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[Senate Hearing 110-837]
[From the U.S. Government Printing Office]
S. Hrg. 110-837
STATUTORY AUTHORITIES OF THE DIRECTOR OF NATIONAL INTELLIGENCE
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HEARING
BEFORE THE
SELECT COMMITTEE ON INTELLIGENCE
OF THE
UNITED STATES SENATE
ONE HUNDRED TENTH CONGRESS
SECOND SESSION
__________
FEBRUARY 14, 2008
__________
Printed for the use of the Select Committee on Intelligence
Available via the World Wide Web: http://www.access.gpo.gov/congress/
senate
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SELECT COMMITTEE ON INTELLIGENCE
[Established by S. Res. 400, 94th Cong., 2d Sess.]
JOHN D. ROCKEFELLER IV, West Virginia, Chairman
CHRISTOPHER BOND, Missouri, Vice Chairman
DIANNE FEINSTEIN, California JOHN WARNER, Virginia
RON WYDEN, Oregon CHUCK HAGEL, Nebraska
EVAN BAYH, Indiana SAXBY CHAMBLISS, Georgia
BARBARA A. MIKULSKI, Maryland ORRIN G. HATCH, Utah
RUSSELL D. FEINGOLD, Wisconsin OLYMPIA J. SNOWE, Maine
BILL NELSON, Florida RICHARD BURR, North Carolina
SHELDON WHITEHOUSE, Rhode Island
HARRY REID, Nevada, Ex Officio
MITCH McCONNELL, Kentucky, Ex Officio
CARL LEVIN, Michigan, Ex Officio
JOHN McCAIN, Arizona, Ex Officio
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Andrew W. Johnson, Staff Director
Louis B. Tucker, Minority Staff Director
Kathleen P. McGhee, Chief Clerk
CONTENTS
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FEBRUARY 14, 2008
OPENING STATEMENTS
Hon. John D. Rockefeller IV, Chairman, a U.S. Senator from West
Virginia....................................................... 1
Hon. Christopher S. Bond, Vice Chairman, a U.S. Senator from
Missouri....................................................... 3
WITNESS
Hon. J. Michael McConnell, Director of National Intelligence..... 5
SUBMISSIONS FOR THE RECORD
Hon. Russell D. Feingold, a U.S. Senator from Wisconsin, prepared
statement...................................................... 28
Prepared Statement of Hon. J. Michael McConnell, Director of
National Intelligence.......................................... 29
Turner, Kathleen, Director of Legislative Affairs, Office of the
Director of National Intelligence, letters transmitting
responses to questions from Committee Members, July 3, 2008 and
July 24, 2008.................................................. 41
STATUTORY AUTHORITIES OF THE DIRECTOR OF NATIONAL INTELLIGENCE
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THURSDAY, FEBRUARY 14, 2008
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U.S. Senate,
Select Committee on Intelligence,
Washington, DC.
The Committee met, pursuant to notice, at 2:42 p.m., in
room SH-216, Hart Senate Office Building, the Honorable Jay
Rockefeller, Chairman of the Committee, presiding.
Committee Members Present: Senators Rockefeller, Feinstein,
Wyden, Feingold, Whitehouse, Bond, Warner, and Snowe.
OPENING STATEMENT OF HON. JOHN D. ROCKEFELLER IV, CHAIRMAN, A
U.S. SENATOR FROM WEST VIRGINIA
Chairman Rockefeller. My apologies to the Director and to
my colleagues for being late. Our witness today appears to be
the Director of National Intelligence, Admiral Mike McConnell.
And seated behind the Director, a number of his key staff, and
we've made space for a least three of them in case anybody
wants to leap forward to give answers, make a point during the
hearing.
Director McConnell. To save the Director. [Laughter.]
Chairman Rockefeller. I would say that would be at your
discretion.
Congress created the position of Director of National
Intelligence, or the DNI, because most of us felt that it was
no longer practical to expect the head of CIA to manage the
entire U.S. intelligence community; in fact, it was self-
evident. It was a very glum period, in fact, in terms of
intelligence organization and it seems like a long time ago but
it really wasn't.
Additionally, we believe that the leader of the
intelligence community needs to have more authorities than
those possessed by the Director of Central Intelligence in
order to effectively manage and direct resources against the
intelligence priorities, and we don't know that we put
everything out right, or did it right, which is the point of
this today.
And so the bill passed in 2004. It was a product of months
of heated debate. Many aspects of it are a product of
compromise rather than consensus. There were several points
about which the House and the Senate could not agree. So rather
than let negotiations collapse, certain issues were left
ambiguous or unresolved, which is often not helpful.
Some of us worry that Congress may not have given the DNI
enough authority to match his enormous responsibilities. I
count myself in that group. This is not to say that the
authorities assigned to the position under the reform law do
not give you a great deal of power; they do. The DNI determines
the budget of the intelligence community; he has the authority
to transfer money and positions from one intelligence agency to
another. But then that sentence needs to be explored. How
easily can that happen; what road blocks are thrown up.
Additionally, the DNI directly operates many critical
elements of the intelligence community such as the National
Counterterrorism Center, the National Counterproliferation
Center, the National Intelligence Council, which puts out the
NIEs.
The Senate Intelligence Committee is responsible for
conducting oversight of the intelligence community, and we take
that responsibility very seriously, and I think that the
Director and others in the intelligence community are coming to
understand that, that we're very oriented toward oversight, and
we feel that this has not been the case in the past. And the
Vice Chairman and I have very strong ideas about that.
But this means that we have an obligation to monitor your
activities in a constructive sense and evaluate whether you
have all of the appropriate tools and authorities that you need
in order to succeed. With 3 years of experience under our belt,
I think it's time for the committee to assess whether the
reform legislation has fulfilled its promise, or whether it has
not, and we need to make changes or whatever.
For example, one issue before the Committee is the proper
relationship of the DNI to the various elements of the
intelligence community. Most of these elements are located in
different cabinet departments, and it is the DNI's job to make
sure that they are all working together in a unified effort,
including those agencies such as NSA and NRO, which reside
within the Department of Defense.
The Committee must also consider whether the budget and the
personnel authorities that Congress has given the DNI are in
fact sufficient. The Intelligence Reform Act gives the DNI
significant power to move resources from one intelligence
agency to another, but if bureaucratic roadblocks cause every
transfer to take 6 months, then maybe we haven't done that at
all, and at least we need to discuss that.
In sum, the DNI exists because Congress and the American
people wanted the intelligence community to function as a
unified whole, and because we wanted somebody to be accountable
for the intelligence community's collective effectiveness, both
its successes and its failures. I firmly believe that Admiral
Mike McConnell, the current DNI, is the absolutely right person
for the job. So if his ability to lead and to manage the
intelligence community is somehow being hampered or compromised
or undermined in ways that may not be visible to this
Committee, we need to know about it and consider options for
eliminating those roadblocks, and we want to.
If, on the other hand, you are able to do your job
efficiently and effectively, then that's an encouraging sign
that the authorities may be aligned properly. So, again, that's
the point of the hearing. So before I turn to the Director for
his testimony, which I've read, I recognize Chairman Bond for
any opening statement that he wishes to make.
OPENING STATEMENT OF HON. CHRISTOPHER S. BOND, VICE CHAIRMAN, A
U.S. SENATOR FROM MISSOURI
Vice Chairman Bond. Mr. Chairman, thank you very much. I'm
not going to pass up this opportunity to share a few views.
Admiral McConnell, we thank you once again for appearing before
this Committee. You've been spending so much time up on the
Hill, it looks like you're camping out, but there are many
major issues that we have discussed with you, as we will again
at this hearing.
Today we meet again in one of our occasional public forums
to discuss the authorities you in your office need to do your
job to protect our Nation. At the outset, I highly commend your
leadership in attempting to bring the community together. Your
efforts to reform the FISA, Foreign Intelligence Surveillance
Act, to increase information sharing in collection, coordinate
intelligence collection, strengthen analysis, and reform human
capital management are particularly laudable.
I also, once again, publicly commend the tremendous work of
the individual members of the intelligence community--military
troops, civilians, contractors, all of them working together
keep us safe. We're grateful for them, indebted to them, and
very proud of the excellent work they do. Sound intelligence
work, however, is not easy; it's always difficult. It requires
exceptional skill, dedication, and sometimes exceptional
courage in the face of danger.
Your service is greatly appreciated, and we see the results
of your efforts every day.
This hearing is a rare chance to take stock of intelligence
reform as it has emerged from the Intelligence Reform and
Terrorism Protection Act of 2004, and decide where to go from
here. We asked when you first came into office to take a year
to formulate for us legislative recommendations so that we can
institutionalize what is best working now in the intelligence
community, and that we can improve upon intelligence reform,
which, as I have mentioned to you many times, I believe was at
best half-baked. I voted against IRTPA because I thought it
gave you all of the responsibility but not enough authority to
go with the responsibility.
I've also stated numerous times and repeat how impressed we
all are with the working relationship that you have with
Secretary Gates, Under Secretary Clapper, Directors Hayden,
Mueller, Maples and others.
But I well remember not so long ago when the relationships
in those offices were not as synergistic as today, and we
charged you with providing to us your thoughts on legislative
recommendations to institutionalize what we can in the
relationships you've developed informally.
Now, I'm well aware that relationships cannot be
institutionalized, and that with good people it doesn't matter
what you institutionalize; they find a way to get the job done,
and vice versa. But it certainly facilities cooperation to make
sure that the institutional structure is synergistic and
functional as it can be. And your recommendations today will be
very important.
While I've been a staunch supporter of your office, I
mentioned I didn't vote for the Act due to the major
compromises contained in the bill. The Act denied your office
the full authorities required truly to direct the intelligence
community, not just coordinate its activities, as did your
predecessor and the community management staff within the CIA.
Without exceptionally strong firm direction, the intelligence
community cannot act as one body, and we cannot achieve true
unity of purpose required to combat terror and prevent the use
of weapons of mass destruction against us and our allies.
There's an historical precedent to intelligence reform that
can be drawn in our experience with defense reform. The
landmark National Security Act of 1947 that created the
Department of Defense, the Air Force, the Joint Chiefs of
Staff, and the National Security Council nonetheless contain
serious organizational birth defects. These defects were
evident in the inter-service rivalries it suffered in Vietnam,
the failed hostage rescue attempt in Iran, and in poorly
coordinated operations in Grenada. It took congressional
leadership in the form of Goldwater-Nichols, of 1986, 40 years
after the National Security Act, to create that unity of
purpose that enabled the well-orchestrated effective joint
operations of our forces over the last two decades.
Mr. Director, I wish we had 40 years to get intelligence
reform right, but the harsh reality is we do not. The threat we
face today is shadowy, unpredictable, and immediate, putting
the lives and livelihoods of our citizens on the line here and
abroad. Timely, actionable, accurate intelligence is the key to
prevailing against that threat. And quality intelligence, in
turn, requires that all elements of the community act together
as one.
Strong DNI central direction and authority is required for
efficient management of the substantial resources of the IC.
Without it, each agency could go its own way, creating its own
data centers, its own networks, its own financial and personnel
systems, on and on, resulting in gross inefficiencies, making
collaboration and information-sharing even more difficult.
As the next administration decides how to grapple with
large near-term budget deficits and even larger ones as baby
boomers retire, your budget may well come under greater strain.
Your own program management plan, which we recently received,
acknowledges this strain and concludes it will require tough
program tradeoffs and achievements of greater efficiencies if
the community is to deliver the intelligence capabilities that
the Nation needs.
Mr. Director, this is your chance to tell us what
additional authorities you and you office need to be effective,
both within the 500 days of your current tenure and well beyond
that 500 days when I hope you may be able to and wish to
continue to serve. I'm particularly interested in what
authorities are needed in the realms of tasking and operational
direction, personnel accountability, and acquisition. And I
know this expectation puts you in a difficult spot,
particularly in public, because you would not want to appear in
any way to be in dissonance with the administration and the
Secretary of Defense.
But you're a tough guy in a tough job and we know you're up
to the assignment. If we can't get candid answers from you,
then we're all in trouble. I trust you will deliver us your
candid position today, and if it would help to move into a
closed session at a later time to discuss sensitive aspects of
the relationship in closed session so that you may speak more
freely, I would certainly be amenable to that and I would urge
the Chairman and the full committee to give you that
opportunity.
But now, we look forward to your public testimony. We thank
you for coming and look forward to your testimony and to your
responses to our questions. We place great stock in your views,
as the Chairman has indicated.
Chairman Rockefeller. Mr. Director?
STATEMENT OF ADMIRAL J. MICHAEL McCONNELL, USN (RET.), DIRECTOR
OF NATIONAL INTELLIGENCE
Director McConnell. Mr. Chairman, Vice Chairman Bond,
thank you for the opportunity to appear today. Members of the
Committee, I am pleased to be here.
Before I start, I want to thank you, Chairman Rockefeller
and Ranking Member Bond and members of the Committee and the
staff sitting behind you. And the reason for that thanks is all
the effort over many months to get the FISA legislation passed
through the Senate with an overwhelming majority. It passed 2
days ago with bipartisan support, and I think it is
commendable. I believe, under this Committee's leadership, we
now have a bill that is essential for our community to do its
job in protecting the country. The Senate bill needs to be
enacted now into law. If it is not, whether the Protect America
Act is extended or expires, either way, it will do grave damage
to our capabilities to protect the Nation if we don't have your
bill passed.
Why I might make that statement? The simple fact of the
matter is, we must rely on the private sector to be effective.
Without liability protection for the private sector, they are
less willing to help if the cost for that help is huge
lawsuits. As you know from your months of review, liability
protection does not exist in the current law--retroactive
liability protection does not exist in current law. It would
not exist in an extension and certainly would not exist if the
law were allowed to expire. Therefore, we must get the new bill
passed immediately if we are to maintain our capabilities to
stop terrorist attacks against the Nation.
Turning to today's topic, as you've noted, I'm joined by an
array of experts. And you're going to ask some technical
questions, I'm sure, and I won't hesitate to call them to the
table to help me in answering.
We in the intelligence community have a solemn mandate and
responsibility to provide relevant and objective analysis to
customers across the government from law enforcement officials,
to warfighters, to the President, and of course to the
Congress. Our mission is to create decision advantage for our
leadership. By decision advantage, we mean the ability to
prevent strategic surprise, provide warning, understand
emerging threats, track and prevent known threats, while
adapting to a changing world. In these activities in some
circumstances, as is known to this Committee, we also have an
operational role to confront or help reduce foreign threats to
the Nation.
This is not, as some have surmised, a passive community
sitting in an office merely conducting analysis. We are in the
field, as you noted, conducting aggressive collection
operations, actively engaged to create that decision advantage
that I mentioned earlier. There are a variety of views, as you
also mentioned, about how to structure this community. There
are four basic options.
The first is overseer, probably the weakest form. Second
would be a coordinator; third, an integrator; and fourth, a
director, someone who actually directs all of the community's
intelligence activities. I currently have the title of
Director, but the authorities created in statute and executive
order put me more in the middle of that range of options--
coordinator and integrator, rather than director with directive
authority.
This is because, of the 16 agencies that make up this
community, 15 of them work for a cabinet secretary in his or
her department. For decades, the community was led in a
decentralized fashion with various elements of the intelligence
community being directed largely by their department heads,
with limited direction from the Director of Central
Intelligence. Until the creation of the DNI, the Director of
Central Intelligence doubled as the Director of CIA, as you
mentioned, and was more of an overseer, the weakest form, for
the dozen or so intelligence agencies that existed at that
time.
It was apparent that managing the day-to-day activities of
the CIA while effectively overseeing a community composed of
organizations serving other cabinet-level departments was a
significant challenge for any single person. With the passage
of the reform act that you've mentioned in December 2004, the
DNI inherited a divided community that required greater
coordination and integration to be effective in meeting the new
threats.
Over 40 serious studies have been conducted since the 1947
National Security Act that recommended that the intelligence
community integrate its efforts under a single, empowered
leader. But it took two events--the trauma of September 11th
and the failure of intelligence on Iraq's weapons of mass
destruction National Intelligence Estimate--to spur dramatic
reform of the community.
Today, we are building on that 50-year legacy. Our mandate
is to lead this community of 16 agencies and components, of
which the DNI has direct reporting responsibility for only one,
the CIA. As mentioned, the remaining components are operating
under independent department heads. Our current structure
charts a middle path between a department of Intelligence with
line control over all elements and a confederated model, which
provides resources but not day-to-day direction of the
subordinate elements. This was the design of the 2004 Act that
created this office.
Often said, the intelligence community needs legislation
like the Goldwater-Nichols Act of the eighties for DOD. I would
note Goldwater-Nichols worked and is working well today. But it
was for a single department with all decision authority flowing
to the Secretary of Defense. We do not have a department of
Intelligence.
Our current model empowers an intelligence community
leader, the DNI, who manages strategic planning, policy,
budgets, but does not have direct operational control over
elements of the community. The DNI does not have direct
authority over the personnel in all of the 16 agencies in the
community.
As part of our 500-day plan, we have focused the DNI's role
as the integrator of the community. We seek to create
efficiencies and improved effectiveness in shared services like
security clearances, information-sharing, information
technology, and communications, but still promote an
environment where the elements of the community serve their
departmental responsibilities. This integration model of
governance across the departments is still being defined
because, quite frankly, we are in new territory for U.S.
intelligence, something that has never been tried before,
balanced with the need to have strong departmental intelligence
elements in each department.
This middle ground creates healthy tension--tension that
obliges us to take on big issues within the community while at
the same time doing so with the support and collaboration of
not only the 16 community members but in cooperation with the
cabinet department heads. The legislation of 2004 directed
specific responsibilities and tasks for the DNI and the office
of the DNI. We believe a limited corporate headquarters is
required to carry out our strategic tasks, such as the
following: analytic and collection leadership; integration and
prioritization; community-wide science and technology; budget
development and oversight; information technology integration;
information-sharing enhancement; human resources policy and
direction; equal opportunity and diversity direction and
management; and civil liberties and privacy protection
leadership and advocacy.
In addition, the office I'm responsible for operates the
following mission management-related centers and staff
elements: the National Intelligence Council, which produces our
National Intelligence Estimates; the National Counterterrorism
Center; the National Counterproliferation Center; the National
Counterintelligence Executive; the Office of Analytic Mission
Management; and the National Intelligence Coordination Center
to coordinate collection activities across the Federal
Government. This organizational structure enables the office to
implement the coordination and integration required by the 2004
Act and ensures that the community's collective efforts are
effective and efficient to some degree.
This arrangement has seen significant successes in the past
3 years. It's made an impact on how we do our business and our
contribution to the Nation's security. Let me provide a few
examples. We have significantly enhanced intelligence
collaboration across the community for collection, analysis,
and dissemination; improved analytic tradecraft by setting more
rigorous standards, promoting alternative analysis and enabling
greater analytic collaboration; resourced the National
Counterterrorism Center to ensure integration of all levels of
information relevant to counterterrorism as well as to promote
all-source intelligence collection collaboration and tasking
deconfliction; established an executive committee.
The Executive Committee is composed of the heads of the
various agencies and the principal customers that receive our
information. The executive committee is designed to take on the
tough issues to help the DNI with decisionmaking support when
we have to make hard decisions. We focused exclusively on
guiding the intelligence community at large, allowing the CIA
Director to give his agency the full attention that it
requires.
And of course, we worked with the Congress to update the
things like the FISA legislation; played a key role in the
interagency effort to enhance security for the Federal IT
networks, and hopefully for the IT networks of the Nation;
established a joint-duty program, which requires our future
leaders to have joint-duty for a promotion; greatly enhanced
classified information-sharing among our foreign partners. We
launched security clearance transformation. The purpose of that
is to save time and money and make us more efficient. And we
integrated and coordinated the intelligence community-wide
budget to ensure that we are making hard choices now to prepare
the community for the future.
I have just described where we were and where we are. I'll
take just a couple of moments to comment on where we want to
go. To further intelligence transformation, we have launched a
reform initiative aligned to our longer-term vision, which I
will profile briefly here. We must develop a workforce that
knows, understands, and trusts one another, and regularly
shares information to better develop intelligence products.
Initiatives such as the joint-duty effort are critical to
transforming that culture. We're also developing uniform
compensation policies across the community appropriate to a
highly performing workforce for the 21st century. This will
also serve as an incentive to bring our community closer
together.
We want to create a culture of intelligence analysts who
understand that they have a responsibility to provide the
needed information to the right customer in time to be useful.
Such a culture puts great pressure on our analysts. They must
know their customers better, they must understand how all the
collection systems work better, and they must meet their
obligations to protect sources and methods.
We need a seamless flow of information to be effective. We
cannot continue to maintain multiple, non-interoperable
networks within the community or operate with archaic
information-sharing regimes. Initiatives such as our single
information environment and modernizing our intelligence-
sharing policies and procedures will help us accomplish that
goal. By transforming how we identify and address collection
gaps, we will produce fused intelligence, creating better
situational awareness.
We must also unify the community around priority missions,
not around specific intelligence disciplines. Our mission
manager approach allows leaders in the community to bring best
solutions to solving a problem using multi-disciplinary teams
across the community. It's worked well for us and we look
forward to expanding that as we go forward.
We will gain influence over our potential adversaries by
exploiting America's advantage in technology and systems
management. This will require us to radically rethink the way
we identify, develop, and field promising new technologies. The
current approach is too slow. It's too slow to counter the
rapidly evolving threat. Specifically, this will require
acquisition reform, streamlining the procurement process, and
achieving greater synergies among our science and technology
communities.
It will be difficult to accomplish any of our objectives
with the antiquated business practices of our systems today. We
are working to deploy an integrated planning, programming,
budgeting, and performance management process that aligns
strategy to budget, budget to capabilities, and capabilities to
performance. This requires timely, accurate, reliable financial
systems with the ability to provide a quality financial
statement.
Where are we today on the question of DNI authorities? We
seek national intelligence authority that can focus, guide, and
coordinate the agencies of the community to ensure that our
customers get the service they need. We have some successes so
far, but there are impediments that slow our ability to take
rapid action. We will continue to address these impediments
forcefully, exercising our current authorities.
We are working as a member of an interagency process to
update current executive guidance on the operation of the
community. One of the main focus areas of this interagency
process is recommendations to the President for changing the
executive orders that govern our community. However, while we
work this interagency process, there are a few areas in which
your support is needed.
Personnel policies can be both transformational and serve
to create a common culture. We request that you act on the
recommendations that we have identified to build and support a
unified civilian workforce across the community. This includes
proposals to allow us to implement modern compensation
practices for all of our civilian employees; place all civilian
employees in the excepted service; and provide for critical-pay
positions. We also request relief from rigid civilian end-
strength ceilings. These reforms would provide the community
with flexibility to most effectively implement our joint-duty
program, create a performance culture, reward and retain our
best employees, and generally improve the strategic management
of the workforce.
In conclusion, Mr. Chairman, with your support, we're on
the right path. We've got a lot of work left to do. But we're
working hard to create that decision advantage to serve the
leaders of our Nation, to protect our citizens, our values, and
our way of life. Thank you, sir.
[The prepared statement of Director McConnell appears on
page 29.]
Chairman Rockefeller. Thank you, Director McConnell. The
Senate, in its constant effort to be helpful to hearings,
witnesses, and Members, has a vote about half the way through.
After that, there is one more. And so, to my regret, I must ask
that you be patient, which you have learned to be, and that we
go vote and come back quickly after we've voted on the second
vote. I apologize.
[Whereupon, from 3:11 p.m. until 3:44 p.m., the Committee
recessed.]
Chairman Rockefeller. The hearing will resume, with all
appropriate apologies to a very busy man.
If you gave an order, as DNI, to the CIA or the DIA or NSA
or somebody else, and they decided they wanted to ignore your
order in full or in part, what would you do?
Director McConnell. It would depend on the circumstances,
of course. If I considered it appropriate and reasonable, then
I would insist on getting it corrected, and that they would do
what I asked them to do. And there are a variety of ways to do
that. Fifteen agencies work for another cabinet officer, so one
option is to work it out with the cabinet officer. I always
have recourse to fall back to the President if necessary; it's
something I would not want to do and would make every effort to
work around, but that is the option that I could exhaust if I
had to.
Chairman Rockefeller. But you wouldn't have any lack of
confidence that what you saw to be what should be done would be
done?
Director McConnell. No, sir. One of the things that the
bill created was something called the JICC, and I don't
remember how it expands, but it's Joint Intelligence Community
Council. That's the cabinet officers and interestingly, I chair
it; I have cabinet rank but, as you know, I'm not a cabinet
officer. So this is the Secretary of Defense, Secretary of
State, Secretary of Treasury, Energy and so on. We meet three
times a year; we talk about priorities and so on. And since I'm
a member of the Principals Committee in the White House I am at
all of those decision bodies, so I know these people and we
work with them on a regular basis.
So I think, if it was something in extremis that had to be
done immediately, there's a path to get that done; if there's
something more of a policy nature, there's a path to get that
worked out. So it's not like having a department of
intelligence--I mean, for sure, that's clear hire-fire
directive authority. I have more of a coordinating role, but if
I felt strongly about it as a professional in the interest of
protecting the country, for whatever reason, I think I could
prevail in the debate and dialogue and always have the
President to go to if necessary.
Chairman Rockefeller. I want to come back to you on that.
Mr. Director, I want to ask a question which some will take
as political but I take as policy. The House has left; I'm
meeting with Chairman Reyes of the House Intelligence Committee
tomorrow morning at 10 because he's concerned, and I think that
John Conyers and Pat Leahy are going to meet, I'm not sure, but
I know I'm going to meet with him to figure out what's down the
path for FISA. There's no question the President had what he
wanted in our bill and he made it very clear on 1 day, and then
on the next day he proceeded to make it very clear that this
was a terrible thing that the House was doing and that
intelligence collection would stop and that they should be in
danger to terrorists from, you know, sort of from Sunday
morning.
So I want to ask this question: You and I both don't want
to see the Protect America Act expire on Saturday. You're clear
about that; we're all clear about that. I believe the best way
to handle the fact that the Senate sent the House a bill only a
few days before the expiration of the Protect America Act and
this, for the second time, does in fact give them reason to be
upset with us, pushed around by us.
I look at it differently. I think that it'd be great if we
agreed on a short-term extension, but that isn't going to
happen. Be that as it may, I believe it would be responsible
for us to help the American people--and I'm doing this hoping
that people will be listening--understand what the government's
anti-terrorism capabilities will be in the days ahead.
In other words, if the Protect America Act is expiring on
Saturday night, the natural inclination is to feel that that's
the end of collection and so Usama, when are you coming. Isn't
it true that the intelligence collection gap, which was
discussed a great deal at the end of last July, you described
that last summer with respect to the coverage of international
terrorists, has been closed?
Director McConnell. We've significantly improved our
posture since last July, yes, sir, because of the Act that you
all passed last August, the Protect America Act.
Chairman Rockefeller. Right, right.
Isn't it true that the targeting and collection of
communications of foreign terrorists now underway, pursuant to
the Protect America Act, will continue even after the sunset of
the Protect America Act?
Director McConnell. The provisions of the bill allow us,
once we had submitted to the FISA court the procedures and so
on were approved and we are loaded--from the date that's
approved we get a year. So at some level the collection will go
forward if it, in fact, expires on Saturday.
But now, that said, it's very important that I highlight
for this Committee what else happened, what else. One, we lose
the ability to compel the carriers to help us; two, there is no
liability protection for the carriers, therefore they're
thinking twice about helping us, making it much more difficult;
and three, this is a very dynamic situation. While we may have
something on some key targets that we're working, recruitment,
training, different names, different personalities will pop up.
Under the Protect America Act, that was manageable. So if
it expires, that new dynamic would put us back in a position
under the old FISA legislation, in which we would have to
satisfy a probable cause standard if collection were obtained
in this country, meaning a wire in United States.
So there is some level of protection but it's not where we
need to be. One, we don't have the carriers willingly
participating with us and a way to compel them, and it's a
pretty dynamic situation.
Chairman Rockefeller. Yes, but there the bulk part of the
answer is that intelligence would continue to be collected----
Director McConnell. What is pre-loaded.
Chairman Rockefeller [continuing]. --With worries,
legitimate worries on your part about the withdrawal or
whatever it might be.
Director McConnell. Yes, sir. What's pre-loaded and for
where we still have continuing cooperation of the private
sector.
Chairman Rockefeller. Right.
Isn't it true that no vital intelligence collection now
going on under the authority of the Protect America Act will be
shut off on Saturday?
Director McConnell. It would not be turned off. The issue
becomes compelling--private sector cooperation and then the
things that change, yes sir, that's correct. The way you stated
it is correct.
Chairman Rockefeller. Didn't the Congress specifically
provide the Protect America Act authorizations continue in
effect until their expiration?
Director McConnell. The way that you've framed it is true,
but my response is also true. I mean, there is some provision
for carryover but it has----
Chairman Rockefeller. I understand.
Director McConnell. It has issues, yes sir.
Chairman Rockefeller. And it is also not true that if we
come to August, which is when it technically would expire, that
there are relatively easy ways for that to be continued if we
have not worked out----
Director McConnell. No, sir, I wouldn't agree with that.
Chairman Rockefeller. You would not agree with that.
Director McConnell. I wouldn't, and the reason is we'd
find ourselves in a situation that we found ourselves last
July. Remember when this was returned to the FISA court in
January 1907, the initial response on the FISA court, we had
fairly broad capability to do what we needed to do. But as
subsequent judges looked at the situation and interpreted the
words in the law going back to 1978, over time capability was
subtracted from us and so, when we went into July 1907, we had
lost about two-thirds of our capability.
Chairman Rockefeller. Right, last year.
Director McConnell. Last year. So my point is, going into
the way you framed your question, if we got to July or to
August 2008 and the things we on coverage under the Protect
America Act expire, we would be back in that same situation.
Chairman Rockefeller. I apologize to my colleagues but
I've got to ask this last question.
If you have any uncertainties about this--and you do and I
do--would it not have made sense for the President, in that
there were reasons that we jammed the House because we were
clogged in the Senate--we're not able to operate on amendments
for a number of days--the House has been through this
experience before and they don't like it and they're angry
about it and you can see that in the results of the extension
vote last night, that an extension of the Protect America Act,
in order to allow these things to work out, which they surely
would have been, would have been a good idea?
Director McConnell. Sir, when I went through this
experience last summer one of your Members quoted that in the
political context, I was a little over my head. I admit that
was absolutely correct. This is a political process; I am a
professional officer with professional responsibilities. So
when I'm advising my committee, both committees, anyone that'll
listen on the Hill or in the executive branch, I will advise on
our intelligence condition. Now, this is a political process
and so all I can do is tell you that if we extend the Act or
the Act expires we're at a disadvantage. And so how it's worked
out in the political process, that's going to be to those of
you who are elected to those positions.
Chairman Rockefeller. Well, yes, it will be. And I thank
you very much, and Senator Bond.
Vice Chairman Bond. Thank you, Mr. Chairman. I will offer
a political suggestion and not ask you to comment since you are
a professional officer.
The House passed a bill. It was very different from our
bill; it was clear that the President said he would not sign it
because you said it would not work. There is nothing in the
rules of the House or any other body that prevent them from
looking at that, understanding what's coming. They knew what we
reported out in October; they knew that was the form that they
would be dealing with in the House. So it is not a question of
when we got it there so much as the inability of the House to
deal with it. And I'll just leave that out there for no
comment.
I do want to ask you one thing on which you can comment and
I think the important thing--and I appreciated the Chairman's
question. The key point that you brought out was that, without
the power to compel, without protection or retroactive
protection, the carriers which may be involved in this program
realize that they are suffering serious threats to their
business livelihood and perhaps even their facilities and
personnel if we don't give them retroactive immunity for the
work that they've done. And thus, it is my assumption that
general counsels of the carriers would be telling you, you show
us a court order or we're not going to cooperate on anything
which is not covered by a court order. Is that a fair
assumption?
Director McConnell. Sir, it is fair and I would take it a
step further. This has to be willing relationship, partnership,
and so where we find ourselves now, even with a court order,
some are saying we'll take it to court to verify.
And what I want to highlight to you is for us to do this
job it requires this willing cooperation. And if you think
about this technology area, the United States industry
dominates it; it's a strategic advantage for us. And so we're
putting ourselves in a position that we can't capitalize on it
and I would suggest even perhaps putting it at risk.
What do I mean by that? It's very easy for competition in a
foreign country to point to a company here and say you're being
sued for spying on its citizens or whatever. Even if those
allegations are totally out of order it could damage your
brand. And so with Sarbanes-Oxley, fiduciary responsibility to
shareholders and so on, we've put these companies in a position
where they feel like they're being punished for trying to help.
So that's the mitigation that we've got to get through to get
this protection for them.
Vice Chairman Bond. Thank you for that explanation, Mr.
Director. This hearing is one I've wanted to have for a long
time, and I hate to be taking up questions that are of more
immediate import, but I found the debate yesterday on the
floor, and particularly the news coverage of it, somewhat
troubling. The floor adopted the intel authorization bill,
approved in conference with what I consider to be one very bad
provision requiring that the CIA be limited only to those
techniques approved in the Army field manual.
I'd ask you to comment on that in a second, but I want to
ask you to address specifically some of the charges and
allegations that I think were either badly misinformed or
irresponsible, that we heard on the floor and that were covered
in the media. I spoke today with an international broadcast
group asking me questions to be fed back into the Middle East.
They picked up statements that were made on the floor that I
believe to be absolutely false.
So first, I would like to ask you, the eight prohibited
techniques that the Army field manual specifically prohibits,
they are repugnant; I believe they probably violate treaty
obligations. I want to know whether there is any intent or
whether there's any chance the CIA would use those or use
torture, or use waterboarding.
I believe that the argument is appropriately separate from
the discussion we heard on the floor, saying this bill outlaws
torture, outlaws waterboarding. I do not believe that we need
any more legislation. I believe that is outlawed; I believe it
is not used. I would like your comments specifically on that
and your comments on what would happen to the CIA's
interrogation of high-value detainees were they to be limited
to the unclassified and thus published techniques in the Army
field manual.
Two-part question.
Director McConnell. Sir, let me define sort of the
boundaries of law as this imaginary box I'm outlining with my
hands. That box is a result of the American political process;
it defines our rules, that's our law. The Army field manual in
the context of this box is a small circle in the middle of it.
It's designed for a specific purpose, for men in uniform,
generally younger, less experienced and less trained, for a
specific purpose. So the question becomes, do you limit the CIA
and its interrogation program to that small circle?
Now, the President stated what his intentions are, but the
question is what's inside that box and is it lawful. If it's
lawful as determined by the American political process, then
CIA would use those lawful techniques in certain prescribed
circumstances.
Now, as you've alluded to there are enhanced interrogation
techniques currently; waterboarding is not included in that. If
it were ever decided, for any reason, that waterboarding should
be included in that, there's a process to make that
determination, to determine if it's legal. The law has changed
since waterboarding was last used some 5 years ago, so I don't
know if I'm answering your question but it's----
Vice Chairman Bond. The eight techniques that are
specifically prohibited in the Army field manual, burning and
electric shocks, those----
Director McConnell. Those clearly are illegal and are not
appropriate for anyone, to include the CIA certainly. The ones
that are specifically--the things that you just mentioned, yes
sir.
Vice Chairman Bond. And the final question was what would
happen to the CIA interrogation program if they were limited to
that small circle in the big box of permissible techniques?
Director McConnell. It could not be as effective as they
have been in certain circumstances, and what I would describe
as--it's a point in time. When those techniques were used, we
knew little about an organization that had just attacked the
World Trade Centers and we had captured some hardened
terrorists, and so there were some interrogation techniques
used that resulted in useful information.
So is that something that's exercised every day on anyone
that's captured? No. Would it be done today the way it was done
back then? Probably not. One of the main reasons is we know so
much more. It's very easy to have an interrogation if you have
lots of answers that you can use to test and probe and
establish a relationship. Anyone would prefer a non-
confrontational approach if possible, but still what's in the
box, so long as it's not torture as defined in the American
political process as being legal, then the CIA would be capable
of using some of those techniques.
Vice Chairman Bond. Thank you.
Chairman Rockefeller. I would like to say to my colleagues
that the hearing is not about the question I asked or the
questions the Vice Chairman asked, although they have their
interest, but it's about the condition and the authorities and
the ability to maneuver and to lead of the Director of National
Intelligence in a way that is most efficacious. So I would ask
that questions would reflect on that matter, and Senator
Whitehouse is next.
Senator Whitehouse. Thank you.
Admiral, first let me ask you to comment on this assertion,
if you could tell me if it's true or false: Your surveillance
of anyone affiliated with al-Qa'ida or any organization
affiliated with al-Qa'ida, or any person affiliated with any
organization affiliated with al-Qa'ida, will continue unimpeded
through any period in which the so-called Protect America Act
is not in effect, at least until August of this year. Is that
correct?
Director McConnell. I don't think that's correct, sir, but
let me ask for some legal help. Let me tell you my
understanding. We have certain procedures that are sort of
loaded, been approved by the court and so on. In a dynamic
situation, if there was someone outside that, I----
Senator Whitehouse. Someone outside al-Qa'ida or an
organization affiliated with al-Qa'ida?
Director McConnell. I'm using known to us or outside a
specific list of identifiers or that sort of thing. I think if
the Protect America Act expires it would put us back in a
situation of probable cause if the collection was done in the
United States on a wire. And I think that's the answer but let
me get some----
Senator Whitehouse. Unless they were affiliated.
Director McConnell. No, if it's done--if PAA expires and
it's done in this country, it would require you to have a
warrant, I believe. But let me get someone who actually knows
the answer. Ben, are you here?
Mr. Powell. To the extent someone is covered under an
existing authorization--an authorization for an acquisition
signed by the Attorney General and the Director of National
Intelligence and that has been issued, those continue for up to
1 year even beyond the expiration of the Protect America Act.
Directives issued under those authorizations may also continue
under those also.
Senator Whitehouse. And those authorizations may include
organizational authorizations so that new individuals who are
affiliated with the organization can nevertheless be
surveilled, correct?
Mr. Powell. We would certainly take that position, Senator.
What we could not do is the issues that are raised in the
Attorney General and DNI's letter are if we need to modify or
issue new directives pursuant to those authorizations to
different electronic communication service providers or
different methods than what are covered in existing directives,
or modify those authorizations and directives, which we have
done over the past 6 months, then, there's also a substantial
question in the wording of the Act--although we hope we have
good arguments but it may be litigated--of whether the
liability protection continues on because that is in the
wording of what actually continues on. So as the AG laid out
there's uncertainty in all those different areas.
Senator Whitehouse. But not as to your ability to surveil
people who are affiliated with al-Qa'ida.
Mr. Powell. Certainly the authorization, if it covers the
authorization for the acquisition, then it would continue. It's
the implementation of it that creates concern with the private
sector.
Director McConnell. Also, there's an issue of compelling.
If you have assistance and it expires, can you now compel? That
could be challenged. And so our worry is we're much better with
certainty so we know what the rules are; if it changes, you
never know how it might be ruled.
Senator Whitehouse. There was an incident recently in
which the Director of National Intelligence, then John
Negroponte, instructed the head of the CIA, then Porter Goss,
that CIA interrogation tapes were not to be destroyed. As it
turned out, they were in fact destroyed.
Is there anything out of that circumstance that bears on
the authority of the DNI versus the Director of the CIA? Do we
need to strengthen the authority of the DNI so that when the
DNI makes a statement like that to a CIA Director it becomes
clear that it is, in fact, a decision that the agency must
comply with? There's a command gap between DNI Negroponte
making that statement and the action that took place in
contravention of the statement, and where is that command gap.
Director McConnell. It's being investigated now and I
haven't talked to Ambassador Negroponte, and I don't know all
the circumstances. But if it were an order and if it were
violated--two big ifs--then I would agree with the way you
outlined it. But what I've heard just in people talking about
it, it wasn't a direct order, it was an opinion; I don't know.
But if the way you described it, it was an order and it----
Senator Whitehouse. Do you not see it as part of your DNI
authority?
Director McConnell. I do, indeed. If it was an order and
violated, then you'd have to deal with that situation.
Senator Whitehouse. One last, just quick reaction. You
said that the Army field manual was designed for young men,
generally less experienced, less well-trained.
Director McConnell. In uniform.
Senator Whitehouse. In uniform.
I frankly don't think that's true, and I would challenge it
and urge you to maybe reconsider it because what I understand
is that the military has very significant and very experienced
intelligence operatives. Men who I've spoken to have 22 years
of interrogation experience. They run military intelligence and
interrogation schools of 10-, 18-weeks' duration; they have, I
guess you'd call it, sort of graduate-level courses. This is a
matter--you have, you know, special-ops individuals, you have
DIA folks. You have some of the very best intelligence and
interrogation operators in the country in the United States
military, and they are the ones who are telling us that they
work very well within the confines of the Army field manual.
And I think it's fair to have the discussion as to whether
or not, at that level, the Army field manual is the right
restriction or not.
What is not fair, I don't think, is to take the military
interrogation and intelligence operation and denigrate it, as
if it's a bunch of 18-year-olds running around who have got no
experience doing this and the Army field manual has to protect
them from their naivete and their ignorance because it's the
same field manual that applies to highly trained, highly
professional, highly experienced individuals, many of whom have
a lot more interrogation experience, it appears, than the folks
in the CIA.
Director McConnell. Sir, what you're referring to----
Chairman Rockefeller. Please react to that.
Director McConnell [continuing]. Is coercive techniques.
And if you ask the FBI their opinion--and we just did this
recently in a hearing up here--you get pretty much the same
answer the way you just described it. The way I think of the
Army field manual is primarily the lowest common denominator to
protect the Nation from what happened--the heinous behavior at
Abu Ghraib. So it is a course of action that was taken by this
body and the executive branch to agree to how we're going to do
that in the future, so that circle closed to be a smaller
circle.
What you say is true; they're very experienced people, but
now they live within that circle. The question is, do we want
to make the same circle apply to all parties, and that's the
question that you all have to wrestle with.
Chairman Rockefeller. I would say to my colleagues the
following: It may be that--and Senator Whitehouse did ask one
question which was directly on point of the purpose of this
hearing. It may be that my colleagues don't have an enormous
interest in the powers and the authorities of the Director of
National Intelligence and they wish to talk about other
matters, which are much more fun to talk about, but they were
not the point of this hearing; they were not the point of this
hearing. That's partly my fault, and that's partly the Vice
Chairman's point because we started out with two such matters.
But the point is, does he have the authority that he needs?
And if people feel that they are disinclined to engage in that
subject, then I of course will be very happy to hear about
that, but I'll be very disappointed, even to the point of maybe
adjourning the hearing. Senator Feingold.
Senator Feingold. Mr. Chairman, I would not allow that to
happen. My questions are exactly about the topic of this
hearing. But I want to first say how valuable your questions
were, and how important it was that you brought us to some
clarity on the issue of what really happens if the PAA expires.
Director McConnell. And I agree with that.
Senator Feingold. Which, by the way, I oppose, letting
that happen. And I also feel that way about Senator
Whitehouse's about the Army field manual. These things are
critical but I happen to find the topic of this hearing fun, as
you say, or important. And let me just say, a little over a
year ago, the Committee held another hearing on intelligence
reform in which ODNI testified to its ability to lift and
shift--``Lift and shift collection resources to address current
crises such as Darfur and Somalia.''
The problem, however, I think you might agree, is that
lifting and shifting almost inherently means that it doesn't
help us anticipate crises before they happen. It does not help
the intelligence community develop experience or expertise on
these threats, and it does not represent an ongoing commitment
to long-term challenges. In fact, the Deputy DNI for collection
acknowledged at our hearing that there is a ``need to get the
intelligence community back to what I grew up calling `global
reach.' We don't have that today.''
She further testified that with Congress' help, the
intelligence community can ``get back to a place where we can
do global reach and pay attention to places that are not
perhaps high on the list today.''
Mr. Chairman, that is what we should be doing, pushing the
intelligence community to allocate its resources in accordance
with our national security needs and providing the DNI the
authorities he needs to make that happen. And I'd ask that my
full statement be placed in the record, Mr. Chairman.
Chairman Rockefeller. And it will be.
[The prepared statement of Senator Feingold appears on page
28.]
Senator Feingold. Mr. Director, do you agree with the
statement in the most recent annual report of the U.S.
intelligence community that ``one challenge to improving the
coverage of emerging and strategic issues across the
intelligence community has been the diversion of resources to
current crisis support.''
Director McConnell. Certainly current crisis support takes
a disproportionate share, but let me just offer how we try to
mitigate that. We have a thing we call the national
intelligence priorities framework, and we make that dynamic.
Every 6 months we go through a process leading up to the
signature by the President, and the way we get to closure is
the cabinet officers sit and we take them through a dialogue.
What are we, the intelligence community, looking at, what are
we not looking at. And we have added some dynamics to that in
the last cycle because cabinet officers tend to focus on the
here and now.
And it was to get at your question. What about those areas
that we don't have as much focus on and how do we do that. So
they've engaged in a very positive way, so we're trying to get
back to addressing your question.
Senator Feingold. Well, I think with regard to that, last
year your office testified about its authorities to lift and
shift collection resources to address crises. Does what you
just said mean that the ODNI has moved beyond lift and shift to
ensure that sustained attention is paid to regions that are
traditionally underserved by our intelligence community, or is
it not a fair----
Director McConnell. No, that is fair. I personally don't
like the term ``lift and shift.'' That's crisis management in a
collection situation. But the whole nature of the priorities
framework, national intelligence priorities framework, was to
force focus on the areas that were not getting as much
attention.
And it's changed quite a bit, what we're looking at, how
we're doing it, and the resources we're dedicating to it.
Senator Feingold. Well, I think about this a lot,
especially in trips and my work in Africa with regard to the
Foreign Relations Committee. And last week you testified that,
``Kenya is likely to enter a period of increased social tension
and instability which could affect its willingness and ability
to cooperate with the United States on regional, diplomatic,
and counterterrorism matters.''
This is exactly the kind of strategic challenge to the
United States that we need to anticipate rather than just
respond to. It also demonstrates clearly how issues like
political repression and corruption, ethnic tensions and the
destabilizing pressures of poverty and marginalization directly
affect our national security.
So Mr. Director, what are you doing to direct collection
resources toward these sorts of issues, so that we don't find
ourselves unprepared for crises that directly threaten our
diplomatic and counterterrorism efforts. I mean, I just think
about how I went to Kenya so we can talk about Somalia and
Sudan and then, all of a sudden, we have this just extreme
political crisis in Kenya and what an impact it has on us as
well as on the Kenyan people.
Director McConnell. Part of the way we do this, as I
mentioned in my remarks about mission managers. A mission
manager took on a political context because if you have one,
then the Nation that it focuses or the region it focuses on
gets--there's a reaction. So what I'm looking at is how do I
get the benefits of mission management in the construct of how
we currently operate.
And as you know, we have National Intelligence Council,
which consists of National Intelligence Officers. Those are our
most senior officers in the community for a region. What I want
to do is empower them to work across the disciplines--HUMINT,
SIGINT, imagery, whatever--and get real focus. And then there
is a constituency for every region of the world, Department of
State, Defense, or wherever, and have active dialogue with them
to understand more their needs and so on.
And we're starting to have some traction. There's been
particular focus on Africa because of Kenya, because of Chad,
because of Somalia. So we're better--not where I would like to
be but we're better--and it's making us more sensitive in a
global context.
Senator Feingold. Thank you, Mr. Director. Thank you, Mr.
Chairman.
Chairman Rockefeller. Thank you, Senator Feingold, and
thank you for your interest in these matters which are
important.
Senator Wyden. Mr. Director, out of deference to the
Chairman I admire very much, I'm going to set aside questions
that I had planned to ask about the last couple of days, and
let me start then with respect on the authority question, just
in matters of fiscal responsibility.
What I've long been concerned about is that there's a habit
in the intelligence community of beginning these very large
acquisition programs, and nobody's really quite sure how to pay
for them down the road. I think you've been concerned about
this as well, and you've talked about a variety of strategies
that you've been interested in, including auditable financial
statements and a variety of things.
But what have you been able to accomplish thus far to make
sure that the intelligence community doesn't spend these huge
sums of money on these major acquisitions that are going to
later have to be canceled on the grounds that they're
unaffordable and in effect don't give you value for the dollar
that you're allocating?
Director McConnell. Yes, sir. Excellent question,
something I'm very concerned about and focused on. Let me
capture sort of three areas of interest with acquisition where
we get ourselves in trouble. The first is requirements creep.
We're going to design something, build something, whatever. And
then as we go through the process, everybody wants to add
another capability, another capability. So all of a sudden, it
becomes unaffordable. The schedule slips or we have a major
problem. So we have to do a better job in containing
requirements creep.
The second thing is we lost a generation of program
managers. When the dot boom occurred in the nineties, many of
the people with the skill sets that built large systems were
attracted to the private sector and they left. So we suffered
from an inadequate supply of professional program managers. So
we recognized that, and we're trying to rebuild that
capability.
Another part of it is having realistic cost estimating. The
idea is don't start something you can't afford. Now, if we can
do that--and we established the new deputy on our staff, deputy
for acquisition, someone experienced--more than 30 years in
industry--to work through these issues, and now hard decisions.
As you're aware, we had a program that was multibillion
dollars that was putting us in a position of being a one-point
failure. And so we took that on as a community. In my Executive
Committee I mentioned earlier, we took it to all of the parties
that had to make a decision and finally took it to the
President for a decision for coordination with the Hill.
Now, that I think gets us back into focusing in an area
looking at the architecture, what's affordable, how would you
manage it. We started a process we call ICA, Intelligence
Collection Architecture, that's to force us to look at the
discipline, the cost, and the schedule so that we will choose
things that are affordable in the best interest of the Nation.
So I feel like we're making progress. But one of the things
that I would ask your support on--currently your bill or the
bill for this office gave me authorities for streamlined
acquisition. The problem is, you didn't give me the authority
to delegate them to anybody that spends money. So while the DNI
and the Director of the Central Intelligence Agency have
special authorities to do special things--can take risks, can
go fast--and you gave it to me, it's only for my staff and not
for the rest of the community. I need that authority for the
rest of the community.
Senator Wyden. And I'm sympathetic to that. Let me ask you
about something that came up in an open hearing not long ago
that my constituents just were kind of slack-jawed when they
heard about it, and it goes to, again, the question of your
authorities with respect to the problem. At one of the open
hearings we had last fall, Willie Hulan, a senior FBI official,
acknowledged that a large number of FBI agents and analysts
don't have access to the Internet at their desk.
And Committee staff have found that there were similar
access problems existing for the FBI's top-secret system,
particularly for the offices overseas. You and I have talked
about technology in the past, and I know you have a great
interest in this. What can you do with your authorities to in
effect address something that I think just defies common sense?
Director McConnell. In this case, I can offer to help, and
we've done that. We've put technical people into the process to
help to think it through and do requirements and that sort of
thing. And I have some budget authority.
Now, it's much more clearly defined, understood, and in
action for the agencies that are in the Defense Department.
It's less clearly defined for agencies outside the Defense
Department. So that's something we recognize and we're working
through it.
And let me just make one other point so you capture this.
On the executive committee that we've established to run the
community, the Director of the FBI is now a member of that. He
participates actively and he is now benefiting from some of
this deliberative process. So I think that will make a
difference.
Senator Wyden. Thank you, Mr. Chairman.
Chairman Rockefeller. Thank you very much. I annoyed the
former owner of the meager territories of West Virginia, the
honorable senior Senator from West Virginia, by pointing out
that we're having more votes at 4:30 and that's not much time.
So now we have three more people who wish to speak and they're
probably not even going to get a full 5 minutes. So Senator
Feinstein----
Senator Warner. I also asked you to take judicial notice
that it's Valentine's night and some of us have some
responsibilities. [Laughter.]
Senator Feinstein. We're all in favor of that.
Senator Warner. I know your wife is expecting you for the
first time for dinner in a long time.
Director McConnell. That's exactly true, yes, sir.
Senator Feinstein. If I may, Admiral, in addition to what
Senator Wyden's point was and your response to it, are you
saying that you believe you have adequate budgetary authority
at this time?
We had a conversation about a year ago. It was a personal
conversation. And you said you hoped to work this out
internally. You told us earlier about some of the ways you
would work it out. And so I guess my question to you is,
without specific additional budgetary authority, do you think
you have what it takes to do what is necessary to correct many
of the big problems within the intelligence community?
Director McConnell. Ma'am, partially. And let me tell you
exactly what the issue is. The law says that if it's an
acquisition by a defense agency, which is where most of the
acquisition is done, and it's funded by the National
Intelligence Program, then I must share jointly with the
Department of Defense what's called MDA, Milestone Decision
Authority.
It is silent on any program where the Department of Defense
is also contributing money, military-intelligence program, into
a major buy. And what's happened over the last, say, six or 8
years is major systems have moved all into defense, all into
the national program or a hybrid, where they are split-funded.
So it's mixed. There's been a lot of to-ing and fro-ing between
staffs about we'll use these procedures or those procedures.
The poor guy is trying to buy things. We're getting double
reviewed and two sets of procedures and so on.
So I sat down with Secretary Gates and said, this is
untenable. He's agreed to a process. Where we are now is in
interagency coordination for the directive. This is
interagency; it will go to the principals within 2 weeks, and
what we'll do is make recommendations to the President. So we
hope to have this clearly defined and resolved. I would say
it's scheduled for signature by the 15th of April. If it
doesn't happen, then I have an obligation to come back to tell
you it didn't happen and I need some help.
Senator Feinstein. Okay, good, because I think it's our
intent that you have that authority, at least it certainly is
mine, so I want to help with that any way I can.
One of my concerns has been the growth of contractors
within the agency and there's been difficulty in getting any
clear understanding of how many contractors are really within
the intelligence community. If you exclude the construction of
satellites, which is necessarily done by contractors, how many
contractors are there in the intelligence community?
Director McConnell. Ma'am, I think--well, two things.
We've done a report, so we can make that available to you, and
I think it's a classified number, but let me just verify that.
It's a classified number but it breaks it out----
Senator Feinstein. I'll bet it's huge.
Director McConnell. It's a large number.
Senator Feinstein. Is it? Go ahead.
Director McConnell. And we'll just bring it up to let you
look at it and then you can ask detailed questions on why this
and why that, and so on.
Senator Feinstein. All right. Now, your office is now up
to 1,750 people. I gather 40 percent of that is the
Counterterrorism Center, which you inherited, but the remaining
60 percent is not. Is that a stable size at this point or is it
going to continue to expand?
Director McConnell. Ma'am, what I would like to do is cap
my office at a level like the Joint Chiefs of Staff, just cap
it at a reasonable place, whatever that is, and I'd like to get
help from you to do that.
Now, that said, this is what I need you to also help me do.
The Joint Chiefs of Staff is capped; the services or our
defense agencies, can grow or contract depending on the
mission. So I need to have the Counterterrorism Center, the
Counterproliferation Center, the Counterintelligence Executive;
you know, all these little things, they need to be treated as
second echelon command so they can do whatever they need to do.
And I've got a staff that's capped at a set level. You can see
it; we can manage it and we can live within our cap. That'll
let me manage it, because I don't have a profit motive like I
would have in industry, so I'm looking for a way to force us to
deal with a given size, just the way the Joint Chiefs work.
Senator Feinstein. Let me just say I think that would be
very good and very positive because I think it's kind of Never-
Never Land for you the way it is now, so that would be very
useful, thank you.
Chairman Rockefeller. Thank you, Senator Feinstein.
Senator Feinstein. Notice it's only a yellow line.
Chairman Rockefeller. I know. You have thirteen seconds
left.
Senator Snowe, and then the most esteemed Senator Warner.
And our votes start in 3 minutes.
Senator Snowe. Okay, I'll be very quick, Mr. Chairman.
Welcome, Mr. Director, I appreciate you being here today, and
your straightforwardness and forthrightness and I know you've
faced considerable challenges as you assumed your position.
I was just curious. In reading your statement, you
mentioned that you had focused the DNI's role as the integrator
of the intelligence community. And I'd like to have you clarify
that in terms of exactly what are the natures and dimensions of
your power, because when this Act became law 4 years ago, the
President was referring to it as a single, unified enterprise
for the entire intelligence community. It was certainly
understood that you would have unified command over the
intelligence agency. So how do you view your role now as an
integrator as opposed to a director, one who obviously should
be taking charge of the responsibilities within those
agencies--not day-to-day control but certainly being able to
direct. I know you've chosen a middle ground in all of this and
yet, how does that dovetail with the original intent of the
law?
Director McConnell. Ma'am, as you know, if you're director
you have line authority, and there are 16 agencies, and, of the
16, 15 of them work for another cabinet officer. So as a
practical matter, I'm in a situation where it's someone in a
department with a different set of personnel standards and a
different set of hiring and firing policies and so on. So it's
not that I can give direct orders to someone else's
organization. There's a cabinet secretary between me and the
process.
So what we've worked out is to operate in a sense as a
unified community, and we use this executive board to do that,
and we have the cooperation so far of the cabinet officers. The
only way I could see to change that dynamic significantly would
be to create a Department of Intelligence, and then it would be
operated like other departments where you have line authority.
So right now there is some level of cooperation and integration
and management skills that are involved in keeping this
community unified.
Senator Snowe. Do you think that is consistent with the
original Act?
Director McConnell. Ma'am, those are the words from the
original Act. I mean, you well know the debate was the
Department of Intelligence or a coordinator, although it's
labeled director, across the community. And the words in the
Act left it, the position, without authority for line-direction
capability.
Now, in this interagency process we're going through now,
it's been recognized. We're trying to get an executive order
that will help us make this a stronger position.
Senator Snowe. I guess it gets back to the original
question and premise of whether or not you're seeking
additional statutory authority.
Director McConnell. We have to go through this executive
order process first.----
Senator Snowe. And then you're going to because I think
it's absolutely critical. I mean, you can go back to this point
about time is of the essence because it has been 4 years and I
think that the time has come to make a decision so we can
create the culture that's still under way, which is also
disturbing about creating a culture of collaboration; you know,
the need to share that information.
And that obviously still is not being truly embedded in the
culture and that's disturbing, and so we need to move to a
point. I think that we should have a timeline and if we have to
change the law then I think we need to do that in order to make
sure it happens. Otherwise we're going to be in the same
situation, and who knows if we don't understand the nature of
the consequences as a result of our inability to do that.
And so it's clear that the Director does need strong
authority, and the question is whether or not we should be
prepared to undertake that. And frankly, I think it has to
happen in order to ensure--I don't think we view the role of
Director as being just an integrator but also a unifier, and
this issue you're dealing within the limitations of the law----
Director McConnell. Right, that's the issue.
Senator Snowe [continuing]. And that's what we have to
recognize, our responsibilities. I think you're doing
everything you can within your prerogatives, and we appreciate
what you are doing. Thank you.
Director McConnell. Thank you, ma'am.
Chairman Rockefeller. The former Secretary of the Navy.
Senator Warner. Thank you, Mr. Chairman. I thank
colleagues for shortening the questions.
I'm a strong proponent, as you well know and perhaps you've
followed some of our debates on the floor. I've joined my two
colleagues on this FISA issue, but I think we're losing sight
of one aspect of the urgency of getting this into a final form
of legislation and on the President's desk, and that is that
part of your collection under FISA goes, either directly or
indirectly, or both, right down to the tactical level and
operating level of the United States military wherever they are
in the world, namely in Afghanistan and in Iraq. Am I not
correct on that?
Director McConnell. Yes, sir, you're absolutely correct.
Senator Warner. Well, we've got to drive that point home,
that the very men and women of the armed forces, who we all
adore and love here at home--I've never seen greater support
for the uniformed people than there is today--they may not be
entirely sympathetic with some of the goals that were staked
out in these two campaigns but they're behind their people,
that's for sure, and the safety of these people, their ability
to operate and perform the missions that they're performing
today, are dependent on FISA collection.
Director McConnell. Yes, sir. The change of the global
communications system has made what you said exactly correct.
There was a time when it was mostly tactical, push-to-talk,
line-of-sight sort of things, but today it's not unusual for
communications to move around the globe and back to the
battlefield, and our ability to capture that information for
direct tactical support can be impacted.
Senator Warner. Well, I mentioned that on the floor of the
Senate yesterday, in a speech that I gave on this question.
I've listened to my good friend over here, the Senator from
Rhode Island, question you about your authority and the orders
that were given and were they followed, but let me try and
recast the question. And that is--I think you may have answered
it in the context of my good friend here from Maine--you don't
have that line authority that we somehow felt that we were
intending to give you.
Director McConnell. No, sir, I do not.
Senator Warner. And, for instance, if there were tapes
today in the possession of one of these numerous agencies that
you have coordinate responsibility over, you can't order them
not to destroy them.
Director McConnell. In one case I could, CIA; I have line
authority there. But in the others there's a Cabinet secretary
that could have a different----
Senator Warner. Well, you do have that absolute line
authority right down to all entities in the Central
Intelligence Agency.
Director McConnell. Central Intelligence Agency, yes sir.
But that's the only one.
Senator Warner. That's the old DO as well as the----
Director McConnell. No, they would want to negotiate. I
mean, as you know this is a strong, proud organization. But in
the final analysis in the law, I have that authority, yes sir.
Senator Warner. Well, that clarifies that, and I thank the
chair for the cooperation.
Chairman Rockefeller. No, I thank the senior Senator from
Virginia, our former oppressors----
Senator Warner. I offered to you to unite the two states
if you want to; I mean, I'm retiring, a vacancy occurs, and
therefore you can keep your slot. [Laughter.]
Chairman Rockefeller. Well, we've got a couple of counties
that'd probably like to come over and join you.
That being said, Mr. Director, you have a way about you
with words and diplomacy that you give us a lot more
information, I think, quite knowingly, than you lay out on the
record to be picked up in a broader way, and I think we want to
be responsive to you. You laid out some major issues today. You
have to have authority, you have to have a hammer, and it's
delicate, and large agencies are terribly difficult to get to
change.
But in any event, with a few exceptions, I thought this was
an extremely valuable hearing and I greatly appreciate the fact
that you came, and I less appreciate the fact that we have to
go vote.
Director McConnell. Thank you, sir.
Chairman Rockefeller. The meeting is adjourned.
[Whereupon, at 4:38 p.m., the Committee adjourned.]