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

H.R. 2701

Intelligence Authorization Act for Fiscal Year 2010

Date
September 29, 2010 (111th Congress, 2nd Session)

Staff Contact
Communications

Floor Situation

The Senate Amendment to H.R. 2701 will be considered on the floor of the House on Wednesday, September 29, 2010, under a closed rule.  The legislation was introduced by Rep. Silvestre Reyes (D-TX) on June 4, 2009. 

The House passed H.R. 2701 on February 26, 2010, by a vote of 235—168.  The Senate approved the bill with an amendment by unanimous consent on September 27, 2010.

Bill Summary

The Senate Amendment to H.R. 2701 would authorize intelligence and intelligence-related activities of the U.S. Government and establish additional intelligence-related offices and programs for Fiscal Year 2010.  A summary of highlighted provisions of this controversial legislation is below:

Authorization of Appropriations:  The bill would allow appropriated funds to be obligated or expended for intelligence or intelligence-related activities for Fiscal Year 2010 that are authorized by, and reported to, the appropriate congressional committees.  This legislation does not prescribe specific authorization levels for intelligence programs.

Intelligence Community Personnel Matters:  The bill would allow increases in employee compensation and benefits authorized by law.  H.R. 2701 would also enhance flexibility in non-reimbursable details of federal government employees to the intelligence community through the National Intelligence Program.  The bill would allow the Director of National Intelligence (DNI) to increase the rate of basic pay for critical intelligence community positions in certain circumstances.  H.R. 2701 would require the DNI to prepare a detailed annual personnel level assessment that would be reported to Congress.

The bill would require the DNI to issue regulations prohibiting an officer or employee of the intelligence community from outside employment if it creates a conflict of interest.  The DNI would submit to the intelligence committees a report describing all outside employment for intelligence community employees that was authorized annually.

Intelligence Community Education Programs:  H.R. 2701 would provide 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. 

The bill would allow the DNI to carry out grant programs to enhance the recruitment and retention of an “ethnically and culturally diverse intelligence community with capabilities critical to the national security interest of the United States.”  Finally, H.R. 2701 would direct 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).  The bill authorizes $2 million for this purpose.

Congressional Oversight, Plans, and Reports:  The bill would modify congressional notification procedures for covert action.  The bill would allow intelligence officials to continue the practice of giving “limited notification” of extremely sensitive covert operations to the so-called “Gang of Eight”—the chairmen and ranking members of the House and Senate intelligence committees, as well as the Speaker of the House, House Minority Leader, Senate Majority Leader and Senate Minority Leader. 

The bill would require the president to brief all members of the congressional intelligence committees within 180 days of certain intelligence actions, but allows the president to limit the briefings if he provides an explanation as to why the findings should not be disclosed because of "extraordinary circumstances affecting vital interests of the United States."  The legislation would stipulate that, if a briefing on a finding or notice is restricted to the Gang of Eight, the president would be required to notify both intelligence committees and provide them with a general description of those findings.

H.R. 2701 would establish certain conditions under which the president is required to provide information on an intelligence program to the congressional intelligence committees.  For example, when determining whether an activity constitutes a "significant undertaking" for purposes of notifying the committees, the president would have to consider whether the activity involves significant risk of loss of life, requires an expansion of existing authorities, results in the expenditure of significant funds or other resources, or risks disclosing intelligence sources or methods, including damaging the diplomatic relations of the U.S.

The bill would require the president to maintain a record of the members to whom a finding or notice has been reported and when such notifications were made.

Furthermore, the bill would require the DNI to issue a directive governing the access of the Comptroller General (GAO) to information in the possession of the intelligence community.  This directive would have to be submitted to Congress by May 1, 2011.  The directive would become effective 60 days after the directive is submitted to Congress.

Finally, H.R. 2701 would require the intelligence community to submit numerous reports to Congress on matters including detention and interrogation activities, terrorist recidivism of Guantanamo detainees, and intelligence community contractors. 

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

Inspector General:  The bill would establish 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.  The 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.

Foreign Intelligence and Information Commission:  The bill would establish in the legislative branch a Foreign Intelligence and Information Commission to evaluate systems and processes at the strategic, interagency level and provide recommendations accordingly.  The commission would be composed of 10 members appointed by congressional leadership and the DNI.  The commission would report within one year on final evaluations and recommendations, and would terminate 60 days later.

Background

The bill authorizes Fiscal Year 2010 programs 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 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 Executive Branch.  Actual funding for the Intelligence Community is appropriated through defense spending bills.

Member Concerns:  Members may have several serious concerns with this legislation, some of which are described below.

 •  Guantanamo Detainees: Current laws that prohibit bringing Guantanamo detainees into the United States expire on September 30, 2010.  The bill contains no outright prohibition on using intelligence funds to bring Guantanamo Bay detainees into the U.S., or to prohibit secret payments to foreign countries using intelligence funds to accept Guantanamo Bay detainees.  This legislation also omits a Republican amendment—agreed to on a bipartisan basis—to evaluate potential threats from released Uighur detainees.  Members may concerned that a vote for this legislation would represent a vote to allow Guantanamo detainees to be transferred into the U.S.

•  Earmarks:  The bill does not include language from a previous Republican amendment to prohibit the use of funds authorized in the bill for any earmarked purpose, and effectively authorizes earmarks of the Appropriations Committee.

•  Prosecution of CIA Employees: The bill would allow for potential Justice Department action against intelligence professionals who did what the President—and congressional leaders including Speaker Pelosi—asked them to do and ratified.

•  Covert Action Authorities: The bill does nothing to provide safeguards for certain covert action activities that could impact U.S. citizens.

•  Intelligence Flaws Revealed After Fort Hood Shooting: The bill contains no substantive provisions to address critical information sharing flaws brought to light in the aftermath of the Fort Hood shooting.

•  Interrogation of High Value Detainees: The bill contains no substantive provisions to make intelligence collection a priority in the interrogation of high value detainees, or to address the lack of coordinated decision making with respect to interrogation of high value detainees.

•  FISA Authorities: The bill does nothing to provide critically needed clarification of authorities under the Foreign Intelligence Surveillance Act (FISA).

•  Administration of Miranda Warnings: The bill omits a Republican amendment—supported on a bipartisan basis and in the House—to prohibit giving Miranda warnings to foreign terrorist suspects in foreign countries in order to protect intelligence collection.


Homeland Security Ranking Member Peter King (R-NY): “The bill that Speaker Pelosi has decided to push is deficient in many respects.  The Democrats’ failure to address a number of critical security matters in this bill amounts to negligence on their part.  Notably, this bill fails to ensure that Guantanamo terrorists stay at Guantanamo and out of the U.S.  This bill fails to mandate that terrorists such as Khalid Sheik Mohammed, the admitted mastermind of the 9/11 attacks, be tried by a military commission.  This bill fails to prohibit the issuance of Miranda warnings to foreign terrorists.” (Statement, 9/28/2010)

Cost

The Congressional Budget Office has not produced a full score for the Senate-approved version of this bill as of press time.