99–010 

Calendar No. 25 

112TH CONGRESS REPORT " ! SENATE 1st Session 112–12 

INTELLIGENCE AUTHORIZATION ACT FOR FISCAL YEAR 

2011 

APRIL 4, 2011.—Ordered to be printed 

Mrs. FEINSTEIN, from the Committee on Intelligence, 

submitted the following 

R E P O R T 

together with 

ADDITIONAL AND MINORITY VIEWS 

[To accompany S. 719] 

The Select Committee on Intelligence, having considered an 

original bill (S. 719) to authorize appropriations for fiscal year 2011 

for intelligence and intelligence-related activities of the United 

States Government, the Community Management Account, and the 

Central Intelligence Agency Retirement and Disability System, and 

for other purposes, reports favorably thereon and recommends that 

the bill do pass. 

CLASSIFIED ANNEX TO THE COMMITTEE REPORT

The classified nature of United States intelligence activities precludes disclosure by the Committee of details of its budgetary recommendations. The Committee has prepared a classified annex to 

this report that contains a classified Schedule of Authorizations. 

The 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). 


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SECTION-BY-SECTION ANALYSIS AND EXPLANATION

The following is a section-by-section analysis and explanation of 

the Intelligence Authorization Act for Fiscal Year 2011 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 2011. 

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 (expressed as full-time 

equivalent positions) for fiscal year 2011 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. Intelligence Community Management Account 

Section 103 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 2011. 

Subsection (a) authorizes appropriations of $649,732,000 for fiscal year 2011 for the activities of the ICMA. Subsection (b) authorizes 648 full-time equivalent personnel for elements within the 

ICMA for fiscal year 2011 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, 2012. 

Title II—Central Intelligence Agency Retirement and Disability 

System 

Section 201. Authorization of appropriations 

Section 201 authorizes appropriations in the amount of 

$292,000,000 for fiscal year 2011 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 


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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 au- thorized 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 detail of other personnel 

Section 303 makes a correction to Section 113A of the National 

Security Act of 1947 (50 U.S.C. 404h–1), which was amended by 

Section 302 of the Intelligence Authorization Act for Fiscal Year 

2010 (Pub. L. No. 111–259, October 7, 2010). As enacted, this section limited to two years the length of time that United States Government personnel may be detailed to the staff of an element of the 

Intelligence Community funded through the National Intelligence 

Program from another element of the Intelligence Community or 

from another element of the United States Government on a reimbursable basis or a non-reimbursable basis. It was intended to extend the period of time an employee could be detailed on a non-reimbursable detail from one year to two years. The provision was 

not intended to limit the time period for reimbursable details, 

which had not been previously time-limited. Section 303 restates 

Section 113A of the National Security Act without the limitation on 

reimbursable details and clarifies that the section does not limit 

any other source of authority for reimbursable or non-reimbursable 

details. 

Title IV—Matters Relating to Elements of the Intelligence 

Community 

SUBTITLE A—OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE

Section 401. Schedule and requirements for the National Counterintelligence Strategy 

Section 401 amends Section 904(d)(2) of the Counterintelligence Enhancement Act of 2002 (50 U.S.C. 402c(d)(2)) to require that the 

National Counterintelligence Strategy be revised or updated at 

least every three years and that it align with the strategy and policies of the Director of National Intelligence. The Committee does not consider the current requirement to 

produce this multi-year strategy on an annual basis to be an efficient or effective use of limited resources. Section 401 will enable, 

whenever possible, the Strategy to be produced in tandem with 

strategic planning documents such as the National Intelligence 

Strategy. 

Section 402. Insider Threat Detection Program 

Section 402 requires the Director of National Intelligence, not 

later than October 1, 2012, to establish an initial operating capability for an effective automated insider threat detection program 

for the information resources in each element of the Intelligence 

Community in order to detect unauthorized access to, or use or 


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transmission of, classified information. Section 402 requires that 

the program be at full operating capability by October 1, 2013. 

Not later than December 1, 2011, the Director of National Intelligence shall submit to the congressional intelligence committees a 

report on the resources required to implement the program and 

any other issues the Director considers appropriate to include in 

the report. 

Section 403. Unauthorized disclosure of classified information 

The Committee has had long-standing concerns about unauthorized disclosures of classified information. A particular source of 

frustration has been that leakers are rarely seen to suffer consequences for leaking classified information. In order to better supplement criminal prosecution remedies for unlawful disclosures, the 

Committee has urged the Executive Branch to make fuller use of 

administrative sanctions. Up to now, those sanctions have consisted of security clearance revocation, suspension, or termination 

as a means of deterring and punishing leakers. Unfortunately, 

these sanctions are not generally available for use against a key 

source of leaks, former Intelligence Community employees. 

The purpose of Section 403 is to provide an additional administrative option for the Intelligence Community to deter leakers who 

violate the prepublication review requirements of their non-disclosure agreements. This option may require individuals to surrender 

their current and future federal government pension benefits if 

they knowingly violate the prepublication review requirements in 

their non-disclosure agreements in a manner that discloses classified information to an unauthorized person or entity. 

Section 403 authorizes the DNI to publish regulations, in coordination with the head of each element of the Intelligence Community, that require each Intelligence Community employee to sign a 

written non-disclosure agreement and set forth the administrative 

procedures applicable when an employee violates his non-disclosure 

agreement. The provision is designed to be flexible and allow the 

DNI and agency heads to tailor regulations and procedures that 

will work best for their respective agencies, while providing due 

process for an employee who has violated the terms of the 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 403 shall be 

consistent with any procedures established by Executive order or 

regulation under section 801of the National Security Act. 

Under this provision, 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 plan, 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 

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ployee 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 403 provides a mechanism for the Director of National 

Intelligence to enforce the contractual obligations contained in a 

nondisclosure agreement with respect to prepublication review requirements, for both current and future 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 403 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 current and 

future federal government pension benefits if it is determined, in 

accordance with the applicable administrative procedures required 

by subsection (a), 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 403, the term ‘‘federal government 

pension plan’’ 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. 

SUBTITLE B—OTHER ELEMENTS

Section 411. Defense Intelligence Agency counterintelligence and expenditures 

Section 411 amends Section 105 of the National Security Act of 

1947, on the responsibilities of Intelligence Community elements in 

the Department of Defense, to make clear that the responsibilities 

of the DIA include counterintelligence as well as human intelligence activities. This confirms the existing responsibilities of the 

agency. 

Section 411 also provides authority for the Director of the DIA 

to account for expenditures for human intelligence and counterintelligence activities of a confidential, extraordinary, or emergency 


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nature, in a manner similar to that available to the CIA, which 

does not reveal sensitive information. Section 411 limits this authority to no more than five percent of the amounts available to the 

DIA Director for human intelligence and counterintelligence activities unless the Director notifies the congressional intelligence committees thirty days in advance of the intent to exceed this limit. In 

addition, the Director must report annually to the congressional intelligence committees on the use of this expenditure authority. It 

is the intention of the Committee that the DIA Director shall carefully monitor the use of this authority to ensure that the flexibility 

it permits is used only in furtherance of the counterintelligence and 

human intelligence responsibilities of the DIA. 

A similar provision, without the five percent limitation, was included in S. 1494, the Intelligence Authorization Act for Fiscal 

Year 2010, reported by the Committee on July 22, 2009. S. 1494 

passed the Senate by unanimous consent on September 16, 2009. 

Section 412. Accounts and transfer authority for appropriations and 

other amounts for the intelligence elements of the Department 

of Defense 

Section 412 authorizes the Secretary of Defense to transfer defense appropriations into an account or accounts established by the 

Secretary of the Treasury for receipt of such funds. These accounts 

may receive transfers and reimbursement from transactions between the defense intelligence elements and other entities, and the 

Director of National Intelligence may also transfer funds into these 

accounts. Appropriations transferred pursuant to this section shall 

remain available for the same time period, and for the same purposes, as the appropriations from which transferred. This should 

improve auditing of defense intelligence appropriations. 

Section 413. Confirmation of appointment of the Director of the National Security Agency 

Section 413 amends the National Security Agency Act of 1959 to 

provide that the Director of the National Security Agency (NSA) 

shall be appointed by the President by and with the advice and 

consent of the Senate. Under present law and practice, the President appoints the Director of the NSA. The appointment has been 

indirectly subject to confirmation through Senate confirmation of 

the military officers who have been promoted into the position. Section 413 will make explicit that the filling of this key position in 

the Intelligence Community should be subject to confirmation. 

The Committee has had a long-standing interest in ensuring 

Senate confirmation of the heads of the NSA, the National Reconnaissance Office, and the National Geospatial-Intelligence Agency. 

The Committee moves forward on the requirement for Senate confirmation of the Director of NSA in this Act in light of NSA’s critical role in the national intelligence mission, particularly with respect to activities which may raise privacy concerns. 

Through advice and consent, the Senate can enable the Congress 

to fulfill more completely its responsibility for providing oversight 

to the intelligence activities of the United States Government and 

ensure the responsibilities and foreign intelligence activities of the 

NSA receive appropriate attention. 


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The requirement for confirmation of the Director of NSA will not 

increase the number of Senate-confirmed officials. The Director of 

the NSA is now also the Commander of the U.S. Cyber Command 

and therefore subject to confirmation. Accordingly, Section 413 does 

not alter the role of the Committee on Armed Services in reviewing 

and approving the promotion or assignment of military officers. 

Through a sequential referral the Armed Services and Intelligence 

Committees will assure that all aspects of the appointment, both 

with respect to the Cyber Command and intelligence collection, will 

be considered. 

Section 413(c) makes clear that the requirement for Senate confirmation applies prospectively. Therefore, the Director of the NSA 

on the date of enactment will not be affected by this section, which 

will apply initially to the appointment and confirmation of his successor. 

COMMITTEE ACTION

Vote to report the committee bill 

On March 15, 2011, a quorum for reporting being present, the 

Committee voted to report the bill, by a vote of 12 ayes and 3 noes. 

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—no; Senator 

Udall—no; 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. 

On March 18, 2011, acting on the basis of discussion during the 

mark-up, Chairman Feinstein and Vice Chairman Chambliss sent 

a letter to the Director of National Intelligence to request his views 

on Section 403 of the bill. The Committee has not received a formal 

response to that letter as of the filing of this report. 

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 section 11 of rule XXVI of the Standing Rules of the 

Senate, the Committee transmitted this bill to the Congressional 

Budget Office (CBO) on March 15, 2011, and requested it to conduct an estimate of the costs incurred in carrying out its provisions. On March 31, 2011, the CBO provided a cost estimate on the 

unclassified portions of the bill (posted on its website at http:// 

cbo.gov/ftpdocs/121xx/doc12123/Senate%20Intelligence.doc.pdf) 

and concluded that, while the bill contains direct spending that 

makes the pay-as-you-go procedures applicable, the effects of that 


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spending would not be significant. The CBO also noted that the bill 

contains no intergovernmental or private-sector mandates as defined in the Unfunded Mandates Reform Act and would impose no 

costs on state, local, or tribal governments. 

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. 


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ADDITIONAL VIEWS OF SENATOR MARK R. WARNER 

As a new member of the Senate Select Committee on Intelligence 

I am proud to represent thousands of current and former members 

of the intelligence agencies who live, work, or retire in Virginia. Because they are not able to discuss their very important work with 

friends and even family members, I will be a strong advocate for 

them in Congress. 

I am also committed to providing robust oversight of the United 

States Intelligence Community, which is charged with gathering, 

analyzing, and acting upon intelligence that keeps our nation safe. 

There is perhaps no more important function of the U.S. government than providing policymakers with unbiased facts and assessments that guide their decisions in matters of war and peace. 

The fact that this important mission must be done in secret 

makes it all the more important that the people of the United 

States have the confidence that it is being carried out—always— 

in keeping with this nation’s laws, and in line with the principles 

and expectations of Americans. Passing an annual authorization 

bill that informs the intelligence agencies how they may spend appropriated funds is an important way for the Senate Intelligence 

Committee to play a key role in this necessary oversight. I am honored to have been named to this position of responsibility. 

MARK R. WARNER. 


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MINORITY VIEWS OF SENATOR WYDEN 

This intelligence authorization bill is the product of substantial 

labor by both Chairman Feinstein and Vice Chairman Chambliss, 

as well as their respective staff, and I commend them both for their 

efforts and for the bipartisan manner in which they have worked 

to put it together. It has now been almost seven years since an intelligence authorization bill was signed into law during the fiscal 

year it was intended to cover, and although the 2011 fiscal year is 

now approximately halfway over, Congress still has an opportunity 

to provide useful guidance and direction regarding intelligence 

spending for this fiscal year. 

This bill also contains several worthwhile legislative provisions, 

including one that would make the Director of the National Security Agency a Senate-confirmed position. I support much of what 

these provisions are intended to achieve, but I have very significant 

concerns about one provision in this bill, and that is why I voted 

against it. 

Section 403 of this bill would authorize 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 the pension benefits of an 

intelligence agency employee (or a former employee) if they ‘‘determine’’ that the employee has knowingly violated his or her nondisclosure agreement and disclosed classified information. 

I share my colleagues’ frustration regarding unauthorized disclosures, or ‘‘leaks,’’ of classified information. Leaks are a problem 

that has plagued intelligence agencies throughout modern history—they can undermine intelligence operations, jeopardize intelligence sources and methods, and have a terrible impact on the 

lives of covert agents who are publicly exposed. Every member of 

Congress, myself included, wants to find new ways to identify and 

appropriately punish individuals who illegally disclose classified information. I personally spent four years working on legislation to 

increase the criminal penalty for people who are convicted of deliberately exposing covert agents. 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 last year. 

I agree that increasing penalties for particular offenses can sometimes have a deterrent effect on those who might otherwise be 

tempted to leak, so I support the creation of new consequences for 

individuals who have been convicted of illegally divulging classified 

information. But when it comes to leakers, the biggest challenge is 

not determining how to punish them as much as it is identifying 

who they are. 

Given these challenges, my concern is that giving intelligence 

agency heads the authority to take away the pensions of individuals who haven’t been formally convicted of any wrongdoing could 


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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. 

Section 403—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. But 

as I noted in the committee markup of this bill, neither the DNI 

nor any of the intelligence agency heads have asked Congress for 

this authority. Moreover, as of this writing none of the intelligence 

agencies have officially told Congress how they would interpret this 

language. 

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 403 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 403 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; 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, with a corresponding impact on their family members and dependents. 

I am also especially troubled that section 403 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 403 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 think it was a mistake for the Intelligence 

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cies’ views on whether or not they believe that section 403 would 

impact 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 403, 

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 am somewhat perplexed by the fact that section 403 

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 will often 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 on the Senate floor and I do not intend 

to support it unless significant reforms are made. All of my colleagues and I agree that illegal leaks are 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. 

fi 


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