Report text available as:

(PDF provides a complete and accurate display of this text.) Tip?


                                                       Calendar No. 475
112th Congress                                                   Report
                                 SENATE
 2d Session                                                     112-192

======================================================================



 
          INTELLIGENCE AUTHORIZATION ACT FOR FISCAL YEAR 2013

                                _______
                                

                 July 30, 2012.--Ordered to be printed

                                _______
                                

      Mrs. Feinstein, from the Select Committee on Intelligence, 
                        submitted the following

                              R E P O R T

                             together with

                     ADDITIONAL AND MINORITY VIEWS

                         [To accompany S. 3454]

    The Select Committee on Intelligence, having considered an 
original bill (S. 3454) to authorize appropriations for Fiscal 
Year 2013 for intelligence and intelligence-related activities 
of the United States Government and the Office of the Director 
of National Intelligence, the Central Intelligence Agency 
Retirement and Disability System, and for other purposes, 
reports favorably thereon and recommends that the bill do pass.

                Classified Annex to the Committee Report

    On February 13, 2012, acting pursuant to Section 364 of the 
Intelligence Authorization Act for Fiscal Year 2010 (Public Law 
111-259), the Director of National Intelligence (DNI) publicly 
disclosed that the President's aggregate request for the 
National Intelligence Program (NIP) for Fiscal Year 2013 is 
$52.6 billion. Other than for limited unclassified 
appropriations, primarily the Intelligence Community Management 
Account, the classified nature of United States intelligence 
activities precludes any further disclosure, including by the 
Committee, of the details of its budgetary recommendations. 
Accordingly, the Committee has prepared a classified annex to 
this report that contains a classified Schedule of 
Authorizations. The classified Schedule of Authorizations is 
incorporated by reference in the Act and has the legal status 
of public law. The classified annex is made available to the 
Committees of Appropriations of the Senate and the House of 
Representatives and to the President. It is also available for 
review by any Member of the Senate subject to the provisions of 
Senate Resolution 400 of the 94th Congress (1976).

              Section-by-Section Analysis and Explanation

    The following is a section-by-section analysis and 
explanation of the Intelligence Authorization Act for Fiscal 
Year 2013 that is being reported by the Committee.

              Title I--Budget and Personnel Authorizations


Section 101. Authorization of appropriations

    Section 101 lists the United States Government departments, 
agencies, and other elements for which the Act authorizes 
appropriations for intelligence and intelligence-related 
activities for Fiscal Year 2013.

Section 102. Classified Schedule of Authorizations

    Section 102 provides that the details of the amounts 
authorized to be appropriated for intelligence and 
intelligence-related activities and the applicable personnel 
levels by program (expressed as full-time equivalent positions) 
for Fiscal Year 2013 are contained in the classified Schedule 
of Authorizations and that the classified Schedule of 
Authorizations shall be made available to the Committees on 
Appropriations of the Senate and House of Representatives and 
to the President.

Section 103. Personnel ceiling adjustments

    Section 103 is intended to provide additional flexibility 
to the DNI in managing the civilian personnel of the 
Intelligence Community. Section 103(a) provides that the DNI 
may authorize employment of civilian personnel (expressed as 
full-time equivalent positions) in Fiscal Year 2013 in excess 
of the number of authorized full-time equivalent positions by 
an amount not exceeding 3 percent of the total limit applicable 
to each IC element under Section 102. The DNI may do so only if 
necessary to the performance of important intelligence 
functions.
    Section 103(b) requires the DNI to establish guidelines 
that would ensure a uniform and accurate method of counting 
certain personnel under a system of personnel levels expressed 
as full-time equivalents. The DNI has issued such a policy. 
Subsection (b) confirms in statute the obligation of the DNI to 
establish these guidelines.
    The DNI must report the decision to allow an IC element to 
exceed the personnel ceiling in advance to the congressional 
intelligence committees.

Section 104. Intelligence Community Management Account

    Section 104 authorizes appropriations for the Intelligence 
Community Management Account (ICMA) of the DNI and sets the 
authorized full-time equivalent personnel levels for the 
elements within the ICMA for Fiscal Year 2013.
    Subsection (a) authorizes appropriations of $542,346,000 
for Fiscal Year 2013 for the activities of the ICMA. Subsection 
(b) authorizes 827 full-time equivalent personnel for elements 
within the ICMA for Fiscal Year 2013 and provides that such 
personnel may be permanent employees of the Office of the 
Director of National Intelligence (ODNI) or detailed from other 
elements of the United States Government.
    Subsection (c) authorizes additional appropriations and 
full-time equivalent personnel for the classified Community 
Management Account as specified in the classified Schedule of 
Authorizations and permits the funding for advanced research 
and development to remain available through September 30, 2014.

 Title II--Central Intelligence Agency Retirement and Disability System


Section 201. Authorization of appropriations

    Section 201 authorizes appropriations in the amount of 
$514,000,000 for Fiscal Year 2013 for the Central Intelligence 
Agency (CIA) Retirement and Disability Fund.

           Title III--General Intelligence Community Matters


Section 301. Restriction on conduct of intelligence activities

    Section 301 provides that the authorization of 
appropriations by the Act shall not be deemed to constitute 
authority for the conduct of any intelligence activity that is 
not otherwise authorized by the Constitution or laws of the 
United States.

Section 302. Increase in employee compensation and benefits authorized 
        by law

    Section 302 provides that funds authorized to be 
appropriated 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 compensation or benefits authorized by law.

Section 303. Non-reimbursable details

    Section 303 amends Section 113A of the National Security 
Act of 1947 (50 U.S.C. 404h-1) to increase the length of time 
an officer or employee of the federal government can be 
detailed to the staff of an element of the Intelligence 
Community funded through the NIP from two years to three. In 
addition, Section 303 clarifies that a non-reimbursable detail 
made under Section 113A shall not be considered an augmentation 
of the appropriations of the receiving element of the 
Intelligence Community.
    The DNI requested that an extension of the length of 
service from two years to three years be made for members of 
the Armed Forces detailed to an element of Intelligence 
Community. This request was intended to align Section 113A with 
requirements for joint duty assignments among the military. 
Section 664(a) of Title 10 provides that joint duty assignments 
for military officers, other than general and flag officers, 
shall be no less than three years. The Committee determined 
that the flexibility of a three-year length of service should 
be available for civilian employees as well as military 
officers.

Section 304. Software licensing

    Section 304 requires the chief information officer for an 
element of the Intelligence Community to conduct an inventory 
of software licenses held by such element, including those 
utilized and unutilized, by the element. This inventory is to 
be conducted in consultation with the Chief Information Officer 
of the Intelligence Community (CIO) and completed within 120 
days of enactment. Not later than 180 days after enactment, the 
CIO shall provide the congressional intelligence committees 
with a copy of the reports along with any comments the CIO 
wishes to provide. The CIO shall transmit any portion of a 
report involving a component of a department of the U.S. 
government to the congressional committees with jurisdiction 
over such department simultaneously with submission of such 
report to the congressional intelligence committees.

Section 305. Improper Payments Elimination and Recovery Act of 2010 
        compliance

    Section 305 requires the DNI and the directors of the CIA, 
the Defense Intelligence Agency (DIA), the National Geospatial-
Intelligence Agency (NGA), and the National Security Agency 
(NSA) each to develop a corrective action plan, with major 
milestones, that delineates how such agencies will achieve 
compliance with the Improper Payments Elimination and Recovery 
Act of 2010, not later than September 30, 2013. Section 305(b) 
requires the relevant inspectors general to review the 
corrective action plan and assess whether it is likely to lead 
to compliance. Each assessment is to be provided to the 
congressional intelligence committees. The corrective action 
plans and inspector general assessments involving the DIA, NGA, 
and NSA shall also be submitted to the armed services 
committees of the Senate and House of Representatives.

Section 306. Authorities of the Inspector General of the Intelligence 
        Community

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

Section 307. Modification of reporting schedule

    Section 307 changes the dates by which the IC IG and the 
CIA IG are required to prepare and submit semiannual reports on 
the activities of their offices from a calendar year basis to a 
fiscal year basis. This change will align these reporting 
requirements with the reporting requirements of other 
inspectors general in the Intelligence Community and facilitate 
joint audits, inspections and investigations.

Section 308. Repeal or modification of certain reporting requirements

    Congress frequently requests information from the 
Intelligence Community in the form of reports, the contents of 
which are specifically defined by statute. The reports prepared 
pursuant to these statutory requirements provide Congress with 
an invaluable source of information about specific matters of 
concern.
    The Committee recognizes, however, that congressional 
reporting requirements, and particularly recurring reporting 
requirements, can place a significant burden on the resources 
of the Intelligence Community. The Committee is therefore 
reconsidering these reporting requirements on a periodic basis 
to ensure that the reports that have been requested are the 
best mechanism for the Congress to receive the information it 
seeks. In some cases, annual reports can be replaced with 
briefings or notifications that provide the Congress with more 
timely information and offer the Intelligence Community a 
direct line of communication to respond to congressional 
concerns.
    In response to a request from the DNI, the Committee 
examined a set of recurring reporting requirements nominated by 
the Intelligence Community including those which arise from 
legislation reported or managed by committees other than the 
congressional intelligence committees.
    In addition, the Committee consulted directly with these 
other Senate committees that receive reports identified by the 
DNI. Section 308 eliminates eight reports that were burdensome 
to the Intelligence Community when the information in the 
reports could be obtained through other means or was no longer 
considered relevant to current concerns. Section 308 also 
modifies the period for two reporting requirements.

     Title IV--Matters Relating to the Central Intelligence Agency


Section 401. Authorities of the Inspector General for the Central 
        Intelligence Agency

    Section 401 authorizes the CIA IG to designate certain 
officers or employees in investigative positions within the 
Office of the Inspector General as law enforcement officers 
solely for the purpose of certain federal law enforcement 
retirement and pension benefit laws. The DNI requested this 
authority for the benefit of the CIA IG based upon the 
difficulties of the CIA IG in recruiting and retaining 
experienced professional investigators from the law enforcement 
and inspectors general community.
    The Committee considered this request of the DNI during the 
development of the Fiscal Year 2012 bill. Section 415 of the 
Intelligence Authorization Act for Fiscal Year 2012 (Public Law 
112-87) directed the Inspector General of the Office of 
Personnel Management (OPM IG) to do a study of the personnel 
authorities and available personnel benefits of the CIA IG to 
include: (1) identification of any barriers or disincentives to 
the recruitment or retention of experienced investigators 
within the CIA IG's office; and (2) a comparison of the 
personnel authorities of the CIA IG with those of inspectors 
general of other agencies.
    The report of the OPM IG was completed in June 2012 and 
confirmed that the CIA IG's inability to designate certain 
positions as law enforcement officers for retirement purposes 
``is a disincentive to the recruitment of experienced criminal 
investigators.'' With respect to the CIA IG's mission-related 
critical needs, the report noted that the CIA IG, like most 
inspectors general, investigates ``a mixture of criminal, 
civil, and administrative cases'' to include assault, contract 
fraud, illegal gratuities/bribery, possession of child 
pornography, sexual assault, theft, and weapons violations. The 
OPM IG concluded that ``in order for the CIA Inspector General 
to fully achieve his mission of conducting independent and 
effective oversight of CIA operations and programs, he needs to 
select and retain professionally trained criminal 
investigators. To do so, his office must have the authority to 
offer potential candidates the same retirement benefits that 
they would receive in essentially identical positions at other 
[inspectors general offices].''
    The Committee held a hearing with the IC IG, the CIA IG, 
and inspectors general from three other intelligence agencies 
on June 5, 2012, concerning issues facing inspectors general 
within the Intelligence Community, including questions 
concerning the inability of the IC IG and the CIA IG to offer 
law enforcement retirement and pension benefits to their 
officers and employees. The Committee expects be kept informed 
of the plans of the IC IG and the CIA IG to exercise this 
authority upon enactment.

Section 402. Working capital fund amendments

    Section 402 amends Section 21 of the Central Intelligence 
Agency Act of 1949 (50 U.S.C. 403u) to provide authority for 
the service providers under the CIA Central Services Program to 
use resources to make their services known to their authorized 
customer base through government communication channels, but 
clarifies this authority shall not be used to distribute gifts 
or promotional items. In addition, Section 402 authorizes 
service providers to deposit receipts from the sale of their 
recyclable materials into the CIA working capital fund.

 Title V--Preventing Unauthorized Disclosures of Classified Information


Section 501. Notification regarding the authorized public disclosure of 
        national intelligence

    Section 501 requires government officials responsible for 
making certain authorized disclosures of national intelligence 
or intelligence related to national security to notify the 
congressional intelligence committees concurrent with such 
disclosures.
    This provision is intended to ensure that the intelligence 
committees are made aware of authorized disclosures of national 
intelligence or intelligence related to national security that 
are made to media personnel or likely to appear in the press, 
so that, among other things, these authorized disclosures may 
be distinguished from unauthorized ``leaks.''
    Section 501(c) provides that the notification requirement 
does not apply to a disclosure made pursuant to statutory 
requirements, in connection with civil, criminal or 
administrative proceedings, as a result of a declassification 
review process under Executive Order 13526, or to cleared 
government representatives with a need to know.

Section 502. Requirement to record authorized disclosures of classified 
        information

    Section 502 requires that the head of each element of the 
Intelligence Community maintain a record of certain authorized 
disclosures of classified information and to make such records 
available for review by the congressional intelligence 
committees.
    This provision is intended to ensure that Intelligence 
Community elements maintain a record of authorized disclosures 
of classified information that are made to media personnel or 
likely to appear in the press, which may facilitate the 
investigation of unauthorized disclosures of classified 
information.

Section 503. Procedures for conducting administrative investigations of 
        unauthorized disclosures

    Section 503 directs the DNI to establish procedures, within 
90 days, to be implemented by each element of the Intelligence 
Community, for the conduct of investigations of unauthorized 
disclosures of classified information.
    On May 7, 2011, the DNI established procedures and guidance 
for conducting investigations of unauthorized disclosures. 
These implemented a series of reforms relating to the conduct 
of administrative investigations of unauthorized disclosures 
and the prioritization of crimes reports.
    Section 503 codifies a statutory mandate for these 
procedures and requires that they incorporate certain 
additional elements not present in the existing procedures and 
guidance.

Section 504. Assessment of procedures for detecting and preventing 
        unauthorized disclosures

    Section 504(a) directs the DNI to prepare an assessment to 
be provided to the congressional intelligence committees, 
within 120 days, regarding the feasibility of extending the use 
of the polygraph, the benefits of extending automated insider 
threat detection capabilities, and actions that could be taken 
to address improper classification.
    Section 504(b) directs the IC IG to perform an assessment, 
within 120 days, of the effectiveness of the process used by 
each element of the Intelligence Community for preventing, 
detecting, and investigating unauthorized disclosures of 
classified information and describe any best practices that 
could be replicated throughout the Intelligence Community.

Section 505. Prohibition on certain individuals serving as consultants

    Section 505 prohibits certain persons possessing an active 
security clearance from entering into contracts or other 
binding agreements with the media in order to provide analysis 
or commentary on matters concerning classified intelligence 
activities or intelligence related to national security. 
Section 505 also prohibits certain persons who formerly 
possessed an active security clearance for access to top 
secret, sensitive compartmented information from entering into 
such contracts or agreements for a period of one year after 
they leave government service.
    This provision is intended to restrict the practice of 
current and former cleared government personnel appearing in 
media broadcasts in order to discuss matters concerning 
classified intelligence activities.

Section 506. Limitation on persons authorized to communicate with the 
        media

    Section 506 provides that for each element of the 
Intelligence Community, only the Director and Deputy Director 
of such element and individuals in the offices of public 
affairs who are specifically designated by the Director may 
provide background or off-the-record information regarding 
intelligence activities to the media.
    Section 506(b) clarifies that this section does not 
prohibit an officer or employee of an element of the 
Intelligence Community from providing authorized, unclassified, 
on-the-record briefings to the media, or to any person 
affiliated with the media. Thus, this provision would not 
prohibit an Intelligence Community official from providing 
necessary threat or other unclassified information to the 
public, provided the official was acting in his or her official 
capacity and was authorized to speak to the media on-the-
record.

Section 507. Responsibilities of Intelligence Community personnel with 
        access to classified information

    Section 507 provides that, within 120 days, the DNI shall 
prescribe regulations and requirements specifying the 
responsibilities of Intelligence Community personnel with 
access to classified information, including regulations and 
other requirements relating to contact with the media, non-
disclosure agreements, prepublication review, and disciplinary 
actions.

Section 508. Report on improvements to the criminal process for 
        investigating and prosecuting unauthorized disclosures of 
        classified information

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

Section 509. Improving insider threat initiatives

    Section 509 requires that the head of each element of the 
Intelligence Community designate an insider threat program 
manager with responsibility for developing a comprehensive 
insider threat program management plan.
    The Committee has determined that existing intelligence 
community efforts to counter insider threats are not centrally 
managed so as to effectively allocate resources between and 
among the disciplines of counterintelligence, physical 
security, information security, and human resources.
    Section 509(a) specifies that an insider threat program 
manager designated by an element head shall have access to all 
relevant information regarding the allocation of resources to 
efforts by such element to counter insider threats, but that 
such access does not necessarily need to include information 
concerning specific counterintelligence or security 
investigations, which may need to remain compartmented. 
Nonetheless, the head of an element, at his or her discretion, 
may conclude that the insider threat program manager for the 
element should have access to information concerning specific 
counterintelligence or security investigations and authorize 
such access.
    Sections 509(b) and 509(c) set forth milestones for the 
development and implementation of a comprehensive insider 
threat program management plan for each element, including a 
requirement that the plan be approved by the head of the 
element and the DNI, notified to the congressional intelligence 
committees, and implemented within two years of the date of 
enactment of the Act.

Section 510. Automated insider threat detection program

    Section 510 extends by one year the milestones for 
establishment of an automated insider threat detection program 
under Section 402 of the Intelligence Authorization Act for 
Fiscal Year 2011 (Public Law 112-18). The administration had 
requested a two-year extension of the milestone for ``initial 
operating capability'' and a three-year extension of the 
milestone for ``full operating capability.'' The Committee, 
however, believes that the Intelligence Community must move 
more rapidly toward establishment of this program.

Section 511. Surrender of certain benefits

    Section 511 authorizes the surrender of government 
contributions made to an individual's current or future federal 
pension benefits if it is determined that the individual 
violated the prepublication review requirements of his signed 
non-disclosure agreement in a manner that disclosed classified 
information to an unauthorized person or entity. Section 511(a) 
requires the DNI to publish regulations, in coordination with 
the head of each element of the Intelligence Community, which 
set forth the administrative procedures applicable to an 
employee who violates the written terms of his signed non-
disclosure agreement. In order to ensure that the government's 
procedures governing classified information are administered in 
an integrated manner, regulations published under Section 511 
shall be consistent with any procedures established by 
Executive order or regulation under Section 801 of the National 
Security Act.
    Section 511(b) requires that such non-disclosure agreements 
will: (1) prohibit an employee from disclosing classified 
information without authorization; (2) require the employee to 
comply with all prepublication review requirements; (3) specify 
appropriate disciplinary action, including the surrender of any 
current or future federal government pension benefits, to be 
taken against the employee if the DNI or the head of the 
employee's element of the Intelligence Community determines 
that the employee knowingly violated the prepublication review 
requirements contained in the non-disclosure agreement in a 
manner that disclosed classified information to an unauthorized 
person or entity; and (4) describe procedures for making and 
reviewing disciplinary determinations in a manner consistent 
with the due process and appeal rights otherwise available to 
an employee who is subject to the same or similar disciplinary 
action under existing law. These non-disclosure agreement 
requirements are consistent with and do not supersede, conflict 
with, or otherwise alter Intelligence Community employee 
obligations, rights, or liabilities established by federal law, 
statute, or regulation. In particular, the Committee notes that 
this provision has no impact on any laws relating to 
whistleblowers. Unauthorized disclosure of classified 
information to the media or the public is not permissible under 
any existing whistleblower protection laws, and would therefore 
not be covered under this provision.
    Section 511 provides a mechanism for the DNI to enforce the 
contractual obligations contained in a non-disclosure agreement 
with respect to prepublication review requirements, for both 
current and former Intelligence Community employees. Such 
agreement may be enforced either during or subsequent to 
employment. The use of the term ``surrender'' is crucial to 
this contractual concept. Section 511 is not intended to give 
the DNI the authority to revoke or take pension benefits on his 
own and without reference to the agreement between the employee 
and the Intelligence Community element. Rather, each individual 
employee may now be held to the promise to surrender federal 
government pension benefits if it is determined, in accordance 
with the applicable administrative procedures, that the 
individual knowingly violated the prepublication review 
requirements in a manner that disclosed classified information 
to an unauthorized person or entity. It is important to note 
that there is no requirement that the disclosure of classified 
information also be done knowingly. The Committee believes that 
imposing such a requirement would allow those who purposely 
bypass the prepublication review procedures to claim that they 
did not reasonably know that their published information was 
classified--a fact about which they would have been informed 
had they complied with their prepublication requirements in the 
first place.
    For the purposes of Section 511, the term ``federal 
government pension benefit'' includes the specific government 
contributions to an employee's Federal Government pension plan, 
in its fair market value. The term does not include any Social 
Security benefits, Thrift Savings Plan benefits or 
contributions, or any contribution by a person to a federal 
government pension plan, in their fair market value. These 
limitations ensure that the only part of the individual's 
pension that is subject to surrender under the authorities of 
this provision is that portion funded by U.S. taxpayers.
    The Committee notes that the DNI expressed objections to a 
similar provision that appeared in Section 403 of S. 719, the 
Intelligence Authorization Act for Fiscal Year 2011, as 
reported by the Committee on April 4, 2011. The DNI's letter of 
April 12, 2011, specifying those objections, may be found in 
the Appendix.

Section 512. Prohibition on security clearances for individuals who 
        disclose to the public evidence or information on United States 
        covert actions

    Section 512 provides that, consistent with administrative 
procedures and due process afforded under otherwise applicable 
laws and regulations, individuals employed by, or under 
contract to, the Federal Government, or possessing an active 
security clearance, may not receive, retain, or otherwise 
possess a security clearance if they are determined to have 
knowingly made an unauthorized public disclosure of classified 
information concerning a classified covert action. This 
provision would not apply to such authorized disclosures of 
classified information concerning a classified covert action 
that are made between and among individuals possessing the 
requisite security clearances and need to know. Further, the 
Committee does not intend that approval by an original 
classification authority must be required for each individual 
disclosure in order to be considered ``authorized.''

                        Title VI--Other Matters


Section 601. Authorization of the Homeland Security Intelligence 
        Program

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

Section 602. Extension of National Commission for the Review of the 
        Research and Development Programs of the United States 
        Intelligence Community

    Section 602 extends the date by which the National 
Commission for the Review of the Research and Development 
Programs of the United States Intelligence Community is 
required to submit a report on its findings from ``not later 
than one year after the date on which all members of the 
Commission are appointed pursuant to Section 701(a)(3) of the 
Intelligence Authorization Act for Fiscal Year 2010'' to not 
later than March 31, 2013, which is effectively one year after 
the Commission was able to begin its review. The extension was 
requested by the co-chairs of the Commission in a letter to the 
Committee.

Section 603. Public Interest Declassification Board

    The Public Interest Declassification Board (PIDB) was 
created in the Intelligence Authorization Act for Fiscal Year 
2000 to promote public access to a thorough, accurate, and 
reliable documentary record of significant United States 
national security decisions and activities. Section 603 extends 
the authorization for the PIDB to 2018 and eliminates certain 
limitations on the length of service of members of the Board.

Section 604. Provision of classified opinions of the Office of Legal 
        Counsel to Congress

    Section 604 requires the Attorney General to provide 
certain information concerning opinions of the Office of Legal 
Counsel (OLC) at the Department of Justice to the congressional 
intelligence committees.
    Section 604(a) requires the Attorney General, in 
coordination with the DNI, to provide the congressional 
intelligence committees with a copy of every classified OLC 
opinion that was provided to an element of the Intelligence 
Community on or after September 11, 2001.
    Section 604(b) requires the Attorney General, in 
coordination with the DNI, to provide the congressional 
intelligence committees with an annual listing of every OLC 
opinion provided to an element of the Intelligence Community, 
whether classified or unclassified.
    Section 604(c) provides an exception to the disclosure 
requirements in sections 604(a) and (b) where the President 
determines that it is essential to limit access to a covert 
action finding under section 503(c)(2) of the National Security 
Act. In such cases, the President may limit access to 
information concerning such a finding that is subject to 
disclosure under subsection (a) or (b) to those members of 
Congress who have been granted access to the relevant finding.
    Section 604(d) provides a second exception to the 
disclosure requirements in sections 604(a) and (b) where the 
President determines that information subject to disclosure 
under subsection (a) or (b) is subject to Executive privilege. 
In such cases, the Attorney General must notify the 
congressional intelligence committees, in writing, of the legal 
justification for the assertion of the privilege prior to the 
date by which the opinion or listing is required to be 
disclosed.
    The Committee regularly conducts oversight of intelligence 
activities that are the subject of one or more OLC legal 
opinions. The Committee regards access to these legal opinions 
as necessary to the performance of its oversight functions and 
often requests access to such opinions when the committee is 
made aware of their existence.
    While the Committee in general is kept apprised of the 
legal basis for U.S. intelligence activities, neither the 
Department nor the Intelligence Community routinely 
accommodates the Committee's requests for full OLC opinions. 
Furthermore, oral or written summaries of the legal basis for 
U.S. intelligence activities often do not provide the level of 
detail necessary for the Committee to fully carry out its 
oversight functions, as such summaries often omit relevant 
information, including the application of law to the specific 
facts present in a particular intelligence activity.
    Finally, neither the Department nor the Intelligence 
Community regularly advises the Committee of the existence of 
OLC opinions that are relevant to the Committee's oversight 
functions. This presents a particular impediment to the 
Committee's oversight function, as the Committee cannot request 
access to legal analysis when it is not made aware that such 
analysis exists.
    The Committee recognizes that some OLC opinions are 
entitled to Executive privilege. The Committee further 
recognizes that access to information concerning certain 
compartmented covert action programs must be restricted. 
Therefore, subsections 604(c) and (d) provide exceptions for 
such cases.

Section 605. Technical amendments related to the Office of the Director 
        of National Intelligence

    Sections 2302 and 3132 of Title 5 of the United States Code 
exclude from the definition of ``agency'' under those chapters 
certain specifically listed agencies such as the CIA. In 
addition, Sections 2302 and 3132 exclude from the definition of 
``agency'' those executive agencies that the President 
determines have as their principal function ``the conduct of 
foreign intelligence or counterintelligence activities.'' 
Section 605 amends the definition of agency in Sections 2302 
and 3132 to expressly identify the ODNI as an agency excluded 
from the definition of ``agency'' under those chapters.

Section 606. Technical amendment for definition of intelligence agency

    Title VI of the National Security Act of 1947 imposes 
criminal penalties for the disclosure of the identity of covert 
agents of an intelligence agency. The current definition of an 
``intelligence agency'' does not include the 
counterintelligence elements of the Department of Defense or 
the intelligence and counterintelligence components of other 
elements of the Intelligence Community despite the fact that 
these components may be conducting counterintelligence 
operations jointly with the Federal Bureau of Investigation or 
under their own independent authority. Section 606 thus amends 
Section 606(5) of the National Security Act of 1947 (50 U.S.C. 
426) to revise the definition of ``intelligence agency'' to 
include all elements of the Intelligence Community, as found in 
Section 3(4) of the National Security Act.

Section 607. Budgetary effects

    Section 607 provides that the budgetary effects of this 
Act, for the purpose of complying with the Statutory Pay-As-
You-Go-Act of 2010, shall be determined by reference to the 
latest statement titled ``Budgetary Effects of PAYGO 
Legislation'' for this Act, submitted for printing in the 
Congressional Record by the Chairman of the Senate Budget 
Committee, provided that such statement has been submitted 
prior to the vote on passage.

                           Committee Comments


Unauthorized Disclosures of Classified Information

    The Committee is gravely concerned by both the quantity and 
substance of unauthorized disclosures of classified information 
(``leaks'') that continue to appear in media. The damage caused 
by such unauthorized disclosures cannot be overstated. Too many 
intelligence sources and methods have been compromised, ranging 
from counterintelligence capabilities to intelligence assets to 
foreign government relationships. As a result, terrorists and 
foreign adversaries have learned to improve their tactics, and 
American lives and the American national interest have been 
placed at greater risk.
    The Committee also recognizes that such leaks are not 
limited to any particular agency, department, or branch of 
government. Moreover, the Committee is aware that the 
publication of classified information is not always a direct 
result of leaks by government insiders. Journalists may obtain 
such information from foreign sources or eyewitness (or a 
combination of sources). Or, as is sometimes the case, 
journalists may report inaccurate information that only appears 
to be classified.
    The Committee-reported bill includes several legislative 
provisions that will help to prevent and detect unauthorized 
disclosures of classified information, identify those 
responsible, and ensure that they are appropriately 
disciplined. The Committee will continue to pay close attention 
to the issue of ``leaks'' and give careful consideration to 
other legislative measures that may be effective.
    The problem of leaks, however, does not readily lend itself 
to any single set of solutions. Measures taken must be balanced 
as efforts to prevent leaks by limiting access to classified 
information may also work to limit the availability of vital 
intelligence to analysts and policy makers who have a need to 
know. Aggressive efforts to identify and prosecute leakers must 
be tempered by the need to protect rights to freedom of speech, 
freedom of the press, and due process that are enshrined in the 
Bill of Rights. Therefore, the Committee calls upon the 
Executive branch to be vigilant in the protection of classified 
information, to aggressively but responsibly investigate all 
unauthorized disclosures of classified information within the 
bounds of the law, and to prosecute or otherwise punish those 
found to be responsible for such disclosures. As is its 
mandate, the Committee will oversee these measures to ensure 
that efforts to stem the tide of leaks remain a priority.
    Finally, the Committee calls upon those in all branches of 
government who have been entrusted with classified information 
to be mindful that they have taken an oath to protect that 
information, that they are duty bound to honor that oath, and 
that the security of the nation rests on their doing so.

Offices of Inspectors General Funded in the National Intelligence 
        Program

    The Committee is concerned about the stability of funding, 
personnel, and resources for the Offices of Inspectors General 
(OIGs) within the Intelligence Community and the policies and 
practices that may impede the mission or independence of these 
offices.
    To ensure that agencies do not realign or cut resources 
from the vital oversight activities of the OIGs once Congress 
has determined an OIG's funding and personnel levels, the 
Committee considers these levels to be congressional interest 
items. In addition, the Committee expects that the DNI and 
other heads of intelligence agencies will identify the budgets 
of the OIGs within the agencies as distinct projects in future 
budget requests.

Auditability

    While the Committee recognizes the Intelligence Community's 
notable efforts towards audibility in recent years, much 
remains to be achieved. Auditability is not just the 
responsibility of Intelligence Community financial management 
personnel--there must be a sustained commitment across the 
leadership of Intelligence Community agencies to align the 
resources and personnel efforts necessary to achieve success. 
Additionally, contracting officers, approving officers and 
budget officers must fully adopt the pursuit of auditability as 
a personal responsibility.
    The National Reconnaissance Office (NRO) has received an 
unqualified audit opinion from its independent auditors for 
three years. In order for the other major agencies of the 
Intelligence Community to achieve unqualified audit opinions by 
2016, critical work must be accomplished in Fiscal Year 2013. 
This requires the leadership of the ODNI, CIA, DIA, NSA and NGA 
to inculcate a sense of urgency, not just among financial 
managers, but also across the entire organization, to assure 
continued efforts are made to reach the ultimate goal of 
achieving ``clean'' audit statements.

Department of Defense Intelligence Analysis

    As part of its oversight activities, the Committee reviews 
analysis produced by intelligence elements across the United 
States Government. The Committee is pleased to have daily 
access to the Joint Staff J2 Daily Intelligence Briefing but is 
concerned that daily and periodic intelligence produced by the 
Joint Intelligence Operations Centers (JIOCs) of the combatant 
commands (COCOMs) is not being provided to the Committee on 
regular basis.
    The COCOM JIOCs make a significant contribution to the 
government's overall intelligence analysis. Each of the 
regional and functional COCOMs are members of the Defense 
Intelligence Analysis Program managed by the DIA with clearly 
defined all-source analytic responsibilities. The intelligence 
products of the COCOM JIOCs should be made available to the 
congressional intelligence committees. The Committee thus 
directs the Director of DIA and the Under Secretary of Defense 
for Intelligence to ensure that the congressional intelligence 
committees are regularly provided with daily and periodic 
intelligence products from the JIOCs.

Space Launch

    The Committee remains concerned over space launch costs, 
particularly of the Air Force's Evolved Expendable Launch 
Vehicle (EELV) program. Costs have increased dramatically over 
several years. Fortunately, actions by both the United Launch 
Alliance (ULA) and the U.S. Air Force seem to have curtailed 
this cost growth in the near term. The Committee encourages 
both these groups to continue to seek efficiencies in the EELV 
program.
    The Air Force and the NRO remain committed to the EELV 
program and are entering into agreements to buy Atlas-V and 
Delta-IV rockets in multi-booster blocks in an attempt to 
stabilize the EELV industrial base and garner further savings. 
However, at least one new entrant is demonstrating enough 
potential to enable competition.
    The Committee believes it is in the nation's economic and 
national security interests to promote competition among U.S. 
space launch providers, and to do so as soon as potential 
competitors are viable.
    The Committee understands that costs advertised by new 
space launch entrants may increase as those companies integrate 
rigorous Air Force processes, which, while suited for ensuring 
high levels of mission assurance, add substantial costs 
compared to those used in the commercial space launch sector.
    One private space launch provider, SpaceX, has spent a 
total of $1.2 billion since its inception in 2002. This amount 
includes developing the Falcon 1 rocket, Falcon 9 rocket, and 
Dragon capsule; building out the manufacturing facility in 
Hawthorne, California, the Rocket Development Facility in 
McGregor, Texas, and the launch complex in Kwajalein; 
construction to date of Space Launch Complex 40 at Cape 
Canaveral; and total costs of multiple Falcon 1 flights and 
three Falcon 9 flights. The U.S. government has much to gain 
with the success of SpaceX and the commercial orbital 
transportation services and cargo resupply services programs 
are infusing critical investments in the company.
    The current EELV launch capability contract totals 
approximately $1.2 billion per year just to maintain the 
infrastructure to launch an EELV. Launch costs for each 
satellite are additive to that amount.
    The Committee believes the government should continue to 
position itself for the use of alternative launch providers 
pending demonstrations of reliability and performance in the 
EELV program. It is the hope that the government can reduce 
costs through competition while maintaining a strong and 
healthy industrial base to ensure access to space for national 
security missions.
    As the NRO works with alternative providers, the Committee 
directs the Office to place each of its planned launches into 
one of the three categories in the risk-based certification 
framework.

                            Committee Action

    On July 24, 2012, a quorum being present, the Committee met 
to consider the bill and amendments. The Committee took the 
following actions:

Votes on amendments to committee bill, this report and the classified 
        annex

    By unanimous consent, the Committee made the Chairman and 
Vice Chairman's bill and classified annex the base text for 
purposes of amendment. The Committee also authorized the staff 
to make technical and conforming changes in the bill, report, 
and annex, following the completion of the mark-up.
    By a voice vote, the Committee agreed to the following en 
bloc amendments to: (1) expand congressional reporting of 
comprehensive insider threat program management plans, by 
Chairman Feinstein and Vice Chairman Chambliss; (2) amend the 
classified Schedule of Authorizations and annex, by Senator 
Coats, Senator Mikulski, and Senator Warner; (3) prohibit 
security clearances for those who knowingly disclose to the 
public classified information on U.S. covert actions, by 
Senator Burr; (4) amend the classified annex, by Senator 
Nelson; (5) amend the classified annex, by Senator Risch, as 
amended by Chairman Feinstein; (6) amend the classified 
Schedule of Authorizations and annex, by Senator Warner and 
Senator Udall as amended by Chairman Feinstein; (7) amend the 
classified annex, by Senator Warner; (8) amend the classified 
Schedule of Authorizations and annex, by Senator Rubio; (9) 
amend the classified annex, by Senator Rubio; (10) amend the 
classified annex, by Senator Rubio; (11) amend the classified 
Schedule of Authorizations and annex, by Senator Udall as 
amended by Vice Chairman Chambliss; (12) amend the classified 
Schedule of Authorizations and annex, by Senator Nelson as 
amended by Chairman Feinstein; and (13) amend the classified 
Schedule of Authorizations and annex, by Senator Blunt.
    By a vote of 8 ayes to 7 noes, the Committee adopted an 
amendment by Vice Chairman Chambliss to the managers' amendment 
to provide for the surrender of government pension benefits by 
Intelligence Community employees or former employees who 
knowingly violate pre-publication requirements in non-
disclosure agreements in a manner that disclosed classified 
information. The votes in person or by proxy were as follows: 
Chairman Feinstein--no; Senator Rockefeller--no; Senator 
Wyden--no; Senator Mikulski--no; Senator Nelson--aye; Senator 
Conrad--no; Senator Udall--no; Senator Warner--no; Vice 
Chairman Chambliss--aye; Senator Snowe--aye; Senator Burr--aye; 
Senator Risch--aye; Senator Coats--aye; Senator Blunt--aye; 
Senator Rubio--aye.
    By a vote of 15 ayes to zero noes, the Committee adopted 
the managers' amendment as amended. The votes in person or by 
proxy were as follows: Chairman Feinstein--aye; Senator 
Rockefeller--aye; Senator Wyden--aye; Senator Mikulski--aye; 
Senator Nelson--aye; Senator Conrad--aye; Senator Udall--aye; 
Senator Warner--aye; Vice Chairman Chambliss--aye; Senator 
Snowe--aye; Senator Burr--aye; Senator Risch--aye; Senator 
Coats--aye; Senator Blunt--aye; Senator Rubio--aye.
    By a vote of 10 ayes to 5 noes, the Committee adopted an 
amendment by Chairman Feinstein to authorize the CIA Inspector 
General and the Inspector General of the Intelligence Community 
to make individuals who hold investigative positions within 
their offices eligible for federal law enforcement retirement 
benefits. The votes in person or by proxy were as follows: 
Chairman Feinstein--aye; Senator Rockefeller--aye; Senator 
Wyden--aye; Senator Mikulski--aye; Senator Nelson--aye; Senator 
Conrad--aye; Senator Udall--aye; Senator Warner--aye; Vice 
Chairman Chambliss--no; Senator Snowe--aye; Senator Burr--no; 
Senator Risch--no; Senator Coats--no; Senator Blunt--aye; 
Senator Rubio--no.
    By a vote of 15 ayes to zero noes, the Committee adopted an 
amendment to the classified annex by Senator Nelson. The votes 
in person or by proxy were as follows: Chairman Feinstein--aye; 
Senator Rockefeller--aye; Senator Wyden--aye; Senator 
Mikulski--aye; Senator Nelson--aye; Senator Conrad--aye; 
Senator Udall--aye; Senator Warner--aye; Vice Chairman 
Chambliss--aye; Senator Snowe--aye; Senator Burr--aye; Senator 
Risch--aye; Senator Coats--aye; Senator Blunt--aye; Senator 
Rubio--aye.
    By unanimous consent, the Committee agreed to an amendment 
to the classified annex by Senator Risch, as amended by 
Chairman Feinstein.

Vote to report the committee bill

    The Committee voted to report the bill as amended, by a 
vote of 14 ayes and 1 no. The votes in person or by proxy were 
as follows: Chairman Feinstein--aye; Senator Rockefeller--aye; 
Senator Wyden--no; Senator Mikulski--aye; Senator Nelson--aye; 
Senator Conrad--aye; Senator Udall--aye; Senator Warner--aye; 
Vice Chairman Chambliss--aye; Senator Snowe--aye; Senator 
Burr--aye; Senator Risch--aye; Senator Coats--aye; Senator 
Blunt--aye; Senator Rubio--aye.

                       Compliance With Rule XLIV

    Rule XLIV of the Standing Rules of the Senate requires 
publication of a list of any ``congressionally directed 
spending item, limited tax benefit, and limited tariff 
benefit'' that is included in the bill or the committee report 
accompanying the bill. Consistent with the determination of the 
Committee not to create any congressionally directed spending 
items or earmarks, none have been included in the bill, the 
report to accompany it, or the classified schedule of 
authorizations. The bill, report, and classified schedule also 
contain no limited tax benefits or limited tariff benefits.

                           Estimate of Costs

    Pursuant to paragraph 11(a)(3) of rule XXVI of the Standing 
Rules of the Senate, the Committee deems it impractical to 
include an estimate of the costs incurred in carrying out the 
provisions of this report due to the classified nature of the 
operations conducted pursuant to this legislation. On July 30, 
2012, the Committee transmitted this bill to the Congressional 
Budget Office and requested it to conduct an estimate of the 
costs incurred in carrying out unclassified provisions.

                    Evaluation of Regulatory Impact

    In accordance with paragraph 11(b) of rule XXVI of the 
Standing Rules of the Senate, the Committee finds that no 
substantial regulatory impact will be incurred by implementing 
the provisions of this legislation.

                        Changes in Existing Laws

    In the opinion of the Committee, it is necessary to 
dispense with the requirements of paragraph 12 of rule XXVI of 
the Standing Rules of the Senate in order to expedite the 
business of the Senate.

                   ADDITIONAL VIEWS OF SENATOR NELSON

    My amendment, which was adopted by a rollcall vote of 15-0, 
relates to critical decisions regarding replenishment of our 
nation's imagery architecture. Those decisions should not be 
rushed, and must be informed by a complete and comprehensive 
understanding of all available options.

                                   Bill Nelson.

 ADDITIONAL VIEWS OF SENATORS WARNER, MIKULSKI, BLUNT, UDALL AND NELSON

                      Commercial Satellite Imagery

    In our constrained budget environment, we are committed to 
reducing the billions of dollars in costs of acquiring electro-
optical satellite imagery needed to satisfy the requirements of 
our nation's leaders, intelligence agencies, and military 
forces, while at the same time pursuing innovative solutions 
and technologies that may be obtained at substantial cost 
savings to the taxpayer over government-owned and operated 
systems.
    Leveraging the commercial satellite industry--and sharing 
costs with private sector investment--helps meet the 
government's satellite imagery needs in an affordable manner. 
Moreover, meeting growing requirements for unclassified 
commercial imagery that can be easily used in the field by our 
military forces, shared readily with allies, and provided 
quickly to first-responders during natural disasters such as 
floods or forest fires, should be a high priority.
    We are concerned about the process by which major decisions 
that will have negative, irreversible impacts on the U.S. 
commercial satellite industry were made. Cuts were made to 
commercial imagery even before the completion of the Office of 
Management and Budget-ordered review to determine future needs.
    Of even greater concern is that these decisions were in 
direct contravention of the President's ``Way Ahead'' strategy 
for electro-optical imaging; the National Space Policy (PPD-4), 
which directs the Executive Branch to ``purchase and use 
commercial space capabilities and services to the maximum 
practical extent when such capabilities and services are 
available in the marketplace and meet the U.S. Government's 
requirements [and] modify commercial space capabilities and 
services to meet government requirements when . . . the 
potential modification represents a more cost-effective and 
timely acquisition approach for the government''; and the 
Commercial Remote Sensing Policy, which states that the 
``United States Government will rely to the maximum practical 
extent on U.S. commercial remote sensing space capabilities for 
filling imagery and geospatial needs for military, 
intelligence, foreign policy, homeland security and civil 
users.''
    This decision process put the proverbial cart before the 
horse: a major program established by the Director of National 
Intelligence and the Secretary of Defense should be thoroughly 
examined before a decision to reduce it, not afterwards.
    Cutbacks to the commercial satellite industry may result in 
the reduction of an American industrial base that creates high-
tech jobs at home and has produced a nascent, yet innovative 
industry that has outpaced foreign competition. We have just 
seen the two major U.S. commercial imagery providers propose to 
merge into a single source of commercial imagery for the 
government--a development that could lead to a loss of 
competition and innovation, as well as higher costs.
    The Intelligence Community's decisions led directly to this 
proposed merger. The commercial imagery providers took on 
greater risks and operating costs on an accelerated schedule 
and involving additional capital investments. They did so on 
the basis of the Government's request that commercial providers 
increase their collection capacity. The Intelligence 
Community's precipitous budgetary decision to reduce commercial 
imagery purchases has left both providers in a precarious 
position.
    We are deeply concerned that this decision by the 
Government presented Congress with a fait accompli and left the 
legislative branch no chance to decide on the appropriate 
funding levels for commercial imagery.
    While we are disappointed that the Committee did not 
address this issue through funding in the current version of 
this bill, we hope that it still will be addressed in the 
conferencing of this legislation. Furthermore, we support the 
actions of the Senate Armed Services Committee, which in its 
Fiscal Year 2013 National Defense Authorization Act, reported 
to the Senate on June 4, 2012, recommended an increase of $125 
million to restore some of the funding that was cut, as well as 
a provision that would require the Director of National 
Intelligence and the Secretary of Defense to sustain commercial 
imagery collection capacity today and into the future.

                                   Mark R. Warner.
                                   Barbara A. Mikulski.
                                   Roy Blunt.
                                   Mark Udall.
                                   Bill Nelson.

                   ADDITIONAL VIEWS OF SENATOR WARNER

    I support the passage of this bill, which contains robust 
provisions to stop leaks of classified information that damage 
our national security. As a relatively new member of this 
Committee I have been shocked at how much information I see on 
the front pages of our newspapers that ought to be kept behind 
closed doors. The culture in Washington, which has led to this 
proliferation of leaks, must be changed, so that we will no 
longer read almost every week about a new disclosure that can 
do grave harm to the nation.
    Nevertheless, I also strongly believe that the Congress 
must be extremely careful about protecting the rights of 
intelligence community employees: they should not face a 
penalty such as the loss of pensions, without the due process 
protections afforded to every American. Furthermore, I believe 
it would be unfair to single out our intelligence officers for 
such penalties without also covering the literally thousands of 
other individuals who have access to sensitive information.

                                   Mark R. Warner.

                    MINORITY VIEWS OF SENATOR WYDEN

    This intelligence authorization bill is the result of 
significant work by Chairman Feinstein, Vice Chairman Chambliss 
and their staff, and I commend them for the bipartisan manner 
in which they have worked to put it together. I believe that 
this bill contains several worthwhile provisions, including one 
that would renew the mandate for the Public Interest 
Declassification Board, and another that seeks to improve 
Congress' access to secret legal opinions written by the 
Department of Justice. Understanding how the executive branch 
secretly interprets public laws is an essential part of 
deciding whether laws need to be updated or reformed, so I am 
grateful for the leadership that Senators Feinstein and 
Chambliss have shown in trying to improve Congress' access to 
this secret legal analysis.
    This bill also contains a number of provisions that are 
intended to address the problem of unauthorized disclosures of 
classified information. I share my colleagues' frustration with 
the problem of unauthorized disclosures. As the son of a 
newspaperman, I have great respect for the press and the 
absolutely vital role that they play in a democratic society, 
and I believe that it is particularly important to have 
transparent public debate about issues of foreign policy and 
national security. And I can certainly recall specific 
instances in which, despite my seat on the Senate Intelligence 
Committee, I found out about serious government wrongdoing--
such as the NSA's warrantless wiretapping program or the CIA's 
coercive interrogation program--only as a result of disclosures 
by the press. It is also true, however, that unauthorized 
disclosures can jeopardize legitimately sensitive government 
activities and operations, and even put lives at risk.
    One of the best analyses I have seen of the problem of 
unauthorized disclosures was a report published in July 2011 by 
the National Intelligence University. The report observed that 
this problem has been around for several decades, noting 
specifically that ``The relative consistency in the number of 
unauthorized disclosures over the past 30 years demonstrates 
their persistent nature, independent of which political party 
controls the White House or Congress.'' It also suggested that 
because it is typically very difficult to identify government 
employees responsible for disclosing classified information to 
the media, unauthorized disclosures are not a problem that can 
be solved with legislation. (The report also cited a number of 
other studies that have reached this same conclusion.) That 
being said, I see no reason why Congress should not try to help 
the executive branch safeguard information that it wishes to 
protect, as long as Congress is careful not to do more harm 
than good. I myself spent four years working on legislation to 
increase the criminal penalty for people who are convicted of 
deliberately exposing covert agents, out of concern for both 
national security and the well-being of the covert agents 
themselves. And I am proud to say that with help from a number 
of my Republican and Democratic colleagues, this legislation 
was finally signed into law in 2010.
    Title V of this bill contains a number of provisions that 
are intended to address the problem of unauthorized 
disclosures. I am looking forward to further debate on these 
provisions, but I have serious concerns about one of them in 
particular, and that is the reason that I voted against this 
bill.
    Section 511 of this bill would require the Director of 
National Intelligence (DNI) to establish an administrative 
process under which the DNI and the heads of the various 
intelligence agencies would have the authority to take away 
pension benefits from an intelligence agency employee (or a 
former employee) if the DNI or the agency head ``determines'' 
that the employee has knowingly violated his or her 
nondisclosure agreement and disclosed (or ``leaked'') 
classified information.
    I am concerned that the Director of National Intelligence 
himself has said that this provision would not be a significant 
deterrent to leaks, and that it would neither help protect 
sensitive national security information nor make it easier to 
identify and punish actual leakers. Beyond these concerns about 
the provision's effectiveness, I am also concerned that giving 
intelligence agency heads the authority to take away the 
pensions of individuals who haven't been formally convicted of 
any wrongdoing could pose serious problems for the due process 
rights of intelligence professionals, and particularly the 
rights of whistleblowers who report waste, fraud and abuse to 
Congress or Inspectors General. I raised this same concern when 
the provision was included in the Senate Intelligence 
Committee's version of the intelligence authorization bill for 
fiscal year 2011, so I will repeat my reasoning here.
    Section 511--as approved by the Select Committee on 
Intelligence--gives the intelligence agency heads the power to 
take pension benefits away from any employee that an agency 
head ``determines'' has knowingly violated their nondisclosure 
agreement. However, it is entirely unclear to me which standard 
agency heads would use to ``determine'' that a particular 
employee was guilty of disclosing information. It seems clear 
that section 511 gives agency heads the power to make this 
determination themselves, without going to a court of law, but 
the language of the provision provides virtually no guidance 
about what standard should be used, or even whether this 
standard could vary from one agency to the next. No agency 
heads have yet told Congress what standard they believe they 
would be inclined or required to use. This means that if an 
agency head ``determines'' that a particular individual is 
responsible for a particular anonymous publication, he or she 
could conceivably take action to revoke that individual's 
pension benefits even if the agency does not have enough proof 
to convict the employee in court.
    Section 511 states that agency heads must act ``in a manner 
consistent with the due process and appeal rights otherwise 
available to an individual who is subject to the same or 
similar disciplinary action under other law.'' But federal 
agencies do not normally take away the pension benefits of 
former employees unless they are convicted of a crime or begin 
openly working for a foreign government. I do not believe that 
this ``otherwise available'' language is intended to require 
the government to get a criminal conviction, but beyond that I 
am not at all sure what impact this language is supposed to 
have and I am not sure that the various intelligence agency 
heads will know what it means either. This only increases my 
concern that this provision could be used to undermine or 
violate the due process rights of intelligence agency 
employees.
    I am also especially troubled that section 511 is silent 
regarding disclosures to Congress and Inspectors General. 
Everyone hopes that intelligence agency managers and 
supervisors will act honorably and protect whistleblowers who 
come forward and go through proper channels to report waste, 
fraud and abuse in national security agencies, but this is 
unfortunately not always the reality. There are existing laws 
in place that are intended to protect whistleblowers who 
provide information to Congress and Inspectors General--and I 
believe that these laws should be strengthened--but section 511 
does not specify whether it would supersede these existing 
statutes or not. I know that none of my colleagues would 
deliberately do anything to undermine protections for 
legitimate whistleblowers, but I am concerned that this 
provision could nonetheless have a negative impact on existing 
whistleblower protections.
    It is unfortunately entirely plausible to me that a given 
intelligence agency could conclude that a written submission to 
the congressional intelligence committees or an agency 
Inspector General is an ``unauthorized publication,'' and that 
the whistleblower who submitted it is thereby subject to 
punishment under section 511, especially since there is no 
explicit language in the bill that contradicts this conclusion. 
Withholding pension benefits from a legitimate whistleblower 
would be highly inappropriate, but overzealous and even 
unscrupulous individuals have served in senior government 
positions in the past, and will undoubtedly do so again in the 
future. This is why it is essential to have strong protections 
for whistleblowers enshrined in law, and this is particularly 
true for intelligence whistleblowers, since, given the covert 
nature of intelligence operations and activities, there are 
limited opportunities for public oversight. But reporting fraud 
and abuse by one's own colleagues takes courage, and no 
whistleblowers will come forward if they do not believe that 
they will be protected from retaliation.
    Finally, I remain somewhat perplexed by the fact that 
section 511 creates a special avenue of punishment that only 
applies to accused leakers who have worked directly for an 
intelligence agency at some point in their careers. There are 
literally thousands of employees at the Departments of Defense, 
State and Justice, as well as the White House, who have access 
to sensitive information. Some of the most serious leaks of the 
past few decades have undoubtedly been made by individuals 
working for these organizations. I do not see an obvious 
justification for singling out intelligence community 
employees, particularly in the absence of evidence that these 
employees are responsible for a disproportionate number of 
leaks. And I am concerned that it will be harder to attract 
qualified individuals to work for intelligence agencies if 
Congress creates the perception that intelligence officers have 
fewer due process rights than other government employees.
    Withholding pension benefits from individuals who are 
convicted of disclosing classified information may well be an 
appropriate punishment. This punishment is already established 
in existing laws, and I would be inclined to support efforts to 
clarify or strengthen these laws. But I am not inclined to give 
agency heads broad authority to take away the pensions of 
individuals who have not been convicted of wrongdoing, 
particularly when the agency heads themselves have not even 
told Congress how they would interpret and implement this 
authority. This is why I voted against this authorization bill. 
I look forward to working with my colleagues to amend this 
bill, and I hope that we will be able to reach an agreement 
that both achieves their goals and addresses my concerns. All 
of my colleagues and I agree that illegal leaks can be a 
serious problem, but this does not mean that anything at all 
that is done in the name of stopping leaks is necessarily wise 
policy.

                                   Ron Wyden.

                                APPENDIX

   [Letter of the Director of National Intelligence, April 12, 2011]

                         Director of National Intelligence,
                                                    Washington, DC.
Hon. Dianne Feinstein,
Chairman,
Hon. Saxby Chambliss,
Vice Chairman, Select Committee on Intelligence, U.S. Senate, 
        Washington, DC.
Hon. Mike Rogers,
Chairman,
Hon. C.A. ``Dutch'' Ruppersberger,
Ranking Member, Permanent Select Committee on Intelligence, U.S. House 
        of Representatives, Washington, DC.
    Dear Madam Chairman Feinstein, Chairman Rogers, Vice 
Chairman Chambliss, and Ranking Member Ruppersberger: The 
Administration thanks the Senate Select Committee on 
Intelligence and the House Permanent Select Committee on 
Intelligence for their continued support of the Intelligence 
Community (IC) and its mission. We greatly appreciate the 
Committees' willingness to work with the Administration, and we 
are pleased that both the Senate Select Committee on 
Intelligence and the House Permanent Select Committee on 
Intelligence have included several provisions in S. 719/H.R. 
754 that the Administration supports, namely, a technical fix 
for nonreimbursable details, specific expenditure authority for 
human intelligence and counterintelligence, modification to the 
schedule and requirements of the National Counterintelligence 
Strategy, and transfer authority for appropriations and other 
amounts for the intelligence elements of the Department of 
Defense. These provisions, if they become law, will facilitate 
more efficient operations and improve the IC's ability to 
accomplish its mission.
    While the Administration appreciates the above provisions, 
the Administration has significant concerns with other 
provisions of the bills and the accompanying Classified 
Annexes, which are outlined below:
Section 403, Unauthorized disclosure of classified information (S. 
        719):
    This provision requires the DNI to publish regulations 
relating to violations of prepublication review requirements 
contained in IC employee nondisclosure agreements. The 
Administration shares the Senate Select Committee on 
Intelligence's concern and frustration with the unacceptable 
number and severity of leaks of classified information. Leaks 
of classified information constitute a breach of public 
confidence and risk serious harm to the national security 
interests of the United States, including the lives of United 
States civilians and military service members, and citizens of 
our foreign partners.
    Despite these shared concerns, the Administration does not 
support Section 403. This is so for three principal reasons:
    First, the Administration does not believe that the 
potential loss of retirement benefits through an administrative 
forfeiture would constitute a deterrent sufficient to justify 
the creation of such process. Obviously, a predicate to any 
administrative process would be the identification of the 
leaker. Of course, leakers take steps to protect their identity 
and avoid any sanction--administrative or criminal--for their 
conduct. It seems unlikely that a leaker would take different 
steps to avoid apprehension based upon whether the leaker 
believed he or she could be sanctioned criminally or 
administratively. Any person who would risk identification as a 
leaker necessarily risks a felony criminal conviction, 
incarceration, and forfeiture of any Government pension. If the 
threat of a felony conviction and incarceration did not deter a 
potential leaker, it is unlikely that the threat of the loss of 
retirement benefits due to administrative action would add a 
significant, additional disincentive. And although in our view 
it will not deter potential whistleblowers who follow 
established procedures, the provision fails to deter the 
targeted group--individuals that do not follow such procedures.
    Second, any process to revoke a leaker's retirement 
benefits must include robust legal protections for the 
accused--e.g., to ensure due process. As such, Section 403 will 
only result in the substitution of one substantial and 
meaningful fact finding and adjudicative procedure for another. 
Consequently, the Administration believes that section 403 
would not provide the Executive branch with a meaningful new 
tool in prosecuting leakers.
    Third, both the initial administrative process and judicial 
appeals would carry the potential for disclosure of additional 
classified information. For example, while the Classified 
Information Procedures Act establishes procedures for the 
handling of classified information in criminal proceedings, 
there are no analogous statutory procedures for the protection 
of classified information in a civil appeal challenging an 
underlying administrative action.
    The Administration is committed to taking positive and 
meaningful steps to address the problem of leaks. This includes 
new measures to protect classified information, control access 
to classified information, and identify and prosecute leakers. 
We do not believe that section 403 will advance this effort. 
Section 403 should be removed from the bill.
Section 413, Confirmation of appointment of the Director of the 
        National Security Agency (S. 719):
    This provision requires that the Director of the National 
Security Agency be appointed by the President, by and with the 
advice and consent of the Senate. Consistent with the 
recommendations of the National Commission on Terrorist Attacks 
upon the United States, the Administration believes that if 
this provision were to become law, a critical national security 
position could remain unfilled for a significant period of 
time, adversely impacting the management and function of the 
National Security Agency. The Administration therefore objects 
to the inclusion of this provision in the FY11 Intelligence 
Authorization Act.
Section 402, Insider threat detection program (S. 719/H.R. 754):
    This provision requires the Director of National 
Intelligence (DNI) to create an automated insider threat 
detection program for the information resources of each element 
of the IC to detect unauthorized access to classified 
information. We wholeheartedly agree that we must be vigilant 
and proactive in trying to detect, mitigate, and deter insider 
threats. The Administration supports a comprehensive insider 
threat detection capability and we are currently working toward 
its implementation.
    The Administration, however, is concerned with the tight 
timelines required by this provision for the automated 
program's operational readiness (initial operating capability 
by October 1, 2012; full operating capability by October 1, 
2013). The Administration believes that fixing firm timelines 
in statute for the program's operational readiness will not 
permit sufficient flexibility in managing the program. There 
are differing capability levels across the Government, and, as 
a result, improvements to insider threat detection require 
phased implementation. Throughout implementation, moreover, the 
Administration must ensure that privacy protections are in 
place, and that access to insider threat detection information 
and activities is limited to authorized personnel for 
authorized purposes. Accordingly, the Administration strongly 
requests that the provision instead grant the DNI flexibility 
in implementation timelines of the program.
Section 412, Accounts and transfer authority for appropriations and 
        other amounts for the intelligence elements of the Department 
        of Defense (S. 719/H.R. 754):
    This provision provides the Secretary of Defense with 
transfer authority for appropriations available for 
intelligence, intelligence-related activities, and 
[intelligence-related] communications (S. 719 does not contain 
the bracketed language). The Administration welcomes this 
provision, but recommends three minor revisions: One would 
permit, rather than require, the Secretary of the Treasury to 
establish accounts for the receipt of such transferred 
appropriations; a second would not limit transfers to 
``intelligence-related communications'' appropriations, but 
permit transfers of other ``communications'' appropriations; 
and the third would authorize the Secretary of Defense to 
exercise this transfer authority ``notwithstanding any other 
provision of law,'' so it is clearly in addition to other 
transfer authorities.
Section 102, Classified schedule of authorizations (S. 719/H.R. 754):
    This provision sets a personnel limit as specified in the 
Classified Schedule of Authorizations with no provision to 
exceed the limit to meet operational needs or unforeseen 
requirements. The Administration requests that Section 102 be 
amended to authorize the employment of additional personnel up 
to five percent in excess of that established in the Classified 
Schedule of Authorizations to meet unforeseen IC operational 
needs or requirements.
Classified Annexes:
    The Administration has recently been granted access to the 
Classified Annexes (containing the Schedule of Authorizations) 
to accompany the FY 2011 Intelligence Authorization Act. Based 
on this review, we have identified two significant concerns 
that we can reference in this unclassified letter. First, the 
funding reductions and direction in the Schedule of 
Authorizations will jeopardize manpower required for essential 
IC national security operations. Second, the funding reductions 
and redirection proposed in the Classified Annexes would 
negatively impact a much-needed technical collection program 
that is meeting acquisition milestones. The IC is conducting an 
assessment of an alternative to the Administration's technical 
collection program; until that assessment is completed, any 
reduction or redirection of funds is unwarranted and could 
jeopardize the scheduled operational capability of this 
critical national security collection system.
    A separate classified letter will be transmitted which will 
more fully explain these and other Administration concerns.
    The Administration requests that the Committees address the 
concerns highlighted in this letter. We need to resolve these 
issues before the Administration can reach a determination 
regarding support for this bill. We welcome the opportunity to 
work with the Committees to address the Administration's 
concerns.
    The Office of Management and Budget has advised us that, 
from the perspective of the Administration's program, there is 
no objection to submission of this letter.
            Sincerely,
                                                  James R. Clapper.