[Senate Report 110-75]
[From the U.S. Government Printing Office]
Calendar No. 181
110th Congress Report
SENATE
1st Session 110-75
======================================================================
INTELLIGENCE AUTHORIZATION ACT FOR FISCAL YEAR 2008
_______
May 31, 2007.--Ordered to be printed
Filed, under authority of the order of the Senate of May 25, 2007
_______
Mr. Rockefeller, from the Select Committee on Intelligence, submitted
the following
R E P O R T
together with
ADDITIONAL VIEWS
[To accompany S. 1538]
The Select Committee on Intelligence, having considered an
original bill (S. 1538) to authorize appropriations for fiscal
year 2008 for the intelligence and intelligence-related
activities of the United States Government, the Intelligence
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 2008 that is being reported by the Committee. Following
that analysis and explanation, the report sets forth Committee
comments on other matters. The report also includes additional
views offered by Members of the Committee.
TITLE I--INTELLIGENCE ACTIVITIES
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 2008.
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 2008 are contained in a classified Schedule of
Authorizations. The Schedule of Authorizations shall be made
available to the Committees on Appropriations of the Senate and
House of Representatives and to the President.
Although prior intelligence authorization acts have not
defined Intelligence Community (IC) personnel limits in terms
of full-time equivalent positions, the Committee has determined
it would be consistent with general governmental practice to do
so. This will enable IC elements to count two half-time
employees as holding the equivalent of one full-time position,
rather than counting them as two employees against a ceiling.
In the Administration's request for legislative authorities
as part of the Intelligence Authorization Act for Fiscal Year
2008, the Director of National Intelligence (DNI) has asked for
broad authority to manage the IC within the limits of available
funds but without legislatively-fixed civilian end-strength
personnel limits. The DNI's submission to the Committee states
that statutory ceilings have led to increased use of
contractors and have hindered the IC's civilian joint duty,
student employment, and National Intelligence Reserve Corps
programs. The Committee will continue to study this recently
received proposal. In the meantime, the flexibility provided in
this section by the use of full-time equivalents as a measure
of personnel levels and the additional flexibility provided in
Section 103 should help to address the concerns raised by the
DNI.
Section 103. Personnel level adjustments
Section 103(a) provides that the DNI, with approval of the
Director of the Office of Management and Budget (OMB), may
authorize employment of civilian personnel in fiscal year 2008
in excess of the number of authorized full-time equivalent
positions by an amount not exceeding 5 percent (rather than 2
percent in prior law) of the total limit applicable to each IC
element under Section 102. The DNI may do so only if necessary
to the performance of important intelligence functions. Any
exercise of this authority must be reported in advance to the
congressional intelligence committees.
Section 103(b) provides additional flexibility when the
heads of IC elements determine that work currently performed by
contractors should be performed by government employees. It
does so by authorizing the DNI, with OMB's approval, to
authorize employment of additional full-time equivalent
personnel in a number equal to the number of contractor
employees currently performing that work. Any exercise of this
authority also must be reported in advance to the congressional
intelligence committees.
Any exercise of the personnel level flexibility should be
implemented in accordance with a plan that includes adequate
support for personnel. This matter is addressed in Section 315.
Section 104. Intelligence Community Management Account
Section 104 authorizes appropriations for the Intelligence
Community Management Account (CMA) of the DNI and sets the
full-time equivalent personnel end-strength for the elements
within the CMA for fiscal year 2008.
Subsection (a) authorizes appropriations of $715,076,000
for fiscal year 2008 for the activities of the CMA. Subsection
(a) also authorizes funds identified for advanced research and
development to remain available for two years. Subsection (b)
authorizes 1,768 full-time equivalent personnel for elements
within the CMA for fiscal year 2008 and provides that such
personnel may be permanent employees of a CMA element 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 CMA. Subsection
(d) authorizes additional appropriations and personnel for the
CMA as specified in the classified Schedule of Authorizations
and permits the additional funding for research and development
to remain available through September 30, 2009.
Section 105. Incorporation of reporting requirements
Section 105 incorporates into the Act each requirement to
submit a report to the congressional intelligence committees
contained in the joint explanatory statement to accompany the
conference report or in the classified annex accompanying the
conference report.
Section 106. Development and acquisition program
Section 106 requires the DNI to transfer not less than an
amount specified in the classified annex to the Office of the
DNI (ODNI) to fund the development and acquisition of a program
specified in the classified annex. The Committee supports
immediate development and acquisition of an innovative program.
Further details concerning this matter are provided in the
classified annex.
Section 107. Availability to public of certain intelligence funding
information
Section 107 requires the President to disclose to the
public the aggregate amount of funds requested for the National
Intelligence Program for each fiscal year. It also requires
Congress to disclose to the public the aggregate amount
authorized to be appropriated and the aggregate amount
appropriated for the National Intelligence Program.
TITLE II--CENTRAL INTELLIGENCE AGENCY RETIREMENT AND DISABILITY SYSTEM
Section 201. Authorization of appropriations
Section 201 authorizes appropriations in the amount of
$262,500,000 for fiscal year 2008 for the Central Intelligence
Agency (CIA) Retirement and Disability Fund.
Section 202. Technical modification to mandatory retirement provision
of CIA 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--INTELLIGENCE AND GENERAL INTELLIGENCE COMMUNITY 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. Restriction on conduct of intelligence activities
Section 302 provides that the authorization of
appropriations by the Act shall not be deemed to constitute
authority for the conduct of any intelligence activity that is
not otherwise authorized by the Constitution or laws of the
United States.
Section 303. Clarification of definition of intelligence community
under the National Security Act of 1947
Section 303 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 304. Delegation of authority for travel on common carriers for
intelligence collection personnel
Section 116 of the National Security Act of 1947 (50 U.S.C.
404k) allows the DNI to authorize travel on any common carrier
when it is consistent with IC mission requirements or, more
specifically, is required for cover purposes, operational
needs, or other exceptional circumstances. As presently
written, the DNI may only delegate this authority to the
Principal Deputy DNI (PDDNI) or, with respect to CIA employees,
to the Director of the CIA.
Section 304 provides that the DNI may delegate the
authority in Section 116 of the National Security Act of 1947
to the head of any IC element. This expansion is consistent
with the view of the Committee that the DNI should be able to
delegate authority throughout the IC when such delegation
serves the overall interests of the IC.
Section 304 also provides that the head of an IC element to
which travel authority has been delegated is also empowered to
delegate it to senior officials of the element as specified in
guidelines issued by the DNI. This allows for administrative
flexibility consistent with the guidance of the DNI for the
entire IC. To facilitate oversight, the DNI shall submit the
guidelines to the congressional intelligence committees.
Section 305. Modification of availability of funds for different
intelligence activities
Section 305 conforms the text of Section 504(a)(3)(B) of
the National Security Act of 1947 (50 U.S.C. 414(a)(3)(B)
(governing the funding of intelligence activities)) with the
text of Section 102A(d)(5)(A)(ii) of that Act (50 U.S.C. 403-
1(d)(5)(A)(ii)), as amended by Section 1011(a) of the
Intelligence Reform and Terrorism Prevention Act of 2004 (Pub.
L. No. 108-458 (Dec. 17, 2004)) (governing the transfer and
reprogramming by the DNI of certain intelligence funding).
The amendment replaces the ``unforeseen requirements''
standard in Section 504(a)(3)(B) with a more flexible standard
to govern reprogrammings and transfers of funds authorized for
a different intelligence or intelligence-related activity.
Under the new standard, a reprogramming or transfer is
authorized if, in addition to the other requirements of Section
504(a)(3), the new use of funds would ``support an emergent
need, improve program effectiveness, or increase efficiency.''
This modification brings the standard for reprogrammings or
transfers of intelligence funding into conformity with the
standards applicable to reprogrammings and transfers under
Section 102A of the National Security Act of 1947. The
modification preserves congressional oversight of proposed
reprogrammings and transfers while enhancing the IC's ability
to carry out missions and functions vital to national security.
Section 306. Increase in penalties for disclosure of undercover
intelligence officers and agents
Section 306 amends Section 601 of the National Security Act
of 1947 (50 U.S.C. 421) to increase the criminal penalties for
individuals with authorized access to classified information
who intentionally disclose any information identifying a covert
agent, if those individuals know that the United States is
taking affirmative measures to conceal the covert agent's
intelligence relationship to the United States. Currently, the
maximum sentence for disclosure by someone who has had
``authorized access to classified information that identifies a
covert agent'' is 10 years. Subsection (a) increases that
maximum sentence to 15 years. Currently, the maximum sentence
for disclosure by someone who ``as a result of having
authorized access to classified information, learns of the
identity of a covert agent'' is 5 years. Subsection (b)
increases that maximum sentence to 10 years.
Section 307. Extension to intelligence community of authority to delete
information about receipt and disposition of foreign gifts and
decorations
Current law (5 U.S.C. 7342) requires that certain federal
``employees''--a term that generally applies to all IC
officials and personnel and certain contractors, spouses,
dependents, and others--file reports with their employing
agency regarding receipt of gifts or decorations from foreign
governments. Following compilation of these reports, the
employing agency is required to file annually with the
Secretary of State detailed information about the receipt of
foreign gifts and decorations by its employees, including the
source of the gift. The Secretary of State is required to
publish a comprehensive list of the agency reports in the
Federal Register.
With respect to IC activities, public disclosure of gifts
or decorations in the Federal Register has the potential to
compromise intelligence sources (e.g., confirmation of an
intelligence relationship with a foreign government) and could
undermine national security. Recognizing this concern, the
Director of Central Intelligence (DCI) was granted a limited
exemption from reporting certain information about such foreign
gifts or decorations where the publication of the information
could adversely affect United States intelligence sources.
Section 1079 of the Intelligence Reform and Terrorism
Prevention Act of 2004, Pub. L. No. 108-458 (Dec. 17, 2004)
(``Intelligence Reform Act''), extended a similar exemption to
the DNI in addition to applying the existing exemption to the
CIA Director.
Section 307 provides to the heads of each IC element the
same limited exemption from specified public reporting
requirements that is currently authorized for the DNI and CIA
Director. The national security concerns that prompt those
exemptions apply equally to other IC elements. Section 307
mandates that the information not provided to the Secretary of
State be provided to the DNI to ensure continued independent
oversight of the receipt by IC personnel of foreign gifts or
decorations.
Section 308. Public Interest Declassification Board
As described in its report on activities in the 109th
Congress (S. Rep. No. 110-57, at p. 26), in September 2006, the
Committee released two reports on prewar intelligence regarding
Iraq. In the introduction to one, the Committee expressed
disagreement with the IC's decision to classify portions of the
report. Members of the Committee wrote to the then recently
constituted Public Interest Declassification Board to request
that it review the material and make recommendations about its
classification. The Board responded that it might not be able
to do so without White House authorization. In December 2006,
the Board wrote to Congress to request that the statute
establishing the Board be clarified to enable it to begin,
without White House approval, a declassification review
requested by Congress.
Section 308 authorizes the Public Interest Declassification
Board, upon receiving a congressional request, to conduct a
review and make recommendations regardless of whether the
review is requested by the President. It further provides that
any recommendations submitted by the Board to the President
shall also be submitted to the chairman and ranking minority
member of the requesting committee. Finally, it extends the
life of the Board for four years until the end of 2012.
Section 309. Enhanced flexibility in non-reimbursable details to
elements of the intelligence community
Section 309 expands from one year to up to three years the
length of time that United States Government personnel may be
detailed to the ODNI on a non-reimbursable basis under which
the employee continues to be paid by the sending agency. To
utilize this authority, the joint agreement of the DNI and head
of the detailing element is required. As explained by the DNI,
this authority will provide flexibility for the ODNI to receive
support from other elements of the IC for community-wide
activities where both the sending agency and the ODNI would
benefit from the detail.
Section 310. Director of National Intelligence report on compliance
with the Detainee Treatment Act of 2005 and related provisions
of the Military Commissions Act of 2006
Section 310 requires the DNI to submit a classified report
to the congressional intelligence committees on all measures
taken by the ODNI and by any IC element with relevant
responsibilities on compliance with detention and interrogation
provisions of the Detainee Treatment Act of 2005 and the
Military Commissions Act of 2006. The report is to be submitted
no later than September 1, 2007.
The Detainee Treatment Act provides that no individual in
the custody or under the physical control of the United States,
regardless of nationality or physical location, shall be
subject to cruel, inhuman, or degrading treatment. Congress
reaffirmed this mandate in Section 6 of the Military
Commissions Act, adding an implementation mechanism that
requires the President to take action to ensure compliance
including through administrative rules and procedures. Section
6 further provides not only that grave breaches of Common
Article 3 of the Geneva Conventions are war crimes under Title
18 of the United State Code, but also that the President has
authority for the United States to promulgate higher standards
and administrative regulations for violations of U.S. treaty
obligations. It requires the President to issue those
interpretations by Executive Order published in the Federal
Register.
The report shall include a description of any detention or
interrogation methods that have been determined to comply with
the prohibitions of the Detainee Treatment Act and the Military
Commissions Act or have been discontinued pursuant to them.
The Detainee Treatment Act also provides for the protection
against civil or criminal liability for United States
Government personnel who had engaged in officially authorized
interrogations that were determined to be lawful at the time.
Section 310 requires the DNI to report on actions taken to
implement that provision.
The report shall also include an appendix containing all
guidelines on the application of the Detainee Treatment Act and
the Military Commissions Act to the detention or interrogation
activities, if any, of any IC element. The appendix shall also
include all legal justifications of the Department of Justice
about the meaning of the Acts with respect to detention or
interrogation activities, if any, of any IC element.
Section 311. Terms of service of Program Manager for the Information
Sharing Environment and the Information Sharing Council
The Intelligence Reform Act established two important
instruments for promoting information sharing, a Program
Manager for the Information Sharing Environment and an
Information Sharing Council. The Act limited the duration of
the Program Manager and Council to two years. In recognition of
the need for continued management of the Information Sharing
Environment, Section 311 enables the President to continue the
tenure of the Program Manager and the Information Sharing
Council beyond that two-year period.
Section 312. Improvement of notification of Congress regarding
intelligence activities of the United States Government
Section 312 amends the requirements for notifications to
Congress under Sections 502 and 503 of the National Security
Act of 1947 (50 U.S.C. 413a & 413b). First, Section 312
requires that, in the event that the DNI or the head of an
Intelligence Community element does not provide to all members
of the congressional intelligence committees the notification
required by Section 502 (relating to intelligence activities
other than covert actions) or Section 503 (relating to covert
actions) of the National Security Act of 1947, the committees
will be provided with a notification of this fact and will be
provided with a description of the main features of the
intelligence activity or covert action. The provision specifies
that no restriction shall be placed on the access to this
notification by any member of the committees. Second, Section
312 extends requirements in Section 502 of the National
Security Act of 1947 on the form and contents of reports to the
congressional intelligence committees on intelligence
activities other than covert actions to the requirements for
notifications to Congress under Section 503 of that Act
(relating to covert actions). Third, the section requires that
any change to a covert action finding under Section 503 of that
Act must be reported to the committees, rather than the
existing requirement to report any significant change.
Section 313. Additional limitation on availability of funds for
intelligence and intelligence-related activities
Section 313 adds to the requirements of Section 504 of the
National Security Act of 1947 (50 U.S.C. 414), which specify
that appropriated funds may be obligated or expended for an
intelligence or intelligence-related activity only if the
congressional intelligence committees have been ``fully and
currently informed'' of that activity. Section 313 adds that,
for intelligence activities or covert actions covered under
Section 312, the committees should be considered to have been
``fully and currently informed'' only if a notification
providing the main features of the activity or covert action
has been provided as required by Section 313.
Section 314. Vulnerability assessments of major systems
Section 314 adds a new oversight mechanism to the National
Security Act of 1947 (50 U.S.C. 442 et seq.) that requires the
DNI to conduct regular vulnerability assessments throughout the
life-span of every major system in the National Intelligence
Program. Major systems are significant programs of an element
of the IC with projected total development and program costs
exceeding $500 million in current fiscal year dollars. (50
U.S.C. 415a-1(e)(3)). 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.
The need for this oversight mechanism has been demonstrated
by the failure of a number of major systems within the National
Intelligence Program. For example, there have been major
systems that have not been able to perform the missions for
which they were originally designed. Also, there have been
major systems that were essentially obsolete by the time they
were finally deployed. The Committee believes that the use of
the vulnerability assessment tool should greatly enhance the
IC's ability to manage successfully its current and future
major systems.
Section 314 requires the DNI to conduct an initial
vulnerability assessment on every major system proposed for the
National Intelligence Program. 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 an analysis-based approach to identify
applicable vulnerabilities, define exploitation potential,
examine the system's potential effectiveness, determine overall
vulnerability, and make recommendations for risk reduction. The
DNI is obviously free to adopt a more rigorous methodology for
the conduct of initial vulnerability assessments.
Vulnerability assessment should continue through the life
of a major system. Numerous factors and considerations can
affect the viability of a given major system. For example,
technologies will change, countermeasures can be developed,
priorities can shift, new threats can emerge, secrets can be
stolen, production schedules can slip, and costs can increase
unexpectedly. For that reason, Section 314 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 re-assessment. The DNI is also permitted to
adjust a major system's assessmentschedule when the DNI
determines that a change in circumstances warrants the issuance of a
subsequent vulnerability assessment. Section 314 also provides that a
congressional intelligence committee may request the DNI to conduct a
subsequent vulnerability assessment of a major system.
The minimum requirements for a subsequent vulnerability
assessment are almost identical to those of an initial
vulnerability assessment. There are only two additional
requirements. First, if applicable to the given major system
during its particular phase of development or production, the
DNI must also use a testing-based approach to assess the
system's vulnerabilities. Obviously, common sense needs to
prevail here. For example, the testing approach is not intended
to require the ``crash testing'' of a satellite system.
However, the vulnerabilities of a satellite's 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 314 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.
Finally, the section contains definitions for the terms
``items of supply,'' ``major system,'' and ``vulnerability
assessment.''
Section 315. Annual personnel level assessments for the intelligence
community
Section 315 adds a new oversight mechanism to the National
Security Act of 1947 (50 U.S.C. 442 et seq.) that requires the
DNI to conduct, in consultation with the head of the element of
the Intelligence Community concerned, an annual personnel level
assessment for each of the elements within the Intelligence
Community and provide those assessments to the congressional
intelligence committees no later than January 31st of each
year.
The assessment consists of three parts. First, the
assessment must provide basic personnel and contractor
information for the concerned element of the Intelligence
Community. It requires that the data be compared against
current fiscal year 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. Finally, the
assessment must contain a statement by the Director of National
Intelligence that based upon current and projected funding the
concerned element will have the internal infrastructure,
training resources, and sufficient funding to support the
administrative and operational activities of the requested
personnel and contractor levels.
The Committee believes that the personnel level assessment
tool is necessary for the Executive branch and Congress to
fully understand the consequences of modifying the Intelligence
Community's personnel levels. This assessment process is
essential to the adoption and continuation of the personnel
level flexibility authority provided in Section 103. In the
aftermath of the terrorist attacks on September 11, 2001, the
Administration undertook sharp increases in personnel for the
Intelligence Community under the assumption that the
intelligence deficiencies leading up to the attacks resulted
from personnel shortfalls. Various external reviews have also
recommended more personnel. Since the attacks, Intelligence
Community personnel end strength has grown by about 20 percent.
The Committee originally supported personnel growth as a
way to strengthen intelligence collection, analysis, and
dissemination, but now questions its previous position for four
reasons: (1) the recent history of large scale personnel growth
indicates that personnel increases do not improve performance
commensurate with the cost; (2) the Administration is not
adequately funding the personnel growth it has planned; (3)
hiring additional personnel diverts fiscal resources from both
current mission and modernization needs; and (4) personnel
costs always increase, while budgets do not. Therefore, when
overall budgets do not keep pace with inflation and decline in
real terms, personnel costs as a percentage of the budget
increase each year and divert funds from operations and
modernization.
In February 2005, the Committee initiated an audit to
examine the full scope of activities and resources necessary to
support the Administration's projections for Intelligence
Community personnel growth during fiscal years 2006-2011. As a
result of this review and further study of the issue, the
Committee has concluded that increasing personnel without a
plan for enabling those personnel to work productively neither
prevents intelligence failures, nor guarantees enhanced
performance. The Committee has also concluded that the
Administration has not adequately funded its personnel growth
plan and that resources provided for personnel growth in some
cases are done so at the expense of other programs.
Another concern of the Committee is the Intelligence
Community's increasing reliance upon contractors to meet
mission requirements. It has been estimated that the average
annual cost of a United States Government civilian employee is
$126,500, while the average annual cost of a ``fully loaded''
(including overhead) core contractor is $250,000. Given this
cost disparity, the Committee believes that the Intelligence
Community should strive in the long-term to reduce its
dependence upon contractors. The Committee believes that the
annual personnel assessment tool will assist the Director of
National Intelligence and the congressional intelligence
committees in arriving at an appropriate balance of contractors
and permanent government employees.
Section 316. Business enterprise architecture and business system
modernization for the intelligence community
One of the greatest challenges facing the IC today is the
modernization of its business information systems. Guidance
from the Office of Management and Budget has called for all
business information systems in government organizations to
become integrated into a business enterprise architecture. A
business enterprise architecture incorporates an agency's
financial, personnel, procurement, acquisition, logistics, and
planning systems into one interoperable system. Currently, each
IC element is building unique, stovepiped systems that do not
leverage the investments of other elements of the IC. Section
314 gives the DNI a structure for creating a coherent business
enterprise architecture that will be useful for the
intelligence professional, as well as cost-effective for the
taxpayer.
Section 316 requires the DNI to create a business
enterprise architecture that defines all IC business systems,
as well as the functions and activities supported by those
business systems, in order to guide with sufficient detail the
implementation of interoperable IC business system solutions.
Section 316 also requires the submission of a preliminary draft
of the transition plan for implementing the business enterprise
architecture. The business enterprise architecture and
transition plan are to be submitted to the congressional
intelligence committees by March 1, 2008.
Section 316 will provide the congressional oversight
committees the assurance that business systems that cost more
than a million dollars and that receive more than 50 percent of
their funding from the National Intelligence Program will be
efficiently and effectively coordinated. It will also provide a
list of all ``legacy systems'' that will be either terminated
or transitioned into the new architecture. Further, this
section will require the DNI to report to the Committee no less
often than annually, for five years, on the progress being made
in successfully implementing the new architecture.
Section 317. Reports on the acquisition of major systems
The Committee is concerned with the growing costs
associated with major system acquisitions. Cost overruns and
schedule delays prevent the IC from fielding essential systems.
For example, with respect to a particular intelligence
community agency, it was found that of a sample of thirty
historical major system acquisitions, twenty-one had cost
overruns of 30 percent or more. With respect to current IC
space acquisitions, half have experienced cost growth of 50
percent or more. This is unacceptable.
In order to address the cause and impact of cost increases
and schedule delays, the Committee has created a mechanism in
Section 317 that requires the DNI to submit annual reports for
each major system acquisition by an element of the IC. These
reports must include, among other items, information about the
current total anticipated acquisition cost for such system, the
development schedule for the system including an estimate of
annual development costs until development is completed, the
current anticipated 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 318. Excessive cost growth of major systems
Section 318 requires that, in addition to the annual report
under Section 317, the Director of National Intelligence must
review cost increases of the acquisition of a major system
todetermine whether such increases are at least 20 percent from the
baseline cost. This section mirrors the Nunn-McCurdy provision in Title
10 of the United States Code that applies to major defense acquisition
programs. The Committee believes that a framework similar to Nunn-
McCurdy would be beneficial to IC acquisitions. The Committee envisions
that this determination will be done as needed and should not wait
until the time that the annual report is filed. In other words, the
Committee expects that the DNI will be advised on a regular basis by
elements of the IC about the progress and associated costs of a major
system acquisition.
If the cost growth is at least 20 percent, the DNI must
prepare a notification and submit a new independent cost
estimate to the congressional intelligence committees, and also
certify 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, 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. The program may then be allowed to
continue.
If, however, the DNI determines that the cost growth is at
least 40 percent, then the President must certify the four
factors previously certified by the DNI. The Committee does not
envision the certification process to be a rubber-stamp.
Rather, considerable care and judgment should be exercised in
making, or deciding not to make, the certification.
If the required certification, at either the 20 percent or
40 percent level, is not submitted to the congressional
intelligence committees, Section 318 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.
By making the DNI, and indeed the President, an integral
part of this process, the Committee hopes that the President,
the DNI, and the elements of the IC will recognize that the
Committee expects the DNI to assert, and be allowed to assert,
the DNI's statutory authority over the IC, particularly with
respect to budgetary matters including major systems
acquisitions.
The Committee believes that these initial steps are
necessary given the current state of cost overruns and the
reluctance of certain elements of the IC to assert needed
control over such acquisitions. The Committee not only has the
responsibility of maintaining appropriate oversight of the IC
and its acquisitions, but bears the obligation to ensure that
taxpayer funds are being spent responsibly and without waste or
delay. Our warfighters and policymakers depend on accurate and
timely intelligence to do their jobs. If systems that have been
deemed at one point to be essential are allowed to take years
or even decades to complete, then their usefulness is
significantly diminished, particularly given the rapidly-
changing pace of technology.
The Committee believes that this provision is necessary due
to the severe damage that a multi-billion dollar cost overrun
can have in an IC budget. With approximately a $500 billion
budget, the DoD can more readily absorb unanticipated program
increases. The National Intelligence Program is a small
fraction of the amount provided to DoD. Absorption of large
cost overruns within the National Intelligence Program can
cause disproportionate problems within the Intelligence
Community.
Section 319. Submittal to Congress of certain court orders under the
Foreign Intelligence Surveillance Act of 1978
Section 319 requires the Attorney General to provide to the
congressional intelligence and judiciary committees copies of
decisions, orders, or opinions of the Foreign Intelligence
Surveillance Court or the Foreign Intelligence Surveillance
Court of Review that include significant construction or
interpretation of the Foreign Intelligence Surveillance Act
(FISA), as well as associated pleadings, within 45 days. The
amendment further requires that any such decisions, orders or
opinions, and associated pleadings from the previous five years
which were not previously included in FISA semi-annual reports
be submitted to the committees. Finally, the amendment requires
that orders that include significant construction or
interpretation of FISA be included in semi-annual reports,
along with decisions and opinions.
Section 319 addresses three issues that have hampered the
Congress in its oversight and legislative responsibilities with
regard to FISA. First, under the current semi-annual report
provision of FISA, significant constructions or interpretations
of FISA are not required to be provided to the Congress if they
are contained in orders, as opposed to decisions or opinions.
This section closes that loophole. Second, there are times when
the most important discussions of legal interpretations are
included in pleadings. This section requires that pleadings be
provided to the Congress as well. Third, under the current
semi-annual reporting requirement, Congress's access to the
Court's interpretations of law can be significantly delayed.
Section 319 ensures that Congress will have the ability to
review those interpretations in a timely fashion.
Section 320. Submittal to Congress of certain President's Daily Briefs
on Iraq
Section 320 requires the DNI to submit to the congressional
intelligence committees any President's Daily Brief (PDB), or
any portion of a PDB, of the Director of Central Intelligence
(DCI) during the period beginning on January 20, 1997, and
ending March 19, 2003, that refers to Iraq or otherwise
addresses Iraq in any fashion.
Section 321. National intelligence estimate on global climate change
Section 321 requires the DNI to submit to Congress a
National Intelligence Estimate (NIE) within 270 days on the
impact to U.S. national security of the geopolitical effects
brought about by global climate change. The Committee notes
that the National Intelligence Council (NIC) is presently
writing such an assessment, which will either be produced as a
National Intelligence Assessment or an NIE on an unclassified
basis. Section 321 allows the DNI to determine whether the
requirement to produce an NIE would be duplicative of the
current NIC effort if both products would have the same
drafting and review procedures.
Section 321 directs the DNI to use as the baseline for the
NIE the mid-range projections of the fourth assessment report
of the Intergovernmental Panel on Climate Change. The IC would
therefore have no requirement to assess the underlying science
of global climate change or predict its immediate effects.
Rather, the NIE would focus on the direct impact from global
climate change on U.S. national security and strategic economic
interests. Changes resulting from global climate change present
potentially wide-ranging threats to the United States that may
require military, diplomatic, financial, and other national
responses. It is the IC's responsibility to prepare Executive
and Legislative branch policymakers for such possibilities.
The Committee does not anticipate that producing an NIE
will require the diversion of any collection or analytic
resources away from other key priorities. In response to input
from the DNI, Section 321 specifically directs that other
entities within the federal government assist the Director of
National Intelligence in the production of the NIE as
appropriate. The Committee expects this assistance will likely
come in the contribution of knowledge of environmental and
energy issues, resulting competition for resources or human
migration, the nature of military deployments that may be
required to address such impacts, or similar contributions. The
Director is also authorized to obtain nongovernmental
assistance, through contractor support, commissioned studies,
or otherwise, as appropriate to carry out this section.
Section 322. Repeal of certain reporting requirements
The Committee frequently requests information from the
Intelligence Community in the form of reports, the contents of
which are specifically defined by statute. The reports prepared
pursuant to these statutory requirements provide this Committee
with an invaluable source of information about specific matters
of concern.
The Committee recognizes, however, that congressional
reporting requirements, and particularly recurring reporting
requirements, can place a significant burden on the resources
of the Intelligence Community. It is therefore important for
the Congress to reconsider these reporting requirements on a
periodic basis to ensure that the reports it has requested are
the best mechanism for the Congress to receive the information
it seeks. In some cases, annual reports can be replaced with
briefings or notifications that provide the Congress with more
timely information and offer the Intelligence Community a
direct line of communication to respond to congressional
concerns.
In response to a request from the Director of National
Intelligence, the Committee examined some of these recurring
reporting requirements. Section 322 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 vast majority of recurring reports provide
critical information relevant to the many challenges facing the
Intelligence Community today, the Committee ultimately
eliminated only seven statutory reporting requirements, a very
small percentage of the many recurringreports currently
requested. The Committee believes that elimination of these reports
will help the Intelligence Community to allocate its resources properly
towards areas of greatest congressional concern.
TITLE IV--MATTERS RELATING TO ELEMENTS OF THE INTELLIGENCE COMMUNITY
Subtitle A--Office of the Director of National Intelligence
Section 401. Requirements for accountability reviews by the Director of
National Intelligence
Section 401 provides the Director of National Intelligence
with a new authority to conduct accountability reviews of
significant failures or deficiencies within the Intelligence
Community. Such accountability reviews may be conducted on
elements of the Intelligence Community or their personnel. This
process is intended to be separate and distinct from any
accountability reviews being conducted internally by the
elements of the Intelligence Community or their Inspectors
General, and is not intended to limit the authorities of the
Director of National Intelligence with respect to his
supervision of the Central Intelligence Agency.
Section 401 requires that the Director of National
Intelligence, in consultation with the Attorney General, must
formulate guidelines and procedures that will govern
accountability reviews. The Committee envisions that these
guidelines will govern the process by which the Director of
National Intelligence can collect sufficient information from
the Intelligence Community to assess accountability for a given
incident.
This enhancement to the authority of the Director of
National Intelligence is warranted given the apparent
reluctance of various elements of the Intelligence Community to
hold their agencies or personnel accountable for significant
failures or deficiencies. Recent history provides several
examples of serious failures to adhere to sound analytic
tradecraft. In its reviews of both the September 11, 2001
terrorist attacks and the faulty Iraq prewar assessments on
weapons of mass destruction, the Committee found specific
examples of these failures yet no one within the Intelligence
Community has been held accountable. Other examples of a lack
of accountability within the Intelligence Community can be
found by examining the history of certain major system
acquisition programs. Despite clear management failures that
resulted in significant cost overruns and unreasonable
scheduling delays, these programs continue to stumble along
without any imposition of accountability.
The Committee hopes that this modest increase in the
Director of National Intelligence's authorities will encourage
elements within the Intelligence Community to put their houses
in order by imposing accountability for significant failures
and deficiencies. Section 401 will enable the Director of
National Intelligence to get involved in the accountability
process in the event that an element of the Intelligence
Community cannot or will not take appropriate action.
Section 402. Additional authorities of the Director of National
Intelligence on intelligence information sharing
Section 402 amends the National Security Act of 1947 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 (NIP)
activities for the purpose of addressing critical gaps in
intelligence information access or sharing capabilities.
Without this authority, development and implementation of
necessary capabilities could be delayed by an agency's lack of
authority to accept or utilize systems funded from the NIP,
inability to use or identify current-year funding, or concerns
regarding the augmentation of appropriations.
These are similar to authorities granted to the National
Geospatial-Intelligence Agency (NGA) for developing and
fielding systems of common concern relating to imagery
intelligence and geospatial intelligence. See Section
105(b)(2)(D)(ii) of the National Security Act of 1947 (50
U.S.C. 403-5).
Section 403. Modification of limitation on delegation by the Director
of National Intelligence of the protection of intelligence
sources and methods
Section 403 amends Section 102A(i)(3) of the National
Security Act of 1947 to modify the limitation on delegation by
the DNI (which now extends only to the Principal Deputy DNI) of
the authority to protect intelligence sources and methods from
unauthorized disclosure. It permits the DNI to delegate the
authority to any Deputy DNI, the Chief Information Officer of
the IC, or the head of any IC element.
Section 404. Additional administrative authority of the Director of
National Intelligence
The DNI should be able to rapidly focus the IC on an
intelligence issue through a coordinated effort that uses all
available resources. The ability to coordinate the IC response
to an emerging threat should not depend on the budget cycle and
should not be constrained by general limitations in
appropriations law (e.g., 31 U.S.C. 1346) or other prohibitions
on interagency financing of boards, commissions, councils,
committees, or similar groups.
To provide this flexibility, Section 404 grants the DNI the
authority to approve interagency financing of national
intelligence centers established under Section 119B of the
National Security Act of 1947. 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 ``mission managers,'' such as
recommended by the Commission on the Intelligence Capabilities
of the United States regarding Weapons of Mass Destruction.
Under Section 404, the DNI could authorize the pooling of
resources from various IC agencies to finance national
intelligence centers or other organizational groupings designed
to address identified intelligence matters. The provision also
expressly permits IC elements, upon the request of the DNI, to
fund or participate in these interagency activities.
To better understand how the DNI utilizes the authority of
Section 404, the Committee requests that the DNI provide a
report by February 1st annually through the end of fiscal year
2010 providing details on how this authority has been
exercised.
Section 405. Enhancement of authority of the Director of National
Intelligence for flexible personnel management among the
elements of the intelligence community
Section 405 adds three subsections to Section 102A of the
National Security Act of 1947, all intended to promote the
DNI's ability to manage all the elements of the IC as a single
cohesive community.
Subsection 102A(t) enables the DNI, with concurrence of a
department or agency head, to convert competitive service
positions and incumbents within an IC element to excepted
positions. In requesting this authority, the DNI points out
that because of their unique intelligence, investigative and
national security missions, most IC elements are in the
excepted civil service. However, civilian employees in several
smaller IC elements are still covered under competitive service
rules. The ability to convert those to the excepted service
will enable the IC to maintain a system throughout the
Intelligence Community that is responsive to the needs of the
IC both for secrecy and the ability to quickly respond to
personnel requirements. Subsection (t) additionally allows the
DNI to establish the classification and ranges of rates of
basic pay for positions so converted.
Subsection 102A (u) provides enhanced pay authority for
critical positions in portions of the IC where that authority
does not now exist. It allows the DNI to authorize the head of
a department or agency with an IC element to fix a rate of
compensation in excess of applicable limits with respect to a
position that requires an extremely high level of expertise and
is critical to accomplishing an important mission. A rate of
pay higher than Executive Level II would require written
approval of the DNI. A rate of pay higher than Executive Level
I would require written approval of the President in response
to a DNI request.
Subsection 102A(v) grants authority to the DNI to authorize
IC elements, with concurrence of the concerned department or
agency head and in coordination with the Director of the Office
of Personnel Management, to adopt compensation, performance
management, and scholarship authority that have been authorized
for any other IC element.
Section 406. Clarification of limitation on co-location of the Office
of the Director of National Intelligence
Section 406 clarifies that the ban on co-location of the
Office of the DNI with any other IC element, which is slated to
take effect on October 1, 2008, applies to the co-location of
the headquarters of the Office of the DNI with the headquarters
of any other Intelligence Community agency or element.
Section 407. Additional duties of the Director of Science and
Technology of the Office of the Director of National
Intelligence
The Director of Science and Technology serves as the DNI's
chief representative for science and technology, assisting the
DNI in formulating a long-term strategy for scientific advances
in the field of intelligence and among the science and
technology elements of the intelligence budget. Section 407
sets forth additional duties for the Director of Science and
Technology and for the DNI's Science and Technology Committee.
Section 408. Title of Chief Information Officer of the Intelligence
Community
Section 408 expressly designates the position of Chief
Information Officer in the Office of the Director of National
Intelligence as Chief Information Officer of the Intelligence
Community. The modification to this title is consistent with
the position's overall responsibilities as outlined in Section
103G of the National Security Act of 1947 (50 U.S.C. 403-3g).
Section 409. Reserve for Contingencies of the Office of the Director of
National Intelligence
Section 409 establishes a Reserve for Contingencies of the
Office of the Director of National Intelligence. The reserve
will be an additional means of enabling the DNI to determine,
oversee, and implement the National Intelligence Program. As
described by the DNI to the Committee, the reserve will enable
the DNI to address emergency requirements, operational
exigencies, and opportunities that arise outside of the budget
formulation cycle and cannot be addressed in a timely way
through existing budget procedures. In contrast to
reprogramming authority, it will not require that the DNI take
funds from another authorized program to meet new needs.
Funds placed in the reserve as a result of an appropriation
or a transfer shall be available for expenditure in the fiscal
year of the deposit or transfer and the following fiscal year.
The DNI's declared intention is to limit the size of the
reserve to $50,000,000, although, of course, that is subject to
congressional appropriations and a continuing evaluation of the
use of the reserve. Section 409 will limit the use of the funds
to purposes for support of emergent needs, improvements to
program effectiveness, or increased efficiency.
In order for reserve funds to be made available for a
program or activity, the DNI, consistent with the provisions of
Sections 502 and 503 of the National Security Act of 1947 (50
U.S.C. 413a-413b), must notify the congressional intelligence
committees, at least 15 days before the funds are made
available, of the intention to utilize the reserve for the
particular program or activity. Additionally, the Director of
the Office of Management and Budget must approve the use of the
reserve for any program or activity not previously authorized
by Congress. Pursuant to Section 504 of the National Security
Act of 1947 (50 U.S.C. 414), funds may not be made available
for any intelligence or intelligence-related activity for which
funds were denied by Congress.
The use of any amounts in the reserve shall be subject to
the direction and approval of the DNI or the DNI's designee and
be subject to procedures that the DNI prescribes. The DNI
should provide these regulations and related guidance to the
congressional intelligence committees.
The Central Intelligence Agency has a similar reserve for
contingencies. The DNI should report to the congressional
intelligence committees, no later than the submission of the
President's fiscal year 2009 budget, on whether the CIA's
reserve and the reserve established under Section 409 should be
integrated into a single Intelligence Community reserve.
The Committee intends that the Reserve for Contingencies be
used as an alternative for the DNI's budgetary reprogramming
authorities on a limited basis. The reserve should not be used
for programmatic needs that could have been planned for or
anticipated. Reprogramming is to be preferred, when it can be
used, in that it entails a decision to cut spending elsewhere,
when that is possible.
Section 410. Inspector General of the Intelligence Community
Section 1078 of the Intelligence Reform Act authorizes the
DNI to establish an Office of Inspector General if the DNI
determines that an Inspector General (IG) would be beneficial
to improving the operations and effectiveness of the Office of
the DNI. It further provides that the DNI may grant to the
Inspector General any of the duties, responsibilities, and
authorities set forth in the Inspector General Act of 1978. The
DNI has appointed an Inspector General and has granted certain
authorities pursuant to DNI Instruction No. 2005-10 (Sept. 7,
2005).
As this Committee urged in reports on proposed
authorization acts for fiscal years 2006 and 2007, a strong IG
is vital to achieving the goal, set forth in the Intelligence
Reform Act, of improving the operations and effectiveness of
the Intelligence Community. It is also vital to achieving the
broader goal of identifying problems and deficiencies, wherever
they may be found in the IC, with respect to matters within the
responsibility and authority of the DNI, including the manner
in which elements of the IC interact with each other in
providing access to information and undertaking joint or
cooperative activities. By way of a new Section 103I of the
National Security Act of 1947, Section 410 of this Act
establishes an Inspector General of the Intelligence Community
in order to provide to the DNI and through reports to the
Congress, the benefits of an IG with full statutory authorities
and the requisite independence.
The Office of the Inspector General is to be established
within the Office of the DNI. The IG will keep both the DNI and
the congressional intelligence committees fully and currently
informed about problems and deficiencies in IC programs and
operations and the need for corrective actions. The IG will be
appointed by the President, with the advice and consent of the
Senate, and will report directly to the DNI. To bolster the
IG's independence within the Intelligence Community, the IG may
be removed only by the President, who must communicate the
reasons for the removal to the congressional intelligence
committees.
Under the new Subsection 103I(e), the DNI may prohibit the
IG from conducting an investigation, inspection, or audit if
the DNI determines that is necessary to protect vital national
security interests. If the DNI exercises the authority to
prohibit an investigation, the DNI must provide the reasons to
the intelligence committees within seven days. The IG may
submit comments in response to the congressional intelligence
committees.
The IG will have direct and prompt access to the DNI and
any IC employee, or employee of a contractor, whose testimony
is needed. The IG will also have direct access to all records
that relate to programs and activities for which the IG has
responsibility. Failure to cooperate will be grounds for
appropriate administrative action.
The IG will have subpoena authority. However, information
within the possession of the United States Government must be
obtained through other procedures. Subject to the DNI's
concurrence, the IG may request information from any United
States Government department, agency, or element. They must
provide the information to the IG insofar as is practicable and
not in violation of law or regulation.
The IG must submit semiannual reports to the DNI that
include a description of significant problems relating to IC
programs and operations and to the relationships between IC
elements. The reports must include a description of IG
recommendations and a statement whether corrective action has
been completed. Within 30 days of receiving each semiannual
report from the IG, the DNI must submit it to Congress.
The IG must immediately report to the DNI particularly
serious or flagrant violations. Within seven days, the DNI must
transmit those reports to the intelligence committees together
with any comments. In the event the IG is unable to resolve any
differences with the DNI affecting the duties or
responsibilities of the IG or the IG conducts an investigation,
inspection, or audit that focuses on certain high-ranking
officials, the IG is authorized to report directly to the
intelligence committees.
IC employees, or employees of contractors, who intend to
report to Congress an ``urgent concern''--such as a violation
of law or Executive order, a false statement to Congress, or a
willful withholding from Congress--may report such complaints
and supporting information to the IG. Following a review by the
IG to determine the credibility of the complaint or
information, the IG must transmit such complaint and
information to the DNI. On receiving the complaints or
information from the IG (together with the IG's credibility
determination), the DNI must transmit the complaint or
information to the intelligence committees. If the IG finds a
complaint or information not to be credible, the reporting
individual may still submit the matter directly to the
committees by following appropriate security practices outlined
by the DNI. Reprisals or threats of reprisal against reporting
individuals constitute reportable ``urgent concerns.'' The
Committee will not tolerate actions by the DNI, or by any IC
element, constituting a reprisal for reporting an ``urgent
concern'' or any other matter to Congress.Nonetheless,
reporting individuals should ensure that the complaint and supporting
information are provided to Congress consistent with appropriate
procedures designed to protect intelligence sources and methods and
other sensitive matters.
For matters within the jurisdiction of both the IG of the
Intelligence Community and an Inspector General for another IC
element (or for a parent department or agency), the Inspectors
General shall expeditiously resolve who will undertake the
investigation, inspection, or audit. In attempting to resolve
that question, the Inspectors General may request the
assistance of the Intelligence Community Inspectors General
Forum (a presently functioning body whose existence is ratified
by Section 410). In the event that the Inspectors General are
still unable to resolve the question, they shall submit it to
the DNI for resolution.
An IG for an IC element must share the results of any
investigation, inspection, or audit with any other IG,
including the Inspector General of the Intelligence Community,
who otherwise would have had jurisdiction over the
investigation, inspection, or audit.
Consistent with existing law, the Inspector General must
report to the Attorney General any information, allegation, or
complaint received by the Inspector General relating to
violations of Federal criminal law.
Section 411. Leadership and location of certain offices and officials
Section 411 confirms in statute that various offices are
within the Office of the DNI: (1) the Chief Information Officer
of the Intelligence Community; (2) the Inspector General of the
Intelligence Community; (3) the Director of the National
Counterterrorism Center; and (4) the Director of the National
Counter Proliferation Center (NCPC). 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 412. National Space Intelligence Office
The United States maintains a large investment in
satellites and this investment has grown dramatically in recent
years. These satellites serve the commercial and national
security needs of the nation. As such, a loss of any or all of
these assets would do tremendous harm to our economy and
security.
At the same time, our investment in intelligence collection
concerning threats to our interests in space has declined
markedly in relation to our overall investment in space
systems. Despite this significant overall investment, some
estimates indicate that we commit only 10 percent of what we
did nearly 25 years ago to the analysis of threats to space
systems. Recent international events have only served to
highlight this problem.
In an effort to better understand future threats to our
space assets, as well as potential threats to the United States
from space, Section 412 establishes a National Space
Intelligence Office (NSIO). It is not the intent of the
Committee that the NSIO be a physical consolidation of existing
intelligence entities with responsibilities for various types
of intelligence related to space. Rather, the functions of
NSIO, among others delineated in Section 412, will be to
coordinate and provide policy direction for the management of
space-related intelligence assets as well as to prioritize
collection activities consistent with the DNI's National
Intelligence Collection Priorities. The NSIO is to augment the
existing efforts of the National Air and Space Intelligence
Center (NASIC) and Missile and Space Intelligence Center
(MSIC); it is not designed to replace them. The Committee
intends that NSIO work closely with NASIC and MSIC to ensure a
coordinated IC response to issues that intersect the
responsibilities of all three organizations.
The NSIO Director shall be the National Intelligence
Officer for Science and Technology. The Committee encourages
appointment of an Executive Director from the Senior
Intelligence Service.
Section 413. Operational files in the Office of the Director of
National Intelligence
In the CIA Information Act, Congress authorized the DCI to
exempt operational files of the CIA from several requirements
of the Freedom of Information Act (FOIA), particularly those
requiring search and review in response to FOIA requests. In a
series of amendments to Title VII of the National Security Act
of 1947, Congress has extended the exemption to the operational
files of the National Geo-Spatial Intelligence Agency (NGA),
the National Security Agency (NSA), the National Reconnaissance
Office (NRO), and the Defense Intelligence Agency (DIA). It has
also provided that files of the Office of the National
Counterintelligence Executive (NCIX) should be treated as
operational files of the CIA (to the extent they meet the
criteria for CIA operational files).
Section 413 adds a new Section 706 to the National Security
Act of 1947. Components of the ODNI, including the National
Counterterrorism Center (NCTC), require access to information
contained in CIA and other operational files. The purpose of
Section 413 is to make clear that the operational files of any
IC component, for which an operational files exemption is
applicable, retain their exemption from FOIA search, review,
disclosure, or publication.
Section 413 provides several limitations. The exemption
does not apply to information disseminated beyond the ODNI.
Also, as Congress has provided in the operational files
exemptions for the CIA and other IC elements, Section 413
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 413 also provides for a decennial review by the DNI
to determine whether exemptions may be removed from any
category of exempted files. It provides that this review shall
include consideration of the historical value or other public
interest in the subject matter of those categories and the
potential for declassifying a significant part of the
information contained in them. The Committee underscores the
importance of this requirement, which applies to the other
operational exemptions in Title VII, and also reiterates its
interest in being advised by the DNI about the benefits of
coordinating the five decennial reviews presently required by
Title VII.
Section 414. Repeal of certain authorities relating to the Office of
the National Counterintelligence Executive
Section 414 amends the authorities and structure of the
Office of the NCIX to eliminate certain independent
administrative authorities that had been vested in the NCIX
when that official was appointed by and reported to the
President. Those authorities are unnecessary now that the NCIX
is to be appointed by and is under the authority of the DNI.
Section 415. 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 415 amends FACA to extend this exemption to advisory
committees established or used by the ODNI. The DNI should
inform the intelligence committees periodically about the
composition and use by the ODNI of advisory committees.
Section 416. Membership of the Director of National Intelligence on the
Transportation Security Oversight Board
Section 416 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 417. Applicability of the Privacy Act to the Director of
National Intelligence and Office of the Director of National
Intelligence
The Privacy Act (5 U.S.C. 552a) has long contained a
provision under which the DCI and then (after enactment of the
Intelligence Reform Act) the CIA Director could promulgate
rules to exempt any system of records within the CIA from
certain disclosure requirements under the Act. The provision
was designed to ensure that the CIA could provide safeguards
for certain sensitive information in its records systems. In
assuming the leadership of the Intelligence Community, the DNI
similarly requires the ability to safeguard sensitive
information in records systems within the ODNI. Section 417
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.
Subtitle B--Central Intelligence Agency
Section 421. Director and Deputy Director of the Central Intelligence
Agency
In abolishing the positions of DCI and Deputy DCI, the
Intelligence Reform Act provided for a Director of the CIA but
did not provide for a statutory deputy to the Director.
Section 421 establishes the position of Deputy Director of
the CIA. The Deputy will be appointed by the President by and
with the advice and consent of the Senate and will assist the
Director in carrying out the duties and responsibilities of
that office. In the event of a vacancy in the position of CIA
Director, or during the absence or disability of the Director,
the Deputy will act for and exercise the powers of the
Director. The CIA Director will obtain the concurrence of the
DNI before recommending a nominee to the President to fill a
vacancy in this position.
With the amendment made by Section 421, the presidential
nomination of both the Director and Deputy Director of the CIA
must be confirmed by the Senate. Given the sensitive operations
of the CIA, nominees for both positions merit close scrutiny by
Congress to examine their qualifications prior to their
assumption of office. With respect to the Deputy Director, the
requirement for Senate confirmation also provides assurance
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
nominee to assume those additional duties.
Section 421 also requires that not more than one of the
individuals serving in the positions of Director and Deputy
Director may be a commissioned officer of the Armed Forces in
active status. This is similar to the bar in the Intelligence
Reform Act on the simultaneous service by active duty officers
as DNI and Principal Deputy DNI.
With respect to the CIA Deputy Director, the Committee has
also included a provision that will make the nomination and
confirmation requirements of Section 421 applicable to the
successor to the individual who is administratively performing
the duties of the Deputy Director of the CIA on the date of
enactment of this Act. The requirement that the position be
filled by a Presidential nominee confirmed by the Senate will
not take effect until the earlier of the date the President
nominates an individual to serve in such position (except that
the Deputy who had been appointed administratively may continue
until the advice and consent Deputy assumes the position) or
the date the individual presently performing the duties of that
office leaves the post.
To insulate an officer serving as CIA Director or Deputy
Director from undue military influence, Section 421 provides
that so long as the individual continues to perform the duties
of CIA Director or Deputy Director, that person is not subject
to the supervision or control of the Secretary of Defense or
any of the military or civilian personnel of the Department of
Defense.
Section 422. Inapplicability to the Director of the Central
Intelligence Agency for annual report requirement on progress
in auditable financial statements
Section 422 relieves the CIA Director from the requirement
in Section 114A of the National Security Act of 1947 to submit
to the intelligence committees an annual report describing the
activities being taken to ensure that financial statements of
the CIA can be audited in accordance with applicable law and
the requirements of OMB. As discussed in the Committee
Comments, the Committee remains concerned that CIA has had
minimal success in achieving unqualified opinions on its
financial statements. The report required by Section 114A,
however, is unnecessary as the Committee now receives annual
audits of CIA's financial statements from the CIA Inspector
General. The requirements of Section 114A continue to apply to
the Directors of NSA, DIA, and NGA.
Section 423. Additional functions and authorities for protective
personnel of the Central Intelligence Agency
Section 423 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 423 authorizes protective detail personnel, when
engaged in the performance of protective functions, to make
arrests in two circumstances. Protective detail personnel may
make arrests without a warrant for any offense against the
United States--whether a felony, misdemeanor, or infraction--
that is committed in their presence. They may also make arrests
without a warrant if they have reasonable grounds to believe
that the person to be arrested has committed or is committing a
felony, but not other offenses, under the laws of the United
States. The provision specifically does not grant any authority
to serve civil process or to investigate crimes.
Section 423 provides that the CIA Director and the Attorney
General will issue regulations or guidelines that will provide
safeguards and procedures to ensure the proper exercise of this
authority. These shall be provided to the intelligence
committees.
The authority provided by this section is consistent with
those of other Federal elements with protective functions, such
as the Secret Service (18 U.S.C. 3056(c)(1)(C)), the State
Department Diplomatic Security Service (22 U.S.C. 2709(a)(5)),
and the United States Capitol Police (2 U.S.C. 1966(c)). The
grant of arrest authority is supplemental to all other
authority CIA protective detail personnel have by virtue of
their statutory responsibility to perform the protective
functions set forth in the CIA Act of 1949.
In requesting that the Congress extend this authority to
the CIA, the DNI has represented that this ``arrest authority
will contribute significantly to the ability of CIA protective
detail personnel to fulfill their responsibility to protect
officials against serious threats without being dependent on
the response of federal, state, or local law enforcement
officers.'' It is essential, in the regulations or guidelines
approved by the CIA Director and the Attorney General, and in
the supervision and training of protective duty personnel, that
the use of the authority is firmly kept to its purpose, namely,
protecting officials and any other covered persons against
serious threats.
Section 423 also authorizes the CIA Director on the request
of the DNI to make CIA protective detail personnel available to
the DNI and to other personnel within the ODNI.
The CIA Director should provide to the congressional
intelligence committees regulations or guidelines that are
approved by the Director and the Attorney General. The Director
should also keep the congressional intelligence committees
fully and currently informed about any use of this authority.
Section 424. Technical amendments relating to titles of certain Central
Intelligence Agency positions
Section 424 replaces out-of-date titles for CIA positions
with the current titles of the successors of those positions in
a provision of the Central Intelligence Agency Act of 1949 on
the obligation of the CIA Inspector General to notify the
congressional intelligence committees about investigations,
inspections, or audits concerning high-ranking CIA officials.
Section 425. Availability of the Executive Summary of the report on
Central Intelligence Agency accountability regarding the
terrorist attacks of September 11, 2001
Section 425 provides that by September 1, 2007, the CIA
Director shall prepare and make available to the public a
version of the Executive Summary of a report by the CIA
Inspector General that is declassified to the maximum extent
possible consistent with national security. The underlying
document is the Office of Inspector General Report on Central
Intelligence Agency Accountability Regarding Findings and
Conclusions of the Joint Inquiry Into Intelligence Community
Activities Before and After September 11, 2001. The CIA
Director is to submit to the intelligence committees a
classified annex that explains why any redacted material in the
Executive Summary was withheld from the public.
The Committee's efforts to obtain this measure of public
accountability are detailed in its report on the Committee's
activities in the 109th Congress, S. Rep. No. 110-57, at pp.
24-26 (2007). The full Senate has endorsed this effort by
including an identical provision in S. 4, Improving America's
Security Act of 2007.
Section 426. Director of National Intelligence report on retirement
benefits for former employees of Air America
Section 426 provides for a report by the DNI on the
advisability of providing federal retirement benefits to United
States citizens who were employees of Air America or an
associated company prior to 1977, during the time that the
company was owned or controlled by the United States and
operated by the CIA.
There were bills in the Senate and House (S. 651 and H.R.
1276) during the 109th Congress that would have provided
federal retirement benefits for those employees. By including
Section 426 in this authorization bill, the Committee takes no
position on the merits of that legislation.
The sole purpose of Section 426 is to direct the DNI to
undertake a study about Air America, its relationship to the
CIA, the missions it performed, and casualties its employees
suffered, as well as the retirement benefits that had been
contracted for or promised to Air America employees and what
they received. The DNI should submit any recommendations on the
advisability of legislative action and include any views that
the CIA Director may have on the matters covered by the report.
On the request of the DNI, the Comptroller General shall assist
in the preparation of the report in a manner consistent with
the protection of classified information.
Subtitle C--Defense Intelligence Components
Section 431. Enhancements of National Security Agency training program
Section 16 of the National Security Agency Act of 1959 (50
U.S.C. 402 note) authorizes the National Security Agency (NSA)
to establish an undergraduate training program to facilitate
recruitment of individuals with skills critical to its mission.
Under the program, the government has always had the right to
recoup the educational costs expended for the benefit of
employees whose employment with the NSA is ``terminated''
whether voluntarily by the employee or by NSA for misconduct.
Section 431(a) amends Section 16(d) of the NSA Act to
clarify that ``termination of employment'' includes situations
in which employees fail to maintain satisfactory academic
performance as defined by the Director of the NSA. Such
employees shall be in breach of their contractual agreement
and, in lieu of any service obligation arising under such
agreement, shall be liable for repayment. Failure to maintain
satisfactory academic performance has always been grounds for
default, resulting in the right of the United States Government
to recoup the educational costs expended for the benefit of the
defaulting employee. Thus, this provision is a clarification of
that obligation.
Section 431(b) permits the NSA Director to protect
intelligence sources and methods by deleting a requirement that
NSA publicly identify to educational institutions students who
are NSA employees or training program participants. Deletion of
this disclosure requirement will enhance the ability of NSA to
protect personnel and prospective personnel and to preserve the
ability of training program participants to undertake future
clandestine or other sensitive assignments for the Intelligence
Community. The Committee recognizes that nondisclosure is
appropriate when disclosure would threaten intelligence sources
or methods, would endanger the life or safety of the student,
or would limit the employee's or prospective employee's ability
to perform intelligence activities in the future.
Notwithstanding the deletion of the disclosure requirement, the
Committee expects NSA to continue to prohibit participants in
the training program from engaging in any intelligence
functions at the institutions they attend under the program.
See H.R. Rep. No. 99-690, Part I (July 17, 1986) (``NSA
employees attending an institution under the program will have
no intelligence function whatever to perform at the
institution.'').
Section 432. Codification of authorities of National Security Agency
protective personnel
Section 432 amends the NSA Act of 1959 (50 U.S.C. 402 note)
by adding a new Section 20 to clarify and enhance the authority
of protective details for NSA.
New Section 20(a) would authorize the Director of NSA to
designate NSA personnel to perform protective detail functions
for the Director and other personnel of NSA who are designated
from time to time by the Director as requiring protection.
Section 11 of the NSA Act of 1959 presently provides that the
Director of NSA may authorize agency personnel to perform
certain security functions at NSA headquarters, at certain
other facilities, and around the perimeter of those facilities.
The new authority for protective details would enable the
Director of the NSA to provide security when the Director or
other designated personnel require security away from those
facilities.
New Section 20(b) would provide that NSA personnel, when
performing protective detail functions, may exercise the same
arrest authority that Section 423 provides for CIA protective
detail personnel. The arrest authority for NSA protective
detail personnel would be subject to guidelines approved by the
Director of NSA and the Attorney General. The purpose and
extent of that arrest authority, the limitations on it, and
reporting expectations about it are described in the section-
by-section explanation for Section 423. That analysis and
explanation applies equally to the arrest authority provided to
NSA protective detail personnel by Section 20(b).
While this bill provides separately for authority for CIA
and NSA protective details, the DNI should advise the
intelligence committees whether overall policies, procedures,
and authority should be provided for protective services, when
necessary, for other IC elements or personnel (or their
immediate families).
Section 433. Inspector general matters
The Inspector General Act of 1978 (Pub. L. No. 95-452 (Oct.
12, 1978)) established a government-wide system of Inspectors
General, some appointed by the President with the advice and
consent of the Senate and others ``administratively appointed''
by the heads of their respective Federal entities. These IGs
were authorized to ``conduct and supervise audits and
investigations relating to the programs and operations'' of the
government and ``to promote economy, efficiency, and
effectiveness in the administration of, and * * * to prevent
and detect fraud and abuse in, such programs and operations.''
5 U.S.C. App. 2. They also perform an important reporting
function, ``keeping the head of the establishment and the
Congress fully and currently informed about problems and
deficiencies relating to the administration of * * * programs
and operations and the necessity for and progress of corrective
action.'' Id. The investigative authorities exercised by
Inspectors General, and their relative independence from the
government operations they audit and investigate, provide an
important mechanism to ensure that the operations of the
government are conducted as efficiently and effectively as
possible.
The IGs of the CIA and Departments of Defense, Energy,
Homeland Security, Justice, State, and Treasury are appointed
by the President with the advice and consent of the Senate.
These IGs--authorized by either the Inspectors General Act of
1978 or Section 17 of the CIA Act of 1949--enjoy a degree of
independence from all but the head of their respective
departments or agencies. They also have explicit statutory
authority to access information from their departments or
agencies or other United States Government departments and
agencies and may use subpoenas to access information (e.g.,
from an agency contractor) necessary to carry out their
authorized functions.
The National Reconnaissance Office, the Defense
Intelligence Agency, the National Security Agency and the
National Geospatial-Intelligence Agency have established their
own ``administrative'' Inspectors General. However, because
they are not identified in Section 8G of the Inspector General
Act of 1978, they lack explicit statutory authorization to
access information relevant to their audits or investigations,
or to compel the production of information via subpoena. This
lack of authority has impeded access to information, in
particular, information from contractors that is necessary for
them to perform their important function. These Inspectors
General also lack the indicia of independence necessary for the
Government Accountability Office to recognize their annual
financial statement audits as being in compliance with the
Chief Financial Officers Act of 1990 (Pub. L. No. 101-576 (Nov.
15, 1990)). The lack of independence also prevents the DoD IG,
and would prevent the Inspector General of the Intelligence
Community, from relying on the results of NRO, DIA, NSA, or NGA
Inspector General audits or investigations that must meet
``generally accepted government auditing standards.''
To provide an additional level of independence and to
ensure prompt access to the information necessary for these IGs
to perform their audits and investigations, Section 433 amends
Section 8G(a)(2) of the Inspector General Act of 1978 to
include NRO, DIA, NSA, and NGA as ``designated federal
entities.'' As so designated, the heads of these IC elements
will be required by statute to administratively appoint
Inspectors General for these agencies.
Also, as designated Inspectors General under the Inspector
General Act of 1978, these Inspectors General will be
responsible to the heads of the NRO, DIA, NSA, and NGA. The
removal or transfer of any of these IG by the head of their
office or agency must be promptly reported to the congressional
intelligence committees. These Inspectors General will also be
able to exercise other investigative authorities, including
those governing access to information and the issuance of
subpoenas, utilized by other Inspectors General under the
Inspector General Act of 1978.
To protect vital national security interests, Section 433
permits the DNI or the Secretary of Defense to prohibit the
Inspectors General of the NRO, DIA, NSA, and NGA from
initiating, carrying out, or completing any audit or
investigation they are otherwise authorized to conduct. This
authority is similar to the authority of the CIA Director under
Section 17 of the CIA Act of 1949 with respect to the Inspector
General of the CIA and the authority of the Secretary of
Defense under Section 8 of the Inspector General Act of 1978
with respect to the DoD Inspector General. It will provide the
President, through the DNI or the Secretary of Defense, a
mechanism to protect extremely sensitive intelligence sources
and methods or other vital nationalsecurity interests. The
Committee expects that this authority will be exercised rarely by the
DNI or the Secretary of Defense.
Section 434. Confirmation of appointment of heads of certain components
of the intelligence community
Under present law and practice, the directors of the NSA,
NGA, and NRO, each with a distinct and significant role in the
national intelligence mission, are not confirmed by the Senate
in relation to their leadership of these agencies. Presently,
the President appoints the Directors of NSA and NGA, and the
Secretary of Defense appoints the Director of the NRO. None of
the appointments must be confirmed by the Senate, unless a
military officer is promoted or transferred into the position.
Under that circumstance, Senate confirmation of the promotion
or assignment is the responsibility of the Committee on Armed
Services. That committee's review, however, relates to the
military promotion or assignment and not specifically to the
assumption by the individual of the leadership of a critical IC
element.
Section 434 provides, expressly and uniformly, that the
heads of each of these entities shall be nominated by the
President and that the nominations will be confirmed by the
Senate. NSA, NGA, and NRO play a critical role in the national
intelligence mission. Their spending comprises a significant
portion of the entire intelligence budget of the United States,
and a substantial portion of the 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 434 does not alter the role of the
Committee on Armed Services in reviewing and approving the
promotion or assignment of military officers.
Section 434(b) provides that the amendments made by Section
434 apply prospectively. Therefore, the Directors of NSA, NGA,
and NRO on the date of the enactment of this Act will not be
affected by the amendments, which will apply initially to the
appointment and confirmation of their successors.
Section 435. Clarification of national security missions of National
Geospatial-Intelligence Agency for analysis and dissemination
of certain intelligence information
The National Imagery and Mapping Agency Act of 1996 (Pub.
L. No. 104-201 (Sept. 23, 1996) (NIMA Act)) formally merged the
imagery analysis and mapping efforts of Department of Defense
and the CIA. In the NIMA Act, Congress cited a need ``to
provide a single agency focus for the growing number and
diverse types of customers for imagery and geospatial
information resources within the Government * * * to harness,
leverage, and focus rapid technological developments to serve
the imagery, imagery intelligence, and geospatial information
customers.'' Section 1102(1) of the NIMA Act. Since then, there
have been rapid developments in airborne and commercial imagery
platforms, new imagery and geospatial phenomenology, full
motion video, and geospatial analysis tools.
Section 921 of the National Defense Authorization Act for
Fiscal Year 2004 (Pub. L. No. 108-136 (Nov. 24, 2003)) changed
the name of the National Imagery and Mapping Agency to the
National Geospatial-Intelligence Agency. The name change was
intended to introduce the term ``geospatial intelligence'' to
better describe the unified activities of NGA related to the
``analysis and visual representation of characteristics of the
earth and activity on its surface.'' See S. Rep 108-46 (May 13,
2003) (accompanying The National Defense Authorization Act for
Fiscal Year 2004, S. 1050, 108th Cong., 1st Sess.).
Though the NGA has made significant progress toward
unifying the traditional imagery analysis and mapping missions
of the CIA and DoD, 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 DoD and IC networks.
Current mission planners and military personnel are well-served
with traditional imagery products and maps, but FMV of the
route to and from a facility or photographs of what a facility
would look like to a foot soldier--rather than from an
aircraft--would be of immense value to military personnel and
intelligence officers. Ground-based photography is amply
available from open sources, as well as other government
sources such as military units, United States embassy
personnel, Defense Attaches, Special Operations Forces, foreign
allies, and clandestine officers. These products should be
better incorporated into NGA data holdings.
To address these concerns, Section 435 adds an additional
national security mission to the responsibilities of the NGA.
To fulfill this new mission, NGA would be required, as directed
by the DNI, to develop a system to facilitate the analysis,
dissemination, and incorporation of likenesses, videos, or
presentations produced by ground-based platforms, including
handheld or clandestine photography taken by or on behalf of
human intelligence collection organizations or available as
open-source information into the national system for geospatial
intelligence.
Section 435 also makes clear that this new responsibility
does not include the authority to manage or direct the tasking
of, set requirements and priorities for, set technical
requirements related to, or modify any classification or
dissemination limitations related to the collection of,
handheld or clandestine photography taken by or on behalf of
human intelligence collection organizations. Although Section
435 does not give the NGA direct authority to set technical
requirements for collection of handheld or clandestine
photography, the Committee encourages the NGA to engage IC
partners on these technical requirements to ensure that their
output can be incorporated into the National System for
Geospatial-Intelligence.
Section 435 does not modify the definition of ``imagery''
found in Section 467(2)(A) of Title 10, United States Code, or
alter any of the existing national security missions of the
NGA. With Section 435, the Committee stresses the merits of FMV
and ground-based photography and clarifies that the exclusion
of ``handheld or clandestine photography taken by or on behalf
of human intelligence organizations'' from the definition of
``imagery'' under the NIMA Act does not prevent the
exploitation, dissemination, and archiving of that photography.
In other words, NGA would still not dictate how human
intelligence agencies collect such ground-based photography,
have authority to modify its classification or dissemination
limitations, or manage the collection requirements for such
photography. Rather, NGA should simply avail itself of this
ground-based photography, regardless of the source, but within
the security handling guidelines consistent with the
photography's classification as determined by the appropriate
authority.
Section 436. Security clearances in the National Geospatial-
Intelligence Agency
Although the NSA and the NGA have much in common as
technical intelligence agencies administratively linked with
the Department of Defense, their present authorities for
handling security clearances differ significantly. The
Secretary of Defense has delegated to the NSA authority for
contracting out background investigations and performing
adjudications on individuals doing work for the agency, both
for government employees and contractors. In contrast, the NGA
must rely on the Defense Security Service (DSS) or the Office
of Personnel Management (OPM) for background investigations and
on the DIA for adjudication.
The consequences at the NGA for processing times are
dramatic, particularly regarding contractor clearances. As the
Committee noted in its report on its Fiscal Year 2007 bill,
according to information provided by the DNI's Special Security
Center, the average end-to-end processing times for contractors
in July 2005 was 73 days for NSA and 540 days for NGA. NSA and
NGA processing times for contractors in the first quarter of
fiscal year 2006 showed that this significant discrepancy
continued. Moreover, the ability of the DSS to mitigate the
problem suffered a setback on April 25, 2006, when the DSS
temporarily suspended its acceptance of new contractor security
clearance applications.
The NGA's long backlog for contractor clearances is
deleterious for both the agency and the contractors that
support it. For NGA, the backlog drives up financial costs and
makes it more difficult to compete for talent. The backlog also
distorts efficiencies and good business practices in the
private sector, as contractors adjust to the realities of
significantly different agency clearance timelines.
Section 436 therefore provides that the Secretary of
Defense will delegate to the Director of the NGA personnel
security authority with respect to the NGA that is identical to
the personnel security authority delegated to the Director of
the NSA with respect to the NSA. The Committee calls upon the
DNI to follow closely the progress made by the NGA in reducing
processing times and to monitor the variation among the
processing times of other intelligence agencies with similar
requirements. The Committee anticipates that the arrangement
created by Section 436 will be a temporary measure, pending the
consistent attainment of reduced processing times by the OPM,
the DIA, and the DSS.
Subtitle D--Other Elements
Section 441. Clarification of inclusion of Coast Guard and Drug
Enforcement Administration as elements of the intelligence
community
Section 441 restores, with respect to the United States
Coast Guard, the prior definition of ``intelligence community''
in the National Security Act of 1947 applicable to that
service. See 50 U.S.C. 401a. Section 1073 of the Intelligence
Reform Act modified the definition of ``intelligence
community,'' inadvertently limiting the Coast Guard's inclusion
in the Intelligence Community to the Office of Intelligence or
those portions of the Coast Guard concerned with the analysis
of intelligence. Section 441 clarifies that all of the Coast
Guard's intelligence elements are included within the
definition of the ``intelligence community.''
Section 441 also codifies the joint decision of the DNI and
Attorney General to designate an office within the Drug
Enforcement Administration as an element of the Intelligence
Community.
Section 442. Clarifying amendments relating to section 105 of the
Intelligence Authorization Act for Fiscal Year 2004
Section 442 clarifies that the establishment of the Office
of Intelligence and Analysis within the Department of the
Treasury (Section 105 of the Intelligence Authorization Act for
Fiscal Year 2004 (Pub. L. No. 108-177 (Dec. 13, 2003))), and
its reorganization within the Office of Terrorism and Financial
Intelligence (Section 222 of the Transportation, Treasury,
Independent Agencies, and General Government Appropriations
Act, 2005 (Division H, Pub. L. No. 108-447 (Dec. 8, 2004))), do
not affect the authorities and responsibilities of the DNI with
respect to the Office of Intelligence and Analysis as an
element of the Intelligence Community.
Title V--Other Matters
Section 501. Technical amendments to the National Security Act of 1947
Section 501 corrects several inadvertent technical
anomalies in the National Security Act of 1947 arising from the
amendments made to that Act by the Intelligence Reform Act.
Section 502. Technical clarification of certain references to Joint
Military Intelligence Program and Tactical Intelligence and
Related Activities
Section 502 makes technical clarifications to Section 102A
of the National Security Act of 1947 to preserve the
participation of the DNI in the development of the annual
budget for the Military Intelligence Program (MIP), the
successor program of the Joint Military Intelligence Program
and Tactical Intelligence and Related Activities. Section 502
also preserves the requirement for consultation by the
Secretary of the Defense with the DNI in the reprogramming or
transfer of MIP funds.
Section 503. Technical amendments to the Intelligence Reform and
Terrorism Prevention Act of 2004
Section 503 corrects a number of inadvertent technical
errors in the specified sections of the Intelligence Reform
Act.
Section 504. Technical amendments to Title 10, United States Code,
arising from enactment of the Intelligence Reform and Terrorism
Prevention Act of 2004
Section 504 corrects a number of inadvertent technical
errors in Title 10, United States Code, arising from enactment
of the Intelligence Reform Act.
Section 505. Technical amendment to the Central Intelligence Agency Act
of 1949
Section 505 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 506. Technical amendments relating to the multiyear National
Intelligence Program
Section 506 updates the ``multiyear national foreign
intelligence program'' provision to incorporate and reflect
organizational and nomenclature changes made by the
Intelligence Reform Act.
Section 507. Technical amendments to the Executive Schedule
Section 507 makes several technical corrections to the
Executive Schedule. 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 508. Technical amendments relating to redesignation of the
National Imagery and Mapping Agency as the National Geospatial-
Intelligence Agency
Section 508 makes several technical and conforming changes
to existing law to bring these provisions in line with the
change in name of the National Imagery and Mapping Agency to
the NGA, as provided for in Section 921(b) of the National
Defense Authorization Act for Fiscal Year 2004 (Pub. L. No.
108-136 (Nov. 24, 2003)).
Section 509. Other technical amendments relating to the
responsibilities of the Director of National Intelligence as
head of the intelligence community
Section 509 makes several technical and conforming changes
to the Public Interest Declassification Act of 2000 (50 U.S.C.
435 note) to substitute the ``Director of National
Intelligence'' for the ``Director of Central Intelligence.''
COMMITTEE COMMENTS
CIA Detention and Interrogation Program
The fiscal year 2008 intelligence authorization bill is the
first passed by the Committee in which all members were briefed
on the CIA's detention and interrogation program. While the
program has been briefed from its outset to the Committee's
Chairman and Vice Chairman, the Administration's decision to
withhold the program's existence from the full Committee
membership for five years was unfortunate in that it
unnecessarily hindered congressional oversight of the program.
Significant legal issues about the CIA detention and
interrogation program remain unresolved. The Department of
Justice has not produced a review of aspects of the program
since the Supreme Court's Hamdan decision and the passage into
law of the Detainee Treatment Act in 2005 and the Military
Commissions Act of 2006. The Committee urges prompt completion
of such a legal review as soon as possible, regardless of
whether the program is currently being used. The Committee
expects that such review will be provided to the Committee as a
part of its ongoing oversight of the program.
The Committee recognizes that the program was born in the
aftermath of the attacks of September 11, when follow-on
attacks were expected. The Committee acknowledges that
individuals detained in the program have provided valuable
information that has led to the identification of terrorists
and the disruption of terrorist plots. More than five years
after the decision to start the program, however, the Committee
believes that consideration should be given to whether it is
the best means to obtain a full and reliable intelligence
debriefing of a detainee. Both Congress and the Administration
must continue to evaluate whether having a separate CIA
detention program that operates under different interrogation
rules than those applicable to military and law enforcement
officers is necessary, lawful, and in the best interests of the
United States.
Moreover, the Committee believes that the demonstrated
value of the program should be weighed against both the
complications it causes to any ultimate prosecution of these
terrorists, and the damage the program does to the image of the
United States abroad.
Foreign Intelligence Surveillance Act Modernization and Liability
Defense
The Committee remains committed to giving careful
consideration to the issues involved in the Administration's
legislative proposal to amend the Foreign Intelligence
Surveillance Act and the proposal to provide liability
protection to telecommunications companies who are alleged to
have assisted the Intelligence Community in carrying out the
President's surveillance program.
The Committee's review of the Administration's proposals
and possible alternatives cannot be completed, however, until
it receives key documents at the heart of the surveillance
program: the President's orders authorizing the warrantless
surveillance and the Department of Justice opinions on the
legality of the program. The Administration's refusal to
satisfy these document requests span over a year and hampers
the Committee's ability to move forward on the legislation
before it.
The Committee is also concerned about continued
Administration requests to limit access by Committee staff to
information related to the program. Limited staff access
impedes congressional oversight as well as the Committee's
ability to consider legislation related to the Foreign
Intelligence Surveillance Act. Access to the program should
therefore be expanded to the Committee's professional staff,
including all Members' designees.
Oversight of major acquisition programs
A major concern of the Committee is the need for
significant reform of the processes that govern the creation
and continuation of major acquisition programs. When Congress
and the President created the DNI, it gave the DNI milestone
decision authority for all major systems acquisitions funded
exclusively within the National Intelligence Program and shared
milestone decision authority with the Secretary of Defense for
major systems acquisitions within the Department of Defense.
The Committee is concerned that there is an inadequate
management structure within the ODNI to prioritize national
requirements, consider possible alternatives for proposed
systems, and determine mission-based requirements as they
relate to major systems acquisition programs. In essence, it
appears that there is a lack of rigor in the planning,
development, and management of such programs.
Although the bill does not contain a provision that
addresses the management structure with respect to such
programs, the Committee intends to continue to explore issues
relating to major acquisition programs. Accordingly, the
Committee requests that the DNI review the current management
structure within the Intelligence Community relating to the
approval of major acquisition programs, including all
requirements, priorities, and procedures for approval.
Particular attention should be given to the desirability of
creating an Intelligence Resources Oversight Council within the
ODNI to assist the DNI in exercising his authority over such
programs. A report with any conclusions and recommendations on
this concept should be forwarded to the Committee no later than
December 1, 2007.
In addition, the Intelligence Reform Act contained a
requirement for the DNI to provide the Congress with a report
on the status of major intelligence systems funded within the
National Intelligence Program. Specifically, the DNI was
required to ensure the development and implementation of a
program management plan for each major system acquisition. The
plans were to contain cost, schedule and performance goals, and
program milestone criteria.
The Committee received the DNI's first report, titled 2006
Annual Report to Congress, Intelligence Community Program
Management Plans, in February 2007, and applauds the effort of
the Office of the DNI in producing this document. For the first
time there is a single source for information on the status of
the Intelligence Community's major systems acquisitions. The
report contains not only details on the status of individual
programs, but valuable summary information on the acquisition
shortcomings of the individual agencies. For example, the
report highlights the lack of meaningful baseline data for a
number of NSA programs and the NRO's need to more prudently
align program baselines with anticipated budget resources. It
is likely that the availability of such information in prior
years would have helped prevent or contain cost overruns and
schedule delays.
The 2006 report was used by the Committee in preparing this
authorization bill. It will be used for further inquiry by the
Committee's budget and audit staffs and will be a baseline that
allows the Congress and DNI to derive trend data from future
reports. The Committee supports plans to expand the report's
coverage to include additional major systems, significant
programs that do not meet the threshold to be categorized as
major systems, and joint Intelligence Community and Department
of Defense programs. The Committee suggests that the DNI
consider using these reports to identify both positive
acquisition practices that should employed throughout the
Intelligence Community and unsuccessful practices that should
be eliminated.
The Committee also believes that the report could be
improved by adding more information on accountability. Future
versions of the report should present greater detail on the
DNI's perspective, propose solutions to the issues raised in
the report, and identify specific actions to be taken in
response to the failure to meet the milestones conveyed in
prior reports.
The Committee has also adopted two statutory requirements
for assessments and reporting to Congress on major systems
acquisition. In Section 314 of the bill, the Committee requires
the DNI to conduct an initial vulnerability assessments of
major systems proposed for inclusion in the National
Intelligence Program and subsequent assessments under certain
circumstances. The Committee also has created a mechanism for
IC major system acquisitions similar to the Nunn-McCurdy
process that applies to major defense acquisition programs in
Sections 317 and 318.
Intelligence Community personnel growth and contractor support
The Committee in Section 103 recommends that the DNI have
greater flexibility in determining personnel levels for
elements of the Intelligence Community in order to allow the
DNI to better manage the balance of government and contractor
employees. The Committee, however, continues to have concerns
over the lack of hard data on the IC's personnel structure,
size, and cost over the short, medium, and long terms. It is
essential that the DNI be able to explain what criteria should
be used to determine the proper mix of government and
contractor employees within the Intelligence Community. The
Committee continues to emphasize that the best analysis and
collection will not be attained by simply increasing the
quantity of analysts and collectors, but by also increasing the
quality of analysts, collectors and their support networks. The
DNI must also be able to explain the trade-offs that occur with
hiring more people, as opposed to using the same appropriations
to purchase other capabilities.
The Committee supports the DNI's efforts to survey and
better understand the use of contractors in the Intelligence
Community, and was encouraged that the April 2007 report
entitled IC Core Contractor Inventory provided a preliminary
snapshot of the total number of full time equivalent (FTE)
contractors by expenditure center. The report is a good first
step, but still more needs to be done.
A Committee audit of Intelligence Community personnel found
that end strength has grown by about 20 percent since the
attacks of September 11, 2001; unfortunately, significant
shortages in training capacity and secure office space, along
with inadequate planning for administrative, logistical, and
technical support have accompanied that growth. The Committee
in its audit has recommended that no future personnel growth
should take place until the challenges experienced in
implementing the past growth have been addressed. The Committee
continues to be concerned about the rate of growth in total
personnel costs as a percentage of the overall intelligence
budget and the lack of planning being done by the Executive
branch to control that growth for the future.
In Section 315, the Committee addresses the need for
additional information on personnel and contractor levels with
the requirement for the DNI to prepare an annual personnel
level assessment for each element of the Intelligence Community
by January of each year.
Auditable financial statements
For a number of years, the Committee has encouraged the
Intelligence Community to modernize its financial system
architecture to allow for auditable financial statements. The
Committee was pleased that the DNI's United States Intelligence
Community 100 Day Plan for Integration and Collaboration of
April 2007 included a serious commitment to improving financial
management. The Committee is also encouraged by the hard work
the ODNI put into the report Financial Statement Auditability
Plan, also of April 2007. The report outlines the current state
of the IC's financial management systems and explains the
challenges to achieving clean audits. The report fails,
however, to provide certain key pieces of information,
including timelines on when and how independent audit
assessments of important milestones will be conducted, when the
IC will reach the proposed architecture, and whether the
retention of outside experts would help address workforce
competency shortfalls at certain agencies.
Further, the Committee remains concerned that the proposal
for unqualified audit opinions, referred to as clean audits, by
2012 does not convey the urgent nature of the challenges facing
our country's intelligence elements when it comes to managing
and accounting for theirresources efficiently and effectively.
The NGA, NRO, NSA, CIA, and DIA all have been given ample opportunity,
first with the President's relevant guidance in 1997 and again with the
Committee's fiscal year 2002 intelligence authorization bill, to
address this issue using their current authorities. Unfortunately,
other than the NRO using first year estimates to receive a one-time
clean audit opinion, these organizations have repeatedly failed to
achieve tangible results on this important topic.
The Committee now turns to the DNI to provide much needed
leadership. Such leadership will be essential in conducting the
follow-on study on the ``way ahead'' required in the Financial
Statement Auditability Plan in a meaningful way. The Committee
expects this study to evaluate impartially not only the
objectives stated in the report, but also:
The authority of the Director of National
Intelligence on this topic;
The role and responsibilities of the IC's
Chief Information Officer in overseeing the integration
of the business enterprise architecture;
Financial considerations, including the most
cost effective system solution based on the future
direction of the software industry;
Operational considerations and change
management issues related to the workforce
``unlearning'' and ``relearning'' critical skills;
Risk considerations and the
counterintelligence implications from foreign ownership
of software providers;
Ideal system integrator structure and
software upgrade considerations, including dates when
the IC will have interface and business process
standards for major feeder systems, and accounting code
standards;
The findings of IC information technology
assessments and Inspector General reports completed
over the last five years; and
Intellectual property rights concerns.
This study should also examine whether it would be best for the
IC to outsource the oversight of implementing the chosen ``way
ahead'' to the experts currently working in the Department of
Defense's Business Transformation Agency, or if the IC should
immediately hire its own ``highly qualified employees'' or
``special advisors'' to oversee the future implementation.
Additionally, based on the Committee's research with
private sector experts and key personnel from the Business
Transformation Agency, and a review of the best of breed model
found at the Department of Transportation, the Committee is not
convinced that the two-system approach outlined in the
Financial Services Auditability Plan report is the most cost
effective and efficient path. The Committee is concerned that
the two-system solution rests too heavily on past decisions and
sunk costs of the individual agencies, and does not fully
embrace the shared service model endorsed by the OMB.
Therefore, by December 1, 2007, the Committee requests that the
DNI, in coordination with the Director of OMB, provide the
Committee with the follow-on plan that includes the information
described above and offers a specific timeframe and critical
milestones for the IC to move to a single shared services
financial system that will be used by the NGA, NRO, NSA, CIA,
DIA, and the Office of the DNI.
The follow-on plan should help inform the implementation of
Section 316 of the bill for a proposed Business Enterprise
Architecture to be provided to the oversight committees by
March 1, 2008. These documents will assist in the goal of
executing a realistic plan to achieve sustainable, clean audits
and provide the added benefit of integrating the IC's business
management systems. Such integrated systems will build on the
positive steps the Office of the DNI has already taken by
creating the IC's single Human Resources Information System and
single budget system called the Intelligence Resource
Information System. This business architecture will minimize
expensive and complex system interfaces and provide a cost-
conscious solution that will promptly provide valuable data for
future Directors of National Intelligence and agency heads.
Also, this course of action will leverage the best private
sector practices and allow the IC to benefit from the research
and development dollars industry has already invested in these
business management tools.
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
2010. In accordance with the DNI's Financial Statement
Auditability Plan, by fiscal year 2012, this consolidated
financial 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.
Intelligence Community contracting
The Committee is concerned about apparent conflicts of
interest within the intelligence acquisition community. Despite
provisions in the Federal Acquisition Regulation intended to
preclude such conflicts, the Committee is concerned that
organizational conflicts of interest may have adversely
impacted major acquisitions.
The Executive Branch is relying increasingly on contractors
to assist in managing or integrating complex acquisitions.
Contractor advisory and assistance service (CAAS) and systems,
engineering, and technical assistance (SETA) contracts are
often used to perform what would otherwise be inherently
governmental functions. There are merits to the government
utilizing the technical and program management expertise which
exists in the private sector. Close relationships, however,
between CAAS/SETA contractors and their parent, affiliate, or
subsidiary companies could bias those contractors in providing
advice to the government.
Where a program's prime contractor has a contractor
affiliate working in the program office setting program
requirements, assisting in source selections, and determining
award and incentive fees for the same program, there is strong
potential for conflicts of interest. An Inspector General
report from an element of the Intelligence Community expressed
concern about such apparent conflicts which were negatively
impacting the interests of that particular element. Indeed, the
Committee notes that several major prime contractors have
corporate affiliates supporting government program offices in
the management of major Intelligence Community acquisitions.
The Committee believes this practice is undesirable, and should
be fully addressed by the Inspectors General of the respective
elements of the Intelligence Community, including the Office of
the Director of National Intelligence.
Supplemental budgeting
The Committee remains concerned over the Administration's
continued use of supplemental appropriations bills to request
funding for intelligence operations. Since the terrorist
attacks of September 11, 2001, the Intelligence Community has
expended significant resources in supplemental funding on the
effort to defeat al Qa'ida and related terrorist groups, and on
intelligence operations in support of the conflict in Iraq.
While initially the costs associated with these two efforts may
have been unforeseen or unknowable, the Committee believes the
Intelligence Community has for some time been able to
anticipate and budget effectively on an annual basis for its
operations against terrorists and in Iraq, yet this has not
been reflected in the regular budget requests. The Committee is
further concerned that the Executive branch has misused the
supplemental process to request funding for long-term
acquisition and research and development programs, as well as
numerous projects of questionable value.
The Committee supports the Administration's decision to
request more funding for the Global War on Terrorism and Iraq
requirements in the fiscal year 2008 budget request. The
Committee, however, has many concerns regarding the continued
use of supplemental funding outside the regular budget process
to fund some counterterrorism operations. The conflict against
al Qa'ida and its supporters has proceeded for more than five
years, and many analysts and observers have concluded that it
may span a generation or more before it is over. Due to the
likely length of this effort, the Committee believes the
Intelligence Community should plan, budget, and fund its
counterterrorism operations for the long-term. This is not
possible if supplemental funding continues. Supplemental
requests introduce uncertainty into funding plans. Instead of
encouraging discipline, supplemental requests present
opportunity for gamesmanship. Instead of allowing for steady
employment of experienced personnel, supplemental requests
force the use of more expensive and more transient contractor
employees. The Committee believes that the practice of
budgeting by supplementals must end to better enable the
Intelligence Community to protect our citizens at home and
defeat those that threaten United States interests both here
and abroad.
The Committee expects the Presidential request funds for
all counterterrorism operations in the base budget beginning
with the fiscal year 2009 request.
Al Qa'ida
The Committee is concerned with recent assessments that
indicate al-Qa'ida has regenerated and resumed its operational
planning against western targets from its relative safe-haven
in the tribal areas of Pakistan. Despite the apprehension and
death of key leaders, al-Qa'ida continues to train operatives
and expand its reach, as evidenced by the 2007 North Africa
attacks by the newly named ``al-Qa'ida in the Maghreb.''
The resurgence of al-Qa'ida, nearly six years after the
terrorist attacks of September 11, 2001, suggests the
Intelligence Community should reevaluate its current strategy
to defeat the al-Qa'ida network. The Committee addresses this
issue further in the classified annex.
Long-term strategic planning for the FBI National Security Branch
The Committee remains concerned that the Federal Bureau of
Investigation (FBI) is not properly conducting long-term
strategic planning, especially in regard to the growth of the
National Security Branch (NSB) and the transformation of the
NSB into an intelligence-driven organization.
Many of the reforms required to appropriately transform the
NSB into a premier intelligence organization that can
effectively meet the intelligence needs of our post 9/11 world
within the United States remain in the planning and
implementation phases, when those reforms should be in the
evaluation and refinement stages.
The FBI is the premier law enforcement agency of the nation
and it has a strong foundation on which to build the NSB;
however, the Committee believes more should be done to define
and focus the intelligence mission of the NSB. This effort
should not impede information sharing or create new stove pipes
within the FBI, but rather recognize the sophistication, unique
training, and cultural change required to effectively address
the current threat environment.
The FBI has provided the Committee with an unclassified
five-page ``Counterterrorism Strategy,'' but it fails to
adequately address the transformation that must take place at
the FBI, or the urgency by which that change needs to occur.
A long-term strategic plan should be developed in
conjunction with the ODNI that examines: (1) NSB growth; (2)
how that growth is threat aligned; (3) how the NSB plans to
recruit personnel with intelligence expertise; (4) how the NSB
will identify training needs, implement training programs, and
measure the success of training; (5) how the NSB will manage
career paths--including a transparent career ladder--and
elevate the Intelligence Analyst position; and (6) how the NSB
will develop and utilize benchmarks and metrics to measure the
growth and success of all NSB programs and personnel.
Furthermore, the plan should describe what will drive the
NSB's allocation of analytical resources at headquarters and
across FBI field offices and evaluate the impact that the
National Intelligence Program (NIP) and non-NIP appropriations
have on the NSB.
Additionally, the plan should comprehensively address how
the FBI will use the increased funding authorized by the bill
for Counterterrorism Division (CTD) training and travel. The
increased funding is intended for Supervisory Special Agents,
Intelligence Analysts, and other Professional Staff in those
CTD units that provide oversight, management support, and
guidance to FBI field offices addressing international
terrorism and related matters.
Therefore, the Committee requests a comprehensive National
Security Branch long-term strategic plan be completed by the
FBI in conjunction with the ODNI that includes, but is not
limited to, the requirements above. The plan should be
unclassified, and if necessary, contain a classified annex. The
plan should be provided to the intelligence committees by March
1, 2008.
Department of the Treasury intelligence activities
The Committee is concerned that the roles and
responsibilities of the various components of the Office of
Terrorism and Financial Intelligence (TFI) at the Department of
Treasury are not sufficiently delineated in the area of
intelligence analysis. The Committee requests that by no later
than February 1, 2008, the Secretary of the Treasury, in
coordination with the Director of National Intelligence, submit
a report to the congressional intelligence committees on
intelligence analysis within the TFI.
The report should include a description of the roles of the
Office of Intelligence and Analysis (OIA), the Office of
Foreign Assets Control (OFAC), and the Financial Crimes
Enforcement Network (FinCEN) with regard to analysis of
intelligence information and analytic support for sanctions,
designations, and assistance to law enforcement conducted
pursuant to the authorities of the Department.
The report should also include the guidelines and policies
governing analysts at the OIA, OFAC and FinCEN related to
access to intelligence information, specifically: (1) sharing
of intelligence information within TFI; (2) direct sharing of
intelligence information between OFAC and FinCEN and the
Intelligence Community; and (3) sharing of intelligence
information by the TFI with federal agencies outside of the
Intelligence Community, as well as with state and local
authorities and law enforcement.
In addition, the report should include a description of
databases of financial information and information on financial
transactions maintained by the TFI and the Intelligence
Community. The report should include: (1) the legal authorities
governing the collection, maintenance and use of such
databases; (2) the purpose of such databases; (3) authorities
and policies governing direct access to such databases as well
as search parameters and the use of analytical tools; (4)
authorities and policies governing dissemination of information
from such databases as well as minimization requirements; (5)
authorities and policies related to the use of such databases
in coordination with each other; and (6) issues related to
privacy and United States person information with respect to
these databases.
Science and technology leadership
The Intelligence Community Chief Technology Officer (IC
CTO), known in statute as the Director for Science and
Technology (S&T), is the chief S&T advisor for the Director of
National Intelligence. After the reorganization announced by
the DNI in April 2007, the IC CTO reports indirectly, through
two other positions, to the DNI, whereas other chief advisor
positions such as the Chief Information Officer and Chief
Financial Officer are empowered to report directly to the DNI.
Though the Committee appreciates the potential benefits of
having the IC CTO report to the DNI's acquisition leadership to
improve technology transition, the Committee notes that the IC
CTO has a broad portfolio of important responsibilities beyond
those directly related to acquisition. The Committee continues
to see a significant need for an IC CTO to directly influence
IC policy and strategy regarding S&T issues, as originally set
forth in the Intelligence Reform Act. Though the Committee
understands that the DNI is still working on the details of his
organization plan, there is concern that S&T may not be able to
get the attention it deserves in the Office of the DNI.
One of the IC CTO's principal responsibilities is to guide
IC research and development, and one of the CTO's major
achievements to date is the establishment of the Intelligence
Advanced Research Projects Activity (IARPA). The IARPA has been
well-represented in the DNI's 100 Day Plan and in the DNI's
statements supporting community research and development.
Studies by distinguished independent advisory groups such as
the Intelligence Science Board and the Committee's Technical
Advisory Group emphasize the need for an IARPA. In strongly
supporting the establishment of the IARPA, created with some of
the best practices of the Defense Advanced Research Projects
Agency (DARPA) in mind, the Committee intends to nurture high-
priority (and sometimes high-risk and long-term) community
research and development activities by allowing an independent
organization to manage and sustain them over time, insulated
from agency-specific operational pressures that frequently
threaten research and development resources.
The IARPA Director is expected to face significant
challenges inherent to the position in areas such as budget
control, relationships with the ODNI and IC leadership, and
translation of mission requirements into research and
development priorities. Further, the first IARPA Director, as
head of a new community research and development activity, is
expected to face significant challenges from the entrenched
bureaucracy and the operations-focused agencies. It is critical
that the DNI hire a uniquely qualified person to fill this
position. The Committee is concerned, however, that the IARPA
will not be able to attract the best candidates for Director if
the position is deeply buried in the Office of the DNI
organization. In the DARPA model, the DARPA Director reports to
the Secretary of Defense's deputy for research and engineering,
who reports to the Secretary of Defense. The Committee is
concerned that the DNI's new organizational plan does not
follow a similar model empowering the IARPA Director to report
to the DNI's CTO who would report to the DNI, and instead
places the IARPA under officials with other priorities. The
Committee encourages the IC leadership to take full advantage
of the rare opportunity created by the establishment of the
IARPA and to strengthen S&T leadership at all levels.
Another of the IC CTO's responsibilities is to improve
coordination and integration of S&T activities across the IC,
and to that end the IC CTO must ensure that IARPA activities
are well-coordinated with IC agency activities. The Committee
requests that the IC CTO and the National Intelligence Science
and Technology Committee (composed of the principal S&T
officers of the National Intelligence Program) present by
October 1, 2007 a unified plan clearly describing the division
of research and development responsibilities and the processes
for effective coordination among the agencies and the IARPA.
Section 407 of the bill addresses additional duties that the
Committee believes the Director of Science and Technology and
theNational Intelligence Science and Technology Committee
should address.
Further, following the recommendations that were made by
the Committee's Technical Advisory Group, the Committee
requests that the IARPA present by October 1, 2007 a concept of
operations to include how research ideas will be solicited and
selected for funding; a strategy for technology insertion into
operational organizations in the IC; and a plan for flexible
hiring of the necessary S&T experts from industry and academia,
with particular attention to additional authorities or
resources that may be required.
Civil Liberties Protection Officer
The Intelligence Reform Act mandated the creation of a
Civil Liberties Protection Officer, with significant statutory
responsibilities. While the current Civil Liberties Protection
Officer has made a commendable effort to carry out these
responsibilities since his appointment, he has been
unnecessarily hampered by a lack of staff and resources, as
well as a lack of relevant security clearances.
The Committee is recommending an increase in resources for
the Civil Liberties Protection Office in the classified annex
to this Act. The Committee also urges the DNI to ensure that
the Civil Liberties Protection Officer and his staff have
adequate access to all intelligence activities that have the
potential to impact the privacy and civil liberties of United
States persons, so that the Office is able to fulfill its
mandate.
The Armed Forces Medical Intelligence Center
The Armed Forces Medical Intelligence Center (AFMIC) is the
only medical intelligence organization in the United States and
is without peer worldwide. AFMIC is the recognized expert on
infectious disease and the consequences of pandemic outbreaks
and weapons of mass destruction (WMD) incidents. For this
reason, the AFMIC has significant new responsibilities for
supporting the Department of Homeland Security, just as it has
taken on a significant share of the lead for the United States
Government in assisting other nations in efforts to prepare for
and respond to potential pandemic disease outbreaks or large-
scale WMD incidents.
Although the commanders and chief executives of AFMIC
historically have been officers of exceptional skill and
undeniable quality, at the rank of colonel, the Committee
believes AFMIC's new interagency responsibilities and growing
international visibility suggest the need for a more senior
level of leadership. Should there be a catastrophic biological
or chemical attack or the spread of a pandemic disease, the
leader of AFMIC will need to have the rank to serve as a
principal advisor at the most senior levels of the government.
Therefore, the Committee requests that the Under Secretary
of Defense for Intelligence, the Director of the Defense
Intelligence Agency, and the Director of National Intelligence
develop a plan for installing a senior executive service
officer or military officer of flag rank to lead AFMIC and
report to the congressional oversight committees on such a plan
by September 1, 2007.
Senior Defense Intelligence Officers
The Committee believes intelligence personnel serving
within the Department of Defense should provide direct and
continuous expert intelligence information and advice to senior
Department officials, specifically those of the Office of the
Under Secretary of Defense for Policy [USD(P)]. The Committee
believes building trust and confidence in intelligence requires
time and contact with policymakers.
At present, the Defense Intelligence Agency has identified
senior intelligence officers to support the policy apparatus,
but these personnel are based at DIA facilities at Bolling
A.F.B., not at the Pentagon. Comparatively junior officers with
little or no standing with the senior officials they support
are detailed to distribute finished intelligence to policy
makers through their policy staff. These officers attend
meetings as back-benchers and take carefully-crafted notes,
which are passed up to the offices of the DIA Director through
a bureaucratic network. The Committee does not believe this is
an optimum way to manage the interaction of intelligence and
policy.
Policymakers need ready access to dedicated, senior-level,
expert intelligence advisors who are guided, managed and
empowered by the Under Secretary of Defense of Intelligence
[USD(I)] and the Director of the DIA to speak for the defense
intelligence community. These experts should be fully
integrated and routinely available to address policymaker
questions regarding current intelligence, intelligence
community capabilities, threat concerns, strategic warning,
outstanding requests for intelligence, collection requirements
and a myriad of issues that require more than what finished
intelligence products delivered by action officers and routine
community briefings can provide.
The Committee believes defense policy makers should not be
expected to maintain an expert understanding of the complex
organization and evolving capabilities of the Intelligence
Community. Similarly, they cannot be expected to become aware
of regional intelligence through briefings and intelligence
products alone. The Committee believes a senior intelligence
officer with standing within the Intelligence Community should
be present during the early stages of a crisis or the
development of a critical issue. Furthermore, senior
intelligence officers who establish appropriate professional
relationships with senior policymakers are a valuable source of
insight and feedback to the USD(I) and DIA Director. This
effort is of mutual benefit, in the Committee's view.
Therefore, the Committee requests that the USD(I) and
Director of DIA develop a plan and report to the congressional
oversight committees by January 1, 2008, to provide senior
defense policymakers with intelligence support from senior
defense intelligence community officers, appropriate to their
responsibilities and position. The Committee recommends USD(I)
work with the DIA to draw on the existing capabilities within
the Senior Intelligence Executive Service and the assets of the
DIA Executive Support Office, the DIA International Engagements
Office, and the Joint Chiefs of Staff J2.
The USD(I) and the Director of the DIA should draw on the
history of and lessons learned from the Defense Intelligence
Officer (DIO) program. The Committee believes the DIO program
was a viable enterprise, which was more in need of an overhaul
than complete elimination. While the threat environment and
intelligence community have changed dramatically since the DIOs
were created, the Committee believes the DIO program was sound
and could be a model for the future.
Space Radar
The Committee opposes the Space Radar program of record.
The Committee is skeptical of the program's mission utility and
objects to its expected costs. In addition, the Committee
questions the validity of more stringent requirements being
levied upon the program. Therefore, the Committee recommends
that the Space Radar program be terminated and directs that no
National Intelligence Program funds be spent on the program.
Space Radar--formerly known as Space Based Radar (SBR)--is
a joint effort between the Department of Defense (DoD) and the
IC. In January 2005, the DoD and the IC committed to pursuing a
single space radar capability. According to a recent Government
Accountability Office (GAO) report, however, a cost-share
agreement between DoD and the IC has yet to be formalized.
Initial plans for SBR called for a constellation of many
satellites. However, fiscal realities intervened, leading to a
reduction in the number of intended satellites. This has only
served to drive unit costs far higher while meeting only a
fraction of the original requirements.
The GAO report criticized the DoD for beginning more space
and weapons programs than it could afford, which led to
pressure to underestimate costs and over-promise capabilities.
The Committee believes that the IC has the same problem; thus,
beginning another major acquisition at this time, especially
one so costly and technically complex, is imprudent.
DoD's space acquisition programs continue to face
substantial cost and schedule overruns. At times, cost growth
has come close to or exceeded 100 percent. The GAO noted that,
over the next five years, there will be approximately $12
billion less available for new systems as well as for the
discovery of promising new technologies because of cost growth.
Many programs are also experiencing significant schedule
delays--as much as six years--that postpone delivery of
promised capabilities to the warfighter and the IC.
A former head of the Air Force Space Command has commented
that SBR will be developed ``in a way that we don't ask it to
do too much, too fast.'' Yet according to the GAO, Space Radar
and the Transformational Communications Architecture Satellite
(TSAT) are expected to be the most ambitious, expensive, and
complex space systems ever. Despite the efforts of the Space
Radar program office, there is still significant inherent risk
with integrating critical technologies onboard the satellites
and developing the software to achieve the satellites'
capabilities. Further, the DoD has a history of adding
requirements to a program, even well into the acquisition.
Basic questions about the Space Radar architecture are
unanswered. The cost of supporting communications systems
remains unclear. According to the Congressional Budget Office
(CBO), communications bandwidth comparable to that of the Air
Force's planned TSAT or some other high-capacity communications
system is likely to be necessary to relay Space Radar data to
ground stations in a timely fashion. However, most Space Radar
cost estimates do not include those expenses since the final
architecture has yet to be defined.
According to the GAO, preliminary estimates of the combined
cost of Space Radar and the TSAT are about $40 billion. The
Committee believes, however, that the cost and schedule
estimates for Space Radar will follow typical space acquisition
patterns and be much higher. The CBO estimates the cost of a
nine-satellite space radar constellation will cost between
$34.6 billion to $77.1 billion, depending on design trades.
The Committee does not oppose a space-based radar
capability developed jointly by the DoD and the IC, but
believes there are other means to achieve it. The Committee
considers the alternatives espoused by the Constellation
Architecture Panel to offer a less risky, less costly, and more
flexible acquisition strategy.
COMMITTEE ACTION
Vote to report the committee bill
On May 23, 2007, a quorum for reporting being present, the
Committee voted to report the bill favorably, subject to
amendment, by a vote of 12 ayes and 3 noes. The votes in person
or by proxy were as follows: Chairman Rockefeller--aye; Senator
Feinstein--aye; Senator Wyden--aye; Senator Bayh--aye; Senator
Mikulski--aye; Senator Feingold--aye; Senator Nelson--aye;
Senator Whitehouse--aye; Vice Chairman Bond--aye; Senator
Warner--aye; Senator Hagel--aye; Senator Chambliss--no; Senator
Hatch--no; Senator Snowe--aye; Senator Burr--no.
Votes on amendments to committee bill and this report
On May 17, 2007, by a voice vote, the Committee agreed to
an amendment by Chairman Rockefeller and Vice Chairman Bond to
include in this report a Committee Comment concerning the CIA
detention and interrogation program.
On May 17, 2007, after rejecting by a vote of 5 ayes to 10
noes a second degree amendment by Vice Chairman Bond, the
Committee agreed by voice vote to an amendment by Chairman
Rockefeller to include in this report a Committee Comment on
the Committee's consideration of legislation on FISA
modernization and liability defense. The second degree
amendment would have substituted the following for the second
paragraph of the Comment: ``The Committee believes that
receiving the President's orders authorizing the warrantless
surveillance and the legal justifications embodied in the
Department of Justice opinions on the legality of the program
is important to the Committee's review of the Administration's
proposals and possible alternatives.'' The votes on the second
degree amendment in person or by proxy were as follows:
Chairman Rockefeller--no; Senator Feinstein--no; Senator
Wyden--no; Senator Bayh--no; Senator Mikulski--no; Senator
Feingold--no; Senator Nelson--no; Senator Whitehouse--no; Vice
Chairman Bond--aye; Senator Warner--aye; Senator Hagel--no;
Senator Chambliss--aye; Senator Hatch--aye; Senator Snowe--no;
Senator Burr--aye.
On May 17, 2007, by a vote of 10 ayes to 5 noes, the
Committee adopted an amendment of Chairman Rockefeller to add a
section to the bill (Section 320) that requires the submittal
to Congress of portions of the President's Daily Brief from
January 20, 1997, through March 19, 2003, that address Iraq.
The votes on the amendment in person or by proxy were as
follows: Chairman Rockefeller--aye; Senator Feinstein--aye;
Senator Wyden--aye; Senator Bayh--aye; Senator Mikulski--aye;
Senator Feingold--aye; Senator Nelson--aye; Senator
Whitehouse--aye; Vice Chairman Bond--no; Senator Warner--no;
Senator Hagel--aye; Senator Chambliss--no; Senator Hatch--no;
Senator Snowe--aye; Senator Burr--no.
On May 17, 2007, by a voice vote, the Committee adopted an
amendment by Vice Chairman Bond, Chairman Rockefeller, Senator
Burr, Senator Hatch, Senator Wyden and Senator Feingold
(Section 401) that requires the Director of National
Intelligence to conduct accountability reviews of elements of
the Intelligence Community and the personnel of such elements,
if appropriate.
On May 17, 2007, on a motion by Vice Chairman Bond and
Senator Mikulski, after rejecting by a vote of 6 ayes to 9 noes
a second degree amendment by Senator Feinstein, the Committee
agreed by voice vote to an amendment (Section 106) on the
development and acquisition of a program specified in the
classified annex. The second degree amendment offered by
Senator Feinstein was to reduce the funding level of the
underlying amendment and to limit expenditures to pre-
production studies and development in conjunction with other
planning being done under the auspices of the relevant element
of the Intelligence Community. Further details are in the
classified annex. The votes in person or by proxy on the second
degree amendment were as follows: Chairman Rockefeller--aye;
Senator Feinstein--aye; Senator Wyden--no; Senator Bayh--aye;
Senator Mikulski--no; Senator Feingold--aye; Senator Nelson--
aye; Senator Whitehouse--aye; Vice Chairman Bond--no; Senator
Warner--no; Senator Hagel--no; Senator Chambliss--no; Senator
Hatch--no; Senator Snowe--no; Senator Burr--no.
On May 23, 2007, by a voice vote, the Committee adopted an
amendment by Vice Chairman Bond, Senator Burr and Senator
Feingold (Sections 317 and 318) requiring an annual report by
the Director of National Intelligence on the acquisition of
major systems and establishing a procedure concerning cost
overruns.
On May 23, 2007, by a voice vote, the Committee adopted an
amendment by Senator Feinstein, Senator Hagel, Senator Warner,
Senator Whitehouse, Senator Snowe and Senator Mikulski (Section
321) to require that the Director of National Intelligence
submit to Congress a National Intelligence Estimate on the
anticipated geo-political effects of global climate change.
On May 23, 2007, by a vote of 10 ayes and 5 noes, the
Committee adopted an amendment by Senator Feinstein and Senator
Feingold (Sections 312 and 313) on (a) notifications to the
congressional intelligence committees under Sections 502 and
503 of the National Security Act of 1947 and (b) the
availability of funds under Section 504 of that Act. The votes
in person or by proxy were as follows: Chairman Rockefeller--
aye; Senator Feinstein--aye; Senator Wyden--aye; Senator Bayh--
aye; Senator Mikulski--aye; Senator Feingold--aye; Senator
Nelson--aye; Senator Whitehouse--aye; Vice Chairman Bond--no;
Senator Warner--no; Senator Hagel--aye; Senator Chambliss--no;
Senator Hatch--no; Senator Snowe--aye; Senator Burr--no.
On May 23, 2007, by a vote of 4 ayes and 11 noes, the
Committee rejected an amendment by Senator Chambliss to strike
Section 107 on the availability to the public of the aggregate
amount requested by the President and authorized and
appropriated by Congress for the National Intelligence Program.
The votes in person or by proxy were as follows: Chairman
Rockefeller--no; Senator Feinstein--no; Senator Wyden--no;
Senator Bayh--no; Senator Mikulski--no; Senator Feingold--no;
Senator Nelson--aye; Senator Whitehouse--no; Vice Chairman
Bond--no; Senator Warner--no; Senator Hagel--no; Senator
Chambliss--aye; Senator Hatch--aye; Senator Snowe--no; Senator
Burr--aye.
On May 23, 2007, by a vote of 10 ayes and 5 noes, the
Committee adopted an amendment by Senator Feingold (Section
319) on the provision to the Intelligence and Judiciary
Committees of opinions and orders of the Foreign Intelligence
Surveillance Court, and associated pleadings, that include a
significant construction or interpretation of the Foreign
Intelligence Surveillance Act. The votes in person or by proxy
were as follows: Chairman Rockefeller--aye; Senator Feinstein--
aye; Senator Wyden--aye; Senator Bayh--aye; Senator Mikulski--
aye; Senator Feingold--aye; Senator Nelson--aye; Senator
Whitehouse--aye; Vice Chairman Bond--no; Senator Warner--no;
Senator Hagel--aye; Senator Chambliss--no; Senator Hatch--no;
Senator Snowe--aye; Senator Burr--no.
On May 23, 2007, by a vote of 9 ayes and 6 noes, the
Committee adopted an amendment by Senator Feingold and Senator
Wyden to add to a Committee Comment on FISA modernization and
liability defense a paragraph on expanded staff access to
information. The votes in person or by proxy were as follows:
Chairman Rockefeller--aye; Senator Feinstein--aye; Senator
Wyden--aye; Senator Bayh--aye; Senator Mikulski--aye; Senator
Feingold--aye; Senator Nelson--aye; Senator Whitehouse--aye;
Vice Chairman Bond--no; Senator Warner--no; Senator Hagel--no;
Senator Chambliss--no; Senator Hatch--no; Senator Snowe--aye;
Senator Burr--no.
On May 23, 2007, by a vote of 7 ayes and 8 noes, the
Committee rejected an amendment by Senator Whitehouse and
Senator Feinstein to add a section that would have barred,
absent a determination by the President that a national
exigency exists and that an individual has information about a
specific and imminent threat, the use of appropriated funds for
interrogation methods by the CIA or other U.S. agencies that
are not explicitly authorized by the U.S. Army Field Manual on
Human Intelligence Collector Operations. The votes in person or
by proxy were as follows: Chairman Rockefeller--aye; Senator
Feinstein--aye; Senator Wyden--aye; Senator Bayh--aye; Senator
Mikulski--aye; Senator Feingold--aye; Senator Nelson--no;
Senator Whitehouse--aye; Vice Chairman Bond--no; Senator
Warner--no; Senator Hagel--no; Senator Chambliss--no; Senator
Hatch--no; Senator Snowe--no; Senator Burr--no.
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 May 24,
2007, 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 CHAMBLISS, HATCH,
AND BURR
The most important means that the Senate Select Committee
on Intelligence has for conducting effective oversight of the
Intelligence Community is the annual intelligence authorization
bill. Unfortunately, Congress has been unable to pass an
authorization bill for either fiscal year 2006 or 2007. In an
effort to break this cycle, the Committee worked hard to
include in its Chairman/Vice Chairman mark for our fiscal year
2008 intelligence authorization bill only those provisions that
had strong bi-partisan support. We were able to amend the
Chairman/Vice Chairman mark with a number of other provisions
that also received strong bi-partisan support. We call these
the ``Good Government'' provisions. There were, however, a few
amendments that the Committee adopted which will make final
passage of the bill more difficult because they are inherently
political in nature. We call these the ``Problem'' provisions.
GOOD GOVERNMENT PROVISIONS
Encouraging good government is a major theme of this year's
authorization bill. We supported or requested the inclusion of
several provisions that we believe will improve the efficiency
and accountability of the Intelligence Community (IC), while at
the same time, provide the Director of National Intelligence
(DNI) with the flexibility he needs to lead the IC. Section 314
will enhance the IC's ability to obtain quality systems in a
cost-efficient manner. It 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 316 requires the DNI to create a comprehensive
business enterprise architecture that will define all IC
business systems. This architecture will incorporate IC
financial, personnel, procurement, acquisition, logistics, and
planning systems into one interoperable and modernized system.
As a complement to the architecture required by Section 316,
the Committee included report language that requires the DNI to
submit a plan for the IC to move to a single, shared-services
financial system. In this way, the IC will be better positioned
to achieve sustainable, clean financial audits.
Sections 317 and 318 will operate together to address the
problem of cost overruns in major system acquisitions by the
IC. These provisions were modeled on the Nunn-McCurdy provision
in title 10 of the United States Code. They encourage greater
DNI involvement in the acquisitions process and enable the
Congressional intelligence committees to perform more effective
and timely oversight of cost increases.
Section 315 continues the theme of encouraging good
government. This section directs the DNI to conduct annual
personnel level assessments of each element of the IC that
capture the number and costs of personnel (and contractors) for
that element. In order to provide the DNI with maximum
flexibility as he addresses personnel management issues,
Section 405 allows the DNI, with the concurrence of the head of
the agency involved, to convert competitive service positions
in the IC to excepted service positions. It also enables the
DNI to grant authority (at the discretion of the agency head)
to fix excess pay for certain critical positions.
Finally, Section 401 provides the DNI with the authority to
conduct accountability reviews of elements and personnel of the
IC in relation to their significant failures or deficiencies.
We believe this section will encourage IC elements to address
their own internal failures or deficiencies--something they
apparently 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 believe that these measures will lead to a stronger,
more efficient, and more effective IC. Major systems
acquisition is an important issue for our warfighters and
intelligence collectors, especially as technological
capabilities evolve. It is also essential that the IC has
sufficient and appropriate personnel to do the demanding jobs
that are required to defeat our enemies.
PROBLEM PROVISIONS
A. President's daily briefs
Section 320 will likely be the most problematic provision
in this bill. This section requires the President to provide
the Congressional intelligence committees with all President's
Daily Briefs (PDBs) during the period beginning on January 20,
1997 and ending on March 19, 2003, that refer to Iraq or
otherwise address Iraq in any fashion. We anticipate that the
Administration will strongly oppose inclusion of this provision
in the final Intelligence Authorization bill. Also, we would
not be surprised if the inclusion of this provision in the
final bill results in a Presidential veto.
PDBs have never been provided to Congress by any
Administration. The White House has consistently maintained
that these documents are protected by executive privilege. The
DNI recently wrote to the Committee that the PDB:
is a unique intelligence product prepared
specifically for the President. It serves as a critical
element in Presidential communications and Executive
Branch deliberations associated with the formulation
and implementation of foreign policy. The contents of
the PDB reflect an ongoing dialogue between the
President and the [Intelligence Community] concerning
the national security of the United States. Restricting
access to the PDB is necessary to guarantee the candor
of this dialogue and to provide the President with the
freedom to explore alternatives in the process of
shaping policies.
Even if some of my colleagues do not agree with the
Administration's argument, Congress cannot magically legislate
away executive privilege. Section 320 ignores the negotiation
over access to information that has been ongoing between the
Executive and Legislative branches since our Constitution was
adopted. These negotiations have always been part of our
democraticsystem of checks and balances. Within that system,
Congress has many tools available to apply pressure to try to get the
information it wants from the Executive branch. Attempting to create a
statutory requirement to provide these privileged documents only
creates additional friction in the ongoing negotiations between the two
branches as they perform their constitutional roles.
Another problem with Section 320 is that it creates a false
impression that Congress did not get all of the intelligence on
Iraq that the President received before the war. Although
Congress does not receive the PDBs, we do receive a very
similar daily intelligence product and a variety of other
important documents such as the October 2002 National
Intelligence Estimate (NIE) on Iraq's Weapons of Mass
Destruction (WMD) programs. The bipartisan Robb-Silberman WMD
Commission examined the prewar PDBs regarding Iraq's WMD
programs and found that they contained language that was not
``markedly different'' from the intelligence received by
Congress, and were just as flawed. In fact, they noted that the
language in the PDBs was actually ``more alarmist'' and ``less
nuanced'' than the intelligence received by Congress, such as
the WMD NIE.
Proponents of Section 320 must know that neither this
Administration nor any other Administration will acquiesce to
providing privileged documents, yet they persist in demanding
them. We are starting to wonder whether these demands are more
theater than substance. If they actually received the PDBs they
would no longer be able to claim that the White House was
withholding information and they would no longer be able to
give the false impression that the PDBs contained different
intelligence on Iraq than the assessments provided to Congress.
The facts are clear--Congress had the same prewar
intelligence assessments on Iraq as the President. To keep
attempting to create the impression that they did not,
particularly when it prevents the intelligence authorization
bill from being passed into law, is irresponsible.
It is because this provision was passed as an amendment
that Senator Hatch, who joins Vice Chairman Bond in these
additional views, voted against the bill.
B. Notifications to Congress
Despite recent difficulties the Congress and the
Administration have had regarding the oversight of
intelligence, there has been a history of cooperation and
compromise between the two, particularly with respect to the
sharing with Congress of sensitive information regarding
intelligence sources and methods. While we believe that
briefings to all Members and staff are the preferred method of
notification of intelligence activities, the congressional
intelligence committees have historically acquiesced to
requests by the Executive branch to limit access on
particularly sensitive matters to the Chairman and Vice
Chairman. We support such limited notification when absolutely
necessary.
In contrast to the National Security Act of 1947, Section
312 imposes new requirements when the Executive branch
determines that disclosure to less than the full membership of
the Committee is appropriate. It 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 we believe in comprehensive oversight, we
also believe in working in comity with the Administration
regarding the President's authority to control access to the
nation's most sensitive national security programs when
necessary.
While we appreciate the majority's efforts to make the
provision less controversial and more tenable, we believe this
requirement will still increase tension between the Legislative
and Executive branches over information access. Rather than
ensure that Members receive the information they are seeking,
this provision could instead merely provoke a stalemate.
C. Declassification of the National Intelligence Program top line
Section 107 of the bill would require the declassification
of the aggregate amount of appropriations requested,
authorized, and appropriated for the NIP. A similar provision
was included in the Committee-passed version of the fiscal year
2007 Intelligence Authorization bill, and it received criticism
from the Administration. Senator Chambliss offered an amendment
to strike this provision of the bill during the markup.
Although I voted against his amendment and it was not accepted
by the Committee, I am sympathetic to Senator Chambliss's
argument that the declassification of the aggregate amounts
requested, authorized, and appropriated could possibly provide
our enemies with insight into the cancellation of or creation
of major intelligence initiatives. Such declassification might
become the source of political attacks and wasteful spending if
future administrations feel compelled to keep raising
intelligence budgets so as not to be accused of neglecting
national security. As the bill moves forward, we are open to
considering a number of options to improve this provision,
including the retroactive declassification of the NIP top line
to show the fluctuation of the IC budgets during the past
several decades, and the possibility of declassifying only the
aggregate amount appropriated by Congress.
D. Global climate change National Intelligence Estimate
We are also concerned about Section 321, which requires the
DNI to submit an NIE to Congress on the anticipated
geopolitical effects of global climate change and the
implications of such effects on the national security of the
United States. We recognize that many members on both sides of
the aisle believe that global climate change is a serious issue
which could have profound consequences. We also recognize that
the DNI has said he believes it is appropriate for the National
Intelligence Council (NIC) to prepare such an assessment and
that he has, in fact, directed the preparation of such an
assessment in the hope of precluding legislation on this issue.
Nonetheless, we believe that the production of an NIE on global
climate change is inappropriate for the IC.
Members who support Section 321 cite the national security
implications of global climate change. We agree that global
climate change could have national and global security
implications and that elements of the U.S. government should be
studying it, but the IC is not one of those elements. The job
of the IC is not to provide analysis on every issue which has
national security implications--it is not a think tank. The job
of the IC is to steal secrets and provide analysis of those
secrets. There are no secrets to analyze when it comes to
estimating thegeopolitical effects of an event 20 or more years
in the future as this bill requires. We do not even know what countries
or global groups will exist in 20 years.
This Committee is constantly reminded by various
Commissions, and the IC itself, that intelligence analysts are
overtasked, overworked, and do not have the time to devote to
long-term assessments, even on the countries and issues they
currently cover on a daily basis, such as terrorism,
proliferation, Iran, Iraq, and China. Which analysts are going
to be pulled from their current responsibilities to analyze the
implications of climate change? Preparing an estimate covering
all of the geopolitical implications of global climate change
would seem to require analysis on dozens of countries and
groups with global reach. Can we really afford to have these
analysts take a leave of absence from their current
responsibilities to prepare such an estimate, especially when
our nation is at war? We are not confident that terrorist
leaders will stop plotting against us while analysts take time
off to ponder the potential implications of global climate
change.
Finally, we take seriously the comments to our Committee
from the Office of the DNI that mandating preparation of NIEs
in legislation sets a harmful precedent. The DNI added that the
production of products on topics of interest should not be
reflected in law, particularly in a manner that impinges on the
flexibility of IC professionals to approach a task in the most
appropriate manner.
We agree with the DNI and believe that legislating the
production of NIEs--particularly when the legislation requires
them to be unclassified--sets a harmful precedent and further
politicizes the intelligence process. NIEs are supposed to be
confidential assessments, based on collected intelligence, to
inform senior policymakers. They are not supposed to provide
fodder for political debates. In the past few years we have
already seen an explosion of legislation demanding NIEs on
topics like Iraq and Iran. We also have seen the political
rhetoric and charges of politicization when those NIEs do not
offer the conclusions the requesters wanted. This is a
disturbing trend which we fear will only continue to worsen.
E. Foreign Intelligence Surveillance Act reporting requirements
Section 319 requires the Department of Justice (DoJ) to
provide copies of all decisions, orders, and opinions (and
associated pleadings) issued by the Foreign Intelligence
Surveillance Court (FISC) that involve significant construction
or interpretation of the Foreign Intelligence Surveillance Act
(FISA). We objected to this section on several grounds. First,
this section should have been considered in relation to
upcoming FISA modernization legislation as it directly changes
a reporting provision in the FISA statute.
Second, FISA already requires DoJ to provide the
congressional intelligence and judiciary committees with copies
of all decisions (but not orders or pleadings) that include a
significant construction or interpretation of FISA. It seems to
me that if a particular decision raises issues that the
Committee believes need to be further explored, then any
supporting documents can be requested at that time. Expanding
the FISA reporting requirement to a wholesale submission of
court orders and pleadings is simply unnecessary.
In addition, we believe it is the decisions, not the orders
or pleadings, that are essential to this Committee's oversight.
Court orders and pleadings relate to particular targets and
thus have limited value to this Committee's proper role in
overseeing the implementation of FISA. This Committee can get
better insight into significant search and surveillance issues
confronting the FISC or the Intelligence Community by examining
court decisions or opinions.
Finally, DoJ will be forced to use valuable resources to
search five years of FISA applications and orders to identify
any significant documents. Further resources will then have to
be expended by IC agencies to review those documents and redact
any sensitive material. At a time when IC resources are spread
thin, we should not be requiring extensive document searches
that we believe are unnecessary. In any event, DoJ's opinion
about this amendment should have been sought by the Committee
before it imposed this additional task.
Christopher S. Bond.
Saxby Chambliss.
Orrin G. Hatch.
Richard Burr.
ADDITIONAL VIEWS OF SENATOR FEINGOLD
The Fiscal Year 2008 Intelligence Authorization bill, along
with the accompanying classified annex, provides vital support
to our Intelligence Community, as well as the legal framework
and policy guidance that is so critical to our national
security. Indeed, congressional oversight has never been more
important, as our nation seeks a new way forward, with an
Intelligence Community focusing its resources on defending
America while operating within the rule of law and with the
informed support of the Congress.
One of the most important, as well as long overdue, areas
for congressional oversight is the CIA's detention and
interrogation program. I have opposed the program on moral,
legal and national security grounds. For that reason, while I
commend the Committee's increased scrutiny of the program, I
cannot support the Committee's report language stating that the
Congress must continue to evaluate whether having a separate
CIA program with different interrogation rules than those
applicable to military and law enforcement officers is
necessary, lawful and in the best interests of the United
States. It is my position that detainees should never be
interrogated except as authorized by the United States Army
Field Manual on Human Intelligence Collector Operations. I
voted in favor of the amendment offered by Senator Whitehouse,
which would have restricted the circumstances in which separate
interrogation techniques can be employed, as a step forward.
Another critical priority for congressional oversight is
government wiretapping of Americans, conducted under the
Foreign Intelligence Surveillance Act, and, illegally, under
the President's warrantless wiretapping program. When the
program was finally placed within the FISA process, an
opportunity arose for the Administration and the Congress to
move forward, under the law. Unfortunately, the Administration
has yet to demonstrate a real interest in doing so. First, the
Administration has sought broad new authorities unrelated to
keeping FISA up-to-date with new technology, and has pursued
these authorities while refusing to rule out further
surveillance activities entirely outside of the law. Second,
the Administration has sought to impose a set of impediments to
congressional oversight and responsible legislating. I am
pleased, therefore, that the Committee has stated clearly that,
before it can legislate, these impediments, including the
Administration's refusal to provide critical documents related
to the president's warrantless wiretapping program as well as
efforts to limit staff access to the program, must be removed.
I am also pleased that the Committee approved my amendment to
the bill requiring the Attorney General to provide to the
congressional intelligence and judiciary committees, in a
timely manner, all orders, decisions, and opinions of the FISA
Court and FISA Court of Review that contain significant
construction or interpretation of the law, as well as
associated pleadings. No responsible legislature can amend a
statute without knowing how the courts have interpreted it. The
Foreign Intelligence Surveillance Act is no exception.
For more than four years, the Administration failed to
inform the full congressional intelligence committees of the
warrantless wiretapping program. In doing so, the
Administration violated the National Security Act, which allows
restricted notification to the ``Gang of Eight'' only in
certain limited cases involving covert action. In light of this
abuse of the limited notification provision, I was pleased to
co-sponsor an amendment offered by Senator Feinstein to ensure
that all members of the Committee receive, at a minimum,
summary information about programs that the Administration has
sought to limit to the Chairman and Vice Chairman.
Another area about which the Congress needs more
information is the large databases of information, including on
American citizens, collected by the government, both inside and
outside the Intelligence Community. The Committee has requested
that the Secretary of the Treasury, in coordination with the
Director of National Intelligence, report on databases of
financial information and information on financial transactions
maintained at the Office of Terrorism and Financial
Intelligence at the Department of the Treasury, including on
access to and use of such databases, dissemination of
information and minimization requirements and issues related to
privacy and United States person information. This is an
important step in Congress's efforts to develop a comprehensive
understanding of all such programs throughout the government.
I have expressed concern about broad new arrest authorities
granted to protective personnel at the CIA and NSA that have
been included in previous intelligence authorization bills
reported by the Committee. The Administration has yet to
present a case that these new authorities are necessary. While
I am disappointed that these provisions were included in this
year's bill, I am pleased that the Committee's report clearly
indicates that these authorities are not to be used except to
protect the specific individuals to whom those CIA and NSA
personnel are assigned, and that Congress is to be kept fully
informed of how these authorities are used.
Finally, I was pleased to cosponsor two amendments offered
by the Vice Chairman to ensure greater accountability and cost-
savings in the Intelligence Community. The first granted the
Director of National Intelligence authorities to conduct
accountability reviews of significant failures or deficiencies
within the Intelligence Community. The second requires the DNI
to justify to the Congress cost overruns in major system
acquisitions exceeding 20 percent, and for the President to
justify cost overruns over 40 percent. These provisions are
important steps in the ongoing effort to reform our
Intelligence Community and demonstrate the Committee's
bipartisan commitment to ensuring that our nation is defended
effectively and efficiently and with real accountability for
financial mismanagement and other wrongdoing.
Russell D. Feingold.
ADDITIONAL VIEWS OF SENATOR WHITEHOUSE
I strongly support provisions contained in this legislation
that I believe will enhance the accountability of managers in
the Intelligence Community. In my short time on the Committee,
I have become troubled by the apparent lack of accountability I
have observed in the management of certain major Intelligence
Community acquisition programs which have experienced enormous
cost overruns and significant scheduling delays. The
Intelligence Community is our nation's early warning system
against large and increasingly complex threats such as
terrorism and the proliferation of weapons of mass destruction.
The nature and extent of the threats facing the United States
today requires more than ever that we insure that we get the
most value possible from our nation's investment in
intelligence. Yet the secrecy these programs require to be
effective insulates them from many ordinary channels of
accountability.
This legislation contains provisions that provide the
Director of National Intelligence with the authority to conduct
accountability reviews of significant failures or deficiencies
within the Intelligence Community as well as creates a
mechanism that requires the Director of National Intelligence
to submit annual reports for each major system acquisition by
the Intelligence Community. In addition, the Classified Annex
to this legislation includes a provision I sponsored related to
the National Reconnaissance Office (NRO), which designs, builds
and operates the nation's reconnaissance satellites. My
proposal directs the NRO Inspector General to conduct a review
of the accountability practices employed for certain NRO
programs. It is my hope that this review will lead to the
incorporation of accountability mechanisms into the NRO's
program management processes.
During the Committee's mark-up of this legislation, I
offered an amendment that prohibits the use of funds for
interrogations conducted by the Central Intelligence Agency--or
any other element of the U.S. Government--that differs from the
techniques listed in the U.S. Army Field Manual on Human
Intelligence Collector Operations. My amendment makes an
exception if the President determines that ``there is an
immediate national exigency, and that there are compelling
reasons to believe that the individual has information about a
specific and imminent threat related to that national
exigency.''
I am deeply concerned that so-called enhanced interrogation
techniques (EITs) may provide unreliable information and that
their use would undermine our nation's moral standing in the
world. On June 26, 2003, President Bush issued a statement for
United Nations International Day in Support of Victims of
Torture in which he said, ``[t]he United States is committed to
the world-wide elimination of torture and we are leading this
fight by example.'' I don't believe that the alleged use of
these EITs has placed our nation in a leadership position in
this area. In fact, I believe that the prisoner abuse scandal
in Abu Ghraib, for example, has done a great deal to damage
America's standing in the world. And publicized allegations of
abuse related to the CIA interrogation program raise further
concern.
The Army Field Manual on Human Intelligence Collector
Operations provides interrogation procedures adhered to by all
branches of the U.S. military. General David Petraeus,
Commander of the Multi-National Force in Iraq wrote in a letter
to U.S. military forces in Iraq on May 10, 2007:
Some may argue that we would be more effective if we
sanctioned torture or other expedient methods to obtain
information from the enemy. They would be wrong. Beyond
the basic fact that such actions are illegal, history
shows that they also are frequently neither useful nor
necessary. Certainly, extreme physical action can make
someone ``talk;'' however, what the individual says may
be of questionable value. In fact, our experience in
applying the interrogation standards laid out in the
Army Field Manual (2-22.3) on Human Intelligence
Collector Operations that was published last year shows
that the techniques in the manual work effectively and
humanely in eliciting information from detainees.
The concern has also been raised that a determined detainee
will be able to withhold critical, time-sensitive, actionable
intelligence that could prevent an imminent, catastrophic
attack on the United States. That is why my amendment allows an
exception from the limitation on the use of appropriated funds,
when the President determines that there is ``an immediate
national exigency, and that there are compelling reasons to
believe that the individual has the information about a
specific and imminent threat related to that national
exigency.''
The full text of my amendment, co-sponsored by Senator
Dianne Feinstein, is as follows:
Absent a determination by the President that there is
an immediate national exigency, and that there are
compelling reasons to believe that the individual has
information about a specific and imminent threat
related to that national exigency, none of the funds
made available pursuant to this Act or pursuant to any
authorization of appropriations in this Act may be used
for the interrogation of an individual by the Central
Intelligence Agency or any other department, agency, or
entity of the United States in a manner that differs
from treatment or techniques of interrogation
explicitly authorized by, and listed in, the United
States Army Field Manual on Human Intelligence
Collector Operations.
Sheldon Whitehouse.
ADDITIONAL VIEWS OF SENATOR WARNER
The annual intelligence authorization bill is vital
legislation that authorizes the Intelligence Community's
efforts against national security and provides legislative
tools and strategic guidance to reform the Intelligence
Community. In short, the authorization bill supports and
enhances the Intelligence Community's capabilities to protect
the United States, its interests, and its allies. There are
numerous provisions in this year's bill which advance those
efforts.
I offer these additional views to discuss one provision
which I am particularly pleased to support. Section 321, an
amendment which I cosponsored, requires the Director of
National Intelligence (DNI) to submit to Congress a National
Intelligence Estimate (NIE) on the anticipated geopolitical
effects of global climate change and the implications of such
effects on the national security of the United States.
The NIE will use the fourth assessment report of the United
Nations Intergovernmental Panel on Climate Change (IPCC) to
illustrate the impacts of global climate change. The IPCC
report predicted that global warming will increase 0.72 degree
Fahrenheit during the next two decades with current emission
trends. This projected increase of 0.72 degree Fahrenheit in
two decades is a cause for concern considering that the
National Oceanic and Atmospheric Administration said the
average annual global temperature increased approximately 1.0
degree Fahrenheit from the start of the 20th century.
The NIE required by Section 321 will focus on the effects
global climate change would have on U.S. national security and
strategic economic interests. Changes resulting from global
climate change present potentially wide-ranging threats to the
United States that may require military, diplomatic, financial,
and other national responses. It is the Intelligence
Community's responsibility to prepare Executive and Legislative
Branch policymakers for such possibilities.
Section 321 considered the views of the Director of
National Intelligence who told the Committee that ``it is
entirely appropriate for the NIC to prepare an assessment on
the geopolitical and security implications of global climate
change'' and asked that the task of examining the implications
be worked in coordination with experts from the National
Academy of Sciences, the national laboratories, and the
National Oceanographic and Atmospheric Administration. This
provision calls for that coordination and does not ask the
Intelligence Community to reach beyond its capabilities to
explore the sources or causes of global climate changes or
specific actions that can mitigate such changes.
In fact, the DNI has already tasked the NIC to produce an
assessment on this issue. This legislation allows the DNI to
determine whether the requirement to produce a NIE would be
duplicative of the current NIC effort if both products would
have the same drafting and review procedures. Furthermore, such
an estimate will not require the diversion of any collection
assets from other intelligence priorities.
In my 28 years in the Senate, I have focused above all on
issues of national security, and I see the problem of climate
change as fitting in with that focus. As a number of retired
flag officers, including Generals Zinni and Sullivan, reported
last month, global climate change poses a destabilizing threat
to US military operations, heightens global tensions, and
strains long-standing international alliances. As the Senate
proceeds to legislate on climate change, it is vitally
important that we receive the Intelligence Community's
comprehensive view on the problem.
My own view as a senior member of the Senate Committee on
the Environment and Public Works, which has conducted a number
of hearings this year on the issue, is that the national
consensus is moving beyond the debate over whether global
warming is real and occurring, and whether human activity is
contributing to the change in our climate.
I accept the fact that increased greenhouse gas emissions,
resulting from human activity, is changing our global
environment. I concur that we must now begin to devise a
domestic program and I have joined by cosponsoring the Biden-
Lugar Resolution to urge us to participate in the international
dialogue to reduce these emissions.
While I have not personally decided on any specific
legislative approach on global climate change, the complexity
of the problem requires careful thought to ensure fairness to
consumers and to the manufacturing sector of our economy. The
federal government must take a leadership role in addressing
this national and international problem, particularly given the
Supreme Court's ruling earlier this year that confirmed the
federal government's obligation under the law to regulate
greenhouse gas emissions.
Without federal leadership, an ineffective patchwork of
regulations would develop in each of the 50 states, and this
would serve the needs neither of the environment nor business.
Any federal program, however, must allow for an economy-wide
approach that incorporates market-based flexibility, provides
for a measure of federal investment in new technologies,
includes cost-containment mechanisms, and has environmental
integrity. Most important, the federal government must ensure
international participation by developed and developing
nations.
In sum, we must be careful in the Congress to be sure that
we get it right as we move to legislate on global climate
change, and this NIE will be critical in providing the
comprehensive views of the Intelligence Community on the issue.
John Warner.
