110th Congress Report
SENATE
1st Session 110-2
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INTELLIGENCE AUTHORIZATION ACT FOR FISCAL YEAR 2007
_______
January 24, 2007.--Ordered to be printed
_______
Mr. Rockefeller, from the Select Committee on Intelligence, submitted
the following
R E P O R T
together with
ADDITIONAL AND SUPPLEMENTAL VIEWS
[To accompany S. 372]
The Select Committee on Intelligence, having considered an
original bill (S. 372) to authorize appropriations for fiscal
year 2007 for intelligence and intelligence-related activities
of the United States Government, the Intelligence Community
Management Account, and the Central Intelligence Agency
Retirement and Disability System, and for other purposes,
reports favorably thereon and recommends that the bill do pass.
EXCEPT FOR MINOR CHANGES, THIS BILL IS IDENTICAL TO THE BILL THAT THE
COMMITTEE REPORTED IN THE 109TH CONGRESS, 2D SESSION
On April 26, 2006, the House passed H.R. 5020, its proposed
Intelligence Authorization Act for Fiscal Year 2007, which was
then placed on the Senate Calendar. On May 25, 2006, the
Committee favorably reported S. 3237, its proposed Intelligence
Authorization Act for Fiscal Year 2007. After a sequential
referral, S. 3237 was reported by the Committee on Armed
Services (without any recommended changes) on June 21, 2006,
thereby joining the House bill on the Senate Calendar. However,
just as had occurred with the Intelligence Authorization Act
for Fiscal Year 2006, the Senate did not proceed to
consideration of either the House or Committee bill during the
109th Congress.
The bill that the Committee is now reporting is identical
to S. 3237 except for minor changes in eight sections: (1) a
change in Sections 102, 103, and 106 so that references are to
the 110th Congress rather than the 109th Congress; (2) a change
in the date in Section 313 for submission of a classified
report by the Director of National Intelligence; (3) the
substitution in the heading of Section 314 of the word ``any''
for the word ``alleged'' to conform the heading to the text of
the section; (4) the deletion of inadvertently repeated words
in Section 401; and (5) technical corrections in Sections 408
and 432.
CLASSIFIED SUPPLEMENT
The classified nature of United States intelligence
activities precludes disclosure by the Committee of the details
of its budgetary recommendations. As in the past, the Committee
has prepared a Classified Schedule of Authorizations. The
Committee has also prepared a Classified Annex that explains
the Committee's actions in the Schedule of Authorizations.
Sections 102 and 103 of the bill provide for incorporation of
the Schedule and Annex and for the obligation of the Executive
Branch to adhere to their requirements.
The classified supplement, which consists of the Schedule
and the Annex, is available for review by any Member of the
Senate subject to the provisions of Senate Resolution 400 of
the 94th Congress. It is also being provided to the House and
Senate Committees on Appropriations, to the House Permanent
Select Committee on Intelligence, and to the President. The
President shall provide for appropriate distribution within the
Executive Branch.
The classified supplement that accompanies the bill and
this report is identical to the classified supplement that
accompanied S. 3237 and S. Rep. No. 109-259 of the 109th
Congress. In addition to reconciling differences between the
House and Senate, the conferees on the Intelligence
Authorization Act for Fiscal Year 2007 will need to account for
the fact that the fiscal year has begun and that funds have
been appropriated and that other budgetary actions have been
taken for the fiscal year in advance of the conference report.
Also, the Classified Annex has dates for actions to be taken by
the Intelligence Community that may need to be adjusted in
light of present circumstances in the course of a conference
with the House. The Committee requests that the Director of
National Intelligence, or the heads of elements of the
Intelligence Community as appropriate, promptly inform the
Committee about the status of responses to directions in the
Classified Annex, including the projected time for responding
to matters that remain pending.
AUTHORIZATION RESPONSIBILITIES OF THE COMMITTEE AND THE SENATE
The Committee was established in 1976. Section 12 of S.
Res. 400 of 1976, the basic charter of the Committee, provides
that apart from continuing resolutions no funds shall be
appropriated for intelligence activities unless previously
authorized by a bill that has passed the Senate. The section-
by-section analysis placed in the record by Senator Ribicoff,
Chairman of the Committee on Government Operations and the
floor manager of the resolution, explained that ``Periodic
authorizations of the intelligence agencies will constitute a
very important aspect of the committee's oversight over the
agencies. It should assure a regular review of each agency's
intelligence activities, its efficiency, and its priorities.''
122 Cong. Rec. 13684 (1976). In a colloquy with Senator Nunn,
Senator Ribicoff stressed that the annual authorization
requirement ``constitutes a commitment, on behalf of the
Senate, that funds will not be appropriated for these agencies
before such an authorization.'' Id. at 14649.
Senator Church, whose investigation led to creation of the
Committee, told the Senate that annual authorization authority
would be the committee's ``main legislative tool'' in carrying
out oversight:
The power of the purse is the most effective means
that the Legislature can have to assure that the will
of Congress is observed. There has never been an annual
authorization of the intelligence community budget. The
proposed oversight committee, for the first time, under
appropriate security safeguards, would be able to
consider all budgetary requests of the national
intelligence community on an annual basis.
Id. at 13892.
The Committee's counterpart, the House Permanent Select
Committee on Intelligence, was established the following year.
In 1978, the two Intelligence Committees reported bills that
led to passage of the Intelligence Authorization Act for Fiscal
Year 1979, beginning a 27-year sequence of annual authorization
acts that was unbroken until this past Congress. Even when a
presidential veto had initially prevented passage of an
authorization act, as occurred in 1990 and 2000 for the Fiscal
Year 1991 and 2001 bills, a second effort by Congress resulted
in enactment of authorizations for those years.
Fiscal Year 2006 was the first year, since Fiscal Year
1978, for which Congress did not enact an intelligence
authorization. The Committee's objective in reporting a Fiscal
Year 2007 bill a second time is to ensure that the Committee,
and then the Senate and Congress, fulfill their
responsibilities for Fiscal Year 2007. As the 2007 bill
proceeds to enactment, the Committee will be working on the
2008 authorization so that not only does the current fiscal
year end with an enacted intelligence authorization but that
the coming fiscal year begins with one.
SECTION-BY-SECTION ANALYSIS AND EXPLANATION
As described above, the bill is identical to S. 3237 of the
109th Congress other than for several minor changes that are
also described above. Accordingly, the section-by-section
analysis in the report which accompanied that bill, S. Rep. No.
109-259, is set forth here (with minimal changes that
correspond to the minor changes in the bill and a few other
nonsubstantive edits) as the Committee's analysis and
explanation of the bill that the Committee is now reporting.
TITLE I--INTELLIGENCE ACTIVITIES
Section 101. Authorization of appropriations
Section 101 lists the United States government departments,
agencies, and other elements for which the Act authorizes
appropriations for intelligence and intelligence-related
activities for fiscal year 2007.
Section 102. Classified schedule of authorizations
Section 102 makes clear that the details of the amounts
authorized to be appropriated for intelligence and
intelligence-related activities and the applicable personnel
ceilings covered under this title for fiscal year 2007 are
contained in a classified Schedule of Authorizations. The
Schedule of Authorizations shall be made available to the
Committees on Appropriations of the Senate and House of
Representatives and to the President.
Section 103. Incorporation of classified annex
Section 103 incorporates into law the Classified Annex to
this Report. Unless otherwise specifically stated, the amounts
authorized in the Classified Annex are not in addition to
amounts authorized to be appropriated by other provisions of
the Act or by the classified Schedule of Authorizations.
The Committee has taken the step of incorporating the
Classified Annex because the Executive Branch, in the past, has
refused to treat with equal weight the language in the
classified annexes and the text of recent authorization acts
and their accompanying classified schedules of authorizations.
This Committee, and Congress, will not permit the Executive
Branch to ignore the clear instructions of Congress merely
because the directives are contained, by necessity of
classification, in an annex accompanying the report associated
with intelligence authorizing legislation. The Committee
directs the Executive Branch to comply fully with any directed
transfers, temporary limitations on use (fences), or other
limitations or instructions contained in the Classified Annex
to this Report.
Section 104. Personnel ceiling adjustments
Section 104 authorizes the Director of National
Intelligence (DNI), with the approval of the Director of the
Office of Management and Budget (OMB), in fiscal year 2007 to
authorize employment of civilian personnel in excess of the
personnel ceilings applicable to the elements of the
Intelligence Community under Section 102 by an amount not to
exceed 2 percent of the total of the ceilings applicable under
Section 102. The DNI may exercise this authority only if
necessary to the performance of important intelligence
functions. Any exercise of this authority must be reported to
the intelligence committees of the Congress.
Section 105. Intelligence Community Management Account
Section 105 authorizes appropriations for the Intelligence
Community Management Account (CMA) of the DNI and sets the
personnel end-strength for the elements within the CMA for
fiscal year 2007.
Subsection (a) authorizes appropriations of $648,952,000
for fiscal year 2007 for the activities of the CMA of the DNI.
Subsection (a) also authorizes funds identified for advanced
research and development to remain available for two years.
Subsection (b) authorizes 1,575 full-time personnel for
elements within the CMA for fiscal year 2007 and provides that
such personnel may be permanent employees of a CMA element or
detailed from other elements of the United States government.
Subsection (c) authorizes additional appropriations and
personnel for the CMA as specified in the classified Schedule
of Authorizations and permits the additional funding for
research and development to remain available through September
30, 2008.
Subsection (d) requires that, except as provided in Section
113 of the National Security Act of 1947, personnel from
another element of the United States government shall be
detailed to an element of the CMA on a reimbursable basis,
except that for temporary functions such personnel may be
detailed on a non-reimbursable basis for periods of less than
one year.
Section 106. Incorporation of reporting requirements
Section 106 incorporates into the Act by reference each
requirement to submit a report contained in the Joint
Explanatory Statement to accompany the Conference Report or in
the Classified Annex accompanying the Conference Report.
Section 107. Availability to public of certain intelligence funding
information
Section 107 would require the President to disclose the
aggregate amount of funds requested for the National
Intelligence Program in the annual budget submission for the
program. The section would also require Congress to disclose
the aggregate amount of funds authorized to be appropriated,
and the aggregate amount appropriated, for the National
Intelligence Program. It also directs the DNI to conduct a
study to assess the advisability of publicly disclosing the
aggregate amount of funding requested, authorized, and
appropriated for each of the 16 elements of the Intelligence
Community. The report must be submitted to Congress within 180
days of enactment of this Act.
Section 108. Response of intelligence community to requests from
Congress for intelligence documents and information
Section 108 provides for certain procedural requirements
related to the ability of Congress to gain access, through the
intelligence committees and other committees of jurisdiction,
to intelligence reports, assessments, estimates, legal
opinions, and other intelligence information. The provision
states that elements of the Intelligence Community must provide
to the intelligence committees any intelligence documents or
information requested by the Chairman or Vice Chairman (or
Ranking Minority Member) of such committees. The statutory
requirement applies only to existing intelligence documents and
information and would not apply to requests to generate new
intelligence assessments, reports, estimates, legal opinions,
or other information.
TITLE II--CENTRAL INTELLIGENCE AGENCY RETIREMENT AND DISABILITY SYSTEM
Section 201. Authorization of appropriations
Section 201 authorizes appropriations in the amount of
$256,400,000 for fiscal year 2007 for the Central Intelligence
Agency Retirement and Disability Fund.
TITLE III--INTELLIGENCE AND GENERAL INTELLIGENCE COMMUNITY MATTERS
Section 301. Increase in employee compensation and benefits authorized
by law
Section 301 provides that funds authorized to be
appropriated by this Act for salary, pay, retirement, and other
benefits for Federal employees may be increased by such
additional or supplemental amounts as may be necessary for
increases in such compensation or benefits authorized by law.
Section 302. Restriction on conduct of intelligence activities
Section 302 provides that the authorization of
appropriations by the Act shall not be deemed to constitute
authority for the conduct of any intelligence activity that is
not otherwise authorized by the Constitution or laws of the
United States.
Section 303. Clarification of definition of intelligence community
under the National Security Act of 1947
Section 303 amends Section 3(4)(L) of the National Security
Act of 1947 (50 U.S.C. 401a(4)(L)) to permit the designation as
``elements of the intelligence community'' of other elements of
departments and agencies of the United States government not
listed in Section 3(4).
Section 304. Improvement of notification of Congress regarding
intelligence activities of the United States Government
Section 304 amends the requirements for notifications to
Congress under Sections 502 and 503 of the National Security
Act of 1947 (50 U.S.C. 413a & 413b). First, Section 304 amends
the definition of ``congressional intelligence committees'' in
Section 3(7) of the National Security Act of 1947 (50 U.S.C.
401a(7)), specifically including ``each member'' of the Select
Committee on Intelligence of the Senate and the Permanent
Select Committee on Intelligence of the House of
Representatives within such definition. Second, Section 304
requires that, in the event that the DNI or the head of an
Intelligence Community element does not provide to all Members
of the ``congressional intelligence committees'' the
notification required by Section 502 (relating to intelligence
activities other than covert actions) or Section 503 (relating
to covert actions) of the National Security Act of 1947, that
all Members will be provided with a notification of this fact
and will be provided with a summary of the intelligence
activity or covert action in a manner sufficient to permit such
Members to assess the legality, benefits, costs, and
advisability of the intelligence activity or covert action.
Third, Section 304 extends requirements in Section 502 of the
National Security Act of 1947 on the form and contents of
reports to the ``congressional intelligence committees'' on
intelligence activities other than covert actions to the
requirements for notifications to Congress under Section 503 of
that Act (relating to covert actions). Fourth, the section
requires that any change to a covert action finding under
Section 503 of that Act must be reported to the committees,
rather than the existing requirement to report any
``significant'' change.
Section 305. Delegation of authority for travel on common carriers for
intelligence collection personnel
Section 116 of the National Security Act of 1947 (50 U.S.C.
404k) allows the DNI to authorize travel on any common carrier
when it is consistent with Intelligence Community mission
requirements or, more specifically, is required for cover
purposes, operational needs, or other exceptional
circumstances. As presently written, the DNI may only delegate
this authority to the Principal Deputy DNI (PDDNI) or, with
respect to Central Intelligence Agency (CIA) employees, to the
Director of the CIA.
Section 305 of this bill provides that the DNI may delegate
the authority in Section 116 of the National Security Act of
1947 to the head of any element of the Intelligence Community.
This expansion is consistent with the view of the Committee
that the DNI should be able to delegate authority throughout
the Intelligence Community when such delegation serves the
overall interests of the Community.
Section 305 also provides that the head of an Intelligence
Community element to whom travel authority has been delegated
is also empowered to delegate the authority to senior officials
of the element as specified in guidelines issued by the DNI.
This allows for administrative flexibility, consistent with the
guidance of the DNI, for the entire Community. To facilitate
Congressional oversight, the DNI shall submit the guidelines to
the intelligence committees of the Congress.
Section 306. Modification of availability of funds for different
intelligence activities
Section 306 conforms the text of Section 504(a)(3)(B) of
the National Security Act of 1947 (50 U.S.C. 414(a)(3)(B)
(governing the funding of intelligence activities)) with the
text of Section 102A(d)(5)(A)(ii) of that Act (50 U.S.C. 403-
1(d)(5)(A)(ii)), as amended by Section 1011(a) of the
Intelligence Reform and Terrorism Prevention Act of 2004 (Pub.
L. No. 108-458 (Dec. 17, 2004)) (governing the transfer and
reprogramming by the DNI of certain intelligence funding). In
particular, this conforming amendment replaces the ``unforeseen
requirements'' standard in Section 504(a)(3)(B) with a clearer
standard to govern reprogrammings and transfers of funds
authorized for a different intelligence or intelligence-related
activity. Under the new standard, a reprogramming or transfer
would be authorized if, in addition to the other requirements
of Section 504(a)(3), the new use of funds would ``support an
emergent need, improve program effectiveness, or increase
efficiency.'' This modification brings the standard for
reprogrammings or transfers of intelligence funding into
conformity with the standards applicable to reprogrammings and
transfers under Section 102A of the National Security Act of
1947. The modification preserves Congressional oversight of
proposed reprogrammings and transfers while enhancing the
Intelligence Community's ability to carry out missions and
functions vital to national security.
Section 307. Additional limitation on availability of funds for
intelligence and intelligence-related activities
Section 307 specifies that appropriated funds may be
obligated or expended for an intelligence or intelligence-
related activity only if the ``congressional intelligence
committees'' have been ``fully and currently informed'' of that
activity, or if all Members have been provided a summary of the
activity, consistent with the requirements of Sections 502(b)
and 503(c)(5) of the National Security Act of 1947 (50 U.S.C.
413a(b) & 413b(c)(5)), as amended by Section 304 of this Act.
Section 308. Increase in penalties for disclosure of undercover
intelligence officers and agents
Section 308 amends Section 601 of the National Security Act
(50 U.S.C. 421) to increase the criminal penalties for
individuals with authorized access to classified information
who intentionally disclose any information identifying a covert
agent, if those individuals know that the United States is
taking affirmative measures to conceal such covert agent's
intelligence relationship to the United States. Currently, the
maximum sentence for disclosure by someone who has had
``authorized access to classified information that identifies a
covert agent'' is 10 years. Subsection (a) increases that
maximum sentence to 15 years. Currently, the maximum sentence
for disclosure by someone who ``as a result of having
authorized access to classified information, learns of the
identity of a covert agent'' is 5 years. Subsection (b)
increases that maximum sentence to 10 years.
Section 309. Retention and use of amounts paid as debts to elements of
the intelligence community
Section 309 adds a new Section 1103 to the National
Security Act of 1947, authorizing Intelligence Community
elements to accept, retain, and--for certain purposes--use
amounts received from private parties as repayment of debts
owed to such element.
Each year some property purchased with appropriated funds
is damaged beyond use or is lost through the negligence of a
private party or an employee of the Intelligence Community. The
damaged or lost property may have been used to support wartime
activities or other national intelligence missions and, thus,
waiting for additional funds to be provided through the next
annual appropriation cycle inhibits the Intelligence
Community's ability to quickly and efficiently support the war
fighter and other national intelligence missions.
Section 309 addresses this shortcoming by authorizing
elements of the Intelligence Community to accept and retain
reimbursement, outside of the annual appropriations cycle, from
a private party, including a Federal employee, who has been
found to have negligently lost or damaged property. As a
result, elements of the Intelligence Community will be able to
expeditiously repair or replace lost or damaged property
without waiting for the next appropriation cycle. Similarly,
this new section also authorizes elements of the Intelligence
Community to retain funds paid by Intelligence Community
employees or former employees as repayment of a default on the
terms and conditions of scholarship, fellowship, or other
educational assistance provided by the Community to the
employee. The section authorizes crediting payments only to the
current appropriation account related to the debt and limits
the subsequent use of the funds.
Section 310. Pilot program on disclosure of records under the Privacy
Act relating to certain intelligence activities
As a result of reporting requirements in the Intelligence
Authorization Act for Fiscal Year 2004 (Pub. L. No. 108-177
(Dec. 13, 2003)) intended to improve information access, the
Intelligence Community, Department of Defense (DoD), Department
of Homeland Security, and Federal law enforcement agencies
formed the Information Sharing Working Group (ISWG) to, inter
alia, identify impediments to information access in existing
laws and in Intelligence Community and DoD policies. The ISWG
issued its report in December 2004.
In the report, the ISWG noted that certain provisions of
the Privacy Act could prevent the sharing of intelligence
information within the Executive Branch. Generally, the Privacy
Act (5 U.S.C. 552a) precludes the dissemination of information
regarding U.S. persons stored within a system of records
maintained by the United States government without the consent
of that individual. There are, however, twelve exceptions to
this general rule. For example, one exception permits the
sharing of information to support a civil or criminal law
enforcement activity under certain prescribed circumstances.
There is no exception permitting Intelligence Community
elements and other United States government agencies to share
foreign intelligence or counterintelligence information
(including information concerning international terrorism or
proliferation of weapons of mass destruction) between or with
elements of the Intelligence Community.
To address this shortcoming, Section 310 creates a pilot
program to study a narrow intelligence exception to the Privacy
Act. Specifically, the provision allows transfers under three
circumstances. First, the provision permits elements of the
Intelligence Community to share with other elements of the
Intelligence Community information covered by the Privacy Act
pertaining to an identifiable individual when that information
is relevant to a lawful and authorized foreign intelligence or
counterintelligence activity. To share such foreign
intelligence or counterintelligence information under this
provision pertaining to other than an identifiable individual
would require the authorization of the DNI or his designee.
Second, the provision permits the head of an element of the
Intelligence Community to request in writing from another
United States government agency Privacy Act records relevant to
a lawful and authorized activity of that element to protect
against international terrorism or the proliferation of weapons
of mass destruction. Third, the provision authorizes heads of
non-Intelligence Community agencies to share Privacy Act
records with an element of the Intelligence Community if the
record constitutes ``terrorism information'' (as defined in
Section 1016(a)(4) of the Intelligence Reform and Terrorism
Prevention Act of 2004 (Pub. L. No. 108-458 (Dec. 17, 2004)) or
information concerning the proliferation of weapons of mass
destruction, if the receiving element of the Intelligence
Community is lawfully authorized to collect or analyze the
information to protect against international terrorism or
proliferation. When necessary to determine whether a record
held by a non-Intelligence Community agency constitutes
terrorism information or information concerning the
proliferation of weapons of mass destruction, the head of such
agency may consult the DNI or the Attorney General. Section 310
also extends to the pilot program an exemption from certain
records access and disclosure accounting requirements. In order
to protect intelligence sources and methods from unauthorized
disclosure, this exemption is similar to the exemption extended
to the DNI under Section 416 of this Act.
Section 310 will not be effective until the DNI and the
Attorney General issue guidelines governing the implementation
and exercise of the authorities granted by the section. The
guidelines will ensure that Section 310 is implemented in a
manner designed to protect the constitutional rights of U.S.
persons and consistent with existing law, regulations, and
Executive orders governing the conduct of intelligence
activities.
It is important to note that Section 310 facilitates the
sharing only of intelligence information already lawfully
collected and maintained within United States government record
systems and relevant to a lawful and authorized foreign
intelligence or counterintelligence activity (with a particular
focus on sharing by non-Intelligence Community elements of
information concerning international terrorism and the
proliferation of weapons of mass destruction). The provision
expressly states that the new authority to share already
collected information does not permit the collection or
retention of foreign intelligence or counterintelligence
information not otherwise authorized by law.
To ensure that the exception to the Privacy Act permits
necessary sharing of critical foreign intelligence and
counterintelligence information while providing appropriate
protections for the privacy and civil liberties of U.S.
persons, Section 310 establishes a three-year pilot program.
The exception to the Privacy Act will expire three years after
the DNI and the Attorney General issue the guidelines discussed
above, unless renewed. During the course of the program, the
DNI and the Attorney General, in consultation with the Privacy
and Civil Liberties Oversight Board, are required to submit to
the intelligence committees annual reports on the status and
implementation of the pilot program. Additionally, six months
prior to the expiration of the program, the DNI and the
Attorney General, in coordination with the Privacy and Civil
Liberties Oversight Board, will submit a final report to the
intelligence committees, including any recommendations
regarding continued authorization of the exception. Similarly,
the Privacy and Civil Liberties Oversight Board will submit to
the intelligence committees a separate report providing the
Board's advice and counsel on the development and
implementation of the authorities provided under this Section.
Section 310 includes modifications proposed by the Armed
Services Committee, the Homeland Security and Governmental
Affairs Committee, and individual Members of the Senate during
consideration of the Intelligence Authorization Act for Fiscal
Year 2006. Both the Office of the DNI and the Department of
Justice (DoJ) have expressed their support for this provision.
Specifically, in a letter to the Committee dated December 1,
2005, referring to a provision similar to Section 310 in the
Committee-passed Intelligence Authorization Act for Fiscal Year
2006, the DNI wrote, the ``Administration strongly supports
this provision because it would facilitate the type of
information sharing mandated by the [Intelligence Reform and
Terrorism Prevention Act of 2004], consistent with the need to
protect privacy and civil liberties.'' Similarly, in a separate
letter to the Committee dated November 28, 2005, the Assistant
Attorney General for Legislative Affairs wrote, ``We support
section 307 [of the Committee-passed Intelligence Authorization
Act for Fiscal Year 2006]. . . . We believe that this provision
would help in resolving some of the concerns that some agencies
have expressed about sharing information with the FBI for
counterterrorism purposes.'' In fact, the DNI included a
Privacy Act exception similar to Section 310 in the DNI's
Fiscal Year 2007 request for legislative authorities.
Section 311. Extension to intelligence community of authority to delete
information about receipt and disposition of foreign gifts and
decorations
Current law requires that certain Federal ``employees''--a
term that generally applies to all officials and personnel of
the Intelligence Community and certain contractors, spouses,
dependents, and others--file reports with their ``employing''
agency regarding the receipt of gifts or ``decorations'' from
foreign governments. See 5 U.S.C. 7342. Following compilation
of these reports, the ``employing'' agency is required to
annually file with the Secretary of State detailed information
about the receipt of foreign gifts and decorations reported by
its employees, including the source of the gift. See 5 U.S.C.
7342(f). The Secretary of State is then required to publish a
comprehensive list of the agency reports in the Federal
Register. See id. With respect to the activities of the
Intelligence Community, the public disclosure of such gifts or
decorations in the Federal Register has the potential to
compromise intelligence sources (e.g., the confirmation of an
intelligence relationship with a foreign government) and could
undermine national security. Recognizing this potential
concern, the Director of Central Intelligence (DCI) was granted
a limited exemption from reporting certain specified
information about such foreign gifts or decorations where the
publication of the information could adversely affect United
States intelligence sources. See Pub. L. No. 95-105, Sec.
515(a) (Aug. 17, 1977). Section 1079 of the Intelligence Reform
and Terrorism Prevention Act of 2004, Pub. L. No. 108-458 (Dec.
17, 2004) (``Intelligence Reform Act''), extended a similar
exemption to the DNI (in addition to amending the existing
exemption to apply to the Director of the CIA).
Section 311 amends existing law to provide to the heads of
each Intelligence Community element the same limited exemption
from specified public reporting requirements that is currently
authorized for the DNI and the Director of the CIA. The
national security concerns that prompted the initial DCI
exemption, and the subsequent exemptions for the DNI and
Director of the CIA, apply with equal weight to other
Intelligence Community elements--the publication of certain
information relating to foreign gifts or decorations provided
to employees of all Intelligence Community agencies could
adversely affect United States intelligence sources. Section
311 provides the exemption necessary to protect national
security, but mandates that the information not provided to the
Secretary of State be provided to the DNI to ensure continued
independent oversight of the receipt by Intelligence Community
``employees'' of foreign gifts or decorations.
Section 312. Availability of funds for travel and transportation of
personal effects, household goods, and automobiles
Section 312 provides the CIA and the Office of the DNI the
same authority that is granted to the Department of State by
Section 2677 of Title 22, United States Code, when travel and
transportation authorized by valid travel orders begins in one
fiscal year, but may not be completed during that same fiscal
year. The Committee believes this authority will relieve the
administrative burden of charging the eligible costs to two
fiscal years' appropriations and adjusting associated accounts.
Section 313. Director of National Intelligence report on compliance
with the Detainee Treatment Act of 2005
Section 313 requires the DNI to submit a classified report
to the intelligence committees on all measures taken by the
Office of the DNI, and by any element of the Intelligence
Community with relevant responsibilities, on compliance with
two provisions of the Detainee Treatment Act of 2005. S. 3237
provided that the report should be submitted no later than
September 1, 2006. The bill now being reported establishes a
new no-later-than date for the report, May 1, 2007.
The Detainee Treatment Act of 2005 provides, in part, that
no individual in the custody or under the physical control of
the United States, regardless of nationality or physical
location, shall be subject to cruel, inhuman, or degrading
treatment or punishment. The report required by Section 313
shall include a description of any detention or interrogation
methods that have been determined to comply with this
prohibition or have been discontinued pursuant to it.
The Detainee Treatment of Act of 2005 also provides, in
part, for the protection, against civil or criminal liability,
for United States Government personnel who had engaged in
officially authorized interrogations that were determined to be
lawful at the time. Section 313 requires the DNI to report on
actions taken to implement that provision.
The report required by Section 313 shall also include an
appendix containing all guidelines on the application of the
Detainee Treatment Act of 2005 to the detention or
interrogation activities, if any, of any element of the
Intelligence Community. The appendix shall also include all
legal opinions of the DoJ about the meaning of the Detainee
Treatment Act of 2005 or its application to detention or
interrogation activities, if any, of any element of the
Intelligence Community.
Section 314. Report on any clandestine detention facilities for
individuals captured in the Global War on Terrorism
Section 314 requires the DNI to submit a classified,
detailed report to the Members of the intelligence committees
that provides a full accounting on each clandestine prison or
detention facility, if any, currently or formerly operated by
the United States Government, regardless of location, at which
detainees in the global war on terrorism are or have been held.
Section 314 sets forth required elements of this report: the
location and size of each such prison or facility, its
disposition if no longer operated by the United States
Government, plans for the ultimate disposition of detainees
currently held, a description of interrogation procedures used
or formerly used, and whether those procedures are or were in
compliance with United States obligations under the Geneva
Conventions and the Convention Against Torture. The classified
report is to be submitted no later than 60 days after enactment
of this Act.
TITLE IV--MATTERS RELATING TO ELEMENTS OF THE INTELLIGENCE COMMUNITY
Subtitle A--Office of the Director of National Intelligence
Section 401. Additional authorities of the Director of National
Intelligence on intelligence information sharing
Section 401 amends the National Security Act of 1947 to
provide the DNI statutory authority to use National
Intelligence Program funds to quickly address deficiencies or
needs that arise in intelligence information access or sharing
capabilities. The new Section 102A(g)(1)(G) of the National
Security Act of 1947 authorizes the DNI to provide to a
receiving agency or component--for that agency or component to
accept and use--funds that have been authorized and
appropriated to address intelligence information access or
sharing needs. In the alternative, the DNI may provide to a
receiving agency necessary or associated services and equipment
procured with funds from the National Intelligence Program. The
new Section 102A(g)(1)(H) of the National Security Act of 1947
also grants the DNI the authority to provide funds to non-
National Intelligence Program activities for the purpose of
addressing critical gaps in intelligence information access or
sharing capabilities. Without the authority, the development
and implementation of necessary capabilities could be delayed
by an agency's lack of authority to accept or utilize systems
funded from the National Intelligence Program, inability to use
or identify current-year funding, or concerns regarding the
augmentation of appropriations. These new DNI authorities are
similar to authority granted to the National Geospatial-
Intelligence Agency (NGA) with respect to imagery and imagery-
related systems. See Section 105(b)(2)(D)(ii) of the National
Security Act of 1947 (50 U.S.C. 403-5).
Section 402. Modification of limitation on delegation by the Director
of National Intelligence of the protection of intelligence
sources and methods
Section 402 amends the National Security Act of 1947 to
modify the limitation on delegation by the DNI of the authority
to protect intelligence sources and methods from unauthorized
disclosure. The provision permits the DNI to delegate the
authority to the Deputy Directors of National Intelligence or
the Chief Information Officer of the Intelligence Community. A
previous provision in the National Security Act of 1947 had
vested the power to protect sources and methods in the DCI, but
did not constrain further delegation of the authority.
Section 403. Authority of the Director of National Intelligence to
manage access to human intelligence information
Section 403 provides the DNI with the authority to ensure
the dissemination of intelligence information collected through
human sources, including the underlying operational data
necessary to understand that reporting, to appropriately
cleared analysts or other intelligence officers throughout the
Intelligence Community. Recent intelligence failures--
particularly related to pre-war intelligence assessments on
Iraq--have demonstrated the importance of rebuilding and
improving the nation's human intelligence capabilities. While
the Intelligence Community is making some progress in this
regard, a great deal remains to be done, particularly in the
area of access to intelligence gathered through human
intelligence operations.
The Committee's review of the Intelligence Community's
prewar assessments on Iraq highlighted the impact of
unnecessary restrictions on access by intelligence analysts to
human intelligence information. In its Report of the Select
Committee on Intelligence on the U.S. Intelligence Community's
Prewar Intelligence Assessments on Iraq, the Committee
concluded that the Intelligence Community's failure to provide
cleared analysts with a legitimate ``need-to-know'' broader
access to human intelligence reporting, including the
operational data underlying that reporting, contributed to the
flawed intelligence assessments on Iraq's weapons of mass
destruction programs. Access to this data--controlled by the
agencies that collected the information--would have provided
analysts with a better understanding of the reliability of the
sources of the reporting, as well as other significant
intelligence information required for their work.
The Intelligence Reform Act provides the DNI with a number
of tools to foster greater information access within the
Community. Section 403 builds on these tools by providing the
DNI with the specific authority to ensure analysts and other
Intelligence Community officers are provided with improved
access to human intelligence reporting, consistent with the
DNI's determinations regarding the protection of intelligence
sources and methods. Although the Committee expects that
individual elements will continue to retain human intelligence
operational data, access decisions will be made by the DNI as a
neutral arbiter of need-to-know. No longer will these access
decisions be left to individual agencies with a parochial--and
understandable--desire to protect sources at all costs. Access
to human intelligence reporting, and underlying operational
reporting, must be balanced against real threats to sources and
methods. Under Section 403, the Committee expects the DNI to
perform the necessary balancing. Section 403 also provides the
DNI with full and regular access to the information necessary
to ``manage and direct . . . the tasking of, collection,
analysis, production, and dissemination of national
intelligence by elements of the intelligence community.'' See
Section 102A(f)(1)(A)(ii) of the National Security Act of 1947
(50 U.S.C. 403-1(f)(1)(A)(ii)).
To effectively implement Section 403, the DNI should
standardize security clearance processes across Intelligence
Community elements to resolve issues that have hampered
information access in the past. The Committee does not believe
that working in a particular agency makes one Intelligence
Community officer inherently more trustworthy than a
counterpart with the same security clearance and a legitimate
``need-to-know'' at another element. Resolution of disparate
clearance standards and processes, however, should provide
Intelligence Community elements with an additional degree of
comfort that, while information from sources for which those
agencies are responsible has received greater distribution, the
recipients of that information are appropriately cleared
consistent with DNI standards. Based on the authorities
provided to the DNI in the Intelligence Reform Act and this
section, the Committee is confident that the DNI can implement
the protections necessary for intelligence sources and methods,
while making human intelligence information more readily
available to appropriately cleared intelligence officers who
need the information for the conduct of their duties.
Section 404. Additional administrative authority of the Director of
National Intelligence
From an organizational standpoint, the DNI should be able
to rapidly focus the Intelligence Community on a particular
intelligence issue through a coordinated effort that uses all
available resources. The ability of the DNI to respond with
flexibility and to coordinate the Intelligence Community
response to an emerging threat should not depend on the time-
sensitive vagaries of the budget cycle and should not be
constrained by general limitations found in appropriations law
(e.g., 31 U.S.C. 1532) or the annual limitation set forth in
the ``General Provisions'' of the Transportation, Treasury,
Housing and Urban Development, the Judiciary, the District of
Columbia, and Independent Agencies Appropriations Act. See,
e.g., Consolidated Appropriations Act, 2005, Division H--
Transportation, Treasury, Independent Agencies, and General
Government Appropriations Act, 2005, Section 610, Pub. L. No.
108-447 (Dec. 8, 2004); see also, e.g., In re: Veterans
Administration Funding of Federal Executive Boards, 65 Comp.
Gen. 689 (July 1, 1986) (discussing history of prohibition on
interagency financing of boards, commissions, councils,
committees, or similar groups).
To provide this needed operational and organizational
flexibility, Section 404 grants the DNI the authority--
notwithstanding certain specified provisions of general
appropriations law--to approve interagency financing of
national intelligence centers (authorized under Section 119B of
the National Security Act of 1947 (50 U.S.C. 404o-2)) and of
other boards, commissions, councils, committees, or similar
groups established by the DNI (e.g., ``mission managers,'' as
recommended by the Commission on the Intelligence Capabilities
of the United States regarding Weapons of Mass Destruction (WMD
Commission)). Under Section 404, the DNI could authorize the
pooling of resources from various Intelligence Community and
non-Intelligence Community agencies to finance national
intelligence centers or other organizational groupings designed
to address identified intelligence matters. Once approved by
the DNI, the provision also expressly permits other United
States government departments and agencies, including
Intelligence Community elements, to fund, or participate in the
funding of, the authorized activities.
The Committee recognizes the need for coordinated responses
to national security threats and intelligence problems. To
better understand how the DNI intends to utilize the authority
provided under Section 404, the Committee directs the DNI to
provide an annual report--through the end of fiscal year 2010--
providing details on how this authority has been exercised,
what amount of appropriated funds attributable to each
interagency contributor has been accessed to finance each
national intelligence center or other organizational grouping
under this section, and whether the National Intelligence
Program or other budget account has been modified to provide
specific funding for such national intelligence centers or
other organizational groupings or whether funding will continue
to be provided under the authority of Section 404.
Section 405. Clarification of limitation on co-location of the Office
of the Director of National Intelligence
Section 405 clarifies that the ban on co-location of the
Office of the DNI with any other Intelligence Community
element, which is slated to take effect as of October 1, 2008,
applies to the co-location of the headquarters of the Office of
the DNI with the headquarters of any other Intelligence
Community agency or element. This provision provides
flexibility to ensure that components of the Office of the DNI
may be located in the most appropriate facility or facilities,
including co-location with components of Intelligence Community
agencies or elements. The Committee is aware that the DNI
intends to find a headquarters that is separate and apart from
the headquarters of the various Intelligence Community
elements, consistent with the expressed intent of Congress.
Section 406. Additional duties of the Director of Science and
Technology of the Office of the Director of National
Intelligence
As part of the restructuring of the nation's intelligence
infrastructure in the Intelligence Reform Act, Congress created
a Director of Science and Technology within the Office of the
DNI. Under the Act, the Director of Science and Technology
serves as the DNI's chief representative for science and
technology, assisting the DNI in formulating a long-term
strategy for scientific advances in the field of intelligence
and on the science and technology elements of the intelligence
budget. Additionally, the Director of Science and Technology
chairs the DNI's Science and Technology Committee responsible
for coordinating advances in intelligence-related research and
development.
The House-passed version of the Intelligence Authorization
Act for Fiscal Year 2007, H.R. 5020 (109th Cong., 2d Sess.),
contains a provision (Section 403) that further expounds on the
role of the Director of Science and Technology. Section 403 in
H.R. 5020 would require the Director of Science and Technology
to systematically identify the Intelligence Community's most
significant challenges requiring technical solutions and to
develop options to enhance research and development efforts to
meet requirements in a timely manner. Section 403 would also
require the DNI to submit to Congress a report detailing the
strategy for development and use of technology throughout the
Intelligence Community through 2021. The report is to identify
the Community's highest priority intelligence gaps that may be
resolved by the use of technology; identify goals for advanced
research and development; explain how advanced research and
development projects funded under the National Intelligence
Program address the identified gaps; specify current and
projected research and development projects; and provide a plan
for incorporating technology from research and development
projects into National Intelligence Program acquisition
programs.
Section 406 incorporates additional requirements into a
provision otherwise similar to Section 403 of H.R. 5020.
The Committee supports the House provision, but also
believes that such a provision should make clear that it is the
responsibility of the Director of Science and Technology to
assist the DNI in ensuring that the Intelligence Community's
research and development priorities and projects are consistent
with national intelligence requirements; that a priority be
placed on addressing identified deficiencies in the collection,
processing, analysis, or dissemination of national
intelligence; that the research and development priorities and
projects account for program development and acquisition
funding constraints; and that such priorities and projects
address system requirements from collection to final
dissemination.
The Committee further requires the Director of Science and
Technology, at the direction of the DNI, to develop and
maintain an integrated Technical Standards System for major
acquisitions. The Technical Standards System should improve the
availability of technical standards for the design,
development, and operation of Intelligence Community programs
and projects; reduce duplication of effort and improve
interoperability within the Intelligence Community, with the
private sector, and with international partners; and enhance
awareness of standardization in the Intelligence Community.
Under this provision, the Director of Science and Technology
will develop standards that document uniform engineering and
technical requirements for processes, procedures, practices,
and methods, including requirements for selection, application,
and design criteria of particular items. The Committee
encourages the DNI to consult, as appropriate, with the heads
of other United States government departments and agencies
(e.g., the Secretary of Defense, the Administrator of the
National Aeronautics and Space Administration, Secretary of
Homeland Security) when developing standards and specifications
under this provision.
Section 407. Appointment and title of Chief Information Officer of the
Intelligence Community
Section 407 converts the position of Chief Information
Officer (CIO) of the Intelligence Community from an appointment
by the President, by and with the advice and consent of the
Senate, to an appointment by the DNI. The provision also
expressly designates the position as CIO of the Intelligence
Community. The modification to the title of the position of CIO
is consistent with the position's overall responsibilities as
outlined in Section 103G(b) of the National Security Act of
1947 (50 U.S.C. 403-3g(b)). Section 407 shall apply with
respect to any appointment of an individual to serve as CIO of
the Intelligence Community that is made on or after the date of
enactment of this Act.
The CIO of the Intelligence Community has reorganized his
office to reflect his legislative responsibilities. The
reorganized office consists of the following units: (1)
Intelligence Community Governance; (2) Intelligence Community
Enterprise Architecture; (3) Information Sharing and Customer
Outreach; (4) Intelligence Community Information Technology
Management; and (4) Enterprise Services. The CIO of the
Intelligence Community has also established mechanisms to bring
together the chief information officers of major elements of
the Intelligence Community.
The creation of a CIO of the Intelligence Community
(Section 303 of the Intelligence Authorization Act for Fiscal
Year 2005 (Pub. L. No. 108-487 (Dec. 23, 2004))), combined with
the budgetary authorities and information technology
responsibilities of the DNI (see, e.g., Section 1011 of the
Intelligence Reform Act), laid an important foundation for
improvements in the information technology infrastructure of
the Intelligence Community. The Committee believes that the CIO
of the Intelligence Community must provide direction and
guidance to all elements of the Intelligence Community to
ensure that information technology research and development,
security, and acquisition programs support information access
throughout the Intelligence Community. The modification to the
manner in which the CIO of the Intelligence Community is
appointed should not be construed to diminish the authorities
or responsibilities of the position.
Section 408. Inspector General of the Intelligence Community
Section 1078 of the Intelligence Reform Act authorizes the
DNI to establish an Office of Inspector General if the DNI
determines that an Inspector General ``would be beneficial to
improving the operations and effectiveness of the Office of the
DNI.'' It further provides that the DNI may grant to the
Inspector General ``any of the duties, responsibilities, and
authorities'' set forth in the Inspector General Act of 1978.
The DNI has now appointed an Inspector General and has granted
the Inspector General certain authorities pursuant to Director
of National Intelligence Instruction No. 2005-10 (Sept. 7,
2005). The duties, responsibilities, and authorities of the
Inspector General, and his ability to exercise his authorities
across all elements of the Community, remain ambiguous,
however. In H.R. Rep. 109-411 (April 6, 2006) (report of the
Permanent Select Committee on Intelligence of the House of
Representatives (HPSCI) to accompany H.R. 5020, the
Intelligence Authorization Act for Fiscal Year 2007), the HPSCI
has also expressed concerns that ``[the Office of the Inspector
General] is currently chartered in a way that does not ensure
the maximum utility of that office to act as a coordinating
organization for all Intelligence Community Inspector Generals
[sic], specifically with regard to keeping the Committee
informed of its activities and findings.''
The problems expressed by the HPSCI report and the concerns
identified in the Committee's oversight must be addressed by an
empowered and effective Inspector General to serve the DNI and
the Intelligence Community. A strong Inspector General is vital
to achieving the goal, set forth in the Intelligence Reform
Act, of improving the operations and effectiveness of the
Intelligence Community. It is also vital to achieving the
broader goal of identifying problems and deficiencies wherever
they may be found in the Intelligence Community, including the
manner in which elements of the Community interact with each
other in such matters as providing access to information and
undertaking joint or cooperative activities. To that end, by
way of a proposed new Section 103H of the National Security Act
of 1947, Section 408 of this Act establishes an Inspector
General of the Intelligence Community.
The office will be established within the Office of the
DNI. The Inspector General will keep both the DNI and the
intelligence committees fully and currently informed about
problems and deficiencies in Intelligence Community programs
and operations and the need for corrective actions. The
Inspector General will be appointed by the President, with the
advice and consent of the Senate, and will report directly to
the DNI. To bolster the Inspector General's independence within
the Intelligence Community, the Inspector General may be
removed only by the President, who must then communicate the
reasons for the Inspector General's removal to the intelligence
committees.
The DNI may prohibit the Inspector General from conducting
an investigation, inspection, or audit if the DNI determines
that such action is necessary to protect vital national
security interests. If the DNI exercises the authority to
prohibit an investigation, the DNI must provide the reasons for
taking such action to the intelligence committees within seven
days. The Inspector General may, as necessary, provide a
response to the intelligence committees regarding the actions
of the DNI.
The Inspector General will have direct and prompt access to
the DNI and any Intelligence Community employee, or employee of
a contractor, whose testimony is needed. The Inspector General
will also have direct access to all records that relate to
programs and activities for which the Inspector General has
responsibility. Failure to cooperate will be grounds for
appropriate administrative action.
The Inspector General will have subpoena authority;
however, information within the possession of the United States
government must be obtained through other procedures. Subject
to the DNI's concurrence, the Inspector General may request
information from any United States government department,
agency, or element. Upon receiving such a request from the
Inspector General, heads of United States government
departments, agencies, and elements, insofar as practicable and
not in violation of law or regulation, must provide the
requested information to the Inspector General.
The Inspector General must submit semiannual reports to the
DNI that include a description of significant problems relating
to Intelligence Community programs and operations and to the
relationships between Intelligence Community elements. The
reports must include a description of Inspector General
recommendations and a statement whether corrective action has
been completed. Within 30 days of receiving the report from the
Inspector General, the DNI must submit each semiannual report
to Congress.
The Inspector General must immediately report to the DNI
particularly serious or flagrant violations. Within seven days,
the DNI must transmit those reports to the intelligence
committees, together with any comments. In the event the
Inspector General is unable to resolve differences with the
DNI, the Inspector General is authorized to report the serious
or flagrant violation directly to the intelligence committees.
Reports to the intelligence committees are also required with
respect to investigations concerning high-ranking Intelligence
Community officials.
Intelligence Community employees, or employees of
contractors, who intend to report to Congress an ``urgent
concern''--such as a violation of law or Executive order, a
false statement to Congress, or a willful withholding from
Congress--may report such complaints and supporting information
to the Inspector General. Following a review by the Inspector
General to determine the credibility of the complaint or
information, the Inspector General must transmit such complaint
and information to the DNI. On receiving the complaints or
information from the Inspector General (together with the
Inspector General's credibility determination), the DNI must
transmit such complaint or information to the intelligence
committees. If the Inspector General does not find a complaint
or information to be credible, the reporting individual may
submit the matter directly to the intelligence committees by
following appropriate security practices outlined by the DNI.
Reprisals or threats of reprisal against reporting individuals
constitute reportable ``urgent concerns.'' The Committee will
not tolerate actions by the DNI, or by any Intelligence
Community element, constituting a reprisal for reporting an
``urgent concern'' or any other matter to Congress.
Nonetheless, reporting individuals should ensure that the
complaint and supporting information are provided to Congress
consistent with appropriate procedures designed to protect
intelligence sources and methods and other sensitive matters.
For matters within the jurisdiction of both the Inspector
General of the Intelligence Community and an Inspector General
for another Intelligence Community element (or a parent
department or agency), the Inspectors General must
expeditiously resolve who will undertake the investigation,
inspection, or audit. For investigations, inspections, or
audits commenced by an Inspector General of an Intelligence
Community element prior to the enactment of this Act, the
Inspector General of the Intelligence Community should exercise
his authority in a manner that does not disrupt the timely
completion of such investigations, inspections, or audits or
result in unnecessary duplication of effort. An Inspector
General for an Intelligence Community element must share the
results of any inspection, investigation, or audit with any
other Inspector General, including the Inspector General of the
Intelligence Community, who otherwise would have had
jurisdiction over the investigation.
Consistent with existing law, the Inspector General must
report to the Attorney General any information, allegation, or
complaint received by the Inspector General relating to
violations of Federal criminal law.
Section 408 includes modifications proposed by the Armed
Services Committee of the Senate during its sequential
consideration of S. 1803, the Intelligence Authorization Act
for Fiscal Year 2006. In addition to technical modifications,
these proposed modifications: (1) removed the authority of the
Inspector General of the Intelligence Community to serve as the
final arbiter of jurisdictional disputes among Intelligence
Community Inspectors General; (2) exempted initial
investigations, inspections, or audits of the DoD Inspector
General, or any other Inspectors General within the DoD, from
the authority of the Inspector General of the Intelligence
Community to conduct a subsequent investigation, inspection, or
audit of the same matter if the initial investigation,
inspection, or audit was deemed deficient; and (3) deleted a
requirement that Intelligence Community Inspectors General must
comply fully with requests for information or assistance from
the Inspector General of the Intelligence Community. Compare S.
1803, Section 408, as reported by the Committee (S. Rep. 109-
142 (Sept. 29, 2005) (adding proposed subsection (g)(1),
(g)(3), and (h)(3)(C) of new Section 103H of the National
Security Act of 1947)) with S. 1803, Section 408, as reported
by the Armed Services Committee (S. Rep. 109-173 (Oct. 27,
2005) (modifying proposed subsection (g)(1), (g)(3), and
(h)(3)(C))).
Section 409. Leadership and location of certain offices and officials
Section 409 expressly places four officials within the
statutorily-defined Office of the DNI: (1) the CIO of the
Intelligence Community; (2) the Inspector General of the
Intelligence Community; (3) the Director of the National
Counterterrorism Center; and (4) the Director of the National
Counter Proliferation Center (NCPC). It also provides that the
DNI shall appoint the Director of the NCPC.
The establishment of a Director of the NCPC is consistent
with Section 1022 of the Intelligence Reform Act. Section 1022
added a new Section 119A of the National Security Act of 1947,
which provides that the President shall establish an NCPC.
Under the Act, the NCPC has seven missions and objectives and
should serve as the primary organization within the United
States government for analyzing and integrating all
intelligence pertaining to proliferation. Among its other
powers, the NCPC is authorized to coordinate the counter
proliferation plans and activities of all United States
government departments and agencies. Section 119A also provided
that the NCPC should conduct ``strategic operational planning''
for the United States government to prevent the spread of
weapons of mass destruction, delivery systems, and materials
and technologies.
Congress provided the President with the authority to waive
any, or all, of the requirements of Section 119A if it was
determined that they did not materially improve the
nonproliferation ability of the United States. At the time
Congress enacted the Intelligence Reform Act, the WMD
Commission had not completed its work. Congress provided that
the President, after receiving the WMD Commission report,
should submit to Congress his views on the establishment of the
NCPC.
In its March 31, 2005, report, the WMD Commission
recommended that the President establish a relatively small
NCPC that manages and coordinates analysis and collection
across the Intelligence Community on nuclear, biological, and
chemical weapons. The WMD Commission supported the concept of
``strategic operational planning,'' but recommended that it not
be performed by the NCPC.
On June 29, 2005, the White House announced that the
President had endorsed the establishment of an NCPC. The
statement provided that the NCPC would exercise ``strategic
oversight'' of the Intelligence Community's weapons of mass
destruction activities. The DNI would ensure that the NCPC
establishes strategic intelligence collection and analysis
requirements regarding WMD that are consistent with United
States policies. Under the President's plan, the NCPC would be
established within the Office of the DNI, and the DNI would
appoint the Director of the NCPC who would then report to the
DNI. On August 8, 2005, the DNI announced the appointment of
the first Director of the NCPC. This appointment represented an
important first step in the establishment of the NCPC.
Section 409 does not amend any other procedural or
substantive provision of Section 119A of the National Security
Act of 1947. If the President determines not to assign to the
NCPC any power provided by Section 119A, notice must be
provided to Congress in writing as required by that section.
Section 410. National Space Intelligence Center
The United States maintains a very large investment in
satellites, and this investment has grown dramatically in
recent years. These satellites serve the commercial and
national security needs of the nation. As such, a loss of any
or all of these assets could do tremendous harm to our economy
and security.
At the same time, our investment in intelligence collection
concerning threats to our interests in space has declined
markedly as a function of our overall investment in space
systems. Despite this significant investment, some estimates
indicate that we commit only 10 percent of what we did nearly
25 years ago to the analysis of threats to space systems.
Recent international events have only served to highlight this
problem.
In an effort to better understand the future threats to our
space assets, as well as potential threats to the United States
from space, Section 410 establishes a National Space
Intelligence Center (NSIC). It is not the intent of the
Committee that the NSIC be a physical consolidation of existing
intelligence entities with responsibilities for various types
of intelligence related to space. Rather, the Committee
believes that the first function of the NSIC is to coordinate
all collection, analysis, and dissemination of intelligence
related to space, as well as participate in Intelligence
Community analyses of requirements for space systems. The NSIC
augments the existing efforts of the National Air and Space
Intelligence Center (NASIC) and Missile and Space Intelligence
Center (MSIC); it is not designed to replace them. Indeed, the
Committee intends that the NSIC work closely with NASIC and
MSIC to ensure a coordinated Intelligence Community response to
issues that intersect the responsibilities of all three
organizations.
The Director of the NSIC shall be the National Intelligence
Officer for Science and Technology, and the Committee
encourages the appointment of an Executive Director from the
Senior Intelligence Service. Further details related to the
mission of the NSIC can be found in the Classified Annex.
Section 411. Operational files in the Office of the Director of
National Intelligence
Section 411 adds a new Section 700 to the National Security
Act of 1947. It ensures that protected operational files
provided by elements of the Intelligence Community to the
Office of the DNI carry with them any exemption such files had
from Freedom of Information Act (FOIA) requirements for search,
review, publication, or disclosure.
In the CIA Information Act, Congress authorized the DCI to
exempt operational files of the CIA from several requirements
of the FOIA, particularly those requiring search and review in
response to FOIA requests. In a series of enactments codified
in Title VII of the National Security Act of 1947, Congress has
extended the exemption to the operational files of the NGA, the
National Security Agency (NSA), the National Reconnaissance
Office (NRO), and the Defense Intelligence Agency (DIA). It has
also provided that the files of the Office of the National
Counterintelligence Executive (NCIX) should be treated as
operational files of the CIA (to the extent they meet the
criteria for CIA operational files).
The components of the Office of the DNI, including the
National Counterterrorism Center (NCTC), require access to
information contained in operational files. The purpose of
Section 411 is to make clear that the operational files of any
component of the Intelligence Community, for which an
operational files exemption is applicable, retain their
exemption from FOIA search, review, disclosure, or publication.
The new Section 700 of the National Security Act of 1947
provides several limitations. The exemption does not apply to
information disseminated beyond the Office of the DNI. Also, as
Congress has provided in the operational files exemptions for
the CIA and other Intelligence Community elements, Section 700
provides that the exemption from search and review does not
apply to requests by United States citizens or permanent
residents for information about themselves (although other FOIA
exemptions, such as appropriate classification, may continue to
protect such files from public disclosure). The search and
review exemption would not apply to the subject matter of
Congressional or Executive Branch investigations into
improprieties or violations of law.
In the DNI's annual request to the Committee for
legislative authorities during the fiscal year 2006 legislative
cycle, the Office of the DNI asked for a broader exemption from
the FOIA than currently provided in Section 411. The Committee
considers it likely that the operations of the Office of the
DNI, in particular the activities of the NCTC and the NCPC, may
require an operational files exemption. Before acting on such a
request, the DNI, through the CIO of the Intelligence Community
or other appropriate officers, should systematically study and
report to the intelligence committees regarding the application
of the FOIA to the Office of the DNI.
As part of this review, the DNI should report on the
responsibility assigned by Congress in the Intelligence Reform
Act concerning operational file exemptions. Congress amended
each operational file statute to provide that the exemption
should be made only with the coordination of the DNI. Congress
also provided that the decennial review of the exemptions in
force must be undertaken with the DNI. These decennial reviews
must include consideration of the historical value or other
public interest in categories of files and the potential for
declassifying a significant amount of the material in them. The
DNI should advise the intelligence committees on the benefits
of coordinating the five decennial reviews which now occur at
different times.
Section 412. Eligibility for incentive awards of personnel assigned to
the Office of the Director of National Intelligence
Section 412 updates Section 402 of the Intelligence
Authorization Act for Fiscal Year 1984 (Pub. L. No. 98-215
(Dec. 9, 1983)) to reflect and incorporate organizational
changes made by the Intelligence Reform Act. Section 412 also
makes other technical and stylistic amendments and strikes a
subsection of the law that applied only during fiscal year
1987.
Section 413. Repeal of certain authorities relating to the Office of
the National Counterintelligence Executive
Section 413 amends the authorities and structure of the
Office of the NCIX to eliminate certain independent
administrative authorities that had been vested in the NCIX
when that official was appointed by, and reported to, the
President. Those authorities are unnecessary, redundant, and
anomalous now that the NCIX is to be appointed by, and under
the authority, direction, and control of the DNI.
Section 414. Inapplicability of Federal Advisory Committee Act to
advisory committees of the Office of the Director of National
Intelligence
Congress enacted the Federal Advisory Committee Act (FACA)
(5 U.S.C. App.) to regulate the use of advisory committees
throughout the Federal Government. The FACA sets forth the
responsibilities of Congress and the Executive Branch with
regard to such committees and outlines procedures and
requirements for such committees. As originally enacted in
1972, the FACA expressly exempted advisory committees utilized
by the CIA and the Federal Reserve System. Section 414 amends
the FACA to extend this exemption to those advisory committees
established or used by the Office of the DNI.
Section 415. Membership of the Director of National Intelligence on the
Transportation Security Oversight Board
Section 415 substitutes the DNI, or the DNI's designee, as
a Member of the Transportation Security Oversight Board
established under Section 115(b)(1) of Title 49, United States
Code, in place of the Director of the CIA, or the Director of
the CIA's designee.
Section 416. Applicability of the Privacy Act to the Director of
National Intelligence and Office of the Director of National
Intelligence
The Privacy Act (5 U.S.C. 552a) has long contained a
provision under which the Director of the CIA could promulgate
rules to exempt any system of records within the CIA from
certain disclosure requirements under the Act. The provision
was designed to ensure that the CIA could provide adequate and
appropriate safeguards for certain sensitive information in its
records systems. In assuming the leadership of the Intelligence
Community, the DNI similarly requires the ability to safeguard
sensitive information in records systems within the Office of
the DNI. Section 416 extends to the DNI the authority to
promulgate rules under which certain records systems of the
Office of the DNI may be exempted from certain Privacy Act
disclosure requirements.
Subtitle B--Central Intelligence Agency
Section 421. Director and Deputy Director of the Central Intelligence
Agency
The Intelligence Reform Act established the positions of
the DNI and the PDDNI and abolished the positions of DCI and
Deputy Director of Central Intelligence as those positions had
previously existed. The DNI and PDDNI are responsible for
leading the entire Intelligence Community, which includes many
components from the DoD. Moreover, the DNI and PDDNI must
ensure that the war fighter continues to receive timely,
actionable intelligence. Accordingly, the Intelligence Reform
Act continued the tradition of permitting a commissioned
officer to serve as either the leader or principal deputy of
the Intelligence Community, so long as both positions are not
filled by commissioned officers at the same time.
In establishing the positions of DNI and PDDNI, the Act
separated the leadership of the Intelligence Community from the
leadership of the CIA. Although the Act explicitly provided for
a Director of the CIA, it did not provide for a statutory
deputy to the Director.
Section 421 establishes the position of Deputy Director of
the CIA. The Deputy Director will be appointed by the
President, by and with the advice and consent of the Senate,
and will assist the Director of the CIA in carrying out the
duties and responsibilities of that office. In the event of a
vacancy in the position of Director of the CIA, or during the
absence or disability of the Director, the Deputy Director will
act for, and exercise the powers of, the Director. The DNI will
recommend a nominee to the President to fill any vacancy in
this position.
With the amendments made by Section 421, the Presidential
nomination of both the Director and Deputy Director of the CIA
must be confirmed by the advice and consent of the Senate.
Given the sensitive operations of the CIA, nominees for the
positions of Director and Deputy Director of the CIA merit
close scrutiny by Congress to examine the nominees'
qualifications prior to their assumption of the duties of these
offices. With respect to the Deputy Director of the CIA, the
requirement for Senate confirmation also provides assurance
that, in the event of a vacancy in the position of Director of
the CIA, or during the absence or disability of the Director,
Congress will have previously expressed its confidence in the
ability of the nominee to assume those additional duties.
Section 421 also requires that both the Director and Deputy
Director of the CIA be appointed ``from civilian life.'' The
considerations that encourage appointment of a military officer
to the position of DNI or PDDNI do not apply to the leadership
of the CIA. Indeed, given the CIA's establishment in 1947 as an
independent civilian intelligence agency with no direct
military or law enforcement responsibilities, the Committee
does not believe that a similar construct of military
leadership is appropriate at that agency. Accordingly, the
Committee recommends that both the Director and Deputy Director
of the CIA should be appointed from civilian life. To preserve
the important liaison relationship between the military and the
CIA, the Committee recognizes the important role played by the
Associate Director of the CIA for Military Support and
continues to support the appointment of a current military
officer to that position.
Unlike the requirement that the Secretary of Defense be
appointed ``from civilian life'' (see 10 U.S.C. 113(a)),
Section 421 does not contain any limitation on how long a
nominee must have been ``from civilian life'' prior to
appointment. The only restriction is that an active duty
officer must first retire or resign his or her commission and
return to civilian life prior to being appointed as either the
Director or Deputy Director of the CIA. Thus, the President
retains the flexibility to nominate candidates with significant
military experience for either or both positions.
Given the nomination by the President of General Michael V.
Hayden to serve as Director of the CIA, this Committee's
favorable reporting of that nomination to the full Senate, and
the Senate's confirmation of General Hayden, the Committee has
included a provision that will make the requirement that the
Director of the CIA be appointed ``from civilian life''
applicable to the nomination of the successor to the Director
of the CIA in office on the date of enactment of this Act.
With respect to the Deputy Director of the CIA, the
Committee has also included a provision that will make the
nomination and confirmation requirements of Section 421
applicable to the successor to the individual administratively
performing the duties of the Deputy Director of the CIA on the
date of enactment of this Act. The prohibition on an active
duty commissioned officer serving as the Deputy Director of the
CIA and the requirement that the position be filled by a
Presidential nominee confirmed by the Senate will not take
effect until the earlier of the date the President nominates an
individual to serve in such position or the date the individual
presently performing the duties of that office leaves the post.
To insulate an officer serving as the Director or Deputy
Director of the CIA from undue military influence, Section 421
provides that so long as the individual continues to perform
the duties of the Director or Deputy Director of the CIA, he
may continue to receive military pay and allowances, but he is
not subject to the supervision or control of the Secretary of
Defense or any of the military or civilian personnel of the
DoD.
Section 422. Enhanced protection of Central Intelligence Agency
intelligence sources and methods from unauthorized disclosure
Section 422 amends the National Security Act of 1947 to
provide the Director of the CIA the authority to protect CIA
intelligence sources and methods from unauthorized disclosure,
consistent with any direction from the President or the DNI.
Prior to the Intelligence Reform Act, the authority to protect
intelligence sources and methods had been assigned to the DCI,
as head of the Intelligence Community. The CIA relied on the
DCI's sources and methods authority as the CIA's primary
statutory basis for protecting a range of CIA information,
including its human sources, from public or unauthorized
disclosure in a wide range of contexts and proceedings. This
authority proved critical for assuring current and potential
human intelligence sources that CIA could, and would, keep the
fact of their association with the United States government
secret, whether in civil litigation, administrative
proceedings, or other arenas. In Section 102A(i) of the
National Security Act, as added by the Intelligence Reform Act,
Congress transferred this DCI authority to the DNI.
In the DNI's annual request to the Committee for
legislative authorities during the fiscal year 2006 legislative
cycle, the DNI asked that a provision similar to Section 422 be
enacted to supplement the grant of authority to the DNI with a
comparable grant to the Director of the CIA, subject to the
direction of the President or DNI. It is intended to underscore
for intelligence sources that the CIA has explicit statutory
authority to protect its sources and methods. The revision to
Section 104A(d) of the National Security Act of 1947 is not
intended to, and does not, authorize the Director of the CIA to
withhold from the DNI any CIA information to which the DNI is
entitled by statute, Executive order, Presidential directive,
or other applicable law or regulation.
Section 422 also makes conforming changes to Section 6 of
the CIA Act of 1949.
Section 423. Additional exception to foreign language proficiency
requirement for certain senior level positions in the Central
Intelligence Agency
Section 423 modifies statutory provisions pertaining to
foreign language proficiency for certain senior officials in
the CIA. Currently, Section 104A(g) of the National Security
Act of 1947 (Section 421 of the Committee's bill results in the
re-designation of Section 104A(g) as 104A(h)) provides that an
individual cannot be appointed to a position in the Senior
Intelligence Service in the CIA's Directorate of Intelligence
(DI) or Directorate of Operations (DO) (now the National
Clandestine Service) unless the individual demonstrates at
least a specified level of professional speaking and reading
proficiency in a foreign language. Current law also grants the
Director of the CIA limited authority to waive this requirement
with respect to a position or class of positions with
notification to the intelligence committees.
Section 423 enhances CIA management flexibility by
authorizing the Director of the CIA to waive the foreign
language proficiency requirement, not just with respect to
positions or categories of positions, but also as to individual
officers or categories of individual officers--subject to the
Director of the CIA's determination that such proficiency is
not necessary for the successful performance of the duties and
responsibilities involved. The section also adds a
``grandfather'' clause to the language proficiency requirement,
creating a transition period that will allow CIA leadership to
more effectively manage the senior Agency workforce during a
critical period of change. Section 423 also updates an outdated
reference to the DO, now the ``National Clandestine Service.''
Finally, Section 423 makes appropriate conforming changes to
the report on waivers currently required by Section 104A(g).
The Committee expects the CIA to move forward in its
commitment to enhance its overall language capabilities. The
personnel flexibility granted by Section 423 will allow the
Director of the CIA to better integrate requirements for
language skills into leadership training, promotion, and
retention decisions and to plan for the projected influx of new
DI and National Clandestine Service officers.
Section 424. Additional functions and authorities for protective
personnel of the Central Intelligence Agency
Section 424 amends Section 5(a)(4) of the CIA Act of 1949
(50 U.S.C. 403f(a)(4)) which authorizes protective functions by
designated security personnel who serve on CIA protective
details.
a. Arrest Authority
Section 424 authorizes protective detail personnel, when
engaged in the performance of protective functions, to make
arrests in two circumstances. Under this section, protective
detail personnel may make arrests without a warrant for any
offense against the United States--whether a felony,
misdemeanor, or infraction--that is committed in their
presence. They may also make arrests without a warrant if they
have reasonable grounds to believe that the person to be
arrested has committed or is committing a felony, but not other
offenses, under the laws of the United States.
Regulations, approved by the Director of the CIA and the
Attorney General, will provide safeguards and procedures to
ensure the proper exercise of this authority. The provision
specifically does not grant any authority to serve civil
process or to investigate crimes.
By granting CIA protective detail personnel limited arrest
authority, the provision mirrors statutes applicable to certain
Federal law enforcement agencies that are authorized to perform
protective functions. The authority provided under this section
is consistent with those of other Federal elements with
protective functions, such as the Secret Service (see 18 U.S.C.
3056(c)(1)(c)), the State Department's Diplomatic Security
Service (see 22 U.S.C. 2709(a)(5)), and the Capitol Police (see
2 U.S.C. 1966(c)). Arrest authority will contribute
significantly to the ability of CIA protective detail personnel
to fulfill their responsibilities to protect officials against
serious threats without being dependent on the response of
Federal, State, or local law enforcement officers. The grant of
arrest authority under this amendment is supplemental to all
other authority that CIA protective detail personnel have by
virtue of their statutory responsibility to perform the
protective functions set forth in the CIA Act of 1949.
b. Protection of Personnel of the Office of the DNI
Section 424 also authorizes the Director of the CIA, on
request of the DNI, to make CIA protective detail personnel
available to the DNI and to other personnel within the Office
of the DNI. The DNI, in consultation with the Director of the
CIA and the Attorney General, should advise the intelligence
committees within 180 days of enactment of this Act on whether
this arrangement meets the protective needs of the Office of
the DNI or whether other statutory authority is needed.
Section 425. Director of National Intelligence report on retirement
benefits for former employees of Air America
Section 425 provides for a report by the DNI on the
advisability of providing federal retirement benefits to United
States citizens who were employees of Air America or an
associated company prior to 1977, during the time that the
company was owned or controlled by the United States and
operated by the CIA. There were bills in the Senate and House
(S. 651 and H.R. 1276) in the 109th Congress that would have
provided federal retirement benefits for those employees. By
including Section 425 in this authorization bill, the Committee
takes no position on the merits of that legislation. The sole
purpose of Section 425 is to direct the DNI to undertake a
study about Air America, its relationship to the CIA, the
missions it performed, and casualties its employees suffered,
as well as the retirement benefits that had been contracted
for, or promised to, the employees and what they received. The
DNI shall make recommendations on the advisability of
legislative action and include any views that the Director of
the CIA may have on the matters covered by the report. On the
request of the DNI, the Comptroller General shall assist in the
preparation of the report in a manner consistent with the
protection of classified information.
Subtitle C--Defense Intelligence Components
Section 431. Enhancements of National Security Agency training program
Section 16 of the NSA Act of 1959 (50 U.S.C. 402 note)
authorizes the NSA to establish and maintain an undergraduate
training program to facilitate the recruitment of individuals
with skills critical to the NSA's mission. Under the program,
the government has always had the right to recoup the
educational costs expended for the benefit of employees whose
employment with NSA is ``terminated''--either voluntarily by
the employee or by the NSA for misconduct.
Section 431 amends Section 16(d) of the NSA Act of 1959 to
clarify that ``termination of employment'' includes situations
in which employees fail to maintain satisfactory academic
performance as defined by the Director of NSA. Such employees
shall be in breach of their contractual agreement and, in lieu
of any service obligation arising under such agreement, shall
be liable for repayment. Failure to maintain satisfactory
academic performance has always been grounds for default
resulting in the right of the government to recoup the
educational costs expended for the benefit of the defaulting
employee. Thus, this provision is a clarification of that
obligation.
In addition, Section 431 permits the Director of NSA to
protect intelligence sources and methods by deleting a
requirement that the NSA publicly identify to educational
institutions which students are NSA employees. Deletion of this
disclosure requirement will enhance the ability of NSA to
protect personnel and prospective personnel and to preserve the
ability of training program participants to undertake future
clandestine or other sensitive assignments for the Intelligence
Community. The Committee recognizes that nondisclosure is
appropriate when disclosure would threaten intelligence sources
or methods, would endanger the life or safety of the student,
or would limit the employee's or prospective employee's ability
to perform intelligence activities in the future. Despite the
deletion of the disclosure requirement, the Committee expects
the NSA to continue to prohibit participants in the training
program from engaging in any intelligence functions at the
institutions they attend under the program. See H.R. Rep. 99-
690, Part I (July 17, 1986) (``NSA employees attending an
institution under the program will have no intelligence
function whatever to perform at the institution.'').
Section 432. Codification of authorities of National Security Agency
protective personnel
Section 432 amends the NSA Act of 1959 (50 U.S.C. 402 note)
by adding a new Section 21, to clarify and enhance the
authority of protective details for the NSA.
New Section 21(a) would authorize the Director of the NSA
to designate NSA personnel to perform protective detail
functions for the Director and other personnel of the NSA who
are designated from time to time by the Director of the NSA as
requiring protection. Section 11 of the NSA Act of 1959
presently provides that the Director of NSA may authorize
agency personnel to perform certain security functions at NSA
headquarters, at certain other facilities, and around the
perimeter of those facilities. The new authority for protective
details would enable the Director of the NSA to provide
security when the Director or other designated personnel
require security away from those facilities.
New Section 21(b) would provide that NSA personnel, when
performing protective detail functions, may exercise the same
arrest authority that Section 424 provides for CIA protective
detail personnel. The arrest authority for NSA protective
detail personnel would be subject to guidelines approved by the
Director of the NSA and the Attorney General. The purpose and
extent of that arrest authority, and the limitations on it, are
described in the section-by-section explanation for Section
424. That analysis applies equally to the arrest authority
provided to NSA protective detail personnel by Section 21(b).
While this bill provides separately for authority for CIA
and NSA protective details, the DNI should advise the
intelligence committees whether overall policies, procedure,
and authority should be provided for protective services, when
necessary, for other elements or personnel (or their immediate
families) of the Intelligence Community.
Section 433. Inspector General matters
The Inspector General Act of 1978 (Pub. L. No. 95-452 (Oct.
12, 1978)) established a governmentwide system of Inspectors
General, some appointed by the President with the advice and
consent of the Senate and others ``administratively appointed''
by the heads of their respective Federal entities. These
Inspectors General were authorized to ``conduct and supervise
audits and investigations relating to the programs and
operations'' of the government and ``to promote economy,
efficiency, and effectiveness in the administration of, and . .
. to prevent and detect fraud and abuse in, such programs and
operations.'' See 5 U.S.C. App. 2. These Inspectors General
also perform an important reporting function, ``keeping the
head of the establishment and the Congress fully and currently
informed about problems and deficiencies relating to the
administration of . . . programs and operations and the
necessity for and progress of corrective action.'' Id. The
investigative authorities exercised by Inspectors General, and
their relative independence from the government operations they
audit and investigate, provide an important mechanism to ensure
that the operations of the government are conducted as
efficiently and effectively as possible.
The Inspectors General of the CIA and the Departments of
Defense, Energy, Homeland Security, Justice, State, and
Treasury are appointed by the President, with the advice and
consent of the Senate. These Inspectors General--authorized by
either the Inspectors General Act of 1978 or Section 17 of the
CIA Act of 1949--enjoy a degree of independence from all but
the head of their respective departments or agencies. These
Inspectors General also have explicit statutory authority to
access information from their respective departments or
agencies or other United States government departments and
agencies and may use subpoenas to access information (e.g.,
from a department or agency contractor) necessary for them to
carry out their authorized functions.
The NRO, DIA, NSA, and NGA have established their own
``administrative'' Inspectors General. Because they are not
identified in Section 8G of the Inspector General Act of 1978,
however, these Inspectors General lack the explicit statutory
authorization to access information relevant to their audits or
investigations, or to compel the production of such information
via subpoena. This lack of authority has impeded access to
information--in particular, information from contractors--that
is necessary for these Inspectors General to perform their
important function. These Inspectors General also lack the
indicia of independence necessary for the Government
Accountability Office to recognize the annual financial
statement audits of these Inspectors General as compliant with
the Chief Financial Officers Act of 1990 (Pub. L. No. 101-576
(Nov. 15, 1990)). This lack of independence also prevents the
DoD Inspector General, and would prevent the Inspector General
of the Intelligence Community, from relying on the results of
NRO, DIA, NSA, or NGA Inspector General audits or
investigations that must meet ``generally accepted government
auditing standards.''
To provide an additional level of independence and to
ensure prompt access to the information necessary for these
Inspectors General to perform their audits and investigations,
Section 433 amends Section 8G(a)(2) of the Inspector General
Act of 1978 to include the NRO, DIA, NSA, and NGA as
``designated federal entities.'' As so designated, the heads of
these Intelligence Community elements will be required by
statute to administratively appoint Inspectors General for
these agencies. As designated Inspectors General under the
Inspector General Act of 1978, these Inspectors General will be
responsible to the heads of the NRO, DIA, NSA, and NGA. The
removal or transfer of these Inspectors General from their post
by the heads of their respective office or agency must be
promptly reported to the intelligence committees. These
Inspectors General will also be able to exercise other
investigative authorities, including those governing access to
information and the issuance of subpoenas, utilized by other
Inspectors General under the Inspector General Act of 1978.
To protect vital national security interests, Section 433
permits the DNI or the Secretary of Defense to prohibit the
Inspectors General of the NRO, DIA, NSA, and NGA from
initiating, carrying out, or completing any audit or
investigation they are otherwise authorized to conduct. This
authority--similar to the authority of the Director of the CIA
under Section 17 of the CIA Act of 1949 with respect to the
Inspector General of the CIA and the authority of the Secretary
of Defense under Section 8 of the Inspector General Act of 1978
with respect to the DoD Inspector General--provides the
President, through the DNI or the Secretary of Defense, a
mechanism to protect extremely sensitive intelligence sources
and methods or other vital national security interests. The
Committee expects that this authority will be exercised rarely
by the DNI or the Secretary of Defense.
Section 434. Confirmation of appointment of heads of certain components
of the intelligence community
Under present law and practice, the directors of the NSA,
NGA, and NRO--each with a distinct and significant role in the
national intelligence mission--are not confirmed by the Senate
in relation to their leadership positions at these agencies.
Presently, the President appoints the Directors of NSA and NGA,
and the Secretary of Defense appoints the Director of the NRO.
None of the appointments must be confirmed by the Senate,
unless a military officer is promoted or transferred into the
position. Under such circumstances, Senate confirmation of the
officer's promotion or assignment to that position is the
responsibility of the Committee on Armed Services. The review
of the Committee on Armed Services, however, relates to the
military promotion or assignment and not specifically to the
assumption by the individual of the leadership of these
critical Intelligence Community elements.
Section 434 provides, expressly and uniformly, that the
heads of each of these entities shall be nominated by the
President and that such nominations will be confirmed by the
advice and consent of the Senate. The NSA, NGA, and NRO play a
critical role in the national intelligence mission of the
United States government. The spending of these agencies
comprises a significant portion of the entire intelligence
budget of the United States, and a substantial portion of the
National Intelligence Program. Through advice and consent, the
Senate can enable the Congress to fulfill more completely its
responsibility for providing oversight to the intelligence
activities of the U.S. Government. Section 434 does not alter
the role of the Committee on Armed Services in reviewing and
approving the promotion or assignment of military officers.
Section 434(b) provides that the amendments made by Section
434 apply prospectively. Therefore, the Directors of NSA, NGA,
and NRO as of the date of the enactment of this Act will not be
affected by the amendments, which will apply initially to the
appointment and confirmation of their successors.
Section 435. Clarification of national security missions of National
Geospatial-Intelligence Agency for analysis and dissemination
of certain intelligence information
The National Imagery and Mapping Agency Act of 1996 (Pub.
L. No. 104-201 (Sept. 23, 1996) (NIMA Act)) formally merged the
imagery analysis and mapping efforts of the DoD and the CIA. In
the NIMA Act, Congress cited a need ``to provide a single
agency focus for the growing number and diverse types of
customers for imagery and geospatial information resources
within the Government . . . to harness, leverage, and focus
rapid technological developments to serve the imagery, imagery
intelligence, and geospatial information customers.'' See
Section 1102(1) of the NIMA Act. Since then, there have been
rapid developments in airborne and commercial imagery
platforms, new imagery and geospatial phenomenology, full
motion video, and geospatial analysis tools.
Section 921 of the National Defense Authorization Act for
Fiscal Year 2004 (Pub. L. No. 108-136 (Nov. 24, 2003)) changed
the name of the National Imagery and Mapping Agency to the
National Geospatial-Intelligence Agency. The name change was
intended to introduce the term ``geospatial intelligence'' to
better describe the unified activities of the NGA related to
the ``analysis and visual representation of characteristics of
the earth and activity on its surface.'' See S. Rep 108-46 (May
13, 2003) (accompanying The National Defense Authorization Act
for Fiscal Year 2004, S. 1050, 108th Cong., 1st Sess.).
Though the NGA has made significant progress toward
unifying the traditional imagery analysis and mapping missions
of the CIA and the DoD, it has been slow to embrace other
facets of ``geospatial intelligence'' that have recently been
enabled by advances in technology, including the processing,
storage, and dissemination of full motion video (FMV) and
ground-based photography. The NGA's current library of
geospatial products reflects its heritage--predominantly
overhead imagery and mapping products. While the NGA is
beginning to incorporate more airborne and commercial imagery,
its products are nearly devoid of FMV and ground-based
photography.
The Committee believes that these new products (including
FMV and ground-based photography) should be included, with
available positional data, in NGA libraries for retrieval on
DoD and Intelligence Community networks. Current mission
planners and military personnel are well-served with
traditional imagery products and maps, but FMV of the route to
and from a facility or photographs of what a facility would
look like to a foot soldier--rather than from an aircraft--
would be of immense value to our military personnel and
intelligence officers. Ground-based photography is amply
available from open sources, as well as other government
sources such as military units, U.S. embassy personnel, Defense
Attaches, Special Operations Forces, foreign allies, and
clandestine officers. These products should be better
incorporated into NGA data libraries.
To address these concerns, Section 435 adds an additional
national security mission to the responsibilities of the NGA.
To fulfill this new mission, the NGA would be required, as
directed by the DNI, to ``analyze, disseminate, and incorporate
into the National System for Geospatial-Intelligence,
likenesses, videos, or presentations produced by ground-based
platforms, including handheld or clandestine photography taken
by or on behalf of human intelligence collection organizations
or available as open-source information.'' Section 435 also
makes clear that this new responsibility ``does not include the
authority to manage or direct the tasking of, set requirements
and priorities for, set technical requirements related to, or
modify any classification or dissemination limitations related
to the collection of, handheld or clandestine photography taken
by or on behalf or human intelligence collection
organizations.'' Although Section 435 does not give the NGA
direct authority to set technical requirements for the
collection of ``handheld or clandestine photography,'' the
Committee encourages the NGA to engage Intelligence Community
partners on these technical requirements to ensure that their
output can be incorporated into the National System for
Geospatial-Intelligence.
Section 435 does not modify the definition of ``imagery''
found in Section 467(2)(A) of Title 10, United States Code, or
alter any of the existing national security missions of the
NGA. Section 435 stresses the merits of FMV and ground-based
photography and clarifies that the NIMA Act's exclusion of
``handheld or clandestine photography taken by or on behalf of
human intelligence organizations'' from the definition of
``imagery'' does not prevent the exploitation, dissemination,
and archiving of that photography. In other words, the NGA
would still not dictate how human intelligence agencies collect
ground-based photography, have authority to modify the
classification or dissemination limitations applicable to such
photography, or manage collection requirements for such
photography. Rather, the NGA should simply avail itself of this
photography, regardless of the source, but within the security
handling guidelines consistent with the photography's
classification as determined by the collecting organization.
Section 436. Security clearances in the National Geospatial-
Intelligence Agency
Although the NSA and the NGA have much in common as
technical intelligence agencies administratively linked with
the DoD, their present authorities for handling security
clearances differ significantly. The Secretary of Defense has
delegated to the NSA authority for contracting out background
investigations and performing adjudications on individuals
doing work for the agency--both for government employees and
contractors. In contrast, the NGA must rely on the Defense
Security Service (DSS) or the Office of Personnel Management
(OPM) for background investigations and on the DIA for
adjudication. The consequences for processing times are
dramatic, particularly regarding contractor clearances.
According to information provided by the DNI's Special Security
Center, the average end-to-end processing times for contractors
in July 2005 was 73 days for NSA and 540 days for NGA. The NSA
and the NGA processing times for contractors in the first
quarter of fiscal year 2006 showed that this significant
discrepancy has continued. Moreover, the ability of the DSS to
mitigate the problem suffered a setback on April 25, 2006, when
the DSS temporarily suspended its acceptance of new contractor
security clearance applications.
The NGA's long backlog for contractor clearances is
deleterious for both the agency and the contractors that
support it. For the NGA, the backlog drives up financial costs
and makes it more difficult to compete for talent. The backlog
also distorts efficiencies and good business practices in the
private sector, as contractors adjust to the realities of
significantly different agency clearance timelines.
The Committee calls upon the DNI to follow closely the
progress made by the NGA in reducing processing times and to
monitor the variation between the processing times of other
intelligence agencies with similar requirements. The Committee
anticipates that the arrangement created by Section 436 will be
a temporary measure, pending the consistent attainment of
reduced processing times by the OPM, the DIA, and the DSS.
Subtitle D--Other Elements
Section 441. Foreign language incentive for certain non-special agent
employees of the Federal Bureau of Investigation
Section 441 authorizes the Director of the Federal Bureau
of Investigation (FBI) to pay a cash award, up to 5 percent of
basic pay, to any FBI employee who uses or maintains foreign
language skills in support of FBI analyses, investigations, or
operations to protect against international terrorism or
clandestine intelligence activities. Such awards are subject to
the joint guidance of the Attorney General and the DNI.
The Committee believes that the guidance of the Attorney
General and DNI should reward FBI employees who are using one
or more foreign languages in the regular performance of their
official duties or maintaining proficiency in an obscure
language that is of occasional operational significance. An
employee should not automatically receive a 5 percent award for
proficiency in any language. An FBI employee working in support
of the FBI's counterintelligence mission who is fluent in
French, German, or Spanish should not be eligible for a foreign
language incentive, unless that employee is using those
language skills in the regular performance of his or her
official duties. However, the joint guidance should recognize
that there are certain languages of operational significance
that are not used on a routine basis, but for which a
significant incentive should be awarded to maintain the
necessary proficiency so that the employee can use the skill
for operational purposes when the need arises. Finally, the
joint guidelines should also provide for enhanced language
incentive awards for those employees who use multiple languages
in the performance of their duties, provided that no language
incentive award can exceed the cap of 5 percent of basic pay.
Section 442. Authority to secure services by contract for the Bureau of
Intelligence and Research of the Department of State
Section 442 authorizes the Secretary of State, in certain
circumstances, to enter into personal services contracts to
support the mission of the Department's Bureau of Intelligence
and Research (INR). The authority, which is similar to that
provided to the DoD (see 10 U.S.C. 129b), will enable INR to
obtain the services of personal services contractors to respond
to unanticipated surge requirements prompted by emergent events
or crises or under unique circumstances (e.g., to provide
temporary backup that will permit full-time employees to seek
needed training). Personal services contractors, particularly
those with previous INR experience, would also be valuable to
train and mentor new INR personnel.
Section 443. Clarification of inclusion of Coast Guard and Drug
Enforcement Administration as elements of the intelligence
community
Section 443 restores, with respect to the United States
Coast Guard, the prior definition of ``intelligence community''
in the National Security Act of 1947 applicable to that
service. See 50 U.S.C. 401a. Section 1073 of the Intelligence
Reform Act modified the definition of ``intelligence
community,'' inadvertently limiting the Coast Guard's inclusion
in the Intelligence Community to the Office of Intelligence or
those portions of the Coast Guard concerned with the analysis
of intelligence. Section 444 clarifies that all of the Coast
Guard's intelligence elements are included within the
definition of ``intelligence community.''
Section 443 also codifies the joint decision of the DNI and
Attorney General to designate an office within the Drug
Enforcement Administration as an element of the Intelligence
Community.
Section 444. Clarifying amendments relating to Section 105 of the
Intelligence Authorization Act for Fiscal Year 2004
Section 444 clarifies that the establishment of the Office
of Intelligence and Analysis within the Department of the
Treasury (Section 105 of the Intelligence Authorization Act for
Fiscal Year 2004 (Pub. L. No. 108-177 (Dec. 13, 2003))), and
its reorganization within the Office of Terrorism and Financial
Intelligence (Section 222 of the Transportation, Treasury,
Independent Agencies, and General Government Appropriations
Act, 2005 (Division H, Pub. L. No. 108-447 (Dec. 8, 2004))), do
not affect the authorities and responsibilities of the DNI with
respect to the Office of Intelligence and Analysis as an
element of the Intelligence Community.
TITLE V--OTHER MATTERS
Section 501. Technical amendments to the National Security Act of 1947
Section 501 corrects several inadvertent technical
anomalies in the National Security Act of 1947 arising from the
amendments made to that Act by the Intelligence Reform Act.
Section 502. Technical clarification of certain references to Joint
Military Intelligence Program and Tactical Intelligence and
Related Activities
Section 502 makes technical clarifications to Section 102A
of the National Security Act of 1947 to preserve the
participation of the DNI in the development of the annual
budget for the Military Intelligence Program (MIP), the
successor program of the Joint Military Intelligence Program
and Tactical Intelligence and Related Activities. Section 502
also preserves the requirement for consultation by the
Secretary of the Defense with the DNI in the reprogramming or
transfer of MIP funds.
Section 503. Technical amendments to the Intelligence Reform and
Terrorism Prevention Act of 2004
Section 503 corrects a number of inadvertent technical
errors in the specified sections of the Intelligence Reform
Act.
Section 504. Technical amendments to Title 10, United States Code,
arising from enactment of the Intelligence Reform and Terrorism
Prevention Act of 2004
Section 504 corrects a number of inadvertent technical
errors in Title 10, United States Code, arising from enactment
of the Intelligence Reform Act.
Section 505. Technical amendment to the Central Intelligence Agency Act
of 1949
Section 505 amends Section 5(a)(1) of the CIA Act of 1949
by striking or updating outdated references to the National
Security Act of 1947. The Intelligence Reform Act significantly
restructured and renumbered multiple sections of the National
Security Act of 1947, leaving references in Section 5(a)(1) of
the CIA Act to provisions that no longer exist or that are no
longer pertinent.
Section 506. Technical amendments relating to the multiyear National
Intelligence Program
Section 506 updates the ``multiyear national foreign
intelligence program'' provision to incorporate and reflect
organizational and nomenclature changes made by the
Intelligence Reform Act.
Section 507. Technical amendments to the Executive Schedule
Section 507 makes several technical corrections to the
Executive Schedule. This section substitutes the ``Director of
the Central Intelligence Agency'' for the previous reference in
Executive Schedule Level II to the ``Director of Central
Intelligence.'' See 5 U.S.C. 5313. Section 507 also strikes
outdated references to Deputy Directors of Central Intelligence
from Executive Schedule Level III. See 5 U.S.C. 5314. The
provision also corrects the erroneous reference to the
``General Counsel to the National Intelligence Director'' in
Executive Schedule Level IV. See 5 U.S.C. 5315.
Section 508. Technical amendments relating to redesignation of the
National Imagery and Mapping Agency as the National Geospatial-
Intelligence Agency
Section 508 makes several technical and conforming changes
to existing law to bring these provisions in line with the
change in name of the National Imagery and Mapping Agency to
the NGA, as provided for in Section 921(b) of the National
Defense Authorization Act for Fiscal Year 2004 (Pub. L. No.
108-136 (Nov. 24, 2003)).
COMMITTEE ACTION
Motion to close
On January 10, 2007, on the motion of Chairman Rockefeller,
the Committee agreed by voice vote to close the markup because
matters under consideration at the meeting would require the
discussion of information necessary to be kept secret in the
interests of national defense or the confidential conduct of
the foreign relations of the United States. The Committee then
proceeded to discuss the bill and report in closed session.
Motion to report committee bill favorably
On January 17, 2007, on the continuation of the markup in
closed session and a quorum for reporting being present, the
Committee voted to report the bill favorably by a vote of 12
ayes and 3 noes. The votes in person or by proxy were as
follows: Chairman Rockefeller--aye; Senator Feinstein--aye;
Senator Wyden--aye; Senator Bayh--aye; Senator Mikulski--aye;
Senator Feingold--aye; Senator Nelson--aye; Senator
Whitehouse--aye; Vice Chairman Bond--aye; Senator Warner--aye;
Senator Hagel--aye; Senator Chambliss--no; Senator Hatch--no;
Senator Snowe--aye; Senator Burr--no.
ESTIMATE OF COSTS
Pursuant to paragraph 11(a)(3) of rule XXVI of the Standing
Rules of the Senate, the Committee deems it impractical to
include an estimate of the costs incurred in carrying out the
provisions of this report due to the classified nature of the
operations conducted pursuant to this legislation. On January
18, 2007, the Committee transmitted this bill to the
Congressional Budget Office and requested it to conduct an
estimate of the costs incurred in carrying out its provisions.
EVALUATION OF REGULATORY IMPACT
In accordance with paragraph 11(b) of rule XXVI of the
Standing Rules of the Senate, the Committee finds that no
substantial regulatory impact will be incurred by implementing
the provisions of this legislation.
CHANGES IN EXISTING LAWS
In the opinion of the Committee, it is necessary to
dispense with the requirements of paragraph 12 of rule XXVI of
the Standing Rules of the Senate in order to expedite the
business of the Senate.
ADDITIONAL VIEWS OF SENATORS WYDEN AND FEINGOLD
We are pleased that the Committee has chosen to continue to
push the Intelligence Authorization Act for Fiscal Year 2007
toward passage. This is a critically important piece of
national security legislation, and the fact that our
intelligence agencies have operated without authorizing
legislation for two years represents an unfortunate failure of
Congressional oversight.
The intelligence authorization bill is Congress' primary
vehicle for exercising oversight of our national intelligence
community. This bill addresses and legislates in many areas of
national security law, in addition to authorizing the
classified budget for the various intelligence agencies. We are
particularly pleased with provisions that strengthen oversight
by further clarifying sections of law relating to Congressional
notification of intelligence activities.
There are a few sections of the bill that merit further
examination and debate before they should be passed into law.
In particular, section 310 of the bill creates new exemptions
to the Privacy Act, with the purpose of improving information
access. The potential effects of this section have not been
fully explored, and the provision's impact on both privacy and
on information sharing needs to be examined further.
Those sections of the bill granting new arrest authorities
to NSA and CIA security personnel also merit further
discussion. It is important that these individuals have all the
authority that they need in order to do their jobs, but the
language in the bill may be broader than necessary, and the
Executive Branch has not yet explained sufficiently why new
authorities are necessary.
We recognize that this bill is very important and long
overdue, and support the Committee's decision to report it. We
look forward to addressing our remaining concerns in conference
with the House of Representatives.
Ron Wyden.
Russell D. Feingold.
ADDITIONAL VIEWS OF SENATOR WARNER
The annual intelligence authorization bill is vital
legislation that authorizes the Intelligence Community's
efforts against national security threats such as terrorism,
proliferation, and rogue states. It also provides legislative
tools and strategic guidance to reform the Intelligence
Community and to support and enhance its capabilities to
protect the United States, its interests, and its allies. At
the time of the Committee's establishment in 1976, the
authorization bill was considered to be the Committee's most
effective means to ensure that the will of Congress be observed
by the Intelligence Community. Indeed, the authorization bill
was considered so important for oversight that the resolution
creating the Committee stated that ``apart from continuing
resolutions, no funds shall be appropriated for intelligence
activities unless previously authorized by a bill that has
passed the Senate.'' It is for these reasons that I decided to
support the Intelligence Authorization Act for Fiscal Year
2007, despite misgivings I share with some of my colleagues
about Section 304 of the bill.
There is a history of cooperation and compromise between
the Congress and the President on the oversight of intelligence
activities, particularly with respect to sharing with Congress
sensitive information regarding intelligence sources and
methods. While briefings to all members and staff may be the
preferred method of notification of intelligence activities,
the congressional intelligence committees have historically
acquiesced to requests by the Executive branch to limit access
on particularly sensitive matters to the Chairman and Vice
Chairman. I support such limited notification when absolutely
necessary.
In seeking to amend the National Security Act of 1947 to
force the Executive Branch to disclose certain intelligence
activities to the full membership of the Senate and House
intelligence committees, Section 304 attempts to strip the
Executive of authorities specifically recognized by the
National Security Act itself. The National Security Act
provides that information be shared ``with due regard for the
protection from unauthorized disclosure of classified
information relating to sensitive intelligence sources or
methods or other exceptionally sensitive matters.'' This allows
the Executive, in certain exceptional circumstances, to limit
this information to the leadership of the Senate and House
intelligence committees.
Rather than ensure that Members receive the information
they are seeking, Section 304 could instead merely provoke a
stalemate as the Executive branch challenges the bill as
usurping Presidential authorities. My foremost concern is the
prospect that the President could veto this legislation,
thereby jeopardizing many other important provisions,
particularly in the area of intelligence reform.
Those reform provisions, in large part, are why I chose to
support this bill, notwithstanding Section 304. In particular,
Section 403 of the bill enhances the authority of the Director
of National Intelligence (DNI) to manage access to human
intelligence information, one of the most important areas for
intelligence reform.
Numerous commissions, and the Senate Select Committee on
Intelligence's own reports on the 9/11 and Iraq Weapons of Mass
Destruction intelligence failures, have noted that excessive
compartmentation of human intelligence has contributed to
several recent intelligence failures. For example, the
Committee's Iraq WMD report found that in the years before
Operation Iraqi Freedom, the CIA protected its Iraq weapons of
mass destruction sources so well that some of the information
collected was kept from the majority of analysts with a
legitimate need to know. In a number of cases, CIA analysts
were provided with sensitive information that was not made
available to analysts who worked the same issues at other all-
source analysis agencies. Despite these and other findings,
little has been done to meaningfully improve this situation.
CIA testimony to the Committee and its staff indicate that the
agency has no intention of sharing this ``sensitive''
information on a wider basis, particularly with analysts
outside the CIA.
Section 403 gives the DNI tools to correct this situation
by providing him the authority to ensure the dissemination of
intelligence information collected through human intelligence,
including the underlying operational data necessary to fully
understand that reporting, to appropriately cleared analysts or
other intelligence officers throughout the Intelligence
Community. The provision makes the DNI a neutral arbiter in
making decisions about which analysts in the Intelligence
Community have a need to know the information. It also makes
him responsible for determining whether the risks of expanding
access to cleared analysts are truly greater than the risks of
keeping information so tightly compartmented that the analysts
who need it to make informed judgements are kept in the dark.
Currently the process by which the Intelligence Community
calculates the benefits and risks of sharing sensitive human
intelligence remains too heavily skewed toward withholding
information. Provision 403 will give the DNI the authority, but
also the responsibility, to ensure that this calculation takes
into account the terrible costs to national security when
information is too heavily compartmented. This provision is a
necessary step in the right direction toward improving human
intelligence, information sharing, and analysis.
John Warner.
ADDITIONAL VIEWS OF SENATOR HATCH
The intelligence authorization process provides the
essential mechanism by which the intelligence committees of the
United States Congress provide direction and support to the
Intelligence Community, in fulfillment of our statutory duty to
provide oversight. I am pleased that the Committee is committed
to reporting our annual legislation, as the failure to do so
undermines our relevancy and fails the public's expectation of
meaningful congressional oversight. Such authorizing
legislation provides the central vehicle by which the Senate
Select Committee on Intelligence authorizes expenditures and
directs ongoing reform of the Intelligence Community, the need
for which has been exposed in several Committee investigations
since September 11, 2001, to include the Joint Inquiry Into the
Terrorist Attacks of September 11, 2001 (released December,
2002) and, more recently, the Committee report on the U.S.
Intelligence Community's Prewar Intelligence Assessments on
Iraq (released July, 2004). Related to this continuing focus on
reform, I note Section 403's requirement of the DNI to expand
access to human intelligence in the Intelligence Community.
Such initiatives included in our authorization vehicle
demonstrate the active role this oversight Committee must
maintain.
Other provisions in the bill create, in my opinion,
unnecessary conflict with Executive prerogatives long-
established on questions of access to particular notifications.
For example, I refer the reader to the Vice Chairman's well-
reasoned Additional Views on Section 304. But that is not the
reason I have chosen to vote against this authorization. That
reason is explained in the classified annex accompanying our
report.
Orrin G. Hatch.
SUPPLEMENTAL VIEWS OF VICE CHAIRMAN BOND AND SENATORS WARNER,
CHAMBLISS, AND BURR
The most important means that the Senate Select Committee
on Intelligence has for conducting effective oversight of the
Intelligence Community is the annual intelligence authorization
bill. As soon as the Republican Leader announced my appointment
to be the Vice Chairman of the Committee for the 110th
Congress, I sent a letter to then-Vice Chairman Rockefeller
identifying the priorities upon which I believed the Committee
should focus in the immediate future. At the top of my list was
passing the Intelligence Authorization Act for Fiscal Year 2007
(last year's bill) because I believed that the need to pass an
authorization bill overrode my immediate concern with a few of
the bill's onerous provisions. I was happy to learn that
Chairman Rockefeller was in complete agreement with me on this
priority to pass our bill.
Chairman Rockefeller and I also agreed that the fastest way
to return the bill to the Senate legislative calendar would be
to adopt last year's bill, without amendment, as the Chairman/
Vice Chairman mark. This approach resulted in a bill, report,
and classified annex that were nearly identical to those that
were passed out of the Committee last year, with only slight
changes made necessary to update the text. The Committee's bill
contains 62 substantive provisions. Most of these provisions
are based upon, or derived from, the proposed bills submitted
by the Executive branch for Fiscal Years 2006 and 2007. They
contain important enhancements to Intelligence Community
authorities and operational needs.
Notwithstanding these enhancements, there are two
provisions, namely Sections 304 and 314, that I and some of my
Republican colleagues voted against last year because we did
not believe that they advanced the goal of Congressional
oversight. Under current law, the Executive branch may exercise
its discretion to protect sensitive intelligence sources and
methods when notifying the Congressional Intelligence
Committees about its intelligence activities and covert
actions. In sharp contrast to the National Security Act of
1947, Section 304 imposes new requirements when the Executive
branch determines that disclosure to less than the full
membership of the Committees is appropriate. According to
Section 304, in those cases the Executive branch must notify
all members of the Congressional Intelligence Committees and
provide them with a written summary of the activity, sufficient
to permit the Members to assess the legality, benefits, costs,
and advisability of such activities. Although we believe in
comprehensive oversight, we also believe in working in comity
with the Administration regarding the President's
constitutional authority concerning what extremely sensitive
details he determines to disclose from extremely sensitive
programs. We believe there are other ways to ensure effective
oversight of such programs without enshrining this provision in
statute.
The interpretation of these requirements will likely only
increase the tension between the Executive and Legislative
branches over information access. The President has the
constitutional responsibility to ensure the protection of
sensitive intelligence sources and methods.
Compartmentalization is one key means at his disposal to ensure
that this important responsibility is met. Ultimately, Section
304 cannot resolve these conflicting concerns, because each
branch will likely interpret the notice and written summary
requirements to the detriment of the other. Either Congress
will complain about the lack of detail provided in the required
summaries or the President will argue that he had to provide
the very detail that guided his initial decision to limit
disclosure in the first place. Moreover, while there is
substantial judicial authority for the breadth of Presidential
powers in foreign affairs under Article II of the Constitution,
it is unlikely that this conflict between the Executive and
Legislative branches can be resolved by the courts, because it
presents a political question that the courts may well refuse
to address. That is why we believe this issue is best reserved
for a separate discussion that should not jeopardize our entire
Bill with the provision's inclusion here.
Additionally, Section 314 requires the Director of National
Intelligence to submit a classified report to the Members of
the Congressional Intelligence Committees which gives a full
accounting of any clandestine prison or detention facility
currently or formerly operated (to include locational data) by
the United States government. The Executive branch has met its
obligations to keep the Committee fully and currently informed
about these clandestine detention facilities by briefing all of
the Committee Members on the program. (The President publicly
announced the existence of these facilities in September 2006.)
The Section 314 report creates another unnecessary source of
conflict between the Executive and Legislative branches. The
level of detail required by the report, to include all
locations of current and formerly operated sites, is simply not
necessary for effective oversight, and will likely be resisted
by the Executive branch. Moreover, such disclosure to Congress
could have a negative impact on current and future
relationships with certain allied foreign intelligence services
and governments who have cooperated in this program with the
understanding that their assistance would remain completely
confidential. This backward looking provision continues a
misguided practice of retroactive oversight.
Neither Section 304 nor Section 314 will advance the
Committee's goal of providing meaningful oversight to the
activities of the Intelligence Community. By creating
unnecessary conflicts between the Legislative and Executive
branches, these provisions will only distract the Committee and
the Intelligence Community from focusing on other important
matters. We therefore look forward to working with members on
the floor and in conference to lessen likely conflicts with the
Executive branch that could endanger the enactment of this bill
into law.
Senator Warner joins in these supplemental views, except as
they pertain to the discussion of Section 314.
Christopher S. Bond.
John Warner.
Saxby Chambliss.
Richard Burr.
.
