[Congressional Record Volume 152, Number 108 (Wednesday, September 6, 2006)]
[Senate]
[Pages S9068-S9069]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




           FAILURE TO PASS AN INTELLIGENCE AUTHORIZATION BILL

 Mrs. FEINSTEIN. Mr. President, I join Vice Chairman 
Rockefeller in calling for the Senate to take up and pass the 
Intelligence Authorization Act for Fiscal Year 2007. As has been said 
already, this legislation is the primary way in which the Congress 
directs the Nation's 16 intelligence agencies.
  In writing this legislation, the Committee worked closely with the 
Director of National Intelligence, or DNI, to identify new authorities 
needed to protect our national security. The bill authorizes a pilot 
program to allow intelligence agencies to better share information that 
could help uncover and thwart a terrorist; empowers the DNI to build 
information-sharing systems across the Federal Government; and creates 
a strong inspector general for the intelligence community.
  The bill also requires the intelligence community to explain how it 
is complying with the Detainee Treatment Act and provide Congress with 
information on any ``alleged clandestine detention facilities'' that it 
may be operating and continues the process of intelligence reform begun 
in 2004.
  It is not surprising that the creation of the DNI and major 
organizational changes across the Government's national security 
apparatus left some things undone. This Intelligence authorization bill 
makes a number of small but useful changes to allow the DNI and the 
Nation's 16 intelligence agencies to operate on a day-to-day basis more 
effectively.
  These are a few of the important provisions in this legislation. But 
here I would like to focus on language in the bill that was adopted on 
a bipartisan basis at committee. The provisions, sections 304 and 307 
of the bill, ensure that the congressional Intelligence Committees are 
fully informed of all intelligence activities.
  The National Security Act of 1947 requires the President to ``ensure 
that the congressional intelligence committees are kept fully and 
currently informed of the intelligence activities of the United States. 
. .''.
  Even more than other committees, the Intelligence Committee relies on 
the executive branch to provide it with information. Without full and 
timely notification of intelligence programs, problems, and plans, the 
committee cannot judge whether agencies have adhered to the law, nor 
can we judge whether changes in authorities or resources are needed to 
better protect national security.
  It was, in fact, Congress's lack of regular oversight that led to the 
creation

[[Page S9069]]

of the Senate Intelligence Committee in 1976. Following the Church 
Committee's report on Executive abuses, the Senate established the 
Committee to ``provide vigilant legislative oversight over the 
intelligence activities of the United States to assure that such 
activities are in conformity with the Constitution and laws of the 
United States.''
  Thirty years after the Senate Intelligence Committee was created, 
however, it is not living up to its charge. Members of the committee 
are not provided with sufficient information on intelligence programs 
and activities to legislate or oversee to intelligence community. 
Provisions in the stalled legislation--the Intelligence authorization 
bill--would fix this problem.
  A good example of how the system fails to work is the so-called 
Terrorist Surveillance Program, which was publicly revealed last 
December but which had not previously been briefed to the committees.

  According to the White House, this National Security Agency program 
was too sensitive to be briefed to the 15 Senators on the committee--
the 15 Senators hand-selected by the majority and minority leaders for 
this assignment.
  Instead, the President and Vice President decided to inform only 8 of 
the 535 Members of Congress: the party leadership in both houses and 
the leadership of the two intelligence committees.
  The National Security Act does provide for limited briefings to these 
eight Members of Congress but only for especially sensitive covert 
actions. The NSA program is not a covert action.
  The administration also points to statute saying that it must take 
``due regard for the protection from unauthorized disclosure of 
classified information relating to sensitive intelligence sources and 
methods or other exceptionally sensitive matters. . .''
  The 1980 Senate report accompanying this ``due regard'' provision 
explained this provision more directly--and makes clear that it does 
not allow the administration to restrict information from the committee 
indefinitely as was done with the Terrorist Surveillance Program.
  The report recognized ``that in extremely rare circumstances a need 
to preserve essential secrecy may result in a decision not to impart 
certain sensitive aspects of operations or collection programs to the 
oversight committees in order to protect extremely sensitive 
intelligence sources and methods.''
  The ``due regard'' language that the administration cites was 
intended, at most, to limit briefings on the most sensitive aspects of 
operations, in extremely rare circumstances. It was also expected that 
withholding this sensitive information would be a temporary measure. 
This language was not intended to conceal the existence of entire 
programs from all committee members.

  So in effect, the White House has broadly interpreted the National 
Security Act to void meeting its responsibility to inform Congress.
  This Intelligence authorization bill's changes to the National 
Security Act close the loopholes but, in fact, are far more generous to 
the executive branch than many would like. The bill acknowledges that 
there are times when not all Members have to be ``fully and currently'' 
briefed on all intelligence matters. However, in those cases, it 
requires that all committee members receive a summary of the 
intelligence collection or covert action in question.
  This arrangement would allow the intelligence agencies to protect the 
most sensitive details of sources and methods, but crucially, it would 
allow the full committee to assess the legality, costs and benefits, 
and advisability of an intelligence operation.
  The authorization bill also changes a definition in the National 
Security Act to make clear that the requirement to keep the committees 
``fully and currently informed'' means that all Members will be kept 
informed. Congress has allowed the intelligence community to brief only 
the chairman and vice chairman on too many programs for too long.
  I do not need to remind my colleagues that full committees, not a 
single Democrat and Republican, vote to authorize programs and funding. 
All Members must be informed if they are to perform their 
Constitutional duties.
  The pending authorization bill would make one additional change to 
what it means for an intelligence activity to be authorized by 
Congress.
  Stemming from the wiretapping abuses in the 1970s and because of the 
special challenges to conducting oversight of classified programs, the 
National Security Act prohibits the use of appropriated funds for any 
intelligence activities unless they are authorized by Congress. The 
pending bill would specify that an activity can only be ``authorized'' 
if the members of the authorizing committees have been fully briefed on 
it--or given a summary in the especially sensitive cases I described 
before.

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