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106th Congress Rept. 106-130
1st Session HOUSE OF REPRESENTATIVES Part 1
=======================================================================
INTELLIGENCE AUTHORIZATION ACT FOR FISCAL YEAR 2000
_______
May 7, 1999.--Ordered to be printed
_______
Mr. Goss, from the Permanent Select Committee on Intelligence,
submitted the following
R E P O R T
together with
ADDITIONAL VIEWS
[To accompany H.R. 1555]
[Including cost estimate of the Congressional Budget Office]
The Permanent Select Committee on Intelligence, to whom was
referred the bill (H.R. 1555) to authorize appropriations for
fiscal year 2000 for intelligence and intelligence-related
activities of the United States Government, the Community
Management Account, and the Central Intelligence Agency
Retirement and Disability System, and for other purposes,
having considered the same, report favorably thereon with an
amendment and recommend that the bill as amended do pass.
CONTENTS
Page
The bill as reported............................................. 2
Purpose.......................................................... 7
Overall perspective on the intelligence budget and committee
intent......................................................... 7
Scope of committee review........................................ 7
Committee findings and recommendations........................... 8
Areas of Special Interest........................................ 11
The Threat from the People's Republic of China............... 11
National Security Agency..................................... 12
National Imagery and Mapping Agency.......................... 13
Oversight Issues............................................. 13
Joint Military Intelligence Program.............................. 14
Tactical Intelligence and Related Activities..................... 19
Section-by-Section Analysis of the Bill as Reported.............. 25
Title I--Intelligence Activities............................. 25
Section 101--Authorization of Appropriations............. 25
Section 102--Classified Schedule of Authorizations....... 25
Section 103--Personnel Ceiling Adjustments............... 25
Section 104--Community Management Account................ 25
Section 105--Authorization of Emergency Supplemental
Appropriations for Fiscal Year 1999.................... 26
Title II--Central Intelligence Agency Retirement and
Disability System.......................................... 26
Section 201--Authorization of Appropriations............. 26
Title III--General Provisions................................ 26
Section 301--Increase in Employee Compensation and
Benefits Authorized by Law............................. 26
Section 302--Restriction on Conduct of Intelligence
Activities............................................. 26
Section 303--Sense of Congress on Intelligence Community
Contracting............................................ 27
Title IV--Central Intelligence Agency........................ 27
Section 401--Two-year Extension of CIA Central Services
Program................................................ 27
Title V--Department of Defense............................... 27
Section 501--Protection of Operational Files of the
National Imagery and Mapping Agency.................... 27
Committee position............................................... 27
Findings and recommendations of the Committee on Government
Reform and Oversight........................................... 28
Oversight findings and recommendations........................... 28
Fiscal year cost projections..................................... 28
Congressional Budget Office estimates............................ 28
Committee cost estimates......................................... 31
Specific Constitutional authority for Congressional enactment of
this legislation............................................... 31
Changes to existing law.......................................... 31
Additional views................................................. 35
The amendment is as follows:
Strike out all after the enacting clause and insert in lieu
thereof the following:
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``Intelligence
Authorization Act for Fiscal Year 2000''.
(b) Table of Contents.--The table of contents for this Act is as
follows:
Sec. 1. Short title; table of contents.
TITLE I--INTELLIGENCE ACTIVITIES
Sec. 101. Authorization of appropriations.
Sec. 102. Classified schedule of authorizations.
Sec. 103. Personnel ceiling adjustments.
Sec. 104. Community Management Account.
Sec. 105. Authorization of emergency supplemental appropriations for
fiscal year 1999.
TITLE II--CENTRAL INTELLIGENCE AGENCY RETIREMENT AND DISABILITY SYSTEM
Sec. 201. Authorization of appropriations.
TITLE III--GENERAL PROVISIONS
Sec. 301. Increase in employee compensation and benefits authorized by
law.
Sec. 302. Restriction on conduct of intelligence activities.
Sec. 303. Sense of Congress on intelligence community contracting.
TITLE IV--CENTRAL INTELLIGENCE AGENCY
Sec. 401. Two-year extension of CIA central services program.
TITLE V--DEPARTMENT OF DEFENSE INTELLIGENCE ACTIVITIES
Sec. 501. Protection of operational files of the National Imagery and
Mapping Agency.
TITLE I--INTELLIGENCE ACTIVITIES
SEC. 101. AUTHORIZATION OF APPROPRIATIONS.
Funds are hereby authorized to be appropriated for fiscal year 2000
for the conduct of the intelligence and intelligence-related activities
of the following elements of the United States Government:
(1) The Central Intelligence Agency.
(2) The Department of Defense.
(3) The Defense Intelligence Agency.
(4) The National Security Agency.
(5) The Department of the Army, the Department of the Navy,
and the Department of the Air Force.
(6) The Department of State.
(7) The Department of the Treasury.
(8) The Department of Energy.
(9) The Federal Bureau of Investigation.
(10) The National Reconnaissance Office.
(11) The National Imagery and Mapping Agency.
SEC. 102. CLASSIFIED SCHEDULE OF AUTHORIZATIONS.
(a) Specifications of Amounts and Personnel Ceilings.--The amounts
authorized to be appropriated under section 101, and the authorized
personnel ceilings as of September 30, 2000, for the conduct of the
intelligence and intelligence-related activities of the elements listed
in such section, are those specified in the classified Schedule of
Authorizations prepared to accompany the bill H.R. 1555 of the One
Hundred Sixth Congress.
(b) Availability of Classified Schedule of Authorizations.--The
Schedule of Authorizations shall be made available to the Committees on
Appropriations of the Senate and House of Representatives and to the
President. The President shall provide for suitable distribution of the
Schedule, or of appropriate portions of the Schedule, within the
Executive Branch.
SEC. 103. PERSONNEL CEILING ADJUSTMENTS.
(a) Authority for Adjustments.--With the approval of the Director of
the Office of Management and Budget, the Director of Central
Intelligence may authorize employment of civilian personnel in excess
of the number authorized for fiscal year 2000 under section 102 when
the Director of Central Intelligence determines that such action is
necessary to the performance of important intelligence functions,
except that the number of personnel employed in excess of the number
authorized under such section may not, for any element of the
intelligence community, exceed two percent of the number of civilian
personnel authorized under such section for such element.
(b) Notice to Intelligence Committees.--The Director of Central
Intelligence shall promptly notify the Permanent Select Committee on
Intelligence of the House of Representatives and the Select Committee
on Intelligence of the Senate whenever he exercises the authority
granted by this section.
SEC. 104. INTELLIGENCE COMMUNITY MANAGEMENT ACCOUNT.
(a) Authorization of Appropriations.--There is authorized to be
appropriated for the Intelligence Community Management Account of the
Director of Central Intelligence for fiscal year 2000 the sum of
$193,572,000. Within such amount, funds identified in the classified
Schedule of Authorizations referred to in section 102(a) for the
Advanced Research and Development Committee shall remain available
until September 30, 2001.
(b) Authorized Personnel Levels.--The elements within the Community
Management Account of the Director of Central Intelligence are
authorized 348 full-time personnel as of September 30, 2000. Personnel
serving in such elements maybe permanent employees of the Community
Management Staff or personnel detailed from other elements of the
United States Government.
(c) Classified Authorizations.--
(1) Authorization of appropriations.--In addition to amounts
authorized to be appropriated for the Community Management
Account by subsection (a), there are also authorized to be
appropriated for the Community Management Account for fiscal
year 2000 such additional amounts as are specified in the
classified Schedule of Authorizations referred to in section
102(a). Such additional amounts shall remain available until
September 30, 2001.
(2) Authorization of personnel.--In addition to the personnel
authorized by subsection (b) for elements of the Community
Management Account as of September 30, 2000, there are hereby
authorized such additional personnel for such elements as of
that date as are specified in the classified Schedule of
Authorizations.
(d) Reimbursement.--Except as provided in section 113 of the National
Security Act of 1947 (50 U.S.C. 404h), during fiscal year 2000, any
officer or employee of the United States or a member of the Armed
Forces who is detailed to the staff of the Community Management Account
from another element of the United States Government shall be detailed
on a reimbursable basis, except that any such officer, employee, or
member may be detailed on a nonreimbursable basis for a period of less
than one year for the performance of temporary functions as required by
the Director of Central Intelligence.
(e) National Drug Intelligence Center.--
(1) In general.--Of the amount appropriated pursuant to the
authorization in subsection (a), the amount of $27,000,000
shall be available for the National Drug Intelligence Center.
Within such amount, funds provided for research, development,
test, and evaluation purposes shall remain available until
September 30, 2001, and funds provided for procurement purposes
shall remain available until September 30, 2002.
(2) Transfer of funds.--The Director of Central Intelligence
shall transfer to the Attorney General of the United States
funds available for the National Drug Intelligence Center under
paragraph (1). The Attorney General shall utilize funds so
transferred for the activities of the National Drug
Intelligence Center.
(3) Limitation.--Amounts available for the National Drug
Intelligence Center may not be used in contravention of the
provisions of section 103(d)(1) of the National Security Act of
1947 (50 U.S.C. 403-3(d)(1)).
(4) Authority.--Notwithstanding any other provision of law,
the Attorney General shall retain full authority over the
operations of the National Drug Intelligence Center.
SEC. 105. AUTHORIZATION OF EMERGENCY SUPPLEMENTAL APPROPRIATIONS FOR
FISCAL YEAR 1999.
(a) Authorization.--Amounts authorized to be appropriated for fiscal
year 1999 under section 101 of the Intelligence Authorization Act for
Fiscal Year 1999 (Public Law 105-272) for the conduct of the
intelligence activities of elements of the United States Government
listed in such section are hereby increased, with respect to any such
authorized amount, by the amount by which appropriations pursuant to
such authorization were increased by an emergency supplemental
appropriation in a supplemental appropriations Act for fiscal year 1999
that is enacted after May 1, 1999, for such amounts as are designated
by Congress as an emergency requirement pursuant to section
251(b)(2)(A) of the Balanced Budget and Emergency Deficit Control Act
of 1985 (2 U.S.C. 901(b)(2)(A)).
(b) Ratification.--For purposes of section 504 of the National
Security Act of 1947 (50 U.S.C. 414), any obligation or expenditure of
those amounts deemed to have been specifically authorized by Congress
in the Act referred to in subsection (a) is hereby ratified and
confirmed.
TITLE II--CENTRAL INTELLIGENCE AGENCY RETIREMENT AND DISABILITY SYSTEM
SEC. 201. AUTHORIZATION OF APPROPRIATIONS.
There is authorized to be appropriated for the Central Intelligence
Agency Retirement and Disability Fund for fiscal year 2000 the sum of
$209,100,000.
TITLE III--GENERAL PROVISIONS
SEC. 301. INCREASE IN EMPLOYEE COMPENSATION AND BENEFITS AUTHORIZED BY
LAW.
Appropriations authorized by this Act for salary, pay, retirement,
and other benefits for Federal employees may be increased by such
additional or supplemental amounts as may be necessary for increases in
such compensation or benefits authorized by law.
SEC. 302. RESTRICTION ON CONDUCT OF INTELLIGENCE ACTIVITIES.
The authorization of appropriations by this Act shall not be deemed
to constitute authority for the conduct of any intelligence activity
which is not otherwise authorized by the Constitution or the laws of
the United States.
SEC. 303. SENSE OF CONGRESS ON INTELLIGENCE COMMUNITY CONTRACTING.
It is the sense of Congress that the Director of Central Intelligence
should continue to direct that elements of the intelligence community,
whenever compatible with the national security interests of the United
States and consistent with operational and security concerns related to
the conduct of intelligence activities, and where fiscally sound,
should competitively award contracts in a manner that maximizes the
procurement of products properly designated as having been made in the
United States.
TITLE IV--CENTRAL INTELLIGENCE AGENCY
SEC. 401. TWO-YEAR EXTENSION OF CIA CENTRAL SERVICES PROGRAM.
Section 21(h)(1) of the Central Intelligence Agency Act of 1949 (50
U.S.C. 403u(h)(1)) is amended by striking out ``March 31, 2000.'' and
inserting ``March 31, 2002.''.
TITLE V--DEPARTMENT OF DEFENSE INTELLIGENCE ACTIVITIES
SEC. 501. PROTECTION OF OPERATIONAL FILES OF THE NATIONAL IMAGERY AND
MAPPING AGENCY.
(a) In General.--Subchapter I of chapter 22 of title 10, United
States Code, is amended by adding at the end the following new section:
``Sec. 446. Protection of operational files
``(a) Exemption of Certain Operational Files From Search, Review,
Publication, or Disclosure.--(1) The Director of the National Imagery
and Mapping Agency, with the coordination of the Director of Central
Intelligence, may exempt operational files of the National Imagery and
Mapping Agency from the provisions of section 552 of title 5 (Freedom
of Information Act), which require publication, disclosure, search, or
review in connection therewith.
``(2)(A) Subject to subparagraph (B), for the purposes of this
section, the term `operational files' means files of the National
Imagery and Mapping Agency (hereinafter in this section referred to as
`NIMA') concerning the activities of NIMA that before the establishment
of NIMA were performed by the National Photographic Interpretation
Center of the Central Intelligence Agency (NPIC), that document the
means by which foreign intelligence or counterintelligence is collected
through scientific and technical systems.
``(B) Files which are the sole repository of disseminated
intelligence are not operational files.
``(3) Notwithstanding paragraph (1), exempted operational files shall
continue to be subject to search and review for information
concerning--
``(A) United States citizens or aliens lawfully admitted for
permanent residence who have requested information on
themselves pursuant to the provisions of section 552 of title
5, or section 552a of title 5 (Privacy Act of 1974);
``(B) any special activity the existence of which is not
exempt from disclosure under the provisions of section 552 of
title 5; or
``(C) the specific subject matter of an investigation by the
any of the following for any impropriety, or violation of law,
Executive order, or Presidential directive, in the conduct of
an intelligence activity:
``(i) The Permanent Select Committee on Intelligence
of the House of Representatives.
``(ii) The Select Committee on Intelligence of the
Senate.
``(iii) The Intelligence Oversight Board.
``(iv) The Department of Justice.
``(v) The Office of General Counsel of NIMA.
``(vi) The Office of the Director of NIMA.
``(4)(A) Files that are not exempted under paragraph (1) which
contain information derived or disseminated from exempted operational
files shall be subject to search and review.
``(B) The inclusion of information from exempted operational files in
files that are not exempted under paragraph (1) shall not affect the
exemption under paragraph (1) of the originating operational files from
search, review publication, or disclosure.
``(C) Records from exempted operational files which have been
disseminated to and referenced in files that are not exempted under
paragraph (1) and which have been returned to exempted operational
files for sole retention shall be subject to search and review.
``(5) The provisions of paragraph (1) may not be superseded except by
a provision of law which is enacted after the date of enactment of this
section, and which specifically cites and repeals or modifies its
provisions.
``(6)(A) Except as provided in subparagraph (B), whenever any person
who has requested agency records under section 552 of title 5, alleges
that NIMA has withheld records improperly because of failure to comply
with any provision of this section, judicial review shall be available
under the terms set forth in section 552(a)(4)(B) of title 5.
``(B) Judicial review shall not be available in the manner provided
for under subparagraph (A) as follows:
``(i) In any case in which information specifically
authorized under criteria established by an Executive Order to
be kept secret in the interests of national defense or foreign
relations is filed with, or produced for, the court by NIMA,
such information shall be examined ex parte, in camera by the
court.
``(ii) The court shall, to the fullest extent practicable,
determine the issues of fact based on sworn written submissions
of the parties.
``(iii) When a complainant alleges that requested records are
improperly withheld because of improper placement solely in
exempted operational files, the complainant shall support such
allegation with a sworn written submission based upon personal
knowledge or otherwise admissible evidence.
``(iv)(I) When a complainant alleges that requested records
were improperly withheld because of improper exemption of
operational files, NIMA shall meet its burden under section
552(a)(4)(B) of title 5, by demonstrating to the court by sworn
written submission that exempted operational files likely to
contain responsible records currently perform the functions set
forth in paragraph (2).
``(II) The court may not order NIMA to review the content of
any exempted operational file or files in order to make the
demonstration required under subclause (I), unless the
complainant disputes NIMA's showing with a sworn written
submission based on personal knowledge or otherwise admissible
evidence.
``(v) In proceedings under clauses (iii) and (iv), the
parties may not obtain discovery pursuant to rules 26 through
36 of the Federal Rules of Civil Procedure, except that
requests for admissions may be made pursuant to rules 26 and
36.
``(vi) If the court finds under this paragraph that NIMA has
improperly withheld requested records because of failure to
comply with any provision of this subsection, the court shall
order NIMA to search and review the appropriate exempted
operational file or files for the requested records and make
such records, or portions thereof, available in accordance with
the provisions of section 552 of title 5, and such order shall
be the exclusive remedy for failure to comply with this
subsection.
``(vii) If at any time following the filing of a complaint
pursuant to this paragraph NIMA agrees to search the
appropriate exempted operational file or files for the
requested records, the court shall dismiss the claim based upon
such complaint.
``(viii) Any information filed with, or produced for the
court pursuant to clauses (i) and (iv) shall be coordinated
with the Director of Central Intelligence prior to submission
to the court.
``(b) Decennial Review of Exempted Operational Files.--(1) Not less
than once every ten years, the Director of the National Imagery and
Mapping Agency and the Director of Central Intelligence shall review
the exemptions in force under subsection (a)(1) to determine whether
such exemptions may be removed from the category of exempted files or
any portion thereof. The Director of Central Intelligence must approve
any determination to remove such exemptions.
``(2) The review required by paragraph (1) shall include
consideration of the historical value or other public interest in the
subject matter of the particular category of files or portions thereof
and the potential for declassifying a significant part of the
information contained therein.
``(3) A complainant that alleges that NIMA has improperly withheld
records because of failure to comply with this subsection may seek
judicial review in the district court of the United States of the
district in which any of the parties reside, or in the District of
Columbia. In such a proceeding, the court's review shall be limited to
determining the following:
``(A) Whether NIMA has conducted the review required by
paragraph (1) before the expiration of the ten-year period
beginning on the date of the enactment of this section or
before the expiration of the ten-year period beginning on the
date of the most recent review.
``(B) Whether NIMA, in fact, considered the criteria set
forth in paragraph (2) in conducting the required review.''.
(b) Clerical Amendment.--The table of sections at the beginning of
subchapter I of chapter 22 of title 10, United States Code, is amended
by adding at the end the following new item:
``446. Protection of operational files.''.
Purpose
The bill would:
(1) Authorize appropriations for fiscal year 2000 for
(a) the intelligence and intelligence-related
activities of the U.S. Government, (b) the Community
Management Account, and (c) the Central Intelligence
Agency Retirement and Disability System;
(2) Authorize the personnel ceilings on September 30,
2000 for the intelligence and intelligence-related
activities of the U.S. Government and permit the
Director of Central Intelligence to authorize personnel
ceilings in Fiscal Year 2000 for any intelligence
element up to two percent above the authorized levels,
with the approval of the Director of the Office of
Management and Budget;
(3) Authorize $27 million for the National Drug
Intelligence Center in Johnstown, Pennsylvania;
(4) Authorize increased appropriations included in
the currently pending ``Kosovo'' emergency supplemental
appropriations bill for the conduct of intelligence and
intelligence-related activities by the United States
Government by the amount therein appropriated as
emergency supplemental appropriations;
(5) Authorize the continuation of the CIA Central
Services Program through March 31, 2002; and
(6) Authorize the protection of the operational files
of the National Imagery and Mapping Agency.
Overall Perspective on the Intelligence Budget and Committee Intent
The classified annex to this public report includes the
classified Schedule of Authorizations and its associated
language. The committee views the classified Annex as an
integral part of this legislation. The classified Annex
contains a thorough discussion of all budget issues considered
by the committee, which underlies the funding authorization
found in the Schedule of Authorizations. The committee intends
that all intelligence programs discussed in the classified
Annex to this report be conducted in accord with the guidance
and limitations set forth as associate language therein. The
classified Schedule is incorporated directly into this
legislation by virtue of section 102 of the bill. The
classified Annex is available for review by all Members of the
House of Representatives, subject to the requirements of clause
13 of Rule XXIV of the House.
Scope of Committee Review
U.S. intelligence and intelligence-related activities under
the jurisdiction of the committee include the National Foreign
Intelligence Program (NFIP), and the Tactical Intelligence and
Related Activities (TIARA) and the Joint Military Intelligence
Program (JMIP) of the Department of Defense.
The NFIP consists of all programs of the Central
Intelligence Agency, as well as those national foreign
intelligence and/or counterintelligence programs conducted by:
(1) the Department of Defense; (2) the Defense Intelligence
Agency; (3) the National Security Agency; (4) the Departments
of the Army, Navy, and Air Force; (5) the Department of State;
(6) the Department of the Treasury; (7) the Department of
Energy; (8) the Federal Bureau of Investigation; (9) the
National Reconnaissance Office; and (10) the National Imagery
and Mapping Agency.
The Department of Defense TIARA are a diverse array of
reconnaissance and target acquisition programs that are a
functional part of the basic military force structure and
provide direct information support to military operations.
TIARA, as defined by the Joint Chiefs of Staff and the
Secretary of Defense, include those military intelligence
activities outside the General Defense Intelligence Program
that respond to the needs of military commanders for
operational support information, as well as to national
command, control, and intelligence requirements. The Armed
Services Committee in the House of Representatives has joint
oversight and authorizing jurisdiction of the programs
comprising TIARA.
The JMIP was established in 1995 to provide integrated
program management of defense intelligence elements that
support defense-wide or theater-level consumers. Included
within JMIP are aggregations created for management efficiency
and characterized by similarity, either in intelligence
discipline (e.g., Signals Intelligence (SIGINT), Imagery
Intelligence (IMINT)), or function (e.g., satellite support,
aerial reconnaissance). The following aggregations are included
in the JMIP: (1) the Defense Cryptologic Program (DCP); (2) the
Defense Imagery and Mapping Program (DIMAP); (3) the Defense
General Intelligence Applications Program (DGIAP), which itself
includes (a) the Defense Airborne Reconnaissance Program
(DARP), (b) the Defense Intelligence Tactical Program (DITP),
(c) the Defense Intelligence Special Technologies Program
(DISTP), (d) the Defense Intelligence Counterdrug Program
(DICP), and (e) the Defense Space Reconnaissance Program
(DSRP). As with TIARA programs, the Armed Services Committee in
the House of Representatives has joint oversight and
authorizing jurisdiction of the programs comprising the JMIP.
Committee Findings and Recommendations
The committee completed its review of the President's
fiscal year 2000 budget, carrying out its annual responsibility
to prepare an authorization based on close examination of
intelligence programs and proposed expenditures. The review
reflected the committee's continuing belief that intelligence
activities must be examined by function, as well as by program.
Thus, the committee's review was again structured across
program lines and intelligence disciplines and themes. The
committee held nine full committee budget-related hearings.
Issues addressed included: acquisition of overhead collection
systems, Signals Intelligence (SIGINT), Imagery Intelligence
(IMINT), Human Intelligence (HUMINT), Analysis and Production,
and Covert Action. A separate hearing was also held that dealt
with support to military operations. Two hearings were held
addressing the DCI's overall budget submission and the state of
health of the Intelligence Community. The Director of Central
Intelligence (DCI) , and the Deputy Director of Central
Intelligence for Community Management (DDCI/CM) testified in
order to personally explain their views and plans for the
future of intelligence and the Intelligence Community. The
committee also had six ``capabilities'' demonstrations and
briefings that presented to the committee a variety of
operational capabilities associated with all aspects of
intelligence collection and analysis. There were, in addition,
numerous individual briefings of Members and over 100 staff
briefings on programs, specific activities, and budget
requests.
The committee continued to place heavy emphasis on
understanding and addressing the future needs of the
Intelligence Community, and the several distinct roles that it
plays in national security. For the past four years, the
committee has discussed the fact that our national security is
affected by a set of international issues more diverse than
those emphasized during the Cold War. Heretofore, some of these
issues have not been identified so readily with our global
interests. Throughout our review, there has been a constant
theme: the threats we face demand that the Intelligence
Community be vigilant on both the strategic and tactical levels
and the Intelligence Community must maintain a world-wide view,
with a highly flexible set of resources.
The fact remains, however, that our intelligence
capabilities have dwindled since the breakup of the Soviet
Union, and we have failed to build new capabilities that will
become increasingly critical. This is especially true in the
areas of espionage, covert action, and in our toughest SIGINT
activities. We, as a nation, cannot continue this course.
Therefore, since the beginning of the 104th Congress, the
committee has focused on increasing investments for
intelligence. The committee has highlighted not only areas of
greatest immediate priority, but also stressed the need for
enhancing global coverage areas to rebuild important
indications and warning capabilities for policy makers and
military commanders. Given the rapidly changing nature of
intelligence targets, the growing demands made of the
Intelligence Community and recent, real-world tests of our
intelligence capabilities, we believe that significant
additional investments will be necessary. Specifically, this
year, we have focused investments in the following areas:
Correcting the imbalances between collection--on the
one hand--and tasking, processing, exploitation and
dissemination (TPED), and analysis--on the other;
Recapitalizing SIGINT, also emphasizing the need to
finalize a strategic plan for SIGINT and taking steps
to implement changes in process and management;
Innovating paradigms for imagery, to include
commercial resources;
Building a stronger and more extensive clandestine
HUMINT capability; and
Putting new tools in the covert action ``toolbox.''
The Intelligence Community truly represents our nation's
first line of defense. The world that we face today, and that
we will be facing in the next 10-15 years, poses different
threats to national security from those prevalent in preceding
decades. Although it is true that we are at less risk of a
massive nuclear confrontation, other aspects of our security
are at greater risk. For instance, there is a growing
possibility that a rogue nation or group will acquire the
ability to attack U.S. interests, or the United States itself,
with a nuclear, biological, or chemical device, or some other
weapon of mass destruction. These possibilities place
increasing and complex demands on the Intelligence Community,
and require flexible and robust intelligence capabilities. The
increasing assaults on our national security posed by terrorism
(international and domestic), narcotics trafficking,
international organized crime, proliferation of weapons of mass
destruction and conventional weapons, illicit arms sales and
foreign intelligence activities must be countered decisively.
To do so requires a solid foundation of intelligence collection
and analysis, and, sometimes, under proper Presidential
direction, actions by the Intelligence Community itself.
In all cases, the Intelligence Community's consumers expect
the Community to retain its traditional role of providing
strategic intelligence. Whenever possible, the Intelligence
Community is expected to provide insightful warning of
impending crises, whether diplomatic, commercial, political, or
military. Such early indicators increase the likelihood that a
crisis will be resolved with words instead of weapons.
For the military, however, the revolutionary nature of
modern warfare, the altered global threat, and the increasing
demands of contingency operations (i.e., peacekeeping, peace
enforcement, and humanitarian relief) prove the need for
balance between strategic and tactical intelligence support,
always remembering that intelligence is a low cost force
protector and force multiplier. Similarly, the law enforcement
community has come to expect the Intelligence Community to
focus heavily on providing actionable tactical intelligence, as
well as direct support to joint and multilateral operations.
Ensuring that this balance exists is critical. Therefore, while
ensuring that the military has the best possible intelligence,
proper attention also must be given to maintaining the
capabilities for strategic intelligence that are critical for
policy planning, crisis control, and mission success.
Intelligence, tactical and strategic, is needed to address
the salient threats of the day. The United States continues to
face a dilemma in its dealings with leaders like Saddam
Hussein, who possess various weapons of mass destruction and
have demonstrated a will to use them. Saddam Hussein has
consistently threatened the stability of a strategically
important region. The United States must have the intelligence
that would not only support a policy decision and its
implementation, but would also provide the information
necessary to develop options. The fact is that we do not have
the intelligence we need and Saddam Hussein and others like him
will continue to challenge our foreign policy objectives and
threaten our national security. Perhaps more frightening still
are the individuals and transnational groups who may also
acquire similar capabilities. The only certainty is that, as
these individuals' and groups' resources increase, their
capabilities will grow more fearsome, and their tactics will
become harder to detect. But, we cannot look at these threats
alone.
The most demanding circumstances in which the Intelligence
Community must operate are those in which U.S. military forces
and official personnel are deployed in potentially hostile
situations, such as currently in the former Yugoslavia. The
role of intelligence in operations conducted in Kosovo and the
Balkans, generally, is extensive. It ranges from building
target ``folders'' to assessing damage; enhancing force
protection to predicting and assessing the impact of the mass
migration of refugees; understanding the plans and attentions
of key leaders, to provide the President with options between
sending a demarche, and launching a cruise missile. And, all
the while, the President, his cabinet and military commanders
expect that the Community will be the bellwether for
identifying the next areas of crisis or concern around the
globe. Moreover, the Intelligence Community may not, for a
moment, ignore the more traditional geo-political and military
threats such as in North Korea and China and in a Russia that
may yet collapse.
As a result of these demands, the Committee has evaluated
the budget submission on a program-by-program basis, assessing
each program in terms of its capabilities and how it fits into
the overall capabilities of the Intelligence Community, now and
into the future. At this time, as a consequence of the demands
and challenges faced by the Intelligence Community, we
recommend an authorization that is approximately one percent
above the President's request.
Areas of Special Interest
The Threat From the People's Republic of China
The committee is very concerned about the alarming
allegations of espionage and illegal technology acquisition
directed by the People's Republic of China. It also has serious
concerns about corresponding weaknesses in U.S.
counterintelligence and security programs, and about
insufficient Intelligence Community counterintelligence
capabilities. As a result, the committee has taken a series of
aggressive steps in the Intelligence Authorization Act for
Fiscal Year 2000 that are designed to counter the growing
Chinese intelligence threat to U.S. national security
interests. These measures include specifically targeted funding
increases and directed oversight of key Intelligence Community
functions.
In the area of intelligence analysis, the committee has
emphasized the need for more competitive analysis. As part of
this effort, the committee has authorized additional funds
specifically to subject the China-Taiwan Issues Group in the
Central Intelligence Agency's Directorate of Intelligence to
rigorous external competitive analysis to ensure that this key
analytical component is held to the highest analytic standards
possible. The committee has directed the Deputy Director for
Intelligence to expose CIA's China analysts to ``contrary
thinking'' to challenge their suppositions and analytical
methodologies more aggressively, and to forestall any
possibility of ``group think.'' Furthermore, to facilitate the
determination of future resource and oversight requirements,
the committee has asked the Deputy Director for Intelligence
for bi-annual progress reports on the application of
alternative contrary-type analysis to the China-Taiwan Issues
Group.
For some time, the committee has been troubled by the level
of resources that the Department of Energy (DoE) dedicates to
analysis of technical subject matter relating to foreign
nuclear weapons programs and capabilities. The Chinese and
Russian nuclear weapons programs are of utmost interest to U.S.
policymakers responsible for nonproliferation and other
important national security programs, yet analysis of these
programs at DoE has not kept pace with demand. The committee
believes that comprehensive intelligence analysis of foreign
nuclear programs should be considered an integral part of an
effective counterintelligence program at DoE, and has
authorized a substantial funding increase for this purpose that
focuses on the Chinese and Russian nuclear programs, and on
proliferation analysis. The committee also sustained requests
for a substantial increase in funding for DoE's Office of
Counterintelligence, and approved a subsequent adjusted request
to increase funding for a new counterintelligence cyber
information security program at DoE.
Other relevant committee initiatives address
counterintelligence shortcomings at the Federal Bureau of
Investigation (FBI) and the Department of Defense (DoD), and
provide increased funds for related offensive intelligence
collection by CIA that will enhance U.S. counterintelligence
capabilities. The committee, for example, has provided a
substantial increase in funds to enhance counterintelligence
and investigative agent training at the FBI, which is becoming
increasingly overwhelmed by the broad-based and unorthodox
intelligence collection methods employed by the Chinese. The
committee has sustained a very large increase in funding
proposed by the President to enhance DoD security by improving
acquisition protection, information systems protection, and
overall counterintelligence capabilities. The committee has
also provided a substantial funding increase for CIA operations
directed against hostile foreign intelligence services, and has
authorized additional funds to enhance CIA's understanding of
foreign Denial and Deception (D&D;) techniques. And in the area
of linguistic support to collection and analysis, the committee
has added substantial funding for language training so as to
ameliorate linguistic weaknesses across the Intelligence
Community.
National Security Agency
The Director of Central Intelligence (DCI) has stated to
the committee that recapitalization of SIGINT capabilities is
one of the top priorities for the Intelligence Community. The
recently retired, former Director of NSA suggested that a
significant amount of investment will be required in order to
revitalize the overall SIGINT system. The committee believes
that the DCI and the former Director of NSA are correct in
terms of priority and funding requirements. The committee
notes, however, that money and priority alone will not revive
NSA, nor the overall SIGINT system. In the last two Congresses,
the committee has been direct in its identification of process
and management problems that require attention. The committee
believes that NSA management has not yet stepped up to the
line. There have been some efforts at reform, but there are
still several areas where change is not only needed but is
critical for NSA's future.
The committee believes that NSA is in serious trouble. The
committee has devoted considerable attention to this issue in
the classified annex to this report. The committee believes
that NSA has very talented people dedicated to an exciting
mission, whose creativity can be unleashed and properly
directed, in concert with private industry, to build a bright
future. The committee looks forward to the opportunities for
change that present themselves with the introduction of a new
Director of NSA. The committee salutes the efforts by the
former Director, who we credit for starting some of the changes
that we have seen. But, there is much more to do. The committee
hopes that the new Director will find the specific points and
observations in the classified annex to this report of value as
he seeks to effect needed changes.
National Imagery and Mapping Agency
In the Intelligence Authorization Act for Fiscal Year 1999,
the committee approved the Administration's proposal to proceed
with the Future Imagery Architecture (FIA), within some
specified boundaries and on the condition that the
Administration take vigorous steps to provide for the essential
tasking, exploitation, and dissemination (TPED) functions
necessary to respond to the huge increase in imagery collection
capabilities promised in FIA. Despite the committee's emphasis
on the TPED issues, the committee believes that the
Administration has not adequately responded. Specifically, the
committee has not seen a serious commitment to fund TPED
solutions--costs the committee believes will be in the billions
of dollars. The committee credits the Director of NIMA for his
continued efforts at arriving at a TPED modernization plan. The
committee hopes that this plan will emerge in the very near
future, so that there can be a better understanding of the
shortfalls and the difficulties ahead.
The committee feels it is necessary in this authorization
report to reemphasize its position on TPED and its contingent
support for FIA for two basic reasons. First, at its hearing on
support to military operations, representatives from three
Commanders-in-Chief told the committee that, although they
generally supported new collection systems, they had concerns
that the massive amounts of data collected would be relatively
useless without the necessary analytic mechanisms and manpower.
The second reason is that the committee believes TPED
shortfalls may well come before FIA. In fact, TPED shortfalls
related to deployment of the Enhanced Imagery System (EIS),
planned for deployment much sooner than FIA, threaten to
overwhelm existing analytical resources almost immediately.
The committee believes that TPED shortfalls cannot best be
solved solely by hiring hundreds of additional imagery
analysts, although there will probably be a need to hire and
train many more than are currently projected. A commitment to
development and deployment of analytical tools and
infrastructure as well as, research into other areas or
capabilities that might cue an imagery analyst, are other areas
where solutions beyond mere personnel increases are in order.
Oversight Issues
The committee, in its oversight of the National Security
Agency, verbally requested access to documents in the files of
the Office of the General Counsel. While some material has been
provided to the committee, the General Counsel of the National
Security Agency has argued that there may be other documents to
which the government attorney-client privilege applies. The
committee finds this claim of privilege peculiar and urges the
Office of the General Counsel to review both the law of
attorney-client privilege as it applies to congressional
inquiries and the history of congressional oversight of U.S.
intelligence agencies. The committee would be extremely
displeased to conclude that a general counsel of an
intelligence agency was interfering with the legitimate and
constitutional rights of the committee to oversee the
intelligence activities of an executive branch agency through
an erroneous assertion of privilege. Under such circumstances,
the committee would fully exercise the many prerogatives at its
disposal to remedy the situation.
Joint Military Intelligence Program
Ground-Based Common Sensor/Prophet: Fence $12.8 million
The budget request contained $12.8 million in PE 35885G for
the ground based common sensor (GBCS)/Prophet tactical signals
intelligence (SIGINT) system.
The committee notes that the Army terminated the GBCS
program in November 1999 for lack of performance, and that the
service wants to move to the new, less complicated Prophet
program. The committee is concerned that the GBCS effort, begun
over seven years ago, was unsuccessful because of a lack of
achievable requirements and an overly sophisticated technical
approach.
The committee has received limited formal explanation of
the evolving Prophet concept. However, the Army's approach to
Prophet is more simplistic than GBCS, but appears to be
inadequate to properly collect and process modern battlefield
SIGINT necessary to provide useful tactical intelligence.
Furthermore, the committee questions the need for a ground-
based tactical SIGINT collection capability to supplement the
Army's airborne efforts.
The committee directs that no authorized or appropriated
funds be obligated or expended until the Secretary of the Army
provides the congressional defense and intelligence committees
a detailed concept of operations for Prophet together with a
detailed program definition and technical approach for this
ground-based, tactical SIGINT collection system.
The committee recommends the budget request.
Aerial Common Sensor: -$2.7 million
The budget request included $14.7 million in PE 35885G for
the Army's aerial common sensor (ACS).
The committee notes that it has received insufficient
information on the specific plan, concept of operation, and
programmatics for the ACS. Further, the Army has not yet
decided on the aircraft it will use for ACS. This will directly
affect the costs of procurement, sensors and their integration,
and operations and maintenance. Until such basic decisions are
made, the committee cannot determine the overall worth of the
program, and therefore, cannot provide a blanket authorization.
Therefore, the committee authorizes $12.0 million in this
PE, a decrease of $2.7 million for ACS. However, no funds
authorized or appropriated for ACS are to be obligated or
expended, until 30 days after the congressional defense and
intelligence committees have been provided a report that
includes the following:
(1) The specific aircraft selected for the ACS.
(2) The specific ACS concept of operations and program
plan. The program plan must include the projected funding over
the five-year defense plan, and expected total cost.
(3) Identification of the generic sensor suites and
development/acquisition plan to provide these sensors.
(4) Certification from the Director, National Security
Agency, that ACS conforms to the requirements of the 2010
Unified Cryptologic Architecture.
National Technology Alliance: +$5.0 million
The budget request contained $88.4 million in PE 35102BQ
for the Defense Imagery Analysis Program, and included for $8.1
million for National Imagery Mapping Agency (NIMA) technology
investment.
The committee is aware that the NIMA National Technology
Alliance (NTA) program continues to demonstrate its worth
within the Intelligence Community while it has expanded to
address the needs of the Department of Defense. NTA innovation
in a variety of technologies, with applications that cross
department, service and agency boundaries, is reducing costs,
increasing performance, and saving precious funds.
The committee continues to support the NTA's efforts to
provide solutions based on advances in technology for both the
Department of Defense and the Intelligence Community. The
committee recommends $93.4 million in PE 35102BQ, an increase
of $5.0 million for the NTA.
Joint Airborne SIGINT Program: -$1.6 million
The budget request contained $81.6 million in PE 35206F for
joint signals intelligence (SIGINT) avionics family (JSAF).
The committee notes that JSAF funding provides resources
for developing the two components of the future airborne SIGINT
collection system as well as the program office operations and
engineering costs. The committee also notes that the current
program office has approximately 70 personnel including both
government and contracted advisory and assistance services
employees, which the committee finds to be significantly more
dedicated manpower than other similar programs.
The committee recommends $80.0 million in PE 35206F for the
JSAF program, a reduction of $1.6 million. This reduction is to
be applied solely to reducing the JSAF program office
management staff. No reduction is to be applied to system
developments.
Tactical Control System: +$3.0 million/earmark $4.5 million
The budget request contained $69.7 million in PE 35204N for
tactical unmanned aerial vehicles (UAV) and included $24.6
million for the tactical control system (TCS). No funding was
provided for the operation of the UAV systems integration
laboratory (SIL) or to continue its development of the multiple
UAV simulation environment (MUSE).
The committee continues to be supportive of the TCS and
notes that TCS software is the key to interoperability for
future medium altitude and tactical UAVs and their payloads.
Further, the committee is supportive of the TCS objective to
interface with high altitude UAVs.
The committee notes that the Naval Surface Warfare Center
program office continues to develop most of the TCS software
and expend most of the TCS developmental funding in-house. The
committee believes that the TCS program could be more
efficiently managed if the TCS developments, including software
engineering and maintenance, were to be outsourced in whole to
the prime system integration contractor. Further, the committee
believes such outsourcing would allow for a smaller and more
efficient government program office. The committee believes
that holding a prime contractor responsible for total system
performance has demonstrated success with many other programs.
Finally, the committee notes that the U.S. Atlantic Command
(USACOM) has been without a TCS capability for its UAV testing,
and that an additional $3 million is required to provide such a
capability.
Therefore, the committee recommends $72.7 million in PE
35204N, an increase of $3 million for procuring a TCS ground
station for USACOM. Further, the committee directs a
reallocation of $4.5 million within this PE specifically to
realize the program office efficiencies discussed above and to
move software development and maintenance responsibility to the
prime contractor. This funding is to be reapplied within the
TCS program to fund the SIL MUSE efforts.
Multi-Function Self-Aligned Gate Technology: +$6.0 million
The budget request included $69.7 million in PE 35204N for
tactical unmanned aerial vehicles (UAV) and $9.4 million in
35207F for manned reconnaissance systems. No funding was
provided in either program element for the multi-function self-
aligned gate (MSAG) active aperture antenna (AAA) technology.
Congress has supported this AAA technology for several
years, and the committee is pleased with the successful MSAG
antenna demonstration completed in August 1998. During this
unprecedented demonstration, the MSAG provided wide-band,
duplex, communications links simultaneously to a ground
vehicle, an aircraft, and a satellite surrogate.
The committee believes that a single, electronically
steered antenna array that can provide multiple wide-band
communications links would be a cost-effective solution to
numerous Department of Defense communications requirements.
However, the committee is disturbed to note that the Department
has failed to provide even minimal funding for this technology.
The committee understands that the Office of the Assistant
Secretary of Defense (Command, Control, Communications and
Intelligence) is considering initiation of an advanced concept
technology demonstration of the MSAG technology and that the
Air Force is supportive of testing this antenna technology on
reconnaissance aircraft.
Therefore, the committee recommends an increase of $3.0
million in PE 35204N for operational evaluation of the MSAG AAA
on the tactical control station and the Predator UAV. The
committee also recommends an increase of $3.0 million in PE
35207F for evaluation of the MSAG AAA onboard the RC-135 Rivet
Joint aircraft.
Common Imagery Processor
The budget request included $4.9 million in PE 35208F for
the common imagery processor (CIP).
The committee understands that the CIP has been
manufactured with a known design input/output limitation that
precludes it from processing real-time imagery from current and
future high-data rate digital cameras. The committee does not
understand why the Department of Defense pursued a common
government solution to digital imagery processing without
ensuring a capability to process the high data rates from
current and future digital cameras. Further, the committee is
aware that the Naval Research Laboratory (NRL) has integrated
commercial imagery processing technologies into a system that
can process these high data-rates in real-time. These
commercial solutions are not only less expensive, but provide
an upgrade path for future requirements.
The committee notes the partnering relationships now being
fostered between the government contractor and the NRL to
provide a CIP that is more commercially-based and capable of
processing modern digital imagery. The committee strongly
supports this relationship, and it expects the Air Force and
Navy to work more closely together to ensure that modern
digital camera systems can be fully exploited in real-time by
the CIP.
The committee supports the budget request.
Global Hawk High Altitude Endurance Unmanned Aerial Vehicle: +$25.0
million
The budget request contained $70.8 million in PE 35205F for
endurance unmanned aerial vehicles (UAV), including funding for
Global Hawk and DarkStar air vehicles.
Since the budget request was developed, the Air Force has
terminated the DarkStar aircraft, leaving Global Hawk as the
only endurance UAV program. While some residual funding may
result, termination costs for DarkStar are yet to be
determined. However, thecommittee understands the Air Force
plans to use any residual funds for Global Hawk testing and evaluation.
Recently, a Global Hawk test air vehicle crashed,
destroying with it the only integrated reconnaissance sensor
package. The committee notes the importance of resuming the
user evaluation and testing of Global Hawk, and of sustaining
the industrial base until completion of the user evaluation.
The committee recommends $95.8 million in PE 35205F, an
increase of $25.0 million for Global Hawk.
Predator Unmanned Aerial Vehicle: +$20.0 million
The budget request contained $38.0 million for three
Predator unmanned aerial vehicles (UAV) and one ground control
station (GCS).
The Predator continues to be the Department of Defense's
only operational UAV. The committee notes that the Predator has
been flying support missions in Bosnia, and now Kosovo, for
over three and one-half years, logging more than 11,000 total
flight hours. Because of its importance to theater commanders'
intelligence needs, a solid Predator production base must be
continued, attrition reserve air vehicles must be maintained
and improvements must be made to fully exploit the system's
potential. For example, the committee believes the laser
designator upgrades now being integrated into some aircraft for
immediate contingency needs should be integrated fleet-wide.
Although Predator operations are expected to be expanded to
other theaters and operational areas, the committee understands
Predator is currently not deployable worldwide because of some
host-nation communications frequency restrictions.
Consequently, the committee believes the Air Force needs to add
the tactical common data link (TCDL) to the air vehicles and
the GCS to overcome this operational limitation.
Finally, the committee notes that when using the satellite
communications link with the aircraft, the GCS can only control
a single air vehicle. This situation precludes dual aircraft
control for on-station relief. The committee believes that a
dual-channel, beyond-line-of-sight satellite communications
capability needs to be retrofitted into existing aircraft.
Therefore, the committee recommends $58.0 million, an
increase of $20.0 million, to procure two additional attrition
reserve UAVs, production versions/kits of the laser designator,
the TCDL and the dual-channel satellite communications suite.
Electro-Optical Framing Technologies: +$5.0 million
The budget request contained $5.0 million in PE 35206N for
airborne reconnaissance systems, including $2.0 million for
electro-optic (EO) framing technologies.
The committee continues to support development of the
revolutionary digital EO framing technologies with on-chip
forward motion compensation (FMC). The committee notes the Navy
F-14 Tactical Air Reconnaissance Podded System--Completely
Digital (TARPS CD) demonstration system using this technology
has recently been successfully employed at sea. Based on this
success, the committee believes there is a need for additional
TARPS CD risk-reduction pods and that the Navy should expand
this effort. Further, the committee believes that the EO
framing with on-chip FMC should be fully developed and improved
to satisfy current and future applications on aircraft such as
tactical unmanned aerial vehicles and other tactical fighter
aircraft.
Therefore the committee recommends $10.0 million in
PE35206N, an addition of $5 million, for continued development
of EO framing with on-chip FMC technologies. These efforts
shall include development of the high quantum efficiency
infrared framing chip, precision strike improvements, and step-
framing technologies.
Joint Reserve Intelligence Program: +$250,000
The budget request contained $10.1 million for operation of
the Joint Reserve Intelligence Program (JRIP).
The committee notes the superb intelligence analysis and
production support the JRIP has continued to provide the active
forces. The committee is acutely aware of the JRIP support to
producing imagery exploitation keys, the cataloging of specific
equipment and facilities for rapid identification for
targeting. This imagery key production has significant positive
impact for ongoing crisis support. However, the JRIP is not
properly funded for the numbers of man-days necessary to
continue this effort.
The committee recommends $10.3 million, an increase of
$250,000 for this purpose.
Tactical Intelligence and Related Activities
All Source Analysis System (ASAS): -$4.7 million
The budget request contained $43.7 million, an increase of
$14.9 million from the fiscal year 1999 appropriated amount, in
PE 64321A for ASAS.
The committee recognizes the importance of the ASAS
capability, but it is troubled by the development costs of this
intelligence support system, particularly when compared to the
modest costs for the other services' intelligence systems.
Therefore, the committee recommends $39.0 million in PE64321A,
a decrease of $4.7 million.
Semi-Automated Imagery Processor: +$2.5 million
The budget request contained no funding in PE 63766A for
tactical electronic surveillance systems.
The committee notes that the semi-automated imagery
processor (SAIP) is an advanced concept technology
demonstration (ACTD) designed to provide automatic target
cueing to support imagery analysts. Further, the tool provides
a limited capability for automated target recognition. While
the SAIP is not perfected, the committee notes the development
effort and results to date. The committee remains concerned
that current and future imagery collection systems are
overwhelming the limited number of imagery analysts available
to put ``eyes on target.'' Automated capabilities to reduce
imagery analyst workloads are critically needed. The committee
believes that the SAIP represents the best effort to date to
provide such radar imagery automation. However, the Department
has, again, failed to provide sufficient funding for the
transition of a needed ACTD capability to an operational
application.
The committee recommends $35.7 million in PE63766A, an
increase of $2.5 million for the transition of the SAIP effort
from an ACTD to an operational capability. The committee notes
that the SAIP is not a total solution and expects the Army to
continue efforts to refine and improve the SAIP.
Advanced Tactical Air Reconnaissance System: Fence $60.0 million
The budget request contained $60.0 million for the Advanced
Tactical Air Reconnaissance System (ATARS).
The committee is fully aware of this program's troubled
history and technical problems. The committee is not pleased
that the operational evaluation, originally scheduled for
fiscal year 1998, has been delayed once again, pushing the
production decision into fiscal year 2000. In light of its poor
performance and reliability track record, the committee cannot
support continued funding until a thorough independent test and
evaluation of the system has been completed.
The committee recommends the amount requested, but directs
that none of these funds may be obligated or expended until 30
days after the Department of Defense has provided a report to
the congressional defense and intelligence committees on the
completion of a successful formal operational evaluation of the
ATARS. Further, the committee believes that no amounts
authorized and appropriated in fiscal year 1999 for production
system procurement should be used to procure additional low
rate initial production (LRIP-3) systems before completion of
the operational evaluation.
Hyper-Spectral Analysis: +$8.0 million
The budget request contained $12.1 million in PE 65867N and
$10.1 million in PE 27247F for Navy Force and Air Force
Tactical Exploitation of National Capabilities (TENCAP).
The committee has learned of a revolutionary new spectral
exploitation technology that has been tested on a limited scale
onboard Navy intelligence collection aircraft. This technology
provides real-time, automated, hyperspectral, wide-area search
functionality. By searching for spectral anomalies, it provides
users with automated target nominations without a priori
information. This could dramatically cut imagery analyst
workloads, while greatly improving real-time targeting and
threat warning. The committee believes such a capability is
needed to exploit the vast amount of imagery data that the
intelligence community is able to provide.
Therefore, the committee recommends $16.1 million in PE
65867N and $14.1 million in PE 27247F, an increase in each of
$4.0 million respectively for the services to procure and test
multi-spectral sensors and exploitation tools. The goal is to
eventually transition this as an operational technology to the
services for advancing imagery cueing and analysis.
Beartrap Nonlinear Dynamics And Environmental Characterization: +$6.0
million
The budget request contained $17.8 million in PE 63254N for
anti-submarine warfare (ASW) system developments, including
$5.3 million for Project Beartrap.
The committee notes that that the budget request for
Beartrap supports hardware and software developments for
advanced capability acoustic and non-acoustic sensors, as well
as data collection and analysis for threat assessment and
environmental characterization. The committee understands that
basic research in nonlinear dynamic stochastic resonance
(NDSR), supported by the Office of Naval Research, has advanced
to the point that it offers explanations for many observed
physical phenomena and it offers the potential to develop
significantly improved acoustic and non-acoustic AWS sensor
systems. The committee believes that NDSR technology offers a
significant opportunity to enhance the capabilities of Beartrap
at a time when evolving ASW requirements indicate the critical
need to integrate these latest relevant technologies. Specific
areas include characterization of the ocean nonlinear dynamics
environment, application of NDSR technology in advanced
Beartrap sensors and validation of NDSR ASW performance.
The committee also notes that the Navy requires extensive
environmental data to achieve effective performance from the
extended echo ranging (EER) devices used in shallow littoral
waters. These active acoustic devices are key to naval airborne ASW
performance. The Beartrap program is well suited to collect this
environmental data.
The committee recommends $23.8 million in PE 63254N for ASW
systems development, an increase of $6 million for Project
Beartrap for the purposes outlined above.
Ocean Surveillance Information System: +$4.0 million
The budget request contained $41.6 million in PE 64231N,
including $2.1 million for the ocean surveillance information
system (OSIS).
The committee understands the need for improving analytic
software search tools, particularly as the information
populating intelligence databases continues to increase
exponentially. The committee notes that the intuitive database
search tool known as the contiguous connection model (CCM)
being incorporated into the Army's all source analysis system
(ASAS) provides a significant advance in providing such
automated search functionality, for both formatted and
unformatted data. The committee believes the CCM would
significantly improve Navy intelligence analyst effectiveness,
and that it should be incorporated into the OSIS evolutionary
development.
The committee recommends $45.6 million in this program
element, an increase of $4.0 million for this purpose.
Distributed Surveillance System: +$19.0 million
The budget request contained $14.9 million in PE 64784N for
continued development of the distributed surveillance system.
The Integrated Undersea Surveillance System (IUSS) program
includes both fixed and relocatable acoustic sensor systems to
detect and track diesel and nuclear powered submarines. The
Fixed Distributed System (FDS) is a series of permanently
installed acoustic arrays and the Advanced Deployable System
(ADS), currently under development, will comprise sensors that
can be rapidly deployed in littoral environments.
The committee understands that the incorporation of fiber
optic sensor technologies in acoustic arrays can greatly reduce
maintenance requirements for these systems. Littoral anti-
submarine warfare (ASW) operations pose complex challenges in
the evaluation and analysis of acoustic sensor data due to the
high volume of traffic and diverse environmental conditions.
The committee is concerned that the ADS program does not
adequately address the issues of automation of detection and
tracking functions and connectivity to the Global Command and
Control System (GCCS) and web-based network centric warfare
systems.
Accordingly, the committee recommends $33.9 million, an
increase of $19.0 million for the distributed surveillance
system; $8.0 million for the continued application of remote-
powered fiber optic sensor technologies for FDS acoustic
arrays, and $11.0 million for the development of improved
detection and tracking algorithms to
provide increased automation for the ADS and an interface with
the GCCS and other network centric warfare systems.
Mobile Electronic Warfare Support System: +$5.0 million
The budget request contained $5.0 million for procurement
of the Marine Corps' mobile electronic warfare support system
(MEWSS).
The committee notes that the Army and the Marine Corps were
working together to field a modern ground signals intelligence
collection capability. The committee notes that the Army
recently terminated its portion of this program, the ground
based common sensor (GBCS). This has had a direct impact on the
Marine Corps' MEWSS, increasing costs and affecting the
fielding schedule. The committee understands that the Army has
decided to mitigate this additional cost by providing GBCS
residual equipment to the Marine Corps. However, this equipment
will have to be retrofitted into the MEWSS vehicle and
modifications to the equipment will have to be made. This will
come at additional cost, which the Marine Corps could not have
anticipated.
The committee recommends $10.0 million, an addition of $5.0
million for the Marine Corps to accept and modify the GBCS
sensors systems into the MEWSS.
Space-Based Infrared System-High
The budget request contained $328.7 million in PE 64441F
for the space-based infrared system-high (SBIRS High).
The committee notes that the budget request for SBIRS High
reflects a reduction of $235.5 million when compared to the
projections in the fiscal year 1999 budget request. The Air
Force also delayed the first launch of SBIRS High from fiscal
year 2002 to fiscal year 2004. The Air Force justified this
delay partly because deployment of a National Missile Defense
(NMD) program, that SBIRS High will support, was delayed from
fiscal year 2003 to fiscal year 2005, and partly because the
Defense Satellite Program (DSP) satellites, that SBIRS High
will replace, are lasting longer than expected.
The delay will increase SBIRS High program costs by $500
million to $1 billion in the outyears. Further, although the
NMD date now proposed by the Administration is two years later
than it proposed last year, the committee understands that the
deployment date could be accelerated if the NMD test program
proceeds well. SBIRS High will also support theater missile
defenses, particularly in meeting the growing threat posed by
longer range missiles, against which the United States has only
very limited defensive capabilities. Finally, with first launch
in fiscal year 2004, the full constellation of SBIRS High would
not be available to support a 2005 NMD deployment. The
committee strongly supports the SBIRS High mission and
concludes that the restructuring and delay of this program are
unjustified.
The committee also strongly objects to the manner in which
the Air Force implemented a work slowdown in anticipation of
approval of its proposed fiscal year 2000 program reduction.The
committee was not informed of this decision until after the contractor
had been ordered to restructure the program spending rates to
accommodate the proposed schedule change. This procedure precluded any
realistic opportunity for congressional review of the Air Force
decision and preempted congressional oversight prerogatives. The
committee recognizes that restoring SBIRS High to a first launch date
of fiscal year 2002 is now impossible, and to restore the date to
fiscal year 2003 would require approximately $400 million in additional
funding in fiscal year 2000.
The committee believes that, because of the delay in the
program and the substantial cost growth that results, the
Department will have the opportunity to examine competitive
alternatives that may be available to achieve comparable or
superior capabilities at comparable or lower costs. Therefore,
of the funds authorized for SBIRS High, the committee directs
that $10.0 million may be used only for airborne and space
experiments of a sensor technology described in the classified
annex.
To sustain the SBIRS High program in the most effective
manner and assure that it is accorded a high priority in the
future, the committee recommends $168.7 million for a new SBIRS
High program element in the Ballistic Missile Defense
Organization, 64XXXC, and $160.0 million for PE 64441F. The
committee believes that an alternate management and funding
structure, in which BMDO provides management oversight, the Air
Force serves as executive agent, and both share funding
responsibility, would provide the most thorough assessments of
SBIRS High importance in the future.
Space Based Infrared System-Low
The budget request contained $151.4 million in PE 63441F
and $77.7 million in 64442F for the space based infrared
system-low (SBIRS Low).
The committee notes that the Air Force substantially
restructured the SBIRS Low program, terminating two planned
demonstration projects and delaying the first launch of SBIRS
Low from 2004 to 2006. The Air Force argues that the
cancellations were justified because much had been learned from
the effort to develop the demonstrators, that proof of
principle had already been established in earlier experiments,
and that schedule delays and cost growth in the demonstration
projects had increased program risk and cost.
The committee believes that deployment of SBIRS Low is
critical to meeting the growing long-range ballistic missile
threats, and that the delay is very damaging to the U.S. effort
to field capable systems in response to these threats in a
timely manner. The committee is also informed that the Navy
Theater Wide (NTW) missile defense system will rely on SBIRS
Low for discrimination and external cueing. The SBIRS Low delay
could seriously degrade the capabilities of the currently
planned interim NTW system known as Block I and could slow
progress toward the NTW objective system.
The committee strongly objects to the manner in which the
Air Force carried out the SBIRS Low program restructuring. The
Air Force informed the congressional defense committees the day
prior to notifying the contractors of the cancellations of the
demonstration projects, effectively precluding review of an
important decision in a program of high congressional interest.
Further, the committee believes that the Ballistic Missile
Defense Organization (BMDO) was not adequately consulted
concerning the decision.
To ensure that SBIRS Low is accorded the high priority the
committee believes is warranted by wider military requirements
and to ensure that other service and DOD equities in the
program are protected, the committee recommends $110.0 million
in a new BMDO program element, 63XXXC, $41.8 million in PE
63441F, and $77.7 million in PE 64442F for SBIRS Low. The
committee believes that an arrangement, in which BMDO provides
management oversight, the Air Force serves as executive agent,
and both share funding responsibility, provides the best chance
of success in the future.
Air Force/National Reconnaissance Office Partnership: -$2.9 million
The budget request contained $2.9 million in PE 63856F for
the Air Force/National Reconnaissance Office (NRO) partnership
program.
The Air Force/NRO partnership program funds studies and
analyses of opportunities to better integrate the activities of
the two organizations. The committee believes that the
leadership structure of the two organizations is appropriate to
foster such integration, and that each organization should be
highly motivated to leverage the investments of the other as a
means of conserving scarce resources. The committee believes
that the activities funded in this program should be part of
the regular order of business for both the NRO and the Air
Force. The committee recommends no funding in PE 63856.
Special Operations Forces Reconnaissance: +$2.1 million
The budget request contained $1.4 in PE 116405BB for
Special Operations Command (SOCOM) intelligence research and
development. No funds were requested for the special operations
tactical video system (SOTVS) digital, underwater camera.
The committee notes that a commercial camera system for the
joint SOTVS digital, still camera requirement is not available
and that the commercial market gives no sign of providing an
off-the-shelf solution.
Further, a digital imagery capability would provide near-
real-time information support to special operations forces
(SOF) and would not require a wet-film processing requirement
as do the current film-based cameras. The committee believes
this is a capability that needs to be provided to the SOF as
quickly as possible. The committee believes a government-funded
digital camera is the only potential near-term solution to this
reconnaissance requirement. The committee understands that $4.1
million is required to complete development of a camera that
meets all joint requirements.
The committee recommends $3.5 million in PE116405BB, an
increase of $2.1 million for the SOTVS digital underwater
camera. The committee recommends the Commander in Chief, SOCOM,
seek reprogramming authority to fund the remainder of the joint
requirement.
Section by Section
Title I: Intelligence activities
Section 101--authorization of appropriations
Section 101 lists those elements of the United States
Government for whose intelligence and intelligence-related
activities the Act authorizes appropriations for fiscal year
2000.
Section 102--classified schedule of authorizations
Section 102 incorporates by reference the classified
Schedule of Authorizations. That schedule sets forth the
specific amounts authorized to be appropriated for specific
intelligence and intelligence-related activities and personnel
ceilings for fiscal year 2000 for those United States
government elements listed in section 101. The details of the
Schedule are explained in the classified annex to this report.
The Schedule of Authorizations correlates to the President's
classified budget submission to Congress.
Section 103--personnel ceiling adjustments
Section 103 authorizes the Director of Central
Intelligence, with the approval of the Director of the Office
of Management and Budget (``OMB''), in fiscal year 2000, to
exceed the personnel ceilings applicable to the components of
the intelligence community under section 102 by an amount not
to exceed two percent of the total of the ceilings otherwise
applicable under section 102. The Director may exercise this
authority only when necessary to the performance of important
intelligence functions. Any exercise of this authority must be
reported to the two intelligence committees of the Congress.
The committee emphasizes that the authority conferred by
section 103 is not intended to permit the wholesale raising of
personnel strength in any intelligence component. Rather, the
section provides the Director of Central Intelligence with
flexibility to adjust personnel levels temporarily for
contingencies, and for overages caused by an imbalance between
hiring of new employees and attrition of current employees. The
committee does not expect the Director of Central Intelligence
to allow heads of intelligence components to plan to exceed
levels set in the Schedule of Authorizations, except for the
satisfaction of clearly identified hiring needs that are
consistent with the authorization of personnel strengths in
this legislation. In no case is this authority to be used to
provide for positions otherwise denied by Congress.
Section 104--community management account
Section 104 details the amount and composition of the
Community Management Account (``CMA'') of the Director of
Central Intelligence.
Subsection (a) of section 104 authorizes appropriations in
the amount of $193,572,000 for fiscal year 2000 for the
staffing and administration of various components under the
CMA. Subsection (a) also authorizes funds identified for the
Advanced Research and Development Committee to remain available
for two years.
Subsection (b) authorizes a total of 348 full-time
personnel for elements within the CMA for fiscal year 2000 and
provides that such personnel may be permanent employees of the
CMA element or detailed from other elements of the United
States Government.
Subsection (c) explicitly authorizes the classified portion
of the CMA.
Subsection (d) requires that personnel be detailed on a
reimbursable basis, with certain exceptions.
Subsection (e) authorizes $27,000,000 of the amount
authorized for the CMA under subsection (a) to be made
available for the National Drug Intelligence Center (``NDIC'')
in Johnstown, Pennsylvania. Subsection (e) requires the
Director of Central Intelligence to transfer the $27,000,000 to
the Department of Justice to be used for NDIC activities under
the authority of the Attorney General, and subject to section
103(d)(1) of the National Security Act.
Section 105--authorization of emergency supplemental appropriations for
fiscal year 1999
Section 105 specifically authorizes any intelligence and
intelligence-related activities for which emergency
supplemental appropriations are expected to be included in the
``Kosovo'' supplemental appropriations bill under consideration
by the Appropriations Committee in the House at the time of the
Intelligence Committee's consideration of the fiscal year 2000
intelligence authorization act. This provision is intended to
meet the requirements of section 504 of the National Security
Act of 1947, as amended, which mandates specific authorization
for the conduct of all intelligence and intelligence-related
activities by the United States Government. This provision
should not be read to authorize any subsequent emergency
supplemental appropriations bills for Fiscal Year 1999 that may
include funds for intelligence and intelligence-related
activities. Such subsequent bills will require individual
authorization to satisfy the requirements of section 504.
Title II: Central Intelligence Agency retirement and disability system
Section 201--authorization of appropriations
Section 201 authorizes appropriations in the amount of
$209,100,000 for fiscal year 2000 for the Central Intelligence
Agency Retirement and Disability Fund.
Title III: General provisions
Section 301--increase in employee compensation and benefits authorized
by law
Section 301 provides that appropriations authorized by this
Act for salary, pay, retirement and other benefits for federal
employees may be increased by such additional or supplemental
amounts as may be necessary for increases in such compensation
or benefits authorized by law.
Section 302--restriction on conduct of intelligence activities
Section 302 provides that the authorization of
appropriations within the Act does not constitute authority for
the conduct of any intelligence activity that is precluded by
the Constitution or other laws of the United States.
Section 303--Sense of Congress regarding intelligence community
contracting
Section 303 expresses the sense of Congress that the DCI
should continue to direct elements of the intelligence
community to award contracts in a manner that would maximize
the procurement of products produced in the United States, when
such action is compatible with the national security interests
of the United States, consistent with operational and security
concerns, and fiscally sound.
Title IV: Central Intelligence Agency
Section 401--two-year extension of CIA central services program
Section 401 extends the Central Intelligence Agency's
authority to carry out the Central Services Program first
authorized as part of the fiscal year 1998 authorization Act.
P.L. 105-107. This provision extends the termination date of
the Central Services Program to March 31, 2002.
Title V: Department of Defense intelligence activities
Section 501--protection of operational files of the National Imagery
and Mapping Agency
Section 501 provides for the protection of the operational
files of the National Imagery and Mapping Agency (NIMA) to the
same extent those files were protected under the Central
Intelligence Agency (CIA) pursuant to 50 U.S.C. 431 prior to
NIMA's creation. Furthermore, this provision grants an
exemption under the Freedom of Information Act (FOIA) from
searching, reviewing, publishing, or disclosing its operational
files. This new provision includes those NIMA files, including
imagery and imagery intelligence, previously maintained by the
National Photographic Interpretation Center (NPIC) of the
Central Intelligence Agency. This statutory language was
inadvertently omitted when the statutes creating NIMA were
enacted.
Committee Position
On April 28, 1999, in open session, a quorum being present,
the Permanent Select Committee on Intelligence, by a recorded
vote of 14 ayes to 0 noes, approved the bill, H.R. 1555, as
amended by an amendment in the nature of a substitute offered
by Chairman Goss. By that vote, the committee ordered the bill,
as amended, reported favorably to the House. On that vote, the
Members present recorded their votes as follows:
Mr. Goss (Chairman)--aye; Mr. Lewis--aye; Mr. McCollum--
aye; Mr. Castle--aye; Mr. Boehlert--aye; Mr. Bass--aye; Mr.
Gibbons--aye; Mr. LaHood--aye; Ms. Wilson--aye; Mr. Dixon--aye;
Ms. Pelosi--aye; Mr. Bishop--aye; Mr. Sisisky--aye; Mr.
Roemer--aye.
Findings and Recommendations of the Committee on Government Reform
With respect to clause 3(c)(4) of rule XIII of the House of
Representatives, the committee has not received a report from
the Committee on Government Reform and Oversight pertaining to
the subject of this bill.
Oversight Findings
With respect to clause 3(c)(1) of rule XIII of the Rules of
the House of Representatives, the committee held nine full-
committee hearings, as well as six full-committee briefings, on
the classified budgetary issues raised by H.R. 1555. Testimony
was taken from the Director of Central Intelligence, the Acting
Director of the National Security Agency, the Director of the
Defense Intelligence Agency, the Deputy Director of Central
Intelligence, the Deputy Directors for Operations and
Intelligence, numerous program managers, and various other
knowledgeable witnesses on the activities and plans of the
intelligence community covered by the provisions and
authorizations, both classified and unclassified, of the
Intelligence Authorization Act for Fiscal Year 2000. The bill,
as reported by the committee, reflects conclusions reached by
the committee in light of this oversight activity.
Fiscal Year Cost Projections
The committee has attempted, pursuant to clause 3(d)(2) of
rule XIII of the Rules of the House of Representatives, to
ascertain the outlays that will occur in fiscal year 2000 and
the five years following if the amounts authorized are
appropriated. These estimates are contained in the classified
annex and are in accordance with those of the executive branch.
Congressional Budget Office Estimates
In compliance with clause 3(c)(2) and (3) of rule XIII of
the Rules of the House of Representatives, and pursuant to
sections 308 and 402 of the Congressional Budget Act of 1974,
the committee submits the following estimate prepared by the
Congressional Budget Office:
House of Representatives,
Permanent Select Committee on Intelligence,
Washington, DC, May 4, 1999.
Mr. Dan L. Crippen,
Director, Congressional Budget Office,
Ford House Office Building, Washington, DC.
Dear Mr. Crippen: In compliance with the Rules of the House
of Representatives, I am writing to request a cost estimate of
H.R. 1555, the ``Intelligence Authorization Act for Fiscal year
2000,'' pursuant to sections 308 and 403 of the Congressional
Budget Act of 1974. I have attached a copy of the bill as
approved by the House Permanent Select Committee on
Intelligence on April 28, 1999.
As I hope to bring this legislation to the House floor in
the very near term, I would very much appreciate an expedited
response to this request by the CBO's staff. Should you have
any questions related to this request, please contact Patrick
B. Murray, the Committee's Chief Counsel. Thank you in advance
for your assistance with this request.
Sincerely,
Porter J. Goss, Chairman.
------
U.S. Congress,
Congressional Budget Office,
Washington, DC, May 5, 1999.
Hon. Porter J. Goss,
Chairman, Permanent Select Committee on Intelligence,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 1555, the
Intelligence Authorization Act for Fiscal Year 2000.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Dawn Sauter.
Sincerely,
Barry B. Anderson
(For Dan L. Crippen, Director).
Enclosure.
H.R. 1555--Intelligence Authorization Act for Fiscal Year 2000
Summary: H.R. 1555 would authorize appropriations for
fiscal year 2000 for intelligence activities of the United
States government, the Community Management Account, and the
Central Intelligence Agency Retirement and Disability System
(CIARDS). The bill would also authorize such sums as may be
necessary to fund an emergency supplemental appropriation for
fiscal year 1999.
This estimate addresses only the unclassified portion of
the bill. On that limited basis, CBO estimates that enacting
H.R. 1555 would result in additional spending of $194 million
over the 2000-2004 period, assuming appropriation of the
authorized amounts. CBO has no basis for determining the cost
of an emergency supplemental appropriation for fiscal year
1999. The unclassified portion of the bill would not affect
direct spending or receipts; thus, pay-as-you-go procedures
would apply.
The Unfunded Mandates Reform Act (UMRA) excludes from
application of that act legislative provisions that are
necessary for the national security. CBO has determined that
the unclassified provisions of this bill either fit within that
exclusion of do not contain intergovernmental or private-sector
mandates as defined by UMRA.
Estimated cost to the Federal Government: The estimated
budgetary impact of the unclassified portions of H.R. 1555 is
shown in the following table. CBO cannot obtain the necessary
information to estimate the costs for the entire bill because
parts are classified at a level above clearances held by CBO
employees. For the purposes of this estimate, CBO assumes that
H.R. 1555 will be enacted by October 1, 1999, and that the
authorized amounts will be appropriated for fiscal year 2000.
----------------------------------------------------------------------------------------------------------------
By fiscal years, in millions of dollars--
-----------------------------------------------------
1999 2000 2001 2002 2003 2004
----------------------------------------------------------------------------------------------------------------
SPENDING SUBJECT TO APPROPRIATION
Spending Under Current Law for Intelligence Community
Management:
Budget Authority...................................... 102 0 0 0 0 0
Estimated Outlays..................................... 104 39 9 2 0 0
Proposed Changes:
Authorization Level................................... 0 194 0 0 0 0
Estimated Outlays..................................... 0 120 58 12 4 0
Spendign Under H.R. 1555 for Intelligence Community
Management:
Authorization Level \1\............................... 102 194 0 0 0 0
Estimated Outlays..................................... 104 159 67 14 4 0
----------------------------------------------------------------------------------------------------------------
\1\ The 1999 level is the amount appropriated for that year.
Outlays are estimated according to historical spending
patterns. The costs of this legislation fall within budget
function 050 (national defense).
The bill would authorize appropriations of $194 million for
the Intelligence Community Management Account, which funds the
coordination of programs, budget oversight, and management of
the intelligence agencies. In addition, the bill would
authorize $209 million for CIARDS to cover retirement costs
attributable to military service and various unfunded
liabilities. The payment to CIARDS is considered mandatory, and
the authorization under this bill would be the same as assumed
in the CBO baseline.
Section 501 of the bill would allow the Director of the
National Imagery and Mapping Agency (NIMA), in coordination
with the Director of the Central Intelligence Agency (CIA), to
exempt certain documents from provisions of the Freedom of
Information Act (FOIA). The bill would allow exemptions for
files concerning the activities of NIMA that, prior to its
creation in 1996, were performed by the National Photographic
Interpretation Center (NPIC) within the CIA and that document
the means by which foreign intelligence or counterintelligence
is collected through scientific and technical systems. H.R.
1555 would also require a decennial review under rules and
procedures similar to those governing operational files of the
CIA.
CBO believes that section could result in discretionary
savings from reduced administrative and legal costs that NIMA
might otherwise incur to respond to FOIA requests. These
potential savings could be partially offset by any future legal
costs arising from the limited judicial review that H.R. 1555
would permit. (Judicial review would allow legal challenges of
NIMA's decisions to exempt certain files.) H.R. 1555 would also
require NIMA to review the exempt status of operational files
every 10 years, but CBO believes that the resulting cost would
be small, considering the classification reviews that occur
under current law. CBO cannot estimate the budgetary impact of
section 501 because we have no information about the number of
files that this section would affect or the unit cost for NIMA
to review them.
Pay-as-you-go considerations: None.
Intergovernmental and private-sector impact: The Unfunded
Mandates Reform Act (UMRA) excludes from application of the act
legislative provisions that are necessary for the national
security. CBO has determined that the unclassified provisions
of this bill either fit within the exclusion or do not contain
intergovernmental or private-sector mandates as defined by
UMRA.
Estimate prepared by: Federal Costs: Dawn Sauter. Impact on
State, Local, and Tribal Governments: Teri Gullo. Impact on the
Private Sector: Eric Labs.
Estimate approved by: Robert A. Sunshine, Deputy Assistant
Director for Budget Analysis.
Committee Cost Estimates
The committee agrees with the estimate of the Congressional
Budget Office.
Specific Constitutional Authority for Congressional Enactment of This
Legislation
The intelligence and intelligence-related activities of the
United States government are carried out to support the
national security interests of the United States, to support
and assist the armed forces of the United States, and to
support the President in the execution of the foreign policy of
the United States. Article I, section 8, of the Constitution of
the United States provides, in pertinent part, that ``Congress
shall have power * * * to pay the debts and provide for the
common defence and general welfare of the United States; * * *
``; ``to raise and support Armies, * * * ``; ``to provide and
maintain a Navy; * * * `` and ``to make all laws which shall be
necessary and proper for carrying into execution * * * all
other powers vested by this Constitution in the Government of
the United States, or in any Department or Officer thereof.''
Therefore, pursuant to such authority, Congress is empowered to
enact this legislation.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italic, existing law in which no change is
proposed is shown in roman):
SECTION 21 OF THE CENTRAL INTELLIGENCE AGENCY ACT OF 1949
central services program
Sec. 21. (a) * * *
* * * * * * *
(h) Termination.--(1) The authority of the Director to carry
out the program under this section shall terminate on March 31,
[2000] 2002.
----------
CHAPTER 22 OF TITLE 10, UNITED STATES CODE
CHAPTER 22--NATIONAL IMAGERY AND MAPPING AGENCY
* * * * * * *
SUBCHAPTER I--MISSIONS AND AUTHORITY
Sec.
441. Establishment.
* * * * * * *
446. Protection of operational files.
* * * * * * *
Sec. 446. Protection of operational files
(a) Exemption of Certain Operational Files From Search,
Review, Publication, or Disclosure.--(1) The Director of the
National Imagery and Mapping Agency, with the coordination of
the Director of Central Intelligence, may exempt operational
files of the National Imagery and Mapping Agency from the
provisions of section 552 of title 5 (Freedom of Information
Act), which require publication, disclosure, search, or review
in connection therewith.
(2)(A) Subject to subparagraph (B), for the purposes of this
section, the term ``operational files'' means files of the
National Imagery and Mapping Agency (hereinafter in this
section referred to as `NIMA') concerning the activities of
NIMA that before the establishment of NIMA were performed by
the National Photographic Interpretation Center of the Central
Intelligence Agency (NPIC), that document the means by which
foreign intelligence or counterintelligence is collected
through scientific and technical systems.
(B) Files which are the sole repository of disseminated
intelligence are not operational files.
(3) Notwithstanding paragraph (1), exempted operational files
shall continue to be subject to search and review for
information concerning--
(A) United States citizens or aliens lawfully
admitted for permanent residence who have requested
information on themselves pursuant to the provisions of
section 552 of title 5, or section 552a of title 5
(Privacy Act of 1974);
(B) any special activity the existence of which is
not exempt from disclosure under the provisions of
section 552 of title 5; or
(C) the specific subject matter of an investigation
by any of the following for any impropriety, or
violation of law, Executive order, or Presidential
directive, in the conduct of an intelligence activity:
(i) The Permanent Select Committee on
Intelligence of the House of Representatives.
(ii) The Select Committee on Intelligence of
the Senate.
(iii) The Intelligence Oversight Board.
(iv) The Department of Justice.
(v) The Office of General Counsel of NIMA.
(vi) The Office of the Director of NIMA.
(4)(A) Files that are not exempted under paragraph (1) which
contain information derived or disseminated from exempted
operational files shall be subject to search and review.
(B) The inclusion of information from exempted operational
files in files that are not exempted under paragraph (1) shall
not affect the exemption under paragraph (1) of the originating
operational files from search, review publication, or
disclosure.
(C) Records from exempted operational files which have been
disseminated to and referenced in files that are not exempted
under paragraph (1) and which have been returned to exempted
operational files for sole retention shall be subject to search
and review.
(5) The provisions of paragraph (1) may not be superseded
except by a provision of law which is enacted after the date of
enactment of this section, and which specifically cites and
repeals or modifies its provisions.
(6)(A) Except as provided in subparagraph (B), whenever any
person who has requested agency records under section 552 of
title 5, alleges that NIMA has withheld records improperly
because of failure to comply with any provision of this
section, judicial review shall be available under the terms set
forth in section 552(a)(4)(B) of title 5.
(B) Judicial review shall not be available in the manner
provided for under subparagraph (A) as follows:
(i) In any case in which information specifically
authorized under criteria established by an Executive
Order to be kept secret in the interests of national
defense or foreign relations is filed with, or produced
for, the court by NIMA, such information shall be
examined ex parte, in camera by the court.
(ii) The court shall, to the fullest extent
practicable, determine the issues of fact based on
sworn written submissions of the parties.
(iii) When a complainant alleges that requested
records are improperly withheld because of improper
placement solely in exempted operational files, the
complainant shall support suchallegation with a sworn
written submission based upon personal knowledge or otherwise
admissible evidence.
(iv)(I) When a complainant alleges that requested
records were improperly withheld because of improper
exemption of operational files, NIMA shall meet its
burden under section 552(a)(4)(B) of title 5, by
demonstrating to the court by sworn written submission
that exempted operational files likely to contain
responsible records currently perform the functions set
forth in paragraph (2).
(II) The court may not order NIMA to review the
content of any exempted operational file or files in
order to make the demonstration required under
subclause (I), unless the complainant disputes NIMA's
showing with a sworn written submission based on
personal knowledge or otherwise admissible evidence.
(v) In proceedings under clauses (iii) and (iv), the
parties may not obtain discovery pursuant to rules 26
through 36 of the Federal Rules of Civil Procedure,
except that requests for admissions may be made
pursuant to rules 26 and 36.
(vi) If the court finds under this paragraph that
NIMA has improperly withheld requested records because
of failure to comply with any provision of this
subsection, the court shall order NIMA to search and
review the appropriate exempted operational file or
files for the requested records and make such records,
or portions thereof, available in accordance with the
provisions of section 552 of title 5, and such order
shall be the exclusive remedy for failure to comply
with this subsection.
(vii) If at any time following the filing of a
complaint pursuant to this paragraph NIMA agrees to
search the appropriate exempted operational file or
files for the requested records, the court shall
dismiss the claim based upon such complaint.
(viii) Any information filed with, or produced for
the court pursuant to clauses (i) and (iv) shall be
coordinated with the Director of Central Intelligence
prior to submission to the court.
(b) Decennial Review of Exempted Operational Files.--(1) Not
less than once every ten years, the Director of the National
Imagery and Mapping Agency and the Director of Central
Intelligence shall review the exemptions in force under
subsection (a)(1) to determine whether such exemptions may be
removed from the category of exempted files or any portion
thereof. The Director of Central Intelligence must approve any
determination to remove such exemptions.
(2) The review required by paragraph (1) shall include
consideration of the historical value or other public interest
in the subject matter of the particular category of files or
portions thereof and the potential for declassifying a
significant part of the information contained therein.
(3) A complainant that alleges that NIMA has improperly
withheld records because of failure to comply with this
subsection may seek judicial review in the district court of
the United States of the district in which any of the parties
reside, or in the District of Columbia. In such a proceeding,
the court's review shall be limited to determining the
following:
(A) Whether NIMA has conducted the review required by
paragraph (1) before the expiration of the ten-year
period beginning on the date of the enactment of this
section or before the expiration of the ten-year period
beginning on the date of the most recent review.
(B) Whether NIMA, in fact, considered the criteria
set forth in paragraph (2) in conducting the required
review.
* * * * * * *
ADDITIONAL VIEWS OF CHAIRMAN PORTER J. GOSS
Recently, and perhaps for the first time in the committee's
history, an Intelligence Community element of the United States
Government asserted a claim of attorney-client privilege as a
basis for withholding documents from the committee's review.
Similarly, various agencies within the Intelligence Community
have asserted, with disturbing frequency, a ``deliberative
process'' or ``pre-decisional'' argument as a basis for
attempting to keep requested documents from the committee's
scrutiny. These claims are unpersuasive and dubious.
As part of its regular oversight responsibilities and
preparatory to the committee's legislative action on this bill,
the committee was questioning the National Security Agency's
(NSA) application of current operational guidelines in light of
the enormous technological advances that have been made in the
past several years. The committee was seeking to ensure that
the NSA was carrying out its signals intelligence mission in
consonance with the law, relevant executive orders, guidelines,
and policy directives. At bottom, the committee sought to
assure itself that the NSA General Counsel's Office was
interpreting NSA's legal authorities correctly and that NSA was
not being arbitrary and capricious in its execution of its
mission.\1\
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\1\ In the 1970s it was learned that the NSA, as well as other
elements of the United States intelligence community, engaged in
serious abuses of the privacy interests of U.S. persons. The
congressional hearings on these and other matters led directly to the
establishment of the Senate Select committee on Intelligence; see S.
Res. 400, 94th Congress; and the House Permanent Select Committee on
Intelligence (HPSCI); see H. Res. 658, 95th Congress. Additionally, as
a result of those inquiries, executive orders were issued and
guidelines and policy statements were promulgated defining the mission
of the NSA and its legal obligations and responsibilities pursuant to
the Constitution and other laws of the United States. See Legislative
Oversight of Intelligence Activities: The U.S. Experience, Senate
Select Committee on Intelligence, 103rd Cong., 2d Sess., at 2-6 (Comm.
Print)(October 1994).
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If the NSA General Counsel provided too narrow an
interpretation of the agency's authorities, it could hamper the
collection of significant national security and intelligence
information. If, on the other hand, in its effort to provide
timely intelligence to the nation's policy makers, the NSA
General Counsel construed the Agency's authorities too
permissively, then the privacy interests of the citizens of the
United States could be at risk. To that end, the committee
asked the NSA General Counsel to provide the committee with
legal memoranda, opinions rendered, and other documents in the
General Counsel's Office that established that the advice it
was providing to the NSA's technicians, operators, and
management was effective in helping the NSA achieve its mission
goals and objectives.
The committee's oral request for some of these documents
was met by the NSA General Counsel's claim of a ``government
attorney-client privilege.'' The claim was made on behalf of
the Director of the NSA, and the NSA, corporately. Shortly
thereafter, the committee was again advised by a representative
of the NSA--at a budget hearing concerning the NSA's fiscal
year 2000 budget request--that the agency was working on the
document request, but that some documents would not be made
available because of the operation of the attorney-client
privilege.
During additional conversations with employees of the NSA
General Counsel's Office, the Committee reminded the NSA
lawyers of the agency's statutory obligations under section 502
of the National Security Act of 1947, as amended. That statute
provides, in pertinent part, that the heads of all Intelligence
Community elements are obligated to furnish ``any information
or material concerning intelligence activities * * * which is
requested by either of the intelligence committees in order to
carry out its authorization responsibilities.'' 50 USC
Sec. 413a(2). These admonitions to the NSA about its
responsibilities under the law were met by the argument that
``common law privileges,'' i.e., the attorney-client privilege,
survive even mandatory and unambiguous statutory language in
the absence of express language to the contrary.
The NSA General Counsel's Office contended, therefore, that
its legal opinions, decisional memoranda, and policy guidance,
all of which govern the operations and mechanisms of that
federal agency, are free from scrutiny by Congress. This would
result in the envelopment of the executive in a cloak of
secrecy that would insulate the executive branch from effective
oversight. It would also undermine the intent of the 94th and
95th Congresses to establish stringent congressional oversight
of the Intelligence Community. This outcome would seriously
hobble the legislative oversight process contemplated by the
Constitution.
Congress has broad constitutional investigative powers. The
Constitution provides that ``Each House may determine the Rules
of its Proceedings.'' U.S. Const., art. I, Sec. 5, cl.2. Each
chamber delegates the authority to rule on objections to the
production of documents, such as claims of attorney-client
privilege, to its various committees. The rules of judicial
procedure are not applicable to congressional inquiries. United
States v. Fort, 443 F.2d 670, 679-80 (D.C. Cir. 1970). There is
no law that forbids a congressional committee from exercising
its discretion to reject claims of attorney-client privilege.
Long standing precedents grant legislative bodies prerogatives
and a level of discretion on such matters not commonly found in
adjudicatory bodies.
At common law, for instance, English courts were bound by
an assertion of attorney-client privilege; Parliament was not.
See Proceedings Against Ralph Bernstein and Joseph Bernstein
(``Contempt Report''), H.R. Rep. No. 462, 99th Cong., 2d Sess.
at 12-13 (1986)(contempt proceedings against Ferdinand Marcos'
lawyers for refusal to disclose to House subcommittee any legal
communications had with their client). American commentators
have long accepted the English common law custom as the
practice established and followed in the Congress and other
legislative bodies of the United States. See L. Cushing,
Elements of the Law and Practice of the United States of
America, 390 (1856 ed., reprinted 1971)(''A witness cannot
excuse himself from answering * * * because the matter was a
privileged communication to him, as where an attorney is called
upon to disclose the secrets of his client * * *'').
In fact, Congress has, from time to time, set aside
assertions by private lawyers and private witnesses that their
legal communications should be shielded from disclosure in a
Congressional hearing based on the attorney-client privilege.
See Contempt Report at 13; Attorney-Client Privilege: Memoranda
Opinions of American Law Division, Library of Congress:
Hearings before Subcomm. on Oversight and Investigations of the
House Comm. onEnergy and Commerce (``Attorney-Client Privilege
Memorandum Opinions''), 98th Cong., 1st Sess. (Committee Print)(1983);
Health Care Fraud/Medicare Secondary Payer Program: Hearing Before the
Permanent Subcomm. on Investigations of the Senate Comm. On
Governmental Affairs (``Health Care Fraud Hearings''), 101st Cong., 2d
Sess., at 1-11 (1990), aff'd sub nom., In the Matter of Provident Life
and Accident Insurance Co., CIV-1-90-219 (E.D. Tenn. June 13, 1990);
Attorney-Client Privilege and the Right of Congressional Access to
Documents for Oversight Purposes in the Case of the Supervision of the
Telephone Loan Program by the U.S. Department of Agriculture: Subcomm.
on Conservation, Credit, and Rural Development of the House Committee
on Agriculture (``Congressional Access Report''), 102d Cong., 1st
Sess., (Committee Print)(1991).
Furthermore, there is no clear principle in our
jurisprudence that a ``government attorney-client privilege''
has as broad a scope as its non-governmental counterpart. In
fact, the opinion rendered by the U.S. Court of Appeals for the
8th Circuit established the converse principle. See In re Grand
Jury Subpoena Duces Tecum, 112 F.3d 910 (8th Cir. 1997), cert.
denied sub nom. Office of the President v. Office of the
Independent Counsel, 117 S. Ct. 2482 (1997). See also In re
Bruce R. Lindsey (Grand Jury Testimony), 148 F.3d 1100 (D.C.
Cir. 1998). Moreover, memoranda and other documents that form
the basis of working law within an agency must be made
available to Congress when requested. See Afshar v. Department
of State, 702 F.2d 1125, 1139, 1141 (D.C. Cir. 1983); Schlefer
v. United States, 702 F.2d 277 (D.C. Cir. 1983); Briston v.
Department of State, 636 F.2d 600, 605 (D.C. Cir. 1980);
Bristol-Myers Co. v. Federal Trade Commission; 598 F.2d 18, 24
(D.C. Cir. 1978); Jordan v. Department of Justice, 591 F.2d
753, 774 (D.C. Cir. 1978) (en banc).
The documents for which the claim was asserted are
presumably key interpretive memoranda and opinions utilized by
agency officers to carry out their governmental duties in
conformity with the law. The committee's constitutional and
statutory authority to conduct oversight of the Intelligence
Community provides a compelling rationale for the rejection of
any claim that the government attorney-client privilege
protects any documents within the possession of an intelligence
community entity from disclosure to this committee. See U.S.
Const., art I, Sec. 5, cl. 2; 50 U.S.C. Sec. 413a(2). The fact
that the privilege was asserted by government lawyers, on
behalf of other government officials, vitiates the availability
of the asserted privilege.
The efforts of NSA, described above, and any other similar
effort by Intelligence Community elements, to shield its own
interpretations of their agency's legal obligations and
decisional memoranda from congressional review must be
rejected. Former Attorney General Cushing once aptly described
the realities of our system of governance. He stated:
[T]he relation of the departments to Congress is one
of the great elements of responsibility and legality in
their own action. They are created by law; most of
their duties are prescribed by law; Congress may at all
times call on them for information or explanations in
matters of official duty; and it may, if it sees fit,
interpose by legislation concerning them, when required
by the interests of the Government.--``Office and
Duties of Attorney General,'' 6 Opinion of the Attorney
General 326, 334 (1854)(emphasis added).
This is a concise statement of our governmental scheme. The
executive interprets and carries out the laws enacted by
Congress. Therefore, to the extent that an agency's documents
serve as interpretive guidance, or as research tools for agency
personnel, such documents constitute a body of working law
within that agency. See Taxation With Representation v.
Internal Revenue Service, 646 F.2d 666, 682 (D.C. Cir. 1981).
As such, they cannot be withheld from the committee. See
Afshar, 702 F.2d at 1139, 1141; Schlefer, 702 F.2d 277;
Briston, 636 F.2d at 605; Bristol-Myers Co., 598 F.2d at 24;
Jordan, 591 F.2d at 774. The committee ought, then, have access
to these legal interpretations to ensure proper execution of
the laws by the agencies within their legislative jurisdiction.
Additionally, hornbook law makes it plain that attorney-
client privilege cannot work to preclude examination of legal
opinions or files within a corporate entity by its overseers.
In the context of private corporations, the board of directors
is entitled to review all legal notes, files, opinions, and
memoranda produced as a result of legal discussions between the
chief executive officers and the corporation's lawyers. In our
system of government, by analogy, the legislative branch can be
viewed as a board of directors with oversight authority of the
executive, which is responsible for its actions to the board.
Despite the separation of executive and legislative powers
under the Constitution, the two political branches are without
doubt integral parts of the same corporate entity: the federal
government of the United States of America. See The Attorney
General's Refusal To Provide Congressional Access to
``Privileged'' Inslaw Documents: Hearing Before the Subcomm. on
Economic and Commercial Law of the House Comm. on the Judiciary
(``Inslaw Hearings''), 101st Cong. 2d Sess., at 103-04
(1990)(citing written testimony of General Counsel to the Clerk
of the House).
The lawyers within the Office of the NSA General Counsel,
indeed, the General Counsel himself, are paid their wages and
expenses from the public fisc. These funds are collected from
the people of the United States and authorized and appropriated
by the Congress for the conduct of government business in the
public interest. It is elementary, therefore, that legal advice
and counsel provided by federal government attorneys to federal
government officers are subject to oversight and scrutiny by
the Congress. See Contempt Report, supra; Attorney-Client
Privilege: Memorandum Opinion, supra; Health Care Fraud
Hearings, supra; Inslaw Hearings, supra; Congressional Access
Report, supra.
Underlying this legal foundation is sound public policy,
especially in the context of Intelligence Community oversight.
Congress clearly has manifested its intent to provide for open
government. When concerning itself with matters of national
security and the protection of sources and methods, however,
Congress has acknowledged a need for secrecy and the protection
of sensitive information from public disclosure in order to
keep the information from our nation's enemies. Accordingly,
the intelligence committees have been given a statutory
obligation and a fiduciary duty to conduct oversight of the
United States Government elements that must necessarily and
understandably carry out their official duties in secret. This
acknowledgment compels the committee to exercise its discretion
and reject completely the notion that agovernment attorney-
client privilege can allow an Intelligence Community element to
withhold information requested by the committee.
Similarly, any effort by Intelligence Community elements to
advance a so-called ``pre-decisional'' or ``deliberative
process'' privilege as a basis for withholding requested
information from congressional oversight ought to be rejected.
Any assertion that a document will not be provided to the
committee because it may be an ``internal'' agency document, or
otherwise ``uncoordinated'' is unacceptable. When an agency
offers these explanations for its refusal to produce documents
requested by Congress, it is improperly putting Congress in the
category of a ``citizen requester'' under the Freedom of
Information Act (FOIA) and trying to extend Exemption 5 of that
Act to Congress. See 5 U.S.C. Sec. 552.
Exemption 5 of FOIA permits withholding of information from
requesters on the basis that the documents do not indicate a
final disposition. Exemption 5 allows withholding from
requesters if documents are preliminarily and deliberative in
nature. It also permits withholding from requests under the Act
if such documents would disclose privileged communications,
such as between an attorney and his client. In the FOIA,
itself, however, Congress specifically provided that Exemption
5 ``is not authority to withhold information from Congress.'' 5
U.S.C. Sec. 552(d). The case of Murphy v. Department of the
Army, 612 F.2d 1151 (D.C. Cir. 1979), is illustrative of this
point.
In Murphy, the court permitted the government department to
withhold a memorandum produced by the department's General
Counsel's Office from a citizen FOIA requester as pre-
decisional and also likely covered by the attorney-client
privilege. Despite the fact that the memorandum at issue in the
Murphy case was exempt under the FOIA, the document was made
available to Congressman Carl D. Perkins. The plaintiff cited
the disclosure of the document to the Congressman as proof that
the exemption should not apply in his case. The court rejected
this argument, however, noting that the FOIA exemptions
provided no basis for withholding information from Congress
because of:
* * * the obvious purpose of the Congress to carve
out for itself a special right of access to privileged
information not shared by others * * *. Congress,
whether as a body, through committees, or otherwise,
must have the widest possible access to executive
branch information, if it is to perform its manifold
responsibilities effectively. If one consequence of the
facilitation of such access is that some information
will be disclosed to congressional authorities but not
to private persons, that is but an incidental
consequence of the need for informed and effective
lawmakers.--Id. at 1155-56, 1158.
Congressional authority to investigate is concomitant with
its authority to legislate. It is necessary, then, to have
unfettered access to executive branch information in order to
be able to make sound legislative judgments. It is exactly the
``uncoordinated,'' ``deliberative,'' ``internal,'' and ``pre-
decisional'' documents of an agency that Congress needs in most
cases. These documents can provide unique insights into the
full spectrum of thought on any given issue pending before an
agency and Congress. Without access to such documents, Congress
would be left only with the ``spin'' the executive branch
agency opted to provide to the legislative branch. This result,
without question, would only serve to undermine the legitimate
authority of Congress to conduct independent oversight.
Therefore, I would expect the committee to reject all efforts
to extend the FOIA Exemption 5 to congressional requests for
information.
Porter J. Goss.
