The Necessity of Federal Intelligence Sharing with Sub Federal Agencies
I. INTRODUCTION The tragic events of September 11, 2001, could have been avoided. The intelligence failures that made possible the hijacking of four commercial aircraft by foreign al Qaeda members operating inside the United States were not borne by any single agency or any single individual. Instead, they were part of a systemic intelligence failure a failure that the 9/11 Commission addressed in the Final Report of the National Commission on Terrorist Attacks Upon the United States (9/11 Commission Report or Report).1 The 9/11 Commission Report recommended there be "unity of effort" in the sharing of intelligence.2 Unity of effort is the "coordination and cooperation among all" intelligence agencies working "toward a commonly recognized objective."3 In response to the Report and the events of 9/11, several laws and executive orders were adopted to implement the recommendations.4 One focus of the new legislation was to expand the sharing of intelligence amongst the federal agencies and between federal agencies and state and local agencies. Under the new legislation, sub federal agencies have the potential to play a larger role in the intelligence community, but that role is entirely dependent on the mechanisms put in place to encourage information sharing and to address risks of information sharing with state and local agencies. The purpose of this Note is to analyze the past and current law governing the dissemination of national security information between federal, state, and local authorities, and to propose reforms. As a consequence of this focus, less emphasis will be placed on general policy questions related to information sharing, even though they are equally pertinent to discussions of the legal basis for information sharing.5 This Note assumes generally that information sharing is necessary for effective intelligence and has abstained from a policy analysis of that position. However, there are serious concerns with information sharing, and Part II gives a brief, non exhaustive overview of some of those concerns. Part II addresses the policy considerations of including state and local officials in intelligence operations. Part III explores the current cooperative arrangements between federal and subfederal agencies and examines the attributes of each arrangement. Part IV discusses the history of information sharing among various intelligence agencies before 9/11. Part V is concerned with the changes to information sharing post 9/11 and in response to the 9/11 Commission Report. Part VI explores three recommendations: providing greater oversight and incentives for information sharing, establishing a central figure with authority to set standards for all agencies relating to information sharing, and improvements to existing cooperative arrangements. II. POLICY CONSIDERATIONS OF INCLUDING STATE AND LOCAL OFFICIALS IN INTELLIGENCE OPERATIONS The destruction caused by the terrorist attacks on 9/11 instilled a sense that America was vulnerable to attacks from within. In the last several decades, homegrown terrorism6 and radicalization7 have increased, leading to a corresponding focus by federal intelligence agencies on counterradicalization.8 With the shift of federal agencies toward counterradicalization and away from the Cold War intelligence bureaucracy, state and local agencies have particular advantages that can increase the overall effectiveness of intelligence operations in combating homegrown terrorism. These advantages cannot be utilized without information sharing between federal agencies and state and local agencies. Professor Samuel J. Rascoff has identified several comparative strengths and weaknesses possessed by local intelligence agents.9 The first strength is called "Epistemic Federalism."10 Because agencies approach issues from their particular perspectives, local agencies are more adept at seeing local factors of terrorism than are federal agencies.