Senate Report 114-83 - INTELLIGENCE AUTHORIZATION ACT FOR FISCAL YEAR 2016
[Senate Report 114-83]
[From the U.S. Government Publishing Office]
Calendar No. 141
114th Congress } { Report
SENATE
1st Session } { 114-83
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INTELLIGENCE AUTHORIZATION ACT FOR FISCAL YEAR 2016
_______
July 16, 2015.--Ordered to be printed
_______
Mr. Burr, from the Select Committee on Intelligence,
submitted the following
R E P O R T
together with
ADDITIONAL VIEWS
[To accompany S. 1705]
The Select Committee on Intelligence, having considered an
original bill (S. 1705) to authorize appropriations for Fiscal
Year 2016 for intelligence and intelligence-related activities
of the United States Government, the Community Management
Account, and the Central Intelligence Agency Retirement and
Disability, and for other purposes, reports favorably thereon
and recommends that the bill do pass.
Classified Annex to the Committee Report
On February 2, 2015, acting pursuant to Section 364 of the
Intelligence Authorization Act for Fiscal Year 2010 (Public Law
111-259), the Director of National Intelligence (DNI) publicly
disclosed that the President's aggregate request for the
National Intelligence Program (NIP) for Fiscal Year 2016 is
$53.9 billion. Other than for limited unclassified
appropriations, primarily the Intelligence Community Management
Account, the classified nature of United States intelligence
activities precludes any further disclosure, including by the
Committee, of the details of its budgetary recommendations.
Accordingly, the Committee has prepared a classified annex to
this report that contains a classified Schedule of
Authorizations. The classified Schedule of Authorizations is
incorporated by reference in the Act and has the legal status
of public law. The classified annex is made available to the
Committees on Appropriations of the Senate and the House of
Representatives and to the President. It is also available for
review by any Member of the Senate subject to the provisions of
Senate Resolution 400 of the 94th Congress (1976).
Section-by-Section Analysis and Explanation
The following is a section-by-section analysis and
explanation of the Intelligence Authorization Act for Fiscal
Year 2016 that is being reported by the Committee.
TITLE I--BUDGET AND PERSONNEL AUTHORIZATIONS
Section 101. Authorization of appropriations
Section 101 lists the United States Government departments,
agencies, and other elements for which the Act authorizes
appropriations for intelligence and intelligence-related
activities for Fiscal Year 2016.
Section 102. Classified Schedule of Authorizations
Section 102 provides that the details of the amounts
authorized to be appropriated for intelligence and
intelligence-related activities and the applicable personnel
levels by program for Fiscal Year 2016 are contained in the
classified Schedule of Authorizations and that the classified
Schedule of Authorizations shall be made available to the
Committees on Appropriations of the Senate and House of
Representatives and to the President.
Section 103. Personnel ceiling adjustments
Section 103 is intended to provide additional flexibility
to the DNI in managing the civilian personnel of the
Intelligence Community (IC). Section 103 provides that the DNI
may authorize employment of civilian personnel (expressed as
full-time equivalent positions) in Fiscal Year 2016 in excess
of the number of authorized positions by an amount not
exceeding three percent of the total limit applicable to each
IC element under Section 102. The DNI may do so only if
necessary to the performance of important intelligence
functions, and must notify the congressional intelligence
committees in writing at least 15 days prior to each exercise
of this authority.
Section 104. Intelligence Community Management Account
Section 104 authorizes appropriations for the Intelligence
Community Management Account (ICMA) of the ODNI and sets the
authorized personnel levels for the elements within the ICMA
for Fiscal Year 2016.
TITLE II--CENTRAL INTELLIGENCE AGENCY RETIREMENT AND DISABILITY SYSTEM
Section 201. Authorization of appropriations
Section 201 authorizes appropriations in the amount of
$514,000,000 for Fiscal Year 2016 for the Central Intelligence
Agency (CIA) Retirement and Disability Fund.
TITLE III--GENERAL INTELLIGENCE COMMUNITY MATTERS
Section 301. Increase in employee compensation and benefits authorized
by law
Section 301 provides that funds authorized to be
appropriated by this Act for salary, pay, retirement, and other
benefits for federal employees may be increased by such
additional or supplemental amounts as may be necessary for
increases in compensation or benefits authorized by law.
Section 302. Restriction on conduct of intelligence activities
Section 302 provides that the authorization of
appropriations by the Act shall not be deemed to constitute
authority for the conduct of any intelligence activity that is
not otherwise authorized by the Constitution or laws of the
United States.
Section 303. Notification of appointment and separation of senior level
personnel of the intelligence community
Section 303 requires the DNI to establish a policy to
ensure that the head of each appropriate element of the
Intelligence Community shall notify the appropriate
congressional committees, quarterly, of each appointment of an
individual to a senior level position, separation from a senior
level position, or reassignment within the senior level
framework, during the previous 3-month period.
A notification of appointment shall include a summary of
the significant previous employment and accomplishments of the
individual, such as a career biography and any academic degrees
earned, and any other information appropriate to demonstrate
that the individual is well-qualified to meet the needs of the
intelligence community and that there is no significant and
credible information to suggest that the individual is unfit or
unqualified for such a position.
A notification of separation shall include the effective
date of an individual's separation from a senior level
position.
TITLE IV--MATTERS RELATING TO ELEMENTS OF THE INTELLIGENCE COMMUNITY
Subtitle A--Director of National Intelligence
Section 401. Appointment and confirmation of the National
Counterintelligence Executive
Section 401 makes subject to Presidential appointment and
Senate confirmation, the Executive Branch position of National
Counterintelligence Executive (NCIX), which was created by the
2002 Counterintelligence Enhancement Act. Effective December
2014, the NCIX was also dual-hatted as the Director of the
National Counterintelligence and Security Center.
Section 402. Inclusion of Inspector General of the Intelligence
Community in Council of Inspectors General on Integrity and
Efficiency
Section 402 affirms that the Inspector General of the
Intelligence Community (ICIG) is a member of the Council of the
Inspectors General on Integrity and Efficiency.
Section 403. Provision of information and assistance to Inspector
General of the Intelligence Community
Section 403 amends the National Security Act of 1947 to
clarify the ICIG's authority to seek information and assistance
from state and local governmental agencies or units thereof in
addition to federal agencies.
Subtitle B--Central Intelligence Agency
Section 411. Analytic Objectivity Review
The ODNI's Analytic Integrity and Standards (AIS) office
was established in response to the requirement in the
Intelligence Reform and Terrorism Prevention Act of 2004
(IRTPA) for the designation of an entity responsible for
ensuring that the Intelligence Community's finished
intelligence products are timely, objective, independent of
political considerations, based upon all sources of available
intelligence, and demonstrative of the standards of proper
analytic tradecraft.
Consistent with responsibilities prescribed under IRTPA,
Section 411 requires the DNI to assign the AIS Chief, in
consultation with the Senior Analytic Service at the CIA, with
conducting a review of finished intelligence products produced
by the CIA to assess whether the reorganization of the Agency,
announced publicly on March 6, 2015, has resulted in any loss
of analytic objectivity. The report is due two years from the
date that the reorganization was announced, March 6, 2017.
Section 412. Authorities of the Inspector General for the Central
Intelligence Agency
Section 412 amends the CIA Act of 1949 to make a technical
correction to Section 17 and to clarify the CIA Inspector
General's authority to seek information and assistance from
state and local governmental agencies or units thereof, in
addition to federal agencies, and to make technical changes to
the Inspector General's personnel authorities in the same
paragraph.
TITLE V--MATTERS RELATING TO FOREIGN COUNTRIES
Subtitle A--Matters Relating to Russia
Section 501. Notice of deployment or transfer of Club-K container
missile system by the Russian Federation
Section 501 requires the DNI to submit written notice to
the appropriate congressional committees if the Intelligence
Community receives intelligence that the Russian Federation has
deployed, or is about to deploy, the Club-K container missile
system through the Russian military, or transferred or sold, or
intends to transfer or sell, such system to another state or
non-state actor.
Section 502. Assessment on the funding of political parties and non-
governmental organizations by the Russian Federation
Section 502 requires the DNI to submit an Intelligence
Community assessment to the appropriate congressional
committees concerning the funding of political parties and non-
governmental organizations in the former Soviet States and
Europe by the Russian Federation and the Russian Federation
security and intelligence services since January 1, 2006, not
later than 180 days after the enactment of the Fiscal Year 2016
Intelligence Authorization Act.
Section 503. Assessment on the use of political assassinations as a
form of statecraft by the Russian Federation
Section 503 requires the DNI to submit an Intelligence
Community assessment concerning the use of political
assassinations as a form of statecraft by the Russian
Federation to the appropriate congressional committees, not
later than 180 days after the enactment of the Fiscal Year 2016
Intelligence Authorization Act.
Subtitle B--Matters Relating to Other Countries
Section 511. Report of resources and collection posture with regard to
the South China Sea and East China Sea
Section 511 requires the DNI to submit to the appropriate
congressional committees an Intelligence Community assessment
on Intelligence Community resourcing and collection posture
with regard to the South China Sea and East China Sea, not
later than 180 days after the enactment of the Fiscal Year 2016
Intelligence Authorization Act.
Section 512. Replacement of locally employed staff serving at United
States diplomatic facilities in Cuba
Section 512 requires the Secretary of State, not later than
one year after the date of the enactment of this Act, to ensure
that every supervisory position at a United States diplomatic
facility in Cuba is occupied by a citizen of the United States
who has passed a thorough background check. Further, not later
than 180 days after the date of the enactment of this Act, the
provision requires the Secretary of State, in coordination with
other appropriate government agencies, to submit to the
appropriate congressional committees a plan to further reduce
the reliance on locally employed staff in United States
diplomatic facilities in Cuba. The plan shall, at a minimum,
include cost estimates, timelines, and numbers of employees to
be replaced.
Section 513. Inclusion of sensitive compartmented information
facilities in United States diplomatic facilities in Cuba
Section 513 requires that each United States diplomatic
facility in Cuba that is constructed, or undergoes a
construction upgrade, be constructed to include a sensitive
compartmented information facility.
Section 514. Report on use by Iran of funds made available through
sanctions relief
Section 514 requires the DNI, in consultation with the
Secretary of the Treasury, to submit to the appropriate
congressional committees a report assessing the monetary value
of any direct or indirect form of sanctions relief Iran has
received since the Joint Plan of Action (JPOA) entered into
effect, and how Iran has used funds made available through such
sanctions relief. This report shall be submitted every 180 days
while the JPOA is in effect, and not later than 1 year after an
agreement relating to Iran's nuclear program takes effect, and
annually thereafter while that agreement remains in effect.
TITLE VI--GENERAL PROVISIONS
Section 601. Intelligence oversight exception for contractual non-
disclosure provisions
Section 601 provides that no provision of a contract with
an element of the Intelligence Community that prohibits the
disclosure of information may be construed to prohibit the
Intelligence Community from providing information to the
congressional intelligence committees.
The section would also preclude as a cause of action the
provision of information pertinent to or arising from the
contractual agreement, consistent with Congressional reporting
obligations.
Section 602. Notification of changes to retention of call detail record
policies
Section 602 requires the DNI to notify the appropriate
congressional committees in writing not later than 15 days
after learning that an electronic communications service
provider that generates call detail records in the ordinary
course of business has changed its policy on the retention of
such call details records to result in a retention period of
less than 18 months.
Section 603. Requirement to report terrorist activities and the
unlawful distribution of information relating to explosives
Section 603 requires companies providing an interstate
electronic communication service or remote computing service to
the public to report to appropriate authorities as determined
by the Attorney General when they know their technology is
being used to carry out a potential terrorist attack, similar
to the process required by existing federal law in cases of
child pornography.
Section 604. Broadening the scope of Office of the Director of National
Intelligence tradecraft review
As required by IRTPA, ODNI's AIS office conducts a regular,
detailed review of finished intelligence products, aimed at
continually monitoring the quality of the Intelligence
Community's analytic work product.
Section 604 amends section 1019 of IRTPA by broadening
reviews of finished intelligence products conducted by AIS to
include an explanation of how substantially similar,
contemporaneous intelligence products are distinct in terms of
source material, timeframe, methodology, or other
distinguishing analytic characteristic.
Section 605. Strategy for comprehensive interagency review of the
United States national security overhead satellite architecture
Section 605 requires the DNI, in collaboration with the
Secretary of Defense, and the Chairman of the Joint Chiefs of
Staff, to develop a strategy, with milestones and benchmarks,
to ensure that there is a comprehensive interagency review of
policies and practices for planning and acquiring national
security satellite systems and architectures, including the
capabilities of commercial systems and partner countries,
consistent with the National Space Policy issued on June 28,
2010. Where applicable, this strategy shall account for the
unique missions and authorities vested in the Department of
Defense and the Intelligence Community.
Section 606. Unauthorized dealings in special nuclear material
Section 606 includes the DNI among the senior government
officials with whom the Secretary of Energy must consult, prior
to issuing authorization to directly or indirectly engage or
participate in the development or production of any special
nuclear material outside the United States, by amending the
Atomic Energy Act of 1954 (42 U.S.C. 2077).
Section 607. Enhancing government personnel security programs
Section 607 directs the DNI to develop and implement a plan
for eliminating the backlog of overdue periodic investigations,
and further requires the DNI to direct each agency to implement
a program to provide enhanced security review to individuals
determined eligible for access to classified information or
eligible to hold a sensitive position.
These enhanced personnel security programs, which will
integrate information relevant to suitability for access to
classified information, and be conducted at least 2 times every
5 years, are to commence not later than 5 years after the date
of enactment of the Fiscal Year 2016 Intelligence Authorization
Act, or the elimination of the backlog of overdue periodic
investigations, whichever occurs first.
Section 608. Technical amendments relating to pay under title 5, United
States Code
Section 608 amends 5 U.S.C. Sec. 5102(a)(1) to expressly
exclude the ODNI from the provisions of chapter 51 of title 5,
relating to position classification, pay, and allowances for
General Schedule employees, which do not apply to ODNI by
virtue of the National Security Act. Section 102A(m) of the
National Security Act of 1947 (50 U.S.C. Sec. 3024) provides
that the DNI may ``exercise with respect to the personnel of
the ODNI any authority of the Director of the Central
Intelligence Agency . . . under the Central Intelligence Agency
Act of 1949 . . . and other applicable provisions of law, as of
December 17, 2004.'' As the exclusion of the CIA from the
definition of an agency in chapter 51 was in effect as of that
date, the ODNI is also excluded from chapter 51 by section
102A(m) of the National Security Act. This proposal would have
no substantive effect except to align the two statutes.
Committee Comments
Declassification review of video of the 2012 Benghazi Terrorist Attacks
Numerous investigations have been conducted regarding the
2012 terrorist attack against U.S. facilities in Benghazi. This
Committee produced one of the first declassified Congressional
reports and continues to believe that the public should have
access to information about the attacks, so long as it does not
jeopardize intelligence sources and methods.
The closed circuit television videos from the Temporary
Mission Facility (TMF) captured some of the activity that took
place at the State Department facility on September 11, 2012,
and their release would contribute to the public's
understanding of the event without compromising sources or
methods.
Therefore, the Committee directs the DNI, or the
appropriate federal official, to conduct a declassification
review and to facilitate the release to the public of the
declassified closed-circuit television videos of the September
11, 2012 terrorist attack on the TMF in Benghazi, Libya,
consistent with the protection of sources and methods, not
later than 120 days after the enactment of this Act.
Committee Action
On June 24, 2015, a quorum being present, the Committee met
to consider the bill and amendments. The Committee took the
following actions:
Votes on amendments to committee bill, this report, and the classified
annex
By unanimous consent, the Committee moved to consideration
of the Chairman and Vice Chairman Mark and the classified
annex.
The Committee moved to consideration en bloc of four
amendments by Senator Burr and Senator Feinstein that made
changes to the classified annex, an amendment by Senator Rubio
that made changes to the classified annex, and five amendments
by Senator Warner that made changes to the classified annex. By
voice vote, the Committee agreed en bloc to the amendments.
The Committee moved to consideration en bloc of an
amendment by Senator Rubio that requires a report on the use by
Iran of funds made available through sanctions relief, an
amendment by Senator Collins that enhances government personnel
security programs, and an amendment by Senator Cotton that
requires that the DNI be consulted before the Department of
Energy issues authorization to directly or indirectly engage or
participate in the development or production of any special
nuclear material outside the United States. By voice vote, the
Committee agreed en bloc to the amendments.
The Committee moved to consideration of an amendment by
Senator Feinstein that requires the DNI to establish a policy
to ensure the appropriate congressional committees are
notified, quarterly, of each appointment of an individual to or
separation from a senior level position in the IC during the
previous 3-month period. The amendment, as modified by Senator
Feinstein and Senator Collins, was adopted by voice vote.
The Committee moved to consideration of an amendment by
Senator Cotton that made changes to the classified annex. The
amendment, as modified by Senator Cotton, was adopted by voice
vote.
The Committee moved to consideration of an amendment by
Senator Warner that made changes to the classified annex. The
amendment, as modified by Senator Warner, was adopted by voice
vote.
The Committee authorized the staff to make technical and
conforming changes in the bill, report, and classified annex,
following the completion of the mark-up.
Vote to report the committee bill
The Committee voted to report the bill, as amended, by a
vote of 15 ayes to 0 noes. The votes in person or by proxy were
as follows: Chairman Burr--aye; Senator Risch--aye; Senator
Coats--aye; Senator Rubio--aye; Senator Collins--aye; Senator
Blunt--aye; Senator Lankford--aye; Senator Cotton--aye; Vice
Chairman Feinstein--aye; Senator Wyden--aye; Senator Mikulski--
aye; Senator Warner--aye; Senator Heinrich--aye; Senator King--
aye; and Senator Hirono--aye.
Compliance With Rule XLIV
Rule XLIV of the Standing Rules of the Senate requires
publication of a list of any ``congressionally directed
spending item, limited tax benefit, and limited tariff
benefit'' that is included in the bill or the Committee report
accompanying the bill. Consistent with the determination of the
Committee not to create any congressionally directed spending
items or earmarks, none have been included in the bill, the
report to accompany it, or the classified schedule of
authorizations. The bill, report, and classified schedule also
contain no limited tax benefits or limited tariff benefits.
Estimate of Costs
Pursuant to paragraph 11(a)(3) of rule XXVI of the Standing
Rules of the Senate, the Committee deems it impractical to
include an estimate of the costs incurred in carrying out the
provisions of this report due to the classified nature of the
operations conducted pursuant to this legislation. On June 26,
2015, the Committee transmitted this bill to the Congressional
Budget Office and requested an estimate of the costs incurred
in carrying out the unclassified provisions.
Evaluation of Regulatory Impact
In accordance with paragraph 11(b) of rule XXVI of the
Standing Rules of the Senate, the Committee finds that no
substantial regulatory impact will be incurred by implementing
the provisions of this legislation.
ADDITIONAL VIEWS OF SENATORS WYDEN, HEINRICH, AND HIRONO
We appreciate the bipartisan work that our colleagues have
put into assembling this bill. We look forward to further
discussion as it moves forward, especially on those provisions
that have not yet been subject to public debate. We are
particularly interested to hear from Internet and
communications companies regarding Section 603, which would
require these companies to notify authorities if they become
aware of terrorist activity. Since this provision expressly
does not require these companies to monitor their users, it
appears to us that this would not actually change the current
practices of these companies, and we will confirm that point
with those companies before the full Senate considers this
legislation on the floor.
We are disappointed that an amendment that we filed to
expand the mandate and responsibilities of the Privacy and
Civil Liberties Oversight Board (PCLOB) was not accepted, but
we look forward to future opportunities to strengthen oversight
of intelligence activities. We certainly do not look favorably
on a provision in the House-passed FY 2016 Intelligence
Authorization Act (H.R. 2596) that would restrict PCLOB's
mandate.
Additionally, there are certain provisions in the
classified annex accompanying the bill that do not precisely
reflect our positions, and we have addressed those provisions
in more detailed classified additional views filed with that
annex.
Ron Wyden.
Martin Heinrich.
Mazie K. Hirono.
ADDITIONAL VIEWS OF SENATORS WARNER, KING, RUBIO, HIRONO, AND MIKULSKI
This legislation includes an amendment we supported to
require a comprehensive approach to the overhead satellite
architecture that supports U.S. intelligence and defense
programs.
We believe this bill sends a strong message that we need a
strategy for our space architecture that safeguards our
national security by taking advantage of cutting-edge
technology. The U.S. is in danger of losing our technological
edge due to our current overreliance on a big-government
acquisition model. Our current approach to overhead satellites
is increasingly unsustainable due to growing costs, long design
time, lack of competition, and an inability to take advantage
of rapid innovation in the private sector. Given the cost of
maintaining our satellite infrastructure and the dangers and
constraints imposed by the threat of anti-satellite weapons,
our space infrastructure will be stronger and more efficient if
it integrates commercial capabilities into government
solutions.
On September 23, 1971, National Security Adviser Henry
Kissinger issued a short memo regarding President Nixon's
decision to pursue the first electro-optical imaging (EOI)
satellite, to be undertaken ``under a realistic funding
program, with a view toward achieving an operational capability
in 1976.'' It took almost exactly five years to design and
launch the first KH-11 satellite into orbit on December 19,
1976. The United States needs to get back to this kind of
timeline in designing and launching overhead reconnaissance
satellites. We cannot afford to wait a decade or more from
design to launch of a satellite if the United States is to
maintain its technological edge.
Our amendment also recognizes that space is no longer an
uncontested environment, as it once was, and that the U.S.
government must be open to innovative solutions such as
distributed, disaggregated architectures that could allow for
better resiliency against the space threat, and also allow for
ready reconstitution, constant replenishment, and frequent
technological refresh. Moreover, the current cost-constrained
budget environment dictates that the U.S. must more seriously
consider the costs of space systems and be open to potentially
less expensive alternatives that include commercial solutions.
In April 2009, Secretary of Defense Robert Gates said that
the United States needed to reform acquisition practices across
the Department of Defense, that the costs of the ``exquisite
solution'' were making defense unaffordable, and that ``we
needed to shift away from the 99-percent exquisite service-
centric platforms that are so costly and so complex that they
take forever to build and only then in very limited quantities.
With the pace of technological and geopolitical change and the
range of possible contingencies, we must look more to the 80-
percent multi-service solution that can be produced on time, on
budget and in significant numbers.''
In line with Secretary Gates's thinking about the ``80-
percent solution,'' the U.S. National Space Policy issued on
June 28, 2010, already states that to the maximum extent
possible, the U.S. government should use commercial space
capabilities when these are available, and develop
``exquisite'' governmental space systems ``only when it is in
the national interest and there is no suitable, cost-effective
United States commercial or, as appropriate, foreign commercial
service or system that is or will be available.''
Therefore, consistent with the National Space Policy, we
believe the U.S. government should make maximum use of mature
commercial space capabilities and acquisition practices for
national security systems where the required performance can be
met with commodity technology to reduce acquisition timelines
and costs, promote competition, capitalize on the pace of
commercial technology advances, and avoid unnecessary
government-unique investments. National Intelligence and
Department of Defense investments in technology development
utilizing a unique, dedicated industrial base should only be
reserved for cases where commercial commodity technology does
not exist or where revolutionary technology is judged to be
achievable and worth the attendant risk, cost, and time to
acquire.
Satellite systems and architectures should also be designed
in such a way that a number of elements common to multiple
spacecraft could be standardized, to reduce costs, simplify
execution and preserve a competitive industrial base; and the
entire overhead satellite architecture of the United States,
including programs funded by the Department of Defense or by an
element of the intelligence community, commercial providers,
and foreign partners, should be viewed and treated as an
integrated whole, not simply as a series of independent and
unrelated satellite systems.
Given the importance of space systems to the national
security and their huge costs, we believe that the current
state of the U.S. space systems architecture, and planning for
the future architecture, should receive priority attention from
the President, his senior national security and scientific
advisors, the Director of National Intelligence, the Secretary
of Defense, and the Chairman of the Joint Chiefs of Staff.
Our amendment therefore requires the Director of National
Intelligence, the Secretary of Defense and Chairman of the
Joint Chiefs to develop a strategy--with milestones and
benchmarks--to ensure that the nation's satellite architecture
meets the nation's needs in peace- and war-time; responsibly
stewards the taxpayers' dollars; accurately takes into account
cost- and performance tradeoffs of the architecture; meets
realistic requirements; produces and fosters excellence,
innovation and competition; produces innovative satellite
systems in under five years that can leverage common,
standardized design elements and commercially-available
technologies; takes advantage of rapid advances in commercial
technology, innovation and commercial-like acquisition
practices; and fosters competition and a robust industrial
base.
Mark R. Warner.
Angus S. King.
Marco Rubio.
Mazie K. Hirono.
Barbara A. Mikulski.
[all]
