[Senate Report 110-57]
[From the U.S. Government Printing Office]
110th Congress,
1st Session SENATE Report
110-57
_______________________________________________________________________
REPORT
OF THE
SELECT COMMITTEE ON INTELLIGENCE
UNITED STATES SENATE
COVERING THE PERIOD
JANUARY 4, 2005
TO
DECEMBER 8, 2006
April 26, 2007.--Ordered to be printed
SELECT COMMITTEE ON INTELLIGENCE
JOHN D. ROCKEFELLER IV, West Virginia, Chairman
CHRISTOPHER S. BOND, Missouri, Vice Chairman
DIANNE FEINSTEIN, California JOHN WARNER, Virginia
RON WYDEN, Oregon CHUCK HAGEL, Nebraska
EVAN BAYH, Indiana SAXBY CHAMBLISS, Georgia
BARBARA A. MIKULSKI, Maryland ORRIN HATCH, Utah
RUSSELL D. FEINGOLD, Wisconsin OLYMPIA J. SNOWE, Maine
BILL NELSON, Florida RICHARD BURR, North Carolina
SHELDON WHITEHOUSE, Rhode Island
HARRY REID, Nevada, Ex Officio Member
MITCH McCONNELL, Kentucky, Ex Officio Member
CARL LEVIN, Michigan, Ex Officio Member
JOHN McCAIN, Arizona, Ex Officio Member
Andrew W. Johnson, Staff Director
Louis B. Tucker, Minority Staff Director
Kathleen P. McGhee, Chief Clerk
During the period covered by this report, the composition
of the Select Committee on Intelligence was as follows:
PAT ROBERTS, Kansas, Chairman
JOHN D. ROCKEFELLER IV, West Virginia, Vice Chairman
ORRIN HATCH, Utah CARL LEVIN, Michigan
MIKE DeWINE, Ohio DIANNE FEINSTEIN, California
CHRISTOPHER S. BOND, Missouri RON WYDEN, Oregon
TRENT LOTT, Mississippi EVAN BAYH, Indiana
OLYMPIA J. SNOWE, Maine BARBARA A. MIKULSKI, Maryland
CHUCK HAGEL, Nebraska JON S. CORZINE, New Jersey*
SAXBY CHAMBLISS, Georgia RUSSELL D. FEINGOLD, Wisconsin*
BILL FRIST, Tennessee, Ex Officio Member
HARRY REID, Nevada, Ex Officio Member
JOHN WARNER, Virginia, Ex Officio Member
James D. Hensler, Jr., Staff Director
Andrew W. Johnson, Minority Staff Director
Kathleen P. McGhee, Chief Clerk
----------
* Sen. Corzine resigned from the Senate on January 17, 2006, to take
office as Governor of New Jersey. Sen. Feingold was appointed to fill
this vacancy on the Committee on January 18, 2006.
PREFACE
The Select Committee on Intelligence submits to the Senate
this report on its activities from January 4, 2005 to December
8, 2006. In several places, the Committee will include a brief
reference to actions taken early in the current Congress in
order to make clear the status of a few items from the 109th
Congress.
Under the provisions of Senate Resolution 400 of the 94th
Congress, the Committee is charged with the responsibility of
carrying out oversight of the programs and activities of the
Intelligence Community of the United States. Of necessity, most
of the Committee's work is conducted in secret. Nevertheless,
throughout its history, the Committee has believed that its
activities should be as publicly accountable as possible. It is
in that spirit that we submit this report to the Senate, just
as the Committee has been doing since the year after its
creation in 1976.
We take this opportunity to thank all of the members of the
Committee in the 109th Congress. In particular, we take special
note of those of our colleagues who have completed their
service on the Committee. Senator Pat Roberts was our chairman
from 2003 through 2006, having begun his tenure on the
Committee in 1997. Senator Mike DeWine served on the Committee
from 1995 through 1999, and from 2001 through 2006 and Senator
Jon Corzine served on the Committee from the beginning of the
109th Congress until January 2006 when he left the Senate to
become governor of New Jersey. Also, Senator Carl Levin served
as a full voting member of the Committee from 1997 through
2006. He has completed that portion of his service on the
Committee and is now a nonvoting ex officio member by virtue of
his chairmanship of the Committee on Armed Services. Their
commitment to the work of the Committee and their contribution
to a strong Intelligence Community are appreciated.
We also express our deep gratitude for the work of all
members of the Committee's staff during the 109th Congress.
Their professionalism and dedication were indispensable to the
Committee's efforts to meet its responsibilities.
John D. Rockefeller IV,
Chairman.
Christopher S. Bond,
Vice Chairman.
C O N T E N T S
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Page
Preface.......................................................... iii
I. Introduction......................................................1
II. Legislation.......................................................2
A. Intelligence Authorization Bills for Fiscal Years 2006 and
2007....................................................... 2
B. USA PATRIOT Act Reauthorization and Improvement........... 6
III.Oversight Activities..............................................9
A. Hearings and Briefings.................................... 9
1. Annual Worldwide Threat Overview...................... 9
2. China................................................. 11
3. Counterterrorism...................................... 11
4. Cover Issue........................................... 11
5. India-U.S. Nuclear Cooperation Agreement.............. 12
6. Iraq.................................................. 12
7. Overhead Reconnaissance Architecture.................. 13
8. Department of Treasury Intelligence Program........... 13
B. Committee Inquiries and Reviews........................... 13
1. Phase II of the Inquiry into Prewar Intelligence
Assessments on Iraq.................................... 13
2. Able Danger........................................... 14
C. Financial Accounting, Inspectors General, and Audits...... 15
1. Intelligence Community Compliance with Federal
Financial Accounting Standards......................... 15
2. Oversight of Intelligence Community Inspectors General 17
3. Audits................................................ 17
a. In-Q-Tel.......................................... 17
b. Foreign Intelligence Surveillance Act............. 18
c. Intelligence Community Personnel Growth........... 19
d. Document Exploitation............................. 20
e. Compartmented Program............................. 20
D. Restricted Access Programs................................ 20
1. Detention and Interrogation........................... 21
2. NSA Surveillance...................................... 21
E. Review of Intelligence Related to Iran.................... 22
F. Covert Action............................................. 22
G. Independent Cost Estimates................................ 23
H. Declassification.......................................... 24
1. CIA Accountability Report............................. 24
2. Reports on Prewar Intelligence Regarding Iraq......... 26
3. Iraq WMD Retrospective Series......................... 27
4. National Archives Audit............................... 27
I. Office of the Director of National Intelligence........... 27
IV. Nominations......................................................28
A. John D. Negroponte, Director of National Intelligence..... 29
B. Michael V. Hayden, Principal Deputy Director of National
Intelligence............................................... 29
C. Janice Bradley Gardner, Assistant Secretary of the
Treasury for Intelligence and Analysis..................... 30
D. Benjamin A. Powell, General Counsel, Office of the
Director of National Intelligence.......................... 31
E. John S. Redd, Director, National Counterterrorism Center.. 31
F. Dale W. Meyerrose, Chief Information Officer, Office of
the Director of National Intelligence...................... 32
G. John Rizzo, General Counsel, Central Intelligence Agency.. 32
H. Kenneth Wainstein, Assistant Attorney General, National
Security Division.......................................... 33
I. Michael V. Hayden, Director, Central Intelligence Agency.. 33
J. Randall Fort, Assistant Secretary of State for
Intelligence and Research.................................. 34
V. Support to the Senate............................................34
VI. Appendix.........................................................34
I. INTRODUCTION
Immediately prior to the period covered by this report,
Congress enacted the Intelligence Reform and Terrorism
Prevention Act of 2004, Pub. L. No. 108-458. The Act replaced
the position of Director of Central Intelligence (DCI) with two
positions: the Director of National Intelligence (DNI) and the
Director of the Central Intelligence Agency (CIA). It assigned
to the DNI two of the DCI's functions, namely, serving as head
of the Intelligence Community and acting as principal adviser
to the President for intelligence matters relating to national
security. The CIA Director was given the DCI's other function,
that of serving as head of the Central Intelligence Agency.
With respect to the DNI's responsibility as head of the
Intelligence Community, the Act delineated a range of budget,
personnel, tasking, and other authorities. To assist in
carrying out the duties of the DNI, the Act created an Office
of the Director of National Intelligence (ODNI), to be composed
of various deputies, the National Intelligence Council, and
other offices and officials.
In general, the Act provided that its provisions on
restructuring the Intelligence Community would become effective
no than later six months after enactment, a date that occurred
in mid-June 2005. At the end of March 2005, the Commission on
the Intelligence Capabilities of the United States Regarding
Weapons of Mass Destruction, often referred to by the names of
its Co-Chairmen as the Robb-Silberman Commission, issued its
report, adding to the recommendations to be considered in
implementing the Intelligence Reform Act. Within the six-month
period provided by the Act, it fell to the President to
determine the timetable for transition from old to new, the
lynchpin being appointment of the first DNI. Thus, the period
covered by this 2005-2006 report coincided with the initial
implementation of this major reform of the Intelligence
Community, including the Committee's role in the confirmation
of the DNI and other officers whose appointments under the Act
are subject to the advice and consent of the Senate.
The Committee's work during the period of this report was
also shaped by other enactments or decisions preceding the
period as well as events occurring within it. The USA PATRIOT
Act, enacted in October 2001, included a provision on the
expiration of a number of intelligence investigation
authorities contained in that Act. The sunset meant that
legislative action by December 31, 2005 was required in order
to extend, with changes if warranted, those authorities. The
Committee's own action in February 2004, in establishing,
formalizing, and expanding the Committee's inquiry into
intelligence and the use of it relating to the war in Iraq,
also shaped a significant aspect of its work during 2005-2006.
Additionally, events that followed press reports in
November 2005 about clandestine CIA prisons and in December
2005 about what was called the President's Terrorist
Surveillance Program, as well as the decision of the Supreme
Court in June 2006 on the lawfulness of the military commission
system that had been established by Executive action, each
contributed to the work of the Committee and the Senate during
2005-2006.
These matters, when added to unfolding events concerning
Iraq, Afghanistan and Pakistan, Iran, and North Korea plus the
normal range of legislative and oversight responsibilities,
presented the Committee with a broad range of tasks for the
109th Congress.
II. LEGISLATION
A. Intelligence Authorization Bills for Fiscal Years 2006 and 2007
In the first part of 2005 and then again in 2006, the
Committee conducted its annual review of the President's budget
recommendations for the civilian and military agencies and
departments composing the Intelligence Community. During the
109th Congress, these budget requests were for fiscal year 2006
and fiscal year 2007. They encompassed the National
Intelligence Program, the Joint Military Intelligence Program,
and the Tactical Intelligence and Related Activities programs
of the Department of Defense. The latter two programs were
merged and became the Military Intelligence Program in
September 2005.
The intelligence entities covered by those annual reviews
included the ODNI, the CIA, the Defense Intelligence Agency
(DIA), the National Security Agency (NSA), the National
Geospatial-Intelligence Agency (NGA), the National
Reconnaissance Office (NRO), the intelligence capabilities of
the military services (concerning which the Committee makes
recommendations to the Senate Armed Service Committee), as well
as the intelligence-related components of the Federal Bureau of
Investigation (FBI), the Departments of State, Treasury,
Energy, and Homeland Security, and the Drug Enforcement
Administration.
As part of its review in 2005 and then again in 2006, the
Committee held closed budget hearings at which senior
Intelligence Community officials presented testimony. Members
of the Committee's staff, designated as budget monitors for
particular Intelligence Community elements, also evaluated the
detailed budget justification documents submitted by the
Executive branch both at briefings at the Committee offices and
on site at Intelligence Community agencies. On the basis of
this review, the Committee prepared an annex to its annual bill
and report, one each for fiscal year 2006 and fiscal year 2007.
Each annex contained a classified schedule of authorizations
and classified directions to Intelligence Community elements
that addressed a wide range of issues discerned in the course
of the budget review and other oversight responsibilities of
the Committee.
While this budget review was in progress, the Committee
also reviewed the Administration's proposals for the public
part of the Committee's annual bill, consisting of new or
amended legislative authority requested by the Intelligence
Community, as well as legislative proposals originating in the
Committee and elsewhere in the Senate. From this part of its
work, the Committee produced an original bill and also a public
report for each of fiscal years 2006 and 2007 that both
explained the provisions of the bill and also provided
comments, including directions to the Intelligence Community,
that could be stated in a public, non-classified form.
As a result of this extensive process in 2005 and again in
2006, the Committee reported two Intelligence Authorizations
Acts with accompanying reports and classified annexes-one for
fiscal year 2006 and the second for fiscal year 2007.
On September 29, 2005, the Committee reported S. 1803, the
Intelligence Authorization Act for Fiscal Year 2006. The 2006
bill was sequentially referred, first to the Committee on Armed
Services and then to the Committee on Homeland Security and
Governmental Affairs. It was returned to the Senate Calendar on
November 16, 2005 to await floor action. To facilitate floor
action, the Chairman and Vice Chairman of this Committee
prepared a managers' amendment that accepted the
recommendations of the Armed Services Committee and those of
the leadership of the Homeland Security and Governmental
Affairs Committee, as well as recommendations of individual
members. No Senate floor action occurred, however, on either
the Committee bill or on H.R. 2475, the House-passed
Intelligence Authorization Act for Fiscal Year 2006.
On May 25, 2006, the Committee reported S. 3237, the
Intelligence Authorization Act for Fiscal Year 2007. S. 3237
included many of the legislative provisions that had been in
the proposed 2006 authorization bill, as modified to reflect
the recommendations of the Armed Services and Homeland Security
and Governmental Affairs Committees and individual Senators
that had been incorporated in the proposed managers' amendment
to the 2006 bill. The 2007 bill was sequentially referred to
the Committee on Armed Services, which reported it without
amendment on June 21, 2006. No Senate floor action occurred on
the 2007 bill, which expired on the Senate Calendar at the end
of the 109th Congress together with H.R. 5020, the Intelligence
Authorization Act for Fiscal Year 2007 that had passed the
House on April 26, 2006.
The 109th Congress thus became the first since the 94th
Congress that did not pass an Intelligence Authorization Act.
Fiscal year 2006 became the first since 1978 to not only begin
but also to end without an intelligence authorization. On the
budget side, this meant that all authorizations for
Intelligence Community appropriations were accomplished by stop
gap provisions in the Defense Department Appropriations Acts
(and similar provisions elsewhere) which provided that funds
appropriated by them are deemed to be authorized during the
fiscal year until enactment of the Intelligence Authorization
Act for that year (e.g., Defense Appropriations Act, 2006, Pub.
L. No. 109-148, ( 8092; Defense Appropriations Act, 2007, Pub.
L. No. 109-289, ( 8083).
The effect of the failure to act on an intelligence
authorization is not limited to the authorization of
appropriations. Apart from the rare major restructuring of the
Intelligence Community in the Intelligence Reform and Terrorism
Prevention Act of 2004, for the past nearly 30 years, the
annual intelligence authorization has been the regular means
for adjusting, year-to-year as needs are recognized, the
legislative authorities governing the Intelligence Community.
The last time that occurred was more than two years ago in the
enactment in December 2004 of the Intelligence Authorization
Act for Fiscal Year 2005.
The amendments to the National Security Act of 1947, the
Central Intelligence Agency Act of 1949, the National Security
Agency Act of 1959, and other laws--many of which were
requested by the Intelligence Community--that were contained in
the proposed fiscal year 2006 and 2007 bills are explained in
the two reports that the Committee filed in the 109th Congress
on those authorizations, S. Rep. Nos. 109-142 and 109-259.
The 2006 and 2007 bills included:
Measures to improve information sharing, by
authorizing interagency funding for the benefit of the
Intelligence Community and establishing rules for
sharing of information governed by the Privacy Act.
Establishment of a strong and independent
Inspector General (IG) for the Intelligence Community,
appointed by the President with the advice and consent
of the Senate, to review programs of the Community and
the relationships among the elements of it, and to
report to the DNI and to the Congress.
Creation of a National Space Intelligence
Center 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.
In recognition of the critical
responsibilities of the Director of the NSA, as well as
those of the Directors of the NRO and the NGA, a
requirement that their appointments by the President be
confirmed by the Senate.
Provision for a presidentially-appointed,
Senate-confirmed Deputy Director of the CIA to ensure
that, in the event of a vacancy in the position of the
Director, a Deputy, who has the confidence of the
President and the Congress, is available immediately to
assume the leadership of that critical agency.
Enhanced responsibilities on the protection
of sources and methods of intelligence.
Changes to the procedures requiring the
provision of timely information to the congressional
intelligence committees by the Intelligence Community.
Public accountability through the disclosure
of the overall annual budget request, authorization,
and appropriation for the entire Intelligence
Community.
An increase in the penalties for the
disclosure of the identity of undercover intelligence
officers and agents.
Both annual authorization bills addressed a recurring
question on the applicability of the Freedom of Information Act
(FOIA) to Intelligence Community records: should the
``operationalfiles'' of certain Intelligence Community elements
be exempted from FOIA publication, disclosure, search, and review
requirements? Existing legislation exempts the CIA, NSA, NRO, and NGA
from those obligations. The rationale is to relieve an administrative
burden of searching and reviewing sensitive classes of records that in
the end, most certainly, would not be subject to disclosure under the
FOIA.
In the fiscal year 2006 authorization bill, the Committee
included a provision exempting operational files of the DIA
from the FOIA's publication, disclosure, search, and review
requirements. The exemption became law through the National
Defense Authorization Act for Fiscal Year 2006, Pub. L. No.
109-163. That Act provided that the provision would sunset at
the end of 2007.
In its authorization bills for fiscal years 2006 and 2007,
the Committee included a provision that would grant a limited
operational files exemption to the ODNI, which had sought a
broader exemption. The bills limited the exemption to
information provided to the ODNI from the operational files of
an intelligence community element that had been exempted from
publication, disclosure, search, or review requirements. They
provided that operational files would continue to be subject to
search and review for information about a U.S. citizen or
permanent resident and for information that is the subject of
an investigation by intelligence oversight bodies including the
House and Senate Intelligence Committees.
The Committee's reports accompanying both bills did not
exclude the possibility of a broader exemption but stated that
before acting on that, the DNI, through the Chief Information
Officer, should systematically study and report on the
application of the FOIA to the ODNI. The report should include
the responsibilities assigned by Congress concerning the
operational files exemptions now applicable to Intelligence
Community elements. In both reports, the Committee reminded the
DNI and the intelligence elements that now have exemptions that
the decennial reviews that are required for each must include
consideration of the historical value or other public interest
in categories of files and the potential for declassifying a
significant amount of material in them.
In addition to the issue of FOIA exemptions, the
Committee's intelligence authorization bills and accompanying
reports during the 109th Congress addressed a variety of other
classification issues. In comments in the report on the 2006
bill, the Committee recommended that the DNI review
classification rules and guidelines, and propose standards to
simplify and modernize the classification system. The Committee
also encouraged the President to reduce disincentives to
information sharing, including over-classification.
The Committee's authorization bill for fiscal year 2006
also recommended the authorization of funds for the Public
Interest Declassification Board, and the accompanying report
expressed the Committee's view that funds for the Board should
be included in future budget requests.
One item contained in the 2006 authorization bill that did
not need to be carried over to the 2007 bill was a provision on
establishing a National Security Division in the Department of
Justice to be headed by an Assistant Attorney General for
National Security. By the time that the Committee reported its
2007 bill, the Congress had established the new Division
through a provision of the USA PATRIOT Improvement and
Reauthorization Act of 2005.
As with other legislative and oversight reports filed by
the Committee during the 109th Congress, the reports (including
additional views) on the two Intelligence Authorizations should
be read in full to understand the Committee's proposals.
Notwithstanding reservations on some matters that are evident
in votes in Committee on amendments or were expressed in
additional views, the vote in Committee to favorably report
each of the authorization bills was unanimous.
At the beginning of the 110th Congress, the Committee again
reported, with only minor changes, its authorization bill for
fiscal year 2007: S. 372, the Intelligence Authorization Act
for Fiscal Year 2007; S. Rep. No. 110-2 (2007).
B. USA PATRIOT Act Reauthorization and Improvement
Title II of the USA PATRIOT Act of 2001 (Pub. L. No. 107-
56) enacted a range of enhanced surveillance and other
procedures for law enforcement and intelligence investigations.
Section 224 of the Act established an expiration or sunset
date, December 31, 2005, for sixteen of those provisions.
Section 6001 of the Intelligence Reform and Terrorism
Prevention Act of 2004 provided for another enhanced
surveillance authority--the ``lone wolf'' amendment to the
Foreign Intelligence Surveillance Act (FISA)--that would also
sunset at the end of 2005. That expiration date framed a
principal task for the 109th Congress--namely, to study the
implementation of these enhanced procedures and to enact
legislation to improve and extend them if warranted.
Within the Senate, this Committee and the Committee on the
Judiciary have shared jurisdiction over the FISA--involving, as
it does, both foreign intelligence and judicial matters--ever
since the initial period of 1976 to 1978 when the two
committees worked together to secure its enactment in 1978. In
the 109th Congress, both reported legislation to extend or make
permanent the expiring provisions and also to modify those and
other investigative authorities.
This Committee held three open hearings in April and May
2005, and also a closed hearing, receiving testimony and
statements from a broad range of government and non-government
witnesses. The testimony at the open hearings, and related
materials, are printed as S. Hrg. 109-341.
At its open hearing on April 19, 2005, the Committee heard
testimony from Gregory T. Nojeim, Associate Director and Chief
Legislative Counsel of the American Civil Liberties Union;
James X. Dempsey, Executive Director of the Center for
Democracy and Technology; and Heather MacDonald, Senior Fellow
at the Manhattan Institute for Policy Research. TheCommittee
also placed in the record statements from Bob Barr, former Member of
Congress from Georgia and chairman of Patriots to Restore Checks and
Balances; former Attorney General Edwin Meese III and Paul Rosenzweig,
both from The Heritage Foundation; Professor Orin Kerr of the George
Washington University Law School; and Kate Martin, Director, Center for
National Security Studies. At its second open hearing, on April 27,
2005, the Committee heard testimony from Attorney General Alberto
Gonzales, FBI Director Robert S. Mueller III, and CIA Director Porter
J. Goss.
On May 24, 2005, the Committee held a third open hearing.
Prior to the hearing, the Committee provided to the witnesses a
draft bill that had been prepared by committee counsel for
consideration by the Committee, and asked the witnesses to
comment on it. The witness on the first panel on May 24 was
Valerie Caproni, FBI General Counsel. The witnesses on the
second panel were David S. Kris, a former Associate Deputy
Attorney General; Joseph Onek, Senior Policy Analyst at the
Open Society Institute and Director of the Liberty and Security
Initiative at the Constitution Project (and also a former
Deputy Associate Attorney General); Daniel P. Collins, a former
Associate Deputy Attorney General and Chief Privacy Officer at
the Department of Justice; and James X. Dempsey, Executive
Director of the Center for Law and Technology. The Committee
also placed in the record a letter setting forth the views of
Professor Richard A. Seamon of the University of Idaho College
of Law.
On June 16, 2005, the Committee reported an original bill,
S. 1266, to permanently authorize various provisions of the
PATRIOT Act, clarify certain definitions in the FISA, and
provide additional tools for intelligence investigations. The
bill was accompanied by a report, S. Rep. No. 109-85, with
additional and minority views. The vote to favorably report the
bill was 11 ayes to 4 noes.
The main elements of S. 1266 included:
Permanent authorization for nine
intelligence-related authorities in Title II of the
PATRIOT Act. These included provisions on information
sharing (Section 203), roving wiretaps (Section 206),
pen register and trap and trace authority (Section
214), business records (Section 215), the threshold
test for FISA collection that ``a significant purpose''
is to obtain foreign intelligence information (Section
218), and immunity from damages for communications
providers that provide information, facilities, or
technical assistance in accordance with a court order
(Section 225).
A four-year extension, until December 31,
2009, of the sunset for the ``lone wolf'' provision of
the Intelligence Reform Act of 2004, which expanded the
definition of agent of a foreign power (and therefore
the FISA(s reach) to include surveillance of an
individual who engages in international terrorism or
preparation for it regardless of whether there is a
known connection to an international terrorist group or
other foreign power. This provision applies only to
non-United States persons.
A proposal to amend the definition of
foreign intelligence information in the FISA to include
information for the protection of national security by
use of law enforcement methods such as criminal
prosecution.
An amendment to the business records
provision of Title V of the FISA, as amended by Section
215 of the PATRIOT Act, to provide that the recipient
of an order may disclose to his or her attorney, for
the purpose of obtaining legal advice or assistance,
that the FBI is seeking records. The amendment also
provided for judicial review in the FISA Court of both
the requirement to produce documents and the
prohibition on disclosure that the Government is
seeking information.
A new title of the FISA on national security
mail covers. The mail cover title would provide that,
on request of the FBI, including Special Agents in
Charge of field offices, the Postal Service shall
furnish information relevant to an authorized
investigation to obtain foreign intelligence
information or to protect against international
terrorism or clandestine intelligence activities. The
information would be that on the outside cover of any
mail or a record of the contents of any unsealed mail
as authorized by law.
A new title of the FISA on administrative
subpoenas in national security investigations. The new
title would authorize the Attorney General or
designated officials (including designated Special
Agents in Charge of FBI field offices) to issue
administrative subpoenas. The subpoenas could require
production of any records relevant to an authorized
investigation to obtain foreign intelligence not
concerning a U.S. person or to protect against
international terrorism or clandestine intelligence
activities. The title would provide for judicial
enforcement of the subpoenas as well as judicial review
of them on application by the person or entity that
received one.
Several sets of additional and minority views were filed
and included in the report accompanying S. 1266. These views
explain in greater detail the various viewpoints of the
Committee members and address many of the provisions listed
above as well as amendments that were not adopted by the
Committee.
The Judiciary Committee also reported a bill to reauthorize
the USA PATRIOT Act, S. 1389. After the House passed its
reauthorization act, H.R. 3199, the Senate leadership chose to
act on the bill reported by the Judiciary Committee. That bill
passed the Senate and was the basis for a conference with the
House. This Committee's bill thus remained, until the end of
the Congress, on the Senate Calendar. In recognition of the
Committee's historical and jurisdictional interest in foreign
intelligence surveillance legislation, the Chairman and Vice
Chairman of the Committee were chosen to join the leadership of
the Judiciary Committee as Senate managers at the conference.
Five of the Senate's 10 conferees were members of this
Committee.
On December 8, 2005, the conference committee submitted a
report, H.R. Rep. No. 109-133. The House agreed to the
conference report. After an unsuccessful cloture vote in the
Senate, Congress postponed until February 3, 2006, the
expiration of provisions scheduled to sunset. A second act
extended the sunset until March 10, 2006. On March 1, 2006, the
Senate passed S. 2271, the USA PATRIOT Act Additional
Authorizing Amendments Act of 2006, which resolved three
objections to the conference report. That enabled invocation of
cloture on H.R. 3199 and its passage in the Senate, after which
the House agreed to the additional amendments by passing S.
2271. The two measures were signed by the President on March 9,
2006, as Pub. L. Nos. 109-177 and 109-178.
In sum, the PATRIOT Act reauthorization accomplished a
number of objectives of great interest to the Committee,
including:
Making permanent 14 of the 16 PATRIOT Act
authorities, plus the ``lone wolf'' authority in the
Intelligence Reform Act of 2004.
Extending for four years, until December 31,
2009, the sunset for the remaining two PATRIOT
authorities that had been scheduled to sunset--those
for roving wiretaps under Section 206 of the PATRIOT
Act and for business records orders under Title V of
the FISA, as had been amended by Section 215 of the
PATRIOT Act.
Amending the business records title to
provide that the records sought must be relevant to an
authorized investigation, the application include a
statement of facts showing reasonable grounds to
believe that, the order only require production of
things that could be obtained by a grand jury subpoena
or other court order, and that there be minimization
procedures on the retention and dissemination of
information obtained.
Further amending the FISA business records
title to provide for judicial review on the application
of the recipient of an order to produce documents or
bar disclosure of the receipt of an order, and also
providing for high-level FBI approval and statistical
reporting to Congress on applications for the
production of library, bookseller, tax, firearm sales,
and educational records.
Including amendments regarding national
security letters (NSLs) to provide for judicial
enforcement on application of the Government, or
judicial review at the behest of the recipient, of an
NSL for production of any of the categories of
documents covered by the existing five NSL statutes or
of an order barring disclosure of an NSL.
Requiring two comprehensive audits by the
Department of Justice IG to be completed in two stages
each by the end of 2007. One is on the effectiveness
and use, including any improper or illegal use, of the
investigative authority provided to the FBI under the
business records title of the FISA. The other, with a
similar span, concerns the use of NSLs issued by the
Department of Justice. The first phase of each audit
was completed and submitted to the Congress in March
2007.
Establishing a National Security Division in
the Department of Justice headed by an Assistant
Attorney General for National Security who would serve
as the Department's primary liaison to the DNI. The new
Division brings together the Department's main
intelligence oversight office, the Office of
Intelligence Policy and Review, and its principal users
of intelligence information, the criminal sections
responsible for counterterrorism and counterespionage
prosecutions.
III. OVERSIGHT ACTIVITIES
A. Hearings and Briefings
1. Annual worldwide threat overview
It is the Committee's long-standing practice to begin each
session of the Congress with a hearing to review the
Intelligence Community's assessment of the current and
projected national security threats to the United States. The
hearings in the 109th Congress covered a wide range of issues
and were held in open and closed sessions. The hearings
provided the heads of various all-source analytic agencies an
opportunity to inform the Committee and the American public
about the threats facing the country and the abilities of their
organizations to provide information on and counter such
threats.
On February 16, 2005, the Committee held an open hearing on
the current and projected threats to the United States.
Testifying before the Committee were Porter J. Goss, DCI;
Robert S. Mueller, III, Director of the FBI; Vice Admiral
Lowell E. Jacoby, Director of the DIA; Admiral James Loy,
Deputy Secretary, Department of Homeland Security; and Carol A.
Rodley, Principal Deputy Assistant Secretary of State for
Intelligence and Research. The transcript of the Committee's
February 16, 2005 open hearing, ``Current and Projected
National Security Threats to the United States,'' was printed
and is available to the public as S. Hrg. 109-61 (2005).
Director Goss identified widely dispersed terrorist
networks as one of the most serious challenges to U.S. security
interests at home and abroad. In Iraq, the insurgency remained
a serious threat to creating a stable representative
government. He highlighted continuing proliferation challenges
from North Korea and Iran. North Korea claimed to have made new
nuclear weapons from reprocessed fuel rods previously stored
under International Atomic Energy Agency monitoring at its
Yongbyong reactor and continued to develop, produce, deploy,
and sell ballistic missiles of increasing range and
sophistication. While Britain, Germany, and France were seeking
objective guarantees from Iran that it would not use nuclear
technology for nuclear weapons, Tehran publicly announced that
it would not give up its ability to enrich uranium, and
continued its pursuit of long-range ballistic missiles.
Director Goss also noted that China'smilitary modernization and
military buildup was tilting the balance of power in the Taiwan Strait
and that improved Chinese capabilities threaten U.S. forces in the
region.
On February 2, 2006, the Committee held an open hearing on
the current and projected threats to the United States. This
was the first open threat hearing since the confirmation of the
new DNI and Director John D. Negroponte presented a
consolidated statement on behalf of the Intelligence Community.
He was accompanied by Porter J. Goss, Director of the CIA;
Robert S. Mueller III, Director of the FBI; General Michael V.
Hayden, Principal Deputy DNI; Lieutenant General Michael
Maples, Director of the DIA; Charles E. Allen, Chief
Intelligence Officer, Department of Homeland Security; and
Carol A. Rodley, Acting Assistant Secretary of State for
Intelligence and Research. The record for this hearing has not
yet been printed.
In his February 2006 statement to the Committee, Director
Negroponte explicitly identified terrorism as ``the preeminent
threat to U.S. citizens, Homeland, interests, and friends.'' He
said that al-Qa'ida, ``battered but resourceful,'' remained the
top concern. Al-Qa'ida had inspired other Sunni jihadist
groups, which, though posing less danger to the homeland,
increasingly threatened U.S. allies and interests abroad. He
added that unaffiliated individuals, groups, and cells
represented a different kind of threat, which nonetheless posed
a serious intelligence challenge. The future terrorist
environment would be influenced both by the outcome in Iraq and
in the world-wide debate between Muslim extremists and
moderates. Director Negroponte identified the ongoing
development of dangerous weapons and delivery systems in North
Korea and Iran as the second major threat posed to the nation,
U.S. troops, and U.S. allies.
2. China
The Committee conducted considerable oversight of
intelligence collection and analysis of China in the 109th
Congress. The Committee held an oversight hearing on June 23,
2005 to provide members with assessments of China's military
modernization, as well as to gain an understanding of how the
analytic community assesses intelligence sources and gaps that
may exist in forming their judgments. The Committee was
especially focused on the community-wide organizational
structure for maximizing collection efforts on China. Committee
staff traveled to China, Hong Kong, Taiwan, and Japan to make
independent determinations. Committee staff received regular
briefings from most key collector agencies and groups on China,
including from the ODNI, CIA, DIA, State Department Bureau of
Intelligence and Research, the Office of Naval Intelligence,
NSA, NGA, and FBI, as well as from non-governmental and
academic experts on China.
3. Counterterrorism
The Committee maintained a consistent focus on
counterterrorism issues throughout the 109th Congress. In
addition to open hearings on Worldwide Threats and the Patriot
Act, the Committee held more than two dozen formal briefings on
counterterrorism related topics. The Intelligence Community
regularly provided Committee members with briefings on current
intelligence about terrorist threats to the United States. The
Committee devoted extensive attention to ensuring that the
Intelligence Community received both the resources and
authorization needed to combat violent extremists. For example,
the Committee focused on further developing potent human
intelligence capable of penetrating terrorist networks and
increasing the number of intelligence officers in the field.
The Committee also reviewed the effectiveness of programs
focusing on terrorist finances and communications.
Following the enactment of the Intelligence Reform and
Terrorism Prevention Act of 2004, which included the statutory
authority for the National Counterterrorism Center (NCTC), the
Committee confirmed Vice Admiral Scott Redd to serve as the new
NCTC Director and closely followed the development of the
organization.
Committee oversight of counterterrorism initiatives was not
confined to formal hearings. Committee Members traveled to the
detention facilities in Guantanamo Bay, examined
counterterrorism efforts in Pakistan and Afghanistan, and
devoted extensive attention to Intelligence Community efforts
in Southeast Asia and Africa.
4. Cover issue
Since 1997, when the Committee staff conducted its first
cover audit, the Committee has been concerned about the
Intelligence Community's ability to maintain cover for
clandestine operations. To improve cover, the Intelligence
Authorization Act for Fiscal Year 2005 provided the
Intelligence Community with enhanced cover authority. Official
cover and non-traditional cover of clandestine officers
continue to be challenged by the increased sophistication of
commercial and technological programs. The Committee held
numerous briefings and, in June 2005, held a hearing on cover
issues. The Committee included language in the Classified Annex
to the fiscal year 2006 authorization bill designed to focus
Intelligence Community resources and management attention on
this critical intelligence challenge.
5. India-U.S. Nuclear Cooperation Agreement
On July 18, 2005, President Bush announced that the
Administration would seek to create a new relationship with
India that would allow for cooperation in civil nuclear energy.
India, not a member of the Nuclear Nonproliferation Treaty,
exploded its first nuclear device in 1974 and exploded a device
as recently as 1998. In anticipation of the debate on
legislation to implement the agreement, and in addition to
ongoing oversight of relevant Intelligence Community analysis
of this subject, the Committee held a briefing for members on
March 29, 2006. At that hearing,the National Intelligence
Officer for Weapons of Mass Destruction and Proliferation and the
National Intelligence Officer for Near East and South Asia testified
about the Intelligence Community's analysis of intelligence issues
related to the passage of this change in our bilateral relationship,
and the effect of this change on India's military nuclear program. The
briefing also covered issues related to the current division between
Indian civilian and military nuclear development, understanding Indian
leadership's views of strategic nuclear issues and the effect of this
agreement on that thinking, the effect on this agreement on India's
options to test nuclear devices in the future, and India's record as a
responsible actor in global proliferation.
The Senate passed H.R. 5682, The United States and India
Nuclear Cooperation Promotion Act of 2006 by 85-12 on November
16, 2006, and the President signed the bill into law on
December 18 (Pub. L. 109-401).
6. Iraq
In addition to exhaustive review of prewar Iraq
intelligence as part of the Committee's Phase II investigation,
the Committee conducted regular briefings at the member and
staff levels on current activities in Iraq. The Committee
received testimony from the National Intelligence Officers with
analytic responsibilities for the Near East and Military Issues
and reviewed a large number of reports on conditions and trends
in Iraq. The Committee also had numerous meetings with analysts
and collectors from the Central Intelligence Agency, Defense
Intelligence Agency, State Department Bureau of Intelligence
and Research, military services, and technical collection
agencies concerning their views and activities related to the
ongoing conflict in Iraq. In addition, numerous members of the
Committee visited Iraq throughout the 109th Congress. These
members not only increased their knowledge of the situation in
Iraq but were able to make independent assessments of the
contribution of the Intelligence Community to the effort.
7. Overhead reconnaissance architecture
The Committee conducted numerous staff briefings and
interviews, and one hearing with senior Intelligence Community
officials, to discuss our nation's satellite reconnaissance
architecture. These sessions dealt with agreements between the
Department of Defense and the then fledgling Office of the
Director of National Intelligence; cost concerns relating to
major system acquisition; ongoing studies about an objective
architecture and investments related to achieving that
architecture; and concerns over the agencies' fiscal
discipline. In the Classified Annexes to the annual
Intelligence Authorizations bills, the Committee expressed
concern over the rising costs of ill-defined or poorly managed
programs; continued ``stovepiped'' acquisitions; inadequate
investment in foundational capabilities; inadequate functional
management of the broader intelligence enterprises; and an
apparent reluctance to embrace new and more cost-effective
technologies.
8. Department of Treasury Intelligence Program
On May 11, 2006, the Committee conducted a hearing with the
Department of the Treasury on the Terrorist Finance Tracking
Program. The program involves the issuance of subpoenas to
collect information from a company that operates a worldwide
messaging system used to transmit bank transaction information.
The information obtained is searched for counterterrorism
purposes. The program was publicly acknowledged on June 23,
2006. Subsequent to the hearing, Committee staff conducted
several briefings on the program. In addition, the Committee
held a hearing on July 20, 2006, on terrorist financing.
B. Committee Reviews
1. Phase II of the inquiry into the prewar intelligence assessments on
Iraq
In June 2003, the Committee began a review of U.S.
intelligence related to the existence of Iraq's weapons of mass
destruction (WMD) programs, Iraq's ties to terrorist groups,
Saddam Hussein's threat to stability and security in the
region, and his violations of human rights including the actual
use of WMD against his own people.
In February 2004, the Committee voted unanimously to
authorize formally the ongoing review and to expand the scope
of the work as previously described by the Chairman and Vice
Chairman in June 2003. It was the stated intention of the
Chairman to produce an initial report covering areas that were
near completion. The expanded scope along with questions
related to the accuracy of prewar WMD and terrorism assessments
became the five topics in a second phase of the Committee's
Iraq Review. The other topics in Phase II were to be prewar
intelligence about postwar Iraq, whether prewar public
statements were substantiated by intelligence information, the
Intelligence Community's use of information provided by the
Iraqi National Congress, and intelligence activities within the
Office of the Under Secretary of Defense for Policy.
The Phase I report--the Report of the Select Committee on
Intelligence on the U.S. Intelligence Community's Prewar
Intelligence Assessments on Iraq, S. Rep. No. 108-301--was
submitted to the Senate on July 9, 2004. On September 8, 2006,
the Committee submitted to the Senate redacted unclassified
reports on two Phase II matters: (1) Postwar Findings About
Iraq's WMD Programs and Links to Terrorism and How They Compare
with Prewar Assessments, S. Rep. No. 109-331 (``Accuracy
Report''); and (2) The Use by the Intelligence Community of
Information Provided by the Iraqi National Congress, S. Rep.
No. 109-330 (``INC Report''). Unredacted classified copies of
the reports are available to all members of the Senate for
reading at the Committee.
The Committee's vote to adopt the findings and conclusions
of the Accuracy Report was 14 ayes and 1 no. The Committee vote
to adopt the findings and conclusions of the INC Report was 11
ayes and 4 noes. Language offered in the form of amendments was
incorporated in thereports. The Committee Actions section of
both reports includes a description of each amendment offered and
action taken on the amendment. Several sets of additional and minority
views to each report were filed by Senators. All of those views are
printed in the reports.
At the end of 109th Congress, the Committee was continuing
its work evaluating prewar intelligence about post-invasion
Iraq, and whether prewar public statements were substantiated
by intelligence information. In early 2007, the Committee
received a report from the Department of Defense IG on the
intelligence activities of the Office of the Under Secretary of
Defense for Policy that had been requested by the Committee
Chairman in August 2005.
2. Able danger
The Committee began a review of a Department of Defense
program, Able Danger, in August 2005, when certain allegations
relating to the program gained prominence in the media. Able
Danger was the unclassified name for a 1999 effort directed by
then-Chairman of the Joint Chiefs of Staff, General Henry H.
Shelton, U.S. Army, to develop a campaign plan against
transnational terrorism with an initial focus on the al Qa'ida
terrorist network.
Committee staff examined four specific claims made in the
media about the Able Danger effort:
Claim 1: The Able Danger program had linked Mohammed
Atta and three other September 11 hijackers to al
Qa'ida on a chart prepared almost two years prior to
September 11, 2001.
Claim 2: Soon after the September 11 attacks, the
pre-September 11, 2001 chart with Mohammed Atta's
picture was passed to then-Deputy National Security
Advisor Stephen Hadley.
Claim 3: Defense Department lawyers prevented Able
Danger team members from sharing Able Danger's findings
with the FBI.
Claim 4: Defense Department lawyers wrongly
interpreted intelligence oversight law and issued legal
guidance that unnecessarily restricted the Able Danger
effort and caused the destruction of Able Danger
program data.
Committee staff interviewed numerous individuals who had
worked on the Able Danger program or had knowledge of the
issues surrounding its activities, including each of the five
individuals who claimed to have seen Mohammed Atta's name and
picture on an Able Danger chart produced prior to 9/11. In
September 2005, Committee staff briefed Committee members about
this inquiry. Following that brief, Committee staff conducted
additional interviews and document reviews.
In September 2006, the Department of Defense IG completed a
report examining many of the issues that the Committee staff
had been reviewing plus additional areas of inquiry. The
Committee staff met with the IG and reviewed the report in
detail.
In December 2006, Chairman Roberts and Vice Chairman
Rockefeller wrote to the members of the Committee to inform
them that the Committee staff had concluded its work and judged
that Able Danger did not identify Mohammed Atta or any other 9/
11 hijacker at any time prior to September 11, 2001. The
Chairman and Vice Chairman reported further that Committee
staff found no evidence to support the allegation that Able
Danger team members were prevented from pursuing contact with
the FBI to share terrorism related information found by the
Able Danger program; no evidence that the Able Danger program
produced any actionable intelligence or any information which
would have warranted sharing with the FBI; and the Committee
staff concluded that Department of Defense lawyers correctly
interpreted intelligence oversight law and issued appropriate
legal guidance on the collection, retention, and destruction of
information. The text of the letter from the Chairman and Vice
Chairman is available on the Committee's website at http://
intelligence.senate.gov/.
C. Financial Accounting, Inspectors General, and Audits
The Committee's rules provide that within its staff there
``shall be an element with the capability to perform audits of
programs and activities undertaken by departments and agencies
with intelligence functions. Such element shall be comprised of
persons qualified by training and/or experience to carry out
such functions in accordance with accepted auditing
standards.'' During the 109th Congress, the name of the staff
element was changed from Audits and Investigations to Audits
and Evaluations. In addition to audits, this element has
responsibility for assisting in the Committee's oversight of
Intelligence Community compliance with financial accounting
standards and also the Committee's interaction with the various
IGs whose work includes or covers the Intelligence Community.
1. Intelligence community compliance with Federal financial accounting
standards
During the 109th Congress, the Committee continued to
closely monitor the Intelligence Community's financial
management practices. The foundation for these activities is
the 1990 Chief Financial Officers Act, which requires public
sector agencies to report financial information in a structured
and uniform manner. One goal of the Act was to establish a
process to provide reliable, useful, and timely financial
information to support decision making and accountability
regarding the use of federal funds. The Act requires
independent audits of agency financial information to evaluate
performance against this goal. The results of these audits are
public information.
Since the enactment of the Chief Financial Officers Act,
the federal government has made substantial progress in
strengthening financial management and accountability. In
fiscal year 2004, 16 of the original 24 federal agencies
required to comply with the financial statement
auditrequirement received unqualified opinions on their financial
statements. According to the Government Accountability Office, the
underlying trend at these 16 agencies was that they embraced the idea
of obtaining auditable financial statements, as opposed to giving
reasons why it would be too costly or difficult to achieve the
requirement.
The elements of the Intelligence Community were not
included in the original 24 agency pilot program. In its report
accompanying the Intelligence Authorization Act of 2002, S.
Rep. No. 107-63, at 15-16 (2001), this Committee required that
the DCI, in consultation with the Secretary of Defense, direct
a statutory IG to perform audits of the ``form and content'' of
the fiscal year 2001 financial statements for the NSA, DIA,
CIA, and the National Imagery and Mapping Agency, since renamed
the National Geospatial-Intelligence Agency, and report the
audit findings to the Intelligence Committees by April 1, 2002.
The Committee further directed that the DCI, in consultation
with the Secretary of Defense ``ensure that all agencies in the
DoD-NFIP [Department of Defense National Foreign Intelligence
Program] aggregation, including the CIA, receive an audit of
their financial statements by March 1, 2005.''
The fiscal year 2001 form and content reviews were not
comprehensive audits; rather, they were intended to prepare the
agencies to undergo a comprehensive financial statement audit
of their fiscal year 2004 data. The IGs completed the form and
content reviews but the agencies were unable to meet the 2004
audit requirement, a deadline that has been extended several
times. In December 2006, when it became evident that the NSA,
NGA, and DIA were still unable to comply, the Chairman and Vice
Chairman granted another extension, providing that the fiscal
year 2007 financial statement audits for all Intelligence
Community agencies shall be completed by November 15, 2007, and
that by March 1, 2007, the DNI, in consultation with the Office
of Management and Budget, shall submit to the Committee a plan
for Intelligence Community compliance with the financial
statement audit requirement.
Beyond the need to satisfy the existing financial statement
audit requirement, the Committee remained concerned throughout
the 109th Congress that the agencies of the Intelligence
Community cannot quantify their cost of doing business nor
demonstrate a tangible plan to improve financial management. In
its May 2006 report on the Intelligence Authorization Act for
Fiscal Year 2007, the Committee directed the DNI and the
Director of the Office of Management and Budget to develop a
plan to transform Intelligence Community financial management.
One objective is the preparation of a strategic plan for a
single Intelligence Community financial management system,
including a consolidated financial statement for the National
Intelligence Program for fiscal year 2009. The Committee
directed that the plan should address development of a common
accounting code and standard business processes for the
Intelligence Community. S. Rep. No. 109-259, at 44.
2. Oversight of Intelligence Community Inspectors General
During the 109th Congress, the Committee continued to
monitor the activities of the Intelligence Community IGs. This
oversight included: review of numerous IG products, including
audit reports, inspection reports, reports of investigation,
and semi-annual reports of IG activities; numerous visits to IG
offices for updates on plans and procedures; and attendance and
participation at several IG conferences. In addition to a
number of Committee hearings on issues reviewed by the IGs,
staff conducted a number of briefings with Intelligence
Community program officials and IG personnel in order to follow
up on the status of IG recommendations. Examples include
employee grievances, management of operational activities,
contracting procedures, employee recruitment and security
processing, the CIA's Working Capital Fund, and effective use
of resources on new technology.
During the 109th Congress, the Committee continued its work
to ensure the effectiveness and independence of the
administrative, non-statutory IGs at the NRO, NSA, NGA, DIA,
and the ODNI. The Committee reinforced the importance of the IG
function through its regular interaction with agency directors,
the IGs, and their staffs. The administrative IGs also
submitted annual reports to the Committee detailing their
requests for fiscal and personnel resources, and the plan for
their use. These reports included the agency programs and
activities scheduled for review during the fiscal year,
comments on the office's ability to hire and retain qualified
personnel, any concerns relating to the independence and
effectiveness of the IG's office, and an overall assessment of
the agency's response to the IG's recommendations during the
previous year. These annual reports served as a basis for
Committee oversight throughout the 109th Congress.
Additionally the Committee included provisions in the
fiscal years 2006 and 2007 Intelligence Authorization bills to
add the IGs at the NRO, NSA, NGA, and DIA to the Section 8G of
the Inspector General Act of 1978. This statutory designation
will provide the IGs with additional authorities to conduct
investigation including the ability to compel the production of
information. Both years' Authorization bills also included a
provision amending the National Security Act of 1947 to
establish a statutory charter for the DNI IG.
3. Audits
During the 109th Congress, the Committee's audit staff
completed audits of the CIA's In-Q-Tel venture and the
implementation of the FISA, and made substantial progress
toward completing three other audits.
a. In-Q-Tel
In-Q-Tel was established in 1999 as an independent,
private, not-for-profit company to identify and deliver
cutting-edge information technology solutions to the CIA. In
May 2005, in response to the Committee's concerns about the
success of In-Q-Tel in achieving this goal, theChairman and
Vice Chairman asked the Audit and Evaluations Staff to conduct an
audit. The audit staff examined the success of In-Q-Tel, specifically
in terms of the commercial technologies actually reaching the CIA.
In April 2006, the final report of the audit was
transmitted to the DNI for dissemination within the
Intelligence Community. The audit determined that while In-Q-
Tel has not revolutionized the way the CIA does business, the
venture capital model has produced some successes, primarily in
the area of analytic tools. The CIA's aging information
technology infrastructure and bureaucratic software
accreditation process have hindered In-Q-Tel technology
transfer. The audit concluded that the Committee should
continue to support the In-Q-Tel program while encouraging the
CIA to upgrade its infrastructure to better enable In-Q-Tel
commercial technology infusion and to place a higher priority
on transferring In-Q-Tel products to CIA end users.
b. Foreign Intelligence Surveillance Act
The Committee has periodically reviewed the implementation
of the FISA since the law was enacted in 1978. The last
Committee audit of the FISA process, prior to the audit
completed in the 109th Congress, was conducted in 1998. Since
then, Congress had made numerous important changes to the
statute that warranted review of their implementation. While
the Committee's Audit and Evaluations Staff began its formal
review of the FISA process in the 108th Congress, the final
audit report on procedures, practices, and use under the FISA
was completed in the 109th Congress in support of the
Committee's deliberations regarding the USA PATRIOT Act. The
classified report was provided to the DNI for distribution to
appropriate Intelligence Community elements. In its June 2005
report to accompany its PATRIOT Act bill, the Committee
described the audit, which was then nearing completion, to be
``one of the most thorough reviews of Executive branch
activities under the FISA since the USA PATRIOT Act was
enacted.'' S. Rep. No. 109-85, at 2.
The audit included a review of the backlog of requests for
FISA coverage, an analysis of the impact of the temporary FISA
provisions that were included in the USA PATRIOT Act of 2001,
and an assessment of the resource requirements associated with
FISA activities. The audit report made a total of 43
recommendations. Twelve recommendations were addressed to the
Committee; of these, ten were the subject of legislation that
was ultimately approved by the Congress.
In conducting its review, the Committee noted that some
delays in processing FISA warrants were attributable to
inadequate staffing levels, inefficient organizational
structures within the Office of Intelligence Policy and Review
(OIPR), and differences of opinion between the FBI and the
OIPR. The Committee offered several recommendations to address
these delays including the drafting of a Memorandum of
Understanding that outlines each organization's
responsibilities for FISA applications. The Committee also
examined the use of new technology to enhance administrative
aspects of the FISA process throughout the Intelligence
Community. Using technology to improve the connectivity between
the FBI and the OIPR would enhance access to relevant
documents, thereby decreasing the amount of time necessary to
process a FISA request.
During the course of the audit, it came to the Committee's
attention that most FBI field divisions did not have sufficient
Sensitive Compartmented Information Facilities to house
national security personnel and provide ready access to secure
communications equipment and resources. The Committee
recommended that the FBI Director take immediate steps to
address this shortfall. Finally, the Committee recommended that
the Attorney General develop new FISA minimization procedures
to reflect modern target profiles and communication
capabilities, as well as information processing technologies.
c. Intelligence community personnel growth
The Final Report of the National Commission on Terrorist
Attacks Upon the United States (the 9/11 Commission)
recommended that the Director of the CIA emphasize rebuilding
that agency's analytic and human intelligence collection
capabilities. President Bush endorsed this recommendation and,
in November 2004, directed the CIA to increase its number of
all source analysts and case officers by 50 percent, increase
the number of language qualified officers by 50 percent, and
double the number of personnel doing research and development.
Although the President's directive focused on the CIA, there
have been significant personnel increases in other agencies as
well.
In February 2005, the Committee initiated an audit to
examine the full scope of the activities and resources that
would be necessary to support the proposed personnel growth.
During the 109th Congress, the Audit and Evaluations Staff
reviewed whether the Intelligence Community has in place the
practices and procedures necessary to properly recruit, train,
equip, field, and retain the additional personnel, and to
determine the associated funding levels necessary to implement
this growth in personnel.
While the audit was not issued and provided to the
Intelligence Community until early 2007, it essentially was
complete at the end of 2006. The findings indicate that the
projected growth of new personnel across the Intelligence
Community has not been well defined. The requirements for the
additional personnel have not been documented and there has
been limited planning for a comparable growth in support
functions. Specifically, the audit has identified the following
issues:
Insufficient hiring processes to meet the
personnel targets
Significant shortages in training capacity
and secure office space
Inadequate planning for administrative,
logistics, and technical support
Minimal controls over the use of contractor
support
To address the concerns identified in this audit, the
Committee included language in the proposed Intelligence
Authorization Act for Fiscal Year 2007 that fenced funds
associated with personnel growth and required the DNI to
provide a comprehensive personnel growth strategy. In the
report accompanying the authorization bill, the Committee took
note of the personnel growth audit, stating that the
Intelligence Community faces significant challenges
implementing the proposed growth.
d. Document exploitation
In December 2005, the Committee's Audit and Evaluations
staff began a review of the practice of collecting, processing,
translating, and reporting on information obtained from overtly
captured and/or clandestinely acquired paper documents and
electronic media. This overall activity, called document and
media exploitation or ``DOCEX,'' is an effort that since 2001
has realized a rapid increase in funding because of the
valuable intelligence information it provides to both tactical
operations and strategic analysis.
The Committee is concerned about the varied and disparate
Intelligence Community initiatives to process, translate, and
exploit captured documents and electronic media. The audit has
analyzed the costs of the various document and media
exploitation efforts and associated technology development
programs. The audit is also evaluating the intelligence value
derived from these efforts and the budget implications for
sustaining these initiatives over the long-term.
Building on the preliminary results of this ongoing audit,
the Committee, in the May 2006 report accompanying its fiscal
year 2007 bill, encouraged the DNI to appoint a program manager
for National Intelligence Program DOCEX efforts, develop a
national DOCEX strategy, and form a DOCEX technology
investments board to guide and develop a coordinated Community-
wide research and development strategy.
e. Compartmented program
The Committee's Audit and Evaluation Staff conducted a
review of a compartmented Intelligence Community program. Given
the significant amount of time and money that had been invested
in that program, the Committee was concerned about the
termination of a major program element and whether the
Committee had been adequately informed about the program's
overall status. The audit examined the series of events and
activities that led to the current program status, as well as
the associated cost. This audit will be completed in early 2007
and will guide the Committee in making future funding decisions
regarding this program.
D. Restricted Access Programs
During the 109th Congress, public disclosures of two
previously highly classified programs focused attention on the
Executive branch practice of providing notification of certain
intelligence activities to only a limited number of members of
Congress. This practice is sometimes known as a ``Gang of
Eight'' notification because of the procedure contained in
Section 503(c)(2) of the National Security Act of 1947. That
section authorizes the President, in extraordinary
circumstances, to limit notification of covert action findings
to eight members of Congress--the Chairman and ranking members
of the intelligence committees, the Speaker and minority leader
of the House, and the majority and minority leader of the
Senate. In the case of these two programs, once they were
disclosed they became the subject of intense legislative
interest although very few members were knowledgeable of the
details of either.
1. Detention and interrogation
In November 2005, press stories appeared describing a
program of clandestine detention facilities in various foreign
locations being run by the CIA. On September 6, 2006, the
President acknowledged the existence of a CIA program to detain
and question suspected terrorists outside the United States. He
also announced the transfer of 14 individuals detained under
this program from these foreign sites to the U.S. military
facility at Guantanamo Bay. According to the President, these
14 were the only individuals detained in the overseas CIA
facilities at the time of the announcement.
This Committee had been briefed in a general way about the
existence of a CIA detention program from its inception. Key
aspects of the program, however, were briefed to the Chairman
and Vice Chairman. In November 2006, the information that had
been restricted previously was provided to the full membership
of the Committee.
At the same time the President acknowledged the existence
of the CIA detention program, he announced his intention to
send a legislative proposal to the Congress to establish
military tribunals to try terrorism suspects and also ``to
ensure that the CIA program goes forward in a way that follows
the law.'' Several bills on this topic were introduced and
debated. On September 28, 2006, S. 3930, the Military
Commissions Act of 2006 passed the Senate. It passed the House
the next day and was signed by the President as Pub. L. No.
109-366. On signing the bill, the President reiterated that he
had ``one test for the bill Congress produced: Will it allow
the CIA program to continue?''
The Military Commissions Act addresses a number of matters
of interest to the responsibilities of the Committee. It
establishes rules on the protection and introduction of
classified information in military commission. It specifies the
conduct that would constitute grave breaches of Common Article
3 of the Geneva Conventions and be subject to U.S. criminal
penalties. It authorizes the President to promulgate
administrative regulations regarding violations of the Geneva
Conventions and to publish interpretations on the meaning and
application of the Conventions in the Federal Register. It
provides that the President shall take action to ensure
compliance with the prohibition on cruel, inhuman, or degrading
treatment that had been enacted in the Detainee Treatment Act,
including through the establishment of administrative rules and
procedures.
2. NSA surveillance
In December 2005, press reports described an NSA program to
collect electronic communications intelligence inside the
United States absent a warrant issued under the FISA. The
Executive branch subsequently disclosed that knowledge of this
program had been limited to very few members of Congress--the
Gang of Eight plus senior members of the Defense Appropriations
Subcommittees and a few other members of the congressional
leadership. The Chairman and Vice Chairman sought to have
member access to this program expanded for the members of this
Committee. In March 2006, the Committee reached agreement with
the Executive branch to establish an ad hoc subcommittee of
seven members, including the Chairman and Vice Chairman, to
oversee the program. In May 2006, the restriction was further
modified and all members of this Committee were given access to
information about the NSA program.
Following resolution of the access question, the Committee,
and three members of the staff, received several briefings
about the legal parameters and operation of the program. The
program generated significant interest in the Congress.
Different pieces of legislation related to the program were
introduced. Three of these bills were reported by the Senate
Judiciary Committee and others were placed on the Senate
Calendar without referral to a committee, but no floor action
occurred in the Senate. Early in the current Congress, this
Committee announced its intention to examine carefully
legislative proposals on surveillance matters.
E. Review of Intelligence Related to Iran
In the 109th Congress, the Committee initiated a Community-
wide review of how well our intelligence agencies are
collecting and analyzing information about Iran, including its
WMD programs. The review has focused on mapping the Community's
efforts in order to establish a baseline of what the various
agencies of the Community are doing to collect information on
Iran, what their analytic judgments on Iran are, and how well
grounded those assessments are. The Committee has designated a
staff team to undertake this review, which has had briefings
from, or meetings with, various agencies on their Iran
programs, including the CIA, DIA, NGA, NSA, ODNI, Department of
Energy, Department of State Bureau of Intelligence and
Research, NCTC, U.S. Special Forces Command, and National
Intelligence Council.
The review is also looking at how well the various
intelligence agencies work together under the DNI on Iran
matters. This includes to what extent lessons learned, as
identified in the Committee's 2004 report on the performance of
the Intelligence Community before the Iraq War, have been
applied to current issues such as Iran. It is anticipated that
the review will result in recommendations to improve U.S.
intelligence capabilities concerning Iran and in general.
F. Covert Action
Under the National Security Act, the DNI shall keep the
congressional intelligence committees fully and currently
informed of all covert actions that are the responsibility of,
are engaged in by, or are carried out for or on behalf of any
department or agency of the United States, including
significant failures. The National Security Act defines a
covert action to be an activity of the United States Government
to influence political, economic, or military conditions
abroad, where it is intended that the role of the U.S.
Government will not be apparent or acknowledged publicly. The
DNI shall furnish the committees with any information
concerning covert actions that is in the possession of any U.S.
Government entity and which is requested by either intelligence
committee in order to carry out its responsibilities. The only
qualification on this reporting responsibility is consistency
with due regard for protection from unauthorized disclosure of
classified information relating to sensitive intelligence
sources and methods or other exceptionally sensitive matters.
Under the Committee's rules, the Staff Director shall
ensure that U.S. Government covert action programs receive
appropriate consideration by the Committee no less frequently
than once a quarter. Every quarter, the Committee receives a
written report on each covert action that is being carried out
under a presidential finding. Committee staff then devote
several sessions, often over a couple of days, to review with
Intelligence Community personnel the reports on each subject,
and often pose follow up questions and receive further
briefings or written answers.
As the Committee has written in past reports, the purpose
of these reviews includes to ensure that their means and
objectives are consistent with U.S. foreign policy goals, were
conducted in accordance with U.S. law, produce or can be
expected to produce reasonable benefits for the resources
expended, and are consistent with U.S. ideals and principles.
There is often questioning about the effectiveness of the
programs.
G. Independent Cost Estimates
During the 109th Congress, the Committee continued its
efforts to address the growth in major acquisition costs by the
Intelligence Community. The Intelligence Authorization Act for
Fiscal Year 2004 formalized the process for developing
independent cost estimates for major Intelligence Community
acquisitions. The Act required the preparation of an
independent cost estimate of the full life-cycle cost of
development, procurement, and operation of any system projected
to cost more than $500 million. The Act further required the
President's budget request to reflect the amounts identified in
the independent cost estimates, or if it did not, to explain
why it differed.
Prior to Committee action to address the growth in
acquisition costs, the budget for major systems generally
reflected cost estimates prepared by the Intelligence Community
component responsible for acquiring and operating the system.
The magnitude and frequency of cost growth in major systems
indicated a systemic bias within the Intelligence Community to
underestimatethe costs of such acquisitions. The Committee
recognized that the use of independent cost estimates prepared by
offices outside the acquiring and operating components had resulted in
more accurate projections of the costs of major systems.
Throughout the 109th Congress, the Committee continued to
monitor compliance with this Act, including prohibitions on the
obligation or expenditure of funds for the development or
procurement of major systems without statutory independent cost
estimates. Committee staff reviewed independent cost estimates
for major program acquisitions in the National Intelligence
Program. The Committee relied on the independent work done by
the Department of Defense and Intelligence Community Cost
Analysis Improvement Groups (CAIGs). The Committee has reviewed
several independent cost estimates from the Department of
Defense and Intelligence Community CAIGs relating to major
National Intelligence Program acquisitions. These estimates
have been very useful tools for the Committee in its ongoing
effort to instill fiscal discipline into the Intelligence
Community's budget.
H. Declassification
During the 109th Congress, the Committee dealt with a
number of issues related to declassification of information.
1. CIA accountability report
The December 10, 2002, Report of Joint Inquiry Into
Intelligence Community Activities Before and After the
Terrorist Attacks of September 11, 2001 of the Senate and House
intelligence committees included a three-part recommendation on
accountability. First, the DCI should report to the Committees
in 2003 on steps taken to implement a system of accountability
throughout the Intelligence Community. Second, in the
confirmation process for Intelligence Community officials,
Congress should require an affirmative commitment to the
implementation and use of strong accountability mechanisms.
Third, a review of whether employees deserved awards for
outstanding service or should be accountable for failing to
satisfactorily perform their duties should be conducted. With
regard to accountability, the recommendation stated:
. . . the Inspectors General at the Central
Intelligence Agency, the Department of Defense, the
Department of Justice, and the Department of State
should review the factual findings and record of this
Inquiry and conduct investigations and reviews as
necessary to determine whether and to what extent
personnel at all levels should be held accountable for
any omission, commission, or failure to meet
professional standards in regard to the identification,
prevention, or disruption of terrorist attacks,
including the events of September 11, 2001.
S. Rep. No. 107-351 and H. Rep. No. 107-792, Recommendation 16
(2002).
Each of the IGs listed in the recommendation completed and
submitted a report to the Committee.
In July 2004, the Department of Justice IG completed a 421-
page classified report entitled A Review of the FBI's Handling
of Intelligence Information Relating to the September 11
Attacks. This report was provided to the National Commission on
Terrorist Attacks Upon the United States (the 9/11 Commission)
and to the House and Senate Judiciary and Intelligence
Committees. In June 2005, at the request of the Senate
Judiciary Committee, the Department of Justice IG publicly
released an unclassified, redacted version of that report, on
all matters except Zacharias Moussaoui, against whom criminal
proceedings were then pending in the United States District
Court for the Eastern District of Virginia. In June 2006, after
the conclusion of the Moussaoui case, the IG released the full
unclassified report, including the section on the FBI's
handling of the Moussaoui matter. The total length of the
Department of Justice IG unclassified report was 370 pages,
amounting to approximately 87 percent of the original
classified report.
In the introduction to the unclassified report, the
Department of Justice IG noted that the review of the FBI's
handling of information about two September 11 hijackers, Nawaf
al Hazmi and Khalid al Mihdar (who entered the United States in
January 2000 and first resided in San Diego), required
obtaining a significant amount of information from the CIA
about its interactions with the FBI on that matter. The report
notes that the IG Office at the Department of Justice had to
rely on the cooperation of the CIA in providing access to CIA
witnesses and documents, and that while they were able to
obtain CIA documents and interview CIA witnesses they ``did not
have the same access to the CIA that [they] had to Department
of Justice information and employees.'' The Department of
Justice IG noted that CIA IG was conducting his own inquiry
into CIA actions regarding al Mihdar and al Hazmi.
The CIA IG report was completed in June 2005 and delivered
to the Committee as a classified document in August of that
year. In contrast to the Department of Justice IG report, no
part or summary of the CIA IG report has yet been made public.
In August 2005, Chairman Roberts wrote to then-CIA Director
Porter Goss and requested that the CIA IG report be
declassified ``as soon as practicable and to the maximum extent
possible.'' Chairman Roberts repeated this request in a second
letter the following month, stating: ``I believe that the
deaths of nearly 3,000 citizens on September 11, 2001 gives the
American public a strong interest in knowing what the IG found
and whether those whose performance was lacking will be held
accountable.'' Although Director Goss responded to both
letters, he did not make any commitment regarding
declassification of the report.
In January 2006, Senator Wyden wrote to Director Goss,
again requesting that the report be redacted and declassified.
In an April 2006 reply, Director Goss declined to commit to
releasing the report.
The issue was raised during the confirmation hearing for
the new CIA Director, General Michael Hayden, who stated in a
May 2006 letter to Senator Wyden that he intended to examine
the issue. In June 2006, Committee staff prepared a proposed
redacted version of the Executive Summary of the report which
Chairman Roberts sent to General Hayden for comment. In August
2006, General Hayden notified the Committee that he did not
intend to declassify the report.
In September 2006, Chairman Roberts forwarded the proposed
redacted Executive Summary to DNI Negroponte, and requested
that he work with the Committee to determine what redactions
would be necessary in order to release the report. In a
November 2006 reply, Director Negroponte declined to do so.
In January 2007, upon the organization of the Committee in
the current Congress, Chairman Rockefeller, Vice Chairman Bond,
and Senator Wyden wrote to Director Negroponte with their
comments on his November letter. Because the letter completes
the exchange with Director Negroponte, we describe it here. The
letter begins by describing the importance of the CIA IG
report:
This report provides a unique perspective on one of
the defining events in American history, and we believe
that, while the body of the report is reviewed for
later release, the Executive Summary should be
declassified without further delay and released to the
public. We recognize that the report contains some
sensitive national security information, and this
information must be redacted from the Executive Summary
before the Summary is released.
The letter states that if the DNI has particular concerns
about the proposed redaction of the Executive Summary prepared
at the Committee, he should ``propose specific further
redactions that are based on particular classification
grounds.'' It notes that one reason advanced in the DNI's
November 2006 letter for declining action on declassification
is not a valid basis for classification under current law and
executive orders. While it is possible that some high-profile
intelligence officials could be identified by their title
alone, that possibility has not prevented those officials from
being described in other public reports. To the extent that the
DNI expressed concern about damage to the reputation of high-
profile intelligence officials whose identities could be
revealed in the report, the letter encourages the DNI to permit
release of redacted versions of their responses to the IG
report.
Finally, the letter notes that the Department of Justice IG
had produced a similar report and that most of it had been
appropriately declassified and released, ``providing a clear
example to be followed.''
2. Reports on prewar intelligence regarding Iraq
In September 2006, as described above, the Committee
released two reports on prewar intelligence regarding Iraq. In
the introduction to its report on the accuracy of prewar
assessments of Iraqi WMD and links to terrorism, the Committee
expressed disagreement with the Intelligence Community's
decision to classify certain portions of the report and
concluded that this decision was not justified.
Seven members of the Committee wrote to the then recently-
constituted Public Interest Declassification Board to request
that it review the documents and make recommendations regarding
their classification. In an interim response, the Board
indicated that it might not be able to conduct such a review
without White House authorization. This was followed by a
letter from six senators in October, expressing their
disagreement with the Board's interpretation of its mandate and
requesting that the Board begin its review. Chairman Roberts
and Vice Chairman Rockefeller repeated this request in a
November letter. These letters are available at the National
Archives website (http://www.archives.gov/declassification/
pidb/declassification-requests.html).
In December 2006, the Board wrote to the Chair of the
Homeland Security and Governmental Affairs Committee,
requesting that the statute authorizing the Board be clarified
to establish that the Board could begin, without approval by
the White House, a declassification review requested by the
Congress. In January 2007, that Committee reported legislation
to achieve this objective.
3. Iraq WMD Retrospective Series
The Committee's report on the accuracy of prewar
intelligence on Iraqi WMD included an appendix that briefly
described five papers that the CIA had published, starting in
January 2005, as part of its Iraq WMD Retrospective Series. A
sixth retrospective was in progress. The series addressed the
CIA's current post-Operation Iraqi Freedom understanding of
Iraq's WMD and delivery programs. The Committee stated that it
was evident that ``the retrospective series will be an
important source of information about the history of these
times. For that reason, the Committee has asked the CIA to
declassify the retrospectives to the extent consistent with
national security.'' That declassification has not yet
occurred.
4. National Archives audit
In early 2006, a National Archives' Information Security
Oversight Office audit disclosed that records had been removed
from public access at the National Archives for classification
reasons. In April 2006, the officials from Information Security
Oversight Office briefed Committee staff on the results of the
audit. The audit found that a large number of documents had
been improperly classified, declassified, or reclassified, and
made a number of recommendations for improvement of the
classification process. The audit and recommendations were
publicly released and can be found on the web page of the
National Archives (http://www.archives.gov/declassification/).
I. Oversight of the Office of the Director of National Intelligence
Following confirmation of John Negroponte as the first DNI
in April 2005, Committee staff conducted oversight of the
establishment of the ODNI and the implementation of the
Intelligence Reform Act.
Committee staff met with and received numerous briefings
from components of the ODNI, including the offices of the four
Deputy Directors authorized by the Intelligence Reform Act. The
DNI used that authority to establish Deputy Directors for
Analysis (who also serves concurrently as the Chairman of the
National Intelligence Council), Collection, Management
(including development and execution of the National
Intelligence Program budget), and Requirements. The Committee
staff also received briefings from the DNI's NCTC, National
Counterproliferation Center, the Mission Managers for Iran and
North Korea, the DNI IG, the Chief Information Officer, the
Chief Financial Officer, and the Civil Liberties and Privacy
Officer, among others.
The ODNI submitted numerous reports and strategy documents
to the Committee during 2005 and 2006. For example, the ODNI
provided the National Intelligence Strategy, the National
Intelligence Priorities Framework, the Annual Report of the
United States Intelligence Community, semiannual progress
reports on the implementation of the DNI's budget authorities,
the Implementation Plan for the Information Sharing
Environment, the Intelligence Community's Annual Report on the
Hiring and Retention of Minority Employees, a report on efforts
to address foreign language shortfalls, a report describing
reviews of analytic products, the report of the Future Overhead
SIGINT Architecture Panel, and updates on the activities of the
Office of Analytic Integrity and Standards & Ombudsman.
IV. NOMINATIONS
During the 109th Congress, ten nominations were referred to
the Committee, nine directly upon receipt in the Senate and one
sequentially after referral to and reporting by another
committee. The Committee held hearings for nine of the ten
nominees and recommended to the Senate that it give its advice
and consent to each of those nine nominations, which was done.
Throughout the Congress, referrals to the Committee were
governed for the first time by Section 17 of S. Res. 400 of the
94th Congress, which had been added by S. Res. 445 of the 108th
Congress and was further augmented during the 109th Congress.
As a result of S. Res. 445, all nominations to advice and
consent positions in the Intelligence Community are referred to
this Committee, even when they are positions--such as the
Assistant Secretary of the Treasury for Intelligence and
Analysis or the Assistant Secretary of State for Intelligence
and Research--that are within departments which are primarily
under the jurisdiction of other Senate committees.
Four of the nominations were for positions created by the
Intelligence Reform Act of 2004 that were being filled for the
first time: DNI; Principal Deputy DNI; the Director of the
NCTC; and the General Counsel, Office of Director of National
Intelligence.
Three nominations were for positions, also filled for the
first time, that were created by other legislation in the 108th
or 109th Congress: Assistant Secretary of the Treasury for
Intelligence and Analysis, established by the Intelligence
Authorization Act for Fiscal Year 2004 (December 13, 2003);
Chief Information Officer, ODNI, established by the
Intelligence Authorization Act for Fiscal Year 2005 (December
23, 2004); and Assistant Attorney General for National
Security, established by the USA PATRIOT Improvement and
Reauthorization Act of 2005 (March 9, 2006).
A primary task of the Committee during the 109th Congress
was to examine in detail, for the first time in the setting of
a nomination, the responsibilities of these new leadership
positions in the Intelligence Community. The Committee
accomplished this not only through questioning the nominees at
their confirmation hearings but also through extensive
prehearing questions, the responses to which have been or will
be printed in the hearing volumes for these nominations.
During the 109th Congress, the Committee also received and
acted on a nomination for Director of the CIA, but not as an
immediate consequence of the Intelligence Reform Act of 2004.
In a formal opinion in January 2005, the Office of Legal
Counsel at the Department of Justice concluded that when the
Intelligence Reform Act took effect (within six months of its
enactment in December 2004), the then-current DCI would not
require a new appointment to the office of the Director of the
CIA should the President wish him to serve in that position. In
accordance with that opinion and the President's wish, the DCI,
who was then Porter Goss, served as Director of the CIA until
his resignation in May 2006, at which time the President
nominated and the Committee and Senate acted on the nomination
of General Michael Hayden to be Director the CIA.
The following were the nominations referred to the
Committee during the 109th Congress, listed in accordance with
the date of the nomination:
A. John D. Negroponte, Director of National Intelligence
As described earlier in this report, the Intelligence
Reform Act of 2004 created the position of DNI and assigned to
the DNI the responsibility of serving as the head of the
Intelligence Community and acting as the principal adviser to
the President for intelligence matters relating to national
security. The Reform Act provides that any individual nominated
to be appointed as DNI shall have extensive national security
experience.
Among the position's duties and responsibilities, the DNI
is charged with determining the annual National Intelligence
Program budget and ensuring the effective execution of it. The
DNI is to determine requirements and priorities for the
collection, analysis, and dissemination ofnational
intelligence. The DNI shall ensure compliance with the Constitution and
laws by the CIA and, through their host departments, by the other
elements of the Intelligence Community.
On March 17, 2005, the President nominated John D.
Negroponte, then serving as U.S. Ambassador to Iraq, to be the
first DNI. In the course of a long diplomatic career, he had
served as U.S. Ambassador to Honduras, Mexico, and the
Philippines, and, immediately before Iraq, as the U.S.
Permanent Representative to the United Nations. He had also
served in the White House as a Deputy National Security Adviser
and in the State Department as an Assistant Secretary for
Oceans and International Environmental and Scientific Affairs.
After receiving Ambassador Negroponte's responses to the
Committee's standard questionnaire, and responses to the
Committee's prehearing questions about his understanding of the
duties and responsibilities of the office to which he had been
nominated, the Committee held a nomination hearing on April 12,
2005. Following the hearing, members also posed additional
questions in writing. Ambassador Negroponte's testimony and
answers to the written questions are printed in S. Hrg. 109-79.
The Committee reported the nomination favorably on April
14, 2005, by a vote of 14 to 1. The Senate confirmed Ambassador
Negroponte's appointment to be DNI on April 21, 2005, by a vote
of 98-2.
B. Michael V. Hayden, Principal Deputy Director of National
Intelligence
The Intelligence Reform Act established the position of
Principal Deputy Director of National Intelligence (PDDNI) to
assist the DNI in carrying out the duties and responsibilities
of the Director under the National Security Act. The Act
provides that the PDDNI shall exercise the powers of the DNI
during the DNI's absence or disability, or in the event of a
vacancy. It also provides that an individual nominated for
appointment as PDDNI shall not only have extensive national
security experience (a requirement applicable to the DNI as
well) but also management expertise. It contains a sense of
Congress that under ordinary circumstances, one of the persons
serving as DNI or PDDNI shall be a commissioned officer in
active status or have, by training or experience, an
appreciation of military intelligence.
On April 11, 2005, the President nominated Lieutenant
General Michael V. Hayden, USAF, who was then serving as the
Director of the NSA, to be the first PDDNI. General Hayden
entered active duty in 1969. During his career, he served as
Commander of the Air Intelligence Agency and Director of the
Joint Command and Control Warfare Center, Deputy Chief of
Staff, United Nations Command and U.S. Forces Korea, and then,
beginning in 1999 as Director of NSA for six years.
The Committee held a nomination hearing on April 14, 2005.
General Hayden's testimony and his responses to the Committee's
questionnaire and prehearing questions are printed in S. Hrg.
109-270. The Committee reported the nomination favorably that
day, by a unanimous vote of 15 to 0. On April 21, 2005, the
Senate agreed by voice vote to the nomination, together with
General Hayden's nomination to be a full General, which had
been reported by the Committee on Armed Services.
C. Janice Bradley Gardner, Assistant Secretary of the Treasury for
Intelligence and Analysis
The Intelligence Authorization Act for Fiscal Year 2004
created the Treasury Department's Office of Intelligence and
Analysis to replace the Office of Intelligence Support. The
Office of Intelligence and Analysis is responsible for the
receipt, analysis, collation, and dissemination of foreign
intelligence and counterintelligence information related to the
operation and responsibilities of the Treasury Department.
Janice Bradley Gardner was nominated by the President to
the position on May 16, 2005. She served for more than twenty
years as an intelligence officer, entering on duty at the CIA
in 1983. For a decade she worked as an analyst focusing on East
Asia issues, followed by service as the Chief of the CIA's
Persian Gulf Branch, as the DCI Representative to the National
Security Council, as Special Advisor to the Vice President for
Foreign Affairs, and then as Deputy Director of the Foreign
Broadcast Information Service, before beginning as a Senior
Intelligence Officer at the Department of the Treasury in 2002.
In May 2004, Ms. Gardner assumed the position of Deputy
Assistant Secretary of the Treasury for Intelligence and
Analysis to stand up the office that Congress had then just
established. Ms. Gardner is the first person named to fill the
position of Assistant Secretary.
On June 16, 2005, the Committee held a public hearing on
the nomination. The nominee's testimony and responses to the
Committee's questionnaire and prehearing questions are printed
in S. Hrg. 109-269. The nomination was reported favorably by
the Committee on July 26, 2005, by unanimous consent. She was
confirmed by the Senate on July 28, 2005, by voice vote.
D. Benjamin A. Powell, General Counsel, Office of the Director of
National Intelligence
The position of General Counsel for the ODNI was created by
the Intelligence Reform Act of 2004. The Act provides that the
General Counsel is the chief legal officer of the ODNI and
shall perform such functions as the DNI may prescribe. The
explicit law-related function of the DNI is to ensure
compliance with the Constitution and laws of the United States
by the CIA and ensure such compliance by other elements of the
Intelligence Community through their host executive
departments.
Benjamin A. Powell was nominated by the President to the
position on June 9, 2005. Since July 2002 and at the time of
his nomination, Mr. Powell served as Associate Counsel and
Special Assistant to the President. Prior to that, he served as
a corporate counsel and as a lawclerk for United States Supreme
Court Justices Byron White and John Paul Stevens. Mr. Powell is the
first person named to fill the position of General Counsel.
On July 19, 2005, the Committee held a public hearing on
the nomination. The nominee's testimony and answers to the
Committee's questionnaire and prehearing questions are printed
in S. Hrg. 109-242. His nomination was reported favorably by
the Committee on July 26, 2005, by unanimous consent, but not
acted on by the Senate in the first session of the 109th
Congress.
Mr. Powell received a recess appointment by the President
on January 4, 2006, and was nominated again on February 10,
2006. Following filing of a cloture motion on April 5, 2006,
the Senate approved his nomination on April 6, 2006, by voice
vote.
E. John S. Redd, Director of the National Counterterrorism Center
The Intelligence Reform Act of 2004 established, within the
ODNI, a National Counterterrorism Center (NCTC).
The Act provides that the NCTC Director has two reporting
responsibilities: to the DNI on NCTC's budget and programs, the
activities of its Directorate of Intelligence, and the conduct
of intelligence operations implemented by other elements of the
Intelligence Community; and to the President on the planning
and progress of joint counterterrorism operations other than
intelligence operations.
The Act provides that NCTC is the government's primary
organization for the analysis of counterterrorism and terrorism
intelligence, except for intelligence pertaining solely to
domestic terrorism. Beyond analysis, it is to conduct strategic
operational planning for counterterrorism activities,
integrating all instruments of national power, including
diplomatic, financial, military, intelligence, homeland
security, and law enforcement. It is to assign roles and
responsibilities to lead agencies, but not direct the execution
of resulting operations. It is to ensure that agencies receive
the necessary intelligence support to fulfill their own
operational or intelligence missions. The Director of NCTC
serves as the principal adviser to the DNI on counterterrorism
operations.
On June 30, 2005, the President nominated retired Vice
Admiral John S. Redd to be the first Director of the NCTC.
Admiral Redd had most recently served as Executive Director of
the Commission on the Intelligence Capabilities of the United
States regarding Weapons of Mass Destruction, often referred to
as the WMD or Robb-Silberman Commission. Immediately prior to
that, he served as Deputy Administrator and Chief Operating
Officer for the Coalition Provisional Authority in Iraq. A
retired Navy veteran, Admiral Redd held a number of senior
military positions, including Commander of the Navy's Fifth
Fleet in the Middle East.
The Committee held a nomination hearing on July 21, 2005.
Admiral Redd's testimony and his answers to the Committee's
standard questionnaire and prehearing questions are printed in
S. Hrg. 109-241. The Committee acted favorably on Admiral
Redd's nomination on July 26, 2005, by unanimous consent. The
Senate confirmed his appointment on July 28, 2005, by voice
vote.
F. Dale W. Meyerrose, Chief Information Officer, Office of the Director
of National Intelligence
The Intelligence Authorization Act for Fiscal Year 2005
(December 23, 2004) established an additional Senate-confirmed
position, that of Chief Information Officer (CIO), within the
ODNI. It provided that the new official would serve as the
Chief Information Officer of the Intelligence Community. Among
the CIO's responsibilities are managing activities relating to
the information technology infrastructure of the Intelligence
Community and directing and managing all information
technology-related procurement for the Community. The CIO has
the responsibility to ensure that all expenditures for
information and research and development activities are
consistent with the Intelligence Community enterprise
architecture and the strategy of the DNI for that architecture.
On September 8, 2005, the President nominated Major General
Dale W. Meyerrose to be the first Intelligence Community CIO.
During the course of the nomination process, he completed his
retirement from active duty. Over a thirty-year career in the
Air Force, General Meyerrose had extensive information
technology, communications, and information sharing experience.
He was a Chief Information Officer of three Air Force major
commands and three joint combatant commands, including the
North American Aerospace Defense Command and the U.S. Northern
Command.
On November 17, 2005, the Committee held a public hearing
on the nomination. (As of the filing of this report, the
hearing record had not been printed). Following the hearing
that day, the Committee favorably reported the nomination by
unanimous consent. The Senate confirmed General Meyerrose on
December 17, 2005, by voice vote.
G. John A. Rizzo, General Counsel, Central Intelligence Agency
On March 15, 2006, the President nominated John Rizzo to be
General Counsel of the CIA. The position of General Counsel had
become vacant on August 1, 2004, upon the resignation of Scott
Muller. During the period of the vacancy, Mr. Rizzo has served
as the Acting General Counsel. No hearing on the nomination was
scheduled during the 109th Congress. On December 9, 2006, upon
the final adjournment of the 109th Congress, the nomination was
returned to the President under the provisions of Rule 31.6 of
the Standing Rules of the Senate. Mr. Rizzo has been
renominated in the 110th Congress.
H. Kenneth L. Wainstein, Assistant Attorney General, National Security
Division, Department of Justice
As described earlier in this report, the National Security
Division at the Department of Justice and the position of
Assistant Attorney General for National Security were created
by Congress in the USA PATRIOT Improvement and Reauthorization
Act of 2005, which became law on March 9, 2006, in an effort to
coordinate national security investigations and prosecutions
within the Department of Justice. The Assistant Attorney
General serves as the Attorney General's principal legal
advisor on national security issues and is the primary liaison
for the Department of Justice to the DNI.
On March 13, 2006, the President nominated Kenneth L.
Wainstein, who was then the United States Attorney for the
District of Columbia, to fill the new position. Previously, he
had served in two capacities at the FBI, as the General Counsel
and as the Chief of Staff for the FBI Director. For
approximately nine years, he had served as an Assistant United
States Attorney in the District of Columbia.
Under a procedure established in the PATRIOT Act
Reauthorization, and incorporated in Senate Resolution 400 of
the 94th Congress on this Committee's jurisdiction and
procedures, nominations for the position are referred first to
the Judiciary Committee and then sequentially to this
Committee. The nomination was reported favorably by the
Judiciary Committee on June 15, 2006. It was then referred
sequentially to this Committee which held a public hearing on
May 16, 2006. (As of the filing of this report, the hearing
record had not yet been printed.) The Committee reported the
nomination favorably on June 22, 2006, by unanimous consent.
The Senate confirmed Mr. Wainstein on September 21, 2006, by
voice vote. Upon the confirmation, the new National Security
Division commenced operation.
I. Michael V. Hayden, Director, Central Intelligence Agency
As the head of the CIA, the Director is responsible, under
the Intelligence Reform Act of 2004, for collecting
intelligence through human sources, evaluating and
disseminating intelligence related to the national security,
and for providing overall direction and coordination of the
collection of national intelligence outside the United States.
The Act provides that the Director shall report to the DNI
regarding the activities of the CIA.
On May 8, 2006, the President nominated General Hayden,
then serving as the PDDNI, to fill the vacancy created by the
resignation of Porter Goss as Director of the CIA.
On May 18, 2006, the Committee held a public hearing on the
nomination. The Committee reported the nomination favorably on
May 23, 2006, by a vote of 12 to 3. The nominee's testimony and
responses to the Committee's questionnaire and prehearing
questions are printed in S. Hrg. 109-808. The Senate considered
and approved the nomination on May 26, 2006, by a vote of 78-
15.
J. Randall Fort, Assistant Secretary of State for Intelligence and
Research
The State Department Bureau of Intelligence and Research
(INR), a member of the Intelligence Community, was established
in 1946. It is not a collection agency; rather, it provides
intelligence support to the Secretary of State and other
Department policy makers on issues that fall within the purview
of the Department, as well as being the source of high level
analysis for the entire community.
On June 12, 2006, the President nominated Mr. Randall Fort
to be the Assistant Secretary of State for INR. From 1996
through 2006, he had been employed in various capacities by the
global investment bank Goldman Sachs. He previously served for
four years as Deputy Assistant Secretary for Functional
Analysis and Research at INR. From 1987-1989, he was the
Special Assistant to the Secretary for National Security and
Director of the Office of Intelligence Support at the
Department of the Treasury.
On July 27, 2006, the Committee held a public hearing on
the nomination. Mr. Fort's nomination was reported favorably by
the Committee on August 2, 2006, by voice vote. (As of the
filing of this report, the hearing record had not yet been
printed.) The Senate considered and approved the nomination on
August 3, 2006, by voice vote.
V. SUPPORT TO THE SENATE
The Committee undertook a number of activities to support
the Senate's deliberations. In addition to its unclassified
reports, the Committee has sought to support Senate
deliberations by inviting the participation of members outside
the Committee in briefings and hearings on issues of shared
jurisdiction or interest. The Committee has made available for
the Senate intelligence information regarding topics relevant
to current legislation. Members outside the Committee have
frequently sought and received intelligence briefings by
members of the Committee staff. Members have also requested and
received assistance in resolving issues with elements of the
Intelligence Community. Finally, the Committee routinely
invites staff from other Committees to briefings on
intelligence issues of common concern.
VI. APPENDIX
Summary of Committee Actions
A. Number of meetings
During the 109th Congress, the Committee held a total of
125 on-the-record meetings, briefings, and hearings, and
numerous off-the-record briefings. There were 13 oversight
hearings, 11 confirmation hearings, seven hearings on the
Intelligence Community budget, and four legislative hearings.
Of these 35 hearings, 12 were open to the public and 23 were
closed toprotect classified information pursuant to Senate
rules. The Committee also held 62 on-the-record briefings and 28
business meetings. Additionally, the Committee staff conducted 106 on-
the-record briefings and interviews and numerous off-the-record
briefings.
B. Bills and resolutions originated by the Committee
S. Res. 22--An original resolution authorizing expenditures
by the Select Committee on Intelligence.
S. 1266--A bill to permanently authorize certain provisions
of the Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct Terrorism
(USA PATRIOT) Act of 2001, to reauthorize a provision of the
Intelligence Reform and Terrorism Prevention Act of 2004, to
clarify certain definitions in the Foreign Intelligence
Surveillance Act of 1978, to provide additional investigative
tools necessary to protect the national security, and for other
purposes.
S. 1803--Intelligence Authorization Bill for Fiscal Year
2006.
S. 3237--Intelligence Authorization Bill for Fiscal Year
2007.
C. Bills referred to the Committee
S. 640--To amend title 10, United States Code, to provide
for the establishment of a unified combatant command for
military intelligence, and for other purposes.
S. 2175--To require the submittal to Congress of any
Presidential Daily Briefing relating to Iraq during the period
beginning on January 20, 1997 and ending on March 19, 2003.
S. 2408--To require the DNI to release documents captured
in Afghanistan or Iraq during Operation Desert Storm, Operation
Enduring Freedom, or Operation Iraqi Freedom.
S. 2660--To amend the National Security Act of 1947 to
require notice to Congress of certain declassifications of
intelligence information, and for other purposes.
S. 3536--To ensure oversight of intelligence on Iran, and
for other purposes.
S. 3968--Intelligence Community Audit Act of 2006.
D. Publications
S. Print 109-12--Rules of Procedure (Amended January 26,
2005).
S. Print 109-22--Rules of Procedure (Amended March 15,
2005).
S. Report 109-85--Report to accompany S. 1266.
S. Hrg. 109-61--Current and Projected National Security
Threats to the United States (February 16, 2005).
S. Report 109-142--Report to Accompany S. 1803.
S. Hrg. 109-79--Nomination of Ambassador John D. Negroponte
to be Director of National Intelligence.
S. Hrg. 109-241--Nomination of Vice Admiral John Scott Redd
to be Director, National Counterterrorism Center (July 21,
2005).
S. Hrg. 109-242--Nomination of Benjamin A. Powell to be
General Counsel of the Office of the Director of National
Intelligence (July 19, 2005).
S. Hrg. 109-269--Nomination of Janice B. Gardner to be
Assistant Secretary of the Treasury for Intelligence and
Analysis (June 16, 2005).
S. Report 109-259--Report to accompany S. 3237, FY 2007
Intelligence Authorization Bill.
S. Hrg. 109-341--USA PATRIOT Act hearings (April 19, April
27, and May 24, 2005).
S. Hrg. 109-270--Nomination of Lieutenant General Michael
V. Hayden, to be Principal Deputy Director of National
Intelligence.
S. Report 109-331--Report of the SSCI on Postwar Findings
about Iraq's WMD Programs and Links to Terrorism and How They
Compare with Prewar Assessments.
S. Report 109-330--Report of the SSCI on the Use by the
Intelligence Community of Information Provided by the Iraqi
National Congress.
S. Hrg. 109-808--Nomination of General Michael V. Hayden,
to be Director of the Central Intelligence Agency.
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