CIA Headquarters
It's been almost six years since 9/11, and the national intelligence director only now has gotten around to thinking about rewriting Executive Order 12,333, the intelligence community's bible issued under President Reagan in 1981, which lays down the duties and authorities of 14 of our intelligence agencies (two of them did not exist when E.O 12,333 was written). Well, better late than never.
When the order was established, terrorism still wasn't a priority for the Reagan White House; in the section covering the FBI, terrorism is not even mentioned. And in ordering warrantless NSA intercepts on Americans, the Bush Administration put the last nail in E.O. 12,333's coffin.
Up until 9/11, after all, E.O. 12,333 had the full force of law inside the intelligence community, particularly the ban on assassination and the protection of Americans' rights. When I was still in the agency, I remember the CIA turning off telephone taps when we discovered we were inadvertently listening in on an American's conversation. It didn't matter that the American wasn't the target or the CIA wasn't disseminating or storing the transcript from the American's conservation. It was flat out illegal to spy on Americans.
It isn't just unfortunate for the Americans being spied upon, but also for the people doing the listening in. Intelligence agencies like fixed rules. They don't like being put in legal jeopardy for someone else's political expediency. A whisper from the White House — Don't worry, the Attorney General says what you're doing is completely legal — won't cut it any longer.
A new executive order should deal with all the issues we read about in the press today, from extraordinary renditions to abusive interrogation techniques and assassinations. Does this country adhere to the Geneva Convention or doesn't it? Is the NSA allowed to channel surf on our conversations or not? Do we assassinate? Whatever is decided, it needs to be stated and agreed to in a public document. Let's not leave the burden on our intelligence agencies
Which brings me back to the FBI. Any new executive order must decide if the FBI is going to take on the duties of a domestic intelligence agency. Do we want undercover FBI agents spying on white supremacist and Islamist groups before they commit a crime, or wait until they commit one and then investigate them?
And finally we come to the grail of intelligence — information sharing. The FBI still cannot run an electronic trace in CIA databases, and vice versa. And forget the CIA or the FBI trying to get into NSA's raw databases. Trace requests are handled manually, with all the risks of something falling through the cracks. There are legal reasons databases cannot be combined, not to mention problems of protecting sensitive information. Still, if the national intelligence director were to land on a compromise and enshrine it in a new executive order it would be the most important intelligence reform since the 1947 National Security Act.
Robert Baer, a former CIA field officer assigned to the Middle East, is TIME.com's intelligence columnist and the author of See No Evil and, most recently, the novel Blow the House Down.