Print[Senate Report 111-55]
[From the U.S. Government Printing Office]
Calendar No. 120
111th Congress Report
SENATE
1st Session 111-55
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INTELLIGENCE AUTHORIZATION ACT FOR FISCAL YEAR 2010
_______
July 22, 2009.--Ordered to be printed
_______
Mrs. Feinstein, from the Select Committee on Intelligence, submitted
the following
R E P O R T
together with
ADDITIONAL VIEWS
[To accompany S. 1494]
The Select Committee on Intelligence, having considered an
original bill (S. 1494) to authorize appropriations for fiscal
year 2010 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 2010 that is being reported by 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 2010.
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 (expressed as full-time equivalent positions) for fiscal
year 2010 are contained in the 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 ceiling adjustments
Section 103 is intended to provide additional flexibility
to the Director of National Intelligence (DNI) in managing the
civilian personnel of the Intelligence Community. Section
103(a) provides that the DNI may authorize employment of
civilian personnel (expressed as full-time equivalent
positions) in fiscal year 2010 in excess of the number of
authorized full-time equivalent positions by an amount not
exceeding 5 percent (rather than the 2 percent in prior law) of
the total limit applicable to each Intelligence Community
element under Section 102. The DNI may do so only if necessary
to the performance of important intelligence functions.
Section 103(b) provides additional flexibility when the
heads of Intelligence Community elements determine that work
currently performed by contract personnel should be performed
by government employees. It does so by authorizing the DNI to
authorize employment of additional full-time equivalent
personnel in a number equal to the number of full-time
equivalent contract personnel currently performing that work.
The initial exercise of this authority must be reported in
advance to the congressional intelligence committees. The
Committee expects this authority to be implemented in
accordance with a plan that includes adequate support for
personnel. Exercise of this authority should result in an
actual reduction of the number of contract personnel and not a
shift of resources to hire other contract personnel.
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 with respect to legislatively-fixed
ceilings were inconsistent, and included not counting certain
personnel at all against personnel ceilings. The committees
requested that the Intelligence Community Chief Human Capital
Officer (IC CHCO) ensure that by the beginning of fiscal year
2010 there would be a uniform and accurate method of counting
all Intelligence Community employees under a system of
personnel levels expressed as full-time equivalents. The
committees also expressed their view that the DNI express the
personnel levels for civilian employees of the Intelligence
Community as full-time equivalent positions in the
congressional budget justifications for fiscal year 2010. The
DNI has done so. In addition, the IC CHCO and the Chief
Financial Officer issued guidance in 2008 to ensure a uniform
method for counting Intelligence Community employees. Section
103(c) directs the DNI to establish formal guidance, including
exemptions from personnel levels, for student, reserve corps,
joint duty, long-term training and similar programs.
In prior years the DNI has stated that statutory personnel
ceilings have led to the increased use of contract personnel
and have hindered the Intelligence Community's civilian joint
duty, student employment, and National Intelligence Reserve
Corps programs. The DNI has requested the flexibility to manage
personnel levels according to budget resources rather than
subject to fixed personnel numbers set for the end of the
fiscal year. The DNI has stressed that no major departments in
the U.S. government are subjected to statutory civilian
personnel ceilings. In the Administration's request for
legislative authorities as part of the Intelligence
Authorization Act for Fiscal Year 2010, the DNI again requested
the authority to manage personnel levels according to budget
resources and in addition, for the first time, requested a
legislative provision, similar to 10 U.S.C. 129, which would
prohibit legislatively-fixed civilian end-strength personnel
ceilings on the Intelligence Community.
In general, the Committee is supportive of eliminating
fixed personnel ceilings on the number of Intelligence
Community civilian personnel in order to enable the
Intelligence Community to manage to budget beginning in fiscal
year 2011. The Committee has not adopted this legislative
priority of the DNI at this time, however, in light of the fact
that the IC CHCO is currently undertaking a study of the
overall civilian personnel requirements for the Intelligence
Community, which is expected to be completed in September 2009.
The Committee believes there should be an analysis of the
overall long-term personnel requirements of the Intelligence
Community before the personnel ceiling requirement is removed.
The Committee also requests that the DNI provide, in support of
the fiscal year 2011 budget request, information about how
full-time equivalent or other employment measurements will be
used as a budgetary planning tool, and for administrative
controls on personnel decisions, even if Congress determines to
lift express statutory limits on personnel numbers in favor of
management-to-budget.
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 equivalent personnel levels for the
elements within the ICMA for fiscal year 2010.
Subsection (a) authorizes appropriations of $786,812,000
for fiscal year 2010 for the activities of the ICMA. Subsection
(b) authorizes 792 full-time equivalent personnel for elements
within the ICMA for fiscal year 2010 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 full-time
equivalent 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, 2011.
Section 105. Restriction on conduct of intelligence activities
Section 105 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.
TITLE II--CENTRAL INTELLIGENCE AGENCY RETIREMENT AND DISABILITY SYSTEM
Section 201. Authorization of appropriations
Section 201 authorizes appropriations in the amount of
$290,900,000 for fiscal year 2010 for the Central Intelligence
Agency (CIA) Retirement and Disability Fund.
Section 202. Technical modification 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 details to elements of the
Intelligence Community
Section 302 extends from one year to up to three years the
length of time that United States Government personnel may be
detailed to the staff of an element of the Intelligence
Community funded through the National Intelligence Program from
another element of the Intelligence Community or from another
element of the United States Government on a reimbursable basis
or non-reimbursable basis, under which the employee continues
to be paid by the sending agency. To utilize this authority,
the joint agreement of the head of the receiving element and
the head of the detailing element (or the designees of such
officials) is required. This authority will provide flexibility
for elements of the Intelligence Community to receive support
from other elements of the United States Government for
community-wide activities where both the agencies would benefit
from the detail. The DNI is seeking this authority primarily in
aid of the Intelligence Community's Joint Duty Program which
Congress has mandated to foster the development of personnel
who have broad Intelligence Community experience and
perspective. Joint duty assignments are from one to three years
in length. The ability to provide for details of up to three
years is therefore important in assisting in the achievement of
the goals of the Joint Duty Program.
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, to promote the DNI's ability to
manage the elements of the Intelligence Community as a single
cohesive community.
Subsection 102A(s) enables the DNI, with the concurrence of
a department or agency head, to convert competitive service
positions and incumbents within an Intelligence Community
element to excepted positions. In requesting this authority,
the DNI points out that because of their unique intelligence,
investigative, and national security missions, most
Intelligence Community elements are in the excepted civil
service. However, civilian employees in several smaller
Intelligence Community elements are still covered under
competitive service rules. The ability to convert those
positions to the excepted service will enable the DNI to
establish a more uniform system throughout the Intelligence
Community that will improve personnel flexibility and be
responsive to the need for secrecy. 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 Intelligence Community
where that authority does not now exist. It allows the DNI, in
consultation with the Director of the Office of Management and
Budget (OMB) and the Director of the Office of Personnel
Management (OPM), to authorize the head of a department or
agency with an Intelligence Community 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
critical to accomplishing an important mission and to the
extent necessary to recruit or retain an exceptionally well-
qualified individual for the position. 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
Intelligence Community elements, with concurrence of the
concerned department or agency head and in coordination with
the Director of the OPM, to adopt compensation, performance
management, and scholarship authority that have been authorized
for any other Intelligence Community 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. Award of rank to members of the Senior National
Intelligence Service
Section 304 adds another new subsection to Section 102A of
the National Security Act of 1947. Subsection 102A(v)
authorizes Presidential Rank awards to members of the Senior
National Intelligence Service (SNIS) and other Intelligence
Community senior civilian officers not already covered by such
a rank award program.
According to the DNI, the authority to issue Presidential
Rank Awards was originally enacted in 1978 as a program of the
Senior Executive Service (SES), to honor high-performing senior
career employees. The CIA and other elements of the
Intelligence Community were exempted by statute from the SES,
and thus not eligible for Presidential Rank Awards. Legislation
enacted since 1978 has opened the eligibility for Presidential
Rank Awards to senior civilian officers of exempt agencies,
including the Federal Bureau of Investigation (FBI), the Drug
Enforcement Administration, and members of the Defense
Intelligence Senior Executive Service. This legislation would
authorize the President to recognize members of the SNIS and
other senior civilian officers not already covered by such a
program who deserve such recognition with Presidential Rank, in
a manner consistent with rank awards conferred on other senior
executives of the Executive Branch.
Section 305. Annual personnel level assessments for the Intelligence
Community
Section 305 adds a new Section 506B to Title V of the
National Security Act of 1947 (50 U.S.C. 413 et seq.), an
oversight mechanism 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 contract personnel
information for the concerned element of the Intelligence
Community (with government personnel expressed as full-time
equivalent positions) for the upcoming fiscal year. It requires
that the data be compared against current fiscal year and
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 civilian and contract personnel levels. Finally, the
assessment must contain a list of all contract personnel who
have been the subject of an investigation by the inspector
general of any element of the Intelligence Community during the
previous fiscal year or who 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 managing the Intelligence
Community's personnel levels, particularly in light of a
transition to managing personnel according to available funds.
In recent years, the Committee has been concerned that the
sharp growth in personnel numbers after the terrorist attacks
on September 11, 2001, was unsustainable. In particular, 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.
Another longstanding concern of the Committee has been the
Intelligence Community's increasing reliance upon contract
personnel to meet mission requirements. The Committee has taken
steps to reduce this reliance upon contract personnel that are
described in the classified annex, as well as in the authority
for contract personnel conversion in Section 103. The Committee
believes that the annual personnel level assessment tool will
assist the DNI and the elements of the Intelligence Community
in arriving at an appropriate balance of contract personnel and
permanent government employees.
With regard to historical contract personnel levels to be
included in the annual assessments, the DNI has expressed
concern that there was no completed effort, prior to the ODNI's
contract personnel inventory initiated in June 2006, to
comprehensively capture information on the number and costs of
contract personnel throughout the Intelligence Community.
Because of the concerns outlined by the DNI, the Committee
understands that the information about contract personnel
levels prior to June 2006 may need to be reported as a best
estimate.
Section 306. Temporary personnel authorizations for critical language
training
Section 306 contains findings regarding the continuing lack
of critical language-capable personnel in the Intelligence
Community, and the need to address this shortage through
improved training for current employees, in addition to
recruitment of new employees with these skills. It notes that
existing personnel ceilings can make it difficult to send
employees to get critical language training because individuals
absent for long-term training can still count as part of an
authorized personnel total, making it difficult to replace them
while they are gone.
Section 306 addresses this problem by giving the DNI the
authority to transfer full-time equivalent positions to
elements of the Intelligence Community on a temporary basis, to
enable these elements to replace individuals who are
participating in long-term language training, or to accept
temporary transfers of language-capable employees from other
elements of the Intelligence Community. This provision
complements Section 103, which authorizes the DNI to issue
guidance on the treatment of personnel under personnel
ceilings, to include exemptions from personnel ceilings for
personnel engaged in long-term full-time training. Section 306
authorizes an additional 100 full-time equivalent positions for
the ODNI, and notes that these positions are to be used
specifically to implement the new authorities granted by this
section.
Section 306 refers to ``critical foreign language
training,'' rather than ``foreign language training.'' The
Committee understands that this phrasing will permit the DNI to
use this new authority in situations where an employee of the
Intelligence Community who speaks English as a second language
needs further training in English, in order to comprehend
particular complex or technical subjects.
Subtitle B--Education Programs
Section 311. Permanent authorization for the Pat Roberts Intelligence
Scholars Program
Section 311 provides a permanent authorization for the Pat
Roberts Intelligence Scholars Program (PRISP), which was
originally authorized as a pilot program in Section 318 of the
Intelligence Authorization Act for Fiscal Year 2004 and has
continued under year-to-year appropriations. In addition,
Section 311 would authorize the broader use of PRISP funds
beyond intelligence analysts to include acquisition, science
and technology, and other intelligence professionals, thus
allowing the program to be used to develop the Intelligence
Community workforce across a range of disciplines. Section 311
also authorizes the use of funds to allow students
participating in the program to receive funds for books, travel
expenses and a stipend.
The PRISP has provided education funds to over 800
individuals since its inception in 2004, with an attrition of
less than one percent of program participants. Intelligence
agencies have been supportive of the program as it provides
them the flexibility to compete effectively with the private
sector to recruit individuals who possess critical skills
sought by the Intelligence Community.
Section 312. Modifications to the Louis Stokes Educational Scholarship
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.
The program is known as the Stokes Educational Scholarship
Program, named for Representative Louis Stokes, a former
chairman of the Permanent Select Committee on Intelligence of
the U.S. House of Representatives.
Section 312 is intended to expand and strengthen the Stokes
program. Section 312(a) expands the Stokes program to authorize
the inclusion of graduate students. Section 312(e) 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 (1986) (``NSA employees attending an
institution under the program will have no intelligence
function whatever to perform at the institution.'').
Section 312 is also intended to make the program more
effective by clarifying that ``termination of employment''
includes situations where employees fail to maintain
satisfactory academic standards. According to the DNI, failure
to maintain satisfactory academic performance has always been
grounds for default resulting in the right of the government to
recoup educational costs expended for the benefit of the
defaulting employee. Section 312(c) would also expand the
program by authorizing NSA to offer participation in the Stokes
program to individuals who are not current federal employees.
Finally, Section 312(e) authorizes other intelligence
agencies to establish undergraduate or graduate training
program for civilian employees or prospective civilian
employees that are similar to programs under Section 16 of the
National Security Agency Act.
Section 313. Intelligence officer education programs
Section 313 authorizes the Intelligence Officer Training
Program (IOTP), which builds on two pilot programs that were
authorized in previous years: the NSA ``Pilot Program on
Cryptologic Service Training,'' described in Section 922 of the
Defense Authorization Act for Fiscal Year 2005, Public Law 108-
375 (2004) (50 U.S.C. 402 note), and the Director of Central
Intelligence pilot program ``Improvement of Equality of
Employment Opportunities in the Intelligence Community,'' under
Section 319 of the Intelligence Authorization Act for Fiscal
Year 2003, Public Law 108-177 (2003) (50 U.S.C. 403 note). The
purpose of the IOTP is to encourage the preparation,
recruitment, and retention of civilian personnel for careers in
the Intelligence Community. It is also to help ensure that the
Intelligence Community can better recruit and retain a
workforce that is ethnically and culturally diverse so that it
can accomplish its critical national security mission.
The program is to consist of two parts. First, the program
would to provide financial assistance to individuals through
existing Intelligence Community scholarship authorities to
pursue studies in critical language, analytic, scientific,
technical, or other skills necessary to meet current or
emerging needs of the Intelligence Community. Second, building
on the ODNI's successful Centers for Academic Excellence
program, IOTP is to solicit colleges and universities from
across the country to apply for grants on a competitive basis
to implement academic programs which will help students develop
the critical skills needed for careers in the Intelligence
Community.
Students attending participating colleges and universities
and taking the prescribed course of study may competitively
apply for financial assistance including, but not limited to, a
monthly stipend, tuition assistance, book allowances, and
travel expenses. Students who receive a threshold amount of
assistance are obligated to serve in the Intelligence
Community. The ODNI is to develop application requirements for
students, which could include the successful completion of a
security background investigation.
Section 313 makes permanent an NSA pilot program that
provided grants to academic institutions. The original NSA
pilot program, with its focus on cryptologic service at NSA,
although beneficial to NSA, no longer meets the variety of the
Intelligence Community's critical skills requirements. The
IOTP, with its broader scope, is intended to assist the
Intelligence Community in establishing and building
partnerships with academic institutions and ensure a continuous
pool of qualified entry-level applicants to Intelligence
Community elements, tailored to changing priorities of an
evolving Intelligence Community enterprise.
Section 313 repeals the authorizations for the following
programs that are either incorporated into or replaced by the
IOTP: the pilot program authorized by Section 319 of the
Intelligence Authorization Act for Fiscal Year 2004, Public Law
108-177 (2003) (50 U.S.C. 403 note); the scholarship program
authorized by Section 1043 of the Intelligence Reform and
Terrorism Prevention Act, Public Law 108-458 (2004) (50 U.S.C.
441g-2) (Intelligence Reform Act); and the pilot program
authorized by Section 922 of the Ronald W. Reagan National
Defense Authorization Act for Fiscal Year 2005, Public Law 108-
375 (50 U.S.C. 402 note).
Section 314. Review and report on education programs
Section 314 requires the DNI to review and report on
whether the Pat Roberts Intelligence Scholars Program, the
Louis Stokes Educational Scholarship Program, the Intelligence
Officer Training Program authorized under Section 313, and any
other Intelligence Community education programs are meeting the
needs of the Intelligence Community to prepare, recruit, and
retain a skilled and diverse workforce, and whether they should
be combined or otherwise integrated. The DNI is to submit the
report to the congressional intelligence committees by February
1, 2010.
Subtitle C--Acquisition Matters
Section 321. Vulnerability assessments of major systems
Section 321 adds a new Section 506C to the National
Security Act of 1947. This provision creates an oversight
mechanism 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. 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
National Intelligence Program 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 321 requires the DNI to conduct an initial
vulnerability assessment on every major system and its
significant items of supply proposed for the National
Intelligence Program 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 assessments 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 321 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 321 also
provides that the DNI may conduct a subsequent vulnerability
assessment of a major system when requested to do so by a
congressional intelligence committee.
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 321 requires the DNI to give due consideration to
the vulnerability assessments prepared for the major systems
within the National Intelligence Program. It also requires that
the vulnerability assessments be provided to the congressional
intelligence committees within ten days of their completion.
The Committee encourages the DNI to share the results of these
vulnerability assessments, as appropriate, with other
congressional committees of jurisdiction.
Finally, the section contains definitions for the terms
``items of supply,'' ``major system,'' ``Milestone B,'' and
``vulnerability assessment.''
Section 322. Intelligence Community business system transformation
A business enterprise architecture incorporates an agency's
financial, personnel, procurement, acquisition, logistics, and
planning systems into one interoperable system. Historically,
Intelligence Community elements have pursued unique, stovepiped
systems that do not leverage the investments of other elements
of the Intelligence Community. More recently there has been a
more collaborative effort among the Intelligence Community
elements on the development of business systems, but true
transformation to an integrated Intelligence Community
architecture has not been achieved.
Section 322 adds a new Section 506D to the National
Security Act of 1947. It requires that the DNI create a
business enterprise architecture that defines all Intelligence
Community 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 Intelligence Community business system solutions.
The business enterprise architecture and acquisition strategy
are to be submitted to the congressional intelligence
committees by December 31, 2009.
Section 322 will provide the assurance that business
systems that cost more than a million dollars will be
efficiently and effectively coordinated. It will prohibit the
obligation of appropriated funds for any system that has not
been certified by the DNI either as complying with the
enterprise architecture or as necessary for the national
security or an essential capability. Section 322 will also
require identification 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 323. Reports on the acquisition of major systems
Section 323 adds a new Section 506E to the National
Security Act of 1947 to require a separate report on 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 323 requires that
to the extent that the report is applicable to an element of
the Intelligence Community within the Department of Defense,
the report is to be submitted to the congressional armed
services committees.
Section 323 includes definitions for ``acquisition cost,''
``full life-cycle cost,'' ``major contract,'' ``major system,''
and ``significant test and evaluation.''
Section 324. Excessive cost growth of major systems
Section 324 adds a new Section 506F to the National
Security Act of 1947 to require that, in addition to the
reporting required under Section 102A(q) of the Act and the
amendments made by Section 323, 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 324 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 of a major system 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 to the congressional
intelligence committees a written certification of the same
four items as described above, as well as an updated
notification and accompanying information. The Committee also
expects that if milestone authority had been delegated to the
program manager, such authority would be revoked and returned
to the DNI, or to the Director and Secretary of Defense,
jointly, with respect to Department of Defense programs.
If the required certification, at either the 25 percent or
50 percent level, is not submitted to the congressional
intelligence committees within 90 days of the DNI's
determination of cost growth, Section 324 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.
With respect to major systems for which certifications are
required on the date of enactment of this Act, such
certifications must be submitted within 180 days of the date of
enactment. If the certification is not submitted to the
congressional intelligence committees within 180 days, funds
appropriated for the acquisition of the major system may not be
obligated for a major contract under the program. The
prohibition ceases to apply at the end of the 30-day period of
a continuous session of Congress that begins on the date on
which Congress receives the notification.
Section 324 requires that to the extent that the report is
applicable to an element of the Intelligence Community within
the Department of Defense, the report is also to be submitted
to the congressional armed services committees.
Section 325. Future budget projections
Section 325 adds a new Section 506G to the National
Security Act of 1947. It requires the DNI, with the concurrence
of the OMB, to provide the congressional intelligence
committees with two future budget projections that together
span ten years and form the basis of affordability assessments
required in this section. Section 325 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 325 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 National Intelligence Program.
Section 325 also requires lifecycle cost and milestones for
major systems and a Long-term Budget Projection five 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 projection, but
under two alternative sets of assumptions about cost growth--
one with virtually no cost growth, the other more in line with
experience. Section 325 requires that the Long-term Budget
Projection include 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 OMB inflation estimate to that
element. Both budget projections must be submitted to Congress
with the President's budget request.
Section 325 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 Intelligence Community. 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.
Section 326. National Intelligence Program funded acquisitions
Section 326 adds a new subparagraph (4) to the acquisition
authorities of the DNI collected in Section 102A(n) of the
National Security Act of 1947. Existing subparagraph (1)
authorizes the DNI to exercise the acquisition and
appropriations authorities referred to in the Central
Intelligence Agency Act of 1949 (CIA Act). Although
subparagraph (1) is not explicit, those authorities are found
in Sections 3 and 8 of the CIA Act, except, as provided in
subparagraph (1), for the CIA's authority under section 8(b) to
expend funds without regard to laws and regulations on
Government expenditures for objects of a confidential,
extraordinary, or emergency nature.
Subparagraph (4)(A) authorizes the DNI to make acquisition
authority referred to in Sections 3 and 8(a) of the CIA Act
also available to any Intelligence Community element for an
acquisition that is funded in whole or in majority part by the
National Intelligence Program. Among Intelligence Community
elements, the National Reconnaissance Office (NRO) and the
National Geospatial-Intelligence Agency (NGA) already exercise
these or similar authorities either directly or through the
CIA. The grant of this authority to the DNI is part of the
Committee's effort to ensure that the DNI has the ability to
manage the elements of the Intelligence Community as a
community by enabling the DNI to make available throughout the
Intelligence Community, when warranted, authority originally
enacted for one of its elements.
Subparagraphs 4(B)-(G) establish procedures and controls on
the grant of this authority. The head of an Intelligence
Community element, without delegation, must request in writing
the DNI make the authority available. The request must explain
the need for the acquisition authority including an explanation
why other authorities are insufficient and that the mission of
the element would be impaired if the requested authority is not
exercised. In turn, for the authority to be provided, the DNI,
the Principal Deputy DNI, or a designated Deputy DNI must issue
a written authorization that includes a justification which
supports the use of the authority.
Requests from the head of an Intelligence Community element
that are within the Departments of Defense, Energy, Homeland
Security, Justice, State, and Treasury shall be transmitted to
the DNI in accordance with procedures established by the heads
of those departments. Also, to ensure periodic review,
authorities may not be granted for a class of acquisitions
beyond a renewable 3 years except for a renewable 6 years if
the DNI personally approves the authority. The congressional
intelligence committees shall be notified of all authorizations
granted under subparagraph (4).
Subtitle D--Congressional Oversight, Plans, and Reports
Section 331. General congressional oversight
Section 331 amends the requirements for notifications to
Congress under section 501 of the National Security Act of 1947
by adding a new paragraph stating that there shall be no
exception to the requirements of Title V of the National
Security Act of 1947 to inform the congressional intelligence
committees of all intelligence activities and covert actions.
Section 332. Improvement of notification of Congress regarding
intelligence activities of the United States
Section 332 further amends the requirements for
notifications to Congress under Title V of the National
Security Act of 1947. In the event the DNI or head of an
Intelligence Community element does not provide to the full
congressional intelligence committees the notification required
by Section 502 (relating to intelligence activities other than
covert actions) or Section 503 (relating to covert actions),
the committees shall be provided notice of this fact. This
notice must be submitted in writing in a classified form and
include a description of the main features of the intelligence
activity or covert action as well as a statement of the reasons
for not briefing the full committee. The notice may not contain
a restriction on access to it by all members of the committee.
This section also extends to Section 503 of the National
Security Act of 1947 requirements now in Section 502 of the Act
on the form and contents of reports. Accordingly, reports on
covert actions now shall also contain a concise statement of
any facts pertinent to the covert action and an explanation of
the significance of the covert action. In addition, rather than
the existing requirement to report changes only if they are
``significant,'' under the amendment any change to a covert
action finding must be reported.
Section 333. Requirement to provide legal authority for intelligence
activities
Section 333 amends the National Security Act of 1947 by
requiring that the congressional intelligence committees be
provided with the legal authorities under which all covert
action and all other intelligence activities are or were
conducted.
Section 334. Additional limitation on availability of funds for
intelligence and intelligence-related activities
Section 334 adds to the requirements of Section 504 of the
National Security Act of 1947 an enforcement mechanism for the
notification provisions in Sections 501 through 503. The
section provides that funds may be obligated or expended for an
intelligence activity only if the congressional intelligence
committees have been ``fully and currently informed'' of that
activity. The committees will be considered to have been fully
and currently informed only if all members of the committees
are fully informed or, in the circumstances in which the
amendments made by Section 332 apply, if the committees have
been provided with a classified notice of the main features of
the intelligence activity that does not contain a restriction
on access by all members.
Section 335. Audits of Intelligence Community by the Government
Accountability Office
Section 335 adds a new section to Title 31 on audits and
evaluations of the Intelligence Community by the Government
Accountability Office (GAO). With some modifications, it is
based on S. 385, a bill entitled the ``Intelligence Community
Audit Act of 2009'' which has been referred to the Committee.
As added by Section 335, Section 3523a(b) of Title 31 sets
forth findings by Congress on the authority of the Comptroller
General under present law to perform audits and evaluations of
Intelligence Community elements that are requested by
committees of jurisdiction. Section 3523a(b)(2) states that
requests for such audits may be made for matters relating to a
list of subjects, namely, management and administration in
areas such as strategic planning, financial management,
information technology, human capital, and knowledge and
information sharing. These are subjects on which GAO has
established expertise.
In order to protect national security interests, Section
3523a(c) sets forth limitations and procedures concerning the
use of this audit and evaluation authority when intelligence
sources and methods or covert actions are involved. Among them
are that such audits and evaluations may only be done on
request of a congressional intelligence committee. The results
of such audits and evaluations, or information obtained in the
course of doing them, may only be provided to the congressional
intelligence committees, the DNI, and the head of the relevant
Intelligence Community element. It also states that GAO
employees shall be subject to the same statutory penalties for
unauthorized disclosure as Intelligence Community employees.
Furthermore, all documents that are used during the audit or
evaluation will remain in Intelligence Community facilities.
The Committee intends that the authority provided by this
amendment should be used as a tool to supplement and not
replace existing oversight mechanisms, in order to fill in any
gaps that the congressional intelligence committees, in
consultation with the DNI and Comptroller General, may
identify. The Committee requests that the DNI and Comptroller
General confer periodically about matters for which the GAO may
properly augment oversight, and advise the congressional
intelligence committees about the proposed utilization of GAO
expertise.
Section 336. Report on compliance with laws, international obligations,
and Executive orders on the detention and interrogation
activities of the Intelligence Community
Section 336 requires the DNI to submit a comprehensive
report to the congressional intelligence committees on all
measures taken by the ODNI and by any Intelligence Community
element with relevant responsibilities to comply with the
provisions of applicable law, international obligations, and
executive orders relating to detention or interrogation
activities, including the Detainee Treatment Act of 2005 (title
X of division A of Public Law 109-148) (2005), the Military
Commissions Act of 2006 (Public Law 109-366) (2006), Common
Article 3, the Convention Against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment, Executive Order
13491 (74 Fed. Reg. 4893, relating to ensuring lawful
interrogation) and Executive Order 13493 (74 Fed. Reg. 4901,
relating to detention policy options). The report is to be
submitted no later than December 1, 2009, in an unclassified
form but may include a classified annex.
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
required the President to take action to ensure compliance
including through administrative rules and procedures. Section
6 further provided 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 required the President to issue those
interpretations by Executive order published in the Federal
Register.
The report required by Section 336 shall include a
description of the detention or interrogation methods that have
been determined to comply with applicable law, international
obligations, and Executive order, including the prohibitions of
the Detainee Treatment Act and the Military Commissions Act.
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 336 requires the DNI to report on actions taken to
implement that provision. In addition, the DNI is to report on
actions relating to detention or interrogation taken pursuant
to Executive Order 13941 or recommendations issued by task
forces established under Executive Orders 13941 and 13943.
The report shall include an appendix containing all
guidelines on the application of all applicable law,
international obligations, or Executive orders, including the
Detainee Treatment Act and the Military Commissions Act, to the
detention or interrogation activities, if any, of any
Intelligence Community element. The appendix shall also include
all legal justifications of the Department of Justice about the
meaning or application, if applicable, of laws, international
obligations, or Executive orders with respect to Intelligence
Community detention or interrogation activities, if any, of any
element of the Intelligence Community. The provision 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 336
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.
Section 337. Reports on national security threat posed by Guantanamo
Bay detainees
Section 337 requires the Intelligence Community to provide
the congressional intelligence committees with a quarterly
report outlining the Director of National Intelligence's
assessment on the suitability of detainees previously released
or transferred, or who may be released or transferred, from the
Naval Detention Facility at Guantanamo Bay, Cuba to the United
States or any other country. The quarterly report is to be
provided in addition to, and on the same schedule as, the
report on the prisoner population at the Guantanamo detention
facility required by Section 319 of the Supplemental
Appropriations Act of 2009 (Public Law 111-32).
The report required by Section 337 must include: (1) any
objection or recommendation against the release of a particular
detainee by an element of the Intelligence Community which
judged that the potential threat posed by a particular detainee
warranted continued detention; (2) a detailed description of
the intelligence information that led to such a determination;
(3) if an element of the Intelligence Community previously
recommended against the release of a particular detainee and
later retracted that recommendation, a detailed explanation of
the reasoning for the retraction; and (4) an assessment of
lessons learned from previous releases and transfers of
individuals for whom the Intelligence Community objected or
recommended against release.
The intent of the provision is to allow the congressional
intelligence committees to review the threat assessment and
perform needed oversight in this area. The congressional
intelligence committees are among the few entities that can
receive this kind of detailed information, and it is the
responsibility of the committees to understand the Intelligence
Community's assessments of the threat, or lack thereof, posed
by individual detainees as the Administration considers actions
on Guantanamo detainees in the near future.
Section 338. Report on retirement benefits for former employees of Air
America
Section 338 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 have been bills introduced in the Senate and House in
the past that would have provided federal retirement benefits
for those employees. By including Section 338 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 338 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: (1) the
relationship of Air America to the CIA; (2) the missions it
performed; (3) the casualties its employees suffered; (4) a
description of the retirement benefits that had been contracted
for or promised to Air America employees; and (5) a description
of 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 Committee's report to accompany the
Intelligence Authorization Act for Fiscal Year 2007, S. Rep.
109-259, 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 described the legal basis under current law 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 amend current law to provide
employees of Air America with federal retirement benefits. The
report requested in Section 338 therefore continues to be
necessary for a comprehensive exploration of the underlying
issues.
Section 339. Report and strategic plan on biological weapons
Section 339 provides for a report by the DNI on the
intelligence collection efforts of the United States against
biological weapons or the threat of biological weapons in the
hands of terrorists, rogue states, or other actors, both
foreign and domestic. The report also should cover intelligence
collection efforts to protect the United States bio-defense
knowledge and infrastructure.
The report required by Section 339 should contain the
following elements: (1) an accurate assessment of the
intelligence collection efforts of the United States dedicated
to detecting the development or use of biological weapons by
state, non-state, or rogue actors, either foreign or domestic;
(2) detailed information on fiscal, human, technical, open
source, and other intelligence collection resources of the
United States for use against the biological weapons threat;
and (3) an assessment of any problems that may reduce the
overall effectiveness of United States intelligence collection
and analysis to identify and protect against biological weapons
or the threat of biological weapons including intelligence
collection gaps or inefficiencies, inadequate information
sharing practices, or inadequate cooperation among agencies or
departments of the United States.
Additionally, Section 339 provides that this report include
a strategic plan prepared by the DNI that, in coordination with
the Attorney General, Secretary of Defense, and Secretary of
Homeland Security, provides for a coordinated action plan for
the Intelligence Community to address and close the gaps
identified in the report required by Section 339(a). This
strategic plan shall also include a description of appropriate
goals, schedules, milestones, or metrics to measure the long-
term effectiveness of the plan and any long-term resource and
human capital issues related to the collection of intelligence
against biological weapons or the threat of biological weapons,
including any recommendation to address shortfalls of
experienced and qualified staff possessing relevant scientific,
language, and technical skills.
Section 339 requires that the DNI submit this report to the
congressional intelligence committees no later than 180 days
after the enactment of this bill. The DNI is required to begin
implementing the strategic plan within 30 days of submitting
the report.
Section 340. Cybersecurity oversight
Section 340 seeks to set up a preliminary framework for
executive and congressional oversight to ensure that the
government's national cybersecurity mission is consistent with
legal authorities and preserves reasonable expectations of
privacy.
Section 340(a) defines three terms: national cyber
investigative joint task force, critical infrastructure, and
cybersecurity program. The definition of the term
``cybersecurity programs'' in section 340(a) is intentionally a
narrow one. Routine firewalls and anti-virus programs, for
example, might be considered cybersecurity programs. The
definition of cybersecurity programs in this section
intentionally excludes those types of routine programs.
Instead, Section 340 focuses on government-wide cybersecurity
programs. These programs use more effective technologies to
integrate cyber defenses across the government among government
entities that wish to, or are directed to, participate. These
types of programs pose challenging new legal and privacy
questions that make congressional and Executive branch
oversight particularly important. Because the section seeks to
provide oversight of only those programs that involve
significant potential privacy implications, the term
``cybersecurity programs'' is also limited by the requirement
that the programs involve personally identifiable data.
Additionally, to be covered by this section, a
cybersecurity program must have one of three characteristics.
First, the definition covers programs in which the agency or
department whose personnel is the intended recipient of the e-
mail or other electronic communication uses another agency or
department of the United States Government to screen personally
identifiable data related to those communications. In these
programs, the agency or department that is the intended
recipient of the communication is not managing or operating the
cybersecurity program; instead, the program is managed by a
government entity like the Department of Homeland Security or
the Department of Defense. Second, the definition covers
programs in which personally identifiable data is transferred
from the agency or department whose personnel is the intended
recipient of the e-mail or other electronic communication to
another agency or department for the purpose of cybersecurity.
This would include, for example, programs in which tips or
other results from cybersecurity operations that contain
personally identifiable data are shared with law enforcement or
other parts of the United States Government. Third, the
definition covers programs in which personally identifiable
data is transferred from the agency or department whose
personnel is the intended recipient of the e-mail or other
electronic communication to an element of the Intelligence
Community.
Section 340(b) requires the President to notify Congress of
cybersecurity programs and provide Congress with five types of
documents: the program's legal justification, any
certifications of the program's legality under 18 U.S.C.
2511(2)(a)(ii) or other statutory provision, any concept of
operations, any privacy impact statement, and any plan for
independent audit or review of the program to be carried out by
the head of the relevant department or agency, in conjunction
with the appropriate inspector general. The notification
requirements of subsection (b) are designed to ensure that
Congress is aware of significant legal, privacy and operational
issues with respect to each new cybersecurity program. For
existing cybersecurity programs, the notification and documents
must be provided no later than 30 days after the date of the
enactment of this Act. For new programs, the notification and
documents must be provided not later than 30 days after the
date of the commencement of operations of a new cybersecurity
program.
Section 340(c) requires the heads of agencies or
departments with responsibility for a cybersecurity program, in
conjunction with the inspector general for that department or
agency, to prepare a report describing the results of any audit
or review under the audit plan and assessing whether the
cybersecurity program is in compliance with, and adequately
described by, the documents submitted to Congress. This
subsection is designed to provide an independent check that the
agencies are conducting cyber operations in a manner consistent
with Executive branch guidance and to supply Congress more
information about the operation of those programs. In addition,
these reports should help identify the key difficulties and
challenges in the cybersecurity programs.
Section 340(d) requires the Inspectors General of the
Department of Homeland Security and the Intelligence Community
to prepare a report on the sharing of cyber threat information
both within the U.S. government and with those responsible for
critical infrastructure. This report should be submitted one
year after the enactment of this Act. In their report, the
Inspectors General should identify any barriers to sharing
cyber threat and vulnerability information, and assess the
effectiveness of current sharing arrangements.
Section 340(e) provides the head of an element of the
Intelligence Community the authority to detail an officer or
employee to the Department of Homeland Security or the National
Cyber Investigative Joint Task Force to assist with
cybersecurity for a period not to exceed three years. This
section will allow Intelligence Community experts to be made
available to the Department of Homeland Security, which serves
as the civilian cyber defense manager but has not been given
the same priority or funding as the Intelligence Community by
the Executive branch. In recognition of this Committee's ample
support for cyber over the last few years, the provision
permits these details to be provided on a nonreimbursable
basis. This detail authority, however, is restricted to a
period not to exceed 3 years to prevent details from being used
as an alternative to building expertise at civilian cyber
defense agencies.
Finally, Section 340(f) provides that the requirements of
this section will terminate on December 31, 2012. During the
next three years, the Executive branch will begin new and
unprecedented cybersecurity programs with new technology and
new legal and privacy challenges. Section 340 will allow
Congress to follow these developments closely and gain a deeper
and broader understanding of cybersecurity issues so that, upon
the termination of this section, it may be replaced with a
permanent framework for oversight.
Section 341. Sense of the Senate on a subcommittee related to
intelligence appropriations
Section 341 is a Sense of the Senate that the Senate should
agree to a resolution amending Section 402 of Senate Resolution
445, 108th Congress, agreed to on October 9, 2004, as proposed
in Senate Resolution 655, 110th Congress, introduced on
September 11, 2008, to establish within the Committee on
Appropriations of the Senate a Subcommittee on Intelligence.
S. Res. 655 outlines the key features of the Subcommittee
on Intelligence. First, the Subcommittee would have exclusive
jurisdiction over all funding for the National Intelligence
Program. Second, no other Appropriations subcommittee could
intervene to review the work of the Intelligence Subcommittee.
Third, Members of the Select Committee on Intelligence who are
Members of the Committee on Appropriations shall have automatic
membership on the Subcommittee on Intelligence. Fourth, the
Chairman and Vice Chairman of the Select Committee on
Intelligence shall serve as ex-officio members of the
subcommittee, if they are not also Members of the Committee on
Appropriations. Fifth, the Chairman and Ranking member of the
Subcommittee on Defense of the Committee on Appropriations
shall have automatic membership on the subcommittee. Finally,
the Chairman and Ranking Member of the subcommittee shall be
selected from among those members who are both members of the
Committee on Appropriations and the Select Committee on
Intelligence.
The Committee believes that the establishment of an
Appropriations Subcommittee on Intelligence will provide a
strong, stable, and capable congressional committee structure
that will improve congressional oversight of the intelligence
activities of the United States and fulfill the recommendations
of the 9/11 Commission as nearly as practicable.
Section 342. Repeal or modification 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 DNI, the Committee
examined some of these recurring reporting requirements.
Section 342 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.
Because the majority of recurring reports provide critical
information relevant to the many challenges facing the
Intelligence Community today, the Committee has proceeded
carefully in eliminating only seven statutory reporting
requirements, a very small percentage of the many recurring
reports currently requested. In addition, the Committee changed
the requirement of one report to make its submission biennial,
rather than annual. The Committee believes that elimination of
these reports will help the Intelligence Community to allocate
its resources properly towards areas of greatest congressional
concern.
The Committee recognizes the concern expressed by the
Intelligence Community about the impact of reporting
requirements. The Committee suggests, for the fiscal year 2011
authorization act request, that the ODNI submit, even in
advance of the Administration's formal requests for
legislation, facts (including the cost of preparing particular
reports and the use of contract personnel, if any, to prepare
reports) and proposals (including the consolidation of reports
and lengthening the intervals between them) that will enable a
fuller evaluation of alternatives for providing information to
Congress. Also, for reports that by law are unclassified, the
Committee requests that the ODNI advise the congressional
intelligence committees about any system that is in place, or
should be put in place, for their public dissemination.
Subtitle E--Other Matters
Section 351. 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
Intelligence Community officials and personnel and certain
contract personnel, 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 Intelligence Community 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
Act extended a similar exemption to the DNI in addition to
applying the existing exemption to the CIA Director.
Section 351 provides to the heads of each Intelligence
Community 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 Intelligence
Community elements. Section 351 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 Intelligence
Community 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 351 unless there is a serious concern
that such contacts and gifts would adversely affect United
States intelligence sources or methods.
Section 352. Exemption of dissemination of terrorist identity
information from Freedom of Information Act
Section 352 provides an exemption for terrorist identity
information disseminated for terrorist screening purposes from
disclosure under the Freedom of Information Act (5 U.S.C. 552)
in order to facilitate on an unclassified basis the sharing of
those elements of information necessary for terrorist screening
purposes.
Section 353. Modification of availability of funds for different
intelligence activities
Section 353 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 Act (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 Intelligence
Community's ability to carry out missions and functions vital
to national security.
Section 354. Limitation on reprogrammings and transfers of funds
Section 354 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 of 1947 allows the
Intelligence Community a certain degree of flexibility in
reprogramming authorized and appropriated funds, as amended by
Section 353, without having to seek additional legislation from
Congress. Section 354 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 355. Protection of certain national security information
Section 355 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 355(a) amends Section 601(a) to increase criminal
penalties for an individual with authorized access to
classified information who intentionally discloses any
information identifying a covert agent, if the individual knows
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)(1) of Section 345 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 (a)(2) of Section 355 of this Act increases
that maximum sentence to 10 years.
Subsection (b) of Section 355 amends Section 603(a) of the
National Security Act of 1947 (50 U.S.C. 423(a)) to provide
that the annual report from the President on the protection of
identities of certain United States undercover intelligence
officers, agents, informants, and sources, also include an
assessment of the need for any modification for the purpose of
improving legal protections for covert agents.
Section 356. National Intelligence Program budget request
Section 601(a) of the Implementing Recommendations of the
9/11 Commission Act of 2007, Public Law 110-53 (2007) (50
U.S.C. 415c), requires the DNI to disclose the aggregate amount
of funds appropriated by Congress for the National Intelligence
Program 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 356 of the bill amends Section 601 of the
Implementing Recommendations of the 9/11 Commission Act of 2007
to require that, on the date that the President submits to
Congress the annual budget request, the President shall
disclose to the public the aggregate amount of appropriations
requested for that fiscal year for the National Intelligence
Program. The section also eliminates the presidential waiver
authority related to the public disclosure by the DNI of the
aggregate amount of funds appropriated by Congress for the
National Intelligence Program for any fiscal year.
Section 357. Improving the review authority of the Public Interest
Declassification Board
Section 357 clarifies that the Public Interest
Declassification Board may conduct reviews in response to
requests from the committee of jurisdiction, or from individual
members of the committee. This will, among other things,
protect the opportunity of a committee's minority to obtain the
benefit of a Public Interest Declassification Board review. It
also clarifies that the Board may consider the proper
classification level of records, rather than simply consider
whether or not they should be classified. This authority is
important to address questions of excessive compartmentation or
other over classification that may impede needed information
sharing or impede adequate reviews within the Executive branch
and oversight by the Congress.
Section 358. 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: (1) the
deposit of funds in a financial institution; (2) the lease or
purchase of real property; (3) the establishment and operation
of a proprietary business on a commercial basis; and (4) 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 (1992) (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 FBI
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 358 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 in a
timely manner. 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 Section 358 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 359. Correcting long-standing material weaknesses
Section 359 requires the heads of the five intelligence
agencies that have been specifically required to produce
auditable financial statements (the CIA, Defense Intelligence
Agency (DIA), NGA, NRO, and NSA) to designate each senior
management official who is responsible for correcting long-
standing, correctable material weaknesses, and to notify the
DNI and the congressional intelligence committees of these
designations.
Under Section 359, the term ``material weakness'' has the
meaning given that term under OMB Circular A-123, Management's
Responsibility for Internal Control, revised December 21, 2004.
In particular, ``[a] material weakness in internal controls is
a reportable condition, or combination of reportable
conditions, that results in more than a remote likelihood that
a material misstatement of the financial statements, or other
significant financial reports, will not be prevented or
detected.''
The Committee has been dissatisfied with the lack of
progress in correcting material weaknesses. Section 359 is
intended to ensure there is clear accountability about who is
responsible for correcting these deficiencies.
Section 359 pertains only to ``long-standing'' material
weaknesses, defined as those that were identified in annual
financial reports no later than fiscal year 2006. Also, Section
359 pertains only to material weaknesses that are correctable
in the near term, i.e., those whose correction is not
substantially dependent on a business information system that
will not be fielded prior to fiscal year 2011. The head of an
Intelligence Community agency head may be designated as the
responsible official.
Section 359 also requires a senior intelligence management
official to notify his agency head within five days of
correcting a long-standing material weakness. The head of the
agency then has 10 days to appoint an independent auditor who
will determine whether the specified long-standing correctable
material weakness has been corrected. If the correction is
verified by the independent audit, the agency head shall notify
the congressional intelligence committees that the material
weakness has been corrected.
The Committee believes that this legislative step is
necessary to establish clear accountability for correcting
these long-standing correctable material weaknesses. The
Committee expects the DNI and Intelligence Community agency
heads to consider progress towards correcting these material
weaknesses to be an important consideration in determining any
awards, bonuses, or promotions for these designated senior
officials.
TITLE IV--MATTERS RELATING TO ELEMENTS OF THE INTELLIGENCE COMMUNITY
Subtitle A--Office of the Director of National Intelligence
Section 401. Accountability reviews by the Director of National
Intelligence
Section 401 provides that the DNI 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 Intelligence Community 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 DNI with respect to his supervision of the
CIA.
Section 401 requires that the DNI, in consultation with the
Attorney General, formulate guidelines and procedures that will
govern accountability reviews. The Committee envisions that
these guidelines will govern the process by which the DNI 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 DNI 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 DNI 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 continued to
stumble along without any imposition of accountability.
The Committee hopes that this modest increase in the DNI'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 DNI 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 National Intelligence Program 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-National Intelligence Program 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 National
Intelligence Program, inability to use or identify current-year
funding, or concerns regarding the augmentation of
appropriations.
These are similar to authorities granted to the 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. Authorities for interagency funding
The DNI should be able to rapidly focus the Intelligence
Community on an intelligence issue through a coordinated effort
that uses all available resources. The ability to coordinate
the Intelligence Community 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 403 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 Intelligence Community mission managers.
Under Section 402, the DNI could authorize the pooling of
resources from various Intelligence Community agencies to
finance national intelligence centers or other organizational
groupings designed to address identified intelligence matters.
The provision also expressly permits Intelligence Community
elements, upon the request of the DNI, to fund or participate
in these interagency activities. The DNI is limited in his use
of this authority to appropriated funds.
Under Section 403, the DNI is to submit a report to the
congressional intelligence committees by February 1st annually
from fiscal year 2011 through fiscal year 2014 providing
details on how this authority has been exercised during the
preceding fiscal year.
Section 404. Location of the Office of the Director of National
Intelligence
Section 404 addresses the issue of the location of the
Office of the DNI. Section 404 repeals the ban on the co-
location of the Office of the DNI with any other Intelligence
Community element, which was to take effect on October 1, 2008,
by replacing that provision of the National Security Act of
1947 (50 U.S.C. 403-3) with a new subsection 103(e) that allows
the ODNI to be located outside the District of Columbia within
the Washington Metropolitan Region.
In his 2008 legislative request for the fiscal year 2009
authorization, the DNI asked, for the first time, that Congress
provide that ``[t]he 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 section 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 ``[a]ll
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.
Pursuant to the Committee's direction during consideration
of the fiscal year 2009 authorization act, the ODNI requested
guidance from the Department of Justice's Office of Legal
Counsel (OLC) about the need for a statute authorizing the
location of the ODNI outside the District of Columbia. The ODNI
has informed the Committee that OLC has informally advised the
ODNI that there is no basis to exclude the ODNI from the
requirement of 4 U.S.C. 72 and that a specific exception is
needed to authorize the location of the ODNI headquarters
outside the District of Columbia. The Committee urges the ODNI
to continue to study, and report to the congressional
intelligence committees, about the impact if any of the ODNI's
current location outside of the District of Columbia on the
daily implementation of the ODNI's responsibilities with
respect to the President, the Congress, and the elements of the
Intelligence Community.
Section 405. Additional duties of the Director of Science and
Technology
Section 405 clarifies the duties of the Director of Science
and Technology (DS&T) and the Director of the National
Intelligence Science and Technology Committee (NISTC). The
Committee expects the DS&T to systematically identify, assess,
and prioritize the most significant intelligence challenges
that require technical solutions, set long-term science and
technology goals, develop a strategy/roadmap to be shared with
the congressional intelligence committees that meets these
goals, and prioritize and coordinate efforts across the
Intelligence Community. As chair of the NISTC, the DS&T should
leverage the expertise of the committee to accomplish these
duties. Section 405(b) is a Sense of the Congress that the DS&T
should report only to a member of the ODNI who is appointed by
the President and confirmed by the Senate.
Section 406. Title and appointment 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 (IC CIO). 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 406 also eliminates the requirement
that the IC CIO be confirmed by the Senate while retaining the
requirement that the IC CIO be appointed by the President. The
continued requirement of presidential appointment emphasizes
that the IC CIO has important responsibilities for the
Intelligence Community enterprise architecture with respect to
the whole of the Intelligence Community.
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 ODNI. It
further provides that the DNI may grant to the IG any of the
duties, responsibilities, and authorities set forth in the
Inspector General Act of 1978. The DNI has appointed an IG 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 2009, 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 Intelligence
Community, with respect to matters within the responsibility
and authority of the DNI, including the manner in which
elements of the Intelligence Community 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 IG is to be established within the ODNI.
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 Intelligence Community 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, audit, or
review if the DNI determines that is necessary to protect vital
national security interests. If the DNI exercises this
authority, the DNI must provide the reasons to the
congressional 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 Intelligence Community 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
Intelligence Community programs and activities within the
responsibility and authority of the DNI. Portions of the
reports involving a component of a department of the United
States Government are to be provided to the head of the
department at the same time the report is provided to the DNI.
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 problems, abuses, or deficiencies. 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, audit or review that
focuses on certain high-ranking officials, the IG is authorized
to report directly to the congressional intelligence
committees.
Intelligence Community 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 Intelligence Community 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 IG for another Intelligence
Community element (or for a parent department or agency), the
Inspectors General shall expeditiously resolve who will
undertake the investigation, inspection, audit, or review. 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 Intelligence Community element must share the
results of any investigation, inspection, audit, or evaluation
with any other IG, including the Inspector General of the
Intelligence Community, who otherwise would have had
jurisdiction over the investigation, inspection, audit, or
evaluation.
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 407 also provides for the transition from the
Office of the IG of the ODNI to the Office of the IG of the
Intelligence Community.
Following the Committee's last report in May 2008 of a
provision establishing an IG of the Intelligence Community,
Congress enacted the Inspector General Reform Act of 2008,
Public Law 110-409. In light of this recent determination by
the Congress to protect and augment the authority of Inspectors
General throughout the Government, the Committee has provided
for conforming changes in the IG provision it is now reporting.
Among these provisions is authority for the IG to appoint a
counsel. Section 407 makes clear that it is not to be construed
to alter the duties and responsibilities of the General Counsel
of the Office of the Director of National Intelligence.
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
Intelligence Community budgetary resources, and shall establish
and oversee a comprehensive and integrated strategic process
for resource management within the Intelligence Community.
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 325.
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 325. 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
be validated and prioritized based on budgetary constraints as
specified in Section 325.
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 Intelligence
Community regarding National Intelligence Program 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 ODNI: (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
Section 410 establishes a National Space Intelligence
Office (NSIO) within the ODNI to facilitate a better
understanding of future threats to U.S. space assets, as well
as potential threats to the United States from space. 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 Intelligence Community 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 (Public Law 98-477 (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 NGA, the NSA, the NRO, and the 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 Intelligence Community
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 Intelligence Community
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.
The Committee also reiterates its interest in being advised
by the DNI about the benefits of coordinating all the decennial
reviews required by Title VII. Specifically, the Committee
requests the DNI, through the Chief Information Officer of the
Intelligence Community, to consider, and advise the
congressional intelligence committees about, conducting the
next review in each covered Intelligence Community element
during Fiscal Year 2010 so that the next review for every
element covered by an operational files exemption under Title
VII, and the following decennial reviews, are conducted in an
integrated manner in accordance with consistent standards
developed under guidance established by the Chief Information
Officer. The committees should be informed about the design,
conduct, and results of these reviews, which should include the
administrative and judicial experience of the various elements
of the Intelligence Community under operational file
exemptions.
Section 412. Counterintelligence initiatives for the Intelligence
Community
Section 412 amends Section 1102(a) of the National Security
Act of 1947 (50 U.S.C. 442a) to eliminate the requirement that
the NCIX perform certain security functions more appropriately
carried out by other components of the Intelligence Community.
Section 413. Applicability of the Privacy Act to the Director of
National Intelligence and the 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 413
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 414. 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 414 amends FACA to extend this exemption, for the same
policy reasons underlying the original CIA exemption, to
advisory committees established or used by the ODNI. Section
414 requires the DNI and the Director of the CIA to inform the
intelligence committees on a yearly basis about the composition
and use by the ODNI and the CIA of advisory committees.
Section 415. Membership of the Director of National Intelligence on the
Transportation Security Oversight Board
Section 415 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 416. Repeal of certain authorities relating to the Office of
the National Counterintelligence Executive
Section 416 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 417. Misuse of the Office of the Director of National
Intelligence name, initials, or seal
Section 417 prohibits the unauthorized use of the official
name, initials or seal of the ODNI. Section 417 also permits
the Attorney General to pursue injunctive relief for such
unauthorized use. The provision is modeled on section 13 of the
CIA Act of 1949 (50 U.S.C. 403(m)) which provides similar
protection against misuse of the name, initials, or seal of the
CIA.
Subtitle B--Central Intelligence Agency
Section 421. Additional functions and authorities for protective
personnel of the Central Intelligence Agency
Section 421 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 421 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.
Section 422. Appeals from decisions involving contracts of the Central
Intelligence Agency
Section 422 amends Section 8(d) of the Contract Disputes
Act of 1978 (41 U.S.C. 607(d)) to provide that an appeal from a
dispute arising out of a CIA contract shall be filed with
whichever of the Armed Services Board of Contract Appeals or
the Civilian Board of Contract Appeals is specified in the
contract and that such board shall have jurisdiction to decide
the appeal.
Section 423. Deputy Director of the Central Intelligence Agency
Section 423 provides for a Deputy Director of the CIA in a
new Section 104B of the National Security Act of 1947 (50
U.S.C. 402 et seq.). Under the new Section 104B, the Deputy
Director of the CIA shall be appointed by the President and
confirmed by the Senate, shall assist the Director of the CIA
in carrying out the Director's duties and responsibilities, and
shall assume those duties and responsibilities in the event of
the Director's absence, disability, or when the position is
vacant.
Prior to the Intelligence Reform Act, Congress had provided
by law for the appointment by the President, with Senate
confirmation, of a Deputy Director of Central Intelligence. The
Intelligence Reform Act abolished that position and was silent
on any deputy to the Director of the CIA. Since enactment of
the Intelligence Reform Act, the position of Deputy Director at
the CIA has been solely a product of administrative action.
Given the sensitive nature of the CIA's operations, the
position of Deputy Director as well as that of the position of
the Director merit consideration through the process of
presidential appointment and Senate confirmation. That process
also ensures that in the event of a vacancy in the position of
Director, or during the absence or disability of the Director,
Congress will have previously expressed its confidence in the
ability of the Deputy Director to assume those additional
duties.
Section 423(c) provides that the amendments made by Section
423 apply prospectively. Therefore, the Deputy Director of the
CIA on the date of enactment will not be affected by the
amendments.
Section 424. Authority to authorize travel on a common carrier
Section 424 amends Section 116(b) of the National Security
Act of 1947 (50 U.S.C. 404k(b)). Section 116(b) of the National
Security Act of 1947 allows the DNI to authorize travel on
common carriers for certain intelligence collection personnel,
and it further allows the DNI to delegate this authority to the
Principal Deputy Director of National Intelligence or to the
Director the Central Intelligence Agency. This provision
permits the Director of the CIA to re-delegate this authority
within the Central Intelligence Agency.
Section 425. Inspector General of the Central Intelligence Agency
Section 425 amends Section 17 of the Central Intelligence
Agency Act of 1949 (50 U.S.C. 403q(b)) which established a
statutory CIA Inspector General. The amendment updates and
clarifies the statute in light of revisions made by Congress in
the Inspector General Reform Act of 2008 (Public Law 110-409)
and the recommendations in the most recent semiannual report of
the CIA IG. Among other provisions, Section 425 expands the
protections against reprisals that now apply to CIA employees
who bring complaints to the CIA IG to any CIA employee who
provides information to the CIA IG. Section 425 provides that
the CIA IG has final approval of the selection of internal and
external candidates for employment with the Office of the IG
and may appoint a counsel who reports to the IG. Section 425
provides that this is not to be construed to alter the duties
and responsibilities of the General Counsel of the CIA.
Section 426. Budget of the Inspector General of the Central
Intelligence Agency
Section 426 further amends Section 17 of the CIA Act to
require the DNI to provide to the President the budget amount
requested by the CIA IG and to provide that information to the
congressional appropriations and intelligence committees,
together with any comments of the CIA IG.
Section 427. Public availability of unclassified versions of certain
intelligence products
Section 427 requires the Director of the Central
Intelligence Agency to make public unclassified versions of
four documents which assess the information gained from the
interrogation of high-value detainees. One of the documents is
a memorandum and the other three are finished intelligence
products. The unclassified versions of these documents will
permit the American people to make their own determination of
the value of the material included in these documents.
Subtitle C--Defense Intelligence Components
Section 431. Inspector General matters
The Inspector General Act of 1978 (5 U.S.C. App.)
establishes 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 are
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 Inspectors General Act of
1978 or Section 17 of the CIA Act--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 NRO, DIA, NSA and NGA 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 could impede 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 (Public Law 101-576). 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 when such audits 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 431 amends
Section 8G(a)(2) of the Inspector General Act of 1978 to
include the NRO, DIA, NSA, and NGA as ``designated federal
entities.'' As so designated, the heads of these Intelligence
Community 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 Inspectors General 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 431
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 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 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 432. 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
Intelligence Community element.
Section 432 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. The 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 National
Intelligence Program. 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 432 does
not alter the role of the Committee on Armed Services in
reviewing and approving the promotion or assignment of military
officers.
Section 432(e) provides that the amendments made by Section
432 apply prospectively. Therefore, the Directors of the 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.
The Committee undertakes to work with the Committee on
Armed Services, as it has done and will do with any other
committee that has jurisdiction over the Executive branch
department of an Intelligence Community element, to provide for
an appropriate manner of proceeding that recognizes the
interests of both committees and ultimately the Senate in an
efficient and thorough nomination process.
Section 433. 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 (Public
Law 104-201 (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 (Public Law 108-136 (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 (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 Intelligence Community 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 433 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 433 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 or
human intelligence collection organizations. Although Section
433 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
Intelligence Community partners on these technical requirements
to ensure that their output can be incorporated into the
National System for Geospatial-Intelligence.
Section 433 does not modify the definition of ``imagery''
found in Section 467(2)(A) of Title 10 of the United States
Code, or alter any of the existing national security missions
of the NGA. With Section 433, 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.
Section 434. Defense Intelligence Agency counterintelligence and
expenditures
Section 434 amends Section 105 of the National Security Act
of 1947, on the responsibilities of Intelligence Community
elements in the Department of Defense, to make clear that the
responsibilities of the DIA include counterintelligence as well
as human intelligence activities. Section 434 also provides
authority for the Director of the DIA to account for
expenditures for human intelligence and counterintelligence in
a manner, similar to that available to the CIA, which does not
disclose human sources. The amendment requires that the DIA
Director shall report annually to the congressional
intelligence committees on the use of that expenditure
authority. It is the intention of the Committee that the DIA
Director shall carefully monitor the use of this authority to
ensure that the flexibility it permits is used only in
furtherance of the counterintelligence and human intelligence
responsibilities of the DIA.
Subtitle D--Other Elements
Section 441. Codification of additional 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.
Section 442. Authorization of appropriations for Coast Guard National
Tactical Integration Office
Section 442 provides research and development (R&D)
appropriation authorization authority to the Coast Guard
National Technical Integration Office (NTIO), which is the
Coast Guard counterpart to the Tactical Exploitation of
National Capabilities programs in each of the military
services. The NTIO explores the use of national intelligence
systems in support of Coast Guard operations. Section 442 is
intended to enable the National Technical Integration Office to
monitor the development, procurement, and management of
tactical intelligence systems and equipment and to conduct
related research, development, and test and evaluation
activities within the context of the Coast Guard's existing R&D
authority.
Section 443. Retention and relocation bonuses for the Federal Bureau of
Investigation
Section 443 makes permanent the authority of the Director
of the FBI to pay bonuses to retain certain employees, such as
those who have unusually high or unique qualifications or who
are likely to leave the Federal service, and to pay relocation
bonuses to employees who are transferred to areas in which
there is a shortage of critical skills.
Section 444. Extending the authority of the Federal Bureau of
Investigation to waive mandatory retirement provisions
Existing law permits agencies to exempt law enforcement
officers from mandatory retirement (generally applicable at age
57 with 20 years of service) until age 60. Under 5 U.S.C.
8335(b)(2), pertaining to the Civil Service Retirement System,
and 5 U.S.C. 8425(b)(2), pertaining to the Federal Employee
Retirement System, the Director of the FBI may exempt FBI
officers from mandatory retirement until age 65, if such an
extension is in the public interest. Section 444 extends the
waiver authority, which expires at the end of 2009, until the
end of 2011.
Section 445. Report and assessments on transformation of the
intelligence capabilities of the Federal Bureau of
Investigation
Section 445 requires the Director of the FBI, in
consultation with the DNI, to submit to the congressional
intelligence committees, not later than 180 days after
enactment of this Act, a report describing the long-term vision
for the intelligence capabilities of the FBI's National
Security Branch, a strategic plan for the National Security
Branch, and the progress in advancing the capabilities of the
branch. Among other things, the report is to include a
description of the intelligence and national security
capabilities that will be fully functional within the 5-year
period beginning on the date the report is submitted and a
description of the metrics, timetables, and corrective actions.
The report will also describe the activities being carried out
to ensure the NSB is improving its performance. In addition,
Section 445 requires the DNI, in consultation with the Director
of the FBI, to conduct for five years an annual assessment of
the NSB's progress based on those performance metrics and
timetables.
TITLE V--REORGANIZATION OF THE DIPLOMATIC TELECOMMUNICATIONS SERVICE
PROGRAM OFFICE
Section 501. Reorganization of the Diplomatic Telecommunications
Service Program Office
Section 501 provides for the reorganization of the
Diplomatic Telecommunications Service (DTS) which is
compromised of the Diplomatic Telecommunications Service
Program Office (DTS-PO) and the DTS Network. The purpose of the
DTS-PO is to establish and maintain a DTS Network that is
capable of meeting the worldwide communications service needs
of United States Government departments and agencies operating
from diplomatic and consular facilities including their
national security needs for secure, reliable, and robust
communications. Section 501 replaces a reorganization plan
enacted in the Intelligence Authorization Act for Fiscal Year
2001, and is formally an amendment to that Act which will
appear in Title 22 of the U.S. Code.
Section 501 establishes a Governance Board which shall
direct and oversee the activities of the DTS-PO. The Director
of OMB shall designate from the departments and agencies that
use the DTS Network those departments and agencies whose heads
will appoint the Governance Board from among their personnel.
The OMB Director shall designate the Chair of the Board from
among its five voting members and also designate from among the
users of the network the department or agency which shall be
the DTS-PO Executive Agent.
The Governance Board shall determine the written
arrangements, which may be classified, for managing the DTS-PO.
The Board shall have the power to approve and monitor the DTS-
PO's plans, services, policies, and pricing methodology, and to
recommend to the DTS-PO Executive Agent the Board's approval,
disapproval, or modification of the DTS-PO's annual budget
requests. The Board will also approve or disapprove of the
Executive Agent's nomination of a Director of the DTS Program
Office.
Section 501 authorizes two-year appropriations for the DTS-
PO. It requires that the DTS-PO shall charge only for bandwidth
costs attributable to a department or agency and for specific
customer projects.
In requesting enactment of Section 501, the DNI advised the
Committee as follows about its purpose: ``The appropriations
authorized by this measure will promote modernization of the
[DTS] network and the expansion of its architecture. With the
authority to recover bandwidth costs, the DTS-PO can vastly
improve the overall business management and effectiveness of
DTS-PO operations. The measure will facilitate the
establishment of a financial management system that employs a
single system of records, that increases transparency and
traceability in customer billing, that promotes responsiveness
to customer requirements, that insures timely acquisition of
bandwidth and receipt of vendor payments, and that promotes
cost-conscious behavior among DTS-PO customers.''
TITLE VI--FOREIGN INTELLIGENCE AND INFORMATION COMMISSION ACT
Section 601. Short Title
Title VI of the bill establishes a Foreign Intelligence and
Information Commission (``the Commission'') to provide
recommendations to improve foreign intelligence and information
collection, analysis, and reporting through the strategic
integration of the Intelligence Community and other elements of
the United States Government. Section 601 provides that this
title may be cited as the ``Foreign Intelligence and
Information Commission Act.''
Section 602. Definitions
Section 602 provides definitions, including subsection
602(5) 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 603. Findings
Section 603 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; and 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 and reporting foreign intelligence and information,
including personnel from the Intelligence Community, the
Department of State, and other agencies and departments of the
Government of the United States, and that adequate resources
are committed to effect such collection and reporting.
Section 604. Establishment and functions of the Commission
Section 604 sets forth the functions of the Commission to
include evaluating any current processes or systems for the
strategic integration of the Intelligence Community, including
the Open Source Center, and other elements of the United States
Government, including the Department of State, with regard to
the collection, reporting and analysis of foreign intelligence
information; providing recommendations to improve or develop
such processes or systems to include the development of an
inter-agency strategy; and providing recommendations on how to
incorporate into the inter-agency strategy the means to
anticipate future threats, challenges, and crises, including by
identifying and supporting collection, reporting and analytical
capabilities which are global in scope and which are directed
at emerging, long-term, and strategic threats.
The functions of the Commission also include providing
recommendations related to the establishment of any new
Executive branch entity, or the expansion of the authorities of
any existing Executive branch entity, as needed to improve the
strategic integration of foreign intelligence and information
collection, reporting and analysis capabilities and oversee the
implementation of the inter-agency strategy; and providing
recommendations on any legislative changes necessary to
establish any new entity or to expand the authorities of any
existing entity.
In addition, the functions of the Commission include
providing recommendations on strategies for sustaining human
and budgetary resources to effect the global collection and
reporting missions identified in the inter-agency strategy,
including the prepositioning of collection and reporting
capabilities; and providing recommendations on processes for
developing and presenting to Congress budget requests for each
relevant element of the United States Government that reflect
the allocations identified in the inter-agency strategy and for
congressional oversight of the development and implementation
of the strategy.
Section 605. Members and staff of the Commission
Section 605 establishes that the Commission shall be
composed of 10 members, to include two members appointed by the
majority leader of the Senate, two members appointed by the
minority leader of the Senate, two members appointed by the
Speaker of the House of Representatives, two 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 information and
intelligence collection, reporting, and analysis; knowledge and
experience in issues related to the national security and
foreign policy of the United States gained by serving in the
Department of State, 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 605(b) provides for the staff of the Commission
and the selection of an Executive Director.
Section 606. Powers and duties of the Commission
Section 606 provides the powers and duties of the
Commission, including holding hearings, receiving evidence, and
issuing and enforcement of subpoenas.
Section 607. Report of the Commission
Section 607 provides that no later than one year after the
appointment of members, the Commission shall submit an interim
report to the congressional intelligence committees. No later
than 4 months thereafter, the Commission shall submit a final
report to the President, the Director of National Intelligence,
the Secretary of State, the congressional intelligence
committees, and the Committee on Foreign Relations of the
Senate and the Committee on Foreign Affairs of the House of
Representatives.
Section 608. Termination
Section 608 provides that the Commission shall terminate 60
days after the submission of the Commission's final report.
Section 609. Nonapplicability of Federal Advisory Committee Act
Section 609 provides that the Federal Advisory Committee
Act (5 U.S.C. App.) does not apply to the Commission.
Section 610. Funding
Section 610 authorizes that of the amounts available for
the National Intelligence Program for fiscal year 2009,
$4,000,000 shall be available for transfer to the Commission.
TITLE VII--TECHNICAL AMENDMENTS
Section 701. Technical amendments to the Foreign Intelligence
Surveillance Act of 1978
Section 701 makes technical amendments to the Foreign
Intelligence Surveillance Act of 1978 to correct typographical
and grammatical errors.
Section 702. Technical amendments to the Central Intelligence Agency
Act of 1949
Section 702 amends Section 5(a)(1) of the CIA Act of 1949
by striking or updating outdated references to the National
Security Act of 1947. The Intelligence Reform Act significantly
restructured and renumbered multiple sections of the National
Security Act of 1947, leaving references in Section 5(a)(1) of
the CIA Act to provisions that no longer exist or that are no
longer pertinent.
Section 703. Technical amendments to Title 10, United States Code
Section 703 amends Section 528(c) to update references to
the names of positions at the Central Intelligence Agency.
Section 704. Technical amendments to the National Security Act of 1947
Section 704 corrects and updates technical anomalies in the
National Security Act of 1947 arising in part from the
amendments made to that Act by the Intelligence Reform Act.
Among other provisions, Section 704 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 705. Technical amendments relating to the multiyear National
Intelligence Program
Section 705 updates references to the ``multiyear national
foreign intelligence program'' in the National Security Act of
1947 to incorporate and reflect organizational and nomenclature
changes made by the Intelligence Reform Act.
Section 706. Technical amendments to the Intelligence Reform and
Terrorism Prevention Act of 2004
Section 706 makes a number of technical and conforming
amendments to the Intelligence Reform Act.
Section 707. Technical amendments to the Executive Schedule
Section 707 makes technical amendments to the Executive
Schedule to correct outdated and incorrect references. This
section substitutes the ``Director of the Central Intelligence
Agency'' for the previous reference in Executive Schedule Level
II to the ``Director of Central Intelligence.'' See 5 U.S.C.
5313. Section 507 also strikes outdated references to Deputy
Directors of Central Intelligence from Executive Schedule Level
III. See 5 U.S.C. 5314. The provision also corrects the
erroneous reference to the ``General Counsel to the National
Intelligence Director'' in Executive Schedule Level IV. See 5
U.S.C. 5315.
Section 708. Technical amendments to section 105 of the Intelligence
Authorization Act for Fiscal Year 2004
Section 708 changes the reference to the Director of
Central Intelligence to the DNI in Section 105 of the
Intelligence Authorization Act for Fiscal Year 2004 (Public Law
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, Public Law 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.
Section 709. Technical amendments to section 602 of the Intelligence
Authorization Act for Fiscal Year 1995
Section 709 changes references to the Director of Central
Intelligence in Section 602 of the Intelligence Authorization
Act for Fiscal Year 1995 to the Director of National
Intelligence or to the Director of the Central Intelligence
Agency as appropriate.
Section 710. Technical amendments to section 403 of the Intelligence
Authorization Act, Fiscal Year 1992
Section 710 makes technical amendments to Section 403 of
the Intelligence Authorization Act, Fiscal Year 1992, to
reflect the creation of the position of the Director of
National Intelligence and the appropriate definition of the
Intelligence Community.
COMMITTEE COMMENTS
Leadership of the Intelligence Community
The National Security Act of 1947 is clear. As amended by
the Intelligence Reform Act, the Director of National
Intelligence is the ``head of the intelligence community.'' 50
U.S.C. Sec. 403(b)(1). With respect to the CIA, the DNI's
authority is direct and immediate. Under the heading of
``Supervision,'' the Act provides that ``[t]he Director of the
Central Intelligence Agency shall report to the Director of
National Intelligence regarding the activities of the Central
Intelligence Agency.'' Id., Sec. 403-4(a).
The National Security Act of 1947 specifically addresses
coordination with foreign governments. Under the President's
direction, the DNI shall ``oversee'' the coordination of the
relationship between Intelligence Community elements and
foreign government or international organization intelligence
or security services. Id., Sec. 403-1(k). The CIA has, of
course, important responsibilities concerning that coordination
but, in keeping with the Act, those responsibilities are to be
exercised ``[u]nder the direction of the Director of National
Intelligence.'' Id., Sec. 403-4(f).
Effective May 19, 2009, DNI Dennis Blair, completing a
process that began under DNI Michael McConnell, issued
Intelligence Community Directive 402 (ICD-402) on the
designation by the DNI of DNI representatives to U.S. foreign
partners and international organizations. In recognition of the
historical overseas role of the CIA, ICD-402 provides that in
``virtually all cases globally'' the CIA Chief of Station shall
serve as the DNI representative to U.S. diplomatic missions.
Nevertheless, in ``rare circumstances'' the DNI, in
consultation with Chiefs of Mission, the Director of the CIA,
and other affected departments or agencies, may designate a DNI
representative other than a CIA Chief of Station.
ICD-402 is faithful to the National Security Act. The DNI
is not only the head of the Intelligence Community in
Washington, D.C. The DNI is the Community's head wherever it
operates in the world.
The directive recognizes the value of turning to the CIA
Chief of Station to be the DNI's representative in foreign
countries, but also recognizes that some locations may give
rise to circumstances where that responsibility is best met by
an official with expertise derived from another Intelligence
Community element, which in fact is already current practice
and is not disputed by anyone.
In any event, the DNI, exercising his authority under the
law, has made the decision that the directive is the right
choice for the Intelligence Community. The Committee supports
the DNI in that choice and looks forward to the CIA's prompt
adherence to his decision.
Cyber issues
Cybersecurity is a serious national security and economic
security challenge of great complexity, deserving of increased
attention from the Congress. Because the Comprehensive National
Cybersecurity Initiative (CNCI) in 2008 assigned the DNI and
Intelligence Community components key national roles in
cybersecurity, the Committee has invested significant time
assessing the cyber threat to our country and potential
government responses through scores of Member meetings and
staff briefings with government, private sector, academic, and
nonprofit thought-leaders, six full-Committee closed cyber
hearings in the last two years, four six-month studies by the
Committee's Technical Advisory Group, and regular outreach to
other congressional committees. The reporting requirements in
Section 340 are, in part, to encourage continued dialogue with
the Executive branch on these issues.
Recently, the Committee closely followed and offered
comments on the Administration's 60-day Cyberspace Policy
Review directed by the President. The Committee appreciates the
White House's effort to be transparent and open with Congress
and has high expectations for continued healthy cooperation.
The Committee looks forward to building on the current
portfolio of CNCI projects, with course-corrections where
necessary, and to developing longer-term strategies for
national cybersecurity.
Though the Committee continues to deliberate in classified
sessions, a few cyber-related observations and concerns can be
mentioned here. First, the Committee is troubled by the lack of
situational awareness about the opportunities, activities, and
identities of cyber thieves or potential attackers on U.S.
information networks. This is a serious weakness and a source
of frustration for those responsible for oversight and
strategic decision-making. Unfortunately, it will not be easy
to remedy this, as incentives to report cyber intrusions and
vulnerabilities are generally negative in the U.S. government
and private sector. The Committee believes this must change so
that cybersecurity leaders can make well-informed decisions and
respond to problems quickly.
Next, it is clear that cybersecurity activities must be
conducted with an expectation of particularly strong
congressional oversight that will require solid Executive
branch planning before funding for multi-billion dollar
programs are authorized and appropriated. In addition, there
must be a rigorous analysis of the government's use of legal
authorities for national cybersecurity missions that preserve
the reasonable privacy expectations of U.S. persons. The
government's role must be well-defined as activities involving
the Internet evolve.
The Committee seeks an effective governance model for the
management of cybersecurity expenditures and operations, with a
clear relationship among homeland security, intelligence,
military, foreign policy, law enforcement, and other components
involved in cybersecurity. It must be clear which government
leaders are to be held accountable for new cybersecurity
activities. Further, the Committee expects the President to
provide a clear vision, strategic direction, and effective
integration of the wide range of cybersecurity activities.
The federal government's communication strategy concerning
cybersecurity must be improved as well. The prior reluctance to
invite Congress into the cybersecurity debate in a timely
manner was to the detriment of what could have been a more
cooperative and productive interaction between the branches.
Also, the Committee believes there should be a new plan on the
best way to communicate the national cybersecurity policy to
the public. Though some elements must be classified, it is
important that the U.S. people understand the government's
basic role in helping to secure information networks. The
general rules and expectations for government involvement, and
how these may affect privacy, must be clearly explained.
In addition, the government must consider international
relations and how our country's intentions are transmitted
overseas. Indeed, the Committee supports stronger international
outreach with traditional allies and other key nations to
develop consensus on what cyber activities will be promoted,
tolerated, and censured. An international framework on cyber
warfare, much like international conventions on traditional
warfare, is needed to govern this rapidly growing field.
The Committee believes there should be a significant
emphasis in the government's cyber investment portfolio on
long-term issues such as research and development (R&D),
recruiting experts into government, and education and training.
In particular, recent studies sponsored by the Committee have
concluded that the Intelligence Community must dramatically
increase funding for R&D in order to be effective in the
future. The cyber technology world is moving quickly, with
cutting-edge technology expertise spread across the globe, and
the United States cannot presume a clear-cut technology
advantage as it has in other areas of national security. The
Committee recommends a balanced portfolio approach that
includes a nationally coordinated program of long-term, high-
risk research aimed at revolutionary breakthroughs, sustained
even when faced with near-term budget pressures. The Committee
strongly supports a rebalancing of the CNCI budget to address
these concerns.
Finally, as a step beyond the CNCI's focus on securing
federal government information networks, the Committee is
highly concerned about protecting the U.S. critical
infrastructure. For example, the country's electric power grid,
communications systems, and financial infrastructure are all
critical to our way of life yet unacceptably vulnerable to
cyber attack. The government and the private sector must work
together to share more effectively cyber threat and
vulnerability information, and the Administration and the
Congress must work together to determine the best mix of
mandates, incentives, and other tools to improve critical
infrastructure security. The Committee also supports recent
recommendations from its Technical Advisory Group stressing the
importance of a survivable government communications network to
sustain critical national security functions under and
following major cyber attack.
In addition, the Committee requests the following near-term
actions for the Administration. As requested in a March 23,
2009, letter from the Chairman and Vice Chairman of the
Committee to the DNI, the Committee recommends that the
Administration propose legislation giving the Director of
National Intelligence primary authority to manage all aspects
of cybersecurity pertaining to any Intelligence Community
communication and information system. This should include the
ability to mandate red-team penetration testing, using any
Intelligence Community red team, on any Intelligence Community
communication or information system at any time, with test
results reportable to the Director of National Intelligence.
Also, the Committee recommends that the DNI, in
consultation with the OMB, implement a system (``dashboard'')
to provide dynamic, comprehensive, real-time cybersecurity
status and vulnerability information of all Intelligence
Community communication and information systems to the DNI.
To ensure that cybersecurity best practices spread through
the entire Intelligence Community enterprise, the Committee
requests that the DNI: (1) direct an Intelligence Community
cybersecurity awareness campaign that covers all Intelligence
Community employees and contractors; (2) direct that
cybersecurity become a significant part of the performance and
bonus evaluations for all Senior Intelligence Service (SIS)
members; and (3) create a Secure Products and Services
Acquisitions Board, responsible for ensuring all Intelligence
Community purchases meet standards for cybersecurity as
established by the Board. For this last recommendation, the
Committee notes that its intent is not to create another time-
consuming approval layer and slow acquisitions; the Board
should adjudicate in a timely manner, or not at all.
Beyond Intelligence Community issues, the Committee is
interested in accelerating the growth of the national cyber
investigative and law enforcement capabilities, toward the goal
of improved national ability to attribute and prosecute cyber
adversaries. Therefore the Committee recommends that the DNI
increase support for the National Cyber Investigative Joint
Task Force and ensure appropriately cleared, full-time staff
are detailed to the Task Force with complete access to any
intelligence information that could support cyber
investigations on foreign adversaries.
Also, the Committee recommends that the DNI and the
Secretary of Homeland Security perform a joint, comprehensive,
up-to-date assessment of risk due to cyber threats to and cyber
vulnerabilities in the U.S. critical infrastructure and submit
a report on this assessment to Congress by January 1, 2010. The
assessment should consider all types of cyber threats, of
domestic or foreign origin, particularly those to U.S. electric
power command and control systems, and all types of cyber
vulnerabilities, and combine them to create the risk
assessment.
Finally, the Committee supports recent recommendations from
its Technical Advisory Group that the Administration should
consider changes to U.S. immigration policy that would offer
expedited citizenship to certain foreign nationals studying in
the United States who graduate with degrees in science,
technology, engineering, and mathematics, with particular focus
on computer science.
Foreign language capability of the Intelligence Community
The Committee is concerned about the abysmal state of the
Intelligence Community's foreign language programs. The
collection of intelligence depends heavily on language, whether
information is gathered in the field from a human source or
from a technical collection system. Even traditionally
nonlinguistic operations such as imagery rely on foreign
language skills to focus and direct collection efforts. But
almost eight years after the terrorist attacks of September
11th and the shift in focus to a part of the world with
different languages than previous targets, the cadre of
intelligence professionals capable of speaking, reading, or
understanding critical regional languages such as Pashto, Dari
or Urdu remains essentially nonexistent.
Section 1041 of the Intelligence Reform Act required the
DNI to identify the linguistic requirements of the Intelligence
Community, and to develop a comprehensive plan to meet those
requirements. Five years later, the ODNI has still not
completed an IC-wide comprehensive foreign language plan that
designates specific linguist or language requirements, lays out
goals or timelines, or designates specific actions required to
meet them.
Furthermore, individual agency and military service
programs aimed at creating strategies to improve foreign
language programs are inconsistent across the Intelligence
Community. NSA has near-real-time visibility of its language-
capable employees and hires and trains according to actual
needs, but most other Intelligence Community agencies have no
similar capability. The new Director of the CIA recently
announced a major overhaul of the CIA's foreign language
hiring, training, maintenance, and use policies which should
eventually result in a more language capable workforce, but
other agencies have not been similarly aggressive. DIA
continues to suffer from chronic shortages of language-capable
employees, but has not developed a strategy for improvement. To
explain their failure to redress critical gaps in national
security foreign language capacity, agencies point to their
lack of control over clearance processes, shallow hiring pools,
the inability to allocate time to training, insufficient
resources, and, in some cases, a dearth of qualified
instructors. Yet, the United States is one of the most polyglot
of developed countries--more than one in five Americans speak a
language other than English in the home and more than a million
citizens are of Middle East or South Asian descent.
The Committee is concerned that persistent critical
shortages in some languages contribute to the loss of
intelligence information and affect the ability of the
Intelligence Community to process and exploit what it does
collect. This seriously hampers the nation's ability to engage
constructively and appropriately overseas.
The Committee expects to receive by the end of this year a
comprehensive strategy for improving foreign language
capabilities across the Intelligence Community, including but
not limited to meeting the requirements for translators,
interpreters, collectors, analysts, liaison officers and
attaches. The Committee has provided additional resources to
address this perpetual shortcoming in Section 306 and as
discussed in the classified annex.
Intelligence Community core contract personnel
The Committee remains concerned over the number of contract
personnel engaged in core activities in the Intelligence
Community. For the last three years, the IC CHCO has gathered
data and presented analysis on the number and cost of these
core contract personnel. The most recent Intelligence Community
Core Contract Personnel Review for 2008 found that core
contract personnel made up 29 percent of the total Intelligence
Community personnel yet represented 49 percent of the total
personnel budget. Overall, the Intelligence Community reduced
its use of contract personnel for these core positions by 3
percent last year. The NRO and NGA, however, had considerable
growth in their contract personnel ranks in 2008.
While recognizing that core contract personnel may be
necessary for short-term assignments or to allow intelligence
agencies to acquire unique expertise, the Intelligence
Community agencies themselves have determined that many of the
functions currently performed by contract personnel can be
successfully performed by government employees at a
considerable savings to the government. The CIA in particular
has taken a leadership role in identifying these positions,
converting contract personnel into agency employees, and
redirecting the resulting savings to more productive uses.
As set forth in Section 103 of the bill, the Committee
recommends that the Intelligence Community agencies be
authorized to convert their contract personnel positions into
civilian employees. The Committee believes the IC CHCO has been
conducting important oversight in bringing uniform personnel
procedures to the Intelligence Community and requiring the
intelligence agencies to analyze their usage of contract
personnel. These are important steps that must be taken before
determining the correct size and composition of the
Intelligence Community workforce today and in the future.
Nevertheless, the Committee believes the Intelligence
Community should further reduce its dependence on contract
personnel. Therefore, the Committee directs that the
Intelligence Community reduce its core contract personnel by at
least 5 percent below the level requested for fiscal year 2010.
Information Integration and the Intelligence Community Chief
Information Officer
The Committee was impressed with the vision and
accomplishments of the Information Integration Program (I2P).
The I2P was initiated in the summer of 2008 as an informal
means of determining areas within the Intelligence Community's
information technology systems that could be altered to better
enable information sharing and access, and then providing the
guidance and resources to enable these changes to take place.
Unlike similar efforts in the private sector which are driven
by cost savings, I2P had a primary goal of demonstrating how
improved connectivity between and among intelligence agencies
could help Intelligence Community components perform their
mission better. While cost savings may be an ancillary benefit,
the mission focus of I2P proved to be an attractive motivation
for Intelligence Community personnel.
Almost eight years after the attacks of September 11th, and
five years after its creation by passage of the Intelligence
Reform Act, the ODNI has found a process to build links among
communication systems and to develop common information
technologies and standards--the infrastructure on which
intelligence information can be shared and accessed. As
improved information sharing had been a fundamental rationale
for creating the DNI, these improvements are long overdue.
Intelligence Community Directive 501, Discovery and
Dissemination or Retrieval of Information within the
Intelligence Community, issued by the DNI on January 21, 2009,
sets forth new policies that establish the ``responsibility to
provide'' information to authorized personnel and a framework
to implement this policy. Taken together, the Committee
believes these actions will create a fundamental change in how
intelligence collection and analysis may be distributed, if
appropriate, among and between intelligence agencies, the U.S.
government, state and local authorities, and the general
public.
Despite the substantial promise of I2P's reforms, the
Committee had been concerned that the effort might disappear
once the individuals leading I2P moved on, given its ad hoc
nature within the ODNI. Therefore, the Committee supports the
decision by the DNI to continue the I2P reforms through the IC
CIO and believes the IC CIO's primary mission should be to
continue and build upon the I2P effort. Additionally, the
Committee has recommended a fence on enterprise management
information technology funds requested for each agency pending
certification by the IC CIO that an agency is addressing
specific issues related to the I2P effort. Further, the
Committee expects the IC CIO to continue to provide quarterly
update briefings on the initiatives begun under I2P to the
congressional intelligence committees as this effort
progresses.
Need for increased and stable research and development funding
The Committee remains concerned about the chronic
underfunding of research and development in the Intelligence
Community. The Intelligence Community has traditionally
developed its own advanced technologies rather than looking
outside to meet intelligence operational needs. The funds
invested in the past for research and development of new
technology have made the Intelligence Community the world
leader in most technical collection disciplines. Without these
investments, the U.S. would be facing much greater risks and
threats to its national security. The Committee believes the
Intelligence Community must retain its technological edge.
Last year, the Administration's National Intelligence
Program budget request devoted only 3 percent of the total
request to R&D. Congress added significant funding for R&D to
the National Intelligence Program request in the fiscal year
2009 appropriations. The Administration, however, did not
sustain these increases and the fiscal year 2010 National
Intelligence Program request again only has 3 percent of the
total request directed towards research and development.
The Committee does not support the established budgetary
practice of raiding R&D accounts to address short-term budget
problems within the Intelligence Community. While not unique to
the Intelligence Community, the chronic under-funding of R&D
programs will have long-term effects on the ability of the
United States to know what adversaries are planning and to
protect its citizens from these threats. In particular, the
Committee is seriously concerned with the NRO's decision to
reduce its R&D funding from 8 percent of the budget in fiscal
year 2006 to just 6 percent of its budget in fiscal year 2010.
For an organization whose mission is focused on advanced
technical collection of intelligence, these cuts are puzzling
and short-sighted.
Despite the inadequate funding request for R&D, the
Intelligence Community has made some progress in promoting
advanced research and development through the establishment of
the Intelligence Advanced Research Projects Agency (IARPA).
Similar to the Department of Defense Advanced Research Projects
Agency (DARPA), which developed the Internet and Predator UAVs,
the IARPA has the charge to identify, nurture, and promote
long-term R&D projects with the potential to alter
fundamentally intelligence collection and analysis. The
Administration, however, did not sustain the substantial
increases Congress approved for IARPA in fiscal year 2009 in
this year's budget request.
The Committee recommends increases in the National
Intelligence Program budget for R&D spending to 4 percent of
the total Intelligence Community budget and believes the
Intelligence Community should sustain and eventually increase
this funding to 5 percent of the total National Intelligence
Program budget in next year's budget request.
Intelligence Community financial management
The Intelligence Community must be able to produce
financial reports that pass independent audit if the taxpayers
and Congress are to have confidence that the National
Intelligence Program budget, which was $47.5 billion for fiscal
year 2008, is being spent effectively. The Committee formally
began advocating for increased Intelligence Community
compliance with federal financial accounting standards in
September 2001. The report language accompanying the
Committee's Fiscal Year 2002 Intelligence Authorization bill
noted that as early as January 1997, the President had called
for selected Intelligence Community agencies to begin producing
classified financial statements. The report language called for
the financial statements of the NRO, NSA, CIA, DIA, and what is
now the NGA to be audited by a statutory Inspector General or
independent public accounting firm by March 1, 2005. The intent
was that by that time, the statements would be auditable.
Progress over the last decade toward the goal of auditable
financial statements has been woefully insufficient. Since
September 2001 each agency has overstated its progress in
establishing the processes, procedures, and internal controls
that would allow for the production of auditable statements.
These promises have been accompanied by the hiring of multiple
contract personnel who have created numerous studies and plans
that have often been duplicative and merely pointed out the
obvious. There has also been a lack of senior management
attention to the need for improved financial accountability.
One symptom of this inattention is the existence of over a
dozen long-standing, correctable, material weaknesses, which
pose serious obstacles to financial auditability. To ensure
clear accountability and to focus senior management attention
on their correction, Section 359 requires the heads of the CIA,
DIA, NGA, NRO, and NSA to designate each senior management
official who is responsible for correcting these weaknesses,
and to notify the DNI and the congressional intelligence
committees of these designations.
The NRO received a favorable audit opinion auditable
financial statement in fiscal year 2003, but since then has
slipped to the point of not doing an audit of its fiscal year
2007 statement pending further improvements to internal
processes. The NSA put into operation a new commercial off-the-
shelf financial management system, which also supports the DIA,
but, as the Chairman and Vice Chairman pointed out in a March
9, 2009, letter to the DNI, the NSA grossly mismanaged the
implementation of the system. The NGA was scheduled to move to
this NSA-DIA accounting system, but that move is on hold
pending resolution of NSA's implementation problems and IC-wide
business system architecture deliberations coordinated by the
DNI's new Business Transformation Office (BTO). The bottom line
is that more than ten years after the President called for
action, and more than four years after the Committee
anticipated receiving auditable statements, the five agencies
are still unable either to produce auditable financial
statements or receive favorable audit opinions on those that
are auditable. The current projection for doing so is at least
four years away.
The first, and so far only, serious IC-wide plan for
producing auditable statements is contained in an April 2007
DNI report titled Financial Statement Auditability Plan. The
report outlined the current state of the Intelligence
Community's financial management systems, explained the
challenges to achieving unqualified audit opinions, and
specified key milestones for each agency on the path to clean
audit opinions in fiscal year 2012. The report failed, however,
to explain how independent audit assessments of important
milestones would be conducted, and it contained no plan for
when individual agency systems could be merged into an IC-wide
business enterprise architecture (BEA).
Accordingly, the April 2007 plan has now been superseded by
the imperative to construct a BEA, which makes the 2012
auditability timeline difficult or impossible to achieve for
most agencies. Nonetheless, the Committee strongly supports
this BEA work, which, if successful, will provide a stronger
foundation for sustainable, financial auditability. Indeed, the
Committee has repeatedly called for a BEA over the last four
years. Section 322 of this bill is designed to empower the
DNI's fledgling BTO to produce this business systems
architecture. The Committee strongly believes that a separate
BTO, staffed with officers with relevant experience, is
indispensible to progress towards the BEA--as a similar office
has shown to be in the Department of Defense. Accordingly, the
Committee would view as unwise and counterproductive any
dilution of the BTO. The Committee awaits the next major
milestone in the BTO's efforts to construct an effective BEA,
the December 31, 2009, delivery of the rigorous BEA framework
mandated by the Committee.
Nonetheless, the BTO's work must not delay sorely-needed
improvements to internal controls, which are critical to
preventing millions of dollars of potential fraud, waste, and
abuse, as well as providing reliable business information for
sound decision-making. Many of these process controls do not
need to await the result of BTO's architectural deliberations.
We therefore urge the DNI and Intelligence Community agency
heads to take strong and decisive action to see that
appropriate reforms and oversight controls are in place as soon
as possible.
Finally, the Committee believes that both the Congress and
the DNI would benefit from the creation of a consolidated
National Intelligence Program financial statement. Such a
statement would provide valuable macro-level data and, once
established, offer insight into financial trends within the
Intelligence Community. Therefore, the Committee requests that
the DNI begin preparing a consolidated financial statement for
the National Intelligence Program beginning with fiscal year
2011. In accordance with the DNI's Financial Statement
Auditability Plan, this statement should be based on the fully
auditable data provided by each of the Intelligence Community
agencies. As such, a separate audit will not be required for
the consolidated statement.
Resource Management and the Chief Financial Officer for the
Intelligence Community
It is widely recognized that the Intelligence Community's
process for generating requirements for major acquisitions is
broken. For instance, as the Committee has noted previously, a
significant percentage of major acquisition programs have not
been linked to providing intelligence requirements that have
been formally validated. Moreover, the process of identifying
intelligence requirements is not sufficiently linked to
budgetary constraints, leading to budget requests that include
more programs than can sustainably be funded. To remedy this
situation, budgetary constraints need to be explicitly
considered throughout the entire resource process. In addition,
the Chief Financial Officer in the ODNI, whose responsibility
it is to prepare a budget for the DNI, needs to be centrally
involved throughout the entire decision-making process--not
just the budgeting at the end of the process.
By the ODNI's own assessment, the current resource
management process is ``fragmented, unsynchronized, complex,
and opaque.'' Past efforts to address this problem have been
ineffective and set aside.
The Committee applauds the current DNI's efforts to perform
more rigorous, quantitative, long-term analyses of resource
issues. To lead this effort, he has established a new Associate
Director of National Intelligence for Systems and Resource
Analyses. The Committee is concerned, however, that creating
yet another senior resource position further balkanizes an
already fragmented resource process.
Unless one senior officer has exclusive responsibility for
end-to-end resource management, resource decisions will
continue to be slow, needlessly complex, subject to contentious
revisits, and certainly not integrated. One, and only one,
senior officer reporting to the DNI must be in charge and
accountable. Therefore, Section 408 of the bill creates the
position of the IC CFO, investing that position with the
duties, responsibilities, and authorities of the CFO Act of
1990, as appropriate. The section makes clear that the IC CFO
will serve as the principal advisor to the DNI on Intelligence
Community budgetary resources, and that this officer will
establish and oversee a comprehensive and integrated strategic
process for managing Intelligence Community resources. Other
senior officers may be primarily responsible for certain
aspects of this overall process, such as strategic planning,
long-range investment analysis, independent cost estimation, or
acquisition milestone decision authority, but Section 407 makes
the IC CFO responsible for the coordination of all resource
processes. The Committee intends and expects that, as the
principal advisor to the DNI on resource allocation, the IC CFO
will consider and balance the equities of all Intelligence
Community parties in his or her recommendations to the DNI, and
that the DNI in turn, will receive recommendations directly
from the IC CFO.
Independent cost estimation
The Committee believes that the greater number of
intelligence programs that are subjected to the discipline of
an Independent Cost Estimate (ICE) or other independent cost
assessment, the more financially realistic and sustainable the
National Intelligence Program budget becomes. Therefore, the
bill reduces the threshold cost of a program from $500 million
to about $170 million before an ICE is required. This threshold
is used throughout the U.S. government to define a major system
acquisition, and its adoption in the bill responds to the
ODNI's request to make this definition uniform in statute. The
Committee anticipates that the ODNI's Intelligence Community
Cost Analysis and Improvement Group (IC CAIG) will delegate
many of the resulting additional ICEs for smaller programs to
those executing agencies with independent cost estimating
capabilities. The Committee also strongly encourages the IC
CAIG to continue to expand its purview to large programs that
are not usually considered ``systems acquisition,'' such as
Intelligence Community data centers, the pending cyber
initiative, and large personnel increases that function
together to fulfill a mission need.
Also, while the Committee is impressed with the
professionalism and productivity of the IC CAIG, it believes it
is incumbent on the IC CAIG to establish and publish the track
record of its ICEs in predicting actual program costs.
Accordingly, the Committee requests that future budget requests
or annual Program Management Plan Reports include a comparison
of all IC CAIG ICEs to the actual costs of completed and
ongoing programs. The comparison should be on a basis that is
consistent from year to year and from program to program. Such
a comparison may account for changes in program scope, but it
should also compare estimates to actual costs without scope
changes. The Committee recommends that the IC CFO consult with
the Committee on its proposed methodology for establishing such
a track record prior to its publication in the congressional
budget justification books.
Performance based budgeting: major progress made in FY 2010 Budget
This year's FY 2010 National Intelligence Program budget
request builds on last year's progress in performance-based
budgeting. It represents the first full performance budget,
providing the Committee valuable new information for oversight.
The Committee is especially pleased that the improvements it
urged last year in the performance budget for counterterrorism
have been made. The Committee also applauds the ODNI's adoption
of facility condition index metrics, CIA's advancement of
measures for HUMINT and covert action performance, and the
NRO's use of functional availability as a performance
methodology. Even so, the DNI and the Intelligence Community
are years behind much of the rest of the government. The
quality of the measures, targets, performance assessments, and
linkage to funding is highly uneven. In addition, too often the
performance information appears to be an administrative after-
thought to the budget rather than an integral part of its
development. As the government-wide fiscal picture tightens, it
will be increasingly incumbent on the Intelligence Community to
justify its resource requests on the basis of improved
performance.
Principal Deputy Director of National Intelligence
The Principal Deputy Director of National Intelligence
position was established as a Presidentially-appointed, Senate-
confirmed position by the Intelligence Reform Act, but has been
filled by a confirmed individual for barely half of the
intervening four years. The Office was vacant for over a year
from 2006 to 2007, and has been vacant again since January
2009. As of the date of filing this report, no nomination for
this position is pending.
The Principal Deputy position is among the most important
in the Intelligence Community. The Principal Deputy is charged
with assisting the DNI in the performance of the DNI's duties,
and of exercising the DNI's authorities and carrying out the
DNI's responsibilities when the DNI is absent or when the DNI
position is vacant. While the Committee does not wish to fault
the performance of either the incumbent DNI or the incumbent
Acting Principal Deputy, it notes that the Principal Deputy
position was created because Congress believed that leading the
Intelligence Community was a job which required that the DNI be
assisted by a confirmed, full-time appointee, rather than an
acting appointee who has other full-time job responsibilities.
Moreover, the intention of the Congress, and the law that it
enacted, is that a confirmed Principal Deputy would stand ready
to act as the DNI in the event that a vacancy occurred so there
would be no gap in the leadership of the Intelligence
Community.
The Intelligence Reform Act states that when the Principal
Deputy position is vacant the DNI shall recommend an individual
for appointment. The Committee hopes to receive a nomination
for this position from the President in the very near future.
National Counterterrorism Center
The Committee receives regular briefings on terrorism
threats from intelligence analysts at the NCTC and commends the
Center for its continued success in improving the quality of
their briefings and intelligence products. The Committee looks
forward to additional advances in quality as the NCTC matures.
The Committee is also encouraged by recent improvements in the
NCTC's Department of Strategic Operational Planning, a function
the Committee will continue to focus on throughout 2009 and
2010.
The Committee understands that NCTC has developed an
effective mechanism for sharing intelligence information among
personnel serving at the Center, but that there continues to be
concern among counterterrorism analysts serving at the
individual intelligence agencies about the degree to which they
have access to relevant terrorism-related intelligence
information from other agencies. The Committee will continue to
look into this issue as the bill is considered by the Congress.
Defense Intelligence Agency--Counterterrorism Analysis
The DIA details a significant number of its
counterterrorism analysts on rotations to support the missions
of other commands, agencies, organizations, deployed forces,
and the NCTC. The Committee is concerned that many of these
analysts--particularly those assigned to NCTC--do not return to
the Joint Intelligence Task Force-Combating Terrorism or
another DIA office upon completion of this rotational
assignment, and instead chose to leave DIA.
Therefore, the Committee requests that the Director of the
DIA undertake a study to examine factors that may lead analysts
who undertake rotational assignments at other agencies or
organizations to leave DIA employment, as well as to propose
mitigation strategies. The study should be briefed to the
Committee no later than December 31, 2009.
Federal Bureau of Investigation intelligence transformation
The Committee has closely examined efforts by the FBI to
transform its National Security Branch into a premier
intelligence and national security organization. While the FBI
has made progress in its efforts to fulfill its national
security and intelligence mission, the Committee believes the
FBI must accelerate its intelligence reform efforts and improve
its performance.
In addition, the Committee expects the FBI to increase its
transparency and cooperation with Committee oversight. In
several instances the FBI has not kept the Committee ``fully
and currently'' informed of its intelligence activities, nor
has it responded to Congressional Questions for the Record in a
reasonable time frame. While responsibility for this deficiency
lies at least partially with the Department of Justice, the
Committee adamantly believes the FBI itself must take
corrective steps. The Committee requests that a report be
provided to the intelligence committees detailing how the
National Security Branch of the FBI will improve its
cooperation with oversight and align its briefing policies on
intelligence matters with the requirements of the National
Security Act. The report should be submitted by November 1,
2009. The Committee has fenced a portion of funds, as discussed
in the classified annex, until this matter is adequately
addressed.
Furthermore, as set forth in Section 445 of the bill, the
Committee recommends that the Director of the FBI, in
consultation with the DNI, be required to submit a report
describing the long-term vision for the intelligence
capabilities of the National Security Branch, a strategic plan
for the National Security Branch, and details on the progress
made to date in advancing the intelligence capabilities of the
branch. Section 445 also directs that the DNI, in consultation
with the Director of the FBI, submit an annual assessment that
tracks the progress of the National Security Branch in
strengthening its intelligence capabilities. This report is to
be provided to the congressional intelligence committees
annually for a period of five years.
FBI National Security workforce management and the advancement of an
FBI analytic culture
Intelligence Analysts and Professional Staff: The Committee
remains concerned that the FBI continues to lack a robust
Intelligence Analyst career path. Furthermore, the Committee
believes there are too few intelligence analysts in senior
positions of responsibility and that the FBI has neglected
opportunities to utilize intelligence analysts and other
professional staff to fill inherently non-law enforcement,
intelligence-focused positions. The FBI was granted authority
in the Consolidated Appropriations Act of 2005 to utilize
critical pay authority to obtain twenty-four Senior
Intelligence Officer (SIO) positions, which were portrayed as
``critical to the FBI's intelligence mission.'' In testimony
provided to this Committee on January 25, 2007, the FBI
described these SIOs as ``senior analysts who will sustain the
focus on issues about which policy makers and planners need
information now.'' As of June 2009, the FBI has hired only six
of the twenty-four SIOs. The Committee believes this is
unacceptable and that the FBI must do more to advance its non-
agent intelligence cadre.
Special Agents: The Committee is concerned about the FBI's
continued reliance on Special Agents in the National Security
Branch to fill all types of positions and urges the FBI to be
more strategic in its deployment and use of special agents.
Substantial resources are devoted to providing Special Agents
with unique skill sets and their appointments should be made in
a manner that is effective and efficient. The Committee
believes the use of Special Agents in organizational support
functions unrelated to intelligence or law enforcement should
be given careful consideration based upon the nature of the
particular support function. This is not only cost-effective,
but allows for better continuity and strategic positioning of
the FBI national security workforce.
Regionalization of the FBI Intelligence Program
While the FBI has made strides in reforming Field
Intelligence Groups, additional reforms are required.
Specifically, the Committee believes the FBI should give fuller
consideration to the creation of regional intelligence groups,
placed organizationally above Field Intelligence Groups, to
create an intelligence and national security reporting chain
that would be more manageable and accountable.
The state of counterintelligence in the Intelligence Community
The Committee is concerned about the management,
leadership, and focus of the counterintelligence discipline
within the Intelligence Community. A number of espionage cases
since 2001 have underscored the threat posed by foreign
intelligence services to the United States of America. Recent
press coverage has highlighted the enduring threat posed by the
Cuban intelligence services. The threat from Russia, China, and
other nations is no less serious.
An improved approach to counterintelligence will not deter
any and all forms of espionage from occurring. However, a
heightened counterintelligence posture in the Intelligence
Community will better detect and disrupt the sustained threat
posed to the US and its interests by foreign intelligence
services.
To effectuate meaningful change in counterintelligence,
leadership from the DNI is required. Unfortunately, the NCIX is
hampered in its ability to execute this leadership role by the
authorities assigned to the office and the limited, if any,
visibility into counterintelligence operations.
The Committee is supportive of the preliminary steps the
DNI has taken by convening a senior panel to review the state
of counterintelligence. The DNI should use this opportunity to
augment the vital fundamentals of a strong, cohesive
counterintelligence posture for the Intelligence Community.
This includes enhancing existing counterintelligence training,
producing more timely counterintelligence analysis, improving
cooperation on counterintelligence operations and analysis
between agencies, and more effectively linking
counterintelligence and cyber threats.
The Committee looks forward to working with the DNI to
improve the state of counterintelligence in the Intelligence
Community.
Department of Homeland Security--Personnel
Although the Committee commends the Office of Intelligence
and Analysis (OIA) of the Department of Homeland Security for
recognizing the importance of converting contractor positions
to government civilian personnel in fiscal year 2010, the
Department's plans to continue a gradual conversion of contract
personnel positions to government civilian personnel through
2015, when the workforce mix will be about 50/50, is
unacceptable. The Committee has consistently underscored its
concerns regarding the long-term use of private contract
personnel and the associated costs compared to government
civilian employees. Currently, contract personnel make up 63
percent of the workforce of the OIA. The OIA must improve its
ratio of contract personnel to government civilian personnel to
levels at least comparable to the rest of the Intelligence
Community. According to the annual inventory of core contract
personnel for fiscal year 2008, issued by the ODNI, contract
personnel constitute 29 percent of the Intelligence Community's
total personnel. As stated previously, the Committee believes
that this figure is substantially above what it should be.
Moreover, the Department of Homeland Security OIA workforce
request reflects a disproportionately high percentage increase
in total personnel over the past few years. The Committee
requests the ODNI work with the next Under Secretary for
Intelligence and Analysis to complete a comprehensive study to
determine the appropriate number of personnel, define
inherently government functions, identify where contract
personnel might be performing those functions, and specify how
the Office intends to transition contract personnel from those
functions within the fiscal year given the statutory mission of
the OIA, as described on its website, to ``ensure that
information related to homeland security threats is collected,
analyzed, and disseminated to the full spectrum of homeland
security customers in the Department, at state, local, and
tribal levels, in the private sector, and in the Intelligence
Community.''
Department of Homeland Security--Analysis
The Committee has raised a number of concerns with reports
issued by the Department of Homeland Security OIA that
inappropriately analyze the legitimate activities of U.S.
persons. These reports raised fundamental questions about the
mission of the OIA and often used certain questionable open
source information as a basis of their conclusions. The
Committee recommends that the next Under Secretary for
Intelligence and Analysis conduct a comprehensive review of the
quality and relevance of the intelligence products produced by
the OIA, and provide this review to the congressional
intelligence committees within 180 days of enactment.
National Immigration Information Sharing Office of the Department of
Homeland Security
The Committee has closely followed the development of the
National Immigration Information Sharing Office (NIISO) within
the Department of Homeland Security. NIISO is intended to
facilitate the use of citizenship and immigration information
currently being collected and housed at a U.S. Citizenship and
Immigration Service's facility. Because the NIISO relates to
the use of citizenship and immigration information for
intelligence purposes, the Congress has been attentive to civil
liberties and privacy concerns associated with the NIISO.
According to the Consolidated Security, Disaster
Assistance, and Continuing Appropriations Act, 2009, ``[n]one
of the funds provided in this or any other Act shall be
available to commence operations of the National Immigration
Information Sharing Operation until the Secretary certifies
that such program complies with all existing laws, including
all applicable privacy and civil liberties standards, the
Comptroller General of the United States notifies the
Committees on Appropriations of the Senate and the House of
Representatives and the Secretary that the Comptroller has
reviewed such certification, and the Secretary notifies the
Committees on Appropriations of the Senate and the House of
Representatives of all funds to be expended on the National
Immigration Information Sharing Operation pursuant to section
503.'' The Committee endorses this provision and awaits the
Secretary's certification.
Compliance with Senate Rule XLIV
The bill and classified annex create no earmarks as defined
by rule XLIV of the Standing Rules of the Senate, which
requires publication of a list of congressionally directed
spending items. The bill and classified annex contain no
limited tax benefits or limited tariff benefits.
COMMITTEE ACTION
Vote to report the committee bill
On July 16, 2009, a quorum for reporting being present, the
Committee voted to report the bill, by a vote of 15 ayes and no
noes. The votes in person or by proxy were as follows: Chairman
Feinstein--aye; Senator Rockefeller--aye; Senator Wyden--aye;
Senator Bayh--aye; Senator Mikulski--aye; Senator Feingold--
aye; Senator Nelson--aye; Senator Whitehouse--aye; Vice
Chairman Bond--aye; Senator Hatch--aye; Senator Snowe--aye;
Senator Chambliss--aye; Senator Burr--aye; Senator Coburn--aye;
Senator Risch--aye.
Votes on amendments to committee bill and the classified annex
On July 15, 2009, by a voice vote, the Committee agreed to
a managers' amendment by Chairman Feinstein and Vice Chairman
Bond to authorize: (1) additional fulltime equivalent personnel
in order to improve proficiency in critical foreign languages
(Section 306) (sponsored by Senator Wyden and Senator
Chambliss); (2) the DNI to make available CIA acquisition
authorities to other elements of the Intelligence Community
(Section 326); (3) a requirement for a study and strategy on
intelligence collection capabilities against the threat of
biological weapons (Section 339) (sponsored by Senator Burr and
Senator Mikulski); (4) expenditure authority for the Director
of the DIA (Section 434); and (5) a governance structure for
the Diplomatic Telecommunications Service Network (Title V). In
addition, the amendment narrowed Section 352, relating to
sharing terrorist identification information, and incorporated
technical and conforming amendments.
On July 15, 2009, by a voice vote, the Committee agreed to
an amendment by Chairman Feinstein as modified concerning
classified activities that are further described in the
classified annex.
On July 15, 2009, by a vote of 11 ayes to 4 noes, the
Committee adopted an amendment by Chairman Feinstein concerning
congressional notifications further described in the classified
annex. The votes in person or by proxy were as follows:
Chairman Feinstein--aye; Senator Rockefeller--aye; Senator
Wyden--aye; Senator Bayh--aye; Senator Mikulski--aye; Senator
Feingold--aye; Senator Nelson--aye; Senator Whitehouse--aye;
Vice Chairman Bond--no; Senator Hatch--no; Senator Snowe--aye;
Senator Chambliss--no; Senator Burr--aye; Senator Coburn--no;
Senator Risch--aye.
On July 15, 2009, by a voice vote, the Committee agreed to
an amendment by Chairman Feinstein, Senator Rockefeller,
Senator Bayh, Senator Mikulski, Senator Feingold, Senator
Whitehouse and Senator Snowe to improve congressional and
Executive branch oversight of cyber security activities
(Section 340).
On July 15, 2009, by a vote of 9 ayes to 6 noes, the
Committee adopted an amendment by Chairman Feinstein pertaining
to congressional oversight (Section 331). The votes in person
or by proxy were as follows: Chairman Feinstein--aye; Senator
Rockefeller--aye; Senator Wyden--aye; Senator Bayh--aye;
Senator Mikulski--aye; Senator Feingold--aye; Senator Nelson--
aye; Senator Whitehouse--aye; Vice Chairman Bond--no; Senator
Hatch--no; Senator Snowe--aye; Senator Chambliss--no; Senator
Burr--no; Senator Coburn--no; Senator Risch--no.
On July 15, 2009, by a voice vote, the Committee agreed to
an amendment by Vice Chairman Bond as modified to require the
identification of senior intelligence management officials
responsible for correcting long-standing correctable material
weaknesses (Section 359).
On July 15, 2009, by a voice vote, the Committee agreed to
an amendment by Vice Chairman Bond concerning classified
activities that are further described in the classified annex.
On July 15, 2009, by a voice vote, the Committee agreed to
a second amendment by Vice Chairman Bond concerning classified
activities that are further described in the classified annex.
On July 15, 2009, by a voice vote, the Committee agreed to
a third amendment by Vice Chairman Bond concerning classified
activities that are further described in the classified annex.
On July 15, 2009, by a vote of 13 ayes to 2 noes, the
Committee adopted an amendment by Vice Chairman Bond expressing
a Sense of the Senate that a subcommittee on intelligence
should be created by the Senate Appropriations Committee
(Section 341). The votes in person or by proxy were as follows:
Chairman Feinstein--aye; Senator Rockefeller--aye; Senator
Wyden--aye; Senator Bayh--aye; Senator Mikulski--aye; Senator
Feingold--no; Senator Nelson--no; Senator Whitehouse--aye; Vice
Chairman Bond--aye; Senator Hatch--aye; Senator Snowe--aye;
Senator Chambliss--aye; Senator Burr--aye; Senator Coburn--aye;
Senator Risch--aye.
On July 15, 2009, by a vote of 8 ayes to 7 noes, the
Committee adopted an amendment by Senator Rockefeller
concerning congressional notifications (Sections 332 and 334).
The votes in person or by proxy were as follows: Chairman
Feinstein--aye; Senator Rockefeller--aye; Senator Wyden--aye;
Senator Bayh--aye; Senator Mikulski--aye; Senator Feingold--
aye; Senator Nelson--no; Senator Whitehouse--aye; Vice Chairman
Bond--no; Senator Hatch--no; Senator Snowe--aye; Senator
Chambliss--no; Senator Burr--no; Senator Coburn--no; Senator
Risch--no.
On July 15, 2009, by a voice vote, the Committee agreed to
an amendment by Senator Wyden and Senator Feingold as modified
concerning the Public Interest Declassification Board (Section
357).
On July 15, 2009, by a vote of 8 ayes to 7 noes, the
Committee adopted an amendment by Senator Wyden and Senator
Feingold concerning Government Accountability Office audits of
the Intelligence Community (Section 335). The votes in person
or by proxy were as follows: Chairman Feinstein--aye; Senator
Rockefeller--aye; Senator Wyden--aye; Senator Bayh--aye;
Senator Mikulski--aye; Senator Feingold--aye; Senator Nelson--
aye; Senator Whitehouse--aye; Vice Chairman Bond--no; Senator
Hatch--no; Senator Snowe--no; Senator Chambliss--no; Senator
Burr--no; Senator Coburn--no; Senator Risch--no.
On July 15, 2009, by a voice vote, the Committee agreed to
an amendment by Senator Chambliss and Senator Bayh as modified
concerning classified activities that are further described in
the classified annex.
On July 16, 2009, by a vote of 10 ayes to 5 noes, the
Committee adopted an amendment by Vice Chairman Bond concerning
the publication of unclassified versions of intelligence
products (Section 427). The votes in person or by proxy were as
follows: Chairman Feinstein--no; Senator Rockefeller--no;
Senator Wyden--aye; Senator Bayh--aye; Senator Mikulski--no;
Senator Feingold--aye; Senator Nelson--no; Senator Whitehouse--
no; Vice Chairman Bond--aye; Senator Hatch--aye; Senator
Snowe--aye; Senator Chambliss--aye; Senator Burr--aye; Senator
Coburn--aye; Senator Risch aye.
On July 16, 2009, by a vote of 9 ayes to 6 noes, the
Committee adopted an amendment by Senator Feingold and Vice
Chairman Bond, that requires the President to disclose to the
public the funding level requested for the National
Intelligence Program on the date the budget request is
submitted and eliminates the provision in current law whereby
the President may waive or postpone the disclosure of the
aggregate amount of funds appropriated by Congress for the
National Intelligence Program on national security grounds
starting after fiscal year 2009, superseding a provision that
would have delayed the President's authority to waive or
postpone the aggregate amount of funds appropriated by Congress
starting after fiscal year 2011 (Section 356). The votes in
person or by proxy were as follows: Chairman Feinstein--aye;
Senator Rockefeller--aye; Senator Wyden--aye; Senator Bayh--
aye; Senator Mikulski--aye; Senator Feingold--aye; Senator
Nelson--no; Senator Whitehouse--no; Vice Chairman Bond--aye;
Senator Hatch--aye; Senator Snowe--aye; Senator Chambliss--no;
Senator Burr--no; Senator Coburn--no; Senator Risch--no.
On July 16, 2009, by a vote of 10 ayes to 5 noes, the
Committee adopted an amendment by Senator Feingold to establish
a commission on foreign intelligence and information (Title
VI). The votes in person or by proxy were as follows: Chairman
Feinstein--aye; Senator Rockefeller--aye; Senator Wyden--aye;
Senator Bayh--aye; Senator Mikulski--aye; Senator Feingold--
aye; Senator Nelson--aye; Senator Whitehouse--aye; Vice
Chairman Bond--no; Senator Hatch--no; Senator Snowe--aye;
Senator Chambliss--no; Senator Burr--no; Senator Coburn--aye;
Senator Risch--no.
On July 16, 2009, by a vote of 14 ayes to 1 no, the
Committee adopted an amendment by Senator Feingold to amend the
National Security Act of 1947 by requiring that the
congressional intelligence committees be provided with the
legal authorities under which all covert action and all other
intelligence activities are or were conducted (Section 333).
The votes in person or by proxy were as follows: Chairman
Feinstein--aye; Senator Rockefeller--aye; Senator Wyden--aye;
Senator Bayh--aye; Senator Mikulski--aye; Senator Feingold--
aye; Senator Nelson--aye; Senator Whitehouse--aye; Vice
Chairman Bond--aye; Senator Hatch--aye; Senator Snowe--aye;
Senator Chambliss--no; Senator Burr--aye; Senator Coburn--aye;
Senator Risch aye.
On July 16, 2009, by a voice vote, the Committee adopted an
amendment by Senator Coburn, as amended by Chairman Feinstein,
concerning reports on national security threats posed by
Guantanamo Bay detainees (Section 337). The second degree
amendment by Chairman Feinstein was adopted by a vote of 9 ayes
and 6 noes. The votes in person or by proxy were as follows:
Chairman Feinstein--aye; Senator Rockefeller--aye; Senator
Wyden--aye; Senator Bayh--aye; Senator Mikulski--aye; Senator
Feingold--aye; Senator Nelson--aye; Senator Whitehouse--aye;
Vice Chairman Bond--no; Senator Hatch--no; Senator Snowe--aye;
Senator Chambliss--no; Senator Burr--no; Senator Coburn--no;
Senator Risch--no. The amendment was further amended by
unanimous consent.
On July 16, 2009, by a voice vote, the Committee agreed to
an amendment by Senator Hatch to establish an awards program
for certain exceptional Intelligence Community officers that is
further described in the classified annex.
On July 16, 2009, by a voice vote, the Committee agreed to
an amendment offered by Senator Chambliss on behalf of Senator
Hatch concerning classified activities that are further
described in the classified annex.
ESTIMATE OF COSTS
Pursuant to paragraph 11(a)(3) of rule XXVI of the Standing
Rules of the Senate, the Committee deems it impractical to
include an estimate of the costs incurred in carrying out the
provisions of this report due to the classified nature of the
operations conducted pursuant to this legislation. On July 21,
2009, the Committee transmitted this bill to the Congressional
Budget Office and requested it to conduct an estimate of the
costs incurred in carrying out its provisions.
EVALUATION OF REGULATORY IMPACT
In accordance with paragraph 11(b) of rule XXVI of the
Standing Rules of the Senate, the Committee finds that no
substantial regulatory impact will be incurred by implementing
the provisions of this legislation.
CHANGES IN EXISTING LAWS
In the opinion of the Committee, it is necessary to
dispense with the requirements of paragraph 12 of rule XXVI of
the Standing Rules of the Senate in order to expedite the
business of the Senate.
ADDITIONAL VIEWS OF VICE CHAIRMAN BOND AND SENATORS HATCH, CHAMBLISS,
BURR, COBURN, AND RISCH
For the first time in several years, the Committee has
successfully voted out a relatively clean bill that should pass
muster with the House and Senate and be signed into law by the
President. We attribute much of this success to the leadership
of our Chairman, Senator Dianne Feinstein, who worked with all
of the Members of the Committee to fashion a bipartisan bill.
GOOD GOVERNMENT PROVISIONS
We are pleased that our bill contains a number of good
government provisions that we have been developing over the
past several years. These provisions will improve the
efficiency and accountability of the Intelligence Community and
provide the Director of National Intelligence (DNI) with some
additional tools to better perform his duties under the
National Security Act of 1947.
A number of these good government provisions relate to the
Intelligence Community's budgetary and acquisition processes.
Sections 323 and 324 will operate together to address the
problem of cost overruns in major system acquisitions by the
Intelligence Community. These provisions were modeled on the
Nunn-McCurdy provision in title 10 of the United States Code.
They encourage greater DNI involvement in the acquisition
process and enable the congressional intelligence committees to
perform more effective and timely oversight of cost increases.
Section 321 requires the DNI to conduct initial and
subsequent vulnerability assessments for any major system, and
its items of supply, that is included in the National
Intelligence Program (NIP). Such assessments will ensure that
any vulnerabilities or risks associated with a particular
system are identified and resolved at the earliest possible
stage.
Section 325 requires the DNI, with the concurrence of the
Office of Management and Budget, to provide the congressional
intelligence committees with a future year intelligence plan
and a long-term budget projection each fiscal year beginning
with the budget for fiscal year 2011. These important planning
tools will enable the DNI and the congressional intelligence
committees to ``look over the horizon'' and resolve significant
budgetary issues before they become problematic.
Section 322 requires the DNI to create a comprehensive
business enterprise architecture that will define all
Intelligence Community business systems. This architecture will
incorporate Intelligence Community financial, personnel,
procurement, acquisition, logistics, and planning systems into
one interoperable and modernized system.
Vice Chairman Bond sponsored a new provision this year,
Section 359, which is intended to help the Intelligence
Community correct several long-standing management
deficiencies, known as ``material weaknesses.'' These material
weaknesses have contributed to the inability of certain
Intelligence Community agencies to pass an independent
financial audit. Section 359 addresses this problem by
requiring the agency heads for the Central Intelligence Agency
(CIA), Defense Intelligence Agency, National Geospatial-
Intelligence Agency, National Reconnaissance Office, and
National Security Agency to identify the specific senior
intelligence management officials within their respective
agencies who are responsible for correcting applicable long-
standing material weaknesses.
Section 305 continues the theme of encouraging good
government. This section directs the DNI to conduct annual
personnel level assessments of each element of the Intelligence
Community that capture the number and costs of personnel,
including contractors, for that element. These assessments will
aid both the DNI and the congressional intelligence committees
in the exercise of their respective responsibilities on
personnel funding issues.
Finally, Section 401 provides the DNI with the authority to
conduct accountability reviews of elements and personnel of the
Intelligence Community in relation to their significant
failures or deficiencies. This section will encourage
Intelligence Community elements to address their own internal
failures or deficiencies--something they at times have been
reluctant to do before now. In the event that they are
reluctant or unable to do so, this provision gives the DNI the
authority he needs to conduct his own reviews.
We are confident that these good government measures will
lead to a stronger, more efficient, and more effective
Intelligence Community. Major systems acquisition is an
important issue for our warfighters and intelligence
collectors, especially as technological capabilities evolve. It
is also essential that the Intelligence Community has
sufficient and appropriate personnel to do the demanding jobs
that are required to keep our nation safe and defeat our
enemies.
CLASSIFIED INFORMATION
We have always been strong proponents of protecting
classified information. Some might find it strange, then, that
Vice Chairman Bond sponsored, and we all supported, an
amendment requiring the Director of the CIA to make publicly
available an unclassified version of four classified documents
assessing the information obtained from certain high-value
terrorists.
We believe this amendment, Section 427, was necessary in
light of the Administration's recent declassification and
publication of numerous documents about the CIA's detention and
interrogation program. At the time, we objected to the release
of these documents because it would give our enemies valuable
insights into the types of limitations we impose on our
intelligence collectors and allow terrorists to improve their
interrogation resistance tactics. That damage has now been
done.
Unfortunately, the released documents, selectively chosen
and selectively redacted, do not provide the American public
with any objective perspective on the value of the information
obtained from these high-value detainees. Indeed, with one
highly sensitive document, the Administration declassified
virtually the entire memo, except for those paragraphs in which
the value of the intelligence obtained was discussed. By
requiring the Director of the CIA to provide an unclassified
version of these four documents to the public, the American
people can make their own assessment of the value of the
information obtained from these high-value terrorists.
Let us be clear about what Section 427 does not do: unlike
the Administration's recent declassification of highly
sensitive detention and interrogation documents, Section 427
does not require the declassification of these four documents.
Rather, it requires only the release of an unclassified version
prepared by the Central Intelligence Agency. We have reviewed
each of the documents covered by this amendment. By limiting
Section 427 in this manner, we are confident that no
intelligence sources and methods will be disclosed and that
there will be no damage to our national security.
RELEASE OR TRANSFER OF DETAINEES
Beginning during the Bush Administration and continuing
under the current Administration, hundreds of detainees from
the Naval Detention Facility at Guantanamo Bay, Cuba (GTMO)
have been released or transferred to other countries.
Unfortunately, many of these released individuals remain a
threat to the United States and its interests. According to
information released by the Department of Defense in March of
this year, the recidivism rate for these former detainees was
more than 14 percent. It is now judged to be even higher. Yet,
not one of the threat assessments on these detainees was
provided to the congressional intelligence committees prior to
their release. This is unacceptable.
In May 2009, the Committee learned that of the 60 detainees
at GTMO who have been judged by the current and previous
Administrations to be eligible for release or transfer, the
Defense Intelligence Agency recommended that 25 continue to be
held, due to the threat they posed. Five of those 25 were
assessed to ``pose the most significant threat of reengagement
in serious acts of terrorism.'' Congress should not be placed
in the position of not knowing whether dangerous individuals
are being released who may threaten our homeland again.
Senator Coburn offered an amendment that would have solved
this problem by requiring the DNI to report to the
congressional intelligence committees at least 30 days prior to
the release or transfer of any GTMO detainee with an assessment
of the detainee's suitability for release or transfer. When his
amendment was replaced with a second degree amendment, this
useful congressional oversight tool was lost. In its place,
Section 337 requires a less timely quarterly report from the
DNI that assesses the suitability for release or transfer of
detainees previously released or transferred, or to be released
or transferred from GTMO. It is conceivable that this
formulation could result in certain detainees being transferred
or released prior to congressional review of threat assessment
information. Also lost as a result of the second degree
amendment was a provision that would have allowed the American
people to be told when a detainee was released or transferred
in spite of a negative threat assessment. We find it ironic,
and highly disturbing, that the American people can know when a
sex offender resides in the community, but cannot be told when
a former detainee moves in down the street.
CONGRESSIONAL NOTIFICATION
Section 332, which we opposed, modifies the current balance
in the National Security Act with respect to the congressional
notification procedures. It imposes new requirements when the
Executive branch determines that disclosure to less than the
full membership of the Committee is appropriate. Section 332
requires that, in those cases, the Executive branch must
provide the ``main features'' of the program to the entire
membership of the intelligence committees. Although Members who
supported this amendment made it clear that they would defer to
the Administration's determination of what ``main features'' to
provide, we are concerned that in the future we may face a
circumstance similar to one in which we find ourselves today--
where the Administration met the requirements of the National
Security Act, but for reasons of political expediency, is
nonetheless accused of not fully informing Congress. Closed
door assurances will be of small consolation to future CIA
employees accused of not adequately providing the ``main
features.'' For this reason, while this general notice
requirement is significantly less controversial than its
predecessors, we believe this requirement will unnecessarily
increase the tension between the Legislative and Executive
branches over information access.
We also opposed the adoption of Section 331 because it
appears to be little more than legislative surplusage. Section
331 states that ``there shall be no exception to the
requirements to inform the congressional intelligence
committees of all intelligence activities and covert action.''
The Select Committee on Intelligence expects the Intelligence
Community to comply with the congressional notification
procedures in the National Security Act and keep it ``fully and
currently informed'' of all covert actions and intelligence
activities. As long as further substantive changes are not made
to congressional notification requirements, including Gang of
Eight provisions, the addition of this ``no exception'' clause
to the general congressional oversight provision should have
little, if any, practical impact on the interpretation of the
notification procedures.
Christopher ``Kit'' Bond.
Orrin G. Hatch.
Saxby Chambliss.
Richard Burr.
Tom Coburn.
James E. Risch.
ADDITIONAL VIEWS OF SENATORS ROCKEFELLER AND SNOWE
Title V of the National Security Act of 1947 requires the
President to ensure that the congressional intelligence
committees are kept ``fully and currently informed'' of the
intelligence activities of the United States, including any
significant anticipated intelligence activity. For years, we
have been very concerned about the way in which the Executive
branch has interpreted this obligation. Rather than briefing
the full Committee, the Executive branch has restricted
briefings about certain classified programs to the Chairman and
Vice Chairman of the Committee and the Chairman and Ranking
Member of the House Permanent Select Committee on Intelligence.
This is not an academic issue; it is an issue of how our
democracy makes critical and secret national security
decisions. Without the intelligence committees' meaningful
independent review and oversight--the very reason for the
committees' existence--intelligence programs are susceptible to
both mistakes and illegitimacy. This is the case regardless of
which party is in the White House or which party has a majority
in Congress.
With this in mind, we supported an amendment to the
authorization bill that will establish in statute new
requirements regarding notification. This amendment is not a
wholesale change to the longstanding law of congressional
notifications, and it does not eliminate the ``Gang of Eight''
notification process regarding covert actions, which many of us
believe can serve an important purpose for quick and timely
notifications on extraordinarily sensitive covert actions.
Instead, the amendment seeks to improve the notification
processes that have existed for years. The amendment will
require that whenever the DNI or an intelligence agency chief
chooses to brief less than the full committee on an
intelligence activity or invokes the ``Gang of Eight''
provision regarding covert action, he or she must (1) notify
the full committee of that fact and (2) provide a description
of the ``main features'' of the activity or covert action in
question. The amendment enforces these requirements by
prohibiting funds for intelligence activities and covert
actions that are not so notified.
This amendment has had bipartisan support for many years.
In fact, a bipartisan majority of the Senate Intelligence
Committee has adopted this amendment in fiscal years 2007,
2008, 2009, and 2010. In three different Congresses and under
two different Administrations, this Committee has on four
occasions expressed its view regarding congressional
notifications in cases when the full Committee is not briefed.
It should be clear that year in and year out, this Committee
holds the same consistent opinion on this fundamental issue of
Congressional oversight--no matter who is in power at either
end of Pennsylvania Avenue.
This amendment favors no particular party and no particular
branch of government; it simply addresses an important concern.
The Committee's oversight of the Executive branch's
intelligence activities should not be adversarial; it should be
a true, trusted and confidential partnership aimed exclusively
at improving our nation's collection and analysis capabilities,
and ensuring the effectiveness and legitimacy of our covert
action programs.
Together with the other congressional notification
amendments that the Committee has accepted in the fiscal year
2010 authorization bill, this amendment will strengthen our
constructive oversight relationship with the Executive branch
and the intelligence community.
John D. Rockefeller IV.
Olympia J. Snowe.
ADDITIONAL VIEWS OF SENATOR FEINGOLD
The Fiscal Year 2010 Intelligence Authorization bill
includes an amendment I offered to establish an independent
commission to significantly reform and improve our intelligence
capabilities. The amendment, which is similar to the Feingold-
Hagel amendment of last year and which was again approved on a
bipartisan basis, addresses structural problems in our
government that prevent global coverage and perpetuate gaps in
our ability to anticipate terrorist as well as other threats
and crises before they appear. For example, the 9/11 Commission
recommended that the ``U.S. government must identify and
prioritize actual or potential terrorist sanctuaries.'' Yet, as
the Director of the National Counterterrorism Center has
testified, ``much of the information about the instability that
can lead to safe havens or ideological radicalization comes not
from covert collection but from open collection, best done by
Foreign Service Officers.'' The commission established by the
amendment would thus focus on the critical reform of
integrating the country's intelligence capabilities with the
open gathering and reporting of information by other elements
of the United States Government, particularly the State
Department, thereby strengthening our overall collection,
reporting and analytical capabilities.
The Committee also approved my amendment, cosponsored by
Committee Vice Chairman Bond and Senator Wyden, requiring the
president to submit an unclassified top-line budget request for
the National Intelligence Program. This reform makes possible a
recommendation of the 9/11 Commission to improve oversight by
passing a separate intelligence appropriations bill and
provides for greater transparency and accountability for
intelligence spending. It is my view that the Senate should
also implement another one of the Commission's
recommendations--granting appropriations authorities to the
Senate Intelligence Committee--by passing the bipartisan S.
Res. 164.
The Committee approved an amendment I offered requiring
that the congressional intelligence committees be provided with
the legal authorities under which all covert action and other
intelligence activities are or were conducted. This
requirement, which will allow the committees to review the
opinions of the Department of Justice's Office of Legal Counsel
(OLC), those of the General Counsels of entities of the
Intelligence Community, and other legal bases for intelligence
activities, follows years of efforts by the Committee to obtain
legal justifications for various intelligence programs. The
Fiscal Year 2007, 2008, 2009 and 2010 Intelligence
Authorization bills required that the Committee be provided all
guidelines on the application of the Detainee Treatment Act to
the detention and interrogation activities of the Intelligence
Community, including legal opinions of the Department of
Justice on the matter. The Committee also repeatedly requested
Department of Justice legal opinions that supported the
warrantless wiretapping program, the actual text of which the
Committee described, in its report accompanying the FISA
Amendments Act (FAA), as ``important for obtaining a complete
understanding of the program.'' The frequent challenges faced
by the Committee, as well as the highly selective nature of
executive branch cooperation (opinions related to the
warrantless wiretapping program were only made available nine
days before the Committee's mark-up of the FAA) require a clear
statutory obligation to provide legal opinions as a matter of
course.
The bill also includes a number of important efforts to
improve oversight of current intelligence activities. An
amendment offered by Chairman Feinstein that I co-sponsored
requires that the Committee be provided critical documents
related to cybersecurity activities, including the legal
justifications for those activities, any certifications of
legality, privacy impact assessments, and a plan for
independent audits. The bill also limits funding for elements
of the Comprehensive Cybersecurity Initiative pending receipt
of documents related to the privacy of Americans and to the
legal basis for the Initiative, including any analysis by the
OLC under the current administration. This follows an amendment
I included in last year's bill to limit funding until the
Committee received other critical information related to the
Initiative. Finally, the bill withholds funding for a different
intelligence program until members' committee staff have access
to the program. Limited staff access impedes meaningful
oversight and I have repeatedly registered my concerns about
the persistence of this problem.
Efforts in recent years to improve congressional oversight
have also included addressing the abuse of the so-called ``Gang
of Eight'' provision of the National Security Act, most notably
in the cases of the previous administration's detention and
interrogation and warrantless wiretapping programs. The bill
includes an amendment ensuring that all members of the
Committee receive basic information about matters only briefed
to the Chairman and Vice Chairman. While I supported the
amendment, I am concerned that, unless all members of the
Committee are fully notified of all intelligence activities,
including covert action, effective oversight of operational,
policy, budgetary and legal aspects of those activities will
not be possible. It is therefore my position that the ``Gang of
Eight'' provision should be eliminated entirely.
It is my position that legislative action is still required
in the area of interrogation, detention and rendition. While I
applauded President Obama's swift, unilateral action to end the
CIA's detention and interrogation program, Executive Orders can
be withdrawn, and the previous administration even asserted the
authority to do so secretly. Moreover, the overwhelming legal,
moral and policy grounds for prohibiting torture and secret
detention transcend changes in administration and require clear
statutory language to bind future presidents as well.
Greater statutory clarity is also needed in the area of
rendition. Under the January 22, 2009 Executive Order on
detention and the interrogation, the CIA has the authority to
temporarily detain individuals and transfer them to foreign
countries. While the law prohibits transfer if a detainee is
likely to be tortured, it does not specifically prohibit the
CIA from knowingly transferring a detainee to extended
incommunicado detention or indefinite detention without charge.
Yet State Department human rights reports have made clear the
direct connection between indefinite, incommunicado detention
and torture. Moreover, our government has condemned such
detention by other countries around the world, regardless of
whether the detained individuals were subjected to physical
mistreatment. New legislation is therefore required to ensure
that any CIA renditions are consistent, not only with our legal
obligations, but with U.S. policy and with our values.
The bill includes two amendments offered by Senator Wyden
that I co-sponsored, ensuring access to the Intelligence
Community by the Government Accountability Office, and
strengthening the role of the Public Interest Declassification
Board. These provisions further accountability and
transparency.
Finally, I am concerned about a provision of the bill
creating an exemption from the Freedom of Information Act for
certain information related to terrorist watchlisting. It is
not yet clear that this new statutory exemption is needed and I
will continue to work with the Committee and with the ODNI on
this matter.
Russell D. Feingold.
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