[Senate Report 112-12]
[From the U.S. Government Publishing Office]
Calendar No. 25
112th Congress Report
SENATE
1st Session 112-12
======================================================================
INTELLIGENCE AUTHORIZATION ACT FOR FISCAL YEAR 2011
_______
April 4, 2011.--Ordered to be printed
_______
Mrs. Feinstein, from the Committee on Intelligence, submitted the
following
R E P O R T
together with
ADDITIONAL AND MINORITY VIEWS
[To accompany S. 719]
The Select Committee on Intelligence, having considered an
original bill (S. 719) to authorize appropriations for fiscal
year 2011 for intelligence and intelligence-related activities
of the United States Government, the Community Management
Account, and the Central Intelligence Agency Retirement and
Disability System, and for other purposes, reports favorably
thereon and recommends that the bill do pass.
Classified Annex to the Committee Report
The classified nature of United States intelligence
activities precludes disclosure by the Committee of details of
its budgetary recommendations. The Committee has prepared a
classified annex to this report that contains a classified
Schedule of Authorizations. The Schedule of Authorizations is
incorporated by reference in the Act and has the legal status
of public law. The classified annex is made available to the
Committees of Appropriations of the Senate and the House of
Representatives and to the President. It is also available for
review by any Member of the Senate subject to the provisions of
Senate Resolution 400 of the 94th Congress (1976).
Section-by-Section Analysis and Explanation
The following is a section-by-section analysis and
explanation of the Intelligence Authorization Act for Fiscal
Year 2011 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 2011.
Section 102. Classified schedule of authorizations
Section 102 provides that the details of the amounts
authorized to be appropriated for intelligence and
intelligence-related activities and the applicable personnel
levels (expressed as full-time equivalent positions) for fiscal
year 2011 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. Intelligence Community Management Account
Section 103 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 2011.
Subsection (a) authorizes appropriations of $649,732,000
for fiscal year 2011 for the activities of the ICMA. Subsection
(b) authorizes 648 full-time equivalent personnel for elements
within the ICMA for fiscal year 2011 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, 2012.
Title II--Central Intelligence Agency Retirement and Disability System
Section 201. Authorization of appropriations
Section 201 authorizes appropriations in the amount of
$292,000,000 for fiscal year 2011 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 detail of other personnel
Section 303 makes a correction to Section 113A of the
National Security Act of 1947 (50 U.S.C. 404h-1), which was
amended by Section 302 of the Intelligence Authorization Act
for Fiscal Year 2010 (Pub. L. No. 111-259, October 7, 2010). As
enacted, this section limited to two years the length of time
that United States Government personnel may be detailed to the
staff of an element of the Intelligence Community funded
through the National Intelligence Program from another element
of the Intelligence Community or from another element of the
United States Government on a reimbursable basis or a non-
reimbursable basis. It was intended to extend the period of
time an employee could be detailed on a non-reimbursable detail
from one year to two years. The provision was not intended to
limit the time period for reimbursable details, which had not
been previously time-limited. Section 303 restates Section 113A
of the National Security Act without the limitation on
reimbursable details and clarifies that the section does not
limit any other source of authority for reimbursable or non-
reimbursable details.
Title IV--Matters Relating to Elements of the Intelligence Community
SUBTITLE A--OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE
Section 401. Schedule and requirements for the National
Counterintelligence Strategy
Section 401 amends Section 904(d)(2) of the
Counterintelligence Enhancement Act of 2002 (50 U.S.C.
402c(d)(2)) to require that the National Counterintelligence
Strategy be revised or updated at least every three years and
that it align with the strategy and policies of the Director of
National Intelligence.
The Committee does not consider the current requirement to
produce this multi-year strategy on an annual basis to be an
efficient or effective use of limited resources. Section 401
will enable, whenever possible, the Strategy to be produced in
tandem with strategic planning documents such as the National
Intelligence Strategy.
Section 402. Insider Threat Detection Program
Section 402 requires the Director of National Intelligence,
not later than October 1, 2012, to establish an initial
operating capability for an effective automated insider threat
detection program for the information resources in each element
of the Intelligence Community in order to detect unauthorized
access to, or use or transmission of, classified information.
Section 402 requires that the program be at full operating
capability by October 1, 2013.
Not later than December 1, 2011, the Director of National
Intelligence shall submit to the congressional intelligence
committees a report on the resources required to implement the
program and any other issues the Director considers appropriate
to include in the report.
Section 403. Unauthorized disclosure of classified information
The Committee has had long-standing concerns about
unauthorized disclosures of classified information. A
particular source of frustration has been that leakers are
rarely seen to suffer consequences for leaking classified
information. In order to better supplement criminal prosecution
remedies for unlawful disclosures, the Committee has urged the
Executive Branch to make fuller use of administrative
sanctions. Up to now, those sanctions have consisted of
security clearance revocation, suspension, or termination as a
means of deterring and punishing leakers. Unfortunately, these
sanctions are not generally available for use against a key
source of leaks, former Intelligence Community employees.
The purpose of Section 403 is to provide an additional
administrative option for the Intelligence Community to deter
leakers who violate the prepublication review requirements of
their non-disclosure agreements. This option may require
individuals to surrender their current and future federal
government pension benefits if they knowingly violate the
prepublication review requirements in their non-disclosure
agreements in a manner that discloses classified information to
an unauthorized person or entity.
Section 403 authorizes the DNI to publish regulations, in
coordination with the head of each element of the Intelligence
Community, that require each Intelligence Community employee to
sign a written non-disclosure agreement and set forth the
administrative procedures applicable when an employee violates
his non-disclosure agreement. The provision is designed to be
flexible and allow the DNI and agency heads to tailor
regulations and procedures that will work best for their
respective agencies, while providing due process for an
employee who has violated the terms of the 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 403
shall be consistent with any procedures established by
Executive order or regulation under section 801of the National
Security Act.
Under this provision, 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 plan, 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 403 provides a mechanism for the Director of
National Intelligence to enforce the contractual obligations
contained in a nondisclosure agreement with respect to
prepublication review requirements, for both current and future
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 403 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 current
and future federal government pension benefits if it is
determined, in accordance with the applicable administrative
procedures required by subsection (a), 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 403, the term ``federal
government pension plan'' 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.
SUBTITLE B--OTHER ELEMENTS
Section 411. Defense Intelligence Agency counterintelligence and
expenditures
Section 411 amends Section 105 of the National Security Act
of 1947, on the responsibilities of Intelligence Community
elements in the Department of Defense, to make clear that the
responsibilities of the DIA include counterintelligence as well
as human intelligence activities. This confirms the existing
responsibilities of the agency.
Section 411 also provides authority for the Director of the
DIA to account for expenditures for human intelligence and
counterintelligence activities of a confidential,
extraordinary, or emergency nature, in a manner similar to that
available to the CIA, which does not reveal sensitive
information. Section 411 limits this authority to no more than
five percent of the amounts available to the DIA Director for
human intelligence and counterintelligence activities unless
the Director notifies the congressional intelligence committees
thirty days in advance of the intent to exceed this limit. In
addition, the Director must report annually to the
congressional intelligence committees on the use of this
expenditure authority. It is the intention of the Committee
that the DIA Director shall carefully monitor the use of this
authority to ensure that the flexibility it permits is used
only in furtherance of the counterintelligence and human
intelligence responsibilities of the DIA.
A similar provision, without the five percent limitation,
was included in S. 1494, the Intelligence Authorization Act for
Fiscal Year 2010, reported by the Committee on July 22, 2009.
S. 1494 passed the Senate by unanimous consent on September 16,
2009.
Section 412. Accounts and transfer authority for appropriations and
other amounts for the intelligence elements of the Department
of Defense
Section 412 authorizes the Secretary of Defense to transfer
defense appropriations into an account or accounts established
by the Secretary of the Treasury for receipt of such funds.
These accounts may receive transfers and reimbursement from
transactions between the defense intelligence elements and
other entities, and the Director of National Intelligence may
also transfer funds into these accounts. Appropriations
transferred pursuant to this section shall remain available for
the same time period, and for the same purposes, as the
appropriations from which transferred. This should improve
auditing of defense intelligence appropriations.
Section 413. Confirmation of appointment of the Director of the
National Security Agency
Section 413 amends the National Security Agency Act of 1959
to provide that the Director of the National Security Agency
(NSA) shall be appointed by the President by and with the
advice and consent of the Senate. Under present law and
practice, the President appoints the Director of the NSA. The
appointment has been indirectly subject to confirmation through
Senate confirmation of the military officers who have been
promoted into the position. Section 413 will make explicit that
the filling of this key position in the Intelligence Community
should be subject to confirmation.
The Committee has had a long-standing interest in ensuring
Senate confirmation of the heads of the NSA, the National
Reconnaissance Office, and the National Geospatial-Intelligence
Agency. The Committee moves forward on the requirement for
Senate confirmation of the Director of NSA in this Act in light
of NSA's critical role in the national intelligence mission,
particularly with respect to activities which may raise privacy
concerns.
Through advice and consent, the Senate can enable the
Congress to fulfill more completely its responsibility for
providing oversight to the intelligence activities of the
United States Government and ensure the responsibilities and
foreign intelligence activities of the NSA receive appropriate
attention.
The requirement for confirmation of the Director of NSA
will not increase the number of Senate-confirmed officials. The
Director of the NSA is now also the Commander of the U.S. Cyber
Command and therefore subject to confirmation. Accordingly,
Section 413 does not alter the role of the Committee on Armed
Services in reviewing and approving the promotion or assignment
of military officers. Through a sequential referral the Armed
Services and Intelligence Committees will assure that all
aspects of the appointment, both with respect to the Cyber
Command and intelligence collection, will be considered.
Section 413(c) makes clear that the requirement for Senate
confirmation applies prospectively. Therefore, the Director of
the NSA on the date of enactment will not be affected by this
section, which will apply initially to the appointment and
confirmation of his successor.
Committee Action
Vote to report the committee bill
On March 15, 2011, a quorum for reporting being present,
the Committee voted to report the bill, by a vote of 12 ayes
and 3 noes. 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--no; Senator Udall--no; 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.
On March 18, 2011, acting on the basis of discussion during
the mark-up, Chairman Feinstein and Vice Chairman Chambliss
sent a letter to the Director of National Intelligence to
request his views on Section 403 of the bill. The Committee has
not received a formal response to that letter as of the filing
of this report.
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 section 11 of rule XXVI of the Standing Rules
of the Senate, the Committee transmitted this bill to the
Congressional Budget Office (CBO) on March 15, 2011, and
requested it to conduct an estimate of the costs incurred in
carrying out its provisions. On March 31, 2011, the CBO
provided a cost estimate on the unclassified portions of the
bill (posted on its website at http://cbo.gov/ftpdocs/121xx/
doc12123/Senate%20Intelligence.doc.pdf) and concluded that,
while the bill contains direct spending that makes the pay-as-
you-go procedures applicable, the effects of that spending
would not be significant. The CBO also noted that the bill
contains no intergovernmental or private-sector mandates as
defined in the Unfunded Mandates Reform Act and would impose no
costs on state, local, or tribal governments.
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 MARK R. WARNER
As a new member of the Senate Select Committee on
Intelligence I am proud to represent thousands of current and
former members of the intelligence agencies who live, work, or
retire in Virginia. Because they are not able to discuss their
very important work with friends and even family members, I
will be a strong advocate for them in Congress.
I am also committed to providing robust oversight of the
United States Intelligence Community, which is charged with
gathering, analyzing, and acting upon intelligence that keeps
our nation safe. There is perhaps no more important function of
the U.S. government than providing policymakers with unbiased
facts and assessments that guide their decisions in matters of
war and peace.
The fact that this important mission must be done in secret
makes it all the more important that the people of the United
States have the confidence that it is being carried out--
always--in keeping with this nation's laws, and in line with
the principles and expectations of Americans. Passing an annual
authorization bill that informs the intelligence agencies how
they may spend appropriated funds is an important way for the
Senate Intelligence Committee to play a key role in this
necessary oversight. I am honored to have been named to this
position of responsibility.
Mark R. Warner.
MINORITY VIEWS OF SENATOR WYDEN
This intelligence authorization bill is the product of
substantial labor by both Chairman Feinstein and Vice Chairman
Chambliss, as well as their respective staff, and I commend
them both for their efforts and for the bipartisan manner in
which they have worked to put it together. It has now been
almost seven years since an intelligence authorization bill was
signed into law during the fiscal year it was intended to
cover, and although the 2011 fiscal year is now approximately
halfway over, Congress still has an opportunity to provide
useful guidance and direction regarding intelligence spending
for this fiscal year.
This bill also contains several worthwhile legislative
provisions, including one that would make the Director of the
National Security Agency a Senate-confirmed position. I support
much of what these provisions are intended to achieve, but I
have very significant concerns about one provision in this
bill, and that is why I voted against it.
Section 403 of this bill would authorize 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 the
pension benefits of an intelligence agency employee (or a
former employee) if they ``determine'' that the employee has
knowingly violated his or her nondisclosure agreement and
disclosed classified information.
I share my colleagues' frustration regarding unauthorized
disclosures, or ``leaks,'' of classified information. Leaks are
a problem that has plagued intelligence agencies throughout
modern history--they can undermine intelligence operations,
jeopardize intelligence sources and methods, and have a
terrible impact on the lives of covert agents who are publicly
exposed. Every member of Congress, myself included, wants to
find new ways to identify and appropriately punish individuals
who illegally disclose classified information. I personally
spent four years working on legislation to increase the
criminal penalty for people who are convicted of deliberately
exposing covert agents. 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 last year.
I agree that increasing penalties for particular offenses
can sometimes have a deterrent effect on those who might
otherwise be tempted to leak, so I support the creation of new
consequences for individuals who have been convicted of
illegally divulging classified information. But when it comes
to leakers, the biggest challenge is not determining how to
punish them as much as it is identifying who they are.
Given these challenges, my concern is 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.
Section 403--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. But as I noted in the committee markup of this bill,
neither the DNI nor any of the intelligence agency heads have
asked Congress for this authority. Moreover, as of this writing
none of the intelligence agencies have officially told Congress
how they would interpret this language.
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
403 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 403 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; 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, with a
corresponding impact on their family members and dependents.
I am also especially troubled that section 403 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 403
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 think it was a mistake for the
Intelligence Committee to report this bill without hearing the
intelligence agencies' views on whether or not they believe
that section 403 would impact 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 403, 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 am somewhat perplexed by the fact that section
403 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 will often 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
on the Senate floor and I do not intend to support it unless
significant reforms are made. All of my colleagues and I agree
that illegal leaks are 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.