[Congressional Record Volume 164, Number 15 (Monday, January 22, 2018)]
[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 
  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.