Intelligence Reform and Terrorism Prevention Act of 2004 - Conference Report - Part 2

Mr. LIEBERMAN. I agree with the Senator's statements. I would like to elaborate on the CIA's role under this legislation. With respect to the CIA, the 9/11 Commission stressed that the DNI should no longer be responsible for managing the day-to-day activities of the CIA. The legislation has been very carefully crafted to ensure that the Director of the CIA is subordinate to and reports to the new DNI only, and not directly to the President, but that the DNI does not manage the CIA's daily activities. This situation is similar to how a CEO runs a company composed of various business divisions. The CEO is the undisputed head but focuses on high-level issues of strategy, policy, personnel, and budgets rather than getting involved in the daily workings of any single business division. Likewise, the DNI should not manage the CIA and other intelligence agencies. No CEO would run a company that way, nor should the DNI manage the Intelligence Community that way.

To emphasize that the DNI is no longer the head of the CIA, the legislation stipulates that the Office of the DNI-which houses the centers and other entities designed to unify and integrate agencies' capabilities-cannot be co-located with any other element of the intelligence community after October 1, 2008. This provision ensures that the DNI is not put in the inherently conflicted position of being both the CEO of the intelligence community and closely aligned with one of the subsidiary elements simultaneously.

The Senator from Maine previously stated that the DNI, not the CIA Director, is the President's principal intelligence advisor and is responsible for briefing the President or preparing the President's daily brief. The CIA Director is subordinate to and reports to the DNI only, and not directly to the President, both regarding intelligence activities and covert action. The CIA Director should concentrate on ensuring that the Central Intelligence Agency transforms its human intelligence and special activities capabilities to meet the difficult challenges of the 21st century. The CIA Director should also ensure that the Central Intelligence Agency trains analysts of the highest caliber for deployment to the centers and that whatever analysis is conducted by the CIA in-house-which would primarily be on topics for which there is no center-is done with the greatest independence, clearest objectivity, and best tradecraft.

I would like to discuss for a moment the CIA Director's salary. Under current law, the DCI is paid at Executive Schedule Level II pursuant to section 5313 of title 5, United States Code. The legislation places the DNI at Executive Schedule Level I but does not delete the reference to the DCI at Executive Level II. Section 1081(b) of the legislation makes clear that any reference to the DCI in the DCI's capacity as the head of the CIA in any law, regulation, document, paper, or other record of the United States shall be deemed a reference to the CIA Director. After passage of this legislation, the provision in current law that states that the DCI is paid at Executive Schedule Level II will therefore refer to the CIA Director.

Ms. COLLINS. I thank the Senator and agree with his statements. I previously discussed the purpose of the Office of the DNI, which is to house entities such as the centers which integrate and unify the efforts of the various intelligence agencies to accomplish intelligence missions. The legislation authorizes the DNI to create new entities within the Office of the DNI to respond to new challenges, such as new centers and ad hoc groups.

The legislation also authorizes the DNI to coordinate the performance by elements of the intelligence community of services of common concern that can be more efficiently accomplished in a consolidated manner. For example, there may be information technology services, security services, and personnel services that are being performed in duplicative or competitive manner by various entities across the intelligence community and that the DNI believes would be more efficiently performed-such as by exploiting economies of scale, or preventing discrepancies between agencies-when done in consolidated manner. The DNI may select one entity within the intelligence community to perform those services for the community. The DNI may also create a new entity within the Office of the DNI to perform such services. I expect that the DNI will exercise this authority in order to streamline the intelligence community, reduce discrepancies across agencies, and save resources that can be devoted to producing better intelligence.

I want to highlight two other DNI authorities. Current law precludes the DCI from directing, managing, or undertaking electronic surveillance or physical searches under the Foreign Intelligence Surveillance Act, FISA unless otherwise authorized by statute or executive order. This legislation also precludes the DNI from directing or undertaking such operations. As the legislation makes clear, the role of the Department of Justice and the Attorney General under FISA are unaffected by this legislation. However, this legislation does delete a restriction that now precludes the DNI from managing FISA collection. This change should better ensure that national intelligence collected under FISA is used efficiently and effectively for national purposes.
Current law also makes the CIA the manager of all human intelligence operations. The legislation changes that formulation, authorizing the CIA to manage human intelligence operations abroad. The intent of the legislation is not to have human intelligence operations split among the CIA, the FBI, and elements of other agencies with no one in charge. Instead, it is the DNI who is in charge. Of course, the DNI should not be spending his or her day managing human intelligence operations. Instead, the DNI should delegate his or her authority to an official within the intelligence community, when appropriate.
Indeed, the issue of delegation is critical. This legislation centralizes authority in the DNI in order to clarify responsibility, authority, and accountability for the intelligence community. However, the intent of this legislation is not that the DNI should retain all authority himself or herself. Like any good CEO, the DNI should delegate and decentralize. This legislation centralizes authority so that the DNI can build a network-with information, resources, and personnel flowing freely across the agencies of the intelligence community-that operates in a decentralized, fast, and flexible manner. For example, the DNI should delegate authority to the heads of the National Intelligence Centers so that they can utilize capabilities throughout the intelligence community to accomplish intelligence missions.

Included in this legislation is very strong tasking authority for the DNI. Under current law, the DCI has authority to task assets across the intelligence community to collect information. Pursuant to the National Security Act of 1947 as amended, the DCI controls the tasking of national intelligence assets. Section 403-3 of Title 50, United States Code, states explicitly that the DCI "determine[s] collection priorities, and resolve[s] conflicts in collection priorities levied on national collection assets." The President's latest Executive Order 13355 on the issue is even stronger: It gives the DCI authority to "manage collection tasking." This language is interpreted in practice that the DCI decides whether a satellite is to be positioned over North Korea or Iraq. Of course, the DCI consults closely with the Secretary of Defense-but the DCI is the final decision-maker. And there is no evidence that the military has been dissatisfied in recent conflicts with the supply of intelligence from national collection assets.

The legislation's provision regarding tasking authority merely sharpens current law by making the DNI's authority to task collection and analysis explicit. In this way, the bill essentially codifies current practice.

The DNI's tasking authority will be critical to the DNI's success. The 9/11 Commission envisioned a strong, empowered DNI, with more-not less-authority to control the collection and analysis of intelligence information. The Commission cites specifically the DCI's limited ability "to influence how ..... technical resources are allocated and used" as a problem. 9/11 Commission Report, p. 409. In a hearing before the Senate Armed Services Committee on August 17, 2004, Secretary of Defense Donald Rumsfeld spoke of the need to rebuild the intelligence community "along 21st century lines." According to Secretary Rumsfeld, this reorganization includes "a national intelligence director with authority for tasking collection assets across the government."
This legislation includes a provision that the Senator from Connecticut and I drafted requiring that the President issue guidelines to ensure the effective implementation and execution within the Executive branch of the authorities granted to the DNI under this legislation, in a manner that respects and does not abrogate the statutory responsibilities of department heads. The interaction among the DNI, department heads, and heads of agencies and entities within the intelligence community is critical and must be as smooth and efficient as possible. These guidelines will be important for ensuring such seamless interaction.

This provision does not authorize the President or department heads to override the DNI's authority as contained in this legislation. This legislation has carefully crafted authorities for the DNI-including budget, transfer, tasking, et cetera-that give the DNI sufficient authority to manage the Intelligence Community. This provision is not inteded and should not in practice trump or undermine in any way the DNI's authorities contained in the legislation.

In addition, the legislation amends the Secretary of Defense's authority to implement the DNI's decisions regarding the National Intelligence Program, contained in section 105(a) of the National Security Act of 1947 as amended, to ensure that the Secretary of Defense does not interact with the Intelligence Community in a way that is inconsistent with the DNI's authorities. This provision is another example of Congress's intent to create a strong DNI with sufficient authority to manage and be accountable for the Intelligence Community, including those elements within the Department of Defense.

Some observers have raised concerns that this legislation will impede the flow of intelligence to the warfighter. I believe that nothing is further from the truth. The warfighter will benefit from far-reaching intelligence reorganization that creates a DNI with significant authorities. The DNI will have the power to force the various Defense and non-Defense intelligence entities to work together seamlessly, creating a more accurate intelligence product that can be shared more quickly than today. The DNI would also be a single point of contact for the military-and the military would know whom to hold responsible if intelligence from national assets is inadequate. The DNI inevitably will prioritize the warfighter's need for intelligence, subject to the direction of the President as to overall intelligence priorities.

Mr. LIEBERMAN. I thank and agree with the Senator. This reform legislation will benefit our troops in the field, as well as better protect our citizens at home.

The 9/11 Commission found that the U.S. intelligence agencies are still organized to counter yesterday's challenges, not today's threats. During the Cold War, the enemy was well-known, and our intelligence was appropriately focused on determining its capabilities. We could tolerate then a stove-piped intelligence system where the FBI's intelligence efforts were separate and disconnected from overseas and military intelligence because our enemies were not attacking us from within our borders. We could tolerate then a separate overseas intelligence system run by the CIA because there was no clear reason to integrate foreign military and domestic intelligence. We could tolerate then a separate military intelligence system because we faced a military force comparable to our own, using conventional tactics against us, different from the threats we faced at home.

In the war on terror, all that has changed. The threat has become asymmetrical, meaning a weaker enemy attacks a stronger force at its points of vulnerability. That's how al-Qaeda operates, working in the shadows, attacking us on all fronts: domestic, overseas, civilian and military.

The cold fact is that the killing zone has expanded. This requires a much more integrated and more agile intelligence apparatus. It requires someone in charge with the authority to force disparate agencies to share information, to determine overall priorities, and to make sure we maximize the return on our enormous investment in intelligence so that we will be successful at thwarting an enemy determined to kill civilians as well as military combatants.

A modernized intelligence community will help us better protect both our citizens and our soldiers. Reforms that help achieve greater "unity of effort," as the 9/11 Commission put it, will clearly benefit our troops in the field because information critical to their safety and success could just as easily come from the CIA or the FBI as from the Pentagon's own intelligence systems. Similarly, the vital clues to stop the next attack on our own soil could come from the National Security Agency or the other national intelligence agencies within the Department of Defense. Fully connecting all these pieces is now critical to our total security effort.

But as the 9/11 Commission showed in its powerful report, we will not succeed if there is no one in charge who is able to forge unity among all of our intelligence agencies. A fundamental lesson of bureaucracy is that there will be no coordination at the working levels if there is no unified authority at the top. And there will be no real unified authority in the intelligence community unless a Director of National Intelligence has significant authority over budgets and people. Our troops battling in Iraqi streets must have, in real time, not simply traditional military intelligence on the force levels they face, but CIA-developed intelligence on the nature and identity of the al Qaeda and insurgent combatants firing at them.

Ms. COLLINS. I thank the Senator from Connecticut and agree with his statements. Mr. President, I wonder if my distinguished colleague from Connecticut would be kind enough to describe the National Counterterrorism Center provision in our bill.
Mr. LIEBERMAN. I thank the Senator from Maine. The 9/11 Commission's recommendation for a National Counterterrorism Center, NCTC, arises from two main findings. First in keeping with the Commission's general finding regarding the intelligence community, the intelligence agencies are not fully integrated in their efforts against terrorism. No one below the DCI has responsibility, accountability, and authority for the counterterrorism mission. Second, counterterrorism requires an integrated Executive branch-wide effort in which departments and agencies beyond intelligence must work together on a tactical level, with agility, and a rapid pace-like a network-but today "stovepipes" still dominate the Executive branch. Although departments and agencies are cooperating at unprecedented levels, the Commission concluded that such cooperation is more confederative than truly joint and integrated. To remedy these two problems, the Commission proposed that the NCTC be responsible for both joint counterterrorism intelligence and joint counterterrorism operational planning.

The legislation creates the NCTC along the lines of the Commission's model. Per the Commission's recommendation, the NCTC director is a Deputy Secretary-equivalent and with a dual line of reporting: (1) to the DNI regarding the NCTC's budget and programs and concerning intelligence matters, and (2) to the President regarding Executive branch-wide planning. This arrangement reflects the nature of the NCTC's mission, which is both to integrate intelligence-for which the DNI is the ultimate authority-and to conduct Executive branch-wide planning-which is beyond the DNI's jurisdiction.

As per the Commission's proposal, the NCTC will have two directorates to reflect its dual mission. The NCTC's Directorate of Intelligence will in essence be the national intelligence center for counterterrorism, but the NCTC will be more than just a strengthened TTIC. The NCTC will transcend the TTIC because the NCTC will clearly be preeminent in the intelligence community for counterterrorist analysis, will propose collection requirements to the DNI and otherwise integrate the intelligence community's capabilities, and will attract the best professionals from across the intelligence community. The tasks of this directorate are similar to those of any national intelligence center: integrating the activities of intelligence agencies such as the CIA and the National Security Agency; performing all-source analysis on transnational terrorism; being the repository for intelligence on transnational terrorism; conducting net assessment matching terrorist capabilities and intentions with U.S. vulnerabilities and countermeasures; and warning about potential threats.

Some observers question whether the NCTC will absorb all the counterterrorism analysts from across the intelligence community. However, those who question whether the NCTC would drain our precious supply of analysts actually prove the case for the NCTC-because there are so few analysts, we need to centralize this precious resource rather than dissipate them across the intelligence community. And the same reasoning applies to the National Counterproliferation Center and the National Intelligence Centers as well.

The NCTC's second directorate is for Strategic Operational Planning. This directorate would conduct strategic operational planning for the entire Executive branch-ranging from the combat commands, to the State Department, to the FBI's Counterterrorism Division to the Department of Health and Human Services to the CIA.

Witnesses at the Committee on Governmental Affairs hearing on August 26, 2004, argued that interagency operational planning is already taking place organically and thus there is no need for the NCTC. Yet the witnesses could only identify planning processes within their organizations in which representatives from other agencies were involved, not a single truly joint planning process across the Executive branch. The military had a process-but so did then-DCI George Tenet, who
had a daily counterterrorism meeting. And the multitude of joint planning processes drain personnel, time, and resources. Moreover, the lack of a central coordinating mechanism provides no safety net for an issue falling through the cracks when each agency-viewing it through a stovepipe-misses the issue's overall significance. There should be only one interagency strategic operational planning process, run by the NCTC, for counterterrorism.

The Commission has analogized this directorate to the J-3 Directorate of Operations of the Joint Staff, which works for the Chairman of the Joint Chiefs of Staff. J-3 does planning for operations conducted by the combatant commands. However, because the Chairman is not in the Defense chain of command, J-3 has no operational authority to enforce its plans on the combatant commands. The Chairman's stature gives J-3's plans a certain amount of persuasive authority, but J-3 has no direct authority over the combatant commands. As the Commission has stated explicitly, and as reflected in this legislation, the NCTC's Directorate of Strategic Operational Planning has no operational authority. Accordingly, the NCTC would not interfere with the military chain of command.

I would like to discuss in-depth the definition of strategic operational planning. Some observers have advocated confining the NCTC's operational planning function to high-level strategic issues, such as fashioning an Executive branch-wide strategy for winning Muslim "hearts and minds"-leaving more tactical planning to the agencies individually. An Executive branch-wide "hearts and minds" strategy would fall within the NCTC's purview, but the NCTC must reach below that strategic level in order to have the impact envisioned by the Commission and this legislation.

The legislation defines strategic operational planning to include "the mission, objectives to be achieved, tasks to be performed, interagency coordination of operational activities, and the assignment of roles and responsibilities." Examples of missions include destroying a particular terrorist group or preventing a terrorist group from forming in a particular area in the first place. Objectives to be achieved include dismantling a terrorist group's infrastructure and logistics, collapsing its financial network, or swaying its sympathizers to withdraw support. Tasks include recruiting a particular terrorist, mapping a terrorist group's network of sympathizers, or destroying a group's training camp. Examples of interagency coordination of operational activities include the hand-off from the CIA to the Department of Homeland Security and the FBI of tracking a terrorist as that terrorist enters the United States, or the coordination between CIA and special operations forces when operating against a terrorist sanctuary abroad.

With respect to the assignment of roles and responsibilities, the NCTC will not dictate to each department or agency which personnel or capabilities to utilize, unless the selection of the personnel or capabilities directly impact the mission such as a risk calculation or likely collateral damage.

Perhaps the best example of an issue for strategic operational planning is the hunt for Osama bin Laden. There is no policy dispute about the objective; all departments and agencies agree. But the mission inherently cuts across the Executive branch: Intelligence agencies must find bin Laden's whereabouts, diplomats must pressure countries to cooperate, public diplomacy must persuade his sympathizers to turn him in, and special operations forces must raid suspected sanctuaries. Some of the action is longer-term, such as using diplomatic and economic pressure to win countries' cooperation. Some of the action is very short-term. For example, the NCTC would recommend to the CIA and the Defense Department's Special Operations Command, SOCOM, whether to infiltrate or raid a sanctuary; indeed, one can imagine a situation in which the CIA recommends infiltrating while SOCOM recommends raiding, and now the only independent interagency body that can help resolve the issue is the National Security Council staff. If SOCOM objected, then the legislation's provision for the resolution of disputes would apply. If the CIA and SOCOM accepted the NCTC's plan, the NCTC would not dictate how the department or agency performed the mission, i.e., how the CIA infiltrated the group or SOCOM executed the raid.

An analogy for strategic operational planning is like lanes in a highway, each lane symbolizing an agency's expertise (e.g., special operations, espionage, and law enforcement). The NCTC will not tell each agency how to drive in its lane. But effective counterterrorism requires choosing which lane-meaning which type of activity, and thus which agency, to utilize in a particular situation. The NCTC would select the lane but would have no authority to order an agency to drive.
Returning to the discussion of the DNI's authorities, I note that the new DNI will take on a number of additional duties and responsibilities beyond what the DCI has today. I would ask my friend from Maine, how will the new DNI manage the new community functions that he or she will need to direct as head of the intelligence community?

Ms. COLLINS. I thank my colleague and agree with his statements. The new DNI will not need to create a staff from scratch to manage the intelligence community. Today, the DCI relies on the Deputy Director of Central Intelligence for Community Management, DDCI/CM, and that official's staff to coordinate the activities of the intelligence community. This professional staff already has substantial experience that will be invaluable to the DNI in managing the intelligence community. This legislation supplants the DDCI/CM but transfers the official's staff as the DNI considers appropriate to the Office of the DNI. The DNI can then build on this staff as necessary to implement the DNI's new authorities.

Finally, I would like to describe the implementation of this legislation. The legislation does not permit the current DCI to become the DNI without going through the Presidential nomination and Senate confirmation process for the DNI position. This legislation gives the DNI different authorities and responsibilities than the DCI has today. As such, the Senate will need to provide advice and consent to the President's selection for the DNI.

Title I of the intelligence reform legislation takes effect not later than six months after the Act's enactment. The legislation envisions that the President will decide upon the effective date for title I and may effectuate parts of title I at different times within that 6-month period. For example, the President could decide that all or parts of title I become effective upon the confirmation of the DNI. Until such time as the President determines-but in no event later than six months after enactment-the DCI will remain head of the intelligence community and the DDCI/CM and the various assistant DCIs will continue to report to him. The legislation requires that the President submit an implementation report to Congress not later than 180 days after the act's effective date, but it is desirable that this report be submitted as soon as possible.

Some provisions in title I explicitly state that they are effective on the act's date of enactment, namely the transfer of the TTIC or its successor to the NCTC and the transfer of the staff of the DDCI/CM to the Office of the DNI as appropriate. The NCTC has already been created by Executive order, absorbing the TTIC. With respect to the staff of the DDCI/CM, that staff does not cease to exist upon the act's enactment but rather becomes available for transfer to the Office of the DNI after the Office of the DNI is established.

This legislation requires the DNI to take various actions within 180 days of the act's enactment, including submitting a report to Congress concerning operational coordination between the CIA and the Defense Department, assigning an individual or entity to be responsible for analytic integrity, and identifying an individual to serve as an ombudsman. The DNI also shall prescribe regulations and other directives not later than one year after the act's enactment. Thus we hope that the President will move speedily to nominate an individual to serve as the DNI. The threats arrayed against the United States do not afford us a grace period.

INFORMATION SHARING

Mr. LIEBERMAN. Mr. President, I wish to call attention to an important part of this legislation-the provision in section 1016 on information sharing.

The effective use of information, from all available sources, is essential to the fight against terrorism. The 9/11 Commission, in fact, concluded that the biggest impediment to all-source analysis, and to a great likelihood of "connecting the dots," is the resistance to information sharing. As the commission documented, in the period preceding September 11, 2001, there were instances o potentially helpful information that was available but that no person knew to ask for; information that was distributed only in compartmented channels; and information that was requested but could not be shared.

As a result of its findings, the commission urged that a new approach to information sharing be developed that would help move from a "need-to-know" culture of information protection to a "need-to-share" culture of integration. Noting that no single agency could develop a meaningful information sharing system on its own, the commission recommended a new, government-wide approach, based on the conceptual model of the Systemwide Homeland Analysis and Resource Exchange SHARE Network proposed by a task force of leading professionals assembled by the Markle Foundation.

This legislation puts the commission's information sharing recommendations in place, requiring that the President establish a new, government-wide Information Sharing Environment ISE to share information among federal, State, local and tribal entities, and, where appropriate, with the private sector which owns or controls much of the nation's critical infrastructure)--in a manner consistent with national security and with the protection of privacy and civil liberties.

Ms. COLLINS. I agree wholeheartedly with my colleague about the importance of these information sharing provisions. I also want to emphasize that the ISE is not some mammoth new database. Indeed, it is not just technology, but rather represents a combination of technologies and policies designed to facilitate the appropriate sharing of terrorism information.

Section 1016 includes a list of attributes the ISE is required to have. These include such things as facilitating the sharing of information among those who have differing levels of access or clearance or different capacities to make use of the information-i.e., providing information from the beginning in its most shareable form, so that the maximum number of individuals can access the information in at least some meaningful form at its earliest point of consumability-while having additional details available to those who are granted appropriate access; in this way, the right information gets to the right consumer at the right time. It also includes building on existing systems where possible, rather than creating whole new, and potentially overlapping, systems, and employs an information access management approach that controls access to the data rather than just systems and networks without sacrificing security. And it includes incorporating protections for individuals' privacy and civil liberties from the very beginning-both in the policies of the environment and in technologies and processes to ensure that the policies are adhered to.

Mr. LIEBERMAN. Another important aspect of this provision is the mechanisms it puts in place to ensure that this new approach to information sharing actually gets implemented. We have known for some time now about the critical importance of information sharing in the fight against terrorism. But translating generalized calls for improved information sharing into a working, fundamentally changed system requires hard and sustained work. To help ensure that this ambitious new effort will succeed, and that the ISE is actually implemented as envisioned, the legislation provides for a staged development process, with periodic reporting and the promise of significant and sustained Congressional oversight.

The first benchmark in the ISE development process is 180 days after enactment: by this date, a review must be conducted of current agency capabilities; in addition, a description of the technological, legal and policy issues presented by the creation of the ISE, and how they will be addressed, must be submitted to the President and Congress. Within 270 days of enactment, the President is required to issue guidelines for acquiring, accessing, sharing, and using information, and, in consultation with the Privacy and Civil Liberties Oversight Board established in section 1061 of the legislation, guidelines to protect privacy and civil liberties in the development and use of the ISE. These two sets of guidelines are critical in defining the framework of the ISE, and their issuance will provide an important opportunity for Congress to evaluate the proposed direction of the ISE. Within a year, a detailed implementation plan for the ISE, including budget estimates and proposed performance measures, must be submitted to Congress, which will provide for a further opportunity for Congressional evaluation. Finally, in 2 years, and annually thereafter, the President must submit a report to Congress on the state of the ISE and of information sharing across the Federal Government.

Ms. COLLINS. In addition to the step-by-step development process my colleague has described, I would also note that the other key means by which the legislation seeks to ensure the successful implementation of the ISE is through the appointment of a program manager. Not later than 120 days after enactment of the legislation, the President is required to designate an individual who is to be responsible for information sharing across the Federal Government. By placing a single individual in charge of the development of the ISE, the legislation seeks to ensure the accountability and focus necessary to accomplish this critically important task.

Although the President has discretion to determine whom to designate as program manager, it is essential, and required by subsection 1016(f)(1), that the program manager have and exercise government-wide authority; the ISE will involve the sharing of terrorism-related information from across the government, including from entities outside the intelligence community-whether bioterror information from the Centers for Disease Control or relevant border information from Customs and immigration offices at the Department of Homeland Security-so that the program manager will be someone with responsibilities that cut across the Federal Government as well. Although the DNI is, and will continue to be, responsible for setting information sharing standards throughout the intelligence community (a responsibility expressly recognized in subsection 1016(e)(10)(A)), it is not our intent that the DNI also assume the further responsibilities of program manager. We expect and intend that whomever is designated as program manager will have the development of the ISE as their sole or primary responsibility, and we believe that it is desirable that the individual have management expertise in enterprise architecture, information sharing and interoperability.
The legislation provides that the program manager is to serve for 2 years, during the initial development of the ISE, to ensure that the project gets off to a sound start. As part of the implementation plan to be submitted to Congress after one year, the program manager is to recommend a future management structure for the ISE, including a recommendation as to whether the position of program manager should continue. During this two-year start up period, the program manager will be assisted in his or her efforts by an Information System Council established by the legislation and based on the existing Information System Council established by the President through executive order. The council, made up of representatives from agencies participating in the ISE, will not only advise the President and the program manager, but also, among other things, provide a means of coordinating among the various agencies participating in the ISE, helping to resolve interagency disputes that may arise. In performing its duties, the council is to consider input from those outside the Federal Government as well-including state, local, and tribal officials and those in the private sector who are potential participants in the ISE or who have relevant policy or technical expertise.

I also note the legislation provides that the individual agencies that possess terrorism information or otherwise participate in the ISE are to fully cooperate in the development of the ISE. The cooperation of all relevant agencies is critical to the success of this government-wide information sharing effort, and agencies can expect Congressional oversight to ensure that they are planning for, and fully contributing to, the construction of the ISE.

PRIVACY AND CIVIL LIBERTIES OVERSIGHT BOARD

Mr. LIEBERMAN. Mr. President, among its other significant provisions, the bill before the Senate, S. 2845, establishes a new Privacy and Civil Liberties Oversight Board. Waging the war on terror has required that the federal government take steps that consolidate governmental authority and increase the government's presence in our lives. As the 9/11 Commission observed, this shift of power and authority to the government, while necessary, calls for "an enhanced system of checks and balances to protect the precious liberties that are vital to our way of life." Following the commission's recommendation on this point, this bill creates, for the first time, a Board that can look across the federal government and ensure that liberty concerns are appropriately considered in the policies and practices of the executive branch.

Ms. COLLINS. Specifically, the board established in the bill is to be made up of five members, who are to be appointed by, and serve at the pleasure of, the President. Two of the five members-the chairman and vice-chairman-are also required to be Senate-confirmed. To help ensure an independent and effective board, all of the members are to come from outside the federal government and are expected to be people of stature, selected on the basis of their achievements, experience and independence. All of the members of the board are expected to devote significant time to this important endeavor, and the chairman may be appointed to a full-time position; given the broad responsibilities of the board, we believe that having a full-time chairman though not required would usually be the wisest course.

The Privacy and Civil Liberties Oversight board's purpose is to ensure that privacy and civil liberties concerns are appropriately considered in the implementation of all laws, regulations, and policies that are related to efforts to protect the Nation against terrorism. The board is empowered to carry out its mission in two equally important ways. First, the board is to advise policy makers at the front end, to ensure that when executive branch officials are proposing, making or implementing policy, they appropriately consider and protect privacy and civil liberties. Second, the board is to conduct oversight, by investigating and reviewing government actions at the back end, reviewing the implementation of particular government policies to see whether the government is acting with appropriate respect for privacy and civil liberties and adhering to applicable rules. Further, the bill provides the board with the tools it will need to carry out its functions.

Mr. LIEBERMAN. I agree with the Senator from Maine that the board will have the tools necessary to carry out its purpose. In its advice role, the board has a broad mandate to review and provide advice to the President and to federal agencies on proposed policies, whether or not codified formally in regulations, and on the implementation of new and existing laws, regulations and policies, in order to ensure that privacy and civil liberties are appropriately considered. Following a related 9/11 Commission recommendation, the board is further specifically directed, when providing advice to executive branch officials on proposals to retain or enhance particular governmental powers, to consider whether the need for those powers have been balanced against the need to protect civil liberties and privacy and whether there are adequate guidelines and supervision to ensure that the use of the power is properly confined and that privacy and civil liberties are protected.

Although the board has no authority to veto or delay executive branch actions, executive branch officials are expected to routinely consult with the board, and the board to routinely review and provide input, on the development and implementation of policies intended to protect the Nation a against terrorism; indeed, a suggestion in conference negotiations that would have limited the board to providing advice only when requested by the head of an agency was specifically rejected. It is our intention that the board become an institutionalized voice that ensures that privacy and civil liberties concerns are always considered and, where appropriate incorporated, in policy making.

With respect to its oversight role, the board has broad authority to review and investigate executive branch actions, whether limited to a single agency or involving interagency policies, to determine whether the government is appropriately protecting privacy and civil liberties. To carry out this function effectively, the board has been given investigative powers similar to those of a government-wide inspector general. Specifically, the and is to have access to all relevant documents and materials in the executive branch, including classified information, and to all relevant federal officials to interview them and take statements. Departments and agencies, moreover, are required to cooperate with the board: if the board believes information or assistance has been unreasonably refused, it is to notify the relevant agency or department head, who, unless the information cannot lawfully be provided to the board, is to ensure compliance with the request.

The bill provides an exception to the requirement that an agency comply with a board request for information only in cases where the DNI in consultation with the Attorney General, determines that withholding information from the board is necessary to protect the national security interests of the United States or where the Attorney General determines that withholding the information is necessary to protect ongoing sensitive law enforcement or counterterrorism operations. In light of the fact that board members must in any event have appropriate clearances to see classified information, as well as the expected nature of the board's work, we anticipate that these exceptions will rarely need to be invoked.

In addition to getting information from the executive branch, the board may also request information and assistance from State, local and tribal officials, and it may request documents or testimony from others outside the executive branch, including private parties who may have relevant information, such as former federal employees and government contractors. Although the board does not itself have the authority to subpoena documents from private parties, if the card is unable to obtain relevant information from a nongovernmental party, it may refer the matter to the Attorney General, who may take such action as appropriate to ensure compliance, including the use of compulsory process.

I would also like to note that although the board's jurisdiction is not intended to extend beyond matters related to efforts to protect the Nation against terrorism-to, for example, claims that the IRS is not adequately protecting the confidentiality of tax returns-it is our intent its jurisdiction be interpreted inclusively, to reach, for example, laws that were originally adopted to
protect against terrorism, but may now have been turned towards other purposes.

Ms. COLLINS. I thank my colleague for his clear explanation. Just as important to the other authorities provided to the board is ensuring some transparency of the activities of the board. Transparency helps to give confidence to the American people that the protection of their civil liberties and privacy is being addressed as we take actions to further protect our Nation from terrorism. To that end, the board is to report to Congress at least annually on its activities, and may do so more frequently, as would be expected should the board complete an important investigation or otherwise make findings or recommendations of which Congress would wish to be apprised. The bill requires that the board's reports to Congress be unclassified to the greatest extent possible, in order to facilitate public discussion of the board's activities; where it is necessary to include classified information in the reports, it is to be included in a separate classified annex. Whether and when to release reports directly to the public or to otherwise engage in activities that directly involve and inform the public is left to the discretion of the board, but we believe that given the public importance of the issues entrusted to the Privacy and Civil Liberties Oversight Board, openness is called for and will ultimately foster public trust that the government is appropriately protecting privacy and civil liberties as it continues to vigorously fight the war on terror.

Also intended to foster this public trust is the fact that, while the board is exempted from the requirements of the Federal Advisory Committee Act because, as a permanent, ongoing entity, it does not fit comfortably into the mold of the usual subjects of that act, the board is expressly subject to the Freedom of Information Act, like any other agency.

Mr. LIEBERMAN. I would also like to point out that the bill encourages federal departments and agencies involved in law enforcement and anti-terror functions to designate an agency official to serve as a privacy and civil liberties officer. Such officers, modeled on similar officers at the Department of Homeland Security and newly created in the Office of the DNI, can play an important role in providing day-to-day advice and insights on civil liberties and privacy matters and conducting internal reviews. Because such officers would be highly knowledgeable about their own agencies, they could augment the role of the board and help address issues early on. The role of such officers would be distinct from those of the new chief privacy officers created in the Omnibus Appropriations bill. Those officers would be largely responsible for focusing on informational privacy issues and not responsible for addressing broader civil liberties concerns.

Ms. COLLINS. I would like to thank my friend for working with me on these very important provisions. In the wake of the terrorist attacks on September 11, 2001, during his joint address to Congress, the President called on all Americans to "uphold the values of America and remember why so many have come here. We're in a fight for our principles, and our first responsibility is to live by them." Indeed, as we improve government to better secure our Nation against future attacks, we must at the same time protect those American values that define our free society. These freedoms and values are what define us as Americans and what defines our Nation. Since the inception of our Nation, there has been much sacrifice in order for us to have the freedoms we enjoy today. These liberties are what have been entrusted to us to protect. That is why, as we protect our Nation from future terrorist attacks, we also must ensure that we do no trample on the very values that the terrorists seek to destroy.

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The PRESIDING OFFICER. The Senator from Maine is recognized.

Ms. COLLINS. Mr. President, I ask unanimous consent that a list of my staff members who worked so hard on this bill over so many months be printed in the RECORD at this point.

There being no objection, the material was ordered to be printed in the RECORD, as follows:

Michael, Bopp, Jane Alonso, Deborah Barger, Don Bumgardner, Jen Burita, Elissa Davidson, Ann Fisher, Jason Foster, Jennifer Gagnon, Priscilla Hanley, Johanna Hardy, Jennifer Hemingway, Keith Janssen, David Kass, Bruce Kyle.
Gordon Lederman, Lesley Leger-Kelley, James McKay, Bill Murray, Jon Nass, Amy Newhouse, Bill Priestap, Alec Rogers, Kate Scontras, Amber Smith, Heather Smith, Cornelius Southall, Michael Stern, Sarah Taylor, Monica Wickey, and Keith Herrington.
Ms. COLLINS. Mr. President, I also want to list the conferees on this bill. Contrary, perhaps, to the implications of what we have just heard, this was an extraordinarily open conference, where Democrats and Republicans negotiated side by side in every single meeting. It was a bipartisan effort.

Senators Lott, Roberts, Voinovich, Coleman, Sununu, DeWine, Levin, Rockefeller, Durbin, Graham of Florida, and Senator Lautenberg were the Senate conferees on this important bill. I thank each of them personally for how hard they worked. Each of them contributed greatly to the final product, and I am very grateful for their support.

I wish to also respond to the concept that somehow this issue was rushed. The fact is there have been numerous reports and commissions that have urged intelligence reform going back to 1954. Over and over again, problems were identified in our intelligence structure, even as our country became more vulnerable to asymmetric threats, such as terrorist groups.
The 9/11 Commission, which did, in my view, an outstanding job, reviewed more than 2.5 million pages of documents, interviewed more than 1,200 individuals, held 19 days of hearings, and took public testimony from 160 witnesses. Congress held 44 hearings on the 9/11 Commission's report and recommendations.

The Governmental Affairs Committee, which I am honored to chair, alone held 8 days of hearings and marked up this legislation for 2 full days. We were on the Senate floor for nearly 2 weeks. We considered hundreds of amendments to this bill. The conference on the bill lasted nearly 2 months and received a great deal of attention.

I note that we have made substantive changes to only two provisions in the conference report since November 20 when the conference agreement almost came to the Senate floor.

The November 20 language was widely circulated. It included being provided to the staff of the distinguished senior Senator from West Virginia.

I assert that this was an extraordinarily inclusive process, and all the Members of the Senate have had ample time to review the conference report since, with just two exceptions, which have been highly publicized. It is the same language, for the most part, except for technical changes, as we reported it on November 20.

I wanted to make those points. I know there are other Members desiring to speak. I will yield the floor, but I reserve the remainder of my time.

Finally, Mr. President, I note that the Senator from New Hampshire, Mr. Sununu, wishes to speak in favor of the conference report. I am prepared to yield him some of my time, but I am not certain how much time I have remaining. If I could be informed by the Presiding Officer as to how much time I have remaining, that would be helpful.

The PRESIDING OFFICER. The Senator has 10 minutes remaining.

Ms. COLLINS. I will yield at the appropriate time 5 of my remaining minutes to the Senator from New Hampshire. I thank the Chair.

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Ms. COLLINS. Mr. President, I do want to clarify apart from this issue that I believe there was an informal-I thought we had made it formal-understanding that Senator Stevens would follow Senator Byrd's remarks, and Senator Warner would follow Senator Stevens' remarks. But all the Senator from Florida is trying to do-and I very much appreciate his endorsement of the bill-is to yield back the remainder of Senator Byrd's time at the request of Senator Byrd.

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The PRESIDING OFFICER (Mr. Sununu). The Senator from Maine.

Ms. COLLINS. Mr. President, let me make a brief comment in response to the recent discussion on the chain of command language.

First, I am very pleased we were able to reach agreement with the chairman of the House and Senate Armed Services Committee on this language. Since I did not see the documents that the chairman put into the RECORD, I state very clearly for the record that nothing in the final language in this bill in any way weakened the authority of the new National Intelligence Director.

In fact, the Director of National Intelligence will have significant budgetary and other authorities and that makes sense. We do not want to create just another layer of bureaucracy. We do not want to create a figurehead. We want to empower this individual with the authority to be able to marshal the resources to counter the very serious threats we face both today and in the future.

In my judgment, nothing in this bill has ever hindered military operations or readiness, but I am pleased we were able to draft some additional language that has provided some comfort to those who were concerned.

All Members have our first priority to the brave men and women who are fighting on the front lines of freedom. That is why this bill was very carefully drafted to keep tactical and joint military intelligence programs under the exclusive control of the Pentagon but to make sure those national assets which serve multiple customers-including the President's National Security Council, our covert agents in the CIA, as well as our military-to ensure that those

assets are controlled by the Director of National Intelligence just as today they are controlled by the Director of the CIA in his role as head of the intelligence community.

I am told by those who have worked entire careers with the CIA that the Department of Defense has always been very happy with the relationship that allows a priorities committee to work out and resolve any conflicts in the use of these national assets. Certainly, this language and this bill as a whole, the reorganization as a whole, will improve the quality of intelligence that is provided to our troops, as well as making civilians at home safer. That is our goal. That is what this legislation achieves.
Mr. President, the Senator from Arizona has arrived. He has been a stalwart proponent of reform. He has worked very closely with Senator Lieberman and me. I am very grateful for his leadership and support.

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The PRESIDING OFFICER. The Senator from Maine.

Ms. COLLINS. Mr. President, we are on the verge of voting on historic legislation, landmark legislation that will reform our intelligence structure to allow us to better fight the war against terrorism and to counter future security threats. We will be taking a structure that is characterized by stovepipes, by a lack of sharing of information, that was so indicated in the 9/11 Commission Report as being a major cause of intelligence failures. The 9/11 Commission, over and over again, described the good people in our Government straining against structures that did not allow them to communicate effectively vital information; thus, no one assembled the pieces of the puzzle that might have allowed us to detect the hijackers' plot against our country.
We have reorganized the intelligence agencies into a new structure where one person clearly will be accountable and responsible. The new Director of National Intelligence will be able to marshall the resources we need to counter the threat to our citizens. We have a National Counterterrorism Center, a National Counterproliferation Center designed to bring together analysts from all the agencies so they can pool their talents, analyze the intelligence, and produce better informed reports.
This legislation will help make America more secure, and that is what this entire debate is all about. As my colleague, Senator Lieberman, has eloquently stated: The status quo failed us. Our bill may not be perfect. As the Presiding Officer indicated, no bill is. But it represents an enormous improvement over the status quo.

We cannot turn away from the intelligence failures that have cost the lives of thousands of American citizens. We have to act. I am very proud that the Senate today will approve historic legislation that will make our country more secure.

Mr. President, I know Senator Frist plans to come down and speak right before the vote, and he has arrived on cue. I do want to take this opportunity to request the yeas and nays.

The PRESIDING OFFICER. Is there a sufficient second?

There appears to be a sufficient second.

The yeas and nays were ordered.

Ms. COLLINS. I thank all of my colleagues for their help and support.