[Senate Report 108-359]
[From the U.S. Government Publishing Office]
108th Congress Report
SENATE
2d Session 108-359
_______________________________________________________________________
Calendar No. 712
NATIONAL INTELLIGENCE REFORM
ACT OF 2004
__________
R E P O R T
of the
COMMITTEE ON GOVERNMENTAL AFFAIRS
UNITED STATES SENATE
to accompany
S. 2840
together with
ADDITIONAL VIEWS
TO REFORM THE INTELLIGENCE COMMUNITY AND THE INTELLIGENCE AND
INTELLIGENCE-RELATED ACTIVITIES OF THE UNITED STATES GOVERNMENT, AND
FOR OTHER PURPOSES
September 27, 2004.--Ordered to be printed
COMMITTEE ON GOVERNMENTAL AFFAIRS
SUSAN M. COLLINS, Maine, Chairman
TED STEVENS, Alaska JOSEPH I. LIEBERMAN, Connecticut
GEORGE V. VOINOVICH, Ohio CARL LEVIN, Michigan
NORM COLEMAN, Minnesota DANIEL K. AKAKA, Hawaii
ARLEN SPECTER, Pennsylvania RICHARD J. DURBIN, Illinois
ROBERT F. BENNETT, Utah THOMAS R. CARPER, Delaware
PETER G. FITZGERALD, Illinois MARK DAYTON, Minnesota
JOHN E. SUNUNU, New Hampshire FRANK LAUTENBERG, New Jersey
RICHARD C. SHELBY, Alabama MARK PRYOR, Arkansas
Michael D. Bopp, Staff Director and Chief Counsel
Ann C. Fisher, Deputy Staff Director
David A. Kass, Chief Investigative Counsel
Michael L. Stern, Deputy Staff Director for Investigations
Johanna L. Hardy, Senior Counsel
Alec D. Rogers, Senior Counsel
James R. McKay, Senior Counsel
Jane A. Alonso, Professional Staff Member
Jennifer A. Hemingway, Professional Staff Member
Bruce P. Kyle, Professional Staff Member
Jennifer E. Gagnon, Executive Assistant
Deborah G. Barger, Intelligence Community Detailee
Don L. Bumgardner, U.S. General Accounting Office Detailee
Keith E. Herrington, U.S. Department of Defense Detailee
William D. Murray, U.S. Department of State Detailee
Edward W. Priestap, Federal Bureau of Investigation Detailee
Joyce A. Rechtschaffen, Minority Staff Director and Counsel
Laurie Rubenstein, Minority Chief Counsel
Lawrence B. Novey, Minority Counsel
Kevin J. Landy, Minority Counsel
Beth M. Grossman, Minority Counsel
Michael Alexander, Minority Professional Staff Member
David Barton, Minority Professional Staff Member
Andrew Weinschenk, U.S. Department of State Fellow
Rajesh De, Special Bi-Partisan Staff
Christine Healey, Special Bi-Partisan Staff
Gordon Nathaniel Lederman, Special Bi-Partisan Staff
Amy B. Newhouse, Chief Clerk
C O N T E N T S
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Page
I. Purpose and Summary..............................................1
II. Background.......................................................4
III. Legislative History.............................................46
IV. Committee Hearings..............................................50
V. Section-by-Section Analysis.....................................52
VI. Estimated Cost of Legislation...................................79
VII. Evaluation of Regulatory Impact.................................84
VIII.Additional Views................................................85
IX. Changes in Existing Law.........................................96
Calendar No. 712
108th Congress Report
SENATE
2d Session 108-359
======================================================================
NATIONAL INTELLIGENCE REFORM
ACT OF 2004
_______
September 27, 2004.--Ordered to be printed
_______
Mrs. Collins, from the Committee on Governmental Affairs, submitted the
following
R E P O R T
together with
ADDITIONAL VIEWS
[To accompany S. 2840]
The Committee on Governmental Affairs, having considered
the original bill (S. 2840) to reform the intelligence
community and the intelligence and intelligence-related
activities of the United States Government, and for other
purposes, reports favorably thereon and recommends that the
bill do pass.
I. Purpose and Summary
On September 22, 2004, the Senate Governmental Affairs
Committee (the ``Committee'') unanimously approved the Collins-
Lieberman National Intelligence Reform Act of 2004, S. 2840.
The purpose of this legislation is to transform the U.S.
intelligence community's Cold War-era organizational structure
into an integrated enterprise capable of marshaling the full
range of intelligence capabilities against terrorism and other
21st Century threats to U.S. national security. This
legislation represents the most sweeping reform of the
intelligence community in more than fifty years.
The immediate genesis for this legislation is the report of
the National Commission on Terrorist Attacks Upon the United
States (the ``9/11 Commission''), an independent, bipartisan
body which spent eighteen months investigating the causes of
the September 11, 2001 terrorist attacks and assessing
recommendations for preventing future attacks. The 9/11
Commission itself built upon the work of several prior
commissions as well as the December 2002 report of the Joint
Inquiry of the Senate Select Committee on Intelligence and the
House Permanent Select Committee on Intelligence into
Intelligence Community Activities Before and After the
Terrorist Attacks of September 11, 2001 (the ``Congressional
Joint Inquiry'').
On July 22, 2004, the 9/11 Commission issued a 567-page
report containing over forty recommendations for improving the
United States's ability to prevent future terrorist attacks.
Its recommendations were divided into two parts: (1) policy-
oriented recommendations, and (2) recommendations for
structural change to enable the U.S. Government to implement
these new policies.
In its report, the 9/11 Commission issued a stinging
indictment of the intelligence community's organizational
structure, concluding that ``the intelligence community's
confederated structure left open the question of who really was
in charge of the U.S. intelligence effort'' against al
Qaeda.\1\ In testimony before this Committee, 9/11 Commission
Chairman Thomas Kean and Vice Chairman Lee Hamilton stated that
the two most important Commission recommendations dealt
squarely with intelligence reform: (1) creation of a National
Intelligence Director (NID), separate from the intelligence
agencies, with sufficient authorities to manage the
intelligence community, and (2) formation of a National
Counterterrorism Center (NCTC) to unify intelligence against
terrorism and to draft Executive Branch-wide interagency plans
for countering terrorism.\2\
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\1\ National Commission on Terrorist Attacks Upon the United
States, The 9/11 Commission Report (W.W. Norton & Co., 2004)
(hereinafter ``Commission report''), p. 93.
\2\ Making America Safer: Examining the Recommendations of the 9/11
Commission, hearing before the Senate Committee on Governmental
Affairs, 108th Congress (July 30, 2004) (testimony of Thomas Kean,
Chair of the 9/11 Commission, and Lee Hamilton, Vice Chairman of the 9/
11 Commission).
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Immediately following the release of the 9/11 Commission's
report, Senate Leaders assigned the Committee the task of
examining the recommendations of the 9/11 Commission with
respect to reorganization of the executive branch and, in
particular, the proposals to create a NID and an NCTC.
The Committee responded immediately and in a bipartisan
manner, holding hearings and numerous meetings with experts
during the August recess. In the two months following the
release of the
9/11 Commission report, the Committee conducted an intensive
and in-depth review of the intelligence community's structure
and performance and the 9/11 Commission's findings and
recommendations related thereto. The Committee held eight
hearings in this time period, taking testimony from, among many
others, the Commission's Chair and Vice Chairman, Secretary of
State Colin Powell, Secretary of Homeland Security Tom Ridge,
Federal Bureau of Investigation Director Robert Mueller, Acting
Director of Central Intelligence John McLaughlin, and family
members of victims of the
9/11 terror attacks. The Committee also received input from and
conducted consultations with numerous others, including other
members of the Senate, the Administration, the 9/11 Commission
staff, and current and former intelligence, defense, andlaw
enforcement officials. In addition, the Committee reviewed and
benefited from many hearings on this subject conducted by other
committees of the Senate and House during this time.
The resulting legislation adopts and implements the two
most important recommendations of the 9/11 Commission: First,
it creates a NID who will manage the intelligence community and
serve as the President's chief intelligence adviser. The NID
will have the strong budget, personnel, standard-setting, and
other authorities needed to manage the intelligence community
and to create a flexible and agile network to respond to global
terrorism and emerging threats. Second, it forms the NCTC to
unify intelligence against terrorism and to draft interagency
plans for countering terrorism.
By adopting these key measures, the bill addresses the
central organizational problem identified by the 9/11
Commission and many others. The objective of the Collins-
Lieberman legislation is to put someone in charge of U.S.
intelligence by creating a unified structure in which one
person, the NID, is in charge of and accountable for the
nation's intelligence operations. The creation of the NCTC,
operating under the NID's supervision and authority, will
likewise ensure that there is one place where terrorism-related
information comes together, and that Executive Branch-wide
interagency plans are developed to fight terrorism.
Collins-Lieberman contains a number of other important
measures which also implement recommendations of the 9/11
Commission. These include provisions (1) to establish an
information-sharing network designed to facilitate and promote
the sharing of information throughout the federal government,
with state and local authorities, and where appropriate, the
private sector, and (2) to create a Civil Liberties Board to
ensure that privacy and civil liberties are protected as the
President and executive agencies propose and implement policies
to fight terrorism.
Although the Committee gave considerable weight to the
unanimous, bipartisan recommendations of the 9/11 Commission,
it did not accept these recommendations without scrutiny or
careful consideration. In fact, as discussed herein, there were
a number of instances where the Committee chose to modify or
enhance particular recommendations made by the 9/11 Commission.
Further refinements and improvements to the legislation
were made during the markup of the bill on September 21 and 22,
2004. Several amendments, for example, made enhancements to the
legislation's provisions designed to ensure that intelligence
is collected, analyzed and reported in an objective, impartial
and apolitical manner.
The Committee's unanimous approval of the resulting
legislation reflects a strong, bipartisan consensus that
transformational intelligence reform is urgently needed. Simply
put, the Committee concluded that the United States's current
intelligence structure will not produce the level of
performance needed to protect national security in the 21st
Century. Structural reform is necessary to unlock the potential
in the U.S. intelligence apparatus to counter 21st Century
threats. This reform will enable the knitting together of
intelligence agencies into an agile and flexible network to
fight terrorist networks.
As the 9/11 Commission put it:
We know that the quality of the people is more
important than the quality of the wiring diagrams. Some
of the saddest aspects of the 9/11 story are the
outstanding efforts of so many individual officials
straining, often without success, against the
boundaries of the possible. Good people can overcome
bad structures. They should not have to.\3\
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\3\ Commission report, p. 399.
Of course, no amount of structural reform can ensure
perfect performance by the intelligence community or guarantee
the safety of Americans against terrorist attacks. But Congress
needs to act quickly to create the structural framework
necessary for maximizing the intelligence community's
performance.
II. Background
I. PRIOR REFORM EFFORTS
Recommendations for fundamental intelligence reform--and
specifically, to create the equivalent of a strong National
Intelligence Director--date back decades. Aside from numerous
books and private-sector reports,\4\ examples include:
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\4\ Examples of private recommendations include former DCI Admiral
Stansfield Turner's 1985 book, Secrecy and Democracy: The CIA in
Transition, advocating creating a Director of National Intelligence
separate from the CIA director.
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In 1955, a commission chaired by former President
Hoover recommended that management of the CIA be turned over to
an ``executive officer,'' so that the DCI could focus attention
on managing the intelligence community.
In 1971, then Deputy OMB Director James
Schlesinger submitted a report to the President on the
intelligence community criticizing the failure to coordinate
intelligence resources due to lack of a strong central
intelligence community leadership.
In 1995-96, the Aspin-Brown Commission and the
House Intelligence Committee undertook separate reviews of the
intelligence community in the post-Cold War environment. Both
recommended strengthening the DCI's ability to manage and
coordinate the activities of the intelligence community as a
whole, including by separating the DCI from running the CIA and
providing the DCI with new authorities over budgets and
personnel. These recommendations led to some limited
reforms.\5\
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\5\ These recommendations resulted in the Intelligence
Authorization Act of 1997, which created four Senate-confirmed
positions to enhance intelligence capabilities and coordination. The
Act also gave the Director of Central Intelligence the right of
concurrence in the Secretary of Defense's recommendations for the
directors of the National Security Agency and other intelligence
agencies in the Defense Department. But as the Commission noted,
``[T]he authority of these positions is limited, and the vision of
central management clearly has not been realized.'' Commission report,
p. 357.
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More recently, the Joint Inquiry by the intelligence
committees of the House and Senate and the Senate Select
Committee on Intelligence conducted thorough investigations and
recommended fundamental reform. And finally, the Commission
spent eighteen months investigating intelligence lapses related
to 9/11, among other topics. The Commission's unanimous
approval of its report, and its prioritization of intelligence
reform for immediate action, testify to both the wisdom and
urgency of transformational intelligence reform.
In short, the Collins-Lieberman National Intelligence
Reform Act represents the culmination of years of the most
thorough and extensive review of the intelligence community in
history. Some of the bill's most important measures draw upon
intelligence reform proposals and recommendation that long pre-
date 9/11. For example, the concept of creating the equivalent
of a strong National Intelligence Director dates back decades
and reflects a longstanding concern that the intelligence
community lacks sufficient cohesion and management.
II. THE GOLDWATER-NICHOLS ACT OF 1986
The notion of a ``Goldwater-Nichols for the Intelligence
Community'' has been a recurring metaphor for intelligence
reform since even before 9/11. Indeed, in 1992, Senator Boren
and Representative McCurdy, then the respective chairmen of the
Senate and House intelligence committees, proposed bills to
restructure the intelligence community modeled on the
Goldwater-Nichols reorganization of the Defense Department in
1986. The legislation would have created the equivalent of a
NID, separate from the CIA director, with authority to program
and reprogram funds throughout the intelligence community and
to direct their expenditure, to task intelligence agencies and
to transfer personnel temporarily from one agency to another.
To understand this parallel, it is helpful to present some
background material on Goldwater-Nichols.
The Goldwater-Nichols Department of Defense Reorganization
Act of 1986 moved the Department of Defense (DoD) from a 1950s-
era industrial, stovepiped model to a ``matrix management''
model of integrating its vast array of capabilities to
accomplish missions. The Act is a model for restructuring
intelligence not because intelligence agencies should become a
Department of Intelligence, equivalent to DoD. Rather,
Goldwater-Nichols is highly relevant to the intelligence reform
context because of the principles that underlay Goldwater-
Nichols: thatgood people cannot overcome bad structure on a
consistent basis, and that the aim of structural reform is to clarify
responsibility, authority, and accountability and to provide personnel
with the right incentives to develop the mindsets and organizational
culture for integrated operations.
The objective of Goldwater-Nichols was two-fold: (1) to
improve the quality of military advice given to the President,
and (2) to achieve greater integration among the Military
Services. Goldwater-Nichols was intended to transform DoD from
a weak structure dominated by the Military Services to an
effective corporate entity.
A. The Origins of the Military Services
Warfare in the 19th Century and into the 20th Century was
cleanly divided between land and sea. As a result, the Army and
the Navy developed as separate Services with their own
traditions and processes. Cooperation between them was minimal.
But warfare changed in the middle of the 20th Century. The
advent of the airplane added a third medium of warfare. And
warfare became a global endeavor--with millions of Americans
under arms, mobilization of America's industrial might to field
enormous amounts of equipment, and the need for grand strategy
against what at that time was considered a fast and agile
enemy. President Roosevelt created the Joint Chiefs of Staff,
modeled on the British system and composed of the heads of the
Army and Navy in order to coordinate among them. But military
operations in World War II evinced a lack of interservice
coordination or ``jointness.'' For example, the Army and the
Navy had separate commanders in the Pacific theater, leading to
confusion and inefficiency.
B. Problems Leading To Passage of Goldwater-Nichols
After World War II, Congress passed the National Security
Act of 1947 to establish the National Security Council (NSC),
the Air Force as a separate Military Service, and what
eventually became the Central Intelligence Agency and DoD.
Congress's objective in passing the Act was to create a
national security establishment capable of fighting the Cold
War and to avoid another Pearl Harbor-like surprise attack. The
original defense department--called the Department of National
Defense by the National Security Act of 1947--was headed by a
Secretary with very weak authorities over the Military
Services. Only two years later, Congress passed legislation to
strengthen the Secretary of Defense's authorities over the
Military Services and renamed the entity the Department of
Defense. Both Congress and the Executive Branch took action
over the ensuring forty years to strengthen the Secretary of
Defense's authorities over the Military Services.
One early attempt to integrate was the DoD's creation of
the Commanders-in Chief (CINCs) to command units from the
Military Services in wartime. DoD carved the world into
commands, which were both geographic (such as the European
Command) and functional (the Transportation Command). These
commands were designed to prevent a recurrence of divided
command as in the World War II Pacific theater. The CINCs were
supposed to command all Military Service units assigned to
accomplish a particular mission--such as warfighting in Europe
or transportation. Thus a military unit such as the 82nd
Airborne Division would have two chains of command: (1)
administrative control, under which the 82nd Airborne was
manned, equipped, and trained by the Army; and (2) operational
control, under which the 82nd Airborne was deployed and
conducted operations only at a CINC's direction.
Despite various attempts to achieve integration, by the
early 1980s DoD was still dominated by the Military Services in
two ways.
First, military advice to the President and the Secretary
of Defense was provided by the Joint Chiefs of Staff, a
committee composed of the heads of the Military Services (the
Chief of Staff of the Army, the Chief of Staff of the Air
Force, the Chief of Naval Operations, and the Commandant of the
Marine Corps). The Joint Chiefs of Staff had a Chairman, but he
was very weak; instead, the Joint Chiefs of Staff as a
committee was responsible for rendering military advice.
The Joint Chiefs of Staff had a staff--the Joint Staff--to
assist it, but that staff was not manned by the Military
Services' best and brightest officers. Indeed, duty outside of
one's Military Service was the kiss-of-death for an officer's
career. The Military Services often sent lesser-quality
officers to the Joint Staff and also interfered to prevent the
Joint Staff from producing recommendations that were contrary
to the Military Services' interests.
The result of the Joint Chiefs of Staff operating as a
committee and being served by a weak staff was that the Joint
Chiefs' military advice generally represented a lowest-common-
denominator approach among the Military Services. Over time,
Secretaries of Defense became unsatisfied with the quality of
military advice from the Joint Chiefs.
In addition to the lack of quality military advice, the
Military Services were unable to conduct integrated, ``joint''
military operations successfully. The CINCs had weak authority,
and--like the Joint Chiefs of Staff's Joint Staff--the CINCs'
staffs did not attract the best-and-brightest from the Military
Services. Moreover, officers in each Military Service had
little understanding of the other Services and would approach
issues not from the perspective of the corporate Department of
Defense but rather from the perspective of their individual
Service. Each Service's culture was insular and biased against
integration. There were no incentives for officers to think
``jointly'' and every incentive for officers to prioritize
their Service's needs.
The net result was that the Military Services dominated
operations and impeded joint operations. Examples of disjointed
combat operations abounded: (1) the uncoordinated, four-part
air war in Vietnam, in which the country was divided into four
quadrants and each Military Service conducted air operations in
its quadrant; (2) the botched Iranian hostage rescue operation,
in which each Military Service wanted to have a ``piece of the
action''--leading to Air Force pilots flying Navy helicopters
loaded with Army troops; and (3) the haphazard Grenada
invasion, in which Army troops could not communicate with Navy
vessels to coordinate fire support from off-shore.
C. Passage of the Goldwater-Nichols Act
Critics of defense reorganization argued that DoD's problem
was not organization and that DoD just needed better people--
that good people could overcome bad structure. Yet Congress
ultimately decided that organizational structure mattered and
that, while good people could overcome a bad structure
temporarily, they could not do so consistently--nor should they
have to.
The Goldwater-Nichols Act elevated the Chairman of the
Joint Chiefs to be the principal military adviser to the
President and the Secretary of Defense. While the Joint Chiefs
as a committee was preserved, the Act dictated that the
Chairman--not the Joint Chiefs as a committee--was responsible
for giving military advice to the President and the Secretary.
To strengthen the CINCs, Goldwater-Nichols did not mandate
the particular substantive focus of the CINCs--for example,
that there be a CINC for Europe or for South America.
Goldwater-Nichols left that decision to the Executive Branch,
to create and adjust the CINC's substantive foci as U.S.
security dictated. But Goldwater-Nichols specified in great
detail that the CINCs had authoritative direction over the
Military Services for warfighting purposes and that the
Services could not carry out operations on their own. Thus
accountability was clarified: the CINCs were responsible for
overall strategy and operations to achieve missions.
Critics argued that strengthening of the CINCs would weaken
the Military Services. But that criticism assumed that the
Military Services were the key operating units of DoD. Instead,
warfare in the late 20th Century required integration of land,
sea, and air forces, which the Services could not accomplish on
their own. As noted above, the Military Services were
responsible for administrative control--recruiting, training,
and equipping forces--while the CINCs were responsible for
using those forces in combat. As several military operational
fiascos demonstrated, the balance between the Services and the
CINCs was tipped toward the Services. Goldwater-Nichols sought
to right that balance by increasing the authority of the CINCs.
In addition to elevating the Chairman and strengthening the
CINCs, Goldwater-Nichols sought to change the military's
Service-specific culture and mentality over the long term. Of
course, legislation could not just order officers to ``think
joint''--or, as the military would say, to ``think purple.''
Instead, the Act sought to create incentives to motivate the
best-and-brightest officers to serve on the Joint Staff and
CINCs' staffs and thus develop experience outside of their
Service. To create such incentives, the Act ventured into the
details of the military's personnel management system. The Act
required officers to serve on joint duty--that is, on the Joint
Staff or a CINC's staff--in order to be promoted to general or
admiral. In addition, the Act created a quota system to ensure
that officers who served on joint duty were promoted at the
same or better rate as officers who served in assignments
simply within their respective Services. Finally, the Act
created a ``joint specialty'' by which officers could choose to
focus their career on serving in joint assignments.
D. Goldwater-Nichols's Effect on the Department of Defense
Parts of the Goldwater-Nichols Act affected DoD almost
immediately--namely the elevation in the Chairman's status. The
other changes instituted by Goldwater-Nichols took longer to
come to fruition. The CINCs--renamed the Combatant Commanders
by Secretary of Defense Rumsfeld--have grown significantly in
power within DoD. Military operations have become more
``joint'' in nature. Most important, DoD's culture is widely
regarded as having changed from Service-specific to joint. The
Goldwater-Nichols personnel changes were the driving force of
this change. The effects of the personnel requirements were not
felt for over a decade, as a new generation of officers
developed and was forced to serve in joint assignments. But the
officer corps today is viewed as having a far more joint
orientation than previous generations. The Joint Staff and
CINCs' staffs are attracting the best and the brightest due to
the promotion requirement. In sum, Goldwater-Nichols is widely
regarded as having successfully effected a fundamental shift of
power within DoD from the Military Services to the CINCs in
order to ensure the integration of the Military Services to
accomplish missions.
III. THE STRUCTURE OF U.S. INTELLIGENCE
The need for greater integration among intelligence
agencies parallels the problem that Goldwater-Nichols sought to
resolve in the DoD context: how to achieve greater integration
among capabilities to accomplish missions, and how to change
organizational culture toward a ``joint'' rather than
capability-specific perspective. As the Commission recorded:
Recalling the Goldwater-Nichols legislation of 1986,
Secretary Rumsfeld reminded us that to achieve better
joint capability, each of the armed services had to
``give up some of their turf and authorities and
prerogatives.'' Today, he said, the executive branch is
``stove-piped much like the four services were nearly
20 years ago.'' He wondered whether it might be
appropriate to ask agencies to ``give up some of their
existing turf and authority in exchange for a stronger,
faster, more efficient government wide joint effort.''
Privately, other key officials made the same point to
us.\6\
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\6\ Commission report, p. 403, endnotes omitted.
Understanding the nature of the problem, and how the
National Intelligence Reform Act proposes to solve it, first
requires an overview of the intelligence community. As the
Commission noted, ``Over the decades, the agencies and rules
surrounding the intelligence community have accumulated to a
depth that practically defies public comprehension.'' \7\
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\7\ Commission report, p. 410.
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Intelligence is created in a two-part process. First,
intelligence is collected from one or more of several sources:
human intelligence (spies); signals intelligence (intercepted
communications); imagery intelligence (photographs from the
heavens); open source intelligence (publicly available
literature); and the measurement of scientific data such as
telemetry. Somebasic analysis is needed to process the
collected material into meaningful information. Second, the collected
information, from all sources, is analyzed by ``all-source analysts''
in order to produce a comprehensive picture.
The Executive Branch is generally composed of basic
building blocks of departments and agencies. From that
perspective, U.S. intelligence is a strange hybrid, neither
fish nor fowl. The National Security Act of 1947 as amended
creates the concept of the ``Intelligence Community,'' composed
of two actors who are independent and many pieces of other
departments. The Intelligence Community thus is akin to a
``virtual community,'' lacking a physical structure but
composed of members from various departments.
The members of the Intelligence Community are:
(1) The Office of the Director of Central
Intelligence includes senior intelligence community
officers (as opposed to CIA officers), including the
Deputy DCI for Community Management and the Assistant
DCIs for Collection, Analysis & Production, and
Administration. This office also includes the National
Intelligence Council and the Community Management Staff
(which assist the DCI in his capacity as head of the
intelligence community). The Office of the DCI is
statutorily distinct from the CIA. The Terrorist Threat
Integration Center (TTIC) is also an independent
entity, separate from the CIA. These entities are also
independent of any other department;
(2) The CIA, an independent agency which collects
human intelligence and conducts all-source intelligence
analysis;
(3) The National Security Agency (NSA), a DoD agency
which collects signals intelligence;
(4) The National Geospatial-Intelligence Agency
(NGA), a DoD agency which collects imagery
intelligence;
(5) The National Reconnaissance Office (NRO), a DoD
agency which builds satellites to support NSA and NGA;
(6) The Defense Intelligence Agency (DIA), a DoD
agency which serves DoD's departmental needs but also
participates actively in serving other customers and in
the national estimate process;
(7) The intelligence components of the Federal Bureau
of Investigation (FBI);
(8) The Bureau of Intelligence and Research in the
State Department, which serves State's needs for
analysis but also participates in the national estimate
process;
(9) Elements of the Department of Homeland Security
concerned with the analyses of foreign intelligence
information;
(10) Intelligence components of the Department of
Energy;
(11) The Office of Intelligence and Analysis in the
Treasury Department; and
(12) The intelligence components of the Military
Services.
The National Security Act gives the Director of Central
Intelligence (DCI) three jobs. The DCI is the head of the
Intelligence Community. The DCI also is the principal
intelligence adviser to the President and the head of the CIA.
It is helpful to think of the intelligence apparatus as two
concentric circles. The larger circle is the Intelligence
Community, which is composed of the offices and organizations
enumerated above. The second, smaller circle within the larger
circle is the National Foreign Intelligence Program (NFIP),
which is the budget program formulated by the DCI for
submission to the President and Congress. DoD has its own
intelligence budget programs: the Joint Military Intelligence
Program (JMIP), which includes intelligence assets that serve
DoD-wide customers; and the Tactical Intelligence and Related
Activities program (TIARA), which refers to the Military
Services' intelligence capabilities that are ``in the
trenches'' and serving warfighters on a tactical basis.
According to the National Security Act, the NFIP is a
collection of intelligence programs which are designated by
agreement between the DCI and the affected department. Thus the
DCI and DoD negotiate about which pieces of NSA, NGA, NRO, and
DIA are to be paid for by the NFIP and which by JMIP and/or
TIARA. In essence, the NFIP contains the CIA and the Office of
the DCI and parts of NSA, NGA, NRO, DIA, FBI, and other
departments.
IV. THE NEED FOR INTEGRATION TO COUNTER 21ST CENTURY THREATS
The Intelligence Community was founded and structured to
fight the Cold War. The enemy in the Cold War was a lumbering
and bureaucratic behemoth, fielding a massive military backed
by an equally massive industrial complex. The main challenge
for intelligence was to penetrate the Iron Curtain to learn
what was happening on the other side. Intelligence collection
therefore was all about learning the enemy's secrets; open
sources were less important because the Communist bloc did not
publish much useful information openly. The Intelligence
Community responded to the challenge of collecting on the other
side of the Iron Curtain by building large collection agencies.
By comparison to 21st Century challenges, each of human,
signals, and imagery intelligence collection could be done with
relative autonomy. The CIA, NSA, and imagery capabilities
shared information only via formal, finished reports. Each
collection capability acquired vast amounts of ``raw data,'' of
which only a percentage survived the process of sanding and
smoothing the raw data into finished reports. The
counterintelligence threat was real, so agencies adopted
rigorous security policies to slow information-sharing by
keeping it within rigid regimes. And there was little need for
integration with the FBI aside from on counterintelligence,
because the main threat to the United States was a military
force poised overseas.
But the nature of the threat changed in the 1990s. Al Qaeda
is not a lumbering, bureaucratic enemy fielding conventional
armies. Instead, it operates globally--in mosques,universities,
and back alleys--while being headquartered in failed states like
Afghanistan. It uses modern technology to communicate and travel
globally in service of centuries-old extremist ideology. It can travel
into the American homeland and strike with daring, imagination, and
surprise. And much more about it--and about the Islamic extremist
movement generally--is available via open sources.
Given that the Intelligence Community was a 20th Century
creature chasing a 21st Century enemy, it was not surprising
that the Intelligence Community could not keep up before 9/11--
as is chronicled in the Commission's report. Gathering
intelligence on terrorist cells in the slums of Karachi and
monitoring their connections to Kansas requires far more
intimate sharing of information among agencies. Collection on
terrorists is like a jigsaw puzzle without the box cover--
information must be shared at the raw data level because no
agency possesses all the pieces of the puzzle nor knows what
the picture on the box top looks like. The world's transition
to ``Internet speed'' makes sharing via formal reports an
impediment to speedy action. And the Intelligence Community
downplayed open sources by focusing only on ``secrets.''
Indeed, as early as 1986, the Intelligence Community began
to recognize that transnational terrorism was a challenge to
the Intelligence Community's very structure. Following the
terrorist attacks on the Rome and Athens airports in 1986, the
CIA formed the Counterterrorist Center to overcome CIA's
internal divide between its human intelligence collectors and
its analysts and the geographic divisions in which its human
intelligence collectors operated impeded the CIA's actions
against terrorism. The human intelligence collectors at the
Counterterrorist Center recognized that trying to recruit
terrorists required significant analytic support--more than
recruiting diplomats at the proverbial embassy cocktails
parties. Thus the analysts at the center became an integral
part of human collection activities--albeit at the expense of
doing strategic analysis.\8\
---------------------------------------------------------------------------
\8\ Joint Inquiry Into Intelligence Community Activities Before and
After the Terrorist Attacks of September 11, 2001, Report of the U.S.
Select Committee on Intelligence and U.S. House Permanent Select
Committee on Intelligence, Together with Additional Views, S. Rep. No.
107-351, H. Rep. No. 107-792, 107th Congress, 2d Session (December
2002) (hereinafter ``Joint Inquiry report''), pp. 60-61, 96, 551.
---------------------------------------------------------------------------
The Counterterrorist Center's mission was eventually
broadened to integrating collection and analysis activities on
terrorism across the entire Intelligence Community. But as the
Congressional Joint Inquiry records, the Counterterrorist
Center never fulfilled this vision. The center did not become
the Intelligence Community's leader on counterterrorism. The
center was physically housed at CIA and essentially became a
CIA organism. It never emerged as a body independent from any
agency with authoritative direction over all intelligence
agencies for the counterterrorism mission. Relations among the
CIA, NSA, and FBI left much to be desired and were anything but
seamless, against a foe for which integration of U.S.
intelligence capabilities was critical.\9\
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\9\ Joint Inquiry report, p. 339; Commission report, pp. 353-358.
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In the most classic example of the system's inability to
function against transnational terrorism, the Counterterrorist
Center lost track of future 9/11 hijackers Hazmi and Mihdhar as
they traveled across Asia and did not inform the FBI that these
hijackers had U.S. visas until it was too late for the FBI to
catch them domestically. Ultimately there was no
accountability--the Counterterrorist Center, NSA, and the FBI
could all blame each other, and no one had the responsibility
and authority to make all intelligence capabilities work
together to accomplish the counterterrorism mission. The only
place where the counterterrorism activities of CIA, NSA, and
other intelligence agencies came together was at the level of
the DCI. There was no one lower--the equivalent of a DoD
combatant commander--responsible for fulfilling the
counterterrorism mission by developing strategy and unifying
the intelligence community's array of capabilities.
But the Counterterrorist Center failure to fulfill the
vision for it was a microcosm of the larger structural problems
afflicting the intelligence community. As the Commission notes,
different personnel, security, and technology standards
prevented the Intelligence Community from operating as a
network to share information, particularly at the raw data
level. Security rules inhibited information-sharing; agencies
had rules that inhibited sharing, and there were no sanctions
for not sharing. Development of technology to facilitate
information-sharing was stunted, as agencies prioritized their
own needs over the Intelligence Community's corporate needs.
After 9/11, the Administration created the TTIC to
integrate analysis on the terrorist threat. TTIC exists outside
of any intelligence agency. TTIC represents a step forward in
terms of integrating information for analytic purposes.
However, as the Commission found, TTIC falls short of true
intelligence community integration because TTIC has no
authority to order collection. Thus TTIC has limited ability to
task collectors to fill in gaps in understanding regarding
terrorism.\10\ TTIC does not have its own career cadre and has
had difficulty in attracting analysts to come to TTIC from the
Counterterrorist Center and other parts of the Intelligence
Community. Finally, as the Commission found, there is no
effective counterterrorism planning function being done across
the Executive Branch.
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\10\ Commission report, pp. 401-402.
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V. THE DCI'S LACK OF ADEQUATE AUTHORITIES TO TRANSFORM THE INTELLIGENCE
COMMUNITY
The intelligence community must become an agile and
flexible network to fight terrorist networks. But the DCI
currently lacks authority to transform the intelligence
community into a network and knit together the disparate
intelligence agencies. And the DCI is too burdened by having to
direct the CIA simultaneously, not allowing the DCI to focus on
community management.
A. Current DCI Authorities
The DCI has plenary authority over the CIA. In fact, the
DCI has extraordinary authority in this role as compared to the
heads of other departments and agencies. For example, the DCI
can authorize CIA to perform procurement without abiding by
standard Executive Branch procurement laws and regulations, and
the DCI can terminate any CIA employee at-will. In contrast to
the DCI's clear authority over the CIA, the question of whether
the DCI already has adequate authority over the Intelligence
Community has been the subject of dispute.
The basic dilemma regarding the DCI's authorities is the
extent of DCI control over Intelligence Community entities
contained in other departments, particularly those in DoD, both
on paper and in reality. On paper, many of the DCI's
authorities under the National Security Act seem quite robust,
including:
Collection tasking. The DCI establishes
requirements and priorities to govern the Intelligence
Community's collection of intelligence for ``national''
purposes.
Analysis and production. The Assistant DCI for
Analysis and Production is given the authority to ``oversee''
and ``establish standards and priorities'' for the analysis and
production of intelligence.
Providing services of common concern. The DCI
performs services of common concern that the DCI determines are
more efficiently accomplished centrally, including to
consolidate personnel, administrative, and security programs
across the Intelligence Community.
Coordinating intelligence liaison. The DCI
coordinates the relationships of Intelligence Community
entities with foreign intelligence or security services.
Access to intelligence across the Executive
Branch. To the extent recommended by the NSC and approved by
the President, the DCI has access to all intelligence related
to national security which is collected by an Executive Branch
component.
But the above-referenced authorities do not give the DCI
actual levers to control the actions of Intelligence Community
entities aside from the CIA. The DCI's main levers for
enforcing his will on intelligence agencies are as follows:
Budget authority. The DCI develops the budget for
the National Foreign Intelligence Program and presents it to
the President for submission to Congress. In developing the
budget, the DCI provides guidance to intelligence agencies in
formulating the parts of their budgets that are included in the
NFIP. Thus the DCI could theoretically refuse to put an
agency's budget into the NFIP unless that agency abided by the
DCI's wishes.
Transferring funds. Subject to the approval of the
Office of Management and Budget, the DCI may only transfer
funds appropriated to one account within the NFIP to another
account within the NFIP if the secretary of the affected
department does not object. The DCI cannot transfer any funds
from the FBI. The DCI could theoretically attempt to attain the
affected secretary's approval for such a transfer. However,
currently it takes the DCI, on average, three to five months to
transfer appropriations; this simply does not provide the DCI
with the agility to respond to rapidly changing circumstances.
Transferring personnel. The DCI may transfer
personnel within the Intelligence Community only if the
secretary of the affected department does not object. The DCI
cannot move personnel from the FBI. As regarding the transfer
of funding, the DCI could theoretically attempt to attain the
affected secretary's approval for such a transfer, but in
practice the process is cumbersome and not compatible with the
Intelligence Community becoming an agile network.
Hiring senior intelligence managers. The Secretary
of Defense is required to seek the DCI's concurrence before
recommending to the President an individual for appointment to
head NSA, NGA, and NRO. However, the Secretary of Defense may
forward the recommendation to the President without the DCI's
concurrence, although the Secretary must inform the President
of the DCI's nonconcurrence. The DCI is merely consulted by the
relevant department head in the selection of the Assistant
Secretary of State for Intelligence and Research, the head of
DIA, and the head of the Energy Department's intelligence
office. The DCI is merely given timely notice by the FBI
Director of the selection of an individual to head the FBI's
intelligence component.
The question, then, is whether the NID needs additional
authorities beyond the DCI's current authorities in order to
manage the Intelligence Community effectively.
B. DCI Tenet's 1998 Declaration of War
The best example of the institutional weakness of the DCI
is DCI Tenet's ill-fated declaration of war against al Qaeda.
In December 1998, DCI George Tenet issued a memorandum
declaring that the Intelligence Community was at war with al
Qaeda and that no resources should be spared in the effort. But
nothing happened as a result. The NSA director told the
Congressional Joint Inquiry that he did not think that the
memorandum applied to NSA. In contrast, individuals at CIA
thought that the memorandum applied to the rest of
theIntelligence Community and not them. There was little focus across
the Intelligence Community on developing capabilities over the long
term against the terrorist threat.\11\
---------------------------------------------------------------------------
\11\ Commission report, p. 358.
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Some argue that DCI Tenet did not attempt to implement his
declaration of war memorandum, such as by developing a
Community-wide counterterrorism strategy that focused on
breaking down barriers to information-sharing and building
long-term capabilities. Indeed, DCI Tenet apparently did not
contact the NSA director after issuing the declaration of war
memorandum to assess NSA's counterterrorism performance--which
would have clarified to the NSA director that the memorandum
was indeed intended for NSA.
Ultimately, however, the Commission's decision based upon
its analysis is that, regardless of whether DCI Tenet could
have taken some steps to implement his declaration of war, the
position of DCI is so institutionally weak that DCI Tenet
lacked the necessary levers to ensure compliance. The
Commission argues that the DCI is an institutionally weak
position because the DCI lacks two key authorities that any
business person would consider necessary to run a business: the
purse strings, and the ability to hire and fire key
subordinates. And by virtue of being an institutionally weak
position, DCIs have historically not exploited and in effect
have waived their other authorities.
C. The DCI and the Intelligence Appropriation
According to the Commission, the DCI's current authority to
develop the NFIP budget does not constitute real control over
NFIP funding. Instead, the DCI is institutionally weak because
the DCI does not receive the intelligence appropriation from
Congress. Most of the intelligence appropriation is contained
within the Defense Appropriations Bill. By doing so, the top-
line intelligence appropriation remains secret. As a result,
the Secretary of Defense receives the appropriation for NSA,
NGA, NRO, DIA, CIA, and the Community Management Account (which
includes the Office of the DCI, and some funding for the
National Intelligence Council, the Community Management Staff,
and the TTIC). The Secretary of Defense mechanically transfers
the appropriations for the Community Management Account and the
CIA to the DCI but administers the NSA, NGA, NRO, and DIA
appropriations himself. The appropriation for the FBI's
intelligence component is given to the Attorney General, not
the DCI, in a separate appropriations bill.
The receipt of an appropriation is important for three
reasons:
(1) It is emblematic in the Executive Branch of which
officials are truly powerful and which are merely advisory. As
former President and CEO of Lockheed Martin, Norman Augustine,
wrote regarding power in the federal government, ``As in
business, cash is king.'' Because the DCI does not receive the
intelligence appropriation, the DCI has diminished stature.
(2) Receipt of the appropriation brings with it the power
of apportionment. The recipient of the appropriation can use
the process of apportioning the appropriation to various sub-
entities as a means of control. Currently, DoD has that power
over NSA and other Defense intelligence entities.
(3) Receipt of an appropriation brings with it certain
fiduciary duties, namely to track the obligation and
expenditure of the funding by sub-entities. If the DCI were
able to ``execute'' the budget, then the DCI would not only
have a window into how intelligence agencies are spending their
money but also would know what funds have been obligated yet
not expended--and thus are available for reprogramming to meet
emergency needs. Currently, the DCI has little insight into how
intelligence agencies aside from CIA are spending their funds.
An official could theoretically receive execution authority
without receiving the relevant appropriation, but Executive
Branch officials have told us that such a situation creates a
mess and essentially is not good government.
As the Commission records, before 9/11 the CIA and the Air
Force squabbled regarding the deployment of the Predator
unmanned aerial vehicle because neither wanted to be stuck with
the $3 million bill should the Predator be lost. The image of
the DCI apparently being unable to find $3 million in the NFIP
to fund a Predator to be used against Osama bin Ladin is a
sobering indictment of the current state of the DCI's financial
management of the intelligence community.\12\
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\12\ Commission report, p. 211.
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D. Integration Requires Centralized Authority
The justification for giving the National Intelligence
Director strong authorities derives directly from what the NID
is supposed to accomplish in practice. The Intelligence
Community has failed to transform itself into a network in
which information and personnel can move seamlessly across the
Community. Instead, security prohibitions, personnel
regulations, and information technology disjunctions prevent
the Intelligence Community from becoming a decentralized
network. And the reason that security, personnel, and
information technology policies obstruct intelligence
transformation is that the DCI lacks the authority over the
component agencies to break stovepipes and enforce common
protocols. The objective of giving the NID greater authority is
not to centralize operations at the level of the NID but rather
to have the NID set and enforce the common personnel, security,
and information technology standards and protocols to transform
the Intelligence Community into a network to facilitate
decentralized operations.
VI. CREATING A NATIONAL INTELLIGENCE DIRECTOR TO INTEGRATE INTELLIGENCE
CAPABILITIES
Intelligence transformation is needed to enable the
intelligence community to counter 21st Century national
security threats--epitomized by transnational and suicidal
terrorists who targetthe American homeland--that require a
quantum leap in U.S. intelligence agencies' ability to integrate their
efforts and share information. That transformation can only occur if
the new National Intelligence Director receives strengthened authority
to bridge agency stovepipes and knit intelligence agencies into a
network. With this aim in mind, the legislation provides the National
Intelligence Director with a robust and carefully crafted series of
authorities.
A. The National Intelligence Program
Pursuant to the Commission's recommendation, the bill
renames the NFIP as the National Intelligence Program (NIP).
The new name expresses the need for intelligence collection and
analysis to cross the foreign/domestic divide given the nature
of the transnational terrorist threat. It also preserves the
concept that only ``national intelligence''--pertaining to the
interests of more than one government agency or department--is
included in the NIP. The bill defines national intelligence as
intelligence that serves more than one department.
The bill significantly changes the definition of the
National Foreign Intelligence Program. The NIP is defined to
include all programs, projects, and activities (whether or not
pertaining to national intelligence) of the National
Intelligence Authority, the Central Intelligence Agency, the
National Security Agency, the National Geospatial-Intelligence
Agency, the National Reconnaissance Office, the Office of
Intelligence of the Federal Bureau of Investigation, and the
Office of Information Analysis of the Department of Homeland
Security. The NIP also includes all national intelligence
programs, projects and activities of the elements of the
intelligence community and any other program, project, or
activity of a department, agency or element of the United
States Government relating to national intelligence unless the
NID and the head of the affected entity determine otherwise.
These provisions ensure that the NID will have complete
budgetary control over the core elements of the intelligence
community which produce national intelligence.
The NIP definition specifically excludes programs, projects
and activities of the military departments that acquire
intelligence principally for the planning and conduct of joint
or tactical military operations by the United States Armed
Forces. Any assets that are currently in the JMIP but are
national and do not acquire intelligence principally for the
planning and conduct of joint or tactical military operations
by the United States Armed Forces should be moved to the NIP.
The inclusion of the word ``principally'' is meant to reflect
that some military assets serve both national and tactical or
joint purposes; the mere fact that a DoD asset produces some
national intelligence thus does not require that asset to be
moved to the NIP.
Any programs, projects, or activities in DIA that are not
part of the NFIP as of the date of the legislation's enactment
would not be part of the NIP. This provision is meant to ensure
that certain DIA assets are not moved to the NIP. It should be
noted that the Commission's report calls for DIA to be included
in the NIP, but the Committee disagreed with this
recommendation. Still, it is expected that national collection
done by DIA will be moved to the NIP.
The State Department's Bureau of Intelligence and Research
and similar offices in the Departments of Energy and Treasury
would likely not be part of the NIP because of their largely
departmental rather than national focus. These entities focus
on analysis, not collection activities; on the other hand, the
NID would ensure that these entities' analytic expertise is
solicited when the Intelligence Community is producing national
intelligence estimates or analysis on important national
security topics.
B. The NID's Responsibilities
The NID is responsible for serving as the head of the
intelligence community, as the principal adviser to the
President for intelligence related to the national security, as
the head of the National Intelligence Authority, and for
directing and overseeing the National Intelligence Program.
The NID is also responsible for providing national
intelligence to the President, the heads of executive branch
departments and agencies, the Chairman of the Joint Chiefs of
Staff and other senior military commanders, the Senate, House
of Representatives, and their committees, and to other people
and entities as directed by the President. The national
intelligence provided by the NID is to be timely, objective,
independent of political considerations, and based upon all
sources available to the intelligence community.
The NID is given a number of specific responsibilities.
Many of these responsibilities are new, and are intended to
address shortcomings the Committee perceived in the existing
responsibilities of the Director of Central Intelligence.
The NID is clearly given the responsibility to determine
the annual budget for intelligence and intelligence-related
activities of the United States, and for managing and
overseeing the National Intelligence Program. The NID is also
given greater responsibility to oversee the collection,
analysis and dissemination of intelligence. The NID is required
to establish the requirements and priorities to govern the
collection, analysis, and dissemination of national
intelligence, and to establish collection and analysis
requirements for the intelligence community, and for
determining collection and analysis priorities, issuing and
managing collection and analysis tasking, and resolving
conflicts in tasking of elements of the National Intelligence
Program.
As is the DCI under current law, the NID is also
responsible for establishing requirements and priorities for
foreign intelligence collected under the Foreign Intelligence
Surveillance Act, and for assisting the Attorney General in
ensuring that intelligence derived from surveillance and
searches under FISA is appropriately disseminated.
Finally, the NID is responsible for providing advisory
tasking on the collection of intelligence to elements of the
U.S. government having information collection capabilities, but
which are not members of the intelligence community. This
responsibility is critical becauseinformation relevant to
terrorism can be found throughout the government--hypothetically, from
surveillance data at government buildings, to border and customs
officers' observations, to immigration statistics.
The NID is responsible for managing and overseeing the
National Counterterrorism Center and other national
intelligence centers which may be established in the future.
The NCTC is critical to fulfilling the 9/11 Commission's vision
of unity of effort in the intelligence community and across the
Executive Branch against terrorism, while the national
intelligence centers are meant to unify intelligence activities
against NSC priorities. The NID is responsible for ensuring
that the NCTC and the national intelligence centers fulfill
their intended purposes.
The NID is also charged with developing personnel policies
and programs to make a number of improvements in the management
of the intelligence community. These responsibilities include
setting standards for education, training, and career
development across the intelligence community, and ensuring
that the personnel of the intelligence community are
sufficiently diverse for the purposes of collection and
analysis of intelligence. The NID is also responsible for
facilitating assignments to the NCTC and other national
intelligence centers that may be established in the future, and
for making service in more than one element of the intelligence
community a condition of promotion to certain positions within
the intelligence community. Such policies will help promote the
concept of ``jointness'' in intelligence collection, analysis,
and operations. Generally speaking, the NID is responsible for
creating an intelligence workforce and intelligence
capabilities necessary to meet 21st Century threats. As with
Goldwater-Nichols, this is a long-term process. It is the NID's
responsibility to ensure that it happens.
The NID is given responsibilities for facilitating the
dissemination of intelligence, while still protecting
classified information. A key responsibility within this
general area is developing an integrated, interoperable
communications network between intelligence community elements.
This responsibility is critically important in fulfilling the
9/11 Commission's mandate to bring national security
institutions into the information age.
The Committee is aware that there is a considerable
potential for duplication of effort as a number of agencies
make efforts to address common problems without the benefit of
a strong NID to coordinate their activities. Likewise, certain
problems can remain if no agency addresses them. Therefore, it
is possible that the NID might discover duplication of effort
or gaps in the intelligence community that the NID should
address through budget, personnel, and other authorities.
The legislation strengthens the Intelligence Community's
ability to exploit open sources by requiring the NID to
establish and maintain within the intelligence community an
effective open-source information capability.
Finally, the bill makes clear that the NID must ensure that
the elements of the intelligence community are complying with
the Constitution and all applicable laws and executive orders,
including those relating to privacy and civil liberties of U.S.
persons. Effective intelligence activities cannot come at the
expense of civil liberties.
C. The NID's Authorities
The legislation sets forth a wide range of authorities for
the NID to fulfill his responsibilities. The Committee believes
that these authorities are commensurate with the NID's
responsibilities. Accordingly, the NID is accountable for the
performance of the responsibilities assigned to him. This
alignment of responsibility, authority, and accountability is
necessary in order to remedy the current arrangement in which
the DCI's authorities fall far short of his responsibilities as
head of the intelligence community. The enumeration of the
NID's authorities is meant to resolve the problem identified by
the Commission, that no one is in charge of the intelligence
community.
1. Authority To Formulate the Budget
The NID will be responsible for developing, with advice
from the heads of elements of the NIP, the budget for the NIP.
The NID will formulate the content, amount, and distribution of
the budget for the NIP and present that budget to the President
for consideration. Upon submission of the President's budget
request to Congress, the NID and the Deputy NID will testify to
Congress to defend the budget and will make such officials of
their staff available to Congress for briefings and to provide
other information as appropriate. The NID is expected to
utilize this budget preparation authority in order to effect
changes, if needed, in component agencies' programs and
activities. The NID should not merely mechanically compile the
agencies' budgets but should ensure that the budgets achieve
integration, prevent unnecessary duplication among agencies,
and maximize the effectiveness of all of our intelligence
capabilities.
2. Authority To Receive the National Intelligence Program's
Appropriation
The Committee's legislation provides that funds for the NIP
will be appropriated to the National Intelligence Authority and
will be under the direct jurisdiction and control of the NID.
The NID would allocate the appropriated amounts, after
apportionment by the Office of Management and Budget, directly
to the heads of Intelligence Community components, consistent
with his budget request as modified by the classified annexes
that would accompany appropriations and authorizations. The
authority to allot NIP appropriations will provide the NID with
the ability to control and closely monitor the obligation and
expenditure of NIP funds. For example, the NID will have
insight into what funds have been obligated and not expended,
making those funds available in the short-term for application
to different priorities.
3. Authority To Transfer Intelligence Funds
The legislation provides the NID with flexibility to
reallocate funding after Congress provides annual
appropriations for the NIP. After approval by the Office of
Management and Budget, and notification of the appropriate
congressional committees, the NID may transfer appropriations
and personnel among components of the NIP. The NID may also
approve reprogramming of appropriations within NIP components.
These authorities will help the NID respond to changing events
by shifting resources to higher priority activities, while
providing for appropriate notification of Congress.
4. Authority Regarding the Appointment and Termination of
Senior Intelligence Officials
The Commission stresses the importance of the NID having
what the Commission calls ``the ability to hire or fire senior
managers.'' The Commission states that the NID should ``approve
and submit nominations to the President'' of the heads of the
CIA, DIA, FBI Office of Intelligence, NSA, NGA, NRO, the
Department of Homeland Security's Directorate for Information
Analysis and Infrastructure Protection (``IA&IP''), and ``other
national intelligence agencies'' unspecified by the
Commission.\13\
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\13\ Commission report, p. 410.
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The Committee recognizes the importance of this authority.
Using this authority, the NID will be able to set expectations
and performance metrics for senior intelligence managers as a
condition for his recommendation of them for appointment or
nomination. However, the Committee's legislation takes a
slightly different approach than the Commission.
The NID is responsible for recommending to the President
nominees to be the Directors of the NSA, NGA, and NRO. The NID
is required to seek the concurrence of the Secretary of Defense
in these recommendations. If the Secretary of Defense does not
concur, that fact must be made known to the President. The NID
is responsible for recommending a nominee for CIA Director to
the President.
The bill also requires that the relevant department heads
seek the concurrence of the NID prior to recommending nominees
for the positions of Under Secretary of Defense for
Intelligence, Assistant Secretary of Homeland Security for
Information Analysis, Director of the DIA, and Executive
Assistant Director for Intelligence of the FBI. If the NID does
not concur in these recommendations, it must be made known to
the President.
The NID is also given the right to recommend to the
President that the individuals serving in any of the positions
described in the preceding two paragraphs be terminated. The
NID must seek the concurrence of the relevant agency head prior
to making such a recommendation but may make it without the
concurrence, provided the President is notified of that fact.
5. Acquisition and Fiscal Authorities
The legislation establishes for the NID enhanced
acquisition authority similar to that of the DCI, as head of
the CIA. It also requires the NID to establish a major system
acquisition management framework similar to that utilized by
DoD for defense acquisition programs, and provides that
ultimately the NID will assume milestone decision authority for
major systems acquisitions funded by the National Intelligence
Program (NIP).
a. The NID's Inherent Acquisition Authority.--As a general
matter, the U.S. government has inherent contracting authority
to enter into agreements necessary to procure goods and
services necessary to its functions. Statutes governing the
conduct of procurements by executive agencies establish the
framework for this authority. More explicitly, the creation of
the NIA as an independent establishment within the executive
branch places it squarely within applicability of the Federal
Property and Administrative Services Act of 1949 (FPASA, 41
U.S.C. Sec. Sec. 251 et seq.). This Act establishes competition
requirements as well as other procurement procedures and
requirements. These include the requirements of the Competition
in Contracting Act of 1984 and the Truth in Negotiations Act,
both of which amended FPASA. 41 U.S.C. Sec. 252 provides that
executive agencies shall make purchases and enter into
contracts in accordance with the provisions of FPASA. The NIA,
as an independent establishment, is included within the
definition of executive agency. Further, the Office of Federal
Procurement Policy Act (41 U.S.C. Sec. Sec. 401 et seq.)
establishes requirements for the implementation of government
wide procurement policy (such as the Federal Acquisition
Regulation) over executive agencies, which include the CIA and,
by application of law, the new NIA.
Like the CIA, though, it is anticipated that contingencies
will arise where provisions of current Federal acquisition law
could hinder the NID's ability to accomplish the mission of the
National Intelligence Authority (NIA). Therefore, the NID is
provided expanded authorities not given to most other agencies
as described below.
b. Special Acquisition Authority Similar to CIA.--The
section provides the NID with special acquisition authority
similar to the CIA in two specific ways. First, it provides the
NID with authority identical to some of the authority in what
is known as the CIA's ``Section Eight'' authority. Next, it
provides him with what is known as ``impairment authority.''
The NID has the same flexibility already provided the CIA
(sec. 8(a) of the CIA Act of 1949, as amended, 50 U.S.C.
Sec. 403j(a)) for the purposes for which funds may be expended.
Specifically, the CIA has flexibility to expend funds for
purposes that may be prohibited or limited for other agencies,
such as personal services. Thus, similar to the CIA, the NID
would be authorized to expend sums under contracts the NIA
awards for these purposes.
Next, the CIA is among a small number of entities in the
Federal government for which the application of FPASA
requirements may be made inapplicable under 40 U.S.C.
Sec. 113(e) when strict adherence would impair its ability to
fulfill its mission. Several fundamental federal procurement
laws, such as the Competition in Contracting Act and the Truth
in Negotiations Act are amendments to FPASA. With the
impairment authority, these requirements may be considered
inapplicable if circumstances warrant. In extending this
authority to the NIA, the Committee expects the NIA, as with
the CIA, to conduct procurement activities to the maximum
extent practicable in accordance with general Federal
Government procurement statutes and the Federal Acquisition
Regulation.
c. Milestone Acquisition Authority.--The legislation
confers on the NID certain acquisition authorities over NIP-
funded acquisitions of major systems. These authorities are
modeled on those now exercised by DoD. Specifically, a
combination of Federal law and DoD policy gives DoD the power
to exercise what is known as ``milestone authority'' over the
acquisition programs of all DoD agencies. This means that for
large procurements (e.g., those in excess of $140 million for
R&D purposes or $660 million for actual procurement) high-level
DoD officials independent of the program office developing a
system approve the entry into the next phase of the acquisition
cycle (such as from system development and demonstration to
production), as well as for production and deployment of the
system. These officials have access to independent assessments
of program progress such as cost estimates, testing results,
etc.
The legislation requires the NID to establish a management
structure for acquisitions of major systems funded by the NIP.
A program management plan will be established with cost,
schedule, and performance goals as well as progress reviews and
reports to Congress on the development of these programs. The
section would also require that the NID serve as the exclusive
milestone decision authority for all programs funded by the
NIP, including those of other agencies such as DoD, in order to
ensure strategic focus, interoperability, and any necessary
uniformity in development. DoD would retain milestone authority
over NSA, NRO, and NGA until such time that the NID was fully
prepared to assume it. The NID could also assign milestone
authority to the Secretary of Defense in particular instances,
pursuant to a memorandum of understanding.
The section would also require the NID to prescribe
guidance on program management plans based on the principles of
knowledge-based system development established in Defense
Department acquisition system guidance and espoused in the
system development ``best practices'' reports of the U.S.
Government Accountability Office.
d. Acquisition Powers Report.--The bill requires the NID to
report in a year as to whether any acquisition authority
enhancements are needed by NSA and NGA.
e. GAO Review.--Finally, not later than 2 years after the
date of enactment of this Act, the Comptroller General shall
report to the Congress on the extent to which the policies and
processes adopted for managing major national intelligence
acquisitions, as defined by the Director, are likely to result
in successful cost, schedule, and performance outcomes.
6. Tasking Authority
The NID is given tasking authorities comparable to--but
stronger than--those that the DCI or Assistant DCIs currently
have. The legislation gives the NID tasking authority not just
for collection but also for analysis. Intelligence analysis
must be directed to focus on national security priorities.
Also, as the Commission specifically noted, ``The limited pool
of critical experts--for example, skilled counterterrorism
analysts and linguists--is being depleted. * * * The U.S.
government cannot afford so much duplication of effort. There
are not enough experienced experts to go around.'' \14\ Under
the bill, the NID will be empowered to rationalize all assets--
including analysts. The Committee is concerned about issues of
analytic quality and objectivity and addressed these concerns
in other sections of the legislation (see section XI below).
---------------------------------------------------------------------------
\14\ Commission report p. 401.
---------------------------------------------------------------------------
7. Reorganization Authorities
Improving intelligence capabilities may require altering or
consolidating organizational units in order to overcome agency
stovepipes, remedy unnecessary duplication, and promote
economies of scale. To this end, the NID is authorized, with
the approval of the President and after consultation with the
department, agency, or element concerned, to allocate or
reallocate functions among the officers of the NIP, and to
establish, consolidate, alter, or discontinue organizational
units within the NIP. Prior to such action, the NID shall
provide notice to Congress, which shall include an explanation
of the rationale for the action. The authority under this
section does not extend to any action inconsistent with law,
and an action may be taken under this authority only with the
approval of each of the congressional intelligence committees,
the Senate Committee on Governmental Affairs, and the House
Committee on Governmental Reform.
VII. CHANGING ORGANIZATIONAL STRUCTURES
A. The NID
The NID is to be Presidentially-appointed and Senate-
confirmed. The position of NID is at the Executive Level I pay
grade, equivalent to that of a department head. The bill does
not make the NID a member of the cabinet. Members of the
cabinet generally are heads of executivedepartments who are
executing policy. The NID plays a different role, which is to support
policymaking with objective intelligence.
The NID serves at the pleasure of the President. The
Committee--like the Commission--rejected giving the NID a fixed
term. The NID is the President's principal intelligence adviser
and needs to have the confidence of the President. Testimony
before the Committee made clear that instituting a fixed term
for the NID would interfere with if not preclude that
relationship. Moreover, having the President's confidence is a
critical element for the NID to be effective in translating his
authorities into compliance by the intelligence agencies--
particularly when the new structure is in its infancy.
The bill expressly prohibits the office of the NID from
being placed in the Executive Office of the President. The
Commission had advocated doing so, apparently to facilitate the
development of a strong relationship between the NID and the
President. However, the location of the NID in the Executive
Office of the President is irrelevant to the establishment of
such a relationship. The Committee is concerned that locating
the NID in the Executive Office of the President might lead to
the politicization of intelligence. Testimony before the
Committee supported the Committee's views on this issue.
Moreover, it appears that the Commission has conceded this
point.\15\
---------------------------------------------------------------------------
\15\ Intelligence Reform, hearing before the Senate Select
Committee on Intelligence, 108th Congress (September 7, 2004)
(testimony of 9/11 Commission Vice Chairman Lee Hamilton and
Commissioner John Lehman).
---------------------------------------------------------------------------
B. The NID's Deputies
The Committee solicited testimony and advice from a wide
variety of experts both within and without the intelligence
community regarding how the NID's deputy structure should be
established in statute. These experts provided the Committee
with a variety of interesting, though not necessarily
consistent, approaches. However, one common thread the
Committee identified was that the NID should be given the
flexibility to establish a deputy structure consistent with the
NID's vision for the National Intelligence Authority. The
Committee adopted a legislative approach that provides such
flexibility.
The legislation creates a Principal Deputy NID, to serve in
the NID's absence. This official will be Senate-confirmed.
Having such an official is critical to the effectiveness of the
NID. Indeed, one of the Goldwater-Nichols Act's provisions
designed to strengthen the chairman of the Joint Chiefs was to
create the position of the Vice Chairman, to serve in the
Chairman's absence and to ensure continuity.
The legislation permits the NID to create up to four
deputies who are not Senate-confirmed and to determine their
duties and authorities. Thus the NID will have the flexibility
to structure top-level management as the NID sees fit.
The Commission recommended creating three Deputy NIDs with
line authority over key agencies/components under the NID's
authority: (1) a Deputy NID for Foreign Intelligence, to head
the CIA; (2) a Deputy NID for Defense Intelligence, to oversee
NSA, NGA, and NRO; and (3) a Deputy NID for Homeland
Intelligence, to address the Department of Homeland Security's
IA&IP Directorate and the FBI Office of Intelligence. The
Commission would have made the Undersecretary of Defense for
Intelligence (USDI) the Deputy NID for Defense Intelligence.
Testimony before this Committee was unanimous that dual-
hatting the USDI would not work in practice. The USDI would
have two masters, inside and outside the Department of Defense.
Moreover, the USDI currently is a DoD policy official and lacks
line authority over NSA, NGA, and NRO in DoD today; thus the
Commission's proposal to give the USDI line authority over
these agencies actually requires strengthening the USDI's
authorities. Indeed, the Commission no longer supports giving
the USDI line authority over NSA, NGA, and NRO.
The Committee also has concerns about the Deputy NID for
Homeland Intelligence, who would be either the Undersecretary
of Homeland Security for IA&IP or the head of the FBI Office of
Intelligence. This formulation leads to the awkward structure
under which a Department of Homeland Security official has line
authority over an FBI official, or vice versa.
C. The Office of the NID
The Commission does not specify what positions should be
created in the Office of the NID to assist in managing the
National Intelligence Program. However, the authorities of the
NID arguably require a basic list of officials common to most
Executive Branch entities. These officials should not also be
officials within the intelligence agencies themselves; in
contrast, today the DCI's general counsel is also the CIA's
general counsel, leading to an inherent conflict of interest
when the DCI has to resolve an issue between the CIA and
another intelligence agency. The officials needed by the NID
include:
(1) A general counsel, to advise the NID regarding
his or her authorities and to resolve legal disputes
among component agencies on issues such as information-
sharing;
(2) A comptroller, to act in conjunction with the
chief financial officer (CFO) to assist the NID in
executing the NIP appropriation;
(3) A chief information officer, to assist the NID in
setting standards for information technology and
network architecture;
(4) A civil rights and civil liberties officer;
(5) A privacy officer; and
(6) A CFO.
(4) It should be noted that the CFO will be subject to the
Chief Financial Officers Act under title 31 of the U.S. Code.
As required by the CFO Act, the CFO will oversee all financial
management activities relating to the NIA's programs and
operations. The NID will be responsible for development and
maintenance of an integrated agency accounting and financial
management system. In addition, the NID will direct and oversee
the NIA's financialmanagement personnel, activities and
operations. The Committee believes that including the CFO in the CFO
Act is in keeping with a growing trend towards emphasizing the
importance of integrating financial management best practices in agency
management.
The legislation also creates an inspector general to
monitor, inspect, and audit, and, where appropriate,
investigate activities within the Office of the NID, the NCTC,
the centers, and the interstices among the elements of the
intelligence community. Currently, there is no inspector
general with plenary authority to investigate interagency
cooperation. Thus there is no inspector general with clear
authority to investigate the information-sharing problems among
agencies that contributed to the failure to prevent the 9/11
attacks. This situation has not been conducive to maximizing
performance in the intelligence community. The NIA inspector
general would not have jurisdiction over the internal
operations of the intelligence agencies and thus would not
duplicate the activities of their inspectors general.
D. The National Intelligence Authority
The Office of the NID, the NCTC, and the national
intelligence centers shall be housed within the National
Intelligence Authority. In addition, the legislation moves the
National Intelligence Council into the NIA.
The Council is currently responsible for coordinating and
producing national intelligence estimates. The Council will
continue to do so. National intelligence estimates will
generally be formulated by analysts from the relevant national
intelligence center, the Bureau of Intelligence and Research,
and DIA, as well as other departmental offices with relevant
expertise. In addition, the drafting of the President's Daily
Briefing shall be done within the NIA, based in large part on
input from the national intelligence centers.
The National Intelligence Director, like the head of any
other agency in government, will have responsibility for
managing the personnel of the National Intelligence Authority.
To assist the NID with these workforce management
responsibilities, section 163 of the legislation grants the NID
the authorities currently available to the Director of the CIA
with respect to CIA personnel.
The legislation makes clear that employees and applicants
for employment at the NIA will have the same rights and
protections under the Authority currently afforded to employees
of the CIA. Thus, for example, the employees of the NIA, like
those at the CIA, will have generally the same rights and
remedies in cases of alleged discrimination on the basis of
race, color, religion, sex, national origin, age, or
handicapping condition as employees at other federal agencies,
including the right to appeal to the EEOC and to federal
courts.
The Committee is cognizant, however, that employees at the
CIA, like most employees throughout the intelligence community,
do not have external appeal rights to the Merit Systems
Protection Board or review in court for the majority of adverse
actions. With respect to adverse actions, the Committee
believes that it is important that NIA employees receive, at a
minimum: advance written notice of such action; a reasonable
opportunity to respond; the opportunity to seek the advice of
private counsel; an opportunity to obtain specific information
on which the action is based, provided the receipt of such
information would not violate the national security interests
of the United States; and the right to appeal to an independent
internal panel. The Committee believes it is important that the
NID consider adoption of the system in place within the CIA, to
ensure that NIA employees can carry out their duties in the
interest of the United States with assurance that a fair
process is available should any unlawful or unfair workplace
practices occur.
VIII. CREATING NATIONAL INTELLIGENCE CENTERS TO FUSE INTELLIGENCE
CAPABILITIES AGAINST MISSIONS
The legislation authorizes the NID to create national
intelligence centers to provide for unified direction of
intelligence agencies/components in the NIP to fulfill
missions. The Commission's recommendation stems from the pre-9/
11 and current situation in which no one below the DCI is
responsible for how CIA, NSA, and other intelligence agencies
work together on a specific issue. For example, in the area of
counterterrorism, as recognized by the Congressional Joint
Inquiry and the Commission, the DCI's Counterterrorist Center
is an organ of the CIA and concentrates on human intelligence
rather than on organizing and integrating the actions of
agencies with counterterrorism responsibilities across the
government.
Senior intelligence officials, including former DCI Tenet,
have endorsed the concept of integrating intelligence assets in
a mission-specific orientation.\16\ The legislation does not
specify the centers' topics; instead, the NID would establish
the centers on topics reflecting functional and geographic NSC
priorities--such as counterproliferation, Russia, and East Asia
& China. If a center is no longer needed, the bill allows the
NID to terminate a center, subject to Congressional
notification.
---------------------------------------------------------------------------
\16\ Larry Kindsvater, ``The Need to Reorganize the Intelligence
Community,'' in Studies in Intelligence, Vol. 47, no. 1 (2003).
Kindsvater was subsequently confirmed as the Deputy DCI for Community
Management. For DCI Tenet's statement, see Law Enforcement and the
Intelligence Community, hearing before the National Commission on
Terrorist Attacks Upon the United States, April 14, 2004, p. 20 (``The
organization around missions where those capabilities are fully
integrated in whatever structure you want to create I think is the way
ahead in the future, and that's the way we're moving'').
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Among their responsibilities, the centers will provide all-
source analysis of intelligence, identify and propose to the
NID intelligence collection and analysis requirements, have
primary responsibility for net assessments and warnings, and
ensure appropriate officials have access to a variety of
intelligence assessments. The NID will supervise the work of
the centers. With their ability to harness the resources of
entities with differing capabilities and create a unified
effort tofocus on a particular issue area, the centers will
improve the intelligence community's ability to respond with speed and
agility.
Some criticize the national intelligence centers as
threatening to drain offices such as the CIA Counterterrorist
Center of analysts critical for the performance of human
intelligence. A strength of the CIA Counterterrorist Center is
indeed its close linkage between analysts and human
intelligence operators. But there are two basic types of
analysts in the intelligence community: analysts who provide
tactical assistance to a collection activity, and analysts who
conduct strategic analysis. The former, for example,
concentrate on whether a communications intercept of a
terrorist referencing (hypothetically) a ``wedding'' refers to
a real wedding or an attack--and must have a very detailed
knowledge of that terrorist's life and activities. These types
of analysts should generally stay within the agencies, such as
at the Counterterrorist Center, to assist collectors. But a
number of strategic analysts--who, for example, fuse together
all sources of information to provide a comprehensive picture
of al Qaeda's strategy and objectives over the next decade--
should move to the centers in order to be at the focal point at
which information is consolidated from all sources.
One option was to have the legislation both mandate that
the NID create centers on NSC-generated topics and explicitly
imbue the centers with specific authorities. This approach is
akin to the Goldwater-Nichols Act, which sought to strengthen
the combatant commanders vis-a-vis the Military Services by
explicitly delineating their authorities in a long list. The
message that Congress sent to the Military Services was clear:
the combatant commanders are in charge of warfighting. Yet
ultimately the Committee concluded that mandating that the NID
create specific centers--rather than authorizing the NID to
create them pursuant to priorities established by the NSC--
might be too restrictive. Some topics might not require full-
fledged, permanent centers but rather more ad hoc arrangements.
Thus the legislation does not require the NID to create
specific centers but authorizes the NID to do so. Given the
critical role these centers will play in reorganizing how the
intelligence community addresses critical issues, it is the
Committee's expectation that the NID will create centers as
needed expeditiously.
Each center will be led by a director, who will be
appointed by the NID and will also serve as the NID's principal
adviser in that center's area of responsibility. The center's
director reports to the NID. Each center will be provided a
professional staff from personnel transferred, assigned, or
detailed from elements of the intelligence community as
directed by the NID.
The NID will designate an agency to provide administrative
support to each center. However, this provision does not imply
that such agency will have authority over the center. The
situation that afflicts the Counterterrorist Center, in which a
center with intelligence community-wide responsibilities became
subsumed within the CIA, will be unacceptable for a national
intelligence center. The national intelligence center is under
the authority of the NID, not of any agency.
The National Counterintelligence Executive will also be
moved to the NIA in order to integrate it into the new
structure. This entity is similar to a national intelligence
center.
IX. CREATING THE NATIONAL COUNTERTERRORISM CENTER TO FUSE INTELLIGENCE
AND COORDINATING INTERAGENCY STRATEGY AGAINST TERRORISM
The bill creates a National Counterterrorism Center (NCTC)
within the National Intelligence Authority, per the
Commission's recommendation. The NCTC will develop and unify
strategy for civilian and military counterterrorism efforts;
effectively integrate counterterrorism intelligence activities
of the U.S. Government, both inside and outside of the United
States; and develop interagency counterterrorism plans, i.e.
plans that involve more than one department, or element of the
executive branch (unless otherwise directed by the President),
and include the mission, objectives to be achieved, courses of
action, coordination of agency operational activities,
recommendations for operational plans, and assignment of
departmental or agency responsibilities.
The Commission's recommendation for an NCTC arises from two
main findings. First, intelligence agencies are not integrated
in their efforts against terrorism. Thus the NCTC will have a
Directorate of Intelligence--in essence, a National
Intelligence Center which shall have primary responsibility for
the analysis of terrorism and terrorist organizations from all
sources of intelligence, whether collected inside or outside
the United States. Second, the Commission found that
counterterrorism requires an Executive Branch-wide effort to
mount joint operations to counter terrorism. Thus, the NCTC
will have a Directorate of Planning to develop plans, assign
responsibilities, monitor implementation, and provide reports
to the NID and the President.
A. Interagency Counterterrorism Planning
The NCTC's Directorate of Planning will concentrate on
planning activities that are ``joint,'' meaning that they
involve more than one agency. Such planning will be at both the
strategic level, such as ``winning hearts and minds'' in the
Muslim world, and at a more specific level, such as hunting for
Bin Ladin. For example, the NCTC will craft plans for dealing
with an al Qaeda cell--whether to destroy it with military
force or infiltrate it to acquire leads on Bin Ladin. The NCTC
will assign agencies responsibilities as outlined in its plans.
NCTC's plans will be developed utilizing input from personnel
of other departments and agencies who have expertise in their
agencies' priorities, functions, assets, and capabilities with
respect to counterterrorism.
An analogy for understanding the NCTC's ``interagency
counterterrorism planning'' is lanes in a highway, with each
lane symbolizing an agency's expertise (e.g., diplomacy,
special operations, espionage, and law enforcement). The NCTC
will not tell each agency how to drive in its lane. But
effective counterterrorism requires choosing which lane to use
in a particular situation--meaning which type of activity, and
thus which agency, should have the lead in aparticular
situation. The NCTC will select the lane and propose a travel plan but
will have no authority to order an agency actually to drive. If an
agency head objected to the NCTC's plan and assignment of
responsibility, then the issue could be elevated to the President.
The Committee recognizes that the term ``operational
planning'' has a specific meaning in the DoD context.
``Operational planning'' for DoD refers to an arduous process
to delineating the details of operations--for example, the time
sequence of deployments of military assets, and where the
hinges are on a door for purposes of a special operations raid.
The NCTC can make specific recommendations for operational
plans. But the legislation makes clear that the NCTC's
assignments are not binding on agencies. In other words, the
NCTC lacks authority to direct operations by agencies in the
Executive Branch and will not be in the military chain of
command. Agency heads could object to the NCTC's plans, at
which point the NID could either accede or raise the issue to
the President. The NCTC will not resolve policy issues but
instead will elevate policy disputes to the President for
resolution.
B. The NCTC Director
The NCTC Director will be Senate-confirmed and the
equivalent of a Deputy Secretary. The NCTC Director reports to
the NID regarding the activities of the Directorate of
Intelligence and to the President and the NID regarding the
activities of the Directorate of Planning. The Commission's
report recommended this arrangement, although subsequent
statements indicated that the Commission favored the NCTC
director reporting directly to the President regarding
counterterrorism operations. The justification for this latter
arrangement apparently was that the NID is an intelligence
official and therefore should not be involved in advising the
President on counterterrorism activities across the Executive
Branch (which frequently may not involve any intelligence
agencies at all). Ultimately, the Committee determined that
giving the NCTC director two separate reporting chains, one to
the President and the other to the NID, could lead to confusion
and competition between the NID and the NCTC director.
The NCTC Director will play an active role in selecting key
counterterrorism officials in the Executive Branch; the head of
the relevant department or agency must seek the Director's
concurrence in the selection or recommendation to the President
for the Director of the CIA Counterterrorist Center, the
Assistant FBI Director in charge of the Counterterrorism
Division, the State Department's Ambassador-at-Large for
Counterterrorism, and any other official designated by the
President. If the Director does not concur in that selection,
then the head of the relevant department or agency must inform
the President of the Director's nonconcurrence.
X. CONCERNS ADDRESSED IN CREATING A NATIONAL INTELLIGENCE DIRECTOR
In crafting this legislation, the Committee addressed a
number of concerns it heard relating to the creation of a
National Intelligence Director.
A. Intelligence Support to the Warfighter
Some have expressed the fear that creating a NID with more
power and control over the national intelligence elements of
the Defense Department (i.e., NSA, NGA, and NRO) could harm the
provision of intelligence to the military. The Committee
carefully considered this concern, with full recognition that
intelligence is more vital to, and more closely integrated
into, military operations than ever before. Ensuring that the
military receives the intelligence that it needs will be one of
the core responsibilities of the NID. As stated by Acting DCI
John McLaughlin in his testimony before the committee,
``everyone in the intelligence community understands that NSA
and NGA, in particular, both integral parts of the national
intelligence community, have a vital role to play in supporting
combat, as does the CIA. And that role would have to be
preserved, regardless of who they report to or how this
community is ultimately structured.''
The committee believes that the NID can and will enhance,
not detract from, the quality of intelligence provided to the
military. For example, by providing for a common information
technology and ensuring that information is rapidly
disseminated to those who need it, the NID will provide a
tremendous benefit to the warfighter.
Nonetheless, the committee did not go as far as some have
proposed and place NSA, NGA and NRO under the exclusive control
of the NID. These agencies, as well as DIA, are national
intelligence and combat support agencies, and the Committee did
not want to take any action that might weaken the bonds that
tie them to the military forces they support in that capacity.
The Committee was also concerned that removing these agencies
entirely from the control of the Secretary of Defense could
lead the Defense Department to recreate the intelligence
capabilities of these agencies within programs controlled by
the Department, thus leading to unnecessary waste and
duplication.
Like the Commission, the Committee concluded that it is not
necessary to take such a dramatic step in order to achieve the
goal of a more unified national intelligence effort. The
Committee believes that a NID empowered to transform
intelligence agencies into a network will improve the quality
of intelligence for both the policymaker and the warfighter.
B. A Strong NID
In the course of holding eight hearings regarding the
restructuring of the intelligence community, the Committee was
urged not to create an NID that lacked true power, and that
served only as an additional layer of bureaucracy. The
Committee has heeded this warning, and has created an NID that
has the power to reform the intelligence community, improve the
quality of analysis, and help ensure joint action. In short,
the NID will be the strong head the intelligence community has
lacked.
Consistent with the 9/11 Commission's recommendations, the
Committee declined to create a new bureaucratic layer by moving
intelligence collection agencies into a massive newDepartment
of Intelligence. The CIA Director will report to the NID, as will the
NCTC Director and other NIC Directors. However, the heads of other
elements in the intelligence community will stay within their existing
chains of command. The desire to preserve clear lines of command also
caused the Committee to decline to pursue the 9/11 Commission's
recommendation to create three Deputy NID positions, filled by the CIA
Director, the Under Secretary of Defense for Intelligence, and the
Executive Assistant Director for Intelligence of the FBI. The Committee
heard testimony from a number of witnesses that this ``dual-hatting''
structure would be unworkable, and would create unclear lines of
command.
C. Reorganizing in Time of War
Finally, critics of reform argue that reorganization should
not take place in time of war because it would be too
disruptive. This criticism ignores the history of American
warfighting, in which significant changes have been made in
order to ensure victory. The Pentagon was constructed in World
War II, new technology was developed, and new organizational
units and tactics were developed to counter the enemy.
Moreover, this criticism either assumes that the intelligence
community is already structured appropriately to win the war on
terrorism--an assumption soundly rejected by the Commission--or
prioritizes the current structure over the requirements of U.S.
national security.
XI. CREATING A FORUM FOR DEPARTMENT-LEVEL DISPUTE RESOLUTION
The bill establishes a Joint Intelligence Community Council
to resolve conflicts at the cabinet level. The Joint
Intelligence Community Council will consist of the National
Intelligence Director (who will chair the Council), the
Secretary of State, the Secretary of the Treasury, the
Secretary of Defense, the Attorney General, the Secretary of
Energy, the Secretary of Homeland Security, and any other
officers as the President may designate. The Joint Intelligence
Community Council shall meet upon the request of the National
Intelligence Director.
The Joint Intelligence Community Council will provide a
critical forum for resolving disputes between entities in the
intelligence community if differences cannot be resolved at the
staff level. The Joint Intelligence Community Council ensures
that there is an established process through which the
Principals can discuss and resolve these differences on
intelligence issues. Such a forum is important, because
disputes that seem irreconcilable on the staff level are often
easily resolved in face-to-face meetings between Principals.
The JICC will also serve as an important advisory body to
the National Intelligence Director, helping to guide decision-
making and issue mid-course corrections. The Joint Intelligence
Community Council will assist the National Intelligence
Director in developing and implementing a joint, unified
national intelligence effort to protect national security by
advising the National Intelligence Director on establishing
requirements, developing budgets, financial management, and
monitoring and evaluating the intelligence community's
performance, and in ensuring the timely execution of programs,
policies, and directives established or developed by the
National Intelligence Director.
XII. STRENGTHENING THE OBJECTIVITY AND QUALITY OF INTELLIGENCE
Intelligence is rarely a silver bullet, pointing inexorably
to a single, wise course of action. But the quality of
intelligence is critical for ensuring that policymakers--both
in the Executive Branch and Congress--are in the best position
possible to make national security decisions. And the quality
of intelligence does not derive solely from the ability to
purloin secrets. The enemy's secrets are most useful when they
are analyzed--put into context of the known and unknown, used
to illuminate the enemy's actions, capabilities, and
intentions, and reflected upon from a strategic perspective.
The Committee is troubled by instances in which the quality
of intelligence analysis has been substandard, either due to
politicization of intelligence analysis or poor analytic
tradecraft. Two prominent examples of politicized intelligence
are the intelligence given to Congress in support of the Tonkin
Gulf Resolution of 1964, and intelligence apparently shaded by
DCI Bill Casey during the Iran-Contra Affair.\17\ And, as the
Senate Select Committee on Intelligence's recent report makes
clear, intelligence analysis prior to the current Iraq War was
deeply flawed.
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\17\ George Schultz, Turmoil and Triumph: My Years as Secretary of
State (Charles Scribner's Sons, 1993), p. 691.
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Accordingly, the Committee's legislation places strong
emphasis on ensuring that intelligence is both objective and
unbiased. The legislation also ensures that Congress has access
to the intelligence it needs to support its decisionmaking.
A. Ensuring That Intelligence Is Objective, Independent, and Based on
Alternative Views
The legislation requires that the NID provide the President
and Congress with national intelligence that is timely,
objective, independent of political considerations, and which
has not been shaped to serve policy goals. Indeed, the bill
makes it clear that the NID is responsible for improving the
quality of our intelligence analysis. First, the NID is to
promote and evaluate the utility of national intelligence to
consumers in the U.S. government. Second, the NID is also to
ensure that policymakers have access to a variety of
intelligence assessments and analytical views. The Committee
has heard repeated testimony about the importance of ensuring a
diversity of analytical views and believes that the bill makes
this responsibility clear.
The Director of the NCTC and directors of other national
intelligence centers are required to provide the President,
Congress, and the NID with intelligence that is timely,
objective, independent of political considerations, and which
has not been shaped to serve policy goals. The CIA director has
a similar obligation for any intelligence produced by CIA.
The National Intelligence Council is required to ensure
that its intelligence estimates are timely, objective,
independent of political considerations, and have not been
shaped to serve policy goals. The Council's products must
include alternative views held by elements of the intelligence
community. Indeed, the NID shall ensure that the Council's
products (1) distinguish within the analysis between
intelligence, assumptions, and judgments; (2) describe the
quality and reliability of the intelligence; (3) present and
explain alternative conclusions, if any; and (4) characterize
any uncertainties.
B. Ensuring Congressional Access to Intelligence
The legislation includes several provisions to enhance
Congress' access to intelligence.
No officer or agency of the Executive Branch can require
the NCTC Director to receive permission to testify before
Congress. In addition, no officer or agency of the Executive
Branch can require the NCTC Director to submit testimony,
recommendations, or comments to Congress for review prior to
submission to Congress if the material includes a statement
indicating they are the NCTC's views and do not necessarily
represent the Administration's views.
The legislation requires that the Congress receive a range
of analytic products to inform Congress on national security
issues. The NID, the NCTC Director, and the director of any
national intelligence center must provide to the Congressional
intelligence committees and any other committee with
jurisdiction over the subject matter to which the information
relates all intelligence assessments, intelligence estimates,
sense of the intelligence community memoranda, and daily senior
executive intelligence briefs. Excluded from this list are the
Presidential Daily Brief and those reports prepared exclusively
for the President.
The legislation also provides a mechanism by which Congress
can receive other intelligence information, such as collection
data that underlies the analytic reports Congress would
routinely receive. The NID, NCTC Director, and directors of
other national intelligence centers shall respond within 15
days to requests for any intelligence information from the
Congressional intelligence committees or other committees of
Congress with jurisdiction over the subject matter to which the
information relates. The NID, NCTC Director, and directors of
other national intelligence centers are also required to
respond to such requests from the Chairman, Vice Chairman, or
Ranking Member of the Senate or House intelligence committees.
The NID, NCTC Director, and directors of other national
intelligence centers are required to provide the requested
information unless the President certifies that the information
is not being provided due to a Presidential privilege pursuant
to the United States Constitution.
Finally, employees or contractors of the NIA, CIA, DIA,
NGA, NSA, FBI, and other agencies principally involved in the
conduct of foreign intelligence or counterintelligence are
permitted to disclose certain information to Congress without
reporting it first to the appropriate inspector general. The
information they may report is information, including
classified information, that they reasonably believe provides
direct and specific evidence of a false or inaccurate statement
to Congress contained in an intelligence report to Congress or
that intelligence information has been withheld from Congress.
C. Establishment of the Ombudsman of the National Intelligence
Authority
The bill establishes an Ombudsman of the National
Intelligence Authority. The NIA Ombudsman is modeled after the
Ombudsman currently established at the Central Intelligence
Agency. It is intended that the Ombudsman will serve as an
independent and informal counselor for those who have
complaints about real or perceived problems of politicization,
biased reporting, or lack of objective analysis. The Ombudsman
will also have the authority to monitor the effectiveness of
measures taken to address these problems. The Ombudsman will
also have the authority to undertake review of analytic product
to ensure that analysis is timely, objective, independent of
political considerations, and based upon all sources available
to the intelligence community.
In carrying out these duties, the Ombudsman will be
authorized to receive complaints, and review analytic products
produced by the National Intelligence Authority, any element of
the intelligence community within the National Intelligence
Program, and to the extent they are involved in the analysis of
national intelligence, other agencies within the intelligence
community.
The bill establishes within the Ombudsman's office an
Analytic Review Unit. This Unit is intended, subject to the
supervision of the Ombudsman, to conduct detailed evaluations
of analysis by the National Intelligence Authority, any element
of the intelligence community within the National Intelligence
Program, and to the extent they are involved in the analysis of
national intelligence, other agencies within the intelligence
community. The Ombudsman is to provide the Analytic Review Unit
with a staff who possess the appropriate expertise to carry out
this work.
The bill also provides that the Ombudsman may refer to the
Office of the Inspector General for further investigation
serious cases of misconduct relating to the politicization of
intelligence, biased reporting, or lack of objective analysis.
XIII. ENSURING INFORMATION-SHARING
The legislation will require that the President establish
an information sharing network, to break down the stovepipes
that currently impede the flow of information. The network,
modeled on a proposal by a task force of the Markle Foundation
that was endorsed by the 9/11 Commission, is to consist of
policies and information technology designed to facilitate and
promote the sharing of intelligence and homeland security
information throughout the federal government, with state and
local agencies and, where appropriate, with the private sector,
while simultaneously ensuring privacy and civil liberties
concerns are adequately addressed.
The bill will give the President responsibility for issuing
overall guidelines governing the collection, sharing and use of
intelligence and homeland security information as well as
guidelines to protect privacy and civil liberties. The Director
of OMB will be given primary responsibility for implementing
the new information sharing network, and this official is
required to appoint a principal officer (who shall have the
rank of a Deputy Director) to handle the day-to-day
responsibilities. The OMB Director will be required to submit
to Congress a detailed enterprise architecture and
implementation plan within nine months and will have to
regularly report to Congress on the network's progress.
Individual agencies involved in the information sharing network
will also have to submit plans for implementing the network.
The bill will give the President responsibility for issuing
overall guidelines governing the collection, sharing and use of
intelligence and homeland security information as well as
guidelines to protect privacy and civil liberties. The Director
of OMB will be given primary responsibility for implementing
the new information sharing network, and the NID is required to
appoint a principal officer (who shall have the rank of a
Deputy Director) to handle the day-to-day responsibilities. The
OMB Director will be required to submit to Congress a detailed
enterprise architecture and implementation plan within nine
months, and individual agencies involved in the information
sharing network will also have to submit plans for implementing
the network; both will have to regularly report to Congress on
their progress.
In addition, this section of the bill establishes an
Executive Council on Information Sharing, made up of key
federal officials, as well as state and local and private-
sector representatives, to work with the OMB Director to
implement the network and coordinate efforts, and an Advisory
Board on Information Sharing, made up of outside experts, to
provide advice and expertise to the President and Executive
Council.
XIII. PROTECTING CIVIL LIBERTIES AND PRIVACY
The National Commission on Terrorist Attacks Upon the
United States concluded in its recommendations that ``[w]e must
find ways of reconciling security with liberty, since the
success of one helps protect the other * * * [t]he choice
between security and liberty is a false choice, as nothing is
more likely to endanger America's liberties than the success of
a terrorist attack at home.'' \18\ The Commission also noted
that ``[t]his shift of power and authority to the government
calls for an enhanced system of checks and balances to protect
the precious liberties that are vital to our way of life.''
\19\ In light of this, the Commission recommended that in this
time of increased and consolidated government authority, there
should be a board within the executive branch to oversee
adherence to the guidelines the Commission recommends and the
commitment of the government to protect civil liberties.
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\18\ Commission report, p. 395.
\19\ Commission report, p. 394.
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Testimony received by the Committee during its hearings on
the Commission report highlighted the importance and need to
implement this recommend. In his testimony before the Committee
on July 30, 2004, Lee Hamilton, Vice Chair of the Commission,
stated, ``[w]e believe that [regarding] the civil liberties,
you need an oversight board in the Executive Branch as a kind
of an added check on executive authority, and that's a very
important board.''
In light of the Commission recommendations and concerns
about ensuring privacy and civil liberties concerns are
appropriately considered, Title II, Subtitle B of the proposed
legislation creates a Privacy and Civil Liberties Oversight
Board (``Board'').
The Board is to have a Chairman and four additional
members, who are to be appointed by the President with the
advice and consent of the Senate. Members of the Board are to
serve fixed, six-year terms, and no more than three of the five
Board members may be of one political party.
The bill gives the Board two functions. First, the Board is
to advise the President and other federal officials at the
front-end, when they are proposing, making or implementing
policies related to efforts to protect the Nation against
terrorism, to ensure that the protection of privacy and civil
liberties are appropriately considered. Although policy makers
are required to get the Board's views on proposed policies and
actions, the Board does not have any veto authority over any
proposal.
Second, the Board is to investigate and review government
actions at the back end--that is, to review the implementation
of particular government policies to see whether the government
is acting with appropriate respect for privacy and civil
liberties and adhering to applicable laws, regulations and
policies. In conducting investigations, the bill gives the
Board the authority to obtain documents and access to personnel
from government agencies and the ability to subpoena documents
and testimony from those outside the government.
The bill also requires that the heads of certain federal
agencies involved in the efforts to protect the Nation from
terrorism designate at least one senior agency official to
serve as privacy and civil liberties officers for the agencies.
These officers' functions mirror those of the Board on an
agency-specific level: they are to (1) advise the agency in
appropriately considering privacy and civil liberties concerns
in the development and implementation of policies related to
efforts to protect the nation against terrorism; (2)
investigate and review agency actions and policy implementation
to ensure that the agency is adequately considering privacy and
civil liberties in its actions; and (3) ensure that the agency
has a process for receiving and responding to complaints from
individuals.
XIV. PROMOTING AN INTELLIGENCE WORKFORCE FOR THE 21ST CENTURY
A central theme of the 9/11 Commission's report was the
need to better combine the resources of government effectively
to achieve unity of effort,\20\ and the Commission offered
several recommendations to better marshal the personnel
resources of the government and of the nation for this effort.
The creation of a common set of personnel standards within the
intelligence community should help create a group of
intelligence professionals better able to collaborate on joint
projects, and, to accomplish this, the Commission recommended
that the NID should--
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\20\ Commission report, p. 399.
set personnel policies to establish standards for
education and training and facilitate assignments at
the national intelligence centers and across agency
lines.\21\
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\21\ Commission report, p. 414; see also p. 409.
Moreover, to help transform the culture of the intelligence
community from a service-specific mind-set to joint, and
support more integrated operations--including, especially, the
unified joint commands constituting the proposed NCTC and other
national intelligence centers--the Commission endorsed the kind
of approach applied by the Goldwater-Nichols Act. That Act
established a joint program of joint personnel management for
military officers (such as requiring military officers to serve
tours outside of their service in order to win promotion) in
order to foster a more integrated structure and to improve the
quality of joint operations.\22\
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\22\ Commission report, pp. 403, 408-409.
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Testimony at Committee hearings supported and expanded upon
these points. For example, Max Stier, President and CEO of the
Partnership for Public Service, reinforced the importance of
fostering an organizational culture supportive of joint action,
including through ``programs to improve intelligence training
and collaboration across agencies and among all levels of
government'':
Such provisions recognize that we need not just an
organizational change, but a cultural change within the
intelligence community if the reforms being considered
by the Committee are to succeed. People training
together, and training for joint missions with other
federal agencies and with other levels of government,
will go a long way toward shifting the intelligence
workforce toward the `need to share' mindset that is so
critical.\23\
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\23\ The 9/11 Commission Human Capital Recommendations: A Critical
Element of Reform, hearing before the Senate Governmental Affairs
Committee Subcommittee on the Oversight of Government Management, the
Federal Workforce, and the District of Columbia, 108th Congress
(September 14, 2004) (testimony of Max Stier, Partnership for Public
Service).
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A. The NID's Community-Wide Workforce Responsibilities
The Committee's bill assigns the NID the primary
responsibility for establishing new workforce policies for the
intelligence community that would achieve the improvements in
integration called for by the Commission. The NID's key
responsibilities in this area are set forth in section
112(a)(8) of the bill, which requires the NID to develop and
implement, in consultation with the rest of the community and
the affected departments, personnel policies and programs to
accomplish a number of objectives, to enhance the capacity for
joint operation, as well as the general quality and effective
management of the workforce.
For example, the NID is responsible for establishing
policies and programs that encourage and facilitate the
rotation of personnel to the NCTC and to other national
intelligence centers, as well as between elements of the
community, and that set standards for education, training, and
career development. The community-wide policies and programs
will encourage and facilitate the recruitment and retention of
individuals who are highly qualified, and will provide for the
recruitment and training to achieve a workforce that is
sufficiently diverse for the most effective collection and
analysis of intelligence. The NID is to make an individual's
service in more than element of the intelligence community a
condition of promotion to certain positions, and must include
the specific personnel-management enhancements set forth in
section 114 to facilitate and support joint and integrated
operations. The policies and programs must also generally
provide for effective human capital management within the
intelligence community, and must be consistent with the public
employment principles of merit and fitness.
In the establishment of any personnel policies, programs,
and standards for the intelligence community, the Committee
believes that the NID should ensure an open and transparent
process that includes consultation with affected agencies and
personnel at all levels. The NID should provide for
comprehensive communications strategies that reach out to
affected agencies and personnel both to gain the benefit of
their suggestions and experience and to make the process and
the resulting policies and standards as fair and transparent as
possible. The Committee also notes the need to provide the
necessary training for managers to implement new human capital
policies and practices and urges the NID to be sure such
training is provided before such policies and practices are
implemented.
B. Facilitating Joint and Integrated Intelligence Operations
The Committee agrees with the Commission's finding that the
Goldwater-Nichols Act of 1986 provides a useful model for
achieving more integrated operations within the intelligence
community. Accordingly, section 114 of the bill sets forth
several specific steps that the NID will undertake to
facilitate staffing of joint and community-management
functions. The NID will establish incentives for service at the
national intelligence centers, the NCTC, and in other community
management positions. Moreover, personnel assigned or detailed
to service under the NID must be promoted at rates equal to or
greater than other personnel. The NID will also establish
personnel-management mechanisms to facilitate and encourage the
rotation of personnel through various elements of the
intelligence community in the course of their careers.
C. The Chief Human Capital Officer of the National Intelligence
Authority
To assist the NID in fulfilling the highly critical and
complex personnel management functions assigned by the
legislation, section 129 of the bill requires the NID to
appoint a Chief Human Capital Officer (CHCO). This provision
builds on legislation agreed to by this Committee and enacted
in 2002 as part of the Homeland Security Act, Public Law 107-
296,\24\ requiring the appointment of CHCOs at departments and
many agencies throughout the government.\25\ The CHCO of the
National Intelligence Agency established in this legislation
would advise and assist the NID in exercising his authorities
and responsibilities with respect to the intelligence community
workforce as a whole, and would also help in carrying out the
entire human capital management program at the NIA itself.
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\24\ Business Meeting to Consider Substitute Amendment to S. 2452,
Senate Committee on Governmental Affairs, 107th Cong., July 24-25,
2002; Congressional Record, pages S8105, S8155, Sept. 3-4, 2002.
\25\ 5 U.S.C. Sect. 1401-1402.
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The Chief Human Capital Officer will look strategically at
the workforce challenges facing the intelligence community and
assist the NID with the development of common personnel
policies and standards critical to the fundamental reform of
the intelligence community. The CHCO will also assist the NID
with the selection, training, and development of a highly-
qualified workforce to meet the NIA's strategic needs. The
Committee is aware that many agencies within the intelligence
community, such as the CIA, now have appointed Chief Human
Capital Officers. The Committee strongly encourages the CHCO to
meet periodically with these individuals and other human
resource professionals within the intelligence community to
ensure the alignment of human capital policies with the
intelligence community's current and future mission needs.
D. Security Clearances
In recent years, both the number of individuals requiring
clearances and the number of individuals requiring access to
higher levels of classified information has increased. The
complexity of the current process for providing and maintaining
security clearances is a barrier to the efficient movement of
both employee and contract personnel who require access to
information to perform their assigned tasks. The government
must provide high-quality investigations and timely
adjudication of security clearances to help meet our
intelligence needs.
The Commission recommended that a single agency be made
responsible for providing and maintaining security clearances,
insuring uniform standards--including uniform security
questionnaires and financial report requirements, and
maintaining a single database. In addition, the Commission
suggested that the agency could also be responsible for
administering polygraph tests on behalf of organizations that
require them.\26\ The Commission made these proposals in the
context of helping accelerate the process for national security
appointments during a change in administrations; the Committee
believes reforms of the process for granting security
clearances is also important to improve personnel management
throughout the intelligence community.
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\26\ Commission report, p. 422.
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Section 115 of the legislation includes a number of
provisions to address the long-standing problems surrounding
the security clearance process. The legislation would require
the President to designate a single federal agency within 45
days of the date of enactment to be responsible for providing
and maintaining clearances, and would require the transfer of
personnelsolely responsible for security clearance
investigations to help ensure the agency is fully functional within one
year of the date of enactment.\27\ The Committee expects the agency
selected to make use of all available resources to help eliminate the
current backlog. The Committee intends the agency to enter into
Memoranda of Understanding with agencies carrying out responsibilities
relating to security clearances or security clearance investigations
before the date of enactment of this Act. At present, there are
eighteen non-defense agencies performing security clearance
investigations.\28\ Client agencies may continue to perform their own
adjudications and may continue to conduct their own polygraph
examinations.
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\27\ The Committee recognizes recent legislation authorizing the
transfer of over 1,800 security clearance investigative employees. P.L.
108-396, Section 906, 117 Stat. 1392, 1561-1563 (2004). As of the date
of this report, the transfer had not taken place.
\28\ Briefing by Office of Personnel Management, September 2002.
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The legislation would also require the President, acting
through the NID and in consultation with the agency selected to
provide and maintain clearances, to establish uniform standards
and procedures for the access to classified information. The
standards would apply to both employee and contract personnel.
The investigative standards should provide meaningful
information to individuals making the decision whether or not
to grant a clearance. For example, GAO recently reported that
less than one-half of one percent of the potential security
issues identified during an investigation are derived from
neighborhood checks; however, this information source accounts
for about 15 percent of the investigative time.\29\
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\29\ GAO-04-632, p. 34.
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This section would also require reciprocity for clearances
at the same level among departments, agencies, and elements of
the executive branch. The Committee believes reciprocity will
help facilitate assignments at the national intelligence
centers and across agency lines within the intelligence
community.
The agency selected would also be tasked with establishing
and maintaining a database of all clearances to help ensure
reciprocity. The establishment and use of a database, which
should be available to client agencies, will allow clearance
status to be centrally verified, and prevent needless loss of
time and resources while security officers verify the clearance
of individuals outside of the immediate department, whether the
individual is transferred to a joint assignment or simply needs
to attend a meeting or have access to a document.
Finally, in keeping with this broader effort on security
clearances, the legislation provides that the NID will have
responsibility with respect to access to Sensitive
Compartmentalized Information, because section 112(b) of the
bill specifically provides that the President shall act through
the NID in setting standards for the grant of access.
E. National Intelligence Reserve Corps
For the intelligence system to have the agility that the
current times require, it must have the tools to maintain the
services of individuals with unique or specialized skills and
qualifications. To assist the NID in responding this challenge,
section 116 of the legislation provides the NID discretionary
authority to establish and train a National Intelligence
Reserve Corps. The corps would allow for temporary reemployment
of former employees of the elements of the intelligence
community to meet emergency mission requirements. As a
recruitment incentive, former employees who volunteer and are
selected for the corps would not be subject to a reduction in
annuity from the Civil Service Retirement and Disability Fund.
The dual compensation waiver is consistent with the authority
recently granted to the Department of Defense to hire
individuals for hard-to-fill positions where the annuitant has
unique or specialized skills and qualifications.\30\ The
Committee believes this critical hiring flexibility will help
address the challenges facing the intelligence community, while
also ensuring retirements do not leave the NID at a critical
disadvantage.
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\30\ 5 U.S.C. Sect. 9902.
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F. Intelligence Community Scholarship Program
The intelligence community needs every tool available to
help recruit and train individuals with the skills critical to
the community's mission and goals. Shortly after the September
11 attacks, Robert Mueller, Director of the Federal Bureau of
Investigation, made a public plea for speakers of Arabic and
Farsi to translate documents that were in U.S. possession but
which were left untranslated due to a shortage of employees
with proficiency in those languages.\31\ The Commission Report
recommended that the CIA Director should emphasize (1)
rebuilding the CIA's analytic capabilities; and (2) developing
a stronger language program, with high standards and sufficient
financial incentives.\32\ These reports demonstrate that action
is needed to help intelligence community agencies more
effectively recruit highly-skilled individuals for positions
within the intelligence community.
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\31\ Richard Colvin and Soraya Nelson, ``FBI Issues Call for
Translator to Assist Probe,'' in L.A. Times, September 18, 2001.
\32\ Commission report, p. 415.
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To help meet this challenge, section 152 of the legislation
would require the NID to establish an Intelligence Community
Scholarship Program, to provide college scholarships to
students in exchange for service within the intelligence
community. The legislation would require the scholarships to be
awarded on a competitive process primarily on the basis of
academic merit and the needs of intelligence community
agencies. In addition to the criteria established in the
legislation, the Committee encourages the NID and intelligence
community agencies to give special consideration to applicants
seeking degrees in foreign language, science, and mathematics,
or a combination of those subjects. The legislation would
require 10 percent of the scholarships under the Program to set
aside for individuals who are employees of intelligence
community agencies on the date of enactment of this Act,
providing the NID with a tool to enhance the skills of the
existing intelligence community workforce.
G. Framework for Cross-Disciplinary Education and Training
Each agency of the intelligence community has training
elements and activities that seek to give employees trade craft
and functional skills to better perform their jobs. However,
there is no cross-agency entity whose goal it is to bring
together personnel from all the intelligence agencies to
promote understanding of each other's mission and cultures and
facilitate cooperation and collaboration. Some elements of the
federal government have educational institutions to promote
joint thinking and collaboration. For example, the defense
community has a robust, successful model in its National
Defense University, whose mission it is to: ``educate military
and civilian leaders through teaching, research, and outreach
in national security strategy, and national resource strategy;
joint multinational operations; information strategies,
operations, and resource management; acquisition; and regional
defense and security studies.'' \33\
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\33\ http://www.ndu.edu/info.mission.cfm.
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In testimony before the House Permanent Select Committee on
Intelligence, the CIA testified that it was examining the
concept of a national intelligence university, similar to the
various service war colleges and staff schools, stating it
could be as much a virtual university as an actual campus, as a
way to better train analysts across the community.\34\ The
Committee believes the intelligence community would benefit
from a framework for cross-disciplinary education and training
to help prepare selected individuals for joint rotations and
assignments within the intelligence community. To accomplish
this, section 151 of the legislation requires the National
Intelligence Director to establish an integrated framework that
brings together the educational components of the intelligence
community to promote joint education and training.
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\34\ Counterterrorism Analysis and Collection: The Requirement for
Imagination and Creativity, hearing before House Permanent Select
Committee on Intelligence, 108th Congress (August 4, 2004) (testimony
of Assistant Director of Central Intelligence for Analysis and
Production Mark Lowenthal).
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XV. INTERNAL REFORM AT THE FBI AND CIA
The 9/11 Commission recognized that structural reform at
the top-level of the Intelligence Community was merely a
precursor to, and not a guarantee of, improved performance by
each intelligence agency. The Commission recommended internal
reform of the FBI to ensure that its transformation toward
intelligence-collection and analysis is deep and permanent.
While obviously limited by the unclassified nature of its
report, the Commission also recommended that the CIA transform
its human intelligence capabilities in order to counter 21st
Century threats. The Committee sought to use its statutory
power to ensure as much as possible that such internal reforms
occur.
A. Ensuring the Permanence of FBI Reforms
The 9/11 Commission stated in its final report that, under
Director Robert Mueller, the FBI has made significant progress
in improving its intelligence capabilities. The Commission also
urged the FBI to fully institutionalize its shift to a
preventative counterterrorism posture. In accordance with the
Commission's recommendations, this section of the bill requires
the FBI to improve its intelligence capabilities by developing
and maintaining a national intelligence workforce consisting of
agents, analysts, linguists and surveillance specialists who
are recruited, trained, and rewarded in a manner consistent
with the intelligence mission of the Bureau. The FBI Director
shall carry out a program to enhance the capacity of the FBI to
recruit and retain individuals with skills relevant to the
intelligence mission of the Bureau. Also, the Bureau must
afford its analysts career opportunities commensurate with
those afforded analysts in other intelligence community
entities. These requirements are necessary to ensure that the
FBI creates and sustains a workforce with substantial expertise
in, and commitment to, the intelligence mission of the FBI.
The FBI's operational intelligence capabilities will be
improved because supervisors will be required to become a
certified intelligence officer. In order to ascend to higher
level intelligence assignments in the FBI, personnel must
receive advanced intelligence training, and have held an
assignment with another element of the intelligence community.
Field Intelligence Group (FIG) supervisors must report directly
to a senior manager responsible for intelligence matters, and
are responsible for fully integrating analysts, agents,
linguists, and surveillance personnel in the field. (The FBI
has established FIGs in all 56 of its field offices. The FIG is
the centralized intelligence component in each field office,
responsible for intelligence functions. FIG personnel analyze
and disseminate the intelligence collected in their field
office). These provisions are necessary to ensure that the FBI
provides effective leadership and infrastructure to support its
field intelligence components.
The Bureau is also directed to expand its secure facilities
to ensure the successful discharge by the field intelligence
components of the national security and criminal intelligence
missions of the FBI.
The FBI is directed to modify its budget structure, in
consultation with the Director of the Office of Management and
Budget, according to the four principle missions of the Bureau:
(1) Intelligence; (2) Counterterrorism; (3) Criminal
Enterprises/Federal Crimes; (4) Criminal justice services. This
modification streamlines the FBI's budget structure, and
segregates funds according to priorities, which allows for
greater transparency for those charged with oversight.
Reporting requirements to Congressional committees of
jurisdiction relative to the improvement of FBI intelligence
capabilities are established to provide Congress the
information it needs to fulfill its oversight role.
The legislation also allows the FBI to establish an
intelligence career service for FBI analysts. In consultation
with the Director of the Office of Personnel Management, the
FBI Director is given greater flexibility in establishing
analyst positions and rates of pay. Also, the FBI is placed on
a more level playing field with other elements of the
intelligence communitywith respect to analyst position
classification and pay. This increased pay authority allows the FBI to
create pay rates to appropriately compensate analysts living in high
cost of living areas.
By requiring that any FBI performance management system
established for intelligence analysts shall have at least one
level of performance above a retention standard, the Bureau
must have at least three levels of performance for purposes of
performance ratings. Currently, the FBI uses a ``pass/fail''
rating approach. This provision is consistent with prior GAO
recommendations to the House Appropriations Committee.
Reporting requirements to Congressional committees of
jurisdiction relative to the FBI's use of its new pay and
performance management system are established to provide
Congress the information it needs to fulfill its oversight
role.
B. Reforming the CIA To Develop a 21st Century Human Intelligence
Capability
The Central Intelligence Agency will be led by a Director
who will report to the National Intelligence Director in the
performance of those functions which will reside within the
CIA, which are to: collect intelligence through human sources
and other appropriate means; correlate, evaluate and
disseminate intelligence; provide overall direction and
coordination of the collection of intelligence through human
sources outside of the United States by other elements of the
government; and perform such other functions as the President
may direct. The bill preserves the existing protections of
civil liberties and prescribes that the CIA shall have no
police, subpoena or law enforcement powers or internal security
functions.
The bill creates a new structure for ensuring coordination
with foreign governments. The CIA Director will be responsible
for coordinating relationships between intelligence communities
here and abroad but will execute these responsibilities under
the direction of the NID.
The bill also contains provisions requiring reporting by
the CIA director on efforts to rebuild the CIA. As noted in the
Congressional Joint Inquiry and the Commission report, CIA's
human intelligence capabilities require substantial improvement
to meet the challenges of the 21st Century.
Moreover, the CIA ultimately stands to gain, not lose,
under the current legislation. The Commission noted that the
DCI currently has three roles: head of the Intelligence
Community, principal intelligence adviser to the President, and
head of the CIA. The Commission advocated separating the NID
from the CIA director, arguing that no person can do these
three jobs well and that DCIs tend to leave management of the
Intelligence Community to the side. The conduct of human
intelligence against the terrorist threat, and the 5-year
rebuilding of the CIA called for by DCI Tenet in his testimony
before the Commission, requires an official devoted full-time
to the task and not at the expense of other duties. And the CIA
can only benefit from improved information-sharing and
integration among intelligence agencies.
XVI. MONITORING PERFORMANCE
To enhance transparency and Congressional oversight, not
later than one year after the date of the enactment of this
Act, the NID shall submit to Congress a report on the progress
made in the implementation of this Act, including the
amendments made by this Act. The report shall include a
comprehensive description of the progress made, and may include
such recommendations for additional legislative or
administrative action as the Director considers appropriate.
To enhance transparency and Congressional oversight, not
later than two years after the enactment of the act, the
Comptroller General of the GAO shall issue an implementation
progress report and issue interim reports as the Comptroller
General deems appropriate. These reports are to provide
Congress with (1) an overall assessment of the progress made in
the implementation of this Act (and the amendments made by this
Act), (2) a description of any delays or other short-falls in
the implementation of this Act that have been identified by the
GAO, and (3) recommendations for additional legislative or
administrative action that the Comptroller General considers
appropriate. Each department, agency, and element of the United
States Government shall cooperate with the Comptroller General
in the assessment of the implementation of this Act, and shall
provide the Comptroller General timely and complete access to
relevant documents in accordance with section 716 of title 31,
United States Code.
XVII. BRIDGING THE FOREIGN/DOMESTIC DIVIDE IN HIGH-LEVEL POLICYMAKING
The bill merges the Homeland Security Council into the
National Security Council. The combined body, the National
Security Council, will now have, in addition to its traditional
responsibilities overseeing, coordinating, and creating foreign
and national security policies, the responsibility of assessing
U.S. objectives, commitments, and risks in the area of homeland
security, including overseeing and reviewing the homeland
security policies of the federal government.
Because terrorist organizations move easily across borders,
it is important that the creation and coordination of policy
priorities is not hindered by the foreign/domestic divide.
Currently, domestic homeland security and intelligence issues
are overseen by the Homeland Security Council, while the
National Security Council oversees foreign and national
security policies. The merger of these bodies will enable the
National Security Council to synthesize and amplify its ability
to analyze terrorist threats holistically.
Both the Homeland Security Council and the National
Security Council are chaired by the President. The bodies share
many of the same members. The Homeland Security Council
includes the Vice President, the Secretary of Homeland
Security, the Attorney General, the Secretary of Defense, and
such other individuals as the President may designate. The
National Security Council's statutory members are the Vice
President, the Secretary of State, the Secretary of the
Treasury, the Secretary of Defense, and the Assistant to the
President for National SecurityAffairs. The Chairman of the
Joint Chiefs of Staff is the statutory military advisor to the Council,
and the Director of Central Intelligence is the intelligence advisor to
the Council. The new National Security Council body will remain the
same, but will now include the Attorney General and the Secretary of
Homeland Security as statutory members.
XVIII. OTHER MATTERS
The legislation will take effect 180 days after the date of
enactment. However, the Committee believes that in order to
ensure the rapid implementation of this legislation, the
President should begin acting upon these reforms without delay.
Accordingly, the President would be authorized to determine
that the legislation or particular provisions thereof could
take effect on an earlier date. Upon doing so, the President
shall (1) notify Congress of the exercise of such authority;
and (2) publish in the Federal Register notice of the earlier
effective date or dates involved, including each provision (and
amendment) covered by such earlier effective date.
During the implementation phase of this Act, the NID, the
CIA director, and the Secretary of Defense shall jointly take
such actions as are appropriate to preserve the intelligence
capabilities of the United States during the establishment of
the NIA. The Committee wants to emphasize the importance of
remaining focused on the country's national security needs
while intelligence reforms occur.
The NIP's top-line aggregate appropriation figure will be
declassified in order to promote public accountability. The
Commission made this recommendation, in addition to
recommending that agency-specific levels be declassified.
Although declassification of the top line would show a trend or
particular spikes and dips over a period of years, there would
be no detail as to how funds are being spent or even why a
change occurred--such as due to inflation or rising salaries.
The apparent rationale for the Commission's latter
recommendation is so that the relative allocation of resources
between human and technical collection can be publicly debated.
The NID will submit a report to Congress as to whether
declassifying the top-line appropriations figures for each
agency in the Intelligence Community would harm national
security.
For fiscal year 2005, the legislation authorizes to be
appropriated such sums as may be necessary to carry out its
provisions. Speedy appropriation of initial funding will be
critical as the NID, the NIA, the NCTC, and the National
Intelligence Centers begin to operate and as the intelligence
agencies pursue internal reform.
III. Legislative History
Beginning in late July 2004, immediately after the issuance
of the 9/11 Commission's report, the Committee held a series of
eight hearings examining the Commission's recommendations and
the reorganization of the intelligence community. The content
of these hearings is summarized in the next section.
Following these hearings, the Committee held a business
meeting on September 21 and 22, 2004 to consider the National
Intelligence Reform Act of 2004 as an original bill.
At the business meeting, the Committee considered 26
amendments, and adopted 21, as follows:
Chairman Collins and Ranking Member Lieberman offered a
substitute amendment. Senators Collins and Lieberman also
offered a 2nd degree amendment to make technical changes to the
substitute, which was agreed to by voice vote. The substitute,
as amended, was then agreed to by voice vote.
Senator Coleman offered an amendment to require the
National Intelligence Director to notify the Senate Committee
on Governmental Affairs and the Homeland Security Committee of
the House of Representatives when intelligence personnel are
transferred to or from the Department of Homeland Security. The
Committee agreed to the amendment by voice vote.
Senator Durbin offered two amendments that were considered
en bloc. The first of these amendments modified the Privacy and
Civil Liberties Oversight Board to provide for fixed, six-year
terms for Board members, make the Chairman full-time, required
that Board members have expertise in civil liberties and
privacy, and provided that no more than three members of the
Board be members of the same political party. The second
amendment required that Members of the Board are to appear and
testify before Congress and provides that reports of the Board
and of agency privacy and civil liberties officers are to be
submitted to specific Congressional committees. These
amendments were agreed to en bloc by voice vote, and staff was
directed to draft language to ensure that Board members terms
were staggered.
Senator Durbin offered an additional amendment to modify
the standards of review used by the Privacy and Civil Liberties
Oversight Board in providing advice on proposals to retain or
enhance a governmental power, including a requirement that the
Board consider whether the executive branch has met its burden
of proving that the power is the least restrictive means of
accomplishing the objective. The Committee did not agree to
this amendment, by a vote of 6-10.
Senator Fitzgerald offered an amendment to place the
National Intelligence Authority under the Chief Financial
Officers Act of 1990, so as to subject the National
IntelligenceAuthority to the same financial management
requirements as other cabinet-level departments and major federal
agencies. The amendment was agreed to by voice vote.
Senator Lautenberg offered an amendment to establish a term
of five years for the National Intelligence Director, with the
possibility of reappointment, which was modified to provide
that the National Intelligence Director could be appointed for
``up to'' five years. Senator Specter offered a second-degree
amendment to provide that the National Intelligence Director be
appointed for a
single 10-year term and could be terminated only for cause. The
second-degree amendment was not agreed to by a vote of 3-14.
Senator Lautenberg's amendment, as modified, was not agreed to
by a vote of 7-10.
Senator Levin offered 13 amendments. The first of these
added a Subtitle C ``Independence of Intelligence Agencies'' to
Title II of the bill, requiring, among other things, that the
National Intelligence Director be located outside the Executive
Office of the President; that the National Intelligence
Director, the Director of the National Counterterrorism Center,
the CIA Director and all national intelligence center directors
provide time, objective and independent advice to the President
and to Congress; that Congress have access to national
intelligence; and that whistleblowers may under certain
circumstances report information directly to Congress. A
Senators Collins and Lieberman offered a second degree
amendment that made a number of changes to the provisions,
including exempting certain information prepared exclusively
for the President from required disclosure to Congress and
providing that the Ombudsman of the National Intelligence
Agency may refer serious cases of misconduct relating to the
politicization of intelligence to the NIA Inspector General for
investigation rather giving the initial investigative
responsibility to the Inspector General in the first instance.
The second degree amendment was agreed to by voice vote, and
the amendment, as amended, was then agreed to by voice vote.
Senator Levin's second amendment restricted the NCTC to
strategic planning. Senators Collins and Lieberman offered a
second degree amendment that provided, among other things, that
NCTC was responsible for developing interagency plans. The
second degree amendment was agreed to by voice vote, and the
amendment, as amended, was then agreed to by voice vote.
The third amendment offered by Senator Levin modified the
NCTC's authority to assign responsibilities for
counterterrorism operations to eliminate its authority to
assign responsibilities to specific elements of the Armed
Forces. The Committee agreed to this amendment by voice vote.
Senator Levin's fourth and fifth amendment were considered
en bloc. The fourth amendment provided that the NCTC was to
report to the President and the National Intelligence Director,
rather than through the National Security Council, on certain
counterterrorism matters. The fifth amendment required that the
President, rather than the National Security Council resolve,
any disagreements over plans and assignments by NCTC. The
Committee approved these amendments en bloc, by voice vote.
Senator Levin's sixth amendment provided that programs ``to
acquire intelligence for the planning and conduct of military
operations'' were not to be part of the National Intelligence
Program. Senators Collins and Lieberman offered a second degree
amendment that excluded programs ``to acquire intelligence
principally for the planning and conduct of joint or tactical
military operations'' by U.S. Armed Forces. The second degree
amendment was agreed to by the Committee by a vote of 10-6. The
amendment, as amended, was then agreed to by voice vote.
The seventh amendment offered by Senator Levin replaced the
National Intelligence Director's authority to establish and
approve the requirements and priorities governing the
collection of national intelligence with the authority to
coordinate the tasking of intelligence collection. The
amendment was not agreed to, by a vote of 6-11.
Senator Levin's eighth amendment was divided into two parts
for consideration by the Committee. The first part required all
transfers of personnel or funds by the National Intelligence
Director to be authorized by law and not exceed applicable
ceilings in such authorizations. The amendment was modified to
instead require that all transfers not exceed applicable
ceilings established in law. The Committee agreed to the Part 1
of the amendment, as modified, by voice vote. The second part
of the amendment limited the bill's authorization of
appropriations to fiscal year 2006 and was modified to limit
the authorization of appropriations to fiscal year 2005. Part 2
of the amendment, as modified, was agreed to by voice vote.
The ninth amendment Senator Levin offered excluded military
personnel and military personnel funds from the NID's authority
to transfer funds and personnel. The committee did not agree to
this amendment, by a vote of 7-10.
Senator Levin's tenth amendment required the National
Intelligence Director to consult with affected agencies before
reprogramming funds. The amendment was agreed to by voice vote.
Senator Levin's eleventh amendment required that
appropriated funds were to go the National Intelligence
Authority and be under the direct jurisdiction of the National
Intelligence Authority. The amendment was modified to provide
that the funds be appropriated to the National Intelligence
Authority but be under the direct jurisdiction of the National
Intelligence Director. The amendment, as modified, was agreed
to by the Committee by voice vote.
Senator Levin's twelfth amendment provided that the
National Intelligence Authority's certifying official may act
only to the extent authorized by law. The Committee agreed to
the amendment by voice vote.
The final amendment offered by Senator Levin provided that
where the National Intelligence Director is to recommend to the
President the termination of individual, the NID is to seek the
concurrence of the relevant agency or department head and, if
the agency ordepartment head does not concur, notify the
President of that fact. The amendment was agreed to by voice vote.
Senator Pryor offered an amendment to require the
Comptroller General to submit a comprehensive report to
Congress on the implementation of the legislation no later than
two years after the date of enactment. The Committee agreed to
this amendment by voice vote.
Senator Shelby offered an amendment to establish an
Analytic Review Unit with the NIA's Office of Inspector General
to conduct reviews of analytic products by the NIA or any
element of the National Intelligence Program or any analysis of
national intelligence by any element of the intelligence
community, to ensure that the analysis is timely, objective,
independent of political considerations, and based upon all
sources available to the intelligence community. The amendment
was modified to establish the Analytic Review Unit under the
NIA Ombudsman. The amendment, as modified, was agreed to by
voice vote.
Senator Specter offered an amendment to provide the
National Intelligence Director with the authority to supervise,
direct, and control elements of the intelligence community
performing national intelligence missions, including the CIA,
NSA, National Geospatial-Intelligence Agency, the National
Reconnaissance Office, and elements of the Defense Intelligence
Agency, and to provide that the head of each such element
report directly to the National Intelligence Director. The
Committee did not accept the amendment, by a vote of 5-12.
Senator Voinovich offered three amendments. The first of
these amendments permits the National Intelligence Director
with approval of the President, notification to Congress, and
consultation with the affected department, agency or element,
allocate or reallocate functions among officers of the National
Intelligence Program to establish, consolidate, alter, or
discontinue organizational units within the Program. The
amendment was modified to provide that this authority does not
extend to any action inconsistent with law. The amendment, as
modified, was agreed to by voice vote.
Senator Voinovich also offered an amendment to designate a
single federal agency to conduct security clearance
investigations and to maintain a database to help ensure
reciprocity among executive branch agencies for clearances. The
amendment was modified to clarify that agencies that currently
adjudicate and grant security may continue to do so after the
underlying investigations are transferred to a central agency;
that agency personnel whose sole function si to perform
clearance investigations will be transferred to the agency
designated to be the central agency for such investigations;
and to require that these security clearance reforms be fully
operations within one year. The Committee agreed to the
amendment, as modified, by voice vote.
Senator Voinovich's final amendment established a Federal
Bureau of Investigation Intelligence Career Service. As
modified, this amendment permits the FBI Director, in
consultation with the Director of the Office of Personnel
Management, to establish positions for intelligence analysts,
to prescribe standards and procedures for establishing and
classifying such positions, and set pay for such analysts above
existing pay scales. The Committee agreed to this amendment, as
modified, by voice vote.
The Committee ordered that the bill, as amended, be
reported by a vote of 14-0.
IV. Committee Hearings
On July 30, 2004, the Committee held a hearing entitled,
``Making America Safer: Examining the Recommendations of the 9/
11 Commisson''. Witnesses included: Thomas Kean, Chairman,
National Commission on Terrorist Attacks Upon the United
States; Lee Hamilton, Vice-Chairman, National Commission on
Terrorist Attacks Upon the United States.
The Commissioners explained and answered questions
regarding the 9/11 Commission's central intelligence reform
recommendations, including its proposals to establish a
National Intelligence Director, who would have authority over
all Intelligence Community elements, including authority over
personnel, security, and information technology, and to create
a National Counterterrorism Center that would serve as the
government's central knowledge bank on international terrorism
and, with personnel drawn from various agencies across the
government, would conduct joint intelligence and joint
operational planning. The Commissioners did not support
creating a domestic intelligence agency, but they noted that
the FBI needs a specialized and integrated national security
workforce.
On August 3, 2004, the Committee held a hearing entitled,
``Assessing America's Counterterrorism Capabilities''.
Witnesses included: John Brennan, Director, Terrorist Threat
Integration Center; John Pistole, Executive Assistant Director
for Counterterrorism and Counterintelligence, Federal Bureau of
Investigation; Lieutenant General Patrick Hughes, Assistant
Secretary for Information Analysis, Department of Homeland
Security; and Philip Mudd, Deputy Director, Counterterrorist
Center, Central Intelligence Agency; Philip Zelikow, Executive
Director, and Christopher Kojm, Deputy Executive Director, of
the National Commission on Terrorist Attacks Upon the United
States.
This hearing focused on the proposal to create a National
Counterterrorism Center. The first panel, consisting of key
officials involved in counterterrorism and homeland security
efforts, testified regarding current interagency efforts and
relationships in the war on terror, how those relationships
have changed since 9/11, and how the creation of a National
Counterterrrorism Center would impact their agencies and
functions. The second panel, consisting of the top staff
members of the 9/11 Commission, further explained the
Commission's proposal to create a National Counterterrorism
Center.
On August 16, 2004, the Committee held a hearing entitled,
``Reorganizing America's Intelligence Community: A View from
the Inside''. Witnesses included: William Webster,
JamesWoolsey; and Stansfield Turner. A written statement was submitted
by Robert Gates. Each of the witnesses was a former Director of Central
Intelligence. Mr. Webster also formerly served as the Director of the
Federal Bureau of Investigation.
These witnesses shared the benefits of their experiences as
Directors of Central Intelligence and offered their views on
the creation of a National Intelligence Director, particularly
with respect to the need for the NID to have enhanced
authorities with respect to budget and personnel.
On August 17, 2004, the Committee held a hearing entitled,
``Voicing a Need for Reform: The Families of 9/11''. Witnesses
included: Mary Fetchet, Founding Director, Voices of September
11th, Member, Family Steering Committee; Steven Push, Co-
Founder and Board Member, Families of September 11th; and
Kristen Breitweiser, Founder and Co-Chairperson, September 11th
Advocates, Member, Family Steering Committee.
All three family members testified to the critical need for
major reform of the Intelligence Community, calling on the
executive and legislative branches to act promptly. All three
witnesses strongly supported the creation of a NID and NCTC, as
recommended by the 9/11 Commission.
On August 26, 2004, the Committee held a closed hearing
entitled, ``Reorganizing the Intelligence Community: to What
Extent Should the National Intelligence Director Have Budget
Authority and the National Counterterrorism Center Play a Role
in Operational Planning?''. Witnesses included: Larry
Kindswater, Deputy Director of Central Intelligence for
Community Management, Central Intelligence Agency; Stephen
Cambone, Under Secretary of Defense for Intelligence, U.S.
Department of Defense; Arthur Cummings, Section Chief,
International Terrorism Operations Section I, Counterterrorism
Division, Federal Bureau of Investigation; Norton Schwartz,
Director for Operations, J-3, Joint Staff, U.S. Department of
Defense; and CIA Counterterrorism Specialist.
This hearing focused on budget and operational planning
issues.
On September 8, 2004, the Committee held a hearing
entitled, ``Building an Agile Intelligence Community to Fight
Terrorism and Emerging Threats''. Witnesses included: Robert
Mueller III, Director, Federal Bureau of Investigation; and
John McLaughlin, Acting Director of Central Intelligence,
Central Intelligence Agency.
This hearing focused on the need to build an agile and
flexible intelligence community that can rapidly respond to
emerging threats. As heads of two agencies with primary
responsibility for collecting intelligence domestically and
overseas, these witnesses provided the Committee with their
perspectives regarding the current state of the intelligence
community, improvements that have been made since 9/11 in areas
such as interagency cooperation and information sharing, and
how the creation of a National Intelligence Director and
National Counterterrorism Center can build upon that progress.
Director Mueller testified regarding the numerous improvements
made by the FBI since 9/11 in collecting, analyzing and
distributing intelligence, and he identified three principles
that should guide any attempt to reform the intelligence
community: (1) providing analysts transparency into sourcing,
(2) maintaining the operational chain of command, i.e., the NID
and the NCTC chief should not have operational authority over
the FBI or other agencies, and (3) the importance of protecting
civil liberties. Acting DCI McLaughlin emphasized the
importance of giving the NID real authority and direct access
to analysts and other experts, particularly at the CIA.
On September 13, 2004, the Committee held a hearing
entitled, ``Ensuring the U.S. Intelligence Community Supports
Homeland Defense and Departmental Needs''. Witnesses included:
Colin Powell, Secretary of State; and Tom Ridge, Secretary of
the Department of Homeland Security
This hearing focused on the needs of departmental consumers
of intelligence. Both Secretary Powell and Secretary Ridge
supported the creation of a strong National Intelligence
Director with strong budget, personnel and other authorities.
Both witnesses affirmed that a strong NID would improve the
quality of the intelligence they receive. Both witnesses also
supported the concept of a cabinet-level joint intelligence
community council. Both witnesses opposed the concept of dual-
hatting.
On September 14, 2004, the Committee's Subcommittee on
Oversight of Government Management, the Federal Workforce and
the District of Columbia, chaired by Senator Voinovich, held a
hearing entitled, ``9/11 Commission Human Capital
Recommendations: A Critical Element of Reform''. Witnesses
included: Fred Fielding, Commissioner, National Commission on
Terrorist Attacks upon the United States, Jamie Gorelick,
Commissioner, National Commission on Terrorist Attacks Upon the
United States; Mark Bullock, Assistant Director of
Administrative Services, Federal Bureau of Investigation, John
Turnicky, Special Assistant to the DCI for Security, Central
Intelligence Agency; Chris Mihm, Managing Director, Strategic
Issues, U.S. Government Accountability Office; Paul Light,
Senior Fellow, The Brookings Institution; Morgan Kinghorn,
President, National Academy of Public Administration; Doug
Wagoner, Chairman, Security Clearance Task Group, Information
Technology Association of America; and Max Stier, President,
Partnership for Public Service.
This hearing focused on personnel issues related to the
reform of the intelligence community recommended by the 9/11
Commission, including the need to streamline the presidential
appointments process, to improve the security clearance system,
to develop a specialized national security and intelligence
workforce at the FBI and to set personnel standards across the
intelligence community.
V. Section-by-Section Analysis
Section 1. Short Title; Table of Contents
Section 2. Definitions
Adds the National Intelligence Authority (NIA) to
the membership of the ``intelligence community.''
Defines ``national intelligence'' as intelligence
that pertains to the interests of more than one department or
agency, excluding counterintelligence or law enforcement
activities conducted by the FBI except as agreed between the
National Intelligence Director (NID) and the FBI Director.
Defines the ``National Intelligence Program'' to
include: (i) all national intelligence programs, projects, and
activities of the intelligence community; (ii) all programs,
projects and activities of the NIA, CIA, NSA, NGA, NRO, the DHS
Office of Information Analysis, and the FBI Office of
Intelligence, whether or not they pertain to national
intelligence; and (iii) any other program, project, or activity
relating to national intelligence unless the NID and head of
the department, agency, or element concerned determine
otherwise. Except as provided under (ii), the NIP excludes any
program, project, or activity of the military (including those
of the Defense Intelligence Agency not under the National
Foreign Intelligence Program) that acquire intelligence
principally to support tactical or joint military operations.
TITLE I--NATIONAL INTELLIGENCE AUTHORITY
Subtitle A--National Intelligence Authority
Section 101. National Intelligence Authority
Creates the National Intelligence Authority as an
independent establishment in the Executive Branch, composed of
the Office of the NID, the Inspector General of the NIA, the
Ombudsman of the NIA, the National Counterterrorism Center
(NCTC), national intelligence centers established by the NID,
and other entities established by law, the President, or the
NID.
Provides that the primary missions of the National
Intelligence Authority are: (1) to unify and strengthen the
efforts of the intelligence community; (2) to ensure that such
efforts are jointly organized around intelligence missions
rather than collection disciplines; (3) to provide for the
operation of the NCTC and national intelligence centers; (4) to
eliminate barriers that impede counterterrorism activities
between foreign intelligence activities abroad and
domestically, while ensuring the protection of civil liberties;
and (5) to establish clear responsibility and accountability
for counterterrorism and other national security intelligence
matters.
Provides that the National Intelligence Authority
shall have a seal.
Section 102. National Intelligence Director
The NID is nominated by the President and
confirmed by the Senate. The NID is prohibited from
simultaneously serving in any capacity in any other element of
the intelligence community.
The NID shall (1) serve as the head of the
intelligence community; (2) act as the President's principal
intelligence adviser; (3) serve as the head of the National
Intelligence Authority; and (4) direct and oversee the National
Intelligence Program.
Subtitle B--Responsibilities and Authorities of the National
Intelligence Director
Section 111. Provision of National Intelligence
The NID is responsible for providing timely and
objective national intelligence to: (1) the President; (2) the
heads of other executive departments and agencies; (3) the
Chairman of the Joint Chiefs of Staff and senior military
commanders; (4) the U.S. House and Senate, and the committees
thereof; and (5) such other persons or entities as the
President shall direct.
Section 112. Responsibilities of National Intelligence Director
The NID shall determine the annual budget for
intelligence and intelligence-related activities by: (1)
providing to the heads of the departments containing agencies
or elements within the intelligence community and that have one
or more programs, projects, or activities within the NIP, and
to the heads of such agencies and elements, guidance for
development of the NIP budget pertaining to such agencies or
elements; (2) developing and presenting to the President an
annual budget for the NIP after consultation with the heads of
those agencies or elements, and the heads of their respective
departments, (3) providing budget guidance to each element of
the intelligence community that does not have one or more
program, project, or activity within the NIP regarding the
intelligence activities of such element; and (4) participating
in the development by the Secretary of Defense of the annual
budgets for the military intelligence programs, projects, and
activities not included in the NIP.
The NID shall manage and oversee the National
Intelligence Program, including by executing funds,
reprogramming funds, and transferring funds and personnel under
the NIP.
The NID shall establish requirements and
priorities for collection, analysis, and dissemination of
national intelligence by elements of the intelligence
community. The NID shall also establish collection and analysis
requirements for the intelligence community, determine
collection and analysis priorities, issue and manage collection
and analysis tasking, and resolve conflicts in the tasking of
elements of the intelligence community within the National
Intelligence Program, except as otherwise agreed with the
Secretary of Defense pursuant to the direction of the
President. Furthermore, the NID shall provide advisory tasking
on the collection of intelligence to elements of the government
not part of the intelligence community.
The NID shall oversee and manage the NCTC, and
establish, oversee, and manage National Intelligence Centers.
The NID shall also establish requirements and
priorities for collection of intelligence under the Foreign
Intelligence Surveillance Act (FISA) and assist the Attorney
General in ensuring that intelligence derived from FISA
operations is disseminated, but the NID has no authority to
direct or undertake FISA operations except as otherwise
authorized by statute or Executive order.
In consultation with the heads of the other
elements of the intelligence community, and the heads of their
respective departments, the NID shall develop personnel
policies and programs for the intelligence community that: (1)
encourages and facilitates assignments and details to the NCTC
and national intelligence centers, and between other elements
of the intelligence community; (2) sets standards for
education, training, and career development; (3) encourages the
recruitment and retention of high-quality individuals; (4)
ensures that intelligence personnel are sufficiently diverse;
(5) makes service in more than one element of the intelligence
community a condition for promotion; (6) effectively manages
intelligence community personnel who are trained in community-
wide matters; (7) provides for effective management of human
capital within the intelligence community; (8) is consistent
with public employment principles of merit and fitness; and (9)
includes the enhancements required under section 114.
The NID shall promote and evaluate the utility of
national intelligence to consumers in the U.S. Government.
The NID shall ensure that appropriate officials
have access to a variety of intelligence assessments and
analytical views.
The NID shall: (1) protect intelligence sources
and methods; (2) establish reporting guidelines that maximize
the dissemination of information while protecting sources and
methods; and (3) establish requirements and procedures for: (a)
the classification of information; (b) access to classified
information; and (c) dissemination of classified information.
The President acting through the NID shall establish and
implement uniform standards and procedures for granting access
to sensitive compartmented information.
The NID shall develop, in consultation with the
heads of relevant departments and agencies, an integrated
communications network that provides interoperable
communications capabilities within the intelligence community
and with other entities or persons the NID determines
appropriate.
The NID shall establish standards for information
technology and communications for the intelligence community.
The NID shall ensure that the intelligence
community makes efficient and effective use of open-source
information and analysis.
The NID shall ensure compliance by the
intelligence community with all laws, regulations, and
policies, including those applicable to protecting civil rights
and civil liberties.
The NID shall eliminate waste and unnecessary
duplication within the intelligence community and perform other
functions as directed by the President.
The NID shall, in consultation with the heads of
relevant departments and agencies, direct and coordinate the
performance by the elements of intelligence community within
the NIP of such services that are of common concern which the
NID determines can be more efficiently performed in a
consolidated manner, including research and development.
The NID may prescribe regulations relating to the
discharge and enforcement of the responsibilities under this
section.
The NID shall perform such other functions as the
President may direct.
Section 113. Authorities of National Intelligence Director
The NID shall have access to all national
intelligence, unless otherwise directed by the President.
The NID shall determine the annual budget for
intelligence and intelligence-related activities by: (1)
providing to the heads of the departments containing agencies
or elements within the intelligence community and that have one
or more programs, projects, or activities within the NIP, and
to the heads of such agencies and elements, guidance for
development of the NIP budget pertaining to such agencies or
elements; (2) developing and presenting to the President an
annual budget for the NIP after consultation with the heads of
agencies or elements, and the heads of their respective
departments, including, in furtherance of such budget, the
review, modification, and approval of budgets of the agencies
or elements of the intelligence community with one or more
programs, projects, or activities within the NIP utilizing the
budget authorities in subsection (c)(1); (3) providing guidance
on the development of annual budgets for each element of the
intelligence community that does not have any program, project,
or activity within the NIP utilizing the budget authorities in
subsection (c)(2); (4) participating in the development by the
Secretary of Defense of the annual budget for military
intelligence programs and activities outside the NIP; (4)
receiving the appropriations for the NIP as specified in
subsection (d) and allotting and allocating funds to agencies
and elements of the intelligence community; and (5) managing
and overseeing the execution by the agencies or elements of the
intelligence community, and, if necessary, the modification of
the annual budget for the NIP, including directing the
reprogramming and transfer of funds, and the transfer of
personnel, among and between elements of the intelligence
community within the NIP utilizing the authorities in
subsections (f) and (g).
In developing the annual National Intelligence
Program budget, the NID shall coordinate, prepare, and present
to the President an annual budget for elements of the
intelligence community that are within the National
Intelligence Program, in consultation with the heads of such
elements. The NID shall approve budget submissions from such
elements, and may require modifications to meet NID priorities,
before approving such budgets for submission to the President.
Regarding elements of the intelligence community
not within the National Intelligence Program, the NID shall
provide guidance for the development of their budgets. The
heads of such components, and the heads of their respective
departments, shall coordinate closely with the NID before
submitting their budgets to the President.
Any amounts appropriated or otherwise made
available to the National Intelligence Program shall be
appropriated to the NIA and under the NID's direct
jurisdiction. The NID shall manage and oversee the execution of
National Intelligence Program funds by any intelligence
community element which receives such funds.
The Secretary of the Treasury shall, in
consultation with the NID, establish accounts for the funds
under the jurisdiction of the NID.
National Intelligence Program funds may not be
reprogrammed or transferred by an element of the intelligence
community without NID approval. Department heads shall consult
with the NID before reprogramming non-National Intelligence
Program funds of departmental entities within the intelligence
community. The NID shall consult with the affected department
head prior to reprogramming funds of an element of the
intelligence community within the NIP. The NID shall consult
with the appropriate committees of Congress regarding
modifications of existing procedures to expedite the
reprogramming of funds within the NIP, including procedures for
notifying Congress of department or agency objections to a
reprogramming by the NID.
With the approval of the Office of Management and
Budget and after consultation with the affected department or
agency, the NID may (1) transfer or reprogram funds from one
intelligence community element funded by the National
Intelligence Program to another; (2) review, and approve or
disapprove, any proposal to transfer or reprogram funds from
non-NIP appropriations to NIP appropriations; (3) in accordance
with procedures developed by the NID, transfer personnel of an
element of the intelligence community funded by the NIP to
another element of the intelligence community; and (4) in
accordance with procedures developed by the NID and the heads
of the departments and agencies concerned, transfer personnel
of an element of the intelligence community funded outside the
NIP to another element of the intelligence community. The NID
may only make such a transfer if the funds or personnel are
being transferred to a higher priority, the funds are not being
transferred to the NID Reserve for Contingencies, and the
transfer does not exceed applicable ceilings established in
law. The NID shall notify the Appropriations Committees of the
House and theSenate, Senate Select Committee on Intelligence,
and the House Permanent Select Committee on Intelligence of all
transfers. In addition, the NID shall notify the Armed Services
Committees of transfers involving Defense Department personnel; the
Judiciary Committees of transfers involving FBI personnel; and the
Senate Committee on Governmental Affairs and the House Committee on
Homeland Security of transfers involving Department of Homeland
Security personnel.
The NID shall establish information-technology
standards for the intelligence community, develop an integrated
information technology network, maintain an inventory of
critical information technology and eliminate duplication,
establish contingency plans regarding information technology,
and shall take necessary actions to ensure information-sharing
among the elements of the intelligence community.
The NID shall oversee and direct the Director of
the Central Intelligence Agency in coordinating the
relationships between elements of the intelligence community
and their counterparts in foreign governments on all matters
relating to national security intelligence or involving
intelligence acquired through clandestine means.
The NID shall establish and maintain within the
intelligence community an effective and efficient open source
information capability.
The head of each element of the intelligence
community shall promptly provide the NID such information as
the NID may request to facilitate the NID's authorities and
responsibilities, except as otherwise directed by the
President.
Section 114. Enhanced Personnel Management
The NID shall prescribe regulations to provide
incentives (e.g., bonuses) for intelligence community personnel
to serve on the staffs of the NCTC, national intelligence
centers, and other community-management positions.
The NID shall ensure that intelligence personnel
who are assigned or detailed for service under the NID shall be
promoted at rates equivalent to or better than personnel who
did not serve in such capacities.
The NID shall prescribe mechanisms to facilitate
the personnel rotation across the intelligence community in
order to facilitate the widest possible understanding of the
variety of intelligence requirements, methods, and disciplines.
Such mechanisms may include: (1) establishing a special
occupational category for intelligence personnel who wish to
serve in more than one element of the intelligence community;
(2) providing awards for such service; and (3) establishing
requirements for education, training, service, and evaluation
for such service. It is the sense of Congress that such
mechanisms should seek to duplicate joint officer management
policies established by the Goldwater-Nichols Department of
Defense Reorganization Act of 1986.
Section 115. Security Clearances
Requires the President, in consultation with the
NID and others, to establish, and ensure the implementation of,
uniform standards and procedures for access to classified
information for both employees and contract personnel and to
ensure reciprocity among executive branch agencies for
clearances. Under (b), the section requires the President to
designate a single federal agency to be responsible for
providing and maintaining clearances. The agency selected would
be tasked with establishing and maintaining a database of all
clearances.
Section 116. National Intelligence Reserve Corps
The NID may provide for the establishment and
training of a National Intelligence Reserve Corps for the
temporary reemployment on a voluntary basis of former
intelligence community employees during times of emergency.
Section 117. Appointment and Termination of Certain Officials
Responsible for Intelligence-Related Activities
The NID shall recommend to the President an
individual to fill a vacancy in the position of CIA Director.
The NID shall obtain the concurrence of the
Secretary of Defense before recommending to the President an
individual to fill a vacancy in the position of Director of the
National Security Agency; Director of the National
Reconnaissance Office; or Director of the National Geospatial-
Intelligence Agency. If the Defense Secretary does not concur
in the recommendation, the NID may still make the
recommendation, but must include with the recommendation a
statement that the Secretary does not concur.
The head of the appropriate department or agency
shall obtain the concurrence of the NID before appointing or
recommending to the President for appointment the Under
Secretary of Defense for Intelligence; the Director of the
Defense Intelligence Agency; the Assistant Secretary of
Homeland Security for Information Analysis; and the Executive
Assistant Director for Intelligence of the FBI. If the NID does
not concur, the secretary or agency head may appoint or
recommend the official for appointment, but must notify the
President of the lack of concurrence.
The NID may recommend any official covered by this
section for termination to the President or head of the
appropriate department or agency. The NID must seek the
concurrence of the head of the affected department or agency.
If there is no concurrence, the NID may still make the
recommendation, but must notify the President of the lack of
concurrence.
Section 118. Reserve for Contingencies of the National Intelligence
Director
This section establishes a Reserve for
Contingencies of the NID consisting of amounts appropriated to,
transferred to, or deposited in the Reserve to be used for
purposes as are provided for by law. All unobligated balances
of the CIA Reserve for Contingencies shall be transferred to
this fund on the date of enactment.
Subtitle C--Office of the National Intelligence Director
Section 121. Office of the National Intelligence Director
There is within the National Intelligence
Authority, an Office of the National Intelligence Director with
the function of helping the NID in carrying out the duties and
responsibilities of the NID. The Office of the NID shall have a
professional staff that includes transferred elements of the
Community Management Staff.
The Office of the NID consists of the Principal
Deputy NID; any other Deputy NID appointed under Sec. 122(b);
the National Intelligence Council; the General Counsel of the
NIA; the Intelligence Comptroller; the Office for Civil Rights
and Civil Liberties of the NIA; the Privacy Officer of the NIA;
the Chief Information Officer of the NIA; the Chief Human
Capital Officer of the NIA; the Chief Financial Officer of the
NIA; the National Counterintelligence Executive; and such other
offices and officials as may be established by law or the NID
may establish or designate. The National Intelligence Council
and the National Counterintelligence Executive currently exist
and are being transferred to the Office of the NID.
As of October 1, 2006 the Office of the NID may
not co-locate with any other element of the intelligence
community.
Section 122. Deputy National Intelligence Directors
There is a Principal Deputy NID recommended by the
NID and appointed by the President with the advice and consent
of the Senate, who may not serve in any other capacity in any
other element of the intelligence community. This official
shall assist the NID in carrying out the duties and
responsibilities of the NID, and shall act for the NID during
an absence or vacancy.
There shall be not more than four Deputy NIDs, all
of whom shall be appointed by the President. The Deputy NIDs
shall be recommended by the NID to the President and shall have
such duties, responsibilities, and authorities as assigned by
the NID or as specified by law.
Section 123. National Intelligence Council
The National Intelligence Council shall be
composed of senior intelligence community analysts and
substantive experts from the public and private sector who
shall be appointed by, report to, and serve at the pleasure of
the NID.
The Council shall produce national intelligence
estimates, including alternative views held by elements of the
intelligence community; evaluate community-wide collection and
production of intelligence; and otherwise assist the NID in
carrying out the NID's responsibilities under Sec. 111.
The NID shall ensure that each national
intelligence estimate (1) states separately and distinguishes
between the intelligence underlying such estimate and the
assumptions and judgments of analysts with respect to such
intelligence and estimate; (2) describes the quality and
reliability of the intelligence underlying such estimate; (3)
presents and explains alternative conclusions, if any, with
respect to the intelligence underlying such estimate and such
estimate; and (4) characterizes the uncertainties, if any, and
the confidence in such estimate.
The Council has the authority to contract. In
addition, its staff shall be provided by the NID and support
shall be provided as appropriate by the heads of the elements
of the intelligence community.
Section 124. General Counsel of the National Intelligence Authority
The General Counsel of the NIA shall be appointed
by the President from civilian life with the advice and consent
of the Senate. This official is the chief legal officer of the
NIA and shall perform such functions as the NID shall
prescribe. An official serving in this position may not also
serve as General Counsel of any other department, agency, or
element of the United States government.
Section 125. Intelligence Comptroller
The NID shall appoint an Intelligence Comptroller
from civilian life who shall report directly to the NID. This
official shall assist the NID in preparing and executing the
budget of the NIP; assist the NID in participating in the
Defense Secretary's annual budget for military intelligence and
activities outside of theNIP; provide unfettered access to the
NID to financial information under the NIP; and perform other duties as
may be prescribed by the NID or specified by law.
Section 126. Officer for Civil Rights and Civil Liberties of the
National Intelligence Authority
The President shall appoint an Officer for Civil
Rights and Civil Liberties of the National Intelligence
Authority who shall report directly to the NID.
This official shall assist the NID in ensuring
that the protection of civil rights and civil liberties is
appropriately incorporated in the policies and procedures
developed for and implemented by the NIA, those regarding the
relationships among the elements of the intelligence community
within the NIP, and those regarding the relationships between
the elements of the intelligence community within the NIP and
the other elements of the intelligence community. This official
shall also oversee compliance by the NIA with the Constitution
and all laws and rules relating to civil rights and civil
liberties regarding the same.
This official shall also review, investigate, and
assess complaints and other information regarding possible
abuses of civil rights or civil liberties in the administration
of the NIA and in relationships among the elements of the
intelligence community within the NIP or between those elements
and non-NIP elements, unless the NIA's IG determines that the
IG can better review the matter.
This official shall coordinate with the NIA
Privacy Officer and perform such other duties and may be
prescribed the NID or specified by law.
Section 127. Privacy Officer of the National Intelligence Authority
The NID shall appoint a Privacy Officer of the
NIA. This official shall have primary responsibility for the
privacy policy of the NIA and shall coordinate with the NIA
Officer for Civil Rights and Civil Liberties.
Section 128. Chief Information Officer of the National Intelligence
Authority
The NID shall appoint a Chief Information Officer
of the NIA. The NIA CIO shall assist the NID in developing and
implementing an integrated communications network that provides
interoperable communications capabilities among all elements of
the intelligence community.
Section 129. Chief Human Capital Officer of the National Intelligence
Authority
The NID shall appoint a Chief Human Capital
Officer to assist the NID with the development and
implementation of workforce management strategies for the
intelligence community.
Section 130. Chief Financial Officer
There is a Chief Financial Office of the National
Intelligence Authority, who shall be designated by the
President in consultation with the NID.
Section 131. National Counterintelligence Executive
This position is moved to the Office of the
National Intelligence Director. The National
Counterintelligence Executive serves as the head of national
counterintelligence for the United States government; chairs
the National Counterintelligence Policy Board; and heads the
Office of the National Counterintelligence Executive (also
moved to the Office of the NID).
Subtitle D--Additional Elements of National Intelligence Authority
Section 141. Inspector General of the National Intelligence Authority
This section is structured similarly to 50 U.S.C.
Sec. 403q, which creates the CIA's Inspector General. This
section gives the Inspector General of the NIA authorities over
the NIA that largely track the CIA Inspector General's
authorities over the CIA. The significant difference between
the two is that this section gives the NIA Inspector General
the authority to initiate and conduct independent
investigations, inspections, and audits relating to the
relationships among the elements of the intelligence community
within the National Intelligence Program, and between those
elements and the other elements of the intelligence community.
By contrast, the CIA Inspector General's authorities do not
extend to the relationships between elements of the
intelligence community; instead, they focus on the CIA.
Section 141(a) establishes an Office of the
Inspector General within the NIA.
Section 141(b) establishes the purposes of the
OIG, which include creating an objective and effective office
to conduct independent investigations, inspections, and audits;
providing a means to keep the NID fully informed of problems
and deficiencies; and ensuring that the congressional
intelligence committees are kept informed.
Section 141(c) provides that the head of the OIG
shall be the Inspector General of the NIA and that the
Inspector General shall be appointed by the President with the
advice and consent of the Senate. This section also requires
that the IG be selected without regard to political affiliation
and solely on the basis of integrity, compliance with the
security standards, and prior experience in the field of
intelligence or national security as well as on a demonstrated
ability in accounting, financial analysis, law, management
analysis, public administration, or auditing. This section also
requires that the IG report directly to the NID. This section
states that the IG may only be removed by the President and
that the President must submit the reasons for such removal to
the congressional intelligence committees.
Section 141(d) establishes the duties and
responsibilities of the IG including providing policy direction
for, and to plan, conduct, and coordinate independently, the
investigations, inspections, and audits relating to the
programs and operations of the NIA; keeping the NID informed of
violations of law, regulations, civil liberties, privacy,
fraud, and other deficiencies; taking due regard for the
protection of intelligence sources and methods in the
preparation of reports; and complying with generally accepted
government auditing standards.
Section 141(e) allows the NID to prohibit the IG
from initiating or carrying out an investigation, inspection,
or audit if the NID determines it is vital to national
security, but requires the NID to submit to the intelligence
committees the reasons for the prohibition and allows the IG to
submit any relevant comments to the intelligence committees.
Section 141(f) requires that the IG have direct
and prompt access to the NID; any employee or contractor; and
any other element of the intelligence community within the
National Intelligence Program. This section also requires that
the IG have access to all relevant records, reports, audits,
reviews, and other documents. The IG is also authorized to
receive and investigate complaints or information from any
person concerning violations of law, rules, regulations,
mismanagement, waste, abuse, and substantial danger to public
health and safety. Requires the IG not to disclose the identity
of such an employee, without consent, and restricts reprisals
against an employee for making a complaint to the IG. This
section provides the IG with subpoena authority and establishes
guidelines for the use of the authority.
Section 141(g) requires that the IG be provided
appropriate office space and supplies; allows the IG to appoint
and employ staff; and allows the IG to request information and
assistance from any department, agency, or other element of the
government, with the concurrence of the NID.
Section 141(h) establishes a semi-annual reporting
requirement by the IG to the NID, who in turn would be required
to transmit the reports to the congressional intelligence
committees together with any comments of the NID. The section
also requires the IG to immediately report to the NID any
serious or flagrant problems, abuses, or deficiencies and
requires the NID to transmit those reports to the intelligence
committees. The section also establishes additional reporting
requirements in certain circumstances, such as when a matter is
referred to Justice because of possible criminal conduct, an
investigation should focus on a person who is Senate-confirmed,
and when the IG is unable to resolve differences with the NID.
The section also establishes procedures employees may follow
prior to making any reports directly to the Congress.
Section 141(i) requires the NID to establish a
separate budget account for the OIG.
Section 142. Ombudsman of the National Intelligence Authority
This section creates an Ombudsman in the National
Intelligence Authority, appointed by the NID, who will have the
authority to: (i) counsel, arbitrate, offer recommendations on,
and initiate investigations into problems of politicization,
biased reporting, or the lack of objective analysis within the
NIA or any element of the National Intelligence Program; (ii)
monitor the effectiveness of measures taken in response to such
problems; and (iii) conduct reviews of the analytic products of
the NIA or any element of the intelligence community within the
NIP, or of any analysis of national intelligence by any element
of the intelligence community. This office is patterned after
the CIA Ombudsman.
There shall be an Analytic Review Unit within the
Office of the Ombudsman which shall assist in the performance
of the duties of the Ombudsman, including by conducting
detailed evaluations of intelligence by the National
Intelligence Council, the elements of the intelligence
community within the NIP, and, to the extent involving the
analysis of national intelligence, other elements of the
intelligence community.
The Ombudsman shall, unless otherwise directed by
the President, have access to all analytic products, field
reports, and raw intelligence of any element of the
intelligence community and to any reports or other material of
an Inspector General that might be pertinent.
This official will provide the NID and the
congressional intelligence committees with an annual report
that includes an assessment of the current level of
politicization, biased reporting, or the lack of objective
analysis within the NIA, any element of the intelligence
community within the NIP, or any analysis ofnational
intelligence by an element of the intelligence community. The report
shall also include suggestions for remedial measures and the
effectiveness of remedial measures taken.
In addition to carrying out activities under this
section, the Ombudsman of the NIA may refer serious cases of
misconduct related to politicization of intelligence
information, biased reporting, or lack of objective analysis
within the intelligence community to the Inspector General of
the NIA for investigation.
Section 143. National Counterterrorism Center
The NCTC is created within the NIA and shall be
headed by a Director appointed with the advice and consent of
the Senate, who may not simultaneously serve in any other
capacity in the intelligence community. The primary missions of
the NCTC shall be to unify strategy for civilian and military
counterterrorism efforts, integrate counterterrorism
intelligence activities both inside and outside of the United
States, and ensure that the collection of counterterrorism
intelligence and the conduct of counterintelligence operations
are informed by the analysis of all-source information. Another
primary mission of the NCTC shall be to develop interagency
counterterrorism plans that include the mission, objectives to
be achieved, course of action, coordination of agency
operational activities, recommendations for operational plans,
and assignment of departmental or agency responsibilities.
The NCTC Director reports to the NID on the budget
and programs of the NCTC and the activities of the NCTC
Directorate of Intelligence. The Director of the NCTC reports
to the President and the NID on the planning and progress of
joint counterterrorism operations.
At the direction of the President, the NSC, and
the NID, the Director of the NCTC shall: (1) serve as the
principal adviser to the President on joint counterterrorism
operations; (2) provide unified strategic direction for
civilian and military counterterrorism efforts and for the
effective integration and deconfliction of counterterrorism and
intelligence and operations across agency boundaries, inside
and outside of the United States; (3) advise the President on
the extent to which agency and departmental counterterrorism
program recommendations and budget proposals conform to
priorities established by the President and the NSC; (4) concur
in, or advise the President on, the selection of personnel to
head operating entities specified in (f) with principal
missions relating to counterterrorism; and (5) perform such
other duties as the NID may prescribe.
The NCTC Director has the right to concur in the
appointment, or in the recommendation to the President (as the
case may be), of the Director of the CIA's Counterterrorism
Center; the Assistant Director of the FBI's Counterterrorism
Division; the State Department's Coordinator for
Counterterrorism; and the heads of other entities so designated
that have principle missions relating to counterterrorism. If
the Department head making the appointment or recommendation
does not accept the NCTC Director's recommendation, the
appointment or recommendation may still go forward, but the
NCTC Director's objection must be passed along to the
President.
The NCTC shall have a Directorate of Intelligence,
which will include the Terrorist Threat Integration Center
(transferred to the DI under Sec. 323). The Directorate shall
have primary responsibility for analysis of terrorism and
terrorist organizations for all sources, whether collected
inside or outside the United States. The Directorate shall be
the primary repository for all-source information on suspected
terrorists, their organizations, and their capabilities;
propose intelligence collection requirements for action by
elements of the intelligence community inside and outside the
United States; have primary responsibility for net assessments
and warnings about terrorist threats, which assessments and
warnings shall be based on a comparison of terrorist intentions
and capabilities with assessed national vulnerabilities and
countermeasures; and perform such other duties and functions as
the NCTC Director may prescribe.
The NCTC shall have a Directorate of Planning with
the primary responsibility for developing interagency
counterterrorism plans. The Directorate shall provide guidance
and develop strategy and interagency plans based on policy
objectives and priorities established by the NSC; develop
interagency plans utilizing input from personnel in other
departments and agencies with expertise; assign
responsibilities for counterterrorism operations to departments
and agencies; monitor the implementation of operations so
assigned and update interagency plans as necessary; report to
the President and the NID on the compliance with such plans;
and perform such other duties and functions as the NCTC
Director may prescribe.
The Directorate of Planning may not direct the
execution of operations that it assigns.
The NID may appoint deputy directors for the NCTC
as appropriate. In order to provide a professional staff for
the NCTC, the NID may establish positions in the excepted
service as appropriate. The NID shall ensure that the
analytical staff of the NCTC is comprised of experts from the
intelligence community and elsewhere as appropriate. In order
to do so, the NID shall specify the transfers, assignments, and
details of personnel funded within the NIP; for personnel not
funded within the NIP, the NID shall request such transfers,
assignments, and details from the relevant department head, who
shall, to the extent practicable, approve the request. This
staff will be under the authority, direction, and control of
the NCTC Director.
The NID shall ensure that the NCTC staff has
access to all relevant databases maintained by elements of the
intelligence community.
Other agencies shall support and assist the NCTC,
including by implementation of plans developed by the NCTC. If
there is a disagreement on the implementation of such a plan
between the NCTC Director and the head of an affected
department or agency, then the NCTC may either accede to the
head of the department or agency or notify the President of the
necessity of resolving the disagreement.
Section 144. National Intelligence Centers
The NID may establish within the NIA one or more
centers to address intelligence priorities established by the
NSC. Each center shall be assigned an area of intelligence
responsibility.
The NID shall assign lead responsibility for
administrative support for each center to an element of the
intelligence community. The NID shall determine the structure
and size of each center and shall notify Congress before the
establishment of a center.
Each center shall be headed by a Director
appointed by the NID, who shall serve as the principal advisor
to the NID on intelligence matters within the area of
intelligence responsibility assigned to that center. The
Director shall also manage the operations of the center;
coordinate administrative support for the center; submit budget
and personnel requests for the center to the NID; seek such
assistance as necessary and needed to fulfill the mission of
the center; and advise the NID of the center's information
technology, personnel, and other requirements.
Each center shall, in its area of responsibility,
have primary responsibility for providing all-source analysis
of intelligence; have primary responsibility for identifying
and proposing to the NID intelligence collection and analysis
requirements; have primary responsibility for net assessments
and warnings; ensure that appropriate officials have access to
a variety of intelligence assessments and analytical views; and
perform such other duties as the NID shall specify.
The NID shall ensure that the centers and other
elements of the intelligence community engage in appropriate
information sharing to facilitate the activities of the
centers. The Directors of the centers shall report to the NID
regarding their activities and coordinate with the Principal
Deputy NID regarding such activities.
In order to provide a professional staff for a
center, the NID may establish positions in the excepted service
as appropriate. The NID shall specify the transfers,
assignments, and details of personnel funded within the NIP;
for personnel not funded within the NIP, the NID shall request
such transfers, assignments, and details from the relevant
department head, who shall, to the extent practicable, approve
the request. This staff will be under the authority, direction,
and control of the Director of the center.
The NID may terminate a center if the NID
determines that the center is no longer required to meet an
intelligence priority established by the NSC. The NID must
notify Congress before carrying out such termination.
Subtitle E--Education and Training of Intelligence Community Personnel
Section 151. Framework for Cross-Disciplinary Education and Training
This section requires the NID to establish a
framework that brings together the educational components of
the intelligence community to promote a more effective and
productive intelligence community through joint and cross-
disciplinary education and joint training.
Section 152. Intelligence Community Scholarship Program
This section requires the NID to develop a
scholarship program under which intelligence community agencies
would provide college scholarships to students in exchange for
future service at the agency. The provision reserves 10 percent
of the scholarships for intelligence community employees as an
additional means for training.
Subtitle F--Additional Authorities of National Intelligence Authority
Section 161. Use of Appropriated Funds
If specifically authorized to dispose of real
property, the NID shall exercise such authority in compliance
with subchapter IV of chapter 5 of title 40, United States
Code; the NID shall deposit proceeds from such disposal in the
Treasury. Gifts or donations of services or property of or for
the NIA shall only be accepted if permitted by an
appropriations act.
Section 162. Acquisitions and Fiscal Authorities
This section provides that the NID shall have
acquisition authority similar to that of the Director of
Central Intelligence, as head of the CIA. It also provides that
the NID shall have milestone decision authority for
acquisitions of major systems funded by the NIP and requires
that the NID establish a major system acquisition management
framework similar to that utilized by DOD for defense
acquisition programs. This provides the NID with management
authority over acquisition programs funded by the NIA even if
those programs are conducted by other agencies such as DOD.
Section 163. Personnel Matters
This section grants the NID the same personnel
authorities over NIA employees that the DCI has over CIA
personnel. The provision makes clear that employees and
applicants for employment of the NIA have the same rights and
protections as CIA employees.
Section 164. Ethics Matters.
This section makes conforming amendments to the
Ethics in Government Act and other for the NIA.
TITLE II--OTHER IMPROVEMENTS OF INTELLIGENCE ACTIVITIES
Subtitle A--Improvements of Intelligence Activities
Section 201. Availability to Public of Certain Intelligence Funding
Information
This section requires the President and Congress
to disclose to the public the top line budget authorization and
appropriation figures for the National Intelligence Program.
This section also directs the NID to study the feasibility of
disclosing such aggregate information for each element of the
intelligence community and to submit a report to Congress on
the results within 180 days.
Section 202. Merger of Homeland Security Council Into National Security
Council
This section merges the Homeland Security Council
into the National Security Council.
Section 203. Joint Intelligence Community Council
This section establishes the Joint Intelligence
Community Council, which consists of the NID (who shall chair
the Council), the Secretary of State, the Secretary of the
Treasury, the Secretary of Defense, the Attorney General, the
Secretary of Energy, the Secretary of Homeland Security, and
such other officers as the President may designate. The JICC
shall meet upon the request of the NID.
The JICC shall assist the NID in developing and
implementing a joint, unified national intelligence effort to
protect national security by (i) advising the NID on
establishing requirements, developing budgets, financial
management, and monitoring and evaluating the intelligence
community's performance; and (ii) ensuring the timely execution
of programs, policies, and directives established or developed
by the NID.
Section 204. Improvement of Intelligence Capabilities of the Federal
Bureau of Investigation
Section 204 of the bill acknowledges that the
National Commission on Terrorist Attacks Upon the United States
stated in its final report that, under Director Robert Mueller,
the FBI has made significant progress in improving its
intelligence capabilities. The Commission also urged the FBI to
fully institutionalize the shift to a preventative
counterterrorism posture. In order to continue to improve the
intelligence capabilities of the Bureau, the FBI is required to
develop and maintain a national intelligence workforce
consisting of agents, analysts, linguists, and surveillance
specialists who are recruited, trained, and rewarded in a
manner consistent with the intelligence mission of the Bureau.
This section of the bill also requires agents to be trained in
criminal justice and national intelligence matters, and
requires that agents be given the opportunity to be assigned
intelligence responsibilities early in their career. In
addition, the FBI Director shall establish career positions in
intelligence matters for agents and analysts, and afford agents
and analysts of the Bureau the opportunity to work in the
career specialty selected by such agents and analysts over
their entire career with the Bureau. The FBI Director shall
carry out a program to enhance the capacity of the FBI to
recruit and retain individuals with skills relevant to the
intelligence mission of the Bureau. The Bureau should also
afford its analysts career opportunities commensurate with
those afforded analysts in other intelligence community
entities.
This section also directs the FBI to ensure that
each operational intelligence supervisor be a certified
intelligence officer. The Director shall ensure that the
successful discharge of advanced training courses, and of one
or more assignments to another element of the intelligence
community, is a precondition to advancement to higher level
intelligence assignments in the Bureau. FieldIntelligence Group
(FIG) supervisors must report directly to a senior manager responsible
for intelligence matters, and must ensure the integration of analysts,
agents, linguists, and surveillance personnel in the field.
The Bureau is also directed to expand its secure
facilities to ensure the successful discharge by the field
intelligence components of the national security and criminal
intelligence missions of the FBI.
The bill directs the FBI to modify its budget
structure, in consultation with the Director of the Office of
Management and Budget, according to the four principal missions
of the Bureau: (1) Intelligence; (2) Counterterrorism and
counterintelligence; (3) Criminal Enterprises/Federal Crimes;
(4) Criminal justice services.
Not later than 180 days after the enactment of
this Act, the FBI is required to submit to Congress a report
detailing the Bureau's progress in carrying out the
requirements of Section 204. The Bureau is also required to
include in each annual program review of the FBI submitted to
Congress a report on the progress made by each field office in
implementing national program priorities. Not later than 180
days after the enactment of this Act, and annually thereafter,
the FBI shall submit a report to Congress assessing the
qualifications, status, and roles of FBI analysts.
Additionally, not later than 180 days after the enactment of
this act, and annually thereafter, the FBI shall submit a
report to Congress detailing the Bureau's progress in
implementing information-sharing principles.
Section 205. Federal Bureau of Investigation Intelligence Career
Service
Section 205 of the bill establishes an
intelligence career service for Federal Bureau of Investigation
analysts. The FBI Director, in consultation with the Director
of the Office of Personnel Management, may establish positions
for intelligence analysts, without regard to chapter 51 of
title 5, United States Code. The Director shall prescribe
procedures for establishing and classifying such positions, and
may fix the rate of pay for such positions, without regard to
subchapter III of chapter 53 of title 5, United States Code, as
long as the rate of pay is not greater than the rate of pay
payable for level IV of the Executive Schedule.
The bill requires that any performance management
system established for intelligence analysts have at least one
level of performance above a retention standard.
Not less than sixty days before the date of
implementation of authorities granted under this section, the
FBI Director shall submit an operating plan describing the
Director's intended use of the authorities to: (1) the
Committees on Appropriations of the Senate and the House of
Representatives; (2) the Committee on Governmental Affairs of
the Senate; (3) the Committee on Government Reform of the House
of Representatives; (4) the congressional intelligence
committees; and (5) the Committees on the Judiciary of the
Senate and the House of Representatives.
Also, no later than December 31, 2005, and
annually thereafter for four years, the FBI Director shall
submit an annual report of the use of the permanent authorities
provided under this section during the preceding fiscal year
to: (1) the Committees on Appropriations of the Senate and the
House of Representatives; (2) the Committee on Governmental
Affairs of the Senate; (3) the Committee on Government Reform
of the House of Representatives; (4) the congressional
intelligence committees; and (5) the Committees on the
Judiciary of the Senate and the House of Representatives.
Section 206. Information Sharing
Consistent with the 9/11 Commission Report and
reports issued by the Markle Foundation's Task Force on
National Security in the Information Age, the legislation
mandates that the President create an information network that
can be accessed, and to which contributions can be made, by
various, federal, state, tribal and local, and private sector
entities.
Sections 206(a) and (b) include definitions and
findings.
Section 206(c) requires the President to establish
a trusted information network and secure information sharing
environment (the ``Network'') to promote the sharing of
intelligence and homeland security information in a manner
consistent with national security and the protection of privacy
and civil liberties. The section outlines the required
attributes of the Network, including that it be decentralized
and allow information sharing horizontally across agencies,
vertically between levels of government and, as appropriate,
with the private sector; build on existing systems
capabilities; incorporate protections for privacy and civil
liberties; and, to enhance accountability and facilitate
oversight, employ authentication, access controls, audit
capabilities and other mechanisms.
Section 206(d) requires that within 90 days, that
the Director of OMB, in consultation with the Executive Council
established below, (1) submit to the President and Congress a
description of the technological, legal, and policy issues
presented by creation of the Network and how these will be
addressed; (2) establish electronic directory services to
assist in locating relevant people and information; and (3)
conduct a baseline review of current federal agency information
sharing capabilities.
Section 206(e) requires that, within 180 days, the
President (1) issue guidelines for acquiring, accessing,
sharing, and using terrorism information; (2) issue guidelines
to protect privacy and civil liberties in the development and
use of the Network; (3) require federal agencies to promote a
culture of information sharing through greater incentives and
reduced disincentives for information sharing.
Section 206(f) requires that, within 270 days, the
Director of OMB, in consultation with the Executive Council,
prepare and submit to the President and Congress an Enterprise
Architecture and Implementation plan. The plan is to include a
description of the functions, capabilities and resources of the
proposed Network; a delineation of the roles of the federal
agencies that are to participate in the development of the
Network; a description of the system design that will meet the
technological requirements to link and enhance existing
networks; an enterprise architecture; a description of how
privacy and civil liberties will be protected in the design and
implementation of the Network; a plan and time line for the
development and implementation of the Network; budgetary
requirements; and proposals for any legislation that the
Director of OMB believes to be necessary to implement the
Network.
Section 206(g) gives the Director of OMB the
responsibility, in consultation with the Executive Council, for
implementing and managing the Network; developing policies and
guidelines to foster the development and proper operation of
the Network; and assisting, monitoring and assessing the
implementation of the Network by individual departments and
agencies. It also requires that the Director, within 30 days,
appoint an official, with the equivalent of Deputy Director
rank, whose primary responsibility will be to carry out the
day-to-day duties of the OMB Director with respect to
information sharing.
Section 206(h) establishes an Executive Council on
Information Sharing. The Executive Council is to be chaired by
the Director of OMB and made up of key federal officials
(including officials from the NIA, DHS, DoD, DOJ, the State
Department) and state, local, and tribal officials, and
individuals from private or nonprofit entities that own or
operate critical infrastructure, to be appointed by the
President. The Council is to assist the Director of OMB in his
responsibilities with respect to the Network; ensure that there
is coordination among Network participants; review ongoing
policy, legal and technology issues; and establish a dispute
resolution process to resolve disagreements among agencies
about whether particular information is to be shared and in
what manner.
Section 206(i) establishes an Advisory Board on
Information Sharing. The Advisory Board is to be made up of no
more than 15 members with significant experience or expertise
in policy, technical and operational matters, to be appointed
by the President from outside the federal government. The Board
is to advise the President and the Executive Council on policy,
technical, and management issues related to the design and
implementation of the Network.
Section 206(j) requires the President, through the
Director of OMB, to report semiannually to Congress on the
state of the Network. The report is to include a general
progress report on implementation of the Network, as well as
information on how the Network is performing with respect to a
variety of specific considerations.
Section 206(k) requires the head of each agency
participating in the Network to ensure (1) full agency
compliance with Network guidelines and procedures; (2) the
provision of activities resources to support operation of and
participation in the Network; and (3) full agency cooperation
in the development of the Network and in the management and
acquisition of information technology consistent with
applicable law.
Section 206(l) requires each agency participates
in the Network to submit to OMB within one year, reports that
include the agency's strategic plan, objective performance
measures, and budgetary requirements for implementing the
Network within the agency and increasing information sharing.
Requires annual agency reports thereafter assessing the
agency's progress in complying with the Network's requirements
and outlining the agency's future plans for Network
implementation.
Requires that, within one year after enactment of
the Act and periodically thereafter, the Comptroller General
review and evaluate the implementation of the Network to
determine the extent of compliance with the Network's
requirements and to assess the effectiveness of the Network
both in improving information sharing and in protecting civil
liberties; the Comptroller General is to report to Congress on
his findings. Also directs the Inspectors General of relevant
federal agencies to, at their discretion, conduct audits or
investigations to assess their agencies' effectiveness in
improving information sharing and complying with the Network's
requirements.
Section 206 (n) Authorizes $50 million to the
Director of OMB for FY2005; authorizes such sums as are
necessary thereafter, to be allocated in accordance with the
system design and implementation plan required by the Act.
Subtitle B--Privacy and Civil Liberties
Section 211. Privacy and Civil Liberties Oversight Board
Section 211(a) establishes the Privacy and Civil
Liberties Oversight Board within the Executive Office of the
President.
Section 211(b) sets out congressional findings
that in the war on terrorism, the Government may need
additional powers, and that this shift in power calls for an
enhanced system of checks and balances to protect civil
liberties.
Section 211(c) states that the purposes of the
Board are to analyze and review actions the executive branch
takes to protect the Nation from terrorism, and ensure that
liberty concerns are appropriately considered in the
development and implementation of laws, regulations, and
policies related to efforts to protect the Nation against
terrorism.
Section 211(d) establishes the functions of the
Board which include advice and counsel, oversight, and
interaction with department and agency privacy and civil
liberties officers. Under the advice and counsel role, Section
211(d) directs the Board to review proposed legislation,
regulations, and policies, including those related to
information sharing, review the implementation of legislation,
regulations, and policies, and advise the President,
departments, and agencies. In providing advice regarding
proposals to retain or enhance a governmental power, the Board
is directed to consider whether the relevant department or
agency has explained that the power actually materially
enhances security; that there is adequate supervision of the
use by the executive branch of the power to ensure protection
of privacy and civil liberties; and that there are adequate
guidelines and oversight to properly confine its use. Under its
oversight role, the Board is directed to continually review the
regulations, policies, and procedures of departments and
agencies to ensure privacy and civil liberties are protected
and review the information sharing practices of departments and
agencies. Section 211(d) also requires the Board to review and
assess reports from department and agency privacy and civil
liberties officers, make recommendations to them, and, when
appropriate, coordinate their activities on relevant
interagency matters. It also requires members of the Board to
appear and testify before Congress upon request.
Section 211(e) establishes reporting requirements.
It requires the Board to receive reports from the department
and agency privacy and civil liberties officers, and
periodically submit reports of its activities to the President
and the appropriate committees of Congress, including the
Senate Committee on Governmental Affairs, the House Committee
on Government Reform, the Committees on the Judiciary, and the
Committees on Intelligence. This section also requires that the
reports shall be unclassified to the greatest extent possible,
with a classified annex where necessary.
Section 211(f) requires the Board to ensure the
public is informed by making its reports available to the
public to the greatest extent consistent with the protection of
classified information, and holding public hearings, as
appropriate.
Section 211(g) authorizes the Board to have access
to relevant records of departments and agencies, to interview
personnel of departments and agencies, to request information
or assistance from any State, tribal, or local government, and
to require, by subpoena issued at the direction of a majority
of the Board, persons to produce relevant information. This
section also establishes enforcement mechanisms for its
subpoena authority.
Section 211(h) establishes the membership of the
Board, which shall include a full-time chairman and four
additional members, who would be presidentially-appointed and
Senate-confirmed for 6-year fixed terms. The members of the
Board are required to be selected solely on the basis of their
professional qualifications, achievements, public stature,
expertise in civil liberties and privacy, and relevant
experience and members may not be an official, officer, or
employee of the Federal government in another capacity. This
section also requires that no more than three members of the
Board be members of the same political party. This section also
establishes procedures for meetings and quorums.
Section 211(i) establishes the compensation and
travel expenses of the Board members.
Section 211(j) establishes procedures for the
appointment and compensation of staff, provides for the use of
detailees, and authorizes the Board to procure consultant
services.
Section 211(k) directs the appropriate departments
and agencies to cooperate with the Board to ensure an
expeditious process for appropriate security clearances.
Section 211(l) provides that, for the purposes of
the Federal Advisory Committee Act, the Board shall be treated
like an agency, not an advisory committee.
Section 212. Privacy and Civil Liberties Officers
Section 212(a) requires agency and department
heads of Justice, Defense, State, Treasury, Health and Human
Services, Homeland Security, National Intelligence, and the
Central Intelligence Agency and any other department or agency
indicated by the Board to designate not less than one senior
officer to assist the head of the respective department or
agency in appropriately considering privacy and civil liberties
concerns, to periodically investigate and review agency
actions, policies, and procedures, and to ensure that the
department or agency has adequate procedures to receive,
investigate, respond to, and redress complaints from
individuals who allege violations of their privacy or civil
liberties. In providing advice regarding proposals to retain or
enhance a governmental power, the privacy and civil liberties
officers are directed to consider whether the relevant
department or agency has explained that the power actually
materially enhances security; that there is adequate
supervision of the use by the executive branch of the power to
ensure protection of privacy and civil liberties; and that
there are adequate guidelines and oversight to properly confine
its use.
Section 212(b) provides an exception to (a) where
the privacy or civil liberties officer within a department or
agency has already been statutorily created.
Section 212(c) provides that privacy and civil
liberties officers report directly to the head of the
department or agency and that they coordinate their activities
with the appropriate Inspector General.
Section 212(d) requires the head of each
department or agency to ensure that each privacy and civil
liberties officer has the necessary information, material, and
resources to fulfill their functions, is advised of proposed
policy changes, is consulted, and is provided appropriate
access to personnel and material.
Section 212(e) prohibits reprisals against
employees for making a complaint or for disclosing information
to a privacy or civil liberties officer, or to the Privacy and
Civil Liberties Oversight Board, but provides no new personnel
rights or causes of action.
Section 212(f) establishes quarterly reporting
requirements for the privacy and civil liberties officers on
their activities.
Section 212(g) requires that the privacy and civil
liberties officers make their reports available to the public
to the greatest extent consistent with the protection of
classified information and otherwise inform the public of their
activities.
Section 212(h) makes clear that the provisions
under this section shall not be construed to limit or supplant
other authorities provided by law to privacy and civil
liberties officers.
Subtitle C--Independence of Intelligence Agencies
Section 221. Independence of the National Intelligence Director
This section requires that the NID not be based in
the Executive Office of the President. It also provides that
the NID shall provide the President and Congress with national
intelligence that is timely, objective, independent of
political considerations, and which has not been shaped to
serve policy goals.
Section 222. Independence of Intelligence
The Director of the NCTC and director of other
national intelligence centers are required to provide the
President, Congress, and the NID with intelligence that is
timely, objective, independent of political considerations, and
which has not been shaped to serve policy goals. The CIA
Director is required to ensure that the intelligence produced
by the CIA is objective, independent of political
considerations, and has not been shaped to serve policy goals.
The National Intelligence council is required to ensure that
its intelligence estimates are timely, objective, independent
of political considerations, and have not been shaped to serve
policy goals.
Section 223. Independence of National Counterterrorism Center
No officer or agency of the executive branch can
require the NCTC Director to receive permission to testify
before Congress and no officer or agency of the executive
branch can require the NCTC Director to submit testimony,
recommendations, or comments to Congress for review prior to
submission to Congress if the testimony, recommendations, or
comments include a statement indicating they are the views of
the NCTC, and do not necessarily represent the Administration's
views.
Section 224. Access of Congressional Committees to National
Intelligence
The NID, the NCTC Director and the Director of any
national intelligence center must provide to the Congressional
intelligence committees and any other committee with
jurisdiction over the subject matter to which the information
relates all intelligence assessments, intelligence estimates,
sense of the intelligence community memoranda, and daily senior
executive intelligence briefs, other than the Presidential
Daily Brief and those reports prepared exclusively for the
President.
The NID, NCTC Director and director of other
national intelligence centers are also required to respond
within 15 days to requests for any intelligence assessment,
report, estimate, or other intelligence information from the
Congressional intelligence committees or other committees of
Congress with jurisdiction over the subject matter to which the
information relates. The NID, NCTC Director, and director of
other national intelligence centers are also required to
respond to such requests from the Chairman, Vice Chairman, or
Ranking Member of the Senate or House intelligence committees.
The NID, NCTC Director, and director of other national
intelligence centers are required to provide the requested
information unless the President certifies that the information
is not being provided because the President is asserting a
privilege pursuant to the United States Constitution.
Section 225. Communications with Congress
Employees or contractors for the National
Intelligence Authority, CIA, DIA, NGA, NSA, FBI, and other
agencies principally involved in the conduct of foreign
intelligence or counterintelligence are permitted to disclose
certain information to Congress without reporting it first to
the appropriate inspector general. The information they may
report is information, including classified information, the
employee reasonably believes provides direct and specific
evidence of a false or inaccurate statement to Congress
contained in, or withheld from Congress any intelligence
information material to, any intelligence assessment, report,
or estimate. Such a disclosure may be made to a member of a
committee of Congress having primary responsibility for
oversight of the agency to which the information relates and
who is authorized to receive information of the type disclosed,
other members of Congress authorized to receive information of
the type disclosed, or an employee of Congress with the
appropriate clearance and who is authorized to receive
information of the type disclosed.
TITLE III--MODIFICATIONS OF LAWS RELATING TO INTELLIGENCE COMMUNITY
MANAGEMENT
Subtitle A--Conforming and Other Amendments
Section 301. Restatement and Modification of Basic Authority on the
Central Intelligence Agency
Makes technical and conforming amendments
establishing the Central Intelligence Agency as an independent
agency. This section also creates the position of the Director
of the Central Intelligence Agency, appointed by the President
and confirmed by the Senate. The Director of the CIA reports to
the NID regarding his or her activities.
The Director of the CIA shall (1) serve as the
head of the CIA; (2) collect intelligence through human sources
and by other appropriate means, except that the Director of the
CIA shall have no police, subpoena, or law enforcement powers
or internal security functions; (3) correlate and evaluate
intelligence related to the national security and provide
appropriate dissemination of such intelligence; (4) provide
overall direction for and coordination of the collection of
national intelligence outside the United States through human
sources by elements of the intelligence community authorized to
undertake such collection and, in coordination with other
departments, agencies, or elements of the United States
Government which are authorized to undertake such collection,
ensure that the most effective use is made of resources and
that appropriate account is taken of the risks to the United
States and those involved in such collection; and (5) perform
such other functions and duties pertaining to intelligence
relating to the national security as the President or the NID
may direct.
Notwithstanding the provisions of any other law,
the Director of the CIA may, in the discretion of the Director,
terminate the employment of any officer or employee of the CIA
whenever the Director considers the termination of employment
of such officer or employee necessary or advisable in the
interests of the United States.
The Director of the CIA shall, in accordance with
standards developed by the Director in consultation with the
NID: (1) enhance the analytic, human intelligence and other
capabilities of the CIA; (2) develop and maintain an effective
language program within the CIA; (3) emphasize the hiring of
personnel of diverse backgrounds for purposes of improving the
capabilities of the CIA; (4) establish and maintain effective
relationships between human intelligence and signals
intelligence within the CIA at the operational level; and (5)
achieve a more effective balance within the CIA with respect to
unilateral operations and liaison operations. The CIA Director
shall, not later than 180 days after the effective date of this
section, and annually thereafter, submit to the NID and the
congressional intelligence committees a report setting forth:
(A) a strategy for improving the conduct of analysis (including
strategic analysis) by the CIA, and the progress in
implementing the strategy; (B) a strategy for improving the
human intelligence and other capabilities of the CIA, and the
progress in implementing the strategy; (C) in conjunction with
the Director of the NSA, a strategy for achieving integration
between signals and human intelligence capabilities, and the
progress in implementing the strategy; (D) metrics and
milestones for measuring progress in the implementation of each
such strategy.
Section 302. Conforming Amendments Relating to Roles of National
Intelligence Director and Director of the Central Intelligence
Agency
Makes technical and conforming amendments.
Section 303. Other Conforming Amendments
Makes technical and conforming amendments.
Section 304. Modifications of Foreign Intelligence and
Counterintelligence Under National Security Act of 1947
Makes technical and conforming amendments.
Section 305. Elements of Intelligence Community Under National Security
Act of 1947
Makes technical and conforming amendments.
Section 306. Redesignation of National Foreign Intelligence Program as
the National Intelligence Program
Makes technical and conforming amendments.
Section 307. Conforming Amendments on Coordination of Budgets of
Elements of the Intelligence Community within the Department of
Defense
Makes technical and conforming amendments.
Section 308. Repeal of Superseded Authorities
Makes technical and conforming amendments.
Section 309. Clerical Amendments to National Security Act of 1947
Makes technical and conforming amendments.
Section 310. Modification of Authorities Relating to National
Counterintelligence Executive
The Office of the National Counterintelligence
Executive is moved to the Office of the NID. This section also
makes other technical amendments.
Section 311. Conforming Amendment to Inspector General Act of 1978
Makes technical and conforming amendments.
Section 312. Conforming Amendments Relating to Chief Financial Officer
of the National Intelligence Authority
Makes technical and conforming amendments.
Subtitle B--Transfers and Terminations
Section 321. Transfer of Office of Deputy Director of Central
Intelligence for Community Management
This section transfers the DCI's Community
Management Staff to the Office of the NID.
Section 322. Transfer of National Counterterrorism Executive
This office is transferred to the Office of the
NID.
Section 323. Transfer of Terrorist Threat Integration Center
This office is transferred to the NCTC.
Section 324. Termination of Certain Positions Within the Central
Intelligence Agency
This section terminates the positions of (1)
Deputy Director of Central Intelligence for Community
Management; (2) Assistant Director of Central Intelligence for
Collection; (3) Assistant Director of Central Intelligence for
Analysis and Production; and (4) Assistant Director of Central
Intelligence for Administration.
Subtitle C--Other Transition Matters
Section 331. Executive Schedule Matters
This section sets the pay for the following
individuals according to the Executive Schedule:
NID--Level I.
NCTC Director and Deputy NIDs--Level II.
Director of the Central Intelligence Agency--Level III.
Section 332. Preservation of Intelligence Capabilities
This directs the NID, DCI, and the Secretary of
Defense to take appropriate actions to preserve the
intelligence capabilities during the establishment of this act.
Section 333. Reorganization
This section provides the National Intelligence
Director the authority (with the approval of the President and
after consultation with the departments or agencies concerned)
to allocate or reallocate functions among the officers of the
NIP and establish, consolidate, alter, or discontinue
organizational units within the NIP. Any use of this authority
would have to be consistent with the law. The NID shall also
provide notice to Congress, including the rationale for the
action, and then have the reorganization plan approved by the
intelligence and government operations committees in both the
Senate and House of Representatives.
Section 334. National Intelligence Director Report on Implementation of
Intelligence Community Reform
This section requires the NID to report to
Congress on the implementation of this act one year after the
date of its enactment.
Section 335. Comptroller General Reports on Implementation of
Intelligence Community Reform
This section requires the Comptroller General of
the GAO to issue an implementation progress report two years
after the enactment of the act and issue interim reports as he
finds appropriate. These reports are to provide Congress with
(1) an overall assessment of the progress made in the
implementation of this Act (and the amendments made by this
Act), (2) a description of any delays or other short-falls in
the implementation of this Act that have been identified by the
GAO, and (3) recommendations for additional legislative or
administrative action that the Comptroller General considers
appropriate.
Section 336. General References
Makes technical and conforming amendments.
Subtitle D--Effective Date
Section 341. Effective Date
This Act will take effect 180 days after its
enactment, unless the President provides that one or more
provisions of this Act shall take effect earlier.
Subtitle E--Other Matters
Section 351. Severability
This section is a standard severability clause.
Section 352. Authorization of Appropriations
This authorizes appropriations for FY 2005 to
carry out this act.
VI. Estimated Cost of Legislation
U.S. Congress,
Congressional Budget Office,
Washington, DC, September 24, 2004.
Hon. Susan M. Collins,
Chairman, Committee on Governmental Affairs,
U.S. Senate, Washington, DC.
Dear Madam Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for S. 2840, the National
Intelligence Reform Act of 2004.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Raymond J.
Hall.
Sincerely,
Elizabeth Robinson
(For Douglas Holtz-Eakin, Director).
Enclosure.
S. 2840--National Intelligence Reform Act of 2004
Summary: S. 2840 would establish the National Intelligence
Authority (NIA) to unify and strengthen intelligence activities
of the U.S. government, including foreign intelligence and
counterintelligence activities. The legislation would transfer
some existing organizations, specifically the Office of the
Deputy Director of Central Intelligence for Community
Management and the Terrorist Threat Integration Center, to the
NIA. S. 2840 also would establish a National Counterterrorism
Center and one or more national intelligence centers within the
NIA. Finally, the legislation would direct the President to
establish a ``trusted information network'' to promote sharing
of intelligence and homeland security information among all
relevant federal departments, state and local authorities, and
relevant private-sector entities, and to establish a national
intelligence reserve corps.
CBO estimates that implementing S. 2840 would cost about
$700 million over the 2005-2009 period, assuming appropriation
of the necessary amounts. That total does not include the costs
associated with implementing provisions dealing with the
national intelligence reserve corps. CBO cannot predict when a
national emergency would occur, but costs for the proposed
reserve corps would likely be insignificant in most years.
Enacting S. 2840 would not affect direct spending or receipts.
S. 2840 contains intergovernmental and private-sector
mandates as defined in the Unfunded Mandates Reform Act (UMRA),
but CBO expects the cost of complying with those mandates would
be small and well below the thresholds established in that act
($60 million for intergovernmental mandates and $120 million
for private-sector mandates in 2004, adjusted annually for
inflation).
Estimated cost to the Federal Government: The following
table summarizes the estimated net budgetary impact of
establishing the National Intelligence Authority (including the
costs of building a new headquarters facility to house the NIA
and administering the organization) and implementing certain
activities authorized by the bill. The costs of this
legislation fall within budget functions 050 (national defense)
and 750 (administration of justice).
----------------------------------------------------------------------------------------------------------------
By fiscal year, in millions of dollars--
--------------------------------------------
2005 2006 2007 2008 2009
----------------------------------------------------------------------------------------------------------------
CHANGES IN SPENDING SUBJECT TO APPROPRIATION
Create the National Intelligence Authority:
Estimated Authorization Level.................................. 15 210 50 80 60
Estimated Outlays.............................................. 10 35 80 135 130
Establish Information-Sharing Network:
Estimated Authorization Level.................................. 50 51 52 53 54
Estimated Outlays.............................................. 25 50 52 53 54
Other Authorizations \1\:
Estimated Authorization Level.................................. 10 15 15 15 15
Estimated Outlays.............................................. 10 15 15 15 15
Total Changes:
Estimated Authorization Level.................................. 75 276 117 148 129
Estimated Outlays.............................................. 45 100 147 203 199
----------------------------------------------------------------------------------------------------------------
\1\ The estimate does not include the costs associated with establishing the national intelligence reserve
corps. Any such costs would be insignificant in most years and CBO has no basis for predicting when a national
emergency would occur.
Basis of estimate: CBO estimates that implementing S. 2840
would cost about $700 million over the 2005-2009 period,
assuming appropriation of the necessary funds. These costs are
in addition to those that would be incurred by the Office of
the Deputy Director of Central Intelligence for Community
Management and the Terrorist Threat Integration Center under
current law. The estimated costs include expenses to establish,
house, and administer the new intelligence authority, carry out
new information-sharing activities in 2005 specifically
authorized in the bill, and implement other specified programs,
such as improving intelligence training programs and
establishing a scholarship program. The estimate does not
include the costsassociated with establishing the national
intelligence reserve corps. Any such costs would be insignificant in
most years, and CBO has no basis for predicting when a national
emergency would occur.
For purposes of this estimate, CBO assumes that the bill
will be enacted by the end of the calendar year and that
necessary funds will be appropriated for each fiscal year. The
estimated costs of implementing the bill are based on limited
information obtained about the affected organizations and on
the staffing levels and administrative expenses of other
federal agencies.
Create the National Intelligence Authority
CBO estimates that establishing, housing, and administering
the new authority would cost about $390 million over the 2005-
2009 period.
Costs for New NIA Staff and Interim Office Space. The bill
would transfer the Office of the Deputy Director of Central
Intelligence for Community Management (identified as the
Intelligence Community Management Account within the budget)
and the Terrorist Threat Integration Center (TTIC) to the NIA.
The Intelligence Community Management Account (ICMA) was
established by Congressional direction to provide resources
that directly support the Director of the Central Intelligence
Agency (CIA) and the intelligence community as a whole in
coordinating cross-program activities. Because part of its
budget is classified, CBO does not know the overall size of
this organization. Unclassified budgets for the ICMA indicate
that the office has a staff of about 300 people who develop the
National Foreign Intelligence Program budget, oversee research
and development activities, and develop intelligence plans and
requirements, but the Congress also authorizes and appropriates
funds for additional staff in the classified portion of the
intelligence budget.
Similarly, CBO has no budget information on the TTIC, but
public information released by the White House indicates that
the center opened in May 2004 with a staff of about 60 people
working alongside the counterterrorism offices of the Federal
Bureau of Investigation and the CIA. That same information
indicates that the Administration expects to eventually staff
the TTIC with between 200 and 300 people to serve as the hub
for all intelligence regarding terrorist threats.
CBO expects that the NIA will require additional staff to
perform its authorized functions above the staff transferred
from the ICMA and the planned staff for the TTIC. Because much
of the detailed information regarding the organization,
staffing levels, and budgets of the intelligence community are
classified at a level above clearances held by CBO employees,
CBO has used information about staff requirements from similar
organizations within the Department of Defense, the Department
of Homeland Security, and other federal agencies to attempt to
estimate the number of additional staff that might be needed by
the NIA. Based on that analysis, CBO estimates that the NIA
might need to hire around 300 new staff including appointees
such as principal and deputy directors, key managers such as a
general counsel and an inspector general, personnel to perform
administrative functions such as policy development and budget
and finance activities, and personnel for the National
Counterterrorism Center and one or more national intelligence
centers. CBO expects that many of these new hires would be
staff transferred from other organizations within the
intelligence community but that those other organizations would
eventually fill many of the vacated positions within their
organizations over about four years following enactment of this
legislation.
Based on information about the staffing levels and costs
for the administrative offices of the Department of Defense,
the Department of Homeland Security, and other agencies, CBO
estimates that the personnel and related expenses to provide
centralized leadership, coordination, and support and
analytical services for the National Intelligence Authority
would eventually cost around $45 million annually, but that
costs would be much lower in the first few years as positions
are filled. CBO estimates that such costs would be minimal in
the first year and total about $130 million over the 2005-2009
period.
Section 121 would prohibit the Office of the National
Intelligence Director from being co-located with any other
element of the intelligence community after October 1, 2006.
Until that time, CBO assumes that the director's office and
associated staff would occupy the space currently used by the
Intelligence Community Management staff. After October 1, 2006,
CBO assumes that the office would move to new office space in a
building owned by the General Services Administration (GSA)
until a new building can be built for its use. CBO estimates
that initially GSA would need to renovate and furnish office
space for the NIA staff. (After 2009, CBO expects that these
positions would be relocated to the new permanent NIA
headquarters.) CBO estimates that the GSA rental payments would
reach nearly $20 million a year and total about $40 million
over the 2007-2009 period. Additional costs to purchase
computers, network equipment, and supplies in the first few
years following the relocation into the GSA-owned building also
would be significant. CBO estimates that those costs would
total $30 million over the 2007-2009 period.
Design, Construct, and Maintain a New Federal Building. As
mentioned earlier, section 121 would prohibit the Office of the
National Intelligence Director from being co-located with any
other element of the intelligence community after October 1,
2006. Although the NIA could choose to buy or lease an existing
building, CBO assumes that GSA would construct a new building
on land already owned by the federal government to serve as the
headquarters of the NIA because of the need for a building that
meets Level-V security standards and the mission of the new
authority.
Based on information provided by GSA about recent federal
office building projects. CBO estimates that planning and
design of the new headquarters would cost $15 million over the
2005-2006 period, and that constructing the facility to house
NIA employees would cost about $175 million over the 2006-2009
period. (An additional $20 million in spending would occur in
2010 to complete construction of the new building.) CBO assumes
that the headquarters would be located on property already
owned by the federal government in the Washington, D.C., area.
If GSA had to buy land for the building site, costs would be
higher. CBO assumes that construction of the new facility would
not start until sometime in late 2006 and would be completed
after 2009. Therefore, CBO estimates that no costs associated
with furnishing, equipping, and maintaining the new space would
be incurred during the 2005-2009 period nor would there be
costs to relocate NIA staff from the interim offices to the new
headquarters over that period.
Other Program Authorizations
S. 2840 would authorize the President and the NIA to
initiate or enhance several programs within the intelligence
community. Based on information from the Administration and on
the costs of other similar efforts, CBO estimates that those
efforts would cost about $35 million in 2005 and total $305
million over the 2005-2009 period, subject to appropriation of
the necessary amounts.
Information Sharing. Section 206 would direct the President
to establish a ``trusted information network'' to promote
sharing of intelligence and homeland security information among
all relevant federal departments, state and local authorities,
and relevant private-sector entities. That section also would
create an executive council chaired by the Director of the
Office of Management and Budget to implement and manage the
network and create an advisory board to advise the President
and the executive council on policy, technical, and management
issues related to the design and operation of the network.
Finally, the section would authorize the appropriation of $50
million in fiscal year 2005 and such sums as may be necessary
for each subsequent year for this effort. For this estimate,
absent an understanding of the information networks in place
today within the intelligence community, the requirements for
establishing such an information-sharing network, and the
timelines needed to do so, CBO has projected the $50 million
authorized for 2005 over the 2006-2009 period with annual
adjustments for anticipated inflation. Thus, CBO estimates
implementing this section would cost about $235 million over
the 2005-2009 period. CBO notes that the Department of Defense
recently completed the purchase of equipment for upgrading
their intelligence network to improve the sharing of national
security intelligence, surveillance and reconnaissance, and
command and control information sharing at a cost of nearly $1
billion.
National Intelligence Reserve Corps. Section 116 would
allow the NIA to establish a national intelligence reserve
corps consisting of former employees of the intelligence
community who would be eligible for temporary reemployment
during period of national emergency. Under the bill, the total
number of personnel in this reserve corps could not exceed 200
individuals. Members of the reserve corps would receive
transportation and per diem when participating in any training,
and members who are retired federal employees would be allowed
to collect both pay and retirement benefits during the period
of reemployment. CBP cannot predict when a national emergency
might occur. In most years, CBO expects that the cost
associated with reserve corps would be insignificant--mostly
covering a limited training time and per diem and
transportation. Even in an emergency, if all members of the
reserve corps were reemployed for six months, the costs would
total only about $10 million.
Improving Intelligence Capabilities of the Federal Bureau
of Investigation (FBI). Section 204 would direct the Director
of the FBI to continue to improve the intelligence capabilities
of the bureau and to develop and maintain a national
intelligence workforce within the FBI. Today, the FBI spends
about $30 million on counterterrorism training. Since 2002,
more than 1,500 agents have been added to the bureau's staff to
meet the counterterrorism mission, an increase of about 20
percent. In addition, since the events of September 11, 2001,
the FBI has partnered with other intelligence agencies to
provide training in counterterrorism and counterintelligence to
its staff, and it plans to increase that training in the
future. Assuming that implementation of this section would
result in more training than currently planned, CBO estimates
that the cost for this additional training would total $3
million in 2005 and almost $30 million over the 2005-2009
period, a 20 percent increase over current spending levels.
Privacy and Civil Liberties Oversight Board. Section 211
would establish a Privacy and Civil Liberties Oversight Board
within the Executive Office of the President to advise the
President and Executive Branch on privacy concerns while
implementing new legislation. Based on the budgets of other
advisory panels, CBO estimates that the costs to operate this
panel would be about $1 million in 2005 and would total $10
million over the 2005-2009 period.
Intelligence Community Scholarship Program. Section 152
would authorize the NIA Director to establish a scholarship
program for individuals designed to recruit and prepare
students for civilian careers in the intelligence community to
meet the critical needs of the intelligence community agencies.
Assuming that the NIA would provide about 300 scholarships each
year, CBO estimates that the costs of these scholarships would
average about $6 million a year and total about $30 million
over the 2005-2009 period.
Security Clearances. Section 115 would establish uniform
procedures throughout the federal government for granting
security clearances and establish a single agency for
conducting all security clearance investigations. Currently,
the Office of Personnel Management (OPM) conducts the
investigations for 60 percent of the clearances granted by the
federal government. By early next year, that figure will grow
to 90 percent when it takes over the investigations for the
Department of Defense. Assuming that the resources for the 20
agencies for which OPM does not currently conduct
investigations are transferred to OPM, CBO estimates that there
would be no change in overall government spending if this
provision is enacted.
Intergovernmental and private-sector impact: This bill
would impose both intergovernmental and private-sector mandates
because it would create two new federal entities with the power
to subpoena information. State, local, and tribal governments,
and entities in the private sector, if subpoenaed by the
Inspector General of the National Intelligence authority or the
Privacy and Civil Liberties Oversight Board, would be required
to provide testimony, documents, or other evidence. CBO expects
that the Inspector General and the Oversight Board would use
their subpoena power sparingly and that the costs to comply
with such subpoenas would not be significant. CBO estimates
that the costs to public and private entities would be small
and well below the annual thresholds established in UMRA ($60
million for intergovernmental mandates and $120 million for
private-sector mandates in 2004, adjusted annually for
inflation).
The remaining provisions of the bill contain no mandates as
defined in UMRA and would impose no costs on state, local, or
tribal governments, or entities in the private sector.
Estimate Prepared by: Federal Costs: Raymond J. Hall;
Impact on State, Local, and Tribal Governments: Melissa
Merrill; and Impact on the Private Sector: David Arthur.
Estimate approved by: Robert A. Sunshine, Assistant
Director for Budget Analysis.
VII. Evaluation of Regulatory Impact
Pursuant to the requirements of paragraph 11(b) of rule
XXVI of the Standing Rules of the Senate, the Committee has
considered the regulatory impact of this bill. The enactment of
this legislation will result in intergovernmental and private-
sector mandates as defined in the Unfunded Mandates Reform Act
(UMRA), but the Congressional Budget Office expects the cost of
complying with those mandates would be small and well below the
thresholds established in that act ($60 million for
intergovernmental mandates and $120 million for private-sector
mandates in 2004, adjusted annually for inflation.)
VIII. ADDITIONAL VIEWS
----------
ADDITIONAL VIEWS OF SENATORS SPECTER AND SHELBY
We believe that the National Intelligence Reform Act of
2004 (S. 2840 favorably reported from the Government Affairs
Committee, includes several important provisions, particularly
the creation of a National Intelligence Director (NID) with
strong budget authority. The budget authority contained in S.
2840, if retained following Senate floor action and conference
committee, would place the newly-created NID in a stronger
posture vis-a-vis the intelligence community entities than
exists under current law and practice.
However, S. 2840 does not give the NID additional
authorities that will be required to provide the unity of
leadership and accountability necessary for meaningful
intelligence reform. In particular, we believe strongly that
the NID must have day-to-day operational control of all
elements of the Intelligence Community performing national
missions (including the Central Intelligence Agency, National
Reconnaissance Office, National Security Agency, and National
Geospatial-Intelligence Agency).
We believe that clear lines of authority between the NID
and our national intelligence agencies, extending beyond
budgetary control, are critical to our success in countering
21st century national security threats. To fulfill the historic
intent of the National Security Act of 1947, the Congress must
provide the NID--as head of the intelligence community--the
additional authorities necessary to match the position's
responsibilities and to ensure accountability. This additional
authority and responsibility will eliminate any uncertainty
that the NID is in charge and is accountable.
As such, even if S. 2840 were to be presented to the
President in its current form, its failure to provide for NID
day-to-day supervision, direction and control over the major
national intelligence entities represents a significant
inadequacy and would provide insufficient authority to address
the escalating cycle of intelligence failures that our
intelligence community has suffered over the past decade.
Alternatively, if the budgetary authority currently contained
in S. 2840 is weakened prior to presentment, we fear that the
NID will be left with meaningless control over the intelligence
community and the country will be far less secure as a result.
Arlen Spector.
Richard Shelby.
ADDITIONAL VIEWS OF SENATOR LEVIN
Today, the greatest threats facing our national security
come from terrorists. We are less likely to be attacked by
nations and armies with tanks and missiles, and more likely to
be attacked by terrorists with bombs hidden in trucks or
strapped to their bodies. Since terrorists are not deterred by
the threat of their own destruction, and because terrorist
networks are so diffuse, accurate intelligence is absolutely
essential to preventing attacks.
The release of the 9/11 Commission Report has fueled a
debate about how our intelligence community should be reformed
to better respond to this threat. This is a debate we need to
have and the country is indebted to the 9/11 Commission for its
work in setting us on the course toward reform. Chairman
Collins and Ranking Member Lieberman also deserve tremendous
credit for their tireless work in leading this undertaking at
the Governmental Affairs Committee. They have approached
Intelligence Community reform with the seriousness and sense of
urgency the subject demands. The Committee reported bill
reflects their commendable efforts. The Senate Select Committee
on Intelligence (SSCI) and the Senate Armed Services Committee
have also held a number of hearings on intelligence failures
and have built a strong record for reform.
The Governmental Affairs Committee bill is based, in
significant ways on the recommendations of the 9/11 Commission.
We need to consider carefully the recommendations of the 9/11
Commission and take action to correct the deficiencies they
identified which impaired our ability to detect and act against
those terrorists. At the same time, we should be mindful that
these issues are complex. We should take the time necessary to
understand all of the issues and develop reforms.
THE NEED FOR INDEPENDENT AND OBJECTIVE INTELLIGENCE
The Commission's report provided us many useful
recommendations for improving the structure of our intelligence
agencies. But, in taking on structural reform, we must not lose
sight of the fundamental problem that was demonstrated not by
the pre-9/11 intelligence failures but by the pre-Iraq War
intelligence failures.
The massive intelligence failures before the Iraq War were
of a totally different kind from the 9/11 failures. As
described in the bipartisan 500-page SSCI report, to a
significant degree, the failures were the result of the CIA
shaping and manipulating intelligence. The CIA interpreted and
communicated intelligence information in manner intended to, in
my opinion, and for no other discernible purpose than to, tell
the administration what it thought the administration wanted to
hear about Iraq possessing weapons of mass destruction and, at
one crucial moment, about Iraq having a close relationship with
al-Qaeda. The scope and seriousness of this problem of
manipulated intelligence to serve policy goals cannot be
overstated. At the same time, there is no evidence that a lack
of DCI authority over intelligence budgets or personnel
contributed to those failures.
The problem of manipulated and politicized intelligence is
not new. Forty years ago, Secretary of Defense McNamara invoked
classified communications intercepts to support passage of the
Gulf of Tonkin Resolution, which was used by President Johnson
as the legislative foundation for expanding the war against
Vietnam.
According to John Prados, an analyst at the National
Security Archive, Secretary McNamara used the intercepts as a
``trump card during the 1964 hearings to silence doubters.''
According to Prados, McNamara told Congress that ``intelligence
reports from a highly classified and unimpeachable source
reported that North Vietnam was making preparation to attack
our destroyers,'' and later that ``the attack was underway,''
and finally that ``the North Vietnamese lost two ships in the
engagement.''
The intercepts later proved dubious, but President Johnson
had already made the decision to escalate the conflict.
Intelligence was misused to support the Gulf of Tonkin
Resolution, and in turn, to support the President's decision.
Director of Centeral Intelligence William Casey heavily
manipulated intelligence during the Iran-Contra period. The
bipartisan Iran Contra Report set forth the evidence that
Director Casey ``misrepresented or selectively used available
intelligence to support the policy he was promoting.''
History repeated itself with the pre-war Iraq intelligence.
Before the war, top administration officials asserted that
Saddam Hussein had weapons of mass destruction and had links to
the al Qaeda terrorists who had attacked us on 911. For
instance, in December 2001 Vice President Cheney said:
* * * it's been pretty well confirmed that [9/11 al-
Qaeda hijacker Mohammad Atta] did go to Prague and he
did meet with a senior official of the Iraqi
intelligence service in Czecholslovakia last April,
several months before the attack.--(Vice President
Cheney, Meet the Press, December 9, 2001)
The President himself said in March of 2002: ``[Saddam
Hussein] possesses the world's most dangerous weapons.''
(President Bush, Press Conference, March 22, 2002)
The Vice President in August of 2002 stated the following:
But we know that Saddam has resumed his efforts to
acquire nuclear weapons. Many of us are convinced that
Saddam will acquire nuclear weapons fairly soon.--(Vice
President Cheney, Speech to the VFW's 103rd National
Convention, August 26, 2002)
National Security Advisor Rice said the following on
September 8, 2002:
We do know that there have been shipments going * * *
into Iraq, for instance, of aluminum tubes that really
are only suited to--high-quality aluminum tools that
are only really suited for nuclear weapons programs,
centrifuge programs.--(National Security Advisor Rice,
Late Edition, September 8, 2002)
A few weeks later, Secretary of Defense Rumsfeld said that:
Very likely all they need to complete a weapon is
fissile materials--and they are, at this moment,
seeking that material--both from foreign sources and
the capability to produce it indigenously.--(Secretary
Rumsfeld, Testimony Before the Senate Armed Services
Committee, September 19, 2002)
On September 19th, the President again said that Iraq has
WMD (President Bush, Remarks at OHS Complex, September 19,
2002), and before the Senate Armed Services Committee on the
same day, Secretary Rumsfeld said that Saddam Hussein ``has, at
this moment, stockpiles of chemical and biological weapons, and
is pursuing nuclear weapons.''
A week later President Bush made the unqualified link
between al-Qaeda and Saddam Hussein when he said ``you can't
distinguish between al-Qaeda and Saddam when you talk about the
war on terror.'' (President Bush, Photo Opportunity, September
25, 2002)
These leadership statements leading up to and including
September 2002, were unqualified, unconditional and certain.
The qualificiations and more cautious words in Intelligence
Community reports, estimates and findings on these subjects
were ignored by the Administration. The Intelligence Community
began to manipulate and shape the intelligence to reflect and
support the certainty of the administration's public
statements.
In July 2004, the Senate Select Committee on Intelligence
issued a 500-page unanimous report setting out dozens of
instances where the CIA or its leaders made statements about
Iraq's WMD and, to a lesser extent, links to al-Qaeda which
were significantly more certain than the underlying
intelligence reporting and than their earlier findings.
The key finding and the first overall conclusion of the
SSCI report is that ``Most of the major key judgments in the
Intelligence Community's October 2002 National Intelligence
Estimate (NIE), Iraq's Continuing Programs for Weapons of
MassDestruction, either overstated or were not supported by, the
underlying intelligence reporting.''
And relative to the alleged relationship between Saddam
Hussein and al-Qaeda, the following event is illustrative of
the CIA shaping intelligence in that area too. President Bush
said on September 28, 2002, that ``each passing day could be
the one on which the Iraqi regime gives anthrax or VX nerve gas
or someday a nuclear weapon to a terrorist group,'' On October
7, DCI Tenet sent a letter declassifying CIA intelligence which
indicated Iraq was unlikely to provide WMD to terrorists or al
Qaeda, and called such a move an ``extreme step,'' a very
different perspective from that of the President. But the very
next day, Tenet told the New York Times that there was ``no
inconsistency'' between the views in the letter and the
President's views on the subject. His statement was flatly
incorrect, but his effort to minimize the inconsistency was an
attempt to support the Administration.
There are many other examples. On February 11, 2003, DCI
Tenet publicly stated, as though it were fact, that Iraq ``has
provided training in poisons and gases to two al-Qaida
associates.'' However, in his then-classified testimony from
September 17, 2002, which was consistent with the underlying
intelligence, Director Tenet had said that the information on
training was ``from sources of varying reliability.'' The
underlying intelligence also acknowledged that the information
was ``at times contradictory.'' As the Intelligence Committee
report makes clear, Tenet's public testimony could lead people
to believe incorrectly ``that the CIA believed the training had
definitely occurred.''
At a hearing in February of this year, I asked Director
Tenet about the alleged meeting between 9/11 hijacker Mohammed
Atta and an Iraqi intelligence officer in Prague in April 2001.
He told me that the CIA had ``not gathered enough evidence to
conclude that it happened'' and that ``I don't know that it
took place. I can't say that it did.'' What he neglected to say
was that the CIA did not believe the meeting had happened, a
fact he finally acknowledged publicly in July, when he wrote
that the CIA was ``increasingly skeptical that such a meeting
occurred,'' and that there was an ``absence of any credible
information that the April 2001 meeting occurred.'' The SSCI
report notes that the ``CIA judged that other evidence [besides
the one Czech report] indicated that these meetings likely
never occurred.''
In all of these cases, and many others, where public
statements of the CIA varied from the classified intelligence
in the lead-up to the war, the Iraqi threat became clearer and
more dire and the presence of WMD more certain. In public
statements and reports, the CIA had become effectively a
political arm of the White House.
According to Bob Woodward's book, Plan of Attack, after the
Intelligence Community's case regarding Iraqi WMD was presented
to the President in the Oval Office on December 21st, 2002:
Bush turned to Tenet. ``I've been told all this
intelligence about having WMD and this is the best
we've got?''
From the end of one of the couches in the Oval
Office, Tenet rose up, threw his arms in the air.
``It's a slam-dunk case!'' the director of central
intelligence said.
Bush pressed. ``George, how confident are you?''
Tenet, a basketball fan who attended as many home
games of his alma mater Georgetown University as
possible, leaned forward and threw his arms up again.
``Don't worry, it's a slam dunk!''
As we know now--and as Director Tenet should have known
then--the case was anything but a slam dunk.
Many experts, including many of the witnesses that have
appeared before the Governmental Affairs Committee, the Senate
Select Committee on Intelligence and the Senate Armed Services
Committee during hearings on Intelligence Community reform,
have commented on the importance of promoting the independence
of our intelligence agencies and the objectivity of
intelligence analysis by insulating it from political pressure.
In his memoir Turmoil and Triumph, Former Secretary of
State George Shultz said:
The CIA should have nothing to do with policy. You
have to keep objectivity in analyses and;
The DCI should not be part of the policy process;
heavy involvement can't help but influence you. In the
policy business you develop a bias. The CIA should be
objective, and if it is not, that means what you say
must be discounted.
The Iran Contra Committee concluded that: ``The gathering,
analysis, and reporting of intelligence should be done in such
a way that there can be no question that the conclusions are
driven by the actual facts, rather than by what a policy
advocate hopes these facts will be.''
Judge William Webster, former head of the CIA, said the
following before the Senate Governmental Affairs Committee on
August 16, 2004:
With respect to relations with the president, while
the leader of the intelligence community must be the
principal advisor on intelligence to the president, he
must work hard--very hard--to avoid either the reality
or the perception that intelligence is being framed--
read ``spun''--to support a foreign policy of the
administration. * * * The head of the intelligence
community does not need to be located in the White
House, and to avoid these problems I believe he should
not be.
In an August 18, 2004 Senate Select Committee on
Intelligence hearing on Intelligence Community reform, Former
chief weapons inspector David Kay put it this way:
Intelligence must serve the nation and speak truth to
power even if in some cases elected leaders chose, as
is their right, to disagree with the intelligence with
which they are presented. This means that intelligence
should not be part of the political apparatus or
process.
That is, I think, if you move forward on NID
legislation, is going to be the hardest thing to
communicate, that the NID must serve the nation and the
national security objectives of the nation and he
serves, whoever is the president, best by giving him
the unvarnished truth, which will often not be
welcomed.
At that same hearing, Retired General Charles Boyd told the
Committee of the enormous pressure that political appointees
are under ``to give the president what he wants rather than
what he doesn't want, but needs.'' Rather than seeking a
special and close relationship to the president, Boyd suggests
that the standard for an intelligence director ``ought to be
his distance from the president, his independence of the
president, his professionalism, and be respected as such.''
And on September 21, 2004, eleven former government
officials convened by the Center for Strategic and
International Studies (CSIS), issued nine ``Guiding Principles
for Intelligence Reform.'' The CSIS group included six former
Senators; two former secretaries of Defense and one Deputy
Secretary of Defense; a former Director of Central
Intelligence; and two former secretaries of State (one of whom
was also the National Security Advisor). In words of the CSIS
11: ``When intelligence and policy are too closely tied, the
demands of policymakers can distort intelligence and
intelligence analysts can hijack the policy development
process. It is crucial to ensuring this separation that the
Intelligence Community leader have no policy role. * * * A
single individual with the last word on intelligence and a say
in policy as well could be a dangerously powerful actor in the
national security arena--using intelligence to advocate for
particular policy positions, budget requests, or weapons
systems that others lacked the knowledge to challenge.''
I share these concerns about the independence of our
intelligence professional and the objectivity of intelligence
information and I was pleased that, during consideration of
intelligence reform legislation, the Governmental Affairs
Committee adopted an amendment I offered to help assure that
the New National Intelligence Director will be independent and
produce objective intelligence.
The amendment creates a new title, the purpose of which is
to promote the independence of the National Intelligence
Director (NID) and the objectivity of intelligence. The
amendment states explicitly that the NID is outside the
Executive Office of the President and away from the politics
and policy debates of that office. This is a provision that was
supported by several witnesses who apeared before the GAC
including former DCI's Judge William Webster and Robert Gates.
The title also requires that the NID, the National
Counterterroism Center (NCTC), the National Intelligence
Council, the Central Intelligence Agency, and other any
intelligence center created by the NID, provide the President
and Congress with intelligence information that is timely,
objective, independent of political considerations and not
shaped to serve policy goals.
The title promotes the independence of the NCTC by stating
that the Director cannot be forced to ask for permission to
testify before Congress or to seek prior approval of
Congressional testimony or comments. This is based on authority
that exists for other executive branch agencies, including the
Securities and Exchange Commission, the Office of the
Comptroller of the Currency, and the Federal Reserve, among
others. This provision will help ensure Congress has access to
the unvarnished truth.
There are times when members of Congress, even members of
the intelligence Committees, are not provided timely access, or
any access at all, to the intelligence information they need.
The title seeks to remedy that by requiring that Congress have
access to intelligence reports, assessments and estimates. It
specifies that some of these documents must come to the
Intelligence Committees as a matter of course and that those
that do not automatically come to the Committee must be made
available upon request of the Chairman or Vice Chairman, with
the exception of information for which the President asserts a
Constitutionally based privilege.
The first overall conclusion of the SSCI report is that
``Most of the major key judgments in the Intelligence
Community's October 2002 National Intelligence Estimate (NIE),
Iraq's Continuing Programs for Weapons of Mass Destruction,
either overstated or were not supported by, the underlying
intelligence reporting.'' The title explicitly permits
Intelligence Community employees to come directly to Congress
with information, even if it is classified information, that
provides direct and specific evidence of a false statement to
Congress or a withholding of information from Congress in any
intelligence assessment, report or estimate.
In my additional views to the SSCI report on intelligence
failures in Iraq, I noted that the CIA Ombudsmen said that he
felt the ``hammering'' by the Administration on Iraq
intelligence was harder than he had previously witnessed in his
32-year career with the agency. My amendment addreses such
situations by adding a provision to the bill, permitting the
National Intelligence Authority Ombudsman to refer serious
cases of misconduct related to politicized intelligence and
biased reporting to the National Intelligence Authority
Inspector General for investigation.
One important proposal that could not be included in my
amendment but that I am pleased Chairman Collins and Ranking
Member Lieberman support was a change in the rules that govern
the Senate Select Committee on Intelligence. The proposal is
based on the experience of the Governmental Affairs Committee's
Permanent Subcommittee on Investigations (PSI) where the
Subcommittee Chairman and Ranking Member have unique
authorities to initiate inquiries and conduct investigations.
The PSI has a long tradition of conducting successful
bipartisan investigations and the authorities vested in the
Chairman and Ranking Member have a lot to do with this track
record. Providng similar authorities to the Chairman and Vice-
Chairman of the Senate Select Committee on Intelligence improve
oversight of the intelligence community. Enhanced Congressional
oversight was a primary recommendation of the 9/11 Commission.
The bottom line is that terrorism is our number one threat
and intelligence is our most essential tool to deal with that
threat. Before we simply create a stronger National
Intelligence Director we must take steps to ensure that the
person serving in that position, indeed our entire Intelligence
Community, are better equipped to provide objective,
independent intelligence analyses. A National Intelligence
Director must not be a more powerful ``yes man'' for the
Administration in power. Our security depends on objective,
independently arrived at intelligence.
MILITARY PERSONNEL TRANSFER AUTHORITY
I have a number of reservations about some provisions of
the GAC bill because they could potentially make us less secure
by needlessly confounding our military capability to fight the
war on terror or any other war.
For example, the bill would grant authority for the NID to
move military personnel within the agencies and activities that
fall within the NID's jurisdiction, the National Intelligence
Program (NIP).
However, while the bill places all of the activities,
including budget execution activities, of the National Security
Agency (NSA), the National Reconnaissance Office (NRO), and the
National Geospatial-Intelligence Agency (NGA)--combat support
agencies of the Department of Defense--within the NIP and under
the NID's jurisdiction, the day-to-day operations of these
agencies are left within the Department of Defense. These
agencies, as well as the Defense Intelligence Agency and the
military departments, employ thousands of military personnel
who provide direct daily support to the military for
operations, in places such as the Joint Staff in the Pentagon
and the combatant commands that are responsible for directing
combat and counterterrorist operations in the field.
Providing personnel transfer authority to the NID in these
circumstances could inadvertently result in the transfer of
military personnel who are providing critical support to
military (including counterterrorist) operations, and thus in
the loss of critical support to those operations. Unilateral
personnel moves by the NID could potentially hamper our
military forces' ability to fighter terrorism on the front
lines overseas. It is not enough to require consultation, as
the bill provides, the National Intelligence Director should be
required to obtain the concurrence of the heads of departments
and agencies from which personnel might be transferred.
Furthermore, military personnel have their own unique
career path procedures and requirements. It is possible that if
a member of the military is transferred out of their assigned
agency and into a different assignment, it could detract from
their career path options. So we must be careful not to
establish a personnel transfer authority that would
inadvertently either diminish the ability of our armed forces
to fight terrorists, or to impede military personnel in their
normal career paths.
ESTABLISHING INTELLIGENCE COLLECTION REQUIREMENTS AND ANALYSIS
PRIORITIES
There is language in this bill that would assign the
responsibility to the NID to ``establish the requirements and
priorities to govern the collection, analysis and dissemination
of national intelligence,'' and to ``establish collection and
analysis requirements for the intelligence community, determine
collection and analysis priorities, manage collection and
analysis tasking * * *'' This language poses several potential
problems in terms of independence and objectivity of
intelligence.
First, with respect to tasking collection of intelligence,
the 9/11 Commission Report notes that the NID should support
the consumers of intelligence (the customers), such as the
President and the Secretaries of Defense, State, Homeland
Security and the Attorney General. The ``customers'' should set
requirements, not the ``provider'' (the NID). If the NID
``establishes requirements'' for collection of intelligence,
that suggests that the members of the Intelligence Community
would not be able to establish their own collection
requirements, based on their assigned tasks and missions, and
with the NID serving as the arbiter of which collection
priorities will be met where there are inadequate resources.
That is how collection tasking is now managed on an interagency
basis, with a senior Director of Central Intelligence
representative chairing the collection tasking meetings. It is
a system that appears to work well.
Second, with respect to establishing the requirements and
priorities for analysis, and managing the tasking of analysis,
this may have an inadvertent and undesirable outcome. Vesting
in the NID the authority to manage analysis tasking would give
the NID the power to stifle components of the intelligence
community from providing alternative analysis when that
analysis doesn't conform to the accepted view. The NID could
assign a multitude of analytic tasks, give them high priority
and effectively preclude an intelligence component from
conducting competitive analysis that it believes is important
and which provides alternative views, such as the Department of
Energy intelligence offices analyzing the intended use of
aluminum tubes that Iraq was trying to acquire; or the National
Air and Space Intelligence Center analyzing the IraqiUnmanned
Aerial Vehicle program; or the State Department's Bureau of
Intelligence and Research analyzing claims that Iraq was trying to
obtain uranium from Africa. This authority, as stated, could lead to
more ``group think'' and have a chilling effect on competitive analysis
which all agree is so critical to objective intelligence.
The group of former government officials convened by CSIS
made a number of relevant comments in this regard: ``The best
analysis emerges from a competitive environment where different
perspectives are welcomed and alternative hypotheses are
encouraged. Intelligence reform must institutionalize these
traits in the analytical process. To preserve their
independence, analysts must be insulated from policy and
political pressure.'' They also, most perceptively observed
that: ``Intelligence Community reform must not rob Cabinet
secretaries of their own ability to assess intelligence by
centralizing the bulk of assessment resources; the secretaries
must be able to turn to their own analysts for independent
perspective and be able to task the Intelligence Community
leader for input to the policymaking process.''
DEFINITION OF THE NATIONAL INTELLIGENCE PROGRAM
There is no perfectly clear line between ``national''
intelligence and intelligence that supports joint military
operations or otherwise supports military requirements. Some
``national'' systems provide essential support to the military,
and some military systems provide intelligence for national
needs. The military is the largest consumer and producer of
intelligence, and it has needs for intelligence on a 24-hour
basis to support military operations around the world. The
challenge in reforming the Intelligence Community is to ensure
that the needs of national customers and military customers are
both met adequately. This bill consolidates the bulk of the
intelligence assets under the National Intelligence Director in
a way that may make it difficult to ensure adequate
intelligence support to the military. As the CSIS 11 stated,
``Any successful intelligence reform must respect the
military's need to maintain a robust organic tactical
intelligence capability and to have rapid access to national
intelligence assets and information.''
The bill reported by the Committee contains a definition of
the National Intelligence Program (NIP) that may not meet this
test, and thus may have harmful unintended consequences. The
underlying draft bill said that any program, project or
activity of the military departments (namely, the Army, Navy,
Air Force and Marines) to acquire intelligence ``solely'' for
the planning and conduct of ``tactical'' military operations
were not part of the NIP.
That definition was too narrow because it did not include
any activities of the Defense Intelligence Agency (since it is
not a military department), and because numerous military
intelligence activities--like those of the Joint Military
Intelligence Program--are not ``solely'' for ``tactical''
military operations. By excluding such activities from the
definition, they would have been included in the National
Intelligence Program, even though they might support military
operations 90 percent of the time.
That language was changed in committee to broaden the
definition of what is not included in the NIP, so that more
elements of the Joint Military Intelligence Program that are
run by either the military departments or the Defense
Intelligence Agency, are not included within the National
Intelligence Program. By adopting this change, the Committee
took an important step in the right direction.
However, I am concerned that, by continuing to include
those Defense Intelligence Agency programs which happen to be
funded through the National Foreign Intelligence Program, the
bill still may go too far in providing the NID control over
intelligence programs and activities that support primarily
military operations, and placing them outside the effective
control of the military and the Defense Department.
I intend to work with the Senate to address these and other
concerns when the Senate considers this legislation.
We all share a common objective: to improve our
intelligence system so that it enhances our national security.
While we want to establish a strong manager of the Intelligence
Community, we should not do so at the expense of needed
intelligence support to the military forces that are fighting
the war against terrorists both overseas and here at home.
Carl Levin.
IX. Changes to Existing Law
Pursuant to the requirements of paragraph 12 of rule XXVI
paragraph 12 of the Standing Rules of the Senate, the following
provides a print of the statutes, or the part or section
thereof, to be amended or replaced (existing law proposed to be
omitted is indicated by brackets, new material is printed in
italic, and existing law in which no change is proposed is
shown in roman):
TITLE 5--GOVERNMENT ORGANIZATION AND EMPLOYEES
PART III--EMPLOYEES
Subpart D--Pay and Allowances
CHAPTER 53--PAY RATES AND SYSTEMS
Subchapter II--Executive Schedule Pay Rates
Sec. 5312. Positions at level I
Level I of the Executive Schedule applies to the following
positions for which the annual rate of basic pay shall be the
rate determined with respect to such level under chapter 11 of
title 2 [2 USCS Sec. Sec. 351 et seq.], as adjusted by section
5318 of this title:
Secretary of State.
Secretary of the Treasury.
Secretary of Defense.
Attorney General.
Secretary of the Interior.
Secretary of Agriculture.
Secretary of Commerce.
Secretary of Labor.
Secretary of Health and Human Services.
Secretary of Housing and Urban Development.
Secretary of Transportation.
United States Trade Representative.
Secretary of Energy.
[(15)] Secretary of Education.
Secretary of Veterans Affairs.
Secretary of Homeland Security.
Director of the Office of Management and Budget.
Commissioner of Social Security, Social Security
Administration.
Director of National Drug Control Policy.
Chairman, Board of Governors of the Federal Reserve System.
National Intelligence Director.
Sec. 5313. Positions at level II
Level II of the Executive Schedule applies to the following
positions, for which the annual rate of basic pay shall be the
rate determined with respect to such level under chapter 11 of
title 2 [2 USCS Sec. Sec. 351 et seq.], as adjusted by section
5318 of this title:
[Director of Central Intelligence.]
Deputy National Intelligence Directors (5).
Director of the National Counterterrorism Center.
Sec. 5314. Positions at level III
Level III of the Executive Schedule applies to the
following positions, for which the annual rate of basic pay
shall be the rate determined with respect to such level under
chapter 11 of title 2:
[Deputy Directors of Central Intelligence (2).]
Director of the Central Intelligence Agency
* * * * * * *
Sec. 5315. Positions at level IV
Level IV of the Executive Schedule applies to the following
positions, for which the annual rate of basic pay shall be the
rate determined with respect to such level under chapter 11 of
title 2 [2 USCS Sec. Sec. 351 et seq.], as adjusted by section
5318 of this title:
[Assistant Directors of Central Intelligence (3).]
* * * * * * *
Subpart F--Labor-Management and Employee Relations
CHAPTER 73--SUITABILITY, SECURITY, AND CONDUCT
Subchapter III--Political Activities
Sec. 7323. Political activity authorized; prohibitions
* * * * * * *
(b)(1) An employee of the Federal Election Commission
(except one appointed by the President, by and with the advice
and consent of the Senate), may not request or receive from, or
give to, an employee, a Member of Congress, or an officer of a
uniformed service a political contribution.
(2)(A) No employee described under subparagraph (B) (except
one appointed by the President, by and with the advice and
consent of the Senate), may take an active part in political
management or political campaigns.
(B) The provisions of subparagraph (A) shall apply to--
(i) an employee of--
(I) the Federal Election Commission or the
Election Assistance Commission;
(II) the Federal Bureau of Investigation;
(III) the Secret Service;
(IV) the Central Intelligence Agency;
(V) the National Security Council;
(VI) the National Security Agency;
(VII) the Defense Intelligence Agency;
(VIII) the Merit Systems Protection Board;
(IX) the Office of Special Counsel;
(X) the Office of Criminal Investigation of
the Internal Revenue Service;
(XI) the Office of Investigative Programs of
the United States Customs Service;
(XII) the Office of Law Enforcement of the
Bureau of Alcohol, Tobacco, and Firearms; [or]
(XIII) the National Imagery and Mapping
Agency [National Geospatial-Intelligence
Agency]; or
(XIV) the National Intelligence Authority; or
(ii) a person employed in a position described under
section 3132(a)(4), 5372, 5372a, or 5372b of title 5,
United States Code.
* * * * * * *
Subchapter IV--Foreign Gifts and Decorations
Sec. 7342. Receipt and disposition of foreign gifts and decorations
* * * * * * *
(f)(1) Not later than January 31 of each year, each
employing agency or its delegate shall compile a listing of all
statements filed during the preceding year by the employees of
that agency pursuant to subsection (c)(3) and shall transmit
such listing to the Secretary of State who shall publish a
comprehensive listing of all such statements in the Federal
Register.
(2) Such listings shall include for each tangible gift
reported--
(A) the name and position of the employee;
(B) a brief description of the gift and the
circumstances justifying acceptance;
(C) the identity, if known, of the foreign government
and the name and position of the individual who
presented the gift;
(D) the date of acceptance of the gift;
(E) the estimated value in the United States of the
gift at the time of acceptance; and
(F) disposition or current location of the gift.
(3) Such listings shall include for each gift of travel or
travel expenses--
(A) the name and position of the employee;
(B) a brief description of the gift and the
circumstances justifying acceptance; and
(C) the identity, if known, of the foreign government
and the name and position of the individual who
presented the gift.
(4)(A) In transmitting such listings for the Central
Intelligence Agency, the [Director of Central Intelligence]
Director of the Central Intelligence Agency may delete the
information described in subparagraphs (A) and (C) of
paragraphs (2) and (3) if the Director certifies in writing to
the Secretary of State that the publication of such information
could adversely affect United States intelligence sources.
(B) In transmitting such listings for the National
Intelligence Authority, the National Intelligence Director may
delete the information described in subparagraphs (A) and (C)
of paragraphs (2) and (3) if the Director certifies in writing
to the Secretary of State that the publication of such
information could adversely affect United States intelligence
sources.
* * * * * * *
TITLE 5--APPENDIX
INSPECTOR GENERAL ACT OF 1978
Sec. 8H. Additional provisions with respect to Inspectors General of
the intelligence community
(a)(1)(A) An employee of the Defense Intelligence Agency,
the National Imagery and Mapping Agency [National Geospatial-
Intelligence Agency], the National Reconnaissance Office, or
the National Security Agency, or of a contractor of any of
those Agencies, who intends to report to Congress a complaint
or information with respect to an urgent concern may report the
complaint or information to the Inspector General of the
Department of Defense (or designee).
(B) An employee of the Federal Bureau of Investigation, or
of a contractor of the Bureau, who intends to report to
Congress a complaint or information with respect to an urgent
concern may report the complaint or information to the
Inspector General of the Department of Justice (or designee).
(C) Any other employee of, or contractor to, an executive
agency, or element or unit thereof, determined by the President
under section 2302(a)(2)(C)(ii) of title 5, United States Code,
to have as its principal function the conduct of foreign
intelligence or counterintelligence activities, who intends to
report to Congress a complaint or information with respect to
an urgent concern may report the complaint or information to
the appropriate Inspector General (or designee) under this Act
[5 USCS Appx. Sec. Sec. 1 et seq.] or section 17 of the Central
Intelligence Agency Act of 1949 [50 USCS Sec. 403q].
(D) An employee of the National Intelligence Authority, an
employee of an entity other than the Authority who is assigned
or detailed to the Authority, or of a contractor of the
Authority, who intends to report to Congress a complaint or
information to the Inspector General of the National
Intelligence Authority in accordance with section 141(h)(5) of
the National Intelligence Reform Act of 2004.
* * * * * * *
ETHICS IN GOVERNMENT ACT OF 1978
TITLE I--FINANCIAL DISCLOSURE REQUIREMENTS OF FEDERAL PERSONNEL
Sec. 105. Custody of and public access to reports
(a) Each agency, each supervising ethics office in the
executive or judicial branch, the Clerk of the House of
Representatives, and the Secretary of the Senate shall make
available to the public, in accordance with subsection (b),
each report filed under this title [5 USCS Appx. Sec. Sec. 101
et seq.] with such agency or office or with the Clerk or the
Secretary of the Senate, except that--
(1) this section does not require public availability
of a report filed by any individual in the National
Intelligence Authority, the Central Intelligence
Agency, the Defense Intelligence Agency, the National
Imagery and Mapping Agency [National Geospatial-
Intelligence Agency], or the National Security Agency,
or any individual engaged in intelligence activities in
any agency of the United States, if the President finds
or has found that, due to the nature of the office or
position occupied by such individual, public disclosure
of such report would, be [by] revealing the identity of
the individual or other sensitive information,
compromise the national interest of the United States;
and such individuals may be authorized, notwithstanding
section 104(a) [5 USCS Appx. Sec. 104(a)], to file such
additional reports as are necessary to protect their
identity from public disclosure if the President first
finds or has found that such filing is necessary in the
national interest; and
* * * * * * *
TITLE 6--DOMESTIC SECURITY
CHAPTER 1--HOMELAND SECURITY ORGANIZATION
[NATIONAL HOMELAND SECURITY COUNCIL]
[Sec. 491. National Homeland Security Council
[There is established within the Executive Office of the
President a council to be known as the ``Homeland Security
Council'' (in this title [6 USCS Sec. Sec. 491 et seq.]
referred to as the ``Council'').
[Sec. 492. Function
[The function of the Council shall be to advise the
President on homeland security matters.
[Sec. 493. Membership
[The members of the Council shall be the following:
[(1) The President.
[(2) The Vice President.
[(3) The Secretary of Homeland Security.
[(4) The Attorney General.
[(5) The Secretary of Defense.
[(6) Such other individuals as may be designated by
the President.
[Sec. 494. Other functions and activities
[For the purpose of more effectively coordinating the
policies and functions of the United States Government relating
to homeland security, the Council shall--
[(1) assess the objectives, commitments, and risks of
the United States in the interest of homeland security
and to make resulting recommendations to the President;
[(2) oversee and review homeland security policies of
the Federal Government and to make resulting
recommendations to the President; and
[(3) perform such other functions as the President
may direct.
[Sec. 495. Staff composition
[The Council shall have a staff, the head of which shall be
a civilian Executive Secretary, who shall be appointed by the
President. The President is authorized to fix the pay of the
Executive Secretary at a rate not to exceed the rate of pay
payable to the Executive Secretary of the National Security
Council.
[Sec. 496. Relation to the National Security Council
[The President may convene joint meetings of the Homeland
Security Council and the National Security Council with
participation by members of either Council or as the President
may otherwise direct.]
* * * * * * *
TITLE 18--CRIMES AND CRIMINAL PROCEDURE
PART III--PRISONS AND PRISONERS
CHAPTER 307--EMPLOYMENT
Sec. 4124. Purchase of prison-made products by Federal departments
Other provisions: Purchases by Central Intelligence Agency
of products of Federal Prison Industries. Act Dec. 13, 2003,
P.L. 108-177, Title IV, Sec. 404, 117 Stat. 2632, provides:
``Notwithstanding section 4124 of title 18, United States Code,
purchases by the Central Intelligence Agency from Federal
Prison Industries shall be made only if the [Director of
Central Intelligence] Director of the Central Intelligence
Agency determines that the product or service to be purchased
from Federal Prison Industries best meets the needs of the
Agency.''.
TITLE 18--APPENDIX
CLASSIFIED INFORMATION PROCEDURES ACT
Sec. 9. Security procedures
(a) Within one hundred and twenty days of the date of the
enactment of this Act [enacted Oct. 15, 1980], the Chief
Justice of the United States, in consultation with the Attorney
General, the [Director of Central Intelligence] National
Intelligence Director, and the Secretary of Defense, shall
prescribe rules establishing procedures for the protection
against unauthorized disclosure of any classified information
in the custody of the United States district courts, courts of
appeal, or Supreme Court. Such rules, and any changes in such
rules, shall be submitted to the appropriate committees of
Congress and shall become effective forty-five days after such
submission.
* * * * * * *
TITLE 28--JUDICIARY AND JUDICIAL PROCEDURE
PART II--DEPARTMENT OF JUSTICE
CHAPTER 31--THE ATTORNEY GENERAL
Sec. 519. Supervision of litigation
Except as otherwise authorized by law, the Attorney General
shall supervise all litigation to which the United States, an
agency, or officer thereof is a party, and shall direct all
United States attorneys, assistant United States attorneys, and
special attorneys appointed under section 543 of this title in
the discharge of their respective duties.
Other provisions: Intelligence and national security
aspects of espionage prosecutions. Act Dec. 13, 2003, P.L. 108-
177, Title III, Subtitle C, Sec. 341(b), 117 Stat. 2616,
provides: ``The Attorney General, acting through the Office of
Intelligence Policy and Review of the Department of Justice,
and in consultation with the [Director of Central Intelligence]
National Intelligence Director, acting through the Office of
the National Counterintelligence Executive, shall establish
policies and procedures to assist the Attorney General in the
consideration of intelligence and national security-related
equities in the development of charging documents and related
pleadings in espionage prosecutions.''.
* * * * * * *
TITLE 31--MONEY AND FINANCE
SUBTITLE I--GENERAL
CHAPTER 9--AGENCY CHIEF FINANCIAL OFFICERS
Sec. 901. Establishment of agency Chief Financial Officers
* * * * * * *
(b) (1) The agencies referred to in subsection (a)(1) are
the following:
(A) The Department of Agriculture.
(B) The Department of Commerce.
(C) The Department of Defense.
(D) The Department of Education.
(E) The Department of Energy.
(F) The Department of Health and Human Services.
(G) The Department of Housing and Urban Development.
(H) The Department of the Interior.
(I) The Department of Justice.
(J) The Department of Labor.
(K) The Department of State.
(L) The Department of Transportation.
(M) The Department of the Treasury.
(N) The Department of Veterans Affairs.
(O) The Environmental Protection Agency.
(P) The National Aeronautics and Space Administration.
(Q) The National Intelligence Authority.
* * * * * * *
TITLE 40--PUBLIC BUILDINGS, PROPERTY, AND WORKS
Subtitle I--Federal Property and Administrative Services
CHAPTER 1--GENERAL
Subchapter II--Scope
Sec. 113. Limitations
* * * * * * *
(18) the Secretary of the Interior with respect to
procurement for program operations under the Bonneville
Project Act of 1937 (16 U.S.C. 832 et seq.); [or]
(19) the Secretary of State with respect to the
furnishing of facilities in foreign countries and
reception centers within the United States[.]; or
(20) the National Intelligence Director.
TITLE 50--WAR AND NATIONAL DEFENSE
CHAPTER 15--NATIONAL SECURITY
Sec. 401 note
TABLE OF CONTENTS
TITLE I--COORDINATION FOR NATIONAL SECURITY
Sec. 101. National Security Council
JOINT INTELLIGENCE COMMUNITY COUNCIL
Sec. 101A. (a) Joint Intelligence Community Council.--
(b) Membership.--The Joint Intelligence Community Council
shall consist of the following:
(1) The National Intelligence Director, who shall
chair the Council.
(2) The Secretary of State.
(3) The Secretary of the Treasury.
(4) The Secretary of Defense.
(5) The Attorney General.
(6) The Secretary of Energy.
(7) The Secretary of Homeland Security.
(8) Such other officers of the United States
Government as the President may designate from time to
time.
(c) Functions.--The Joint Intelligence Community Council
shall assist the National Intelligence Director in developing
and implementing a joint, unified national intelligence effort
to protect national security by--
(1) advising the Director on establishing
requirements, developing budgets, financial management,
and monitoring and evaluating the performance of the
intelligence community, and on such other matters as
the Director may request; and
(2) ensuring the timely execution of programs,
policies, and directives established or developed by
the Director.
(d) Meetings.--The Joint Intelligence Community Council
shall meet upon the request of the National Intelligence
Director.
[Sec. 102. Office of the Director of Central Intelligence]
[Sec. 102A. Central Intelligence Agency.]
[Sec. 103. Responsibilities of the Director of Central Intelligence.]
[Sec. 104. Authorities of the Director of Central Intelligence.]
CENTRAL INTELLIGENCE AGENCY
Sec. 102. (a) Central Intelligence Agency.--
(b) Function.--The function of the Central Intelligence
Agency is to assist the Director of the Central Intelligence
Agency in carrying out the responsibilities specified in
section 103(d).
DIRECTOR OF THE CENTRAL INTELLIGENCE AGENCY
Sec. 103. (a) Director of the Central Intelligence
Agency.--There is a Director of the Central Intelligence Agency
who shall be appointed by the President, by and with the advice
and consent of the Senate.
(b) Supervision.--The Director of the Central Intelligence
Agency shall report to the National Intelligence Director
regarding the activities of the Director of the Central
Intelligence Agency.
(c) Duties.--The Director of the Central Intelligence
Agency shall--
(1) serve as the head of the Central Intelligence
Agency; and
(2) carry out the responsibilities specified in
subsection (d).
(d) Responsibilities.--The Director of the Central
Intelligence Agency shall--
(1) collect intelligence through human sources and by
other appropriate means, except that the Director of
the Central Intelligence Agency shall have no police,
subpoena, or law enforcement powers or internal
security functions;
(2) correlate and evaluate intelligence related to
the national security and provide appropriate
dissemination of such intelligence;
(3) provide overall direction for and coordination of
the collection of national intelligence outside the
United States through human sources by elements of the
intelligence community authorized to undertake such
collection and, in coordination with other departments,
agencies, or elements of the United States Government
which are authorized to undertake such collection,
ensure that the most effective use is made of resources
and that appropriate account is taken of the risks to
the United States and those involved in such
collection; and
(4) perform such other functions and duties
pertaining to intelligence relating to the national
security as the President or the National Intelligence
Director may direct.
(e) Termination of Employment of CIA Employees.--
(1) Notwithstanding the provisions of any other law,
the Director of the Central Intelligence Agency may, in
the discretion of the Director, terminate the
employment of any officer or employee of the Central
Intelligence Agency whenever the Director considers the
termination of employment of such officer or employee
necessary or advisable in the interests of the United
States.
(2) Any termination of employment of an officer or
employee under paragraph (1) shall not affect the right
of the officer or employee to seek or accept employment
in any other department, agency, or element of the
United States Government if declared eligible for such
employment by the Office of Personnel Management.
(f) Coordination With Foreign Governments.--Under the
direction of the National Intelligence Director and in a manner
consistent with section 207 of the Foreign Service Act of 1980
(22 U.S.C. 3927), the Director of the Central Intelligence
Agency shall coordinate the relationships between elements of
the intelligence community and the intelligence or security
services of foreign governments on all matters involving
intelligence related to the national security or involving
intelligence acquired through clandestine means.
[Sec. 105. Responsibilities of the Secretary of Defense pertaining to
the National Foreign Intelligence Program.]
Sec. 105. Responsibilities of the Secretary of Defense pertaining to the
National Intelligence Program.
* * * * * * *
[Sec. 114. Additional annual reports from the Director of Central
Intelligence.]
Sec. 114. Additional annual reports from the National Intelligence
Director.
* * * * * * *
TITLE V--ACCOUNTABILITY FOR INTELLIGENCE ACTIVITIES
[[Sec. 506. Specificity of National Foreign Intelligence Program budget
amounts for counterterrorism, counterproliferation,
counternarcotics, and counterintelligence.]
Sec. 506. Specificity of National Intelligence Program budget amounts
for counterterrorism, counterproliferation, counternarcotics,
and counterintelligence.
* * * * * * *
Sec. 401a. Definitions
As used in this Act:
(1) The term ``intelligence'' includes foreign
intelligence and counterintelligence.
(2) The term ``foreign intelligence'' means
information relating to the capabilities, intentions,
or activities of foreign governments or elements
thereof, foreign organizations, [or foreign persons, or
international terrorist activities] foreign persons, or
international terrorists.
(3) The term ``counterintelligence'' means
information gathered, and activities conducted, to
protect against espionage, other intelligence
activities, sabotage, or assassinations conducted by or
on behalf of foreign governments or elements thereof,
foreign organizations, [or foreign persons, or
international terrorist activities] foreign persons, or
international terrorists.
(4) The term ``intelligence community'' includes the
following--
[(A) the Office of the Director of Central
Intelligence, which shall include the Office of
the Deputy Director of Central Intelligence,
the National Intelligence Council (as provided
for in section 105(b)(3) [50 USCS Sec. 403-5]),
and such other offices as the Director may
designate;]
(A) the National Intelligence Authority,
(B) the Central Intelligence Agency;
(C) the National Security Agency;
(D) the Defense Intelligence Agency;
(E) the National Geospatial-Intelligence
Agency;
(F) the National Reconnaissance Office;
(G) other offices within the Department of
Defense for the collection of specialized
national intelligence through reconnaissance
programs;
(H) the intelligence elements of the Army,
the Navy, the Air Force, the Marine Corps, the
Federal Bureau of Investigation, and the
Department of Energy[, and the Coast Guard];
(I) the Bureau of Intelligence and Research
of the Department of State;
(J) the Office of Intelligence and Analysis
of the Department of the Treasury;
(K) the elements of the Department of
Homeland Security concerned with the [analyses
of foreign intelligence information] analysis
of intelligence information, including the
Office of Intelligence of the Coast Guard; and
(L) such other elements of any [other]
department or agency as may be designated by
the President, or designated jointly by the
[Director of Central Intelligence] National
Intelligence Director and the head of the
department or agency concerned, as an element
of the intelligence community.
(5) The terms ``national intelligence'' and
``intelligence related to the national security''--
(A) each refer to intelligence which pertains
to the interests of more than one department or
agency of the Government; and
(B) do not refer to counterintelligence or
law enforcement activities conducted by the
Federal Bureau of Investigation except to the
extent provided for in procedures agreed to by
the [Director of Central Intelligence] National
Intelligence Director and the Attorney General,
or otherwise as expressly provided for in this
title.
[(6) The term ``National Foreign Intelligence
Program'' refers to all programs, projects, and
activities of the intelligence community, as well as
any other programs of the intelligence community
designated jointly by the Director of Central
Intelligence and the head of a United States department
or agency or by the President. Such term does not
include programs, projects, or activities of the
military departments to acquire intelligence solely for
the planning and conduct of tactical military
operations by United States Armed Forces.]
[(7)] (6) The term ``congressional intelligence
committees'' means--
(A) the Select Committee on Intelligence of
the Senate; and
(B) the Permanent Select Committee on
Intelligence of the House of Representatives.
COORDINATION FOR NATIONAL SECURITY
Sec. 402. National Security Council
(a) Establishment; Presiding Officer; Functions;
Composition.--There is hereby established a council to be known
as the National Security Council (hereinafter in this section
referred to as the ``Council'').
The President of the United States shall preside over
meetings of the Council: Provided, That in his absence he may
designate a member of the Council to preside in his place.
The function of the Council shall be to advise the
President with respect to the integration of domestic, foreign,
and military policies relating to the national security so as
to enable the military services and the other departments and
agencies of the Government to cooperate more effectively in
matters involving the national security.
The Council shall be composed of--
(1) the President;
(2) the Vice President;
(3) the Secretary of State;
(4) the Secretary of Defense;
[(5) the Director for Mutual Security;
[(6) the Chairman of the National Security Resources
Board; and]
(5) the Attorney General;
(6) the Secretary of Homeland Security; and
(7) The Secretaries and Under Secretaries of other
executive departments and of the military departments,
the Chairman of the Munitions Board, and the Chairman
of the Research and Development Board, when appointed
by the President by and with the advice and consent of
the Senate, to serve at his pleasure.
(b) Additional Functions.--In addition to performing such
other functions as the President may direct, for the purpose of
more effectively coordinating the policies and functions of the
departments and agencies of the Government relating to the
national security, it shall, subject to the direction of the
President, be the duty of the Council--
(1) to assess and appraise the objectives,
commitments, and risks of the United States in relation
to our actual and potential military power, in the
interest of national security, for the purpose of
making recommendations to the President in connection
therewith; [and]
(2) to consider policies on matters of common
interest to the departments and agencies of the
Government concerned with the national security, and to
make recommendations to the President in connection
therewith[.];
(3) assess the objectives, commitments, and risks of
the United States in the interests of homeland security
and make recommendations to the President based on such
assessments;
(4) oversee and review the homeland security policies
of the Federal Government and make recommendations to
the President based on such oversight and review; and
(5) perform such other functions as the President may
direct.
* * * * * * *
Sec. 402. National Security Council
* * * * * * *
(h) Committee on Foreign Intelligence.--
(1) There is established within the National Security
Council a committee to be known as the Committee on
Foreign Intelligence (in this subsection referred to as
the ``Committee'').
(2) The Committee shall be composed of the following:
(A) The [Director of Central Intelligence]
National Intelligence Director.
* * * * * * *
(5) The Committee shall submit each year to the
Council and to the [Director of Central Intelligence]
National Intelligence Director a comprehensive report
on its activities during the preceding year, including
its activities under paragraphs (3) and (4).
* * * * * * *
(i) Committee on Transnational Threats.--
(1) There is established within the National Security
Council a committee to be known as the Committee on
Transnational Threats (in this subsection referred to
as the ``Committee'').
(2) The Committee shall include the following
members:
(A) The [Director of Central Intelligence]
National Intelligence Director.
* * * * * * *
(j) Participation by Director of Central Intelligence.--The
[Director of Central Intelligence] National Intelligence
Director (or, in the Director's absence, the Deputy Director of
Central Intelligence) may, in the performance of the Director's
duties under this Act and subject to the direction of the
President, attend and participate in meetings of the National
Security Council.
* * * * * * *
(j) Participation by Director of Central Intelligence.--The
Director of Central Intelligence (or, in the Director's
absence, the [Deputy Director of Central Intelligence]
Principal Deputy National Intelligence Director) may, in the
performance of the Director's duties under this Act and subject
to the direction of the President, attend and participate in
meetings of the National Security Council.
* * * * * * *
Sec. 402b. National Counterintelligence Executive
(a) Establishment.--
(1) There shall be a National Counterintelligence
Executive, who shall be appointed by the President.
(2) It is the sense of Congress that the President
should seek the views of the Attorney General,
Secretary of Defense, and [Director of Central
Intelligence] National Intelligence Director, and
Director of the Central Intelligence Agency in
selecting an individual for appointment as the
Executive.
(b) Component of Office of National Intelligence
Director.--The National Counterintelligence Executive is a
component of the Office of the National Intelligence Director
under subtitle C of the National Intelligence Reform Act of
2004.
[(b)] (c) Mission.--The mission of the National
Counterintelligence Executive shall be to serve as the head of
national counterintelligence for the United States Government.
[(c)] (d) Duties.--Subject to the direction and control of
the President, the duties of the National Counterintelligence
Executive are as follows:
(1) To carry out the mission referred to in
subsection (b).
(2) To act as chairperson of the National
Counterintelligence Policy Board under section 811 of
the Counterintelligence and Security Enhancements Act
of 1994 (title VIII of Public Law 103-359; 50 U.S.C.
402a), as amended by section 903 of this Act.
(3) To act as head of the Office of the National
Counterintelligence Executive under section 904 [50
U.S.C. Sec. 402c].
(4) To participate as an observer on such boards,
committees, and entities of the executive branch as the
President considers appropriate for the discharge of
the mission and functions of the Executive and the
Office of the National Counterintelligence Executive
under section 904 [50 U.S.C. Sec. 402c].
(5) To perform such other duties as may be provided
under section 131(b) of the National Intelligence
Reform Act of 2004.
* * * * * * *
Sec. Sec. 402c. Office of the National Counterintelligence Executive
(a) Establishment.--There shall be an Office of the
National Counterintelligence Executive.
(b) Head of Office.--The National Counterintelligence
Executive shall be the head of the Office of the National
Counterintelligence Executive.
(c) Location of Office.--The Office of the National
Counterintelligence Executive shall be located in the [Office
of the Director of Central Intelligence] Office of the National
Intelligence Director.
* * * * * * *
(e) Functions.--Subject to the direction and control of the
National Counterintelligence Executive, the functions of the
Office of the National Counterintelligence Executive shall be
as follows:
(1) National threat identification and prioritization
assessment.--Subject to subsection (f), in consultation
with appropriate department and agencies of the United
States Government, and private sector entities, to
produce on an annual basis a strategic planning
assessment of the counterintelligence requirements of
the United States to be known as the National Threat
Identification and Prioritization Assessment.
(2) National counterintelligence strategy.--Subject
to subsection (f), in consultation with appropriate
department and agencies of the United States
Government, and private sectorentities, and based on
the most current National Threat Identification and Prioritization
Assessment under paragraph (1), to produce on an annual basis a
strategy for the counterintelligence programs and activities of the
United States Government to be known as the National
Counterintelligence Strategy.
(3) Implementation of national counterintelligence
strategy.--To evaluate on an ongoing basis the
implementation of the National Counterintelligence
Strategy and to submit to the President periodic
reports on such evaluation, including a discussion of
any shortfalls in the implementation of the Strategy
and recommendations for remedies for such shortfalls.
(4) National counterintelligence strategic
analyses.--As directed by the [Director of Central
Intelligence] National Intelligence Director and in
consultation with appropriate elements of the
departments and agencies of the United States
Government, to oversee and coordinate the production of
strategic analyses of counterintelligence matters,
including the production of counterintelligence damage
assessments and assessments of lessons learned from
counterintelligence activities.
(5) National counterintelligence program budget.--In
consultation with the [Director of Central
Intelligence] National Intelligence Director--
* * * * * * *
(h) Support.--
(1) The Attorney General, Secretary of Defense, and
[Director of Central Intelligence] National
Intelligence Director may each provide the Office of
the National Counterintelligence Executive such support
as may be necessary to permit the Office to carry out
its functions under this section.
(2) Subject to any terms and conditions specified by
the [Director of Central Intelligence] National
Intelligence Director, the Director may provide
administrative and contract support to the Office as if
the Office were an element of the Central Intelligence
Agency.
* * * * * * *
(l) Oversight by Congress.--The location of the Office of
the National Counterintelligence Executive within the [Office
of the Director of Central Intelligence] Office of the National
Intelligence Director shall not be construed as affecting
access by Congress, or any committee of Congress, to--
(1) any information, document, record, or paper in
the possession of the Office; or
(2) any personnel of the Office.
(m) Construction.--Nothing in this section shall be
construed as affecting the authority of the [Director of
Central Intelligence] National Intelligence Director, the
Director of the Central Intelligence Agency, the Secretary of
Defense, the Secretary of State, the Attorney General, or the
Director of the Federal Bureau of Investigation as provided or
specified under the National Security Act of 1947 or under
other provisions of law.
* * * * * * *
Sec. 403. Office of the Director of Central Intelligence
* * * * * * *
Other provisions:
``(b) Pilot Project To Promote Equality of Employment
Opportunities for Women and Minorities Throughout the
Intelligence Community Using Innovative Methodologies.--The
[Director of Central Intelligence] National Intelligence
Director shall carry out a pilot project under this section to
test and evaluate alternative, innovative methods to promote
equality of employment opportunities in the intelligence
community for women, minorities, and individuals with diverse
ethnic and cultural backgrounds, skills, language proficiency,
and expertise.
* * * * * * *
``(a) Report.--As soon as possible, but not later than one
year after the date of the enactment of this Act, the [Director
of Central Intelligence] National Intelligence Director shall
submit to the appropriate committees of Congress a report on
the intelligence lessons learned as a result of Operation Iraqi
Freedom, including lessons relating to the following:
``(1) The tasking, collection, processing,
exploitation, analysis, and dissemination of
intelligence.
``(2) The accuracy, timeliness, and objectivity of
intelligence analysis.
``(3) The intelligence support available to
policymakers and members of the Armed Forces in combat.
``(4) The coordination of intelligence activities and
operations with military operations.
``(5) The strengths and limitations of intelligence
systems and equipment.
``(6) Such other matters as the Director considers
appropriate.
* * * * * * *
``(f) Diversity Plan.--
``(1) Not later than February 15, 2004, the Director
of Central Intelligence shall submit to Congress a
report which describes the plan of the Director,
entitled the `DCI Diversity Strategic Plan', and any
subsequent revision to that plan, to increase diversity
of officers and employees in the intelligence
community, including the short- and long-term goals of
the plan. The report shall also provide a detailed
description of the progress that has been made by each
element of the intelligence community in implementing
the plan.
``(2) In implementing the plan, the [Director]
National Intelligence Director shall incorporate
innovative methods for recruitment and hiring that the
Director has determined to be effective from the pilot
project carried out under this section.
* * * * * * *
Sec. 403-3. Responsibilities of the Director of Central Intelligence
* * * * * * *
Other provisions:
Identification of constituent components of base
intelligence budget. Act Oct. 14, 1994, P.L. 103-359, Title VI,
Sec. 603, 108 Stat. 3433, provides: ``The Director of Central
Intelligence shall include the same level of budgetary detail
for the Base Budget that isprovided for Ongoing Initiatives and
New Initiatives to the Permanent Select Committee on Intelligence of
the House of Representatives and the Select Committee on Intelligence
of the Senate in the congressional justification materials for the
annual submission of the National Foreign Intelligence Program of each
fiscal year.''.
Periodic reports on expenditures. Act Oct. 11, 1996, P.L.
104-293, Title VIII, Sec. 807(c), 110 Stat. 3480, provides:
``Not later than January 1, 1997, the Director of Central
Intelligence and the Secretary of Defense shall prescribe
guidelines to ensure prompt reporting to the Director and the
Secretary on a periodic basis of budget execution data for all
national, defense-wide, and tactical intelligence
activities.''.
Database program tracking. Act Oct. 11, 1996, P.L. 104-293,
Title VIII, Sec. 807(d), 110 Stat. 3481, provides: ``Not later
than January 1, 1999, the Director of Central Intelligence and
the Secretary of Defense shall develop and implement a database
to provide timely and accurate information on the amounts,
purposes, and status of the resources, including periodic
budget execution updates, for all national, defense-wide, and
tactical intelligence activities.''.
Standards for spelling of foreign names and places and for
use of geographic coordinates. Act Nov. 20, 1997, P.L. 105-107,
Title III, Sec. 309, 111 Stat. 2253, provides:
``(a) Survey of Current Standards.--
``(1) Survey.--The Director of Central Intelligence
shall carry out a survey of current standards for the
spelling of foreign names and places, and the use of
geographic coordinates for such places, among the
elements of the intelligence community.
``(2) Report.--Not later than 90 days after the date
of enactment of this Act, the Director shall submit to
the congressional intelligence committees a report on
the survey carried out under paragraph (1). The report
shall be submitted in unclassified form, but may
include a classified annex.
``(b) Guidelines.--
``(1) Issuance.--Not later than 180 days after the
date of enactment of this Act, the Director shall issue
guidelines to ensure the use of uniform spelling of
foreign names and places and the uniform use of
geographic coordinates for such places. The guidelines
shall apply to all intelligence reports, intelligence
products, and intelligence databases prepared and
utilized by the elements of the intelligence community.
``(2) Basis.--The guidelines under paragraph (1)
shall, to the maximum extent practicable, be based on
current United States Government standards for the
transliteration of foreign names, standards for foreign
place names developed by the Board on Geographic Names,
and a standard set of geographic coordinates.
``(3) Submittal to congress.--The Director shall
submit a copy of the guidelines to the congressional
intelligence committees.
``(c) Congressional Intelligence Committees Defined.--In
this section, the term `congressional intelligence committees'
means the following:
``(1) The Select Committee on Intelligence of the
Senate.
``(2) The Permanent Select Committee on Intelligence
of the House of Representatives.''.
Standardized transliteration of names into the Roman
alphabet. Act Nov. 27, 2002, P.L. 107-306, Title III, Subtitle
F, Sec. 352, 116 Stat. 2401, provides:
``(a) Method of Transliteration Required.--Not later than
180 days after the date of the enactment of this Act, the
Director of Central Intelligence shall provide for a
standardized method for transliterating into the Roman alphabet
personal and place names originally rendered in any language
that uses an alphabet other than the Roman alphabet.
``(b) Use by Intelligence Community.--The [Director]
National Intelligence Director shall ensure the use of the
method established under subsection (a) in--
``(1) all communications among the elements of the
intelligence community; and
``(2) all intelligence products of the intelligence
community.''.
Pilot program on analysis of signals and other intelligence
by intelligence analysts of various elements of intelligence
community. Act Dec. 13, 2003, P.L. 108-177, Title III, Subtitle
B, Sec. 317, 117 Stat. 2611, provides:
``(a) In General.--The [Director of Central Intelligence]
National Intelligence Director shall, in coordination with the
Secretary of Defense, carry out a pilot program to assess the
feasibility and advisability of permitting intelligence
analysts of various elements of the intelligence community to
access and analyze intelligence from the databases of other
elements of the intelligence community in order to achieve the
objectives set forth in subsection (c).
* * * * * * *
``(g) Assessment.--Not later than February 1, 2004, after
the commencement under subsection (d) of the pilot program
under subsection (a), the Under Secretary of Defense for
Intelligence and the [Assistant Director of Central
Intelligence for Analysis and Production] Principal Deputy
National Intelligence Director shall jointly carry out an
assessment of the progress of the pilot program in meeting the
objectives set forth in subsection (c).
``(h) Report.--
``(1) The [Director of Central Intelligence] National
Intelligence Director shall, in coordination with the
Secretary of Defense, submit to the appropriate
committees of Congress a report on the assessment
carried out under subsection (g).
``(2) The report shall include--
``(A) a description of the pilot program
under subsection (a);
``(B) the findings of the Under Secretary and
Assistant Director as a result of the
assessment;
``(C) any recommendations regarding the pilot
program that the Under Secretary and the
Assistant Director jointly consider appropriate
in light of the assessment; and
``(D) any recommendations that the Director
and Secretary consider appropriate for purposes
of the report.
``(i) Appropriate Committees of Congress Defined.--In this
section, the term `appropriate committees of Congress' means--
``(1) the Select Committee on Intelligence, the
Committee on Armed Services, and the Committee on
Appropriations of the Senate; and
``(2) the Permanent Select Committee on Intelligence,
the Committee on Armed Services, and the Committee on
Appropriations of the House of Representatives.''.
* * * * * * *
Sec. 403-5. Responsibilities of the Secretary of Defense pertaining to
the [National Foreign Intelligence Program]
National Intelligence Program
(a) In General.--The Secretary of Defense, in consultation
with the [Director of Central Intelligence] National
Intelligence Director, shall--
(1) [ensure] assist the Director in ensuring that the
budgets of the elements of the intelligence community
within the Department of Defense are adequate to
satisfy the overall intelligence needs of the
Department of Defense, including the needs of the
chairman of the Joint Chiefs of Staff and the
commanders of the unified and specified commands and,
wherever such elements are performing governmentwide
functions, the needs of other departments and agencies;
(2) ensure appropriate implementation of the policies
and resource decisions of the Director [of Central
Intelligence] by elements of the Department of Defense
within the [National Foreign Intelligence Program]
National Intelligence Program;
(3) ensure that the tactical intelligence activities
of the Department of Defense complement and are
compatible with intelligence activities under the
[National Foreign Intelligence Program] National
Intelligence Program;
* * * * * * *
(b) Responsibility for the Performance of Specific
Functions.--Consistent with sections 103 and 104 of this Act
[50 USCS Sec. Sec. 403-3 and 403-4], the Secretary of Defense
shall ensure--
(1) through the National Security Agency (except as
otherwise directed by the President or the National
Security Council), the continued operation of an
effective unified organization for the conduct of
signals intelligence activities and shall ensure that
the product is disseminated in a timely manner to
authorized recipients;
(2) through the National Geospatial-Intelligence
Agency (except as otherwise directed by the President
or the National Security Council), with appropriate
representation from the intelligence community, the
continued operation of an effective unified
organization within the Department of Defense--
(A) for carrying out tasking of imagery
collection;
(B) for the coordination of imagery
processing and exploitation activities;
(C) for ensuring the dissemination of imagery
in a timely manner to authorized recipients;
and
(D) notwithstanding any other provision of
law, for--
(i) prescribing technical
architecture and standards related to
imagery intelligence and geospatial
information and ensuring compliance
with such architecture and standards;
and
(ii) developing and fielding systems
of common concern related to imagery
intelligence and geospatial
information;
(3) through the National Reconnaissance Office
(except as otherwise directed by the President or the
National Security Council), the continued operation of
an effective unified organization for the research and
development, acquisition, and operation of overhead
reconnaissance systems necessary to satisfy the
requirements of all elements of the intelligence
community;
(4) through the Defense Intelligence Agency (except
as otherwise directed by the President or the National
Security Council), the continued operation of an
effective unified system within the Department of
Defense for the production of timely, objective
military and military-related intelligence, based upon
all sources available to the intelligence community,
and shall ensure the appropriate dissemination of such
intelligence to authorized recipients;
(5) through the Defense Intelligence Agency (except
as otherwise directed by the President or the National
Security Council), effective management of Department
of Defense human intelligence activities, including
defense attaches; and
(6) that the military departments maintain sufficient
capabilities to collect and produce intelligence to
meet--
(A) the requirements of the [Director of
Central Intelligence] National Intelligence
Director;
* * * * * * *
Sec. 403-4 note. Separation Pay
(a) Definitions.--For purposes of this section--
[(1) the term ``Director'' means the Director of
Central Intelligence; and]
(1) the term ``Director'' means the Director of the
Central Intelligence Agency; and
* * * * * * *
Sec. 403-5b. Disclosure of foreign intelligence acquired in criminal
investigations; notice of criminal investigations
of foreign intelligence sources
(a) Disclosure of Foreign Intelligence.--
(1) Except as otherwise provided by law and subject
to paragraph (2), the Attorney General, or the head of
any other department or agency of the Federal
Government with law enforcement responsibilities, shall
expeditiously disclose to the [Director of Central
Intelligence] National Intelligence Director, pursuant
to guidelines developed by the Attorney General in
consultation with the Director, foreign intelligence
acquired by an element of the Department of Justice or
an element of such department or agency, as the case
may be, in the course of a criminal investigation.
(2) The Attorney General by regulation and in
consultation with the Director [of Central
Intelligence] may provide for exceptions to the
applicability of paragraph (1) for one or more classes
of foreign intelligence, or foreign intelligence with
respect to one or more targets or matters, if the
Attorney General determines that disclosure of such
foreign intelligence under that paragraph would
jeopardize an ongoing law enforcement investigation or
impair other significant law enforcement interests.
(b) Procedures for Notice of Criminal Investigations.--Not
later than 180 days after the date of enactment of this section
[enacted Oct. 26, 2001], the Attorney General, in consultation
with the [Director of Central Intelligence] National
Intelligence Director,shall develop guidelines to ensure that
after receipt of a report from an element of the intelligence community
of activity of a foreign intelligence source or potential foreign
intelligence source that may warrant investigation as criminal
activity, the Attorney General provides notice to the Director [of
Central Intelligence], within a reasonable period of time, of his
intention to commence, or decline to commence, a criminal investigation
of such activity.
* * * * * * *
[Sec. 403-6. Appointment of officials responsible for intelligence-
related activities
[(a) Concurrence of DCI in Certain Appointments.--
[(1) In the event of a vacancy in a position referred
to in paragraph (2), the Secretary of Defense shall
obtain the concurrence of the Director of Central
Intelligence before recommending to the President an
individual for appointment to the position. If the
Director does not concur in the recommendation, the
Secretary may make the recommendation to the President
without the Director's concurrence, but shall include
in the recommendation a statement that the Director
does not concur in the recommendation.
[(2) Paragraph (1) applies to the following
positions:
[(A) The Director of the National Security
Agency.
[(B) The Director of the National
Reconnaissance Office.
[(C) The Director of the National Geospatial-
Intelligence Agency.
[(b) Consultation With DCI in Certain Appointments.--
[(1) In the event of a vacancy in a position referred
to in paragraph (2), the head of the department or
agency having jurisdiction over the position shall
consult with the Director of Central Intelligence
before appointing an individual to fill the vacancy or
recommending to the President an individual to be
nominated to fill the vacancy.
[(2) Paragraph (1) applies to the following
positions:
[(A) The Director of the Defense Intelligence
Agency.
[(B) The Assistant Secretary of State for
Intelligence and Research.
[(C) The Director of the Office of
Intelligence of the Department of Energy.
[(D) The Director of the Office of
Counterintelligence of the Department of
Energy.
[(E) The Assistant Secretary for Intelligence
and Analysis of the Department of the Treasury.
[(3) In the event of a vacancy in the position of the
Assistant Director, National Security Division of the
Federal Bureau of Investigation, the Director of the
Federal Bureau of Investigation shall provide timely
notice to the Director of Central Intelligence of the
recommendation of the Director of the Federal Bureau of
Investigation of an individual to fill the position in
order that the Director of Central Intelligence may
consult with the Director of the Federal Bureau of
Investigation before the Attorney General appoints an
individual to fill the vacancy.]
* * * * * * *
Sec. 403a. Definitions relating to Central Intelligence Agency
When used in this Act, the term--
[(a)] (1) ``Agency'' means the Central Intelligence Agency;
[(b)] (2) [``Director'' means the Director of Central
Intelligence;] ``Director'' means the Director of the Central
Intelligence Agency; and
[(c)] (3) ``Government agency'' means any executive
department, commission, council, independent establishment,
corporation wholly or partly owned by the United States which
is an instrumentality of the United States, board, bureau,
division, service, office, officer, authority, administration,
or other establishment, in the executive branch of the
Government.
* * * * * * *
Sec. 403b. Seal of office of Central Intelligence Agency
The Director [of Central Intelligence] shall cause a seal
of office to be made for the Central Intelligence Agency, of
such design as the President shall approve, and judicial notice
shall be taken thereof.
* * * * * * *
Sec. 403p. Health benefits for certain former spouses of Central
Intelligence Agency employees
* * * * * * *
(c) Eligibility of Former Wives or Husbands.--
(1) Notwithstanding subsections (a) and (b) and
except as provided in subsections (d), (e), and (f), an
individual--
(A) who was divorced on or before December 4,
1991, from a participant or retired participant
in the Central Intelligence Agency Retirement
and Disability System or the Federal Employees
Retirement System Special Category;
(B) who was married to such participant for
not less than ten years during the
participant's creditable service, at least five
years of which were spent by the participant
during the participant's service as an employee
of the Agency outside the United States, or
otherwise in a position the duties of which
qualified the participant for designation by
the Director [of Central Intelligence] as a
participant under section 203 of the Central
Intelligence Agency Retirement Act (50 U.S.C.
2013); and
* * * * * * *
Sec. 403g. Protection of nature of Agency's functions
In the interests of the security of the foreign
intelligence activities of the United States and in order
further to implement [section 103(c)(7) of the National
Security Act of 1947 (50 U.S.C. 403-3(c)(7))] section
112(a)(11) of the National Intelligence Reform Act of 2004 that
the [Director of Central Intelligence] National Intelligence
Director shall be responsible for protecting intelligence
sources and methods from unauthorized disclosure, the Agency
shall be exempted from the provisions ofsections 1 and 2,
chapter 795 of the Act of August 28, 1935 (49 Stat. 956, 957; 5 U.S.C.
654), and the provisions of any other law which require the publication
or disclosure of the organization, functions, names, official titles,
salaries, or numbers of personnel employed by the Agency: Provided,
That in furtherance of this section the Director of the Office of
Management and Budget shall make no reports to the Congress in
connection with the Agency under section 607, title VI, chapter 212 of
the Act of June 30, 1945, as amended (5 U.S.C. 947(b)).
* * * * * * *
Sec. 403n. Retirement equity for spouses of certain employees
(a) Manner and Extent of Applicability.--The provisions of
sections 102, 221(b)(1)-(3), 221(f), 221(g), 221(h)(2), 221(i),
221(l), 222, 223, 224, 225, 232(b), 241(b), 241(d), and 264(b)
of the Central Intelligence Agency Retirement Act [50 USCS
Sec. Sec. 2002, 2031(b)(1)-(3), (f), (g), (h)(2), (i), (l),
2032-2035, 2052(b), 2071(b), (d), 2094(b)] ([former] 50 U.S.C.
403 note) establishing certain requirements, limitations,
rights, entitlements, and benefits relating to retirement
annuities, survivor benefits, and lump-sum payments for a
spouse or former spouse of an Agency employee who is a
participant in the Central Intelligence Agency Retirement and
Disability System shall apply in the same manner and to the
same extent in the case of an Agency employee who is a
participant in the Civil Service Retirement and Disability
System.
(b) Regulations.--The Director of the Office of Personnel
Management, in consultation with the [Director of Central
Intelligence] Director of the Central Intelligence Agency,
shall prescribe such regulations as may be necessary to
implement the provisions of this section.
* * * * * * *
Sec. 403p. Health benefits for certain former spouses of Central
Intelligence Agency employees
(a) Persons Eligible.--Except as provided in subsection
(e), any individual--
(1) formerly married to an employee or former
employee of the Agency, whose marriage was dissolved by
divorce or annulment before May 7, 1985;
(2) who, at any time during the eighteen-month period
before the divorce or annulment became final, was
covered under a health benefits plan as a member of the
family of such employee or former employee; and
(3) who was married to such employee for not less
than ten years during periods of service by such
employee with the Agency, at least five years of which
were spent outside the United States by both the
employee and the former spouse, is eligible for
coverage under a health benefits plan in accordance
with the provisions of this section.
(b) Enrollment for Health Benefits.--
(1) Any individual eligible for coverage under
subsection (a) may enroll in a health benefits plan for
self alone or for self and family if, before the
expiration of the six-month period beginning on the
effective date of this section, and in accordance with
such procedures as the Director of the Office of
Personnel Management shall by regulation prescribe,
such individual--
(A) files an election for such enrollment;
and
(B) arranges to pay currently into the
Employees Health Benefits Fund under section
8909 of title 5, United States Code, an amount
equal to the sum of the employee and agency
contributions payable in the case of an
employee enrolled under chapter 89 of such
title in the same health benefits plan and with
the same level of benefits.
(2) The [Director of Central Intelligence] Director
of the Central Intelligence Agency shall, as soon as
possible, take all steps practicable--
(A) to determine the identity and current
address of each former spouse eligible for
coverage under subsection (a); and
(B) to notify each such former spouse of that
individual's rights under this section.
(3) The Director of the Office of Personnel
Management, upon notification by the [Director of
Central Intelligence] Director of the Central
Intelligence Agency, shall waive the six-month
limitation set forth in paragraph (1) in any case in
which the [Director of Central Intelligence] Director
of the Central Intelligence Agency determines that the
circumstances so warrant.
* * * * * * *
Sec. 403q. Inspector General for the Agency
* * * * * * *
(d) Semiannual Reports; Immediate Reports of Serious or
Flagrant Problems; Reports of Functional Problems; Reports to
Congress on Urgent Concerns.--
(1) The Inspector General shall, not later than
January 31 and July 31 of each year, prepare and submit
to the Director [of Central Intelligence] a classified
semiannual report summarizing the activities of the
Office during the immediately preceding six-month
periods ending December 31 (of the preceding year) and
June 30, respectively. Not later than the dates each
year provided for the transmittal of such reports in
section 507 of the National Security Act of 1947 [50
USCS Sec. 415b], the Director shall transmit such
reports to the intelligence committees with any
comments he may deem appropriate. Such reports shall,
at a minimum, include a list of the title or subject of
each inspection, investigation, or audit conducted
during the reporting period and--
* * * * * * *
(f) Separate Budget Account.--Beginning with fiscal year
1991, and in accordance with procedures to be issued by the
[Director of Central Intelligence] National Intelligence
Director in consultation with the intelligence committees, the
[Director of Central Intelligence] National Intelligence
Director shall include in the [National Foreign Intelligence
Program] National Intelligence Program budget a separate
account for the Office of Inspector General established
pursuant to this section.
* * * * * * *
Sec. 403t. General Counsel of the Central Intelligence Agency
(a) Appointment.--There is a General Counsel of the Central
Intelligence Agency, appointed from civilian life by the
President, by and with the advice and consent of the Senate.
(b) Chief Legal Officer.--The General Counsel is the chief
legal officer of the Central Intelligence Agency.
(c) Functions.--The General Counsel of the Central
Intelligence Agency shall perform such functions as the
Director [of Central Intelligence] may prescribe.
* * * * * * *
Sec. 403u. Central services program
* * * * * * *
(g) Termination.--
(1) Subject to paragraph (2), the [Director of
Central Intelligence] Director of the Central
Intelligence Agency and the Director of the Office of
Management and Budget, acting jointly--
(A) may terminate the program under this
section and the Fund at any time; and
(B) upon such termination, shall provide for
the disposition of the personnel, assets,
liabilities, grants, contracts, property,
records, and unexpended balances of
appropriations, authorizations, allocations,
and other funds held, used, arising from,
available to, or to be made available in
connection with the program or the Fund.
(2) The [Director of Central Intelligence] Director
of the Central Intelligence Agency and the Director of
the Office of Management and Budget may not undertake
any action under paragraph (1) until 60 days after the
date on which the Directors jointly submit notice of
such action to the Permanent Select Committee on
Intelligence of the House of Representatives and the
Select Committee on Intelligence of the Senate.
* * * * * * *
Sec. 404e. National Mission of National Geospatial-Intelligence Agency
(a) In General.--In addition to the Department of Defense
missions set forth in section 442 of title 10, United States
Code, the National Geospatial-Intelligence Agency shall support
the geospatial intelligence requirements of the Department of
State and other departments and agencies of the United States
outside the Department of Defense.
(b) Requirements and Priorities.--The [Director of Central
Intelligence] National Intelligence Director shall establish
requirements and priorities governing the collection of
national intelligence by the National Geospatial-Intelligence
Agency under subsection (a).
(c) Correction of Deficiencies.--The [Director of Central
Intelligence] National Intelligence Director shall develop and
implement such programs and policies as the Director and the
Secretary of Defense jointly determine necessary to review and
correct deficiencies identified in the capabilities of the
National Geospatial-Intelligence Agency to accomplish assigned
national missions, including support to the all-source analysis
and production process. The Director shall consult with the
Secretary of Defense on the development and implementation of
such programs and policies. The Secretary shall obtain the
advice of the Chairman of the Joint Chiefs of Staff regarding
the matters on which the Director and the Secretary are to
consult under the preceding sentence.
* * * * * * *
[Sec. 404f. Collection tasking authority
[Unless otherwise directed by the President, the Director
of Central Intelligence shall have authority (except as
otherwise agreed by the Director and the Secretary of Defense)
to--
[(1) approve collection requirements levied on
national imagery collection assets;
[(2) determine priorities for such requirements; and
[(3) resolve conflicts in such priorities.]
* * * * * * *
Sec. 404g. Restrictions on intelligence sharing with the United Nations
(a) Provision of Intelligence Information to the United
Nations.--
(1) No United States intelligence information may be
provided to the United Nations or any organization
affiliated with the United Nations, or to any officials
or employees thereof, unless the President certifies to
the appropriate committees of Congress that the
[Director of Central Intelligence] National
Intelligence Director, in consultation with the
Secretary of State and the Secretary of Defense, has
established and implemented procedures, and has worked
with the United Nations to ensure implementation of
procedures, for protecting from unauthorized disclosure
United States intelligence sources and methods
connected to such information.
* * * * * * *
(d) Relationship to Existing Law.--Nothing in this section
shall be construed to--
(1) impair or otherwise affect the authority of the
[Director of Central Intelligence] National
Intelligence Director to protect intelligence sources
and methods from unauthorized disclosure pursuant to
section 103(c)(7) of this Act [50 USCS Sec. 403-
3(c)(7)]; or
(2) supersede or otherwise affect the provisions of
title V of this Act [50 USCS Sec. Sec. 413 et seq.].
* * * * * * *
Sec. 404g. Restrictions on intelligence sharing with the United Nations
* * * * * * *
(d) Relationship to Existing Law.--Nothing in this section
shall be construed to--
(1) impair or otherwise affect the authority of the
Director of Central Intelligence to protect
intelligence sources and methods from unauthorized
disclosure pursuant to [section 103(c)(7) of this Act]
section 112(a)(11) of the National Intelligence Reform
Act of 2004; or
* * * * * * *
Sec. 404h. Detail of intelligence community personnel; intelligence
community assignment program
* * * * * * *
(b) Benefits, Allowances, Travel, Incentives.--
(1) An employee detailed under subsection (a) may be
authorized any benefit, allowance, travel, or incentive
otherwise provided to enhance staffing by the
organization from which the employee is detailed.
(2) The head of an agency of an employee detailed
under subsection (a) may pay a lodging allowance for
the employee subject to the following conditions:
(A) The allowance shall be the lesser of the
cost of the lodging or a maximum amount payable
for the lodging as established jointly by the
[Director of Central Intelligence] National
Intelligence Director and--
* * * * * * *
Sec. 404i. [Additional annual reports from the Director of Central
Intelligence] Additional Annual Reports from the
National Intelligence Director
(a) Annual Report on the Safety and Security of Russian
Nuclear Facilities and Nuclear Military Forces.--
(1) The [Director of Central Intelligence] National
Intelligence Director shall submit to the congressional
leadership on an annual basis, and to the congressional
intelligence committees on the date each year provided
in section 507 [50 USCS Sec. 415b], an intelligence
report assessing the safety and security of the nuclear
facilities and nuclear military forces in Russia.
(2) Each such report shall include a discussion of
the following:
(A) The ability of the Government of Russia
to maintain its nuclear military forces.
(B) The security arrangements at civilian and
military nuclear facilities in Russia.
(C) The reliability of controls and safety
systems at civilian nuclear facilities in
Russia.
(D) The reliability of command and control
systems and procedures of the nuclear military
forces in Russia.
(3) Each such report shall be submitted in
unclassified form, but may contain a classified annex.
(b) Annual Report on Hiring and Retention of Minority
Employees.--
(1) The [Director of Central Intelligence] National
Intelligence Director shall, on an annual basis, submit
to Congress a report on the employment of covered
persons within each element of the intelligence
community for the preceding fiscal year.
(2) Each such report shall include disaggregated data
by category of covered person from each element of the
intelligence community on the following:
(A) Of all individuals employed in the
element during the fiscal year involved, the
aggregate percentage of such individuals who
are covered persons.
(B) Of all individuals employed in the
element during the fiscal year involved at the
levels referred to in clauses (i) and (ii), the
percentage of covered persons employed at such
levels:
(i) Positions at levels 1 through 15
of the General Schedule.
(ii) Positions at levels above GS-15.
(C) Of all individuals hired by the element
involved during the fiscal year involved, the
percentage of such individuals who are covered
persons.
(3) Each such report shall be submitted in
unclassified form, but may contain a classified annex.
(4) Nothing in this subsection shall be construed as
providing for the substitution of any similar report
required under another provision of law.
(5) In this subsection, the term ``covered persons''
means--
(A) racial and ethnic minorities;
(B) women; and
(C) individuals with disabilities.
(c) Annual Report on Threat of Attack on the United States
Using Weapons of Mass Destruction.--
(1) Not later each year than the date provided in
section 507 [50 USCS Sec. 415b], the [Director]
National Intelligence Director shall submit to the
congressional committees specified in paragraph (3) a
report assessing the following:
* * * * * * *
Sec. 404i-1. Annual report on improvement of financial statements for
auditing purposes
Not later each year than the date provided in section 507
[50 USCS Sec. 415b], the [Director of Central Intelligence]
National Intelligence Director, the Director of the Central
Intelligence Agency, the Director of the [National Security
Agency,] the Director of the Defense Intelligence Agency, and
the Director of the National Imagery and Mapping Agency
[National Geospatial-Intelligence Agency] shall each submit to
the congressional intelligence committees a report describing
the activities being undertaken by such official to ensure that
the financial statements of such agency can be audited in
accordance with applicable law and requirements of the Office
of Management and Budget.
* * * * * * *
Sec. 404j. Limitation on establishment or operation of diplomatic
intelligence support centers
(a) In General.--
(1) A diplomatic intelligence support center may not
be established, operated, or maintained without the
prior approval of the [Director of Central
Intelligence] National Intelligence Director.
(2) The Director may only approve the establishment,
operation, or maintenance of a diplomatic intelligence
support center if the Director determines that the
establishment, operation, or maintenance of such center
is required to provide necessary intelligence support
in furtherance of the national security interests of
the United States.
(b) Prohibition of Use of Appropriations.--Amounts
appropriated pursuant to authorizationsby law for intelligence
and intelligence-related activities may not be obligated or expended
for the establishment, operation, or maintenance of a diplomatic
intelligence support center that is not approved by the [Director of
Central Intelligence] National Intelligence Director.
(c) Definitions.--In this section:
(1) The term ``diplomatic intelligence support
center'' means an entity to which employees of the
various elements of the intelligence community (as
defined in section 3(4) [50 USCS Sec. 401a(4)]) are
detailed for the purpose of providing analytical
intelligence support that--
(A) consists of intelligence analyses on
military or political matters and expertise to
conduct limited assessments and dynamic
taskings for a chief of mission; and
(B) is not intelligence support traditionally
provided to a chief of mission by the [Director
of Central Intelligence] National Intelligence
Director.
(2) The term ``chief of mission'' has the meaning
given that term by section 102(3) of the Foreign
Service Act of 1980 (22 U.S.C. 3902(3)), and includes
ambassadors at large and ministers of diplomatic
missions of the United States, or persons appointed to
lead United States offices abroad designated by the
Secretary of State as diplomatic in nature.
* * * * * * *
Sec. 404k. Travel on any common carrier for certain intelligence
collection personnel
(a) In General.--Notwithstanding any other provision of
law, the [Director of Central Intelligence] National
Intelligence Director may authorize travel on any common
carrier when such travel, in the discretion of the Director--
(1) is consistent with intelligence community mission
requirements, or
(2) is required for cover purposes, operational
needs, or other exceptional circumstances necessary for
the successful performance of an intelligence community
mission.
(b) Authorized Delegation of Duty.--The [Director] National
Intelligence Director may only delegate the authority granted
by this section [to the Deputy Director of Central
Intelligence, or with respect to employees of the Central
Intelligence Agency the Director may delegate such authority to
the Deputy Director for Operations] to the Principal Deputy
National Intelligence Director, or, with respect to the
employees of the Central Intelligence Agency, to the Director
of the Central Intelligence Agency.
* * * * * * *
Sec. 404l. POW/MIA analytic capability
(a) Requirement.--
(1) The [Director of Central Intelligence] National
Intelligence Director shall, in consultation with the
Secretary of Defense, establish and maintain in the
intelligence community an analytic capability with
responsibility for intelligence in support of the
activities of the United States relating to individuals
who, after December 31, 1990, are unaccounted for
United States personnel.
* * * * * * *
Sec. 404n. National Virtual Translation Center
(a) Establishment.--[The Director of Central Intelligence,
acting as the head of the intelligence community] National
Intelligence Director, shall establish in the intelligence
community an element with the function of connecting the
elements of the intelligence community engaged in the
acquisition, storage, translation, or analysis of voice or data
in digital form.
* * * * * * *
Sec. 404n-1. Foreign Terrorist Asset Tracking Center
(a) Establishment.--The [Director of Central Intelligence,
acting as the head of the intelligence community, shall
establish in the Central Intelligence Agency] National
Intelligence Director shall establish within the Central
Intelligence Agency an element responsible for conducting all-
source intelligence analysis of information relating to the
financial capabilities, practices, and activities of
individuals, groups, and nations associated with international
terrorism in their activities relating to international
terrorism.
* * * * * * *
Sec. 404n-2. Terrorist identification classification system
(a) Requirement.--
(1) The [Director of Central Intelligence, acting as
head of the Intelligence Community] National
Intelligence Director, shall--
* * * * * * *
(c) Information Sharing.--Subject to [section 103(c)(7) of
the National Security Act of 1947 (50 U.S.C. 403-3(c)(7))]
section 112(a)(11) of the National Intelligence Reform Act of
2004, relating to the protection of intelligence sources and
methods, the Director shall provide for the sharing of the
list, and information on the list, with such departments and
agencies of the Federal Government, State and local government
agencies, and entities of foreign governments and international
organizations as the Director considers appropriate.
* * * * * * *
MISCELLANEOUS AND CONFORMING PROVISIONS
Sec. 405. Advisory Committees; appointment; compensation of part-time
personnel; applicability of other laws
(a) The Secretary of Defense, the Director of the Office of
Defense Mobilization [Director of the Federal Emergency
Management Agency], the [Director of Central Intelligence]
National Intelligence Director, and the National Security
Council, acting through its Executive Secretary, are authorized
to appoint such advisory committees and to employ, consistent
with other provisions of this Act, such part-time advisory
personnel as they may deem necessary in carrying out their
respective functions and the functions of agencies under their
control. Persons holding other offices or positions under the
United States for which they receive compensation, while
serving as members of such committees, shall receive no
additional compensation for such service. Retired members of
the uniformed services employed by the [Director of Central
Intelligence] National Intelligence Director who hold no other
office or position under the United States for which they
receive compensation, other members of such committees and
other part-time advisory personnel so employed may serve
without compensation or may receive compensation at a daily
rate not to exceed the daily equivalent of the rate of pay in
effect for grade GS-18 of the General Schedule established by
section 5332 of title 5, United States Code, as determined by
the appointing authority.
* * * * * * *
ACCOUNTABILITY FOR INTELLIGENCE ACTIVITIES
Sec. 413. General congressional oversight provisions
* * * * * * *
(d) Procedures To Protect From Unauthorized Disclosure.--
The House of Representatives and the Senate shall each
establish, by rule or resolution of such House, procedures to
protect from unauthorized disclosure all classified
information, and all information relating to intelligence
sources and methods, that is furnished to the congressional
intelligence committees or to Members of Congress under this
title [50 USCS Sec. Sec. 413 et seq.]. Such procedures shall be
established in consultation with the [Director of Central
Intelligence] National Intelligence Director. In accordance
with such procedures, each of the congressional intelligence
committees shall promptly call to the attention of its
respective House, or to any appropriate committee or committees
of its respective House, any matter relating to intelligence
activities requiring the attention of such House or such
committee or committees.
* * * * * * *
Sec. 413a. Reporting of intelligence activities other than covert
actions
(a) In General.--To the extent consistent with due regard
for the protection from unauthorized disclosure of classified
information relating to sensitive intelligence sources and
methods or other exceptionally sensitive matters, the [Director
of Central Intelligence] National Intelligence Director and the
heads of all departments, agencies, and other entities of the
United States Government involved in intelligence activities
shall--
(1) keep the congressional intelligence committees
fully and currently informed of all intelligence
activities, other than a covert action (as defined in
section 503(e) [50 USCS Sec. 413b(e)]), which are the
responsibility of, are engaged in by, or are carried
out for or on behalf of, any department, agency, or
entity of the United States Government, includingany
significant anticipated intelligence activity and any significant
intelligence failure; and
(2) furnish the congressional intelligence committees
any information or material concerning intelligence
activities, other than covert actions, which is within
their custody or control, and which is requested by
either of the congressional intelligence committees in
order to carry out its authorized responsibilities.
(b) Form and Contents of Certain Reports.--Any report
relating to a significant anticipated intelligence activity or
a significant intelligence failure that is submitted to the
congressional intelligence committees for purposes of
subsection (a)(1) shall be in writing, and shall contain the
following:
(1) A concise statement of any facts pertinent to
such report.
(2) An explanation of the significance of the
intelligence activity or intelligence failure covered
by such report.
(c) Standards and Procedures for Certain Reports.--The
[Director of Central Intelligence] National Intelligence
Director, in consultation with the heads of the departments,
agencies, and entities referred to in subsection (a), shall
establish standards and procedures applicable to reports
covered by subsection (b).
Sec. 413b. Presidential approval and reporting of covert actions
* * * * * * *
(b) Reports to Intelligence Committees; Production of
Information.--To the extent consistent with due regard for the
protection from unauthorized disclosure of classified
information relating to sensitive intelligence sources and
methods or other exceptionally sensitive matters, the [Director
of Central Intelligence] National Intelligence Director and the
heads of all departments, agencies, and entities of the United
States Government involved in a covert action--
* * * * * * *
Sec. 414. Funding of intelligence activities
(a) Obligations and Expenditures for Intelligence or
Intelligence-Related Activity; Prerequisites.--Appropriated
funds available to an intelligence agency may be obligated or
expended for an intelligence or intelligence-related activity
only if--
(1) those funds were specifically authorized by the
Congress for use for such activities; or
(2) in the case of funds from the [Reserve for
Contingencies of the Central Intelligence Agency]
Reserve for Contingencies of the National Intelligence
Director and consistent with the provision of section
503 of this Act [50 USCS Sec. 413b] concerning any
significant anticipated intelligence activity, the
[Director of Central Intelligence] National
Intelligence Director has notified the appropriate
congressional committees of the intent to make such
funds available for such activity; or
(3) in the case of funds specifically authorized by
the Congress for a different activity--
(A) the activity to be funded is a higher
priority intelligence or intelligence-related
activity;
(B) the need for funds for such activity is
based on unforseen [unforeseen] requirements;
and
(C) the [Director of Central Intelligence]
National Intelligence Director, the Secretary
of Defense, or the Attorney General, as
appropriate, has notified the appropriate
congressional committees of the intent to make
such funds available for such activity;
(4) nothing in this subsection prohibits obligation
or expenditure of funds available to an intelligence
agency in accordance with sections 1535 and 1536 of
title 31, United States Code.
(b) Activities Denied Funding by Congress.--Funds available
to an intelligence agency may not be made available for any
intelligence or intelligence-related activity for which funds
were denied by the Congress.
(c) Presidential Finding Required for Expenditure of Funds
on Covert Action.--No funds appropriated for, or otherwise
available to, any department, agency, or entity of the United
States Government may be expended, or may be directed to be
expended, for any covert action, as defined in section 503(e)
[50 USCS Sec. 413b(e)], unless and until a Presidential finding
required by subsection (a) of section 503 [50 USCS
Sec. 413b(a)] has been signed or otherwise issued in accordance
with that subsection.
(d) Report to Congressional Committees Required for
Expenditure of Non-Appropriated Funds for Intelligence
Activity.--
(1) Except as otherwise specifically provided by law,
funds available to an intelligence agency that are not
appropriated funds may be obligated or expended for an
intelligence or intelligence-related activity only if
those funds are used for activities reported to the
appropriate congressional committees pursuant to
procedures which identify--
(A) the types of activities for which
nonappropriated funds may be expended; and
(B) the circumstances under which an activity
must be reported as a significant anticipated
intelligence activity before such funds can be
expended.
(2) Procedures for purposes of paragraph (1) shall be
jointly agreed upon by the congressional intelligence
committees and, as appropriate, the [Director of
Central Intelligence] National Intelligence Director or
the Secretary of Defense.
* * * * * * *
Sec. 415a. [Specificity of National Foreign Intelligence Program budget
amounts for counterterrorism, counterproliferation,
counternarcotics, and counterintelligence]
Specificity of National Intelligence Program Budget
Amounts for Counterterrorism, Counterproliferation,
Counternarcotics, and Counterintelligence
(a) In General.--The budget justification materials
submitted to Congress in support of the budget of the President
for a fiscal year that is submitted to Congress under section
1105(a) of title 31, United States Code, shall set forth
separately the aggregate amount requested for that fiscal year
for the [National Foreign Intelligence Program] National
Intelligence Program for each of the following:
(1) Counterterrorism.
(2) Counterproliferation.
(3) Counternarcotics.
(4) Counterintelligence.
* * * * * * *
Sec. 415a-1. Budget treatment of costs of acquisition of major systems
by the intelligence community
(a) Independent Cost Estimates.--
(1) The [Director of Central Intelligence] National
Intelligence Director shall, in consultation with the
head of each element of the intelligence community
concerned, prepare an independent cost estimate of the
full life-cycle cost of development, procurement, and
operation of each major system to be acquired by the
intelligence community.
* * * * * * *
(b) Preparation of Independent Cost Estimates.--
(1) The Director shall establish within the [Office
of the Deputy Director of Central Intelligence] Office
of the National Intelligence Director for Community
Management an office which shall be responsible for
preparing independent cost estimates, and any updates
thereof, under subsection (a), unless a designation is
made under paragraph (2).
* * * * * * *
PROTECTION OF CERTAIN NATIONAL SECURITY INFORMATION
Sec. 423. Report
(a) Annual Report by President to Congress on Measures to
Protect Identities of Covert Agents.--The President, after
receiving information from the [Director of Central
Intelligence] National Intelligence Director, shall submit to
the congressional intelligence committees an annual report on
measures to protect the identities of covert agents, and on any
other matter relevant to the protection of the identities of
covert agents. The date for the submittal of the report shall
be the date provided in section 507 [50 USCS Sec. 415b].
* * * * * * *
PROTECTION OF OPERATIONAL FILES
Sec. 431. Operational files of the Central Intelligence Agency
(a) Exemption by Director of Central Intelligence.--
[Operational files of the Central Intelligence Agency may be
exempted by the Director of Central Intelligence] The Director
of the Central Intelligence Agency, with the coordination of
the National Intelligence Director, may exempt operational
files of the Central Intelligence Agency from the provisions of
section 552 of title 5, United States Code (Freedom of
Information Act), which require publication or disclosure, or
search or review in connection therewith.
* * * * * * *
(c) Search and Review for Information.--Notwithstanding
subsection (a) of this section, exempted operational files
shall continue to be subject to search and review for
information concerning--
(1) United States citizens or aliens lawfully
admitted for permanent residence who have requested
information on themselves pursuant to the provisions of
section 552 of title 5, United States Code (Freedom of
Information Act), or section 552a of title 5, United
States Code (Privacy Act of 1974);
(2) any special activity the existence of which is
not exempt from disclosure under the provisions of
section 552 of title 5, United States Code (Freedom of
Information Act); or
(3) the specific subject matter of an investigation
by the congressional intelligence committees, the
Intelligence Oversight Board, the Department of
Justice, the Office of General Counsel of the Central
Intelligence Agency, the Office of Inspector General of
the Central Intelligence Agency, [or the Office of the
Director of Central Intelligence] the Office of the
Director of the Central Intelligence Agency, or the
Office of the National Intelligence Director for any
impropriety, or violation of law, Executive order, or
Presidential directive, in the conduct of an
intelligence activity.
* * * * * * *
(g) Decennial Review of Exempted Operational Files.--
(1) Review by [Director of Central Intelligence]
Director of Central Intelligence Agency and the
National Intelligence Director. Not less than once
every ten years, the Director of Central Intelligence
shall review the exemptions in force under subsection
(a) to determine whether such exemptions may be removed
from any category of exempted files or any portion
thereof.
* * * * * * *
Sec. 432. Operational files of the National Geospatial-Intelligence
Agency
(a) Exemption of Certain Operational Files From Search,
Review, Publication, or Disclosure.--
(1) The Director of the National Geospatial-
Intelligence Agency, with the coordination of the
[Director of Central Intelligence] National
Intelligence Director, may exempt operational files of
the National Geospatial-Intelligence Agency from the
provisions of section 552 of title 5, United States
Code, which require publication, disclosure, search, or
review in connection therewith.
* * * * * * *
(b) Decennial Review of Exempted Operational Files.--
(1) Not less than once every 10 years, the Director
of the National Geospatial-Intelligence Agency and the
[Director of Central Intelligence] National
Intelligence Director shall review the exemptions in
force under subsection (a)(1) to determine whether such
exemptions may be removed from the category of exempted
files or any portion thereof. The [Director of Central
Intelligence] National Intelligence Director must
approve any determination to remove such exemptions.
* * * * * * *
Sec. 432a. Operational files of the National Reconnaissance Office
(a) Exemption of Certain Operational Files From Search,
Review, Publication, or Disclosure.--
(1) The Director of the National Reconnaissance
Office, with the coordination of the [Director of
Central Intelligence] National Intelligence Director,
may exempt operational files of the National
Reconnaissance Office from the provisions of section
552 of title 5,United States Code, which require
publication, disclosure, search, or review in connection therewith.
* * * * * * *
(6)(A) Except as provided in subparagraph (B),
whenever any person who has requested agency records
under section 552 of title 5, United States Code,
alleges that NRO has withheld records improperly
because of failure to comply with any provision of this
section, judicial review shall be available under the
terms set forth in section 552(a)(4)(B) of title 5,
United States Code.
(B) Judicial review shall not be available in the
manner provided for under subparagraph (A) as follows:
* * * * * * *
(viii) Any information filed with, or
produced for the court pursuant to clauses (i)
and (iv) shall be coordinated with the
[Director of Central Intelligence] National
Intelligence Director prior to submission to
the court.
* * * * * * *
(b) Decennial Review of Exempted Operational Files.--
(1) Not less than once every 10 years, the Director
of the National Reconnaissance Office and the [Director
of Central Intelligence] National Intelligence Director
shall review the exemptions in force under subsection
(a)(1) to determine whether such exemptions may be
removed from the category of exempted files or any
portion thereof. The [Director of Central Intelligence]
National Intelligence Director must approve any
determination to remove such exemptions.
* * * * * * *
Sec. 432b. Operational files of the National Security Agency
(a) Exemption of Certain Operational Files From Search,
Review, Publication, or Disclosure.--The Director of the
National Security Agency, in coordination with the [Director of
Central Intelligence] National Intelligence Director, may
exempt operational files of the National Security Agency from
the provisions of section 552 of title 5, United States Code,
which require publication, disclosure, search, or review in
connection therewith.
* * * * * * *
(f) Allegation; Improper Withholding of Records; Judicial
Review.--
(1) Except as provided in paragraph (2), whenever any
person who has requested agency records under section
552 of title 5, United States Code, alleges that the
National Security Agency has withheld records
improperly because of failure to comply with any
provision of this section, judicial review shall be
available under the terms set forth in section
552(a)(4)(B) of title 5, United States Code.
(2) Judicial review shall not be available in the
manner provided for under paragraph (1) as follows:
* * * * * * *
(H) Any information filed with, or produced
for the court pursuant to subparagraphs (A) and
(D) shall be coordinated with the [Director of
Central Intelligence] National Intelligence
Director before submission to the court.
(g) Decennial Review of Exempted Operational Files.--
(1) Not less than once every 10 years, the Director
of the National Security Agency and the [Director of
Central Intelligence] National Intelligence Director
shall review the exemptions in force under subsection
(a) to determine whether such exemptions may be removed
from a category of exempted files or any portion
thereof. The [Director of Central Intelligence]
National Intelligence Director must approve any
determination to remove such exemptions.
* * * * * * *
EDUCATION IN SUPPORT OF NATIONAL INTELLIGENCE
Sec. 441g. Scholarships and work-study for pursuit of graduate degrees
in science and technology
(a) Program Authorized.--The [Director of Central
Intelligence] National Intelligence Director may carry out a
program to provide scholarships and work-study for individuals
who are pursuing graduate degrees in fields of study in science
and technology that are identified by the Director as
appropriate to meet the future needs of the intelligence
community for qualified scientists and engineers.
(b) Administration.--If the [Director] National
Intelligence Director carries out the program under subsection
(a), the Director shall administer the program through the
[Assistant Director of Central Intelligence for Administration]
Office of the National Intelligence Director.
(c) Identification of Fields of Study.--If the [Director]
National Intelligence Director carries out the program under
subsection (a), the Director shall identify fields of study
under subsection (a) in consultation with the other heads of
the elements of the intelligence community.
(d) Eligibility for Participation.--An individual eligible
to participate in the program is any individual who--
(1) either--
(A) is an employee of the intelligence
community; or
(B) meets criteria for eligibility for
employment in the intelligence community that
are established by the [Director] National
Intelligence Director;
(2) is accepted in a graduate degree program in a
field of study in science or technology identified
under subsection (a); and
(3) is eligible for a security clearance at the level
of Secret or above.
(e) Regulations.--If the [Director] National Intelligence
Director carries out the program under subsection (a), the
Director shall prescribe regulations for purposes of
theadministration of this section.
* * * * * * *
Other provisions: Pilot program on recruitment and training
of intelligence analysts. Act Dec. 13, 2003, P.L. 108-177,
Title III, Subtitle B, Sec. 318, 117 Stat. 2613, provides:
``(a) Pilot Program.--
(1) The [Director of Central Intelligence] National
Intelligence Director shall carry out a pilot program
to ensure that selected students or former students are
provided funds to continue academic training, or are
reimbursed for academic training previously obtained,
in areas of specialization that the Director, in
consultation with the other heads of the elements of
the intelligence community, identifies as areas in
which the current analytic capabilities of the
intelligence community are deficient or in which future
analytic capabilities of the intelligence community are
likely to be deficient.
* * * * * * *
ADDITIONAL MISCELLANEOUS PROVISIONS
Sec. 442a. Counterintelligence initiatives
(a) Inspection Process.--
(1) In order to protect intelligence sources and
methods from unauthorized disclosure, the [Director of
Central Intelligence] National Intelligence Director
shall establish and implement an inspection process for
all agencies and departments of the United States that
handle classified information relating to the national
security of the United States intended to assure that
those agencies and departments maintain effective
operational security practices and programs directed
against counterintelligence activities.
(2) The Director shall carry out the process through
the Office of the National Counterintelligence
Executive.
(b) Annual Review of Dissemination Lists.--
(1) The [Director of Central Intelligence] National
Intelligence Director shall establish and implement a
process for all elements of the intelligence community
to review, on an annual basis, individuals included on
distribution lists for access to classified
information. Such process shall ensure that only
individuals who have a particularized ``need to know''
(as determined by the Director) are continued on such
distribution lists.
(2) Not later than October 15 of each year, the
Director shall certify to the congressional
intelligence committees that the review required under
paragraph (1) has been conducted in all elements of the
intelligence community during the preceding fiscal
year.
(c) Completion of Financial Disclosure Statements Required
for Access to Certain Classified Information.--
(1) The [Director of Central Intelligence] National
Intelligence Director shall establish and implement a
process by which each head of an element of the
intelligence community directs that all employees of
that element, in order to be granted access to
classified information referred to in subsection (a) of
section 1.3 of Executive Order No. 12968 (August 2,
1995; 60 Fed. Reg. 40245; 50 U.S.C. 435 note), submit
financial disclosure forms as required under subsection
(b) of such section.
(2) The Director shall carry out paragraph (1)
through the Office of the National Counterintelligence
Executive.
(d) Arrangements To Handle Sensitive Information.--The
[Director of Central Intelligence] National Intelligence
Director shall establish, for all elements of the intelligence
community, programs and procedures by which sensitive
classified information relating to human intelligence is
safeguarded against unauthorized disclosure by employees of
those elements.
* * * * * * *
CHAPTER 36--FOREIGN INTELLIGENCE SURVEILLANCE
ELECTRONIC SURVEILLANCE
Review expert commentary from The National Institute for
Trial Advocacy preceding 50 USCS Sec. 1801
Sec. 1802. Electronic surveillance authorization without court order;
certification by Attorney General; reports to
congressional committees; transmittal under seal;
duties and compensation of communication common
carrier; applications; jurisdiction of court
* * * * * * *
(4) With respect to electronic surveillance
authorized by this subsection, the Attorney General may
direct a specified communication common carrier to--
(A) furnish all information, facilities, or
technical assistance necessary to accomplish
the electronic surveillance in such a manner as
will protect its secrecy and produce a minimum
of interference with the services that such
carrier is providing its customers; and
(B) maintain under security procedures
approved by the Attorney General and the
[Director of Central Intelligence] National
Intelligence Director any records concerning
the surveillance or the aid furnished which
such carrier wishes to retain. The Government
shall compensate, at the prevailing rate, such
carrier for furnishing such aid.
* * * * * * *
Sec. 1803. Designation of judges
* * * * * * *
(c) Expeditious Conduct of Proceedings; Security Measures
for Maintenance of Records.--Proceedings under this Act shall
be conducted as expeditiously as possible. The record of
proceedings under this Act, including applications made and
orders granted, shall be maintained under security measures
established by the Chief Justice in consultation with the
Attorney General and the [Director of Central Intelligence]
National Intelligence Director.
* * * * * * *
Sec. 1804. Applications for court orders
* * * * * * *
(e) Personal Review by Attorney General.--
(1)(A) Upon written request of the Director of the
Federal Bureau of Investigation, the Secretary of
Defense, the Secretary of State, or the [Director of
Central Intelligence] National Intelligence Director,
the Attorney General shall personally review under
subsection (a) an application under that subsection for
a target described in section 101(b)(2) [50 USCS
Sec. 1801(b)(2)].
* * * * * * *
Sec. 1805. Issuance of order
* * * * * * *
(c) Specifications and Directions of Orders.--An order
approving an electronic surveillance under this section shall--
(1) specify--
(A) the identity, if known, or a description
of the target of the electronic surveillance;
(B) the nature and location of each of the
facilities or places at which the electronic
surveillance will be directed, if known;
(C) the type of information sought to be
acquired and the type of communications or
activities to be subjected to the surveillance;
(D) the means by which the electronic
surveillance will be effected and whether
physical entry will be used to effect the
surveillance;
(E) the period of time during which the
electronic surveillance is approved; and
(F) whenever more than one electronic,
mechanical, or other surveillance device is to
be used under the order, the authorized
coverage of the devices involved and what
minimization procedures shall apply to
information subject to acquisition by each
device; and
(2) direct--
(A) that the minimization procedures be
followed;
(B) that, upon the request of the applicant,
a specified communication or other common
carrier, landlord, custodian, or other
specified person, or in circumstances where the
Court finds that the actions of the target of
the application may have the effect of
thwarting the identification of a specified
person, such other persons, furnish the
applicant forthwith all information,
facilities, or technical assistance necessary
to accomplish the electronic surveillance in
such a manner as will protect its secrecy and
produce a minimum of interference with the
services that such carrier, landlord,
custodian, or other person is providing that
target of electronic surveillance;
(C) that such carrier, landlord, custodian,
or other person maintain under security
procedures approved by the Attorney General and
the [Director of Central Intelligence] National
Intelligence Director any records concerning
the surveillance or the aid furnished that such
person wishes to retain; and
* * * * * * *
CHAPTER 38--CENTRAL INTELLIGENCE AGENCY RETIREMENT AND DISABILITY
DEFINITIONS
Sec. 2001. Definitions relating to the system
When used in this Act [50 USCS Sec. Sec. 2001 et seq.]:
(1) Agency.--The term ``Agency'' means the Central
Intelligence Agency.
[(2) Director.--The term ``Director'' means the
Director of Central Intelligence.]
(2) Director.--The term ``Director'' means the
Director of the Central Intelligence Agency.
* * * * * * *
THE CENTRAL INTELLIGENCE AGENCY RETIREMENT AND DISABILITY SYSTEM
ESTABLISHMENT OF SYSTEM
Sec. 2011. The CIARDS system
(a) In General.--
(1) Establishment of system.--There is a retirement
and disability system for certain employees of the
Central Intelligence Agency known as the Central
Intelligence Agency Retirement and Disability System
(hereinafter in this Act [50 USCS Sec. Sec. 2001 et
seq.] referred to as the ``system''), originally
established pursuant to title II of the Central
Intelligence Agency Retirement Act of 1964 for Certain
Employees [former 50 USCS Sec. 403 note].
(2) DCI regulations.--The Director shall prescribe
regulations for the system. The Director shall submit
any proposed regulations for the system to the
congressional intelligence committees not less than 14
days before they take effect.
(b) Administration of System.--The Director shall
administer the system in accordance with regulations prescribed
under this title [50 USCS Sec. Sec. 2011 et seq.] and with the
principles established by this title [50 USCS Sec. Sec. 2011 et
seq.].
(c) Finality of Decisions of DCI.--In the interests of the
security of the foreign intelligence activities of the United
States and in order further to implement [paragraph (6) of
section 103(c) of the National Security Act of 1947 (50 U.S.C.
403-3(c)) that the Director of Central Intelligence] section
112(a)(11) of the National Intelligence Reform Act of 2004 that
the National Intelligence Director shall be responsible for
protecting intelligence sources and methods from unauthorized
disclosure, and notwithstanding the provisions of chapter 7 of
title 5, United States Code [5 USCS Sec. Sec. 701 et seq.], or
any other provision of law (except section 305(b) of this Act
[50 USCS Sec. 2155(b)]), any determination by the Director
authorized by this Act [50 USCS Sec. Sec. 2001 et seq.] shall
be final and conclusive and shall not be subject to review by
any court.
* * * * * * *
117 STAT. 2634
SEC. 504. MEASUREMENT AND SIGNATURES INTELLIGENCE RESEARCH PROGRAM.
(a) Research Program.--(1) The Secretary of Defense and the
[Director of Central Intelligence] National Intelligence
Director shall jointly carry out a program to incorporate the
results of basic research on sensors into the measurement and
signatures intelligence systems of the United States, to the
extent the results of such research are applicable to such
systems.
(2) In carrying out paragraph (1), the Secretary of Defense
and the [Director of Central Intelligence] National
Intelligence Director shall act through the Director of the
Defense Intelligence Agency's Directorate for MASINT and
Technical Collection (hereinafter in this section referred to
as the ``Director''.)