[Congressional Bills 111th Congress]
[From the U.S. Government Publishing Office]
[S. 1528 Introduced in Senate (IS)]
111th CONGRESS
1st Session
S. 1528
To establish a Foreign Intelligence and Information Commission, and for
other purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
July 28, 2009
Mr. Feingold introduced the following bill; which was read twice and
referred to the Select Committee on Intelligence
_______________________________________________________________________
A BILL
To establish a Foreign Intelligence and Information Commission, and for
other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Foreign Intelligence and Information
Commission Act''.
SEC. 2. DEFINITIONS.
In this Act:
(1) 2005 national intelligence strategy.--The term ``2005
National Intelligence Strategy'' means the National
Intelligence Strategy of the United States of America released
by the Director of National Intelligence on October 26, 2005.
(2) 2006 annual report of the united states intelligence
community and 2006 annual report.--The terms ``2006 Annual
Report of the United States Intelligence Community'' and ``2006
Annual Report'' mean the 2006 Annual Report of the United
States Intelligence Community released by the Director of
National Intelligence in February 2007.
(3) Commission.--The term ``Commission'' means the Foreign
Intelligence and Information Commission established in section
4(a).
(4) Foreign intelligence, intelligence.--The terms
``foreign intelligence'' and ``intelligence'' have the meaning
given those terms in section 3 of the National Security Act of
1947 (50 U.S.C. 401a).
(5) Information.--The term ``information'' includes
information of relevance to the foreign policy of the United
States collected and conveyed through diplomatic reporting and
other reporting by personnel of the Government of the United
States who are not employed by an element of the intelligence
community, including public and open-source information.
(6) Strategic plan of the department of state.--The term
``Strategic Plan of the Department of State'' means the
Strategic Plan for Fiscal Years 2007-2012 of the Department of
State and the United States Agency for International
Development revised on May 7, 2007.
SEC. 3. FINDINGS.
Congress makes the following findings:
(1) Accurate, timely, and comprehensive foreign
intelligence and information are critical to the national
security of United States and the furtherance of the foreign
policy goals of the United States.
(2) It is in the national security and foreign policy
interest of the United States to ensure the global deployment
of personnel of the Government of the United States who are
responsible for collecting and reporting foreign intelligence
and information, including personnel from the intelligence
community, the Department of State, and other agencies and
departments of the Government of the United States, and that
adequate resources are committed to effect such collection and
reporting.
(3) The 2005 National Intelligence Strategy and the 2006
Annual Report of the United States Intelligence Community
identified 5 major missions of the intelligence community to
support the national security requirements of the United
States, the first 2 of which, defeating terrorism and
preventing and countering the spread of weapons of mass
destruction, are global and transnational in nature.
(4) The third major mission identified by the 2005 National
Intelligence Strategy and the 2006 Annual Report, bolstering
the growth of democracy and sustaining peaceful democratic
states, requires a global commitment of collection, reporting,
and analytical capabilities.
(5) The 2005 National Intelligence Strategy and the 2006
Annual Report identify as a major mission the need to
``anticipate developments of strategic concern and identify
opportunities as well as vulnerabilities for decision makers''.
(6) The 2006 Annual Report provides the following:
(A) ``In a world in which developments in distant
reaches of the globe can quickly affect American
citizens and interests at home and abroad, the
Intelligence Community must alert policy makers to
problems before they escalate and provide insights into
their causes and effects. Analysis must do more than
just describe what is happening and why; it must
identify a range of opportunities for (and likely
consequences of) diplomatic, military, law enforcement,
economic, financial, or homeland security action. To
support policymakers, the Intelligence Community should
develop, sustain, and maintain access to expertise on
every region, every transnational security issue, and
every threat to the American people.''.
(B) ``We still need to re-balance, integrate, and
optimize collection capabilities to meet current and
future customer and analytic priorities. Collection is
. . . what gives the [Intelligence Community] its
`competitive advantage' in protecting the United States
and its interests.''.
(C) ``One challenge to improving the coverage of
emerging and strategic issues across the Intelligence
Community has been the diversion of resources to
current crisis support . . .''.
(D) ``Collection against terrorists in places like
Iraq and Afghanistan took a substantial share of the
[Intelligence Community's] resources and efforts in FY
2006.''.
(E) ``With so many [Intelligence Community]
resources dedicated to the War on Terror and WMD
programs in closed regimes, the [Intelligence]
Community's collection efforts still have to devote
significant attention to potential or emerging threats
of strategic consequence.''.
(7) On January 23, 2007, the Deputy Director of National
Intelligence for Collection testified to the Select Committee
on Intelligence of the Senate that there is a ``need to get the
Intelligence Community back to what I grew up calling global
reach'', stating that ``we don't have that today''. She further
testified that ``our challenge is . . . with [Congress] help
[to get back] to a place where we can do global reach, and pay
attention to places that we are not.''.
(8) On February 14, 2008, the Director of National
Intelligence testified to the Select Committee on Intelligence
of the Senate that ``certainly current crisis support takes a
disproportionate share'' of intelligence resources over
emerging and strategic issues.
(9) In responses to questions posed by the Select Committee
on Intelligence of the Senate in advance of the February 5,
2009, hearing on the nomination of Leon Panetta to be Director
of the Central Intelligence Agency, Mr. Panetta stated that ``I
am also concerned that we have not devoted sufficient resources
to a broader set of national intelligence challenges--such as
Russia, China, the global economic downturn, as well as
unstable and weak governments in places such as Africa and
Latin America.''.
(10) On February 12, 2009, the Director of National
Intelligence testified to the Select Committee on Intelligence
of the Senate that ``I'd say the most significant gaps are the
areas that are not traditional State threats, that we have not
figured out the right way to collect information and we have
not grown the analysts to do it. . . . We're not as good with
non-state actors.''.
(11) On March 26, 2009, the Director of National
Intelligence stated that ``We re-evaluate that National
Intelligence Priority Framework formally ever six months and
informally, as we have. And its quite remarkable, if you--you
know those time-lapse pictures where things change? If you
showed a time-lapse picture of that National Intelligence
Priority Framework, you'd see, sort of, colors shifting over
time as things came up, in terms of their threat or in terms of
an opportunity that they--so I just, I think it's a mistake to
tie us down to, this is my important priority. There are
enduring things we have to spend a lot of time on because you
can't instantly generate intelligence about a country that's
very good at keeping its secrets that you know is going to be a
factor for a long time. And we have to work on those--we have
to work on those every time. We have to keep an excellent
baseline understanding of what's going on in the world, but
then we need to be able to flex.''.
(12) The National Commission on Terrorist Attacks Upon the
United States (hereinafter referred to as the ``9/11
Commission'') reported that ``To find sanctuary, terrorist
organizations have fled to some of the least governed, most
lawless places in the world. The intelligence community has
prepared a world map that highlights possible terrorist havens,
using no secret intelligence--just indicating areas that
combine rugged terrain, weak governance, room to hide or
receive supplies, and low population density with a town or
city near enough to allow necessary interaction with the
outside world. Large areas scattered around the world meet
these criteria.''.
(13) The 9/11 Commission recommended that the ``U.S.
Government must identify and prioritize actual or potential
terrorist sanctuaries. For each, it should have a realistic
strategy to keep possible terrorists insecure and on the run,
using all elements of national power. We should reach out,
listen to, and work with other countries that can help.''.
(14) On May 6, 2008, the Acting Director of the National
Counterterrorism Center testified to the Select Committee on
Intelligence of the Senate that ``I wish I had more resources
to dedicate to longer-term threats, absolutely,'' that ``much
of the information about the instability that can lead to safe
havens or ideological radicalization comes not from covert
collection but from open collection, best done by Foreign
Service officers,'' and that there should be ways to direct
resources toward whoever is best positioned to learn about
safe-haven conditions.
(15) On November 1, 2005, the Director of National
Intelligence Open Source Center was established with functions
that ``include collection, analysis and research, training, and
information technology management to facilitate government-wide
access and use'' of openly available information.
(16) The Strategic Plan of the Department of State provides
as a strategic goal that ``Our diplomatic and development
activities will reduce the threat or impact of violent conflict
by developing early warning . . . capability.''.
(17) On January 22, 2009, James Steinberg, a nominee to be
Deputy Secretary of State, testified to the Committee on
Foreign Relations of the Senate that ``if we're going to be
effective in this move towards smart power, then we have to
understand how we reprioritize our resources to be able to
achieve that . . . If we only think about the crisis of the
moment, then we're not prepared as new challenges emerge. And
we've seen this time and time again, that issues that were not
immediately on the radar screen don't get the attention they
deserve. . . . So the idea of looking forward and trying to
figure out over the long-term where our priorities need to be,
how do we anticipate some of these challenges, and then judge
how we have sort of assigned resources to take care of not only
those current needs but also those long-term challenges I think
has to be very important and part of a strategic planning
strategy . . . although we have a very strong intelligence
community, that there is a tremendous resource of people who've
lived and worked out in the countries that we're dealing with
and that, for a variety of reasons, the intelligence community
is not always the best equipped to do that. They bring their
own special skills. But the Foreign Service officers, and also
people from outside the government, are enormous sources of
information and value. And we need to find better ways, in my
judgment, to have more contact with people in the private
sector, from the NGOs, from the business community, from
universities and the like, as part of our being able to touch
and feel what's going on the ground.''.
(18) On January 22, 2009, Jacob Lew, a nominee to be Deputy
Secretary of State, testified to the Committee on Foreign
Relations of the Senate that ``I believe strongly that
resources have to follow priorities. The decision of where we
need to be and what kinds of skills we need have to fit into a
comprehensive strategy. . . . We need to work with our other
Cabinet agency partners. There are 20 government agencies that
have resources that work in or through our embassies. We don't
need to recreate the wheel; we need to cooperate with each
other and make sure that we have enough Foreign Service, civil
service and locally engaged staff so that we can effectively
coordinate the efforts that the United States puts on the
ground. I think that it all begins with the strategic planning
process. If we don't have a clear vision of what we need and
what we want, were not going to be able to make the right
resource allocation decisions. And we have to be able to look
beyond this week, next week, or even next year. . . . We need
to reach not just into the building but all the way into the
field and make it clear that we have every intention of
bringing the resources of the State Department to bear as we
deal with these kinds of problems and challenges abroad, that
we have knowledge in our embassies, in our consulates, about a
range of issues, not just political issues--economic issues,
scientific issues, cultural issues--that give us the broadest
understanding of what's going on in an increasingly global
world.''.
(19) The Legal Attache offices and sub-offices of the
Federal Bureau of Investigation are currently located in 75
cities around the world, providing coverage for more than 200
countries, territories, and islands.
(20) On October 4, 2007, Thomas V. Fuentes, Assistant
Director of the Federal Bureau of Investigation for Office of
International Operations, testified to the Subcommittee on
Border, Maritime, and Global Counterterrorism of the Committee
on Homeland Security of the House of Representatives that the
``core mission'' of the Legal Attache offices ``is to establish
and maintain liaison with principal law enforcement and
security services in designated foreign countries . . .
enabl[ing] the FBI to effectively and expeditiously conduct its
responsibilities in combating international terrorism,
organized crime, cyber crime, and general criminal matters,''
and that while ``they do not conduct foreign intelligence
gathering,'' ``typical duties'' include . . . ``conducting
investigations in coordination with the host government;
sharing investigative leads and information; briefing Embassy
counterparts from other agencies, including law enforcement
agencies, as appropriate, and Ambassadors . . . providing
situation reports concerning cultural protocol; [and] assessing
political and security climates.''.
(21) The July 2008 Preliminary Findings by the Project on
National Security Reform, entitled ``Enduring Security in an
Unpredictable World: the Urgent Need for National Security
Reform,'' included the following:
(A) The lack of a national security strategy that
clearly links ends, ways, and means and assigned roles
and responsibilities to each department has encouraged
a proliferation of department-level strategies. These
department strategies are uncoordinated and do not
systematically generate capabilities required for
national objectives.
(B) The resource allocation process is not driven
by any overall national plan or strategy for achieving
broad objectives, and the results or effectiveness of
the budgeting process cannot be measured against such
objectives.
(C) The national security system tends to
overemphasize traditional security threats and under
emphasize emerging challenges.
SEC. 4. ESTABLISHMENT AND FUNCTIONS OF THE COMMISSION.
(a) Establishment.--There is established in the legislative branch
a Foreign Intelligence and Information Commission.
(b) Functions.--The Commission shall--
(1) evaluate any current processes or systems for the
strategic integration of the intelligence community, including
the Open Source Center, and other elements of the United States
Government, including the Department of State, with regard to
the collection, reporting and analysis of foreign intelligence
and information;
(2) provide recommendations to improve or develop such
processes or systems to include the development of an inter-
agency strategy that identifies--
(A) the collection, reporting, and analysis
requirements of the United States Government;
(B) the elements of the United States Government
best positioned to meet collection and reporting
requirements;
(C) collection and reporting missions for the
intelligence community and other elements of the United
States Government based on the requirements of the
United States Government, comparative institutional
advantages, and other relevant factors;
(D) analytical capabilities needed to achieve the
requirements of the United States Government; and
(E) inter-agency budget and resource allocations
necessary to achieve such collection, reporting, and
analytical requirements;
(3) evaluate the extent to which current intelligence
collection, reporting, and analysis strategies are aimed at
providing global coverage and anticipating future threats,
challenges, and crises;
(4) provide recommendations on how to incorporate into the
inter-agency strategy the means to anticipate future threats,
challenges, and crises, including by identifying and supporting
collection, reporting, and analytical capabilities which are
global in scope and which are directed at emerging, long-term,
and strategic targets;
(5) provide recommendations on strategies for sustaining
human and budgetary resources to effect the global collection
and reporting missions identified in the inter-agency strategy,
including the prepositioning of collection and reporting
capabilities;
(6) provide recommendations for developing, clarifying,
and, if necessary, bolstering current and future collection and
reporting roles and capabilities of elements of the United
States Government outside the intelligence community deployed
overseas;
(7) provide recommendations related to the role of
individual country missions in contributing to the inter-agency
strategy;
(8) evaluate the extent to which the establishment of new
embassies and out-of-embassy posts are able to contribute to
expanded global coverage and increased collection and reporting
and provide recommendations related to the establishment of new
embassies and out-of-embassy posts;
(9) provide recommendations related to the establishment of
any new executive branch entity, or the expansion of the
authorities of any existing executive branch entity, as needed
to improve the strategic integration described in paragraph (1)
and develop and oversee the implementation of the inter-agency
strategy;
(10) provide recommendations on any legislative changes
necessary to establish any new entity or to expand the
authorities of any existing entity, as described in paragraph
(9);
(11) provide recommendations on processes for developing
and presenting to Congress budget requests for each relevant
element of the United States Government that reflect the
allocations identified in the inter-agency strategy and for
congressional oversight of the development and implementation
of the strategy; and
(12) provide recommendations on any institutional reforms
related to the collection and reporting roles of individual
elements of the United States Government outside the
intelligence community, as well as any budgetary, legislative,
or other changes needed to achieve such reforms.
SEC. 5. MEMBERS AND STAFF OF THE COMMISSION.
(a) Members of the Commission.--
(1) Appointment.--The Commission shall be composed of 10
members as follows:
(A) Two members appointed by the majority leader of
the Senate.
(B) Two members appointed by the minority leader of
the Senate.
(C) Two members appointed by the Speaker of the
House of Representatives.
(D) Two members appointed by the minority leader of
the House of Representatives.
(E) One nonvoting member appointed by the Director
of National Intelligence.
(F) One nonvoting member appointed by the Secretary
of State.
(2) Selection.--
(A) In general.--Members of the Commission shall be
individuals who--
(i) are private citizens; and
(ii) have--
(I) knowledge and experience in
foreign information and intelligence
collection, reporting, and analysis,
including clandestine collection and
classified analysis, diplomatic
reporting and analysis, and collection
of public and open source information;
(II) knowledge and experience in
issues related to the national security
and foreign policy of the United States
gained by serving as a senior official
of the Department of State, a member of
the Foreign Service, an employee or
officer of an appropriate agency or
department of the United States, or an
independent organization with expertise
in the field of international affairs;
or
(III) knowledge and experience with
foreign policy decisionmaking.
(B) Diversity of experience.--The individuals
appointed to the Commission should be selected with a
view to establishing diversity of experience with
regard to various geographic regions, functions, and
issues.
(3) Time of appointment.--The appointments under subsection
(a) shall be made not later than 60 days after the date of the
enactment of this Act.
(4) Term of appointment.--Members shall be appointed for
the life of the Commission.
(5) Vacancies.--Any vacancy of the Commission shall not
affect the powers of the Commission and shall be filled in the
manner in which the original appointment was made.
(6) Chair.--The members of the Commission shall designate 1
of the voting members to serve as the chair of the Commission.
(7) Quorum.--Six members of the Commission shall constitute
a quorum for purposes of transacting the business of the
Commission.
(8) Meetings.--The Commission shall meet at the call of the
chair and shall meet regularly, not less than once every 3
months, during the life of the Commission.
(b) Staff.--
(1) In general.--The chair of the Commission may, without
regard to the civil service laws and regulations, appoint and
terminate an executive director and, in consultation with the
executive director, appoint and terminate such other additional
personnel as may be necessary to enable the Commission to
perform its duties. In addition to the executive director and 1
full-time support staff for the executive director, there shall
be additional staff with relevant intelligence and foreign
policy experience to help support the Commission's work.
(2) Selection of the executive director.--The executive
director shall be selected with the approval of a majority of
the members of the Commission.
(3) Compensation.--
(A) Executive director.--The executive director
shall be compensated at the rate payable for level IV
of the Executive Schedule under section 5315 of title
5, United States Code.
(B) Staff.--The chair of the Commission may fix the
compensation of other staff of the Commission without
regard to the provisions of chapter 51 and subchapter
III of chapter 53 of title 5, United States Code,
relating to classification of positions and General
Schedule pay rates, except that the rate of pay for
such personnel may not exceed the rate payable for
level IV of the Executive Schedule under section 5315
of such title.
(c) Experts and Consultants.--This Commission is authorized to
procure temporary or intermittent services of experts and consultants
as necessary to the extent authorized by section 3109 of title 5,
United States Code, at rates not to exceed the maximum annual rate of
basic pay payable under section 5376 of such title.
(d) Staff and Services of Other Agencies or Department of the
United States.--Upon the request of the Commission, the head of an
agency or department of the United States may detail, on a reimbursable
or nonreimbursable basis, any of the personnel of that department or
agency to the Commission to assist it in carrying out this Act. The
detail of any such personnel shall be without interruption or loss of
civil service or Foreign Service status or privilege.
(e) Security Clearance.--The appropriate agencies or departments of
the United States shall cooperate with the Commission in expeditiously
providing to the members and staff of the Commission appropriate
security clearances to the extent possible pursuant to existing
procedures and requirements.
SEC. 6. POWERS AND DUTIES OF THE COMMISSION.
(a) In General.--
(1) Hearings and evidence.--The Commission may, for the
purpose of carrying out this Act--
(A) hold hearings, sit and act at times and places
in the United States and in countries in which the
United States has a diplomatic presence, take
testimony, and receive evidence as the Commission
considers advisable to carry out this Act; and
(B) subject to subsection (b)(1), require, by
subpoena or otherwise, the attendance and testimony of
such witnesses and the production of such books,
records, correspondence, memoranda , papers, and
documents, as the Commission considers necessary.
(b) Subpoenas.--
(1) Issuance.--
(A) In general.--A subpoena may be issued under
this section only--
(i) by the agreement of the chair of the
Commission; and
(ii) by the affirmative vote of 5 members
of the Commission.
(B) Signature.--Subject to subparagraph (A),
subpoenas issued under this section may be issued under
the signature of the chair or any member designated by
a majority of the Commission and may be served by any
person designated by the chair or by a member
designated by a majority of the Commission.
(2) Enforcement.--
(A) In general.--In the case of contumacy or
failure to obey a subpoena issued under this section,
the United States district court for the judicial
district in which the subpoenaed person resides, is
served, or may be found, or where the subpoena is
returnable, may issue an order requiring such person to
appear at any designated place to testify or to produce
documentary or other evidence. Any failure to obey the
order of the court may be punished by the court as a
contempt of that court.
(B) Additional enforcement.--In the case of any
failure of any witness to comply with any subpoena or
to testify when summoned under authority of this
section, the Commission may, by majority vote, certify
a statement of fact constituting such failure to the
appropriate United States attorney, who may bring the
matter before the grand jury for its action, under the
same statutory authority and procedures as if the
United States attorney had received a certification
under sections 102, 103, or 104 of the Revised Statutes
of the United States (2 U.S.C. 192, 193, and 194).
(c) Information From Federal Agencies.--The Commission may secure
directly from any agency or department of the United States such
information as the Commission considers necessary to carry out this
Act. Upon request of the chair of the Commission, the head of such
agency or department shall furnish such information to the Commission,
subject to applicable law.
(d) Postal Services.--The Commission may use the United States
mails in the same manner and under the same conditions as an agency or
department of the United States.
(e) Administrative Support.--The Administrator of the General
Services Administration shall provide to the Commission on a
reimbursable basis (or, in the discretion of the Administrator, on a
nonreimbursable basis) such administrative support services as the
Commission may request to carry out this Act.
(f) Administrative Procedures.--The Commission may adopt such rules
and regulations, relating to administrative procedure, as may be
reasonably necessary to enable it to carry out this Act.
(g) Travel.--
(1) In general.--The members and staff of the Commission
may, with the approval of the Commission, conduct such travel
as is necessary to carry out this Act.
(2) Expenses.--Members of the Commission shall serve
without pay but shall be allowed travel expenses, including per
diem in lieu of subsistence, at rates authorized for employees
of agencies under subchapter I of chapter 57 of title 5, United
States Code, while away from their homes or regular places of
business in the performance of services for the Commission.
(h) Gifts.--No member of the Commission may receive a gift or
benefit by reason of such member's service on the Commission.
SEC. 7. REPORT OF THE COMMISSION.
(a) In General.--
(1) Interim report.--Not later than 1 year after the
members of the Commission are appointed under section 5(a), the
Commission shall submit an interim report to the congressional
intelligence committees setting forth the preliminary findings
and recommendations of the Commission described in section
4(b).
(2) Final report.--Not later than 4 months after the
submission of the report required by paragraph (1), the
Commission shall submit a final report setting forth the final
findings and recommendations of the Commission described in
section 4(b) to the following:
(A) The President.
(B) The Director of National Intelligence.
(C) The Secretary of State.
(D) The congressional intelligence committees.
(E) The Committee on Foreign Relations of the
Senate.
(F) The Committee on Foreign Affairs of the House
of Representatives.
(b) Individual or Dissenting Views.--Each member of the Commission
may include that member's dissenting views in a report required by
paragraph (1) or (2) of subsection (a).
(c) Form of Report.--The reports required by paragraphs (1) and (2)
of subsection (a), including any finding or recommendation of such
report, shall be submitted in both an unclassified and a classified
form.
SEC. 8. TERMINATION.
The Commission shall terminate 60 days after the submission of the
report required by section 7(a)(2).
SEC. 9. NONAPPLICABILITY OF FEDERAL ADVISORY COMMITTEE ACT.
The Federal Advisory Committee Act (5 U.S.C. App.) shall not apply
to the Commission.
SEC. 10. FUNDING.
(a) Transfer From the National Intelligence Program.--Of the
amounts available for the National Intelligence Program for fiscal year
2009, $4,000,000 shall be available for transfer to the Commission to
carry out this Act.
(b) Availability.--The amounts made available to the Commission
pursuant to subsection (a) shall remain available until the termination
of the Commission.
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