Congressional Record: September 6, 2006 (Senate)
Page S9066-S9068                  


  Mr. ROCKEFELLER. Mr. President, I thank the distinguished Senator 
from Alaska. It is late, and I understand that. I rise to address 
something which is very important to me, and that is the Defense 
appropriations bill that may appear to many to be insignificant 
boilerplate language, when, in fact, is not that at all. Unfortunately, 
the provision has an enlarged significance in

[[Page S9067]]

this Congress as a result of the inexplicable and unpardonable failure 
of the Senate to do something that it has never done before, and that 
is to fail to pass intelligence authorizations for either fiscal year 
2006 or fiscal year 2007.
  Section 8086 of the Defense appropriations bill waives section 504 of 
the National Security Act of 1947 until the enactment of the 
Intelligence Authorization Act for fiscal year 2007. What does that 
mean? Section 504 provides, with limited exceptions, that no 
appropriated funds available may be obligated or expended for an 
intelligence activity unless those funds were specifically authorized 
by Congress; therefore, by the two Intelligence Committees.
  This waiver is a standard part of the Defense appropriations bill. 
Until this Congress, it has served the acceptable function of allowing 
intelligence communities to begin spending money if the authorization 
bill is not completed before the beginning of the fiscal year. Under 
this waiver, as soon as the intelligence authorizations for any given 
year are enacted, that authorization language would control.
  In this Congress, however, the boilerplate language has become the 
substitute for legislative authorization of intelligence activities 
because the majority leader, to be honest, has refused to bring the 
intelligence authorization bill to the floor for the past 2 years--for 
the past 2 years.
  The Senate's failure to pass this critical national security 
legislation is unprecedented. Last year was the first time since the 
establishment of the congressional Intelligence Committees that the 
Senate failed to pass an annual authorization bill. From 1978 through 
2004, the Senate had an unbroken, 27-year record of completing its work 
on this critical legislation. The intelligence authorization bill has 
been rightly considered, always, must-pass legislation. Regardless of 
who controlled the Senate, regardless of who controlled the White 
House, there was an understanding that the programs authorized by this 
bill were too important to not have the input of the Congress through 
the Intelligence Committees.
  Unfortunately, because of an anonymous objection by a Republican 
Senator, the majority leader decided to let this important national 
security legislation die on the vine last year, for the first time, and 
he appears intent on doing so this year again. The result of this 
decision by the majority leader will be diminished authority for 
intelligence agencies to do their jobs of protecting Americans. It also 
will result in less effective oversight, which was essentially the 9/11 
Commission's No. 1 call, and all of this at a time when the 
intelligence community is undergoing the biggest restructuring in its 
50-year history.
  The annual intelligence authorization is the primary mechanism which 
the Congress, through the Intelligence Committees, uses to provide 
guidance and support to America's intelligence agencies, the heart of 
our effort to protect America's national security.
  At a time when our security depends so heavily on good intelligence, 
when our national security has been endangered by not depending 
sufficiently on good intelligence--or maybe the intelligence wasn't 
good when it should have been--and we are in the midst of reforming and 
modernizing our intelligence community, the Senate's failure to act on 
this legislation is absolutely inexplicable to this Senator and to 
virtually all the Members of the Intelligence Committees.
  In reporting the resolution to establish the Intelligence Committee 
in May 1976, since the first chairman on our side was the Senator from 
Hawaii, Mr. Inouye, the Committee on Government Operations back then 
wrote the following:

       An essential part of the new committee's jurisdiction will 
     be authorization authority over the intelligence activities 
     of the Department of Defense, the Department of State, the 
     Federal Bureau of Investigation, and the Central Intelligence 
     Agency. Without this authority, the new committee would not 
     be assured the practical ability to monitor the activities of 
     these agencies.

  They wrote that back then--and that is:

        . . . to obtain full access to information which the 
     committees must have to exercise control over the budgets of 
     agencies in order to reduce waste and inefficiency, and to 
     impose changes in agency practices.

  That is what they said.
  The failure of the Senate to pass intelligence authorization for 2 
years threatens to erode the ability of the Intelligence Committee to 
carry out the mission assigned to it by the Senate. This failure has 
consequences both immediate and long term. Our intelligence agencies 
can continue executing the funding made available through the various 
appropriations bills but without any guidance as to what they should do 
from the Intelligence Committees.
  I do not understand this.
  The Appropriations Committee does an excellent job at providing 
resources for the intelligence agencies, what they need to operate on. 
But the roadmap for how the Congress expects those sources to be 
executed comes from the authorization bill--which seems to no longer 
exist. The sensitivity and importance of our Nation's intelligence 
programs makes congressional direction essential every single year. But 
the creation of an Office of the Director of National Intelligence in 
2004, and the ongoing development of that office, makes the guidance 
even more important now.
  The fiscal year 2006 authorization bill contains 17 separate 
provisions enhancing or clarifying the authority of the DNI. Those 
provisions included additional authority to promote information 
sharing, clarifying the DNI's role in managing human intelligence--all 
of these, easy to say and difficult to do--providing flexibility in the 
financing of national intelligence centers, how those centers were to 
be set up, and elevating the DNI Inspector General to a statutory 
  Those important provisions are now included in this fiscal year 2007 
bill, and we should act on them as soon as possible. I do not think we 
are going to, but we should.
  In the longer term, the Senate's inability to debate and act on this 
critical legislation will have a more lasting effect on congressional 
oversight. Both the 9/11 and the Robb-Silberman commission on weapons 
of mass destruction highlighted the importance of improving oversight 
as a necessary component of reforming our intelligence capabilities. 
  The 9/11 Commission wrote:

       Of all our recommendations, strengthening Congressional 
     oversight may be among the most difficult and most important.

  In December 2004, the Senate took steps to strengthen the Senate 
Intelligence Committee by eliminating member term limits. That had been 
a long time coming. People were limited to 8 years. They just began to 
get up to speed and then they were off. Now that has changed. It is at 
the discretion of the majority leader and the minority leader.
  We increased our staff and strengthened other procedures. But these 
improvements were in a sense a hollow victory. Since enactment of the 
reforms, the majority leader has emasculated the Intelligence Committee 
by denying it the central tool to carry out oversight, and that is the 
annual authorization bill which is called for under the law.
  The majority leader's unwillingness to consider these bills is even 
more puzzling because of the bipartisan effort that has gone into their 
development on both sides of this House. Both the fiscal 2006 and 2007 
bills passed the Intelligence Committee unanimously. Both were referred 
to the Armed Services Committee where they were again approved 
unanimously. Last year, the bill was also referred to the Homeland 
Security and Governmental Affairs Committee, which suggested changes 
that would have been included had we been discussing the bill along 
with suggestions from the administration in a managers' amendment.
  Last year's bill and this year's bill contain legislation focused on 
four important areas about which I am going to talk briefly. I have 
already mentioned the numerous provisions relating to the authority and 
the operation of the Office of the DNI, the Director of National 
Intelligence. The bill also contains additional provisions to foster 
and improve information sharing and information access. Easy words, 
hard to do.
  Section 310 establishes a pilot program giving the Intelligence 
Committee access to databases of other

[[Page S9068]]

nonintelligence agencies for the purpose of collecting intelligence on 
counterterrorism or weapons of mass destruction. While this bill sits 
on the calendar, that information is now outside the reach of the 
intelligence community.
  Many of my colleagues have decried the seemingly endless stream of 
leaks of classified information. I join them in denouncing the leaks of 
sensitive material. The authorization bill includes provisions 
strengthening the authority of the DNI and the Director of the CIA to 
protect intelligence sources and methods. It also includes a provision, 
authored by Senator Wyden and adopted by the committee unanimously, to 
increase the penalties for the unauthorized disclosure of a covert 
  Finally, the authorization bill contains numerous provisions intended 
to improve oversight of the intelligence community, both from within 
and from the Congress itself.
  Section 408 is interesting. Section 408 of the bill proposes the 
establishment of a statutory inspector general for the intelligence 
community. I have said that. The Intelligence Reform Act of 2004 took a 
first step toward that end by authorizing the Director of National 
Intelligence to appoint an inspector general within the Office of the 
Director. The DNI has done that, and I applaud him for doing so. But 
the bill will strengthen that position and make it more accountable to 
the Congress.
  Section 434 of the bill strengthens accountability further and 
oversight of the technical agencies by providing that the heads of the 
National Security Agency, the National Reconnaissance Office, the 
National Geospatial-Intelligence Agency are to be appointed by the 
President with the Senate's advice and consent.
  This is in the authorization bill, and if we were to pass it, this 
would become effective. I think it actually comes as a surprise to many 
of my colleagues that the head of an agency with as central a role in 
the intelligence community as the National Security Agency is not 
appointed with Senate confirmation. In fact, heads of the National 
Security Agency have customarily only gone through confirmation in 
connection with their military rank but not for their appointment to 
the position of the Director of NSA. That is not considered.
  Section 107 of the bill, sponsored in committee by Senators Levin and 
Hagel, seeks to improve the timely flow of information to the 
congressional Intelligence Committees. Similar language was included in 
the intelligence reform legislation that passed in the Senate in 2004 
but did not survive the conference. I applaud Senators Levin and Hagel 
for their efforts with respect to this issue.
  There are other provisions requiring specific information, including 
a report on the implementation of the Detainee Treatment Act and a 
separate report on the possibility of existence of clandestine 
detention facilities. I am at a loss to understand what the objection 
to this legislation is. Maybe somebody does not like the enhancement of 
oversight. That is our job. That is why the committees were formed. 
Maybe somebody doesn't want the DNI to have more authority or maybe 
somebody thinks the Congress should not be getting timely access to 
information about intelligence programs that are so important. But let 
me remind all my colleagues that the authorization bill passed the 
Intelligence Committee unanimously. If somebody has a problem with a 
provision, bring up the bill, offer an amendment, debate, and vote. 
That is the way the Senate works.

                           Amendment No. 4906

  Because of the importance of getting the authorization bill enacted 
and because I and all the members of the Senate Intelligence Committee 
have been totally unable to make any headway on this at all now for 2 
years, and because I have concluded that it will once again be ignored 
by the majority leader, I send an amendment to the desk to strike 
section 8086 of the pending legislation, the fiscal year 2007 
Department of Defense appropriations bill.
  The PRESIDING OFFICER. The clerk will report the amendment.
  The assistant legislative clerk read as follows:

       The Senator from West Virginia [Mr. Rockefeller] proposes a 
     amendment numbered 4906.

  The amendment follows:

 (Purpose: To strike the section specifically authorizing intelligence 
                  and intelligence-related activities)

       On page 206, strike lines 10 through 16.

  Mr. ROCKEFELLER. Mr. President, striking section 8086 would mean the 
following: that none of the funds in this bill could be spent for 
intelligence activities without an authorization bill. I do not know 
how else to do it. I am reluctant to take this step because I do not 
want our intelligence agencies to be caught without funding. But I see 
no other way to force the Senate to bring into the consciousness, the 
cerebral cortexes of the various Senators, that it is important to take 
up and pass authorization bills.
  This legislation is too important to be allowed to languish in 
legislative limbo. I am at a loss to understand why the Senate cannot 
complete action. It would be in no one's interest to not complete this, 
not the Senate, not the Congress, not the intelligence community, nor 
would it be in the national security interest of the United States.
  Democrats are more than willing to quickly debate and pass much 
needed national security legislation. Democrats know that it is 
essential that we permit the men and women of the intelligence agencies 
to continue their critical work on the front lines of the war in Iraq 
and the war on terror.
  In the meantime, to the men and women of the intelligence agencies, I 
say that we stand with you. We are proud of your bravery and your 
patriotism, and we thank you for your sacrifice, working in silence, 
and in the shadows, against the threat that America faces.
  (At the request of Mr. Rockefeller, the following statement was 
ordered to be printed in the Record.)


Congressional Record: September 6, 2006 (Senate)
Page S9068-S9069                  


 Mrs. FEINSTEIN. Mr. President, I join Vice Chairman 
Rockefeller in calling for the Senate to take up and pass the 
Intelligence Authorization Act for Fiscal Year 2007. As has been said 
already, this legislation is the primary way in which the Congress 
directs the Nation's 16 intelligence agencies.
  In writing this legislation, the Committee worked closely with the 
Director of National Intelligence, or DNI, to identify new authorities 
needed to protect our national security. The bill authorizes a pilot 
program to allow intelligence agencies to better share information that 
could help uncover and thwart a terrorist; empowers the DNI to build 
information-sharing systems across the Federal Government; and creates 
a strong inspector general for the intelligence community.
  The bill also requires the intelligence community to explain how it 
is complying with the Detainee Treatment Act and provide Congress with 
information on any ``alleged clandestine detention facilities'' that it 
may be operating and continues the process of intelligence reform begun 
in 2004.
  It is not surprising that the creation of the DNI and major 
organizational changes across the Government's national security 
apparatus left some things undone. This Intelligence authorization bill 
makes a number of small but useful changes to allow the DNI and the 
Nation's 16 intelligence agencies to operate on a day-to-day basis more 
  These are a few of the important provisions in this legislation. But 
here I would like to focus on language in the bill that was adopted on 
a bipartisan basis at committee. The provisions, sections 304 and 307 
of the bill, ensure that the congressional Intelligence Committees are 
fully informed of all intelligence activities.
  The National Security Act of 1947 requires the President to ``ensure 
that the congressional intelligence committees are kept fully and 
currently informed of the intelligence activities of the United States. 
. .''.
  Even more than other committees, the Intelligence Committee relies on 
the executive branch to provide it with information. Without full and 
timely notification of intelligence programs, problems, and plans, the 
committee cannot judge whether agencies have adhered to the law, nor 
can we judge whether changes in authorities or resources are needed to 
better protect national security.
  It was, in fact, Congress's lack of regular oversight that led to the 

[[Page S9069]]

of the Senate Intelligence Committee in 1976. Following the Church 
Committee's report on Executive abuses, the Senate established the 
Committee to ``provide vigilant legislative oversight over the 
intelligence activities of the United States to assure that such 
activities are in conformity with the Constitution and laws of the 
United States.''
  Thirty years after the Senate Intelligence Committee was created, 
however, it is not living up to its charge. Members of the committee 
are not provided with sufficient information on intelligence programs 
and activities to legislate or oversee to intelligence community. 
Provisions in the stalled legislation--the Intelligence authorization 
bill--would fix this problem.
  A good example of how the system fails to work is the so-called 
Terrorist Surveillance Program, which was publicly revealed last 
December but which had not previously been briefed to the committees.

  According to the White House, this National Security Agency program 
was too sensitive to be briefed to the 15 Senators on the committee--
the 15 Senators hand-selected by the majority and minority leaders for 
this assignment.
  Instead, the President and Vice President decided to inform only 8 of 
the 535 Members of Congress: the party leadership in both houses and 
the leadership of the two intelligence committees.
  The National Security Act does provide for limited briefings to these 
eight Members of Congress but only for especially sensitive covert 
actions. The NSA program is not a covert action.
  The administration also points to statute saying that it must take 
``due regard for the protection from unauthorized disclosure of 
classified information relating to sensitive intelligence sources and 
methods or other exceptionally sensitive matters. . .''
  The 1980 Senate report accompanying this ``due regard'' provision 
explained this provision more directly--and makes clear that it does 
not allow the administration to restrict information from the committee 
indefinitely as was done with the Terrorist Surveillance Program.
  The report recognized ``that in extremely rare circumstances a need 
to preserve essential secrecy may result in a decision not to impart 
certain sensitive aspects of operations or collection programs to the 
oversight committees in order to protect extremely sensitive 
intelligence sources and methods.''
  The ``due regard'' language that the administration cites was 
intended, at most, to limit briefings on the most sensitive aspects of 
operations, in extremely rare circumstances. It was also expected that 
withholding this sensitive information would be a temporary measure. 
This language was not intended to conceal the existence of entire 
programs from all committee members.

  So in effect, the White House has broadly interpreted the National 
Security Act to void meeting its responsibility to inform Congress.
  This Intelligence authorization bill's changes to the National 
Security Act close the loopholes but, in fact, are far more generous to 
the executive branch than many would like. The bill acknowledges that 
there are times when not all Members have to be ``fully and currently'' 
briefed on all intelligence matters. However, in those cases, it 
requires that all committee members receive a summary of the 
intelligence collection or covert action in question.
  This arrangement would allow the intelligence agencies to protect the 
most sensitive details of sources and methods, but crucially, it would 
allow the full committee to assess the legality, costs and benefits, 
and advisability of an intelligence operation.
  The authorization bill also changes a definition in the National 
Security Act to make clear that the requirement to keep the committees 
``fully and currently informed'' means that all Members will be kept 
informed. Congress has allowed the intelligence community to brief only 
the chairman and vice chairman on too many programs for too long.
  I do not need to remind my colleagues that full committees, not a 
single Democrat and Republican, vote to authorize programs and funding. 
All Members must be informed if they are to perform their 
Constitutional duties.
  The pending authorization bill would make one additional change to 
what it means for an intelligence activity to be authorized by 
  Stemming from the wiretapping abuses in the 1970s and because of the 
special challenges to conducting oversight of classified programs, the 
National Security Act prohibits the use of appropriated funds for any 
intelligence activities unless they are authorized by Congress. The 
pending bill would specify that an activity can only be ``authorized'' 
if the members of the authorizing committees have been fully briefed on 
it--or given a summary in the especially sensitive cases I described