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Managing America: Authorizations

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Week Ending April 13, 2006

S.372 An original bill to authorize appropriations for fiscal year 2007 for the intelligence and intelligence-related activities of the United States Government, the Intelligence Community Management Account, and the Central Intelligence Agency Retirement and Disability System, and for other purposes.

The lion’s share of what this bill does is sensitive and classified data and is not available to the public.

The bill begins with authorizing spending for the 13 intelligence organizations and sets personnel ceilings for the intelligence agencies revealing some effort to make the intelligence community more flexible and perhaps larger up to a 2% increase. One such directive authorizes the employment of civilian personnel beyond the number authorized for FY 2007 with the oversight of Congress.

Intelligence organizations are largely about information gathering, analyzing and disseminating that information and the money spent to do so. Because the activities are often clandestine the need for those agencies and their leaders to report to Congress is essential for oversight, but some information would be made public under this bill. The President and Congress are directed to disclose publicly each fiscal year after FY 2007 the amounts of funds appropriated to the Intelligence Community Management Account of the Director of National Intelligence (DNI). The DNI must report to Congress on the advisability of such disclosure. Intelligence chiefs are required to provide to congressional committees for intelligence information within 15 days of the request.

Currently, the appropriate committees of Congress are notified of intelligence activities of the US government. Covert actions are included. The bill requires that each individual member of the intelligence committees is so informed. If not notified the DNI must notify the committee members with an explanation.

Information, the primary product of intelligence organizations, is to be shared between community elements when it is relevant to a lawful and authorized foreign intelligence activity. Information in the possession of non-intelligence agencies is to be shared if it constitutes terrorism information or information leading to the proliferation of weapons of mass destruction. Freedom of information requests are addressed to require that records of the requests be kept and certain information would not be shared. Agency activities would be reviewed to assure the protection of civil liberties. Listing gifts may be waived if listing such information could adversely affect US intelligence sources or methods. An inspector general is established for several agencies and the rules and procedures governing the IG and his/her investigations are set forth in the bill.

The bill makes clear that authorizing funds for this purpose does not constitute authority to conduct an intelligence activity not otherwise authorized by the Constitution. Release of information on intelligence agents would bring increased prison time. The current punishment is 10 years and this bill increases to 15 years the punishment for disclosure of an agent after access to the information identifying the agent. Punishment for disclosing the agent after access to classified information is raised from five to ten years.

Most of the rest of the bill sets some parameters for the DNI and specific agencies.

The DNI is authorized to use funds and resources to “direct the development, deployment, and utilization of systems related to the collection, processing, analysis, and dissemination of intelligence information” and he may transfer funds to areas of critical gaps in information sharing and access. The information, its protection and dissemination is the responsibility of the DNI. The DNI is further authorized to establish an office of inspector general regarding intelligence matters, appoint a chief information officer and to make other key appointments.

Unique this year is the authorization to create a National Space Center Intelligence Center including coordinating and providing policy direction for managing space assets and space intelligence. The mission would be to prioritize collection activities, provide policy directions and assure against threats to breaches in classified space intelligence.

CIA and National Security Agency agents would be authorized to make arrests without a warrant providing the event is in the agent’s presence and is against the US or if the agent has reason to believe the person has or is committing a felony. Air America, a Vietnam era CIA element is looked at to determine if US citizens who served in the Air America operation should share in federal retirement benefits. A report is due.

If an agent of the National Security Agency uses agency funds for education improvement does not maintain adequate education levels the NSA may require return of the money spent for the person’s education.

FBI agents with foreign language skills that can help with the war on terror can receive an award up to 5% of base pay.

Agencies governed by the bill and views of some Senators is available below.

Sponsor:  Senator John D. Rockefeller, IV (D-WV)

Vote: The motion to move to a cloture vote succeeded 94 to 3 on April 12, 2007.(RV 129) The reconsider cloture vote failed 50 to 45 April 18, 2007(RV 131) A cloture vote failed 41 TO 40 April 17, 2007 (RV 130)

Cost to the taxpayers: The bill authorizes $648.9 million for the DNI’s management account. Other authorization and uses (in the billions) are considered classified. The funds are equal to the amount the Senate committee agreed to last year altho9ugh this bill was not voted on last year. The funds are for advanced research. Retirement and disability is funded at $256.4 million.

Earmark Certification:   Not applicable to this bill.

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MORE INFORMATION

Authorizes appropriations for FY2007 for the conduct of intelligence and intelligence-related activities of the: (1) Office of the Director of National Intelligence (DNI); (2) Central Intelligence Agency (CIA); (3) Department of Defense (DOD); (4) Defense Intelligence Agency (DIA); (5) National Security Agency (NSA); (6) Departments of the Army, Navy, and Air Force; (7) Departments of State, the Treasury, Energy, and Justice; (8) Federal Bureau of Investigation (FBI); (9) National Reconnaissance Office (NRO); (10) National Geospatial-Intelligence Agency (NGIA); (11) Coast Guard; (12) Department of Homeland Security; and (13) Drug Enforcement Administration (DEA).

ADDITIONAL VIEWS OF SENATORS WYDEN AND FEINGOLD

We are pleased that the Committee has chosen to continue to push the Intelligence Authorization Act for Fiscal Year 2007 toward passage. This is a critically important piece of national security legislation, and the fact that our intelligence agencies have operated without authorizing legislation for two years represents an unfortunate failure of Congressional oversight.

The intelligence authorization bill is Congress' primary vehicle for exercising oversight of our national intelligence community. This bill addresses and legislates in many areas of national security law, in addition to authorizing the classified budget for the various intelligence agencies. We are particularly pleased with provisions that strengthen oversight by further clarifying sections of law relating to Congressional notification of intelligence activities.

There are a few sections of the bill that merit further examination and debate before they should be passed into law. In particular, section 310 of the bill creates new exemptions to the Privacy Act, with the purpose of improving information access. The potential effects of this section have not been fully explored, and the provision's impact on both privacy and on information sharing needs to be examined further.

Those sections of the bill granting new arrest authorities to NSA and CIA security personnel also merit further discussion. It is important that these individuals have all the authority that they need in order to do their jobs, but the language in the bill may be broader than necessary, and the Executive Branch has not yet explained sufficiently why new authorities are necessary.

We recognize that this bill is very important and long overdue, and support the Committee's decision to report it. We look forward to addressing our remaining concerns in conference with the House of Representatives.
RON WYDEN.
Russell D. Feingold.

ADDITIONAL VIEWS OF SENATOR WARNER

The annual intelligence authorization bill is vital legislation that authorizes the Intelligence Community's efforts against national security threats such as terrorism, proliferation, and rogue states. It also provides legislative tools and strategic guidance to reform the Intelligence Community and to support and enhance its capabilities to protect the United States, its interests, and its allies. At the time of the Committee's establishment in 1976, the authorization bill was considered to be the Committee's most effective means to ensure that the will of Congress be observed by the Intelligence Community. Indeed, the authorization bill was considered so important for oversight that the resolution creating the Committee stated that `apart from continuing resolutions, no funds shall be appropriated for intelligence activities unless previously authorized by a bill that has passed the Senate.' It is for these reasons that I decided to support the Intelligence Authorization Act for Fiscal Year 2007, despite misgivings I share with some of my colleagues about Section 304 of the bill.

There is a history of cooperation and compromise between the Congress and the President on the oversight of intelligence activities, particularly with respect to sharing with Congress sensitive information regarding intelligence sources and methods. While briefings to all members and staff may be the preferred method of notification of intelligence activities, the congressional intelligence committees have historically acquiesced to requests by the Executive branch to limit access on particularly sensitive matters to the Chairman and Vice Chairman. I support such limited notification when absolutely necessary.

In seeking to amend the National Security Act of 1947 to force the Executive Branch to disclose certain intelligence activities to the full membership of the Senate and House intelligence committees, Section 304 attempts to strip the Executive of authorities specifically recognized by the National Security Act itself. The National Security Act provides that information be shared `with due regard for the protection from unauthorized disclosure of classified information relating to sensitive intelligence sources or methods or other exceptionally sensitive matters.' This allows the Executive, in certain exceptional circumstances, to limit this information to the leadership of the Senate and House intelligence committees.

Rather than ensure that Members receive the information they are seeking, Section 304 could instead merely provoke a stalemate as the Executive branch challenges the bill as usurping Presidential authorities. My foremost concern is the prospect that the President could veto this legislation, thereby jeopardizing many other important provisions, particularly in the area of intelligence reform.

Those reform provisions, in large part, are why I chose to support this bill, notwithstanding Section 304. In particular, Section 403 of the bill enhances the authority of the Director of National Intelligence (DNI) to manage access to human intelligence information, one of the most important areas for intelligence reform.

Numerous commissions, and the Senate Select Committee on Intelligence's own reports on the 9/11 and Iraq Weapons of Mass Destruction intelligence failures, have noted that excessive compartmentation of human intelligence has contributed to several recent intelligence failures. For example, the Committee's Iraq WMD report found that in the years before Operation Iraqi Freedom, the CIA protected its Iraq weapons of mass destruction sources so well that some of the information collected was kept from the majority of analysts with a legitimate need to know. In a number of cases, CIA analysts were provided with sensitive information that was not made available to analysts who worked the same issues at other all-source analysis agencies. Despite these and other findings, little has been done to meaningfully improve this situation. CIA testimony to the Committee and its staff indicate that the agency has no intention of sharing this `sensitive' information on a wider basis, particularly with analysts outside the CIA.

Section 403 gives the DNI tools to correct this situation by providing him the authority to ensure the dissemination of intelligence information collected through human intelligence, including the underlying operational data necessary to fully understand that reporting, to appropriately cleared analysts or other intelligence officers throughout the Intelligence Community. The provision makes the DNI a neutral arbiter in making decisions about which analysts in the Intelligence Community have a need to know the information. It also makes him responsible for determining whether the risks of expanding access to cleared analysts are truly greater than the risks of keeping information so tightly compartmented that the analysts who need it to make informed judgements are kept in the dark.

Currently the process by which the Intelligence Community calculates the benefits and risks of sharing sensitive human intelligence remains too heavily skewed toward withholding information. Provision 403 will give the DNI the authority, but also the responsibility, to ensure that this calculation takes into account the terrible costs to national security when information is too heavily compartmented. This provision is a necessary step in the right direction toward improving human intelligence, information sharing, and analysis.

JOHN WARNER.

ADDITIONAL VIEWS OF SENATOR HATCH

The intelligence authorization process provides the essential mechanism by which the intelligence committees of the United States Congress provide direction and support to the Intelligence Community, in fulfillment of our statutory duty to provide oversight. I am pleased that the Committee is committed to reporting our annual legislation, as the failure to do so undermines our relevancy and fails the public's expectation of meaningful congressional oversight. Such authorizing legislation provides the central vehicle by which the Senate Select Committee on Intelligence authorizes expenditures and directs ongoing reform of the Intelligence Community, the need for which has been exposed in several Committee investigations since September 11, 2001, to include the Joint Inquiry Into the Terrorist Attacks of September 11, 2001 (released December, 2002) and, more recently, the Committee report on the U.S. Intelligence Community's Prewar Intelligence Assessments on Iraq (released July, 2004). Related to this continuing focus on reform, I note Section 403's requirement of the DNI to expand access to human intelligence in the Intelligence Community. Such initiatives included in our authorization vehicle demonstrate the active role this oversight Committee must maintain.

Other provisions in the bill create, in my opinion, unnecessary conflict with Executive prerogatives long-established on questions of access to particular notifications. For example, I refer the reader to the Vice Chairman's well-reasoned Additional Views on Section 304. But that is not the reason I have chosen to vote against this authorization. That reason is explained in the classified annex accompanying our report.

ORRIN G. HATCH.

SUPPLEMENTAL VIEWS OF VICE CHAIRMAN BOND AND SENATORS WARNER, CHAMBLISS, AND BURR

The most important means that the Senate Select Committee on Intelligence has for conducting effective oversight of the Intelligence Community is the annual intelligence authorization bill. As soon as the Republican Leader announced my appointment to be the Vice Chairman of the Committee for the 110th Congress, I sent a letter to then-Vice Chairman Rockefeller identifying the priorities upon which I believed the Committee should focus in the immediate future. At the top of my list was passing the Intelligence Authorization Act for Fiscal Year 2007 (last year's bill) because I believed that the need to pass an authorization bill overrode my immediate concern with a few of the bill's onerous provisions. I was happy to learn that Chairman Rockefeller was in complete agreement with me on this priority to pass our bill.

Chairman Rockefeller and I also agreed that the fastest way to return the bill to the Senate legislative calendar would be to adopt last year's bill, without amendment, as the Chairman/Vice Chairman mark. This approach resulted in a bill, report, and classified annex that were nearly identical to those that were passed out of the Committee last year, with only slight changes made necessary to update the text. The Committee's bill contains 62 substantive provisions. Most of these provisions are based upon, or derived from, the proposed bills submitted by the Executive branch for Fiscal Years 2006 and 2007. They contain important enhancements to Intelligence Community authorities and operational needs.

Notwithstanding these enhancements, there are two provisions, namely Sections 304 and 314, that I and some of my Republican colleagues voted against last year because we did not believe that they advanced the goal of Congressional oversight. Under current law, the Executive branch may exercise its discretion to protect sensitive intelligence sources and methods when notifying the Congressional Intelligence Committees about its intelligence activities and covert actions. In sharp contrast to the National Security Act of 1947, Section 304 imposes new requirements when the Executive branch determines that disclosure to less than the full membership of the Committees is appropriate. According to Section 304, in those cases the Executive branch must notify all members of the Congressional Intelligence Committees and provide them with a written summary of the activity, sufficient to permit the Members to assess the legality, benefits, costs, and advisability of such activities. Although we believe in comprehensive oversight, we also believe in working in comity with the Administration regarding the President's constitutional authority concerning what extremely sensitive details he determines to disclose from extremely sensitive programs. We believe there are other ways to ensure effective oversight of such programs without enshrining this provision in statute.

The interpretation of these requirements will likely only increase the tension between the Executive and Legislative branches over information access. The President has the constitutional responsibility to ensure the protection of sensitive intelligence sources and methods. Compartmentalization is one key means at his disposal to ensure that this important responsibility is met. Ultimately, Section 304 cannot resolve these conflicting concerns, because each branch will likely interpret the notice and written summary requirements to the detriment of the other. Either Congress will complain about the lack of detail provided in the required summaries or the President will argue that he had to provide the very detail that guided his initial decision to limit disclosure in the first place. Moreover, while there is substantial judicial authority for the breadth of Presidential powers in foreign affairs under Article II of the Constitution, it is unlikely that this conflict between the Executive and Legislative branches can be resolved by the courts, because it presents a political question that the courts may well refuse to address. That is why we believe this issue is best reserved for a separate discussion that should not jeopardize our entire Bill with the provision's inclusion here.

Additionally, Section 314 requires the Director of National Intelligence to submit a classified report to the Members of the Congressional Intelligence Committees which gives a full accounting of any clandestine prison or detention facility currently or formerly operated (to include locational data) by the United States government. The Executive branch has met its obligations to keep the Committee fully and currently informed about these clandestine detention facilities by briefing all of the Committee Members on the program. (The President publicly announced the existence of these facilities in September 2006.) The Section 314 report creates another unnecessary source of conflict between the Executive and Legislative branches. The level of detail required by the report, to include all locations of current and formerly operated sites, is simply not necessary for effective oversight, and will likely be resisted by the Executive branch. Moreover, such disclosure to Congress could have a negative impact on current and future relationships with certain allied foreign intelligence services and governments who have cooperated in this program with the understanding that their assistance would remain completely confidential. This backward looking provision continues a misguided practice of retroactive oversight.

Neither Section 304 nor Section 314 will advance the Committee's goal of providing meaningful oversight to the activities of the Intelligence Community. By creating unnecessary conflicts between the Legislative and Executive branches, these provisions will only distract the Committee and the Intelligence Community from focusing on other important matters. We therefore look forward to working with members on the floor and in conference to lessen likely conflicts with the Executive branch that could endanger the enactment of this bill into law.

Senator Warner joins in these supplemental views, except as they pertain to the discussion of Section 314.
Christopher S. Bond.
John Warner.
Saxby Chambliss.
Richard Burr.

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