### **CHAPTER 21—DEPARTMENT OF DEFENSE INTELLIGENCE MATTERS**

Subchapter
Sec.
I.
General Matters
421
II.
Intelligence Commercial Activities
431

#### **Editorial Notes**

#### Amendments

**1991**—Pub. L. 102–88, title V, §504(a)(1), Aug. 14, 1991, 105 Stat. 437, added items for subchapters I and II.

#### **Statutory Notes and Related Subsidiaries**

#### Military Intelligence Collection and Analysis Partnerships

Pub. L. 118–31, div. A, title XVI, §1621, Dec. 22, 2023, 137 Stat. 590, provided that:

"(a) Use of Funds Other Than Appropriated Funds.—

"(1) In general.—Subject to paragraph (2), the Director of the Defense Intelligence Agency, in coordination with the Director of National Intelligence, may accept and expend funds from one or more foreign partners for the foreign partner (or partners, as the case may be) to share with the Defense Intelligence Agency the expenses of joint and combined military intelligence collection and analysis activities.

"(2) Limitations.—

"(A) Previously denied funds.—Funds accepted under this section may not be expended, in whole or in part, by or for the benefit of the Defense Intelligence Agency for any purpose for which Congress has previously denied funds.

"(B) Joint benefit.—The authority under paragraph (1) may not be used to acquire items or services for the sole benefit of the United States.

"(b) Annual Report.—Not later than March 1, 2025, and annually thereafter for four years, the Director of the Defense Intelligence Agency shall submit to the appropriate congressional committees a report on any funds accepted or expended under this section during the preceding calendar year, including an identification of the foreign partner or partners involved and a description of the purpose of such funds.

"(c) Termination.—The authority to accept and expend funds from a foreign partner pursuant to this section shall terminate on December 31, 2028.

"(d) Appropriate Congressional Committees Defined.—In this section, the term 'appropriate congressional committees' means—

"(1) the Committee on Armed Services, the Committee on Appropriations, and the Select Committee on Intelligence of the Senate; and

"(2) the Committee on Armed Services, the Committee on Appropriations, and the Permanent Select Committee on Intelligence of the House of Representatives."

#### Incorporation of Controlled Unclassified Information Guidance Into Program Classification Guides and Program Protection Plans

Pub. L. 117–263, div. A, title VIII, §884, Dec. 23, 2022, 136 Stat. 2746, provided that:

"(a) Updates Required.—

"(1) In general.—The Secretary of Defense shall, acting through the Under Secretary of Defense for Intelligence and Security and the Under Secretary of Defense for Research and Engineering, ensure that all program classification guides (for classified programs) and all program protection plans (for unclassified programs) include guidance for the proper marking for controlled unclassified information at their next regularly scheduled update.

"(2) Elements.—Guidance under paragraph (1) shall include the following:

"(A) A requirement to use document portion markings for controlled unclassified information.

"(B) A process to ensure controlled unclassified information document portion markings are used properly and consistently.

"(b) Monitoring of Progress.—In tracking the progress in carrying out subsection (a), the Under Secretary of Defense for Intelligence and Security and the Under Secretary of Defense for Research and Engineering shall implement a process for monitoring progress that includes the following:

"(1) Tracking of all program classification guides and program protection plans so they include document portion marking for controlled unclassified information, and the dates when controlled unclassified information guidance updates are completed.

"(2) Updated training in order to ensure that all government and contractor personnel using the guides described in subsection (a)(1) receive instruction, as well as periodic spot checks, to ensure that training is sufficient and properly implemented to ensure consistent application of document portion marking guidance.

"(3) A process for feedback to ensure that any identified gaps or lessons learned are incorporated into guidance and training instructions.

"(c) Required Completion.—The Secretary shall ensure that the updates required by subsection (a) are completed before January 1, 2029."

#### Enhanced Indications and Warning for Deterrence and Dissuasion

Pub. L. 117–263, div. A, title XII, §1256, Dec. 23, 2022, 136 Stat. 2851, provided that:

"(a) Establishment of Program for Enhanced Indications and Warning.—

"(1) Authority.—The Director of the Defense Intelligence Agency may establish a program to increase warning time of potential aggression by adversary nation states, focusing especially on the United States Indo-Pacific Command and United States European Command areas of operations.

"(2) Designation.—If the Director establishes the program under paragraph (1), the program shall be known as the 'Program for Enhanced Indications and Warning' (in this section referred to as the 'Program').

"(3) Purpose.—The purpose of the Program that may be established under paragraph (1) is to gain increased warning time to provide time for the Department of Defense to mount deterrence and dissuasion actions to persuade adversaries to refrain from aggression, including through potential revelations or demonstrations of capabilities and actions to create doubt in the minds of adversary leaders regarding the prospects for military success.

"(b) Head of Program.—

"(1) Appointment.—If the Director establishes the Program, the Director shall appoint a defense intelligence officer to serve as the mission manager for the Program.

"(2) Designation.—The mission manager for the Program shall be known as the 'Program Manager for Enhanced Indications and Warning' (in this section referred to as the 'Program Manager').

"(c) Sources of Information and Analysis.—If the Director establishes the Program, the Program Manager shall ensure that the Program makes use of all available sources of information, from public, commercial, and classified sources across the intelligence community and the Department of Defense, and advanced analytics, including artificial intelligence, to establish a system capable of discerning deviations from normal patterns of behavior and activity that may indicate preparations for military actions.

"(d) Integration With Other Programs.—

"(1) Support.—If the Director establishes the Program, the Program shall be supported, as appropriate, by the Chief Digital and Artificial Intelligence Officer, the Maven project, by capabilities sponsored by the Office of the Under Secretary of Defense for Intelligence and Security, and programs already underway within the Defense Intelligence Agency.

"(2) Agreements.—If the Director establishes the Program, the Director shall seek to engage in agreements to integrate information and capabilities from other components of the intelligence community to facilitate the purpose of the Program.

"(e) Briefings.—If the Director establishes the Program, not later than 180 days after the date of the enactment of this Act [Dec. 23, 2022] and not less frequently than once each year thereafter through 2027, the Program Manager shall provide the appropriate committees of Congress a briefing on the status of the activities of the Program.

"(f) Definitions.—In this section:

"(1) The term 'appropriate committees of Congress' means—

"(A) the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives]; and

"(B) the congressional intelligence committees (as defined in section 3 of the National Security Act of 1947 (50 U.S.C. 3003)).

"(2) The term 'intelligence community' has the meaning given such term in section 3 of the National Security Act of 1947 (50 U.S.C. 3003)."

#### Notification of Certain Threats to United States Armed Forces by Foreign Governments

Pub. L. 117–81, div. A, title XVI, §1621, Dec. 27, 2021, 135 Stat. 2084, provided that:

"(a) Determination That Foreign Government Intends to Cause the Death of or Serious Bodily Injury to Members of the Armed Forces.—The Secretary of Defense shall carry out the notification requirement under subsection (b) whenever the Secretary, in consultation with the Director of National Intelligence, determines with high confidence that, on or after the date of the enactment of this Act [Dec. 27, 2021], an official of a foreign government has taken a substantial step that is intended to cause the death of, or serious bodily injury to, any member of the United States Armed Forces, whether through direct means or indirect means, including through a promise or agreement by the foreign government to pay anything of pecuniary value to an individual or organization in exchange for causing such death or serious bodily injury.

"(b) Notice to Congress.—

"(1) Notification.—Except as provided by paragraph (2), not later than 14 days after making a determination under subsection (a), the Secretary shall notify the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives] of such determination. Such notification shall include, at a minimum, the following:

"(A) A description of the nature and extent of the effort by the foreign government to target members of the United States Armed Forces.

"(B) An assessment of what specific officials, agents, entities, and departments within the foreign government authorized the effort.

"(C) An assessment of the motivations of the foreign government for undertaking such an effort.

"(D) An assessment of whether the effort of the foreign government was a substantial factor in the death or serious bodily injury of any member of the United States Armed Forces.

"(E) Any other information the Secretary determines appropriate.

"(2) Waiver.—On a case-by-case basis, the Secretary may waive the notification requirement under paragraph (1) if the Secretary—

"(A) determines that the waiver is in the national security interests of the United States; and

"(B) submits to the congressional defense committees a written justification of such determination.

"(c) Definitions.—In this section:

"(1) The term 'anything of pecuniary value' has the meaning given that term in section 1958(b)(1) of title 18, United States Code.

"(2) The term 'determines with high confidence'—

"(A) means that the official making the determination—

"(i) has concluded that the judgments in the determination are based on sound analytic argumentation and high-quality, consistent reporting from multiple sources, including through clandestinely obtained documents, clandestine and open source reporting, and in-depth expertise;

"(ii) with respect to such judgments, has concluded that the intelligence community has few intelligence gaps and few assumptions underlying the analytic line and that the intelligence community has concluded that the potential for deception is low; and

"(iii) has examined long-standing analytic judgments and considered alternatives in making the determination; but

"(B) does not mean that the official making the determination has concluded that the judgments in the determination are fact or certainty.

"(3) The term 'direct means' means without the use of intermediaries.

"(4) The term 'foreign government' means the government of a foreign country with which the United States is at peace.

"(5) The term 'indirect means' means through, or with the assistance of, intermediaries."

#### Strategy and Plan To Implement Certain Defense Intelligence Reforms

Pub. L. 117–81, div. A, title XVI, §1622, Dec. 27, 2021, 135 Stat. 2086, provided that:

"(a) Strategy and Plan.—The Secretary of Defense, in coordination with the Director of National Intelligence, shall develop and implement a strategy and plan to enable the Defense Intelligence Enterprise to more effectively fulfill the intelligence and information requirements of the commanders of the combatant commands with respect to efforts by the combatant commands to expose and counter foreign malign influence, coercion, and subversion activities undertaken by, or at the direction, on behalf, or with substantial support of the governments of, covered foreign countries.

"(b) Matters Included in Plan.—The plan under subsection (a) shall include the following:

"(1) A plan to improve policies and procedures of the Defense Intelligence Enterprise to assemble and release facts about the foreign malign influence, coercion, and subversion activities of a covered foreign country described in such subsection in a timely way and in forms that allow for greater distribution and release.

"(2) A plan to develop and publish validated priority intelligence requirements of the commanders of the combatant commands.

"(3) A plan to better leverage open-source and commercially available information and independent analyses to support the efforts by the combatant commands described in such subsection.

"(4) A review by each element of the Defense Intelligence Enterprise of the approaches used by that element—

"(A) with respect to intelligence that has not been processed or analyzed, to separate out data from the sources and methods by which the data is obtained (commonly known as 'tearlining'); and

"(B) with respect to finished intelligence products that relate to foreign malign influence, coercion, and subversion activities of a covered foreign country described in such subsection, to downgrade the classification level of the product.

"(6) [(5)] An identification of any additional resources or legislative authority necessary to better meet the intelligence and information requirements described in such subsection.

"(7) [(6)] An assignment of responsibilities and timelines for the implementation of the plans described in paragraphs (1), (2), and (3).

"(8) [(7)] Any other matters the Secretary determines relevant.

"(c) Submission.—Not later than 90 days after the date of the enactment of this Act [Dec. 27, 2021], the Secretary of Defense, in coordination with the Director of National Intelligence, shall submit to the appropriate congressional committees and the Comptroller General of the United States the plan developed under subsection (a).

"(d) Comptroller General Review.—

"(1) Requirement.—The Comptroller General shall conduct a review of—

"(A) the plan submitted under subsection (c); and

"(B) the activities and future plans of the Defense Intelligence Enterprise for meeting the intelligence and information requirements described in subsection (a).

"(2) Elements.—The review under paragraph (1) shall include the following:

"(A) The extent to which the plan submitted under subsection (c) includes the elements identified in subsection (b).

"(B) The extent to which the Defense Intelligence Enterprise has clearly assigned roles, responsibilities, and processes for fulfilling the intelligence and information requirements described in subsection (a).

"(C) The extent to which the Defense Intelligence Enterprise is planning to obtain additional capabilities and resources to improve the quality and timeliness of intelligence and information provided to the commanders of the combatant commands to aid in the efforts described in subsection (a).

"(D) The extent to which the Defense Intelligence Enterprise is identifying, obtaining, and using commercial and publicly available information to aid in such efforts.

"(E) Any other related issues that the Comptroller General determines appropriate.

"(3) Briefing and report.—Not later than 120 days after the date on which the Comptroller General receives the plan under subsection (c), the Comptroller General shall provide to the appropriate congressional committees a briefing on any initial findings about the plan. After such briefing, the Comptroller General shall submit to the committees a report on the plan at a date mutually agreed upon by the Comptroller General and the committees.

"(e) Congressional Briefing.—Not later than 90 days after the date of the enactment of this Act [Dec. 27, 2021], and annually thereafter through December 31, 2026, the Secretary, in coordination with the Director of National Intelligence, shall provide to the appropriate congressional committees a briefing on the strategy and plan under subsection (a).

"(f) Definitions.—In this section:

"(1) The term 'appropriate congressional committees' means the following:

"(A) The congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives].

"(B) The Permanent Select Committee on Intelligence of the House of Representatives and the Select Committee on Intelligence of the Senate.

"(2) The term 'covered foreign country' means any of the following:

"(A) The People's Republic of China.

"(B) The Russian Federation.

"(C) The Islamic Republic of Iran.

"(D) The Democratic People's Republic of Korea.

"(E) Any other foreign country the Secretary of Defense and the Director of National Intelligence determine appropriate.

"(3) The term 'Defense Intelligence Enterprise' has the meaning given that term in section 426(b)(4) of title 10, United States Code."

#### Limitation on Use of Funds

Pub. L. 115–31, div. C, title VIII, §8037, May 5, 2017, 131 Stat. 255, provided that: "Notwithstanding any other provision of law, funds made available in this Act [div. C of Pub. L. 115–31, see Tables for classification] and hereafter for the Defense Intelligence Agency may be used for the design, development, and deployment of General Defense Intelligence Program intelligence communications and intelligence information systems for the Services, the Unified and Specified Commands, and the component commands."

#### Department of Defense Intelligence Priorities

Pub. L. 113–66, div. A, title IX, §922, Dec. 26, 2013, 127 Stat. 828, provided that: "Not later than 180 days after the date of the enactment of this Act [Dec. 26, 2013], the Secretary of Defense shall—

"(1) establish a written policy governing the internal coordination and prioritization of intelligence priorities of the Office of the Secretary of Defense, the Joint Staff, the combatant commands, and the military departments to improve identification of the intelligence needs of the Department of Defense;

"(2) identify any significant intelligence gaps of the Office of the Secretary of Defense, the Joint Staff, the combatant commands, and the military departments; and

"(3) provide to the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives], the Permanent Select Committee on Intelligence of the House of Representatives, and the Select Committee on Intelligence of the Senate a briefing on the policy established under paragraph (1) and the gaps identified under paragraph (2)."

#### Defense Clandestine Service

Pub. L. 113–66, div. A, title IX, §923, Dec. 26, 2013, 127 Stat. 828, as amended by Pub. L. 115–91, div. A, title X, §1051(s)(2), Dec. 12, 2017, 131 Stat. 1566, provided that:

"(a) Certification Required.—Not more than 50 percent of the funds authorized to be appropriated by this Act [see Tables for classification] or otherwise available to the Department of Defense for the Defense Clandestine Service for fiscal year 2014 may be obligated or expended for the Defense Clandestine Service until such time as the Secretary of Defense certifies to the covered congressional committees that—

"(1) the Defense Clandestine Service is designed primarily to—

"(A) fulfill priorities of the Department of Defense that are unique to the Department of Defense or otherwise unmet; and

"(B) provide unique capabilities to the intelligence community (as defined in section 3(4) of the National Security Act of 1947 (50 U.S.C. 3003(4))); and

"(2) the Secretary of Defense has designed metrics that will be used to ensure that the Defense Clandestine Service is employed as described in paragraph (1).

"(b) Notification of Future Changes to Design.—Following the submittal of the certification referred to in subsection (a), in the event that any significant change is made to the Defense Clandestine Service, the Secretary shall promptly notify the covered congressional committees of the nature of such change.

"(c) Quarterly Briefings.—The Secretary of Defense shall quarterly provide to the covered congressional committees a briefing on the deployments and collection activities of personnel of the Defense Clandestine Service.

"(d) Covered Congressional Committees Defined.—In this section, the term 'covered congressional committees' means the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives], the Permanent Select Committee on Intelligence of the House of Representatives, and the Select Committee on Intelligence of the Senate."