[Congressional Record Volume 150, Number 140 (Monday, December 20, 2004)]
[Extensions of Remarks]
[Pages E2207-E2209]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




    CONFERENCE REPORT ON S. 2845, INTELLIGENCE REFORM AND TERRORISM 
                         PREVENTION ACT OF 2004

                                 ______
                                 

                               speech of

                           HON. DUNCAN HUNTER

                             of california

                    in the house of representatives

                       Tuesday, December 7, 2004

  Mr. HUNTER. Mr. Speaker, I submit the following for the Record:


                               Background

       As the lead House conferee on those matters before the 
     conference involving support and execution of defense 
     intelligence activities, I find it necessary to offer 
     amplifying remarks on the intent of House conferees on these 
     critical areas of interest. It is unfortunate that the 
     conference leadership saw fit to reduce the customary 
     statement of managers to the most cursory and minimalist of 
     documents. With all the new organizational structures and 
     revamped relationships required by this legislation, it is 
     particularly critical that clear legislative intent be 
     established to guide the executive branch in implementing and 
     executing this legislation for decades to come.
       Thus, the following remarks represent my attempt to provide 
     such clarifying intent for selected provisions of the 
     conference report on S. 2845 that was approved by the House 
     of Representatives on December 7, 2004.


  House Armed Services Committee Consideration of Intelligence Reform

       During the late summer and early fall of this year, the 
     House Armed Services Committee held a series of hearings on 
     the recommendations contained in the 9/11 Commission Report 
     prior to marking up H.R. 10, the House version of this 
     intelligence reform legislation. The Committee on Armed 
     Services' markup of H.R. 10 was limited to Title 1, the 
     National Security Intelligence Improvement Act of 2004, which 
     addresses the core issue of the commission report, namely the 
     organization of the intelligence community. Thus, during the 
     conference between the Senate and the House, I, as Chairman 
     of the Committee on Armed Services, focused primarily on 
     Title I provisions and the potential effect of these 
     statutory changes on the ability of the Secretary of Defense 
     to ensure that troops in combat have the intelligence support 
     they need.
       Since a large proportion of the funding and personnel 
     involved in the national intelligence mission reside in the 
     Department of Defense and exist in large measure to support 
     troops in combat, the committee was concerned that the 
     reorganization of the intelligence community does not in any 
     way deprive combatant commanders of needed full spectrum 
     intelligence. It was clear as we conducted our deliberations 
     on this matter that the 9/11 Commission found no fault with 
     the operation of the DOD elements of the intelligence 
     community and did not intend to affect the ability of these 
     agencies to support the combatant commanders. It was also 
     clear in my deliberations with fellow conferees in both the 
     Senate and House of Representatives that the conferees had no 
     intent to negatively affect these delicate relationships. In 
     other words, all conferees believe that the Secretary of 
     Defense should continue to be able to manage the elements of 
     the intelligence community resident in DOD to provide all 
     necessary support to commanders in the field. So that 
     there is no misunderstanding of that intent, I have 
     prepared a description of how DOD intelligence support 
     operates today, accompanied by a description of how the 
     conferees intend for the new Director of National 
     Intelligence (DNI) to implement his new authorities with 
     respect to DOD.


     Department of Defense Support of National Intelligence Mission

       The Department of Defense operates the majority of the 
     nation's national intelligence apparatus through the National 
     Security Agency, the National Reconnaissance Office, the 
     National Geospatial-intelligence Agency, and the Defense 
     Intelligence Agency. These agencies support the intelligence 
     requirements of both the Director of Central Intelligence 
     (DCI) and the Secretary of Defense under a well established 
     partnership arrangement. That partnership works effectively 
     today and was effective before September 11, 2001, according 
     to testimony before the committee by the leadership of the 9-
     11 Commission.
       The reason for this complicated arrangement is that our 
     nation's intelligence assets are a unique and valuable 
     instrument of national security policy that must serve 
     multiple purposes. We do not have two separate intelligence 
     systems. Today, the same national capability and the same 
     satellites that inform the President and senior policymakers 
     are also used by front line military forces to carry out 
     their mission. The use of expensive, complex systems for 
     multiple purposes is both efficient and synergistic to 
     effective intelligence analysis. Our tactical successes in 
     both Afghanistan and Iraq, while simultaneously providing 
     strategic intelligence to national policy makers, demonstrate 
     the flexibility and effectiveness of the current intelligence 
     sharing structure.
       This integration of national and tactical intelligence and 
     the sharing of information to users up and down the command 
     chain is a proven strategy that the House Armed Services 
     Committee has been developing for well over a decade. 
     Therefore, the suggestion that national and tactical 
     intelligence operations and assets can be surgically split 
     into separate organizations (and budgets) fails to understand 
     the negative impact such a step would have on how we operate 
     and perform on today's modern battlefield. Consequently, the 
     budget authorities assigned to the newly created Director of 
     National Intelligence (DNI) under H.R. 10 were carefully 
     crafted to preserve the ability of the Secretary of Defense 
     to rely on these agencies to supply critical military 
     intelligence to combatant commanders, yet enable the DNI to 
     effectively perform his national intelligence mission.
       The system works today because of the delicately balanced 
     partnership that exists between the DCI and the Secretary of 
     Defense. Thus, as we codify this new organizational concept 
     that creates a Director of National Intelligence to manage 
     the community, the conferees sought to protect this critical 
     partnership to ensure that we do not weaken those parts of 
     the intelligence system that work well and are critical to 
     the life and death of our men and women in uniform.


                           Conferees' Intent

       H.R. 10 was crafted in such a way that the prerogatives of 
     senior cabinet officials were preserved and the delicate 
     balance described above was maintained, while the Senate bill

[[Page E2208]]

     provided the DNI with more unilateral authority to manage the 
     intelligence community. As would be expected, the conference 
     agreement resulted in compromises that shifted the balance 
     somewhat. In particular, in an effort to bridge the 
     differences between the two bills, House conferees agreed to 
     alternative language formulations on a broad range of issues, 
     including those related to budget authority, budget 
     reprogramming authority, and personnel transfer authority.


                            Budget Execution

       First, the new section 1011 provides the DNI with authority 
     to determine the budgets for national intelligence programs 
     operated by the elements of the intelligence community, 
     including the four major national intelligence agencies that 
     are part of the Department of Defense. The conferees clearly 
     intend that the DNI will rely heavily on the recommendations 
     of the Secretary of Defense in the development and management 
     of the appropriations of any Department of Defense element of 
     the intelligence community, and will not involve himself 
     unnecessarily in the budget details of DOD agencies. Clearly, 
     section 1018 of the conference agreement preserves the 
     authority of the Secretary of Defense to operate his 
     department, including and especially in regard to budgetary 
     matters affecting his agencies. In section 1011, the 
     conferees intended to provide the DNI with broad oversight of 
     national intelligence budgetary matters to be able to assure 
     that national intelligence strategic objectives and programs 
     are adequately supported. Again, the conferees did not intend 
     for the DNI to become routinely involved in internal 
     execution of DOD intelligence programs.


             Classification of Budget Intelligence Topline

       The Senate bill contained a budget execution mechanism that 
     would have resulted in the declassification of the total 
     funding level provided to the intelligence community, known 
     as the topline. The conferees agreed that topline number 
     should remain classified, and deliberately designed the 
     budget execution authorities in section 1011 to achieve that 
     objective. This was an important negotiating point in 
     conference discussions, and there should be no confusion over 
     the intent of the conferees to preserve the secrecy of the 
     total funding allocated to the intelligence activities of the 
     United States.


                          Budget Reprogramming

       Similarly, the conference agreement, also in section 1011, 
     provides the DNI with greater reprogramming authority than is 
     found in H.R. 10. H.R. 10, as passed by the House, provides 
     the DNI with unilateral reprogramming authority within the 
     National Intelligence Program for up to $100 million annually 
     per department for ``unforeseen requirements.'' Even though 
     the conferees agreed in the final conference report to allow 
     the DNI to reprogram within the national intelligence program 
     up to $150 million for any purpose that ``increases 
     efficiency,'' it is the firm expectation of the conferees 
     that any large reprogramming should only be made to meet 
     unforeseen requirements and that every effort should be 
     made to execute such reprogrammings with collaboration and 
     concurrence of the affected agency and department heads. 
     As a matter of policy, the appropriate process for 
     efficiency adjustments to an agency's programs is the 
     regular budget process and not reprogramming actions. 
     While the conference agreement provides the DNI with this 
     reprogramming tool, the conferees expect that use of this 
     authority would be exceedingly rare and in times of real 
     emergency.


                          Personnel Transfers

       Section 1011 also provides the DNI with unilateral 
     authority to transfer personnel out of elements of the 
     intelligence community under limited circumstances. Under the 
     conference agreement, the DNI has the authority to create a 
     new national intelligence center for any reasonable purpose 
     and may transfer up to 100 personnel from anywhere within the 
     intelligence community to the new center, without the 
     concurrence of the head of the agency to which the personnel 
     are assigned. The conferees expect that the DNI will use this 
     authority sparingly and as a last resort. The conferees 
     believe that any emergent need that mandates the creation of 
     a new national intelligence center will be managed in a 
     collegial fashion in any administration, with the DNI and 
     agency heads involved able to jointly determine the 
     appropriate staffing support for the new center. Further, the 
     conferees expect the DNI to develop working agreements with 
     all appropriate Congressional committees of oversight over 
     agencies and departments within the National Intelligence 
     Program to establish necessary notification procedures 
     similar to those utilized for prior approval reprogramming of 
     appropriations.


                          Personnel Management

       A significant proportion of the personnel working in the 
     intelligence community are assigned to the Department of 
     Defense, and military personnel are a large part of that 
     workforce. The conferees agree that the DNI should have a 
     role in the management and professional development of 
     civilian personnel assigned to the disparate parts of the 
     intelligence community, but do not intend that the DNI have 
     the same authority over military personnel. Military 
     personnel are subject to the personnel management provisions 
     found in title 10, United States Code, and are promoted to 
     senior grades based on meeting statutory requirements for 
     joint service. The conferees agree that it would be 
     inappropriate for military personnel to be managed by both 
     the DNI and the Secretary of Defense, and intend that the 
     personnel management authorities found in section 1011 of the 
     conference report apply principally to civilian personnel.


                         Acquisition Authority

       The conferees intend that the provision that provides the 
     DNI with joint milestone decision acquisition authority over 
     defense programs contained in the national intelligence 
     program will be used in a spirit of cooperation with the 
     Secretary of Defense, with each official giving due weight to 
     the needs of the other as new national intelligence programs 
     are procured. In no way do the conferees intend for the 
     DNI to have veto power over DOD programs. The Secretary of 
     Defense retains the authority and responsibility to 
     develop and field intelligence assets that will support 
     the troops in combat. The conferees expect that the 
     Secretary will work with the DNI to develop and field 
     systems that can reasonably accommodate both the DNI's 
     national intelligence needs as well as combatant commander 
     requirements, and expect the DNI to fully support the 
     needs of the Secretary and the combatant commanders.


                   DNI Control over Military Programs

       To ensure that combatant commander requirements were 
     satisfied, H.R. 10 excluded from DNI controls all military 
     intelligence programs within the Joint Military Intelligence 
     Program (JMIP) and the Tactical Intelligence and Related 
     Activities (TIARA) program. The Senate bill provided the DNI 
     with partial control over JMIP programs, including non-
     national, or military programs. The Senate receded from its 
     provision that would provide the DNI control over non-
     national JMIP programs, and the conference report provides 
     that the Secretary of Defense will exclusively manage and 
     execute JMIP programs.
       The conference agreement also goes beyond H.R. 10 in regard 
     to the intelligence tasking authority of the DNI. National 
     intelligence assets provide real time, life and death 
     information to our troops in combat, and must be available to 
     the Secretary of Defense and the combatant commanders when 
     needed. There is broad agreement among conferees that the 
     needs of troops engaged with the enemy shall always take 
     priority in tasking national intelligence assets. I only very 
     reluctantly agreed to this language based on assurances of 
     all the conferees and senior administration officials that 
     the combatant commanders and engaged troops would never be 
     denied the intelligence support they need, notwithstanding 
     the statutory authority of the DNI to direct the assets 
     elsewhere. Furthermore, combatant commanders need 
     intelligence on a continuous basis, not only when engaged in 
     combat operations. The conferees expect that combatant 
     commander requirements will continue to enjoy a high priority 
     for collection and analysis, in times of peace as well as 
     time of war.


       Authority of Director of National Counter Terrorism Center

       Section 1021 of the conference agreement, like H.R. 10, 
     provides the Director of the National Counter Terrorism 
     Center with the authority to conduct ``strategic operational 
     planning'' of the nation's counter terrorism operations. 
     Unlike H.R. 10, the conference agreement defines strategic 
     operational planning with a specificity that could be 
     misinterpreted in a manner that suggests the conferees 
     intended for the NCTC director to become involved in tasking 
     internal elements of agencies to perform such missions. To 
     the contrary, the conferees have included specific language 
     stating that the director may not direct the execution of 
     counterterrorism missions and have included section 1018, 
     which clearly preserves the prerogatives of the chain of 
     command in operational matters. Some managers in the other 
     body have made contradictory statements concerning the role 
     of the NCTC in strategic operational planning. On the one 
     hand, it is suggested that the NCTC would operate much like 
     the Joint Staff, planning broad missions but not becoming 
     immersed in the details. This first interpretation is in 
     fact what the conferees intended. On the other, it has 
     been suggested that strategic operational planning would 
     involve the NCTC in selecting specific mission objectives, 
     and possibly directly tasking subordinate elements of the 
     Department of Defense and other agencies. This sort of 
     activity was decidedly not contemplated by the conferees, 
     and was one reason why House conferees insisted on the 
     inclusion of section 1018 preserving the chain of command. 
     In no case may the NCTC directly task an internal element 
     of the Department of Defense outside the statutory chain 
     of command. The use of military force to achieve national 
     objectives is the statutory responsibility of the 
     Secretary of Defense, and the conferees intend that 
     Secretary will be fully and authoritatively involved in 
     any instance where the NCTC or any other outside agency 
     proposes to employ the assets of the Department of 
     Defense.


                      Chain of Command Protection

       As noted above, the conferees included, with the 
     President's full support, section 1018 that reaffirms the 
     sanctity of the chain of command. The chain of command, by 
     operation of title 10, United States Code, runs

[[Page E2209]]

     from the President to the Secretary of Defense to the 
     combatant commander involved. There must be no confusion 
     about who is in charge in the execution of military 
     operations. The conference report provides the DNI with a 
     broad coordinating and integrating role to ensure that the 
     nation does not endure another intelligence failure, but the 
     conferees have not bestowed upon the DNI the authority to 
     independently direct and manage elements of the intelligence 
     community that are part of other government departments, such 
     as Justice, Treasury, Homeland Security, and most critically, 
     Defense.
       It has been suggested by managers in the other body that 
     section 1018 does not authorize the President or department 
     heads to override the DNI's authority contained in this 
     legislation. That assertion is plainly wrong. The original 
     language that the other body suggested for inclusion in the 
     conference report would have made the DNI's authority in this 
     legislation exempt from existing statutory language 
     concerning the chain of command, such as sections 113(b) and 
     162(b) of title 10, United States Code. However, that 
     language was not accepted by the conferees. The language of 
     section 1018 that was finally agreed to specifically protects 
     the military chain of command. Assertions that the President 
     and the Secretary of Defense have no authority to override 
     the DNI with regard to commanding and controlling all 
     elements of the Department of Defense are not correct. 
     Further, it is important to note that the President has 
     consistently upheld this principle by endorsing the necessity 
     of a clear ``preservation of authorities'' provision in this 
     legislation. As stated in his letter to the conferees of 
     December 6, 2004,
       ``Accordingly, in developing implementing guidelines and 
     regulations for this bill, it is my intention to ensure that 
     the principles of unity of command and authority are fully 
     protected. It remains essential to preserve in the heads of 
     the executive departments the unity of authority over and 
     accountability for the performance of those departments. In 
     particular, as we continue to prosecute the global war on 
     terrorism, the integrity of the military chain of command 
     must continue to be respected and in no way abrogated.''
       It is critical that there be no ambiguity about the intent 
     of Congress as this legislation is implemented, and I will be 
     particularly diligent in my oversight role to ensure that the 
     intelligence needs of the Department of Defense are fully met 
     as the various complex new relationships provided by this 
     legislation are implemented in the years to come.

                          ____________________