S. 3454: Intelligence Authorization Act of Fiscal Year 2013

S. 3454

Intelligence Authorization Act of Fiscal Year 2013

Sponsor
Sen. Bernard Sanders

Date
December 31, 2012 (112th Congress, 2nd Session)

Staff Contact
Communications

Floor Situation

On Monday, December 31, 2012, the House is scheduled to consider S. 3454 under a suspension of the rules, requiring a two-thirds majority vote for passage.  The bill was introduced by Sen. Diane Feinstein (D-CA) on July 30, 2012, and referred to the Select Committee on Intelligence.  The bill was passed in the Senate with an amendment by voice vote on December 28, 2012.  The House approved its version of the Intelligence Authorization Act for Fiscal Year 2013, H.R. 5743, on May 31, 2012, by a vote of 386-28.

Bill Summary

S. 3454 would authorize the intelligence activities of the United States government for Fiscal Year 2013.  This bill would fund the requirements of the men and women of the Intelligence Community (military and civilian), many of whom directly support the war zones or are engaged in other dangerous operations to keep Americans safe.  These activities are intended to enhance national security, support and assist the Armed Forces, and facilitate U.S. foreign policy. 

The bill would provide budget authority and personnel manning levels for the conduct of intelligence activities in the amounts specified in the Classified Schedule of Authorizations, as incorporated by reference in section 104. 

The bill would authorize $542 million in FY2013 for the Director of National Intelligence’s (DNI) Intelligence Community Management Account, as well as 827 full-time personnel for this account.  This is the principal source of funding for the Office of the Director of National Intelligence and provides resources for the coordination of programs, budget oversight, and management of the intelligence agencies.  Additionally, the bill would provide additional flexibility for the DNI in managing the civilian personnel of the Intelligence Community. 

The bill would also authorize appropriation of $514 million for the Central Intelligence Agency Retirements and Disability System for FY2013.

The following are additional titles and selected provisions of the bill:

 

TITLE III--GENERAL INTELLIGENCE COMMUNITY MATTERS

Section 306 would authorize the Inspector General of the Intelligence Community (IC IG) to designate certain officers or employees in investigative positions within the Office of the Inspector General as law enforcement officers solely for the purpose of certain federal law enforcement retirement and pension benefit laws. The DNI requested this authority for the benefit of the CIA Inspector General (CIA IG) based upon the difficulties the CIA IG faces in recruiting and retaining experienced professional investigators from among the law enforcement and inspectors general community. The bill includes this authority for the CIA IG in Section 401. Section 306 clarifies that this same authority also is available to the IC IG.

Section 308 would eliminate eight reports that were burdensome to the Intelligence Community when the information in the reports could be obtained through other means or was no longer considered relevant to current concerns.  This section would also modify the period for two reporting requirements.

 

TITLE IV--MATTERS RELATING TO THE CENTRAL INTELLIGENCE AGENCY

Section 401 would authorize the CIA IG to designate certain officers or employees in investigative positions within the Office of the Inspector General as law enforcement officers solely for the purpose of certain federal law enforcement retirement and pension benefit laws. (The DNI requested this authority for the benefit of the CIA IG based upon the difficulties of the CIA IG in recruiting and retaining experienced professional investigators from the law enforcement and inspectors general community.)

 

TITLE V--PREVENTING UNAUTHORIZED DISCLOSURES OF CLASSIFIED INFORMATION

Section 501 would require government officials responsible for making certain authorized disclosures of national intelligence or intelligence related to national security to notify the congressional intelligence committees concurrent with such disclosures.

This provision is intended to ensure that the intelligence committees are made aware of authorized disclosures of national intelligence or intelligence related to national security that are made to media personnel or likely to appear in the press, so that, among other things, these authorized disclosures may be distinguished from unauthorized ‘leaks.’

Section 504(a) would direct the DNI to prepare an assessment to be provided to the congressional intelligence committees, within 120 days, regarding the feasibility of extending the use of the polygraph, the benefits of extending automated insider threat detection capabilities, and actions that could be taken to address improper classification.

Section 504(b) would direct the IC IG to perform an assessment, within 120 days, of the effectiveness of the process used by each element of the Intelligence Community for preventing, detecting, and investigating unauthorized disclosures of classified information and describe any best practices that could be replicated throughout the Intelligence Community.

Section 505 would prohibit certain persons possessing an active security clearance from entering into contracts or other binding agreements with the media in order to provide analysis or commentary on matters concerning classified intelligence activities or intelligence related to national security. Section 505 would also prohibit certain persons who formerly possessed an active security clearance for access to top secret, sensitive compartmented information from entering into such contracts or agreements for a period of one year after they leave government service.

This provision is intended to restrict the practice of current and former cleared government personnel appearing in media broadcasts in order to discuss matters concerning classified intelligence activities.

Section 506 would provide that for each element of the Intelligence Community, only the Director and Deputy Director of such element and individuals in the offices of public affairs who are specifically designated by the Director may provide background or off-the-record information regarding intelligence activities to the media.

Section 506(b) would clarify that this section does not prohibit an officer or employee of an element of the Intelligence Community from providing authorized, unclassified, on-the-record briefings to the media, or to any person affiliated with the media. Thus, this provision would not prohibit an Intelligence Community official from providing necessary threat or other unclassified information to the public, provided the official was acting in his or her official capacity and was authorized to speak to the media on-the-record.

Section 508 would require the Attorney General to prepare a report for the congressional intelligence and judiciary committees, within 180 days, on the effectiveness of and potential improvements to the process for investigating and prosecuting unauthorized disclosures of classified information and to report on potential improvements to this process. In the report, the Attorney General would be required to address potential modifications to the process used by elements of the intelligence community to submit crimes reports of unauthorized disclosures of classified information to the Attorney General, potential modifications to the policies of the Department of Justice on issuing subpoenas directed at members of the news media, and potential modifications to the Classified Information Procedures Act.

Section 509 would require that the head of each element of the Intelligence Community designate an insider threat program manager with responsibility for developing a comprehensive insider threat program management plan.

The Committee has determined that existing intelligence community efforts to counter insider threats are not centrally managed so as to effectively allocate resources between and among the disciplines of counterintelligence, physical security, information security, and human resources.

 

TITLE VI--OTHER MATTERS

Section 601 would authorize the Homeland Security Intelligence Program (HSIP) within the Department of Homeland Security for activities of the Office of Intelligence and Analysis (OIA) that serve predominantly a departmental mission. The OIA is currently funded through the NIP. The Committee supports the request of the Secretary and DNI to fund OIA through the NIP and a new HSIP but is continuing to study the question of whether other intelligence activities of the Department should be included in the HSIP. The Committee intends to continue oversight of and authorize the HSIP.

Section 604 would require the Attorney General to provide certain information concerning opinions of the Office of Legal Counsel (OLC) at the Department of Justice to the congressional intelligence committees.

Section 604(a) would require the Attorney General, in coordination with the DNI, to provide the congressional intelligence committees with a copy of every classified OLC opinion that was provided to an element of the Intelligence Community on or after September 11, 2001.

Section 604(b) would require the Attorney General, in coordination with the DNI, to provide the congressional intelligence committees with an annual listing of every OLC opinion provided to an element of the Intelligence Community, whether classified or unclassified.

Section 604(c) would provide an exception to the disclosure requirements in sections 604(a) and (b) where the President determines that it is essential to limit access to a covert action finding under section 503(c)(2) of the National Security Act. In such cases, the President may limit access to information concerning such a finding that is subject to disclosure under subsection (a) or (b) to those members of Congress who have been granted access to the relevant finding.

Section 604(d) would provide a second exception to the disclosure requirements in sections 604(a) and (b) where the President determines that information subject to disclosure under subsection (a) or (b) is subject to Executive privilege. In such cases, the Attorney General must notify the congressional intelligence committees, in writing, of the legal justification for the assertion of the privilege prior to the date by which the opinion or listing is required to be disclosed.

Senate report 112-192 notes: “The Committee regularly conducts oversight of intelligence activities that are the subject of one or more OLC legal opinions. The Committee regards access to these legal opinions as necessary to the performance of its oversight functions and often requests access to such opinions when the committee is made aware of their existence.

“While the Committee in general is kept apprised of the legal basis for U.S. intelligence activities, neither the Department nor the Intelligence Community routinely accommodates the Committee's requests for full OLC opinions. Furthermore, oral or written summaries of the legal basis for U.S. intelligence activities often do not provide the level of detail necessary for the Committee to fully carry out its oversight functions, as such summaries often omit relevant information, including the application of law to the specific facts present in a particular intelligence activity.

“Finally, neither the Department nor the Intelligence Community regularly advises the Committee of the existence of OLC opinions that are relevant to the Committee's oversight functions. This presents a particular impediment to the Committee's oversight function, as the Committee cannot request access to legal analysis when it is not made aware that such analysis exists.

“The Committee recognizes that some OLC opinions are entitled to Executive privilege. The Committee further recognizes that access to information concerning certain compartmented covert action programs must be restricted. Therefore, subsections 604(c) and (d) would provide exceptions for such cases.”

Background

The following are committee comments contained in the Senate report (112-192) accompanying the legislation:

Unauthorized Disclosures of Classified Information

The Committee is gravely concerned by both the quantity and substance of unauthorized disclosures of classified information (‘leaks’) that continue to appear in media. The damage caused by such unauthorized disclosures cannot be overstated. Too many intelligence sources and methods have been compromised, ranging from counterintelligence capabilities to intelligence assets to foreign government relationships. As a result, terrorists and foreign adversaries have learned to improve their tactics, and American lives and the American national interest have been placed at greater risk.

The Committee also recognizes that such leaks are not limited to any particular agency, department, or branch of government. Moreover, the Committee is aware that the publication of classified information is not always a direct result of leaks by government insiders. Journalists may obtain such information from foreign sources or eyewitness (or a combination of sources). Or, as is sometimes the case, journalists may report inaccurate information that only appears to be classified.

The Committee-reported bill includes several legislative provisions that will help to prevent and detect unauthorized disclosures of classified information, identify those responsible, and ensure that they are appropriately disciplined. The Committee will continue to pay close attention to the issue of `leaks' and give careful consideration to other legislative measures that may be effective.

The problem of leaks, however, does not readily lend itself to any single set of solutions. Measures taken must be balanced as efforts to prevent leaks by limiting access to classified information may also work to limit the availability of vital intelligence to analysts and policy makers who have a need to know. Aggressive efforts to identify and prosecute leakers must be tempered by the need to protect rights to freedom of speech, freedom of the press, and due process that are enshrined in the Bill of Rights. Therefore, the Committee calls upon the Executive branch to be vigilant in the protection of classified information, to aggressively but responsibly investigate all unauthorized disclosures of classified information within the bounds of the law, and to prosecute or otherwise punish those found to be responsible for such disclosures. As is its mandate, the Committee will oversee these measures to ensure that efforts to stem the tide of leaks remain a priority.

Finally, the Committee calls upon those in all branches of government who have been entrusted with classified information to be mindful that they have taken an oath to protect that information, that they are duty bound to honor that oath, and that the security of the nation rests on their doing so.

Offices of Inspectors General Funded in the National Intelligence Program

The Committee is concerned about the stability of funding, personnel, and resources for the Offices of Inspectors General (OIGs) within the Intelligence Community and the policies and practices that may impede the mission or independence of these offices.

To ensure that agencies do not realign or cut resources from the vital oversight activities of the OIGs once Congress has determined an OIG's funding and personnel levels, the Committee considers these levels to be congressional interest items. In addition, the Committee expects that the DNI and other heads of intelligence agencies will identify the budgets of the OIGs within the agencies as distinct projects in future budget requests.

Auditability

While the Committee recognizes the Intelligence Community's notable efforts towards audibility in recent years, much remains to be achieved. Auditability is not just the responsibility of Intelligence Community financial management personnel--there must be a sustained commitment across the leadership of Intelligence Community agencies to align the resources and personnel efforts necessary to achieve success. Additionally, contracting officers, approving officers and budget officers must fully adopt the pursuit of auditability as a personal responsibility.

The National Reconnaissance Office (NRO) has received an unqualified audit opinion from its independent auditors for three years. In order for the other major agencies of the Intelligence Community to achieve unqualified audit opinions by 2016, critical work must be accomplished in Fiscal Year 2013. This requires the leadership of the ODNI, CIA, DIA, NSA and NGA to inculcate a sense of urgency, not just among financial managers, but also across the entire organization, to assure continued efforts are made to reach the ultimate goal of achieving ‘clean’ audit statements.

Department of Defense Intelligence Analysis

As part of its oversight activities, the Committee reviews analysis produced by intelligence elements across the United States Government. The Committee is pleased to have daily access to the Joint Staff J2 Daily Intelligence Briefing but is concerned that daily and periodic intelligence produced by the Joint Intelligence Operations Centers (JIOCs) of the combatant commands (COCOMs) is not being provided to the Committee on regular basis.

The COCOM JIOCs make a significant contribution to the government's overall intelligence analysis. Each of the regional and functional COCOMs are members of the Defense Intelligence Analysis Program managed by the DIA with clearly defined all-source analytic responsibilities. The intelligence products of the COCOM JIOCs should be made available to the congressional intelligence committees. The Committee thus directs the Director of DIA and the Under Secretary of Defense for Intelligence to ensure that the congressional intelligence committees are regularly provided with daily and periodic intelligence products from the JIOCs.

Space Launch

The Committee remains concerned over space launch costs, particularly of the Air Force's Evolved Expendable Launch Vehicle (EELV) program. Costs have increased dramatically over several years. Fortunately, actions by both the United Launch Alliance (ULA) and the U.S. Air Force seem to have curtailed this cost growth in the near term. The Committee encourages both these groups to continue to seek efficiencies in the EELV program.

The Air Force and the NRO remain committed to the EELV program and are entering into agreements to buy Atlas-V and Delta-IV rockets in multi-booster blocks in an attempt to stabilize the EELV industrial base and garner further savings. However, at least one new entrant is demonstrating enough potential to enable competition.

The Committee believes it is in the nation's economic and national security interests to promote competition among U.S. space launch providers, and to do so as soon as potential competitors are viable.

The Committee understands that costs advertised by new space launch entrants may increase as those companies integrate rigorous Air Force processes, which, while suited for ensuring high levels of mission assurance, add substantial costs compared to those used in the commercial space launch sector.

One private space launch provider, SpaceX, has spent a total of $1.2 billion since its inception in 2002. This amount includes developing the Falcon 1 rocket, Falcon 9 rocket, and Dragon capsule; building out the manufacturing facility in Hawthorne, California, the Rocket Development Facility in McGregor, Texas, and the launch complex in Kwajalein; construction to date of Space Launch Complex 40 at Cape Canaveral; and total costs of multiple Falcon 1 flights and three Falcon 9 flights. The U.S. government has much to gain with the success of SpaceX and the commercial orbital transportation services and cargo resupply services programs are infusing critical investments in the company.

The current EELV launch capability contract totals approximately $1.2 billion per year just to maintain the infrastructure to launch an EELV. Launch costs for each satellite are additive to that amount.

The Committee believes the government should continue to position itself for the use of alternative launch providers pending demonstrations of reliability and performance in the EELV program. It is the hope that the government can reduce costs through competition while maintaining a strong and healthy industrial base to ensure access to space for national security missions.

As the NRO works with alternative providers, the Committee directs the Office to place each of its planned launches into one of the three categories in the risk-based certification framework.

Cost

There was no Congressional Budget Office (CBO) cost estimate available for this legislation.