[Senate Report 111-223]
[From the U.S. Government Publishing Office]
Calendar No. 467
111th Congress Report
SENATE
2d Session 111-223
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INTELLIGENCE AUTHORIZATION ACT FOR FISCAL YEAR 2010
_______
July 19, 2010.--Ordered to be printed
_______
Mrs. Feinstein, from the Select Committee on Intelligence, submitted
the following
R E P O R T
together with
ADDITIONAL VIEWS
[To accompany S. 3611]
The Select Committee on Intelligence, having considered an
original bill (S. 3611) to authorize appropriations for fiscal
year 2010 for intelligence and intelligence-related activities
of the United States Government, the Community Management
Account, and the Central Intelligence Agency Retirement and
Disability System, and for other purposes, reports favorably
thereon and recommends that the bill do pass.
Classified Annex to the Committee Report
The classified nature of United States intelligence
activities precludes disclosure by the Committee of details of
its budgetary recommendations. The Committee has prepared a
classified annex to this report that contains a classified
Schedule of Authorizations. The Schedule of Authorizations is
incorporated by reference in the Act and has the legal status
of public law. The classified annex is made available to the
Committees of Appropriations of the Senate and the House of
Representatives and to the President. It is also available for
review by any Member of the Senate subject to the provisions of
Senate Resolution 400 of the 94th Congress (1976).
History of the Bill
This is the second report by the Committee of an
Intelligence Authorization Act for Fiscal Year 2010.
On July 22, 2009, the Committee unanimously reported S.
1494 with an accompanying report, S. Rep. 111-55 (2009). With
amendments to address several concerns of other committees, the
Senate passed S. 1494 by unanimous consent on September 16,
2009. 155 Cong. Rec. S9447-9480 (daily ed.). On September 17,
2009, S. 1494 was sent to the House and held there at the desk,
where it remains today.
On June 26, 2009, the House Permanent Select Committee on
Intelligence reported its proposed Fiscal Year 2010
Authorization, H.R. 2701, with an accompanying report, H.R.
Rep. 111-186 (2009). On February 26, 2010, the House passed
H.R. 2701 with amendments by a vote of 235 to 168. 156 Cong.
Rec. H936-951 (daily ed.).
On March 15, 2010, the Director of the Office of Management
and Budget (OMB) sent to the Intelligence Committees a letter
setting forth the Administration's views on S. 1494 and H.R.
2701. The letter identified thirteen serious concerns with
provisions in either or both bills. The letter stated that
three of these were so serious that the President's senior
advisors would recommend that he veto the bill if they were
included in a bill presented for his signature. The veto-threat
items were proposed amendments on notifications to Congress of
sensitive intelligence matters and covert actions, amendments
on the authority of the Government Accountability Office to
conduct audits, investigations, and evaluations of elements of
the Intelligence Community, and provisions on the amounts
authorized for the National Intelligence Program. OMB provided
in classified correspondence additional details about its
concerns. On March 15, 2010, the Department of Justice also
transmitted to the committees a letter stating its concerns
about the constitutionality of various provisions in the House
and Senate bills.
The committees began a three-month process of reconciling
the House and Senate bills and addressing the Administration's
concerns in order to produce a bill which, as a result of a
conference or an exchange of messages between the House and
Senate, would in the view of the committees' leadership make a
substantial contribution to national security and be able to
pass the two chambers and be signed by the President. The
process involved extensive meetings and exchanges of drafts
with and among representatives of the leaders of the two
committees and the Administration.
On June 10, 2010, the OMB Director wrote to the leadership
of the committees that the Administration had reviewed the
proposed House-Senate agreement and, on the assumption there
would be no material changes in either the unclassified bill or
the classified annex, that the President's senior advisors had
determined that they would recommend that he sign the bill if
it is presented for his signature. Among the accommodations
specifically noted in the OMB letter were those responding to
the Administration's concerns on congressional notification and
the authority of the Comptroller General.
Although fiscal year 2010 has entered its final quarter,
the significance of the legislative provisions of the fiscal
year 2010 bill is not time limited. Its provisions on
authorities and oversight will have importance for years to
come.
Notwithstanding the opportunity to produce the first
intelligence authorization in five years, no conference has yet
been requested on the bills that have passed the Senate and
House. Accordingly, both S. 1494 and H.R. 2701 remain, as of
now, in the House of Representatives.
In order to provide a public record of the agreement on the
Intelligence Authorization Act for Fiscal Year 2010, and to
urge Congress to complete action on this needed legislation,
the Committee has determined to report the agreement as a new
measure that the President's senior advisors will recommend
that he sign into law as soon as he is provided the opportunity
to do so. The only substantive change from the text reviewed by
the Administration for the OMB letter of June 10, 2010, is
described in the sectional analysis for Section 333(c).
Section-by-Section Analysis and Explanation
The following is a section-by-section analysis and
explanation of the Intelligence Authorization Act for Fiscal
Year 2010 that is being reported by the Committee.
The Chairman and Vice Chairman of the Committee recommended
the provisions of this bill to the Committee as a
reconciliation of a bill (S. 1494) that passed the Senate on
September 16, 2009, and the text of a bill (H.R. 2701) passed
by the House on February 26, 2010. As described above, the
reconciliation of the Senate and House bills is the product of
communications with the Executive Branch and the leadership of
the Permanent Select Committee on Intelligence of the House of
Representatives.
This section-by-section analysis describes the differences
between S. 1494, H.R. 2701, and this Senate bill, except for
clerical corrections, conforming changes, and minor drafting
and clarifying changes.
TITLE I--BUDGET AND PERSONNEL AUTHORIZATIONS
Section 101. Authorization of appropriations
Section 101 authorizes appropriations for fiscal year 2010
for the intelligence and intelligence-related activities of a
list of United States Government departments, agencies, and
other elements. Section 101 is identical to Section 101 of S.
1494 and to Section 101 of the H.R. 2701.
Section 102. Classified Schedule of Authorizations
Section 102 provides that the details of the amounts
authorized to be appropriated under Section 101 for
intelligence and intelligence-related activities for fiscal
year 2010, and (subject to Section 103) the personnel levels
authorized for fiscal year 2010, are contained in the
classified Schedule of Authorizations. The Schedule of
Authorizations will be made available to the Committees on
Appropriations of the Senate and House of Representatives and
to the President.
Section 102 is identical to Section 102 of S. 1494. Section
102 of H.R. 2701 had provided that personnel authorizations for
the Intelligence Community would be in terms of personnel
ceilings, as in prior intelligence authorizations, rather than
as personnel levels expressed as full-time equivalent
positions, as in S. 1494. This bill followed the Senate in this
regard.
The use of full-time equivalent positions will allow
Intelligence Community elements to plan for and manage its
workforce based on overall hours of work, rather than number of
employees, as a truer measure of personnel levels. This
approach is consistent with general governmental practice and
will provide the Director of National Intelligence (DNI) and
Congress with a more accurate measurement of personnel levels.
For example, it will enable Intelligence Community 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.
Section 103. Personnel ceiling adjustments
Section 103 provides procedures to enhance the flexibility
of the DNI to manage the personnel levels of the Intelligence
Community.
Section 103(a) allows the DNI to authorize employment of
civilian personnel in excess of the number of full-time
equivalent positions authorized under Section 102 by an amount
not to exceed three percent of the total limit applicable to
each Intelligence Community element. Before the DNI may
authorize this increase, the DNI must determine that the action
is necessary to the performance of important intelligence
functions and notify the congressional intelligence committees.
Section 103 of S. 1494 had provided that this authority could
extend to five percent. Section 103 of H.R. 2701 had set the
additional amount at three percent. The agreement of three
percent in part reflects the fact that employment above the
number of full-time equivalent positions authorized under
Section 102 is unlikely given the late date during the fiscal
year of this bill.
Section 103(b) establishes authority that will enable the
DNI to reduce the number of Intelligence Community contractors
by providing the flexibility to add a comparable number of
government personnel to replace those contractor employees.
Section 103(b) accomplishes this by permitting the DNI to
authorize employment of additional full-time equivalent
personnel if the head of an element in the Intelligence
Community determines that activities currently being performed
by contractor employees should be performed by government
employees, and the DNI agrees with the determination.
Section 103(c) requires the DNI to establish guidelines
that govern, for each element of the intelligence community,
the treatment under the personnel levels authorized under
Section 102(a), of a variety of part-time arrangements. These
include, but are not limited to, the circumstances set forth in
subsection 103(c): student or trainee programs; re-employment
of annuitants in the National Intelligence Reserve Corps; joint
duty rotational assignments; and other full-time or part-time
positions.
Subsection 103(d) provides for notifications to the
congressional intelligence committees of the exercise of
authority under subsections 103(a) and 103(b). Subsections
103(b) through (d) are identical to subsections 103(b) through
(d) of S. 1494. H.R. 2701 did not have provisions similar to
subsections (b) and (c).
Section 104. Intelligence Community Management Account
Section 104 authorizes the sum of $710,612,000 in fiscal
year 2010 for the Intelligence Community Management Account of
the Director of National Intelligence. The Intelligence
Community Management Account is part of the Community
Management Account. The section authorizes 822 full-time
equivalent personnel for the Intelligence Community Management
Account, who may be either permanent employees or individuals
detailed from other elements of the United States Government.
Section 104 also authorizes additional funds and personnel in
the classified Schedule of Authorizations for the Community
Management Account. The DNI may use the authorities in Section
103 to adjust personnel levels within the Intelligence
Community Management Account, subject to the limitations in
that section.
Section 104 is similar to Section 104 of S. 1494 and
Section 104 of H.R. 2701.
Section 105. Restriction on conduct of intelligence activities
Section 105 provides that the authorization of
appropriations by the Act shall not be deemed to constitute
authority for the conduct of any intelligence activity that is
not otherwise authorized by the Constitution or the laws of the
United States. Section 105 is identical to Section 105 of S.
1494 and Section 106 of H.R. 2701.
Section 106. Continuation of prior authorization of funds for certain
intelligence activities
Section 106 amends Section 8079 of the Department of
Defense Appropriations Act, 2010 (Pub. L. No. 111-118; 123
Stat. 3446) in order that the authorization of funds
appropriated by that Act continue notwithstanding the enactment
of the Intelligence Authorization Act for Fiscal Year 2010. A
similar provision is included in section 301 of H.R. 4899, the
emergency supplemental appropriations act for fiscal year 2010,
as passed by the Senate.
TITLE II--CENTRAL INTELLIGENCE AGENCY RETIREMENT AND DISABILITY SYSTEM
Section 201. Authorization of appropriations
Section 201 authorizes appropriations of $290,900,000 for
the Central Intelligence Agency Retirement and Disability Fund.
Section 201 is identical to Sections 201 of S. 1494 and H.R.
2701.
Section 202. Technical modification to mandatory retirement provision
of Central Intelligence Agency Retirement Act
Section 202 updates the Central Intelligence Agency
Retirement Act to reflect the use of pay levels within the
Senior Intelligence Service program, rather than pay grades, by
the Central Intelligence Agency (CIA). Section 202 is identical
to Section 202 of S. 1494 and similar to Section 512 of H.R.
2701.
TITLE III--GENERAL INTELLIGENCE COMMUNITY MATTERS
Subtitle A--Personnel Matters
Section 301. Increase in employee compensation and benefits authorized
by law
Section 301 provides that funds authorized to be
appropriated by this Act for salary, pay, retirement, and other
benefits for federal employees may be increased by such
additional or supplemental amounts as may be necessary for
increases in compensation or benefits authorized by law.
Section 301 is identical to Section 301 of S. 1494 and Section
301 of H.R. 2701.
Section 302. Enhanced flexibility in non-reimbursable details to
elements of the Intelligence Community
Section 302 expands from one year to up to two years the
length of time that United States Government personnel may be
detailed to elements of the Intelligence Community from other
parts of the federal government on a reimbursable basis or on a
non-reimbursable basis under which the employee continues to be
paid by the home agency. To utilize this authority, the joint
agreement of the head of the Intelligence Community element and
the head of the detailing element is required. As explained by
the DNI, this authority will provide flexibility for the Office
of the Director of National Intelligence (ODNI), for example,
to receive support from other elements of the Intelligence
Community or other elements of the United States Government for
community-wide activities where both the home agency and the
ODNI would benefit from the detail.
Section 302 of S. 1494 would have expanded the time
available for reimbursable or non-reimbursable details to three
years. Section 303 of H.R. 2701 allowed reimbursable or non-
reimbursable details for periods not to exceed two years. While
providing in this bill only for a two-year maximum for
reimbursable or non-reimbursable details to the Intelligence
Community, the Committee believes that the question of three
year details merits further study.
Section 303. Pay authority for critical positions
Section 303 adds a new subsection (s) to section 102A of
the National Security Act of 1947 (50 U.S.C. 403-1) to provide
enhanced pay authority for critical positions in portions of
the Intelligence Community where that authority does not now
exist. Subsection 102A(s) allows the DNI, in coordination with
the Director of the Office of Personnel Management (OPM) and
the Director of the Office of Management and Budget (OMB), to
authorize the head of a department or agency with an
Intelligence Community element to fix a rate of compensation in
excess of applicable limits for a position that requires an
extremely high level of expertise and is critical to
accomplishing an important mission, to the extent necessary to
recruit or retain an individual extremely well qualified for
such position. A rate of pay higher than Executive Level II
would require written approval of the DNI. A rate of pay higher
than Executive Level I would require written approval of the
President in response to a DNI request.
Section 303 is identical to the corresponding portion of
Section 303 of S. 1494, with an additional notification
requirement when the authority is exercised by the employing
department or agency. H.R. 2701 did not have a comparable
provision. The section of S. 1494 that contained this pay
authority also would have provided additional authority to
enable the DNI to harmonize personnel rules in the Intelligence
Community. It would have enabled the DNI, with the concurrence
of a department or agency head, to convert competitive service
positions and incumbents within an Intelligence Community
element to excepted service positions. It also would have
granted authority to the DNI to authorize Intelligence
Community elements--with concurrence of the concerned
department or agency heads 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 Intelligence
Community element. The Committee agreed to study these
additional provisions further and not include them in this
compromise.
Section 304. Award of rank to members of the Senior National
Intelligence Service
Section 304 adds a new subsection (t) to Section 102A of
the National Security Act of 1947 (50 U.S.C. 403-1). Subsection
102A(t) authorizes Presidential Rank awards to members of the
Senior National Intelligence Service (SNIS) and other
Intelligence Community senior civilian officers not already
covered by such a rank award program.
According to the DNI, the authority to issue Presidential
Rank Awards was originally enacted in 1978 as a program of the
Senior Executive Service (SES) to honor high-performing senior
career employees. The CIA and other elements of the
Intelligence Community were exempted by statute from the SES,
and thus not eligible for Presidential Rank Awards. Legislation
enacted since 1978 has opened the eligibility for Presidential
Rank Awards to senior civilian officers of exempt agencies,
including the Federal Bureau of Investigation (FBI), the Drug
Enforcement Administration, and members of the Defense
Intelligence Senior Executive Service.
Section 304 would authorize the President to recognize
members of the SNIS and other senior civilian officers not
already covered by such a program who deserve such recognition
with Presidential Rank. This authority must be used in a manner
consistent with rank awards conferred on other senior
executives of the Executive Branch, and subject to regulations
that protect the identity of such individual as a member or
officer of the intelligence community, if necessary.
Section 304 is based on Section 304 of S. 1494, which was
modified to clarify the application of the provision to
officers of the Intelligence Community who are undercover. H.R.
2701 had no comparable provision.
Section 305. Annual personnel level assessments for the intelligence
community
Section 305 creates a new Section 506B in Title V of the
National Security Act of 1947 (50 U.S.C. 413 et seq.), an
oversight mechanism that requires the DNI to conduct, in
consultation with the head of the element of the Intelligence
Community concerned, an annual personnel level assessment for
each of the elements within the Intelligence Community and
provide those assessments with the submission of the
President's budget request each year. Section 305 is a new
oversight mechanism that will allow both the Executive branch
and Congress to better oversee personnel growth in the
Intelligence Community.
The assessment consists of three parts. First, the
assessment must provide basic personnel and core contract
personnel information for the concerned element of the
Intelligence Community (with civilian personnel expressed as
full-time equivalent positions) for the upcoming fiscal year.
It requires that the data be compared against current fiscal
year and historical five-year personnel numbers and funding
levels. The term ``core contractor'' is not defined in Section
305, but is intended to include those independent contractors
or individuals employed by industrial contractors who augment
civilian and military personnel by providing direct support to
Intelligence Community elements--as opposed to commodity
contractors (e.g., those working on the production or delivery
of end-use items such as satellites) or commercial contractors
(e.g., those providing services to Intelligence Community
facilities, such as janitorial, landscaping, or food service
personnel).
Second, the assessment must include a written justification
for the requested funding levels. This requirement is necessary
to ensure that any personnel cost cuts or increases are fully
documented and justified. Third, the assessment must contain a
statement by the DNI that, based upon current and projected
funding, the element concerned will have the internal
infrastructure to support the requested agency and core
contract personnel levels, training resources to support agency
personnel levels, and sufficient funding to support the
administrative and operational activities of the requested
agency and contract personnel levels.
To accommodate Executive branch concerns about the
sensitivity of information concerning ongoing investigations,
this bill does not include a requirement that the assessment
contain a list of all contract personnel who have been the
subject of an investigation by the inspector general of any
element of the Intelligence Community during the previous
fiscal year or who are or have been the subject of an
investigation during the current fiscal year. The Committee
expects the congressional intelligence committees to be
notified under other provisions of law when such investigations
involve a significant matter.
The Committee believes that the personnel level assessment
tool is necessary for the Executive branch and Congress to
fully understand the consequences of managing the Intelligence
Community's personnel levels, particularly in light of a
transition to managing personnel as full-time equivalents
subject to available funds. In recent years, the congressional
intelligence committees have been concerned that the sharp
growth in personnel numbers since the terrorist attacks on
September 11, 2001, is unsustainable. In particular, when
overall budgets do not keep pace with inflation and decline in
real terms, personnel costs as a percentage of the budget
increase each year and divert funds from operations and
modernization.
Another longstanding concern of the congressional
intelligence committees has been the Intelligence Community's
reliance upon contract personnel to meet mission requirements.
The Committee believes that the annual personnel level
assessment tool will assist the DNI and the elements of the
Intelligence Community in arriving at an appropriate balance of
contract personnel and permanent government employees.
Section 305 is similar to Section 305 of S. 1494 and
Section 332 of H.R. 2701.
Section 306. Temporary personnel authorizations for critical language
training
Section 306 addresses the continuing lack of critical
language-capable personnel in the Intelligence Community and
the difficulty of sending employees to get critical language
training to remedy this shortage. Section 306 gives the DNI the
authority to transfer full-time equivalent positions to
elements of the Intelligence Community on a temporary basis, to
enable these elements to replace individuals who are
participating in long-term language training, or to accept
temporary transfers of language-capable employees from other
elements of the Intelligence Community. This provision
complements Section 103, which authorizes the DNI to issue
guidance on the treatment of personnel under personnel
ceilings, to include exemptions from personnel ceilings for
personnel engaged in long-term full-time training. Section 306
authorizes an additional 100 full-time equivalent positions for
the ODNI and notes that these positions are to be used
specifically to implement the new authorities granted by this
section.
Section 306 refers to ``critical language training,''
rather than ``foreign language training.'' The Committee
understands that this phrasing will permit the DNI to use this
new authority in situations where an employee of the
Intelligence Community who speaks English as a second language
needs further training in English in order to comprehend
particular complex or technical subjects. The DNI is required
to submit an annual report to the congressional intelligence
committees on the use of this authority. Section 306 is based
on Section 306 of S. 1494. H.R. 2701 did not include a
comparable provision.
Section 307. Conflict of interest regulations for intelligence
community employees
Section 307 adds a provision to section 102A of the
National Security Act of 1947 (50 U.S.C. 403-1) directing the
DNI, in consultation with the Director of the Office of
Government Ethics, to issue regulations prohibiting an officer
or employee of an element of the intelligence community from
engaging in outside employment if such employment creates a
potential conflict of interest. To the extent that the DNI
considers regulations of the Office of Government Ethics on
this issue to be adequate, the DNI may incorporate and
supplement such regulations as appropriate. Section 307 also
requires an annual report to the congressional intelligence
committees describing all outside employment that was
authorized by the head of an element of the intelligence
community during the preceding calendar year.
Section 307 is based on Section 305 of H.R. 2701. S. 1494
did not have a comparable provision. The House provision would
also have prohibited an officer or employee of an element of
the intelligence community from personally owning or
effectively controlling an entity that markets or sells for
profit the use of knowledge or skills that such officer or
employee acquires or makes use of while carrying out the
employee's official duties. The Committee expects the DNI to
consider whether to include such a prohibition in the
regulations issued pursuant to this section.
Subtitle B--Education Matters
Section 311. Permanent authorization for the Pat Roberts Intelligence
Scholars Program
Section 311 provides a permanent authorization for the Pat
Roberts Intelligence Scholars Program (PRISP), which was
originally authorized as a pilot program in Section 318 of the
Intelligence Authorization Act for Fiscal Year 2004 and has
continued under year-to-year appropriations. The purpose of the
PRISP is to provide funds for selected students or former
students to continue academic training, or be reimbursed for
academic training previously obtained, in areas of
specialization where the Intelligence Community is deficient or
likely to be deficient in the future. Section 311 would also
authorize the use of funds to allow students participating in
the program to receive funds for books, travel expenses and a
stipend, and other expenses reasonably appropriate to carry out
the program.
The PRISP has provided education funds to over 800
individuals since its inception in 2004, with an attrition rate
of less than one percent of program participants. Intelligence
agencies have been supportive of the program as it provides
them the flexibility to compete effectively with the private
sector to recruit individuals who possess critical skills
sought by the Intelligence Community. Section 311 is similar to
Section 311 of S. 1494 and H.R. 2701.
Section 312. Modifications to the Louis Stokes Educational Scholarship
Program
Section 16 of the National Security Agency Act of 1959 (50
U.S.C. 402 note) authorizes the National Security Agency (NSA)
to establish an undergraduate training program to facilitate
recruitment of individuals with skills critical to its mission.
The program is known as the Stokes Educational Scholarship
Program, named for Representative Louis Stokes, a former
chairman of the Permanent Select Committee on Intelligence of
the U.S. House of Representatives.
Section 312 is intended to expand and strengthen the Stokes
program. Section 312(a) expands the Stokes program to authorize
the inclusion of graduate students. Section 312(d) amends
Section 16 to permit the NSA Director to protect intelligence
sources and methods by deleting a requirement that NSA publicly
identify to educational institutions students who are NSA
employees or training program participants. Deletion of this
disclosure requirement will enhance the ability of NSA to
protect personnel and prospective personnel and to preserve the
ability of training program participants to undertake future
clandestine or other sensitive assignments for the Intelligence
Community.
The Committee recognizes that nondisclosure is appropriate
when disclosure would threaten intelligence sources or methods,
would endanger the life or safety of the student, or would
limit the employee's or prospective employee's ability to
perform intelligence activities in the future. Notwithstanding
the deletion of the disclosure requirement, the Committee
expects NSA to continue to prohibit participants in the
training program from engaging in any intelligence functions at
the institutions they attend under the program. See H.R. Rep.
No. 99-690, Part I (1986) (``NSA employees attending an
institution under the program will have no intelligence
function whatever to perform at the institution.'').
Section 312 is also intended to make the program more
effective by clarifying that ``termination of employment''
includes situations where employees fail to maintain
satisfactory academic standards. According to the DNI, failure
to maintain satisfactory academic performance has always been
grounds for default resulting in the right of the government to
recoup educational costs expended for the benefit of the
defaulting employee. Section 312(b) would also expand the
program by authorizing NSA to offer participation in the Stokes
program to individuals who are not current federal employees.
Finally, Section 312(e) authorizes other intelligence
agencies to establish undergraduate or graduate training
programs for civilian employees or prospective civilian
employees that are similar to programs under Section 16 of the
National Security Agency Act. Section 312 is similar to Section
312 of S. 1494 and Section 313 of H.R. 2701.
Section 313. Intelligence officer training program
Section 313 authorizes the Intelligence Officer Training
Program (IOTP), which builds on two pilot programs that were
authorized in previous years: the NSA ``Pilot Program on
Cryptologic Service Training,'' described in Section 922 of the
Defense Authorization Act for Fiscal Year 2005, Pub. L. No.
108-375 (2004) (50 U.S.C. 402 note), and the Director of
Central Intelligence pilot program ``Improvement of Equality of
Employment Opportunities in the Intelligence Community,'' under
Section 319 of the Intelligence Authorization Act for Fiscal
Year 2003, Pub. L. No. 108-177 (2003) (50 U.S.C. 403 note). The
purpose of the IOTP is to encourage the preparation,
recruitment, and retention of civilian personnel for careers in
the Intelligence Community. It is also to help ensure that the
Intelligence Community can better recruit and retain a
workforce that is ethnically and culturally diverse so that it
can accomplish its critical national security mission.
The IOTP is to consist of two parts. First, the program
would provide financial assistance to individuals through
existing Intelligence Community scholarship authorities to
pursue studies in critical language, analytic, scientific,
technical, or other skills necessary to meet current or
emerging needs of the Intelligence Community. Second, building
on the ODNI's successful Centers for Academic Excellence
program, the IOTP would solicit colleges and universities from
across the country to apply for grants on a competitive basis
to implement academic programs that will help students develop
the critical skills needed for careers in the Intelligence
Community. Although the Committee did not include the specific
language of H.R. 2701 that would have authorized grant programs
for historically Black colleges and universities, the Committee
understands that such colleges and universities have been the
recipients of such grants in the past. Further, the Committee
encourages the ODNI to continue to reach out to historically
Black colleges and universities, as well as Hispanic-serving
institutions, tribally controlled colleges and universities,
Alaska Native-serving institutions, and Native Hawaiian-serving
institutions, in its efforts to recruit and retain a diverse
workforce.
Students attending participating colleges and universities
and taking the prescribed course of study may competitively
apply for financial assistance including, but not limited to, a
monthly stipend, tuition assistance, book allowances, and
travel expenses. Students who receive a threshold amount of
assistance are obligated to serve in the Intelligence
Community. The ODNI is to develop application requirements for
students, which could include the successful completion of a
security background investigation.
Section 313 builds on a NSA pilot program that provided
grants to academic institutions. The original NSA pilot
program, with its focus on cryptologic service at NSA, although
beneficial to NSA, no longer meets the variety of the
Intelligence Community's critical skills requirements. The
IOTP, with its broader scope, is intended to assist the
Intelligence Community in establishing and building
partnerships with academic institutions and ensure a continuous
pool of qualified entry-level applicants to Intelligence
Community elements, tailored to changing priorities of an
evolving Intelligence Community enterprise.
Section 313 repeals the authorizations for the following
programs that are either incorporated into or replaced by the
IOTP: the pilot program authorized by Section 319 (but not the
section findings) of the Intelligence Authorization Act for
Fiscal Year 2004, Pub. L. No. 108-177 (2003) (50 U.S.C. 403
note); the scholarship program authorized by Section 1043 of
the Intelligence Reform and Terrorism Prevention Act, Section
1003 of the National Security Act, Pub. L. No. 108-458 (2004)
(50 U.S.C. 441g-2) (Intelligence Reform Act); and the pilot
program authorized by Section 922 of the Ronald W. Reagan
National Defense Authorization Act for Fiscal Year 2005, Pub.
L. No. 108-375 (50 U.S.C. 402 note). Section 313 is similar to
Section 313 of S. 1494 and Section 312 of H.R. 2701.
Section 314. Pilot program for intensive language instruction in
African languages
Section 314 permits the DNI, in consultation with the
National Security Education Board established under section
803(a) of the David L. Boren National Security Education Act of
1991, to establish a pilot program to provide scholarships for
programs that provide intensive language instruction in any of
the five highest priority African languages for which
scholarships are not currently offered. The pilot program will
terminate five years after the date on which it is established.
The intent of the program is to begin building capability
in African languages spoken in areas where U.S. national
security interests may be affected, but where insufficient
instructional capability exists in the United States. For
example, the program may use intensive immersion instruction
both in the United States and abroad in languages like Somali,
Hausa, Amharic, Tigrinya, and Kituba.
Section 314 is intended by the Committee as a component in
the development of a comprehensive plan for meeting national
intelligence linguistic requirements, as required by Section
1041 of the Intelligence Reform and Terrorism Prevention Act.
The Committee believes it is important for the Intelligence
Community to be proactive in identifying languages from around
the globe that are in need of attention and further resources.
The Committee expects that the DNI will develop an overall
language strategy that anticipates the Intelligence Community's
future needs and allocates resources accordingly.
Section 314 is identical to Section 314 of H.R. 2701. S.
1494 had no comparable provision.
Subtitle C--Acquisition Matters
Section 321. Vulnerability assessments of major systems
Section 321 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 an initial vulnerability assessment for each
major system and its significant items of supply in the
National Intelligence Program. The provision also requires the
DNI to conduct subsequent vulnerability assessments throughout
the procurement of a major system. 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, which should enable
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 timing of when an initial vulnerability assessment must
be completed under Section 321 depends upon whether a major
system has reached Milestone B or an equivalent acquisition
decision. For new major system acquisitions, the DNI must
complete a vulnerability assessment and submit it to the
congressional intelligence committees prior to completion of
Milestone B or an equivalent acquisition decision. For major
systems that have already completed Milestone B or will
complete Milestone B during the six-month period following such
enactment, the DNI must complete a vulnerability assessment
within one year of enactment of the Act. The DNI also has the
authority to extend the deadline for a major system by an
additional six months, provided the DNI notifies the
congressional intelligence committees and includes a
justification for the extension. Thus, the DNI will have up to
18 months to complete the vulnerability assessments for
existing major systems.
The minimum requirements of the initial vulnerability
assessment are fairly broad and are intended to provide the DNI
with significant flexibility in crafting an assessment tailored
to the proposed major system. The DNI is required to use, at a
minimum, an analysis-based approach to identify
vulnerabilities, define exploitation potential, examine the
system's potential effectiveness, determine overall
vulnerability, and make recommendations for risk reduction. The
Committee expects that these required elements will be weighted
differently depending upon the nature of the major system at
issue. For example, a major system that is based upon cutting-
edge technology may require a more careful examination of the
system's potential effectiveness than a system based upon time-
tested technology. Also, certain major systems may share a
common supply chain that can be assessed once, but incorporated
into numerous vulnerability assessments. The DNI is obviously
free to adopt a more rigorous methodology for the conduct of
initial vulnerability assessments.
Section 321 contains an enforcement mechanism to ensure
that major system vulnerability assessments are completed in a
timely fashion so that Congress and the DNI can make informed
funding decisions. If a major system vulnerability assessment
is not completed and submitted to the congressional
intelligence committees within the deadlines required by
subsection (a)(1), no funds appropriated for the major system
may be obligated for a major contract until Congress receives
the assessment.
Vulnerability assessments should continue throughout the
procurement of a major system. Numerous factors and
considerations can affect the viability of a given major
system. For that reason, Section 321 provides the DNI with the
flexibility to set a schedule of subsequent vulnerability
assessments for each major system when the DNI submits the
initial vulnerability assessment to the congressional
intelligence committees. The time period between assessments
should depend upon the unique circumstances of a particular
major system. For example, a new major system that is
implementing an experimental technology might require annual
assessments, while a more mature major system might not need
such frequent reassessment. The DNI is also permitted to adjust
a major system's assessment schedule when the DNI determines
that a change in circumstances warrants the issuance of a
subsequent vulnerability assessment. Section 321 also provides
that a congressional intelligence committee may request that
the DNI 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 shall also use a testing-based approach, if applicable, to
assess the system's vulnerabilities. The testing approach is
obviously not intended to require the ``crash testing'' of a
satellite system. Nor is it intended to require the DNI to test
system hardware. However, the vulnerabilities of a satellite's
significant items of supply might be exposed by a rigorous
testing regime. Second, the subsequent vulnerability assessment
is required to monitor the exploitation potential of the major
system. A subsequent vulnerability assessment should,
therefore, monitor ongoing changes to vulnerabilities and
understand the potential for exploitation. Since new
vulnerabilities can become relevant and the characteristics of
existing vulnerabilities can change, it is necessary to monitor
both existing vulnerabilities and their characteristics and to
check for new vulnerabilities on a regular basis.
Section 321 requires the DNI to give due consideration to
the vulnerability assessments prepared for the major systems
within the National Intelligence Program. It also requires that
the vulnerability assessments be provided to the congressional
intelligence committees within ten days of their completion.
The Committee encourages the DNI to share the results of these
vulnerabilities assessments, as appropriate, with other
congressional committees of jurisdiction.
Finally, the section contains definitions for the terms
``items of supply,'' ``major system,'' ``Milestone B,'' and
``vulnerability assessment.''
Section 321 is similar to Section 321 of S. 1494. H.R. 2701
had no similar provision.
Section 322. Intelligence community business system transformation
A business enterprise architecture incorporates an agency's
financial, personnel, procurement, acquisition, logistics, and
planning systems into one interoperable system. Historically,
Intelligence Community elements have pursued unique, stovepiped
systems that do not leverage the investments of other elements
of the Intelligence Community. More recently, there has been a
more collaborative effort among the Intelligence Community
elements on the development of business systems, but true
transformation to an integrated Intelligence Community
architecture has not been achieved. Section 322 will help
ensure that the DNI effectively and efficiently coordinates
Intelligence Community business systems.
Section 322 adds a new Section 506D to the National
Security Act of 1947. It will prohibit the obligation of
appropriated funds for any system costing more than three
million dollars that has not been certified by the Director of
the Office of Business Transformation of the ODNI as complying
with the enterprise architecture, as necessary for national
security, or as an essential capability. The certification
process is to be supported by investment review procedures that
meet the requirements of Section 11312 of title 40, United
States Code, relating to maximizing the value, and assessing
and managing the risks, of information technology acquisitions.
The review process will be led by a board that will recommend
business transformation policies and procedures to the DNI and
review and approve major updates to the enterprise architecture
and any plans for Intelligence Community business systems
modernization.
Section 322 will also require the ODNI to identify all
``legacy systems'' that will be either terminated or
transitioned into the new architecture, and to include within
the annual budget submission details on each business system
being funded. Further, this section will require the DNI to
report to the congressional intelligence committees annually
for five years on the progress being made in implementing the
new architecture.
Section 322 requires the DNI to revise the enterprise
architecture that was submitted to the congressional
intelligence committees in December 2009 and to more clearly
define all Intelligence Community business systems, as well as
the functions and activities supported by those business
systems, in order to issue detailed guidance on implementation
of interoperable Intelligence Community business system
solutions. Section 322 requires the revised enterprise
architecture to be submitted by September 30, 2010. In
addition, the enterprise architecture is to be supported by an
implementation plan that includes an acquisition strategy for
new systems needed to complete the architecture. The
acquisition strategy is to be submitted by March 31, 2011.
Section 322 is based on Section 322 of S. 1494. H.R. 2701
had no comparable provision.
Section 323. Reports on the acquisition of major systems
Sections 323 and 324 amend Title V of the National Security
Act of 1947 (50 U.S.C. 413 et seq.) by creating Sections 506E
and 506F to regulate the oversight of major system acquisitions
within the Intelligence Community. In the Department of Defense
Authorization Act for Fiscal Year 1982, Congress created a
statutory scheme (commonly referred to as ``Nunn-McCurdy'')
which was designed to curtail cost growth in weapons
procurement programs. The acquisition reforms contained in this
Act are intended to bridge the current gap in the Intelligence
Community major system acquisition process in a manner similar
to the major defense acquisition process. Specifically, Section
506E is modeled on 10 U.S.C. 2433, which governs the submission
of unit cost reports for major defense acquisitions.
Definitions
Sections 506E and 506F use terminology that is very similar
to that used in the major defense acquisition process. However,
some of these terms have been simplified to include terminology
already familiar to the Intelligence Community. Some of the
definitions in subsection (a) are not addressed here because
they are either self-explanatory or merely cross-reference
existing statutory definitions.
The term ``cost estimate'' appears only twice in Sections
506E and 506F and is used to alleviate concern by the
Intelligence Community that they would have to conduct a full
``independent cost estimate'' under Section 506A of the
National Security Act at certain points in the major system
acquisition process. Section 506E requires the DNI to re-
baseline any major system that is currently in breach of either
the significant or the critical cost growth thresholds and
permits the DNI to re-baseline any other existing major system.
Given that the Act only allows a six-month period for the
completion of such re-baselining, the Committee agreed that it
would be unrealistic to expect a revised current Baseline
Estimate to be based upon an independent cost estimate.
A similar timing consideration is present in Section 506F,
which allows the DNI to restructure a major system that has met
or exceeded its critical cost growth threshold. The DNI must
submit a Major System Congressional Report and a certification
to Congress within 90 days after receiving notice of the
critical cost growth breach. As part of that process, the DNI
is required to establish a revised current Baseline Estimate.
Again, the Committee recognized that 90 days was an
insufficient time period to complete a formal independent cost
estimate as part of this congressional reporting process. Thus,
the definition allows the DNI to assess and quantify all of the
costs and risks associated with each affected major system
based upon reasonably available information at the time such
cost estimate is conducted.
The definition of the term ``critical cost growth
threshold'' is a simplified version of the same term in the
major defense acquisition process. As is discussed below,
Sections 506E and 506F do not differentiate between the terms
``original Baseline Estimate'' and ``current Baseline
Estimate.'' Instead, these sections simply utilize ``current
Baseline Estimate,'' which is subject to revision only in very
limited circumstances. Also, these sections do not
differentiate between ``program acquisition unit costs'' or
``procurement unit costs.'' The single term ``total acquisition
cost'' is used to encompass both of these concepts, because it
is currently used and understood by Intelligence Community
acquisition and budgetary professionals. In addition, the
definition of ``critical cost growth threshold'' is simplified
to mean a percentage increase in the total acquisition cost for
a major system of at least 25 percent over the total
acquisition cost for the major system, as measured against the
current Baseline Estimate for the major system. For example, if
the current Baseline Estimate for a major system is 500 million
dollars, the major system will reach its critical cost growth
threshold when the total acquisition cost meets or exceeds 625
million dollars.
The term ``current Baseline Estimate'' merges the concepts
of ``original'' and ``current'' baseline estimates used in the
major defense acquisition process. There are only three
circumstances in which a current Baseline Estimate may be
established or modified. The first occurs when the DNI approves
the projected total acquisition cost of a major system at
Milestone B or an equivalent acquisition decision. This is the
equivalent of an ``original Baseline Estimate'' and may be in
the form of an independent cost estimate. The second occurs
only if a major system has experienced a critical cost growth
breach and the DNI has decided to restructure the major system
and establish a revised current Baseline Estimate. The third
may only occur during the six-month grandfather period
following the enactment of the Act, when the DNI revises the
current Baseline Estimates for existing major systems pursuant
to subsection (h). Other than these three situations, the
section contains no authority for the past practice of periodic
re-baselining of major systems within the National Intelligence
Program. Since this periodic re-baselining option has been
taken off the table, the Committee expects that the incentive
for accuracy of the independent cost estimates for major
systems required by Section 506A will increase. If the
independent cost estimate that drives the current Baseline
Estimate is too low, the major system will likely breach its
significant or criticalcost growth thresholds. If the
independent cost estimate is too high, it might be difficult to obtain
funding for the major system from Congress.
The term ``major contract'' is based upon but slightly
different than the definition of the same term in 10 U.S.C.
2432(a)(3).
The term ``Milestone B'' was derived from the definition of
the term ``Milestone B approval'' in 10 U.S.C. 2366(e)(7)
substituting the DNI for the Secretary of Defense.
The term ``program manager'' has a meaning that is
different from the usual understanding of the term. This
definition does not include the individual who is responsible
for the day-to-day administration of a particular major system.
Rather, the term includes the head of the element of the
Intelligence Community who is responsible for the budget, cost,
schedule, and performance of a major system, or, if the major
system is within the Office of the DNI, the deputy who is
responsible for the budget, cost, schedule, and performance of
a major system. The definition was constructed in this manner
to ensure that Intelligence Community agency heads are fully
cognizant and accountable for any major system cost overruns
within their agency.
The term ``significant cost growth threshold'' was derived
in a manner similar to that previously described in the
discussion of the term ``critical cost growth threshold'' and
is a simplified version of the identical term in the major
defense acquisition process. A significant cost growth
threshold is reached when there is a percentage increase in the
total acquisition cost for a major system of at least 15
percent over the total acquisition cost for the major system as
measured against the current Baseline Estimate for the major
system. For example, if the current Baseline Estimate for a
major system is 500 million dollars, the major system will
reach its significant cost growth threshold when the total
acquisition cost meets or exceeds 575 million dollars.
Major System Cost Reports
Section 323 requires Intelligence Community program
managers to submit a quarterly major system cost report to the
DNI for each major system. These cost reports will keep the DNI
updated on the progress of each major system as it progresses
through the acquisition process. A major system cost report
shall consist of four elements: (1) the total acquisition cost
for the major system; (2) any cost or schedule variance in a
major contract for the major system; (3) any changes from a
major system schedule milestones or performances that are
known, expected, or anticipated by the program manager; and (4)
any significant changes in the total acquisition cost for
development and procurement of any software component of the
major system, schedule milestones for such software component,
or expected performance of such software component that are
known, expected, or anticipated by the program manager. These
routine major system cost reports are due to the DNI within 30
days after the end of the reporting quarter.
Program managers are also required to submit a major system
cost report immediately to the DNI if they determine at any
time during the quarter that there is reasonable cause to
believe that the total acquisition cost has triggered a
significant or critical cost growth breach.
Major System Congressional Reports
Unlike the Department of Defense acquisition process,
Section 506E does not require the submission of detailed
quarterly Selected Acquisition Reports to Congress for each
major system. Instead, the DNI is only required to submit a
Major System Congressional Report whenever the DNI determines
the total acquisition cost of a major system has met or
exceeded a significant or critical cost growth threshold. The
elements of a Major System Congressional Report in subsection
(f) track very closely with the elements contained in the
congressional report required pursuant to 10 U.S.C. 2433(g)(1)
under the defense acquisition process. The deviations are
largely the result of terminology differences between the two
processes or based on the fact that the Selected Acquisition
Report is not included in the Intelligence Community major
system acquisition process. Major System Congressional Reports
for significant cost growth breaches must be submitted to
Congress no later than 45 days after the date on which the DNI
receives the major system cost report that identified such
breach.
If the DNI determines that the total acquisition cost of a
major system has met or exceeded the critical cost growth
threshold, then the DNI is required to follow the procedures
set forth in Section 506F, which includes a presumption of
termination of the major system. If the DNI decides not to
terminate a major system that has experienced a critical cost
growth breach, the DNI will be required to submit a Major
System Congressional Report and a certification pursuant to
Section 506F(b)(2). Section 506F(b)(1) requires that such Major
System Congressional Report and certification be submitted
within 90 days after the date the DNI receives the major system
cost report that identified the critical cost growth breach.
Prohibition on Obligation of Funds
To ensure that these reports and certifications are
submitted to Congress in a timely fashion, Section 506E
contains an enforcement mechanism that is very similar to that
found in the major defense acquisition process at 10 U.S.C.
2433(e)(3). Subsection (g) prohibits the obligation of funds
for a major system if the DNI fails to submit the required
reports and certification within the 45-day deadline for a
significant cost-growth breach or the 90-day deadline for a
critical cost-growth breach. The prohibition on obligation of
funds is not triggered by the DNI's determination that there
has been a significant or critical cost-growth breach under
subsection (d). Rather, it is triggered by the failure of the
DNI to submit the required congressional reporting within the
statutory deadlines established in subsection (e)(1) and
Section 506F(b)(1).
The prohibition on obligating funds for a major system will
cease to apply 45 days after Congress receives the required
Major System Congressional Report in the case of a significant
cost-growth breach or the required Major System Congressional
Report and certification in the case of a critical cost-growth
breach. The only real difference between this provision and
that used by the major defense acquisition process is the use
of a straight-forward 45-day time period as compared to the
``30 days of continuous session of Congress'' formulation used
in 10 U.S.C. 2433(e)(3).
Grandfather Clause
To ease the transition into this new Intelligence Community
major system acquisition process, the Committee agreed to
construct a grandfather clause that would require the DNI to
establish a revised current Baseline Estimate for all major
systems with a current total acquisition cost equal to or
greater than its significant or critical cost-growth threshold
and permit the DNI to establish a revised current Baseline
Estimate for the remaining major systems. The DNI has six
months after enactment of the Act to complete this process and
submit a report to Congress describing the DNI's determinations
and each revised current Baseline Estimate. The grandfather
clause also allows the DNI to include the estimated cost of
conducting any vulnerability assessments in any such revised
current Baseline Estimate.
Reports on Acquisitions of Major Systems
Section 323 also clarifies that any determination of a
percentage increase under Section 506E is required to be stated
in terms of constant base year dollars. In addition, any report
required to be submitted under Section 506E is required to be
submitted in a classified form. Finally, Section 323 also
clarifies that nothing in the Intelligence Community major
system acquisition process shall be construed to exempt an
acquisition program of the Department of Defense from the
requirements of chapter 144 of title 10, United States Code or
Department of Defense Directive 5000, to the extent that such
requirements are otherwise applicable.
Section 323 is based on Section 323 of S. 1494. H.R. 2701
had no comparable provision. The Committee agreed to modify
Sections 323 and 324 in part to address concerns of the ODNI
and to reflect changes made in Title 10 of the United States
Code by the Weapons Systems Acquisition Reform Act of 2009,
Pub. L. No. 111-23 (May 22, 2009).
Section 324. Critical cost growth in major systems
Section 324 amends Title V of the National Security Act of
1947 (50 U.S.C. 413 et seq.) by creating Section 506F to
regulate the oversight of major system acquisitions within the
Intelligence Community in the case of excessive cost growth.
Specifically, Section 506F is modeled very closely on 10 U.S.C.
2433a, which governs the critical cost growth in major defense
acquisition programs.
Reassessment of Major System
If the DNI determines under Section 506E(d) that the total
acquisition cost of a major system has increased by a
percentage equal to or greater than the critical cost growth
threshold for such system, then the DNI is required to
determine the root causes of the critical cost growth and carry
out an assessment of the projected costs, any reasonable
alternatives, and the need to reduce funding for other systems
to compensate for the cost growth of the major system. This
reassessment of the major system will be used by the DNI in
deciding whether the major system should be terminated or
restructured.
Presumption of Termination
After conducting a reassessment of the major system that
has reached its critical cost growth threshold, the DNI is
required to terminate the major system unless the DNI submits a
Major System Congressional Report and a certification to
Congress that justifies the continuation of the major system.
The Major System Congressional Report and certification are due
to Congress not later than 90 days after the date the DNI
received the major system cost report that provided the basis
for the DNI's determination under 506E(d).
The Major System Congressional Report for a critical cost
growth breach contains all of the elements required by Section
506E(e) for the Major System Congressional Report required in
the case of a significant cost growth breach, but also requires
the following additional elements: (1) the root cause analysis
and assessment required by subsection (a); (2) the basis for
the determinations made in the DNI's certification that the
major system should be continued; and (3) a description of all
funding changes made as a result of the growth in the major
system, including the need for any reductions made in funding
for other systems to accommodate such cost growth. In essence,
the Major System Congressional Report, in the case of critical
cost growth, provides Congress with the detailed factual basis
necessary to determine whether funding for the major system
should be extended or terminated.
The certification is intended to make the DNI accountable
for the decision to proceed with a major system that has
experienced a critical cost growth breach. The required
elements of the certification are straight-forward. First, the
DNI must certify that the continuation of the major system is
essential to national security.
The second element is closely related to the first. The DNI
must certify that there are no less costly alternatives to the
major system that will provide acceptable capability to meet
the intelligence requirement.
Third, the DNI must determine that the new estimates of the
total acquisition cost are reasonable. If the DNI's analysis
and assessment reveal that the new estimate of the total
acquisition cost of the affected major system is unreasonable,
then this certification element cannot be satisfied and a
revised current Baseline Estimate should not be prepared.
The fourth certification element requires the DNI to
prioritize the affected major system relative to other systems
whose funding must be reduced to accommodate its cost growth.
The DNI must certify that the affected major system in question
is a higher priority than any of the other major systems,
otherwise this element cannot be satisfied.
The final certification element is an accountability
requirement. The DNI must certify that the management structure
for the major system is adequate to manage and control the
total acquisition cost. Depending upon the particular
circumstances, the DNI may need to take steps, in coordination
with the major system program manager, to ensure that the
management structure is capable of controlling the total
acquisition cost of the affected major system.
If the DNI does not certify to all five of these elements,
then the DNI is required to terminate the major system under
subsection (b).
Actions if a Major System Is Not Terminated
There are some additional actions that the DNI must
complete if the DNI elects not to terminate a major system that
has breached the critical cost growth threshold. These actions
are in addition to the submission of the Major System
Congressional Report and certification requirements of
subsection (b). First, the DNI must restructure the major
system in a manner that addresses the root causes of the
critical cost growth. The DNI must also ensure that the system
has an appropriate management structure. Second, the DNI is
required to rescind the most recent Milestone approval for the
major system. Third, the DNI must require a new Milestone
approval for the major system before taking any action to enter
into a new contract, exercise an option under an existing
contract, or otherwise extend the scope of an existing contract
under the system. The requirement applies except to the extent
determined necessary by the Milestone Decision Authority, on a
non-delegable basis, to ensure that the system may be
restructured as intended by the DNI without unnecessarily
wasting resources. Fourth, the DNI is required to establish a
revised current Baseline Estimate for the major system based
upon an updated cost estimate. This revised current Baseline
Estimate for the affected major system will be used to
calculate future breaches of the significant or critical cost
growth thresholds. Finally, the DNI is required to conduct
regular reviews of major systems that have experienced a
critical cost growth breach.
Actions if a Major System Is Terminated
If the DNI decides to terminate a major system, the DNI is
required to submit a brief report to Congress that explains the
reasons for the termination, the alternatives considered to
address the problems with the major system, and the course the
DNI plans to pursue to meet any intelligence requirements
otherwise intended to be met by the terminated major system.
Waiver
The Department of Defense major defense acquisition process
provides for a waiver of the Selected Acquisition Report
requirements of 10 U.S.C. 2432 and other Nunn-McCurdy
requirements when 90 percent of the items to be delivered to
the United States (90 percent of planned expenditures) have
been made under a major defense acquisition program. The DNI
requested that a similar 90 percent waiver provision be added
to Section 506F.
The Committee agreed to a somewhat more limited waiver
provision. Under subsection (f), the DNI may waive certain
specified requirements in Sections 506E and 506F (e.g., the
prohibition on obligation of funds, the presumption of
termination) if the DNI determines that at least 90 percent of
the amount of the current Baseline Estimate for the major
system has been expended. If the DNI exercises this authority,
the DNI is required to provide a written notification to the
congressional intelligence committees that includes the basic
information required for a Major System Congressional Report
under Section 506E(f).
If the DNI grants the 90-percent waiver, the program
manager is still required to submit quarterly major system cost
reports on such major system to the DNI. If the major system
cost report reveals a significant or critical cost growth
breach, then the DNI must submit the additional written notice
required by subsection (f)(2)(A) to the congressional
intelligence committees. This notification process will
facilitate Congress monitoring closely any waived major system
that experiences a significant or critical cost growth breach
during the last 10 percent of its estimated acquisition cost.
It also creates an incentive for program managers to ensure
that cost growth is minimized during the entire procurement of
a major system.
Section 324 is based on Section 324 of S. 1494. H.R. 2701
had no comparable provision.
Section 325. Future budget projections
Section 325 adds a new Section 506G to the National
Security Act of 1947. It requires the DNI, with the concurrence
of the Office of Management and Budget (OMB), to provide the
congressional intelligence committees with two future budget
projections that together span ten years. Section 325 thus
ensures that the Intelligence Community will make long-term
budgetary projections that span the same time frame as the
funding needs of programs it initiates in the budget.
Section 325 requires first a Future Year Intelligence Plan
for at least four years after the budget year, which includes
the year-by-year funding plan for each expenditure center and
for each major system in the National Intelligence Program.
Section 325 also requires lifecycle cost and milestones for
major systems and a Long-term Budget Projection five years
beyond the Future Year Intelligence Plan, but at a much higher
level of budget aggregation. Section 325 requires that the
Long-term Budget Projection include a description of whether,
and to what extent, the projection for each year for each
element of the Intelligence Community exceeds the level that
would result from applying the most recent OMB inflation
estimate to that element. Both budget projections must be
submitted to Congress with the President's budget request.
Section 325 ensures that the Executive branch and Congress
will be fully aware of the long-term budgetary impact of a
major system acquisition prior to its development or
production. This is achieved through a requirement for a major
system affordability report. This report will assess whether,
and to what extent, a new acquisition, if developed, procured,
and operated, would cause an increase in the most recent Future
Year Intelligence Plan and Long-term Budget Projection. The
affordability report is required before the time that the
President submits to Congress the budget for the first fiscal
year in which appropriated funds are anticipated to be
obligated for the development or procurement of the system.
This affordability report will be updated whenever an
independent cost estimate must be updated. Section 325 is based
on Section 325 of S. 1494. H.R. 2701 had no comparable
provision.
Section 326. National Intelligence Program funded acquisitions
Section 326 adds a new subparagraph (4) to the acquisition
authorities of the DNI collected in Section 102A(n) of the
National Security Act of 1947. Existing subparagraph (1)
authorizes the DNI to exercise the acquisition and
appropriations authorities referred to in the Central
Intelligence Agency Act of 1949 (CIA Act). Although
subparagraph (1) is not explicit, those authorities are found
in Sections 3 and 8 of the CIA Act, except, as provided in
subparagraph (1), for the CIA's authority under section 8(b) to
expend funds without regard to laws and regulations on
Government expenditures for objects of a confidential,
extraordinary, or emergency nature.
Subparagraph (4)(A) authorizes the DNI to make acquisition
authority referred to in Sections 3 and 8(a) of the CIA Act
also available to any Intelligence Community element for an
acquisition that is funded in whole or in majority part by the
National Intelligence Program. Among Intelligence Community
elements, the National Reconnaissance Office (NRO) and the
National Geospatial-Intelligence Agency (NGA) already exercise
these or similar authorities either directly or through the
CIA. The grant of this authority to the DNI is part of an
effort to ensure that the DNI has the ability to manage the
elements of the Intelligence Community as a community by
enabling the DNI to make available throughout the Intelligence
Community, when warranted, authority originally enacted for one
of its elements.
Subparagraphs 4(B)-(G) establish procedures and controls on
the grant of this authority. The head of an Intelligence
Community element, without delegation, must request in writing
that the DNI make the authority available. The request must
explain the need for the acquisition authority, including an
explanation why other authorities are insufficient and a
certification that the mission of the element would be impaired
if the requested authority is not exercised. In turn, for the
authority to be provided, the DNI, the Principal Deputy DNI, or
a designated Deputy DNI must issue a written authorization that
includes a justification supporting the use of the authority.
Requests from the head of an Intelligence Community element
that are within the Departments of Defense, Energy, Homeland
Security, Justice, State, and Treasury shall be transmitted to
the DNI in accordance with procedures established by the heads
of those departments. Also, to ensure periodic review,
authorities may not be granted for a class of acquisitions
beyond a renewable 3 years, except for a renewable 6 years if
the DNI personally approves the authority. The congressional
intelligence committees shall be notified of all authorizations
granted under subparagraph (4).
Section 326 is similar to Section 326 of S. 1494. H.R. 2701
had no comparable provision.
Subtitle D--Congressional Oversight, Plans, and Reports
Section 331. Notification procedures
Section 331 amends requirements concerning congressional
oversight in Sections 501-503 of the National Security Act of
1947. It is based on Section 321 of H.R. 2701 and Sections 331-
334 of S. 1494.
Section 501(c) of the National Security Act of 1947
provides that the President and the congressional intelligence
committees shall each establish such procedures as are
necessary to carry out the accountability provisions of Title V
of that Act, which include the requirements for reporting on
intelligence activities and covert actions. Section 331(a)
amends Section 501(c) to clarify that the procedures required
by subsection (c) be written procedures.
Section 331(b) amends Section 502(a)(2) of the National
Security Act to specify that the requirement to provide the
congressional intelligence committees with any information or
material concerning activities other than covert actions
includes the legal basis under which the significant
intelligence activity is being or was conducted. A similar
amendment is made by Section 331(c) to Section 503(b)(2) with
respect to covert action. In addition, Section 331(c)
specifies, in an amendment to Section 503(c), that any covert
action finding shall be reported in writing and that the
President shall also provide in writing the reasons for any
limited access to a finding or notice of significant change in
a finding.
Section 331(c) also sets forth, as an amendment to Section
503(d), six factors that the President shall consider, among
other relevant factors, in determining whether an activity
constitutes a ``significant undertaking'' for which an
additional congressional notification is required. These
factors include: significant risk of loss of life; expansion of
existing authorities; the expenditure of significant funds or
other resources; notification under Section 504, pertaining to
funding of intelligence activities; significant risk of
disclosure of intelligence sources or methods; or a reasonably
foreseeable risk of serious risk of damage to diplomatic
relations if such activity were disclosed without
authorization. Finally, Section 331(c) also adds a new
subsection (g) to Section 503 to require the President to
maintain a record of the Members of Congress to whom a limited
access finding--or notice of significant change in a previously
approved covert action or in any significant undertaking
pursuant to a previously approved finding--was reported and the
date on which each such Member receives such a finding or
notice. The President must also maintain the written statement
required to be made of the reasons for not notifying all
Members of the intelligence committees of such a finding or
notice.
Over the years that the intelligence committees have
engaged in oversight of the Intelligence Community, many
elements of the process for notifying Congress concerning
intelligence activities, including covert actions, have emerged
from practice that reflects a sense of comity between the two
branches and a shared sense of responsibility for national
security matters.
There have nonetheless been serious disputes over the
implementation of these practices--and over the meaning of the
provisions on which they are based--with respect to
notification regarding certain intelligence activities. The
modifications to the notification provisions adopted in this
section are intended to clarify and improve certain specific
and important elements of this practice, but should not be
construed to be anything more than specific requirements that
procedures, findings, and reasons be in writing, and
information on legality be provided. The modifications
contained in this section do not alter the fundamental compact
between the Executive and Legislative branches with respect to
national security oversight. Moreover, nothing in these
provisions is intended to infringe on the President's
constitutional authority in this area or on the constitutional
authority of Congress to conduct oversight of U.S. intelligence
activities.
Section 332. Certification of compliance with oversight requirements
Section 332 requires the head of each element of the
Intelligence Community to submit a certification on an annual
basis that the element is in full compliance with Title V of
the National Security Act of 1947, which requires that the
congressional intelligence committees be kept fully and
currently informed of intelligence activities. The head of each
element of the IntelligenceCommunity must also certify that any
information required to be submitted to the congressional intelligence
committees has been submitted. The first certification shall be
submitted within 90 days of enactment of the Act.
If the head of an element is unable to submit the
certification required by this section, the section requires an
explanation as to why the certification cannot be made, a
description of information required to be submitted, and an
affirmation that the head of the element will submit such
information as soon as possible.
Section 332 is based on Section 336 of H.R. 2701. S. 1494
did not have a comparable provision.
Section 333. Report on detention and interrogation activities
Section 333 requires the DNI, in coordination with the
Attorney General and the Secretary of Defense, to provide the
congressional intelligence committees a comprehensive report on
five matters by December 1, 2010. The report may be submitted
in classified form.
Pursuant to subsection (a)(1), the report shall contain the
policies and procedures of the United States Government
governing participation by an element of the Intelligence
Community in the interrogation of individuals detained by the
United States who are suspected of international terrorism with
the objective, in whole or in part, of acquiring national
intelligence. This reporting requirement applies to policies
and procedures and is not intended to require a description of
interrogations on a detainee-by-detainee basis. However, with
respect to policies and procedures, the report is intended to
be comprehensive. It includes not only interrogation directly
by an element of the Intelligence Community (a term that
includes the CIA, the Defense Intelligence Agency, and the
intelligence elements of the FBI) but also interrogation
undertaken with the support of an element of the Intelligence
Community or by any interagency body established to carry out
interrogation.
The report shall include, in accordance with subsection
(a)(2), the policies and procedures of the United States
Government for any detention by an individual suspected of
international terrorism by the Central Intelligence Agency.
Section 4(a) of Executive Order 13491 (74 Fed. Reg. 4893)
directed the CIA to close any detention facility that it
operated at the time of the issuance of the order, on January
22, 2009, and not to operate any such detention facility in the
future. However, Section 2(g) of the Executive Order defined
``detention facility'' as not referring ``to facilities used
only to hold people on a short-term, transitory basis.'' The
report required by subsection (a)(1)(B) does not distinguish
between long-term and short-term detention, but embraces all
detention of individuals suspected of international terrorism
by the CIA.
Pursuant to subsection (a)(3), the comprehensive report
shall describe the legal basis of the interrogation and
detention policies and procedures described in subsection
(a)(1) and (a)(2). This should include the legal basis of such
policies and procedures under applicable statutes,
international agreements, and Executive orders.
In August 2009, the Special Task Force on Interrogation and
Transfer Policies established by Executive Order 13491 (74 Fed.
Reg. 4893) recommended that the United States form a
specialized interagency interrogation group that would
coordinate the deployment of experienced, interagency
interrogation teams, develop a set of best interrogation
practices for training purposes, and establish a program of
scientific research on interrogation approaches and techniques.
Under subsection (a)(4) of Section 333, the report should
describe the actions taken to implement these recommendations
of the Special Task Force concerning research relating to
interrogation practices and training on interrogation in the
Intelligence Community.
Finally, pursuant to subsection (a)(5), the report should
describe any actions taken to implement the section of the
Detainee Treatment Act that provides for the protection against
civil or criminal liability, as well as counsel fees and other
expenses, for U.S. Government personnel who had engaged in
officially authorized interrogations that were determined to be
lawful at the time.
Section 333(b) provides to the extent that the report
required by Section 333 addresses an element of the
Intelligence Community within the Department of Defense or the
Department of Justice, that portion of the report must also be
submitted to the congressional armed services committees or the
congressional judiciary committees.
Section 333(c) requires the DNI to provide the appropriate
committees of Congress with any significant modification or
revision of the charter and procedures for the specialized
interagency interrogation group, known as the ``High-Value
Detainee Interrogation Group'' (HIG), within 30 days after
their approval. Section 333(c) also requires the DNI to submit
to the appropriate committees of Congress a report setting
forth an analysis and assessment of the lessons learned as a
result of the operations and activities of the HIG within 60
days of enactment of this Act. The appropriate committees of
Congress are the appropriations, armed services, judiciary,
homeland security and intelligence committees. The requirement
of reporting to the appropriations, armed services, judiciary,
and homeland security committees as well as to the
congressional intelligence committees is intended to conform to
the provision of the Senate-passed supplemental appropriations
measure requiring that updates of the HIG charter, HIG
procedures, and the lessons learned report be provided to those
committees. This reporting is subject to the requirement, also
in subsection (b), that it be consistent with the protection of
sensitive intelligence sources and methods. The reporting
provisions of Section 333(c), which have been reviewed with the
ODNI, are the only provisions of the bill that have been
modified, for other than technical corrections, following the
OMB letter of June 10.
Section 333(d) clarifies that any submission required under
Section 333 may be submitted in classified form.
Section 333 merges Section 336 of S. 1494 with Section 352
of H.R. 2701. Several of the specific report matters identified
in Sections 352 and 358 of H.R. 2701 may be addressed in
response to the requirement for a report on policies and
procedures in Section 334. H.R. 2701 also included a number of
additional provisions governing the operation and conduct of
interrogation activities. Before taking action on legislation
that would change the law on interrogations, the Committee
decided it was important to receive information on the new
system of detainee detention and interrogation that will be
described in the report. The Committee therefore decided not to
attempt to address the operation and conduct of interrogation
activities in this bill. The following sections from H.R. 2701
are thus not included in this bill: Section 412, prohibition on
the use of private contractors for interrogations involving
persons in the custody of the Central Intelligence Agency;
Section 416, requirement for video recording of interrogations
of persons in the custody of the Central Intelligence Agency;
and Section 504, prohibition on use of funds to provide Miranda
warnings to certain persons outside of the United States.
Section 334. Assessments on national security threat posed by
Guantanamo Bay detainees
Section 334 requires the DNI to submit to the congressional
intelligence committees the written threat analyses prepared on
each Guantanamo Bay detainee by the Guantanamo Task Force
established pursuant to Executive Order 13492. It also requires
the DNI to provide the congressional intelligence committees
with any new threat assessment prepared by any element of the
intelligence community of a Guantanamo Bay detainee who remains
in detention or is pending release or transfer. In both cases,
the DNI is also required to provide the congressional
intelligence committees with access to the intelligence
information that formed the basis of such threat analyses and
assessments. It is not the intent of the Committee that the DNI
create new assessments specifically to meet the reporting
requirements under this section.
Section 334 is based on Section 337 of S. 1494 and Section
367 of H.R. 2701.
Section 335. Summary of intelligence relating to terrorist recidivism
of detainees held at United States Naval Station, Guantanamo
Bay, Cuba
Section 335 requires the DNI, in consultation with the
Director of the CIA and the Director of the Defense
Intelligence Agency (DIA), to make publicly available an
unclassified summary of intelligence relating to recidivism of
detainees currently or formerly held by the Department of
Defense at the United States Naval Station, Guantanamo Bay and
an assessmentof the likelihood that such detainees will engage
in terrorism or communicate with persons in terrorist organizations.
The unclassified summary must be made available 60 days after the
enactment of the Act.
Section 335 is based on Section 350 of S. 1494 and Section
351 of H.R. 2701. Section 335 extends to 60 days the amount of
time provided to the DNI to make the unclassified summary
publicly available, rather than the 30 days provided in Section
350 of H.R. 2701.
Section 336. Report and strategic plan on biological weapons
Section 336 provides for a report by the DNI on the
intelligence collection efforts of the United States against
biological weapons or the threat of biological weapons in the
hands of terrorists, rogue states, or other actors, both
foreign and domestic. The report also must describe
intelligence collection efforts to protect the United States
bio-defense knowledge and infrastructure.
The report required by Section 336 must include the
following elements: (1) an accurate assessment of the
intelligence collection efforts of the United States dedicated
to detecting the development or use of biological weapons by
state, non-state, or rogue actors, either foreign or domestic;
(2) detailed information on fiscal, human, technical, open
source, and other intelligence collection resources of the
United States for use against biological weapons; and (3) an
assessment of any problems that may reduce the overall
effectiveness of United States intelligence collection and
analysis to identify and protect biological weapons targets,
including intelligence collection gaps or inefficiencies,
inadequate information sharing practices, or inadequate
cooperation among agencies or departments of the United States.
Additionally, Section 336 provides that this report include
a strategic plan prepared by the DNI, in coordination with the
Attorney General, Secretary of Defense, and Secretary of
Homeland Security, that provides for a coordinated action plan
for the Intelligence Community to address and close the gaps
identified in the report. This strategic plan shall also
include a description of appropriate goals, schedules,
milestones, or metrics to measure the long-term effectiveness
of the plan and any long-term resource and human capital issues
related to the collection of intelligence against biological
weapons or the threat of biological weapons. The report shall
also include any recommendation to address shortfalls of
experienced and qualified staff possessing relevant scientific,
language, and technical skills.
Section 336 requires that the DNI submit this report to the
congressional intelligence committees no later than 180 days
after the enactment of this bill. The DNI is required to begin
implementing the strategic plan within 30 days of submitting
the report.
Section 336 is identical to Section 339 of S. 1494. H.R.
2701 had no comparable provision.
Section 337. Cybersecurity oversight
Section 337 sets forth a preliminary framework for
executive and congressional oversight to ensure that the
government's national cybersecurity mission is consistent with
legal authorities and preserves reasonable expectations of
privacy. Section 337 also requires an Inspector General report
on the sharing of cyber threat information and a plan for
recruiting, retaining, and training an Intelligence Community
workforce to secure the networks of the Intelligence Community.
Finally, Section 337 requires annual reports from the DNI on
guidelines and legislation to improve the cybersecurity of the
United States.
Section 337(h) defines three terms: national cyber
investigative joint task force, critical infrastructure, and
cybersecurity program. The definition of the term
``cybersecurity program'' in Section 337(h) is intentionally a
narrow one. The definition of cybersecurity programs in this
section intentionally excludes firewalls, anti-virus programs,
and other routine programs. Likewise, by requiring a class or
collection of similar cybersecurity operations, the definition
of cybersecurity programs intentionally excludes individual
cyber operations or cyber information-sharing conducted in a
non-programmatic fashion, such as the sharing of a piece of
information for a particular cybersecurity, foreign
intelligence, or national security investigation.
Section 337 instead focuses on multi-agency cybersecurity
programs in which large amounts of information are
characterized, screened, or inspected for the purpose of
protecting government networks. These programs use more
effective technologies to integrate cyber defenses among
government entities that wish to, or are directed to,
participate. These types of programs pose challenging new legal
and privacy questions that make congressional and Executive
branch oversight particularly important. Because the section
seeks to provide a framework of oversight of only those
programs that involve significant potential privacy
implications, the term ``cybersecurity program'' is also
limited by the requirement that the programs involve personally
identifiable data.
Section 337(a) requires the President to notify Congress of
cybersecurity programs and provide Congress with five types of
information or documents: the program's legal basis; any
certifications of the program's legality under 18 U.S.C.
2511(2)(a)(ii) or other statutory provision; any concept of
operations; any privacy impact statement; and any plan for
independent audit or review of the program to be carried out by
the head of the relevant department or agency, in conjunction
with the appropriate inspector general. The notification
requirements of subsection (a) are designed to ensure that
Congress is aware of significant legal, privacy and operational
issues with respect to each new cybersecurity program.
The Department of Justice has expressed concern about
providing to Congress any certifications of the legality of a
cybersecurity program under Section 2511(2)(a)(ii) of Title 18
of the United States Code--certifications which serve to
insulate from litigation providers of wire or electronic
communication who provide information to the government--on the
basis that those types of certifications are not routinely
provided to Congress. Because of the broad scope of possible
operations under cybersecurity programs as defined by this
section, however, the Committee believe that a certification
under Section 2511(2)(a)(ii) prepared for a cybersecurity
program would be different than a certification provided in
other current investigations and law enforcement activities.
Rather than assessing the legality of a single instance of
providing information to the government, any certification for
a ``cybersecurity program'' would have to address the legality
of the program as a whole. A certification for a cybersecurity
program therefore has the potential to authorize providers of
wire or electronic communication to provide significant
assistance to the government, without fear of litigation. Given
the potential impact of any certification, the Committee
believes that significant congressional oversight is warranted.
For existing cybersecurity programs, the notification and
documents must be provided no later than 30 days after the date
of the enactment of this Act. For new programs, the
notification and documents must be provided not later than 30
days after the date of the commencement of operations of a new
cybersecurity program.
Section 337(b) requires the heads of agencies or
departments with responsibility for a cybersecurity program, in
conjunction with the inspector general for that department or
agency, to prepare a report describing the results of any audit
or review under the audit plan and assessing whether the
cybersecurity program is in compliance with, and adequately
described by, the documents submitted to Congress. This
subsection is designed to provide an independent check that the
agencies are conducting cyber operations in a manner consistent
with Executive branch guidance and to supply Congress more
information about the operation of those programs. In addition,
these reports should help identify the key difficulties and
challenges in the cybersecurity programs.
Section 337(c) requires the inspectors general of the
Department of Homeland Security and the Intelligence Community
to prepare a report on the sharing of cyber threat information
both within the U.S. government and with those responsible for
critical infrastructure. This report should be submitted one
year after the enactment of this Act. In their report, the
inspectors general should identify any barriers to sharing
cyber threat and vulnerability information and assess the
effectiveness of current sharing arrangements.
Section 337(d) provides the head of an element of the
Intelligence Community the authority to detail an officer or
employee to the Department of Homeland Security or the National
Cyber Investigative Joint Task Force to assist with
cybersecurity for a period not to exceed three years. This
section will allow Intelligence Community experts to be made
available to the Department of Homeland Security, which serves
as the civilian cyber defense manager but where funding for
cyber security has not been given the same level of priority as
the Intelligence Community. In recognition of the intelligence
committees' ample support for cyber over the last few years,
the provision permits these details to be provided on a
nonreimbursable basis. Thisdetail authority, however, is
restricted to a period not to exceed three years to prevent details
from being used as an alternative to building expertise at civilian
cyber defense agencies.
Section 337(e) requires an additional plan from the DNI for
recruiting, retaining, and training an adequate cybersecurity
workforce, including an assessment of the capabilities of the
current workforce, an assessment of the benefits of outreach
and training with private industry and academic institutions,
and an examination of best practices for making the
Intelligence Community workforce aware of cybersecurity best
practices and principles.
Section 337(f) requires the DNI, in coordination with the
Attorney General, the Director of the NSA, the White House
Cybersecurity Coordinator, and any other officials the DNI
considers appropriate, to submit three annual reports
containing guidelines or legislative proposals to improve the
capabilities of the Intelligence Community and law enforcement
agencies to protect the cybersecurity of the United States. The
report shall include guidelines or recommendations on:
improving the intelligence community's ability to detect
hostile actions; the need for data retention requirements;
improving the ability of the intelligence community to
anticipate nontraditional targets; and the adequacy of existing
criminal statutes to successfully deter cyber attacks.
Finally, Section 337(g) provides that the requirements of
subsections (a) through (e) will terminate on December 31,
2013. During the next three years, the Executive branch will
begin new and unprecedented cybersecurity programs with new
technology and new legal and privacy challenges. Section 337
will allow Congress to follow these developments closely and
gain a deeper and broader understanding of cybersecurity issues
so that, upon the termination of this section, it may be
replaced with a permanent framework for oversight.
Section 337 is based on Section 340 of S. 1494 and Section
356, Section 360D, Section 360F, and Section 507 of H.R. 2701.
Section 338. Report on foreign language proficiency in the intelligence
community
Section 338 requires the DNI to report on the Intelligence
Community's proficiency in foreign languages within one year
after the date of enactment of the Act, and then biennially for
four years. The report should include information on: the
number of positions within the Intelligence Community that
require foreign language proficiency; foreign language
training; the number of personnel hired with such proficiency;
and efforts to recruit, hire, train, and retain personnel who
are proficient in a foreign language. The section requires
detailed reporting for each foreign language. In addition, the
report should include identification of critical gaps in
foreign language proficiency and recommendations for
eliminating such gaps.
Section 338 is identical to Section 334 of H.R. 2701. S.
1494 did not have a comparable provision.
Section 339. Report on plans to increase diversity within the
intelligence community
Section 339 requires the DNI, in coordination with the
heads of the elements of the Intelligence Community to submit a
report on the plans of each element to increase diversity
within the Intelligence Community.
This report must include specific plans: to achieve the
goals articulated in the DNI's strategic plan on equal
opportunity and diversity; plans and initiatives to increase
recruiting and hiring of diverse candidates; specific plans and
initiatives to improve retention of diverse federal employees;
a description of specific diversity awareness training and
education programs; and a description of performance metrics to
measure the success in carrying out the plans, initiatives, and
programs. The report is due not later than a year after the
enactment of the Act.
To carry out its mission most effectively, the Intelligence
Community needs personnel that look and speak like the citizens
of the countries in which it operates. In the past, the
Intelligence Community has not properly focused on hiring a
diverse workforce, and the capabilities of the Intelligence
Community have suffered. The Intelligence Community must be
deliberate and work hard to hire a diverse workforce that
improves its operational capabilities and effectiveness.
Section 339 is similar to Section 353 of H.R. 2701. S. 1494
had no comparable provision.
Section 340. Report on intelligence community contractors
Section 340 requires the DNI to provide a report on the use
of personal services contracts in the Intelligence Community,
including the impact of such contracts on the Intelligence
Community workforce, plans for conversion of contractor
employment into Federal Government employment, and
accountability mechanisms that govern the performance of such
contractors. This report is seeking information on core
contractor personnel, those independent contractors or
individuals employed by industrial contractors who augment
civilian and military personnel by providing direct support to
Intelligence Community elements. The report should not include
information on commodity contractors, such as those who work on
the production or delivery of end-use items, or commercial
contractors, such as those who provide services to Intelligence
Community facilities.
The report required by Section 340 must include the
following: a description of any relevant regulation or guidance
relating to the minimum standards for contract personnel and
how those standards differ from those for Federal Government
employees; an identification of contracts where the contractor
is performing substantially similar functions to a Federal
Government employee, as well as an estimate of the number of
such contracts; an assessment of the costs incurred or saved by
the use of contracts; an assessment of the appropriateness of
using contractors to perform the activities; a comparison
between contractor and Federal employee compensation; an
analysis of Federal Government attrition; a description of the
positions that will be converted to Federal employment; an
analysis of the oversight and accountability mechanisms and
procedures applicable to personal service contracts; and an
identification of best practices for oversight and
accountability. The report must be submitted by February 1,
2011.
Section 340 is identical to Section 338 of H.R. 2701. S.
1494 had no comparable provision. The comprehensive report is
intended to provide the congressional intelligence committees
information about the Intelligence Community's large contractor
work force, to aid in conducting oversight of these contracts
and to assist in devising any appropriate policy solutions.
Section 341. Study on electronic waste destruction practices of the
intelligence community
Section 341 requires the Inspector General of the
Intelligence Community to conduct a study on the electronic
waste destruction practices of the Intelligence Community and
report the results of the study to the congressional
intelligence committees not later than one year after the
enactment of this Act. The study should assess the both the
security of the Intelligence Community's electronic waste
disposal practices and the environmental impact of those
practices. It should also propose methods to improve both the
security and environmental impact of those disposal practices.
Section 341 is identical to Section 344 of H.R. 2701. S.
1494 had no comparable provision.
Section 342. Review of records relating to potential health risks among
Desert Storm veterans
Section 342 requires the Director of the CIA to conduct a
classification review of CIA records relevant to known or
potential health effects suffered by veterans of Operation
Desert Storm. Those health effects were described in a November
2008 report by the Department of Veterans Affairs Research
Advisory Committee on Gulf War Veterans Illnesses. Section 342
also requires the Director of the CIA to report to Congress the
results of the classification review, including the total
number of CIA records determined to be relevant, within a year
after enactment of the Act. To the extent that a classification
review for a relevant set of records has already been conducted
according to current classifications standards, the Director
should report this to Congress with information concerning the
review and the location of such records.
Section 342 is identical to Section 348 of H.R. 2701. S.
1494 had no comparable provision.
Section 343. Review of Federal Bureau of Investigation exercise of
enforcement jurisdiction in foreign nations
Section 343 requires the Director of the FBI, in
consultation with the Secretary of State, to conduct a review
of constraints under international law and the laws of foreign
nations to the assertion of enforcement jurisdiction with
respect to criminal investigations of terrorism offenses under
U.S. law. Such review should look specifically at
investigations conducted by FBI agents using funds made
available by the National Intelligence Program.
Section 343 is based on Section 354 of H.R. 2701. S. 1494
had no similar provision. Section 354 of H.R. 2701 required the
Director of the FBI to submit the report within sixty days
after enactment of the Act. Section 343 extends this time frame
to require submission of the report to the appropriate
congressional committees within 120 days of enactment of the
Act.
Section 344. Public release of information on procedures used in
narcotics airbridge denial program in Peru
Section 344 requires the Director of the CIA to make
publicly available within 30 days an unclassified version of
the CIA Inspector General report entitled ``Procedures Used in
Narcotics Airbridge Denial Program in Peru, 1995-2001,'' dated
August 25, 2008. In releasing such report, the Director may
declassify and release any additional information he deems
appropriate related to the narcotics airbridge denial program
and its subsequent investigation. Section 344 is identical to
Section 355 of H.R. 2701. S. 1494 had no comparable provision.
Section 345. Report on threat from dirty bombs
Section 345 requires the DNI, in consultation with the
Nuclear Regulatory Commission, to submit a report summarizing
intelligence relating to the threat to the United States from
weapons using radiological materials. The report must be
submitted within 180 days after the enactment of the Act.
Section 345 is identical to Section 360B of H.R. 2701. S.
1494 had no similar provision.
Section 346. Report on creation of space intelligence office
Section 346 requires the DNI to submit to Congress a report
on the feasibility and advisability of creating a national
space intelligence office to manage space-related intelligence
assets and access to such assets. This report must be submitted
within 60 days after the enactment of the Act.
Section 346 is based on Section 360E of H.R. 2701. Section
410 of S. 1494 had proposed establishing a National Space
Intelligence Office and had described the mission of the
Office. Although the Committee followed the House on this
provision, there is significant interest in establishing a
National Space Intelligence Office in the future. The Committee
therefore expects that, if the DNI determines the creation of a
national space intelligence office to be feasible and
advisable, the report required by Section 346 will describe how
such an Office would be established, including a description of
the proposed organizational structure of the Office and the
manner in which it would be staffed.
Section 347. Report on attempt to detonate explosive device on
Northwest Airlines flight 253
Section 347 requires the DNI to submit to Congress a report
on the attempt to detonate an explosive device aboard Northwest
Airlines flight number 253 on December 25, 2009. This report
should describe any failures to share or analyze intelligence
or information and the measures the Intelligence Community has
taken to prevent such failures in the future. In the report,
the DNI should describe the roles and responsibilities of
various elements of the Intelligence Community to synchronize
and analyze terrorism information; assess the technological
capabilities of the Federal Government to assess terrorist
threats; describe watchlisting training and procedures;
describe the steps the Intelligence Community has taken to
improve its tradecraft and processes; and assess how to meet
the challenge of exploiting the ever-increasing volume of
information available to the Intelligence Community. In
addition, the DNI should provide any legislative
recommendations deemed appropriate to improve the sharing of
intelligence relating to terrorists. The report must be
submitted no later than 180 days after enactment of this Act.
Section 347 is based on Section 360L of H.R. 2701. S. 1494
had no comparable provision. The Committee has conducted an
inquiry into the attempted December 25, 2009, terrorist attack
and has issued a report, S. Rep. No. 111-199 (2010). Section
347 therefore asks the DNI to provide a description of steps
taken to respond to any findings and recommendations provided
to the DNI from any review by the congressional intelligence
committees in addition to providing the information requested
by Section 360L of H.R. 2701.
Section 348. Repeal or modification of reporting requirements
The congressional intelligence committees frequently
request 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 the committees with an invaluable source
of information about specific matters of concern.
The Committee recognizes, however, that congressional
reporting requirements, particularly recurring reporting
requirements, can place a significant burden on the resources
of the Intelligence Community. It is therefore important for
the Congress to reconsider these reporting requirements on a
periodic basis to ensure that the reports it has requested are
the best mechanism for the Congress to receive the information
it seeks. In some cases, annual reports can be replaced with
briefings or notifications that provide the Congress with more
timely information and offer the Intelligence Community a
direct line of communication to respond to congressional
concerns.
In response to a request from the DNI, the congressional
intelligence committees examined some of these recurring
reporting requirements. Section 348 eliminates certain reports
that were particularly burdensome to the Intelligence Community
in cases where the information in the reports could be obtained
through other means. It also eliminates reports whose
usefulness has diminished either because of changing events or
because the information contained in those reports is
duplicative of information already obtained through other
avenues.
Because the majority of recurring reports provide critical
information relevant to the many challenges facing the
Intelligence Community today, the Committee has proceeded
carefully in eliminating only six statutory reporting
requirements. In addition, the Committee changed the
requirement of one report to make its submission biennial,
rather than annual, and making another report annual, rather
than a semiannual report. The Committee believes that reduction
in the number of reporting requirements will help the
Intelligence Community to allocate its resources properly
towards areas of greatest congressional concern.
The Committee recognizes the concern expressed by the
Intelligence Community about the impact of reporting
requirements. The Committee suggests that the ODNI submit, even
in advance of the Administration's formal requests for
legislation, facts (including the cost of preparing particular
reports and the use of contract personnel, if any, to prepare
reports) and proposals (including the possible consolidation of
reports and lengthening the intervals between them) that will
enable a fuller evaluation of alternatives for providing
information to Congress. Also, for reports that by law are
unclassified, the Committee requests that the ODNI advise the
congressional intelligence committees about any system that is
in place, or should be put in place, for their public
dissemination.
Section 348 is based on Section 341 of S. 1494 and Section
360M of H.R. 2701.
Section 349. Incorporation of reporting requirements
Section 349 incorporates into the Act by reference each
requirement contained in the classified annex to this Act to
submit a report to the congressional intelligence committees.
Section 349 is based on Section 360N of H.R. 2701. Because the
classified information in the annex cannot be included in the
text of the bill, incorporating the reporting provisions of the
classified annex is the only available mechanism to give these
reporting requirements the force of law. The Committee
therefore chose to include Section 349 to reflect the
importance they ascribe to the reporting requirements in the
classified annex.
Section 350. Conforming amendments for report submission dates
Section 350 contains conforming amendments to the National
Security Act made necessary by this Act.
Subtitle E--Other Matters
Section 361. Extension of authority to delete information about receipt
and disposition of foreign gifts and decorations
Current law (5 U.S.C. 7342) requires that certain federal
``employees''--a term that generally applies to all
Intelligence Community officials and personnel and certain
contract personnel, spouses, dependents, and others--file
reports with their employing agency regarding receipt of gifts
or decorations from foreign governments. Following compilation
of these reports, the employing agency is required to file
annually with the Secretary of State detailed information about
the receipt of foreign gifts and decorations by its employees,
including the source of the gift. The Secretary of State is
required to publish a comprehensive list of the agency reports
in the Federal Register.
With respect to Intelligence Community activities, public
disclosure of gifts or decorations in the Federal Register has
the potential to compromise intelligence sources (e.g.,
confirmation of an intelligence relationship with a foreign
government) and could undermine national security. Recognizing
this concern, the Director of Central Intelligence (DCI) was
granted a limited exemption from reporting certain information
about such foreign gifts or decorations where the publication
of the information could adversely affect United States
intelligence sources. Section 1079 of the Intelligence Reform
and Terrorism Prevention Act of 2004 (Pub. L. No. 108-458)
extended a similar exemption to the DNI in addition to applying
the existing exemption to the CIA Director.
Section 361 provides to the heads of each Intelligence
Community element the same limited exemption from specified
public reporting requirements that is currently authorized for
the DNI and CIA Director. The national security concerns that
prompt those exemptions apply equally to other Intelligence
Community elements. Section 361 mandates that the information
not provided to the Secretary of State be provided to the DNI,
who is required to keep a record of such information, to ensure
continued independent oversight of the receipt by Intelligence
Community personnel of foreign gifts or decorations.
Gifts received in the course of ordinary contact between
senior officials of elements of the Intelligence Community and
their foreign counterparts should not be excluded under the
provisions of Section 361 unless there is a serious concern
that the public disclosure of such contacts or gifts would
adversely affect United States intelligence sources or methods.
Section 361 is identical to Section 351 of S. 1494 and
Section 363 of H.R. 2701.
Section 362. Modification of availability of funds for different
intelligence activities
Section 362 conforms the text of Section 504(a)(3)(B) of
the National Security Act of 1947 (50 U.S.C. 414(a)(3)(B)
(governing the funding of intelligence activities)) with the
text of Section 102A(d)(5)(A)(ii) of that Act (50 U.S.C. 403-
1(d)(5)(A)(ii)), as amended by Section 1011(a) of the
Intelligence Reform Act (governing the transfer and
reprogramming by the DNI of certain intelligence funding).
The amendment replaces the ``unforeseen requirements''
standard in Section 504(a)(3)(B) with a more flexible standard
to govern reprogrammings and transfers of funds authorized for
a different intelligence or intelligence-related activity.
Under the new standard, a reprogramming or transfer is
authorized if, in addition to the other requirements of Section
504(a)(3), the new use of funds would ``support an emergent
need, improve program effectiveness, or increase efficiency.''
This modification brings the standard for reprogrammings or
transfers of intelligence funding into conformity with the
standards applicable to reprogrammings and transfers under
Section 102A of the National Security Act of 1947. The
modification preserves congressional oversight of proposed
reprogrammings and transfers while enhancing the Intelligence
Community's ability to carry out missions and functions vital
to national security. Section 362 is identical to Section 352
of S. 1494 and Section 361 of H.R. 2701.
Section 363. Protection of certain national security information
Section 363 amends Section 601 of the National Security Act
of 1947 (50 U.S.C. 421) to increase the criminal penalties
involving the disclosure of the identities of undercover
intelligence officers and agents.
Section 363(a) amends Section 601(a) to increase criminal
penalties for an individual with authorized access to
classified information who intentionally discloses any
information identifying a covert agent, if the individual knows
that the United States is taking affirmative measures to
conceal the covert agent's intelligence relationship to the
United States. Currently, the maximum sentence for disclosure
by someone who has had ``authorized access to classified
information that identifies a covert agent'' is 10 years.
Subsection (a)(1) of Section 364 of this Act increases that
maximum sentence to 15 years.
Currently, under Section 601(b) of the National Security
Act of 1947, the maximum sentence for disclosure by someone who
``as a result of having authorized access to classified
information, learns of the identity of a covert agent'' is 5
years. Subsection (a)(2) of Section 364 of this Act increases
that maximum sentence to 10 years.
Subsection (b) of Section 363 amends Section 603(a) of the
National Security Act of 1947 (50 U.S.C. 423(a)) to provide
that the annual report from the President on the protection of
identities of certain United States undercover intelligence
officers, agents, informants, and sources, also include an
assessment of the need, if any, for modification to improve
legal protections for covert agents. Section 363 is based on
Section 354 of S. 1494 and Section 362 of H.R. 2701.
Section 364. National Intelligence Program budget
Section 601(a) of the Implementing Recommendations of the
9/11 Commission Act of 2007, Pub. L. No. 110-53 (2007) (50
U.S.C. 415c), requires the DNI to disclose the aggregate amount
of funds appropriated by Congress for the National Intelligence
Program for each fiscal year beginning with fiscal year 2007.
Section 601(b) provides that the President may waive or
postpone such disclosure if certain conditions are met,
beginning with fiscal year 2009.
Section 364 amends Section 601 of the Implementing
Recommendations of the 9/11 Commission Act of 2007 to require
additionally that, on the date that the President submits to
Congress the annual budget request, the President shall
disclose to the public the aggregate amount of appropriations
requested for that fiscal year for the National Intelligence
Program. Also, in addition to the President's authority under
present law to waive or postpone disclosure at the end of the
fiscal year, the Committee agreed to provide for presidential
waiver authority related to the public disclosure by the
President of the aggregate amount of funds requested by the
President.
Section 364 is based on Section 355 of S. 1494, except for
the waiver provision that the Committee has added and the
omission from Section 364 of the congressional findings in
Section 355 of S. 1494. H.R. 2701 had no comparable provision.
Section 365. Improving the review authority of the Public Interest
Declassification Board
Section 365 clarifies that the Public Interest
Declassification Board may conduct reviews in response to
requests from the committee of jurisdiction or an individual
member of such committee. It also clarifies that the Board may
consider the proper classification level of records, rather
than simply consider whether or not they should be classified.
This authority is important to address questions of excessive
compartmentation or other over-classification that may impede
needed information sharing, adequate reviews within the
Executive branch, or oversight by the Congress.
Section 365 is identical to Section 356 of S. 1494. H.R.
2701 had no comparable provision.
Section 366. Authority to designate undercover operations to collect
foreign intelligence or counterintelligence
Various provisions in the United States Code preclude the
government from conducting the following activities: (1) the
deposit of funds in a financial institution; (2) the lease
orpurchase of real property; (3) the establishment and operation of a
proprietary business on a commercial basis; and (4) the utilization of
proceeds of the operation to offset necessary and reasonable
operational expenses. In recognition, however, of the important role
such activities may play in the conduct of undercover operations, Pub.
L. No. 102-395 (1992) (28 U.S.C. 533 note) provides a mechanism for the
FBI to obtain an exemption from these otherwise applicable laws.
Under Pub. L. No. 102-395, an exemption may be obtained if
the proposed activity is certified by the Director of the FBI
and the Attorney General as being necessary to the conduct of
the undercover operation. For national security investigations,
the Director of the FBI may delegate certifying authority to an
Assistant Director in the Counterterrorism,
Counterintelligence, or Cyber Divisions at the FBI, and the
Attorney General may delegate such authority to the Assistant
Attorney General for National Security at the Department of
Justice.
Section 366 amends the current delegation level for both
the FBI and the Department of Justice. It allows the FBI
Director to delegate certifying authority to a level not lower
than a Deputy Assistant Director in the National Security
Branch. It also allows the Attorney General to delegate the
certifying authority to a level not lower than a Deputy
Assistant Attorney General in the National Security Division.
It should be noted that this delegation level for the
Department of Justice remains at a higher level than that which
is currently required in criminal undercover operations.
The Committee is concerned that, because of both statutory
and administrative limitations, the current delegation levels
are insufficient to allow for timely processing of undercover
exemptions. The success and safety of undercover operations can
depend in part on the ability to do such simple tasks as open a
bank account or rent an apartment for cover purposes in a
timely manner. While the creation of the National Security
Division at the Department of Justice has led to more efficient
processing of some exemption requests, there remains room for
improvement. The Committee believes that the new delegation
levels established in Section 367 will encourage and facilitate
further internal and administrative improvements in processing
undercover exemptions both at the FBI and the Department of
Justice, without sacrificing needed oversight within the FBI
and Department of Justice.
Section 366 is identical to Section 357 of S. 1494. H.R.
2701 did contain a comparable provision.
Section 367. Security clearances: reports; reciprocity
Section 367 requires a series of reports and audits on the
security clearance process and measurement of improvements in
the timeliness of security clearance process. The reports and
audits required under this section are intended to provide
Congress with metrics to evaluate the efficacy of the security
clearance process.
Subsection (a) of Section 367 amends Title V of the
National Security Act of 1947 to add a new section 506H,
requiring an audit and an annual report. Under new Section
506H(a), the President must conduct an audit every four years
of how the Executive branch determines whether a security
clearance is required for a particular position in the Federal
Government. This audit must be submitted to Congress within 30
days of its completion.
New Section 506H(b) requires an annual report on the number
of employees and contractors within the Federal Government who
held or were approved for security clearances; the amount of
time taken for each element of the Intelligence Community to
process security clearance determinations; the number of
security clearance investigations that have remained open for
extended period of time; and the results of security clearance
investigation and determinations. The Committee intend for this
requirement to cover all contractor employees, including those
employed by commodity contractors and commercial contractors.
Section 367(a)(2) requires a report on security clearance
investigations and adjudication, to be submitted no later than
180 days after the enactment of this Act. That report requires
information on security clearance adjudication guidance and
metrics, a plan to improve the professional development of
security clearance adjudicator, metrics to evaluate the
investigation quality and the effectiveness of interagency
clearance reciprocity, and an assessment of the feasibility,
counterintelligence risk, and cost effectiveness of reducing
the number of agencies that conduct the investigation and
adjudication of security clearances. The President may also
consider the advisability of reducing the number of agencies
involved in the investigation and adjudication of security
clearances.
Under Section 367(c), the Inspector General of the
Intelligence Community must conduct an audit of the reciprocity
of security clearances in the Intelligence Community. This
audit will include an assessment of the time required to obtain
reciprocal security clearance for an Intelligence Community
employee or contractors detailed to, or seeking permanent
employment with, another Intelligence Community element. This
audit must be submitted to the congressional intelligence
committees no later than 180 days after enactment of the Act.
While the reports required by Section 367 focus on the
security clearance process, the Committee recognizes that
safeguarding national security information depends upon
ensuring not only that new individuals successfully complete
the security clearance process, but also that current holders
of clearances receive appropriate and ongoing scrutiny for
their continued fitness for access to classified information.
The Committee encourages the DNI, in consultation with the
Office of Personnel Management if necessary, to develop more
effective methods for identifying, on a continual basis,
current holders of security clearances within the Intelligence
Community who may pose a security risk.
Section 367 is based on Section 366 of H.R. 2701. S. 1494
had no comparable provision. Section 366 of H.R. 2701 had also
included a provision requiring the DNI to appoint an ombudsman
for intelligence community security clearances, who would
annually report to the congressional intelligence committees on
the concerns, complaints and questions received from persons
applying for security clearances.
Section 368. Correcting long-standing material weaknesses
Section 368 requires the heads of the five intelligence
agencies that have been specifically required to produce
auditable financial statements (CIA, DIA, NGA, NRO, and NSA) to
designate each senior management official who is responsible
for correcting long-standing, correctable material weaknesses,
and to notify the DNI and the congressional intelligence
committees of these designations.
Under Section 368, the term ``material weakness'' has the
meaning given that term under OMB Circular A-123, Management's
Responsibility for Internal Control, revised December 21, 2004.
In particular, ``[a] material weakness in internal controls is
a reportable condition, or combination of reportable
conditions, that results in more than a remote likelihood that
a material misstatement of the financial statements, or other
significant financial reports, will not be prevented or
detected.''
The Committee has been dissatisfied with the lack of
progress in correcting material weaknesses. Section 368 is
intended to ensure there is clear accountability about who is
responsible for correcting these deficiencies.
Section 368 pertains only to ``long-standing'' material
weaknesses, defined as those that were identified in annual
financial reports prior to fiscal year 2007. Also, Section 368
pertains only to material weaknesses that are correctable in
the near term--i.e., those where correction is not
substantially dependent on a business information system that
will not be fielded prior to the end of fiscal year 2010. The
head of an element of the Intelligence Community may be
designated as the responsible official.
Section 368 also requires a senior intelligence management
official to notify the head of the element of the Intelligence
Community when a long-standing material weakness is corrected.
The determination that the specified long-standing correctable
material weakness has been corrected must be based on the
findings of an independent review conducted by an independent
auditor, who may be an auditor in the office of the agency's
inspector general. The element head shall notify the
congressional intelligence committees that the material
weakness has been corrected.
The Committee believes that this legislative step is
necessary to establish clear accountability for correcting
these long-standing correctable material weaknesses. Section
368 is based on Section 358 of S. 1494. H.R. 2701 had no
comparable provision.
Section 369. Intelligence community financial improvement and audit
readiness
Section 369 requires the DNI to conduct a review of the
status of auditability compliance of each element of the
Intelligence Community and to develop a plan and timeline to
achieve a full, unqualified audit of each element of the
Intelligence Community by September 30, 2013. This review and
development of a plan must be completed within 180 days after
enactment of this Act.
Section 369 is based on Section 368 of H.R. 2701. S. 1494
had no comparable provision. The Committee has removed the
sense of the Congress contained in Section 368 of H.R. 2701.
Although Section 348 of this bill repeals an annual report on
progress in auditable financial statements, the Committee
expects to be informed of the status of the review required by
Section 369, as well as the plan and timeline established to
achieve full, unqualified audits.
TITLE IV--MATTERS RELATING TO ELEMENTS OF THE INTELLIGENCE COMMUNITY
Subtitle A--Office of the Director of National Intelligence
Section 401. Accountability reviews by the Director of National
Intelligence
Section 401 provides that the DNI shall have new authority
to conduct accountability reviews of elements within the
Intelligence Community and the personnel of those elements. The
primary innovation of this provision is the authority to
conduct accountability reviews concerning an entire element of
the Intelligence Community in relation to failures or
deficiencies.
This accountability process is intended to be separate and
distinct from any accountability reviews being conducted
internally by the elements of the Intelligence Community or
their Inspectors General, and is not intended to limit the
authorities of the DNI with respect to his supervision of the
CIA.
Section 401 requires that the DNI, in consultation with the
Attorney General, formulate guidelines and procedures that will
govern accountability reviews. The Committee envisions that
these guidelines will govern the process by which the DNI can
collect sufficient information from the Intelligence Community
to assess accountability for a given incident.
Any findings and recommendations for corrective or punitive
action made by the DNI shall be provided to the head of the
applicable element of the Intelligence Community. If the head
of such element does not implement the recommendations, then
the congressional intelligence committees must be notified and
provided the reasons for the determination by the head of the
element.
In addition, to avoid a construction that a committee of
Congress on its own could require such a review over the
objection of the DNI, a concern raised by the ODNI, the section
makes clear that the DNI shall conduct a review if the DNI
determines it is necessary, and the DNI may conduct an
accountability review (but is not statutorily required to do
so) if requested by one of the congressional intelligence
committees.
The Committee hopes that this modest increase in the DNI's
authorities will encourage elements within the Intelligence
Community to put their houses in order by imposing
accountability for significant failures and deficiencies.
Section 401 will enable the DNI to undertake an accountability
review in the event that an element of the Intelligence
Community cannot or will not take appropriate action.
Section 401 is based on Section 401 of S. 1494. H.R. 2701
had no comparable provision.
Section 402. Authorities for intelligence information sharing
Section 402 amends Section 102A(d)(2) of the National
Security Act of 1947 (50 U.S.C. 403-1(d)(2)) 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, even
if those needs arise outside the Intelligence Community.
The new Section 102A(d)(2)(B) 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(d)(2)(C) grants
the DNI authority to provide funds to non-National Intelligence
Program activities for the purpose of addressing critical gaps
in intelligence information access or sharing capabilities.
Section 402(b) makes clear that the head of any department
or agency is authorized to receive and utilize funds or systems
made available to the department or agency by the DNI. Without
these new authorities, development and implementation of
necessary capabilities could be delayed by an agency's lack of
authority to accept or utilize systems funded from the National
Intelligence Program, inability to use or identify current-year
funding, or concerns regarding the augmentation of
appropriations.
These authorities are similar to those granted to the NGA
for developing and fielding systems of common concern relating
to imagery intelligence and geospatial intelligence. See
Section 105(b)(2)(D)(ii) of the National Security Act of 1947
(50 U.S.C. 403-5).
Section 402 is based on Section 402 of S. 1494. H.R. 2701
had no comparable provision. The Committee placed the
authorities in Section 102A(d) of the National Security Act of
1947, rather than Section 102A(g) of the National Security Act
of 1947, as was in S. 1494, to ensure that any transfers
pursuant to this authority would be subject to the terms and
conditions governing transfers and reprogramming. Because the
terms and conditions governing transfers and reprogramming
include prior notice to the congressional intelligence
committees, which would allow the congressional intelligence
committees to assess the use of this authority, the Committee
also eliminated the reporting requirements included in Section
402 of S. 1494.
Section 403. Location of the Office of the Director of National
Intelligence
Section 403 addresses the issue of the location of the
Office of the DNI. Section 403 repeals the ban on the co-
location of the Office of the DNI with any other Intelligence
Community element, which took effect on October 1, 2008, by
replacing that provision of the National Security Act of 1947
(50 U.S.C. 403-3) with a new subsection 103(e) that allows the
ODNI to be located outside the District of Columbia within the
Washington Metropolitan Region.
In his 2008 legislative request for the fiscal year 2009
authorization, the DNI asked, for the first time, that Congress
provide that ``[t]he headquarters of the Office of the Director
of National Intelligence may be located in the District of
Columbia or elsewhere in the Metropolitan Region, as that term
is defined in Section 8301 of title 40, United States Code.''
The purpose of this section is to provide statutory
authorization for the location of the ODNI outside of the
District of Columbia.
Section 72 of Title 4, United States Code--a codification
enacted in 1947 which derived from a statute signed into law by
President George Washington in 1790--requires that ``[a]ll
offices attached to the seat of government shall be exercised
in the District of Columbia and not elsewhere, except as
otherwise expressly provided by law.'' In 1955, just eight
years after the 1947 codification, Congress granted statutory
authority for the Director of Central Intelligence to provide
for a headquarters of the Central Intelligence Agency either in
the District of Columbia ``or elsewhere.'' 69 Stat. 324, 349.
Pursuant to the Committee's direction during consideration
of the fiscal year 2009 authorization act, the ODNI requested
guidance from the Department of Justice's Office of Legal
Counsel (OLC) about the need for a statute authorizing the
location of the ODNI outside the District of Columbia. The ODNI
has informed the Committee that OLC informally advised the ODNI
that there is no basis to exclude the ODNI from the requirement
of 4 U.S.C. 72 and that a specific exception is needed to
authorize the location of the ODNI headquarters outside the
District of Columbia. The Committee urges the ODNI to continue
to study, and report to the congressional intelligence
committees, about the impact if any of the ODNI's current
location outside of the District of Columbia on the daily
implementation of the ODNI's responsibilities with respect to
the President, the Congress, and the elements of the
Intelligence Community.
Section 403 is based on Section 404 of S. 1494 and Section
401 of H.R. 2701.
Section 404. Title and appointment of the Chief Information Officer of
the Intelligence Community
Section 404 expressly designates the position of Chief
Information Officer in the Office of the Director of National
Intelligence as Chief Information Officer of the Intelligence
Community (IC CIO). The modification to this title is
consistent with the position's overall responsibilities as
outlined in Section 103G of the National Security Act of 1947
(50 U.S.C. 403-3g). Section 404 also eliminates the requirement
that the IC CIO be confirmed by the Senate while retaining the
requirement that the IC CIO be appointed by the President. The
continued requirement of presidential appointment emphasizes
that the IC CIO has important responsibilities for the
Intelligence Community enterprise architecture with respect to
the whole of the Intelligence Community.
Section 404 is identical to Section 406 of S. 1494 and
similar to Section 405 of H.R. 2701. Section 405 of H.R. 2701
did not eliminate the requirement that the IC CIO be confirmed
by the Senate. To accommodate the possibility that ODNI might
not have individuals who meet the requisite requirements of the
Vacancies Act to serve in an acting capacity in Presidentially
appointed and Senate confirmed positions, a concern the ODNI
had raised with respect to the IC CIO position, Section 302 of
H.R. 2701 provided authority for temporary appointment to fill
vacancies in Senate confirmed positions in the Office of the
Director of National Intelligence. Because Section 404
eliminates the requirement that the IC CIO be confirmed by the
Senate, the Committee did not include Section 302 of H.R. 2701
in this bill.
Section 405. Inspector General of the Intelligence Community
Section 1078 of the Intelligence Reform Act authorizes the
DNI to establish an Office of Inspector General if the DNI
determines that an Inspector General (IG) would be beneficial
to improving the operations and effectiveness of the ODNI. It
further provides that the DNI may grant to the IG any of the
duties, responsibilities, and authorities set forth in the
Inspector General Act of 1978. The DNI has appointed an IG and
has granted certain authorities pursuant to DNI Instruction No.
2005-10 (September 7, 2005).
As the congressional intelligence committees have urged in
reports on proposed authorization acts for fiscal years 2006
through 2009, a strong IG is vital to achieving the goal, set
forth in the Intelligence Reform Act, of improving the
operations and effectiveness of the Intelligence Community. It
is also vital to achieving the broader goal of identifying
problems and deficiencies, wherever they may be found in the
Intelligence Community, with respect to matters within the
responsibility and authority of the DNI, including the manner
in which elements of the Intelligence Community interact with
each other in providing access to information and undertaking
joint or cooperative activities. By way of a new Section 103H
of the National Security Act of 1947, Section 405 of this Act
establishes an Inspector General of the Intelligence Community
in order to provide to the DNI, and, through reports, to the
Congress, the benefits of an IG with full statutory authorities
and the requisite independence.
The Office of the IG is to be established within the ODNI.
The Office of the IG created by this bill is to replace and not
duplicate the current Office of the IG for the ODNI. The IG
will keep both the DNI and the congressional intelligence
committees fully and currently informed about problems and
deficiencies in Intelligence Community programs and operations
and the need for corrective actions. The IG will be appointed
by the President, with the advice and consent of the Senate,
and will report directly to the DNI. To bolster the IG's
independence within the Intelligence Community, the IG may be
removed only by the President, who must communicate the reasons
for the removal to the congressional intelligence committees.
To ensure that this language is not construed to prohibit an
immediate personnel action otherwise authorized by law, the
Committee added the same clarifying language found in the
Inspector General Reform Act of 2008 (Pub. L. No. 110-409).
Under the new subsection 103H(e), the DNI may prohibit the
IG from conducting an investigation, inspection, audit, or
review if the DNI determines that is necessary to protect vital
national security interests. If the DNI exercises this
authority, the DNI must provide the reasons to the
congressional intelligence committees within seven days. The IG
may submit comments in response to the DNI's justification to
the congressional intelligence committees.
The IG will have direct and prompt access to the DNI and
any Intelligence Community employee, or employee of a
contractor, whose testimony is needed. The IG will also have
direct access to all records that relate to programs and
activities for which the IG has responsibility. Failure to
cooperate will be grounds for appropriate administrative
action.
The IG will have subpoena authority. However, information
within the possession of the United States Government must be
obtained through other procedures. Subject to the DNI's
concurrence, the IG may request information from any United
States Government department, agency, or element. They must
provide the information to the IG insofar as is practicable and
not in violation of law or regulation.
The IG must submit semiannual reports to the DNI that
include a description of significant problems relating to
Intelligence Community programs and activities within the
responsibility and authority of the DNI. Portions of the
reports involving a component of a department of the United
States Government are to be provided to the head of the
department at the same time the report is provided to the DNI.
The reports must include a description of IGrecommendations and
a statement whether corrective action has been completed. Within 30
days of receiving each semiannual report from the IG, the DNI must
submit it to Congress.
The IG must immediately report to the DNI particularly
serious or flagrant problems, abuses, or deficiencies. Within
seven days, the DNI must transmit those reports to the
intelligence committees together with any comments. In the
event the IG is unable to resolve any differences with the DNI
affecting the duties or responsibilities of the IG or the IG
conducts an investigation, inspection, audit, or review that
focuses on certain high-ranking officials, the IG is authorized
to report directly to the congressional intelligence
committees. The Central Intelligence Agency Act of 1949
contains similar language with regard to reports by the CIA
Inspector General on high-ranking CIA officials. (50 U.S.C.
403q(d)(3)).
Intelligence Community employees, or employees of
contractors, who intend to report to Congress an ``urgent
concern''--such as a violation of law or Executive order, a
false statement to Congress, or a willful withholding from
Congress--may report such complaints and supporting information
to the IG. Following a review by the IG to determine the
credibility of the complaint or information, the IG must
transmit such complaint and information to the DNI. On
receiving the complaints or information from the IG (together
with the IG's credibility determination), the DNI must transmit
the complaint or information to the congressional 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 congressional intelligence committees by
following appropriate security practices outlined by the DNI.
Reprisals or threats of reprisal against reporting individuals
constitute reportable ``urgent concerns.'' The congressional
intelligence committees will not tolerate actions by the DNI,
or by any Intelligence Community element, constituting a
reprisal for reporting an ``urgent concern'' or any other
matter to Congress. Nonetheless, reporting individuals should
ensure that the complaint and supporting information are
provided to Congress consistent with appropriate procedures
designed to protect intelligence sources and methods and other
sensitive matters.
For matters within the jurisdiction of both the IG of the
Intelligence Community and an IG for another Intelligence
Community element (or for a parent department or agency), the
Inspectors General shall expeditiously resolve who will
undertake the investigation, inspection, audit, or review. In
attempting to resolve that question, the Inspectors General may
request the assistance of the Intelligence Community Inspectors
General Forum (a presently functioning body whose existence is
ratified by Section 405). In the event that the Inspectors
General are still unable to resolve the question, they shall
submit it to the DNI and the head of the agency or department
for resolution.
An IG for an Intelligence Community element must share the
results of any investigation, inspection, audit, or evaluation
with any other IG, including the Inspector General of the
Intelligence Community, who otherwise would have had
jurisdiction over the investigation, inspection, audit, or
evaluation.
Consistent with existing law, the Inspector General must
report to the Attorney General any information, allegation, or
complaint received by the Inspector General relating to
violations of Federal criminal law.
Section 405 also provides for the transition from the
Office of the IG of the ODNI to the Office of the IG of the
Intelligence Community. The Committee provided that Section 8K
of the Inspector General Act of 1978 (5 U.S.C. App. Note),
which pertains to the former office, is repealed on the date
that the Senate-confirmed Inspector General assumes the duties
of the Office of the IG of the Intelligence Community.
Following the reporting of the conference on the
Intelligence Authorization Act for Fiscal Year 2008, Congress
enacted the Inspector General Reform Act of 2008, Pub. L. No.
110-409. In light of this recent determination by the Congress
to protect and augment the authority of Inspectors General
throughout the Government, Section 405 contains conforming
changes in the IG provision in this conference report. Among
these provisions is authority for the IG to appoint a counsel.
Section 405 makes clear that it is not to be construed to alter
the duties and responsibilities of the General Counsel of the
Office of the Director of National Intelligence.
Section 405 is similar to Section 407 of S. 1494 and
Section 406 of H.R. 2701.
Section 406. Chief Financial Officer of the Intelligence Community
Section 406 amends Title I of the National Security Act of
1947 (50 U.S.C. 402 et seq.) to establish in statute a Chief
Financial Officer of the Intelligence Community (IC CFO) to
assist the DNI in carrying out budgetary, acquisition, and
financial management responsibilities.
By way of a new Section 103I of the National Security Act
of 1947, under Section 406, the IC CFO will, to the extent
applicable, have the duties, responsibilities, and authorities
specified in the Chief Financial Officers Act of 1990. The IC
CFO will serve as the principal advisor to the DNI and the
Principal Deputy DNI on the management and allocation of
Intelligence Community budgetary resources and shall
participate in overseeing a comprehensive and integrated
strategic process for resource management within the
Intelligence Community. Section 406 charges the IC CFO with
ensuring that the strategic plan and architectures of the DNI
are based on budgetary constraints as specified in the future
budget projections required in Section 325.
Section 406 also charges the IC CFO with receiving
verification from appropriate authorities that major system
acquisitions satisfy validated national requirements for
meeting the DNI's strategic plans and that such requirements
are prioritized based on budgetary constraints as specified in
the future budget projections required in Section 325. To
guarantee this is achieved in practice, under Section 406,
prior to obligation or expenditure of funds for major system
acquisitions to proceed to Milestone A (development) or
Milestone B (production), requirements must be validated and
prioritized based on budgetary constraints as specified in
Section 325.
Section 406 requires that the IC CFO preside, or assist in
presiding, over any mission requirement, architectural, or
acquisition board formed by the ODNI, and to coordinate and
approve representations to Congress by the Intelligence
Community regarding National Intelligence Program budgetary
resources. An individual serving as the IC CFO may not at the
same time also serve as a CFO of any other department or
agency.
Section 406 is based on Section 408 of S. 1494. H.R. 2701
had no comparable provision.
Section 407. Leadership and location of certain offices and officials
Section 407 confirms in statute that various offices are
housed within the ODNI: (1) the Chief Information Officer of
the Intelligence Community; (2) the Inspector General of the
Intelligence Community; (3) the Director of the National
Counterterrorism Center (NCTC); (4) the Director of the
National Counter Proliferation Center (NCPC); and (5) the Chief
Financial Officer of the Intelligence Community. It also
expressly provides in statute that the DNI shall appoint the
Director of the NCPC, which is what has been done by
administrative delegation from the President.
Section 407 is identical to Section 409 of S. 1494. H.R.
2701 had no comparable provision.
Section 408. Protection of certain files of the Office of the Director
of National Intelligence
In the CIA Information Act, Pub. L. No. No. 98-477 (October
15, 1984) (50 U.S.C. 431), Congress authorized the Director of
Central Intelligence 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 extended the
exemption to the operational files of the NGA, NSA, NRO, and
DIA. It 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).
Components of the ODNI, including NCTC, require access to
information contained in CIA and other operational files. To
that end, section 408 adds a new section 706 to the National
Security Act of 1947 to make clear that operational files of
any Intelligence Community component, for which an operational
files exemption is applicable, will not lose their exemption
from FOIA search, review, disclosure, or publication solely
because they have been provided to the ODNI.
The new Section 706 provides several limitations on what
records can be considered operational files. The exemption does
not apply to records that contain information derived
ordisseminated from an operational file, unless that record is created
for the sole purpose of organizing the operational file for use by the
ODNI. It also does not apply to records disseminated beyond the ODNI.
As Congress has provided in the operational files
exemptions for the CIA and other Intelligence Community
elements, subsection (d) 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 exemption from search and review would also
not apply to the subject matter of a congressional or Executive
branch investigation into improprieties or violations of law.
Subsection (e) provides for a decennial review by the DNI
to determine whether exemptions may be removed from any
category of exempted files. This review shall include
consideration of the historical value or other public interest
in the subject matter of those categories and the potential for
declassifying a significant part of the information contained
in them. The Committee underscores the importance of this
requirement, which applies to the other operational exemptions
in Title VII. The Committee also expects the DNI to submit the
results of such review to the congressional intelligence
committees in a timely manner.
Subsection (f) describes the manner of judicial review of
the question of whether the ODNI has withheld records
improperly under the operational file exemption. In particular,
subsection (f)(2) permits the ODNI to meet its burden to prove
the validity of the exemption by submitting a sworn written
submission that exempted files likely to contain responsive
records are records provided to the ODNI by an element of the
Intelligence Community, from the exempted operational files of
such element.
Section 408 is identical to Section 411 of S. 1494. H.R.
2701 did not contain a comparable provision.
Section 409. Counterintelligence initiatives for the intelligence
community
Section 409 amends Section 1102(a) of the National Security
Act of 1947 (50 U.S.C. 442a) to eliminate the requirement that
the NCIX perform certain security functions more appropriately
carried out by other components of the Intelligence Community.
Section 409 is identical to Section 412 of S. 1494. H.R.
2701 had no comparable provision.
Section 410. 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 411 amends FACA to extend this exemption to advisory
committees established or used by the ODNI if the DNI
determines that for reasons of national security such advisory
committee cannot comply with the requirements of the Act. The
section also requires the DNI and the Director of CIA each to
submit annual reports, which may be classified, on their use of
these exemptions.
Section 410 is based on Section 414 of S. 1494. H.R. 2701
did not contain a comparable provision.
Section 411. Membership of the Director of National Intelligence on the
Transportation Security Oversight Board
Section 411 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.
The Transportation Security Oversight Board is responsible for,
among other things, coordinating intelligence, security, and
law enforcement activities affecting transportation and
facilitating the sharing of intelligence, security, and law
enforcement information affecting transportation among Federal
agencies.
Section 411 is identical to Section 415 of S. 1494 and
Section 402 of H.R. 2701.
Section 412. Repeal of certain authorities relating to the Office of
the National Counterintelligence Executive
Section 412 amends the authorities and structure 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 412
is identical to Section 416 of S. 1494 and Section 423 of H.R.
2701.
Section 413. Misuse of the Office of the Director of National
Intelligence name, initials or seal
Section 413 prohibits the unauthorized use of the official
name, initials or seal of the ODNI. Section 413 also permits
the Attorney General to pursue injunctive relief for such
unauthorized use. The provision is modeled on Section 13 of the
CIA Act of 1949 (50 U.S.C. 403(m)) which provides similar
protection against misuse of the name, initials, or seal of the
CIA.
Section 413 is identical to Section 417 of S. 1494 and
similar to Section 365 of H.R. 2701.
Section 414. Plan to implement recommendations of the data center
energy efficiency reports
Section 414 requires the DNI to develop a plan to implement
across the Intelligence Community the recommendations of the
Environmental Protection Agency report on improving data center
energy efficiency (submitted pursuant to Pub. L. No. 109-431,
120 Stat. 2920). This planning requirement is intended to
encourage the Intelligence Community to fulfill its
responsibility to assess the use of environmental resources
with regard to the power, space, and cooling challenges of
Intelligence Community data centers and to promote the use of
energy-efficient technologies to reduce consumption of
resources by the Intelligence Community's data centers.
Section 414 is similar to Section 404 of H.R. 2701. S. 1494
did not have a comparable provision.
Section 415. Director of National Intelligence support for reviews of
International Traffic in Arms Regulations and Export
Administration Regulations
Section 415 provides that the DNI may support any review
conducted by a department or agency of the federal government
of the International Traffic in Arms Regulations or Export
Administration Regulations, including a review of technologies
and goods on the U.S. Munitions List and Commerce Control List
that may warrant controls that are different or additional to
the controls such technologies and goods are subject to at the
time of the review.
Section 415 is identical to Section 407 of H.R. 2701. S.
1494 had no comparable provision.
Subtitle B--Central Intelligence Agency
Section 421. Additional functions and authorities for protective
personnel of the Central Intelligence Agency
Section 421 amends Section 5(a)(4) of the CIA Act of 1949
(50 U.S.C. 403f(a)(4)), which authorizes protective functions
by designated security personnel who serve on CIA protective
details. Section 421 authorizes the CIA Director on the request
of the DNI to make CIA protective detail personnel available to
the DNI and to other personnel within the ODNI.
Section 421 is identical to Section 421 of S. 1494. H.R.
2701 did not include a comparable provision.
Section 422. Appeals from decisions involving contracts of the Central
Intelligence Agency
Section 422 amends Section 8(d) of the Contract Disputes
Act of 1978 (41 U.S.C. 607(d)) to provide that an appeal from a
dispute arising out of a CIA contract shall be filed with
whichever of the Armed Services Board of Contract Appeals or
the Civilian Board of Contract Appeals is specified by the
contracting officer and that such board shall have jurisdiction
to decide the appeal.
Section 422 is based on Section 422 of S. 1494 and Section
413 of H.R. 2701.
Section 423. Deputy Director of the Central Intelligence Agency
Section 423 provides for a Deputy Director of the CIA in a
new Section 104B of the National Security Act of 1947 (50
U.S.C. 402 et seq.). Under the new Section 104B, the Deputy
Director of the CIA shall be appointed by the President, shall
assist the Director of the CIA in carrying out the Director's
duties and responsibilities, and shall assume those duties and
responsibilities in the event of the Director's absence,
disability, or when the position is vacant.
Prior to the Intelligence Reform and Terrorism Prevention
Act of 2004, Congress had provided by law for the appointment
by the President, with Senate confirmation, of a Deputy
Director of Central Intelligence. The Intelligence Reform Act
abolished that position and was silent on any deputy to the
Director of the CIA. Since enactment of the Intelligence Reform
Act, the position of Deputy Director at the CIA has been solely
a product of administrative action.
Given the sensitive nature of the CIA's operations, the
position of Deputy Director merits consideration through the
process of presidential appointment. The Committee agreed that
the position would not be subject to the requirement of Senate
confirmation, as was called for in Section 423 of S. 1494.
Section 423(c) provides that the amendments made by Section
423 apply prospectively. Therefore, the individual performing
the duties of Deputy Director of the CIA on the date of
enactment will not be affected by the amendments. Section 423
is identical to Section 414 of H.R. 2701 and similar to Section
423 of S. 1494.
Section 424. Authority to authorize travel on a common carrier
Section 424 amends Section 116(b) of the National Security
Act of 1947 (50 U.S.C. 404k(b)). Section 116(b) of the National
Security Act of 1947 allows the DNI to authorize travel on
common carriers for certain intelligence collection personnel,
and it further allows the DNI to delegate this authority to the
Principal Deputy Director of National Intelligence or to the
Director of the Central Intelligence Agency. Section 424
permits the Director of the CIA to re-delegate this authority
within the CIA.
Section 424 is identical to Section 424 of S. 1494. H.R.
2701 had no comparable provision.
Section 425. Inspector General of the Central Intelligence Agency
Section 425 amends Section 17 of the Central Intelligence
Agency Act of 1949 (50 U.S.C. 403q(b)), which established a
statutory CIA Inspector General. The amendment updates and
clarifies the statute in light of revisions made by Congress in
the Inspector General Reform Act of 2008 (Pub. L. No. 110-409)
and the recommendations in a recent semiannual report of the
CIA IG. Among other provisions, Section 425 expands the
protections against reprisals that now apply to CIA employees
who bring complaints to the CIA IG to any CIA employee who
provides information to the CIA IG. Section 425 provides that
the CIA IG has final approval of the selection of internal and
external candidates for employment with the Office of the IG
and may appoint a counsel who reports to the IG. Section 425
provides that this is not to be construed to alter the duties
and responsibilities of the General Counsel of the CIA.
Section 425 is based on Section 425 of S. 1494. Section 415
of H.R. 2701 expanded the protections against reprisals to any
CIA employee who provides information to the CIA IG.
Section 426. Budget of the Inspector General of the Central
Intelligence Agency
Section 426 further amends Section 17 of the CIA Act to
require the DNI to provide to the President the budget amount
requested by the CIA IG and to provide that information to the
congressional appropriations and intelligence committees,
together with any comments of the CIA IG. These changes are
similar to revisions made by Congress in the Inspector General
Reform Act of 2008 (Pub. L. No. 110-409) with respect to the
budgets of other inspectors general within the federal
government.
Section 426 is identical to Section 426 of S. 1494. H.R.
2701 had no comparable provision.
Section 427. Public availability of unclassified versions of certain
intelligence products
Section 427 requires the Director of the Central
Intelligence Agency to make publicly available unclassified
versions of four documents which assess information gained from
the interrogation of high value detainees. These documents are
dated April 3, 2003, July 15, 2004, March 2, 2005, and June 1,
2005.
Section 427 is identical to Section 427 of S. 1494. The
House bill had no comparable provision.
Subtitle C--Defense Intelligence Components
Section 431. Inspector general matters
The Inspector General Act of 1978 (5 U.S.C. App.)
establishes a government-wide system of inspectors general,
some appointed by the President with the advice and consent of
the Senate and others ``administratively appointed'' by the
heads of their respective Federal entities. These IGs are
authorized to ``conduct and supervise audits and investigations
relating to the programs and operations'' of the government and
``to promote economy, efficiency, and effectiveness in the
administration of, and. . .to prevent and detect fraud and
abuse in, such programs and operations.'' 5 U.S.C. App. 2. They
also perform an important reporting function: ``keeping the
head of the establishment and the Congress fully and currently
informed about problems and deficiencies relating to the
administration of. . .programs and operations and the necessity
for and progress of corrective action.'' Id. The investigative
authorities exercised by inspectors general, and their relative
independence from the government operations they audit and
investigate, provide an important mechanism to ensure that the
operations of the government are conducted as efficiently and
effectively as possible.
The IGs of the CIA and Departments of Defense, Energy,
Homeland Security, Justice, State, and Treasury are appointed
by the President with the advice and consent of the Senate.
These IGs--authorized by either the Inspector General Act of
1978 or Section 17 of the CIA Act--are independent within their
organizations, subject to certain specified authorities of the
head of their respective departments or agencies. They also
have explicit statutory authority to access information from
their departments or agencies or other United States Government
departments and agencies and may use subpoenas to access
information (e.g., from an agency contractor) necessary to
carry out their authorized functions.
The NRO, DIA, NSA and NGA have established their own
``administrative'' Inspectors General. However, because they
are not identified in Section 8G of the Inspector General Act
of 1978, they lack explicit statutory authorization to access
information relevant to their audits or investigations, or to
compel the production of information via subpoena. This lack of
authority could impede access to information in particular,
information from contractors that is necessary for them to
perform their important function. These inspectors general also
lack the indicia of independence necessary for the Government
Accountability Office (GAO) to recognize their annual financial
statement audits as being in compliance with the Chief
Financial Officers Act of 1990 (Pub. L. No. 101-576). The lack
of independence also prevents the DoD IG, and would prevent the
Inspector General of the Intelligence Community, from relying
on the results of NRO, DIA, NSA, or NGA inspector general
audits or investigations when such audits must meet ``generally
accepted government auditing standards.''
To provide an additional level of independence and to
ensure prompt access to the information necessary for these IGs
to perform their audits and investigations, Section 431 amends
Section 8G(a)(2) of the Inspector General Act of 1978 to
include the NRO, DIA, NSA, and NGA as ``designated federal
entities.'' As so designated, the heads of these Intelligence
Community elements will be required by statute to
administratively appoint inspectors general for these agencies.
Also, as designated inspectors general under the Inspector
General Act of 1978, these inspectors general will be
responsible to the heads of the NRO, DIA, NSA, and NGA. The
removal or transfer of any of these inspectors general by the
head of their office or agency must be promptly reported to the
congressional intelligence committees. These inspectors general
will also be able to exercise other investigative authorities,
including those governing access to information and the
issuance of subpoenas, utilized by other inspectors general
under the Inspector General Act of 1978.
To protect vital national security interests, Section 431
permits the Secretary of Defense, in consultation with the DNI,
to prohibit the inspectors general of the NRO, DIA, NSA, and
NGA from initiating, carrying out, or completing any audit or
investigation they are otherwise authorized to conduct. This
authority is similar to the authority of the CIA Director under
Section 17 of the CIA Act with respect to the Inspector General
of the CIA and the authority of the Secretary of Defense under
Section 8 of the Inspector General Act of 1978 with respect to
the DoD Inspector General. It will provide the Secretary of
Defense, in consultation with the DNI, a mechanism to protect
extremely sensitive intelligence sources and methods or other
vital national security interests. The Committee expects that
this authority will be exercised rarely by the DNI or the
Secretary of Defense.
Section 431 is identical to Section 431 of S. 1494. H.R.
2701 had no comparable provision.
Section 432. 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 the Department of
Defense and the CIA. In the NIMA Act, Congress cited a need
``to provide a single agency focus for the growing number and
diverse types of customers for imagery and geospatial
information resources within the Government. . .to harness,
leverage, and focus rapid technological developments to serve
the imagery, imagery intelligence, and geospatial information
customers.'' Section 1102(1) of the NIMA Act. Since then, there
have been rapid developments in airborne and commercial imagery
platforms, new imagery and geospatial phenomenology, full
motion video, and geospatial analysis tools.
Section 921 of the National Defense Authorization Act for
Fiscal Year 2004 (Pub. L. No. 108-136 (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 Department of Defense, it has been slow to
embrace other facets of ``geospatial intelligence,'' including
the processing, storage, and dissemination of full motion video
(``FMV'') and ground-based photography. Rather, the NGA's
geospatial product repositories--containing predominantly
overhead imagery and mapping products--continue to reflect its
heritage. While the NGA is belatedly beginning to incorporate
more airborne and commercial imagery, its data holdings and
products are nearly devoid of FMV and ground-based photography.
The Committee believes that FMV and ground-based
photography should be included, with available positional data,
in NGA data repositories for retrieval on Department of Defense
and Intelligence Community networks. Current mission planners
and military personnel are well-served with traditional imagery
products and maps, but FMV of the route to and from a facility
or photographs of what a facility would look like to a foot
soldier--rather than from an aircraft--would be of immense
value to military personnel and intelligence officers. Ground-
based photography is amply available from open sources, as well
as other government sources such as military units, United
States embassy personnel, defense attaches, special operations
forces, foreign allies, and clandestine officers. These
products should be better incorporated into NGA data holdings.
To address these concerns, Section 432 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 432 also makes clear that this new responsibility
does not include the authority to manage tasking of handheld or
clandestine photography taken by or on behalf of human
intelligence collection organizations. Although Section 432
does not give the NGA authority to set technical requirements
for collection of handheld or clandestine photography, the
Committee encourages the NGA to engage other elements of the
Intelligence Community on these technical requirements to
ensure that their output can be incorporated into the national
system for geospatial-intelligence within the security handling
guidelines consistent with the photography's classification as
determined by the appropriate authority.
Section 432 is identical to Section 435 of S. 1494. H.R.
2701 had no similar provision.
Section 433. Director of Compliance of the National Security Agency
Section 433 amends the National Security Agency Act of 1959
(50 U.S.C. 402 note) to establish a statutory Director of
Compliance, appointed by the Director of the NSA. The Director
of Compliance is responsible for the NSA's compliance programs
over mission activities and is therefore responsible for
ensuring that the components within NSA are adhering to rules
and restrictions governing surveillance activities.
The Committee understands the challenges involved in
ensuring that the NSA's mission activities, which involve
complicated and ever-changing technology, are conducted in a
manner consistent with laws, rules, and restrictions governing
surveillance. Having a Director of Compliance, who has
expertise in both the legal and technical arenas of
surveillance, will help minimize the risk of non-compliance.
Section 433 is based on Section 425 of H.R. 2701. S. 1494
did not have a comparable provision. Section 425 of H.R. 2701
would have created the position of Associate Director of the
National Security Agency for Compliance and Training and would
have given the Associate Director responsibility for ensuring
that all NSA programs and activities were conducted in a manner
consistent with all applicable laws, regulations and policies
and that the training of relevant personnel was sufficient. The
National Security Agency appointed its first Director of
Compliance in July 2009. This official reports to the Director
of the National Security Agency and is responsible for
developing and maintaining a program of compliance for all of
NSA's mission activities. Section 433 reflects the office and
responsibilities of the Director of Compliance as they have
been established administratively within the NSA. Codifying the
new position in statute underscores its importance and conveys
the Committee's belief that one individual should be
responsible for the mission compliance program of NSA.
Subtitle D--Other Elements
Section 441. Codification of additional elements of the intelligence
community
Section 441 restores, with respect to the United States
Coast Guard, the prior definition of ``intelligence community''
in the National Security Act of 1947 applicable to that
service. See 50 U.S.C. 401a. Section 1073 of the Intelligence
Reform and Terrorism Prevention Act of 2004 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 441 is identical to Section 441 of S. 1494
and similar to Sections 421 and 422 of H.R. 2701.
Section 442. Authorization of appropriations for Coast Guard National
Tactical Integration Office
Section 442 provides authorization of appropriations for
research and development (R&D) to the Coast Guard National
Technical Integration Office (NTIO), which is the Coast Guard
counterpart to the Tactical Exploitation of National
Capabilities programs in each of the military services. The
NTIO explores the use of national intelligence systems in
support of Coast Guard operations. Section 442 is intended to
enable the National Technical Integration Office to monitor the
development, procurement, and management of tactical
intelligence systems and equipment and to conduct related
research, development, and test and evaluation activities
within the context of the Coast Guard's existing R&D authority.
Section 442 is identical to Section 442 of S. 1494. H.R.
2701 had no comparable provision.
Section 443. Retention and relocation bonuses for the Federal Bureau of
Investigation
Section 443 makes permanent the authority of the Director
of the FBI to pay bonuses to retain certain employees, such as
those who have unusually high or unique qualifications or who
are likely to leave the Federal service, and to pay relocation
bonuses to employees who are transferred to areas in which
there is a shortage of critical skills.
Section 443 is identical to Section 443 of S. 1494. H.R.
2701 had no comparable provision.
Section 444. Extension of the authority of the Federal Bureau of
Investigation to waive mandatory retirement provisions
Existing law permits agencies to exempt law enforcement
officers from mandatory retirement (generally applicable at age
57 with 20 years of service) until age 60. Under 5 U.S.C.
8335(b)(2), pertaining to the Civil Service Retirement System,
and 5 U.S.C. 8425(b)(2), pertaining to the Federal Employee
Retirement System, the Director of the FBI may exempt FBI
officers from mandatory retirement until age 65, if such an
extension is in the public interest. Section 444 extends the
waiver authority, which expired at the end of 2009, until the
end of 2011.
Section 444 is identical to Section 444 of S. 1494. H.R.
2701 had no comparable provision.
Section 445. Report and assessments on transformation of the
intelligence capabilities of the Federal Bureau of
Investigation
Section 445 requires the Director of the FBI, in
consultation with the DNI, to submit to the congressional
intelligence committees, not later than 180 days after
enactment of this Act, a report describing the long-term vision
for the intelligence capabilities of the FBI's National
Security Branch, a strategic plan for the National Security
Branch, and the progress in advancing the capabilities of the
branch. Among other things, the report is to include a
description of the intelligence and national security
capabilities that will be fully functional within the 5-year
period beginning on the date the report is submitted and a
description of the metrics, timetables, and reforms. The report
must also describe the activities being carried out to ensure
the NSB is improving its performance and should address the
issues pertaining to mandatory reassignment of FBI supervisors
after serving in a position for seven years. In addition,
Section 445 requires the DNI, in consultation with the Director
of the FBI, to conduct for five years an annual assessment of
the NSB's progress based on those performance metrics and
timetables.
As described in the unclassified letter of the Director of
Management and Budget setting forth the Administration's views
on the Intelligence Authorization Act for Fiscal Year 2010, as
passed by the Senate and House of Representatives, this FBI
report was tied to a fence on funding in the classified annex.
The fence was removed at the request of the Executive branch,
in light of the timing of the enactment of this authorization
bill late in the fiscal year, but the Committee requires the
report to be completed within 180 days of enactment and will
revisit the issue of a fence if the report is not completed on
a timely basis. Section 445 is based on Section 445 of S. 1494
and Sections 339 and 349 of H.R. 2701.
TITLE V--REORGANIZATION OF THE DIPLOMATIC TELECOMMUNICATIONS SERVICE
PROGRAM OFFICE
Section 501. Reorganization of the Diplomatic Telecommunications
Service Program Office
Section 501 provides for the reorganization of the
Diplomatic Telecommunications Service (DTS) which is comprised
of the Diplomatic Telecommunications Service Program Office
(DTS-PO) and the DTS Network. The purpose of the DTS-PO is to
establish and maintain a DTS Network that is capable of meeting
the worldwide communications service needs of United States
Government departments and agencies operating from diplomatic
and consular facilities including their national security needs
for secure, reliable, and robust communications. Section 501
replaces a reorganization plan enacted in the Intelligence
Authorization Act for Fiscal Year 2001 and formally amends that
Act that will appear in Title 22 of the U.S. Code.
Section 501 establishes a Governance Board that shall
direct and oversee the activities of the DTS-PO. The Director
of OMB shall designate from the departments and agencies that
use the DTS Network those departments and agencies whose heads
will appoint members of the Governance Board from among their
personnel. The OMB Director shall designate the Chair of the
Board from among its five voting members and also designate
from among the users of the network the department or agency
that shall be the DTS-PO Executive Agent.
The Governance Board shall determine the written
arrangements, which may be classified, for managing the DTS-PO.
The Board shall have the power to approve and monitor the DTS-
PO's plans, services, policies, and pricing methodology, and to
provide to the DTS-PO Executive Agent the Board's
recommendation with respect to the approval, disapproval, or
modification of the DTS-PO's annual budget requests. The Board
will also approve or disapprove of the Executive Agent's
nomination of a Director of the DTS Program Office.
Section 501 authorizes two-year appropriations for the DTS-
PO. It requires that the DTS-PO shall charge users only for
bandwidth costs attributable to that department or agency and
for specific customer projects.
In requesting enactment of Section 501, the DNI advised the
Committee as follows about its purpose: ``The appropriations
authorized by this measure will promote modernization of the
[DTS] network and the expansion of its architecture. With the
authority to recover bandwidth costs, the DTS-PO can vastly
improve the overall business management and effectiveness of
DTS-PO operations. The measure will facilitate the
establishment of a financial management system that employs a
single system of records, that increases transparency and
traceability in customer billing, that promotes responsiveness
to customer requirements, that insures timely acquisition of
bandwidth and receipt of vendor payments, and that promotes
cost-conscious behavior among DTS-PO customers.''
Section 501 is substantially similar to Section 501 of S.
1494. H.R. 2701 did not include a comparable provision.
TITLE VI--FOREIGN INTELLIGENCE AND INFORMATION COMMISSION ACT
Title VI establishes a Foreign Intelligence and Information
Commission (Commission) to provide, in a year from the
appointment of its members, recommendations to improve foreign
intelligence and information collection, analysis, and
reporting through the strategic integration of the Intelligence
Community and other elements of the United States Government
with regard to the collection, reporting, and analysis of
foreign intelligence and information. Title VI is similar to
Title VI of S. 1494. H.R. 2701 had no comparable provision. In
addition to revisions of particular matters concerning the
Commission, the Committee agreed not to include the findings in
Section 602 of S. 1494.
Section 601. Short title
Section 601 provides that this title may be cited as the
``Foreign Intelligence and Information Commission Act.''
Section 602. Definitions
Section 602 provides definitions, including subsection
602(3) which defines ``information'' to include information of
relevance to the foreign policy of the United States collected
and conveyed through diplomatic reporting and other reporting
by personnel of the Government of the United States who are not
employed by an element of the Intelligence Community, to
include public and open-source information.
Section 603. Establishment and functions of the Commission
Section 603 establishes and sets forth the functions of the
Commission. The Commission shall evaluate any current processes
or systems for the strategic integration of the Intelligence
Community, including the DNI's Open Source Center, and other
elements of the United States Government, including the
Department of State, with regard to the collection, reporting,
and analysis of foreign intelligence information.
The Commission shall provide recommendations on a number of
matters. It shall recommend how to improve or develop such
processes or systems including by development of an interagency
strategy. It shall also provide recommendations on how to
incorporate into the inter-agency strategy the means to
anticipate future threats, challenges, and crises, including by
identifying collection, reporting and analytical capabilities
that are global in scope and are directed at emerging, long-
term, and strategic threats.
The Commission shall also provide recommendations related
to the establishment of any new Executive branch entity, or the
expansion of the authorities of any existing Executive branch
entity, as needed to improve the strategic integration of
foreign intelligence and information collection.
In addition, the Commission shall provide recommendations
on strategies for sustaining human and budgetary resources to
effect the global collection and reporting missions identified
in the inter-agency strategy.
Section 604. Members and staff of the Commission
Section 604 establishes that the Commission shall be
composed of 10 members, eight of whom shall be voting members.
The voting members shall be two members appointed by the
Majority Leader of the Senate, two members appointed by the
Minority Leader of the Senate, two members appointed by the
Speaker of the House of Representatives, and two members
appointed by the Minority Leader of the House of
Representatives. Of the two nonvoting members, one shall be
appointed by the Director of National Intelligence and the
other shall be appointed by the Secretary of State.
Members of the Commission shall be private citizens with
knowledge and experience in foreign information and
intelligence collection, reporting, and analysis; knowledge and
experience in issues related to the national security and
foreign policy of the United States gained by serving in the
Department of State, other appropriate agency or department or
independent organization with expertise in the field of
international affairs; or knowledge and experience with foreign
policy decision making. The congressional leaders, the DNI, and
the Secretary of State shall consult among themselves prior to
the appointment of members in order to achieve a fair and
equitable representation of points of view on the Commission.
The members of the Commission shall designate one of the
voting members to serve as chair. Five voting members of the
Commission shall constitute a quorum for the purpose of
transacting the business of the Commission.
Subsection 604(b) provides for the selection of an
Executive Director by an appointment of the chair with the
approval of a majority of the voting members of the Commission.
The chair is also authorized, in consultation with the
Executive Director, to appoint other Commission personnel. The
Committee agreed to set the salary limits for Commission staff
to those applicable to the maximum annual rate for employees of
a standing committee of the U.S. Senate.
Section 605. Powers and duties of the Commission
Section 605 provides the powers and duties of the
Commission, including holding hearings, taking testimony and
receiving evidence. The Commission may secure directly from a
department or agency of the United States information that the
Commission considers necessary to carry out the title. Upon
request of the Commission chair, the head of each department or
agency shall furnish such information to the Commission,
subject to applicable law. S. 1494 had provided subpoena
authority to the Commission, but the Committee agreed that the
Commission would not have the power to issue subpoenas.
Section 606. Report of the Commission
Section 606 provides that no later than 300 days
(approximately 10 months) after the appointment of members, the
Commission shall submit an interim report to the congressional
intelligence committees. No later than 60 days thereafter, the
Commission shall submit a final report to the President, the
Director of National Intelligence, the Secretary of State, the
congressional intelligence committees, the Committee on Foreign
Relations of the Senate, and the Committee on Foreign Affairs
of the House of Representatives.
Section 607. Termination
Section 607 provides that the Commission shall terminate 60
days after the submission of the Commission's final report.
Section 608. Nonapplicability of Federal Advisory Committee Act
Section 608 provides that the Federal Advisory Committee
Act (5 U.S.C. App.) does not apply to the Commission.
Section 609. Authorization of appropriations
Section 609 authorizes the appropriation of such sums as
may be necessary to carry out this title. The sums shall be
available until expended.
TITLE VII--OTHER MATTERS
Section 701. Extension of National Commission for the Review of the
Research and Development Programs of the United States
Intelligence Community
The National Commission for Review of Research and
Development Programs of the United States Intelligence
Community was authorized by Title X of the Intelligence
Authorization Act for Fiscal Year 2003, Pub. L. No. 107-306
(2002) and lapsed on September 1, 2004, when the time for the
final report of the Commission was reached without completion
of the appointment process for the Commission.
The Congress established the Commission after determining
that there was a need for a review of the full range of current
research and development programs within the responsibility of
the Intelligence Community with the goal of ensuring a unified
research and development program across the entire Community.
As this remains an important objective, Section 701 renews
authority for this Commission by extending the reporting
deadline to one year after the date that members are appointed
and requiring that new members be appointed to the Commission.
This section also authorizes the appropriation of funds for the
Commission, which shall remain available until expended.
Section 701 is based on Section 501 of H.R. 2701. S. 1494
had no similar provision.
Section 702. Classification review of executive branch materials in the
possession of the congressional intelligence committees
Section 702 authorizes the DNI to conduct classification
reviews of materials in the possession of the congressional
intelligence committees that are at least 25 years old and were
created, or provided to that committee, by the Executive
branch. The DNI may only exercise this authority at the request
of one of the congressional intelligence committees, in
accordance with procedures established by that committee.
Section 702 is based on Section 503 of H.R. 2701. S. 1494
had no comparable provision. Section 503 of H.R. 2701 had
stated that the DNI ``shall'' conduct classification reviews in
accordance with committee rules. In Section 702, the Committee
clarified that classification reviews would only be conducted
at the request of the congressional intelligence committees.
TITLE VIII--TECHNICAL AMENDMENTS
Section 801. Technical amendments to the Foreign Intelligence
Surveillance Act of 1978
Section 801 makes technical amendments to the Foreign
Intelligence Surveillance Act of 1978 to correct typographical
and grammatical errors. Section 801 is identical to Section 701
of S. 1494 and Section 514 of H.R. 2701.
Section 802. Technical amendments to the Central Intelligence Agency
Act of 1949
Section 802 amends the Central Intelligence Agency Act of
1949 by updating references to the National Security Act of
1947 to reflect amendments made by the Intelligence Reform and
Terrorism Prevention Act of 2004. Section 802 is identical to
Section 702 of S. 1494 and Section 511 of H.R. 2701.
Section 803. Technical amendments to title 10, United States Code
Section 803 corrects a number of technical errors in the
United States Code arising from the enactment of the
Intelligence Reform and Terrorism Prevention Act of 2004.
Section 803 is identical to Section 703 of S. 1494 and Section
519 of H.R. 2701.
Section 804. Technical amendments to the National Security Act of 1947
Section 804 makes a number of technical corrections to the
National Security Act of 1947 arising from enactment of the
Intelligence Reform and Terrorism Prevention Act of 2004.
Section 804 is identical to Section 704 of S. 1494 and Section
518 of H.R. 2701.
Section 805. Technical amendments to the multiyear National
Intelligence Program
Section 805 updates the ``multiyear national intelligence
program'' to incorporate organizational and nomenclature
changes made by the Intelligence Reform and Terrorism
Prevention Act of 2004. Section 805 is identical to Section 705
of S. 1494 and Section 517 of H.R. 2701.
Section 806. Technical amendments to the Intelligence Reform and
Terrorism Prevention Act of 2004
Section 806 makes a number of technical and conforming
amendments to the Intelligence Reform and Terrorism Prevention
Act of 2004. Section 806 is substantially similar to Section
706 of S. 1494 and Section 516 of H.R. 2701.
Section 807. Technical amendments to the Executive Schedule
Section 807 makes technical amendments to the Executive
Schedule to correct outdated and incorrect references to
``Director of Central Intelligence,'' ``Deputy Directors of
Central Intelligence,'' and ``General Counsel to the National
Intelligence Director.'' Section 807 is identical to Section
707 of S. 1494 and Section 513 of H.R. 2701.
Section 808. Technical amendments to section 105 of the Intelligence
Authorization Act for Fiscal Year 2004
Section 808 changes the reference to ``the Director of
Central Intelligence'' to ``the DNI'' in Section 105 of the
Intelligence Authorization Act for Fiscal Year 2004 (Pub. L.
No. 108-77 (December 13, 2003)) to clarify that the
establishment of the Office of Intelligence and Analysis within
the Department of the Treasury, and its reorganization within
the Office of Terrorism and Financial Intelligence (Section 222
of the Transportation, Treasury, Independent Agencies, and
General Government Appropriations Act, 2005 (Division H, Pub.
L. No. 108-447 (December 8, 2004))), do not affect the
authorities and responsibilities of the DNI with respect to the
Office of Intelligence and Analysis as an element of the
Intelligence Community. Section 808 is identical to Section 708
of S. 1494 and Section 515 of H.R. 2701.
Section 809. Technical amendments to section 602 of the Intelligence
Authorization Act for Fiscal Year 1995
Section 809 changes references to ``the Director of Central
Intelligence'' in Section 602 of the Intelligence Authorization
Act for Fiscal Year 1995 to ``the Director of National
Intelligence'' or to ``the Director of the Central Intelligence
Agency'' as appropriate. Section 809 is identical to Section
709 of S. 1494. H.R. 2701 did not have a comparable provision.
Section 810. Technical amendments to section 403 of the Intelligence
Authorization Act for fiscal year 1992
Section 810 makes technical amendments to Section 403 of
the Intelligence Authorization Act, Fiscal Year 1992, to
reflect the creation of the position of the Director of
National Intelligence and the appropriate definition of the
Intelligence Community. Section 810 is identical to Section 710
of S. 1494. H.R. 2701 did not have a comparable provision.
General Matters
Items not included
In addition to items not included in the bill as described
above, certain other sections from S. 1494 and H.R. 2701 were
not included because: these sections were unnecessary; the
requirements in the section had been or would be otherwise
fulfilled; the sections related to activities for which funds
would not be available; or for other reasons.
Section 335 of both S. 1494 and H.R. 2701 provided for
audits or investigations of the Intelligence Community by the
GAO. On March 15, 2010, in a letter providing the views of the
Administration on the House and Senate bills, the Director of
the Office of Management and Budget (OMB) noted that the
Administration continued to ``strongly object'' to the GAO
provisions, indicated that ``current law expressly exempts
intelligence and counterintelligence activities from GAO
review,'' and stated that the President's senior advisors would
recommend that he veto a bill that included the GAO provisions.
On March 18, 2010, the Acting Comptroller General sent a letter
to the intelligence committees indicating his disagreement with
the description of GAO's authorities contained in the OMB
Director's letter, and noting that existing statutes ``provide
GAO with the required authority to perform audits and
evaluations of [Intelligence Community] activities.''
In light of this, the Committee believes it is important to
explore further the scope of current GAO arrangements with the
Intelligence Community, the history of GAO's work on classified
matters outside of the Intelligence Community, existing GAO
procedures for working with classified information, and the
extent to which future GAO investigations and audits of the
Intelligence Community can be conducted by mutual agreement. In
this regard, the leadership of the Committee has in this
Congress and the last Congress asked the DNI and Comptroller
General whether they can identify selected oversight subjects
regarding which GAO has expertise and for which assistance
could be provided by agreement between the Intelligence
Community and GAO in a manner consistent with national
security.
The Committee continues to believe that GAO can make a
significant contribution to the oversight of the Intelligence
Community and that the intelligence committees should continue
to work with the DNI and the Comptroller General to find ways
to bring GAO's significant skills to bear.
The bill also eliminates a series of reporting requirements
from S. 1494 and H.R. 2701 with the expectation that the
information required by these reports would be obtained by the
congressional intelligence committees during the course of
normal oversight activities. The ODNI has offered to provide
the information requested in these reports in briefings or
hearings. In particular, the bill does not include from H.R.
2701: Section 331, report on financial intelligence on
terrorist assets; Section 333, semiannual reports on nuclear
weapons programs of Iran, Syria, and North Korea; Section 340,
report on intelligence resources dedicated to Iraq and
Afghanistan; Section 341, report on international traffic in
arms regulations; Section 342, report on nuclear trafficking;
Section 343, study on revoking pensions of persons who commit
unauthorized disclosures of classified information; Section
346, study on college tuition programs for employees of the
Intelligence Community; Section 359, report on dissemination of
counterterrorism information to local law enforcement agencies;
Section 360, report on intelligence capabilities of state and
local law enforcement agencies; Section 360A, Inspector General
report on over-classification; Section 360C, report on
activities of the Intelligence Community in Argentina; Section
360G, report on missile arsenal of Iran; Section 360H, studyon
best practices of foreign governments in combating violent domestic
extremism; Section 360I, report on information sharing practices of
Joint Terrorism Task Force; Section 360J, report on technology to
enable information sharing; Section 360K, report on threats to energy
security of the United States; and Section 506, review of intelligence
to determine if foreign connection to anthrax attacks exists. The
elimination of the report on global supply chain vulnerabilities
required by Section 347 of H.R. 2701 is discussed in more detail in the
classified annex.
Section 314 of S. 1494 required the DNI to review certain
educational grant and scholarship programs and report on
whether those programs could be combined or otherwise
integrated. The Committee encourages the DNI to consider this
issue in future budget and legislative submissions. For future
intelligence authorizations, the congressional intelligence
committees will be interested in determining whether the ODNI's
promise of methods of providing information other than through
reports has worked to satisfy the oversight interest underlying
the inclusion of these sections in the House and Senate bills.
The bill also does not include sections of H.R. 2701 and S.
1494 that have already been enacted into law. These sections
include: Section 345 of H.R. 2701 and Section 338 of S. 1494,
each of which required a report on retirement benefits for
former employees of Air America; Section 357 of H.R. 2701 which
reiterated an existing requirement to submit report on
terrorism financing; and Section 428 of H.R. 2701, which
required the submission of a charter for the National
Reconnaissance Office. The Committee expects compliance with
those existing reporting requirements. Similarly, because the
National Defense Authorization Act has temporarily suspended
pay authority under the Defense Civilian Intelligence Personnel
System pending the submission of findings and recommendations
by an independent organization, the bill does not include
Section 304 of H.R. 2701, which contained provisions relating
to the Defense Civilian Intelligence Personnel System.
Both Section 403 of H.R. 2701 and Section 405 of S. 1494
provided additional statutory duties for the DNI's Director of
Science and Technology. Internal reorganization within the ODNI
has obviated the need for this provision.
In addition, the following sections from H.R. 2701 are not
included: Section 369, sense of the Congress on monitoring of
northern border of the United States; Section 411, review of
covert action programs by the Inspector General of the Central
Intelligence Agency; Section 502, expansion and clarification
of the duties of the program manager for the information
sharing environment; and Section 505, sense of the Congress
honoring the contributions of the Central Intelligence Agency.
The Committee honors the contribution of the CIA and all other
elements and personnel of the Intelligence Community but
believes it is preferable that the intelligence authorization
act not be the vehicle for expressing the sense of the Congress
on various matters.
The following additional sections from S. 1494 are not
included: Section 353, limitation on reprogrammings and
transfers of funds; Section 403, authorities for interagency
funding; Section 413, applicability of the Privacy Act to the
Director of National Intelligence and the Office of the
Director of National Intelligence; Section 432, confirmation of
appointment of heads of certain components of the Intelligence
Community; and Section 434, DIA counterintelligence and
expenditures. Also not included was Section 364 of H.R. 2701,
exemption of dissemination of terrorist identity information
from the Freedom of Information Act. These are matters that may
be the subject of further study by the congressional
intelligence committees.
Compliance with Rule XXI, CL. 9 (House) and with Rule XLIV (Senate)
Clause 9 of rule XXI of the Rules of the House of
Representatives and rule XLIV of the Standing Rules of the
Senate require publication of a list of the ``congressionally
directed spending items'' (the term used in the Senate rule) or
``congressional earmarks'' (the term used in the House rules)
that are included in the conference report, the joint
explanatory statement, or the classified schedule of
authorizations accompanying the conference report. The list
must include the name of each Senator, House Member, Delegate,
or Resident Commissioner who submitted a request to the
committee of jurisdiction for each item so identified.
The House and Senate rules also require the listing of
limited tax or tariff benefits. The conference report, the
joint explanatory statement, and the classified schedule of
authorizations contain no limited tax benefits or limited
tariff benefits as defined in the applicable House and Senate
rules.
There were no congressionally directed spending items (as
defined in the Senate rule) or congressional earmarks (as
defined in the House rule) in either S. 1494 or H.R. 2701 on
the Intelligence Authorization Act for Fiscal Year 2010.
Consistent with the determination of the Committee not to
create any direct spending items or earmarks, none have been
newly created in this bill, the report to accompany it, or the
classified schedule of authorizations.
Congressionally directed spending items or earmarks for
intelligence or intelligence-related activities in Fiscal Year
2010 were contained in the previously enacted Department of
Defense Appropriations Act, 2010 (Pub. L. No. 111-118) or in
the Military Construction and Veterans Administration
Appropriations Act, 2010 (Pub. L. No. 111-117). In accordance
with the request of the Administration that the authorization
of these congressionally directed spending items or earmarks
should remain in effect after passage of this Act, this bill
does not remove the authorization for those congressionally
directed items or earmarks contained in the Defense
Appropriations Act, 2010. A definitive statement under the
Senate and House rules of the congressionally directed spending
items or earmarks contained in the Department of Defense
Appropriations Act, 2010 and the Military Construction and
Veterans Administration Appropriations Act may be found
respectively in the Committee Print of the Committee on
Appropriations, U.S. House of Representatives, on H.R. 3326/
Public Law 111-118, beginning on page 434, and in the
conference report to accompany H.R. 3288, Consolidated
Appropriations Act, 2010, H. Rept. 111-366, beginning on page
1362.
Committee Action
Vote to report the committee bill
On July 15, 2010, a quorum for reporting being present, the
Committee voted to report the bill, by a vote of 15 ayes and no
noes. The votes in person or by proxy were as follows: Chairman
Feinstein--aye; Senator Rockefeller--aye; Senator Wyden--aye;
Senator Bayh--aye; Senator Mikulski--aye; Senator Feingold--
aye; Senator Nelson--aye; Senator Whitehouse--aye; Vice
Chairman Bond--aye; Senator Hatch--aye; Senator Snowe--aye;
Senator Chambliss--aye; Senator Burr--aye; Senator Coburn--aye;
Senator Risch--aye.
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. The
Congressional Budget Office (CBO) prepared cost estimates for
H.R. 2701 and S. 1494. The June 25, 2009 cost estimate for H.R.
2701 and the August 6, 2009 cost estimate for S. 1494 are
posted on the CBO website. On July 15, 2010, the Committee
transmitted this bill to the CBO for any further review that is
warranted, beyond those posted estimates, regarding the costs
incurred in carrying out the bill's 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 SENATOR ROCKEFELLER
The Congressional notification provisions in the bill that
we are reporting out today constitute an important improvement
over the status quo. They require that the congressional
intelligence committees and the President establish written
procedures regarding the details of notification processes and
expectations; that the President provide written notice about
intelligence activities and covert actions, including changes
in covert action findings and the legal authority under which
an intelligence activity or a covert action is or will be
conducted; that the President provide written reasons for
limiting access to notifications to less than the full
committee; and that the President maintain records of all
notifications, including names of Members briefed and dates of
the briefings.
I support these provisions because I expect that they will
go a long way toward correcting past deficiencies. However, I
believe that additional clarity is needed regarding whether or
not the full committee will be aware of three critical facts in
circumstances of less-than-full-committee notifications: (1)
the fact that such a limited access notification has occurred,
(2) the general subject of the limited notification, and (3)
the reasons for limiting access.
There are situations in which a limited notification is
appropriate and even necessary, but those situations are rare.
Congressional notification procedures--and practices--should
reflect that rarity. Most importantly, they should prevent
limited notification from impeding the committees' oversight
responsibilities, because effective congressional oversight of
intelligence activities is critical to the national security
interests of the United States.
As Senator Snowe and I noted in our additional views to the
Committee's July 22, 2009 report of an earlier version of this
bill, the Committee has supported clarity on these matters in
four consecutive intelligence authorization bills. I will
continue to work with my colleagues in establishing written
notification procedures that resolve any ambiguities in favor
of full committee awareness.
The Congressional notification provisions in the bill that
we are reporting out today are a good first step--but only a
first step.
John D. Rockefeller, IV.
ADDITIONAL VIEWS OF SENATOR FEINGOLD
The version of the Fiscal Year 2010 Intelligence
Authorization bill reported out by the Senate Select Committee
on Intelligence on July 15, 2010, retains a critically
important provision--the establishment of an independent
commission to address structural impediments to global coverage
and our ability to anticipate terrorist and other threats and
crises before they appear. I am also pleased that the bill
includes a number of provisions that would improve
accountability and save taxpayer dollars. Unfortunately, the
bill removes many other important provisions that were in the
Senate-passed bill that were aimed at improving oversight and
transparency, as well as accountability.
The so-called ``Gang of Eight'' provision of the National
Security Act should be eliminated entirely so that all members
of the congressional intelligence committees can be notified of
all intelligence activities. The earlier version of the bill
required merely that all members receive basic information
about matters only briefed to the Chairman and Vice Chairman,
yet this compromise has been removed. The current version also
removes a provision ensuring access to the Intelligence
Community by the Government Accountability Office, as well as
provisions requiring that the heads of the NSA, NGA and NRO be
confirmed by the U.S. Senate. Furthermore, the bill waters down
an amendment I offered with Vice Chairman Bond and Senator
Wyden requiring the president to submit an unclassified top-
line budget request for the National Intelligence Program by
adding a presidential waiver. This amendment was intended to
make possible a recommendation of the 9/11 Commission to
improve congressional oversight by passing a separate
intelligence appropriations bill, a structural reform that
would be seriously complicated by the year-to-year uncertainty
of a presidential waiver.
Because of these and other modifications, the bill falls
short of what should be reported out by the Committee this
year, or in future years. However, while I will continue to
fight for the reforms included in the original version, I do
not wish to stand in the way of finally passing an intelligence
authorization bill that includes the establishment of the
independent commission as well as other important provisions.
Russell D. Feingold.