[Senate Report 111-6]
[From the U.S. Government Printing Office]
111th Congress Report
1st Session SENATE 111-6 _______________________________________________________________________
REPORT
OF THE
SELECT COMMITTEE ON INTELLIGENCE
UNITED STATES SENATE
covering the period
JANUARY 4, 2007
to
JANUARY 2, 2009
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
March 9, 2009.--Ordered to be printed
----------
U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON : 2009
SELECT COMMITTEE ON INTELLIGENCE
DIANNE FEINSTEIN, California, Chairman
CHRISTOPHER S. BOND, Missouri, Vice Chairman
JOHN D. ROCKEFELLER IV, West ORRIN HATCH, Utah
Virginia OLYMPIA J. SNOWE, Maine
RON WYDEN, Oregon SAXBY CHAMBLISS, Georgia
EVAN BAYH, Indiana RICHARD BURR, North Carolina
BARBARA A. MIKULSKI, Maryland TOM COBURN, Oklahoma
RUSSELL D. FEINGOLD, Wisconsin JAMES RISCH, Idaho
BILL NELSON, Florida
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
David Grannis, 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:
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
PREFACE
The Select Committee on Intelligence submits to the Senate
this report on its activities from January 4, 2007 to January
2, 2009. This report will include references to activities
underway at the conclusion of the 110th Congress that the
Committee expects to continue into the future.
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 110th Congress. In particular, we acknowledge
the leadership of Senator John D. Rockefeller IV who served as
Chairman during the 110th Congress and Vice Chairman from 2003
through 2006. Senator Rockefeller has stepped down as Chairman
but will continue his service on the Committee. We take special
note of those of our colleagues who have completed their
service on the Committee upon their retirement from the Senate.
Senator John Warner served on the Committee from 1987 through
1994, including as our Vice Chairman in 1993 and 1994, and then
from 2003 through 2008. Senator Chuck Hagel served on the
Committee from 2003 through 2008. Their commitment to the work
of the Committee and their contribution to a strong
Intelligence Community are appreciated.
We are also grateful for the work of all members of the
Committee's staff during the 110th Congress. Their hard work
and professionalism were indispensable to the Committee's
efforts to meet its responsibilities.
Dianne Feinstein, 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......................................................1
A. FISA Amendments Act of 2008............................... 1
1. Background to the Protect America Act of 2007 and the
FISA Amendments Act of 2008............................ 1
2. The Protect America Act of 2007....................... 3
3. The FISA Amendments Act of 2008....................... 3
B. Intelligence Authorization Bills for 2007, 2008, and 2009. 6
C. Implementing Recommendations of the 9/11 Commission Act of
2007....................................................... 10
1. Section 601: Declassification of the Total Amount
Appropriated for National Intelligence................. 11
2. Sections 602 and 604: Public Interest Declassification
Board.................................................. 12
3. Section 603: Structure of Congressional Oversight..... 13
4. Section 605: Public Release of Declassified Executive
Summary of CIA Inspector General 9/11 Accountability
Report................................................. 13
D. National Defense Authorization Act for Fiscal Year 2008... 14
E. Inspector General Reform Act of 2008...................... 16
F. Administration Views on Bills Referred to the Intelligence
Committee.................................................. 16
1. General Accountability Office Participation in
Intelligence Community Audits and Evaluations.......... 17
2. Detention and Interrogation........................... 18
G. Committee Views on Law of the Sea Convention.............. 18
H. Amendment of Senate Resolution 400 (94th Congress)........ 19
III. Oversight Activities............................................20
A. Hearings and Briefings.................................... 20
B. Study Groups.............................................. 21
1. Iran Intelligence Collection and Analysis............. 21
2. Terrorist Safehavens.................................. 21
3. Clandestine Human Source Intelligence (HUMINT)........ 22
4. Terrorist Ideology.................................... 22
5. China................................................. 23
6. Cyber Security........................................ 23
C. Committee Inquiries and Reviews........................... 24
1. Inquiry into the Prewar Intelligence Assessments on
Iraq................................................... 24
2. Electronic Surveillance............................... 25
a. President's Surveillance Program.................. 25
b. Transition to FISC Orders in 2007................. 26
c. Oversight of Implementation of the Protect America
Act of 2007........................................ 26
d. Oversight of Implementation of the FISA Amendments
Act of 2008........................................ 26
e. Allegation of Improper Intelligence Activities at
Fort Gordon, GA.................................... 27
3. Iraq.................................................. 27
4. Information Security in the Intelligence Community.... 28
5. Research and Development.............................. 28
6. The ODNI and Revision of E.O. 12333................... 29
7. Consideration of Supplemental Requests................ 30
8. Information Sharing................................... 31
a. Information Technology............................ 31
b. Information Security.............................. 32
9. Attorney General Guidelines........................... 32
10. FBI Intelligence Transformation...................... 34
11. IC Counterterrorism Analysis and Operations.......... 35
12. Covert Action........................................ 35
13. CIA Presidentially Directed Growth................... 36
14. CIA Lessons Learned Program.......................... 36
15. Oversight of Department of Homeland Security
Intelligence Activities................................ 37
16. Defense Intelligence Officers........................ 38
17. Armed Forces Medical Intelligence Center............. 38
18. Defense Counterintelligence and HUMINT Center........ 39
19. CIA Interrogation Tapes.............................. 39
D. Financial Accounting, Inspectors General, and Audits...... 39
1. IC Compliance with Federal Financial Accounting
Standards.............................................. 40
2. Oversight of Intelligence Community Inspectors General 41
3. Audits................................................ 42
a. Document Exploitation............................. 42
b. Compartmented Program............................. 43
c. Intelligence Community Acquisition Processes...... 43
IV. Nominations.....................................................44
A. J. Michael McConnell, Director of National Intelligence... 45
B. John A. Rizzo, General Counsel, Central Intelligence
Agency..................................................... 45
C. Donald M. Kerr, Principal Deputy Director of National
Intelligence............................................... 46
D. Michael E. Leiter, Director of the National
Counterterrorism Center.................................... 47
E. J. Patrick Rowan, Assistant Attorney General for National
Security, Department of Justice............................ 47
V. Support to the Senate...........................................48
VI. Appendix........................................................49
I. INTRODUCTION
The Committee's work in the 110th Congress was shaped, in
large part, by events that occurred in late 2006 and early
2007.
After CIA detainees were transferred to Guantanamo in
September 2006, information about the CIA's detention program,
which had previously been restricted to the Chairman and Vice
Chairman, was briefed to the entire membership of the
Committee. In January 2007, during the first month covered by
this report, President Bush nominated J. Michael McConnell to
be the second Director of National Intelligence (DNI),
replacing the first DNI, John D. Negroponte, who was nominated
to be the Deputy Secretary of State.
Also in January 2007, Attorney General Gonzales informed
the Judiciary and Intelligence Committees that, as a result of
a recent Foreign Intelligence Surveillance Court ruling,
electronic surveillance that had been conducted under the
President's Terrorist Surveillance Program (TSP) would now be
conducted under court authorization. Then, in March 2007,
Chairman Rockefeller and Vice Chairman Bond commenced efforts
with the Attorney General and DNI McConnell, whom the Senate
had confirmed in February, to consider amendments to the
Foreign Intelligence Surveillance Act (FISA).
The Committee's expanded knowledge of the CIA's detention
program, and evolving circumstances concerning foreign
intelligence surveillance matters, combined with priorities of
the new DNI, and ever present and challenging intelligence
issues relating to Iran, North Korea, Afghanistan and Pakistan,
and Iraq, all served as the basis of important undertakings of
the Committee during the 110th Congress.
II. LEGISLATION
A. FISA Amendments Act of 2008
The enacting of amendments to the Foreign Intelligence
Surveillance Act was a central part of the Committee's
legislative activities during the 110th Congress.
1. Background to the Protect America Act of 2007 and the FISA
Amendments Act of 2008
In December 2005, President Bush acknowledged the existence
of a presidential electronic surveillance program that was
being operated outside of the Foreign Intelligence Surveillance
Act. The program, which came to be known as the President's
Terrorist Surveillance Program, was described as authorizing
the National Security Agency (NSA) to intercept international
communications into and out of the United States of persons
linked to al Qaeda or related terrorist organizations. In
January 2006, the Department of Justice (DOJ) released a paper
entitled ``Legal Authorities Supporting the Activities of the
National Security Agency Described by the President.'' The
paper addressed, in an unclassified form, DOJ's view of the
legal basis for the activities acknowledged by the President.
During 2006, dozens of lawsuits were filed challenging the
legality of the President's program, including actions for
damages against telecommunications companies alleged to have
participated in the program. Both Houses of Congress also
considered bills related to the President's program during
2006, but none of the legislation was enacted.
In January 2007, soon after the 110th Congress convened,
Attorney General Gonzales wrote to the Senate and House
Judiciary and Intelligence Committees that a judge of the
Foreign Intelligence Surveillance Court (FISC) had issued
orders authorizing the Government to target for collection
international communications into or out of the United States
where there is probable cause to believe that one of the
parties to the communication is a member of al Qaeda or a
related terrorist organization. The letter advised the
committees that as a result of the FISC order the electronic
surveillance that had been occurring as part of the TSP would
now be conducted with FISC approval. It further advised them
that the President had determined not to reauthorize the TSP
when then-current authorizations expired.
The decision to transfer collection from presidential to
FISC authority did not resolve, however, whether legislation
was needed both to modernize FISA and to address the many
lawsuits brought against private carriers for alleged
participation in the President's program. In light of that, in
March 2007, Chairman Rockefeller and Vice Chairman Bond
notified Attorney General Gonzales of their intention to
address those questions. To that end, they requested that the
Administration submit a formal proposal for legislation. The
Director of National Intelligence submitted a proposal in April
2007 to amend the collection authorities of FISA and also to
provide immunity from lawsuits arising out of the TSP.
On May 1, 2007, the Committee held a public hearing to
enable the Administration to explain as openly as possible why
the legislation it was proposing should be enacted. The full
record of that hearing, which the Committee entitled
``Modernization of the Foreign Intelligence Surveillance Act,''
is printed in S. Hrg. 110-399. DNI McConnell and Kenneth
Wainstein, Assistant Attorney General for National Security,
testified. Statements for the record were also received, posted
on the Committee's website, and printed in the published
hearing record from the following: Kevin Bankston, Electronic
Frontier Foundation; James Dempsey, Center for Democracy and
Technology; Bruce Fein, former Department of Justice official;
Caroline Frederickson, American Civil Liberties Union; David
Kris, former Department of Justice official; Kate Martin and
Lisa Graves, Center for National Security Studies; Suzanne
Spaulding, former Central Intelligence Agency and House and
Senate Intelligence Committee counsel; and K.A. Taipale, Center
for Advanced Studies in Science and Technology Policy. The
Committee also held classified hearings and received classified
information through briefings, interviews, written questions,
and the examination of documents. See S. Rep. No. 110-209, at 2
(2007).
2. The Protect America Act of 2007
The timetable for considering FISA legislation was affected
by two circumstances in the late spring and early summer of
2007.
First, at the end of May 2007, the Intelligence Community
(IC) brought to the Committee's attention a ruling by the FISC
that had an effect on the collection of foreign intelligence.
In the regular 90-day cycle of reauthorizations by the FISC of
electronic surveillance orders, a judge of that court, on
considering in April 2007 an application to renew the orders
issued in January 2007, issued a ruling that the DNI later
described as significantly diverting NSA analysts from their
counterterrorism mission to provide information to the Court.
In late July 2007, the DNI informed Congress that the decision
of the second FISA judge had led to degraded capabilities in
the face of a heightened terrorist threat environment. Second,
the Committee had not yet succeeded in obtaining access to
documentation--namely, the presidential authorizations for the
program and the legal opinions of the Department of Justice
which supported those authorizations--the Committee had
repeatedly requested for its consideration of legislation on
immunity for telecommunication companies.
These circumstances led to a decision to separate the
question of an immediate, short term measure on intelligence
collection from that of a longer term measure on both FISA
modernization and immunity for telecommunication companies that
had participated in the program. On July 27, 2008, the Director
of National Intelligence sent an interim legislative proposal
to Majority Leader Harry Reid, Minority Leader Mitch McConnell,
Speaker Nancy Pelosi, and Minority Leader John Boehner. The DNI
stated that the interim proposal significantly narrowed his
earlier legislative request and that it did not include
liability protection for those who were alleged to have
assisted the Government following September 11, 2001. On August
3, 2007, the Senate adopted S. 1927, the Protect America Act of
2007 (PAA), sponsored by Minority Leader Mitch McConnell and
Vice Chairman Christopher S. Bond, which the House passed the
following day and the President signed into law as Pub. L. 110-
55. The PAA authorized the DNI and the Attorney General to
acquire foreign intelligence concerning persons outside the
United States if the acquisition involved the assistance of a
communications provider and a significant purpose of the
collection was the acquisition of foreign intelligence. The PAA
was to sunset after 180 days, which the Congress subsequently
extended for 15 days until February 16, 2008 (Pub. L. 110-182);
notwithstanding the sunset, pursuant to the PAA, authorizations
under it remained in effect for a year from their issuance. The
PAA did not address the question of immunity for participation
in the TSP.
3. The FISA Amendments Act of 2008
On October 9, 2007, the Committee gained access to the
presidential authorizations and supporting DOJ opinions for the
TSP. After a Committee business meeting at which it acted on
seven amendments, the Committee by a vote of 13-2 favorably
reported on October 26 an original bill, S. 2248, the FISA
Amendments Act of 2007, with an accompanying report, S. Rep.
No. 110-209, that contained additional and minority views.
Under the terms of S. Res. 400 (1976), the Committee on the
Judiciary obtained sequential referral of the bill, which it in
turn reported on November 16, 2007, with a report--S. Rep. No.
110-258--that was filed on January 22, 2008.
There were three rounds of Senate floor debate on cloture,
amendments, and passage: 153 Cong. Rec. (Dec. 14-17, 2007); 154
Cong. Rec. (Jan. 23-Feb.12, 2008) (including a managers'
amendment in the form of a complete substitute, agreed to on
January 24, 2008); and 154 Cong. Rec. (June 25 and July 8-9,
2008). On February 12, 2008, the Senate passed S. 2248 by a
vote of 68-29, which it sent to the House as an amendment to
H.R. 3773, the House-passed FISA bill. On March 14, 2008, the
House, by a vote of 213-197, voted to return H.R. 3773 to the
Senate with an amendment. On June 20, 2008, following an
agreement reached without a formal conference, the House, by a
vote of 293-129, passed a new bill, H.R. 6304, which contained
a complete compromise of the differences between the measures
that each House had passed earlier. On July 9, by a vote of 69-
28, the Senate joined in passing H.R. 6304. During debate on
the bill, the Chairman and Vice Chairman of this Committee each
placed in the Congressional Record sectional analyses of the
Act. Those statements built on the Committee's analysis of S.
2248 in its October 2007 report with changes to reflect Senate
floor action on S. 2248 and the compromises embodied in H.R.
6304: 154 Cong. Rec. S6129-35 (daily ed., June 25, 2008)
(Chairman Rockefeller); id., S6387-94 (daily ed., July 8, 2008)
(Vice Chairman Bond); see also id., S6404-6405 (daily ed., July
8, 2008) (Chairman Rockefeller); id., S6471 (daily ed., July 9,
2008) (colloquy between Chairman Rockefeller and Vice Chairman
Bond). President Bush signed the bill into law, as Pub. L. 110-
261, on July 10, 2008. 44 Weekly Comp. Pres. Doc. 975.
The FISA Amendments Act of 2008 (FAA) addresses two
principal challenges. First, looking forward, it provides for
the targeting of persons reasonably believed to be located
outside the United States, under a system of judicial and other
oversight that is intended to protect the privacy and civil
liberties of U.S. citizens and permanent residents. Second,
looking back, it provides protection by way of immunity to
electronic communication service providers who provided
assistance to the Intelligence Community between September 11,
2001, and the conclusion of the President's program in January
2007, upon receiving written assurances that the program had
been authorized by the President and determined to be lawful.
Additionally, the Act establishes procedures for protecting
service providers who have provided in the past, or provide in
the future, assistance to the Intelligence Community in
accordance with orders of the FISC or written certifications of
the Attorney General under specified provisions of Title 18.
The Act has no effect on any litigation against government
officials in relation to the President's program and provides
for a thorough review of and report on the President's program
by Inspectors General with relevant jurisdiction.
Title I of the FISA Amendments Act of 2008
establishes a new Title VII of FISA on foreign intelligence
collection targeted against persons reasonably believe to be
located outside of the United States.
Section 702 replaces the temporary authority of
the Protect America Act by authorizing collection of foreign
intelligence in the United States with the assistance of
electronic communication service providers that is targeted
against non-U.S. persons reasonably believed to be outside the
United States. The PAA had authorized collection ``concerning''
persons reasonably believed to be located outside the U.S.
Section 702 eliminates the vagueness associated with the word
``concerning'' and instead authorizes the ``targeting'' of
persons. The PAA had not provided for judicial review of
minimization procedures; section 702 provides for that review.
It also establishes a series of limitations on collection to
ensure that surveillance under section 702 is not directed at
persons within the United States or at U.S. persons inside or
outside of the United States. The judicial review of targeting
and minimization procedures is to occur prior to the
commencement of collection under a DNI and Attorney General
authorization unless they determine that exigent circumstances
exist. The ground for exigent circumstances is whether, without
immediate implementation, intelligence important to national
security may be lost or not timely acquired. Section 702
modifies the procedures for judicial review, both in the form
of enforcement petitions against non-complying carriers and
their petitions for judicial review, of directives issued to
carriers by the DNI and the Attorney General. It also enhances
oversight by Inspectors General and the House and Senate
Intelligence and Judiciary Committees.
Section 703 governs the targeting of U.S. persons
who are reasonably believed to be outside the United States
when the acquisition of foreign intelligence is conducted
inside the United States. It establishes procedures, drawn from
Titles I and III of FISA, which provide for renewable FISC
determinations that there is probable cause to believe that the
U.S. person is a foreign power or an agent, officer, or
employee of a foreign power.
Section 704 governs other acquisitions that target
U.S. persons outside the United States. It addresses any
targeting of a U.S. person outside of the United States under
circumstances in which that person would have a reasonable
expectation of privacy and a warrant would be required if the
acquisition were conducted in the United States. It thus covers
not only communications intelligence but the physical search of
a home or office of a U.S. person by an element of the U.S.
Intelligence Community outside of the United States. For the
first time, in accordance with section 704, any targeting of a
U.S. person outside the United States now requires a renewable
90-day FISC determination that there is probable cause to
believe that the U.S. person is a foreign power or an agent,
officer, or employee of a foreign power.
The FAA, in section 102, reiterates that FISA and
designated chapters of Title 18 of the United States Code are
the exclusive means by which electronic surveillance and
interception of certain communications may be conducted and
provides that only an express authorization may be an
additional exclusive means for electronic surveillance or
domestic interception.
The FAA provides for the sunset of these
authorities on December 31, 2012, so that Congress and the
Executive must review them before the end of the term of the
current President.
Title II of the FISA Amendments Act of 2008
establishes a new Title VIII of FISA on the ``Protections of
Persons Assisting the Government.'' Section 802 establishes
procedures for implementing statutory defenses. No civil action
may lie or be maintained against a person for providing
communications information or access to an IC element if the
Attorney General certifies one of five things. Three of the
grounds for certification are that the assistance was provided
pursuant to a FISC order, a certification under Title 18 of the
U.S. Code, or a directive under the PAA or FAA. The fourth
ground is related specially to the President's program. It
authorizes an immunity certification for actions against a
carrier for the provision of assistance to the Intelligence
Community in connection with an intelligence activity
authorized by the President between September 11, 2001 and
January 17, 2007, that was designed to detect or prevent a
terrorist attack against the U.S., and for which there was a
written request or directive that the activity was authorized
by the President and determined to be lawful. The fifth ground
for a certification is that the defendant in a lawsuit had not
provided the alleged assistance. The court is to give the
certification effect unless it determines that the
certification is not supported by substantial evidence. In
making that determination, the court may review the written
requests or directives to carriers, among other materials.
While classified material shall be considered in camera,
section 802 protects the opportunity of plaintiffs to take part
in the briefing and argument of legal issues. The underlying
premise of the new Title VIII is that carriers who responded to
the request for assistance after September 11, upon receiving
written high-level representations of authorization and
legality, should not be subject to liability for their
assistance during that period. The Committee also determined
that the Intelligence Community cannot obtain the intelligence
it needs without assistance from electronic communication
service providers, and expressed in its report the concern that
without retroactive immunity the private sector might be
unwilling to cooperate with lawful Government requests in the
future without unnecessary court involvement and protracted
litigation. Nevertheless, in the future, as the Committee
explicitly admonishes in its report, the Government and
carriers should adhere to the precise statutory requirements
for surveillance assistance. Nothing in Title VIII diminishes
any right to relief from Government parties.
Title III of the FISA Amendments Act of 2008
provides for a comprehensive review, within the oversight
authority and responsibility of each, by Inspectors General
whose departments or IC elements participated in the TSP. A
final report in unclassified form, but which may include a
classified annex, shall be submitted to the House and Senate
Intelligence and Judiciary Committees within a year (July 10,
2009) of the enactment of the FISA Amendments Act of 2008.
B. Intelligence Authorization Bills for 2007, 2008, and 2009
Our last biennial report observed that the 109th Congress
was the first since establishment of the Intelligence Committee
in the 94th Congress which did not enact an Intelligence
Authorization. S. Rep. No. 110-57, at 3. Unfortunately, the
110th Congress fared no better.
The Committee's first legislative endeavor in the 110th
Congress was to attempt to revive the fiscal year 2007 bill by
again reporting it to the Senate. S. 372; S. Rep. No. 110-2
(Jan. 24, 2007). After a sequential report by the Committee on
Armed Services, S. Rep. No. 110-5 (2007), the Senate invoked
cloture on a motion to proceed to consideration of the bill,
but on April 16, 2007, by a vote of 41-40, cloture was not
invoked on the bill itself. 153 Cong. Rec. S 4471-72 (daily
ed.). During debate on April 16 and 17, amendments were offered
and a number were agreed to by unanimous consent. After a
motion to reconsider the vote by which cloture was not invoked,
cloture again failed, by a vote of 50-45. 153 Cong. Rec. S 4580
(daily ed., Apr. 17, 2007). The bill was returned to the
calendar and efforts to pass a fiscal year 2007 authorization
ended.
In the first months of both 2007 and 2008, the Committee
conducted its annual review of the President's budget
recommendations for the civilian and military agencies and
departments comprising the Intelligence Community for fiscal
years 2008 and 2009. These reviews included the National
Intelligence Program and the Military Intelligence Program
(concerning which the Committee makes recommendations to the
Senate Armed Services Committee).
The intelligence entities covered by the annual reviews
included the Office of the Director of National Intelligence
(ODNI), the Central Intelligence Agency (CIA), the Defense
Intelligence Agency (DIA), the NSA, the National Geospatial-
Intelligence Agency (NGA), the National Reconnaissance Office
(NRO), the intelligence capabilities of the military services
and the Coast Guard, 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 reviews in 2007 and 2008, the Committee held
closed budget hearings at which senior IC officials testified.
During briefings at the Committee and on site at IC agencies,
Committee staff members, designated as budget monitors for
particular IC elements, evaluated detailed budget
justifications submitted by the Executive Branch. On the basis
of those reviews, the Committee prepared a classified annex to
each annual bill and report. Each annex contained a classified
schedule of appropriations and classified directions to IC
elements that addressed a wide range of issues identified
during the annual budget reviews and other Committee oversight
activities.
While these annual budget reviews were in progress, the
Committee also reviewed the Administration's proposals for the
public part of each annual bill, consisting of new or amended
legislative authority requested by the IC. The Committee also
considered other legislative proposals originating in the
Committee, notably provisions that had been included in the
proposed fiscal year 2007 bill. From this part of its work, the
Committee produced an original bill and also a public report
for each of fiscal years 2008 and 2009. The reports explained
the provisions of each bill and also provided comments,
including directions to the IC, which could be stated in an
unclassified form.
As a result of this extensive process in 2007 and again in
2008, the Committee reported two Intelligence Authorizations
bills with accompanying reports and classified annexes, one for
fiscal year 2008 and the second for fiscal year 2009.
On May 31, 2007, the Committee reported S. 1538, its
proposed Intelligence Authorization Act for Fiscal Year 2008,
accompanied by S. Rep. No. 110-75 (2007). The bill was
sequentially referred to the Armed Services Committee and then
reported by that Committee. S. Rep. No. 110-92 (2007). On
October 3, 2007, the Senate passed S. 1538 with a managers
amendment and sent it to the House in the form of an amendment
to H.R. 2082, the fiscal year 2008 authorization bill passed by
the House of Representatives. A conference committee reported
H.R. 2082 on December 6, 2007. H.R. Rep. No. 110-478 (2007). By
a vote of 222-199, the House agreed to the conference report on
December 13, 2007. 153 Cong. Rec. H15426 (daily ed.). On
February 13, 2008, by a vote of 51-45 the Senate also approved
the conference report. 154 Cong. Rec. S 937 (daily ed.). On
March 8, 2008, the President vetoed H.R. 2082 by returning it
to the House with his objections. 154 Cong. Rec. H1419 (daily
ed.). By a vote of 225-188, the House failed to override. 154
Cong. Rec. H1502 (daily ed., March 11, 2008).
On May 8, 2008, the Committee reported S. 2996, its
proposed Intelligence Authorization Act for Fiscal Year 2009,
accompanied by S. Rep. No. 110-333 (2008). S. 2996 included
many of the legislative provisions that had been in the
conference report on the fiscal year 2008 bill. No Senate floor
action occurred on the 2009 bill, which expired at the end of
the 110th Congress together with H.R. 5959, the Intelligence
Authorization Act for Fiscal Year 2009 that had passed the
House on July 16, 2008.
Thus, the 110th Congress became the second Congress since
the 94th not to enact an intelligence authorization bill. For
three straight fiscal years, 2006, 2007, and 2008, and for at
least the beginning of fiscal year 2009, authorization for IC
activities has been provided by stop-gap provisions in the
appropriations acts for the Department of Defense (and similar
provisions in other appropriations) which provide that funds
appropriated by them are deemed to be authorized during the
fiscal year until enactment of an intelligence authorization
act for that year (e.g., Consolidated Security, Disaster
Assistance, and Continuing Appropriations Act, 2009, Pub. L.
No. 110-329, Section 8080).
As the Committee noted in its 109th Congress report, the
effect of failure to complete action on an intelligence
authorization bill is not limited to the authorization of
appropriations. Apart from the rare major restructuring of the
Intelligence Community that occurred by virtue of the
Intelligence Reform and Terrorism Prevention Act of 2004 (Pub.
L. 108-458), and for occasional intelligence items that are
enacted in other laws (see parts II(C)-(E) below), annual
intelligence authorization acts have been the regular means for
adjusting, as needs are recognized, the statutory authorities
of the IC. The last time that occurred on a regular basis was
four years ago in the enactment in December 2004 of the
Intelligence Authorization Act for Fiscal Year 2005.
The Committee's legislative proposals during the 110th
Congress are explained in detail in our reports on the 2007,
2008, and 2009 bills and in the conference report on the 2008
bill. The principal recommendations included:
Measures to enhance the authority and flexibility
of the DNI to manage personnel. These included added authority
over IC personnel levels, the movement of personnel to where
they are needed through details from one IC element to another
IC element, and enhanced pay for critical positions such as
those requiring special technical abilities. In its 2008 and
2009 bills, the Committee supported increasing the DNI's
ability to manage IC personnel as part of a community, such as
by extending scholarship programs to IC elements that now lack
them. This enhanced management authority, however, was not
contained in the conference report on the 2008 bill, and will
require further study in the House. The enhanced personnel
management authority was accompanied by provisions to improve
IC personnel planning, to account for the number and use of the
Intelligence Community's burgeoning number of contractors, and
to facilitate the replacement of contractors with regular IC
employees.
Measures to improve information sharing by
authorizing interagency funding to quickly address deficiencies
or needs that arise in intelligence information access or
sharing capabilities, and also to improve the DNI's ability to
finance national intelligence centers and other means to
address intelligence issues through coordinated efforts in the
Intelligence Community.
Acquisition reforms, including vulnerability
assessments of major systems, establishment of requirements for
a business enterprise architecture to enhance IC business
system modernization, and a measure to curb excessive cost
growth of major systems.
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 Intelligence Community and
the relationships among the elements of it, and to report to
the DNI and Congress. The President's veto message on the
fiscal year 2008 bill asserted that the office is duplicative
and unnecessary, stating that each component already has an
Inspector General and that the existing IG for the ODNI has
been vested with all legal powers of any DNI. In again
reporting the IG provision as part of its proposed 2009 bill,
the Committee reaffirmed its conviction in the importance of an
independent, statutory Inspector General for the IC. The IG
position created by the provision would not duplicate the
existing ODNI position, which would be replaced by it. The
provision has been carefully refined, in conjunction with the
Senate Armed Services Committee, to avoid duplication or
conflict with any IG in the Department of Defense. A statutory
IG for the Intelligence Community is especially needed to
address issues that run across the jurisdiction of individual
IC elements and that cannot be fully addressed by Inspectors
General for individual IC elements whose jurisdictions are
bounded by the elements in which they serve.
In recognition of the critical responsibilities of
the Directors of the NSA, NRO, and the NGA, a requirement that
their appointments by the President be confirmed by the Senate.
In an effort to reach a compromise with the Executive Branch,
the conference report on the 2008 bill limited this to the
confirmation of the NSA and NRO Directors. In his veto message,
the President nevertheless listed the provision among his
objections, asserting that the provision would subject the
filling of the positions to harmful delays and risk injecting
political pressure into positions of technical expertise and
public trust. After consideration of the President's objection,
in reporting its fiscal year 2009 bill the Committee returned
to its original view that all three positions should be subject
to confirmation. Each official plays a critical role in the
national intelligence mission and spending by their agencies
comprises a significant portion of the entire intelligence
budget. In addition, as the conference report on the 2008 bill
states, the Committee is seeking that these positions be
subject to confirmation because of the important role each
plays. For NSA, that role includes ensuring that its
intelligence collection is consistent with the protection of
the civil liberties and privacy interests of U.S. persons; for
NRO, it includes ensuring that the NRO appropriately manages
its mission and the significant budget resources and mission
entrusted to it. With respect to the specter of confirmation
delays, the Committee has a record of expeditious, non-
political consideration of nominations to positions in the IC.
An increase in the penalties for the disclosure of
the identity of undercover intelligence officers and agents.
The conference report on the fiscal year 2008 bill also
included a provision, added during conference, to prohibit the
use of any interrogation treatment or technique not authorized
by the United States Army Field Manual on Human Intelligence
Collector Operations (Army Field Manual) against any individual
in the custody or effective control of any element of the
Intelligence Community. While other provisions in the 2008 bill
were also listed in the veto message, the President's objection
to the Army Field Manual provision was the central objection in
the veto message. By a vote of 9-6, the Committee included this
provision in its fiscal year 2009 bill. The continuing dispute
over the provision was a contributing factor to the bill not
receiving floor consideration during the 110th Congress.
Minority views submitted with the Committee's report on the
2009 bill asserted that a better alternative to limiting
interrogation techniques would be to prohibit the use of
techniques that are explicitly banned by the Army Field Manual.
S. Rep. No. 110-333, at 79 (2008).
C. Implementing Recommendations of the 9/11 Commission Act of 2007
The Intelligence Reform and Prevention Act of 2004, Pub. L.
108-458, addressed many but not all recommendations in the 2004
report of the National Commission on Terrorist Attacks Upon the
United States. In the Implementing Recommendations of the 9/11
Commission Act of 2007 (9/11 Act), Pub. L. 110-53, Congress
enacted responses to a list of remaining unfulfilled
recommendations of the 9/11 Commission. Title VI of the 9/11
Act is entitled ``Congressional Oversight of Intelligence.''
The 9/11 Commission's report had stated: ``Of all our
recommendations, strengthening congressional oversight may be
among the most difficult and important.'' In addition to
provisions that respond to specific recommendations of the 9/11
Commission, Title VI contains other matters designed to augment
oversight and accountability.
In the Senate, primary responsibility for the 9/11 Act
(most of which addressed homeland security matters such as
incident response and transportation security) rested with the
Committee on Homeland Security and Governmental Affairs. With
regard to the IC matters addressed in Title VI, the Committee
on Homeland Security and Governmental Affairs worked closely
with this Committee, particularly in preparation for conference
with the House.
1. Section 601: Declassification of the total amount appropriated for
national intelligence
The 9/11 Commission had recommended that ``the overall
amounts of money being appropriated for national intelligence
and to its component agencies should no longer be kept
secret.'' In support of the recommendation, the Commission had
urged that ``when even aggregate categorical numbers remain
hidden, it is hard to judge priorities and foster
accountability.''
The Senate had sought, in S. 2845 of the 108th Congress,
its version of the Intelligence Reform and Terrorism Prevention
Act of 2004, to implement the 9/11 Commission recommendation by
requiring the declassification of the overall amounts
requested, authorized, and appropriated for national
intelligence. The Senate provision, however, was not included
in the conference agreement on the 2004 Act. This Committee
then sought legislation, as part of several annual intelligence
authorization bills, to require the President to disclose the
aggregate amount of funds requested for the National
Intelligence Program in the annual budget submission for the
program, the aggregate amount authorized, and the aggregate
amount appropriated. The Committee's proposals also would have
required the DNI to conduct a study on the advisability of
disclosing the aggregate amounts requested, authorized, and
appropriated for each of the 16 elements of the Intelligence
Community. See S. Rep. No. 110-2, at 5 (2007) (report on FY
2007 Authorization); S. Rep. No. 110-75, at 55 (2007) (report
on FY 2008 Authorization). These proposals became part of the
Senate's 9/11 bill.
The conference agreement adopted the Senate provision with
modifications. It required, in section 601 of the 9/11 Act,
that the DNI disclose the aggregate amount of funds finally
appropriated (but not the funds initially requested or
authorized) for the National Intelligence Program within 30
days of the end of the fiscal year. By limiting the disclosure
to a single amount, the amount appropriated for the entire
fiscal year-an amount that includes both regular and
supplemental appropriations--and not requiring disclosure of
amounts requested and authorized, the conference agreement
sought to avoid public speculation about intelligence programs
involved in differences between the President and Congress, or
the Senate and House, in enacting appropriations. The
conference agreement also deleted the study of further
declassification down to the level of the total amounts for
individual IC elements. Finally, the conference agreement
limited mandatory declassification to fiscal years 2007 and
2008. For fiscal years 2009 and after, the President may waive
or postpone disclosure by submitting to the congressional
intelligence committees, within 30 days of the end of a fiscal
year, a statement in unclassified form that disclosure would
damage national security and a further statement, which may be
classified, detailing the reasons. These requirements are set
forth in 50 U.S.C. 415c.
On October 30, 2007, the DNI implemented the top line
declassification provision of the 9/11 Act by disclosing that
the aggregate amount appropriated to the National Intelligence
Program for fiscal year 2007 was $43.5 billion. On October 28,
2008, the DNI publicly announced that the aggregate amount
appropriated for fiscal year 2008 was $47.5 billion.
Section 346 of the Committee's proposed authorization for
fiscal year 2009 (S. 2996; S. Rep. No. 110-333, at 19) would
have made mandatory disclosure of the top line appropriated for
that fiscal year and provided that the waiver authority in
section 601 of the 9/11 Act not apply until fiscal year 2010.
Whether to make disclosure for fiscal year 2009, and possibly
subsequent years, not subject to waiver is a matter for
consideration in the 111th Congress.
2. Sections 602 and 604: Public Interest Declassification Board
As described in its report on the intelligence
authorization act for fiscal year 2008, S. Rep. No. 110-75, at
6-7, the Committee was impeded in obtaining the assistance of
the Public Interest Declassification Board in reviewing several
Executive Branch classification decisions regarding Committee
reports on prewar intelligence about Iraq. The White House had
interpreted the Board's authorizing legislation to require
presidential approval for the Board to conduct a review at the
request of Congress. The Committee recommended, in section 308
of its proposed intelligence authorization bill for fiscal year
2008, S. 1538, that the Board be authorized to conduct reviews
upon receiving a congressional request, regardless of whether
the review is requested by the President. The Committee also
proposed that the life of the Board be extended for four years
until the end of 2012.
In section 602, the conference agreement on the 9/11 Act
incorporated, with minor technical changes, the Senate proposal
on the authority of the Public Interest Declassification Board
to conduct reviews upon receiving a congressional request as
well as the Senate proposal to extend the life of the Board.
Section 604 of the
9/11 Act provided for funding of the Board during fiscal year
2007.
During the 110th Congress, the Public Interest
Declassification Board issued a comprehensive report, including
recommendations, on declassification policies and programs
within the federal government: Improving Declassification, A
Report to the President from the Public Interest
Declassification Board (December 2007). The report is posted on
the National Archives website. While the main part of the
report concerns declassification programs and policies in the
Executive Branch, including matters that have been of concern
to the Committee such as the treatment of the President's Daily
Brief, the report also addresses the declassification of
congressional records that contain classified information
provided by the Executive Branch. As evidenced by the further
extension of the life of the Board, the work and reports of the
Public Interest Declassification Board are important to the
congressional oversight of declassification programs and
policies.
3. Section 603: Structure of congressional oversight
The 9/11 Commission made several recommendations about
congressional oversight.
In 2004, the Senate acted on one of the Commission's
oversight recommendations by eliminating, in S. Res. 445 of the
108th Congress, the eight-year term limit provision on
committee membership contained in the Committee's authorizing
resolution, S. Res. 400 of the 94th Congress. The 9/11
Commission urged that ``Members should serve indefinitely on
the intelligence committees, without set terms, thereby letting
them accumulate experience.''
In 2004, the Senate also sought to address a 9/11
Commission recommendation on the structure of oversight in the
Senate by providing in S. Res. 445 for an intelligence
subcommittee in the Committee on Appropriations. That
subcommittee, however, has not been established. The Commission
had reported in 2004 that it had considered and proposed two
alternatives to the present oversight structure in the House
and Senate: a joint committee modeled after the old Joint
Committee on Atomic Energy and separate committees in each
House that combine authorizing and appropriations powers.
Section 603 of the 9/11 Act set forth a Sense of the Senate
that the Committee on Homeland Security and Governmental
Affairs and this Committee should review the recommendations of
the 9/11 Commission on congressional oversight as well as other
suggestions and submit to the Senate recommendations for
carrying out reforms.
On November 13, 2007, this Committee held a public hearing
to receive testimony from members of the 9/11 Commission and
others. On March 6, 2008, fourteen members of the Committee
joined in a letter to the Senate leadership that the Senate
should adopt one of two means of implementing oversight reform.
One was to consolidate authorization and appropriations
authority in this Committee, an approach taken by S. Res. 375
in the 110th Congress. The other was to amend and implement the
determination made by the Senate in S. Res. 445 of the 108th
Congress to establish an intelligence subcommittee in the
Committee on Appropriations.
The Committee's letter to the Senate leadership (reprinted
at 154 Cong. Rec. S. 8419 (daily ed., Sept. 11, 2008)) offers
specific proposals to enhance coordination of intelligence
authorization and appropriation responsibilities, such as
placing on the appropriations subcommittee any Intelligence
Committee member who is on the Appropriations Committee and
making the Intelligence Committee Chairman and Vice Chairman ex
officio members of the subcommittee if they are not already on
it by virtue of Appropriations Committee membership. A
resolution implementing these proposals, S. Res. 655, was
submitted on September 11, 2008, and referred to the Committee
on Rules and Administration.
4. Section 605: Public release of declassified executive summary of CIA
Inspector General 9/11 accountability report
In its report for the 109th Congress, the Committee
described its efforts to obtain public release of a
declassified executive summary of a 2005 accountability report,
with respect to the Agency's pre and post-9/11 activities,
prepared by the CIA Inspector General in response to a
recommendation of the 2002 House and Senate Joint Inquiry Into
Intelligence Activities Before and After the Terrorist Attacks
of September 11, 2001 (S. Rep. No. 110-57, at 24-26).
In the 110th Congress, the Committee included a requirement
for the declassification of the executive summary of that IG
report in its authorization bill for fiscal year 2008 (S. 1538;
S. Rep. No. 110-75, at 27). The proposed requirement was also
included in the Senate version of the 9/11 Act, and became part
of the conference agreement on that act.
As enacted, Section 605 required that the CIA Director, not
later than 30 days after the enactment of the 9/11 Act, prepare
and publicly release the Executive Summary of the CIA Inspector
General report ``declassified to the maximum extent possible,
consistent with national security.'' Section 605 also required
the Director to submit to Congress a classified annex
explaining any redactions.
The Director released a declassified executive summary on
August 21, 2007. The summary and the Director's statement on
its release may be found on the CIA's website.
D. National Defense Authorization Act for Fiscal Year 2008
During the 110th Congress, the defense authorization bill
for fiscal year 2008 (S. 1547, the National Defense
Authorization Act for Fiscal Year 2008) that had been reported
by the Armed Services Committee was subsequently referred to
this Committee. The Intelligence Committee's report, S. Rep.
No. 110-25 (2007), addressed provisions on three matters: (1)
protection of classified information in the proceedings of
Combatant Status Review Tribunals; (2) IC responses to requests
of the House and Senate Committees on the Armed Services; and
(3) standards for disqualification from issuance of security
clearances by the Defense Department. Of the three, the second
and third matters appeared in some form in the final
legislation.
With respect to IC responses to requests of the
congressional armed services committees, S. 1547 sought to
establish rules on responses to requests by elements of the
Intelligence Community for documents or information. As enacted
in section 1079 of Pub. L. No. 110-181 (2008), the provision
requires the DNI, the Director of the National Counterterrorism
Center, and the head of any element of the Intelligence
Community to make available, not later than 45 days after
receiving a written request from the chairman or ranking member
of the Senate or House Armed Services Committee, any existing
intelligence assessment, report, estimate, or legal opinion
that relates to a matter within the jurisdiction of the
committee. It states that the DNI and other officials covered
by the section shall provide these documents unless the
President determines that the document or information shall not
be provided because the President is asserting a constitutional
privilege. Section 1079 became the subject of a presidential
signing statement that it would be construed ``in a manner
consistent with the constitutional authority of the
President.''
The Intelligence Committee's sequential report preceding
final enactment stated that it shared with the Armed Services
Committee the conviction that it is critically important that
the Intelligence Community provide to Congress the documents it
needs to perform its responsibilities. But, in the Intelligence
Committee's view, if there is a need for legislation on any
lack of timely response by the IC, the legislation should
address the problem comprehensively. The Intelligence Committee
opined that the Congress should not enact separate rules on
access to IC documents by its various committees outside of the
congressional intelligence committees.
The other matter addressed by S. 1547 that was included
(with changes) in the final legislation involved a proposed
repeal of a Title 10 provision on security clearances that had
been added in 2000. The underlying provision had disqualified
from being granted security clearances any active duty member
of the Armed Forces or officer or employee of the Department of
Defense (DOD) or a DOD contractor who fell into one of four
categories: (1) had been convicted and sentenced in any U.S.
court to a prison term of more than one year; (2) is an
unlawful user or is addicted to a controlled substance; (3) is
mentally incompetent as determined by a mental health
professional approved by the DOD; or (4) has been discharged
from the Armed Forces under dishonorable conditions.
Disqualification for conviction or dishonorable discharge could
be waived by the Secretary of Defense or the Secretary of a
military department. The DOD requested the provision be
repealed because, in its view, it unduly limited its ability to
manage its security clearance program and could create
unwarranted hardships for individuals who have rehabilitated
themselves as productive and trustworthy citizens.
This Committee, by a vote of 10-5, opposed the Armed
Services Committee proposal to repeal the Title 10 provision.
Our report expressed the concern that blanket repeal could lead
to unintended compromises or mishandling of national security
information. S. Rep. No. 110-125, at 4. Members of the
Committee who supported deferring to the views of the DOD and
the Armed Services Committee filed additional views, noting
that there is no comparable security clearance statute
applicable to any other individual department or agency and
that Congress recently had legislated in favor of the
implementation of uniform and consistent policies throughout
the Government. Id. at 6-7.
Following the sequential report and discussions with this
Committee, the Armed Services Committee produced a compromise
that was enacted as section 1072 of Pub. L. No. 110-181, which
adds section 3002 to the Intelligence Reform and Terrorism
Prevention Act of 2004, 50 U.S.C. 435b. The compromise limited
the absolute prohibition on security clearances, at any
classification level, to officers or employees of any federal
agency (not just the DOD) or of a federal agency contractor, or
active duty military personnel, who are unlawful users of a
controlled substance or addicts.
For U.S. agency officers or employees, military, or
contractor personnel who are incarcerated for not less than one
year on the basis of a U.S. court conviction and sentence,
dishonorably discharged, or determined in accordance with
approved adjudicative guidelines to be mentally incompetent,
the compromise provides, subject to waiver, for
disqualification from a limited set of security clearances,
namely, special access programs or sensitive compartmented
information, rather than for all security clearances.
E. Inspector General Reform Act of 2008
Within the Senate, the Inspector General Reform Act of 2008
was introduced by Senator McCaskill and reported by the
Committee on Homeland Security and Governmental Affairs. It was
signed into law on October 14, 2008 as Pub. L. 110-409. The
Committee on Homeland Security and Governmental Affairs
consulted with this Committee on provisions involving
Inspectors General (IGs) within the Intelligence Community.
The Act contains measures to strengthen the independence of
IGs throughout the Government. While various provisions do not
relate to the Intelligence Community (although they might serve
as a model for subsequent IC legislation), the Act's provisions
on compensation and the establishment of a Government-wide
council of IGs apply to particular IC IGs.
As reported to the Senate, section 4 increased the
compensation of statutory IGs to Executive Level 3 plus 3
percent and section 5 prohibited cash awards or bonuses to
those IGs. The Homeland Security Committee report explained the
importance of these related provisions. The compensation of
some IGs had depended on the award of bonuses by officials that
they oversee. While the report noted that presidentially-
appointed IGs had generally agreed to forego them, bonuses have
been an important part of the pay structure for IGs. S. Rep.
No. 110-262, at 4 (2008). The Act balances the prohibition
against bonuses with an improvement in compensation,
establishing the pay level of IGs at Executive Level 3 plus 3
percent. However, as the Act neared passage, these two
compensation reforms had not been applied to the CIA IG. With
the full support of this Committee, the bill was amended to
apply these important pay provisions to the CIA IG.
Section 11 of the Act establishes a Council of the
Inspectors General on Integrity and Efficiency to address
matters of integrity, economy, and effectiveness that transcend
individual government agencies. Section 11 makes the DNI IG and
the CIA IG statutory members of the Council. One function of
the Council is to develop plans for coordinated, government-
wide activities that include interagency and inter-entity
audits, inspections, and evaluations. The Act creates, within
the Council, an Integrity Committee which shall investigate
allegations of wrongdoing against an Inspector General or a
staff member of an IG Office.
F. Administration Views on Bills Referred to the Intelligence Committee
Rule 12.2 of the Committee's Rules of Procedure provides
that ``Unless otherwise ordered by them, measures referred to
the Committee shall be referred by the Chairman and Vice
Chairman to the appropriate department or agency of the
Government for reports thereon.'' Pursuant to this rule, during
the 110th Congress the Chairman and Vice Chairman made two
referrals for comments.
1. GAO Participation in Intelligence Community audits and evaluations
On January 30, 2007, the Chairman and Vice Chairman
referred to the DNI and the Comptroller General for comment S.
82, a bill referred to the Committee entitled the Intelligence
Community Audit Act of 2007. S. 82, which had been introduced
by Senator Akaka, would ``reaffirm'' the authority of the
Comptroller General to perform audits and evaluations of the
financial transactions, programs, and activities of the
Intelligence Community. The bill proposed a number of
limitations on this authority including that the Comptroller
General may conduct an audit or evaluation of intelligence
sources or methods, or covert actions, only on the request of
one of the congressional intelligence committees or the House
or Senate majority or minority leader.
On March 7, 2007, the DNI responded to the Chairman and
Vice Chairman. The DNI stated that the approach of his office
has been to provide the General Accountability Office (GAO)
with appropriate assistance while protecting sources and
methods, and that the ODNI has occasionally sought the views of
GAO on appropriations matters and review of GAO reports.
However, ``[p]ursuant to obligations to protect intelligence
sources and methods, the IC has traditionally declined to
participate in GAO inquiries that evaluate intelligence
activities, programs, capabilities, and operations.'' The DNI
also expressed concern about the effect that GAO activities
could have on ``the existing relationship--based on comity and
mutual understanding--that has developed between the IC and the
Oversight Committees.'' A particular concern identified by the
DNI is that the Comptroller General might seek to carry out
work in the Intelligence Community beyond work directed by the
Congress or to do so at the request of committees that do not
have jurisdiction over IC activities. Overall, the DNI objected
that ``S. 82 has no provision for curbing such requests or
recourse for the IC in addressing the predictable drain on
resources.'' Consequently, ``S. 82 would have an impact on the
ability of the Intelligence Community to respond to
[Intelligence] Committee requests in a timely manner.''
In a letter dated March 1, 2007, the Comptroller General
expressed GAO's support for the bill. He stated that with
limited exceptions existing law provides GAO with ``clear audit
and access authority with respect to elements of the
Intelligence Community,'' but noted that the Department of
Justice has questioned GAO's authority. The letter described
the GAO's understanding of the history of the GAO's interaction
with the Intelligence Community. It cited the need, as
identified in various reports following 9/11, for ``major
business transformation'' in the Intelligence Community as one
area in which GAO could be of assistance to the Intelligence
Community. Subsequently, in testimony before the Committee on
Homeland Security and Governmental Affairs (HSGAC) on February
29, 2008, the Comptroller General expanded on his support for
S. 82. His full written testimony, under the heading of
``Intelligence Reform: GAO Can Assist the Congress and the
Intelligence Community on Management Reform Initiatives,'' is
posted on the websites of both HSGAC (with other testimony from
the hearing) and the GAO. Neither this Committee nor the full
Senate took any further action on S. 82.
2. Detention and interrogation
On August 7, 2008, the Chairman and Vice Chairman referred
to the Director of National Intelligence for comment three
bills on detention and interrogation: S. 3386, introduced by
the Vice Chairman; S. 3437, introduced by Senator Feinstein,
and cosponsored by the Chairman; and S. 1943, introduced by
Senator Kennedy. S. 3386 and S. 3437 had been referred to the
Intelligence Committee. S. 1943 had been referred to the
Judiciary Committee.
S. 3386, entitled the ``Limitations on Interrogation
Techniques Act of 2008,'' would bar subjecting anyone in the
custody or under the control of an IC element to any of a list
of interrogation techniques taken (with two modifications) from
prohibitions in the Army Field Manual. S. 3437, entitled
``Restoring America's Integrity Act,'' would bar any person in
the custody or under the control of an IC element from being
subjected to a treatment or technique of interrogation not
authorized by the Army Field Manual. It would require notice,
in a manner consistent with the practices of the U.S. Armed
Forces, to the International Committee of the Red Cross of an
IC detention. It would bar CIA interrogations by contractors,
requiring that all CIA interrogations be conducted by Agency
employees. S. 1943 would bar interrogation by any U.S.
Government agency that is not authorized by the Army Field
Manual and prohibit in statute the list of techniques taken
from the prohibitions in the Army Field Manual.
On October 3, 2008, the DNI replied. The DNI wrote that
``[a]s a general matter, we do not believe that further
legislation in this area is necessary.'' He asserted that the
Detainee Treatment Act of 2005 and the Military Commissions Act
of 2006 had been ``drafted and passed by Congress to allow the
Central Intelligence Agency (CIA) to continue a program for
interrogation of high-level terrorist leaders or facilitators
separate from the Department of Defense interrogation
programs.''
With respect to the future of the program, the DNI stated:
``Although the Administration does not believe that additional
legislation is necessary at this time, we are open to
discussing with the Committee the guidelines and restrictions
applicable to the program as a matter of both law and policy.
With respect to the proposal to require notice and access to
the International Committee of the Red Cross (ICRC) regarding
detainees who may be held by the CIA, the Department of State
has facilitated constructive discussions between the CIA and
the ICRC on these issues. We believe these discussions have
been constructive and will keep the Committee fully informed of
the progress of this dialogue.''
G. Committee Views on LAw of the Sea Convention
In September 2007, Chairman Rockefeller and Vice Chairman
Bond wrote to the Chairman and Ranking Member of the Committee
on Foreign Relations in connection with that Committee's
consideration of the Law of the Sea Convention. The purpose of
the letter was to provide their assessment, based on a closed
Intelligence Committee hearing in 2004 and the reconfirmation
in 2007 by the Secretary of State, Secretary of Defense, and
DNI of views that had been expressed to the Intelligence
Committee by their predecessors, on whether the Law of the Sea
Convention would have an adverse impact on U.S. intelligence
activities.
Senators Rockefeller and Bond concluded: ``the Law of the
Sea Convention neither regulates intelligence activities nor
subjects them to settlement procedures under the Convention. It
is therefore our judgment that accession to the Convention will
not adversely affect U.S. intelligence collection or other
intelligence activities.'' S. Hrg. 110-592, at 49-50 (2007)
(hearing record of Committee on Foreign Relation reprinting
Rockefeller-Bond letter). Their letter appended a letter from
the DNI that declassified closed session testimony by the
Director of Naval Intelligence before the Intelligence
Committee in 2004 that the Convention would not prohibit U.S.
maritime intelligence activities. Id. at 50.
H. Amendment of Senate Resolution 400 (94th Congress)
On January 30, 2007, the Committee unanimously reported an
original resolution, S. Res. 50, with an accompanying report,
S. Rep. No. 110-3, to amend the basic charter of the Committee,
S. Res. 400 of the 94th Congress (1976), in order to formally
align the jurisdiction of the Committee with changes made to
the structure of the Intelligence Community by the Intelligence
Reform and Terrorism Prevention Act of 2004. The resolution,
which the Senate agreed to on February 14, 2007, also made
several technical changes to S. Res. 400, all of which are
described in the Committee report.
The debate in 1976 on establishment of the Intelligence
Committee, which was resolved by adoption of S. Res. 400,
centered in large part on the allocation of jurisdiction
between the new committee and existing committees that had
exercised jurisdiction over elements of the Intelligence
Community. The Intelligence Committee was assigned jurisdiction
over the CIA and the Director of Central Intelligence. It was
also assigned jurisdiction over the intelligence activities of
all other departments and agencies, such as the NSA. In a
special provision on sequential referrals, however, S. Res. 400
recognized the continuing legislative interest of other Senate
committees in IC elements that are within departments that are
generally within the jurisdiction of those committees. By its
express language, the special sequential referral provision in
S. Res. 400 did not apply to matters pertaining to either the
CIA or the Director of Central Intelligence.
S. Res. 50 amended S. Res. 400 to apply these
jurisdictional principles to the ODNI and the DNI. As amended,
S. Res. 400 places matters concerning the ODNI, the DNI, the
CIA, and the Director of the CIA, within the core jurisdiction
of the Intelligence Community and not subject to the authority
of other committees to invoke the special sequential referral
provisions of S. Res. 400. Nevertheless, as the Committee
advised the Senate (S. Rep. No. 110-3, at 3), the amendment
does not alter the provision of S. Res. 400 which ensures that
nothing in S. Res. 400 shall be construed to effect the
authority of any committee to study or review an intelligence
activity that ``directly affects'' a matter otherwise within
that committee's jurisdiction.
S. Res. 400, as amended, is printed in the most recent
publication of the Committee's Rules of Procedures, S. Prt.
110-22, at 11-17, and is available on the Committee's Web site.
III. OVERSIGHT ACTIVITIES
A. Annual Worldwide Threat Hearings
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 110th Congress covered a wide range of issues.
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 about
the abilities of their organizations to provide information and
analysis about such threats, as well as, in the case of some
agencies, the capabilities within their organizations to
counter such threats.
On January 11, 2007, the Committee held an open and closed
hearing on the current and projected threats to the United
States. Testifying before the Committee were John D.
Negroponte, DNI; General Michael V. Hayden, Director of the
CIA; Lieutenant General Michael Maples, Director of the DIA;
Robert S. Mueller, Director of the FBI; and Randall Fort,
Assistant Secretary of State for Intelligence and Research.
Their unclassified prepared statements for the record are
available in the Hearings section of the Committee's Web site.
Director Negroponte stated ``The Nation requires more from
our Intelligence Community than ever before because America
confronts a greater diversity of threats and challenges than
ever before.'' He addressed in his opening remarks only a few
of those challenges and threats, focusing on: the threats posed
by international terrorist organizations, especially al-Qa'ida
but also including Hizbollah; the challenges confronting Iraq
and Afghanistan in forging national institutions; the actions
of Iran and North Korea to develop or acquire weapons of mass
destruction; Iran's influence in the Middle East; ``turmoil in
Africa;'' ``democratization in Latin America;'' China's
modernization; and ``energy security and the foreign policy
benefits which high prices offer states that are hostile to
United States interests.''
On February 5, 2008, the Committee held an open and closed
hearing on the current and projected threats to the United
States. This was the first worldwide threat hearing since the
confirmation of the new Director of National Intelligence and
Director J. Michael McConnell presented a consolidated
statement (with a classified version submitted for the record)
on behalf of the Intelligence Community. Director McConnell was
accompanied by General Michael V. Hayden, Director of the CIA;
Lieutenant General Maples, Director of the DIA; Robert S.
Mueller, Director of the FBI; and Randall Fort, Assistant
Secretary of State for Intelligence and Research. Director
McConnell's unclassified statement for the record is available
in the Hearings section of the Committee's Web site.
Director McConnell focused his oral testimony on the
continuing ``preeminent terror threat'' of al-Qa'ida; ongoing
efforts of nation states and terrorists to develop and acquire
dangerous weapons and delivery systems; the evolving threat of
cyber attack; conditions in Iraq, Afghanistan, the Middle East
and Africa; Russian and Chinese military modernization; and the
effect of high oil prices, especially for Venezuela and Cuba.
B. Study Groups
During the 110th Congress, the Committee initiated five
study groups and continued a sixth that had begun during the
previous Congress. These study groups were each composed of
four to seven professional staff members from different career
backgrounds and with different committee responsibilities. The
subjects were chosen in response to Members' determination that
the Committee should conduct proactive, in-depth analysis and
research into areas of increasing relevance to its intelligence
authorization and oversight responsibilities. Staff
participants received briefings from and undertook extensive
interviews of intelligence officials at headquarters and in the
field, and examined relevant documents. They prepared written
records of these meetings and briefed Members on their findings
and recommendations. They also arranged for hearings, which
offered opportunities for Members to explore the subjects of
study directly with IC officials, both to evaluate the
effectiveness of intelligence agency activities under the new
IC structure established by the Intelligence Reform and
Terrorist Prevention Act, and to direct legislative remedies as
needed.
1. Iran intelligence collection and analysis
The Committee continued and expanded the review of
intelligence on Iran that it began in 2005. The study group
mapped the U.S. Intelligence Community's collection efforts
worldwide, visiting sites in the United States and abroad, and
studied key analytical products on Iran. The study group
provided a briefing to Members in March 2007.
In addition to reporting to Members on the substance of the
2005 National Intelligence Estimates (NIEs) on Iran, the study
group identified possible methodological problems, which it
attempted to explore further with the Intelligence Community
prior to the publication of new Iran NIEs, then under
preparation. Unfortunately, IC delays in providing responses to
questions for the record and requested documents relating to
the 2005 estimates prevented those efforts from reaching
fruition. A decision by the DNI to refuse study group access to
key intelligence source documents for the 2007 Iran NIE
prevented the type of rigorous review of the estimate the
Committee had anticipated. The study group nonetheless
continued to monitor closely other intelligence produced on
Iran, receiving frequent briefings from intelligence agency
elements on a variety of subjects, but particularly on Iran's
nuclear program and support for terrorism. The study group
prepared or supported eight hearings held by the Committee on
Iran during the period of this activity report.
2. Terrorist safehavens
The Committee established the Terrorist Safehavens Study
Group to examine the Intelligence Community's intelligence
posture toward and understanding of those regions that were
serving or would be likely to serve as safehavens for terrorist
activity. The scope of effort included not only the areas of
most acute current concern, like Pakistan's Federally
Administered Tribal Areas, but also other areas where weak
governmental controls and other factors could foster future
safehavens. Study group members were briefed by the National
Counterterrorism Center and other IC elements and by the State
Department's Coordinator for Counterterrorism on the
Government's analytic frameworks and knowledge management
systems for assessing safehavens and on the effectiveness of
counterterrorist operations in these regions. The work of the
study group contributed to two hearings in 2007 and led to five
recommendations for Committee Members on ways to enhance the
effectiveness of intelligence support for counterterrorism
efforts.
3. Clandestine human source intelligence (HUMINT)
The reorganization of the Intelligence Community under the
2004 Intelligence Reform and Terrorism Prevention Act has had a
significant effect on the HUMINT function--particularly
regarding the interface between activities of the Department of
Defense, CIA, and FBI. The HUMINT Study Group was established
in 2007 to examine the dynamic transition underway and to make
recommendations to improve effectiveness in the conduct of
HUMINT. The study group held numerous in-depth discussions with
IC leaders and senior officials involved in HUMINT management.
It met with the principal HUMINT specialists and intelligence
directors of the Combatant Commands and the Military Services,
intelligence and operations officers from the U.S. Special
Operations Command, and the unconventional warfare expert of
the U.S. Army Special Forces Command, as well as officials of
the FBI and CIA. The study group also conducted numerous
interviews with case officers. It contributed to preparations
for 15 closed hearings that related to HUMINT during the period
of this report.
As a result of the HUMINT Study Group's efforts, nine
Congressionally Directed Actions were incorporated into the
Committee's report accompanying the Fiscal Year 2009
Intelligence Authorization bill. The Intelligence Community has
initiated a number of organizational and policy changes
consistent with these recommendations.
4. Terrorist ideology
Early in the 110th Congress, the Committee established a
study group on terrorist ideology, with the goals of mapping
the IC's contribution to understanding the ideological
component of conflict, as well as the media methods our
opponents use to support their efforts. The group used the
oversight tools available to the Committee to understand where
research and analysis was being conducted on the question of
counter-ideology, and how this knowledge was being provided to
policymakers throughout the Government.
The Committee encouraged the study group to expand the
scope of the review and include an assessment of the entire
U.S. Government's efforts on what would eventually become
recognized as ``strategic communications.'' In particular, the
study group sought to understand how IC research and analysis
contributed to U.S. diplomatic efforts--especially in
determining where there is connectivity and where disconnects
exist. Elements within the Departments of Defense and State
shared their progress on questions of ideological engagement
throughout the world. The study group also was able to
interview numerous former government officials, as well as
representatives of other non-governmental organizations, who
drew on vast and relevant experience.
The study group prepared three hearings for the Committee
during the reporting period, including a June 12, 2007, open
hearing on ``Terrorism Ideology,'' S. Hrg. 110-348 (2007),
addressing global ideology, regional differences, and the role
of ideology in Iraq.
5. China
The Committee directed the China Study Group to examine the
DNI's China strategy and to focus on two large issue areas: (1)
intelligence collection and analysis posture, resource
allocation, and gaps; and (2) China's counterintelligence and
espionage threats to the United States. By the end of the
reporting period, the study group had conducted a thorough
review of the existing capabilities and activities of the
Intelligence Community with respect to China. The study group
received numerous briefings from intelligence agency
representatives and conducted two field visits to China. The
study group prepared one closed hearing for the Committee
during this period.
6. Cyber security
The many dramatic benefits of the Internet have been
accompanied by what the Committee views as a serious threat--
the danger of computer network (``cyber'') attack, cyber
espionage, and cyber crime against U.S. interests by amateur
programmers, criminal organizations, and sophisticated nation-
state adversaries--to our national security including economic
security. The Committee created a new cyber security study
group, consisting of seven Committee staff members with
expertise in national security law, technology, foreign policy,
military affairs, and counterintelligence, to investigate in
further detail the wide range of U.S. Government cyber-related
challenges and to prepare recommendations for future Committee
action. The study group began working with departments and
agencies across the Executive branch, other Congressional
committees, and private sector leaders to broaden the
Committee's understanding of cyber issues.
The Committee held two closed hearings and numerous
briefings examining the cyber threat and the IC's response to
it. The first hearing on the cyber threat was held in 2007; a
second was held in 2008. In parallel with the hearings, the
Committee's Technical Advisory Group was asked to study
technology and policy aspects of cyber security and to report
its findings and actionable recommendations on priorities for
Congress. The Committee's second hearing on Cyber Security
explored the President's new Comprehensive National Cyber
Security Initiative, initiated in January 2008, focused on
improving the security of U.S. federal government computer
networks. The Committee's annex to its fiscal year 2009
intelligence authorization bill formally requested documents
detailing the legal foundations and privacy implications of the
Comprehensive National Cyber Security Initiative.
C. Committee Reviews
1. Inquiry into the prewar intelligence assessments on Iraq
In June 2003, the Committee began a formal review of U.S.
intelligence related to the existence of Iraq's weapons of mass
destruction 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
weapons of mass destruction against his own people.
In February 2004, the Committee announced a second phase
(Phase II) of its Iraq review that included 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.
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).
On May 8, 2007, the Committee filed with the Senate the
redacted unclassified report entitled ``Prewar Intelligence
Assessments About Postwar Iraq,'' S. Rep. No. 110-76 (Prewar/
Postwar Report). Two sets of additional views to the report
were filed. One set was filed by Chairman Rockefeller and
Senators Wyden, Bayh, and Whitehouse. Another was filed by
Senator Feinstein. Three sets of minority views were filed: (1)
by Vice Chairman Bond and Senators Warner, Hatch, and Burr; (2)
by Vice Chairman Bond and Senators Hatch and Burr; and (3) by
Senators Chambliss, Hatch, and Burr. These views, and the
amendments offered by Vice Chairman Bond to the report and
conclusions, are described in the report.
On June 5, 2008, the Committee filed with the Senate two
additional redacted unclassified reports on Phase II matters:
(1) Whether Public Statements Regarding Iraq by U.S. Government
Officials were Substantiated by Intelligence Information, S.
Rep. No. 110-345 (Public Statements Report); and (2)
Intelligence Activities Relating to Iraq conducted by the
Policy Counterterrorism Evaluation Group and the Office of
Special Plans within the Office of the Under Secretary of
Defense for Policy, S. Rep. No. 110-346 (Rome Report).
Chairman Rockefeller, Vice Chairman Bond, and Senators
Feinstein, Warner, Hagel, Chambliss, Hatch, Feingold, Snowe and
Burr all filed additional or minority views with the Public
Statements report. Vice Chairman Bond and Senators Hatch,
Chambliss, and Burr filed minority views with the Rome report.
Those views, along with the amendments to both reports filed by
the Vice Chairman on behalf of the Minority, are printed in the
reports themselves, and all are available on the Committee's
Web site.
Redacted copies of these reports are available on the
Committee's website. Unredacted classified copies of the
reports are available to all Members of the Senate for reading
at the Committee.
2. Electronic surveillance
a. President's surveillance program
As described in Section II of this report, consideration of
measures to modernize the FISA and to address lawsuits brought
against private carriers for alleged participation in the
presidential electronic surveillance program that came to be
known as the Terrorist Surveillance Program was a major focus
of the Committee during the 110th Congress. Prior to the
disclosures of December 2005, and the President's subsequent
acknowledgment that he had authorized a program outside of the
FISA, information concerning the program had been limited by
the Executive branch to very few members of Congress--the
leadership of the Senate, the House of Representatives, and the
congressional intelligence committees plus senior members of
the Defense Appropriations Subcommittee and a few other members
of the congressional leadership.
During the 109th Congress, the Chairman and Vice Chairman
of the Committee sought to have access to the program expanded
to all of the Members of the Committee. In March 2006, the
Committee reached an 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
the Committee, and three members of the staff, were given
access to information about the NSA program.
At the beginning of the 110th Congress, restrictions on
access to the program were further modified to allow a larger
number of staff to have access to information about the
program. In tandem with the effort to determine whether
legislation was needed to amend FISA, the Committee conducted a
series of classified hearings, briefings, and interviews to
understand the historical context of the program and the
sources and methods that were involved.
As described in the report (S. Rep. No. 110-209) to
accompany the Committee's legislation to amend FISA, under the
President's surveillance program, beginning soon after
September 11, 2001, the Executive branch provided written
requests or directives to U.S. electronic communications
service providers at regular intervals. The activities of the
National Security Agency under the program were reauthorized by
the President on a periodic basis through January 2007. The
Committee reviewed all of the relevant correspondence from the
Executive branch to the providers that participated in the
program, as well as each of the presidential authorizations and
accompanying documents.
Over time, the program was modified to reflect new
contingencies. These modifications, and the resulting documents
arising from the modifications, were examined by the Committee.
Throughout the duration of the program, attorneys from the
Office of Legal Counsel generated legal opinions on the
program. The Committee reviewed these opinions and discussed
their development with relevant attorneys.
The Committee's effort to secure information pertaining to
the program was more difficult than it should have been. The
Committee repeatedly requested to see the text of the
presidential authorizations for intelligence collection outside
of FISA and the legal opinions of the Department of Justice
that supported the authorizations. Although the Committee had
been learning about the substance of these documents from
witnesses who appeared before the Committee in 2006 and 2007,
the Committee only gained access to the actual texts for the
first time on October 9, 2007, and for a limited period of time
afterward, but was not allowed to retain copies of the
opinions.
b. Transition to FISC orders in 2007
As described earlier in this report, Attorney General
Gonzales wrote to the Senate and House Judiciary and
Intelligence Committees in January 2007 that a judge of the
FISC had issued orders authorizing the Government to target for
collection international communications into or out of the
United States where there was probable cause to believe that
one of the parties to the communication is a member of al Qaeda
or a related terrorist organization.
The Committee received access to the FISC orders and the
supporting documentation, including the memoranda filed by the
Department of Justice in support of its application. The
Committee also examined the subsequent ruling of a second FISC
judge, and related documents, concerning renewal of the January
2007 orders, as described earlier in the report. The Committee
received extensive briefings from the DNI and others on the
impact of that ruling in light of the terrorist threat
environment.
c. Oversight of implementation of the Protect America Act
of 2007
After enactment of the Protect America Act of 2007 on
August 5, 2007, the Committee immediately began to review the
Act's implementation. This review included a Committee hearing,
on-site briefings at the NSA, and briefings from the Department
of Justice attorneys responsible for compliance reviews during
the duration of the PAA.
The Committee was provided the certifications issued under
the PAA by the Attorney General and DNI, and supporting
documents. The Committee also examined documents related to
judicial review of the PAA.
d. Oversight of implementation of the FISA Amendments Act
of 2008
The Committee continues to examine issues related to
electronic surveillance, FISA, and the President's surveillance
program. With respect to implementation of the authorities
under the FISA Amendments Act of 2008 for targeting certain
persons outside the United States other than United States
persons, the Committee has reviewed with Department of Justice
officials the Attorney General guidelines issued under section
702(f) to ensure compliance with limitations to prevent reverse
targeting and targeting of purely domestic communications. The
Committee is also reviewing opinions of the FISC, and related
documents, pertaining to the implementation of the FAA.
The Committee has received extensive briefings from the
National Security Division of the Department of Justice and the
NSA with respect to the conduct of electronic surveillance
under FISA. These briefings, and access to the relevant court
documents, have greatly assisted the Committee in its oversight
responsibilities.
Title III of the FAA, as described earlier in this report,
provides for a comprehensive review of the President's
surveillance program by the IGs whose departments or IC
elements participated, within each IG's oversight authority and
responsibility. The Committee has received the interim report
required under the FAA and has reviewed it with the relevant IG
offices. The Committee originally received the report in
classified form. Following our request, the Committee also
received an unclassified form of the interim report in November
2008. A final report of the IGs in unclassified form, which may
include a classified annex, is to be submitted to the House and
Senate intelligence and judiciary committees within a year of
the enactment of the Act (July 10, 2009). The Committee is
monitoring the work of the IGs and the cooperation of the
relevant components of the Executive branch.
e. Allegation of improper intelligence activities at Fort
Gordon, Georgia
In early October 2008, a series of press reports raised
allegations from former U.S. military reserve personnel
regarding the improper collection of communications at an NSA
facility located at Fort Gordon, Georgia. The press articles
stated the former U.S. military reserve personnel had alleged
that the conversations of U.S. personnel in Iraq, as well as
those of U.S. aid workers and journalists, were listened to as
part of their unit's support to the war on terrorism. In
response to these reports, the Committee Chairman issued an
October 9, 2008, press release stating the allegations were
extremely disturbing and the Committee was examining the
matter. Since that date the Committee staff has held three
meetings with the appropriate DOD and NSA personnel, and
reviewed the inquiries related to these allegations already
conducted by those entities.
The Committee also has been advised that in response to the
new information contained in the current press reporting,
current investigations are being undertaken by the IGs of the
NSA and the U.S. Army Intelligence and Security Command. In
addition, the DNI has tasked his Civil Liberties Protection
Officer to review the investigations of these allegations to
determine if there is a need for improvements to the IC's
handling of U.S. person information. Upon receipt of the final
reports of investigation from the IGs and the findings of the
Civil Liberties Protection Officer, the Committee will take the
appropriate action to ensure the suggested corrective actions
are implemented.
3. Iraq
The Committee held frequent hearings on Iraq with the
purpose of overseeing the Intelligence Community's ability to
collect intelligence and provide assessments to policymakers.
Hearings provided Senators with intelligence assessments about
the situation and trends in Iraq and in other nations in the
region that affect Iraqi security and stability. In addition,
the hearings provided information on the Intelligence
Community's collection posture, and the Intelligence
Community's plans to support decision makers as the conflict
and U.S. presence in Iraq changes.
In addition to hearings, the Committee received regular
briefings and reports from the National Intelligence Council,
Central Intelligence Agency, elements of the Department of
Defense, Department of State, and nongovernmental
organizations. The Committee provided intelligence assessments
and briefings to support travel to Iraq by members of the
Committee and other Senators. These activities supported
intelligence oversight activities and helped to inform the
legislative debate over the appropriate U.S. policy for Iraq.
4. Information security in the intelligence community
Although the Committee's examination of the cyber threat to
the United States includes all U.S. interests, the Committee is
concerned in particular about potential threats to IC
information systems. The Committee's Fiscal Year 2009
Intelligence Authorization bill sought improved accountability
for IC information security. The Committee requested that the
DNI provide a report that sets forth the specific roles and
responsibilities for IC information security under relevant
legislation, executive orders, and current practices, and
discuss how accountability for IC information security could be
improved.
Also, the Committee requested a joint assessment by the DNI
and the Secretary of Homeland Security on how cyber threat
intelligence information, including classified information, is
shared with the U.S. critical infrastructure leadership. This
assessment should combine the best threat information from the
Intelligence Community and the best vulnerability information
from the Department of Homeland Security to examine the cyber
threat to U.S. critical infrastructure.
5. Research and development
In early 2008, the Committee's Technical Advisory Group
(TAG) conducted a review of research and development spending
in the Intelligence Community. The TAG found that, while the
Intelligence Community had in the past been in the forefront of
significant scientific breakthroughs, the Intelligence
Community for the past two decades has been trailing the
private sector in advances in computer and other information
technologies. The Committee and the TAG concluded that the
Intelligence Community must regain its capabilities in advanced
research and development to develop new sensors, analytical
enablers, knowledge management tools, and other capabilities to
provide our nation's policymakers and warfighters with an
information advantage.
To that end, in the Fiscal Year 2008 and Fiscal Year 2009
Intelligence Authorization bills the Committee strongly
supported the new Intelligence Advanced Research Projects
Activity (IARPA), a dedicated, community-wide research activity
freed from the pressures of an intelligence operational
mission, founded to take great scientific risks and reap great
technological rewards for the Intelligence Community. Wishing
to ensure that the IARPA has the appropriate authorities and
stature to be effective in fulfilling its unique mission, the
Committee requested that the DNI evaluate IARPA's location in
the ODNI organization and consider delegation of personnel,
contracting, and other authorities to improve the effectiveness
of IARPA.
Additionally, the Committee recommended significant changes
to the fiscal year 2009 budget request to increase research and
development spending in the Intelligence Community to four
percent of its total budget. Further, the Committee stated its
intention to recommend further growth in research and
development spending in future authorization bills to
approximately five percent of the total IC budget and to keep
this funding stable in the out years to ensure the United
States will be able to develop the next sensor or system that
will help prevent the next attack or strategic surprise.
6. The ODNI and revision of E.O. 12333
The Committee continued its oversight of the ODNI
throughout the 110th Congress. The position of the DNI was
established by the Intelligence Reform and Terrorism Prevention
Act of 2004, and was given a variety of statutory authorities
and responsibilities. The ODNI includes a management staff
which assists the Director in coordinating the resources and
activities of the various intelligence agencies. It also
includes several functional organizations, including the
National Counterterrorism Center, the National
Counterproliferation Center, the National Counterintelligence
Executive, and the National Intelligence Council.
The Committee held an open hearing on the status of ongoing
intelligence reform efforts on January 23, 2007. The positions
of Director and Principal Deputy Director of National
Intelligence were vacant at that time, so the four other Deputy
Directors, along with the Chief Information Officer and the
Deputy Program Manager for the Information Sharing Environment,
served as witnesses. Witnesses discussed the impact of
structural changes made to the IC, as well as the status of
various efforts to reform management, information sharing, and
coordination throughout the intelligence agencies, and efforts
to improve the quality of intelligence collection and analysis.
After his confirmation in February 2007 (see Section IV.A),
Director McConnell and his deputies appeared before the
Committee for numerous briefings and hearings throughout the
110th Congress and the Committee monitored the progress of his
two major management initiatives, the ``100 Day Plan'' and the
``500 Day Plan''.
The Committee held an open hearing on the authorities of
the DNI on February 14, 2008. Director McConnell, the sole
witness, discussed the challenges of having a national
intelligence leadership role without operational control over
most of the elements of the Intelligence Community. He also
discussed his vision for the Intelligence Community writ large
and the ODNI in particular. Several Committee members expressed
the view that the Director's authorities may be inadequate to
fulfill the position's various statutorily-mandated
responsibilities. In particular, it was noted that the
Director's authorities to transfer resources and personnel from
one intelligence agency to another have been used relatively
rarely, and that this may be the result of administrative
obstacles that prevent them from being used efficiently.
During his tenure, Director McConnell led an effort to
update Executive Order 12333, which is a foundational document
for the Intelligence Community. Revisions to the Executive
Order were promulgated on July 30, 2008. They represented the
first comprehensive change (though not the first modifications)
of the Executive Order since its issuance in 1981 and primarily
addressed Part 1 (duties and responsibilities with respect to
the national intelligence efforts). The rewritten Executive
Order has been adjusted to account for the creation of new
elements of the Intelligence Community, such as the Director of
National Intelligence, the National Geospatial Intelligence
Agency, and the FBI's National Security Branch. It clarifies
the role of the DNI in particular, and includes the new
definition of ``national intelligence'' adopted by Congress in
the Intelligence Reform and Terrorism Prevention Act of 2004.
The Committee was consulted on the revision process, and
held a closed hearing on the rewritten Executive Order shortly
after its release. Committee staff was also able to review
drafts of the proposed revisions shortly before they were
finalized. The Committee noted that the revised Executive Order
contains more than a dozen sections that call for the drafting
of new rules or guidelines on various topics, including
information access, security standards, intelligence collection
and analysis, acquisition of major systems, classification and
declassification, and intelligence relationships with foreign
governments. At the close of the 110th Congress, many of these
new rules and guidelines remained works in progress.
The Committee also examined the fiscal year 2008 and 2009
budget requests for the ODNI as part of the annual intelligence
authorization process, and recommended various adjustments in
resource and funding levels. In particular, the Committee noted
that the Civil Liberties Protection Officer, who holds a wide
range of statutorily-mandated responsibilities, had a staff of
only two deputies, plus himself. The Committee recommended a
significant increase in the size of this office. This
recommendation was eventually enacted in other legislation for
fiscal year 2008, and sustained in the President's budget
request for fiscal year 2009, essentially tripling the size of
the office.
7. Consideration of supplemental requests
During its consideration of the Fiscal Year 2008
Intelligence Authorization Act, the Committee also included
recommendations for the Fiscal Year 2008 Global War of
Terrorism/Iraq Requirements supplemental appropriations
request. Unlike most other years, the Administration's fiscal
year 2008 supplemental request was forwarded to Congress at the
same time as the regular budget request. The Committee has
reviewed supplemental requests in prior years and believes that
most, if not all, of such requests can and should be included
in the base budget request.
The Fiscal Year 2008 Global War of Terrorism/Iraq
Requirements supplemental appropriations request marked the
seventh year the Intelligence Community had relied upon
supplemental funding to pay for the conflict with al Qaeda and
the fifth year of funding for continuing military operations in
Iraq. The Committee noted how the reliance on supplemental
appropriations to pay for known budget expenses hinders long-
term planning; causes uncertainty in all programs funded
through this process; increases costs due to a reliance on
contractors; and otherwise discourages fiscal discipline by
presenting additional opportunities to fund questionable
projects. The fact that the Administration forwarded the
supplemental request at the same time as it forwarded the base
budget request belied its inability to foresee these costs more
than a year prior to their need. The Committee found that the
costs associated with the intelligence operations against al
Qaeda and in Iraq are not unforeseen emergencies traditionally
funded in supplemental bills. The Administration did not heed
the Committee's advice nor did it forward its fiscal year 2009
supplemental request for the Global War of Terrorism and Iraq
in time for Committee consideration of the Fiscal Year 2009
Intelligence Authorization Act.
8. Information sharing
a. Information technology
The Committee conducted reviews of the DNI's efforts to
improve information sharing across the Intelligence Community.
While the Intelligence Community has created centers such as
the National Counterterrorism Center and National
Counterproliferation Center where intelligence information on
terrorism and proliferation can be shared, the Committee
remains concerned that individual IC agencies still do not
routinely provide other intelligence agencies broad and
seamless access to intelligence information regarding other
subject matter. The Committee undertook this review to help the
Intelligence Community change its former practices to ensure
the establishment of a truly synergistic, collaborative
intelligence environment.
The Committee found that, while the DNI has improved
information sharing within the Intelligence Community, much
more needs to be done. Specifically, the Committee found that
the Intelligence Community must expedite the implementation of
its Information Sharing Strategy. This strategy includes the
creation of a Single Information Environment which will develop
common email and other communications services, provide common
data centers, integrate information technology communications
lines, and consolidate software license purchases.
The Committee recommended in its Fiscal Year 2009
Intelligence Authorization bill that the IC Chief Information
Officer be empowered to ensure acceptance and compliance with
the Information Sharing Strategy and Single Information
Environment initiatives. The Committee report accompanying the
authorization bill also recommended that a percentage of each
IC agency's enterprise information technology funding not be
obligated until the IC Chief Information Officer confirmed that
agency's cooperation with these efforts.
b. Information security
As part of its review of the IC efforts to improve
information sharing, the Committee recognized that increased
sharing inherently increases the need to ensure the security of
the intelligence information being shared as well as the
sources and methods used to collect that information. The same
information technology that enables improved sharing of
intelligence also may permit the loss of large volumes of
sensitive information unless the proper security is in place.
As a result, the Committee made recommendations in its Fiscal
Year 2009 Intelligence Authorization bill to increase funding
for counterintelligence and security to help ensure improved
information security proceeds at the same pace as improved
information sharing.
9. Attorney General guidelines
In 1976, Attorney General Edward Levi issued guidelines
intended to reassure the Congress after congressional
investigations had raised concerns over abuses in the
intelligence activities of the FBI and of the rights of
Americans. The Levi guidelines began with domestic security
investigation guidelines issued on March 10, 1976 and were
followed the same year with a memorandum to the Director of the
FBI on the use of informants in domestic security, organized
crime, and other criminal investigations. Subsequent Attorneys
General modified the domestic security guidelines or issued
additional guidance, including new guidelines issued by
Attorney General Ashcroft for FBI national security
investigations and foreign intelligence collection after the
attacks of September 11, 2001.
In early August 2008, Attorney General Michael Mukasey
notified the leadership of the congressional intelligence and
judiciary committees that he intended to issue revised
guidelines governing the domestic investigations of the FBI.
The new guidelines would consolidate and amend the existing
Attorney General guidelines pertaining to general crimes
investigations, national security investigations, foreign
intelligence information collection, reporting on civil
disorders and demonstrations, and participation in otherwise
illegal activities.
During August and September, officials from the Department
of Justice and the FBI conducted briefings for congressional
staff and select representatives of civil liberties and media
organizations and provided access to the draft guidelines under
the condition that they could be read but not retained.
The Committee held a hearing on the proposed guidelines on
September 23, 2008. The witnesses were Elisebeth Collins Cook,
Assistant Attorney General for Legal Policy, and Valerie
Caproni, General Counsel of the FBI. The Committee also
requested statements from outside experts on the proposed
consolidated guidelines. Kate Martin of the Center for National
Security Studies submitted a statement. The prepared statements
for the record are available at the Committee website.
At the hearing, the witnesses testified that the Attorney
General sought to consolidate and revise the guidelines for
three primary reasons: (1) the national security guidelines
were too restrictive for the FBI to become an intelligence-
driven organization ``capable of anticipating and preventing
terrorist and other criminal acts as well as investigating them
after they are committed;'' ( 2) certain distinctions between
what could be done by FBI agents under the general crimes
guidelines and national security guidelines were ``illogical
and inconsistent with sound public policy;'' and (3) having
inconsistent sets of guidelines for FBI investigations was
``problematic from a compliance standpoint.''
At the hearing, the Committee examined whether the proposed
guidelines, and the implementing policy directives to be issued
by the Director of the FBI after the guidelines were finalized,
would contain appropriate safeguards (and be buttressed with
sufficient oversight resources) to prevent abuse and ensure
accountability for FBI operations and activities. Particular
concern was raised about the greater latitude proposed in the
guidelines for the use of sensitive investigative techniques,
especially outside the terrorism context, without the factual
predicates, higher level approval, and periodic review and
renewal that have been required not only before September 11,
2001, but in Attorney General guidelines issued since then.
These techniques include physical surveillance and pretext
interviews that may be intended to mislead law-abiding
Americans.
The Assistant Attorney General for Legal Policy testified
that the Department was in the process of considering changes
in the draft guidelines in response to concerns raised during
the course of the Department's briefings. The FBI General
Counsel testified that FBI policy directives would be made
available to the Committee when issued.
The Attorney General signed the consolidated Attorney
General Guidelines for FBI Domestic Operations (AGG) on
September 29, 2008, and directed they go into effect on
December 1, 2008. The unclassified guidelines are available on
the Department of Justice website.
In response, in part, to suggestions emanating from the
Committee, some modifications were made in the proposed
Attorney General guidelines prior to their issuance. These
included changes in provisions related to civil disorders and
demonstrations to ensure protections found in the 1976
guidelines were not reduced. Clarifications also were made in
requirements in the guidelines on conducting assessments with
respect to the FBI operating openly and consensually with
Americans and respecting the First Amendment.
In mid-November, the FBI provided a briefing for staff of
the intelligence and judiciary committees on the development of
the new FBI policies to implement the AGG. The FBI provided
access, on a read and return basis, to draft sections of the
FBI's Domestic Investigations and Operations Guide (DIOG), a
collection of procedures, standards, approval levels, and
explanations to govern FBI activities under the AGG. The DIOG
also went into effect on December 1, 2008.
By letter to Chairman Rockefeller dated December 15, 2008,
Valerie Caproni, the General Counsel of the FBI, summarized the
steps taken by the FBI and the Department of Justice to
implement the AGG, through the development and issuance of the
DIOG. (The letter may be found on the Committee's website.) Ms.
Caproni discussed in detail the investigative category of
Assessments allowed under the AGG, particularly those
``furthest removed from traditional notions of predication,''
and the newly available assessments techniques. She noted that
``we understand that the expansion of techniques available . .
. has raised privacy and civil liberties concerns [but] we
believe that our policies and procedures will mitigate those
concerns.''
In her letter, Ms. Caproni laid out the areas where the
DIOG placed limitations and prohibitions on the conduct of
Assessments. She stated that under the DIOG, the FBI is
expressly prohibited from opening an Assessment based on
``arbitrary or groundless speculation,'' or solely based on the
exercise of First Amendment rights, or the race, ethnicity,
national origin, or religious practice of any person or group.
She also specified areas where additional levels of supervisory
approval were required to initiate an Assessment and where time
limits were imposed on the use of certain intrusive techniques.
According to Ms. Caproni, the FBI will ``reassess the
policy judgments made in the DIOG in one year.'' She stated
that the reassessment will be ``informed by our experience in
the coming year, as well as by comments and suggestions
received from Congress and interested parties.'' She made the
commitment that to the extent ``our experience reveals that, in
execution, the DIOG has not mitigated legitimate concerns, our
policies will be changed.''
The Committee will continue to monitor the implementation
of the Attorney General Guidelines and the FBI policy
directives.
10. FBI intelligence transformation
The Committee spent considerable time examining the efforts
of the FBI to transform itself into a premier intelligence and
national security organization, including efforts to improve
its intelligence-enabling infrastructure. This included
briefings with current and former FBI officials, oversight
visits to FBI domestic field offices and Legal Attaches
overseas, meetings with representatives of other intelligence
agencies regarding FBI transformation efforts, and exchanges
with academics and think tank experts on the structure and
functions of FBI national security components. Additionally, in
October 2007, the Committee held an open hearing with the
Chairman and Vice Chairman of the National Commission on
Terrorist Attacks Upon the United States (also known as the 9-
11 Commission) and FBI officials, who provided their assessment
of FBI intelligence reform efforts.
The Committee's 2009 authorization bill required the DNI,
in coordination with the Director of the FBI, to establish
performance metrics and timetables for FBI reform initiatives.
In addition, the DNI was required to submit a report on FBI
reform efforts to the congressional intelligence committees on
a semi-annual basis for five years. Additional and specific
funding recommendations were made to improve the effectiveness
of FBI intelligence programs. For example, noting the lack of
basic Internet connectivity for FBI Intelligence Analysts and
Special Agents, the Committee recommended an additional amount
of funding for information technology within the FBI to ensure
desktop access to the Internet. Broadly, the Committee affirmed
that it was anxious to assist the FBI in its transformation
efforts, but noted the FBI must improve its cooperation and
transparency with Committee oversight activities.
Finally, the Committee held several closed hearings related
to the domestic collection of intelligence, including the
revisions of Executive Order 12333, which included a detailed
examination of FBI national security capabilities.
11. IC Counterterrorism analysis and operations
The Committee maintained a constant focus on
counterterrorism matters throughout the 110th Congress. In
addition to open hearings on Worldwide Threats, the Committee
held more than three dozen formal briefings on counterterrorism
related topics. Committee members regularly requested briefings
on terrorism threats to the United States and attended several
offsite visits with IC executives that included discussions of
the terrorist threat to the United States.
In addition to ensuring that the Intelligence Community
received the resources and authorization needed to combat
terrorism, the Committee worked to ensure American civil
liberties were being protected and that United States values
remained intact as we confronted the threat from terrorism. To
that end, the Committee held extensive hearings on the
presidential electronic surveillance program that came to be
known as the Terrorist Surveillance Program and the CIA's use
of enhanced interrogation techniques and destruction of
videotapes associated with the interrogation program.
The Committee continued to track the performance and
standup of the National Counterterrorism Center (NCTC). The
Committee held hearings on the status of the NCTC and conducted
an intelligence oversight visit to the center to meet with its
Director, analysts and other staff. In May 2008, the Committee
held a hearing to confirm Michael Leiter as the second Director
of the NCTC (see Section IV.D.).
Committee oversight of United States Government
counterterrorism efforts was not confined to formal hearings.
The Committee's staff received biweekly briefings from the NCTC
and the FBI on current threats to United States interests.
Committee Members also received monthly updates on these
terrorist threats that helped to ensure counterterrorism
resources and activities were being used effectively and
efficiently. Moreover, Committee Members and staff spent
considerable time visiting regions of the world that were
confronting domestic and international terrorism threats.
Finally, the Committee established two staff-led study
groups related to terrorism: the Terrorist Safe Havens Study
Group and the Terrorist Ideology Study Group (described in
Section III. B.).
12. 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 U.S. 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. This is one of the Committee's most
important functions. 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
IC personnel the reports on each subject, and pose follow up
questions and receive further briefings or written answers. The
Committee usually schedules a closed hearing to examine a
selected number of the programs in greater detail.
As the Committee has written in past reports, the purpose
of these program reviews includes ensuring that their means and
objectives are consistent with U.S. foreign policy goals, were
conducted in accordance with U.S. law, are producing or can be
expected to produce reasonable benefits for the resources
expended, and are consistent with U.S. ideals and principles.
13. CIA presidentially directed growth
On November 23, 2004, the White House issued a Memorandum
for the Director of Central Intelligence on Strengthening
Central Intelligence Agency Capabilities. This memorandum
called for a 50 percent increase in the number of analysts,
fully qualified National Clandestine Service officers, and
language proficient officers. There also was a requirement to
double the number of CIA officers involved in research and
development.
During the 110th Congress, the Committee monitored this
growth through numerous oversight visits, briefings, and
hearings, and has expressed its concern that the CIA was not
supporting the personnel increases across all Directorates with
potentially adverse impacts on the overall goal of
strengthening the CIA's capabilities. It has been the
Committee's intent for the CIA to achieve a more balanced and
sustainable pattern of growth. While the Committee noted that
the CIA has modified its initial steps to address the
challenges associated with personnel growth, the Committee will
continue to monitor the CIA's progress toward achieving the
stated goals and objectives.
14. CIA Lessons Learned Program
During the 110th Congress the Committee commended the CIA
for establishing a Lessons Learned Program. The Committee fully
supports its growth at the operational and tactical level in
the individual components of the CIA. The Committee encouraged
the CIA to increase the number and type of studies, to create
web-based lesson-sharing environments, to modernize its oral
history programs, to support component-based lessons learned
activities throughout the CIA, and to hire additional lessons
learned subject matter experts as well as additional officers
to enable the CIA to conduct interviews to record the insights
of officers in key positions as they rotate on to new
assignments or move into retirement.
The Committee has conveyed to the CIA leadership that it
expects the CIA to improve its internal processes for self-
examination, including increasing the use of formal lessons
learned studies to learn from its successes and mistakes and to
anticipate and be ready for new challenges. The Committee has
prodded and encouraged the CIA to follow the lead of other
high-risk, high-reliability organizations by investing time and
resources in continuous learning and knowledge sharing.
15. Oversight of Department of Homeland Security intelligence
activities
The Committee recommended funding levels for the Department
of Homeland Security Office of Intelligence and Analysis (DHS
I&A) and Coast Guard Intelligence in its Fiscal Year 2008 and
Fiscal Year 2009 Intelligence Authorization bills. Although the
Committee supported the President's budget request, the
Committee expressed a few misgivings pertaining to DHS I&A
programs. Specifically, the Committee closely followed the
development of the National Applications Office (NAO) within
the Department of Homeland Security as well as other important
matters.
The NAO is intended to centralize and facilitate the
sharing of imagery from intelligence agency systems under
appropriate circumstances for purposes related to law
enforcement, homeland security, and civil applications. Because
the NAO relates to the use of intelligence resources for
domestic purposes, the Committee has been and continues to be
attentive to civil liberties and privacy concerns associated
with the NAO.
The Committee concurred with the fiscal year 2008
Department of Homeland Security appropriations act, which
stated that ``none of the funds provided in this Act shall be
available to commence operations of the National Applications
Office . . . until the Secretary certifies that th[is]
program[] compl[ies] with all existing laws, including all
applicable privacy and civil liberties standards, and that
certification is reviewed by the Government Accountability
Office.'' The former Secretary of Homeland Security informed
Congress that he had ``determined that the standard set forth
in Section 525 . . . [was] met'' thereby certifying that the
NAO complies with all existing laws, including all applicable
privacy and civil liberties standards, with respect to its
planned operations in what are known as the civil application
and homeland security domains.
The Committee assessed that the NAO should proceed pending
the review of the certification. The Committee explicitly
stated, however, that it strongly opposed the NAO fielding any
law enforcement requests until the legal framework and standard
operating procedures of the law enforcement domain were
completed, certified by the Secretary, reviewed by the GAO, and
provided to the appropriate congressional oversight committees.
The Government Accountability Office completed its review on
November 6, 2008, concluding that ``DHS has not resolved legal
and policy issues associated with NAO support for law
enforcement'' underscoring the need for such legal framework
and standard operating procedures of the law enforcement domain
before any law enforcement requests are fielded.
The Committee also stressed the need for basic
counterintelligence computer-based training at DHS I&A and
Coast Guard Intelligence and sought to reduce the costs to the
taxpayer associated with contractor support by providing much
needed stability to the mission workforce by converting the
contractor positions to full-time equivalents or full-time
government positions. The Committee expressed its support of
the Coast Guard initiative to create the intelligence
specialist rate and emphasized the importance of human
resources management at DHS I&A where recruitment and retention
are at distressingly low numbers.
The Committee requested the Secretary of Homeland Security
complete a formal national fusion center strategy outlining the
federal government's clear expectations of fusion centers as,
according to the GAO, the fusion centers have ``increasingly
gravitated toward an all-crimes and even broader all-hazard
approach.''
Finally, the Committee noted its concerns about certain
reports issued by DHS I&A, which included U.S. person
information or sought such information. These reports used
certain questionable open source information as a basis of
their conclusions and raised fundamental questions about the
role and mission of DHS I&A.
16. Defense Intelligence Officers
The Committee conducted numerous staff interviews with the
leaders and representatives of the Defense Intelligence Agency
(DIA), the Chairman of the Joint Chiefs of Staff Directorate
for Intelligence, and officials of the Office of the Under
Secretary of Defense for Policy. The Committee found that
coordination and sharing of intelligence information and
analysis, along with intelligence support to senior DOD
policymakers could be significantly improved by reestablishing
the Defense Intelligence Officer program, which in the
Committee's view was imprudently discontinued in 2003.
The Committee directed a study be conducted and authorized
additional funding for the DIA to reestablish the program. The
Director of the DIA subsequently designated seven individuals
as Defense Intelligence Officers for Latin America, Eurasia,
the Middle East and North Africa, Europe and NATO, South Asia,
Africa, and East Asia. Defense Intelligence Officers complement
the National Intelligence Council's National Intelligence
Officers. The Defense Intelligence Officers speak for the
Director of the DIA and the Director's Functional Manager for
Analysis, who oversees analysis by the DIA, the Military
Service Intelligence Centers, and the Combatant Command
intelligence centers.
17. Armed Forces Medical Intelligence Center
The Committee recognized the unique and valuable
contributions of the DIA's Armed Forces Medical Center
following a number of interviews with Agency analysts and staff
officers and leaders of the Center. The Armed Forces Medical
Center has been the nation's only resource for scientific
intelligence of a medical nature, to include analysis of
infectious disease, effects of chemical and biological weapons
and analysis of medical resources and capabilities around the
world. Since September 11, 2001 and increased concern of
chemical or biological attack in the United States, the Center
has taken on new and greater responsibilities for homeland
security and medical indications and warnings, as well as its
traditional role of supporting and informing military units
that serve in theaters of combat operations such as Iraq and
Afghanistan. Recognizing this, the Committee recommended
elevating the Center's command structure as well as additional
funding. Given the Committee's concerns and focus, in mid-2008
the Center became a national intelligence center, the National
Center for Medical Intelligence, under the DIA. The Under
Secretary of Defense is studying the options for placing
leadership of the Center under a senior civilian executive or a
general officer.
18. Defense Counterintelligence and HUMINT Center
In addition to the Committee's exploration of human source
intelligence in the HUMINT Study Group, staff also performed
research on the counterintelligence function and its
relationship to HUMINT, spending considerable time meeting with
HUMINT specialists of the DOD, particularly with professional
staff officers of the Under Secretary of Defense for
Intelligence, which had begun its own HUMINT and
counterintelligence studies to determine how to update military
organizations, missions and functions. Working closely with the
Office of the Under Secretary for Intelligence, the Committee
recommended a closer support and operational relationship
between HUMINT and counterintelligence and a more unified
effort among all Defense elements conducting or supporting
HUMINT and counterintelligence operations. The Committee also
expressed concerns regarding the oversight of HUMINT and the
levels of collaboration and professional standards found within
the Defense HUMINT community. In April 2008, the Secretary of
Defense endorsed a plan by the Under Secretary of Defense for
Intelligence to integrate the Counterintelligence Field
Activity, the DIA's counterintelligence analysis assets and the
Defense HUMINT Service, along with other important support
offices under the DIA's new Defense Counterintelligence and
HUMINT Center. As recommended by the Committee, the Center will
dramatically improve counterintelligence support to HUMINT,
professional oversight and collaboration, and save significant
resources in the sharing of resources and infrastructure.
19. CIA interrogation tapes
In 2008, the Committee commenced an inquiry into
allegations relating to destruction of CIA interrogation tapes,
which is in process as of the date of this report.
D. 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.'' This element is called the Audits and Evaluations
Staff and in addition to conducting such reviews, it has
responsibility for assisting in the Committee's oversight of
the IC's compliance with financial accounting standards and
also the Committee's interaction with the various IGs whose
work includes or covers the Intelligence Community.
1. IC Compliance with federal financial accounting standards
During the 110th 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 elements of the
Intelligence Community were not included in the Chief Financial
Officers Act's original 24 agency pilot program. To address
this omission, the Committee's report accompanying the
Intelligence Authorization Act for Fiscal Year 2002 directed
the Director of Central Intelligence, in consultation with the
Secretary of Defense, to ``ensure that all agencies in the DoD-
NFIP aggregation, including the CIA, receive an audit of their
financial statements by March 1, 2005.'' This deadline was
extended several times. Most recently, in December 2006, when
it became evident that 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 IC agencies should be completed by
November 15, 2007. Also, this extension included a requirement
for the DNI, in consultation with the Office of Management and
Budget, to submit to the Committee by March 1, 2007, a plan for
IC compliance with the financial statement audit requirement.
The Chairman and Vice Chairman envisioned that this plan would
include a business enterprise architecture and a transition
plan to this architecture.
Financial auditability was a major concern raised by the
Committee during the February 2007 confirmation hearing for DNI
McConnell. In response to questions, he pledged to achieve a
``workable solution with alacrity.'' In April 2007, DNI
McConnell issued a Financial Statement Auditability Plan to the
Committee. The plan offered a detailed description of the
current status of the IC's ability to produce financial
statements and outlined a plan with key milestones for
achieving auditability at each agency by 2012. An important
element of the plan was a proposed follow-on study to produce
the enterprise architecture and transition plan sought by the
Committee. This broad-based study would inventory existing and
planned business systems, define requirements and key
interfaces, provide inputs to investment decisions, and
describe transition activities. The Chairman and Vice Chairman
wrote the DNI in May 2007, granting him until December 2007 to
produce this study.
When it became clear that the DNI would not be able to meet
the December 2007 extension, the Committee in its fiscal year
2008 authorization bill (Section 316), prohibited funding for
any new business system that did not comply with the business
enterprise architecture, which was to be established by the DNI
by March 2008. The provision made it a violation of the Anti-
Deficiency Act to fund systems that were not certified as
complying with that architecture. The bill also established a
rigorous IC Business System Investment Review process that
would guide investment decisions. As discussed in Section II,
the conference report on the bill was vetoed by the President.
The provision was adopted again in the fiscal year 2009
authorization bill but, as also discussed in Section II, that
bill did not pass Congress.
The Committee received the follow-on study, titled
Financial Management Systems Report, in April 2008. The report
fell well short of expectations and merely outlined a plan to
consolidate the current environment of four financial systems
to two. The report did not offer insight into how common feeder
systems would be developed or a transition plan. Once again,
the report promised a second phase that would address feeder
systems, which the ODNI promised by September 30, 2008. This
second report had not been received as of February 1, 2009, and
since April 2008 there has been significant turnover in the
DNI's financial management personnel and several changes in the
plan for business system transformation. Most recently, on
October 6, 2008, a new Business Transformation Office was
established within the office of the DNI Chief Financial
Officer, but initial impressions are that first steps will
include further study of the current situation, and
establishment of another set of working groups, which to date
have not been embraced by the IC agencies nor produced tangible
results.
As further evidence of the poor status of IC financial
management, in November 2007 the Committee received the first
version of each agency's Annual Financial Report, which
contained financial statements and related reporting by agency
management. The Committee was generally disappointed in their
content and prepared a detailed set of questions on each report
in an attempt to gain further insight into agency management's
plans for improving financial management practices. The agency
responses, while generally complete, failed to offer definitive
plans for fully addressing financial weaknesses. As an
indication of the lack of senior management attention to this
critical area, although the questions were addressed to the
agency directors, only one response was signed by a director.
2. Oversight of Intelligence Community Inspectors General
During the 110th Congress, the Committee continued to
monitor the activities of the IGs of the IC. 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 IC IGs,
staff conducted a number of briefings with Community program
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, and effective use
of resources on new technology.
During the 110th Congress, the Committee continued its work
to ensure the effectiveness and independence of the
administrative IGs at NRO, NSA, NGA, DIA, and the Office of the
Director of National Intelligence. 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 110th
Congress.
Additionally, the Fiscal Year 2006, Fiscal Year 2007, and
Fiscal Year 2008 Intelligence Authorization bills included
provisions to add the National Reconnaissance Office, National
Security Agency, National Geospatial-Intelligence Agency, and
Defense Intelligence Agency IGs to Section 8G of the Inspector
General Act of 1978. This statutory designation will provide
the IGs with additional authorities to conduct investigations
including the ability to compel production of information. The
three 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 110th Congress, the audit staff completed two
audits--on Document Exploitation and a Compartmented Program--
and made substantial progress toward completing a major review
of the IC's acquisition processes.
a. Document exploitation
Beginning in December 2005, the Committee's audit staff
reviewed 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 ``DOMEX,'' 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 was concerned
about the varied and disparate Community initiatives to
process, translate, and exploit captured documents and
electronic media. The audit analyzed the costs of the various
document and media exploitation efforts and associated
technology development programs. The audit also evaluated the
intelligence value derived from these efforts and the budget
implications for sustaining these initiatives over the long
term.
Building on the results of its audit, the Committee, in the
May 2006 report accompanying its Fiscal Year 2007 bill,
encouraged the DNI to appoint a program manager for the
National Intelligence Program DOMEX efforts, develop a national
DOMEX strategy, and form a DOMEX technology investments board
to guide and develop a coordinated Community-wide research and
development strategy. During the 110th Congress, the ODNI
responded to the audit report by establishing the position of
Senior Advisor for DOMEX, issued an IC Directive on the
subject, and initiated efforts to develop a clear Community
vision and strategic direction for the DOMEX enterprise.
b. Compartmented program
The Committee's Audit and Evaluation Staff conducted a
review of a compartmented IC 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, and
made recommendations regarding program management, establishing
an appropriate funding level, and revalidation of the
requirements process.
c. Intelligence Community acquisition processes
In 2008 the Audit and Evaluations Staff began a review of
the Intelligence Community's acquisition capability. The review
was focused on the DNI's role in overseeing the Intelligence
Community's acquisition processes and the performance at four
primary agencies: the NSA, NGA, NRO, and CIA.
The audit found the ODNI is now providing valuable
oversight, specifically with regard to major systems
acquisitions. To increase oversight of the function the DNI
established a new DDNI for Acquisition. That office has issued
several policy documents that are driving standardization in IC
acquisition management processes and begun conducting annual
reviews of how Milestone Decision Authority should be delegated
to the agencies.
The DDNI for Acquisition's most useful contribution has
been the annual Program Management Plan report on major
acquisitions, which was required by the Intelligence Reform and
Terrorism Prevention Act. For the first time, in one document,
the Committee receives information on the community's largest
programs from satellite development to information technology
systems. The most recent report noted progress in compliance
with DNI guidance on establishing valid cost, schedule, and
performance baselines. Key problem areas that remain include
the need for improved acquisition management tools, failure to
realistically price contracts, and cost and schedule baselines
that remain vague and inconsistent.
The Committee's review of IC acquisition practices
developed a number of preliminary conclusions. The most
prevalent finding was that despite being recognized as critical
to every IC mission and operation, senior management of the
individual agencies has continually failed to dedicate adequate
attention and resources to the acquisition function. The audit
also found the Intelligence Community has insufficient
experienced professionals to properly oversee the execution and
management of billions of dollars in annual acquisitions, and
there is a need for better management and training of the
workforce. There is also a need for a skills assessment,
establishment of tenure requirements for acquisition managers,
and succession planning.
Other areas of Committee concern include: the use of
contractors to perform administrative or source selection
aspects of an acquisition; contractor involvement in monitoring
the technical performance of another contractor; the need for
increased government monitoring of contractor performance
through formal progress measurement tools such as Earned Value
Management; properly using fee/profit earning potential to
incentivize contractor performance; and the need for wider use
of the Defense Contract Audit Agency to provide contract audit
services. The final report will contain a number of
recommendations to address these findings.
IV. NOMINATIONS
During the 110th Congress, five nominations were referred
to the Committee, four directly upon receipt of the nomination
in the Senate and one sequentially after referral to and
reporting by another committee. The Committee held hearings for
all of the nominees and recommended to the Senate that it give
its advice and consent to four of the five nominations. One
nominee withdrew his nomination prior to a Committee vote. The
Senate ultimately confirmed the four individuals recommended by
the Committee.
Throughout the Congress, referrals to the Committee were
governed 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 Attorney General
for National Security--that are within departments which are
primarily under the jurisdiction of other Senate committees.
Three of the nominations received by the Committee were for
positions created by the National Security Intelligence Reform
Act of 2004 that were being filled for only the second time:
the DNI; Principal Deputy DNI; and the Director of the NCTC.
One other nomination was also being filled for the second time,
the position of 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 110th Congress
was to examine in detail the responsibilities of these
relatively new leadership positions in the IC. 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.
Through the nomination process and its traditional oversight,
the Committee has been able to assess the unique role and
contributions of each position within the Intelligence
Community. For example, the Committee continues to explore
whether the DNI has sufficient statutory authorities to lead
the Intelligence Community.
The following were the nominations referred to the
Committee during the 110th Congress, listed in accordance with
the date of the nomination:
A. J. Michael McConnell, Director of National Intelligence
The Intelligence Reform and Terrorism Prevention 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 of national
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 January 22, 2007, the President nominated J. Michael
McConnell to be the DNI. Prior to his nomination, Admiral
McConnell served as a Senior Vice President at Booz Allen
Hamilton, a government contractor and consulting firm that he
joined in 1996 after retiring from a distinguished career in
the United States Navy. From 1992 through 1996, Admiral
McConnell served as the Director of the NSA. During his twenty-
nine year Naval career, he served as the Intelligence Officer
for the Chairman, Joint Chiefs of Staff, and as the Director of
Intelligence Pacific Fleet and Seventh Fleet. In addition to
holding a Masters degree in public administration, Admiral
McConnell is also a graduate of the National Defense University
and the National Defense Intelligence College.
After receiving Mr. McConnell'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 February
1, 2007. Admiral McConnell's testimony is printed in S. Hrg.
110-225. The Committee reported the nomination favorably on
February 6, 2007, by a vote of 15-0. The Senate confirmed Mr.
McConnell's appointment to be DNI on February 7, 2007, by a
voice vote.
B. John A. Rizzo, General Counsel, Central Intelligence Agency
Under section 403t of title 50, United States Code, the
General Counsel of the Central Intelligence Agency is the chief
legal officer of the CIA. The General Counsel shall perform
such functions as the Director of the CIA may prescribe.
On January 9, 2007, the President nominated John A. Rizzo
to be the General Counsel of the CIA. Mr. Rizzo had previously
been nominated for this position during the 109th Congress, but
the nomination was returned to the President under the
provisions of Rule 31.6 of the Standing Rules of the Senate.
Mr. Rizzo joined the CIA in 1976, the beginning of a lengthy
tenure with the Agency. In 1985, Mr. Rizzo moved to the CIA's
Office of Inspector General where he conducted investigations
into alleged wrongdoing by chiefs of station. From 1986-1989,
he served as the Deputy Director of the Office of Congressional
Affairs. As such, he was the CIA's lead counsel in dealing with
the congressional committees investigating the Iran-Contra
affair. Mr. Rizzo rejoined the Office of General Counsel in
1988 and became the Principal Deputy General Counsel in the
Office of General Counsel in 1995. He served as Acting General
Counsel during periods of vacancies in that office from
November 2001 to November 2002 and from August 2004 through
June 2006.
After receiving Mr. Rizzo'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 an open and a closed nomination hearing on
June 19, 2007. Following those hearings, members also posed
additional questions in writing. Mr. Rizzo's open hearing
testimony and answers to the written questions are printed in
S. Hrg. 110-407. On September 25, 2007, the Committee was
notified that the President had formally withdrawn Mr. Rizzo's
nomination from consideration.
C. Donald M. Kerr, 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 July 11, 2007, the President nominated Donald M. Kerr,
who was then serving as the Director of the NRO, to succeed
Michael V. Hayden as the PDDNI. Throughout his career, Dr. Kerr
had held a number of positions within the government and
private sector. He began his career as a staff member at the
Los Alamos National Laboratory (LANL). After approximately 10
years at LANL, he assumed a Deputy Manager position at the U.S.
Department of Energy, eventually attaining the title of Acting
Assistant Secretary for Energy Technology. He subsequently
became the Director of LANL, a position that he held for 6
years before entering the private sector. In 1997, he returned
to government service to become the Assistant Director in
Charge, Laboratory Division, at the FBI. In August 2001, he was
named Deputy Director for Science and Technology at the CIA. He
held this position until July 2005 when he became the Director
of the NRO.
The Committee held a nomination hearing on August 1, 2007.
Mr. Kerr's testimony and his responses to the Committee's
questionnaire and prehearing questions are printed in S. Hrg.
110-452. The Committee reported the nomination favorably on
September 24, 2007, by a vote of 12-3. On October 4, 2007, the
Senate agreed by voice vote to the nomination.
D. Michael E. Leiter, Director of the National Counterterrorism Center
The Intelligence Reform Act of 2004 established the NCTC
within the ODNI. The Act provides that the NCTC Director has
two reporting responsibilities: to the DNI on the NCTC's budget
and programs, the activities of its Directorate of
Intelligence, and the conduct of intelligence operations
implemented by other elements of the IC; and to the President
on the planning and progress of joint counterterrorism
operations other than intelligence operations.
The Act provides that the 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, the NCTC 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 also assigns roles and
responsibilities to lead agencies, but does not direct the
execution of resulting operations. The Director of NCTC serves
as the principal adviser to the DNI on counterterrorism
operations.
On March 31, 2008, the President nominated Michael E.
Leiter to be the Director of the NCTC. Mr. Leiter had served as
the Acting Director of the NCTC since November 2007, and before
that was the NCTC's Principal Deputy Director. Before joining
the NCTC, Mr. Leiter was the Deputy Chief of Staff for the ODNI
and served as the Deputy General Counsel and Assistant Director
of the President's Commission on the Intelligence Capabilities
of the United States Regarding Weapons of Mass Destruction (the
``Robb-Silberman Commission''). From 2002 until 2005, he served
with the Department of Justice as an Assistant United States
Attorney for the Eastern District of Virginia. He also was a
law clerk to Associate Justice Stephen G. Breyer of the Supreme
Court of the United States and to Chief Judge Michael Boudin of
the U.S. Court of Appeals for the First Circuit. From 1991
until 1997, he served as a Naval Flight Officer flying EA-6B
Prowlers in the U.S. Navy, participating in U.S., NATO, and UN
operations in the former Yugoslavia and Iraq.
The Committee held a nomination hearing on May 6, 2008. Mr.
Leiter's testimony and his answers to the Committee's
prehearing questions have not yet been printed in the Senate
record. The Committee acted favorably on Mr. Leiter's
nomination on June 5, 2008, by voice vote. The Senate confirmed
his appointment on June 10, 2008, by voice vote.
E. J. Patrick Rowan, Assistant Attorney General for National Security,
Department of Justice
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 (AAG) 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 June 19, 2008, the President nominated J. Patrick Rowan,
who was then Acting Assistant Attorney General, to fill the
position of AAG. Mr. Rowan previously served as the NSD's
Principal Deputy Assistant Attorney General. Prior to the
establishment of the NSD, Mr. Rowan served as an Associate
Deputy Attorney General where he assisted in the management of
national security functions for the Justice Department. Before
that, he held a number of positions in the Department,
including Senior Counsel to the Assistant Attorney General for
the Criminal Division, Special Counsel for the Office of
General Counsel of the FBI, and Counsel to the Director of the
Executive Office for United States Attorneys. From 1991 to
2002, Mr. Rowan served as an Assistant U.S. Attorney for the
District of Columbia, where he prosecuted a range of offenses,
including fraud, public corruption, and homicide.
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 of Assistant Attorney
General for National Security are referred first to the
Judiciary Committee and then sequentially to this Committee.
The nomination was reported favorably by the Judiciary
Committee on September 11, 2008. It was then referred
sequentially to this Committee which held a public hearing on
September 25, 2008. Mr. Rowan's testimony and his responses to
the Committee's prehearing questions have not yet been printed.
The nomination was discharged from this Committee by unanimous
consent on September 26, 2008. The Senate confirmed Mr. Rowan
on that same day by voice vote.
V. SUPPORT TO THE SENATE
The Committee undertook a number of activities to support
the Senate's deliberations. The Chairman and Vice Chairman
began the 110th Congress by writing to all members to encourage
them to make use of the Intelligence Committee's resources. The
Chairman and Vice Chairman also wrote to new Senators to
describe the special role of the Intelligence Committee and to
make them aware of support the Committee provides to members.
In addition to its unclassified reports, the Committee
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 members of the Senate
intelligence information regarding topics relevant to current
legislation. Because of the high level of interest in the
topic, the Committee compiled and maintained the most recent
intelligence reporting on Iran and made this reporting
available to all members.
Members outside the Committee have frequently sought and
received intelligence briefings by the Committee's professional
staff. Members have also requested and received assistance in
resolving issues with elements of the IC. 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 110th Congress, the Committee held a total of
113 on-the-record meetings, briefings, and hearings, and
numerous off-the-record briefings. There were 66 oversight
hearings, 5 open and 1 closed confirmation hearings, 5 hearings
on the IC budget, and 5 legislative hearings. Of these 82
hearings, 15 were open to the public and 67 were closed to
protect classified information pursuant to Senate rules. The
Committee also held 7 on-the-record briefings and 24 business
meetings. Additionally, the Committee staff conducted 4 on-the-
record briefings and interviews and numerous off-the-record
briefings.
B. Bills and resolutions originated by the Committee
S. 372, Intelligence Authorization Act for Fiscal Year 2007
S. Res. 50, An original resolution amending Senate
Resolution 400 (94th Congress)
S. Res. 51, An original resolution authorizing expenditures
by the Select Committee on Intelligence
S. 1538, Intelligence Authorization Act for Fiscal Year
2008
S. 2248, Foreign Intelligence Surveillance Act of 1978
Amendments Act of 2007
S. 2996, Intelligence Authorization Act for Fiscal Year
2009
C. Bills referred to the Committee
S. 82, To reaffirm the authority of the Comptroller General
to audit and evaluate the programs, activities, and financial
transactions of the intelligence community, and for other
purposes
S. 1018, To address security risks posed by global climate
change and for other purposes
S. 1613, To require the Director of National Intelligence
to submit to Congress an unclassified report on energy security
and for other purposes
S. 3041, To establish the Foreign Intelligence and
Information Commission to assess needs and provide
recommendations to improve foreign intelligence and information
collection, analysis, and reporting, and for other purposes
S. 3386, To prohibit the use of certain interrogation
techniques and for other purposes
S. 3437, To limit the use of certain interrogation
techniques, to require notification of the International
Committee of the Red Cross of detainees, to prohibit
interrogation by contractors, and for other purposes
C. Publications
S. Rep. 110-2, Report to accompany S. 372
S. Rep. 110-3, Report to accompany S. Res. 50
S. Rep. 110-57, Report of the Select Committee on
Intelligence Covering the Period January 4, 2005 to December 8,
2006
S. Prt. 110-22, Rules of Procedure (Amended March 1, 2007)
S. Rep. 110-75, Report to accompany S. 1538
S. Rep. 110-76, Report on prewar intelligence assessments
about postwar Iraq
S. Rep. 110-125, Report to accompany S.1547, National
Defense Authorization Act for Fiscal Year 2008
S. Rep. 110-209, Report to accompany S.2248
S. Rep. 110-478, Conference report to accompany H.R. 2082
S. Hrg. 110-225, Nomination of Vice Admiral Michael
McConnell to be the Director of National Intelligence
S. Hrg. 110-348, Terrorist Ideology
S. Rep. 110-333, Report to accompany S. 2996
S. Rep. 110-345, Report on whether public statements
regarding Iraq by U.S. Government officials were substantiated
by intelligence information
S. Rep. 110-346, Report on intelligence activities relating
to Iraq conducted by the Policy Counterterrorism Evaluation
Group and the Office of Special Plans within the Office of the
Undersecretary of Defense for Policy
S. Hrg. 110-399, Modernization of the Foreign Intelligence
Surveillance Act
S. Hrg. 110-407, Nomination of John A. Rizzo to be General
Counsel of the CIA
S. Hrg. 110-452, Nomination of Donald M. Kerr to be
Principal Deputy Director of National Intelligence
