Congressional Record: February 5, 2004 (Senate)
Page S611-S613


  Mrs. FEINSTEIN. Madam President, I thank the chairman of the 
Intelligence Committee for his remarks. I think he well and ably set 
out the structure of what we are doing.
  I also thank Senator Lott for his remarks, particularly the remarks 
that said we should work together. That has been one of the problems. I 
want to go into that.
  But before I do, I would like particularly to thank the Senator from 
Florida, the former chairman of the Senate Select Committee on 
Intelligence, for his three speeches. I had the privilege of previewing 
these. I think he delivered them eloquently and forcefully. I want him 
to know I very much appreciate his careful scholarship and his reasoned 
approach, which mark not only his remarks here but also his tenure as 
chairman of the Intelligence Committee. He has presided over what 
continues to be one of the most difficult chapters in the history of 
our intelligence community.
  Senator Lott has just said, with considerable spark, that we should 
work together. I could not agree more.
  Second, the committee has been prevented from examining the use of 
intelligence by policymakers. This I believe is a real problem. Our own 
resolution sets out that we should be able to examine the use of 
intelligence by policymakers and administration officials. To a great 
extent this is the reason we are here today creating an independent 
commission which will have more authority than the elected officials of 
this Government have.
  I learned this morning that the independent commission that is 
functioning today has access to the President's daily intelligence 
briefs. The Intelligence Committee of the Senate does not have access 
to the President's daily intelligence briefs, nor have we had, to the 
best of my knowledge, through this investigation.
  I was very pleased to see that over the past weekend the President 
has apparently reversed course, accepting the recommendations from Dr. 
Kay, from Members of the Senate, and from a host of experts to the 
effect that only a full and outside investigation will be able to be 
both credible and acceptable to the world at large.
  I did not believe so before. I voted against the Corzine resolution 
when it came up before. I changed my mind because if we, the elected 
representatives, are not permitted to look into the use of intelligence 
as provided by S. Res. 400, and it has to be an outside committee that 
will have that right, so be it. But I find it to be really 
idiosyncratic, because I believe the full power should be vested in the 
officials of our Government, of which the Senate plays a very major 
role, not necessarily always an independent committee, as it appears to 
be happening.
  Such a commission, though, will be able to remove some of the 
partisanship that has infected this issue and, I hope, provide a 
reasoned, careful, and credible assessment. I am concerned that the 
President has let it be known he intends to appoint all of the members 
of the commission and carry this out through Executive Order. This I 
believe will adversely affect the commission's independence.
  Let me give you an example. Many believe the handling of the National 
Commission on Terrorist Attacks on the United States--that is a 
Commission now functioning--headed by Gov. Thomas Keane and Congressman 
Lee Hamilton, is a case in point. There have been many reports that 
chronic delays in providing documents and foot dragging in arranging 
interviews have frustrated the efforts of this Commission to complete 
its work within the timeline the White House insisted upon.
  The Commission is asking for an extension of time and Senators McCain 
and Lieberman have introduced legislation to do so. I understand the 
President yesterday agreed to extend this timetable to July 26 of this 
year. I strongly believe the Commission should be given whatever time 
it needs to complete its examination and we, in fact, should pass the 
McCain-Lieberman bill.
  Nevertheless, it is my hope that a commission, whether it is created 
by Executive order or by statute, will be able to answer four 
  The first is: Were the prewar intelligence assessments of the dangers 
posed by Saddam Hussein's regime wrong? This is not as simple a 
question as it seems, for in the months prior to the invasion of Iraq 
these assessments had two separate, equally important parts. The first 
is whether Iraq had the capability to place the United States in such 
danger as to warrant the unprecedented step of a unilateral preemptive 
invasion of another sovereign nation. Just two days ago Secretary 
Powell, asked if he would have recommended an invasion knowing Iraq had 
no prohibited weapons, replied: ``I don't know because it was the 
stockpile that presented the final little piece that made it more of a 
real and present danger and threat to the region and to the world.'' He 
added: ``The absence of a stockpile changes the political calculus; it 
changes the answer you get.''
  Second, was such a threat imminent or was it grave and growing? 
Critical to this debate during the Summer and Fall of 2002 was the 
immediacy of the threat which supported the argument that we needed to 
attack quickly, could not wait to bring traditional allies aboard or to 
try other options short of invasion.
  The second question is: Whether the intelligence assessments were bad 
as well as wrong.
  This requires a fine distinction between an intelligence assessment 
that is wrong, and one that is bad. Intelligence assessments are often 
wrong, for by their nature they are an assessment of the probability 
that a future event will take place. But wrong does not always mean 
bad. Sometimes an intelligence assessment follows the right logic and 
fairly assesses the amount, credibility and meaning of collected data, 
and still is wrong. What the independent commission needs to do is to 
separate these two different, but related, issues.
  The third question is to determine--if the intelligence assessment 
was both bad and wrong--to what degree and why?
  Did the intelligence community negligently depart from accepted 
standards of professional competence in performing its collection and 
analytic tasks?
  Was the intelligence community subject to pressures, personal or 
structural, which caused it to reach a wrong result through bad 
  Were the ordinary internal procedures by which intelligence is 
subject to peer review properly carried out?
  A commission must delve deeply into the mechanisms of intelligence 
analysis to reach these answers.
  The fourth and final question is whether the intelligence assessments 
reached by the intelligence community, whether right or wrong, good or 
bad, were fairly represented to the Congress and to the American 
people. Did administration officials speaking in open and closed 
session to members of Congress accurately represent the intelligence 
product that they were relying upon? Were public statements, speeches 
and press releases, fair and accurate? This is the cauldron boiling 
below the surface.
  This final question is particularly grave, because it touches upon 
the constitutionally critical link between the executive and 
legislative branches. The Founders knew what they were doing

[[Page S612]]

when they developed a shared responsibility for war making--only 
Congress can declare war, with the President, as Commander in Chief, 
conducting it--and the need is vital for Members of Congress to have 
fairly presented, timely and accurate intelligence when they consider 
whether to invest the President with the authority as Commander in 
Chief to put American lives, as well as those of innocent civilians, at 
  My vote, in particular, was based largely on intelligence, and 
statements about that intelligence, related to Saddam's certain 
possession of chemical and biological weapons and the probability or 
likelihood, that he had both weaponized and deployed them. Also, the 
fact that he had violated the U.N. missile restrictions and possessed a 
delivery system for a chemical or biological warhead, and could deliver 
that warhead 600 miles, threatening other Middle Eastern nations or 
perhaps, from offshore, the United States.
  There were many statements made by the administration that when 
combined with the intelligence created an overwhelming case, I think 
particularly for me and for many others. I don't think there would have 
been 77 votes in the Senate to authorize use of force had these 
statements not been made.
  Let me give just five examples of such statements:
  Secretary of State Powell, on September 8, 2002, said on Fox News 
Sunday: ``There is no doubt that he has chemical weapons stocks.'' He 
also said: ``With respect to biological weapons, we are confident that 
he has some stocks of those weapons, and he is probably continuing to 
try to develop more.''
  President Bush, on September 12, 2002, said in his address to the 
U.N. General Assembly: ``Right now, Iraq is expanding and improving 
facilities that were used for the production of biological weapons.''
  President Bush, in his October 7, 2002, address also said: ``We know 
that the regime has produced thousands of tons of chemical agents, 
including mustard gas, sarin nerve gas, and VX nerve gas.''
  Secretary Powell, again in his February 5, 2003, address to the U.N. 
Security Council, said:

       Our conservative estimate is that Iraq today has a 
     stockpile of between 100 and 500 tons of chemical weapons 
     agent. That is enough agent to fill 16,000 battlefield 
     rockets. Even the low end of 100 tons of agent would enable 
     Saddam Hussein to cause mass casualties across more than 100 
     square miles of territory, an area nearly 5 times the size of 
     Manhattan . . . when will we see the rest of the submerged 
     iceberg? Saddam Hussein has chemical weapons. Saddam Hussein 
     has used such weapons. And Saddam Hussein has no compunction 
     about using them again, against his neighbors and against his 
     own people.

  What a strong statement--a statement that has to be backed up with 
almost certain facts.
  President Bush said, on October 2, 2002, in Cincinnati: ``Facing 
clear evidence of peril, we cannot wait for the final proof, the 
smoking gun that may come in the form of a mushroom cloud.''
  I remember hearing this speech, which made a deep impression upon me.
  The President of the United States said this. Members of the 
Intelligence Committee are looking at intelligence. When combined with 
the President's statements, the statements of the Secretary of State 
and the statements of the Vice President, how can you not believe them? 
That is why this committee's investigation into the use of intelligence 
which we have been prohibited from entering into is so important that 
we do. We are the official people's representatives on this Committee 
on Intelligence, and to cut us out from one part of an investigation 
that our own resolutions say we should look at, I think, is 
  When all of this is combined with the intelligence provided to 
Congress, the aerial photographs of what was believed to be chemical 
weapons plants, and the National Intelligence Estimate of October 2002, 
this information created an overwhelming belief that there was an 
imminent threat to our Nation, and a dominant majority of the Senate of 
the United States voted for the resolution authorizing the use of 
  You can imagine my surprise that after more than 1,500 sites--top 
priority sites--have been searched and millions of dollars spent on Dr. 
Kay's special investigation, no weapons have been found. And Dr. Kay 
submits to us that he does not believe any will be found.
  So the reality of what has been learned in Iraq versus the 
intelligence presented to us causes enormous concern.
  Again, I truly believe that had it not been for the strength of the 
intelligence and statements made to Congress, including the Senate 
Select Committee on Intelligence, a vote for regime change alone, 
without the belief of an imminent threat, would not have had the 
majority it did, may well not have passed, and if it did, most likely 
would have passed with a bare majority.
  These statements and the intelligence upon which they were based now 
appear to be unsupported by the available evidence, and have been 
contradicted by Dr. Kay's findings. A commission must look closely at 
these and other similar statements.
  Even as the commission moves forward, I believe Congress should 
undertake two related tasks. The first is to carefully review the 
implications of the President's so-called preemption doctrine. I have 
strongly criticized this policy since its inception. Although, clearly, 
the United States will always retain the right to defend itself in 
specific circumstances from a real, imminent threat, preemption as a 
doctrine departs from core American values. We must be strong in 
defense but not allow this country to become an aggressive nation of 
  I also believe the doctrine runs counter to 50 years of bipartisan 
American foreign policy, which is based on the belief that 
international law, multilateral agreements, and diplomacy are also 
effective means to promote and to protect American security.
  Finally, and on a more fundamental and practical level, the doctrine 
requires a faith in the perfectibility of intelligence analysis that is 
simply not attainable. Preemption inherently requires us to be right 
every time on the nature and imminence of threats.
  Unfortunately, as every senior intelligence official to whom I have 
spoken tells me, intelligence is rarely going to be that accurate, for 
the very reason I have mentioned earlier it is, at its heart, 
probability analysis.
  This past weekend, Dr. Kay spoke to this issue, saying, and I quote, 
``if you cannot rely on good, accurate intelligence that is credible to 
the American people and to others abroad, you certainly can't have a 
policy of preemption.''
  The preemptive concept bets everything on one roll of the dice and we 
had better be right every time.
  I spoke about this when the doctrine was announced and offered the 
hypothetical of a preemptive attack based on intelligence that was 
wrong, that results in destruction and death, and undermines American 
credibility and our position around the world. The hypothetical, so 
far, at least, is true in Iraq.
  I hope the President and his advisers will reconsider the ill-advised 
adoption of preemption in light of what we have already learned from 
its first exercise.
  The second thing the Congress should do, and do now, is begin the 
process of restructuring the intelligence community and begin by taking 
a single, critical step: Pass legislation creating a Director of 
National Intelligence and change from the current situation where a 
single man is both head of the entire intelligence community--with its 
15 departments and agencies--and the head of the Central Intelligence 
Agency. It is an impossible job with insufficient authority.
  I have introduced legislation that would accomplish this in both the 
107th and 108th Congresses. Each time I stood on this floor to urge its 
passage and each time I expressed my belief that the current structure 
could result in a colossal intelligence failure.
  In June of 2002, I said: ``This legislation creates the Director of 
National Intelligence to lead a true intelligence community and to 
coordinate our intelligence and anti-terrorism efforts and help assure 
the sort of communication problems that prevented the various elements 
of our intelligence community from working together effectively before 
September 11 never happen again.''

[[Page S613]]

  I fear it has happened again. Once more, I stand in the Senate to 
urge the passage of the legislation.
  It has to be pointed out that our present intelligence structure for 
the most part is based on a post-World War II, cold-war environment. It 
is not suited for the new challenges of asymmetric threats and non-
state entities, as well as quite possibly from states also involved in 
terrorism. We have a Soviet-era intelligence community in a post-Soviet 
  We need to have a Director of National Intelligence now more than 
ever and we should not wait any longer for the results of another 
commission. I remind my colleagues that creating a Director of National 
Intelligence was the very first recommendation of the bipartisan Joint 
Inquiry into the Attacks on September 11, a recommendation contained in 
a report signed by every member of the Intelligence Committees of the 
Senate and the House. Senator Graham spoke earlier about this 
provision, and I agree with his explanation of the pressing need for 
the change.

  Such a position, if created today, would provide substantial 
improvement in the function and quite possibly the restructuring of the 
more than one dozen agencies and departments. It would give one person, 
appointed by the President for a 10-year term, the statutory authority 
to determine strategies across the board, to set priorities, and to 
assign staff and dollars across departments and agencies.
  It is my understanding the Senate Select Committee on Intelligence 
will take up this legislation in 2004, I am told, in April. It is my 
hope that working together we can include this legislation as part of 
the Intelligence Authorization Act for fiscal year 2005 and make it law 
this Spring.
  As I have said earlier, the so-called ``bipartisan'' investigation by 
the Senate Select Committee on Intelligence has had little effective 
participation by Democratic Senators, or their staffs. In fact, in many 
ways had the Intelligence Committee been able to carry out its 
responsibilities, as set for in Senate Resolution 400, much of the 
debate on the floor on this issue would be unnecessary. Nonetheless, I 
look forward to this afternoon when the report will be made available 
to committee members.
  I deeply believe that the Senate Select Committee on Intelligence 
should turn its attention to its core responsibilities--conducting 
vigorous oversight of the intelligence community, and carefully 
considering legislation to make necessary changes. To that end I urge 
Chairman Roberts to take up legislation restructuring the Intelligence 
Community, including, but not limited to, my bill to create a Director 
of National Intelligence, hold comprehensive hearings on these 
proposals, and report out legislation in time for inclusion in this 
year's Intelligence Authorization bill.
  As I have said earlier, my vote in favor of the resolution to 
authorize the use of force in Iraq was perhaps the most difficult, and 
consequential, vote of my career. It was a decision based on hours of 
intelligence briefings from administration and intelligence officials, 
plus the classified and unclassified versions of the National 
Intelligence Estimates. My decision was in part based on my trust that 
this intelligence was the best our Nation's intelligence services could 
offer, untainted by bias, and fairly presented. It was a decision made 
because I was convinced that the threat from Iraq was not only grave 
but imminent.
  Because of my vote, and the votes of the 76 other Senators who voted 
for the resolution, our troops are stuck in Iraq, under fire, and 
taking casualties. Our armed forces are stretched thin; we have 
antagonized our enemies and alienated many of our closest allies.
  In the post-9/11 world, a world where we confront asymmetric threats 
every day, intelligence plays a key role informing the policy-making 
process. The administration bears primary responsibility for our 
intelligence apparatus--ensuring that it works well, is honest, and is 
properly focused. The administration is also responsible for honestly 
and fairly presenting the results of the intelligence process to the 
Congress, informing, for instance our vote on the resolution to 
authorize force.
  I now fear that the threat was not imminent, that there were other 
policy options, short of war, that would have effectively met the 
threat posed by Saddam Hussein.
  And that is why a full investigation of the prewar intelligence is so 
  The PRESIDING OFFICER. The Senator from Texas.
  Mrs. HUTCHISON. Madam President, I would like to be notified when I 
have used 10 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.