99–010 

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 In- telligence 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 classiVerDate Mar 15 2010 07:21 Aug 02, 2011 Jkt 099010 PO 00000 Frm 00001 Fmt 6659 Sfmt 6602 E:\HR\OC\SR043.XXX SR043

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fied 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 fulltime 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. 


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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 


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of any intelligence activity that is not otherwise authorized by the 

Constitution or laws of the United States. 

Section 302. Increase in employee compensation and benefits 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 


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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 


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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 deVerDate Mar 15 2010 07:21 Aug 02, 2011 Jkt 099010 PO 00000 Frm 00006 Fmt 6659 Sfmt 6602 E:\HR\OC\SR043.XXX SR043

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scribes 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 


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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 ConVerDate Mar 15 2010 07:21 Aug 02, 2011 Jkt 099010 PO 00000 Frm 00008 Fmt 6659 Sfmt 6602 E:\HR\OC\SR043.XXX SR043

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gress 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 

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munity (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, 

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ed 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 


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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. 


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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 

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tween 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 


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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, 


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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. 


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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 DeltaIV 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 


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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 


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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 


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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 


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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 ICwide 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 


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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 


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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 


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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 estab- lished 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 Na- tional 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 con- sider 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 manVerDate Mar 15 2010 07:21 Aug 02, 2011 Jkt 099010 PO 00000 Frm 00024 Fmt 6659 Sfmt 6602 E:\HR\OC\SR043.XXX SR043

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age 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 amend- ment 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 amend- ment 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 


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26 

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. 


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(27) 

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. 


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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. 


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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 inVerDate Mar 15 2010 07:21 Aug 02, 2011 Jkt 099010 PO 00000 Frm 00029 Fmt 6604 Sfmt 6604 E:\HR\OC\SR043.XXX SR043

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terpretation of the law is always consistent with the public’s understanding. During the Intelligence Committee’s consideration of this author- ization 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. l. 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 


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1This 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. 

laws and not describe the execution of such laws in a 

way that misinforms or misleads the public. (7) Significant interpretations of the Foreign Intel- ligence 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 in- telligence 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

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 AmendVerDate Mar 15 2010 07:21 Aug 02, 2011 Jkt 099010 PO 00000 Frm 00031 Fmt 6604 Sfmt 6602 E:\HR\OC\SR043.XXX SR043

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ments 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: 


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COMMITTEE AMENDMENT PROPOSED BY MR. WYDEN, FOR HIMSELF

AND MR. UDALL OF COLORADO

At the appropriate place, insert the following: 

SEC. l. 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). 


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(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. 

fi 


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