Intelligence Reform and Terrorism Prevention Act of 2004 - Conference Report

INTELLIGENCE REFORM AND TERRORISM PREVENTION ACT OF 2004--CONFERENCE REPORT -- (Senate - December 08, 2004)

The PRESIDENT pro tempore. Under the previous order, the Senate will proceed to consideration of the conference report to accompany S. 2845 which the clerk will report.

The legislative clerk read as follows:

The committee of conference on the disagreeing votes of the two Houses on the amendment of the House to the bill (S. 2845) to reform the intelligence community and the intelligence and intelligence-related activities of the United States Government, and for other purposes, having met, have agreed that the Senate recede from its disagreement to the amendment of the House and agree to the same with an amendment, and the House agree to the same, signed by a majority of the conferees on the part of both Houses.

BREAK IN TRANSCRIPT

Mr. WYDEN. Madam President, I rise today to express my concern regarding a provision included in the Intelligence authorization conference report, which has been included in the intelligence reform legislation before us. I commend the efforts of both Chairman ROBERTS and Vice Chairman ROCKEFELLER for their hard work during the negotiations over this legislation. But I, like the vice chairman, do not support the continued funding of a major acquisition program which is unnecessary, ineffective, over budget, and too expensive. The easier path would be to step aside and let this program continue without dissent. In this case, however, I do not believe the continued funding of this program is the best way to secure our Nation and the safety of our troops and citizens.

The Senate Select Committee on Intelligence has raised concerns about the need and costs of this program for the past 4 years and sought to cancel this program in each of the past 2 years. This has not been a political issue, a Democratic or Republican issue, nor should it be. The members of the Senate committee have supported these efforts in a nonpartisan way with unanimous votes each time.

The Senate Intelligence Committee has determined that this program should not be funded based on firm policy judgments. Numerous independent reviews have concluded that the program does not fulfill a major intelligence gap or shortfall, and the original justification for developing this technology has eroded in importance due to the changed practices and capabilities of our adversaries. There are a number of other programs in existence and in development whose capabilities can match those envisioned for this program at far less cost and technological risk. Like almost all other acquisition programs of its size, initial budget estimates have drastically underestimated the true costs of this acquisition and independent cost estimates have shown that this program will exceed its proposed budgets by enormous amounts of money. The Senate Intelligence Committee has also in the past expressed its concern about how this program was to be awarded to the prime contractor.

I understand why funding for this program was included in the conference report. The administration requested it, the appropriators have already funded it, and the House wanted to maintain the funding. Nevertheless, I believe this issue must be highlighted because it is not going away. I wish more of my colleagues knew of the details of this program and understood why we are so convinced that it should be canceled. I encourage you to request a briefing, to come to the Intelligence Committee and let our staff explain why we believe we are right about this program. If you do, I believe my colleagues would agree with the members of the Senate Intelligence Committee and vote to stop this program next year.

I am pleased that the so-called "lone wolf" terrorist provision, which had passed the Senate twice since the attacks of 9/11, has been included in the intelligence reform legislation.

As all my colleagues who have read the 9/11 Commission Report know, the case of Zacarias Moussauoui-the "twentieth hijacker"-showed that current law was insufficient to address cases in which a foreign person is suspected of terrorist involvement but had no known connection to a terrorist organization. Current law under the Foreign Intelligence Surveillance Act, or FISA, required that the FBI show that any suspected terrorist must have links to a known foreign terrorist group before the special FISA court would issue an intelligence warrant to surveil or search the suspect. The Senate passed bill made this needed change and included reporting requirements necessary to ensure proper congressional oversight of how this provision was implemented. The bipartisan effort to enact this provision was led by Senators KYL and SCHUMER who proved that we can fight terrorism more effectively without giving up our privacy and cherished civil rights.

The 9/11 Commission identified the Moussaoui case as one instance where, if things had gone right and with a lucky break here or there, the disastrous attacks against the World Trade Center and the Pentagon may have been delayed, disrupted, or even stopped. I acknowledge the concerns some have expressed regarding the possibility this provision may be misused or unnecessarily extends the reach of the FISA statute. I believe that we can address these concerns with proper congressional oversight of how this authority is used and review of this provision prior to its 2005 sunset.

BREAK IN TRANSCRIPT

Mr. WYDEN. Mr. President, I wish to commend Senators Collins and Lieberman for their leadership in working round the clock for months to translate the key recommendations of the 9/11 Commission into reality. Thanks to their tireless and bipartisan effort, I and my colleagues today can point to a provision in the intelligence reform bill that will clear the fog of unnecessary secrecy that has for too long clouded our national intelligence picture. As the principal sponsor of this bipartisan provision, which will establish for the first time an appeals procedure that members of Congress may use regarding the classification of materials for national security purposes, I wish to explain how I envision this new process working.

The power to classify documents as secret is one of the most powerful tools in American Government, and it seems to be very much in vogue. Over-classification of documents is now the rule rather than the exception. Documents are sometimes classified for political reasons rather than to protect national security interests. Last year alone, the Federal Government spent $6.5 billion creating 14.3 million new classified documents. That is double the number of documents 10 years ago. This awesome power should be used judiciously, and it surely should not be the subject of old fashioned horse trading, as it was last summer during the preparation of the Senate Intelligence Committee's report on pre-Iraq war intelligence.

Last summer the Senate Intelligence Committee, on which I serve with my co-authors, spent more than 6 weeks arm-wrestling with the Central Intelligence Agency, CIA, over how much of the report on pre-Iraq war intelligence would be made public. Originally, the agency wanted to black out more than half of the report. In the end, "only 20 percent" of the report was blacked out.

At that time, there was no independent body to which the committee members could turn to find out what should and should not be classified for national security purposes. That is precisely the problem addressed by the provision crafted by Senators Lott, Bob Graham, Snowe, and myself. Our provision will give Congress for the first time a means of appealing classification decisions.

The provision gives Congress the authority to appeal classification decisions to an independent standing body, the Public Interest Declassification Board. This Board is made up of nine members with expertise in national security and related areas; five are appointed by the President and four by the bipartisan leadership of the Senate and House. Under the amendments made by section 1102, when any Member of Congress asks the Board to declassify a document or materials, the Board "shall advise the originators of the request in a timely manner whether the Board intends to conduct such review."

This means that if I or another Member of the Senate were to ask the Board to determine whether a document is properly classified for national security purposes, the Board must respond in a timely manner. "Timely" is defined as "early" or "soon." It is my expectation that whether it is a member of Congress or a committee seeking the Board's decision on the proper classification of information, the Board will get back to the requester expeditiously.

I am of the view that the problems in our intelligence community will not be addressed until the problems in the national security classification system are addressed. Thomas Kean, who chaired the 9/11 Commission, said that three-quarters of the classified material he reviewed for the Commission should not have been classified in the first place. Now, as the Senate acts on the conference report that strongly reflects the 9/11 Commission recommendations, it only makes sense to include this provision.
I have no illusions that this classification appeals mechanism will abolish the strongly rooted institutional bias in favor of overclassification, but taken in conjunction with the overall review of the standards used to classify information contained in other sections of the conference report, it is a very sound first step.

I am grateful to Senator Lott, my principal cosponsor, for championing this matter in conference. He and his staff worked nonstop to preserve this provision. I also want to acknowledge the efforts of Senator Bob Graham, another conferee, and his staff to defend our work.