Intelligence Authorization Legislation for
FY2014 and FY2015: Provisions, Status,
Intelligence Community Framework
Anne Daugherty Miles
Analyst in Intelligence and National Security Policy
November 20, 2014January 14, 2015
Congressional Research Service
7-5700
www.crs.gov
R43793
Intelligence Authorization Legislation for FY2014 and 2015: Provisions and Status
Summary
AnTwo Intelligence Authorization Act (IAA) for Fiscal Years (FY) 2014 and 2015 (H.R. 4681) was
considered in May 2014 and passed by the House but not by the Senate. Instead, both chambers
passed, and the President signed an IAA for FY2014 (P.L. 113-126) in July 2014. At this time, an
IAA for FY2015 (S. 2741) is under consideration by the Senate. If it passes, it will be referred to
the HouseActs (IAAs) were passed in 2014. The IAA for Fiscal Year (FY)
2014 (P.L. 113-126) was passed in July and an IAA for FY2015 (P.L. 113-293) was passed in
December. This report examines selected provisions in the legislation (those summarized below)
and provides an
intelligence community framework in the Appendix.
Summary of Selected Legislative Provisions
IAA FY2014 (Enacted) and S. 2741 (Proposed)
Title
IAA FY2014 (P.L. 113-126)
I. Intelligence
Activities
Section 104Section104 supports the Intelligence Advanced
Research Projects Activity.
III. General
Matters
Section 305 codifies provisions already in E.O.
12333 and gives responsibility for designating
functional managers (the directors of CIA,
NGA,
NSA, and DIA) to the President.
Section 309 directs the heads of the DNI, CIA,
DIA, NSA, NRO, and NGA to undergo full
financial audits beginning with FY2014 financial
statements.
Section 314 directs the DNI to merge the
Foreign Counterintelligence Program into the
General Defense Intelligence Program.
IAA FY2015 (S. 2741)
Section 314 directs the DHS Under Secretary
for Intelligence and Analysis to report to
Congress regarding the advisability of including
the budget request for all intelligence activities
of each component that predominantly
supports departmental missions in the
Homeland Security Intelligence Program.
Several provisions have to do with retention of
data on U.S. persons, and intelligence related
relationships with Ukraine, the Russian
Federation and North Korea.
Section 321 requires that the Attorney General
provide the congressional intelligence committees
a listing of every opinion of the Office of Legal
Counsel that has been provided to an element of
the IC, whether classified or unclassified.
IV. Matters
Relating to
Elements of the
IC
Subtitles A and B change the appointment
process for four key individuals, the Directors of
NSA and NRO and the Inspectors General of
each agency, making all four presidential
appointments with the advice and consent of the
Senate.
V. Security
Clearance
Reform
Section 501 requires continuous monitoring to
determine eligibility for access to classified
Section 321 requires that the Attorney General
provide the congressional intelligence
committees a listing of every opinion of the
Office of Legal Counsel that has been provided
to an element of the IC, whether classified or
unclassified.
IAA FY2015 (P.L. 113-293)
Section 303 requires a National Intelligence
Strategy.
Section 309 concerns retention of data on U.S.
persons acquired incidentally to an investigation of
foreign persons.
Section 310 permits individuals to appeal an adverse
security clearance action that may be a reprisal for a
protected whistleblower disclosure.
Section 324 requires a report on DHS’s Homeland
Security Intelligence Program and National
Intelligence Program.
Section 327 directs the DNI to provide information
about the number of contractors and their
functions for each element of the IC as part of the
annual authorization process.
Section 330 requires a counterterrorism strategy to
disrupt, dismantle, and defeat al-Qaeda and its
affiliated or associated groups.
Several sections concern intelligence-related
relationships with Ukraine, the Russian Federation,
and North Korea.
IV. Matters
Relating to
Elements of the
Intelligence
Community
Four key individuals, the Directors of NSA and
NRO and the Inspectors General of each
agency, now require presidential appointments.
V. Security
Clearance Reform
Section 501 requires continuous monitoring in
association with access to classified information.
Section 504 requires the DNI to report to
Congress each year, through 2017, on the
reciprocal treatment of security clearances.
VI. Intelligence
Community
Whistleblower
Protections
Section 601 creates a new Section 2303A of Title
Title 5 of the United States Code, modeled on
protections for FBI employees.
Committee
Report Report
Language
Contractor Responsibility Watch List
Congressional Research Service
FIX-ITT (Financial Exchange and Intelligence
Integration)
Intelligence Authorization Legislation for FY2014 and 2015: Provisions and Status
Contents
Introduction...................................................................................................................................... 1
Background ...................................................................................................................................... 1
IAAs for FY2014 and FY2015: Selected Legislative Provisions .................................................... 6
IAA for FY2014 (P.L. 113-126) ................................................................................................ 7
Intelligence Advanced Research Projects Activity (IARPA) .............................................. 7
Functional Managers ........................................................................................................... 8
Financial Auditability .......................................................................................................... 9
Foreign Counterintelligence Program (FCIP) Merged Into General Defense
Intelligence Program (GDIP) ......................................................................................... 10
Enhanced Oversight Measures .......................................................................................... 10
Insider Threats ................................................................................................................... 1213
Security Clearance Reciprocity ......................................................................................... 14
Whistleblower Protections ................................................................................................ 15
Contractor Responsibility Watch List ............................................................................... 16
The House IAA for FY2014-2015 (H.R. 4681): Passed in the House..................................... 17
NSA/IG’s General CounselIAA for FY2015 (P.L. 113-293) ....................................................................................... 17
National Intelligence Strategy (NIS) ................................................................................. 19
Data on U.S. Persons ............................................................................................... 17
The Senate IAA for FY2015 (S. 2741): What’s New? ............. 19
Whistle Blower Protections and Security Clearances ......................................................... 17 20
The Homeland Security Intelligence Program .................................................................. 17
Data on U.S. Persons 20
Regional Issues........................................................................................................... 18
Regional Issues....... 21
Contractor Level Assessments .................................................................................................................. 18 22
Memoranda of Understanding May Improve Intelligence Sharing ................................... 23
Counterterrorism Strategy ................................................................................................. 24
FIX-ITT (Financial Exchange and Intelligence Integration)............................................. 1924
Figures
Figure A-1. Office of the Director of National Intelligence........................................................... 2228
Tables
Table 1. Intelligence Authorizations, FY2000-FY2015 ................................................................... 5
Table 2. Intelligence Authorization Legislation, 113th Congress .................................................... 7
Table 3. Selected Provisions in the IAA for FY2015 (P.L. 113-293) with Corresponding
Provisions in House and Senate Proposed Legislation ............................................................... 18
Table A-1. National and Military Intelligence Programs (NIP and MIP) ...................................... 2632
Table A-2. Intelligence Community Components: NIP and MIP Funding Sources....................... 2733
Appendixes
Appendix. Intelligence Community: In Brief ................................................................................ 2026
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Intelligence Authorization Legislation for FY2014 and 2015: Provisions and Status
Contacts
Author Contact Information........................................................................................................... 2733
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Congressional Research Service
Intelligence Authorization Legislation for FY2014 and 2015: Provisions and Status
Introduction
Permanent, continuing, day-to-day oversight of the U.S. intelligence community (IC) by the two
congressional intelligence committees will soon mark its 40th anniversary.1 The IC’s missions,
responsibilities, capabilities, size, and management have experienced dramatic changes over the
past four decades.2 The congressional oversight committees have played a significant role in
shaping these changes and continue to do so, particularly through their annual intelligence
authorization bills.
In recent years the IC has initiated a transformation from the agency-centric practices of the past
to an “intelligence enterprise”1established3 established on a collaborative foundation of shared services,
mission-centric operations, and integrated mission management to confront its ever growing list
of challenges. The recently released National Intelligence Strategy 2014 lays out the strategic
environment and identifies the scale of what James Clapper, the Director of National Intelligence
(DNI), terms the “pervasive and emerging threats”::”2
While key nation states such as China, Russia, North Korea and Iran will continue to
challenge U.S. interests, global power is also becoming more diffuse. New alignments and
informal networks, outside of traditional power blocs and national governments, will
increasingly have significant impact in global affairs. Competition for scarce resources such
as food, water and energy is growing in importance as an intelligence issue as that
competition exacerbates instability, and the constant advancements and globalization of
technology will bring both benefits and challenges.4
The challenge for this and future Congresses is to help shape intelligence priorities while a more
integrated IC adjusts to new budget realities. Congress has an important role in the oversight of
the agencies responsible for dealing with this altered intelligence environment, and the annual
authorization process represents one of the most important opportunities to exercise this role.
Intelligence authorization legislation does not guarantee effective interagency intelligence efforts,
but proponents of the oversight process maintain that authorization acts are the best lever that
Congress has to address the interagency effort.
Background
The “congressional intelligence committees,” as defined in 50 U.S.C. §401a (6), consist of the
Senate Select Committee on Intelligence (SSCI) and the House Permanent Select Committee on
Intelligence (HPSCI). The intelligence committees were created in the 1970s to conduct
continuous and “vigilant legislative oversight” over the IC to assure (1) “that the appropriate
departments and agencies of the United States provide informed and timely intelligence necessary
for the executive and legislative branches to make sound decisions affecting the security and vital
1
1
The Senate and House intelligence committees were established in 1976 and 1977, respectively.
The Intelligence Community is a federation of 17 separate executive branch agencies that work separately and
together to conduct the activities necessary to produce the intelligence required for the conduct of foreign relations and
the protection of the national security of the United States. For a list of the components, see the Appendix.
3
A term in vogue since 2010—associated with, and frequently used by, DNI James Clapper in reference to the IC. See
Tom Shorrock, “Clapper: Managing the Intelligence Enterprise,” Foreign Policy In Focus, (June 18, 2010), at
http://fpif.org/clapper_managing_the_intelligence_enterprise/. See also ODNI, Office of the Director of National Intelligence,
National Intelligence Strategy 2014, p.
16, at http://www.dni.gov/files/documents/2014_NIS_Publication.pdf.
2
ODNI4
Office of the Director of National Intelligence, “DNI Unveils 2014 National Intelligence Strategy,” ODNI News
Release No. 40-14, September 18, 2014, at
http://www.dni.gov/files/documents/2014_NIS_Publication.pdf.
2
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Intelligence Authorization Legislation for FY2014 and 2015: Provisions and Status
continuous and “vigilant legislative oversight” over the IC to assure (1) “that the appropriate
departments and agencies of the United States provide informed and timely intelligence necessary
for the executive and legislative branches to make sound decisions affecting the security and vital
interests of the Nation,” and (2) “that such activities are in conformity with the Constitution and
laws of the United States.”35 They operate behind closed doors, for the most part, overseeing the
most secret aspects of the U.S. government. The two intelligence committees are the repositories
of most intelligence shared with the Congress. Their secure office and hearing room spaces are
guarded around the clock by Capitol Hill police.46
One of the few windows into the activities of the two intelligence committees is their
authorization legislation and theaccompanying committee reports that accompany them.5 They produce (but
don’t always .7 They produce (but do not always
pass) annual legislation that guides the activities of all seventeen17 U.S. intelligence
components—
providing authorization for critical national security functions. All authorization
bills are
important resource documents in terms of both money and manpower, and the
intelligence bills
are particularly important in this regard. (See the Appendix for an intelligence
IC framework that includes a
list of IC components.)
Separate and distinct from one another, the authorization and appropriations processes determine
budget authority for agencies and programs. The authorization committees establish the necessity,
legitimacy, and intent of agencies and programs. In doing so, authorization is an oversight
function, communicating general guidance, leadership, and priorities and providing legislation and
and direction to agencies.
Appropriations committees determine funding levels for policies and programs previously
authorized. For the most part, the appropriations process provides specific details within the
general guidance and limitations given by authorizations. Cutting funds, adding funds, or
attaching provisions to funding are powerful ways to influence policy decisions. The funding
associated with intelligence is significant. For FY2014 alone, the aggregate amount (base and
supplemental) appropriated to the national and military intelligence programs totaled $67.9
billion.68
The complexity and range of activities the intelligence authorizing committees oversee covers a
wide range. According to a recent House Intelligence Committee report, current legislation:7
provides authorization for critical national security functions, including: CIA personnel and
their activities worldwide; tactical intelligence support to combat units in Afghanistan;
NSA’s [National Security Agency’s] electronic surveillance and cyber defense; global
monitoring of foreign militaries,
weapons tests, and arms control treaties, including use of satellites and radars; real-time
analysis and reporting on political and economic events, such as current events in the Middle
3
5
S.Res. 400 §A.
These secure spaces are known as Secure Compartmented Information Facilities (SCIFs).
57
Other windows into committee operations include occasional open hearings such as the annual threat briefing by the
Director of National Intelligence, reports of committee investigations, and so on. See committee websites:
http://intelligence.house.gov and http://www.intelligence.senate.gov/.
68
For FY2014, the aggregate amount (base and supplemental) appropriated to the national and military intelligence
programs totaled $67.9 billion. (NIP $50.5 billion, MIP $17.4B billion) See Office of the DNI, “DNI Releases Budget
Figure for FY2014 National Intelligence Program,” News Release No. 43-14, October 30, 2014, at
http://www.dni.gov/index.php/newsroom/press-releases/. See also Department of Defense, “DOD Releases Military
Intelligence Program (MIP) Appropriated Top Line Budget for Fiscal Year (FY) 2014,” Release No: NR-550-14,
October 30, 2014, at http://www.defense.gov/releases/. See also CRS Report R42061, Intelligence Spending and
Appropriations: Issues for Congress, by Marshall C. Erwin and Amy Belasco.
7
U.S. Congress, House Permanent Select Committee, 6
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Intelligence Authorization Act for Fiscal Years 2014 and 2015,
report to accompany H.R. 4681, 113th Congress, 2d sess., H.Rept. 113-463, (Washington DC: GPO, 2014), p. 17.
4
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Legislation for FY2014 and 2015: Provisions and Status
satellites and radars; real-time analysis and reporting on political and economic events, such
as current events in the Middle East and Eastern Europe; and research and technology to
maintain the country’s
technological edge.9
The authorizing legislation passed by the intelligence committees has particular power with the
IC agencies because the respective rules that established the intelligence committees provided
that, “no funds would be expended by national intelligence agencies unless such funds shall have
been previously authorized by a bill or joint resolution passed by the Senate [and House] during the
the same or preceding fiscal year to carry out such activity for such fiscal year.”810 In 1985, Section
Section 504 of the National Security Act was tightened to require that appropriated funds
available to an
intelligence agency could be obligated or expended for an intelligence or
intelligence-related
activity only if “those funds were specifically authorized by the Congress for
use for such
activities.”911 If and when intelligence authorization bills fail to pass, the IC relies on
language in
appropriation bills that both authorizes and appropriates funds, until such time as an authorization
authorization bill is passed.1012
In terms of process, each year the House and Senate intelligence committees produce their
respective versions of the Intelligence Authorization Act (IAA). Each committee produces an
unclassified bill, an unclassified report, and a classified “Schedule of Authorizations” (also
known as the “Classified Annex,” or simply “the Annex”) that provide detailed guidance to the
nation’s intelligence agencies. The Annex contains a schedule of authorization budget numbers as
well as committee guidance and requirements that directly pertain to the classified material and
cannot be disclosed publicly.1113 Committee reports state that the Annex “is incorporated by
reference in the Act and has the legal status of public law.”1214 Both intelligence committees make
the Annex available for review by Members of their respective chambers, subject to appropriate
8
9
U.S. Congress, House Permanent Select Committee, Intelligence Authorization Act for Fiscal Years 2014 and 2015,
report to accompany H.R. 4681, 113th Congress, 2d sess., H.Rept. 113-463, (Washington DC: GPO, 2014), p. 17.
10
S.Res. 400, §12; H.Res. 658, §11(I). (Both resolutions provided an exception for continuing appropriations bills or
resolutions.) The extra power is because most agencies in the executive branch spend appropriated money free of the
restrictions imposed by Section 504. There is no statutory reason to prohibit them from spending appropriated funds—
especially if authorizing committees failed to pass authorization bills. See CRS Report R42098, Authorization of
Appropriations: Procedural and Legal Issues, by Jessica Tollestrup and Brian T. Yeh. The IC is careful to spend
money only if it both authorized and appropriated. See Dan Elkins, Managing Intelligence Resources, 4th Edition,
(Dewey, AZ: DWE Press, 2014), p. 7-8.
911
50 U.S.C. § 414(a)(1). The requirement for “specific authorization” was added to the National Security Act by the
Intelligence Authorization Act for FY1986 (P.L. 99-169), §401(a). The report accompanying the House version of H.R.
2419 (which became P.L. 99-169) stated that “Specifically authorized is defined to mean that the activity and the
amounts to be spent for that activity have been identified in a formal budget request to the Congress and that Congress
has either authorized those funds to be appropriated and they have been appropriated, or, whether or not the funds have
been requested, the Congress has specifically authorized a particular activity, and authorized and appropriated funds for
that activity.” U.S. Congress, House Permanent Select Committee on Intelligence, Intelligence Authorization Act for
Fiscal Year 1986, Report to accompany H.R. 2419, 99th Congress, 1st sess., H.Rept. 99-106, Part 1, (Washington DC:
GPO, May 15, 1985), p. 8. A concern existed at the time that funds had been used by the Reagan Administration for
intelligence activities in Central America without appropriate congressional support or even awareness.
1012
See, for example, language in P.L. 110-116: “SEC. 8084. Funds appropriated by this Act, or made available by the
transfer of funds in this Act, for intelligence activities are deemed to be specifically authorized by the Congress for
purposes of section 504 of the National Security Act of 1947 (50 U.S.C. §414) during fiscal year 2008 until the
enactment of the Intelligence Authorization Act for fiscal year 2008.”
1113
H.Rept. 113-463, p. 18.
1214
See for example, U.S. Congress, Senate Select Committee on Intelligence, Intelligence Authorization Act for Fiscal
Year 2015, report to accompany S. 2741, 113th Congress, 2nd sess., S.Rept. 113-233, (Washington DC: GPO, July 31,
2014), p. 1. There are many other important provisions included in the Classified Annex that accompanies the
intelligence legislation. Those provisions are not included in this report but are available for review by Members of
Congress in intelligence committee spaces.
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the Annex available for review by Members of their respective chambers, subject to appropriate
disclosure restrictions.1315 Following passage of these bills,1416 a conference committee is usually
convened to resolve the various differences between the House and Senate versions.
Despite the requirement for both an authorization and matching appropriation, in the years
following the 9/11 attacks the intelligence committees have sometimes found it difficult to
reconcile philosophical differences over important issues.1517 In some years, IAAs failed to pass
one or both chambers before the beginning of the fiscal years they represented, were never passed
by one or both chambers, or were vetoed by the President. Table 1 illustrates this difficulty. The
table summarizes the legislation associated with the annual intelligence authorization bill over the
past fifteen15 years. IAAs for eightnine fiscal years (2000-052005, 2012-132013, and 2015) were signed by the President
President three months into the respective fiscal year. Three intelligence bills were never sent to the
the President for signature (2006, 2007, and 2009) and two were vetoed (2001 and 2008). The IAA
IAA for FY2010 was passed in October 2010, a week after FY2010 was over. The IAAs for FY2011
FY2011 and FY2014 were passed just a few months prior to the end of their respective fiscal
years.
According to media and academic accounts, and statements by Members16Members18 in committee reports,
the reputations of the intelligence committees suffered during the six-year period when no
intelligence bills were passed.1719 One year is not really a problem because many activities are
authorized on a semi-permanent basis and do not need to be reauthorized each fiscal year. The
absence of an authorization bill in a particular fiscal year does not mean that ongoing programs
cease to be authorized. Authorization bills may enact far -reaching provisions that are essentially
timeless—reporting requirements that recur each year until repealed or suspended by another
authorization bill. In this case, however, no intelligence legislation was signed into law for six
years (December 2004 to October 2010, see Table 1).
During the years when there were no authorization bills, the appropriation committees had the de
facto ability to both authorize and appropriate. In addition, other authorizing committees with
intelligence-related oversight responsibilities began reestablishing their prerogatives in regard to
IC activities that fell into their areas of jurisdiction.1820 Beginning in 2009, Intelligence Committeeintelligence committee
leaders in both parties have dedicated themselves to getting intelligence authorization bills passed
on on
an annual basis. The combined efforts of SSCI Chairwoman Feinstein and HPSCI Chairman
Rogers have been particularly effective.1921 Table 1 illustrates the fact that there has been an
1315
See remarks by Rep. Michael Rogers, Congressional Record, vol. 159 (November 21, 2013), p. H7335.
Per S.Res. 400 §3(b)(1), and by convention, the Senate’s version of the IAA is sequentially referred to the Senate
Armed Services Committee before it is voted on in the Senate.
1517
For details, see CRS Report R40240, Intelligence Authorization Legislation: Status and Challenges, by Marshall C.
Erwin.
1618
U.S. Congress, House Permanent Select Committee on Intelligence, Intelligence Authorization Act for Fiscal Year
2014, report to accompany H.R. 3381, 113th Congress, 1st sess., H.Rept. 113-277, (Washington DC: GPO, November
25, 2013), “Committee Statement and Views,” on p. 8, “For too many years, intelligence authorization negotiations
were the victim of partisan infighting and turf battles.”
1719
See for example, Jennifer Sims and Burton Gerber, Transforming U.S. Intelligence, (Washington DC: Georgetown
University Press, 200C). p. 245.
1820
Other committees with jurisdictional claims to legislative engagement with the IC include the House and Senate
Armed Services, Appropriations, Judiciary, Homeland Security, Foreign Affairs/Foreign Relations, and Government
Reform/Operations committees.
1921
Senator Feinstein assumed chairmanship of the SSCI in January 2009 and Representative Rogers assumed HPSCI
chairmanship in 2011. For an example of their bipartisan/bicameral approach to intelligence oversight, see “Leaders of
Senate and House Intelligence Committees Praise Passage of 29th Intelligence Authorization Bill,” SSCI Press Release,
December 14th, 2011, at http://www.intelligence.senate.gov/press/record.cfm?id=335622.
14(continued...)
16
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intelligence bill every year since FY2010, although in several cases there have been considerable
lag times between the beginning of the fiscal year and bill passage. They have been successful in
getting IAAs passed in both chambers and signed by the President for every fiscal year since
2010. The IAA for FY2014FY2015 was signed into law on July 7, 2014. The IAA for FY2015 (S. 2741)
is currently on the Senate Legislative Calendar under General Orders, No. 519December 19, 2014.
Later in this report, Table 2 provides an overview of the intelligence authorization legislation
considered in the 113th Congress, with accompanying reports and the dates of major actions.
Table 3 provides a summary of selected provisions from the IAA for FY2015 with comparable
provisions in the original H.R. 4681 and S. 2741.
Table 1. Intelligence Authorizations, FY2000-FY2015
Congress
Fiscal Year
House Bill
Senate Bill
FY Began
(October)
Presidential
Action
Public Law
106
2000
H.R. 1555
S. 1009
1999
12/3/1999
P.L. 106-120
106
2001
H.R. 4392
S. 2507
2000
11/13/2000
Vetoeda
—
106
2001
H.R. 5630
H.R. 5630
Senate Passed
2000
12/27/2000
P.L. 106-567
107
2002
H.R. 2883
S. 1428
2001
12/28/2001
P.L. 107-108
107
2003
H.R. 4628
S. 2506
2002
11/27/2002
P.L. 107-306
108
2004
H.R. 2417
S. 1025
2003
12/13/2003
P.L. 108-177
108
2005
H.R. 4548
S. 2386
2004
12/23/2004
P.L. 108-487
109
2006
H.R. 2475
S. 1803 Not
Passed
2005
Not Requested
—
109
2007
H.R. 5020
Not Not
Passed
S. 3237 Not
Passed
2006
Not Requested
—
110
2007
H.R. 1196
S. 372
2006
Not Requested
—
110
2008
H.R. 2082
S. 1538
2007
3/8/2008
Vetoedb
—
110
2009
H.R. 5959
S. 2996 Not
Passed
2008
Not Requested
—
111
2010
H.R. 2701
S. 1494
2009
10/7/2010
P.L. 111-259
111
2011
H.R. 5161
S. 3611
—
—
—
112
2011
H.R. 754
S. 719
2010
6/8/2011
P.L. 112-18
112
2012
H.R. 1892
S. 1458
2011
1/3/2012
P.L. 112-97
112
2013
H.R. 5743
S. 3454
2012
1/14/2013
P.L. 112-277
113
2014
H.R. 3381
S. 1681
2013
7/7/2014
P.L. 113-126
113
2014-15
H.R. 4681
House Passed
—
—
—
—
113
2015
S. 2741
Pending
2014
Pending
Pending
H.R. 4661
Introducedc
Source: CRS
2015c
H.R. 4681
H.R. 4681
2014
12/19/14
P.L. 113-293
Source: CRS
(...continued)
Senate and House Intelligence Committees Praise Passage of 29th Intelligence Authorization Bill,” SSCI Press Release,
December 14th, 2011, at http://www.intelligence.senate.gov/press/record.cfm?id=335622.
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Notes:
a.
Veto message: Congressional Record-House, November 13, 2000, pp H11852-11853. Objectionable provision
removed, IAA for FY2001 passed by both chambers in December 2000.
b.
Vote on March 11, 2008, to override the veto failed.
c.
For details on FY2015 legislation, to include committee report numbers, see Table 2 to override the veto failed.
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c. H.R. 4661 was introduced as the IAA for FY2015 but never reported out of committee. H.R. 4681, an IAA
for FY2014 and FY2015, was subsequently introduced, reported and passed by the House. The Senate is
currently considering an IAA for FY2015. If passed it will be referred to the House for consideration. See Table
2 for further clarification.
IAAs for FY2014 and FY2015: Selected Legislative
Provisions
The Intelligence Authorization Act (IAA) for Fiscal Year (FY) 2014 (P.L. 113-126) was passed
signed
into law on July 7, 2014. An IAA for FY2015 is pending. (P.L. 113-293) was signed into law on December
19, 2014.
Understanding what has happened when in terms of
actions for the IAAs for FY2014 and
FY2015 is difficult because of sequencing issues and bill titles. Table 2
provides an overview of
the intelligence authorization legislation considered in the 113th Congress, with
accompanying accompanying
reports and the dates of major actions. The following timeline may also be helpful:
•
October 1, 2013: Fiscal Year 2014 began.
•
November 12, 2013: The SSCI reported an IAA for FY2014 (S. 1681) out of committee
committee to the Senate, accompanied a day later by S.Rept. 113-120.
•
November 25, 2013: The HPSCI reported an IAA for FY2014 (H.R. 3381) out of
committee to the House, accompanied by H.Rept. 113-277.
•
May 15, 2014: The HPSCI introduced an IAA for FY2015 (H.R. 4661).
•
May 20, 2014: The HPSCI introduced an IAA for both FY2014 and FY2015
(H.R. 4681).
•
May 27, 2014: The HPSCI reported an IAA for FY2014 and FY2015 (H.R.
4681) to the
House, accompanied later by H.Rept. 113-463.
•
May 30, 2014: The IAA for FY2014 and FY2015 (H.R. 4681) was passed by the House
House and sent to the Senate for consideration.
•
June 11 2014: Instead of considering H.R. 4681, the Senate passed the IAA for FY2014
FY2014 (S. 1681) and sent it to the House.
•
June 24, 2014: The House passed the IAA for FY2014 (S. 1681)
•
July 7, 2014: The IAA for FY2014 (S. 1681) became P.L. 113-126.
•
July 31, 2014: The SSCI reported an IAA for 2015 (S. 2741) to the Senate, accompanied
accompanied by S.Rept. 113-233. It has beenwas placed on the Senate Calendar but not yet discussed on
the Senate.
•
October 1, 2014: Fiscal Year 2015 began.
Passage of H.R. 4681 in the House in May authorized intelligence activities for FY2015. If S.
2741 passes the Senate, it will be sent to the House for consideration and a vote. Many House and
Senate differences have already been resolved in hopes of a smooth passage in both chambers.
This section examines selected provisions included in the IAA for FY2014 (P.L. 113-126), the.
•
October 1, 2014: Fiscal Year 2015 began.
•
December 9, 2014: SSCI discharged H.R. 4681 by Unanimous Consent. The
amended version represented the results of an informal HPSCI SSCI compromise
and included provisions from the original H.R. 4681 and S. 2741. The Senate
amended version of H.R. 4681 passed in the Senate as the “IAA for FY2015.”
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House IAA for FY2014 and FY2015 (H.R. 4681), and the Senate’s pending version of the IAA
for FY2015 (S. 2741)•
December 10, 2014: House agreed to the Senate amended H.R. 4681.
•
December 12, 2014: Presented to the President for his signature.
•
December 19, 2014: Signed, became P.L. 113-293.
Table 2. Intelligence Authorization Legislation, 113th Congress
Congress
Fiscal
Year
House Bill
Senate Bill
Fiscal
Year
Began
Date
Signed
Public Law
113
2014
H.R. 3381, H.Rept. 113277 (Reported to House
11/25/2013) S.1681
passed in House
06/24/2014
S. 1681 S.Rept. 113120 113-120
(Reported to S.Senate
11/12/2013; Passed in
Senate Senate
06/11/2014)
Oct .
2013
7/7/2014
P.L. 113-126
113
2014
-15
H.R. 4681 H.Rept. 113463 (Reported to House
05/27/2014; Passed House
5/30/2014; Referred to
Senate 06/02/2014)
--
--
--
--
113
2015
H.R. 4661 (no report,
introduced in H. May
15th, 2014, not reported
out of committee.)
S. 2741 S.Rept. 113233 (Reported to
Senate 07/31/2014;
Placed on Calendar
No. 519)
Oct 2014
--
--S. 2741 (S.Rept. 113-233)
(Reported to Senate
07/31/2014)
Oct.
2014
12/19/14
P.L. 113-293
S. 1681 passed in House
06/24/2014
113
2015
H.R. 4661 (No report,
introduced in House as
“IAA for FY2015,” May
15th, 2014, not reported
out of committee)
H.R. 4681 (H.Rept. 113463) Reported to House
05/27/2014 as “IAA for
FY2014 and 2015.”
Passed House 5/30/2014
(Referred to Senate
06/02/2014)
SSCI amended version of
H.R. 4681 “IAA for
FY2015,” Passed
12/10/14
Informal HPSCI/SSCI
compromise merged
portions of S. 2741 with
portions of House-passed
H.R. 4681to create Senate
amended H.R. 4681“IAA for
FY2015”
Senate considered Senate
amended H.R. 4681(with
Joint Explanatory Statement)
instead of S. 2741.
Senate amended version of
H.R. 4681 “IAA for
FY2015,” Passed in Senate
12/09/14.
Source: CRS.
IAA for FY2014 (P.L. 113-126)
Intelligence Advanced Research Projects Activity (IARPA)
Provisions in Section 104 authorize additional appropriations and positions for advanced research
and development to remain available through September 2015. The advanced research and
development activity refers, in part, to the Intelligence Advanced Research Projects Activity
(IARPA), the research and development arm of the Office of the Director of National Intelligence
(ODNI). IARPA is the IC’s version of the DOD’s Defense Research Projects Agency (DARPA).
Both IARPA and DARPA invest in high-risk, high-payoff research programs to tackle some of the
most difficult challenges of the agencies and disciplines in the defense establishment.2022 According
22
For more on IARPA, go to http://www.iarpa.gov.
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to its Director, IARPA sees itself as “an agency that makes sure no important thing remains
undone because it doesn’t fit somebody’s mission.”2123
According to the Senate Reportreport accompanying the legislation, the committee continues to
strongly strongly
support the mission of the IARPA. It recommends that “IARPA’s mission should remain
a a
priority, even during the fiscal environment when research and development investment can
come come
under pressure. Its mission and work should be integral to the IC R&D [Research and
Development] strategic plan.”2224 The report goes on to say, “Therefore, the Committee strongly
20
For more on IARPA, go to http://www.iarpa.gov.
Peter Highnam, IARPA Director, “Opening Remarks,” IARPA Day, College Park Marriott & Conference Center,
Hyattsville, Maryland, October 30th, 2014.
22
S.Rept. 113-120, p. 18.
21
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supports full preservation of the budget request for IARPA in FY2014 and encourages robust
investment by the IC in IARPA in FY2015.”2325
Functional Managers
Section 305 codifies a section24section26 of E.O. 12333 that pertains to the DNI and “functional
managers,” and makes several changes. Several provisions appear to be designed to make the
Directors of the Central Intelligence Agency (CIA), the National Security Agency (NSA), and the
National Geospatial-Intelligence Agency (NGA) more directly accountable to the Congress—
especially in regard to their efforts to increase the efficiency, effectiveness, and economy of their
government operations—because they bring the SSCI into the appointment process for these
individuals and increase their reporting requirements.
E.O. 12333 has been the foundational document in the IC since it was signed by President Reagan
in 1981. Section 305 codifies in statute the existing requirement in E.O.12333 to designate
functional managers for signals intelligence (SIGINT), human intelligence (HUMINT), and
geospatial intelligence (GEOINT), and other intelligence disciplines. At present, the functional
managers for SIGINT, HUMINT, GEOINT, and Measurement and Signals Intelligence
(MASINT) are the Director of the NSA, the Director of the CIA,CIA, and the Director of the NGA, and the
the Director of the Defense Intelligence Agency (DIA), respectively.
Duties of functional managers as described in E.O. 12333 may include:25
•
developing and implementing strategic guidance, policies, and procedures for
activities related to a specific intelligence discipline or set of intelligence
activities;
•
setting training and tradecraft standards;
•
ensuring coordination within and across intelligence disciplines and IC elements
and with related non-intelligence activities; and
•
advising on the management of resources; policies and procedures; collection
capabilities and gaps; processing and dissemination of intelligence; technical
architectures; and other issues or activities determined by the Director.27
23
Peter Highnam, IARPA Director, “Opening Remarks,” IARPA Day, College Park Marriott & Conference Center,
Hyattsville, Maryland, October 30th, 2014.
24
S.Rept. 113-120, p. 18.
25
Ibid., p. 21.
26
E.O. 12333, “U.S. Intelligence Activities,” 46 Federal Register 59941, (As amended by Executive Orders 13284
(2003), 13355 (2004) and 13470 (2008)), §1.3(b)(12)
27
Ibid.
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Section 305 also gave responsibility for designating functional managers (that is, the directors of
the CIA, NSA, NGA, and DIA) to the President. Under E.O. 12333, the functional managers were
designated by the DNI. The section codifies the existing responsibilities of the functional
managers to act as the principal adviser to the DNI for their respective intelligence function and
in the same capacity for the Secretary of Defense. It also establishes a new requirement for each
functional manager to report to Congress annually on the state of their function; this report is
scheduled to occur no later than two weeks after the President’s budget submission.
The reporting requirements in Section 306 call on each functional manager to identify those
programs, projects, and activities that comprise the intelligence discipline for which they are
23
Ibid., p. 21.
E.O. 12333, “U.S. Intelligence Activities,” 46 Federal Register 59941, (As amended by Executive Orders 13284
(2003), 13355 (2004) and 13470 (2008)), §1.3(b)(12)
25
Ibid.
24
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responsible and to report on resource issues and other matters relevant to the state of the function
such as “efforts to integrate such function with other intelligence disciplines or to establish
consistency in tradecraft and training; and technology developments.” This section represents an
effort to better integrate and coordinate two “pots” of intelligence money—“national” and
“military.”2628 (Table A-2 in the Appendix contains funding sources and illustrates the fact that the
Directors of DIA, NGA, NRO, and NSA manage several types of intelligence money.)
Financial Auditability
Section 309 directs the DNI and the Directors of the, CIA, DIA, NSA, National Reconnaissance
Office (NRO), and NGA to undergo full financial audits beginning with FY2014 financial
statements. Some background is useful on this provision because there is a very long history of
presidential and congressional oversight efforts to force the IC into compliance with federal
financial accounting standards. IAAs and committee reports have contained a multitude of
provisions along these lines since at least FY2002. The Senate Reportreport accompanying the IAA for
FY2002 called for the financial statements of the NRO, NSA, CIA, DIA, and what is now the
NGA to be audited by a statutory Inspector General (IG) or independent public accounting firm
by March 1, 2005.2729 In the Senate Reportreport accompanying its IAA for FY2010, the SSCI noted the
following IC response:
The bottom line is that more than ten years after the President called for action, and more
than four years after the Committee anticipated receiving auditable statements, the five
agencies are still unable either to produce auditable financial statements or receive favorable
audit opinions on those that are auditable. The current projection for doing so is at least four
years away.2830
The Senate Reportreport goes on to urge the IC to get its accounts auditable and to establish an IC-wide
business enterprise architecture (BEA) and a consolidated financial statement for the National
Intelligence Program:
Accordingly, the April 2007 plan has now been superseded by the imperative to construct a
BEA, which makes the 2012 auditability timeline difficult or impossible to achieve for most
agencies. Nonetheless, the Committee strongly supports this BEA work, which, if successful,
will provide a stronger foundation for sustainable, financial auditability. Indeed, the
28
For more on IC budget categories, see Appendix.
S.Rept. 107-63.
30
U.S. Congress, Senate Select Committee on Intelligence, Intelligence Authorization Act for Fiscal Year 2010, Report
to accompany S. 1494, 111th Cong., 1st sess., July 21, 2009, S.Rept. 111-55, pp. 57-58.
29
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Committee has repeatedly called for a BEA over the last four years. Section 322 of this bill is
designed to empower the DNI’s fledgling BTO to produce this business systems architecture.
Finally, the Committee believes that both the Congress and the DNI would benefit from the
creation of a consolidated National Intelligence Program financial statement. Such a
statement would provide valuable macro-level data and, once established, offer insight into
financial trends within the Intelligence Community.29
26
For more on IC budget categories, see Appendix.
S.Rept. 107-63.
28
U.S. Congress, Senate Select Committee on Intelligence, Intelligence Authorization Act for Fiscal Year 2010, Report
to accompany S. 1494, 111th Cong., 1st sess., July 21, 2009, S.Rept. 111-55, pp. 57-58.
29
Ibid. Provisions in the IAA for FY2010 amend 50 U.S. Code to include §3100 “Intelligence Community business
system transformation.”
27
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Foreign Counterintelligence Program (FCIP) Merged Into General Defense
Intelligence Program (GDIP)
Section 314 directs the DNI to merge the Foreign Counterintelligence Program (FCIP) into the
(GDIP). The Director of DIA is program manager for both programs. The FCIP designation was
an accounting tool to track money used solely for counter intelligencecounterintelligence purposes. The GDIP and
other IC budget programs are included in the Appendix.
Enhanced Oversight Measures
Legal Opinions
Section 321 of the IAA for FY2014 focuses on the opinions of the Office of Legal Counsel
(OLC) in the Department of Justice (DOJ) concerning intelligence activities. The provision is
designed to increase the Committeescommittees’ ability to understand and question the legal reasoning
behind OLC opinions relevant to the Committeescommittees’ oversight functions.32 This section requires the
Attorney General to provide a listing of every opinion of the OLC that has been provided to an
element of the IC, whether classified or unclassified. Provisions were made for information
associated with covert action “findings”3033 and information subject to “executive privilege.” The
Senate report explains these provisions in the following manner:31
While the Committee generally is kept apprised of the legal basis for U.S. intelligence
activities, as required by Sections 502 and 503 of the National Security Act of 1947, neither
the Department nor the IC routinely advises the Committee of the existence of OLC opinions
that are relevant to the Committee’s oversight functions. This presents an 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. Section 321 would ensure that the
Committee is aware of the existence of relevant OLC opinions so that it can obtain access to
the legal analysis set forth in these opinions through a process of accommodation with the
Executive branch.
Appointments
Title IV of P.L. 113-126 changes the appointment process for four key individuals, the Directors
of NSA and NRO and the Inspectors General (IGs) of these two agencies, making all four
presidential appointments with the advice and consent of the Senate.32 This is different from
30
31
Ibid. Provisions in the IAA for FY2010 amend 50 U.S. Code to include §3100 “Intelligence Community business
system transformation.”
32
Intelligence Committee concerns about OLC legal reasoning stem, in part, from opinions related to the CIA
Detention and Interrogation Program, particularly the legal reasoning justifying the use of waterboarding as an
Enhanced Interrogation Technique. See, for example, John D. Rockefeller, “Release of Declassified Narrative
Describing the Department of Justice Office of Legal Counsel’s Opinions on the CIA Detention and Interrogation
Program,” April 22, 2009, at http://www.intelligence.senate.gov/pdfs/olcopinion.pdf.
33
“Finding” is a term that refers the requirement that a president put in writing when he or she determines that a covert
action is “important to national security.” The requirement goes back to December 1974, when Congress passed the
“Hughes-Ryan Amendment” to the Foreign Assistance Act of 1961, formalizing the regulation of covert actions,
primarily in reaction to President Nixon’s covert bombings in Cambodia. The Hughes-Ryan Amendment required that
any covert action be supported by a Presidential finding that the action was “important to the national security” and that
the President report “in a timely fashion, a description and scope of such [actions] to the appropriate committees of the
Congress—House and Senate Foreign Relations, House and Senate Armed Services and House and Senate
Appropriations.” (This grew to eight committees after the House and Senate intelligence committees were established.)
See P.L. 93-559, §659 “Limitation on Intelligence Activities,” December 30, 1974, enacting 22 U.S.C. § 2422. See also
William E. Conner, “Congressional Reform of Covert Action Oversight Following the Iran-Contra Affair,” Defense
Intelligence Journal 2 (1993), pp. 35, 41
31
S.Rept. 113-120, p. 7.
32
See also the Senate version of the IAA for FY2010 §432.
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Committee’s oversight function, as the Committee cannot request access to legal analysis
when it is not made aware that such analysis exists. Section 321 would ensure that the
Committee is aware of the existence of relevant OLC opinions so that it can obtain access to
the legal analysis set forth in these opinions through a process of accommodation with the
Executive branch.34
Appointments
Title IV of P.L. 113-126 changes the appointment process for four key individuals, the Directors
of NSA and NRO and the Inspectors General (IGs) of these two agencies, making all four
presidential appointments with the advice and consent of the Senate.35 This is different from
provisions in E.O. 12333. In that document, the “relevant department or bureau head shall
provide recommendations and obtain the concurrence of the DNI” for the selection of most of the
IC agency directors33directors36 with certain DOD exceptions.3437
These appointment process provisions allow the Senate Intelligence Committee to take a more
active part in the selection of these four key individuals than it has in the past.3538 The desire for a
greater role in the confirmation process for the Director of NSA has been fueled in the past year
by the numerous hearings concerning NSA surveillance procedures and privacy protections.
Confirmation of the NRO Director has been fueled by concerns associated with acquisition of
complex, expensive programs.3639 Attention to the IGs of the NSA and NRO followfollows a similar
rationale.
IGs are an independent oversight tool throughout American government.3740 The Inspector General
Act of 1978 (P.L. 95-452) established a government-wide system of IGs, some appointed by the
President with the advice and consent of the Senate and others administratively appointed by the
heads of their respective Federalfederal entities.3841 IGs are authorized to ‘‘conduct and supervise audits
and investigations relating to the programs and operations’’ of the government and ‘‘to promote
economy, efficiency, and effectiveness in the administration of, and ... to prevent and detect fraud
and abuse in, such programs and operations.”39 They also perform an important reporting function
by, ‘‘keeping the head of the establishment and the Congress fully and currently informed about
problems and deficiencies relating to the administration of ... programs and operations and the
necessity for and progress of corrective action.”40
Traditionally, the issue of IGs in the IC has focused on how independent from an agency director
they can and should be. Concerns have been raised over whether an overzealous IG might pose a
threat to agency operations.41 For example, while the CIA has had an Inspector General (IG) since
1952, it was only in 1989 that Congress enacted legislation mandating an “independent” IG at
33
42 They also perform an important reporting function
34
S.Rept. 113-120, p. 7.
See also the Senate version of the IAA for FY2010 §432.
36
E.O. 12333, §1.3 (d) Director of the National Security Agency, the Director of the National Reconnaissance Office,
the Director of the National Geospatial-Intelligence Agency, the Under Secretary of Homeland Security for Intelligence
and Analysis, the Assistant Secretary of State for Intelligence and Research, the Director of the Office of Intelligence
and Counterintelligence of the Department of Energy, the Assistant Secretary for Intelligence and Analysis of the
Department of the Treasury, and the Executive Assistant Director for the National Security Branch of the Federal
Bureau of Investigation.
3437
Ibid., the Under Secretary of Defense for Intelligence (USD(I)); the Director of the Defense Intelligence Agency
(DIA); uniformed heads of the intelligence elements of the Army, the Navy, the Air Force, and the Marine Corps above
the rank of Major General or Rear Admiral; the Assistant Commandant of the Coast Guard for Intelligence; and the
Assistant Attorney General for National Security.
3538
For a complete list of the positions over which the SSCI has exercised jurisdiction, see CRS Report RL30959,
Presidential Appointee Positions Requiring Senate Confirmation and Committees Handling Nominations, by
Christopher M. Davis and Jerry W. Mansfield.
3639
E.O. 12333, §1.3 (d), pp. 9-10.
3740
See CRS Report R43722, Offices of Inspectors General and Law Enforcement Authority: In Brief, by Wendy
Ginsberg.
3841
See §8G of the Inspector General Act of 1978, as amended, for those IGs who are administratively appointed,
generally for reasons associated with protecting national security.
39
Ibid., §2(1-3).
40
Ibid.
41
See Britt Snider, “Creating a Statutory IG at the CIA,” Studies in Intelligence, Vol . 44, no 5, (August 3rd, 2011), p. 1,
https://www.cia.gov/library/center-for-the-study-of-intelligence/kent-csi/vol44no5/html/v44i5a02p.htm.
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CIA, appointed by the President with the advice and consent of the Senate. Before that, CIA IGs
were appointed by the Director of the Central Intelligence Agency.4242
Ibid., §2(1-3).
35
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by ‘‘keeping the head of the establishment and the Congress fully and currently informed about
problems and deficiencies relating to the administration of ... programs and operations and the
necessity for and progress of corrective action.”43
Traditionally, the issue of IGs in the IC has focused on how independent from an agency director
they can and should be. Concerns have been raised over whether an overzealous IG might pose a
threat to agency operations.44 For example, while the CIA has had an IG since 1952, it was only
in 1989 that Congress enacted legislation mandating an “independent” IG at CIA, appointed by
the President with the advice and consent of the Senate. Before that, CIA IGs were appointed by
the Director of the Central Intelligence Agency.45
The IAA for FY2014 called for a completely independent ODNI IG appointed by the President,
with the advice and consent of the Senate, to report directly to the DNI. To enhance the IG’s
independence within the ODNI, the IG may be removed only by the President, who must
communicate the reasons for the removal to the congressional intelligence committees.4346 The IGs
of the CIA and Departments of Defense, Energy, Homeland Security, Justice, State, and the
Treasury are appointed by the President with the advice and consent of the Senate.4447 The IAA for
FY2014 extended this list to include the IGs at the NSA and NRO.
S.Res. 4704547048 was passed by the Senate on July 7, 2014 (in conjunction with the IAA for FY2014),
to amend the Committeecommittee’s charter legislation46legislation49 and implement these new appointment provisions.
The procedures in the Senate resolution point out the SSCI’s shared jurisdiction with other IC
oversight committees:
1) Assistant Attorney General for National Security: referred to the Judiciary Committee
and, if and when reported, to the SSCI. (This person heads the National Security Branch, an
FBIa
Federal Bureau of Investigation (FBI) component of the IC.)
2) NSA Director, NSA/IG, NRO Director and NRO/IG:
a) If military and on active duty—referred to the SASC and, if and when reported, to the
SSCI.
b) If civilian—referred to the SSCI and, if and when reported, to the SASC.
Notice that in each case, only the primary committee with jurisdiction has the right of
refusal. The nomination proceeds forward, via the mechanism of sequential referral, only if
the primary committee reports it out of committee. If the secondary committee fails to report
the nomination after a specified time, the nomination is automatically discharged and placed
on the Senate’s Executive Calendar. In its report, the SSCI notes that it believes Senate
confirmation of these four positions will improve oversight and accountability and,
ultimately, the effectiveness of the agencies in question.
Insider Threats
Title V of P.L. 113-126 contains a number of provisions designed to improve security. Several
address the “insider threat problem” and speak to recommendations made by a presidential group
established to review intelligence and communications technologies. The insider threat problem
refers to efforts by individuals who work within the IC to purposefully leak classified data and
42
43
Ibid.
See Britt Snider, “Creating a Statutory IG at the CIA,” Studies in Intelligence, vol. 44, no 5, (August 3, 2011), p. 1,
https://www.cia.gov/library/center-for-the-study-of-intelligence/kent-csi/vol44no5/html/v44i5a02p.htm.
45
Ibid. See also 50 U.S.C. §403(q) and CIA Act of 1949 §17. The Director of the CIA was also the Director of Central
Intelligence at this time. For more, see Appendix.
4346
S.Rept. 111-55, p. 32.
4447
Ibid, p. 40.
4548
U.S. Congress, Senate Select Committee on Intelligence, S.Res. 470 - A resolution amending Senate Resolution 400
(94th Congress) to clarify the responsibility of committees of the Senate in the provision of the advice and consent of
the Senate to nominations to positions in the intelligence community, 113th Congress, 2nd sess. (Washington DC: GPO,
July 7, 2014).
4649
S.Res. 400.
44
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on the Senate’s Executive Calendar. In its report, the SSCI notes that it believes Senate
confirmation of these four positions will improve oversight and accountability and,
ultimately, the effectiveness of the agencies in question.
Insider Threats
Title V of P.L. 113-126 contains a number of provisions designed to improve security. Several
address the “insider threat problem” and speak to recommendations made by a presidential group
established to review intelligence and communications technologies. The insider threat problem
refers to efforts by individuals who work within the IC to purposefully leak classified data and
sabotage networks. The problem assumed critical proportions in 2013, when Edward Snowden, a
contractor working inside NSA, released thousands of classified documents to the British
newspaper The Guardian. The Snowden leaks came on the heels of Army Private Manning’s
2010 release of thousands of classified documents to WikiLeaks.
In a short period of time, stealing secrets has gone from the laborious task of copying papers
taken surreptitiously from filing cabinets to the current age in which files can be
electronically copied onto thumb drives. Manning was said to have disguised his efforts by
downloading secrets onto compact discs made to look like pop music recordings.4750
A presidential group headed by Richard Clarke issued a final report known by many as the Clarke
Report.4851 Section 501, for example, reflects the Clarke Report’s recommendation (#38) to
establish a personnel continuous monitoring program for those with classified information access.
The HPSCI report language says ‘‘the IC might have caught Snowden sooner if it had
continuously evaluated the backgrounds of employees and contractors and if IC elements had
more effectively shared potentially derogatory information about employees and contractors with
each other.”4952 According to the HPSCI, continuous evaluation “allows the IC to take advantage of
lawfully available and public information to detect warning signals that the current system of 5
year periodic investigation misses.”5053
The insider threat problem is discussed in some detail in the SSCI Report. It notes that “initiatives
have been underway for years to deal with such contingencies, most recently the President’s
National Insider Threat Policy, signed in November 2012. However, the Committee is concerned
that this policy has not been fully implemented across the IC. The Committee supports
substantially enhancing and expediting efforts to deter the insider threat.”5154
Intelligence Community Information Technology Enterprise (IC ITE)
In relation to protections against insider threats, the Senate report makes reference to the IC’s
information technology (IT) modernization effort—the IC Information Technology Enterprise (IC
50
Noah Bierman and Bryan Bender, “Leaks show U.S. intelligence vulnerability,” The Boston Globe, June 11, 2013.
Richard A. Clarke et al, Report and Recommendations of The President’s Review Group on Intelligence and
Communications Technologies, (The White House: December 12, 2013), at http://www.whitehouse.gov/sites/default/
files/docs/2013-12-12_rg_final_report.pdf. See recommendations #37-#44. Clarke served on the National Security
Council Staff from 1992-2003in a number of positions to include Special Assistant to the President for Global Affairs,
Special Advisor to the President for Cyberspace, and National Coordinator for Security and Counter-terrorism.
52
H.Rept. 113-463, p. 18.
53
Ibid.
54
S.Rept. 113-120, p. 17.
51
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ITE, pronounced “eyesight”)—and says that it “must provide the infrastructure to detect insider
threats earlier and more effectively. Robust counterintelligence data and analytic tools to monitor,
analyze and audit personnel behavior will be critical to this endeavor.”5255 By way of explanation,
the goal of IC ITE is a secure and trusted IT environment. IC ITE services focus on providing a
common IC desktop, secure online collaboration tools, and secure common cloud architectures. If
all goes as planned, IC ITE will help the IC to pool IT resources, cut costs, increase data storage
capabilities, increase mission agility and efficiency, and increase the ability to protect all levels of
data.56 and increase the ability to protect data.
47
Noah Bierman and Bryan Bender, “Leaks show U.S. intelligence vulnerability,” The Boston Globe, June 11, 2013, at
http:www.bostonglobe.com.
48
Richard A. Clarke et al, Report and Recommendations of The President’s Review Group on Intelligence and
Communications Technologies, (The White House: December 12, 2013), at
http://www.whitehouse.gov/sites/default/files/docs/2013-12-12_rg_final_report.pdf. See recommendations #37-#44.
49
H.Rept. 113-463, p. 18.
50
Ibid.
51
S.Rept. 113-120, p. 17.
52
Ibid.
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Security Clearance Reciprocity
In terms of the clearance process, provisions address the time and money associated with the
security investigation and adjudication process, and reciprocity of clearances between agencies.
Security clearance reciprocity refers to ongoing efforts to have “all security clearance background
investigations and determinations completed by an authorized investigative agency or authorized
adjudication agency ... accepted by all agencies.”5357 Reports by the Government Accountability
Office (GAO) and ODNI offer analysis which suggests that agencies may be reluctant to accept
the background investigations or security clearance determinations made by other agencies.5458
The Senate Reportreport accompanying S. 1681 provides background information to clarify some of the
provisions associated with reciprocity—citing several problems associated with “out-of-scope”
determinations.5559 Out-of-scope refers to the fact that an individual’s background investigation for
one IC agency may not adhere to the requirements of another IC agency for a variety of possible
reasons. For example, an out-of-scope determination may depend on factors associated with the
depth and breadth of the background investigation or the lack of a particular type of polygraph
examination. It may also be based on timing issues such as the time elapsed since the individual’s
initial investigation (or periodic update), a gap in his or her agency employment, or date of his or
her last polygraph examination. If agency requirements do not match on any or all criteria, there
may be an out-of-scope determination made by security personnel that overrides the reciprocity
requirement.5660
The Senate Reportreport points out that some agencies are inconsistent when it comes to applying outof-scope determinations—waiving inconsistencies for its own employees but not for employees
of other agencies. It also points out what may be inefficiencies and unnecessary costs associated
with the adjudication process.
The Committee understands that some agencies have denied security clearance reciprocity
for some IC personnel where an eligibility determination is out-of-scope, even when the
agency employs personnel whose eligibility determinations also are out of scope. In addition,
the Committee understands that some agencies have delayed employment of personnel who
have been determined to be eligible for access to classified information while the agency
adjudicates their suitability for employment. The Committee believes that both of these
practices inappropriately impede the movement of cleared personnel between agencies, often
at significant cost to the government.57
53
Mandated in P.L. 108-458, § 55
Ibid.
Chief Information Officer, Office of the DNI, “IC IT Enterprise Fact Sheet,” p. 1, at http://www.dni.gov/files/
documents/IC%20ITE%20Fact%20Sheet.pdf.
57
Mandated in P.L. 108-458, §3001(d) the Intelligence Reform and Terrorism Prevention Act (IRTPA) of 2004.
58
See, for example, U.S. Congress, House Permanent Select Committee on Intelligence, Security Clearance Reform—
Upgrading the Gateway to the National Security Community, 110th Congress, 2nd sess., H.Rept. 110-916, Washington,
DC: GPO, November 20, 2008); Testimony of Charles B. Sowell, Deputy Assistant Director for Special Security,
Office of the Director of National Intelligence, for U.S. Congress, Senate Homeland Security and Government Affairs,
Security Clearance Changes, hearings, 112th Congress, 2nd sess., June 21, 2012; and U.S. Government Accountability
Office, Personnel Security Clearance, Progress Has Been Made to Improve Timeliness but Continued Oversight Is
Needed to Sustain Momentum, GAO-11-65, November 2010, p. 27.
5559
S.Rept. 113-120, p. 11.
5660
CRS Report R43216, Security Clearance Process: Answers to Frequently Asked Questions, by Michelle D.
Christensen and Frederick M. Kaiser. See also CRS Report RL31988, Polygraph Use by the Department of Energy:
Issues for Congress, by Alfred Cumming (archived).
57
S.Rept. 113-120, p. 11.
5456
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The Committee understands that some agencies have denied security clearance reciprocity
for some IC personnel where an eligibility determination is out-of-scope, even when the
agency employs personnel whose eligibility determinations also are out of scope. In addition,
the Committee understands that some agencies have delayed employment of personnel who
have been determined to be eligible for access to classified information while the agency
adjudicates their suitability for employment. The Committee believes that both of these
practices inappropriately impede the movement of cleared personnel between agencies, often
at significant cost to the government.61
Section 501 requires the DNI, subject to the direction of the President, to ensure that the
background of each employee or officer and contractor of the IC is monitored continuously to
determine their eligibility for access to classified information; and secondly, to require IC
elements to share potentially derogatory security information concerning any employee that may
impact the eligibility of such individuals for a security clearance.
Section 504 requires the DNI to report to Congress each year, through 2017, on the reciprocal
treatment of security clearances, including: (1) the periods of time required by authorized
adjudicative agencies for accepting background investigations and determinations completed by
an authorized investigative entity or adjudicative agency; and (2) the total number of cases in
which a background investigation or determination completed by an authorized investigative
entity or adjudicative agency is, or is not, accepted by another agency.
Whistleblower Protections
Intelligence whistleblowers are generally IC employees or contractors who want to focus
attention on possible agency wrongdoings. Such individuals can face retaliation from their
employers for their disclosures, and the fear of such retaliation may deter whistleblowing. The IC
Whistleblower Protection Act (ICWPA) of 1998 provides a process by which employees, or
contractor employees, of the DIA, NGA, NRO, and the NSA can report matters of “urgent
concern” to the intelligence committees of Congress.5862 The act was augmented by Presidential
Policy Directive 19, signed by President Obama in 2012, which required IC agencies to provide
employees with protections from retaliation.
This issue is a particular concern for the IC because it does not want individuals leaking classified
information under the guise of “whistleblowing.” On the other hand, whistleblowing is an
important element of the oversight function, in that it helps overseers to identify “urgent
concerns,” defined as follows:5963
•
A serious or flagrant problem, abuse, violation of law or Executive Order, or
deficiency relating to the funding, administration, or operations of an intelligence
activity involving classified information, but does not include differences of
opinion concerning public policy matters;
•
A false statement to Congress, or a willful withholding from Congress, on an
issue of material fact relating to the funding, administration, or operation of an
intelligence activity; and/or
•
An action, including a personnel action described in section 2302(a)(2)(A) of
Title 5, constituting reprisal or threat of reprisal prohibited under section 7(c) of
the Inspector General Act of 1978, as amended, in response to an employee
reporting an urgent concern.
58
61
S.Rept. 113-120, p. 11.
See IC Inspector General website, at http://www.dni.gov/index.php/about-this-site/no-fear-act/whistleblowerprotection-laws.
5963
“ICWPA Complaints,” DOD IG website, at http://www.dodig.mil/programs/whistleblower/icwpa.html.
62
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•
An action, including a personnel action described in Section 2302(a)(2)(A) of
Title 5, constituting reprisal or threat of reprisal prohibited under Section 7(c) of
the Inspector General Act of 1978, as amended, in response to an employee
reporting an urgent concern.
When NSA contractor Edward Snowden was asked why he didn’tdid not go to the government first, he
cited the severe retaliation that previous IC whistleblowers experienced when they worked
through institutional channels without specific rights.6064
Title VI of the P.L. 113-126 provides additional protections for IC whistleblowers against
reprisals.
Section 602 includes due process protections, including the right, (1) to an independent
and and
impartial fact-finder; (2) for notice and the opportunity to be heard, including the opportunity
to to
present relevant evidence, including witness testimony; (3) to be represented by counsel; (4) to
receive a decision based on the record developed; and (5) to receive a decision within 180 days,
unless the employee and the agency agree to an extension, or the impartial fact-finder determines
in writing that a greater time period is needed in the interest of fairness or national security. An
employee is permitted to appeal the agency’s decision within 60 days of receiving it. Detailed
procedures for each stage of the process are included in the bill. Some whistleblower advocates
would like to see additional protections available to IC contractors as well.6165
Section 604 states that the legislation affords no protections for certain terminations of
employment, if, for example, the Director or agency head determines the termination to be in the
interest of the United States, determines that the procedures prescribed in other provisions of law
that authorize the termination of the employees’employee’s employment cannot be invoked in a manner
consistent with national security, and notifies Congress within five days of the termination.
Additional information on Title VI provisions is available in CRS Report R43765, Intelligence
Whistleblower Protections: In Brief, by Rodney M. Perry.
Contractor Responsibility Watch List
There are several additional provisions in the SSCI Report that refer to activities not specifically
mentioned in the unclassified bill but nonetheless include directive language.6266 For example, the
SSCI Report includes a management-focused provision designed to enhance the procurement
process with a “Contractor Responsibility Watch List.”6367 The committee wants the IC to have a
better sense of whether prospective vendors are debarred, suspended, or listed on the federal
governments’government’s System for Awards Management (SAM), a Web-based system maintained by the
General Services Administration (GSA). The report cites the following concerns.64
[T]he IC does not have an IC-wide mechanism for identifying and tracking exploitative,
unscrupulous, suspended or debarred contractors to ensure the Community deals only with
vendors who are responsible in fulfilling their legal and contractual obligations. It is through
the sharing of such information that the IC can make informed decisions, ensure the
Community conducts business only with responsible contractors, prevent suspended and
6068
64
Suzanna Andrews, et al., “The Snowden Saga: A Shadowland of Secrets and Light,” Vanity Fair, (May 2014): pp. 45, at http://www.vanityfair.com/politics/2014/05/edward-snowden-politics-interview#.
6165
See for example, Charles S. Cook, “Intel Contractors’ Whistleblower Rights are a work in Progress, Government
Executive,” August 30th30, 2013, at http://www.govexec.com/oversight/2013/08/intel-contractors-whistleblower-rightsare-workrights-arework-progress/69026/.
6266
While not in the legislation, as report language accompanying the bill, the Committee will expect the IC to comply.
Reports are written by staff and are directed to Members and staff outside the Committee to help everyone understand
committee actions and intentions. Congressional intent is clear and though nonbinding, most executive branch officials
agree that ignoring such provisions can be perilous.
6367
S.Rept. 113-120, p. 16.
6468
Ibid.
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[T]he IC does not have an IC-wide mechanism for identifying and tracking exploitative,
unscrupulous, suspended or debarred contractors to ensure the Community deals only with
vendors who are responsible in fulfilling their legal and contractual obligations. It is through
the sharing of such information that the IC can make informed decisions, ensure the
Community conducts business only with responsible contractors, prevent suspended and
debarred contractors from initiating or repeating business throughout the IC, and avoid
misuse or loss of potentially billions of dollars of taxpayer money.
The House IAA for FY2014-2015 (H.R. 4681): Passed in the House
On May 20, 2014, the House Intelligence Committee introduced The Intelligence Authorization
Act for Fiscal Year 2014 and 2015 (H.R. 4681, accompanied later by H.Rept. 113-463). On May
30, after several days of debate on the House floor, H.R. 4681 was passed by a vote of 345 to 5965
and sent to the Senate for consideration. Although this proposed legislation was not passed by the
Senate, it is worth noting a section built on FY2014 legislation that may end up in a final version
of FY2015 legislation.
NSA/IG’s General Counsel
Title IV of the IAA for FY2014 (passed in July 2014 as P.L. 113-126) made the NSA/IG subject
to the SSCI’s advice and consent. In this legislation, Title IV of H.R. 4681 proposed establishing
a General Counsel to the NSA IG, to be appointed by the NSA IG.
The proposed legislation requires and/or authorizes the General Counsel to do a number of things
(subject to various restrictions) to include the following.
•
Prescribe professional rules of ethics and responsibilities for employees, officers,
and contractors of the NSA Inspector General.
•
Subpoena the attendance and testimony of former NSA employees or NSA
contractors, former contractors, or former detailees.
•
Report instances in which the DOD Secretary prohibited an audit or
investigation.
The Senate IAA for FY2015 (S. 2741): What’s New?
The Homeland Security Intelligence Program
Title III Section 314 is significant from an oversight perspective because it addresses shared
jurisdiction between the Intelligence and Homeland Security Committees. It directs the
Department of Homeland Security (DHS) Under Secretary for Intelligence and Analysis
(USDHS/I&A) to report to Congress regarding: (1) the intelligence activity of DHS intelligence
components each fiscal year, (2) the advisability of including the budget request for all
intelligence activities of each component that predominantly supports departmental missions in
the Homeland Security Intelligence Program, and (3) a plan to enhance the coordination of
department-wide intelligence activities to achieve greater efficiencies in the performance of DHS
intelligence functions.
65
Roll no. 271.
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By way of explanation, DHS/I&A is an element of the IC and is funded with National
Intelligence Program (NIP) dollars.66 However, DHS has other intelligence activities that are
funded entirely with DHS money. Those activities support the DHS mission, as opposed to an ICwide mission (intelligence for the use of Customs only, for example). This DHS-only intelligence
money is called the Homeland Security Intelligence Program (HSIP). Because it is not part of the
NIP, it does not belong to the DNI; it belongs instead to the Secretary of Homeland Security. The
Department of Homeland Security is overseen by the Homeland Security Committees. This is a
case of shared jurisdiction over intelligence-related activities. For more on IC budget programs,
see the IC budget section in the Appendix.
Data on U.S. Persons
Section 306 deals with how long data on U.S. persons is retained if it is acquired without a court
order or without consent. (It does not apply if the data was acquired with a court order and with
consent.) It requires all IC elements to adopt Attorney General-approved procedures to prohibit
retention for a period in excess of five years of nonpublic telephone or electronic communications
to or from a U.S. person that are acquired without a court order and without the consent of a
person who is a party to the communication (including communications in electronic storage),
with some national security exceptions. The section also requires the head of an IC element
approving retention in excess of five years to certify to Congress, (1) the reasons extended
retention is necessary to protect U.S. national security, (2) the duration of the retention, the
particular information to be retained and, (3) the measures being taken to protect the privacy
interests of U.S. persons or persons located inside the United States.
Regional Issues
Two sections “express the sense of Congress” as it relates to the relationship between the U.S.
and Ukraine. Section 308 expresses the sense of Congress that, (1) cooperation between the
intelligence and law enforcement agencies of the United States and Ukraine should be increased
to improve cybersecurity policies; and (2) the United States should improve extradition
procedures among the governments of the United States, Ukraine, and other countries from which
cybercriminals target U.S. citizens and entities. Section 315 expresses the sense of Congress that
the President, working with the North Atlantic Treaty Organization (NATO), should provide the
government and armed forces of Ukraine with intelligence-sharing support. Furthermore, the
President should,
•
initiate U.S.-Ukraine bilateral talks on cybersecurity threat and cybercrime
cooperation, with additional multilateral talks that include other law enforcement
partners such as Europol and Interpol;
•
work to obtain a commitment from Ukraine to end the practice of ignoring
cybercrime directed at persons outside Ukraine and to work with the United
States and other allies to deter and convict known cybercriminals;
•
establish a capacity-building program with Ukraine, which could include joint
intelligence efforts, U.S. law enforcement agents being sent to Ukraine to aid
66
The USDHS/I&A is confirmed by the SSCI. See CRS Report RL30959, Presidential Appointee Positions Requiring
Senate Confirmation and Committees Handling Nominations, by Christopher M. Davis and Jerry W. Mansfield, p. 38.
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investigations, and agreements to connect U.S. and Ukrainian law enforcement
agencies through communications networks and hotlines; and
•
maintain a scorecard with metrics to measure Ukraine’s responses to U.S.
requests for intelligence or law enforcement assistance.
Two sections refer to diplomatic facilities in the Russian Federation. Section 309 is directed to the
Secretary of State. It requires the Department to ensure that every supervisory position at a U.S.
diplomatic facility in the Russian Federation is occupied by a U.S. citizen who is subject to and
has passed a thorough background check. It also directs the Secretary to submit to Congress a
plan to further reduce the reliance on locally employed staff in such facilities. Section 310
requires restricted access space to be included in each U.S. diplomatic facility that, after
enactment of this Act, is constructed in, or undergoes a construction upgrade in, the Russian
Federation, any country that shares a land border with the Russian Federation, or any country that
is a former member of the Soviet Union.
And finally, Section 316 refers to political prison camps in North Korea. It directs the DNI to
report to Congress regarding political prison camps in North Korea. It requires such report to
describe U.S. actions to support implementation of the recommendations of the U.N. Commission
of Inquiry on Human Rights in the Democratic People’s Republic of Korea, including the
eventual establishment of a tribunal to hold individuals accountable for abuses.
FIX-ITT (Financial Exchange and Intelligence Integration)
The SSCI Report accompanying the FY2015 legislation directs the DNI to provide performance
assessments for a new initiative called “FIX-ITT” (Financial Exchange and Intelligence
Integration). The Committee “applauds” improvements made by the National Intelligence
Manager for Threat Finance and Transnational Organized Crime in response to language in the
FY2014 legislation.67 FIX-ITT is an ODNI integrating effort to bring all financial intelligencerelated activities spread across various IC agencies together to better understand, map, and disrupt
terrorist organizations, narco-trafficking networks, proliferation networks, organized crime, and
other threats.68
67
68
S.Rept. 113-120, p.7.
Ibid.
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Appendix. Intelligence Community: In Brief
The congressional intelligence committees oversee the activities of the seventeen components
that currently comprise the U.S. Intelligence Community (IC). This confederation of agencies is
led and managed on a daily basis by the Director of National Intelligence (DNI), with the
assistance of the leadership team within the Office of the DNI (ODNI) to include the Director of
Defense Intelligence (DDI).69 The core mission of ODNI is to lead the IC in intelligence
integration—synchronizing collection, analysis, and counterintelligence so that they are fused—
effectively operating as one team.70
The task of leading the IC is particularly challenging because the IC is spread across six separate
Cabinet departments and one independent agency within the executive branch. In fact, most
intelligence offices/agencies have a dual mission: (1) support to national-level intelligence related
activities managed by the DNI and (2) support to operational-level intelligence related activities
managed by their parent department.
An overview of the IC components, leadership structure, and the overarching budget aggregations
known as the National Intelligence Program (NIP) and the Military Intelligence Program (MIP),
provides some of the basic terminology necessary to understanding intelligence legislation.
Components
The IC, as defined in 50 U.S. Code §401a (4), consists of the following components:
•
The Office of the Director of National Intelligence.
•
The Central Intelligence Agency.
•
The National Security Agency.
•
The Defense Intelligence Agency.
•
The National Geospatial-Intelligence Agency.
•
The National Reconnaissance Office.
•
Other offices within the Department of Defense for the collection of specialized
national intelligence through reconnaissance programs.
•
The intelligence elements of the Army, the Navy, the Air Force, the Marine
Corps, the Federal Bureau of Investigation, and the Department of Energy.
•
The Bureau of Intelligence and Research of the Department of State.
•
The Office of Intelligence and Analysis of the Department of the Treasury.
69
The Under Secretary of Defense for Intelligence or USD(I)) is called the Director of Defense Intelligence (DDI)
when he wears his ODNI “hat.”
70
Office of the Director of National Intelligence, U.S. National Intelligence: An Overview 2013, pp 1-2, at
http://www.dni.gov.
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In the normal legislative process, after one house passes a bill and the other then passes it with
amendments, the House and Senate need to resolve the differences between their positions and
agree to exactly the same language. A formal conference committee may not be necessary if the
two chambers can reach an agreement through informal negotiations—as was the case with the
IAA for FY2015.69 The IAA for FY2015 essentially combined those provisions offered in the
original House and Senate bills that both chambers could agree to. Several provisions in the
original H.R. 4681 no longer appear in the amended version of H.R. 4681 passed in December.70
For example, Title IV, proposing a General Counsel to the NSA IG, is no longer included. Other
provisions, such as Section 305 on “functional managers,” were incorporated into the IAA for
FY2014 passed in July 2014.
In the absence of a conference committee, there was no formal conference committee report to
accompany the amended version of H.R. 4681. Instead, a short “Joint Explanatory Statement”
was read into the Congressional Record on December 9, 2014.71 In a number of cases, the formal
HPSCI and SSCI committee reports (H.Rept. 113-463 and S.Rept. 113-233) accompanying the
committee’s originally proposed legislation offer fuller descriptions of the provisions in the
amended H.R. 4681 than those contained in the joint statement. Unfortunately, section numbers
for similar provisions vary across these reports, and determining what is new or different in the
IAA for 2015 can be difficult.
Table 3 lists selected provisions in the IAA for FY2015 (P.L. 113-293) and provides
corresponding provisions in the original House and Senate versions, if present. For example,
Section 309 of the IAA for FY2015, on data retention, is Section 306 in S. 2741. Section 307 on
management and oversight of financial intelligence, is Section 304 in S. 2741. Section 303
requiring a National Intelligence Strategy is new, but reads much like the provision for a
Quadrennial Intelligence Strategic Review in S. 2741. Section 310 is new but is simply a
technical correction to existing statutory language (see Whistle Blower Protections section
below). Section 323 requiring an annual report on violations of law or EO has corresponding
provisions in both the original H.R. 4681 (Section 321) and S. 2741 (Section 313).
69
See CRS Report 96-708, Conference Committee and Related Procedures: An Introduction, by Elizabeth Rybicki.
Some provisions may have been moved into the Classified Annex of the intelligence authorization legislation.
71
“Joint Explanatory Statement to Accompany the Intelligence Authorization Act for Fiscal Year 2015,” Senate
Debate, Congressional Record, daily edition, vol. 160, part 149 (December 9, 2014), pp. S6464-S6465.
70
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Table 3. Selected Provisions in the IAA for FY2015 (P.L. 113-293) with
Corresponding Provisions in House and Senate Proposed Legislation
H.R. 4681a
S. 2741
303: Quadrennial
Intelligence
Strategic Review
IAA for FY2015 (P.L. 113-293)
303. National Intelligence Strategy
307
304. Software Licensing
310
305. Reporting of employment activities by former intelligence officers
and employees
315
306. Inclusion of Predominantly Black Institutions in Intelligence Officer
Training Program
304
307. Management and oversight of financial intelligence.
305
308. Analysis of private sector policies and procedures for countering
insider threats.
306
309. Procedures for the retention of incidentally acquired
communications.
310. Clarification of limitation of review to retaliatory security clearance
or access determinations.
321
307
311. Feasibility study on consolidating classified databases of cyber
threat indicators and malware samples.
308
312. Sense of Congress on cybersecurity threat and cybercrime
cooperation with Ukraine.
309
313. Replacement of locally employed staff serving at United States
diplomatic facilities in the Russian Federation.
310
314. Inclusion of Sensitive Compartmented Information Facilities in
United States diplomatic facilities in the Russian Federation and adjacent
countries
311
321. Report on declassification process.
312
322. Report on intelligence community efficient spending targets.
313
323. Annual report on violations of law or executive order.
314
324. Annual report on intelligence activities of the Department of
Homeland Security.
316
325. Report on political prison camps in North Korea.
327
326. Assessment of security of domestic oil refineries and related rail
transportation infrastructure.
330
327. Enhanced contractor level assessments for the intelligence
community.
331
328. Assessment of the efficacy of memoranda of understanding to
facilitate intelligence-sharing.
329
329. Report on foreign man-made electromagnetic pulse weapons.
333
330. Report on United States counterterrorism strategy to disrupt,
dismantle, and defeat al-Qaeda and its affiliated or associated groups.
324
331. Feasibility study on retraining veterans in cybersecurity.
Source: CRS
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Notes:
a.
To read original text, see the version referred to the Senate.
National Intelligence Strategy (NIS)
Section 303 requires the DNI to develop a NIS every four years beginning in 2017.72 It requires
each strategy, in a manner consistent with other relevant U.S. agencies' strategic plans and
national-level plans, to (1) address national and military intelligence, including
counterintelligence; (2) identify current and future major national security missions of the
intelligence community, including factors that may affect performance during the following 10year period; (3) assess threats from foreign intelligence and security services, as well as insider
threats; (4) outline organizational roles and missions; and (5) identify sources of strategic,
institutional, programmatic, fiscal, and technological risk.
This requirement codifies an existing practice. The ODNI has been producing a NIS since 2005
largely in reaction to provisions included in the Intelligence Reform and Terrorism Prevention Act
of 2004 (P.L. 108-458), referred to as the Intelligence Reform Act or IRTPA. The IRTPA did not
specifically mandate one overarching NIS, but did require strategic plans for many intelligencerelated activities such as counterterrorism and partnerships with foreign countries. The 2005
NIS73 implemented while Ambassador John Negroponte was DNI was updated in 2009 under
DNI Dennis Blair and again in 2014 by DNI James Clapper.74
Data on U.S. Persons
Section 309 prescribes how long data on U.S. persons can be retained if it is acquired incidentally
(that is, inadvertently obtained) as part of investigations of foreign persons—and therefore,
obtained without a court order and without consent.
Privacy advocates raised objections to Section 309 shortly before bill passage in the House
arguing the provision expands the government’s authority to collect the communications of U.S.
persons.75 The intelligence committees defended the provisions, countering that Section 309 does
the opposite—it “protects privacy rights.… Although the executive branch already follows
procedures along these lines, Section 309 would enshrine the requirement in law.”76
72
This new provision resembles the requirement originally in S. 2741 for a Quadrennial Intelligence Strategic Review
similar in content to the DOD’s Quadrennial Defense Review (QDR). The DOD QDR is a long-term review of DOD
strategy and priorities. For further details, see the DOD’s QDR webpage at http://www.defense.gov/home/features/
2014/0314_sdr/qdr.aspx.
73
Office of the Director of National Intelligence, National Intelligence Strategy: Transformation through Integration
and Innovation, October 2005, at http://www.dni.gov/files/documents/Newsroom/Reports%20and%20Pubs/
NISOctober2005.pdf.
74
Office of the Director of National Intelligence, National Intelligence Strategy, August 2009, http://www.dni.gov/
files/documents/Newsroom/Reports%20and%20Pubs/2009_NIS.pdf; and National Intelligence Strategy 2014, at
http://www.dni.gov/files/documents/2014_NIS_Publication.pdf.
75
See, for example, Representative Justin Amash, “Block New Spying on U.S. Citizens: Vote ‘No’ on H.R. 4681,”
Dear Colleague, December 10, 2014, at https://www.facebook.com/repjustinamash/posts/812569822115759. See also
Electronic Frontier Foundation, “EFF Statement on the 2015 Intelligence Authorization Bill,” December 15, 2014, at
https://www.eff.org/deeplinks/2014/12/eff-statement-2015-intelligence-authorization-bill.
76
U.S. Congress, House Permanent Select Committee on Intelligence, “Fact Sheet,” at http://intelligence.house.gov/
press-release/fact-sheet-hr-4681-fiscal-year-2015-intelligence-authorization-act. For SSCI defense of Section 309 see
Mario Trojillo, “Intel figures downplay spy provision,” The Hill, December 15, 2014, at http://thehill.com/policy/
(continued...)
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Section 309 requires all IC elements to adopt Attorney General-approved procedures to prohibit
retention for a period in excess of five years of nonpublic telephone or electronic communications
to or from a U.S. person that are acquired without a court order and without the consent of a
person who is a party to the communication (including communications in electronic storage),
with some national security-related exceptions.77
The section also requires the head of an IC element approving retention in excess of five years to
certify to Congress (1) the reasons extended retention is necessary to protect U.S. national
security, (2) the duration of the retention, the particular information to be retained, (3) the
measures being taken to protect the privacy interests of U.S. persons or persons located inside the
United States.
Whistle Blower Protections and Security Clearances
Section 310 is a technical provision that adds to the Whistle Blower protections discussed earlier
in this report as part of the IAA for FY2014. It amends legislation78 pertaining to policies and
procedures associated with security clearance actions taken against individuals alleging reprisal
for having made a protected disclosure.
If a determination is made to suspend or revoke a security clearance (or access to classified
information), this provision allows employees to retain their government employment status
while the challenge is pending. The provision extends protections, to the extent practicable, to
individuals alleging reprisal for having made a protected disclosure (provided the individual does
not disclose classified information or other information contrary to law) to appeal any action
affecting an employee’s access to classified information.
The Homeland Security Intelligence Program
Section 324 requires the Department of Homeland Security (DHS) Under Secretary for
Intelligence and Analysis (USDHS/I&A) to provide the congressional intelligence committees
with a report on each intelligence activity of each intelligence component of the Department that
includes, among other things, the amount of funding requested, the number of full-time
employees, and the number of full-time contractor employees. In addition, Section 324 requires
the Secretary of Homeland Security to submit to the congressional intelligence committees a
report that examines the feasibility and advisability of consolidating the planning, programming,
and resourcing of such activities within the Homeland Security Intelligence Program (HSIP).
According to the Joint Explanatory Statement accompanying the IAA for FY2015
The HSIP [Homeland Security Intelligence Program] budget was established to fund those
intelligence activities that principally support missions of the DHS separately from those of
the NIP [National Intelligence Program]. To date, however, this mechanism has only been
(...continued)
technology/227164-intelligence-community-plays-down-worries-on-bill.
77
Exceptions include communications that (1) suggest evidence of a crime, (2) are enciphered and appear to have a
secret meaning, (3) have foreign intelligence or counterintelligence value, (4) involve only non-U.S. persons, and (5)
suggest an imminent threat to human life.
78
50 U.S.C. §3341(b)(7), Section 3001(b)(7) of the Intelligence Reform and Terrorism Prevention Act of 2004.
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used to supplement the budget for the office of Intelligence and Analysis. It has not been
used to fund the activities of the non-IC components in the DHS that conduct intelligencerelated activities. As a result, there is no comprehensive reporting to Congress regarding the
overall resources and personnel required in support of the Department’s intelligence
activities.79
This section is significant from an oversight perspective because it addresses shared jurisdiction
between the Intelligence and Homeland Security Committees. By way of explanation, DHS/I&A
is an element of the IC and is funded with National Intelligence Program (NIP) dollars.80
However, DHS has other intelligence activities that are funded entirely with DHS money.
Theoretically, those activities support the DHS mission, as opposed to an IC-wide mission
(intelligence for the use of Customs only, for example). This DHS-only intelligence money is
called the Homeland Security Intelligence Program (HSIP). Because it is not part of the NIP, it
does not belong to the DNI; it belongs instead to the Secretary of Homeland Security. The
Department of Homeland Security is overseen by the Homeland Security Committees. This is a
case of shared jurisdiction over intelligence-related activities. For more on IC budget programs,
see the IC budget section in the Appendix.
Regional Issues
Section 312 illustrates the way in which certain issues such as cybersecurity and cybercrime
transcend traditional boundaries between law enforcement and intelligence, and between
congressional committees—in this case intelligence and judiciary. Its provisions express the sense
of Congress that the President, working with the government of Ukraine should:
•
initiate U.S.-Ukraine bilateral talks on cybersecurity threat and cybercrime
cooperation, with additional multilateral talks that include other law enforcement
partners such as Europol and Interpol;
•
work to obtain a commitment from Ukraine to end cybercrime directed at persons
outside Ukraine and to work with the United States and other allies to deter and
convict known cybercriminals;
•
establish a capacity-building program with Ukraine, which could include joint
intelligence efforts, U.S. law enforcement agents being sent to Ukraine to aid
investigations, and agreements to connect U.S. and Ukrainian law enforcement
agencies through communications networks and hotlines; and
•
establish and maintain a scorecard with metrics to measure Ukraine’s responses
to U.S. requests for intelligence or law enforcement assistance.
Two sections refer to diplomatic facilities in the Russian Federation. Section 313 is directed at the
Department of State and requires the Secretary to ensure that every supervisory position at a U.S.
diplomatic facility in the Russian Federation is occupied by a U.S. citizen who is subject to and
has passed a thorough background check. It also directs the Secretary to submit to Congress a
plan to further reduce the reliance on locally employed staff in such facilities. Section 314
requires restricted access space to be included in each U.S. diplomatic facility that is constructed
79
“Joint Explanatory Statement to Accompany the Intelligence Authorization Act for Fiscal Year 2015,” Senate
Debate, Congressional Record, daily edition, vol. 160, part 149 (December 9, 2014), p. S6465.
80
The USDHS/I&A is confirmed by the SSCI. See CRS Report RL30959, Presidential Appointee Positions Requiring
Senate Confirmation and Committees Handling Nominations, by Christopher M. Davis and Jerry W. Mansfield, p. 38.
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in, or undergoes a construction upgrade in, the Russian Federation, any country that shares a land
border with the Russian Federation, or any country that is a former member of the Soviet Union.81
Section 325 directs the DNI to report to the congressional intelligence committees, the Senate
Foreign Relations Committee and the House Foreign Affairs Committee, regarding political
prison camps in North Korea. It requires such report to describe U.S. actions to support
implementation of the recommendations of the U.N. Commission of Inquiry on Human Rights in
the Democratic People’s Republic of Korea, including the eventual establishment of a tribunal to
hold individuals accountable for abuses. It also requires as much information as possible on
topics such as prisoner populations, treatment and living conditions.
Contractor Level Assessments
Improved planning for, and management of contractors has been a recurring theme in IC
legislation, particularly since September 11, 2001. The IAA for FY2015 is no exception. Section
327 amends the National Security Act to require annual personnel level assessments for the IC
that include a separate estimate of the number of intelligence collectors and analysts contracted
by each element of the IC and a description of the functions performed by such contractors.
The request echoes a similar requirement for information made five years ago—in Section 339 of
the IAA for FY2010 (P.L. 111-259). Section 339 required the DNI to submit a single report (by
February 2011) describing a number of contractor related issues across the IC to include hiring,
training and retention; clearances; conversion of contractors to U.S. government employees;
accountability mechanisms; number of contracts; and costs. Section 339 requirements included
contractors associated with intelligence collection, analysis, and covert actions (including
rendition, detention and interrogation activities).
The dramatic growth in IC contracting activities following the September 11, 2001 attacks on the
United States has primarily been associated with the need for “surge” capacity. According to
Ronald Sanders, Associate DNI when he wrote the following in 2007,
[O]ur agencies simply did not have enough people to do the job. In the months after Sept. 11,
2001, contract personnel emerged as our “reserves,” allowing us to surge to meet
unprecedented mission demands. Why not just hire more civilians? We have, but it takes
years to train and develop intelligence analysts and case officers. In the interim, contract
personnel have filled the gap, in many cases with decades of priceless experience. 82
Congressional overseers have long recognized that contractors provide a wide range of services
for the IC (just as they do for the military) from transportation, construction, and support services,
to intelligence collection, analysis and private security. Contractors provide a surge capability,
quickly delivering critical support capabilities tailored to specific intelligence needs. Because
contractors can be hired when a particular need arises and released when their services are no
81
This requirement can be waived (due to national security interests) by the Secretary of State if s/he requests a waiver
in writing to appropriate congressional committees prior to exercising the waiver.
82
See Ronald P. Sanders, “The Value of Private Spies,” Letter to the Editor, Washington Post, July 18, 2007, at
http://www.washingtonpost.com/wp-dyn/content/article/2007/07/17/AR2007071701679.html. Ron Sanders was thenAssociate Director of National Intelligence.
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longer needed, contractors can be less expensive in the long run than maintaining a permanent inhouse capability.83
Unfortunately, critics argue that contractors can also compromise the credibility and effectiveness
of the IC and undermine operations.84 Concerns over government reliance on contractors often
focus on cost, accountability and workforce issues.85 Most recently, the SSCI Study of the CIA’s
Detention and Interrogation Program has renewed debate over which activities performed by
contractors are “inherently governmental.”86 According to the SSCI Study’s Finding 13, “The
psychologists carried out inherently governmental functions, such as acting as liaison between the
CIA and foreign intelligence services, assessing the effectiveness of the interrogation program,
and participating in the interrogation of detainees held in foreign government custody.”87
Memoranda of Understanding May Improve Intelligence Sharing
Section 328 requires the USDHS/I&A to provide appropriate congressional committees with an
assessment of the usefulness of a memoranda of understanding signed between federal, state,
local, tribal, and territorial agencies to improve intelligence-sharing within and separate from the
Joint Terrorism Task Force (JTTF). JTTFs are operated by the Federal Bureau of Investigation
(FBI) and are based in 104 cities nationwide. Although they have been in existence since 198088
71 have been created since 9/11. Their primarily purpose is to co-locate counterterrorism-related
resources to enhance coordination and collaboration. According to the FBI, they consist of “small
cells of highly trained, locally based, passionately committed investigators, analysts, linguists,
SWAT experts, and other specialists from dozens of U.S. law enforcement and intelligence
agencies.”89 The FBI describes a JTTF’s duties as follows: “chase down leads, gather evidence,
make arrests, provide security for special events, conduct training, collect and share intelligence,
and respond to threats and incidents at a moment’s notice.”90
83
See CRS Report R43074, Department of Defense’s Use of Contractors to Support Military Operations: Background,
Analysis, and Issues for Congress, by Moshe Schwartz.
84
See Simon Chesterman, “We Can’t Spy … If We Can’t Buy!: The Privatization of Intelligence and the Limits of
Outsourcing ‘Inherently’ Governmental Functions,” European Journal of International Law, vol. 19, no. 5 (2008):
1055-1074, at http://ejil.oxfordjournals.org/content/19/5/1055.full.pdf+html.
85
See for example, U.S. Congress, Senate, Committee on Homeland Security and Government Affairs, Testimony by
Timothy J. DiNapoli, Director of Acquisition and Sourcing Management for the Government Accountability Office,
“Additional Actions Needed to Improve Reporting on and Planning for the Use of Contract Personnel,” February 13,
2014, p. 3, at http://www.gao.gov/assets/670/660945.pdf; Vinh Nguyen, “Current Trends in Intelligence Outsourcing
Affect Work Force Stability,” Signal OnLine, December 2007, at http://www.afcea.org/content/?q=node/1440; and
Brian Fung, “U.S. intelligence agencies can’t justify why they use so many contractors,” Washington Post, February
14, 2014, at http://www.washingtonpost.com/blogs/the-switch/wp/2014/02/14/u-s-intelligence-agencies-cant-justifywhy-they-use-so-many-contractors/.
86
U.S. Congress, Senate Select Committee on Intelligence, “Findings and Conclusions,” Committee Study of the
Central Intelligence Agency’s Detention and Interrogation Program, 113th Congress, 2nd sess., December 3, 2014, p.
11 of 19, at http://www.intelligence.senate.gov/study2014/sscistudy1.pdf. Office of Management and Budget Circular
A-76 defines an inherently governmental activity is "an activity that is so intimately related to the public interest as to
mandate performance by government personnel." See CRS Report R42325, Definitions of “Inherently Governmental
Function” in Federal Procurement Law and Guidance, by Kate M. Manuel.
87
Ibid.
88
The first was established in New York City according to the JTTF webpage at http://www.fbi.gov/about-us/
investigate/terrorism/terrorism_jttfs.
89
Ibid.
90
Ibid.
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Section 328 was prompted by April 2013 bombing of the Boston Marathon.91 A 2014 Report
collectively issued by four IGs (the IGs for the DNI, CIA, DOJ and DHS) found that the FBI,
CIA, DHS, and National Counterterrorism Center (NCTC) generally shared information, and
followed procedures appropriately but improvements could be made. The report recommended
(1) the FBI and DHS clarify JTTF alert procedures, and (2) the FBI consider establishing a
procedure for sharing threat information with state and local partners more proactively and
uniformly.92 According to the intelligence committees’ Joint Explanatory Statement, Section 328
“should help identify any obstacles to intelligence sharing between agencies, particularly any
obstacles that might have impeded intelligence sharing in the wake of the April 2013 bombing of
the Boston Marathon, and find improvements to existing intelligence sharing relationships.”93
Counterterrorism Strategy
Section 330 directs the DNI to submit an unclassified comprehensive report94 on the U.S.
counterterrorism (CT) strategy to disrupt, dismantle, and defeat al-Qaeda and its affiliated or
associated groups to the appropriate committees in Congress. The committee envisions an
interagency approach, coordinated by the DNI, including the views of the Secretaries of State,
Treasury, and Defense, the Attorney General, and the head of any other appropriate department or
agency of the United States Government. Required elements of the report include an assessment
of the strengthening or weakening of the groups in question from January 1, 2010 to the present.
The CT report required by Section 330 should complement a report required in the FY2008
Supplemental Appropriations Act (P.L. 110-252, §9304) that required a comprehensive global
strategy to defeat al Qaeda and its affiliates—jointly submitted by the Secretaries of Defense,
State and Homeland Security, in coordination with the Chairman of the Joint Chiefs of Staff and
the DNI. The strategy submitted to Congress in 2008 was classified.95
FIX-ITT (Financial Exchange and Intelligence Integration)
The SSCI report accompanying the FY2015 legislation directs the DNI to provide performance
assessments for a new initiative called “FIX-ITT” (Financial Exchange and Intelligence
Integration). The committee “applauds” improvements made by the National Intelligence
Manager for Threat Finance and Transnational Organized Crime in response to language in the
91
On April 15, 2013, two pressure cooker bombs placed near the finish line of the Boston Marathon detonated within
seconds of each other, killing three and injuring more than two hundred people. Law enforcement officials identified
brothers Tamerlan and Dzhokhar Tsarnaev as primary suspects in the bombings. The Boston JTTF conducted an
assessment of Tamerlan Tsarnaev to determine whether he posed a threat to national security and closed the assessment
three months later having found no link or “nexus” to terrorism.
92
“Unclassified Summary of Information Handling and Sharing Prior to the April 15, 2013 Boston Marathon
Bombings, Prepared by the Inspectors General of the: Intelligence Community, Central Intelligence Agency,
Department of Justice, and the Department of Homeland Security,” 10 April 2014, at http://www.dni.gov/index.php/
newsroom/reports-and-publications/204-reports-publications-2014/1042-unclassified-summary-of-informationhandling-and-sharing-prior-to-the-april-15,-2013-boston-marathon-bombings.
93
“Joint Explanatory Statement to Accompany the Intelligence Authorization Act for Fiscal Year 2015,” Senate
Debate, Congressional Record, daily edition, vol. 160, part 149 (December 9, 2014), p. S6465.
94
The report is due within 180 days of the bill’s passage on December 19, 2014 and may include a classified annex.
95
Section 330 was a floor amendment offered by Representative Lloyd “Ted” Poe. The report it requires focuses on the
relationships between “core” al Qaeda fighters and al Qaeda affiliates, as well the relationship between al Qaeda and
the Islamic State. See Remarks by Rep. Ted Poe, "Amendment No. 7 to the Intelligence Authorization Act for Fiscal
Years 2014 and 2015," Congressional Record, daily edition, vol. 160 (May 30, 2014), pp. H5051-H5052.
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FY2014 legislation.96 FIX-ITT is an ODNI integrating effort to bring all financial intelligencerelated activities spread across various IC agencies together to better understand, map, and disrupt
terrorist organizations, narco-trafficking networks, proliferation networks, organized crime, and
other threats.97
96
97
S.Rept. 113-120, p. 7.
Ibid.
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Appendix. Intelligence Community: In Brief
The congressional intelligence committees oversee the activities of the 17 components that
currently comprise the U.S. Intelligence Community (IC). This confederation of agencies is led
and managed on a daily basis by the Director of National Intelligence (DNI), with the assistance
of the leadership team within the Office of the DNI (ODNI) to include the Director of Defense
Intelligence (DDI).98 The core mission of ODNI is to lead the IC in intelligence integration—
synchronizing collection, analysis, and counterintelligence so that they are fused—effectively
operating as one team.99
The task of leading the IC is particularly challenging because the IC is spread across six separate
Cabinet departments and one independent agency within the executive branch. In fact, most
intelligence offices/agencies have a dual mission: (1) support to national-level intelligence related
activities managed by the DNI and (2) support to operational-level intelligence related activities
managed by their parent department.
An overview of the IC components, leadership structure, and the overarching budget aggregations
known as the National Intelligence Program (NIP) and the Military Intelligence Program (MIP)
provides some of the basic terminology necessary to understanding intelligence legislation.
Components
The IC, as defined in 50 U.S. Code §401a (4), consists of the following components:
•
The Office of the Director of National Intelligence.
•
The Central Intelligence Agency.
•
The National Security Agency.
•
The Defense Intelligence Agency.
•
The National Geospatial-Intelligence Agency.
•
The National Reconnaissance Office.
•
Other offices within the Department of Defense for the collection of specialized
national intelligence through reconnaissance programs.
•
The intelligence elements of the Army, the Navy, the Air Force, the Marine
Corps, the Federal Bureau of Investigation, and the Department of Energy.
•
The Bureau of Intelligence and Research of the Department of State.
•
The Office of Intelligence and Analysis of the Department of the Treasury.
98
The Under Secretary of Defense for Intelligence or USD(I)) is called the Director of Defense Intelligence (DDI)
when he wears his ODNI “hat.”
99
Office of the Director of National Intelligence, U.S. National Intelligence: An Overview 2013, pp 1-2, at
http://www.dni.gov.
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•
The elements of the Department of Homeland Security concerned with the
analysis of intelligence information, including the Office of Intelligence of the
Coast Guard.
•
Such other elements of any other department or agency as may be designated by
the President, or designated jointly by the Director of National Intelligence and
the head of the department or agency concerned, as an element of the IC.
Leadership Structure: the DNI and USD(I)
The Director of National Intelligence
The Intelligence Reform and Terrorism Prevention Act of 2004 (P.L. 108-458), referred to as the
Intelligence Reform Act or IRTPA, is widely considered to be the most significant legislation
affecting the IC since the National Security Act of 1947. Most notably, the IRTPA established the
position of DNI with more extensive authorities to coordinate the nation’s intelligence effort than
those formerly possessed by Directors of Central Intelligence (DCI).71100 The 9/11 Commission
concluded that a central lesson that Congress and the Executive Branchexecutive branch drew from the 9/11
attacks attacks
was that there had been inadequate interagency coordination partially as a result of
separate separate
statutory missions and administrative barriers.72101 A number of reform measures were
passed—a
great many of which were designed to more closely and effectively coordinate the
acquisition and
dissemination of available intelligence. In terms of enhancing DNI’s authorities
over other IC
leaders, the IRTPA focused particularly on personnel, tasking, acquisition, and
budget.
The IRTPA divided the DCI’s three major responsibilities between two new positions—the
Director of the CIA (DCIA) and DNI—making the new DNI both community manager and
principal advisor to the President (and leaving leadership of the CIA to its director). The DNI
speaks for U.S. intelligence agencies, he briefs the President, has authority to develop the budget
for the national intelligence effort and manage appropriations made by Congress, and, to some
extent, can transfer personnel and funds from one agency to another. The ODNI, a staff of some
1,600 officials along with additional contract personnel, works to carry out the DNI’s
responsibilities. The President appoints the DNI with the advice and consent of the Senate.
The Office of the DNI
The ODNI carries out what it calls its “core” integration responsibilities with the help of several
statutory components within the ODNI to include the National Counterterrorism Center (NCTC),
the National Counterproliferation Center (NCPC), the National Counterintelligence Executive
(NCIX), and the National Intelligence Council (NIC). Figure A-1 illustrates the composition of
71the ODNI to include its core activities, “enabler,” and “oversight” offices. Enabler offices focus
on IC-wide concerns such as acquisition, budget, human capital, policy and strategy, and systems
100
See Richard Best, “Leadership of the U.S. Intelligence Community: From DCI to DNI,” International Journal of
Intelligence and Counterintelligence, Volvol. 27, No. 2, (March, 2014): pp. 253-333, at http://www.tandfonline.com/.
72101
National Commission on Terrorist Attacks Upon the United States, Final Report, The 9/11 Commission Report
(Washington D.C.: Government Printing Office, 2004), pp. 407-411; U.S. Congress, Senate Select Committee on
Intelligence and House Permanent Select Committee on Intelligence, Joint Inquiry into Intelligence Community
Activities Before and After the Terrorist Attacks of September 11, 2001, 107th Congress, 2nd sess., S.Rept. 107351/H.Rept. 107-792, December 2002, pp. 33-117; U.S. Commission on the Intelligence Capabilities of the U.S.
Regarding Weapons of Mass Destruction, Report to the President of the United States, March 31, 2005, pp. 311-350.
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the ODNI to include its core activities, “enabler,” and “oversight” offices. Enabler offices focus
on IC-wide concerns such as acquisition, budget, human capital, policy and strategy, and systems
and resource analysis. Oversight offices such as the General Counsel, Inspector General, and the
Civil Liberties and Privacy Protection Office focus on IC-wide activities such as compliance with
U.S. law, investigating allegations of fraud, waste, and abuse, amongand other issues.73102
Figure A-1. Office of the Director of National Intelligence
Source: “Organization,” at http://www.dni.gov.
73
“Organization,” under “About,” ODNI webpage, at http://www.dni.gov.
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The Under Secretary of Defense (Intelligence)/Director of Defense Intelligence
For reasons similar to those associated with the creation of the DNI, but by means of a different
statute,74103 the position of Under Secretary of Defense (Intelligence) (USD(I)) was established in
102
103
“Organization,” under “About,” ODNI webpage, at http://www.dni.gov.
National Defense Authorization Act for FY2003 (P.L. 107-314,§901).
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2003. The law divided the duties associated with the former Assistant Secretary of Defense for
Command, Control, Communications and Intelligence, or ASD/C3I, into two positions—one
position responsible for managing the intelligence portfolio, and one position responsible for
supervising information systems across the DOD. The statute and DOD directives75directives104 gave the
USD(I) significant authorities for the direction and control of intelligence agencies within the
DOD.
In May 2007, the Secretary of Defense and DNI formally agreed in a Memorandum of Agreement
(MOA) that the position would be “dual-hatted”—the incumbent acting as both the USD(I)
within the Office of the Secretary of Defense (OSD) and Director of Defense Intelligence (DDI)
within the ODNI in order to improve the integration of national and military intelligence.76105
According to the MOA, when acting as DDI, the incumbent reports directly to the DNI and serves
as his principal advisor regarding defense intelligence matters. James Clapper, DDI at the time,
said that the creation of the DDI position was a way to better “strengthen the relationship between
the DNI and the DOD … (and) to facilitate staff interaction and promote synchronization.”77106 The
MOA did not alter the statutory responsibilities or authorities of either the Secretary of Defense or
the DNI.
The Intelligence Budget
Many authorities and responsibilities associated with the DNI and USD(I) make reference to the
national and military intelligence programs—known commonly as “the NIP and MIP.” The terms
NIP and MIP are fairly new, the former created by the IRTPA of 2004 Section §1074, and the latter
created by DOD Directive in 2005.78107 Prior to the IRTPA, the NIP was known as the National
Foreign Intelligence Program (NFIP). The MIP represents the merger of two programs formerly
known as the Tactical Intelligence and Related Activities (TIARA) Program and the Joint Military
Intelligence Program (JMIP).79108
The DNI is most closely associated with the NIP and the USD(I) (in his role as DDI) is most
closely associated with the MIP. Together, they oversee a number of interagency activities
designed to facilitate the “seamless integration” of NIP and MIP intelligence efforts. Mutually
74
National Defense Authorization Act for FY2003 (P.L. 107-314,§901).
beneficial programs, for example, may receive both NIP and MIP resources.109 The NIP is
associated with national-level intelligence. Some NIP programs fall within the DOD, some do
not. Dr. Mark Lowenthal, former HPSCI Staff Director, describes the NIP as “programs that
104
The primary directive is Department of Defense Directive 5132.01, “Under Secretary of Defense for Intelligence
(USD(I)),” November 23, 2005, pp. 2-7, posted on http://fas.org/irp/doddir/dod/d5143_01.pdf.
76105
Michael McConnell, DNI and Robert Gates, Secretary of Defense, "Memorandum of Agreement," May 2007, See
DOD News Release No 637-07, May 24, 2007, “Under Secretary of Defense for Intelligence to be Dual-Hatted as
Director of Defense Intelligence.,” at http://www.defense.gov/Releases/Release.aspx?ReleaseID=10918.
77106
Ibid.
78107
Deputy Secretary of Defense Memorandum, “Establishment of the Military Intelligence Program,” September 1,
2005. See also DOD Directive 5205.12, “Military Intelligence Program,” November 14, 2008 (certified current through
November 14, 2015), at http://www.dtic.mil/whs/directives/corres/pdf/520512_2008_certifiedcurrent.pdf. (DODD
5205.12).
79
Elkins, p. 4-12.
75
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beneficial programs, for example, may receive both NIP and MIP resources.80 The NIP is
associated with national-level intelligence. Some NIP programs fall within the DOD, some do
not. Dr. Mark Lowenthal, former HPSCI Staff Director, describes the NIP as “programs that
108
Elkins, p. 4-12.
109
For information on specifics associated with NIP and MIP spending over time, see CRS Report R42061,
Intelligence Spending and Appropriations: Issues for Congress, by Marshall C. Erwin and Amy Belasco.
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either transcend the bounds of any one agency or are nondefense in nature.”81110 50 U.S.C. §401a
Section
401a (6) defines the term “National Intelligence Program” as:
[A]ll programs, projects, and activities of the IC, as well as any other programs of the IC
designated jointly by the Director of National Intelligence and the head of a United States
department or agency or by the President. Such term does not include programs, projects, or
activities of the military departments to acquire intelligence solely for the planning and
conduct of tactical military operations by United States Armed Forces.
Both defense and nondefense NIP funds are determined and controlled by the DNI, from budget
development through execution. The NIP is often perceived as more complicated than the MIP
because it is an aggregation of fourteen14 programs that span the entire IC. NIP programs are
capabilities capabilities
based. Cryptology, for example, is a capability that spans several IC components.
Each program
within the NIP is headed by a Program Manager. These Program Managers
exercise daily direct
control over their NIP resources. The DNI acts as an intermediary in the
budget process, between
these managers, on the one side, and the President and Congress on the
other.82111
In contrast, “the MIP” is only those defense dollars associated with the operational and tacticallevel activities of the military services. It all “belongs” to the Secretary of Defense.83112 It refers to
service specific and DOD wide intelligence assets that are seen as “organic” to military units
(e.g., deployable SIGINT personnel and equipment or tactical reconnaissance aircraft).84113
According to the MIP charter directive:85directive114
The MIP consists of programs, projects, or activities that support the Secretary of Defense’s
intelligence, counterintelligence, and related intelligence responsibilities. This includes those
intelligence and counterintelligence programs, projects, or activities that provide capabilities
to meet warfighters’ operational and tactical requirements more effectively. The term
excludes capabilities associated with a weapons system whose primary mission is not
intelligence.
The MIP label is a tool that allows the USD(I) to collectively manage all the dispersed funds
associated with military intelligence support to the DOD “warfighters.” As its Program Executive,
the USD(I) as DDI:
[L]eads all Department of Defense actions involving the MIP, including issuing guidance,
coordinating its development and execution, and chairing groups to address programmatic
issues; and monitors the broader Battle Space Awareness Portfolio to achieve balance and
80
For information on specifics associated with NIP and MIP spending over time, see CRS Report R42061, Intelligence
Spending and Appropriations: Issues for Congress, by Marshall C. Erwin and Amy Belasco.
81
synergies from its panoply of intelligence, surveillance and reconnaissance, command and
control complementary capabilities.115
MIP Component Managers are “the individual(s) assigned by either this Directive, the Secretary
of a Military Department, or the Commander, USSOCOM ... responsible for managing MIP
110
Mark Lowenthal, Intelligence: From Secrets to Policy, 5th Edition, (Washington DC: Sage CQ Press, 2012), p. 52.
82111
Elkins, p. 4-5.
83112
See Robert Mirabello, “Budget and Resource Management,” Intelligencer: Journal of U.S. Intelligence Studies, Volvol.
20, No. 2, (Fall/Winter 2013), p. 68, at
http://www.afio.com/publications/MIRABELLO%20Pages%20from%20INTEL_FALLWINTER2013_Vol20_No2.pdf
84113
Elkins, p. 4-11.
85114
DOD Directive 5205.12 (3) (a).
115
Mirabello, p. 68.
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synergies from its panoply of intelligence, surveillance and reconnaissance, command and
control complementary capabilities.86
MIP Component Managers are “the individual(s) assigned by either this Directive, the Secretary
of a Military Department, or the Commander, USSOCOM ... responsible for managing MIP
resources within his or her respective MIP Component in accordance with USD(I)” guidance and
policy.”87116 The MIP components include the Office of the Secretary of Defense, Military
Departments, U.S. Special Operations Command (USSOCOM), DIA, NGA, NRO, and the
NSA/CSS.88117
Table A-1 identifies four defense NIP programs: the Consolidated Cryptologic Program (CCP);
General Defense Intelligence Program (GDIP); National Geospatial-Intelligence Program (NGP);
and the National Reconnaissance Program (NRP). Intelligence Authorization Legislation passed
in authorization legislation passed in
July 2014 merged the Foreign Counterintelligence Program (FCIP) into the GDIP program.89118
Table A-1 identifies eight nondefense NIP programs: the Central Intelligence Agency Program
(CIAP); the CIA’s Retirement and Disability System90System119 (CIARDS); the Office of the DNI91DNI120
(CMA); and the intelligence entities within the departments of Energy, Homeland Security,
Justice, State, and the Treasury.
Table A-1 identifies ten10 MIP programs: the DIA MIP, NGA MIP, NRO MIP, NSA/CSS MIP, OSD
MIP, USSOCOM MIP and service-specific MIP (Air Force MIP, Army MIP, Navy MIP, and
Marine Corps MIP). Of the nine9 Combatant Commands (COCOMs) only USSOCOM has its own
budget.92121 The other COCOMs submit their budget requests through the military departments.
Table A-2 illustrates that six IC components have both MIP and NIP funding sources. The
directors of DIA, NGA, NRO, and NSA are “dual-hatted” as Program Managers for their NIP
funds and Component Managers for their MIP funds. Exactly what goes into what budgetary pot
is not precise. Those decisions are guided by what is known as the NIP MIP “Rules of the
Road.”93
86
Mirabello, p. 68.
122
116
DOD Directive 5205.12 (3) (c).
88
DOD Directive 5205.12 (3) (b).
89118
P.L. 113-126, §314.
90119
CIARDS is a small fund that provides pension benefits to a selected group of the CIA’s workforce—particularly
those whose identities must be protected. Section 202 of the IAA for FY2014 amends the Central Intelligence Agency
Retirement Act to expand the definition of "qualifying service" for purposes of designating CIA employees to
participate in a retirement system based on a period of service abroad that is hazardous to life or health, or that is
determined to be specialized because of security requirements, to include the service of CIA employees on detail to
another agency. Without this provision, such qualifying service had to be performed within the CIA. (The provision
made such qualifying detail service applicable to retired or deceased CIA officers.)
91120
The CMA, also referred to as the Intelligence Community Management Account or ICMA, is an account name that
refers back to the IC Community Management Staff (CMS). The CMS supported the Director of Central Intelligence in
his role as community manager. When the position of DNI was established, much of the old CMS became the new
ODNI.
92121
Elkins, p. 6-6. For more on COCOMs, see CRS Report R42077, The Unified Command Plan and Combatant
Commands: Background and Issues for Congress, by Andrew Feickert.
93122
Michael Vickers, "Defense Intelligence Resources," PowerPoint Presentation to Armed Forces Communications and
Electronics Association (AFCEA), March 13, 2014, Slide 37.
87117
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Table A-1. National and Military Intelligence Programs (NIP and MIP)
National Intelligence Program
Defense NIP:
Consolidated Cryptologic
Program (CCP)
Funds the signals intelligence (SIGINT) mission throughout the IC.
General Defense Intelligence
Program (GDIP)
Funds wide range of national-level operations and intelligence
infrastructure throughout the IC. The Foreign Counter IntelligenceCounterintelligence
Program (FCIP) merged with GDIP in IAA for FY2014.
National GeospatialIntelligence Program (NGP)
Funds national-level geospatial-intelligence related activities throughout
the IC.
National Reconnaissance
Program (NRP)
Funds national-level satellite reconnaissance activities of the National
Reconnaissance Office.
Nondefense NIP:
Central Intelligence Agency
Program (CIAP)
Funds complete range of CIA activities.
CIA Retirement and Disability
Program (CIARDs)
Funds pension benefits to a selected group of the CIA’s workforce—
particularly those whose identities must be protected.
Community Management
Account (CMA)
Funds the Office of the DNI.
NIP Programs associated with
Departments of Energy,
Homeland Security, Justice
(within FBI and DEA), State
and the Treasury
Funds intelligence integration/analysis offices in each department in
support of the DNI and IC mission.
Military Intelligence Program
DIA MIP
Tactical and joint general military intelligence and counter-intel activities
of DIA, military services and Combat Commands not covered by GDIP.
NGA MIP
Tactical military geospatial intelligence related activities of the NGA,
military services and Combat Commands not funded by the NGP.
NRO MIP
Tactical military air and space reconnaissance related activities of the
NRO not funded by the NRP.
NSA/CSS MIP
Tactical military SIGINT related activities of the NSA and CSS not funded
by the CCP.
OSD MIP
Office of the Secretary of Defense managed, defense-wide intelligence
programs not covered by the GDIP or DIA MIP.
U.S. Special Operations
Command (USSOCOM) MIP
Tactical military intelligence related activities and asset designed to
support USSOCOM missions not funded by the NIP.
Service Specific MIP:
Intelligence and related activities and assets of Servicesservices “organic” to
military combat units, or parts of joint/defense wide intelligence activities
or programs in which they participate. These activities are generally
within the scope of the Title 10 mission of the military departments to
organize, train, and equip forces for combat application.
USAF, USA, USN, USMC
Source: Dan Elkins, Managing Intelligence Resources, 4th Edition, (Dewey, AZ: DWE Press, 2014): Chapter 4 pp 116.
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Table A-2. Intelligence Community Components: NIP and MIP Funding Sources
Component
MIP Sources
CIA
NIP Sources
CIAP
COCOMs (Except SOCOM)
DIA MIP
GDIP, NGP, CCP
DIA
DIA MIP
GDIP
DOE, DOJ, DOS, Treasury
Department Specific NIP
NGA
NGA MIP
NGP
NRO
NRO MIP
NRP
NSA
NSA MIP
CCP
ODNI
CMA
USDI
OSD MIP
USSOCOM
USSOCOM MIP
GDIP, NGP, CCP
Source: Dan Elkins, Managing Intelligence Resources, 4th Edition, (Dewey, AZ: DWE Press, 2014): Chapter 4 pp 116.
Author Contact Information
Anne Daugherty Miles
Analyst in Intelligence and National Security Policy
amiles@crs.loc.gov, 7-7739
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