[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.

                          ____________________