The Intelligence Reform and Terrorism Prevention Act of 2004 is a statute that falls precisely into this situation. Families of those who died in the 9/11 tragedy demanded that something be done about intelligence failures leading up to those horrible attacks. In response, congress rushed through this statute without considering the numerous complicated issues that it created. The most troublesome revolve around Title I, which is captioned “Reform Of The Intelligence Community” and Subtitle A, which establishes a “Director of National Intelligence.” The problem is that the language of the statute is vague and ambiguous about what this Director of National Intelligence should do.

It provides that the Director may not be simultaneously serving as the CIA Director or the head of any other element of the intelligence community. But it does not explain how the Director shall interact with the CIA or the other fifteen agencies that make up the U.S. intelligence agencies.

More specifically, the CIA has its own operations around the world. It has its own structure under the CIA Director for authorizing, approving and implementing actions. It has its own budget and system for approving funds.

At the same time, the Pentagon has greatly increased its own intelligence gathering operations. Numerous articles in the last couple of months have focused on DOD’s efforts to usurp the role of the CIA. Regardless of the merits of that dispute, it is clear that DOD is a major player in the intelligence game.

Under the statute, the Director will have the primary authority over the $40 billion that the U.S. spends on intelligence collection each year. However, it is unclear how the Director will work with the CIA or the Pentagon intelligence agencies. The statute contains no guidance on this critical issue.

These uncertainties and ambiguities have been acknowledged by key people in the legislative process. For example, the Vice Chairman of the Senate Intelligence Committee, Senator John D. Rockefeller IV, (Democrat-W Va.) conceded that there are uncertainties about the Director’s role, but said “it was better to be a little vague” in crafting the statute. He went on to add that the Director should be “one of the five most powerful people in the government.” It is troublesome that someone with so much power will not have a clearly delineated role.

It is now several weeks after the enactment of the statute, and the President appears to have made little headway in finding someone to fill this position. Representative Ellen Tauscher (Democrat-CA) said that the delay was due to the “murkiness and ambiguities...directly related to compromises that had to be made in both houses” to enact the legislation.

Another troublesome aspect of the law is its requirement that the Director “act as the principal advisor to the President” for intelligence matters related to national security. This language and other sections of the Act strongly limit access to the President and make the Director a gatekeeper for intelligence matters. This appears to be precisely the wrong thing to do. The White House might be better off having multiple sources of intelligence information.

What appears likely to emerge is a whole new bureaucracy built around the Director’s position which will continually do battle with the CIA and DOD intelligence agencies. One can hardly expect them to yield authority or power to the Director. Budget battles, as well as turf wars and squabbling, will become the prevailing mode in intelligence operations. It is difficult to see how any of this will lead to an improved situation for national security or for the gathering of effective intelligence information.

How, for example, will the Director be involved in specific Pentagon or CIA operations which may have far reaching impact for the United States? Will the Director have a right of veto? Will his approval be required? And if so, for what operations?

The statute will no doubt give rise to a considerable volume of work for lawyers in the intelligence agencies as well as in the White House. Definitely not a good way to run a government. Congress should have taken additional time and enacted a more specific, well developed law.