[Senate Report 109-142]
[From the U.S. Government Printing Office]
109th Congress Report
SENATE
1st Session 109-142
======================================================================
INTELLIGENCE AUTHORIZATION ACT FOR FISCAL YEAR 2006
_______
September 29, 2005.--Ordered to be printed
_______
Mr. Roberts, from the Select Committee on Intelligence, submitted the
following
R E P O R T
[To accompany S. 1803]
The Select Committee on Intelligence, to which was referred
the bill (S. 1803) having considered the same, reports
favorably thereon without amendment and recommends that the
bill do pass.
The Select Committee on Intelligence (SSCI or Committee),
having considered the original bill (S. 1803), to authorize
appropriations for fiscal year 2006 for intelligence and
intelligence-related activities of the United States
Government, the Intelligence Community Management Account, and
the Central Intelligence Agency Retirement and Disability
System, and for other purposes, reports an original bill
without amendment favorably thereon and recommends that the
bill do pass.
CLASSIFIED SUPPLEMENT TO THE COMMITTEE REPORT
The classified nature of United States intelligence
activities precludes disclosure by the Committee of details of
its budgetary recommendations in this Report. The Committee has
prepared a classified supplement to this Report that contains
(a) the Classified Annex to this Report and (b) the classified
Schedule of Authorizations. The Schedule of Authorizations is
incorporated by reference in the Act and has the same legal
status as public law. The Classified Annex to this Report
explains the full scope and intent of the Committee's actions
in the classified Schedule of Authorizations. The Classified
Annex has also been incorporated by reference in Section 103.
As such, the Intelligence Community is required to comply with
any directions or requirements contained therein as it would
any other statutory requirement.
The classified supplement to the Report is available for
review by any Member of the Senate, subject to the provisions
of Senate Resolution 400 of the 94th Congress, as amended by
Senate Resolution 445 of the 108th Congress.
The classified supplement is made available to the
Committees on Appropriations of the Senate and the House of
Representatives, to the Permanent Select Committee on
Intelligence of the House of Representatives, and to the
President. The President shall provide for appropriate
distribution within the Executive Branch.
SECTION-BY-SECTION ANALYSIS AND EXPLANATION
The following is a section-by-section analysis and
explanation of the Intelligence Authorization Act for Fiscal
Year 2006, as reported herein. Following the section-by-section
analysis and explanation there are Committee comments on other
matters. The report also includes additional views offered by
Committee Members regarding this legislation and other matters.
TITLE I--INTELLIGENCE ACTIVITIES
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 2006.
Section 102. Classified schedule of authorizations
Section 102 makes clear that the details of the amounts
authorized to be appropriated for intelligence and
intelligence-related activities and the applicable personnel
ceilings covered under this title for fiscal year 2006 are
contained in a classified Schedule of Authorizations. The
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. Incorporation of classified annex
Section 103 incorporates into law the Classified Annex to
this Report. Unless otherwise specifically stated, the amounts
authorized in the Classified Annex are not in addition to
amounts authorized to be appropriated by other provisions of
the Act or by the classified Schedule of Authorizations.
The Committee has taken the step of incorporating the
Classified Annex because the Executive Branch has refused to
treat with equal weight the language in the classified annexes
and the text of recent authorization acts and their
accompanying classified schedules of authorizations. This
Committee, and Congress, will not permit the Executive Branch
to ignore the clear instructions of Congress merely because the
directives are contained, by necessity of classification, in an
annex accompanying the report associated with intelligence
authorizing legislation. The Committee directs the Executive
Branch to comply fully with any directed transfers, temporary
limitations on use (fences), or other limitations or
instructions contained in the Classified Annex to this Report.
Section 104. Personnel ceiling adjustments
Section 104 authorizes the Director of National
Intelligence (DNI), with the approval of the Director of the
Office of Management and Budget (OMB), in fiscal year 2006 to
authorize employment of civilian personnel in excess of the
personnel ceilings applicable to the elements of the
Intelligence Community under Section 102 by an amount not to
exceed 2 percent of the total of the ceilings applicable under
Section 102. The DNI may exercise this authority only if
necessary to the performance of important intelligence
functions. Any exercise of this authority must be reported to
the intelligence committees of the Congress.
Section 105. Intelligence Community Management Account
Section 105 authorizes appropriations for the Intelligence
Community Management Account (CMA) of the DNI and sets the
personnel end-strength for the Intelligence Community
Management Staff for fiscal year 2006.
Subsection (a) authorizes appropriations of $1,014,362,000
for fiscal year 2006 for the activities of the CMA of the DNI.
Subsection (a) also authorizes funds identified for advanced
research and development to remain available for two years.
Subsection (b) authorizes 882 full-time personnel for
elements within the CMA for fiscal year 2006 and provides that
such personnel may be permanent employees of the CMA element or
detailed from other elements of the United States government.
Subsection (c) authorizes additional appropriations and
personnel for the CMA as specified in the classified Schedule
of Authorizations and permits the additional funding for
research and development to remain available through September
30, 2007.
Subsection (d) requires that, except as provided in Section
113 of the National Security Act of 1947, personnel from
another element of the United States government shall be
detailed to an element of the CMA on a reimbursable basis,
except that for temporary functions such personnel may be
detailed on a non-reimbursable basis for periods of less than
one year.
Subsection (e) authorizes $17,000,000 of the amount
authorized in subsection (a) to be made available for the
National Drug Intelligence Center (NDIC). Subsection (e)
requires the DNI to transfer these funds to the Department of
Justice (DoJ) to be used for NDIC activities under the
authority of the Attorney General, and subject to Section
104A(e)(1) of the National Security Act of 1947, as amended by
Section 421(b)(1) of this Act.
Section 106. Incorporation of reporting requirements
Section 106 incorporates into the Act by reference each
requirement to submit a report contained in the joint
explanatory statement to accompany the conference report or in
the classified annex accompanying the conference report.
Section 107. Response of intelligence community to requests from
Congress for intelligence documents and information
Section 107 provides for certain procedural requirements
related to the ability of Congress to gain access, through the
intelligence committees and other committees of jurisdiction,
to intelligence reports, assessments, estimates, legal
opinions, and other intelligence information. The provision
states that elements of the Intelligence Community must provide
to the intelligence committees any intelligence documents or
information requested by the Chairman or Vice Chairman (or
Ranking Minority Member) of such committees. The statutory
requirement applies only to existing intelligence documents and
information and would not apply to requests to generate new
intelligence assessments, reports, estimates, legal opinions,
or other information.
TITLE II--CENTRAL INTELLIGENCE AGENCY RETIREMENT AND DISABILITY SYSTEM
Section 201. Authorization of appropriations
Section 201 authorizes appropriations in the amount of
$244,600,000 for fiscal year 2006 for the Central Intelligence
Agency Retirement and Disability Fund.
TITLE III--INTELLIGENCE AND 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 such 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. Clarification of definition of intelligence community
under the National Security Act of 1947
Section 303 amends Section 3(4)(L) of the National Security
Act of 1947 (50 U.S.C. 401a(4)(L)) to permit the designation as
``elements of the intelligence community'' of other elements of
departments and agencies of the United States government not
listed in Section 3(4). Section 3(4)(L) is redesignated as
Section 3(4)(M) by Section 441(d) of this Act.
Section 304. Delegation of authority for travel on common carriers for
intelligence collection personnel
Section 116 of the National Security Act of 1947 (50 U.S.C.
404k) allows the DNI to authorize travel on any common carrier
when it is consistent with Intelligence Community mission
requirements or, more specifically, is required for cover
purposes, operational needs, or other exceptional
circumstances. As presently written, the DNI may only delegate
this authority to the Principal Deputy DNI or, with respect to
Central Intelligence Agency (CIA) employees, to the Director of
the CIA.
Section 304 of this bill provides that the DNI may delegate
the authority in Section 116 of the National Security Act of
1947 to the head of any element of the Intelligence Community.
This expansion is consistent with the view of the Committee
that the DNI should be able to delegate authority throughout
the Intelligence Community when such delegation serves the
overall interests of the Community.
Section 304 also provides that the head of an Intelligence
Community element to whom travel authority has been delegated
is also empowered to delegate the authority to senior officials
of the element as specified in guidelines issued by the DNI.
This allows for administrative flexibility, consistent with the
guidance of the DNI, for the entire Community. To facilitate
Congressional oversight, the DNI shall submit the guidelines to
the intelligence committees of the Congress.
Section 305. Modification of availability of funds for different
intelligence activities
Section 305 conforms the text of Section 504(a)(3)(B) of
the National Security Act of 1947 (50 U.S.C. 414(a)(3)(B)
(governing the funding of intelligence activities)) with the
text of Section 102A(d)(5)(A)(ii) of that Act (50 U.S.C. 403-
1(d)(5)(A)(ii)), as amended by Section 1011(a) of the
Intelligence Reform and Terrorism Prevention Act of 2004 (Pub.
L. No. 108-458 (Dec. 17, 2004)) (governing the transfer and
reprogramming by the DNI of certain intelligence funding). In
particular, this conforming amendment replaces the ``unforeseen
requirements'' standard in Section 504(a)(3)(B) with a clearer
standard to govern reprogrammings and transfers of funds
authorized for a different intelligence or intelligence-related
activity. Under the new standard, a reprogramming or transfer
would be authorized if, in addition to the other requirements
of Section 504(a)(3), the new use of funds would ``support an
emergent need, improve program effectiveness, or increase
efficiency.'' This modification brings the standard for
reprogrammings or transfers of intelligence funding into
conformity with the standards applicable to reprogrammings and
transfers under Section 102A of the National Security Act of
1947. The modification preserves Congressional oversight of
proposed reprogrammings and transfers while enhancing the
Intelligence Community's ability to carry out missions and
functions vital to national security.
Section 306. Retention and use of amounts paid as debts to elements of
the intelligence community
Section 306 adds a new Section 1103 to the National
Security Act of 1947, authorizing Intelligence Community
elements to accept, retain, and--for certain purposes--use
amounts received from private parties as repayment of debts
owed to such element.
Each year some property purchased with appropriated funds
is damaged beyond use or is lost through the negligence of a
private party or an employee of the Intelligence Community. The
damaged or lost property may have been used to support wartime
activities or other national intelligence missions and, thus,
waiting for the next annual appropriation cycle for additional
funds to repair or replace the property inhibits the
Intelligence Community's ability to quickly and efficiently
support the war fighter and other national intelligence
missions.
Section 306 addresses this shortcoming by authorizing
elements of the Intelligence Community to accept and retain
reimbursement, outside of the annual appropriations cycle, from
a private party, including a Federal employee, who has been
found to have negligently lost or damaged property. As a
result, elements of the Intelligence Community will be able to
expeditiously repair or replace lost or damaged property
without waiting for the next appropriation cycle. Similarly,
this new section also authorizes elements of the Intelligence
Community to retain funds paid by Intelligence Community
employees or former employees as repayment of a default on the
terms and conditions of scholarship, fellowship, or other
educational assistance provided by the Community to the
employee. The section authorizes crediting payments only to the
current appropriation account related to the debt and limits
the subsequent use of the funds.
Section 307. Pilot program on disclosure of records under the Privacy
Act relating to certain intelligence activities
As a result of reporting requirements in the Intelligence
Authorization Act for Fiscal Year 2004 (Pub. L. No. 108-177
(Dec. 13, 2003)) intended to improve information access across
the Intelligence Community and the Federal government, the
Intelligence Community, Department of Defense (DoD), Department
of Homeland Security, and Federal law enforcement agencies
formed the Information Sharing Working Group (ISWG) to, inter
alia, identify impediments to information access in existing
laws and in Intelligence Community and DoD policies. The ISWG
issued its report in December 2004.
In the report, the ISWG noted that certain provisions of
the Privacy Act could prevent the sharing of intelligence
information within the Executive Branch. Generally, the Privacy
Act (5 U.S.C. 552a) precludes the dissemination of information
regarding U.S. persons stored within a system of records
maintained by the United States government without the consent
of that individual. There are, however, twelve exceptions to
this general rule. For example, one exception permits the
sharing of information to support a civil or criminal law
enforcement activity under certain prescribed circumstances.
There is no exception permitting Intelligence Community
elements and other United States government agencies to share
foreign intelligence or counterintelligence information
(including information concerning international terrorism or
proliferation of weapons of mass destruction) between or with
elements of the Intelligence Community.
To address this shortcoming, Section 307 creates a pilot
program to study a narrow intelligence exception to the Privacy
Act. Specifically, the provision allows transfers under three
circumstances. First, the provision permits elements of the
Intelligence Community, including their parent departments and
agencies, to share with other elements of the Intelligence
Community, and their parent departments and agencies,
information covered by the Privacy Act when that information is
relevant to a lawful and authorized foreign intelligence or
counterintelligence activity. Second, the provision permits the
head of an element of the Intelligence Community to request in
writing Privacy Act records relevant to a lawful and authorized
activity of that element to protect against international
terrorism or the proliferation of weapons of mass destruction
from another United States government agency with similar
responsibilities related to protection against international
terrorism and proliferation. Third, the provision authorizes
heads of non-Intelligence Community agencies with
responsibilities to protect against international terrorism or
the proliferation of weapons of mass destruction to share
Privacy Act records with an element of the Intelligence
Community if the record constitutes ``terrorism information''
(as defined in Section 1016(a)(4) of the Intelligence Reform
and Terrorism Prevention Act of 2004 (Pub. L. No. 108-458 (Dec.
17, 2004)) or information concerning the proliferation of
weapons of mass destruction, if the receiving element of the
Intelligence Community is lawfully authorized to collect or
analyze the information to protect against international
terrorism or proliferation. When necessary to determine whether
a record held by a non-Intelligence Community agency
constitutes terrorism information or information concerning the
proliferation of weapons of mass destruction, the head of such
agency may consult the DNI or the Attorney General. Section 307
also extends to the pilot program an exemption from certain
records access and disclosure accounting requirements. In order
to protect intelligence sources and methods from unauthorized
disclosure, this exemption is identical to the exemption
extended to the DNI under Section 416 of this Act.
Section 307 facilitates the sharing only of intelligence
information already lawfully collected and maintained within
United States government record systems and relevant to a
lawful and authorized foreign intelligence or
counterintelligence activity (with a particular focus on
sharing by non-Intelligence Community elements on information
concerning international terrorism and the proliferation of
weapons of mass destruction). The provision expressly states
that the new authority does not permit the collection or
retention of foreign intelligence or counterintelligence
information not otherwise authorized by law.
To ensure that the exception to the Privacy Act permits
necessary sharing of critical foreign intelligence and
counterintelligence information while providing appropriate
protections for the privacy and civil liberties of U.S.
persons, Section 307 establishes a four-year pilot program. The
exception to the Privacy Act will expire on December 31, 2009,
unless renewed. In the interim, the DNI and the Attorney
General, in consultation with the Privacy and Civil Liberties
Oversight Board, are required to submit to the intelligence
committees an annual report on the status and implementation of
the pilot program. On June 31, 2009, the DNI and the Attorney
General, in coordination with the Privacy and Civil Liberties
Oversight Board, will submit a final report to the intelligence
committees, including any recommendations regarding continued
authorization of the exception. Additionally, the Privacy and
Civil Liberties Oversight Board will submit to the
Congressional intelligence committees a separate report
providing the Board's advice and counsel on the development and
implementation of the authorities provided under this Section.
Section 308. Extension to intelligence community of authority to delete
information about receipt and disposition of foreign gifts and
decorations
Current law requires that certain Federal ``employees''--a
term that generally applies to all officials and personnel of
the Intelligence Community and certain contractors, spouses,
dependents, and others--file reports with their ``employing''
agency regarding the receipt of gifts or ``decorations'' from
foreign governments. See 5 U.S.C. 7342. Following compilation
of these reports, the ``employing'' agency is required to
annually file with the Secretary of State detailed information
about the receipt of foreign gifts and decorations reported by
its employees, including the source of the gift. See 5 U.S.C.
7342(f). The Secretary of State is then required to publish a
comprehensive list of the agency reports in the Federal
Register. See id. With respect to the activities of the
Intelligence Community, the public disclosure of such gifts or
decorations in the Federal Register has the potential to
compromise intelligence sources (e.g., the confirmation of an
intelligence relationship with a foreign government) and could
undermine national security. Recognizing this potential
concern, the Director of Central Intelligence (DCI) was granted
a limited exemption from reporting certain specified
information about such foreign gifts or decorations where the
publication of the information could adversely affect United
States intelligence sources. See Pub. L. No. 95-105, Sec.
515(a) (Aug. 17, 1977). Section 1079 of the Intelligence Reform
and Terrorism Prevention Act of 2004, Pub. L. No. 108-458 (Dec.
17, 2004) (``Intelligence Reform Act''), extended a similar
exemption to the DNI (in addition to amending the existing
exemption to apply to the Director of the CIA).
Section 308 amends existing law to provide to the heads of
each Intelligence Community element the same limited exemption
from specified public reporting requirements that is currently
authorized for the DNI and the Director of the CIA. The
national security concerns that prompted the initial DCI
exemption, and the more recent exemptions for the DNI and
Director of the CIA, apply with equal weight to other
Intelligence Community elements--the publication of certain
information relating to foreign gifts or decorations provided
to employees of all Intelligence Community agencies could
adversely affect United States intelligence sources. Section
308 provides the exemption necessary to protect national
security, but mandates that the information not provided to the
Secretary of State be provided to the DNI to ensure continued
independent oversight of the receipt by Intelligence Community
``employees'' of foreign gifts or decorations.
Section 309. Availability of funds for travel and transportation of
personal effects, household goods, and automobiles
Section 309 provides the CIA and the Office of the DNI the
same authority that is granted to the Department of State by
Section 2677 of Title 22, United States Code, when travel and
transportation authorized by valid travel orders begins in one
fiscal year, but may not be completed during that same fiscal
year. The Committee believes this authority will relieve the
administrative burden of charging the eligible costs to two
fiscal years' appropriations and adjusting associated accounts.
TITLE IV--MATTERS RELATING TO ELEMENTS OF THE INTELLIGENCE COMMUNITY
Subtitle A--Office of the Director of National Intelligence
Section 401. Additional authorities of the Director of National
Intelligence on intelligence information sharing
Section 401 amends the National Security Act of 1947 to
provide the DNI statutory authority to use National
Intelligence Program funds to quickly address deficiencies or
needs that arise in intelligence information access or sharing
capabilities. The new Section 102A(g)(1)(G) of the National
Security Act of 1947 authorizes the DNI to provide to a
receiving agency or component--for that agency or component to
accept and use--funds that have been authorized and
appropriated to address intelligence information access or
sharing needs. In the alternative, the DNI may provide to a
receiving agency necessary or associated services and equipment
procured with funds from the National Intelligence Program. The
new Section 102A(g)(1)(H) of the National Security Act of 1947
also grants the DNI the authority to provide funds to non-
National Intelligence Program activities for the purpose of
addressing critical gaps in intelligence information access or
sharing capabilities. Without the authority, the development
and implementation of necessary capabilities could be delayed
by an agency's lack of authority to accept or utilize systems
funded from the National Intelligence Program, inability to use
or identify current-year funding, or concerns regarding the
augmentation of appropriations. These new DNI authorities are
similar to authority granted to the National Geospatial-
Intelligence Agency (NGA) with respect to imagery and imagery-
related systems. See Section 105(b)(2)(D)(ii) of the National
Security Act of 1947 (50 U.S.C. 403-5).
Section 402. Modification of limitation on delegation by the Director
of National Intelligence of the protection of intelligence
sources and methods
Section 402 amends the National Security Act of 1947 to
modify the limitation on delegation by the DNI of the authority
to protect intelligence sources and methods from unauthorized
disclosure. The provision permits the DNI to delegate the
authority to the Deputy Directors of National Intelligence or
the Chief Information Officer of the Intelligence Community. A
previous provision in the National Security Act of 1947 had
vested the power to protect sources and methods in the DCI, but
did not constrain further delegation of the authority.
Section 403. Authority of the Director of National Intelligence to
manage access to human intelligence information
Section 403 provides the DNI with the authority to ensure
the dissemination of intelligence information collected through
human sources, including the underlying operational data
necessary to understand that reporting, to appropriately
cleared analysts or other intelligence officers throughout the
Intelligence Community. Recent intelligence failure---
particularly related to pre-war intelligence assessments on
Iraq--have demonstrated the importance of rebuilding and
improving the nation's human intelligence capabilities. While
the Intelligence Community is making some progress in this
regard, a great deal remains to be done, particularly in the
area of access to intelligence gathered through human
intelligence operations.
The Committee's review of the Intelligence Community's pre-
war assessments on Iraq highlighted the impact of unnecessary
restrictions on access by intelligence analysts to human
intelligence information. In its Report of the Select Committee
on Intelligence on the U.S. Intelligence Community's Pre-War
Intelligence Assessments on Iraq, the Committee concluded that
the Intelligence Community's failure to provide cleared
analysts with a legitimate need-to-know broader access to human
intelligence reporting, including the operational data
underlying that reporting, contributed to the flawed
intelligence assessments on Iraq's weapons of mass destruction
programs. Access to this data-controlled by the agencies that
collected the information-would have provided analysts with a
better understanding of the reliability of the sources of the
reporting, as well as other significant intelligence
information required for their work.
The Intelligence Reform Act provides the DNI with a number
of tools to foster greater information access within the
Community. Section 403 builds on these tools by providing the
DNI with the specific authority to ensure analysts and other
Intelligence Community officers are provided with improved
access to human intelligence reporting, consistent with the
DNI's determinations regarding the protection of intelligence
sources and methods. Although the Committee expects that
individual elements will continue to retain human intelligence
operational data, access decisions will be made by the DNI as a
neutral arbiter of need-to-know. No longer will these access
decisions be left to individual agencies with a parochial--and
understandable-desire to protect sources at all costs. Access
to human intelligence reporting, and underlying operational
reporting, must be balanced against real threats to sources and
methods. Under Section 403, the Committee expects the DNI to
perform the necessary balancing. Section 403 also provides the
DNI with full and regular access to the information necessary
to ``manage and direct . . . the tasking of, collection,
analysis, production, and dissemination of national
intelligence by elements of the intelligence community.'' See
Section 102A(f)(1)(A)(ii) of the National Security Act of 1947
(50 U.S.C. 403-1(f)(1)(A)(ii)).
To effectively implement Section 403, the DNI should
standardize security clearance processes across Intelligence
Community elements to resolve issues that have hampered
information access in the past. The Committee does not believe
that working in a particular agency makes one Intelligence
Community officer inherently more trustworthy than a
counterpart with the same security clearance and a legitimate
``need-to-know'' at another element. Resolution of disparate
clearance standards and processes, however, should provide
Intelligence Community elements with an additional degree of
comfort that, while information from sources for which those
agencies are responsible has received greater distribution, the
recipients of that information are appropriately cleared
consistent with DNI standards. Based on the authorities
provided to the DNI in the Intelligence Reform Act and this
section, the Committee is confident that the DNI can implement
the protections necessary for intelligence sources and methods,
while making human intelligence information more readily
available to appropriately cleared intelligence officers who
need the information for the conduct of their duties.
Section 404. Additional administrative authority of the Director of
National Intelligence
From an organizational standpoint, the DNI should be able
to rapidly focus the Intelligence Community on a particular
intelligence issue through a coordinated effort that uses all
available resources. The ability of the DNI to respond with
flexibility and to coordinate the Intelligence Community
response to an emerging threat should not depend on the time-
sensitive vagaries of the budget cycle and should not be
constrained by general limitations found in appropriations law
(e.g., 31 U.S.C. 1532) or the annual limitation set forth in
the ``General Provisions'' of the Transportation, Treasury,
Housing and Urban Development, the Judiciary, the District of
Columbia, and Independent Agencies Appropriations Act. See,
e.g., Consolidated Appropriations Act, 2005, Division H--
Transportation, Treasury, Independent Agencies, and General
Government Appropriations Act, 2005, Section 610, Pub. L. No.
108-447 (Dec. 8, 2004); see also, e.g., In re: Veterans
Administration Funding of Federal Executive Boards, 65 Comp.
Gen. 689 (July 1, 1986) (discussing history of prohibition on
interagency financing of boards, commissions, councils,
committees, or similar groups).
To provide this needed operational and organizational
flexibility, Section 404 grants the DNI the authority-
notwithstanding certain specified provisions of general
appropriations law--to approve interagency financing of
national intelligence centers (authorized under Section 119B of
the National Security Act of 1947 (50 U.S.C. 404o-2)) and of
other boards, commissions, councils, committees, or similar
groups established by the DNI (e.g., ``mission managers,'' as
recommended by the Commission on the Intelligence Capabilities
of the United States regarding Weapons of Mass Destruction (WMD
Commission)). Under Section 404, the DNI could authorize the
pooling of resources from various Intelligence Community and
non-Intelligence Community agencies to finance national
intelligence centers or other organizational groupings designed
to address identified intelligence matters. Once approved by
the DNI, the provision also expressly permits other United
States government departments and agencies, including
Intelligence Community elements, to fund, or participate in the
funding of, the authorized activities.
The Committee recognizes the need for coordinated responses
to national security threats and intelligence problems. To
better understand how the DNI intends to utilize the authority
provided under Section 404, the Committee directs the DNI to
provide an annual report--through the end of Fiscal Year 2010--
providing details on how this authority has been exercised,
what amount of appropriated funds attributable to each
interagency contributor has been accessed to finance each
national intelligence center or other organizational grouping
under this section, and whether the National Intelligence
Program or other budget account has been modified to provide
specific funding for such national intelligence centers or
other organizational groupings or whether funding will continue
to be provided under the authority of Section 404.
Section 405. Clarification of limitation on co-location of the Office
of the Director of National Intelligence
Section 405 clarifies that the ban on co-location of the
Office of the DNI with any other Intelligence Community
element, which is slated to take effect as of October 1, 2008,
applies to the co-location of the headquarters of the Office of
the DNI with the headquarters of any Intelligence Community
agency or element. This provision provides flexibility to
ensure that components of the Office of the DNI may be located
in the most appropriate facility or facilities, including co-
location with components of Intelligence Community agencies or
elements. The Committee is aware that the DNI intends to find a
headquarters that is separate and apart from the headquarters
of the various Intelligence Community elements, consistent with
the expressed intent of Congress.
Section 406. Additional duties of the Director of Science and
Technology of the Office of the Director of National
Intelligence
As part of the restructuring of the nation's intelligence
infrastructure in the Intelligence Reform Act, Congress created
a Director of Science and Technology within the Office of the
DNI. Under the Act, the Director of Science and Technology
serves as the DNI's chief representative for science and
technology, assisting the DNI in formulating a long-term
strategy for scientific advances in the field of intelligence
and on the science and technology elements of the intelligence
budget. Additionally, the Director of Science and Technology
chairs the DNI's Science and Technology Committee-responsible
for coordinating advances in intelligence-related research and
development.
The House-passed version of the Intelligence Authorization
Act for Fiscal Year 2006, H.R. 2475 (109th Congress), contains
a provision (Section 304) that further expounds on the role of
the Director of Science and Technology. Section 304 in H.R.
2475 would require the Director of Science and Technology to
systematically identify the Intelligence Community's most
significant challenges requiring technical solutions and to
develop options to enhance research and development efforts to
meet requirements in a timely manner. Section 304 would also
require the DNI to submit to Congress a report detailing the
strategy for development and use of technology throughout the
Intelligence Community through 2021. The report is to identify
the Community's highest priority intelligence gaps that may be
resolved by the use of technology; identify goals for advanced
research and development; explain how advanced research and
development projects funded under the National Intelligence
Program address the identified gaps; specify current and
projected research and development projects; and provide a plan
for incorporating technology from research and development
projects into National Intelligence Program acquisition
programs.
Section 406 incorporates additional requirements into a
provision otherwise similar to Section 304 of H.R. 2475.
The Committee supports the House provision, but also
believes that such a provision should make clear that it is the
responsibility of the Director of Science and Technology to
assist the DNI in ensuring that the Intelligence Community's
research and development priorities and projects are consistent
with national intelligence requirements; that a priority be
placed on addressing identified deficiencies in the collection,
processing, analysis, or dissemination of national
intelligence; that the research and development priorities and
projects account for program development and acquisition
funding constraints; and that such priorities and projects
address system requirements from collection to final
dissemination.
The Committee further requires the Director of Science and
Technology, at the direction of the DNI, to develop and
maintain an integrated Technical Standards System for major
acquisitions. The Technical Standards System should improve the
availability of technical standards for the design,
development, and operation of Intelligence Community programs
and projects; reduce duplication of effort and improve
interoperability within the Intelligence Community, with the
private sector, and with international partners; and enhance
awareness of standardization in the Intelligence Community.
Under this provision, the Director of Science and Technology
will develop standards that document uniform engineering and
technical requirements for processes, procedures, practices,
and methods, including requirements for selection, application,
and design criteria of particular items. The Committee
encourages the DNI to consult, as appropriate, with the heads
of other United States government departments and agencies
(e.g., the Secretary of Defense, the Administrator of the
National Aeronautics and Space Administration, Secretary of
Homeland Security) when developing standards and specifications
under this provision.
Section 407. Appointment and title of Chief Information Officer of the
Intelligence Community
Section 407 converts the position of Chief Information
Officer (CIO) of the Intelligence Community from an appointment
by the President, by and with the advice and consent of the
Senate, to an appointment by the DNI. The provision also
expressly designates the position as CIO of the Intelligence
Community. The modification to the title of the position of CIO
is consistent the position's overall responsibilities as
outlined in Section 103G(b) of the National Security Act of
1947 (50 U.S.C. 403-3g(b)).
The creation of a CIO of the Intelligence Community
(Section 303 of the Intelligence Authorization Act for Fiscal
Year 2005 (Pub. L. No. 108-487 (Dec. 23, 2004)), combined with
the budgetary authorities and information technology
responsibilities of the DNI (see, e.g., Section 1011 of the
Intelligence Reform Act), laid an important foundation for
improvements in the information technology infrastructure of
the Intelligence Community. The Committee believes that the CIO
of the Intelligence Community must provide direction and
guidance to all elements of the Intelligence Community to
ensure that information technology research and development,
security, and acquisition programs support information access
throughout the Intelligence Community. The modification to the
manner in which the CIO of the Intelligence Community is
appointed should not be construed to diminish the authorities
or responsibilities of the position.
Under existing law, the President has submitted a
nomination for the position of CIO of the Intelligence
Community. The Committee will proceed to consider and, as
appropriate, act on the nomination. If Senate confirmation
precedes conference action on this Act, the Committee will ask
the conference to provide that the amendment proposed in
Section 407 not apply until a vacancy in the position of CIO of
the Intelligence Community next occurs.
Section 408. Inspector General of the Intelligence Community
Section 1078 of the Intelligence Reform Act authorizes the
DNI to establish an Office of Inspector General if the DNI
determines that an Inspector General ``would be beneficial to
improving the operations and effectiveness of the Office of the
DNI.'' It further provides that the DNI may grant to the
Inspector General ``any of the duties, responsibilities, and
authorities'' set forth in the Inspector General Act of 1978.
The DNI has now appointed an Inspector General; however, the
duties, responsibilities, and authorities of the Inspector
General, and his ability to exercise his authorities across all
elements of the Community, remain ambiguous.
The DNI and the Intelligence Community need an empowered
and effective Inspector General. A strong Inspector General is
vital to achieving the goal, set forth in the Intelligence
Reform Act, of improving the operations and effectiveness of
the Intelligence Community. It is also vital to achieving the
broader goal of identifying problems and deficiencies wherever
they may be found in the Intelligence Community, including the
manner in which elements of the Community interact with each
other in such matters as providing access to information and
undertaking joint or cooperative activities. To that end, by
way of a proposed new Section 103Hof the National Security Act
of 1947, Section 408 of this Act establishes an Inspector General for
the Intelligence Community.
The office will be established within the Office of the
DNI. The Inspector General will keep both the DNI and the
intelligence committees fully and currently informed about
problems and deficiencies in Intelligence Community programs
and operations and the need for corrective actions. The
Inspector General will be appointed by the President, with the
advice and consent of the Senate, and will report directly to
the DNI. To bolster the Inspector General's independence within
the Intelligence Community, the Inspector General may be
removed only by the President, who must then communicate the
reasons for the Inspector General's removal to the intelligence
committees.
The DNI may prohibit the Inspector General from conducting
an investigation, inspection, or audit if the DNI determines
that is necessary to protect vital national security interests.
If the DNI exercises the authority to prohibit an
investigation, the DNI must provide the reasons for taking such
action to the intelligence committees within seven days. The
Inspector General may, as necessary, provide a response to the
intelligence committees regarding the actions of the DNI.
The Inspector General will have direct and prompt access to
the DNI and any Intelligence Community employee, or employee of
a contractor, whose testimony is needed. The Inspector General
will also have direct access to all records that relate to
programs and activities for which the Inspector General has
responsibility. Failure to cooperate will be grounds for
appropriate administrative action.
The Inspector General will have subpoena authority;
however, information within the possession of the United States
government must be obtained through other procedures. Subject
to the DNI's concurrence, the Inspector General may request
information from any United States government department,
agency, or element. Upon receiving such a request from the
Inspector General, heads of United States government
departments, agencies, and elements, insofar as practicable and
not in violation of law or regulation, must provide the
requested information to the Inspector General.
The Inspector General must submit semiannual reports to the
DNI that include a description of significant problems relating
to Intelligence Community programs and operations and to the
relationships between Intelligence Community elements. The
reports must include a description of Inspector General
recommendations and a statement whether corrective action has
been completed. Within thirty days of receiving the report from
the Inspector General, the DNI must submit each semiannual
report to Congress.
The Inspector General must immediately report to the DNI
particularly serious or flagrant violations. Within seven days,
the DNI must transmit those reports to the intelligence
committees, together with any comments. In the event the
Inspector General is unable to resolve differences with the
DNI, the Inspector General is authorized to report the serious
or flagrant violation directly to the intelligence committees.
Reports to the intelligence committees are also required with
respect to investigations concerning high-ranking Intelligence
Community officials.
Intelligence Community employees, or employees of
contractors, who intend to report to Congress an ``urgent
concern''--such as a violation of law or Executive Order, a
false statement to Congress, or a willful withholding from
Congress--may report such complaints and supporting information
to the Inspector General. Following a review by the Inspector
General to determine the credibility of the complaint or
information, the Inspector General must transmit such complaint
and information to the DNI. On receiving the complaints or
information from the Inspector General (together with the
Inspector General's credibility determination), the DNI must
transmit such complaint or information to the intelligence
committees. If the Inspector General does not find a complaint
or information to be credible, the reporting individual may
submit the matter directly to the intelligence committees by
following appropriate security practices outlined by the DNI.
Reprisals or threats of reprisal against reporting individuals
constitute reportable ``urgent concerns.'' The Committee will
not tolerate actions by the DNI, or by any Intelligence
Community element, constituting a reprisal for reporting an
``urgent concern'' or any other matter to Congress.
Nonetheless, reporting individuals should ensure that the
complaint and supporting information are provided to Congress
consistent with appropriate procedures designed to protect
intelligence sources and methods and other sensitive matters.
For matters within the jurisdiction of both the Inspector
General for the Intelligence Community and an Inspector General
for another Intelligence Community element (or a parent
department or agency), the Inspectors General must
expeditiously resolve who will undertake the investigation,
inspection, or audit. The final decision about jurisdiction
will, however, be made by the Inspector General for the
Intelligence Community. For investigations, inspections, or
audits commenced by an Inspector General for an Intelligence
Community element prior to the enactment of this Act, the
Inspector General for the Intelligence Community should
exercise his authority in a manner that does not disrupt the
timely completion of such investigations, inspections, or
audits or result in unnecessary duplication of effort. An
Inspector General for an Intelligence Community element must
share the results of any inspection, investigation, or audit
with any other Inspector General, including the Inspector
General for the Intelligence Community, who otherwise would
have also had jurisdiction over the investigation.
Consistent with existing law, the Inspector General must
report to the Attorney General any information, allegation, or
complaint received by the Inspector General relating to
violations of Federal criminal law.
Section 409. Leadership and location of National Counter Proliferation
Center
Section 1022 of the Intelligence Reform Act added a new
Section 119A of the National Security Act of 1947 which
provides that the President shall establish a National Counter
Proliferation Center (NCPC). Under the Act, the Center has
seven missions and objectives and should serve as the primary
organization within the United States government for analyzing
andintegrating all intelligence pertaining to proliferation.
Among its other powers, the NCPC is authorized to coordinate the
counter proliferation plans and activities of all United States
government departments and agencies. Section 119A also provided that
the NCPC should conduct ``strategic operational planning'' for the
United States government to prevent the spread of weapons of mass
destruction, delivery systems, and materials and technologies.
Congress provided the President with the authority to waive
any, or all, of the requirements of Section 119A if it was
determined that they did not materially improve the
nonproliferation ability of the United States. At the time
Congress enacted the Intelligence Reform Act, the WMD
Commission had not completed its work. Congress provided that
the President, after receiving the WMD Commission report,
should submit to Congress his views on the establishment of the
NCPC.
In its March 31, 2005 report, the WMD Commission
recommended that the President establish a relatively small
NCPC that manages and coordinates analysis and collection
across the Intelligence Community on nuclear, biological, and
chemical weapons. The WMD Commission supported the concept of
``strategic operational planning,'' but recommended that it not
be performed by the NCPC.
On June 29, 2005, the White House announced that the
President had endorsed the establishment of an NCPC. The
statement provided that the NCPC would exercise ``strategic
oversight'' of the Intelligence Community's weapons of mass
destruction activities. The DNI would ensure that the NCPC
establishes strategic intelligence collection and analysis
requirements regarding WMD that are consistent with United
States policies. Under the President's plan, the NCPC would be
established within the Office of the DNI, and the DNI would
appoint the Director of the NCPC who would then report to the
DNI. On August 8, 2005, the DNI announced the appointment of
the first Director of the NCPC. This appointment represents an
important first step in the establishment of the NCPC.
Section 409 of this Act reflects the President's
determination that the DNI should appoint the Director of the
NCPC and that the NCPC should be located in the Office of the
DNI.
Section 409 does not amend any other procedural or
substantive provision of Section 119A of the National Security
Act of 1947. If the President determines not to assign to the
NCPC any power provided by Section 119A, notice must be
provided to Congress in writing as required by that section.
Section 410. Operational files in the Office of the Director of
National Intelligence
Section 410 adds a new Section 700 to the National Security
Act of 1947. It ensures that protected operational files
provided by elements of the Intelligence Community to the
Office of the DNI carry with them any exemption such files had
from Freedom of Information Act (FOIA) requirements for search,
review, publication, or disclosure.
In the CIA Information Act, Congress authorized the DCI to
exempt operational files of the CIA from several requirements
of the FOIA, particularly those requiring search and review in
response to FOIA requests. In a series of enactments codified
in Title VII of the National Security Act of 1947, Congress has
extended the exemption to the operational files of the NGA, the
National Security Agency (NSA), and the National Reconnaissance
Office (NRO). It has also provided that the files of the Office
of the National Counterintelligence Executive (NCIX) should be
treated as operational files of the CIA (to the extent they
meet the criteria for CIA operational files). Section 434 of
this Act would extend the FOIA exemption to the operational
files of the Defense Intelligence Agency (DIA).
The components of the Office of the DNI, including the
National Counterterrorism Center (NCTC), require access to
information contained in operational files. The purpose of
Section 410 is to make clear that the operational files of any
component of the Intelligence Community, for which an
operational files exemption is applicable, retain their
exemption from FOIA search, review, disclosure, or publication.
The new Section 700 of the National Security Act of 1947
provides several limitations. The exemption does not apply to
information disseminated beyond the Office of the DNI. Also, as
Congress has provided in the operational files exemptions for
the CIA and other Intelligence Community elements, Section 700
provides that the exemption from search and review does not
apply to requests by United States citizens or permanent
residents for information about themselves (although other FOIA
exemptions, such as appropriate classification, may continue to
protect such files from public disclosure). The search and
review exemption would not apply to the subject matter of
Congressional or Executive Branch investigations into
improprieties or violations of law.
In the DNI's request to the Committee for legislative
authorities, the Office of the DNI asked for a broader
exemption from the FOIA than currently provided in Section 410.
The Committee considers it likely that the operations of the
Office of the DNI, in particular the activities of the NCTC and
the NCPC, may require an operational files exemption. Before
acting on such a request, the DNI, through the Chief
Information Officer of the Intelligence Community or other
appropriate officers, should systematically study and report to
the intelligence committees regarding the application of the
FOIA to the Office of the DNI.
As part of this review, the DNI should report on the
responsibility assigned by Congress in the Intelligence Reform
Act concerning operational file exemptions. Congress amended
each operational file statute to provide that the exemption
should be made only with the coordination of the DNI. Congress
also provided that the decennial review of the exemptions in
force must be undertaken with the DNI. These decennial reviews
must include consideration of the historical value or other
public interest in categories of files and the potential for
declassifying a significant amount of the material in them. The
DNI should advise the intelligence committees on the benefits
of coordinating the four decennial reviews (five with the
enactment of Section 434 of this Act) which now occur at
different times.
Section 411. Eligibility for incentive awards of personnel assigned to
the Office of the Director of National Intelligence
Section 411 updates Section 402 of the Intelligence
Authorization Act for Fiscal Year 1984 (Pub. L. No. 98-215
(Dec. 9, 1983)) to reflect and incorporate organizational
changes made by the Intelligence Reform Act. Section 411 also
makes other technical and stylistic amendments and strikes a
subsection of the law that applied only during fiscal year
1987.
Section 412. Repeal of certain authorities relating to the Office of
the National Counterintelligence Executive
Section 412 amends the authorities and structure of the
Office of the NCIX to eliminate certain independent
administrative authorities that had been vested in the NCIX
when that official was appointed by, and reported to, the
President. Those authorities are unnecessary, redundant, and
anomalous now that the NCIX is to be appointed by, and under
the authority, direction, and control of the DNI.
Section 413. Inapplicability of Federal Advisory Committee Act to
advisory committees of the Office of the Director of National
Intelligence
Congress enacted the Federal Advisory Committee Act (FACA)
(5 U.S.C. App.) to regulate the use of advisory committees
throughout the Federal Government. The FACA sets forth the
responsibilities of Congress and the Executive Branch with
regard to such committees and outlines procedures and
requirements for such committees. As originally enacted in
1972, the FACA expressly exempted advisory committees utilized
by the CIA and the Federal Reserve System. Section 413 amends
the FACA to extend this exemption to those advisory committees
established or used by the Office of the DNI.
Section 414. Membership of the Director of National Intelligence on the
Transportation Security Oversight Board
Section 414 substitutes the DNI, or the DNI's designee, as
a member of the Transportation Security Oversight Board
established under Section 115(b)(1) of Title 49, United States
Code, in place of the Director of the CIA.
Section 415. Temporary inapplicability to the Office of the Director of
National Intelligence of certain financial reporting
requirements
Section 3515 of Title 31, United States Code, requires
certain United States government agencies to prepare and submit
to the Congress and the Director of the OMB, not later than
March 1 of each year, an audited financial statement for the
preceding fiscal year. Section 3515 applies to the Office of
the DNI. When the Accountability of Tax Dollars Act of 2002
(Pub. L. No. 107-289 (Nov. 7, 2002)), amended Section 3515, the
Director of the OMB was given the authority to waive the
audited financial reporting requirements for up to two fiscal
years for any newly covered agency. Section 3515 was later
amended to allow the Director of the OMB to waive the reporting
requirements for a covered agency if the budget authority for
the agency did not exceed $25 million (in the given fiscal
year) and if the Director of the OMB determined that there was
an absence of risk associated with the agency's operations. The
Director of the OMB cannot use this limited waiver authority to
grant a grace period for the Office of the DNI. Although the
former Community Management Staff (CMS) has taken significant
strides to address the financial management issues of the
Office of the DNI, the DNI requested a grace period from the
audited financial reporting requirements of Section 3515.
Section 415 exempts the Office of the DNI from the
requirements of Section 3515 for fiscal years 2005, 2006, and
2007. This grace period will give the DNI the necessary time to
establish a financial management system for the Office of the
DNI that will be able to generate financial statements that
meet the prescribed legal and auditing standards. The Committee
expects the DNI to work diligently to bring the Office of the
DNI into compliance with the requirements of Section 3515.
Notwithstanding the length of the waiver provided in Section
415, the Committee strongly encourages the DNI to ensure
compliance with the requirements of Section 3515 at the
earliest possible date.
Section 416. Applicability of the Privacy Act to the Director of
National Intelligence and Office of the Director of National
Intelligence
The Privacy Act (5 U.S.C. 552a) has long contained a
provision under which the Director of the CIA could promulgate
rules to exempt any system of records within the CIA from
certain disclosure requirements under the Act. The provision
was designed to ensure that the CIA could provide adequate and
appropriate safeguards for certain sensitive information in its
records systems. In assuming the leadership of the Intelligence
Community, the DNI similarly requires the ability to safeguard
sensitive information in records systems within the Office of
the DNI. Section 416 extends to the DNI the authority to
promulgate rules under which certain records systems of the
Office of the DNI may be exempted from certain Privacy Act
disclosure requirements.
Section 417. Temporary exemption from personnel limits of certain
Office of Director of National Intelligence personnel assigned
to the National Counterterrorism Center
Section 1096 of the Intelligence Reform Act authorizes
within the Office of the DNI only 500 new personnel positions
during fiscal years 2005 and 2006. The Committee is concerned
that Section 1096 places an artificial limitation on the
ability of the DNI to create permanent personnel positions
within the NCTC. As currently constructed, the NCTC relies on
detailees from other Intelligence Community elements. To ensure
institutional memory and build an NCTC analytic base
independent of any particular Intelligence Community element,
the Committee strongly encourages the development of a
permanent cadre of analysts at the NCTC. To promote the
creation of this permanent cadre, Section 417 of this Act
exempts permanent positions within the NCTC from the
application of the personnel limitations in Section 1096.
Section 417 will permitthe creation of a permanent cadre at the
NCTC-administratively a part of the Office of the DNI-without
interfering with the DNI's ability to create permanent positions
elsewhere within the Office, including a permanent cadre charged with
the coordination and management of the Intelligence Community.
Subtitle B--Central Intelligence Agency
Section 421. Director and Deputy Director of the Central Intelligence
Agency
The Intelligence Reform Act established the positions of
the DNI and the Principal Deputy Director of National
Intelligence (PDDNI) and abolished the positions of DCI and
Deputy Director of Central Intelligence as those positions had
previously existed. The DNI and PDDNI are responsible for
leading the entire Intelligence Community, which includes many
components from the DoD. Moreover, the DNI and PDDNI must
ensure that the war fighter continues to receive timely,
actionable intelligence. Accordingly, the Intelligence Reform
Act continued the tradition of permitting a commissioned
officer to serve as either the leader or principal deputy of
the Intelligence Community, so long as both positions are not
filled by commissioned officers at the same time.
In establishing the positions of DNI and PDDNI, the Act
separated the leadership of the Intelligence Community from the
leadership of the CIA. Although the Act explicitly provided for
a Director of the CIA, it did not provide for a statutory
deputy to the Director.
Section 421 establishes the position of Deputy Director of
the CIA. The Deputy Director will be appointed by the
President, by and with the advice and consent of the Senate,
and will assist the Director of the CIA in carrying out the
duties and responsibilities of that office. In the event of a
vacancy in the position of Director of the CIA, or during the
absence or disability of the Director, the Deputy Director will
act for, and exercise the powers of, the Director. The DNI will
recommend a nominee to the President to fill any vacancy in
this position.
With the amendments made by Section 421, the Presidential
nomination of both the Director and Deputy Director of the CIA
must be confirmed by the advice and consent of the Senate.
Given the sensitive operations of the CIA, nominees for the
positions of Director and Deputy Director of the CIA merit
close scrutiny by Congress to examine the nominees'
qualifications prior to their assumption of the duties of these
offices. With respect to the Deputy Director of the CIA, the
requirement for Senate confirmation also provides assurance
that, in the event of a vacancy in the position of Director of
the CIA, or during the absence or disability of the Director,
Congress will have previously expressed its confidence in the
ability of the nominee to assume those additional duties.
Section 421 also requires that both the Director and Deputy
Director of the CIA be appointed ``from civilian life.'' The
considerations that encourage appointment of a military officer
to the position of DNI or PDDNI do not apply to the leadership
of the CIA. Indeed, given the CIA's establishment in 1947 as an
independent civilian intelligence agency with no direct
military or law enforcement responsibilities, the Committee
does not believe that a similar construct of military
leadership is appropriate at that agency. Accordingly, the
Committee recommends that both the Director and Deputy Director
of the CIA should be appointed from civilian life. To preserve
the important liaison relationship between the military and the
CIA, Section 426 of this Act removes a limitation that might
have otherwise discouraged the appointment of a military
officer to serve as the Associate Director of the CIA for
Military Support. In Section 426, the Committee recognizes the
important role played by the Associate Director of the CIA for
Military Support by ensuring that an officer of the armed
forces assigned to the position cannot be counted against the
numbers and percentages of the grade of that officer authorized
for that officer's armed force.
Unlike the requirement that the Secretary of Defense be
appointed ``from civilian life'' (see 10 U.S.C. 113(a)),
Section 421 does not contain any limitation on how long a
nominee must have been ``from civilian life'' prior to
appointment. The only restriction is that an active duty
officer must first retire or resign his or her commission and
return to civilian life prior to being appointed as either the
Director or Deputy Director of the CIA. Thus, the President
retains the flexibility to nominate candidates with significant
military experience for either or both positions.
The Committee recognizes that the person presently engaged
in the administrative performance of the duties of the Deputy
Director of the CIA is an active duty commissioned officer. The
prohibition on an active duty commissioned officer serving as
the Deputy Director of the CIA and the requirement that the
position be filled by a Presidential nominee confirmed by the
Senate will not take effect until the earlier of the date the
President nominates an individual to serve in such position or
the date the individual presently performing the duties of that
office leaves the post. To insulate the current officer from
undue military influence, Section 421 provides that so long as
the individual continues to perform the duties of the Deputy
Director of the CIA, he may continue to receive military pay
and allowances, but he is not subject to the supervision or
control of the Secretary of Defense or any of the military or
civilian personnel of the DoD, except as otherwise authorized
by law.
Section 422. Enhanced protection of Central Intelligence Agency
intelligence sources and methods from unauthorized disclosure
Section 422 amends the National Security Act of 1947 to
provide the Director of the CIA the authority to protect CIA
intelligence sources and methods from unauthorized disclosure,
consistent with any direction from the President or the DNI.
Prior to the Intelligence Reform Act, the authority to protect
intelligence sources and methods had been assigned to the DCI,
as head of the Intelligence Community. The CIA relied on the
DCI's sources and methods authority as the CIA's primary
statutory basis for protecting a range of CIA information,
including its human sources, from public or unauthorized
disclosure in a wide range of contexts and proceedings. This
authority proved critical for assuring current and potential
human intelligence sources that CIA could, and would, keep the
fact of their association with the United States government
secret, whether in civil litigation, administrative
proceedings, or other arenas. In Section 102A(i) of theNational
Security Act, as added by the Intelligence Reform Act, Congress
transferred this DCI authority to the DNI.
At the request of the Office of the DNI, Section 422 would
supplement that grant of authority to the DNI with a comparable
grant to the Director of the CIA, subject to the direction of
the President or DNI. It is intended to underscore for
intelligence sources that the CIA has explicit statutory
authority to protect its sources and methods. The revision to
Section 104A(d) of the National Security Act of 1947 is not
intended to, and does not, authorize the Director of the CIA to
withhold from the DNI any CIA information to which the DNI is
entitled by statute, Executive Order, Presidential directive,
or other applicable law or regulation.
Section 422 also makes conforming changes to Section 6 of
the CIA Act of 1949.
Section 423. Additional exception to foreign language proficiency
requirement for certain senior level positions in the Central
Intelligence Agency
Section 423 modifies statutory provisions pertaining to
foreign language proficiency for certain senior officials in
the CIA. Currently, Section 104A(g) of the National Security
Act of 1947 (Section 421 of the Committee's bill results in the
re-designation of Section 104A(g) as 104A(h)) provides that an
individual cannot be appointed to a position in the Senior
Intelligence Service (SIS) in the CIA's Directorate of
Intelligence (DI) or Directorate of Operations (DO) unless the
individual demonstrates at least a specified level of
professional speaking and reading proficiency in a foreign
language. Current law also grants the Director of the CIA
limited authority to waive this requirement with respect to a
position or class of positions with notification to the
intelligence committees.
Section 423 enhances CIA management flexibility by
authorizing the Director of the CIA to waive the foreign
language proficiency requirement, not just with respect to
positions or categories of positions, but also as to individual
officers or categories of individual officers-subject to the
Director of the CIA's determination that such proficiency is
not necessary for the successful performance of the duties and
responsibilities involved. The section also adds a
``grandfather'' clause to the language proficiency requirement,
creating a transition period that will allow CIA leadership to
more effectively manage the senior Agency workforce during a
critical period of change. Finally, Section 423 makes
appropriate conforming changes to the report on waivers
currently required by Section 104A(g).
The Committee expects the CIA to move forward in its
commitment to enhance its overall language capabilities. The
personnel flexibility granted by Section 423 will allow the
Director of the CIA to better integrate requirements for
language skills into leadership training, promotion, and
retention decisions and to plan for the projected influx of new
DI and DO officers.
Section 424. Exclusion of the Central Intelligence Agency from annual
report on improvement of financial statements for auditing
purposes
Section 424 repeals the requirement that the Director of
the CIA submit to the intelligence committees an annual report
describing the activities being undertaken to ensure that
financial statements of the CIA can be audited in accordance
with applicable law and the requirements of the OMB. The report
is unnecessary and duplicative now that CIA has submitted, and
will continue to submit, audited financial statements in
accordance with the Accountability of Tax Dollars Act of 2002
(Pub. L. No. 107-289 (Nov. 7, 2002)).
Section 425. Additional functions and authorities for protective
personnel of the Central Intelligence Agency
Section 425 amends Section 5(a)(4) of the CIA Act of 1949
(50 U.S.C. 403f(a)(4)) which authorizes protective functions by
designated security personnel who serve on CIA protective
details.
Arrest Authority
Section 425 authorizes protective detail personnel, when
engaged in the performance of protective functions, to make
arrests in two circumstances. Under this section, protective
detail personnel may make arrests without a warrant for any
offense against the United States-whether a felony,
misdemeanor, or infraction-that is committed in their presence.
They may also make arrests without a warrant if they have
reasonable grounds to believe that the person to be arrested
has committed or is committing a felony, but not other
offenses, under the laws of the United States.
Regulations, approved by the Director of the CIA and the
Attorney General, will provide safeguards and procedures to
ensure the proper exercise of this authority. The provision
specifically does not grant any authority to serve civil
process or to investigate crimes.
By granting CIA protective detail personnel limited arrest
authority, the provision mirrors statutes applicable to other
Federal law enforcement agencies that are authorized to perform
protective functions. The authority provided under this section
is consistent with those of other Federal elements with
protective functions, such as the Secret Service (see 18 U.S.C.
3056(c)(1)(c)), the State Department's Diplomatic Security
Service (see 22 U.S.C. 2709(a)(5)), and the Capitol Police (see
2 U.S.C. 1966(c)). Arrest authority will contribute
significantly to the ability of CIA protective detail personnel
to fulfill their responsibilities to protect officials against
serious threats without being dependent on the response of
Federal, State, or local law enforcement officers. The grant of
arrest authority under this amendment is supplemental to all
other authority that CIA protective detail personnel have by
virtue of their statutory responsibility to perform the
protective functions set forth in the CIA Act of 1949.
Protection of Personnel of the Office of the DNI
Section 425 also authorizes the Director of the CIA, on
request of the DNI, to make CIA protective detail personnel
available to the DNI and to other personnel within the Office
of the DNI. The DNI, in consultation with the Director of the
CIA and the Attorney General, should advise the intelligence
committees within 180 days of enactment of this Act on whether
this arrangement meets the protective needs of the Office of
the DNI or whether other statutory authority is needed.
Section 426. Modification of exclusion of military officer serving as
Associate Director of the Central Intelligence Agency for
Military Support from officer strength and distribution-in-
grade limitations
Section 426 amends existing law to reflect the appropriate
designation of the ``Associate Director of Central Intelligence
for Military Support'' as the ``Associate Director of the
Central Intelligence Agency for Military Support.'' The
provision also ensures that the position will be ``non-count''
for purposes of Chapter 32 of Title 10, United States Code.
Subtitle C--Defense Intelligence Components
Section 431. Modification of requirements on disclosure of governmental
affiliation by Department of Defense intelligence personnel
Section 431 provides a necessary, but limited, DoD
intelligence exemption to a provision of the Privacy Act (5
U.S.C. 552a). Section 552a(e)(3) of Title 5, United States
Code, requires each agency that maintains a system of records
to inform each individual whom it asks to supply information,
on the form which it uses to collect the information or on a
separate form that can be retained by the individual, of:
(A) The authority (whether granted by statute, or by
executive order of the President) which authorizes the
solicitation of the information and whether disclosure
of such information is mandatory or voluntary;
(B) The principal purpose or purposes for which the
information is intended to be used;
(C) The routine uses which may be made of the
information . . .; and
(D) The effects on [the individual], if any, of not
providing all or any part of the requested information.
To improve the ability of intelligence personnel of the DoD
to recruit sources, it is sometimes necessary for Defense
intelligence personnel, without having to divulge their
affiliation with the DoD or the United States government, to
approach potential sources and collect personal information
from them to determine their suitability and willingness to
become intelligence sources.
The DCI recognized that compliance with the requirements of
Section 552a(e)(3) has the potential to threaten operational
relationships, compromise the safety of intelligence officers,
and jeopardize intelligence sources and methods. Pursuant to
Section 552a(j)(1) of the Privacy Act, the DCI exempted all
systems of records maintained by CIA from the requirements of
Section 552a(e)(3). See 32 C.F.R. 1901.62(b). Section
552a(j)(2) of the Privacy Act grants a similar exemption to law
enforcement personnel. Compliance with Section 552a(e)(3) poses
similar risks to Defense intelligence personnel and to the
lawful and authorized human intelligence missions of the DoD.
Congress has previously recognized the limitations that
Section 552a(e)(3) places on Defense intelligence personnel.
Section 503 of the Intelligence Authorization Act for Fiscal
Year 1995 (Pub. L. No. 103-359 (Oct. 14, 1994)) granted Defense
intelligence personnel a very limited exemption from Section
552a(e)(3). The exemption in Section 503 was limited to a
single ``initial assessment contact outside the United
States.'' Current counterterrorism and other foreign
intelligence operations highlight the need for greater latitude
to assess potential intelligence sources, both overseas and
within the United States. Providing an additional limited
exemption to the Privacy Act to give Defense intelligence
officers the same protection enjoyed by the CIA when assessing
and recruiting sources should serve to protect these officers,
shield their operations from security risks, and improve the
ability of the DoD to conduct successful human intelligence
operations.
Section 431 does not expand the intelligence collection
mission of the DoD. Section 431 also maintains current
limitations in Executive Order 12333 and DoD Regulation 5240.1-
R concerning the collection and retention of information about
U.S. persons. In fact, the legislation codifies several
restrictions in Executive Order 12333 and DoD Regulation
5240.1-R that provide protections for U.S. persons.
The Committee expects that the majority of Defense
intelligence ``assessment contacts'' with U.S. persons, whether
within or outside the United States, should continue to be
``open''--i.e., the U.S. person should be aware that they are
talking with a representative of the United States government.
Under DoD Regulation 5240.1-R, Defense intelligence officials
are required to use the ``least intrusive means'' for
collecting intelligence information. In other words, without
meeting specified requirements for more intrusive techniques
(such as other-than-overt or ``clandestine'' approaches),
Defense intelligence agents must use overt methods to collect
publicly available information or information provided with the
consent of the person concerned. Within the United States, a
clandestine collection effort may be undertaken to collect
foreign intelligence about U.S. persons only under the
following specified circumstances:
(a) The foreign intelligence sought is significant
and collection is not undertaken for the purpose of
acquiring information concerning the domestic
activities of any U.S. person;
(b) Such foreign intelligence cannot reasonably be
obtained by overt means;
(c) The collection of such foreign intelligence has
been coordinated with the Federal Bureau of
Investigation; and
(d) The use of other than overt means has been
approved in writing by the head of the Department of
Defense intelligence component concerned, or his single
designee, as being consistent with [DoD Regulation
5240.1-R].
The regulatory conditions under which Defense intelligence
personnel may collect information about a U.S. person are quite
rigorous and, in large part, have been incorporated in Section
431. If any condition for collection is not met, then the
Defense intelligence component may not utilize the authorities
provided in Section 431.
Section 431 amends Section 503 of the Intelligence
Authorization Act for Fiscal Year 1995 (Pub. L. No. 103-359
(Oct. 14, 1994)) to permit Defense intelligence personnel,
under certain limited circumstances, to make assessment
contacts with U.S. persons without providing notice of
governmental affiliation. In addition to the restrictions in
Executive Order 12333 and DoD Regulation 5240.1-R, the
authority may only be exercised within the United States upon a
determination by the Director of the Defense Intelligence
Agency (DIA), or the single designee of the Director, that:
(a) Foreign intelligence, counterintelligence,
security, or other operational concerns require that
such notice not be given; and
(b) Such assessment contact is undertaken for the
purpose of determining whether such U.S. person
possesses, or has access to, foreign intelligence
information, and whether such U.S. person is credible
or suitable as a source, provided that no assessment
contact shall be undertaken . . . for the purpose of
acquiring information concerning the domestic
activities of any U.S. person.
Section 431 also requires that the DoD maintain records
associated with each assessment contact under this provision
that describe (1) the authority under which the information was
collected, (2) any interagency coordination required before the
contact, (3) a brief description of such interagency
coordination, (4) the basis for the decision not to disclose
governmental affiliation, (5) the nature of the information
obtained from the U.S. person as a result of the contact, and
(6) whether additional assessment contacts, beyond the initial
assessment contact, resulted with the person concerned.
The Committee will closely monitor the DoD's use of the
authorities provided by Section 503 (as amended by this
section) to ensure that the requirements of the provision,
Executive Order 12333, and DoD Regulation 5240.1-R are strictly
followed and that the privacy and civil liberties of U.S.
persons are appropriately protected.
In addition, Section 431 requires the DNI to examine the
legal and regulatory requirements and guidelines applicable to
assessment contacts to determine whether such requirements or
guidelines should be modified to ensure that appropriate
protections are afforded United States persons in the course of
such contacts. Section 431 also requires the DNI to modify
requirements and guidelines applicable to assessment contacts
if the DNI finds such modification appropriate. Nothing in the
section, or the amendments made by the section, is to be
construed as authority for the collection, retention, or
dissemination of information concerning U.S. persons not
otherwise authorized by law, Executive Order, or this section.
Section 432. Enhancements of National Security Agency training program
Section 16 of the NSA Act of 1959 (50 U.S.C. 402 note)
authorizes the NSA to establish and maintain an undergraduate
training program to facilitate the recruitment of individuals
with skills critical to the NSA's mission. Under the program,
the government has always had the right to recoup the
educational costs expended for the benefit of employees whose
employment with NSA is ``terminated''--either voluntarily by
the employee or by the NSA for misconduct.
Section 432 amends Section 16(d) of the NSA Act of 1959 to
clarify that ``termination of employment'' includes situations
where employees fail to maintain satisfactory academic
performance as defined by the Director of NSA. Such employees
shall be in breach of their contractual agreement and, in lieu
of any service obligation arising under such agreement, shall
be liable for repayment. Failure to maintain satisfactory
academic performance has always been grounds for default
resulting in the right of the government to recoup the
educational costs expended for the benefit of the defaulting
employee. Thus, this provision is a clarification of that
obligation.
In addition, Section 432 permits the Director of NSA to
protect intelligence sources and methods by deleting a
requirement that the NSA publicly identify to educational
institutions which students are NSA employees. Deletion of this
disclosure requirement will enhance the ability of NSA to
protect personnel and prospective personnel and to preserve the
ability of training program participants to undertake future
covert or other sensitive assignments for the Intelligence
Community. The Committee recognizes that nondisclosure is
appropriate when disclosure would threaten intelligence sources
or methods, would endanger the life or safety of the student,
or would limit the employee's or prospective employee's ability
to perform intelligence activities in the future. Despite the
deletion of the disclosure requirement, the Committee expects
the NSA to continue to prohibit participants in the training
program from engaging in any intelligence functions at the
institutions they attend under the program. See H.R. Rep. 99-
690, Part I (July 17, 1986) (``NSA employees attending an
institution under the program will have no intelligence
function whatever to perform at the institution.'').
Section 433. Codification of authorities of National Security Agency
protective personnel
Section 433 amends the NSA Act of 1959 (50 U.S.C. 402 note)
by adding a new Section 20, to clarify and enhance the
authority of protective details for the NSA.
New Section 20(a) would authorize the Director of the NSA
to designate NSA personnel to perform protective detail
functions for the Director and other personnel of the NSA who
are designated from time to time by the Director of the NSA as
requiring protection. Section 11 of the NSA Act of 1959
presently provides that the Director of NSA may authorize
agency personnel to perform certain security functions at NSA
headquarters, at certain other facilities, and around the
perimeter of those facilities. The new authority for protective
details would enable the Director of the NSA to provide
security when the Director or other designated personnel
require security away from those facilities.
New Section 20(b) would provide that NSA personnel, when
performing protective detail functions, may exercise the same
arrest authority that Section 425 provides for CIA protective
detail personnel. The arrest authority for NSA protective
detail personnel would be subject to guidelines approved by the
Director of the NSA and the Attorney General. The purpose and
extent of that arrest authority, and the limitations on it, are
described in the section-by-section explanation for Section
425. That analysis applies equally to the arrest authority
provided to NSA protective detail personnel by Section 20(b).
While this bill provides separately for authority for CIA
and NSA protective details, the DNI should advise the
intelligence committees whether overall policies, procedure,
and authority should be provided for protective services, when
necessary, for other elements or personnel (or their immediate
families) of the Intelligence Community.
Section 434. Protection of operational files of the Defense
Intelligence Agency
Section 434 amends the National Security Act of 1947 by
adding a new Section 705 governing the ``operational files'' of
the DIA. Section 434 exempts specified files from the
publication, disclosure, search, and review requirements of the
FOIA (5 U.S.C. 552). Existing authority in the National
Security Act of 1947 provides the CIA, NSA, NRO, and NGA with
certain FOIA exemptions for defined categories of ``operational
files.'' Under these ``operational files'' exemptions, the CIA,
NSA, NRO, and NGA are relieved of the administrative burden of
searching and reviewing sensitive classes of files only to
retrieve information that would not be subject to release under
the FOIA. With some minor variations to reflect the role of the
DoD and the armed services committees of the Congress, Section
434 extends to DIA operational files the same FOIA ``search and
review'' exemptions applicable to CIA operational files--i.e.,
to those files documenting certain human intelligence, foreign
liaison, and technical operations of DIA.
Section 435. Inspector General matters
The Inspector General Act of 1978 (Pub. L. No. 95-452 (Oct.
12, 1978)) established a government-wide system of Inspectors
General, some appointed by the President with the advice and
consent of the Senate and others ``administratively appointed''
by the heads of their respective Federal entities. These
Inspectors General were authorized to ``conduct and supervise
audits and investigations relating to the programs and
operations'' of the government and ``to promote economy,
efficiency, and effectiveness in the administration of, and . .
. to prevent and detect fraud and abuse in, such programs and
operations.'' See 5 U.S.C. App. 2. These Inspectors General
also perform an important reporting function, ``keeping the
head of the establishment and the Congress fully and currently
informed about problems and deficiencies relating to the
administration of . . . programs and operations and the
necessity for and progress of corrective action.'' Id. The
investigative authorities exercised by Inspectors General, and
their relative independence from the government operations they
audit and investigate, provide an important mechanism to ensure
that the operations of government are conducted as efficiently
and effectively as possible.
The Inspectors General of the CIA and Departments of
Defense, Energy, Homeland Security, Justice, State, and
Treasury are appointed by the President, with the advice and
consent of the Senate. These Inspectors General--authorized by
either the Inspectors General Act of 1978 or Section 17 of the
CIA Act of 1949--enjoy a degree of independence from all but
the head of their respective departments or agencies. These
Inspectors General also have explicit statutory authority to
access information from their respective departments or
agencies or other United States government departments and
agencies and may use subpoenas to access information (e.g.,
from a department or agency contractor) necessary for them to
carry out their authorized functions.
The NRO, DIA, NSA, and NGA have established their own
``administrative'' Inspectors General. Because they are not
identified in Section 8G of the Inspector General Act of 1978,
however, these Inspectors General lack the explicit statutory
authorization to access information relevant to their audits or
investigations, or to compel the production of such information
via subpoena. This lack of authority has impeded access to
information--in particular, information from contractors--that
is necessary for these Inspectors General to perform their
important function. These Inspectors General also lack the
indicia of independence necessary for the Government
Accountability Office to recognize the annual financial
statement audits of these Inspectors General as compliant with
the Chief Financial Officers Act of 1990 (Pub. L. No. 101-576
(Nov. 15, 1990)). This lack of independence also prevents the
DoD Inspector General, and would prevent the Inspector General
of the Intelligence Community, from relying on the results of
NRO, DIA, NSA, or NGA Inspector General audits or
investigations that must meet ``generally accepted government
auditing standards.''
To provide an additional level of independence and to
ensure prompt access to the information necessary for these
Inspectors General to perform their audits and investigations,
Section 435 amends Section 8G(a)(2) of the Inspector General
Act of 1978 to include the NRO,DIA, NSA, and NGA as
``designated federal entities.'' As so designated, the heads of these
Intelligence Community elements will be required by statute to
administratively appoint Inspectors General for these agencies. As
designated Inspectors General under the Inspector General Act of 1978,
these Inspectors General will be responsible to the heads of the NRO,
DIA, NSA, and NGA. The removal or transfer of these Inspectors General
from their post by the heads of their respective office or agency must
be promptly reported to the intelligence committees. These Inspectors
General will also be able to exercise other investigative authorities,
including those governing access to information and the issuance of
subpoenas, utilized by other Inspectors General under the Inspector
General Act of 1978.
To protect vital national security interests, Section 435
permits the DNI or the Secretary of Defense to prohibit the
Inspectors General of the NRO, DIA, NSA, and NGA from
initiating, carrying out, or completing any audit or
investigation they are otherwise authorized to conduct. This
authority--similar to the authority of the Director of the CIA
under Section 17 of the CIA Act of 1949 with respect to the
Inspector General of the CIA and the authority of the Secretary
of Defense under Section 8 of the Inspector General Act of 1978
with respect to the DoD Inspector General--provides the
President, through the DNI or the Secretary of Defense, a
mechanism to protect extremely sensitive intelligence sources
and methods or other vital national security interests. The
Committee expects that this authority will be rarely exercised
by the DNI or the Secretary of Defense.
Section 436. Confirmation of appointment of heads of certain components
of the intelligence community
Under present law and practice, the directors of the NSA,
NGA, and NRO--each with a distinct and significant role in the
national intelligence mission--are not confirmed by the Senate
in relation to their leadership positions at these agencies.
Presently, the President appoints the Directors of NSA and NGA,
and Secretary of Defense appoints the Director of the NRO. None
of the appointments must be confirmed by the Senate, unless a
military officer is promoted or transferred into the position.
Under such circumstances, Senate confirmation of the officer's
promotion or assignment to that position is the responsibility
of the Committee on Armed Services. The review of the Committee
on Armed Services, however, relates to the military promotion
or assignment and not specifically to the assumption by the
individual of the leadership of these critical Intelligence
Community elements.
Section 436 provides, expressly and uniformly, that the
heads of each of these entities shall be nominated by the
President and that such nominations will be confirmed by the
advice and consent of the Senate. The NSA, NGA, and NRO play a
critical role in the national intelligence mission of the
United States government. The spending of these agencies
comprises a significant portion of the entire intelligence
budget of the United States, and a substantial portion of the
National Intelligence Program. Through advice and consent, the
Senate can enable the Congress to fulfill more completely its
responsibility for providing oversight to the intelligence
activities of the U.S. Government. Section 436 does not alter
the role of the Committee on Armed Services in reviewing and
approving the promotion or assignment of military officers.
Section 436(b) provides that the amendments made by Section
436 apply prospectively. Therefore, the present Directors of
NSA, NGA, and NRO are not affected by the amendments, which
will apply initially to the appointment and confirmation of
their successors.
Section 437. Security clearances in the National Geospatial-
Intelligence Agency
Although the NSA and the NGA have much in common as
technical collection intelligence agencies administratively
linked with the DoD, their present authorities for handling
security clearances differ significantly. The Secretary of
Defense has delegated to the NSA authority for contracting out
background investigations and performing adjudications on
individuals doing work for the agency--both for government
employees and contractors. In contrast, the NGA must rely
exclusively on the Defense Security Service or the Office of
Personnel Management for background investigations and on the
DIA for adjudication. The consequences for processing times are
dramatic, particularly regarding contractor clearances.
According to information provided by the DNI's Special Security
Center, the average end-to-end processing times for contractors
in July 2005 was 73 days for NSA and 540 days for NGA.
The NGA's long backlog for contractor clearances is
deleterious for both the agencies and the contractors that
support them. For NGA, the backlog drives up financial costs
and makes it more difficult to compete for talent. The backlog
also distorts efficiencies and good business practices in the
private sector, as contractors adjust to the realities of
significantly different agency clearance timelines.
The Committee calls upon the Secretary of Defense and the
DNI to remedy this unacceptable situation and to report to the
intelligence committees on strategies to mitigate the present
situation within 90 days of the issuance of this Report. In so
doing, the Committee strongly urges the Secretary of Defense to
use all available legal authorities, including the delegation
of background investigation and adjudication authorities to the
NGA for a time-limited period to reduce current backlogs.
Subtitle D--Other Elements
Section 441. Department of Justice intelligence matters
Section 441 establishes a National Security Division (NSD)
within the DoJ, headed by an Assistant Attorney General for
National Security (AAGNS). This provision is consistent with
the WMD Commission's recommendation that the ``Department of
Justice's primary national security elements--the Office of
Intelligence Policy and Review, and the Counterterrorism and
Counterespionage sections--should be placed under a new
Assistant Attorney General for National Security.'' The
President endorsed this recommendation in a June 29, 2005,
memorandum for the Vice President, Secretary of State,
Secretary of Defense, Attorney General, Secretary of
HomelandSecurity, Director of OMB, DNI, Assistant to the President for
National Security Affairs, and Assistant to the President for Homeland
Security and Counterterrorism.
Like all other Assistant Attorneys General in the DoJ (see
28 U.S.C. 506), the AAGNS will be appointed by the President,
with the advice and consent of the Senate. The nomination of
any individual by the President to serve as the AAGNS shall be
referred to the Committee on the Judiciary and, if and when
reported, to the Select Committee on Intelligence for not to
exceed 20 calendar days (except that in cases where the 20-day
period expires while the Senate is in recess, the Select
Committee on Intelligence shall have five additional calendar
days after the Senate reconvenes to report the nomination). The
Attorney General must obtain the concurrence of the DNI prior
to making a nomination recommendation to the President for an
individual to serve as the AAGNS.
The AAGNS will be responsible for performing duties
assigned by both the Attorney General and the DNI. It is
important to note, however, that the DNI will have no authority
through the AAGNS to execute any police, subpoena, law
enforcement or prosecution powers or internal security
functions not otherwise authorized by law. Section 441 also
amends the Foreign Intelligence Surveillance Act of 1978 (FISA)
(50 U.S.C. 1801(g)) to allow the AAGNS, upon a designation by
the Attorney General, to approve applications for electronic
surveillance and physical searches for national security
investigations.
The Committee believes that the creation of an NSD within
the DoJ is an essential prerequisite for ensuring that the
AAGNS can effectively carry out the position's
responsibilities. The NSD will be a full element of the
Intelligence Community, except those portions or components
charged with the investigation or prosecution of domestic
terrorism. The NSD budget will be part of the National
Intelligence Program, and the Committee strongly urges that the
NSD budget should remain unclassified to the fullest extent
practicable. Although Section 441 leaves the organization of
the NSD to the discretion of the Attorney General, the
Committee believes that the NSD's organization and structure
should parallel other DoJ divisions. For example, the AAGNS
should supervise at least two Deputy Assistant Attorneys
General (DAAGs). One of these DAAGs should be a career criminal
prosecutor who would supervise the Counterterrorism and
Counterespionage sections. The other DAAG would supervise the
Intelligence Oversight Section and the FISA Support Section.
These sections would perform the responsibilities currently
assigned to the Office of Intelligence Policy and Review. The
AAGNS should also be afforded a Chief of Staff, an Office of
Administration, a Counselor to the Assistant Attorney General,
and an Office of Policy and Legislation. Section 441 also
permits the Attorney General and the DNI to jointly designate
any other element, component, or office of the DoJ (other than
the FBI) as a component of the NSD.
Like the Criminal Division, the NSD should be considered a
law enforcement agency, albeit one that specializes in the
prevention, detection, investigation, neutralization, and
prosecution of crimes that threaten the national security.
Through its components, the NSD should: (1) advise the Attorney
General on all matters relating to the national security
activities of the United States; (2) provide oversight of the
FBI's intelligence components to ensure that their activities
are conducted in accordance with the Constitution and the laws
of the United States; (3) supervise the investigation and
prosecution of cases affecting national security (e.g.,
international terrorism, sabotage, espionage, and other
national security or foreign intelligence crimes), foreign
relations, and the export of military and strategic commodities
and technology; (4) supervise and manage the FISA process; (5)
formulate legislative initiatives, DoJ polices, and guidelines
related to national security; (6) provide legal advice to
Federal prosecutors, investigators, and analysts concerning
national security legal authorities; (7) conduct training on
national security legal topics; (8) conduct liaison activities
with other Intelligence Community agencies; (9) facilitate
broad access to, and sharing of, foreign intelligence
information across the Intelligence Community and with Federal,
State, local, and tribal governments; (10) supervise the
preparation of the Division's submission for the annual budget;
and (11) perform other duties as assigned by the Attorney
General and DNI. The NSD is expected to actively participate in
the Intelligence Community's mission to prevent and otherwise
neutralize threats to the national security.
In matters of oversight, the activities of the AAGNS and
the NSD will be subject to the shared jurisdiction of the
Congressional appropriations, intelligence, and judiciary
Committees.
Section 442. Foreign language incentive for certain non-special agent
employees of the Federal Bureau of Investigation
Section 442 authorizes the Director of the FBI to pay a
cash award, up to 5 percent of basic pay, to any FBI employee
who uses or maintains foreign language skills in support of FBI
analyses, investigations, or operations to protect against
international terrorism or clandestine intelligence activities.
Such awards are subject to the joint guidance of the Attorney
General and the DNI.
The Committee believes that the guidance of the Attorney
General and DNI should reward FBI employees who are using one
or more foreign languages in the regular performance of their
official duties or maintaining proficiency in an obscure
language that is of occasional operational significance. An
employee should not automatically receive a 5 percent award for
proficiency in any language. An FBI employee working in support
of the FBI's counterintelligence mission who is fluent in
French, German, or Spanish should not be eligible for a foreign
language incentive, unless that employee is using those
language skills in the regular performance of his or her
official duties. However, the joint guidance should recognize
that there are certain languages of operational significance
that are not used on a routine basis, but for which a
significant incentive should be awarded to maintain the
necessary proficiency so that the employee can use the skill
for operational purposes when the need arises. Finally, the
joint guidelines should also provide for enhanced language
incentive awards for those employees who use multiple languages
in the performance of their duties, provided that no language
incentive award can exceed the cap of 5 percent of basic pay.
Section 443. Authority to secure services by contract for the Bureau of
Intelligence and Research of the Department of State
Section 443 authorizes the Secretary of State, in certain
circumstances, to enter into personal services contracts to
support the mission of the Department's Bureau of Intelligence
and Research (INR). The authority, which is similar to that
provided to the DoD (see 10 U.S.C. 129b), will enable INR to
obtain the services of personal services contractors to respond
to unanticipated surge requirements prompted by emergent events
or crises or under unique circumstances (e.g., to provide
temporary backup that will permit full-time employees to seek
needed training). Personal services contractors, particularly
those with previous INR experience, would also be valuable to
train and mentor new INR personnel.
Section 444. Clarification of inclusion of Coast Guard element in the
intelligence community
Section 444 restores, with respect to the United States
Coast Guard, the prior definition of ``intelligence community''
in the National Security Act of 1947 applicable to that
service. See 50 U.S.C. 401a. Section 1073 of the Intelligence
Reform Act modified the definition of ``intelligence
community,'' inadvertently limiting the Coast Guard's inclusion
in the Intelligence Community to the Office of Intelligence or
those portions of the Coast Guard concerned with the analysis
of intelligence. Section 444 clarifies that all of the Coast
Guard's intelligence elements are included within the
definition of ``intelligence community.''
Section 445. Clarifying amendments relating to Section 105 of the
Intelligence Authorization Act for Fiscal Year 2004
Section 445 clarifies that the establishment of the Office
of Intelligence and Analysis within the Department of the
Treasury (Section 105 of the Intelligence Authorization Act for
Fiscal Year 2004 (Pub. L. No. 108-177 (Dec. 13, 2003))), and
its reorganization within the Office of Terrorism and Financial
Intelligence (Section 222 of the Transportation, Treasury,
Independent Agencies, and General Government Appropriations
Act, 2005 (Division H, Pub. L. No. 108-447 (Dec. 8, 2004))), do
not affect the authorities and responsibilities of the DNI with
respect to the Office of Intelligence and Analysis as an
element of the Intelligence Community.
TITLE V--OTHER MATTERS
Section 501. Technical amendments to the National Security Act of 1947
Section 501 corrects several inadvertent technical
anomalies in the National Security Act of 1947 arising from the
amendments made to that Act by the Intelligence Reform Act.
Section 502. Technical clarification of certain references to Joint
Military Intelligence Program and Tactical Intelligence and
Related Activities
Section 502 makes technical clarifications to Section 102A
of the National Security Act of 1947 to preserve the
participation of the DNI in the development of the annual
budgets for any successor program or programs of the Joint
Military Intelligence Program (JMIP) and Tactical Intelligence
and Related Activities. Section 502 also preserves the
requirement for consultation by the Secretary of the Defense
with the DNI in the reprogramming or transfer of funds
involving any successor program or programs of the JMIP.
Section 503. Technical amendments to the Intelligence Reform and
Terrorism Prevention Act of 2004
Section 503 corrects a number of inadvertent technical
errors in the specified sections of the Intelligence Reform
Act.
Section 504. Technical amendment to the Central Intelligence Agency Act
of 1949
Section 504 amends Section 5(a)(1) of the CIA Act of 1949
by striking or updating outdated references to the National
Security Act of 1947. The Intelligence Reform Act significantly
restructured and renumbered multiple sections of the National
Security Act of 1947, leaving references in Section 5(a)(1) of
the CIA Act to provisions that no longer exist or that are no
longer pertinent.
Section 505. Technical amendments relating to the multiyear national
intelligence program
Section 505 updates the ``multiyear national foreign
intelligence program'' provision to incorporate and reflect
organizational and nomenclature changes made by the
Intelligence Reform Act.
Section 506. Technical amendments to the Executive Schedule
Section 506 makes several technical corrections to the
Executive Schedule. This section substitutes the ``Director of
the Central Intelligence Agency'' for the previous reference in
Executive Schedule Level II to the ``Director of Central
Intelligence.'' See 5 U.S.C. 5313. Section 506 also strikes
outdated references to Deputy Directors of Central Intelligence
from Executive Schedule Level III. See 5 U.S.C. 5314. The
provision also corrects the erroneous reference to the
``General Counsel to the National Intelligence Director'' in
Executive Schedule Level IV. See 5 U.S.C. 5315.
Section 507. Technical amendments relating to redesignation of the
National Imagery and Mapping Agency as the National Geospatial-
Intelligence Agency
Section 507 makes several technical and conforming changes
to existing law to bring these provisions in line with the
change in name of the National Imagery and Mapping Agency to
the NGA, as provided for in Section 921(b) of the National
Defense Authorization Act for Fiscal Year 2004 (Pub. L. No.
108-136 (Nov. 24, 2003)).
COMMITTEE ACTION
Motion to close
On September 22, 2005, on the motion of Chairman Roberts,
the Committee agreed, by unanimous consent, to close the markup
because matters under consideration at the meeting would
require the discussion of information necessary to be kept
secret in the interests of national defense or the confidential
conduct of the foreign relations of the United States.
Motion to report committee draft bill favorably subject to amendments
On September 22, 2005, on the motion of Chairman Roberts,
by a vote of 15 ayes and 0 noes, the Committee voted to report
the bill favorably, subject to amendment. The votes in person
or by proxy were as follows: Chairman Roberts--aye; Senator
Hatch--aye; Senator DeWine--aye; Senator Bond--aye; Senator
Lott -aye; Senator Snowe--aye; Senator Hagel--aye; Senator
Chambliss--aye; Vice Chairman Rockefeller--aye; Senator Levin--
aye; Senator Feinstein--aye; Senator Wyden--aye; Senator Bayh--
aye; Senator Mikulski--aye; Senator Corzine--aye.
Amendments to committee bill
On September 22, 2005, by a vote of 15 ayes and 0 noes, the
Committee agreed to an amendment by Senator Mikulski to require
that the Directors of the NSA, NGA, and NRO be appointed by the
President, by and with the advice and consent of the Senate.
The votes in person or by proxy were as follows: Chairman
Roberts--aye; Senator Hatch--aye; Senator DeWine--aye; Senator
Bond--aye; Senator Lott--aye; Senator Snowe--aye; Senator
Hagel--aye; Senator Chambliss--aye; Vice Chairman Rockefeller--
aye; Senator Levin--aye; Senator Feinstein--aye; Senator
Wyden--aye; Senator Bayh--aye; Senator Mikulski--aye; Senator
Corzine--aye.
On September 22, 2005, the Committee agreed, by unanimous
consent, to an amendment by Senator Mikulski to provide the DNI
or the Secretary of Defense with additional authority to
delegate security clearance responsibilities to the NGA until
December 31, 2007.
On September 22, 2005, by a vote of 8 ayes and 7 noes, the
Committee agreed to an amendment by Senator Levin (for himself
and Senator Hagel) that would require certain officials to
provide to Congress requested intelligence documents and
information within 15 days, unless the President refuses to
provide the documents or information based on an assertion of a
privilege pursuant to the Constitution. The votes in person or
by proxy were as follows: Chairman Roberts--no; Senator Hatch--
no; Senator DeWine--no; Senator Bond--no; Senator Lott--no;
Senator Snowe--no; Senator Hagel--aye; Senator Chambliss--no;
Vice Chairman Rockefeller--aye; Senator Levin--aye; Senator
Feinstein--aye; Senator Wyden--aye; Senator Bayh--aye; Senator
Mikulski--aye; Senator Corzine--aye.
On September 22, 2005, by a vote of 9 noes and 6 ayes, the
Committee rejected an amendment by Senator Levin to modify
Section 307 to require the Director of the FBI to request, on
behalf of a lawful and authorized activity of an element of the
Intelligence Community, information regarding international
terrorism or proliferation of weapons of mass destruction from
a non-Intelligence Community element; to require non-
Intelligence Community elements to provide terrorism
information or information concerning the proliferation of
weapons of mass destruction to the Intelligence Community
through the FBI; and to modify the date on which certain
reports must be filed regarding the pilot program established
under Section 307. The votes in person or by proxy were as
follows: Chairman Roberts--no; Senator Hatch--no; Senator
DeWine--no; Senator Bond--no; Senator Lott--no; Senator Snowe--
no; Senator Hagel--no; Senator Chambliss--no; Vice Chairman
Rockefeller--aye; Senator Levin--aye; Senator Feinstein--aye;
Senator Wyden--aye; Senator Bayh--aye; Senator Mikulski--no;
Senator Corzine--aye.
COMMITTEE COMMENTS
Appointment of the General Counsel of the Central Intelligence Agency
Section 20 of the CIA Act of 1949 provides that the General
Counsel of the CIA be appointed by the President, with the
advice and consent of the Senate. Section 20 of the CIA Act was
enacted in 1996 as part of the Intelligence Renewal and Reform
Act of 1996 (Section 813, Intelligence Authorization Act for
Fiscal Year 1997, Pub. L. No. 104-293 (Oct. 11, 1996)). Prior
to the enactment of Section 20, the Committee had encouraged
the creation of the position, consistent with the
recommendations of the Church Committee and the Iran-Contra
Committees. At the time Section 20 was enacted, the Committee
believed that the nature of the legal advice provided by the
CIA General Counsel on sensitive matters such as covert action
and other activities merited close scrutiny of the individual
performing these duties through appointment by the President
and approval of the Senate.
With passage of the Intelligence Reform Act, establishment
of the position of DNI, and the creation of a General Counsel
of the Office of the DNI, the responsibilities of the CIA
General Counsel should be considered in light of the
responsibilities of the DNI and the DNI General Counsel.
Indeed, the Committee expects that many of the sensitive legal
functions previously performed by the CIA General Counsel--on
behalf of the former DCI, as both head of the CIA and of the
entire Intelligence Community--will now be performed, or
closely managed and directed, by the DNI General Counsel. In
particular, given the DNI's responsibility under Section
102A(f)(4) of the National Security Act of 1947 to ``ensure
compliance with the Constitution and laws of the United States
by the CIA [and other elements of the Intelligence
Community],'' the Committee expects that the DNI General
Counsel will provide important legal guidance and serve as
theprimary legal advisor on activities such as covert actions and the
collection, analysis, and dissemination of foreign intelligence or
counterintelligence information concerning U.S. persons. The
Committee's expectations regarding the DNI General Counsel do not
diminish the importance of the CIA General Counsel in providing
important legal guidance on the sensitive activities of the CIA. The
fulfillment of the Committee's expectations may, however, lessen the
need to have a CIA General Counsel that is a Presidential nominee,
confirmed with the advice and consent of the Senate.
In the request for legislative authorities for fiscal year
2006, the DNI included a provision that would have eliminated
the requirement for the CIA General Counsel to be appointed by
the President, with the advice and consent of the Senate.
Instead, the provision would have granted the appointment
authority to the Director of the CIA. Although the Committee
has not included this provision in this legislation, it may be
appropriate at a later date to revisit the method in which the
CIA General Counsel is appointed. In making this determination,
the Committee will consider the role the DNI General Counsel
fills in providing legal advice on sensitive matters such as
covert action and other sensitive activities--roles the
Committee envisioned for the CIA General Counsel in 1996. As
the Committee monitors the development of the respective roles
of the DNI and CIA general counsels, the Committee strongly
encourages the President to appoint a qualified candidate to
serve as the CIA General Counsel consistent with the advice-
and-consent requirements of current law.
Management of United States Government Human Intelligence Activities
The collection of timely and useful human intelligence
(HUMINT) is crucial to protecting against some of the most
serious threats to our national security. Prior to the
enactment of the Intelligence Reform Act, the DCI, in his
capacity as head of the CIA, had the statutory responsibility
for overall direction and coordination of the nation's human
intelligence operations--a responsibility often referred to as
the ``National HUMINT Manager.'' When the position of DNI was
established, and leadership of the Intelligence Community and
the CIA was separated, the Director of the CIA was given the
statutory responsibility for overall direction of the nation's
overseas HUMINT operations. Given the Intelligence Community--
wide responsibilities and authorities of the DNI, however, the
Director of the CIA's authority is now subject to broad
authorities granted to the DNI, including the DNI's
responsibility to ``manage and direct the tasking of,
collection, analysis, production, and dissemination of national
intelligence by elements of the intelligence community.'' See
Section 102A(f)(1)(A)(ii) of the National Security Act of 1947
(50 U.S.C. 403-1(f)(1)(A)(ii)).
A number of inquiries have revealed shortcomings and
failures of the nation's HUMINT operations. This Committee, the
Joint Inquiry into Intelligence Community Activities before and
after the Terrorist Attacks of September 11, 2001, the National
Commission on Terrorist Attacks upon the United States, and the
WMD Commission have all documented instances in which the
nation's HUMINT operations were hindered by lack of innovation,
aversion to risk, and failure to coordinate. This Committee has
also observed that the CIA's DO (acting as the designee of the
DCI) did not effectively exercise the authorities of the
National HUMINT Manager, often focusing instead on its own
structure and operations instead of coordinating a strong,
Intelligence Community-wide HUMINT effort. In this regard, the
Intelligence Community's HUMINT operations have lacked strong
leadership and an effective mechanism to resolve conflicts
among Intelligence Community elements attempting to conduct
HUMINT operations.
In the wake of the intelligence failures associated with
the attacks of September 11, 2001, and the Intelligence
Community's assessment of Iraq's weapons of mass destruction
program, Congress enacted the Intelligence Reform Act, creating
a DNI with the authority, inter alia, to establish the
objectives, priorities, and guidance for, and direct the
collection of, national intelligence. The Committee urges the
DNI to use the authorities granted under the Act to directly
manage and oversee the conduct of HUMINT operations across the
Intelligence Community. Indeed, as elements of the Intelligence
Community, such as the DIA and the FBI, and other United States
government agencies, such as the DoD, place a greater emphasis
on HUMINT operations, it is imperative that the DNI exercise
the authority to prioritize, direct, and coordinate the
Intelligence Community's HUMINT operations. The Committee
expects the DNI, as ``National HUMINT Manager,'' to provide a
level playing field across the community for all elements
engaged in HUMINT operations. In furtherance of this goal, the
Committee urges the establishment of standards and guidelines
for training, coordination, and deconfliction of HUMINT
operations and for the allocation of manpower and resources for
HUMINT operations across the Intelligence Community. The
Committee looks forward to the DNI's efforts in this regard and
will work closely with the DNI, and all elements of the
Intelligence Community that conduct HUMINT operations, to
ensure the authorities and resources necessary to fulfill this
important Intelligence Community mission are provided.
Currently, the DNI's staff that manages HUMINT issues is
largely composed of former officers from a single Intelligence
Community element. The Committee believes that this staff will
perform its duties in an evenhanded manner. Unfortunately,
however, perception is often as important as reality. The
Committee believes it is critical that the DNI move quickly to
ensure that all Intelligence Community HUMINT agencies are more
adequately represented on the DNI's HUMINT management staff.
This action by the DNI will give all Intelligence Community
HUMINT elements confidence that the DNI is working to create a
level playing field for HUMINT operations.
Defense HUMINT Management Office
The Committee supports the creation of the Defense HUMINT
Management Office (DHMO) as a means of executing DoD objectives
under the DoD HUMINT Enterprise, including the intelligence
activities of the military department counterintelligence
agencies. The Committee also supports full and extensive
oversight and coordination of the Department's HUMINT efforts
by the DNI.
Following the September 11, 2001, terrorist attacks, the
military services have been authorized to rebuild their HUMINT
capabilities. Given the number of DoD entities now authorized
to collect intelligence through human sources, the Committee
expects the DHMO willprovide crucial direction, prioritization,
and coordination of DoD's various HUMINT activities. Moreover, the
Committee expects the DHMO to facilitate the DNI's efforts to direct
and prioritize national intelligence activities across the Intelligence
Community, including DoD HUMINT collection.
The Committee recommends that the DHMO be granted the
authority to direct and control DoD's collection of
intelligence through human sources, consistent with the
guidance and direction of the DNI. The Committee also expects
the Secretary of Defense to work with the DNI to take all
appropriate steps to support the operations of the DHMO and to
develop standards and procedures for the coordination,
consultation, and deconfliction of DoD and other Intelligence
Community HUMINT activities.
Treatment of Intelligence Community Detainees
During his February 16, 2005, testimony in open session
before the Committee, then-Director of Central Intelligence
Porter Goss stated that the CIA had received a CIA Inspector
General report on the treatment of detainees by members of the
Intelligence Community. Director Goss stated that he believed
that eight of the ten recommendations made by the CIA Inspector
General had been implemented by the CIA.
According to the CIA's Office of Inspector General, only
five of the ten corrective recommendations have been
implemented. The Committee is concerned with this delay in
implementation and urges the Director of the CIA, in
consultation and coordination with the DNI, to complete the
remaining actions recommended by the CIA Inspector General
without further delay.
The National Counterterrorism Center and Information Access
For many years, the Intelligence Community has sought to
achieve greater coordination of intelligence analysis and
operations through the creation of centers. Although some
successes have been achieved through the use of centers, the
Committee is increasingly concerned that the proliferation of
``centers'' throughout the Intelligence Community may have
become a crutch that prevents the fundamental evolution of the
Intelligence Community from a stove-piped system of
intelligence collectors to a flexible intelligence information
enterprise--where data is readily accessible, via technological
means, by any Intelligence Community officer or employee with
an appropriate security clearance and a need-to-know regardless
of the agency that collected the data. To more closely examine
this concern, the Committee Audit and Evaluations Staff is
conducting an oversight review of the organization of the
Intelligence Community around centers.
The Committee is also concerned that limits on information
access--whether based on legal interpretations or ineffective
policy--are migrating from parent agencies into the NCTC and
possibly other centers. When the NCTC and its predecessor, the
Terrorist Threat Integration Center (TTIC), were established,
the Committee expected that these centers would become models
for information access--true interagency information fusion
centers, with representation from all concerned Intelligence
Community elements and with policies and procedures that
transcended previous limitations on information access and
distribution, promoting information access across the
Intelligence Community and, as appropriate, with other Federal,
State, and local officials.
In several instances since the establishment of the TTIC,
the Committee has been disappointed by ineffective information
dissemination practices at the TTIC and the NCTC. The Committee
is extremely frustrated that four years after the terrorist
attacks of September 11, 2001, and after Intelligence Community
promises to improve information sharing, the Community appears
to have made little progress in this regard. The Committee was
particularly perplexed by divergent threat analyses preceding
the 2004 Presidential election. During this period, separate
Intelligence Community elements reached different conclusions
on the level of the terrorist threat to the homeland, and the
divergence seemed to be based on one element's lack of access
to another element's intelligence reporting and to associated
background information. Each Intelligence Community element
brings a unique and critical perspective to its analytic
mission, but without timely, equivalent access to intelligence
information these analysts--scattered throughout the
Intelligence Community but covering similar analytic topics--
cannot effectively conduct their respective missions. The
Committee has strongly encouraged thoughtful and in-depth
intelligence analysis that may lead to separate analytic
conclusions, but the underlying analysis must be based on
similar data sets or the divergent conclusions add little value
to the policymaking process. Indeed, these sorts of divergent
conclusions--based on different data--can actually cause
significant confusion among policymakers and lead to delays in
the implementation of policies and procedures necessary to
protect the United States and its interests.
The Committee's continuing concern with information access
does not mean, of course, that all analysts will have access to
all data. Rather, the Committee's construct of ``information
access'' specifically recognizes that only appropriately
cleared analysts working on a specific topic will have access
to all information relevant to that topic. In addition to
information technology solutions and the removal of legal and
policy impediments, the Committee believes that information
access by analysts, with a valid need-to-know, will also
require the DNI to effectively manage the overall Intelligence
Community analytic mission. Historically, this management has
been lacking. The Committee is concerned that the nature of
analysis is such, particularly as it relates to international
terrorism, that every Intelligence Community element wants its
analysts' opinion on every intelligence topic. The Committee
believes that this distribution of analytic resources leads to
inappropriate duplication of effort. While the Committee
supports alternative analysis and ``red teaming,'' given the
limitation on Intelligence Community analytic resources, the
Committee expects the DNI to carefully examine the analysis
mission to address the full spectrum of threats, both immediate
and strategic. This effort to administer dispersed analytic
resources will benefit efforts to promote real ``information
access.''
The effectiveness of the NCTC as an information fusion
center has been hindered by a lack of formal procedures to
guide NCTC analysts on how information can be distributed from
the NCTC back to the analysts' parent agencies. The NCTC
presently operates on a loose, informal system that the former
Director of the NCTC described as ``the rules of the road.''
Under these``rules,'' NCTC analysts assigned from their parent
agencies are granted access to databases from other Intelligence
Community elements--access they would not have had at their parent
agencies. If an NCTC analyst finds intelligence reporting based on this
database access which he believes should be distributed to other
analysts at his parent agency, the analyst must ask a reports officer
from the Intelligence Community element responsible for the report to
expand its dissemination. If the reports officer denies the request,
the NCTC analyst must then ask his superiors at the NCTC, perhaps even
the Director of the NCTC, to assist him in his efforts. The NCTC does
not have clear procedures in place to guide this process. The NCTC also
fails to keep records documenting how often these requests occur and
the outcome of the process with respect to each request. This lack of
process and metrics is not acceptable. The Committee directs that the
DNI draft formal guidelines to address this issue, monitor all
instances of requests for broader access to information under these
procedures, and track the outcomes of such requests.
The information access problems experienced at the NCTC are
a microcosm of the problems confronting the entire Intelligence
Community. Arcane policies and procedures--vestiges of a stove-
piped intelligence system--continue to prevent broader data-
level access to intelligence information. With respect to the
applicable statutes, Executive orders, regulations, policies,
and legal interpretations that inhibit all-source intelligence
analysis, the Committee has now received the report of the ISWG
convened by the Intelligence Community Deputies Committee.
Based on the work of the ISWG and this Committee's continuing
oversight of the Intelligence Community's information access
standards, the Committee has included a pilot program in
Section 307 of the bill to provide a limited exception to the
Privacy Act to permit certain disclosures within the
Intelligence Community and between the Intelligence Community
and other departments and agencies of the United States
government. The Committee will continue to conduct independent
oversight and to review the work of the ISWG to determine
whether additional legislative action is required.
Report on Advanced Analytic Tools and Information Access Impediments
Congress, in the Conference Report to accompany H.R. 2417,
the Intelligence Authorization Act for Fiscal Year 2004, Pub.
L. No. 108-177 (Dec. 13, 2003), directed a report on the
application of the Constitution, laws, regulations, Executive
orders, and guidelines of the United States to the use of
advanced analytic tools by the Intelligence Community. The
Committee believed that this report was part of the work of the
ISWG, but the issues were not included in that product. The
Committee understands that work on this report continues in the
Executive Branch, but is quite concerned that the report is now
well overdue. The Committee renews its request for a report on
these matters. The report by the Attorney General and DNI (now
nearly five months overdue) should be provided to the
intelligence committees no later than six months after issuance
of this Report.
In addition, the Committee directs the Attorney General,
Secretary of Homeland Security, and DNI to provide a report to
the Committee on the outcome of the review required by Section
4 of Executive Order 13356 (Aug. 27, 2004). Under Section 4,
the Attorney General, Secretary of Homeland Security, and
former DCI were directed to report to the President their
recommendations ``on the establishment of Executive Branch-wide
collection and sharing requirements, procedures, and guidelines
for terrorism information to be collected within the United
States, including, but not limited to, from publicly available
sources, including nongovernmental databases.'' The report was
required to be provided to the President by late November 2004.
The Committee has not yet been informed of any recommendations
contained in the report (or whether that report was ever, in
fact, provided to the President).
Information Technology and Information Access
As discussed previously, the NCTC's struggle with
information technology and access solutions also highlights
greater Intelligence Community-wide difficulties. The
development of an Intelligence Community enterprise
architecture and shared technological standards for information
technology and applications, enforced by a Community-wide
manager, is a necessary first step in ensuring secure
information exchange across disparate Intelligence Community
networks. To that end, the Committee continues to underscore
the significance of the position of CIO of the Intelligence
Community. See Section 407 of the bill. The Intelligence
Community also lacks a comprehensive, coordinated investment
portfolio for the research and development of processing,
analysis, and collaboration technologies that would enable
broader and more sophisticated access by analysts to
information lawfully collected by the Intelligence Community.
The Committee is concerned that the Intelligence Community
continues to devote significant amounts of funding to
collection without a comprehensive, balanced investment in
processing, analysis, and collaboration technology. The
development and use of these processing, analysis, and
collaboration technologies could help address the vast
differences in the amount of information the Intelligence
Community collects versus the information it actually analyzes.
The Committee expects that the DNI, through the CIO of the
Intelligence Community, will take appropriate steps to address
this deficiency in future budgets for the Intelligence
Community.
Classification and Information Access
Section 102A(i)(2)(A) of the National Security Act directs
the DNI to establish and implement guidelines for the
classification of information, under applicable law, Executive
orders, or other Presidential directives. The Committee
strongly recommends that the DNI examine the guidelines and
rules for classification, and, as necessary, propose standards
for the modernization and simplification of the classification
system. This review, and any associated recommendations, should
attempt to maximize information access while maintaining limits
on the disclosure of truly sensitive intelligence or national
security information.
Classification of data by its very nature limits access to
information. Although classification is often necessary to
protect sensitive intelligence or national security
information, overclassification can have serious consequences
on the ability of the Intelligence Community to accurately
assess information, and on the ability of policymakers to
effectively respond to national security threats. Improper
classification of information--the disclosure of which would
not harm national security--prevents the public from
considering national issues in light of all publicly available
facts.
In addition to the DNI's responsibilities noted above,
Section 1016(d)(3)(A) of the Intelligence Reform Act directs
the President to require the heads of Federal departments and
agencies to promote a culture of information sharing by
reducing disincentives to information sharing, including
overclassification. The Committee notes that while some
departments and agencies have begun to reduce these
disincentives, barriers to effective information access remain.
The Committee encourages the President to address the
requirements of Section 1016, particularly in the context of
the ``Information Sharing Environment.''
The Information Sharing Environment
The Intelligence Reform Act also required the creation of
the ``Information Sharing Environment'' (``Environment'') for
terrorism information. The Environment, when fully implemented,
is to be a combination of policies, procedures, and
technologies to facilitate the sharing of terrorism
information, as appropriate, among Federal, State, local, and
tribal governments, and the private sector, whether collected,
produced, or distributed by intelligence, law enforcement,
military, homeland security, or other activities. By statute,
the Environment is to be implemented government-wide. The
Committee expects the Program Manager, under the direction,
control, and authority of the DNI, to drive the creation of the
Environment across the Federal government. The Committee will
closely monitor the development of the Environment and its
coordination with the Intelligence Community's own information
technology enterprise architecture.
The Committee looks forward to working with the Program
Manager to eliminate unreasonable and unnecessary legal and
policy impediments to greater information access. In that
regard, the Committee awaits the development and implementation
of the guidelines required by Section 1016(d) of the
Intelligence Reform Act. The Committee directs that the Program
Manager report to the Committee regarding the guidelines
developed under that section.
Reorganization of Intelligence Community Elements
As the President, DNI, and other officials implement the
Intelligence Reform Act, consider the recommendations of the
WMD Commission, and take other steps to reorganize the elements
of the Intelligence Community, the intelligence committees must
be kept fully and currently informed of all planned
reorganization activities, including efforts to reorganize
within elements of the Intelligence Community or reorganize the
structure and role of Intelligence Community elements within
the parent departments and agencies of such elements. The
Committee is aware of reorganization efforts at the CIA,
Department of Homeland Security, Federal Bureau of
Investigation, and other Intelligence Community elements. All
elements of the Intelligence Community engaged in
reorganizations should ensure that the DNI is kept fully and
currently informed of the activities and is fully coordinated
with on all significant decisions.
Congress should also be consulted on any significant
decisions to restructure the organization or roles of
Intelligence Community elements. Under Title V of the National
Security Act of 1947, the DNI, the heads of all elements of the
Intelligence Community, and the heads of all departments and
agencies of the United States government are required to keep
the intelligence committees fully and currently informed of all
intelligence activities. The intelligence committees should not
be required to consider reorganization plans after they have
been finalized. Instead, consistent with the requirements of
Title V, the intelligence committees should be provided with
sufficient opportunity to review and respond to such proposals.
A failure to consult with the intelligence committees during
the early stages of planning will increase the likelihood that
it is necessary for the committees to act, through legislation
or through the annual budget process, to remedy inefficient or
ineffective structures resulting from agency reorganizations.
Report on the Creation of an Intelligence Community Reserve Account
Since its creation, the CIA has utilized a ``reserve for
contingencies'' that permitted the DCI (now, the Director of
the CIA) to transfer funds, with appropriate notification to
Congress, to address significant intelligence needs that arise
during a fiscal year and that must be addressed outside the
normal budget process. The CIA Reserve has proven crucial in
permitting the flexibility required to address operational
realities as they arise.
As the Committee continues to examine the budgetary and
management authorities of the DNI, it may be appropriate to
provide the DNI with a ``reserve for contingencies'' for use
across the Intelligence Community to address emergency needs or
operational exigencies. Any grant of authority would require
legislative action outlining specific limitations on use,
requirements for notification to the intelligence committees,
and strong control by the DNI. Under extremely limited
circumstances and with prior notification to Congress, it may
also be appropriate to permit the DNI to transfer certain
limited categories of funds to this reserve account for use
without fiscal year limitation. The flexibility of a reserve
and the ability to transfer funds to a reserve for later use
would require a strong commitment from the DNI to eliminate
waste in budget requests and to fully comply with the
requirement to produce independent cost estimates for major
systems, as required by Section 506A of the National Security
Act of 1947. In addition, the DNI would need to closely examine
how the reserve account is used so that excessive balances were
not maintained in the account over extended periods of time.
To aid the Committee as it considers possible legislative
action on this topic, the Committee directs the DNI to provide
a report to the intelligence committees within 90 days of
release of this Report concerning the possible creation of a
``reserve for contingencies'' for the Intelligence Community
and whether the reserve would provide needed budgetary and
operational flexibility. The DNI should also report to the
intelligence committees regarding the management of existing
reserve accounts, including steps the Office of the DNI will
take to ensure that excessive balances are not maintained in
these reserves for extended periods. The DNI should also
provide any additional information deemed appropriate related
to this topic, including any specific recommendations regarding
the creation or construction of a ``reserve for contingencies''
for the Intelligence Community or other authorities needed to
provide needed budgetary flexibility.
Central Intelligence Agency Organization
The CIA is a dynamic organization. For example, the
Directorate of Support was created in 2005, and in the last few
years, new centers and offices have been created, functions
have been consolidated, and new directors, deputy directors,
and associate directors have been appointed. To keep up with
these changes and to assist in coordination, the CIA widely
distributes throughout the Agency an organization chart that is
updated quarterly. To assist the Congress in its oversight
responsibilities, the Committee directs the CIA to distribute
its organization chart to each of the intelligence committees
by November 1, 2005, and thereafter to provide those committees
with each updated version of the organization chart.
Public Interest Declassification Board
Section 1102 of the Intelligence Reform Act extends and
expands the mandate of the Public Interest Declassification
Board. To date, no funds have been made available for the Board
to begin operations in fiscal year 2005, and the Administration
did not include any money to fund the Board's operations in its
budget request for the National Archives and Records
Administration for fiscal year 2006. While this omission is
understandable, as the Intelligence Reform Act was not passed
until well into the budgeting process, the Committee is
recommending the authorization of funds to allow the Board to
begin its important work in fiscal year 2006. The
Administration should also include sufficient funding for the
Board in future budget requests, starting with the fiscal year
2007 budget request, either under the National Archives and
Records Administration or another appropriate account.
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 the legislation. On September
29, 2005, the Committee transmitted this bill to the
Congressional Budget Office and requested that it conduct an
estimate of the costs incurred in carrying out the provisions
of this bill.
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.
CHANGES IN EXISTING LAWS
In the opinion of the Committee, it is necessary to
dispense with the requirements of paragraph 12 of rule XXVI of
the Standing Rules of the Senate in order to expedite the
business of the Senate.
ADDITIONAL VIEWS OF SENATOR SNOWE
I would like to thank the Chairman and the Committee for
including Section 408, the Inspector General of the
Intelligence Community, in the underlying bill.
As many may know, before the release of the report of the
National Commission on Terrorist Attacks upon the United
States, I introduced stand-alone legislation-cosponsored by
Senator Mikulski, Senator Roberts, and Senator Feinstein--
creating an Inspector General for Intelligence. The
``Intelligence Community Accountability Act of 2004'' proposed
an independent Inspector General for the entire Intelligence
Community--all fifteen agencies.
The Inspector General that I had envisioned was undoubtedly
created in the same vein as the Inspector General that the
Committee contemplated when it drafted Section 408. Section 408
stipulates that the Inspector General (IG) of the Intelligence
Community (IC):
1. Has the ability to initiate and conduct
independent investigations, audits and inspections
relating to the programs and operations of the IC, and
the relationships between the elements of the IC within
the National Intelligence Program and the other
elements of the intelligence community ensuring that
the office's jurisdiction is not confined to the
National Intelligence Program;
2. Has the ability to recommend policies and the
implementation of those policies, enabling the IG to
making sweeping recommendations to the entire IC;
3. Provides a means for keeping the Director of
National Intelligence (DNI) fully and currently
informed of problems and deficiencies, as well the
progress of any recommended corrective actions;
4. Shall be appointed by the President and confirmed
by the Senate and report directly to the DNI;
5. May only be removed from office by the President;
6. May only be prohibited from initiating, carrying
out, or completing an investigation, inspection, or
audit by the DNI, and only if the DNI determines that
it is vital to national security;
7. Shall have direct and prompt access to the DNI or
any employee or any employee of a contractor of any
element of the IC and failure to cooperate shall be
grounds for appropriate administrative action,
including loss of employment;
8. Shall have access to all records, reports, audits,
reviews, documents, papers, recommendations, or other
material, and the level of classification shall not
provide a sufficient rationale for denying the IG
access to those materials;
9. Is authorized to receive and investigate
complaints from any person and, once such a complaint
has been received, the IG may not disclose the identity
of the individual filing the complaint without that
person's consent;
10. Shall have the authority to administer to or take
an oath, affirmation, or affidavit from any person and
such an oath will have the same force and effect as an
officer having a seal;
11. Is authorized subpoena power;
12. Shall expeditiously resolve which IG shall
conduct an investigation in the event of a matter of
jurisdiction of the another IC agency; however the IG
of the IC shall make the final decision on the
resolution of such jurisdiction;
13. May conduct a separate investigation, inspection,
or audit of any matter if the IG of the IC determines
that the initial investigation conducted by an IG other
than the IG of the IC was deficient;
14. Shall be provided with a staff large enough to
carry out the functions of the IG effectively;
15. Shall create a career cadre to provide
appropriate continuity;
16. May request information or assistance from any
department, agency, or other element of the United
States government and upon request of the IG of the IC
shall furnish such information or assistance;
17. Shall ensure that each IG of an element within
the IC complies fully with a request for information or
assistance from the IG of the IC;
18. May, upon reasonable notice, conduct an
investigation, inspection, audit of any element in the
IC and may enter into any place occupied by any agency
giving the IG access to real-time operations;
19. Shall submit to the DNI a classified and
unclassified semiannual report summarizing its
activities;
20. Shall immediately notify the congressional
intelligence committees if the IG, after exhausting all
possible alternatives, is unable to obtain documents in
the course of an investigation;
21. Shall include in the National Intelligence
Program budget a separate account for the office of IG
of the IC;
22. Shall not have any duty, responsibility, or
function regarding another element of the IC be
construed to modify of effect the duties of any other
IG; and,
23. Must notify Congress if an investigation of any
Senate-confirmed community official is initiated.
These key components were the tenets of my proposed
legislation. I would like to, once again, thank the Chairman
and the Committee for its valiant effort and commend the
drafters of this bill who clearly understand the necessity of a
community inspector general.
Olympia J. Snowe.
ADDITIONAL VIEWS OF SENATORS ROCKEFELLER, LEVIN, FEINSTEIN, WYDEN,
BAYH, MIKULSKI, AND CORZINE
The process leading up to Committee action on this bill and
report followed the long tradition of bipartisanship on the
Senate Select Committee on Intelligence. The various provisions
in the public legislation and the budget guidance in the
classified annex accompanying the bill were the result of
extensive consultation and negotiation in which all members'
perspectives were heard. Although some members had serious
reservations about specific provisions, all members voted to
report the bill to the Senate.
There are two areas, however, not directly related to the
bill, that reflect a serious disagreement among Committee
members. These issues not only reflect a breakdown of the
Committee's bipartisan tradition, but a failure in conducting
its basic oversight responsibilities. The first is the
Committee's very limited progress toward completing the second
phase of its inquiry related to pre-war intelligence on Iraq.
The second is the Committee's refusal, despite repeated
requests from the minority, to initiate a formal review of the
many questions surrounding the detention, interrogation and
rendition of individuals held in U.S. custody. These two issues
are discussed more fully following specific comments related to
the bill.
HUMAN INTELLIGENCE AND THE CENTRAL INTELLIGENCE AGENCY
In the past few years, this Committee, and many other
commentators, have pointed out the shortcomings of our nation's
human intelligence collection efforts. Our spies had not
penetrated al Qaida prior to 9/11 and they had not penetrated
Saddam's inner circle prior to the Iraq war. The report
includes language that could give the impression this problem
existed because the Central Intelligence Agency (CIA) had too
much authority. The report language suggests the Directorate of
Operations has performed so poorly that human intelligence can
be improved only by stripping the agency of its position as the
Intelligence Community's primary human intelligence collection
organization.
This assessment is off the mark and the solution misguided.
We had too little intelligence prior to 9/11 and the war in
Iraq in part because our nation reduced its investment in
intelligence, particularly human intelligence, for a decade
beginning in 1989. The understandable desire to cut spending on
national security programs after the Cold War led to the
closure of CIA stations and bases and a pull back from the
CIA's global presence. Other problems certainly affected the
CIA as it struggled to transition from the Cold War, but
clearly the reduction in resources was a significant factor.
The CIA began rebuilding its cadre of case officers in 1999
and accelerated that process after September 11, 2001. This
rebuilding is a lengthy process and it will be some time before
we realize all the benefits. But even without the infusion of
new talent, the CIA's Directorate of Operations is populated
with dedicated, brave individuals who serve around the world in
dangerous assignments with little or no recognition. They are
innovative, resourceful and not afraid to take risks, both
professional and personal. As we change organizational
structures in an attempt to correct the mistakes of the past,
we must keep these individuals in mind and make sure we do not
do damage to what works.
Section 403 of the bill is designed to ensure that the
Director of National Intelligence has the final authority over
decisions regarding dissemination of intelligence information
from human sources. Language in the report accompanying the
bill alludes to problems that have surfaced in the past when
information is not shared to the greatest extent practical.
Indeed, both 9/11 and the Iraq intelligence failures have
highlighted the need for better information access. But the
information access problems identified after those events were
not limited to human intelligence; they were structural
problems across the Intelligence Community. These structural
problems were among the most compelling arguments for the
creation of the Office of the Director of National Intelligence
(DNI) last year. And in creating that office, the Congress
imbued it with the authority necessary to obtain access to all
intelligence information and to manage the dissemination of
that information.
Given the broad authority provided to the DNI in the
Intelligence Reform and Terrorism Prevention Act of 2004, it is
unclear why the additional authority of Section 403 is
necessary. It also is unclear why the additional authority is
required for information related to human intelligence, but no
other intelligence discipline.
The report includes language under the heading of
``Committee Comments'' sharply critical of the Central
Intelligence Agency's performance as the ``National HUMINT
Manager.'' The report suggests the DNI is better suited for
this job.
The Committee certainly should support the DNI and ensure
the authority given the office is exercised to the fullest
extent and for the betterment the Intelligence Community. But
the clear intent of the Congress in passing the Intelligence
Reform Act was to create a DNI that manages the Intelligence
Community by making use of the considerable expertise that
exists within the various agencies. The Director of the
National Security Agency is the Intelligence Community
functional manager for signals intelligence; the Director of
the National Geospatial-Intelligence Agency is the Intelligence
Community functional manager for imagery intelligence; and the
Director of the CIA has been the Intelligence Community
functional manager for human intelligence. There are other
elements of the Intelligence Community involved in each of
these collection disciplines, but the heads of these agencies
are the individuals with the expertise and scope to properly
coordinate and de-conflict the activities of all the
contributing agencies. Any change to these responsibilities is,
at best premature, just one year after passage of the
Intelligence Reform Act. The DNI was not established as a new
bureaucracy to assume the responsibility for day-to-day
intelligence operations.
The report language describes the need to have the DNI
resolve conflicts among intelligence organizations conducting
human intelligence. The language does not, however, describe
what those conflicts might be. The CIA has, in fact, recently
reached separateagreements with the Federal Bureau of
Investigation (FBI) and the Department of Defense to avoid confusion
and ensure smooth coordination of human intelligence operations both
here and abroad. These negotiations were initiated by the CIA and the
other parties involved prior to the establishment of the DNI's office.
The DNI has an important role in ensuring the agreements are carried
out and effective, but clearly the CIA can play the role of human
intelligence manager.
The report also uses the phrase ``provide a level playing
field'' as part of the rationale for making the DNI the
National Human Intelligence Manager. This language suggests
that the CIA is but one among equals in an array of human
intelligence collection agencies. This suggestion is
inaccurate. The CIA was established as and remains our nation's
primary source for human intelligence collected overseas. The
FBI plays a critical role in domestic collection of foreign
intelligence and the Defense Department has a smaller but
important role in collecting national intelligence. The Defense
Department's primary focus, however, is on tactical human
intelligence to support military operations. All human
intelligence collectors rely on CIA tradecraft standards for
highest operational effectiveness. This is a division of labor
that can work well, but the CIA must remain in charge.
The Committee needs to monitor the implementation of the
Intelligence Reform Act and ensure the Office of the DNI has
the authority and resources needed to do the job. And the
Committee must closely review the many changes taking place
within the CIA as it rebuilds and refocuses its human
intelligence collection efforts on today's threats. But as we
undertake these oversight responsibilities we must be careful
that our actions and words support and not hinder the reform
process.
CONGRESSIONAL ACCESS TO INFORMATION
The Committee has included two provisions dealing with
different aspects of the problem of obtaining sufficient
information for the Committee to accomplish its oversight
responsibility.
The first provision, Section 107, is the result of an
amendment, offered by Senators Levin and Hagel and adopted by
the Committee, to require elements of the Intelligence
Community to provide, upon request of the Chairman or Vice
Chairman of the Senate Intelligence Committee or the Chairman
or Ranking Member of the House Intelligence Committee, timely
access to intelligence assessments, reports, estimates, legal
opinions, or other intelligence information. The requirement
would apply unless the President asserted a Constitutional
privilege related to the specific documents. This language is
similar to a provision included in the Senate-passed version of
the intelligence reform legislation last year. That provision
was removed in the conference with the House of
Representatives.
The second provision is the result of an amendment offered
by Senator Corzine to the classified annex accompanying the
bill. This classified provision, which addresses specific
compartment programs, expresses the frustration of the
Committee with the Administration practice of requesting limits
on the number of Committee staff with access to information
critical to the Committee's oversight responsibilities. The
Committee historically has respected requests to limit access
to extremely sensitive material. In some cases, however, these
requested limits are overly restrictive and can interfere with
the Committee's ability to fulfill its responsibilities and
conduct effective oversight of executive branch intelligence
programs.
This problem has become more acute because of
Administration requests to limit Committee access to certain
critical programs regarding the war on terrorism. These
programs are of obvious importance to the Committee and
individual members. Protecting national security information is
paramount and the Committee has a tradition of working
cooperatively with the executive branch in establishing access
to exceptionally sensitive material. Limitations cannot,
however, be allowed to interfere with effective oversight.
LACK OF PROGRESS ON PHASE TWO OF THE COMMITTEE'S INQUIRY INTO ISSUES
ASSOCIATED WITH PRE-WAR INTELLIGENCE ON IRAQ
On February 12, 2004, the Committee voted unanimously to
authorize an inquiry related to pre-war intelligence on Iraq.
At that time, an informal Committee inquiry had been underway
for almost eight months and the initial tasks were close to
complete. The Committee decided to finish this work, issue a
report as soon as possible, and tackle additional issues in a
second report. The first phase report was issued in July 2004.
The delay in completing phase two of the Committee's Iraq
inquiry is inexcusable.
The resolution adopted by the Committee last February
``refine[d] the terms of reference of the Committee's ongoing
inquiry into prewar intelligence with regard to Iraq'' to
include: (1) whether public statements and reports and
testimony regarding Iraq by U.S. Government officials made
between the Gulf War period and the commencement of Operation
Iraqi Freedom were substantiated by intelligence information;
(2) the post-war findings about Iraq's weapons of mass
destruction and weapons programs and links to terrorism and how
they compare with pre-war assessments; (3) pre-war intelligence
assessments about post-war Iraq; (4) any intelligence
activities relating to Iraq conducted by the Policy
Counterterrorism Evaluation Group and the Office of the Under
Secretary of Defense for Policy; and (5) the use by the
Intelligence Community of information provided by the Iraqi
National Congress. A thorough review of these matters is an
essential adjunct to the issues addressed in the Committee's
report, ``U.S. Intelligence Community's Prewar Intelligence
Assessments on Iraq,'' released in July 2004.
The Committee's press release announcing the decision to
expand the inquiry into pre-war intelligence related to Iraq,
stated that: ``[t]he resolution adopted unanimously today
illustrates the commitment of all members to a thorough review,
to learning the necessary lessons from our experience with
Iraq, and to ensuring that our armed forces and policymakers
benefit from the best and most reliable intelligence that can
be collected.''
Since the Committee identified these so-called Phase Two
issues as a high Committee priority in February of last year,
the minority has repeatedly urged completion of the review and
been assured that the Committee will fulfill this commitment.
Yet despite these repeated assertions, it is clear that only
sporadic work has been done on Phase Two since it was
authorized.There has been ample time for the Committee to
complete the Phase Two inquiry and prepare a written product for member
consideration.
The Committee adopted the terms of reference listed above
because these questions are central to understanding the events
leading to the ongoing war in Iraq. To complete this work
requires only one thing--a decision to live up to the
Committee's commitment.
The Committee's delinquency in addressing an issue that it
unanimously voted to address over a year and a half ago has
diminished the Committee's credibility as an effective overseer
of the Intelligence Community.
OVERSIGHT OF DETENTION, INTERROGATION AND RENDITION PROGRAMS
The Committee adopted three amendments offered by Vice
Chairman Rockefeller to the classified annex accompanying the
bill related to detention, interrogation and rendition issues.
One of these classified amendments, dealing with
recommendations from the CIA Inspector General, is described
briefly in unclassified language elsewhere in this report. The
other two amendments require the CIA and the President to
provide certain information to the Congress. The details of
those reporting requirements are classified. While these three
amendments will help answer some of the questions related to
these issues, they are not a substitute for the kind of
effective oversight these issues demand.
The controversy surrounding the collection of intelligence
using detention, interrogation, and rendition has been growing
since the disclosure of the abuses at the Abu Ghraib prison
early last year. Since then we have seen a steady flow of
allegations of abuse, not just in Iraq, but Afghanistan and
Guantanamo Bay as well. While there have been a number of
prosecutions and several reviews, no investigation has looked
at the full range of issues associated with how these programs
have developed, how they are being conducted, and what the long
term plans are. These issues fall squarely within our
Committee's jurisdiction.
Interrogation is a major intelligence tool in the war on
terrorism and an essential component of the intelligence
related to the insurgency in Iraq. Just as it conducts
oversight of human, signals, and imagery intelligence
collection, the Committee's obligation under S. Res. 400 ``to
provide vigilant legislative oversight over the intelligence
activities of the United States'' requires it to undertake
oversight of intelligence collection through interrogation. It
is this Committee's responsibility, not only to answer
questions related to abuse, but just as importantly to examine
the effectiveness of the methods used in interrogations and the
reliability of the information obtained from those
interrogations.
Despite repeated attempts to initiate a detailed review of
fundamental legal and operational questions surrounding the
detention, interrogation and rendition of individuals held in
U.S. custody, the Committee majority has refused to conduct
such an investigation.
One result of the Committee's failure to thoroughly review
these programs is the continued ambiguity in the underlying
legal authority creating an ongoing risk to intelligence
personnel engaged in these programs. This ambiguity has created
serious concerns about the legal and operational protection of
intelligence officers involved in detention and interrogation
operations. Rules applicable to detention, interrogation, and
rendition are the product of treaties, federal statutes,
judicial decisions, the legal opinions of the Department of
Justice and agency counsel. Unfortunately, in the realm of
Department of Justice and agency opinions, there appears to be
a body of secret law. To assess the lawfulness and efficacy of
current practices, and bring to the attention of the Executive
Branch matters requiring reassessment or correction, the
Committee should be carefully examining this body of secret
legal opinions and operational directives.
One argument put forward by those opposed to a Committee
investigation into detention and interrogation matters was the
notion that any inquiry would be perceived as an attack on the
brave men and women of the Intelligence Community performing
these duties. The opposite is in fact true. A full
investigation could aid in clarifying the legal and operational
ambiguity that currently hampers the program's effectiveness
and possibly endangers intelligence personnel. If the Committee
is serious about supporting the intelligence officers in the
field, we should be pushing the Executive Branch to resolve
this and other shortcomings in the detention and interrogation
program without further delay.
John D. Rockefeller IV.
Carl Levin.
Dianne Feinstein.
Ron Wyden.
Evan Bayh.
Barbara A. Mikulski.
Jon S. Corzine.
ADDITIONAL VIEWS OF SENATORS LEVIN AND WYDEN
From al Qai'da and terrorism to nuclear proliferation and
the spread of long range missile capabilities, the United
States faces a diversity of threats unique in our history.
Understanding the challenges posed by these threats and
responding effectively depends on us having reliable
information about the capabilities and intentions of our
adversaries. A focused, effective intelligence community is
essential in this regard. Strong Congressional oversight is
critical to ensuring that our intelligence agencies are up to
the job.
In the preface to its report, the 9-11 Commission stated
that ``Congress needs dramatic change . . . to strengthen
oversight and focus accountability.'' In the 108th Congress, we
took some important steps toward that goal in passing both the
Intelligence Reform and Terrorism Prevention Act (IRTPA) and a
resolution creating the Homeland Security and Governmental
Affairs Committee and clarifying certain committee oversight
authorities. However, additional reforms are needed.
Effective oversight also depends on Congress having timely
access to intelligence information. That sentiment is reflected
in S. Res. 400, the resolution that established the Standing
Committee of the Senate on Intelligence in the 94th Congress.
Section 11(b) of the resolution states that it is the ``sense
of the Senate that the head of any department or agency of the
United States involved in any intelligence activities should
furnish any information or document in the possession, custody,
or control of the department or agency, or person paid by such
department or agency, whenever requested by the select
committee with respect to any matter within such committee's
jurisdiction.'' However, despite the clear message of S. Res.
400, too often members of Congress, even those of us who are
members of committees of jurisdiction, do not have timely
access to the intelligence information necessary to do our
jobs.
IRTPA was helpful in clarifying Congress's right to
intelligence information. Prior to its passage, Section 103 of
the National Security Act (50 U.S.C. 403-3) stated that the
Director of Central Intelligence ``shall be responsible for
providing national intelligence . . . where appropriate to the
Senate and House of Representatives and the committees
thereof.'' (Emphasis added). IRTPA not only shifted that
responsibility to the new Director of National Intelligence,
but removed the phrase ``where appropriate,'' thus clarifying
that Congress had the same right to national intelligence as
elements of the executive branch (IRTPA Section 102A(a)(1)(D)).
Unfortunately, in some cases, that right has yet to become a
reality.
This problem is not unique to any particular
administration. Indeed, it reflects longstanding tension
between the executive and legislative branches over their
respective roles in national security affairs. However, when
those tensions manifest themselves in the withholding of
relevant intelligence information from the Congress, they can
have disastrous consequences.
To offer just one example, forty years ago, Secretary of
Defense McNamara invoked classified communications intercepts
to support passage of the Gulf of Tonkin Resolution, which was
used by President Johnson as the legislative foundation for
expanding the war against Vietnam. According to John Prados, an
analyst at the National Security Archive, Secretary McNamara
used the intercepts as a ``trump card during the 1964 hearings
to silence doubters.'' The intercepts later proved dubious. We
won't speculate as to whether Congress's consideration of the
Gulf of Tonkin resolution would have been different if the
Johnson administration had given Congress all the relevant
intelligence, but the example illustrates why Congressional
access to intelligence information is so critical.
During the Senate Intelligence Committee's consideration of
fiscal year 2006 Intelligence Authorization legislation, the
Committee adopted an amendment Senator Levin offered with
Senator Hagel that is consistent with the changes made by IRTPA
and reflects the sentiment of S. Res. 400. A similar provision
was included in the version of IRTPA that passed the Senate 96-
2 in the 108th Congress, but that provision was removed in
conference committee.
The amendment adopted by the Intelligence Committee
requires elements of the intelligence community to provide,
upon request from Congressional Committees of jurisdiction or
the Chairman or Vice Chairman of the Senate Intelligence
Committee or Chairman or Ranking Member of the House
Intelligence Committee, timely access to intelligence
assessments, reports, estimates, legal opinions, or other
intelligence information.
The Senate Intelligence Committee has a longstanding
nonpartisan tradition. The Committee has a Chairman and Vice
Chairman, rather than a Chairman and Ranking Member. And, in
the Chairman's absence, the Vice Chairman, rather than the next
most senior majority party member of the Committee, acts in his
place. Requiring intelligence community elements to respond to
requests from either the Chairman or Vice Chairman of the
Senate Intelligence Committee, as does the amendment, is in
keeping with that tradition.
The amendment's requirement that the intelligence community
respond to Congressional requests for information is intended
to apply only to existing documents and other intelligence
information. The amendment does not create new authority for
the Congress to task the intelligence community to generate new
intelligence assessments, reports, estimates, legal opinions,
or other intelligence information.
Under the Levin-Hagel amendment, elements of the
intelligence community are required to respond to requests for
intelligence information unless the President certifies that
the documents or information is not being provided because the
President is asserting a privilege pursuant to the
Constitution.
The Constitution entrusts Congress with important
responsibilities in the area of national security. It is the
responsibility of Senators to seek information so that we may
make informed decisions. The Levin-Hagel amendment will improve
Congress's ability to carry out that responsibility.
During the Committee's consideration of the fiscal year
2006 Intelligence Authorization bill, Senator Levin also
offered an amendment to Section 307 of the bill. Section 307
would add an exception to the Privacy Act, permitting the
sharing of Privacy Act records between elements of the
intelligence community (IC), their parent agencies and other
federal agencies, under certain conditions.
Privacy Act records contain sensitive information about
American citizens. Veterans' health records at the Veterans
Administration, case files compiled by the Equal Employment
Opportunity Commission during the investigation of
discrimination complaints, and certain mental health records
maintained by the Department of Health and Human Services, are
all protected under the Privacy Act. While it's clear that the
IC must improve information sharing, changes to the Privacy Act
ought to be carefully considered. With that in mind, we were
disappointed that the Committee did not hold any hearings on
the changes proposed by Section 307 and Committee members were
not afforded the perspective of Privacy Act experts within or
outside the government on the proposed changes.
As drafted, Section 307 would arguably not permit the CIA
to access Privacy Act records from the Department of Housing
and Urban Development (HUD), as HUD does not contain an IC
element and, to our knowledge, does not have responsibility for
protecting the country against the threat of international
terrorism or weapons of mass destruction (WMD). By contrast,
simply because it shares a parent agency with the Federal
Bureau of Investigation (FBI), an IC element, the bill would
permit the CIA to access Privacy Act records from the
Department of Justice's Civil Rights Division as long as the
records related to a lawful and authorized foreign intelligence
or counterintelligence activity of the CIA. This is despite the
fact that the DOJ Civil Rights Division, like HUD, does not
have the responsibility to protect against the threat of
international terrorism or WMD.
It seems unwise to permit sensitive records of American
citizens held by DOJ's Civil Rights Division to be disseminated
under the terms described in the bill. In addition, the bill's
inconsistent treatment of Privacy Act records held by DOJ's
Civil Rights Division and similarly situated non-IC entities
and those held by HUD and other agencies that do not contain an
IC element is illogical. The Levin amendment would have
corrected that inconsistent treatment and provided stronger
Privacy Act protections than those in the bill by treating
DOJ's Civil Rights Division like HUD rather than the FBI.
As discussed above, when certain conditions are met, the
Committee reported bill authorizes any IC element to seek
Privacy Act records directly from certain non-IC elements. The
bill also permits non-IC agencies to initiate sharing of
Privacy Act records if the head of the non-IC agency determines
that the record constitutes either terrorism information as
defined in Section 1016(a)(4) of the National Security
Intelligence Reform Act of 2004 or information concerning the
proliferation of WMD, and the disclosure is to an appropriate
IC element.
Under Executive Order 12333, the Federal Bureau of
Investigation is the primary agency responsible for the
collection of foreign intelligence in the United States. The
Attorney General has established guidelines as to how those
responsibilities are carried out. Consistent with the Bureau's
existing responsibilities, the Levin amendment would have
required the FBI to coordinate requests from IC elements to
non-IC agencies for Privacy Act records and would have
designated the FBI as the recipient of Privacy Act records
shared by non-IC agencies. The Levin amendment was a modest
attempt to improve privacy protections for American citizens
and we will continue to pursue such improvements.
Section 307 also directs the Privacy and Civil Liberties
Oversight Board to review implementation of the provision.
While this may be an appropriate activity for the Board, it
should be noted that nearly a year after its statutory
creation, the Board has yet to be constituted. In fact, while
the President has publicly announced which individuals he
intends to appoint to the Board, he has not yet submitted their
names to the Senate for confirmation. Ideally, the Committee
would have had the benefit of the Board's input prior to
considering legislation that directly affects privacy rights.
But at a minimum, it would make sense that the Board be
constituted before passage of legislation which it has been
explicitly directed to monitor and report on.
Finally, we have concerns with Section 431 of the bill.
That section would permit certain Department of Defense (DoD)
intelligence personnel to meet with and conceal their
governmental affiliation from, United States citizens within or
outside the United States for the purpose of determining the
citizens' access to foreign intelligence information and their
suitability as a source. Current law permits DoD intelligence
personnel to make one such contact overseas. The legislation
reported by the Committee would permit an unlimited number of
contacts and would allow them to be made either in the United
States or overseas. We believe that DoD intelligence personnel
should be required to tell United States citizens in the United
States who are not suspected of any wrongdoing that they work
for the government. We intend to support changes to this
authority as the legislation moves forward.
Carl Levin.
Ron Wyden.
ADDITIONAL VIEWS OF SENATORS WYDEN AND CORZINE
On June 21, 2005, the Office of the Director of National
Intelligence (ODNI) formally transmitted to the congressional
intelligence committees the Administration's proposed
Intelligence Authorization Act for Fiscal Year 2006. The ODNI
also provided to the committees a detailed section-by-section
explanation of the provisions in the proposed bill.
As in the past, this part of the Intelligence Community's
annual request for legislative authorities is unclassified, in
contrast to the Administration's annual request for budgetary
authority, which is contained in a classified document. The
proposed bill consists of suggested amendments or additions to
public law. As an unclassified document that contains
recommendations on the enactment of new or modified provisions
of public law, there is no reason to treat the document as a
secret one.
Next year, the Committee should begin a new practice. The
Administration's unclassified request for legislative
authorities should be treated as a public document. In that
way, other committees and the public will have the opportunity
to know what legislative proposals have been placed before the
Committee and be able to submit comments to it. The Committee
should also proceed as openly as is consistent with national
security to consider the Administration's proposals as well as
proposals for the enactment of legislative authorities that
originate within the Committee.
As other committees, the Committee must meet in closed
session when the matters to be discussed will include sensitive
national security information. But much of the Committee's
discussion of legislative matters concerns issues of policy
that should be discussed in open session. And the Committee
should hold public hearings on legislative proposals that have
a public consequence, such as proposals concerning
investigative authorities or the application of the Freedom of
Information Act or Privacy Act to the Intelligence Community.
In addition to the public's legitimate interest in knowing
about proposals that have an impact on it, the Committee would
benefit from the insights and information of those whose
experiences and expertise may inform the Committee's debate.
Ron Wyden.
Jon S. Corzine.
