The Ford Administration, the National Security Agency, and the “Year of Intelligence”: Constructing a New Legal Framework for Intelligence

In the mid-1970s, Congress and the judiciary moved to regulate the National Security Agency (NSA) at a moment when such regulation might have restricted the growth of electronic surveillance. The Ford administration played a crucial role in preventing that from happening. It did so by controlling the flow of intelligence information to Congress and by establishing a flexible new legal framework for intelligence based on broad executive orders, narrow legislation, and legal opinions written by executive branch lawyers. This framework fostered a perception of legality that headed off calls for comprehensive legislation governing intelligence. The Ford administration’s actions protected NSA from meaningful regulation, preserved the growth of electronic surveillance, and sustained executive branch preeminence in national security affairs. The episode proved formative for the Ford administration officials involved—including Dick Cheney, Donald Rumsfeld, and Antonin Scalia—and solidified the central role of executive branch lawyers in national security policymaking.

Setting the Stage

This chapter begins by looking at two trips to Iraq: the first by Secretary of State Condoleezza Rice, and the second by National Security Advisor Stephen Hadley. Hadley's trip in November of 2006 was particularly crucial—it was meant to gauge prospects for a change in course, and to determine whether Iraqi Prime Minister Nouri al-Maliki was a viable partner. Back in Washington, the Republican Party's loss of control of both houses of Congress in the midterm elections, along with Bush's eventual firing of Donald Rumsfeld, interacted with the growing intellectual ferment inside government and led Bush to launch and publicly announce a formal review of strategy in Iraq. Rumsfeld's replacement, Robert Gates, while named to the post in early November, would not formally take charge for another month. Time was now of the essence for the president. He was losing the war in Iraq, and, as Stephen Cambone, the undersecretary of defense for intelligence, put it, “he was losing the war here at home.”

This Strategy Is Not Working

This chapter discusses the Samarra bombing and the resulting debates over its significance. The winter and spring of 2006 was a time of conflicting signals and conflicting efforts in Washington. Some officials began to believe that the strategy in Iraq was not working. The predominant view in the intelligence community, according to David Gordon, vice chairman of the National Intelligence Council, was that “we were transitioning into something very different, that we were really transitioning from insurgency to a civil war.” Around the same time, the failings of the US mission in Iraq led a number of retired generals to publicly call for the ouster of Secretary of Defense Donald Rumsfeld. Unknown to its advocates, the public “Revolt of the Generals” actually undermined ongoing, internal efforts to replace the secretary of defense—and thus, ironically, delayed rather than accelerated a review of strategy in Iraq. Meanwhile, efforts from within government to rethink US strategy remained nascent and largely disconnected. The successful seating of the Iraqi government and a new prime minister, Nouri al-Maliki, and the success of US forces in locating and killing Sunni militant Abu Musab al-Zarqawi, undercut arguments that the war was failing, and in particular derailed efforts to kick off a major strategy review beginning with a high-level meeting at Camp David in June of 2006.

A New Global Agenda: 1997–2001

The National Intelligence Council’s role in nontraditional threats grew considerably under John Gannon’s chairmanship to include major studies on issues such as technological innovation, narcotics, HIV/AIDS, and global migration. These and other reports informed the production of the highly acclaimed Global Trends 2015, which took its predecessor report several steps further, particularly in its engagement of nongovernmental experts and organizations. On a more contentious note, the Republican takeover of the House of Representatives in 1994 led to creation of a commission led by Donald Rumsfeld to look into what was seen by some as a too-sanguine assessment of the nuclear proliferation threat. The Rumsfeld Commission’s focus on North Korea, Iran, and Iraq was a harbinger of the George W. Bush administration’s focus on the “axis of evil” and its fateful invasion of Iraq in 2003, with Rumsfeld playing a lead role as secretary of defense.

LBJ and the politics of passing FOIA

Lyndon Johnson's ascension to the presidency following Kennedy's death created the political space for one of the most productive policymaking periods in US history. The politics of this moment provided an astute politician like Moss the opportunity to press forward on getting FOIA passed out of Congress. Years of coalition building on the issue, including support from key congressional Republicans like Donald Rumsfeld and House Minority Leader Gerald Ford, along with Bill Moyers eventual support from within the White House, provided Moss with the opportunity for policy change. LBJ would follow Kennedy's example by signing a letter to Moss reaffirming Kennedy's position on executive privilege, but Johnson was far from supportive of the efforts to get FOIA passed. A tumultuous period marked by massive policy change, FOIA was a small piece of the Great Society, but one that Congress - and Moss - would not back away from. This chapter delves deep into the politics and skills of the individuals in Congress that were able to get FOIA passed and get Johnson's signature on the bill, marking the end of the legislative development period within the CLDC and moving to the next phase of implementation, oversight, and amendment.

The Iraq War, 2003–2011

The George W. Bush administration showed signs of biased decision-making before and after the 2003 Iraq invasion, which it claimed was necessary because Iraq possessed weapons of mass destruction. With Donald Rumsfeld as secretary of defense, the administration focused narrowly on regime change and failed to plan for the aftermath of war. With the fall of Baghdad, the administration expanded US goals under the Coalition Provisional Authority without the capabilities to pursue them. Although the administration adjusted course in 2007, its new “surge” strategy, based on counterinsurgency principles, had the US military pursuing modest goals to suit available capabilities. Then the administration benefited unexpectedly from an alliance with Sunni insurgents (the Anbar Awakening) and the stand-down of the principal Shiite militia opposing US forces. US strategy finally amounted to staying the course through 2011, when the Obama administration chose to leave Iraq rather than seek a negotiated compromise.