[Senate Report 109-259]
[From the U.S. Government Printing Office]
109th Congress Report
SENATE
2d Session 109-259
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INTELLIGENCE AUTHORIZATION ACT FOR FISCAL YEAR 2007
_______
May 25, 2006.--Ordered to be printed
_______
Mr. Roberts, from the Select Committee on Intelligence, submitted the
following
R E P O R T
together with
ADDITIONAL VIEWS
[To accompany S. 3237]
The Select Committee on Intelligence (SSCI or Committee),
having considered the original bill (S. 3237), to authorize
appropriations for fiscal year 2007 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 2007, 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 2007.
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 2007 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, in the past, 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 2007 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 elements within the CMA for
fiscal year 2007.
Subsection (a) authorizes appropriations of $648,952,000
for fiscal year 2007 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 1,575 full-time personnel for
elements within the CMA for fiscal year 2007 and provides that
such personnel may be permanent employees of a 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, 2008.
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.
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. Availability to public of certain intelligence funding
information
Section 107 would require the President to disclose the
aggregate amount of funds requested for the National
Intelligence Program in the annual budget submission for the
program. The section would also require Congress to disclose
the aggregate amount of funds authorized to be appropriated,
and the aggregate amount appropriated, for the National
Intelligence Program. It also directs the DNI to conduct a
study to assess the advisability of publicly disclosing the
aggregate amount of funding requested, authorized, and
appropriated for each of the 16 elements of the Intelligence
Community. The report must be submitted to Congress within 180
days of enactment of this Act.
Section 108. Response of Intelligence Community to requests from
Congress for intelligence documents and information
Section 108 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
$256,400,000 for fiscal year 2007 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 304. Improvement of notification of Congress regarding
intelligence activities of the United States Government
Section 304 amends the requirements for notifications to
Congress under Sections 502 and 503 of the National Security
Act of 1947 (50 U.S.C. 413a & 413b). First, Section 304 amends
the definition of ``congressional intelligence committees'' in
Section 3(7) of the National Security Act of 1947 (50 U.S.C.
401a(7)), specifically including ``each member'' of the Select
Committee on Intelligence of the Senate and the Permanent
Select Committee on Intelligence of the House of
Representatives within such definition. Second, Section 304
requires that, in the event that the DNI or the head of an
Intelligence Community element does not provide to all Members
of the ``congressional intelligence committees'' the
notification required by Section 502 (relating to intelligence
activities other than covert actions) or Section 503 (relating
to covert actions) of the National Security Act of 1947, that
all Members will be provided with a notification of this fact
and will be provided with a summary of the intelligence
activity or covert action in a manner sufficient to permit such
Members to assess the legality, benefits, costs, and
advisability of the intelligence activity or covert action.
Third, Section 304 extends requirements in Section 502 of the
National Security Act of 1947 on the form and contents of
reports to the ``congressional intelligence committees'' on
intelligence activities other than covert actions to the
requirements for notifications to Congress under Section 503 of
that Act (relating to covert actions). Fourth, the section
requires that any change to a covert action finding under
Section 503 of that Act must be reported to the committees,
rather than the existing requirement to report any
``significant'' change.
Section 305. 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 (PDDNI) or, with
respect to Central Intelligence Agency (CIA) employees, to the
Director of the CIA.
Section 305 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 305 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 306. Modification of availability of funds for different
intelligence activities
Section 306 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 307. Additional limitation on availability of funds for
intelligence and intelligence-related activities
Section 307 specifies that appropriated funds may be
obligated or expended for an intelligence or intelligence-
related activity only if the ``congressional intelligence
committees'' have been ``fully and currently informed'' of that
activity, or if all Members have been provided a summary of the
activity, consistent with the requirements of Sections 502(b)
and 503(c)(5) of the National Security Act of 1947 (50 U.S.C.
413a(b) & 413b(c)(5)), as amended by Section 304 of this Act.
Section 308. Increase in penalties for disclosure of undercover
intelligence officers and agents
Section 308 amends Section 601 of the National Security Act
(50 U.S.C. 421) to increase the criminal penalties for
individuals with authorized access to classified information
whointentionally disclose any information identifying a covert
agent, if those individuals know that the United States is taking
affirmative measures to conceal such covert agent's intelligence
relationship to the United States. Currently, the maximum sentence for
disclosure by someone who has had ``authorized access to classified
information that identifies a covert agent'' is 10 years. Subsection
(a) increases that maximum sentence to 15 years. Currently, the maximum
sentence for disclosure by someone who ``as a result of having
authorized access to classified information, learns of the identity of
a covert agent'' is 5 years. Subsection (b) increases that maximum
sentence to 10 years.
Section 309. Retention and use of amounts paid as debts to elements of
the Intelligence Community
Section 309 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 additional funds to be provided through the next
annual appropriation cycle inhibits the Intelligence
Community's ability to quickly and efficiently support the war
fighter and other national intelligence missions.
Section 309 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 310. 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, 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 310 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 to share with other elements of the
Intelligence Community information covered by the Privacy Act
pertaining to an identifiable individual when that information
is relevant to a lawful and authorized foreign intelligence or
counterintelligence activity. To share such foreign
intelligence or counterintelligence information under this
provision pertaining to other than an identifiable individual
would require the authorization of the DNI or his designee.
Second, the provision permits the head of an element of the
Intelligence Community to request in writing from another
United States government agency 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. Third, the provision authorizes heads of
non-Intelligence Community agencies 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 310
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 similar to the exemption extended
to the DNI under Section 416 of this Act.
Section 310 will not be effective until the DNI and the
Attorney General issue guidelines governing the implementation
and exercise of the authorities granted by the section. The
guidelines will ensure that Section 310 is implemented in a
manner designed to protect theconstitutional rights of U.S.
persons and consistent with existing law, regulations, and Executive
orders governing the conduct of intelligence activities.
It is important to note that Section 310 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 of
information concerning international terrorism and the
proliferation of weapons of mass destruction). The provision
expressly states that the new authority to share already
collected information 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 310 establishes a three-year pilot program.
The exception to the Privacy Act will expire three years after
the DNI and the Attorney General issue the guidelines discussed
above, unless renewed. During the course of the program, the
DNI and the Attorney General, in consultation with the Privacy
and Civil Liberties Oversight Board, are required to submit to
the intelligence committees annual reports on the status and
implementation of the pilot program. Additionally, six months
prior to the expiration of the program, 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. Similarly,
the Privacy and Civil Liberties Oversight Board will submit to
the 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 310 includes modifications proposed by the Armed
Services Committee, the Homeland Security and Governmental
Affairs Committee, and individual Members of the Senate. Both
the Office of the DNI and the Department of Justice (DoJ) have
expressed their support for this provision. Specifically, in a
letter to the Committee dated December 1, 2005, referring to a
provision similar to Section 310 in the Committee-passed
Intelligence Authorization Act for Fiscal Year 2006, the DNI
wrote, the ``Administration strongly supports this provision
because it would facilitate the type of information sharing
mandated by the [Intelligence Reform and Terrorism Prevention
Act of 2004], consistent with the need to protect privacy and
civil liberties.'' Similarly, in a separate letter to the
Committee dated November 28, 2005, the Assistant Attorney
General for Legislative Affairs wrote, ``We support section 307
[of the Committee-passed Intelligence Authorization Act for
Fiscal Year 2006]. * * * We believe that this provision would
help in resolving some of the concerns that some agencies have
expressed about sharing information with the FBI for
counterterrorism purposes.'' In fact, the DNI included a
Privacy Act exception similar to Section 310 in this year's
annual request for legislative authorities.
Section 311. 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 311 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 subsequent 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
311 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 312. Availability of funds for travel and transportation of
personal effects, household goods, and automobiles
Section 312 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.
Section 313. Director of National Intelligence report on compliance
with the Detainee Treatment Act of 2005
Section 313 requires the DNI to submit a classified report
to the intelligence committees on all measures taken by the
Office of the DNI, and by any element of the Intelligence
Community with relevant responsibilities, on compliance with
two provisions of the Detainee Treatment Act of 2005. The
report is to be submitted no later than September 1, 2006.
The Detainee Treatment Act of 2005 provides, in part, that
no individual in the custody or under the physical control of
the United States, regardless of nationality or physical
location, shall be subject to cruel, inhuman, or degrading
treatment or punishment. The report required by Section 313
shall include a description of any detention or interrogation
methods that have been determined to comply with this
prohibition or have been discontinued pursuant to it.
The Detainee Treatment of Act of 2005 also provides, in
part, for the protection, against civil or criminal liability,
for United States Government personnel who had engaged in
officially authorized interrogations that were determined to be
lawful at the time. Section 313 requires the DNI to report on
actions taken to implement that provision.
The report required by Section 313 shall also include an
appendix containing all guidelines on the application of the
Detainee Treatment Act of 2005 to the detention or
interrogation activities, if any, of any element of the
Intelligence Community. The appendix shall also include all
legal opinions of the DoJ about the meaning of the Detainee
Treatment Act of 2005 or its application to detention or
interrogation activities, if any, of any element of the
Intelligence Community.
Section 314. Report on alleged clandestine detention facilities for
individuals captured in the global war on terrorism
Section 314 requires the DNI to submit a classified,
detailed report to the Members of the intelligence committees
that provides a full accounting on each clandestine prison or
detention facility, if any, currently or formerly operated by
the United States Government, regardless of location, at which
detainees in the global war on terrorism are or have been held.
Section 314 sets forth required elements of this report: the
location and size of each such prison or facility, its
disposition if no longer operated by the United States
Government, plans for the ultimate disposition of detainees
currently held, a description of interrogation procedures used
or formerly used, and whether those procedures are or were in
compliance with United States obligations under the Geneva
Conventions and the Convention Against Torture. The classified
report is to be submitted no later than 60 days after enactment
of this Act.
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 failures--
particularly related to pre-war intelligence assessments on
Iraq--have demonstrated the importance of rebuilding
andimproving 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 other 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 2007, H.R. 5020 (109th Cong., 2d Sess.),
contains a provision (Section 403) that further expounds on the
role of the Director of Science and Technology. Section 403 in
H.R. 5020 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 403 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 403 of H.R. 5020.
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 with 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)). Section 407 shall apply with
respect to any appointment of an individual to serve as CIO of
the Intelligence Community that is made on or after the date of
enactment of this Act.
The CIO of the Intelligence Community has reorganized his
office to reflect his legislative responsibilities. The
reorganized office consists of the following units: (1)
Intelligence Community Governance; (2) Intelligence Community
Enterprise Architecture; (3) Information Sharing and Customer
Outreach; (4) Intelligence Community Information Technology
Management; and (4) Enterprise Services. The CIO of the
Intelligence Community has also established a CIO Council that
is composed of program managers from several key Intelligence
Community elements. The CIO of the Intelligence Community also
plans onestablishing a ``board of governors'' consisting of
officials from the various agencies who will work together to resolve
issues.
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.
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 and has granted
the Inspector General certain authorities pursuant to Director
of National Intelligence Instruction No. 2005-10 (Sept. 7,
2005). The duties, responsibilities, and authorities of the
Inspector General, and his ability to exercise his authorities
across all elements of the Community, remain ambiguous,
however. In H.R. Rep. 109-411 (April 6, 2006) (report of the
Permanent Select Committee on Intelligence of the House of
Representatives (HPSCI) to accompany H.R. 5020, the
Intelligence Authorization Act for Fiscal Year 2007), the HPSCI
has also expressed concerns that ``[the Office of the Inspector
General] is currently chartered in a way that does not ensure
the maximum utility of that office to act as a coordinating
organization for all Intelligence Community Inspector Generals
[sic], specifically with regard to keeping the Committee
informed of its activities and findings.''
The problems expressed by the HPSCI report and the concerns
identified in the Committee's oversight must be addressed by an
empowered and effective Inspector General to serve the DNI and
the Intelligence Community. 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 103H of the National Security Act
of 1947, Section 408 of this Act establishes an Inspector
General of 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 such action 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 30 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 of 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. For investigations, inspections, or
audits commenced by an Inspector General of an Intelligence
Community element prior to the enactment of this Act, the
Inspector General of 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 of the
Intelligence Community, who otherwise would have 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 408 includes modifications proposed by the Armed
Services Committee of the Senate during its sequential
consideration of S. 1803, the Intelligence Authorization Act
for Fiscal Year 2006. In addition to technical modifications,
these proposed modifications: (1) removed the authority of the
Inspector General of the Intelligence Community to serve as the
final arbiter of jurisdictional disputes among Intelligence
Community Inspectors General; (2) exempted initial
investigations, inspections, or audits of the DoD Inspector
General, or any other Inspectors General within the DoD, from
the authority of the Inspector General of the Intelligence
Community to conduct a subsequent investigation, inspection, or
audit of the same matter if the initial investigation,
inspection, or audit was deemed deficient; and (3) deleted a
requirement that Intelligence Community Inspectors General must
comply fully with requests for information or assistance from
the Inspector General of the Intelligence Community. Compare S.
1803, Section 408, as reported by the Committee (S. Rep. 109-
142 (Sept. 29, 2005) (adding proposed subsection (g)(1),
(g)(3), and (h)(3)(C) of new Section 103H of the National
Security Act of 1947)) with S. 1803, Section 408, as reported
by the Armed Services Committee (S. Rep. 109-173 (Oct. 27,
2005) (modifying proposed subsection (g)(1), (g)(3), and
(h)(3)(C))).
Section 409. Leadership and location of certain offices and officials
Section 409 expressly establishes four new officers within
the Office of the DNI: (1) the CIO of the Intelligence
Community; (2) the Inspector General of the Intelligence
Community; (3) the Director of the National Counterterrorism
Center; and (4) the Director of the National Counter
Proliferation Center (NCPC). It also provides that the DNI
shall appoint the Director of the NCPC.
The establishment of a Director of the NCPC is consistent
with Section 1022 of the Intelligence Reform Act. Section 1022
added a new Section 119A of the National Security Act of 1947,
which provides that the President shall establish an NCPC.
Under the Act, the NCPC has seven missions and objectives and
should serve as the primary organization within the United
States government for analyzing and integrating 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 Directorof 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 represented an important first
step in the establishment of the NCPC.
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. National Space Intelligence Center
The United States maintains a very large investment in
satellites, and this investment has grown dramatically in
recent years. These satellites serve the commercial and
national security needs of the nation. As such, a loss of any
or all of these assets could do tremendous harm to our economy
and security.
At the same time, our investment in intelligence collection
concerning threats to our interests in space has declined
markedly as a function of our overall investment in space
systems. Despite this significant investment, some estimates
indicate that we commit only 10 percent of what we did nearly
25 years ago to the analysis of threats to space systems.
Recent international events have only served to highlight this
problem.
In an effort to better understand the future threats to our
space assets, as well as potential threats to the United States
from space, Section 410 establishes a National Space
Intelligence Center (NSIC). It is not the intent of the
Committee that the NSIC be a physical consolidation of existing
intelligence entities with responsibilities for various types
of intelligence related to space. Rather, the Committee
believes that the first function of the NSIC is to coordinate
all collection, analysis, and dissemination of intelligence
related to space, as well as participate in Intelligence
Community analyses of requirements for space systems. The NSIC
augments the existing efforts of the National Air and Space
Intelligence Center (NASIC) and Missile and Space Intelligence
Center (MSIC); it is not designed to replace them. Indeed, the
Committee intends that the NSIC work closely with NASIC and
MSIC to ensure a coordinated Intelligence Community response to
issues that intersect the responsibilities of all three
organizations.
The Director of the NSIC shall be the National Intelligence
Officer for Science and Technology, and the Committee
encourages the appointment of an Executive Director from the
Senior Intelligence Service. Further details related to the
mission of the NSIC can be found in the Classified Annex
accompanying this Act.
Section 411. Operational files in the Office of the Director of
National Intelligence
Section 411 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), the National Reconnaissance
Office (NRO), and the Defense Intelligence Agency (DIA). 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).
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 411 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 annual request to the Committee for
legislative authorities during the fiscal year 2006 legislative
cycle, the Office of the DNI asked for a broader exemption from
the FOIA than currently provided in Section 411. 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 CIO 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 five decennial reviews which now occur at
different times.
Section 412. Eligibility for incentive awards of personnel assigned to
the Office of the Director of National Intelligence
Section 412 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 412 also
makes other technical and stylistic amendments and strikes a
subsection of the law that applied only during fiscal year
1987.
Section 413. Repeal of certain authorities relating to the Office of
the National Counterintelligence Executive
Section 413 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 414. 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 414 amends
the FACA to extend this exemption to those advisory committees
established or used by the Office of the DNI.
Section 415. Membership of the Director of National Intelligence on the
Transportation Security Oversight Board
Section 415 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, or the Director of
the CIA's designee.
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.
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 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
Committeerecommends 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, the
Committee recognizes the important role played by the Associate
Director of the CIA for Military Support and continues to support the
appointment of a current military officer to that position.
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.
Given the nomination by the President of General Michael V.
Hayden to serve as Director of the CIA, and this Committee's
favorable reporting of that nomination to the full Senate, the
Committee has included a provision that will make the
requirement that the Director of the CIA be appointed ``from
civilian life'' applicable to the nomination of the successor
to the Director of the CIA in office on the date of enactment
of this Act.
With respect to the Deputy Director of the CIA, the
Committee has also included a provision that will make the
nomination and confirmation requirements of Section 421
applicable to the successor to the individual administratively
performing the duties of the Deputy Director of the CIA on the
date of enactment of this Act. 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 an officer serving as the Director or Deputy
Director of the CIA from undue military influence, Section 421
provides that so long as the individual continues to perform
the duties of the Director or 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.
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 the
National Security Act, as added by the Intelligence Reform Act,
Congress transferred this DCI authority to the DNI.
In the DNI's annual request to the Committee for
legislative authorities during the fiscal year 2006 legislative
cycle, the DNI asked that a provision similar to Section 422 be
enacted to supplement the 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 in the CIA's Directorate of Intelligence
(DI) or Directorate of Operations (DO) (now the National
Clandestine Service) 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. Section 423 also updates an outdated
reference to the DO, now the ``National Clandestine Service.''
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
National Clandestine Service officers.
Section 424. Additional functions and authorities for protective
personnel of the Central Intelligence Agency
Section 424 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 424 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 certain
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 424 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 425. Director of National Intelligence report on retirement
benefits for former employees of Air America
Section 425 provides for a report by the DNI on the
advisability of providing federal retirement benefits to United
States citizens who were employees of Air America or an
associated company prior to 1977, during the time that the
company was owned or controlled by the United States and
operated by the CIA. There are bills in the Senate and House
(S. 651 and H.R. 1276) that would provide federal retirement
benefits for those employees. By including Section 425 in this
authorization bill, the Committee takes no position on the
merits of that legislation. The sole purpose of Section 425 is
to direct the DNI to undertake a study about Air America, its
relationship to the CIA, the missions it performed, and
casualties its employees suffered, as well as the retirement
benefits that had been contracted for, or promised to, the
employees and what they received. The DNI shall make
recommendations on the advisability of legislative action and
include any views that the Director of the CIA may have on the
matters covered by the report. On the request of the DNI, the
Comptroller General shall assist in the preparation of the
report in a manner consistent with the protection of classified
information.
Subtitle C--Defense Intelligence Components
Section 431. 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 431 amends Section 16(d) of the NSA Act of 1959 to
clarify that ``termination of employment'' includes situations
in which 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 431 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
clandestine 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 intelligenceactivities 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 432. Codification of authorities of National Security Agency
protective personnel
Section 432 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 424 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
424. 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 433. 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 the government are conducted as
efficiently and effectively as possible.
The Inspectors General of the CIA and the 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 433 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 433
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 exercised rarely
by the DNI or the Secretary of Defense.
Section 434. 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 the 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 434 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 434 does not alter
the role of the Committee on Armed Services in reviewing and
approving the promotion or assignment of military officers.
Section 434(b) provides that the amendments made by Section
434 apply prospectively. Therefore, the Directors of NSA, NGA,
and NRO as of the date of the enactment of this Act will not be
affected by the amendments, which will apply initially to the
appointment and confirmation of their successors.
Section 435. Clarification of national security missions of National
Geospatial-Intelligence Agency for analysis and dissemination
of certain intelligence information
The National Imagery and Mapping Agency Act of 1996 (Pub.
L. No. 104-201 (Sept. 23, 1996) (NIMA Act)) formally merged the
imagery analysis and mapping efforts of the DoD and the CIA. In
the NIMA Act, Congress cited a need ``to provide a single
agency focus for the growing number and diverse types of
customers for imagery and geospatial information resources
within the Government * * * to harness, leverage, and focus
rapid technological developments to serve the imagery, imagery
intelligence, and geospatial information customers.'' See
Section 1102(1) of the NIMA Act. Since then, there have been
rapid developments in airborne and commercial imagery
platforms, new imagery and geospatial phenomenology, full
motion video, and geospatial analysis tools.
Section 921 of the National Defense Authorization Act for
Fiscal Year 2004 (Pub. L. No. 108-136 (Nov. 24, 2003)) changed
the name of the National Imagery and Mapping Agency to the
National Geospatial-Intelligence Agency. The name change was
intended to introduce the term ``geospatial intelligence'' to
better describe the unified activities of the NGA related to
the ``analysis and visual representation of characteristics of
the earth and activity on its surface.'' See S. Rep 108-46 (May
13, 2003) (accompanying The National Defense Authorization Act
for Fiscal Year 2004, S. 1050, 108th Cong., 1st Sess.).
Though the NGA has made significant progress toward
unifying the traditional imagery analysis and mapping missions
of the CIA and the DoD, it has been slow to embrace other
facets of ``geospatial intelligence'' that have recently been
enabled by advances in technology, including the processing,
storage, and dissemination of full motion video (FMV) and
ground-based photography. The NGA's current library of
geospatial products reflects its heritage--predominantly
overhead imagery and mapping products. While the NGA is
beginning to incorporate more airborne and commercial imagery,
its products are nearly devoid of FMV and ground-based
photography.
The Committee believes that these new products (including
FMV and ground-based photography) should be included, with
available positional data, in NGA libraries for retrieval on
DoD and Intelligence Community networks. Current mission
planners and military personnel are well-served with
traditional imagery products and maps, but FMV of the route to
and from a facility or photographs of what a facility would
look like to a foot soldier--rather than from an aircraft--
would be of immense value to our military personnel and
intelligence officers. Ground-based photography is amply
available from open sources, as well as other government
sources such as military units, U.S. embassy personnel, Defense
AttachEs, Special Operations Forces, foreign allies, and
clandestine officers. These products should be better
incorporated into NGA data libraries.
To address these concerns, Section 435 adds an additional
national security mission to the responsibilities of the NGA.
To fulfill this new mission, the NGA would be required, as
directed by the DNI, to ``analyze, disseminate, and incorporate
into the National System forGeospatial-Intelligence,
likenesses, videos, or presentations produced by ground-based
platforms, including handheld or clandestine photography taken by or on
behalf of human intelligence collection organizations or available as
open-source information.'' Section 435 also makes clear that this new
responsibility ``does not include the authority to manage or direct the
tasking of, set requirements and priorities for, set technical
requirements related to, or modify any classification or dissemination
limitations related to the collection of, handheld or clandestine
photography taken by or on behalf or human intelligence collection
organizations.'' Although Section 435 does not give the NGA direct
authority to set technical requirements for the collection of
``handheld or clandestine photography,'' the Committee encourages the
NGA to engage Intelligence Community partners on these technical
requirements to ensure that their output can be incorporated into the
National System for Geospatial-Intelligence.
Section 435 does not modify the definition of ``imagery''
found in Section 467(2)(A) of Title 10, United States Code, or
alter any of the existing national security missions of the
NGA. Section 435 stresses the merits of FMV and ground-based
photography and clarifies that the NIMA Act's exclusion of
``handheld or clandestine photography taken by or on behalf of
human intelligence organizations'' from the definition of
``imagery'' does not prevent the exploitation, dissemination,
and archiving of that photography. In other words, the NGA
would still not dictate how human intelligence agencies collect
ground-based photography, have authority to modify the
classification or dissemination limitations applicable to such
photography, or manage collection requirements for such
photography. Rather, the NGA should simply avail itself of this
photography, regardless of the source, but within the security
handling guidelines consistent with the photography's
classification as determined by the collecting organization.
Section 436. Security clearances in the National Geospatial-
Intelligence Agency
Although the NSA and the NGA have much in common as
technical 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 on the Defense
Security Service (DSS) or the Office of Personnel Management
(OPM) 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 NSA
and the NGA processing times for contractors in the first
quarter of fiscal year 2006 showed that this significant
discrepancy is continuing. Moreover, the ability of the DSS to
mitigate the problem suffered a setback on April 25, 2006, when
the DSS temporarily suspended its acceptance of new contractor
security clearance applications.
The NGA's long backlog for contractor clearances is
deleterious for both the agency and the contractors that
support it. For the 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 DNI to follow closely the
progress made by the NGA in reducing processing times and to
monitor the variation between the processing times of other
intelligence agencies with similar requirements. The Committee
anticipates that the arrangement created by Section 436 will be
a temporary measure, pending the consistent attainment of
reduced processing times by the OPM, the DIA, and the DSS.
Subtitle D--Other Elements
Section 441. Foreign language incentive for certain non-special agent
employees of the Federal Bureau of Investigation
Section 441 authorizes the Director of the Federal Bureau
of Investigation (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 442. Authority to secure services by contract for the Bureau of
Intelligence and Research of the Department of State
Section 442 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
seekneeded training). Personal services contractors, particularly those
with previous INR experience, would also be valuable to train and
mentor new INR personnel.
Section 443. Clarification of inclusion of Coast Guard and Drug
Enforcement Administration as elements of the Intelligence
Community
Section 443 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 443 also codifies the joint decision of the DNI and
Attorney General to designate an office within the Drug
Enforcement Administration as an element of the Intelligence
Community.
Section 444. Clarifying amendments relating to Section 105 of the
Intelligence Authorization Act for Fiscal Year 2004
Section 444 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
budget for the Military Intelligence Program (MIP), the
successor program of the Joint Military Intelligence Program
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 MIP funds.
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 amendments to Title 10, United States Code,
arising from enactment of the Intelligence Reform and Terrorism
Prevention Act of 2004
Section 504 corrects a number of inadvertent technical
errors in Title 10, United States Code, arising from enactment
of the Intelligence Reform Act.
Section 505. Technical amendment to the Central Intelligence Agency Act
of 1949
Section 505 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 506. Technical amendments relating to the multiyear National
Intelligence Program
Section 506 updates the ``multiyear national foreign
intelligence program'' provision to incorporate and reflect
organizational and nomenclature changes made by the
Intelligence Reform Act.
Section 507. Technical amendments to the Executive Schedule
Section 507 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 507 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 508. Technical amendments relating to redesignation of the
National Imagery and Mapping Agency as the National Geospatial-
Intelligence Agency
Section 508 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
theNGA, 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 COMMENTS
Information access: ``Data-level'' information
Since September 11, 2001, information sharing at the level
of finished intelligence reporting has improved greatly within
the Intelligence Community. Intelligence Community officers are
sensitized to the need to notify others whenever potentially
significant information comes to their attention.
Communications and liaison among agencies are also much
improved.
Despite these much needed advances, the Committee is
concerned that information access at the ``raw'' or ``data
level''--where information has not yet been evaluated or
minimized to protect U.S. person information--continues to lag
behind Committee expectations. This ``raw'' or ``data-level''
information includes everything from ``raw'' intelligence
(e.g., operational details in a human intelligence report) to
partly processed and analyzed information (e.g., metadata,
stored text, stored cable traffic, translated and transcribed
audio files). ``Connecting the dots'' is only possible if
appropriately cleared analysts, with a ``need-to-know,'' have
access to those ``dots.'' Finished reporting often fails to
contain all information relevant to a particular topic or issue
of importance to an analyst or collection officer. These
oversights are not surprising; the perspective of a reports
officer is often quite different than that of an analyst or
collection officer who may be interested in different pieces of
information relevant to their target. In other words, data that
may seem insignificant or unimportant to a reports officer may
fill in a missing puzzle piece for an analyst or expose a
critical weakness for a collection officer to exploit. For that
reason, this Committee has continued to support greater ``raw''
or ``data-level'' access.
Agencies and organizations often resist providing access to
``raw'' or ``data-level'' information on security or privacy
grounds--concerns that are significantly mitigated when those
with access are appropriately cleared, have an established
``need-to-know,'' and are bound by control mechanisms to ensure
appropriate protections for security and privacy. The Committee
has also found, however, that a misplaced sense of
``ownership'' by the collecting agency often inhibits
information access programs.
To begin addressing concerns with ``data-level'' access,
Section 317 of the Intelligence Authorization Act for Fiscal
Year 2004 (Pub. L. No. 108-177 (Dec. 13, 2003)) mandated that
the DCI and Secretary of Defense establish a pilot program to
assess the ``feasibility and advisability of permitting
intelligence analysts of various elements of the intelligence
community to access and analyze intelligence from the databases
of other elements of the intelligence community.'' To implement
this provision, a pilot program was established that granted
the DIA Joint Intelligence Task Force--Combating Terrorism
(JITF-CT) access to signals intelligence information in NSA
databases. The NSA/DIA pilot program ran for approximately one
year, ending in February 2005. According to reports from both
agencies, the pilot successfully established the value of
sharing ``data-level'' information, the feasibility of non-NSA
analysts gaining access to ``raw'' signals intelligence, and
the means and procedures necessary to protect privacy in the
process.
Although the database access and liaison relationships
formed during the pilot program have been sustained at NSA and
DIA, the Committee is concerned that database access has not
been expanded, despite an ardent desire on the part of the
JITF-CT. The Committee is also concerned that negotiations on a
Memorandum of Agreement (MOA) designed to extend NSA database
access to other DIA analysts outside of the JITF-CT have not
been completed, despite a year of negotiations on the topic.
The Committee directs the NSA and the DIA to complete
negotiations on the MOA by the end of August 2006. The
Committee strongly encourages the direct involvement of the
Office of the DNI in these negotiations. If disputes cannot be
resolved by the NSA and the DIA directly, the DNI must exercise
his responsibility ``to ensure maximum availability of and
access to intelligence information within the intelligence
community.'' See Section 102A(g) of the National Security Act
of 1947 (50 U.S.C. 403-1(g)). If the MOA is not finished by
this deadline, the Committee will seek stronger measures in
conference with the House on the Intelligence Authorization Act
for Fiscal Year 2007 to ensure timely completion.
Once completed, this MOA should be posted on Intelink, and
the NSA and DIA should also post a generic set of procedures,
derived from the MOA and their experience with the pilot
program, to inform other interested intelligence organizations
of the requirements for access to NSA and DIA data. The DNI
should establish a process for reviewing and approving access
to other Intelligence Community databases based on the model
provided by the NSA/DIA MOA. If other Intelligence Community
elements have a demonstrated need for access to information,
they should work with the DNI, or his designee within the
Office of the DNI, to draft similar information access MOAs.
The DNI should process all requests for database access and, in
a timely manner, inform requesting organizations of the
decision of the Office of the DNI, provide an explanation of
the bases for any rejections, and establish a mechanism to
appeal access denials.
Finally, the Committee directs the CIO of the Intelligence
Community, the Deputy Director of National Intelligence for
Analysis, the Deputy Director of National Intelligence for
Customer Outcomes, and the Program Manager for the Information
Sharing Environment to carefully examine proposals to
standardize interfaces among NSA legacy databases. These
databases were typically designed with a unique interface.
These unique interfaces have inhibited the development and
application of advanced analytic tools at the NSA. If a
standard interface can be developed and advanced analytic tools
made available to NSA analysts, these same analytic tools can
be made available to other Intelligence Community elements with
a demonstrated need to access NSA ``data-level'' information. A
standardized approach to database interface could also be
applied to other Intelligence Community databases. Properly
designed and implemented, this technology could allow cross-
agency ``federated queries,'' broader database access for
analysts, and much greater ease of access to important
intelligence information.
Information access: Communities of interest
The NSA/DIA pilot program on information sharing--and other
information access activities throughout the Intelligence
Community--introduced an additional concept to help support
information access: sharing information freely among analysts
from different agencies and disciplines who are assigned to a
common mission, which establishes their ``need to know'' and
forms the basis for close collaboration, virtually or through
physical co-location. For ease of reference, this concept can
be summarized as full and equal access within a ``community of
interest.'' This ``community of interest'' would operate by
providing ``raw'' or ``data-level'' access to intelligence
analysts and collection managers working on common missions
across agencies and disciplines and by co-locating these
analysts and collectors. Experts in single disciplines would
help all-source analysts and collection managers understand and
interpret the information they access.
Evaluation of the NSA/DIA pilot program led DIA to conclude
that there would be tremendous value in organizing
``communities of interest'' with equal access to all relevant
data ``at the first point of usability.'' Having experts on
hand from each discipline would help all-source analysts better
understand the information provided by the collection agencies,
and all-source analysts would help the analysts from the
collection agencies understand context and requirements.
The Committee strongly encourages the creation of
``communities of interest'' organized in this way. These
``communities of interest'' would not be a substitute for broad
information access programs, but a mechanism for deriving the
full benefit from such programs. The Committee directs the DNI,
in collaboration with the Directors of NSA, CIA, DIA, and NGA,
to develop a pilot program to permit all-source analysts from
across the Intelligence Community to work directly with experts
from the intelligence collection disciplines (human, signal,
imagery, and open source intelligence). The pilot program
should be conducted on a non-terrorism related, high-priority
intelligence target. The collaboration can be achieved by co-
location or by virtual collaboration. The assigned analysts
should have common access to all data relevant to the
designated target from across the collection disciplines. The
pilot program should be initiated by January 1, 2007, and
should continue for at least one year. Following completion of
the pilot program, the DNI should report back to the
intelligence committees concerning any findings or
recommendations relevant to the pilot program, including any
recommendations for further legislation or funding to further
promote information access.
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 non-official cover operations
The Committee remains concerned that the CIA has not yet
fully addressed concerns about the use of non-official cover
(NOC): operational security for NOC officers, support for NOC
operations, and the extent to which the National Clandestine
Service is committed to doing what is needed to ensure that NOC
operations are successful. The Committee is also concerned with
the training and use of NOC officer candidates and the overuse
of certain NOC cover vehicles, at the expense of investing time
and resources in creating new and innovative methodologies.
The Committee therefore directs that the CIA provide a
classified report by December 31, 2006, providing details on
the status of their non-official operations initiatives,
including the use of NOC officers and non-official platforms;
steps taken by the CIA to ensure operational security for NOC
officers; an assessment of the emerging threats posed by
technological developments to NOC operations; and the steps
that the CIA has taken to expand the non-official methodologies
available for operational use. The report should also highlight
areas that need improvement and offer recommendations for any
legislative or resource initiatives that would enhance human
intelligence collection and covert action through the use of
NOC operations.
Intelligence Community personnel growth
Shortly after September 11, 2001, the Intelligence
Community began an aggressive campaign to recruit and hire both
government and contractor personnel to support the war on
terrorism. According to the Administration's current
projections, the number of Intelligence Community personnel
will continue to increase at a steady pace over the next
several years. In February 2005, the Committee initiated an
audit to examine the full scope of activities and resources
necessary to support the Administration's proposed personnel
growth, as well as the underlying requirements and projected
mission impact. The results of the audit indicate that the
Intelligence Community faces significant challenges
implementing the proposed growth.
The Committee is concerned that the up-front processes
necessary to support personnel growth, including recruiting,
screening, hiring, and training programs are already
overburdened and that additional new employees could cripple
the system. As more seasoned employees retire and new employees
enter the workforce, the Intelligence Community will also face
significant challenges finding sufficiently experienced
officers to mentor and manage these new hires. Even at current
personnel levels, the Intelligence Community has indicated that
it lacks adequate secure space for cleared employees. Despite
proposed growth, the Intelligence Community has been unable to
quantify the facility requirements associated with new hires.
Despite the plainly obvious lack of preparedness, the
Intelligence Community continues to implement the hiring
process associated with the proposed growth.
The Committee is also concerned that the full scope of the
proposed personnel growth is ill defined. There are no specific
documented requirements for the additional personnel. Indeed,
the generic ``more is better'' argument appears to be the
driving force behind the proposals. The Intelligence Community
also cannot quantify future contractor requirements and is
unable to determine whether the number of contractors will
increase or decrease as more personnel are hired. The Committee
has seen no metrics that would link the additional proposed
personnel to improvements in the Intelligence Community's
ability to detect, predict, analyze, and counter current and
future threats to the United States.
Given the identified deficiencies associated with the
proposed personnel growth and the significant funding problems
already facing the Intelligence Community, the Committee is
concerned that the Administration's proposal may not be
achievable. Due to the significant funding requirements
projected from fiscal year 2007 through fiscal year 2011, the
proposed personnel growth will rival, if not surpass, the costs
associated with a major system acquisition. As with any other
major and costly acquisition program, the Intelligence
Community must take immediate steps to define the mission
needs, relate those mission needs to specific, validated
requirements, and provide detailed plans for funding the
proposed growth. To address the aforementioned concerns, the
Committee is fencing funds related to such growth and directs
the DNI to provide a comprehensive personnel growth strategy,
as outlined in the classified annex.
Intelligence Community document and media exploitation audit
The Committee, through its Audit and Evaluation Staff, is
currently reviewing the Intelligence Community's document and
media exploitation (DOCEX) activities. The Committee is
concerned that current DOCEX activities are uncoordinated and
that too many disparate efforts exist, with little transparency
among Intelligence Community elements. The Committee is
encouraged by the broader role for the National Media
Exploitation Center (NMEC) outlined in a December 2005 letter
from the PDDNI to the Director of the DIA concerning
Intelligence Community centers. Indeed, the Committee believes
that the NMEC should serve to integrate all of the Intelligence
Community's DOCEX elements, not merely those of the DIA.
Without Intelligence Community-wide leadership on this issue,
there will be unnecessary duplication of effort and
insufficient access to information obtained by, or through,
DOCEX activities.
The Committee is also concerned about several funding
issues. Funding for DOCEX activities currently resides in
several different budget accounts. This segregation makes it
exceedingly difficult to assess aggregate Intelligence
Community DOCEX expenditures and to coordinate Intelligence
Community investment strategies. There also appears to be
significant redundancy in the funding of translation tools,
technology, and research and development initiatives.
Intelligence Community elements have also failed to leverage
existing technology and translation capabilities to improve
DOCEX activities. Based on these redundant capabilities and
inability to leverage existing capabilities, the Intelligence
Community appears to be funding duplicative technology
development efforts.
The Committee believes that current efforts to provide
access to information derived by, or through, DOCEX activities
are inadequate. Unless this information is readily accessible
to the intelligence collectors and analysts who need it, these
DOCEX efforts will be largely fruitless. For example, the
HARMONY database is intended to be the Intelligence Community's
centralized national repository for foreign military,
technical, and open-source documents, including documents and
media captured or collected to support the global war on
terrorism and Operation Iraqi Freedom. While HARMONY is
accessible to most intelligence officers, it is not widely used
outside the DoD. Moreover, some Intelligence Community elements
maintain their own, separate DOCEX databases, limiting access
to only employees of that element. The Committee also notes,
with concern, that a significant amount of intelligence
information from documents and media is never posted to HARMONY
because the Intelligence Community lacks standards for what
constitutes a ``document exploitation'' activity or any common
processes to ensure proper dissemination of the information.
The Committee believes that documents and media that do not
constitute sensitive information should be accessible
throughout the Intelligence Community via a single database
that truly functions as a national repository for DOCEX.
Regardless of the manner in which documents and media are
acquired--whether discovered in a cave in Afghanistan, captured
during a raid in Iraq, or collected through human intelligence
operations--the Committee believes that such information should
be governed by standardized rules for DOCEX and that the
information contained in the documents and media should be
accessible to appropriately cleared officers with a ``need-to-
know.''
To address the identified DOCEX concerns, the Committee
encourages the DNI to appoint a program manager for National
Intelligence Program DOCEX efforts. The DNI should also develop
a national DOCEX strategy. The strategy should include clear
``lanes in the road'' that delineate responsibilities for DOCEX
activities; preclude duplication of effort; institute
Community-wide DOCEX standards and procedures; establish a
single, common DOCEX database; and provide for an aggregate
annual budget for all National Intelligence Program-funded
DOCEX activities. To ensure the expeditious completion of a
national DOCEX strategy, the Committee has fenced DOCEX-related
funds as outlined in the classified annex.
The Committee also believes that the DNI should form a
DOCEX technology investments board to guide and develop a
coordinated, Community-wide research and development strategy.
The DOCEX technology investments board should include
representatives from the offices of the CIO of the Intelligence
Community, the Director of Science and Technology, the Deputy
Director of National Intelligence for Analysis, and
representatives from other DOCEX stakeholders. The Director of
NMEC should chair the board. The board should assist the DNI in
managing investments in DOCEX research and development to
alleviate redundant proposals for future technologies. The
board should also work to ensure existing DOCEX capabilities
are appropriately shared and that redundant capabilities are
eliminated.
With respect to non-National Intelligence Program DOCEX
activities, the DNI must engage the Secretary of Defense to
coordinate and deconflict the activities of the Intelligence
Community and DoD, whether such activities are funded by the
Military Intelligence Program or otherwise. Such coordination
should include coordination of research and development for
technology related to DOCEX activities.
Finally, the Committee is impressed with the language
expertise resident at the Combined Media Processing Center in
Doha, Qatar, and believes that maintaining this capability in
the future could address some of the critical shortages in
language-proficient intelligence officers. The Committee
encourages the DNI to seek ways to retain this vital resource
once the current surge in processing documents from Operation
Iraqi Freedom ceases.
All-source intelligence analysis by the National Geospatial-
Intelligence Agency
The Committee continues to question the NGA's production of
all-source intelligence. The NGA will be challenged in the
foreseeable future to master new geospatial phenomena, to
provide geospatial intelligence support to its growing customer
base, and to exploit the increasing volumes of geospatial data
being collected by airborne and commercial platforms. These are
sufficient challenges for the NGA's analytic cadre without the
diversion of effort to all-source intelligence analysis.
Geospatial intelligence, like signals and human
intelligence, is a singular intelligence discipline which, when
combined with all other sources of information, forms a basis
for all-source intelligence products. The Intelligence
Community already consists of a number of all-source
intelligence elements: the CIA; the DIA; the State Department's
INR; national intelligence centers such as the NCTC and NCPC;
intelligence elements of the Departments of Homeland Security,
Energy, and Treasury; the FBI's National Security Branch; the
armed services' science and technology centers, such as NASIC,
MSIC, and the Office of Naval Intelligence; the Combatant
Command Joint Intelligence Centers; and hundreds of
intelligence staffs in joint task forces, combined task forces,
and tactical units. The NGA is the single entity tasked to
provide geospatial intelligence support to all of these all-
source entities. The NGA should focus on providing geospatial-
intelligence support to these entities rather than duplicating
their all-source analytic missions.
Analysts at the NGA are by no measure simple photographic
interpreters. Their expertise in certain areas is well known.
They should, and do, access all-source information to help
focus their imagery exploitation and to facilitate
collaboration with their Intelligence Community partners. They
should not, however, let that all-source information, or the
tendency to develop independent assessments, influence their
interpretation of imagery signatures, as apparently occurred
during interpretations of otherwise ambiguous signatures at
suspected Iraqi WMD facilities.
The intended consolidation of NGA facilities into a single
campus may have an unintended consequence of encouraging a ``go
it alone'' mentality within the NGA. NGA must avoid the
temptation to develop assessments independent of their all-
source intelligence customers. By permitting ``mission creep''
from geospatial-intelligence analysis to all-source
intelligence analysis, the NGA leadership has failed to heed a
cautionary note sounded in Section 1111(d) of the NIMA Act of
1996, which states, ``In managing the establishment of [the
NIMA], the Secretary of Defense, in consultation with the
Director of Central Intelligence, shall ensure that imagery
intelligence support provided to all-source analysis and
production is in no way degraded or compromised.''
The Committee will remain watchful of this issue and urges
the DNI to provide appropriate guidance to the NGA to ensure
the most efficient use of the NGA's skilled workforce, while
not duplicating all-source intelligence efforts throughout the
Intelligence Community or diluting the geospatial-intelligence
support provided by the NGA to those same entities.
Intelligence Community financial management
The Committee is concerned about the overall lack of sound
financial management within the Intelligence Community. Despite
significant increases in funding for national intelligence
activities over the last five years, the state of the
Intelligence Community's finances has not improved. Funding for
major system acquisitions and major policy initiatives is
realigned each year to compensate for programmatic content in
excess of programmed fiscal resources. The Committee is
concerned that the Intelligence Community has failed to fund
several major system acquisitions to the level identified in
the independent cost estimate applicable to such acquisition.
Indeed, the Committee is concerned that many independent cost
estimates are prepared by the element responsible for the
proposed acquisition, and merely adopted by the Intelligence
Community Cost Analysis and Improvement Group.
In addition to the lack of sound programmatic judgment, the
Committee is concerned that the CIA, NSA, NGA, DIA, NRO, and
the Office of the DNI are unable to produce auditable financial
statements, and are therefore unable to verify to the Committee
how they are spending their appropriated funds. These same
institutions are developing unique, customized financial
management software systems, and the DNI currently does not
have a plan to integrate or consolidate any of these systems.
These problems are compounded by the development of unique
budget formulation systems. Finally, because personnel are
transferred in and out of the financial discipline every two or
three years, the Intelligence Community is unable to retain a
cadre of experienced financial professionals.
To address these issues, the Committee directs the DNI and
the Director of OMB to develop a plan to transform Intelligence
Community financial management. Specifically, the Committee
directs the DNI and Director of OMB to submit a strategic plan
that outlines how the existing systems of CIA, NSA, NGA, DIA,
NRO, and the Office of the DNI will be used, upgraded or
replaced, and subsequently integrated in a single financial
management system. The plan should identify the associated
system acquisitions, deployment schedule, agency roles and
responsibilities, key steps and milestones, resource
requirements (both financial- and personnel-related), and
performance measures. The plan should address all steps
necessary to produce a single, consolidated financial statement
for the National Intelligence Program for fiscal year 2009. The
plan should address the development of a common accounting code
and standard business processes for the Intelligence Community.
The plan should leverage costs already incurred to develop
budget formulation systems, such as IRIS, to ensure that the
financial management and budget formulation systems can
seamlessly integrate data. Finally, the Committee directs the
above mentioned plan to include a comprehensive financial
management human resources policy that outlines how financial
expertise can be strengthened in each Intelligence Community
element. To ensure the expeditious completion of this plan, the
Committee has fenced certain funding as outlined in the
classified annex.
Department of Energy counterintelligence
On March 9, 2006, the Deputy Secretary of Energy approved
the consolidation of the Office of Intelligence and Office of
Counterintelligence under the leadership of the Department's
Senior Intelligence Officer. The name of the new organization
is the Office of Intelligence and Counterintelligence. The
Office of the DNI concurred in the appointment of one
individual to serve as both the Director of the Office of
Intelligence and as the Director of the Office of
Counterintelligence. The Committee did not receive advance
notice of this reorganization, although it appears to have been
a significant anticipated intelligence activity for which the
Committee should have received prior notice in accordance with
Section 502 of the National Security Act (50 U.S.C. 413a).
The Committee recognizes the authority of the Secretary of
the Energy, under current law (42 U.S.C. 7253), to consolidate
organizational units or components within the Department as he
may deem necessary or appropriate. Such reorganization
authority, however, does not ``extend to the abolition of
organizational units or components established by this chapter,
or to the transfer of functions vested by this chapter in any
organizational unit or component.'' See 42 U.S.C. 7253(a). The
Committee considers it an open question whether this
reorganization amounts to a ``transfer of functions'' vested
separately in the Department's Office of Intelligence and
Office of Counterintelligence. Current law arguably requires a
separate Office of Intelligence and Office of
Counterintelligence, each with a director who reports directly
to the Secretary of Energy. See 42 U.S.C. 7144b & 7144c.
Presumably, the Senior Intelligence Officer will assume the
responsibilities for establishing Departmental policy for
counterintelligence programs and activities. If this amounts to
a ``transfer of function'' from the Office of
Counterintelligence or the Office of Intelligence to a new
layer of bureaucracy within the Office of Intelligence and
Counterintelligence, then the Deputy Secretary's consolidation
effort is arguably inconsistent with current law. See 42 U.S.C.
7253.
Another troubling aspect of this reorganization is its
inconsistency with Presidential Decision Directive 61 (PDD-61),
which requires that: (1) the Office of Counterintelligence and
Office of Intelligence be established as two separate
independent offices reporting directly to the Secretary of
Energy; (2) the Director of the Office of Counterintelligence
be a senior executive from the FBI; and (3) the Director of the
Office of Counterintelligence have direct access to the
Secretary of Energy, the DNI, and the Director of the FBI. See
White House Fact Sheet, U.S. Department of energy
Counterintelligence Program Presidential Decision Directive 61.
It is the Committee's understanding that PDD-61 has not been
rescinded. Under the current reorganization, the offices are no
longer separate and independent. Also, the current Senior
Intelligence Officer, who is now serving as both the Director
for the Office of Intelligence and the Office of
Counterintelligence, is not a senior executive from the FBI.
It is uncertain whether the ``synergies'' obtained as a
result of this consolidation will justify the added layer of
bureaucracy. The Committee believes that the policies behind
the current statutes and PDD-61 still strike the right balance
for the Department of Energy (DoE). They provide a mechanism to
ensure that counterintelligence concerns have an independent
advocate within the DoE and to provide the Secretary of Energy
with immediate access to the perspective of a senior FBI
counterintelligence executive with respect to DoE
counterintelligence threats. The Committee is concerned that
the current reorganization effort may undermine these important
policy considerations and constitute a return to past failed
practices. The Committee will continue to monitor this
reorganization effort and expects to be briefed in advance of
further developments.
Support to the Committee on Foreign Investment in the United States
Recent high profile foreign acquisitions of United States
firms have highlighted the important role the Intelligence
Community plays in supporting the government review of these
transactions. The Committee on Foreign Investment in the United
States (CFIUS) relies on various elements of the Intelligence
Community to assess risks associated with any such acquisition.
The Committee understands that the Office of the DNI has taken
steps to better coordinate the preparation of these risk
assessments and other support to CFIUS. The Committee strongly
endorses the DNI's effort.
The Intelligence Community risk assessments must be
conducted and finalized quickly in order to comply with the
short time frames provided under the CFIUS review process. With
the volume of CFIUS filings increasing that pressure is even
greater. The Committee adopted an amendment offered by Senators
Rockefeller and Wyden to the Classified Annex to this Report to
provide additional resources to enable the Office of the DNI to
carry out this mission.
COMMITTEE ACTION
Motion to close
On May 23, 2006, on the motion of Chairman Roberts, the
Committee agreed, by voice vote, 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 bill favorably subject to amendments
On May 23, 2006, on the motion of Senator Bond, 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 Feingold--aye.
Amendments to committee bill
On May 23, 2006, by a vote of 9 ayes and 6 noes, the
Committee agreed to an amendment by Senator Feinstein to modify
certain requirements for notifications to Congress under
Sections 502 and 503 of the National Security Act of 1947 (50
U.S.C. 413a & 413b) and to place an additional limitation on
the availability of funds for intelligence and intelligence-
related activities under Section 504 of the National Security
Act of 1947 (50 U.S.C. 414). See Sections 304 and 307 of the
Act. 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--aye; 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 Feingold--
aye.
On May 23, 2006, by unanimous consent, the Committee agreed
to an amendment by Senator Mikulski requiring the Secretary of
Defense to delegate certain security clearance responsibilities
to the Director of the NGA until December 31, 2007. See Section
436 of the Act.
On May 23, 2006, by a vote of 9 ayes and 6 noes, the
Committee agreed to an amendment by Senator Levin to require a
report by the DNI on compliance by the Intelligence Community
with the Detainee Treatment Act of 2005 (Pub. L. No. 109-148,
Div. A, Title X (Dec. 30, 2005)). See Section 313 of the Act.
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--aye; 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 Feingold--
aye.
On May 23, 2006, by a vote of 9 ayes and 6 noes, the
Committee agreed to an amendment by Senator Wyden to increase
the penalties applicable to certain violations of Section 601
of the National Security Act of 1947 (50 U.S.C. 421), relating
to the unauthorized disclosure of the identity of a covert
agent. See Section 308 of the Act. 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--aye; 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 Feingold--aye.
On May 23, 2006, 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. See Section 108 of the
Act. 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 Feingold--
aye.
On May 23, 2006, by a vote of 9 ayes and 6 noes, the
Committee agreed to an amendment by Senator Levin to require
the DNI to submit a classified, detailed report to the Members
of the intelligence committees concerning each clandestine
prison or detention facility, if any, currently or formerly
operated by the United States Government, regardless of
location, at which detainees in the global war on terrorism are
or have been held. See Section 314 of the Act. 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--aye; 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 Feingold--aye.
On May 23, 2006, by a vote of 9 ayes and 6 noes, the
Committee agreed to an amendment by Senator Wyden to mandate
the public disclosure of the aggregate amount of funding
requested, authorized, and appropriated for the National
Intelligence Program for each fiscal year after fiscal year
2007. See Section 107 of the Act. 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--aye; 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 Feingold--aye.
On May 23, 2006, by a vote of 7 ayes and 8 noes, the
Committee rejected an amendment by Senator Feingold to require
a report on past intelligence activities not previously
notified to all Members serving on the intelligence committees
at the time the activities were undertaken. 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--aye; 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 Feingold--aye.
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 May 25,
2006, 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 SENATORS ROCKEFELLER, LEVIN, FEINSTEIN, WYDEN,
BAYH, MIKULSKI, AND FEINGOLD
Thirty years ago this month, the Senate passed Senate
Resolution 400, establishing the Select Committee on
Intelligence and charging the Committee with providing
``vigilant legislative oversight over the intelligence
activities of the United States to assure that such activities
are in conformity with the Constitution and laws of the United
States.'' The Committee is marking this anniversary by
reporting legislation that takes significant steps toward
reinvigorating our oversight responsibilities.
Current practice limits some Executive Branch briefings
about major intelligence programs to the so-called ``Gang of
Eight,'' which consists of the four House and Senate leaders
and the two chairmen and two senior minority party members of
each intelligence committee. This limitation can hobble efforts
by the full Intelligence Committees to carry out effective
oversight. Sections 304 and 307 of the Committee's bill would
clarify that it is the obligation of the Intelligence Community
to fully and currently inform all members of the congressional
intelligence committees about intelligence activities.
Effective oversight also depends on members of Congress
having timely access to intelligence information. But 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 carry out our oversight
responsibilities. Section 108 of the Committee bill requires
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 existing intelligence assessments, reports,
estimates, legal opinions, or other intelligence information.
The Committee's bill not only takes important steps toward
improving oversight generally, but advances our oversight of
particular matters. Section 313 of the Committee's bill
requires a report from the Director of National Intelligence
relative to the requirement of the Detainee Treatment Act of
2005, also known as the McCain Amendment, that no person in the
custody or under the physical control of the United States
shall be subject to cruel, inhuman, or degrading treatment.
While the report itself will be classified, this provision
requiring the DNI report to the Congress on compliance with the
McCain Amendment is publicly stated in this bill. Similarly,
Section 314 of the Committee's bill requires the DNI to submit
a classified report on any clandestine detention facilities
operated by the United States Government. These public law
requirements reflect the determination by the Committee to
undertake serious oversight of any Intelligence Community
detention, interrogation, and rendition practices.
In recent years, overly restrictive requests by the
Executive Branch to limit access to sensitive material have
hampered the Committee's ability to conduct effective
oversight. The Committee is calling on the President, the
Director of National Intelligence and the Director of the
National Security Agency to work with the Committee to
establish the mechanisms necessary to review all the
operational, legal and budgetary aspects of the President's
warrantless surveillance program. The Committee is also calling
for greater staff access to information about programs related
to fighting international terrorism, especially in light of the
role of intelligence in this long-term national priority.
In addition, the Committee's bill strengthens oversight by
requiring that the Directors of the National Security Agency,
the National Geospatial-Intelligence Agency, and the National
Reconnaissance Office each be appointed by the President with
the advice and consent of the Senate. These agencies' budgets
comprise a significant portion of the entire intelligence
budget of the United States and it is appropriate that the
President's choices to head these agencies be subject to Senate
confirmation.
The Committee bill also establishes, within the Office of
the DNI, an Inspector General of the Intelligence Community.
The Inspector General will have authorities, including
responsibilities to Congress, that are commensurate with those
of the CIA Inspector General but are applicable across the
Intelligence Community. The creation of an Inspector General of
the Intelligence Community will strengthen accountability
throughout the Intelligence Community by permitting independent
examinations of serious problems, abuses, or deficiencies not
only within elements of the Community, but in any lack of
cooperation among those elements.
Section 107 of the Committee's bill declassifies the
aggregate amount of money requested by the President and
authorized or appropriated by the Congress. The public ought to
know how much money the government is spending on intelligence
activities and the Senate has long sought this sensible reform.
We believe declassifying the aggregate amount of money the
nation spends on intelligence would not harm the nation's
security.
Collectively, the provisions in the Committee bill will
strengthen efforts at Congressional oversight. We look forward
to the leadership's scheduling of the Committee's bill for
floor action as promptly as possible after the Committee on
Armed Services considers the bill, given the imperative that
the Senate not allow another year to pass without enactment of
an intelligence authorization bill. We cannot defeat today's
threats without the strongest and most cost-effective
Intelligence Community, and we believe these enhanced oversight
requirements support both goals.
John D. Rockefeller IV.
Carl Levin.
Dianne Feinstein.
Ron Wyden.
Evan Bayh.
Barbara A. Mikulski.
Russell D. Feingold.
ADDITIONAL VIEWS OF SENATOR FEINGOLD
The Fiscal Year 2007 Intelligence Authorization bill, along
with the accompanying classified annex, is a critically
important piece of legislation. It provides our Intelligence
Community with the resources to combat terrorist organizations,
protect America, and serve American interests overseas. It also
reflects the importance of congressional oversight, a principle
that has been challenged by the current Administration's
failure to keep the congressional intelligence committees fully
and currently informed of all intelligence activities.
Despite the belated briefing conducted for all members of
the Committee on May 17, 2006, the Administration is still
impeding the Committee from conducting thorough, ongoing
oversight of the NSA's illegal warrantless surveillance
program. I was pleased, therefore, that the Committee accepted
my amendment to the classified annex calling on the
Administration to work with the Committee to establish the
mechanisms necessary to review all the operational, legal and
budgetary aspects of the program.
I was also pleased that the Committee accepted my amendment
to the annex calling for greater staff access to programs
related to fighting terrorism. Just as our nation must adopt a
strategic, global approach to this struggle, those responsible
for oversight need to assess whether our policies and
priorities are serving our overall national security interests.
When the Administration seeks to restrict access to important
intelligence programs, it undermines the Committee's ability to
take a comprehensive approach to oversight.
The National Security Act requires that the congressional
intelligence committees be kept fully and currently informed of
all intelligence activities. The law provides for briefings for
less than the full membership of the committees only in cases
of covert action and, even then, only if the President
determines that it is essential to limit access to meet
extraordinary circumstances affecting vital interests of the
United States. Given the Administration's failure to comply
with this law with regard to the warrantless surveillance
program, I strongly support the Committee's actions to further
clarify these legal obligations, and to ensure that the full
committee is at least offered an indication of which
intelligence activities are not briefed to the full membership.
I also believe, however, that the Committee must know the full
extent of how these limited briefings have been conducted in
the recent past. The Administration should inform the members
of the Committee with regard to programs they have not been
notified about so that members can begin to assess whether the
practice of briefing the so-called ``Gang of Eight'' has,
indeed, complied with the law. In addition, an accounting of
previously unknown intelligence activities will allow members
of the Committee to consider the impact of these activities on
current national security policies, as well as learn the
lessons of past successes and failures.
I was pleased that the Committee accepted an amendment to
the annex that I offered, along with Senator Rockefeller,
calling for more intelligence resources to be directed toward
Africa. The continent presents a wide range of threats, such as
terrorist havens and the transnational movements of terrorist
organizations, while corruption, authoritarianism and poverty
allow these conditions to fester. Armed conflict, genocide and
humanitarian disasters are all critical challenges to our
national security, and require greater information and
understanding. Of particular concern is Somalia, where the
Committee encouraged the Intelligence Community to work with
other agencies of the U.S. government on a comprehensive
strategic plan for stability.
I am concerned about sections of the bill containing
temporary modifications to the Privacy Act. While it is
imperative that our intelligence agencies effectively share
information with each other, I am concerned about the removal
of Privacy Act limitations on the ability of intelligence
agencies to obtain information from other government agencies
that are not part of the Intelligence Community. While
circumstances may arise in which intelligence agencies need
access to ordinary government information like student loan
data or government benefits information, the exemption provided
by the bill may be broader than necessary. I am also concerned
that, while the bill appropriately involves the Privacy and
Civil Liberties Board, this important institution is still not
fully up and running.
I am also concerned about broad new arrest authorities
being granted to CIA and NSA protective personnel. These
personnel should be granted all the authority they need to
safeguard those they have been assigned to protect. But the
broad language in the bill effectively authorizes the arrest of
any person committing any crime, even if he or she is in no way
threatening agency personnel or property, as well as persons
who have committed an unrelated felony in the past. Without a
compelling reason why current law is insufficient, I am
reluctant to extend broad new authorities.
Finally, I believe we must reform the financial management
practices of the Intelligence Community to include more
reporting and greater accountability for cost overruns related
to the acquisition of major systems. We can keep America safe
while also serving the U.S. taxpayer. I look forward to working
with my colleagues on important reform legislation.
Russell D. Feingold.
