[Congressional Record Volume 143, Number 154 (Thursday, November 6, 1997)]
[Senate]
[Pages S11847-S11849]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




 INTELLIGENCE AUTHORIZATION ACT FOR FISCAL YEAR 1998--CONFERENCE REPORT

  The Senate continued with the consideration of the conference report.
  The PRESIDING OFFICER. Under the previous order, the Senate will now 
turn to the conference report on intelligence, with 20 minutes equally 
divided under the control of the Senator from Alabama and the Senator 
from Nebraska, with the Senator from New Jersey to be recognized for 10 
minutes.
  Mr. SHELBY. Mr. President, I rise in my capacity as chairman of the 
Select Committee on Intelligence to support passage of the conference 
report on S. 858, the Intelligence Authorization Act for Fiscal Year 
1998. This important legislation authorizes funds for intelligence 
programs and related activities of the Central Intelligence Agency, the 
National Security Agency, and other Government entities.
  This conference report also represents the culmination of a lengthy 
and detailed review by the Intelligence Committee of the plans, 
policies, and programs contained in the President's budget submission 
for fiscal year 1998. In this regard, I wish to commend the vice 
chairman of the committee, Senator Kerrey from Nebraska, for his 
assistance in crafting this important legislation. Senator Kerrey 
played a pivotal role in shaping this legislation, and I am pleased we 
were able to work together, in a bipartisan manner, to bring this 
legislation to the floor. It's a good bill; my colleagues should 
support it; and the President should sign it into law.
  Let me also take this opportunity to commend Chairman Goss, my 
counterpart on the House Permanent Select Committee on Intelligence, 
along with Mr. Dicks, the ranking minority member. We have developed 
what I consider to be a very positive and productive working 
relationship, which manifested itself in the smooth functioning and 
cordial atmosphere in which our conference deliberations took place.
  Although Senate and House conferees completed action on this 
legislation 7 weeks ago, a joint decision was made not to file the 
conference report at that time. This was due to the fact that the 
conference committee on the Fiscal 1998 National Defense Authorization 
Act had yet to resolve all open issues. Given that funding for all 
intelligence programs and activities is, consistent with past practice, 
included in the intelligence authorization bill, we agreed to withhold 
bringing our bill to a vote until conference action on the Defense 
authorization bill was completed and the Defense authorization bill was 
voted on by the Senate.
  The conferees on S. 858 took several important steps to improve this 
country's ability to collect, analyze, and produce intelligence about 
America's adversaries. We authorized funds above the President's 
request because we believe there are areas where additional resources 
are needed in this post-cold-war period of uncertainty. While the 
mission of our intelligence gathering organizations has not changed, 
the areas on which they must focus have become diverse and more 
challenging.
  I am, therefore, particularly pleased that the conferees agreed with 
the Senate that additional resources should be added for advanced 
research and technology development and in five areas that I call the 
``five C's'': counternarcotics, counterterrorism, counterproliferation, 
counterintelligence, and covert action.
  The conferees did not agree, however, to include Senate section 306, 
``Encouragement of Disclosure of Certain Information to Congress,'' in 
the final conference report. The 20 conferees from the Senate--the 19 
members of the Senate Select Committee on Intelligence and Senator 
Strom Thurmond, the distinguished chairman of the Senate Armed Services 
Committee--voted unanimously in favor of the provision that would 
require the President to notify Federal employees and contractors with 
classified contracts that they are not violating any law, Executive 
order, regulation, or policy if they disclose information, including 
classified information, evidencing wrongdoing to the committees of 
Congress with primary oversight of the Federal department or agency 
involved. A majority of the House conferees voted against the measure, 
but they agreed that the issue should be explored in more detail and 
they committed to producing legislation soon. Both committees will 
schedule hearings on the subject early next year. The conferees did 
include a declaration, in lieu of section 306, expressing the sense of 
Congress that Members of Congress have equal standing with the 
executive branch to receive classified information to carry out their 
constitutionally mandated oversight functions.
  I am disappointed that we were unable to convince a majority of our 
House colleagues to support Senate section 306. Given the importance of 
congressional oversight of intelligence activities, the committee will 
devote significant attention to this important issue in the near future 
and I look forward to producing legislation that both Houses can agree 
on. I also hope that the President will work with the committees in 
drafting such legislation.
  I urge the President to reconsider his threat to veto a provision 
that would allow individuals within his own administration to come 
forward to the appropriate committees of Congress with evidence of 
wrongdoing, rather than leaking it to the press, as seems to be the 
case today.
  Again, Mr. President, I strongly urge my colleagues to support this 
important piece of legislation.
  Mr. KERREY. Mr. President, I rise in my capacity as vice chairman of 
the Intelligence Committee to urge passage of the intelligence 
authorization conference report. The House and Senate both produced 
good bills this year, they fit together quite well, and the conference 
committee under Chairman Shelby's leadership worked out a compromise 
which I recommend to my colleagues. The outcome of the conference 
favors new technology, focuses on today's and tomorrow's hardest 
targets, and increases the usefulness of U.S. intelligence to its 
Government customers and to the public.
  The legislation coming out of conference is not perfect, because it 
drops a provision which the Senate had strongly favored, the provision 
guaranteeing the right of public employees to share classified 
information about wrongdoing directly with the appropriate 
congressional committee. I will return in a moment to the failure to 
include this provision, and I will have more to say in the future about 
the necessity of such a provision.
  Last month, while the conferees were meeting, the CIA was publicly 
celebrating the 50th anniversary of its creation. I salute its 
employees and I join President Clinton in praising their generous 
patriotism, their willingness to take risks for America, and their 
great professional skill. Their successes during the cold war, be they 
in space and

[[Page S11848]]

airborne reconnaissance, human intelligence, covert operations, or 
intelligence analysis, were key to our eventual victory. In the years 
since the cold war the people of the CIA have continued to make a huge 
difference in warning our military, helping our leaders make the right 
policy choices, and keeping the American people safe.
  It shouldn't be surprising that the CIA is a misunderstood 
organization, because it is mostly a secret organization. Its employees 
are secretive about their duties, their budget is secret, their 
operations are secret. Further, while the CIA's failures, both real and 
apparent, will probably find their way into the press, the successes 
will not--and should not. Add the general disinclination these days to 
think deeply about foreign threats and you see the problem. But it is 
in the national interest to confront this problem, and to demonstrate 
to the public the necessity and the necessary uniqueness of the CIA.
  The necessity should be clear. Most countries need an organization, a 
dedicated service, to collect and analyze information so policymakers 
can make good decisions and military forces can be warned and prepared. 
Such a service might also be called upon occasionally to act in a 
clandestine or covert manner, in a way that the Nation's leaders could 
plausibly deny. A great nation with global responsibilities requires a 
highly capable global service. Because the information collection is 
secret--no reason to use an intelligence service to collect what is 
publicly available--and because the resulting analysis may also have to 
be kept secret to protect the secret sources, much of this intelligence 
service's activity should be secret. The necessity for secrecy seems 
self-evident, but in a period like present, when the threats to our 
national life seem remote, it bears repeating. It also bears watching.
  Secrecy, while necessary in intelligence, conflicts with the openness 
required of government operations in a democracy. The oversight roles 
performed by an attentive public and alert media, oversight roles which 
would quickly find wrongdoing in a Government agriculture program, are 
usually unavailable to probe secret intelligence operations. Congress 
has to take up the slack.
  For the first 28 years of CIA's existence, Congress's oversight of 
secret intelligence was benign, distant, and superficial. For the most 
part, Congress trusted the CIA and the other agencies to do the right 
thing. But when we ask Government agencies to operate in secret, to 
take the most serious risks, to conduct operations which the Government 
will publicly deny, vigorous congressional oversight is required. In 
creating the Intelligence Committees of the two Houses in the mid-
1970's, Congress devised a method for legislative oversight of secret 
operations which works well and which has excited the curiosity and 
imitation of many other countries. It is a system which works hard to 
insure U.S. intelligence activities are conducted in accordance with 
U.S. law and American values. It protects the right of Americans not to 
be spied on by their own Government, it protects the taxpayer's dollars 
spent on intelligence, and it protects the employees of intelligence 
agencies from having to carry out an operation which has not been 
approved by the people's representatives. Despite the nostalgic 
complaints from those who never served under the current oversight 
system, congressional oversight has made U.S. intelligence much 
stronger.
  Congressional oversight depends on information. That elementary fact 
is enshrined in the Lloyd-LaFollette Act of 1912, which makes explicit 
the right of employees of the executive branch to directly provide 
information to Congress, and in the more recent Whistleblower 
Protection Act. Particularly in the murky and potentially lethal world 
of intelligence, it seems self-evident that an employee who knew of 
serious wrongdoing might not want to clear with her boss or with her 
agency's inspector general or even with the Justice Department the fact 
that she was going to the Intelligence Committee or the Armed Services 
Committee or another appropriate committee with information about the 
wrongdoing.
  The administration sees it differently. They state the President's 
control of national security information is vested in him by the 
Constitution, specifically by his powers in foreign affairs and as 
commander in chief, and that the provision in the Senate intelligence 
bill authorizing employees to bring classified reports directly to 
Congress violates the Constitution. The administration is also 
concerned that to weaken the President's control of secret information 
is to increase the chance of security leaks--even though Congress has a 
much better record than the executive branch in keeping classified 
information secure. Since a President has the sole authority to 
classify any information he wants, it is possible that some future 
administration could classify a report on sexual harassment or bribery 
or any topic. Congress will be a supplicant for information identifying 
wrongdoing, not an authorizer and overseer of Government activity.
  I must stress that the Clinton administration has given no hint it 
would ever behave in such a fashion; in fact, the intelligence 
committees get more information from this administration than from any 
other in our history. In addition to its many classified notifications 
to the oversight committees, this administration is declassifying data 
from earlier eras and also recently announced the dollar amount of the 
total intelligence budget for the last fiscal year. But ours is a 
government of laws, not individuals, and we must be prepared for more 
contentious relations between the branches, and less principled 
administrations, than we have now.
  The Senate provision was, very simply, about Congress' right to 
Government information and the right of citizens to inform Congress. I 
am disappointed this provision was removed in conference, but I will 
join Chairman Shelby in introducing this provision as separate 
legislation and I am confident we will prevail. The American system of 
Government depends on it.
  I said congressional oversight has made U.S. intelligence better. It 
has also made Congress more informed about the intelligence agencies, 
just as any oversight committee comes to know its agencies well. From 
my vantage point, these agencies are national treasures, but they have 
a potentially fatal defect: they are not effectively portraying to the 
American people the crucial necessity of their work. I know, and my 
colleagues know, how relevant the intelligence community's work is to 
America. But the American people, by and large, do not know. The task 
for the intelligence community is to inform them, to make sure the 
American people know the role of intelligence in protecting their 
freedom and their safety.
  A second task is for the intelligence agencies to treat the American 
people as their customers. In other words, the agencies must put 
priority and resources on their declassification efforts, they must 
respond faster to freedom of information requests, and they must use 
and disseminate open source information the public can use to 
understand their world better and make better decisions. The days when 
intelligence was exclusively a secret activity for an elite inside the 
beltway are over, and if intelligence is to retain its claim on the 
public's resources and rebuild the public's full respect, they ought to 
be over.
  Over the past half-century, our leaders and our military used the 
best intelligence to keep us free and to help us prevail in the global 
struggle with communism. The CIA and its sister agencies went to the 
ends of the earth, the depths of space, and the inner reaches of the 
human personality, to find that intelligence. We all owe them a great 
debt. But this is a new, and far more open, world. The intelligence 
authorization bill provides the resources and the direction for success 
in that new world. But the enthusiastic support of the American people 
is not something Congress can authorize--if we could, we would 
authorize some for ourselves. Only the agencies themselves can accept 
this challenge, and earn the respectful, even admiring and grateful 
support of the great majority of its 260 million customers. In my view, 
Director Tenet and his colleagues are up to the challenge. I yield the 
floor.
  The PRESIDING OFFICER. Who yields time?
  Mr. KERREY. Mr. President, I ask unanimous consent that when Senator 
Torricelli of New Jersey is finished all time be yielded.

[[Page S11849]]

  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from New Jersey is recognized.
  Mr. TORRICELLI. Mr. President, under the original provisions of the 
Senate authorization bill for intelligence, Senator Shelby and Senator 
Kerrey contained in the authorization a provision reasserting the right 
of the Congress to know the truth about activities of the intelligence 
agencies.
  The provision directed the President to tell all Federal employees 
that they can inform the Congress without fear of reprisal and 
prosecution of activities in which the intelligence agencies were 
involved. It was put into a provision. Indeed, the purpose of the 
provision was whether or not intelligence agencies were involved in 
improper or illegal activities.
  The provision pointed out that Members of Congress have a clear right 
to know such information, and, indeed, constitutionally, since they are 
charged with oversight responsibility, cannot meet their constitutional 
duties without Federal employees knowing that they not only have the 
right and the responsibility but, indeed, are free to provide this 
information without retribution.
  Tragically, under the direction of some of the President's senior 
advisers, it was suggested that the President might veto the entire 
bill unless this provision were removed.
  I rise today to compliment Senator Shelby, Senator Kerrey, and the 
Intelligence Committee, and, indeed, this entire Senate for insisting 
upon this provision; and, at the same time to say with regret that it 
has been removed from the legislation.
  It is hard to exaggerate the potential impact of the removal of this 
provision. The secret agency of the Government is overseen by only two 
congressional committees--both select committees, which meet 
understandably in secrecy. Those committees are charged with overseeing 
all of the intelligence agencies of this Government. But they rely upon 
the fact that the leadership of the intelligence community will come to 
the committee with truthful testimony and report on its activities. 
There is no one to rely upon but the leadership of the intelligence 
community itself. All other committees of the Congress know about the 
whistle-blower statutes. Federal employees will come forward if there 
are illegal activities in this Government, or improper activities.
  The intelligence committee has no such assurance with regard to 
intelligence agencies of this Government. The Congress recognized this 
fact. Senator Shelby and Senator Kerrey recognized this fact. They 
acted appropriately.
  It is with great regret that in voting for this conference report 
today I must report and note that the provision--that simple protection 
to allow this Congress to meet its responsibility--is no longer 
contained in the bill.
  I do, however, note and compliment the Intelligence Committee for 
they have rejected unanimously the executive branch position as 
unconstitutional and have inserted language in the conference report 
making clear that the executive branch cannot unilaterally withdraw 
congressional prerogatives. So, while the original language is no 
longer contained in the bill, it is also made clear that the Congress 
is insisting upon its prerogatives.
  I hope, Mr. President, that President Clinton will rethink his 
position, and next year and in future years will return to the question 
of authorization of the intelligence community. We once again will be 
in a position to place into legislation clear and effective protections 
that this Congress will be assured that every employee of the Federal 
Government will know that they have a right and a responsibility to 
come to this Congress whenever they believe improper or illegal 
activities are taking place and that they can do so without fear of 
retribution.
  Mr. President, I support the conference report. But I do regret that 
the administration has insisted upon the removal of this very 
worthwhile provision.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The question is on agreeing to the conference 
report.
  The conference report was agreed to.
  Mr. SHELBY. Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. INHOFE. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Gorton). Without objection, it is so 
ordered.

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