H.R. 2701: Intelligence Authorization Act for Fiscal Year 2010

H.R. 2701

Intelligence Authorization Act for Fiscal Year 2010

Date
February 25, 2010 (111th Congress, 2nd Session)

Staff Contact
Communications

Floor Situation

H.R. 2701 is expected to be considered under a structured rule on Thursday, February 25, 2010.  The legislation was introduced by Rep. Silvestre Reyes (D-TX) on June 4, 2009.  The bill was ordered to be reported by voice vote by the House Permanent Select Committee on Intelligence on June 26, 2009.  On July 8, 2009, the Rules Committee reported a rule for the bill that made in order 14 specified amendments.  Faced with a White House veto threat, however, the measure was then pulled from the floor schedule.

The Senate passed its Fiscal Year 2010 intelligence authorization bill on September 16, 2009.

 

Bill Summary

H.R. 2701 authorizes the intelligence activities of the United States government for Fiscal Year 2010.  These activities are intended to enhance national security, support and assist the Armed Forces, and facilitate U.S. foreign policy.  The bill includes a classified schedule of authorizations which is incorporated into the legislation.

Personnel Ceiling Adjustments:  H.R. 2701 allows the Director of National Intelligence (DNI) to authorize employment of civilian personnel in excess of the specified ceiling unless it exceeds three percent of the total limit for each agency.

Intelligence Community Management Account:  The bill authorizes $672.8 million in Fiscal Year 2010 for the DNI's Intelligence Community Management Account, as well as 853 full-time personnel for this account.  This is the principal source of funding for the Office of the DNI and provides resources for the coordination of programs, budget oversight, and management of the intelligence agencies.

Inspector General:  The bill establishes an Office of Inspector General (IG) for the entire Intelligence Community in addition to the Inspectors General operating at each intelligence agency, including the Office of the Director of National Intelligence.  The position would be appointed by the President, confirmed by the Senate, and would report directly to the DNI.  This IG would have subpoena authority.  Members may be concerned that a duplicative new Inspector General would harm the flexibility, agility, and timeliness of oversight conducted by intelligence agency IGs.

Security Clearances:  H.R. 2701 requires an ombudsman for security clearances in the Intelligence Community.  The ombudsman would provide persons experiencing delays in obtaining their security clearances with an avenue for seeking help resolving such delays.

CIA Retirement and Disability System:  The legislation authorizes $290 million in Fiscal Year 2010 for the CIA Retirement and Disability System.

Prohibit Unconstitutional Activities:  The bill prohibits any intelligence activity that is not otherwise authorized by the Constitution and the laws of the United States.

Penalties for Disclosure:  The legislation would increase the criminal penalties for individuals with authorized access to classified information who intentionally disclose any information identifying a covert agent, if those individuals know that the United States is taking measures to conceal the covert agent's intelligence relationship to the United States.  Under current law, the maximum sentence for disclosure of a covert agent is 10 years-the bill increases that maximum sentence to 15 years.

Guantanamo Bay Detainees:   H.R. 2701 prohibits the transfer or release of Guantanamo Bay detention facility detainees to the United States until 120 days after the date that the President submits to Congress a "plan" that proposes what the final disposition of these detainees should be.  The bill also requires that the DNI make available an unclassified summary of threats posed by Uighur detainees currently or formerly held at Guantanamo Bay.

Interrogation Techniques:   The bill prohibits the use of any funds for payment to any contractor to conduct the interrogation of a detainee in the custody of the CIA.  The DNI could grant a waiver if the CIA Director determines that no employee of the federal government is capable and available to conduct the interrogation and that the interrogation is in the U.S. national interest.

H.R. 2701 requires the CIA Director to establish guidelines to ensure that interrogations of detainees in CIA custody are recorded in video form, and that the video recording and attendant audio recording of such interrogation is maintained for a specified period of time.

Contractors:  The bill requires the DNI to prepare an annual assessment of the personnel and contractor levels for each element of the Intelligence Community for the subsequent fiscal year.  The measure also requires the DNI to provide a report on the use of contractors in the Intelligence Community.  This report would include a description of guidance issued by agencies on the hiring, training, security clearance, and assignment of contract personnel; an assessment of costs incurred or savings achieved by awarding contracts for the performance of specific functions instead of using full-time government employees; and an estimate of the number of contracts and the number of contract personnel performing intelligence functions.

Education:  The provision provides permanent authorization for the Pat Roberts Intelligence Scholars Program.  This program provides financial assistance to students who pursue studies in critical language specialties, area studies, and technical and scientific specialties.  The bill also modifies the Stokes Educational Scholarship Program, which was created for the National Security Agency to help undergraduate students develop critical skills necessary to the intelligence community-extending the program to include graduate students.  Finally, H.R. 2701 directs the DNI to establish a pilot program to expand the National Security Education Program/Boren Scholars Program to include intensive language instruction for five high-priority African languages (Somali, Hausa, Amharic, Tigrinya, and Kituba).

 

 

Background

Background:  Several portions of this bill are classified-the classified annex to the legislation contains specific funding and personnel levels for intelligence programs.  This annex is available to Members in Room H-405 of the Capitol.  Unlike in previous years, this legislation apparently contains no earmarks.

The bill authorizes Fiscal Year 2010 programs and funding levels for the Intelligence Community, as well as foreign intelligence activities of Department of Defense, Federal Bureau of Investigation, State Department, and Department of Homeland Security.  The United States Intelligence Community consists of 16 agencies including the Central Intelligence Agency (CIA), the Defense Intelligence Agency (DIA), the National Security Agency (NSA), and the National Reconnaissance Office (NRO). 

Congress has recently passed intelligence authorization bills, but none has been enacted since Fiscal Year 2005 due to policy disagreements with the Bush Administration.  Actual funding for the Intelligence Community is appropriated through defense spending bills.

Concerns:  Republican Committee Members have "significant reservations with the bill in its current form that force us to oppose it," according to the Minority Views accompanying H.R. 2701.  Specifically, some Members may have the following concerns:

Fort Hood Flaws:  The bill does not address critical intelligence flaws revealed after the Fort Hood shooting or the failure by the Administration to fix them.

Interrogation:  The bill does not address the Administration's uncoordinated handling of decisions regarding interrogation of high-value detainees.

PATRIOT Act:  The legislation would not address the impending expiration of PATRIOT Act provisions.  On February 28, 2010, the so-called "library provision," the roving wiretaps provision, and the "lone wolf" surveillance language are scheduled to expired.

FISA:  The bill would not provide a critically needed clarification of FISA authorities.

Congressional Briefings:  The previous fiscal year's intelligence authorization bill included a bipartisan provision making amendments to the congressional notification procedures of the National Security Act of 1947.  This provision stated that each Committee Member be provided with information briefed to the Committee, unless the President requests and justifies limits to such information.  In the event of such a request, the Chairman and Ranking Member would determine whether and how to limit access to such material within the Committee.  In the absence of a joint agreement, the information would be limited.

This language was removed from H.R. 2701 and replaced with a provision that requires the committees and the Administration to develop written procedures for carrying out notification, but does not specify what should be in the procedures or what the practical effect is if the procedures conflict with one another.  The language also fails to provide a mechanism for ensuring that decisions and procedures adopted within the Committee are made on a bipartisan basis and does not create a statutory presumption that all Committee Members be briefed.  At markup, the Majority defeated a Republican amendment which would have replaced this section with the bipartisan language from last year's bill.

Members may be concerned that this provision provides political cover for Speaker Pelosi's explanation regarding briefings on sensitive intelligence issues.

Release of Unclassified Information:  At markup, the Majority defeated a Republican amendment that would have provided for the release of unclassified versions of finished intelligence products assessing the information gained from detainee reporting after the September 11 attacks.  Some Members may be concerned that the defeat of this amendment reduces transparency in the Intelligence Community and provides partisan political cover for the Majority.

National Drug Intelligence Center:  Some Members may be concerned that at markup a GOP amendment was defeated which would have funded the closure of the National Drug Intelligence Center (NDIC) in Pennsylvania.  Many consider the NDIC to be a controversial and questionable effort within the Intelligence Community.  Since its inception, the NDIC has spent more than $400 million in taxpayer dollars with little verifiable results.  The Bush Administration recommended budgeting the facility for closure and shifting its efforts to the more appropriately located El Paso Intelligence Center.

Detainees:  H.R. 2701 glosses over the issue of the disposition of the Guantanamo Bay detainees in light of the President's decision to close the facility without a plan.  The bill contains no outright prohibition on using intelligence funds to bring Guantanamo detainees into the U.S.  At markup the Majority defeated a Republican amendment barring intelligence funds from being used to bring detainees to the U.S.

Videotaping:  Members may be concerned that the bill requires the CIA to videotape interrogations of detainees.  These tapes could pose severe logistical and security problems should they ever become lost or stolen-which is especially troublesome for interrogations conducted at remote locations.  A GOP amendment to strip this provision from the bill was defeated along a party line vote.

GAO Access:  The bill would require the Director of National Intelligence to provide Government Accountability Office (GAO) employees with access to all information that the GAO Comptroller General deems necessary to an investigation requested by an intelligence committee.  This may be an unnecessary expansion given that all Intelligence Community agencies have Inspectors General capable of such investigations.  This provision would give GAO access to the most sensitive national security information without placing restrictions on how it uses this information-GAO is not subject to the Rules of the House or the Committee on Intelligence on this matter.  A GOP amendment to strip this provision from the bill was defeated on party lines.

Reporting:  Some Members may be concerned that this bill requires at least 41 new reports and Congressionally Directed Actions of the Intelligence Community.

 

 

Cost

The Congressional Budget Office (CBO) estimates that implementing certain unclassified provisions of H.R. 2701 would cost $669 million over five years, subject to appropriations.

 

Amendments

1.)    Rep. Reyes (D-TX) Manager's Amendment:  The amendment would alter the funding and personnel totals for the Intelligence Community Management Account, revise language in Section 321 to reform the process for reporting on covert action, and add a termination date for a new reporting requirement on foreign language proficiency in the Intelligence Community.

The Manager's amendment would also make technical changes to the Government Accountability Office (GAO) audit provisions of Section 335, including language that allows any committee of jurisdiction to request a GAO report concerning an intelligence matter.  The amendment would add a subsection to the GAO audit provisions meant to ensure proper handling of classified material.  Members may be concerned that GAO would not be subjected to the same rules relating to protection of intelligence sources and methods and release and dissemination of materials, and provisions of the amendment could be interpreted to expand jurisdiction of other committees to order review of intelligence community activities contrary to the provisions of House rules.

 The amendment would direct the DNI to create a program for funding Historically Black Colleges and Universities and providing grants for courses which meet intelligence community needs.  The amendment would also direct the Inspector General of the Intelligence Community to analyze the over-classification of intelligence.

The amendment would define "cruel, inhuman, and degrading" treatment in intelligence interrogations and provides a penalty of up to 15 years in prison for the use of this treatment during an interrogation.  It would also provide a criminal penalty of up to five years in jail for medical professionals who enable such activities.

The amendment would also direct the FBI Director to consult with the Secretary of State in its review of extraterritorial jurisdiction of U.S. law.  The amendment would modify a requirement for CIA Inspector General investigations into covert actions and removes a requirement for a Senate confirmation for the NSA General Counsel.  The amendment also removes a statutory NSA Inspector General and finally makes additional technical changes to the underlying bill and requires several additional reports.

2.)   Rep. Hoekstra (R-MI):  Would require the Director of the CIA, within 30 days, to publicly issue an unclassified version of the CIA Inspector General's report entitled "Procedures Used In Narcotics Airbridge Denial Program in Peru, 1995-2001," dated August 25, 2008.

3.)  Rep. Hastings (D-FL):  Would require the Director of National Intelligence to submit to Congress a report on the plans of each element of the community to increase diversity within that element.

4.)  Rep. Rogers (R-MI):  Would prohibit funds in the bill from being used to implement the FBI's Field Office Supervisory Term Limit Policy requiring the mandatory reassignment of a supervisor after a specific term of years.

5.)  Reps. Eshoo (D-CA), Tierney (D-MA), Boren (D-OK), Schakowsky (D-IL), Thompson (D-CA), Holt (D-NJ), Rogers (R-MI) and Myrick (R-NC):  Would require the Director of National Intelligence to establish an intelligence community-wide conflict of interest regulation, to establish a community-wide process for checking outside employment for conflicts of interest, and to submit an annual report to the intelligence committees on all outside employment activities that were approved in the last year.  The amendment would also prohibit intelligence community government employees from owning companies that sell skills related to their government service.

6.)  Rep. Conaway (R-TX):  Would express the sense of Congress that it is imperative that intelligence community-wide auditability be achieved as soon as possible and that the National Reconnaissance Office should be commended for achieving a clean audit.

7.)  Rep. Arcuri (D-NY):  Would require the President to submit detailed notifications to Congress on current and newly-created cybersecurity programs.

8.)  Rep. Burton (R-IN):  Would express the sense of Congress honoring members of the Central Intelligence Agency for their dedication and expressing appreciation for their role in combating terrorism and crucial support of military operations.

9.)  Reps. Holt (D-NJ) and Bartlett (R-MD):  Would create a commission to investigate the federal government's handling of the 2001 anthrax letter attacks and subsequent FBI investigation of those attacks.

10.)  Reps. Castle (R-DE) and Lynch (D-MA):  Would require the President to submit to Congress the report required under section 6303(a) of the Intelligence Reform and Terrorism Prevention Act of 2004 (regarding international financing of terrorism).

11.)  Rep. Walz (D-MN):  Would require the intelligence community to educate security clearance adjudicators on post-traumatic stress disorder in combat veterans as each component agency sees fit.

12.)  Rep. Schauer (D-MI):  Would require the Director of National Intelligence to investigate and report to Congress regarding the attempted Christmas Day terrorist attack on Northwest flight 253 and measures the intelligence community has taken or will take to prevent any intelligence failures within or between elements of the intelligence community.