[Senate Report 112-43]
[From the U.S. Government Publishing Office]
Calendar No. 124
112th Congress Report
SENATE
1st Session 112-43
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INTELLIGENCE AUTHORIZATION ACT FOR FISCAL YEAR 2012
_______
August 1, 2011.--Ordered to be printed
_______
Mrs. Feinstein, from the Select Committee on Intelligence,
submitted the following
R E P O R T
together with
ADDITIONAL VIEWS
[To accompany S. 1458]
The Select Committee on Intelligence, having considered an
original bill (S. 1458) to authorize appropriations for fiscal
year 2012 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
On February 14, 2011, 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 2012 is $55
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 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 2012 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 2012.
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 2012 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 2012 in excess
of the number of authorized full-time equivalent positions by
an amount not exceeding 3 percent (rather than the 5 percent
leeway requested by the Administration) 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) provides additional flexibility when the
heads of IC elements determine that work currently performed by
contract personnel should be performed by government employees.
It does so by authorizing the DNI to authorize employment of
additional full-time equivalent personnel in a number equal to
the number of full-time equivalent contract personnel currently
performing that work. Any exercise of this authority should be
implemented in accordance with a plan that includes adequate
support for personnel. Exercise of this authority should result
in an actual reduction of the number of contract personnel and
not a shift of resources to hire other contract personnel.
The DNI must report the decision to allow an IC element to
exceed the personnel ceiling or to convert contract personnel
under Section 103(a) and (b) in advance to the congressional
intelligence committees.
During consideration of the fiscal year 2008 request, the
congressional intelligence committees learned that practices
within different elements of the Intelligence Community on the
counting of personnel with respect to legislatively-fixed
ceilings were inconsistent, and included not counting certain
personnel at all against personnel ceilings. The committees
requested that the IC Chief Human Capital Officer (CHCO) ensure
that by the beginning of fiscal year 2010 there would be a
uniform and accurate method of counting all IC employees under
a system of personnel levels expressed as full-time
equivalents. The committees also expressed their view that the
DNI express the personnel levels for civilian employees of the
Intelligence Community as full-time equivalent positions in the
congressional budget justifications for fiscal year 2010. The
DNI has done so. In addition, the DNI has issued a policy to
ensure a uniform method for counting IC employees. Subsection
(c) confirms in statute the obligation of the DNI to establish
these guidelines.
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 2012.
Subsection (a) authorizes appropriations of $585,187,000
for fiscal year 2012 for the activities of the ICMA. Subsection
(b) authorizes 800 full-time equivalent personnel for elements
within the ICMA for fiscal year 2012 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, 2013.
TITLE II--CENTRAL INTELLIGENCE AGENCY RETIREMENT AND DISABILITY SYSTEM
Section 201. Authorization of appropriations
Section 201 authorizes appropriations in the amount of
$513,700,000 for fiscal year 2012 for the Central Intelligence
Agency (CIA) Retirement and Disability Fund. For fiscal year
2011, Congress authorized $292,000,000. While that level was
consistent with prior authorizations, it did not fully fund, as
prior authorizations had not fully funded, the obligations of
the Fund. The fiscal year 2012 increase is based on the
Administration's determination, which the Committee supports,
that the obligations of this retirement and disability system
should be fully funded.
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. Enhancement of authority for flexible personnel management
among the elements of the intelligence community
Section 303 adds a subsection to Section 102A of the
National Security Act of 1947 to promote the ability to manage
all the elements of the IC as a single cohesive community. The
new Subsection 102A(v) enables the DNI, with the concurrence of
the head of the covered department concerned and in
coordination with the Director of the Office of Personnel
Management, to convert competitive service positions within an
IC element of the covered department to excepted positions and
to establish new positions in the excepted service within an IC
element of a covered department. Under Section 303, an
incumbent occupying a position on the date of enactment
selected to be converted to the excepted service shall have the
right to refuse the conversion. Once such individual no longer
occupies the position, the position may be converted.
Because of their unique intelligence, investigative and
national security missions, most IC elements are in the
excepted civil service. However, civilian employees in several
smaller IC elements are still covered under competitive service
rules. The ability to convert those positions to the excepted
service will enable the IC to maintain a system throughout the
Intelligence Community that is responsive to the needs of the
IC both for secrecy and the ability to quickly respond to
personnel requirements. The DNI has requested a similar
authority in the past. Under Section 303, the covered
departments are the Department of Energy, the Department of
Homeland Security, the Department of State, and the Department
of the Treasury.
Although new positions in the excepted service may be
created within an element of the Intelligence Community within
the covered departments under this authority, the personnel
ceilings referred to in Section 102(a) still apply to the
number of personnel in an element. The Committee does not
intend for this conversion authority to be used to increase the
number of full-time equivalent personnel in an intelligence
element above the applicable personnel ceilings.
Section 304. Cost estimates
Section 304 amends Section 506A of the National Security
Act of 1947 to require that independent cost estimates include
all costs associated with a major system acquisition even when
a service or capability to deliver end-to-end functionality
will be provided by another Intelligence Community agency or
element. This additional requirement in the preparation of the
independent cost estimate will assist Congress and the
Executive Branch in evaluating the full cost of an acquisition,
including the costs to process, exploit, disseminate, and store
the information such major system collects. The amendments made
by Section 304 become effective 180 days after enactment.
Section 305. Preparation of nuclear proliferation assessment statements
As set forth in the Atomic Energy Act, the United States
may enter into a Civilian Nuclear Agreement (or ``123
Agreement'') with another nation or multinational organization.
After negotiating the terms of the 123 Agreement, the
Administration submits the terms to Congress for review along
with a Nuclear Proliferation Assessment Statement (NPAS). Under
current law, the NPAS is drafted by the State Department, in
consultation with the Director of Central Intelligence; the Act
has not been amended to reflect the establishment of the
Director of National Intelligence. In multiple reports, the
Government Accountability Office has identified various
problems with this process, including insufficient time for
consultation with the Intelligence Community, a lack of
adequate formal interagency guidance for NPAS development, and
ambiguity as to whether IC comments were fully incorporated
into the final NPAS. Section 305 modifies the NPAS process in
an effort to eliminate or mitigate these problems.
Currently, each NPAS must analyze the consistency of the
123 Agreement with other requirements of the Atomic Energy Act
and the adequacy of the safeguards and peaceful use assurances
that ensure the technology will not be used for military or
nuclear explosive purposes. Section 305 provides a new role for
the DNI in the NPAS process to ensure that Intelligence
Community concerns are more fully incorporated into each
statement. Section 305 requires the Secretary of State and the
DNI to provide an unclassified NPAS to the President. The first
two sections of the NPAS, which mirror the current
requirements, shall be prepared by the Secretary of State, in
consultation with the Director of National Intelligence. A
newly-required third section shall be prepared by the DNI, in
consultation with the Secretary of State, and provide a
comprehensive analysis of the country's export control system
with respect to nuclear-related matters. A classified annex
shall accompany the NPAS. The NPAS and its classified annex
shall be provided to the congressional intelligence committees
as well as the congressional foreign relations committees.
Section 306. Detainees held at United States Naval Station, Guantanamo
Bay, Cuba
The Committee believes that, given the intelligence and
security issues that may relate to a transfer of a detainee
from Guantanamo, additional time is needed for Congress to
assess the information provided pursuant to the current
congressional notification requirements and ensure that any
concerns are addressed prior to transfer. Moreover, as the
recidivism rate among former Guantanamo detainees has increased
over time, it is important for Congress to understand the terms
of any assurances provided by the receiving country with
respect to monitoring the transferred detainee. Therefore,
Section 306 modifies the notification requirements in Section
552(e) of the Department of Homeland Security Appropriations,
2010 (Public Law 111-83) and Section 428(e) of the Department
of Interior, Environment and Related Agencies Appropriations,
2010 (Public Law 111-88) to require 30 days notice to Congress,
rather than 15 days, of a transfer of a detainee to another
country. In addition, the notification shall include the terms
of any monitoring assurance provided by the receiving country
and identify the agency or department of the United States that
is to ensure any agreement between the United States and the
receiving country is carried out.
Section 307. Updates of intelligence relating to terrorism recidivism
of detainees held at United States Naval Station, Guantanamo
Bay, Cuba
As the recidivism rate among former Guantanamo Bay
detainees has increased over time, the Committee believes there
should be a regular unclassified summary of intelligence
relating to recidivism of detainees formerly held at Guantanamo
Bay made public by the DNI.
Section 334 of the Intelligence Authorization Act for
fiscal year 2010, Public Law 111-259, addressed this concern
initially by requiring the Director of National Intelligence,
along with the CIA Director and the Director of the Defense
Intelligence Agency, to make publicly available, on a one-time
basis, an unclassified summary that includes the intelligence
relating to former Guantanamo detainees. At the same time, the
President is required under Section 319 of the Supplemental
Appropriations Act of 2009, Public Law 111-32, to submit
classified quarterly reports to Congress that include
classified information about detainees' recidivist activities.
Section 307 requires the semiannual updating of the Section
334 report. The semiannual updates required under this section
will be an update of the Section 334 report and provide an
unclassified summary of intelligence relating to recidivism of
detainees currently or formerly held at Guantanamo Bay and an
assessment of the likelihood that such detainees will engage in
terrorism or communicate with persons in terrorist
organizations. The initial update shall be made publicly
available not later than 10 days after the date that the first
report following enactment is submitted to members and
committees pursuant to Section 319 of the Supplemental
Appropriations Act, 2009. The summary will be prepared by the
DNI, in consultation with the Director of the CIA and the
Director of the Defense Intelligence Agency, and will include
the number of confirmed or suspected recidivists.
Section 308. Submission of information on Guantanamo Bay detainee
transfers
Section 308 requires that not later than 45 days after the
date of enactment, the DNI, in coordination with the Secretary
of State, shall submit information to the congressional
intelligence committees concerning the transfer or potential
transfer of individuals who are or have been detained by the
United States at Naval Station, Guantanamo Bay, Cuba. This
information is to include the following: (1) an assessment of
the sufficiency of the monitoring undertaken by each foreign
country to which a detainee has been transferred; (2) any
written or verbal agreement between the Secretary of State and
the government of a foreign country that describes monitoring
and security assurances related to a detainee transferred to
such country; and (3) each Department of State cable,
memorandum, or report relating to or describing the threat such
an individual may or may not pose.
Section 309. Enhanced procurement authority to manage supply chain risk
Section 309 authorizes the heads of those elements of the
Intelligence Community outside the Department of Defense to
take certain procurement actions under certain circumstances to
reduce the risk that an adversary may sabotage, maliciously
introduce unwanted functions, or otherwise subvert information
systems so as to surveil, deny, disrupt or otherwise degrade
them. Section 309 is based on Section 806 of the Ike Skelton
National Defense Authorization Act for fiscal year 2011 (Public
Law 111-383).
Section 309(a) defines the following terms: covered agency,
covered item of supply, covered procurement, covered
procurement action, covered system, and supply chain risk. The
definitions of these terms are substantially the same as the
same terms in Public Law 111-383.
Under subsection (b), the head of a covered agency is
authorized to carry out a covered procurement action and limit
the disclosure of information concerning the basis for such
action. Covered procurement actions are subject to the
conditions in subsection (c), which include appropriate
consultation with procurement officials within the agency and a
determination that the use of the authority is necessary to
protect national security. In addition, there must be a
determination that less intrusive measures are not reasonably
available.
The head of the covered agency must give notice to the
congressional intelligence committees of a determination,
including a summary of the basis for a determination to take a
covered procurement action. Subsection (c) provides that the
authority under the section is in addition to any authority
under any other provision of law. The authority provided in
Section 309 is not intended to limit other procurement
authorities available to an intelligence agency head to protect
the national security.
The requirements of Section 309 go into effect 180 days
after enactment and expire on the date that Section 806 of the
Ike Skelton National Defense Authorization Act for fiscal year
2011 expires, which will occur in January 2014. In the
Committee Comments in this report, under the heading of Cyber
Supply Chain Risk, the Committee requests that the Office of
the National Counterintelligence Executive coordinate the
production of an interagency report that will assist in
determining what further measures are required.
Section 310. Report on burial allowances
Section 310 provides that the Director of the Office of
Personnel Management, in consultation with the DNI and the
Secretaries of Labor and Defense, shall submit a report on
current burial allowances for federal civilian or military
personnel. The report shall include recommendations, if any,
for legislation to provide for burial allowances at a level
which adequately addresses the cost of burials and provides for
equitable treatment across the United States Government.
Following the tragedy at Khowst, Afghanistan, the CIA
conducted a review of the benefits available to the survivors
of CIA employees who are killed in the line of duty. According
to the CIA, the review included a comparison of CIA's existing
benefits with the benefits offered by the Department of Defense
to survivors of service members killed in the line of duty. The
CIA found that its burial allowance was substantially less than
that offered by DoD and does not adequately cover the cost of
average burial expenses today.
Currently, according to the CIA, the DoD offers
approximately $6,900 for burial in a civilian cemetery where
the service member's family arranges preparation and casket.
The burial allowance for CIA employees is governed by the
Federal Employees Compensation Act (FECA), 5 U.S.C. 8134, which
dates back to 1966, and which is administered by the Secretary
of Labor. Under subsection 8134(a), ``If death results from
injury sustained in the performance of duty, the United States
shall pay, to the personal representative of the deceased or
otherwise, funeral and burial expenses not to exceed $800, in
the discretion of the Secretary of Labor.'' In addition to this
allowance, $200 is paid ``to the personal representative of a
deceased employee . . . for reimbursement of the costs of
termination of the decedent's status as an employee of the
United States.'' Subsection 8133(f). This amount is not
adjusted for inflation and does not cover adequately cover the
actual costs of funeral and burial expenses today, which are,
according to CIA estimates, on average between $12,000 and
$15,000.
The Committee believes it is important to respond to the
problem identified by the CIA in a manner that addresses
inadequacies in burial allowances for all federal civilian or
military personnel who die in the line of duty. The Committee
understands the Administration concurs in the need to act
comprehensively. In order to do so, Congress requires the
information and recommendations called for by Section 310.
Section 310 requires that the report be submitted by September
1, 2011, so the information and recommendations can be used in
reconciling the Senate and House authorizations. Accordingly,
the Committee requests that the Administration prepare and
submit this report without waiting for final action on this
bill.
Section 311. Modification of certain reporting requirements
The 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 Director of National
Intelligence, the Committee examined a set of recurring
reporting requirements nominated by the Intelligence Community.
Section 311 eliminates certain reports that were particularly
burdensome to the Intelligence Community when the information
in the reports could be obtained through other means. It also
modifies reporting requirements to set a date certain for their
repeal.
Because the majority of recurring reports provide critical
information relevant to the many challenges facing the
Intelligence Community today, the Committee has proceeded
carefully in eliminating or modifying only five statutory
reporting requirements, all from past intelligence
authorization acts or the Intelligence Reform and Terrorism
Prevention Act of 2004. The Committee believes that these
modifications will help the Intelligence Community to allocate
its resources properly towards areas of greatest congressional
concern.
A number of reporting obligations which directly or
indirectly impose tasks on the Intelligence Community arise
from legislation reported or managed by committees other than
the congressional intelligence committees. The Committee urges
the Intelligence Community to work with those committees, and
for committees to be responsive to the Intelligence Community,
in reviewing existing requirements for recurring reports with
the goal of assuring that the Intelligence Community is able to
apply its resources to informing Congress in the most efficient
ways.
TITLE IV--MATTERS RELATING TO ELEMENTS OF THE INTELLIGENCE COMMUNITY
Subtitle A--Office of the Director of National Intelligence
Section 401. Temporary appointment to fill vacancies within Office of
the Director of National Intelligence
Section 401 permits the President to make temporary
appointments to fill vacancies in offices within the Office of
the Director of National Intelligence that require Senate
confirmation (except the DNI, for whom by Section 103A(a)(6) of
the National Security Act of 1947 the Principal Deputy DNI is
next in line) with an individual who serves in another element
of the Intelligence Community. A similar provision was
requested by the DNI.
The Vacancies Act (5 U.S.C. 3345(a)(1)) provides that upon
a vacancy in a Senate-confirmed position (1) the first
assistant of the office may begin serving as the acting officer
immediately and automatically upon the occurrence of the
vacancy; (2) another officer who has already received Senate
confirmation may be directed by the President to serve as the
acting officer; and (3) certain other senior agency officials
may be designated by the President to serve in an acting
capacity. Given the relatively small size of the ODNI, the fact
that a significant number of the personnel within the ODNI are
on detail to the office from other elements of the Intelligence
Community, and the fact that positions in the ODNI to which the
Vacancy Act applies serve the entire Intelligence Community
(such as the Director of the National Counterterrorism Center
or the Inspector General for the Intelligence Community), an
individual employed within the Intelligence Community but
outside the ODNI may be best suited to fill a key leadership
position temporarily.
Section 401 addresses this issue by expanding the
President's choice for appointment under the third category of
the Vacancies Act to include senior officials from any element
of the Intelligence Community. Nothing in Section 401 modifies
or precludes the utilization of sections 3345(a)(1) or (2) of
title 5 to fill vacancies.
Section 402. Application of certain financial reporting requirements to
the Office of the Director of National Intelligence
Section 402 provides a limited grace period for the ODNI in
meeting the requirements of 31 U.S.C. 3515 until fiscal year
2013. The DNI in requesting this legislative provision stated
that the grace period will allow time for the implementation of
system improvements as well as process changes in the financial
management system currently supporting the ODNI. Together these
efforts are intended to yield financial statements that meet
the prescribed legal and audit standards.
Although the ODNI under 31 U.S.C. 3515 is required to
prepare and submit to the Congress and the Director of the
Office of Budget and Management an audited financial statement
for the preceding fiscal year by the following March 1st,
Section 369 of the Intelligence Authorization Act for fiscal
year 2010, enacted on October 7, 2010, directs the DNI ``to
develop a plan and schedule to achieve a full, unqualified
audit of each element of the intelligence community not later
than September 30, 2013.'' Section 402 will align the statutory
requirement for auditability with the plan for achieving
auditability set forth in the fiscal year 2010 Act.
Section 403. Public availability of information regarding the Inspector
General of the Intelligence Community
Section 403 requires the DNI to establish and maintain on
the publicly accessible ODNI website information relating to
the Inspector General (IG) for the Intelligence Community
including methods to contact the IG. Section 403 is based on a
similar requirement in Section 8L of the Inspector General Act,
as added by the Inspector General Reform Act of 2008, 5 U.S.C.
App., and is similar to Section 415. The information about the
IG is to be obvious and facilitate accessibility to the IG.
Given that most of the IG's reports will be classified, Section
403 does not require that IG reports and audits be posted on
the publicly accessible website.
Section 404. Technical correction to the Executive Schedule
Section 404 amends 5 U.S.C. 5315 to establish the salary
level of the Chief Information Officer of the Intelligence
Community at Level IV of the Executive Schedule, the level of
other chief information officers in the federal government with
comparable duties and responsibilities. The Chief Information
Officer of the Intelligence Community is a position established
in Section 103G of the National Security Act, added by section
303 of Public Law 108-487, the Intelligence Authorization Act
for fiscal year 2005, and amended by Section 404 of Public Law
111-259, the Intelligence Authorization Act for fiscal year
2010.
Subtitle B--Central Intelligence Agency
Section 411. Foreign language proficiency requirements for Central
Intelligence Agency officers
Section 411 makes amendments in Section 104A(g) of the
National Security Act of 1947 which imposes foreign language
requirements on certain personnel within the CIA. Section 411
is intended to tie the need for foreign language skills to
officers in occupations where foreign language ability is most
important, rather than to specific positions, within the
Directorate of Intelligence career service or National
Clandestine Service career service. It is intended to eliminate
the need for the Director of the CIA to approve waivers for the
promotion, appointment, or transfer of personnel such as
attorneys or human resources officers for whom the requirement
is not intended to apply. Section 411 sets the language
proficiency at the objective level of level 3 on the
Interagency Language Roundtable Language Skills Level or a
commensurate proficiency level. Section 411 requires the
Director of the CIA to report to the congressional intelligence
committees on the number of personnel transferred into the
Directorate of Intelligence career service or National
Clandestine Service career service who did not meet the foreign
language requirements of Section 104A(g). It also makes
technical corrections to delete outdated references to the
Directorate of Operations.
Section 412. Acceptance of gifts
Section 412 is a provision, like Section 310, that arose
out of the CIA's review of benefits available to the survivors
of CIA employees killed in the line of duty following the
December 2009 attack at Khowst, Afghanistan. The CIA concluded
that the Director of the CIA did not have the authority under
Section 12 of the CIA Act to accept and use gifts for purposes
related to the welfare, education and recreation of those
survivors. Under current law, the Director of the CIA may
``accept, hold, administer, and use gifts of money, securities
and other property whenever the Director determines it would be
in the interest of the United States . . . for purposes
relating to the general welfare, education, or recreation of
employees or dependents of employees of the Agency or for
similar purposes. . . .''
Section 412 amends Section 12 of the CIA Act to authorize
the Director (or the Director's designee) both to accept gifts
and to use them for the welfare of employees injured in the
line of duty without legal concern whether those actions are
for the general welfare of the CIA employee population as a
whole. It also provides that gifts may be used for the
assistance of the family of CIA officers who were injured or
who died from hostile or terrorist activities or in connection
with other intelligence activities having a substantial element
of risk. All of the authority under Section 12 shall be made
according to regulations developed by the CIA Director in
consultation with the Director of the Office of Government
Ethics, consistent with all relevant ethical constraints and
principles. The Committee intends for gifts to be accepted
under this section by the CIA on behalf of the CIA employees
concerned, and not directly by such employees or their family
members.
Section 413. Public availability of information regarding the Inspector
General of the Central Intelligence Agency
Section 413 requires the Director of the CIA to establish
and maintain on the publicly accessible CIA website information
relating to the CIA IG including methods to contact the IG.
Section 413 is based on a similar requirement in the Inspector
General Reform Act, 5 U.S.C. App. 8L, and is similar to Section
403. The information about the IG is to be obvious and
facilitate accessibility to the IG. Given that most of the IG's
reports will be classified, Section 413 does not require that
IG reports and audits be posted on the publicly accessible
website. Section 413 is based upon a request of the CIA IG.
Section 414. Recruitment of personnel in the Office of the Inspector
General
Section 414 requires the Director of the CIA, in
consultation with the Inspector General of the CIA, to conduct
a study of the personnel issues of the Office of the Inspector
General. The study shall include identification of any barriers
and disincentives to the recruitment or retention of
experienced investigators within the Office of the Inspector
General. The Director shall compare the personnel authorities
of the CIA Inspector General with the personnel authorities of
other federal Inspectors General, including a comparison of the
benefits available to experienced investigators within such
offices with those available to investigators within the Office
of the CIA Inspector General, and shall take such
administrative actions as may be appropriate to address such
disparities. The Director shall report to the congressional
intelligence committees on the administrative actions taken
based on the results of the study and the Director's
recommendations for legislative action, if any, within 90 days
of enactment. By including Section 414, it is the Committee's
intent that unwarranted barriers and disincentives should not
be allowed to prevent the CIA's Office of the Inspector General
from recruiting and retaining the best possible workforce to
carry out its important functions.
Subtitle C--National Security Agency
Section 421. Confirmation of appointment of the Director of the
National Security Agency
Section 421 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 421 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 421 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 421(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.
Section 422. Additional authorities for National Security Agency
security personnel
Section 422 amends Section 11 of the National Security
Agency Act of 1959 to authorize NSA security personnel to
transport apprehended individuals from NSA premises to law
enforcement officials. Under current law, when NSA security
personnel apprehend an individual, they must wait with the
individual until local law enforcement personnel arrive to
complete the transfer of custody. This can require NSA
personnel to wait, frequently for hours, often with the
apprehended individual in a security vehicle, for the transfer
to local law enforcement. According to the DNI, from 2004 to
2009, on 448 occasions, the apprehension of an individual
engaged NSA personnel and transportation resources for over 2
hours.
Section 422 provides a limited expansion of authority for
NSA security personnel to transport apprehended individuals to
local law enforcement within 30 miles of NSA premises. The
Committee intends that this authority be used sparingly by NSA
security personnel under a well-established regime of
administrative controls and management oversight, and only with
prior consent from the accepting jurisdiction.
Subtitle D--Other Elements
Section 431. Appropriations for defense intelligence elements; accounts
for transfer; transfer
Section 431 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 section is intended
to ensure improved auditing of defense intelligence
appropriations.
Section 432. Federal Bureau of Investigation participation in the
Department of Justice leave bank
Section 432 provides for participation of employees of the
Federal Bureau of Investigation (FBI) in the Department of
Justice's Voluntary Leave Bank Program. The Voluntary Leave
Bank Program allows federal employees to donate to and to
receive donations from a leave ``bank'' to cover absences
necessitated by extraordinary medical conditions. Current law
does not allow participation by FBI employees in the
Department's program, although the FBI is part of the
department. While 5 U.S.C. 6372(c) would allow FBI to establish
its own voluntary leave bank program, the Director of the FBI
has determined that it would be more cost effective and
efficient to allow FBI employees to participate in the larger
Department of Justice program and has requested a legislative
provision to accomplish this objective for the overall benefit
of the Bureau and its personnel. Under Section 432, the
Director may consider the protection of sources and methods in
allowing for participation in the leave bank program. In
providing for leave bank opportunities to cover absences
necessitated by extraordinary medical conditions, the Committee
expects the Director will consider any impact on operations of
the Bureau when making a decision on whether to allow FBI
employees to take part in the program.
Section 433. Intelligence community membership of the Office of
Intelligence and Analysis of the Department of Homeland
Security
Section 433 amends Section 3(4)(K) of the National Security
Act of 1947 in order to include the Office of Intelligence and
Analysis of the Department of Homeland Security (DHS) within
the term ``intelligence community'' for purposes of the Act.
This provides for a more specific reference to the DHS
component, in addition to the intelligence element of the Coast
Guard, that is part of the Intelligence Community as Congress
has done in Section 3(4)(I) and (J) for the State and Treasury
Department elements of the Intelligence Community.
TITLE V--OTHER MATTERS
Section 501. Conforming the FISA Amendments Act of 2008 sunset with
other FISA sunsets
Section 501 conforms the sunset for Title VII of FISA, as
added by the FISA Amendments Act of 2008 (Public Law 110-261),
now scheduled to occur on December 31, 2012, to June 1, 2015,
the date recently set by Public Law 112-14 for the other sunset
provisions in the Foreign Intelligence Surveillance Act of
1978.
Title VII of FISA establishes procedures for collection,
pursuant to orders of the Foreign Intelligence Surveillance
Court, of foreign intelligence through the targeting of persons
reasonably believed to be located outside of the United States.
Section 702 governs collection targeted against persons other
than United States citizens or permanent residents of the
United States. Sections 703 and 704 establish procedures,
requiring probable cause determinations by the FISA Court, for
collection against United States persons outside of the United
States. In addition to the judicial oversight established by
these sections of Title VII, Section 702 requires periodic
assessments by the Attorney General, the Director of National
Intelligence, and the Inspectors General of the Department of
Justice and each element of the Intelligence Community that is
authorized to acquire foreign intelligence under Title VII.
Also, Section 707 mandates comprehensive semiannual reports by
the Attorney General to the congressional intelligence and
judiciary committees on the implementation of Title VII. All of
these important collection and oversight provisions will be
repealed at the end of this Congress unless the sunset date for
them is extended.
The alignment of all the remaining sunset dates in FISA--
those recently extended by Congress to June 1, 2015 and the
sunset for Title VII--will provide Congress with an opportunity
to examine comprehensively all expiring authorities at the same
time rather than in a piecemeal fashion. By addressing the
Title VII sunset now, rather than waiting until next year,
Congress will help assure the stability of the foreign
intelligence collection system during the critical times
immediately ahead.
It should also be clear what is not involved in this sunset
extension. Title VIII of FISA, which was added by Title II of
the FISA Amendments Act of 2008, established procedures for
immunity for electronic communication service providers who
furnished assistance to an element of the Intelligence
Community during the President's Surveillance Program between
2001 and 2007. These immunity provisions are not subject to a
sunset. They have been subject, however, to judicial review as
provided for in Title VIII of FISA. The judgment of the United
States District Court for the Northern District of California
upholding the constitutionality of Title VIII of FISA is now
before the United States Court of Appeals for the Ninth
Circuit. In re: National Security Agency Telecommunications
Records Litigation, 633 F. Supp. 2d 949 (N.D. Cal. 2009),
appeal pending, Case No. 09-16676 (9th Cir.). Nothing in the
sunset extension and alignment in Section 501 of the bill will
have any effect on this litigation or the underlying immunity
provision of Title VIII of FISA.
Section 502. Technical amendments to the National Security Act of 1947
Section 502 updates certain references in sections 3(6),
506(b) and 506A of the National Security Act of 1947 from the
``Director of Central Intelligence'' and the ``National Foreign
Intelligence Program'' to the ``Director of National
Intelligence'' and the ``National Intelligence Program.''
Section 503. Technical amendments to Title 18, United States Code
Section 503 updates references in 18 U.S.C. 351(a) to the
Director and Deputy Director of Central Intelligence and
provides that the amended section includes the DNI, the
Principal Deputy DNI, and the Director and Deputy Director of
the CIA among officials covered by the provision.
Committee Comments
Space launch
The Committee remains concerned over the increasing costs
of space launch, in particular, the Air Force's Evolved
Expendable Launch Vehicle (EELV). These costs have increased
dramatically since the submission of the fiscal year 2011
budget request, and are expected to continue to rise despite
significant efforts to curtail costs. Particularly troublesome
are the monopolistic state of EELV providers and the current
structure's perpetuation of the barriers to entry for
alternative launch providers. Removing these barriers could
increase competition and lower costs.
The Committee notes the ongoing debate over the future of
the nation's space launch capabilities, with the national
security space community and the National Aeronautics and Space
Administration (NASA) both having strong equities and providers
of choice. Congressional intent for NASA's space launch systems
was expressed in the National Aeronautics and Space
Administration Authorization Act of 2010 (Public Law 111-267).
The Committee is concerned, however, that maintaining two
separate launch infrastructure and industrial bases, both of
which rely nearly entirely on heavy government funding, is
fiscally unsustainable. Approaching launch from a whole-of-
government perspective will pay great benefits to the taxpayer.
The Committee believes that it is in the nation's economic
and security interests to promote U.S. space launch providers
that are, or are positioning themselves to be, competitive in
the commercial and civil markets. The EELV providers have
demonstrated little success in this regard, leaving them nearly
entirely reliant on U.S. government customers who are forced to
bear the cost.
Today the national security space community currently has
no certified alternative to the EELV program for most of its
launch needs. Other U.S. launch providers, however, show
promise as they compete for commercial, civil, and national
security launch business and develop larger systems, one of
which is in the EELV capability class. These providers must
demonstrate the reliability so well documented with the EELV
program in order to justify launching critical, and expensive,
national security payloads. Regardless, every effort should be
made to support them in this regard, and the Committee is
encouraged by some steps taken by the Air Force to do just
that.
The Committee has grave concerns about the proposed
strategy to reduce cost increases for the EELV systems by
committing to block buys of booster cores for years to come.
Block buys for the next couple of years may have significant
merit and should be considered. However, the Committee is
concerned that committing the nation to the EELV with
substantial block buys of boosters for years to come will
result in a saturated market, probably through the end of this
decade, thereby prolonging an unnecessary barrier to entry for
the other U.S. launch providers to compete with the EELV.
The government should position itself such that if
alternative launch providers can show similar reliability and
performance to EELV with substantial cost savings, the
government would have the flexibility to respond to this
development. The Committee, therefore, encourages the Air Force
to reduce the quantity of EELV block buys planned to support
launches beginning in 2015 to no more than five booster cores
per year for no more than four years.
The Committee also questions the cost of maintaining a
Delta-IV Heavy lift capability. Barring a coherent strategy to
evolve the Delta-IV Heavy to meet NASA requirements, there are
very few requirements for this system. Therefore, the Committee
wishes to understand the potential savings of doing away with a
Delta-IV Heavy launch capability. Consistent with language in
the classified annex accompanying this bill, the Committee
requests that the Air Force and the National Reconnaissance
Office certify expected cost savings to the EELV Launch
Capability contract under three scenarios relating to the
Delta-IV Heavy: (1) removing launch requirements from Cape
Canaveral, (2) removing launch requirements from Vandenberg
AFB, and (3) removing all launch requirements.
Evolutionary Acquisition for Space Efficiency (EASE)
The Committee has concerns about the Defense Department's
Evolutionary Acquisition for Space Efficiency (EASE) strategy.
In a detailed study, the Office of the Secretary of Defense
laid out the rationale for EASE. The merits of EASE include
encouraging program funding stability, reducing technical risk,
reaping the benefits of block buy procurements, stabilizing
portions of the industrial base, and encouraging greater use of
fixed price contracts.
The Committee recognizes the wisdom in many of these steps.
However, the Committee notes that the study of space
acquisitions leading to the EASE strategy focused on industrial
base and funding issues, but paid little attention to a
critical factor in major system acquisitions: program
management. The ramifications of implementing EASE likely will
include a chilling effect on competition and the de facto
instantiation of favored contractors for particular systems.
Furthermore, those favored contractors will be chosen not on
their merits, but by the fact that they are the incumbents
today. These incumbents also happen to be the larger industrial
contractors.
The Committee finds that when wisely applied, by competent
program management, competition pays huge dividends. The
Committee has also noted the dramatic capabilities of the
medium and small sized industrial contractors, who will be
largely relegated to providing payloads and other subsystem
work to the larger prime contractors whose incentive to reduce
costs and innovate will be eroded by the EASE construct.
More fundamentally, EASE seems to be a departure from the
philosophy outlined in previous strategies, such as the DNI's
Vision 2015, which recommends shifting from ``large, expensive
collection platforms towards smaller, netted collection
systems.'' The joint report of the Defense Science Board and
Intelligence Science Board, Integrating Sensor Collected
Intelligence, had similar recommendations, including that
``future acquisition programs disaggregate sensors from
platforms with the goal of acquiring more platforms with
potentially less capable, and therefore less costly, sensors
and plan to achieve increased performance by integrating data
from multiple sensors/platforms.''
Although the Committee acknowledges some of the merits of
EASE, it encourages the Executive Branch to focus at least as
much attention on improving program management. In this way,
the positive effects of competition and the further development
of smaller, more efficient contractors can be garnered.
Intelligence Community performance measurement
In an era of stable or shrinking budgets, the Intelligence
Community must seek out unneeded redundancies and strive for
efficiency. The regular accounting of goals, metrics, and
accomplishments across the entire Intelligence Community--such
as that produced annually in the Intelligence Community's
Summary of Performance and Financial Information Report--is
helpful in finding efficiencies, avoiding unneeded duplication,
and making the intelligence enterprise more nimble. The
Committee believes that the office of the Assistant DNI for
Systems and Resource Analyses (SRA) plays a critical function
in aggressively identifying and realizing savings. The SRA
undertakes cross-cutting analyses to find efficiencies,
performs major issue studies to streamline community
activities, and has found significant cost savings that can be
directed to critical priorities. The SRA has only been in
existence for a short time, but has already made a significant
impact, resulting in significant savings in the fiscal year
2012 budget. The Committee supports the work of this office and
expects it to continue to perform its necessary and valuable
functions.
Given the secrecy of components of the intelligence budget,
it is important to have constant and effective oversight of the
Intelligence Community--by the executive branch, as well as by
the congressional oversight committees. In response to a
question for the record from Senator Warner after the
Committee's National Intelligence Program Budget Hearing, on
March 29, 2011, about how the Intelligence Community complies
with the GPRA Modernization Act of 2010 (Public Law 111-352),
the ODNI indicated that the Intelligence Community currently
already reports quarterly to the Office of Management and
Budget on its Priority Goals--focused on what the Community
seeks to achieve in the next 18-24 months. These quarterly
reports demonstrate progress against the Intelligence
Community's most important mission objectives. The ODNI further
stated that it would be able to provide such quarterly updates
to the Committee. Accordingly, the Committee requests the ODNI
to furnish the Committee copies of such quarterly reports
starting with the second quarter of fiscal year 2011, as well
as any subsequent reports. The Committee expects to receive
these reports no later than three months after enactment of
this legislation.
National Counterterrorism Center
The National Counterterrorism Center (NCTC) is responsible
for strategic operational planning for counterterrorism
activities across the U.S. Government, including interagency
coordination of operational activities and the assignment of
roles and responsibilities. The Director of NCTC is further
charged with aligning counterterrorism resources against the
U.S. Government's National Strategy for Counterterrorism and
producing assessments on the capabilities and gaps related to
these activities.
Given the current fiscal issues facing the United States
and the growing pressures to reduce government spending, the
Committee is concerned about the rising costs associated with
the expansive counterterrorism enterprise. It is important for
Congress to understand how counterterrorism resources align
with mission priorities and objectives.
No later than 90 days from the date of enactment, the
Committee requests that the Director of the NCTC submit a
report to the congressional intelligence committees assessing
the state of the U.S. Government's counterterrorism enterprise
from NCTC's perspective, including a full description of the
resources utilized and how they are tied to counterterrorism
strategy and objectives. The Committee believes efficient
resource allocation to meet government-wide counterterrorism
objectives is critical and encourages NCTC to work with the
Committee on a long-term solution to sharing such information
with Congress.
Maintenance and disposition of ODNI records
As part of its legislative requests for this fiscal year
2012 Authorization, the Administration asked for legislation to
authorize the CIA, at the request and direction of the DNI, to
maintain and dispose of the records of the administrative and
business activities of the ODNI, as the CIA has done since the
establishment of the ODNI in 2005. The original reason for this
arrangement, as described to the Committee, was that the ODNI
lacked the financial, administrative, and technical
capabilities to maintain these records on its own. There has
never been express statutory authority for this arrangement.
The Committee has concluded that the ODNI should maintain
and dispose of its own records rather than delegating this
responsibility to the CIA. It recognizes that a period of time
will be required for the ODNI to undertake the responsibility
for its own records. The Committee requests that the ODNI
inform the congressional intelligence committees about the time
and resources that will be required to accomplish this. In any
event, the Committee expects the transition to be completed
within two years.
Intelligence Community in United States Export Control Regime
The global power and reach of the United States have
depended in large measure on the country's ability to develop
cutting-edge technologies and foster innovative industries
faster than other nations. National creativity, technological
innovation, and scientific prowess have enabled the United
States to develop systems and capabilities that provide a clear
technological advantage over adversaries in almost every
category of scientific or technological endeavor.
Likewise, overseas exports of U.S. technologies contribute
to the nation's economic prosperity and foreign trade balance.
The ongoing demand for superior U.S. technologies in most of
the world's markets and the continued willingness of foreign
governments to make concessions in return for technology
transfers, provide additional weight to American diplomatic
efforts abroad. At the same time, the pace of technological
innovation is increasing overseas, as is the development of
sophisticated manufacturing.
The nation's technological edge, especially in strategic
defense systems, aeronautical and missile technologies,
nuclear, space, and cyberspace programs must be protected. The
Intelligence Community, in cooperation with other agencies of
the Federal Government, is well positioned to determine the
threat that any potential technological export might pose to
U.S. systems, U.S. technological dominance, or U.S. national
security.
Therefore, the Committee requests that no later than 180
days after the date of enactment, the DNI shall provide to the
congressional intelligence committees a report that provides a
full description of the IC's participation in, and
contributions made to, the export control decisionmaking
processes of the United States government.
This report should address, but not be limited to, the
following information: which IC agencies contribute to the
export control review process; the level at which agency
contributions are made, including hours of personnel effort
involved; the process for identifying and closing intelligence
gaps related to understanding foreign technological
capabilities and potential threats; the opportunities that may
exist for new collection and analysis activity; the authorities
under which IC agencies provide input into the export control
process; the training available on export control processes for
IC personnel; and any recommendations for improvements that
should be made in the decisionmaking processes involving the
Intelligence Community.
Cyber supply chain risk
The Committee is concerned about the counterintelligence
risk posed by foreign manufacturers and suppliers of
telecommunications equipment and services to U.S. customers.
While it is neither possible nor desirable, from an economic
standpoint, to foreclose access to U.S. markets, the Committee
believes that U.S. customers of telecommunications equipment
and services--including the United States government--should
incorporate counterintelligence concerns into their procurement
decisions. For example, the Committee believes that there
should be enhanced authority to manage supply chain risks for
civilian procurements, including Intelligence Community
procurements, in addition to the authority that Congress
recently provided for Department of Defense procurements. The
Committee provides for such enhanced authority for Intelligence
Community procurements in Section 309.
A necessary precursor to private and U.S. government
customers incorporating counterintelligence concerns into their
procurement decisions is having access to timely
counterintelligence threat information. Accordingly, to assist
in determining what further measures are required, the
Committee requests the Office of the National
Counterintelligence Executive (NCIX), in coordination with
other Intelligence Community agencies and the Department of
Homeland Security, to coordinate and produce a report on
counterintelligence threats to the U.S. telecommunications
infrastructure, including any risks associated with purchasing
equipment and services from foreign manufacturers and
suppliers. The report should be submitted to the congressional
intelligence committees within 180 days of enactment. The
Committee also requests that the NCIX, in coordination with the
Department of Homeland Security, to produce a plan for sharing
counterintelligence risk information about telecommunications
supply chains with federal and state agencies and the private
sector within 90 days of completion of the coordinated report
on counterintelligence threats. The Committee provides
additional background and guidance on these directions in the
Classified Annex.
Intelligence Advanced Research Projects Activity
The Committee views the role of the Intelligence Advanced
Research Projects Activity (IARPA) as important to the success
of IC research and technology investment and maintenance of the
U.S. Government's strategic advantage. To date IARPA has been
hampered by its narrow contracting authorities. Its current
ability to issue solicitations and make selections works well,
but other contracting authorities seem to be inadequate.
Once IARPA identifies an entity with a promising research
proposal, it requires nine months or more to put a contract in
place. Some sources of innovative research, such as small
businesses, cannot afford to wait nearly a year for an
opportunity to work with IARPA. They may go out of business or
move on to other opportunities in the intervening months.
The Committee has tasked its Technical Advisory Group (TAG)
to examine IARPA, including reviewing the activity's
contracting abilities. Moreover, the Committee requests that
the DNI reevaluate the authorities delegated to the Director of
IARPA and look for additional opportunities to delegate
additional authorities to better support IARPA's mission and
provide to the Committee within 60 days of enactment of this
legislation.
Information integration
The Committee remains impressed with the vision of the
Information Integration Program (I2P). The I2P was initiated in
the summer of 2008 as an informal means of determining areas
within the information technology systems of the Intelligence
Community that could be altered to better enable information
sharing and access, and then providing the guidance and
resources to enable these changes to take place. I2P has a
primary goal of demonstrating how improved connectivity between
and among intelligence agencies could help IC components
perform their mission better. While cost savings may be an
ancillary benefit, the mission focus of I2P proved to be an
attractive motivation for IC personnel.
Despite the substantial promise of I2P, progress has been
slow. Several years since the inception of the program, the IC
still lacks a community-wide authorization and attributes
service and an IC-wide login. Appropriate authorization and
attributes are necessary to provide agencies with the ability
to grant access selectively to their data to personnel across
the IC, while protecting their sensitive material. Such a
technology would help meet the requirement for discoverability
of intelligence information by giving agencies confidence that
their sensitive data can be protected. The Committee requests
that the ODNI identify ways to achieve more quickly the
capability for analysts to discover all relevant data across
the Intelligence Community and provide the results to the
Committee within 60 days of enactment of this legislation.
Core contractors
The Committee for some time has been concerned about the
dramatic increase in the use of contractors by the Intelligence
Community since 9/11. While contractors can serve an important
role in providing expertise and filling an emerging need
quickly, the Committee notes that contractor personnel costs
tend to be substantially more than government personnel rates.
Therefore, the Committee commends the Intelligence Community
for its efforts to reduce core contractors and to convert core
contractors where appropriate to government employees. However,
data reviewed by the Committee indicates that some elements of
the IC have been hiring additional contractors after they have
converted or otherwise removed others, resulting in an overall
workforce that continues to grow.
In order to keep core contractors from increasing in
number, the Committee has recommended in the classified annex
that the number of core contractors in each element of the
Intelligence Community should be capped at the fiscal year 2010
levels in fiscal year 2012. Additionally, the Committee
believes that the all elements of the IC should be able to
track the number of its core contractors on a regular basis.
Currently, most IC agencies have only the capability to compile
data on contractors once a year to respond to the ODNI core
contractor review. The Committee believes that IC elements
should be able to determine their use of core contractors on a
weekly or monthly basis.
Report on elevating Marine Corps Intelligence Chief to 0-9 rank
The head of Marine Corps Intelligence presently is ranked
0-7 while other service intelligence chiefs hold 0-9 rank. The
Committee is concerned that it is not possible for Marine Corps
Intelligence to receive equal consideration when the Corps'
service intelligence chief is ranked lower than other service
chiefs, and that having a lower ranked senior officer will be a
disincentive for Marines who might otherwise pursue an
intelligence career.
As Marine Corps Intelligence takes on more missions and
expands its capability, the Committee believes the Department
of Defense and the Marine Corps should consider elevating the
position of Director of Intelligence (DIRINT) United States
Marine Corps to O-9 rank.
Therefore, within six months of the enactment of this bill,
the Committee requests the United States Marine Corps to
deliver a report to the congressional intelligence and armed
services committees on the costs and implications of elevating
DIRINT, Marine Corps to 0-9 rank and a timeline in which such
could happen.
CIA's homefront program and IC support to deploying employees
The Committee supports the development of a program to
provide support to CIA employees who deploy to the war zones,
and their families. A significant number of CIA personnel have
served in war zones such as Afghanistan, Iraq, and elsewhere.
The Committee is encouraged by the preliminary development of
the ``Homefront Program,'' through which the CIA has provided
support to those who serve in war zones and their families. The
Committee encourages the CIA to continue to implement this
program, and to examine ways that it may be improved and
expanded. The Committee encourages the CIA's Directorate of
Support to review a range of possible enhancements intended to
improve further the family assistance program, and to propose a
comprehensive plan for doing so.
The Committee further encourages the ODNI and components of
the Intelligence Community to share best practices from the
Defense Department's support programs for employees deploying
to war zones and their families. The Committee requests the
ODNI provide the Committee with a brief synopsis of existing
Intelligence Community efforts and ways they may be improved.
Independent review of security implications of ``cloud'' based
architecture
The Committee recognizes that the federal government is
taking steps to move information technology systems (including
those in the Intelligence Community) to a more efficient and
effective ``cloud'' based architecture. Nonetheless, the
security concerns of moving sensitive and critical data onto
cloud-based systems persist, especially given recent widely-
publicized incidents of cyber-attacks against U.S. government
and commercial networks.
The Director of the National Security Agency, General Keith
Alexander, recently indicated that cloud computing could
actually reduce security risks by moving information to a
centralized configuration that would allow for tighter control
over access and more rapid responses to cyber incidents. In
written testimony to the House Armed Services Committee on
March 16, 2011, he stated, ``This [cloud] architecture would
seem at first glance to be vulnerable to insider threats--
indeed, no system that human beings use can be made immune to
abuse--but we are convinced the controls and tools that will be
built into the cloud will ensure that people cannot see any
data beyond what they need for their jobs and will be swiftly
identified if they make unauthorized attempts to access data.''
The Committee therefore requests the Office of the Director
of National Intelligence to commission an independent review of
the efficiency and security implications of moving sensitive
government information--including information dependent upon or
residing upon classified networks--to a cloud-based
architecture. The Committee would like to see the results of
such a review within six months.
Classification review of historical records
Under Executive Order 13526, the Executive Branch has a
system in place for determining whether older classified
materials contain sensitive information that warrant continued
classification. While no such obligation rests on the
Legislative Branch, the Committee has taken recent action to
address the declassification review of Committee records based
on their age. For example, Section 702 of the Intelligence
Authorization Act for fiscal year 2010 authorized the DNI, at
the request of one of the congressional intelligence committees
and in accordance with that committee's procedures, to conduct
a classification review of materials that are not less than 25
years old and were created or provided to the committee by an
executive branch entity.
Section 702 enables the Committee to determine whether a
portion of its historical records of congressional oversight of
the Intelligence Community may be made public in a manner
consistent with national security. The Committee is now
considering whether portions of the Committee's oversight work,
using that executive branch information among other sources,
may also be released in a manner consistent both with national
security and Senate practice concerning historical records. In
all cases, the final decision about any release of historical
records remains with the Committee.
Senate Resolution 400 of the 94th Congress (1976), which
established the Committee, transferred to the Committee the
records of the Select Committee on Governmental Operations with
Respect to Intelligence Activities, generally known as the
Church Committee. That committee helped to establish the
groundwork for our current system of intelligence oversight,
including the creation of the congressional intelligence
committees. The Church Committee released a substantial public
record before concluding its work in 1976, but some parts of
its report as well as hearings and depositions on significant
matters remain classified.
The Committee accordingly requests that the Director of
National Intelligence provide guidance to the Committee on how
to design and prioritize an approach to the review and release,
where appropriate, of early records. The approach should also
consider all costs associated with any declassification review
and potential release of information. The Committee notes that
the Senate Historian has worked with Senate committees on the
review of classified historical records such as those involved
in the Committee on Foreign Relations' twenty-volume
publication of its executive sessions from 1947-1968 (see S.
Prt. 111-23, the 1968 volume released in 2010). The Committee
may invite the participation of this Senate office within the
boundaries of clearance requirements.
Committee Action
On July 28, 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 a managers'
amendment by Chairman Feinstein and Vice Chairman Chambliss to:
(1) amend the section of the bill (Section 305) pertaining to
nuclear proliferation assessment statements to clarify that
these statements, rather than the nuclear cooperation
agreements, shall be submitted to the congressional
intelligence committees; (2) amend the bill to provide the
heads of intelligence elements outside the Department of
Defense additional procurement authorities to manage supply-
chain risk (Section 309); and (3) include a provision in the
classified annex.
By a vote of 8 ayes to 7 noes, the Committee adopted an
amendment by Vice Chairman Chambliss to require the DNI, in
coordination with the Secretary of State, to produce
information concerning monitoring and security assurances for
detainees transferred from the U.S. Naval Station, Guantanamo
Bay, Cuba, and each State Department cable, memorandum, or
report relating to or describing the threat a detainee may or
may not pose (Section 308). 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 7 ayes to 8 noes, the Committee rejected an
amendment by Senator Wyden as modified by Chairman Feinstein to
require the Inspector General of the Department of Justice to
submit a report within one year on implementation of the FISA
Amendments Act of 2008. The votes in person or by proxy were as
follows: Chairman Feinstein--aye; Senator Rockefeller--aye;
Senator Wyden--aye; Senator Mikulski--aye; Senator Nelson--no;
Senator Conrad--aye; Senator Udall--aye; Senator Warner--aye;
Vice Chairman Chambliss--no; Senator Snowe--no; Senator Burr--
no; Senator Risch--no; Senator Coats--no; Senator Blunt--no;
Senator Rubio--no.
By unanimous consent, the Committee agreed to an amendment
to the classified annex by Senator Burr as amended by Chairman
Feinstein.
By unanimous consent, the Committee agreed to an amendment
to the classified annex by Senator Blunt.
By voice vote, the Committee agreed to an amendment to the
classified annex by Senator Rubio.
By voice vote, the Committee agreed to an amendment to the
classified annex by Senator Rubio.
By voice vote, the Committee rejected an amendment by
Senator Wyden and Senator Udall calling for a report from the
Attorney General and the DNI pertaining to interpretations of
domestic surveillance law.
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 August 1,
2011, 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 CHAIRMAN FEINSTEIN
The Committee is reporting out this fiscal year 2012
Intelligence Authorization bill in time for it to be enacted
before the beginning of the next fiscal year, meaning that for
the first time since 2004 the Committee will be exercising its
full ability to direct and influence the Intelligence
Community's activities and budget. By contrast, there were no
enacted intelligence authorization bills for fiscal years 2006
through 2009, and the enacted legislation for 2010 and 2011
were passed after, and midway through, their respective years.
The Committee's action with this legislation is an
important further step toward re-establishing a regular cycle
of annual intelligence authorization acts, and with it the
ability of the Senate Intelligence Committee to have meaningful
oversight, legislative input, and budget authorization.
The legislative portion of the bill contains practical
measures, many in response to Administration requests, to
improve the operations and governance of the Intelligence
Community. Of perhaps even greater importance, the budgetary
part of the bill contained in the classified annex sets forth
an authorization roadmap for the prudent use of fiscal
resources in advance of the consideration of fiscal year 2012
appropriations for intelligence activities, one that recognizes
the nation's financial situation.
The bill and the accompanying classified annex are the
product of months of collaborative work within the Committee to
obtain broad agreement. I again thank all the Members of the
Committee for their efforts and suggestions in putting the bill
together. In particular, I thank Vice Chairman Chambliss for
his partnership and close collaboration.
As is described in the Committee's report, however, there
is a provision in the bill--Section 308, ``Submission of
Information on Guantanamo Bay Detainee Transfers,'' that was
added at markup by an 8-7 vote. Believing that the provision is
ill-advised on a number of grounds, I was among those voting
no.
Section 308 provides that within 45 days of enactment the
Director of National Intelligence, in coordination with the
Secretary of State, shall submit to the House and Senate
Intelligence Committees three categories of information about
the transfer or potential transfer of individuals who are or
have been detained at Guantanamo.
The State Department has communicated its strong objection
to this provision on the grounds that it will require the
Department to provide, through the Director of National
Intelligence, a large amount of documents and other materials
that go beyond what is traditionally shared with the Congress,
including the foreign relations committees.
The Intelligence Committee has done significant oversight
on the matter of detention operations at Guantanamo, the
transfer of detainees from Guantanamo to other countries, and
the threat that former detainees pose to our national security.
There are additional provisions in this legislation, as well as
the classified annex, intended to further the Committee's and
the Intelligence Community's efforts as they relate to
Guantanamo.
It is important, however, for our Committee to respect the
responsibilities of other Senate committees, in this case the
Committee on Foreign Relations, just as we would wish Senate
committees to be respectful of our responsibilities. I am also
concerned that the provision's demand for ``each Department of
State cable, memorandum, or report'' will damage the
Department's ability to conduct diplomatic discussions. Within
our responsibility for intelligence oversight, we can and
should require and receive from the Intelligence Community the
products of its intelligence collection and analysis concerning
former detainees. And we can work cooperatively with the
Committee on Foreign Relations to ensure we are collectively
conducting oversight over the intelligence and foreign
relations aspects of Guantanamo detainee transfers. I do not
believe that this provision is the best way to achieve that
goal.
In a second 8-7 vote, the Committee rejected an amendment
to obtain additional information on implementation of the FISA
Amendments Act of 2008 through a requirement for an assessment
and report by the Department of Justice Inspector General, in
consultation with the Inspectors General of Intelligence
Community elements, on several matters concerning the
implementation of title VII of FISA, as added by the FISA
Amendments Act of 2008.
I supported the amendment in order to obtain information
needed to fulfill our oversight responsibilities on legislation
which the committee authored, especially given the sunset of
some of these authorities and the need for Congress to consider
them again legislatively. While I regret the amendment was not
adopted, I will seek to ensure through hearings and other
oversight activities that our Members receive additional
information about implementation of the Act.
Dianne Feinstein.
ADDITIONAL VIEWS OF RON WYDEN AND MARK UDALL
In May of this year, when the Senate voted to renew the
surveillance authorities contained in the USA PATRIOT Act with
no modifications, we both expressed our concern that there is a
significant discrepancy between what most Americans--including
many members of Congress--think the Patriot Act allows the
government to do and how government officials interpret that
same law.
During the floor debate we offered an amendment, along with
Senator Merkley of Oregon and Senator Tom Udall of New Mexico,
that would have expressed the sense of Congress that it is
entirely appropriate for particular intelligence collection
techniques to remain secret, but that that the laws that
authorize intelligence collection--and the U.S. government's
official interpretation of these laws--should be understandable
to the public, so that these laws can be the subject of
informed public debate and discussion. Our amendment also would
have directed the Attorney General to make certain official
legal interpretations available to the public.
The four of us discussed our amendment on the floor of the
Senate with the Chair of the Intelligence Committee, Senator
Feinstein. Senator Feinstein took our concerns seriously and
proposed to hold a hearing on this issue, so that the Committee
could consider our amendment in the context of the FY2012
Intelligence Authorization bill. We appreciate the seriousness
with which Senator Feinstein responded to our concerns and
followed through on her commitment to ensure that the Committee
examined this issue thoroughly.
After substantial discussion and consideration, we remain
very concerned that the U.S. government's official
interpretation of the Patriot Act is inconsistent with the
public's understanding of the law. During a July 2011 committee
hearing, the General Counsel of the National Security Agency
acknowledged that certain legal pleadings by the executive
branch and court opinions from the Foreign Intelligence
Surveillance Court regarding the Patriot Act are classified. We
have had the opportunity to review these pleadings and rulings,
and we believe that most members of the American public would
be very surprised to learn how federal surveillance law is
being interpreted in secret.
In our view, the executive branch's decision to conceal the
U.S. government's official understanding of what this law means
is unacceptable, and untenable in the long run. Intelligence
agencies need to have the ability to conduct secret operations,
but they should not be allowed to rely on secret laws.
Furthermore, we note that the government has relied on secret
interpretations of surveillance laws in the past, and the
result in every case has been eventual public disclosure,
followed by an erosion of public trust that makes it harder for
intelligence agencies to do their jobs. This outcome can only
be prevented by ensuring that the government's interpretation
of the law is always consistent with the public's
understanding.
During the Intelligence Committee's consideration of this
authorization legislation, we offered a modified version of the
amendment that we proposed to the Patriot Act with Senators
Merkley and Tom Udall in May 2011. Our amendment repeated the
statement that the U.S. government's official interpretation of
surveillance laws should be understandable to the public, but
rather than direct executive branch officials to make any
information public, it simply directed them to report to the
congressional intelligence committees on the problems posed by
this reliance on secret legal interpretations, and a plan for
addressing such problems. We regret that our amendment was not
adopted, but we plan to keep pursuing opportunities to address
what remains, in our view, a very serious problem.
The full text of the amendment as we offered it in
committee is below:
committee amendment proposed by mr. wyden, for himself and mr. udall of
colorado
At the appropriate place, insert the following:
SEC._. REPORT ON SECRET INTERPRETATIONS OF SURVEILLANCE LAW.
(a) Findings.--Congress makes the following findings:
(1) In democratic societies, citizens rightly expect
that their government will not arbitrarily keep
information secret from the public but instead will act
with secrecy only in certain limited circumstances.
(2) The Government of the United States has an
inherent responsibility to protect the citizens of the
United States from foreign threats and sometimes relies
on clandestine methods to learn information about
foreign adversaries, and these intelligence collection
methods are often most effective when they remain
secret.
(3) The citizens of the United States recognize that
their government may rely on secret intelligence
sources and collection methods to ensure national
security and public safety, and such citizens expect
intelligence activities to be conducted within the
boundaries of publicly understood law.
(4) It is essential for the public in the United
States to have access to enough information to
determine how government officials are interpreting the
law, so that voters can ratify or reject decisions that
elected officials make on their behalf.
(5) It is essential that Congress have informed and
open debates about the meaning of existing laws, so
that members of Congress are able to consider whether
laws are written appropriately and may be held
accountable by their constituents.
(6) It is critical that officials of the United
States not secretly reinterpret public laws in a manner
that is inconsistent with the public's understanding of
such laws and not describe the execution of such laws
in a way that misinforms or misleads the public.
(7) Significant interpretations of the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1801
et seq.), as modified by the USA PATRIOT Act (Public
Law 107-56; 115 Stat. 272), which represent the
Government of the United States official
interpretations of the law, are currently being kept
secret from the public because the executive branch has
determined that such interpretations are classified.
(8) While it is entirely appropriate for particular
intelligence collection techniques to be kept secret,
it is critical that the laws that authorize such
techniques and the Government of the United States
official interpretations of such laws not be kept
secret but instead be transparent to the public, so
that such laws may be the subject of informed public
debate and consideration.
(b) Report.--Not later than 60 days after the date of the
enactment of this Act, the Attorney General and the Director of
National Intelligence shall submit to the congressional
intelligence committees a report that includes--
(1) a detailed assessment of the problems posed by
the reliance of government agencies and departments on
interpretations of domestic surveillance authorities
that are inconsistent with the understanding of such
authorities by the public; and
(2) a plan for addressing such problems with regard
to the Foreign Intelligence Surveillance Act of 1978
(50 U.S.C. 1801 et seq.), and, particularly, with the
amendments to such Act made by the USA PATRIOT Act
(Public Law 107-56; 115 Stat. 272).
We also offered a second amendment, which would have
directed the Inspector General of the Department of Justice to
estimate the number of Americans who have had the contents of
their communications reviewed under the FISA Amendments Act of
2008.\1\
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\1\This bill contains a provision that extends the surveillance
authorities granted by the FISA Amendments Act, which are currently
scheduled to expire in 2012, to 2015. Senator Wyden voted against the
bill in committee because of the inclusion of this provision. Senator
Udall supported the overall bill in committee, but agrees that it is
very important for Congress to obtain this information.
---------------------------------------------------------------------------
In July 2011, we wrote to the Director of National
Intelligence and asked how many Americans have had their
communications reviewed under this law. The Director's office
replied promptly, and told us that ``it is not reasonably
possible to count the number of Americans whose communications
may have been reviewed under the authority of the [FISA
Amendments Act]''. While we accept that it might be difficult
for intelligence personnel to determine the exact number of
Americans whose communications have been reviewed, we believe
that it is necessary to get an estimate of this number so that
Congress can understand how the law has been implemented.
It is important to remember that section 702 of the Foreign
Intelligence Surveillance Act, which was created by the FISA
Amendments Act, was specifically written to cover the
surveillance of foreigners outside the United States. In fact,
it requires the Attorney General to develop procedures to
ensure that individuals targeted under this authority are
believed to be outside the United States. So understanding
approximately how many people inside the United States have had
their communications reviewed under this authority is essential
to determining whether this law is working as Congress intended
or not.
Since the Director of National Intelligence has not been
able to provide us with an estimate of how many Americans have
had their communications reviewed, we believe it is appropriate
to direct an independent entity with auditing expertise to
attempt to estimate this number. The Office of the Inspector
General of the Department of Justice has conducted a number of
in-depth audits and investigations of various classified
surveillance programs over the past several years, and these
investigations have identified important issues and uncovered
significant facts. Classified versions of these reports have
been submitted to Congress, and unclassified versions have been
made available to the public, and this has helped to better
inform the debate regarding these surveillance programs. We
believe that the Office of the Inspector General's past work
(including investigative work directed by the FISA Amendments
Act itself) demonstrates that it is capable of carrying out
this review.
Our amendment also would have directed the Inspector
General to review instances where government personnel have
failed to comply with the FISA Amendments Act, and estimate the
number of people inside the United States, if any, who have had
their communications reviewed as a result of these compliance
violations. It is a matter of public record that there have
been incidents in which intelligence agencies have failed to
comply with the FISA Amendments Act, and that certain types of
compliance violations have continued to recur. We believe it is
particularly important to gain an understanding of how many
Americans may have had their communications reviewed as a
result of these violations.
We understand that some of our colleagues are concerned
that our amendment did not explicitly state that the final
report of the Inspector General's investigation should be
classified. We respectfully disagree that this is necessary. In
our view, while it is entirely appropriate for the details of
particular intelligence collection programs to remain
classified, disclosing the approximate total number of
Americans who have had their communications reviewed would not
seem to present a threat to U.S. national security, and to our
knowledge no intelligence agency has suggested that it would.
In any event, we are confident that the executive branch will
seek to classify any information that it believes needs to be
secret, and that it is not necessary for Congress to direct
that particular reports be classified.
We regret that this amendment was also not adopted, but we
will continue to attempt to obtain the answers to the questions
that it sought to resolve, and we look forward to working with
our colleagues on this effort.
The full text of our amendment, as modified and offered in
committee, is below:
COMMITTEE AMENDMENT PROPOSED BY MR. WYDEN, FOR HIMSELF AND MR. UDALL OF
COLORADO
At the appropriate place, insert the following:
SEC._. REPORT ON THE IMPLEMENTATION OF THE FISA AMENDMENTS ACT OF 2008.
(a) Requirement for Report.--Not later than one year after
the date of the enactment of this Act, the Inspector General of
the Department of Justice shall submit to the entities
described in subsection (b) a report on the implementation of
the amendments made by the FISA Amendments Act of 2008 (Public
Law 110-261; 122 Stat. 2436).
(b) Entities Described.--The entities described in this
subsection are the following:
(1) Congress.
(2) The Attorney General.
(3) The Director of National Intelligence.
(4) The court established under section 103 of the
Foreign Intelligence Surveillance Act of 1978 (50
U.S.C. 1803).
(c) Content.--The report required by subsection (a) shall
include the following:
(1) An assessment of the extent to which acquisitions
made under section 702 of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1881a) have
resulted in the acquisition or review of the contents
of communications of persons located inside the United
States, including--
(A) the number of persons located inside the
United States who have had the contents of
their communications reviewed under such
section 702; or
(B) if it is not possible to determine such
number, the estimate of the Inspector General
of the Department of Justice of such number
made using representative sampling or other
analytical techniques.
(2) To the extent that any significant
interpretations of such section 702 are classified, the
assessment of the Inspector General whether any
acquisitions made pursuant to such interpretations have
resulted in the review of the contents of
communications of persons located inside the United
States, including, an estimate of the number, if any,
of persons located inside the United States who have
had the contents of their communications reviewed under
such interpretations.
(3) A review of the Inspector General of incidents of
non-compliance with the amendments made by the FISA
Amendments Act of 2008 (Public Law 110-261; 122 Stat.
2436), with a particular focus on types of non-
compliance incidents that have recurred, including an
estimate of the number, if any, of persons located
inside the United States who have had the contents of
their communications reviewed due to such a non-
compliance incident.
(d) Consultation.--The Inspector General of the Department
of Justice may consult with the Inspectors General of elements
of the intelligence community in preparing the report required
by subsection (a).
(e) Access.--The Inspector General of the Department of
Justice shall have all appropriate access needed to prepare the
report required by subsection (a).
Ron Wyden.
Mark Udall.