because there are a lot of programs that overlap, but
to say that anything in the national intelligence budget should go to
the national intelligence director, that is his or her job. There are
other programs that are uniquely the work of the Defense Department--I
am going to put it another way: that are totally used by the Defense
Department for tactical intelligence to support the work of one service
of the military or a joint military action. But those assets are not
used for anything else in our intelligence community nonmilitary and,
of course, they should go for budget control to the Secretary of
Defense.
Mr. DeWINE. That is the way the Senator's bill is written?
Mr. LIEBERMAN. Absolutely. We preserve that. There are one or two
amendments that are seeking still to clarify that break that we will
debate and vote on I would guess before this bill is finally
considered, but that is exactly what we have done in the underlying
bill.
Mr. DeWINE. When I came to the Senate floor last week, I was asking
questions of both the Senator from Connecticut and my colleague from
Maine, and I was happy to hear some of the answers about the Senator's
understanding of this bill that has been drafted, but I am concerned
that under the amendment from our colleague from West Virginia, these
powers would be gone. For example, I asked about the ability to move
personnel around, and the Senator assured me under his bill the
national intelligence director would be able to move personnel around
from one department to another as long as it was a national
intelligence program. Is it the Senator's understanding under the
amendment from our colleague from West Virginia that power would be
gone?
Mr. LIEBERMAN. I say through the Chair, that power would be seriously
limited, which is to say the personnel transfers under the amendment
would have to be done in accordance with procedures to be developed by
the national intelligence director with the concerned department head
and only for periods up to 1 year, and that is a constriction that says
to the national intelligence director: You do not have the latitude to
do what you think is necessary to protect the national security
interests. This is a little bit like saying to a general: You can only
make a decision for a short period of time in moving your troops around
to better confront the enemy and achieve victory. It makes no sense. It
is a critical part of the overall proposal of our bill and the 9/11
Commission.
If the Senator from Ohio would give me a moment, this morning, the
Family Steering Committee composed of families of victims of 9/11 sent
a letter to every Senator commenting on some of these amendments. With
regard to this amendment introduced by the Senator from West Virginia,
No. 3845, they say that the 9/11 Commission has stated repeatedly that
the power of the purse is critical for the national intelligence
director position. S. 2845, the underlying bill, provides for the
national intelligence director to be empowered with budget execution
and transfer authorities. The NID also needs to be able to transfer
personnel in response to threats, which is what the Senator's question
goes to. So the families conclude: In summary, we oppose amendment No.
3845 introduced by the Senator from West Virginia and others because it
reduces the authority of the national intelligence director.
I thank the Senator.
The PRESIDING OFFICER. The Senator from Maine.
Ms. COLLINS. Mr. President, if the Senator from Ohio would yield on
that point.
Mr. DeWINE. I sure will.
Ms. COLLINS. The amendment offered by our colleague from West
Virginia would actually give the national intelligence director less
authority than the DCI has under current law to move people and money
around to address urgent needs. It not only would undo the reforms in
our bill, it is a step back from current law.
Under the Byrd amendment, aggregate transfers from a department or
agency would be limited to $100 million or 5 percent of the funds
available to the department or the agency. There is no such limitation
in current law. The amendment offered by the Senator from West Virginia
not only undermines the reforms in this bill and significantly would
weaken the authority of the NID to move people and money to meet urgent
compelling needs, but it actually is weaker than the authority that the
Director of the CIA now has. I just wanted to make that point. I know
the Senator from Ohio is aware of that as well.
Mr. DeWINE. I thank my colleague for her answer, and that is
something that should alarm all the Members of the Senate. I believe
there is a general consensus--certainly there is in the intelligence
community, a general consensus at least, and I think there is among
Members of the Senate--that the power of the DCI today is not enough,
and to think that we would be thinking about passing a bill that would
pass with this amendment possibly that would weaken the head of our
intelligence agencies and give that person less power to me is a
shocking thought.
I believe our whole goal should, in a very responsible, rational way,
create a new system, which this bill has done, to empower one person to
have the authority to run the intelligence in this country. I am
afraid, as this discussion has pointed out between my colleagues and
myself, that the Byrd amendment will take us actually in the wrong
direction. It is a weakening amendment. At least for this Member, it is
a gutting amendment. It, frankly, would make it impossible for me to
vote for this bill. It would destroy the power of the head of
intelligence, this new position, and it would be the wrong thing to do.
It is very well intended, but it would be a very serious mistake. This
discussion we just had certainly brings that out.
Again, I want to congratulate my colleagues. They have done a very
good job in trying to deal with all of the diverse needs we have in the
intelligence community, the Defense Department, and all the other
agencies. It has been a very tough job, and I congratulate them for
their work.
I yield the floor.
The PRESIDING OFFICER. The Senator from Connecticut.
Mr. LIEBERMAN. Mr. President, I rise to thank our friend and
colleague from Ohio for both his thoughtful consideration of this
legislation and his very relevant questions this morning, which I do
believe help to illuminate the consequences on one of the amendments we
are going to vote on today.
Last week, the Senator was here in a less friendly posture. It is
always better to have him on our side, and I thank him very much for
caring enough about this critically important legislation to come over
and be part of this debate.
I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. BYRD. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER (Mr. Roberts). Without objection, it is so
ordered.
The Senator from West Virginia is recognized.
Amendment No. 3845
Mr. BYRD. Mr. President, in a few hours the Senate will vote on the
Byrd-Stevens-Inouye-Warner amendment. That amendment's purpose is to
ensure that the new national intelligence authority is held accountable
to the people's representatives in the Congress. Let me say again, the
amendment which I have offered on behalf of myself and Mr. Stevens, Mr.
Inouye, and Mr. Warner has a purpose, that purpose being to ensure that
the new national intelligence authority, the NID, is held accountable
to the people's representatives in the Congress.
Last Friday, I spoke about the Englishmen who spilled their blood to
wrest the power of the purse away from
[[Page S10299]]
monarchs, over many centuries, in England. Their struggle was enshrined
in Article I, section 9 of the U.S. Constitution, which I hold in my
hand, the Constitution of the United States--the struggle of Englishmen
across many centuries, even prior to 1215 when the barons yielded, the
great Magna Carta was agreed to by King John, a mighty monarch. And
what does that section 9 of Article I say?
No money shall be drawn from the Treasury, but in
Consequence of Appropriations made by Law; and a regular
Statement and Account of the Receipts and Expenditures of all
public Money shall be published from time to time.
Not just some of the moneys, all of the moneys. How then, I ask
Senators, can a regular account of public money be kept if the Congress
empowers a new intelligence director to spend money without regard to
appropriations law and without regard to this Constitution?
This is a debate about power. Make no mistake about it. It is a
debate about power and who should wield it--the elected representatives
of the people or an unelected, unaccountable bureaucrat nestled deep
inside our Nation's intelligence agencies.
It goes to the heart of the balance of power between the executive
and the legislative branches of Government. I took an oath to support
and defend that Constitution, and I have tried to do that now, I will
soon be in my 59th year in government, in politics, in the legislative
branches of Government--at the State level and at the national level.
Under the pending bill, the Treasury Secretary is authorized to
create appropriations accounts to which the national intelligence
director can transfer funds. Get that. We are talking about an
unelected bureaucrat who will be able to transfer funds. The Collins-
Lieberman bill includes no limits on how those funds can be used.
Let me say, I don't see either of the two managers on the floor but
they are listening. I saw Senator Lieberman just a few minutes ago. I
am sure he is in the premises here. One of the distinguished persons
who is aiding the Governmental Affairs Committee in this connection has
nodded in the affirmative. So I am not talking behind Senator
Lieberman's back. He is here. He knows very well what I am saying, and
I am sure he will be very ready to counter my arguments. I respect him
for that.
Let me say again, under the pending bill, the Treasury Secretary is
authorized to create appropriations accounts to which the national
intelligence director can transfer funds. The Collins-Lieberman bill
includes no limits on how those funds can be used once they are
transferred. Under current law, the intelligence director would be
authorized to transfer up to $3.5 billion from the defense budget,
giving this director enormous transfer authority never contemplated by
the Congress.
That places the Congress on the defensive. The Congress would have to
act retroactively to transfers made by the national intelligence
director, allowing the intelligence director to spend funds without
adequate oversight by the Congress.
I remind Senators that in 1996, the National Reconnaissance Office--
the Government's spy satellite agency--was discovered to have stashed
away billions of dollars into a reserve that was not reported to the
Congress. While the proponents of the bill before the Senate argue that
the national intelligence director needs strong budget authority to
fight the war on terror, Senators should understand that the
intelligence director can use that authority for activities that have
nothing to do with the war on terror. The intelligence director could
use this sweeping transfer authority to circumvent the limitations
imposed by the Congress, the elected representatives of the American
people. It has happened before, and it will happen again. It can happen
again and very likely it will happen again.
Senators Collins and Lieberman have argued that our mandate here
today is to implement the 9/11 Commission recommendations and that
those recommendations include an intelligence director with strong
budget authority. I respectfully submit that our mandate as Senators--
my mandate, at least, as a Senator--first and foremost is to protect
and defend the Constitution of the United States.
We took an oath to do so, and that mandate supersedes any
recommendations put forward by any commission, including the 9/11
Commission. To provide virtually unchecked flexibility to an
intelligence director to transfer funds from one account to another
would nullify and make meaningless the legislative process of reviewing
budget requests from the intelligence agencies. It would nullify and
make meaningless congressional decisions about how funds are allocated.
Congressional judgment by elected lawmakers--I am elected; I am one
of the elected lawmakers. From time to time I have to go back before
the people and see if they want me to continue in this work.
Congressional judgment by elected lawmakers would be made subordinate
to executive judgments by unelected bureaucrats.
The power of the purse for which our English ancestors spilled their
blood and which has protected our democratic institutions and
individual rights for centuries would, in a very large measure, pass to
the executive branch.
I am saying, in essence, that we need more time to discuss this
amendment and to discuss this bill. I don't know what is in the bill. I
have read parts of the bill, but I have many other duties to perform,
and I think we need more time. This is a major bill. This is the very
same thing we ran into when we created the Department of Homeland
Security--the very same thing. We are backed up against the wall. The
idea is you have to pass this. You have to do it. You have to get
behind it. And we find we have a lot of problems with that.
I sought to have the leadership take a little more time on that bill,
discuss it, debate it, but the leadership didn't choose to take more
time.
It was the very same way with the nefarious resolution that was
passed by this Senate on October 11 of 2002 to shift the constitutional
power to declare war to a single individual; namely, the President of
the United States. I pleaded that we have more time. I pleaded on that
same occasion--I think it was with Mr. Lieberman and with the other
managers on both sides--please take more time.
Here we are shifting the power. Congress says in article I, section
8, that the Congress shall have the power to declare war. So the
Framers of the Constitution did not intend for one man to be able to
declare war. The Framers of the Constitution did not intend for one
body to put this Nation into a war. It required both bodies. The
Constitution says Congress--not just the Senate, not just the House--
Congress, which is a combination of both, Congress shall have power to
declare war. So the Framers meant for that very great question to be
decided by a huge body of men. It was men in those days, only men in
the Congress of the United States; but, of course, we know what
``Congress'' meant--for anybody who serves. It is Congress made up of
the elected representatives of the American people. So I have a mandate
to listen to the American people. I have a mandate to exercise whatever
judgment I have and can bring to bear in my own way to look at these
things and to ask questions.
So there we were. We passed it in a big hurry. The leadership on both
sides said: Let's get this behind us. I am talking about the resolution
that was passed by the U.S. Senate on October 11, 2002, shifting the
power, shifting the decision to put this country at war, shifting that
decision away from the Congress and handing it over lock, stock, and
barrel to one man--the President of the United States. It does not make
any difference if he is a Democrat or a Republican, that power is his
and will be in the next President's hand. He will have that power, and
the next one, if he or she decides to use it. It will be there for them
because there is no sunset provision in that resolution terminating
that power.
I sought even to have the Congress adopt an amendment which would
have provided for a sunset provision in that power so that within a
year or at most 2 years--and the circumstances were set forth in my
amendment calling for a sunset provision, a termination of handing this
power over to any President, Republican or Democrat. Do you know how
many votes I got? Well, I got 31 votes, including my own.
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I yet am astonished to this very day as to why the Members of the
Senate of the United States sought not only to give that power to a
President, one man--whether he is Democrat or Republican, that is not
the point--shift that power to a President. I said: If we are going to
be foolish enough to do that, let's at least have a sunset provision so
we can terminate that power. But no, I got 31 votes, including my own--
31 votes. What a shame that this Senate and the House would give that
power to an individual and say: It's yours, take it, keep it until we
in the Congress decide to repeal that provision and take it back. How
about that. So the sunset provision was turned down.
I asked for more time. Oh, the leadership said: Let's get this behind
us. The President said: Get it behind you; we have an election coming.
That was the manipulation that was wrought to have that key vote occur
just a few days before the national elections in the year 2002.
Why, those Members who were up for reelection, as they voted on that
resolution, they certainly thought: If I vote against this, what is it
going to do to me and my reelection? People might think I am
unpatriotic; I better vote for this; man, I have to be reelected; I
have to be reelected; I am going to vote for it; I have some questions
about it, but I am going to put all questions aside because we have an
election coming here. The leadership said: Put it behind us; let's vote
on it, get it behind us.
I said at the time: You will not get this behind you because this
President is not going to let you get it behind you. It is in his favor
to make you vote before the election. You might vote differently after
the election. No, you have to vote before the election. There we were.
We did not have time. I pleaded for time, time, wait until after the
election, let's wait to hear what the people have to say.
Here again, we are pressed for time. We are going to go out on I
believe it is October 8 presumably for the elections, at least until
they are over, so we are in a hurry. Let's not wait until after the
election; no, let's get this behind us. We have to do what the
Commission says. What about the Constitution? We are legislating in a
tremendous hurry, and that is not good.
Former Secretary of State Henry Kissinger in his appearance before
the Appropriations Committee said that ought to be put off. You need, I
believe he said, 6 or 8 months. I am not sure I am quoting him
precisely. In essence, that was his message: Put it off; don't do it in
a time before an election; don't do it under the heat that is
generated; take your time; this is a measured, measured decision, don't
rush it through. Former Secretary of State Henry Kissinger showed the
committee the names of several other very important dignitaries who, by
their experience, see the reasoning all joined in the suggestion that
we take our time. But no, we are brushing that aside, and that was the
decision on the part of former Secretaries of Defense--for example, Mr.
Cohen. It included both Republicans and Democrats urging that we take
more time. I think we should take more time here because we are doing
some dangerous things in this bill.
My amendment will keep the power of the purse where it belongs, not
in the hands of the intelligence community but here in the hands of the
people's elected representatives in the Congress. My amendment retains
for the Congress the responsibility for deciding how budget accounts
for the intelligence director should be structured while allowing the
flexibility the Governmental Affairs Committee seeks for the transfer
of personnel and funding within the intelligence community. My
amendment is an oversight amendment. It guarantees better oversight
over the way these funds are going to be spent.
Normally, when we pass an appropriation, we say to Mr. A, who is head
of one agency: Here, you take this and you do this, and you do this,
and you do this, and you do this, and then come back in a year and tell
us what you did; come back in here tell us what you did with our
limitations to do this, do this, but don't do this, don't do this.
Under those limitations the agency assures Congress he will live up to
the mandate, he will do this, he will do this, and he will not do this
that Congress said don't do.
Well, that is not going to be the case. This national intelligence
director will do whatever he wants to do, and then there will not be
those limitations, either, on him or her. He is not going to be
elected. He is going to be another bureaucrat--and I do not mean to
speak in any derogatory manner concerning bureaucrats because we have
to have them--but they are not elected by the people.
All these seats--these chairs, as I call them--were here many years
before I came, and they are filled with Members who are elected by the
people of their respective States. We have to answer to those people.
This amendment limits the transfer of funds to $100 million or to 5
percent of the Department or Agency budget, whichever is the lesser.
Senators should realize that even with the limitations included in this
amendment, the intelligence director is granted significant authority
to transfer funds. He would still have significant authority. Given the
history, though, of abuses of power and the violation of civil
liberties that have taken place within our intelligence community, I
cannot imagine Senators condoning such sweeping budget transfer
authority.
Hear me, Senators. We should take time. We are talking about rushing
through a massive change, one which will have some bearing upon this
Constitution which we are sworn to support and defend, and yet we are
going to do it with our ears closed, our eyes closed, and our voices
unheard.
We are being pressured to act fast before we go home on October 8. I
cannot imagine Senators condoning such sweeping budget transfer
authority. Common sense and history suggest that if one man is given
control of our intelligence agencies and one man is given control over
funds appropriated to those agencies, abuses can occur, may occur, and
in all probability will occur at some point in time. Those abuses may
manifest themselves in the violations of civil liberties, your
liberties. They may manifest themselves in scandals such as those at
Abu Ghraib prison, or they may manifest themselves as they did in the
lead-up to the war in Iraq through politicized intelligence. Therein
lies a great danger.
The New York Times, on Sunday, wrote a very lengthy article--read
it--entitled, ``How the White House Embraced Disputed Arms
Intelligence.''
I ask unanimous consent that the article from the New York Times be
reprinted in the Record at the close of my remarks.
The PRESIDING OFFICER (Mr. Cochran). Without objection, it is so
ordered.
(See exhibit 1.)
Mr. BYRD. Mr. President, the article explores how senior
administration officials, including President Bush and Vice President
Cheney, ``repeatedly failed to fully disclose the contrary views of
America's leading nuclear scientists'' when asserting in 2002 that
Saddam Hussein was rebuilding his nuclear weapons program. The article
reads:
They sometimes overstated even the most dire intelligence
assessments . . .
It goes on to say:
yet minimized or rejected strong doubts of nuclear experts.
The article goes on:
Today, 18 months after the invasion of Iraq, investigators
there have found no evidence of . . . a revived nuclear
weapons program.
Secretary of State Colin Powell said last Friday he regretted the
administration's claims that Iraq had stockpiles of weapons of mass
destruction in making its case for war.
So the gut-wrenching question for the Senator from Maine is--hear
me--if we do this intelligence reorganization hurriedly, are we willing
to launch our next preemptive war based on the presumption that our
handiwork has corrected our intelligence problems? That is a very
serious question.
I will say it again: The gut-wrenching question for you, Robert C.
Byrd, and for every other Member of the Senate, remains: if we do this
intelligence reorganization hurriedly, as we are doing, are we willing
to launch our next preemptive war based on the presumption that our
handiwork has corrected our intelligence problems?
Think about it. That should sober one up. The question remains, and
we
[[Page S10301]]
are going to be held to it by the American people and by that
Constitution: If we do this intelligence reorganization hurriedly, are
we willing to launch our next preemptive war based on the presumption
that our handiwork has corrected our intelligence problems?
I say to Senators, again, preemptive attack is the official policy of
this Government. Preemptive attack today, under the Bush
administration, is the official policy of this Government.
Remember also that preemption is totally antithetical to the U.S.
Constitution because it clearly cuts the Congress out of decisions to
go to war. Preemption by its very nature precludes congressional
debates or approval of resolutions before commencing to shed the blood
of our sons and our daughters. Preemption stands on its face
antithetical, opposite, 180 degrees, to this Constitution, which says
that the Congress shall have power to declare war; the Congress,
meaning a group of people, two bodies, made up of men and women
representing all of the States of this Union. Congress shall declare
war, not one man. But the doctrine of preemption tells us the
President--the President, not the Congress--the President shall have
power to declare war. That is the preemptive doctrine. That great power
may send your son, your daughter, your grandson, your granddaughter to
war. Who says so? One man, the President of the United States.
So on its face it is unconstitutional. How can a President declare
war without doing it clandestinely, secretly? If he wants to bomb a
certain country, he is not going to take it up with the Congress. He
wants to be secret about this because that strike has to be preemptive.
How can it be preemptive if it is going to be debated by the Members of
the United States Senate? It can't be preemptive.
Let us remember that intelligence--remember, this is not just Robert
Byrd saying this--let us remember that the intelligence was manipulated
to get us into the Iraq war. Will it not be more easily manipulated in
the hands of one intelligence chief, a partisan chief more free than
ever to tweak intelligence to please a President? It may be a
Democratic President. Does that make it any better? No. That makes no
difference.
It is comforting to believe that our intelligence agencies will not
be manipulated for political gain, but it is also naive to believe
that. To turn over to a greater degree the power of the purse to
shadowy figures in the intelligence community is to invite abuses like
those that lead to scandal and to the disgrace of the United States in
the eyes of the international community.
Think of what we are doing here. It is just like it was when we had
that resolution before the Senate on which the Senate voted on October
11, 2002. There is not another Senator on this floor, except the
distinguished Senator from Mississippi, Mr. Cochran, who is presently
presiding over this body, and myself, two Senators. A major question is
before the Senate. We are talking about your oversight duties as a
Member of the Senate, as you chair or as you serve on a committee--your
oversight; the oversight powers of the Congress, provided for in the
Constitution of the United States. Yet we are saying, Well, forget it.
The Congress must preserve its power to rein in--not just because it
can but because the people expect it of the Congress--our Nation's
intelligence agencies and to rein in the executive branch when abuses
like these occur.
Further, we must do all we can to ensure that the new intelligence
positions created by the Collins-Lieberman bill are held accountable to
the Congress; in other words, to the people. This Constitution, in its
first three words, says, ``We the people . . . .'' So we have a
responsibility. We have a duty to the people we represent to see that
these people are held accountable to the Congress.
On page 47, the pending bill creates four deputy national
intelligence director positions as executive level 2 appointments, the
equivalent of a Deputy Secretary of Defense or State. Yet none of these
new positions is subject to Senate confirmation. How about that? The
Congressional Research Service informs me that these deputy
intelligence directors would be--listen to this--the only executive
level 2 appointments in our Government not subject to confirmation by
the Senate. There you have it. These people are going to have
tremendous responsibilities, but I am informed that these deputy
intelligence directors would be the only executive level 2 appointments
in our Government not subject to Senate confirmation.
So it is clear that more needs to be done to ensure accountability to
the Congress. How much thought was given to this in the distinguished
committee? How much thought was given to this in the Commission that
recommends to the Congress these reforms? These clearly mean that more
needs to be done to ensure accountability to the Congress. The
intelligence failures of 9/11 and the intelligence failures in Iraq are
in part a testament to the dire consequences of the Congress abdicating
its constitutional duties. The Congress was rushed, as it oftentimes
is--rushed, pressured--could be pressured by circumstances only, but
that is not quite the case. Congress was rushed into creating a
homeland security department, and, in the process, it ceded authorities
to the executive branch over organization and personnel matters. The
result has been an underfunded homeland security agency whose
effectiveness has been compromised, to some extent, by turf wars and
bureaucratic resistance.
So we rushed consideration of the war resolution with Iraq, and in
the process ceded the constitutional authority to declare war to the
White House. The result has been a rush to war marked by foreign policy
failures and scandals, with the death toll rising daily and with no end
in sight to the chaos in Iraq.
What a pickle. What a pickle we have put ourselves in. Now the
Congress is confronted with an intelligence reform bill, proposing to
create a national intelligence director who will command 15
intelligence agencies and a $40 billion budget. Rather than learn from
our mistakes, rather than take the time to thoughtfully consider this
matter outside of Presidential politics, we are being pushed to finish
this bill within a handful of days, finish this bill within a shirt-
tail full of days, and to cede control over the allocation of the
resources to the intelligence community.
Think about it. Think what you are doing. Think what you are about to
do, Senators. National security experts are pleading with the Congress
to stop for a minute. Hold on, here. Hold on, they say. Stop for a
minute to think about what it is doing.
The Appropriations Committee heard from a bipartisan array of
witnesses urging the Congress to slow down.
What is the hurry? What is the hurry?
The list is impressive. These men are not Members of the Congress.
Listen to them, though. They are saying, slow down. David Boren, former
Senator from the State of Oklahoma, former chairman of the Intelligence
Committee in the Senate.
Here is another former Senator, Bill Bradley, saying let's slow down
here. Slow down. Where is the hurry? Frank Carlucci, former Secretary
of Defense under President Reagan. Here is a more recent Secretary of
Defense, former Member of this body, a Republican, William Cohen.
Robert Gates, Gary Hart, former U.S. Senator; Henry Kissinger, former
Secretary of State; John Hamre.
In the case of some of these, their titles have momentarily escaped
me.
Sam Nunn, former Senator from the State of Georgia and chairman of
the Senate Armed Services Committee;
Warren Rudman, Republican, former Senator from New Hampshire; George
Shultz, former Secretary of State, Republican--there you have it, an
impressive roster of Republicans and Democrats who rendered great
service to this country in one form or another. They are saying slow
down. What is the hurry? What is the hurry? They are former Senators,
former Department of Defense Secretaries, former Secretaries of State,
Republicans and Democrats, all making the same plea: ``Racing to
implement reforms on an election timetable is precisely the wrong thing
to do.''
That is not Robert Byrd saying that. Robert Byrd is quoting these
luminaries, and Robert Byrd feels the same way they do.
``Racing to implement reforms on an election timetable is precisely
the wrong thing to do. Intelligence reform
[[Page S10302]]
is too complex and too important to undertake at a campaign breakneck
speed.''
They are saying this subject matter deserves a thoughtful,
comprehensive approach. Why in Heaven's name are we in all of this big
hurry? Why is there all of this hurry? I am not saying there shouldn't
be reform. I am not saying that at all. I am saying this is a major
undertaking and we ought to have the time and we ought to take time to
debate and ask questions and to try to remove the gremlins that may
come to light if we take more time.
The Wall Street Journal concluded in August that:
The larger point here is that there is no need to rush to
any quick political fix.
We may have a different President after the election. He may
appoint--and probably would--a national intelligence director who will
be a different person from that whom the current President may appoint,
should he be reelected. We ought not to do this in such a big hurry.
The Wall Street Journal continues:
We are contemplating the biggest change to our intelligence
services since 1947, while we are fighting a war against a
lethal enemy . . .
a war that in large measure has resulted from faulty intelligence.
Are we fixing that fault in this bill? Are we dealing with 9/11 in
this bill without casting a watchful eye to the future, to Iraq? How
about it?
That work should take some time--and beltway forbid, maybe
even a little thought.
That is a quotation from the Wall Street Journal of the month of
August.
The case for stopping and thinking for a moment grows even stronger
when one reads U.S. Circuit Court Judge Richard Posner's critique of
the 9/11 Commission's report in the New York Times Book Review. Judge
Posner writes:
The enormous public relations effort that the commission
orchestrated to win support for the report before it could be
digested . . . invites criticism . . . [as does] the
commissioners' misplaced, though successful, quest for
unanimity. . . . The Commission's contention that our
intelligence structure is unsound predisposed it to blame the
structure for the failure of the 9/11 attacks, whether it did
or not. And pressure for unanimity encourages just the kind
of herd thinking now being blamed for that other recent
intelligence failure--the belief that Saddam Hussein
possessed weapons of mass destruction. . . . For all one
knows, the price of unanimity was adopting recommendations
that were the second choice [or maybe even the third or
fourth choice] of many of the commission's members. . . .
The larger concern is not only that the Congress, in its rush to act,
may botch the implementation of the 9/11 Commission's recommendation,
but that those recommendations may not be as well-thought-out as the
public relations campaign would have us believe.
We are so threatened by the politics surrounding the 9/11
Commission's report and the release of its recommendations prior to the
Presidential election that we stand ready--stand, salute--to abdicate
our constitutional responsibilities rather than to question or probe
deeper into the potential flaws of the Commission's recommendations.
I say again it is the same kind of thinking that occurred prior to
the vote on the war resolution with Iraq, the same mentality that led
to the much regretted passage of the PATRIOT Act with only a single
dissenting vote in this Chamber, and that led to the creation of a
Homeland Security Department that now struggles with its mission to
make Americans safer from terrorism.
I urge Senators, I plead with Senators, I beg Senators to consider
carefully their vote on this amendment.
I am sure there are many Senators who have regretted and will regret
to their dying day their decision to vote for the Iraq resolution that
was passed by this body on October 11, 2002. I am sure many Senators
have lived to regret that vote because we were being pressured: Hurry,
hurry, hurry, get this vote behind us. We don't want to talk more about
this. We want to talk about the economy. They will regret it. I have
had Senators tell me they regret it.
I urge Senators to consider carefully their vote on this amendment.
Also, consider this Constitution and the oath I have taken this many
times to support and defend the Constitution of the United States. This
Constitution provides for adequate oversight. It gives the Congress the
power, the oversight.
This bill will, to a considerable extent, take away that power. I am
not seeking to undermine the intelligence reforms proposed by the
Governmental Affairs Committee. I seek only to ensure that the Congress
retain its oversight functions in intelligence and national security
matters. We owe it to the people who had faith and confidence in us and
who sent us here.
We are not elected here, sent here, by any President of the United
States. No President tapped me on the shoulder and said, go get him,
boy, I am going to see that you get it. No President can do that. No
President can tap me on the shoulder and say: Boy, you are gone; you
won't be back after this election. No, no President can say that, thank
God. No President is king in this country. Not here, no. We did not
swear an oath to adopt any particular commission's report.
We should use our own best judgment in this case, and in doing that
we will arrive at different signals, of course, but that is our
responsibility. We owe it to the victims of the September 11 attack and
their families to get these reforms straight and to take time to study
and debate them. Why not take more time? It would be a sad legacy if
the suffering of these victims of the September 11 attack, it would be
a sad legacy if their suffering and loss resulted not in the
strengthening but in the weakening of our national security and
intelligence service, leaving more Americans vulnerable to a terrorist
attack.
In summary, it is a critical mistake to hand to an unelected
intelligence chief nearly unfettered budget transfer authority. We are
handing off the ability to exercise oversight. When we do that, we
cannot determine whether congressional intent for the people's tax
dollars has been met. We will not know about transfers until some time,
perhaps, after the fact. Millions of dollars--nay, billions of
dollars--could be moved around at the discretion of one man, an
unelected figure, with no one the wiser. Resources could be switched
from one area of the world to another area of the globe at the
discretion of one man. Secret operations could be funded without the
prior knowledge of any Member of Congress at the discretion of one man.
This is one-man rule. Intelligence could be manipulated by one man,
with discretion concerning where to take away secret resources and
where to add them.
Absolute power, Senators just heard, corrupts absolutely, and the
United States is about to aid and abet that truism.
Senators, Republicans and Democrats, we will rue the day when,
because of rushing and posturing and hurrying, we created a spy chief
with such awesome power.
I ask unanimous consent to add the names of Senator Leahy, Senator
Dorgan, and Senator Burns as cosponsors.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. BYRD. May the record show that John Hamre is a former Deputy
Defense Secretary and Robert Gates is a former CIA Director.
[From the New York Times, Oct. 3, 2004]
How the White House Embraced Disputed Arms Intelligence
(By David Barstow, William J. Broad and Jeff Gerth)
In 2002, at a crucial juncture on the path to war, senior
members of the Bush administration gave a series of speeches
and interviews in which they asserted that Saddam Hussein was
rebuilding his nuclear weapons program. Speaking to a group
of Wyoming Republicans in September, Vice President Dick
Cheney said the United States now had ``irrefutable
evidence''--thousands of tubes made of high-strength
aluminum, tubes that the Bush administration said were
destined for clandestine Iraqi uranium centrifuges, before
some were seized at the behest of the United States.
Those tubes became a critical exhibit in the
administration's brief against Iraq. As the only physical
evidence the United States could brandish of Mr. Hussein's
revived nuclear ambitions, they gave credibility to the
apocalyptic imagery invoked by President Bush and his
advisers. The tubes were ``only really suited for nuclear
weapons programs,'' Condoleezza Rice, the president's
national security adviser, explained on CNN on Sept. 8, 2002.
``We don't want the smoking gun to be a mushroom cloud.''
But almost a year before, Ms. Rice's staff had been told
that the government's foremost nuclear experts seriously
doubted that
[[Page S10303]]
the tubes were for nuclear weapons, according to four
officials at the Central Intelligence Agency and two senior
administration officials, all of whom spoke on condition of
anonymity. The experts, at the Energy Department, believed
the tubes were likely intended for small artillery rockets.
The White House, though, embraced the disputed theory that
the tubes were for nuclear centrifuges, an idea first
championed in April 2001 by a junior analyst at the C.I.A.
Senior nuclear scientists considered that notion implausible,
yet in the months after
9/11, as the administration built a case for confronting
Iraq, the centrifuge theory gained currency as it rose to the
top of the government.
Senior administration officials repeatedly failed to fully
disclose the contrary views of America's leading nuclear
scientists, an examination by The New York Times has found.
They sometimes overstated even the most dire intelligence
assessments of the tubes, yet minimized or rejected the
strong doubts of nuclear experts. They worried privately that
the nuclear case was weak, but expressed sober certitude in
public.
One result was a largely one-sided presentation to the
public that did not convey the depth of evidence and argument
against the administration's most tangible proof of a revived
nuclear weapons program in Iraq.
Today, 18 months after invasion of Iraq, investigators
there have found no evidence of hidden centrifuges or a
revived nuclear weapons program. The absence of
unconventional weapons in Iraq is now widely seen as evidence
of a profound intelligence failure, of an intelligence
community blinded by ``group think,'' false assumptions and
unreliable human sources.
Yet the tale of the tubes, pieced together through records
and interviews with senior intelligence officers, nuclear
experts, administration officials and Congressional
investigators, reveals a different failure.
Far from ``group think,'' American nuclear and intelligence
experts argued bitterly over the tubes. A ``holy war'' is how
one Congressional investigator described it. But if the
opinions of the nuclear experts were seemingly disregarded at
every turn, an overwhelming momentum gathered behind the
C.I.A. assessment. It was a momentum built on a pattern of
haste, secrecy, ambiguity, bureaucratic maneuver and a
persistent failure in the Bush administration and among both
Republicans and Democrats in Congress to ask hard questions.
Precisely how knowledge of the intelligence dispute
traveled through the upper reaches of the administration is
unclear. Ms. Rice knew about the debate before her Sept. 2002
CNN appearance, but only learned of the alternative rocket
theory of the tubes soon afterward, according to two senior
administration officials. President Bush learned of the
debate at roughly the same time, a senior administration
official said.
Last week, when asked about the tubes, administration
officials said they relied on repeated assurances by George
J. Tenet, then the director of central intelligence, that the
tubes were in fact for centrifuges. They also noted that the
intelligence community, including the Energy Department,
largely agreed that Mr. Hussein has revived his nuclear
program.
``These judgments sometimes require members of the
intelligence community to make tough assessments about
competing interpretations of facts,'' said Sean McCormack, a
spokesman for the president.
Mr. Tenet declined to be interviewed. But in a statement,
he said he ``made it clear'' to the White House ``that the
case for a possible nuclear program in Iraq was weaker than
that for chemical and biological weapons.'' Regarding the
tubes, Mr. Tenet said ``alternative views were shared'' with
the administration after the intelligence community drafted a
new National Intelligence Estimate in late September 2002.
The tubes episode is a case study of the intersection
between the politics of pre-emption and the inherent
ambiguity of intelligence. The tubes represented a scientific
puzzle and rival camps of experts clashed over the tiniest
technical details in secure rooms in Washington, London and
Vienna. The stakes were high, and they knew it.
So did a powerful vice president who saw in 9/11 horrifying
confirmation of his long-held belief that the United States
too often naively underestimates the cunning and ruthlessness
of its foes.
``We have a tendency--I don't know if it's part of the
American character--to say, `Well sit down and we'll evaluate
the evidence, we'll draw a conclusion,' '' Mr. Cheney said as
he discussed the tubes in September 2002 on the NBC News
program ``Meet the Press.''
``But we always think in terms that we've got all the
evidence,'' he said. ``Here, we don't have all the evidence.
We have 10 percent, 20 percent, 30 percent. We don't know how
much. We know we have a part of the picture. And that part of
the picture tells us that he is, in fact, actively and
aggressively seeking to acquire nuclear weapons.''
joe raises the tube issue
Throughout the 1990's, United States intelligence agencies
were deeply preoccupied with the status of Iraq's nuclear
weapons program, and with good reason.
After the Persian Gulf war in 1991, arms inspectors
discovered that Iraq had been far closer to building an
atomic bomb than even the worst-case estimates had
envisioned. And no one believed that Saddam Hussein had
abandoned his nuclear ambitions. To the contrary, in one
secret assessment after another, the agencies concluded that
Iraq was conducting low-level theoretical research and
quietly plotting to resume work on nuclear weapons.
But at the start of the Bush administration, the
intelligence agencies also agreed that Iraq had not in fact
resumed its nuclear weapons program. Iraq's nuclear
infrastructure, they concluded, had been dismantled by
sanctions and inspections. In short, Mr. Hussein's nuclear
ambitions appeared to have been contained.
Then Iraq started shopping for tubes.
According to a 511-page report on flawed prewar
intelligence by the Senate Intelligence Committee, the
agencies learned in early 2001 of a plan by Iraq to buy
60,000 high-strength aluminum tubes from Hong Kong.
The tubes were made from 7075-T6 aluminum, an extremely
hard alloy that made them potentially suitable as rotors in a
uranium centrifuge. Properly designed, such tubes are strong
enough to spin at the terrific speeds needed to convert
uranium gas into enriched uranium, an essential ingredient of
an atomic bomb. For this reason, international rules
prohibited Iraq from importing certain sizes of 7075-T6
aluminum tubes; it was also why a new C.I.A. analyst named
Joe quickly sounded the alarm.
At the C.I.A.'s request, The Times agreed to use only Joe's
first name; the agency said publishing his full name could
hinder his ability to operate overseas.
Joe graduated from the University of Kentucky in the late
1970's with a bachelor's degree in mechanical engineering,
then joined the Goodyear Atomic Corporation, which dispatched
him to Oak Ridge, Tenn., a federal complex that specializes
in uranium and national security research.
Joe went to work on a new generation of centrifuges. Many
European models stood no more than 10 feet tall. The American
centrifuges loomed 40 feet high, and Joe's job was to learn
how to test and operate them. But when the project was
canceled in 1985, Joe spent the next decade performing hazard
analyses for nuclear reactors, gaseous diffusion plants and
oil refineries.
In 1997, Joe transferred to a national security complex at
Oak Ridge known as Y-12, his entry into intelligence work.
His assignment was to track global sales of material used in
nuclear arms. He retired after two years, taking a buyout
with hundreds of others at Oak Ridge, and moved to the C.I.A.
The agency's ability to assess nuclear intelligence had
markedly declined after the cold war, and Joe's appointment
was part of an effort to regain lost expertise. He was
assigned to a division eventually known as Winpac, for
Weapons Intelligence, Nonproliferation and Arms Control.
Winpac had hundreds of employees, but only a dozen or so with
a technical background in nuclear arms and fuel production.
None had Joe's hands-on experience operating centrifuges.
Suddenly, Joe's work was ending up in classified
intelligence reports being read in the White House. Indeed,
his analysis was the primary basis for one of the agency's
first reports on the tubes, which went to senior members of
the Bush administration on April 10, 2001. The tubes, the
report asserted, ``have little use other than for a uranium
enrichment program.''
This alarming assessment was immediately challenged by the
Energy Department, which builds centrifuges and runs the
government's nuclear weapons complex.
The next day, Energy Department officials ticked off a long
list of reasons why the tubes did not appear well suited for
centrifuges. Simply put, the analysis concluded that the
tubes were the wrong size--too narrow, too heavy, too long--
to be of much practical use in a centrifuge.
What was more, the analysis reasoned, if the tubes were
part of a secret, high-risk venture to build a nuclear bomb,
why were the Iraqis haggling over prices with suppliers all
around the world? And why weren't they shopping for all the
other sensitive equipment needed for centrifuges?
All fine questions. But if the tubes were not for a
centrifuge, what were they for?
Within weeks, the Energy Department experts had an answer.
It turned out, they reported, that Iraq had for years used
high-strength aluminum tubes to make combustion chambers for
slim rockets fired from launcher pods. Back in 1996,
inspectors from the International Atomic Energy Agency had
even examined some of those tubes, also made of 7075-T6
aluminum, at a military complex, the Nasser metal fabrication
plant in Baghdad, where the Iraqis acknowledged making
rockets. According to the international agency, the rocket
tubes, some 66,000 of them, were 900 millimeters in length,
with a diameter of 81 millimeters and walls 3.3 millimeters
thick.
The tubes now sought by Iraq had precisely the same
dimensions--a perfect match.
That finding was published May 9, 2001, in the Daily
Intelligence Highlight, a secret Energy Department newsletter
published on Intelink, a Web site for the intelligence
community and the White House.
Joe and his Winpac colleagues at the C.I.A. were not
persuaded. Yes, they conceded, the tubes could be used as
rocket casings. But that made no sense, they argued in a new
report, because Iraq wanted tubes made at tolerances that
``far exceed any known conventional weapons.'' In other
words, Iraq was demanding a level of precision craftsmanship
unnecessary for ordinary mass-produced rockets.
[[Page S10304]]
More to the point, those analysts had hit on a competing
theory; that the tubes' dimensions matched those used in an
early uranium centrifuge developed in the 1950's by a German
scientist, Gernot Zippe. Most centrifuge designs are highly
classified; this one, though, was readily available in
science reports.
Thus, well before Sept. 11, 2001, the debate within the
intelligence community was already neatly framed: Were the
tubes for rockets or centrifuges?
Experts Attack Joe's Case
It was a simple question with enormous implications. If Mr.
Hussein acquired nuclear weapons, American officials feared,
he would wield them to menace the Middle East. So the tube
question was critical, yet none too easy to answer. The
United States had few spies in Iraq, and certainly none who
knew Mr. Hussein's plans for the tubes.
But the tubes themselves could yield many secrets. A
centrifuge is an intricate device. Not any old tube would do.
Carefully inquiry might answer the question.
The intelligence community embarked on an ambitious
international operation to intercept the tubes before they
could get to Iraq. The big break came in June 2001; a
shipment was seized in Jordan.
At the Energy Department, those examining the tubes
included scientists who had spent decades designing and
working on centrifuges, and intelligence officers steeped in
the tricky business of tracking the nuclear ambitions of
America's enemies. They included Dr. Jon A. Kreykes, head of
Oak Ridge's national security advanced technology group; Dr.
Duane F. Starr, an expert on nuclear proliferation threats;
and Dr. Edward Von Halle, a retired Oak Ridge nuclear expert,
Dr. Houston G. Wood III, a professor of engineering at the
University of Virginia who had helped design the 40-foot
American centrifuge, advised the team and consulted with Dr.
Zippe.
On questions about nuclear centrifuges, this was
unambiguously the A-Team of the intelligence community, many
experts say.
On Aug. 17, 2001, weeks before the twin towers fell, the
team published a secret Technical Intelligence Note, a
detailed analysis that laid out its doubts about the tubes'
suitability for centrifuges.
First, in size and material, the tubes were very different
from those Iraq had used in its centrifuge prototypes before
the first gulf war. Those models used tubes that were nearly
twice as wide and made of exotic materials that performed far
better than aluminum. ``Aluminum was a huge step backwards,''
Dr. Wood recalled.
In fact, the team could find no centrifuge machines
``deployed in a production environment'' that used such
narrow tubes. Their walls were three times too thick for
``favorable use'' in a centrifuge, the team wrote. They were
also anodized, meaning they had a special coating to protect
them from weather. Anodized tubes, the team pointed out, are
``not consistent'' with a uranium centrifuge because the
coating can produce bad reactions with uranium gas.
In other words, if Joe and his Winpac colleagues were
right, it meant that Iraq had chosen to forsake years of
promising centrifuge work and instead start from scratch,
with inferior material built to less-than-optimal dimensions.
The Energy Department experts did not think that made much
sense. They concluded that using the tubes in centrifuges
``is credible but unlikely, and a rocket production is the
much more likely end use for these tubes.'' Similar
conclusions were being reached by Britain's intelligence
service and experts at the International Atomic Energy
Agency, a United Nations body.
Unlike Joe, experts at the international agency had worked
with Zippe centrifuges, and they spent hours with him
explaining why they believed his analysis was flawed. They
pointed out errors in his calculations. They noted design
discrepancies. They also sent reports challenging the
centrifuge claim to American government experts through the
embassy in Vienna, a senior official said.
Likewise, Britain's experts believe the tubes would need
``substantial re-engineering'' to work in centrifuges,
according to Britain's review of its prewar intelligence.
Their experts found it ``paradoxical'' that Iraq would order
such finely crafted tubes only to radically rebuild each one
for a centrifuge. Yes, it was theoretically possible, but an
Energy Department analyst later told Senate investigators, it
was also theoretically possible to ``turn your new Yugo into
a Cadillac.''
In late 2001, intelligence analysts at the State Department
also took issue with Joe's work in reports prepared for
Secretary of State Colin Powell. Joe was ``very convinced,
but not very convincing,'' recalled Greg Thielmann, then
director of strategic, proliferation and military affairs in
the Bureau of Intelligence and Research.
By year's end, Energy Department analysts published a
classified report that even more firmly rejected the theory
that the tubes could work as rotors in a 1950's Zippe
centrifuge. These particular Zippe centrifuges, they noted,
were especially ill suited for bomb making. The machines were
a prototype designed for laboratory experiments and mean to
be operated as single units. To produce enough enriched
uranium to make just one bomb a year, Iraq would need up to
16,000 of them working in concert, a challenge for even the
most sophisticated centrifuge plants.
Iraq had never made more than dozen centrifuge prototypes.
Half failed when rotors broke. Of the rest, one actually
worked to enrich uranium, Dr. Mahdi Obeidi, who once ran
Iraq's centrifuge program, said in an interview last week.
The Energy Department team concluded it was ``unlikely that
anyone'' could build a centrifuge site capable of producing
significant amounts of enriched uranium ``based on these
tubes.'' One analyst summed it up this way: the tubes were so
poorly suited for centrifuges, he told Senate investigators,
that if Iraq truly wanted to use them this way, ``we should
just give them the tubes.''
enter cheney
In the months after Sept. 11, 2001, as the Bush
administration devised a strategy to fight Al Qaeda, Vice
President Cheney immersed himself in the world of top-secret
threat assessments. Bob Woodward, in his book `` Plan of
Attack,'' described Mr. Cheney as the administration's new
``self-appointed special examiner of worst-case scenarios,''
and it was a role that fit.
Mr. Cheney had grappled with national security threats for
three decades, first as President Gerald R. Ford's chief of
staff, later as secretary of defense for the first President
Bush. He was on intimate terms with the intelligence
community, 15 spy agencies that frequently feuded over the
significance of raw intelligence. He knew well their record
of getting it wrong (the Bay of Pigs) and underestimating
threats (Mr. Hussein's pre-1991 nuclear program) and failing
to connect the dots (Sept. 11).
As a result, the vice president was not simply a passive
recipient of intelligence analysis. He was known as a man who
asked hard, skeptical questions, a man who paid attention to
detail. ``In my office I have a picture of John Adams, the
first vice president,'' Mr Cheney said in one of his first
speeches as vice president. ``Adams like to say, `The facts
are stubborn things.' Whatever the issue, we are going to
deal with facts and show a decent regard for other points of
view.''
With the Taliban routed in Afghanistan after Sept. 11, Mr.
Cheney and his aides began to focus on intelligence
assessments of Saddam Hussein. Mr. Cheney had long argued for
more forceful action to topple Mr. Hussein. But in January
2002, according to Mr. Woodward's book, the C.I.A. told Mr.
Cheney that Mr. Hussein could not be removed with covert
action alone. His ouster, the agency said, would take an
invasion, which would require persuading the public that Iraq
posted a threat to the United States.
The evidence for that case was buried in classified
intelligence files. Mr. Cheney and his aides began to meet
repeatedly with analysts who specialized in Iraq and
unconventional weapons. They wanted to know about any Iraqi
ties to Al Qaeda and Baghdad's ability to make unconventional
weapons.
``There's no question they had a point of view, but there
was no attempt to get us to hew to a particular point of view
ourselves, or to come to a certain conclusion,'' the deputy
director of analysis at Winpac told the Senate Intelligence
Committee. ``It was trying to figure out, why do we come to
this conclusion, what was the evidence. A lot of questions
were asked, probing questions.''
Of all the worst-case possibilities, the most terrifying
was the idea that Mr. Hussein might slip a nuclear weapon to
terrorists, and Mr. Cheney and his staff zeroed in on Mr.
Hussein's nuclear ambitions.
Mr. Cheney, for example, read a Feb. 12, 2002, report from
the Defense Intelligence Agency about Iraq's reported
attempts to buy 500 tons of yellowcake, a uranium
concentrate, from Niger, according to the Senate Intelligence
Committee report. Many American intelligence analysts did not
put much stock in the Niger report. Mr. Cheney pressed for
more information.
At the same time, a senor intelligence official said, the
agency was fielding repeated requests from Mr. Cheney's
office for intelligence about the tubes, including updates on
Iraq's continuing efforts to procure thousands more after the
seizure in Jordan.
``Remember,'' Dr. David A. Kay, the chief American arms
inspector after the war, said in an interview, ``the tubes
were the only piece of physical evidence about the Iraqi
weapons programs that they had.''
In March 2002, Mr. Cheney traveled to Europe and the Middle
East to build support for a confrontation with Iraq. It is
not known whether he mentioned Niger or the tubes in his
meetings. But on his return, he made it clear that he had
repeatedly discussed Mr. Hussein and the nuclear threat.
``He is actively pursuing nuclear weapons at this time,''
Mr. Cheney asserted on CNN.
At the time, the C.I.A. had not reached so firm a
conclusion. But on March 12, the day Mr. Cheney landed in the
Middle East, he and other senior administration officials had
been sent two C.I.A. reports about the tubes. Each cited the
tubes as evidence that ``Iraq currently may be trying to
reconstitute its gas centrifuge program.''
Neither report, however, mentioned that leading centrifuge
experts at the Energy Department strongly disagreed,
according to Congressional officials who have read the
reports.
what white house is told
As the Senate Intelligence Committee report made clear, the
American intelligence community ``is not a level playing
field when it comes to the competition of ideas in
intelligence analysis.''
[[Page S10305]]
The C.I.A. has a distinct edge: ``unique access to policy
makers and unique control of intelligence reporting,'' the
report found. The Presidential Daily Briefs, for example, are
prepared and presented by agency analysts; the agency's
director is the president's principal intelligence adviser.
This allows agency analysts to control the presentation of
information to policy makers ``without having to explain
dissenting views or defend their analysis from potential
challenges,'' the committee's report said.
This problem, the report said, was ``particularly evident''
with the C.I.A.'s analysis of the tubes, when agency analysts
``lost objectivity and in several cases took action that
improperly excluded useful expertise from the intelligence
debate.'' In interviews, Senate investigators said the
agency's written assessments did a poor job of describing the
debate over the intelligence.
From April 2001 to September 2002, the agency wrote at
least 15 reports on the tubes. Many were sent only to high-
level policy makers, including President Bush, and did not
circulate to other intelligence agencies. None have been
released, though some were described in the Senate's report.
Several senior C.I.A. officials insisted that those reports
did describe at least in general terms the intelligence
debate. ``You don't go into all that detail but you do try to
evince it when you write your current product,'' one agency
official said.
But several Congressional and intelligence officials with
access to the 15 assessments said not one of them informed
senior policy makers of the Energy Department's dissent. They
described a series of reports, some with ominous titles, that
failed to convey either the existence or the substance of the
intensifying debate.
Over and over, the reports restated Joe's main conclusions
for the C.I.A.--that the tubes matched the 1950's Zippe
centrifuge design and were built to specifications that
``exceeded any known conventional weapons application.'' They
did not state what Energy Department experts had noted--that
many common industrial items, even aluminum cans, were made
to specifications as good or better than the tubes sought by
Iraq. Nor did the reports acknowledge a significant error in
Joe's claim--that the tubes ``matched'' those used in a Zippe
centrifuge.
The tubes sought by Iraq had a wall thickness of 3.3
millimeters. When Energy Department experts checked with Dr.
Zippe, a step Joe did not take, they learned that the walls
of Zippe tubes did not exceed 1.1 millimeters, a substantial
difference.
``They never lay out the other case,'' one Congressional
official said of those C.I.A. assessments.
The Senate report provides only a partial picture of the
agency's communications with the White House. In an
arrangement endorsed by both parties, the Intelligence
Committee agreed to delay an examination of whether White
House descriptions of Iraq's military capabilities were
``substantiated by intelligence information.'' As a result,
Senate investigators were not permitted to interview White
House officials about what they knew of the tubes debate and
when they knew it.
But in interviews, C.I.A. and administration officials
disclosed that the dissenting views were repeatedly discussed
in meetings and telephone calls.
One senior official at the agency said its ``fundamental
approach'' was to tell policy makers about dissenting views.
Another senior official acknowledged that some of their
agency's reports ``weren't as well caveated as, in
retrospect, they should have been.'' But he added, ``There
was certainly nothing that was hidden.''
Four agency officials insisted that Winpac analysts
repeatedly explained the contrasting assessments during
briefings with senior National Security Council officials who
dealt with nuclear proliferation issues. ``We think we were
reasonably clear about this,'' a senior C.I.A. official said.
A senior administration official confirmed that Winpac was
indeed candid about the differing views. The official, who
recalled at least a half dozen C.I.A. briefings on tubes,
said he knew by late 2001 that there were differing views on
the tubes. ``To the best of my knowledge, he never hid
anything from me,'' the official said of his counterpart at
Winpac.
This official said he also spoke to senior officials at the
Department of Energy about the tubes, and a spokeswoman for
the department said in a written statement that the agency
``strongly conveyed its viewpoint to senior policy
makers.''
But if senior White House officials understood the
department's main arguments against the tubes, they also took
into account its caveats. ``As for as I know,'' the senior
administration official said, ``D.O.E. never concluded that
these tubes could not be used for centrifuges.''
a referee is ignored
Over the summer of 2002, the White House secretly refined
plans to invade Iraq and debated whether to seek more United
Nations inspections. At the same time, in response to a White
House request in May, C.I.A. officials were quietly working
on a report that would lay out for the public declassified
evidence of Iraq's reported unconventional weapons and ties
to terror groups.
That same summer the tubes debate continued to rage. The
primary antagonists were the C.I.A. and the Energy
Department, with other intelligence agencies drawn in on
either side.
Much of the strife centered on Joe. At first glance, he
seem an unlikely target. He held a relatively junior
position, and according to the C.I.A. he did not write the
vast majority of the agency's reports on the tubes. He has
never met Mr. Cheney. His one trip to the White House was to
take his family on the public tour.
But he was, as one staff member on the Senate Intelligence
Committee put it, ``the ringleader'' of a small group of
Winpac analysts who were convinced that the tubes were
destined for centrifuges. His views carried special force
within the agency because he was the only Winpac analyst with
experience operating uranium centrifuges. In meetings with
other intelligence agencies, he often took the lead in
arguing the technical basis for the agency's conclusions.
``Very few people have the technical knowledge to
independently arrive at the conclusion he did,'' said Dr.
Kay, the weapons inspector, when asked to explain Joe's
influence.
Without identifying him, the Senate Intelligence
Committee's report repeatedly questioned Joe's competence and
integrity. It portrayed him so determined to prove his theory
that he twisted test results, ignored factual discrepancies
and excluded dissenting views.
The Senate report, for example, challenged his decision not
to consult the Energy Department on tests designed to see if
the tubes were strong enough for centrifuges. Asked why he
did not seek their help, Joe told the committee: ``Because we
funded it. It was our testing. We were trying to prove some
things that we wanted to prove with the testing.'' The Senate
report singled out that comment for special criticism,
saying, ``The committee believes that such an effort should
never have been intended to prove what the C.I.A. wanted to
prove.''
Joe's superiors strongly defend his work and say his words
were taken out of context. They describe him as diligent and
professional, an open-minded analyst willing to go the extra
mile to test his theories. ``Part of the job of being an
analyst is to evaluate alternative hypotheses and
possibilities, to build a case, think of alternatives,'' a
senior agency official said. ``That's what Joe did in this
case. If he turned out to be wrong, that's not an offense. He
was expected to be wrong occasionally.''
Still, the bureaucratic infighting was by then so widely
known that even the Australian government was aware of it.
``U.S. agencies differ on whether aluminum tubes, a dual-use
item sought by Iraq, were meant for gas centrifuges,''
Australia's intelligence services wrote in a July 2002
assessment. The same report said the tubes evidence was
``patchy and inconclusive.''
There was a mechanism, however, to resolve the dispute. It
was called the Joint Atomic Energy Intelligence Committee, a
secret body of experts drawn from across the federal
government. For a half century, Jaeic (pronounced jake) has
been called on to resolve disputes and give authoritative
assessments about nuclear intelligence. The committee had
specifically assessed the Iraqi nuclear threat in 1989, 1997
and 1999. An Energy Department expert was the committee's
chairman in 2002, and some department officials say the
C.I.A. opposed calling in Jaeic to mediate the tubes fight.
Not so, agency officials said. In July 2002, they insist,
they were the first intelligence agency to seek Jaeic's
intervention. ``I personally was concerned about the extent
of the community's disagreement on this and the fact that we
weren't getting very far,'' a senior agency official
recalled.
The committee held a formal session in early August to
discuss the debate, with more than a dozen experts on both
sides in attendance. A second meeting was scheduled for later
in August but was postponed. A third meeting was set for
early September; it never happened either.
``We were O.B.E.--overcome by events,'' an official
involved in the proceedings recalled.
white house makes a move
``The case of Saddam Hussein, a sworn enemy of our country,
requires a candid appraisal of the facts,'' Mr. Cheney said
on Aug. 26, 2002, at the outset of an address to the Veterans
of Foreign Wars national convention in Nashville.
Warning against ``wishful thinking or willful blindness,''
Mr. Cheney used the speech to lay out a rationale for pre-
emptive action against Iraq. Simply resuming United Nations
inspections, he argued, could give ``false comfort'' that Mr.
Hussein was contained.
``We now know Saddam has resumed his efforts to acquire
nuclear weapons,'' he declared, words that quickly made
headlines worldwide. ``Many of us are convinced that Saddam
will acquire nuclear weapons fairly soon. Just how soon, we
cannot really gauge. Intelligence is an uncertain business,
even in the best of circumstances.''
But the world, Mr. Cheney warned, could ill afford to once
again underestimate Iraq's progress.
``Armed with an arsenal of these weapons of terror, and
seated atop 10 percent of the world's oil reserves, Saddam
Hussein could then be expected to seek domination of the
entire Middle East, take control of a great portion of the
world's energy supplies, directly threaten America's friends
throughout the region, and subject the United States or any
other nation to nuclear blackmail.''
A week later President Bush announced that he would ask
Congress for authorization
[[Page S10306]]
to oust Mr. Hussein. He also met that day with senior members
of the House and Senate, some of whom expressed concern that
the administration had yet to show the American people
tangible evidence of an imminent threat. The fact that Mr.
Hussein gassed his own people in the 1980's, they argued, was
not sufficient evidence of a threat to the United States in
2002.
President Bush got the message. He directed Mr. Cheney to
give the public and Congress a more complete picture of the
latest intelligence on Iraq.
In his Nashville speech, Mr. Cheney had not mentioned the
aluminum tubes or any other fresh intelligence when he said,
``We now know that Saddam has resumed his efforts to acquire
nuclear weapons.'' The one specific source he did cite was
Hussein Kamel al-Majid, a son-in-law of Mr. Hussein's who
defected in 1994 after running Iraq's chemical, biological
and nuclear weapons programs. But Mr. Majid told American
intelligence officials in 1995 that Iraq's nuclear program
had been dismantled. What's more, Mr. Majid could not have
had any insight into Mr. Hussein's current nuclear
activities: he was assassinated in 1996 on his return to
Iraq.
The day after President Bush announced he was seeking
Congressional authorization, Mr. Cheney and Mr. Tenet, the
director of central intelligence, traveled to Capitol Hill to
brief the four top Congressional leaders. After the 90-minute
session, J. Dennis Hastert, the House speaker, told Fox News
that Mr. Cheney had provided new information about
unconventional weapons, and Fox went on to report that one
source said the new intelligence described ``just how
dangerously close Saddam Hussein has come to developing a
nuclear bomb.''
Tom Daschle, the South Dakota Democrat and Senate majority
leader, was more cautious. ``What has changed over the course
of the last 10 years, that brings this country to the belief
that it has to act in a pre-emptive fashion in invading
Iraq?'' he asked.
A few days later, on Sept. 8., the lead article on Page 1
of The New York Times gave the first detailed account of the
aluminum tubes. The article cited unidentified senior
administration officials who insisted that the dimensions,
specifications and numbers of tubes sought showed that they
were intended for a nuclear weapons program.
``The closer he gets to a nuclear capability, the more
credible is his threat to use chemical and biological
weapons,'' a senior administration official was quoted as
saying. ``Nuclear weapons are his hole card.''
The article gave no hint of a debate over the tubes.
The White House did much to increase the impact of The
Times' article. The morning it was published, Mr. Cheney went
on the NBC News program ``Meet the Press'' and confirmed when
asked that the tubes were the most alarming evidence behind
the administration's view that Iraq had resumed its nuclear
weapons program. The tubes, he said, had ``raised our level
of concern.'' Ms. Rice, the national security adviser, went
on CNN and said the tubes ``are only really suited for
nuclear weapons programs.''
Neither official mentioned that the nation's top nuclear
design experts believed overwhelmingly that the tubes were
poorly suited for centrifuges.
Mr. Cheney, who has a history of criticizing officials who
disclose sensitive information, typically refuses to comment
when asked about secret intelligence. Yet on this day, with a
Gallup poll showing that 58 percent of Americans did not
believe President Bush had done enough to explain why the
United States should act against Iraq, Mr. Cheney spoke
openly about one of the closest held secrets regarding Iraq.
Not only did Mr. Cheney draw attention to the tubes; he did
so with a certitude that could not be found in even the
C.I.A.'s assessments. On ``Meet the Press,'' Mr. Cheney said
he knew ``for sure'' and ``in fact'' and ``with absolute
certainty'' that Mr. Hussein was buying equipment to build a
nuclear weapon.
``He has reconstituted his nuclear program,'' Mr. Cheney
said flatly.
But in the C.I.A. reports, evidence ``suggested'' or
``could mean'' or ``indicates''--a word used in a report
issued just weeks earlier. Little if anything was asserted
with absolute certainty. The intelligence community had not
yet concluded that Iraq had indeed reconstituted its nuclear
program.
``The vice president's public statements have reflected the
evolving judgment of the intelligence community,'' Kevin
Kellems, Mr. Cheney's spokesman, said in a written statement.
The C.I.A. routinely checks presidential speeches that draw
on intelligence reports. This is how intelligence
professionals pull politicians back from factual errors. One
such opportunity came soon after Mr. Cheney's appearance on
``Meet the Press.'' On Sept. 11, 2002, the White House asked
the agency to clear for possible presidential use a passage
on Iraq's nuclear program. The passage included this
sentence: ``Iraq has made several attempts to buy high-
strength aluminum tubes used in centrifuges to enrich uranium
for nuclear weapons.''
The agency did not ask speechwriters to make clear that
centrifuges were but one possible use, that intelligence
experts were divided and that the tubes also matched those
used in Iraqi rockets. In fact, according to the Senate's
investigation, the agency suggested no changes at all.
The next day President Bush used virtually identical
language when he cited the aluminum tubes in an address to
the United Nations General Assembly.
dissent, but to little effect
The administration's talk of clandestine centrifuges,
nuclear blackmail and mushroom clouds had a powerful
political effect, particularly on senators who were facing
fall election campaigns. ``When you hear about nuclear
weapons, this is the national security knock-out punch,''
said Senator Ron Wyden, a Democrat from Oregon who sits on
the Intelligence Committee and ultimately voted against
authorizing war.
Even so, it did not take long for questions to surface over
the administration's claims about Mr. Hussein's nuclear
capabilities. As it happened, Senator Dianne Feinstein,
another Democratic member of the Intelligence Committee, had
visited the International Atomic Energy Agency in Vienna in
August 2002. Officials there, she later recalled, told her
they saw no signs of a revived nuclear weapons program in
Iraq.
At that point, the tubes debate was in its 16th month. Yet
Mr. Tenet, of the C.I.A., the man most responsible for
briefing President Bush on intelligence, told the committee
that he was unaware until that September of the profound
disagreement over critical evidence that Mr. Bush was citing
to world leaders as justification for war.
Even now, committee members from both parties express
baffled anger at this possibility. How could he not know? ``I
don't even understand it,'' Olympia Snowe, a Republican
senator from Maine, said in an interview. ``I cannot
comprehend the failures in judgment or breakdowns in
communication.''
Mr. Tenet told Senate investigators that he did not expect
to learn of dissenting opinions ``until the issue gets
joined'' at the highest levels of the intelligence community.
But if Mr. Tenet's lack of knowledge meant the president was
given incomplete information about the tubes, there was still
plenty of time for the White House to become fully informed.
Yet so far, Senate investigators say, they have found
little evidence the White House tried to find out why so many
experts disputed the C.I.A. tubes theory. If anything,
administration officials minimized the divide.
On Sept. 13, The Times made the first public mention of the
tubes debate in the sixth paragraph of an article on Page
A13. In it an unidentified senior administration official
dismissed the debate as a ``footnote, not a split.'' Citing
another unidentified administration official, the story
reported that the ``best technical experts and nuclear
scientists at laboratories like Oak Ridge supported the
C.I.A. assessments.''
As a senior Oak Ridge official pointed out to the
Intelligence Committee, ``the vast majority of scientists and
nuclear experts'' in the Energy Department's laboratories in
fact disagreed with the agency. But on Sept. 13, the day the
article appeared, the Energy Department sent a directive
forbidding employees from discussing the subject with
reporters.
The Energy Department, in a written statement, said that it
was ``completely appropriate'' to remind employees of the
need to protect nuclear secrets and that it had made no
effort ``to quash dissent.''
It closed hearings that month, Congress began to hear
testimony about the debate. Several Democrats said in
interviews that secrecy rules had prevented them from
speaking out about the gap between the administration's view
of the tubes and the more benign explanations described in
classified testimony.
One senior C.I.A. official recalled cautioning members of
Congress in a closed session not to speak publicly about the
possibility that the tubes were for rockets. ``If people
start talking about that and the Iraqis see that people are
saying rocket bodies, that will automatically become their
explanation whenever anyone goes to Iraq,'' the official said
in an interview.
So while administration officials spoke freely about the
agency's theory, the evidence that best challenged this view
remained almost entirely off limits for public debate.
In late September, the C.I.A. sent policymakers its most
detailed report on the tubes. For the first time, an agency
report acknowledged that ``some in the intelligence
community'' believed rocket were ``more likely end uses'' for
the tubes, according to officials who have seen the report.
Meanwhile, at the Energy Department, scientists were
startled to find senior White House officials embracing a
view of the tubes they considered thoroughly discredited. ``I
was really shocked in 2002 when I saw it was still there,''
Dr. Wood, the Oak Ridge adviser, said of the centrifuge
claim. ``I thought it had been put to bed.''
Members of the Energy Department team took a highly unusual
step: They began working quietly with a Washington arms-
control group, the Institute for Science and International
Security, to help the group inform the public about the
debate, said one team member and the group's president, David
Albright.
On Sept. 23, the institute issued the first in series of
lengthy reports that repeated some of the Energy Department's
arguments against the C.I.A. analysis, though no classified
ones. Still, after more than 16 months of secret debate, it
was the first public airing of facts that undermined the most
alarming suggestions about Iraq's nuclear threat.
[[Page S10307]]
The reports got little attention, partly because reporters
did not realize they had been done with the cooperation of
top Energy Department experts. The Washington Post ran a
brief article about the findings on Page A18. Many major
newspapers, including The Times, ran nothing at all.
scrambling for an ``estimate''
Soon after Mr. Cheney's appearance on ``Meet Press,''
Democratic senators began pressing for a new National
Intelligence Estimate on Iraq, terrorism and unconventional
weapons. A National Intelligence Estimate is a classified
document that is supposed to reflect the combined judgment of
the entire intelligence community. The last such estimate had
been done in 2000.
Most estimates take months to complete. But this one had to
be done in days, in time for an October vote on a war
resolution. There was little time for review or reflection,
and no time for Jaeic, the joint committee, to reconcile deep
analytical differences.
This was a potentially thorny obstacle for those writing
the nuclear section: What do you do when the nation's nuclear
experts strongly doubt the linchpin evidence behind the
C.I.A.'s claims that Iraq was rebuilding its nuclear weapons
program?
The Energy Department helped solve the problem. In meetings
on the estimate, senior department intelligence officials
said that while they still did not believe the tubes were for
centrifuges, they nonetheless could agree that Iraq was
reconstituting its nuclear weapons capability.
Several senior scientists inside the department said they
were stunned by that stance; they saw no compelling evidence
of a revived nuclear program.
Some laboratory officials blamed time pressure and
inexperience. Thomas S. Ryder, the department's
representative at the meetings, had been acting director of
the department's intelligence unit for only five months. ``A
heck of a nice guy but not savvy on technical issues,'' is
the way one senior nuclear official described Mr. Ryder, who
declined comment.
Mr. Ryder's position was more alarming than prior
assessments from the Energy Department. In an August 2001
intelligence paper, department analysts warned of suspicious
activities in Iraq that ``could be preliminary steps'' toward
reviving a centrifuge program. In July 2002 an Energy
Department report, ``Nuclear Reconstitution Efforts
Underway?'', noted that several developments, including
Iraq's suspected bid to buy yellowcake uranium from Niger,
suggested Baghdad was ``seeking to reconstitute'' a nuclear
weapons program.
According to intelligence officials who took part in the
meetings, Mr. Ryder justified his department's now firm
position on nuclear reconstitution in large part by citing
the Niger reports. Many C.I.A. analysts considered that
intelligence suspect, as did analysts at the State
Department.
Nevertheless, the estimate's authors seized on the Energy
Department's position to avoid the entire tubes debate, with
written dissents relegated to a 10-page annex. The estimate
would instead emphasize that the C.I.A. and the Energy
Department both agreed that Mr. Hussein was rebuilding his
nuclear weapons program. Only the closest reader would see
that each agency was basing its assessment in large measure
on evidence the other considered suspect.
On Oct. 2, nine days before the Senate vote on the war
resolution, the new National Intelligence Estimate was
delivered to the Intelligence Committee. The most significant
change from past estimates dealt with nuclear weapons; the
new one agreed with Mr. Cheney that Iraq was in aggressive
pursuit of the atomic bomb.
Asked when Mr. Cheney became aware of the disagreements
over the tubes, Mr. Kellems, his spokesman, said, ``The vice
president knew about the debate at about the time of the
National Intelligence Estimated.''
Today, the Intelligence Committee's report makes clear,
that 93-page estimate stands as one of the most flawed
documents in the history of American intelligence. The
committee concluded unanimously that most of the major
findings in the estimate were wrong, unfounded or overblown.
This was especially true of the nuclear section.
Estimates express their most important findings with high,
moderate or low confidence levels. This one claimed
``moderate confidence'' on how fast Iraq could have a bomb,
but ``high confidence'' that Baghdad was rebuilding its
nuclear program. And the tubes were the leading and most
detailed evidence cited in the body of the report.
According to the committee, the passages on the tubes,
which adopted much of the C.I.A. analysis, were misleading
and riddled with factual errors.
The estimate, for example, included a chart intended to
show that the dimensions of the tubes closely matched a Zippe
centrifuge. Yet the chart omitted the dimensions of Iraq's
81-millimeter rocket, which precisely matched the tubes.
The estimate cited Iraq's alleged willingness to pay top
dollar for the tubes, up to $17.50 each, as evidence they
were for secret centrifuges. But Defense Department rocket
engineers told Senate investigators that 7075-T6 aluminum is
``the material of choice for low-cost rocket systems.''
The estimate also asserted that 7075-T6 tubes were ``poor
choices'' for rockets. In fact, similar tubes were used in
rockets from several countries, including the United States,
and in an Italian rocket, the Medusa, which Iraq had copied.
Beyond tubes, the estimate cited several other ``key
judgments'' that supported its assessment. The committee
found that intelligence just as flawed.
The estimate, for example, pointed to Iraq's purchases of
magnets, balancing machines and machine tools, all of which
could be used in a nuclear program. But each item also had
legitimate non-nuclear uses, and there was no credible
intelligence whatsoever showing they were for a nuclear
program.
The estimate said Iraq's Atomic Energy Commission was
building new production facilities for nuclear weapons. The
Senate found that claim was based on a single operative's
report, which described how the commission had constructed
one headquarters building and planned `` a new high-level
polytechnic school.''
Finally, the estimate stated that many nuclear scientists
had been reassigned to the A.E.C. The Senate found nothing to
back that conclusion. It did, though, discover a 2001 report
in which a commission employee complained that Iraq's nuclear
program ``had been stalled since the gulf war.''
Such ``key judgments'' are supposed to reflect the very
best American intelligence. (The Niger intelligence, for
example, was considered too shaky to be included as a key
judgment.) Yet as they studied raw intelligence reports,
those involved in the Senate investigation came to a
sickening realization. ``We kept looking at the intelligence
and saying, `My God, there's nothing here,' '' one official
recalled.
The Vote for War
Soon after the National Intelligence Estimate was
completed, Mr. Bush delivered a speech in Cincinnati in which
he described the ``grave threat'' that Iraq and its ``arsenal
of terror'' posed to the United States. He dwelled longest on
nuclear weapons, reviewing much of the evidence outlined in
the estimate. The C.I.A. had warned him away from mentioning
Niger.
``Facing clear evidence of peril,'' the president
concluded, ``we cannot wait for the final proof--the smoking
gun--that could come in the form of a mushroom cloud.''
Four days later, on Oct. 11, the Senate voted 77-23 to give
Mr. Bush broad authority to invade Iraq. The resolution
stated that Iraq posed ``a continuing threat'' to the United
States by, among other things, ``actively seeking a nuclear
weapons capability.''
Many Senators who voted for the resolution emphasized the
nuclear threat.
``The great danger is a nuclear one,'' Senator Feinstein,
the California Democrat, said on the Senate floor.
But Senator Bob Graham, then chairman of the Intelligence
Committee, said he voted against the resolution in part
because of doubts about the tubes. ``It reinforced in my mind
pre-existing questions I had about the unreliability of the
intelligence community, especially the C.I.A.,'' Mr. Graham,
a Florida Democrat, said in an interview.
At the Democratic convention in Boston this summer, Senator
John Kerry pledged that should he be elected president, ``I
will ask hard questions and demand hard evidence.'' But in
October 2002, when the Senate voted on Iraq, Mr. Kerry had
not read the National Intelligence Estimate, but instead had
relied on briefing from Mr. Tenet, a spokeswoman said.
``According to the C.I.A.'s report, all U.S. intelligence
experts agree that Iraq is seeking nuclear weapons,'' Mr.
Kerry said then, explaining his vote. ``There is little
question that Saddam Hussein wants to develop nuclear
weapons.''
The report cited by Mr. Kerry, an unclassified white paper,
said nothing about the tubes debate except that ``some''
analysts believed the tubes were ``probably intended'' for
conventional arms.
``It is common knowledge that Congress does not have the
same access as the executive branch,'' Brooke Anderson, a
Kerry spokeswoman, said yesterday.
Mr. Kerry's running mate, Senator John Edwards, severed on
the Intelligence Committee, which gave him ample opportunity
to ask hard questions. But in voting to authorize war, Mr.
Edwards expressed no uncertainty about the principal evidence
of Mr. Hussein's alleged nuclear program.
``We know that he is doing everything he can to build
nuclear weapons,'' Mr. Edwards said then.
On Dec. 7, 2002, Iraq submitted a 12,200-page declaration
about unconventional arms to the United Nations that made no
mention of the tubes. Soon after, Winpac analysts at the
C.I.A. assessed the declaration for President Bush. The
analysts criticized Iraq for failing to acknowledge or
explain why it sought tubes ``we believe suitable for use in
a gas centrifuge uranium effort.'' Nor, they said, did it
``acknowledge efforts to procure uranium from Niger.''
Neither Energy Department nor State Department intelligence
experts were given a chance to review the Winpac assessment,
prompting complaints that dissenting views were being
withheld from policy makers.
``It is most disturbing that Winpac is essentially
directing foreign policy in this matter,'' one Energy
Department official wrote in an e-mail message. ``There are
some very strong points to be made in respect to Iraq's
arrogant noncompliance with U.N. sanctions. However, when
individuals attempt to convert those `strong statements'
[[Page S10308]]
into the `knock-out' punch, the administration will
ultimately look foolish--i.e., the tubes and Niger!''
The U.N. Inspectors Return
For nearly two years Western intelligence analysts had been
trying to divine from afar Iraq's plans for the tubes. At the
end of 2002, with the resumption of United Nations arms
inspectors, it became possible to seek answers inside Iraq.
Inspectors from the International Atomic Energy Agency
immediately zeroed in on the tubes.
The team quickly arranged a field trip to the Nasser metal
fabrication factory, where they found 13,000 completed
rockets, all produced from 7075-T6 aluminum tubes. The Iraqi
rocket engineers explained that they had been shopping for
more tubes because their supply was running low.
Why order tubes with such tight tolerances? An Iraqi
engineer said they wanted to improve the rocket's accuracy
without making major design changes. Design documents and
procurement records confirmed his account.
The inspectors solved another mystery. The tubes
intercepted in Jordan had been anodized, given a protective
coating. The Iraqis had a simple explanation: they wanted the
new tubes protected from the elements. Sure enough, the
inspectors found that many thousands of the older tubes,
which had no special coating, were corroded because they had
been stored outside.
The inspectors found no trace of a clandestine centrifuge
program. On Jan. 10, 2003, The Times reported that the
international agency was challenging ``the key piece of
evidence'' behind ``the primary rationale for going to war.''
The article, on Page A10, also reported that officials at the
Energy Department and State Department had suggested the
tubes might be for rockets.
The C.I.A. theory was in trouble, and senior members of the
Bush administration seemed to know it.
Also that January, White House officials who were helping
to draft what would become Secretary Powell's speech to the
Security Council sent word to the intelligence community that
they believed ``the nuclear case was weak,'' the Senate
report said. In an interview, a senior administration
official said it was widely understood all along at the White
House that the evidence of a nuclear threat was piecemeal and
weaker than that for other unconventional arms.
But rather than withdraw the nuclear card--a step that
could have undermined United States credibility just as tens
of thousands of troops were being airlifted to the region--
the White House cast about for new arguments and evidence to
support it.
Gen. Richard B. Myers, chairman of the Joint Chiefs of
Staff, asked the intelligence agencies for more evidence
beyond the tubes to bolster the nuclear case. Winpac analysts
redoubled efforts to prove that Iraq was trying to acquire
uranium from Africa. When rocket engineers at the Defense
Department were approached by the C.I.A. and asked to compare
the Iraqi tubes with American ones, the engineers said the
tubes ``were perfectly usable for rockets.'' The agency
analysts did not appear pleased. One rocket engineer
complained to Senate investigators that the analysts had ``an
agenda'' and were trying ``to bias us'' into agreeing that
the Iraqi tubes were not fit for rockets. In interviews,
agency officials denied any such effort.
According to the Intelligence Committee report, the agency
also sought to undermine the I.A.E.A.'s work with secret
intelligence assessments distributed only to senior policy
makers. Nonetheless, on Jan. 22, in a meeting first reported
by The Washington Post, the ubiquitous Joe flew to Vienna in
a last-ditch attempt to bring the international experts
around to his point of view.
The session was a disaster.
``Everybody was embarrassed when he came and made this
presentation, embarrassed and disgusted,'' one participant
said. ``We were going insane, thinking, `Where is he coming
from?' ''
On Jan. 27, the international agency rendered its judgment:
it told the Security Council that it had found no evidence of
a revived nuclear weapons program in Iraq. ``From our
analysis to date,'' the agency reported, ``it appears that
the aluminum tubes would be consistent with the purpose
stated by Iraq and, unless modified, would not be suitable
for manufacturing centrifuges.''
The Powell Presentation
The next night, during his State of the Union address,
President Bush cited I.A.E.A. findings from years past that
confirmed that Mr. Hussein had had an ``advanced'' nuclear
weapons program in the 1990's. He did not mention the
agency's finding from the day before.
He did, though, repeat the claim that Mr. Hussein was
trying to buy tubes ``suitable for nuclear weapons
production.'' Mr. Bush also cited British intelligence that
Mr. Hussein had recently sought ``significant quantities'' of
uranium from Africa--a reference in 16 words that the White
House later said should have been stricken, though the
British government now insists the information was credible.
``Saddam Hussein,'' Mr. Bush said that night, ``has not
credibly explained these activities. He clearly has much to
hide. The dictator of Iraq is not disarming.''
A senior administration official involved in vetting the
address said Mr. Bush did not cite the I.A.E.A. conclusion of
Jan. 27 because the White House believed the agency was
analyzing old Iraqi tubes, not the newer ones seized in
Jordan. But senior officials in Vienna and Washington said
the international group's analysis covered both types of
tubes.
The senior administration official also said the
President's words were carefully chosen to reflect the doubts
at the Energy Department. The crucial
