1995 Congressional DocumentsIntelligence and Security
1995 Congressional Documents
Calendar No. 126
104th Congress Report
SENATE
1st Session 104-97
_______________________________________________________________________
AUTHORIZING APPROPRIATIONS FOR FISCAL YEAR 1996 FOR THE INTELLIGENCE
ACTIVITIES OF THE UNITED STATES GOVERNMENT AND THE CENTRAL INTELLIGENCE
AGENCY RETIREMENT AND DISABILITY SYSTEM AND FOR OTHER PURPOSES
_______
June 14 (legislative day, June 5), 1995.--Ordered to be printed
_______________________________________________________________________
Mr. Specter, from the Select Committee on Intelligence, submitted the
following
R E P O R T
[To accompany S. 922]
The Select Committee on Intelligence, having considered the
original bill (S. 922), which authorizes appropriations for
fiscal year 1996 for the intelligence activities and programs
of the United States Government and the Central Intelligence
Agency Retirement and Disability system, and which accomplishes
other purposes, reports favorably thereon and recommends that
the bill do pass.
purpose of the bill
This bill would:
(1) Authorize appropriations for fiscal year 1996 for
(a) the intelligence activities and programs of the
United States Government; (b) the Central Intelligence
Agency Retirement and Disability System; and (c) the
Community Management of the Director of Central
Intelligence;
(2) Authorize the personnel ceilings as of September
30, 1996, for the intelligence activities of the United
States and for the Community Management Account of the
Director of Central Intelligence;
(3) Authorize the Director of Central Intelligence,
with Office of Management and Budget approval, to
exceed the personnel ceilings by up to two percent;
(4) Permit the President to delay the imposition of
sanctions related to proliferation of weapons of mass
destruction when necessary to protect an intelligence
source or method or an ongoing criminal investigation;
(5) Provide for forfeiture of the U.S. Government
contribution to the Thrift Savings Plan under the
Federal Employees Retirement System (FERS), along with
interest, if an employee is convicted of national
security offenses;
(6) Restore spousal benefits to the spouse of an
employee so convicted if the spouse cooperates in the
investigation and prosecution;
(7) To allow employees of the excepted services to
take an active part in certain local elections;
(8) Amend the Fair Credit Reporting Act to permit the
Federal Bureau of Investigation to obtain consumer
credit reports necessary to foreign counterintelligence
investigations under certain circumstances and subject
to appropriate controls on the use of such reports; and
(9) Make certain other changes of technical nature to
existing law governing intelligence agencies.
the classified supplement to the committee report
The classified nature of the United States intelligence
activities prevents the Committee from disclosing details of
its budgetary recommendations in this Report.
The Committee has prepared a classified supplement to this
Report, which contains (a) the classified annex to this Report
and (b) the classified schedule of authorizations which is
incorporated by reference in the Act and has the same legal
status as a public law. The classified annex to this report
explains the full scope and intent of the Committee's actions
as set forth in the classified schedule of authorizations. The
classified annex has the same status as any Senate Report, and
the Committee fully expects the Intelligence Community to
comply with the limitations, guidelines, directions, and
recommendations contained therein.
This classified supplement to the Committee Report is
available for review by any Member of the Senate, subject to
the provisions of Senate Resolution 400 of the 94th Congress.
The classified supplement is also made available to
affected departments and agencies within the Intelligence
Community.
scope of committee review
As it does annually, the Committee conducted a detailed
review of the Administration's budget request for the National
Foreign Intelligence Program (NFIP) for fiscal year 1996. The
Committee also reviewed the Administration's fiscal year 1996
request for a new intelligence budget category, called the
Joint Military Intelligence Program (JMIP). The Committee's
review included a series of briefings and hearings with the
Director of Central Intelligence (DCI), the Acting Deputy
Assistance Secretary of Defense for Intelligence and Security,
and other senior officials from the Intelligence Community,
numerous staff briefings, review of budget justification
materials and numerous written responses provided by the
Intelligence Community to specific questions posed by the
Committee.
In addition to its annual review of the Administration's
budget request, the Committee performs continuing oversight of
various intelligence activities and programs, to include the
conduct of audits and reviews by the Committee's audit staff.
These inquiries frequency lead to actions initiated by the
Committee with respect to the budget of the activity or program
concerned.
The Committee also reviewed the Administration's fiscal
year 1996 budget request for the Tactical Intelligence and
Related Activities (TIARA) program aggregation of the
Department of Defense. The Committee's recommendations
regarding the programs are provided separately to the Committee
on Armed Services for consideration within the context of the
Committee's annual review of the National Defense Authorization
Act.
follow-up to the ames espionage case
In the wake of last year's controversy surrounding the Ames
espionage case, the Intelligence Community leadership pledged
renewed dedication of the counterintelligence mission. In the
testimony he gave before the Committee at his confirmation
hearing in open session, DCI John Deutch stated that
counterintelligence was one of the four principal purposes
toward which the Intelligence Community should direct its
efforts.
The Committee and CIA Inspector General reports on the Ames
espionage case published last year identified several serious
shortcomings on the part of the Central Intelligence Agency.
The Committee held a closed hearing with Intelligence Community
officials on January 25, 1995, to review progress made to date
in implementing counterintelligence reforms recommended by the
aforementioned reports and by DCI Woolsey. The Committee also
focused on the adequacy of counterintelligence programs and
activities in the context of its review and mark-up of the
Administrator's fiscal year 1996 budget request and provides
several recommendations to enhance U.S. capabilities in this
critical area in the classified annex accompanying this report.
Another issue raised by the Ames case is the apparent
failure of the Intelligence Community to weed out poor
performers. That Aldrich Ames was not only retained but
promoted despite clear problems with alcohol and marginal
performance is testament to a personnel process in need of
reform. The Committee also has found a culture at CIA which has
fostered stagnation at the senior levels of management,
particularly within the Directorate of Operations. Senior
officers are retained without formal evaluation of their
leadership contribution. As a result, mid-grade officers with
demonstrated leadership and new ideas are denied advancement.
As a result, the Committee has included in this bill a
provision requiring the DCI to develop for all civilian
employees in the Intelligence Community personnel procedures to
provide for mandatory retirement for expiration of time in
class and termination based on relative performance, comparable
to sections 607 and 608, respectively, of the Foreign Service
Act of 1980.
focus on high-priority areas
Notwithstanding the rhetorical priority placed on critical
intelligence topics such as proliferation, terrorism, and
counternarcotics, the Committee has identified areas where
insufficient funds have been programmed for new capabilities,
or where activities are funded in the name of high-priority
targets which make little or no contribution to the issue.
Therefore, in the classified annex accompanying this report,
the Committee recommends a number of initiatives to enhance
U.S. capabilities in the areas of proliferation, terrorism, and
counternarcotics.
creation of a joint military intelligence program
As noted above, this year the Administration submitted a
modification of the existing budgeting structure for
intelligence activities and programs, by adding a third budget
category--the Joint Military Intelligence Program--to
supplement the existing NFIP and TIARA. The Administration
acted to resubordinate formerly national (NFIP) and tactical
(TIARA) programs under JMIP and created a new management
structure to oversee JMIP that includes senior officials of the
Intelligence Community and Defense. The JMIP Program Executive
is the Deputy Secretary of Defense, who also chairs the new
Defense Intelligence Executive Board (DIEB)--a senior
management body providing planning, programming, and budget
oversight of defense intelligence. JMIP was initially
established by Secretary of Defense Memorandum dated May 14,
1994, which was superseded by Department of Defense Directive
5205.0, dated April 7, 1995. The Administration is submitting
the first JMIP budget request to the Congress in fiscal year
1996.
The Committee does not yet endorse the decision by the
Deputy Secretary of Defense and the Director of Central
Intelligence (DCI) to develop a new set of funding criteria for
intelligence activities. The Committee understands the Defense
Department's requirement to exercise more top-down oversight
and control of defense intelligence programs and to create a
management forum for evaluating these activities. Additionally,
advances in technology have made the former definitions of
``national'' and ``tactical'' less meaningful to the budget
process. However, the Committee has reservations about whether
the Administration proposal for three intelligence programs is
the optimal solution. Further, the Committee is not convinced
that the presence of the Director of Central Intelligence on
the DIEB, or the ``joint review'' process undertaken by the DCI
and Deputy Secretary of Defense, will ensure that both
Intelligence Community and Defense Department equities are
served in the planning, programming, and management of all
intelligence activities and programs. The Committee plans to
review the appropriate budgeting structure for intelligence as
part of its review of roles and missions of the Intelligence
Community later this year.
In addition, the Committee is concerned that the fiscal
year 1996 budget request includes many programs that are
budgeted in one intelligence program but more appropriately
belong in another intelligence program according to the
definitions set forth by the Deputy Secretary of Defense and
the DCI. A partial listing of such programs is provided by the
Committee for illustrative purposes:
Programs belonging in NFIP because they serve multiple departments
COBRA DANE, which this fiscal year is programmed in
the Administration's budget request for the Arms
Control and Disarmament Agency. The Committee
recommends returning funding responsibility for this
important arms control monitoring capability to the
NFIP;
Air Force's COBRA JUDY, a specialized shipborne
reconnaissance program, funded in TIARA.
Navy's P-3C REEF POINT, a specialized airborne
reconnaissance program, funded in TIARA.
Programs belonging in JMIP because they serve multiple DoD components
Army's Guardrail and Airborne Reconnaissance Low
programs, funded in Tiara;
Air Force's E-8C Joint Surveillance Tracking and
Reconnaissance System, funded in Tiara;
Air Force's Space-Based Infrared System, funded in
Tiara.
Programs belonging in Tiara because they serve single military
departments
Army's European Command Combat Intelligence Readiness
Facility, funded in the NFIP;
Navy's Fleet Ocean Surveillance Information Facility
in the European Theater, funded in the NFIP.
With the exception of Cobra Dane, the Committee makes no
recommendations this fiscal year to transfer any of these
programs, primarily to avoid confusion and the potential for an
unintended ``appropriated-not authorized'' situation. Further,
the Committee does not necessarily agree that last year's
decision by the Administration to consolidate funding for
spaceborne and airborne reconnaissance acquisition in the NFIP
and JMIP respectively (regardless of the intended customer
base) makes sense in light of the new definitions for
programming and budgeting intelligence activities and programs.
The Committee believes that the DCI and Deputy Secretary of
Defense should review jointly the budget categories of these
and other programs prior to the submission of the fiscal year
1997 budget request and make the appropriate adjustments.
Further, the DCI and Deputy Secretary of Defense should
consider whether ``split funding'' arrangements (i.e. funding
provided by more than one intelligence budget category) are
required for those organizations charged with acquisition of
intelligence platforms (i.e. the Defense Airborne
Reconnaissance Office and the National Reconnaissance Office)
on the grounds of improved management efficiency without regard
to the consumer base as defined by Executive Order 12333 and
Department of Defense Directive 5205.0. The Committee requests
that a report assessing these issues and outlining any specific
programmatic adjustments made in the President's fiscal year
1997 budget request to more accurately reflect the intent of
the new budgeting system be provided to the intelligence and
defense committees by March 1, 1996.
committee recommendations on JMIP
Unlike the activities of the National Foreign Intelligence
Program which the Committee also authorizes, many activities
funded by the new Joint Military Intelligence Program are
unclassified. However, the amount of the total fiscal year 1996
budget request for JMIP, like that for the NFIP, is classified,
as is any comprehensive treatment of JMIP program elements.
Given these facts, and in order to provide for the greatest
degree of openness possible, the Committee provides in the
following sections its unclassified recommendations on JMIP
program elements. Further recommendations, as well as
classified details on these unclassified recommendations, are
provided in the classified annex accompanying this bill.
airborne reconnaissance priorities
The Committee believes that it is vital to maintain a
robust airborne reconnaissance force that is capable of
collection satisfying priority intelligence requirements in
peacetime, crisis, and war. The Committee also understands
that, in the current constrained budget environment, choices
need to be made between upgrades to current manned systems and
the development of new unmanned platforms. Due to the
increasing demands and requirements placed on our nation's
current generation of manned reconnaissance systems, the
Committee makes the following recommendations to redirect
resources requested for unmanned aerial vehicle development
activities to several manned reconnaissance upgrades which the
Committee views as essential in order to provide mission-
capable forces to the warfighting Commanders-in-Chief (CINC's).
Accordingly, the Committee recommends changes to the
Administration's fiscal year 1996 budget request to terminate
one of five unmanned aerial vehicle (UAV) programs currently
under development by the Defense Airborne Reconnaissance
Program (DARP) and, instead, to reallocate these resources to
provide for the upgrade of existing manned reconnaissance
platforms.
Conventional high altitude endurance UAV
The Committee recommends termination of the Conventional
High Altitude Endurance Unmanned Aerial Vehicle (CONV HAE UAV)
development effort, a reduction to the DARP in fiscal year 1996
of $117.0 million. The Committee believes that the CONV HAE UAV
will not provide an increased capability over the current U-2
airborne reconnaissance fleet and is therefore not required.
The U-2 is an operational system currently supporting
warfighting and national intelligence requirements. The CONV
HAE UAV is an Advanced Concept Technology Demonstration (ACTD)
project and has not achieved first flight.
In fact, the U-2 is a much more capable multi-sensor
reconnaissance aircraft today than the CONV HAE UAV is designed
to be. The U-2 fleet provides radar, electro-optical, and film
imagery as well as electronic intelligence collection support
to national, theater, and tactical commanders. The CONV HAE UAV
will have only imagery sensors, and these will be less capable
than those on-board the U-2. The U-2 has a much greater payload
capacity than the CONV HAE UAV design. The U-2 affords a deeper
look capability than planned for the CONV HAE UAV. Further the
Committee understands that the CONV HAE UAV operational
concept, now under development, is virtually identical to that
of the U-2.
Cost comparisons are difficult to make because the U-2 is
an existing asset flying missions on a daily basis and the CONV
HAE UAV is an ACTD and has no flight experience. However,
information provided to the Committee by the DARP indicates
that the flying hour costs of the UAV are comparable to the U-
2.
The Committee believes that development by the DARP of the
low observable high altitude endurance unmanned aerial vehicle
(LO HAE UAV) as a complementary system to the U-2 will provide
the most capability to national policymakers and the
warfighter. The Committee strongly suggests that the Department
investigate increases in capability that can be achieved in the
LO HAE UAV if the goal for unit fly-away cost is increased from
$10.0 million to $20.0 million. The Committee requests that the
DARP prepare an analysis on this alternative and provide it to
the intelligence and defense committees by March 1, 1996.
RC-135V/W Rivet Joint engine upgrades
Rivet Joint is an Air Force reconnaissance program which
provides all-weather, worldwide signals intelligence collection
support to theater commanders. The Committee has become
concerned with the high OPTEMPO of the RC-135V/W Rivet Joint
reconnaissance fleet. The RC-135 airframes currently are
logging an extraordinary number of annual flight hours.
Additionally, the schedule frequency and the extended mission
times of the Rivet Joint program contribute significantly to
the fuel and operating costs of the aircraft. Further, the
current engines do not meet State III noise levels or EPA
emission standards.
The Committee is aware that the Air Force is considering
the establishment of a re-engining program for the RC-135
aircraft. Re-engining with the CFM-56 engines common to the
tanker fleet and commercial airlines would increase RC-135
nominal operating altitudes considerably, thereby greatly
enhancing sensor field-of-view and area coverage, decreasing
fuel consumption, increasing on-station time, and improving
short-field capability for contingency operations. Current
tanker support requirements and tanker flying could also be
reduced significantly.
Therefore, the Committee recommends an authorization of
$79.5 million in fiscal year 1996 to begin re-engining the RC-
135 fleet. The Committee expects the DARP to budget the
additional funds required to continue re-engining in fiscal
year 1997 and beyond.
U-2 upgrades
While the Committee is supportive of the DARP initiative to
define a Joint Airborne SIGINT Architecture (JASA), there is
concern about the affordability of this approach for the
Military Departments. The Committee is also concerned with the
Defense Department's apparent decision not to continue
upgrading current platforms while focusing funding exclusively
on a new development program. Therefore, the Committee
recommends an authorization of $20.0 million in fiscal year
1996 for the DARP to initiate a sensor upgrade program for the
U-2 fleet. Further details about the proposed upgrade are
contained in the classified annex accompanying this bill. The
Committee expects the DARP to budget for the remaining funds
required to complete this upgrade in fiscal year 1997 and
beyond. The also Committee believes that this upgrade should be
fully compliant with JASA standards.
The Committee also makes a recommendation to improve the
defensive capabilities of the U-2 fleet and provides $13.0
million in fiscal year 1996 for this purpose. Details of this
initiative are included in the classified annex accompanying
this bill. As with the proposed sensor upgrade, the Committee
expects the DARP to budget for the remaining funds required to
complete this upgrade in fiscal year 1997 and beyond.
defense intelligence counterdrug analysis initiatives
In line with the Committee's efforts to enhance
intelligence capabilities in the area of counternarcotics and
other high-priority issues, the Committee recommends an
authorization of an additional $7.0 million in fiscal year 1996
to the Defense Intelligence Counterdrug Program (DICP). These
funds should be applied against a variety of high-priority,
counterdrug analysis and connectivity programs identified by
the DICP Program Manager. Details of this initiative are
included in the classified annex accompanying this bill.
information systems security
While the Administration's fiscal year 1996 budget request
for DoD's Information Systems Security Program provides for a
significant increase over the amounts requested in fiscal year
1995, the Committee notes that information security (INFOSEC)
personnel and resources will still have declined by roughly 40%
since 1987. Meanwhile, in planning for future conflicts, the
Department of Defense is deliberately placing increased
reliance on information systems to compensate for a reduced
force structure.
The Committee does not believe that the Department of
Defense has adequately assessed U.S. information security
requirements. Further, it does not believe that there is a
coherent plan or program to rectify the vulnerabilities
identified by the Joint Security Commission, the Commission on
Roles and Missions, and independent organizations such as the
RAND Corporation. An effective and comprehensive U.S. policy
needs to be developed in order to prepare an integrated
response that recognizes not only the vulnerabilities of U.S.
government communications, but the vulnerabilities of the
underlying Public Switch Network (PSN). In that regard, it is
not clear what benefits can be achieved through increased DoD
spending on information security when over 95% of DoD
communications travel over the PSN and the PSN is not protected
against attacks that sophisticated adversaries may employ in
future conflicts. In sum, a comprehensive U.S. INFOSEC plan
urgently needs to be developed.
The Committee therefore requests the DCI and the Secretary
of Defense to prepare a comprehensive report which: (a)
identifies the key threats to U.S. computers and communications
systems, including those of both the government and the private
sector (i.e. the Public Switch Network upon which the
government heavily depends); and, (b) provides a comprehensive
plan for addressing the threats described in section (a), to
include any necessary legislative or programmatic
recommendations required to protect government or private U.S.
information systems. The report shall be provided to the
intelligence and defense committees not later than March 1,
1996. In the absence of such a plan, the Committee remains
skeptical regarding the benefits that can be achieved through
increased funding for the Department of Defense Information
Systems Security Program.
commercial off-the-shelf technology
It is the sense of the Committee that, to the extent
practicable, all high performance computing and communications
(HPCC) equipment and products purchased with funds authorized
in this Act should be Commercial-Off-The-Shelf (COTS) or
modified COTS.
The Department of Defense has already adopted a COTS policy
in its purchase of high performance computing and
communications systems, with significant cost savings to the
taxpayers and with excellent performance results. Moreover, the
Department's September 1994 Defense Technology Plan, prepared
by the Director of Defense Research and Engineering, recommends
the utilization of ``more commercially viable technologies'' in
the purchase of high performance computer systems. (pp. 8-7,
Computing and Software, Defense Technology Plan.)
The Committee also believes that the application of a COTS
technology policy among the intelligence agencies should be
adopted and implemented beginning in fiscal year 1996. The
Committee is hopeful that a COTS policy for the procurement of
high performance computing and communications equipment could
save millions of dollars and maintain the quality and
performance standards required by the intelligence agencies
both now and in the future.
Therefore, the Committee requests the agencies receiving
funding authorized in this bill to begin the process of
adopting COTS technology procurement procedures in their high
performance computing and communications programs and to
report, through the DCI, to the Intelligence and Defense
Committees not later than May 1, 1996, regarding compliance
with this request.
technologies to improve sound processing devices used by the profoundly
deaf
Recent technological advances have made it possible for the
medical community to provide substantial hearing to profoundly
deaf individuals who cannot benefit from conventional hearing
aids. Surgically implanted electrodes, combined with external
speech processing devices, have the demonstrated ability to
provide sound information across the frequency range even at
low volume (i.e. 30 decibels). Some children and adults, who
would have had no option other than to use sign language, now
have access to spoken language and can function in school and
the workplace without any use of sign language. While the
benefits can be enormous, it is also true that the quality of
sound provided by cochlear implants is still crude compared to
normal hearing. Remarkable progress has been made, but many
technical issues remain, including the reliability, size, and
the effectiveness of the hardware and software used by
manufacturers of sound processing devices.
The Intelligence Community, and the National Security
Agency in particular, is a world leader in speech and signal
processing. It is quite possible that some of the sophisticated
technologies employed by the Intelligence Community could
increase the signal-to-noise ratio in the sound processing
devices used by the profoundly deaf. The Committee has recently
seen how imaging technology developed by the Intelligence
Community can be adapted to cancer screening by the medical
community, and it is the Committee's hope that similar success
can be achieved in this area. The Committee therefore requests
the Intelligence Community to contact U.S. manufacturers of
cochlear implant devices, review their technical needs, and
identify any technologies that might be shared with such
manufacturers in order to improve the quality of hearing for
the hearing impaired. The Committee requests a report outlining
the results of the Intelligence Community's review, to include
identification of any capabilities that should be shared with
U.S. manufacturers of cochlear implants, not later than May 1,
1996.
intelligence authorization act fiscal year 1996 section-by-section
analysis and explanation
Title I--Intelligence activities
Section 101 lists the departments, agencies, and other
elements of the United States Government for whose intelligence
activities and programs the Act authorizes appropriations for
fiscal year 1996.
Section 102 makes clear that the details of the amounts
authorized to be appropriated for intelligence activities and
programs and personnel ceilings covered under this title for
fiscal year 1996 are contained in a classified Schedule of
Authorizations. The Schedule of Authorizations is incorporated
into the Act by this section.
Section 103 authorizes the Director of Central
Intelligence, with the approval of the Director of the Office
of Management and Budget, in fiscal year 1996, to expand the
personnel ceilings applicable to the components of the
Intelligence Community under section 102 by an amount not to
exceed two percent of the total of the ceilings applicable
under section 102. The Director may exercise this authority
only when necessary to the performance of important
intelligence functions and any exercise of this authority must
be reported to the two intelligence committees of the U.S.
Congress.
Section 104 provides details concerning the number and
composition of the Intelligence Community Management Account of
the Director of Central Intelligence.
Subsection (a) authorizes appropriations in the amount of
$93,283,000 for fiscal year 1996 for the staffing and
administration of the various components under the Community
Management Account of the Director of Central Intelligence. It
also authorizes funds identified for the Advanced Research and
Development Committee and the Environmental Task Force to
remain available for two years.
Subsection (b) authorizes 247 full-time personnel for the
components under the Community Management Staff for fiscal year
1996 and provides that such personnel may be permanent
employees of the Staff or detailed from various elements of the
United States Government.
Subsection (c) requires that personnel be detailed on a
reimbursable basis except for temporary situations.
Title II--Central Intelligence Agency retirement and disability system
and related provisions
Authorization of Appropriations
Section 201 authorizes appropriations in the amount of
$213,900,000 for fiscal year 1996 for the Central Intelligence
Agency Retirement and Disability Fund.
Title III--General provisions
Section 301 provides that appropriations authorized by the
conference report for salary, pay, retirement, and other
benefits for federal employees may be increased by such
additional or supplemental amounts as may be necessary for
increases in such compensation or benefits authorized by law.
Section 302 provides that the authorization of
appropriations by the conference report shall not be deemed to
constitute authority for the conduct of any intelligence
activity which is not otherwise authorized by the Constitution
or laws of the United States.
Section 303 permits the President to delay the imposition
of sanctions or related actions when necessary to protect
against the compromise of an intelligence source or method or
an ongoing criminal investigation. Delays can be important when
the life or safety of a cooperating intelligence source is at
stake. Use of the term ``compromise'' in the section is
intended to encompass actions that would result in disruption
or cessation of a criminal investigation or the loss or
rendering ineffectual of an intelligence source or method.
The section provides the President must promptly report the
rationale and circumstances that led to the delay, with respect
to intelligence sources or methods, to the Senate and House
intelligence oversight committees. The President must include
in that report a description of the efforts being made to
address the circumstances that led to the delay and an estimate
of the date by which the delay will be lifted. A delay under
this section cannot be indefinite in duration.
The Committee recognizes that intelligence collection on
proliferation targets and law enforcement investigations are
critical components of the nation's nonproliferation efforts.
In some circumstances, the imposition of sanctions could
inhibit the full flow of information about weapons
proliferation that might otherwise be acquired, or hinder a law
enforcement initiative. The net result may be to undermine
rather than enhance our nonproliferation objectives. This
section is intended to be limited to proliferation sanctions,
including those in the chemical and biological warfare,
missile, and nuclear contexts.
A delay under this section is not intended to protect
generic or speculative intelligence interests. A delay would be
appropriate to protect a sensitive intelligence source or
method, for example, where:
the Intelligence Community is actively collecting
important foreign intelligence and imposition of
sanctions will result in serious harm to a source or
the loss of the source of collection; or
the Intelligence Community is engaged in an
operational activity that would be seriously hampered
by the imposition of sanctions.
Section 304 adds a new subsection to section 8432(g) of
title 5, United States Code, to provide that the Government's
contribution to the Thrift Savings Plan under the Federal
Employees Retirement System (FERS) and interest earned on that
contribution shall be forfeited if the employee's annuity has
been forfeited under subchapter II of Chapter 83, title 5,
United States Code. This provision closes a loophole that was
created when the FERS was established.
Prior to the enactment of the FERS, an employee's
retirement annuity was based entirely on contributions made by
the employee and by the United States Government to the
applicable retirement fund. Under subchapter II of Chapter 83,
any employee convicted of various national security offenses,
including espionage, would forfeit his annuity and be entitled
to receive only this monetary contributions to the annuity. A
new retirement benefit, however, was created with the
establishment of FERS, payable under the Thrift Savings Plan.
The Thrift Savings Plan now permits the employee to
contribute a salary percentage into the Government-managed fund
and requires that the Government also contribute to the fund on
the employee's behalf. An oversight in enacting the FERS was
that the forfeiture provisions of subchapter II were not
amended to include the Government's contributions to the Plan.
This situation clearly undermines the intent of subchapter II
by permitting an employee convicted of espionage to retain the
Government's contributions to the Plan. This provision would
allow for the forfeiture of the Government's contribution to
the Plan and attributable earnings on that contribution in
situations where an individual was convicted of any of the
various national security offenses cited in subchapter II.
Section 305 amends section 8312 of title 5, United States
Code, to restore spousal pension benefits to the spouse of a
federal employee whose annuity or retired pay has been
forfeited under section 9312 or 8313, as amended, if the spouse
cooperated in the criminal investigation and prosecution of the
employee. Enactment of this legislation will help to protect
the national security interests of the United States by
encouraging the spouse of a federal employee who knows or
suspects that his or her consort is engaged in espionage
activities to inform the Government and to cooperate in a
subsequent criminal investigation and prosecution. Current law
actually discourages a witting spouse from cooperating with the
Government, since the person's spousal pension benefits will be
forfeited upon the conviction of his or her consort, even if
the spouse has cooperated with the Government.
Section 306 restores the authority of the Office of
Personnel Management (OPM) to extend ``de-Hatching'' to
employees of the agencies listed in 5 U.S.C.
Sec. 7323(b)(2)(B)(i).
Previously, under 5 U.S.C. Sec. 7323, OPM had the authority
to designate certain municipalities and other political
subdivisions in which federal employees in both competitive and
excepted services could actively participate in local partisan
elections. (Such designation of municipalities and political
subdivisions by OPM is commonly referred to as ``de-
Hatching''.) However, when this authority was amended by Pub.
L. 103-94 and recodified in 5 U.S.C. Sec. 7325, the authority
was granted only ``without regard to the prohibitions in
paragraphs (2) and (3) of section 7323(a)''. The prohibitions
in section 7323(a) apply to the federal employees, both
competitive and excepted service. However, employees of NSA,
CIA, DIA, and the other agencies listed in 5 U.S.C.
Sec. 7323(b)(2)(B)(i) are subject to additional prohibitions
under section 7323(b)(2)(A) which section 7325 does not permit
OPM to disregard. Thus, OPM cannot extend de-Hatching to
employees of the listed agencies and the implementing interim
regulations issued by OPM (59 Fed. Reg. 5313 (1994) to be
codified at 5 C.F.R. Part 733) reflect this restriction.
This provision would amend the ``de--Hatching'' provision
(5 U.S.C. Sec. 7325) to include the excepted services in the
category of federal employees that OPM may permit to take an
active part in local (not Federal) political campaigns.
Section 307 requires the DCI to report to the intelligence
oversight committees within three months detailed personnel
procedures to be implemented across the intelligence community
to provide for mandatory retirement at expiration of time in
class and termination based on relative performance similar to
comparable provisions in sections 607 and 608 of the Foreign
Service Act of 1980 (Title 22 U.S.C. 4007 and 4008).
In the wake of the Ames case, the Committee urged the
Intelligence Community to adopt policies to weed out poor
performers and develop headroom for young people coming up. The
Director of Central Intelligence and Secretary of Defense were
directed in the FY1995 Intelligence Authorization Act to
provide a report by December 1, 1994, on the advisability of
providing for mandatory retirement at expiration of time in
class. It was never received. The Committee has reviewed the
issue and determined that such a policy, combined with a
``relative performance'' policy, is advisable and is now
directing the DCI to move forward and develop procedures for
implementation.
Section 308 authorizes assistance to a foreign country's
counterterrorism efforts, notwithstanding any other law, if it
is provided for the purpose of protecting U.S. persons or
property or furthering the apprehension of those responsible
for any such acts of terrorism.
Title IV--Central Intelligence Agency
Section 401 amends section 2(f) of the CIA Voluntary
Separation Pay Act, 50 U.S.C. Sec. 403-4(f), to extend the
Agency's authority to offer separation incentives until
September 30, 1999. Without this amendment, the Agency's
authority to offer such incentives will expire on September 30,
1997. In light of the Committee's concern that this authority
may have been used in the past in lieu of more rigorous
personnel policies, this authority is extended with the
understanding that the Intelligence Community will be
implementing such policies, as directed in Section 307 of this
Act, and that this authority can be used to ease the transition
to the more rigorous, performance-based criteria and policy.
Section 402 authorizes the Director to establish, as a
demonstration project, a volunteer service program for fiscal
years 1996 through 2001 whereby no more than 50 retirees can
volunteer their services to the CIA to assist the Agency in its
systematic and or mandatory review for declassification for
downgrading of classified information under certain Executive
Orders and P.L. 102-256. The provision limits expenditures to
no more than $100,000.
This section authorizes the Agency to pay costs incidental
to the use of the services of volunteers, such as training,
equipment, lodging, subsistence, equipment, and supplies. It
also ensures that volunteers are covered by workers
compensation (the Federal Employees Compensation Act). Without
this legislation, the CIA would be unable to pay costs incident
to the use of gratuitous services provided by volunteers, such
as training and equipment. The program established under this
section will be temporary and limited.
Section 403(a) modifies the CIA Inspector General statute
to require the IG to report of violations of Federal law by any
person, as opposed to violations by officers or employees of
the CIA. It also allows the reports to go directly from OIG to
DoJ, rather than through the DCI, although the DCI must receive
a copy of the report. This is consistent with the Inspector
General of 1978 and enhances the independence of the IG.
Section 403(b) clarifies the CIA IG statute to ensure that
the identity of an employee who has been granted
confidentiality can be disclosed to the DoJ official
responsible for determining whether a prosecution should be
undertaken. Current law already provides for this but this
provision would clarify and simplify the process.
Section 404 requires an annual report on all liaison
relationships, to include the names of governments and
entities, the purpose of each relationship, the resources
dedicated, a description of the intelligence provided and
received, and any significant changes anticipated. This
responds to the longstanding concerns of the Committee, most
recently highlighted by the events in Guatemala, about liaison
relationships and the lack of reporting to Congress on
potential ``flaps.''
Title V--Department of Defense
Section 501 amends section 1605(a) of title 10, United
States Code, and section 431 of title 37, United States Code,
to provide to civilian personnel and members of the armed
forces of the Defense HUMINT Service outside the United States
benefits and allowances comparable to those provided by the
Secretary of State to officers and employees of the Foreign
Service.
The Secretary of Defense has the authority to provide to
civilian personnel and members of the armed forces assigned to
the Defense Attache Offices and the Defense Intelligence Agency
Liaison Offices outside the United States benefits and
allowances comparable to those provided by the Secretary of
State to officers and employees of the Foreign Service. This
authority was attained in 1983 (P.L. 98-215).
With the consolidation of Department of Defense human
intelligence into the Defense HUMINT Service, the Defense
Intelligence Agency will be responsible for a significant
number of employees overseas. Although a number of these
employees may be assigned to Defense Attache Offices or Defense
Intelligence Agency Liaison Offices outside the United States,
there will be a significant number of employees who will be
assigned to other overseas locations. Since the Agency's
authority to provide benefits and allowances to overseas
employees is limited to the Defense Attache Office and the
Defense Intelligence Agency Liaison Offices, inequities will
once again occur. This amendment would ensure comparable
benefits for civilian and military personnel assigned to the
Defense HUMINT Service overseas.
The benefits authorized in this provision are intended to
supplement compensation packages that were designed for
personnel who would be stationed on a military base, with all
the benefits a base provides. Thus the authority to offer these
additional benefits should only be exercised when a DIA officer
is not stationed near a military base.
Section 502 extends for five additional years the sunset
provision for the exemption for certain DoD intelligence
activities from administrative statutes applicable to federal
agencies which are inconsistent with establishing and
maintaining bona fide private commercial activities. Compliance
with such statutes is excused where compliance would compromise
the commercial activity concerned as an agency or
instrumentality of the United States Government.
This exemption was enacted in 1991, when the Secretary of
Defense was provided a statutory framework clarifying his
authority to engage in intelligence commercial activities. At
that time, the Committee noted that ``such activities could, if
not adequately coordinated and carefully regulated, lead to
abuses and improprieties, or could lead to actions which might
provide politically embarrassing to the United States.'' To
ensure prudent exercise of the authority, the subchapter
authorizing the activity imposed approval and coordination
requirements as well as congressional oversight and reporting
requirements. To further guard against abuse of the new
authority, and to ensure adequate congressional review, the
provision contained a clause which stated that no commercial
activity may be initiated pursuant to this subchapter after
December 31, 1995. The authority has never been used, however,
due largely to significant budget cuts affected in December
1992. Recently, however, DoD has enhanced its HUMINT efforts
and is working closely with CIA to develop the skills, plans,
and infrastructure necessary to effectively utilize this
authority. Thus, the Committee is extending the sunset
provision to December 31, 2000.
Section 503 would authorize the Secretary of Defense to
send civilian employees in the Military Departments' Civilian
Intelligence Personnel Management System (CIPMS) to be students
at accredited professional, technical, and other institutions
of higher learning for training at the undergraduate level.
This authority would be similar to that already granted to the
Defense Intelligence Agency (DIA) in 10 U.S.C. section 1608
(Public Law 101-93, title V, section 507(a)(1), Nov 30, 1989,
103 Stat. 1710) and the National Security Agency (NSA) in 50
U.S.C. 402 note. The purpose of the new section is to establish
an undergraduate training program, including training which may
lead to the baccalaureate degree, to facilitate the recruitment
of individuals, particularly minority, to facilitate the
recruitment of individuals, particularly minority, women, and
handicapped high school students with a demonstrated capability
to develop skills critical to the intelligence missions of the
Military Departments in areas such as computer science,
engineering, foreign language, and area studies. In exchange
for this financial assistance from the respective CIPMS
organization, the student participant would undertake an
obligation to work for a period of one-and-one half years for
each year or partial year of schooling.
This mission of the intelligence entities of the Unites
States Government demand employees of extraordinary aptitude
and strong undergraduate training. Those same entities must
compete with a private sector--capable of offering more
favorable compensation arrangements--that in most instances has
been able to outbid the USG in terms of attracting qualified
minority candidates. Statistics in recent years indicate that
the success of the Military Departments' CIPMS to attract
minority group candidates has been marginal.
This proposal is designed to enhance the capabilities of
the intelligence elements of the Military Departments to (i)
ensure equal employment opportunity with their civilian ranks
through affirmative action; (ii) develop and retain personnel
trained in skills essential to the effective performance of
their intelligence mission; and, (iii) compete on equal footing
with other Intelligence Community entities for personnel with
critical skills.
Title VI--Federal Bureau of Investigation
Section 601 would amend the Fair Credit Reporting Act
(FCRA) (15 U.S.C. 1681f) to grant the Federal Bureau of
Investigation (FBI) access to certain information in consumer
credit records in counterintelligence investigations.
A similar provision was included in the Intelligence
Authorization Act for FY 1995 as reported by this Committee.
The provision was dropped in conference at the request of the
House Committee on Banking, Finance, and Urban Affairs upon
assurances that that Committee would pursue similar
legislation. The U.S. House of Representatives ultimately
adopted H.R. 5178 which contained a provision along the lines
of that which is included as section 601 of this Act. The bill
was never acted upon by the Senate.
This provision would provide a limited expansion of the
FBI's authority in counterintelligence investigations
(including terrorism investigations), to obtain a consumer
credit report with a court order. In addition, it would allow
the FBI to use a ``National Security Letter,'' i.e. a written
certification by the FBI Director or the Director's designee,
to obtain from a consumer credit agency the names and addresses
of all financial institutions at which a consumer maintains an
account, as well as certain identifying information.
Under current law, when appropriate legal standards are
met, FBI is able to obtain mandatory access to credit records
by means of a court order or grand jury subpoena (see the FCRA,
15 U.S.C. 1681b(1)), but such an option is available to the FBI
only after a counterintelligence investigation has been
formally converted to a criminal investigation or proceeding.
Many counterintelligence investigations never reach the
criminal stage but proceed for intelligence purposes or are
handled in diplomatic channels.
In addition FBI presently has authority to use the National
Security Letter mechanism to obtain two types of records:
financial institution records (under the Right to Financial
Privacy Act, 12 U.S.C. 3414(a)(5)) and telephone subscriber and
toll billing information (under the Electronic Communications
Privacy Act, 18 U.S.C. 2709). Expansion of this extraordinary
authority is not taken lightly by the Committee, but the
Committee has concluded that on this instance the need is
genuine, the threshold for use is sufficiently rigorous, and,
given the safeguards built in to the legislation, the threat to
privacy is minimized.
Under a provision of the Right to Financial Privacy Act
(RFPA) (12 U.S.C. 3414(a)(5)), the FBI is entitled to obtain
financial records from financial institutions, such as banks
and credit card companies, by means of a National Security
Letter when the Director or the Director's designee certifies
in writing to the financial institution that such records are
sought for foreign counterintelligence purposes and that there
are specific and articulable facts giving reason to believe
that the customer or entity whose records are sought is a
foreign power or an agent of a foreign power, as those terms
are defined in section 101 of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1801 et seq.).
The FBI considers such access to financial records crucial
to trace the activities of suspected spies or terrorists. The
need to follow financial dealings in counterintelligence
investigations has grown as foreign intelligence services
increasingly operate under non-official cover, i.e., pose as
business entities or executives, and as foreign intelligence
service activity has focused increasingly on U.S. economic
information.
FBI's right of access under the Right to Financial Privacy
Act cannot be effectively used, however, until the FBI
discovers which financial institutions are being utilized by
the subject of a counterintelligence investigation. Consumer
reports maintained by credit bureaus are a ready source of such
information, but, although such reports are readily available
to the private sector, they are not available to FBI
counterintelligence investigators. Under section 608 of the
Fair Credit Reporting Act, without a court order, FBI
counterintelligence officials, like other government agencies,
are entitled to obtain only limited information from credit
reporting agencies--the name, address, former addresses, places
of employment, and former places of employment, of a person--
and this information can be obtained only with the consent of
the credit bureau.
FBI has made a specific showing to the Committee that the
effort to identify financial institutions in order to make use
of FBI authority under the Right to Financial Privacy Act can
not only be time-consuming and resource-intensive, but can also
require the use of investigative techniques--such as physical
and electronic surveillance, review of mail covers, and
canvassing of all banks in an area--that would appear to be
more intrusive than the review of credit reports. FBI has
offered a number of specific examples in which lengthy,
intensive and intrusive surveillance activity was required to
identify financial institutions doing business with a suspected
spy or terrorist.
Section 601 of the instant legislation would amend FCRA by
adding a new section 624, consisting of 13 paragraphs.
Paragraph 624(a) of the amended FCRA requires a consumer
reporting agency to furnish to the FBI the names and addresses
of all financial institutions at which a consumer maintains or
has maintained an account, to the extent the agency has that
information, when presented with a written request signed by
the FBI Director or the Director's designee, which certifies
compliance with the subsection. The FBI Director or the
Director's designees may make such certification only if the
Director or the Director's designee has determined in writing
that such records are necessary for the conduct of an
authorized foreign counterintelligence investigation and that
there are specific and articulable facts giving reason to
believe that the person whose consumer report is sought is a
foreign power, a non-U.S. official of a foreign power, or an
agent of a foreign power (as defined in Section 101 of the
Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801
et seq.)) and is engaged in terrorism or other criminal
clandestine intelligence activities.
The requirement that there be specific and articulable
facts giving reasons to believe that a U.S. person is an agent
of a foreign power before FBI can obtain access to a consumer
report is consistent with the standards in the Right to
Financial Privacy Act, 12 U.S.C. 3414(a)(5)(A), and the
Electronic Communications Privacy Act, 18 U.S.C. 2709(b).
However, in contrast to those statutes, the Committee has
drafted the FCRA certification requirement to provide that the
FBI demand submitted to the consumer reporting agency make
reference to the statutory provision without providing the
agency with a written certification that the subject of the
consumer report is believed to be an agent of a foreign power.
FBI would still be required to record in writing its
determination regarding the subject, and the credit reporting
agency would be able to draw the necessary conclusion, but the
Committee believes that its approach would reduce the risk of
harm from the certification process itself to the person under
investigation. A similar approach is taken in paragraph 624(b),
described below.
Section 605 of the FCRA, 15 U.S.C. 1681c, defines
``consumer report'' in a manner that prohibits the
dissemination by credit reporting agencies of certain older
information except in limited circumstances. None of these
excepted circumstances would apply to FBI access under proposed
FCRA paragraph 624(a) (or proposed FCRA paragraph 624(b)).
Accordingly, FBI access would be limited to ``consumer
reports'' as defined in 605.
The term ``an authorized foreign counterintelligence
investigation'' includes those FBI investigations conducted for
the purpose of countering international terrorist activities as
well as those FBI investigations conducted for the purpose of
countering the intelligence activities of foreign powers. Both
types of investigations are conducted under the auspices of the
FBI's Intelligence Division, headed by an FBI Assistant
Director.
As is the case with the FBI's existing National Security
Letter authority under the Right to Financial Privacy Act (see
Senate Report 99-307, May 21, 1986, p. 16; House Report 99-952,
October 1, 1986, p. 23), the Committee expects that, if the
Director of the FBI delegates this function under paragraph
624(a), as well as under paragraph 624(b) discussed below, the
Director will delegate it no further down than the level of FBI
Deputy Assistant Director. (There are presently two Deputy
Assistant Directors for the National Security Division, one
with primary responsibility for counterintelligence
investigations and the other with primary responsibility for
international terrorism investigations.)
Paragraph 624(b) would give the FBI mandatory access to the
consumer identifying information--name, address, former
addresses, places of employment, or former places of
employment--that it may obtain under current section 608 only
with the consent of the credit reporting agency. A consumer
reporting agency would be required to provide access to such
information when presented with a written request signed by the
FBI Director or the Director's designee, which certifies
compliance with the subsection. The Director or the Director's
designee may make such a certification only if the Director or
the Director's designee has determined in writing that such
information is necessary to the conduct of an authorized
foreign counterintelligence investigation and that there is
information giving reason to believe that the person about whom
the information is sought has been, or is about to be, in
contact with a foreign power or an agent of a foreign power, as
defined in Section 101 of the Foreign Intelligence Surveillance
Act of 1978 (50 U.S.C. 1801 et seq.).
FBI officials have indicated that they seek mandatory
access to this identifying information in order to determine if
a person who has been in contact with a foreign power or agent
is a government or industry employee who might have access to
sensitive information of interest to a foreign intelligence
service. Accordingly, the Committee has drafted this provision
to require that such limited information can be provided only
in circumstances where the consumer has been or is about to be
in contact with the foreign power or agent.
The Committee has also drafted paragraphs 624(a) and 624(b)
in a manner intended to make clear the Committee's intent that
the FBI may use this authority to obtain this information only
as regards those persons who either are a foreign power or
agent thereof or have been or will be in contact with a foreign
power or agent. Although the consumer records of another
person, such as a relative or friend of an agent of a foreign
power, or identifying information respecting a relative or
friend of a person in contact with an agent of a foreign power,
may be of interest to FBI counterintelligence investigators,
they are not subject to access under paragraphs 624(a) and
624(b).
It is not the Committee's intent to require any credit
reporting agency to gather credit or identifying information on
a period for the purpose of fulfilling an FBI request under
paragraphs 624(a) and 624(b). A credit reporting agency's
obligation under these provisions is to provide information
responsive to the FBI's request that the credit reporting
agency already has in its possession.
Paragraph 624(c) provides that, if requested in writing by
the FBI, a court may issue an order ex parte directing a
consumer reporting agency to furnish a consumer report to the
FBI upon a showing in camera that the report is necessary for
the conduct of an authorization foreign counterintelligence
investigation and that there are specific and articulable facts
giving reason to believe the consumer is an agent of a foreign
power and is engaged in international terrorism or clandestine
intelligence activities that may involve a crime.
Paragraph 624(d) provides that no consumer reporting agency
or officer, employee, or agent of such institution shall
disclose to any person, other than those officers, employees or
agents of such institution necessary to fulfill the requirement
to disclose information to the FBI under subsection 624, that
the FBI has sought or obtained a consumer report or financial
institution, or identifying information respecting any consumer
under paragraphs 624, nor shall such agency, officer, employee,
or agent include in any consumer report any information that
would indicate that the FBI has sought or obtained such
information. The prohibition against including such information
in a consumer report is intended to clarify the obligations of
the consumer reporting agencies. It is not intended to preclude
employees of consumer reporting agencies from complying with
company regulations or policies concerning the reporting of
information, nor to preclude their complying with a subpoena
for such information issued pursuant to appropriate legal
authority.
Paragraph 624(d) departs from the parallel provision of the
RFPA by clarifying that disclosure is permitted within the
contacted institution to the extent necessary to fulfill the
FBI request. The Committee has not concluded, or otherwise
taken a position whether, that disclosure for such purpose
would be forbidden by the RFPA; indeed, practicalities would
dictate that the provision not be interpreted to exclude such
disclosure. However, the Committee believes that clarification
of the obligation for purposes of the FCRA is desirable.
Paragraph 624(e) requires the FBI, subject to the
availability of appropriations, to pay to the consumer
reporting agency assembling or providing credit records a fee
in accordance with FCRA procedures for reimbursement for costs
reasonably necessary and which have been directly incurred in
searching for, reproducing, or transporting books, papers,
records, or other data required or requested to be produced
under section 624. The FBI informs the Committee that such
reports are commercially available for approximately $7 to $25
and that FBI could expect to pay fees in approximately that
range. FBI officials have advised the Committee that the costs
of such reports would be easily recouped from the savings
afforded by the reduced need for other investigative techniques
aimed at obtaining the same information.
Paragraph 624(f) prohibits the FBI from disseminating
information obtained pursuant to section 624 outside the FBI,
except as may be necessary for the approval or conduct of a
foreign counterintelligence investigation, or, where the
information concerns military service personnel subject to the
Uniform Code of Military Justice, to appropriate investigation
authorities in the military department concerned as may be
necessary for the conduct of a joint foreign counter-
intelligence investigation with the FBI. Since the military
departments have concurrent jurisdiction to investigate and
prosecute military personnel subject to the Uniform Code of
Military Justice, paragraph 624(g) permits the FBI to
disseminate consumer credit reports it obtains pursuant to this
section to appropriate military investigative authorities where
a foreign counterintelligence investigation involves a military
service person and is being conducted jointly with the FBI.
Paragraph 624(g) provides that nothing in section 624 shall
be construed to prohibit information from being furnished by
the FBI pursuant to a subpoena or court order, or in connection
with a judicial or administrative proceeding to enforce the
provisions of the FCRA. The paragraph further provides that
nothing in section 624 shall be construed to authorize or
permit the withholding of information from the Congress.
Paragraph 634(h) provides that on a semiannual basis the
Attorney General shall fully inform the Permanent Select
Committee on Intelligence and the Committee on Banking,
Finance, and Urban Affairs of the U.S. House of
Representatives, and the Select Committee on Intelligence and
the Committee on Banking, Housing, and Urban Affairs of the
U.S. Senate concerning all requests made pursuant to section
624.
Seminannual reports are required to be submitted to the
intelligence committees on (1) use of FBI's mandatory access
provision of the RFPA by section 3414(a)(5)(C) of title 15,
United States Code; and (2) use of the FBI's
counterintelligence authority, under the Electronic Privacy
Communications Act of 1986, to access telephone subscriber and
toll billing information by section 2709(e) of title 18, United
States Code. The Committee expects the reports required by FCRA
paragraph 624(h) to match the level of detail included in these
reports, i.e., a breakdown by quarter, by number of requests,
by number of persons or organizations subject to requests, and
by U.S. persons and organizations and non-U.S. persons and
organizations.
Paragraphs 624(i) through 624(m) parallel the enforcement
provisions of the Right to Financial Privacy Act, 12 U.S.C.
3417 and 3418.
Paragraph 624(i) establishes civil penalties for access or
disclosure by an agency or department of the United States in
violation of section 624. Damages, costs and attorney fees
would be awarded to the person to whom the consumer reports
related in the event of a violation.
Paragraph 624(j) provides that whenever a court determines
that any agency or department of the United States has violated
any provision of section 624 and that the circumstances
surrounding the violation raise questions of whether an officer
or employee of the agency or department acted willfully or
intentionally with respect to the violation, the agency or
department shall promptly initiate a proceeding to determine
whether disciplinary action is warranted against the officer or
employee who was responsible for the violation.
Paragraph 624(k) provides that any credit reporting
institution or agent or employee thereof making a disclosure of
credit records pursuant to section 624 in good-faith reliance
upon a certificate by the FBI pursuant to the provisions of
section 624 shall not be liable to any person for such
disclosure under title 15, the constitution of any State, or
any law or regulation of any State or any political subdivision
of any State.
Paragraph 624(l) provides that the remedies and sanctions
set forth in section 624 shall be the only judicial remedies
and sanctions for violations of the section.
Paragraph 624(m) provides that in addition to any other
remedy contained in section 624, injunctive relief shall be
available to require that the procedures of the section are
compiled with and that in the event of any successful action,
costs together with reasonable attorney's fees, as determined
by the court, may be recovered.
Title VII--Technical correction
Section 701 amends section 102(c)(3)(C) of the National
Security Act by striking out the parenthetical reference
``including military pay'' and inserting ``active duty'' before
``commissioned.'' While we do not believe that this section
applies to retired military officers, it is important to remove
any ambiguity by making these changes. These technical
corrections clarify that a retired military officer appointed
as Director of Deputy Director of Central Intelligence can
receive compensation at the appropriate level of the Executive
Schedule under 5 U.S.C. Sec. 5313 (Director) or 5 U.S.C.
Sec. 5314 (Deputy Director). This clearly was the intent of the
drafters of this provision. The Senate Select Committee on
Intelligence added section 102(c)(3)(C) to the FY 1993
Intelligence Authorization Act to ensure that an active duty
military officer appointed as Director or Deputy Director only
receives his or her military pay, not to restrict the
compensation of a retired military officer appointed to one of
those positions.
Section 702 amends the CIA Information Act of 1984 to
reflect the recent reorganization of the CIA Office of Security
into the Office of Personnel Security and the Office of
Security Operations. The amendment will ensure that the Office
of Personnel Security, where the records intended to be subject
to the Act are kept, will continue to receive the benefit of
the Act's exception from search and review under the Freedom of
Information Act. It is the Committee's understanding that the
types of records that will be kept in the Office of Personnel
Security are identical to the types of records formerly kept in
the CIA Office of Security to which the Act has applied.
committee action
On May 24, 1995, the Select Committee on Intelligence
approved the bill by a unanimous vote, and ordered that it be
favorably reported.
estimate of costs
In accordance with paragraph 11(a) of rule XXVI of the
Standing Rules of the Senate, the Committee attempted to
estimate the costs which would be incurred in carrying out the
provisions of this bill in fiscal year 1996 and in each of the
five years thereafter if these amounts are appropriated. For
fiscal year 1996, the estimated costs incurred in carrying out
the provisions of this bill are set forth in the classified
annex to this bill. Estimates of the costs incurred in carrying
out this bill in the five fiscal years thereafter are not
available from the Executive branch and, therefore, the
Committee deems it impractical, pursuant to paragraph 11(a)(3)
of rule XXVI of the Standing Rules of the Senate, to include
such estimates in this report.
congressional budget office estimate
Pursuant to existing law, the Committee requested and
received the following cost estimate from the Congressional
Budget Office regarding this legislation:
U.S. Congress,
Congressional Budget Office,
Washington, DC, June 12, 1995.
Hon. Arlen Specter,
Chairman, Select Committee on Intelligence,
U.S. Senate, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for the Intelligence
Authorization Act for Fiscal Year 1996, as ordered reported by
the Senate Select Committee on Intelligence on May 24, 1995.
The bill would affect direct spending and thus would be
subject to pay-as-you-go procedures under section 252 of the
Balanced Budget and Emergency Deficit Control Act.
If you wish further details on this estimate, we will be
pleased to provide them.
Sincerely,
James L. Blum
(For June E. O'Neill, Director).
Enclosure.
1. Bill number: Unassigned.
2. Bill title: Intelligence Authorization Act for Fiscal
Year 1996.
3. Bill Status: As ordered reported by the Senate Select
Committee on Intelligence on May 24, 1995.
4. Bill purpose: The bill would authorize appropriations
for fiscal year 1996 for intelligence activities of the United
States government, the Community Management Staff of the
Director of Central Intelligence, and the Central Intelligence
Agency Retirement and Disability System
5. Estimate cost to the Federal Government of Titles I
(except sections 101-103), II, III (except section 301), IV, V,
and VI: CBO was unable to obtain the necessary information to
estimate the costs for Title I (except section 104) and section
301 of Title III of this bill because they are classified at a
level above clearances now held by CBO employees. The estimated
costs in the table below, therefore, reflect only the costs of
section 104 and Titles II, III (except section 301), IV, V, and
VI.
------------------------------------------------------------------------
1995 1996 1997 1998 1999 2000
------------------------------------------------------------------------
Direct spending:
Estimated
budget
authority.... 0 (\1\) (\1\) 2 3 1
Estimated
outlays...... 0 (\1\) (\1\) 2 3 1
=====================================================
Spending subject
to appropriations
action:
Spending under
current law:
Budget
authority
\2\..... 291 0 0 0 0 0
Estimated
outlays.. 291 38 22 9 0 0
=====================================================
Proposed changes:
Estimated
authorization
level \3\.... 0 312 (\1\) 5 6 1
Estimated
outlays...... 0 275 28 12 8 1
=====================================================
Spending under the
Authorization Act
for Fiscal Year
1996:
Estimated
authorization
level \2\ \3\ 291 312 (\1\) 5 6 1
Estimated
outlays...... 291 313 50 21 8 1
------------------------------------------------------------------------
\1\ Less than $500,000.
\2\ The 1995 figure is the amount already appropriated.
\3\ Because parts of this bill are highly classified, CBO is unable to
provide a full accounting of the bill's costs over the 1996-2000
period and a comparison with the 1995 level.
6. Basis of estimate: For purposes of this estimate, CBO
assumed that the Intelligence Authorization Act of Fiscal Year
1996 will be enacted by October 1, 1995, and that the full
amounts authorized will be appropriated for fiscal year 1996.
Outlays are estimated according to historical spending patterns
for intelligence programs.
Direct spending
CIA Separation Incentive. Section 401 would allow the
Central Intelligence Agency (CIA) to offer separation incentive
payments to employees from the end of fiscal year 1997 to the
end of fiscal year 1999. Additional retirement costs would
occur in the near term because employees who retire under this
program would receive their annuities earlier than they would
otherwise. The cost of these annuities would constitute direct
spending. CBO estimates no costs to occur in 1996 and 1997 as a
result of section 401. However, direct spending costs are
estimated to be $2 million in 1998, $3 million in 1999, and $1
million in 2000.
Based on projections from the CIA, CBO estimates that 550
employees would be offered an incentive payment in 1998 and 700
in 1999. The CIA expects that one quarter of those offered an
incentive payment would take the incentive and retire. The
estimate assumes that about 60 percent of the retirees would
have retired anyway, without the incentive. The estimate
assumes that the remaining 40 percent who accept the incentive
would retire one or two years earlier than they would have
otherwise.
Thrift Savings Plan (TSP) Forfeiture. Section 304 would
allow forfeiture of the U.S. government contribution to the TSP
under the Federal Employee Retirement System, along with
interest, if an employee is convicted of national security
offenses. According to the CIA, saving from this provision
would not exceed $35,000 annually.
Spousal Pension Benefits. Section 305 would allow
restoration of spousal pension benefits to those spouses who
cooperate in criminal investigations and prosecutions for
national security offenses. According to the CIA, costs from
this provision would not exceed $35,000 annually.
Authorizations of appropriations
Section 104 would authorize appropriations of $98.3 million
for 1996 for the Intelligence Community Management Account of
the Director of Central Intelligence (DCI). Similarly, section
201 specifies an authorization of appropriations for a
contribution to the Central Intelligence Agency Retirement and
Disability Fund of $213.9 million.
In addition to the added retirement costs, section 401
(discussed above under direct spending) would increase
discretionary spending for inventive costs. The cash incentives
would cost $4 million in 1998 and $5 million in 1999. CBO
assumes that the savings in salary and benefits from these
reductions would be incurred under current law as part of the
anticipated reduction in the CIA workforce. Thus, these savings
would not be a result of this bill and would not offset the
cost of incentive payments in this estimate.
Section 501 would extend comparable benefits and allowances
to civilian and military personnel assigned to defense
intelligence functions overseas. According to the Defense
Intelligence Agency, this provision would increase personnel
costs by approximately $200,000 annually.
Section 503 would authorize the Secretary of Defense to
establish an undergraduate training program for recruiting
individuals with skills that are critical to the intelligence
missions of the Military Departments. According to the Defense
Intelligence Agency, this provision could cost approximately
$600,000 annually by the year 2000 depending on how the
different branches of the armed services subscribe to the
program.
Section 601 would extend access to consumer credit records
to the Federal Bureau of Investigation provided that such
information is to be used for an authorized foreign
counterintelligence investigation. The costs to reimburse
reporting agencies for processing costs would be insignificant.
7. Pay-as-you-go considerations: The Balanced Budget and
Emergency Deficit Control Act of 1985 sets up pay-as-you-go
procedures for legislation affecting direct spending or
receipts through 1998. CBO estimates that the Intelligence
Authorization Act for Fiscal Year 1996 would have the following
pay-as-you-go impact:
------------------------------------------------------------------------
1995 1996 1997 1998
------------------------------------------------------------------------
Change in outlays................... 0 0 0 2
Change in receipts.................. NA NA NA NA
------------------------------------------------------------------------
8. Estimated cost to State and local governments: None.
9. Estimate comparison: None.
10. Previous CBO estimate: None.
11. Estimate prepared by: Wayne Boyington and Elizabeth
Chambers.
12. Estimate approved by: Robert R. Singhine, for Paul N.
Van de Water, Assistant Director for Budget Analysis.
evaluation of regulatory impact
In accordance with paragraph 11(b) of rule XXVI of the
Standing Rules of the Senate, the Committee finds no regulatory
impact will be incurred by implementing the provisions of this
legislation.
changes in existing law
In the opinion of the Committee, it is necessary to
dispense with the requirements of section 12 of rule XXVI of
the Standing Rules of the Senate in order to expedite the
business of the Senate.
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