110th Congress Report
SENATE
2d Session 110-333
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INTELLIGENCE AUTHORIZATION ACT FOR FISCAL YEAR 2009
_______
May 8, 2008.--Ordered to be printed
_______
Mr. Rockefeller, from the Committee on Intelligence, submitted the
following
R E P O R T
together with
ADDITIONAL AND MINORITY VIEWS
[To accompany S. 2996]
The Select Committee on Intelligence, having considered an
original bill (S. 2996) to authorize appropriations for fiscal
year 2009 for intelligence and intelligence-related activities
of the United States Government, the Community Management
Account, and the Central Intelligence Agency Retirement and
Disability System, and for other purposes, reports favorably
thereon and recommends that the bill do pass.
CLASSIFIED ANNEX TO THE COMMITTEE REPORT
The classified nature of United States intelligence
activities precludes disclosure by the Committee of details of
its budgetary recommendations. The Committee has prepared a
classified annex to this report that contains a classified
Schedule of Authorizations. The Schedule of Authorizations is
incorporated by reference in the Act and has the legal status
of public law. The classified annex is made available to the
Committees of Appropriations of the Senate and the House of
Representatives and to the President. It is also available for
review by any Member of the Senate subject to the provisions of
Senate Resolution 400 of the 94th Congress (1976).
SECTION-BY-SECTION ANALYSIS AND EXPLANATION
The following is a section-by-section analysis and
explanation of the Intelligence Authorization Act for Fiscal
Year 2009 that is being reported by the Committee. Following
that analysis and explanation, the report sets forth Committee
comments on other matters. The report also includes additional
views offered by Members of the Committee.
TITLE I--BUDGET AND PERSONNEL AUTHORIZATIONS
Section 101. Authorization of appropriations
Section 101 lists the United States Government departments,
agencies, and other elements for which the Act authorizes
appropriations for intelligence and intelligence-related
activities for fiscal year 2009.
Section 102. Classified schedule of authorizations
Section 102 provides that the details of the amounts
authorized to be appropriated for intelligence and
intelligence-related activities and the applicable personnel
levels for fiscal year 2009 are contained in a classified
Schedule of Authorizations and that the classified Schedule of
Authorizations shall be made available to the Committees on
Appropriations of the Senate and House of Representatives and
to the President.
Section 103. Personnel level adjustments
Section 103(a) provides that the Director of National
Intelligence (DNI), with approval of the Director of the Office
of Management and Budget (OMB), may authorize employment of
civilian personnel in fiscal year 2009 in excess of the number
of authorized personnel levels by an amount not exceeding 5
percent (rather than the 2 percent in prior law) of the total
limit applicable to each Intelligence Community (IC) element
under Section 102. The DNI may do so only if necessary to the
performance of important intelligence functions. Any exercise
of this authority must be reported in advance to the
congressional intelligence committees.
Although prior intelligence authorization acts have not
defined IC personnel limits in terms of full-time equivalent
positions, the Committee has determined it would be consistent
with general governmental practice to do so. This will enable
IC elements to count two half-time employees as holding the
equivalent of one full-time position, rather than counting them
as two employees against a ceiling.
In the Administration's request for legislative authorities
as part of the Intelligence Authorization Act for Fiscal Year
2008, the DNI asked for broad authority to manage the IC within
the limits of available funds but without legislatively-fixed
civilian end-strength personnel limits. The DNI's submission to
the Committee stated that statutory ceilings have led to
increased use of contractors and have hindered the IC's
civilian joint duty, student employment, and National
Intelligence Reserve Corps programs.
During consideration of the fiscal year 2008 request, the
congressional intelligence committees learned that practices
within different elements of the Intelligence Community on the
counting of personnel are inconsistent, and include not
counting certain personnel at all against personnel ceilings.
The discretionary authority that is granted to the DNI in
Section 103(b) will permit the DNI to authorize Intelligence
Community elements to continue their existing methods of
counting, or not counting, part-time employees against
personnel ceilings, while ensuring that by the beginning of
fiscal year 2010 there is a uniform and accurate method of
counting all Intelligence Community employees under a system of
personnel levels expressed as full-time equivalents. To ensure
that the transition is complete by the beginning of fiscal year
2010, paragraph (4) of Section 103(b) provides that the DNI
shall express the personnel level for all civilian employees of
the Intelligence Community as full-time equivalent positions in
the congressional budget justifications for that fiscal year.
Section 103(c) provides additional flexibility when the
heads of IC elements determine that work currently performed by
contractors should be performed by government employees. It
does so by authorizing the DNI, with OMB's approval, to
authorize employment of additional full-time equivalent
personnel in a number equal to the number of contractor
employees currently performing that work. Any exercise of this
authority should be reported in advance to the congressional
intelligence committees and should be implemented in accordance
with a plan that includes adequate support for personnel. This
matter is further addressed in Section 305 of the bill.
Section 104. Intelligence Community Management Account
Section 104 authorizes appropriations for the Intelligence
Community Management Account (ICMA) of the DNI and sets the
authorized full-time or full-time equivalent personnel levels
for the elements within the ICMA for fiscal year 2009.
Subsection (a) authorizes appropriations of $696,742,000
for fiscal year 2009 for the activities of the ICMA. Subsection
(b) authorizes 944 full-time equivalent personnel for elements
within the ICMA for fiscal year 2009 and provides that such
personnel may be permanent employees of the Office of the
Director of National Intelligence (ODNI) or detailed from other
elements of the United States Government.
Subsection (c) provides that personnel level flexibility
available to the DNI under Section 103 is also available to the
DNI in adjusting personnel levels within the ICMA. Subsection
(d) authorizes additional appropriations and personnel for the
classified Community Management Account as specified in the
classified Schedule of Authorizations and permits the funding
for advanced research and development to remain available
through September 30, 2010.
TITLE II--CENTRAL INTELLIGENCE AGENCY RETIREMENT AND DISABILITY SYSTEM
Section 201. Authorization of appropriations
Section 201 authorizes appropriations in the amount of
$279,200,000 for fiscal year 2009 for the Central Intelligence
Agency (CIA) Retirement and Disability Fund.
Section 202. Technical modifications to mandatory retirement provision
of the Central Intelligence Agency Retirement Act
Section 202 updates the CIA Retirement Act to reflect the
Agency's use of pay levels rather than pay grades within the
Senior Intelligence Service.
TITLE III--GENERAL INTELLIGENCE COMMUNITY MATTERS
Subtitle A--Personnel Matters
Section 301. Increase in employee compensation and benefits authorized
by law
Section 301 provides that funds authorized to be
appropriated by this Act for salary, pay, retirement, and other
benefits for federal employees may be increased by such
additional or supplemental amounts as may be necessary for
increases in compensation or benefits authorized by law.
Section 302. Enhanced flexibility in non-reimbursable details to
elements of the intelligence community
Section 302 expands from one year to up to three years the
length of time that United States Government personnel may be
detailed to the ODNI on a non-reimbursable basis under which
the employee continues to be paid by the sending agency. To
utilize this authority, the joint agreement of the DNI and the
head of the detailing element is required. As explained by the
DNI, this authority will provide flexibility for the ODNI to
receive support from other elements of the IC for community-
wide activities where both the sending agency and the ODNI
would benefit from the detail.
Section 303. Enhancement of authority of the Director of National
Intelligence for flexible personnel management among the
elements of the intelligence community
Section 303 adds three subsections to Section 102A of the
National Security Act of 1947 (50 U.S.C. 403-1), all intended
to promote the DNI's ability to manage all the elements of the
IC as a single cohesive community.
Subsection 102A(s) enables the DNI, with concurrence of a
department or agency head, to convert competitive service
positions and incumbents within an IC element to excepted
positions. In requesting this authority, the DNI points out
that because of their unique intelligence, investigative and
national security missions, most IC elements are in the
excepted civil service. However, civilian employees in several
smaller IC elements are still covered under competitive service
rules. The ability to convert those to the excepted service
will enable the IC to maintain a system throughout the
Intelligence Community that is responsive to the needs of the
IC both for secrecy and the ability to respond quickly to
personnel requirements. Subsection 102A(s) additionally allows
the DNI to establish the classification and ranges of rates of
basic pay for positions so converted.
Subsection 102A (t) provides enhanced pay authority for
critical positions in portions of the IC where that authority
does not now exist. It allows the DNI to authorize the head of
a department or agency with an IC element to fix a rate of
compensation in excess of applicable limits with respect to a
position that requires an extremely high level of expertise and
is critical to accomplishing an important mission. A rate of
pay higher than Executive Level II would require written
approval of the DNI. A rate of pay higher than Executive Level
I would require written approval of the President in response
to a DNI request.
Subsection 102A(u) grants authority to the DNI to authorize
IC elements, with concurrence of the concerned department or
agency head, and in coordination with the Director of the
Office of Personnel Management, to adopt compensation,
performance management, and scholarship authority that have
been authorized for any other IC element if the DNI determines
that the adoption of such authority would improve the
management and performance of the intelligence community and
notice is provided to the congressional intelligence committees
no later than 60 days in advance of adoption of the authority.
Section 304. Delegation of authority for travel on common carriers for
intelligence collection personnel
Section 116 of the National Security Act of 1947 (50 U.S.C.
404k) allows the DNI to authorize travel on any common carrier
when it is consistent with IC mission requirements or, more
specifically, is required for cover purposes, operational
needs, or other exceptional circumstances. As presently
written, the DNI may only delegate this authority to the
Principal Deputy DNI or, with respect to CIA employees, to the
Director of the CIA.
Section 304 provides that the DNI may delegate the
authority in Section 116 of the National Security Act of 1947
to the head of any IC element. This expansion is consistent
with the view of the Committee that the DNI should be able to
delegate authority throughout the IC when such delegation
serves the overall interests of the IC.
Section 304 also provides that the head of an IC element to
which travel authority has been delegated is also empowered to
delegate it to senior officials of the element as specified in
guidelines issued by the DNI. This allows for administrative
flexibility consistent with the guidance of the DNI for the
entire IC. To facilitate oversight, the DNI shall submit the
guidelines to the congressional intelligence committees.
Section 305. Annual personnel level assessments for the intelligence
community
Section 305 adds a new oversight mechanism to the National
Security Act of 1947 (50 U.S.C. 413 et seq.) that requires the
DNI to conduct, in consultation with the head of the element of
the Intelligence Community concerned, an annual personnel level
assessment for each of the elements within the Intelligence
Community and provide those assessments with the submission of
the President's budget request each year.
The assessment consists of four parts. First, the
assessment must provide basic personnel and contractor
information for the concerned element of the Intelligence
Community. It requires that the data be compared against
current fiscal year, the upcoming fiscal year, and--for
government personnel--historical five-year numbers and funding
levels. Second, the assessment must include a written
justification for the requested funding levels. This
requirement is necessary to ensure that any personnel cost cuts
or increases are fully documented and justified. Third, the
assessment must contain a statement by the DNI that based upon
current and projected funding the concerned element will have
the internal infrastructure, training resources, and sufficient
funding to support the administrative and operational
activities of the requested personnel and contractor levels.
Finally, the assessment must contain a list of all contractors
that have been the subject of an investigation by the inspector
general of any element of the Intelligence Community during the
previous fiscal year or that are or have been the subject of an
investigation during the current fiscal year.
The Committee believes that the personnel level assessment
tool is necessary for the Executive branch and Congress to
fully understand the consequences of modifying the Intelligence
Community's personnel levels. This assessment process is
essential to the adoption and continuation of the personnel
level flexibility authority provided in Section 103. In the
aftermath of the terrorist attacks on September 11, 2001, the
Administration undertook sharp increases in personnel for the
Intelligence Community under the assumption that the
intelligence deficiencies leading up to the attacks resulted
from personnel shortfalls. Various external reviews have also
recommended more personnel. Since the attacks, Intelligence
Community personnel end strength has grown by about 20 percent.
The Committee originally supported personnel growth as a
way to strengthen intelligence collection, analysis, and
dissemination, but now questions its previous position for four
reasons: (1) the recent history of large scale personnel growth
indicates that personnel increases do not improve performance
commensurate with the cost; (2) the Administration is not
adequately funding the personnel growth it has planned; (3)
hiring additional personnel diverts fiscal resources from both
current mission and modernization needs; and (4) personnel
costs always increase, while budgets do not. Therefore, when
overall budgets do not keep pace with inflation and decline in
real terms, personnel costs as a percentage of the budget
increase each year and divert funds from operations and
modernization.
In February 2005, the Committee initiated an audit to
examine the full scope of activities and resources necessary to
support the Administration's projections for Intelligence
Community personnel growth during fiscal years 2006-2011. As a
result of this review and further study of the issue, the
Committee has concluded that increasing personnel without a
plan for enabling those personnel to work productively does not
prevent intelligence failures, or guarantee enhanced
performance. The Committee also concluded that the
Administration has not adequately funded its personnel growth
plan and that resources provided for personnel growth in some
cases have been at the expense of other programs.
Another concern of the Committee is the Intelligence
Community's increasing reliance upon contractors to meet
mission requirements. It has been estimated that the average
annual cost of a United States Government civilian employee is
$126,500, while the average annual cost of a ``fully loaded''
(including overhead) core contractor is $250,000. Given this
cost disparity, the Committee believes that the Intelligence
Community should strive in the long-term to reduce its
dependence upon contractors. The Committee believes that the
annual personnel assessment tool will assist the DNI and the
congressional intelligence committees in arriving at an
appropriate balance of contractors and permanent government
employees.
Subtitle B--Acquisition Matters
Section 311. Reports on the acquisition of major systems
Section 311 amends Section 102A(q)(C) of the National
Security Act of 1947 (50 U.S.C. 403-1(q)(C)) to require
additional detail in annual reports currently required from the
DNI for each major system acquisition by an element of the
Intelligence Community.
Among other items, the annual reports must include
information about the current total acquisition cost for such
system, the development schedule for the system including an
estimate of annual development costs until development is
completed, the planned procurement schedule for the system,
including the best estimate of the DNI of the annual costs and
units to be procured until procurement is completed, a full
life-cycle cost analysis for such system, and the result of any
significant test and evaluation of such major system as of the
date of the submittal of such report.
Section 311 includes definitions for ``acquisition cost,''
``full life-cycle cost,'' ``intelligence program,'' ``major
contract,'' ``major system,'' and ``significant test and
evaluation.''
Section 312. Vulnerability assessments of major system
Section 312 adds a new oversight mechanism to the National
Security Act of 1947 (50 U.S.C. 413 et seq.) that requires the
DNI to conduct an initial vulnerability assessment and
subsequent assessments of every major system and its
significant items of supply in the National Intelligence
Program (NIP). The intent of the provision is to provide
Congress and the DNI with an accurate assessment of the unique
vulnerabilities and risks associated with each NIP major system
to allow a determination of whether funding for a particular
major system should be modified or discontinued. The
vulnerability assessment process will also require the various
elements of the Intelligence Community responsible for
implementing major systems to give due consideration to the
risks and vulnerabilities associated with such implementation.
Section 312 requires the DNI to conduct an initial
vulnerability assessment on every major system and its
significant items of supply proposed for the NIP prior to
completion of Milestone B or an equivalent acquisition
decision. The minimum requirements of the initial vulnerability
assessment are fairly broad and intended to provide the DNI
with significant flexibility in crafting an assessment tailored
to the proposed major system. Thus, the DNI is required to use
at a minimum, an analysis-based approach to identify
vulnerabilities, define exploitation potential, examine the
system's potential effectiveness, determine overall
vulnerability, and make recommendations for risk reduction. The
DNI is obviously free to adopt a more rigorous methodology for
the conduct of initial vulnerability assessments.
Vulnerability assessment should continue through the life
of a major system and its significant items of supply. Numerous
factors and considerations can affect the viability of a given
major system. For that reason, Section 312 provides the DNI
with the flexibility to set a schedule of subsequent
vulnerability assessments for each major system when the DNI
submits the initial vulnerability assessment to the
congressional intelligence committees. The time period between
assessments should depend upon the unique circumstances of a
particular major system. For example, a new major system that
is implementing some experimental technology might require
annual assessments while a more mature major system might not
need such frequent reassessment. The DNI is also permitted to
adjust a major system's assessment schedule when the DNI
determines that a change in circumstances warrants the issuance
of a subsequent vulnerability assessment. Section 312 also
provides that a congressional intelligence committee may
request the DNI to conduct a subsequent vulnerability
assessment of a major system.
The minimum requirements for a subsequent vulnerability
assessment are almost identical to those of an initial
vulnerability assessment. There are only two additional
requirements. First, if applicable to the given major system
during its particular phase of development or production, the
DNI must also use a testing-based approach to assess the
system's vulnerabilities. Obviously, common sense needs to
prevail here. For example, the testing approach is not intended
to require the ``crash testing'' of a satellite system. Nor is
it intended to require the DNI to test system hardware.
However, the vulnerabilities of a satellite's significant items
of supply might be exposed by a rigorous testing regime.
Second, the subsequent vulnerability assessment is required to
monitor the exploitation potential of the major system. Thus, a
subsequent vulnerability assessment should monitor ongoing
changes to vulnerabilities and understand the potential for
exploitation. Since new vulnerabilities can become relevant and
the characteristics of existing vulnerabilities can change, it
is necessary to monitor both existing vulnerabilities and their
characteristics, and to check for new vulnerabilities on a
regular basis.
Section 312 requires the DNI to give due consideration to
the vulnerability assessments prepared for the major systems
within the NIP. It also requires that the vulnerability
assessments be provided to the congressional intelligence
committees within ten days of their completion. The conferees
encourage the DNI to also share the results of these
vulnerabilities assessments, as appropriate, with other
congressional committees of jurisdiction. Subsequent
vulnerability assessments shall be provided to Congress with
the DNI's annual report on major system acquisitions required
under Section 102A(q) of the National Security Act of 1947.
Finally, the section contains definitions for the terms
``items of supply,'' ``major system,'' ``Milestone B,'' and
``vulnerability assessment.''
Section 313. Intelligence community business system modernization
One of the greatest challenges facing the IC today is the
modernization of its business information systems. Guidance
from the Office of Management and Budget has called for all
business information systems in government organizations to
become integrated into a business enterprise architecture. A
business enterprise architecture incorporates an agency's
financial, personnel, procurement, acquisition, logistics, and
planning systems into one interoperable system. Currently, each
IC element is building unique, stovepiped systems that do not
leverage the investments of other elements of the IC. Section
313 gives the DNI a structure for creating a coherent business
enterprise architecture that will be useful for the
intelligence professional, as well as cost-effective for the
taxpayer. The Committee expects that the DNI will include
Department of Defense representatives in the established forum
as appropriate.
Section 313 requires that the DNI create a business
enterprise architecture that defines all IC business systems,
as well as the functions and activities supported by those
business systems, in order to guide with sufficient detail the
implementation of interoperable IC business system solutions.
Section 313 also requires the submission of a preliminary draft
of the transition plan for implementing the business enterprise
architecture. The business enterprise architecture and
acquisition strategy are to be submitted to the congressional
intelligence committees by March 1, 2009 for all financial
management and human resources systems and by March 1, 2010,
for all remaining Intelligence Community business systems.
Section 313 will provide the congressional oversight
committees the assurance that business systems that cost more
than a million dollars and that receive more than 50 percent of
their funding from the NIP will be efficiently and effectively
coordinated. It will also provide a list of all ``legacy
systems'' that will be either terminated or transitioned into
the new architecture. Further, this section will require the
DNI to report to the Committee no less often than annually, for
five years, on the progress being made in successfully
implementing the new architecture.
Section 314. Excessive cost growth of major systems
Section 314 amends Title V of the National Security Act of
1947 (50 U.S.C. 413 et seq.) to require that, in addition to
the reporting required under Section 102A(q) of the Act, the
program manager of a major system acquisition project shall
determine on a continuing basis if the acquisition cost of such
major system has increased by at least 25 percent as compared
to the baseline of such major system. The program manager must
inform the DNI of any such determination and the DNI must
submit a written notification to the congressional intelligence
committees if the DNI makes the same such determination.
Section 314 is intended to mirror the Nunn-McCurdy
provision in Title 10 of the United States Code that applies to
major defense acquisition programs. The Committee envisions
that the determination will be done as needed by the program
manager of the major system acquisition and should not wait
until the time that the DNI's annual report is filed. In other
words, the Committee expects the congressional intelligence
committees to be advised on a regular basis by the DNI about
the progress and associated costs of major system acquisitions
within the Intelligence Community.
If the cost growth is 25 percent or more, the DNI must
prepare a notification and submit, among other items, an
updated cost estimate to the congressional intelligence
committees, and a certification that the acquisition is
essential to national security, there are no other alternatives
that will provide equal or greater intelligence capability at
equal or lesser cost to completion, the new estimates of the
full life-cycle cost for such major system are reasonable, and
the structure for the acquisition of such major system is
adequate to manage and control full life-cycle cost of such
major system.
If the program manager makes a determination that the
acquisition cost has increased by 50 percent or more as
compared to the baseline, and the DNI makes the same such
determination, then the DNI must submit a written certification
to certify the same four items as described above, as well as
an updated notification and accompanying information. In
addition, if milestone authority had been delegated to the
program manager, such authority is revoked and returned to the
DNI, except that with respect to Department of Defense
programs, such authority is revoked and returned to the
Director and Secretary of Defense, jointly.
If the required certification, at either the 25 percent or
50 percent level, is not submitted to the congressional
intelligence committees within 60 days of the DNI's
determination of cost growth, Section 314 creates a mechanism
in which funds cannot be obligated for a period of time. If
Congress does not act during that period, then the acquisition
may continue.
Section 315. Prohibition on conflicts of interest in intelligence
community contracting
Section 315 prohibits, beginning in fiscal year 2010, the
awarding of a contract for the provision of advisory and
assistance services related to any major system acquisition
with an element of the Intelligence Community to an entity
whose business activities include the provision of products or
services related to the same major system acquisition.
This provision addresses a continuing concern of the
Committee about apparent conflicts of interest within the
intelligence acquisition community. Despite provisions in the
Federal Acquisition Regulation intended to preclude such
conflicts, the Committee is concerned that organizational
conflicts of interest may adversely affect major acquisitions.
The Executive branch is increasingly relying upon
contractors to assist in managing or integrating complex
acquisitions. Contractor advisory and assistance service (CAAS)
and systems, engineering, and technical assistance (SETA)
contracts are often used to perform what would otherwise be
inherently governmental functions. There are merits to the
government utilizing the technical and program management
expertise that exists in the private sector. Close
relationships, however, between CAAS/SETA contractors and their
parent, affiliate, or subsidiary companies could bias those
contractors in providing advice to the government.
Where a program's prime contractor has a contractor
affiliate working in the program office setting program
requirements, assisting in source selections, and determining
award and incentive fees for the same program, there is strong
potential for conflicts of interest. An Inspector General
report from an element of the Intelligence Community expressed
concern about such apparent conflicts that were negatively
impacting the interests of that particular element. Indeed, the
Committee notes that several major prime contractors have
corporate affiliates supporting government program offices in
the management of major Intelligence Community acquisitions.
The Committee believes this practice is undesirable and has
adopted Section 315 to eliminate such conflicts of interest.
Section 315 does not take effect until the beginning of
fiscal year 2010. This transition period will allow existing
CAAS/SETA contractors to make necessary adjustments to their
corporate structures to avoid triggering a violation of Section
315.
Section 316. Future budget projections
Section 316 amends Title V of the National Security Act (50
U.S.C. 413 et seq.) to require the DNI, with the concurrence of
the Office of Management and Budget (OMB), to provide the
congressional intelligence committees with two future budget
projections that together span fifteen years and form the basis
of affordability assessments required in this section and in
Section 408 of the bill. Section 316 thus ensures that the
Intelligence Community will make long-term budgetary
projections that span the same time frame as the funding needs
of programs it initiates in the budget.
Section 316 requires first a Future Year Intelligence Plan
for at least four years after the budget year, which includes
the year by year funding plan for each expenditure center and
for each major system in the NIP. Section 316 also requires
lifecycle cost and milestones for major systems. Section 316
also requires a Long-term Budget Projection ten years beyond
the Future Year Intelligence Plan, but at a much higher level
of budget aggregation. This Long-term Budget Projection is to
be conducted under a constrained budget, but under two
alternative sets of assumptions about cost growth--one with
virtually no cost growth, the other more in line with
experience. Section 316 requires that the Long-term Budget
Projection includes a description of whether, and to what
extent, the projection for each year for each element of the
Intelligence Community exceeds the level that would result from
applying the most recent Office of Management and Budget
inflation estimate to that element. Both budget projections
must be submitted to Congress with the President's budget
request.
Section 316 ensures that the Executive branch and Congress
will be fully aware of the long-term budgetary impact of a
major system acquisition prior to its development or
production. This is achieved through a requirement that prior
to a major system entering Milestone A and Milestone B or an
analogous stage of system development, the DNI must report to
the congressional intelligence committees whether and to what
extent the proposed major system will increase the Future Year
Intelligence Plan and the Long-term Budget Projection for that
element of the IC. If the proposed major system is estimated to
cause an increase to these future budget projections, then the
DNI and OMB Director must issue a determination that the
anticipated budget increase is necessary for national security.
Subtitle C--Interrogation and Detention Related Matters
Section 321. Limitation on interrogation techniques
Section 321 prohibits the use of any interrogation
treatment or technique not authorized by the United States Army
Field Manual on Human Intelligence Collector Operations (U.S.
Army Field Manual) against any individual in the custody or
effective control of any element of the Intelligence Community
or any instrumentality of an element of the Intelligence
Community. This limitation on interrogation conducted by
Intelligence Community personnel is similar to the limitation
on interrogation conducted by Department of Defense personnel
in Section 1002(a) of the Detainee Treatment Act of 2005 (42
U.S.C. 2000dd-0(a)).
Section 321(a) was included in the conference report on the
Intelligence Authorization Act for Fiscal Year 2008 that was
vetoed by the President on March 8, 2008. The Committee has
conducted extensive review of the legality, effectiveness, and
appropriateness of CIA's detention and interrogation program.
The congressional intelligence committees have held numerous
hearings on interrogation-related issues, have had many
additional member and staff briefings, and have solicited input
from a variety of outside experts on both interrogation and the
effects of current U.S. interrogation policy. The adoption of
Section 321 through the amendment process at the Committee's
mark-up reflects the Committee's belief that the CIA should not
use interrogation techniques that go beyond those listed in the
U.S. Army Field Manual.
As updated in September of 2006, the U.S. Army Field Manual
(FM 2-22.3) provides a detailed and unclassified description of
the interrogation process, along with a number of interrogation
approaches that can be used to elicit information from
detainees. The U.S. Army Field Manual leaves interrogators with
significant flexibility to determine what approaches will work
in particular situations or with particular detainees; it does
not mandate that particular interrogation approach strategies
be used in any given situation. The Committee has received
testimony that the approaches in the U.S. Army Field Manual are
effective at eliciting information from detainees and that they
can be appropriately tailored to all detainees, including
senior terrorist leaders. The procedures in the U.S. Army Field
Manual have also been extensively reviewed to ensure compliance
with both ``American constitutional standards related to
concepts of dignity, civilization, humanity, decency, and
fundamental fairness,'' as well as U.S. obligations under
international law, including the four Geneva Conventions of
1949. See U.S. Army Field Manual at 5-21.
In addition to describing interrogation approaches, the
U.S. Army Field Manual includes a number of specific
prohibitions. In particular, it prohibits ``acts of violence or
intimidation, including physical or mental torture, or exposure
to inhumane treatment as a means of or aid to interrogation.''
It also explicitly prohibits forcing a detainee to be naked,
perform sexual acts, or pose in a sexual manner; placing hoods
or sacks over the head of a detainee; using duct tape over the
eyes of a detainee; applying beatings, electric shock, burns,
or other forms of physical pain; waterboarding; using military
working dogs; inducing hypothermia or heat injury; conducting
mock executions; and depriving the detainee of necessary food,
water, or medical care. Requiring the Intelligence Community to
comply with the U.S. Army Field Manual thus prohibits the
Intelligence Community's use of these actions as interrogation
techniques.
The Committee believes that the 19 techniques and
approaches in the Manual are effective and appropriate,
regardless of whether they are applied in a military or CIA
context or whether the interrogated party is believed to have
tactical or strategic intelligence value. The Committee intends
that Section 321 binds the CIA to the interrogation approaches
in the U.S. Army Field Manual, but does not bind the CIA to
specific procedures required of the military that do not
translate to the CIA context. For example, the U.S. Army Field
Manual requires higher level approval for two of its authorized
techniques: the ``False Flag'' approach requires approval at
the O-6 level, ``Separation'' must be approved at the Combatant
Commander level. The Committee does not intend for the CIA to
seek or obtain approvals outside of the CIA chain of command
for the use of such techniques.
The Committee also considered and rejected the argument
that restricting the CIA to the techniques listed in the U.S.
Army Field Manual would provide detainees with ``the
playbook.'' The Committee has received expert witness
testimony, as well as testimony from the Directors of the
Federal Bureau of Investigation and the Defense Intelligence
Agency, that these interrogation techniques are effective
despite being publicly available. Furthermore, the Committee
believes that the public awareness of the CIA program and
extensive speculation on what interrogation techniques may be
authorized provides sufficient information, unfortunately, to
potential detainees.
The Committee concluded that the existence of a separate,
secret CIA program yields significant damage to international
perception of the United States. Section 321 therefore creates
one consistent interrogation policy across both the U.S.
military and the Intelligence Community. Any individual in the
custody or under the effective control of an element of the
Intelligence Community may therefore be subject only to those
interrogation techniques authorized for use by the U.S.
military, that is, the interrogation techniques authorized by
the U.S. Army Field Manual.
Section 321(b) defines ``instrumentality,'' with respect to
an element of the Intelligence Community, to mean a contractor
or subcontractor at any tier of the element of the Intelligence
Community. This conforms to the definition of
``instrumentality'' in Section 323 of the bill but is not
intended to indicate any substantive difference to the
definition of ``instrumentality'' found in the Intelligence
Authorization Act for Fiscal Year 2008.
Section 322. Prohibition on interrogations by contractors
Section 322 prohibits the use by the CIA of contractors in
applying interrogation techniques to educe information. This
prohibition is intended to apply any CIA interrogation, whether
that program includes the use of so-called ``Enhanced
Interrogation Techniques'' or is conducted under a modified
program pursuant to Section 321.
The CIA Director, General Michael Hayden, testified in an
unclassified February 2008 Committee hearing that contractors
are used as part of the CIA interrogation program. The
Committee has done additional review into the use of
contractors in this activity, to include the level of training
and the backgrounds of the contractors employed, the legality
of the use of contractors to perform the function, and the
degree to which contractors are used to conduct interrogations
instead of CIA personnel.
By adoption of this section through the amendment process
at the Committee's mark-up, the Committee determined that for
reasons of accountability and control, CIA interrogations
should be carried out by CIA staff officers, not by
contractors.
Section 323. Notification of International Committee on the Red Cross
Section 323 prohibits the use of funds authorized by this
bill to detain any individual who is in the custody or under
the effective control of an element of the intelligence
community (or an instrumentality thereof) if the International
Committee of the Red Cross (ICRC) is not provided, consistent
with the practices of the Armed Forces of the United States,
notification of the detention of such individual and access to
such individual.
The ICRC has been visiting detainees in connection with
armed conflict since 1915. In 2006, the ICRC visited 478,000
prisoners of war and detainees in more than 70 countries.
Consistent with this role, Department of Defense Directive
2310.01E clearly states that the ICRC ``shall be allowed to
offer its services during an armed conflict, however
characterized, to which the United States is a party.'' The
Committee believes that U.S. armed forces have in place
effective arrangements to provide the ICRC with notification
and access to military detainees.
The Committee understands that the Department of Defense
arrangements establish certain key parameters regarding, among
other things, the timeliness of the notification and the nature
of the access. The Department of Defense arrangements allow for
the collection of intelligence from detainees, while also
acknowledging the special role established by international law
for the ICRC to monitor compliance with the law of war. The
Committee believes that such arrangements provide a workable
framework for any individuals in the custody of a U.S.
intelligence agency.
The United States has long opposed incommunicado detention
around the world as incompatible with our notions of liberty
and justice. As recently as March 2008, the U.S. Department of
State criticized the governments of North Korea, Burma, and Sri
Lanka for engaging in ``disappearances'' in its 2007 Annual
Human Rights Report. From time to time, the United States has
found itself in need of obtaining access to U.S. personnel in
the custody of another government or armed force. On the day
after a collision between a U.S. military aircraft and a
Chinese military aircraft (which forced the U.S. aircraft to
make an emergency landing in Chinese territory), President
George W. Bush said: ``The first step should be immediate
access by our embassy personnel to our crew members. I am
troubled by the lack of a timely Chinese response to our
request for this access.'' Allowing ICRC access to individuals
in U.S. custody would strengthen our ability to advocate for
appropriate treatment of Americans detained overseas and
restore our moral authority to press for respect for human
rights around the world.
Section 323(b) provides a rule of construction that
clarifies that nothing in this section shall be construed to:
(1) create or otherwise imply the authority to detain; or (2)
limit or otherwise affect any other rights or obligations which
may arise under the Geneva Conventions or other laws, or to
state all of the situations in which notification to and access
for the ICRC is required or allowed.
Section 323(c) defines ``instrumentality'' for the purposes
of this section to mean, with respect to an element of the
intelligence community, a contractor or subcontractor at any
tier of the element of the intelligence community.
Section 324. Report on compliance with the Detainee Treatment Act of
2005 and related provisions of the Military Commissions Act of
2006
Section 324 requires the DNI to submit a classified
comprehensive report to the congressional intelligence
committees on all measures taken by the ODNI and by any IC
element with relevant responsibilities on compliance with
detention and interrogation provisions of the Detainee
Treatment Act of 2005 and the Military Commissions Act of 2006.
The report is to be submitted no later than 45 days after the
date of enactment of this Act.
The Detainee Treatment Act provides that no individual in
the custody or under the physical control of the United States,
regardless of nationality or physical location, shall be
subject to cruel, inhuman, or degrading treatment. Congress
reaffirmed this mandate in Section 6 of the Military
Commissions Act, adding an implementation mechanism that
requires the President to take action to ensure compliance
including through administrative rules and procedures. Section
6 further provides not only that grave breaches of Common
Article 3 of the Geneva Conventions are war crimes under Title
18 of the United State Code, but also that the President has
authority for the United States to promulgate higher standards
and administrative regulations for violations of U.S. treaty
obligations. It requires the President to issue those
interpretations by Executive Order published in the Federal
Register.
The report required by Section 324 shall include a
description of any detention or interrogation methods that have
been determined to comply with the prohibitions of the Detainee
Treatment Act and the Military Commissions Act or have been
discontinued pursuant to them.
The Detainee Treatment Act also provides for the protection
against civil or criminal liability for United States
Government personnel who had engaged in officially authorized
interrogations that were determined to be lawful at the time.
Section 324 requires the DNI to report on actions taken to
implement that provision.
The report shall also include an appendix containing all
guidelines on the application of the Detainee Treatment Act and
the Military Commissions Act to the detention or interrogation
activities, if any, of any IC element. The appendix shall also
include all legal justifications of ``any office of the
Department of Justice.'' This requirement is drafted so as to
accommodate the concern that the provision might otherwise
compel the production of internal deliberative legal materials.
The provision therefore seeks only the legal justifications of
any office of the Department of Justice that rendered an
opinion on the matter.
To the extent that the report required by Section 324
addresses an element of the Intelligence Community within the
Department of Defense, that portion of the report, and
associated material that is necessary to make that portion
understandable, shall also be submitted by the DNI to the
congressional armed services committees.
Subtitle D--Reporting Requirements
Section 331. Report on use of contractors by elements of the
intelligence community
Several provisions of the bill are aimed at reducing the
overall use of contractors by the Intelligence Community. The
Committee believes these provisions are necessary for financial
and accountability purposes. Section 331 addresses the nature
of the activities performed by contractors. The section
requires a one-time report to the congressional intelligence
committees by the DNI describing the activities within the
Intelligence Community that the DNI believes should only be
conducted by governmental employees but that are being
conducted by one or more contractors, an estimate of the number
of contractors performing each such activity, and the DNI's
plans, if any, to have such activities performed solely by
governmental employees.
The Committee recognizes that there are activities that are
more appropriately performed by contractors than government
employees--installation and maintenance of information
technology is a commonly cited example. The Committee also
believes, however, that there are tasks that are ``inherently
governmental,'' as that term is described in the Office of
Management and Budget Circular A-76, that should be done solely
by governmental employees. The Committee leaves it to the DNI's
discretion to determine what those activities are, but believes
that determining analytic judgments, collecting human
intelligence, conducting covert action activities, performing
interrogations, and managing personnel are among them.
The Committee is hopeful that the reporting requirement in
this section will lead to proposals by the DNI to transition
contractor work to government positions, utilizing the
authorities provided in Section 103(c) of this Act.
Section 332. Improvement of notification of Congress regarding
intelligence activities of the United States Government
Section 332 amends the requirements for notifications to
Congress under Sections 502 and 503 of the National Security
Act of 1947 (50 U.S.C. 413a & 413b) and the requirements for
funds to be authorized under Section 504 of that Act (50 U.S.C.
414). First, Section 332 of the bill requires that, in the
event that the DNI or the head of an Intelligence Community
element does not provide to all members of the congressional
intelligence committees the notification required by Section
502 (relating to intelligence activities other than covert
actions) or Section 503 (relating to covert actions) of the
National Security Act of 1947, all members of the committees
will be provided with a notification of this fact and will be
provided with a description of the main features of the
intelligence activity or covert action.
Section 332 also extends requirements in Section 502 of the
National Security Act of 1947 on the form and contents of
reports to the congressional intelligence committees on
intelligence activities other than covert actions to the
requirements for notifications to Congress under Section 503 of
that Act (relating to covert actions). In addition, the section
requires that any change to a covert action finding under
Section 503 of that Act must be reported to the committees,
rather than the existing requirement to report changes only if
they are ``significant.''
Section 333. Federal Bureau of Investigation intelligence
transformation
Section 333 requires the Director of National Intelligence,
in coordination with the Director of the Federal Bureau of
Investigation, to establish performance metrics and specific
timetables related to the progress of the FBI in carrying out
nine items specified in the bill to make reforms within the
Bureau.
In addition, the DNI is required to submit to the
congressional intelligence committees a consolidated report on
a semi-annual basis over five years on the progress of the FBI
in carrying out these items, including an assessment of the
metrics, timetables and corrective actions, and a description
of the activities being carried out to ensure the FBI is
improving its performance.
Section 334. Incorporation of reporting requirements
Section 334 incorporates into the Act each requirement to
submit a report to the congressional intelligence committees
contained in the classified annex to this Act.
Section 335. Repeal of certain reporting requirements
The Committee frequently requests information from the
Intelligence Community in the form of reports, the contents of
which are specifically defined by statute. The reports prepared
pursuant to these statutory requirements provide this Committee
with an invaluable source of information about specific matters
of concern.
The Committee recognizes, however, that congressional
reporting requirements, and particularly recurring reporting
requirements, can place a significant burden on the resources
of the Intelligence Community. It is therefore important for
the Congress to reconsider these reporting requirements on a
periodic basis to ensure that the reports it has requested are
the best mechanism for the Congress to receive the information
it seeks. In some cases, annual reports can be replaced with
briefings or notifications that provide the Congress with more
timely information and offer the Intelligence Community a
direct line of communication to respond to congressional
concerns.
In response to a request from the Director of National
Intelligence, the Committee examined some of these recurring
reporting requirements. Section 335 therefore eliminates
certain reports that were particularly burdensome to the
Intelligence Community when the information in the reports
could be obtained through other means. It also eliminates
reports whose usefulness has diminished either because of
changing events or because the information contained in those
reports is duplicative of information already obtained through
other avenues. It modifies the reporting requirements in three
cases to change annual reports to biennial reports.
Because the vast majority of recurring reports provide
critical information relevant to the many challenges facing the
Intelligence Community today, the Committee ultimately
eliminated only six statutory reporting requirements, a very
small percentage of the many recurring reports currently
requested. The Committee believes that elimination of these
reports will help the Intelligence Community to allocate its
resources properly towards areas of greatest congressional
concern.
Subtitle E--Other Matters
Section 341. Restriction on conduct of intelligence activities
Section 341 provides that the authorization of
appropriations by the Act shall not be deemed to constitute
authority for the conduct of any intelligence activity that is
not otherwise authorized by the Constitution or laws of the
United States.
Section 342. Clarification of definition of intelligence community
under the National Security Act of 1947
Section 342 amends Section 3(4)(L) of the National Security
Act of 1947 (50 U.S.C. 401a(4)(L)) to permit the designation as
``elements of the intelligence community'' of elements of
departments and agencies of the United States Government
whether or not those departments and agencies are listed in
Section 3(4).
Section 343. Modification of availability of funds for different
intelligence activities
Section 343 conforms the text of Section 504(a)(3)(B) of
the National Security Act of 1947 (50 U.S.C. 414(a)(3)(B)
(governing the funding of intelligence activities)) with the
text of Section 102A(d)(5)(A)(ii) of that Act (50 U.S.C. 403-
1(d)(5)(A)(ii)), as amended by Section 1011(a) of the
Intelligence Reform and Terrorism Prevention Act of 2004 (Pub.
L. No. 108-458 (Dec. 17, 2004)) (governing the transfer and
reprogramming by the DNI of certain intelligence funding).
The amendment replaces the ``unforeseen requirements''
standard in Section 504(a)(3)(B) with a more flexible standard
to govern reprogrammings and transfers of funds authorized for
a different intelligence or intelligence-related activity.
Under the new standard, a reprogramming or transfer is
authorized if, in addition to the other requirements of Section
504(a)(3), the new use of funds would ``support an emergent
need, improve program effectiveness, or increase efficiency.''
This modification brings the standard for reprogrammings or
transfers of intelligence funding into conformity with the
standards applicable to reprogrammings and transfers under
Section 102A of the National Security Act of 1947. The
modification preserves congressional oversight of proposed
reprogrammings and transfers while enhancing the IC's ability
to carry out missions and functions vital to national security.
Section 344. Additional limitation on availability of funds for
intelligence and intelligence-related activities
Section 344 adds to the requirements of Section 504 of the
National Security Act of 1947, which specify that appropriated
funds may be obligated or expended for an intelligence or
intelligence-related activity only if the congressional
intelligence committees have been ``fully and currently
informed'' of that activity. Section 344 specifies that the
committees should be considered to have been `fully and
currently informed' only if all members of the committees are
fully informed or if all members have received a notification
providing the main features of the activity or covert action
has been provided as required elsewhere in this section.
Section 345. Limitation on reprogramming and transfer of funds
Section 345 modifies the reprogramming requirements set
forth in Section 504 of the National Security Act of 1947 (50
U.S.C. 414) to provide in statute that, following a
reprogramming notification from the DNI, Attorney General, or
Secretary of Defense, appropriated funds may not be expended
for a period of up to 90 days after a request for information
about the reprogramming is made by one of the congressional
intelligence committees. It also allows the President to
authorize the reprogramming, regardless of the 90-day review
period, to fulfill an urgent operational requirement (excluding
cost overruns) when it is necessary for the Intelligence
Community to carry out the reprogrammed activity prior to the
completion of the review period set by the congressional
intelligence committees.
Section 504 of the National Security Act allows the
Intelligence Community a certain degree of flexibility in
reprogramming authorized and appropriated funds for higher
priority activities based on unforeseen requirements without
having to seek additional legislation from Congress. Section
345 of the bill alters this delegation of authority to
reprogram and transfer funds by formalizing a maximum time
period for review by the congressional intelligence committees
and instituting a waiver mechanism to ensure that such review
does not hamper urgent operational requirements.
Section 346. Availability to public of certain intelligence funding
information
Section 601(a) of the Implementing Recommendations of the
9/11 Commission Act of 2007 (50 U.S.C. 415c (August 3, 2007))
requires the DNI to disclose the aggregate amount of funds
appropriated by Congress for the NIP for each fiscal year
beginning with fiscal year 2007. Section 601(b) provides that
the President may waive or postpone such disclosure if certain
conditions are met, beginning with fiscal year 2009. Section
346 changes the year for which the waiver is first available to
fiscal year 2010.
Section 347. Increase in penalties for disclosure of undercover
intelligence officers and agents
Section 347 amends Section 601 of the National Security Act
of 1947 (50 U.S.C. 421) to increase the criminal penalties
involving the disclosure of the identities of undercover
intelligence officers and agents.
Section 347(a) amends Section 601(a) to increase criminal
penalties for individuals with authorized access to classified
information who intentionally disclose any information
identifying a covert agent, if those individuals know that the
United States is taking affirmative measures to conceal the
covert agent's intelligence relationship to the United States.
Currently, the maximum sentence for disclosure by someone who
has had ``authorized access to classified information that
identifies a covert agent'' is 10 years. Subsection (a) of
Section 347 of this Act increases that maximum sentence to 15
years.
Currently, under Section 601(b) of the National Security
Act of 1947, the maximum sentence for disclosure by someone who
``as a result of having authorized access to classified
information, learns of the identity of a covert agent'' is 5
years. Subsection (b) of Section 347 of this Act increases that
maximum sentence to 10 years.
Section 348. Authority to designate undercover operations to collect
foreign intelligence or counterintelligence
Various provisions in the United States Code preclude the
government from conducting the following activities: the
deposit of funds in a financial institution; the lease or
purchase of real property; the establishment and operation of a
proprietary business on a commercial basis; and the utilization
of proceeds of the operation to offset necessary and reasonable
operational expenses. In recognition, however, of the important
role such activities may play in the conduct of undercover
operations, Public Law 102-395 (28 U.S.C. 533 note) provides a
mechanism for the FBI to obtain an exemption from these
otherwise applicable laws.
Under Public Law 102-395, an exemption may be obtained if
the proposed activity is certified by the Director of the
Federal Bureau of Investigation and the Attorney General as
being necessary to the conduct of the undercover operation. For
national security investigations, the Director of the FBI may
delegate certifying authority to an Assistant Director in the
Counterterrorism, Counterintelligence, or Cyber Divisions at
the FBI, and the Attorney General may delegate such authority
to the Assistant Attorney General for the National Security
Division at the Department of Justice.
Section 348 amends the current delegation level for both
the FBI and the Department of Justice. It allows the FBI
Director to delegate certifying authority to a level not lower
than a Deputy Assistant Director in the National Security
Branch. It also allows the Attorney General to delegate the
certifying authority to a level not lower than a Deputy
Assistant Attorney General in the National Security Division.
It should be noted that this delegation level for the
Department of Justice remains at a higher level than that which
is currently required in criminal undercover operations.
The Committee is concerned that, because of both statutory
and administrative limitations, the current delegation levels
are insufficient to allow for timely processing of undercover
exemptions. The success and safety of undercover operations can
depend in part on the ability to do such simple tasks as open a
bank account or rent an apartment for cover purposes. While the
creation of the National Security Division at the Department of
Justice has led to more efficient processing of some exemption
requests, there remains room for improvement. The Committee
believes that the new delegation levels established in this
Section will encourage and facilitate further internal and
administrative improvements in processing undercover exemptions
both at the FBI and the Department of Justice, without
sacrificing needed oversight within the FBI and Department of
Justice.
Section 349. Language and intelligence analyst training program
Section 922 of the Ronald W. Reagan National Defense
Authorization Act for Fiscal Year 2005 (Pub. L. No. 108-375)
authorized the creation of a pilot program to provide
scholarships to prospective language and intelligence analysts.
This program was modeled after the military's Reserve Officer
Training Corps and administered by the Director of the National
Security Agency. The Committee believes that the results of
this pilot program thus far have been encouraging.
Section 349 makes the authorization for this program
permanent, and transfers authority to administer the program to
the Director of National Intelligence. Section 349 also expands
the program's scope by authorizing the DNI to award grants to
qualified institutions of higher education to develop relevant
courses of study, and provides greater legislative clarity
regarding the operation of the program.
Section 350. Extension of authority to delete information about receipt
and disposition of foreign gifts and decorations
Current law (5 U.S.C. 7342) requires that certain federal
``employees''--a term that generally applies to all IC
officials and personnel and certain contractors, spouses,
dependents, and others--file reports with their employing
agency regarding receipt of gifts or decorations from foreign
governments. Following compilation of these reports, the
employing agency is required to file annually with the
Secretary of State detailed information about the receipt of
foreign gifts and decorations by its employees, including the
source of the gift. The Secretary of State is required to
publish a comprehensive list of the agency reports in the
Federal Register.
With respect to IC activities, public disclosure of gifts
or decorations in the Federal Register has the potential to
compromise intelligence sources (e.g., confirmation of an
intelligence relationship with a foreign government) and could
undermine national security. Recognizing this concern, the
Director of Central Intelligence (DCI) was granted a limited
exemption from reporting certain information about such foreign
gifts or decorations where the publication of the information
could adversely affect United States intelligence sources.
Section 1079 of the Intelligence Reform and Terrorism
Prevention Act of 2004, Pub. L. No. 108-458 (December 17, 2004)
(``Intelligence Reform Act''), extended a similar exemption to
the DNI in addition to applying the existing exemption to the
CIA Director.
Section 350 provides to the heads of each IC element the
same limited exemption from specified public reporting
requirements that is currently authorized for the DNI and CIA
Director. The national security concerns that prompt those
exemptions apply equally to other IC elements. Section 350
mandates that the information not provided to the Secretary of
State be provided to the DNI, who is required to keep a record
of such information, to ensure continued independent oversight
of the receipt by IC personnel of foreign gifts or decorations.
Gifts received in the course of ordinary contact between
senior officials of elements of the Intelligence Community and
their foreign counterparts should not be excluded under the
provisions of Section 350 unless there is a serious concern
that such contacts and gifts would adversely affect United
States intelligence sources or methods.
Section 351. Extension of National Commission for the Review of
Research and Development Programs of the United States
Intelligence Community
The National Commission for Review of Research and
Development Programs of the United States Intelligence
Community was authorized in the Intelligence Authorization Act
for Fiscal Year 2003 (Pub. L. No. 107-306), and lapsed on
September 1, 2004. Section 501 renews authority for this
Commission by extending the reporting deadline to December 31,
2009, and requiring that new members be appointed to the
Commission. This section also authorizes funds for the
commission from the Intelligence Community Management Account.
Section 352. Clarifying amendments relating to section 105 of the
Intelligence Authorization Act for Fiscal Year 2004
Section 352 changes the reference to the Director of
Central Intelligence to the Director of National Intelligence
in Section 105 of the Intelligence Authorization Act for Fiscal
Year 2004 (Pub. L. No. 108-77 (December 13, 2003)) to clarify
that the establishment of the Office of Intelligence and
Analysis within the Department of the Treasury, and its
reorganization within the Office of Terrorism and Financial
Intelligence (Section 222 of the Transportation, Treasury,
Independent Agencies, and General Government Appropriations
Act, 2005 (Division H, Pub. L. No. 108-447 (December 8, 2004)),
do not affect the authorities and responsibilities of the DNI
with respect to the Office of Intelligence and Analysis as an
element of the Intelligence Community.
TITLE IV--MATTERS RELATING TO ELEMENTS OF THE INTELLIGENCE COMMUNITY
Subtitle A--Office of the Director of National Intelligence
Section 401. Requirements for accountability reviews by the Director of
National Intelligence
Section 401 provides that the Director of National
Intelligence shall have new authority to conduct accountability
reviews of elements within the Intelligence Community and the
personnel of those elements. The primary innovation of this
provision is the authority to conduct accountability reviews
concerning an entire element of the IC in relation to failures
or deficiencies.
This accountability process is intended to be separate and
distinct from any accountability reviews being conducted
internally by the elements of the Intelligence Community or
their Inspectors General, and is not intended to limit the
authorities of the Director of National Intelligence with
respect to his supervision of the Central Intelligence Agency.
Section 401 requires that the Director of National
Intelligence, in consultation with the Attorney General, must
formulate guidelines and procedures that will govern
accountability reviews. The Committee envisions that these
guidelines will govern the process by which the Director of
National Intelligence can collect sufficient information from
the Intelligence Community to assess accountability for a given
incident.
Any findings and recommendations for corrective or punitive
action made by the Director of National Intelligence shall be
provided to the head of the applicable element of the
Intelligence Community. If the head of such element does not
implement the recommendations, then the congressional
intelligence committees must be notified and provided the
reasons for the determination by the head of the element.
In addition, to avoid a construction that a committee of
Congress on its own could require such a review over the
objection of the DNI, a concern raised by the ODNI, the section
makes clear that the DNI shall conduct a review if the DNI
determines it is necessary, and the DNI may conduct an
accountability review (but is not statutorily required to do
so) if requested by one of the congressional intelligence
committees.
This enhancement to the authority of the Director of
National Intelligence is warranted given the apparent
reluctance of various elements of the Intelligence Community to
hold their agencies or personnel accountable for significant
failures or deficiencies. Recent history provides several
examples of serious failures to adhere to sound analytic
tradecraft. In its reviews of both the September 11, 2001
terrorist attacks and the faulty Iraq prewar assessments on
weapons of mass destruction, the Committee found specific
examples of these failures yet no one within the Intelligence
Community has been held accountable. Other examples of a lack
of accountability within the Intelligence Community can be
found by examining the history of certain major system
acquisition programs. Despite clear management failures that
resulted in significant cost overruns and unreasonable
scheduling delays, these programs continue to stumble along
without any imposition of accountability.
The Committee hopes that this modest increase in the
Director of National Intelligence's authorities will encourage
elements within the Intelligence Community to put their houses
in order by imposing accountability for significant failures
and deficiencies. Section 401 will enable the Director of
National Intelligence to get involved in the accountability
process in the event that an element of the Intelligence
Community cannot or will not take appropriate action.
Section 402. Authorities for intelligence information sharing
Section 402 amends Section 102A(g)(1) of the National
Security Act of 1947 (50 U.S.C. 403-1(g)(1)) to provide the DNI
statutory authority to use NIP funds to quickly address
deficiencies or needs that arise in intelligence information
access or sharing capabilities.
The new Section 102A(g)(1)(G) authorizes the DNI to provide
to a receiving agency or component, and for that agency or
component to accept and use, funds or systems (which would
include services or equipment) related to the collection,
processing, analysis, exploitation, and dissemination of
intelligence information.
The new Section 102A(g)(1)(H) grants the DNI authority to
provide funds to non-NIP activities for the purpose of
addressing critical gaps in intelligence information access or
sharing capabilities. Without this authority, development and
implementation of necessary capabilities could be delayed by an
agency's lack of authority to accept or utilize systems funded
from the NIP, inability to use or identify current-year
funding, or concerns regarding the augmentation of
appropriations.
These are similar to authorities granted to the National
Geospatial-Intelligence Agency (NGA) for developing and
fielding systems of common concern relating to imagery
intelligence and geospatial intelligence. See Section
105(b)(2)(D)(ii) of the National Security Act of 1947 (50
U.S.C. 403-5). Section 402 also requires the DNI to submit a
report to the congressional intelligence committees by February
1st annually from fiscal year 2010 through fiscal year 2013
providing details on how this authority has been exercised
during the preceding fiscal year.
Section 403. Modification of limitation on delegation by the Director
of National Intelligence of the protection of intelligence
sources and methods
Section 403 amends Section 102A(i)(3) of the National
Security Act of 1947 to modify the limitation on delegation by
the DNI (which now extends only to the Principal Deputy DNI) of
the authority to protect intelligence sources and methods from
unauthorized disclosure. It permits the DNI to delegate the
authority to the Principal Deputy DNI or the Chief Information
Officer of the IC.
Section 404. Authorities of the Director of National Intelligence for
interagency funding
The DNI should be able to rapidly focus the IC on an
intelligence issue through a coordinated effort that uses all
available resources. The ability to coordinate the IC response
to an emerging threat should not depend on the budget cycle and
should not be constrained by general limitations in
appropriations law (e.g., 31 U.S.C. 1346) or other prohibitions
on interagency financing of boards, commissions, councils,
committees, or similar groups.
To provide this flexibility, Section 404 grants the DNI the
authority to approve interagency financing of national
intelligence centers established under Section 119B of the
National Security Act of 1947 (50 U.S.C. 404o-2). The section
also authorizes interagency funding for boards, commissions,
councils, committees, or similar groups established by the DNI
for a period not to exceed two years. This would include the
interagency funding of IC mission managers. Under Section 404,
the DNI could authorize the pooling of resources from various
IC agencies to finance national intelligence centers or other
organizational groupings designed to address identified
intelligence matters. The provision also expressly permits IC
elements, upon the request of the DNI, to fund or participate
in these interagency activities.
Under Section 404, the DNI is to submit a report to the
congressional intelligence committees by February 1st annually
from fiscal year 2010 through fiscal year 2013 providing
details on how this authority has been exercised during the
preceding fiscal year.
Section 405. Clarification of limitation on co-location of the Office
of the Director of National Intelligence
Section 405 clarifies that the ban on co-location of the
Office of the DNI with any other IC element, which is slated to
take effect on October 1, 2008, applies to the co-location of
the headquarters of the Office of the DNI with the headquarters
of any other Intelligence Community agency or element.
In his legislative request for this authorization, the DNI
has asked, for the first time, that Congress also provide that
``The headquarters of the Office of the Director of National
Intelligence may be located in the District of Columbia or
elsewhere in the Metropolitan Region, as that term is defined
in Section 8301 of title 40, United States Code.'' The purpose
of this request is to provide statutory authorization for the
location of the ODNI outside of the District of Columbia.
Section 72 of Title 4, United States Code--a codification
enacted in 1947 which derived from a statute signed into law by
President George Washington in 1790--requires that ``All
offices attached to the seat of government shall be exercised
in the District of Columbia and not elsewhere, except as
otherwise expressly provided by law.'' In 1955, just eight
years after the 1947 codification, Congress granted statutory
authority for the Director of Central Intelligence to provide
for a headquarters of the Central Intelligence Agency either in
the District of Columbia ``or elsewhere.'' 69 Stat. 324, 349.
The DNI, in his sectional analysis accompanying his request
for this authorization, states that whether a statutory
exemption (such as the one provided to the CIA) is needed ``is
unclear.'' To aid the Congress in determining--in light of the
text of 4 U.S.C. 72, and the precedent of the 1955 legislation
on the location of the CIA--whether an exemption is required
for the location of the ODNI outside the District of Columbia,
the Committee requests that the DNI obtain the legal opinion of
the Department of Justice's Office of Legal Counsel on that
question. If legislation is required, the policy question about
the location of the ODNI can then be addressed in a floor
amendment to this authorization.
Section 406. Title of Chief Information Officer of the Intelligence
Community
Section 406 expressly designates the position of Chief
Information Officer in the Office of the Director of National
Intelligence as Chief Information Officer of the Intelligence
Community. The modification to this title is consistent with
the position's overall responsibilities as outlined in Section
103G of the National Security Act of 1947 (50 U.S.C. 403-3g).
Section 407. Inspector General of the Intelligence Community
Section 1078 of the Intelligence Reform Act authorizes the
DNI to establish an Office of Inspector General if the DNI
determines that an Inspector General (IG) would be beneficial
to improving the operations and effectiveness of the Office of
the DNI. It further provides that the DNI may grant to the
Inspector General any of the duties, responsibilities, and
authorities set forth in the Inspector General Act of 1978. The
DNI has appointed an Inspector General and has granted certain
authorities pursuant to DNI Instruction No. 2005-10 (September
7, 2005).
As this Committee urged in reports on proposed
authorization acts for fiscal years 2006 through 2008, a strong
IG is vital to achieving the goal, set forth in the
Intelligence Reform Act, of improving the operations and
effectiveness of the Intelligence Community. It is also vital
to achieving the broader goal of identifying problems and
deficiencies, wherever they may be found in the IC, with
respect to matters within the responsibility and authority of
the DNI, including the manner in which elements of the IC
interact with each other in providing access to information and
undertaking joint or cooperative activities. By way of a new
Section 103H of the National Security Act of 1947, Section 407
of this Act establishes an Inspector General of the
Intelligence Community in order to provide to the DNI and
through reports to the Congress, the benefits of an IG with
full statutory authorities and the requisite independence.
The Office of the Inspector General is to be established
within the Office of the DNI. The Office of the IG created by
this bill is to replace and not duplicate the current Office of
the IG for the ODNI. The IG will keep both the DNI and the
congressional intelligence committees fully and currently
informed about problems and deficiencies in IC programs and
operations and the need for corrective actions. The IG will be
appointed by the President, with the advice and consent of the
Senate, and will report directly to the DNI. To bolster the
IG's independence within the Intelligence Community, the IG may
be removed only by the President, who must communicate the
reasons for the removal to the congressional intelligence
committees.
Under the new subsection 103H(e), the DNI may prohibit the
IG from conducting an investigation, inspection, or audit if
the DNI determines that is necessary to protect vital national
security interests. If the DNI exercises the authority to
prohibit an investigation, the DNI must provide the reasons to
the intelligence committees within seven days. The IG may
submit comments in response to the congressional intelligence
committees.
The IG will have direct and prompt access to the DNI and
any IC employee, or employee of a contractor, whose testimony
is needed. The IG will also have direct access to all records
that relate to programs and activities for which the IG has
responsibility. Failure to cooperate will be grounds for
appropriate administrative action.
The IG will have subpoena authority. However, information
within the possession of the United States Government must be
obtained through other procedures. Subject to the DNI's
concurrence, the IG may request information from any United
States Government department, agency, or element. They must
provide the information to the IG insofar as is practicable and
not in violation of law or regulation.
The IG must submit semiannual reports to the DNI that
include a description of significant problems relating to IC
programs and operations and to the relationships between IC
elements. The reports must include a description of IG
recommendations and a statement whether corrective action has
been completed. Within 30 days of receiving each semiannual
report from the IG, the DNI must submit it to Congress.
The IG must immediately report to the DNI particularly
serious or flagrant violations. Within seven days, the DNI must
transmit those reports to the intelligence committees together
with any comments. In the event the IG is unable to resolve any
differences with the DNI affecting the duties or
responsibilities of the IG or the IG conducts on investigation,
inspection, or audit that focuses on certain high-ranking
officials, the IG is authorized to report directly to the
intelligence committees.
IC employees, or employees of contractors, who intend to
report to Congress an ``urgent concern''--such as a violation
of law or Executive order, a false statement to Congress, or a
willful withholding from Congress--may report such complaints
and supporting information to the IG. Following a review by the
IG to determine the credibility of the complaint or
information, the IG must transmit such complaint and
information to the DNI. On receiving the complaints or
information from the IG (together with the IG's credibility
determination), the DNI must transmit the complaint or
information to the intelligence committees. If the IG finds a
complaint or information not to be credible, the reporting
individual may still submit the matter directly to the
committees by following appropriate security practices outlined
by the DNI. Reprisals or threats of reprisal against reporting
individuals constitute reportable ``urgent concerns.'' The
Committee will not tolerate actions by the DNI, or by any IC
element, constituting a reprisal for reporting an ``urgent
concern'' or any other matter to Congress. Nonetheless,
reporting individuals should ensure that the complaint and
supporting information are provided to Congress consistent with
appropriate procedures designed to protect intelligence sources
and methods and other sensitive matters.
For matters within the jurisdiction of both the IG of the
Intelligence Community and an Inspector General for another IC
element (or for a parent department or agency), the Inspectors
General shall expeditiously resolve who will undertake the
investigation, inspection, or audit. In attempting to resolve
that question, the Inspectors General may request the
assistance of the Intelligence Community Inspectors General
Forum (a presently functioning body whose existence is ratified
by Section 407). In the event that the Inspectors General are
still unable to resolve the question, they shall submit it to
the DNI and the head of the agency or department for
resolution.
An IG for an IC element must share the results of any
investigation, inspection, or audit with any other IG,
including the Inspector General of the Intelligence Community,
who otherwise would have had jurisdiction over the
investigation, inspection, or audit.
Consistent with existing law, the Inspector General must
report to the Attorney General any information, allegation, or
complaint received by the Inspector General relating to
violations of Federal criminal law.
Section 408. Chief Financial Officer of the Intelligence Community
Section 408 amends Title I of the National Security Act of
1947 (50 U.S.C. 402 et seq.) to establish in statute a Chief
Financial Officer of the Intelligence Community (IC CFO) to
assist the DNI in carrying out budgetary, acquisition, and
financial management responsibilities.
By way of a new Section 103I of the National Security Act
of 1947, under Section 408, the IC CFO will, to the extent
applicable, have the duties, responsibilities, and authorities
specified in the Chief Financial Officers Act of 1990. The IC
CFO will serve as the principal advisor to the DNI and the
Principal Deputy DNI on the management and allocation of IC
budgetary resources, and shall establish and oversee a
comprehensive and integrated strategic process for resource
management within the IC. Section 408 charges the IC CFO with
ensuring that the strategic plan and architectures of the DNI
are based on budgetary constraints as specified in the future
budget projections required in Section 316.
Section 408 also charges the IC CFO with ensuring that
major system acquisitions satisfy validated national
requirements for meeting the DNI's strategic plans and that
such requirements are prioritized based on budgetary
constraints as specified in the future budget projections
required in Section 316. To guarantee this is achieved in
practice, under Section 408, prior to obligation or expenditure
of funds for major system acquisitions to proceed to Milestone
A (development) or Milestone B (production), requirements must
validated and prioritized based on budgetary constraints as
specified in Section 316.
Section 408 requires that the IC CFO preside, or assist in
presiding, over any mission requirement, architectural, or
acquisition board formed by the ODNI, and to coordinate and
approve representations to Congress by the IC regarding NIP
budgetary resources. An individual serving as the IC CFO may
not at the same time also serve as a CFO of any other
department or agency.
Section 409. Leadership and location of certain offices and officials
Section 409 confirms in statute that various offices are
within the Office of the DNI: (1) the Chief Information Officer
of the Intelligence Community; (2) the Inspector General of the
Intelligence Community; (3) the Director of the National
Counterterrorism Center (NCTC); (4) the Director of the
National Counter Proliferation Center (NCPC); and (5) the Chief
Financial Officer of the Intelligence Community. It also
expressly provides in statute that the DNI shall appoint the
Director of the NCPC, which is what has been done by
administrative delegation from the President.
Section 410. National Space Intelligence Office
The United States maintains a large investment in
satellites and this investment has grown dramatically in recent
years. These satellites serve the commercial and national
security needs of the nation. As such, a loss of any or all of
these assets would do tremendous harm to our economy and
security.
At the same time, our investment in intelligence collection
concerning threats to our interests in space has declined
markedly in relation to our overall investment in space
systems. Despite this significant overall investment, some
estimates indicate that we commit only 10 percent of what we
did nearly 25 years ago to the analysis of threats to space
systems. Recent international events have only served to
highlight this problem.
In an effort to better understand future threats to our
space assets, as well as potential threats to the United States
from space, Section 410 establishes a National Space
Intelligence Office (NSIO). It is not the intent of the
Committee that the NSIO be a physical consolidation of existing
intelligence entities with responsibilities for various types
of intelligence related to space. Rather, the functions of the
NSIO, among others delineated in Section 410, will be to
coordinate and provide policy direction for the management of
space-related intelligence assets as well as to prioritize
collection activities consistent with the DNI's National
Intelligence Collection Priorities. The NSIO is to augment the
existing efforts of the National Air and Space Intelligence
Center (NASIC) and Missile and Space Intelligence Center
(MSIC); it is not designed to replace them. The Committee
intends that NSIO work closely with NASIC and MSIC to ensure a
coordinated IC response to issues that intersect the
responsibilities of all three organizations.
The NSIO Director shall be the National Intelligence
Officer for Science and Technology. The Committee encourages
appointment of an Executive Director from the Senior
Intelligence Service.
Section 411. Operational files in the Office of the Director of
National Intelligence
In the CIA Information Act (Pub. L. No. 98-477 (October 15,
1984) (50 U.S.C. 431 et seq.)), Congress authorized the DCI to
exempt operational files of the CIA from several requirements
of the Freedom of Information Act (FOIA), particularly those
requiring search and review in response to FOIA requests. In a
series of amendments to Title VII of the National Security Act
of 1947, Congress has extended the exemption to the operational
files of the National Geo-Spatial Intelligence Agency (NGA),
the National Security Agency (NSA), the National Reconnaissance
Office (NRO), and the Defense Intelligence Agency (DIA). It has
also provided that files of the Office of the National
Counterintelligence Executive (NCIX) should be treated as
operational files of the CIA (to the extent they meet the
criteria for CIA operational files).
Section 411 adds a new Section 706 to the National Security
Act of 1947. Components of the ODNI, including the NCTC,
require access to information contained in CIA and other
operational files. The purpose of Section 411 is to make clear
that the operational files of any IC component, for which an
operational files exemption is applicable, retain their
exemption from FOIA search, review, disclosure, or publication.
They also retain their exemption when they are incorporated in
any substantially similar files of the ODNI.
Section 411 provides several limitations. The exemption
does not apply to information disseminated beyond the ODNI.
Also, as Congress has provided in the operational files
exemptions for the CIA and other IC elements, Section 411
provides that the exemption from search and review does not
apply to requests by United States citizens or permanent
residents for information about themselves (although other FOIA
exemptions, such as appropriate classification, may continue to
protect such files from public disclosure). The search and
review exemption would not apply to the subject matter of
congressional or Executive branch investigations into
improprieties or violations of law.
Section 411 also provides for a decennial review by the DNI
to determine whether exemptions may be removed from any
category of exempted files. It provides that this review shall
include consideration of the historical value or other public
interest in the subject matter of those categories and the
potential for declassifying a significant part of the
information contained in them. The Committee underscores the
importance of this requirement, which applies to the other
operational exemptions in Title VII, and also reiterates its
interest in being advised by the DNI about the benefits of
coordinating the five decennial reviews presently required by
Title VII.
Section 412. Membership of the Director of National Intelligence on the
Transportation Security Oversight Board
Section 412 substitutes the DNI, or the DNI's designee, as
a member of the Transportation Security Oversight Board
established under Section 115(b)(1) of Title 49, United States
Code, in place of the CIA Director or CIA Director's designee.
Section 413. Director of National Intelligence report on retirement
benefits for former employees of Air America
Section 413 provides for a report by the DNI on the
advisability of providing federal retirement benefits to United
States citizens who were employees of Air America or an
associated company prior to 1977, during the time that the
company was owned or controlled by the United States and
operated by the CIA.
There were bills in the Senate and House (S. 651 and H.R.
1276 during the 109th Congress and H.R. 1271 in the 110th
Congress) that would have provided federal retirement benefits
for those employees. By including Section 413 in this
authorization bill, the Committee takes no position on the
merits of that legislation.
Although the section invites the DNI to submit any
recommendations on the ultimate question of providing benefits,
the main purpose of the report is to provide Congress with the
facts upon which Congress can make that determination.
Accordingly, Section 413 outlines the factual elements required
by the report. To aid in the preparation of the report, the
section authorizes the assistance of the Comptroller General.
Among the elements of the report should be: the relationship of
Air America to the CIA, the missions it performed, and the
casualties its employees suffered, as well as the retirement
benefits that had been contracted for or promised to Air
America employees and the retirement benefits Air America
employees received.
On September 25, 2007, the CIA provided a three page letter
to the congressional intelligence and appropriations committees
in response to the Senate Select Committee on Intelligence
Report 109-259 to S. 3237, requesting a report on ``the
advisability of providing federal retirement benefits to United
States citizens who were employees of Air America or an
associated company prior to 1977, during the time that the
company was owned or controlled by the United States and
operated by the CIA.'' Although the letter describes the legal
basis for denying federal retirement benefits to employees of
Air America, it did not provide the factual background that
would allow Congress to make an assessment of whether to
provide employees of Air America with federal retirement
benefits. The report requested in Section 413 therefore
continues to be necessary for a comprehensive exploration of
the underlying issues.
Section 414. Repeal of certain authorities relating to the Office of
the National Counterintelligence Executive
Section 414 amends the authorities and structure of the
Office of the NCIX to eliminate certain independent
administrative authorities that had been vested in the NCIX
when that official was appointed by and reported to the
President. Those authorities are unnecessary now that the NCIX
is to be appointed by and is under the authority of the DNI.
Section 415. Applicability of the Privacy Act to the Director of
National Intelligence and Office of the Director of National
Intelligence
The Privacy Act (5 U.S.C. 552a) has long contained a
provision under which the DCI and then (after enactment of the
Intelligence Reform Act) the CIA Director could promulgate
rules to exempt any system of records within the CIA from
certain disclosure requirements under the Act. The provision
was designed to ensure that the CIA could provide safeguards
for certain sensitive information in its records systems. In
assuming the leadership of the Intelligence Community, the DNI
similarly requires the ability to safeguard sensitive
information in records systems within the ODNI. Section 414
extends to the DNI the authority to promulgate rules under
which records systems of the ODNI may be exempted from certain
Privacy Act disclosure requirements.
Section 416. Inapplicability of Federal Advisory Committee Act to
advisory committees of the Office of the Director of National
Intelligence
Congress enacted the Federal Advisory Committee Act (FACA)
(5 U.S.C. App.) to regulate the use of advisory committees
throughout the Federal Government. FACA sets forth the
responsibilities of the Executive branch with regard to such
committees and outlines procedures and requirements for them.
As originally enacted in 1972, FACA expressly exempted advisory
committees utilized by the CIA and the Federal Reserve System.
Section 416 amends FACA to extend this exemption to advisory
committees established or used by the ODNI. The DNI should
inform the intelligence committees periodically about the
composition and use by the ODNI of advisory committees.
Subtitle B--Central Intelligence Agency
Section 421. Inapplicability to the Director of the Central
Intelligence Agency of requirement for annual report on
progress in auditable financial statements
Section 421 relieves the CIA Director from the requirement
in Section 114A of the National Security Act of 1947 to submit
to the congressional intelligence committees an annual report
describing the activities being taken to ensure that financial
statements of the CIA can be audited in accordance with
applicable law and the requirements of OMB. Although the
Committee remains concerned that the CIA has had minimal
success in achieving unqualified opinions on its financial
statements, the report required by Section 114A, however, is
unnecessary as the Committee now receives annual audits of
CIA's financial statements from the CIA Inspector General. The
requirements of Section 114A continue to apply to the Directors
of NSA, DIA, and NGA.
Section 422. Additional functions and authorities for protective
personnel of the Central Intelligence Agency
Section 422 amends Section 5(a)(4) of the CIA Act of 1949
(50 U.S.C. 403f(a)(4)) which authorizes protective functions by
designated security personnel who serve on CIA protective
details.
Section 422 authorizes protective detail personnel, when
engaged in, and in furtherance of, the performance of
protective functions, to make arrests in two circumstances.
Protective detail personnel may make arrests without a warrant
for any offense against the United States--whether a felony,
misdemeanor, or infraction--that is committed in their
presence. They may also make arrests without a warrant if they
have reasonable grounds to believe that the person to be
arrested has committed or is committing a felony, but not other
offenses, under the laws of the United States. The provision
specifically does not grant any authority to serve civil
process or to investigate crimes.
Section 422 provides that the CIA Director and the Attorney
General will issue regulations or guidelines that will provide
safeguards and procedures to ensure the proper exercise of this
authority. These shall be provided to the congressional
intelligence committees.
The authority provided by this section is consistent with
those of other Federal elements with protective functions, such
as the Secret Service (18 U.S.C. 3056(c)(1)(C)), the State
Department Diplomatic Security Service (22 U.S.C. 2709(a)(5)),
and the United States Capitol Police (2 U.S.C. 1966(c)). The
grant of arrest authority is supplemental to all other
authority CIA protective detail personnel have by virtue of
their statutory responsibility to perform the protective
functions set forth in the CIA Act of 1949.
In requesting that the Congress extend this authority to
the CIA, the DNI has represented that this ``arrest authority
will contribute significantly to the ability of CIA protective
detail personnel to fulfill their responsibility to protect
officials against serious threats without being dependent on
the response of federal, state, or local law enforcement
officers.'' It is essential, in the regulations or guidelines
approved by the CIA Director and the Attorney General, and in
the supervision and training of protective duty personnel, that
the use of the authority is firmly kept to its purpose, namely,
protecting officials and any other covered persons against
serious threats.
Section 422 also authorizes the CIA Director on the request
of the DNI to make CIA protective detail personnel available to
the DNI and to other personnel within the ODNI.
The CIA Director should provide to the congressional
intelligence committees regulations or guidelines that are
approved by the Director and the Attorney General. The Director
should also keep the congressional intelligence committees
fully and currently informed about any use of this authority.
Section 423. Technical amendments relating to titles of certain Central
Intelligence Agency positions
Section 423 replaces out-of-date titles for CIA positions
with the current titles of the successors of those positions in
Section 17 of the Central Intelligence Agency Act of 1949 (50
U.S.C. 403q). This provision of Section 17 pertains to the
obligation of the CIA Inspector General to notify the
congressional intelligence committees about investigations,
inspections, or audits concerning high-ranking CIA officials.
Subtitle C--Defense Intelligence Components
Section 431. Enhancement of National Security Agency training program
Section 16 of the National Security Agency Act of 1959 (50
U.S.C. 402 note) authorizes the National Security Agency (NSA)
to establish an undergraduate training program to facilitate
recruitment of individuals with skills critical to its mission.
Section 431 amends Section 16 to permit the NSA Director to
protect intelligence sources and methods by deleting a
requirement that NSA publicly identify to educational
institutions students who are NSA employees or training program
participants. Deletion of this disclosure requirement will
enhance the ability of NSA to protect personnel and prospective
personnel and to preserve the ability of training program
participants to undertake future clandestine or other sensitive
assignments for the Intelligence Community.
The Committee recognizes that nondisclosure is appropriate
when disclosure would threaten intelligence sources or methods,
would endanger the life or safety of the student, or would
limit the employee's or prospective employee's ability to
perform intelligence activities in the future. Notwithstanding
the deletion of the disclosure requirement, the Committee
expects NSA to continue to prohibit participants in the
training program from engaging in any intelligence functions at
the institutions they attend under the program. See H.R. Rep.
No. 99-690, Part I (July 17, 1986) (``NSA employees attending
an institution under the program will have no intelligence
function whatever to perform at the institution.'').
Section 432. Codification of authorities of National Security Agency
protective personnel
Section 432 amends the National Security Agency Act of 1959
(50 U.S.C. 402 note) by adding a new Section 20 to clarify and
enhance the authority of protective details for NSA.
New Section 21(a) would authorize the Director of NSA to
designate NSA personnel to perform protective detail functions
for the Director and other personnel of NSA who are designated
from time to time by the Director as requiring protection.
Section 11 of the NSA Act of 1959 presently provides that the
Director of NSA may authorize agency personnel to perform
certain security functions at NSA headquarters, at certain
other facilities, and around the perimeter of those facilities.
The new authority for protective details would enable the
Director of the NSA to provide security when the Director or
other designated personnel require security away from those
facilities.
New Section 21(b) would provide that NSA personnel, when
engaged in performing protective detail functions, and in
furtherance of those functions, may exercise the same arrest
authority that Section 422 provides for CIA protective detail
personnel. The arrest authority for NSA protective detail
personnel would be subject to guidelines approved by the
Director of NSA and the Attorney General. The purpose and
extent of that arrest authority, the limitations on it, and
reporting expectations about it are described in the section-
by-section explanation for Section 422. That analysis and
explanation applies equally to the arrest authority provided to
NSA protective detail personnel by Section 21(b).
While this bill provides separate authority for CIA and NSA
protective details, the DNI should advise the congressional
intelligence committees whether overall policies, procedures,
and authority should be provided for protective services, when
necessary, for other IC elements or personnel (or their
immediate families).
Section 433. Inspector General matters
The Inspector General Act of 1978 (Pub. L. No. 95-452
(October 12, 1978)) established a government-wide system of
Inspectors General, some appointed by the President with the
advice and consent of the Senate and others ``administratively
appointed'' by the heads of their respective Federal entities.
These IGs were authorized to ``conduct and supervise audits and
investigations relating to the programs and operations'' of the
government and ``to promote economy, efficiency, and
effectiveness in the administration of, and . . . to prevent
and detect fraud and abuse in, such programs and operations.''
5 U.S.C. App. 2. They also perform an important reporting
function, ``keeping the head of the establishment and the
Congress fully and currently informed about problems and
deficiencies relating to the administration of . . . programs
and operations and the necessity for and progress of corrective
action.'' Id. The investigative authorities exercised by
Inspectors General, and their relative independence from the
government operations they audit and investigate, provide an
important mechanism to ensure that the operations of the
government are conducted as efficiently and effectively as
possible.
The IGs of the CIA and Departments of Defense, Energy,
Homeland Security, Justice, State, and Treasury are appointed
by the President with the advice and consent of the Senate.
These IGs--authorized by either the Inspector General Act of
1978 or Section 17 of the CIA Act of 1949--enjoy a degree of
independence from all but the head of their respective
departments or agencies. They also have explicit statutory
authority to access information from their departments or
agencies or other United States Government departments and
agencies and may use subpoenas to access information (e.g.,
from an agency contractor) necessary to carry out their
authorized functions.
The National Reconnaissance Office, the Defense
Intelligence Agency, the National Security Agency and the
National Geospatial-Intelligence Agency have established their
own ``administrative'' Inspectors General. However, because
they are not identified in Section 8G of the Inspector General
Act of 1978, they lack explicit statutory authorization to
access information relevant to their audits or investigations,
or to compel the production of information via subpoena. This
lack of authority has impeded access to information, in
particular information from contractors that is necessary for
them to perform their important function. These Inspectors
General also lack the indicia of independence necessary for the
Government Accountability Office to recognize their annual
financial statement audits as being in compliance with the
Chief Financial Officers Act of 1990 (Pub. L. No. 101-576
(November 15, 1990)). The lack of independence also prevents
the DoD IG, and would prevent the Inspector General of the
Intelligence Community, from relying on the results of NRO,
DIA, NSA, or NGA Inspector General audits or investigations
that must meet ``generally accepted government auditing
standards.''
To provide an additional level of independence and to
ensure prompt access to the information necessary for these IGs
to perform their audits and investigations, Section 433 amends
Section 8G(a)(2) of the Inspector General Act of 1978 to
include NRO, DIA, NSA, and NGA as ``designated federal
entities.'' As so designated, the heads of these IC elements
will be required by statute to administratively appoint
Inspectors General for these agencies.
Also, as designated Inspectors General under the Inspector
General Act of 1978, these Inspectors General will be
responsible to the heads of the NRO, DIA, NSA, and NGA. The
removal or transfer of any of these IGs by the head of their
office or agency must be promptly reported to the congressional
intelligence committees. These Inspectors General will also be
able to exercise other investigative authorities, including
those governing access to information and the issuance of
subpoenas, utilized by other Inspectors General under the
Inspector General Act of 1978.
To protect vital national security interests, Section 433
permits the Secretary of Defense, in consultation with the DNI,
to prohibit the Inspectors General of the NRO, DIA, NSA, and
NGA from initiating, carrying out, or completing any audit or
investigation they are otherwise authorized to conduct. This
authority is similar to the authority of the CIA Director under
Section 17 of the CIA Act of 1949 with respect to the Inspector
General of the CIA and the authority of the Secretary of
Defense under Section 8 of the Inspector General Act of 1978
with respect to the DoD Inspector General. It will provide the
President, through the Secretary of Defense, in consultation
with the DNI, a mechanism to protect extremely sensitive
intelligence sources and methods or other vital national
security interests. The Committee expects that this authority
will be exercised rarely by the DNI or the Secretary of
Defense.
Section 434. Confirmation of appointment of heads of certain components
of the intelligence community
Under present law and practice, the directors of the NSA,
NGA, and NRO, each with a distinct and significant role in the
national intelligence mission, are not confirmed by the Senate
in relation to their leadership of these agencies. Presently,
the President appoints the Directors of NSA and NGA, and the
Secretary of Defense appoints the Director of the NRO. None of
the appointments must be confirmed by the Senate, unless a
military officer is promoted or transferred into the position.
Under that circumstance, Senate confirmation of the promotion
or assignment is the responsibility of the Committee on Armed
Services. That committee's review, however, relates to the
military promotion or assignment and not specifically to the
assumption by the individual of the leadership of a critical IC
element.
Section 434 provides, expressly and uniformly, that the
heads of each of these entities shall be nominated by the
President and that the nominations will be confirmed by the
Senate. NSA, NGA, and NRO play a critical role in the national
intelligence mission. Their spending comprises a significant
portion of the entire intelligence budget of the United States,
and a substantial portion of the NIP. Through advice and
consent, the Senate can enable the Congress to fulfill more
completely its responsibility for providing oversight to the
intelligence activities of the United States Government.
Section 434 does not alter the role of the Committee on Armed
Services in reviewing and approving the promotion or assignment
of military officers.
Section 434(e) provides that the amendments made by Section
434 apply prospectively. Therefore, the Directors of NSA, NGA,
and NRO on the date of the enactment of this Act will not be
affected by the amendments, which will apply initially to the
appointment and confirmation of their successors.
Section 435. Clarification of national security missions of National
Geospatial-Intelligence Agency for analysis and dissemination
of certain intelligence information
The National Imagery and Mapping Agency Act of 1996 (Pub.
L. No. 104-201 (September 23, 1996) (NIMA Act)) formally merged
the imagery analysis and mapping efforts of the Department of
Defense and the CIA. In the NIMA Act, Congress cited a need
``to provide a single agency focus for the growing number and
diverse types of customers for imagery and geospatial
information resources within the Government . . . to harness,
leverage, and focus rapid technological developments to serve
the imagery, imagery intelligence, and geospatial information
customers.'' Section 1102(1) of the NIMA Act. Since then, there
have been rapid developments in airborne and commercial imagery
platforms, new imagery and geospatial phenomenology, full-
motion video, and geospatial analysis tools.
Section 921 of the National Defense Authorization Act for
Fiscal Year 2004 (Pub. L. No. 108-136 (November 24, 2003))
changed the name of the National Imagery and Mapping Agency to
the National Geospatial-Intelligence Agency. The name change
was intended to introduce the term ``geospatial intelligence''
to better describe the unified activities of NGA related to the
``analysis and visual representation of characteristics of the
earth and activity on its surface.'' See S. Rep. 108-46 (May
13, 2003) (accompanying The National Defense Authorization Act
for Fiscal Year 2004, S. 1050, 108th Cong., 1st Sess.).
Though the NGA has made significant progress toward
unifying the traditional imagery analysis and mapping missions
of the CIA and Department of Defense, it has been slow to
embrace other facets of ``geospatial intelligence,'' including
the processing, storage, and dissemination of full-motion video
(FMV) and ground-based photography. Rather, the NGA's
geospatial products repositories--containing predominantly
overhead imagery and mapping products--continue to reflect its
heritage. While the NGA is belatedly beginning to incorporate
more airborne and commercial imagery, its data holdings and
products are nearly devoid of FMV and ground-based photography.
The Committee believes that FMV and ground-based
photography should be included, with available positional data,
in NGA data repositories for retrieval on Department of Defense
and IC networks. Current mission planners and military
personnel are well-served with traditional imagery products and
maps, but FMV of the route to and from a facility or
photographs of what a facility would look like to a foot
soldier--rather than from an aircraft--would be of immense
value to military personnel and intelligence officers. Ground-
based photography is amply available from open sources, as well
as other government sources such as military units, United
States embassy personnel, Defense Attaches, Special Operations
Forces, foreign allies, and clandestine officers. These
products should be better incorporated into NGA data holdings.
To address these concerns, Section 435 adds an additional
national security mission to the responsibilities of the NGA.
To fulfill this new mission, NGA would be required, as directed
by the DNI, to develop a system to facilitate the analysis,
dissemination, and incorporation of likenesses, videos, or
presentations produced by ground-based platforms, including
handheld or clandestine photography taken by or on behalf of
human intelligence collection organizations or available as
open-source information into the National System for Geospatial
Intelligence.
Section 435 also makes clear that this new responsibility
does not include the authority to manage the tasking of
handheld or clandestine photography taken by or on behalf of
human intelligence collection organizations. Although Section
435 does not give the NGA direct authority to set technical
requirements for collection of handheld or clandestine
photography, the Committee encourages the NGA to engage IC
partners on these technical requirements to ensure that their
output can be incorporated into the National System for
Geospatial-Intelligence.
Section 435 does not modify the definition of ``imagery''
found in Section 467(2)(A) of Title 10, U.S.C., or alter any of
the existing national security missions of the NGA. With
Section 435, the Committee stresses the merits of FMV and
ground-based photography and clarifies that the exclusion of
``handheld or clandestine photography taken by or on behalf of
human intelligence organizations'' from the definition of
``imagery'' under the NIMA Act does not prevent the
exploitation, dissemination, and archiving of that photography.
In other words, NGA would still not dictate how human
intelligence agencies collect such ground-based photography,
have authority to modify its classification or dissemination
limitations, or manage the collection requirements for such
photography. Rather, NGA should simply avail itself of this
ground-based photography, regardless of the source, but within
the security handling guidelines consistent with the
photography's classification as determined by the appropriate
authority.
Subtitle D--Other Elements
Section 441. Clarification of inclusion of Coast Guard and Drug
Enforcement Administration as elements of the intelligence
community
Section 441 restores, with respect to the United States
Coast Guard, the prior definition of ``intelligence community''
in the National Security Act of 1947 applicable to that
service. See 50 U.S.C. 401a. Section 1073 of the Intelligence
Reform Act modified the definition of ``intelligence
community,'' inadvertently limiting the Coast Guard's inclusion
in the Intelligence Community to the Office of Intelligence or
those portions of the Coast Guard concerned with the analysis
of intelligence. Section 441 clarifies that all of the Coast
Guard's intelligence elements are included within the
definition of the ``intelligence community.''
Section 441 also codifies the joint decision of the DNI and
Attorney General to designate an office within the Drug
Enforcement Administration as an element of the Intelligence
Community.
TITLE V--FOREIGN INTELLIGENCE AND INFORMATION COMMISSION
Section 501. Short Title
Title V of the bill establishes a Foreign Intelligence and
Information Commission (``the Commission'') to assess needs and
provide recommendations to improve foreign intelligence and
information collection, analysis and reporting. Section 501
provides that this title may be cited as the ``Foreign
Intelligence and Information Commission Act.''
Section 502. Definitions
Section 502 provides definitions, including subsection
502(6) which defines ``information'' to include information of
relevance to the foreign policy of the United States collected
and conveyed through diplomatic reporting and other reporting
by personnel of the Government of the United States who are not
employed by an element of the Intelligence Community, including
public and open-source information.
Section 503. Findings
Section 503 provides findings of Congress. Among the
findings are: Accurate, timely, and comprehensive foreign
intelligence and information are critical to the national
security of the United States and the furtherance of the
foreign policy goals of the United States; it is in the
national security and foreign policy interests of the United
States to ensure the global deployment of personnel of the
Government of the United States who are responsible for
collecting, reporting, and analyzing foreign Intelligence
Information, including specifically personnel from the
Intelligence Community and the Department of State, as well as
other elements of the Government of the United States, and that
adequate resources are committed to effect such collection,
reporting and analysis.
Section 504. Establishment and functions of the Commission
Section 504 sets forth the functions of the Commission to
include evaluating global strategies of the United States to
collect and analyze foreign intelligence and information based
on current and projected national security and foreign policy
priorities; providing recommendations to improve the process
for formulating such strategies; evaluating the extent to which
the Government of the United States coordinates such strategies
across agencies and clandestine, diplomatic, military and open-
source channels; and providing recommendations to improve that
coordination.
In addition, the functions of the Commission also include
evaluating and providing recommendations related to the
allocation of human and budgetary resources through the
interagency process; the role of country missions in the
interagency process; the extent to which collection and
analytic capabilities meet requirements related to strategic
issues and anticipating crises or emerging threats and whether
human and budgetary resources have been directed to such
requirements; the role of out-of-capital embassy posts in
contributing to information collection objectives; the
promotion and development of language, cultural training and
other relevant qualifications within the Intelligence Community
and the Department of State; and the capabilities to collect
and report on ungoverned and undergoverned countries and
regions, terrorist safe havens, stability, radicalization, and
other concerns.
Section 505. Members and staff of the Commission
Section 505 establishes that the Commission shall be
composed of 14 members, to include three members appointed by
the majority leader of the Senate, three members appointed by
the minority leader of the Senate, three members appointed by
the Speaker of the House of Representatives, three members
appointed by the minority leader of the House of
Representatives, one nonvoting member appointed by the Director
of National Intelligence, and one nonvoting member appointed by
the Secretary of State.
Members of the Commission shall be private citizens with
knowledge and experience in foreign intelligence and
information collection, analysis, and reporting; knowledge and
experience in national security and foreign policy of the
United States gained through service in the Department of State
or other appropriate agency or department or independent
organization with expertise in the field of international
affairs; or knowledge and experience with foreign policy
decision making. The members of the Commission shall designate
one of the voting members to serve as chair.
Subsection 505(b) provides for the staff of the Commission
and the selection of an Executive Director.
Section 506. Powers and duties of the Commission
Section 506 provides the powers and duties of the
Commission, including holding hearings, receiving evidence, and
issuing and enforcement of subpoenas.
Section 507. Report of the Commission
Section 507 provides that no later than 18 months after the
appointment of members, the Commission shall submit an interim
report to the congressional intelligence committees. No later
than 6 months thereafter, the Commission shall submit a final
report to the President, the Director of National Intelligence,
the Secretary of State, and the congressional intelligence
committees.
Section 508. Termination
Section 508 provides that the Commission shall terminate 60
days after the submission of the Commission's final report.
Section 509. Nonapplicability of Federal Advisory Committee Act
Section 509 provides that the Federal Advisory Committee
Act (5 U.S.C. App.) does not apply to the Commission.
Section 510. Funding
Section 510 authorizes that of the amounts available for
the NIP for fiscal year 2009, $5,000,000 shall be available for
transfer to the Commission.
TITLE
