[Senate Report 112-192]
[From the U.S. Government Publishing Office]
Calendar No. 475
112th Congress Report
SENATE
2d Session 112-192
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INTELLIGENCE AUTHORIZATION ACT FOR FISCAL YEAR 2013
_______
July 30, 2012.--Ordered to be printed
_______
Mrs. Feinstein, from the Select Committee on Intelligence,
submitted the following
R E P O R T
together with
ADDITIONAL AND MINORITY VIEWS
[To accompany S. 3454]
The Select Committee on Intelligence, having considered an
original bill (S. 3454) to authorize appropriations for Fiscal
Year 2013 for intelligence and intelligence-related activities
of the United States Government and the Office of the Director
of National Intelligence, the Central Intelligence Agency
Retirement and Disability System, and for other purposes,
reports favorably thereon and recommends that the bill do pass.
Classified Annex to the Committee Report
On February 13, 2012, acting pursuant to Section 364 of the
Intelligence Authorization Act for Fiscal Year 2010 (Public Law
111-259), the Director of National Intelligence (DNI) publicly
disclosed that the President's aggregate request for the
National Intelligence Program (NIP) for Fiscal Year 2013 is
$52.6 billion. Other than for limited unclassified
appropriations, primarily the Intelligence Community Management
Account, the classified nature of United States intelligence
activities precludes any further disclosure, including by the
Committee, of the details of its budgetary recommendations.
Accordingly, the Committee has prepared a classified annex to
this report that contains a classified Schedule of
Authorizations. The classified Schedule of Authorizations is
incorporated by reference in the Act and has the legal status
of public law. The classified annex is made available to the
Committees of Appropriations of the Senate and the House of
Representatives and to the President. It is also available for
review by any Member of the Senate subject to the provisions of
Senate Resolution 400 of the 94th Congress (1976).
Section-by-Section Analysis and Explanation
The following is a section-by-section analysis and
explanation of the Intelligence Authorization Act for Fiscal
Year 2013 that is being reported by the Committee.
Title I--Budget and Personnel Authorizations
Section 101. Authorization of appropriations
Section 101 lists the United States Government departments,
agencies, and other elements for which the Act authorizes
appropriations for intelligence and intelligence-related
activities for Fiscal Year 2013.
Section 102. Classified Schedule of Authorizations
Section 102 provides that the details of the amounts
authorized to be appropriated for intelligence and
intelligence-related activities and the applicable personnel
levels by program (expressed as full-time equivalent positions)
for Fiscal Year 2013 are contained in the classified Schedule
of Authorizations and that the classified Schedule of
Authorizations shall be made available to the Committees on
Appropriations of the Senate and House of Representatives and
to the President.
Section 103. Personnel ceiling adjustments
Section 103 is intended to provide additional flexibility
to the DNI in managing the civilian personnel of the
Intelligence Community. Section 103(a) provides that the DNI
may authorize employment of civilian personnel (expressed as
full-time equivalent positions) in Fiscal Year 2013 in excess
of the number of authorized full-time equivalent positions by
an amount not exceeding 3 percent of the total limit applicable
to each IC element under Section 102. The DNI may do so only if
necessary to the performance of important intelligence
functions.
Section 103(b) requires the DNI to establish guidelines
that would ensure a uniform and accurate method of counting
certain personnel under a system of personnel levels expressed
as full-time equivalents. The DNI has issued such a policy.
Subsection (b) confirms in statute the obligation of the DNI to
establish these guidelines.
The DNI must report the decision to allow an IC element to
exceed the personnel ceiling in advance to the congressional
intelligence committees.
Section 104. Intelligence Community Management Account
Section 104 authorizes appropriations for the Intelligence
Community Management Account (ICMA) of the DNI and sets the
authorized full-time equivalent personnel levels for the
elements within the ICMA for Fiscal Year 2013.
Subsection (a) authorizes appropriations of $542,346,000
for Fiscal Year 2013 for the activities of the ICMA. Subsection
(b) authorizes 827 full-time equivalent personnel for elements
within the ICMA for Fiscal Year 2013 and provides that such
personnel may be permanent employees of the Office of the
Director of National Intelligence (ODNI) or detailed from other
elements of the United States Government.
Subsection (c) authorizes additional appropriations and
full-time equivalent personnel for the classified Community
Management Account as specified in the classified Schedule of
Authorizations and permits the funding for advanced research
and development to remain available through September 30, 2014.
Title II--Central Intelligence Agency Retirement and Disability System
Section 201. Authorization of appropriations
Section 201 authorizes appropriations in the amount of
$514,000,000 for Fiscal Year 2013 for the Central Intelligence
Agency (CIA) Retirement and Disability Fund.
Title III--General Intelligence Community Matters
Section 301. Restriction on conduct of intelligence activities
Section 301 provides that the authorization of
appropriations by the Act shall not be deemed to constitute
authority for the conduct of any intelligence activity that is
not otherwise authorized by the Constitution or laws of the
United States.
Section 302. Increase in employee compensation and benefits authorized
by law
Section 302 provides that funds authorized to be
appropriated by this Act for salary, pay, retirement, and other
benefits for federal employees may be increased by such
additional or supplemental amounts as may be necessary for
increases in compensation or benefits authorized by law.
Section 303. Non-reimbursable details
Section 303 amends Section 113A of the National Security
Act of 1947 (50 U.S.C. 404h-1) to increase the length of time
an officer or employee of the federal government can be
detailed to the staff of an element of the Intelligence
Community funded through the NIP from two years to three. In
addition, Section 303 clarifies that a non-reimbursable detail
made under Section 113A shall not be considered an augmentation
of the appropriations of the receiving element of the
Intelligence Community.
The DNI requested that an extension of the length of
service from two years to three years be made for members of
the Armed Forces detailed to an element of Intelligence
Community. This request was intended to align Section 113A with
requirements for joint duty assignments among the military.
Section 664(a) of Title 10 provides that joint duty assignments
for military officers, other than general and flag officers,
shall be no less than three years. The Committee determined
that the flexibility of a three-year length of service should
be available for civilian employees as well as military
officers.
Section 304. Software licensing
Section 304 requires the chief information officer for an
element of the Intelligence Community to conduct an inventory
of software licenses held by such element, including those
utilized and unutilized, by the element. This inventory is to
be conducted in consultation with the Chief Information Officer
of the Intelligence Community (CIO) and completed within 120
days of enactment. Not later than 180 days after enactment, the
CIO shall provide the congressional intelligence committees
with a copy of the reports along with any comments the CIO
wishes to provide. The CIO shall transmit any portion of a
report involving a component of a department of the U.S.
government to the congressional committees with jurisdiction
over such department simultaneously with submission of such
report to the congressional intelligence committees.
Section 305. Improper Payments Elimination and Recovery Act of 2010
compliance
Section 305 requires the DNI and the directors of the CIA,
the Defense Intelligence Agency (DIA), the National Geospatial-
Intelligence Agency (NGA), and the National Security Agency
(NSA) each to develop a corrective action plan, with major
milestones, that delineates how such agencies will achieve
compliance with the Improper Payments Elimination and Recovery
Act of 2010, not later than September 30, 2013. Section 305(b)
requires the relevant inspectors general to review the
corrective action plan and assess whether it is likely to lead
to compliance. Each assessment is to be provided to the
congressional intelligence committees. The corrective action
plans and inspector general assessments involving the DIA, NGA,
and NSA shall also be submitted to the armed services
committees of the Senate and House of Representatives.
Section 306. Authorities of the Inspector General of the Intelligence
Community
Section 306 authorizes the Inspector General of the
Intelligence Community (IC IG) to designate certain officers or
employees in investigative positions within the Office of the
Inspector General as law enforcement officers solely for the
purpose of certain federal law enforcement retirement and
pension benefit laws. The DNI requested this authority for the
benefit of the CIA Inspector General (CIA IG) based upon the
difficulties the CIA IG faces in recruiting and retaining
experienced professional investigators from among the law
enforcement and inspectors general community. The bill includes
this authority for the CIA IG in Section 401. Section 306
clarifies that this same authority also is available to the IC
IG.
Section 307. Modification of reporting schedule
Section 307 changes the dates by which the IC IG and the
CIA IG are required to prepare and submit semiannual reports on
the activities of their offices from a calendar year basis to a
fiscal year basis. This change will align these reporting
requirements with the reporting requirements of other
inspectors general in the Intelligence Community and facilitate
joint audits, inspections and investigations.
Section 308. Repeal or modification of certain reporting requirements
Congress frequently requests information from the
Intelligence Community in the form of reports, the contents of
which are specifically defined by statute. The reports prepared
pursuant to these statutory requirements provide Congress with
an invaluable source of information about specific matters of
concern.
The Committee recognizes, however, that congressional
reporting requirements, and particularly recurring reporting
requirements, can place a significant burden on the resources
of the Intelligence Community. The Committee is therefore
reconsidering these reporting requirements on a periodic basis
to ensure that the reports that have been requested are the
best mechanism for the Congress to receive the information it
seeks. In some cases, annual reports can be replaced with
briefings or notifications that provide the Congress with more
timely information and offer the Intelligence Community a
direct line of communication to respond to congressional
concerns.
In response to a request from the DNI, the Committee
examined a set of recurring reporting requirements nominated by
the Intelligence Community including those which arise from
legislation reported or managed by committees other than the
congressional intelligence committees.
In addition, the Committee consulted directly with these
other Senate committees that receive reports identified by the
DNI. Section 308 eliminates eight reports that were burdensome
to the Intelligence Community when the information in the
reports could be obtained through other means or was no longer
considered relevant to current concerns. Section 308 also
modifies the period for two reporting requirements.
Title IV--Matters Relating to the Central Intelligence Agency
Section 401. Authorities of the Inspector General for the Central
Intelligence Agency
Section 401 authorizes the CIA IG to designate certain
officers or employees in investigative positions within the
Office of the Inspector General as law enforcement officers
solely for the purpose of certain federal law enforcement
retirement and pension benefit laws. The DNI requested this
authority for the benefit of the CIA IG based upon the
difficulties of the CIA IG in recruiting and retaining
experienced professional investigators from the law enforcement
and inspectors general community.
The Committee considered this request of the DNI during the
development of the Fiscal Year 2012 bill. Section 415 of the
Intelligence Authorization Act for Fiscal Year 2012 (Public Law
112-87) directed the Inspector General of the Office of
Personnel Management (OPM IG) to do a study of the personnel
authorities and available personnel benefits of the CIA IG to
include: (1) identification of any barriers or disincentives to
the recruitment or retention of experienced investigators
within the CIA IG's office; and (2) a comparison of the
personnel authorities of the CIA IG with those of inspectors
general of other agencies.
The report of the OPM IG was completed in June 2012 and
confirmed that the CIA IG's inability to designate certain
positions as law enforcement officers for retirement purposes
``is a disincentive to the recruitment of experienced criminal
investigators.'' With respect to the CIA IG's mission-related
critical needs, the report noted that the CIA IG, like most
inspectors general, investigates ``a mixture of criminal,
civil, and administrative cases'' to include assault, contract
fraud, illegal gratuities/bribery, possession of child
pornography, sexual assault, theft, and weapons violations. The
OPM IG concluded that ``in order for the CIA Inspector General
to fully achieve his mission of conducting independent and
effective oversight of CIA operations and programs, he needs to
select and retain professionally trained criminal
investigators. To do so, his office must have the authority to
offer potential candidates the same retirement benefits that
they would receive in essentially identical positions at other
[inspectors general offices].''
The Committee held a hearing with the IC IG, the CIA IG,
and inspectors general from three other intelligence agencies
on June 5, 2012, concerning issues facing inspectors general
within the Intelligence Community, including questions
concerning the inability of the IC IG and the CIA IG to offer
law enforcement retirement and pension benefits to their
officers and employees. The Committee expects be kept informed
of the plans of the IC IG and the CIA IG to exercise this
authority upon enactment.
Section 402. Working capital fund amendments
Section 402 amends Section 21 of the Central Intelligence
Agency Act of 1949 (50 U.S.C. 403u) to provide authority for
the service providers under the CIA Central Services Program to
use resources to make their services known to their authorized
customer base through government communication channels, but
clarifies this authority shall not be used to distribute gifts
or promotional items. In addition, Section 402 authorizes
service providers to deposit receipts from the sale of their
recyclable materials into the CIA working capital fund.
Title V--Preventing Unauthorized Disclosures of Classified Information
Section 501. Notification regarding the authorized public disclosure of
national intelligence
Section 501 requires government officials responsible for
making certain authorized disclosures of national intelligence
or intelligence related to national security to notify the
congressional intelligence committees concurrent with such
disclosures.
This provision is intended to ensure that the intelligence
committees are made aware of authorized disclosures of national
intelligence or intelligence related to national security that
are made to media personnel or likely to appear in the press,
so that, among other things, these authorized disclosures may
be distinguished from unauthorized ``leaks.''
Section 501(c) provides that the notification requirement
does not apply to a disclosure made pursuant to statutory
requirements, in connection with civil, criminal or
administrative proceedings, as a result of a declassification
review process under Executive Order 13526, or to cleared
government representatives with a need to know.
Section 502. Requirement to record authorized disclosures of classified
information
Section 502 requires that the head of each element of the
Intelligence Community maintain a record of certain authorized
disclosures of classified information and to make such records
available for review by the congressional intelligence
committees.
This provision is intended to ensure that Intelligence
Community elements maintain a record of authorized disclosures
of classified information that are made to media personnel or
likely to appear in the press, which may facilitate the
investigation of unauthorized disclosures of classified
information.
Section 503. Procedures for conducting administrative investigations of
unauthorized disclosures
Section 503 directs the DNI to establish procedures, within
90 days, to be implemented by each element of the Intelligence
Community, for the conduct of investigations of unauthorized
disclosures of classified information.
On May 7, 2011, the DNI established procedures and guidance
for conducting investigations of unauthorized disclosures.
These implemented a series of reforms relating to the conduct
of administrative investigations of unauthorized disclosures
and the prioritization of crimes reports.
Section 503 codifies a statutory mandate for these
procedures and requires that they incorporate certain
additional elements not present in the existing procedures and
guidance.
Section 504. Assessment of procedures for detecting and preventing
unauthorized disclosures
Section 504(a) directs the DNI to prepare an assessment to
be provided to the congressional intelligence committees,
within 120 days, regarding the feasibility of extending the use
of the polygraph, the benefits of extending automated insider
threat detection capabilities, and actions that could be taken
to address improper classification.
Section 504(b) directs the IC IG to perform an assessment,
within 120 days, of the effectiveness of the process used by
each element of the Intelligence Community for preventing,
detecting, and investigating unauthorized disclosures of
classified information and describe any best practices that
could be replicated throughout the Intelligence Community.
Section 505. Prohibition on certain individuals serving as consultants
Section 505 prohibits certain persons possessing an active
security clearance from entering into contracts or other
binding agreements with the media in order to provide analysis
or commentary on matters concerning classified intelligence
activities or intelligence related to national security.
Section 505 also prohibits certain persons who formerly
possessed an active security clearance for access to top
secret, sensitive compartmented information from entering into
such contracts or agreements for a period of one year after
they leave government service.
This provision is intended to restrict the practice of
current and former cleared government personnel appearing in
media broadcasts in order to discuss matters concerning
classified intelligence activities.
Section 506. Limitation on persons authorized to communicate with the
media
Section 506 provides that for each element of the
Intelligence Community, only the Director and Deputy Director
of such element and individuals in the offices of public
affairs who are specifically designated by the Director may
provide background or off-the-record information regarding
intelligence activities to the media.
Section 506(b) clarifies that this section does not
prohibit an officer or employee of an element of the
Intelligence Community from providing authorized, unclassified,
on-the-record briefings to the media, or to any person
affiliated with the media. Thus, this provision would not
prohibit an Intelligence Community official from providing
necessary threat or other unclassified information to the
public, provided the official was acting in his or her official
capacity and was authorized to speak to the media on-the-
record.
Section 507. Responsibilities of Intelligence Community personnel with
access to classified information
Section 507 provides that, within 120 days, the DNI shall
prescribe regulations and requirements specifying the
responsibilities of Intelligence Community personnel with
access to classified information, including regulations and
other requirements relating to contact with the media, non-
disclosure agreements, prepublication review, and disciplinary
actions.
Section 508. Report on improvements to the criminal process for
investigating and prosecuting unauthorized disclosures of
classified information
Section 508 requires the Attorney General to prepare a
report for the congressional intelligence and judiciary
committees, within 180 days, on the effectiveness of and
potential improvements to the process for investigating and
prosecuting unauthorized disclosures of classified information
and to report on potential improvements to this process. In the
report, the Attorney General is required to address potential
modifications to the process used by elements of the
intelligence community to submit crimes reports of unauthorized
disclosures of classified information to the Attorney General,
potential modifications to the policies of the Department of
Justice on issuing subpoenas directed at members of the news
media, and potential modifications to the Classified
Information Procedures Act.
Section 509. Improving insider threat initiatives
Section 509 requires that the head of each element of the
Intelligence Community designate an insider threat program
manager with responsibility for developing a comprehensive
insider threat program management plan.
The Committee has determined that existing intelligence
community efforts to counter insider threats are not centrally
managed so as to effectively allocate resources between and
among the disciplines of counterintelligence, physical
security, information security, and human resources.
Section 509(a) specifies that an insider threat program
manager designated by an element head shall have access to all
relevant information regarding the allocation of resources to
efforts by such element to counter insider threats, but that
such access does not necessarily need to include information
concerning specific counterintelligence or security
investigations, which may need to remain compartmented.
Nonetheless, the head of an element, at his or her discretion,
may conclude that the insider threat program manager for the
element should have access to information concerning specific
counterintelligence or security investigations and authorize
such access.
Sections 509(b) and 509(c) set forth milestones for the
development and implementation of a comprehensive insider
threat program management plan for each element, including a
requirement that the plan be approved by the head of the
element and the DNI, notified to the congressional intelligence
committees, and implemented within two years of the date of
enactment of the Act.
Section 510. Automated insider threat detection program
Section 510 extends by one year the milestones for
establishment of an automated insider threat detection program
under Section 402 of the Intelligence Authorization Act for
Fiscal Year 2011 (Public Law 112-18). The administration had
requested a two-year extension of the milestone for ``initial
operating capability'' and a three-year extension of the
milestone for ``full operating capability.'' The Committee,
however, believes that the Intelligence Community must move
more rapidly toward establishment of this program.
Section 511. Surrender of certain benefits
Section 511 authorizes the surrender of government
contributions made to an individual's current or future federal
pension benefits if it is determined that the individual
violated the prepublication review requirements of his signed
non-disclosure agreement in a manner that disclosed classified
information to an unauthorized person or entity. Section 511(a)
requires the DNI to publish regulations, in coordination with
the head of each element of the Intelligence Community, which
set forth the administrative procedures applicable to an
employee who violates the written terms of his signed non-
disclosure agreement. In order to ensure that the government's
procedures governing classified information are administered in
an integrated manner, regulations published under Section 511
shall be consistent with any procedures established by
Executive order or regulation under Section 801 of the National
Security Act.
Section 511(b) requires that such non-disclosure agreements
will: (1) prohibit an employee from disclosing classified
information without authorization; (2) require the employee to
comply with all prepublication review requirements; (3) specify
appropriate disciplinary action, including the surrender of any
current or future federal government pension benefits, to be
taken against the employee if the DNI or the head of the
employee's element of the Intelligence Community determines
that the employee knowingly violated the prepublication review
requirements contained in the non-disclosure agreement in a
manner that disclosed classified information to an unauthorized
person or entity; and (4) describe procedures for making and
reviewing disciplinary determinations in a manner consistent
with the due process and appeal rights otherwise available to
an employee who is subject to the same or similar disciplinary
action under existing law. These non-disclosure agreement
requirements are consistent with and do not supersede, conflict
with, or otherwise alter Intelligence Community employee
obligations, rights, or liabilities established by federal law,
statute, or regulation. In particular, the Committee notes that
this provision has no impact on any laws relating to
whistleblowers. Unauthorized disclosure of classified
information to the media or the public is not permissible under
any existing whistleblower protection laws, and would therefore
not be covered under this provision.
Section 511 provides a mechanism for the DNI to enforce the
contractual obligations contained in a non-disclosure agreement
with respect to prepublication review requirements, for both
current and former Intelligence Community employees. Such
agreement may be enforced either during or subsequent to
employment. The use of the term ``surrender'' is crucial to
this contractual concept. Section 511 is not intended to give
the DNI the authority to revoke or take pension benefits on his
own and without reference to the agreement between the employee
and the Intelligence Community element. Rather, each individual
employee may now be held to the promise to surrender federal
government pension benefits if it is determined, in accordance
with the applicable administrative procedures, that the
individual knowingly violated the prepublication review
requirements in a manner that disclosed classified information
to an unauthorized person or entity. It is important to note
that there is no requirement that the disclosure of classified
information also be done knowingly. The Committee believes that
imposing such a requirement would allow those who purposely
bypass the prepublication review procedures to claim that they
did not reasonably know that their published information was
classified--a fact about which they would have been informed
had they complied with their prepublication requirements in the
first place.
For the purposes of Section 511, the term ``federal
government pension benefit'' includes the specific government
contributions to an employee's Federal Government pension plan,
in its fair market value. The term does not include any Social
Security benefits, Thrift Savings Plan benefits or
contributions, or any contribution by a person to a federal
government pension plan, in their fair market value. These
limitations ensure that the only part of the individual's
pension that is subject to surrender under the authorities of
this provision is that portion funded by U.S. taxpayers.
The Committee notes that the DNI expressed objections to a
similar provision that appeared in Section 403 of S. 719, the
Intelligence Authorization Act for Fiscal Year 2011, as
reported by the Committee on April 4, 2011. The DNI's letter of
April 12, 2011, specifying those objections, may be found in
the Appendix.
Section 512. Prohibition on security clearances for individuals who
disclose to the public evidence or information on United States
covert actions
Section 512 provides that, consistent with administrative
procedures and due process afforded under otherwise applicable
laws and regulations, individuals employed by, or under
contract to, the Federal Government, or possessing an active
security clearance, may not receive, retain, or otherwise
possess a security clearance if they are determined to have
knowingly made an unauthorized public disclosure of classified
information concerning a classified covert action. This
provision would not apply to such authorized disclosures of
classified information concerning a classified covert action
that are made between and among individuals possessing the
requisite security clearances and need to know. Further, the
Committee does not intend that approval by an original
classification authority must be required for each individual
disclosure in order to be considered ``authorized.''
Title VI--Other Matters
Section 601. Authorization of the Homeland Security Intelligence
Program
Section 601 authorizes the Homeland Security Intelligence
Program (HSIP) within the Department of Homeland Security for
activities of the Office of Intelligence and Analysis (OIA)
that serve predominantly a departmental mission. The OIA is
currently funded through the NIP. The Committee supports the
request of the Secretary and DNI to fund OIA through the NIP
and a new HSIP but is continuing to study the question of
whether other intelligence activities of the Department should
be included in the HSIP. The Committee intends to continue
oversight of and authorize the HSIP.
Section 602. Extension of National Commission for the Review of the
Research and Development Programs of the United States
Intelligence Community
Section 602 extends the date by which the National
Commission for the Review of the Research and Development
Programs of the United States Intelligence Community is
required to submit a report on its findings from ``not later
than one year after the date on which all members of the
Commission are appointed pursuant to Section 701(a)(3) of the
Intelligence Authorization Act for Fiscal Year 2010'' to not
later than March 31, 2013, which is effectively one year after
the Commission was able to begin its review. The extension was
requested by the co-chairs of the Commission in a letter to the
Committee.
Section 603. Public Interest Declassification Board
The Public Interest Declassification Board (PIDB) was
created in the Intelligence Authorization Act for Fiscal Year
2000 to promote public access to a thorough, accurate, and
reliable documentary record of significant United States
national security decisions and activities. Section 603 extends
the authorization for the PIDB to 2018 and eliminates certain
limitations on the length of service of members of the Board.
Section 604. Provision of classified opinions of the Office of Legal
Counsel to Congress
Section 604 requires the Attorney General to provide
certain information concerning opinions of the Office of Legal
Counsel (OLC) at the Department of Justice to the congressional
intelligence committees.
Section 604(a) requires the Attorney General, in
coordination with the DNI, to provide the congressional
intelligence committees with a copy of every classified OLC
opinion that was provided to an element of the Intelligence
Community on or after September 11, 2001.
Section 604(b) requires the Attorney General, in
coordination with the DNI, to provide the congressional
intelligence committees with an annual listing of every OLC
opinion provided to an element of the Intelligence Community,
whether classified or unclassified.
Section 604(c) provides an exception to the disclosure
requirements in sections 604(a) and (b) where the President
determines that it is essential to limit access to a covert
action finding under section 503(c)(2) of the National Security
Act. In such cases, the President may limit access to
information concerning such a finding that is subject to
disclosure under subsection (a) or (b) to those members of
Congress who have been granted access to the relevant finding.
Section 604(d) provides a second exception to the
disclosure requirements in sections 604(a) and (b) where the
President determines that information subject to disclosure
under subsection (a) or (b) is subject to Executive privilege.
In such cases, the Attorney General must notify the
congressional intelligence committees, in writing, of the legal
justification for the assertion of the privilege prior to the
date by which the opinion or listing is required to be
disclosed.
The Committee regularly conducts oversight of intelligence
activities that are the subject of one or more OLC legal
opinions. The Committee regards access to these legal opinions
as necessary to the performance of its oversight functions and
often requests access to such opinions when the committee is
made aware of their existence.
While the Committee in general is kept apprised of the
legal basis for U.S. intelligence activities, neither the
Department nor the Intelligence Community routinely
accommodates the Committee's requests for full OLC opinions.
Furthermore, oral or written summaries of the legal basis for
U.S. intelligence activities often do not provide the level of
detail necessary for the Committee to fully carry out its
oversight functions, as such summaries often omit relevant
information, including the application of law to the specific
facts present in a particular intelligence activity.
Finally, neither the Department nor the Intelligence
Community regularly advises the Committee of the existence of
OLC opinions that are relevant to the Committee's oversight
functions. This presents a particular impediment to the
Committee's oversight function, as the Committee cannot request
access to legal analysis when it is not made aware that such
analysis exists.
The Committee recognizes that some OLC opinions are
entitled to Executive privilege. The Committee further
recognizes that access to information concerning certain
compartmented covert action programs must be restricted.
Therefore, subsections 604(c) and (d) provide exceptions for
such cases.
Section 605. Technical amendments related to the Office of the Director
of National Intelligence
Sections 2302 and 3132 of Title 5 of the United States Code
exclude from the definition of ``agency'' under those chapters
certain specifically listed agencies such as the CIA. In
addition, Sections 2302 and 3132 exclude from the definition of
``agency'' those executive agencies that the President
determines have as their principal function ``the conduct of
foreign intelligence or counterintelligence activities.''
Section 605 amends the definition of agency in Sections 2302
and 3132 to expressly identify the ODNI as an agency excluded
from the definition of ``agency'' under those chapters.
Section 606. Technical amendment for definition of intelligence agency
Title VI of the National Security Act of 1947 imposes
criminal penalties for the disclosure of the identity of covert
agents of an intelligence agency. The current definition of an
``intelligence agency'' does not include the
counterintelligence elements of the Department of Defense or
the intelligence and counterintelligence components of other
elements of the Intelligence Community despite the fact that
these components may be conducting counterintelligence
operations jointly with the Federal Bureau of Investigation or
under their own independent authority. Section 606 thus amends
Section 606(5) of the National Security Act of 1947 (50 U.S.C.
426) to revise the definition of ``intelligence agency'' to
include all elements of the Intelligence Community, as found in
Section 3(4) of the National Security Act.
Section 607. Budgetary effects
Section 607 provides that the budgetary effects of this
Act, for the purpose of complying with the Statutory Pay-As-
You-Go-Act of 2010, shall be determined by reference to the
latest statement titled ``Budgetary Effects of PAYGO
Legislation'' for this Act, submitted for printing in the
Congressional Record by the Chairman of the Senate Budget
Committee, provided that such statement has been submitted
prior to the vote on passage.
Committee Comments
Unauthorized Disclosures of Classified Information
The Committee is gravely concerned by both the quantity and
substance of unauthorized disclosures of classified information
(``leaks'') that continue to appear in media. The damage caused
by such unauthorized disclosures cannot be overstated. Too many
intelligence sources and methods have been compromised, ranging
from counterintelligence capabilities to intelligence assets to
foreign government relationships. As a result, terrorists and
foreign adversaries have learned to improve their tactics, and
American lives and the American national interest have been
placed at greater risk.
The Committee also recognizes that such leaks are not
limited to any particular agency, department, or branch of
government. Moreover, the Committee is aware that the
publication of classified information is not always a direct
result of leaks by government insiders. Journalists may obtain
such information from foreign sources or eyewitness (or a
combination of sources). Or, as is sometimes the case,
journalists may report inaccurate information that only appears
to be classified.
The Committee-reported bill includes several legislative
provisions that will help to prevent and detect unauthorized
disclosures of classified information, identify those
responsible, and ensure that they are appropriately
disciplined. The Committee will continue to pay close attention
to the issue of ``leaks'' and give careful consideration to
other legislative measures that may be effective.
The problem of leaks, however, does not readily lend itself
to any single set of solutions. Measures taken must be balanced
as efforts to prevent leaks by limiting access to classified
information may also work to limit the availability of vital
intelligence to analysts and policy makers who have a need to
know. Aggressive efforts to identify and prosecute leakers must
be tempered by the need to protect rights to freedom of speech,
freedom of the press, and due process that are enshrined in the
Bill of Rights. Therefore, the Committee calls upon the
Executive branch to be vigilant in the protection of classified
information, to aggressively but responsibly investigate all
unauthorized disclosures of classified information within the
bounds of the law, and to prosecute or otherwise punish those
found to be responsible for such disclosures. As is its
mandate, the Committee will oversee these measures to ensure
that efforts to stem the tide of leaks remain a priority.
Finally, the Committee calls upon those in all branches of
government who have been entrusted with classified information
to be mindful that they have taken an oath to protect that
information, that they are duty bound to honor that oath, and
that the security of the nation rests on their doing so.
Offices of Inspectors General Funded in the National Intelligence
Program
The Committee is concerned about the stability of funding,
personnel, and resources for the Offices of Inspectors General
(OIGs) within the Intelligence Community and the policies and
practices that may impede the mission or independence of these
offices.
To ensure that agencies do not realign or cut resources
from the vital oversight activities of the OIGs once Congress
has determined an OIG's funding and personnel levels, the
Committee considers these levels to be congressional interest
items. In addition, the Committee expects that the DNI and
other heads of intelligence agencies will identify the budgets
of the OIGs within the agencies as distinct projects in future
budget requests.
Auditability
While the Committee recognizes the Intelligence Community's
notable efforts towards audibility in recent years, much
remains to be achieved. Auditability is not just the
responsibility of Intelligence Community financial management
personnel--there must be a sustained commitment across the
leadership of Intelligence Community agencies to align the
resources and personnel efforts necessary to achieve success.
Additionally, contracting officers, approving officers and
budget officers must fully adopt the pursuit of auditability as
a personal responsibility.
The National Reconnaissance Office (NRO) has received an
unqualified audit opinion from its independent auditors for
three years. In order for the other major agencies of the
Intelligence Community to achieve unqualified audit opinions by
2016, critical work must be accomplished in Fiscal Year 2013.
This requires the leadership of the ODNI, CIA, DIA, NSA and NGA
to inculcate a sense of urgency, not just among financial
managers, but also across the entire organization, to assure
continued efforts are made to reach the ultimate goal of
achieving ``clean'' audit statements.
Department of Defense Intelligence Analysis
As part of its oversight activities, the Committee reviews
analysis produced by intelligence elements across the United
States Government. The Committee is pleased to have daily
access to the Joint Staff J2 Daily Intelligence Briefing but is
concerned that daily and periodic intelligence produced by the
Joint Intelligence Operations Centers (JIOCs) of the combatant
commands (COCOMs) is not being provided to the Committee on
regular basis.
The COCOM JIOCs make a significant contribution to the
government's overall intelligence analysis. Each of the
regional and functional COCOMs are members of the Defense
Intelligence Analysis Program managed by the DIA with clearly
defined all-source analytic responsibilities. The intelligence
products of the COCOM JIOCs should be made available to the
congressional intelligence committees. The Committee thus
directs the Director of DIA and the Under Secretary of Defense
for Intelligence to ensure that the congressional intelligence
committees are regularly provided with daily and periodic
intelligence products from the JIOCs.
Space Launch
The Committee remains concerned over space launch costs,
particularly of the Air Force's Evolved Expendable Launch
Vehicle (EELV) program. Costs have increased dramatically over
several years. Fortunately, actions by both the United Launch
Alliance (ULA) and the U.S. Air Force seem to have curtailed
this cost growth in the near term. The Committee encourages
both these groups to continue to seek efficiencies in the EELV
program.
The Air Force and the NRO remain committed to the EELV
program and are entering into agreements to buy Atlas-V and
Delta-IV rockets in multi-booster blocks in an attempt to
stabilize the EELV industrial base and garner further savings.
However, at least one new entrant is demonstrating enough
potential to enable competition.
The Committee believes it is in the nation's economic and
national security interests to promote competition among U.S.
space launch providers, and to do so as soon as potential
competitors are viable.
The Committee understands that costs advertised by new
space launch entrants may increase as those companies integrate
rigorous Air Force processes, which, while suited for ensuring
high levels of mission assurance, add substantial costs
compared to those used in the commercial space launch sector.
One private space launch provider, SpaceX, has spent a
total of $1.2 billion since its inception in 2002. This amount
includes developing the Falcon 1 rocket, Falcon 9 rocket, and
Dragon capsule; building out the manufacturing facility in
Hawthorne, California, the Rocket Development Facility in
McGregor, Texas, and the launch complex in Kwajalein;
construction to date of Space Launch Complex 40 at Cape
Canaveral; and total costs of multiple Falcon 1 flights and
three Falcon 9 flights. The U.S. government has much to gain
with the success of SpaceX and the commercial orbital
transportation services and cargo resupply services programs
are infusing critical investments in the company.
The current EELV launch capability contract totals
approximately $1.2 billion per year just to maintain the
infrastructure to launch an EELV. Launch costs for each
satellite are additive to that amount.
The Committee believes the government should continue to
position itself for the use of alternative launch providers
pending demonstrations of reliability and performance in the
EELV program. It is the hope that the government can reduce
costs through competition while maintaining a strong and
healthy industrial base to ensure access to space for national
security missions.
As the NRO works with alternative providers, the Committee
directs the Office to place each of its planned launches into
one of the three categories in the risk-based certification
framework.
Committee Action
On July 24, 2012, a quorum being present, the Committee met
to consider the bill and amendments. The Committee took the
following actions:
Votes on amendments to committee bill, this report and the classified
annex
By unanimous consent, the Committee made the Chairman and
Vice Chairman's bill and classified annex the base text for
purposes of amendment. The Committee also authorized the staff
to make technical and conforming changes in the bill, report,
and annex, following the completion of the mark-up.
By a voice vote, the Committee agreed to the following en
bloc amendments to: (1) expand congressional reporting of
comprehensive insider threat program management plans, by
Chairman Feinstein and Vice Chairman Chambliss; (2) amend the
classified Schedule of Authorizations and annex, by Senator
Coats, Senator Mikulski, and Senator Warner; (3) prohibit
security clearances for those who knowingly disclose to the
public classified information on U.S. covert actions, by
Senator Burr; (4) amend the classified annex, by Senator
Nelson; (5) amend the classified annex, by Senator Risch, as
amended by Chairman Feinstein; (6) amend the classified
Schedule of Authorizations and annex, by Senator Warner and
Senator Udall as amended by Chairman Feinstein; (7) amend the
classified annex, by Senator Warner; (8) amend the classified
Schedule of Authorizations and annex, by Senator Rubio; (9)
amend the classified annex, by Senator Rubio; (10) amend the
classified annex, by Senator Rubio; (11) amend the classified
Schedule of Authorizations and annex, by Senator Udall as
amended by Vice Chairman Chambliss; (12) amend the classified
Schedule of Authorizations and annex, by Senator Nelson as
amended by Chairman Feinstein; and (13) amend the classified
Schedule of Authorizations and annex, by Senator Blunt.
By a vote of 8 ayes to 7 noes, the Committee adopted an
amendment by Vice Chairman Chambliss to the managers' amendment
to provide for the surrender of government pension benefits by
Intelligence Community employees or former employees who
knowingly violate pre-publication requirements in non-
disclosure agreements in a manner that disclosed classified
information. The votes in person or by proxy were as follows:
Chairman Feinstein--no; Senator Rockefeller--no; Senator
Wyden--no; Senator Mikulski--no; Senator Nelson--aye; Senator
Conrad--no; Senator Udall--no; Senator Warner--no; Vice
Chairman Chambliss--aye; Senator Snowe--aye; Senator Burr--aye;
Senator Risch--aye; Senator Coats--aye; Senator Blunt--aye;
Senator Rubio--aye.
By a vote of 15 ayes to zero noes, the Committee adopted
the managers' amendment as amended. The votes in person or by
proxy were as follows: Chairman Feinstein--aye; Senator
Rockefeller--aye; Senator Wyden--aye; Senator Mikulski--aye;
Senator Nelson--aye; Senator Conrad--aye; Senator Udall--aye;
Senator Warner--aye; Vice Chairman Chambliss--aye; Senator
Snowe--aye; Senator Burr--aye; Senator Risch--aye; Senator
Coats--aye; Senator Blunt--aye; Senator Rubio--aye.
By a vote of 10 ayes to 5 noes, the Committee adopted an
amendment by Chairman Feinstein to authorize the CIA Inspector
General and the Inspector General of the Intelligence Community
to make individuals who hold investigative positions within
their offices eligible for federal law enforcement retirement
benefits. The votes in person or by proxy were as follows:
Chairman Feinstein--aye; Senator Rockefeller--aye; Senator
Wyden--aye; Senator Mikulski--aye; Senator Nelson--aye; Senator
Conrad--aye; Senator Udall--aye; Senator Warner--aye; Vice
Chairman Chambliss--no; Senator Snowe--aye; Senator Burr--no;
Senator Risch--no; Senator Coats--no; Senator Blunt--aye;
Senator Rubio--no.
By a vote of 15 ayes to zero noes, the Committee adopted an
amendment to the classified annex by Senator Nelson. The votes
in person or by proxy were as follows: Chairman Feinstein--aye;
Senator Rockefeller--aye; Senator Wyden--aye; Senator
Mikulski--aye; Senator Nelson--aye; Senator Conrad--aye;
Senator Udall--aye; Senator Warner--aye; Vice Chairman
Chambliss--aye; Senator Snowe--aye; Senator Burr--aye; Senator
Risch--aye; Senator Coats--aye; Senator Blunt--aye; Senator
Rubio--aye.
By unanimous consent, the Committee agreed to an amendment
to the classified annex by Senator Risch, as amended by
Chairman Feinstein.
Vote to report the committee bill
The Committee voted to report the bill as amended, by a
vote of 14 ayes and 1 no. The votes in person or by proxy were
as follows: Chairman Feinstein--aye; Senator Rockefeller--aye;
Senator Wyden--no; Senator Mikulski--aye; Senator Nelson--aye;
Senator Conrad--aye; Senator Udall--aye; Senator Warner--aye;
Vice Chairman Chambliss--aye; Senator Snowe--aye; Senator
Burr--aye; Senator Risch--aye; Senator Coats--aye; Senator
Blunt--aye; Senator Rubio--aye.
Compliance With Rule XLIV
Rule XLIV of the Standing Rules of the Senate requires
publication of a list of any ``congressionally directed
spending item, limited tax benefit, and limited tariff
benefit'' that is included in the bill or the committee report
accompanying the bill. Consistent with the determination of the
Committee not to create any congressionally directed spending
items or earmarks, none have been included in the bill, the
report to accompany it, or the classified schedule of
authorizations. The bill, report, and classified schedule also
contain no limited tax benefits or limited tariff benefits.
Estimate of Costs
Pursuant to paragraph 11(a)(3) of rule XXVI of the Standing
Rules of the Senate, the Committee deems it impractical to
include an estimate of the costs incurred in carrying out the
provisions of this report due to the classified nature of the
operations conducted pursuant to this legislation. On July 30,
2012, the Committee transmitted this bill to the Congressional
Budget Office and requested it to conduct an estimate of the
costs incurred in carrying out unclassified provisions.
Evaluation of Regulatory Impact
In accordance with paragraph 11(b) of rule XXVI of the
Standing Rules of the Senate, the Committee finds that no
substantial regulatory impact will be incurred by implementing
the provisions of this legislation.
Changes in Existing Laws
In the opinion of the Committee, it is necessary to
dispense with the requirements of paragraph 12 of rule XXVI of
the Standing Rules of the Senate in order to expedite the
business of the Senate.
ADDITIONAL VIEWS OF SENATOR NELSON
My amendment, which was adopted by a rollcall vote of 15-0,
relates to critical decisions regarding replenishment of our
nation's imagery architecture. Those decisions should not be
rushed, and must be informed by a complete and comprehensive
understanding of all available options.
Bill Nelson.
ADDITIONAL VIEWS OF SENATORS WARNER, MIKULSKI, BLUNT, UDALL AND NELSON
Commercial Satellite Imagery
In our constrained budget environment, we are committed to
reducing the billions of dollars in costs of acquiring electro-
optical satellite imagery needed to satisfy the requirements of
our nation's leaders, intelligence agencies, and military
forces, while at the same time pursuing innovative solutions
and technologies that may be obtained at substantial cost
savings to the taxpayer over government-owned and operated
systems.
Leveraging the commercial satellite industry--and sharing
costs with private sector investment--helps meet the
government's satellite imagery needs in an affordable manner.
Moreover, meeting growing requirements for unclassified
commercial imagery that can be easily used in the field by our
military forces, shared readily with allies, and provided
quickly to first-responders during natural disasters such as
floods or forest fires, should be a high priority.
We are concerned about the process by which major decisions
that will have negative, irreversible impacts on the U.S.
commercial satellite industry were made. Cuts were made to
commercial imagery even before the completion of the Office of
Management and Budget-ordered review to determine future needs.
Of even greater concern is that these decisions were in
direct contravention of the President's ``Way Ahead'' strategy
for electro-optical imaging; the National Space Policy (PPD-4),
which directs the Executive Branch to ``purchase and use
commercial space capabilities and services to the maximum
practical extent when such capabilities and services are
available in the marketplace and meet the U.S. Government's
requirements [and] modify commercial space capabilities and
services to meet government requirements when . . . the
potential modification represents a more cost-effective and
timely acquisition approach for the government''; and the
Commercial Remote Sensing Policy, which states that the
``United States Government will rely to the maximum practical
extent on U.S. commercial remote sensing space capabilities for
filling imagery and geospatial needs for military,
intelligence, foreign policy, homeland security and civil
users.''
This decision process put the proverbial cart before the
horse: a major program established by the Director of National
Intelligence and the Secretary of Defense should be thoroughly
examined before a decision to reduce it, not afterwards.
Cutbacks to the commercial satellite industry may result in
the reduction of an American industrial base that creates high-
tech jobs at home and has produced a nascent, yet innovative
industry that has outpaced foreign competition. We have just
seen the two major U.S. commercial imagery providers propose to
merge into a single source of commercial imagery for the
government--a development that could lead to a loss of
competition and innovation, as well as higher costs.
The Intelligence Community's decisions led directly to this
proposed merger. The commercial imagery providers took on
greater risks and operating costs on an accelerated schedule
and involving additional capital investments. They did so on
the basis of the Government's request that commercial providers
increase their collection capacity. The Intelligence
Community's precipitous budgetary decision to reduce commercial
imagery purchases has left both providers in a precarious
position.
We are deeply concerned that this decision by the
Government presented Congress with a fait accompli and left the
legislative branch no chance to decide on the appropriate
funding levels for commercial imagery.
While we are disappointed that the Committee did not
address this issue through funding in the current version of
this bill, we hope that it still will be addressed in the
conferencing of this legislation. Furthermore, we support the
actions of the Senate Armed Services Committee, which in its
Fiscal Year 2013 National Defense Authorization Act, reported
to the Senate on June 4, 2012, recommended an increase of $125
million to restore some of the funding that was cut, as well as
a provision that would require the Director of National
Intelligence and the Secretary of Defense to sustain commercial
imagery collection capacity today and into the future.
Mark R. Warner.
Barbara A. Mikulski.
Roy Blunt.
Mark Udall.
Bill Nelson.
ADDITIONAL VIEWS OF SENATOR WARNER
I support the passage of this bill, which contains robust
provisions to stop leaks of classified information that damage
our national security. As a relatively new member of this
Committee I have been shocked at how much information I see on
the front pages of our newspapers that ought to be kept behind
closed doors. The culture in Washington, which has led to this
proliferation of leaks, must be changed, so that we will no
longer read almost every week about a new disclosure that can
do grave harm to the nation.
Nevertheless, I also strongly believe that the Congress
must be extremely careful about protecting the rights of
intelligence community employees: they should not face a
penalty such as the loss of pensions, without the due process
protections afforded to every American. Furthermore, I believe
it would be unfair to single out our intelligence officers for
such penalties without also covering the literally thousands of
other individuals who have access to sensitive information.
Mark R. Warner.
MINORITY VIEWS OF SENATOR WYDEN
This intelligence authorization bill is the result of
significant work by Chairman Feinstein, Vice Chairman Chambliss
and their staff, and I commend them for the bipartisan manner
in which they have worked to put it together. I believe that
this bill contains several worthwhile provisions, including one
that would renew the mandate for the Public Interest
Declassification Board, and another that seeks to improve
Congress' access to secret legal opinions written by the
Department of Justice. Understanding how the executive branch
secretly interprets public laws is an essential part of
deciding whether laws need to be updated or reformed, so I am
grateful for the leadership that Senators Feinstein and
Chambliss have shown in trying to improve Congress' access to
this secret legal analysis.
This bill also contains a number of provisions that are
intended to address the problem of unauthorized disclosures of
classified information. I share my colleagues' frustration with
the problem of unauthorized disclosures. As the son of a
newspaperman, I have great respect for the press and the
absolutely vital role that they play in a democratic society,
and I believe that it is particularly important to have
transparent public debate about issues of foreign policy and
national security. And I can certainly recall specific
instances in which, despite my seat on the Senate Intelligence
Committee, I found out about serious government wrongdoing--
such as the NSA's warrantless wiretapping program or the CIA's
coercive interrogation program--only as a result of disclosures
by the press. It is also true, however, that unauthorized
disclosures can jeopardize legitimately sensitive government
activities and operations, and even put lives at risk.
One of the best analyses I have seen of the problem of
unauthorized disclosures was a report published in July 2011 by
the National Intelligence University. The report observed that
this problem has been around for several decades, noting
specifically that ``The relative consistency in the number of
unauthorized disclosures over the past 30 years demonstrates
their persistent nature, independent of which political party
controls the White House or Congress.'' It also suggested that
because it is typically very difficult to identify government
employees responsible for disclosing classified information to
the media, unauthorized disclosures are not a problem that can
be solved with legislation. (The report also cited a number of
other studies that have reached this same conclusion.) That
being said, I see no reason why Congress should not try to help
the executive branch safeguard information that it wishes to
protect, as long as Congress is careful not to do more harm
than good. I myself spent four years working on legislation to
increase the criminal penalty for people who are convicted of
deliberately exposing covert agents, out of concern for both
national security and the well-being of the covert agents
themselves. And I am proud to say that with help from a number
of my Republican and Democratic colleagues, this legislation
was finally signed into law in 2010.
Title V of this bill contains a number of provisions that
are intended to address the problem of unauthorized
disclosures. I am looking forward to further debate on these
provisions, but I have serious concerns about one of them in
particular, and that is the reason that I voted against this
bill.
Section 511 of this bill would require the Director of
National Intelligence (DNI) to establish an administrative
process under which the DNI and the heads of the various
intelligence agencies would have the authority to take away
pension benefits from an intelligence agency employee (or a
former employee) if the DNI or the agency head ``determines''
that the employee has knowingly violated his or her
nondisclosure agreement and disclosed (or ``leaked'')
classified information.
I am concerned that the Director of National Intelligence
himself has said that this provision would not be a significant
deterrent to leaks, and that it would neither help protect
sensitive national security information nor make it easier to
identify and punish actual leakers. Beyond these concerns about
the provision's effectiveness, I am also concerned that giving
intelligence agency heads the authority to take away the
pensions of individuals who haven't been formally convicted of
any wrongdoing could pose serious problems for the due process
rights of intelligence professionals, and particularly the
rights of whistleblowers who report waste, fraud and abuse to
Congress or Inspectors General. I raised this same concern when
the provision was included in the Senate Intelligence
Committee's version of the intelligence authorization bill for
fiscal year 2011, so I will repeat my reasoning here.
Section 511--as approved by the Select Committee on
Intelligence--gives the intelligence agency heads the power to
take pension benefits away from any employee that an agency
head ``determines'' has knowingly violated their nondisclosure
agreement. However, it is entirely unclear to me which standard
agency heads would use to ``determine'' that a particular
employee was guilty of disclosing information. It seems clear
that section 511 gives agency heads the power to make this
determination themselves, without going to a court of law, but
the language of the provision provides virtually no guidance
about what standard should be used, or even whether this
standard could vary from one agency to the next. No agency
heads have yet told Congress what standard they believe they
would be inclined or required to use. This means that if an
agency head ``determines'' that a particular individual is
responsible for a particular anonymous publication, he or she
could conceivably take action to revoke that individual's
pension benefits even if the agency does not have enough proof
to convict the employee in court.
Section 511 states that agency heads must act ``in a manner
consistent with the due process and appeal rights otherwise
available to an individual who is subject to the same or
similar disciplinary action under other law.'' But federal
agencies do not normally take away the pension benefits of
former employees unless they are convicted of a crime or begin
openly working for a foreign government. I do not believe that
this ``otherwise available'' language is intended to require
the government to get a criminal conviction, but beyond that I
am not at all sure what impact this language is supposed to
have and I am not sure that the various intelligence agency
heads will know what it means either. This only increases my
concern that this provision could be used to undermine or
violate the due process rights of intelligence agency
employees.
I am also especially troubled that section 511 is silent
regarding disclosures to Congress and Inspectors General.
Everyone hopes that intelligence agency managers and
supervisors will act honorably and protect whistleblowers who
come forward and go through proper channels to report waste,
fraud and abuse in national security agencies, but this is
unfortunately not always the reality. There are existing laws
in place that are intended to protect whistleblowers who
provide information to Congress and Inspectors General--and I
believe that these laws should be strengthened--but section 511
does not specify whether it would supersede these existing
statutes or not. I know that none of my colleagues would
deliberately do anything to undermine protections for
legitimate whistleblowers, but I am concerned that this
provision could nonetheless have a negative impact on existing
whistleblower protections.
It is unfortunately entirely plausible to me that a given
intelligence agency could conclude that a written submission to
the congressional intelligence committees or an agency
Inspector General is an ``unauthorized publication,'' and that
the whistleblower who submitted it is thereby subject to
punishment under section 511, especially since there is no
explicit language in the bill that contradicts this conclusion.
Withholding pension benefits from a legitimate whistleblower
would be highly inappropriate, but overzealous and even
unscrupulous individuals have served in senior government
positions in the past, and will undoubtedly do so again in the
future. This is why it is essential to have strong protections
for whistleblowers enshrined in law, and this is particularly
true for intelligence whistleblowers, since, given the covert
nature of intelligence operations and activities, there are
limited opportunities for public oversight. But reporting fraud
and abuse by one's own colleagues takes courage, and no
whistleblowers will come forward if they do not believe that
they will be protected from retaliation.
Finally, I remain somewhat perplexed by the fact that
section 511 creates a special avenue of punishment that only
applies to accused leakers who have worked directly for an
intelligence agency at some point in their careers. There are
literally thousands of employees at the Departments of Defense,
State and Justice, as well as the White House, who have access
to sensitive information. Some of the most serious leaks of the
past few decades have undoubtedly been made by individuals
working for these organizations. I do not see an obvious
justification for singling out intelligence community
employees, particularly in the absence of evidence that these
employees are responsible for a disproportionate number of
leaks. And I am concerned that it will be harder to attract
qualified individuals to work for intelligence agencies if
Congress creates the perception that intelligence officers have
fewer due process rights than other government employees.
Withholding pension benefits from individuals who are
convicted of disclosing classified information may well be an
appropriate punishment. This punishment is already established
in existing laws, and I would be inclined to support efforts to
clarify or strengthen these laws. But I am not inclined to give
agency heads broad authority to take away the pensions of
individuals who have not been convicted of wrongdoing,
particularly when the agency heads themselves have not even
told Congress how they would interpret and implement this
authority. This is why I voted against this authorization bill.
I look forward to working with my colleagues to amend this
bill, and I hope that we will be able to reach an agreement
that both achieves their goals and addresses my concerns. All
of my colleagues and I agree that illegal leaks can be a
serious problem, but this does not mean that anything at all
that is done in the name of stopping leaks is necessarily wise
policy.
Ron Wyden.
APPENDIX
[Letter of the Director of National Intelligence, April 12, 2011]
Director of National Intelligence,
Washington, DC.
Hon. Dianne Feinstein,
Chairman,
Hon. Saxby Chambliss,
Vice Chairman, Select Committee on Intelligence, U.S. Senate,
Washington, DC.
Hon. Mike Rogers,
Chairman,
Hon. C.A. ``Dutch'' Ruppersberger,
Ranking Member, Permanent Select Committee on Intelligence, U.S. House
of Representatives, Washington, DC.
Dear Madam Chairman Feinstein, Chairman Rogers, Vice
Chairman Chambliss, and Ranking Member Ruppersberger: The
Administration thanks the Senate Select Committee on
Intelligence and the House Permanent Select Committee on
Intelligence for their continued support of the Intelligence
Community (IC) and its mission. We greatly appreciate the
Committees' willingness to work with the Administration, and we
are pleased that both the Senate Select Committee on
Intelligence and the House Permanent Select Committee on
Intelligence have included several provisions in S. 719/H.R.
754 that the Administration supports, namely, a technical fix
for nonreimbursable details, specific expenditure authority for
human intelligence and counterintelligence, modification to the
schedule and requirements of the National Counterintelligence
Strategy, and transfer authority for appropriations and other
amounts for the intelligence elements of the Department of
Defense. These provisions, if they become law, will facilitate
more efficient operations and improve the IC's ability to
accomplish its mission.
While the Administration appreciates the above provisions,
the Administration has significant concerns with other
provisions of the bills and the accompanying Classified
Annexes, which are outlined below:
Section 403, Unauthorized disclosure of classified information (S.
719):
This provision requires the DNI to publish regulations
relating to violations of prepublication review requirements
contained in IC employee nondisclosure agreements. The
Administration shares the Senate Select Committee on
Intelligence's concern and frustration with the unacceptable
number and severity of leaks of classified information. Leaks
of classified information constitute a breach of public
confidence and risk serious harm to the national security
interests of the United States, including the lives of United
States civilians and military service members, and citizens of
our foreign partners.
Despite these shared concerns, the Administration does not
support Section 403. This is so for three principal reasons:
First, the Administration does not believe that the
potential loss of retirement benefits through an administrative
forfeiture would constitute a deterrent sufficient to justify
the creation of such process. Obviously, a predicate to any
administrative process would be the identification of the
leaker. Of course, leakers take steps to protect their identity
and avoid any sanction--administrative or criminal--for their
conduct. It seems unlikely that a leaker would take different
steps to avoid apprehension based upon whether the leaker
believed he or she could be sanctioned criminally or
administratively. Any person who would risk identification as a
leaker necessarily risks a felony criminal conviction,
incarceration, and forfeiture of any Government pension. If the
threat of a felony conviction and incarceration did not deter a
potential leaker, it is unlikely that the threat of the loss of
retirement benefits due to administrative action would add a
significant, additional disincentive. And although in our view
it will not deter potential whistleblowers who follow
established procedures, the provision fails to deter the
targeted group--individuals that do not follow such procedures.
Second, any process to revoke a leaker's retirement
benefits must include robust legal protections for the
accused--e.g., to ensure due process. As such, Section 403 will
only result in the substitution of one substantial and
meaningful fact finding and adjudicative procedure for another.
Consequently, the Administration believes that section 403
would not provide the Executive branch with a meaningful new
tool in prosecuting leakers.
Third, both the initial administrative process and judicial
appeals would carry the potential for disclosure of additional
classified information. For example, while the Classified
Information Procedures Act establishes procedures for the
handling of classified information in criminal proceedings,
there are no analogous statutory procedures for the protection
of classified information in a civil appeal challenging an
underlying administrative action.
The Administration is committed to taking positive and
meaningful steps to address the problem of leaks. This includes
new measures to protect classified information, control access
to classified information, and identify and prosecute leakers.
We do not believe that section 403 will advance this effort.
Section 403 should be removed from the bill.
Section 413, Confirmation of appointment of the Director of the
National Security Agency (S. 719):
This provision requires that the Director of the National
Security Agency be appointed by the President, by and with the
advice and consent of the Senate. Consistent with the
recommendations of the National Commission on Terrorist Attacks
upon the United States, the Administration believes that if
this provision were to become law, a critical national security
position could remain unfilled for a significant period of
time, adversely impacting the management and function of the
National Security Agency. The Administration therefore objects
to the inclusion of this provision in the FY11 Intelligence
Authorization Act.
Section 402, Insider threat detection program (S. 719/H.R. 754):
This provision requires the Director of National
Intelligence (DNI) to create an automated insider threat
detection program for the information resources of each element
of the IC to detect unauthorized access to classified
information. We wholeheartedly agree that we must be vigilant
and proactive in trying to detect, mitigate, and deter insider
threats. The Administration supports a comprehensive insider
threat detection capability and we are currently working toward
its implementation.
The Administration, however, is concerned with the tight
timelines required by this provision for the automated
program's operational readiness (initial operating capability
by October 1, 2012; full operating capability by October 1,
2013). The Administration believes that fixing firm timelines
in statute for the program's operational readiness will not
permit sufficient flexibility in managing the program. There
are differing capability levels across the Government, and, as
a result, improvements to insider threat detection require
phased implementation. Throughout implementation, moreover, the
Administration must ensure that privacy protections are in
place, and that access to insider threat detection information
and activities is limited to authorized personnel for
authorized purposes. Accordingly, the Administration strongly
requests that the provision instead grant the DNI flexibility
in implementation timelines of the program.
Section 412, Accounts and transfer authority for appropriations and
other amounts for the intelligence elements of the Department
of Defense (S. 719/H.R. 754):
This provision provides the Secretary of Defense with
transfer authority for appropriations available for
intelligence, intelligence-related activities, and
[intelligence-related] communications (S. 719 does not contain
the bracketed language). The Administration welcomes this
provision, but recommends three minor revisions: One would
permit, rather than require, the Secretary of the Treasury to
establish accounts for the receipt of such transferred
appropriations; a second would not limit transfers to
``intelligence-related communications'' appropriations, but
permit transfers of other ``communications'' appropriations;
and the third would authorize the Secretary of Defense to
exercise this transfer authority ``notwithstanding any other
provision of law,'' so it is clearly in addition to other
transfer authorities.
Section 102, Classified schedule of authorizations (S. 719/H.R. 754):
This provision sets a personnel limit as specified in the
Classified Schedule of Authorizations with no provision to
exceed the limit to meet operational needs or unforeseen
requirements. The Administration requests that Section 102 be
amended to authorize the employment of additional personnel up
to five percent in excess of that established in the Classified
Schedule of Authorizations to meet unforeseen IC operational
needs or requirements.
Classified Annexes:
The Administration has recently been granted access to the
Classified Annexes (containing the Schedule of Authorizations)
to accompany the FY 2011 Intelligence Authorization Act. Based
on this review, we have identified two significant concerns
that we can reference in this unclassified letter. First, the
funding reductions and direction in the Schedule of
Authorizations will jeopardize manpower required for essential
IC national security operations. Second, the funding reductions
and redirection proposed in the Classified Annexes would
negatively impact a much-needed technical collection program
that is meeting acquisition milestones. The IC is conducting an
assessment of an alternative to the Administration's technical
collection program; until that assessment is completed, any
reduction or redirection of funds is unwarranted and could
jeopardize the scheduled operational capability of this
critical national security collection system.
A separate classified letter will be transmitted which will
more fully explain these and other Administration concerns.
The Administration requests that the Committees address the
concerns highlighted in this letter. We need to resolve these
issues before the Administration can reach a determination
regarding support for this bill. We welcome the opportunity to
work with the Committees to address the Administration's
concerns.
The Office of Management and Budget has advised us that,
from the perspective of the Administration's program, there is
no objection to submission of this letter.
Sincerely,
James R. Clapper.