[Congressional Record Volume 164, Number 15 (Monday, January 22, 2018)]
[Senate]
[Pages S430-S437]
[...]
Section 148
Mr. BURR. Mr. President, the U.S. Senate has just done the right
thing. In a matter of hours, hopefully, the decision to fund the
government and to put people back to work will find its way to the
House of Representatives. I am sure that it will find a quick agreement
there, and tomorrow everyone will be back in place, and both the House
and the Senate can work aggressively between now and February 8 to make
sure that this doesn't happen again and that we bring permanency and
certainty to the funding.
[[Page S434]]
The vice chairman of the Intelligence Committee and I were notified
when the House CR appeared that there was language in it that was
different than in the past. The language in section 148 of the CR is of
concern to the Intelligence Committee. Let me just read the language:
Sec. 148. Funds appropriated by the Department of Defense
Missile Defeat and Defense Enhancements Appropriation Act,
2018 (division B of Public Law 115-96) may be obligated and
expended notwithstanding section 504(a)(1) of the National
Security Act of 1947.
This language is troublesome for the committee because it would
authorize the intelligence community to spend funds ``notwithstanding''
the law that requires prior authorization by the Senate Intelligence
Committee or by the House Intelligence Committee.
The vice chairman and I were on the floor, I think, last week, and we
had a 65-to-34 vote to reauthorize the most significant intelligence
tool to keep America safe. In that debate, both Senator Warner and I
said to our opposition that we would do everything within the
committee's power to make sure we did aggressive, real-time oversight
over the entire intelligence community.
Sometimes that means that when we see there might be something we are
uncomfortable with, we alter the ability to access funds. In
congressional terms, we call it fencing off money. But we utilize the
tools as an authorizer to affect what, in fact, individuals within the
intelligence community can choose to do.
When you take away section 504 authorities that the committees have,
for the next 3 weeks we will have an inability to exercise, in our
estimation, the tools that we might need to keep our commitment to 34
individuals who still voted against us but, more importantly, to the
American people, for whom we would do everything to make sure our
intelligence communities act in a way that those educated and elected
in this body see fit. As a result, this language can erode the powers
of the authorizing committee. Effectively, the intelligence community
could expend funds as it sees fit without an authorization bill in
place and with no statutory direction indicating that an authorization
bill for 2018 is forthcoming.
Let me just say to my colleagues, a situation like this is untenable.
We have worked with our colleagues in HPSCI to develop language to
change this. I might say, we have had a couple of opportunities to do
it, and we should have done it literally when we changed the date of
the CR. When we changed the date from the original date, which I think
was the 16th, to the 8th of February, we should have inserted this new
language. But because there is a fight between appropriators and the
Intelligence Committee in the House, we weren't able to do that.
I have a feeling that Senator Warner and I are going to find there is
now a fight between the Intelligence Committee and the appropriators in
the U.S. Senate because, I fear, someone might object to the unanimous
consent request I will ask after Senator Warner speaks.
Let me read what the committee has come up with. This is bicameral.
The House Select Committee on Intelligence is in agreement. In section
148, it would say:
Funds appropriated by the Department of Defense Missile
Defeat and Defense Enhancements Appropriations Act, 2018
(division B of Public Law 115-96), for intelligence or
intelligence related activities are deemed to be specifically
authorized by Congress for purposes of section 504 of the
National Security Act of 1947 (50 U.S.C. 414) during fiscal
year 2018 until the enactment of the Intelligence
Authorization Act for fiscal year 2018.
The vice chairman is a lawyer; I am not. I really rely upon the legal
counsel that we have within the committee to interpret U.S. law. It
really doesn't take a law degree to understand that there is a huge
difference between ignoring section 504, ``notwithstanding,'' and
applying section 504, which our change makes.
This isn't really a misinterpretation. This is a question of whether
you want to take section 504 of the National Security Act of 1947 (50
U.S.C. 414) and continue to let it apply or whether you are going to
provide the intelligence community a waiver that exempts them from
having to adhere to a part of U.S. Code.
The reason I wanted the opportunity to speak before we ask unanimous
consent is, I want my colleagues to understand that we take our
oversight role extremely seriously. We want to have every tool in our
basket that we can to give the American people the assurance that we
know exactly what is going on and that we are at least in agreement
that they proceed forward, not that they have free rein only because
they have been appropriated a pot of money because an executive request
was made. It would be no different under the Obama administration or
under the Trump administration. I would encourage my colleagues not to
object to it when I ask for the unanimous consent because that is what
we are here for.
With that, I yield to the vice chairman.
The PRESIDING OFFICER. The Senator from Virginia.
Mr. WARNER. Mr. President, I want to echo a number of the comments my
friend, the chairman, the Senator from North Carolina made. Ten days
ago, we asked for reauthorization of section 702, and I came to this
floor and advocated that this was a critically important tool. Part of
the reforms of that legislation would even give us more insight into
how that tool was used. We said, at that point, not only to those
Members who didn't agree with us on that but to all of the Members--for
that matter, the American people--that the Intelligence Committee would
continue its vigorous oversight of that program and other programs.
Being on the Intelligence Committee, at least until recently, has not
been necessarily all that high attention and profile. We spend hundreds
and hundreds of hours every month in a SCIF. One of the things I find
so rewarding about the Intelligence Committee's work is that on issue
after issue, you couldn't tell who is a Democrat and Republican. We all
take extraordinarily serious our oversight responsibilities.
If this exemption is granted, you could potentially have an
administration--any administration--go off and take on covert
activities, for example, with no ability for our committee, which
spends the time and has the oversight, to say timeout or to say we
actually disagree with that policy.
I have been very disturbed about the whole process that arose in the
House, how it was attempted to get slipped in. I hope, as well as the
chairman, that no Member would choose to object. If they do choose to
object, I hope they will be able to explain to the American public why
they would want to remove the Intelligence Committee's ability to
monitor, and then if we make a decision, withdraw funds if we don't
agree and have that ongoing tool that is one of the most key components
of our oversight responsibility--why they would want to, in effect,
give any administration, for that matter, a blank check.
Again, my hope is no one will object to this request; that we will
continue the policies that existed for as long as I have been on the
committee; and that those of us on that committee will continue to take
the responsibility of oversight very seriously and will continue to do
it in a bipartisan way.
With that, I yield back to the chairman.
Mr. BURR. Mr. President, I thank the vice chairman of the committee.
There are over 30-plus professional staffers who staff both sides of
the Intelligence Committee. On each side, there is a staffer designated
for each of the intelligence agencies in this country. I would dare say
today they know their particular portfolio of intelligence agencies as
well as the employees who work inside that agency. They are experts.
They are tasked with that degree of knowledge. Layered on top of that
are 15 Members of the U.S. Senate whom the leadership on both sides
have asked to spend countless hours behind closed doors--as the vice
chairman said--typically in a bipartisan fashion to provide for every
Member and for the American people our certification that we agree with
what the intelligence community is doing; that it lives within the
letter of the law; that there is some congressional oversight on a
constant basis, in real-time, assuring Members and the American people
of that accuracy. Why would you take away the tools we have to actually
hold them accountable?
I know appropriators believe this hinders their ability to spend
money when we are in a continuing resolution
[[Page S435]]
period because of section 504. I am not sure I interpret it the same
way they do. Just because an executive branch has asked for a pot of
money, I have never considered that the committee couldn't go in,
because of a vehement disagreement with the way some of it is being
spent, and alter it. That altering means that on the part of 15 Members
we have a hesitancy as to how it is being done. If you neuter the
committee, you neuter our oversight.
Mr. President, at this time, I ask unanimous consent that the Burr
amendment to amendment No. 1917, which is at the desk, be considered
and agreed to.
The PRESIDING OFFICER. Is there objection?
The PRESIDING OFFICER. The Senator from Mississippi.
Mr. COCHRAN. Mr. President, the language in section 148 of the
continuing resolution is included exactly as requested by the
administration. It is consistent with language that has been adopted
many times in past continuing resolutions.
The appropriation for missile defeat previously approved by Congress
is very explicit. Section 2002 of that appropriation provides that the
funds ``shall be allocated to programs, projects, and activities in
accordance with the detailed congressional budget justifications
submitted by the Department of Defense to accompany the Fiscal Year
2018 Budget Amendments requested by the President on November 6,
2017.'' It further provides that ``changes to the allocation of such
funds shall be subject to the reprogramming requirements set forth in
the annual appropriations Act.'' Section 2002 explicitly protects the
oversight prerogatives of the Senate Select Committee on Intelligence
and its role in approving deviations from the Administration's request.
I will continue to work with the Senator from North Carolina on his
concerns but must object to his request.
Mr. President, I object.
The PRESIDING OFFICER. Objection is heard.
Mr. BURR. Mr. President, it is my hope that we will come to our
senses at some point in this process and that this waiver to U.S. Code
will, in fact, not be in place, but I will assure, on behalf of the
vice chairman and myself to all our Members, we will, to the best of
our ability, given the limitation that is placed on us, hold the
intelligence community accountable for everything they do and that we
will be much more active in the future relative to the appropriations
that find their way there if, in fact, they are not going to provide us
the tools to manage, in a constructive way, those things the agencies
choose to carry out.
If I didn't have the number of individuals in Members and in staff
who are experts, I probably wouldn't be as confident, but these folks
take it extremely seriously because we know what is at stake--the trust
we have with our Members and the trust we have with the American
people.
With that, Mr. President, I yield back but with great disappointment.
I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The bill clerk proceeded to call the roll.
[...]
