[Congressional Record: May 27, 2010 (House)] [Page H4025-H4064] {time} 1745 NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 2011--Continued Amendment No. 42 Offered by Ms. Eshoo The Acting CHAIR. It is now in order to consider amendment No. 42 printed in House Report 111-498. Ms. ESHOO. Mr. Chairman, I have an amendment at the desk. The Acting CHAIR. The Clerk will designate the amendment. The text of the amendment is as follows: Amendment No. 42 offered by Mr. Eshoo: At the end of subtitle C of title IX, add the following new section: SEC. 923. AUDITS OF INTELLIGENCE COMMUNITY BY GOVERNMENT ACCOUNTABILITY OFFICE. (a) Audits.--Title V of the National Security Act of 1947 (50 U.S.C. 413 et seq.) is amended by adding at the end the following new section: ``audits of intelligence community by government accountability office ``Sec. 508. (a) In General.--Except as provided in subsection (b), the Director of National Intelligence shall ensure that personnel of the Government Accountability Office designated by the Comptroller General are provided with access to all information in the possession of an element of the intelligence community that the Comptroller General determines is necessary for such personnel to conduct an analysis, evaluation, or investigation of a program or activity of an element of the intelligence community that is requested by one of the congressional intelligence committees. ``(b) Audits of Programs Involving Sources and Methods.-- (1) If the Director of National Intelligence determines that a portion of an analysis, evaluation, or investigation to be conducted by the Comptroller General that is requested by a committee of Congress with jurisdiction over the subject of such analysis, evaluation, or investigation involves a matter that is subject to the reporting requirements of section 503 or intelligence sources or methods, such portion may be redacted from such analysis, evaluation, or investigation and provided exclusively to the congressional intelligence committees. ``(2) If the Director of National Intelligence redacts a portion of an analysis, evaluation, or investigation under paragraph (1), the Director shall inform the committee of Congress that requested such analysis, evaluation, or investigation of the redaction. [[Page H4033]] ``(c) Notice of Analysis, Evaluation, or Investigation and Procedures.--Not later than 15 days before initiating an analysis, evaluation, or investigation of an element of the intelligence community, the Comptroller General shall submit to the congressional intelligence committees a notice that includes-- ``(1) a description of the analysis, evaluation, or investigation to occur and the purposes of such analysis, evaluation, or investigation; ``(2) the names of the personnel who will conduct such analysis, evaluation, or investigation and the level of security clearance possessed by such personnel; and ``(3) the procedures to be used in the course of such analysis, evaluation, or investigation for examining classified information, including a description of all facilities and materials that will be used. ``(d) Discussion of Procedures.--(1) Prior to initiating an analysis, evaluation, or investigation of an element of the intelligence community, the Comptroller General, in consultation with the congressional intelligence committees, shall discuss with the Director of National Intelligence the procedures for conducting such analysis, evaluation, or investigation. ``(2) Not later than five days after the discussion referred to in paragraph (1), the Director of National Intelligence may submit to the Comptroller General a written comment suggesting any changes or modifications to the procedures referred to in paragraph (1). ``(e) Confidentiality.--The Comptroller General shall maintain the same level of confidentiality for a record made available during the course of an analysis, evaluation, or investigation involving sources or methods as is required of the head of the element of the intelligence community from which such record is obtained. An officer or employee of the Government Accountability Office shall be subject to the same statutory penalties for unauthorized disclosure or use of a record as an officer or employee of the element of the intelligence community that provided the Comptroller General or such officer or employee of the Government Accountability Office with access to such record. ``(f) Workpapers.--All workpapers of the Comptroller General and all records and property of any element of the intelligence community that the Comptroller General uses during the course of an analysis, evaluation, or investigation involving sources or methods shall remain in facilities provided by the element of the intelligence community providing such records and property. ``(g) Provision of Supplies.--The head of each element of the intelligence community that is a subject of an analysis, evaluation, or investigation by the Comptroller General involving sources or methods shall provide the Comptroller General with suitable and secure offices and furniture, telephones, and access to copying facilities, for purposes of such analysis, evaluation, or investigation. ``(h) Procedures for Protection of Information.--The Comptroller General, in consultation with the congressional intelligence committees, shall establish procedures to protect from unauthorized disclosure all classified and other sensitive information furnished to the Comptroller General in the course of conducting an analysis, evaluation, or investigation involving sources and methods. ``(i) Submission of Names of Personnel Conducting Analysis, Evaluation, or Investigation.--Prior to initiating an analysis, evaluation, or investigation involving sources and methods, the Comptroller General shall provide the Director of National Intelligence and the head of each element of the intelligence community that is a subject of such analysis, evaluation, or investigation with the name of each officer and employee of the Government Accountability Office who has obtained appropriate security clearance and to whom, upon proper identification, the head of such element shall make available records and information during the course of such analysis, evaluation, or investigation. ``(j) Cooperation.--The head of each element of the intelligence community that is a subject of an analysis, evaluation, or investigation shall cooperate fully with the Comptroller General and provide timely responses to requests by the Comptroller General for documentation and information made pursuant to this section. ``(k) Rule of Construction.--Except as provided in subsection (b), nothing in this section or any other provision of law shall be construed to restrict or limit the authority of the Comptroller General to audit, evaluate, or obtain access to the records of an element of the intelligence community absent specific statutory language restricting or limiting such audits, evaluations, or access to records.''. The Acting CHAIR. Pursuant to House Resolution 1404, the gentlewoman from California (Ms. Eshoo) and a Member opposed each will control 5 minutes. The Chair recognizes the gentlewoman from California. Ms. ESHOO. Mr. Chairman, I rise to offer my amendment No. 42 to this National Defense Authorization Act. Mr. Chairman, what brings me to the floor is something that I think should concern every single Member of the House. We all know that our number one obligation as Members of Congress is to secure our country. And as a member of the House Intelligence Committee, it matters not Republican or Democrat, we stand shoulder to shoulder. We may debate different things. We all know, and the full House knows, that this is our first and top obligation. In order to carry that obligation out, that duty done well, as a member of the House Intelligence Committee we must do effective oversight. We have to do investigations. It is the way we do our work. The reason I offer this amendment is because, unlike all the rest of the committees of the House who can use the GAO, dispatch the Government Accountability Office into the executive branch to make the kinds of determinations on financial issues, financial management, personnel, acquisitions, information technology, whatever it might be, the House Intelligence Committee is not allowed to do that. And in attempting to do it, it has drawn the ire of the administration. Now, I am a Democrat. We have a Democratic administration. I think the administration is ill-advised in this. These are the prerogatives of the Congress and the jurisdictions of our committees. I think that we need to be able to have the tools that the GAO has, with all of the safeguards in place relative to sources and methods and those things that are the most sensitive in the intelligence community. But I don't believe that the executive branch should be telling the legislative branch what tools we should have and to make that decision for us. That speaks to the separation of powers, and it also speaks to what we, as Members of Congress, in terms of our duty have to carry out and to do. So my amendment really corrects this flaw, and I think it's an important provision that would restore the GAO's role in congressional oversight. I don't think this is a question of whether the information is too sensitive for the GAO. They have the security clearances. They have dealt with things before, and nothing has ever happened. So as I said, I believe this issue goes directly to the heart of one of the most important functions of the Congress, and that is effective oversight. That's what this amendment is about. I want to thank, in particular, Chairman Howard Berman for his work on this issue from the House Foreign Affairs Committee, and also my colleagues from the House Intelligence Committee who are sponsoring this amendment: Congressman Holt, Congressman Tierney of Massachusetts, Congressman Thompson of California, and Congresswoman Schakowsky of Illinois. I rise to offer my amendment #42, to the FY2011 National Defense Authorization Act. This Amendment would require the Director of National Intelligence to cooperate with GAO inquiries initiated by committees of jurisdiction. Oversight of matters in the intelligence community--including financial management, personnel systems, acquisitions, and information technology--is a fundamental prerogative of Congress. GAO plays a critical role helping committees examine the functions of government agencies in an objective, thorough manner. But despite this expertise, the intelligence community refuses to allow GAO in the door, even when the intelligence committees--the committees that have jurisdiction over them--have asked them to investigate. The Administration has even threatened to veto the Intelligence Authorization Bill because it contained a provision that would restore GAO's role in Congressional oversight. The co-sponsors of this amendment have joined me in rejecting the Administration's flawed legal analysis that would exempt the intelligence community from GAO's review--even though they review every other federal agency. This is not a question of whether the information is too sensitive for GAO. GAO has evaluated a number of national security programs, including ones that have sensitive intelligence implications like Intelligence Surveillance and Reconnaissance programs which are known as ISR platforms. GAO has issued classified reports on the Iraq war and parts of the Comprehensive National Cybersecurity Initiative. Their personnel have the appropriate security clearances and they know how to safeguard sensitive information. In an abundance of caution, the amendment lays out additional safeguards that GAO must follow to be able to have access to our nation's intelligence information. [[Page H4034]] I believe this issue is one that goes directly to the heart of one of the most important functions of the Congress, and that is oversight. This also goes to the very core of the principle of Separation of Powers. My amendment would make clear to the intelligence community that they cannot bar the door to Congressional oversight, and it is Congress, not the Executive branch that determines which tools we get to use. In particular, I'd like to thank Chairman Berman of the House Foreign Affairs Committee and HPSCI members Representatives Holt, Tierney, Thompson of California, and Schakowsky for co-sponsoring this amendment. I urge the adoption of the amendment. At this point I would like to yield to Mr. Berman, my trusted and distinguished colleague from California. The Acting CHAIR. The gentleman is recognized for the 1\1/2\ minutes remaining in favor of the amendment. Mr. BERMAN. Mr. Chairman, the Eshoo amendment cuts right to the heart of our constitutional authority: Congressional oversight of matters, in this case, within the intelligence community--basic functions, financial management, acquisitions, information technology--a fundamental prerogative of this body, a prerogative that should not be limited to the intelligence committees. Bottom line, GAO plays a critical role in helping the committees examine day-to-day functions of government agencies within their jurisdiction, and its expertise needs to be brought to bear on the intelligence community. This is particularly true after the 2004 reforms that established the ODNI. There is no community that has undergone more bureaucratic overhaul and tumult, any agency within the Federal Government, than within the intelligence community. The notion that committees of appropriate jurisdiction are blocked from investigating areas within their domain for oversight purposes, having nothing to do--we clearly exempt the sources and methods issues from this oversight--makes no sense. It is an insult to the prerogatives of the Congress. And to the extent that the administration argues this should be solely within their prerogative, they don't fully understand our institutional role in Congress. I don't understand how anyone in this body who is interested in dealing with waste, with fraud, with duplication would want to limit the GAO's authority to go into appropriate areas within the intelligence community. I urge an ``aye'' vote. {time} 1830 Mr. THORNBERRY. Mr. Chairman, I seek the time in opposition. The Acting CHAIR. The gentleman from Texas is recognized for 5 minutes. Mr. THORNBERRY. Mr. Chairman, I think the first and probably most important point to make on this amendment is that it does not belong on this bill and it imperils the whole bill. This issue about whether to expand GAO's authority to be able to investigate the intelligence community, which has been an issue in the fiscal year 2010 intelligence authorization bill, has been the subject of veto threats from the administration and is one of, if not the reason, here 4 months before the end of the fiscal year we still do not have an intelligence authorization bill. So it does not belong here. This is the DOD authorization bill. It is being discussed in another forum where it should, the intelligence authorization bill, and if it gets added to the DOD authorization bill, it puts in danger this entire bill because just today, the administration sent another email which confirmed the veto threat over this provision. So however Members feel about the particular issue one way or another, I would suggest that you ought to be very careful about endangering the whole bill over this provision. Second point I'd make is this is not a change to be taken lightly. As the gentlelady, my colleague on the Intelligence Committee mentioned, the GAO has not had this power, authority before since the modern intelligence community has existed. Congress after Congress of both parties, President after President of both parties have rejected this, I would suggest, for some very good reasons. So this is not a step to be taken lightly. I think the only argument one can make is that the current intelligence committees are incapable of performing their oversight responsibilities and therefore they have to get this other entity, GAO, in to help them do that. I don't agree with that position. I think the intelligence committees in the House and the Senate are capable of performing their job. Now, I get frustrated. I don't agree with everything that the majority chooses to do, but I believe that the committee is perfectly capable of oversight of the intelligence community as we were tasked to do in the House rules and by statute. These committees were created in the 1970s to fill a very unique role, and to undermine them by saying they are incapable of performing their job which, without bringing GAO and investigators and so forth, I think is a mistake. I also believe, Mr. Chairman, that this amendment may undermine the role of the DNI at a time that is very sensitive for the role of the DNI. Because if you look at the amendment itself, it says the Comptroller General decides what he needs access to, has control over how these investigations will be conducted. Now, the amendment says that you can have discussions with the DNI, but the decision is with the Comptroller General, further undermining the DNI's control over classified material. I think that's a mistake. There are other flaws, in my view, in this amendment. But the bottom line is it undermines the bill. It does not belong here. And it is a step that previous Congresses, previous Presidents have not chosen to take because of the sensitivity of the material and the unique role that the select committees on intelligence play. Therefore, I hope my colleagues on both sides of the aisle will reject this amendment. I urge them to do so. I yield back the balance of my time. The Acting CHAIR. All time for debate on the amendment has expired. Mr. ANDREWS. Is it in order to propound a unanimous consent request at this point? The Acting CHAIR. Any request to extend time must be congruent on both sides. Mr. ANDREWS. I would make a unanimous consent request to extend for each side 1 minute. The Acting CHAIR. Is there objection to the request of the gentleman from New Jersey? There was no objection. Mr. ANDREWS. I would yield 1 minute to the Speaker of the House, the gentlewoman from California (Ms. Pelosi). Ms. PELOSI. I thank the gentleman for yielding and his leadership on this important bill before us. I commend Congresswoman Eshoo for her attention to this important matter, her leadership in bringing this amendment to the floor. Mr. Chairman, as you all know, protecting American people is our first responsibility. Their security is what we take an oath to uphold, protect, and defend. In order to do that, we recognize the importance of intelligence gathering to preventing violence and to protecting the American people, especially in this age when we're fighting terrorism at home and abroad. The issue before us is if the responsibilities of Congress can be honored without the knowledge that we are entitled to. This is a very important issue. We all recognize, as the gentleman said, the importance of having information be kept secret when it's in our national security interest to do so. Not to overdo that to the extent of having Congress not have the information it needs to do its job of proper oversight to protect the American people. We are preventing harm. And if we're going to prevent harm, we have to have information to do so. And the members of the Intelligence Committee have a responsibility to hold that information close. This doesn't apply to every piece of information of intelligence that comes to the committee, but it does say that the GAO has a proven track record of conducting thorough and professional investigations. Their work has informed the Congress and led to significant changes that have enhanced our government's effectiveness. GAO staff are professionals who protect information held by the intelligence community. A vote for this amendment is a vote for enhancing intelligence oversight. It is a vote for Congress. [[Page H4035]] I urge our colleagues to support the Eshoo amendment. Mr. THORNBERRY. Mr. Chairman, I certainly agree with the distinguished Speaker about the importance of our role in national security and the importance of Congress' role in overseeing the intelligence community. I agree that national security is the first job of the Federal Government. I also agree with both the gentleladies from California that oversight can be improved from the Congress. As a matter of fact, I've had legislation, which has not been allowed to be voted on the floor, to make clear the notification requirements and statute about what any administration must notify Congress about, the information it must give us. I'd also have to point out that the 9/11 Commission made a number of very important recommendations on how we can improve oversight in this Congress. Unfortunately, that have not been adopted. Now, they adopted a kind of a hybrid panel of the Appropriations Committee, but that was not at all what the 9/11 Commission, the WMD Commission recommend we do to improve oversight. I think we should focus on making our committees of oversight more effective rather than bringing in this other entity, the General Accounting Office, that has historically never had a role with the intelligence community, and that the President says he will veto the bill over if we allow it to happen. Let's look at ourselves, improve ourselves first before we start bringing in others. Mr. TOWNS. Mr. Chair, as Chairman of the Oversight and Government Reform Committee, I support the amendment offered by Ms. Eshoo because it will strengthen government accountability and enhance critical oversight of the intelligence community. The amendment provides necessary clarification regarding the authority of the General Accountability Office, GAO, to receive information from the intelligence community. Congress relies on the GAO as a force multiplier in carrying out the investigative and oversight functions vested in the Legislative Branch. The GAO helps inform the Congress and all Executive agencies about areas and programs within the federal government that are performing well, and those that need to be improved or are vulnerable to waste, fraud, and abuse. This amendment will allow GAO to carry out these vital functions without unwarranted interference from intelligence community agencies. As Acting Comptroller General Gene Dodaro previously noted, this authority does not represent an overhaul of existing oversight mechanisms for the intelligence community. Instead, ``The proposed legislative provisions in essence reaffirm GAO's existing authority in order to address the lack of cooperation GAO has received from certain elements of the IC [intelligence community] in carrying out work at the specific request of the intelligence committees, and other committees of jurisdiction as defined by the rules of the Senate and House.'' The intelligence community will function more effectively, and better protect the security of this country if this amendment is adopted. Despite my strong support for the amendment and its important goals, I should note my concern with the way in which the amendment is drafted. This provision should clearly identify the authority of any committee of Congress with jurisdiction over the identified subject to request evaluation or analysis of an intelligence community component, not only the congressional intelligence committees, except in the case of matters concerning intelligence sources and methods. I thank Ms. Eshoo and the other sponsors of this important amendment for bringing it before the House, and I urge all Members to support it. Mr. THORNBERRY. I yield back the balance of my time. The Acting CHAIR. The question is on the amendment offered by the gentlewoman from California (Ms. Eshoo). The question was taken; and the Acting Chair announced that the ayes appeared to have it. Mr. THORNBERRY. Mr. Chair, I demand a recorded vote. The Acting CHAIR. Pursuant to clause 6 of rule XVIII, further proceedings on the amendment offered by the gentlewoman from California will be postponed. [...] Amendment No. 42 Offered by Ms. Eshoo The Acting CHAIR. The unfinished business is the demand for a recorded vote on the amendment offered by the gentlewoman from California (Ms. Eshoo) on which further proceedings were postponed and on which the ayes prevailed by voice vote. The Clerk will redesignate the amendment. The Clerk redesignated the amendment. Recorded Vote The Acting CHAIR. A recorded vote has been demanded. A recorded vote was ordered. The Acting CHAIR. This is a 5-minute vote. The vote was taken by electronic device, and there were--ayes 218, noes 210, not voting 10, as follows: [Roll No. 315] AYES--218 Ackerman Aderholt Adler (NJ) Andrews Arcuri Baird Baldwin Barrow Bartlett Barton (TX) Becerra Berkley Berman Berry Bishop (GA) Bishop (NY) Blumenauer Bordallo Boswell Boucher Boyd Brady (PA) Braley (IA) Bright Brown, Corrine Butterfield Capps Capuano Cardoza Carnahan Carson (IN) Castor (FL) Chandler Christensen Chu Clarke Clyburn Cohen Connolly (VA) Conyers Costa Courtney Critz Crowley Cuellar Cummings Davis (CA) Davis (IL) Davis (TN) DeFazio DeGette Delahunt DeLauro Deutch Dingell Doggett Doyle Driehaus Duncan Edwards (MD) Ehlers Ellison Engel Eshoo Faleomavaega Farr Fattah Foster Frank (MA) Fudge Garamendi Giffords Gordon (TN) Grayson Green, Al Hall (NY) Hare Harman Heinrich Herseth Sandlin Higgins Hinchey Hirono Hodes Holden Holt Honda Hoyer Inslee Israel Jackson (IL) Jackson Lee (TX) Johnson (GA) Johnson, E. B. Jones Kagen Kanjorski Kaptur Kennedy Kildee Kilpatrick (MI) Kilroy Kind Kingston Kirkpatrick (AZ) Kissell Klein (FL) Kosmas Kratovil Kucinich Langevin Larsen (WA) Larson (CT) Lee (CA) Levin Lewis (GA) Loebsack Lofgren, Zoe Lowey Lynch Maffei Maloney Markey (CO) Markey (MA) Matheson Matsui McCarthy (NY) McClintock McCollum McDermott McGovern McNerney Meek (FL) Meeks (NY) Michaud Miller (NC) Miller, George Mitchell Mollohan Moore (KS) Moore (WI) Moran (VA) Murphy (CT) Murphy (NY) Nadler (NY) Napolitano Neal (MA) Norton Nye Oberstar Obey Olver Pallone Pascrell Paul Payne Pelosi Perlmutter Peters Petri Pingree (ME) Platts Polis (CO) Pomeroy Price (NC) Quigley Rangel Richardson Rodriguez Rohrabacher Rothman (NJ) Ruppersberger Rush Ryan (OH) Sanchez, Linda T. Sanchez, Loretta Sarbanes Schakowsky Schauer Schiff Schrader Schwartz Scott (GA) Scott (VA) Serrano Sestak Shea-Porter Sherman Shuler Slaughter Smith (WA) Space Speier Spratt Stark Stupak Sutton Tanner Thompson (CA) Thompson (MS) Tierney Titus Tonko Towns Tsongas Van Hollen Velazquez Walz Wasserman Schultz Waters Watson Waxman Weiner Welch Wilson (OH) Woolsey Wu Yarmuth NOES--210 Akin Alexander Altmire Austria Baca Bachmann Bachus Barrett (SC) Bean Biggert Bilbray Bilirakis Bishop (UT) Blackburn Blunt Boccieri Boehner Bonner Bono Mack Boozman Boustany Brady (TX) Broun (GA) Brown (SC) Buchanan Burgess Burton (IN) Buyer Calvert Camp Campbell Cantor Cao Capito Carney Carter Cassidy Castle Chaffetz Childers Clay Cleaver Coble Coffman (CO) Cole Conaway Cooper Costello Crenshaw Culberson Dahlkemper Dent Diaz-Balart, L. Diaz-Balart, M. Dicks Djou Donnelly (IN) Dreier Edwards (TX) Ellsworth Emerson Etheridge Fallin Filner Flake Fleming Forbes Fortenberry Foxx Franks (AZ) Frelinghuysen Gallegly Garrett (NJ) Gerlach Gingrey (GA) Gohmert Gonzalez Goodlatte Granger Green, Gene Griffith Grijalva Guthrie Gutierrez Hall (TX) Halvorson Harper Hastings (WA) Heller Hensarling Herger Hill Himes Hinojosa Hoekstra Hunter Inglis Issa Jenkins [[Page H4062]] Johnson (IL) Johnson, Sam Jordan (OH) King (IA) King (NY) Kirk Kline (MN) Lamborn Lance Latham LaTourette Latta Lee (NY) Lewis (CA) Linder Lipinski LoBiondo Lucas Luetkemeyer Lujan Lummis Lungren, Daniel E. Mack Manzullo Marchant Marshall McCarthy (CA) McCaul McCotter McHenry McIntyre McKeon McMahon McMorris Rodgers Mica Miller (FL) Miller (MI) Miller, Gary Minnick Moran (KS) Murphy, Patrick Murphy, Tim Myrick Neugebauer Nunes Olson Ortiz Owens Pastor (AZ) Paulsen Pence Perriello Peterson Pitts Poe (TX) Posey Price (GA) Putnam Radanovich Rahall Rehberg Reichert Reyes Roe (TN) Rogers (AL) Rogers (KY) Rogers (MI) Rooney Ros-Lehtinen Roskam Ross Roybal-Allard Royce Salazar Scalise Schmidt Schock Sensenbrenner Sessions Shadegg Shimkus Shuster Simpson Sires Skelton Smith (NE) Smith (NJ) Smith (TX) Snyder Stearns Sullivan Taylor Teague Terry Thompson (PA) Thornberry Tiahrt Tiberi Turner Upton Visclosky Walden Wamp Watt Westmoreland Whitfield Wilson (SC) Wittman Wolf Young (AK) Young (FL) NOT VOTING--10 Boren Brown-Waite, Ginny Davis (AL) Davis (KY) Graves Hastings (FL) Melancon Pierluisi Ryan (WI) Sablan Announcement by the Acting Chair The Acting CHAIR (during the vote). There are 2 minutes remaining in this vote. {time} 2134 Messrs. LEWIS of California, CLEAVER, BOCCIERI, and DICKS changed their vote from ``aye'' to ``no.'' Messrs. MOLLOHAN and CAPUANO changed their vote from ``no'' to ``aye.'' So the amendment was agreed to. The result of the vote was announced as above recorded.