[Senate Report 111-6]
[From the U.S. Government Publishing Office]



111th Congress                                                   Report
 1st Session                   SENATE                             111-6                                                            _______________________________________________________________________                                     
 
                                 REPORT

                                 OF THE

                    SELECT COMMITTEE ON INTELLIGENCE

                          UNITED STATES SENATE

                          covering the period

                            JANUARY 4, 2007

                                   to

                            JANUARY 2, 2009


[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]



                 March 9, 2009.--Ordered to be printed
                               ----------

                        U.S. GOVERNMENT PRINTING OFFICE 

                                WASHINGTON : 2009


















                    SELECT COMMITTEE ON INTELLIGENCE

                 DIANNE FEINSTEIN, California, Chairman
              CHRISTOPHER S. BOND, Missouri, Vice Chairman
JOHN D. ROCKEFELLER IV, West         ORRIN HATCH, Utah
    Virginia                         OLYMPIA J. SNOWE, Maine
RON WYDEN, Oregon                    SAXBY CHAMBLISS, Georgia
EVAN BAYH, Indiana                   RICHARD BURR, North Carolina
BARBARA A. MIKULSKI, Maryland        TOM COBURN, Oklahoma
RUSSELL D. FEINGOLD, Wisconsin        JAMES RISCH, Idaho
BILL NELSON, Florida
SHELDON WHITEHOUSE, Rhode Island
                 HARRY REID, Nevada, Ex Officio Member
              MITCH McCONNELL, Kentucky, Ex Officio Member
                CARL LEVIN, Michigan, Ex Officio Member
                JOHN McCAIN, Arizona, Ex Officio Member
                     David Grannis, Staff Director
                Louis B. Tucker, Minority Staff Director
                    Kathleen P. McGhee, Chief Clerk

During the period covered by this report, the composition of the Select 
Committee on Intelligence was as follows:

            JOHN D. ROCKEFELLER IV, West Virginia, Chairman
              CHRISTOPHER S. BOND, Missouri, Vice Chairman
DIANNE FEINSTEIN, California         JOHN WARNER, Virginia
RON WYDEN, Oregon                    CHUCK HAGEL, Nebraska
EVAN BAYH, Indiana                   SAXBY CHAMBLISS, Georgia
BARBARA A. MIKULSKI, Maryland        ORRIN HATCH, Utah
RUSSELL D. FEINGOLD, Wisconsin       OLYMPIA J. SNOWE, Maine
BILL NELSON, Florida                 RICHARD BURR, North Carolina
SHELDON WHITEHOUSE, Rhode Island
                 HARRY REID, Nevada, Ex Officio Member
              MITCH McCONNELL, Kentucky, Ex Officio Member
                CARL LEVIN, Michigan, Ex Officio Member
                JOHN McCAIN, Arizona, Ex Officio Member
                   Andrew W. Johnson, Staff Director
                Louis B. Tucker, Minority Staff Director
                    Kathleen P. McGhee, Chief Clerk
                                PREFACE

    The Select Committee on Intelligence submits to the Senate 
this report on its activities from January 4, 2007 to January 
2, 2009. This report will include references to activities 
underway at the conclusion of the 110th Congress that the 
Committee expects to continue into the future.
    Under the provisions of Senate Resolution 400 of the 94th 
Congress, the Committee is charged with the responsibility of 
carrying out oversight of the programs and activities of the 
Intelligence Community of the United States. Of necessity, most 
of the Committee's work is conducted in secret. Nevertheless, 
throughout its history, the Committee has believed that its 
activities should be as publicly accountable as possible. It is 
in that spirit that we submit this report to the Senate, just 
as the Committee has been doing since the year after its 
creation in 1976.
    We take this opportunity to thank all of the members of the 
Committee in the 110th Congress. In particular, we acknowledge 
the leadership of Senator John D. Rockefeller IV who served as 
Chairman during the 110th Congress and Vice Chairman from 2003 
through 2006. Senator Rockefeller has stepped down as Chairman 
but will continue his service on the Committee. We take special 
note of those of our colleagues who have completed their 
service on the Committee upon their retirement from the Senate. 
Senator John Warner served on the Committee from 1987 through 
1994, including as our Vice Chairman in 1993 and 1994, and then 
from 2003 through 2008. Senator Chuck Hagel served on the 
Committee from 2003 through 2008. Their commitment to the work 
of the Committee and their contribution to a strong 
Intelligence Community are appreciated.
    We are also grateful for the work of all members of the 
Committee's staff during the 110th Congress. Their hard work 
and professionalism were indispensable to the Committee's 
efforts to meet its responsibilities.
                                   Dianne Feinstein, Chairman
                                   Christopher S. Bond,
                                     Vice Chairman





















                            C O N T E N T S

                              ----------                              
                                                                   Page
Preface..........................................................   iii
 I.  Introduction.....................................................1
II.  Legislation......................................................1
    A. FISA Amendments Act of 2008...............................     1
        1. Background to the Protect America Act of 2007 and the 
          FISA Amendments Act of 2008............................     1
        2. The Protect America Act of 2007.......................     3
        3. The FISA Amendments Act of 2008.......................     3
    B. Intelligence Authorization Bills for 2007, 2008, and 2009.     6
    C. Implementing Recommendations of the 9/11 Commission Act of 
      2007.......................................................    10
        1. Section 601: Declassification of the Total Amount 
          Appropriated for National Intelligence.................    11
        2. Sections 602 and 604: Public Interest Declassification 
          Board..................................................    12
        3. Section 603: Structure of Congressional Oversight.....    13
        4. Section 605: Public Release of Declassified Executive 
          Summary of CIA Inspector General 9/11 Accountability 
          Report.................................................    13
    D. National Defense Authorization Act for Fiscal Year 2008...    14
    E. Inspector General Reform Act of 2008......................    16
    F. Administration Views on Bills Referred to the Intelligence 
      Committee..................................................    16
        1. General Accountability Office Participation in 
          Intelligence Community Audits and Evaluations..........    17
        2. Detention and Interrogation...........................    18
    G. Committee Views on Law of the Sea Convention..............    18
    H. Amendment of Senate Resolution 400 (94th Congress)........    19
III. Oversight Activities............................................20

    A. Hearings and Briefings....................................    20
    B. Study Groups..............................................    21
        1. Iran Intelligence Collection and Analysis.............    21
        2. Terrorist Safehavens..................................    21
        3. Clandestine Human Source Intelligence (HUMINT)........    22
        4. Terrorist Ideology....................................    22
        5. China.................................................    23
        6. Cyber Security........................................    23
    C. Committee Inquiries and Reviews...........................    24
        1. Inquiry into the Prewar Intelligence Assessments on 
          Iraq...................................................    24
        2. Electronic Surveillance...............................    25
            a. President's Surveillance Program..................    25
            b. Transition to FISC Orders in 2007.................    26
            c. Oversight of Implementation of the Protect America 
              Act of 2007........................................    26
            d. Oversight of Implementation of the FISA Amendments 
              Act of 2008........................................    26
            e. Allegation of Improper Intelligence Activities at 
              Fort Gordon, GA....................................    27
        3. Iraq..................................................    27
        4. Information Security in the Intelligence Community....    28
        5. Research and Development..............................    28
        6. The ODNI and Revision of E.O. 12333...................    29
        7. Consideration of Supplemental Requests................    30
        8. Information Sharing...................................    31
            a. Information Technology............................    31
            b. Information Security..............................    32
        9. Attorney General Guidelines...........................    32
        10. FBI Intelligence Transformation......................    34
        11. IC Counterterrorism Analysis and Operations..........    35
        12. Covert Action........................................    35
        13. CIA Presidentially Directed Growth...................    36
        14. CIA Lessons Learned Program..........................    36
        15. Oversight of Department of Homeland Security 
          Intelligence Activities................................    37
        16. Defense Intelligence Officers........................    38
        17. Armed Forces Medical Intelligence Center.............    38
        18. Defense Counterintelligence and HUMINT Center........    39
        19. CIA Interrogation Tapes..............................    39
    D. Financial Accounting, Inspectors General, and Audits......    39
        1. IC Compliance with Federal Financial Accounting 
          Standards..............................................    40
        2. Oversight of Intelligence Community Inspectors General    41
        3. Audits................................................    42
            a. Document Exploitation.............................    42
            b. Compartmented Program.............................    43
            c. Intelligence Community Acquisition Processes......    43
IV.  Nominations.....................................................44
    A. J. Michael McConnell, Director of National Intelligence...    45
    B. John A. Rizzo, General Counsel, Central Intelligence 
      Agency.....................................................    45
    C. Donald M. Kerr, Principal Deputy Director of National 
      Intelligence...............................................    46
    D. Michael E. Leiter, Director of the National 
      Counterterrorism Center....................................    47
    E. J. Patrick Rowan, Assistant Attorney General for National 
      Security, Department of Justice............................    47
 V.  Support to the Senate...........................................48
VI.  Appendix........................................................49
                            I. INTRODUCTION

    The Committee's work in the 110th Congress was shaped, in 
large part, by events that occurred in late 2006 and early 
2007.
    After CIA detainees were transferred to Guantanamo in 
September 2006, information about the CIA's detention program, 
which had previously been restricted to the Chairman and Vice 
Chairman, was briefed to the entire membership of the 
Committee. In January 2007, during the first month covered by 
this report, President Bush nominated J. Michael McConnell to 
be the second Director of National Intelligence (DNI), 
replacing the first DNI, John D. Negroponte, who was nominated 
to be the Deputy Secretary of State.
    Also in January 2007, Attorney General Gonzales informed 
the Judiciary and Intelligence Committees that, as a result of 
a recent Foreign Intelligence Surveillance Court ruling, 
electronic surveillance that had been conducted under the 
President's Terrorist Surveillance Program (TSP) would now be 
conducted under court authorization. Then, in March 2007, 
Chairman Rockefeller and Vice Chairman Bond commenced efforts 
with the Attorney General and DNI McConnell, whom the Senate 
had confirmed in February, to consider amendments to the 
Foreign Intelligence Surveillance Act (FISA).
    The Committee's expanded knowledge of the CIA's detention 
program, and evolving circumstances concerning foreign 
intelligence surveillance matters, combined with priorities of 
the new DNI, and ever present and challenging intelligence 
issues relating to Iran, North Korea, Afghanistan and Pakistan, 
and Iraq, all served as the basis of important undertakings of 
the Committee during the 110th Congress.

                            II. LEGISLATION

                     A. FISA Amendments Act of 2008

    The enacting of amendments to the Foreign Intelligence 
Surveillance Act was a central part of the Committee's 
legislative activities during the 110th Congress.
1. Background to the Protect America Act of 2007 and the FISA 
        Amendments Act of 2008
    In December 2005, President Bush acknowledged the existence 
of a presidential electronic surveillance program that was 
being operated outside of the Foreign Intelligence Surveillance 
Act. The program, which came to be known as the President's 
Terrorist Surveillance Program, was described as authorizing 
the National Security Agency (NSA) to intercept international 
communications into and out of the United States of persons 
linked to al Qaeda or related terrorist organizations. In 
January 2006, the Department of Justice (DOJ) released a paper 
entitled ``Legal Authorities Supporting the Activities of the 
National Security Agency Described by the President.'' The 
paper addressed, in an unclassified form, DOJ's view of the 
legal basis for the activities acknowledged by the President. 
During 2006, dozens of lawsuits were filed challenging the 
legality of the President's program, including actions for 
damages against telecommunications companies alleged to have 
participated in the program. Both Houses of Congress also 
considered bills related to the President's program during 
2006, but none of the legislation was enacted.
    In January 2007, soon after the 110th Congress convened, 
Attorney General Gonzales wrote to the Senate and House 
Judiciary and Intelligence Committees that a judge of the 
Foreign Intelligence Surveillance Court (FISC) had issued 
orders authorizing the Government to target for collection 
international communications into or out of the United States 
where there is probable cause to believe that one of the 
parties to the communication is a member of al Qaeda or a 
related terrorist organization. The letter advised the 
committees that as a result of the FISC order the electronic 
surveillance that had been occurring as part of the TSP would 
now be conducted with FISC approval. It further advised them 
that the President had determined not to reauthorize the TSP 
when then-current authorizations expired.
    The decision to transfer collection from presidential to 
FISC authority did not resolve, however, whether legislation 
was needed both to modernize FISA and to address the many 
lawsuits brought against private carriers for alleged 
participation in the President's program. In light of that, in 
March 2007, Chairman Rockefeller and Vice Chairman Bond 
notified Attorney General Gonzales of their intention to 
address those questions. To that end, they requested that the 
Administration submit a formal proposal for legislation. The 
Director of National Intelligence submitted a proposal in April 
2007 to amend the collection authorities of FISA and also to 
provide immunity from lawsuits arising out of the TSP.
    On May 1, 2007, the Committee held a public hearing to 
enable the Administration to explain as openly as possible why 
the legislation it was proposing should be enacted. The full 
record of that hearing, which the Committee entitled 
``Modernization of the Foreign Intelligence Surveillance Act,'' 
is printed in S. Hrg. 110-399. DNI McConnell and Kenneth 
Wainstein, Assistant Attorney General for National Security, 
testified. Statements for the record were also received, posted 
on the Committee's website, and printed in the published 
hearing record from the following: Kevin Bankston, Electronic 
Frontier Foundation; James Dempsey, Center for Democracy and 
Technology; Bruce Fein, former Department of Justice official; 
Caroline Frederickson, American Civil Liberties Union; David 
Kris, former Department of Justice official; Kate Martin and 
Lisa Graves, Center for National Security Studies; Suzanne 
Spaulding, former Central Intelligence Agency and House and 
Senate Intelligence Committee counsel; and K.A. Taipale, Center 
for Advanced Studies in Science and Technology Policy. The 
Committee also held classified hearings and received classified 
information through briefings, interviews, written questions, 
and the examination of documents. See S. Rep. No. 110-209, at 2 
(2007).
2. The Protect America Act of 2007
    The timetable for considering FISA legislation was affected 
by two circumstances in the late spring and early summer of 
2007.
    First, at the end of May 2007, the Intelligence Community 
(IC) brought to the Committee's attention a ruling by the FISC 
that had an effect on the collection of foreign intelligence. 
In the regular 90-day cycle of reauthorizations by the FISC of 
electronic surveillance orders, a judge of that court, on 
considering in April 2007 an application to renew the orders 
issued in January 2007, issued a ruling that the DNI later 
described as significantly diverting NSA analysts from their 
counterterrorism mission to provide information to the Court. 
In late July 2007, the DNI informed Congress that the decision 
of the second FISA judge had led to degraded capabilities in 
the face of a heightened terrorist threat environment. Second, 
the Committee had not yet succeeded in obtaining access to 
documentation--namely, the presidential authorizations for the 
program and the legal opinions of the Department of Justice 
which supported those authorizations--the Committee had 
repeatedly requested for its consideration of legislation on 
immunity for telecommunication companies.
    These circumstances led to a decision to separate the 
question of an immediate, short term measure on intelligence 
collection from that of a longer term measure on both FISA 
modernization and immunity for telecommunication companies that 
had participated in the program. On July 27, 2008, the Director 
of National Intelligence sent an interim legislative proposal 
to Majority Leader Harry Reid, Minority Leader Mitch McConnell, 
Speaker Nancy Pelosi, and Minority Leader John Boehner. The DNI 
stated that the interim proposal significantly narrowed his 
earlier legislative request and that it did not include 
liability protection for those who were alleged to have 
assisted the Government following September 11, 2001. On August 
3, 2007, the Senate adopted S. 1927, the Protect America Act of 
2007 (PAA), sponsored by Minority Leader Mitch McConnell and 
Vice Chairman Christopher S. Bond, which the House passed the 
following day and the President signed into law as Pub. L. 110-
55. The PAA authorized the DNI and the Attorney General to 
acquire foreign intelligence concerning persons outside the 
United States if the acquisition involved the assistance of a 
communications provider and a significant purpose of the 
collection was the acquisition of foreign intelligence. The PAA 
was to sunset after 180 days, which the Congress subsequently 
extended for 15 days until February 16, 2008 (Pub. L. 110-182); 
notwithstanding the sunset, pursuant to the PAA, authorizations 
under it remained in effect for a year from their issuance. The 
PAA did not address the question of immunity for participation 
in the TSP.
3. The FISA Amendments Act of 2008
    On October 9, 2007, the Committee gained access to the 
presidential authorizations and supporting DOJ opinions for the 
TSP. After a Committee business meeting at which it acted on 
seven amendments, the Committee by a vote of 13-2 favorably 
reported on October 26 an original bill, S. 2248, the FISA 
Amendments Act of 2007, with an accompanying report, S. Rep. 
No. 110-209, that contained additional and minority views. 
Under the terms of S. Res. 400 (1976), the Committee on the 
Judiciary obtained sequential referral of the bill, which it in 
turn reported on November 16, 2007, with a report--S. Rep. No. 
110-258--that was filed on January 22, 2008.
    There were three rounds of Senate floor debate on cloture, 
amendments, and passage: 153 Cong. Rec. (Dec. 14-17, 2007); 154 
Cong. Rec. (Jan. 23-Feb.12, 2008) (including a managers' 
amendment in the form of a complete substitute, agreed to on 
January 24, 2008); and 154 Cong. Rec. (June 25 and July 8-9, 
2008). On February 12, 2008, the Senate passed S. 2248 by a 
vote of 68-29, which it sent to the House as an amendment to 
H.R. 3773, the House-passed FISA bill. On March 14, 2008, the 
House, by a vote of 213-197, voted to return H.R. 3773 to the 
Senate with an amendment. On June 20, 2008, following an 
agreement reached without a formal conference, the House, by a 
vote of 293-129, passed a new bill, H.R. 6304, which contained 
a complete compromise of the differences between the measures 
that each House had passed earlier. On July 9, by a vote of 69-
28, the Senate joined in passing H.R. 6304. During debate on 
the bill, the Chairman and Vice Chairman of this Committee each 
placed in the Congressional Record sectional analyses of the 
Act. Those statements built on the Committee's analysis of S. 
2248 in its October 2007 report with changes to reflect Senate 
floor action on S. 2248 and the compromises embodied in H.R. 
6304: 154 Cong. Rec. S6129-35 (daily ed., June 25, 2008) 
(Chairman Rockefeller); id., S6387-94 (daily ed., July 8, 2008) 
(Vice Chairman Bond); see also id., S6404-6405 (daily ed., July 
8, 2008) (Chairman Rockefeller); id., S6471 (daily ed., July 9, 
2008) (colloquy between Chairman Rockefeller and Vice Chairman 
Bond). President Bush signed the bill into law, as Pub. L. 110-
261, on July 10, 2008. 44 Weekly Comp. Pres. Doc. 975.
    The FISA Amendments Act of 2008 (FAA) addresses two 
principal challenges. First, looking forward, it provides for 
the targeting of persons reasonably believed to be located 
outside the United States, under a system of judicial and other 
oversight that is intended to protect the privacy and civil 
liberties of U.S. citizens and permanent residents. Second, 
looking back, it provides protection by way of immunity to 
electronic communication service providers who provided 
assistance to the Intelligence Community between September 11, 
2001, and the conclusion of the President's program in January 
2007, upon receiving written assurances that the program had 
been authorized by the President and determined to be lawful. 
Additionally, the Act establishes procedures for protecting 
service providers who have provided in the past, or provide in 
the future, assistance to the Intelligence Community in 
accordance with orders of the FISC or written certifications of 
the Attorney General under specified provisions of Title 18. 
The Act has no effect on any litigation against government 
officials in relation to the President's program and provides 
for a thorough review of and report on the President's program 
by Inspectors General with relevant jurisdiction.
     Title I of the FISA Amendments Act of 2008 
establishes a new Title VII of FISA on foreign intelligence 
collection targeted against persons reasonably believe to be 
located outside of the United States.
     Section 702 replaces the temporary authority of 
the Protect America Act by authorizing collection of foreign 
intelligence in the United States with the assistance of 
electronic communication service providers that is targeted 
against non-U.S. persons reasonably believed to be outside the 
United States. The PAA had authorized collection ``concerning'' 
persons reasonably believed to be located outside the U.S. 
Section 702 eliminates the vagueness associated with the word 
``concerning'' and instead authorizes the ``targeting'' of 
persons. The PAA had not provided for judicial review of 
minimization procedures; section 702 provides for that review. 
It also establishes a series of limitations on collection to 
ensure that surveillance under section 702 is not directed at 
persons within the United States or at U.S. persons inside or 
outside of the United States. The judicial review of targeting 
and minimization procedures is to occur prior to the 
commencement of collection under a DNI and Attorney General 
authorization unless they determine that exigent circumstances 
exist. The ground for exigent circumstances is whether, without 
immediate implementation, intelligence important to national 
security may be lost or not timely acquired. Section 702 
modifies the procedures for judicial review, both in the form 
of enforcement petitions against non-complying carriers and 
their petitions for judicial review, of directives issued to 
carriers by the DNI and the Attorney General. It also enhances 
oversight by Inspectors General and the House and Senate 
Intelligence and Judiciary Committees.
     Section 703 governs the targeting of U.S. persons 
who are reasonably believed to be outside the United States 
when the acquisition of foreign intelligence is conducted 
inside the United States. It establishes procedures, drawn from 
Titles I and III of FISA, which provide for renewable FISC 
determinations that there is probable cause to believe that the 
U.S. person is a foreign power or an agent, officer, or 
employee of a foreign power.
     Section 704 governs other acquisitions that target 
U.S. persons outside the United States. It addresses any 
targeting of a U.S. person outside of the United States under 
circumstances in which that person would have a reasonable 
expectation of privacy and a warrant would be required if the 
acquisition were conducted in the United States. It thus covers 
not only communications intelligence but the physical search of 
a home or office of a U.S. person by an element of the U.S. 
Intelligence Community outside of the United States. For the 
first time, in accordance with section 704, any targeting of a 
U.S. person outside the United States now requires a renewable 
90-day FISC determination that there is probable cause to 
believe that the U.S. person is a foreign power or an agent, 
officer, or employee of a foreign power.
     The FAA, in section 102, reiterates that FISA and 
designated chapters of Title 18 of the United States Code are 
the exclusive means by which electronic surveillance and 
interception of certain communications may be conducted and 
provides that only an express authorization may be an 
additional exclusive means for electronic surveillance or 
domestic interception.
     The FAA provides for the sunset of these 
authorities on December 31, 2012, so that Congress and the 
Executive must review them before the end of the term of the 
current President.
     Title II of the FISA Amendments Act of 2008 
establishes a new Title VIII of FISA on the ``Protections of 
Persons Assisting the Government.'' Section 802 establishes 
procedures for implementing statutory defenses. No civil action 
may lie or be maintained against a person for providing 
communications information or access to an IC element if the 
Attorney General certifies one of five things. Three of the 
grounds for certification are that the assistance was provided 
pursuant to a FISC order, a certification under Title 18 of the 
U.S. Code, or a directive under the PAA or FAA. The fourth 
ground is related specially to the President's program. It 
authorizes an immunity certification for actions against a 
carrier for the provision of assistance to the Intelligence 
Community in connection with an intelligence activity 
authorized by the President between September 11, 2001 and 
January 17, 2007, that was designed to detect or prevent a 
terrorist attack against the U.S., and for which there was a 
written request or directive that the activity was authorized 
by the President and determined to be lawful. The fifth ground 
for a certification is that the defendant in a lawsuit had not 
provided the alleged assistance. The court is to give the 
certification effect unless it determines that the 
certification is not supported by substantial evidence. In 
making that determination, the court may review the written 
requests or directives to carriers, among other materials. 
While classified material shall be considered in camera, 
section 802 protects the opportunity of plaintiffs to take part 
in the briefing and argument of legal issues. The underlying 
premise of the new Title VIII is that carriers who responded to 
the request for assistance after September 11, upon receiving 
written high-level representations of authorization and 
legality, should not be subject to liability for their 
assistance during that period. The Committee also determined 
that the Intelligence Community cannot obtain the intelligence 
it needs without assistance from electronic communication 
service providers, and expressed in its report the concern that 
without retroactive immunity the private sector might be 
unwilling to cooperate with lawful Government requests in the 
future without unnecessary court involvement and protracted 
litigation. Nevertheless, in the future, as the Committee 
explicitly admonishes in its report, the Government and 
carriers should adhere to the precise statutory requirements 
for surveillance assistance. Nothing in Title VIII diminishes 
any right to relief from Government parties.
     Title III of the FISA Amendments Act of 2008 
provides for a comprehensive review, within the oversight 
authority and responsibility of each, by Inspectors General 
whose departments or IC elements participated in the TSP. A 
final report in unclassified form, but which may include a 
classified annex, shall be submitted to the House and Senate 
Intelligence and Judiciary Committees within a year (July 10, 
2009) of the enactment of the FISA Amendments Act of 2008.

      B. Intelligence Authorization Bills for 2007, 2008, and 2009

    Our last biennial report observed that the 109th Congress 
was the first since establishment of the Intelligence Committee 
in the 94th Congress which did not enact an Intelligence 
Authorization. S. Rep. No. 110-57, at 3. Unfortunately, the 
110th Congress fared no better.
    The Committee's first legislative endeavor in the 110th 
Congress was to attempt to revive the fiscal year 2007 bill by 
again reporting it to the Senate. S. 372; S. Rep. No. 110-2 
(Jan. 24, 2007). After a sequential report by the Committee on 
Armed Services, S. Rep. No. 110-5 (2007), the Senate invoked 
cloture on a motion to proceed to consideration of the bill, 
but on April 16, 2007, by a vote of 41-40, cloture was not 
invoked on the bill itself. 153 Cong. Rec. S 4471-72 (daily 
ed.). During debate on April 16 and 17, amendments were offered 
and a number were agreed to by unanimous consent. After a 
motion to reconsider the vote by which cloture was not invoked, 
cloture again failed, by a vote of 50-45. 153 Cong. Rec. S 4580 
(daily ed., Apr. 17, 2007). The bill was returned to the 
calendar and efforts to pass a fiscal year 2007 authorization 
ended.
    In the first months of both 2007 and 2008, the Committee 
conducted its annual review of the President's budget 
recommendations for the civilian and military agencies and 
departments comprising the Intelligence Community for fiscal 
years 2008 and 2009. These reviews included the National 
Intelligence Program and the Military Intelligence Program 
(concerning which the Committee makes recommendations to the 
Senate Armed Services Committee).
    The intelligence entities covered by the annual reviews 
included the Office of the Director of National Intelligence 
(ODNI), the Central Intelligence Agency (CIA), the Defense 
Intelligence Agency (DIA), the NSA, the National Geospatial-
Intelligence Agency (NGA), the National Reconnaissance Office 
(NRO), the intelligence capabilities of the military services 
and the Coast Guard, as well as the intelligence-related 
components of the Federal Bureau of Investigation (FBI), the 
Departments of State, Treasury, Energy, and Homeland Security, 
and the Drug Enforcement Administration.
    As part of its reviews in 2007 and 2008, the Committee held 
closed budget hearings at which senior IC officials testified. 
During briefings at the Committee and on site at IC agencies, 
Committee staff members, designated as budget monitors for 
particular IC elements, evaluated detailed budget 
justifications submitted by the Executive Branch. On the basis 
of those reviews, the Committee prepared a classified annex to 
each annual bill and report. Each annex contained a classified 
schedule of appropriations and classified directions to IC 
elements that addressed a wide range of issues identified 
during the annual budget reviews and other Committee oversight 
activities.
    While these annual budget reviews were in progress, the 
Committee also reviewed the Administration's proposals for the 
public part of each annual bill, consisting of new or amended 
legislative authority requested by the IC. The Committee also 
considered other legislative proposals originating in the 
Committee, notably provisions that had been included in the 
proposed fiscal year 2007 bill. From this part of its work, the 
Committee produced an original bill and also a public report 
for each of fiscal years 2008 and 2009. The reports explained 
the provisions of each bill and also provided comments, 
including directions to the IC, which could be stated in an 
unclassified form.
    As a result of this extensive process in 2007 and again in 
2008, the Committee reported two Intelligence Authorizations 
bills with accompanying reports and classified annexes, one for 
fiscal year 2008 and the second for fiscal year 2009.
    On May 31, 2007, the Committee reported S. 1538, its 
proposed Intelligence Authorization Act for Fiscal Year 2008, 
accompanied by S. Rep. No. 110-75 (2007). The bill was 
sequentially referred to the Armed Services Committee and then 
reported by that Committee. S. Rep. No. 110-92 (2007). On 
October 3, 2007, the Senate passed S. 1538 with a managers 
amendment and sent it to the House in the form of an amendment 
to H.R. 2082, the fiscal year 2008 authorization bill passed by 
the House of Representatives. A conference committee reported 
H.R. 2082 on December 6, 2007. H.R. Rep. No. 110-478 (2007). By 
a vote of 222-199, the House agreed to the conference report on 
December 13, 2007. 153 Cong. Rec. H15426 (daily ed.). On 
February 13, 2008, by a vote of 51-45 the Senate also approved 
the conference report. 154 Cong. Rec. S 937 (daily ed.). On 
March 8, 2008, the President vetoed H.R. 2082 by returning it 
to the House with his objections. 154 Cong. Rec. H1419 (daily 
ed.). By a vote of 225-188, the House failed to override. 154 
Cong. Rec. H1502 (daily ed., March 11, 2008).
    On May 8, 2008, the Committee reported S. 2996, its 
proposed Intelligence Authorization Act for Fiscal Year 2009, 
accompanied by S. Rep. No. 110-333 (2008). S. 2996 included 
many of the legislative provisions that had been in the 
conference report on the fiscal year 2008 bill. No Senate floor 
action occurred on the 2009 bill, which expired at the end of 
the 110th Congress together with H.R. 5959, the Intelligence 
Authorization Act for Fiscal Year 2009 that had passed the 
House on July 16, 2008.
    Thus, the 110th Congress became the second Congress since 
the 94th not to enact an intelligence authorization bill. For 
three straight fiscal years, 2006, 2007, and 2008, and for at 
least the beginning of fiscal year 2009, authorization for IC 
activities has been provided by stop-gap provisions in the 
appropriations acts for the Department of Defense (and similar 
provisions in other appropriations) which provide that funds 
appropriated by them are deemed to be authorized during the 
fiscal year until enactment of an intelligence authorization 
act for that year (e.g., Consolidated Security, Disaster 
Assistance, and Continuing Appropriations Act, 2009, Pub. L. 
No. 110-329, Section 8080).
    As the Committee noted in its 109th Congress report, the 
effect of failure to complete action on an intelligence 
authorization bill is not limited to the authorization of 
appropriations. Apart from the rare major restructuring of the 
Intelligence Community that occurred by virtue of the 
Intelligence Reform and Terrorism Prevention Act of 2004 (Pub. 
L. 108-458), and for occasional intelligence items that are 
enacted in other laws (see parts II(C)-(E) below), annual 
intelligence authorization acts have been the regular means for 
adjusting, as needs are recognized, the statutory authorities 
of the IC. The last time that occurred on a regular basis was 
four years ago in the enactment in December 2004 of the 
Intelligence Authorization Act for Fiscal Year 2005.
    The Committee's legislative proposals during the 110th 
Congress are explained in detail in our reports on the 2007, 
2008, and 2009 bills and in the conference report on the 2008 
bill. The principal recommendations included:
     Measures to enhance the authority and flexibility 
of the DNI to manage personnel. These included added authority 
over IC personnel levels, the movement of personnel to where 
they are needed through details from one IC element to another 
IC element, and enhanced pay for critical positions such as 
those requiring special technical abilities. In its 2008 and 
2009 bills, the Committee supported increasing the DNI's 
ability to manage IC personnel as part of a community, such as 
by extending scholarship programs to IC elements that now lack 
them. This enhanced management authority, however, was not 
contained in the conference report on the 2008 bill, and will 
require further study in the House. The enhanced personnel 
management authority was accompanied by provisions to improve 
IC personnel planning, to account for the number and use of the 
Intelligence Community's burgeoning number of contractors, and 
to facilitate the replacement of contractors with regular IC 
employees.
     Measures to improve information sharing by 
authorizing interagency funding to quickly address deficiencies 
or needs that arise in intelligence information access or 
sharing capabilities, and also to improve the DNI's ability to 
finance national intelligence centers and other means to 
address intelligence issues through coordinated efforts in the 
Intelligence Community.
     Acquisition reforms, including vulnerability 
assessments of major systems, establishment of requirements for 
a business enterprise architecture to enhance IC business 
system modernization, and a measure to curb excessive cost 
growth of major systems.
     Establishment of a strong and independent 
Inspector General (IG) for the Intelligence Community, 
appointed by the President with the advice and consent of the 
Senate, to review programs of the Intelligence Community and 
the relationships among the elements of it, and to report to 
the DNI and Congress. The President's veto message on the 
fiscal year 2008 bill asserted that the office is duplicative 
and unnecessary, stating that each component already has an 
Inspector General and that the existing IG for the ODNI has 
been vested with all legal powers of any DNI. In again 
reporting the IG provision as part of its proposed 2009 bill, 
the Committee reaffirmed its conviction in the importance of an 
independent, statutory Inspector General for the IC. The IG 
position created by the provision would not duplicate the 
existing ODNI position, which would be replaced by it. The 
provision has been carefully refined, in conjunction with the 
Senate Armed Services Committee, to avoid duplication or 
conflict with any IG in the Department of Defense. A statutory 
IG for the Intelligence Community is especially needed to 
address issues that run across the jurisdiction of individual 
IC elements and that cannot be fully addressed by Inspectors 
General for individual IC elements whose jurisdictions are 
bounded by the elements in which they serve.
     In recognition of the critical responsibilities of 
the Directors of the NSA, NRO, and the NGA, a requirement that 
their appointments by the President be confirmed by the Senate. 
In an effort to reach a compromise with the Executive Branch, 
the conference report on the 2008 bill limited this to the 
confirmation of the NSA and NRO Directors. In his veto message, 
the President nevertheless listed the provision among his 
objections, asserting that the provision would subject the 
filling of the positions to harmful delays and risk injecting 
political pressure into positions of technical expertise and 
public trust. After consideration of the President's objection, 
in reporting its fiscal year 2009 bill the Committee returned 
to its original view that all three positions should be subject 
to confirmation. Each official plays a critical role in the 
national intelligence mission and spending by their agencies 
comprises a significant portion of the entire intelligence 
budget. In addition, as the conference report on the 2008 bill 
states, the Committee is seeking that these positions be 
subject to confirmation because of the important role each 
plays. For NSA, that role includes ensuring that its 
intelligence collection is consistent with the protection of 
the civil liberties and privacy interests of U.S. persons; for 
NRO, it includes ensuring that the NRO appropriately manages 
its mission and the significant budget resources and mission 
entrusted to it. With respect to the specter of confirmation 
delays, the Committee has a record of expeditious, non-
political consideration of nominations to positions in the IC.
     An increase in the penalties for the disclosure of 
the identity of undercover intelligence officers and agents.
    The conference report on the fiscal year 2008 bill also 
included a provision, added during conference, to prohibit the 
use of any interrogation treatment or technique not authorized 
by the United States Army Field Manual on Human Intelligence 
Collector Operations (Army Field Manual) against any individual 
in the custody or effective control of any element of the 
Intelligence Community. While other provisions in the 2008 bill 
were also listed in the veto message, the President's objection 
to the Army Field Manual provision was the central objection in 
the veto message. By a vote of 9-6, the Committee included this 
provision in its fiscal year 2009 bill. The continuing dispute 
over the provision was a contributing factor to the bill not 
receiving floor consideration during the 110th Congress.
    Minority views submitted with the Committee's report on the 
2009 bill asserted that a better alternative to limiting 
interrogation techniques would be to prohibit the use of 
techniques that are explicitly banned by the Army Field Manual. 
S. Rep. No. 110-333, at 79 (2008).

   C. Implementing Recommendations of the 9/11 Commission Act of 2007

    The Intelligence Reform and Prevention Act of 2004, Pub. L. 
108-458, addressed many but not all recommendations in the 2004 
report of the National Commission on Terrorist Attacks Upon the 
United States. In the Implementing Recommendations of the 9/11 
Commission Act of 2007 (9/11 Act), Pub. L. 110-53, Congress 
enacted responses to a list of remaining unfulfilled 
recommendations of the 9/11 Commission. Title VI of the 9/11 
Act is entitled ``Congressional Oversight of Intelligence.'' 
The 9/11 Commission's report had stated: ``Of all our 
recommendations, strengthening congressional oversight may be 
among the most difficult and important.'' In addition to 
provisions that respond to specific recommendations of the 9/11 
Commission, Title VI contains other matters designed to augment 
oversight and accountability.
    In the Senate, primary responsibility for the 9/11 Act 
(most of which addressed homeland security matters such as 
incident response and transportation security) rested with the 
Committee on Homeland Security and Governmental Affairs. With 
regard to the IC matters addressed in Title VI, the Committee 
on Homeland Security and Governmental Affairs worked closely 
with this Committee, particularly in preparation for conference 
with the House.

1. Section 601: Declassification of the total amount appropriated for 
        national intelligence

    The 9/11 Commission had recommended that ``the overall 
amounts of money being appropriated for national intelligence 
and to its component agencies should no longer be kept 
secret.'' In support of the recommendation, the Commission had 
urged that ``when even aggregate categorical numbers remain 
hidden, it is hard to judge priorities and foster 
accountability.''
    The Senate had sought, in S. 2845 of the 108th Congress, 
its version of the Intelligence Reform and Terrorism Prevention 
Act of 2004, to implement the 9/11 Commission recommendation by 
requiring the declassification of the overall amounts 
requested, authorized, and appropriated for national 
intelligence. The Senate provision, however, was not included 
in the conference agreement on the 2004 Act. This Committee 
then sought legislation, as part of several annual intelligence 
authorization bills, to require the President to disclose the 
aggregate amount of funds requested for the National 
Intelligence Program in the annual budget submission for the 
program, the aggregate amount authorized, and the aggregate 
amount appropriated. The Committee's proposals also would have 
required the DNI to conduct a study on the advisability of 
disclosing the aggregate amounts requested, authorized, and 
appropriated for each of the 16 elements of the Intelligence 
Community. See S. Rep. No. 110-2, at 5 (2007) (report on FY 
2007 Authorization); S. Rep. No. 110-75, at 55 (2007) (report 
on FY 2008 Authorization). These proposals became part of the 
Senate's 9/11 bill.
    The conference agreement adopted the Senate provision with 
modifications. It required, in section 601 of the 9/11 Act, 
that the DNI disclose the aggregate amount of funds finally 
appropriated (but not the funds initially requested or 
authorized) for the National Intelligence Program within 30 
days of the end of the fiscal year. By limiting the disclosure 
to a single amount, the amount appropriated for the entire 
fiscal year-an amount that includes both regular and 
supplemental appropriations--and not requiring disclosure of 
amounts requested and authorized, the conference agreement 
sought to avoid public speculation about intelligence programs 
involved in differences between the President and Congress, or 
the Senate and House, in enacting appropriations. The 
conference agreement also deleted the study of further 
declassification down to the level of the total amounts for 
individual IC elements. Finally, the conference agreement 
limited mandatory declassification to fiscal years 2007 and 
2008. For fiscal years 2009 and after, the President may waive 
or postpone disclosure by submitting to the congressional 
intelligence committees, within 30 days of the end of a fiscal 
year, a statement in unclassified form that disclosure would 
damage national security and a further statement, which may be 
classified, detailing the reasons. These requirements are set 
forth in 50 U.S.C. 415c.
    On October 30, 2007, the DNI implemented the top line 
declassification provision of the 9/11 Act by disclosing that 
the aggregate amount appropriated to the National Intelligence 
Program for fiscal year 2007 was $43.5 billion. On October 28, 
2008, the DNI publicly announced that the aggregate amount 
appropriated for fiscal year 2008 was $47.5 billion.
    Section 346 of the Committee's proposed authorization for 
fiscal year 2009 (S. 2996; S. Rep. No. 110-333, at 19) would 
have made mandatory disclosure of the top line appropriated for 
that fiscal year and provided that the waiver authority in 
section 601 of the 9/11 Act not apply until fiscal year 2010. 
Whether to make disclosure for fiscal year 2009, and possibly 
subsequent years, not subject to waiver is a matter for 
consideration in the 111th Congress.

2. Sections 602 and 604: Public Interest Declassification Board

    As described in its report on the intelligence 
authorization act for fiscal year 2008, S. Rep. No. 110-75, at 
6-7, the Committee was impeded in obtaining the assistance of 
the Public Interest Declassification Board in reviewing several 
Executive Branch classification decisions regarding Committee 
reports on prewar intelligence about Iraq. The White House had 
interpreted the Board's authorizing legislation to require 
presidential approval for the Board to conduct a review at the 
request of Congress. The Committee recommended, in section 308 
of its proposed intelligence authorization bill for fiscal year 
2008, S. 1538, that the Board be authorized to conduct reviews 
upon receiving a congressional request, regardless of whether 
the review is requested by the President. The Committee also 
proposed that the life of the Board be extended for four years 
until the end of 2012.
    In section 602, the conference agreement on the 9/11 Act 
incorporated, with minor technical changes, the Senate proposal 
on the authority of the Public Interest Declassification Board 
to conduct reviews upon receiving a congressional request as 
well as the Senate proposal to extend the life of the Board. 
Section 604 of the 
9/11 Act provided for funding of the Board during fiscal year 
2007.
    During the 110th Congress, the Public Interest 
Declassification Board issued a comprehensive report, including 
recommendations, on declassification policies and programs 
within the federal government: Improving Declassification, A 
Report to the President from the Public Interest 
Declassification Board (December 2007). The report is posted on 
the National Archives website. While the main part of the 
report concerns declassification programs and policies in the 
Executive Branch, including matters that have been of concern 
to the Committee such as the treatment of the President's Daily 
Brief, the report also addresses the declassification of 
congressional records that contain classified information 
provided by the Executive Branch. As evidenced by the further 
extension of the life of the Board, the work and reports of the 
Public Interest Declassification Board are important to the 
congressional oversight of declassification programs and 
policies.

3. Section 603: Structure of congressional oversight

    The 9/11 Commission made several recommendations about 
congressional oversight.
    In 2004, the Senate acted on one of the Commission's 
oversight recommendations by eliminating, in S. Res. 445 of the 
108th Congress, the eight-year term limit provision on 
committee membership contained in the Committee's authorizing 
resolution, S. Res. 400 of the 94th Congress. The 9/11 
Commission urged that ``Members should serve indefinitely on 
the intelligence committees, without set terms, thereby letting 
them accumulate experience.''
    In 2004, the Senate also sought to address a 9/11 
Commission recommendation on the structure of oversight in the 
Senate by providing in S. Res. 445 for an intelligence 
subcommittee in the Committee on Appropriations. That 
subcommittee, however, has not been established. The Commission 
had reported in 2004 that it had considered and proposed two 
alternatives to the present oversight structure in the House 
and Senate: a joint committee modeled after the old Joint 
Committee on Atomic Energy and separate committees in each 
House that combine authorizing and appropriations powers.
    Section 603 of the 9/11 Act set forth a Sense of the Senate 
that the Committee on Homeland Security and Governmental 
Affairs and this Committee should review the recommendations of 
the 9/11 Commission on congressional oversight as well as other 
suggestions and submit to the Senate recommendations for 
carrying out reforms.
    On November 13, 2007, this Committee held a public hearing 
to receive testimony from members of the 9/11 Commission and 
others. On March 6, 2008, fourteen members of the Committee 
joined in a letter to the Senate leadership that the Senate 
should adopt one of two means of implementing oversight reform. 
One was to consolidate authorization and appropriations 
authority in this Committee, an approach taken by S. Res. 375 
in the 110th Congress. The other was to amend and implement the 
determination made by the Senate in S. Res. 445 of the 108th 
Congress to establish an intelligence subcommittee in the 
Committee on Appropriations.
    The Committee's letter to the Senate leadership (reprinted 
at 154 Cong. Rec. S. 8419 (daily ed., Sept. 11, 2008)) offers 
specific proposals to enhance coordination of intelligence 
authorization and appropriation responsibilities, such as 
placing on the appropriations subcommittee any Intelligence 
Committee member who is on the Appropriations Committee and 
making the Intelligence Committee Chairman and Vice Chairman ex 
officio members of the subcommittee if they are not already on 
it by virtue of Appropriations Committee membership. A 
resolution implementing these proposals, S. Res. 655, was 
submitted on September 11, 2008, and referred to the Committee 
on Rules and Administration.

4. Section 605: Public release of declassified executive summary of CIA 
        Inspector General 9/11 accountability report

    In its report for the 109th Congress, the Committee 
described its efforts to obtain public release of a 
declassified executive summary of a 2005 accountability report, 
with respect to the Agency's pre and post-9/11 activities, 
prepared by the CIA Inspector General in response to a 
recommendation of the 2002 House and Senate Joint Inquiry Into 
Intelligence Activities Before and After the Terrorist Attacks 
of September 11, 2001 (S. Rep. No. 110-57, at 24-26).
    In the 110th Congress, the Committee included a requirement 
for the declassification of the executive summary of that IG 
report in its authorization bill for fiscal year 2008 (S. 1538; 
S. Rep. No. 110-75, at 27). The proposed requirement was also 
included in the Senate version of the 9/11 Act, and became part 
of the conference agreement on that act.
    As enacted, Section 605 required that the CIA Director, not 
later than 30 days after the enactment of the 9/11 Act, prepare 
and publicly release the Executive Summary of the CIA Inspector 
General report ``declassified to the maximum extent possible, 
consistent with national security.'' Section 605 also required 
the Director to submit to Congress a classified annex 
explaining any redactions.
    The Director released a declassified executive summary on 
August 21, 2007. The summary and the Director's statement on 
its release may be found on the CIA's website.

       D. National Defense Authorization Act for Fiscal Year 2008

    During the 110th Congress, the defense authorization bill 
for fiscal year 2008 (S. 1547, the National Defense 
Authorization Act for Fiscal Year 2008) that had been reported 
by the Armed Services Committee was subsequently referred to 
this Committee. The Intelligence Committee's report, S. Rep. 
No. 110-25 (2007), addressed provisions on three matters: (1) 
protection of classified information in the proceedings of 
Combatant Status Review Tribunals; (2) IC responses to requests 
of the House and Senate Committees on the Armed Services; and 
(3) standards for disqualification from issuance of security 
clearances by the Defense Department. Of the three, the second 
and third matters appeared in some form in the final 
legislation.
    With respect to IC responses to requests of the 
congressional armed services committees, S. 1547 sought to 
establish rules on responses to requests by elements of the 
Intelligence Community for documents or information. As enacted 
in section 1079 of Pub. L. No. 110-181 (2008), the provision 
requires the DNI, the Director of the National Counterterrorism 
Center, and the head of any element of the Intelligence 
Community to make available, not later than 45 days after 
receiving a written request from the chairman or ranking member 
of the Senate or House Armed Services Committee, any existing 
intelligence assessment, report, estimate, or legal opinion 
that relates to a matter within the jurisdiction of the 
committee. It states that the DNI and other officials covered 
by the section shall provide these documents unless the 
President determines that the document or information shall not 
be provided because the President is asserting a constitutional 
privilege. Section 1079 became the subject of a presidential 
signing statement that it would be construed ``in a manner 
consistent with the constitutional authority of the 
President.''
    The Intelligence Committee's sequential report preceding 
final enactment stated that it shared with the Armed Services 
Committee the conviction that it is critically important that 
the Intelligence Community provide to Congress the documents it 
needs to perform its responsibilities. But, in the Intelligence 
Committee's view, if there is a need for legislation on any 
lack of timely response by the IC, the legislation should 
address the problem comprehensively. The Intelligence Committee 
opined that the Congress should not enact separate rules on 
access to IC documents by its various committees outside of the 
congressional intelligence committees.
    The other matter addressed by S. 1547 that was included 
(with changes) in the final legislation involved a proposed 
repeal of a Title 10 provision on security clearances that had 
been added in 2000. The underlying provision had disqualified 
from being granted security clearances any active duty member 
of the Armed Forces or officer or employee of the Department of 
Defense (DOD) or a DOD contractor who fell into one of four 
categories: (1) had been convicted and sentenced in any U.S. 
court to a prison term of more than one year; (2) is an 
unlawful user or is addicted to a controlled substance; (3) is 
mentally incompetent as determined by a mental health 
professional approved by the DOD; or (4) has been discharged 
from the Armed Forces under dishonorable conditions. 
Disqualification for conviction or dishonorable discharge could 
be waived by the Secretary of Defense or the Secretary of a 
military department. The DOD requested the provision be 
repealed because, in its view, it unduly limited its ability to 
manage its security clearance program and could create 
unwarranted hardships for individuals who have rehabilitated 
themselves as productive and trustworthy citizens.
    This Committee, by a vote of 10-5, opposed the Armed 
Services Committee proposal to repeal the Title 10 provision. 
Our report expressed the concern that blanket repeal could lead 
to unintended compromises or mishandling of national security 
information. S. Rep. No. 110-125, at 4. Members of the 
Committee who supported deferring to the views of the DOD and 
the Armed Services Committee filed additional views, noting 
that there is no comparable security clearance statute 
applicable to any other individual department or agency and 
that Congress recently had legislated in favor of the 
implementation of uniform and consistent policies throughout 
the Government. Id. at 6-7.
    Following the sequential report and discussions with this 
Committee, the Armed Services Committee produced a compromise 
that was enacted as section 1072 of Pub. L. No. 110-181, which 
adds section 3002 to the Intelligence Reform and Terrorism 
Prevention Act of 2004, 50 U.S.C. 435b. The compromise limited 
the absolute prohibition on security clearances, at any 
classification level, to officers or employees of any federal 
agency (not just the DOD) or of a federal agency contractor, or 
active duty military personnel, who are unlawful users of a 
controlled substance or addicts.
    For U.S. agency officers or employees, military, or 
contractor personnel who are incarcerated for not less than one 
year on the basis of a U.S. court conviction and sentence, 
dishonorably discharged, or determined in accordance with 
approved adjudicative guidelines to be mentally incompetent, 
the compromise provides, subject to waiver, for 
disqualification from a limited set of security clearances, 
namely, special access programs or sensitive compartmented 
information, rather than for all security clearances.

                E. Inspector General Reform Act of 2008

    Within the Senate, the Inspector General Reform Act of 2008 
was introduced by Senator McCaskill and reported by the 
Committee on Homeland Security and Governmental Affairs. It was 
signed into law on October 14, 2008 as Pub. L. 110-409. The 
Committee on Homeland Security and Governmental Affairs 
consulted with this Committee on provisions involving 
Inspectors General (IGs) within the Intelligence Community.
    The Act contains measures to strengthen the independence of 
IGs throughout the Government. While various provisions do not 
relate to the Intelligence Community (although they might serve 
as a model for subsequent IC legislation), the Act's provisions 
on compensation and the establishment of a Government-wide 
council of IGs apply to particular IC IGs.
    As reported to the Senate, section 4 increased the 
compensation of statutory IGs to Executive Level 3 plus 3 
percent and section 5 prohibited cash awards or bonuses to 
those IGs. The Homeland Security Committee report explained the 
importance of these related provisions. The compensation of 
some IGs had depended on the award of bonuses by officials that 
they oversee. While the report noted that presidentially-
appointed IGs had generally agreed to forego them, bonuses have 
been an important part of the pay structure for IGs. S. Rep. 
No. 110-262, at 4 (2008). The Act balances the prohibition 
against bonuses with an improvement in compensation, 
establishing the pay level of IGs at Executive Level 3 plus 3 
percent. However, as the Act neared passage, these two 
compensation reforms had not been applied to the CIA IG. With 
the full support of this Committee, the bill was amended to 
apply these important pay provisions to the CIA IG.
    Section 11 of the Act establishes a Council of the 
Inspectors General on Integrity and Efficiency to address 
matters of integrity, economy, and effectiveness that transcend 
individual government agencies. Section 11 makes the DNI IG and 
the CIA IG statutory members of the Council. One function of 
the Council is to develop plans for coordinated, government-
wide activities that include interagency and inter-entity 
audits, inspections, and evaluations. The Act creates, within 
the Council, an Integrity Committee which shall investigate 
allegations of wrongdoing against an Inspector General or a 
staff member of an IG Office.

F. Administration Views on Bills Referred to the Intelligence Committee

    Rule 12.2 of the Committee's Rules of Procedure provides 
that ``Unless otherwise ordered by them, measures referred to 
the Committee shall be referred by the Chairman and Vice 
Chairman to the appropriate department or agency of the 
Government for reports thereon.'' Pursuant to this rule, during 
the 110th Congress the Chairman and Vice Chairman made two 
referrals for comments.

1. GAO Participation in Intelligence Community audits and evaluations

    On January 30, 2007, the Chairman and Vice Chairman 
referred to the DNI and the Comptroller General for comment S. 
82, a bill referred to the Committee entitled the Intelligence 
Community Audit Act of 2007. S. 82, which had been introduced 
by Senator Akaka, would ``reaffirm'' the authority of the 
Comptroller General to perform audits and evaluations of the 
financial transactions, programs, and activities of the 
Intelligence Community. The bill proposed a number of 
limitations on this authority including that the Comptroller 
General may conduct an audit or evaluation of intelligence 
sources or methods, or covert actions, only on the request of 
one of the congressional intelligence committees or the House 
or Senate majority or minority leader.
    On March 7, 2007, the DNI responded to the Chairman and 
Vice Chairman. The DNI stated that the approach of his office 
has been to provide the General Accountability Office (GAO) 
with appropriate assistance while protecting sources and 
methods, and that the ODNI has occasionally sought the views of 
GAO on appropriations matters and review of GAO reports. 
However, ``[p]ursuant to obligations to protect intelligence 
sources and methods, the IC has traditionally declined to 
participate in GAO inquiries that evaluate intelligence 
activities, programs, capabilities, and operations.'' The DNI 
also expressed concern about the effect that GAO activities 
could have on ``the existing relationship--based on comity and 
mutual understanding--that has developed between the IC and the 
Oversight Committees.'' A particular concern identified by the 
DNI is that the Comptroller General might seek to carry out 
work in the Intelligence Community beyond work directed by the 
Congress or to do so at the request of committees that do not 
have jurisdiction over IC activities. Overall, the DNI objected 
that ``S. 82 has no provision for curbing such requests or 
recourse for the IC in addressing the predictable drain on 
resources.'' Consequently, ``S. 82 would have an impact on the 
ability of the Intelligence Community to respond to 
[Intelligence] Committee requests in a timely manner.''
    In a letter dated March 1, 2007, the Comptroller General 
expressed GAO's support for the bill. He stated that with 
limited exceptions existing law provides GAO with ``clear audit 
and access authority with respect to elements of the 
Intelligence Community,'' but noted that the Department of 
Justice has questioned GAO's authority. The letter described 
the GAO's understanding of the history of the GAO's interaction 
with the Intelligence Community. It cited the need, as 
identified in various reports following 9/11, for ``major 
business transformation'' in the Intelligence Community as one 
area in which GAO could be of assistance to the Intelligence 
Community. Subsequently, in testimony before the Committee on 
Homeland Security and Governmental Affairs (HSGAC) on February 
29, 2008, the Comptroller General expanded on his support for 
S. 82. His full written testimony, under the heading of 
``Intelligence Reform: GAO Can Assist the Congress and the 
Intelligence Community on Management Reform Initiatives,'' is 
posted on the websites of both HSGAC (with other testimony from 
the hearing) and the GAO. Neither this Committee nor the full 
Senate took any further action on S. 82.

2. Detention and interrogation

    On August 7, 2008, the Chairman and Vice Chairman referred 
to the Director of National Intelligence for comment three 
bills on detention and interrogation: S. 3386, introduced by 
the Vice Chairman; S. 3437, introduced by Senator Feinstein, 
and cosponsored by the Chairman; and S. 1943, introduced by 
Senator Kennedy. S. 3386 and S. 3437 had been referred to the 
Intelligence Committee. S. 1943 had been referred to the 
Judiciary Committee.
    S. 3386, entitled the ``Limitations on Interrogation 
Techniques Act of 2008,'' would bar subjecting anyone in the 
custody or under the control of an IC element to any of a list 
of interrogation techniques taken (with two modifications) from 
prohibitions in the Army Field Manual. S. 3437, entitled 
``Restoring America's Integrity Act,'' would bar any person in 
the custody or under the control of an IC element from being 
subjected to a treatment or technique of interrogation not 
authorized by the Army Field Manual. It would require notice, 
in a manner consistent with the practices of the U.S. Armed 
Forces, to the International Committee of the Red Cross of an 
IC detention. It would bar CIA interrogations by contractors, 
requiring that all CIA interrogations be conducted by Agency 
employees. S. 1943 would bar interrogation by any U.S. 
Government agency that is not authorized by the Army Field 
Manual and prohibit in statute the list of techniques taken 
from the prohibitions in the Army Field Manual.
    On October 3, 2008, the DNI replied. The DNI wrote that 
``[a]s a general matter, we do not believe that further 
legislation in this area is necessary.'' He asserted that the 
Detainee Treatment Act of 2005 and the Military Commissions Act 
of 2006 had been ``drafted and passed by Congress to allow the 
Central Intelligence Agency (CIA) to continue a program for 
interrogation of high-level terrorist leaders or facilitators 
separate from the Department of Defense interrogation 
programs.''
    With respect to the future of the program, the DNI stated: 
``Although the Administration does not believe that additional 
legislation is necessary at this time, we are open to 
discussing with the Committee the guidelines and restrictions 
applicable to the program as a matter of both law and policy. 
With respect to the proposal to require notice and access to 
the International Committee of the Red Cross (ICRC) regarding 
detainees who may be held by the CIA, the Department of State 
has facilitated constructive discussions between the CIA and 
the ICRC on these issues. We believe these discussions have 
been constructive and will keep the Committee fully informed of 
the progress of this dialogue.''

            G. Committee Views on LAw of the Sea Convention

    In September 2007, Chairman Rockefeller and Vice Chairman 
Bond wrote to the Chairman and Ranking Member of the Committee 
on Foreign Relations in connection with that Committee's 
consideration of the Law of the Sea Convention. The purpose of 
the letter was to provide their assessment, based on a closed 
Intelligence Committee hearing in 2004 and the reconfirmation 
in 2007 by the Secretary of State, Secretary of Defense, and 
DNI of views that had been expressed to the Intelligence 
Committee by their predecessors, on whether the Law of the Sea 
Convention would have an adverse impact on U.S. intelligence 
activities.
    Senators Rockefeller and Bond concluded: ``the Law of the 
Sea Convention neither regulates intelligence activities nor 
subjects them to settlement procedures under the Convention. It 
is therefore our judgment that accession to the Convention will 
not adversely affect U.S. intelligence collection or other 
intelligence activities.'' S. Hrg. 110-592, at 49-50 (2007) 
(hearing record of Committee on Foreign Relation reprinting 
Rockefeller-Bond letter). Their letter appended a letter from 
the DNI that declassified closed session testimony by the 
Director of Naval Intelligence before the Intelligence 
Committee in 2004 that the Convention would not prohibit U.S. 
maritime intelligence activities. Id. at 50.

         H. Amendment of Senate Resolution 400 (94th Congress)

    On January 30, 2007, the Committee unanimously reported an 
original resolution, S. Res. 50, with an accompanying report, 
S. Rep. No. 110-3, to amend the basic charter of the Committee, 
S. Res. 400 of the 94th Congress (1976), in order to formally 
align the jurisdiction of the Committee with changes made to 
the structure of the Intelligence Community by the Intelligence 
Reform and Terrorism Prevention Act of 2004. The resolution, 
which the Senate agreed to on February 14, 2007, also made 
several technical changes to S. Res. 400, all of which are 
described in the Committee report.
    The debate in 1976 on establishment of the Intelligence 
Committee, which was resolved by adoption of S. Res. 400, 
centered in large part on the allocation of jurisdiction 
between the new committee and existing committees that had 
exercised jurisdiction over elements of the Intelligence 
Community. The Intelligence Committee was assigned jurisdiction 
over the CIA and the Director of Central Intelligence. It was 
also assigned jurisdiction over the intelligence activities of 
all other departments and agencies, such as the NSA. In a 
special provision on sequential referrals, however, S. Res. 400 
recognized the continuing legislative interest of other Senate 
committees in IC elements that are within departments that are 
generally within the jurisdiction of those committees. By its 
express language, the special sequential referral provision in 
S. Res. 400 did not apply to matters pertaining to either the 
CIA or the Director of Central Intelligence.
    S. Res. 50 amended S. Res. 400 to apply these 
jurisdictional principles to the ODNI and the DNI. As amended, 
S. Res. 400 places matters concerning the ODNI, the DNI, the 
CIA, and the Director of the CIA, within the core jurisdiction 
of the Intelligence Community and not subject to the authority 
of other committees to invoke the special sequential referral 
provisions of S. Res. 400. Nevertheless, as the Committee 
advised the Senate (S. Rep. No. 110-3, at 3), the amendment 
does not alter the provision of S. Res. 400 which ensures that 
nothing in S. Res. 400 shall be construed to effect the 
authority of any committee to study or review an intelligence 
activity that ``directly affects'' a matter otherwise within 
that committee's jurisdiction.
    S. Res. 400, as amended, is printed in the most recent 
publication of the Committee's Rules of Procedures, S. Prt. 
110-22, at 11-17, and is available on the Committee's Web site.

                       III. OVERSIGHT ACTIVITIES


                  A. Annual Worldwide Threat Hearings

    It is the Committee's long-standing practice to begin each 
session of the Congress with a hearing to review the 
Intelligence Community's assessment of the current and 
projected national security threats to the United States. The 
hearings in the 110th Congress covered a wide range of issues. 
The hearings provided the heads of various all-source analytic 
agencies an opportunity to inform the Committee and the 
American public about the threats facing the country and about 
the abilities of their organizations to provide information and 
analysis about such threats, as well as, in the case of some 
agencies, the capabilities within their organizations to 
counter such threats.
    On January 11, 2007, the Committee held an open and closed 
hearing on the current and projected threats to the United 
States. Testifying before the Committee were John D. 
Negroponte, DNI; General Michael V. Hayden, Director of the 
CIA; Lieutenant General Michael Maples, Director of the DIA; 
Robert S. Mueller, Director of the FBI; and Randall Fort, 
Assistant Secretary of State for Intelligence and Research. 
Their unclassified prepared statements for the record are 
available in the Hearings section of the Committee's Web site.
    Director Negroponte stated ``The Nation requires more from 
our Intelligence Community than ever before because America 
confronts a greater diversity of threats and challenges than 
ever before.'' He addressed in his opening remarks only a few 
of those challenges and threats, focusing on: the threats posed 
by international terrorist organizations, especially al-Qa'ida 
but also including Hizbollah; the challenges confronting Iraq 
and Afghanistan in forging national institutions; the actions 
of Iran and North Korea to develop or acquire weapons of mass 
destruction; Iran's influence in the Middle East; ``turmoil in 
Africa;'' ``democratization in Latin America;'' China's 
modernization; and ``energy security and the foreign policy 
benefits which high prices offer states that are hostile to 
United States interests.''
    On February 5, 2008, the Committee held an open and closed 
hearing on the current and projected threats to the United 
States. This was the first worldwide threat hearing since the 
confirmation of the new Director of National Intelligence and 
Director J. Michael McConnell presented a consolidated 
statement (with a classified version submitted for the record) 
on behalf of the Intelligence Community. Director McConnell was 
accompanied by General Michael V. Hayden, Director of the CIA; 
Lieutenant General Maples, Director of the DIA; Robert S. 
Mueller, Director of the FBI; and Randall Fort, Assistant 
Secretary of State for Intelligence and Research. Director 
McConnell's unclassified statement for the record is available 
in the Hearings section of the Committee's Web site.
    Director McConnell focused his oral testimony on the 
continuing ``preeminent terror threat'' of al-Qa'ida; ongoing 
efforts of nation states and terrorists to develop and acquire 
dangerous weapons and delivery systems; the evolving threat of 
cyber attack; conditions in Iraq, Afghanistan, the Middle East 
and Africa; Russian and Chinese military modernization; and the 
effect of high oil prices, especially for Venezuela and Cuba.

                            B. Study Groups

    During the 110th Congress, the Committee initiated five 
study groups and continued a sixth that had begun during the 
previous Congress. These study groups were each composed of 
four to seven professional staff members from different career 
backgrounds and with different committee responsibilities. The 
subjects were chosen in response to Members' determination that 
the Committee should conduct proactive, in-depth analysis and 
research into areas of increasing relevance to its intelligence 
authorization and oversight responsibilities. Staff 
participants received briefings from and undertook extensive 
interviews of intelligence officials at headquarters and in the 
field, and examined relevant documents. They prepared written 
records of these meetings and briefed Members on their findings 
and recommendations. They also arranged for hearings, which 
offered opportunities for Members to explore the subjects of 
study directly with IC officials, both to evaluate the 
effectiveness of intelligence agency activities under the new 
IC structure established by the Intelligence Reform and 
Terrorist Prevention Act, and to direct legislative remedies as 
needed.

1. Iran intelligence collection and analysis

    The Committee continued and expanded the review of 
intelligence on Iran that it began in 2005. The study group 
mapped the U.S. Intelligence Community's collection efforts 
worldwide, visiting sites in the United States and abroad, and 
studied key analytical products on Iran. The study group 
provided a briefing to Members in March 2007.
    In addition to reporting to Members on the substance of the 
2005 National Intelligence Estimates (NIEs) on Iran, the study 
group identified possible methodological problems, which it 
attempted to explore further with the Intelligence Community 
prior to the publication of new Iran NIEs, then under 
preparation. Unfortunately, IC delays in providing responses to 
questions for the record and requested documents relating to 
the 2005 estimates prevented those efforts from reaching 
fruition. A decision by the DNI to refuse study group access to 
key intelligence source documents for the 2007 Iran NIE 
prevented the type of rigorous review of the estimate the 
Committee had anticipated. The study group nonetheless 
continued to monitor closely other intelligence produced on 
Iran, receiving frequent briefings from intelligence agency 
elements on a variety of subjects, but particularly on Iran's 
nuclear program and support for terrorism. The study group 
prepared or supported eight hearings held by the Committee on 
Iran during the period of this activity report.

2. Terrorist safehavens

    The Committee established the Terrorist Safehavens Study 
Group to examine the Intelligence Community's intelligence 
posture toward and understanding of those regions that were 
serving or would be likely to serve as safehavens for terrorist 
activity. The scope of effort included not only the areas of 
most acute current concern, like Pakistan's Federally 
Administered Tribal Areas, but also other areas where weak 
governmental controls and other factors could foster future 
safehavens. Study group members were briefed by the National 
Counterterrorism Center and other IC elements and by the State 
Department's Coordinator for Counterterrorism on the 
Government's analytic frameworks and knowledge management 
systems for assessing safehavens and on the effectiveness of 
counterterrorist operations in these regions. The work of the 
study group contributed to two hearings in 2007 and led to five 
recommendations for Committee Members on ways to enhance the 
effectiveness of intelligence support for counterterrorism 
efforts.

3. Clandestine human source intelligence (HUMINT)

    The reorganization of the Intelligence Community under the 
2004 Intelligence Reform and Terrorism Prevention Act has had a 
significant effect on the HUMINT function--particularly 
regarding the interface between activities of the Department of 
Defense, CIA, and FBI. The HUMINT Study Group was established 
in 2007 to examine the dynamic transition underway and to make 
recommendations to improve effectiveness in the conduct of 
HUMINT. The study group held numerous in-depth discussions with 
IC leaders and senior officials involved in HUMINT management. 
It met with the principal HUMINT specialists and intelligence 
directors of the Combatant Commands and the Military Services, 
intelligence and operations officers from the U.S. Special 
Operations Command, and the unconventional warfare expert of 
the U.S. Army Special Forces Command, as well as officials of 
the FBI and CIA. The study group also conducted numerous 
interviews with case officers. It contributed to preparations 
for 15 closed hearings that related to HUMINT during the period 
of this report.
    As a result of the HUMINT Study Group's efforts, nine 
Congressionally Directed Actions were incorporated into the 
Committee's report accompanying the Fiscal Year 2009 
Intelligence Authorization bill. The Intelligence Community has 
initiated a number of organizational and policy changes 
consistent with these recommendations.

4. Terrorist ideology

    Early in the 110th Congress, the Committee established a 
study group on terrorist ideology, with the goals of mapping 
the IC's contribution to understanding the ideological 
component of conflict, as well as the media methods our 
opponents use to support their efforts. The group used the 
oversight tools available to the Committee to understand where 
research and analysis was being conducted on the question of 
counter-ideology, and how this knowledge was being provided to 
policymakers throughout the Government.
    The Committee encouraged the study group to expand the 
scope of the review and include an assessment of the entire 
U.S. Government's efforts on what would eventually become 
recognized as ``strategic communications.'' In particular, the 
study group sought to understand how IC research and analysis 
contributed to U.S. diplomatic efforts--especially in 
determining where there is connectivity and where disconnects 
exist. Elements within the Departments of Defense and State 
shared their progress on questions of ideological engagement 
throughout the world. The study group also was able to 
interview numerous former government officials, as well as 
representatives of other non-governmental organizations, who 
drew on vast and relevant experience.
    The study group prepared three hearings for the Committee 
during the reporting period, including a June 12, 2007, open 
hearing on ``Terrorism Ideology,'' S. Hrg. 110-348 (2007), 
addressing global ideology, regional differences, and the role 
of ideology in Iraq.

 5. China

    The Committee directed the China Study Group to examine the 
DNI's China strategy and to focus on two large issue areas: (1) 
intelligence collection and analysis posture, resource 
allocation, and gaps; and (2) China's counterintelligence and 
espionage threats to the United States. By the end of the 
reporting period, the study group had conducted a thorough 
review of the existing capabilities and activities of the 
Intelligence Community with respect to China. The study group 
received numerous briefings from intelligence agency 
representatives and conducted two field visits to China. The 
study group prepared one closed hearing for the Committee 
during this period.

 6. Cyber security

    The many dramatic benefits of the Internet have been 
accompanied by what the Committee views as a serious threat--
the danger of computer network (``cyber'') attack, cyber 
espionage, and cyber crime against U.S. interests by amateur 
programmers, criminal organizations, and sophisticated nation-
state adversaries--to our national security including economic 
security. The Committee created a new cyber security study 
group, consisting of seven Committee staff members with 
expertise in national security law, technology, foreign policy, 
military affairs, and counterintelligence, to investigate in 
further detail the wide range of U.S. Government cyber-related 
challenges and to prepare recommendations for future Committee 
action. The study group began working with departments and 
agencies across the Executive branch, other Congressional 
committees, and private sector leaders to broaden the 
Committee's understanding of cyber issues.
    The Committee held two closed hearings and numerous 
briefings examining the cyber threat and the IC's response to 
it. The first hearing on the cyber threat was held in 2007; a 
second was held in 2008. In parallel with the hearings, the 
Committee's Technical Advisory Group was asked to study 
technology and policy aspects of cyber security and to report 
its findings and actionable recommendations on priorities for 
Congress. The Committee's second hearing on Cyber Security 
explored the President's new Comprehensive National Cyber 
Security Initiative, initiated in January 2008, focused on 
improving the security of U.S. federal government computer 
networks. The Committee's annex to its fiscal year 2009 
intelligence authorization bill formally requested documents 
detailing the legal foundations and privacy implications of the 
Comprehensive National Cyber Security Initiative.

                          C. Committee Reviews


1. Inquiry into the prewar intelligence assessments on Iraq

    In June 2003, the Committee began a formal review of U.S. 
intelligence related to the existence of Iraq's weapons of mass 
destruction programs, Iraq's ties to terrorist groups, Saddam 
Hussein's threat to stability and security in the region, and 
his violations of human rights including the actual use of 
weapons of mass destruction against his own people.
    In February 2004, the Committee announced a second phase 
(Phase II) of its Iraq review that included prewar intelligence 
about postwar Iraq, whether prewar public statements were 
substantiated by intelligence information, the Intelligence 
Community's use of information provided by the Iraqi National 
Congress, and intelligence activities within the Office of the 
Under Secretary of Defense for Policy.
    On September 8, 2006, the Committee submitted to the Senate 
redacted unclassified reports on two Phase II matters: (1) 
Postwar Findings About Iraq's WMD Programs and Links to 
Terrorism and How They Compare with Prewar Assessments, S. Rep. 
No. 109-331 (Accuracy Report); and (2) The Use by the 
Intelligence Community of Information Provided by the Iraqi 
National Congress, S. Rep. No. 109-330 (INC Report).
    On May 8, 2007, the Committee filed with the Senate the 
redacted unclassified report entitled ``Prewar Intelligence 
Assessments About Postwar Iraq,'' S. Rep. No. 110-76 (Prewar/
Postwar Report). Two sets of additional views to the report 
were filed. One set was filed by Chairman Rockefeller and 
Senators Wyden, Bayh, and Whitehouse. Another was filed by 
Senator Feinstein. Three sets of minority views were filed: (1) 
by Vice Chairman Bond and Senators Warner, Hatch, and Burr; (2) 
by Vice Chairman Bond and Senators Hatch and Burr; and (3) by 
Senators Chambliss, Hatch, and Burr. These views, and the 
amendments offered by Vice Chairman Bond to the report and 
conclusions, are described in the report.
    On June 5, 2008, the Committee filed with the Senate two 
additional redacted unclassified reports on Phase II matters: 
(1) Whether Public Statements Regarding Iraq by U.S. Government 
Officials were Substantiated by Intelligence Information, S. 
Rep. No. 110-345 (Public Statements Report); and (2) 
Intelligence Activities Relating to Iraq conducted by the 
Policy Counterterrorism Evaluation Group and the Office of 
Special Plans within the Office of the Under Secretary of 
Defense for Policy, S. Rep. No. 110-346 (Rome Report).
    Chairman Rockefeller, Vice Chairman Bond, and Senators 
Feinstein, Warner, Hagel, Chambliss, Hatch, Feingold, Snowe and 
Burr all filed additional or minority views with the Public 
Statements report. Vice Chairman Bond and Senators Hatch, 
Chambliss, and Burr filed minority views with the Rome report. 
Those views, along with the amendments to both reports filed by 
the Vice Chairman on behalf of the Minority, are printed in the 
reports themselves, and all are available on the Committee's 
Web site.
    Redacted copies of these reports are available on the 
Committee's website. Unredacted classified copies of the 
reports are available to all Members of the Senate for reading 
at the Committee.

 2. Electronic surveillance

            a. President's surveillance program
    As described in Section II of this report, consideration of 
measures to modernize the FISA and to address lawsuits brought 
against private carriers for alleged participation in the 
presidential electronic surveillance program that came to be 
known as the Terrorist Surveillance Program was a major focus 
of the Committee during the 110th Congress. Prior to the 
disclosures of December 2005, and the President's subsequent 
acknowledgment that he had authorized a program outside of the 
FISA, information concerning the program had been limited by 
the Executive branch to very few members of Congress--the 
leadership of the Senate, the House of Representatives, and the 
congressional intelligence committees plus senior members of 
the Defense Appropriations Subcommittee and a few other members 
of the congressional leadership.
    During the 109th Congress, the Chairman and Vice Chairman 
of the Committee sought to have access to the program expanded 
to all of the Members of the Committee. In March 2006, the 
Committee reached an agreement with the Executive branch to 
establish an ad hoc subcommittee of seven Members, including 
the Chairman and Vice Chairman, to oversee the program. In May 
2006, the restriction was further modified and all members of 
the Committee, and three members of the staff, were given 
access to information about the NSA program.
    At the beginning of the 110th Congress, restrictions on 
access to the program were further modified to allow a larger 
number of staff to have access to information about the 
program. In tandem with the effort to determine whether 
legislation was needed to amend FISA, the Committee conducted a 
series of classified hearings, briefings, and interviews to 
understand the historical context of the program and the 
sources and methods that were involved.
    As described in the report (S. Rep. No. 110-209) to 
accompany the Committee's legislation to amend FISA, under the 
President's surveillance program, beginning soon after 
September 11, 2001, the Executive branch provided written 
requests or directives to U.S. electronic communications 
service providers at regular intervals. The activities of the 
National Security Agency under the program were reauthorized by 
the President on a periodic basis through January 2007. The 
Committee reviewed all of the relevant correspondence from the 
Executive branch to the providers that participated in the 
program, as well as each of the presidential authorizations and 
accompanying documents.
    Over time, the program was modified to reflect new 
contingencies. These modifications, and the resulting documents 
arising from the modifications, were examined by the Committee. 
Throughout the duration of the program, attorneys from the 
Office of Legal Counsel generated legal opinions on the 
program. The Committee reviewed these opinions and discussed 
their development with relevant attorneys.
    The Committee's effort to secure information pertaining to 
the program was more difficult than it should have been. The 
Committee repeatedly requested to see the text of the 
presidential authorizations for intelligence collection outside 
of FISA and the legal opinions of the Department of Justice 
that supported the authorizations. Although the Committee had 
been learning about the substance of these documents from 
witnesses who appeared before the Committee in 2006 and 2007, 
the Committee only gained access to the actual texts for the 
first time on October 9, 2007, and for a limited period of time 
afterward, but was not allowed to retain copies of the 
opinions.
            b. Transition to FISC orders in 2007
    As described earlier in this report, Attorney General 
Gonzales wrote to the Senate and House Judiciary and 
Intelligence Committees in January 2007 that a judge of the 
FISC had issued orders authorizing the Government to target for 
collection international communications into or out of the 
United States where there was probable cause to believe that 
one of the parties to the communication is a member of al Qaeda 
or a related terrorist organization.
    The Committee received access to the FISC orders and the 
supporting documentation, including the memoranda filed by the 
Department of Justice in support of its application. The 
Committee also examined the subsequent ruling of a second FISC 
judge, and related documents, concerning renewal of the January 
2007 orders, as described earlier in the report. The Committee 
received extensive briefings from the DNI and others on the 
impact of that ruling in light of the terrorist threat 
environment.
            c. Oversight of implementation of the Protect America Act 
                    of 2007
    After enactment of the Protect America Act of 2007 on 
August 5, 2007, the Committee immediately began to review the 
Act's implementation. This review included a Committee hearing, 
on-site briefings at the NSA, and briefings from the Department 
of Justice attorneys responsible for compliance reviews during 
the duration of the PAA.
    The Committee was provided the certifications issued under 
the PAA by the Attorney General and DNI, and supporting 
documents. The Committee also examined documents related to 
judicial review of the PAA.
            d. Oversight of implementation of the FISA Amendments Act 
                    of 2008
    The Committee continues to examine issues related to 
electronic surveillance, FISA, and the President's surveillance 
program. With respect to implementation of the authorities 
under the FISA Amendments Act of 2008 for targeting certain 
persons outside the United States other than United States 
persons, the Committee has reviewed with Department of Justice 
officials the Attorney General guidelines issued under section 
702(f) to ensure compliance with limitations to prevent reverse 
targeting and targeting of purely domestic communications. The 
Committee is also reviewing opinions of the FISC, and related 
documents, pertaining to the implementation of the FAA.
    The Committee has received extensive briefings from the 
National Security Division of the Department of Justice and the 
NSA with respect to the conduct of electronic surveillance 
under FISA. These briefings, and access to the relevant court 
documents, have greatly assisted the Committee in its oversight 
responsibilities.
    Title III of the FAA, as described earlier in this report, 
provides for a comprehensive review of the President's 
surveillance program by the IGs whose departments or IC 
elements participated, within each IG's oversight authority and 
responsibility. The Committee has received the interim report 
required under the FAA and has reviewed it with the relevant IG 
offices. The Committee originally received the report in 
classified form. Following our request, the Committee also 
received an unclassified form of the interim report in November 
2008. A final report of the IGs in unclassified form, which may 
include a classified annex, is to be submitted to the House and 
Senate intelligence and judiciary committees within a year of 
the enactment of the Act (July 10, 2009). The Committee is 
monitoring the work of the IGs and the cooperation of the 
relevant components of the Executive branch.
            e. Allegation of improper intelligence activities at Fort 
                    Gordon, Georgia
    In early October 2008, a series of press reports raised 
allegations from former U.S. military reserve personnel 
regarding the improper collection of communications at an NSA 
facility located at Fort Gordon, Georgia. The press articles 
stated the former U.S. military reserve personnel had alleged 
that the conversations of U.S. personnel in Iraq, as well as 
those of U.S. aid workers and journalists, were listened to as 
part of their unit's support to the war on terrorism. In 
response to these reports, the Committee Chairman issued an 
October 9, 2008, press release stating the allegations were 
extremely disturbing and the Committee was examining the 
matter. Since that date the Committee staff has held three 
meetings with the appropriate DOD and NSA personnel, and 
reviewed the inquiries related to these allegations already 
conducted by those entities.
    The Committee also has been advised that in response to the 
new information contained in the current press reporting, 
current investigations are being undertaken by the IGs of the 
NSA and the U.S. Army Intelligence and Security Command. In 
addition, the DNI has tasked his Civil Liberties Protection 
Officer to review the investigations of these allegations to 
determine if there is a need for improvements to the IC's 
handling of U.S. person information. Upon receipt of the final 
reports of investigation from the IGs and the findings of the 
Civil Liberties Protection Officer, the Committee will take the 
appropriate action to ensure the suggested corrective actions 
are implemented.

3. Iraq

    The Committee held frequent hearings on Iraq with the 
purpose of overseeing the Intelligence Community's ability to 
collect intelligence and provide assessments to policymakers. 
Hearings provided Senators with intelligence assessments about 
the situation and trends in Iraq and in other nations in the 
region that affect Iraqi security and stability. In addition, 
the hearings provided information on the Intelligence 
Community's collection posture, and the Intelligence 
Community's plans to support decision makers as the conflict 
and U.S. presence in Iraq changes.
    In addition to hearings, the Committee received regular 
briefings and reports from the National Intelligence Council, 
Central Intelligence Agency, elements of the Department of 
Defense, Department of State, and nongovernmental 
organizations. The Committee provided intelligence assessments 
and briefings to support travel to Iraq by members of the 
Committee and other Senators. These activities supported 
intelligence oversight activities and helped to inform the 
legislative debate over the appropriate U.S. policy for Iraq.

4. Information security in the intelligence community

    Although the Committee's examination of the cyber threat to 
the United States includes all U.S. interests, the Committee is 
concerned in particular about potential threats to IC 
information systems. The Committee's Fiscal Year 2009 
Intelligence Authorization bill sought improved accountability 
for IC information security. The Committee requested that the 
DNI provide a report that sets forth the specific roles and 
responsibilities for IC information security under relevant 
legislation, executive orders, and current practices, and 
discuss how accountability for IC information security could be 
improved.
    Also, the Committee requested a joint assessment by the DNI 
and the Secretary of Homeland Security on how cyber threat 
intelligence information, including classified information, is 
shared with the U.S. critical infrastructure leadership. This 
assessment should combine the best threat information from the 
Intelligence Community and the best vulnerability information 
from the Department of Homeland Security to examine the cyber 
threat to U.S. critical infrastructure.

5. Research and development

    In early 2008, the Committee's Technical Advisory Group 
(TAG) conducted a review of research and development spending 
in the Intelligence Community. The TAG found that, while the 
Intelligence Community had in the past been in the forefront of 
significant scientific breakthroughs, the Intelligence 
Community for the past two decades has been trailing the 
private sector in advances in computer and other information 
technologies. The Committee and the TAG concluded that the 
Intelligence Community must regain its capabilities in advanced 
research and development to develop new sensors, analytical 
enablers, knowledge management tools, and other capabilities to 
provide our nation's policymakers and warfighters with an 
information advantage.
    To that end, in the Fiscal Year 2008 and Fiscal Year 2009 
Intelligence Authorization bills the Committee strongly 
supported the new Intelligence Advanced Research Projects 
Activity (IARPA), a dedicated, community-wide research activity 
freed from the pressures of an intelligence operational 
mission, founded to take great scientific risks and reap great 
technological rewards for the Intelligence Community. Wishing 
to ensure that the IARPA has the appropriate authorities and 
stature to be effective in fulfilling its unique mission, the 
Committee requested that the DNI evaluate IARPA's location in 
the ODNI organization and consider delegation of personnel, 
contracting, and other authorities to improve the effectiveness 
of IARPA.
    Additionally, the Committee recommended significant changes 
to the fiscal year 2009 budget request to increase research and 
development spending in the Intelligence Community to four 
percent of its total budget. Further, the Committee stated its 
intention to recommend further growth in research and 
development spending in future authorization bills to 
approximately five percent of the total IC budget and to keep 
this funding stable in the out years to ensure the United 
States will be able to develop the next sensor or system that 
will help prevent the next attack or strategic surprise.

6. The ODNI and revision of E.O. 12333

    The Committee continued its oversight of the ODNI 
throughout the 110th Congress. The position of the DNI was 
established by the Intelligence Reform and Terrorism Prevention 
Act of 2004, and was given a variety of statutory authorities 
and responsibilities. The ODNI includes a management staff 
which assists the Director in coordinating the resources and 
activities of the various intelligence agencies. It also 
includes several functional organizations, including the 
National Counterterrorism Center, the National 
Counterproliferation Center, the National Counterintelligence 
Executive, and the National Intelligence Council.
    The Committee held an open hearing on the status of ongoing 
intelligence reform efforts on January 23, 2007. The positions 
of Director and Principal Deputy Director of National 
Intelligence were vacant at that time, so the four other Deputy 
Directors, along with the Chief Information Officer and the 
Deputy Program Manager for the Information Sharing Environment, 
served as witnesses. Witnesses discussed the impact of 
structural changes made to the IC, as well as the status of 
various efforts to reform management, information sharing, and 
coordination throughout the intelligence agencies, and efforts 
to improve the quality of intelligence collection and analysis.
    After his confirmation in February 2007 (see Section IV.A), 
Director McConnell and his deputies appeared before the 
Committee for numerous briefings and hearings throughout the 
110th Congress and the Committee monitored the progress of his 
two major management initiatives, the ``100 Day Plan'' and the 
``500 Day Plan''.
    The Committee held an open hearing on the authorities of 
the DNI on February 14, 2008. Director McConnell, the sole 
witness, discussed the challenges of having a national 
intelligence leadership role without operational control over 
most of the elements of the Intelligence Community. He also 
discussed his vision for the Intelligence Community writ large 
and the ODNI in particular. Several Committee members expressed 
the view that the Director's authorities may be inadequate to 
fulfill the position's various statutorily-mandated 
responsibilities. In particular, it was noted that the 
Director's authorities to transfer resources and personnel from 
one intelligence agency to another have been used relatively 
rarely, and that this may be the result of administrative 
obstacles that prevent them from being used efficiently.
    During his tenure, Director McConnell led an effort to 
update Executive Order 12333, which is a foundational document 
for the Intelligence Community. Revisions to the Executive 
Order were promulgated on July 30, 2008. They represented the 
first comprehensive change (though not the first modifications) 
of the Executive Order since its issuance in 1981 and primarily 
addressed Part 1 (duties and responsibilities with respect to 
the national intelligence efforts). The rewritten Executive 
Order has been adjusted to account for the creation of new 
elements of the Intelligence Community, such as the Director of 
National Intelligence, the National Geospatial Intelligence 
Agency, and the FBI's National Security Branch. It clarifies 
the role of the DNI in particular, and includes the new 
definition of ``national intelligence'' adopted by Congress in 
the Intelligence Reform and Terrorism Prevention Act of 2004.
    The Committee was consulted on the revision process, and 
held a closed hearing on the rewritten Executive Order shortly 
after its release. Committee staff was also able to review 
drafts of the proposed revisions shortly before they were 
finalized. The Committee noted that the revised Executive Order 
contains more than a dozen sections that call for the drafting 
of new rules or guidelines on various topics, including 
information access, security standards, intelligence collection 
and analysis, acquisition of major systems, classification and 
declassification, and intelligence relationships with foreign 
governments. At the close of the 110th Congress, many of these 
new rules and guidelines remained works in progress.
    The Committee also examined the fiscal year 2008 and 2009 
budget requests for the ODNI as part of the annual intelligence 
authorization process, and recommended various adjustments in 
resource and funding levels. In particular, the Committee noted 
that the Civil Liberties Protection Officer, who holds a wide 
range of statutorily-mandated responsibilities, had a staff of 
only two deputies, plus himself. The Committee recommended a 
significant increase in the size of this office. This 
recommendation was eventually enacted in other legislation for 
fiscal year 2008, and sustained in the President's budget 
request for fiscal year 2009, essentially tripling the size of 
the office.

7. Consideration of supplemental requests

    During its consideration of the Fiscal Year 2008 
Intelligence Authorization Act, the Committee also included 
recommendations for the Fiscal Year 2008 Global War of 
Terrorism/Iraq Requirements supplemental appropriations 
request. Unlike most other years, the Administration's fiscal 
year 2008 supplemental request was forwarded to Congress at the 
same time as the regular budget request. The Committee has 
reviewed supplemental requests in prior years and believes that 
most, if not all, of such requests can and should be included 
in the base budget request.
    The Fiscal Year 2008 Global War of Terrorism/Iraq 
Requirements supplemental appropriations request marked the 
seventh year the Intelligence Community had relied upon 
supplemental funding to pay for the conflict with al Qaeda and 
the fifth year of funding for continuing military operations in 
Iraq. The Committee noted how the reliance on supplemental 
appropriations to pay for known budget expenses hinders long-
term planning; causes uncertainty in all programs funded 
through this process; increases costs due to a reliance on 
contractors; and otherwise discourages fiscal discipline by 
presenting additional opportunities to fund questionable 
projects. The fact that the Administration forwarded the 
supplemental request at the same time as it forwarded the base 
budget request belied its inability to foresee these costs more 
than a year prior to their need. The Committee found that the 
costs associated with the intelligence operations against al 
Qaeda and in Iraq are not unforeseen emergencies traditionally 
funded in supplemental bills. The Administration did not heed 
the Committee's advice nor did it forward its fiscal year 2009 
supplemental request for the Global War of Terrorism and Iraq 
in time for Committee consideration of the Fiscal Year 2009 
Intelligence Authorization Act.

8. Information sharing

            a. Information technology
    The Committee conducted reviews of the DNI's efforts to 
improve information sharing across the Intelligence Community. 
While the Intelligence Community has created centers such as 
the National Counterterrorism Center and National 
Counterproliferation Center where intelligence information on 
terrorism and proliferation can be shared, the Committee 
remains concerned that individual IC agencies still do not 
routinely provide other intelligence agencies broad and 
seamless access to intelligence information regarding other 
subject matter. The Committee undertook this review to help the 
Intelligence Community change its former practices to ensure 
the establishment of a truly synergistic, collaborative 
intelligence environment.
    The Committee found that, while the DNI has improved 
information sharing within the Intelligence Community, much 
more needs to be done. Specifically, the Committee found that 
the Intelligence Community must expedite the implementation of 
its Information Sharing Strategy. This strategy includes the 
creation of a Single Information Environment which will develop 
common email and other communications services, provide common 
data centers, integrate information technology communications 
lines, and consolidate software license purchases.
    The Committee recommended in its Fiscal Year 2009 
Intelligence Authorization bill that the IC Chief Information 
Officer be empowered to ensure acceptance and compliance with 
the Information Sharing Strategy and Single Information 
Environment initiatives. The Committee report accompanying the 
authorization bill also recommended that a percentage of each 
IC agency's enterprise information technology funding not be 
obligated until the IC Chief Information Officer confirmed that 
agency's cooperation with these efforts.
            b. Information security
    As part of its review of the IC efforts to improve 
information sharing, the Committee recognized that increased 
sharing inherently increases the need to ensure the security of 
the intelligence information being shared as well as the 
sources and methods used to collect that information. The same 
information technology that enables improved sharing of 
intelligence also may permit the loss of large volumes of 
sensitive information unless the proper security is in place. 
As a result, the Committee made recommendations in its Fiscal 
Year 2009 Intelligence Authorization bill to increase funding 
for counterintelligence and security to help ensure improved 
information security proceeds at the same pace as improved 
information sharing.

9. Attorney General guidelines

    In 1976, Attorney General Edward Levi issued guidelines 
intended to reassure the Congress after congressional 
investigations had raised concerns over abuses in the 
intelligence activities of the FBI and of the rights of 
Americans. The Levi guidelines began with domestic security 
investigation guidelines issued on March 10, 1976 and were 
followed the same year with a memorandum to the Director of the 
FBI on the use of informants in domestic security, organized 
crime, and other criminal investigations. Subsequent Attorneys 
General modified the domestic security guidelines or issued 
additional guidance, including new guidelines issued by 
Attorney General Ashcroft for FBI national security 
investigations and foreign intelligence collection after the 
attacks of September 11, 2001.
    In early August 2008, Attorney General Michael Mukasey 
notified the leadership of the congressional intelligence and 
judiciary committees that he intended to issue revised 
guidelines governing the domestic investigations of the FBI. 
The new guidelines would consolidate and amend the existing 
Attorney General guidelines pertaining to general crimes 
investigations, national security investigations, foreign 
intelligence information collection, reporting on civil 
disorders and demonstrations, and participation in otherwise 
illegal activities.
    During August and September, officials from the Department 
of Justice and the FBI conducted briefings for congressional 
staff and select representatives of civil liberties and media 
organizations and provided access to the draft guidelines under 
the condition that they could be read but not retained.
    The Committee held a hearing on the proposed guidelines on 
September 23, 2008. The witnesses were Elisebeth Collins Cook, 
Assistant Attorney General for Legal Policy, and Valerie 
Caproni, General Counsel of the FBI. The Committee also 
requested statements from outside experts on the proposed 
consolidated guidelines. Kate Martin of the Center for National 
Security Studies submitted a statement. The prepared statements 
for the record are available at the Committee website.
    At the hearing, the witnesses testified that the Attorney 
General sought to consolidate and revise the guidelines for 
three primary reasons: (1) the national security guidelines 
were too restrictive for the FBI to become an intelligence-
driven organization ``capable of anticipating and preventing 
terrorist and other criminal acts as well as investigating them 
after they are committed;'' ( 2) certain distinctions between 
what could be done by FBI agents under the general crimes 
guidelines and national security guidelines were ``illogical 
and inconsistent with sound public policy;'' and (3) having 
inconsistent sets of guidelines for FBI investigations was 
``problematic from a compliance standpoint.''
    At the hearing, the Committee examined whether the proposed 
guidelines, and the implementing policy directives to be issued 
by the Director of the FBI after the guidelines were finalized, 
would contain appropriate safeguards (and be buttressed with 
sufficient oversight resources) to prevent abuse and ensure 
accountability for FBI operations and activities. Particular 
concern was raised about the greater latitude proposed in the 
guidelines for the use of sensitive investigative techniques, 
especially outside the terrorism context, without the factual 
predicates, higher level approval, and periodic review and 
renewal that have been required not only before September 11, 
2001, but in Attorney General guidelines issued since then. 
These techniques include physical surveillance and pretext 
interviews that may be intended to mislead law-abiding 
Americans.
    The Assistant Attorney General for Legal Policy testified 
that the Department was in the process of considering changes 
in the draft guidelines in response to concerns raised during 
the course of the Department's briefings. The FBI General 
Counsel testified that FBI policy directives would be made 
available to the Committee when issued.
    The Attorney General signed the consolidated Attorney 
General Guidelines for FBI Domestic Operations (AGG) on 
September 29, 2008, and directed they go into effect on 
December 1, 2008. The unclassified guidelines are available on 
the Department of Justice website.
    In response, in part, to suggestions emanating from the 
Committee, some modifications were made in the proposed 
Attorney General guidelines prior to their issuance. These 
included changes in provisions related to civil disorders and 
demonstrations to ensure protections found in the 1976 
guidelines were not reduced. Clarifications also were made in 
requirements in the guidelines on conducting assessments with 
respect to the FBI operating openly and consensually with 
Americans and respecting the First Amendment.
    In mid-November, the FBI provided a briefing for staff of 
the intelligence and judiciary committees on the development of 
the new FBI policies to implement the AGG. The FBI provided 
access, on a read and return basis, to draft sections of the 
FBI's Domestic Investigations and Operations Guide (DIOG), a 
collection of procedures, standards, approval levels, and 
explanations to govern FBI activities under the AGG. The DIOG 
also went into effect on December 1, 2008.
    By letter to Chairman Rockefeller dated December 15, 2008, 
Valerie Caproni, the General Counsel of the FBI, summarized the 
steps taken by the FBI and the Department of Justice to 
implement the AGG, through the development and issuance of the 
DIOG. (The letter may be found on the Committee's website.) Ms. 
Caproni discussed in detail the investigative category of 
Assessments allowed under the AGG, particularly those 
``furthest removed from traditional notions of predication,'' 
and the newly available assessments techniques. She noted that 
``we understand that the expansion of techniques available . . 
. has raised privacy and civil liberties concerns [but] we 
believe that our policies and procedures will mitigate those 
concerns.''
    In her letter, Ms. Caproni laid out the areas where the 
DIOG placed limitations and prohibitions on the conduct of 
Assessments. She stated that under the DIOG, the FBI is 
expressly prohibited from opening an Assessment based on 
``arbitrary or groundless speculation,'' or solely based on the 
exercise of First Amendment rights, or the race, ethnicity, 
national origin, or religious practice of any person or group. 
She also specified areas where additional levels of supervisory 
approval were required to initiate an Assessment and where time 
limits were imposed on the use of certain intrusive techniques.
    According to Ms. Caproni, the FBI will ``reassess the 
policy judgments made in the DIOG in one year.'' She stated 
that the reassessment will be ``informed by our experience in 
the coming year, as well as by comments and suggestions 
received from Congress and interested parties.'' She made the 
commitment that to the extent ``our experience reveals that, in 
execution, the DIOG has not mitigated legitimate concerns, our 
policies will be changed.''
    The Committee will continue to monitor the implementation 
of the Attorney General Guidelines and the FBI policy 
directives.

10. FBI intelligence transformation

    The Committee spent considerable time examining the efforts 
of the FBI to transform itself into a premier intelligence and 
national security organization, including efforts to improve 
its intelligence-enabling infrastructure. This included 
briefings with current and former FBI officials, oversight 
visits to FBI domestic field offices and Legal Attaches 
overseas, meetings with representatives of other intelligence 
agencies regarding FBI transformation efforts, and exchanges 
with academics and think tank experts on the structure and 
functions of FBI national security components. Additionally, in 
October 2007, the Committee held an open hearing with the 
Chairman and Vice Chairman of the National Commission on 
Terrorist Attacks Upon the United States (also known as the 9-
11 Commission) and FBI officials, who provided their assessment 
of FBI intelligence reform efforts.
    The Committee's 2009 authorization bill required the DNI, 
in coordination with the Director of the FBI, to establish 
performance metrics and timetables for FBI reform initiatives. 
In addition, the DNI was required to submit a report on FBI 
reform efforts to the congressional intelligence committees on 
a semi-annual basis for five years. Additional and specific 
funding recommendations were made to improve the effectiveness 
of FBI intelligence programs. For example, noting the lack of 
basic Internet connectivity for FBI Intelligence Analysts and 
Special Agents, the Committee recommended an additional amount 
of funding for information technology within the FBI to ensure 
desktop access to the Internet. Broadly, the Committee affirmed 
that it was anxious to assist the FBI in its transformation 
efforts, but noted the FBI must improve its cooperation and 
transparency with Committee oversight activities.
    Finally, the Committee held several closed hearings related 
to the domestic collection of intelligence, including the 
revisions of Executive Order 12333, which included a detailed 
examination of FBI national security capabilities.

11. IC Counterterrorism analysis and operations

    The Committee maintained a constant focus on 
counterterrorism matters throughout the 110th Congress. In 
addition to open hearings on Worldwide Threats, the Committee 
held more than three dozen formal briefings on counterterrorism 
related topics. Committee members regularly requested briefings 
on terrorism threats to the United States and attended several 
offsite visits with IC executives that included discussions of 
the terrorist threat to the United States.
    In addition to ensuring that the Intelligence Community 
received the resources and authorization needed to combat 
terrorism, the Committee worked to ensure American civil 
liberties were being protected and that United States values 
remained intact as we confronted the threat from terrorism. To 
that end, the Committee held extensive hearings on the 
presidential electronic surveillance program that came to be 
known as the Terrorist Surveillance Program and the CIA's use 
of enhanced interrogation techniques and destruction of 
videotapes associated with the interrogation program.
    The Committee continued to track the performance and 
standup of the National Counterterrorism Center (NCTC). The 
Committee held hearings on the status of the NCTC and conducted 
an intelligence oversight visit to the center to meet with its 
Director, analysts and other staff. In May 2008, the Committee 
held a hearing to confirm Michael Leiter as the second Director 
of the NCTC (see Section IV.D.).
    Committee oversight of United States Government 
counterterrorism efforts was not confined to formal hearings. 
The Committee's staff received biweekly briefings from the NCTC 
and the FBI on current threats to United States interests. 
Committee Members also received monthly updates on these 
terrorist threats that helped to ensure counterterrorism 
resources and activities were being used effectively and 
efficiently. Moreover, Committee Members and staff spent 
considerable time visiting regions of the world that were 
confronting domestic and international terrorism threats.
    Finally, the Committee established two staff-led study 
groups related to terrorism: the Terrorist Safe Havens Study 
Group and the Terrorist Ideology Study Group (described in 
Section III. B.).

12. Covert action

    Under the National Security Act, the DNI shall keep the 
congressional intelligence committees fully and currently 
informed of all covert actions that are the responsibility of, 
are engaged in by, or are carried out for or on behalf of any 
department or agency of the United States, including 
significant failures. The National Security Act defines a 
covert action to be an activity of the U.S. Government to 
influence political, economic, or military conditions abroad, 
where it is intended that the role of the U.S. Government will 
not be apparent or acknowledged publicly. The DNI shall furnish 
the committees with any information concerning covert actions 
that is in the possession of any U.S. Government entity and 
which is requested by either intelligence committee in order to 
carry out its responsibilities. The only qualification on this 
reporting responsibility is consistency with due regard for 
protection from unauthorized disclosure of classified 
information relating to sensitive intelligence sources and 
methods or other exceptionally sensitive matters.
    Under the Committee's rules, the Staff Director shall 
ensure that U.S. government covert action programs receive 
appropriate consideration by the Committee no less frequently 
than once a quarter. This is one of the Committee's most 
important functions. Every quarter, the Committee receives a 
written report on each covert action that is being carried out 
under a presidential finding. Committee staff then devote 
several sessions, often over a couple of days, to review with 
IC personnel the reports on each subject, and pose follow up 
questions and receive further briefings or written answers. The 
Committee usually schedules a closed hearing to examine a 
selected number of the programs in greater detail.
    As the Committee has written in past reports, the purpose 
of these program reviews includes ensuring that their means and 
objectives are consistent with U.S. foreign policy goals, were 
conducted in accordance with U.S. law, are producing or can be 
expected to produce reasonable benefits for the resources 
expended, and are consistent with U.S. ideals and principles.

13. CIA presidentially directed growth

    On November 23, 2004, the White House issued a Memorandum 
for the Director of Central Intelligence on Strengthening 
Central Intelligence Agency Capabilities. This memorandum 
called for a 50 percent increase in the number of analysts, 
fully qualified National Clandestine Service officers, and 
language proficient officers. There also was a requirement to 
double the number of CIA officers involved in research and 
development.
    During the 110th Congress, the Committee monitored this 
growth through numerous oversight visits, briefings, and 
hearings, and has expressed its concern that the CIA was not 
supporting the personnel increases across all Directorates with 
potentially adverse impacts on the overall goal of 
strengthening the CIA's capabilities. It has been the 
Committee's intent for the CIA to achieve a more balanced and 
sustainable pattern of growth. While the Committee noted that 
the CIA has modified its initial steps to address the 
challenges associated with personnel growth, the Committee will 
continue to monitor the CIA's progress toward achieving the 
stated goals and objectives.

14. CIA Lessons Learned Program

    During the 110th Congress the Committee commended the CIA 
for establishing a Lessons Learned Program. The Committee fully 
supports its growth at the operational and tactical level in 
the individual components of the CIA. The Committee encouraged 
the CIA to increase the number and type of studies, to create 
web-based lesson-sharing environments, to modernize its oral 
history programs, to support component-based lessons learned 
activities throughout the CIA, and to hire additional lessons 
learned subject matter experts as well as additional officers 
to enable the CIA to conduct interviews to record the insights 
of officers in key positions as they rotate on to new 
assignments or move into retirement.
    The Committee has conveyed to the CIA leadership that it 
expects the CIA to improve its internal processes for self-
examination, including increasing the use of formal lessons 
learned studies to learn from its successes and mistakes and to 
anticipate and be ready for new challenges. The Committee has 
prodded and encouraged the CIA to follow the lead of other 
high-risk, high-reliability organizations by investing time and 
resources in continuous learning and knowledge sharing.

15. Oversight of Department of Homeland Security intelligence 
        activities

    The Committee recommended funding levels for the Department 
of Homeland Security Office of Intelligence and Analysis (DHS 
I&A) and Coast Guard Intelligence in its Fiscal Year 2008 and 
Fiscal Year 2009 Intelligence Authorization bills. Although the 
Committee supported the President's budget request, the 
Committee expressed a few misgivings pertaining to DHS I&A 
programs. Specifically, the Committee closely followed the 
development of the National Applications Office (NAO) within 
the Department of Homeland Security as well as other important 
matters.
    The NAO is intended to centralize and facilitate the 
sharing of imagery from intelligence agency systems under 
appropriate circumstances for purposes related to law 
enforcement, homeland security, and civil applications. Because 
the NAO relates to the use of intelligence resources for 
domestic purposes, the Committee has been and continues to be 
attentive to civil liberties and privacy concerns associated 
with the NAO.
    The Committee concurred with the fiscal year 2008 
Department of Homeland Security appropriations act, which 
stated that ``none of the funds provided in this Act shall be 
available to commence operations of the National Applications 
Office . . . until the Secretary certifies that th[is] 
program[] compl[ies] with all existing laws, including all 
applicable privacy and civil liberties standards, and that 
certification is reviewed by the Government Accountability 
Office.'' The former Secretary of Homeland Security informed 
Congress that he had ``determined that the standard set forth 
in Section 525 . . . [was] met'' thereby certifying that the 
NAO complies with all existing laws, including all applicable 
privacy and civil liberties standards, with respect to its 
planned operations in what are known as the civil application 
and homeland security domains.
    The Committee assessed that the NAO should proceed pending 
the review of the certification. The Committee explicitly 
stated, however, that it strongly opposed the NAO fielding any 
law enforcement requests until the legal framework and standard 
operating procedures of the law enforcement domain were 
completed, certified by the Secretary, reviewed by the GAO, and 
provided to the appropriate congressional oversight committees. 
The Government Accountability Office completed its review on 
November 6, 2008, concluding that ``DHS has not resolved legal 
and policy issues associated with NAO support for law 
enforcement'' underscoring the need for such legal framework 
and standard operating procedures of the law enforcement domain 
before any law enforcement requests are fielded.
    The Committee also stressed the need for basic 
counterintelligence computer-based training at DHS I&A and 
Coast Guard Intelligence and sought to reduce the costs to the 
taxpayer associated with contractor support by providing much 
needed stability to the mission workforce by converting the 
contractor positions to full-time equivalents or full-time 
government positions. The Committee expressed its support of 
the Coast Guard initiative to create the intelligence 
specialist rate and emphasized the importance of human 
resources management at DHS I&A where recruitment and retention 
are at distressingly low numbers.
    The Committee requested the Secretary of Homeland Security 
complete a formal national fusion center strategy outlining the 
federal government's clear expectations of fusion centers as, 
according to the GAO, the fusion centers have ``increasingly 
gravitated toward an all-crimes and even broader all-hazard 
approach.''
    Finally, the Committee noted its concerns about certain 
reports issued by DHS I&A, which included U.S. person 
information or sought such information. These reports used 
certain questionable open source information as a basis of 
their conclusions and raised fundamental questions about the 
role and mission of DHS I&A.

16. Defense Intelligence Officers

    The Committee conducted numerous staff interviews with the 
leaders and representatives of the Defense Intelligence Agency 
(DIA), the Chairman of the Joint Chiefs of Staff Directorate 
for Intelligence, and officials of the Office of the Under 
Secretary of Defense for Policy. The Committee found that 
coordination and sharing of intelligence information and 
analysis, along with intelligence support to senior DOD 
policymakers could be significantly improved by reestablishing 
the Defense Intelligence Officer program, which in the 
Committee's view was imprudently discontinued in 2003.
    The Committee directed a study be conducted and authorized 
additional funding for the DIA to reestablish the program. The 
Director of the DIA subsequently designated seven individuals 
as Defense Intelligence Officers for Latin America, Eurasia, 
the Middle East and North Africa, Europe and NATO, South Asia, 
Africa, and East Asia. Defense Intelligence Officers complement 
the National Intelligence Council's National Intelligence 
Officers. The Defense Intelligence Officers speak for the 
Director of the DIA and the Director's Functional Manager for 
Analysis, who oversees analysis by the DIA, the Military 
Service Intelligence Centers, and the Combatant Command 
intelligence centers.

17. Armed Forces Medical Intelligence Center

    The Committee recognized the unique and valuable 
contributions of the DIA's Armed Forces Medical Center 
following a number of interviews with Agency analysts and staff 
officers and leaders of the Center. The Armed Forces Medical 
Center has been the nation's only resource for scientific 
intelligence of a medical nature, to include analysis of 
infectious disease, effects of chemical and biological weapons 
and analysis of medical resources and capabilities around the 
world. Since September 11, 2001 and increased concern of 
chemical or biological attack in the United States, the Center 
has taken on new and greater responsibilities for homeland 
security and medical indications and warnings, as well as its 
traditional role of supporting and informing military units 
that serve in theaters of combat operations such as Iraq and 
Afghanistan. Recognizing this, the Committee recommended 
elevating the Center's command structure as well as additional 
funding. Given the Committee's concerns and focus, in mid-2008 
the Center became a national intelligence center, the National 
Center for Medical Intelligence, under the DIA. The Under 
Secretary of Defense is studying the options for placing 
leadership of the Center under a senior civilian executive or a 
general officer.

18. Defense Counterintelligence and HUMINT Center

    In addition to the Committee's exploration of human source 
intelligence in the HUMINT Study Group, staff also performed 
research on the counterintelligence function and its 
relationship to HUMINT, spending considerable time meeting with 
HUMINT specialists of the DOD, particularly with professional 
staff officers of the Under Secretary of Defense for 
Intelligence, which had begun its own HUMINT and 
counterintelligence studies to determine how to update military 
organizations, missions and functions. Working closely with the 
Office of the Under Secretary for Intelligence, the Committee 
recommended a closer support and operational relationship 
between HUMINT and counterintelligence and a more unified 
effort among all Defense elements conducting or supporting 
HUMINT and counterintelligence operations. The Committee also 
expressed concerns regarding the oversight of HUMINT and the 
levels of collaboration and professional standards found within 
the Defense HUMINT community. In April 2008, the Secretary of 
Defense endorsed a plan by the Under Secretary of Defense for 
Intelligence to integrate the Counterintelligence Field 
Activity, the DIA's counterintelligence analysis assets and the 
Defense HUMINT Service, along with other important support 
offices under the DIA's new Defense Counterintelligence and 
HUMINT Center. As recommended by the Committee, the Center will 
dramatically improve counterintelligence support to HUMINT, 
professional oversight and collaboration, and save significant 
resources in the sharing of resources and infrastructure.

19. CIA interrogation tapes

    In 2008, the Committee commenced an inquiry into 
allegations relating to destruction of CIA interrogation tapes, 
which is in process as of the date of this report.

        D. Financial Accounting, Inspectors General, and Audits

    The Committee's rules provide that within its staff there 
``shall be an element with the capability to perform audits of 
programs and activities undertaken by departments and agencies 
with intelligence functions. Such element shall be comprised of 
persons qualified by training and/or experience to carry out 
such functions in accordance with accepted auditing 
standards.'' This element is called the Audits and Evaluations 
Staff and in addition to conducting such reviews, it has 
responsibility for assisting in the Committee's oversight of 
the IC's compliance with financial accounting standards and 
also the Committee's interaction with the various IGs whose 
work includes or covers the Intelligence Community.

1. IC Compliance with federal financial accounting standards

    During the 110th Congress, the Committee continued to 
closely monitor the Intelligence Community's financial 
management practices. The foundation for these activities is 
the 1990 Chief Financial Officers Act, which requires public 
sector agencies to report financial information in a structured 
and uniform manner. One goal of the Act was to establish a 
process to provide reliable, useful and timely financial 
information to support decision making and accountability 
regarding the use of federal funds. The elements of the 
Intelligence Community were not included in the Chief Financial 
Officers Act's original 24 agency pilot program. To address 
this omission, the Committee's report accompanying the 
Intelligence Authorization Act for Fiscal Year 2002 directed 
the Director of Central Intelligence, in consultation with the 
Secretary of Defense, to ``ensure that all agencies in the DoD-
NFIP aggregation, including the CIA, receive an audit of their 
financial statements by March 1, 2005.'' This deadline was 
extended several times. Most recently, in December 2006, when 
it became evident that NSA, NGA, and DIA were still unable to 
comply, the Chairman and Vice Chairman granted another 
extension, providing that the fiscal year 2007 financial 
statement audits for all IC agencies should be completed by 
November 15, 2007. Also, this extension included a requirement 
for the DNI, in consultation with the Office of Management and 
Budget, to submit to the Committee by March 1, 2007, a plan for 
IC compliance with the financial statement audit requirement. 
The Chairman and Vice Chairman envisioned that this plan would 
include a business enterprise architecture and a transition 
plan to this architecture.
    Financial auditability was a major concern raised by the 
Committee during the February 2007 confirmation hearing for DNI 
McConnell. In response to questions, he pledged to achieve a 
``workable solution with alacrity.'' In April 2007, DNI 
McConnell issued a Financial Statement Auditability Plan to the 
Committee. The plan offered a detailed description of the 
current status of the IC's ability to produce financial 
statements and outlined a plan with key milestones for 
achieving auditability at each agency by 2012. An important 
element of the plan was a proposed follow-on study to produce 
the enterprise architecture and transition plan sought by the 
Committee. This broad-based study would inventory existing and 
planned business systems, define requirements and key 
interfaces, provide inputs to investment decisions, and 
describe transition activities. The Chairman and Vice Chairman 
wrote the DNI in May 2007, granting him until December 2007 to 
produce this study.
    When it became clear that the DNI would not be able to meet 
the December 2007 extension, the Committee in its fiscal year 
2008 authorization bill (Section 316), prohibited funding for 
any new business system that did not comply with the business 
enterprise architecture, which was to be established by the DNI 
by March 2008. The provision made it a violation of the Anti-
Deficiency Act to fund systems that were not certified as 
complying with that architecture. The bill also established a 
rigorous IC Business System Investment Review process that 
would guide investment decisions. As discussed in Section II, 
the conference report on the bill was vetoed by the President. 
The provision was adopted again in the fiscal year 2009 
authorization bill but, as also discussed in Section II, that 
bill did not pass Congress.
    The Committee received the follow-on study, titled 
Financial Management Systems Report, in April 2008. The report 
fell well short of expectations and merely outlined a plan to 
consolidate the current environment of four financial systems 
to two. The report did not offer insight into how common feeder 
systems would be developed or a transition plan. Once again, 
the report promised a second phase that would address feeder 
systems, which the ODNI promised by September 30, 2008. This 
second report had not been received as of February 1, 2009, and 
since April 2008 there has been significant turnover in the 
DNI's financial management personnel and several changes in the 
plan for business system transformation. Most recently, on 
October 6, 2008, a new Business Transformation Office was 
established within the office of the DNI Chief Financial 
Officer, but initial impressions are that first steps will 
include further study of the current situation, and 
establishment of another set of working groups, which to date 
have not been embraced by the IC agencies nor produced tangible 
results.
    As further evidence of the poor status of IC financial 
management, in November 2007 the Committee received the first 
version of each agency's Annual Financial Report, which 
contained financial statements and related reporting by agency 
management. The Committee was generally disappointed in their 
content and prepared a detailed set of questions on each report 
in an attempt to gain further insight into agency management's 
plans for improving financial management practices. The agency 
responses, while generally complete, failed to offer definitive 
plans for fully addressing financial weaknesses. As an 
indication of the lack of senior management attention to this 
critical area, although the questions were addressed to the 
agency directors, only one response was signed by a director.

2. Oversight of Intelligence Community Inspectors General

    During the 110th Congress, the Committee continued to 
monitor the activities of the IGs of the IC. This oversight 
included: review of numerous IG products, including audit 
reports, inspection reports, reports of investigation, and 
semi-annual reports of IG activities; numerous visits to IG 
offices for updates on plans and procedures; and attendance and 
participation at several IG conferences. In addition to a 
number of Committee hearings on issues reviewed by the IC IGs, 
staff conducted a number of briefings with Community program 
and IG personnel in order to follow up on the status of IG 
recommendations. Examples include employee grievances, 
management of operational activities, contracting procedures, 
employee recruitment and security processing, and effective use 
of resources on new technology.
    During the 110th Congress, the Committee continued its work 
to ensure the effectiveness and independence of the 
administrative IGs at NRO, NSA, NGA, DIA, and the Office of the 
Director of National Intelligence. The Committee reinforced the 
importance of the IG function through its regular interaction 
with agency directors, the IGs, and their staffs. The 
administrative IGs also submitted annual reports to the 
Committee detailing their requests for fiscal and personnel 
resources, and the plan for their use. These reports included 
the agency programs and activities scheduled for review during 
the fiscal year, comments on the office's ability to hire and 
retain qualified personnel, any concerns relating to the 
independence and effectiveness of the IG's office, and an 
overall assessment of the agency's response to the IG's 
recommendations during the previous year. These annual reports 
served as a basis for Committee oversight throughout the 110th 
Congress.
    Additionally, the Fiscal Year 2006, Fiscal Year 2007, and 
Fiscal Year 2008 Intelligence Authorization bills included 
provisions to add the National Reconnaissance Office, National 
Security Agency, National Geospatial-Intelligence Agency, and 
Defense Intelligence Agency IGs to Section 8G of the Inspector 
General Act of 1978. This statutory designation will provide 
the IGs with additional authorities to conduct investigations 
including the ability to compel production of information. The 
three authorization bills also included a provision amending 
the National Security Act of 1947 to establish a statutory 
charter for the DNI IG.

3. Audits

    During the 110th Congress, the audit staff completed two 
audits--on Document Exploitation and a Compartmented Program--
and made substantial progress toward completing a major review 
of the IC's acquisition processes.
            a. Document exploitation
    Beginning in December 2005, the Committee's audit staff 
reviewed the practice of collecting, processing, translating, 
and reporting on information obtained from overtly captured 
and/or clandestinely acquired paper documents and electronic 
media. This overall activity, called document and media 
exploitation or ``DOMEX,'' is an effort that since 2001 has 
realized a rapid increase in funding because of the valuable 
intelligence information it provides to both tactical 
operations and strategic analysis. The Committee was concerned 
about the varied and disparate Community initiatives to 
process, translate, and exploit captured documents and 
electronic media. The audit analyzed the costs of the various 
document and media exploitation efforts and associated 
technology development programs. The audit also evaluated the 
intelligence value derived from these efforts and the budget 
implications for sustaining these initiatives over the long 
term.
    Building on the results of its audit, the Committee, in the 
May 2006 report accompanying its Fiscal Year 2007 bill, 
encouraged the DNI to appoint a program manager for the 
National Intelligence Program DOMEX efforts, develop a national 
DOMEX strategy, and form a DOMEX technology investments board 
to guide and develop a coordinated Community-wide research and 
development strategy. During the 110th Congress, the ODNI 
responded to the audit report by establishing the position of 
Senior Advisor for DOMEX, issued an IC Directive on the 
subject, and initiated efforts to develop a clear Community 
vision and strategic direction for the DOMEX enterprise.
            b. Compartmented program
    The Committee's Audit and Evaluation Staff conducted a 
review of a compartmented IC program. Given the significant 
amount of time and money that had been invested in that 
program, the Committee was concerned about the termination of a 
major program element and whether the Committee had been 
adequately informed about the program's overall status. The 
audit examined the series of events and activities that led to 
the current program status, as well as the associated cost, and 
made recommendations regarding program management, establishing 
an appropriate funding level, and revalidation of the 
requirements process.
            c. Intelligence Community acquisition processes
    In 2008 the Audit and Evaluations Staff began a review of 
the Intelligence Community's acquisition capability. The review 
was focused on the DNI's role in overseeing the Intelligence 
Community's acquisition processes and the performance at four 
primary agencies: the NSA, NGA, NRO, and CIA.
    The audit found the ODNI is now providing valuable 
oversight, specifically with regard to major systems 
acquisitions. To increase oversight of the function the DNI 
established a new DDNI for Acquisition. That office has issued 
several policy documents that are driving standardization in IC 
acquisition management processes and begun conducting annual 
reviews of how Milestone Decision Authority should be delegated 
to the agencies.
    The DDNI for Acquisition's most useful contribution has 
been the annual Program Management Plan report on major 
acquisitions, which was required by the Intelligence Reform and 
Terrorism Prevention Act. For the first time, in one document, 
the Committee receives information on the community's largest 
programs from satellite development to information technology 
systems. The most recent report noted progress in compliance 
with DNI guidance on establishing valid cost, schedule, and 
performance baselines. Key problem areas that remain include 
the need for improved acquisition management tools, failure to 
realistically price contracts, and cost and schedule baselines 
that remain vague and inconsistent.
    The Committee's review of IC acquisition practices 
developed a number of preliminary conclusions. The most 
prevalent finding was that despite being recognized as critical 
to every IC mission and operation, senior management of the 
individual agencies has continually failed to dedicate adequate 
attention and resources to the acquisition function. The audit 
also found the Intelligence Community has insufficient 
experienced professionals to properly oversee the execution and 
management of billions of dollars in annual acquisitions, and 
there is a need for better management and training of the 
workforce. There is also a need for a skills assessment, 
establishment of tenure requirements for acquisition managers, 
and succession planning.
    Other areas of Committee concern include: the use of 
contractors to perform administrative or source selection 
aspects of an acquisition; contractor involvement in monitoring 
the technical performance of another contractor; the need for 
increased government monitoring of contractor performance 
through formal progress measurement tools such as Earned Value 
Management; properly using fee/profit earning potential to 
incentivize contractor performance; and the need for wider use 
of the Defense Contract Audit Agency to provide contract audit 
services. The final report will contain a number of 
recommendations to address these findings.

                            IV. NOMINATIONS

    During the 110th Congress, five nominations were referred 
to the Committee, four directly upon receipt of the nomination 
in the Senate and one sequentially after referral to and 
reporting by another committee. The Committee held hearings for 
all of the nominees and recommended to the Senate that it give 
its advice and consent to four of the five nominations. One 
nominee withdrew his nomination prior to a Committee vote. The 
Senate ultimately confirmed the four individuals recommended by 
the Committee.
    Throughout the Congress, referrals to the Committee were 
governed by Section 17 of S. Res. 400 of the 94th Congress, 
which had been added by S. Res. 445 of the 108th Congress and 
was further augmented during the 109th Congress. As a result of 
S. Res. 445, all nominations to advice and consent positions in 
the Intelligence Community are referred to this Committee, even 
when they are positions--such as the Assistant Attorney General 
for National Security--that are within departments which are 
primarily under the jurisdiction of other Senate committees.
    Three of the nominations received by the Committee were for 
positions created by the National Security Intelligence Reform 
Act of 2004 that were being filled for only the second time: 
the DNI; Principal Deputy DNI; and the Director of the NCTC. 
One other nomination was also being filled for the second time, 
the position of Assistant Attorney General for National 
Security, established by the USA PATRIOT Improvement and 
Reauthorization Act of 2005 (March 9, 2006).
    A primary task of the Committee during the 110th Congress 
was to examine in detail the responsibilities of these 
relatively new leadership positions in the IC. The Committee 
accomplished this not only through questioning the nominees at 
their confirmation hearings but also through extensive 
prehearing questions, the responses to which have been or will 
be printed in the hearing volumes for these nominations. 
Through the nomination process and its traditional oversight, 
the Committee has been able to assess the unique role and 
contributions of each position within the Intelligence 
Community. For example, the Committee continues to explore 
whether the DNI has sufficient statutory authorities to lead 
the Intelligence Community.
    The following were the nominations referred to the 
Committee during the 110th Congress, listed in accordance with 
the date of the nomination:

       A. J. Michael McConnell, Director of National Intelligence

    The Intelligence Reform and Terrorism Prevention Act of 
2004 created the position of DNI and assigned to the DNI the 
responsibility of serving as the head of the Intelligence 
Community and acting as the principal adviser to the President 
for intelligence matters relating to national security. The 
Reform Act provides that any individual nominated to be 
appointed as DNI shall have extensive national security 
experience.
    Among the position's duties and responsibilities, the DNI 
is charged with determining the annual National Intelligence 
Program budget and ensuring the effective execution of it. The 
DNI is to determine requirements and priorities for the 
collection, analysis, and dissemination of national 
intelligence. The DNI shall ensure compliance with the 
Constitution and laws by the CIA and, through their host 
departments, by the other elements of the Intelligence 
Community.
    On January 22, 2007, the President nominated J. Michael 
McConnell to be the DNI. Prior to his nomination, Admiral 
McConnell served as a Senior Vice President at Booz Allen 
Hamilton, a government contractor and consulting firm that he 
joined in 1996 after retiring from a distinguished career in 
the United States Navy. From 1992 through 1996, Admiral 
McConnell served as the Director of the NSA. During his twenty-
nine year Naval career, he served as the Intelligence Officer 
for the Chairman, Joint Chiefs of Staff, and as the Director of 
Intelligence Pacific Fleet and Seventh Fleet. In addition to 
holding a Masters degree in public administration, Admiral 
McConnell is also a graduate of the National Defense University 
and the National Defense Intelligence College.
    After receiving Mr. McConnell's responses to the 
Committee's standard questionnaire, and responses to the 
Committee's prehearing questions about his understanding of the 
duties and responsibilities of the office to which he had been 
nominated, the Committee held a nomination hearing on February 
1, 2007. Admiral McConnell's testimony is printed in S. Hrg. 
110-225. The Committee reported the nomination favorably on 
February 6, 2007, by a vote of 15-0. The Senate confirmed Mr. 
McConnell's appointment to be DNI on February 7, 2007, by a 
voice vote.

     B. John A. Rizzo, General Counsel, Central Intelligence Agency

    Under section 403t of title 50, United States Code, the 
General Counsel of the Central Intelligence Agency is the chief 
legal officer of the CIA. The General Counsel shall perform 
such functions as the Director of the CIA may prescribe.
    On January 9, 2007, the President nominated John A. Rizzo 
to be the General Counsel of the CIA. Mr. Rizzo had previously 
been nominated for this position during the 109th Congress, but 
the nomination was returned to the President under the 
provisions of Rule 31.6 of the Standing Rules of the Senate. 
Mr. Rizzo joined the CIA in 1976, the beginning of a lengthy 
tenure with the Agency. In 1985, Mr. Rizzo moved to the CIA's 
Office of Inspector General where he conducted investigations 
into alleged wrongdoing by chiefs of station. From 1986-1989, 
he served as the Deputy Director of the Office of Congressional 
Affairs. As such, he was the CIA's lead counsel in dealing with 
the congressional committees investigating the Iran-Contra 
affair. Mr. Rizzo rejoined the Office of General Counsel in 
1988 and became the Principal Deputy General Counsel in the 
Office of General Counsel in 1995. He served as Acting General 
Counsel during periods of vacancies in that office from 
November 2001 to November 2002 and from August 2004 through 
June 2006.
    After receiving Mr. Rizzo's responses to the Committee's 
standard questionnaire, and responses to the Committee's 
prehearing questions about his understanding of the duties and 
responsibilities of the office to which he had been nominated, 
the Committee held an open and a closed nomination hearing on 
June 19, 2007. Following those hearings, members also posed 
additional questions in writing. Mr. Rizzo's open hearing 
testimony and answers to the written questions are printed in 
S. Hrg. 110-407. On September 25, 2007, the Committee was 
notified that the President had formally withdrawn Mr. Rizzo's 
nomination from consideration.

 C. Donald M. Kerr, Principal Deputy Director of National Intelligence

    The Intelligence Reform Act established the position of 
Principal Deputy Director of National Intelligence (PDDNI) to 
assist the DNI in carrying out the duties and responsibilities 
of the Director under the National Security Act. The Act 
provides that the PDDNI shall exercise the powers of the DNI 
during the DNI's absence or disability, or in the event of a 
vacancy. It also provides that an individual nominated for 
appointment as PDDNI shall not only have extensive national 
security experience (a requirement applicable to the DNI as 
well) but also management expertise. It contains a sense of 
Congress that under ordinary circumstances, one of the persons 
serving as DNI or PDDNI shall be a commissioned officer in 
active status or have, by training or experience, an 
appreciation of military intelligence.
    On July 11, 2007, the President nominated Donald M. Kerr, 
who was then serving as the Director of the NRO, to succeed 
Michael V. Hayden as the PDDNI. Throughout his career, Dr. Kerr 
had held a number of positions within the government and 
private sector. He began his career as a staff member at the 
Los Alamos National Laboratory (LANL). After approximately 10 
years at LANL, he assumed a Deputy Manager position at the U.S. 
Department of Energy, eventually attaining the title of Acting 
Assistant Secretary for Energy Technology. He subsequently 
became the Director of LANL, a position that he held for 6 
years before entering the private sector. In 1997, he returned 
to government service to become the Assistant Director in 
Charge, Laboratory Division, at the FBI. In August 2001, he was 
named Deputy Director for Science and Technology at the CIA. He 
held this position until July 2005 when he became the Director 
of the NRO.
    The Committee held a nomination hearing on August 1, 2007. 
Mr. Kerr's testimony and his responses to the Committee's 
questionnaire and prehearing questions are printed in S. Hrg. 
110-452. The Committee reported the nomination favorably on 
September 24, 2007, by a vote of 12-3. On October 4, 2007, the 
Senate agreed by voice vote to the nomination.

 D. Michael E. Leiter, Director of the National Counterterrorism Center

    The Intelligence Reform Act of 2004 established the NCTC 
within the ODNI. The Act provides that the NCTC Director has 
two reporting responsibilities: to the DNI on the NCTC's budget 
and programs, the activities of its Directorate of 
Intelligence, and the conduct of intelligence operations 
implemented by other elements of the IC; and to the President 
on the planning and progress of joint counterterrorism 
operations other than intelligence operations.
    The Act provides that the NCTC is the government's primary 
organization for the analysis of counterterrorism and terrorism 
intelligence, except for intelligence pertaining solely to 
domestic terrorism. Beyond analysis, the NCTC is to conduct 
strategic operational planning for counterterrorism activities, 
integrating all instruments of national power, including 
diplomatic, financial, military, intelligence, homeland 
security, and law enforcement. It also assigns roles and 
responsibilities to lead agencies, but does not direct the 
execution of resulting operations. The Director of NCTC serves 
as the principal adviser to the DNI on counterterrorism 
operations.
    On March 31, 2008, the President nominated Michael E. 
Leiter to be the Director of the NCTC. Mr. Leiter had served as 
the Acting Director of the NCTC since November 2007, and before 
that was the NCTC's Principal Deputy Director. Before joining 
the NCTC, Mr. Leiter was the Deputy Chief of Staff for the ODNI 
and served as the Deputy General Counsel and Assistant Director 
of the President's Commission on the Intelligence Capabilities 
of the United States Regarding Weapons of Mass Destruction (the 
``Robb-Silberman Commission''). From 2002 until 2005, he served 
with the Department of Justice as an Assistant United States 
Attorney for the Eastern District of Virginia. He also was a 
law clerk to Associate Justice Stephen G. Breyer of the Supreme 
Court of the United States and to Chief Judge Michael Boudin of 
the U.S. Court of Appeals for the First Circuit. From 1991 
until 1997, he served as a Naval Flight Officer flying EA-6B 
Prowlers in the U.S. Navy, participating in U.S., NATO, and UN 
operations in the former Yugoslavia and Iraq.
    The Committee held a nomination hearing on May 6, 2008. Mr. 
Leiter's testimony and his answers to the Committee's 
prehearing questions have not yet been printed in the Senate 
record. The Committee acted favorably on Mr. Leiter's 
nomination on June 5, 2008, by voice vote. The Senate confirmed 
his appointment on June 10, 2008, by voice vote.

E. J. Patrick Rowan, Assistant Attorney General for National Security, 
                         Department of Justice

    The National Security Division at the Department of Justice 
and the position of Assistant Attorney General for National 
Security were created by Congress in the USA PATRIOT 
Improvement and Reauthorization Act of 2005, which became law 
on March 9, 2006, in an effort to coordinate national security 
investigations and prosecutions within the Department of 
Justice. The Assistant Attorney General (AAG) serves as the 
Attorney General's principal legal advisor on national security 
issues and is the primary liaison for the Department of Justice 
to the DNI.
    On June 19, 2008, the President nominated J. Patrick Rowan, 
who was then Acting Assistant Attorney General, to fill the 
position of AAG. Mr. Rowan previously served as the NSD's 
Principal Deputy Assistant Attorney General. Prior to the 
establishment of the NSD, Mr. Rowan served as an Associate 
Deputy Attorney General where he assisted in the management of 
national security functions for the Justice Department. Before 
that, he held a number of positions in the Department, 
including Senior Counsel to the Assistant Attorney General for 
the Criminal Division, Special Counsel for the Office of 
General Counsel of the FBI, and Counsel to the Director of the 
Executive Office for United States Attorneys. From 1991 to 
2002, Mr. Rowan served as an Assistant U.S. Attorney for the 
District of Columbia, where he prosecuted a range of offenses, 
including fraud, public corruption, and homicide.
    Under a procedure established in the PATRIOT Act 
Reauthorization, and incorporated in Senate Resolution 400 of 
the 94th Congress on this Committee's jurisdiction and 
procedures, nominations for the position of Assistant Attorney 
General for National Security are referred first to the 
Judiciary Committee and then sequentially to this Committee. 
The nomination was reported favorably by the Judiciary 
Committee on September 11, 2008. It was then referred 
sequentially to this Committee which held a public hearing on 
September 25, 2008. Mr. Rowan's testimony and his responses to 
the Committee's prehearing questions have not yet been printed. 
The nomination was discharged from this Committee by unanimous 
consent on September 26, 2008. The Senate confirmed Mr. Rowan 
on that same day by voice vote.

                        V. SUPPORT TO THE SENATE

    The Committee undertook a number of activities to support 
the Senate's deliberations. The Chairman and Vice Chairman 
began the 110th Congress by writing to all members to encourage 
them to make use of the Intelligence Committee's resources. The 
Chairman and Vice Chairman also wrote to new Senators to 
describe the special role of the Intelligence Committee and to 
make them aware of support the Committee provides to members.
    In addition to its unclassified reports, the Committee 
sought to support Senate deliberations by inviting the 
participation of members outside the Committee in briefings and 
hearings on issues of shared jurisdiction or interest. The 
Committee has made available for members of the Senate 
intelligence information regarding topics relevant to current 
legislation. Because of the high level of interest in the 
topic, the Committee compiled and maintained the most recent 
intelligence reporting on Iran and made this reporting 
available to all members.
    Members outside the Committee have frequently sought and 
received intelligence briefings by the Committee's professional 
staff. Members have also requested and received assistance in 
resolving issues with elements of the IC. Finally, the 
Committee routinely invites staff from other Committees to 
briefings on intelligence issues of common concern.

                              VI. APPENDIX


                      Summary of Committee Actions


A. Number of meetings

    During the 110th Congress, the Committee held a total of 
113 on-the-record meetings, briefings, and hearings, and 
numerous off-the-record briefings. There were 66 oversight 
hearings, 5 open and 1 closed confirmation hearings, 5 hearings 
on the IC budget, and 5 legislative hearings. Of these 82 
hearings, 15 were open to the public and 67 were closed to 
protect classified information pursuant to Senate rules. The 
Committee also held 7 on-the-record briefings and 24 business 
meetings. Additionally, the Committee staff conducted 4 on-the-
record briefings and interviews and numerous off-the-record 
briefings.

B. Bills and resolutions originated by the Committee

    S. 372, Intelligence Authorization Act for Fiscal Year 2007
    S. Res. 50, An original resolution amending Senate 
Resolution 400 (94th Congress)
    S. Res. 51, An original resolution authorizing expenditures 
by the Select Committee on Intelligence
    S. 1538, Intelligence Authorization Act for Fiscal Year 
2008
    S. 2248, Foreign Intelligence Surveillance Act of 1978 
Amendments Act of 2007
    S. 2996, Intelligence Authorization Act for Fiscal Year 
2009

C. Bills referred to the Committee

    S. 82, To reaffirm the authority of the Comptroller General 
to audit and evaluate the programs, activities, and financial 
transactions of the intelligence community, and for other 
purposes
    S. 1018, To address security risks posed by global climate 
change and for other purposes
    S. 1613, To require the Director of National Intelligence 
to submit to Congress an unclassified report on energy security 
and for other purposes
    S. 3041, To establish the Foreign Intelligence and 
Information Commission to assess needs and provide 
recommendations to improve foreign intelligence and information 
collection, analysis, and reporting, and for other purposes
    S. 3386, To prohibit the use of certain interrogation 
techniques and for other purposes
    S. 3437, To limit the use of certain interrogation 
techniques, to require notification of the International 
Committee of the Red Cross of detainees, to prohibit 
interrogation by contractors, and for other purposes

C. Publications

    S. Rep. 110-2, Report to accompany S. 372
    S. Rep. 110-3, Report to accompany S. Res. 50
    S. Rep. 110-57, Report of the Select Committee on 
Intelligence Covering the Period January 4, 2005 to December 8, 
2006
    S. Prt. 110-22, Rules of Procedure (Amended March 1, 2007)
    S. Rep. 110-75, Report to accompany S. 1538
    S. Rep. 110-76, Report on prewar intelligence assessments 
about postwar Iraq
    S. Rep. 110-125, Report to accompany S.1547, National 
Defense Authorization Act for Fiscal Year 2008
    S. Rep. 110-209, Report to accompany S.2248
    S. Rep. 110-478, Conference report to accompany H.R. 2082
    S. Hrg. 110-225, Nomination of Vice Admiral Michael 
McConnell to be the Director of National Intelligence
    S. Hrg. 110-348, Terrorist Ideology
    S. Rep. 110-333, Report to accompany S. 2996
    S. Rep. 110-345, Report on whether public statements 
regarding Iraq by U.S. Government officials were substantiated 
by intelligence information
    S. Rep. 110-346, Report on intelligence activities relating 
to Iraq conducted by the Policy Counterterrorism Evaluation 
Group and the Office of Special Plans within the Office of the 
Undersecretary of Defense for Policy
    S. Hrg. 110-399, Modernization of the Foreign Intelligence 
Surveillance Act
    S. Hrg. 110-407, Nomination of John A. Rizzo to be General 
Counsel of the CIA
    S. Hrg. 110-452, Nomination of Donald M. Kerr to be 
Principal Deputy Director of National Intelligence

                                  
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