[Congressional Record Volume 156, Number 131 (Monday, September 27, 2010)]
[Senate]
[Pages S7498-S7500]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
INTELLIGENCE AUTHORIZATION ACT
Mrs. FEINSTEIN. Mr. President, the Congress is now close to passing
and enacting an intelligence authorization bill for the first time
since December 2004. Pending at the Senate desk is House bill H.R.
2701, the Intelligence Authorization Act for Fiscal Year 2010, which
the House passed on February 26, 2010.
On behalf of Senator Bond and myself, I have filed an amendment to
this House bill, and have asked the majority leader to request
unanimous consent that the amendment, in the nature of a substitute, be
approved and that the bill be sent back to the House for its final
passage.
For the benefit of my colleagues, I would like to describe the
amendment and discuss why the passage of this legislation is of great
importance to the Intelligence community and for oversight of
intelligence.
In all but three respects, this amendment is identical to Senate bill
S. 3611, which the Senate passed in August by unanimous consent. That
bill had been negotiated with the House Permanent Select Committee on
Intelligence and had the support of the administration. However, the
House did not act on that bill. Instead, last week, the House sent its
legislation to the Senate for consideration.
Per agreement with the House and the executive branch, I am therefore
introducing this amendment, which replaces the text of the House bill
with the previous Senate bill, with the three changes as follows:
The first change is necessary given that fiscal year 2010, the year
for which this legislation was first written, ends later this week. The
legislation I have offered today therefore does not include a
classified annex that describes authorized funding levels for the
intelligence community. The amendment text omits references to the
classified annex, as well as other provisions that were specific to
fiscal year 2010, that were present in S. 3611. This is reflected
through the deletion of six provisions in S. 3611: sections 101, 102,
103, 104, 201, and 348. The amendment includes a new section 101, which
is being included at the request of the Office of the Director of
National Intelligence. This section makes clear that all funds
appropriated, reprogrammed, or transferred for intelligence or
intelligence-related activities in fiscal year 2010 may be obligated or
expended. This provision is necessary to meet the terms of section
504(a) of the National Security Act of 1947, 50 U.S.C. Sec. 414.
This legislation also amends section 331 from the version of the bill
previously passed by the Senate concerning notification procedures. The
amendment adds text to ensure that in the case of a limited
notification of a covert action to the House and Senate leaders and
chairmen and ranking members of the two intelligence committees--the
so-called ``Gang of
[[Page S7499]]
Eight''--in place of the full membership of those committees, the basis
of the limited notification will be reviewed in the executive branch
within 180 days and reasons for continuation of the limited
notification will be submitted to the Gang of Eight.
The amendment also adds text to require that in the case of a limited
notification, the President shall provide to all members of the
intelligence committees a ``general description'' of the covert action.
This implements the idea first described by the Senate Intelligence
Committee in 1980 that the limited notification procedure is to protect
in extraordinary cases certain sensitive aspects of an intelligence
activity; the purpose of the authority is not to shield entire
intelligence programs from the oversight of the full intelligence
committees.
Recent legislation from the Select Committee on Intelligence has
included similar provisions to the requirement to provide to all
committee members a ``general description.'' The committee's bill, S.
1494, which the Senate passed unanimously in September 2009, included a
similar provision, but the version of the bill passed in August 2010,
S. 3611, did not.
Of note, the legislative language in this amendment makes clear that
the general description of the covert action is to be provided by the
President to all members of the committees, consistent with the reasons
for not yet fully informing all members of the intelligence committees.
The administration agrees that this gives the President sufficient
flexibility in extraordinary circumstances to protect sensitive
national security information.
Finally, the amendment I am offering includes a new section, section
348, on access by the Comptroller General to the information of
elements of the intelligence community. Both S. 1494 and H.R. 2701
included sections on audits of intelligence community elements by the
Government Accountability Office, GAO. No GAO provision was included in
S. 3611 because, at the time that S. 3611 was reported and then acted
on by the Senate, no agreement had been reached on a provision that
would be acceptable to both the administration and the Congress.
Section 348 represents a compromise that the Congress and the
administration can support. It requires the Director of National
Intelligence, DNI, to issue a directive on GAO access. While the
directive shall be issued following consultation with the Comptroller
General, the amendment is clear that this is to be the DNI's directive.
It is the DNI who has the responsibility to craft a directive that is
consistent with existing law, both as regards the authority of the
Comptroller General under title 31 of the United States Code and the
provisions of the National Security Act. The directive shall be
provided to the Congress before it goes into effect and the appropriate
committees of the Congress can then take whatever legislative or
oversight actions they deem appropriate.
The Department of Defense has issued a directive governing GAO access
to Defense special access programs. This directive is regarded as
having resolved successfully the issues that the Department and GAO had
previously encountered. As the DNI carries out the duties of this
section, it will be important for him to be mindful of the manner in
which individual departments with intelligence components have
established procedures governing access by GAO. This is true for the
Department of Defense as well as other Departments, such the Department
of Homeland Security and its intelligence component, the Office of
Intelligence and Analysis. We expect that the DNI will coordinate
closely with the heads of such departments in order to ensure that the
DNI's directive resolves outstanding issues without disrupting GAO's
working relationships with such departments.
As written, this section requires the Director of National
Intelligence to submit this directive to ``the Congress.'' The intent
of this provision is to have this directive broadly available, in
unclassified form or classified form as the case may be, to those
committees with jurisdiction over the DNI, the 16 intelligence entities
in the intelligence community, the departments in which those agencies
reside, and the GAO.
There are additional technical, typographical and conforming changes
included in this legislation from S. 3611, the intelligence bill passed
by the Senate in August 2010. This includes a change in section 322,
the business system transformation section, in several places where an
action was to be taken by September 30, 2010. Those actions are now
required to be taken within 60 days after enactment.
In all other respects, the Feinstein-Bond amendment consists of
exactly what the Senate has already passed by unanimous consent. The
legislative history of S. 3611 is fully applicable to the provisions of
this amendment that are carried over from S. 3611. This legislative
history includes the committee report, S. Rep. No. 111-223, and the
floor statements and letters placed in the Record on Senate passage of
S. 3611, see 156 Cong. Rec. S6795-6799--daily ed., August 5, 2010. S.
Rep. No. 111-223 has a detailed section-by-section description of the
provisions of S. 3611, including a description of the reconciliation of
House and Senate provisions from H.R. 2701, as it passed the House, and
S. 1494.
I received today a letter from the general counsel in the Office of
the Director of National Intelligence, Mr. Robert Litt, indicating that
``the President's senior advisors would recommend that he sign this
bill if it is presented for his signature.'' I will ask that this
letter be printed in the Record.
As I noted at the outset, there has not been an intelligence
authorization act enacted in nearly 6 years. Prior to December 2004,
there had been such a bill every year since the creation of the
intelligence committees in the late 1970s.
It is vitally important for the intelligence committees to pass an
authorization bill this week. Failure to enact an authorization bill
weakens congressional oversight and it denies the intelligence
community appropriate updates in the law.
I would like to take a moment to recognize some individuals who have
devoted enormous time and effort to reaching this point. First, Senator
Kit Bond, the vice chairman of the committee, who has been fighting for
this legislation with me in a completely bipartisan way since we began
at the beginning of last year. Second, the members of the Intelligence
Committee who have contributed important provisions in the bill, and
have supported our efforts to keep the bill moving even in some cases
where their provisions had to be dropped.
And finally, the staff, who have drafted this bill three separate
times and conducted negotiations with the House Permanent Select
Committee on Intelligence, other offices in the House, the Office of
the Director of National Intelligence, and the White House for more
than a year. I would like to commend and thank my counsels: Mike
Davidson, Christine Healey, and Alissa Starzak for their work. I thank
as well Senator Bond's counsels, Jack Livingston and Kathleen Rice.
While there is no classified annex to authorize funding levels in
this bill, I appreciate the work begun by Lorenzo Goco and continued by
Peggy Evans in putting together the annex that accompanied the
intelligence authorization bills that passed the Senate last September
and this August.
Finally, I appreciate the work of Tommy Ross, national security
adviser to Majority Leader Harry Reid, for his substantial efforts to
make sure that the House and the executive branch remained engaged in
the negotiations over this bill.
I urge my colleagues to support this Senate amendment to the House
bill. If we are able to reach unanimous consent on this measure, it
will go back to the House for final passage and presentment to the
President. I am hopeful that we can accomplish this prior to recessing
later this week for the November elections, and urge support.
Mr. President, I ask unanimous consent to have printed in the Record
the letter from Mr. Robert Litt to which I referred.
There being no objection, the material was ordered to be printed in
the Record, as follows:
[[Page S7500]]
Office of the Director
of National Intelligence,
Washington, DC, September 27, 2010.
Hon. Dianne Feinstein,
Chairman, Select Committee on Intelligence, U.S. Senate,
Washington, DC.
Hon. Christopher Bond,
Vice Chairman, Select Committee on Intelligence, U.S. Senate,
Washington, DC.
Dear Madam Chairman and Vice Chairman Bond: On June 10,
2010, the Director of OMB wrote to inform you that, on the
assumption that there would be no material changes to the S.
3611, the Intelligence Authorization Act for Fiscal Year
2010, the President's senior advisors would recommend he sign
the bill. The Administration has reviewed the proposed
amendment to the Intelligence Authorization Act for Fiscal
Year 2010, embodied in the draft amendment in the nature of a
substitute to H.R. 2701 provided to us on September 24, 2010.
There are two significant changes from S. 3611 passed by the
Senate on August 5, 2010 relating to the Government
Accountability Office (GAO) and congressional notification.
Earlier provisions on these issues were subject to a veto
threat. However, based on our interpretation of the changes,
which I have outlined below, the President's senior advisors
would recommend that he sign this bill if it is presented for
his signature.
The proposed Senate amendment includes a new provision that
would require the Director of National Intelligence to issue
a directive, in consultation with the Comptroller General,
governing access of the Comptroller General to information in
the possession of an Intelligence Community element. Nothing
in this provision changes the underlying law with respect to
GAO access to intelligence information. We interpret this
provision to provide the DNI with wide latitude when
developing the directive to ensure that it conforms with (1)
the statutory provisions governing GAO's jurisdiction and
access to information; (2) the intelligence oversight
structure embodied in the National Security Act; and (3)
relevant opinions of the Office of Legal Counsel of the
Department of Justice.
The second significant change relates to the provision that
alters the current congressional notification framework. It
is important to note at the outset that the Administration
has already indicated that, with respect to the requirement
to provide ``the legal authority under which [an]
intelligence activity is being or was conducted,'' we
construe that requirement only to require that the
Executive Branch provide the committee with an explanation
of the legal basis for the activity; it would not require
disclosure of any privileged information or disclosure of
information in any particular form.
The proposed amendment would significantly change the
earlier version of this provision by requiring that the
Executive Branch provide all congressional intelligence
committee members who do not receive a finding or
notification a ``general description regarding the finding or
notification, as applicable, consistent with the reasons for
not yet fully informing all members of such committee.'' The
Administration has previously threatened to veto the
Intelligence Authorization Bill over a congressional
notification provision that contained similar language. This
provision, however, differs from the earlier provision
because the requirement to provide a ``general description''
is limited to a description that is ``consistent with reasons
for not yet fully informing all members of such committee.''
We interpret this new language as providing sufficient
flexibility to craft a description that the President deems
appropriate, based on the extraordinary circumstances
affecting vital interests of the United States resulting in
the limited notification, and recognizing the President's
authority and responsibility to protect sensitive national
security information in the context of the notice and general
description requirement.
We wish to confirm that you understand and agree with these
interpretations. We would prefer to reduce this
interpretation to writing for inclusion in the amendment
itself, and will work with you to that end; otherwise, we
wish to ensure that you agree with our interpretation of
these provisions. With these understandings, the President's
senior advisors would recommend that he sign this bill if it
is presented for his signature.
The Office of Management and Budget advises that, from the
standpoint of the Administration's Program, there is no
objection to the submission of this letter.
Sincerely,
Robert S. Litt,
General Counsel.
____________________