On June 13, 2014 Senator Diane Feinstein of California asked for permission to address the United States Senate regarding the Intelligence Authorization Act for Fiscal Year 2014.
Senator Feinstein is Chairwoman of the Senate Select Intelligence Committee, therefore her comments are particularly important and relevant to any discussion on this important piece of legislation.
The Senate Select Committee on Intelligence, established in 1975, has oversight responsibility for the 16 civilian and military agencies and departments that make up the U.S. Intelligence Community.
Below is a unedited version of her entire speech on the Senate Floor:
“Madam President, I am pleased to speak today on the Senate’s passage last night of the Intelligence Authorization Act for Fiscal Year 2014. I would like to speak briefly on the bill itself, as well as the process for its passage.
As Members know, the intelligence committee produces an authorization bill every year that both authorizes funds for the intelligence community and sets out legislation that authorizes and limits intelligence activities. This is the primary vehicle for legislation on intelligence matters and serves as one of the most important tools by which the intelligence committee, and indeed the Congress, is able to carry out its oversight duties.
From the committee’s formation in 1976 through 2004, the Congress passed intelligence authorization legislation every year. Unfortunately, that streak came to an end during the last decade, and there was no Intelligence bill signed into law from 2005 to 2009. It is no coincidence that during this period the congressional oversight was also at a low point.
When I became chairman of the committee in January 2009, one of my top priorities was to reinstitute the annual authorization bill process. Fortunately, I was joined in that goal by then-vice chairman of the committee Kit Bond and by the chairman of the House Intelligence Committee, Silvestre Reyes. We also, importantly, had the support of the majority and Republican leaders in the Senate and the leaders of the two committees with the greatest shared interest in the bill, the Armed Services Committee and the Appropriations Subcommittee on Defense.
I am proud that the Congress has passed and the President has signed Intelligence authorization bills each of the past 4 years. With the Senate’s action yesterday, we stand ready to pass a fifth.
The committee’s preparation of the Fiscal Year 2014 Intelligence Authorization Act last summer was disrupted by the leaks, beginning in June 2013, of materials taken from the NSA by former contractor Edward Snowden. The committee held roughly a dozen hearings in the following months on NSA programs like the bulk phone metadata program conducted pursuant to title V of the Foreign Intelligence Surveillance Act, Section 215 of the USA PATRIOT Act, and the targeted collection of electronic communications of non-U.S. persons outside the United States under section 702 of the Foreign Intelligence Surveillance Act. These were programs that had already been the subject of considerable committee oversight and discussion over the past several years.
The committee also received briefings on the extent of damage caused by the leaks and on the shortcomings of the internal security measures to prevent someone from accessing, downloading, and leaving NSA with classified information.
We marked up a separate bill, the FISA Improvements Act, last October and then marked up the Intelligence authorization bill last November.
After approving the authorization bill, we worked with the House Intelligence Committee to produce the legislation that the Senate passed yesterday. We have preconferenced these bills over the past couple of years in order to move them through the process, with good results.
Let me describe a few of the provisions in the bill, as well as one that was not included.
First, the classified annex to the bill authorizes sufficient funding for the intelligence community to collect and analyze intelligence for our national security. Among other intelligence activities, the bill funds counterterrorism, counterproliferation, counterintelligence, and covert action programs.
While classification prevents me from getting into specifics, the bill also continues the committee’s practice of adding funding for intelligence agencies to implement a better insider threat detection system. We have been pushing the intelligence agencies to shore up their safeguards before Mr. Snowden and continue to do so afterwards.
The bill recognizes that the intelligence community’s funding has been reduced significantly due to budget cuts and sequestration. Director of National Intelligence James Clapper has testified that while the challenges facing the intelligence community have grown, its resources have declined. He has made clear that the community can not do “more with less”–it is going to have to do less, and that means accepting additional risk.
On the legislative side, the bill contains numerous provisions to strengthen intelligence oversight, protect whistleblowers, and enhance authorities for intelligence operations. Let me describe just a few of them here.
Two provisions in the bill are intended to enhance congressional oversight of significant legal interpretations affecting intelligence activities, particularly when such interpretations result from opinions of the Justice Department’s Office of Legal Counsel.
Section 321 amends the National Security Act to require that the general counsel of each intelligence agency notify the congressional intelligence committees, in writing, of any significant legal interpretation of the U.S. Constitution or Federal law affecting intelligence activities conducted by that agency.
While the committee generally is kept apprised of the legal basis for intelligence activities of the U.S. Government, as required by sections 502 and 503 of the National Security Act, there have been times when we have not gotten enough information in this regard for us to provide oversight. This provision is intended to ensure that, in the future, the committee receives a detailed, written notification of significant legal interpretations from these general counsels in a timely manner, to include significant interpretations resulting from opinions of the Justice Department’s Office of Legal Counsel, OLC.
Section 322 requires the Attorney General to establish a process for the regular review for official publication of significant OLC opinions that have been provided to any part of the Intelligence Community.
Section 322 also requires that if any OLC opinion would have been selected for official publication but for the fact that the publication would reveal classified or other sensitive information relating to national security, the opinion shall be provided or made available to the appropriate committees of Congress.
The committee regularly conducts oversight of intelligence activities that are the subject of one or more OLC opinions. These opinions often represent the best and most comprehensive legal analysis of intelligence activities. Further, the opinions are sometimes cited by intelligence community officials as the basis for executive branch policy. The committee regards access to these legal opinions as necessary to the performance of its oversight functions and often requests access to such opinions, or the legal analysis contained in such opinions, when the committee is made aware of their existence.
Unfortunately, the Department of Justice and the intelligence community routinely decline to provide the committee with access to OLC opinions that are relevant to the committee’s oversight functions, even when access is specifically requested by the committee. At times, the Department and intelligence agencies will not even advise the committee that relevant OLC opinions exist. Generally, when refusing to provide access to OLC opinions, the executive branch asserts that the information sought by the committee is subject to privilege.
The committee recognizes that, in certain limited cases, OLC opinions or information concerning OLC opinions may be entitled to executive privilege and withheld from Congress on that basis. Nonetheless, the Supreme Court has found in United States v. Nixon, 418 U.S. 683, 1974, that executive privilege is a narrow and qualified privilege that may be overcome by an adequate showing of need.
Section 322 is intended to codify an agreement between the executive branch and the legislative branch with respect to access to OLC opinions provided to an intelligence agency. Specifically, section 322 is intended to ensure the committee is, at a minimum, granted access to all OLC opinions provided to an element of the intelligence community, or information concerning such OLC opinions, that would have been made available to the public had it been unclassified. Section 322 does not alter and is not intended to alter the responsibilities of the executive branch under the National Security Act, the Freedom of Information Act, or any other statute establishing a requirement for the disclosure of information to Congress or to the public, and there remain areas of disagreement between the branches with respect to the scope of the executive branch’s responsibilities under such statutes. In particular, the rule of construction set forth in section 322(d) is intended to apply only to official publication under this section and should not be interpreted as congressional affirmation of a “deliberative process” privilege or any other privilege as the basis for withholding information from Congress or the public under any other statute.
Title VI of the intelligence authorization legislation includes a number of provisions to enhance whistleblower protections for intelligence community employees. These provisions prohibit taking a personnel action against an intelligence community employee as a reprisal for making a protected whistleblower disclosure to the DNI or his designee, the inspector general of the intelligence community, the head of the employing agency or his designee, the appropriate inspector general of the employing agency, a congressional intelligence committee, or a member of a congressional intelligence committee. In addition, title VI prohibits agency personnel with authority over personnel security clearance or access determinations from taking or failing to take or threatening to take or failing to take any action with respect to any employee’s security clearance or access determination in retaliation for a protected whistleblower disclosure. Finally, the title directs the DNI to create procedures to allow appeals of adverse security clearance and access determinations.
These provisions strengthen and reaffirm the mechanisms already in existence for legitimate whistleblowers to bring information regarding violations of law or other concerns to one of several inspectors general throughout the government or to Congress. Importantly, these channels exist because it is not for any one person to decide on his own which intelligence methods are wise or effective.
I would like to note my appreciation for Senator Collins for her work on this portion of the bill and for Senator Chambliss and Congressman Mike Rogers for engaging in lengthy negotiations to find the workable compromise included in this bill.
Title IV of the bill requires Senate confirmation for the directors and inspectors general of the National Security Agency, NSA, and the National Reconnaissance Office, NRO. The individuals appointed to fill these positions perform critical roles in managing and/or overseeing technically complex, highly expensive programs, with significant implications for national security. These individuals also play a vital role in ensuring that intelligence activities carried out by the NSA and NRO are conducted in full compliance with the law and in a manner that protects the privacy and civil liberties of Americans. By requiring Presidential appointment and Senate confirmation of these four positions, Congress will be better able to fulfill its responsibility for providing oversight of the activities of these intelligence agencies.
A separate Senate resolution will govern the process for handling the confirmation of individuals nominated to these four positions. I am cognizant that the confirmation process in the Senate is time consuming, and it is my intention to continue the intelligence committee’s practice of considering nominees quickly and moving them through the Senate on a swift and bipartisan basis.
Title V of the bill includes a number of provisions that are intended to improve the process for investigating persons who are proposed for access to classified information and adjudicating whether such persons satisfy the criteria for obtaining and retaining access to such information. Recent events, including the Snowden disclosures and the navy yard shooting, have highlighted the shortcomings of existing security clearance processes. The provisions in title V continue the committee’s practice of seeking improvements to these processes. In particular, section 501 requires the DNI to ensure that the background of each employee or officer of the intelligence community, each intelligence community contractor, and each individual employee of such a contractor who has been determined to be eligible for access to classified information is monitored on a continual basis under standards developed by the Director.
Finally, section 309 continues Congress’s push for financial auditability within the intelligence community by requiring key agencies to undergo full financial audits, beginning with their fiscal year 2014 financial statements and to take all reasonable steps to achieve an unqualified opinion on financial statements by fiscal year 2016.
With the budget reductions of the past couple of years, we simply cannot afford to mismanage Federal funds. Achieving financial auditability is a key tool to identify and eliminate wasted funding, and I am pleased to say that intelligence agencies are making progress in this regard–though they still have work to do.
In addition, I want to note one provision that does not appear in the bill as passed by the Senate. During the intelligence committee’s consideration of this legislation, I moved an amendment, which was adopted by the committee, regarding U.S. counterterrorism operations. Specifically, the provision would have required that the President issue an annual public report that sets forth the total number of combatants and noncombatant civilians killed or injured during the preceding year through the use of targeted lethal force outside the United States by remotely piloted aircraft.
While the amendment was approved in committee, there was sufficient opposition to its inclusion in both the Senate and the House that the bill would not have passed with the provision included. I agreed to remove the provision from the bill but have engaged with the executive branch on the issue. I received a letter from Director of National Intelligence Clapper, dated April 18, 2014, that says the executive branch is “currently exploring ways in which it can provide the American people more information about the United States’ use of force outside areas of active hostilities” and is “committed to ….. sharing as much information as possible with the American people and the Congress.”
I continue to believe that it is important to release these figures concerning the number of people killed or injured by the use of targeted lethal force outside the United States by remotely piloted aircraft, as the public estimates of the number of casualties are so different from the official figures we have received. This will continue to be of interest, and I will continue to address the issue in the Senate and with the administration.
Today, though, I am very pleased that the Fiscal Year 2014 Intelligence Authorization Act has been approved by the Senate and is on its way to the House of Representatives. I believe that the bill includes a number of important measures and that by continuing to enact legislation, the intelligence committee will further strengthen its oversight role of U.S. intelligence activities.
Finally, I would like to thank, as always, the vice chairman of the committee, Senator Saxby Chambliss. We have worked together on this bill, and both of us support the package. We have also had to work both sides of the aisle to achieve unanimous support for the measure, and I thank him for his work and partnership.
I would also like to thank the staff who put the bill together. On the Democratic side, that is principally Eric Losick, SSCI counsel, Jon Rosenwasser, SSCI budget director, deputy staff director Lorenzo Goco, and counsel Mike Buchwald.
On the Republican side, I thank Jack Livingston and Kathleen Rice, our minority counsels, and Hayden Milberg, minority budget director.
I thank my colleagues for their support”, said Feinstein (source: Congressional Record http://thomas.loc.gov/).