[Congressional Record Volume 150, Number 140 (Monday, December 20, 2004)]
[Extensions of Remarks]
[Pages E2209-E2210]
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. PETER HOEKSTRA

                              of michigan

                    in the house of representatives

                       Tuesday, December 7, 2004

  Mr. HOEKSTRA. Mr. Speaker, as chairman of the conference on the bill 
I would also like to briefly discuss the interpretation of this 
legislation.
  The conference report embodies the substantial agreement between the 
House bill, H.R. 10, and the Senate bill, S. 2845, on the core reforms 
to be carried out by this legislation. It is also important to note, 
however, that the conference faced many challenges in reconciling often 
fundamentally different philosophies and visions underlying those 
reforms and the specific provisions in each bill. Accordingly, the 
conferees agreed to submit only a very limited Joint Explanatory 
Statement on the conference report, relying on the text of the 
legislation to represent our agreements.
  Only that text, which is controlling, and the Joint Explanatory 
Statement were agreed to by both houses and reflect the intent of the 
conferees. I should also note that Chairman Hyde intends to submit a 
statement for the record reflecting bipartisan and bicameral 
understandings with respect to certain foreign affairs provisions of 
the bill. Other statements by Members of Congress outside the scope of 
the Joint Explanatory Statement, media reports, or the reports or work 
product of any of the outside panels or commissions whose work 
contributed to this legislation reflect their own views and should not 
be construed as determinative guidance with respect to legislative 
intent.
  While that framework ultimately controls interpretation of the bill, 
I would like to note my understanding as chairman of the conference of 
several matters within this legislation.


          Authorities of the Director of National Intelligence

  The nature of the authorities to be granted to the Director of 
National Intelligence, DNI, and the relationship of the Director to 
other Federal officials were delicate and precisely negotiated issues, 
with resulting agreements reflected in the legislative language of the 
conference report. Only that legislative language controls the 
authorities of the DNI.
  This principle bears special emphasis in a number of areas. With 
respect to budget formulation, the text of the agreement carefully and 
explicitly specifies the authorities of the DNI and the relationships 
between the DNI, the heads of individual agencies and organizations 
within the National Intelligence Program, and the heads of executive 
departments containing those agencies and organizations. Those roles 
and authorities should be construed solely by reference to the 
provisions of the conference report and existing law--no more, and no 
less.
  For example, the text explicitly provides that both the heads of 
executive departments containing agencies or organizations within the 
intelligence community and the heads of those discrete agencies may 
each provide annual budget proposals to the DNI, based on the DNI's 
guidance, for the DNI to use in determining and presenting an 
intelligence budget to the President. Beyond this direction, the 
legislation does not specify how the budget proposals are to be 
developed or provided, and it is properly for the executive branch to 
determine how to execute the statute consistent with its text.
  Similarly, the legislation provides, in amended section 102A(e)(2)(A) 
of the National Security Act, that personnel transfers are to be made 
in accordance with procedures developed by the DNI and the heads of 
affected departments and agencies. It does not specify what role is to 
be played in the transfers by department and agency heads pursuant to 
such procedures. Presumably, that matter will be determined by the 
executive branch within the agreement on procedures developed under the 
legislative text.
  Consistent with basic constitutional principles, the legislation 
provides that the DNI's authority is ``[s]ubject to the authority, 
direction, and control of the President.'' Accordingly, the text does 
not specify who is to perform the President's daily intelligence 
briefing or under what specific operational circumstances the President 
will interact with the Director of the CIA, which should be matters for 
the President to decide himself.
  The legislation also contains a detailed provision dealing with the 
apportionment of funds. That provision textually speaks only to the 
apportionment of funds, not to apportionment plans or any other related 
matter. Similarly, the conference report does not specifically 
authorize the creation of an entity within the Office of the DNI to 
perform common services or of a Chief Financial Officer for the DNI. 
Nor does it provide that an open source intelligence center, if 
created, should be a new element of the intelligence community. Nor is 
the conforming amendment to section 105(a) of the National Security Act 
contained in section 1072(a)(2) of the legislation intended to 
substantively amend the authority of the Secretary of Defense. That 
provision merely clarifies that section 105(a) of the National Security 
Act should be construed in conjunction with the specified statutory 
authorities of the DNI. Had the conference intended to address any of 
these matters in this legislation, appropriately specific provisions 
would have been included to do so.


   national counterterrorism center and national intelligence centers

  The authorities of the National Counterterrorism Center were issues 
of great and delicate debate during the conference. This is 
particularly true with respect to the balance between the authority of 
the NCTC to conduct ``strategic operational planning'' and the 
authority of individual departments and agencies to plan and direct the 
conduct of the resulting operations. There was full agreement that the 
NCTC properly should assign ``roles and responsibilities'' to agencies 
participating in Counterterrorism operations. However, the text of the 
legislation specifies that the assignment of ``roles and 
responsibilities'' does not extend to directing the execution of any 
resulting operations. The legislation does not, for example, authorize 
the NCTC to determine which personnel or specific capabilities should 
be utilized by agencies in mission execution.
  Similarly, careful discussions took place in the conference with 
respect to the detail of personnel to the NCTC, with the outcome 
memorialized in the legislative text. There is no specific direction to 
concentrate personnel holding scarce and desirable skills in the NCTC, 
nor is such concentration prohibited. In exercising authorities to 
transfer or detail personnel, it will be important for the DNI to weigh 
the needs of an effective NCTC with the needs of other agencies and the 
intelligence community as a whole.
  The conference also reached compromise on the scope and authorities 
of any future National Intelligence Centers that might be created by 
the Director of National Intelligence. The conference report authorizes 
the DNI to establish, if appropriate and necessary to complete the 
mission, national intelligence centers that are administratively 
distinct from the other agencies of the intelligence community. 
However, it does not require that all National Intelligence Centers be 
created as separate and administratively distinct entities. As with the 
NCTC, it will be important for the DNI

[[Page E2210]]

to weigh the needs of any additional National Intelligence Centers 
against the needs of the agencies within the intelligence community, 
with due consideration for the expert personnel that make the 
intelligence community effective.


                information flow and information sharing

  The legislation specifies that the information sharing system created 
in section 1016 is to facilitate the sharing of terrorism information, 
as specifically defined in section 1016(a)(4). The conference 
specifically chose to remove references to any specific system, 
network, or proposal as a model. As provided in section 1016(b)(1)(a), 
the system is to be established consistent with ``applicable legal 
standards'' relating to privacy and civil liberties.
  Further, the conference did not establish specific qualifications for 
the program manager to be designated under the bill. While experience 
with managing an ``enterprise architecture'' is desirable, that 
expertise is a narrow category of necessary qualifications and it is 
equally important that the manager have program management and systems 
development expertise. I should also note that the legislation refers 
to the ``Information Sharing Council.'' This is intended to refer to 
the ``Information Systems Council'' established by Executive order.


              privacy and civil liberties oversight board

  The Privacy and Civil Liberties Board also was a carefully negotiated 
provision in conference. Once again, only the text of the legislation 
reflects our final agreement. The conference dropped a proposed 
provision that would have limited the board to providing advice only 
when requested by the head of an agency, choosing to remain silent on 
the specifics. Such silence should not be construed, however, as a 
requirement for executive branch officials to routinely or 
affirmatively consult with the Board. Such a requirement does not 
appear in the legislation, and again this is a matter for the Executive 
to carry out consistent with the legislative text.
  In addition, there was extensive discussion of the exemption that is 
included in section 1061(d)(4) of the bill with respect to the 
authority of the DNI to withhold information from the Board for 
national security reasons. The legislation speaks for itself, but I 
would like to emphasize that the possession of a security clearance 
does not automatically provide a ``need to know'' classified 
information, especially where it is uniquely sensitive. This provision 
should not be used to routinely withhold information, but is instead 
intended to come into play where preventing potential harm to national 
security from disclosure precludes the ``need to know'' served by the 
interests of the Board.
  It is also important to note that the conference did not have an 
opportunity to consider the relationship of section 1062, a sense of 
Congress provision dealing with designation of agency privacy officers, 
to similar provisions contained in the Omnibus Appropriations Bill 
dealing with Chief Privacy Officers.


                 public interest declassification board

  Section 1102 of the conference report, dealing with the Public 
Interest Declassification Board, provides that the board may conduct 
review and make recommendations to the President with respect to 
requests from congressional committees of jurisdiction to declassify 
certain records or reconsider a declination to declassify certain 
records. It is important to emphasize that the text of section 1102(b) 
and, by reference, section 1102(e) refer only to requests from 
committees of jurisdiction and not individual Members of Congress, and 
that no authority for individual members to make such requests should 
be inferred.


      drivers license and personal identification card provisions

  Finally, I note two provisions that were the subject of negotiation 
in section 7212 of the conference report, dealing with standards for 
drivers' licenses. First, a detailed specification of which 
``interested parties'' should participate in the negotiated rulemaking 
provided for in this section was specifically omitted from the text. It 
is therefore erroneous to infer or suggest that a requirement for 
mandatory participation by any particular ``interested party'' or group 
in the rulemaking is intended in the bill. Second, a provision was 
removed from section 7212(b)(3)(E) that would have required the 
regulations developed in the rulemaking to include requirements to 
protect unspecified ``civil and due process'' rights of individuals 
applying for and holding drivers licenses and personal identification 
cards. This legislation is not intended to create or infer the creation 
of any civil or due process right relating to drivers' licenses or 
identification cards, nor is any such provision included in the text of 
the legislation.
  My statement is not exhaustive and is without prejudice to 
interpretation of other items in the conference report, which I again 
emphasize in closing should be made solely by reference to the text of 
the conference report and the Joint Explanatory Statement.

                          ____________________