[Senate Report 105-185]
[From the U.S. Government Printing Office]
105th Congress Report
SENATE
2d Session 105-185
_______________________________________________________________________
AUTHORIZING APPROPRIATIONS FOR FISCAL YEAR 1999 FOR THE INTELLIGENCE
ACTIVITIES OF THE UNITED STATES GOVERNMENT AND THE CENTRAL INTELLIGENCE
AGENCY RETIREMENT AND DISABILITY SYSTEM AND FOR OTHER PURPOSES
_______
May 7, 1998.--Ordered to be printed
_______________________________________________________________________
Mr. Shelby, from the Select Committee on Intelligence, submitted the
following
R E P O R T
[To accompany S. 2052]
The Select Committee on Intelligence, having considered the
original bill (S. 2052), which authorizes appropriations for
fiscal year 1999 for intelligence-related activities and
programs of the United States Government, the Community
Management Account, and the Central Intelligence Agency
Retirement and Disability System, and which accomplishes other
purposes, reports favorably thereon and recommends that the
bill pass.
purpose of the bill
This bill will:
(1) Authorize appropriations for fiscal year 1999 for
(a) the intelligence activities and programs of the
United States Government; (b) the Central Intelligence
Agency Retirement and Disability System; and (c) the
Community Management Account of the Director of Central
Intelligence;
(2) Authorize the personnel ceilings as of September
30, 1999, for intelligence activities of the United
States Government and for the Community Management
Account of the Director of Central Intelligence;
(3) Authorize the Director of Central Intelligence,
with Office of Management and Budget approval, to
exceed the personnel ceilings by up to two percent;
(4) Extend for one additional year the President's
authority to delay the imposition of proliferation-
related sanctions when necessary to protect an
intelligence source or method or an on-going criminal
investigation;
(5) Extend for two additional years the Secretary of
Defense's authority to engage in commercial activities
as security for intelligence collection activities;
(6) Amend the National Security Education Act of 1991
to include the study of counter-proliferation within
the scope of the Act;
(7) Extend for two additional years the Director of
Central Intelligence's authority under the Central
Intelligence Agency Voluntary Separation Pay Act of
1993 to offer separation pay to employees;
(8) Authorize the Director of Central Intelligence to
designate personnel to carry firearms to protect
current and former Agency personnel and their immediate
families;
(9) Authorize the Central Intelligence Agency's
Inspector General to review and comment in the
Inspector General's semiannual reports on existing and
proposed legislation relating to programs and
operations of the Agency;
(10) Authorize the Attorney General or a designated
attorney for the Government to apply for a court order
authorizing the installation and use of a pen register
or trap and trace device for an investigation to gather
foreign intelligence information or information
concerning international terrorism;
(11) Authorize the Director of the Federal Bureau of
Investigation or a designee to apply for a court order
to require common carriers, public accommodation
facilities, or vehicle rental facilities to release
certain records in their possession relating to a
foreign intelligence or international terrorism
investigation; and
(12) Ensure that employees within the Intelligence
Community are made aware that they may, without prior
authorization, disclose certain information to
Congress, including classified information, that they
reasonably believe is specific and direct evidence of--
a violation of law, rule or regulation; a false
statement to Congress on an issue of material fact; or
gross mismanagement, a gross waste of funds, a flagrant
abuse of authority, or a substantial and specific
danger to public health or safety.
classified supplement to the COMMITTEE REPORT
The classified nature of United States intelligence
activities prevents the Committee from disclosing the details
of its budgetary recommendations in this Report.
The Committee has prepared a classified supplement to this
Report, which contains (a) the classified annex to this Report
and (b) the classified schedule of authorizations which 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 action as
set forth in the classified schedule of authorizations. The
classified annex has the same status as any Senate Report, and
the Committee fully expects the Intelligence Community to
comply with the limitations, guidelines, directions, and
recommendations contained therein.
The classified supplement to the Committee Report is
available for review by any Member of the Senate, subject to
the provisions of Senate Resolution 400 of the 94th Congress.
The classified supplement is made available to the
Committees on Appropriations of the Senate and the House of
Representatives and to the President. The President shall
provide for appropriate distribution within the Executive
Branch.
scope of committee review
The Committee conducted a detailed review of the fiscal
year 1999 budget requests for the National Foreign Intelligence
Program (NFIP) of the Director of Central Intelligence; the
Joint Military Intelligence Program (JMIP) of the Deputy
Secretary of Defense; and the Tactical Intelligence and Related
Activities (TIARA) of the military services. The Committee's
review entailed a series of briefings and hearings with senior
intelligence officials, numerous staff briefings, review of
budget justification materials, and numerous written responses
provided by the Intelligence Community to specific questions
posed by the Committee. The Committee also monitors compliance
with numerous reporting requirements contained in statute. Each
report is scrutinized by the Committee and appropriate action
is taken when necessary.
In accordance with a Memorandum of Agreement with the
Senate Armed Services Committee (SASC), the Committee is
including its recommendations on both JMIP and TIARA in its
public report and classified annex. The Senate Select Committee
on Intelligence (SSCI) has agreed that JMIP and TIARA issues
will continue to be authorized in the defense authorization
bill. The SASC has also agreed to involve the SSCI staff in
staff-level defense authorization conference meetings and to
provide the Chairman and Vice Chairman of the SSCI the
opportunity to consult with the SASC Chairman and Ranking
Member before a JMIP or TIARA issue is finally closed out in
conference in a manner with which they disagree. The Committee
looks forward to continuing its productive relationship with
the SASC on all issues of mutual concern.
In addition to its annual review of the Administration's
budget request, the Committee performs continuing oversight of
various intelligence activities and programs. The Committee has
a dedicated audit staff that conducts indepth audits and
reviews of specific programs and activities identified by the
Committee as needing a thorough and concentrated scrutiny. For
example, the Committee audit staff recently concluded
examinations of the use of cover by the Central Intelligence
Agency and the administration of the Foreign Intelligence
Surveillance Act of 1978. These inquiries frequently lead to
Committee action with respect to the authorities, applicable
laws, and budget of the activity or program concerned.
The Committee also established a Technical Advisory Group
(TAG) in 1997. The TAG is an independent panel of twenty-two
experts drawn from the private sector. Each member of the TAG
was selected by the Committee for their extensive expertise in
a particular discipline. The purpose of the TAG is to provide
the Committee an objective and comprehensive evaluation of
various intelligence programs and activities. Many of the TAG
members have never worked within the Intelligence Community and
therefore being a fresh and independent perspective to
intelligence programs and activities. The results of these
examinations and the TAG will be discussed later in its report.
committee recommendations
The vast majority of the Committee's specific
recommendations relating to the Administration's budget request
for intelligence and intelligence-related activities are
classified and are contained in the classified schedule of
authorizations and the classified annex. The Committee is
committed, however, to making its concerns and priorities for
intelligence programs and activities public to the greatest
extent possible consistent with the nation's security.
Therefore, the Committee has included in this report
information that is unclassified and available to the public.
national foreign intelligence program
Areas of committee emphasis
The Committee has continued its bipartisan efforts to
``right-size'' and ``re-tool'' U.S. Intelligence Community
programs and activities to reflect the new, post-Cold War era
threats and challenges to U.S. national security.
Specifically, the Committee recommends important new
investments and initiatives in high-priority areas. These
include: aggressive efforts in what the committee chairman has
called the ``five C's'' (counter-proliferation, counter-
narcotics, counter-terrorism, counter-intelligence, and covert
action); bolstering advanced research and development across
the Intelligence Community to maintain the U.S. technological
edge; improving the skills and tools of clandestine service
personnel; developing new and innovative approaches to
understanding ``hardtarget'' countries; building up
capabilities in the area of measurments and signatures intelligence;
and enhancing analytical capabilities as well as tools for conducting
information operations.
The Commission recommends significant funding increases in
each of the priority areas listed above. At the same time,
however, the Committee recommends reductions in programs and
activities that are lower-priority or poorly justified,
redundant, or that cannot be executed. Details of the
Committee's recommendations are included in the Classified
Annex accompanying this report.
Department of Defense Foreign Counterintelligence Program (DoD FCIP)
The Committee notes the precipitous decrease in personnel
and funding requested for the DoD FCIP since fiscal year 1993.
The resources dedicated to the military's counterintelligence
mission have decreased by nearly one half in five years. This
significant decline, however, has been accompanied by a marked
increase in operational tempo and increased emphasis on force
protection which draws heavily on counterintelligence
resources.
As Congress strives to achieve and maintain a balanced
budget, the Committee recognizes the need to reduce spending in
many areas. The Committee is concerned, however, that certain
programs and activities within the DoD FCIP have been cut
without a realistic evaluation of the impact on the
Department's counterintelligence mission. It appears to the
Committee that the concept of doing more with less has led to
declining morale, lack of training, and attrition of personnel
with a corresponding loss of expertise. Further, the decreases
in FCIP funding belie the growing dependence by commanders in
the field on information collected by counterintelligence
personnel. A 1996 Director of Central Intelligence study
estimated that nearly 70% of the information used by combatant
commanders for force protection comes from counterintelligence
and HUMINT personnel. If this is indeed the case, the Committee
would expect the counterintelligence mission to be targeted for
funding increases to strengthen our collection capabilities and
enhance our analytical capability in the field.
Therefore, the Secretary of Defense shall submit, by March
15, 1999, a report to the Congressional Intelligence Committee
comparing the decrease in DoD FCIP, service TIARA, and Security
and Intelligence Activities funding over the last five years
with the operational demands placed on the Department's
counterintelligence forces. The comparison shall address the
average deployment schedule of counterintelligence personnel
for each of the past five years. The report shall also explain
the analytical methodology used by the Department to conduct
mission impact analysis before it mandates cuts to the
counterintelligence force structure. If such an analysis is
conducted, the report shall include the Department's mission
impact conclusions for the past five years. If no impact
analysis is conducted, the report shall explain why no such
analysis is conducted. The report shall also determine the
optimum counterintelligence force structure considering
intelligence requirements, operational tempo, and increased
emphasis on force protection over the last five years.
Federal Bureau of Investigation foreign counterintelligence
The Committee's audit staff recently completed a
comprehensive review of the implementation and administration
of the Foreign Intelligence Surveillance Act of 1978. During
the course of this examination, the audit staff encountered
many instances where the FBI has failed to address
technological challenges that may, in time, degrade the
Bureau's ability to collected critical counterintelligence and
counter-terrorism information. Further, the audit revealed a
Bureau-wide deficiency in information systems modernization and
implementation. The dearth and diversity of information systems
technology throughout the National Security Division, in
particular, suggests that the Bureau has yet to develop a
unified and comprehensive plan to address this challenge. The
Committee believe that the Bureau either has neglected an
opportunity to maximize the efficiencies available through
automation, or lack the requisite resources, expertise and
vision to develop, install, and operate Bureau-wide systems.
The Committee understands that a Strategic Management Task
Force within the Bureau is conducting a comprehensive review of
the use of collection and information systems technology
throughout the FBI. While this effort is long overdue, the
Committee is encouraged by this initiative. The Committee urges
the Director to share the findings and recommendations of this
review with the Congressional Intelligence Committees. The
Committee is concerned that the ability to conduct electronic
surveillance may fall prey to the advance of technology if the
Bureau does not keep pace with new software and hardware
developments. Additionally, the Committee wishes to emphasize
the need for systems that link elements within the National
Security Division so that counterintelligence and counter-
terrorism information may be disseminated, shared, and accessed
simultaneously by agents, language specialists, and analysts.
National Drug Intelligence Center
As the Managers indicated in the Conference Report
accompanying S. 858, the Intelligence Authorization Act for
Fiscal Year 1998, the continued funding of the National Drug
Intelligence Center (NDIC) from the National Foreign
Intelligence Program deserves study. The Committee is prepared
to support and provide additional resources for meritorious
initiatives generated by the NDIC to the extent that the NDIC
is truly an element of the Intelligence Community. The
Committee cannot evaluate such initiatives, however, until it
receives the report mandated in last year's Act. Congress urged
the President to carefully examine the operations of the NDIC
and report to the Congressional Intelligence Committees before
April 1, 1998. Additionally, the managers directed that this
examination should be undertaken and reported as a part of the
National Counter-Narcotics Architecture Review being prepared
by the Office of National Drug Control Policy (ONDCP). To date,
no report has been received.
Despite numerous attempts to obtain this information from
the ONDCP, no information has been made available to support
accurate and responsible budgeting of NDIC activities. The
mandated report required detailed information on current and
proposed efforts to structure the NDIC to effectively
coordinate and consolidate strategic drug intelligence from
national security and law enforcement agencies. It also
required a detailed description of those steps that have been
taken to ensure that the relevant national security and law
enforcement agencies are providing the NDIC with access to data
needed to accomplish this task.
The Manager's also agreed that upon receipt of this report,
the Committees would reconsider whether it is appropriate to
continue funding the NDIC as a part of the National Foreign
Intelligence Program.
Therefore, because the report has not yet been received,
the transfer of funds described in Section 104(e)(2), shall not
be undertaken until 30 days after the Congressional
Intelligence Committees are in receipt of the report mandated
in the Intelligence Authorization Act for Fiscal Year 1998.
Money laundering activity by foreign narcotics traffickers
The Committee is concerned by the number and magnitude of
illicit financial transactions that take place within American
financial systems initiated by foreign narcotics trafficking
organizations. The Committee has received several briefings and
reports from various government agencies, conducted hearings on
this and related issues, and understands that the magnitude of
the problem may exceed several hundred billion dollars
annually.
The Committee has concluded that there is not enough
emphasis being placed on combating this serious problem.
Accordingly, the Committee has augmented the resources of the
DCI's Crime and Narcotics Center to begin to address this
shortfall. It is also the Committee's intention to investigate
this area further and consider, when appropriate, legislative
initiatives.
Central Services Program Working Capital Fund (CSPWCF)
The Committee strongly supports the Central Intelligence
Agency's Directorate of Administration (DA) as it continues to
make steady progress in its initiative--begun in fiscal year
1998--to put administrative service providers on a business-
like footing through use of the CSPWCF. The Logistics Operation
Center (LOC) was the first business area shifted into the CSP.
The budget request did not include funds for CSPWCF because
the DA continues to refine estimates of the funds required to
shift six additional business areas--transportation services,
facilities management and maintenance, foreign field
communications, applications development, training, and
telephone services--into CSPWCF in fiscal year 1999. By the end
of fiscal year 1998, however, the DA will be able to determine
the exact amount of funds needed for the CSPWCF in fiscal year
1999 and will address funding as a fiscal year 1999 issue. Once
those estimates are known, the Committee urges the Director of
Central Intelligence to adequately fund any CSPWCF needs.
Commercial imagery
Since 1993, the Committee has advocated the acquisition and
use of commercial imagery where practicable. The Committee has
urged the Department of Defense and the Intelligence Community
to more aggressively pursue the use of commercial imagery.
Through numerous briefings with the National Imagery and
Mapping Agency, the National Reconnaissance Office, and
industry representatives, the Committee is convinced that
commercial imagery can satisfy a significant quantity of U.S.
medium resolution imagery requirements. Current private sector
launch plans will provide possibly up to six U.S.-owned
satellites that can provide imagery with resolution of one
meter prior to the launch of the first satellite in a follow-
on, government operated satellite imagery constellation.
Unfortunately, NIMA has yet to solicit private sector proposals
for acquisition of medium resolution imagery, nor has NIMA
evaluated the potential purchase of a commercial satellite to
meet future U.S. needs for medium resolution imagery.
In an effort to implement increased use of domestic
commercial imagery, the Committee recommends that the Senate
Armed Services Committee adopt a ``buy America'' legislative
provision related to acquisition of commercial imagery and
further recommends an additional $10.0 million authorization
for appropriations for purchase of commercial imagery.
Imagery archiving
The Committee is concerned that the Intelligence Community
and Defense have not adequately addressed the preservation of
space and airborne reconnaissance imagery. While much of the
current value of the investment in imagery reflects national
defense requirements, the future value cannot adequately be
estimated. The Committee recognizes that the life expectancy of
archived imagery is dependent on the media on which it is
stored and that some types of media may not survive for long-
term use. Therefore the Committee directs the Director of
Central Intelligence and Deputy Secretary of Defense to conduct
a review of archiving and preservation practices for imagery
collected from space and airborne platforms, and deliver to the
Committee, not later than March 15, 1999, a report on current
and future plans to maintain those archives indefinitely at the
lowest cost. The report should also address the architecture
for accessing the imagery digitally in a geospatial reference
frame. If the study projects a reduction in imagery holdings,
the rationale for such reduction shall be explained. Finally,
the Committee directs the Director, National Imagery and
Mapping Agency, to investigate new data storage technologies to
determine whether their application will decreasearchival costs
by allowing, among other things, higher density storage, longer term
storage between restorations, or less stringent storage-environment
requirements, while maintaining data quality.
Intelligence dissemination architecture
The Committee notes the progress being made by the
Department of Defense in developing a coherent, near-real time
intelligence data dissemination architecture. Plans being
developed for the Integrated Broadcast System (IBS) will serve
as a focal point for continued progress in this regard. The
Navy, as Executive Agent for IBS, is to be commended for moving
quickly to get the initial broadcast service platform in space.
There remains, however, an area of some concern with respect to
the overall dissemination architecture relating to the specific
bandwidths being acquired within the National Foreign
Intelligence Program to support specific broadcast needs that
do not seem to have any validated linkage to the IBS program.
The Committee is aware that the Tactical Related
Applications (TRAP) Data Dissemination system (TDDS) will
provide multiple channels for rapid broadcast of critical
intelligence information in support of tactical operations. The
distribution center for TDDS is called Upgraded Dissemination
Ground Segment (UDGS) and will become operational in fiscal
year 1999. This is a very capable system with capacity that is
global in scope and flexible in format. This bandwidth must be
factored into the IBS architecture and managed as part of that
architecture.
Therefore the Committee directs that the Assistant
Secretary of Defense for Command, Control, Communications, and
Intelligence, with the Executive Agent for IBS and the
Acquisition Agent for IBS, prepare a study that shows the
integration of broadcast systems into the IBS program. This
study should validate the location of the UDGS as optimum for
the IBS program and give detailed descriptions of the various
intelligence source inputs, as well as the information
management scheme that will be implemented to ensure the
military customer is getting the necessary information in a
usable format. Specifically, the Committee seeks to ensure that
the adjudication and deconfliction authorities are adequate to
maintain broadcast discipline and ensure that the customer
identifies and receives critical intelligence information, as
defined by the customer, in a timely manner.
The Committee does not believe that a robust architecture
implies a single dissemination system. The Committee is
concerned that broadcast services are being buried within
intelligence ``stovepipes'', when they could better serve the
same customers in a more efficient and effective manner if they
were brought under centralized control within the Department of
Defense. This issue has languished in the Department for
several years and acquisition decisions have been effected that
are not consistent with a ``system of systems'' approach. The
report directed above shall be due not later than March 15,
1999.
NSA declassification
The National Security Agency has several declassification
programs, which are split among many offices, and funding for
which is buried in the budget submissions of those offices. NSA
was unable to provide the Committee with the total amount
requested for all declassification programs in fiscal year
1999. In addition, with respect to the only declassification
program specifically identified in the Congressional Budget
Justification Book, NSA was unable to explain how those
resources would be allocated. It is impossible for the
Committee to determine the scale of the declassification
effort, the effectiveness of declassification tools, and how
well NSA is meeting declassification requirements. To enhance
oversight, the Committee directs the Director of NSA to
consolidate all declassification programs into a single budget
submission beginning in fiscal year 2000, to include a
breakdown of how the resources will be allocated.
joint military intelligence program
Joint SIGINT Avionics Family
The objective of Joint SIGINT Avionics (JSAF) is the
creation of functional commonality and interoperability among
all U.S. airborne reconnaissance platforms, regardless of
service or airframe type. Commonality and interoperability are
accomplished through an open architecture, common sensor
payload, and software reconfigurable processors. The
development is being accomplished through a series of
technology modules that can be incrementally integrated into
existing systems and platforms.
The JSAF is designed to adapt to rapidly changing future
threat capabilities through software exploitation rather than
by more costly hardware alterations and upgrades. The program
is divided into a low band subsystem (LBSS) and a high band
subsystem (HBSS). The system design relies on commercial off-
the-shelf software and hardware to increase affordability.
Initial system implementation is planned for completion in
fiscal year 2007.
Currently, there are four platforms scheduled to receive
either the LBSS, the HBSS, or both. The Air force plans to
install JSAF on two platforms, the RC-135 Rivet Joint and the
Air Force special platform. There are 16 of each of the two
platforms in the Air Force. The navy plans to install JSAF on
its EP-3E aircraft. The Navy maintains 12 EP-3E platforms. The
Army plans to install JSAF on nine Airborne Reconnaissance Low
(ARL) aircraft for a total of 53 manned platforms. Under the
present plan, the Air Force special platform will be the only
aircraft equipped with the LBSS and the HBSS.
The LBSS/HBSS production schedule (including development
units) is as follows:
----------------------------------------------------------------------------------------------------------------
Fiscal years--
-------------------------------------------------------
2000 2001 2002 2003 2004 2005 2006 2007
----------------------------------------------------------------------------------------------------------------
LBSS.................................................... \1\ 3 9 10 10 9 7 4 1
HBSS.................................................... \1\ 1 3 3 3 3 3 1 .....
----------------------------------------------------------------------------------------------------------------
\1\ Developmental units.
In an effort to expedite delivery of this capability, the
Committee reviewed as accelerated production effort that would
not increase program risk. The Committee found that the
delivery schedule could be accelerated by up to three years in
the case of the Air Force special platform, and two years with
other platforms, by requiring that platforms be equipped with
JSAF components at their next depot maintenance (PDM).
Under the current plan, both low and high band subsystems
begin delivery to the services in fiscal year 2001 and conclude
delivery in fiscal year 2007. During this period, some aircraft
will go through a PDM cycle and not have the new component
installed even though the components could be readily
available. Maintaining these older systems when they could be
replaced will increase support costs. An accelerated delivery
schedule consistent with platform PDM schedules would be as
follows:
------------------------------------------------------------------------
Fiscal years--
-----------------------------------------
2000 2001 2002 2003 2004 2005
------------------------------------------------------------------------
LBSS.......................... \1\ 3 10 14 14 7 5
HBSS.......................... \1\ 1 4 ..... 6 ..... 6
------------------------------------------------------------------------
\1\ Developmental units.
The accelerated schedule does not increase risk and has no
budgetary impact in fiscal year 1999. It requires that funding
be accelerated in fiscal years 2000 through 2003 over current
plans. The accelerated schedule not only delivers capability
faster, but also saves $44 million in initial JSAF costs over
the current acquisition plan. The alternative funding profile
would be as follows:
[In millions of dollars]
----------------------------------------------------------------------------------------------------------------
Fiscal years--
Prior --------------------------------------------- TC Total
yrs. 2000 2001 2002 2003 2004
----------------------------------------------------------------------------------------------------------------
Baseline............................... 34.6 24.1 192.0 173.5 164.1 105.4 152.4 846.1
Acclerated............................. 34.6 29.7 212.1 238.4 218.5 42.9 25.9 802.1
------------------------------------------------------------------------
Delta.................................. 0 +5.6 +20.1 +64.9 +54.4 -62.5 -126.5 -44.0
----------------------------------------------------------------------------------------------------------------
The Committee recommends the adoption of language directing
the Department of Defense to adopt an accelerated JSAF
acquisition strategy consistent with the earliest platform
availability for PDM schedules.
Defense Airborne Reconnaissance Program integration & support
The budget request included $17.04 million, an increase of
more than 100 percent over fiscal year 1998, for program
integration and support. The budget justification materials did
not demonstrate a convincing requirement for such a dramatic
increase. One of the stated justifications for these funds is
development of transfer plans of Unmanned Aerial Vehicle (UAV)
capabilities to the services. Given the serious delays in both
the High Altitude Endurance UAV and Tactical UAV programs,
coupled with the Air Force's negative experience with the
Predator program and the fact that the Air Force has conducted
detailed planning for assumption of responsibility for the High
Altitude Endurance UAV program, the Committee finds the
administration's rationale redundant.
Therefore, the Committee recommends a reduction of $8.0
million for Defense Airborne Reconnaissance Program Integration
and Support for fiscal year 1999.
Common ground segment
The Committee remains concerned about the delays in the
High Altitude Endurance Unmanned Aerial Vehicle (HAE UAV)
Advanced Concept Technology Demonstration (ACTD), especially
with regard to the Dark Star UAV, which continues to fall
further behind schedule. Information provided to the Committee
casts serious doubt on the viability of the Dark Star portion
of the ACTD.
Because of repeated schedule delays and program problems
the Committee believes that the administration request for
fiscal year 1999 for the Common Ground Segment cannot be
executed in an efficient manner. Therefore, the Committee
recommends a reduction of $8.0 million in Common Ground Segment
for fiscal year 1999.
Dark Star
Dark Star is the Low Observation air vehicle component in
the HAE UAV Advanced Concept Technology Demonstration (ACTD)
currently managed by the Defense Advanced Research Projects
Agency (DARPA). The Dark Star program remains plagued by
program delays and is substantially behind the projected
schedule. The Congress has appropriated more than $100.0
million for fiscal years 1997 and 1998 combined, and the
administration has requested $40.5 million for fiscal year
1999.
The Committee believes that the unexpended prior year funds
and a reduced fiscal year 1999 authorization for appropriations
will be sufficient to sustain the Dark Star ACTD through the
upcoming fiscal year. Therefore, the Committee recommends a
reduction of $10.0 million for Dark Star in fiscal year 1999.
Interferometric synthetic aperture radar
Forward deployed U.S. armed forces have a need for up-to-
date and highly accurate maps that provide three-dimensional
location of targets, including altitude, latitude and
longitude, and for reconstruction of terrain in a three-
dimensional setting for planning combat missions. Airborne
interferometric synthetic aperture radar (IFSAR) has the
potential to provide such maps with an accuracy and timeliness
that meets the demanding digital terrain elevation data (DTED)
Level 5 specifications. Such performance would meet all
validated Army and Air Force requirements for battlefield
visualization and precision strike. A demonstration IFSAR at
somewhat lower performance parameters flew successfully on a
commercial jet in support of U.S. forces in Bosnia. The
Committee believes that this capability can now be transferred
to an operational military platform.
Therefore, the Committee recommends an addition of $4.0
million within the Advanced Topographic Mapping System (ATOMS)
program for fiscal year 1999 to expedite development of a DTED
Level 5 IFSAR for installation on the Army's Airborne
Reconnaissance Low (ARL) platform.
improving intelligence community management and operation
The biological and chemical weapons threat
In March and April 1998, the Committee held a series of
joint hearings with the Judiciary Subcommittee on Technology,
Terrorism & Government Information to receive both open and
classified testimony on the subject of the biological and
chemical threats to the United States by states and non-state
actors such as terrorists, and on the United States
government's strategy and capabilities to prevent or respond to
such an attack. Witnesses included the Attorney General, the
Director of the FBI, senior intelligence community officials,
medical experts from the U.S. Army and the Centers for Disease
Control, and expert private witnesses. In addition, Committee
staff met with and debriefed a defector who until 1992 served
as a senior scientist in the Soviet/Russian offensive
biological weapons program.
In the wake of the 1993 World Trade Center bombing, the
1995 Aum Shinrikyo attack in the Tokyo subway, and most
recently, the arrests in Las Vegas of persons suspected of
possessing deadly anthrax agent, the Committee has been
concerned by the proliferation of biological and chemical
weapons and the growing prospect of a terrorist attack against
the United States using biological or chemical agents. The
Committee has initiated or supported a number of programs to
enhance the Intelligence Community's capabilities to monitor
this threat, including new legislative authorities in the
Intelligence Authorization Act of Fiscal Year 1999 to collect
certain kinds of critical preliminary information of relevance
to FBI investigations into international terrorism, and to
provide policymakers with the information and tools needed to
support U.S. counter-proliferation and counter-terrorism
policies. The Classified Annex to the Intelligence
Authorization Act for Fiscal Year 1999 continues the
Committee's efforts in this regard.
The threat of biological or chemical attack poses
extraordinary and, in some cases, unique challenges, ranging
from the difficulty of detecting the production of such agents
and providing timely warning of a potential attack, to the
consequences of a biological event, which could under certain
circumstances be more lethal than a nuclear explosion. Of
particular concern, from the Committee's viewpoint, are the
ready availability and dual use nature of the materials and
equipment used to prepare biological and chemical agents; the
relative ease with which a small group of terrorists could
produce such substances (compared, for example, with nuclear
weapons); the possibility of genetic engineering to defeat
countermeasures and increase the virulence and infectivity of
biological agents; the threats posed by the Iraqi and Iranian
biological weapons programs; and concerns over Russia's
remaining offensive biological warfare program, which according
to published reports could include biological warheads on
ICBMs, as well as the potential for transfer of scientific
expertise, or actual biological agents, from the Russian
program to rogue states or terrorist groups.
Many of the challenges cited above are intrinsic to the
nature of biological and chemical weapons, or otherwise largely
beyond the capacity of the U.S. Government to influence. The
Committee is disturbed, however, by public reports that a major
interagency study has revealed widespread problems and
deficiencies in the U.S. Government's counter-terrorism
strategy and capabilities, including intelligence programs and
activities under the Committee's jurisdiction. This is
discussed in greater detail in the Classified Annex, where the
Committee is directing that the Director of Central
Intelligence and the Attorney General report to the Committee
on measures they are taking or intend to take to address any
shortcomings they have identified.
DoD IG oversight of intelligence issues
In 1995, responding to Congressional concerns about DoD IG
oversight of DoD organizations within the Intelligence
Community, the DoD IG established an Office of Intelligence
Review. The Office of Intelligence Review's mission includes
overseeing DoD intelligence programs and activities as well as
coordinating activities of the Inspectors General within DoD
intelligence agencies such as NSA, NRO, and DIA. Many products
of the Office of Intelligence Review have been very useful to
this Committee.
In January 1998, as a result of overall DoD IG downsizing,
the Office of Intelligence Review was made a separate entity
reporting directly to the DoD IG. However, as part of this
reorganization, the staffing of the Office of Intelligence
Review was cut nearly in half. While the Committee applauds the
increased oversight potential created by establishing a
separate DoD IG office dedicated to reviewing intelligence
programs and activities, it is concerned that currentDoD IG
resource constraints could result in the Office of Intelligence Review
being reduced to an ineffective level or eliminated completely. Over
the next fiscal year the Committee will be evaluating the Office of
Intelligence Review's ability to continue to provide quality products
at its current staffing level.
Computer-proliferation education and training
The United States faces a qualitatively new proliferation
challenge to its national security interests. Because the
proliferation of weapons of mass destruction (WMD) and their
delivery systems poses a paramount, long term threat to the
country, the Committee is of the view that the country should
utilize education as an essential tool in support of the
training of counter-proliferation specialists equipped to
address this threat.
At the present time, however, explicit program authority is
not available to train American students adequately to confront
the proliferation challenge. Particularly noticeable by its
absence is government support for graduate training in the
counter-proliferation area, which includes WMD technologies and
capabilities, missile and other delivery system technologies
and capabilities, existing and required domestic response
capabilities, motivations and techniques of state and
subnational proliferators, and a careful assessment of existing
counter-proliferation regimes.
The National Security Education Act (NSEA) was enacted in
1991 ``to provide the necessary resources, accountability, and
flexibility to meet the national security education needs of
the United States, especially as such needs change over time''.
As drafted in 1991, the NSEA emphasized language and area
studies. Since then, the national security needs of the country
have changed. In an effort to generate limited but sustained
Federal support for counter-proliferation activities and
studies, the Committee amends the National Security Education
Act of 1991 to (1) specify counter-proliferation studies as a
primary area for Federal support, and (2) require that the
National Security Education Board established by the Act
include the Secretary of Energy. The Committee has as a goal
the allocation of not less than one-third of the amounts
specified under the Act for the awarding of fellowships to
graduate students and grants to institutions of higher learning
in the field of counter-proliferation training and studies.
In addressing the threats posed by the proliferation of
weapons of mass destruction, the Committee has not only been
supportive of the funding requests of the Intelligence
Community in combating this threat, but has also pointed the
way toward enhanced efforts by the community in newer,
nontraditional areas. Committee support for funding of counter-
proliferation education and training through an amended
National Security Education Act is not only consistent with
these efforts but can ultimately contribute to their success.
impact of technology on the intelligence community
Technical Advisory Group
In 1997, the Committee established a Technical Advisory
Group (TAG) to consider selected, highly significant technical
issues relating to national security or intelligence. The TAG
is comprised of leading U.S. scientists and experts in
technology and intelligence. The Committee wishes to thank the
TAG members for the many hours they devoted to examining both
the HUMINT and SIGINT capabilities of the Intelligence
Community (IC). The TAG concluded that intelligence collection
will pay an increasingly important role in defending U.S.
national security interests, and recommended that the IC
develop a comprehensive plan for transition to the future which
recognizes the technically sophisticated, rapidly changing
world that now confronts the IC. The Committee will continue to
review the recommendations of this distinguished group and work
with the Director of Central Intelligence to implement them.
Many of the initial recommendations of the TAG have been
incorporated throughout the Intelligence Authorization Act of
1999.
Encryption
The Committee remains concerned about efforts to
inappropriately ease or remove export restrictions on hardware
and software encryption products. Export controls on encryption
and other products serve a clearly defined purpose--to protect
our nation's security. Therefore, the Committee believes that
the effects on U.S. national security must be the paramount
concern when considering any proposed change to encryption
export policy, and will seek referral of any legislation
regarding encryption export policy under its jurisdiction
established under Senate Resolution 400.
Export restrictions on encryption products assist the
Intelligence Community in its signals intelligence mission. By
collecting and analyzing signals intelligence, U.S.
intelligence agencies seek to understand the policies,
intentions, and plans of foreign state and nonstate actors.
Signals intelligence plays an important role in the formation
of American foreign and defense policy. It is also a
significant factor in U.S. efforts to protect its citizens and
soldiers against terrorism, the proliferation of weapons of
mass destruction, narcotics trafficking, international crime
and other threats to our nation's security.
While the Committee recognizes the commercial interest in
easing or removing export restrictions, it believes the safety
of our citizens and soldiers should be the predominant concern
when considering U.S. policy towards the export of any product.
The Committee supports the continued control of encryption
products, and believes that a comprehensive strategy on
encryption export policy can and must be developed that
addresses national security concerns as well as the promotion
of American commercial interests abroad. The Committee looks
forward to working with senior Administration officials in
developing such a strategy.
Intelligence Community role in national infrastructure protection
The Committee believes the Intelligence Community has an
important role to play in the protection of our nation's
critical infrastructure. The President's Commission on Critical
Infrastructure Protection (PCCIP) issued a report in October
1997 which identified five critical infrastructures--energy,
banking and finance, transportation, vital human services, and
telecommunications--that are essential to national defense,
public safety, economic prosperity, and quality of life. In
pursuit of greater effectiveness and efficiency, the private
and public sector entities which manage these infrastructures
have integrated advanced information and communications
technologies into their systems. However, the widespread use
and interlinkage of computer and telecommunications throughout
these infrastructures has created new vulnerabilities which, if
not addressed, pose significant risks to our national security.
In response to the recommendations included in the PCCIP
Report, the Administration in February 1998 created a National
Infrastructure Protection Center (NIPC) within the Federal
Bureau of Investigation. The NIPC will be composed of the
former Computer Investigations and Infrastructure Threat
Assessment Center (CITAC), originally funded through the NFIP,
and other offices whose responsibilities include operational
response to computer intrusion incidents, and indications and
warnings for infrastructure and key asset protection. To be
successful in performing its mission, the NIPC must rely on the
Intelligence Community to provide timely and reliable
information regarding possible intrusions, disruptions, and
attacks committed by foreign actors on the critical
infrastructures.
In its version of the Intelligence Authorization Act for
Fiscal Year 1998 the Committee directed the Director of Central
Intelligence, the Secretary of Defense, and the Director of the
Federal Bureau of Investigation to submit a report articulating
a counterintelligence strategy for critical infrastructure
protection. The Committee received this report on March 30,
1998. While describing how intelligence agencies have chosen to
approach the infrastructure protection issue, this report did
not provide a detailed counterintelligence strategy nor did it
provide adequate information regarding current or planned
counterintelligence activities. With the creation of the NIPC,
the Committee believes the Intelligence Community needs a
comprehensive strategy to address counterintelligence, threat
assessment, indications and warnings, and other intelligence
requirements necessary to assist the NIPC in its infrastructure
protection mission. Therefore, the Committee directs the
Director of Central Intelligence and the Secretary of Defense
to perform a joint review to determine the proper role of the
Intelligence Community in critical infrastructure protection.
This review should: identify the assets and capabilities of
the Intelligence Community which may be of value to the
protection of the critical infrastructures; identify which
capabilities or technologies useful to intelligence collection
or analysis on infrastructure protection are presently lacking
within the Intelligence Community, including the capability to
provide indications and warnings; provide a counterintelligence
strategy designed to protect information regarding
vulnerabilities in United States infrastructure; state what, if
any, additional collection requirements have been implemented
to gain insight into activity against U.S. systems; describe
any training programs developed to increase awareness and
knowledge of analysts and collectors regarding infrastructure
protection concerns; explain how the Intelligence Community
will use its expertise and assets to assist the critical
infrastructures protection mission of the NIPC and other
government entities; and detail how the Intelligence Community
will provide timely and actionable intelligence regarding
foreign intrusions and attacks to the NIPC and other government
entities involved in critical infrastructure protection. This
review should also propose how protective techniques and
technologies developed or identified by the Intelligence
Community may be shared with the private and public sector
actors that manage these infrastructures. The Committee directs
that the review of the Intelligence Community's role in
infrastructure protection be provided to the Congressional
Intelligence Committees not later than March 15, 1999.
Assessment of the Intelligence Community's information infrastructure
In recent years, the Intelligence Community has
incorporated advanced computer and telecommunications
technologies into its organizations to improve their
intelligence collection and analytical capabilities, to
increase the productivity of its workforce, and to facilitate
communications between different member organizations. As the
agencies and offices of the Intelligence Community become more
reliant on these technologies, they have become more vulnerable
to intrusions, disruptions, and attacks against these systems.
The Committee realizes that any breakdown in the information
infrastructure of the Intelligence Community will adversely
affect its ability to provide timely intelligence to our
national security policymakers and military leaders.
To address this potential vulnerability, the Committee
directs the Director of Central Intelligence and the Secretary
Of Defense to formulate an Intelligence Community information
infrastructure security program to ensure the viability and
effectiveness of the Intelligence Community's information
infrastructure. This program shall develop and implement
procedures, practices, policies, and technologies designed to
secure and protect the IC's information infrastructure from
intrusion, disruptions, and attacks. It should also provide
internal controls, audit features, and other necessary elements
to address possible insider attacks and other
counterintelligence concerns. The Committee directs that the
Director of Central Intelligence and the Secretary of Defense
forward a report to the Congressional Intelligence Committees
not later than March 15, 1999.
The Committee is also concerned that there is no formal,
periodic review of the technologies and practices used by the
Intelligence Community to provide security and protection for
its information infrastructure. Therefore, the Committee
directs the Director of Central Intelligence and the Secretary
of Defense to perform regular, periodic assessments of
theprocedures, policies, and technologies implemented by the various
intelligence agencies and offices to secure and protect their computer
and telecommunications systems. These assessments shall be performed on
at least an annual basis. Further, the Committee directs that the
Intelligence Community complete an initial series of assessments by the
end of fiscal year 1999.
These assessments should include the following: a
determination of the adequacy of information infrastructure
security procedures and policies; a review of any technologies
in use to provide security and/or protect information
infrastructure; and the result of aggressive systematic,
controlled testing of the Intelligence Community's computer and
telecommunications systems for vulnerabilities to intrusion,
denial of use, attack, or other disruptive activity. These
assessments shall be provided by the Director of Central
Intelligence and the Secretary of Defense to the Congressional
Defense Committees not later than March 15, 1999.
DISCLOSURE OF INFORMATION TO CONGRESS
Background and need for legislation
It is not generally known that the ``Whistle Blower
Protection Act'' does not cover employees of the agencies
within the Intelligence Community. See 5 U.S.C. Sec. Sec. 2301
et seq. The ``whistle blower'' statute also expressly
proscribes the disclosure of information that is specifically
required by Executive Order to be kept secret in the interest
of national defense or the conduct of foreign affairs.
Therefore, employees within the Intelligence Community are not
protected from adverse personnel action if they choose to
disclose such information, irrespective of its classification,
to Congress. In fact, an employee who discloses classified
information to Congress without prior approval is specifically
subject to sanctions which may include reprimand, termination
of security clearance, suspension without pay, or removal. See
Exec. Order No. 12,958, 60 Fed. Reg. 19825 (1995). Some types
of unauthorized disclosures are also subject to criminal
sanctions. See 18 U.S.C. Sec. Sec. 641, 793, 794, 798, 952
(1996); 50 U.S.C. Sec. 783(b) (1996).
In accordance with Executive Order No. 12,958, classified
information must remain under the control of the originating
agency and may not be disseminated without proper
authorization. Consequently, an Executive Branch employee may
not disclose classified information to Congress without prior
approval. In fact, employees are advised that the agency will
provide ``access as is necessary for Congress to perform its
legislative functions. * * *'' ``Information Security Oversight
Office, General Services Administration, Classified Information
Nondislcosure Agreement (SF-312) Briefing Booklet,'' at 66. In
other words, the executive agency will decide what Members of
Congress may ``need to know'' to perform their constitutional
oversight functions. The President, in effect, asserts that he
has exclusive or plenary authority to oversee the regulation of
national security information.
In response to the Administration's position, the Select
Committee on Intelligence of the United States Senate reported
the Intelligence Authorization Act for Fiscal Year 1998, which
included a provision that specifically addressed this issue.
See S. 858, 105th Cong., 1st Sess. Sec. 306 (1997). The Senate
passed the bill by a vote of ninety-eight to one. Shortly after
the Senate vote, the Administration issued a Statement of
Administration Policy stating that section 306 was
unconstitutional, and that if it remained in the bill in its
present form, senior advisers would recommend that the
President veto the bill.
Section 306 directed the President to inform all Executive
Branch employees that disclosing classified information to an
appropriate oversight committee to their Congressional
representative is not prohibited by any law, executive order,
or regulation or otherwise contrary to public policy, if the
employee reasonably believes that the classified information
evidences: a violation of any law, rule, or regulation; a false
statement to Congress on an issue of material fact; or gross
mismanagement, a gross waste of funds, an abuse of authority,
or a substantial and specific danger to public health or
safety. This provision was intended to ensure that Congress
received information necessary to fulfill its constitutional
oversight responsibilities. It was also intended to protect
employees from adverse actions based on what was heretofore
considered an unauthorized disclosure to Congress.
The Committee intended disclosure to an appropriate
oversight committee to mean disclosure to cleared staff or a
member of the committee with jurisdiction over the agency
involved in the wrongdoing. Members or committee staff who
received such information from an employee were to be presumed
to have received it in their capacity as members or staff of
the appropriate oversight committee. The Committee believed
that this presumption was necessary because Members and staff
are responsible for ensuring that the information is protected
in accordance with committee rules and brought to the attention
of the leadership of the committee. The President, by informing
Executive Branch employees as directed in section 306, would
have authorized disclosure to the appropriate oversight
committee or members, thereby recognizing that these committees
and members have a ``need to know'' the information as required
by current Executive Branch restrictions on disclosure of
classified information.
In conference, members of the House Permanent Select
Committee on Intelligence (HPSCI) and the Senate Select
Committee (SSCI) did not agree to include section 306 as passed
by the Senate. The Senate offered to amend section 306, thereby
significantly narrowing the scope of the provision to cover
only employees of agencies within the Intelligence Community
(the Senate-passed version covered all executive employees).
The Senate amendment further narrowed the provision by allowing
disclosure only to committees with primary jurisdiction over
the agencies involved (the original language also allowed
disclosure to a Member of Congress who represented the
employee).
The Chairman and Ranking Member of the House Committee
expressed concern over the possible constitutional implications
of such language. They were also mindful of the
Administration's veto threat as expressed in the Statement of
Administration Policy. The Chairman and vice Chairman of the
Senate Select Committee, in deference to their Housecolleague's
concerns, agreed to amend the provision to express a sense of the
Congress that Members of Congress have equal standing with officials of
the Executive Branch to receive classified information so that Congress
may carry out its oversight responsibilities.
The managers' decision not to include section 306 of the
Senate bill in the conference report, however, was not intended
by either body to be interpreted as agreement with the
Administration's position on whether it is constitutional for
Congress to legislate on this subject matter. The managers'
actions were also not to be interpreted as expressing agreement
with the opinion of the Justice Department's Office of Legal
Counsel, which explicitly stated that only the President may
determine when Executive Branch employees may disclose
classified information to Members of Congress. The managers
asserted in their Conference Report that members of
congressional committees have a need to know information,
classified or otherwise, that directly relates to their
responsibility to conduct vigorous and thorough oversight of
the activities of the executive departments and agencies within
their committees' jurisdiction. Therefore, the President may
not assert an unimpeded authority to determine otherwise.
While the managers recognized the Chief Executive's derived
constitutional authority to protect sensitive national security
information, they did not agree with the Administration that
the authority is exclusive. Members of both committees also
agreed that whatever the scope of the President's authority, it
may not be asserted against Congress to withhold evidence of
misconduct or wrongdoing and thereby impede Congress in
exercising its constitutional legislative and oversight
authority. Therefore, the managers committed to hold hearings
on this issue and develop appropriate legislative solutions in
the second session of the 105th Congress.
The Senate Select Committee held public hearings on
February 4 and 11, 1998 to examine the constitutional
implications of legislation such as section 306. The Committee
heard from constitutional scholars and legal experts on both
sides of the issue. Mr. Randolph D. Moss, Deputy Assistant
Attorney General from the Department of Justice Office of Legal
Counsel, testified in support of the Administration's position
that section 306 and any similar language represents an
unconstitutional infringement on the President's authority as
Commander in Chief and Chief Executive. Mr. Moss asserted the
following:
(A) The President, as Commander in Chief, Chief Executive,
and sole organ of the Nation in its external relations has
ultimate and unimpeded authority over the collection,
retention, and dissemination of intelligence and other national
security information.
(B) Any congressional enactment that may be interpreted to
divest the President of his ultimate control over national
security information is an unconstitutional usurpation of the
exclusive authority of the Executive.
(C) The Senate's language vests lower-ranking personnel in
the Executive Branch with a ``right'' to furnish such
information to a Member of Congress without prior official
authorization from the President or his delegee. Therefore,
section 306 and any similar provision is unconstitutional.
The Committee also heard Professor Peter Raven-Hansen, Glen
Earl Weston Research Professor of Law from the George
Washington University Law School, and Dr. Louis Fisher, Senior
Specialist (Separation of Powers) from the Congressional
Research Service, testify that the President's authority in
this area is not exclusive. Hence, these experts believed that
Congress already has authority to regulate the collection,
retention, and dissemination of national security information.
Professor Raven-Hansen and Dr. Fisher asserted the following:
(A) A claim of exclusive authority must be substantiated by
an explicit textual grant of such authority by the
Constitution.
(B) There is no express constitutional language regarding
the regulation of national security information as it pertains
to the President.
(C) The President's authority to regulate national security
information is an implied authority flowing from his
responsibilities as Commander in Chief and Chief Executive.
(D) As the regulation of national security information is
implicit in the command authority of the President, it is
equally implicit in the broad array of national security and
foreign affairs authorities vested in the Congress by the
Constitution. In fact, Congress has legislated extensively over
a long period of time to require the President to provide
information to Congress.
(E) Congress may legislate in this area because the
Executive and Legislative Branches share constitutional
authority to regulate national security information.
(F) The Supreme Court has never decided a case that
specifically addressed this issue.
(G) The provision is constitutional because it does not
prevent the President from accomplishing his constitutionally
assigned functions, and because any intrusion upon his
authority is justified by an overriding need to promote
objectives within the constitutional authority of Congress.
The Committee found the last argument to be persuasive and
determined that the Administration's intransigence on this
issue compelled the Committee to act.
Following the public hearing on February 11th, the
Committee met to mark up a modified version of section 306. One
amendment was offered by a member of the Committee and
wasadopted unanimously. The bill was favorably reported from the
Committee on February 23, 1998. The Senate considered the bill (S.
1668) on March 9, 1998 and passed it on a roll call vote of 93 to one.
The bill was sent to the House of Representatives and has yet to be
considered by that body. Despite assurances by the Chairman and Ranking
Member of the Permanent Select Committee on Intelligence of the House
of Representatives, the HPSCI has not, as of this printing, held a
hearing or met to consider similar legislation. Therefore, in light of
the relatively short legislative calendar in this session, the
Committee has included this provision in order to give the House of
Representatives another opportunity to consider the benefits of this
type of legislation.
This bill as passed by the U.S. Senate is contained in
title V of this bill and is explained in the section by section
analysis.
SECTION-BY-SECTION ANALYSIS AND EXPLANATION
TITLE I--INTELLIGENCE ACTIVITIES
Sec. 101. Authorization for appropriations
Section 101 lists departments, agencies, and other elements
of the United States Government for whose intelligence and
intelligence-related activities the Act authorizes
appropriations for fiscal year 1999.
Sec. 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 personnel ceilings for the
entities listed in section 101 for fiscal year 1999 are
contained in a classified Schedule of Authorizations. The
Schedule of Authorizations is incorporated into the Act by this
section.
Sec. 103. Personnel ceiling adjustments
Section 103 authorizes the Director of Central
Intelligence, with the approval of the Director of the Office
of Management and Budget, in fiscal year 1999 to exceed the
personnel ceilings applicable to the components 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 Director may exercise this authority only when
necessary to the performance of important intelligence
functions or to the maintenance of a stable personnel force,
and any exercise of this authority must be reported to the two
intelligence committees of the Congress.
Sec. 104. Community management account
Section 104 provides certain details concerning the amount
and composition of the Community Management Account (CMA) of
the Director of Central Intelligence.
Subsection (a) authorizes appropriations in the amount of
$138,623,000 for fiscal year 1999 for the staffing and
administration of various components under the CMA. Subsection
(a) also authorizes funds identified for the Advanced Research
and Development Committee and the Environmental Intelligence
and Applications Program to remain available for two years.
Subsection (b) authorizes a total of 283 full-time
personnel for elements within the CMA for fiscal year 1999 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) explicitly authorizes the classified portion
of the CMA.
Subsection (d) requires that personnel be detailed on a
reimbursable basis, with certain exceptions.
Subsection (e) authorizes $27,000,000 of the amount
authorized for the CMA under subsection (a) to be made
available for the National Drug Intelligence Center (NDIC) in
Johnstown, Pennsylvania. Subsection (c) requires the Director
of Central Intelligence to transfer the $27,000,000 to the
Department of Justice to be used for NDIC activities under
authority of the Attorney General, and subject to section
103(d)(1) of the National Security Act. The Committee has also
restricted the transfer of the funds authorized in subsection
(e) pending the receipt by the congressional intelligence
committees of a report mandated in the Intelligence
Authorization Act for Fiscal Year 1998.
TILE II--CENTRAL INTELLIGENCE AGENCY RETIREMENT AND DISABILITY SYSTEM
Sec. 201. Authorization of appropriations
Section 201 authorizes appropriations in the amount of
$201,500,000 for fiscal year 1999 for the Central Intelligence
Agency Retirement and Disability Fund.
TITLE III--GENERAL PROVISIONS
Sec. 301. Increase in employee compensation and benefits authorized by
law
Section 301 provides that appropriations authorized by the
conference report for salary, pay, retirement and other
benefits for federal employees may be increased by such
additional orsupplemental amounts as may be necessary for
increases in such compensation or benefits authorized by law.
Sec. 302. Restriction on conduct of intelligence activities
Section 302 provides that the authorization of
appropriations by the conference report shall not be deemed to
constitute authority for the conduct of any intelligence
activity which is not otherwise authorized by the Constitution
or laws of the United States.
Sec. 303. Extension of application of sanctions laws to intelligence
activities
Section 303 extends until January 6, 2000, the authority
first granted by section 303 of the Intelligence Authorization
Act for Fiscal Year 1996 for the President to delay the
imposition of an economic, cultural, diplomatic, or other
sanction upon his determination that proceeding with the
sanction could compromise an ongoing criminal investigation or
an intelligence source or method. This authority was extended
until January 6, 1998, by section 304 of the Intelligence
Authorization Act for Fiscal Year 1997, and again until January
6, 1999, by section 304 of the Intelligence Authorization Act
for Fiscal Year 1998. There is a continuing need for this
authority in the event that an automatic or immediate
imposition of sanctions would seriously jeopardize a criminal
investigation or sources and methods of intelligence
collection.
Sec. 304. Extension of authority to engage in commercial activities as
security for intelligence collection activities
Section 304 amends section 431(a) of title 10 to extend
current Department of Defense authority to engage in commercial
activities as security for intelligence collection activities
until December 31, 2000.
Sec. 305. Modification of National Security Education Program
Section 305 amends the David C. Boren National Security
Education Act of 1991, by adding counter-proliferation studies
as an area of primary emphasis in the Act. Section 305
substitutes the Secretary of Energy for the Director of the
United States Information Service as a Member of the National
Security Education Board, which continues to include the
Secretaries of Defense, Education, State, and Commerce, and the
Director of Central Intelligence.
Sec. 306. Technical amendments
Section 306 makes technical corrections to section 5(a)(1)
and section 6 of the Central Intelligence Agency (CIA) Act of
1949 and section 201(c) of the CIA Retirement Act. The cross-
reference in section 5(a)(1) of the CIA Act to subparagraphs
(B) and (C) of section 102(a)(2) of the National Security Act
is no longer current or accurate, and should cite instead to
subsections (a)(2) and (a)(3) of section 102. Section 805(a) of
the Intelligence Authorization Act for Fiscal Year 1997 (Pub.
L. No. 104-293) changed what had been sections 102 (a)(2)(B)
and (C) of the National Security Act to sections 102 (a)(2) and
(a)(3) of the Act. Similarly, the cross-references in section 5
(a)(1) and section 6 of the CIA Act to ``subsection (c)(5) of
section 103'' and to ``section 103 (c)(5) of the National
Security Act of 1947 (50 U.S.C. Sec. 403-3 (c)(5));''
respectively, are no longer current or accurate. The cross-
reference in section 201 (c) of the CIA Retirement Act to that
same provision of the National Security Act is also outdated.
Section 807 (a)(2) of the Intelligence Authorization Act for
Fiscal Year 1997 changed what had been section 103 (c)(5) to
section 103 (c)(6) (50 U.S.C. Sec. 403-3 (c)(6)). Section 401
of the present legislation simply updates the cross-references
in section 5 (a)(1) and section 6 of the CIA Act and section
201 (c) of the CIA Retirement Act to the pertinent provision of
the National Security Act.
TITLE IV--CENTRAL INTELLIGENCE AGENCY
Sec. 401. Extension of separation pay program for voluntary separation
of CIA employees
Section 401 amends section 2(f) of the CIA Voluntary
Separation Pay Act, Public Law 103-36, 50 U.S.C. Sec. 403-4
note, to extend the Agency's authority to offer separation
incentives until September 30, 2001. Without this amendment,
the Agency's authority to offer such incentives would expire on
September 30, 1999.
The net impact of the six CIA ``early out'' exercises thus
far, along with normal attrition and reduced hiring, has been a
significant drop in the Agency's on-duty strength since the
separation incentive program began in FY 1993. However, rapid
worldwide technological change and increasing concern about
such diverse issues as international terrorism, proliferation,
drug trafficking, and political instability require the Agency
to do more to address the skills mix of the Agency population.
The Agency must continue to reduce or eliminate outdated
professions, accelerate the transfer of resources from support
to mission-critical work, and hire people with state-of-the-art
skills. Voluntary Separation Incentive Pay authority--used for
specific, targeted populations--will help the CIA achieve those
goals without resorting to involuntary separations in certain
occupational categories. The incentive pay would be targeted
principally at individuals in outdated occupations and skill
categories who would not be separating via regular attrition or
switching to another work area after retraining.
Incentive authority through the year 2001 will help enable
the Agency to ensure its workforce has the right skills in the
right areas at the right time.
Sec. 402. Additional duties for Inspector General of Central
Intelligence Agency
Section 402 gives the CIA Office of Inspector General (OIG)
responsibility to review and comment in the Inspector General's
(IG) semiannual reports on existing and proposed legislation
relating to programs and operations of the Agency. Review and
comment by the IG on legislation will complement the IG's
responsibility to promote economy and efficiency in Agency
programs and operations and will be useful to the DCI and the
intelligence committees of Congress as an independent source of
analysis.
This function enables the IG to express OIG's views
concerning the impact of legislation on the economy and
efficiency of Agency activities and the prevention and
detection of fraud in such activities. While such a function is
implicit in the broad mandate of the Inspector General, the
Committee believes that authority for legislative review should
be recognized explicitly in the statute.
TITLE V--DISCLOSURE OF CLASSIFIED INFORMATION TO CONGRESS
Sec. 501. Encouragement of disclosure of certain information to
Congress
Section 501 is divided into subsections (a) through (d).
Subsection (a)(1) directs the President to take appropriate
actions to inform the employees of agencies covered in
subsection (d) and employees of contractors of such agencies
that the disclosure of information described in paragraph (2)
to individuals referred to in paragraph (3) is not prohibited
by law, executive order, or regulation or otherwise contrary to
public policy. In other words, the President is directed to
inform ``covered employees'' that it will not be considered an
``unauthorized disclosure'' if they provide certain information
to Congress, if that information is provided to the appropriate
member and the information falls within the specified
categories.
Subsection (a)(1) does not, however, define the means by
which the President must implement this direction. The
Committee refrained from expressly stating the types of actions
that the President should take as we have in previous measures.
See, e.g., Counterintelligence and Security Enhancements Act of
1994, Pub. L. No. 103-359, title VIII, Sec. 802(a), 108 Stat.
3435 (1994). The Committee has intentionally allowed the
President a great deal of latitude to implement this
legislation. The Committee does not, however, intend this
permissive approach to be interpreted as license ity to promote
economy and efficiency in Agency programs and operations and
will be useful to the DCI and the intelligence committees of
Congress as an independent source of analysis.
This function enables the IG to express OIG's views
concerning the impact of legislation on the economy and
efficiency of Agency activities and the prevention and
detection of fraud in such activities. While such a function is
implicit in the broad mandate of the Inspectuch information.
This language is consistent with the argument propounded by the
Administration in a brief that it filed in the Supreme Court in
1989. See Brief for Appellees, American Foreign Service
Association v. Garfinkel, 488 U.S. 923 (1988) (No. 87-2127). In
the Garfinkel brief the Department of Justice stated that ``the
President has uniformly limited access to classified
information to persons who have a need to know the particular
information, such as a congressional committee having specific
jurisdiction over the subject matter.'' Id at 16 (emphasis
added).
Paragraph (1)(C) is intended to ensure that members receive
information only in their capacity as a member of the committee
concerned. The Committee is adamant that any information
received by a member of one of the appropriate committees be
protected in accordance with that committee's rules for
safeguarding classified material and be reported to the
committee's leadership. Accordingly, a member is not free to
accept covered information as a member of a committee
unrestrained by such rules or to withhold knowledge of the
information from the committee's leadership. The various
national security committees enjoy a long history of trust with
the Executive Branch and that record will be continued.
Paragraph (2) defines the type of information that an
employee may bring to Congress. It is intended to cover all
information in the covered categories, including classified
information. Paragraphs (2)(A) and (C) are taken nearly
verbatim from the text of the ``Whistle Blower Protection Act''
and are intended to have the same meaning. See 5 U.S.C.
Sec. 2302(b)(8)(A)(i)-(ii) (1994 & Supp. II 1996). The
Committee did slightly narrow the language, however, to cover
only flagrant abuses of authority. The Committee intended to
address only those abuses that are so objectionable as to
warrant the attention of Congress.
Paragraph (2)(B) is not found in the ``whistle blower''
statute and was added to ensure that information pertaining to
a false statement to Congress is brought to our attention. In
the interest of legislative efficiency, however, the Committee
is most concerned with those false statements that pertain to
an issue of material fact. The material facts of an issue are
those facts that a reasonable person would consider important
in reviewing that particular issue. Congress depends on the
accuracy of the information provided to it, and when our
oversight is based on false information, we must be made aware
of it even if the President would prefer to withhold the fact
that false information has been provided.
Paragraph (3) refers to the individuals to whom information
described in paragraph (2) may be disclosed. Although the
Senate Select Committee on Intelligence is composed, inter
alia, of members from the Committee on Appropriations, Armed
Services, and the Judiciary, we recognize that those committees
share jurisdiction with this Committee and each has as
itsprimary responsibilities the oversight of some of the department,
agencies or elements of the Federal Government to which such
information relates. As noted earlier, the individuals to whom
information may be disclosed was narrowed significantly from section
306 of the Intelligence Authorization Act of Fiscal Year 1998 to
further ensure the protection of the information.
Paragraph (4) recognizes the inviolability of the rule of
secrecy in grand jury proceedings. The Committee does not
intend this legislation to circumvent the obligation of secrecy
imposed by Rule 6(e) of the Federal Rules of Criminal Procedure
and therefore paragraph (1)(A) does not apply to such
information. The Committee does not believe, however, that
disclosures to Congress fall under the rubric or other statutes
that prohibit the disclosure of certain information. The
Congress is an entity of the federal government and is capable
of protecting such information in the same manner as an
executive agency or department. Accordingly, the Committee does
not view a disclosure to Congress as a disclosure outside of
the government.
Subsection (b) directs the President to submit a report to
Congress on the actions taken under subsection (a). The
Committee expects to see a report that describes any procedures
established or guidance given to the various agencies,
departments, or elements. If the President gives wide
discretion to agency heads, the Committee would also like the
report to address how each agency or department has implemented
this legislation.
Section (c) is intended to protect the integrity of other
reporting requirements enacted into relevant law.
Section (d) defines the covered agencies. These are the
agencies exempted from the ``whistle blower'' statute. See 5
U.S.C. Sec. 2302(a)(2)(C)(ii) (1994 & Supp. II 1996).
TITLE VI--FOREIGN INTELLIGENCE AND INTERNATIONAL TERRORISM
INVESTIGATIONS
Sec. 601. Pen registers and trap and trace devices in foreign
intelligence and international terrorism investigations
Section 601 amends the Foreign Intelligence Surveillance
Act of 1978, 50 U.S.C. Sec. 1802, et seq. (FISA) to authorize
pen registers and trap and trace devices in foreign
intelligence and international terrorism investigations being
conducted by the FBI under guidelines approved by the Attorney
General. In particular, it authorizes FISA judges to issue a
pen register or a trap and trace order upon a certification
that the information sought is relevant to such an ongoing
investigation.
The amendment allows the use of pen registers and trap and
trace devices in foreign intelligence and international
terrorism investigations. Although such devices can be utilized
at present, current procedures do not reflect changes in the
law since FISA was enacted. Before the use of such device
today, the complete FISA predicate for actual interception of
the oral or verbal contents on the communication itself must be
satisfied. That predicate is designed to satisfy strict
constitutional requirements or the conduct of a ``search''
within the meaning of the Fourth Amendment. However, and
subsequent to passage of FISA in 1978, the Supreme Court held
in Smith v. Maryland, 442 U.S. 735 (1979), that accessing
numbers dialed to contact another communications facility is
not a Fourth Amendment ``search''. Thus, current procedures
impose a standard that is more rigorous than the constitution
requires. Section 501 establishes a predicate for the use of
pen registers or trap and trace devices that is consistent with
that opinion and is analogous to the statutory standard for the
use of these devices in criminal investigations. This authority
is necessary in order to permit, as is the case in criminal
investigations, the use of this very valuable investigative
tool at the critical early stages of foreign intelligence and
international terrorism investigations.
Unlike the criminal standard, however, this section
requires substantially more than mere ``relevance'' to an
ongoing investigation see 18 U.S.C. Sec. 3122(b)(2). In
addition to relevancy, the government must also demonstrate
that the telephone line involved has been or is about to be
used in communication with an international terrorist or a
person engaged in clandestine intelligence activities that may
involve a violation of law.
Each application must also be approved by the Attorney
General or a designated attorney for the Government, with
certification by the Federal Bureau of Investigation that the
underlying investigation is being conducted under guidelines
approved by the Attorney General. It is the committees
understanding that the ``designated attorney'' for the
Government will be the Counsel for Intelligence Policy in the
Department of Justice. Further delegation of this authority
should be done only after the committee is briefed on the
compelling need for it.
Applications must be submitted to the Foreign Intelligence
Surveillance Court established by FISA; however, the section
also allows the designation of Federal magistrates to hear
applications for and grant orders approving the installation
and use of pen registers or trap and trace devices. This
procedure will possibly permit these applications to be heard
in a more timely manner and is an appropriate analog to that
used in criminal investigations. The committee expects that the
exercise of this new authority will be carefully monitored by
the Justice Department, and that no magistrates will be
designated to hear applications until the committee is briefed
on the compelling need to do so, which could be demonstrated,
for example, by the number of applications presented to the
FISA Court under this new procedure.
Upon request of the applicant, the order authorizing the
use of such devices can require that the provider of a wire or
electronic communication service, landlord, custodian, or other
person not disclose the existence of the investigation or of
the pen register until ordered by the Court. The order can also
direct hat any records concerning the pen register or trap and
trace device held by such persons be maintained under security
procedures approved by the Attorney General and the Director of
Central Intelligence. These two provisions are identical to
existing FISA provisions regarding electronic surveillance and
are necessary to protect the FBI's foreignintelligence
investigations from disclosure to hostile powers or international
terrorist organizations. In addition, the new section includes
restrictions or the use of information and the requirement for
continuing congressional oversight, similar to provisions in Sec. 106
and 107 of the FISA.
Sec. 602. Access to certain business records for foreign intelligence
and international terrorism investigations
Section 602 also amends the Foreign Intelligence
Surveillance Act (FISA) by giving the Federal Bureau of
Investigation, in conducting foreign intelligence and
international terrorism investigations, authority to apply for
court orders to obtain records to common carriers, hotels,
communications providers, and storage facilities.
Under existing criminal law, grand jury subpoenas may be
issued, and the Attorney General has delegated authority to
certain Federal agencies in narcotics investigations to issue
administrative subpoenas. No analogue to these authorities
exists in foreign intelligence and international terrorism
investigations. When the FBI seeks common carrier records
relating to the clandestine activities of an agent of a foreign
power or an international terrorist, compliance is voluntary,
and some entities have chosen not to cooperate.
This new section requires that any or all of the four
entities (common carrier, hotel, communications provider, and/
or storage facility) comply with a court order based on the
certification by the FBI that the records are sought for
foreign intelligence purposes, and that there are specific and
articulable facts giving reason to believe that the person to
whom the records pertain is a foreign power or an agent of a
foreign power.
The section also requires that any or all of the four
covered entities not disclose the fact that the FBI has sought
or obtained the records in question. This is necessary to
protect the existence of the investigation from hostile foreign
powers or international terrorist groups.
The terms ``common carrier,'' public accommodation
facility,'' ``physical storage facility,'' and ``vehicle rental
facility'' are defined. These are the four entities where the
greatest need for compulsory access exists because of their
frequent use by subjects of FBI foreign intelligence and
international terrorism investigations.
In additional, the section includes provisions for
continuing congressional oversight. The committee feels
strongly that these provisions are necessary to insure that
these new authorities are carefully executed.
committee action
On May 7, 1998 the Select Committee on Intelligence
approved the bill and ordered that it be favorably reported.
estimate of costs
Pursuant to paragraph 11(a) of rule XXVI of the Standing
Rules of the Senate, the estimated costs incurred in carrying
out the provisions of this bill, for fiscal year 1999, are set
forth in the classified annex to this bill. Estimates of the
costs incurred in carrying out this bill in the five fiscal
years thereafter are not available from the Executive Branch,
and therefore the Committee deems it impractical, pursuant to
paragraph 11(a)(3) of rule XXVI of the Standing Rules of the
Senate, to include such estimates in this report.
evaluation of regulatory impact
In accordance with paragraph 11(b) of rule XXXVI of the
Standing Rules of the Senate, the Committee finds that no
regulatory impact will be incurred by implementing the
provisions of this legislation.
changes in existing law
In the opinion of the Committee, it is necessary to
dispense with the requirements of section 12 of rule XXVI of
the Standing Rules of the Senate in order to expedite the
business of the Senate.
