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[Senate Report 112-43]
[From the U.S. Government Publishing Office]

                                                       Calendar No. 124
112th Congress                                                   Report
                                 SENATE
 1st Session                                                     112-43

======================================================================
 
          INTELLIGENCE AUTHORIZATION ACT FOR FISCAL YEAR 2012

                                _______
                                

                 August 1, 2011.--Ordered to be printed

                                _______
                                

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

                              R E P O R T

                             together with

                            ADDITIONAL VIEWS

                         [To accompany S. 1458]

    The Select Committee on Intelligence, having considered an 
original bill (S. 1458) to authorize appropriations for fiscal 
year 2012 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

    On February 14, 2011, 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 2012 is $55 
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 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 2012 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 2012.

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 2012 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 2012 in excess 
of the number of authorized full-time equivalent positions by 
an amount not exceeding 3 percent (rather than the 5 percent 
leeway requested by the Administration) 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) provides additional flexibility when the 
heads of IC elements determine that work currently performed by 
contract personnel should be performed by government employees. 
It does so by authorizing the DNI to authorize employment of 
additional full-time equivalent personnel in a number equal to 
the number of full-time equivalent contract personnel currently 
performing that work. Any exercise of this authority should be 
implemented in accordance with a plan that includes adequate 
support for personnel. Exercise of this authority should result 
in an actual reduction of the number of contract personnel and 
not a shift of resources to hire other contract personnel.
    The DNI must report the decision to allow an IC element to 
exceed the personnel ceiling or to convert contract personnel 
under Section 103(a) and (b) in advance to the congressional 
intelligence committees.
    During consideration of the fiscal year 2008 request, the 
congressional intelligence committees learned that practices 
within different elements of the Intelligence Community on the 
counting of personnel with respect to legislatively-fixed 
ceilings were inconsistent, and included not counting certain 
personnel at all against personnel ceilings. The committees 
requested that the IC Chief Human Capital Officer (CHCO) ensure 
that by the beginning of fiscal year 2010 there would be a 
uniform and accurate method of counting all IC employees under 
a system of personnel levels expressed as full-time 
equivalents. The committees also expressed their view that the 
DNI express the personnel levels for civilian employees of the 
Intelligence Community as full-time equivalent positions in the 
congressional budget justifications for fiscal year 2010. The 
DNI has done so. In addition, the DNI has issued a policy to 
ensure a uniform method for counting IC employees. Subsection 
(c) confirms in statute the obligation of the DNI to establish 
these guidelines.

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 2012.
    Subsection (a) authorizes appropriations of $585,187,000 
for fiscal year 2012 for the activities of the ICMA. Subsection 
(b) authorizes 800 full-time equivalent personnel for elements 
within the ICMA for fiscal year 2012 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, 2013.

 TITLE II--CENTRAL INTELLIGENCE AGENCY RETIREMENT AND DISABILITY SYSTEM

Section 201. Authorization of appropriations

    Section 201 authorizes appropriations in the amount of 
$513,700,000 for fiscal year 2012 for the Central Intelligence 
Agency (CIA) Retirement and Disability Fund. For fiscal year 
2011, Congress authorized $292,000,000. While that level was 
consistent with prior authorizations, it did not fully fund, as 
prior authorizations had not fully funded, the obligations of 
the Fund. The fiscal year 2012 increase is based on the 
Administration's determination, which the Committee supports, 
that the obligations of this retirement and disability system 
should be fully funded.

           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. Enhancement of authority for flexible personnel management 
        among the elements of the intelligence community

    Section 303 adds a subsection to Section 102A of the 
National Security Act of 1947 to promote the ability to manage 
all the elements of the IC as a single cohesive community. The 
new Subsection 102A(v) enables the DNI, with the concurrence of 
the head of the covered department concerned and in 
coordination with the Director of the Office of Personnel 
Management, to convert competitive service positions within an 
IC element of the covered department to excepted positions and 
to establish new positions in the excepted service within an IC 
element of a covered department. Under Section 303, an 
incumbent occupying a position on the date of enactment 
selected to be converted to the excepted service shall have the 
right to refuse the conversion. Once such individual no longer 
occupies the position, the position may be converted.
    Because of their unique intelligence, investigative and 
national security missions, most IC elements are in the 
excepted civil service. However, civilian employees in several 
smaller IC elements are still covered under competitive service 
rules. The ability to convert those positions to the excepted 
service will enable the IC to maintain a system throughout the 
Intelligence Community that is responsive to the needs of the 
IC both for secrecy and the ability to quickly respond to 
personnel requirements. The DNI has requested a similar 
authority in the past. Under Section 303, the covered 
departments are the Department of Energy, the Department of 
Homeland Security, the Department of State, and the Department 
of the Treasury.
    Although new positions in the excepted service may be 
created within an element of the Intelligence Community within 
the covered departments under this authority, the personnel 
ceilings referred to in Section 102(a) still apply to the 
number of personnel in an element. The Committee does not 
intend for this conversion authority to be used to increase the 
number of full-time equivalent personnel in an intelligence 
element above the applicable personnel ceilings.

Section 304. Cost estimates

    Section 304 amends Section 506A of the National Security 
Act of 1947 to require that independent cost estimates include 
all costs associated with a major system acquisition even when 
a service or capability to deliver end-to-end functionality 
will be provided by another Intelligence Community agency or 
element. This additional requirement in the preparation of the 
independent cost estimate will assist Congress and the 
Executive Branch in evaluating the full cost of an acquisition, 
including the costs to process, exploit, disseminate, and store 
the information such major system collects. The amendments made 
by Section 304 become effective 180 days after enactment.

Section 305. Preparation of nuclear proliferation assessment statements

    As set forth in the Atomic Energy Act, the United States 
may enter into a Civilian Nuclear Agreement (or ``123 
Agreement'') with another nation or multinational organization. 
After negotiating the terms of the 123 Agreement, the 
Administration submits the terms to Congress for review along 
with a Nuclear Proliferation Assessment Statement (NPAS). Under 
current law, the NPAS is drafted by the State Department, in 
consultation with the Director of Central Intelligence; the Act 
has not been amended to reflect the establishment of the 
Director of National Intelligence. In multiple reports, the 
Government Accountability Office has identified various 
problems with this process, including insufficient time for 
consultation with the Intelligence Community, a lack of 
adequate formal interagency guidance for NPAS development, and 
ambiguity as to whether IC comments were fully incorporated 
into the final NPAS. Section 305 modifies the NPAS process in 
an effort to eliminate or mitigate these problems.
    Currently, each NPAS must analyze the consistency of the 
123 Agreement with other requirements of the Atomic Energy Act 
and the adequacy of the safeguards and peaceful use assurances 
that ensure the technology will not be used for military or 
nuclear explosive purposes. Section 305 provides a new role for 
the DNI in the NPAS process to ensure that Intelligence 
Community concerns are more fully incorporated into each 
statement. Section 305 requires the Secretary of State and the 
DNI to provide an unclassified NPAS to the President. The first 
two sections of the NPAS, which mirror the current 
requirements, shall be prepared by the Secretary of State, in 
consultation with the Director of National Intelligence. A 
newly-required third section shall be prepared by the DNI, in 
consultation with the Secretary of State, and provide a 
comprehensive analysis of the country's export control system 
with respect to nuclear-related matters. A classified annex 
shall accompany the NPAS. The NPAS and its classified annex 
shall be provided to the congressional intelligence committees 
as well as the congressional foreign relations committees.

Section 306. Detainees held at United States Naval Station, Guantanamo 
        Bay, Cuba

    The Committee believes that, given the intelligence and 
security issues that may relate to a transfer of a detainee 
from Guantanamo, additional time is needed for Congress to 
assess the information provided pursuant to the current 
congressional notification requirements and ensure that any 
concerns are addressed prior to transfer. Moreover, as the 
recidivism rate among former Guantanamo detainees has increased 
over time, it is important for Congress to understand the terms 
of any assurances provided by the receiving country with 
respect to monitoring the transferred detainee. Therefore, 
Section 306 modifies the notification requirements in Section 
552(e) of the Department of Homeland Security Appropriations, 
2010 (Public Law 111-83) and Section 428(e) of the Department 
of Interior, Environment and Related Agencies Appropriations, 
2010 (Public Law 111-88) to require 30 days notice to Congress, 
rather than 15 days, of a transfer of a detainee to another 
country. In addition, the notification shall include the terms 
of any monitoring assurance provided by the receiving country 
and identify the agency or department of the United States that 
is to ensure any agreement between the United States and the 
receiving country is carried out.

Section 307. Updates of intelligence relating to terrorism recidivism 
        of detainees held at United States Naval Station, Guantanamo 
        Bay, Cuba

    As the recidivism rate among former Guantanamo Bay 
detainees has increased over time, the Committee believes there 
should be a regular unclassified summary of intelligence 
relating to recidivism of detainees formerly held at Guantanamo 
Bay made public by the DNI.
    Section 334 of the Intelligence Authorization Act for 
fiscal year 2010, Public Law 111-259, addressed this concern 
initially by requiring the Director of National Intelligence, 
along with the CIA Director and the Director of the Defense 
Intelligence Agency, to make publicly available, on a one-time 
basis, an unclassified summary that includes the intelligence 
relating to former Guantanamo detainees. At the same time, the 
President is required under Section 319 of the Supplemental 
Appropriations Act of 2009, Public Law 111-32, to submit 
classified quarterly reports to Congress that include 
classified information about detainees' recidivist activities.
    Section 307 requires the semiannual updating of the Section 
334 report. The semiannual updates required under this section 
will be an update of the Section 334 report and provide an 
unclassified summary of intelligence relating to recidivism of 
detainees currently or formerly held at Guantanamo Bay and an 
assessment of the likelihood that such detainees will engage in 
terrorism or communicate with persons in terrorist 
organizations. The initial update shall be made publicly 
available not later than 10 days after the date that the first 
report following enactment is submitted to members and 
committees pursuant to Section 319 of the Supplemental 
Appropriations Act, 2009. The summary will be prepared by the 
DNI, in consultation with the Director of the CIA and the 
Director of the Defense Intelligence Agency, and will include 
the number of confirmed or suspected recidivists.

Section 308. Submission of information on Guantanamo Bay detainee 
        transfers

    Section 308 requires that not later than 45 days after the 
date of enactment, the DNI, in coordination with the Secretary 
of State, shall submit information to the congressional 
intelligence committees concerning the transfer or potential 
transfer of individuals who are or have been detained by the 
United States at Naval Station, Guantanamo Bay, Cuba. This 
information is to include the following: (1) an assessment of 
the sufficiency of the monitoring undertaken by each foreign 
country to which a detainee has been transferred; (2) any 
written or verbal agreement between the Secretary of State and 
the government of a foreign country that describes monitoring 
and security assurances related to a detainee transferred to 
such country; and (3) each Department of State cable, 
memorandum, or report relating to or describing the threat such 
an individual may or may not pose.

Section 309. Enhanced procurement authority to manage supply chain risk

    Section 309 authorizes the heads of those elements of the 
Intelligence Community outside the Department of Defense to 
take certain procurement actions under certain circumstances to 
reduce the risk that an adversary may sabotage, maliciously 
introduce unwanted functions, or otherwise subvert information 
systems so as to surveil, deny, disrupt or otherwise degrade 
them. Section 309 is based on Section 806 of the Ike Skelton 
National Defense Authorization Act for fiscal year 2011 (Public 
Law 111-383).
    Section 309(a) defines the following terms: covered agency, 
covered item of supply, covered procurement, covered 
procurement action, covered system, and supply chain risk. The 
definitions of these terms are substantially the same as the 
same terms in Public Law 111-383.
    Under subsection (b), the head of a covered agency is 
authorized to carry out a covered procurement action and limit 
the disclosure of information concerning the basis for such 
action. Covered procurement actions are subject to the 
conditions in subsection (c), which include appropriate 
consultation with procurement officials within the agency and a 
determination that the use of the authority is necessary to 
protect national security. In addition, there must be a 
determination that less intrusive measures are not reasonably 
available.
    The head of the covered agency must give notice to the 
congressional intelligence committees of a determination, 
including a summary of the basis for a determination to take a 
covered procurement action. Subsection (c) provides that the 
authority under the section is in addition to any authority 
under any other provision of law. The authority provided in 
Section 309 is not intended to limit other procurement 
authorities available to an intelligence agency head to protect 
the national security.
    The requirements of Section 309 go into effect 180 days 
after enactment and expire on the date that Section 806 of the 
Ike Skelton National Defense Authorization Act for fiscal year 
2011 expires, which will occur in January 2014. In the 
Committee Comments in this report, under the heading of Cyber 
Supply Chain Risk, the Committee requests that the Office of 
the National Counterintelligence Executive coordinate the 
production of an interagency report that will assist in 
determining what further measures are required.

Section 310. Report on burial allowances

    Section 310 provides that the Director of the Office of 
Personnel Management, in consultation with the DNI and the 
Secretaries of Labor and Defense, shall submit a report on 
current burial allowances for federal civilian or military 
personnel. The report shall include recommendations, if any, 
for legislation to provide for burial allowances at a level 
which adequately addresses the cost of burials and provides for 
equitable treatment across the United States Government.
    Following the tragedy at Khowst, Afghanistan, the CIA 
conducted a review of the benefits available to the survivors 
of CIA employees who are killed in the line of duty. According 
to the CIA, the review included a comparison of CIA's existing 
benefits with the benefits offered by the Department of Defense 
to survivors of service members killed in the line of duty. The 
CIA found that its burial allowance was substantially less than 
that offered by DoD and does not adequately cover the cost of 
average burial expenses today.
    Currently, according to the CIA, the DoD offers 
approximately $6,900 for burial in a civilian cemetery where 
the service member's family arranges preparation and casket. 
The burial allowance for CIA employees is governed by the 
Federal Employees Compensation Act (FECA), 5 U.S.C. 8134, which 
dates back to 1966, and which is administered by the Secretary 
of Labor. Under subsection 8134(a), ``If death results from 
injury sustained in the performance of duty, the United States 
shall pay, to the personal representative of the deceased or 
otherwise, funeral and burial expenses not to exceed $800, in 
the discretion of the Secretary of Labor.'' In addition to this 
allowance, $200 is paid ``to the personal representative of a 
deceased employee . . . for reimbursement of the costs of 
termination of the decedent's status as an employee of the 
United States.'' Subsection 8133(f). This amount is not 
adjusted for inflation and does not cover adequately cover the 
actual costs of funeral and burial expenses today, which are, 
according to CIA estimates, on average between $12,000 and 
$15,000.
    The Committee believes it is important to respond to the 
problem identified by the CIA in a manner that addresses 
inadequacies in burial allowances for all federal civilian or 
military personnel who die in the line of duty. The Committee 
understands the Administration concurs in the need to act 
comprehensively. In order to do so, Congress requires the 
information and recommendations called for by Section 310. 
Section 310 requires that the report be submitted by September 
1, 2011, so the information and recommendations can be used in 
reconciling the Senate and House authorizations. Accordingly, 
the Committee requests that the Administration prepare and 
submit this report without waiting for final action on this 
bill.

Section 311. Modification of certain reporting requirements

    The 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 Director of National 
Intelligence, the Committee examined a set of recurring 
reporting requirements nominated by the Intelligence Community. 
Section 311 eliminates certain reports that were particularly 
burdensome to the Intelligence Community when the information 
in the reports could be obtained through other means. It also 
modifies reporting requirements to set a date certain for their 
repeal.
    Because the majority of recurring reports provide critical 
information relevant to the many challenges facing the 
Intelligence Community today, the Committee has proceeded 
carefully in eliminating or modifying only five statutory 
reporting requirements, all from past intelligence 
authorization acts or the Intelligence Reform and Terrorism 
Prevention Act of 2004. The Committee believes that these 
modifications will help the Intelligence Community to allocate 
its resources properly towards areas of greatest congressional 
concern.
    A number of reporting obligations which directly or 
indirectly impose tasks on the Intelligence Community arise 
from legislation reported or managed by committees other than 
the congressional intelligence committees. The Committee urges 
the Intelligence Community to work with those committees, and 
for committees to be responsive to the Intelligence Community, 
in reviewing existing requirements for recurring reports with 
the goal of assuring that the Intelligence Community is able to 
apply its resources to informing Congress in the most efficient 
ways.

  TITLE IV--MATTERS RELATING TO ELEMENTS OF THE INTELLIGENCE COMMUNITY

      Subtitle A--Office of the Director of National Intelligence

Section 401. Temporary appointment to fill vacancies within Office of 
        the Director of National Intelligence

    Section 401 permits the President to make temporary 
appointments to fill vacancies in offices within the Office of 
the Director of National Intelligence that require Senate 
confirmation (except the DNI, for whom by Section 103A(a)(6) of 
the National Security Act of 1947 the Principal Deputy DNI is 
next in line) with an individual who serves in another element 
of the Intelligence Community. A similar provision was 
requested by the DNI.
    The Vacancies Act (5 U.S.C. 3345(a)(1)) provides that upon 
a vacancy in a Senate-confirmed position (1) the first 
assistant of the office may begin serving as the acting officer 
immediately and automatically upon the occurrence of the 
vacancy; (2) another officer who has already received Senate 
confirmation may be directed by the President to serve as the 
acting officer; and (3) certain other senior agency officials 
may be designated by the President to serve in an acting 
capacity. Given the relatively small size of the ODNI, the fact 
that a significant number of the personnel within the ODNI are 
on detail to the office from other elements of the Intelligence 
Community, and the fact that positions in the ODNI to which the 
Vacancy Act applies serve the entire Intelligence Community 
(such as the Director of the National Counterterrorism Center 
or the Inspector General for the Intelligence Community), an 
individual employed within the Intelligence Community but 
outside the ODNI may be best suited to fill a key leadership 
position temporarily.
    Section 401 addresses this issue by expanding the 
President's choice for appointment under the third category of 
the Vacancies Act to include senior officials from any element 
of the Intelligence Community. Nothing in Section 401 modifies 
or precludes the utilization of sections 3345(a)(1) or (2) of 
title 5 to fill vacancies.

Section 402. Application of certain financial reporting requirements to 
        the Office of the Director of National Intelligence

    Section 402 provides a limited grace period for the ODNI in 
meeting the requirements of 31 U.S.C. 3515 until fiscal year 
2013. The DNI in requesting this legislative provision stated 
that the grace period will allow time for the implementation of 
system improvements as well as process changes in the financial 
management system currently supporting the ODNI. Together these 
efforts are intended to yield financial statements that meet 
the prescribed legal and audit standards.
    Although the ODNI under 31 U.S.C. 3515 is required to 
prepare and submit to the Congress and the Director of the 
Office of Budget and Management an audited financial statement 
for the preceding fiscal year by the following March 1st, 
Section 369 of the Intelligence Authorization Act for fiscal 
year 2010, enacted on October 7, 2010, directs the DNI ``to 
develop a plan and schedule to achieve a full, unqualified 
audit of each element of the intelligence community not later 
than September 30, 2013.'' Section 402 will align the statutory 
requirement for auditability with the plan for achieving 
auditability set forth in the fiscal year 2010 Act.

Section 403. Public availability of information regarding the Inspector 
        General of the Intelligence Community

    Section 403 requires the DNI to establish and maintain on 
the publicly accessible ODNI website information relating to 
the Inspector General (IG) for the Intelligence Community 
including methods to contact the IG. Section 403 is based on a 
similar requirement in Section 8L of the Inspector General Act, 
as added by the Inspector General Reform Act of 2008, 5 U.S.C. 
App., and is similar to Section 415. The information about the 
IG is to be obvious and facilitate accessibility to the IG. 
Given that most of the IG's reports will be classified, Section 
403 does not require that IG reports and audits be posted on 
the publicly accessible website.

Section 404. Technical correction to the Executive Schedule

    Section 404 amends 5 U.S.C. 5315 to establish the salary 
level of the Chief Information Officer of the Intelligence 
Community at Level IV of the Executive Schedule, the level of 
other chief information officers in the federal government with 
comparable duties and responsibilities. The Chief Information 
Officer of the Intelligence Community is a position established 
in Section 103G of the National Security Act, added by section 
303 of Public Law 108-487, the Intelligence Authorization Act 
for fiscal year 2005, and amended by Section 404 of Public Law 
111-259, the Intelligence Authorization Act for fiscal year 
2010.

                Subtitle B--Central Intelligence Agency

Section 411. Foreign language proficiency requirements for Central 
        Intelligence Agency officers

    Section 411 makes amendments in Section 104A(g) of the 
National Security Act of 1947 which imposes foreign language 
requirements on certain personnel within the CIA. Section 411 
is intended to tie the need for foreign language skills to 
officers in occupations where foreign language ability is most 
important, rather than to specific positions, within the 
Directorate of Intelligence career service or National 
Clandestine Service career service. It is intended to eliminate 
the need for the Director of the CIA to approve waivers for the 
promotion, appointment, or transfer of personnel such as 
attorneys or human resources officers for whom the requirement 
is not intended to apply. Section 411 sets the language 
proficiency at the objective level of level 3 on the 
Interagency Language Roundtable Language Skills Level or a 
commensurate proficiency level. Section 411 requires the 
Director of the CIA to report to the congressional intelligence 
committees on the number of personnel transferred into the 
Directorate of Intelligence career service or National 
Clandestine Service career service who did not meet the foreign 
language requirements of Section 104A(g). It also makes 
technical corrections to delete outdated references to the 
Directorate of Operations.

Section 412. Acceptance of gifts

    Section 412 is a provision, like Section 310, that arose 
out of the CIA's review of benefits available to the survivors 
of CIA employees killed in the line of duty following the 
December 2009 attack at Khowst, Afghanistan. The CIA concluded 
that the Director of the CIA did not have the authority under 
Section 12 of the CIA Act to accept and use gifts for purposes 
related to the welfare, education and recreation of those 
survivors. Under current law, the Director of the CIA may 
``accept, hold, administer, and use gifts of money, securities 
and other property whenever the Director determines it would be 
in the interest of the United States . . . for purposes 
relating to the general welfare, education, or recreation of 
employees or dependents of employees of the Agency or for 
similar purposes. . .  .''
    Section 412 amends Section 12 of the CIA Act to authorize 
the Director (or the Director's designee) both to accept gifts 
and to use them for the welfare of employees injured in the 
line of duty without legal concern whether those actions are 
for the general welfare of the CIA employee population as a 
whole. It also provides that gifts may be used for the 
assistance of the family of CIA officers who were injured or 
who died from hostile or terrorist activities or in connection 
with other intelligence activities having a substantial element 
of risk. All of the authority under Section 12 shall be made 
according to regulations developed by the CIA Director in 
consultation with the Director of the Office of Government 
Ethics, consistent with all relevant ethical constraints and 
principles. The Committee intends for gifts to be accepted 
under this section by the CIA on behalf of the CIA employees 
concerned, and not directly by such employees or their family 
members.

Section 413. Public availability of information regarding the Inspector 
        General of the Central Intelligence Agency

    Section 413 requires the Director of the CIA to establish 
and maintain on the publicly accessible CIA website information 
relating to the CIA IG including methods to contact the IG. 
Section 413 is based on a similar requirement in the Inspector 
General Reform Act, 5 U.S.C. App. 8L, and is similar to Section 
403. The information about the IG is to be obvious and 
facilitate accessibility to the IG. Given that most of the IG's 
reports will be classified, Section 413 does not require that 
IG reports and audits be posted on the publicly accessible 
website. Section 413 is based upon a request of the CIA IG.

Section 414. Recruitment of personnel in the Office of the Inspector 
        General

    Section 414 requires the Director of the CIA, in 
consultation with the Inspector General of the CIA, to conduct 
a study of the personnel issues of the Office of the Inspector 
General. The study shall include identification of any barriers 
and disincentives to the recruitment or retention of 
experienced investigators within the Office of the Inspector 
General. The Director shall compare the personnel authorities 
of the CIA Inspector General with the personnel authorities of 
other federal Inspectors General, including a comparison of the 
benefits available to experienced investigators within such 
offices with those available to investigators within the Office 
of the CIA Inspector General, and shall take such 
administrative actions as may be appropriate to address such 
disparities. The Director shall report to the congressional 
intelligence committees on the administrative actions taken 
based on the results of the study and the Director's 
recommendations for legislative action, if any, within 90 days 
of enactment. By including Section 414, it is the Committee's 
intent that unwarranted barriers and disincentives should not 
be allowed to prevent the CIA's Office of the Inspector General 
from recruiting and retaining the best possible workforce to 
carry out its important functions.

                  Subtitle C--National Security Agency

Section 421. Confirmation of appointment of the Director of the 
        National Security Agency

    Section 421 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 421 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.
    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 421 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 421(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.

Section 422. Additional authorities for National Security Agency 
        security personnel

    Section 422 amends Section 11 of the National Security 
Agency Act of 1959 to authorize NSA security personnel to 
transport apprehended individuals from NSA premises to law 
enforcement officials. Under current law, when NSA security 
personnel apprehend an individual, they must wait with the 
individual until local law enforcement personnel arrive to 
complete the transfer of custody. This can require NSA 
personnel to wait, frequently for hours, often with the 
apprehended individual in a security vehicle, for the transfer 
to local law enforcement. According to the DNI, from 2004 to 
2009, on 448 occasions, the apprehension of an individual 
engaged NSA personnel and transportation resources for over 2 
hours.
    Section 422 provides a limited expansion of authority for 
NSA security personnel to transport apprehended individuals to 
local law enforcement within 30 miles of NSA premises. The 
Committee intends that this authority be used sparingly by NSA 
security personnel under a well-established regime of 
administrative controls and management oversight, and only with 
prior consent from the accepting jurisdiction.

                       Subtitle D--Other Elements

Section 431. Appropriations for defense intelligence elements; accounts 
        for transfer; transfer

    Section 431 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 section is intended 
to ensure improved auditing of defense intelligence 
appropriations.

Section 432. Federal Bureau of Investigation participation in the 
        Department of Justice leave bank

    Section 432 provides for participation of employees of the 
Federal Bureau of Investigation (FBI) in the Department of 
Justice's Voluntary Leave Bank Program. The Voluntary Leave 
Bank Program allows federal employees to donate to and to 
receive donations from a leave ``bank'' to cover absences 
necessitated by extraordinary medical conditions. Current law 
does not allow participation by FBI employees in the 
Department's program, although the FBI is part of the 
department. While 5 U.S.C. 6372(c) would allow FBI to establish 
its own voluntary leave bank program, the Director of the FBI 
has determined that it would be more cost effective and 
efficient to allow FBI employees to participate in the larger 
Department of Justice program and has requested a legislative 
provision to accomplish this objective for the overall benefit 
of the Bureau and its personnel. Under Section 432, the 
Director may consider the protection of sources and methods in 
allowing for participation in the leave bank program. In 
providing for leave bank opportunities to cover absences 
necessitated by extraordinary medical conditions, the Committee 
expects the Director will consider any impact on operations of 
the Bureau when making a decision on whether to allow FBI 
employees to take part in the program.

Section 433. Intelligence community membership of the Office of 
        Intelligence and Analysis of the Department of Homeland 
        Security

    Section 433 amends Section 3(4)(K) of the National Security 
Act of 1947 in order to include the Office of Intelligence and 
Analysis of the Department of Homeland Security (DHS) within 
the term ``intelligence community'' for purposes of the Act. 
This provides for a more specific reference to the DHS 
component, in addition to the intelligence element of the Coast 
Guard, that is part of the Intelligence Community as Congress 
has done in Section 3(4)(I) and (J) for the State and Treasury 
Department elements of the Intelligence Community.

                         TITLE V--OTHER MATTERS

Section 501. Conforming the FISA Amendments Act of 2008 sunset with 
        other FISA sunsets

    Section 501 conforms the sunset for Title VII of FISA, as 
added by the FISA Amendments Act of 2008 (Public Law 110-261), 
now scheduled to occur on December 31, 2012, to June 1, 2015, 
the date recently set by Public Law 112-14 for the other sunset 
provisions in the Foreign Intelligence Surveillance Act of 
1978.
    Title VII of FISA establishes procedures for collection, 
pursuant to orders of the Foreign Intelligence Surveillance 
Court, of foreign intelligence through the targeting of persons 
reasonably believed to be located outside of the United States. 
Section 702 governs collection targeted against persons other 
than United States citizens or permanent residents of the 
United States. Sections 703 and 704 establish procedures, 
requiring probable cause determinations by the FISA Court, for 
collection against United States persons outside of the United 
States. In addition to the judicial oversight established by 
these sections of Title VII, Section 702 requires periodic 
assessments by the Attorney General, the Director of National 
Intelligence, and the Inspectors General of the Department of 
Justice and each element of the Intelligence Community that is 
authorized to acquire foreign intelligence under Title VII. 
Also, Section 707 mandates comprehensive semiannual reports by 
the Attorney General to the congressional intelligence and 
judiciary committees on the implementation of Title VII. All of 
these important collection and oversight provisions will be 
repealed at the end of this Congress unless the sunset date for 
them is extended.
    The alignment of all the remaining sunset dates in FISA--
those recently extended by Congress to June 1, 2015 and the 
sunset for Title VII--will provide Congress with an opportunity 
to examine comprehensively all expiring authorities at the same 
time rather than in a piecemeal fashion. By addressing the 
Title VII sunset now, rather than waiting until next year, 
Congress will help assure the stability of the foreign 
intelligence collection system during the critical times 
immediately ahead.
    It should also be clear what is not involved in this sunset 
extension. Title VIII of FISA, which was added by Title II of 
the FISA Amendments Act of 2008, established procedures for 
immunity for electronic communication service providers who 
furnished assistance to an element of the Intelligence 
Community during the President's Surveillance Program between 
2001 and 2007. These immunity provisions are not subject to a 
sunset. They have been subject, however, to judicial review as 
provided for in Title VIII of FISA. The judgment of the United 
States District Court for the Northern District of California 
upholding the constitutionality of Title VIII of FISA is now 
before the United States Court of Appeals for the Ninth 
Circuit. In re: National Security Agency Telecommunications 
Records Litigation, 633 F. Supp. 2d 949 (N.D. Cal. 2009), 
appeal pending, Case No. 09-16676 (9th Cir.). Nothing in the 
sunset extension and alignment in Section 501 of the bill will 
have any effect on this litigation or the underlying immunity 
provision of Title VIII of FISA.

Section 502. Technical amendments to the National Security Act of 1947

    Section 502 updates certain references in sections 3(6), 
506(b) and 506A of the National Security Act of 1947 from the 
``Director of Central Intelligence'' and the ``National Foreign 
Intelligence Program'' to the ``Director of National 
Intelligence'' and the ``National Intelligence Program.''

Section 503. Technical amendments to Title 18, United States Code

    Section 503 updates references in 18 U.S.C. 351(a) to the 
Director and Deputy Director of Central Intelligence and 
provides that the amended section includes the DNI, the 
Principal Deputy DNI, and the Director and Deputy Director of 
the CIA among officials covered by the provision.

                           Committee Comments

Space launch

    The Committee remains concerned over the increasing costs 
of space launch, in particular, the Air Force's Evolved 
Expendable Launch Vehicle (EELV). These costs have increased 
dramatically since the submission of the fiscal year 2011 
budget request, and are expected to continue to rise despite 
significant efforts to curtail costs. Particularly troublesome 
are the monopolistic state of EELV providers and the current 
structure's perpetuation of the barriers to entry for 
alternative launch providers. Removing these barriers could 
increase competition and lower costs.
    The Committee notes the ongoing debate over the future of 
the nation's space launch capabilities, with the national 
security space community and the National Aeronautics and Space 
Administration (NASA) both having strong equities and providers 
of choice. Congressional intent for NASA's space launch systems 
was expressed in the National Aeronautics and Space 
Administration Authorization Act of 2010 (Public Law 111-267). 
The Committee is concerned, however, that maintaining two 
separate launch infrastructure and industrial bases, both of 
which rely nearly entirely on heavy government funding, is 
fiscally unsustainable. Approaching launch from a whole-of-
government perspective will pay great benefits to the taxpayer.
    The Committee believes that it is in the nation's economic 
and security interests to promote U.S. space launch providers 
that are, or are positioning themselves to be, competitive in 
the commercial and civil markets. The EELV providers have 
demonstrated little success in this regard, leaving them nearly 
entirely reliant on U.S. government customers who are forced to 
bear the cost.
    Today the national security space community currently has 
no certified alternative to the EELV program for most of its 
launch needs. Other U.S. launch providers, however, show 
promise as they compete for commercial, civil, and national 
security launch business and develop larger systems, one of 
which is in the EELV capability class. These providers must 
demonstrate the reliability so well documented with the EELV 
program in order to justify launching critical, and expensive, 
national security payloads. Regardless, every effort should be 
made to support them in this regard, and the Committee is 
encouraged by some steps taken by the Air Force to do just 
that.
    The Committee has grave concerns about the proposed 
strategy to reduce cost increases for the EELV systems by 
committing to block buys of booster cores for years to come. 
Block buys for the next couple of years may have significant 
merit and should be considered. However, the Committee is 
concerned that committing the nation to the EELV with 
substantial block buys of boosters for years to come will 
result in a saturated market, probably through the end of this 
decade, thereby prolonging an unnecessary barrier to entry for 
the other U.S. launch providers to compete with the EELV.
    The government should position itself such that if 
alternative launch providers can show similar reliability and 
performance to EELV with substantial cost savings, the 
government would have the flexibility to respond to this 
development. The Committee, therefore, encourages the Air Force 
to reduce the quantity of EELV block buys planned to support 
launches beginning in 2015 to no more than five booster cores 
per year for no more than four years.
    The Committee also questions the cost of maintaining a 
Delta-IV Heavy lift capability. Barring a coherent strategy to 
evolve the Delta-IV Heavy to meet NASA requirements, there are 
very few requirements for this system. Therefore, the Committee 
wishes to understand the potential savings of doing away with a 
Delta-IV Heavy launch capability. Consistent with language in 
the classified annex accompanying this bill, the Committee 
requests that the Air Force and the National Reconnaissance 
Office certify expected cost savings to the EELV Launch 
Capability contract under three scenarios relating to the 
Delta-IV Heavy: (1) removing launch requirements from Cape 
Canaveral, (2) removing launch requirements from Vandenberg 
AFB, and (3) removing all launch requirements.

Evolutionary Acquisition for Space Efficiency (EASE)

    The Committee has concerns about the Defense Department's 
Evolutionary Acquisition for Space Efficiency (EASE) strategy. 
In a detailed study, the Office of the Secretary of Defense 
laid out the rationale for EASE. The merits of EASE include 
encouraging program funding stability, reducing technical risk, 
reaping the benefits of block buy procurements, stabilizing 
portions of the industrial base, and encouraging greater use of 
fixed price contracts.
    The Committee recognizes the wisdom in many of these steps. 
However, the Committee notes that the study of space 
acquisitions leading to the EASE strategy focused on industrial 
base and funding issues, but paid little attention to a 
critical factor in major system acquisitions: program 
management. The ramifications of implementing EASE likely will 
include a chilling effect on competition and the de facto 
instantiation of favored contractors for particular systems. 
Furthermore, those favored contractors will be chosen not on 
their merits, but by the fact that they are the incumbents 
today. These incumbents also happen to be the larger industrial 
contractors.
    The Committee finds that when wisely applied, by competent 
program management, competition pays huge dividends. The 
Committee has also noted the dramatic capabilities of the 
medium and small sized industrial contractors, who will be 
largely relegated to providing payloads and other subsystem 
work to the larger prime contractors whose incentive to reduce 
costs and innovate will be eroded by the EASE construct.
    More fundamentally, EASE seems to be a departure from the 
philosophy outlined in previous strategies, such as the DNI's 
Vision 2015, which recommends shifting from ``large, expensive 
collection platforms towards smaller, netted collection 
systems.'' The joint report of the Defense Science Board and 
Intelligence Science Board, Integrating Sensor Collected 
Intelligence, had similar recommendations, including that 
``future acquisition programs disaggregate sensors from 
platforms with the goal of acquiring more platforms with 
potentially less capable, and therefore less costly, sensors 
and plan to achieve increased performance by integrating data 
from multiple sensors/platforms.''
    Although the Committee acknowledges some of the merits of 
EASE, it encourages the Executive Branch to focus at least as 
much attention on improving program management. In this way, 
the positive effects of competition and the further development 
of smaller, more efficient contractors can be garnered.

Intelligence Community performance measurement

    In an era of stable or shrinking budgets, the Intelligence 
Community must seek out unneeded redundancies and strive for 
efficiency. The regular accounting of goals, metrics, and 
accomplishments across the entire Intelligence Community--such 
as that produced annually in the Intelligence Community's 
Summary of Performance and Financial Information Report--is 
helpful in finding efficiencies, avoiding unneeded duplication, 
and making the intelligence enterprise more nimble. The 
Committee believes that the office of the Assistant DNI for 
Systems and Resource Analyses (SRA) plays a critical function 
in aggressively identifying and realizing savings. The SRA 
undertakes cross-cutting analyses to find efficiencies, 
performs major issue studies to streamline community 
activities, and has found significant cost savings that can be 
directed to critical priorities. The SRA has only been in 
existence for a short time, but has already made a significant 
impact, resulting in significant savings in the fiscal year 
2012 budget. The Committee supports the work of this office and 
expects it to continue to perform its necessary and valuable 
functions.
    Given the secrecy of components of the intelligence budget, 
it is important to have constant and effective oversight of the 
Intelligence Community--by the executive branch, as well as by 
the congressional oversight committees. In response to a 
question for the record from Senator Warner after the 
Committee's National Intelligence Program Budget Hearing, on 
March 29, 2011, about how the Intelligence Community complies 
with the GPRA Modernization Act of 2010 (Public Law 111-352), 
the ODNI indicated that the Intelligence Community currently 
already reports quarterly to the Office of Management and 
Budget on its Priority Goals--focused on what the Community 
seeks to achieve in the next 18-24 months. These quarterly 
reports demonstrate progress against the Intelligence 
Community's most important mission objectives. The ODNI further 
stated that it would be able to provide such quarterly updates 
to the Committee. Accordingly, the Committee requests the ODNI 
to furnish the Committee copies of such quarterly reports 
starting with the second quarter of fiscal year 2011, as well 
as any subsequent reports. The Committee expects to receive 
these reports no later than three months after enactment of 
this legislation.

National Counterterrorism Center

    The National Counterterrorism Center (NCTC) is responsible 
for strategic operational planning for counterterrorism 
activities across the U.S. Government, including interagency 
coordination of operational activities and the assignment of 
roles and responsibilities. The Director of NCTC is further 
charged with aligning counterterrorism resources against the 
U.S. Government's National Strategy for Counterterrorism and 
producing assessments on the capabilities and gaps related to 
these activities.
    Given the current fiscal issues facing the United States 
and the growing pressures to reduce government spending, the 
Committee is concerned about the rising costs associated with 
the expansive counterterrorism enterprise. It is important for 
Congress to understand how counterterrorism resources align 
with mission priorities and objectives.
    No later than 90 days from the date of enactment, the 
Committee requests that the Director of the NCTC submit a 
report to the congressional intelligence committees assessing 
the state of the U.S. Government's counterterrorism enterprise 
from NCTC's perspective, including a full description of the 
resources utilized and how they are tied to counterterrorism 
strategy and objectives. The Committee believes efficient 
resource allocation to meet government-wide counterterrorism 
objectives is critical and encourages NCTC to work with the 
Committee on a long-term solution to sharing such information 
with Congress.

Maintenance and disposition of ODNI records

    As part of its legislative requests for this fiscal year 
2012 Authorization, the Administration asked for legislation to 
authorize the CIA, at the request and direction of the DNI, to 
maintain and dispose of the records of the administrative and 
business activities of the ODNI, as the CIA has done since the 
establishment of the ODNI in 2005. The original reason for this 
arrangement, as described to the Committee, was that the ODNI 
lacked the financial, administrative, and technical 
capabilities to maintain these records on its own. There has 
never been express statutory authority for this arrangement.
    The Committee has concluded that the ODNI should maintain 
and dispose of its own records rather than delegating this 
responsibility to the CIA. It recognizes that a period of time 
will be required for the ODNI to undertake the responsibility 
for its own records. The Committee requests that the ODNI 
inform the congressional intelligence committees about the time 
and resources that will be required to accomplish this. In any 
event, the Committee expects the transition to be completed 
within two years.

Intelligence Community in United States Export Control Regime

    The global power and reach of the United States have 
depended in large measure on the country's ability to develop 
cutting-edge technologies and foster innovative industries 
faster than other nations. National creativity, technological 
innovation, and scientific prowess have enabled the United 
States to develop systems and capabilities that provide a clear 
technological advantage over adversaries in almost every 
category of scientific or technological endeavor.
    Likewise, overseas exports of U.S. technologies contribute 
to the nation's economic prosperity and foreign trade balance. 
The ongoing demand for superior U.S. technologies in most of 
the world's markets and the continued willingness of foreign 
governments to make concessions in return for technology 
transfers, provide additional weight to American diplomatic 
efforts abroad. At the same time, the pace of technological 
innovation is increasing overseas, as is the development of 
sophisticated manufacturing.
    The nation's technological edge, especially in strategic 
defense systems, aeronautical and missile technologies, 
nuclear, space, and cyberspace programs must be protected. The 
Intelligence Community, in cooperation with other agencies of 
the Federal Government, is well positioned to determine the 
threat that any potential technological export might pose to 
U.S. systems, U.S. technological dominance, or U.S. national 
security.
    Therefore, the Committee requests that no later than 180 
days after the date of enactment, the DNI shall provide to the 
congressional intelligence committees a report that provides a 
full description of the IC's participation in, and 
contributions made to, the export control decisionmaking 
processes of the United States government.
    This report should address, but not be limited to, the 
following information: which IC agencies contribute to the 
export control review process; the level at which agency 
contributions are made, including hours of personnel effort 
involved; the process for identifying and closing intelligence 
gaps related to understanding foreign technological 
capabilities and potential threats; the opportunities that may 
exist for new collection and analysis activity; the authorities 
under which IC agencies provide input into the export control 
process; the training available on export control processes for 
IC personnel; and any recommendations for improvements that 
should be made in the decisionmaking processes involving the 
Intelligence Community.

Cyber supply chain risk

    The Committee is concerned about the counterintelligence 
risk posed by foreign manufacturers and suppliers of 
telecommunications equipment and services to U.S. customers. 
While it is neither possible nor desirable, from an economic 
standpoint, to foreclose access to U.S. markets, the Committee 
believes that U.S. customers of telecommunications equipment 
and services--including the United States government--should 
incorporate counterintelligence concerns into their procurement 
decisions. For example, the Committee believes that there 
should be enhanced authority to manage supply chain risks for 
civilian procurements, including Intelligence Community 
procurements, in addition to the authority that Congress 
recently provided for Department of Defense procurements. The 
Committee provides for such enhanced authority for Intelligence 
Community procurements in Section 309.
    A necessary precursor to private and U.S. government 
customers incorporating counterintelligence concerns into their 
procurement decisions is having access to timely 
counterintelligence threat information. Accordingly, to assist 
in determining what further measures are required, the 
Committee requests the Office of the National 
Counterintelligence Executive (NCIX), in coordination with 
other Intelligence Community agencies and the Department of 
Homeland Security, to coordinate and produce a report on 
counterintelligence threats to the U.S. telecommunications 
infrastructure, including any risks associated with purchasing 
equipment and services from foreign manufacturers and 
suppliers. The report should be submitted to the congressional 
intelligence committees within 180 days of enactment. The 
Committee also requests that the NCIX, in coordination with the 
Department of Homeland Security, to produce a plan for sharing 
counterintelligence risk information about telecommunications 
supply chains with federal and state agencies and the private 
sector within 90 days of completion of the coordinated report 
on counterintelligence threats. The Committee provides 
additional background and guidance on these directions in the 
Classified Annex.

Intelligence Advanced Research Projects Activity

    The Committee views the role of the Intelligence Advanced 
Research Projects Activity (IARPA) as important to the success 
of IC research and technology investment and maintenance of the 
U.S. Government's strategic advantage. To date IARPA has been 
hampered by its narrow contracting authorities. Its current 
ability to issue solicitations and make selections works well, 
but other contracting authorities seem to be inadequate.
    Once IARPA identifies an entity with a promising research 
proposal, it requires nine months or more to put a contract in 
place. Some sources of innovative research, such as small 
businesses, cannot afford to wait nearly a year for an 
opportunity to work with IARPA. They may go out of business or 
move on to other opportunities in the intervening months.
    The Committee has tasked its Technical Advisory Group (TAG) 
to examine IARPA, including reviewing the activity's 
contracting abilities. Moreover, the Committee requests that 
the DNI reevaluate the authorities delegated to the Director of 
IARPA and look for additional opportunities to delegate 
additional authorities to better support IARPA's mission and 
provide to the Committee within 60 days of enactment of this 
legislation.

Information integration

    The Committee remains impressed with the vision of the 
Information Integration Program (I2P). The I2P was initiated in 
the summer of 2008 as an informal means of determining areas 
within the information technology systems of the Intelligence 
Community that could be altered to better enable information 
sharing and access, and then providing the guidance and 
resources to enable these changes to take place. I2P has a 
primary goal of demonstrating how improved connectivity between 
and among intelligence agencies could help IC components 
perform their mission better. While cost savings may be an 
ancillary benefit, the mission focus of I2P proved to be an 
attractive motivation for IC personnel.
    Despite the substantial promise of I2P, progress has been 
slow. Several years since the inception of the program, the IC 
still lacks a community-wide authorization and attributes 
service and an IC-wide login. Appropriate authorization and 
attributes are necessary to provide agencies with the ability 
to grant access selectively to their data to personnel across 
the IC, while protecting their sensitive material. Such a 
technology would help meet the requirement for discoverability 
of intelligence information by giving agencies confidence that 
their sensitive data can be protected. The Committee requests 
that the ODNI identify ways to achieve more quickly the 
capability for analysts to discover all relevant data across 
the Intelligence Community and provide the results to the 
Committee within 60 days of enactment of this legislation.

Core contractors

    The Committee for some time has been concerned about the 
dramatic increase in the use of contractors by the Intelligence 
Community since 9/11. While contractors can serve an important 
role in providing expertise and filling an emerging need 
quickly, the Committee notes that contractor personnel costs 
tend to be substantially more than government personnel rates. 
Therefore, the Committee commends the Intelligence Community 
for its efforts to reduce core contractors and to convert core 
contractors where appropriate to government employees. However, 
data reviewed by the Committee indicates that some elements of 
the IC have been hiring additional contractors after they have 
converted or otherwise removed others, resulting in an overall 
workforce that continues to grow.
    In order to keep core contractors from increasing in 
number, the Committee has recommended in the classified annex 
that the number of core contractors in each element of the 
Intelligence Community should be capped at the fiscal year 2010 
levels in fiscal year 2012. Additionally, the Committee 
believes that the all elements of the IC should be able to 
track the number of its core contractors on a regular basis. 
Currently, most IC agencies have only the capability to compile 
data on contractors once a year to respond to the ODNI core 
contractor review. The Committee believes that IC elements 
should be able to determine their use of core contractors on a 
weekly or monthly basis.

Report on elevating Marine Corps Intelligence Chief to 0-9 rank

    The head of Marine Corps Intelligence presently is ranked 
0-7 while other service intelligence chiefs hold 0-9 rank. The 
Committee is concerned that it is not possible for Marine Corps 
Intelligence to receive equal consideration when the Corps' 
service intelligence chief is ranked lower than other service 
chiefs, and that having a lower ranked senior officer will be a 
disincentive for Marines who might otherwise pursue an 
intelligence career.
    As Marine Corps Intelligence takes on more missions and 
expands its capability, the Committee believes the Department 
of Defense and the Marine Corps should consider elevating the 
position of Director of Intelligence (DIRINT) United States 
Marine Corps to O-9 rank.
    Therefore, within six months of the enactment of this bill, 
the Committee requests the United States Marine Corps to 
deliver a report to the congressional intelligence and armed 
services committees on the costs and implications of elevating 
DIRINT, Marine Corps to 0-9 rank and a timeline in which such 
could happen.

CIA's homefront program and IC support to deploying employees

    The Committee supports the development of a program to 
provide support to CIA employees who deploy to the war zones, 
and their families. A significant number of CIA personnel have 
served in war zones such as Afghanistan, Iraq, and elsewhere. 
The Committee is encouraged by the preliminary development of 
the ``Homefront Program,'' through which the CIA has provided 
support to those who serve in war zones and their families. The 
Committee encourages the CIA to continue to implement this 
program, and to examine ways that it may be improved and 
expanded. The Committee encourages the CIA's Directorate of 
Support to review a range of possible enhancements intended to 
improve further the family assistance program, and to propose a 
comprehensive plan for doing so.
    The Committee further encourages the ODNI and components of 
the Intelligence Community to share best practices from the 
Defense Department's support programs for employees deploying 
to war zones and their families. The Committee requests the 
ODNI provide the Committee with a brief synopsis of existing 
Intelligence Community efforts and ways they may be improved.

Independent review of security implications of ``cloud'' based 
        architecture

    The Committee recognizes that the federal government is 
taking steps to move information technology systems (including 
those in the Intelligence Community) to a more efficient and 
effective ``cloud'' based architecture. Nonetheless, the 
security concerns of moving sensitive and critical data onto 
cloud-based systems persist, especially given recent widely-
publicized incidents of cyber-attacks against U.S. government 
and commercial networks.
    The Director of the National Security Agency, General Keith 
Alexander, recently indicated that cloud computing could 
actually reduce security risks by moving information to a 
centralized configuration that would allow for tighter control 
over access and more rapid responses to cyber incidents. In 
written testimony to the House Armed Services Committee on 
March 16, 2011, he stated, ``This [cloud] architecture would 
seem at first glance to be vulnerable to insider threats--
indeed, no system that human beings use can be made immune to 
abuse--but we are convinced the controls and tools that will be 
built into the cloud will ensure that people cannot see any 
data beyond what they need for their jobs and will be swiftly 
identified if they make unauthorized attempts to access data.''
    The Committee therefore requests the Office of the Director 
of National Intelligence to commission an independent review of 
the efficiency and security implications of moving sensitive 
government information--including information dependent upon or 
residing upon classified networks--to a cloud-based 
architecture. The Committee would like to see the results of 
such a review within six months.

Classification review of historical records

    Under Executive Order 13526, the Executive Branch has a 
system in place for determining whether older classified 
materials contain sensitive information that warrant continued 
classification. While no such obligation rests on the 
Legislative Branch, the Committee has taken recent action to 
address the declassification review of Committee records based 
on their age. For example, Section 702 of the Intelligence 
Authorization Act for fiscal year 2010 authorized the DNI, at 
the request of one of the congressional intelligence committees 
and in accordance with that committee's procedures, to conduct 
a classification review of materials that are not less than 25 
years old and were created or provided to the committee by an 
executive branch entity.
    Section 702 enables the Committee to determine whether a 
portion of its historical records of congressional oversight of 
the Intelligence Community may be made public in a manner 
consistent with national security. The Committee is now 
considering whether portions of the Committee's oversight work, 
using that executive branch information among other sources, 
may also be released in a manner consistent both with national 
security and Senate practice concerning historical records. In 
all cases, the final decision about any release of historical 
records remains with the Committee.
    Senate Resolution 400 of the 94th Congress (1976), which 
established the Committee, transferred to the Committee the 
records of the Select Committee on Governmental Operations with 
Respect to Intelligence Activities, generally known as the 
Church Committee. That committee helped to establish the 
groundwork for our current system of intelligence oversight, 
including the creation of the congressional intelligence 
committees. The Church Committee released a substantial public 
record before concluding its work in 1976, but some parts of 
its report as well as hearings and depositions on significant 
matters remain classified.
    The Committee accordingly requests that the Director of 
National Intelligence provide guidance to the Committee on how 
to design and prioritize an approach to the review and release, 
where appropriate, of early records. The approach should also 
consider all costs associated with any declassification review 
and potential release of information. The Committee notes that 
the Senate Historian has worked with Senate committees on the 
review of classified historical records such as those involved 
in the Committee on Foreign Relations' twenty-volume 
publication of its executive sessions from 1947-1968 (see S. 
Prt. 111-23, the 1968 volume released in 2010). The Committee 
may invite the participation of this Senate office within the 
boundaries of clearance requirements.

                            Committee Action

    On July 28, 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 a managers' 
amendment by Chairman Feinstein and Vice Chairman Chambliss to: 
(1) amend the section of the bill (Section 305) pertaining to 
nuclear proliferation assessment statements to clarify that 
these statements, rather than the nuclear cooperation 
agreements, shall be submitted to the congressional 
intelligence committees; (2) amend the bill to provide the 
heads of intelligence elements outside the Department of 
Defense additional procurement authorities to manage supply-
chain risk (Section 309); and (3) include a provision in the 
classified annex.
    By a vote of 8 ayes to 7 noes, the Committee adopted an 
amendment by Vice Chairman Chambliss to require the DNI, in 
coordination with the Secretary of State, to produce 
information concerning monitoring and security assurances for 
detainees transferred from the U.S. Naval Station, Guantanamo 
Bay, Cuba, and each State Department cable, memorandum, or 
report relating to or describing the threat a detainee may or 
may not pose (Section 308). 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 7 ayes to 8 noes, the Committee rejected an 
amendment by Senator Wyden as modified by Chairman Feinstein to 
require the Inspector General of the Department of Justice to 
submit a report within one year on implementation of the FISA 
Amendments Act of 2008. The votes in person or by proxy were as 
follows: Chairman Feinstein--aye; Senator Rockefeller--aye; 
Senator Wyden--aye; Senator Mikulski--aye; Senator Nelson--no; 
Senator Conrad--aye; Senator Udall--aye; Senator Warner--aye; 
Vice Chairman Chambliss--no; Senator Snowe--no; Senator Burr--
no; Senator Risch--no; Senator Coats--no; Senator Blunt--no; 
Senator Rubio--no.
    By unanimous consent, the Committee agreed to an amendment 
to the classified annex by Senator Burr as amended by Chairman 
Feinstein.
    By unanimous consent, the Committee agreed to an amendment 
to the classified annex by Senator Blunt.
    By voice vote, the Committee agreed to an amendment to the 
classified annex by Senator Rubio.
    By voice vote, the Committee agreed to an amendment to the 
classified annex by Senator Rubio.
    By voice vote, the Committee rejected an amendment by 
Senator Wyden and Senator Udall calling for a report from the 
Attorney General and the DNI pertaining to interpretations of 
domestic surveillance law.

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 August 1, 
2011, 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 CHAIRMAN FEINSTEIN

    The Committee is reporting out this fiscal year 2012 
Intelligence Authorization bill in time for it to be enacted 
before the beginning of the next fiscal year, meaning that for 
the first time since 2004 the Committee will be exercising its 
full ability to direct and influence the Intelligence 
Community's activities and budget. By contrast, there were no 
enacted intelligence authorization bills for fiscal years 2006 
through 2009, and the enacted legislation for 2010 and 2011 
were passed after, and midway through, their respective years.
    The Committee's action with this legislation is an 
important further step toward re-establishing a regular cycle 
of annual intelligence authorization acts, and with it the 
ability of the Senate Intelligence Committee to have meaningful 
oversight, legislative input, and budget authorization.
    The legislative portion of the bill contains practical 
measures, many in response to Administration requests, to 
improve the operations and governance of the Intelligence 
Community. Of perhaps even greater importance, the budgetary 
part of the bill contained in the classified annex sets forth 
an authorization roadmap for the prudent use of fiscal 
resources in advance of the consideration of fiscal year 2012 
appropriations for intelligence activities, one that recognizes 
the nation's financial situation.
    The bill and the accompanying classified annex are the 
product of months of collaborative work within the Committee to 
obtain broad agreement. I again thank all the Members of the 
Committee for their efforts and suggestions in putting the bill 
together. In particular, I thank Vice Chairman Chambliss for 
his partnership and close collaboration.
    As is described in the Committee's report, however, there 
is a provision in the bill--Section 308, ``Submission of 
Information on Guantanamo Bay Detainee Transfers,'' that was 
added at markup by an 8-7 vote. Believing that the provision is 
ill-advised on a number of grounds, I was among those voting 
no.
    Section 308 provides that within 45 days of enactment the 
Director of National Intelligence, in coordination with the 
Secretary of State, shall submit to the House and Senate 
Intelligence Committees three categories of information about 
the transfer or potential transfer of individuals who are or 
have been detained at Guantanamo.
    The State Department has communicated its strong objection 
to this provision on the grounds that it will require the 
Department to provide, through the Director of National 
Intelligence, a large amount of documents and other materials 
that go beyond what is traditionally shared with the Congress, 
including the foreign relations committees.
    The Intelligence Committee has done significant oversight 
on the matter of detention operations at Guantanamo, the 
transfer of detainees from Guantanamo to other countries, and 
the threat that former detainees pose to our national security. 
There are additional provisions in this legislation, as well as 
the classified annex, intended to further the Committee's and 
the Intelligence Community's efforts as they relate to 
Guantanamo.
    It is important, however, for our Committee to respect the 
responsibilities of other Senate committees, in this case the 
Committee on Foreign Relations, just as we would wish Senate 
committees to be respectful of our responsibilities. I am also 
concerned that the provision's demand for ``each Department of 
State cable, memorandum, or report'' will damage the 
Department's ability to conduct diplomatic discussions. Within 
our responsibility for intelligence oversight, we can and 
should require and receive from the Intelligence Community the 
products of its intelligence collection and analysis concerning 
former detainees. And we can work cooperatively with the 
Committee on Foreign Relations to ensure we are collectively 
conducting oversight over the intelligence and foreign 
relations aspects of Guantanamo detainee transfers. I do not 
believe that this provision is the best way to achieve that 
goal.
    In a second 8-7 vote, the Committee rejected an amendment 
to obtain additional information on implementation of the FISA 
Amendments Act of 2008 through a requirement for an assessment 
and report by the Department of Justice Inspector General, in 
consultation with the Inspectors General of Intelligence 
Community elements, on several matters concerning the 
implementation of title VII of FISA, as added by the FISA 
Amendments Act of 2008.
    I supported the amendment in order to obtain information 
needed to fulfill our oversight responsibilities on legislation 
which the committee authored, especially given the sunset of 
some of these authorities and the need for Congress to consider 
them again legislatively. While I regret the amendment was not 
adopted, I will seek to ensure through hearings and other 
oversight activities that our Members receive additional 
information about implementation of the Act.
                                                  Dianne Feinstein.

              ADDITIONAL VIEWS OF RON WYDEN AND MARK UDALL

    In May of this year, when the Senate voted to renew the 
surveillance authorities contained in the USA PATRIOT Act with 
no modifications, we both expressed our concern that there is a 
significant discrepancy between what most Americans--including 
many members of Congress--think the Patriot Act allows the 
government to do and how government officials interpret that 
same law.
    During the floor debate we offered an amendment, along with 
Senator Merkley of Oregon and Senator Tom Udall of New Mexico, 
that would have expressed the sense of Congress that it is 
entirely appropriate for particular intelligence collection 
techniques to remain secret, but that that the laws that 
authorize intelligence collection--and the U.S. government's 
official interpretation of these laws--should be understandable 
to the public, so that these laws can be the subject of 
informed public debate and discussion. Our amendment also would 
have directed the Attorney General to make certain official 
legal interpretations available to the public.
    The four of us discussed our amendment on the floor of the 
Senate with the Chair of the Intelligence Committee, Senator 
Feinstein. Senator Feinstein took our concerns seriously and 
proposed to hold a hearing on this issue, so that the Committee 
could consider our amendment in the context of the FY2012 
Intelligence Authorization bill. We appreciate the seriousness 
with which Senator Feinstein responded to our concerns and 
followed through on her commitment to ensure that the Committee 
examined this issue thoroughly.
    After substantial discussion and consideration, we remain 
very concerned that the U.S. government's official 
interpretation of the Patriot Act is inconsistent with the 
public's understanding of the law. During a July 2011 committee 
hearing, the General Counsel of the National Security Agency 
acknowledged that certain legal pleadings by the executive 
branch and court opinions from the Foreign Intelligence 
Surveillance Court regarding the Patriot Act are classified. We 
have had the opportunity to review these pleadings and rulings, 
and we believe that most members of the American public would 
be very surprised to learn how federal surveillance law is 
being interpreted in secret.
    In our view, the executive branch's decision to conceal the 
U.S. government's official understanding of what this law means 
is unacceptable, and untenable in the long run. Intelligence 
agencies need to have the ability to conduct secret operations, 
but they should not be allowed to rely on secret laws. 
Furthermore, we note that the government has relied on secret 
interpretations of surveillance laws in the past, and the 
result in every case has been eventual public disclosure, 
followed by an erosion of public trust that makes it harder for 
intelligence agencies to do their jobs. This outcome can only 
be prevented by ensuring that the government's interpretation 
of the law is always consistent with the public's 
understanding.
    During the Intelligence Committee's consideration of this 
authorization legislation, we offered a modified version of the 
amendment that we proposed to the Patriot Act with Senators 
Merkley and Tom Udall in May 2011. Our amendment repeated the 
statement that the U.S. government's official interpretation of 
surveillance laws should be understandable to the public, but 
rather than direct executive branch officials to make any 
information public, it simply directed them to report to the 
congressional intelligence committees on the problems posed by 
this reliance on secret legal interpretations, and a plan for 
addressing such problems. We regret that our amendment was not 
adopted, but we plan to keep pursuing opportunities to address 
what remains, in our view, a very serious problem.
    The full text of the amendment as we offered it in 
committee is below:

committee amendment proposed by mr. wyden, for himself and mr. udall of 
                                colorado

    At the appropriate place, insert the following:

SEC._. REPORT ON SECRET INTERPRETATIONS OF SURVEILLANCE LAW.

    (a) Findings.--Congress makes the following findings:
          (1) In democratic societies, citizens rightly expect 
        that their government will not arbitrarily keep 
        information secret from the public but instead will act 
        with secrecy only in certain limited circumstances.
          (2) The Government of the United States has an 
        inherent responsibility to protect the citizens of the 
        United States from foreign threats and sometimes relies 
        on clandestine methods to learn information about 
        foreign adversaries, and these intelligence collection 
        methods are often most effective when they remain 
        secret.
          (3) The citizens of the United States recognize that 
        their government may rely on secret intelligence 
        sources and collection methods to ensure national 
        security and public safety, and such citizens expect 
        intelligence activities to be conducted within the 
        boundaries of publicly understood law.
          (4) It is essential for the public in the United 
        States to have access to enough information to 
        determine how government officials are interpreting the 
        law, so that voters can ratify or reject decisions that 
        elected officials make on their behalf.
          (5) It is essential that Congress have informed and 
        open debates about the meaning of existing laws, so 
        that members of Congress are able to consider whether 
        laws are written appropriately and may be held 
        accountable by their constituents.
          (6) It is critical that officials of the United 
        States not secretly reinterpret public laws in a manner 
        that is inconsistent with the public's understanding of 
        such laws and not describe the execution of such laws 
        in a way that misinforms or misleads the public.
          (7) Significant interpretations of the Foreign 
        Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 
        et seq.), as modified by the USA PATRIOT Act (Public 
        Law 107-56; 115 Stat. 272), which represent the 
        Government of the United States official 
        interpretations of the law, are currently being kept 
        secret from the public because the executive branch has 
        determined that such interpretations are classified.
          (8) While it is entirely appropriate for particular 
        intelligence collection techniques to be kept secret, 
        it is critical that the laws that authorize such 
        techniques and the Government of the United States 
        official interpretations of such laws not be kept 
        secret but instead be transparent to the public, so 
        that such laws may be the subject of informed public 
        debate and consideration.
    (b) Report.--Not later than 60 days after the date of the 
enactment of this Act, the Attorney General and the Director of 
National Intelligence shall submit to the congressional 
intelligence committees a report that includes--
          (1) a detailed assessment of the problems posed by 
        the reliance of government agencies and departments on 
        interpretations of domestic surveillance authorities 
        that are inconsistent with the understanding of such 
        authorities by the public; and
          (2) a plan for addressing such problems with regard 
        to the Foreign Intelligence Surveillance Act of 1978 
        (50 U.S.C. 1801 et seq.), and, particularly, with the 
        amendments to such Act made by the USA PATRIOT Act 
        (Public Law 107-56; 115 Stat. 272).

    We also offered a second amendment, which would have 
directed the Inspector General of the Department of Justice to 
estimate the number of Americans who have had the contents of 
their communications reviewed under the FISA Amendments Act of 
2008.\1\
---------------------------------------------------------------------------
    \1\This bill contains a provision that extends the surveillance 
authorities granted by the FISA Amendments Act, which are currently 
scheduled to expire in 2012, to 2015. Senator Wyden voted against the 
bill in committee because of the inclusion of this provision. Senator 
Udall supported the overall bill in committee, but agrees that it is 
very important for Congress to obtain this information.
---------------------------------------------------------------------------
    In July 2011, we wrote to the Director of National 
Intelligence and asked how many Americans have had their 
communications reviewed under this law. The Director's office 
replied promptly, and told us that ``it is not reasonably 
possible to count the number of Americans whose communications 
may have been reviewed under the authority of the [FISA 
Amendments Act]''. While we accept that it might be difficult 
for intelligence personnel to determine the exact number of 
Americans whose communications have been reviewed, we believe 
that it is necessary to get an estimate of this number so that 
Congress can understand how the law has been implemented.
    It is important to remember that section 702 of the Foreign 
Intelligence Surveillance Act, which was created by the FISA 
Amendments Act, was specifically written to cover the 
surveillance of foreigners outside the United States. In fact, 
it requires the Attorney General to develop procedures to 
ensure that individuals targeted under this authority are 
believed to be outside the United States. So understanding 
approximately how many people inside the United States have had 
their communications reviewed under this authority is essential 
to determining whether this law is working as Congress intended 
or not.
    Since the Director of National Intelligence has not been 
able to provide us with an estimate of how many Americans have 
had their communications reviewed, we believe it is appropriate 
to direct an independent entity with auditing expertise to 
attempt to estimate this number. The Office of the Inspector 
General of the Department of Justice has conducted a number of 
in-depth audits and investigations of various classified 
surveillance programs over the past several years, and these 
investigations have identified important issues and uncovered 
significant facts. Classified versions of these reports have 
been submitted to Congress, and unclassified versions have been 
made available to the public, and this has helped to better 
inform the debate regarding these surveillance programs. We 
believe that the Office of the Inspector General's past work 
(including investigative work directed by the FISA Amendments 
Act itself) demonstrates that it is capable of carrying out 
this review.
    Our amendment also would have directed the Inspector 
General to review instances where government personnel have 
failed to comply with the FISA Amendments Act, and estimate the 
number of people inside the United States, if any, who have had 
their communications reviewed as a result of these compliance 
violations. It is a matter of public record that there have 
been incidents in which intelligence agencies have failed to 
comply with the FISA Amendments Act, and that certain types of 
compliance violations have continued to recur. We believe it is 
particularly important to gain an understanding of how many 
Americans may have had their communications reviewed as a 
result of these violations.
    We understand that some of our colleagues are concerned 
that our amendment did not explicitly state that the final 
report of the Inspector General's investigation should be 
classified. We respectfully disagree that this is necessary. In 
our view, while it is entirely appropriate for the details of 
particular intelligence collection programs to remain 
classified, disclosing the approximate total number of 
Americans who have had their communications reviewed would not 
seem to present a threat to U.S. national security, and to our 
knowledge no intelligence agency has suggested that it would. 
In any event, we are confident that the executive branch will 
seek to classify any information that it believes needs to be 
secret, and that it is not necessary for Congress to direct 
that particular reports be classified.
    We regret that this amendment was also not adopted, but we 
will continue to attempt to obtain the answers to the questions 
that it sought to resolve, and we look forward to working with 
our colleagues on this effort.
    The full text of our amendment, as modified and offered in 
committee, is below:

COMMITTEE AMENDMENT PROPOSED BY MR. WYDEN, FOR HIMSELF AND MR. UDALL OF 
                                COLORADO

    At the appropriate place, insert the following:

SEC._. REPORT ON THE IMPLEMENTATION OF THE FISA AMENDMENTS ACT OF 2008.

    (a) Requirement for Report.--Not later than one year after 
the date of the enactment of this Act, the Inspector General of 
the Department of Justice shall submit to the entities 
described in subsection (b) a report on the implementation of 
the amendments made by the FISA Amendments Act of 2008 (Public 
Law 110-261; 122 Stat. 2436).
    (b) Entities Described.--The entities described in this 
subsection are the following:
          (1) Congress.
          (2) The Attorney General.
          (3) The Director of National Intelligence.
          (4) The court established under section 103 of the 
        Foreign Intelligence Surveillance Act of 1978 (50 
        U.S.C. 1803).
    (c) Content.--The report required by subsection (a) shall 
include the following:
          (1) An assessment of the extent to which acquisitions 
        made under section 702 of the Foreign Intelligence 
        Surveillance Act of 1978 (50 U.S.C. 1881a) have 
        resulted in the acquisition or review of the contents 
        of communications of persons located inside the United 
        States, including--
                  (A) the number of persons located inside the 
                United States who have had the contents of 
                their communications reviewed under such 
                section 702; or
                  (B) if it is not possible to determine such 
                number, the estimate of the Inspector General 
                of the Department of Justice of such number 
                made using representative sampling or other 
                analytical techniques.
          (2) To the extent that any significant 
        interpretations of such section 702 are classified, the 
        assessment of the Inspector General whether any 
        acquisitions made pursuant to such interpretations have 
        resulted in the review of the contents of 
        communications of persons located inside the United 
        States, including, an estimate of the number, if any, 
        of persons located inside the United States who have 
        had the contents of their communications reviewed under 
        such interpretations.
          (3) A review of the Inspector General of incidents of 
        non-compliance with the amendments made by the FISA 
        Amendments Act of 2008 (Public Law 110-261; 122 Stat. 
        2436), with a particular focus on types of non-
        compliance incidents that have recurred, including an 
        estimate of the number, if any, of persons located 
        inside the United States who have had the contents of 
        their communications reviewed due to such a non-
        compliance incident.
    (d) Consultation.--The Inspector General of the Department 
of Justice may consult with the Inspectors General of elements 
of the intelligence community in preparing the report required 
by subsection (a).
    (e) Access.--The Inspector General of the Department of 
Justice shall have all appropriate access needed to prepare the 
report required by subsection (a).
                                   Ron Wyden.
                                   Mark Udall.

                                  
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