[Congressional Record Volume 160, Number 91 (Thursday, June 12, 2014)]
[Senate]
[Pages S3656-S3658]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                  FY14 INTELLIGENCE AUTHORIZATION ACT

  Mrs. FEINSTEIN. Madam President, I am pleased to speak today on the 
Senate's passage last night of the Intelligence Authorization Act for 
Fiscal Year 2014. I would like to speak briefly on the bill itself, as 
well as the process for its passage.
  As Members know, the intelligence committee produces an authorization 
bill every year that both authorizes funds for the intelligence 
community and sets out legislation that authorizes and limits 
intelligence activities. This is the primary vehicle for legislation on 
intelligence matters and serves as one of the most important tools by 
which the intelligence committee, and indeed the Congress, is able to 
carry out its oversight duties.
  From the committee's formation in 1976 through 2004, the Congress 
passed intelligence authorization legislation every year. 
Unfortunately, that streak came to an end during the last decade, and 
there was no Intelligence bill signed into law from 2005 to 2009. It is 
no coincidence that during this period the congressional oversight was 
also at a low point.
  When I became chairman of the committee in January 2009, one of my 
top priorities was to reinstitute the annual authorization bill 
process. Fortunately, I was joined in that goal by then-vice chairman 
of the committee Kit Bond and by the chairman of the House Intelligence 
Committee, Silvestre Reyes. We also, importantly, had the support of 
the majority and Republican leaders in the Senate and the leaders of 
the two committees with the greatest shared interest in the bill, the 
Armed Services Committee and the Appropriations Subcommittee on 
Defense.
  I am proud that the Congress has passed and the President has signed 
Intelligence authorization bills each of the past 4 years. With the 
Senate's action yesterday, we stand ready to pass a fifth.
  The committee's preparation of the Fiscal Year 2014 Intelligence 
Authorization Act last summer was disrupted by the leaks, beginning in 
June 2013, of materials taken from the NSA by former contractor Edward 
Snowden. The committee held roughly a dozen hearings in the following 
months on NSA programs like the bulk phone metadata program conducted 
pursuant to title V of the Foreign Intelligence Surveillance Act, 
Section 215 of the USA PATRIOT Act, and the targeted collection of 
electronic communications of non-U.S. persons outside the United States 
under section 702 of the Foreign Intelligence Surveillance Act. These 
were programs that had already been the subject of considerable 
committee oversight and discussion over the past several years.
  The committee also received briefings on the extent of damage caused 
by the leaks and on the shortcomings of the internal security measures 
to prevent someone from accessing,

[[Page S3657]]

downloading, and leaving NSA with classified information.
  We marked up a separate bill, the FISA Improvements Act, last October 
and then marked up the Intelligence authorization bill last November.
  After approving the authorization bill, we worked with the House 
Intelligence Committee to produce the legislation that the Senate 
passed yesterday. We have preconferenced these bills over the past 
couple of years in order to move them through the process, with good 
results.
  Let me describe a few of the provisions in the bill, as well as one 
that was not included.
  First, the classified annex to the bill authorizes sufficient funding 
for the intelligence community to collect and analyze intelligence for 
our national security. Among other intelligence activities, the bill 
funds counterterrorism, counterproliferation, counterintelligence, and 
covert action programs.
  While classification prevents me from getting into specifics, the 
bill also continues the committee's practice of adding funding for 
intelligence agencies to implement a better insider threat detection 
system. We have been pushing the intelligence agencies to shore up 
their safeguards before Mr. Snowden and continue to do so afterwards.
  The bill recognizes that the intelligence community's funding has 
been reduced significantly due to budget cuts and sequestration. 
Director of National Intelligence James Clapper has testified that 
while the challenges facing the intelligence community have grown, its 
resources have declined. He has made clear that the community can not 
do ``more with less''--it is going to have to do less, and that means 
accepting additional risk.
  On the legislative side, the bill contains numerous provisions to 
strengthen intelligence oversight, protect whistleblowers, and enhance 
authorities for intelligence operations. Let me describe just a few of 
them here.
  Two provisions in the bill are intended to enhance congressional 
oversight of significant legal interpretations affecting intelligence 
activities, particularly when such interpretations result from opinions 
of the Justice Department's Office of Legal Counsel.
  Section 321 amends the National Security Act to require that the 
general counsel of each intelligence agency notify the congressional 
intelligence committees, in writing, of any significant legal 
interpretation of the U.S. Constitution or Federal law affecting 
intelligence activities conducted by that agency.
  While the committee generally is kept apprised of the legal basis for 
intelligence activities of the U.S. Government, as required by sections 
502 and 503 of the National Security Act, there have been times when we 
have not gotten enough information in this regard for us to provide 
oversight. This provision is intended to ensure that, in the future, 
the committee receives a detailed, written notification of significant 
legal interpretations from these general counsels in a timely manner, 
to include significant interpretations resulting from opinions of the 
Justice Department's Office of Legal Counsel, OLC.
  Section 322 requires the Attorney General to establish a process for 
the regular review for official publication of significant OLC opinions 
that have been provided to any part of the Intelligence Community.
  Section 322 also requires that if any OLC opinion would have been 
selected for official publication but for the fact that the publication 
would reveal classified or other sensitive information relating to 
national security, the opinion shall be provided or made available to 
the appropriate committees of Congress.
  The committee regularly conducts oversight of intelligence activities 
that are the subject of one or more OLC opinions. These opinions often 
represent the best and most comprehensive legal analysis of 
intelligence activities. Further, the opinions are sometimes cited by 
intelligence community officials as the basis for executive branch 
policy. The committee regards access to these legal opinions as 
necessary to the performance of its oversight functions and often 
requests access to such opinions, or the legal analysis contained in 
such opinions, when the committee is made aware of their existence.
  Unfortunately, the Department of Justice and the intelligence 
community routinely decline to provide the committee with access to OLC 
opinions that are relevant to the committee's oversight functions, even 
when access is specifically requested by the committee. At times, the 
Department and intelligence agencies will not even advise the committee 
that relevant OLC opinions exist. Generally, when refusing to provide 
access to OLC opinions, the executive branch asserts that the 
information sought by the committee is subject to privilege.
  The committee recognizes that, in certain limited cases, OLC opinions 
or information concerning OLC opinions may be entitled to executive 
privilege and withheld from Congress on that basis. Nonetheless, the 
Supreme Court has found in United States v. Nixon, 418 U.S. 683, 1974, 
that executive privilege is a narrow and qualified privilege that may 
be overcome by an adequate showing of need.
  Section 322 is intended to codify an agreement between the executive 
branch and the legislative branch with respect to access to OLC 
opinions provided to an intelligence agency. Specifically, section 322 
is intended to ensure the committee is, at a minimum, granted access to 
all OLC opinions provided to an element of the intelligence community, 
or information concerning such OLC opinions, that would have been made 
available to the public had it been unclassified. Section 322 does not 
alter and is not intended to alter the responsibilities of the 
executive branch under the National Security Act, the Freedom of 
Information Act, or any other statute establishing a requirement for 
the disclosure of information to Congress or to the public, and there 
remain areas of disagreement between the branches with respect to the 
scope of the executive branch's responsibilities under such statutes. 
In particular, the rule of construction set forth in section 322(d) is 
intended to apply only to official publication under this section and 
should not be interpreted as congressional affirmation of a 
``deliberative process'' privilege or any other privilege as the basis 
for withholding information from Congress or the public under any other 
statute.
  Title VI of the intelligence authorization legislation includes a 
number of provisions to enhance whistleblower protections for 
intelligence community employees. These provisions prohibit taking a 
personnel action against an intelligence community employee as a 
reprisal for making a protected whistleblower disclosure to the DNI or 
his designee, the inspector general of the intelligence community, the 
head of the employing agency or his designee, the appropriate inspector 
general of the employing agency, a congressional intelligence 
committee, or a member of a congressional intelligence committee. In 
addition, title VI prohibits agency personnel with authority over 
personnel security clearance or access determinations from taking or 
failing to take or threatening to take or failing to take any action 
with respect to any employee's security clearance or access 
determination in retaliation for a protected whistleblower disclosure. 
Finally, the title directs the DNI to create procedures to allow 
appeals of adverse security clearance and access determinations.
  These provisions strengthen and reaffirm the mechanisms already in 
existence for legitimate whistleblowers to bring information regarding 
violations of law or other concerns to one of several inspectors 
general throughout the government or to Congress. Importantly, these 
channels exist because it is not for any one person to decide on his 
own which intelligence methods are wise or effective.
  I would like to note my appreciation for Senator Collins for her work 
on this portion of the bill and for Senator Chambliss and Congressman 
Mike Rogers for engaging in lengthy negotiations to find the workable 
compromise included in this bill.
  Title IV of the bill requires Senate confirmation for the directors 
and inspectors general of the National Security Agency, NSA, and the 
National Reconnaissance Office, NRO. The individuals appointed to fill 
these positions perform critical roles in managing and/or overseeing 
technically complex,

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highly expensive programs, with significant implications for national 
security. These individuals also play a vital role in ensuring that 
intelligence activities carried out by the NSA and NRO are conducted in 
full compliance with the law and in a manner that protects the privacy 
and civil liberties of Americans. By requiring Presidential appointment 
and Senate confirmation of these four positions, Congress will be 
better able to fulfill its responsibility for providing oversight of 
the activities of these intelligence agencies.
  A separate Senate resolution will govern the process for handling the 
confirmation of individuals nominated to these four positions. I am 
cognizant that the confirmation process in the Senate is time 
consuming, and it is my intention to continue the intelligence 
committee's practice of considering nominees quickly and moving them 
through the Senate on a swift and bipartisan basis.
  Title V of the bill includes a number of provisions that are intended 
to improve the process for investigating persons who are proposed for 
access to classified information and adjudicating whether such persons 
satisfy the criteria for obtaining and retaining access to such 
information. Recent events, including the Snowden disclosures and the 
navy yard shooting, have highlighted the shortcomings of existing 
security clearance processes. The provisions in title V continue the 
committee's practice of seeking improvements to these processes. In 
particular, section 501 requires the DNI to ensure that the background 
of each employee or officer of the intelligence community, each 
intelligence community contractor, and each individual employee of such 
a contractor who has been determined to be eligible for access to 
classified information is monitored on a continual basis under 
standards developed by the Director.
  Finally, section 309 continues Congress's push for financial 
auditability within the intelligence community by requiring key 
agencies to undergo full financial audits, beginning with their fiscal 
year 2014 financial statements and to take all reasonable steps to 
achieve an unqualified opinion on financial statements by fiscal year 
2016.
  With the budget reductions of the past couple of years, we simply 
cannot afford to mismanage Federal funds. Achieving financial 
auditability is a key tool to identify and eliminate wasted funding, 
and I am pleased to say that intelligence agencies are making progress 
in this regard--though they still have work to do.
  In addition, I want to note one provision that does not appear in the 
bill as passed by the Senate. During the intelligence committee's 
consideration of this legislation, I moved an amendment, which was 
adopted by the committee, regarding U.S. counterterrorism operations. 
Specifically, the provision would have required that the President 
issue an annual public report that sets forth the total number of 
combatants and noncombatant civilians killed or injured during the 
preceding year through the use of targeted lethal force outside the 
United States by remotely piloted aircraft.
  While the amendment was approved in committee, there was sufficient 
opposition to its inclusion in both the Senate and the House that the 
bill would not have passed with the provision included. I agreed to 
remove the provision from the bill but have engaged with the executive 
branch on the issue. I received a letter from Director of National 
Intelligence Clapper, dated April 18, 2014, that says the executive 
branch is ``currently exploring ways in which it can provide the 
American people more information about the United States' use of force 
outside areas of active hostilities'' and is ``committed to . . . 
sharing as much information as possible with the American people and 
the Congress.''
  I continue to believe that it is important to release these figures 
concerning the number of people killed or injured by the use of 
targeted lethal force outside the United States by remotely piloted 
aircraft, as the public estimates of the number of casualties are so 
different from the official figures we have received. This will 
continue to be of interest, and I will continue to address the issue in 
the Senate and with the administration.
  Today, though, I am very pleased that the Fiscal Year 2014 
Intelligence Authorization Act has been approved by the Senate and is 
on its way to the House of Representatives. I believe that the bill 
includes a number of important measures and that by continuing to enact 
legislation, the intelligence committee will further strengthen its 
oversight role of U.S. intelligence activities.
  Finally, I would like to thank, as always, the vice chairman of the 
committee, Senator Saxby Chambliss. We have worked together on this 
bill, and both of us support the package. We have also had to work both 
sides of the aisle to achieve unanimous support for the measure, and I 
thank him for his work and partnership.
  I would also like to thank the staff who put the bill together. On 
the Democratic side, that is principally Eric Losick, SSCI counsel, Jon 
Rosenwasser, SSCI budget director, deputy staff director Lorenzo Goco, 
and counsel Mike Buchwald.
  On the Republican side, I thank Jack Livingston and Kathleen Rice, 
our minority counsels, and Hayden Milberg, minority budget director.
  I thank my colleagues for their support.

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