[Congressional Record Volume 155, Number 178 (Thursday, December 3, 2009)]
[Senate]
[Pages S12330-S12332]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. AKAKA (for himself and Mr. Voinovich):
  S. 2834. A bill to amend the Intelligence Reform and Terrorism 
Prevention Act of 2004 to establish a Security Clearance and 
Suitability Performance Accountability Council and for other purposes; 
to the Select Committee on Intelligence.
  Mr. AKAKA. Mr. President, today I am introducing, along with my 
colleague Senator Voinovich, the Security Clearance Modernization and 
Reporting Act of 2009.
  Since 2005, our Homeland Security and Governmental Affairs 
Subcommittee on Oversight of Government Management, the Federal 
Workforce, and the District of Columbia has held a series of six 
oversight hearings on the serious shortfalls of the Federal 
Government's ability to effectively and efficiently issue security 
clearances to federal employees and contractors.
  This issue was placed on the Government Accountability Office's, GAO, 
High-Risk List in 2005. Since then, through the strong oversight of our 
Subcommittee and hard work of those in the government dedicated to 
reforming and modernizing the security clearance process, the 
tremendous backlog of security clearance investigations has all but 
vanished, and clearance determinations are made much more quickly. 
While progress has been made, we must use this opportunity to continue 
to push for fundamental changes to the clearance process to ensure that 
we do not experience the same problems in the future.
  In 2004, the Intelligence Reform and Terrorism Prevention Act, IRTPA, 
P.L. 108-458, required 90 percent of clearances to be completed within 
an average of 60 days by December 2009. At the time, it took almost a 
year to complete a Top Secret clearance request. IRTPA also required 
that agencies recognize clearance determinations made by other agencies 
to ensure reciprocity of clearances. An Executive Order was issued to 
implement these requirements, designating the Office of Management and 
Budget, OMB, as the agency responsible for setting security clearance 
policy and calling on the Office of Personnel Management, OPM, to 
conduct clearance investigations. Unfortunately, clearance timeliness 
continued to be unacceptably slow.
  After continued pressure from our Subcommittee and other 
stakeholders, in 2008, OMB brought together the Department of Defense, 
the Office of the Director of National Intelligence, ODNI, and OPM to 
create a plan to overhaul and streamline the clearance process 
government-wide. At the recommendation of this reform team, a new 
executive order was issued creating a governance structure for 
overseeing and modernizing the federal government's security clearance 
and suitability processes. The members of the reform team were 
designated as the Suitability and Security Clearance Performance 
Accountability Council, PAC.
  Since the creation of the PAC and the implementation of some reforms, 
including enhanced application processes, new clearance standards, and 
plans for electronic adjudication and reevaluation, timeliness of 
clearances has greatly improved. Already, agencies are generally 
meeting goals laid out by the IRTPA. However, this has required 
tremendous effort and a surge in investigation capacity over several 
years to address backlogs.
  The bill that we are introducing today would address the lingering 
concerns over the clearance process and help sustain the momentum for 
reforming and modernizing the security clearance and suitability 
determination processes.
  First, to ensure accountability in security clearance reform and 
modernization, it is necessary to produce more detailed timeliness 
reporting. Today, OMB only reports the average timeliness of the 90 
fastest percent of clearances. At our Subcommittee hearings, the GAO 
has repeatedly called for expanded reporting. It is important that we 
look at the timeliness of the whole process. Our legislation would 
require more complete reporting on timeliness for all clearances, not 
just the 90 percent that we see today. For the first time, it would 
require OMB to break down the numbers based on types of clearances and 
employee groups, and to report on which agencies are complying with 
reciprocal recognition of clearances. While the current IRTPA reporting 
requirements end in 2011, our legislation would extend these 
requirements to ensure that we receive reports until GAO has concluded 
this is no longer a high-risk issue.
  To ensure consistent leadership, our bill would codify the 
Performance Accountability Council, which has been the catalyst for 
much of the reform we have seen to date. It is critical that we codify 
the PAC as its future was in doubt during the presidential transition 
as the new administration reviewed previous executive orders.
  GAO has also urged the creation of new metrics that would measure not 
only the timeliness of clearance determinations, but also the quality 
and completeness of investigations. These metrics should be defined 
through the creation of a comprehensive strategic plan for clearance 
modernization. In response to GAO's recommendations, the legislation 
would require the PAC to create a comprehensive strategic plan. This 
plan would outline reform goals, establish performance measures, create 
a more robust communications strategy, define clear roles and 
responsibilities for stakeholders, and examine funding needs in order 
to keep reforms on track.
  Finally, this bill would require that the PAC undertake a more 
comprehensive information technology assessment than it has to date. 
Today, dozens of intertwined systems are used in the clearance process. 
These systems are a patchwork of outdated technology owned by different 
agencies. Rather than conducting an inventory of the current technology 
in use, as the PAC has already done, our bill would require a true 
needs assessment to define the most effective information technology 
approach.
  Our Subcommittee, under both my leadership and that of Senator 
Voinovich, has worked in a bipartisan manner on this issue seamlessly 
for several years and our oversight has yielded positive results. It is 
vital, from both a human capital perspective and a national security 
perspective, that security clearances and suitability determinations be 
of the highest quality and made in a timely manner. We must work to 
make sure this issue is removed from the High-Risk List as soon as 
possible.
  Mr. President, I ask unanimous consent that the text of the bill be 
printed in the Record.

[[Page S12331]]

  There being no objection, the text of the bill was ordered to be 
printed in the Record, as follows:

                                S. 2834

       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 ``Security Clearance 
     Modernization and Reporting Act of 2009''.

     SEC. 2. DEFINITIONS.

       Subsection (a) of section 3001 of the Intelligence Reform 
     and Terrorism Prevention Act of 2004 (50 U.S.C. 435b) is 
     amended--
       (1) in the matter preceding paragraph (1) by striking ``In 
     this section:'' and inserting ``Except as otherwise 
     specifically provided, in this title:'';
       (2) by redesignating paragraph (1) as paragraph (2);
       (3) by redesignating paragraph (2) as paragraph (5);
       (4) by redesignating paragraph (3) as paragraph (4);
       (5) by redesignating paragraph (4) as paragraph (12);
       (6) by redesignating paragraph (5) as paragraph (10);
       (7) by redesignating paragraph (6) as paragraph (15);
       (8) by redesignating paragraph (7) as paragraph (14);
       (9) by redesignating paragraph (8) as paragraph (3);
       (10) by inserting before paragraph (2), as redesignated by 
     paragraph (2), the following:
       ``(1) Adjudication.--The term `adjudication' means the 
     evaluation of pertinent data in a background investigation 
     and any other available information that is relevant and 
     reliable to determine whether an individual is--
       ``(A) suitable for Federal Government employment;
       ``(B) eligible for logical and physical access to federally 
     controlled information systems;
       ``(C) eligible for physical access to federally controlled 
     facilities;
       ``(D) eligible for access to classified information;
       ``(E) eligible to hold a sensitive position; or
       ``(F) fit to perform work for or on behalf of the Federal 
     Government as a contractor employee.'';
       (11) by inserting after paragraph (5), as redesignated by 
     paragraph (3), the following:
       ``(6) Classified information.--The term `classified 
     information' means information that has been determined, 
     pursuant to Executive Order 12958 (60 Fed. Reg. 19825) or a 
     successor or predecessor order, or the Atomic Energy Act of 
     1954 (42 U.S.C. 2011 et seq.), to require protection against 
     unauthorized disclosure.
       ``(7) Continuous evaluation.--The term `continuous 
     evaluation' means a review of the background of an individual 
     who has been determined to be eligible for access to 
     classified information (including additional or new checks of 
     commercial databases, Government databases, and other 
     information lawfully available to security officials) at any 
     time during the period of eligibility to determine whether 
     that individual continues to meet the requirements for 
     eligibility for access to classified information.
       ``(8) Contractor.--The term `contractor' means an expert or 
     consultant, who is not subject to section 3109 of title 5, 
     United States Code, to an agency, an industrial or commercial 
     contractor, licensee, certificate holder, or grantee of any 
     agency, including all subcontractors, a personal services 
     contractor, or any other category of person who performs work 
     for or on behalf of an agency and who is not an employee of 
     an agency.
       ``(9) Contractor employee fitness.--The term `contractor 
     employee fitness' means fitness based on character and 
     conduct for work for or on behalf of an agency as a 
     contractor employee.'';
       (12) by inserting after paragraph (10), as redesignated by 
     paragraph (6), the following:
       ``(11) Federally controlled facilities; federally 
     controlled information systems.--The term `federally 
     controlled facilities' and `federally controlled information 
     systems' have the meanings prescribed in guidance pursuant to 
     the Federal Information Security Management Act of 2002 
     (title III of Public Law 107-347; 116 Stat. 2946), the 
     amendments made by that Act, and Homeland Security 
     Presidential Directive 12, or any successor Directive.'';
       (13) by inserting after paragraph (12), as redesignated by 
     paragraph (5), the following:
       ``(13) Logical access.--The term `logical access' means, 
     with respect to federally controlled information systems, 
     access other than occasional or intermittent access to 
     federally controlled information systems.'';
       (14) by inserting after paragraph (15), as redesignated by 
     paragraph (7), the following:
       ``(16) Physical access.--The term `physical access' means, 
     with respect to federally controlled facilities, access other 
     than occasional or intermittent access to federally 
     controlled facilities.
       ``(17) Sensitive position.--The term `sensitive position' 
     means any position designated as a sensitive position under 
     Executive Order 10450 or any successor Executive Order.
       ``(18) Suitability.--The term `suitability' has the meaning 
     of that term in part 731, of title 5, Code of Federal 
     Regulations or any successor similar regulation.''.

     SEC. 3. SECURITY CLEARANCE AND SUITABILITY DETERMINATION 
                   REPORTING.

       (a) Extension of Reporting Requirements.--Paragraph (1) of 
     section 3001(h) of the Intelligence Reform and Terrorism 
     Prevention Act of 2004 (50 U.S.C. 435b(h)) is amended by 
     striking ``through 2011,'' and inserting ``until the earlier 
     of the date that is 2 years after the date that the 
     Comptroller General of the United States has removed all 
     items related to security clearances from the list maintained 
     by the Comptroller General known as the High-Risk List or 
     2017,''.
       (b) Reports on Security Clearance Review Processes.--
     Paragraph (2) of such section 3001(h) is amended--
       (1) by redesignating subparagraphs (B) and (C) as 
     subparagraphs (E) and (F), respectively; and
       (2) by striking subparagraph (A) and inserting the 
     following:
       ``(A) a description of the full range of time required to 
     complete initial clearance applications, including time 
     required by each authorized investigative agency and each 
     authorized adjudicative agency--
       ``(i) to respond to requests for security clearances for 
     individuals, including the periods required to initiate 
     security clearance investigations, conduct security clearance 
     investigations, deliver completed investigations to the 
     requesting agency, adjudicate such requests, make final 
     determinations on such requests, and notify individuals and 
     individuals' employers of such determinations, from date of 
     submission of the requests to the date of the ultimate 
     disposition of the requests and notifications, disaggregated 
     by the type of security clearance, including Secret, Top 
     Secret, and Top Secret with Special Program Access, including 
     sensitive compartmented information clearances--
       ``(I) for civilian employees of the United States;
       ``(II) for members of the Armed Forces of the United 
     States; and
       ``(III) for contractor employees; and
       ``(ii) to conduct investigations for suitability 
     determinations for individuals from successful submission of 
     applications to ultimate disposition of applications and 
     notifications to the individuals--
       ``(I) for civilian employees of the United States;
       ``(II) for members of the Armed Forces of the United 
     States; and
       ``(III) for contractor employees; and
       ``(B) a listing of the agencies and departments of the 
     United States that have established and utilize policies to 
     accept all security clearance background investigations and 
     determinations completed by an authorized investigative 
     agency or authorized adjudicative agency;
       ``(C) a description of the progress in implementing the 
     strategic plan referred to in section 3004;
       ``(D) a description of the progress made in implementing 
     the information technology strategy referred to in section 
     3005;''.

     SEC. 4. SECURITY CLEARANCE AND SUITABILITY PERFORMANCE 
                   ACCOUNTABILITY COUNCIL.

       Title III of the Intelligence Reform and Terrorism 
     Prevention Act of 2004 (50 U.S.C. 435b et seq.) is amended by 
     adding at the end the following new section:

     ``SEC. 3003. SECURITY CLEARANCE AND SUITABILITY PERFORMANCE 
                   ACCOUNTABILITY COUNCIL.

       ``(a) Establishment.--There is established a Security 
     Clearance and Suitability Performance Accountability Council 
     (hereinafter referred to as the `Council').
       ``(b) Chair.--
       ``(1) Designation.--The Deputy Director for Management, 
     Office of Management and Budget, shall serve as Chair of the 
     Council.
       ``(2) Authority.--The Chair of the Council shall have 
     authority, direction, and control over the functions of the 
     Council.
       ``(c) Vice Chair.--The Chair of the Council shall select a 
     Vice Chair to act in the Chair's absence.
       ``(d) Membership.--
       ``(1) In general.--The members of the Council shall 
     include--
       ``(A) the Chair of the Council; and
       ``(B) an appropriate senior officer from each of the 
     following:
       ``(i) The Office of the Director of National Intelligence.
       ``(ii) The Department of Defense.
       ``(iii) The Office of Personnel Management.
       ``(2) Other members.--The Chair of the Council may 
     designate appropriate employees of other agencies or 
     departments of the United States as members of the Council.
       ``(e) Duties.--The Council shall--
       ``(1) ensure alignment of suitability, security, and, as 
     appropriate, contractor employee fitness, investigative, and 
     adjudicative processes;
       ``(2) ensure alignment of investigative requirements for 
     suitability determinations and security clearances to reduce 
     duplication in investigations;
       ``(3) oversee the establishment of requirements for 
     enterprise information technology;
       ``(4) oversee the development of techniques and tools, 
     including information technology, for enhancing background 
     investigations and eligibility determinations and ensure that 
     such techniques and tools are utilized;
       ``(5) ensure that each agency and department of the United 
     States establishes and utilizes policies for ensuring 
     reciprocal recognition of clearances that allow access to 
     classified information granted by all other agencies and 
     departments;
       ``(6) ensure sharing of best practices among agencies and 
     departments of the United States;

[[Page S12332]]

       ``(7) hold each agency and department of the United States 
     accountable for the implementation of suitability, security, 
     and, as appropriate, contractor employee fitness processes 
     and procedures; and
       ``(8) hold each agency and department of the United States 
     accountable for recognizing clearances that allow access to 
     classified information granted by all other agencies and 
     departments of the United States.
       ``(f) Assignment of Duties.--The Chair may assign, in whole 
     or in part, to the head of any agency or department of the 
     United States, solely or jointly, any duty of the Council 
     relating to--
       ``(1) alignment and improvement of investigations and 
     determinations of suitability;
       ``(2) determinations of contractor employee fitness; and
       ``(3) determinations of eligibility--
       ``(A) for logical access to federally controlled 
     information systems;
       ``(B) for physical access to federally controlled 
     facilities;
       ``(C) for access to classified information; or
       ``(D) to hold a sensitive position.''.

     SEC. 5. STRATEGIC PLAN FOR REFORM.

       Title III of the Intelligence Reform and Terrorism 
     Prevention Act of 2004 (50 U.S.C. 435b et seq.), as amended 
     by section 4, is further amended by adding at the end the 
     following new section:

     ``SEC. 3004. SECURITY CLEARANCE AND SUITABILITY REFORM 
                   STRATEGIC PLAN.

       ``(a) Requirement for Plan.--Not later than 90 days after 
     the date of the enactment of the Security Clearance 
     Modernization and Reporting Act of 2009, the Security 
     Clearance and Suitability Performance Accountability Council 
     established in section 3003 shall develop a strategic plan 
     that identifies the causes of problems with the issuance of 
     security clearances and a description of actions to be taken 
     to correct such problems.
       ``(b) Contents.--The plan required by subsection (a) shall 
     include a description of--
       ``(1) the clear mission and strategic goals of the plan;
       ``(2) performance measures to be used to determine the 
     effectiveness of security clearance procedures, including 
     measures for the quality of security clearance investigations 
     and adjudications;
       ``(3) a formal communications strategy related to the 
     issuance of security clearances;
       ``(4) the roles and responsibilities for agencies 
     participating in security clearance reform efforts; and
       ``(5) the long-term funding requirements for security 
     clearance reform efforts.
       ``(c) Submission to Congress.--The plan required by 
     subsection (a) shall be submitted to the appropriate 
     committees of Congress.
       ``(d) Government Accountability Office Review.--The plan 
     required by subsection (a) shall be reviewed by the 
     Comptroller General of the United States following its 
     submission to the appropriate committees of Congress under 
     subsection (c).''.

     SEC. 6. INFORMATION TECHNOLOGY STRATEGY.

       Title III of the Intelligence Reform and Terrorism 
     Prevention Act of 2004 (50 U.S.C. 435b et seq.), as amended 
     by sections 4 and 5, is further amended by adding at the end 
     the following new section:

     ``SEC. 3005. INFORMATION TECHNOLOGY STRATEGY.

       ``(a) Requirement for Strategy.--Not later than 120 days 
     after the date of the enactment of the Security Clearance 
     Modernization and Reporting Act of 2009, the Director of the 
     Office of Management and Budget shall submit to the 
     appropriate committees of Congress an information technology 
     strategy that describes the plans to expedite investigative 
     and adjudicative processes, verify standard information 
     submitted as part of an application for a security clearance, 
     and provide security clearance and suitability determination 
     reform consistent with the strategy required by section 
     3004(a), by carrying out the Enterprise Information 
     Technology Strategy referred to in the Report of the Joint 
     Security and Suitability Reform Team, dated December 30, 
     2008.
       ``(b) Content.--The strategy required by subsection (a) 
     shall include--
       ``(1) a description of information technology required to 
     request a security clearance or suitability investigation;
       ``(2) a description of information technology required to 
     apply for a security clearance or suitability investigation;
       ``(3) a description of information technology systems 
     needed to support such investigations;
       ``(4) a description of information technology required to 
     transmit common machine readable investigation files to 
     agencies for adjudication;
       ``(5) a description of information technology required to 
     support agency adjudications of security clearance and 
     suitability determinations;
       ``(6) a description of information technology required to 
     support continuous evaluations;
       ``(7) a description of information technology required to 
     implement a single repository containing all security 
     clearance and suitability determinations of each agency and 
     department of the United States that is accessible by each 
     such agency and department in support of ensuring reciprocal 
     recognition of access to classified information among such 
     agencies and departments;
       ``(8) a description of the efforts of the Security 
     Clearance and Suitability Performance Council established in 
     section 3003, and each of the Department of Defense, the 
     Office of Personnel Management, and the Office of the 
     Director of National Intelligence to carry out the strategy 
     submitted under subsection (a);
       ``(9) the plans of the agencies and departments of the 
     United States to develop, implement, fund, and provide 
     personnel to carry out the strategy submitted under 
     subsection (a);
       ``(10) cost estimates to carry out the strategy submitted 
     under subsection (a); and
       ``(11) a description of the schedule for carrying out the 
     strategy submitted under subsection (a).''.

     SEC. 7. TECHNICAL AND CLERICAL AMENDMENTS.

       (1) Technical correction.--The table of contents in section 
     1(b) of the Intelligence Reform and Terrorism Prevention Act 
     of 2004 (Public Law 108-458; 118 Stat. 3638) is amended by 
     adding after the item relating to section 3001 the following:

``Sec. 3002. Security clearances; limitations.''.

       (2) Clerical amendment.--The table of contents in section 
     1(b) of the Intelligence Reform and Terrorism Prevention Act 
     of 2004, as amended by paragraph (1), is further amended by 
     adding after the item relating to section 3002, as added by 
     such paragraph, the following:

``Sec. 3003. Security Clearance and Suitability Performance 
              Accountability Council.
``Sec. 3004. Security clearance and suitability reform strategic plan.
``Sec. 3005. Information technology strategy.''.

  Mr. VOINOVICH. Mr. President, I rise today to join my good friend and 
Chairman on the Oversight of Government Management Subcommittee, 
Senator Akaka, to ensure that security clearance reform efforts begun 
in recent years continue by cosponsoring the Security Clearance 
Modernization and Reporting Act of 2009.
  Since the 1990s, the Government's Accountability Office, GAO, has 
documented problems with the Department of Defense's, DoD, personnel 
security clearance program, and in 2005 added the program to its high-
risk list. DoD's personnel security clearance program has remained on 
the 2007 and 2009 high risk lists.
  In an effort to address this matter and improve the security 
clearance process, Congress set benchmarks for the time taken to issue 
clearances in the Intelligence Reform and Terrorism Prevention Act of 
2004, IRTPA. IRTPA also required the President to select a single 
agency or office to oversee the security clearance process across the 
federal government and required uniform policies regarding the security 
clearance process, reciprocal recognition of security clearances among 
agencies, an evaluation of technology to expedite security clearance 
processes, and a plan to reduce the length of the security clearance 
process. While progress has been made to decrease the amount of time it 
takes to obtain a security clearance, more improvement is needed to 
fully reform the security clearance process, but reform efforts have 
been delayed this year by an interagency review of the security 
clearance reform initiatives undertaken over the past several years.
  To ensure that the good work begun with passage of IRTPA in 2004, I 
am pleased to cosponsor Senator Akaka's legislation that extends 
IRTPA's reporting requirements relating to security clearance reform 
efforts beyond their current 2011 expiration date and requires more 
details in those reports about the amount of time required by 
individual agencies to conduct both security clearance investigations 
and adjudications. To ensure that efforts begun over the past several 
years continue, the bill codifies portions of Executive Order 13467, 
which deals with reforming processes related to eligibility for access 
to classified information. The bill also calls for the development of 
the strategic plan GAO has been asking for since the DoD personnel 
security clearance program was put on its high risk list in 2005 and 
requires a more detailed information technology strategy relating to 
security clearance reform efforts.
  I am proud to cosponsor this bill and thank the Senator from Hawaii 
for his work on this legislation to address such an important issue.
                                 ______