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The PRESIDING OFFICER. Under the previous order, the clerk will report S. 1301.
The legislative clerk read as follows:
A bill (S. 1301) to authorize appropriations for fiscal year 1994 for intelligence activities of the United States Government and the Central Intelligence Agency Retirement and Disability System, and for other purposes.
The Senate proceeded to consider the bill, which had been reported from the Committee on Armed Services, with an amendment on page 14, line 24, to strike `(c)' through `Treasury' on page 15, line 2.
So as to make the bill read:
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SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title: This Act may be cited as the `Intelligence Authorization Act for Fiscal Year 1994'.
(b) Table of Contents: The table of contents for this Act is as follows:
Sec. 1. Short title; table of contents.
Sec. 101. Authorization of appropriations.
Sec. 102. Classified schedule of authorizations.
Sec. 103. Personnel ceiling adjustments.
Sec. 104. Community Management Account.
Sec. 201. Authorization of appropriations.
Sec. 202. Technical corrections.
Sec. 301. Increase in employee compensation and benefits authorized by law.
Sec. 302. Restriction on conduct of intelligence activities.
Sec. 401. General Counsel of the Central Intelligence Agency.
Sec. 402. Technical amendments to the CIA Act and National Security Act.
Sec. 501. Foreign language proficiency pay for members of the reserve components of the Armed Forces.
Sec. 502. National Security Education Trust Fund.
Sec. 601. Federal Bureau of Investigation counterintelligence access to consumer credit records.
TITLE I--INTELLIGENCE ACTIVITIES
SEC. 101. AUTHORIZATION OF APPROPRIATIONS.
Funds are hereby authorized to be appropriated for fiscal year 1994 for the conduct of the intelligence activities of the following elements of the United States Government:
(1) The Central Intelligence Agency.
(2) The Department of Defense.
(3) The Defense Intelligence Agency.
(4) The National Security Agency.
(5) The National Reconnaissance Office.
(6) The Central Imagery Office.
(7) The Department of the Army, the Department of the Navy, and the Department of the Air Force.
(8) The Department of State.
(9) The Department of the Treasury.
(10) The Department of Energy.
(11) The Federal Bureau of Investigation.
SEC. 102. CLASSIFIED SCHEDULE OF AUTHORIZATIONS.
(a) Specifications of Amounts and Personnel Ceilings: The amounts authorized to be appropriated under section 101, and the authorized personnel ceilings as of September 30, 1994, for the conduct of the intelligence activities of the elements listed in such section, are those specified in the classified Schedule of Authorizations prepared by the Select Committee on Intelligence of the Senate to accompany (S. 1301) of the One Hundred Third Congress.
(b) Availability of Classified Schedule of Authorizations: The Schedule of Authorizations shall be made available to the Committee on Appropriations of the Senate and the Committee on Appropriations of the House of Representatives and to the President. The President shall provide for suitable distribution of the Schedule, or of appropriate portions of the Schedule, within the executive branch.
SEC. 103. PERSONNEL CEILING ADJUSTMENTS.
(a) Authority for Adjustments: The Director of Central Intelligence may authorize employment of civilian personnel in excess of the number authorized for fiscal year 1994 under section 102 of this Act whenever the Director determines that such action is necessary for the performance of important intelligence functions, except that such number may not, for any element of the intelligence community, exceed 2 percent of the number of civilian personnel authorized under such section for such element.
(b) Notice to Intelligence Committees: The Director of Central Intelligence shall promptly notify the Permanent Select Committee on Intelligence of the House of Representatives and the Select Committee on Intelligence of the Senate whenever the Director exercises the authority granted by this section.
SEC. 104. COMMUNITY MANAGEMENT ACCOUNT.
(a) Authorizations of Appropriations: There is authorized to be appropriated for the Community Management Account of the Director of Central Intelligence for fiscal year 1994 the sum of $144,588,000. Within such amounts authorized, amounts identified for the Advanced Research and Development Committee shall remain available for obligation through September 30, 1995.
(b) Authorized Personnel Levels: The Community Management Account of the Director of Central Intelligence is authorized 237 full-time personnel as of September 30, 1994. Such personnel of the Community Management Account may be permanent employees of the Community Management Account or personnel detailed from other elements of the United States Government.
(c) Reimbursement: During fiscal year 1994, any officer or employee of the United States or a member of the Armed Forces who is detailed to the Community Management Account from another element of the United States Government shall be detailed on a reimbursable basis, except that any such officer, employee, or member may be detailed on a nonreimbursable basis for a period of less than 1 year for the performance of temporary functions as required by the Director of Central Intelligence.
TITLE II--CENTRAL INTELLIGENCE AGENCY RETIREMENT AND DISABILITY SYSTEM
SEC. 201. AUTHORIZATION OF APPROPRIATIONS.
There is authorized to be appropriated for the Central Intelligence Agency Retirement and Disability Fund for fiscal year 1994 the sum of $182,300,000.
SEC. 202. TECHNICAL CORRECTIONS.
(a) Corrections: The Central Intelligence Agency Retirement Act (50 U.S.C. 2001 et seq.) is amended as follows:
(1) In section 101(7)--
(A) strike out the comma after `basic pay' and insert in lieu thereof `and'; and
(B) strike out `, and interest determined under section 281'.
(2) In section 201(c), strike out `proviso of section 102(d)(3) of the National Security Act of 1947, (50 U.S.C. 403(d)(3))' and insert in lieu thereof `requirement in section 103(c)(5) of the National Security Act of 1947 (50 U.S.C. 403-3(c)(5))'.
(3) In section 211(c)(2)(B), strike out `the requirement under section 241(b)(4)' and insert in lieu thereof `prior notification of a current spouse, if any, unless notification is waived under circumstances described in section 221(b)(1)(D)'.
(4) In section 221--
(A) in subsection (a)(4), strike out `(or, in the case of an annuity computed under section 232 and based on less than 3 years, over the total service)';
(B) in subsection (f)(1)(A)--
(i) insert `after the participant's death' before the period at the end of the first sentence; and
(ii) strike out `after the participant's death' in the second sentence;
(C) in subsection (g)(1), strike out `(or is remarried' and insert in lieu thereof `(or is remarried,'; and
(D) In subsection (j), strike out `(except as provided in paragraph (2))'.
(5) In section 222--
(A) in subsection (a)(7), strike out `any other annuity' the first time it appears and insert in lieu thereof `any survivor annuity';
(B) in subsection (c)(3)(C), insert `the participant' before `or does not qualify'; and
(C) in subsection (c)(4), strike out `shall terminate' and all that follows and insert in lieu thereof `in the case of a spouse, shall terminate on the last day of the month before the spouse dies, and, in the case of a former spouse, shall terminate on the last day of the month before the former spouse dies, or on the last day of the month before the former spouse remarries before attaining age 55'.
(6) In section 224(c)(1)(B)(i), strike out `former participant' and insert in lieu thereof `retired participant'.
(7) In section 225(c)--
(A) in paragraph (3), strike out `any other annuity' the first time it appears and insert in lieu thereof `any survivor annuity'; and
(B) in paragraph (4)(A), strike out `1991' and insert in lieu thereof `1990'.
(8) In section 231(d)(2), strike out `241(b)' and insert in lieu thereof `241(a)'.
(9) In section 232(b)(4), strike out `section 222' and insert in lieu thereof `section 224'.
(10) In section 234(b), strike out `sections 241 and 281' and insert in lieu thereof `section 241'.
(11) In section 241--
(A) in subsection (c), strike out `A lump-sum benefit that would have been payable to a participant, former participant, or annuitant, or to a survivor annuitant, authorized by subsection (d) or (e) of this section or by section 234(b) or 281(d)' and insert in lieu thereof `A lump-sum payment authorized by subsection (d) or (e) of this section or by section 281(d) and a payment of accrued and unpaid annuity authorized by subsection (f) of this section';
(B) redesignate subsection (f) as subsection (g); and
(C) insert after subsection (e) the following new subsection (f):
`(f) Payment of Accrued and Unpaid Annuity When Retired Participant Dies: If a retired participant dies, any annuity accrued and unpaid shall be paid in accordance with subsection (c).'.
(12) In section 264(b)--
(A) in paragraph (2), insert `and' after the semicolon at the end;
(B) in paragraph (3), strike out `and to any payment of a return of contributions under section 234(a); and' and insert in lieu thereof `, and the amount of any such payment;'; and
(C) strike out paragraph (4).
(13) In section 265, strike out `Act' each place it appears and insert in lieu thereof `title'.
(14) In section 291(b)(2), strike out `or section 232(c)'.
(15) In section 304(i)(1), strike out `section 102(a)(3)' and insert in lieu thereof `section 102(a)(4)'.
(b) Retroactive Effective Date: The amendments made by subsection (a) shall be effective as of February 1, 1993.
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TITLE III--GENERAL PROVISIONS
SEC. 301. INCREASE IN EMPLOYEE COMPENSATION AND BENEFITS AUTHORIZED BY LAW.
There are authorized to be appropriated to carry out the purposes of this Act such additional amounts for fiscal year 1994 as may be necessary for increases in salary, pay, retirement, and other employee benefits authorized by law.
SEC. 302. RESTRICTION ON CONDUCT OF INTELLIGENCE ACTIVITIES.
The authorization of appropriations in this Act does not constitute authority for the conduct of any intelligence activity which is not otherwise authorized by the Constitution or the laws of the United States.
TITLE IV--CENTRAL INTELLIGENCE AGENCY
SEC. 401. GENERAL COUNSEL OF THE CENTRAL INTELLIGENCE AGENCY.
(a) Position Established: The Central Intelligence Agency Act of 1949 (50 U.S.C. 403a et seq.) is amended by adding at the end the following:
`General Counsel of the Central Intelligence Agency.'.
(c) Effective Date: The amendments made by this section shall take effect one year after the date of the enactment of this Act.
SEC. 402. TECHNICAL AMENDMENTS TO THE CIA ACT AND NATIONAL SECURITY ACT.
(a) Amendments to CIA Act: The Central Intelligence Agency Act of 1949 (50 U.S.C. 403a et seq.) is amended as follows:
(1) In section 5(a)--
(A) strike out `Bureau of the Budget' and insert `Office of Management and Budget'; and
(B) strike out `sections 102 and 303' and insert in lieu thereof `subparagraphs (B) and (C) of section 102(a)(2), subsections (c)(5) and (d) of section 103, subsections (a) and (g) of section 104, and section 303'.
(2) In section 6, strike out `section 102(d)(3)' and insert in lieu thereof `section 103(c)(5)'.
(3) In section 19(b)--
(A) strike out `231' in the subsection heading and in the matter after clause (iv) and insert in lieu thereof `232'; and
(B) strike out `(50 U.S.C. 403 note)'.
(b) Amendments to National Security Act: Section 103(d)(3) of the National Security Act of 1947 is amended by striking out `providing' and inserting in lieu thereof `provide'.
TITLE V--DEPARTMENT OF DEFENSE
SEC. 501. FOREIGN LANGUAGE PROFICIENCY PAY FOR MEMBERS OF THE RESERVE COMPONENTS OF THE ARMED FORCES.
(a) Bonus Authorized: Section 316(c) of title 37, United States Code, is amended by striking out paragraphs (1) and (2) and inserting in lieu thereof the following:
`(1) Under regulations prescribed by the Secretary concerned, when a member of a reserve component who is entitled to compensation under section 206 of this title meets the requirements for special pay authorized in subsection (a), except the requirement prescribed in subsection (a)(1), the member may be paid an annual foreign language maintenance bonus.
`(2) The amount of the bonus under paragraph (1) shall be determined by the Secretary concerned but may not exceed the annual equivalent of the maximum monthly rate of special pay authorized under subsection (b) for a member referred to in subsection (a).'.
(b) Effective Date: The amendment made by subsection (a) shall take effect with respect to the first month that begins more than 90 days after the date of the enactment of this Act.
SEC. 502. NATIONAL SECURITY EDUCATION TRUST FUND.
(a) Crediting of Gifts to the National Security Education Trust Fund: Section 804(e) of the Intelligence Authorization Act, Fiscal Year 1992 (50 U.S.C. 1904(e)) is amended by adding at the end thereof the following:
`(3) Any gifts of money shall be credited to and form a part of the Fund.'.
(b) Repeal of Authorization Requirement: Section 804(b) of such Act is amended--
(1) by striking `(1)';
(2) by redesignating subparagraphs (A) and (B) as paragraphs (1) and (2); and
(3) by striking paragraph (2).
(c) Transfer of Funds Requirement: The Secretary of Defense shall transfer $25,000,000 from the National Security Education Trust Fund to the miscellaneous receipts account of the Treasury.
TITLE VI--FEDERAL BUREAU OF INVESTIGATION
SEC. 601. FEDERAL BUREAU OF INVESTIGATION COUNTERINTELLIGENCE ACCESS TO CONSUMER CREDIT RECORDS.
Section 608 of the Fair Credit Reporting Act (15 U.S.C. 1681f) is amended--
(1) by striking `Notwithstanding' and inserting `(a) Disclosure of Certain Identifying Information: Notwithstanding'; and
(2) by adding at the end the following new subsection:
`(b) Disclosures to the FBI for Counterintelligence Purposes:
`(1) Consumer reports: Notwithstanding the provisions of section 604, a consumer reporting agency shall furnish a consumer report to the Federal Bureau of Investigation when presented with a written request for a consumer report, signed by the Director of the Federal Bureau of Investigation (hereafter in this section referred to as the `Director') or the Director's designee, which certifies compliance with this subsection. The Director or the Director's designee may make such a certification only if the Director or the Director's designee has determined in writing that--
`(A) such records are necessary for the conduct of an authorized foreign counterintelligence investigation; and
`(B) there are specific and articulable facts giving reason to believe that the consumer whose consumer report is sought is a foreign power or an agent of a foreign power, as defined in section 101 of the Foreign Intelligence Surveillance Act of 1978.
`(2) Identifying information: Notwithstanding the provisions of section 604, a consumer reporting agency shall furnish identifying information respecting a consumer, limited to name, address, former addresses, places of employment, or former places of employment, to the Federal Bureau of Investigation when presented with a written request, signed by the Director or the Director's designee, which certifies compliance with this subsection. The Director or the Director's designee may make such a certification only if the Director or the Director's designee has determined in writing that--
`(A) such information is necessary to the conduct of an authorized foreign counterintelligence investigation; and
`(B) there is information giving reason to believe that the consumer has been, or is about to be, in contact with a foreign power or an agent of a foreign power, as defined in section 101 of the Foreign Intelligence Surveillance Act of 1978.
`(3) Confidentiality: No consumer reporting agency or officer, employee, or agent of such consumer reporting agency may disclose to any person, other than those officers, employees or agents of such agency necessary to fulfill the requirement to disclose information to the Federal Bureau of Investigation under this subsection, that the Federal Bureau of Investigation has sought or obtained a consumer report or identifying information respecting any consumer under paragraph (1) or (2), nor shall such agency, officer, employee, or agent include in any consumer report any information that would indicate that the Federal Bureau of Investigation has sought or obtained such a consumer report or identifying information.
`(4) Payment of fees: The Federal Bureau of Investigation shall, subject to the availability of appropriations, pay to the consumer reporting agency assembling or providing credit reports or identifying information in accordance with procedures established under this title, a fee for reimbursement for such costs as are reasonably necessary and which have been directly incurred in searching for, reproducing, or transporting books, papers, records, or other data required or requested to be produced under this subsection.
`(5) Limit on dissemination: The Federal Bureau of Investigation may not disseminate information obtained pursuant to this subsection outside of the Federal Bureau of Investigation, except to the Department of Justice as may be necessary for the approval or conduct of a foreign counterintelligence investigation.
`(6) Rules of construction: Nothing in this subsection shall be construed to prohibit information from being furnished by the Federal Bureau of Investigation pursuant to a subpoena or court order, or in connection with a judicial or administrative proceeding to enforce the provisions of this Act. Nothing in this subsection shall be construed to authorize or permit the withholding of information from the Congress.
`(7) Reports to the congress: On a semiannual basis, the Attorney General of the United States shall fully inform the Permanent Select Committee on Intelligence and the Committee on Banking, Finance and Urban Affairs of the House of Representatives, and the Select Committee on Intelligence and the Committee on Banking, Housing, and Urban Affairs of the Senate concerning all requests made pursuant to paragraph (1) and (2).
`(8) Damages: Any agency or department of the United States obtaining or disclosing credit reports, records, or information contained therein in violation of this subsection is liable to the consumer to whom such records relate in an amount equal to the sum of--
`(A) $100, without regard to the volume of records involved;
`(B) any actual damages sustained by the consumer as a result of the disclosure;
`(C) such punitive damages as a court may allow, where the violation is found to have been willful or intentional; and
`(D) in the case of any successful action to enforce liability under this subsection, the costs of the action, together with reasonable attorney's fees, as determined by the court.
`(9) Disciplinary actions for violations: If a court determines that any agency or department of the United States has violated any provision of this subsection and the court finds that the circumstances surrounding the violation raise questions of whether or not an officer or employee of the agency or department acted willfully or intentionally with respect to the violation, the agency or department shall promptly initiate a proceeding to determine whether or not disciplinary action is warranted against the officer or employee who was responsible for the violation.
`(10) Good-faith exception: Any credit reporting agency or agent or employee thereof making a disclosure of credit reports or identifying information pursuant to this subsection in good-faith reliance upon a certificate by the Federal Bureau of Investigation pursuant to provisions of this subsection shall not be liable to any person for such disclosure under this title, the constitution of any State, or any law or regulation of any State or any political subdivision of any State.
`(11) Limitation of remedies: The remedies and sanctions set forth in this subsection shall be the only judicial remedies and sanctions for violations of this subsection.
`(12) Injunctive relief: In addition to any other remedy contained in this subsection, injunctive relief shall be available to require compliance with the procedures of this subsection. In the event of any successful action under this subsection, costs together with reasonable attorney's fees, as determined by the court, may be recovered.'.
The PRESIDING OFFICER. Under the previous order, there will be 30 minutes of debate, equally divided, on the bill itself. There is an agreement for 2 hours and 10 minutes for debate on the amendment of the Senator from Ohio [Mr. Metzenbaum]. Three amendments are in order during the time of debate on the bill itself.
The pending question at this time is the committee amendment on page 14, line 24.
Is there any further debate on that amendment?
If not, the question is on agreeing to the amendment.
The committee amendment on page 14, line 24, was agreed to.
The PRESIDING OFFICER. The Senator from Arizona is recognized.
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Mr. DeCONCINI. Mr. President, I thank the Chair for the restatement of the unanimous consent agreement and the adoption of the amendment.
The PRESIDING OFFICER. The Senator from Arizona.
Mr. DeCONCINI. Mr. President, it is a distinct privilege for me in this my first year as chairman of the Select Committee on Intelligence, to present to the Senate, along with my distinguished colleague from Virginia and vice chairman of the committee, Senator Warner, S. 1301, the Intelligence Authorization Act for fiscal year 1994.
As always, this has been a bill arrived at by the committee after many hours of hearings and briefings, after digesting literally thousands of pages of budget justification relating to every intelligence program undertaken by our Government.
Indeed, Mr. President, I daresay that there is not another area of Government activity that receives the kind of detailed scrutiny of its activities from the Congress than does the area of intelligence. We are blessed with a particularly talented, knowledgeable staff who serve well the interests of the committee and the Senate as a whole.
Mr. President, this bill authorizes funding for fiscal year 1994 for all of the national intelligence activities of the Federal Government, to include those of the Central Intelligence Agency, the National Security Agency, the Defense Intelligence Agency, the National Reconnaissance Office, the Central Imagery Agency, and the intelligence elements of the military departments, the FBI, and the Departments of State, Treasury, and Energy. In addition, it provides certain administrative authorities which I will explain in more detail at the end of my statement.
Because the amount authorized for national intelligence programs is classified by the executive branch, as well as the amounts authorized for specific programs, I am unable to provide specifics in an open session of the Senate. Every Senator is entitled to know, however, what is being authorized for every intelligence activity if he or she desires. As we do each year, the committee invited Members to come to its offices to see the specific numbers for themselves, or, if they preferred, to be briefed on them.
While I am unable to provide the specific numbers, Mr. President, the bill we are recommending today represents a significant cut from the administration's original request and would essentially hold the line at or just below last year's appropriated level. This would mean that for a fifth consecutive year, dating back to the fall of the Berlin Wall and collapse of the Soviet Union, the budget for national intelligence activities has declined. Overall, if this bill is enacted, intelligence resources will have shrunk 13 percent in real terms when compared with 1989 appropriations.
Last year, the cut imposed by Congress was particularly severe, the largest percentage cut in at least 20 years. In addition to these funding cuts, Congress levied an across-the-board 17.5-percent reduction in personnel in all intelligence agencies, including the CIA, by 1997. So, there should be no mistake, Mr. President, intelligence has been cut and cut severely over the last 5 years. Functions are being consolidated, and agencies are being streamlined.
The administration, moreover, continues to tell us that it intends to fulfill its pledge to cut the prior administration's projected spending for intelligence by $7 billion over the next 4 years. It is optimistic that intelligence capabilities can be further restructured in a way that additional savings will be possible. At the same time, it urges us to work with it to draw down in a measured way which will leave the United States with a flexible but adequate capability to gather and analyze information needed by the President and other policymakers, by our military forces, and by literally thousands of other intelligence consumers in government and industry. The cuts being recommended to the Senate in this year's authorization bill, in my view, represent such a measured approach.
Yes, the world has changed. We no longer face the same
sort of threat to our survival that we faced during the cold war. At the same time, we cannot ignore the legitimate and continuing demands being placed upon intelligence.
To begin with, the focus of United States intelligence during the cold war, namely the military threat posed by the Soviet Union and its Warsaw pact allies, though changed, has not entirely disappeared. There remain in the Russian Republic and the former Soviet Republics of Ukraine and Kazahkstan roughly 30,000 strategic and tactical nuclear weapons. While the governments of these republics are no longer hostile to the United States and presently seem unlikely to become so, control of these weapons, to prevent their loss to extremist states or terrorists, remains a significant concern of the United States.
Indeed, the United States has a serious stake in preventing the proliferation of weapons of mass destruction, whether they be nuclear, chemical, or biological weapons, as well as the proliferation of missile systems able to deliver these weapons over long distances. It is clear that several states--some of whom are hostile to the United States or have unstable relationships with neighboring countries--countries like North Korea, Libya, Iran, and Iraq--are attempting to become nuclear states or are developing chemical or biological weapons. Should they succeed in developing these capabilities, other states in the same region may decide they have no alternative but to follow a similar path.
The intelligence community monitors the control and movement of existing weapons of mass destruction and tracks the development and production of these weapons and the systems designed to deliver them. The results of these efforts have been the basis for diplomatic actions by the United States and increasingly are being provided to international bodies charged with monitoring compliance with treaties designed to prevent the spread of such weapons and related delivery systems.
The intelligence community also provides virtually the sole means of verifying many bilateral and multilateral agreements signed by the United States. In addition, the intelligence community plays a key role in terms of advising U.S. diplomats involved in negotiating such agreements.
In a similar vein, the intelligence community is asked to monitor the effectiveness of international economic or military sanctions which might be imposed on other countries by the United Nations or by the United States on a unilateral or multilateral basis. Frequently the results of these efforts have led to diplomatic or military actions to enforce or effectuate the sanctions or embargoes concerned.
A large part or the intelligence community's efforts are devoted to support of U.S. military forces, which, with the end of the superpower conflict, must prepare for a variety of new contingencies. While clearly the threat of nuclear devastation has lessened, longstanding ethnic, cultural, and political rivalries previously held in check by the superpower conflict have been unleashed. Regional conflicts have been spawned around the globe, and it has become increasingly difficult to predict where U.S. military forces might be deployed, what their objectives will be once deployed, or what type of military threat they might face. The job of the intelligence community is to anticipate where such deployments might occur and maintain an information base capable of supporting such contingencies.
This function entails not only identifying the capabilities and vulnerabilities of opposing military or paramilitary forces, but also gathering information to be used in planning U.S. operations, targetting data to guide U.S. smart weapons, data to counter enemy radars and sensors which otherwise might threaten U.S. aircraft, and other military support functions.
Once U.S. forces are deployed, the intelligence community typically brings to bear its entire capability in their support, both to achieve the rapid success of the mission and to protect U.S. lives and resources.
Increasingly, the intelligence community is also supporting the operational deployments of U.N. peacekeeping forces as well, providing intelligence on threats to the safety and mission of such forces. This has recently occurred in support of United Nations operations in Cambodia and Bosnia and Herzegovenia. Clearly, where United States forces are participating in United Nations operations, as they currently are in Somalia, the level of intelligence support is substantially enhanced.
In addition to supporting military operations, the intelligence community also provides support to the planning of U.S. military force structures and tactics, as well as to the research, development and acquisition of military weapons and equipment by the Department of Defense. Even in an era of military downsizing, the intelligence community continues to provide literally thousands of defense planners and contractors with information concerning foreign military capabilities which must be taken into account as they assess U.S. military needs of the future and build the capabilities to match them.
The end of the cold war has also seen increasing recognition of the importance of a strong domestic economy as an element of U.S. national security. This recognition has caused a reexamination of the intelligence community's capabilities and proper role in terms of supporting the competitive position of U.S. industry abroad. While there are clear pitfalls to be avoided in this area, intelligence agencies are increasingly being called upon by Federal agencies which are charged with promoting U.S. competitiveness abroad--principally, the Departments of State, Commerce, and the Treasury--to alert them to cases in which there is a need to keep the playing field level for U.S. business interests abroad. Similarly, the Federal Bureau of Investigation [FBI] and other elements of the intelligence community provide information to firms within the United States which indicates such firms may be the subject of an intelligence attack by foreign governments or by persons or companies acting under the sponsorship of a foreign government.
The intelligence community also plays important, though largely unseen, roles in the areas of counterterrorism and counternarcotics.
The FBI intelligence division has responsibility for tracking and monitoring possible international terrorist activity within the United States. The CIA and other intelligence agencies are involved in monitoring terrorist activities abroad. Such monitoring includes tracking the movements of known or suspected terrorists, developing information on their training, tactics, operations and equipment, and developing information regarding the relationships between terrorist groups and foreign governments. The information developed as a result of such monitoring is shared by the United States with the authorities of other governments whose nationals or resources might be threatened by terrorist activities. The objectives of such monitoring are to prevent terrorist incidents from taking place, such as the recent action by the FBI to prevent a series of bombings and assassinations in New York City, or to apprehend and prosecute the perpetrators of terrorist acts, such as the recent bombing of the World Trade Center or the downing of Pan Am 103 several years before. In each of the cases cited, the intelligence community played a significant role in preventing or redressing terrorist incidents involving U.S. citizens or property.
The role of the intelligence community in countering international narcotics activities is also significant but not well appreciated. U.S. intelligence capabilities are frequently used to determine where narcotic substances are being grown or produced in foreign countries, to determine where narcotics are being shipped or transported, to understand the network used to produce and distribute these narcotics, or to learn where proceeds from their sale are being used or deposited. This information is turned over not only to U.S. drug enforcement authorities, but to appropriate authorities in other governments to identify and locate the
individuals involved in such activities and to preclude them from successfully carrying out their plans. Often, there is only an indirect benefit to the United States, and more often than not the role of U.S. intelligence agencies is not publicly acknowledged by other governments. Suffice it to say, the involvement of U.S. intelligence often provides the key to a successful raid on a drug installation in a foreign country or a successful interception of narcotics in international transit.
Finally, Mr. President, the President and other key policymakers have a continuing need for secret, nonpublicly available information regarding the intentions and capabilities of other governments. To be sure, the world political environment has become far more open and foreign leaders more accessible since the end of the cold war. Communications between the United States and other governments, aided by the explosion of technology in recent years, have become more voluminous, direct, and timely. News media instantly flash images and commentary concerning world events to all points of the globe.
Still, the President needs a capability to assess what other governments are saying. Are events as they seem? Can the President rely upon what other governments are saying privately or what they state publicly? How firm is their position? What is their reaction likely to be if the United States takes a particular action and not another? Are U.S. interests threatened and, if so, how?
The intelligence community, by attempting to gather and analyze information concerning the actions or attitudes of other governments which is not publicly available, is often able to provide unique insights to the President and other policymakers. On occasion, this information has provided a reliable basis for a significant U.S. diplomatic or military initiative which would not have otherwise been attempted. This is not to say that the contribution made by U.S. intelligence has always been unique or reliable or actionable. I, myself, have criticized the intelligence community's analysis regarding the former Soviet Union and Iraq's military strength during the Persian Gulf war. I simply note that at times the contribution of intelligence has been invaluable.
In short, Mr. President, we have to stay ready. It makes no sense for us to close our eyes and ears to developments around the world which could ultimately save U.S. lives and resources. This funding level authorized by this bill leaves us in a strong position, and I believe deserves broad, bipartisan support within this body.
In addition to authorizing funds for intelligence, the bill achieves a number of other purposes. Let me summarize the key provisions very briefly.
Title I of the bill contains the annual authorizations for the funding and personnel levels of the community management staff, the element used by the Director of Central Intelligence to support his role as head of the U.S. intelligence community.
Title II of the bill authorizes the annual appropriation for the CIA retirement and disability fund and contains a series of technical amendments correcting errors in the CIA Retirement Act enacted last year.
Title III of the bill contains general provisions governing intelligence activities which appear in each year's authorization.
Title IV would create a statutory position of general counsel for the CIA, to be appointed by the President and subject to Senate confirmation. At present, the general counsel is appointed by the Director of Central Intelligence and is not subject to Senate confirmation.
Senator Glenn offered this amendment at the committee markup explaining that in his view Senate confirmation of the CIA general counsel would be an important safeguard in terms of ensuring that qualified attorneys rather than political
cronies are appointed to this key position. This provision had bipartisan support within the committee.
Title IV also contains a series of technical amendments to the CIA Act of 1949 and the National Security Act of 1947.
Title V provides the Secretaries of the military departments with authority to offer enhanced payments to members of military reserve components who maintain proficiency in foreign languages. At present, the maximum that can be paid to reservists as an incentive to maintain such proficiency is $185 per year, or a little over $15 per month. The bill would allow the military to pay up to $100 per month, the same as active duty military.
Title V also contains a minor amendment to the National Security Education Act and repeals the requirement in the law for an annual authorization in order to remove money from the trust fund established by the act. An annual appropriation would still be required.
Finally, title VI of the bill would amend the Fair Credit Reporting Act to grant the Federal Bureau of Investigation access to consumer credit records in counterintelligence and terrorism investigations. This authority was requested by the administration and was justified to the committee as an important adjunct to the FBI's investigative authorities.
I am pleased to note that the Committee on Banking, Housing and Urban Affairs, which has jurisdiction over the Fair Credit Reporting Act, consented to our committee doing this on our bill and has worked closely with us in crafting appropriate wording.
Mr. President, those are the key features of this year's intelligence authorization bill. it is a responsible bill which enjoys bipartisan support from our committee. I urge my colleagues to support it.
Mr. President, I yield to my vice chairman, Senator Warner.
The PRESIDING OFFICER. The Senator from Virginia is recognized.
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Mr. WARNER. Mr. President, first I would like to commend the chairman of the committee, Senator DeConcini. We have worked, I think, in a bipartisan spirit, together with the members on our committee, to forge this important piece of legislation. We have also been assisted by very capable staff on this.
Mr. President, I support passage of S. 1301, the Intelligence Authorization Act for fiscal year 1994. It has been a privilege to work with the chairman of our Select Committee on Intelligence, Mr. DeConcini, in fashioning a bill to ensure that the Nation has the intelligence capabilities it needs for the future. We also appreciate the fine cooperation we received from the chairman, Mr. Nunn, and the ranking Republican, Mr. Thurmond, of the Committee on Armed Services.
With the end of the cold war and the dissolution of the Soviet Union and its Warsaw pact military alliance, the United States had hoped for a new world order with stable and steady progress toward greater democracy, freedom, and free enterprise. What the United States faces in the post-cold-war era, however, is a more chaotic environment with multiple challenges to U.S. interests that complicate the efforts of the United States and cooperating nations to achieve the desired progress. In an unstable world of diverse and increasing challenges, the need for robust and reliable intelligence capabilities has grown rather than diminished.
Enactment of S. 1301 will help build and maintain the intelligence capabilities we need.
America faces a world in which ethnic, religious, and social tensions spawn regional conflicts; a number of nations possess nuclear weapons and the means to deliver them on a target; other nations seek nuclear, chemical, or biological weapons of mass destruction and the means to delivery them; terrorist organizations continue to operate and attack U.S. interests; international drug organizations continue on a vast scale to produce illegal drugs and smuggle them into the United States; and U.S. economic interests are under constant challenge. Of course, the United States continues to have a vital interest in close monitoring of developments in the independent Republics on the territory of the former Soviet Union.
As is reflected in the minority views accompanying the intelligence committee report on the bill (S. Rept. 103-115), I would have preferred a level of funding for intelligence activities higher than the committee recommended. Among other things, such activities are an important force-multiplier for our Armed Forces in meeting an increasing variety of challenges. Funding for the full range of Federal activities has grown extremely tight, especially in recent months as Congress has considered fiscal year 1994 funding bills, which is appropriate to protect American taxpayers interests. It is in this context that I support passage of S. 1301 to move the process forward. Within the overall level the committee has set for intelligence funding--which must, of course, remain secret--the committee has generally distributed the funding among the various intelligence programs effectively, to maximize the capability achieved from the given level of resources.
I support the four committee amendments, which are:
The Armed Services Committee amendment relating to the National Security Education Act;
The Intelligence Committee amendment relating to pay retention for certain FBI New York personnel;
The Intelligence Committee amendment requiring a report on gaps in U.S. intelligence capabilities; and
The Intelligence Committee amendment that revises section 307 of the National Security Act and ratifies a past funding transaction.
I will oppose the amendment to be offered by the junior Senator from Ohio to express the sense of Congress that the intelligence budget should be disclosed.
I regret that we were unable to reach a timely agreement with our majority colleagues on the Armed Services Committee on an amendment to section 504 of the National Security Act of 1947. The amendment the select committee was pursuing would have made it legally unnecessary to pursue supplemental intelligence authorization statutes in situations in which funds are appropriated for intelligence activities in excess of, or in the absence, of authorization of appropriations for such activities. It is our intention to pursue such an amendment to section 504 promptly as separate legislation. I introduced such legislation on October 21, 1993 (S. 1578) to solve the problems created by section 504, as set forth in detail in my statement upon introducing S. 1578, which is printed in the Congressional Record of that date.
I urge passage of S. 1301 with the four committee amendments.
Mr. President, I will summarize in just several sentences.
We are downsizing the Armed Forces of the United States. We do that by necessity because of the budget situation in the United States today. I personally think we are moving too fast in that direction. We have cut back too far.
But, nevertheless, the Nation's intelligence, as gathered by the various components--the Central Intelligence Agency, the Defense Intelligence Agency, the National Security Agency, the National Reconnaissance Office, and other departments and agencies that work in the intelligence field--becomes a force multiplier. By providing timely and accurate intelligence for our Armed Forces, our intelligence agencies help us use our smaller Armed Forces to maximum effect.
The intelligence gathered by these intelligence services is fed to our decisionmakers, from the President on down, and becomes a force multiplier to help compensate for the reduction in defense spending.
So I urge our colleagues to adopt this bill. It is a good bill. It is carefully forged.
Regrettably it does not, dollarwise, meet the intelligence budget request for fiscal year 1994 of the President of the United States. I was very much in favor of the budget request of the President of the United States, which provided for strong U.S. intelligence capabilities. But it was not in the judgment of the majority of the committee to support that level of funding. I was overruled. I accept that judgment that the committee decided to mark to a lower figure.
I would also make just a few remarks on the amendment just adopted by the Senate. It is an amendment relating to the national security education trust fund, which is a concept that originated primarily with Senators Boren, Nunn, myself, and others. I am very pleased that that is incorporated as a part of the bill.
Mr. President, the Committee on Armed Services, on which I serve in addition to being vice chairman of the Select Committee on Intelligence, recommended a single amendment to the intelligence authorization bill.
The Armed Services Committee amendment would strike from the bill a provision that would return to the Treasury $25 million from the national security education trust fund. That trust fund finances a program of scholarships for undergraduate study abroad, graduate study in the United States, and grants to institutions of higher learning devoted to the study of foreign languages and cultures.
The Armed Services Committee amendment supports the National Security Education Program and had our support. We are pleased to support this program originated by Senator Boren when he was chairman of the Select Committee on Intelligence.
The PRESIDING OFFICER. Who yields time?
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Mr. DeCONCINI. Mr. President, I yield myself whatever time is necessary.
Mr. President, S. 1301 was reported by the Senate Select Committee on Intelligence by a vote of 12 to 5 on July 28, 1993. It was subsequently referred to the Committee on armed Services, pursuant to the provisions of Senate Resolution 400 of the 94th Congress, and has now been reported by that committee with one minor amendment, which has just been discussed, regarding the National Security Education Act and has just been adopted.
Mr. GLENN. Mr. President, I rise in support of the fiscal year 1994 Intelligence Authorization Act. This marks the first budget cycle that the Senate Select Committee on Intelligence, of which I am a member, has been under the capable leadership of Chairman Dennis DeConcini and Vice Chairman John Warner. I would like to take this time to express my great respect and admiration for these two gentlemen and their fine work on the committee.
My colleague from Arizona has recently made the difficult decision to retire from the Senate after his current term expires. I know that this was a difficult decision for Senator DeConcini, but he has many reasons to be proud of his record here in the Senate. It has been a pleasure serving with him on the Senate Intelligence Committee and I look forward to continue serving with Senator DeConcini on the committee through next year under his chairmanship.
Despite my concerns with the level of reductions contained in this legislation, I ultimately supported final passage of the committee's markup of the fiscal year 1994 intelligence authorization bill. Under Chairman DeConcini's leadership, I believe that the reductions made to the intelligence budget in our committee markup were generally reasonable and responsible. Some of my Senate colleagues are anxious to further reduce the intelligence budget. I strongly oppose any such effort and would urge my colleagues to do the same.
Mr. President, I believe that intelligence comprises an unique and irreplaceable component of America's national security infrastructure and should be treated accordingly. With the end of the cold war--which existed in a comparatively stable and predictable international environment--the need for a robust and reliable intelligence capability has grown rather than diminished. In the wake of the dissolution of the Soviet Union, the so-called new world order is anything but orderly.
As the recent parliamentary crisis in Russia and the continued upheaval in the former republics clearly demonstrates, America continues to have significant interests in developments in the former Soviet Union. The intelligence community must continue to aggressively monitor these changes.
To the extent that we need to reduce resources to certain intelligence targets, we must focus more of our intelligence capabilities and resources on other security threats such as the proliferation of weapons of mass destruction, drug smuggling, terrorism, environmental change, arms control monitoring, low-intensity conflict in the Third World, and the illicit export of high-technology items.
Mr. President, in this period of enormous change and uncertainty, the need for timely and accurate intelligence is particularly compelling. Indeed, the United States depends on intelligence to detect and monitor these changes in the international system so we can reallocate increasingly scare national security resources in a more efficient manner.
The effectiveness of United States military forces in Somalia, Iraq, Panama, and elsewhere are directly attributable to timely and effective intelligence. Without question, accurate and timely intelligence is our greatest force-multiplier--particularly at a time when we are significantly reducing our defense spending. When the day comes that the United States must rebuild our national defense--to confront a threat that is now difficult to foresee, we must do so from the strongest and most reliable intelligence base possible.
This body should overwhelmingly oppose any effort to take a meat ax to America's intelligence budget.
Mr. President, I would like to address another aspect of the legislation before the Senate today. The bill contains a provision I sponsored in committee requiring Presidential nomination and Senate confirmation of the CIA general counsel. Currently, only three CIA officials--the Director of Central Intelligence [DCI], the Deputy Director of Central Intelligence [DDCI], and the inspector general [IG]--are confirmed by the Senate.
The precedent for White House and Senate involvement in the selection of senior CIA officials was established at the inception of the present-day U.S. intelligence establishment. The National Security Act of 1947 provided for Presidential nomination and Senate confirmation of the DCI, and the same procedure for selection of the Deputy Director of Central Intelligence (DDCI) was established in 1953. In 1989, President Bush signed legislation into law which created a statutory inspector general [IG] for the CIA with a requirement that the nominee be confirmed by the Senate.
The general counsel position was in existence when the CIA was established in 1947. The CIA general counsel is responsible for providing legal advice to the DCI and the Agency as a whole on all matters, and is responsible for determining the legality of CIA activities and for guarding against any illegal or improper activity.
The responsibilities of CIA's general counsel are in some ways more significant than those of other general counsels in view of the extremely sensitive programs involved that directly affect our Nation's security. Many of the legal issues are
unique to the CIA and have to be treated without the extensive public discourse and numerous precedents that aid other general counsels. The incumbent CIA general counsel deserves the status of a Presidential appointment and Senate confirmation as well as the prestige that this status will give the incumbent in inter-agency deliberations.
Mr. President, I sponsored this provision because I am convinced that the confirmation process has become an increasingly important means to insure the accountability of senior level executive branch officials to the American people through their duly elected representatives in the Congress. This is particularly true of the CIA, which plays a special role in our Government.
Indeed, the CIA is unique among all Federal agencies in the level of trust it demands from the American public and the Congress. And the CIA is unique from other intelligence agencies such as the Defense Intelligence Agency [DIA], the National Security Agency [NSA], the National Reconnaissance Office [NRO], and the FBI.
Although the CIA is not charged primarily with policymaking, it plays a significant role in the formulation of national security policy. The close relationship between the CIA and policymakers is recognized in the legislation that established the CIA.
Among the duties assigned to the CIA by section 103(d)(5) of the National Security Act of 1947 as amended is to `perform such other functions and duties related to intelligence affecting the national security as the President or the National Security Council may direct.' This broad provision has been interpreted to include, among other things, the CIA's role in planning and implementing various types of sensitive activities overseas--including covert action, which is, need I remind my colleagues, operational U.S. policy.
As the CIA has grown over the years, its support to U.S. national security policies has broadened into many different areas. The individual who holds the CIA general counsel position advises the DCI and the DDCI about the legality of CIA activities. The DCI and the DDCI are in turn responsible for providing leadership and direction not only to the CIA, but the entire U.S. intelligence community as well. Thus, the CIA general counsel plays a significant role supporting the entire national security infrastructure of our Nation.
Unlike other intelligence agencies such as NSA, DIA, the NRO, or the FBI, the CIA is not organizationally subordinate to another department of the Federal Government--by statute, it directly supports the President and the National Security Council. NSA, DIA, and the NRO are agencies of the Department of Defense, and the FBI is subordinate to the Department of Justice. In addition, the CIA, unlike the NSA, DIA, the NRO, and the FBI and all other components of the intelligence community, is the only intelligence agency--and indeed the only Federal agency--that is not subject to GAO audits. This organizational independence places the CIA in a different category from other components of the intelligence community and argues for a greater degree of scrutiny of high-level agency officials.
Mr. President, I would also note that at the present time, all components of the intelligence community--except the CIA--are part of departments with statutory general counsels--or the equivalent--who are appointed by the President, and confirmed by the Senate. In some departments the title of general counsel does not exist, but essentially similar functions are performed by solicitors or legal advisers.
Specifically, the general counsels of the Department of Energy and the Department of the Treasury are confirmed, as is the Department of State's legal advisor. The FBI is an element of the Department of Justice, which has a Senate confirmed Assistant Attorney General in the Office of Legal Counsel. The Defense Intelligence Agency [DIA], the National Security Agency [NSA], and the National Reconnaissance Organization [NRO] are all elements of the Department of Defense--which has its general counsel confirmed.
The CIA, as a result of its size and importance within the Federal Government, should be treated in the same manner as other departments, including those having national security responsibilities. The Senate Select Committee on Intelligence has taken the lead in the last few years in seeking to provide a clearer statutory framework for intelligence agencies--and this initiative is a logical part of this effort.
Mr. President, Senate confirmation of the CIA general counsel is not a new idea. Indeed, it has been recommended to the Senate several times over the last two decades.
For example, the Church Committee, in its final report in 1976, recommended that the CIA have a general counsel nominated by the President and confirmed by the Senate.
A similar recommendation in favor of Senate confirmation of the CIA general counsel was made by the congressional committees investigating the Iran-Contra affair in 1987. During the Iran-Contra affair, the CIA's general counsel drafted a retroactive Presidential finding to justify the Reagan administration's covert arms-for-hostages policy and provide after-the-fact authorization for CIA operations. This finding, in part, directed `the Director of Central Intelligence not to brief the Congress of the United States * * * until such time as I may direct otherwise.' The final version of this covert action finding was not reported to the Congress for almost
a year when public disclosure of the Iran-Contra affair made it impossible to continue to hide the finding from the intelligence committees.
Concerns about the working of the CIA General Counsel's Office were raised more recently.
Earlier this year, the staff of the Senate Select Committee on Intelligence completed an investigation of the intelligence community's role in the BNL-Atlanta affair. The committee staff report documented a number of instances where the performance of the CIA General Counsel's Office was deficient. The most egregious of all the shortcomings documented in this episode was the preparation and release of a letter by the CIA General Counsel's Office to the Department of Justice--a public letter which lawyers at the CIA subsequently acknowledged was incomplete and misleading. Essentially, the letter failed to acknowledge information that the CIA had in its possession which might well have been pertinent to a Federal sentencing hearing in Atlanta.
If not for the diligence of the Senate Select Committee on Intelligence and others in Congress who--unlike the American public--had access to enough secret information to recognize that the letter was misleading, this action might have gone unnoticed. Instead, the controversy over the letter led CIA back to its secret files, where it found even more information relevant to the BNL-Atlanta case that had never been disclosed to the court or even to Federal prosecutors.
The committee staff report also found that the CIA General Counsel's Office had been remiss in responding to the concerns of the presiding judge at the Atlanta hearing, Judge Marvin Shoob. In addition, the report also found shoddy staff work performed by the CIA General Counsel's Office in terms of responding to Justice Department requests--as well as ensuring that the CIA itself was meeting its obligations under applicable case law.
Undeniably, mistakes can occur in any office and errors in judgment can take place whether or not the head of the CIA General Counsel's Office is confirmed by the Senate. But I do think that this unfortunate episode underscores the importance of the functions the CIA General Counsel's Office performs on a daily basis. Not only does this office serve an important advisory function to the DCI, but the CIA General Counsel's Office is also the point of interface with the Department of Justice and the courts. It is therefore essential that the CIA have someone in this position who not only understands intelligence, but the law enforcement system and judicial process as well. Our best guarantee of attaining this objective is to make sure that the Senate has an opportunity to assess the CIA general counsel's qualifications through the confirmation process.
Mr. President, I believe that both the Iran-Contra and the BNL-Atlanta examples clearly demonstrate why it is important that the top legal office of the Central Intelligence Agency be fully accountable to the Congress and the American people through the Senate confirmation process. I am convinced that Senate confirmation of the CIA general counsel would make the individual holding that important office far more sensitive to the fact that the Congress shares both the power and the responsibility for our nation's security.
And when confronted with decisions such as whether to deliberately ignore the requirement to provide notification to the congressional intelligence committees or publicly release deceptive information, a CIA general counsel who has faced the scrutiny of the confirmation process would likely think twice before considering whether or not it is possible to safely disappear in the fog of unaccountability at the CIA.
Mr. President, it is important to note that on the infrequent occasions when a presidential nominee is rejected, it is often because the nominee is considered to lack the requisite professionalism for the position. Hence, the confirmation process tends to support professionals against any administration's efforts to place unqualified non-professionals into senior positions in the Federal Government.
Senate confirmation is a constructive means of enhancing public and congressional confidence in the senior leadership of the CIA. This is accomplished not only by ensuring that the nominee has the necessary qualifications for the job, but that the nominee is also firmly committed to the intelligence oversight laws and will be truthful, candid, and forthcoming in dealing with Congress.
In view of their responsibilities in supporting the National Security Council in sensitive areas of policy formulation, I believe that Senate confirmation of the CIA general counsel will ultimately serve to create confidence and rapport between the nominees and the legislative branch. Through the record established during confirmation, the nominee and the SSCI could clarify and establish a common understanding of the position's role and responsibilities, develop a constructive working relationship, and define the appropriate constraints on CIA activities. This process will go a long way toward avoiding problems as a result of misunderstandings, which in turn could lead to abuses of authority.
Mr. President, some might argue that the DCI should make his or her own selection for this position and that we should be wary of anyone vetted through the so-called political swamp of the White House nomination process. This highly dubious line of reasoning presupposes that DCI's will be infallible in making selections for senior positions at the CIA. A review of the CIA's history and senior CIA officials appointed to their positions by past Directors of Central Intelligence would result
in the inescapable conclusion that some of these individuals--ostensibly placed in their positions without the political taint of the confirmation process--have been far from divinely inspired choices.
Alternatively, I would note that today there are currently three officials at the CIA--Director Jim Woolsey, Deputy Director Bill Studeman, and Inspector General Fred Hitz--who have been vetted through the dreaded White House political swamp and survived the Senate confirmation process intact. All three of these fine public servants have proven themselves to be excellent in their respective positions out at the CIA--and none of them seems to be worse off from the Senate confirmation experience.
Some have argued that requiring Senate confirmation of a senior position at the CIA--or anywhere else in the Federal bureaucracy--somehow politicizes the office. In fact, just the opposite is true. The confirmation process can only block the President from appointing a particular individual--it cannot compel the nomination of anyone with a particular viewpoint preferred by the Senate.
As Alexander Hamilton stated in the Federalist Papers No. 66:
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It will be the office of the President to nominate, and with the advice and consent of the Senate to appoint. There will, of course, be no exertion of choice on the part of the Senate. They may defeat one choice of the Executive and oblige him to make another; but they cannot themselves choose--they can only ratify or reject the choice he may have made.
In other words, without a requirement for Senate confirmation, there is nothing to prevent the politicization of a senior Federal Government position by an administration. Indeed, Senate confirmation should do more to prevent politicization than to promote it. As Dr. Richard Betts of Columbia University has stated, `considering the difference between the power to appoint and the power to review the appointment, politicization comes from the Executive more readily than from Congress. If a President or * * * DCI wish to put unqualified political cronies in sensitive CIA positions, they can do so, as of now, without challenge.'
It should also be noted that the confirmation of senior officials in Government has traditionally worked to protect against the politicization of these positions, while failure to confirm has worked to protect the President's political prerogatives. For example, senior Government officials who are not confirmed--such as the White House Chief of Staff and the Assistant to the President for National Security Affairs--have been exempted from the confirmation process precisely to prevent Congress from interfering with the President's political control of these positions on the President's personal staff.
Indeed, Senate confirmation will help prevent politicizing the position of the CIA general counsel by raising the standards of this important post. Because the nominee must appear before the Senate Select Committee on Intelligence [SSCI], the nominee is more likely to be scrutinized carefully--by both the executive branch and the Congress--than otherwise. This process would help preclude a hasty or ill-considered appointment by a single individual--the DCI.
Requiring Senate confirmation of the CIA general counsel is no more likely to politicize the operation of the Central Intelligence Agency than would the existing requirement to confirm the DCI, the DDCI, and the inspector general.
Mr. President, I would also like to point out to my colleagues that under the legislation passed by our committee, the DCI--as well as the President--can remove the statutory CIA general counsel from office. Also, the committee report states specifically that the `establishment of the statutory position does not impair or affect the existing authority' of the DCI, and that the DCI should be afforded `substantial flexibility to decide from time to time what authorities to delegate and duties to assign to the CIA general counsel.'
The bill also stipulates a one-year period before the statutory CIA general counsel provision takes effect--allowing the Agency and the administration adequate time to take any necessary administrative and personnel actions for this transition to take place.
Mr. President, I strongly believe that accountability is the fundamental objective of congressional oversight of intelligence.
And intelligence oversight imposes a unique burden on the two congressional intelligence committees which serve as surrogates, not only for the Congress as a whole, but the American people. Because congressional oversight of the CIA and the rest of the intelligence community must necessarily be conducted in the black box of secrecy, the committees must demand accountability and possess the will to conduct thorough oversight. I would also point out to my colleagues that the CIA is the only intelligence agency over which the Senate Select Committee on Intelligence has sole and exclusive authorization and oversight jurisdiction in the Senate.
Before the two intelligence oversight committees were created in the mid-1970's, Congress conducted what I refer to as oversight by oversight of U.S. intelligence--preferring to know little more than it was told by the CIA. As one Senator stated some years ago: `It is not a question of reluctance on the part of CIA officials to speak to us. Instead, it is a question of our reluctance, if you will, to seek information and knowledge on subjects which I personally * * * would rather not have. * * *'
Mr. President, this is an attitude that this body can ill-afford, particularly in the postcold war era.
I am second to no one in my support for a strong, effective, and responsible CIA. Nevertheless, the Central Intelligence Agency, like any large bureaucracy, is capable of waste, abuse, mismanagement, and incompetence. Because the CIA is such a vast and secretive organization, it is essential that it be made fully accountable for its actions.
Intelligence activities are consistent with democratic principles only when they are conducted in accordance with the law and in an accountable manner to the American people through their duly elected representatives. I am convinced that the confirmation process is a constructive means of demanding accountability, thereby enhancing public and congressional confidence in the senior leadership of the CIA.
Senate confirmation of the CIA's general counsel will serve to strengthen the accountability of the CIA--and ultimately enhance the effectiveness of this important agency.
Mr. President, I urge my colleagues to support this bill as reported out of our committee.
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Mr. DeCONCINI. Mr. President, there are three additional amendments. I send them to the desk and ask for their immediate consideration and ask the three amendments be considered en bloc.
The PRESIDING OFFICER. The clerk will report the three amendments en bloc.
The legislative clerk read as follows:
The Senator from Arizona [Mr. DeConcini], for himself and Mr. Warner, proposes amendments en block numbered 1154, 1155, and 1156.
Mr. DeCONCINI. Mr. President, I ask unanimous consent that reading of the amendments be dispensed with.
The PRESIDING OFFICER. Without objection it is so ordered.
The amendments are as follows:
On page 11, after line 2, insert the following:
SEC. 304. REPORT ON INTELLIGENCE GAPS.
(a) Report.--The Director of Central Intelligence and the Secretary of Defense jointly shall prepare and submit by February 15, 1994, to the Select Committee on Intelligence, the Committee on Armed Services, and the Committee on Appropriations of the Senate, and to the Permanent Select Committee on Intelligence, the Committee on Armed Services, and the Committee on Appropriations of the House of Representatives a report described in subsection (b).
(b) contents of Report: The report required by subsection (a) shall--
(1) identify and assess the critical gaps between the information needs of the United States Government and intelligence collection capabilities, to include the identification of topics and areas of the world of significant interest to the United States to which the application of additional resources, technology, or other efforts would generate new information of high priority to senior officials of the United States Government;
(2) identify and assess gaps in the ability of the intelligence community (as defined in section 3(4) of the National Security Act of 1947) to provide intelligence support needed by the Armed Forces of the United States and, in particular, by the commanders of combatant commands established under section 161(a) of title 10, United States Code; and
(3) contain joint recommendations of the Director of Central Intelligence and the Secretary of Defense on appropriate means, to include specific budgetary adjustments, for reducing or eliminating the gaps identified under paragraphs (1) and (2).'
Page 2, line 2, insert the following after the item relating to Section 303 (as added by committee amendment No. 2):
`Sec. 304. Report on Intelligence Gaps.'
On page 11, after line 2, insert the following:
SEC. 303. TEMPORARY PAY RETENTION FOR CERTAIN FBI EMPLOYEES.
(a) The Federal Employees Pay Comparability Act of 1990 as contained in Section 529 of the Treasury, Postal Service and General Government Appropriations Act, 1991 (Public Law 101-509) is amended by striking section 406 and inserting in lieu thereof:
`SEC. 406. FBI NEW YORK FIELD DIVISION.
`(a) No employee of the Federal Bureau of Investigation assigned to the New York Field Division prior to September 29, 1993 in a position covered by the demonstration project created by section 601 of the Intelligence Authorization Act for Fiscal Year 1989 (Public Law 100-453), as amended, shall have his or her total pay reduced as a result of the termination of the demonstration project, unless that employee ceases or has ceased at any time after that date to be employed in a position covered by the demonstration project: Provided, That, beginning on September 30, 1993, any periodic payment under section 602(a)(2) of the Intelligence Authorization Act for Fiscal Year 1989 for any such employee shall be reduced by the amount of any increase in basic pay under title 5, United States Code, including an annual adjustment under section 5303, locality-based comparability payment under section 5304, initiation or increase in a special pay rate under section 5305, promotion under section 5334, periodic step increase under section 5335, merit increase under section 5404, or other increase to basic pay under any provision of law.'.
`(b) The amendment made by subsection (a) shall take effect as of September 30, 1993, and shall apply to the pay of employees to whom the amendment applies that is earned on or after that date.'.
(b) On page 2, line, insert in the table of contents the following after the item relating to section 302--
`Sec. 303. FBI New York Field Division.'
On page 11, after line 2, insert the following:
SEC. 303. AMENDMENT TO SECTION 307 OF THE NATIONAL SECURITY ACT AND RATIFICATION OF A PAST TRANSACTION.
(a) Amendment to Section 307 of the National Security Act of 1947: Section 307 of the National Security Act of 1947 is amended by striking `provisions and purposes of this Act' and inserting in lieu thereof `provisions and purposes of this Act (other than the provisions and purposes of sections 102, 103, 104, 105 and titles V, VI, and VII)'.
(b) Ratification of Funding Transactions.--Funds obligated or expended for the Accelerated Architecture Acquisition Initiative of the Plan to Improve the Imagery Ground Architecture based upon the notification to the appropriate committees of Congress by the Director of Central Intelligence dated August 16, 1993 shall be deemed to have been specifically authorized by the Congress for purposes of Section 504(a)(3) of the National Security Act of 1947.
On page 2, line 2, insert in the table of contents the following after the item relating to section 302--
Sec. 303. Amendment to Section 307 of the National Security Act of 1947 and Ratification of Past Transaction.
Mr. DeCONCINI. Mr. President, I am offering three committee amendments to S. 1301, numbers 1154, 1155, and 1156, respectively. Let me briefly explain the purpose of each amendment.
Amendment No. 1155 provides that employees of the FBI Field Division in New York who were receiving certain retention payments as part of a previously authorized demonstration project will not suffer a loss in pay as a result of the termination of that project. Senator D'Amato, an outstanding member of our committee, first brought this matter to our attention and has taken the lead in developing the amendment I offer today.
Let me elaborate briefly. Pursuant to authority contained in the Intelligence Authorization Act for fiscal year 1989, a 5-year demonstration project was established in the FBI Field Division in New York whereby employees assigned to that division received a one-time payment to relocate to the New York office and thereafter received periodic payments up to 25 percent of their basic pay so long as they remained employed. The demonstration project terminated on September 29, 1993.
The Department of Justice and Office of Personnel Management recently concluded that in the absence of new legislation, the payments being made under the demonstration project must terminate on the date the project itself terminates; that is, September 29, 1993.
In order to avoid what in some cases would be a considerable loss of pay by individuals already receiving that pay, the administration has requested that the Congress provide authority to continue the payments under the project to those who have been receiving them. However, it has agreed that in the interests of fairness the basic pay of such employees should not rise in the future until the level of payments being made under the demonstration project has been surpassed as a result of incremental increases in the compensation of the employees concerned.
This is the policy embodied in the committee amendment. It has the approval of the administration and has been cleared with the Committee on Appropriations. It is a sensible compromise which will ensure that FBI employees in New York who have undertaken financial obligations in anticipation that the payments under the demonstration project would continue beyond the demonstration project itself are not unfairly penalized. I urge the adoption of this amendment.
Amendment No. 1154 would require a joint report from the Director of Central Intelligence and the Secretary of Defense to the appropriate committees of the Congress identifying gaps in U.S. information needs and the intelligence collection capabilities of the United States available to satisfy them. Where possible, the report will also include actions recommended to eliminate or close the gaps to satisfy the requirements of both civilian policymakers and military commanders in the field.
Senator Danforth was instrumental in developing this proposal, and, once this analysis has been completed, I believe it will provide a very valuable basis to assess future budget requests. I commend the Senator for his initiative.
The third and final amendment, No. 1156, has two purposes.
The first is to amend section 307 of the National Security Act of 1947, which provides a general authorization for any funds necessary and appropriate to carry out the provisions and purposes of the act, to make clear that such general authorization does not satisfy the requirement of section 504 of the National Security Act of 1947 that there be a specific authorization by the Congress in order for intelligence agencies to obligate or expend funds available to them. Subsection (a) of the amendment addressed this issue.
The second purpose of this amendment is to ratify a previous transaction notified to the appropriate committees of the Congress as satisfying the requirement of section 504 for a specific authorization by the Congress. This transaction involved the obligation of certain funds for an accelerated architecture acquisition initiative of the plan to improve imagery ground architecture, which was notified by the Director of Central Intelligence to the appropriate committees of the Congress on August 16, 1993. The proposed transaction met with no substantive objection from the committees concerned. The purpose of subsection (b) of the amendment is to deem this transaction, as a matter of law, as satisfying the requirement of section 504(a)(3) of the National Security Act of 1947.
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Mr. WARNER. Mr. President, as I have stated, I support passage of S. 1301 with the Armed Services Committee amendment and the three Intelligence Committee amendments. Each of the three Intelligence Committee amendments addresses a problem with U.S. intelligence activities that the Intelligence Committee has examined. One deals with pay retention for certain FBI personnel in New York, one requires a report on gaps in U.S. intelligence, and one amends section 307 of the National Security Act and ratifies a past funding transaction so that it complies with section 504 of the National Security Act of 1947. These amendments address satisfactorily the problems the committee has examined, and these select committee amendments are accepted.
The Intelligence Authorization Act for fiscal year 1988 (Public law 100-453) authorized a 5-year demonstration project to provide retention bonuses and mobility payments to certain employees of the Federal Bureau of Investigation's New York Field Office, because of concerns about attracting and retaining talented FBI counterintelligence personnel for service in the expensive New York area. Congress has since addressed on a Governmentwide basis pay for Federal employees in high-cost-of-living areas, with enactment of the Federal Employees Pay Comparability Act (Public Law 101-509) and other legislation relating to Federal employee locality pay.
The demonstration project expired on September 29, 1993. Absent further legislation, the FBI personnel covered by the demonstration project would receive a cut in pay, compared to what they had received under the demonstration project. Because FBI headquarters had innocently but erroneously represented to such employees to believe that the employees would continue to receive the higher pay, and the employees relied on such representations, the committee believes that legislation to address the employees' pay is appropriate.
The question has arisen of how best to provide relief to the affected FBI employees, coordinate it with implementation of the new legislation regarding locality pay, and avoid pay inequities among similarly situated Federal employees. The Department of Justice proposed that current FBI personnel who were receiving the special pay and benefits provided under the demonstration project continue to receive them until the pay and benefits
provided under other laws equals the amount payable to those personnel covered by the demonstration project. The demonstration project would end now in the sense that no one new could qualify for benefits under the demonstration project, but those individuals who were receiving benefits under the demonstration project at the time of its expiration would continue to receive the benefits as long as they continue to meet the criteria that applied under the demonstration project.
The Senator from New York [Mr. D'Amato], a distinguished member of the Select Committee on Intelligence, has the committee's appreciation for bringing the pay situation of FBI employees in New York to the committee's attention and for his origination of the committee amendment to correct the situation.
To manage effectively the resources of the United States devoted to intelligence activities, and indeed to decide what that level of resources should be, the United States must assess what it needs to know, what it does know, and what it does not know about events abroad. To assist the Secretary of Defense, the Director of Central Intelligence, and the Congress in allocating resources for intelligence, the committee is proposing an amendment to the bill to require an executive branch report assessing the gaps in U.S. intelligence capabilities and recommending how to address those gaps.
The Senator from Missouri [Mr. Danforth], a distinguished member of the Select Committee on Intelligence, has originated this amendment to ensure that the executive and legislative branches have the information they need to address funding for U.S. intelligence activities effectively next year and in the years beyond.
Section 307 of the National Security Act of 1947 contains a general statement that there are authorized to be appropriated such sums as may be necessary and appropriate to carry out the provisions and purposes of the act. Such general language does not suffice to meet the requirements in section 504 of the National Security Act that, to obligate or expend funds for an intelligence or intelligence-related activity, such funds must be specifically authorized by the Congress, which means that the amount of funds was authorized by statute to be appropriated for that activity. To make that point explicit in section 307, the amendment excludes from the scope of section 307 the intelligence provisions of the National Security Act of 1947.
The committee amendment also ratifies a transaction proposed to the committee by the Director of Central Intelligence on August 16, 1993, relating to the accelerated architecture acquisition initiative of the plan to improve the imagery ground architecture. The committee's review of the proposed transaction brought to light a need for changes to section 504 of the National Security Act to allow this transaction and others like it to go forward under the law.
The committee plans to proceed with separate legislation to make the necessary changes to section 504 to take care of the problem permanently. The committee understands, however, that the Director of Central Intelligence went forward with the funding transaction proposed by the letter of August 16, 1993; the proposed amendment is necessary to ratify that transaction, which otherwise would run afoul of section 504 of the National Security Act. The committee amendment ratifies explicitly the transaction proposed by the Director by letter dated August 16, 1993, because the review of that transaction first brought to the committee's attention that the phrase `specifically authorized by the Congress' in section 504(a)(3) of the National Security Act, like section 504(a)(1), required enactment of an authorization statute and could not be satisfied by a scheme of notification to
and concurrence by committees of the Congress. Transactions prior to the August 16, 1993, action which were undertaken based on the mistaken, but good faith, belief that the phrase `specifically authorized by the Congress' in sections 504 (a)(1) and (a)(3) of the National Security Act could be satisfied by notification to and concurrence by committees of the Congress also are intended to be deemed ratified, which protects certifying and disbursing officers.
Section 504 of the National Security Act of 1947 currently allows obligation and expenditure of appropriated funds for intelligence activities only in three situations. First, the appropriated funds may be used for an intelligence or intelligence-related activity when such use of the funds for the activity has been `specifically authorized by the Congress,' a phrase defined in the statute. Second, the appropriated funds may be used for an intelligence or intelligence-related activity when the funds involved are funds appropriated for the CIA Reserve for contingencies and the congressional intelligence and appropriations committees have been notified. Third, the appropriated funds may be used for an intelligence or intelligence-related activity if they were specifically authorized by Congress for a different activity and the activity for which they are instead proposed to be used is of higher priority, is based on unforeseen requirements, and the congressional intelligence and appropriations committees have been notified.
The phrase `specifically authorized by the Congress' as defined and used in sections 504 (a)(1) and (a)(3), means specifically authorized by statute, a requirement that cannot be satisfied by notification to and concurrence by committees of Congress. That interpretation is mandated under the constitutional principles enunciated in INS v. Chadha, 462 U.S. 919 (1983), is supported by the text of the very legislative provision originally adding the provision to the National Security Act, is supported by the legislative history reflected in a statement on the House floor at the time of the adoption of the final version of the legislation in 1985, and is supported by the consistent practice of the Congress since then in enacting waivers of section 504(a)(1) as part of appropriations continuing resolutions enacted at the close of fiscal years when the annual intelligence authorization bills had not yet been enacted. My statement upon introduction of the Intelligence Authorization Process Adjustment Act (S. 1578), printed in the Congressional Record of October 21, 1993, sets this matter forth in further detail.
Provisions of section 504 require notification to appropriate committees of Congress of certain proposed funding transactions. Those provisions were enacted with
the understanding that, as a matter of comity between the executive and legislative branches, the concurrence of the committees will be obtained before certain proposed transactions go forward. The statutory requirements in Section 504 for advance notification to the committees of Congress are consistent with the Constitution (see Sibbach v. Wilson, 312 U.S. 1, 24 (1941)). Any theory that a statutory requirement for notification of the congressional intelligence committees in advance of the use of funds for intelligence or intelligence-related activities could in any way be construed as an unconstitutional condition has been considered and is rejected. Such a theory was propounded in the erroneous and recently published July 31, 1989 advisory opinion, addressing never-enacted legislation, by the Assistant Attorney General of the Office of Legal Counsel concerning notification of the intelligence committees of use of funding for certain CIA activities.
In proceeding with the amendment to section 307 of the National Security Act and with the ratification of the transaction proposed on August 16, 1993, the committee is aware that there remains important unfinished business. The committee needs to pursue legislation to amend section 504 of the National Security Act to allow--after statutory notification to congressional committees, and with a nonstatutory, continued understanding that the concurrence of the committees will be awaited--use of funds for intelligence activities in excess of or in the absence of authorization by statute of appropriation of those amounts for those activities. A similar regime of statutory notification and non-statutory concurrence should apply when funds appropriated for one activity are intended to be used for a different intelligence or intelligence-related activity. Accordingly, the committee should pursue legislation to amend section 504 to achieve three goals: First, ensure compliance with the Constitution and laws of the United States in the funding and conduct of intelligence activities; second, preserve the Congress' power of the purse with respect to these sensitive activities; and third, ensure sufficient flexibility for the executive branch in the conduct of intelligence activities.
I urge the adoption of the three intelligence committee amendments to S. 1301.
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Mr. D'AMATO. Mr. President, I want to begin by commending the senior Senator from Arizona, the very able chairman of the Intelligence Committee and my good friend, for his inclusion in the committee amendment of an amendment to correct a technical problem with statute language relating to the end of the FBI's New York demonstration project. I also want to thank our vice chairman, my friend, the distinguished senior Senator from Virginia, for his support and assistance with this amendment.
This amendment is very simple. What it does is provide for pay retention for FBI personnel assigned to the New York Field Division after the end of the New York demonstration project.
Without this amendment, FBI employees assigned to the New York field division face real pay cuts--let me say this again--real pay cuts--of 8 percent for special agents, of 17 percent for GS-grade support personnel, and of 25 percent for Wage Grade support personnel.
This situation arises because the New York demonstration project, which was established by section 601 of the Intelligence Authorization Act of 1989, expires on October 23, 1993. The demonstration project was created because of the difficulty the FBI was experiencing in recruiting new personnel or transferring personnel into the New York Field Division, due primarily to the very high cost of living in the New York City metropolitan area.
As a result of this problem, the FBI could not fully staff the New York Field Division, endangering important investigations and operations. Congress responded to this problem by authorizing the FBI to pay $20,000 lump sum payments to FBI special agents who accepted reassignment to the New York Field Division for a 3-year tour of duty. We also authorized periodic payments of an additional 25 percent of basic pay to such personnel.
The Federal Bureau of Investigation informed us that they were having similar difficulty with support personnel, so we expanded the demonstration project to include all personnel assigned to the New York Field Division. We did this when we adopted section 601 of the Intelligence Authorization Act of 1990.
The New York demonstration project was intended to meet this critical need. In addition, it was intended to be a prod to the Federal personnel management structure to address the hardships high cost of living areas posed to Federal employees across the Nation. With passage of the Federal Employees Pay Comparability Act, Public Law 101-509, in 1990, a structure was established to provide for locality pay for Federal employees in high cost-of-living areas.
The New York demonstration project worked. It dramatically reduced attrition and made the New York Field Division an attractive assignment for experienced special agents and enabled the division to recruit and hire the specialized support personnel some of its operations require.
Mr. President, I ask that the executive summary of the August 1993 `Fourth Annual Assessment of the FBI's New York Demonstration Project,' published jointly by the U.S. Office of Personnel Management and the Federal Bureau of Investigation, be printed in the Record at the end of my remarks.
The PRESIDING OFFICER. Without objection, it is so ordered.
(See exhibit 1.)
One provision of this act, section 406, contained language that the FBI thought would protect the personnel receiving New York demonstration project special pay once the project ended. Because this pay retention provision was adopted, no FBI employee had reason to believe that he or she might face a very serious real cut in pay when the project ended.
Many FBI employees signed mortgages, bought cars, and made college plans for their children based upon the level of pay they were receiving under the New York demonstration project and that they thought had been guaranteed by passage of section 406 of FEPCA.
However, this August, the Office of Personnel Management and the Department of Justice Office of Legal Counsel concluded that section 406 did not, in fact, grandfather these employees' pay. The FBI was told that when the New York demonstration project terminated by operation of section 601(b) of the statute that created it, the FBI had no legal authorization to continue to pay former demonstration project pay recipients at their former pay rates.
Mr. President, this situation is thoroughly discussed in an August 23, 1993, memorandum from Mr. Walter Dellinger, Acting Assistant Attorney General, to Mr. Joseph R. Davis, Assistant Director, legal counsel of the Federal Bureau of Investigation.
I ask unanimous consent that this memorandum be printed in the Record at the end of my remarks.
Accordingly, the FBI has asked for legislative assistance to address this situation. Attorney General Reno, the Office of Personnel Management, and the Office of Management and Budget have declared that seeking such a legislative remedy is administration policy.
Mr. President, what we have here is an appeal to equity and fairness. If we do not pass this amendment, FBI special agents and support personnel investigating the World Trade Center bombing and the Sheik Rahman's Islamic Fundamentalist terror network will be in danger of having their homes foreclosed upon, their cars repossessed, and their children forced to leave school.
Finally, this amendment only grandfathers the pay levels FBI New York Field Division personnel are now receiving. The demonstration project itself still ends on October 23, 1993. After that date, no new personnel will be entitled to receive either the lump sum payment or the periodic payments. Only the total level of pay will be protected for persons already receiving the periodic payments.
Mr. President, the language of the amendments provides that increases in all other statutorily authorized pays--including promotions, step increases, and cost of living increases--will be offset against payments under this grandfather clause.
What this means is that every person now receiving New York demonstration project pay will effectively be under a pay cap until the combination of the total increases from these other pay provisions exceeds the amount of New York demonstration project payments. Only then will they be able to receive a higher level of pay.
Mr. President, I ask my colleagues to vote for this amendment. I know my colleagues well enough to know that they will not thank the very law enforcement personnel who took great personal risks and worked long hours to break the World Trade Center bombing case and the Islamic Fundamentalist terrorist ring cases by cutting their pay.
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In September 1988, President Reagan signed the Intelligence Authorization Act, Fiscal Year 1989, authorizing the New York Demonstration Project. The demonstration project permits lump-sum mobility payments of $20,000 upon directed assignment to the New York Office for those employees who sign a three-year service agreement, relocate from a different geographical area, and agree to reside within approximately 50 miles of the office. It also provides retention allowances of 25 percent of basic pay to New York Office employees. Originally, demonstration project allowances and payments were provided to all Special Agents and approximately 35 percent of the support employees in the office. In November 1989, pursuant to Public Law 101-193, all employees of this division became eligible for project payments. Retention allowances are paid biweekly, but are not considered to be part of basic pay. This report addresses the fourth year of the demonstration project, covering the period of October 1991 through September 1992.
The cost of the project for Fiscal Year 1992 was $13,258,084, $1.3 million less than projected due to reductions in retention payments made to offset geographic pay adjustments for law enforcement officers and interim geographic adjustments for all other employees. Total project costs to date are $63,642,948; estimated costs for Fiscal Year 1993 are comparable to those of Fiscal Year 1992 and are projected to be $13,254,594.
During the time period addressed by this report, the FBI was unexpectedly confronted with two significant organizational challenges which affected the administrative operations of the New York Office. First, of the employees predicted to separate from the FBI during this fiscal year (due to resignations or retirements), only 25-30 percent elected to do so and attrition was significantly less then expected. Agency-wide, the FBI exceeded its authorized target staffing level by more than 700 employees and a general hiring freeze was imposed in May of 1992. To complicate matters further, in response to changes in the geopolitical arena associated with the end of the cold war, the Department of Justice mandated a shift in program emphasis, requiring the FBI to reallocate some of its resources away from foreign counterintelligence work to violent crime matters. The impact of the hiring freeze and the shift in program emphasis on the New York Office are addressed in this report.
Staffing: Due to policy changes concerning target staffing level allocations for Special Agents assigned to the New York Office, they began Fiscal Year 1993 one percent over their authorized staffing level; prior to the project, staffing levels ranged from six to 12 percent below authorized levels.
Resignations: Since the project was implemented, Special Agent resignations have declined by 98 percent, from 41 to one. During each of the three years prior to the project, an average of eight Special Agents resigned annually upon receiving transfer orders to New York; since the project began, only three Special Agents have resigned under transfer.
Tenure: Average tenure of Special Agents assigned to this office has now been increased by 19 percent or 16 months. Supervisory tenure also increased by an average of a year and a half.
Transfers: Prior to the demonstration project there were no transfers of senior Special agents into this office as their Office of Preference. Since project inception, there have now been 45 such transfers. Additionally, the presence of Newark Special Agents on this list has now declined, returning to predemonstration project levels, due largely to the number of Office of Preference transfers into the New York Office already granted to Newark Special Agents, as well as the provision of a 16 percent Special Pay Adjustment for Law Enforcement Officers for Special Agents assigned to Newark.
The support complement in the New York Office encompasses professional, administrative, technical, and clerical personnel who provide direct operational support to FBI Special Agents.
Staffing: During the first year of the project, approximately 65 percent of the support staff was excluded from the project and the office was five percent below its target staffing level. During the second and third years of the
project, when all employees were included, the office exceeded its authorized target staffing level by one percent. During the project's fourth year, due to increases in target staffing level allocations for support personnel, the office slipped below its authorized target staffing level by one percent.
Resignations: Support resignations have declined from 15 percent during the first year of the project to three percent in Fiscal Year 1992. Specifically, when only 35 percent of the support complement received project allowances in 1989, there were 120 support resignations. During the project's fourth year when all employees were included, resignations dropped to 23.
Tenure: As expected, due to hiring increases resulting from the provision of more competitive salaries, tenure was initially diluted. However, during the project's fourth year, tenure finally rose by 10 months or 11 percent.
In response to questions contained on the December 1992 attitude survey, the following data provides important insight into the perceptions of employees:
Ninety-five percent report strong satisfaction in working for the FBI (down slightly from 97 percent the previous year);
Eighty-nine percent report satisfaction with the amount of job security provided by employment with the FBI (down slightly from 90 percent the previous year);
Eighty-nine percent report their jobs are interesting, (the same as the previous year);
Seventy-nine percent believe their jobs provide personal satisfaction, (down slightly from last year);
Only eight percent of respondents indicated that they will look for outside employment during the next year (up slightly from the seven percent of respondents indicating such intentions on the 1991 survey);
Seventy-six percent of survey respondents believe they have good supervisors, (a one percent decrease from the previous year);
Seventy-six percent of respondents stated that the demonstration project has improved their standard of living (an increase of five percent); and
Thirty-four percent of survey respondents reported satisfaction with their salaries (up slightly from 33 percent).
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The fourth year of the demonstration project cost the FBI $13.3 million; $1.3 million less than initial projections due to the provision of additional compensation initiatives. To date, many of the primary objectives of the project have been successfully addressed. However, a downturn in the economy, resulting in fewer employment opportunities, and internal policy changes, such as the extension of the retirement ceiling, have quite likely impacted New York Office employees, making it difficult to specifically attribute recent positive changes in the office directly to this project.
Nevertheless, since the demonstration project began, the Special Agency resignation rate has declined by 98 percent and resignations of Special Agents under transfer to the New York
Office have been eliminated. At the beginning of Fiscal Year 1993, the New York Office was one percent over its Special Agent target staffing level. On the support side, the New York Office slipped to one percent below its support target staffing level for the first time since the project was extended to all employees. Additionally, support resignations dropped from 120 to 23 and sick leave usage held steady with the previous year's level.
Lastly, employee satisfaction with the FBI as an organization remained constant, as did satisfaction with job security and supervisory personnel. Although satisfaction with overall compensation remains low at 34 percent, it reflects a slight improvement over previously reported satisfaction levels. Overall, 88 percent of survey respondents believe they have meaningful work, 78 percent are satisfied with their current work assignments, and 76 percent of survey respondents believe the demonstration project has improved their standard of living.
Office of Legal Counsel,
Washington, DC, August 23, 1993.
Memorandum for Joseph R. Davis, Assistant Director, Legal Counsel, Federal Bureau of Investigation
Re: Construction of 406 of the Federal Employees Pay Comparability Act of 1990
This memorandum responds to your request for our opinion whether 406 of the Federal Employees Pay Comparability Act of 1990 (FEPCA), 104 Stat. 1427, 1467, 1
preserves extraordinary benefits payable under 601 of the Intelligence Authorization Act, Fiscal Year 1989, Pub. L. No. 100-453, Stat. 1904, 1911 (1988), as amended by Sec. 601 of the Intelligence Authorization Act, Fiscal Year 1990, Pub. L. No. 101-193, 103 Stat. 1701, 1710 (1989) (collectively, 601), even after expiration of 601's payment authority. We conclude that 406 does not preserve the benefits payable under 601 beyond the expiration of the latter provision.
Footnotes at end of article.
Section 601 establishes a demonstration project that attempts to improve recruitment and retention at the New York Field Division (NYFD) of the Federal Bureau of Investigation (FBI) by increasing the pay of NYFD employees. See H.R. Rep. No. 591(I), 100th Cong., 2d Sess. 11-12 (1988). Pursuant to Sec. 601, any FBI employee transferred to the NYFD receives a lump sum payment of up to $20,000, conditioned upon the employee's agreement to serve at least three years in that office. 601(a)(1). In addition, all employees in the NYFD receive periodic bonus payments of between 20% and 25% of their basic pay for the period covered by the bonus. 601(a)(2). Section 601(b) provides that these benefits will terminate five years after the program is established by the FBI. We understand from you that this date falls on September 30, 1993.
FEPCA institutes a system of pay adjustments for general schedule employees throughout the Federal government, including locality pay to accommodate the higher cost of living in certain areas. Under FEPCA, special agents in the NYFD currently receive a 16 percent premium over base pay to account for New York's higher cost of living. Similarly, support staff who receive pay under the general schedule receive an 8 percent premium. Support staff who receive pay under the federal wage system do not receive any premium. See FEPCA 101, 404, 104 Stat. at 1429-30, 1466; Exec. Order No. 12786, Schedule 9, 5 U.S.C. Sec. 5304 note.
Thus, 601 and FEPCA each provide extra pay for NYFD employees (except for wage employees who receive benefits under Sec. 601 but not FEPCA). FEPCA's 406, however, instructs the Office of Personnel Management (OPM) to coordinate the two programs to ensure that their payments are not cumulated:
Notwithstanding [601], as amended, the Office of Personnel Management shall reduce the rate of periodic payments under such section as the provisions of this Act [FEPCA] are implemented: Provided, That no such reduction results in a reduction of the total pay for any employee of the New York Field Division of the Federal Bureau of Investigation. Notwithstanding such [Sec. 601], the Office of Personnel Management may make such periodic payments inapplicable to employees newly appointed to, or transferred to, the New York Field Division on or after January 1, 1992.
The main clause in the first sentence of 406 clearly does not authorize a continuation of Sec. 601 benefits beyond the life of the demonstration project. On the contrary, it expressly directs OPM to reduce 601 payments to NYFD employees as FEPCA is implemented. The second sentence of 406 also contemplates the curtailing of 601; it instructs that employees hired after January 1, 1992, need not receive any 601 benefits.
Notwithstanding this general thrust of 406, it has been suggested that the proviso in the first sentence might be intended as independent authority to `grandfather' current NYFD employees with continued extra pay at the Sec. 601 level. The suggestion is that the proviso forbids any reduction in the total pay of NYFD employees as a result of a reduction in 601 benefits. Therefore, because the termination of 601 benefits will otherwise cause a reduction in the total pay of NYFD employees (because FEPCA's benefits are lower and also do not extend to wage employees), it is urged that the proviso operates to authorize continued pay at the 601 level.
This suggestion misconstrues the purpose of the proviso. As indicated above, the main clause of 406 directs OPM to reduce Sec. 601 payments in response to FEPCA. That clause, however, does
not specify by how much the payments are to be reduced. It is the proviso that limits OPM's discretion in this regard. The proviso precludes any reduction of 601 benefits that `results in a reduction of the total pay for any employee of the [NYFD].' In effect, this means that OPM may not reduce Sec. 601 benefits by more than one dollar for every dollar introduced under FEPCA; if it did, an employee's total pay would be reduced, in violation of the proviso. Thus, for each reduction in 601 payments implemented pursuant to the main clause of 406, the proviso caps the reduction at the amount of FEPCA dollars that the employee receives, which prevents any net loss of pay.
It must be understood that the proviso's protection applies only with respect to OPM's reduction of 601 benefits pursuant to Sec. 406. This much is established by the phrase, `no such reduction,' which unmistakably links the proviso's operation with the preceding clause. See also 2A N. Singer, Sutherland Statutory Construction 47.08, 47.09 (5th ed. 1992) (in general a proviso should be strictly construed to relate to the enactment of which it is part). In this case, the reduction of pay will occur as a result of the winding down of 601's internal clock, and not pursuant to 406. Thus, the proviso will not be triggered. Accordingly, 406 cannot be said to authorize continued extra pay at the 601 rate. 2
Please let us know if we may be of further assistance.
Walter Dellinger,
Acting Assistant Attorney General.
1 FEPCA was enacted as Sec. 529 of the Treasury, Postal Service and General Government Appropriations Act, 1991, Pub. L. No. 101-509, 104 Stat. 1389 (1990). All references to provisions of FEPCA in this memorandum will cite the internal section numbers and corresponding pages in the statutes at large.
2 We can find no references in the legislative history of FEPCA (nor were any presented to us) to suggest that Sec. 406 was intended to continue 601 benefits beyond their natural span.
Mr. DANFORTH. The amendment I have originated relating to intelligence gaps is designed to accomplish one simple task: To inform members of congressional committees responsible for the intelligence budget of what policymakers and warfighters most want to know but are unable to learn with existing intelligence resources. A clear understanding of our intelligence gaps--ranked according to our national security priorities--is a prerequisite to any responsible sizing of our intelligence and defense budgets.
Currently each major intelligence agency provides a congressional budget justification book outlining proposed initiatives for the next fiscal year. These books also suggest the enormous accomplishments which the past year's efforts have secured. Such agency-by-agency review of programs, systems and architectures made sense during the Cold War; the adversary was well understood and the threat it posed was of an evolutionary kind.
Yet in today's world, threats are likely to develop and dissipate quickly. Strategic plans and their attending security requirements fluctuate. We must not wait for war, an unexpected nuclear explosion or new terrorist attack to clarify the deficiencies in our collection capabilities. We must anticipate them and we must end them before they tie our hands or cost us lives.
To accomplish this end, the executive branch must help Congress understand in concrete terms what the intelligence community is not good at but should be. Congress needs to know when and how changing national security priorities change intelligence collection requirements and stretch our capabilities across agencies and programs. Congress must also be convinced that any gaps--real or impending--will be efficiently addressed. What requirements do the huge amounts of resources, labeled only as base funds, fulfill? What gaps in information justify new resource expenditures in which agency's programs and why? How do we know resources cannot be transferred from other accounts?
This amendment simply requires the Director of Central Intelligence and the Secretary of Defense to present to Congress by March of next year, a report on the key gaps in our intelligence collection capabilities, ranked according to policy priorities. This report will include an assessment of how next fiscal year's budget submission affects or closes those gaps and, when appropriate, why new appropriations must be sought.
Fortunately, the DCI has just approved a refined requirements process which will capture information on policy needs and collection capabilities for budgeting purposes. Moreover, the National Intelligence Council is productively engaged in systematic review and evaluation of our national estimates so that these gaps can be identified and corrected as efficiently as possible. I heartily endorse these efforts and hope that they are fully implemented.
This amendment will ensure that the appropriate congressional committees are fully apprised of the results of these new evaluative processes within the context of our annual budgetary reviews. If the results of these new initiatives are as significant as I expect them to be, the report called for in this bill will become a useful annual instrument for illuminating and measuring our intelligence priorities.
The PRESIDING OFFICER. The question is on agreeing to the amendments en bloc.
The amendments (Nos. 1154, 1155, and 1156) were agreed to en bloc.
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Mr. WARNER. Mr. President, I move to reconsider the vote by which these amendments were agreed to.
Mr. DeCONCINI. I move to lay that motion on the table.
The motion to lay on the table was agreed to.
Mr. DeCONCINI. Mr. President, I do want to say that the support that we have had from the vice chairman is appreciated by this Senator. He and I have had some disagreements on where we should go with national intelligence. But there is no one for whom I have more respect or who knows more about armed services and the defense of this country than the Senator from Virginia, who has also served this country with a distinguished career as Secretary of the Navy.
We have forged what I believe is a good bill. It is not perfect, by any means, but it approaches the intelligence necessities here for our national security in such a way that I believe the national intelligence agencies can provide the necessary information that is necessary for our national security. I feel that without the Senator from Virginia we would not be here today. We had a long time getting this bill up. I am glad the Senator was able to help me in that capacity.
I also want to thank the staff on both the minority and majority sides for their long, long efforts in putting this together.
Mr. President, under the previous order, the only amendment to be offered is a sense-of-the-Congress amendment to be offered by the Senator from Ohio [Mr. Metzenbaum] calling for disclosure of the intelligence budget. Under the previous order, debate on the Metzenbaum amendment is limited to 2 hours and 10 minutes, with 75 minutes being controlled by the Senator from Ohio, 45 minutes controlled by the Senator from Virginia, and 10 minutes for the Senator from Pennsylvania [Mr. Specter].
I am hopeful, Mr. President, that we will not use all this time, because I think this subject matter has been discussed at some length, but I know the Senator from Ohio feels very strongly and wants to go into the background of this.
Mr. WARNER. Mr. President, if I may just join my colleague and express my appreciation for his personal comments here. I certainly share those sentiments with respect to the Senator from Arizona.
I look forward to next year. We have a very fine committee under our joint leadership. I think we achieved the Senate's wishes in terms of our Nation's intelligence.
Mr. DeCONCINI. I yield the floor.
The PRESIDING OFFICER. The Senator from Ohio is recognized.
Mr. METZENBAUM. Mr. President, on behalf of myself, Mr. Boren, Mr. Murkowski, Mr. Inouye, Mr. Moynihan, Mr. Durenberger, Mr. Leahy, Mr. Bumpers, and Mr. Wofford, I send an amendment to the desk and ask for its immediate consideration.
The PRESIDING OFFICER. The clerk will report.
The assistant legislative clerk read as follows:
The Senator from Ohio [Mr. Metzenbaum], for himself, Mr. Boren, Mr. Murkowski, Mr. Inouye, Mr. Moynihan, Mr. Durenberger, Mr. Leahy, Mr. Bumpers, and Mr. Wofford, proposes an amendment numbered 1157.
Insert at the appropriate point the following new section:
`SEC. . SENSE OF CONGRESS REGARDING DISCLOSURE OF ANNUAL INTELLIGENCE BUDGET.
`It is the sense of Congress that, in each year, the aggregate amount requested and authorized for, and spent on, intelligence and intelligence-related activities should be disclosed to the public in an appropriate manner.'.
The PRESIDING OFFICER. The Senator from Ohio.
Mr. METZENBAUM. Mr. President, I hope those who are cosponsors of this amendment will see fit to join us on the floor. There certainly will be time available for them if they wish to be heard.
This is just a minor amendment that Members of the Senate should readily support. Although it is a minor amendment, however, there is a significant reason for us to adopt it.
I am pleased to report that it is cosponsored by all the former chairmen of the Senate Intelligence Committee who still serve in the Senate; that is, Senators Inouye, Durenberger, and Boren; by all but one of the former vice chairmen of the committee who are still serving; that is, Senators Moynihan, Leahy, and Murkowski; and by Senators Bumpers and Wofford.
As my colleagues know, the budget that this bill addresses is, in fact, classified. Indeed, in the budget documents we receive from the executive branch, the figure for the total intelligence budget is classified `Secret.' In theory, pursuant to Executive Order 12356, this means that unauthorized disclosure of that number `reasonably could be expected to cause serious damage to the national security.'
But that does not mean, of course, that you cannot read estimates of that number. A witness before our committee once called it the worst-kept secret in Washington. And earlier this year, a Washington Post article based at least partly on an interview with the outgoing Director of Central Intelligence included a detailed chronology of the requests and the cuts in the fiscal year 1993 national and tactical intelligence budgets--to the nearest $100 million.
Yet, that budget figure is still classified. The American people may read leaks, estimates, or rumors on that figure. But nobody is permitted to tell them honestly and openly how much of their hard-earned money is being spent on U.S. intelligence programs.
I wish we could enact something much stronger than the amendment I have just introduced. But I regret to say that anything stronger than this would be opposed by the administration. And that is a great disappointment to this Senator and to many others in this body and in this country.
Two years ago, the version of the Intelligence Authorization Act for fiscal year 1992 that was passed by the Senate did contain language to require, beginning in 1993, disclosure of the total amount requested, authorized, and spent for intelligence and intelligence-related activities.
I had proposed that initiative in the Intelligence Committee markup, and I was very pleased that it gained the support both of our chairman, Senator Boren of Oklahoma, and of our vice chairman, Senator Murkowski of Alaska.
Both of those fine gentlemen have since left the Intelligence Committee, but both are cosponsors of the present amendment, for which I am most
grateful. Their steadfastness is a reminder that the issue of leveling with the American people has real continuity. It does not go away; rather, it lasts through the years.
President Bush opposed the Senate's language 2 years ago and threatened to veto the authorization bill over it. Faced with that threat, our House colleagues became nervous and the Committee of Conference settled on sense-of-Congress language instead. The language that was enacted was as follows:
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It is the sense of Congress that, beginning in 1993, and in each year thereafter, the aggregate amount requested and authorized for, and spent on, intelligence and intelligence-related activities should be disclosed to the public i