National Intelligence Reform Act

CONGRESSIONAL RECORD
SENATE
Sept. 29, 2004

NATIONAL INTELLIGENCE REFORM ACT OF 2004

Mr. DeWINE. Madam President, I come to the floor to support the Specter amendment. I would first like to congratulate my colleague from Maine for the fine job she has done. This is a very difficult bill to put together. It has taken a lot of work. She and Senator Lieberman are certainly to be congratulated.

I would call everyone's attention to the fact that the 9/11 Commission was not the first commission to point out the need for more power in the person who is in charge of our intelligence. Just about every commission that has looked at intelligence reform has come to this conclusion.

Beginning in 1947, the period right after World War II gave birth to the modern intelligence community. Ever since then, this has been a problem. There was a grand compromise that was made at that time and that compromise set us on this path. The situation, though, has gotten worse and worse as time has gone on. And as some of my colleagues have pointed out, we have reached the point where, when George Tenet knew and understood, as frankly few people in this country did, about the threat from Osama bin Laden and al-Qaida and declared war, he looked around and frankly did not have the troops. And the reason he did not have the troops was he did not control the budget. He did not have the power.

He had the responsibility, but he did not have the power. So we have a problem and everybody, I think, understands that. My concern all along has been that we would create this new position, supposedly over the entire intelligence community. Yet this new position would not have the authority. I think Senator Collins and Senator Lieberman have given that person authority, but I don't think, frankly, they have gone far enough.

If you look at the language Senator Specter has included in his amendment, it is a significant improvement over the language of this bill. I ask my colleagues to read the language. If you are concerned about giving this person authority, the Specter language is much better. The worst thing we could do would be to create this new position and think we have given him or her authority and not have given them the authority.

I wonder if I may get the attention of my colleague from Maine at this time, if I may explore with the Senator part of this bill. Again, I thank my colleague for the great work she has done on this bill. I believe she has done a very good job. I am trying to understand the language. As I have told her privately and I have told her again publicly, I prefer the Specter language. But I would like to clarify a little bit what this new position, the NID position-whoever occupies it-what he or she would be able to do under the Senator's bill. If I may pose a couple of questions.

If we can start with the NGA and the whole issue of the satellites, this has been a problem in the past. We don't have to on the floor today go over the problem of the moving of satellites. I ask my colleague this. Let's say that the NID did, in fact, want to move a satellite positioned on country A, and wants to get intelligence from country Z. What ability does that person have to do that? Can you point to the specific language in the bill that would get this done very quickly?

Ms. COLLINS. Madam President, I will find the specific language to show the Senator from Ohio. I have the language. The NID would establish collection and analysis requirements for the Intelligence Community, determine collection and analysis priorities, manage and issue collection and analysis tasking, and resolve conflicts in the tasking abilities of the intelligence community. So the language is very clear that the NID would have enhanced authority to resolve the kinds of conflicts that sometimes do occur now on the allocation of satellite resources, for example.

Mr. DeWINE. So it is the Senator's feeling that-and everything is very time sensitive-in a matter of hours this person could make the decision and basically order this to be done?

Ms. COLLINS. The Senator is correct. Perhaps it will be of some comfort to the Senator from Ohio to know that the language in this regard was suggested to our committee by Senator Roberts and comes from his bill. There is very strong language regarding the issue the Senator has raised.

Mr. DeWINE. I appreciate that. If my colleague could answer this: In a real-world situation, when we are dealing with satellites-and we will not go into the countries on the floor-if a decision had to be made in a matter of hours, if we need this information and we need to move from here to there, could that be ordered? I am using the word "ordered." I am not talking about consultation or prayer together. I am talking about ordering it. Can that be ordered? Can this person order this to be done, saying it will be done, I don't care what anybody else says?

Ms. COLLINS. As I indicated to the Senator from Ohio-and I thought I was very clear in answering his question-it says the NID can issue directions in the collection and analysis tasking. I think the language is very clear that the answer is yes.

Mr. DeWINE. I appreciate what the language is, but I want to know, for the history we are establishing today, if my colleague believes that would include the term "order." In other words, a direction that this will be done.

Ms. COLLINS. The term of art is the issue. That is the correct legal language to use. It is adopted from Senator Roberts' bill. My answer is yes.

Mr. DeWINE. I appreciate that.

Mr. LIEBERMAN. If the chairman will yield, these are very important questions the Senator from Ohio is raising. I want to assure him, first, that we raised the same questions during our committee's deliberation, including meetings with the heads of these national intelligence agencies that are within the Department of Defense. The Senator from Ohio is undoubtedly aware of the reality, which is that the current Director of Central Intelligence has the authority under law to convene a committee, an interagency committee, which every day apparently makes, as one witness said to us, thousands of decisions about where our signal intelligence and image intelligence assets go. In fact, one of the heads of an agency said he didn't remember a time when there was an inability to agree. There is also, clearly, in the end, both in current law, as I understand it, and in the proposal we are making, if the rare situation occurs, you have to have somebody in power to make that decision. Now it is the CIA. Under our proposal, it would be the national intelligence director.

Mr. DeWINE. I appreciate the response. I was just saying to my colleague that my understanding of the reading of recent history has been that the power has not been adequate, with all due respect, and that the history has indicated there have been times when it has not been satisfactory, the results have not been where they should have been, which would indicate to me that the status quo is not acceptable. That is why I am asking whether the new language-I am trying to understand whether the new language is a significant improvement over the status quo. We are on the floor under the understanding that the status quo is not acceptable. I congratulate my colleagues for trying to improve the status quo. I know they are working to do that. That is why I asked that question.

Let me move on to another question.

Mr. LIEBERMAN. If the Senator will yield, if I may respond. I want to refer the Senator to page 14 of our bill in section 4, enumerating the powers of the national intelligence director. We say "establish collection and analysis requirements for the intelligence community to determine collection and analysis priorities, issue and manage collection analysis tasking, and resolve conflicts in the tasking of elements of the intelligence community within the national intelligence program, except as otherwise agreed with the Secretary of Defense pursuant to the direction of the President."

So this is language that completely mirrors existing statute for the Director of Central Intelligence. From testimony we heard, it is fortunately working very well that the conflicts, by the testimony of at least one head of one of the agencies, just do not occur; they work it out.

Mr. DeWINE. I say to my colleague that there are Members besides myself who can privately tell the Senator that there is a history that would indicate this does not work, that the status quo is not acceptable.

If what the Senator is telling me today is this is not really much change from the status quo, then I say to my colleague that we have a major problem.

I reference the language in the old law. I think my colleague may be right, and let me read the old law, which is the status quo today, and this is the power that the head of the intelligence community has today: establish the requirements and priorities to govern the collection of national intelligence by elements of the intelligence community; next, approve collection requirements; determine collection priorities and resolve conflicts in collection priorities levied on national collection assets, except as otherwise agreed with the Secretary of Defense pursuant to the direction of the President.

Just on its face, one would think that resolving these conflicts is already given to the DCI today, and that is why, frankly, I prefer the language of the Specter amendment which talks about the director overseeing the execution of the national intelligence program and to supervise, direct, and control the operations, which to me is the key language.

I yield to my colleague.

Ms. COLLINS. If the Senator would yield on that point, I do not want the Senator to mistakenly believe there are no changes in our bill with regard to current law. There is a very critical change.

Mr. DeWINE. If I could reclaim my time, the problem is the colleague of the Senator just told me there was not much of a change at all, and this is the problem with the language: One of the Senators saying there is a change and the other saying there is not much change. That is ambiguous, which is the problem, with all due respect to both of my colleagues, who are great friends. It is the language; it is not the Senators.

The PRESIDING OFFICER. The Senator from Connecticut.

Mr. LIEBERMAN. Perhaps it was my language that was confusing. I do not think the statutory language is.

The fact is, there is an addition of authority to the NID-there is no question about that-that the DCI does not have, and that is to issue and manage collection and analysis tasking.
What I was trying to say earlier, and I want to distinguish this, is the current law enables the DCI to convene the agency representatives, which they do every day, to resolve and decide where our national assets go, and then to resolve a conflict, as described in the language that I read from, which is what the current DCI has.
We have added, very importantly, and the Senator is right, the ability of the national intelligence director additionally to issue and manage collection and analysis tasking.

Mr. DeWINE. Reclaiming my time, so there is a change?

Ms. COLLINS. If the Senator will yield?

Mr. DeWINE. I will yield.

Ms. COLLINS. There is a very significant change, as I said to the Senator when he first raised this very important question. We recognize that the current Director of the CIA cannot issue tasking, cannot require the collection of information, under this section of the law. That is why we took language recommended by Senator Roberts, included it in the bill that I believe the Senator from Ohio may have cosponsored, which strengthened that authority by adding the language, "issue and manage collection and analysis tasking." That is not in current law.

Mr. DeWINE. I appreciate that. I will have to go back and study this a little bit more.

I say to my colleague from Maine, I am happy with her answer when she responded to my question, can this be ordered, and her response, I believe, was yes. In other words, under her bill the NID could order the satellite to be moved. Because I think there is a problem.

The evidence is that in the past there have been some problems-I am not saying it is a problem that occurs all the time; it probably gets worked out most of the time-but there have been some problems and I think this needs to be a situation where there has been a problem or there might be a problem, be ordered, it has to be. So I certainly appreciate the response.

Let me ask another question, if I could. Moving to the area of signal intelligence, NSA, let us say the NID, under the Senator's bill, decided it was in our national interest to move the assets, move the resources, from listening to country X to terrorist Y organization. It is the same type of issue but again a real world issue. We are moving our assets; we have to make this decision very quickly in the real world. Could that person order that to be done?

The PRESIDING OFFICER. The Senator from Maine.

Ms. COLLINS. If the Senator would yield for a response.

Mr. DeWINE. I yield.

Ms. COLLINS. My answer would be the same. The NID has the authority, has the power, to use the words of Senator from Ohio, to issue these orders, to task these agencies to carry out these directives.

I note that because the NID has the authority to manage the budgets of these agencies, he has a pretty big stick to use as enforcement.

Mr. DeWINE. If we can just talk back and forth a minute, let me interject and then the Senator can respond. I appreciate the progress the Senator has made in regard to the budget, and I think that is very important, but we have seen from our work on the Intelligence Committee, in looking at the intelligence community, a lot of these decisions that are being dealt with in the real world, are very time sensitive so when a budget change is made, we are talking about the next year or 2 years. Those are very important. They are changing directions. That is important. So I congratulate the Senator for making that change.

I am not concerned that the Senator has not done that in her bill. The Senator has done that. What I am concerned about is the execution. For example, I see in the Specter language: direct, oversee, execute the national intelligence program. Then he goes on to say: supervise, direct, and control the operations of the Central Intelligence Agency, the National Security Agency, et cetera.

So what I see in the Specter language that gives me a great deal of comfort is "supervise, direct, control operations." To me, "operations" is the key language because now we are dealing with things that are very time sensitive.

What I worry about is not the long-term planning. I am convinced that the Senator has taken care of that and I congratulate her for that. What I worry about is real world examples that I have now, such as we are listening to one country, or we have assets over here that we need to move very quickly over here and target a terrorist organization, and say we have limited assets, can we do that. It is a hypothetical, but could that decision be made?

Ms. COLLINS. Madam President, I think the Senator from Ohio is raising excellent, important questions in this debate, but he is creating a misimpression of what the bill does with regard to budget authority.

This is not 1 year off or 2 years off. The NID has budget execution authority, not just putting the budget together for presentation and recommendation to the President; he executes the budget as the year goes by. He has strong authority to reprogram funds with congressional approval and notification, I hasten to say, and to transfer funds.

He has extensive authority to transfer personnel. He has the right under our bill to appoint the heads of these agencies with concurrence from the Secretary of Defense. That is a major change from current law.

If the Senator from Ohio is saying, as he is, that the NID should have direct line authority over the day-to-day operations of these combat support agencies, I disagree with the Senator from Ohio. I believe it does not make sense and, in fact, the NID could not handle running these agencies day to day. As Senator Levin indicated earlier, you would have to create an enormous supervisory staff within the office of the NID if you were going to transfer that authority from the Secretary of Defense. Clearly, the NID has the authority to direct the collection and analysis of information by the heads of these agencies, but I do not think he should be running them day to day.

Mr. DeWINE. If I could follow that up with a question, since the Senator raised it-and I think I know her answer, but I want to make sure I do understand her answer-talking about moving people around, according to the newspapers-this is what is published in the newspapers-there is a problem with a backlog apparently in listening to tapes of intercepts, at least that is what has been in the newspaper. Would the NID have the authority to move linguists from one agency to another to correct that problem? For example, if they had to, they could move them from the DIA to the CIA?

Ms. COLLINS. Absolutely.

Mr. DeWINE. This person, he or she, could pick up the phone and say: We are going to move 50 people, 100 people from over here to over there?

Ms. COLLINS. Absolutely.

Mr. DeWINE. This person does not have to call the SECDEF, does not have to do anything?

Ms. COLLINS. If the Senator will yield so I can respond to his question.

Mr. DeWINE. Surely.

Ms. COLLINS. There is very strong authority for the NID to transfer personnel who are working within the national intelligence program throughout the Federal Government and, indeed, I would envision the staffing of the National Counterterrorism Center would come from the NID taking linguists, analysts, operatives, collectors-all sorts of expertise-from the various intelligence agencies. And I know for a fact we need to give the NID that power because I visited with the head of the Terrorist Threat Integration Center who does not have that power and finds it very difficult to get the personnel resources he needs.

Mr. DeWINE. I appreciate the answer. So the Senator is saying this person can actually go in to DIA and say: I want those people. I want them. We are going to take them from DIA, and we are going to put them over here at CIA because I know best what the priorities need to be, and this is national security, and we are going to get it done.

Ms. COLLINS. Will the Senator yield for a response?

Mr. DeWINE. I certainly will.

Ms. COLLINS. The DIA employees who are part of the national intelligence program, yes, the answer is yes. DIA employees who are part of DOD's tactical intelligence programs, which are outside the scope of the authority of the NID, the answer in that case would be no. So it depends. But if they are part of the national intelligence program, which thousands of DIA employees are, the answer is yes.

Mr. DeWINE. I appreciate that. What I do not understand, though, is what I thought I heard earlier on about the Senator's distinction between tasking and control. That does sound like control to me. The Senator from Maine is saying they can task but they cannot control. Basically, that sounds like control to me if you can move someone.

Ms. COLLINS. I disagree with the Senator, so I do not know how to respond. I was saying the NID does not run the day-to-day, daily operations of the NSA, for example.

Mr. DeWINE. And I appreciate that. But in direct response to my question, the Senator is saying that person could, in fact, make that command decision, pick up the phone and say, "We are moving 50 people," and that would be done, and that would be it. I want to make sure on the record because I think it is going to be very important 2 years from now or 18 months from now, and I would hate for the NID person to come before our committee and say: "I can't move people around."

Ms. COLLINS. If the Senator will yield for a response.

Mr. DeWINE. I am happy to yield.

Ms. COLLINS. Madam President, I direct the Senator from Ohio to the exact language in the bill. On page 27, starting on line 21:

© in accordance with procedures to be developed by the National Intelligence Director, transfer personnel of the intelligence community funded through the National Intelligence Program from one element of the intelligence community to another element of the intelligence community;

I think that language is crystal clear that the NID could, indeed, take a linguist from the counterterrorism division of the FBI and transfer that individual to the National Coun ter ter ror ism Center, or an analyst from DIA who is funded through the national intelligence program and shift that individual to the counterterrorism center. I think it is very clear.

Mr. DeWINE. I thank my colleague from Maine for answering these questions. As always, she is very eloquent and has been very thoughtful in her questions and her work on the bill. I congratulate her for the good work she has done.

Madam President, I do appreciate my colleague's answers. I will be voting in favor of the Specter amendment simply because I think it is more clear. I think it adds something to this bill. I think it makes it more specific. It is clear. When we are done with our work, then it will be up to the great bureaucracy, the men and women who are out there to defend us-and I do not use "bureaucracy" in a derogatory way at all; these are great people doing wonderful work out there who are defending us-it will be up to them to make this work. We have an obligation to do our best to give them something that will work and to give them the language that will allow the clearest lines of authority.
I believe if you take the Collins-Lieberman bill, which is good work, and you then add the Specter amendment, the
Specter amendment makes it clearer, makes it more precise, and makes the lines of authority much easier to understand.

I believe it also will deal with a concern I have had for a long time, as we saw this reform coming, and that is my fear that we would create this new position, give them authority, and do a pretty good job, but not quite give them all the authority this person needs.

We have had the opportunity in the Intelligence Committee to listen to some of the things that have gone wrong for the last few years, and there have been a lot of things that have gone wrong. It is not only organization. It is not only line authority. It is not only the fact that the DCI did not have enough power, but that is part of it. This bill goes a ways to deal with that. I believe the Specter amendment improves it further and makes it clearer, and is the right way to go.

Somebody has to be in charge. The buck has to stop somewhere. Never again do we want to be in a position where it is not clear who is in charge. Never again does this country want to be in a position where the top person in intelligence doesn't have all the authority he or she needs to protect us, to protect our children, to protect our families. The Specter amendment will make it very clear where the buck stops. The buck will stop with this person whom we are now calling the NID and who is called the NID under the Collins-Lieberman bill. So I will vote in favor of the Specter amendment. I urge my colleagues to vote in favor of it as well.

I yield the floor.

BREAK IN TEXT

Mr. DeWINE. If I could respond?

Mr. LEVIN. I am happy to yield.

Mr. DeWINE. My colleague and I have, I think, the same objectives. My colleague from Maine and I have the same objectives. I think our differences are, frankly, down to what language accomplishes this. I think, also, I have more skepticism and bring to the table maybe more skepticism about how the world works. I am usually the optimist. But on this I am skeptical about the ability of this new position, someone whom we are now throwing into a newly created position, to be able to drive his or her agenda. I am concerned about it. I think it is a concern based on reason. There is a reason to be concerned about it, knowing the bureaucracy and how it works.

I think the Specter language is more clear, it is more precise: Supervise, direct, control operations. That doesn't mean picking planes or worrying about the day-to-day activities. That is not how I interpret it. It is not how I interpret it.

Mr. LEVIN. If the Senator will yield, I don't know any other way you can.

Mr. DeWINE. It is your time.

BREAK IN TEXT

Mr. DeWINE. If I can respond, I understand my colleague's point. It strikes me that we have come a long way in this debate and the evolution of this bill. I think we have gone in the correct direction. I look at where we were 2 months ago or 3 months ago in this debate-it is all for the good. When every one of us speaking on the Senate floor, all four of us who are down here at this moment are basically saying we want the same thing and what we are now debating, I believe, is the language to get there. I think my colleagues, Senator Lieberman, Senator Collins, my colleague from Michigan, would agree we are saying basically we want the same thing. I think that is good.

We are going to vote different ways on the Specter amendment, but I think this is progress because there is a consensus that has emerged that we want this head of intelligence in this country to be accountable, to have the control that person lacking them has, so the buck will stop with that person, so when they come in front of our committee we can't hear the excuses. It is going to be a great improvement.

I congratulate my colleagues for the great work they have done. I think this debate we have had here for the last 45 minutes has been a very good one. I think we have clarified some things and we clearly clarified, at least in my mind, the intent of the authors of this bill.

I think we created some interesting legislative history about what the power of this person should be. There should be no doubt in any person's mind in the future, NID or anyone who has to deal with him, what their powers should be in this area. I think that is all for the good.

I thank my colleague and yield the floor.