Under Secretary for Intelligence and Analysis Ken Wainstein Delivers Remarks at the Brookings Institution

Under Secretary for Intelligence and Analysis Ken Wainstein delivered the following address at the Brookings Institution:

Good morning, everybody. And let me just say thank you for that really very warm and kind introduction, and to the extent that, as you say, I'm one of a number of people who are focused on national security as a matter for our country and not for politics, I look around here and I see a number of people, many who fit that exact same profile and are committed to the same thing, so I feel very much at home here. And I am also glad to see some old friends who are here - members of our advisory board who are here, so it is really a pleasure to be here. Let me start off by thanking Ben and the Brookings Institution for giving me this opportunity to speak here today, but I also want to thank Ben and his colleagues at Brookings and also at Lawfare for the exceptional work that they do in the national security space. I think you all know how critical it is with the complexity of the national security challenges that we're facing today in this country, their very thoughtful analysis of those challenges and also the policy options that we have to deal with those challenges has never been more important than it is today.

I'd like to take some time today, as Ben said, to talk to you about the Office of Intelligence and Analysis at DHS and I'm going to discuss and give you an overview of the state of the Office of and how the office is evolving to meet the current Homeland Security threats while at the same time safeguarding American civil liberties, civil rights, and privacy. But before I launch into it, I want to take a moment to acknowledge that two weeks ago was the 22nd anniversary of 9/11 and the attacks that day. And I want to take a moment to acknowledge that anniversary as well as the lives that were lost and the lives that were changed forever by that tragedy. 9/11 is absolutely elemental to I&A and to its mission, so much so that every couple of months, our new entering class of I&A employees and I make the trek New York's National 9/11 Memorial and Museum and together we discuss the lessons of 9/11 and I have the honor of swearing them in as new employees of I&A.

9/11 was a watershed moment for our country. It laid bare our vulnerability, demonstrating that we were no longer protected by the bordering oceans, and highlighting the need to build defenses both internally and externally. In many ways, 9/11 was reminiscent of President Franklin Roosevelt's statement to the American people in 1940 during the Nazi occupation of much of Europe, when he warned that we were entering a new era, one in which, as FDR said, "so-called impregnable fortifications no longer exist."

This was certainly true in 1940, when the Nazi war machine easily surmounted all the defensive fortifications that were designed to contain them. It was tragically true in 2001 on 9/11 when terrorists evaded our defenses by infiltrating our country, attacking us from within with our own airplanes. And it is true - and, in many ways, even more true - today, as globalization and technological advancement are extending the reach of our adversaries, allowing them to threaten the homeland without regard to national borders.

We can clearly see this globalized threat in the areas that were highlighted in the annual Homeland Threat Assessment that I&A released just last week, and I commend it to you and it's a public document that lays the threats as we see them today. You can see in the HTA in the cyber efforts by which our adversaries can disrupt our critical infrastructure or interfere with our elections from anywhere on the globe; You can see it in the foreign malign influence operations orchestrated by Russia, the People's Republic of China and other nation state actors that are designed to exacerbate division and undermine our democratic institutions; You can see it in the online radicalization by foreign and domestic actors who use the digital ecosystem to recruit and mobilize others to ideologically-driven violence; and you can see it in the Mexican cartel activity that is trafficking fentanyl and other deadly drugs into our country and killing tens of thousands of Americans each year.

My boss Secretary Alejandro Mayorkas highlighted the implications of this globalized threat in his speech marking the 20th anniversary of DHS, where he remarked that "our homeland security has converged with our broader national security" - making the point that the traditional demarcation between foreign and homeland facing missions has now collapsed into a single continuum of authorities and operations necessary to protect the American people against the increasing reach and globalization of today's threat environment.

From its inception, I&A has played a critical role in the effort to meet that globalized threat environment. Our organization was established after 9/11 specifically to address the intelligence gaps that were exposed by those attacks. Numerous experts and entities - like the 9/11 Commission - examined and diagnosed the reasons for those gaps, and Congress undertook a number of consequential actions to empower us to better meet today's homeland threat.

Congress lowered the "wall" that had inhibited information sharing and coordination between our intelligence and law enforcement agencies. It codified a new definition of intelligence - "national intelligence" - to clarify that intelligence operations were no longer limited to "foreign intelligence" and that we needed a domestic intelligence capacity to detect domestic threats before they came to fruition, rather than simply investigating and prosecuting them after they harmed our people. And finally, Congress built a federal apparatus to develop this domestic intelligence capacity. In doing so, Congress considered a number of bureaucratic constructs, including one which would break off the FBI's intelligence function and create a separate domestic intelligence agency along the lines of Britain's MI5. Ultimately, Congress rejected the MI5 option, in large part out of civil liberties concerns, and instead established the Office of Intelligence & Analysis in DHS, which was tasked with sharing information with our federal and other homeland partners and with developing a national intelligence network with those partners under authorities and limitations designed specifically for the sensitivities of conducting intelligence in the homeland.

As currently authorized and constituted, I&A has three primary missions. They are: One, to build and maintain an intelligence program within the United States that can detect and prevent threats to the homeland. Two, to serve as an information-sharing bridge between federal law enforcement and intelligence agencies and our state, local, tribal, territorial, and private sector partners (SLTTP). And third, to operate with an intensely focused regard for privacy and civil liberties, which is a mission that is completely on par with the other two.

I will now take a few minutes to show how I&A has gone about pursuing those three missions over the years of its existence.

Mission 1: Establishing an Intelligence Program.

And further into that mission, Congress constituted I&A as an intelligence agency as a member in the federal Intelligence Community. I&A then developed the capabilities to operate in each stage of the intelligence cycle - the setting of intelligence requirements; the collection of intelligence related to those requirements; and the analysis, production, and dissemination of intelligence products out to our partners. I&A has done an admirable job of creating capabilities in each stage of that intelligence cycle.

Setting of intelligence requirements: Per its mandate to meet the intelligence needs of our state, local, territorial, tribal and private sector partners, I&A serves as the voice for those partners in the Intelligence Community's prioritization process, ensuring that their homeland security priorities are reflected in the operative requirements that direct the intelligence activities of the Intelligence community (IC) and DHS. These voices join those of the traditional intelligence consumers, such as the President, the Joint Chiefs of Staff, and Department and Agency leaders.

After setting the requirements is the collection of intelligence: I&A then collects intelligence related to those requirements. Importantly, however, it does that collection without the search and arrest powers or the covert collection authorities that some other IC agencies can employ. I&A's collection activities are already significantly limited by executive order, with strict requirements that we must be completely overt in our collection or collect from publicly available sources. Very tightly limited.

While observing these safeguards, we have collected some vitally important information in recent years:

In 2022, I&A located and shared the manifesto of the individual responsible for the mass shooting at a grocery store in Buffalo, providing key situational awareness to our partners as they tried to assess the situation. Earlier this year, I&A personnel worked with CISA to share information on an ongoing attempted ransomware attack targeting a university which subsequently helped to deter the attack. And just this summer, I&A officials partnered with CBP to interview individuals detained along the southern border, netting critical and detailed information about migrant smuggling operations being run by Mexican cartels and about specific individuals and organizations trafficking fentanyl into the United States. Those interviews resulted in referrals to law enforcement and more than 200 intelligence reports to our partners.

And in the last stage of the intelligence process, which is the analysis, production, and dissemination of intelligence products, I&A does that and analyzes the intelligence it collects or receives from other agencies and partners and generates intelligence products that are designed to provide our customers with "decisional advantage" over our adversaries. I&A's analytical products have always been the bread and butter of our work, and just last year I&A established a new office to focus on enhancing the quality and utility of those products. We are already seeing significant improvement, both in the quality of their content and in the positive feedback they are generating from our partners.

So that was Mission 1: The development of intelligence capacity in the United States. Mission 2: Building an Information Bridge to Our SLTTP Partners.

That second foundational mission to build that bridge to our partners was critical because that bridge was largely lacking before 9/11. Over the past twenty years, I&A has built that bridge across the country with both its systems and its partnerships.

On the systems side, it has developed the Homeland Security Intelligence Network - or HSIN - which provides on-line access to over 50,000 unclassified intelligence products for our partners around the country, both on their desktops and now with our new app on their mobile phones.

And, on the partnerships side, I&A has developed the operational relationships to break down the silos that have historically impeded coordination and information sharing. As Secretary Mayorkas often says, DHS is a "department of partnerships," and nowhere is that more true than at I&A. Throughout its existence, I&A has prioritized partnerships and has forged relationships across the country. To further that effort, we recently elevated the partnership function within the organization, creating a Deputy Under Secretary for Partnerships and bringing in Boston Police Department intel veteran Dave Carabin, who is already taking steps to expand and deepen our partnership network.

The last mission, and I want to spend some time on this one, is the protection of Privacy and Civil Liberties.

As I mentioned, I&A was designed with strictly limited powers and authorities, reflecting the sensitivities of its role as an intelligence organization in the domestic domain, where constitutional concerns are most pronounced. Among the members of the Intelligence Community, I like to say that I&A is the "kinder, gentler" intelligence agency, operating under strict limitations, as dictated by Executive Order 12333 and its Attorney General oversight guidelines.

Over the years, I&A has developed an internal oversight mechanism to ensure its operational adherence to those limitations. When compliance concerns were raised in I&A in 2020, my predecessor John Cohen and others took strong steps to enhance that oversight function. They doubled the number of intelligence oversight officers within I&A, they developed new and stronger training on privacy and civil liberties, and they brought on two ombudspersons, a regular ombuds and an intelligence ombuds focused on soliciting and addressing concerns about politicization or any other improper influence in our intelligence operations.

When I joined I&A in the summer of 2022, Secretary Mayorkas instructed me to conduct a "360-degree review" of the organization, with a focus on scrutinizing I&A's privacy and civil liberties protections. To do that review, we brought in three senior advisers, who are experts and longtime professionals in the intelligence community - CIA and Hill veteran Steven Cash, former DHS General Counsel Steve Bunnell, and former National Counterterrorism Center Director Russ Travers - who helped me in consulting with both outside intelligence veterans and experts and internal I&A personnel to get input on the direction of I&A. This 360-degree review is already resulting in privacy and civil liberties progress in a number of areas.

First in Collection: Much of this progress is focused on our collection operations, which makes sense because intelligence collection so directly implicates our privacy and constitutional rights. In our overt human collection program, we have undertaken an in-depth review of the rules and procedures to make sure they provide the level of governance needed for such a sensitive area of operations. Second in our open-source collection program, we are doing a similar review, with a focus on providing our collectors with clear guidance on the distinction between communications unrelated to a homeland threat that are constitutionally protected from collection, and those related to a homeland threat that are not. This is a crucial distinction, especially in relation to threats like domestic terrorism, where so much of the violence arises from political thought and speech that fall squarely within the core protections of our First Amendment.

The third thing we're doing in collections, in our field operations around the country, we have outside experts doing a complete review to provide strong centralized oversight of their operations. And finally, to fully enhance the supervision of our collection activities, we recently established a new collection division and appointed as its leader a highly respected 20-year veteran from the CIA who is bringing a heightened level of rigor to those operations.

We're seeing civil liberties and privacy progress in the area of analysis as well: We are bringing that same renewed oversight focus to those operations. For over a decade, our finished intelligence products have been subject to review for privacy and civil liberties by four different DHS offices - the Office of Civil Rights and Civil Liberties, the Privacy Office, the General Counsel's Office, and our Intelligence Oversight Office - before dissemination to our partners. At the direction of the Secretary last year, we are now expanding that progress to conduct equivalent reviews finished intelligence products produced by DHS components. That effort is well under way with the support of our new Intelligence Enterprise Program Office, which is tasked with coordinating and sharing best practices among the intelligence elements of DHS.

The last thing I want to mention in the civil liberties and privacy space is the Transparency and Oversight Program Office: To fully institutionalize all of this progress in privacy and civil liberties oversight, we recently established the Transparency and Oversight Program Office in the front office where I sit. It is led by a highly respected veteran DHS attorney, Andy Fausett, who reports directly to me. This new office consolidates all the oversight functions that were previously dispersed throughout the organization - including the eight members of the Privacy and Intelligence Oversight Office, the two ombudspersons and the personnel handling FOIA requests, congressional oversight and GAO and Inspector General inquiries - and consolidates and elevates those people and their role within the organization. With that new office in place and with Andy's appointment, we now have a strong voice for oversight and compliance in all of our front office deliberations and policy conversations.

These oversight enhancements all flow from our recognition that homeland security can be achieved only in conjunction with the protection of privacy and civil liberties. Some like to say that the two principles are at odds, that there is an inherent zero-sum trade-off between freedom and security. We at I&A don't buy that. We feel that both can and must be pursued at the same time. We cannot have a truly secure country if we ignore the values that made our nation strong in the first place.

As someone who spent the better part of 15 years as a federal prosecutor, this dual mission is not a foreign concept to me. Just as I had a sworn and equal duty as a prosecutor to both pursue conviction of the guilty and protect the rights of the accused, we at I&A have a sworn and equal duty to both prevent threats to homeland security and protect against incursions into our rights and privacy. With that duty in mind, my colleagues are executing on the founding vision behind our "kinder, gentler" intelligence agency, and are making transparency, civil liberties, and privacy the foundational elements of intelligence tradecraft in the domestic operating environment.

So, as you can see, we're working hard at I&A these days to execute on that founding vision. To gain support for that effort, we have been engaging with Congress and asking for the legal authorities we need to protect the homeland. As you may know, there have been efforts in recent years to limit our authorities in a way that would endanger our ability to perform our critical missions. We have been making the case strongly against these efforts. Just as our fellow agencies in the Intelligence Community are currently arguing - and authoritatively demonstrating - that renewal of the surveillance authority in Section 702 of the FISA Amendments Act is critical to national security, and I firmly agree with them on that. We have been arguing that the maintenance of our authorities is critical to prevent a return to the pre-9/11 state of unreadiness in the homeland.

In making that argument, however, we also acknowledge what was a clear lesson of 9/11 and the post-9/11 era which is that intelligence authorities need to be packaged with sufficient oversight to assure Congress and the American people that those authorities are being used appropriately. With that lesson in mind, we are asking Congress both for the authorities we need to do our job and also for the oversight requirements that will secure the public's acceptance of those authorities and make those authorities sustainable into the future. We are hopeful that the wisdom of that approach - along with the commitment to civil liberties reflected in the initiatives and reforms I have just recited - will persuade Congress to entrust us with the balance of oversight and authorities we need to protect the homeland.

So, that is the state of I&A today. In short, it is in a state of positive change - positive change as it adapts to the evolving threat environment and to the recent reforms to our organization. At the same time, I&A is exhibiting a very important attribute - a willingness to change and to improve. As we all know, it is not easy for a government organization to change. But that is exactly what this organization is doing at this point in its history. And it is one of the many reasons I am proud to be part of this organization and to be counted among the I&A professionals who do so much to protect our homeland security each and every day.

Thank you very much.